<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
------------------------
THE RAYMOND CORPORATION
(NAME OF SUBJECT COMPANY)
BT INDUSTRIES AB
LIFT ACQUISITION COMPANY, INC.
(BIDDERS)
------------------------
COMMON STOCK, PAR VALUE $1.50 PER SHARE
(TITLE OF CLASS OF SECURITIES)
------------------------
0007546881
(CUSIP NUMBER OF CLASS OF SECURITIES)
CARL-ERIK RIDDERSTRALE
BT INDUSTRIES AB
SVARVARGATAN 8
SE-595 81
MJOLBY, SWEDEN
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
------------------------
COPY TO:
MAUREEN S. BRUNDAGE, ESQ.
WHITE & CASE
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
CALCULATION OF FILING FEE
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<TABLE>
<CAPTION>
AMOUNT OF FILING
TRANSACTION VALUATION* FEE**
- ---------------------------------------------------------------------------------------------
<S> <C>
$359,277,270.00........................................................ $71,856.00
</TABLE>
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*FOR PURPOSES OF CALCULATING THE FILING FEE ONLY. THIS CALCULATION ASSUMES THE
PURCHASE OF 10,887,190 SHARES OF COMMON STOCK, PAR VALUE $1.50 PER SHARE, AT A
PRICE PER SHARE OF $33.00.
** 1/50 OF 1% OF 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.
AMOUNT PREVIOUSLY PAID: FILING PARTY:
FORM OR REGISTRATION NO.: DATE FILED:
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<PAGE> 2
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is The Raymond Corporation, a New
York corporation (the "Company"), and the address of its principal
executive offices is 20 South Canal Street, Greene, New York 13778.
(b) This Statement relates to the offer by Lift Acquisition Company,
Inc., a New York corporation (the "Purchaser"), to purchase all the
outstanding shares of common stock, par value $1.50 per share, of the
Company (the "Shares") (including the associated Common Stock Purchase
Rights issued pursuant to the Rights Agreement, dated as of March 1,
1997, between the Company and the Rights Agent named therein, as
amended) at a price of $33.00 per Share, net to the seller in cash (the
"Offer Price"), without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase dated June 20, 1997
(the "Offer to Purchase") and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto,
collectively constitute the "Offer"), copies of which are attached
hereto as Exhibits (a)(1) and (a)(2), respectively. Information
concerning the number of outstanding Shares is set forth in the
"Introduction" of the Offer to Purchase and is incorporated herein by
reference.
(c) Information concerning the principal market in which the Shares are
traded and the high and low sales prices of the Shares for each
quarterly period during the past two years is set forth in Section 6
("Price Range of Shares; Dividends") of the Offer to Purchase and is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(d); (g) This Statement is being filed by the Purchaser, a New York
corporation, and BT Industries AB, a corporation organized under the
laws of the Kingdom of Sweden ("Parent"). The Purchaser is an indirect
wholly-owned subsidiary of Parent. Information concerning the principal
businesses and the addresses of the principal offices of the Purchaser
and Parent is set forth in Section 8 ("Certain Information Concerning
the Purchaser and Parent") of the Offer to Purchase and is incorporated
herein by reference. The name, business addresses, present principal
occupations or employment, material occupations, positions, offices or
employment during the last five years and citizenship of the members of
the Board of Directors and the executive officers of Parent, and the
directors and executive officers of the Purchaser, are set forth in
Schedule I to the Offer to Purchase and are incorporated herein by
reference.
(e), (f) During the last five years, neither of the Purchaser nor
Parent and, to the knowledge of the Purchaser and Parent, none of the
members of the Board of Directors or the executive officers of Parent,
and none of the directors or executive officers of the Purchaser, has
been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result
of which any such person was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation
of such law.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) The information set forth in Sections 10 ("Background of the
Offer; Contacts with the Company") and 11 ("Purpose of the Offer; Plans
for the Company; Merger Agreement") 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 ("Source and Amount of
Funds") of the Offer to Purchase and the documents attached as Exhibits
(b)(1) and (b)(2) hereto are incorporated herein by reference.
<PAGE> 3
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) The information set forth in the "Introduction" and Sections 11
("Purpose of the Offer; Plans for the Company; Merger Agreement") and
13 ("Effect of the Offer on the Market for the Shares; Exchange Listing
and Exchange Act Registration") of the Offer to Purchase is
incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) None of the persons named in Item 2 hereof or any of their
affiliates or majority-owned subsidiaries beneficially own shares of
the Company.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the "Introduction" and Sections 10
("Background of the Offer; Contacts with the Company") and 11 ("Purpose
of the Offer; Plans for the Company; Merger Agreement") of the Offer to
Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in Section 16 ("Fees and Expenses") of the
Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 8 ("Certain Information Concerning
the Purchaser and Parent") of the Offer to Purchase is incorporated
herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in Section 11 ("Purpose of the Offer;
Plans for the Company; Merger Agreement") of the Offer to Purchase is
incorporated herein by reference.
(b)-(c) The information set forth in the "Introduction" and Section 15
("Certain Legal Matters; Regulatory Approvals") of the Offer to
Purchase is incorporated herein by reference.
(d) The information set forth in Sections 9 ("Source and Amount of
Funds") and 13 ("Effect of the Offer on the Market for the Shares;
Listing and Exchange Act Registration") of the Offer to Purchase is
incorporated herein by reference.
(e) Not applicable.
(f) The information set forth in the Offer to Purchase, the Letter of
Transmittal and the Agreement and Plan of Merger dated as of June 16,
1997 among Parent, the Purchaser and the Company, copies of which are
attached hereto as Exhibits (a)(1), (a)(2) and (c)(2), respectively,
is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit (a)(1) Offer to Purchase.
Exhibit (a)(2) Letter of Transmittal with respect to the Shares.
Exhibit (a)(3) Form of letter, dated June 20, 1997, to brokers, dealers,
commercial banks, trust companies and other nominees.
Exhibit (a)(4) Form of letter to be used by brokers, dealers, commercial banks,
trust companies and nominees to their clients.
Exhibit (a)(5) Guidelines for Substitute Form W-9.
<PAGE> 4
Exhibit (a)(6) Press Release, dated June 16, 1997.
Exhibit (a)(7) Form of newspaper advertisement, dated June 20, 1997.
Exhibit (a)(8) Notice of Guaranteed Delivery.
Exhibit (b)(1) Revolving Credit Facility Agreement (USD 80,000,000)
dated 13 June, 1997 between Parent as Borrower and Swedbank
(Sparbanken Sverige AB (publ)) as Lender.
Exhibit (b)(2) Revolving Credit Facility Agreement (USD 400,000,000) dated
13 June, 1997 between Parent as Borrower and Swedbank
(Sparbanken Sverige AB (publ)) as Lender.
Exhibit (c)(1) Confidentiality Agreement, dated April 4, 1997, between Parent
and the Company.
Exhibit (c)(2) Agreement and Plan of Merger, dated as of June 16, 1997, by
and among Parent, the Purchaser and the Company.
Exhibit (d) None.
Exhibit (e) Not applicable.
Exhibit (f) None.
<PAGE> 5
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.
BT INDUSTRIES AB
BY: /s/ CARL-ERIK RIDDERSTRALE
------------------------------------------
NAME: Carl-Erik Ridderstrale
TITLE: Chief Executive Officer
By: /s/ PER ZAUNDERS
------------------------------------------
NAME: Per Zaunders
TITLE: Chief Financial Officer
LIFT ACQUISITION COMPANY, INC.
By: /s/ CARL-ERIK RIDDERSTRALE
------------------------------------------
NAME: Carl-Erik Ridderstrale
TITLE: President
Dated: June 20, 1997
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------------- ---------------------------------------------------------------
<S> <C> <C>
Exhibit (a)(1) Offer to Purchase.
Exhibit (a)(2) Letter of Transmittal with respect to the Shares.
Exhibit (a)(3) Form of letter, dated June 20, 1997, to brokers, dealers,
commercial banks, trust companies and other nominees.
Exhibit (a)(4) Form of letter to be used by brokers, dealers, commercial
banks, trust companies and nominees to their clients.
Exhibit (a)(5) Guidelines for Substitute Form W-9.
Exhibit (a)(6) Press Release, dated June 16, 1997.
Exhibit (a)(7) Form of newspaper advertisement, dated June 20, 1997.
Exhibit (a)(8) Notice of Guaranteed Delivery.
Exhibit (b)(1) Revolving Credit Facility Agreement (USD 80,000,000) dated 13
June, 1997 between Parent as Borrower and Swedbank
(Sparbanken Sverige AB (publ)) as Lender.
Exhibit (b)(2) Revolving Credit Facility Agreement (USD 400,000,000) dated 13
June, 1997 between Parent as Borrower and Swedbank
(Sparbanken Sverige AB (publ)) as Lender.
Exhibit (c)(1) Confidentiality Agreement, dated April 4, 1997, between Parent
and the Company.
Exhibit (c)(2) Agreement and Plan of Merger, dated as of June 16, 1997, by and
among Parent, the Purchaser and the Company.
Exhibit (d) None.
Exhibit (e) Not applicable.
Exhibit (f) None.
</TABLE>
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
THE RAYMOND CORPORATION
AT
$33.00 NET PER SHARE
BY
LIFT ACQUISITION COMPANY, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY
OF
BT INDUSTRIES AB
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JULY 18, 1997, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY 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 AND (II) THE EXPIRATION OR TERMINATION OF ANY APPLICABLE
WAITING PERIOD (AND ANY EXTENSION THEREOF) UNDER THE HART-SCOTT-RODINO ANTITRUST
IMPROVEMENTS ACT OF 1976, AS AMENDED. THE OFFER IS ALSO SUBJECT TO OTHER TERMS
AND CONDITIONS. SEE SECTION 14.
THE BOARD OF DIRECTORS OF THE RAYMOND CORPORATION HAS UNANIMOUSLY APPROVED
EACH OF THE OFFER AND THE MERGER (AS DEFINED HEREIN), UNANIMOUSLY DETERMINED
THAT EACH OF THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF,
THE SHAREHOLDERS OF THE COMPANY AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
---------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of the shares of
common stock, par value $1.50 per share (which include the associated common
stock purchase rights, collectively, the "Shares"), of The Raymond Corporation
owned by such shareholder 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)
evidencing tendered Shares, and any other required documents, to the Depositary
(as defined herein) or tender such Shares pursuant to the procedures for
book-entry transfer set forth in Section 3 or (ii) request such shareholder's
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for such shareholder. Any shareholder 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 shareholder desires to tender such Shares.
Any shareholder who desires to tender Shares and whose certificates
evidencing 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 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. Additional copies of this
Offer to Purchase, the Letter of Transmittal or other related tender offer
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks or trust companies.
---------------------
The Dealer Manager for the Offer is:
SALOMON BROTHERS INC
---------------------
The date of this Offer to Purchase is June 20, 1997.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
INTRODUCTION.......................................................................... 1
THE TENDER OFFER...................................................................... 2
1. Terms of the Offer.............................................................. 2
2. Acceptance for Payment and Payment for Shares................................... 4
3. Procedures for Tendering Shares................................................. 5
4. Withdrawal Rights............................................................... 7
5. Certain United States Federal Income Tax Consequences........................... 8
6. Price Range of Shares; Dividends................................................ 9
7. Certain Information Concerning the Company...................................... 9
8. Certain Information Concerning the Purchaser and Parent......................... 11
9. Source and Amount of Funds...................................................... 13
10. Background of the Offer; Contacts with the Company.............................. 14
11. Purpose of the Offer; Plans for the Company; Merger Agreement................... 16
12. Dividends and Distributions..................................................... 25
13. Effect of the Offer on the Market for the Shares; Exchange Listing and Exchange
Act Registration................................................................ 26
14. Conditions of the Offer......................................................... 26
15. Certain Legal Matters; Regulatory Approvals..................................... 28
16. Fees and Expenses............................................................... 32
17. Miscellaneous................................................................... 33
SCHEDULE I: INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND
THE PURCHASER............................................................. I-1
SCHEDULE II: CERTAIN INFORMATION REQUIRED TO BE GIVEN TO SHAREHOLDERS OF THE COMPANY
PURSUANT TO NEW YORK LAW................................................. II-1
</TABLE>
i
<PAGE> 3
To the Holders of Common Stock of
THE RAYMOND CORPORATION:
INTRODUCTION
Lift Acquisition Company, Inc., a New York corporation (the "Purchaser"),
and an indirect wholly-owned subsidiary of BT Industries AB, a corporation
organized under the laws of Sweden ("Parent"), hereby offers to purchase all
outstanding shares of common stock, par value $1.50 per share (each a "Share"
and, collectively, the "Shares"), of The Raymond Corporation, a New York
corporation (the "Company"), including the associated Common Stock Purchase
Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of March
1, 1997, between the Company and American Stock Transfer & Trust Company, as
Rights Agent (the "Rights Agent"), as amended (the "Rights Agreement"), at a
price of $33.00 per Share, net to the seller in cash, without interest thereon
(the "Offer Price"), upon the terms and subject to the conditions set forth in
this Offer to Purchase and in the related Letter of Transmittal (which, as may
be amended and supplemented from time to time, together constitute the "Offer").
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to the
Offer. The Purchaser will pay all charges and expenses of Salomon Brothers Inc,
as Dealer Manager (the "Dealer Manager"), ChaseMellon Shareholder Services,
L.L.C., as Depositary (the "Depositary"), and Mackenzie Partners, Inc., as
Information Agent (the "Information Agent"), in each case incurred in connection
with the Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "RAYMOND BOARD") HAS UNANIMOUSLY
APPROVED EACH OF THE OFFER AND THE MERGER, UNANIMOUSLY DETERMINED THAT EACH OF
THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF, THE
SHAREHOLDERS OF THE COMPANY AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS ACCEPT
THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
THE COMPANY HAS ADVISED PARENT THAT LEHMAN BROTHERS INC. ("LEHMAN
BROTHERS"), THE FINANCIAL ADVISOR TO THE COMPANY, HAS DELIVERED TO THE RAYMOND
BOARD ITS WRITTEN OPINION DATED JUNE 16, 1997 THAT, AS OF SUCH DATE AND BASED
UPON ITS REVIEW AND ANALYSIS AND SUBJECT TO THE LIMITATIONS SET FORTH THEREIN,
THE OFFER PRICE TO BE RECEIVED BY THE SHAREHOLDERS OF THE COMPANY PURSUANT TO
THE OFFER AND THE MERGER, IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO SUCH
SHAREHOLDERS. A COPY OF THE OPINION OF LEHMAN BROTHERS, WHICH SETS FORTH THE
ASSUMPTIONS MADE, FACTORS CONSIDERED AND SCOPE OF REVIEW UNDERTAKEN BY LEHMAN
BROTHERS, IS CONTAINED IN THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON
SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"), WHICH IS BEING MAILED TO SHAREHOLDERS
CONCURRENTLY HEREWITH. SHAREHOLDERS ARE URGED TO READ THE FULL TEXT OF THAT
OPINION.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of June 16, 1997 (the "Merger Agreement"), by and among Parent, the Purchaser
and the Company. The Merger Agreement provides that, among other things, as soon
as practicable after the purchase of Shares pursuant to the Offer and the
satisfaction of the other conditions set forth in the Merger Agreement and in
accordance with the relevant provisions of the New York Business Corporation Law
("New York Law"), the Purchaser will be merged with and into the Company (the
"Merger"). Following consummation of the Merger, the Company will continue as
the surviving corporation (the "Surviving Corporation") and will be an indirect
wholly-owned subsidiary of Parent. At the effective time of the Merger (the
"Effective Time"), each Share issued and outstanding immediately prior to the
Effective Time (other than Shares held by any subsidiary of the Company or in
the treasury of the Company, or by Parent, the Purchaser or any other subsidiary
of Parent, which Shares will be cancelled, and other than Shares, if any, held
by shareholders who perfect their appraisal rights under New York Law) will be
converted into the right to receive the Offer Price, without interest (the
"Merger Consideration"). The Merger Agreement is more fully described in Section
11.
1
<PAGE> 4
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including, if required by law, the approval and adoption of
the Merger Agreement by the requisite vote of the shareholders of the Company.
See Section 11. Under New York Law, except as otherwise described below, the
affirmative vote of the holders of at least 66 2/3% of the outstanding Shares is
required to approve and adopt the Merger Agreement and the Merger. Consequently,
if the Purchaser acquires at least 66 2/3% of the then outstanding Shares, the
Purchaser will have sufficient voting power to approve and adopt the Merger
Agreement and the Merger even if no other shareholder votes in favor of the
Merger.
Under New York Law, if the Purchaser acquires, pursuant to the Offer or
otherwise, at least 90% of the then outstanding Shares, the Purchaser will be
able to approve and adopt the Merger Agreement and the Merger without a vote of
the Company's shareholders. If, however, the Purchaser does not acquire at least
90% of the then outstanding Shares pursuant to the Offer or otherwise and a vote
of the Company's shareholders is required under New York Law, a longer period of
time will be required to effect the Merger. See Section 11.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF SHARES WHICH, TOGETHER WITH SHARES OWNED BY PARENT OR THE PURCHASER
(OR ANY AFFILIATE OF PARENT OR THE PURCHASER) CONSTITUTES AT LEAST 66 2/3% OF
THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION") AND
THE EXPIRATION OR TERMINATION OF ANY APPLICABLE WAITING PERIOD (AND ANY
EXTENSION THEREOF) UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF
1976, AS AMENDED (THE "HSR ACT"), AND THE RULES AND REGULATIONS THEREUNDER (THE
"HSR CONDITION"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS. SEE
SECTION 14.
The Company has informed the Purchaser that, as of June 10, 1997, there
were 10,738,604 Shares issued and outstanding (excluding Shares held in the
Company's treasury), 148,586 Shares reserved for issuance upon the exercise of
outstanding options granted under the Company's stock option plans and 20,758
Shares held in the Company's treasury. As a result, as of such date, the Minimum
Condition would be satisfied if the Purchaser acquired 7,258,127 Shares in the
Offer. The Company has been advised, and has informed Parent, that each of its
directors and executive officers intends to tender pursuant to the Offer all
Shares owned of record or beneficially by him or her, except to the extent such
tender would violate applicable securities laws. See Section 11.
The Company has informed the Purchaser that, effective June 16, 1997, the
Rights Agreement was amended (the "Amendment") pursuant to the Merger Agreement
to provide that (i) so long as the Merger Agreement has not been terminated
pursuant to its terms or at any time after the acquisition of Shares pursuant to
the Offer, neither Parent nor any of its affiliates will become an Acquiring
Person nor will a Distribution Date (as such terms are defined in the Rights
Agreement) be deemed to occur, in each case, solely as a result of the
execution, delivery and performance of the Merger Agreement or the announcement,
making or consummation of the Offer, the acquisition of the Shares pursuant to
the Offer or the Merger, the consummation of the Merger or any other
transactions contemplated by the Merger Agreement and (ii) the Rights will
expire immediately after the acquisition of Shares pursuant to the Offer.
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.
THE TENDER OFFER
1. TERMS OF THE OFFER. Upon the terms and subject to the conditions of the
Offer (including, if the Offer is extended or amended, the terms and conditions
of any extension or amendment), the Purchaser will accept for payment and pay
for all Shares validly tendered prior to the Expiration Date (as hereinafter
defined) and not withdrawn in accordance with Section 4. The term "Expiration
Date" means 12:00 Midnight, New York City time, on Friday, July 18, 1997, unless
and until the Purchaser, in its sole
2
<PAGE> 5
discretion (but subject to the terms 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 the Purchaser, shall expire.
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Condition and the HSR Condition. The Offer is also subject to certain
other conditions set forth in Section 14 below. If these or any of the other
conditions referred to in Section 14 are not satisfied or any of the events
specified in Section 14 have occurred or are determined by the Purchaser to have
occurred prior to the Expiration Date, the Purchaser reserves the right (but is
not obligated) to (i) decline to purchase any of the Shares tendered in the
Offer and terminate the Offer, and return all tendered Shares to the tendering
shareholders, (ii) waive or amend any or all conditions to the Offer, to the
extent permitted by applicable law and the provisions of the Merger Agreement,
and, subject to complying with applicable rules and regulations of the
Securities and Exchange Commission (the "Commission"), purchase all Shares
validly tendered or (iii) subject to the limitations described below, extend the
Offer and, subject to the right of shareholders to withdraw Shares until the
Expiration Date, retain the Shares which have been tendered during the period or
periods for which the Offer is extended; provided, however, that the Minimum
Condition may be waived by the Purchaser only with the consent of the Company.
Subject to the applicable rules and regulations of the Commission and to
applicable law, the Purchaser expressly reserves the right, in its sole
discretion (but subject to the terms and conditions of the Merger Agreement), at
any time and from time to time, to extend for any reason the period of time
during which the Offer is open, including upon the occurrence of any of the
events specified in Section 14, and thereby delay acceptance for payment of, or
payment for, any Shares, by giving oral or written notice of such extension to
the Depositary. There can be no assurance that the Purchaser will exercise its
right to extend the Offer. During any such extension, all Shares previously
tendered and not withdrawn will remain subject to the Offer, subject to the
rights of a tendering shareholder to withdraw its Shares. See Section 4.
Subject to the applicable rules and regulations of the Commission, the
Purchaser also expressly reserves the right, in its sole discretion (but subject
to the terms and conditions of the Merger Agreement), at any time and from time
to time, (i) to delay acceptance for payment of, or, regardless of whether such
Shares were theretofore accepted for payment, payment for, any Shares pending
receipt of any regulatory approval specified in Section 15 or in order to comply
in whole or in part with any other applicable law, (ii) to terminate the Offer
and not accept for payment (or pay for) any Shares if any of the conditions
referred to in Section 14 are not satisfied or any of the events specified in
Section 14 have occurred and (iii) to waive any condition or otherwise amend the
Offer in any respect by giving oral or written notice of such delay,
termination, waiver or amendment to the Depositary and by making a public
announcement thereof, provided that the Minimum Condition may only be waived
with the Company's consent.
Parent and the Purchaser expressly reserve the right to modify the terms of
the Offer, including, without limitation, to extend the Offer beyond any
scheduled expiration date; provided, however, that without the prior written
consent of the Company, the Purchaser will not (i) reduce the number of Shares
sought in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the
conditions of the Offer referred to in Section 14, (iv) change the form of
consideration payable in the Offer or (v) make any other change in the terms of
the Offer which is materially adverse to any holder of Shares.
The Purchaser acknowledges that (i) Rule 14e-1(c) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), requires the Purchaser to
pay the consideration offered or return the Shares tendered promptly after the
termination or withdrawal of the Offer and (ii) the Purchaser may not delay
acceptance for payment of, or payment for (except as provided in clause (i) of
the first sentence of the second preceding paragraph), any Shares upon the
occurrence of any of the conditions specified in Section 14 without extending
the period of time during which the Offer is open.
Any such extension, delay, termination, waiver or amendment will be
followed as promptly as practicable by public announcement thereof, with such
announcement in the case of an extension to be
3
<PAGE> 6
made no later than 9:00 a.m., New York City time, on the next business day after
the previously scheduled expiration date. Subject to applicable law (including
Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act, which require that
material changes be promptly disseminated to shareholders in a manner reasonably
designed to inform them of such changes) and without limiting the manner in
which the Purchaser may choose to make any public announcement, the Purchaser
shall have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a press release to the Dow Jones News
Service.
If the 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, the Purchaser will extend the Offer to the extent required by Rules
14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period during
which an offer must remain open following material changes in the terms of the
offer or information concerning the offer, other than a change in price or a
change in the percentage of securities sought, will depend upon the facts and
circumstances then existing, including the relative materiality of the changed
terms or information. With respect to a change in price or a change in the
percentage of securities sought, a minimum period of ten business days is
generally required to allow for adequate dissemination to shareholders and
investor response.
The Company has provided the Purchaser with the Company's shareholder list
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares whose names
appear on the Company's shareholder list and will be furnished, for subsequent
transmittal to beneficial owners of Shares, to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the shareholder list or, if applicable, who are listed as
participants in a clearing agency's security position listing.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. Upon the terms and
subject to the conditions of the Offer (including, if the Offer is extended or
amended, the terms and conditions of any such extension or amendment), the
Purchaser will purchase by accepting for payment, and will pay for, all Shares
validly tendered on or prior to the Expiration Date (and not properly withdrawn
in accordance with Section 4) promptly after the later to occur of (i) the
Expiration Date and (ii) the satisfaction or waiver of the conditions set forth
in Section 14. Subject to applicable rules of the Commission and the terms of
the Merger Agreement, the Purchaser expressly reserves the right, in its
discretion, to delay acceptance for payment of, or payment for, Shares pending
receipt of any regulatory approvals specified in Section 15.
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 an Agent's Message (as defined below) in
connection with a book-entry transfer 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 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 the Letter of Transmittal and that the
Purchaser may enforce such agreement against such participant.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment (and thereby purchased) Shares validly tendered and not properly
withdrawn if, as and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such Shares. Payment
4
<PAGE> 7
for Shares accepted pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering shareholders for the purpose of receiving payments from the Purchaser
and transmitting payments to such tendering shareholders whose Shares have been
accepted for payment. Under no circumstances will interest on the purchase price
for Shares be paid by the Purchaser, regardless of any delay in making such
payment. Upon the deposit of funds with the Depositary for the purpose of making
payments to tendering shareholders, the Purchaser's obligation to make such
payment shall be satisfied, and tendering shareholders 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 Shares will be returned, without expense to the tendering
shareholder (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, the Purchaser increases the consideration
to be paid per Share pursuant to the Offer, the Purchaser will pay such
increased consideration for all such Shares purchased pursuant to the Offer,
whether or not such Shares were tendered prior to such increase in
consideration.
3. PROCEDURES FOR TENDERING SHARES.
VALID TENDER OF SHARES. In order for Shares to be validly tendered
pursuant to the Offer, the Letter of Transmittal (or 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 (i) the Share Certificates evidencing tendered Shares
must be received by the Depositary at such address or 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 either case prior
to the Expiration Date, or (ii) the tendering shareholder must comply with the
guaranteed delivery procedures described below.
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 SHAREHOLDER, 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.
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 a 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 tendering shareholder must comply with the guaranteed
delivery procedures described below. 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.
SIGNATURE GUARANTEE. Signatures on all Letters of Transmittal must be
guaranteed by a financial institution (including most banks, savings and loan
associations and brokerage houses) which is a
5
<PAGE> 8
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (each an "Eligible Institution"), unless the Shares tendered
thereby are tendered (i) by a registered holder of Shares 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 not accepted for payment or not tendered 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 shareholder desires to tender Shares pursuant to
the Offer and such shareholder'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 the 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 facsimile thereof)
with any required signature guarantee (or, in the case of a book-entry
transfer, an Agent's Message) and any other documents required by such
Letter of Transmittal, are received by the Depositary within three
NASDAQ/National Market System ("NASDAQ/NMS") trading days after the date of
execution of the Notice of Guaranteed Delivery.
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 facsimile thereof (or, in
the case of a book-entry transfer, an Agent's Message) and (iii) any other
documents required by the Letter of Transmittal.
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 the Purchaser, in its sole discretion, whose determination will be
final and binding on all parties. The 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 the Purchaser's counsel, be unlawful. The Purchaser also reserves
the absolute right, in its sole discretion, to waive any of the conditions of
the Offer (subject to the terms of the Merger Agreement) or any defect or
irregularity in any tender with respect to Shares of any particular shareholder,
whether or not similar defects or irregularities are waived in the case of other
shareholders. No tender of Shares will be deemed to have been validly made until
all defects and irregularities have been cured or waived.
The 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.
6
<PAGE> 9
APPOINTMENT AS PROXY. By executing a Letter of Transmittal as set forth
above, a tendering shareholder irrevocably appoints designees of the Purchaser
as such shareholder's proxies, each with full power of substitution, to the full
extent of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by the 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 June 16, 1997). 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, the
Purchaser accepts such Shares for payment pursuant to the Offer. Upon such
acceptance for payment, all prior proxies given by such shareholder with respect
to such Shares and other securities will, without further action, be revoked,
and no subsequent proxies may be given. The designees of the 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
shareholder as they in their sole discretion may deem proper at any annual,
special, adjourned or postponed meeting of the Company's shareholders, by
written consent or otherwise, and the Purchaser reserves the right to require
that, in order for Shares or other securities to be deemed validly tendered,
immediately upon the Purchaser's acceptance for payment of such Shares the
Purchaser must be able to exercise full voting rights with respect to such
Shares and other securities.
BACKUP WITHHOLDING. TO PREVENT UNITED STATES FEDERAL BACKUP WITHHOLDING
TAX WITH RESPECT TO PAYMENT OF THE PURCHASE PRICE OF SHARES PURCHASED PURSUANT
TO THE OFFER, EACH SHAREHOLDER MUST PROVIDE THE DEPOSITARY WITH SUCH
SHAREHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER WHICH, IN THE CASE OF AN
INDIVIDUAL SHAREHOLDER, IS SUCH SHAREHOLDER'S SOCIAL SECURITY NUMBER, AND
CERTIFY THAT SUCH SHAREHOLDER IS NOT SUBJECT TO BACKUP WITHHOLDING TAX BY
COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED AS PART OF THE LETTER OF
TRANSMITTAL. IF THE DEPOSITARY IS NOT PROVIDED WITH THE CORRECT TAXPAYER
IDENTIFICATION NUMBER OR AN ADEQUATE BASIS FOR AN EXEMPTION, THE SHAREHOLDER MAY
BE SUBJECT TO A PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE. IN ADDITION, IF
BACKUP WITHHOLDING APPLIES WITH RESPECT TO A SHAREHOLDER, THE DEPOSITARY WILL BE
REQUIRED TO WITHHOLD 31% OF ANY PAYMENTS MADE TO SUCH SHAREHOLDER. SEE SECTION 5
OF THIS OFFER TO PURCHASE AND INSTRUCTION 9 OF THE LETTER OF TRANSMITTAL.
The Purchaser's acceptance for payment of Shares tendered pursuant to the
Offer will constitute a binding agreement between the tendering shareholder and
the Purchaser upon the terms and subject to the conditions of the Offer.
4. WITHDRAWAL RIGHTS. Tenders of Shares made pursuant to the Offer are
irrevocable except that such Shares may be withdrawn 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 August 18, 1997,
or at such later time as may apply if the Offer is extended.
If the 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 the Purchaser's rights under
the Offer, the Depositary may, nevertheless, on behalf of the Purchaser, retain
tendered Shares, and such Shares may not be withdrawn except to the extent that
tendering shareholders are entitled to withdrawal rights as described in this
Section 4. Any such delay will be 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 physical
release of such Share Certificates, the serial numbers shown on such Share
Certificates must be submitted to the Depositary and the signature(s) on the
notice of withdrawal must be guaranteed by an Eligible Institution, 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,
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<PAGE> 10
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.
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. None of Parent, the
Purchaser, the Depositary, the Dealer Manager 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 to not 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 UNITED STATES FEDERAL INCOME TAX CONSEQUENCES. The following is
a general discussion of certain U.S. federal income tax consequences of the
receipt of cash by a holder of Shares pursuant to the Offer or the Merger.
Except as specifically noted, this discussion applies only to a U.S. Holder (as
defined herein). This summary does not address any tax consequences of the
Merger to U.S. Holders who exercise dissenters' rights, if any. It applies only
to U.S. Holders that hold Shares as capital assets and does not address aspects
of U.S. federal income tax law that may be applicable to shareholders that are
subject to special tax rules, including, without limitation, insurance
companies, tax-exempt organizations, financial institutions, dealers in
securities or currencies, persons who acquired Shares pursuant to an exercise of
employee stock options or rights or otherwise as compensation, persons who hold
Shares as a position in a "straddle" or as part of a "hedging" or "conversion"
transaction and persons that have a "functional currency" other than the U.S.
dollar. Also, this summary does not address state, local or foreign tax
consequences of the Offer or the Merger. Consequently, each holder should
consult such holder's own tax advisor as to the specific tax consequences of the
Offer or the Merger to such holder.
For purposes of this discussion, a "U.S. Holder" means a holder of Shares
that is (i) a citizen or resident of the United States, (ii) a partnership or
corporation created in or under the laws of the United States or any political
subdivision thereof or therein, (iii) an estate the income of which is subject
to United States federal income taxation regardless of its source, or (iv) a
trust if (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States fiduciaries have the authority to control all substantial decisions of
the trust. A Non-U.S. Holder is a holder of Shares that is not a U.S. Holder.
The receipt of cash for Shares pursuant to the Offer or the Merger by a
U.S. Holder will be a taxable transaction for U.S. federal income tax purposes
and may also be a taxable transaction under applicable state, local or foreign
tax laws. In general, a U.S. Holder will recognize gain or loss for U.S. federal
income tax purposes equal to the difference, if any, between the amount of cash
received by the shareholders pursuant to the Offer or the Merger and such U.S.
Holder's adjusted tax basis in such Shares. Such gain or loss will be capital
gain or loss and will be long-term capital gain or loss if such U.S. Holder has
held the Shares for more than one year at the time of the sale. There are
limitations on the deductibility of capital losses.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX. United States
information reporting will apply to proceeds from the sale of Shares paid by a
United States payor to a U.S. Holder (other than an "exempt recipient,"
including a corporation, a payee that is a Non-U.S. Holder that provides an
appropriate certification and certain other persons). As noted in Section 3, a
United States payor will be required to withhold 31% of any such payment within
the United States to a holder (other than an "exempt recipient") if such holder
fails to furnish its correct taxpayer identification number and tocertify under
penalties of perjury that such holder is not subject to backup withholding tax
by submitting a completed Substitute Form W-9 to the Depositary or otherwise
fails to comply with such backup withholding requirements. Accordingly, each
shareholder should complete, sign and submit the Substitute Form W-9 included as
part of the Letter of Transmittal in order to avoid the imposition of such
backup withholding tax.
8
<PAGE> 11
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND IS BASED UPON LAWS, REGULATIONS, RULINGS AND
DECISIONS NOW IN EFFECT, ALL OF WHICH ARE SUBJECT TO CHANGE (POSSIBLY
RETROACTIVELY). SHAREHOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE SPECIFIC TAX CONSEQUENCES OF THE OFFER AND THE MERGER TO THEM,
INCLUDING THE APPLICATION AND EFFECT OF THE ALTERNATIVE MINIMUM TAX, AND STATE,
LOCAL AND FOREIGN TAX LAWS.
6. PRICE RANGE OF SHARES; DIVIDENDS. The Shares are traded on the
NASDAQ/NMS under the symbol "RAYM". The following table sets forth, for the
periods indicated, the high and low sales prices per Share on the NASDAQ/NMS as
reported by the Dow Jones News Service, as adjusted to reflect a 5% stock
dividend that was paid to holders of record of the Shares as of March 29, 1996
(the "1996 Stock Dividend"), and the amount of cash dividends paid on the
Shares, as reported in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996. The sales prices indicated in the table below
represent inter-dealer prices as reported by NASDAQ/NMS without retail markups,
markdowns or commissions and do not necessarily represent actual transactions.
<TABLE>
<CAPTION>
HIGH LOW DIVIDENDS
------- ------- ---------
<S> <C> <C> <C>
1995:
First Quarter......................................... $ 17.46 $ 14.28 --
Second Quarter........................................ 21.19 17.62 --
Third Quarter......................................... 20.23 17.38 --
Fourth Quarter........................................ 22.38 18.39 --
1996:
First Quarter......................................... 22.63 17.25 --
Second Quarter........................................ 19.75 16.00 $0.0225
Third Quarter......................................... 20.63 16.75 0.0225
Fourth Quarter........................................ 19.25 16.00 0.0225
1997:
First Quarter......................................... 29.25 17.00 0.0625
Second Quarter (through June 19, 1997)................ 35.25 27.25 --
</TABLE>
- ---------------
On June 9, 1997, the Raymond Board declared a quarterly cash dividend of
$0.0625 per Share, payable on June 30, 1997 to shareholders of record on June
20, 1997. Holders of Shares who tender their Shares pursuant to the Offer will
receive such dividend. The Company has stated that it expects to continue paying
quarterly cash dividends at this level, but that its ability to do so will
depend on a variety of factors including the Company's earnings, cash flows and
financial resources.
On June 13, 1997, the last full trading day prior to the public
announcement of the Offer and Merger, the closing sale price of the Shares on
the NASDAQ/NMS was $35.25 per Share. On June 19, 1997, the last full trading day
prior to the date of this Offer to Purchase, the closing sale price of the
Shares on the NASDAQ/NMS was $32.63 per Share. SHAREHOLDERS ARE URGED TO OBTAIN
A CURRENT MARKET QUOTATION FOR THE SHARES.
7. CERTAIN INFORMATION CONCERNING THE COMPANY. The information concerning
the Company contained in this Offer to Purchase, including financial
information, has been taken from or based upon publicly available documents and
records on file with the Commission and other public sources. Neither Parent nor
the Purchaser assumes any responsibility for the accuracy or completeness of the
information concerning the Company contained in such documents and records or
for any failure by the Company to disclose events which may have occurred or may
affect the significance or accuracy of any such information but which are
unknown to Parent or the Purchaser.
The Company is engaged in the design, manufacture, distribution and
servicing of materials handling equipment. Its revenues are realized primarily
from the distribution of the Raymond(R) and Dockstocker(R) product lines through
the Company's dealer network which is principally located in North America. In
9
<PAGE> 12
addition, the Company has expanded in both the domestic and international market
through distribution and original equipment manufacture supply agreements. The
Company had approximately 1,700 employees as of December 31, 1996.
The Company is a New York corporation. The address of its principal
executive offices is 20 South Canal Street, Greene, New York. The telephone
number of the Company at such offices is (607) 656-2311.
FINANCIAL INFORMATION. Set forth below is certain selected consolidated
financial information relating to the Company and its subsidiaries which has
been excerpted or derived from the financial statements contained in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996
and its Quarterly Report on Form 10-Q for the quarter ended March 31, 1997. More
comprehensive financial information is included in these reports and other
documents filed by the Company with the Commission. The financial information
that follows is qualified in its entirety by reference to these reports and
other documents, including the financial statements and related notes contained
therein. These reports and other documents may be inspected at, and copies may
be obtained from, the same places and in the manner set forth under
"-- Available Information".
<TABLE>
<CAPTION>
YEAR ENDED THREE MONTHS
DECEMBER 31, ENDED MARCH 31,
------------------------------------ -------------------
1994 1995 1996(1) 1996 1997(1)
---------- ---------- ---------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Net sales, leasing and rental
revenues......................... $ 226,727 $ 282,570 $ 305,490 $ 68,987 $ 95,886
Income before minority interest and
equity in earnings of
unconsolidated investees......... 9,525 12,727 14,127 3,120 4,152
Minority interest in earnings of
subsidiaries..................... -- -- 176 -- 165
Net equity in earnings of
unconsolidated investees......... 202 347 1,068 262 105
Net income......................... 9,727 13,074 15,019 3,382 4,092
Per common share(2)................
Net income (primary)............. 1.39 1.82 2.00 0.45 0.41
Cash dividends................... -- -- .075 -- .0625
FINANCIAL POSITION (AT PERIOD END)
Total assets....................... 204,376 249,927 322,938 254,535 320,779
Total debt......................... 81,653 103,656 127,597 103,685 86,974
Shareholders' equity............... 81,000 101,334 128,672 104,890 169,031
</TABLE>
- ---------------
(1) Beginning in the fourth quarter of 1996, the operating results of G.N.
Johnston Equipment Co. Ltd. ("Johnston") and Associated Material Handling
Industries, Inc. ("Associated") have been consolidated with those of the
Company. Prior to the fourth quarter of 1996, the Company accounted for its
investments in Johnston and Associated using the equity method.
(2) Restated for the 1996 Stock Dividend.
During the course of discussions between Parent and the Company that led to
the execution of the Merger Agreement (see "Background of the Offer; Contacts
with the Company"), the Company provided Parent with certain non-public business
and financial information about the Company. The Company does not as a matter of
course make public any forecasts as to future performance or earnings, and the
information set forth below is included in this Offer to Purchase only because
such information was provided to Parent prior to the commencement of the Offer.
The forecasted financial information set forth below was not prepared with a
view to public disclosure or compliance with published guidelines of the
Commission or the guidelines established by the American Institute of Certified
Public Accountants regarding forecasts. None of Parent, the Purchaser or the
Company, nor any of their respective financial
10
<PAGE> 13
advisors, assumes any responsibility for the accuracy of this information. This
information is based upon a variety of assumptions relating to the business of
the Company which may not be realized and is subject to significant
uncertainties and contingencies, all of which are difficult to predict and many
of which are beyond the control of the Company. There can be no assurance that
the forecasted results will be realized, and actual results may vary materially
and adversely from those shown.
The Company provided Parent with the Company's forecasted budget for 1997,
which forecasted for 1997 net sales, leasing and rental revenues of $403.0
million and net income of $20.9 million. In addition, Parent was also provided
with financial forecasts for 1998 and 1999, which projected for 1998 and 1999,
net sales, leasing and rental revenues of $449.3 million and $508.2 million,
respectively, and net income of $26.9 million and $33.1 million, respectively.
AVAILABLE 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 and other reports distributed to the
Company's shareholders 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 in 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, Suite 1400, Chicago, Illinois 60661. Copies of this material may
also be obtained by mail, upon payment of the Commission's customary fees, from
the Commission's principal office at 450 Fifth Street, N.W., Washington, D.C.
20549. Such material can also be obtained at the office of The National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006-1506.
8. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT.
THE PURCHASER. The Purchaser, a newly incorporated New York corporation,
has not conducted any business other than in connection with the Offer and the
Merger Agreement. All of the issued and outstanding shares of capital stock of
the Purchaser are owned by BT Prime-Mover Inc., an Iowa corporation and
wholly-owned subsidiary of Parent. The principal offices of the Purchaser are
located at Svarvargatan 8, SE-595 81, Mjolby, Sweden. The telephone number of
the Purchaser at such office is 46-142-86-000.
PARENT. Parent, which was formed in 1946 in the Kingdom of Sweden, is a
major manufacturer of warehouse trucks and hand trucks and is one of the leading
manufacturers of such products in terms of unit sales in Scandinavia and the
Benelux region. Warehouse trucks, designed principally for indoor use, are
electrically operated and hand trucks are manually operated. A full range of
equipment in both categories is produced by Parent and products are manufactured
by Parent to the customer's specific needs, allowing Parent to work closely with
customers on a long term basis and provide extensive after-sales service and
support. After-sales services and rental represent approximately half of
Parent's invoiced sales. Parent also supplies and services, but does not
manufacture, counterbalance trucks in order to provide its customers with a
fuller range of materials handling trucks.
Operations comprise the development, manufacture and marketing of a wide
range of warehouse trucks. The product range also includes services such as
advice, financing, service, maintenance and driver training. Parent is one of
Europe's leading manufacturers in its field.
As of December 31, 1996, Parent employed approximately 3,600 people, nearly
60% of whom are outside Sweden. Approximately 80% of Parent's sales, which in
1996 amounted to approximately SEK 4.0 billion ($514.3 million), are outside
Sweden.
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<PAGE> 14
Since November 1995, Parent's ordinary shares have been listed on the
Stockholm Stock Exchange. Parent's principal offices are located at Svarvargatan
8, Mjolby, Sweden. The telephone number of Parent at such office is
46-142-86-000.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history of each of the directors and the
executive officers of Parent and the Purchaser are set forth in Schedule I
hereto.
Set forth below are certain selected consolidated financial data with
respect to Parent and its consolidated subsidiaries for Parent's last three
fiscal years and for the quarters ended March 31, 1996 and 1997. The selected
consolidated financial information has been prepared in Swedish kronor ("SEK")
in accordance with generally accepted accounting principles in Sweden ("Swedish
GAAP"). The data set forth below has been restated to give effect to changes in
Swedish GAAP regarding accounting for leases which became effective as of
January 1, 1997. As a result, such data may differ from Parent's historical
reported financial information. Swedish GAAP differs in certain significant
respects from generally accepted accounting principles in the United States ("US
GAAP"). A summary of the significant differences between US GAAP and Swedish
GAAP is set forth below. Parent, however, believes that the differences are not
material to a decision by a holder of Shares whether to sell, tender or hold any
Shares because any such differences would not affect the ability of Parent to
obtain sufficient funds to pay for Shares to be acquired pursuant to the Offer
and to repay any funds which have been borrowed for such purpose. The amounts in
the table set forth below are in Swedish kronor unless otherwise indicated. The
U.S. dollar amounts in the table set forth for the year ended December 31, 1996
were determined by translating the corresponding Swedish kronor amounts into
U.S. dollars using the noon buying rate in New York City for cable transfers in
Swedish kronor as certified for customs purposes by the Federal Reserve Bank of
New York (the "Noon Buying Rate") on June 13, 1997, which was SEK
7.7754 = $1.00. No representation is made that Swedish kronor have been, could
have been or could be, converted into U.S. dollars at that or any other rate.
(SEK IN MILLIONS EXCEPT WHERE OTHERWISE INDICATED
IN U.S. DOLLARS ("$") IN MILLIONS AND EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER THREE MONTHS
31, ENDED MARCH 31,
--------------------- ----------------------
1994 1995 1996 1996(1) 1996 1997 1997(1)
----- ----- ----- ------ ----- ----- ------
(SEK) (SEK) (SEK) ($) (SEK) (SEK) ($)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT
Net sales............................. 3,354 3,918 3,999 514.31 1,022 1,022 131.44
Operating income...................... 227 321 293 37.68 81 54 6.94
Income after net financial items...... 202 311 311 40 83 60 7.72
Net income............................ 142 213 202 25.8 54 39 5.02
Earnings per share.................... 7.10 10.65 10.10 1.3 2.70 1.95 .25
BALANCE SHEET (AT PERIOD END)
Total assets.......................... 2,107 2,086 2,223 285.90 2,065 2,280 293.23
Shareholders' equity.................. 512 696 850 109.32 745 912 117.29
Allocations and liabilities........... 1,595 1,390 1,373 176.58 1,320 1,368 175.94
</TABLE>
- ---------------
(1) Translated, solely for the convenience of the reader, at an exchange rate of
SEK 7.7754 = U.S.$1.00, the Noon Buying Rate on June 13, 1997.
SUMMARY OF SIGNIFICANT DIFFERENCES BETWEEN SWEDISH GAAP AND US GAAP. The
following is a summary of certain significant differences in Swedish GAAP and US
GAAP with respect to Parent's consolidated financial statements. The summary is
not to be regarded as a complete list of all of the differences between Swedish
GAAP and US GAAP and does not include disclosure differences between Swedish
GAAP and US GAAP.
12
<PAGE> 15
Accounting for Pensions. There are differences between Swedish GAAP and US
GAAP concerning the actuarial assumptions in providing for future pension
liabilities.
Deferred Taxes. Under Swedish GAAP, deferred taxes are calculated on
untaxed reserves using the liability method. Deferred tax assets on certain
temporary differences are normally not recorded. Under US GAAP, a reserve for
deferred taxes under the liability method is required for all temporary
differences. Deferred tax assets may be reported only if it is probable that the
tax benefit will be utilized.
Changes in Accounting Principles. According to Swedish GAAP, the
accumulated effect of changes in accounting principles is reported directly
against equity. According to US GAAP, the accumulated effect of changes in
accounting principles is reported in the income statement.
Foreign Currency Translation; Financial Statements of Foreign
Subsidiaries. Swedish GAAP requires that all components of equity to be
classified either as restricted equity (share capital and restricted reserves)
or unrestricted equity. Cumulative currency translation adjustments are included
in restricted reserves or as retained earnings. Under US GAAP, cumulative
currency translation adjustments are required to be stated as a separate item
under shareholders' equity.
Leasing. Prior to January 1, 1997, under Swedish GAAP, almost all leases
are treated as operating leases. According to US GAAP, leases are treated as
either operating or financial leases. As of January 1997, the treatment of
leases under Swedish GAAP is substantially similar to that under International
Accounting Standard No. 17.
Goodwill. Acquired goodwill is amortized over ten years or, in the event
of long-term strategic acquisitions, over a maximum of twenty years according to
Swedish GAAP. Under US GAAP, acquired goodwill is amortized over a maximum of
forty years.
9. SOURCE AND AMOUNT OF FUNDS. The Offer is not conditioned upon any
financing arrangements. The amount of funds required by the Purchaser to
purchase all of the outstanding Shares pursuant to the Offer and the Merger and
to pay related fees and expenses is expected to be approximately $375,000,000.
The Purchaser will obtain all of such funds from Parent. Parent intends to
obtain such funds from a credit facility dated June 13, 1997 (the "Acquisition
Facility") with Swedbank (Sparbanken Sverige AB (publ)) (the "Bank").
Under the Acquisition Facility, Parent may borrow up to $400,000,000 from
the Bank. All loans under the Acquisition Facility must be repaid by June 16,
1998. The annual rate of interest on loans made under the Acquisition Facility
is 0.675% per annum over LIBOR (as defined therein). The making of an advance
under the Acquisition Facility is subject to customary conditions to drawing. As
security for the borrowings under the Acquisition Facility, Parent will cause
all of the capital stock of Purchaser to be pledged to the Bank, and Parent has
agreed that, immediately upon the consummation of the Offer, it will pledge all
Shares acquired in the Offer.
In addition, based on publicly available information, Parent estimates that
approximately an additional $75.0 million may be necessary to repay or purchase
existing long-term and short-term indebtedness of the Company which may be
required to be repaid or purchased by reason of the consummation of the Offer
and the Merger. The Company will request that certain of the applicable lenders
waive the provisions in the documents relating to such indebtedness that would
require repayment. Parent believes it will be able to renegotiate or refinance
such indebtedness on satisfactory terms. Parent has available an additional $80
million Credit Facility dated June 13, 1997 between Parent and the Bank (the
"Additional Facility" and, together with the Acquisition Facility, the "Bank
Facilities") if it should decide to refinance such indebtedness. Under the
Additional Facility, Parent may borrow up to $80,000,000 from the Bank. All
loans under the Additional Facility must be repaid by June 16, 1998. The annual
rate of interest on loans made under the Additional Facility is 0.675% per annum
over LIBOR (as defined therein).
The foregoing summaries of the Acquisition Facility and the Additional
Facility are qualified in their entirety by reference to the texts of the
Acquisition Facility and the Additional Facility, copies of which have been
filed as an exhibit to the Schedule 14D-1 and are incorporated herein by
reference. The
13
<PAGE> 16
Acquisition Facility and the Additional Facility may be inspected at, and copies
may be obtained from, the same places and in the manner set forth in Section 7
under "-- Available Information".
The margin regulations promulgated by the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") place restrictions on the amount of
credit that may be extended for the purposes of purchasing margin stock
(including the Shares) if such credit is secured directly or indirectly by
margin stock. The Purchaser believes that the financing of the acquisition of
the Shares will be in full compliance with the margin regulations.
Parent presently contemplates that it will conduct a global offering of
rights to purchase its ordinary shares, subject to market conditions and
available terms, the proceeds of which will be used to repay part of the Bank
Facilities. No assurance can be given that market conditions or available terms
will render it desirable to proceed with such an offering or that such an
offering will be consummated. After the expiration of the Bank Facilities in
June 1998, Parent intends to refinance any remaining debt incurred under the
Bank Facilities by obtaining medium term bank financing. While management of the
Company is confident that it will be able to obtain such replacement financing,
no assurance can be given that market conditions or available terms will allow
such financing to be consummated.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY. Since 1992, Parent
and the Company have been parties to an agreement (as discussed below) pursuant
to which Parent has the right to distribute, on an exclusive basis, certain of
the Company's products in certain territories in Europe.
In February, 1997, a group of investment partnerships, including Bedford
Falls Investors, L.P. and Metropolitan Capital Advisors, Inc., announced that it
had acquired a 7.51% interest in the Company and would seek to cause the
management of the Company to sell or merge the Company. Simultaneously, the
investor group also disclosed that it had entered into voting agreements
regarding an additional 16.76% of the Shares owned by George Raymond, Jr., a
director of the Company, members of his family and Scoggin Capital Management,
L.P. On March 3, 1997, the Company announced that it had adopted a shareholder
rights plan and retained Lehman Brothers to assist in evaluating strategic
alternatives available to the Company.
On March 7, 1997, Carl-Erik Ridderstrale, the President and Chief Executive
Officer of Parent, contacted Ross K. Colquhoun, Chairman of the Board of
Directors and Chief Executive Officer of the Company, and requested a meeting to
discuss Parent's potential interest in acquiring the Company.
On March 11, 1997, Mr. Ridderstrale, other representatives of Parent's
senior management, and a representative of White & Case, legal advisors to
Parent, met in Stockholm with Mr. Colquhoun, other representatives of the
Company's senior management, and a representative of Lehman Brothers. At this
meeting, Mr. Colquhoun and the representatives of the Company discussed recent
events regarding the ownership of the Company and certain strategic alternatives
available to the Company, including the sale of the Company.
Subsequent to this meeting, in telephone conversations between
representatives of Parent and the Company, Parent requested additional
information regarding the Company and its business.
On March 19, 1997, Parent contacted Salomon Brothers International Limited
("Salomon Brothers International") regarding representation of Parent in
connection with the possible acquisition of the Company. Subsequent to that
time, representatives of Salomon Brothers International and Salomon Brothers Inc
(collectively "Salomon Brothers") engaged in a series of discussions with Lehman
Brothers regarding the potential acquisition of the Company by Parent.
On April 4, 1997, a Confidentiality Agreement was entered into between
Parent and the Company and on April 9 and 10, 1997, Mr. Ridderstrale, other
members of senior management of Parent and representatives of Salomon Brothers
held meetings with representatives of the Company in Greene, New York and at the
Company's Canadian facility in Brantford, Ontario. At these meetings, the
Company requested that, prior to proceeding further with any discussions, Parent
deliver a letter to Lehman Brothers by April 30, 1997, indicating on a
preliminary basis its interest in acquiring the Company.
14
<PAGE> 17
On April 13, 1997, Parent formally engaged Salomon Brothers to provide
advice to Parent with respect to the potential acquisition of the Company.
In late April and early May, 1997, representatives of Salomon Brothers had
several telephone conversations with representatives of Lehman Brothers
discussing the possible interest of Parent in acquiring the Company.
On May 8, 1997, Parent delivered a letter to Lehman Brothers expressing its
interest in acquiring all of the outstanding capital stock of the Company at a
price of $30.00 per share in cash, subject to, among other things, completion of
satisfactory due diligence, and requesting an exclusive review period to
complete such due diligence. This letter was accompanied by a draft Merger
Agreement to be entered into between the parties.
During the period from May 9 to May 16, 1997, representatives of Salomon
Brothers and Lehman Brothers had several additional telephone conversations in
which they discussed Parent's interest in acquiring the Company.
Parent and Salomon Brothers received from Lehman Brothers a letter dated
May 16, 1997, indicating that the Raymond Board requested that interested
parties submit definitive proposals regarding the acquisition of the Company,
together with a final form of Merger Agreement, to it by 5:00 P.M. on June 13,
1997.
Subsequent to the receipt of this letter, representatives of Simpson
Thacher & Bartlett, the Company's legal advisors, and White & Case had telephone
conversations to discuss due diligence and on May 27, 1997, the Company's legal
advisors delivered to White & Case their comments on the draft Merger Agreement
that had been previously forwarded to the Company by Parent.
During the period from May 30 to June 3, 1997, Parent and its financial,
accounting and legal advisors conducted a due diligence review of the Company at
the offices of the Company's independent accountants in Syracuse, New York, and
at the Company's principal offices in Greene, New York. During the period
between June 6, 1997 and June 12, 1997, Parent's financial, accounting and legal
advisors held various follow-up conversations with the Company's financial,
accounting and legal advisors in which confirmation of certain due diligence
matters was sought. In addition, during this period the parties' respective
legal advisors negotiated the draft Merger Agreement.
On June 11, 1997, the Board of Directors of Parent met to approve the
making of the offer to acquire 100% of the capital stock of the Company.
On June 13, 1997, Parent delivered to Lehman Brothers a letter in which
Parent offered, subject to the conditions contained in such letter, to acquire
100% of the outstanding capital stock of the Company for $32.00 per Share in
cash. The offer was to be accomplished by a cash tender offer, to be followed by
a merger in which each Share outstanding would be converted into the right to
receive $32.00 per Share in cash. A revised draft of the Merger Agreement was
included with such letter.
On June 14, 1997, representatives of Lehman Brothers and the Company's
legal advisors contacted representatives of Salomon Brothers and Parent's legal
advisors to discuss the terms of Parent's proposed financing for Parent's offer
and the Merger and certain provisions of the Merger Agreement. In particular,
the Company requested modifications to the provisions of the Merger Agreement
limiting the Company's right to provide information to, or to entertain any
Acquisition Proposal (as defined in the Merger Agreement) made by, any third
party after the execution of the Merger Agreement and requested a reduction in
the termination fee proposed by the Parent. Lehman Brothers requested that
Parent submit any modifications it wished to make to its offer with respect to
either the terms of the Merger Agreement or price to be paid in the Offer by
9:00 A.M. on June 15, 1997.
On June 15, 1997, Parent delivered a letter to Lehman Brothers in which it
agreed to increase the offer price to $33.00 per Share and agreed to the
requested changes in the non-solicitation provisions of the Merger Agreement.
Parent did not propose any change to the termination fee. Later on June 15,
1997, representatives of Lehman Brothers telephoned representatives of Salomon
Brothers to request a
15
<PAGE> 18
reduction in the termination fee. After discussion among the parties and their
financial advisors, a fee of $12.0 million was finally agreed upon. On the
afternoon of June 15, 1997, Parent's and the Company's legal advisors met to
finalize the terms of the Merger Agreement. Parent is informed that the Raymond
Board met on the evening of June 15, 1997, and unanimously approved the Offer,
the Merger and the Merger Agreement. Later that evening, the Merger Agreement
was executed by Parent, the Purchaser and the Company.
Parent and the Company are parties to an Agreement, dated April 15, 1992,
as amended on July 3, 1995 (the "Agreement") for the purchase and sale of
certain products of the Company in certain specified countries. Parent's right
to sell these products is exclusive in the specified countries. In connection
with the Agreement, Parent has obtained licenses to use technology covered by
certain U.S. patents held by the Company. The initial term of the Agreement
extended through December 31, 1994, but the Agreement provides for automatic
renewal for successive 1-year terms. If Parent meets minimum purchase
quantities, the Company may not terminate the Agreement for convenience; if
Parent fails to meet the minimum purchase requirements, the Company may
terminate with 270 days' prior written notice. Parent has the right to terminate
the Agreement without cause with 270 days' prior written notice. The total
amount of Company products purchased by Parent and its affiliates under the
Agreement was approximately $3.4 million, $3.6 million and $3.2 million for the
fiscal years ended December 31, 1996, 1995 and 1994, respectively.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; MERGER AGREEMENT.
PURPOSE OF THE OFFER. The purpose of the Offer, the Merger and the Merger
Agreement is to enable Parent to acquire control of the Raymond Board and the
entire equity interest in the Company. Upon consummation of the Merger, the
Company will become an indirect wholly-owned subsidiary of Parent. The Offer is
being made pursuant to the Merger Agreement.
PLANS FOR THE COMPANY. The Merger Agreement provides that, promptly upon
the acceptance for payment of, and payment by the Purchaser in accordance with
the Offer for, Shares equal to at least two-thirds of the outstanding Shares
pursuant to the Offer, the Purchaser shall be entitled to designate up to such
number of directors on the Raymond Board, rounded up to the next whole number,
as will give the Purchaser, subject to compliance with Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, representation on the
Raymond Board equal to that number of directors which equals the product of the
total number of directors on the Raymond Board (giving effect to the directors
elected pursuant to this sentence) multiplied by a fraction, the numerator of
which shall be the number of Shares beneficially owned by Parent and the
Purchaser and the denominator of which shall be the number of Shares then
outstanding, and the Company and Raymond Board shall, at such time, take any and
all such action needed to cause the Purchaser's designees to be appointed to the
Raymond Board (including using its reasonable best efforts to cause directors to
resign). See "-- Merger Agreement -- The Raymond Board". The Purchaser expects
that such representation would permit the Purchaser to exert substantial
influence over the Company's conduct of its business and operations.
Under New York Law, if the Purchaser acquires, pursuant to the Offer or
otherwise, at least 90% of the outstanding Shares, the Purchaser will be able to
approve the Merger without a vote of the Company's shareholders. In such event,
Parent, the Purchaser and the Company intend to cause the Merger to become
effective as soon as reasonably practicable after such acquisition, without a
meeting of the Company's shareholders. If, however, the Purchaser does not
acquire at least 90% of the outstanding Shares, pursuant to the Offer or
otherwise, and a vote of the Company's shareholders is required under New York
Law, a significantly longer period of time would be required to effect the
Merger.
Parent and the Purchaser currently intend to cause the Company's operations
to continue to be run and managed by its existing management. Parent 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 make such changes as it deems appropriate under the circumstances then
existing. Such changes could include, among other things, changes in the
Company's corporate structure, capitalization or dividend policy.
16
<PAGE> 19
Except as otherwise discussed in this Offer to Purchase, neither Parent nor
the Purchaser have any present plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, reorganization,
liquidation, or sale or transfer of a material amount of assets of the Company
or any of its subsidiaries, or in any other material changes to the Company's
capitalization, dividend policy, corporate structure or business.
MERGER AGREEMENT. THE FOLLOWING IS A SUMMARY OF THE MATERIAL TERMS OF THE
MERGER AGREEMENT. THE SUMMARY IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
MERGER AGREEMENT WHICH IS INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH
HAS BEEN FILED WITH THE COMMISSION AS AN EXHIBIT TO THE SCHEDULE 14D-1. THE
MERGER AGREEMENT MAY BE INSPECTED AT, AND COPIES MAY BE OBTAINED FROM, THE SAME
PLACES AND IN THE MANNER SET FORTH IN SECTION 7 UNDER "-- AVAILABLE
INFORMATION".
The Offer. The Merger Agreement provides that, subject to the terms and
conditions thereof, the Purchaser will commence the Offer. Parent and the
Purchaser may waive any of the conditions described in Section 14, except that,
without the consent of the Company, Parent and the Purchaser may not waive the
Minimum Condition. Parent and the Purchaser have reserved the right to modify
the terms of the Offer, including, without limitation, to extend the Offer
beyond any scheduled expiration date; provided, however, that without the prior
written consent of the Company, the Purchaser shall not (i) reduce the number of
Shares to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify
or add to the conditions of the Offer described in Section 14, (iv) change the
form of consideration payable in the Offer or (v) make any other change in the
terms of the Offer that is materially adverse to the holders of the Shares.
Subject to the terms and conditions set forth in the Merger Agreement (including
the rights to terminate, extend or modify the Offer) and the terms and
conditions of the Offer, Parent agrees to cause the Purchaser to, and the
Purchaser agrees to use its reasonable best efforts to, consummate the Offer.
In the Merger Agreement, the Company consented to the Offer and the Merger
and represented that (a) the Raymond Board has by unanimous vote (i) determined
that each of the Offer and the Merger is fair to and in the best interests of
the holders of Shares, (ii) approved the Offer and the Merger and adopted the
Merger Agreement in accordance with the provisions of New York Law, (iii)
recommended acceptance of the Offer and approval and adoption of the Merger
Agreement by the shareholders of the Company and (iv) taken all other action
necessary to render (x) Section 912 of the New York Law and other state takeover
statutes, (y) Article SEVENTH of the Company's Restated and Amended Certificate
of Incorporation and (z) the Rights Agreement inapplicable to the Offer and the
Merger; and (b) Lehman Brothers has delivered to the Raymond Board its opinion
that the consideration to be received by the holders of Shares pursuant to the
Offer and the Merger is fair, from a financial point of view, to holders of
Shares, subject to the assumptions and qualifications contained in such opinion.
The Merger Agreement provides that the Schedule 14D-9 shall contain such
recommendations.
The Merger. The Merger Agreement provides that, subject to the terms and
conditions thereof, and in accordance with New York Law, the Purchaser shall be
merged with and into the Company as soon as practicable following the
fulfillment or waiver of the conditions set forth in the Merger Agreement which
are described below. Following the Merger, the separate corporate existence of
the Purchaser will cease and the Company will continue as the surviving
corporation (the "Surviving Corporation").
In the Merger, each Share then issued and outstanding (other than (i) any
Shares that are held by any subsidiary of the Company or in the treasury of the
Company, or which are held, directly or indirectly, by Parent, or any direct or
indirect subsidiary of Parent (including the Purchaser), all of which Shares
will be cancelled and none of which shall receive any payment with respect
thereto, and (ii) Shares, if any, held by shareholders who perfect their
appraisal rights under New York Law) will by virtue of the Merger and without
any action on the part of Parent, the Purchaser, the Company or the holder
thereof, be cancelled and converted into and represent the right to receive an
amount in cash, without interest, equal to the price paid for each Share
pursuant to the Offer.
On the date and time on which the Merger becomes effective (the "Effective
Time"), each share of common stock, par value $0.01 per share, of the Purchaser
then issued and outstanding will, by virtue of
17
<PAGE> 20
the Merger and without any action on the part of Parent, the Purchaser, the
Company or the holder thereof, be converted into one fully paid and
nonassessable share of common stock, par value $0.01 per share, of the Surviving
Corporation.
The Merger Agreement provides that the respective obligations of Parent and
the Purchaser, on the one hand, and the Company, on the other hand, to effect
the Merger are subject to the satisfaction or waiver (subject to applicable law)
at or prior to the Effective Time of each of the following conditions: (i) to
the extent required by applicable law, the Merger Agreement and the Merger shall
have been approved and adopted by holders of two-thirds of the outstanding
Shares entitled to vote in accordance with applicable law (if required by
applicable law) and the Company's Restated and Amended Certificate of
Incorporation and By-Laws; (ii) any waiting period (and any extension thereof)
under the HSR Act, applicable to the Merger shall have expired or been
terminated; (iii) the review periods, if applicable, under Section 721 of the
Defense Production of 1950, as amended ("Exon-Florio"), shall have expired or
have been terminated; (iv) no preliminary or permanent injunction or other order
shall have been issued by any court or by any governmental or regulatory agency,
body or authority which prohibits the consummation of the Offer or the Merger
and the transactions contemplated by the Merger Agreement and which is in effect
at the Effective Time; provided, however, that, in the case of a decree,
injunction or other order, each of the parties shall have used reasonable best
efforts to prevent the entry of any such injunction or other order and to appeal
as promptly as possible any decree, injunction or other order that may be
entered; (v) no statute, rule, regulation, executive order, decree or order of
any kind shall have been enacted, entered, promulgated or enforced by any court
or governmental authority which prohibits the consummation of the Offer or the
Merger or has the effect of making the purchase of the Shares illegal and (vi)
Purchaser shall have purchased Shares pursuant to the Offer in a number
sufficient to satisfy the Minimum Condition.
The Raymond Board. The Merger Agreement provides that, promptly upon the
acceptance for payment of, and payment by the Purchaser in accordance with the
Offer for, Shares equal to at least a two-thirds of the outstanding Shares
pursuant to the Offer, the Purchaser shall be entitled to designate up to such
number of directors on the Raymond Board, rounded up to the next whole number,
as will give the Purchaser, subject to compliance with Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, representation on the
Raymond Board equal to that number of directors which equals the product of the
total number of directors on the Raymond Board (giving effect to the directors
elected pursuant to this sentence) multiplied by a fraction, the numerator of
which shall be the number of Shares beneficially owned by Parent and the
Purchaser and the denominator of which shall be the number of Shares then
outstanding, and the Company and Raymond Board shall, at such time, take any and
all such action needed to cause the Purchaser's designees to be appointed to the
Raymond's Board (including using its reasonable best efforts to cause directors
to resign). Subject to applicable law, the Company has agreed to take all action
requested by Parent which is reasonably necessary to effect any such election,
including mailing to its shareholders the information statement containing the
information required by Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder; and the Company agrees to make such mailing with the
mailing of the Schedule 14D-9 so long as Purchaser shall have provided to the
Company on a timely basis all information required to be included in the
information statement with respect to Purchaser's designees.
The Merger Agreement provides that following the election or appointment of
such designees and prior to the Effective Time any amendment or termination of
the Merger Agreement or the Restated and Amended Certificate of Incorporation or
By-Laws of the Company, any termination of the Merger Agreement by the Company,
any extension by the Company of the time for the performance of any of the
obligations or other acts of Parent or the Purchaser or waiver of any of the
Company's rights thereunder, and any other consent or action by the Raymond
Board under the Merger Agreement, will require the concurrence of a majority
(which shall be at least two) of the directors of the Company then in office who
are directors on the date thereof and who voted to approve the Merger Agreement
or were designated by a majority of the directors of the Company who were
directors on June 16, 1997 and who voted to approve the Merger Agreement.
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Shareholders' Meeting. Pursuant to the Merger Agreement, promptly
following the purchase of Shares pursuant to the Offer, if required by New York
Law in order to consummate the Merger, the Company has agreed that, acting
through the Raymond Board, it shall, in accordance with applicable law, duly
call, convene and hold a meeting of its shareholders (the "Shareholders'
Meeting") for the purpose of voting upon the Merger Agreement and the Merger and
that the Merger Agreement and the Merger shall be submitted at such meeting. The
Merger Agreement provides that if shareholder approval of the Merger is required
by law or by the Company's Restated and Amended Certificate of Incorporation or
By-laws, as promptly as practicable, following Parent's request, the Company
will prepare and file a preliminary proxy statement with the Commission and will
use its reasonable best efforts to respond to the comments of the Commission, if
any, in connection therewith and to furnish all information regarding the
Company required in the definitive proxy statement (including, without
limitation, financial statements and supporting schedules and certificates and
reports of independent public accountants). Promptly after the expiration or
termination of the Offer, if required by the New York Law in order to consummate
the Merger, the Company will cause the definitive proxy statement to be mailed
to the shareholders of the Company and, if necessary, after the definitive proxy
statement shall have been so mailed, promptly circulate amended, supplemental or
supplemented proxy material and, if required in connection therewith, resolicit
proxies. The Company has agreed in the Merger Agreement to use its reasonable
best efforts to solicit from its shareholders proxies, and shall take all other
action necessary and advisable, to secure the vote of shareholders required by
applicable law and the Company's Restated and Amended Certificate of
Incorporation and By-Laws to obtain the approval for the Merger Agreement.
Subject to the provisions of the Merger Agreement relating to the Company's
obligation, except under limited circumstances, not to solicit other offers, the
Company agrees that it will include in the proxy statement the recommendation of
the Raymond Board that holders of Shares approve and adopt the Merger Agreement
and approve the Merger. If the Purchaser acquires at least two-thirds of the
outstanding Shares, the Purchaser will have sufficient voting power to approve
the Merger, even if no other shareholder votes in favor of the Merger.
Interim Operations. The Merger Agreement provides that, except as
permitted, required or specifically contemplated by, or otherwise described in,
the Merger Agreement or otherwise consented to or approved in writing by Parent
(which consent or approval shall not be unreasonably withheld), during the
period commencing on the date of the Merger Agreement until such time as
nominees of Parent shall comprise two-thirds of the members of the Raymond Board
or the Merger Agreement shall have been terminated pursuant to the terms
thereof, (a) the Company and each of its subsidiaries will conduct their
respective operations only according to their ordinary course of business,
consistent with past practice, and will use their reasonable best efforts to
preserve intact their respective business organization, keep available the
services of their officers and employees and maintain satisfactory relationships
with licensors, suppliers, distributors, clients, joint venture partners, and
others having significant business relationships with them, (b) neither the
Company nor any of its subsidiaries shall (i) make any change in or amendment to
its Restated and Amended Certificate of Incorporation or By-Laws (or comparable
governing documents); (ii) issue or sell any shares of its capital stock (other
than in connection with the exercise of Options (as defined herein) outstanding
on the date of the Merger Agreement) or any of its other securities, or issue
any securities convertible into, or options, warrants or rights to purchase or
subscribe to, or enter into any arrangement or contract with respect to the
issuance or sale of, any shares of its capital stock or any of its other
securities, or make any other changes in its capital structure; (iii) sell or
pledge or agree to sell or pledge any stock owned by it in any of its
subsidiaries except pursuant to certain call options in respect of the capital
stock of certain of its dealership subsidiaries; (iv) declare, pay, set aside or
make any dividend (other than regular quarterly cash dividends of $.0625 per
Share) or other distribution or payment with respect to, or split, combine,
redeem or reclassify, or purchase or otherwise acquire any shares of its capital
stock or its other securities; (v) (A) enter into any contract or commitment
with respect to capital expenditures in excess of $1.0 million, individually, or
enter into contracts or commitments with respect to capital expenditures with a
value in excess of, or requiring expenditures by the Company and its
subsidiaries in excess of, $3.0 million, in the aggregate (B) acquire (by
merger, consolidation, or acquisition of stock or assets) any corporation,
partnership or
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other business or division thereof; or (C) enter into, amend, modify, supplement
or cancel any other material contract, (vi) except in the ordinary course of
business, consistent with past practice, acquire a material amount of assets or
securities or release or relinquish any material contract rights; (vii) except
in the ordinary course of business, consistent with past practice, and except to
the extent required under existing employee and director benefit plans,
agreements or arrangements as in effect on the date of the Merger Agreement,
increase the compensation or fringe benefits of any of its directors, officers
or employees, except for increases in salary or wages of employees of the
Company or its subsidiaries who are not officers of the Company in the ordinary
course of business in accordance with past practice, or grant any severance or
termination pay not currently required to be paid under existing severance plans
or enter into any employment, consulting or severance agreement or arrangement
with any present or former director, officer or other employee of the Company or
any of its subsidiaries (other than certain employment contracts), or establish,
adopt, enter into or amend or terminate any collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or other
plan, agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees; (viii) transfer, lease, license, guarantee,
sell, mortgage, pledge, dispose of, encumber or subject to any lien, any
material assets or incur or modify any indebtedness or other material liability,
other than in the ordinary course of business, or issue any debt securities or
assume, guarantee or endorse or otherwise as an accommodation become responsible
for the obligations of any person or, other than in the ordinary course of
business consistent with past practice, make any loan or other extension of
credit; (ix) agree to the settlement of any material claim or litigation; (x)
make any material tax election or settle or compromise any material tax
liability; (xi) permit any insurance policy naming it as beneficiary or a loss
payable payee to be cancelled without notice to Parent; (xii) except as required
by applicable law or generally accepted accounting principles, make any material
change in its method of accounting; (xiii) adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization of the Company or any of its subsidiaries not
constituting an inactive subsidiary (other than the Merger); or (xiv) agree, in
writing or otherwise, to take any of the foregoing actions; and (c) the Company
shall not, and shall not permit any of its subsidiaries to, (i) take any action,
engage in any transaction or enter into any agreement which would cause any of
the representations or warranties contained in the Merger Agreement to be untrue
as of the Closing Date, or (ii) purchase or acquire, or offer to purchase or
acquire, any shares of capital stock of the Company.
No Solicitation. The Merger Agreement provides that the Company and its
affiliates and each of their respective officers, directors, employees,
representatives and agents shall immediately upon the execution of the Merger
Agreement cease any discussions or negotiations with any other parties that may
be ongoing with respect to any Acquisition Proposal (as defined below). Neither
the Company nor any of its affiliates shall, directly or indirectly, take (and
the Company shall not authorize or permit its affiliates, officers, directors,
employees, representatives, consultants, investment bankers, attorneys,
accountants or other agents or affiliates to so take) any action to (i)
encourage, solicit or initiate the making of any Acquisition Proposal, (ii)
enter into any agreement with respect to any Acquisition Proposal or (iii)
participate in any way discussions or negotiations with, or furnish or disclose
any information to, any person or entity (other than Parent or the Purchaser) in
connection with, or take any other action to facilitate, any inquiries or the
making of any proposal (including without limitation by taking any action that
would make the Rights Agreement, Section 912 of New York Law or the provisions
of Article SEVENTH of the Company's Restated and Amended Certificate of
Incorporation inapplicable to an Acquisition Proposal) that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal, provided, however,
that the Company, in response to an unsolicited Acquisition Proposal and in
compliance with certain disclosure obligations contained in the Merger
Agreement, as more fully described in the next succeeding paragraph, may
participate in discussions or negotiations with or furnish information to any
third party which proposes a transaction which the Raymond Board reasonably
determines will result in a Superior Proposal (as defined below) if the Raymond
Board believes (and has been advised by independent outside counsel) that
failing to take such action would constitute a breach of its fiduciary duties.
In addition, neither the Raymond Board nor any committee thereof shall (x)
withdraw or modify, or
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propose to withdraw or modify, in a manner adverse to Parent or the Purchaser
the approval and recommendation of the Offer and the Merger Agreement or (y)
approve or recommend, or propose to approve or recommend, any Acquisition
Proposal, provided that the Company may recommend to its shareholders an
Acquisition Proposal and in connection therewith withdraw or modify its approval
or recommendation of the Offer or the Merger if (i) the Raymond Board has
determined that the Acquisition Proposal is a Superior Proposal, (ii) all the
conditions to the Company's right to terminate the Merger Agreement in
accordance with the terms thereof have been satisfied (including the expiration
of the three business day period described therein and the payment of the
Termination Fee (as defined below) and all other amounts required pursuant to be
paid pursuant thereto) and (iii) simultaneously with such withdrawal,
modification or recommendation, the Merger Agreement is terminated in accordance
with its terms.
In addition to the obligations of the Company set forth in the preceding
paragraph, on the date of receipt thereof, the Company has agreed, pursuant to
the Merger Agreement, to advise Parent of any request for information or of any
Acquisition Proposal, or any inquiry or proposal with respect to any Acquisition
Proposal, the material terms and conditions of such request or Acquisition
Proposal, and the identity of the person making any such request or Acquisition
Proposal. The Company has further agreed to keep Parent fully informed of the
status and details (including amendments or proposed amendments) of any such
request or Acquisition Proposal and keep Parent fully informed as to the details
of any information requested of or provided by, the Company and as to the
details of all discussions or negotiations with respect to any such request,
takeover proposal or inquiry.
"Acquisition Proposal", as used herein, shall mean any inquiry, proposal or
offer from any person relating to any direct or indirect acquisition or purchase
of a substantial amount of assets of the Company or any of its subsidiaries or
of over 10% of any class of equity securities of the Company or any of its
subsidiaries, any tender offer or exchange offer that if consummated would
result in any person beneficially owning 10% or more of any class of equity
securities of the Company or any of its subsidiaries, any merger, consolidation,
business combination, sale of substantially all 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 any other transaction the consummation of which could reasonably
be expected to impede, interfere with, prevent or materially delay the Offer or
the Merger or which would reasonably be expected to dilute materially the
benefits to Parent of the transactions contemplated by the Merger Agreement. As
used herein, "Superior Proposal" shall mean a bona fide proposal made by a third
party to acquire all of the outstanding shares of the Company pursuant to a
tender offer, a merger or a sale of all of the assets of the Company (x) on
terms which a majority of the members of the Raymond Board determines in its
good faith reasonable judgment (based on the advice of independent outside
financial and legal advisors) to be more favorable to the Company and its
shareholders than the transactions contemplated by the Merger Agreement and (y)
for which financing is then available (it being understood that financing
evidenced by highly confident letters and similar letters shall not be
considered "available" for purposes making such determination). Any actions
permitted under, and taken in compliance with, this provision of the Merger
Agreement shall not be deemed a breach of any other covenant or agreement of
such party contained in the Merger Agreement.
Directors' and Officers' Insurance and Indemnification. Parent has agreed
in the Merger Agreement that the certificate of incorporation and the by-laws of
the Surviving Corporation shall contain the provisions with respect to
indemnification and exculpation from liability set forth in the Company's
Restated and Amended Certificate of Incorporation and By-Laws on the date of the
Merger Agreement, which provisions shall not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in any manner that
would adversely affect the rights thereunder of individuals, who, on or prior to
the Effective Time, were directors, officers, employees or agents of the
Company, unless such modification is required by law. In addition, pursuant to
the Merger Agreement, the Surviving Corporation shall for the six year period
commencing on the Effective Time either (x) maintain in effect the Company's
current directors' and officers' liability insurance policy covering those
persons who are were
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covered on the date of the Merger Agreement by the Company's directors' and
officers' liability insurance policy (the "Indemnified Parties"); provided,
however, that in no event shall Parent be required to expend in any one year an
amount in excess of 150% of the annual premiums paid by the Company for such
insurance; provided further, that if the annual premiums of such insurance
coverage exceed such amount, the Surviving Corporation shall be obligated to
obtain a policy with the greatest coverage available for a cost not exceeding
such amount; and provided further, that the Surviving Corporation may substitute
for such Company policies, policies with at least the same coverage containing
terms and conditions which are no less advantageous and provided that said
substitution does not result in any gaps or lapses in coverage with respect to
matters occurring prior to the Effective Time or (y) cause the Parent's
directors' and officers' liability insurance then in effect to cover those
persons who are covered on the date of the Merger Agreement by the Company's
directors' and officers' liability insurance policy with respect to those
matters covered by the Company's directors' and officers' liability policy.
Compensation and Benefits. Parent has agreed that, until the first
anniversary of the Effective Time, (a) Parent shall ensure that all employees
and officers of the Company receive compensation and benefits in the aggregate
substantially comparable to the compensation and benefits received by such
individuals immediately prior to the date of the Merger Agreement and (b) Parent
shall keep in effect all severance policies that are applicable to employees and
officers of the Company immediately prior to the date of the Merger Agreement.
In addition, Parent has agreed pursuant to the Merger Agreement that, following
the Effective Time, (w) Parent will ensure that no employee welfare benefit plan
adopted by the Company shall have any preexisting condition limitations, (x)
Parent shall honor all premiums and deductibles paid by the employees, officers
and directors of the Company under all Employee Benefit Plans (as defined in the
Merger Agreement) up to (and including) the Effective Time, (y) for purposes of
eligibility and vesting, Parent shall honor all service credit accrued by the
employees, officers and directors of the Company under all Employee Benefit
Plans up to (and including) the Effective Time and (z) Parent will honor all
employment contracts with employees and officers and all contracts for services
rendered with directors of the Company.
Options. Pursuant to the Merger Agreement, prior to the Effective Time,
each of the Raymond Board (or, if appropriate, any committee thereof) and the
Company shall use its reasonable best efforts to obtain the consent of the
holders of stock options to purchase Shares (the "Options") granted prior to the
date of the Merger Agreement under any stock option plan of the Company (the
"Stock Plans") to provide for the cancellation, effective at the Effective Time,
of all the outstanding Options as follows: Immediately prior to the Effective
Time, each Option, whether or not then vested or exercisable, shall no longer be
exercisable for the purchase of Shares but shall entitle each holder thereof, in
cancellation and settlement therefor, to payments in cash (subject to any
applicable withholding taxes, the "Cash Payment"), at the Effective Time, equal
to the product of (x) the total number of Shares subject to such Option as to
which such Option could have been exercisable and (y) the excess of the Merger
Consideration over the exercise price per Share subject to such Option, each
such Cash Payment to be paid to each holder of an outstanding Option at the
Effective Time. Pursuant to the Merger Agreement, all Stock Plans shall
terminate as of the Effective Time and the provisions in any other Employee
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.
The Company has agreed to use its reasonable best efforts to ensure that
any outstanding stock appreciation rights or limited stock appreciation rights
shall be cancelled as of immediately prior to the Effective Time without any
payment therefor. As provided in the Merger Agreement, the Stock Plans and any
other plan, program or arrangement providing for the issuance or grant of any
other interest in respect of the capital stock of the Company or any subsidiary
shall terminate as of the Effective Time.
Agreement to Use Reasonable Best Efforts. Pursuant to the Merger Agreement
and subject to the terms and conditions thereof, each of the Company, Parent and
the Purchaser shall, and the Company shall cause each of its subsidiaries to,
cooperate and use their respective reasonable best efforts to take, or cause to
be taken, all appropriate action, and to make, or cause to be made, all filings
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by the Merger
Agreement, including, without limitation, their respective
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reasonable best efforts to obtain, prior to the closing date of the Merger, all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of governmental authorities and parties to contracts with the Company and
its subsidiaries as are necessary for consummation of the transactions
contemplated by the Merger Agreement and to fulfill the conditions to the Offer
and the Merger; provided, however, that no loan agreement or contract for
borrowed money shall be repaid except as currently required by its terms, in
whole or in part, and no contract shall be amended to increase the amount
payable thereunder or otherwise to be more burdensome to the Company or any of
its subsidiaries in order to obtain any such consent, approval or authorization
without first obtaining the written approval of Parent or the Purchaser.
In addition, the Merger Agreement provides that Parent, the Purchaser and
the Company will (i) take promptly all actions necessary to make the filings
required of Parent, the Purchaser or any of their affiliates under the
applicable Antitrust Laws (as defined below), (ii) comply at the earliest
practicable date with any request for additional information or documentary
material received by Parent, the Purchaser, the Company or any of their
affiliates from the Federal Trade Commission (the "FTC") or the Antitrust
Division and (iii) cooperate with one another in connection with any filing
under applicable Antitrust Laws and in connection with resolving any
investigation or other inquiry concerning the transactions contemplated by the
Merger Agreement commenced by any of the FTC, the Antitrust Division of the
Department of Justice or state attorneys general. Parent, the Purchaser and the
Company shall in addition each use all reasonable best efforts to resolve such
objections, if any, as may be asserted with respect to the transactions
contemplated by the Merger Agreement under any Antitrust Law.
"Antitrust Laws" means the Sherman Act, as amended, the Clayton Act, as
amended, the HSR Act, the FTC Act, as amended, and all other federal and state
statutes, rules, regulations, orders, decrees, administrative and judicial
doctrines, and other laws that are designed or intended to prohibit, restrict or
regulate actions having the purpose or effect of monopolization or restraint of
trade.
Real Property Transfer Taxes. Parent has agreed to pay any New York State
Real Estate Transfer Tax and New York City Real Property Transfer Tax (the
"Transfer Taxes") and any similar taxes in any other jurisdiction (and any
penalties and interest with respect to such taxes) that become payable in
connection with the Offer and the Merger, on behalf of the shareholders of the
Company. Parent and the Company have agreed to cooperate in the preparation,
execution and filing of any required returns with respect to such taxes
(including returns on behalf of the shareholders of the Company) and in the
determination of the portion of the consideration allocable to the real property
of the Company and the subsidiaries in New York State and City (or in any other
jurisdiction, if applicable). The shareholders of the Company shall be deemed to
have agreed to be bound by such allocation in the preparation of any return with
respect to the Transfer Taxes and any similar taxes, if applicable.
Representations and Warranties. In the Merger Agreement, the Company has
made customary representations and warranties to Parent and the Purchaser with
respect to, among other things, its organization, corporate authority,
capitalization, financial statements, public filings, conduct of business,
compliance with laws, consent and approvals, opinions of financial advisors,
vote required, undisclosed liabilities and the absence of any material adverse
changes in the Company since December 31, 1996.
Termination. The Merger Agreement may be terminated and the transactions
contemplated thereby may be abandoned, at any time prior to the Effective Time,
whether before or after approval of the Merger by the Company's shareholders:
(a) by mutual consent of the Company, on the one hand, and of Parent and the
Purchaser, on the other hand; (b) by either Parent, on the one hand, or the
Company, on the other hand, if any court of competent jurisdiction or any
governmental or regulatory agency shall have issued an order, decree or ruling
or taken any other action permanently enjoining, restraining or otherwise
prohibiting the acceptance for payment of, or payment for, Shares pursuant to
the Offer or the Merger and such order, decree or ruling or other action shall
have become final and nonappealable; (c) by Parent, on the one hand, or the
Company, on the other hand, if the Effective Time shall not have occurred within
180 days after commencement of the Offer (the "Outside Date") unless the
Effective Time shall not have occurred because of a material breach of any
representation, warranty,
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obligation, covenant, agreement or condition set forth in the Merger Agreement
on the part of the party seeking to terminate the Merger Agreement; (d) by
Parent if the Offer is terminated or expires in accordance with its terms
without the Purchaser having purchased any Shares thereunder due to an
occurrence which would result in a failure to satisfy any of the conditions set
forth in Section 14 hereof, unless any such failure shall have been caused by or
resulted from the failure of Parent or the Purchaser to perform in any material
respect any covenant or agreement of either of them contained in the Merger
Agreement or the material breach by Parent or the Purchaser of any
representation or warranty of either of them contained in the Merger Agreement;
(e) by the Parent, in the event of a breach by the Company of any
representation, warranty, covenant or agreement contained in the Merger
Agreement which (A) would give rise to the failure of a condition set forth in
clause (e) or (g) of the conditions set forth in Section 14 hereof, (B) cannot
or has not been cured prior to the earlier of (i) 15 days after the giving of
written notice of such breach to the Company and (ii) two business days prior to
the date on which the Offer expires and (C) has not been waived by Parent
pursuant to the provisions of the Merger Agreement; (f) by either Parent, on the
one hand, or the Company, on the other hand, if the Raymond Board determines
that an Acquisition Proposal constitutes a Superior Proposal and the Raymond
Board believes (and has been advised by independent outside counsel) that a
failure to terminate the Merger Agreement and enter into an agreement to effect
the Superior Proposal would constitute a breach of its fiduciary duties;
provided, however the Company may not terminate the Merger Agreement in this
manner unless and until three business days have elapsed following delivery to
the other party of a written notice of such determination by the Raymond Board
and during such three business day period the Company has fully cooperated with
the Parent, including, without limitation, informing Parent of the terms and
conditions of such Superior Proposal, and the identity of the person or entity
making such proposal, with the intent of enabling both parties to agree to a
modification of the terms and conditions of the Merger Agreement so that the
transactions contemplated hereby may be effected; and provided further that at
the end of such three business day period the Raymond Board determines that the
Acquisition Proposal constitutes a Superior Proposal and the Raymond Board
continues to believe (and has again been advised by independent outside counsel)
that a failure to terminate the Merger Agreement and enter into an agreement to
effect the Superior Proposal would constitute a breach of its fiduciary duties;
provided further that the merger Agreement shall not terminate in this manner
unless (i) prior to such termination Parent has received the fees and expenses
set forth in the Merger Agreement and described below by wire transfer in same
day funds and (ii) simultaneously with such termination the Company enters into
a definitive acquisition, merger or similar agreement to effect the Superior
Proposal which acquisition agreement permits the Company to terminate the
acquisition agreement in the event the Raymond Board determines to effect a
transaction with Parent; (g) by the Company, in the event of a breach by Parent
or the Purchaser of any representation, warranty, covenant or agreement
contained in the Merger Agreement which cannot or has not been cured within 15
days after the giving of written notice of such breach to Parent and the
Purchaser, except in any case where such breaches are not reasonably likely to
affect adversely Parent's or the Purchaser's ability to complete the Offer or
Merger; or (h) by the Company, if Parent or the Purchaser shall have (i) failed
to commence the Offer within ten days following the date of the Merger
Agreement, (ii) terminated the Offer or (iii) failed to pay for Shares pursuant
to the Offer on or prior to the Outside Date, unless in the case of (i), (ii) or
(iii) such failure shall have been caused by the failure of the Company to
satisfy the conditions set forth in clauses (e) or (g) of the conditions set
forth in Section 14 hereof.
The Merger Agreement provides that, in the event of termination pursuant to
the provisions described above by Parent or the Purchaser, on the one hand, or
the Company, on the other hand, written notice thereof shall forthwith be given
to the other party or parties specifying the provision hereof pursuant to which
such termination is made, and the Merger Agreement shall become void and have no
effect, and there shall be no liability hereunder on the part of Parent, the
Purchaser or the Company, except that certain provisions of the Merger Agreement
relating to confidentiality and certain fees and expenses shall survive any
termination of the Merger Agreement. Nothing in this provision shall relieve any
party to the Merger Agreement of liability for breach of the Merger Agreement.
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Payment of Certain Fees and Expenses Upon Termination. Except as provided
in the next succeeding sentence, all costs and expenses incurred in connection
with the Merger Agreement and the consummation of the transactions contemplated
thereby shall be paid by the party incurring such costs and expenses. If the
Merger Agreement is terminated other than solely because of a material breach of
the representations or warranties of Parent or the Purchaser or a failure of
Parent or the Purchaser to fulfill a material covenant or condition contained
therein, then the Company shall (except as required to be earlier paid in
accordance with the termination provisions of the Merger Agreement) within two
days after termination has occurred, pay to Parent in same day funds all of
Parent's reasonably documented out-of-pocket expenses (the "Expenses"). If the
Merger Agreement is terminated by Parent in accordance with the events specified
in clauses (d) or (e) under the heading "-- Termination", above, because of the
occurrence of any of the events set forth in clauses (e), (f) or (g) of the
conditions specified in Section 14 hereof or if the Merger Agreement is
terminated by the Company in accordance with clause (f) under the heading
"-- Termination" above, then the Company shall (except as required to be earlier
paid in accordance with the provisions of the Merger Agreement) pay to Parent in
same day funds, in addition to the Expenses, $12,000,000 (the "Termination
Fee"), as compensation to the Parent and its affiliates for incurring the costs
and expenses related to the Offer and the Merger and for their foregoing other
opportunities.
12. DIVIDENDS AND DISTRIBUTIONS. As described above, the Merger Agreement
provides that prior to the Effective Time, the Company and each of its
subsidiaries will not declare, pay, set aside or make any dividend (other than
regular quarterly cash dividends of $0.0625 per Share) or other distribution or
payment with respect to, or split, combine, redeem or reclassify, or purchase or
otherwise acquire any shares of its capital stock or its other securities.
If, on or after June 16, 1997, the Company should (a) split, combine or
reclassify any shares of its capital stock, (b) redeem or otherwise acquire any
shares of its capital stock or any securities of its subsidiaries or (c)
authorize for issuance, issue, sell, deliver or agree or commit to issue, sell
or deliver (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any shares of its
capital stock or any other securities, then, the Purchaser, in its sole
discretion, may make such adjustments as it deems appropriate in the Offer Price
and other terms of the Offer, including, without limitation, the number or type
of securities offered to be purchased.
If, on or after June 16, 1997, the Company should declare, pay, set aside
or make any cash dividend (other than regular quarterly cash dividends of
$0.0625 per Share) or make other distributions or payments with respect to any
shares of its capital stock, or issue with respect to any shares of its capital
stock any additional shares, shares of any other class of capital stock, other
securities or any securities convertible into, or rights, warrants or options,
conditional or otherwise, to acquire, any of the foregoing, payable or
distributable to shareholders of record on a date prior to the transfer of the
Shares purchased pursuant to the Offer to the Purchaser on the Company's stock
transfer records, then, subject to the provisions of Section 14, (a) the Offer
Price may, in the sole discretion of the Purchaser, be reduced by the amount of
any such cash dividend or cash distribution and (b) the whole of any such
noncash dividend, distribution or issuance to be received by the tendering
shareholders will (i) be received and held by the tendering shareholders for the
account of the Purchaser and will be required to be promptly remitted and
transferred by each tendering shareholder to the Depositary for the account of
the Purchaser, accompanied by appropriate documentation of transfer, or (ii) at
the direction of the Purchaser, be exercised for the benefit of the Purchaser,
in which case the proceeds of each exercise will promptly be remitted to the
Purchaser. Pending such remittance and subject to applicable law, the Purchaser
will be entitled to all rights and privileges as owner of any such noncash
dividend, distribution, issuance or proceeds and may withhold the entire Offer
Price or deduct from the Offer Price the amount or value thereof, as determined
by the Purchaser in its sole discretion.
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the preceding paragraphs and nothing
herein shall constitute a waiver by the Purchaser or Parent of any of its rights
under the Merger Agreement or a limitation of remedies available to the
Purchaser or Parent for any breach of the Merger Agreement, including
termination thereof.
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13. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; EXCHANGE LISTING AND
EXCHANGE ACT REGISTRATION. The purchase of Shares pursuant to the Offer will
reduce the number of Shares that might otherwise trade publicly and could reduce
the number of holders of Shares, which could adversely affect the liquidity and
market value of the remaining Shares held by the public.
The extent of the public market for the Shares and, according to the
published guidelines of the National Association of Securities Dealers, Inc.,
the continued trading of the Shares on the NASDAQ/ NMS, after commencement of
the Offer, will depend upon the number of holders of Shares remaining at that
time, the interest in maintaining a market in the Shares on the part of
securities firms, the possible termination of registration of the Shares under
the Exchange Act, as described below, and other factors.
The Company has informed the Purchaser that, as of June 10, 1997,
10,738,604 Shares were outstanding. If, as a result of the purchase of Shares
pursuant to the Offer or otherwise, trading of the Shares on the NASDAQ/NMS is
discontinued, the liquidity of and market for the Shares could be adversely
affected. The Purchaser cannot predict whether or to what extent the reduction
in the number of Shares that might otherwise trade publicly would have an
adverse or beneficial effect on the market price for or marketability of the
Shares or whether it would cause future prices to be greater or less than the
Offer Price.
The Shares are currently "margin securities," as such term is defined under
the rules of the Federal Reserve Board, which has the effect, among other
things, of allowing brokers to extend credit on the collateral of such
securities. Depending upon factors similar to those described above regarding
listing and market quotations, following the Offer it is possible that the
Shares might no longer constitute "margin securities" for purposes of the margin
regulations of the Federal Reserve Board, in which event such Shares could no
longer be used as collateral for loans made by brokers.
The Shares are currently registered under the Exchange Act. Such
registration may be terminated upon application of the Company to the Commission
if the Shares are not listed on a national securities exchange and there are
fewer than 300 record holders of the Shares. The termination of registration of
the Shares under the Exchange Act would substantially reduce the information
required to be furnished by the Company to holders of Shares and to the
Commission and would make certain provisions of the Exchange Act, such as the
short-swing profit recovery provisions of Section 16(b), the requirement of
furnishing a proxy statement in connection with shareholders' meetings pursuant
to Section 14(a) and the requirements of Rule 13e-3 under the Exchange Act with
respect to "going private" transactions, no longer applicable to the Shares. In
addition, "affiliates" of the Company and persons holding "restricted
securities" of the Company may be deprived of the ability to dispose of such
securities pursuant to Rule 144 promulgated under the Securities Act. If
registration of the Shares under the Exchange Act were terminated, the Shares
would no longer be "margin securities" or eligible for listing on the NASDAQ/
NMS. It is the present intention of the Purchaser to cause the Company to make
an application for termination of registration of the Shares as soon as possible
after successful completion of the Offer.
14. CONDITIONS OF THE OFFER. Notwithstanding any other provision of the
Offer or the Merger Agreement, the Purchaser shall 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 the Purchaser's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for any Shares tendered if (i) there shall not
have been validly tendered and not withdrawn prior to the expiration of the
Offer a number of Shares which, together with Shares owned by Parent or the
Purchaser (or any affiliate of Parent or the Purchaser), represent two-thirds of
the total voting power of all Shares outstanding on a fully diluted basis, (ii)
any applicable waiting period (and any extension thereof) under the HSR Act
shall not have expired or been terminated, (iii) any applicable waiting period
under Exon-Florio shall not have expired or been terminated or (iv) if, at any
time on or after the date of the Merger Agreement and at or before the time of
payment for any such Shares (whether or not any
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Shares have theretofore been accepted for payment or paid for pursuant to the
Offer) any of the following shall occur:
(a) there shall be threatened, instituted or pending any action or
proceeding by any government or governmental authority or agency, domestic
or foreign, or by any other person, domestic or foreign, before any court
of competent jurisdiction or governmental authority or agency, domestic or
foreign, (i) challenging or seeking to, or which could reasonably be
expected to make illegal, impede, delay or otherwise directly or indirectly
restrain, prohibit or make materially more costly the Offer or the Merger
or seeking to obtain material damages, (ii) seeking to prohibit or
materially limit the ownership or operation by Parent or the Purchaser of
all or any material portion of the business or assets of the Company and
its subsidiaries taken as a whole or to compel Parent or the Purchaser to
dispose of or hold separately all or any material portion of the business
or assets of Parent or the Company and its subsidiaries taken as a whole,
or seeking to impose any limitation on the ability of Parent or the
Purchaser to conduct its business or own such assets, (iii) seeking to
impose limitations on the ability of Parent or the Purchaser effectively to
exercise full rights of ownership of the Shares, including, without
limitation, the right to vote any Shares acquired or owned by the Purchaser
or Parent on all matters properly presented to the Company's shareholders,
(iv) seeking to require divestiture by Parent or the Purchaser of any
Shares, (v) seeking any material diminution in the benefits expected to be
derived by Parent or the Purchaser as a result of the transactions
contemplated by the Offer or the Merger, (vi) otherwise directly or
indirectly relating to the Offer or the Merger and which would have a
material adverse effect on the business, properties, assets, operations,
results of operations or financial condition (the "Condition") of the
Company and its subsidiaries taken as a whole or Parent and its
subsidiaries taken as a whole or the value of the Shares or (vii) otherwise
materially adversely affecting the Condition of the Company and its
subsidiaries taken as a whole;
(b) there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed,
enacted, enforced, promulgated, amended, issued or deemed applicable to (i)
Parent, the Purchaser, the Company or any subsidiary or (ii) the Offer or
the Merger, by any legislative body, court, government or governmental,
administrative or regulatory authority or agency, domestic or foreign,
other than the routine application of the waiting period provisions of the
HSR Act or Exon-Florio to the Offer or to the Merger, which could
reasonably be expected to directly or indirectly result in any of the
consequences referred to in clauses (i) through (vii) of paragraph (a)
above;
(c) any change shall have occurred, or Parent shall have become aware
of any fact, that has had or would have a material adverse effect on the
Condition of the Company and its subsidiaries taken as a whole;
(d) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market (excluding any coordinated
trading halt triggered solely as a result of a specified decrease in a
market index), (ii) any decline in either the Dow Jones Industrial Average
or the Standard & Poor's Index of 500 Industrial Companies or in the New
York Stock Exchange Composite Index in excess of 20% measured from the
close of business on the trading day next preceding the date of the Merger
Agreement, (iii) any material adverse change in the general political,
market, economic or financial conditions in the United States or abroad
that would have a material adverse effect upon the Condition of the Company
and its subsidiaries taken as a whole, (iv) any material change in United
States or any other currency exchange rates or a suspension of, or
limitation on, the markets therefor, (v) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States or any other jurisdiction in which any bank or other financial
institution in any manner involved with the financing of the Offer or the
Merger is incorporated, (vi) any material limitation (whether or not
mandatory) by any Federal, state or foreign governmental authority or
agency on the extension of credit by banks or other lending institutions,
(vii) a commencement or escalation of a war or armed hostilities or other
national or international calamity directly or indirectly
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involving the United States or (viii) in the case of any of the foregoing
existing at the time of the commencement of the Offer, an acceleration or
worsening thereof;
(e) any of the representations or warranties made by the Company in
the Merger Agreement that are qualified as to materiality shall be untrue
or incorrect in any respect or any such representations and warranties that
are not so qualified shall be untrue or incorrect in any material respect,
in each case as of the date of the Merger Agreement and the Expiration
Date, except (i) for changes specifically permitted by the Merger Agreement
and (ii) that those representations and warranties which address matters
only as of a particular date shall remain true and correct as of such date;
(f) the Raymond Board shall have withdrawn, modified or amended in any
respect adverse to Parent or the Purchaser its recommendation of the Offer
or the Merger, or shall have resolved to do so;
(g) the Company shall have failed to perform in any material respect
any material obligation or to comply in any material respect with any
material agreement or material covenant of the Company to be performed or
complied with by it under the Merger Agreement; or
(h) the Merger Agreement shall have been terminated in accordance with
its terms,
which, in the reasonable judgment of the Purchaser, in any such case and
regardless of the circumstances giving rise to any such condition, makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Parent and the
Purchaser and may be asserted by Parent or the Purchaser, or may be waived by
Parent or the Purchaser, in whole or in part at any time and from time to time
in its sole discretion (subject to the terms of the Merger Agreement). 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. Any determination by Parent or the Purchaser concerning the events
described in this Section 14 will be final and binding upon all parties.
15. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS.
GENERAL. Except as otherwise disclosed herein, neither the Purchaser nor
Parent 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 the Purchaser
pursuant to the Offer or the Merger or (ii) 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
the Purchaser as contemplated herein. Should any such approval or other action
be required, the Purchaser currently contemplates that it would seek such
approval or action. The Purchaser's obligation under the Offer to accept for
payment and pay for Shares is subject to certain conditions. See Section 14.
While the 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, the
Purchaser or Parent or that certain parts of the businesses of the Company, the
Purchaser or Parent might not have to be disposed of in the event that such
approvals were not obtained or any other actions were not taken.
STATE TAKEOVER LAWS. Section 912 of New York Law prohibits any person who
is the "beneficial owner" of 20% or more of the outstanding voting stock of a
corporation and therefore is an "interested shareholder" from engaging in
certain business combinations (including a merger) with such corporation for a
period of five years following the date on which such person first became an
interested shareholder, unless the transaction by which such person became an
interested shareholder or the business combination is approved by the board of
directors of the corporation prior to the date on which such
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person became an interested shareholder. The Company has represented in the
Merger Agreement that the Raymond Board has approved the Merger Agreement and
the consummation of the Merger and the other transactions contemplated thereby
and that such approval constitutes approval of the Raymond Board of the Merger
and the other transactions contemplated by the Merger Agreement under Section
912 of New York Law.
A number of other states have adopted laws and regulations applicable to
attempts to acquire securities of corporations which are incorporated, or have
substantial assets, shareholders, principal executive offices or principal
places of business, or whose business operations otherwise have substantial
economic effects, in such states. In Edgar v. MITE Corp., the Supreme Court of
the United States (the "Supreme Court") invalidated on constitutional grounds
the Illinois Business Takeover Statute, which, as a matter of state securities
law, made takeovers of corporations meeting certain requirements more difficult.
However, in 1987 in CTS Corp. v. Dynamics Corp. of America, the Supreme Court
held that the State of Indiana may, as a matter of corporate law and, in
particular, with respect to those aspects of corporate law concerning corporate
governance, constitutionally disqualify a potential acquiror from voting on the
affairs of a target corporation without the prior approval of the remaining
shareholders. The state law before the Supreme Court was by its terms applicable
only to corporations that had a substantial number of shareholders in the state
and were incorporated there.
The Company, directly or through subsidiaries, conducts business in a
number of states throughout the United States, some of which have enacted
takeover laws. Based on information supplied by the Company and the Company's
representations in the Merger Agreement, the Purchaser does not believe that any
state takeover statutes (other than the Disclosure Act (as defined below)) apply
to the Offer or the Merger. Neither the Purchaser nor Parent has currently
complied with any state takeover statute or regulation (other than the
Disclosure Act). The 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 such right. In the event it is
asserted that one or more state takeover laws 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, the Purchaser might be required
to file certain information with, or receive approvals from, the relevant state
authorities. In addition, if enjoined, the Purchaser might be unable to accept
for payment any Shares tendered pursuant to the Offer, or be delayed in
continuing or consummating the Offer and the Merger. In such case, the Purchaser
may not be obligated to accept for payment any Shares tendered. See Section 14.
APPRAISAL RIGHTS. No appraisal rights are available to shareholders in
connection with the Offer. However, if the Merger is consummated, a shareholder
will have certain rights under Section 910 of New York Law to dissent and demand
appraisal of, and payment in cash for the fair value of, that shareholder's
Shares. Those rights, if the statutory procedures required by Section 623 of New
York Law are complied with, could lead to a judicial determination of the fair
value (excluding any value arising from the Merger) required to be paid in cash
to dissenting shareholders for their Shares. Any judicial determination of the
fair value of Shares could be based upon considerations other than or in
addition to the Offer Price or the Merger Consideration and the market value of
the Shares, including asset values and the investment value of the Shares. The
value so determined could be more or less than the Offer Price or the Merger
Consideration. Failure to follow the steps required by Section 623 of New York
Law for perfecting dissenters' rights may result in the loss of those rights.
Shareholders who do not vote in favor of approval and adoption of the
Merger Agreement, should Parent acquire less than 90% of the then outstanding
Shares of the Company and a vote be necessary, or, shareholders who file,
pursuant to Section 910, with the Company a written notice of election to
dissent as provided in Section 623 of New York law, should Parent acquire at
least 90% of the then outstanding Shares of the Company and no vote be necessary
(such shareholders, "Dissenting Shareholders"), may have the right to seek
payment in cash of the fair value of their Shares by complying with the
requirements of Section 623 of New York law. Failure of a shareholder to
strictly adhere to the requirements of Section 623 will result in the loss of
such shareholder's dissenter's rights.
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If a vote on the Merger Agreement is required, a Dissenting Shareholder
must, before the taking of such vote on the Merger Agreement, file with the
Company a written objection to the Merger. The objection must include: a notice
of the Dissenting Shareholder's election to dissent; the shareholder's name and
residence address; the number of Shares as to which the shareholder dissents;
and a demand for payment of the fair value of such Shares if the Merger is
effected. If no vote on the Merger Agreement is required, a Dissenting
Shareholder must file a written notice of the Dissenting Shareholder's election
to dissent within 20 days after the giving to him, her or it the outline of the
material features of the Merger Agreement in Section 11. The written objection
or notice of election to dissent should be delivered to The Raymond Corporation,
20 South Canal Street, Greene, New York 13778, Attention: Paul J. Sternberg,
prior to the Special Meeting (if any). To effectively exercise dissenters'
rights, such shareholder may not vote any of his, her or its Shares for the
Merger Agreement. Within 10 days after the vote of shareholders authorizing the
Merger Agreement and the Merger, the Company must give written notice of such
authorization to each Dissenting Shareholder. Such Dissenting Shareholder may
not dissent as to less than all Shares beneficially owned by the shareholder.
Upon consummation of the Merger, a Dissenting Shareholder shall cease to have
any of the rights of a shareholder, except the right to be paid the fair value
of the Dissenting Shareholder's shares, and any other rights under Section 623.
A notice of election to dissent may be withdrawn by the shareholder at any time
prior to his acceptance in writing of an offer made by the Company (as described
below). At the time of filing the notice of election to dissent or within one
month thereafter, such shareholder must submit certificates representing all
such Shares to the Company or its Transfer Agent. Failure to submit the
certificates may result in the loss of such shareholder's dissenter's rights.
Within 15 days after the expiration of the period within which shareholders may
file their notices of election to dissent, or within 15 days after consummation
of the Merger, whichever is later (but not later than 90 days after the
shareholders' vote authorizing the Merger), the Company must make a written
offer (which, if the Merger has not been consummated upon the expiration of the
ninety day period after the vote on the Merger Agreement, may be conditioned
upon such consummation) to each such Dissenting Shareholder who has filed such
notice of election to pay for the Shares at a specified price which the Company
considers to be their fair value. If the Company does not make such an offer or
the Company and the Dissenting Shareholder are unable to agree as to such fair
value, Section 623 provides for judicial determination of fair value. A vote
AGAINST approval and adoption of the Merger Agreement does not constitute the
written objection required to be filed by a Dissenting Shareholder. Failure by a
shareholder to vote AGAINST approval and adoption of the Merger Agreement,
however, will not constitute a waiver of rights under Section 623 provided that
a written objection has been properly filed and such shareholder has not voted
any of his, her or its shares FOR the approval and adoption of the Merger
Agreement.
The foregoing does not purport to be a complete statement of the provisions
of Section 623 and is qualified in its entirety by reference to such section.
THE FOREGOING SUMMARY OF THE RIGHTS OF OBJECTING SHAREHOLDERS DOES NOT
PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY
SHAREHOLDERS DESIRING TO EXERCISE ANY AVAILABLE DISSENTERS' RIGHTS. The
preservation and exercise of dissenters' rights require strict adherence to the
applicable provisions of the New York Law.
The provisions of Section 623 are complex and technical in nature.
Shareholders desiring to exercise dissenters' rights may wish to consult
counsel, since the failure to comply strictly with these provisions will result
in the loss of their dissenters' rights.
NEW YORK SECURITY TAKEOVER DISCLOSURE ACT. The New York Security Takeover
Disclosure Act (the "Disclosure Act") prohibits an offeror from making a
"takeover bid" unless certain registration, disclosure and other requirements
are met. The Disclosure Act defines a "takeover bid" as the acquisition or offer
to acquire by an offeror from an offeree, pursuant to a tender offer or request
or invitation for tenders, any equity security of a target company, if after
acquisition of the target company the offeror would, directly or indirectly, be
a beneficial owner of more than 5% of any class of the issued and outstanding
equity securities of the target company; and the Disclosure Act defines the term
"target company" as a corporation organized under the laws of the State of New
York and having its principal
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executive offices or significant business operations located within the state.
Pursuant to the Disclosure Act, the Purchaser has filed a registration statement
with the New York State Attorney General and has disclosed certain additional
information to shareholders in Schedule II to this Offer to Purchase.
GOING PRIVATE TRANSACTIONS. Rule 13e-3 under the Exchange Act is
applicable to certain "going-private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Merger, unless, among other
things, the Merger is completed more than one year after termination of the
Offer. If applicable, Rule 13e-3 would require, among other things, that certain
financial information regarding the Company and certain information regarding
the fairness of the Merger and the consideration offered shareholders of the
Company therein be filed with the Commission and disclosed to shareholders of
the Company prior to consummation of the Merger.
EXON-FLORIO. The review periods, if applicable under Exon-Florio shall
have expired or terminated. The acquisition of Shares by the Purchaser pursuant
to the Offer is subject to Exon-Florio.
EXON-FLORIO AMENDMENT. As part of the Omnibus Trade and Competitiveness
Act of 1988, a new Section (the "Exon-Florio Amendment") was added to Title VII
of the Defense Production Act of 1950, 50 U.S.C. App. 2158, et seq. (the "DPA
Act"), to empower the President or his designee to take certain actions in
relation to mergers, acquisitions and takeovers by foreign persons which could
result in foreign control of persons engaged in interstate commerce in the
United States. In particular, the Exon-Florio Amendment enables the President to
block or divest any acquisitions by foreign persons which threaten to impair the
national security of the United States.
Under the terms of the Exon-Florio Amendment, a foreign company or U.S.
subsidiary of a foreign company acquiring a U.S. company may notify the
Committee on Foreign Investment in the United States ("CFIUS") of the proposed
transaction, whereupon CFIUS or the President must decide within 30 days whether
to investigate the transaction. The Purchaser will prepare a notification for
endorsement by the Purchaser and the Company and filing with CFIUS pursuant to
Section 721 of the DPA Act. CFIUS has 30 days from the date of filing of the
completed notices to make a determination as to whether an investigation is
necessary. If an investigation is undertaken of the completed notices and CFIUS
determines that U.S. national security may be impaired by the proposed
transaction, then CFIUS may recommend to the President that he suspend or
prohibit the transaction, or direct the U.S. Attorney General to seek divestment
relief in U.S. district courts. The Purchaser does not believe that the Offer or
the Merger threaten to impair the national security of the United States.
ANTITRUST. Under the HSR Act, certain mergers and acquisitions may not be
consummated unless certain information has been furnished to the Antitrust
Division and the FTC and certain waiting period requirements have been
satisfied. The acquisition of Shares by the Purchaser pursuant to the Offer is
subject to the HSR Act requirements.
Under the provisions of the HSR Act applicable to the purchase of Shares
pursuant to the Offer, such purchase may not be made until the expiration of a
15-calendar day waiting period following the required filing of a Notification
and Report Form under the HSR Act by Parent, which Parent submitted on June 20,
1997. Accordingly, the waiting period under the HSR Act will expire at 11:59
P.M., New York City time, on July 5, 1997, unless early termination of the
waiting period is granted or Parent receives a request for additional
information or documentary material prior thereto. If either the FTC or the
Antitrust Division were to request additional information or documentary
material from Parent prior to the expiration of the 15-day waiting period, the
waiting period would be extended and would expire at 11:59 P.M., New York City
time, on the tenth calendar day after the date of substantial compliance by
Parent with such request. Thereafter, the waiting period could be extended only
by court order or by consent of Parent. If the acquisition of Shares is delayed
pursuant to a request by the FTC or the Antitrust Division for additional
information or documentary material pursuant to the HSR Act, the purchase of and
payment for Shares pursuant to the Offer will be deferred until 10 days after
the request is substantially complied with, unless the waiting period is
terminated sooner by the FTC or the Antitrust Division or extended by court
order or by consent of a party. See Section 2. Only one extension of such
waiting period pursuant to a request for additional information or documentary
material is authorized by the rules promulgated under the HSR Act,
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except by court order or by consent. Although the Company is required to file
certain information and documentary material with the Antitrust Division and the
FTC in connection with the Offer, neither the Company's failure to make such
filings nor a request to the Company from the Antitrust Division or the FTC for
additional information or documentary material will extend the waiting period.
However, if the Antitrust Division or the FTC raises substantive issues in
connection with a proposed transaction, the parties frequently engage in
negotiations with the relevant governmental agency concerning possible means of
addressing these issues and may agree to delay consummation of the transaction
while such negotiations continue.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Shares by
the Purchaser pursuant to the Offer. At any time before or after the Purchaser's
purchase of Shares, either the Antitrust Division or the FTC 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 seeking divestiture of Shares acquired by the Purchaser or divestiture
of substantial assets of Parent, the Company or any of their respective
subsidiaries. State attorneys general may also bring legal action under the
antitrust laws, and private parties may bring such action under certain
circumstances. Parent and the Purchaser believe that the acquisition of Shares
by the Purchaser will 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 a challenge is made, what the result will be. See Section 14 for certain
conditions to the Offer, including conditions with respect to litigation and
certain governmental actions.
The Parent and the Purchaser are each committed to use their reasonable
best efforts to take whatever action is necessary or appropriate to complete the
Offer and the Merger by December 13, 1997.
16. FEES AND EXPENSES. Except as set forth below, neither Parent nor the
Purchaser will pay any fees or commissions to any broker, dealer or other person
for soliciting tenders of Shares pursuant to the Offer.
Pursuant to an engagement letter between Parent and Salomon Brothers
International, Salomon Brothers International has been retained to act as
financial advisor to Parent in connection with its effort to acquire the
Company. Parent has agreed to pay Salomon Brothers International for its
services the following cash fees, with the combined total of such fees not to
exceed a maximum of $2,500,000: (a) an advisory fee of $100,000 payable at the
end of 90 days after April 13, 1997, provided that Parent has not terminated
Salomon Brothers International's engagement (with or without cause) prior to the
end of such 90 day period, (b) subsequent advisory fees of $100,000 payable at
the end of each consecutive 90 day period (subject to Salomon Brothers
International's continued engagement at the end of each such 90 day period); (c)
an additional offer fee of $1,250,000, which became payable upon the execution
of the Merger Agreement; and (d) an additional transaction fee equal to
$2,500,000 (less any amounts paid under the preceding clauses (a), (b) and (c)),
contingent upon the consummation of the acquisition of the Company and payable
at the closing thereof. In addition, Parent has agreed to reimburse Salomon
Brothers International for all reasonable out-of-pocket expenses incurred by
Salomon Brothers International, including the reasonable fees of its counsel.
Furthermore, Parent has agreed to indemnify Salomon Brothers International and
certain related persons against certain liabilities and expenses. In the event
that the Merger is not consummated and Parent receives the termination fee
contemplated by the Merger Agreement, Parent will be obligated to pay a portion
of such fee to Salomon Brothers International; provided that, including such
payment, the aggregate fees payable to Salomon Brothers under the engagement
letter shall not exceed $2,500,000. In addition, Parent has agreed to grant
Salomon Brothers International certain rights in connection with subsequent
financial transactions related to the Offer and Merger, including offerings of
securities by Parent, sales of the Company's assets, and hedge programs.
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Salomon Brothers Inc, an affiliate of Salomon Brothers International, is
acting as the Dealer Manager in connection with the Offer. Salomon Brothers Inc
will not be entitled to any additional fee for its services as Dealer Manager.
The Purchaser and Parent have also retained ChaseMellon Shareholder
Services, L.L.C., 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.
In addition, the Purchaser and Parent have retained MacKenzie Partners,
Inc. to act as the Information Agent in connection with the Offer. 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.
Brokers, dealers, commercial banks and trust companies will be reimbursed
by the Purchaser for customary mailing and handling expenses incurred by them in
forwarding offering material to their customers.
17. MISCELLANEOUS. The 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 state statute. If the Purchaser becomes aware of any valid
state statute prohibiting the making of the Offer or the acceptance of the
Shares pursuant thereto, the Purchaser will make a good faith effort to comply
with such state statute. If, after such good faith effort, the Purchaser cannot
comply with any such state statute, the Offer will not be made to (nor will
tenders be accepted from or on behalf of) the holders of Shares in such state.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of the Purchaser by one or more registered brokers or dealers
which are licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR THE 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.
Parent and the Purchaser have filed with the Commission the Schedule 14D-1,
together with exhibits, pursuant to Rule 14d-3 of the General Rules and
Regulations 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 from, the same places and in the manner set forth in Section 7
under "-- Available Information".
LIFT ACQUISITION COMPANY, INC.
June 20, 1997
33
<PAGE> 36
SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS OF PARENT AND THE PURCHASER
1. BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. Set forth below is
the name, present principal occupation or employment and material occupations,
positions, offices or employments for the past five years of each member of the
Board of Directors and each executive officer of Parent. The current business
address for each individual listed below is Svarvargatan 8, SE-595 81, Mjolby,
Sweden, unless otherwise set forth herein. Each such person is a citizen of
Sweden.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------------------- ----------------------------------------------------------
<S> <C>
Bengt Eskilson................... Chairman of Parent since 1994. Director of Ahlstroms Pumps
Corp. (Finland) since 1995, Safe Offshore ASA (Norway)
since 1997, Skane-Gripen from 1995 to 1996, and Tour
Anderson TA from 1991 to 1994. Chairman of the Boards of
Bohusbanken since 1992, Investment Bure AB since 1993,
Troponor Invest since 1994, BEKO Bil since 1996, Karlskoga
Invest AB from 1994 to 1997, Trustor AB from 1996 to 1997,
and ESAB AB from 1990 to 1993.
Jan Ohlsson...................... Deputy Chairman of Parent since 1994. Director of Parent
since 1990. Managing Director of KF Invest AB since 1994.
Chairman of Transpool AB, Karlshamns AB, Elmo-Calf AB,
Gislaved Folie AB, AB Goman-Producter, and Gisab AB.
Director, Askim Produksjonspark AS (Norge). Deputy
Chairman of Wedins Skokedja and Chief Financial Officer of
Nordico AB (renamed KC Invest AB) from 1983 to 1994.
Acting President and CEO of Parent 1992.
Hakan Soderback.................. Director of Parent since 1994. Director of Elmo-Calf AB
and Wedins Skokedja AB.
Leif Ostling..................... Director of Parent since 1994. Managing Director of the
Scania Division of Saab-Scania AB from 1988 to 1995.
Managing Director of Scania AB since 1995. Chairman of
V.A.G. Svierge AB since 1990 and Beer's N.V. (The
Netherlands) since 1994. Director of SEB Fonder AB since
1992, Inexa Profil AB since 1992, the Royal Institute of
Technology in Stockholm since 1994, the Swedish Institute
of Management since 1993, and Sabroc A/S (Denmark) since
1996.
Bengt Johansson.................. Director of Parent since 1994 (Employee Representative of
Swedish Metal Workers' Union). Welder at BT Products AB
since 1960.
Elisabeth Karlsson............... Director of Parent since 1994 (Employee Representative of
Negotiation Cartel for Salaried Employees in the Private
Business Sector). Group leader service administration at
BT Svenska AB since 1981.
Carl-Erik Ridderstrale........... Director of Parent since 1995, President and Chief
Executive Officer of Parent since 1992. Director of Inexa
Profil AB since 1992, Norrlands Gjuterier AB from 1984 to
1996, and Kanthal AB from 1992 to 1997. Chairman of
Hultdins Systems AB since 1996.
Fritz Ahlqvist................... Director of Parent since 1997. Director of Schuitema N.V.,
"We" International B.V., Allkauf Gruppe (Germany) and
CIES. Chairman of GUS Holland Holding B.V., Deputy
Chairman of Achmea Holding N.V. and Member of Executive
Board of Ahold n.v. since 1990.
</TABLE>
I-1
<PAGE> 37
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------------------- ----------------------------------------------------------
<S> <C>
EXECUTIVE MANAGEMENT
Carl-Erik Ridderstrale........... See above.
President and Chief Executive
Officer
Erik Berg........................ Employed by Parent since 1986 in same position.
Vice President
Human Resources
Ulf Brodin....................... Employed by Parent since 1963; After-Sales Director since
Senior Vice President 1995. General Manager of BT Deutschland GmbH from 1993 to
After-Sales 1995. After-Sales Director of BT International (Brussels)
from 1989 to 1993.
Ditlef Furst..................... Employed by Parent since 1982; Marketing Director since
Senior Vice President 1991.
Marketing
Christer Hogberg................. Employed by Parent since 1990. President of BT Svenska AB
President since 1990.
BT Svenska AB
Dan Hoij......................... Employed by Parent since 1988. President of BT Rolatrac
President Ltd. since 1991.
BT Rolatruc Ltd
Per Zaunders..................... Employed by Parent since 1991 in same position.
Executive Vice President
and Chief Financial Officer
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. Set forth below is
the name, present principal occupation or employment and material occupations,
positions, officers or employment for the past five years of each director and
executive officer of the Purchaser. Each person identified below is employed by
the Purchaser and has held such position since the formation of the Purchaser in
June, 1997. The principal address of the Purchaser and the current business
address for each individual listed below is the same as set forth above for
Parent. Each such person is a citizen of the Sweden. Directors are identified by
an asterisk.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------------------- ----------------------------------------------------------
<S> <C>
Carl-Erik Ridderstrale........... See above.
President and Treasurer
Per Zaunders..................... See above.
Vice President and Secretary
</TABLE>
3. OWNERSHIP OF SHARES BY DIRECTORS AND EXECUTIVE OFFICERS. None.
I-2
<PAGE> 38
SCHEDULE II
CERTAIN INFORMATION REQUIRED TO BE
GIVEN TO SHAREHOLDERS OF THE COMPANY
PURSUANT TO NEW YORK LAW
The Purchaser was incorporated on June 13, 1997 and has not engaged in any
business since its incorporation other than that incident to its incorporation
and in connection with the Offer and the Merger Agreement. Accordingly, the
Purchaser has not engaged in any significant community activities nor has the
Purchaser made any significant charitable, cultural, educational and civic
contributions.
Except for the directors and executive officers of the Purchasers set forth
in Schedule I, the Purchaser has no employees. Accordingly, the Purchaser has no
existing pension plans profit-sharing plans, or savings plans, has not provided
any educational opportunities or relocation adjustments to its employees, and
has had no labor or employment related claims or disputes.
As described in this Offer to Purchase, Parent and the Purchaser currently
intend to cause the Company's operations to continue to be run and managed by
its existing management. Parent 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 make such changes as it deems
appropriate under the circumstances then existing. Parent intends to review the
Company's policies with respect to community activities, charitable, cultural,
educational and civic contributions and employment practices.
Parent, which was formed in 1946 in the Kingdom of Sweden, is a major
manufacturer of warehouse trucks and hand trucks and is one of the leading
manufacturers of such products in terms of unit sales in Scandinavia and the
Benelux region. Operations comprise the development, manufacture and marketing
of a wide range of warehouse trucks. The product range also includes services
such as advice, financing, service, maintenance and driver training. Parent is
one of Europe's leading manufacturers in its field. As of December 31, 1996,
Parent employed approximately 3,600 people, nearly 60 percent of whom are
outside Sweden. Approximately 80 percent of Parent's sales, which in 1996
amounted to approximately SEK 4.5 billion ($578.7 million), are outside Sweden.
As of December 31, 1997, Parent had 20,000,000 ordinary shares issued and
outstanding.
PENSIONS AND BENEFITS
Parent's Swedish employees participate both in government sponsored pension
plans and in a pension plan in which Parent participates pursuant to its
collective bargaining agreements. Each such plan is a defined benefit plan under
which benefits are calculated based on an employee's benefits and years of
service. The government plan is financed by contributions from Swedish
employers, which contributions are based on the salary of the participating
employees. Benefits under the pensions plans implemented under Parent's
collective bargaining agreements are fully funded either by external insurance
schemes or by provision in the balance sheet based on independent actuarial
calculations.
Employees of BT Prime-Mover Inc. ("Prime-Mover"), an Iowa corporation and a
wholly-owned subsidiary of Parent, participate in a defined contribution plan
administered by Metropolitan Life Insurance Company, Metlife Savings Plan
Program, a tax qualified retirement savings plan, after having met the Plan's
eligibility requirements. Prime-Mover makes two types of contributions to
participants' accounts: (a) a minimum contribution, and (b) discretionary
additional contributions. Both types of contributions are made only out of
profits. It is Prime-Mover's policy to contribute an amount from current or
accumulated profits for each eligible participant account equal to 4.0% of
eligible compensation during each plan year. Discretionary contributions during
any plan year are based on the performance of Prime-Mover.
Substantially all employees of Prime-Mover participate in either defined
benefit pension plans (which are non-contributory) or defined contribution
pension plans (which may be contributory or non-contributory). In addition to
providing retirement benefits, Prime-Mover provides certain medical, dental
II-1
<PAGE> 39
and vision care benefits, life insurance and other benefits under Prime-Mover
sponsored plans for active employees and for certain retired employees.
LABOR AND EMPLOYEE RELATIONS
Each of Parent and Prime-Mover believes that its labor and employment
relations with its employees are generally good.
EDUCATION OPPORTUNITIES
Each of Parent and Prime-Mover provides educational assistance to eligible
employees who pursue programs of study that are consistent with the employee's
field of work and Parent's business.
RELOCATION ADJUSTMENTS
Each of Parent and Prime-Mover, in accordance with the terms of their
corporate policies, may reimburse certain job applicants, new employees and
current employees for certain travel and relocation expenses.
CHARITABLE AND CIVIC ACTIVITIES
Consistent with Parent's commitment to responsible community involvement,
each of Parent and Prime-Mover support a variety of charitable foundations,
particularly in communities in which Parent or Prime-Mover operates facilities
or has offices. Additionally, each of Parent and Prime-Mover supports a variety
of recognized agencies in such fields as health, education, civic affairs, and
cultural activities. Individual subsidiaries of Parent are authorized to make
charitable contributions out of their operating funds.
* * *
Except as set forth in this Schedule II, all information regarding Parent,
the Purchaser and the Offer required to be disclosed pursuant to the Disclosure
Act is set forth in this Offer to Purchase and is incorporated by reference in
the Registration Statement filed pursuant to the Disclosure Act.
II-2
<PAGE> 40
Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, certificates for the Shares
and any other required documents should be sent by each shareholder of the
Company or his broker, dealer, commercial bank, trust company or other nominee
to the Depositary as follows:
The Depositary for the Offer is:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
By Mail: By Hand: By Overnight:
ChaseMellon Shareholder
ChaseMellon Shareholder ChaseMellon Shareholder Services, L.L.C.
Services, L.L.C. Services, L.L.C. 85 Challenger Road
Post Office Box 3301 120 Broadway -- 13th Floor Mail Drop -- Reorg Dept.
South Hackensack, NJ 07606 New York, NY 10271 Ridgefield Park, NJ 07660
Attn: Reorganization Department Attn: Reorganization Department Attn: Reorganization Department
Facsimile Transmission: Confirmation of Fax:
(201) 329-8936 (201) 296-4860
</TABLE>
Any questions or requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery or
other tender offer materials may be directed to the Information Agent or the
Dealer Manager at their respective telephone numbers and addresses listed below.
A shareholder may also contact a broker, dealer, commercial bank or trust
company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
[MACKENZIE PARTNERS, INC.]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
The Dealer Manager for the Offer is:
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Call collect: (212) 783-6131
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING ASSOCIATED RIGHTS)
OF
THE RAYMOND CORPORATION
PURSUANT TO THE OFFER TO PURCHASE, DATED JUNE 20, 1997
BY
LIFT ACQUISITION COMPANY, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
BT INDUSTRIES AB
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JULY 18, 1997, UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
By Mail: By Hand: By Overnight:
ChaseMellon Shareholder ChaseMellon Shareholder ChaseMellon Shareholder
Services, L.L.C. Services, L.L.C. Services, L.L.C.
Post Office Box 3301 120 Broadway -- 13th Floor 85 Challenger Road
South Hackensack, NJ 07606 New York, NY 10271 Mail Drop Reorg. Dept.
Attn: Reorganization Attn: Reorganization Ridgefield Park, NJ 07660
Department Department Attn: Reorganization
Department
</TABLE>
Facsimile Transmission:
(201) 329-8936
Confirmation of Fax:
(201) 296-4860
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) SHARES TENDERED
ON THE CERTIFICATES)) (ATTACH ADDITIONAL LIST IF NECESSARY)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SHARE TOTAL NUMBER OF NUMBER OF
CERTIFICATE SHARES EVIDENCED BY SHARES
NUMBER(S)* SHARE CERTIFICATE(S)* TENDERED**
===============================================================
===============================================================
===============================================================
---------------------------------------------------------------
Total Shares
------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares
evidenced by any Share Certificate(s) delivered to the Depositary are
being tendered. See Instruction 4.
================================================================================
<PAGE> 2
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by shareholders if
certificates evidencing Shares (as defined below) are to be forwarded herewith
or, unless an Agent's Message (as defined in the Offer to Purchase) is utilized,
if tenders of Shares are to be made by book-entry transfer to the account
maintained by the Depositary at The Depository Trust Company ("DTC") or The
Philadelphia Depository Trust Company ("PDTC") (each a "Book-Entry Transfer
Facility" and collectively, the "Book-Entry Transfer Facilities"), pursuant to
the procedures set forth in Section 3 of the Offer to Purchase. Shareholders who
tender Shares by book-entry transfer are referred to herein as "Book-Entry
Shareholders" and other shareholders are referred to herein as "Certificate
Stockholders." Delivery of documents to a Book-Entry Transfer Facility does not
constitute delivery to the Depositary for the Offer (as defined herein).
Stockholders whose certificates evidencing Shares ("Share Certificates")
are not immediately available or who cannot deliver their Share Certificates and
all other documents required hereby to the Depositary on or prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase), or who
cannot comply with the book-entry transfer procedures on a timely basis, may
nevertheless tender their Shares according to the guaranteed delivery procedure
set forth in Section 3 of the Offer to Purchase. See Instruction 2.
[ ] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
---------------------------------------------------------------------------
CHECK BOX OF APPLICABLE BOOK-ENTRY TRANSFER FACILITY:
[ ] DTC [ ] PDTC (check one)
Account Number:
- --------------------------------------------------------------------------------
Transaction Code Number:
- --------------------------------------------------------------------------------
[ ] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):
---------------------------------------------------------------------------
Window Ticket Number (if any):
---------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
---------------------------------------------------------------------------
Name of Institution which Guaranteed Delivery:
---------------------------------------------------------------------------
IF DELIVERED BY BOOK-ENTRY TRANSFER, CHECK BOX OF APPLICABLE BOOK-ENTRY
TRANSFER FACILITY:
[ ] DTC [ ] PDTC (check one)
Account Number (if Delivered by Book-Entry Transfer):
- --------------------------------------------------------------------------------
Transaction Code Number:
- --------------------------------------------------------------------------------
2
<PAGE> 3
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
The undersigned hereby tenders to Lift Acquisition Company, Inc., a New
York corporation (the "Purchaser") and an indirect wholly-owned subsidiary of BT
Industries AB, a corporation organized under the laws of Sweden ("Parent"), the
above-described shares of common stock, par value $1.50 per share (the
"Shares"), of The Raymond Corporation, a New York corporation (the "Company"),
including the associated Common Stock Purchase Rights (the "Rights") issued
pursuant to the Rights Agreement, dated as of March 1, 1997, between the Company
and American Stock Transfer & Trust Company, as Rights Agent, as amended (the
"Rights Agreement"), pursuant to the Purchaser's offer to purchase all of the
outstanding Shares at a price of $33.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated June 20, 1997 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which together with the Offer
to Purchase constitutes the "Offer").
Upon the terms and conditions 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 of the Shares that are being tendered hereby and any and
all dividends, distributions, rights, other Shares and other securities issued
or issuable in respect thereof on or after June 16, 1997 (other than regular
quarterly cash dividends of $0.0625 per share) (collectively, "Distributions"),
and appoints the Depositary the true and lawful agent and attorney-in-fact of
the undersigned with respect to such Shares and all Distributions with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest) to (a) deliver such Share Certificates (as
defined herein) and all Distributions or transfer ownership of such Shares and
all Distributions on the account books maintained by a Book-Entry Transfer
Facility, together in either such case with all accompanying evidences of
transfer and authenticity, to or upon the order of the Purchaser, (b) present
such Shares and all Distributions for transfer on the books of the Company and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares and all Distributions, all in accordance with the terms
and the conditions of the Offer.
The undersigned hereby irrevocably appoints the designees of the Purchaser,
and each of them, the attorneys-in-fact and proxies of the undersigned, each
with full power of substitution, to vote in such manner as each such attorney
and proxy or any substitute thereof shall deem proper in the sole discretion of
such attorney-in-fact and proxy or such substitute and otherwise act (including
pursuant to written consent) with respect to all of the Shares tendered hereby
and all Distributions which have been accepted for payment by the Purchaser
prior to the time of such vote or action, which the undersigned is entitled to
vote at any meeting of shareholders (whether annual or special and whether or
not an adjourned meeting) of the Company or otherwise. This proxy and power of
attorney is coupled with an interest in the Shares and is irrevocable and is
granted in consideration of, and is effective upon, the acceptance for payment
of such Shares and all Distributions by the Purchaser in accordance with the
terms of the Offer. Such acceptance for payment shall revoke any other proxy
granted by the undersigned at any time with respect to such Shares and all
Distributions and no subsequent proxies will be given (or, if given, will not be
deemed effective) with respect thereto by the undersigned. The undersigned
understands that in order for Shares to be deemed validly tendered pursuant to
the Offer, immediately upon the Purchaser's acceptance of such Shares and all
Distributions for payment the Purchaser or its designee must be able to exercise
full voting rights with respect to such Shares and all Distributions, including,
without limitation, voting at any meeting of the Company's shareholders then
scheduled.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby (and all Distributions) and that, when the same are accepted for
payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances, and the
3
<PAGE> 4
same will not be subject to any adverse claim. The undersigned will, upon
request, execute and deliver 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 promptly remit and transfer to the Depositary for the
account of the Purchaser any and all Distributions in respect of the Shares
tendered hereby, accompanied by appropriate documentation of transfer; and
pending such remittance or appropriate assurance thereof, the Purchaser shall be
entitled to all rights and privileges as owner of any such Distributions and may
withhold the entire purchase price or deduct from the purchase price the amount
or value thereof, as determined by the Purchaser in its sole discretion.
No authority herein conferred or agreed to be conferred shall be affected
by, and all such authority shall survive, the death or incapacity of the
undersigned. All obligations of the undersigned hereunder shall be binding upon
the heirs, personal representatives, successors and assigns of the undersigned.
Subject to the withdrawal rights set forth in Section 4 of the Offer to
Purchase, the tender of Shares hereby made is irrevocable.
The undersigned understands that tenders of Shares pursuant to any of the
procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer. The Purchaser's acceptance for payment of such
Shares will constitute a binding agreement between the undersigned and the
Purchaser upon the terms and subject to the conditions set forth in the Offer.
The undersigned recognizes that under certain circumstances set forth in the
Offer to Purchase, the Purchaser may not be required to accept for payment any
of the Shares tendered hereby.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any Share
Certificates not tendered or not 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 not tendered or not 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 issue any Share
Certificates not so tendered or accepted for payment in the name of, and deliver
said check and/or return such certificates to, the person or persons so
indicated. 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.
4
<PAGE> 5
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates(s) for Shares not tendered or not
purchased and/or the check for the purchase price of Shares purchased are to be
issued in the name of someone other than the undersigned.
Issue check and/or certificate(s) to:
Name:
- ----------------------------------------------
(PLEASE PRINT)
Address:
- ------------------------------------------------
- ------------------------------------------------
(INCLUDE ZIP CODE)
- ------------------------------------------------
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 ON REVERSE)
Credit unpurchased Shares delivered by
book-entry transfer to the Book-Entry Transfer
account at:
[ ] DTC
[ ] PDTC
- ------------------------------------------------
(ACCOUNT NUMBER)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
purchased and/or the check for the purchase price of Shares purchased are to be
sent to someone other than the undersigned, or to the undersigned at an address
other than that shown above.
Mail check and/or certificates to:
Name:
- ------------------------------------------------
(PLEASE PRINT)
Address:
- ------------------------------------------------
- ------------------------------------------------
(INCLUDE ZIP CODE)
- ------------------------------------------------
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 ON REVERSE)
5
<PAGE> 6
IMPORTANT
SHAREHOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 1 AND 5)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 CONTAINED HEREIN)
Signature(s) of Holder(s):
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Dated: , 1997
-----------
(Must be signed by the registered holder(s) exactly as names(s) appear(s)
on share certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificate(s) and documents
transmitted with this Letter of Transmittal. If signature is by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or other persons acting in a fiduciary or representative
capacity, please provide the following information and see Instruction 5.)
Name(s):
--------------------------------------------------------------------------
(Please Print)
Capacity (Full Title):
--------------------------------------------------------------------------
Address:
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(Include Zip Code)
<TABLE>
<S> <C>
------------------------------------------ ------------------------------------------
(Area Code and Telephone No.) (Tax Identification and
Social Security No.)
</TABLE>
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature:
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Name:
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(Please Type or Print)
Title:
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Name of Firm:
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Address:
--------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
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Dated:
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6
<PAGE> 7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including most banks, savings and loan associations and brokerage
houses) which 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"). Signatures on
this Letter of Transmittal need not be guaranteed (a) if this Letter of
Transmittal is signed by the registered holder(s) of the Shares (which term, for
purposes of this document, shall include any participant in one of the
Book-Entry Transfer Facilities whose name appears on a security position listing
as the owner of Shares) tendered herewith and such holder(s) have not completed
either the instruction entitled "Special Payment Instructions" or the
instruction entitled "Special Delivery Instructions" on this Letter of
Transmittal or (b) if such Shares are tendered for the account of an Eligible
Institution. See Instruction 5 of this Letter of Transmittal.
2. Delivery of Letter of Transmittal and Share Certificates or Book-Entry
Confirmations. This Letter of Transmittal is to be used either if Share
Certificates are to be forwarded herewith or, unless an Agent's Message is
utilized, if tenders are to be made pursuant to the procedures for tender by
book-entry transfer set forth in Section 3 of the Offer to Purchase. Share
Certificates evidencing all physically tendered Shares or confirmation of any
book-entry transfer into the Depositary's account at one of the Book-Entry
Transfer Facilities of Shares tendered by book-entry transfer, as well as this
Letter of Transmittal or a facsimile thereof, properly completed and duly
executed with any required signature guarantees, or an Agent's Message, and any
other documents required by this Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth herein on or prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase).
Shareholders whose 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 or who cannot complete the
procedures for book-entry transfer on a timely basis may nevertheless tender
their Shares by properly completing and duly executing a Notice of Guaranteed
Delivery pursuant to the guaranteed delivery procedure set forth in Section 3 of
the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made
by or through an Eligible Institution; (ii) a properly completed and duly
executed Notice of Guaranteed Delivery substantially in the form provided by the
Purchaser must be received by the Depositary on or prior to the Expiration Date;
and (iii) Share Certificates or confirmation of any book-entry transfer into the
Depositary's account at Book-Entry Transfer Facilities of Shares tendered by
book-entry transfer, as well as a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed with any required signature guarantees (or,
in the case of book-entry delivery, an Agent's Message), and all other documents
required by this Letter of Transmittal, must be received by the Depositary
within three NASDAQ/National Market System trading days after the date of
execution of such Notice of Guaranteed Delivery.
If Share Certificates are forwarded to the Depositary in multiple
deliveries, a properly completed and duly executed Letter of Transmittal (or
facsimile hereof) must accompany each such delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER.
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
SUCH DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal or a facsimile hereof, waive any right to receive any
notice of the acceptance of their Shares for payment.
7
<PAGE> 8
3. Inadequate Space. If the space provided under "Description of Shares
Tendered" is inadequate, the Share Certificate numbers and/or the number of
Shares should be listed on a separate schedule and attached hereto.
4. Partial Tenders (Applicable to Certificate Shareholders Only). If fewer
than all the Shares evidenced by any Share Certificate submitted are to be
tendered, fill in the number of Shares which are to be tendered in the box
entitled "Number of Shares Tendered." In such cases, new Share Certificate(s)
evidencing the remainder of the Shares that were evidenced by Share
Certificate(s) delivered to the Depositary will be sent to the person signing
this Letter of Transmittal, unless otherwise provided in the box entitled
"Special Delivery Instructions" on this Letter of Transmittal, as soon as
practicable after the Expiration Date. 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 holders of the Shares
tendered hereby, the signature must correspond with the names as written on the
face of the certificates without alteration, enlargement or 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 of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of Shares.
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, attorney-in-fact, officer of a
corporation or other person acting in fiduciary or representative capacity, such
person should so indicate when signing, and proper evidence satisfactory to the
Purchaser of such person's authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or Share
Certificates evidencing Shares not tendered or purchased are to be issued in the
name of, a person other than the registered holder(s). Signatures on such
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 holder of the Shares tendered hereby, the Share Certificate(s) must
be endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered holder or holders appear(s) on
such Share Certificate(s). Signatures on such Share Certificates or stock powers
must be guaranteed by an Eligible Institution.
6. Stock Transfer Taxes. Except as otherwise provided in this Instruction
6, the Purchaser will pay or cause to be paid any stock transfer taxes with
respect to the transfer and sale of purchased Shares to it or its order pursuant
to the Offer. If, however, payment of the purchase price of any Shares purchased
is to be made to, or, in the circumstances permitted hereby, if Share
Certificates for Shares not tendered or purchased are to be registered in the
name of, any person other than the registered holder, or if tendered Share
Certificates are registered in the name of any person other than the person(s)
signing this Letter of Transmittal, the amount of any stock transfer taxes
(whether imposed on the registered holder or such person) payable on account of
the transfer to such person will be deducted from the purchase price if
satisfactory evidence of the payment of such taxes, or exemption therefrom, is
not submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Share Certificates listed in this
Letter of Transmittal.
7. Special Payment and Delivery Instructions. If a check for the purchase
price is to be issued in the name of, and/or Share Certificates for Shares not
tendered or not accepted for payment are to be issued or returned to, a person
other than the signer of this Letter of Transmittal or if a check and/or such
Share Certificates are to be mailed to someone other than the signer of this
Letter of Transmittal or to an
8
<PAGE> 9
address other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed.
8. Requests for Assistance or Additional Copies. Questions or requests for
assistance may be directed to, or additional copies of the Offer to Purchase,
this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender
offer materials may be obtained from, the Information Agent or the Dealer
Manager at their respective addresses set forth below or from your broker,
dealer, commercial bank or trust company.
9. Substitute Form W-9. Under the United States federal income tax backup
withholding rules, unless an exemption applies under the applicable law and
regulations, 31% of the gross proceeds payable to a shareholder or other payee
pursuant to the Offer must be withheld and remitted to the United States
Treasury, unless the shareholder or other payee provides his or her taxpayer
identification number ("TIN") (employer identification number or social security
number) to the Depositary and certifies that such number is correct. Therefore,
each tendering shareholder should complete and sign the Substitute Form W-9
included as part of the Letter of Transmittal so as to provide the information
and certification necessary to avoid backup withholding, unless such shareholder
otherwise establishes to the satisfaction of the Depositary that it is not
subject to backup withholding. Certain shareholders (including, among others,
all corporations and certain foreign shareholders) are not subject to these
backup withholding and reporting requirements. In order for a foreign
shareholder to qualify as an exempt recipient, that shareholder should submit an
IRS Form W-8 or a Substitute Form W-8, signed under penalties of perjury,
attesting to that shareholder's exempt status. Such statements can be obtained
from the Depositary. Failure to provide the information on the form may subject
the tendering shareholder to 31% U.S. federal income tax withholding on the
payment of the purchase price. If the tendering shareholder has not been issued
a TIN and has applied for a number or intends to apply for a number in the near
future, such shareholder should write "Applied For" in the space for the TIN in
Part 1 of the Substitute Form W-9, sign and date the form and provide it to the
Depositary. Notwithstanding that "Applied For" is written on Part 1 and the
certification is completed, the Depositary will withhold 31% of all payments
made prior to the time a properly certified TIN is provided.
10. Lost or Destroyed Certificates. If any Share Certificates have been
lost or destroyed, the stockholder should promptly notify the Company's transfer
agent, American Stock Transfer & Trust Company, at (212) 936-5100. The
stockholder will then be instructed as to the procedure to be followed in order
to replace the Share Certificates. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed Share Certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF OR AN AGENT'S
MESSAGE TOGETHER WITH SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER
AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY MUST BE
RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE. SHAREHOLDERS ARE
ENCOURAGED TO RETURN A COMPLETED SUBSTITUTE FORM W-9 WITH THEIR LETTER OF
TRANSMITTAL.
9
<PAGE> 10
IMPORTANT TAX INFORMATION
The shareholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If Shares are registered 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.
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS
(SEE INSTRUCTION 9)
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------
PAYER'S NAME: [ ]
- ----------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX ------------------------------
FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING Social Security Number
DEPARTMENT OF THE TREASURY BELOW OR
INTERNAL REVENUE SERVICE ------------------------------
Employer Identification Number
- ----------------------------------------------------------------------------------------------------------
PAYER'S REQUEST FOR PART 2 -- For Payees exempt from Backup Withholding: Write "Exempt" in
TAXPAYER IDENTIFICATION this Part 2, enter your correct TIN in Part 1 and sign and date this
NUMBER ("TIN") AND form.
CERTIFICATION PART 3 -- 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 (i) I am exempt from
backup withholding, (ii) I have not been notified by the Internal Revenue
Service (the "IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (iii) the
IRS has notified me that I am no longer subject to backup
withholding.
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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
return.
- -------------------------------------------------------------------------------------------------------
SIGNATURE: _________________________________________________________________ DATE: _________________
NAME (Please Print)___________________________________________________________________________________
ADDRESS ______________________________________________________________________________________________
CITY, STATE AND ZIP CODE _____________________________________________________________________________
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATIONS OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
10
<PAGE> 11
The Information Agent for the Offer is:
[MACKENZIE PARTNERS, INC.]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
The Dealer Manager for the Offer is:
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Call Collect: (212) 783-6131
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
THE RAYMOND CORPORATION
AT
$33.00 NET PER SHARE
BY
LIFT ACQUISITION COMPANY, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY
OF
BT INDUSTRIES AB
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JULY 18, 1997, UNLESS THE OFFER IS EXTENDED.
June 20, 1997
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Lift Acquisition Company, Inc., a New York
corporation (the "Purchaser") and an indirect wholly-owned subsidiary of BT
Industries AB, a corporation organized under the laws of Sweden ("Parent"), to
act as Dealer Manager in connection with the Purchaser's offer to purchase for
cash all of the outstanding shares of common stock, par value $1.50 per share
(the "Shares"), of The Raymond Corporation, a New York corporation (the
"Company"), including the associated Common Stock Purchase Rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of March 1, 1997 (as amended,
the "Rights Agreement"), between the Company and American Stock Transfer & Trust
Company, as Rights Agent, for $33.00 per Share, net to the seller in cash, upon
the terms and subject to the conditions set forth in the Offer to Purchase dated
June 20, 1997 (the "Offer to Purchase") and in the related Letter of Transmittal
(which together with the Offer to Purchase constitute the "Offer"), copies of
which are enclosed herewith. Please furnish copies of the enclosed materials to
those of your clients for whose accounts you hold Shares in your name or in the
name of your nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase dated June 20, 1997.
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients. Facsimile copies of the Letter of
Transmittal may be used to tender Shares.
3. A letter to stockholders of the Company from Ross K. Colquhoun,
Chairman of the Board 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 and
mailed to stockholders of the Company.
4. The Notice of Guaranteed Delivery for Shares to be used to accept the
Offer if neither of the two procedures for tendering Shares set forth
in the Offer to Purchase can be completed on a timely basis.
<PAGE> 2
5. A printed form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of your
nominee, with space provided for obtaining such clients' instructions
with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to ChaseMellon Shareholder Services,
L.L.C., the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JULY 18, 1997 UNLESS THE OFFER IS EXTENDED.
Please note the following:
1. The tender price is $33.00 per Share, net to the seller in cash, as set
forth in the Introduction to the Offer to Purchase.
2. The Offer is subject to (a) there being validly tendered and not
properly withdrawn prior to the Expiration Date (as defined in the
Offer to Purchase) a number of Shares which, together with Shares owned
by Parent or the Purchaser (or any affiliate of Parent or the
Purchaser), constitutes at least 66 2/3% of the Shares outstanding
(calculated on a fully diluted basis), (b) the expiration or
termination of any applicable waiting period (and any extension
thereof) under the Hart-Scott Rodino Antitrust Improvements Act of
1976, as amended, and the rule and regulation thereunder and (c)
certain other conditions. See the Introduction and Sections 1 and 14 of
the Offer to Purchase.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, transfer taxes on the purchase of Shares by the
Purchaser pursuant to the Offer. However, federal income tax backup
withholding at a rate of 31% may be required, unless an exemption is
available or unless the required tax identification information is
provided. See Instruction 9 of the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on Friday, July 18, 1997 unless the Offer is extended.
6. The board of directors of the Company has unanimously approved each of
the Offer and the Merger (as defined in the Offer to Purchase),
unanimously determined that each of the Offer and the Merger is fair
to, and in the best interests of, the shareholders of the Company and
unanimously recommends that the shareholders accept the Offer and
tender their Shares pursuant to the Offer.
7. Notwithstanding any other provision of the Offer, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) certificates
evidencing such Shares (the "Share Certificates") pursuant to the
procedures set forth in Section 3 of the Offer to Purchase, or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with
respect to such Shares, (b) the Letter of Transmittal or a facsimile
thereof, properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined in the Offer to
Purchase) in connection with a book-entry transfer, and (c) any other
documents required by the Letter of Transmittal. Accordingly, payment
may not be made to all tendering shareholders at the same time
depending upon when Share Certificates are actually received by the
Depositary.
2
<PAGE> 3
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal or a facsimile thereof and any required
signature guarantee or other required documents should be sent to the Depositary
and (ii) Share Certificates representing the tendered Shares or a timely
Book-Entry Confirmation should be delivered to the Depositary 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 or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender may be
effected by following the guaranteed delivery procedures specified in Section 3
of the Offer to Purchase.
Neither Parent nor the Purchaser will pay any fees or commissions to any
broker, dealer or other person for soliciting tenders of Shares pursuant to the
Offer (other than the Dealer Manager, its affiliates, the Depositary and the
Information Agent as described in the Offer to Purchase). The Purchaser will,
however, upon request, reimburse you for customary mailing and handling expenses
incurred by you in forwarding any of the enclosed materials to your clients. The
Purchaser will pay or cause to be paid any transfer taxes payable on the
transfer of Shares to it, except as otherwise provided in Instruction 6 of the
Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
Salomon Brothers Inc, the Dealer Manager for the Offer, at 7 World Trade Center,
New York, New York 10048, telephone number (212) 783-6131, or to MacKenzie
Partners, Inc., the Information Agent for the Offer, at 156 Fifth Avenue, New
York, New York 10010, telephone number (212) 929-5500 or (800) 322-2885.
Requests for copies of the enclosed materials may also be directed to the
Dealer Manager or to the Information Agent at the above addresses and telephone
numbers.
Very truly yours,
Salomon Brothers Inc
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE COMPANY, THE DEALER MANAGER,
THE DEPOSITARY, THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED
DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
THE RAYMOND CORPORATION
AT
$33.00 NET PER SHARE
BY
LIFT ACQUISITION COMPANY, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY
OF
BT INDUSTRIES AB
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JULY 18, 1997, UNLESS THE OFFER IS EXTENDED.
June 20, 1997
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated June 20,
1997 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer") relating to the offer by Lift Acquisition
Company, Inc., a New York corporation (the "Purchaser") and an indirect wholly-
owned subsidiary of BT Industries AB ("Parent"), a corporation organized under
the laws of Sweden ("Parent"), to purchase all the outstanding shares of common
stock, par value $1.50 per share (the "Shares"), of The Raymond Corporation, a
New York corporation (the "Company"), including the associated Common Stock
Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as
of March 1, 1997 (as amended, the "Rights Agreement"), between the Company and
American Stock Transfer & Trust Company, as Rights Agent, at a purchase price of
$33.00 per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer. Holders of Shares whose certificates
evidencing such Shares (the "Share Certificates") are not immediately available
or who cannot deliver their Share Certificates and all other required documents
to ChaseMellon Shareholder Services, L.L.C. as depositary (the "Depositary") or
complete the procedures for book-entry transfer prior to the Expiration Date (as
defined in the Offer to Purchase) must tender their Shares according to the
guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase.
We are (or our nominee is) the holder of record of Shares held by us for
your account. A tender of such Shares can be made only by us 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.
Accordingly, we request instruction as to whether you wish to have us
tender on your behalf any or all Shares held by us for your account pursuant to
the terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $33.00 per Share, as set forth in the Introduction
to the Offer to Purchase.
2. The Offer is subject to (a) there being validly tendered and not
properly withdrawn prior to the Expiration Date, together with Shares
owned by Parent or the Purchaser (or any affiliate of Parent or the
Purchaser), at least 66 2/3% of the outstanding Shares (calculated on a
fully diluted basis), (b) the expiration or termination of any
applicable waiting period (and any extension thereof)
<PAGE> 2
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder, and (c) certain other
conditions. See the Introduction and Sections 1 and 14 of the Offer to
Purchase.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer. However, federal income tax backup withholding at
a rate of 31% may be required, unless an exemption is provided or unless
the required taxpayer identification information is provided. See
Instruction 9 of the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on Friday, July 18, 1997, unless the Offer is extended.
6. The board of directors of the Company has unanimously approved each of
the Offer and the Merger (as defined in the Offer to Purchase),
unanimously determined that each of the Offer and the Merger is fair to,
and in the best interests of, the Company's shareholders and unanimously
recommends that the Company's shareholders accept the Offer and tender
their Shares pursuant thereto.
7. Notwithstanding any other provision of the Offer, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Share Certificates
pursuant to the procedures set forth in Section 3 of the Offer to
Purchase, or a timely Book-Entry Confirmation (as defined in the Offer
to Purchase) with respect to such Shares, (b) the Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any
required signature guarantees or an Agent's Message (as defined in the
Offer to Purchase) in connection with a book-entry transfer, and (c) any
other documents required by the Letter of Transmittal. Accordingly,
payment may not be made to all tendering shareholders at the same time
depending upon when Share Certificates are actually received by the
Depositary.
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 set forth herein. If you authorize the tender of your
Shares, all such Shares will be tendered unless otherwise specified below. AN
ENVELOPE TO RETURN YOUR INSTRUCTIONS TO US IS ENCLOSED. YOUR INSTRUCTIONS SHOULD
BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF
PRIOR TO THE EXPIRATION DATE.
The Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If the Purchaser becomes aware of any valid state statute prohibiting
the making of the Offer or the acceptance of Shares pursuant thereto, the
Purchaser will make a good faith effort to comply with such state statute or
seek to have such statute declared inapplicable to the Offer. If, after such
good faith effort, the Purchaser cannot comply with such state statute, the
Offer will not be made to (nor will tenders be accepted from or on behalf of)
the holders of Shares in such state. In any jurisdiction where the securities,
blue sky or other laws require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed to be made on behalf of the Purchaser by
Salomon Brothers Inc or one or more registered brokers or dealers licensed under
the laws of such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO THE OFFER
TO PURCHASE FOR CASH ALL OF THE OUTSTANDING
SHARES OF COMMON STOCK
OF
THE RAYMOND CORPORATION
The undersigned acknowledge(s) receipt of your letter, the enclosed Offer
to Purchase, dated June 20, 1997, and the related Letter of Transmittal (which
together constitute the "Offer") in connection with the offer by Lift
Acquisition Company, Inc., a New York corporation (the "Purchaser") and an
indirect wholly-owned subsidiary of BT Industries AB, a corporation organized
under the laws of Sweden, to purchase all outstanding shares of common stock,
par value $1.50 per share (the "Shares"), of The Raymond Corporation, a New York
corporation, including the associated Common Stock Purchase Rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of March 1, 1997 (as
amended, the "Rights Agreement"), between the Company and American Stock
Transfer & Trust Company, as Rights Agent.
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or if no number is indicated below, all Shares) which are held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
NUMBER OF SHARES TO BE TENDERED:*
- ------------------------ Shares
Account Number:
- -------------------------------
Dated: , 1997
- ------------------
SIGN HERE
--------------------------------------
--------------------------------------
SIGNATURE(S)
--------------------------------------
--------------------------------------
PLEASE TYPE OR PRINT NAME(S)
--------------------------------------
--------------------------------------
PLEASE TYPE OR PRINT
ADDRESS(ES) HERE
--------------------------------------
AREA CODE AND TELEPHONE NUMBER
--------------------------------------
TAXPAYER IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S)
- ---------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<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>
<S> <C> <C>
GIVE THE SOCIAL
FOR THIS TYPE OF ACCOUNT: SECURITY NUMBER OF --
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF --
</TABLE>
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner of the
(joint account) account or, if combined
funds, the first individual
on the account(1)
3. Husband and wife (joint The actual owner of the
account) account or, if joint funds,
either person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if the minor
account) is the only contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee for incompetent person(3)
a designated ward, minor,
or incompetent person
7. a. The usual revocable The grantor-trustee(1)
savings trust account
(grantor is also
trustee)
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under State law
8. Sole proprietorship The Owner(4)
account
9. A valid trust, estate, or Legal entity (Do not furnish
pension trust the identifying 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 The partnership
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or nominee
nominee
15. Account with the The public entity
Department of 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 but you may also enter your business or "doing
business as" name. You may use either your social security number or
employer identification number.
(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 do not have a taxpayer identification number, obtain Form SS-5,
Application for a Social Security Number Card, or Form SS-4, Application for
Employer Identification Number, at the local office of the Social Security
Administration or the Internal Revenue Service (the "IRS") and apply for a
number.
If you do not have a taxpayer identification number, write "Applied For" in Part
1 of the Substitute Form W-9, sign and date the form and give it to the payer.
If you write "Applied For" in Part 1, you must provide the payer with a taxpayer
identification number within 60 days. Notwithstanding that "Applied For" is
written in Part 1 and the Certification is completed, the payer will withhold
31% of all payments made prior to the time a properly certified TIN is provided.
CERTIFICATION
You must sign the certification or backup withholding will apply. If you are
subject to backup withholding and you are merely providing your correct taxpayer
identification number to the payer, you must cross out Part 2 in the
certification before signing the form.
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 dealer in securities or commodities required to register 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 non-exempt trust described in
section 4947(a)(1) of the Code.
- - An entity registered at all times during the tax year under the Investment
Company Act of 1940.
- - A foreign central bank of issue.
Exempt Payees Described Above Should File W-9 To Avoid Erroneous Backup
Withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION
NUMBER, WRITE "EXEMPT" IN PART 2 OF THE FORM AND RETURN IT TO THE PAYER. ALSO
SIGN AND DATE THE FORM.
PRIVACY ACT NOTICE -- Section 6109 of the Code requires recipients of dividends,
interest or other payments to give taxpayer identification numbers to payers who
must report the payments to the IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers generally must withhold 31% of taxable
interest, dividend and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If you
fail to furnish your taxpayer identification number to the 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. -- Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT
YOUR TAX ADVISOR OR THE IRS
<PAGE> 1
FOR IMMEDIATE RELEASE
JOINT PRESS RELEASE
BT INDUSTRIES AB AGREES TO ACQUIRE
THE RAYMOND CORPORATION
GREENE, NEW YORK, June 16, 1997 - BT Industries AB ("BT") and
The Raymond Corporation (Nasdaq: RAYM) ("Raymond") announced today that they
have entered into a definitive merger agreement, pursuant to which BT will
acquire all of the outstanding capital stock of Raymond for $33.00 per share in
cash. The agreement, which was unanimously approved by the Board of Directors of
Raymond, provides for a tender offer for Raymond's outstanding shares to be
launched by Lift Acquisition Company, Inc., a wholly-owned subsidiary of BT.
BT, headquartered in Mjolby, Sweden, is one of the leading
European manufacturers of lift-trucks and related materials handling equipment,
and markets its products in the United States under BT PRIME-MOVER(TM) brand
name. BT's ordinary shares are traded on the Stockholm stock exchange. BT's 1996
revenues were approximately $600 million.
The Raymond Corporation is one of the recognized leaders in
supplying equipment used in the transportation, storage and selection of
products in manufacturing, warehousing and shipping applications. Raymond sells
products under its RAYMOND(TM) and DOCKSTOCKER(TM) brands and produces OEM
equipment for sale under a variety of brand names.
In announcing the acquisition of Raymond, Carl-Erik
Ridderstrale, President and Chief Executive Officer of BT, stated "BT
<PAGE> 2
and Raymond have complimentary product lines and distribution channels and the
combination of the companies will increase BT's geographic presence and position
BT for continued growth in an increasingly global marketplace."
Mr. Ridderstrale continued, "We look forward to working with
Raymond's highly competent and dedicated employees, management team and dealer
network and are committed to supporting Raymond's future growth with all the
resources available to us."
Ross K. Colquhoun, Chairman of the Board and Chief Executive
Officer of Raymond declared, "Raymond's Board of Directors is pleased to
announce the sale of the company at a price which we believe represents an
excellent value to our shareholders. BT's offer represents a 27% premium to the
stock price on February 28, 1997, the day prior to the announcement of our
intention to seek to enhance shareholder value."
"We are also pleased that our employees and dealers will be
affiliated with a well-regarded company that is committed and able to continue
the growth of the RAYMOND(TM) and DOCKSTOCKER(TM) brands. This represents an
opportunity and challenge that we believe will be attractive to all of them."
Salomon Brothers Inc acted as financial advisor to BT in this
transaction and Lehman Brothers acted as financial advisor to Raymond.
-2-
<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 June 20,
1997 and the related Letter of Transmittal and is being made to all holders of
Shares. Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of Shares pursuant thereto, Purchaser will
make a good faith effort to comply with such state statute or seek to have such
statute declared inapplicable to the Offer. If, after such good faith effort,
Purchaser cannot comply with such state statute, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) the holders of Shares in
such state. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer shall be
deemed to be made on behalf of Lift Acquisition Company, Inc. by Salomon
Brothers Inc ("Salomon Brothers") or one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
Notice of Offer to Purchase for Cash
All of the Outstanding Shares of Common Stock
of
The Raymond Corporation
at
$33.00 Net Per Share
by
Lift Acquisition Company, Inc.
an indirect wholly-owned subsidiary
of
BT Industries AB
Lift Acquisition Company, Inc., a New York corporation ("Purchaser") and an
indirect wholly-owned subsidiary of BT Industries AB, a corporation organized
under the laws of Sweden ("Parent"), is offering to purchase all outstanding
shares (the "Shares") of common stock, par value $1.50 per share, of The Raymond
Corporation, a New York corporation (the "Company"), including the associated
Common Stock Purchase Rights issued pursuant to the Rights Agreement dated as of
March 1, 1997, between the Company and American Stock Transfer & Trust Company,
as rights agent, as amended, at a price of $33.00 per Share, net to the seller
in cash, without interest thereon, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated June 20, 1997 and the related Letter of
Transmittal (which together constitute the "Offer").
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JULY 18, 1997, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, there being validly tendered
and not properly withdrawn prior to the Expiration Date (defined below) a number
of Shares which constitutes, on a fully diluted basis, at least 66 2/3% of all
outstanding Shares and the expiration or termination of any applicable waiting
period (and any
- 1 -
<PAGE> 2
extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations thereunder. The Offer is also
subject to other terms and conditions. See the Introduction and Section 1 of the
Offer to Purchase.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of
June 16, 1997 (the "Merger Agreement"), among Parent, Purchaser and the Company.
The Merger Agreement provides, among other things, that as soon as practicable
after the purchase of Shares pursuant to the Offer and the satisfaction of other
conditions set forth in the Merger Agreement and in accordance with the New York
Business Corporation Law ("New York Law"), Purchaser will be merged with and
into the Company (the "Merger"). Following the consummation of the Merger, the
Company will continue as the surviving corporation and will be an indirect
wholly-owned subsidiary of Parent. At the effective time of the Merger, each
outstanding Share (other than Shares held by any subsidiary of the Company or in
the treasury of the Company, or by Parent, Purchaser or any other subsidiary of
Parent, which Shares will be cancelled, and other Shares, if any, held by
shareholders who perfect their dissenters' rights under New York Law) will be
converted into the right to receive $33.00 in cash, without interest.
The Board of Directors of the Company has unanimously approved each of the Offer
and the Merger, unanimously determined that each of the Offer and the Merger is
fair to, and in the best interests of, the shareholders of the Company and
unanimously recommends that shareholders accept the Offer and tender their
Shares pursuant to the Offer.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to the
Offer.
For purposes of the Offer, Purchaser will be deemed to have accepted for payment
(and thereby purchased) Shares validly tendered and not properly withdrawn if,
as and when Purchaser gives oral or written notice to the depositary (the
"Depositary") of its acceptance of such Shares for payment. Upon the terms and
subject to the conditions of the Offer, payment for Shares accepted pursuant to
the Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering shareholders for the purposes
of receiving payments from Purchaser and transmitting payments to tendering
shareholders whose Shares have theretofore been accepted for payment. 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 (or timely Book-Entry Confirmation (as defined in Section 2 of the Offer
to Purchase) of such Shares, if such procedure is available, into the
Depositary's account at The Depository Trust Company or The Philadelphia
Depository Trust Company pursuant to the procedures set forth in Section 3 of
the Offer to Purchase), (ii) the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed with all required signature guarantees (or
Agent's Message in the case of a book-entry transfer), and (iii) all other
- 2 -
<PAGE> 3
documents required by the Letter of Transmittal. Under no circumstances will
interest be paid on the purchase price for Shares to be paid by Purchaser,
regardless of any delay in making such payment.
The term "Expiration Date" shall mean 12:00 midnight, New York City time, on
Friday, July 18, 1997, unless and until Purchaser, in accordance with the terms
of the Offer and 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. Subject to the terms of the Merger Agreement and the applicable
rules and regulations of the Securities and Exchange Commission and applicable
law, Purchaser expressly reserves the right, in its sole discretion, at any time
or from time to time, to extend for any reason the period of time during which
the Offer is open, including the occurrence of any of the events specified in
Section 14 of the Offer to Purchase, by giving oral or written notice of such
extension to the Depositary. Any such extension will be followed, as promptly as
practicable, by a public announcement thereof by no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. During any such extension, all Shares previously tendered and
not withdrawn will remain subject to the Offer, subject to the right of a
tendering shareholder to withdraw such shareholder's Shares. Without limiting
the manner in which Purchaser may choose to make any public announcement,
Purchaser will have no obligation to publish, advertise or otherwise communicate
any such announcement other than by issuing a press release to the Dow Jones
News Service or as otherwise may be required by law.
Except as otherwise provided below, tenders of Shares made pursuant to the Offer
are irrevocable. Shares tendered pursuant to the Offer may be withdrawn 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 August
18, 1997 or such later date as may apply if the Offer is extended. 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 below. 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 certificates evidencing Shares to be
withdrawn have been delivered or otherwise identified to the Depositary, then,
prior to the physical release of such certificates, the tendering shareholder
must also submit the serial numbers shown on the particular certificate
evidencing the Shares to be withdrawn, and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, as defined in Section
3 of the Offer to Purchase. If Shares have been tendered pursuant to the
procedure for book-entry transfer 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 applicable Book-Entry Transfer Facility (as defined in Section 2
of the Offer to Purchase) to be credited with the withdrawn Shares. All
questions as to the form and
- 3 -
<PAGE> 4
validity (including time of receipt) of notices of withdrawal will be determined
by Purchaser, in it sole discretion, which determination shall be final and
binding on all parties. Any Shares properly withdrawn will thereafter be deemed
not validly tendered for purposes of the Offer, but may be retendered at any
time prior to the Expiration Date by following any of the procedures described
in Section 3 of the Offer to Purchase.
The Company has provided Purchaser with the Company's shareholder list and
security position listings for the purpose of disseminating the Offer to
shareholders. The Offer to Purchase, the related Letter of Transmittal and any
relevant materials will be mailed to record holders of Shares whose names appear
on the Company's shareholder list and will be furnished, for subsequent
transmittal to beneficial owners of Shares, to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the Company's shareholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule 14d-6
under the Securities Exchange Act of 1934, as amended, is contained in the Offer
to Purchase and is incorporated herein by reference.
The Offer to Purchase and the related Letter of Transmittal contain important
information which should be read carefully before any decision is made with
respect to the Offer.
Requests for copies of the Offer to Purchase, the related Letter of Transmittal
and other tender offer documents may be directed to the Information Agent as set
forth below, and copies will be furnished promptly at Purchaser's expense.
Questions or requests for assistance may be directed to the Information Agent or
the Dealer Manager as set forth below. Neither Parent nor Purchaser will pay any
fees or commissions to any broker or dealer or other person (other than Salomon
Brothers, its affiliates, the Depositary and the Information Agent) in
connection with the solicitation of tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
[MacKenzie Logo]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll-Free (800) 322-2885
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Mail: By Hand: By Overnight:
ChaseMellon Shareholder ChaseMellon Shareholder ChaseMellon Shareholder
Services
Services, L.L.C. Services, L.L.C. 85 Challenger Road
Post Office Box 3301 120 Broadway-13th Floor Mail Drop-Reorg Dept.
- 4 -
<PAGE> 5
South Hackensack, NJ 07606 New York, NY 10271 Ridgefield Park, NJ 07660
Attn: Reorganization Department Attn: Reorganization Department Attn:
Reorganization Department
Facsimile Transmission: Confirmation of Fax:
(201) 329-8936 (201) 296-4860
The Dealer Manager for the Offer is:
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Call collect: (212) 783-6131
June 20, 1997
- 5 -
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
THE RAYMOND CORPORATION
(Not to be Used for Signature Guarantees)
This Notice of Guaranteed Delivery, or one substantially equivalent hereto,
must be used to accept the Offer (as defined below) if (i) certificates ("Share
Certificates") representing shares of common stock, par value $1.50 per share,
of The Raymond Corporation, a New York corporation (the "Company"), including
the associated Common Stock Purchase Rights (the "Rights") issued pursuant to
the Rights Agreement, dated as of March 1, 1997 (as amended, the "Rights
Agreement"), between the Company and American Stock Transfer & Trust Company, as
Rights Agent, are not immediately available, (ii) time will not permit Share
Certificates and all other required documents to reach ChaseMellon Shareholder
Services, L.L.C. (the "Depositary") on or prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase (as defined below)), or (iii) the
procedure for delivery by book-entry transfer cannot be completed on a timely
basis. This Notice of Guaranteed Delivery may be delivered by hand or mail or
sent by facsimile transmission to the Depositary. See Section 3 of the Offer to
Purchase.
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
By Mail: By Hand: By Overnight:
ChaseMellon Shareholder ChaseMellon Shareholder ChaseMellon Shareholder
Services, L.L.C. Services, L.L.C. Services, L.L.C.
P.O. Box 3301 120 Broadway, 13th Floor 85 Challenger Road
Midtown Station New York, New York 10271 Mail Drop-Reorg. Dept.
South Hackensack, New Jersey Attn: Reorg. Dept. Ridgefield Park, New Jersey 07660
07606 Attn: Reorg. Dept.
Attn: Reorg. Dept.
Facsimile Transmission: Confirmation of Fax:
(201) 329-8936 (201) 296-4860
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
<PAGE> 2
LADIES AND GENTLEMEN:
The undersigned hereby tenders to Lift Acquisition Company, Inc., a New
York corporation (the "Purchaser") and an indirect wholly-owned subsidiary of BT
Industries AB, a corporation organized under the laws of Sweden ("Parent"), upon
the terms and subject to the conditions set forth in the Offer to Purchase,
dated June 20, 1997 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which together constitute the "Offer"), receipt of each of which is
hereby acknowledged, the number of Shares indicated below pursuant to the
guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase.
------------------------------------------------------
Number of Shares:
--------------------------------
Account Number:
----------------------------------
Certificate No(s). (if available):
------------------------------------------------------
------------------------------------------------------
If Share(s) will be tendered by book-entry transfer check one box:
[ ] The Depository Trust Company
[ ] The Philadelphia Depository Trust Company
Account Number:
----------------------------------
Date:
--------------------------------------, 1997
======================================================
Name(s) of Record Holder(s):
------------------------------------------------------
------------------------------------------------------
Address(es):
--------------------------------------
------------------------------------------------------
Area Code and Telephone Number(s):
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
SIGNATURE(S)
------------------------------------------------------
THE GUARANTEE ON THE FACING PAGE MUST BE COMPLETED
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a financial institution which 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,
guarantees to deliver to the Depositary, at one of its addresses set forth
above, Share Certificates evidencing the Shares tendered hereby, in proper form
for transfer, or confirmation of book-entry transfer of such Shares, into the
Depositary's account at The Depository Trust Company or The Philadelphia
Depository Trust Company, in each case with delivery of a Letter of Transmittal
(or facsimile thereof) properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined in the Offer to Purchase)
in the case of a book-entry delivery, and any other required documents, all
within three NASDAQ/National Market System trading days after the date of
execution of this Notice of Guaranteed Delivery.
------------------------------------------------------
Name of Firm:
----------------------------------------------------------------
Address:
----------------------------------------------------------------
ZIP CODE
Area Code and
Telephone Number:
------------------------------------------------------
AUTHORIZED SIGNATURE
Title:
------------------------------------------------
Dated: , 1997
---------------
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY.
SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
<PAGE> 1
REVOLVING CREDIT
FACILITY AGREEMENT
USD 80,000,000
DATED 13 JUNE, 1997
BETWEEN
BT INDUSTRIES AB
AS BORROWER
AND
SWEDBANK (SPARBANKEN SVERIGE AB (PUBL))
AS LENDER
<PAGE> 2
2(12)
1. PURPOSE
The Borrower requires a Revolving Credit Facility (the "Facility") up to a
total amount of USD 80,000,000 to be used to refinance loans to Raymond
Corporation and Raymond Leasing Corporation in case the present lenders request
early repayment due to change of ownership.
2. DEFINITIONS
In this Agreement, except where the context otherwise requires:
"Advance" means each Advance made or to be made available by
the Lender hereunder to the Borrower;
"Advance Date" means the date upon which each Advance is made
available under this Agreement;
"Agreement" means this Agreement as from time to time amended;
"Business Day" means a day on which lenders and foreign exchange
markets are open for the transaction of business of
the nature required by this Agreement in the place or
places from time to time specified by the Lender;
"Credit Facility" means the aggregate principal amount of all Advances
pursuant to this Agreement and at any time being
outstanding;
"Expiry Date" means the day which is 12 months after the Borrower's
signing of the merger agreement with Raymond
Corporation;
"Interest Payment Date" means the last day of the Interest Period relative to
an Advance;
"Interest Period" means in relation to each Advance a period of 1, 3,
or 6 months or such other periods as may be agreed
between the Borrower and the Lender. Every Interest
period must end before the Expiry Date;
"LIBOR" means, in relation to an Advance denominated in USD,
the rate per annum of the offered quotations for
deposits in USD and for a period equal to the
relevant Interest Period which appears on Reuters
screens FRBD-FRBH, (or through such other information
system or on such other screens replacing that system
or screens respectively) which displays British
Bankers Association Interest Settlement Rates for
deposits in USD, at or about 11.00 a.m. London time
two Business days prior to the commencement of each
Interest Period;
<PAGE> 3
3(12)
"Margin" means 0,675 per cent unit per annum;
"Merger Agreement" means the agreement and plan of merger by and among the
Borrower, the Borrower's wholly owned acquisition
subsidiary and Raymond Corporation entered into no later
than noon US EDT June 18, 1997;
"USD" means the lawful currency, at any relevant time
hereunder, in the United States of America.
In this Agreement headings are for convenience only and wherever relevant
singular includes plural and vice versa.
3. CREDIT FACILITY
The Lender will make available Advances to the Borrower upon the terms and
subject to the conditions hereof up to a total amount of USD 80,000,000.
The Borrower is entitled to prepay on any interest roll-over date the drawings,
all or part of the Facility in a minimum amount of USD 20,000,000 without
penalty provided that 7 Business Days prior written notice has been given to
the Lender.
The Borrower is entitled to cancel any undrawn part of the Facility without
penalty provided that 7 Business Days prior written notice has been given to
the Lender. Any cancelled amount can not be reborrowed.
4. ADVANCE
Each Advance under this Agreement shall be made available by payment from the
Lender to the Borrower upon the Lenders receipt at or before 09.00 a.m. Swedish
time, not less than three Business Days prior to each disbursement, of
irrevocable payment instruction specifying in respect of such Advance (a) the
value date, which must be a Business day (b) the amount expressed in USD and
which has to be a minimum amount of USD 20,000,000 (c) the Interest Period and
(d) complete payment instructions.
5. CONDITIONS PRECEDENT
The following conditions must be fulfilled before an Advance shall be made
available under this Agreement:
(a) the Borrower shall have obtained all permits necessary for the entering
into this Agreement and making the Advances available;
<PAGE> 4
4(12)
(b) the Lender shall be satisfied that the Borrower's representations and
warranties in Clause 7 below, to be repeated for each Advance, are
true in all material respects;
(c) the Lender shall have received a copy of the request for early
repayment of existing financing given to Raymond Corporation and
Raymond Leasing Corporation for the purpose of financing Raymond
Leasing Corporation's leasing portfolio; and
(d) the Merger Agreement is in full force and effect.
6. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants and the Lender shall be satisfied, that:
(a) the Borrower is duly formed and validly existing under the laws of
Sweden and has full power to carry on its business as it is now being
conducted and that the entering into and performance of this Agreement
by the Borrower is consistent with all the statutes which govern its
activities and has been duly authorised by all necessary action on
the part of the Borrower;
(b) the Borrower has obtained from the relevant authorities all the permits,
consents and authorisations necessary for the entering into and
fulfilling of the obligations under this Agreement;
(c) the individual/s signing this Agreement on behalf of the Borrower was/
were duly authorised to sign;
(d) this Agreement constitutes direct, general, legally valid and binding
obligations of the Borrower enforceable in accordance with its terms
and ranking pari passu with all other unsecured and unsubordinated
outstanding indebtedness of the Borrower except debt which is preferred
by operation of law;
(e) the execution of this Agreement does not result in a breach of, or
constitutes a default under, any agreement or other instrument to
which the Borrower is a party or by which it or any of its assets
may be bound or affected;
(f) the execution, delivery and performance of this Agreement will not
violate in any respect any provision of any existing law or of any
regulation or undertaking to which the Borrower is subject or a
party;
(g) no litigation, arbitration or administrative proceeding is pending
or threatened against the Borrower, which might result in any
material adverse change in the business or condition (financial or
otherwise) of the Borrower;
(h) no event has occurred which (by giving of notice and/or by lapse of
time or otherwise) would constitute an event of default under this
Agreement, nor is the Borrower in default under any other Agreement
to which it is a party or by which it may be bound or otherwise in
default of any kind in respect of any financial
<PAGE> 5
5(12)
commitment or obligation (including obligations under guarantees) which
could have a material adverse effect on the Borrower's ability to
perform its obligations under this Agreement and nor is the Borrower
aware of a fact which (by giving of notice and/or lapse of item or
otherwise) would constitute such a default;
(i) this Agreement is not liable to any registration stamp or similar tax
otherwise as has been paid or will be paid by the Borrower;
(j) there has been no material adverse change in the financial position of
the Borrower to date from its position as presented to the Lender in
connection with the negotiation of this Agreement, nor does any
written information given by the Borrower in relation to this Credit
Facility contain any misstatement of fact as at the date hereof or
omit to state a fact which would be materially adverse to the interest
of the Lender; and
(k) it has obtained necessary authorisations, approvals, licenses, consents,
exemptions, clearances, filings or registrations required for the
conduct of the business, trade or ordinary activities.
The Borrower represents and warrants that the conditions under this Clause 7
have been fulfilled and shall also be fulfilled in relevant parts as long as
the Borrower has any payment obligations under this Agreement.
7. REPAYMENT
Each Advance, together with accrued interest, shall be repaid on the Expiry
Day or, if such day is not a Business day, on the next following Business Day,
unless that day falls in a new calendar month, in which case it shall be paid
on the preceding Business Day.
8. INTEREST
The Borrower shall pay interest on each Advance for the Interest Period
relative thereto in accordance with this Clause 8. Interest on each Advance
shall be paid on the Interest Payment Day relating thereto except that for any
Interest Period in excess of 6 months, accrued interest will be payable after
each 6 months, with interest on the remaining period being paid at the end of
such period.
The rate of interest applicable to each Advance denominated in USD for the
Interest Period relative thereto, shall be the rate per annum determined by the
Lender to be the aggregate of (i) LIBOR relevant to such Advance for such
Interest Period and (ii) the Margin.
Interest will be calculated on the basis of the actual number of days elapsed
and a year of 360 days (365/360).
In the event that the Borrower should fail to pay on the due date any
principal or interest or any other amount due hereunder, the Borrower shall pay
interest on such principal, interest
<PAGE> 6
6(12)
and any other such amount from the due date up to and including the day when
the amount is actually paid calculated at a rate determined by the Lender to be
the higher of 1 per cent unit per annum above (i) the rate applicable to such
overdue amount immediately prior to the due date and (ii) the rate of interest
determined by the Lender at which over-night loans in the respective currency
are offered to the Lender in the London Interbank Money Market at or about
11:00 a.m. London time on each day during such period in an amount equal to the
sum unpaid. Such interest shall be compounded and be payable on demand.
Without prejudice to the foregoing, the Borrower shall indemnify the Lender for
any costs or expenses which the Lender may sustain or incur as a consequence of
the default in payment by the Borrower.
9. FEES AND EXPENSES
9.1 Arrangement fee
The Borrower shall pay an Arrangement fee to the Lender which amounts to 0,125
per cent of the amount of the Facility and payable up-front after signing of the
Merger Agreement. This fee is payable in full whether or not the Borrower
completes the agreed bid on Raymond Corporation.
9.2 Initial and special costs
The Borrower shall forthwith on demand pay the Lender the amount of all
reasonable costs and expenses (including legal fees) properly incurred by it in
connection with:
(a) the negotiation, preparation, printing and execution of this Agreement and
any other necessary documents (including legal opinion);
(b) any amendment, waiver, consent or suspension of rights (or any proposal for
any of the foregoing) requested by the Borrower;
(c) travelling expenses;
(d) any other matter, not of an ordinary administrative nature, arising out of
or in connection with this Agreement.
9.3 Enforcement's costs
The Borrower shall forthwith on demand pay to the Lender the amount of all
reasonable costs and expenses (including legal fees) incurred by it in
connection with the enforcement of, or the preservation of, any rights under
this Agreement.
10. PAYMENTS
All payments in favour of the Lender to be made by the Borrower hereunder shall
be made
<PAGE> 7
7(12)
in the currency in which the Advance is denominated (if not otherwise indicated
herein) to the Lender, not later than 11:00 a.m. New York time on the date upon
which the relevant payment is due and shall be made in immediately available
funds or such funds as shall be customary for lenders for the settlement of
international transactions in the respective currencies.
All amounts payable by the Borrower under this Agreement, whether in respect of
principal or interest or otherwise, shall be paid in full without any deduction
on account of any present or future taxes, levies, duties, charges or other
imposts or withholding of any nature imposed or levied by any authority in
Sweden save for increased costs arising from an increase of the current BIS
capital adequacy requirements. In the event of the Borrower being compelled by
law or other regulation to make any such deduction or withholding from any
payment to the Lender, the Borrower shall - on the due date - pay such
additional amounts as may be necessary to ensure that the aggregate of the net
amounts received by the Lender after such deduction or withholding equals the
amount which would have been received in the absence of any such deduction or
withholding.
All taxes required by law to be deducted or withheld by the Borrower from any
amounts paid or payable under this Agreement, shall be paid when due and the
Borrower shall, as soon as reasonably practicable after the payment is made,
deliver to the Lender all relevant tax receipt - or similar evidence - or
copies thereof that the payment has been duly remitted to the appropriate
authority.
If the Lender receives a payment insufficient to discharge all the amounts then
due and payable by the Borrower, it may be applied by the Lender in its
discretion, upon informing the Borrower, towards amounts due and unpaid of
whatever kind owed by the Borrower under this Agreement.
11. UNCONDITIONAL PAYMENTS
The liability of the Borrower to make payments or to discharge any other debts
under this Agreement is in no way conditional upon performance of any contract
by any other party and it shall not be affected in any way by reason of any
claim, which the Borrower might have or might consider that it has against any
other party or the Lender by way of set-off or counter-claim or otherwise.
12. ACCOUNTS
The Lender shall maintain in accordance with its usual practice an account or
account evidencing the amounts from time to time lent by, owing to and paid to
it pursuant to this Agreement and such account or accounts shall constitute (in
the absence of manifest error) prima facie evidence of such amounts. The Lender
shall regularly provide the Borrower with statements of accounts.
<PAGE> 8
8(12)
13. TERMINATION
Notwithstanding the fact that this Agreement has terminated the provisions in
this Agreement (save for paragraph 3) will remain in full force and effect
until the Credit Facility is repaid to the full satisfaction of the Lender.
14. ASSIGNMENT
The Borrower may not assign its rights and obligations under this Agreement
unless that the Lender has given its prior written consent.
The Lender may at any time assign all or any part of its rights and/or
obligations under this Agreement to any other Lender or financial institution
affiliated with the Lender and, with the prior written consent of the Borrower,
which consent shall not be unreasonably withheld or delayed, to any other party.
Upon an assignment made in accordance with this Clause the Borrower or the
Lender, as the case may be, shall on demand by the other party execute such
documents and all such acts as the Lender may request to give effect to the
assignment.
All references in this Agreement to the Lender shall after an assignment being
made hereunder mutatis mutandis apply also to the assignee. After an assignment
has been made hereunder by the Lender, the assignee shall be represented by the
Lender as agent until further notice from the assignee. If an assignment will
be made hereunder by the Borrower, then the Lender and the assignee shall agree
about the representation of the assignee.
15. FORCE MAJEURE
The Lender shall not be held responsible for any loss or damage resulting from
a legal enactment (Swedish or foreign), the intervention of a public authority
(Swedish or foreign), an act of war, strike, blockade, boycott, lockout or
any other similar circumstances. The reservations in respect of strikes,
blockades, boycotts and lockouts shall apply even if the Lender itself takes
such measures or is the subject of such measures.
Any loss or damage that has occurred in other circumstances shall be
indemnified by the Lender only to the extent that such loss or damage has been
caused by gross negligence or wilful misconduct on the part of the Lender. The
Lender shall in no case be responsible for indirect losses or damages.
If an impediment as set out above exists with respect to any of the Lender's
obligations, then the Lender is entitled to postpone the performance of such
obligation until such impediment no longer exists.
<PAGE> 9
9(12)
16. UNDERTAKINGS
The Borrower hereby undertakes with the Lender that as long as any moneys are
outstanding under this Agreement:
(a) it will promptly inform the Lender of any occurrence of which it becomes
aware which by giving of notice and/or by lapse of time or otherwise would
constitute an event of default under this Agreement or any occurrence of
which it becomes aware which in its reasonable opinion, might otherwise
adversely affect its ability to perform its obligations under this
Agreement;
(b) it will obtain or procure the obtaining of every consent and license and
do all other acts and things as may from time to time be necessary or
desirable for the due performance of its obligations under this Agreement;
(c) it will not create or have outstanding any indebtedness secured on or over
its assets or revenues, whether now owned or hereinafter existing, except
for liens, security interests, encumbrances, mortgages and pledges arising
solely by operation of law and in the ordinary course of its operations;
(d) it will maintain insurance cover in relation to its business and assets of
a type and in an amount as is usual for prudent companies carrying on a
business such as that carried on by the Borrower in the place of its
operations; and
(e) it will provide the Lender, as soon as available but in any event not
later than 180 days after the close of its financial year, with its
audited unconsolidated and consolidated financial statements (including
balance sheets and profit and loss accounts) and supply the Lender with
copies of its audited (where required by law, or if not, unaudited)
interim report(s) as soon as available but in any event not later than 90
days after the end of the relevant period;
17. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) the Borrower fails to repay on the due date any Advance under this
Agreement or any interest or other amount payable by the Borrower under
this Agreement; or
(b) the Borrower defaults under any other provision of this Agreement and such
default continues for thirty (30) days after receipt by the Borrower of
notice of such default from the Lender; or
(c) any indebtedness of the Borrower other than the indebtedness created
hereunder becomes due and payable prior to the stated maturity thereof
resulting from a default thereunder, or if such indebtedness is not paid
at the maturity thereof, or if payable on demand such indebtedness is not
paid, when demanded, or any guarantee or indebtedness given by the
Borrower in relation to a third party is not honoured when
<PAGE> 10
10(12)
due and called, or if the Borrower is otherwise in breach of, or in
default under, any agreement pursuant to which such indebtedness was
incurred and the occurrence of such event or events is reasonably
considered by the Lender to have a material adverse effect on the
ability of the Borrower to perform its obligations hereunder; or
(d) necessary approval for the Borrower in connection with this Agreement or
the transactions contemplated therein is revoked, rescinded, suspended
or otherwise limited in effect; or
(e) any representation or warranty made by the Borrower in this Agreement
proves to have been incorrect in any material respect or becomes
materially incorrect; or
(f) any order is made by any competent court or resolution passed by the
Borrower for the appointment of a liquidator, receiver or trustee of the
Borrower or of all or a substantial part of its assets, except for the
purpose of amalgamation or reorganisation not involving insolvency the
terms of which shall have been previously approved by the Lender; or
(g) the Borrower is unable to, or admits inability to pay its debts as they
fall due, or is adjudicated or found bankrupt or insolvent; or
(h) if the Borrower from the date of this Agreement will commence, or
conclude prior to the date of this Agreement already commenced,
negotiations with any one or more of its creditors, with a view to a
general readjustment or rescheduling of its indebtedness or makes a
general assignment for the benefit of or a composition with its
creditors; or
(i) if it becomes unlawful for the Borrower to perform any of its
obligations under this Agreement or any of its obligations hereunder
ceases to be valid, binding and enforceable; or
(j) any event or series of events occur which, in the sole opinion of the
Lender, has or could reasonably be expected to have a material adverse
effect on the financial condition of the Borrower;
then and in any such event the Lender shall have the right by notice given to
the Borrower to terminate all or any of the obligations of the Lender under
this Agreement and the Credit Facility shall upon such notice immediately, or
in accordance with such notice, become repayable together with fees and
interest accrued.
In the event that the Lender should exercise its rights under this Clause, the
Borrower shall indemnify the Lender for any losses, costs, premium and
penalties incurred by the Lender.
18. LAW AND JURISDICTION
This Agreement shall be deemed to be made under and shall be construed in
accordance with and governed in all respects by Swedish law and the Borrower
and the Lender hereby irrevocably submits to the jurisdiction of Swedish courts.
<PAGE> 11
11(12)
Notwithstanding the provisions of the preceding paragraph, the Lender reserves
the right to commence proceedings against the Borrower in the courts of the
country where the Borrower is established or domiciled and in the courts of any
other country having jurisdiction in respect thereof.
The Borrower hereby expressly agrees to renounce the right to invoke, wherever
and under what circumstances, any immunity of jurisdiction or enforcement
whatsoever which its status could involve.
19. MISCELLANEOUS
No failure or delay on the part of the Lender to exercise any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise by the Lender of any power or right hereunder preclude any
other or further exercise or the exercise of any other power or right. The
rights and remedies provided herein are cumulative and are not exclusive of any
rights and remedies provided by law.
20. NOTICE
Every notice or demand under this Agreement shall be in writing or given by
telefax. Every notice or demand shall be sent, in case of a letter if to the
Lender to Swedbank (Sparbanken Sverige AB), S-105 34 STOCKHOLM, SWEDEN and if
to Borrower to BT Industries AB, S-595 81 MJOLBY, SWEDEN and in case of a
telefax to the Lender to telefax nr +46 8 791 86 34 and in case of a telefax to
the Borrower to telefax nr +46 142 860 82.
Every notice or demand shall, except so far as otherwise expressly provided by
this Agreement, be deemed to have been received in the case of a telefax
message when dispatched, if received during business hours or, if not, at the
beginning of the following Business Day at the place of receipt, and in the
case of a letter fourteen (14) Business Days after the time of posting by
registered mail, postage prepaid.
21. LANGUAGE
All notices or communication under or in connection with this Agreement shall
be in the English language or if in any other language, accompanied by a
translation into English. In the event of any conflict between the English text
in any other language, the English text shall prevail.
<PAGE> 12
12(12)
--------------------------------
This Agreement has been executed in two counterparts of which the Borrower and
the Lender have taken one each.
SWEDBANK(SPARBANKEN SVERIGE AB (publ))
/s/ /s/
- ---------------- ---------------
BT INDUSTRIES AB
/s/
- ----------------
<PAGE> 1
REVOLVING CREDIT
FACILITY AGREEMENT
USD 400,000,000
DATED 13 JUNE, 1997
BETWEEN
BT INDUSTRIES AB
AS BORROWER
AND
SWEDBANK (SPARBANKEN SVERIGE AB (PUBL))
AS LENDER
<PAGE> 2
2(12)
1. PURPOSE
The Borrower requires a Revolving Credit Facility (the "Facility") up to a total
amount of USD 400,000,000 for financing the Borrower's acquisition of 10,735,171
shares in Raymond Corporation, share options and related transaction costs.
2. DEFINITIONS
In this Agreement, except where the context otherwise requires:
"Acquisition Sub" means a wholly-owned subsidiary of the Borrower being
the vehicle for the acquisition of all the issued and
outstanding shares of Raymond Corporation;
"Advance" means each Advance made or to be made available by
the Lender hereunder to the Borrower;
"Advance Date" means the date upon which each Advance is made
available under this Agreement;
"Agreement" means this Agreement as from time to time amended;
"Business Day" means a day on which lenders and foreign exchange
markets are open for the transaction of business of
the nature required by this Agreement in the place or
places from time to time specified by the Lender;
"Credit Facility" means the aggregate principal amount of all Advances
pursuant to this Agreement and at any time being
outstanding;
"Expiry Date" means the day which is 12 months after the Borrower's
signing of the merger agreement with Raymond
Corporation;
"Interest Payment Date" means the last day of the Interest Period relative to
an Advance;
"Interest Period" means in relation to each Advance a period of 1, 3,
or 6 months or such other periods as may be agreed
between the Borrower and the Lender. Every Interest
period must end before the Expiry Date;
"LIBOR" means, in relation to an Advance denominated in USD,
the rate per annum of the offered quotations for
deposits in USD and for a period equal to the
relevant Interest Period which appears on Reuters
screens FRBD-FRBH, (or through such other information
system or on such other screens replacing that system
or screens respectively) which displays British
<PAGE> 3
3(12)
Bankers Association Interest Settlement Rates for
deposits in USD, at or about 11.00 a.m. London time
two Business days prior to the commencement of each
Interest Period;
"Margin" means 0.675 per cent unit per annum;
"Merger Agreement" means the agreement and plan of merger by and among the
Borrower, the Borrower's wholly owned acquisition
subsidiary and Raymond Corporation entered into no later
than noon US EDT June 18, 1997;
"USD" means the lawful currency, at any relevant time
hereunder, in the United States of America.
In this Agreement headings are for convenience only and wherever relevant
singular includes plural and vice versa.
3. CREDIT FACILITY
The Lender will make available Advances to the Borrower upon the terms and
subject to the conditions hereof up to a total amount of USD 400,000,000.
The Borrower is entitled to prepay on any interest roll-over date the drawings,
all or part of the Facility in a minimum amount of USD 20,000,000 without
penalty provided that 7 Business Days prior written notice has been given to
the Lender.
The Borrower is entitled to cancel any undrawn part of the Facility without
penalty provided that 7 Business Days prior written notice has been given to
the Lender. Any cancelled amount can not be reborrowed.
4. ADVANCE
Each Advance under this Agreement shall be made available by payment from the
Lender to the Borrower upon the Lenders receipt at or before 09.00 a.m. Swedish
time, not less than three Business Days prior to each disbursement, of
irrevocable payment instruction specifying in respect of such Advance (a) the
value date, which much be a Business Day (b) the amount expressed in USD and
which has to be a minimum amount of USD 20,000,000 (c) the Interest Period and
(d) complete payment instructions.
5. CONDITIONS PRECEDENT
The following conditions must be fulfilled before an Advance shall be made
available under this Agreement:
<PAGE> 4
4(12)
(a) the Borrower shall have obtained all permits necessary for the
entering into this Agreement and making the Advances available;
(b) the Lender shall be satisfied that the Borrower's representations
and warranties in Clause 7 below, to be repeated for each Advance, are
true in all material respects;
(c) The Lender shall have received no later than 01.00 p.m. US EDT June 18,
1997 the Borrower's written confirmation that a Merger Agreement have
been entered into followed by a certified copy evidencing the
Borrower's agreed bid for all the shares in Raymond Corporation; and
(d) The Lender shall have received a Deed of Pledge to the full satisfaction
of the Lender concerning each of the shares of the Acquisition Sub
together with the shares.
6. SECURITY
A pledge of all the outstanding shares of the Acquisition Sub to be converted
into fully paid and nonassesable shares of common stock of Raymond Corporation
upon the effective merger of the Acquisition Sub and Raymond Corporation and,
until such effective merger has occurred, 100 per cent of the acquired shares of
Raymond Corporation (including any acquired outstanding options for the
purchase of such shares).
7. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants and the Lender shall be satisfied, that:
(a) the Borrower is duly formed and validly existing under the laws of
Sweden and has full power to carry on its business as it is now being
conducted and that the entering into and performance of this Agreement
by the Borrower is consistent with all the statutes which govern its
activities and has been duly authorised by all necessary action on the
part of the Borrower;
(b) the Borrower has obtained from the relevant authorities all the permits,
consents and authorisations necessary for the entering into and
fulfilling of the obligations under this Agreement;
(c) the individual/s signing this Agreement on behalf of the Borrower was/
were duly authorised to sign;
(d) this Agreement constitutes direct, general, legally valid and binding
obligations of the Borrower enforceable in accordance with its terms
and ranking pari passu with all other unsecured and unsubordinated
outstanding indebtedness of the Borrower except debt which is
preferred by operation of law;
<PAGE> 5
5(12)
(e) the execution of this Agreement does not result in a breach of, or
constitutes a default under, any agreement or other instrument to which
the Borrower is a party or by which it or any of its assets may be
bound or affected;
(f) the execution, delivery and performance of this Agreement will not
violate in any respect any provision of any existing law or of any
regulation or undertaking to which the Borrower is subject or a party;
(g) no litigation, arbitration or administrative proceeding is pending or
threatened against the Borrower, which might result in any material
adverse change in the business or condition (financial or otherwise) of
the Borrower;
(h) no event has occurred which (by giving of notice and/or by lapse of time
or otherwise) would constitute an event of default under this Agreement,
nor is the Borrower in default under any other agreement to which it is
a party or by which it may be bound or otherwise in default of any kind
in respect of any financial commitment or obligation (including
obligations under guarantees) which could have a material adverse effect
on the Borrower's ability to perform its obligations under this
Agreement and nor is the Borrower aware of a fact which (by giving of
notice and/or lapse of item or otherwise) would constitute such a
default;
(i) this Agreement is not liable to any registration stamp or similar tax
otherwise as has been paid or will be paid by the Borrower;
(j) there has been no material adverse change in the financial position of
the Borrower to date from its position as presented to the Lender in
connection with the negotiation of this Agreement, nor does any written
information given by the Borrower in relation to this Credit Facility
contain any misstatement of fact as at the date hereof or omit to state
a fact which would be materially adverse to the interest of the Lender;
and
(k) it has obtained necessary authorisations, approvals, licenses, consents,
exemptions, clearances, filings or registrations required for the
conduct of the business, trade or ordinary activities.
The Borrower represents and warrants that the conditions under this Clause 7
have been fulfilled and shall also be fulfilled in relevant parts as long as
the Borrower has any payment obligations under this Agreement.
8. REPAYMENT
Each Advance, together with accrued interest, shall be repaid on the Expiry Day
or, if such day is not a Business day, on the next following Business Day,
unless that day falls in a new calendar month, in which case it shall be paid
on the preceding Business Day.
<PAGE> 6
6(12)
9. INTEREST
The Borrower shall pay interest on each Advance for the Interest Period
relative thereto in accordance with this Clause 9. Interest on each Advance
shall be paid on the Interest Payment Day relating thereto except that for any
Interest Period in excess of 6 months, accrued interest will be payable after
each 6 months, with interest on the remaining period being paid at the end of
such period.
The rate of interest applicable to each Advance denominated in USD for the
Interest Period relative thereto, shall be the rate per annum determined by the
Lender to be the aggregate of (i) LIBOR relevant to such Advance for such
Interest Period and (ii) the Margin.
Interest will be calculated on the basis of the actual number of days elapsed
and a year of 360 days (365/360).
In the event that the Borrower should fail to pay on the due date any principal
or interest or any other amount due hereunder, the Borrower shall pay interest
on such principal, interest and any other such amount from the due date up to
and including the day when the amount is actually paid calculated at a rate
determined by the Lender to be the higher of 1 per cent unit per annum above (i)
the rate applicable to such overdue amount immediately prior to the due date
and (ii) the rate of interest determined by the lender at which over-night
loans in the respective currency are offered to the Lender in the London
Interbank Money Market at or about 11.00 a.m. London time on each day during
such period in an amount equal to the sum unpaid. Such interest shall be
compounded and be payable on demand.
Without prejudice to the foregoing, the Borrower shall indemnify the Lender for
any costs or expenses which the Lender may sustain or incur as a consequence of
the default in payment by the Borrower.
10. FEES AND EXPENSES
10.1 ARRANGEMENT FEE
The Borrower shall pay an Arrangement fee to the Lender which amounts to 0,125
per cent of the amount of the Facility and payable up-front after signing of
the Merger Agreement. This fee is payable in full whether or not the Borrower
completes the agreed bid on Raymond Corporation.
A fee of SEK 250,000 is payable promptly after the Borrowers signing of this
Agreement and will be deducted from the Arrangement fee if the Borrower becomes
the agreed bidder on Raymond Corporation.
10.2 UTILISATION FEE
The Borrower shall pay a Utilisation fee to the Lender which amounts to 0,05
per cent per month and which is payable on the full amount of the Facility,
commencing at the first
<PAGE> 7
7(12)
drawdown of the Facility and payable until the closing of the Borrower's
planned rights issue which will be used to refinance part of this Facility.
10.3 Initial and special costs
The Borrower shall forthwith on demand pay the Lender the amount of all
reasonable costs and expenses (including legal fees) properly incurred by it in
connection with:
(a) the negotiation, preparation, printing and execution of this Agreement
and any other necessary documents (including legal opinion);
(b) any amendment, waiver, consent or suspension of rights (or any proposal
for any of the foregoing) requested by the Borrower;
(c) travelling expenses;
(d) any other matter, not of an ordinary administrative nature, arising out
of or in connection with this Agreement.
10.4 Enforcement's costs
The Borrower shall forthwith on demand pay to the Lender the amount of all
reasonable costs and expenses (including legal fees) incurred by it in
connection with the enforcement of, or the preservation of, any rights under
this Agreement.
11. PAYMENTS
All payments in favour of the Lender to be made by the Borrower hereunder shall
be made in the currency in which the Advance is denominated (if not otherwise
indicated herein) to the Lender, not later than ll.00 a.m. New York time on the
date upon which the relevant payment is due and shall be made in immediately
available funds or such funds as shall be customary for lenders for the
settlement of international transactions in the respective currencies.
All amounts payable by the Borrower under this Agreement, whether in respect of
principal or interest or otherwise, shall be paid in full without any deduction
on account of any present or future taxes, levies, duties, charges or other
imposts or withholding of any nature imposed or levied by any authority in
Sweden save for increased costs arising from an increase of the current BIS
capital adequacy requirements. In the event of the Borrower being compelled by
law or other regulation to make any such deduction or withholding from any
payment to the Lender, the Borrower shall - on the due date - pay such
additional amounts as may be necessary to ensure that the aggregate of the net
amounts received by the Lender after such deduction or withholding equals the
amount which would have been received in the absence of any such deduction or
withholding.
All taxes required by law to be deducted or withheld by the Borrower from any
amounts paid or payable under this Agreement, shall be paid when due and the
Borrower shall, as
<PAGE> 8
8(12)
soon as reasonably practicable after the payment is made, deliver to the Lender
all relevant tax receipt - or similar evidence - or copies thereof that
the payment has been duly remitted to the appropriate authority.
If the Lender receives a payment insufficient to discharge all the amounts then
due and payable by the Borrower it may be applied by the Lender in its
discretion, upon informing the Borrower, towards amounts due and unpaid of
whatever kind owed by the Borrower under this Agreement.
12. UNCONDITIONAL PAYMENTS
The liability of the Borrower to make payments or to discharge any other debts
under this Agreement is in no way conditional upon performance of any contract
by any other party and it shall not be affected in any way by reason of any
claim, which the Borrower might have or might consider that it has against any
other party or the Lender by way of setoff or counterclaim or otherwise.
13. ACCOUNTS
The Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the amounts from time to time lent by, owing to and paid to
it pursuant to this Agreement and such account or accounts shall constitute (in
the absence of manifest error) prima facie evidence of such amounts. The Lender
shall regularly provide the Borrower with statements of accounts.
14. TERMINATION
Notwithstanding the fact that this Agreement has terminated the provisions in
this Agreement (save for paragraph 3) will remain in full force and effect
until the Credit Facility is repaid to the full satisfaction of the Lender.
15. ASSIGNMENT
The Borrower may not assign its rights and obligations under this Agreement
unless that the Lender has given its prior written consent.
The Lender may at any time assign all or any part of its rights and/or
obligations under this Agreement to any other lender or financial institution
affiliated with the Lender and, with the prior written consent of the Borrower,
which consent shall not be unreasonably withheld or delayed, to any other party.
Upon an assignment made in accordance with this Clause the Borrower or the
Lender, as the case may be, shall on demand by the other party execute such
documents and all such acts as the Lender may request to give effect to the
assignment.
<PAGE> 9
9(12)
All references in this Agreement to the Lender shall after an assignment being
made hereunder mutatis mutandis apply also to the assignee. After an assignment
has been made hereunder by the Lender, the assignee shall be represented by the
Lender as agent until further notice from the assignee. If an assignment will be
made hereunder by the Borrower, then the Lender and the assignee shall agree
about the representation of the assignee.
16. FORCE MAJEURE
The Lender shall not be held responsible for any loss or damage resulting from
a legal enactment (Swedish or foreign), the intervention of a public authority
(Swedish or foreign), an act of war, strike, blockade, boycott, lockout or any
other similar circumstances. The reservations in respect of strikes, blockades,
boycotts and lockouts shall apply even if the Lender itself takes such measures
or is the subject of such measures.
Any loss or damage that has occurred in other circumstances shall be
indemnified by the Lender only to the extent that such loss or damage has been
caused by gross negligence or wilful misconduct on the part of the Lender. The
Lender shall in no case be responsible for indirect losses or damages.
If an impediment as set out above exists with respect to any of the Lender's
obligations, then the Lender is entitled to postpone the performance of
such obligation until such impediment no longer exists.
17. UNDERTAKINGS
The Borrower hereby undertakes with the Lender that as long as any moneys are
outstanding under this Agreement:
(a) it will promptly inform the Lender of any occurrence of which it becomes
aware which by giving of notice and/or by lapse of time or otherwise would
constitute an event of default under this Agreement or any occurrence of
which it becomes aware which in its reasonable opinion, might otherwise
adversely affect its ability to perform its obligations under this
Agreement;
(b) it will obtain or procure the obtaining of every consent and license and
do all other acts and things as may from time to time be necessary or
desirable for the due performance of its obligations under this
Agreement;
(c) it will not create or have outstanding any indebtedness secured on or over
its assets or revenues, whether now owned or hereinafter existing, except
for liens, security interests, encumbrances, mortgages and pledges arising
solely by operation of law and in the ordinary course of its operations;
(d) it will maintain insurance cover in relation to its business and assets of
a type and in an amount as is usual for prudent companies carrying on a
business such as that carried on by the Borrower in the place of its
operations;
<PAGE> 10
10(12)
(e) it will provide the Lender, as soon as available but in any event not
later than 180 days after the close of its financial year, with its
audited unconsolidated and consolidated financial statements
(including balance sheets and profit and loss accounts) and supply the
Lender with copies of its audited (where required by law, or if not,
unaudited) interim report(s) as soon as available but in any event not
later than 90 days after the end of the relevant period; and
(f) it will procure that the Acquisition Sub will not (i) sell or otherwise
dispose of its shares of Raymond Corporation (otherwise than
contemplated in the Merger Agreement) or (ii) create any pledge on or
over the shares of Raymond Corporation (otherwise than contemplated in
this Agreement).
18. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) the Borrower fails to repay on the due date any Advance under this
Agreement or any interest or other amount payable by the Borrower
under this Agreement; or
(b) the Borrower defaults under any other provision of this Agreement and
such default continues for thirty (30) days after receipt by the
Borrower of notice of such default from the Lender; or
(c) any indebtedness of the Borrower other than the indebtedness created
hereunder becomes due and payable prior to the stated maturity thereof
resulting from a default thereunder, or if such indebtedness is not paid
at the maturity thereof, or if payable on demand such indebtedness is
not paid, when demanded, or any guarantee or indebtedness given by the
Borrower in relation to a third party is not honoured when due and
called, or if the Borrower is otherwise in breach of, or in default
under, any agreement pursuant to which such indebtedness was incurred
and the occurrence of such event or events is reasonably considered by
the Lender to have a material adverse effect on the ability of the
Borrower to perform its obligations hereunder; or
(d) necessary approval for the Borrower in connection with this Agreement
or the transactions contemplated therein is revoked, rescinded,
suspended or otherwise limited in effect; or
(e) any representation or warranty made by the Borrower in this Agreement
proves to have been incorrect in any material respect or becomes
materially incorrect; or
(f) any order is made by any competent court or resolution passed by the
Borrower for the appointment of a liquidator, receiver or trustee of
the Borrower or of all or a substantial part of its assets, except for
the purpose of amalgamation or reorganisation not involving insolvency
the terms of which shall have been previously approved by the Lender; or
<PAGE> 11
11(12)
(g) the Borrower is unable to, or admits inability to pay its debts as they
fall due, or is adjudicated or found bankrupt or insolvent; or
(h) if the Borrower from the date of this Agreement will commence, or
conclude prior to the date of this Agreement already commenced,
negotiations with any one or more of its creditors, with a view to a
general readjustment or rescheduling of its indebtedness or makes a
general assignment for the benefit of or a composition with its
creditors; or
(i) if it becomes unlawful for the Borrower to perform any of its
obligations under this Agreement or any of its obligations hereunder
ceases to be valid, binding and enforceable; or
(j) any event or series of events occur which, in the sole opinion of the
Lender, has or could reasonably be expected to have a material adverse
effect on the financial condition of the Borrower.
then and in any such event the Lender shall have the right by notice given to
the Borrower to terminate all or any of the obligations of the Lender under
this Agreement and the Credit Facility shall upon such notice immediately, or
in accordance with such notice, become repayable together with fees and
interest accrued.
In the event that the Lender should exercise its rights under this Clause, the
Borrower shall indemnify the Lender for any losses, costs, premium and
penalties incurred by the Lender.
19. LAW AND JURISDICTION
This Agreement shall be deemed to be made under and shall be construed in
accordance with and governed in all respects by Swedish law and the Borrower
and the Lender hereby irrevocably submits to the jurisdiction of Swedish courts.
Notwithstanding the provisions of the preceding paragraph, the Lender reserves
the right to commence proceedings against the Borrower in the courts of the
country where the Borrower is established or domiciled and in the courts of any
other country having jurisdiction in respect thereof.
The Borrower hereby expressly agrees to renounce the right to invoke, wherever
and under what circumstances, any immunity of jurisdiction or enforcement
whatsoever which its status could involve.
20. MISCELLANEOUS
No failure or delay on the part of the Lender to exercise any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise by the Lender of any power or right hereunder preclude any
other or further exercise or the
<PAGE> 12
12(12)
exercise of any other power or right. The rights and remedies provided herein
are cumulative and are not exclusive of any rights and remedies provided by law.
21. NOTICE
Every notice or demand under this Agreement shall be in writing or given by
telefax. Every notice or demand shall be sent, in case of a letter if to the
Lender to Swedbank (Sparbanken Sverige AB), S-105 34 STOCKHOLM, SWEDEN and if to
Borrower to BT Industries AB, S-595 81 MJOLBY, SWEDEN and in case of a telefax
to the Lender to telefax nr +46 8 791 86 34 and in case of a telefax to the
Borrower to telefax nr +46 142 860 82.
Every notice or demand shall, except so far as otherwise expressly provided by
this Agreement, be deemed to have been received in the case of a telefax
message when dispatched, if received during business hours or, if not, at the
beginning of the following Business Day at the place of receipt, and in the
case of a letter fourteen (14) Business Days after the time of posting by
registered mail, postage prepaid.
22. LANGUAGE
All notices or communication under or in connection with this Agreement shall
be in the English language or if in any other language, accompanied by a
translation into English. In the event of any conflict between the English text
in any other language, the English text shall prevail.
-------------------------
This Agreement has been executed in two counterparts of which the Borrower and
the Lender have taken one each.
SWEDBANK (SPARBANKEN SVERIGE AB (publ))
/s/ /s/
- -------------------- -------------------
BT INDUSTRIES AB
/s/
- --------------------
<PAGE> 1
_______________________________________________________________________________
The Raymond Corporation Telephone 607-656-2311
Corporate Headquarters Fax 607-656-9005
Greene, New York 13778-0130
_______________________________________________________________________________
BT Industries AB By Facsimile & Federal Express
S-595 81 Mjolby
Sweden
April 4, 1997
Attn: Mr. Carl-Erik Ridderstrale
President & CEO
In connection with your consideration of a possible transaction with
The Raymond Corporation and its subsidiaries or affiliates (collectively, with
such subsidiaries or affiliates, the "Company"), the Company is prepared to
make available to you certain information concerning the business, financial
condition, operations, prospects, assets and liabilities of the Company. As a
condition to such information being furnished to you and your directors,
officers, employees, agents or advisors (including, without limitation,
attorneys, accountants, consultants, bankers and financial advisors)
(collectively, "Representatives"), you agree to treat any information
concerning the Company (whether prepared by the Company, its advisors or
otherwise and irrespective of the form of communication) which has been or will
be furnished to you or to your Representatives by or on behalf of the Company
(herein collectively referred to as the "Evaluation Material") in accordance
with the provisions of this letter agreement, and to take or abstain from
taking certain other actions hereinafter set forth.
The term "Evaluation Material" shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents or materials
prepared by you or your Representatives which contain, reflect or are based
upon, in whole or in part, the information furnished to you or your
Representatives pursuant hereto. The term "Evaluation Material" does not include
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by you or your Representatives in breach of this
agreement, (ii) was within your possession prior to its being furnished to you
by or on behalf of the Company pursuant hereto, provided that the source of such
information was not known by you or any of your Representatives, to be bound by
a confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company or any other party with respect to
such information or (iii) becomes available to you on a non-confidential basis
from a source other than the Company or any of its Representatives, provided
that such source is not bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the Company or
any other party with respect to such information.
<PAGE> 2
- -------------------------------------------------------------------------------
Mr. Carl-Erik Ridderstrale
April 4, 1997
Page 2
- -------------------------------------------------------------------------------
You hereby agree that you and your Representatives shall use the Evaluation
Material solely for the purpose of evaluating a possible transaction between the
Company and you, that the Evaluation Material will be kept confidential by you
and your Representatives and that you and your Representatives will not disclose
any of the Evaluation Material in any manner whatsoever; provided, however, that
(i) you may make any disclosure of such information to which the Company gives
its prior written consent and (ii) any of such information may be disclosed to
your Representatives and financing sources and/or any person with whom you may
jointly make a transaction proposal who need to know such information for the
sole purpose of evaluating a possible transaction with the Company, who agree to
keep such information confidential in accordance with this letter agreement and
who are provided with a copy of this letter agreement and agree to be bound by
the terms hereof to the same extent as if they were parties hereto. In any
event, you shall be responsible for any breach of this letter agreement by any
of your Representatives, or financing sources or any person with whom you may
jointly make a transaction proposal, and you agree, at your sole expense, to
take all reasonable measures (including but not limited to court proceedings) to
restrain your Representatives from prohibited or unauthorized disclosure or use
of the Evaluation Material.
In addition, you agree that, without the prior written consent of the
Company, you and your Representatives will not disclose to any other person the
fact that the Evaluation Material has been made available to you, that
discussions or negotiations are taking place concerning a possible transaction
involving the Company or any of the terms, conditions or other facts with
respect thereto (including the status thereof), unless in the written opinion of
your counsel such disclosure is required by law and then only with as much
prior written notice to the Company as is practical under the circumstances. The
term "person" as used in this letter agreement shall be broadly interpreted to
include any corporation, partnership, group, individual or other entity.
You further agree that, without the prior consent of Lehman Brothers, all
communications regarding the proposed transaction, requests for additional
information, and discussions or questions regarding procedures, will be
submitted or directed only to Lehman Brothers and not to the Company or any of
its affiliates or any of their respective directors, officers or employees.
In the event that you or any of your Representatives are requested or
required (by deposition, interrogatories, requests for information or documents
in legal proceedings, subpoena, civil investigative demand or other similar
process) to disclose any of the Evaluation Material, you shall provide the
Company with prompt written notice of any such request or requirement so that
the Company may seek a protective order or other appropriate remedy
<PAGE> 3
- -------------------------------------------------------------------------------
Mr. Carl-Erik Ridderstrale
April 4, 1997
Page 3
- -------------------------------------------------------------------------------
and/or waive compliance with the provisions of this letter agreement. If, in
the absence of a protective order or other remedy or the receipt of a waiver by
the Company, you or any of your Representatives are nonetheless, in the written
opinion of your counsel, legally compelled to disclose Evaluation Material to
any tribunal or else stand liable for contempt or suffer other censure or
penalty, you or your Representative may, without liability hereunder, disclose
to such tribunal only that portion of the Evaluation Material which such
counsel advises you is legally required to be disclosed, provided that you
exercise your best efforts to preserve the confidentiality of the Evaluation
Material, including, without limitation, by cooperating with the Company to
obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Evaluation Material by such
tribunal.
If you decide that you do not wish to proceed with a transaction with the
Company, you will promptly inform the Company of that decision. In that case,
or at any time upon the request of the Company for any reason or for no reason,
you will promptly deliver to the Company all Evaluation Material (and all
copies thereof) furnished to you or your Representatives by or on behalf of the
Company pursuant hereto. In the event of such a decision or request, all other
Evaluation Material prepared by you or your Representatives shall be destroyed
and no copy thereof shall be retained and you agree to certify in writing that
such destruction has occurred. Notwithstanding the return or destruction of the
Evaluation Material, you and your Representatives will continue to be bound by
your obligations of confidentiality and other obligations hereunder.
You understand and acknowledge that neither the Company nor any of its
Representatives (including without limitation Lehman Brothers Inc.) make any
representation or warranty, express or implied, as to the accuracy or
completeness of the Evaluation Material. You agree that neither the Company nor
any of its Representatives (including without limitation Lehman
Brothers Inc.) shall have any liability to you or to any of your
Representatives relating to or resulting from the use of the Evaluation
Material. Only those representations or warranties which are made in a final
definitive agreement regarding the transactions contemplated hereby, when, as
and if executed, and subject to such limitations and restrictions as may be
specified therein, will have any legal effect.
In consideration of the Evaluation Material being furnished to you, you
hereby agree that, for a period of one year from the date hereof, neither you
nor any of your affiliates will solicit to employ or employ any of the current
officers or employees of the Company so long as they are employed by the
Company without obtaining the prior written consent of the Company.
<PAGE> 4
- ----------------------------------------------------------------------------
Mr. Carl-Erik Ridderstrale
April 4, 1997
Page 4
- ----------------------------------------------------------------------------
In consideration of the Evaluation Material being furnished to you,
you hereby further agree that, without the prior written consent of the Board
of Directors of the Company, for a period of one year from the date hereof,
neither you nor any of your affiliates (as such term is defined in Rule 12b-2
of the Securities Exchange Act of 1934, as amended), acting alone or as part of
a group, will acquire or offer or agree to acquire, directly or indirectly, by
purchase or otherwise, any voting securities (or direct or indirect rights or
options to acquire any voting securities) of the Company, or otherwise seek to
influence or control, in any manner whatsoever, the management or policies of
the Company.
You agree that unless and until a final definitive agreement regarding
a transaction between the Company and you has been executed and delivered,
neither the Company nor you will be under any legal obligation of any kind
whatsoever with respect to such a transaction by virtue of this letter
agreement except for the rights and obligations specifically agreed to herein.
You further acknowledge and agree that the Company reserves the right, in its
sole discretion, to reject any and all proposals made by you or any of your
Representatives with regard to a transaction between the Company and you, and
to terminate discussions and negotiations with you at any time.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
It is further understood and agreed that any breach of this letter
agreement by you or any of your Representatives would result in irreparable
harm to the Company, that money damages would not be a sufficient remedy for
any such breach of this letter agreement and that the Company shall be entitled
to equitable relief, including injunction and specific performance, as a remedy
for any such breach. You further agree to waive, and to use your best efforts
to cause your Representatives to waive, any requirement for the securing or
posting of any bond in connection with any such remedy. Such remedies shall not
be deemed to be the exclusive remedies for a breach by you of this letter
agreement but shall be in addition to all other remedies available at law or
equity to the Company. In the event of litigation relating to this letter
agreement, if a court of competent jurisdiction determines that you or any of
your Representatives have breached this letter agreement, then you shall be
liable and pay to the Company the reasonable legal fees incurred by the Company
in connection with such litigation, including any appeal therefrom.
<PAGE> 5
- ----------------------------------------------------------------------------
Mr. Carl-Erik Ridderstrale
April 4, 1997
Page 5
- ----------------------------------------------------------------------------
This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York and may not be amended or terminated
except pursuant to a written agreement duly executed by you and the Company.
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement between you and the Company.
Very truly yours,
/s/ Paul J. Sternberg
---------------------
Paul J. Sternberg
Vice President, General Counsel
and Secretary
Accepted and agreed as of
the date first written above:
By:
---------------------------
Name:
Title:
<PAGE> 1
[EXECUTION COPY]
================================================================================
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BT INDUSTRIES AB,
LIFT ACQUISITION COMPANY, INC.
AND
THE RAYMOND CORPORATION
Dated as of June 16, 1997
================================================================================
<PAGE> 2
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I THE OFFER............................................................. 1
1.01 The Offer..................................................................... 1
1.02 Company Actions............................................................... 3
1.03 Composition of the Board of Directors......................................... 4
ARTICLE II THE MERGER AND RELATED MATTERS........................................ 5
2.01 The Merger.................................................................... 5
2.02 Conversion of Stock........................................................... 6
2.03 Dissenting Stock.............................................................. 6
2.04 Surrender of Certificates..................................................... 7
2.05 Payment ...................................................................... 8
2.06 No Further Rights of Transfers................................................ 8
2.07 Stock Option and Other Plans.................................................. 9
2.08 Certificate of Incorporation of the Surviving Corporation..................... 10
2.09 By-Laws of the Surviving Corporation.......................................... 10
2.10 Directors and Officers of the Surviving Corporation........................... 10
2.11 Closing ...................................................................... 10
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................ 10
3.01 Representations and Warranties of the Company................................. 10
(a) Due Organization, Good Standing and Corporate Power.............. 11
(b) Authorization and Validity of Agreement.......................... 11
(c) Capitalization................................................... 12
(d) Consents and Approvals; No Violations............................ 13
(e) Company Reports and Financial Statements......................... 14
(f) Absence of Certain Changes....................................... 14
(g) Title to Properties; Encumbrances................................ 15
(h) Compliance with Laws............................................. 15
(i) Litigation....................................................... 15
(j) Employee Benefit Plans........................................... 16
(k) Employment Relations and Agreements.............................. 18
(l) Taxes ....................................................... 18
(m) Liabilities...................................................... 20
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C>
(n) Intellectual Properties.......................................... 20
(o) Proxy Statement, Schedule l4D-9 and Schedule l4D-1............... 22
(p) Broker's or Finder's Fee......................................... 22
(q) Environmental Laws and Regulations............................... 23
(r) State Takeover Statutes; Charter Provisions...................... 24
(s) Voting Requirements.............................................. 24
(t) Rights Agreement................................................. 24
(u) Opinion of Financial Advisor..................................... 25
3.02 Representations and Warranties of Parent and Sub.............................. 25
(a) Due Organization; Good Standing and Corporate Power.............. 25
(b) Authorization and Validity of Agreement.......................... 25
(c) Consents and Approvals; No Violations............................ 26
(d) Offer Documents, Schedule l4D-9 and Proxy Statement.............. 26
(e) Broker's or Finder's Fee......................................... 27
(f) Financing ....................................................... 27
ARTICLE IV TRANSACTIONS PRIOR TO CLOSING DATE.................................... 27
4.01 Access to Information Concerning Properties and Records....................... 27
4.02 Confidentiality............................................................... 28
4.03 Conduct of the Business of the Company Pending the Closing Date............... 28
4.04 Proxy Statement............................................................... 30
4.05 Shareholder Approval.......................................................... 30
4.06 Reasonable Best Efforts....................................................... 31
4.07 No Solicitation of Other Offers............................................... 31
4.09 HSR Act ...................................................................... 33
4.10 Exon-Florio................................................................... 35
4.11 Employee Benefits............................................................. 35
4.13 Rights Agreement.............................................................. 37
4.14. Public Announcements......................................................... 37
4.15 Transfer Tax.................................................................. 37
ARTICLE V CONDITIONS PRECEDENT TO MERGER........................................ 38
5.01 Conditions Precedent to Obligations of Parent, Sub and the Company............ 38
(a) Approval of Company's Shareholders............................... 38
(b) HSR Act ....................................................... 38
(c) Exon-Florio...................................................... 38
(d) Injunction....................................................... 38
(e) Statutes ....................................................... 39
(f) Minimum Condition................................................ 39
ARTICLE VI TERMINATION AND ABANDONMENT........................................... 39
6.01 Termination................................................................... 39
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C>
6.02 Effect of Termination......................................................... 41
ARTICLE VII MISCELLANEOUS......................................................... 41
7.01 Fees and Expenses............................................................. 41
7.02 Representations and Warranties................................................ 42
7.03 Extension; Waiver............................................................. 42
7.04 Notices ...................................................................... 42
7.05 Entire Agreement.............................................................. 43
7.06 Binding Effect; Benefit; Assignment........................................... 44
7.07 Amendment and Modification.................................................... 44
7.08 Further Actions............................................................... 44
7.09 Headings...................................................................... 44
7.10 Counterparts.................................................................. 44
7.11 Applicable Law................................................................ 44
7.12 Severability.................................................................. 44
7.13 Certain Definitions........................................................... 45
7.14 Parent Guarantee.............................................................. 45
7.15 Submission to Jurisdiction.................................................... 45
ANNEX A...................................................................................A-1
</TABLE>
(iii)
<PAGE> 5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 16, 1997 (this
"Agreement"), by and among BT INDUSTRIES, INC., a corporation incorporated under
the laws of Sweden ("Parent"), LIFT ACQUISITION COMPANY, INC., a New York
corporation and a direct or indirect wholly-owned subsidiary of Parent ("Sub"),
and THE RAYMOND CORPORATION, a New York corporation (the "Company").
WHEREAS, the respective Boards of Directors of Parent, Sub and the
Company have approved the acquisition of the Company by Parent;
WHEREAS, in contemplation thereof it is proposed that Sub will make a
tender offer (the "Offer") to purchase all the issued and outstanding shares of
common stock, $1.50 par value, of the Company ("Common Stock"), subject to the
terms and conditions of this Agreement, at a price of $33.00 per share net to
the seller in cash (the "Offer Price");
WHEREAS, to complete such acquisition, the respective Boards of
Directors of Parent, Sub and the Company, have approved the merger of the
Company into Sub (the "Merger"), pursuant to and subject to the terms and
conditions of this Agreement; and
WHEREAS, the Directors of the Company have unanimously determined that
each of the Offer and the Merger are fair to, and in the best interests of, the
holders of Common Stock, approved the Offer and the Merger and recommended the
acceptance of the Offer and approval and adoption of this Agreement by the
shareholders of the Company; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
THE OFFER
1.01 The Offer. (a) Provided that this Agreement shall not have been
terminated in accordance with Article VI hereof and so long as none of the
events set forth in Annex A hereto (the "Tender Offer Conditions") shall have
occurred and are continuing, as promptly as practicable, but in no event later
than the fifth business day after the date of this Agreement, Parent and Sub
shall, and Parent shall cause Sub to, commence the Offer at the Offer Price. The
obligations of Sub to accept for payment and to pay for any shares of
<PAGE> 6
Common Stock tendered shall be subject only to the Tender Offer Conditions, any
of which may be waived by Parent or Sub in their sole discretion; provided,
however, that Sub shall not waive the Minimum Condition (as defined in Annex A)
without the prior written consent of the Company. The Tender Offer Conditions
are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub
regardless of the circumstances giving rise to any such Tender Offer Conditions
or, except as expressly set forth herein, may be waived by Parent and Sub in
whole or in part. Parent and Sub expressly reserve the right to modify the terms
of the Offer, including without limitation to extend the Offer beyond any
scheduled expiration date; provided; however, without the prior written consent
of the Company, Sub shall not (i) reduce the number of shares of Common Stock to
be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to
the Tender Offer Conditions, (iv) change the form of consideration payable in
the Offer or (v) make any other change in the terms of the Offer which is
materially adverse to the holders of the Common Stock. Upon the terms and
subject to the conditions of the Offer, Sub shall purchase all shares of Common
Stock which are validly tendered on or prior to the expiration of the Offer and
not withdrawn.
(b) As soon as reasonably practicable on the date the Offer is
commenced, Parent and Sub shall file, and Parent shall cause Sub to file, with
the Securities and Exchange Commission (the "Commission") a Tender Offer
Statement on Schedule 14D-1 (together with all amendments and supplements
thereto, the "Schedule 14D-1") with respect to the Offer. The Schedule 14D-1
shall contain (included as an exhibit) or shall incorporate by reference an
offer to purchase (the "Offer to Purchase") and a form of the related letter of
transmittal (the "Letter of Transmittal"), as well as all other information and
exhibits required by law (which Schedule 14D-1, Offer to Purchase, Letter of
Transmittal and such other information and exhibits, together with any
supplements or amendments thereto, are referred to herein collectively as the
"Offer Documents"). The Schedule 14D-1 will comply in all material respects with
the provisions of applicable federal securities laws and, on the date filed with
the Commission and the date first published, sent or given to the Company's
shareholders, 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
are made, not misleading, except that no representation is made by Parent or Sub
with respect to any information supplied by the Company in writing for inclusion
in the Schedule 14D-1. Each of Parent and Sub agrees promptly to correct any
information provided by it for use in the Offer Documents that shall be, or have
become, false or misleading in any material respect, and Parent and Sub further
agree to take all steps necessary to cause the Schedule 14D-1 as so corrected
to be filed with the Commission and the other Offer Documents as so corrected to
be disseminated to holders of Common Stock, in each case as and to the extent
required by applicable federal securities laws. Each of Parent and Sub agrees to
provide the Company and its counsel with copies of any written comments Parent
and Sub or their counsel may receive from the Commission or its staff with
respect to the Offer Documents promptly
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<PAGE> 7
after the receipt of such comments and shall provide the Company and its counsel
an opportunity to participate, including by participating with Parent and its
counsel in any discussions with the Commission or its staff, in the response of
Parent or Sub to such comments.
1.02 Company Actions. The Company hereby consents to the Offer and the
Merger and represents that (a) its Board of Directors (at a meeting duly called
and held) has (i) determined by the unanimous vote of the Directors that each of
the Offer and the Merger is fair to, and in the best interests of, the holders
of Common Stock, (ii) approved the Offer and the Merger and adopted this
Agreement in accordance with the provisions of the New York Business Corporation
Law, (iii) recommended acceptance of the Offer and approval and adoption of this
Agreement by the shareholders of the Company, (iv) taken all other applicable
action necessary to render (x) Section 912 of the New York Business Corporation
Law and other state takeover statutes, (y) Article SEVENTH of the Company's
Restated and Amended Certificate of Incorporation and (z) the Rights Agreement
dated as of March 1, 1997 (the "Rights Agreement") inapplicable to the Offer and
the Merger; and (b) Lehman Brothers has delivered to the Board of Directors of
the Company its opinion that the consideration to be received by the holders of
Common Stock, other than Parent and Sub, pursuant to the Offer and the Merger is
fair to such holders of Common Stock from a financial point of view, subject to
the assumptions and qualifications contained in such opinion. The Company shall
file with the Commission, as soon as practicable on the date of the commencement
of the Offer, a Solicitation/Recommendation Statement on Schedule 14D-9,
(together with all amendments and supplements thereto, the "Schedule l4D-9"),
containing the recommendations referred to in clause (a) of the preceding
sentence and shall disseminate the Schedule 14D-9 as required by Rule 14d-9
under the Exchange Act. Parent and Sub and their counsel shall be given the
opportunity to review and comment upon the Schedule l4D-9 prior to its filing
with the Commission. The Schedule 14D-9 will comply in all material respects
with the provisions of applicable federal securities laws and, on the date filed
with the Commission and on the date first published, sent or given to the
Company's shareholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that no representation is
made by the Company with respect to information supplied by Parent or Sub in
writing for inclusion in the Schedule 14D-9. The Company agrees to provide
Parent and its counsel with any comments the Company or its counsel may receive
from the Commission or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments and shall provide Parent and its counsel an
opportunity to participate, including by participating with the Company and its
counsel in any discussions with the Commission or its staff, in the response of
the Company to such comments. In connection with the Offer, the Company will
promptly furnish Sub with mailing labels, security position listings and any
available listing or computer list containing the names and
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<PAGE> 8
addresses of the record holders of the Common Stock as of the most recent
practicable date and shall furnish Sub with such additional information
(including, but not limited to, updated lists of holders of Common Stock and
their addresses, mailing labels and lists of security positions) and such other
assistance as Sub or its agents may reasonably request in communicating the
Offer to the Company's shareholders. Subject to the requirements of applicable
law, and except for such steps as are necessary to disseminate the Offer
Documents and any other documents necessary to consummate the Merger, Parent and
its affiliates and associates shall hold in confidence the information contained
in any such labels, listings and files, will use such information only in
connection with the Offer and the Merger, and, if this Agreement is terminated,
shall deliver to the Company all copies of such information in their possession.
The Company has been advised that each of its directors and executive officers
intends to tender pursuant to the Offer all shares of Common Stock owned of
record and beneficially by him or her except to the extent such tender would
violate applicable securities laws.
1.03 Composition of the Board of Directors. (a) Promptly upon the
acceptance for payment of, and payment by Sub in accordance with the Offer for,
shares of Common Stock equal to at least two-thirds of the outstanding shares of
Common Stock, pursuant to the Offer, Sub shall be entitled to designate up to
such number of directors on the Board of Directors of the Company, rounded up to
the next whole number, as will give Sub, subject to compliance with Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation
on such Board of Directors equal to at least that number of directors which
equals the product of the total number of directors on the Board of Directors
(giving effect to the directors elected pursuant to this sentence) multiplied by
a fraction, the numerator of which shall be the number of shares of Common Stock
beneficially owned by Sub and Parent and the denominator of which shall be the
number of shares of Common Stock then outstanding, and the Company and its Board
of Directors shall, at such time, take any and all such action needed to cause
Sub's designees to be appointed to the Company's Board of Directors (including
using its reasonable best efforts to cause directors to resign). Subject to
applicable law, the Company shall take all action requested by Parent which is
reasonably necessary to effect any such election, including mailing to its
shareholders the Information Statement containing the information required by
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the
Company agrees to make such mailing with the mailing of the Schedule 14D-9 so
long as Sub shall have provided to the Company on a timely basis all information
required to be included in the Information Statement with respect to Sub's
designees. Parent or Sub will be solely responsible for any information with
respect to either of them and their nominees, officers, directors and affiliates
required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company
will increase the size of the Company's Board of Directors (subject to the
limitations set forth in the Company's Restated and Amended Certificate of
Incorporation and By-Laws), or use its reasonable efforts to secure the
resignation of directors, or both, as is necessary to permit Sub's designees to
be elected to the Company's
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<PAGE> 9
Board of Directors. At the Effective Time (as defined in Section 2.01(a)
hereof), the Company, if so requested, will use its reasonable efforts to cause
persons designated by Sub to constitute the same percentage of each committee of
such board, each board of directors of each Subsidiary and each committee of
each such board (in each case to the extent of the Company's ability to elect
such persons).
(b) Following the election or appointment of Sub's designees pursuant
to this Section 1.03 and prior to the Effective Time (as hereinafter defined),
any amendment or termination of this Agreement or the Restated and Amended
Certificate of Incorporation or By-Laws of the Company, any termination of this
Agreement by the Company, any extension by the Company of the time for the
performance of any of the obligations or other acts of Parent and Sub or waiver
of any of the Company's rights hereunder, and any other consent or action by the
Board of Directors hereunder, will require the concurrence of a majority (which
shall be at least two) of the directors of the Company then in office who are
directors on the date hereof and who voted to approve this Agreement or are
designated by a majority of the directors of the Company who are directors on
the date hereof and who voted to approve this Agreement.
ARTICLE II
THE MERGER AND RELATED MATTERS
2.01 The Merger. (a) Subject to the terms and conditions of this
Agreement, at the time of the Closing (as defined in Section 2.11 hereof), a
certificate of merger (the "Certificate of Merger") shall be duly prepared,
executed and acknowledged by Sub and the Company in accordance with the New York
Business Corporation Law and shall be filed on the Closing Date (as defined in
Section 2.11 hereof). The Merger shall become effective upon the filing of the
Certificate of Merger with the Secretary of State of the State of New York in
accordance with the provisions and requirements of the New York Business
Corporation Law. The date and time when the Merger shall become effective is
hereinafter referred to as the "Effective Time."
(b) At the Effective Time, Sub shall be merged with and into the
Company and the separate corporate existence of Sub shall cease, and the Company
shall continue as the surviving corporation under the laws of the State of New
York under the name of "The Raymond Corporation" (the "Surviving Corporation").
(c) From and after the Effective Time, the Merger shall have the
effects set forth in the applicable provisions of the New York Business
Corporation Law.
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<PAGE> 10
2.02 Conversion of Stock. At the Effective Time:
(a) Each share of Common Stock then issued and outstanding (other than
(i) any shares of Common Stock which are held by any Subsidiary or in the
treasury of the Company, or which are held, directly or indirectly, by
Parent or any direct or indirect subsidiary of Parent (including Sub), all
of which shall be cancelled and none of which shall receive any payment
with respect thereto and (ii) shares of Common Stock held by Dissenting
Shareholders (as defined in Section 2.03 hereof)) shall, by virtue of the
Merger and without any action on the part of Parent, Sub, the Company or
the holder thereof, be cancelled and converted into and represent the right
to receive an amount in cash, without interest, equal to the price paid for
each share of Common Stock pursuant to the Offer (the "Merger
Consideration"); and
(b) Each share of common stock, par value $0.01 per share, of Sub then
issued and outstanding shall, by virtue of the Merger and without any
action on the part of Parent, Sub, the Company or the holder thereof,
become one fully paid and nonassessable share of common stock, par value
$0.01 per share, of the Surviving Corporation.
2.03 Dissenting Stock. Notwithstanding anything in this Agreement to
the contrary but only to the extent required by New York Business Corporation
Law, shares of Common Stock that are issued and outstanding immediately prior to
the Effective Time and are held by holders of Common Stock who comply with all
the provisions of New York law concerning the right of holders of Common Stock
to dissent from the Merger and require appraisal of their shares of Common Stock
("Dissenting Shareholders") shall not be converted into the right to receive the
Merger Consideration but shall become the right to receive such consideration as
may be determined to be due such Dissenting Shareholder pursuant to the law of
the State of New York; provided, however, that (i) if any Dissenting Shareholder
shall subsequently deliver a written withdrawal of his or her demand for
appraisal (with the written approval of the Surviving Corporation, if such
withdrawal is not tendered within 60 days after the Effective Time), or (ii) if
any Dissenting Shareholder fails to establish and perfect his or her entitlement
to appraisal rights as provided by applicable law, then such Dissenting
Shareholder or Shareholders, as the case may be, shall forfeit the right to
appraisal of such shares and such shares shall thereupon be cancelled and be
deemed to have been converted into the right to receive, as of the Effective
Time, the Merger Consideration, without interest. The Company shall give Parent
and Sub (A) prompt notice of any written demands for appraisal, withdrawals of
demands for appraisal and any other related instruments received by the Company,
and (B) the opportunity to direct all negotiations and proceedings with respect
to demands for appraisal. The Company will not, except with the prior written
consent of Parent,
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<PAGE> 11
voluntarily make any payment with respect to any demands for appraisal or settle
or offer to settle any such demand.
2.04 Surrender of Certificates. (a) Prior to the Effective Time, Parent
shall designate a bank or trust company located in the United States to act as
paying agent (the "Paying Agent") for purposes of making the cash payments
contemplated hereby. As soon as practicable after the Effective Time, Parent
shall cause the Paying Agent to mail and/or make available to each holder of a
certificate theretofore evidencing shares of Common Stock (other than those
which are held by any Subsidiary or in the treasury of the Company or which are
held directly or indirectly by Parent or any direct or indirect subsidiary of
Parent (including Sub)) a notice and letter of transmittal advising such holder
of the effectiveness of the Merger and the procedure for surrendering to the
Paying Agent such certificate or certificates which immediately prior to the
Effective Time represented outstanding Common Stock (the "Certificates") in
exchange for the Merger Consideration deliverable in respect thereof pursuant to
this Article II. Upon the surrender for cancellation to the Paying Agent of such
Certificates, together with a letter of transmittal, duly executed and completed
in accordance with the instructions thereon, and any other items specified by
the letter of transmittal, the Paying Agent shall promptly pay to the Person (as
defined in Section 7.14 hereof) entitled thereto the Merger Consideration
deliverable in respect thereof. Until so surrendered, each Certificate shall be
deemed, for all corporate purposes, to evidence only the right to receive upon
such surrender the Merger Consideration deliverable in respect thereof to which
such Person is entitled pursuant to this Article II. No interest shall be paid
or accrued in respect of such cash payments.
(b) If the Merger Consideration (or any portion thereof) is to be
delivered to a Person other than the Person in whose name the Certificates
surrendered in exchange therefor are registered, it shall be a condition to the
payment of the Merger Consideration that the Certificates so surrendered shall
be properly endorsed or accompanied by appropriate stock powers and otherwise in
proper form for transfer, that such transfer otherwise be proper and that the
Person requesting such transfer pay to the Paying Agent any transfer or other
taxes payable by reason of the foregoing or establish to the satisfaction of the
Paying Agent that such taxes have been paid or are not required to be paid.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed, the Paying Agent will issue in
exchange for such lost, stolen or destroyed Certificate the Merger Consideration
deliverable in respect thereof as determined in accordance with this Article II,
provided that, the Person to whom the Merger Consideration is paid shall, as a
condition precedent to the payment thereof, give the Surviving Corporation a
bond in such sum as it may direct or otherwise indemnify the Surviving
Corporation in a manner satisfactory
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<PAGE> 12
to it against any claim that may be made against the Surviving Corporation with
respect to the Certificate claimed to have been lost, stolen or destroyed.
2.05 Payment. Concurrently with or immediately prior to the Effective
Time, Parent or Sub shall deposit in trust with the Paying Agent cash in United
States dollars in an aggregate amount equal to the product of (i) the number of
shares of Common Stock outstanding immediately prior to the Effective Time
(other than shares of Common Stock which are held by any Subsidiary or in the
treasury of the Company or which are held directly or indirectly by Parent or
any direct or indirect subsidiary of Parent (including Sub) or a Person known at
the time of such deposit to be a Dissenting Shareholder) and (ii) the Merger
Consideration (such amount being hereinafter referred to as the "Payment Fund").
The Payment Fund shall be invested by the Paying Agent as directed by Parent in
direct obligations of the United States, obligations for which the full faith
and credit of the United States is pledged to provide for the payment of
principal and interest, commercial paper rated of the highest quality by Moody's
Investors Services, Inc. or Standard & Poor's Ratings Group or certificates of
deposit, bank repurchase agreements or bankers' acceptances of a commercial bank
having at least $100,000,000 in assets (collectively "Permitted Investments") or
in money market funds which are invested in Permitted Investments, and any net
earnings with respect thereto shall be paid to Parent as and when requested by
Parent. The Paying Agent shall, pursuant to irrevocable instructions, make the
payments referred to in Section 2.02(a) hereof out of the Payment Fund. The
Payment Fund shall not be used for any other purpose except as otherwise agreed
to by Parent. Promptly following the date which is six months after the
Effective Time, the Paying Agent shall return to the Surviving Corporation all
cash, certificates and other instruments in its possession that constitute any
portion of the Payment Fund (other than net earnings on the Payment Fund which
shall be paid to Parent), and the Paying Agent's duties shall terminate.
Thereafter, each holder of a Certificate may surrender such Certificate to the
Surviving Corporation and (subject to applicable abandoned property, escheat and
similar laws) receive in exchange therefor the Merger Consideration, without
interest, but shall have no greater rights against the Surviving Corporation or
Parent than may be accorded to general creditors of the Surviving Corporation or
Parent under applicable law. Notwithstanding the foregoing, neither the Paying
Agent nor any party hereto shall be liable to a holder of shares of Common Stock
for any Merger Consideration delivered to a public official pursuant to
applicable abandoned property, escheat and similar laws.
2.06 No Further Rights of Transfers. At and after the Effective Time,
each holder of a Certificate shall cease to have any rights as a shareholder of
the Company, except for, in the case of a holder of a Certificate (other than
shares to be cancelled pursuant to Section 2.02(a) hereof and other than shares
held by Dissenting Shareholders), the right to surrender his or her Certificate
in exchange for payment of the Merger Consideration or, in the case of a
Dissenting Shareholder, to perfect his or her right to receive payment for his
or her shares
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<PAGE> 13
pursuant to New York law if such holder has validly perfected and not withdrawn
his or her right to receive payment for his or her shares, and no transfer of
shares of Common Stock shall be made on the stock transfer books of the
Surviving Corporation. Certificates presented to the Surviving Corporation after
the Effective Time shall be cancelled and exchanged for cash as provided in this
Article II. At the close of business on the day of the Effective Time the stock
ledger of the Company with respect to Common Stock shall be closed.
2.07 Stock Option and Other Plans. (a) Prior to the Effective Time,
each of the Board of Directors of the Company (or, if appropriate, any Committee
thereof) and the Company shall use its reasonable best efforts to obtain the
consent of all of the holders of options to purchase Common Stock (the
"Options") heretofore granted under any stock option plan of the Company (the
"Stock Plans") to provide for the cancellation, effective at the Effective Time,
of all the outstanding Options, as follows: Immediately prior to the Effective
Time, each Option, whether or not then vested or exercisable, shall no longer be
exercisable for the purchase of shares of Common Stock but shall entitle each
holder thereof, in cancellation and settlement therefor, to payments in cash
(subject to any applicable withholding taxes, the "Cash Payment"), at the
Effective Time, equal to the product of (x) the total number of shares of Common
Stock subject to such Option as to which such Option could have been exercisable
and (y) the excess of the Merger Consideration over the exercise price per share
of Common Stock subject to such Option, each such Cash Payment to be paid to
each holder of an outstanding Option at the Effective Time. The Company will use
its reasonable best efforts to ensure that any then-outstanding stock
appreciation rights or limited stock appreciation rights shall be cancelled as
of immediately prior to the Effective Time without any payment therefor. As
provided herein, the Stock Plans and any other plan, program or arrangement
providing for the issuance or grant of any other interest in respect of the
capital stock of the Company or any Subsidiary (collectively with the Stock
Plans, referred to as the "Stock Incentive Plans") shall terminate as of the
Effective Time. The Company will use its reasonable best efforts to take all
steps necessary to ensure that neither the Company nor any of its Subsidiaries
is or will be bound by any Options, other options, warrants, rights or
agreements which would entitle any Person, other than Parent or its affiliates
(including Sub), to own any capital stock of the Surviving Corporation or except
for certain call options in respect of the capital stock of certain of its
dealership subsidiaries, as more fully set forth in Section 3.01(c)(ii) of the
Company Disclosure Letter, any of its subsidiaries or to receive any payment in
respect thereof. The Company will use its reasonable best efforts to obtain all
necessary consents to ensure that after the Effective Time, the only rights of
the holders of Options to purchase shares of Common Stock in respect of such
Options will be to receive the Cash Payment in cancellation and settlement
thereof.
(b) All Stock Plans shall terminate as of the Effective Time and the
provisions in any other Employee Benefit Plan providing for the issuance,
transfer or grant of
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<PAGE> 14
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 reasonable best efforts to ensure that following the Effective Time no
holder of an option to purchase Common Stock or any participant in any Stock
Plan shall have any right thereunder to acquire any capital stock of the
Company, Parent or the Surviving Corporation.
2.08 Certificate of Incorporation of the Surviving Corporation. The
Restated and Amended Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation and shall be amended as set forth on
Annex B attached hereto.
2.09 By-Laws of the Surviving Corporation. The By-Laws of the Company,
as in effect immediately prior to the Effective Time, shall be the By-Laws of
the Surviving Corporation.
2.10 Directors and Officers of the Surviving Corporation. At the
Effective Time, the directors of Sub immediately prior to the Effective Time
shall be the directors of the Surviving Corporation, each of such directors to
hold office, subject to the applicable provisions of the Certificate of
Incorporation and By-Laws of the Surviving Corporation, until the next annual
shareholders' meeting of the Surviving Corporation and until their respective
successors shall be duly elected or appointed and qualified. At the Effective
Time, the officers of the Company immediately prior to the Effective Time shall,
subject to the applicable provisions of the Certificate of Incorporation and
By-Laws of the Surviving Corporation, be the officers of the Surviving
Corporation until their respective successors shall be duly elected or appointed
and qualified.
2.11 Closing. Unless this Agreement shall have been terminated pursuant
to Article VI hereof, and the transactions contemplated thereby shall have been
abandoned, the closing of the Merger (the "Closing") shall take place at the
offices of White & Case, 1155 Avenue of the Americas, New York, New York, as
soon as practicable after the last of the conditions set forth in Article V
hereof is fulfilled or waived (subject to applicable law) but in no event later
than the fifth business day thereafter, or at such other time and place and on
such other date as Parent and the Company shall mutually agree (the "Closing
Date").
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of the Company. The Company hereby
represents and warrants to Parent and Sub as follows:
(a) Due Organization, Good Standing and Corporate Power. Each of the
Company and its Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and each such corporation has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and
authority would not have a material adverse effect on the business,
properties, assets, operations, results of operations or financial
condition (the "Condition") of the Company and its Subsidiaries taken as a
whole. Each of the Company and its Subsidiaries is duly qualified or
licensed to do business and is in good standing in each jurisdiction in
which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except in such
jurisdictions where the failure to be so qualified or licensed and in good
standing would not have a material adverse effect on the Condition of the
Company and its Subsidiaries taken as a whole. The Company has made
available to Parent and Sub complete and correct copies of the Restated and
Amended Certificate of Incorporation and By-Laws of the Company and the
comparable governing documents of each of its Subsidiaries, in each case as
amended to the date of this Agreement. Other than as set forth in Section
3.01(a) of the Company's disclosure letter (the "Company Disclosure
Letter") delivered concurrently with the delivery 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) Authorization and Validity of Agreement. The Company has full
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by the
Company, and the consummation by it of the transactions contemplated
hereby, have been duly authorized and unanimously approved by its Board of
Directors and no other corporate action on the part of the Company is
necessary to authorize the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby (other than the approval of this Agreement by the
holders of at
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<PAGE> 16
least two thirds of the outstanding shares of Common Stock entitled to vote
and the filing of appropriate merger documents as required by New York
law). This Agreement has been duly executed and delivered by the Company
and is a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(c) Capitalization. (i) The authorized capital stock of the Company
consists of 15,000,000 shares of Common Stock and no shares of preferred
stock. As of June 10, 1997, (1) 10,738,604 shares of Common Stock are
issued and outstanding, (2) 148,586 shares of Common Stock are reserved for
issuance pursuant to outstanding Options granted under the Stock Plans and
(3) 20,758 shares of Common Stock are held in the Company's treasury. All
issued and outstanding shares of Common Stock have been validly issued and
are fully paid and nonassessable, and are not subject to, nor were they
issued in violation of, any preemptive rights. Except as set forth in this
Section 3.01(c) or in Section 3.01(c) of the Company Disclosure Letter, (i)
there are no shares of capital stock of the Company authorized, issued or
outstanding and (ii) there are not as of the date hereof, and at the
Effective Time there will not be, any outstanding or authorized options,
warrants, rights, subscriptions, claims of any character, agreements,
obligations, convertible or exchangeable securities, or other commitments,
contingent or otherwise, relating to Common Stock or any other shares of
capital stock of the Company, pursuant to which the Company is or may
become obligated to issue shares of Common Stock, any other shares of its
capital stock or any securities convertible into, exchangeable for, or
evidencing the right to subscribe for, any shares of the capital stock of
the Company. The Company has no authorized or outstanding bonds,
debentures, notes or other indebtedness the holders of which have the right
to vote (or convertible or exchangeable into or exercisable for securities
having the right to vote) with the shareholders of the Company or any of
its Subsidiaries on any matter ("Voting Debt").
(ii) Section 3.01(c)(ii) of the Company Disclosure Letter lists all of
the Company's Subsidiaries. All of the outstanding shares of capital stock
of each of the Company's Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, are not subject to, nor were
they issued in violation of, any preemptive rights, and are owned, of
record and beneficially, by the Company, free and clear of all liens,
encumbrances, options or claims whatsoever, except as set forth in Section
3.01(c)(ii) of the Company Disclosure Letter. Except as set forth in
Section 3.01(c)(ii) of the Company Disclosure Letter, no shares of capital
stock of any of the Company's Subsidiaries are reserved for issuance and
there are no outstanding or authorized
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<PAGE> 17
options, warrants, rights, subscriptions, claims of any character,
agreements, obligations, convertible or exchangeable securities, or other
commitments, contingent or otherwise, relating to the capital stock of any
Subsidiary, pursuant to which such Subsidiary is or may become obligated to
issue any shares of capital stock of such Subsidiary or any securities
convertible into, exchangeable for, or evidencing the right to subscribe
for, any shares of such Subsidiary. There are no restrictions of any kind
which prevent the payment of dividends by any of the Company's
Subsidiaries. Except for the Subsidiaries listed on Section 3.01(c)(ii) of
the Company Disclosure Letter, the Company does not own, directly or
indirectly, any capital stock or other equity interest in any Person or
have any direct or indirect equity or ownership interest in any Person and
neither the Company nor any of its Subsidiaries is subject to any
obligation or requirement to provide funds for or to make any investment
(in the form of a loan, capital contribution or otherwise) to or in any
Person. The Company's Subsidiaries have no Voting Debt.
(d) Consents and Approvals; No Violations. Assuming (i) the filings
required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), are made and the waiting period thereunder has
been terminated or has expired, (ii) voluntary notification under Section
721 of the Defense Production Act of 1950, as amended ("Exon-Florio"), is
made, (iii) the requirements of the Exchange Act relating to the Proxy
Statement and the Offer are met, (iv) the filing of the Certificate of
Merger and other appropriate merger documents, if any, as required by New
York Business Corporation Law, are made and (v) approval of the Merger and
this Agreement by holders of at least two thirds of the outstanding shares
of Common Stock entitled to vote, if required by the New York Business
Corporation Law or the Restated and Amended Certificate of Incorporation or
By-Laws of the Company, is received, the execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby will not: (1) violate any provision of the
Restated and Amended Certificate of Incorporation or By-Laws of the Company
or the comparable governing documents of any of its Subsidiaries; (2)
violate any statute, ordinance, rule, regulation, order or decree of any
court or of any governmental or regulatory body, agency or authority
applicable to the Company or any of its Subsidiaries or by which any of
their respective properties or assets may be bound; (3) require any filing
with, or permit, consent or approval of, or the giving of any notice to,
any governmental or regulatory body, agency or authority; or (4) except as
set forth in Section 3.01(d) of the Company Disclosure Letter, result in a
violation or breach of, conflict with, constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, payment or acceleration) under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of
the properties or assets of the Company or any of
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<PAGE> 18
its Subsidiaries under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, franchise, permit, agreement,
lease, franchise agreement or other instrument or obligation to which the
Company or any of its Subsidiaries is a party, or by which it or any of
their respective properties or assets are bound or subject except for in
the case of clauses (3) and (4) above for such filing, permit, consent,
approval or violation, which would not have a material adverse effect on
the Condition of the Company and its Subsidiaries, taken as a whole, or
would prevent or materially delay consummation of the transactions
contemplated by this Agreement.
(e) Company Reports and Financial Statements. (i) Since January 1,
1994, the Company has filed all forms, reports and documents with the
Commission required to be filed by it pursuant to the federal securities
laws and the Commission rules and regulations thereunder, and all forms,
reports and documents filed with the Commission by the Company have
complied in all material respects with all applicable requirements of the
federal securities laws and the Commission rules and regulations
promulgated thereunder. The Company has, prior to the date of this
Agreement, made available to Parent true and complete copies of all forms,
reports, registration statements and other filings filed by the Company
with the Commission since January 1, 1994, (such forms, reports,
registration statements and other filings, together with any exhibits, any
amendments thereto and information incorporated by reference therein, are
sometimes collectively referred to as the "Commission Filings"). As of
their respective dates, the Commission Filings did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
consolidated balance sheets as of the end of the fiscal years ended
December 31, 1996, December 31, 1995, and December 31, 1994, and the
consolidated statements of income, consolidated statements of shareholders'
equity and consolidated statements of cash flows for the fiscal years ended
December 31, 1996, December 31, 1995, and December 31, 1994, included in
the Commission Filings, were prepared in accordance with generally accepted
accounting principles (as in effect from time to time) applied on a
consistent basis (except as may be indicated therein or in the notes or
schedules thereto) and present fairly, in all material respects, the
consolidated financial position of the Company and its consolidated
Subsidiaries as of the dates thereof and the consolidated results of their
operations and changes in cash flows for the periods then ended.
(f) Absence of Certain Changes. Except as previously disclosed in the
Commission Filings, since December 31, 1996, (i) there has not been any
material adverse change in the Condition of the Company and its
Subsidiaries taken as a whole; (ii) the businesses of the Company and each
of its Subsidiaries have been conducted
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<PAGE> 19
only in the ordinary course; (iii) neither the Company nor any of its
Subsidiaries has incurred any material liabilities (direct, contingent or
otherwise) or engaged in any material transaction or entered into any
material agreement outside the ordinary course of business; (iv) the
Company and its Subsidiaries have not increased the compensation of any
officer or granted any general salary or benefits increase to their
employees other than in the ordinary course of business; (v) neither the
Company nor any of its Subsidiaries has taken any action referred to in
Section 4.03 hereof except as permitted thereby; (vi) there has been no
declaration, setting aside or payment of any dividend or other distribution
with respect to the capital stock of the Company; and (vii) there has been
no change by the Company in accounting principles, practices or methods.
(g) Title to Properties; Encumbrances. The Company and each of its
Subsidiaries has good, valid and marketable title to (i) all of its
material tangible properties and assets (real and personal), including,
without limitation, all the properties and assets reflected in the
consolidated balance sheet as of December 31, 1996 except as indicated in
the notes thereto and except for properties and assets reflected in the
consolidated balance sheet as of December 31, 1996 which have been sold or
otherwise disposed of in the ordinary course of business after such date
and except where the failure to have such good, valid and marketable title
would not have a material adverse effect on the Condition of the Company
and its Subsidiaries taken as a whole, and (ii) all the tangible properties
and assets purchased by the Company and any of its Subsidiaries since
December 31, 1996 except for such properties and assets which have been
sold or otherwise disposed of in the ordinary course of business and except
where the failure to have such good, valid and marketable title would not
have a material adverse effect on the Condition of the Company and its
Subsidiaries taken as a whole; in each case subject to no encumbrance,
lien, charge or other restriction of any kind or character, except for (1)
liens reflected in the consolidated balance sheet as of December 31, 1996,
(2) liens consisting of zoning or planning restrictions, easements, permits
and other restrictions or limitations on the use of real property or
irregularities in title thereto which do not materially detract from the
value of, or impair the use of, such property by the Company or any of its
Subsidiaries in the operation of its respective business, (3) liens for
current taxes, assessments or governmental charges or levies on property
not yet due and delinquent and (4) such encumbrances, liens, charges or
other restrictions which would not have a material adverse effect on the
Condition of the Company and its Subsidiaries taken as a whole.
(h) Compliance with Laws. Except as disclosed in the Commission
Filings, the Company and its Subsidiaries are in compliance with all
applicable laws, regulations, orders, judgments and decrees except where
the failure to so comply would not have a material adverse effect on the
Condition of the Company and its Subsidiaries
-15-
<PAGE> 20
taken as a whole or would prevent or materially delay consummation of the
transactions contemplated by this Agreement.
(i) Litigation. Except as disclosed in the Commission Filings or as
set forth in Section 3.01(i) of the Company Disclosure Letter, there is no
action, suit, proceeding at law or in equity, or any arbitration or any
administrative or other proceeding by or before (or to the knowledge of the
Company any investigation by) any governmental or other instrumentality or
agency, pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its Subsidiaries, or any of their
properties or rights which would have a material adverse effect on the
Condition of the Company and its Subsidiaries taken as a whole or would
prevent or materially delay consummation of the transactions contemplated
by this Agreement. There are no such suits, actions, claims, proceedings or
investigations pending or, to the knowledge of the Company, threatened,
seeking to prevent or challenging the transactions contemplated by this
Agreement. Except as disclosed in the Commission Filings, neither the
Company nor any of its Subsidiaries is subject to any judgment, order or
decree entered in any lawsuit or proceeding which would have a material
adverse effect on the Condition of the Company and its Subsidiaries taken
as a whole or would prevent or materially delay consummation of the
transactions contemplated by this Agreement.
(j) Employee Benefit Plans. Set forth in Section 3.01(j) of the
Company Disclosure Letter is an accurate and complete list of each domestic
and foreign employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended, and the
rules and regulations thereunder ("ERISA"), and each stock option, stock
appreciation right, restricted stock, incentive, bonus, employment,
severance or salary or benefits continuation plan, program, arrangement or
agreement maintained by the Company or any of its Subsidiaries (including,
for this purpose and for the purpose of all of the representations in this
Section 3.01(j), all employers (whether or not incorporated) that would be
treated together with the Company and/or any of its Subsidiaries as a
single employer within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended, and the rules and regulations thereunder (the
"Code")) or to which the Company or any such Subsidiary contributes (or has
any obligation to contribute), has any liability or is a party
(collectively, the "Employee Benefit Plans"); and, except to the extent
that a breach of any of the following representations would not have a
material adverse effect on the Condition of the Company and its
Subsidiaries, taken as a whole, (i) each Employee Benefit Plan is in
substantial compliance with applicable law (including, without limitation,
ERISA and the Code) and has been administered and operated in all respects
in accordance with its terms; (ii) each Employee Benefit Plan which is
intended to be "qualified" within the meaning of Section 401(a) of the Code
has received a
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<PAGE> 21
favorable determination letter from the Internal Revenue Service, and each
foreign Employee Benefit Plan which is intended to have a similar status
under applicable non-U.S. law has received a determination of such status
from the relevant governmental authority, and, to the knowledge of the
Company, no event has occurred and no condition exists which could
reasonably be expected to result in the revocation of any such
determination; (iii) no complete or partial termination of any Employee
Benefit Plan covered by Title IV of ERISA has occurred and no proceedings
have been instituted to terminate or appoint a trustee to administer any
such Employee Benefit Plan; (iv) neither the Company nor any of its
Subsidiaries has incurred any unsatisfied liability to the Pension Benefit
Guaranty Corporation (the "PBGC") with respect to any "single-employer
plan" (within the meaning of Section 4001(a)(15) of ERISA), including,
without limitation, any liability under Section 4069 of ERISA or any
penalty imposed under Section 4071 of ERISA, except for payments of
premiums to the PBGC; (v) no Employee Benefit Plan subject to Section 412
or 418B of the Code or Section 302 of ERISA has incurred any accumulated
funding deficiency within the meaning of such sections of the Code or
ERISA; (vi) the actuarial present value of the accumulated plan benefits
(whether or not vested and determined in accordance with the actuarial
assumptions which are set forth in the most recent actuarial valuation
report of the applicable plan) under any Employee Benefit Plan covered by
Title IV of ERISA or the benefits of which are actuarially determined, as
of the close of its most recent plan year did not exceed the fair value of
the assets allocable thereto; (vii) full payment has been timely made of
all amounts which the Company or any of its Subsidiaries is required under
applicable law or under any Employee Benefit Plan to have paid as of the
last day of the most recent fiscal year of such Employee Benefit Plan ended
prior to the date hereof, and the Company and its Subsidiaries have made
adequate provisions, in accordance with generally accepted accounting
principles, in their financial statements for all obligations and
liabilities under all Employee Benefit Plans that have accrued but have not
been paid because they are not yet due under the terms of any such Employee
Benefit Plan or applicable law; (viii) no Employee Benefit Plan currently
contributed to by the Company or any of its Subsidiaries is a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA, or a
"multiple employer plan" within the meaning of the Code or ERISA and
neither the Company nor any of its Subsidiaries has incurred any
unsatisfied withdrawal liability under Title IV of ERISA with respect to
any such plan; (ix) neither the Company nor any Subsidiary has incurred any
material liability (including, without limitation, additional
contributions, fines, taxes, penalties or loss of tax deduction) as a
result of a failure to administer or operate any Employee Benefit Plan that
is a "group health plan" (as such term is defined in Section 607(1) of
ERISA or Section 5000(b)(1) of the Code) in compliance with the applicable
requirements of Part 6 of Subtitle B of Title I of ERISA or Section 4980B
of the Code; (x) except as set forth in Section 3.01(j)(x) of the Company
Disclosure Letter or the financial
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<PAGE> 22
statements of the Company and its Subsidiaries included in the Commission
Filings, neither the Company nor any of its Subsidiaries has any unfunded
liabilities pursuant to any "employee pension benefit plan" (within the
meaning of Section 3(2) of ERISA) that is not intended to be "qualified"
under Section 401(a) of the Code; (xi) none of the Company, any of its
Subsidiaries or affiliates or, to Company's knowledge, any other
"disqualified person" or "party in interest" (as defined in Section
4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has
engaged in any transaction, act or omission to act in connection with any
Employee Benefit Plan that could reasonably be expected to result in the
imposition of a penalty pursuant to Section 502 of ERISA, damages pursuant
to Section 409 of ERISA or a tax pursuant to Section 4975 of the Code;
(xii) set forth in Section 3.01(j)(xii) of the Company Disclosure Letter
are all Employee Benefit Plans and agreements, which (either alone or upon
the occurrence of any additional or subsequent event) will or may result in
any payment, "parachute payment" (as such term is defined in Section 280G
of the Code), severance, bonus, retirement or job security or similar-type
benefit, or increase any benefits or accelerate the payment or vesting of
any benefits to any employee or former employee or director of the Company
or any Subsidiary as a result of the execution of this Agreement and the
consummation of the transactions contemplated hereby; and (xiii) no
liability, claim, action, audit, examination or litigation has been made,
commenced or, to the Company's knowledge, threatened with respect to any
Employee Benefit Plan (other than for benefits payable in the ordinary
course).
(k) Employment Relations and Agreements. (i) Each of the Company and
its Subsidiaries is in substantial compliance with all federal, state or
other applicable laws respecting employment and employment practices, terms
and conditions of employment and wages and hours, and has not and is not
engaged in any unfair labor practice; (ii) no material unfair labor
practice charge or complaint against the Company or any of its Subsidiaries
is pending before the National Labor Relations Board; (iii) there is no
labor strike, slowdown, stoppage or material dispute actually pending or,
to the knowledge of the Company, threatened against or involving the
Company or any of its Subsidiaries; (iv) no representation question exists
respecting the employees of the Company or any of its Subsidiaries; and (v)
no collective bargaining agreement is currently being negotiated by the
Company or any of its Subsidiaries and neither the Company nor any of its
Subsidiaries is or has been a party to a collective bargaining agreement;
and (vii) neither the Company nor any of its Subsidiaries has experienced
any material labor difficulty during the last three years. Except as
disclosed in Section 3.01(k) of the Company Disclosure Letter or in the
Commission Filings, there exist no employment, consulting, severance,
indemnification agreements or deferred compensation agreements between the
Company and any director, officer or employee
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<PAGE> 23
of the Company or any agreement that would give any Person the right to
receive any payment from the Company as a result of the Offer or the
Merger.
(l) Taxes. Except as provided in Section 3.01(l) of the Company
Disclosure Letter:
(i) Tax Returns. The Company and each of its subsidiaries, has timely
filed or caused to be timely filed with the appropriate taxing authorities
all Federal and other material returns, statements, forms and reports for
Taxes (as hereinafter defined) ("Returns") that are required to be filed
by, or with respect to, the Company and such subsidiaries. The Returns
reflect accurately all material liability for Taxes of the Company and such
subsidiaries for the periods covered thereby. "Taxes" means all taxes,
assessments, charges, duties, fees, levies or other governmental charges,
including, without limitation, all Federal, state, local, foreign and other
income, franchise, profits, capital gains, capital stock, transfer, sales,
use, occupation, property, excise, severance, windfall profits, stamp,
license, payroll, withholding and other taxes, assessments, charges,
duties, fees, levies or other governmental charges of any kind whatsoever
(whether payable directly or by withholding and whether or not requiring
the filing of a Return), all estimated taxes, deficiency assessments,
additions to tax, penalties and interest and shall include any liability
for such amounts as a result either of being a member of a combined,
consolidated, unitary or affiliated group or of a contractual obligation to
indemnify any person or other entity.
(ii) Payment of Taxes. All material Taxes and Tax liabilities of the
Company and its subsidiaries have been timely paid or adequately disclosed
and fully provided for as a liability on the financial statements of the
Company and its subsidiaries in accordance with generally accepted
accounting principles.
(iii) Other Tax Matters. (A) Section 3.01(l)(iii)(A) of the Company
Disclosure Letter sets forth (1) each taxable year or other taxable period
of the Company or any of its subsidiaries for which an audit or other
examination of Taxes by the appropriate tax authorities of any nation,
state or locality is currently in progress (or scheduled to be conducted)
together with the names of the respective tax authorities conducting (or
scheduled to conduct) such audits or examinations and a description of the
material subject matter of such audits or examinations, (2) the most recent
taxable year or other taxable period for which an audit or other
examination relating to Federal income taxes of the Company and its
subsidiaries has been finally completed and the disposition of such audit
or examination, (3) the taxable years or other taxable periods of the
Company or any of its subsidiaries which will not be subject to the
normally applicable statute of limitations by reason of the existence of
circumstances that would
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<PAGE> 24
cause any material statute of limitations for applicable Taxes to be
extended, (4) the amount of any proposed adjustments (and the principal
reason therefor) relating to any Returns for Tax liability of the Company
or any of its subsidiaries which have been proposed or assessed by any
taxing authority and (5) a list of all notices received by the Company or
any of its subsidiaries from any taxing authority relating to any issue
which could affect the Tax liability of the Company or any of its
subsidiaries, which issue has not been finally determined and which, if
determined adversely to the Company or any such subsidiaries, could result
in a material Tax liability.
(B) Neither the Company nor any of its subsidiaries has been
included in any "consolidated," "unitary" or "combined" Return (other than
Returns which include only the Company and any subsidiaries of the Company)
provided for under the law of the United States, any foreign jurisdiction
or any state or locality with respect to Taxes for any taxable period for
which the statute of limitations has not expired.
(C) All material Taxes which the Company or any of its
subsidiaries is (or was) required by law to withhold or collect have been
duly withheld or collected, and have been timely paid over to the proper
authorities to the extent due and payable.
(D) There are no tax sharing, allocation, indemnification or
similar agreements or arrangements in effect as between the Company, any
subsidiary, or any predecessor or affiliate thereof and any other party
under which Parent, Purchaser or the Company (or any of its subsidiaries)
could be liable for any Taxes or other claims of any party other than the
Company or any subsidiary of the Company.
(E) No indebtedness of the Company or any of its subsidiaries
consists of "corporate acquisition indebtedness" within the meaning of
Section 279 of the Code.
(F) Neither the Company nor any of its subsidiaries has been
required to include in income any adjustment pursuant to Section 481 of the
Code by reason of a voluntary change in accounting method initiated by the
Company or any of its subsidiaries, and the Internal Revenue Service has
not initiated or proposed any such adjustment or change in accounting
method.
(m) Liabilities. Neither the Company nor any of its Subsidiaries has
any claims, liabilities or indebtedness, contingent or otherwise,
outstanding except (i) as set forth in the consolidated balance sheet of
the Company as of December 31, 1996, or referred to in the footnotes
thereto, (ii) for liabilities incurred subsequent to December 31, 1996 in
the ordinary course of business not involving borrowings by the Company or
any of its Subsidiaries, (iii) as otherwise disclosed in the Commission
Filings or (iv)
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<PAGE> 25
such claims, liabilities or indebtedness which would not have a material
adverse effect on the Condition of the Company and its Subsidiaries taken
as a whole. Neither the Company nor any of its Subsidiaries is in default
in respect of the material terms and conditions of any indebtedness or
other agreement.
(n) Intellectual Properties. In the operation of its business the
Company and its Subsidiaries have used, and currently use, domestic and
foreign patents, patent applications, patent licenses, software licenses,
know-how licenses, trade names, trademarks, copyrights, unpatented
inventions, service marks, trademark registrations and applications,
service mark registrations and applications, copyright registrations and
applications, trade secrets and other confidential proprietary information
(collectively, as so used, the "Intellectual Property"). Section 3.01(n) of
the Company Disclosure Letter contains an accurate and complete list of all
Intellectual Property which is of material importance to the operation of
the business of the Company and its Subsidiaries. The Company (or the
Subsidiary indicated) owns the entire right, title and interest in and to
the Intellectual Property listed on such Section 3.01(n) of the Company
Disclosure Letter (including, without limitation, the exclusive right to
use and license the same), except where the failure to own such right,
title or interest would not have a material adverse effect on the Condition
of the Company and its Subsidiaries taken as a whole, and each item
constituting part of the Intellectual Property which is owned by the
Company or a Subsidiary and listed on Section 3.01(n) of the Company
Disclosure Letter has been, to the extent indicated in Section 3.01(n) of
the Company Disclosure Letter, duly registered with, filed in or issued by,
as the case may be, the United States Patent and Trademark Office or such
other government entities, domestic or foreign, as are indicated in Section
3.01(n) of the Company Disclosure Letter and such registrations, filings
and issuances remain in full force and effect, except where the failure to
be so registered, filed or issued or for such registrations, filings or
issuances would not have a material adverse effect on the Condition of the
Company and its Subsidiaries taken as a whole. There are no pending, or to
the knowledge of the Company, threatened proceedings or litigation or other
adverse claims affecting or with respect to the Intellectual Property of
the Company. Section 3.01(n) of the Company Disclosure Letter lists all
notices or claims currently pending or received by the Company or any of
its Subsidiaries during the past two years which claim infringement,
contributory infringement, inducement to infringe, misappropriation or
breach by the Company or any of its Subsidiaries of any domestic or foreign
patents, patent applications, patent licenses and know-how licenses, trade
names, trademark registrations and applications, service marks, copyrights,
copyright registrations or applications, unpatented inventions, trade
secrets or other confidential proprietary information. There is, to the
knowledge of the Company, no reasonable basis upon which a claim may be
asserted against the Company or any of its Subsidiaries, for
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<PAGE> 26
infringement, contributory infringement, inducement to infringe,
misappropriation or breach of any domestic or foreign patents, patent
applications, patent licenses, know-how licenses, trade names, trademark
registrations and applications, common law trademarks, service marks,
copyrights, copyright registrations or applications, trade secrets or other
confidential proprietary information, other than as would not have a
material adverse effect on the Condition of the Company and its
Subsidiaries taken as a whole. To the knowledge of the Company, no Person
is infringing the Intellectual Property.
(o) Proxy Statement, Schedule l4D-9 and Schedule l4D-1. The definitive
proxy statement and related materials, if required, to be furnished to the
holders of Common Stock in connection with the Merger pursuant to Section
4.04 hereof (the "Proxy Statement") will comply in all material respects
with the Exchange Act and the rules and regulations thereunder and any
other applicable laws. If at any time prior to the Shareholders' Meeting
(as defined herein) any event occurs which should be described in an
amendment or supplement to the Proxy Statement, the Company will file and
disseminate, as required, an amendment or supplement which complies in all
material respects with the Exchange Act and the rules and regulations
thereunder and any other applicable laws. Prior to its filing with the
Commission, the amendment or supplement shall be delivered to Parent and
Sub and their counsel. None of the information supplied by the Company for
inclusion or incorporation by reference in (i) the documents pursuant to
which the Offer will be made, including the Offer Documents or (ii) the
Proxy Statement, will, in the case of the Offer Documents, at the
respective times the Offer Documents are filed with the Commission, or in
the case of the Proxy Statement at the date such information is supplied
and at the Effective Time, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements made, in light of the circumstance under which they are made,
not misleading. None of the information supplied by the Company in the
Schedule 14D-9, at the respective times the Schedule 14D-9 is filed with
the Commission, will contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
light of the circumstances under which they are made, not misleading.
Notwithstanding the foregoing, no representation or warranty is made with
respect to any information with respect to Parent, Sub or their officers,
directors or affiliates provided to the Company by Parent or Sub in writing
for inclusion in the Schedule 14D-9. The Schedule l4D-9 will comply in all
material respects with the Exchange Act and the rules and regulations
thereunder and any other applicable laws. If at any time prior to the
expiration or termination of the Offer any event occurs which should be
described in an amendment or supplement to the Schedule l4D-9 or any
amendment or supplement thereto, the Company will file and disseminate, as
required, an amendment or supplement which complies in all material
respects with
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<PAGE> 27
the Exchange Act and the rules and regulations thereunder and any other
applicable laws. Prior to its filing with the Commission, the amendment or
supplement shall be delivered to Parent and Sub and their counsel.
(p) Broker's or Finder's Fee. Except for Lehman Brothers (whose fees
and expenses will be paid by the Company in accordance with the Company's
agreement with such firm, a true and correct copy of which has been
previously delivered to Parent by the Company) and the fees referred to in
Section 7.01(b) hereof, no agent, broker, Person or firm acting on behalf
of the Company is, or will be, entitled to any fee, commission or broker's
or finder's fees from any of the parties hereto, or from any Person
controlling, controlled by, or under common control with any of the parties
hereto, in connection with this Agreement or any of the transactions
contemplated hereby.
(q) Environmental Laws and Regulations. Except as set forth on Section
3.01(q) of the Company Disclosure Letter and except as would not reasonably
be expected to have a material adverse effect on the Condition of the
Company and its Subsidiaries, to the knowledge of the Company, (a)
Hazardous Materials have not at any time been Released or disposed of on
any Company Property or, any property adjoining or adjacent to any Company
Property, (b) the Company and each of its Subsidiaries are in compliance in
all material respects with all Environmental Laws and the requirements of
any permits issued under such Environmental Laws with respect to any
Company Property, (c) there are no past, pending or threatened material
Environmental Claims against the Company or any of its Subsidiaries or any
Company Property and (d) there are no facts or circumstances, conditions or
occurrences regarding any Company Property or any property adjoining or
adjacent to any Company Property, that could reasonably be anticipated (A)
to form the basis of a material Environmental Claim against the Company or
any of its Subsidiaries or any Company Property or (B) to cause such
Company Property to be subject to any material restrictions on its
ownership, occupancy, use or transferability under any Environmental Law.
For purposes of this Agreement, the following terms shall have the
following meanings: (A) "Company Property" means any real property and
improvements owned or leased by the Company or any of its Subsidiaries; (B)
"Hazardous Materials" means (i) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas; (ii) any chemicals, materials or substances
defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous
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materials," "extremely hazardous wastes," "restricted hazardous wastes,"
"toxic substances," "toxic pollutants," or words of similar import, under
any applicable Environmental Law; and (iii) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental authority; (C) "Environmental Law" means any federal, state or
local statute, law, rule, regulation, ordinance, code or rule of common law
in effect and in each case as amended as of the date hereof and Closing
Date, and any judicial or administrative interpretation thereof applicable
to the Company or its operations or property as of the date hereof and
Closing Date, including any judicial or administrative order, consent
decree or judgment, relating to the environment, health, safety or
Hazardous Materials, including without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq.; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq.; the Federal Water
Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air
Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C.
Section 3808 et seq.; and (D) "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings under any Environmental Law or any permit
issued under any such Environmental Law (for purposes of this subclause
(D), "Claims"), including without limitation (i) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment;
and (E) "Release" means disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, emptying or seeping into or
upon any land or water or air, or otherwise entering into the environment.
(r) State Takeover Statutes; Charter Provisions. The Board of
Directors of the Company has approved the Offer, the Merger and this
Agreement and such approval is sufficient to render inapplicable to the
Offer, the Merger and this Agreement and the other transactions
contemplated by this Agreement, the provisions of Section 912 of the New
York Business Corporation Law and the provisions of Article SEVENTH of the
Company's Restated and Amended Certificate of Incorporation.
(s) Voting Requirements. The affirmative vote of the holders of at
least two thirds of the outstanding shares of Company Common Stock entitled
to be cast approving this Agreement is the only vote of the holders of any
class or series of the
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Company's capital stock necessary to approve this Agreement and the
transactions contemplated by this Agreement.
(t) Rights Agreement. (i) The Company and the Board of Directors of
the Company have taken and will maintain in effect all necessary action to
(i) render the Rights Agreement inapplicable with respect to the Offer, the
Merger and the other transactions contemplated by this Agreement and (ii)
ensure that (y) neither Parent nor Sub nor any of their Affiliates (as
defined in the Rights Agreement) or Associates (as defined in the Rights
Agreement) is considered to be an Acquiring Person (as defined in the
Rights Agreement) and (z) the provisions of the Rights Agreement, including
the occurrence of a Distribution Date (as defined in the Rights Agreement),
are not and shall not be triggered by reason of the announcement or
consummation of the Offer, the Merger or the consummation of any of the
other transactions contemplated by this Agreement. The Board of Directors
of the Company, at a meeting duly called and held, has resolved that the
Rights shall be redeemed immediately prior to the acceptance for payment
and purchase of any of the outstanding shares of Common Stock pursuant to
the Offer in accordance with the terms of this Agreement provided that this
Agreement shall not have been terminated in accordance with its terms. The
Company has delivered to Parent a complete and correct copy of the Rights
Agreement as amended and supplemented to the date of this Agreement.
(u) Opinion of Financial Advisor. The Company has received the opinion
of Lehman Brothers 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 shareholders, other than Parent and Sub, is fair to such
shareholders from a financial point of view, subject to the qualifications
and assumptions contained therein, and a complete and correct signed copy
of such opinion has been, or promptly upon receipt thereof will be,
delivered to Parent.
3.02 Representations and Warranties of Parent and Sub. Each of Parent
and Sub represents and warrants to the Company as follows:
(a) Due Organization; Good Standing and Corporate Power. Parent is a
corporation duly organized and validly existing and in good standing under
the laws of Sweden. Sub is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York.
(b) Authorization and Validity of Agreement. Each of Parent and Sub
has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The
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execution, delivery and performance of this Agreement by Parent and Sub,
and the consummation by each of them of the transactions contemplated
hereby, have been duly authorized by the Board of Directors of Parent and
the Board of Directors of Sub. No other corporate action on the part of
either of Parent or Sub is necessary to authorize the execution, delivery
and performance of this Agreement by each of Parent and Sub and the
consummation of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by each of Parent and Sub and is a valid
and binding obligation of each of Parent and Sub, enforceable against each
of Parent and Sub in accordance with its terms, except that such
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, and general equitable principles.
(c) Consents and Approvals; No Violations. Assuming (i) the filings
required under the HSR Act are made and the waiting period thereunder has
been terminated or has expired, (ii) voluntary notification under
Exon-Florio is made, (iii) the requirements of the Exchange Act relating to
the Proxy Statement and the Offer are met and (iv) the filing of the
Certificate of Merger and other appropriate merger documents, if any, as
required by the laws of the State of New York is made, the execution and
delivery of this Agreement by Parent and Sub and the consummation by Parent
and Sub of the transactions contemplated hereby will not: (1) violate any
provision of the Articles of Association of Parent or the Certificate of
Incorporation or By-Laws of the Sub; (2) violate any statute, ordinance,
rule, regulation, order or decree of any court or of any governmental or
regulatory body, agency or authority applicable to Parent or Sub or by
which either of their respective properties or assets may be bound; (3)
require any filing with, or permit, consent or approval of, or the giving
of any notice to any governmental or regulatory body, agency or authority;
or (4) result in a violation or breach of, conflict with, constitute (with
or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, or result in
the creation of any lien, security interest, charge or encumbrance upon any
of the properties or assets of the Parent, Sub or any of their subsidiaries
under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, franchise, permit, agreement, lease or other
instrument or obligation to which Parent or Sub or any of their
subsidiaries is a party, or by which they or their respective properties or
assets may be bound except for in the case of clauses (3) and (4) above for
such filing, permit, consent, approval or violation, which would not
reasonably be expected to have a material adverse effect on the Condition
of the Parent and Sub, taken as a whole, or could be reasonably likely to
prevent or materially delay consummation of the transactions contemplated
by this Agreement.
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<PAGE> 31
(d) Offer Documents, Schedule l4D-9 and Proxy Statement. The Offer
Documents will comply in all material respects with the Exchange Act and
the rules and regulations thereunder and any other applicable laws. If at
any time prior to the expiration or termination of the Offer any event
occurs which should be described in an amendment or supplement to the
Schedule l4D-1 or any amendment or supplement thereto, Sub will file and
disseminate, as required, an amendment or supplement which complies in all
material respects with the Exchange Act and the rules and regulations
thereunder and any other applicable laws. Prior to its filing with the
Commission, the amendment or supplement shall be delivered to the Company
and its counsel. The written information supplied or to be supplied by
Parent and Sub for inclusion in the Proxy Statement and the Schedule l4D-9
of the Company 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 made, in light of the circumstances under
which they are made, not misleading. Notwithstanding the foregoing, no
representation or warranty is made with respect to any information with
respect to the Company or its officers, directors and affiliates provided
to Parent or Sub by the Company in writing for inclusion in the Offer
Documents or amendments or supplements thereto.
(e) Broker's or Finder's Fee. Except for Salomon Brothers, Inc (whose
fees and expenses as financial advisor to Parent and Sub will be paid by
Parent or Sub), no agent, broker, Person or firm acting on behalf of Parent
or Sub is, or will be, entitled to any fee, commission or broker's or
finder's fees from any of the parties hereto, or from any Person
controlling, controlled by, or under common control with any of the parties
hereto, in connection with this Agreement or any of the transactions
contemplated hereby.
(f) Financing. Parent has entered into two credit facilities with a
Swedish bank (copies of which have been delivered to the Company) pursuant
to which credit agreements such bank, subject to certain conditions set
forth in such credit agreements, will provide all funds necessary, together
with funds available to the Parent and Sub, to consummate the transactions
contemplated hereby.
ARTICLE IV
TRANSACTIONS PRIOR TO CLOSING DATE
4.01 Access to Information Concerning Properties and Records. During
the period commencing on the date hereof and ending on the earlier of (x) the
Closing Date and
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(y) the date on which this Agreement is terminated pursuant to Section 6.01
hereof, the Company shall, and shall cause each of its Subsidiaries to, upon
reasonable notice, afford Parent and Sub, and their respective counsel,
accountants, consultants and other authorized representatives, reasonable access
during normal business hours to the employees, properties, books and records of
the Company and its Subsidiaries in order that they may have the opportunity to
make such investigations as they shall desire of the affairs of the Company and
its Subsidiaries; such investigation shall not, however, affect the
representations and warranties made by the Company in this Agreement. The
Company shall furnish promptly to Parent and Sub (a) a copy of each report,
schedule, registration statement and other document filed by it or its
Subsidiaries during such period pursuant to the requirements of Federal or state
securities laws and (b) all other information concerning its or its
Subsidiaries' business, properties and personnel as Parent and Sub may
reasonably request. The Company agrees to cause its officers and employees to
furnish such additional financial and operating data and other information and
respond to such inquiries as Parent and Sub shall from time to time request.
4.02 Confidentiality. Information obtained by Parent, Sub and their
respective counsel, accountants, consultants and other authorized
representatives pursuant to Section 4.01 hereof shall be subject to the
provisions of the Confidentiality Agreement between the Company and Parent dated
April 4, 1997 (the "Confidentiality Agreement").
4.03 Conduct of the Business of the Company Pending the Closing Date.
The Company agrees that, except as permitted, required or specifically
contemplated by, or otherwise described in, this Agreement or otherwise
consented to or approved in writing by Parent (which consent or approval shall
not be unreasonably withheld), during the period commencing on the date hereof
until such time as nominees of Parent shall comprise two thirds of the members
of the Board of Directors of the Company or this Agreement shall have been
terminated pursuant to Section 6.01 hereof:
(a) The Company and each of its Subsidiaries will conduct their
respective operations only according to their ordinary and usual course of
business consistent with past practice and will use their reasonable best
efforts to preserve intact their respective business organization, keep
available the services of their officers and employees and maintain
satisfactory relationships with licensors, suppliers, distributors,
clients, joint venture partners, and others having significant business
relationships with them;
(b) Neither the Company nor any of its Subsidiaries shall (i) make any
change in or amendment to its Restated and Amended Certificate of
Incorporation or By-Laws (or comparable governing documents); (ii) issue or
sell any shares of its capital stock (other than in connection with the
exercise of Options outstanding on the date hereof) or any of its other
securities, or issue any securities convertible into, or options,
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warrants or rights to purchase or subscribe to, or enter into any
arrangement or contract with respect to the issuance or sale of, any shares
of its capital stock or any of its other securities, or make any other
changes in its capital structure; (iii) sell or pledge or agree to sell or
pledge any stock owned by it in any of its Subsidiaries except pursuant to
certain call options in respect of the capital stock of certain of its
dealership subsidiaries, as set forth in Section 3.01(c)(ii) of the Company
Disclosure Letter; (iv) declare, pay, set aside or make any dividend (other
than regular quarterly cash dividends of $.0625 per share of Common Stock)
or other distribution or payment with respect to, or split, combine, redeem
or reclassify, or purchase or otherwise acquire any shares of its capital
stock or its other securities, ; (v) (A) enter into any contract or
commitment with respect to capital expenditures with a value in excess of,
or requiring expenditures by the Company and its Subsidiaries in excess of,
$1.0 million, individually, or enter into contracts or commitments with
respect to capital expenditures with a value in excess of, or requiring
expenditures by the Company and its Subsidiaries in excess of, $3.0
million, in the aggregate; (B) acquire (by merger, consolidation, or
acquisition of stock or assets) any corporation, partnership or other
business or division thereof; or (C) enter into, amend, modify, supplement
or cancel any other material contract, (vi) except in the ordinary course
of business, consistent with past practice, acquire a material amount of
assets or securities or release or relinquish any material contract rights;
(vii) except in the ordinary course of business, consistent with past
practice, and except to the extent required under existing employee and
director benefit plans, agreements or arrangements as in effect on the date
of this Agreement, increase the compensation or fringe benefits of any of
its directors, officers or employees, except for increases in salary or
wages of employees of the Company or its subsidiaries who are not officers
of the Company in the ordinary course of business in accordance with past
practice, or grant any severance or termination pay not currently required
to be paid under existing severance plans or enter into any employment,
consulting or severance agreement or arrangement with any present or former
director, officer or other employee of the Company or any of its
Subsidiaries (other than employment contracts with the individuals listed
on Section 4.03(b)(vii) of the Company Disclosure Letter), or establish,
adopt, enter into or amend or terminate any collective bargaining, bonus,
profit sharing, thrift, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, employment, termination,
severance or other plan, agreement, trust, fund, policy or arrangement for
the benefit of any directors, officers or employees; (viii) transfer,
lease, license, guarantee, sell, mortgage, pledge, dispose of, encumber or
subject to any lien, any material assets or incur or modify any
indebtedness or other material liability, other than in the ordinary course
of business, or issue any debt securities or assume, guarantee or endorse
or otherwise as an accommodation become responsible for the obligations of
any person or, other than in the ordinary course of business consistent
with past practice, make any
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loan or other extension of credit; (ix) agree to the settlement of any
material claim or litigation; (x) make any material tax election or settle
or compromise any material tax liability; (xi) permit any insurance policy
naming it as beneficiary or a loss payable payee to be cancelled without
notice to Parent; (xii) except as required by applicable law or generally
accepted accounting principals, make any material change in its method of
accounting; (xiii) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or
other reorganization of the Company or any of its Subsidiaries not
constituting an inactive Subsidiary (other than the Merger); or (xiv)
agree, in writing or otherwise, to take any of the foregoing actions; and
(c) The Company shall not, and shall not permit any of its
Subsidiaries to, (i) take any action, engage in any transaction or enter
into any agreement which would cause any of the representations or
warranties set forth in Section 3.01 hereof to be untrue as of the Closing
Date, or (ii) purchase or acquire, or offer to purchase or acquire, any
shares of capital stock of the Company.
4.04 Proxy Statement. If shareholder approval of the Merger is
required by law or by the Company's Restated and Amended Certificate of
Incorporation or By-Laws, as promptly as practicable, following Parent's request
the Company will prepare and file a preliminary Proxy Statement with the
Commission and will use its reasonable best efforts to respond to the comments
of the Commission, if any, in connection therewith and to furnish all
information regarding the Company required in the definitive Proxy Statement
(including, without limitation, financial statements and supporting schedules
and certificates and reports of independent public accountants). Parent, Sub and
the Company will cooperate with each other in the preparation of the Proxy
Statement. Without limiting the generality of the foregoing, each of Parent and
Sub will furnish to the Company the information relating to it required by the
Exchange Act to be set forth in the Proxy Statement. Promptly after the
expiration or termination of the Offer, if required by the New York Business
Corporation Law in order to consummate the Merger, the Company will cause the
definitive Proxy Statement to be mailed to the shareholders of the Company and,
if necessary, after the definitive Proxy Statement shall have been so mailed,
promptly circulate amended, supplemental or supplemented proxy material and, if
required in connection therewith, resolicit proxies. The Company will not use
any proxy material in connection with the meeting of its shareholders without
Parent's prior approval.
4.05 Shareholder Approval. (a) Promptly following the purchase of
shares of Common Stock pursuant to the Offer, if required by New York Business
Corporation Law in order to consummate the Merger, the Company, acting through
its Board of Directors, shall, in accordance with applicable law, duly call,
convene and hold a meeting of the holders of
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Common Stock (the "Shareholders' Meeting") for the purpose of voting upon this
Agreement and the Merger and the Company agrees that this Agreement and the
Merger shall be submitted at such meeting. The Company shall use its reasonable
best efforts to solicit from its shareholders proxies, and shall take all other
action necessary and advisable, to secure the vote of shareholders required by
applicable law and the Company's Restated and Amended Certificate of
Incorporation or By-Laws to obtain the approval for this Agreement. Subject to
Section 4.07 hereof, the Company agrees that it will include in the Proxy
Statement the recommendation of its Board of Directors that holders of Common
Stock approve and adopt this Agreement and approve the Merger. Parent will cause
all shares of Common Stock owned by Parent and its Subsidiaries (including Sub)
to be voted in favor of this Agreement and the Merger.
(b) Notwithstanding the foregoing, in the event that Sub shall acquire
at least 90% of the outstanding Company Common Stock, the Company agrees, at the
request of Parent and Sub, subject to Article V, to take all necessary and
appropriate action to cause the Merger to become effective as soon as reasonably
practicable after such acquisition, without a meeting of the Company's
shareholders, in accordance with Section 905 of the New York Business
Corporation Law.
4.06 Reasonable Best Efforts. Subject to the terms and conditions
provided herein, each of the Company, Parent and Sub shall, and the Company
shall cause each of its Subsidiaries to, cooperate and use their respective
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to make, or cause to be made, all filings necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
their respective reasonable best efforts to obtain, prior to the Closing Date,
all licenses, permits, consents, approvals, authorizations, qualifications and
orders of governmental authorities and parties to contracts with the Company and
its Subsidiaries as are necessary for consummation of the transactions
contemplated by this Agreement and to fulfill the conditions to the Offer and
the Merger; provided, however, that no loan agreement or contract for borrowed
money shall be repaid except as currently required by its terms, in whole or in
part, and no contract shall be amended to increase the amount payable thereunder
or otherwise to be more burdensome to the Company or any of its Subsidiaries in
order to obtain any such consent, approval or authorization without first
obtaining the written approval of Parent and Sub.
4.07 No Solicitation of Other Offers. (a) The Company and its
affiliates and each of their respective officers, directors, employees,
representatives and agents shall immediately cease any discussions or
negotiations with any other parties that may be ongoing with respect to any
Acquisition Proposal (as defined below). Neither the Company nor any of its
affiliates, shall, directly or indirectly, take (and the Company shall not
authorize or permit
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<PAGE> 36
its or its affiliates, officers, directors, employees, representatives,
consultants, investment bankers, attorneys, accountants or other agents or
affiliates, to so take) any action to (i) encourage, solicit or initiate the
making of any Acquisition Proposal, (ii) enter into any agreement with respect
to any Acquisition Proposal or (iii) participate in any way in discussions or
negotiations with, or, furnish or disclose any information to, any Person (other
than Parent or Sub) in connection with, or take any other action to facilitate
any inquiries or the making of any proposal (including without limitation by
taking any action that would make the Rights Agreement, Section 912 of the New
York Business Corporation Law or the provisions of Article SEVENTH of the
Company's Restated and Amended Certificate of Incorporation inapplicable to an
Acquisition Proposal) that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal, provided, however, that the Company, in response
to an unsolicited Acquisition Proposal and in compliance with its obligations
under Section 4.07(b) hereof, may participate in discussions or negotiations
with or furnish information to any third party which proposes a transaction
which the Board of Directors of the Company reasonably determines will result in
a Superior Proposal if the Board of Directors believes (and has been advised by
independent outside counsel) that failing to take such action would constitute a
breach of its fiduciary duties. In addition, neither the Board of Directors of
the Company nor any Committee thereof shall (x) withdraw or modify, or propose
to withdraw or modify, in a manner adverse to Parent or Sub the approval and
recommendation of the Offer and this Agreement or (y) approve or recommend, or
propose to approve or recommend, any Acquisition Proposal, provided that the
Company may recommend to its shareholders an Acquisition Proposal and in
connection therewith withdraw or modify its approval or recommendation of the
Offer or the Merger if (i) the Board of Directors of the Company has determined
that the Acquisition Proposal is a Superior Proposal, (ii) all the conditions to
the Company's right to terminate this Agreement in accordance with Section
6.01(f) hereof have been satisfied (including the expiration of the three
Business Day period described therein and the payment of all amounts required
pursuant to Section 7.01 hereof) and (iii) simultaneously with such withdrawal,
modification or recommendation, this Agreement is terminated in accordance with
Section 6.01(f) hereof. Any actions permitted under, and taken in compliance
with, this Section 4.07 shall not be deemed a breach of any other covenant or
agreement of such party contained in this Agreement.
"Acquisition Proposal" shall mean any inquiry, proposal or offer from
any Person relating to any direct or indirect acquisition or purchase of a
substantial amount of assets of the Company or any of its Subsidiaries or of
over 10% of any class of equity securities of the Company or any of its
Subsidiaries, any tender offer or exchange offer that if consummated would
result in any person beneficially owning 10% or more of any class of equity
securities of the Company or any of its Subsidiaries, any merger, consolidation,
business combination, sale of substantially all the assets, recapitalization,
liquidation, dissolution or similar transaction involving the Company or any of
its Subsidiaries, other than the transactions contemplated by
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<PAGE> 37
this Agreement, or any other transaction the consummation of which could
reasonably be expected to impede, interfere with, prevent or materially delay
the Offer or the Merger or which would reasonably be expected to dilute
materially the benefits to Parent of the transactions contemplated hereby.
"Superior Proposal" shall mean a bona fide proposal made by a third party to
acquire all of the outstanding shares of the Company pursuant to a tender offer,
a merger or a sale of all of the assets of the Company (x) on terms which a
majority of the members of the Board of Directors of the Company determines in
its good faith reasonable judgment (based on the advice of independent outside
financial and legal advisors) to be more favorable to the Company and its
shareholders than the transactions contemplated hereby and (y) for which
financing is then available (it being understood that financing evidenced by
highly confident letters and similar letters shall not be considered "available"
for purposes of this Section).
(b) In addition to the obligations of the Company set forth in
paragraph (a), on the date of receipt thereof, the Company shall advise Parent
of any request for information or of any Acquisition Proposal, or any inquiry or
proposal with respect to any Acquisition Proposal, the material terms and
conditions of such request or Acquisition Proposal, and the identity of the
person making any such Acquisition Proposal. The Company will keep Parent fully
informed of the status and details (including amendments or proposed amendments)
of any such request or Acquisition Proposal and keep Parent fully informed as to
the details of any information requested of or provided by, the Company and as
to the details of all discussions or negotiations with respect to any such
request, takeover proposal or inquiry.
(c) Immediately following the purchase of Shares pursuant to the
Offer, the Company will request each person which has heretofore executed a
confidentiality agreement in connection with its consideration of acquiring the
Company or any portion thereof (the "Confidentiality Agreements") to return all
confidential information heretofore furnished to such person by or on behalf of
the Company.
4.08 Notification of Certain Matters. The Company shall give prompt
notice to Parent, and Parent and Sub shall give prompt notice to the Company, of
the occurrence, of failure to occur, of any event, which occurrence or failure
to occur would be likely to cause any representation or warranty contained in
this Agreement to be untrue in any material respect at any time from the date of
this Agreement to the Effective Time. Each of the Company and Parent shall give
prompt notice to the other party of any notice or other communication from any
third party alleging that the consent of such third party is or may be required
in connection with the transactions contemplated by this Agreement.
4.09 HSR Act. (a) Each party hereto shall (i) take promptly all
actions necessary to make the filings required of it or any of its affiliates
under the applicable Antitrust
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Laws (as defined in Section 4.09(e) hereof) in connection with this Agreement
and the transactions contemplated hereby, (ii) comply at the earliest
practicable date with any request for additional information or documentary
material received by it or any of its affiliates from the Federal Trade
Commission (the "FTC") or the Antitrust Division of the Department of Justice
(the "Antitrust Division") and (iii) cooperate with one another in connection
with any filing under applicable Antitrust Laws and in connection with resolving
any investigation or other inquiry concerning the transactions contemplated by
this Agreement initiated by any Antitrust Authority (as defined in Section
4.09(e) hereof).
(b) Each party hereto shall use its reasonable best efforts to resolve
such objections, if any, as may be asserted with respect to the transactions
contemplated by this Agreement under any Antitrust Law. Without limiting the
generality of the foregoing, "reasonable best efforts" shall include, without
limitation:
(i) in the case of each of Parent and the Company:
(A) filing with the appropriate Antitrust Authorities no later
than the fifth Business Day following the date hereof a Notification
and Report Form with respect to the transactions contemplated by this
Agreement; and
(B) if Parent or the Company receives a second request for
information and documents from an Antitrust Authority, substantially
complying with such second request within 60 days following the date
of its receipt thereof;
(ii) in the case of Parent only, taking any and all actions reasonably
necessary, proper or advisable to cause the HSR Condition and Section
5.01(b) hereof to be satisfied and to permit the Closing to occur as soon
as possible, but in any event on or prior to the Outside Date (as defined
below) (it being understood that, without limiting Parent's obligations
hereunder, the timing of the Closing shall be as set forth in Section
2.11); provided, however, that Parent's obligations hereunder shall not
include agreeing to dispose of or hold separately all or any material
portion of the business or assets of Parent and its subsidiaries, taken as
a whole or the Company and its Subsidiaries, taken as a whole, or to take
any other action which would materially and adversely effect the business,
assets or operations of Parent and its subsidiaries taken as a whole or the
Company and its Subsidiaries taken as a whole; and
(iii) in the case of the Company only, subject to Parent's compliance
with clauses (i) and (ii) above, not frustrating or impeding Parent's
strategy or negotiating positions with any Antitrust Authority.
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<PAGE> 39
(c) Notwithstanding the foregoing, Parent's obligations pursuant to
Section 4.09(b)(ii) above shall not include defending any administrative,
judicial or legislative action brought by any Antitrust Authority or other
Person or otherwise litigating against any Antitrust Authority or other person.
Should Parent nonetheless elect to litigate against any Antitrust Authority or
other person, the Company shall cooperate with Parent in any such proceeding.
(d) Each party hereto shall promptly inform the other parties of any
material communication made to, or received by such party from, any Antitrust
Authority or any other governmental or regulatory authority regarding any of the
transactions contemplated hereby. In addition, and without limiting the
generality of the foregoing, Parent and the Company each shall cause its counsel
to (i) afford to the other party's counsel the opportunity to receive and to
review for a reasonable period in advance of filing or submission to any
Antitrust Authority all forms, letters and memoranda (excluding documents
submitted as attachments or enclosed with such forms, letters or memoranda)
proposed to be filed or submitted to any Antitrust Authority regarding the
transactions contemplated hereby, and give reasonable consideration to any
comments or proposals such counsel may make with respect to any such forms,
letters or memoranda, (ii) give reasonable advance notice to the other party's
counsel of each meeting or pre-arranged telephone call with any Antitrust
Authority regarding the transactions contemplated hereby, so that such counsel
may request to attend or otherwise participate therein, and to give reasonable
consideration to such request, and (iii) promptly inform the other party's
counsel of the substance of each other material communication (written or oral,
in person or by telephone) with any Antitrust Authority regarding the
transactions contemplated hereby.
(e) For purposes hereof, (i) "Antitrust Authorities" means the FTC,
the Antitrust Division and the attorneys general of the several states of the
United States and (ii) "Antitrust Law" means the Sherman Act, as amended, the
Clayton Act, as amended, the Antitrust Improvements Act, the Federal Trade
Commission Act, as amended, and all other federal and state statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines, and other
laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade.
4.10 Exon-Florio. The Company and Parent shall, as soon as possible
and in any event within ten days of the date of this Agreement, file a voluntary
notification pursuant to, and in compliance with, Exon-Florio and shall use
their best efforts to respond to any inquiries from governmental officials with
respect thereto.
4.11 Employee Benefits. (a) Until the first anniversary of the
Effective Time, Parent shall ensure that all employees and officers of the
Company receive compensation and benefits in the aggregate substantially
comparable to the compensation and benefits received by such individuals
immediately prior to the date hereof.
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(b) Until the first anniversary of the Effective Time, Parent shall
keep in effect all severance policies that are applicable to employees and
officers of the Company immediately prior to the date hereof.
(c) Following the Effective Time, (i) Parent shall ensure that no
employee welfare benefit plan adopted by the Company shall have any preexisting
condition limitations and (ii) Parent shall honor all premiums and deductibles
paid by the employees, officers and directors of the Company under all Employee
Benefit Plans up to (and including) the Effective Time.
(d) Following the Effective Time, for purposes of eligibility and
vesting, Parent shall honor all service credit accrued by the employees,
officers and directors of the Company under all Employee Benefit Plans up to
(and including) the Effective Time.
(e) Following the Effective Time, Parent shall honor all employment
contracts with employees and officers and all contracts for services rendered
with directors of the Company.
4.12 Directors' and Officers' Insurance; Indemnification. (a) The
certificate of incorporation and the by-laws of the Surviving Corporation shall
contain the provisions with respect to indemnification and exculpation from
liability set forth in the Company's certificate of incorporation and by-laws on
the date of this Agreement, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in any
manner that would adversely affect the rights thereunder of individuals who on
or prior to the Effective Time were directors, officers, employees or agents of
the Company, unless such modification is required by law.
(b) For six years from the Effective Time, the Surviving Corporation
shall either (x) maintain in effect the Company's current directors' and
officers' liability insurance covering those persons who are currently covered
on the date of this Agreement by the Company's directors' and officers'
liability insurance policy (a copy of which has been heretofore delivered to
Parent) (the "Indemnified Parties"); provided, however, that in no event shall
Parent be required to expend in any one year an amount in excess of 150% of the
annual premiums currently paid by the Company for such insurance which the
Company represents to be $80,050 for the twelve month period ending on July 1,
1997; and provided further that if the annual premiums of such insurance
coverage exceed such amount, the Surviving Corporation shall be obligated to
obtain a policy with the greatest coverage available for a cost not exceeding
such amount; provided further that the Surviving Corporation may substitute for
such Company policies, policies with at least the same coverage containing terms
and conditions which are no less advantageous and provided that said
substitution does not result in any gaps
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or lapses in coverage with respect to matters occurring prior to the Effective
Time or (y) cause the Parent's, directors' and officers' liability insurance
then in effect to cover those persons who are covered on the date of this
Agreement by the Company's directors' and officers' liability insurance policy
with respect to those matters covered by the Company's directors' and officers'
liability policy.
(c) In furtherance of and not in limitation of the preceding
paragraph, Parent and Sub agree that the officers and directors of the Company
that are defendants in any litigation commenced by shareholders of the Company
with respect to (x) the performance of their duties as officers and/or directors
of the Company under federal or state law (including litigation under federal
and state securities laws) and (y) Sub's offer or proposal to acquire the
Company, including, without limitation, any and all such litigation commenced on
or after the date of this Agreement (the "Subject Litigation") shall be entitled
to be represented, at the reasonable expense of the Company, in the Subject
Litigation by one counsel (including, if appropriate, one local counsel in each
jurisdiction in which a case is pending) each of which such counsel shall be
selected by a plurality of such director and officer defendants; provided that
neither Parent nor the Company shall be liable for any settlement effected
without its prior written consent (which consent shall not be unreasonably
withheld) and that a condition to the indemnification payments provided in
Section 4.12(a) hereof shall be that such officer/director defendant not have
settled any Subject Litigation without the consent of Parent; and provided
further that neither Parent nor the Company shall have any obligation hereunder
to any officer/director defendant when and if a court of competent jurisdiction
shall ultimately determine, and such determination shall have become final and
non-appealable, that indemnification of such officer/director defendant in the
manner contemplated hereby is prohibited by applicable law.
(d) At the Effective Time, the Company shall remain liable for all of
its obligations under the existing indemnification agreements with each of the
directors and officers of the Company.
4.13 Rights Agreement. The Company shall not redeem the Rights or
amend (other than to delay the Distribution Date (as defined therein) or to
render the Rights inapplicable to the Offer and the Merger) or terminate the
Rights Agreement prior to the Effective Time without the consent of the Parent,
unless required to do so by a court of competent jurisdiction.
4.14. Public Announcements. Parent and the Company shall consult with
each other before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this Agreement and
shall not issue any such press release or make any such public statement prior
to such consultation and review by the other party of
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such release or statement or without the prior consent of the other party, which
shall not be unreasonably withheld; provided, however, that a party may, without
the prior consent of the other party, issue such press release or make such
public statement as may be required by law or any listing agreement with a
national securities exchange or automated quotation system which Parent or the
Company is a party if it has used all reasonable efforts to consult with the
other party and to obtain such party's consent but has been unable to do so in a
timely manner.
4.15 Transfer Tax. Parent shall pay any New York State Real Estate
Transfer Tax and New York City Real Property Transfer Tax (the "Transfer Taxes")
and any similar taxes in any other jurisdiction (and any penalties and interest
with respect to such taxes), which become payable in connection with the Offer
and the Merger, on behalf of the shareholders of the Company. Parent and the
Company shall cooperate in the preparation, execution and filing of any required
returns with respect to such taxes (including returns on behalf of the
shareholders of the Company) and in the determination of the portion of the
consideration allocable to the real property of the Company and the Subsidiaries
in New York State and City (or in any other jurisdiction, if applicable). The
terms of the Offer to Purchase and of the Proxy Statement shall provide that the
shareholders of the Company shall be deemed to have agreed to be bound by the
allocation established pursuant to this Section 4.14 in the preparation of any
return with respect to the Transfer Taxes and any similar taxes, if applicable.
ARTICLE V
CONDITIONS PRECEDENT TO MERGER
5.01 Conditions Precedent to Obligations of Parent, Sub and the
Company. The respective obligations of Parent and Sub, on the one hand, and the
Company, on the other hand, to effect the Merger are subject to the satisfaction
or waiver (subject to applicable law) at or prior to the Effective Time of each
of the following conditions:
(a) Approval of Company's Shareholders. To the extent required by
applicable law, this Agreement and the Merger shall have been approved and
adopted by holders of two thirds of the outstanding share of the Common
Stock of the Company entitled to vote in accordance with applicable law (if
required by applicable law) and the Company's Certificate of Incorporation
and By-Laws;
(b) HSR Act. Any waiting period (and any extension thereof) under the
HSR Act applicable to the Merger shall have expired or been terminated;
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(c) Exon-Florio. The review periods, if applicable, under Exon-Florio
shall have expired or have been terminated.
(d) Injunction. No preliminary or permanent injunction or other order
shall have been issued by any court or by any governmental or regulatory
agency, body or authority which prohibits the consummation of the Offer or
the Merger and the transactions contemplated by this Agreement and which is
in effect at the Effective Time, provided, however, that, in the case of a
decree, injunction or other order, each of the parties shall have used
reasonable best efforts to prevent the entry of any such injunction or
other order and to appeal as promptly as possible any decree, injunction or
other order that may be entered;
(e) Statutes. No statute, rule, regulation, executive order, decree or
order of any kind shall have been enacted, entered, promulgated or enforced
by any court or governmental authority which prohibits the consummation of
the Offer or the Merger or has the effect of making the purchase of the
Common Stock illegal; and
(f) Minimum Condition. Sub shall have purchased shares of Common Stock
pursuant to the Offer in a number sufficient to satisfy the Minimum
Condition.
ARTICLE VI
TERMINATION AND ABANDONMENT
6.01 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned, at any time prior to the
Effective Time, whether before or after approval of the Merger by the Company's
shareholders:
(a) by mutual consent of the Company, on the one hand, and of Parent
and Sub, on the other hand;
(b) by either Parent, on the one hand, or the Company, on the other
hand, if any court of competent jurisdiction or any governmental or
regulatory agency shall have issued an order, decree or ruling or taken any
other action permanently enjoining, restraining or otherwise prohibiting
the acceptance for payment of, or payment for, shares of Common Stock
pursuant to the Offer or the Merger and such order, decree or ruling or
other action shall have become final and nonappealable;
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<PAGE> 44
(c) by Parent, on the one hand, or the Company, on the other hand, if
the Effective Time shall not have occurred within 180 days after
commencement of the Offer (the "Outside Date") unless the Effective Time
shall not have occurred because of a material breach of any representation,
warranty, obligation, covenant, agreement or condition set forth in this
Agreement on the part of the party seeking to terminate this Agreement;
(d) by Parent if the Offer is terminated or expires in accordance with
its terms without Sub having purchased any Common Stock thereunder due to
an occurrence which would result in a failure to satisfy any of the
conditions set forth on Exhibit A hereto, unless any such failure shall
have been caused by or resulted from the failure of Parent or Sub to
perform in any material respect any covenant or agreement of either of them
contained in this Agreement or the material breach by Parent or Sub of any
representation or warranty of either of them contained in this Agreement;
(e) by the Parent, in the event of a breach by the Company of any
representation, warranty, covenant or agreement contained in this Agreement
which (A) would give rise to the failure of a condition set forth in
paragraph (e) or (g) of Annex A, (B) cannot or has not been cured prior to
the earlier of (i) 15 days after the giving of written notice of such
breach to the Company and (ii) two business days prior to the date on which
the Offer expires and (C) has not been waived by Parent pursuant to the
provisions hereof;
(f) by either Parent, on the one hand, or the Company, on the other
hand, if the Board of Directors of the Company determines that an
Acquisition Proposal constitutes a Superior Proposal and the Board believes
(and has been advised by independent outside counsel) that a failure to
terminate this Agreement and enter into an agreement to effect the Superior
Proposal would constitute a breach of its fiduciary duties; provided,
however the Company may not terminate this Agreement pursuant to this
Section 6.01(f) unless and until three Business Days have elapsed following
delivery to the other party of a written notice of such determination by
the Board of Directors and during such three Business Day period the
Company has fully cooperated with the Parent, including, without
limitation, informing the Parent of the terms and conditions of such
Superior Proposal, and the identity of the Person making such Proposal,
with the intent of enabling both parties to agree to a modification of the
terms and conditions of this Agreement so that the transactions
contemplated hereby may be effected; and provided further that at the end
of such three Business Day period the Board of Directors of the Company
determines that the Acquisition Proposal constitutes a Superior Proposal
and the Board continues to believe (and has again been advised by
independent outside counsel) that a failure to terminate this Agreement and
enter into
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<PAGE> 45
an agreement to effect the Superior Proposal would constitute a breach of
its fiduciary duties; provided further that this Agreement shall not
terminate pursuant to this Section 6.01(f) unless (i) prior to such
termination Parent has received all fees and expenses set forth in Section
7.01 hereof by wire transfer in same day funds and (ii) simultaneously with
such termination the Company enters into a definitive acquisition, merger
or similar agreement to effect the Superior Proposal which acquisition
agreement permits the Company to terminate the acquisition agreement in the
event the Board of Directors of the Company determines to effect a
transaction with Parent;
(g) by the Company, in the event of a breach by the Parent or Sub of
any representation, warranty, covenant or agreement contained in this
Agreement which cannot or has not been cured within 15 days after the
giving of written notice of such breach to the Parent and Sub, except, in
any case where such breaches are not reasonably likely to affect adversely
Parent's or Sub's ability to complete the Offer or Merger; or
(h) by the Company if Parent or Sub shall have (i) failed to commence
the Offer within ten days following the date of this Agreement, (ii)
terminated the Offer or (iii) failed to pay for shares of Common Stock
pursuant to the Offer on or prior to the Outside Date, unless in the case
of (i), (ii) or (iii) such failure shall have been caused by the failure of
the Company to satisfy the conditions set forth in paragraph (e) or (g) of
Annex A.
6.02 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 6.01 hereof by Parent or Sub, on the one hand, or
the Company, on the other hand, written notice thereof shall forthwith be given
to the other party or parties specifying the provision hereof pursuant to which
such termination is made, and this Agreement shall become void and have no
effect, and there shall be no liability hereunder on the part of Parent, Sub or
the Company, except that Sections 4.02, 3.01(p) and 7.01 hereof and this Section
6.02 shall survive any termination of this Agreement. Nothing in this Section
6.02 shall relieve any party to this Agreement of liability for breach of this
Agreement.
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ARTICLE VII
MISCELLANEOUS
7.01 Fees and Expenses. (a) Except as provided in paragraph (b) below,
all costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
(b) If this Agreement is terminated other than solely because of a
material breach of the representations or warranties of Parent or Sub or a
failure of Parent or Sub to fulfill a material covenant or condition contained
herein, then the Company shall (except as required to be earlier paid in
accordance with Section 6.01(f) hereof) within two days after termination has
occurred, pay to Parent in same day funds all of Parent's reasonably documented
out-of-pocket expenses.
(c) If this Agreement is terminated by Parent in accordance with
Section 6.01(d) or (e) hereof because of the occurrence of any of the events set
forth in clause (iv)(e), (f) or (g) of Annex A or if this Agreement is
terminated by the Company in accordance with Section 6.01(f) hereof, then the
Company shall (except as required to be earlier paid in accordance with Section
6.01(f) hereof) pay to Parent in same day funds, in addition to the amounts
required to be paid pursuant to Section 7.01(b), $12,000,000.
7.02 Representations and Warranties. The respective representations
and warranties of the Company, on the one hand, and Parent and Sub, on the other
hand, contained herein or in any certificates or other documents delivered prior
to or at the Closing shall not be deemed waived or otherwise affected by any
investigation made by any party. Each and every such representation and warranty
shall expire with, and be terminated and extinguished by, the Closing and
thereafter none of the Company, Parent or Sub shall be under any liability
whatsoever with respect to any such representation or warranty. This Section
7.02 shall have no effect upon any other obligation of the parties hereto,
whether to be performed before or after the Effective Time.
7.03 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken by or on behalf of the respective Boards of
Directors of the Company, Parent or Sub, may (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein by any other applicable party or in any document, certificate or writing
delivered pursuant hereto by any other applicable party or (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of any party to any
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<PAGE> 47
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
7.04 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by telex,
telegram or telecopier, as follows:
(a) if to the Company, to it at:
The Raymond Corporation
P.O. Box 130
South Canal Street
Greene, New York 13778-0130
Attention: President
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10016
Attention: Philip T. Ruegger, III, Esq.
(b) if to either Parent or Sub, to it at:
Lift Acquisition Company, Inc.
c/o BT Industries AB
5-595 81 Mjolby
Sweden
Attention: President and Chief
Executive Officer
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<PAGE> 48
with a copy to:
White & Case
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr., Esq.
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery unless if mailed, in which case on the third business day after the
mailing thereof except for a notice of a change of address, which shall be
effective only upon receipt thereof.
7.05 Entire Agreement. This Agreement and the annex, schedules and
other documents referred to herein or delivered pursuant hereto, collectively
contain the entire understanding of the parties hereto with respect to the
subject matter contained herein and supersede all prior agreements and
understandings, oral and written, with respect thereto, other than the
Confidentiality Agreement.
7.06 Binding Effect; Benefit; Assignment. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and, with respect to
the provisions of Section 4.12 hereof, shall inure to the benefit of the persons
or entities benefitting from the provisions thereof who are intended to be
third-party beneficiaries thereof and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties. Except as provided in the
immediately preceding sentence, nothing in this Agreement, expressed or implied,
is intended to confer on any Person other than the parties hereto or their
respective successors and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
7.07 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented in writing by the parties
hereto in any and all respects before the Effective Time (notwithstanding any
shareholder approval), by action taken by the respective Boards of Directors of
Parent, Sub and the Company or by the respective officers authorized by such
Boards of Directors, provided, however, that after any such shareholder
approval, no amendment shall be made which by law requires further approval by
such shareholders without such further approval.
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7.08 Further Actions. Each of the parties hereto agrees that, subject
to its legal obligations, it will use its best efforts to fulfill all conditions
precedent specified herein, to the extent that such conditions are within its
control, and to do all things reasonably necessary to consummate the
transactions contemplated hereby.
7.09 Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only, do not constitute
a part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
7.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
7.11 Applicable Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws rules
thereof.
7.12 Severability. If any term, provision, covenant or restriction
contained in 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
contained in this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
7.13 Certain Definitions. (a) "Person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization, a group and a government or other department or
agency thereof.
(b) "Subsidiary" with respect to the Company, shall mean and include
(x) any partnership of which the Company or any Subsidiary is a general partner
or (y) any other entity in which the Company or any of its Subsidiaries owns or
has the power to vote 50% or more of the equity interests in such entity having
general voting power to participate in the election of the governing body of
such entity.
7.14 Parent Guarantee. Parent agrees to take all action necessary to
cause Sub to perform all of its agreement, covenants and obligations under this
Agreement. Parent shall be liable for any breach of any representation,
warranty, agreement, covenant or obligation of Sub under this Agreement.
7.15 Submission to Jurisdiction. Each party hereto hereby irrevocably
and unconditionally:
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<PAGE> 50
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the general jurisdiction of the courts of the
State of New York sitting in the City of New York, the courts of the United
States of America for the Southern District of New York and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
will be in accordance with the laws of the State of New York and agrees to
appoint an agent for service of process in the State of New York within 20
business days of the date hereof;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law.
[SIGNATURE PAGE FOLLOWS]
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<PAGE> 51
IN WITNESS WHEREOF, each of Parent, Sub and the Company have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, all as of the date first above written.
BT INDUSTRIES AB
By /s/ Carl-Erik Ridderstrale
------------------------------------------
Name: Carl-Erik Ridderstrale
Title: President and Chief Executive Officer
By /s/ Per Zaunders
------------------------------------------
Name: Per Zaunders
Title: Vice President and Chief Financial
Officer
LIFT ACQUISITION COMPANY, INC.
By /s/ Carl-Erik Ridderstrale
------------------------------------------
Name: Carl-Erik Ridderstrale
Title: President
THE RAYMOND CORPORATION
By /s/ Ross K. Colquhoun
------------------------------------------
Name: Ross K. Colquhoun
Title: Chairman of the Board of Directors
and Chief Executive Officer
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<PAGE> 52
ANNEX A
to
Agreement and
Plan of Merger
The capitalized terms used in this Annex A shall have the meanings set
forth in the Agreement to which it is annexed, except that the term "Merger
Agreement" shall be deemed to refer to the Agreement to which this Annex A is
appended and "Purchaser" shall be deemed to refer to Sub.
Notwithstanding any other provision of the Offer or the Merger
Agreement, Purchaser shall not be required to accept for payment or subject to
any applicable rules and regulations of the Commission, including Rule 14e-1c
under the Exchange Act, pay for any shares of Common Stock tendered pursuant to
the Offer and may terminate or amend the Offer and may postpone the acceptance
of, and payment for, shares of Common Stock, if (i) there shall not have been
validly tendered and not withdrawn prior to the expiration of the Offer a number
of shares of Common Stock which, together with shares of Common Stock owned by
Parent or Purchaser (or any affiliate of Parent or Purchaser), represent
two-thirds of the total voting power of all shares of capital stock of the
Company outstanding on a fully diluted basis (the "Minimum Condition"), (ii) any
applicable waiting period (and any extension thereof) under the HSR Act shall
not have expired or been terminated (the "HSR Condition"), (iii) any applicable
waiting period under Exon-Florio shall not have expired or been terminated (the
"Exon-Florio condition") or (iv) if, at any time on or after the date of the
Merger Agreement and at or before the time of payment for any such shares of
Common Stock (whether or not any shares of Common Stock have theretofore been
accepted for payment or paid for pursuant to the Offer) any of the following
shall occur:
(a) there shall be threatened, instituted or pending any action or
proceeding by any government or governmental authority or agency, domestic
or foreign, or by any other Person, domestic or foreign, before any court
of competent jurisdiction or governmental authority or agency, domestic or
foreign, (i) challenging or seeking to, or which could reasonably be
expected to make illegal, impede, delay or otherwise directly or indirectly
restrain, prohibit or make materially more costly the Offer or the Merger
or seeking to obtain material damages, (ii) seeking to prohibit or
materially limit the ownership or operation by Parent or Purchaser of all
or any material portion of the business or assets of the Company and its
Subsidiaries taken as a whole or to compel Parent or Purchaser to dispose
of or hold separately all or any material portion of the business or assets
of Parent or the Company and its Subsidiaries taken as a whole, or seeking
to impose any limitation on the ability of Parent or Purchaser to conduct
its business or own such assets, (iii) seeking to impose limitations on the
ability of Parent or Purchaser effectively to exercise full rights of
ownership of the shares of Common Stock, including, without limitation, the
right to vote any shares of Common Stock acquired or owned by Sub or Parent
on all matters properly presented to the Company's shareholders, (iv)
seeking to require divestiture by Parent or Purchaser of any shares of
Common Stock; (v) seeking any material diminution in the
<PAGE> 53
ANNEX A
Page A-2
benefits expected to be derived by Parent or Purchaser as a result of the
transactions contemplated by the Offer or the Merger, (vi) otherwise
directly or indirectly relating to the Offer or the Merger and which, would
have a material adverse effect on the Condition of the Company and its
Subsidiaries taken as a whole or Parent and its subsidiaries taken as a
whole or the value of the shares of Common Stock, or (vii) otherwise
materially adversely affecting the Condition of the Company and its
Subsidiaries taken as a whole;
(b) there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed,
enacted, enforced, promulgated, amended, issued or deemed applicable to (i)
Parent, Purchaser, the Company or any Subsidiary or (ii) the Offer or the
Merger, by any legislative body, court, government or governmental,
administrative or regulatory authority or agency, domestic or foreign,
other than the routine application of the waiting period provisions of the
HSR Act or Exon-Florio to the Offer or to the Merger, which could
reasonably be expected to directly or indirectly, result in any of the
consequences referred to in clauses (i) through (vii) of paragraph (a)
above;
(c) any change shall have occurred, or Parent shall have become aware
of any fact, that has had or would have a material adverse effect on the
Condition of the Company and its Subsidiaries taken as a whole;
(d) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market (excluding any coordinated
trading halt triggered solely as a result of a specified decrease in a
market index), (ii) any decline in either the Dow Jones Industrial Average
or the Standard & Poor's Index of 500 Industrial Companies or in the New
York Stock Exchange Composite Index in excess of 20% measured from the
close of business on the trading day next preceding the date of the Merger
Agreement, (iii) any material adverse change in the general political,
market, economic or financial conditions in the United States or abroad
that would have a material adverse effect upon the Condition of the Company
and its Subsidiaries taken as a whole, (iv) any material change in United
States or any other currency exchange rates or a suspension of, or
limitation on, the markets therefor, (v) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States or any other jurisdiction in which any bank or other financial
institution in any manner involved with the financing of the Offer or the
Merger is incorporated, (vi) any material limitation (whether or not
mandatory) by any Federal, state or foreign
<PAGE> 54
ANNEX A
Page A-3
governmental authority or agency on, the extension of credit by banks or
other lending institutions, (vii) a commencement or escalation of a war or
armed hostilities or other national or international calamity directly or
indirectly involving the United States or (viii) in the case of any of the
foregoing existing at the time of the commencement of the Offer, an
acceleration or worsening thereof;
(e) any of the representations or warranties made by the Company in
the Merger Agreement that are qualified as to materiality shall be untrue
or incorrect in any respect or any such representations and warranties that
are not so qualified shall be untrue or incorrect in any material respect,
in each case as of the date of this Agreement and the scheduled expiration
date of the Offer, except (i) for changes specifically permitted by this
Agreement and (ii) that those representations and warranties which address
matters only as of a particular date shall remain true and correct as of
such date;
(f) the Company's Board of Directors shall have withdrawn, modified or
amended in any respect adverse to Parent or Purchaser its recommendation of
the Offer or the Merger, or shall have resolved to do so;
(g) the Company shall have failed to perform in any material respect
any material obligation or to comply in any material respect with any
material agreement or material covenant of the Company to be performed or
complied with by it under this Agreement; or
(h) the Merger Agreement shall have been terminated in accordance with
its terms,
which, in the reasonable judgment of Purchaser, in any such case and regardless
of the circumstances giving rise to any such condition, makes it inadvisable to
proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of the Parent and
the Purchaser and may be asserted by the Parent of the Purchaser, or may be
waived by the Parent or the Purchaser, in whole or in part at any time and from
time to time in its sole discretion (subject to the terms of the Merger
Agreement). The failure by the 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. Any determination by the Parent or the Purchaser
concerning the events described in this Annex A will be final and binding upon
all parties.
<PAGE> 55
Exhibit 6
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment") is
entered into as of June 16, 1997 by and between THE RAYMOND CORPORATION, a New
York Corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY,
as rights agent (the "Rights Agent"), amending the Rights Agreement, dated as of
March 1, 1997, between the Company and the Rights Agent (the "Rights
Agreement").
Recitals of the Company:
The Company has duly authorized the execution and delivery of this
Amendment, and all things necessary to make this Amendment a valid agreement of
the Company have been done. This Amendment is entered into pursuant to Section
27 of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Defined Terms. Terms defined in the Rights Agreement and used
herein shall have the meanings given to them in the Rights Agreement.
2. Amendments to Section 1. (a) Section 1(a) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, so long
as the Merger Agreement has not been terminated pursuant to the terms
thereof, or at any time after the purchase of shares of Common Stock
pursuant to the Offer, neither BT Industries AB nor any Affiliate of BT
Industries AB shall be deemed to be an Acquiring Person solely by reason
of the execution, delivery or performance of the Merger Agreement or the
announcement, making or consummation of the Offer, the acquisition of
Common Stock pursuant to the Offer or the Merger, the consummation of the
Merger or any other transactions contemplated by the Merger Agreement."
(b) Section 1 of the Rights Agreement is amended to add the
following provisions at the end thereof:
"(p) For purposes of this Agreement:
'Effective Time' shall have the meaning assigned to such
term in the Merger Agreement;
'Merger Agreement' shall mean the Agreement and Plan of
Merger dated as of June 16, 1997 among BT Industries AB, a
corporation incorporated under the laws of Sweden,
<PAGE> 56
Lift Acquisition Company, Inc., a New York corporation and a wholly
owned subsidiary of BT Industries AB, and the Company, as amended
from time to time in accordance with its terms;
'Merger' shall have the meaning assigned to such term in
the Merger Agreement;
'Offer' shall have the meaning assigned to such term in
the Merger Agreement; and
1. Amendment of Section 3(a). Section 3(a) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, so long as the Merger Agreement has not been terminated
pursuant to the terms thereof, or at any time after the purchase of
shares of Common Stock pursuant to the Offer, a Distribution Date
shall not be deemed to have occurred solely as the result of the
execution, delivery or performance of the Merger Agreement or the
announcement, making or consummation of the Offer, the acquisition
of Common Shares pursuant to the Offer or the Merger, the
consummation of the Merger or any other transactions contemplated by
the Merger Agreement."
2. Amendment of Section 7(a). Section 7(a) of the Rights Agreement
is amended by deleting the word "or" in the penultimate line of such subsection
and substituting in its place", "and inserting immediately after the word
"hereof" in the last line thereof the following clause: "or (iv) immediately
after the acquisition of shares of Common Stock pursuant to the Offer (the
earliest of (i), (ii), (iii) or (iv) being herein referred to as the "Expiration
Date"). Upon the Expiration Date, the Rights shall expire."
3. Effectiveness. This Amendment shall be deemed effective as of
June 16, 1997 as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
4. Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such state. This
Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed an original and all such
counterparts shall together constitute but one and the same instrument.
-2-
<PAGE> 57
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the day and year first above written.
Attest: THE RAYMOND CORPORATION
/s/ Paul J. Sternberg /s/ James J. Malvaso
- ------------------------------ ------------------------------
By: Paul J. Sternberg By: James J. Malvaso
Title: Vice President, General Title:President and Chief
Counsel and Secretary Operating Officer
AMERICAN STOCK TRUST &
Attest: TRANSFER COMPANY
/s/ Susan Silber /s/ Herbert J. Lemmer
- ------------------------------ ------------------------------
By: Susan Silber By: Herbert J. Lemmer
Title: Assistant Secretary Title: Vice President
- 3 -
<PAGE> 58
EXHIBIT B
CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
The Restated and Amended Certificate of Incorporation of The Raymond
Corporation shall be amended to read as follows:
FIRST: The name of the corporation shall be THE RAYMOND CORPORATION
(the "Corporation").
SECOND: The purpose of the Corporation shall be to engage in any lawful
act or activity for which corporations may be organized under the BCL, provided
that the Corporation is not formed to engage in any act or activity requiring
the consent or approval of any official, department, board, agency or other
body without such prior consent or approval first being obtained.
THIRD: The duration of the Corporation shall be perpetual.
FOURTH: The office of the Corporation in the State of New York shall be
located in the Village of Greene, County of Chenango.
FIFTH: The total authorized capital stock of the Corporation shall be
One Thousand shares of Common Stock, par value one cent ($0.01) per share.
No holder of any of the shares of the capital stock of the Corporation
shall be entitled as of right to purchase or to subscribe for any unissued
stock of any class, or any additional shares of any class, to be issued by
reason of any increase of the authorized capital stock of the Corporation of
any class, or bonds, certificates of indebtedness, debentures, or other
securities convertible into stock of the Corporation or carrying any right to
purchase stock of any class, but any such unissued stock, or such additional
authorized issue to any stock, or of other securities convertible into stock or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolutions of the Board of Directors, to such persons, firms, corporations, or
associations and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its discretion.
SIXTH: The By-Laws may be adopted, amended or repealed by the Board of
Directors by a vote of a majority of the directors then holding office.
<PAGE> 59
EXHIBIT B
Page 2
SEVENTH: The Secretary of State is designated as the agent of the
Corporation upon whom process against the Corporation may be served, and the
address to which the Secretary of State shall mail a copy of any process
against the Corporation served upon the Secretary of State is The Raymond
Corporation, Greene, New York.
EIGHTH: A director of the Corporation shall not be personally liable
to the Corporation or its shareholders for damages for any breach of duty in
such capacity except that the liability of a director shall not be eliminated
or limited if a judgment or other final adjudication adverse to the director
establishes that his/her acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that the director
personally gained in fact a financial profit or other advantage to which the
director was not legally entitled or that his/her acts violated Section 719 of
the BCL. If the BCL is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of directors of the Corporation shall be eliminated or limited to the fullest
extent permitted by the BCL, as so amended. Any repeal of this Article, or any
amendment of this Article insofar as it would in any way enlarge the liability
of any director of the Corporation, shall be ineffective with respect to any
acts or omissions occurring prior to the date of such repeal or amendment.
NINTH: The Corporation shall, to the fullest extent permitted by
applicable law, indemnify any person who is or was made, or threatened to be
made, a party to an action or proceeding, whether civil or criminal, including
an action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the Corporation is
serving or served in any capacity at the request of the Corporation, by reason
of the fact that he/she, his/her testator or intestate, is or was a director or
officer of the Corporation, or is serving or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, against judgments, fines, amounts paid in settlement and
expenses, including attorneys' fees, or any appeal therein. Permissible
indemnification may be provided, as a matter of discretion, to any other person
in accordance with the provisions of the BCL, as from time to time amended, or
other applicable law. Any director or officer of the Corporation serving
(i) another corporation, of which a majority of the shares entitled to vote
in the election of its directors is held, directly or indirectly, by the
Corporation, or (ii) any employee benefit plan of either, in any capacity,
shall be deemed to be doing so at the request of the Corporation.
<PAGE> 60
EXHIBIT B
Page 3
Any person entitled to be indemnified as a matter of right pursuant to
this provision may elect, to the extent permitted by law, to have the right to
indemnification interpreted on the basis of the applicable law in effect at the
time of the occurrence of the event or events giving rise to the action or
proceeding, or on the basis of the applicable law in effect at the time
indemnification is sought. The right to be indemnified pursuant to this
provision shall be a contract right and shall include the right to be paid by
the Corporation expenses incurred in defending any action or proceeding in
advance of its final disposition; provided, however, that, the payment of such
expenses incurred by a director or officer in his/her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including without limitation, service
to an employee benefit plan) in advance of the final disposition of such action
or proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should ultimately be determined that such director or officer
is not entitled to be indemnified under this provision.
If a claim is not paid in full by the Corporation within ninety days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled also to be paid the expense of prosecuting such claim. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he/she has met the applicable standard of conduct, nor
an actual determination by the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that claimant had not met the applicable standard of conduct.
