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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
(RULE 14D-101)
AMENDMENT NO. 10
TO
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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BRUNSWICK TECHNOLOGIES, INC.
(NAME OF SUBJECT COMPANY)
BRUNSWICK TECHNOLOGIES, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(TITLE OF CLASS OF SECURITIES)
117394 10 6
(CUSIP NUMBER OF COMMON STOCK)
MARTIN S. GRIMNES
CHIEF EXECUTIVE OFFICER
BRUNSWICK TECHNOLOGIES, INC.
43 BIBBER PARKWAY
BRUNSWICK, ME 04011
(207) 729-7792
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
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WITH A COPY TO:
Robert A. Trevisani, Esquire
Gadsby Hannah LLP
225 Franklin Street
Boston, MA 02110
(617) 345-7000
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
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Brunswick Technologies, Inc., a Maine corporation (the "Company" hereby
amends and supplements its Solicitation/Recommendation Statement on Schedule
14D-9 dated May 3, 2000 (as amended by Amendments No. 1 through 9, the "Schedule
14D-9") relating to the tender offer by VA Acquisition Corporation, (the
"Purchaser") and a wholly-owned subsidiary of CertainTeed Corporation, a
Delaware Corporation (the "Parent") both of which are indirect wholly owned
subsidiaries of Compagnie de Saint-Gobain, a French corporation, to purchase
outstanding shares of common stock, par value $.0001 per share (the "Shares"),
of the Company at a price of $8.50 per share, net to the sellers in cash (the
"Improved Offer Price"), upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated April 20, 2000 and in the related Letter of
Transmittal as disclosed in the Tender Offer Statement on Schedule 14D-1 dated
April 20, 2000, as amended by Amendments No. 1 through 18 to Schedule 14D-1 and
as an amended and supplemented by the Offer Supplement dated June 15, 2000
(collectively the "Improved Offer"). All capitalized terms shall have the
meanings assigned to them in the Schedule 14D-9, as amended to date, unless
otherwise indicated herein.
ITEM 2. IDENTITY AND BACKGROUND OF FILING PERSON
Item 2 is hereby amended by the addition of the following:
The Improved Offer is conditioned upon, among other things, (1) there
having been validly tendered and not withdrawn prior to the Expiration Date (as
defined in the Improved Offer Materials) a number of Shares which, together with
Shares then owned by Purchaser, Parent, Saint-Gobain and Vetrotex CertainTeed
Corporation, an affiliate of Parent ("Vetrotex"), would represent at least a
majority of the total number of outstanding Shares on a fully diluted basis
(including the exercise of all outstanding options) (the "Minimum Condition");
(2) satisfaction by the Purchaser, in its sole discretion, that Section 611-A of
the Maine Business Corporation Act ("MBCA") is inapplicable to the Improved
Offer and any subsequent business transaction involving Purchaser, Saint-Gobain,
Parent or their affiliates and the Company, including the Merger; and (3) the
Company's Rights having been redeemed by the Company's Board of Directors or
Purchaser being satisfied, in its sole discretion, that the Rights are
inapplicable to the Improved Offer and any subsequent business transaction
involving Purchaser, Parent, Saint-Gobain or their affiliates and the Company,
including the Merger.
The Board of Directors of the Company has unanimously determined that each
of the Improved Offer, the Merger and the Merger Agreement described herein is
fair to, and in the best interests of, the Company and its Shareholders, and has
approved the Improved Offer, the Merger and the Merger Agreement. The Company's
Board of Directors unanimously recommends that the Company's shareholders accept
the Improved Offer and tender their shares pursuant to the Improved Offer.
The Improved Offer is being made pursuant to an Agreement and Plan of
Merger, dated as of June 12, 2000 (the "Merger Agreement"), among the Company,
Parent and Purchaser. The Merger Agreement provides, among other things, that as
soon as practicable after the consummation of the Improved Offer, and in
accordance with the applicable provisions of the MBCA, Purchaser will be merged
with and into the Company (the "Merger"), with the Company continuing as the
surviving corporation (the "Surviving Corporation"), unless a short-form merger
can be effected without shareholder approval, in which case the Company will be
merged into the Purchaser, which will then be the Surviving Corporation.
Thereupon, each outstanding Share (other than Dissenting Shares (as hereinafter
defined), Shares held by the Company as treasury stock and Shares owned by
Parent, Purchaser or Saint-Gobain or any of their subsidiaries or affiliates, or
any subsidiary of the Company) will be converted into and represent the right to
receive $8.50 in cash or any higher price per Share that may be paid in the
Improved Offer, without interest.
As of June 9, 2000, there were outstanding 5,234,415 Shares and outstanding
options to purchase an aggregate of 819,672 Shares, of which 471,499 are
currently exercisable. Accordingly, Purchaser believes that the Minimum
Condition would be satisfied if approximately 2,139,212 Shares (constituting a
majority of all outstanding Shares on a fully diluted basis including the
exercise of all currently exercisable options) are validly tendered pursuant to
the Improved Offer and not withdrawn.
The purpose of the Improved Offer is to acquire for cash as many
outstanding Shares as possible as a first step in acquiring the entire equity
interest in the Company. If all of the conditions to the Improved Offer are not
satisfied or waived on any scheduled Expiration Date of the Improved Offer,
Purchaser will extend the
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Improved Offer (but not beyond July 31, 2000) until such conditions are
satisfied or waived; provided that (i) such conditions are reasonably capable of
being satisfied, (ii) the Company exercises its reasonable best efforts to cause
such conditions to be satisfied, (iii) an Acquisition Proposal (as defined
below) shall not have been publicly announced and not withdrawn as of such
scheduled Expiration Date, and (iv) the Company is in compliance with all of its
covenants in the Merger Agreement.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including the approval and adoption of the Merger Agreement
by the requisite vote of the shareholders of the Company, if required by the
MBCA. Under the MBCA, if Purchaser acquires, pursuant to the Improved Offer or
otherwise, at least 90% of the Shares then outstanding, it will be able to
effect the Merger without a vote of the shareholders. In such event, Parent,
Purchaser and the Company have agreed in the Merger Agreement to take, subject
to the satisfaction or (to the extent permitted under the Merger Agreement)
waiver of the conditions set forth in the Merger Agreement, all necessary and
appropriate action to cause the Merger to be effective as soon as practicable
after the acceptance for payment and purchase of Shares pursuant to the Improved
Offer, without a meeting of shareholders of the Company, in accordance with
Section 904 of the MBCA. If, pursuant to the Improved Offer, or otherwise,
Purchaser does not acquire Shares that, taken together with Shares owned by
Parent, Saint-Gobain and their affiliates represent at least 90% of the Shares
then outstanding as of any scheduled Expiration Date of the Improved Offer, but
acquires at least a majority, then Purchaser and Parent would thereafter seek
the approval of the Merger and the Merger Agreement by a vote of the
shareholders of the Company. The required vote to effect the Merger is a simple
majority of outstanding shares, and if Purchaser and Parent own a majority, the
likely outcome of the vote is approval. Under such circumstances, a somewhat
longer period of time may be required to effect the Merger. For a description of
the conditions set forth in the Merger Agreement and the MBCA as it relates to
this transaction, see Item 3 below.
As a condition and inducement to Parent's and Purchaser's entering into the
Merger Agreement, all directors of the Company have agreed to enter into
Shareholder Agreements with Purchaser (each, a "Shareholder Agreement") pursuant
to which, among other things, they will agree to tender their Shares in the
Improved Offer and grant proxies to Purchaser in respect of their Shares. For a
description of the Shareholder Agreements, see Item 3 below. As a result of the
Shareholder Agreements, the Purchaser may be deemed to be the beneficial owner
of the Shares beneficially owned by the directors.
THE IMPROVED OFFER MATERIALS MAILED TO YOU AND THE SCHEDULE 14D-9, AS
AMENDED, CONTAIN IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY AND IN THEIR
ENTIRETY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE IMPROVED OFFER.
ITEM 3. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
Item 3 is hereby amended by the addition of the following:
On or about April 17, 2000, Purchaser and Parent delivered to the Company
demands for certain shareholder lists and related information to be produced
pursuant to Rule 14a-7 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and under the MBCA for use in the dissemination of proxy
materials in connection with the Company's annual meeting of shareholders
scheduled for May 16, 2000. Purchaser and Parent also subsequently delivered to
the Company further demands for certain shareholder lists and information
relating to shareholders of record on May 2, 2000 to be produced pursuant to
Rule 14a-7 under the Exchange Act and under the MBCA for use in the
dissemination of proxy materials in connection with the special meeting of
shareholders of the Company scheduled for June 16, 2000. The Company timely
responded to these demands and furnished the requested information.
On May 1 and 2, 2000, Mr. Buisson of Saint-Gobain was in Maine visiting
with the governor and members of the legislature in connection with the special
emergency legislation being sought by the Company, which effort, had it been
successful, would have effectively postponed the June 16, 2000 special meeting
of shareholders. During the course of that visit, Mr. Buisson communicated, both
through his counsel to counsel for the Company, as well as through the governor
and at least one member of the legislature, that he would be
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willing to meet with Mr. Grimnes while he was in Maine. After Mr. Buisson had
returned to Paris, Mr. Grimnes indicated, through similar intermediaries, that
he would be willing to have such a meeting. Mr. Buisson's schedule, however, did
not permit such a meeting before June 7, 2000. Such a meeting was never
scheduled, although Mr. Grimnes made one phone call to Mr. Buisson during that
interim period for the purpose of commenting on an unrelated matter.
On May 2, 2000, Vetrotex sent a letter to the Company's shareholders urging
defeat of the stock option plan amendment at the Company's annual meeting of
shareholders. This letter characterized the proposed plan amendment as an
additional anti-takeover measure blocking the Offer.
On or about May 5, 2000, the Company's investment banker, McDonald
Investments Inc. ("McDonald") made contact with the investment banker for
Purchaser and Parent, Lehman Brothers, Inc. ("Lehman") to indicate that the
Company would explore the possible sale of the Company, possibly through a
bid/auction process, but might also invite other strategic alternatives. Mr. Raj
Trikha, a Managing Director of McDonald, indicated to Mr. Scott Mohr, a Managing
Director of Lehman, that Purchaser and Parent were welcome to participate in the
process provided they signed a confidentiality agreement, following which they
would be invited to review data which included non-public information in a data
room set up for that purpose at the Boston offices of the Gadsby Hannah LLP law
firm (the "Data Room") and would also be invited to participate in a management
presentation which would include financial projections.
On May 8, 2000, Parent sent an "open letter" to the Company's Board of
Directors and published it in a press release. The letter addressed both social
issues and Vetrotex's opposition to the proposed amendment of the Company's
stock option plan to increase the number of available shares for grant under the
stock option plan. With respect to the first subject, Parent indicated that both
it and Saint-Gobain were committed to growing the operations of the Company,
especially in Brunswick, Maine; that they intended to honor all existing
customer and raw materials supply agreements; and that they appreciated that the
value of the Company lies in its employees. With respect to the second subject,
concern was expressed that making additional shares subject to a stock option
plan would enable the Company's Board of Directors to follow its past practice
of concentrating options among senior management, and that if such a large
number of new options were granted at below market prices, equity for all
shareholders of the Company would be diluted.
On May 8, 2000, Mr. Grimnes wrote a letter to George B. Amoss, a Vice
President of Parent and Purchaser, responding to the "open letter" to the
Company's Directors. He indicated that Parent had an open invitation to meet
with the Company's Board of Directors to demonstrate Parent's commitment to the
social issues addressed in the "open letter." He further indicated that the
Company would continue to aggressively explore strategic alternatives to enhance
value for the shareholders in a timely manner and that if Parent wished to
participate in this orderly and fair process, it should contact the Company
immediately.
On May 16, 2000, representatives of Purchaser, Parent and Vetrotex,
together with their counsel and representatives of their proxy solicitation
firm, attended the annual meeting of shareholders of the Company held in
Portland, Maine. During the course of that meeting, none of these
representatives publicly commented nor were there any private discussions
between them and representatives of the Company other than general exchanges of
pleasantries between counsel for the respective parties.
During the period May 9, 2000 through May 17, 2000, counsel for Purchaser
and Parent negotiated the terms of a confidentiality agreement with McDonald and
the Company's counsel. Such an agreement was entered into with the Company on
May 17, 2000 (the "Confidentiality Agreement"). On May 18, 2000, representatives
of Purchaser and Parent, together with counsel and representatives of Lehman,
reviewed materials provided on behalf of the Company in the Data Room. Prior to
that visit, Purchaser and Parent sent a written communication to the Company
requesting that certain materials be removed from the Data Room prior to that
visit, particularly any documents which would indicate raw material and finished
goods prices and margins, because of the relationship of Vetrotex and the
Company as supplier and customer. On May 19, 2000, representatives of Purchaser
and Parent, together with representatives of Lehman, attended the management
presentation session and engaged in a follow-up question and answer session with
various representatives of the Company and McDonald. These sessions included
presentation of the Company's projections of future sales and margins, although
those representatives of Purchaser and Parent in attendance
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who had also attended the Company's annual meeting of shareholders believed that
most of the projections furnished in the management presentation duplicated
projections which had been presented at the annual meeting of shareholders.
Representatives of the Company asked representatives of Purchaser and Parent
about the Purchaser's and Parent's plans for the Company and its employees.
Representatives of the Company were provided with general information with
respect to benefit plans and compensation arrangements maintained by Parent and
its U.S. affiliates.
On May 22, 2000, Mr. Trikha of McDonald spoke with Mr. Mohr of Lehman as a
follow-up to the management presentation. He indicated there was a matrix of
other issues to be addressed as part of any bid and that these issues included
plans for the three facilities of the Company; plans for its carbon business;
plans for its European business; how the Company would be integrated with Cerbay
(a Saint-Gobain company); what the proposed employee benefit package would be;
the organizational structure of a combination with the Company; the distribution
channel strategy in North America; and how the Company would be measured (e.g.,
pounds of product shipped; revenue growth; cash flow). He also indicated that a
bid procedure letter would be sent shortly and would call for bids by the close
of business on May 30, 2000.
Subsequent to these events, McDonald notified Lehman, both verbally and in
a letter dated May 23, 2000, that if Purchaser and Parent wished to participate
in the bidding process, their written bid (including price), a letter of intent
to enter into an agreement at such price, proposals on certain social issues,
proposed closing schedule and any material conditions to closing, would be due
by the close of business on May 30, 2000.
On May 26, 2000, Mr. Amoss sent a letter to the Board of Directors of the
Company. The letter summarized some of the defensive measures undertaken by that
Board of Directors to counter the Offer and indicated that in the near future
the Board of Directors would be called upon to make important decisions about
(i) the handling of the special meeting of shareholders scheduled for June 16,
2000, (ii) the evaluation of any competing alternatives to the Offer and (iii)
the redemption of the Rights under the Rights Agreement. The letter continued
that Parent and Vetrotex assumed that each director was personally familiar with
the legal duties to which directors are held in the context of these kinds of
decisions and that they have further assumed that the directors would evaluate
those decisions in light of their fundamental duty to place the interests of the
shareholders first.
On or about May 30, 2000, Lehman communicated with McDonald that Purchaser
and Parent declined to submit a written bid for several reasons, one being that
they would be bidding against themselves because of their pending Offer.
McDonald indicated it might have a few other proposals, and if Purchaser and
Parent did not submit a written bid, their indications of interest, even if
expressed verbally, could not be considered. At no time was any increase in the
Offer price communicated, either in writing or verbally, by Lehman, Purchaser or
Parent. Purchaser and Parent believed their evaluation of the material made
available in the Data Room and during the management presentation did not, in
their judgment, justify an increase in the Offer price.
On May 31, 2000, Vetrotex sent a letter to the shareholders of the Company
urging support of the Vetrotex proposals to be voted upon at the special meeting
of shareholders to be held on June 16, 2000; comparing the performance of the
Company's stock in the market with other comparable measures of investment
performance; and urging that support of the Vetrotex proposals will protect the
shareholders' investment and remove any obstacles that would block a sale of the
Company.
On June 2, 2000, Mr. Peter Walmsley, in his capacity as Chairman of the
Independent Committee of the Company's Board of Directors, wrote a letter to Mr.
Amoss in response to his letter of May 26. This letter reiterated the
Committee's interpretation of past events and its question of why Parent was not
willing to wait for two weeks in order to enter into a negotiated transaction in
April; questioned the manner in which Parent calculated the Offer price; and
inquired as to the effect of the proposed combination on the Company's other
constituencies. The letter also addressed the rationale used by the Company's
Board of Directors to institute some of the defensive measures and why it
entered into the employment and severance agreement with key employees, which it
felt was necessary to retain them during a very difficult time. The letter ended
on a very encouraging note, indicating that the Board of Directors of the
Company continued to believe that Saint-Gobain would be an appropriate partner
with the Company if the terms were fair to all of the Company
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shareholders and other constituents. Mr. Walmsley further indicated that he had
been informed through the Company's investment bankers that Parent was willing
to discuss an improvement in its Offer and, therefore, principals of the Company
were prepared to meet with principals of Parent and its affiliates on June 7,
2000 for the purpose of exploring a basis upon which the parties could enter
into a mutually acceptable transaction.
During the end of the preceding week and into the week beginning June 5,
2000, McDonald and Lehman had several conversations related to a possible
meeting between the principals of the parties and attempting to schedule same.
Mr. Grimnes confirmed in a note to Mr. Buisson on June 5, 2000, that
representatives of Purchaser and Parent would meet with representatives of the
Company, together with representatives from McDonald, Lehman and respective
counsel for the parties, at the John F. Kennedy Airport in New York on the
morning of Wednesday, June 7, 2000.
On Wednesday morning, June 7, 2000, at a hotel near John F. Kennedy
Airport, Roberto Caliari, Jean-Philippe Buisson, George Amoss and John Mesher,
all representing Purchaser and Parent, together with Parent's advisors, Scott
Mohr of Lehman and Peter Clauss of Pepper Hamilton LLP, met with Peter Walmsley,
Richard Corbin and Martin Grimnes, directors of the Company, their counsel,
Daniel McKay of Eaton, Peabody, Bradford & Veague of Bangor, Maine, and Raj
Trikha of McDonald. The meeting lasted most of the day and consisted of a series
of meetings between the two groups interspersed with separate caucuses by each
group. During one of these breakout sessions, the Company convened its remaining
directors in a telephone conference call. During the meeting, the parties
tentatively agreed that Purchaser and Parent would increase the Offer price from
$8.00 to $8.50 per Share in exchange for a negotiated transaction to be
evidenced by a definitive agreement to be promptly prepared by counsel for
Purchaser and Parent and then negotiated with counsel for the Company. In
addition, Purchaser and Parent indicated that the increased Offer price was
contingent on a best efforts undertaking by the Company to obtain non-compete
agreements from its executive officers, for which each would be paid a lump sum
payment; that all of the directors enter into a form of shareholder agreement
pursuant to which they would tender their shares in support of the Improved
Offer and would further agree to vote their shares in support of the Improved
Offer and the Merger; that the Company use its best efforts to obtain an
agreement from those executives who were parties to the employment and severance
agreements entered into with the Company on April 14, 2000 to deem the Improved
Offer and the Merger as a "Non-Hostile Change in Control" for purposes of those
agreements; and that the Company would use its best efforts to convene its Board
of Directors on June 7 to at least agree with the proposal in principle.
After the Company's Board of Directors had been convened by telephone
conference, these conditions were modified. Purchaser and Parent agreed they
wanted an appropriate amendment to the employment and severance agreement
entered into on April 14, 2000 between the Company and Martin Grimnes, but did
not require similar amendments to the agreements entered into with the other
executive officers. The Board of Directors of the Company indicated they would
use their best efforts to encourage Mr. Grimnes to renegotiate his agreement;
they would require a written commitment from Purchaser and Parent of no present
intention to close the three facilities maintained by the Company; and that in
exchange for a breakup fee payable to Purchaser and Parent, there should be an
element of reciprocity in reimbursement of transaction expenses if Purchaser and
Parent determined not to proceed with the Improved Offer or Merger without good
reason. It was further clarified that if agreement along these lines could be
reached, the Company's Board of Directors would take appropriate action to
neutralize the Rights Agreement and any impediment in Section 611-A of the MBCA
in relation to the Improved Offer and the Merger.
On Thursday, June 8, 2000, the Company's Board of Directors voted
unanimously in favor of such proposals and conditions, conditioned upon an
agreement on a mutually acceptable definitive agreement. On the same day,
counsel for Purchaser and Parent circulated draft agreements to counsel for the
Company and on Friday, June 9, counsel for the parties met in Berwyn,
Pennsylvania at the suburban offices of Pepper Hamilton LLP for most of the day
negotiating these agreements. Later that evening and during Saturday and Sunday,
June 10-11, 2000, revisions to the draft agreements and negotiations continued.
On Sunday evening, the Company's Board of Directors convened by telephonic
conference, and at the conclusion of that meeting counsel for the parties
continued to negotiate open issues, which negotiations continued into Monday,
June 12, 2000. Finally, at another telephonic conference meeting of the
Company's Board of Directors beginning at
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8:00 p.m. on June 12, 2000, the definitive merger agreement and form of
shareholder agreement and non-compete agreement were unanimously approved, and
an exchange of signed agreements was effected shortly before midnight. Also, on
June 12, 2000, negotiations were concluded between counsel for Purchaser and
Parent and independent counsel for Mr. Grimnes, and an amendment to his
employment and severance agreement was signed and exchanged between Mr. Grimnes
and the Company. Copies of these agreements are attached as Exhibits to this
Schedule 14D-9 and a description of them follows. The Parent's and Purchaser's
Board of Directors also approved these agreements and the Improved Offer on June
12, 2000.
Prior to the opening of the markets on Tuesday, June 13, 2000, Purchaser,
Parent and the Company issued a joint press release announcing the signing of
the definitive agreement, the Improved Offer and the extended Expiration Date.
THE MERGER AGREEMENT
The following is a summary of certain provisions of the Merger Agreement, a
copy of which is filed as an Exhibit to this Schedule 14D-9. Such summary is
qualified in its entirety by reference to the Merger Agreement, which is deemed
to be incorporated by reference herein.
The Improved Offer. The Merger Agreement provides for the making of the
Improved Offer by Purchaser. The obligation of Purchaser to accept for payment
and pay for Shares tendered pursuant to the Improved Offer is subject to the
satisfaction of the Minimum Condition and certain other conditions that are
described in the Purchaser's Improved Offer materials. Purchaser has agreed
that, without the prior written consent of the Company, no change in the
Improved Offer may be made which waives the Minimum Condition, changes the form
of consideration to be paid, decreases the price per Share or the number of
Shares sought in the Improved Offer or imposes conditions to the Improved Offer
in addition to those described in the Purchaser's Improved Offer materials.
The Merger Agreement provides that, notwithstanding the foregoing, without
the consent of the Company, Purchaser will have the right to extend the Improved
Offer from time to time if, at the scheduled or extended Expiration Date of the
Improved Offer, any of the conditions to the Improved Offer shall not have been
satisfied or waived, until such conditions are satisfied or waived, including
any period required by any rule, regulation, interpretation or position of the
Commission or the staff thereof applicable to the Improved Offer or any period
required by applicable law. If all of the conditions to the Improved Offer are
not satisfied or waived on any scheduled Expiration Date of the Improved Offer,
Purchaser will extend the Improved Offer from time to time until such conditions
are satisfied or waived (but not beyond July 31, 2000), provided that (w) such
conditions are reasonably capable of being satisfied, (x) the Company exercises
its reasonable best efforts to cause such conditions to be satisfied, (y) an
Acquisition Proposal (as defined below) shall not have been publicly announced
and not withdrawn as of such scheduled Expiration Date and (z) the Company is in
compliance with all of its covenants in the Merger Agreement.
Company Action. The Merger Agreement states that the Board of Directors has
(i) unanimously determined that the Merger Agreement and the transactions
contemplated thereby, including the Improved Offer and the Merger, are fair to
and in the best interests of the Company's shareholders, (ii) unanimously
approved and adopted the Merger Agreement and the transactions contemplated
thereby, including the Improved Offer, and the Merger, in accordance with the
requirements of the MBCA and (iii) unanimously resolved to recommend acceptance
of the Improved Offer and approval and adoption of the Merger Agreement and the
Merger by the Company's shareholders. This recommendation of the Company's Board
of Directors may be withdrawn, modified or amended only if (i) the Company has
complied with the terms of the non-solicitation provisions in the Merger
Agreement, including, without limitation, the requirement that it notify Parent
promptly after its receipt of any Acquisition Proposal (as defined below), (ii)
a Superior Proposal (as defined below) is pending at the time the Company's
Board of Directors determines to take any such action, (iii) the Company's Board
of Directors determines in good faith by a majority vote, on the basis of the
advice of its outside legal counsel, that, consistent with its fiduciary duties
under applicable law, it must take such action, and (iv) the Company shall have
delivered to Parent four business days prior written notice advising Parent that
it intends to take such action. For purposes of the Merger Agreement,
"Acquisition
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Proposal" means an inquiry, offer or proposal regarding any of the following
involving the Company or any of its subsidiaries: (w) any merger, consolidation,
share exchange, recapitalization, business combination or other similar
transaction, (x) any sale, lease, exchange, transfer or other disposition of all
or substantially all the assets of the Company and its subsidiaries, taken as a
whole, in a single transaction or series of related transactions, or (y) any
tender offer or exchange offer for 25% or more of the outstanding Shares or the
filing of a registration statement under the Securities Act of 1933 (the
"Securities Act") in connection therewith. For purposes of the Merger Agreement,
"Superior Proposal" means any bona fide, unsolicited written Acquisition
Proposal for 50% or more of the outstanding Shares on terms that the Board of
Directors of the Company determines in good faith by a majority vote is more
favorable and provides greater value to the Company's shareholders than as
provided under the Merger Agreement, and such decision is made on the basis of
the advice of a financial advisor of nationally recognized reputation and takes
into account all the terms and conditions of the Acquisition Proposal, including
any break-up fees, expense reimbursement provisions and conditions to closing.
Directors. The Merger Agreement provides that promptly following the
purchase of and payment for a number of Shares that satisfies the Minimum
Condition, Parent may designate all of the directors of the Company (and each
committee thereof). At such time, the Company will also use its reasonable best
efforts to cause individual directors designated by Parent to constitute the
entire Board of Directors of the Company and each board of directors of each
subsidiary of the Company. The Company's Information Statement pursuant to
Section 14(f) of the Exchange Act with respect to such proposed change of
directors is attached as Annex C and is filed as an Exhibit to this Schedule
14D-9.
The Merger. The Merger Agreement provides that, following the purchase of
Shares pursuant to the Improved Offer, the approval of the Merger Agreement by
the shareholders of the Company (if required by the MBCA) and the satisfaction
or waiver of the other conditions to the Merger, Purchaser will be merged with
and into the Company, in accordance with the MBCA, whereupon the separate
existence of Purchaser shall cease and the Company shall be the surviving
corporation (the "Surviving Corporation") unless a short-form merger can be
effected without shareholder approval, in which case Purchaser shall be the
Surviving Corporation. The Merger shall become effective at such time as
Articles of Merger (or a Plan of Merger therein contained) are filed with the
Maine Secretary of State or at such later time as is specified in such Articles
of Merger (the "Effective Time"). As a result of the Merger, all of the rights,
privileges, immunities, powers and franchises of the Company and Purchaser shall
vest in the Surviving Corporation, and all duties, liabilities and obligations
of the Company and Purchaser shall become the duties, liabilities and
obligations of the Surviving Corporation, all as provided under the MBCA.
Conversion of Shares. The Merger Agreement provides that at the Effective
Time, (i) each Share outstanding immediately prior to the Effective Time shall,
except as otherwise provided in clause (ii) below and except for Shares held by
any holder who has not voted in favor of the Merger or consented thereto in
writing and who has demanded appraisal for such Shares in accordance with
Section 909 of the MBCA ("Dissenting Shares"), be converted into the right to
receive $8.50 in cash or any higher price per Share that may be paid pursuant to
the Improved Offer, without interest (the "Merger Consideration"), (ii) each
Share held by the Company as treasury stock and each Share held by Saint-Gobain,
Parent or any subsidiary of Saint-Gobain or Parent immediately prior to the
Effective Time shall be canceled, and no payment shall be made with respect
thereto, and (iii) each share of common stock of Purchaser outstanding
immediately prior to the Effective Time shall be converted into and become one
share of common stock of the Surviving Corporation with the same rights, powers
and privileges as the shares so converted and shall constitute the only
outstanding shares of capital stock of the Surviving Corporation. The Surviving
Corporation will, thereupon, become an indirect, wholly owned subsidiary of
Parent.
Stock Options. The Merger Agreement provides that at or immediately prior
to the Effective Time, each outstanding stock option issued by the Company to
purchase Shares, whether or not vested or exercisable, will be canceled, and the
Company will pay each holder of any such option at or promptly after the
Effective Time for each such option surrendered an amount in cash determined by
multiplying (i) the excess, if any, of the Merger Consideration over the
applicable exercise price of such option by (ii) the number of Shares such
holder could have purchased (assuming full vesting of all options) had such
holder exercised such option in
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full immediately prior to the Effective Time. Such payment shall be subject to
applicable tax withholding requirements.
Prior to the Effective Time, the Company is required by the Merger
Agreement to take all actions (including, if appropriate, amending the terms of
any option plan or arrangement) that are within its power to give effect to the
transactions contemplated by the immediately preceding paragraph.
Surviving Corporation. The Merger Agreement provides that the articles of
incorporation and bylaws of Purchaser in effect at the Effective Time will be
the articles of incorporation and bylaws, respectively, of the Surviving
Corporation until amended in accordance with applicable law, except that the
name of the Surviving Corporation shall be Brunswick Technologies, Inc. The
Merger Agreement also provides that the directors and the officers of Purchaser
at the Effective Time will be the directors and the officers of the Surviving
Corporation.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties of the parties, including
representations by the Company with respect to its corporate existence and
power, corporate authorizations, governmental authorizations, non-contravention,
capitalization, subsidiaries, SEC filings, financial statements, disclosure
documents, absence of certain changes, no undisclosed material liabilities,
compliance with laws and court orders, litigation, material contracts, finders'
fees, employee benefits, environmental matters, title to real properties,
insurance coverage, labor matters, intellectual property and anti-takeover
statutes. Certain representations and warranties in the Merger Agreement contain
exceptions for matters that would or could, as the case may be, not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on the Company, or Parent, as the case may be. The Merger Agreement provides
that "Material Adverse Effect" means, with respect to any person, a material
adverse effect (other than an effect that impacts the person's industry
generally) on the financial condition, business or results of operations of such
person and its subsidiaries, taken as a whole.
Additionally, the Company represented that it has taken, or will take, all
action necessary to render the Rights issued pursuant to the terms of the Rights
Agreement inapplicable to the Merger Agreement, the Shareholder Agreements, the
Improved Offer, the Merger and any other transaction contemplated thereby. On
June 12, 2000, the Company's Board voted to redeem the Rights under the Rights
Agreement, authorizing a notice of redemption to be sent to all shareholders of
the Company which declares the Rights as having been redeemed. Under the Rights
Agreement, this is sufficient to redeem the Rights and make them inapplicable to
the Improved Offer, or any extension thereof.
Interim Agreements of the Company. Pursuant to the Merger Agreement, the
Company has agreed that, during the period from the date of the Merger Agreement
to the Effective Time, the Company and its subsidiaries will conduct their
business in the ordinary course consistent with past practice and will use
commercially reasonable efforts to preserve intact their business organizations
and relationships with third parties and to keep available the services of their
present officers and employees. Pursuant to the Merger Agreement, without
limiting the generality of the foregoing, from the date of the Merger Agreement
until the Effective Time, the Company will not and will not permit any of its
subsidiaries to: (a) adopt or propose any change in the Company's articles of
incorporation or bylaws; (b) merge or consolidate with any other person or
acquire a material amount of stock or assets of any other person; (c) sell,
lease, license or otherwise dispose of any material subsidiary or material
amount of assets, securities or property except (i) pursuant to existing
contracts or commitments and (ii) in the ordinary course consistent with past
practice; (d) (i) take any action that would make any representation and
warranty of the Company under the Merger Agreement that is qualified by
materiality or Material Adverse Effect inaccurate in any respect at, or as of
any time prior to, the Effective Time, (ii) take any action that would make any
representation or warranty of the Company under the Merger Agreement that is not
so qualified to be inaccurate in any material respect at, or as of any time
prior to, the Effective Time or (iii) omit to take any action necessary to
prevent any such representation or warranty from being inaccurate in any respect
or material respect, as the case may be, at any such time; (e) issue, sell,
pledge, dispose of or encumber, or authorize the issuance, sale, pledge,
disposition or encumbrance of, any shares of capital stock of any class, or any
options, warrants, convertible securities or other rights of any kind to acquire
any shares of capital stock, or any other ownership interest of the Company, any
of its subsidiaries or affiliates (except for the issuance of Shares pursuant to
the exercise of options, which options
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<PAGE> 10
are outstanding on the date of the Merger Agreement); (f)(i) declare, set aside,
make or pay any dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its capital stock, except
that any wholly owned subsidiary of the Company may declare and pay a dividend
to its parent, (ii) split, combine or reclassify any of its capital stock or
issue or authorize the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock or (iii) repurchase,
redeem or otherwise acquire any of its securities or any securities of its
subsidiaries, or propose to do any of the foregoing; (g) other than in the
ordinary course of business consistent with past practice, sell, transfer,
license, sublicense or otherwise dispose of any material intellectual property
rights or amend or modify any existing agreements with respect to any material
intellectual property rights or intellectual property rights of a third party;
(h)(i) except as expressly permitted, incur any indebtedness for borrowed money
or issue any debt securities or assume, guarantee or endorse or otherwise as an
accommodation become responsible for, the obligations of any other person or
make any loans, advances, or capital contributions to, or investments in, any
other person (other than to any wholly owned subsidiary of the Company) other
than the ordinary course of business consistent with past practice, (ii) enter
into or amend any contract or agreement other than in the ordinary course of
business consistent with past practice, (iii) authorize or make any capital
expenditures or purchases of fixed assets that are not currently budgeted and
that in the aggregate exceeds $250,000, (iv) terminate any material contract of
the Company or amend in any material respect any such contract or (v) enter into
or amend any contract, agreement, commitment or arrangement to effect any of the
matters prohibited under this clause (h) other than in the ordinary course of
business consistent with past practice; (i) take any action, other than as
required by generally accepted accounting principles, to change accounting
policies or procedures or cash maintenance policies or procedures (including,
without limitation, procedures with respect to revenue recognition,
capitalization of development costs, payments of accounts payable and collection
of accounts receivable); (j) make any tax election not required by law and
inconsistent with past practice or settle or compromise any tax liability,
except to the extent the amount of any such settlement or compromise has been
reserved for on the consolidated financial statements contained in certain of
the Company's documents filed with the SEC, or would not have a Material Adverse
Effect; (k) pay, discharge, settle, or satisfy any lawsuits, claims, liabilities
or obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the ordinary
course of business consistent with past practice of liabilities reflected or
reserved against in the consolidated balance sheet of the Company as of March
31, 2000, or incurred in the ordinary course of business consistent with past
practice or other payments, discharges or satisfactions which in the aggregate
do not exceed $100,000 or waive the benefits of, or agree to modify in any
manner, any confidentiality, standstill or similar agreement to which the
Company or any of its subsidiaries is a party; (l) (i) except as described in
"Other Agreements of Parent, Purchaser and the Company" below, adopt or amend
any bonus, profit sharing, compensation, severance, termination, stock option,
pension, retirement, deferred compensation, employment or employee benefit plan,
agreement, trust, plan, fund or other arrangement for the benefit and welfare of
any director, officer or employee, (ii) increase in any manner the compensation
or fringe benefits of any director, officer or employee (except for increases in
the ordinary course of business consistent with past practice and that, in the
aggregate, do not result in a material increase in benefits or compensation
expense to the Company) or (iii) pay any benefit not required by any currently
existing plan or arrangement (including, without limitation, the granting of
stock options or stock appreciation rights or the removal of existing
restrictions in any benefit plans or agreements); and (m) agree or commit to do
any of the foregoing.
Other Agreements of Parent, Purchaser and the Company. In the Merger
Agreement, the Company has agreed that the Company, its subsidiaries and their
respective officers, directors, employees, investment bankers, attorneys,
accountants, consultants or other agents or advisors shall not directly or
indirectly, (i) take any action to solicit, initiate, facilitate or encourage
the submission of any Acquisition Proposal, (ii) except as permitted in the next
paragraph, engage in discussions or negotiations with, or disclose any nonpublic
information relating to the Company or any of its subsidiaries or afford access
to the properties, books or records of the Company or any of its subsidiaries
to, any person who the Company has reason to believe may be considering making,
or has made, an Acquisition Proposal or any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or (iii) grant any waiver or release under any standstill
or similar agreement with respect to any class of equity securities of the
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Company. The Company will notify Parent or Parent's outside legal counsel
promptly (but in no event later than 36 hours) after receipt by or communication
to, the Company of any Acquisition Proposal, any indication that any person is
considering making an Acquisition Proposal or any request for nonpublic
information relating to the Company or any of its subsidiaries or for access to
the properties, books or records of the Company or any of its subsidiaries by
any person who the Company has reason to believe may be considering making, or
has made, an Acquisition Proposal and the Company will keep Parent fully
informed of any material changes to the terms thereof.
Notwithstanding the foregoing, the Company may negotiate or otherwise
engage in substantive discussions with, and furnish nonpublic information to,
any person who delivers a Superior Proposal if (i) the Company has complied with
the preceding paragraph, including, without limitation, the requirement that it
notify Parent promptly after its receipt of any Acquisition Proposal, (ii) the
Board of Directors of the Company determines in good faith by a majority vote,
on the basis of advice from its outside legal counsel, that consistent with its
fiduciary duties under applicable law, it must take such action, (iii) such
person executes a confidentiality agreement with terms no less favorable to the
Company than those contained in the Confidentiality Agreement described below,
(iv) the Company shall have delivered to Parent four business days' prior
written notice advising Parent that it intends to take such action and (v) the
Improved Offer shall not have closed.
Between the date of the Merger Agreement and the Effective Time and subject
to applicable law and the Confidentiality Agreement described below, the Company
will (i) give Parent, its counsel, financial advisors, auditors and other
authorized representatives full access to the offices, properties, books and
records of the Company and its subsidiaries, (ii) furnish to Parent, its
counsel, financial advisors, auditors and other authorized representatives such
financial and operating data and other information as such persons may
reasonably request and (iii) instruct the employees, counsel, financial
advisors, auditors and other authorized representatives of the Company and its
subsidiaries to cooperate with Parent in its investigation of the Company and
its subsidiaries.
Pursuant to the Merger Agreement, the Company has agreed to cause a meeting
of its shareholders (the "Company Shareholder Meeting") to be duly called and
held as soon as reasonably practicable after consummation of the Improved Offer
for the purpose of voting on the approval and adoption of the Merger Agreement
and the Merger, unless the MBCA does not require a vote of shareholders of the
Company for consummation of the Merger. The Merger Agreement provides that the
Company will (i) promptly prepare and file with the SEC, will use its best
efforts to have cleared by the SEC and will thereafter mail to its shareholders
as promptly as practicable the proxy or information statement of the Company in
connection with the Merger and all other proxy materials for such meeting, (ii)
use its best efforts to obtain the necessary approvals by its shareholders of
the Merger Agreement and the transactions contemplated thereby and (iii)
otherwise comply with all legal requirements applicable to such meeting. Subject
to their fiduciary duties as advised by outside counsel to the Company, the
Board of Directors will recommend approval and adoption of the Merger Agreement
and the transactions contemplated thereby by the Company's shareholders.
In the Merger Agreement, the Company and Parent agreed to take all action
necessary to postpone or adjourn the special meeting of shareholders of the
Company scheduled for June 16, 2000 to the latest date on which the record date
for the special meeting of shareholders is still valid for such meeting.
Until the Effective Time or, if earlier, the date of termination of the
Merger Agreement in accordance with its terms, as soon as practicable, but in no
event later than 30 days after the end of each month beginning with May 2000,
the Company shall deliver to Parent unaudited financial information for such
month and the corresponding month of the preceding year as customarily prepared
by the Company's management for its own internal purposes.
For three years after the Effective Time, the Surviving Corporation will
indemnify and hold harmless the present and former officers and directors of the
Company in respect of acts or omissions occurring at or prior to the Effective
Time to the fullest extent permitted by the MBCA or any other applicable laws or
provided under the Company's articles of incorporation and bylaws in effect on
the date of the Merger Agreement; provided that such indemnification shall be
subject to any limitation imposed from time to time under
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applicable law. For three years after the Effective Time, the Surviving
Corporation will provide officers' and directors' liability insurance in respect
of acts or omissions occurring prior to the Effective Time covering each such
person currently covered by the Company's officers' and directors' liability
insurance policy on terms with respect to coverage and amount no less favorable
than those of such policy in effect on the date of the Merger Agreement.
The Merger Agreement provides that Parent and Purchaser will honor (i) all
employment, severance or similar contractual or benefit plan arrangements in
accordance with their terms in existence on June 12, 2000 (one of which is in
the process of being amended) and (ii) all legally imposed obligations relating
to employment matters. The Merger Agreement states that it is the current
intention of Parent and Purchaser to cause the Surviving Corporation to provide
benefits to employees of the Company and its subsidiaries that are generally
comparable in the aggregate to such employee benefits in effect on June 12, 2000
(except for stock-based plans); provided that the foregoing shall not limit or
restrict the right of the Surviving Corporation or its subsidiaries to terminate
the employment of such employees or subsequently to modify the benefits or other
terms of employment of such employees, to the extent permitted by applicable
law. Nothing in the Merger Agreement prohibits Parent from replacing any
existing plan, program or arrangement with a plan, program or arrangement which
Parent reasonably believes will provide such employees with benefits which are
generally comparable to the benefits that would have been provided under such
existing plan, program or arrangement and nothing in the Merger Agreement
obligates Parent to provide such employees with any stock based compensation or
value thereof (including stock options or stock appreciation rights) after the
Effective Time. The Merger Agreement provides all service credited to each
employee by the Company through the Effective Time will be recognized by Parent
for purposes of eligibility and vesting under any employee benefit plan provided
by the Surviving Corporation or Parent for the benefit of such employee.
The Merger Agreement provides that Parent has no present intention to close
any company facilities.
The Merger Agreement provides that the Company and Parent will use their
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate the transactions contemplated by the Merger
Agreement.
Conditions to the Merger. The obligations of each of Parent, Purchaser and
the Company to consummate the Merger are subject to the satisfaction of certain
conditions, including: (a) if required by the MBCA, the Merger Agreement shall
have been approved and adopted by the shareholders of the Company; (b) no
provision of any applicable law or regulation and no judgment, injunction, order
or decree shall prohibit the consummation of the Merger and (c) Purchaser will
have purchased Shares pursuant to the Improved Offer.
The obligations of Parent and Purchaser to consummate the Merger are
subject to the satisfaction of the following further conditions: (a)(i) the
Company will have performed in all material respects all of its obligations
under the Merger Agreement required to be performed by it at or prior to the
Effective Time and (ii) the representations and warranties of the Company
contained in the Merger Agreement and in any certificate or other writing
delivered by the Company pursuant thereto, disregarding all qualifications and
exceptions contained therein relating to materiality or Material Adverse Effect,
shall be true and correct in all material respects with only such exceptions as
would not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect on the Company at and as of the date of the Merger
Agreement as if made at and as of such time and at and as of the Effective Time
as if made at and as of such time and (b) there shall not be instituted or
pending any action, investigation or proceeding by any government or
governmental authority or agency, domestic or foreign, or by any other person,
before any court or governmental authority or agency, domestic or foreign, (i)
challenging the acquisition by Parent, Purchaser or any of their respective
affiliates of any Shares, seeking to restrain or prohibit the making or
consummation of the Merger or the performance of any of the other transactions
contemplated by the Merger Agreement or seeking to require the Company, Parent,
Purchaser or any of their respective affiliates to pay any damages related to
the Merger or the other transactions contemplated by the Merger Agreement that
are material in relation to the Company taken as a whole, (ii) seeking to impose
limitations on the ability of Purchaser, or to render Purchaser unable to accept
for payment, pay for or purchase some or all of the Shares, (iii) seeking to
restrain or prohibit
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Parent's ownership or operation (or that of its affiliates) of all or any
portion of the business or assets of the Company and its subsidiaries or of
Parent and its affiliates, or to compel Parent or any of its affiliates to
dispose of or hold separate all or any portion of the business or assets of the
Company and its subsidiaries or of Parent and its affiliates, (iv) seeking to
impose limitations on the ability of Parent, Purchaser or any of Parent's other
affiliates effectively to exercise full rights of ownership of the Shares,
including, without limitation, the right to vote any Shares acquired or owned by
Parent, Purchaser or any of Parent's other affiliates on all matters properly
presented to the Company's shareholders, (v) seeking to require divestiture by
Parent, Purchaser or any of Parent's other affiliates of any Shares, (vi)
alleging breach of fiduciary duty by the Directors of the Company, or (vii) that
otherwise is reasonably likely to have a Material Adverse Effect on the Company
or Parent.
Termination. The Merger Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time (notwithstanding any approval
of the Merger Agreement by the shareholders of the Company):
(a) by mutual written agreement of the Company and Parent;
(b) by either the Company or Parent, if (i) Purchaser shall not have
accepted for payment at least that number of Shares that will satisfy the
Minimum Condition pursuant to the Improved Offer before August 31, 2000;
provided that the right to terminate the Merger Agreement pursuant to this
clause (i) shall not be available to any party whose breach of any
provision of the Merger Agreement results in the failure of the acceptance
for payment by Purchaser of any Shares pursuant to the Improved Offer by
such time or of the Improved Offer to be commenced by such time; (ii) there
shall be any law or regulation that makes acceptance for payment of, and
payment for, the Shares pursuant to the Improved Offer or consummation of
the Merger illegal or otherwise prohibited or any judgment, injunction,
order or decree of any court or governmental body having competent
jurisdiction enjoining Purchaser from accepting for payment of, and paying
for, the Shares pursuant to the Improved Offer or the Company or Parent
from consummating the Merger and such judgment, injunction, order or decree
shall have become final and nonappealable; (iii) the Company's shareholders
shall have rejected the Merger and the Merger Agreement at the Company
Shareholder Meeting, if required, or at any adjournment or postponement
thereof; or (iv) the Merger shall not have been consummated by October 31,
2000; provided that the right to terminate the Merger Agreement pursuant to
this clause (iv) shall not be available to any party whose breach of any
provision of the Merger Agreement results in the failure of the Merger to
be consummated by such time;
(c) by Parent, if, prior to the acceptance for payment of the Shares
under the Improved Offer, (i) any person or "group" (as defined in Section
13(d)(3) of the Exchange Act), other than Parent or any of its affiliates,
shall have acquired beneficial ownership of more than 15% of the Shares,
through the acquisition of stock, the formation of a group or otherwise, or
shall have been granted any option, right or warrant, conditional or
otherwise, to acquire beneficial ownership of such Shares; (ii) (A) the
Board of Directors of the Company shall have withdrawn, or modified in a
manner adverse to Parent, its approval or recommendation of the Merger
Agreement, the Improved Offer or the Merger, or shall have recommended, or
entered into, or publicly announced its intention to enter into, an
agreement or an agreement in principle with respect to an Acquisition
Proposal or shall have failed to reaffirm such approval or recommendation
upon Parent's request (or shall have resolved to do any of the foregoing)
or (B) the Company shall have breached certain of its obligations under the
Merger Agreement; or (iii) the Offer terminates due to the failure of the
Minimum Condition; and
(d) by the Company, if (i) prior to the acceptance for payment of any
Shares pursuant to the Improved Offer, (ii) the Company is in compliance
with certain of its obligations under the Merger Agreement, (iii) the Board
of Directors of the Company shall have withdrawn or modified in a manner
adverse to Parent its approval or recommendation of the Merger Agreement,
the Improved Offer or the Merger, (iv) the Board of Directors of the
Company authorizes the Company, subject to complying with the terms of the
Merger Agreement, to enter into a binding written agreement concerning a
transaction that constitutes a Superior Proposal and the Company notifies
Parent in writing that it intends to enter
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into such an agreement, attaching the most current version of such
agreement to such notice, (v) Parent does not make, within four business
days of receipt of the Company's written notification of its intention to
enter into a binding agreement for a Superior Proposal, an offer that the
Board of Directors of the Company determines, in good faith after
consultation with its financial advisors, is at least as favorable, from a
financial point of view, to the shareholders of the Company as the Superior
Proposal and (vi) the Company simultaneously with such termination pays to
Parent in immediately available funds the fees required to be paid pursuant
to the Merger Agreement. The Company agrees (x) that it will not enter into
a binding agreement referred to in clause (iv) in the preceding sentence
until at least the fifth business day after it has provided the notice to
Parent required by the Merger Agreement and (y) to notify Parent promptly
if its intention to enter into the written agreement referred to in its
notification shall change at any time after giving such notification.
In the event of the termination of the Merger Agreement, the Merger
Agreement will become void and have no effect, without any liability on the part
of any party thereto other than certain provisions of the Merger Agreement
relating to termination, expenses, governing law and waiver of jury trial;
provided that a party will not be relieved from liability for willful and
knowing (i) failure to fulfill a condition to the performance of the material
obligations of the other party, (ii) failure to perform a material covenant or
(iii) material breach of any representation or warranty or agreement in the
Merger Agreement.
Termination Fee. Pursuant to the Merger Agreement, the Company will pay to
Parent a fee of $1,800,000, plus the reasonable expenses of Parent (not to
exceed $1,000,000) incurred in connection with the initial offer, the Improved
Offer, the negotiation of the Merger Agreement and the consummation of the
transactions contemplated thereby, if the Merger Agreement is terminated (x)
pursuant to clause (c) under "Termination" above (except that for this purpose
such person or "group" shall have acquired beneficial ownership of 50% or more
of the outstanding Shares) or (d) under "Termination" above or (y) pursuant to
clause (b)(i) under "Termination" above and, in the case of this clause (y),
prior to the time of such termination an Acquisition Proposal shall have been
publicly announced and not withdrawn and, within nine months of the date of
termination, the Company enters into an agreement or letter of intent concerning
a transaction in respect of such Acquisition Proposal and such transaction is
subsequently consummated.
The fee and expenses reimbursement payable (i) pursuant to clause (x) of
the preceding paragraph shall be paid by the Company simultaneously with the
termination of the Merger Agreement, and (ii) pursuant to clause (y) of the
preceding paragraph shall be paid by the Company on the date on which the
transaction referred to in such clause shall be consummated.
The Merger Agreement provides that the Company will promptly pay to Parent,
in immediately available funds, an amount equal to Parent's reasonable expenses
(not to exceed $1,250,000) incurred in connection with the initial offer, the
Improved Offer, the Merger Agreement and the transactions contemplated thereby,
if (x) the Merger Agreement shall have been terminated pursuant to clause (b)(i)
of the first paragraph under "Termination" above and (y) the Company shall have
breached or failed to perform in any material respect any obligation or to
comply in any material respect with any agreement or covenant of the Company to
be performed or complied with by it under the Merger Agreement as a result of an
intentional act or omission of the Company.
If the Company fails promptly to pay any amount due Parent as described in
the preceding paragraphs, the Company shall also pay any costs and expenses
incurred by Parent in connection with a legal action to enforce the Merger
Agreement that results in any judgment or settlement against the Company for
such amount.
The Merger Agreement provides that Parent will promptly pay to the Company,
in immediately available funds, an amount equal to the Company's reasonable
expenses (not to exceed $1,250,000) incurred in connection with the initial
offer, the Improved Offer, the Merger Agreement and the transactions
contemplated thereby, if Parent is otherwise required pursuant to the terms of
the Improved Offer to accept for payment and pay for the tendered Shares and
fails to do so within the time period provided in the Improved Offer.
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Expenses. Except as discussed above, the Merger Agreement provides that all
costs and expenses incurred in connection with the transactions contemplated by
the Merger Agreement shall be paid by the party incurring such costs and
expenses.
Amendments; No Waivers. Any provision of the Merger Agreement may be
amended or waived prior to the Effective Time if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by the Company,
Parent and Purchaser or in the case of a waiver, by the party against whom the
waiver is to be effective; provided that after the adoption of the Merger
Agreement by the shareholders of the Company, no such amendment or waiver shall,
without the further approval of such shareholders, reduce the amount or change
the kind of consideration to be received in exchange for the Shares.
THE SHAREHOLDER AGREEMENTS
The following is a summary of certain provisions of the Shareholder
Agreements entered into, or to be entered into, between Purchaser and each of
the Company's directors (each, the "Shareholder Agreement"), a copy of which is
filed as an Exhibit to this Schedule 14D-9. Such summary is qualified in its
entirety by reference to the Shareholder Agreement.
Agreement to Tender. Pursuant to the Shareholder Agreement, Shareholder
irrevocably and unconditionally agrees to validly tender (and not withdraw),
pursuant to and in accordance with the terms of the Improved Offer, all of the
shares of capital stock of the Company that Shareholder owns as of the date of
the Shareholder Agreement as well as any additional shares of capital stock of
the Company that Shareholder may own, whether acquired by purchase, exercise of
options or otherwise, at any time after June 12, 2000 (the "Shareholder
Shares"). These agreements are qualified to the extent of any restriction
imposed by any prior pledge or hypothecation of Shares by any of such
Shareholders, in which case Shareholder agrees not to tender or deliver such
Shares other than pursuant to the Improved Offer or to the applicable pledge
holder, and to use his best efforts to cause the pledge holder to tender the
Shares pursuant to the Improved Offer or consent to. or otherwise remove any
restrictions prohibiting the tender of such Shares by the Shareholder. Purchaser
agrees to return Shareholder Share certificates promptly upon any termination of
the Merger Agreement in accordance with the terms thereof.
Voting Agreement. Pursuant to the Shareholder Agreement, until the earliest
to occur of (x) the consummation of the Merger, (y) the nine month anniversary
of the Shareholder Agreement and (z) the termination of the Merger Agreement by
Parent under certain circumstances (the "Termination Date"), Shareholder
irrevocably and unconditionally agrees to vote or cause to be voted all
Shareholder Shares that Shareholder is entitled to vote at the time of any vote
of the shareholders of the Company where such matters arise (i) in favor of the
approval and adoption of the Merger Agreement and in favor of the transactions
contemplated thereby, (ii) against any proposal or transaction which could
prevent or delay the consummation of the transactions contemplated by the Merger
Agreement and the related agreements and (iii) against any (A) Acquisition
Proposal (other than the Merger), (B) corporate action the consummation of which
would frustrate the purposes, or prevent or delay the consummation, of the
transactions contemplated by the Merger Agreement and the related agreements or
(C) other matters relating to, or in connection with, any of the matters
referred to in clause (A) and (B) above. The Shareholder Agreement does not
limit or restrict Shareholder's ability to act or vote in his capacity as an
officer or director of the Company in any manner he so chooses.
Grant of Proxy. Pursuant to the Shareholder Agreement, Shareholder
irrevocably and unconditionally grants a proxy appointing Purchaser as
Shareholder's attorney-in-fact and proxy, with full power of substitution, for
and in Shareholder's name, to vote, express, consent or dissent, or otherwise to
utilize such voting power in the manner contemplated by the section on "Voting
Agreement" above. Such proxy will be revoked on the Termination Date.
Representations and Warranties. The Shareholder Agreement contains
customary representations and warranties of the parties thereto.
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No Proxies for or Encumbrances on Shareholder Shares. Except pursuant to
the terms of the Shareholder Agreement, Shareholder agrees that, without the
prior written consent of Purchaser, Shareholder will not, directly or
indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shareholder Shares or
(ii) sell, assign, transfer, encumber or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance or other disposition
of, any Shareholder Shares during the term of the Shareholder Agreement.
Shareholder shall not seek or solicit any of the foregoing and agrees to notify
Purchaser promptly if so approached or solicited himself.
Appraisal Rights. Shareholder agrees not to exercise any dissenters' rights
which may arise with respect to the Merger.
Amendments. The Shareholder Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties thereto.
EMPLOYMENT MATTERS
Employment Agreements.
The Company's filings on Schedule 14D-9 and Amendments thereto disclose
seven employment agreements which contain severance provisions upon a change in
control. One of these agreements, with Martin S. Grimnes, was amended on June
12, 2000. Under the terms of this amendment, among others, Mr. Grimnes has
agreed that if his employment is terminated for any reason, voluntarily or
involuntarily, during the first three years following a change in control, he
will not for a period of three years, directly or indirectly, compete with the
Company or with its businesses nor will he divert or attempt to divert any
business, customers, suppliers or licensors of the Company or hire or attempt to
hire or encourage the resignation of any Company employee for any reason. In
addition, Mr. Grimnes has agreed to assign a pending patent application for a
thermoplastic process patent to the Company and to cooperate and provide
reasonable assistance in the prosecution of such patent application. Moreover,
Mr. Grimnes has agreed to make himself available for six months following any
termination of his employment for consulting services on customary terms,
although up to a total of 45 days of consulting services will be without
additional compensation. In exchange, Parent recognizes that the transactions
described in the Improved Offer and Merger Agreement would be deemed a Hostile
Change in Control under his employment agreement and have further agreed that a
certain promissory note payable to the Company by him, of which there remains
outstanding principal and interest of approximately $112,500, will be cancelled
upon consummation of the Improved Offer. The amendment has been filed as an
Exhibit to this Schedule 14D-9, and such summary is qualified in its entirety by
reference to that amendment.
Non-Compete Agreements.
The Company agreed in the Merger Agreement to use its best efforts to cause
each of Messrs. Dubay, Fuller, Chesney, Lee and Wallace to enter into
non-compete agreements substantially in the form attached as an exhibit to the
Merger Agreement. This form of non-compete agreement has been filed as an
Exhibit to this Schedule 14D-9, and the summary which follows is qualified in
its entirety by reference to that form of agreement.
The form of non-compete agreement provides that any executive who signs
such agreement will agree during the time he remains an employee of the Company
and for a period of 18 months following termination of his employment for any
reason, voluntarily or involuntarily, not to directly or indirectly compete with
the Company or its businesses and not to divert or attempt to divert any
business, customers, suppliers or licensors of the Company or hire or attempt to
hire or encourage the resignation of any employees of the Company for any
reason. The executive will also agree that the scope of such covenant is
reasonable and that any breach of the agreement may cause irreparable harm to
the Company, thereby entitling it to injunctive and other equitable relief. The
executive will also agree to maintain as confidential any proprietary or other
confidential information concerning the Company or its businesses, which would
be supplemental to any existing
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confidentiality agreement binding the executive. As consideration for the
non-compete agreement, the executive will be paid a lump sum gross amount of
$25,000, less applicable withholding taxes.
THE RIGHTS AGREEMENT
The Company's Rights Agreement provides that certain transactions,
including the Offer, the Improved Offer and the Merger, will cause the issuance
of right certificates unless the Board has approved in advance such
transactions. At a special meeting of the Board on June 12, 2000, the Board
unanimously approved the consummation of the transactions contemplated by the
Merger Agreement, including the acceptance of the Improved Offer and
consummation of the Merger. At that same meeting, the Company's Board took
action to redeem the Rights pursuant to the Rights Agreement. As a result of
such actions by the Board, the Rights Agreement will be inapplicable to the
Improved Offer and the Merger. A copy of the Company's Notice of Redemption with
respect to the Rights Plan is attached as an Exhibit to this Schedule 14D-9 and
is being mailed to Stockholders simultaneously herewith.
CONFIDENTIALITY AGREEMENT
On May 17, 2000, the Company and Purchaser entered into the Confidentiality
Agreement. Each party has agreed therein that for three years following the date
of the Confidentiality Agreement, it will keep confidential all nonpublic,
confidential or proprietary information of the other party, subject to certain
exceptions, and will use the confidential information for no purpose other than
evaluating a possible business combination with the other party.
PURPOSE OF THE IMPROVED OFFER; PLANS FOR THE COMPANY.
Purpose of the Improved Offer. The purpose of the Improved Offer is to
acquire for cash as many outstanding Shares as possible as a first step in
acquiring the entire equity interest in the Company. Purchaser currently
intends, as soon as practicable after consummation of the Improved Offer, to
seek controlling representation on the Company's Board of Directors and to
consummate the Merger.
The Board of Directors of the Company has unanimously recommended that all
holders of Shares tender such Shares pursuant to the Improved Offer. The Board
of Directors has unanimously approved the Merger Agreement and the transactions
contemplated thereby, including the Improved Offer and the Merger, which
approval Purchaser believes satisfies the relevant requirements of the MBCA.
If Purchaser purchases Shares sufficient to satisfy the Minimum Condition
pursuant to the Improved Offer, the Merger Agreement provides that Purchaser
will be entitled to designate the entire Board of Directors following such
purchase. Purchaser expects that such representation would permit Purchaser to
exert substantial influence over the Company's conduct of its business and
operations.
Dissenters' Rights. Holders of Shares do not have dissenters' rights as a
result of the Improved Offer or the execution of the Merger Agreement. However,
if the Merger is consummated, holders of Shares at the effective time of the
Merger, by complying with the provisions of Section 909 of the MBCA, would have
certain rights to dissent and to require the Company to purchase their Shares
for cash at "fair value." In general, a shareholder will be entitled to exercise
dissenters' rights under the MBCA only if the dissenting shareholder has filed
with the Company before or at the shareholder meeting at which the Merger is to
be submitted to a vote a written objection to the Merger, has not voted in favor
of the Merger, and has delivered or mailed his or her objection to the Merger
within fifteen days after the date of the shareholder vote. If a short-form
merger is to be effected without a shareholder vote, written objection must be
delivered or mailed within fifteen days after notice of the Plan of Merger is
mailed to Company shareholders.
If the statutory procedures under the MBCA relating to dissenters' rights
are complied with the dissenting shareholders or the Company can seek judicial
determination of the "fair value" of the Shares. The "fair value" would be
determined as of the day before the date on which the vote of shareholders was
taken to approve the Merger (or the director vote, in the case of a short-form
merger), excluding any appreciation or depreciation in anticipation of the
Merger. The value so determined could be more or less than the Merger
Consideration.
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THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING SHAREHOLDERS DOES NOT
PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY
SHAREHOLDERS DESIRING TO EXERCISE ANY AVAILABLE DISSENTERS' RIGHTS AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE MBCA. THE PRESERVATION AND
EXERCISE OF DISSENTERS' RIGHTS REQUIRE STRICT ADHERENCE TO THE APPLICABLE
PROVISIONS OF THE MBCA.
Plans for the Company. In connection with its consideration of the Offer,
the Improved Offer and its evaluation of non-public information made available
by the Company, Parent has made a preliminary review, and will continue to
review, various possible business strategies that it might consider in the event
that it consummates the Improved Offer and the Merger. However, Parent has
committed in the Merger Agreement that it has no present intention to close any
current facilities of the Company or its subsidiaries. In addition, Parent has
committed to honor all employment, severance or similar contractual or benefit
plan arrangements of the Company currently in existence; to generally cause the
Surviving Corporation to provide benefits to employees of the Company and its
subsidiaries that are generally comparable in the aggregate to those currently
in effect; and to recognize all service credited to employees of the Company for
purposes of eligibility and vesting under any employee benefit plan provided by
the Surviving Corporation or Parent for the benefit of such employees. See the
more detailed description under "The Merger Agreement - Other Agreements of
Parent, Purchaser and the Company" above.
Except as described above or elsewhere in this Schedule 14D-9, Parent has
no present plans or proposals that would relate to or result in an extraordinary
corporate transaction involving the Company or any of its subsidiaries (such as
a merger, reorganization, liquidation, relocation of any operations or sale or
other transfer of a material amount of assets), any material change in the
Company's capitalization policy or any other material change in the Company's
corporate structure or business.
WE URGE YOU TO READ THE PURCHASER'S DOCUMENTATION MAILED TO YOU CONCERNING
THE IMPROVED OFFER AND THE CONDITIONS PERTAINING THERETO FOR A FULL DESCRIPTION
THEREOF PRIOR TO MAKING ANY DECISIONS TO TENDER YOUR SHARES.
CERTAIN LEGAL MATTERS
As previously reported in this Schedule 14D-9, the Company filed a
complaint against Vetrotex, Purchaser, Parent and Saint-Gobain on April 26, 2000
in the United States District Court for the District of Maine. On June 14, 2000,
the Court was advised that the parties had reached a settlement of the case,
whereupon the Court ordered counsel to complete the settlement within 30 days
and file a stipulation of dismissal with prejudice before July 14, 2000.
With respect to the Company's complaint filed against Vetrotex on May 23,
2000 in the Superior Court of Cumberland County, Maine, which was later removed
to the United States District Court for the District of Maine, all hearings
scheduled in such case have been canceled at the joint request of the parties.
On June 14, 2000, the Court was advised that the parties had reached a
settlement of the case, whereupon the Court ordered counsel to complete the
settlement within 30 days and file a stipulation of dismissal with prejudice
before July 14, 2000.
ITEM 4. THE SOLICITATION OR RECOMMENDATION
Item 4 is hereby amended in its entirety and replaced with the following:
(a) Recommendation. On June 12, 2000 the Board unanimously determined that
the Improved Offer is in the best interests of the Company and its stockholders.
ACCORDINGLY, THE BOARD RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS TENDER THEIR
SHARES TO THE PURCHASER.
The letter to stockholders communicating the Board's recommendation is
filed as an Exhibit hereto, and is incorporated herein by reference. A joint
press release communicating the Improved Offer, the Merger Agreement and the
Board's recommendation was filed as Exhibit 18 to this Schedule 14D-9 on June
14, 2000.
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(b) Reasons. In reaching the determination and recommendation set forth in
paragraph (a) above, the Board considered numerous factors, including, without
limitation, the following:
(i) The business, financial condition, and results of operations of
the Company.
(ii) The Company's business plans and current business strategy and
future prospects.
(iii) The nature of the industry in which the Company operates and the
Company's competitive position in such industry.
(iv) A presentation by McDonald Investments Inc. ("McDonald
Investments"), financial advisor to the Company, relating to the process
undertaken at the direction of the Board of Directors to explore strategic
alternatives to maximize shareholder value and various financial and other
matters concerning the Company and the Improved Offer, and the opinion
delivered orally at the June 11, 2000 meeting by McDonald Investments
stating that the cash price of $8.50 per Share proposed to be paid to the
Company's stockholders by the Purchaser pursuant to the Improved Offer is
fair from a financial point of view; such opinion being based on various
assumptions and subject to various limitations as discussed in the written
opinion delivered to the Board on June 11, 2000 (the "New Opinion"). A copy
of the New Opinion is attached as Annex B hereto and is filed as an Exhibit
to this Schedule 14D-9. Stockholders are urged to read carefully the New
Opinion in its entirety.
(v) The consideration of possible alternative transactions and the
risks and benefits of further pursuing each of those alternatives.
(vi) The Board's belief, based in part on the factors referred to
above, that the per Share price of the Improved Offer constitutes fair
value for the Shares.
(vii) The Board's belief, that acquisition of the Company as
contemplated in the Improved Offer would not have a significantly adverse
effect on the Company's relationship with employees, customers, suppliers
and other constituencies, including the communities that the Company serves
and in which its facilities are located.
(c) Intent To Tender. The Company's executive officers and directors,
currently intend to tender their Shares that are held of record or are
beneficially owned by them. The directors of the Company intend to execute a
Shareholder Agreement in the form filed as an Exhibit hereto which agreement
commits each director to tender his Shares.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 is hereby amended by the addition of the following:
Exhibit 19. Joint Letter to Stockholders dated June 15, 2000.**
Exhibit 20. Agreement and Plan of Merger dated June 12, 2000.
Exhibit 21. First Amendment to Employment Agreement dated June 12, 2000.
Exhibit 22. Form of Non-Compete Agreement.
Exhibit 23. Form of Shareholder Agreement.
Exhibit 24. Opinion of McDonald Investments dated June 11, 2000 (included
as Annex B to this Schedule 14D-9 and hereby incorporated by
reference).**
Exhibit 25. Rights Plan Redemption Notice.**
Exhibit 26. Information Statement Pursuant to Section 14(f) and Rule 14f
of the Securities Exchange Act of 1934, as amended (included
as Annex C to this Schedule 14D-9 and hereby incorporated by
reference).**
** Included in copies of Amendment No. 10 to Schedule 14D-9 mailed to
stockholders. This amendment to Schedule 14D-9 is being filed
electronically with the SEC on its EDGAR database. Electronic copies of
this amendment and all exhibits filed herewith or incorporated herein by
reference may be obtained for free on the SEC's internet web site at
http://www.sec.gov.
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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.
BRUNSWICK TECHNOLOGIES, INC.
By: /s/ MARTIN S. GRIMNES
------------------------------------
Name: Martin S. Grimnes
Title: Chief Executive Officer
Dated: June 15, 2000
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EXHIBIT INDEX
<TABLE>
<S> <C>
Exhibit 1. Part I, Item 1: "Business -- Supply," of the Company's
Annual Report on Form 10-K for the year ended December 31,
1999 (previously filed with the Commission on March 30, 2000
and hereby incorporated by reference).
Exhibit 2. Definitive Proxy Statement of the Company dated April 17,
2000 (previously filed with the Commission on April 17, 2000
and hereby incorporated by reference), as supplemented by
Definitive Additional Materials dated April 25, 2000
(previously filed with the Commission on April 25, 2000 and
hereby incorporated by reference) and as supplemented by
Definitive Additional Materials dated April 28, 2000
(previously filed with the Commission on April 28, 2000 and
hereby incorporated by reference).
*Exhibit 3. Form of Employment Agreement with certain executive officers
of the Company.
*Exhibit 4. Complaint filed by the Company on April 26, 2000.
*Exhibit 5. Letter to Stockholders, dated May 3, 2000.
*Exhibit 6. Press Release issued by the Company on May 3, 2000.
*Exhibit 7. Opinion of McDonald Investments dated May 3, 2000 (contained
as Annex A to this Schedule 14D-9 and hereby incorporated by
reference).
*Exhibit 8. Letter of the Company to Saint-Gobain dated April 17, 2000.
*Exhibit 9. Press Release, dated May 5, 2000 issued by Brunswick
Technologies, Inc.
*Exhibit 10. Letter of Brunswick Technologies, Inc., dated May 5, 2000.
*Exhibit 11. Press Release of Brunswick Technologies, Inc., dated May 8,
2000.
*Exhibit 12. Letter of Brunswick Technologies, dated May 10, 2000
published in a number of Maine newspapers.
*Exhibit 13. Press Release of Brunswick Technologies, dated May 12, 2000.
*Exhibit 14. Letter of Brunswick Technologies, Inc. dated May 19, 2000.
*Exhibit 15. Complaint filed by Brunswick Technologies, Inc. dated May
23, 2000.
*Exhibit 16. Letter of Brunswick Technologies, Inc. dated June 1, 2000.
*Exhibit 17. Letter of Brunswick Technologies, Inc. dated June 7, 2000.
*Exhibit 18. Joint Press Release dated June 13, 2000.
Exhibit 19. Joint Letter to Stockholders dated June 15, 2000.**
Exhibit 20. Agreement and Plan of Merger dated June 12, 2000.
Exhibit 21. First Amendment to Employment Agreement dated June 12, 2000.
Exhibit 22. Form of Non-Compete Agreement.
Exhibit 23. Form of Shareholder Agreement.
Exhibit 24. Opinion of McDonald Investments dated June 11, 2000
(included as Annex B to this Schedule 14D-9 and hereby
incorporated by reference).**
Exhibit 25. Rights Plan Redemption Notice.**
Exhibit 26. Information Statement Pursuant to Section 14(f) and Rule 14f
of the Securities Exchange Act of 1934, as amended (included
as Annex C to this Schedule 14D-9 and hereby incorporated by
reference).**
</TABLE>
---------------
* Previously filed.
** Included in copies of Amendment No. 10 to Schedule 14D-9 mailed to
stockholders. This amendment to Schedule 14D-9 is being filed electronically
with the SEC on its EDGAR database. Electronic copies of this amendment and
all exhibits filed herewith or incorporated herein by reference may be
obtained for free on the SEC's internet web site at http://www.sec.gov.
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