<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
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TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
POLYGRAM N.V.
(NAME OF SUBJECT COMPANY)
------------------------
THE SEAGRAM COMPANY LTD.--
LA COMPAGNIE SEAGRAM LTEE.
(BIDDER)
------------------------
SHARES, PAR VALUE NLG 0.50 PER SHARE
(TITLE OF CLASS OF SECURITIES)
------------------------
XS1139843
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
ROBERT W. MATSCHULLAT
JOSEPH E. SEAGRAM & SONS, INC.
375 PARK AVENUE
NEW YORK, NEW YORK 10152
(212) 572-7000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
------------------------
COPIES TO:
GEORGE R. KROUSE, JR., ESQ.
JOHN G. FINLEY, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 455-2000
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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<S> <C>
$10,999,719,337............................................. $2,199,944
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</TABLE>
* Pursuant to Rule 0-11(a)(4) and (d) under the Securities Exchange Act of
1934, the transaction value is equal to the aggregate of the cash and the
value of the common shares without nominal or par value (the "Seagram
Shares") of The Seagram Company Ltd. ("Seagram") offered by Seagram in the
offer (the "Offer") by Seagram to acquire all of the issued shares, par value
NLG 0.50 per share (the "PolyGram Shares"), of PolyGram N.V. The amount of
cash offered by Seagram in the Offer ($8,952,912,577) is equal to the cash
consideration offered per PolyGram Share (NLG 115), multiplied by the maximum
number of PolyGram Shares to be received by Seagram in the Offer
(145,216,242) in exchange for cash, and converted into dollars based on the
Noon Buying Rate of NLG 1.8653 per $1 on October 29, 1998. The value of the
Seagram Shares offered by Seagram in the Offer ($2,046,806,760) is equal to
the maximum number of PolyGram Shares to be received by Seagram in the Offer
(34,783,758) in exchange for the Seagram Shares offered, multiplied by the
average of the high and low prices per PolyGram Share as reported on the New
York Stock Exchange Composite Transactions Tape on October 29, 1998
($58.84375).
[X] 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 filing.
<TABLE>
<S> <C> <C> <C>
Amount Previously Paid: $436,863 Filing Party: The Seagram Company
Ltd. -- La Compagnie
Seagram Ltee.
Form or Registration No.: Registration No. 333-61535 Date Filed: August 14, 1998
</TABLE>
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<PAGE> 2
OFFER
This Tender Offer Statement on Schedule 14D-1 relates to the offer by The
Seagram Company Ltd., a corporation organized under the laws of Canada
("Seagram"), upon the terms and subject to the conditions set forth in the
Offering Circular/Prospectus dated November 4, 1998 (the "Offering
Circular/Prospectus"), a copy of which is attached hereto as Exhibit 11(a)(1),
and in the related Letter of Transmittal/Election Form and Application Form/Deed
of Transfer, copies of which are attached hereto as Exhibits 11(a)(2) and
11(a)(3), respectively (collectively, as any of the foregoing may be amended or
supplemented from time to time, the "Offer"), to acquire all issued shares, par
value NLG 0.50 per share ("PolyGram Shares"), of PolyGram N.V., a corporation
incorporated under the laws of the Netherlands ("PolyGram"), not already owned
by Seagram or its affiliates for, at the election of each holder of PolyGram
Shares, per share consideration of either (i) 1.3772 common shares without
nominal or par value ("Seagram Shares") of Seagram (the "Share Consideration")
or (ii) NLG 115, net to the seller in cash (the "Cash Consideration" and,
together with the Share Consideration, the "Offer Consideration"); provided,
that Share Consideration shall be paid in respect of 34,783,758 PolyGram Shares
and Cash Consideration shall be paid in respect of all other tendered PolyGram
Shares.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is PolyGram N.V. and its principal
executive offices are located at Gerrit van der Veenlaan 4, 3743 DN Baarn, the
Netherlands.
(b) The exact title of the securities being sought is shares, par value NLG
0.50 per share, of PolyGram. The information set forth on the cover page and
under the captions "The Offer" and "Description of PolyGram Capital Stock" of
the Offering Circular/Prospectus is incorporated herein by reference.
(c) The information set forth under the caption "Summary -- Comparative
Market Prices and Dividends" of the Offering Circular/Prospectus is incorporated
herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d) and (g) This statement is being filed by Seagram. The information
set forth under the captions "Summary -- The Seagram Company Ltd." and "The
Seagram Company Ltd." of, and in Schedule I to, the Offering Circular/Prospectus
is incorporated herein by reference.
(e) and (f) During the last five years, neither Seagram, nor, to the best
of Seagram's knowledge, any of the persons listed in Schedule I to the Offering
Circular/Prospectus (i) has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding 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
laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) The information set forth on the cover page and under the captions
"Summary," "The Offer," "Description of Transaction Agreements" and "The Seagram
Company Ltd." of the Offering Circular/ Prospectus is incorporated herein by
reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATIONS.
(a)-(c) The consideration to be provided to PolyGram's shareholders
pursuant to the Offer will, in part, be Seagram Shares. The information set
forth on the cover page and under the captions "Summary" and "The Offer" of the
Offering Circular/Prospectus is incorporated herein by reference.
ITEM 5. PURPOSE OF OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) The information set forth under the captions "Summary," "The Offer"
and "Description of Transaction Agreements" of the Offering Circular/Prospectus
is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) The information set forth on the cover page and under the caption
"The Seagram Company Ltd." of the Offering Circular/Prospectus is incorporated
herein by reference.
2
<PAGE> 3
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES
The information set forth on the cover page and under the captions
"Summary," "The Offer," and "Description of Transaction Agreements" of the
Offering Circular/Prospectus is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth under the caption "The Offer -- Fees and Expenses
of the Offer" of the Offering Circular/Prospectus is incorporated herein by
reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth under the captions "Summary -- Seagram Selected
Historical Consolidated Financial Data" and "The Seagram Company Ltd. Unaudited
Pro Forma Financial Information" of the Offering Circular/Prospectus is
incorporated herein by reference. In addition, the audited historical
consolidated financial statements and the notes thereto of Seagram set forth on
pages 18 to 48 of Exhibit 99(a) to Seagram's Annual Report on Form 10-K (the
"Form 10-K") for the fiscal year ended June 30, 1998, as amended, are
incorporated herein by reference. The Form 10-K may be inspected and copies may
be obtained at the places and in the manner described in the Offering
Circular/Prospectus under the captions "Available Information" and
"Incorporation of Certain Documents by Reference," which information is
incorporated herein by reference. The incorporation by reference herein of the
above-referenced financial information does not constitute an admission that
such information is material to a decision by a PolyGram shareholder whether to
sell, tender or hold PolyGram Shares being sought in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
(a) Except as set forth in Item 3 or 7 of this Statement, there are no
present or proposed material contracts, arrangements, understandings or
relationships between Seagram or any of its executive officers, directors,
controlling persons or subsidiaries, on the one hand, and PolyGram or any
members of the PolyGram Board of Management or the PolyGram Supervisory Board,
any PolyGram officers, controlling persons or subsidiaries, on the other hand,
that would be material to a decision by holders of PolyGram Shares whether to
tender PolyGram Shares pursuant to the terms of the Offer.
(b) and (c) The information set forth under the captions "The
Offer -- Certain Conditions of the Offer" and "The Offer -- Certain Regulatory
Approvals and Legal Matters" of the Offering Circular/Prospectus is incorporated
herein by reference.
(d) The information set forth under the caption "The Offer -- Possible
Effects of the Offer on the Market for PolyGram Shares" of the Offering
Circular/Prospectus is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offering Circular/Prospectus, the
Letter of Transmittal/Election Form and the Application Form/Deed of Transfer,
copies of which are attached hereto as Exhibits 11(a)(1), 11(a)(2) and 11(a)(3),
is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
11(a)(1) Offering Circular/Prospectus dated November 4, 1998.
11(a)(2) Letter of Transmittal/Election Form.
11(a)(3) Application Form/Deed of Transfer.
11(a)(4) Notice of Guaranteed Delivery.
11(a)(5) Letter from the Dealer Managers to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
11(a)(6) Letter to Clients for use by Brokers, Dealers, Commercial Banks
and Other Nominees.
11(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
11(a)(8) Summary Advertisement dated November 4, 1998.
11(a)(9) Press Release dated November 4, 1998.
3
<PAGE> 4
11(a)(10) Form of Notice to Shareholders of PolyGram dated November 4, 1998
included in the Official Pricelist of the AEX Stock Exchange.
11(b) None.
11(c)(1) Offer Agreement dated as of June 21, 1998 among The Seagram
Company Ltd., PolyGram N.V. and Koninklijke Philips Electronics
N.V. (incorporated by reference to Exhibit 2.1 of the Current
Report on Form 8-K/A of The Seagram Company Ltd. dated July 2,
1998).
11(c)(2) Tender Agreement dated as of June 21, 1998 between The Seagram
Company Ltd. and Koninklijke Philips Electronics N.V.
(incorporated by reference to Exhibit 2.2 of the Current Report
on Form 8-K/A of The Seagram Company Ltd. dated July 2, 1998).
11(c)(3) Voting Agreement dated as of June 21, 1998 between The Seagram
Company Ltd. and Koninklijke Philips Electronics
N.V.(incorporated by reference to Exhibit 2.3 of the Current
Report on Form 8-K of The Seagram Company Ltd. dated June 22,
1998).
11(c)(4) Stockholders Agreement dated as of June 21, 1998 between The
Seagram Company Ltd. and Koninklijke Philips Electronics
N.V.(incorporated by reference to Exhibit 10.1 of the Current
Report on Form 8-K of The Seagram Company Ltd. dated June 22,
1998).
11(c)(5) Credit Agreement dated as of October 21, 1998 among Joseph E.
Seagram & Sons, Inc., as Borrower, The Seagram Company Ltd. and
J.E. Seagram Corp., as Guarantors, the Lenders Party thereto, The
Chase Manhattan Bank, as Administrative Agent, Citibank, N.A., as
Syndication Agent, and Bank of America NT & SA and Bank of
Montreal, as Co-Documentation Agents (incorporated by reference
to Exhibit 10.2 of the Registration Statement on Form S-4
(Registration No. 333-61535) of The Seagram Company Ltd.).
11(d) None.
11(e) Provided in Exhibit 11(a)(1).
11(f) None.
4
<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.
THE SEAGRAM COMPANY LTD.
By: /s/ ROBERT W. MATSCHULLAT
------------------------------------
Name: Robert W. Matschullat
Title: Vice Chairman and Chief
Financial Officer
Date: November 4, 1998
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -----------
<S> <C>
11(a)(1) Offering Circular/Prospectus dated November 4, 1998.
11(a)(2) Letter of Transmittal/Election Form.
11(a)(3) Application Form/Deed of Transfer.
11(a)(4) Notice of Guaranteed Delivery.
11(a)(5) Letter from the Dealer Managers to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
11(a)(6) Letter to Clients for use by Brokers, Dealers, Commercial
Banks and Other Nominees.
11(a)(7) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
11(a)(8) Summary Advertisement dated November 4, 1998.
11(a)(9) Press Release dated November 4, 1998.
11(a)(10) Form of Notice to Shareholders of PolyGram dated November 4,
1998 included in the Official Pricelist of the AEX Stock
Exchange.
11(b) None.
11(c)(1) Offer Agreement dated as of June 21, 1998 among The Seagram
Company Ltd., PolyGram N.V. and Koninklijke Philips
Electronics N.V. (incorporated by reference to Exhibit 2.1
of the Current Report on Form 8-K/A of The Seagram Company
Ltd. dated July 2, 1998).
11(c)(2) Tender Agreement dated as of June 21, 1998 between The
Seagram Company Ltd. and Koninklijke Philips Electronics
N.V. (incorporated by reference to Exhibit 2.2 of the
Current Report on Form 8-K/A of The Seagram Company Ltd.
dated July 2, 1998).
11(c)(3) Voting Agreement dated as of June 21, 1998 between The
Seagram Company Ltd. and Koninklijke Philips Electronics
N.V.(incorporated by reference to Exhibit 2.3 of the Current
Report on Form 8-K of The Seagram Company Ltd. dated June
22, 1998).
11(c)(4) Stockholders Agreement dated as of June 21, 1998 between The
Seagram Company Ltd. and Koninklijke Philips Electronics
N.V.(incorporated by reference to Exhibit 10.1 of the
Current Report on Form 8-K of The Seagram Company Ltd. dated
June 22, 1998).
11(c)(5) Credit Agreement dated as of October 21, 1998 among Joseph
E. Seagram & Sons, Inc., as Borrower, The Seagram Company
Ltd. and J.E. Seagram Corp., as Guarantors, the Lenders
Party thereto, The Chase Manhattan Bank, as Administrative
Agent, Citibank, N.A., as Syndication Agent, and Bank of
America NT & SA and Bank of Montreal, as Co-Documentation
Agents (incorporated by reference to Exhibit 10.2 of the
Registration Statement on Form S-4 (Registration No.
333-61535) of The Seagram Company Ltd.).
11(d) None.
11(e) Provided in Exhibit 11(a)(1).
11(f) None.
</TABLE>
<PAGE> 1
Exhibit 11(a)(1)
OFFERING CIRCULAR/PROSPECTUS
Exchange Offer for
All Issued Shares
of
PolyGram N.V.
for
NLG 115 in Cash or
1.3772 Common Shares of
The Seagram Company Ltd.
------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 3:00 P.M.,
AMSTERDAM TIME (9:00 A.M., NEW YORK CITY TIME), ON FRIDAY, DECEMBER 4, 1998,
UNLESS THE OFFER IS EXTENDED.
------------------------
The Seagram Company Ltd., a corporation organized under the laws of Canada
("Seagram"), hereby offers, upon the terms and subject to the conditions set
forth herein and in the related Application Form or Letter of Transmittal, as
applicable (collectively, the "Offer"), to acquire all issued shares, par value
NLG 0.50 per share ("PolyGram Shares"), of PolyGram N.V., a corporation
incorporated under the laws of the Netherlands ("PolyGram"), not already owned
by Seagram or its affiliates for, at the election of each holder of PolyGram
Shares, per share consideration of either (i) 1.3772 common shares without
nominal or par value ("Seagram Shares") of Seagram (the "Share Consideration")
or (ii) NLG 115, net to the seller in cash (the "Cash Consideration" and,
together with the Share Consideration, the "Offer Consideration"); provided,
that Share Consideration shall be paid in respect of 34,783,758 PolyGram Shares
and Cash Consideration shall be paid in respect of all other tendered PolyGram
Shares. See "The Offer -- Limited Availability of Share Consideration." Holders
of PolyGram U.S. Registered Shares will receive all cash payments pursuant to
the Offer in US Dollars unless the holder elects to receive all such payments in
Dutch Guilders. See "Exchange Rates" and "The Offer -- Procedure for Tendering
PolyGram Shares -- For Holders of PolyGram U.S. Registered Shares -- Currency
Election."
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn pursuant to the Offer a number of PolyGram
Shares which, when added to any PolyGram Shares previously acquired by Seagram,
constitutes at least 95% of the issued share capital of PolyGram as of the
Expiration Date (the "Minimum Condition"). Seagram may waive the Minimum
Condition at any time, subject to certain limitations if the Offer Agreement
referred to below is terminated. As of the date of this Offering
Circular/Prospectus, Seagram does not own any PolyGram Shares. The Offer is also
subject to other terms and conditions which PolyGram shareholders should
carefully consider. See "The Offer -- Certain Conditions of the Offer."
Seagram and Koninklijke Philips Electronics N.V., a corporation incorporated
under the laws of the Netherlands ("Philips") and the beneficial owner of
135,000,000, or 75%, of the 180,000,000 issued PolyGram Shares as of the date of
this Offering Circular/Prospectus, have entered into (i) a tender agreement
dated as of June 21, 1998 (the "Tender Agreement") pursuant to which Philips has
agreed, among other things, for so long as the Offer Agreement is in effect, to
validly tender pursuant to and in accordance with the terms of the Offer and not
withdraw such tender of all of its PolyGram Shares and to elect to receive Share
Consideration in respect of all of its PolyGram Shares, (ii) a voting agreement
dated as of June 21, 1998 (the "Voting Agreement") relating to the voting of
such PolyGram Shares prior to consummation of the Offer and (iii) a stockholders
agreement dated as of June 21, 1998 (the "Stockholders Agreement") pursuant to
which Seagram and Philips have agreed to certain arrangements relating to
Philips' ownership of Seagram Shares following consummation of the Offer. See
"Description of Transaction Agreements -- Tender Agreement," "-- Voting
Agreement" and "-- Stockholders Agreement." In addition, to the extent fully
permitted by law, PolyGram has agreed to validly tender pursuant to the Offer
and not withdraw such tender of all of the PolyGram Shares held in treasury as
of the Expiration Date and to elect to receive Cash Consideration in respect of
all such PolyGram Shares. PolyGram has informed Seagram that 1,645,526, or
approximately 0.9%, of the issued PolyGram Shares were held in treasury as of
September 30, 1998. As of the date of this Offering Circular/Prospectus, no
other PolyGram shareholder has confirmed to Seagram that it will accept the
Offer.
Each of the PolyGram Board of Management, by unanimous vote, and the
PolyGram Supervisory Board, by affirmative vote of all directors (other than two
designees of Philips, who abstained), has determined that the Offer is in the
best interests of PolyGram and is fair to the PolyGram shareholders, has
approved the Offer Agreement and recommends that PolyGram shareholders tender
their PolyGram Shares in the Offer. See "The Offer -- PolyGram's Reasons for the
Offer; Recommendation of the PolyGram Board of Management and the PolyGram
Supervisory Board."
The Offer is being made pursuant to an offer agreement dated as of June 21,
1998 among Seagram, PolyGram and Philips (the "Offer Agreement") which provides
for, among other things, the making of the Offer by Seagram. Any PolyGram
shareholders who do not tender their PolyGram Shares will remain shareholders of
PolyGram following consummation of the Offer until such time as Seagram acquires
at least 95% of the issued PolyGram Shares and the Enterprise Division of the
Court of Appeals in Amsterdam subsequently approves a compulsory acquisition
(the "Compulsory Acquisition") of the
(continued on next page)
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS OFFERING CIRCULAR/PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Dealer Managers for the Offer are:
MORGAN STANLEY DEAN WITTER
and
BEAR, STEARNS & CO. INC.
November 4, 1998
<PAGE> 2
(continued from prior page)
remaining minority PolyGram Shares pursuant to the Dutch Civil Code (the "DCC").
Those PolyGram shareholders who do not tender their PolyGram Shares pursuant to
the Offer are not entitled to receive consideration for their PolyGram Shares
from Seagram at any time subsequent to the consummation of the Offer unless
Seagram effects the Compulsory Acquisition or otherwise agrees to acquire such
holder's PolyGram Shares in accordance with applicable law. See "The
Offer -- Purpose of the Offer; Plans for PolyGram."
Following consummation of the Offer, Seagram intends to effect a corporate
reorganization of PolyGram and its subsidiaries (the "Reorganization") which may
include, among other things, the transfer of subsidiaries from PolyGram to
affiliates of Seagram for fair market value and the distribution of
substantially all the proceeds received from such transfers as a dividend (a
"Post-Closing Dividend") to PolyGram shareholders. See "The Offer -- Purpose of
the Offer; Plans for PolyGram -- Post-Closing Restructuring; Post-Closing
Dividend." Receipt of a Post-Closing Dividend by non-tendering PolyGram
shareholders could have adverse tax consequences to such shareholders. See
"Certain Material Tax Consequences -- Tax Consequences of a Post-Closing
Dividend."
------------------------
IMPORTANT
The Offer is being made to all holders of PolyGram Shares, whether held in
the form of PolyGram CF-Shares, PolyGram K-Shares, PolyGram Dutch Registered
Shares or PolyGram U.S. Registered Shares. For purposes of this Offering
Circular/Prospectus, (i) "PolyGram CF-Shares" means PolyGram Shares held in
bearer form in the Netherlands and administered through the book-entry system of
the Netherlands Central Institute for Book-Entry Securities Transactions
("NECIGEF"), (ii) "PolyGram K-Shares" means PolyGram Shares held in bearer
certificated form, (iii) "PolyGram Dutch Registered Shares" means PolyGram
Shares registered in book-entry form in the shareholders' registry held at the
offices of PolyGram in Baarn, the Netherlands (the "Netherlands Registry"), (iv)
"Dutch PolyGram Shares" means, collectively, the PolyGram CF-Shares, the
PolyGram K-Shares and the PolyGram Dutch Registered Shares and (v) "PolyGram
U.S. Registered Shares" means PolyGram Shares held in certificated form and
registered in the shareholders' registry in New York City, for which Citibank,
N.A. serves as the transfer agent and registrar (the "New York Registry"). See
"Description of PolyGram Capital Stock" for additional information regarding the
PolyGram Shares.
Any holder of PolyGram CF-Shares desiring to tender all or any portion of
such holder's PolyGram CF-Shares must, in accordance with the procedures of the
bank or other custodian through which such PolyGram CF-Shares are held (any such
bank or other custodian, a "Custodian"), instruct such Custodian (by completing
and signing the application form/deed of transfer relating to the Dutch PolyGram
Shares provided with this Offering Circular/Prospectus (the "Application Form"),
if so required by such Custodian) that such holder wishes to tender such
holder's PolyGram CF-Shares in the Offer. See "The Offer -- Procedure for
Tendering PolyGram Shares -- For Holders of Dutch PolyGram Shares -- PolyGram
CF-Shares."
Any holder of PolyGram K-Shares desiring to tender all or any portion of
such holder's PolyGram K-Shares must complete and sign the Application Form in
accordance with the instructions in the Application Form and mail or deliver the
Application Form, together with any other documents required by the Application
Form and the certificates representing the tendered PolyGram K-Shares (including
talon and all dividend coupons numbered as from number 9), to MeesPierson N.V.
(the "Dutch Exchange Agent") (or, to the extent any holder of PolyGram K-Shares
has deposited such shares with a Custodian, such holder must direct the
Custodian to so complete, sign and deliver the Application Form on such holder's
behalf, together with such other documents and such share certificates to the
Dutch Exchange Agent). See "The Offer -- Procedure for Tendering PolyGram
Shares -- For Holders of Dutch PolyGram Shares -- PolyGram K-Shares."
Any holder of PolyGram Dutch Registered Shares desiring to tender all or any
portion of such holder's PolyGram Dutch Registered Shares must complete and sign
the Application Form in accordance with the instructions in the Application Form
and mail or deliver the Application Form, together with any other documents
required by the Application Form, to the Dutch Exchange Agent. See "The
Offer -- Procedure for Tendering PolyGram Shares -- For Holders of Dutch
PolyGram Shares -- PolyGram Dutch Registered Shares."
Any holder of PolyGram U.S. Registered Shares desiring to tender all or any
portion of such holder's PolyGram U.S. Registered Shares must either (i)
complete and sign the letter of transmittal/election form provided with this
Offering Circular/Prospectus (the "Letter of Transmittal") in accordance with
the instructions in the Letter of Transmittal, mail or deliver the Letter of
Transmittal, together with any other documents required by the Letter of
Transmittal to Citibank, N.A. (the "U.S. Exchange Agent" and, together with the
Dutch Exchange Agent, the "Exchange Agents"), and either deliver the
certificates representing the tendered PolyGram U.S. Registered Shares to the
U.S. Exchange Agent or tender such PolyGram U.S. Registered Shares pursuant to
the procedure for book-entry transfer described herein or (ii) request such
shareholder's broker, dealer, commercial bank, trust company or other nominee to
effect the transaction for such shareholder. Holders of PolyGram U.S. Registered
Shares having shares 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 they desire to tender such
PolyGram U.S. Registered Shares. See "The Offer -- Procedure for Tendering
PolyGram Shares -- For Holders of PolyGram U.S. Registered Shares." A holder of
PolyGram U.S. Registered Shares who desires to tender PolyGram U.S. Registered
Shares and whose share certificates are not immediately available, or who cannot
comply with the procedure for book-entry transfer on a timely basis, may tender
such PolyGram U.S. Registered Shares by following the procedures for guaranteed
delivery described herein. See "The Offer -- Procedure for Tendering PolyGram
Shares -- For Holders of PolyGram U.S. Registered Shares -- Guaranteed
Delivery."
------------------------
Questions and requests for assistance may be directed to Morgan Stanley &
Co. Incorporated or Bear, Stearns & Co. Inc. (together, the "Dealer Managers"),
the Dutch Exchange Agent, the U.S. Exchange Agent or D.F. King & Co., Inc. (the
"Information Agent"), at their respective addresses and telephone numbers set
forth on the back cover of this Offering Circular/Prospectus. Holders of Dutch
PolyGram Shares may obtain copies of this Offering Circular/Prospectus and the
related Application Form from the Dutch Exchange Agent or from banks and other
Custodians participating in NECIGEF. Holders of PolyGram U.S. Registered Shares
may obtain copies of this Offering Circular/Prospectus, a Letter of Transmittal
and a notice of guaranteed delivery ("Notice of Guaranteed Delivery") from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
------------------------
Seagram and its subsidiaries may purchase PolyGram Shares during but outside
of the Offer, subject to certain conditions, pursuant to relief from Rule 10b-13
under the United States Securities Exchange Act of 1934, as amended (the "U.S.
Exchange Act"), granted by the United States Securities and Exchange Commission
(the "SEC"). See "The Offer -- Purpose of the Offer; Plans for
PolyGram -- Possible Purchases of PolyGram Shares Outside the Offer."
ii
<PAGE> 3
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS
OFFERING CIRCULAR/PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS OFFERING
CIRCULAR/ PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES OFFERED HEREBY, NOR DOES
IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS
UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE
DELIVERY OF THIS OFFERING CIRCULAR/PROSPECTUS AT ANY TIME NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS
OFFERING CIRCULAR/PROSPECTUS. NO ACTION HAS BEEN OR WILL BE TAKEN IN ANY
JURISDICTION BY SEAGRAM OR ANY AFFILIATE THEREOF, POLYGRAM, PHILIPS OR THE
DEALER MANAGERS THAT WOULD PERMIT A PUBLIC OFFERING OF THE SECURITIES OFFERED
HEREBY OR POSSESSION OR DISTRIBUTION OF THIS OFFERING CIRCULAR/PROSPECTUS IN ANY
JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED, OTHER THAN IN THE UNITED
STATES, THE NETHERLANDS, CANADA AND THE UNITED KINGDOM. PERSONS INTO WHOSE
POSSESSION THIS OFFERING CIRCULAR/PROSPECTUS COMES ARE REQUIRED TO INFORM
THEMSELVES ABOUT AND TO OBSERVE ANY RESTRICTIONS AS TO THE OFFERING OF THE
SECURITIES OFFERED HEREBY AND THE DISTRIBUTION OF THIS OFFERING
CIRCULAR/PROSPECTUS.
------------------------
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) PolyGram shareholders in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, Seagram may, in its sole discretion, take such action as
it may deem necessary to make the Offer in any such jurisdiction and extend the
Offer to PolyGram shareholders in such jurisdiction. In any jurisdiction where
the securities, blue sky or other laws require the Offer to be made on behalf of
Seagram by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of Seagram by the Dealer Managers or one or more registered brokers or
dealers that are licensed under the laws of such jurisdiction.
------------------------
iii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AVAILABLE INFORMATION....................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 1
FORWARD-LOOKING STATEMENTS.................................. 2
EXCHANGE RATES.............................................. 3
SUMMARY..................................................... 4
THE OFFER................................................... 23
Background of the Offer................................... 23
Purpose of the Offer; Plans for PolyGram.................. 26
Possible Effects of the Offer on the Market for PolyGram
Shares................................................. 30
Seagram's Reasons for the Offer........................... 31
PolyGram's Reasons for the Offer; Recommendation of the
PolyGram Board of Management and the PolyGram
Supervisory Board...................................... 33
Opinion of PolyGram Financial Advisor..................... 34
Terms of the Offer........................................ 40
Offer Consideration....................................... 43
Election Procedures....................................... 44
Limited Availability of Share Consideration............... 45
Procedure for Tendering PolyGram Shares................... 47
Withdrawal Rights......................................... 50
Acceptance of Tendered Shares; Delivery of the Offer
Consideration.......................................... 51
Dividends and Distributions............................... 53
Certain Conditions of the Offer........................... 54
Source and Amount of Funds................................ 57
Fees and Expenses of the Offer............................ 59
Certain Regulatory Approvals and Legal Matters............ 59
Interests of Certain Persons in the Offer................. 63
Accounting Treatment...................................... 65
Listing of Seagram Shares................................. 65
CERTAIN MATERIAL TAX CONSEQUENCES........................... 66
Certain Tax Consequences of the Sale of PolyGram Shares... 66
Tax Consequences of a Post-Closing Dividend............... 68
Certain Tax Consequences of Holding Seagram Shares........ 69
DESCRIPTION OF TRANSACTION AGREEMENTS....................... 72
Offer Agreement........................................... 72
Tender Agreement.......................................... 87
Voting Agreement.......................................... 88
Stockholders Agreement.................................... 88
THE SEAGRAM COMPANY LTD. UNAUDITED PRO FORMA FINANCIAL
INFORMATION............................................... 93
THE SEAGRAM COMPANY LTD. ................................... 99
Recent Developments....................................... 100
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT OF THE SEAGRAM COMPANY LTD. ................... 101
POLYGRAM N.V. .............................................. 104
Recent Developments....................................... 104
DESCRIPTION OF SEAGRAM CAPITAL STOCK........................ 105
Preferred Shares.......................................... 105
Seagram Shares............................................ 105
DESCRIPTION OF POLYGRAM CAPITAL STOCK....................... 106
PolyGram CF-Shares........................................ 106
PolyGram K-Shares......................................... 106
PolyGram Dutch Registered Shares.......................... 106
PolyGram U.S. Registered Shares........................... 106
</TABLE>
iv
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
COMPARISON OF RIGHTS OF HOLDERS OF POLYGRAM SHARES AND
SEAGRAM SHARES............................................ 107
Voting Rights and Quorum.................................. 107
Amendment to Charter and By-Laws.......................... 108
Special Meetings.......................................... 108
Shareholder Consents in Lieu of Meeting................... 109
Board of Management and Supervisory Board................. 109
Election of Directors and Director Qualifications......... 109
Removal of Directors...................................... 110
Vacancies on the Board of Directors....................... 111
Bearer Shares............................................. 111
Preemptive Rights......................................... 111
Dividends................................................. 112
Dissenters' Rights........................................ 112
Derivative Action......................................... 113
Oppression Remedy......................................... 113
Fiduciary Duties of Directors............................. 114
Indemnification of Officers and Directors................. 114
Director Liability........................................ 115
Anti-Takeover Provisions; Interested Stockholder
Transactions........................................... 115
Stockholder Votes on Certain Reorganizations.............. 116
LEGAL MATTERS............................................... 116
EXPERTS..................................................... 116
JURISDICTION RESPECTING SEAGRAM............................. 116
SCHEDULE I.................................................. I-1
APPENDIX A - Opinion of Lazard Freres & Co. LLC............. A-1
APPENDIX B - Certain Information Required by the Dutch
Merger Code............................................... B-1
</TABLE>
v
<PAGE> 6
INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
TERMS PAGE
- ----- ----
<S> <C>
$.................................... 3
Act on the Supervision of the
Securities Trade 1995.............. 12
AEX.................................. 12
Agents............................... 58
Agent's Message...................... 47
Allied Domecq........................ 38
Amsterdam Exchanges.................. 6
Antitrust Condition.................. 41
Antitrust Division................... 60
Applicable Pension Continuation
Period............................. 80
Applicable Percentage................ 88
Application Form..................... ii
Audit Committee...................... 89
Bear Stearns......................... 59
Beverage Companies................... 38
Bid Loans............................ 58
Book-Entry Confirmation.............. 8
Book-Entry Transfer Facility......... 8
Branded Food Companies............... 38
Bronfman Family...................... 99
Brown-Forman......................... 38
C.BFT................................ 102
Canadian Director.................... 61
Cash Amount.......................... 78
Cash Consideration................... i
Cash Election........................ 44
CBCA................................. 105
CBT.................................. 102
CBT II............................... 102
City Code............................ 29
Closing.............................. 8
Closing Date......................... 8
Commencement Date.................... 5
Common Shares........................ 89
Community dimension.................. 60
Competition Act...................... 61
Compulsory Acquisition............... i
Conversion Ratio..................... 78
CRBFT................................ 102
CRBDT................................ 102
CR.BT................................ 102
Credit Facility...................... 57
Custodian............................ ii
Date of Termination.................. 64
DCC.................................. ii
DCF.................................. 37
Dealer Managers...................... ii
Debt Rating.......................... 58
Designee............................. 13
Diageo............................... 38
DuPont............................... 38
</TABLE>
<TABLE>
<CAPTION>
TERMS PAGE
- ----- ----
<S> <C>
Dutch Exchange Agent................. ii
Dutch Law............................ 8
Dutch Merger Code.................... 6
Dutch Merger Committee............... 56
Dutch PolyGram Shares................ ii
Dutch Securities Board............... 12
EBIT................................. 36
EBITDA............................... 35
EEA.................................. 60
Election............................. 44
Eligible Institution................. 48
EMBT................................. 102
EMI.................................. 36
Enterprise Division.................. 27
Entertainment Companies.............. 36
EPS.................................. 39
EU Condition......................... 41
European Commission.................. 11
Exchange Agents...................... ii
Existing Credit Facilities........... 58
Existing JES Facility................ 58
Existing Seagram Facility............ 58
Expenses............................. 86
Expiration Date...................... 6
Federal Reserve Board................ 31
Film Segment......................... 35
Film Transactions.................... 37
First Preferred Shares............... 105
FTC.................................. 55
Fund................................. 64
General Benefits Continuation
Period............................. 79
General Meeting...................... 108
Goldman Sachs........................ 10
HSR Act.............................. 11
ICA.................................. 60
Indemnifiable Person................. 114
Information Agent.................... ii
Investment Canada.................... 61
JES.................................. 11
Lazard Freres........................ 5
Lenders.............................. 57
Letter of Intent..................... 23
Letter of Transmittal................ ii
LIBOR................................ 58
LLC.................................. 93
LSE.................................. 15
LTM.................................. 36
LYONs................................ 105
Margin Credit Regulations............ 62
Market Sale.......................... 90
Material Adverse Effect.............. 57
MCA.................................. 36
</TABLE>
vi
<PAGE> 7
<TABLE>
<CAPTION>
TERMS PAGE
- ----- ----
<S> <C>
Media Index.......................... 39
Merger Regulation.................... 41
Metromedia........................... 37
MGM.................................. 4
the minority shareholders............ 27
Minimum Condition.................... i
Morgan Stanley Dean Witter........... 59
Music Segment........................ 35
Music Transactions................... 36
NASDAQ............................... 31
NECIGEF.............................. ii
Netherlands Holder................... 66
Netherlands Registry................. ii
New York Registry.................... ii
News Corp............................ 36
NLG.................................. 3
Non-Canadian Holders................. 66
Non-Electing Share................... 6
Non-Netherlands Holder............... 67
Notice of Guaranteed Delivery........ ii
NYSE................................. 1
Offer................................ i
Offer Agreement...................... i
Offer Conditions..................... 9
Offer Consideration.................. i
Offer Fee............................ 59
PBBT/EMBFT........................... 102
Pepsi................................ 4
Permitted Tender Offer............... 89
Permitted Transferee................. 88
Pernod Ricard........................ 38
Philips.............................. i
Philips Plans........................ 80
Philips Trademarks................... 82
The Policies......................... 115
PolyGram............................. i
PolyGram Articles.................... 27
PolyGram CF-Shares................... ii
PolyGram Consolidated Financial
Statements......................... 20
PolyGram Dutch Registered Shares..... ii
PolyGram K-Shares.................... ii
PolyGram SEC Reports................. 86
PolyGram Shares...................... i
PolyGram U.S. Registered Shares...... ii
POS Regulations...................... 1
Post-Closing Dividend................ ii
Preferred Shares..................... 105
Private Placement.................... 90
Registration Statement............... 1
Related party........................ 115
Remy Cointreau....................... 38
Reorganization....................... ii
</TABLE>
<TABLE>
<CAPTION>
TERMS PAGE
- ----- ----
<S> <C>
Revolving Credit Loans............... 58
S&P 500 Index........................ 39
Schedule 14D-1....................... 1
Schedule 14D-9....................... 2
Seagram.............................. i
Seagram Articles..................... 105
Seagram By-laws...................... 105
Seagram Material Adverse Effect...... 86
Seagram SEC Reports.................. 86
Seagram Shares....................... i
SEC.................................. ii
Second Preferred Shares.............. 105
Severance Agreement.................. 64
Share Consideration.................. i
Share Election....................... 44
Share Value.......................... 78
Sony................................. 36
Special Meeting...................... 12
Spinoff Company...................... 92
Spirits Companies.................... 38
Spirits Index........................ 39
Stockholders Agreement............... i
Tax Act.............................. 66
Tender Agreement..................... i
Tendered Shares...................... 5
Termination Date..................... 72
Theme Parks.......................... 38
Time Warner.......................... 36
TIN.................................. 50
Transaction Agreements............... 33
Transfer............................. 87
Tropicana............................ 4
TSE.................................. 12
Turner............................... 37
U.S. Exchange Act.................... ii
U.S. Exchange Agent.................. ii
U.S. GAAP............................ 17
U.S. Holder.......................... 67
U.S. Securities Act.................. 1
U.S.-Netherlands Treaty.............. 68
Underwritten Offering................ 90
Universal............................ 4
US $................................. 3
US Dollars........................... 3
USA Networks Transaction............. 17
USAi................................. 17
USAi Transaction..................... 17
UTV.................................. 93
Viacom............................... 36
Virgin............................... 36
Voting Agreement..................... i
Voting Shares........................ 88
Walt Disney.......................... 36
</TABLE>
vii
<PAGE> 8
AVAILABLE INFORMATION
Seagram and PolyGram are each subject to the informational requirements of
the U.S. Exchange Act, and in accordance therewith file reports, proxy
statements (in the case of Seagram) and other information with the SEC. The
reports, proxy statements and other information filed by Seagram and PolyGram
with the SEC can be inspected and copied at the public reference facilities
maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's Regional Offices at 7 World Trade
Center, 13th Floor, New York, New York 10048, and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Please call the SEC at 1-800-SEC-0330 for further
information relating to the public reference rooms. Copies of such material also
can be obtained from the Public Reference Section of the SEC at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the SEC maintains a worldwide web site (http://www.sec.gov) that
contains certain reports, proxy statements and other information regarding
registrants, such as Seagram, that file electronically with the SEC. Material
filed by Seagram and PolyGram also can be inspected at the offices of the New
York Stock Exchange, Inc. (the "NYSE"), 20 Broad Street, New York, New York
10005.
Seagram has filed with the SEC a Registration Statement on Form S-4
(together with any amendments thereto, the "Registration Statement") under the
United States Securities Act of 1933, as amended (the "U.S. Securities Act"),
with respect to the Seagram Shares to be offered as Share Consideration. Seagram
will be filing a Tender Offer Statement on Schedule 14D-1 (together with any
amendments thereto, the "Schedule 14D-1") with the SEC in connection with the
Offer. This Offering Circular/Prospectus does not contain all the information
set forth in the Registration Statement or the Schedule 14D-1 and the exhibits
thereto. Such additional information may be obtained from the SEC's principal
office in Washington, D.C. Statements contained in this Offering
Circular/Prospectus or in any document incorporated in this Offering
Circular/Prospectus by reference as to the contents of any contract or other
document referred to herein or therein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or the Schedule 14D-1 or such other
document, each such statement being qualified in all respects by such reference.
Seagram has also published a prospectus relating to the Seagram Shares to
be issued as Share Consideration in accordance with the Public Offers of
Securities Regulations 1995 of the United Kingdom (the "POS Regulations"). A
copy of that prospectus has been delivered to the Registrar of Companies in
England and Wales for registration in accordance with Regulation 4(2) of the POS
Regulations. Copies of that prospectus will be available, without charge, from
the offices of Seagram at The Ark, 201 Talgarth Road, London W6 8BN until the
Expiration Date.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC by Seagram (File No. 1-2275)
pursuant to the U.S. Exchange Act are incorporated by reference in this Offering
Circular/Prospectus:
1. Seagram's Annual Report on Form 10-K for the fiscal year ended June
30, 1998, as amended; and
2. Seagram's Current Reports on Form 8-K dated July 20, 1998, August
4, 1998, August 25, 1998, as amended, and September 1, 1998, as amended.
The following documents submitted to the SEC by PolyGram (File No. 1-10387)
pursuant to the U.S. Exchange Act are incorporated by reference in this Offering
Circular/Prospectus:
1. PolyGram's Annual Report on Form 20-F for the year ended December
31, 1997; and
2. PolyGram's Reports on Form 6-K dated February 3, 1998, February 11,
1998, March 9, 1998, April 3, 1998, April 21, 1998, May 5, 1998, May 26,
1998, June 4, 1998, June 29, 1998, July 9, 1998, July 22, 1998, August 4,
1998, September 22, 1998 and October 21, 1998.
All documents and reports filed or submitted by Seagram and PolyGram
pursuant to Section 13(a), 13(c), 14 or 15(d) of the U.S. Exchange Act after the
date of this Offering Circular/Prospectus and prior to
1
<PAGE> 9
the termination of the Offer (including PolyGram's Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") to be filed pursuant to Rules
14d-9 and 14e-2 under the U.S. Exchange Act) shall be deemed to be incorporated
by reference in this Offering Circular/Prospectus and to be a part hereof from
the dates of filing of such documents or reports. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Offering
Circular/Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Offering Circular/Prospectus.
THIS OFFERING CIRCULAR/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE HEREIN) ARE AVAILABLE, WITHOUT CHARGE, TO ANY PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS OFFERING CIRCULAR/PROSPECTUS IS DELIVERED, ON
WRITTEN OR ORAL REQUEST, IN THE CASE OF DOCUMENTS RELATING TO SEAGRAM, TO THE
SECRETARY OF SEAGRAM, CARE OF JOSEPH E. SEAGRAM & SONS, INC., 375 PARK AVENUE,
NEW YORK, NEW YORK 10152, TELEPHONE (212) 572-7000; OR, IN THE CASE OF DOCUMENTS
RELATING TO POLYGRAM, TO MR. PIETER-PAUL KESSLER, COMPANY SECRETARY, CARE OF
POLYGRAM N.V., GERRIT VAN DER VEENLAAN 4, 3743 DN BAARN, THE NETHERLANDS,
TELEPHONE 011-31-35-5489-159. IN ORDER TO ENSURE TIMELY DELIVERY OF DOCUMENTS,
ANY REQUEST SHOULD BE MADE NO LATER THAN FIVE BUSINESS DAYS PRIOR TO THE
EXPIRATION DATE, AS IT MAY BE EXTENDED FROM TIME TO TIME.
All information contained or incorporated by reference in this Offering
Circular/Prospectus relating to Seagram and the Offer has been supplied by
Seagram, all such information relating to PolyGram has been supplied by PolyGram
and all such information relating to Philips has been supplied by Philips, or
has been taken from or based upon publicly available documents on file with the
SEC and other publicly available information. Although Seagram does not have any
knowledge that would indicate that any of the information relating to PolyGram
or Philips is inaccurate or untrue in any material respect, no assurance can be
given that no facts or events of which it is unaware exist that may affect the
significance or accuracy of the information furnished.
FORWARD-LOOKING STATEMENTS
This Offering Circular/Prospectus contains or incorporates by reference
statements which constitute "forward-looking statements," in that they include
statements regarding the intent, belief or current expectations of Seagram, its
directors or its officers with respect to the future operating performance of
Seagram, both before and after the consummation of the Offer. Such statements
include any forecasts, projections and descriptions of anticipated cost savings
or other synergies. PolyGram shareholders are cautioned that any such
forward-looking statements are not guarantees of future performance and may
involve risks and uncertainties, and that actual results may differ from those
set forth in the forward-looking statements as a result of various factors
(including, without limitation, the actions of competitors, future global
economic conditions, market conditions, foreign exchange rates, failure of
Seagram to consummate the Offer on a timely basis or at all, operating and
financial risks related to managing growth and integrating acquired businesses
and, if the Offer is consummated, failure by Seagram to integrate the respective
operations of Seagram and PolyGram or to achieve the cost savings expected from
the acquisition of PolyGram), many of which are beyond the control of Seagram.
The occurrence of any such factors not currently expected by Seagram would
significantly alter the results set forth in these statements.
2
<PAGE> 10
EXCHANGE RATES
PolyGram publishes its consolidated financial statements in Dutch Guilders,
the Cash Consideration is in Dutch Guilders and certain other amounts are
presented in Dutch Guilders. In this Offering Circular/ Prospectus, references
to "NLG" are to Dutch Guilders and references to "US Dollars," "US $" or "$" are
to United States Dollars.
The following table sets out, for the periods and dates indicated, certain
information concerning the Noon Buying Rate for United States Dollars for Dutch
Guilders expressed in Dutch Guilders per $1. On October 30, 1998, the Noon
Buying Rate was $1 = NLG 1.87.
<TABLE>
<CAPTION>
PERIOD AVERAGE
CALENDAR PERIOD END RATE(1) HIGH LOW
--------------- ------ ------- ---- ---
(NLG PER $1)
<S> <C> <C> <C> <C>
1993............................................... 1.95 1.87 1.96 1.76
1994............................................... 1.74 1.81 1.95 1.67
1995............................................... 1.60 1.61 1.75 1.52
1996............................................... 1.73 1.69 1.76 1.61
1997............................................... 2.03 1.96 2.12 1.73
1998 (through October 30, 1998).................... 1.87 2.00 2.09 1.81
</TABLE>
- ------------
(1) The average of the Noon Buying Rates on the last day of each month during
the period.
3
<PAGE> 11
SUMMARY
The following is a summary of certain information contained elsewhere or
incorporated by reference in this Offering Circular/Prospectus. It is not, and
is not intended to be, complete in itself. Reference is made to, and this
Summary is qualified in its entirety by, the more detailed information contained
or incorporated by reference in this Offering Circular/Prospectus. PolyGram
shareholders are urged to read carefully this entire Offering
Circular/Prospectus and the documents incorporated by reference herein. Unless
otherwise defined herein, capitalized terms used in this Summary have the
respective meanings ascribed to them elsewhere in this Offering
Circular/Prospectus.
------------------------
THE SEAGRAM COMPANY LTD.
Seagram operates two core, global businesses: spirits and wine and
entertainment. Seagram's spirits and wine business is engaged principally in the
production and marketing of distilled spirits and wines, as well as coolers,
beers and mixers. The entertainment company, Universal Studios, Inc.
("Universal"), Seagram's 84%-owned subsidiary, produces and distributes motion
picture, television and home video products and recorded music; and operates
theme parks and retail stores.
The principal executive offices of Seagram are located at 1430 Peel Street,
Montreal, Quebec, Canada H3A 1S9, and its telephone number at such address is
(514) 849-5271.
RECENT DEVELOPMENTS
On August 25, 1998, Seagram sold Tropicana Products, Inc. and Seagram's
global juice business (collectively, "Tropicana") to PepsiCo, Inc. ("Pepsi") for
cash proceeds of approximately $3.3 billion. The after-tax proceeds from the
transaction will be used by Seagram to pay a part of the cash portion of the
Offer Consideration. See "The Offer -- Source and Amount of Funds."
POLYGRAM N.V.
PolyGram is an entertainment company involved in the music and film
businesses. The principal activity of PolyGram is the acquisition, production,
marketing, manufacture and distribution of recorded music. PolyGram also has
certain related activities such as music publishing. PolyGram is the largest
recorded music company in the world in terms of 1997 sales.
Philips owns 75% of the 180,000,000 issued PolyGram Shares as of the date
of this Offering Circular/Prospectus.
The principal executive offices of PolyGram are located at Gerrit van der
Veenlaan 4, 3743 DN Baarn, the Netherlands, and its telephone number at such
address is 011-31-35-5489-489.
RECENT DEVELOPMENTS
Pursuant to the Offer Agreement, PolyGram has retained a financial advisor
for the purpose of selling PolyGram's film division as promptly as practicable.
See "Description of Transaction Agreements -- Offer Agreement -- Sale of Film
Division." On October 22, 1998, Seagram announced that it had entered into an
agreement in principle with Metro-Goldwyn-Mayer Inc. ("MGM") to sell certain
library assets of PolyGram's film division (including the Epic, Island/Atlantic,
Palace and Virgin film libraries and certain other films released prior to March
31, 1996 constituting the PolyGram Filmed Entertainment Produced/
Acquired film libraries) to a direct or indirect wholly owned subsidiary of MGM
following Seagram's acquisition of PolyGram. The purchase price for the proposed
transaction would be approximately $250 million, with $235 million to be paid in
cash at the closing of such transaction and the remaining estimated $15 million
to be paid from operating cash flow from such assets prior to the expected
closing of such transaction in January 1999. The proposed transaction is subject
to the execution of definitive agreements, the consummation of the Offer, the
receipt of regulatory approvals and other customary closing conditions.
Discussions with other parties regarding the sale of certain other library
assets of PolyGram's film division have taken place, and Seagram is continuing
to examine strategic alternatives regarding the film division's production and
distribution operations.
4
<PAGE> 12
THE OFFER AND RELATED TRANSACTIONS
PURPOSE OF THE OFFER; PLANS FOR POLYGRAM
The purpose of the Offer is for Seagram to acquire control of, and the
entire equity interest in, PolyGram.
In the event that Seagram does not acquire the entire equity interest in
PolyGram upon consummation of the Offer, at such time as Seagram acquires at
least 95% of the issued PolyGram Shares, Seagram intends to pursue the
Compulsory Acquisition of any remaining PolyGram Shares pursuant to the DCC, as
described below under "The Offer -- Purpose of the Offer; Plans for
PolyGram -- Compulsory Acquisition."
In addition to pursuing the Compulsory Acquisition, Seagram intends to take
certain actions to reorganize PolyGram following consummation of the Offer.
Seagram is considering a number of alternatives to facilitate this objective.
One alternative would be for PolyGram to transfer subsidiaries to affiliates of
Seagram for fair market value. PolyGram would then declare and pay a pro rata
dividend of substantially all the proceeds as a Post-Closing Dividend to its
shareholders, consisting of Seagram (or an affiliate) and the remaining PolyGram
shareholders. Receipt of a Post-Closing Dividend by non-tendering PolyGram
shareholders could have adverse tax consequences to such shareholders and reduce
the amount payable in the Compulsory Acquisition. See "The Offer -- Purpose of
the Offer; Plans for PolyGram -- Post-Closing Restructuring; Post-Closing
Dividend" and "-- Compulsory Acquisition" and "Certain Material Tax
Consequences -- Tax Consequences of a Post-Closing Dividend."
Pursuant to the Offer Agreement, each of PolyGram and Philips has agreed,
subject to certain exceptions, to take actions, effective no earlier than the
consummation of the Offer, that are reasonably necessary or desirable to
accomplish the Compulsory Acquisition, the Reorganization and a Post-Closing
Dividend. See "Description of Transaction Agreements -- Offer
Agreement -- Post-Closing Restructuring."
RECOMMENDATION OF THE POLYGRAM BOARD OF MANAGEMENT AND THE POLYGRAM SUPERVISORY
BOARD
Each of the PolyGram Board of Management, by unanimous vote, and the
PolyGram Supervisory Board, by affirmative vote of all directors (other than two
designees of Philips, who abstained), has determined that the Offer is in the
best interests of PolyGram and is fair to the PolyGram shareholders, has
approved the Offer Agreement and recommends that PolyGram shareholders tender
their PolyGram Shares in the Offer. See "The Offer -- PolyGram's Reasons for the
Offer; Recommendation of the PolyGram Board of Management and the PolyGram
Supervisory Board."
OPINION OF POLYGRAM FINANCIAL ADVISOR
Lazard Freres & Co. LLC ("Lazard Freres"), the financial advisor to
PolyGram, has delivered its written opinion to the PolyGram Board of Management
and the PolyGram Supervisory Board to the effect that, based upon and subject to
various considerations set forth in such opinion and as of the date of such
opinion, the Offer Consideration is fair to PolyGram shareholders from a
financial point of view. A copy of the full text of the opinion of Lazard Freres
dated as of June 21, 1998, which sets forth the assumptions made, matters
considered and limitations on the review undertaken in connection with the
opinion, is attached hereto as Appendix A and should be read in its entirety.
See "The Offer -- Opinion of PolyGram Financial Advisor."
TERMS OF THE OFFER
The Offer is being made pursuant to the Offer Agreement in respect of all
issued PolyGram Shares and the terms and conditions of the Offer are the same
for all PolyGram shareholders. Upon the terms and subject to the conditions of
the Offer, Seagram will accept and pay for each PolyGram Share properly tendered
pursuant to the Offer from Wednesday, November 4, 1998, the date of commencement
of the Offer (the "Commencement Date"), until the Expiration Date for which the
tender is not properly withdrawn ("Tendered Shares") as described under "The
Offer -- Withdrawal Rights." The "Expiration Date" means 3:00 p.m., Amsterdam
time (9:00 a.m., New York City time), on Friday, December 4, 1998 unless and
until Seagram shall have extended the period of time during which the Offer is
open in accordance with the Offer
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<PAGE> 13
Agreement, in which event "Expiration Date" shall mean the latest time and date
at which the Offer, as so extended, shall expire.
If Seagram is unable to consummate the Offer at the then-current Expiration
Date due to the failure of any of the Offer Conditions to be satisfied or
waived, it will, unless the Offer Agreement is terminated in accordance with its
terms (see "Description of Transaction Agreements -- Offer
Agreement -- Termination") extend the Offer and set a subsequent scheduled
Expiration Date, and will continue to so extend the Offer and set subsequent
scheduled Expiration Dates, until the later of December 31, 1998 and 60 days
following the satisfaction or waiver of certain conditions (provided that under
no circumstances is Seagram required to extend the Offer past June 21, 1999).
See "Description of Transaction Agreements -- The Offer Agreement -- Offer."
During any extension of the Offer, PolyGram Shares tendered prior to such
extension will continue to be Tendered Shares, subject to the rights of a
tendering PolyGram shareholder to withdraw such holder's tender. See "The
Offer -- Terms of the Offer" and "-- Certain Conditions of the Offer."
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by public announcement no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date in accordance with the public announcement requirements of Rule 14d-4(c)
under the U.S. Exchange Act. Any announcement will also comply with the Listing
and Issuing Rules (Fondsenreglement) of Amsterdam Exchanges N.V. ("Amsterdam
Exchanges") and the SER-Besluit Fusiegedragsregels 1975 (the "Dutch Merger
Code").
Seagram may, at any time, transfer or assign to one or more of its
subsidiaries (organized or incorporated under the laws of Canada, the United
States, the Netherlands or any other jurisdiction, provided, that such other
jurisdiction would not impose a withholding tax on the payment of the Offer
Consideration) the right to purchase all or any portion of the Tendered Shares,
but any such transfer or assignment will not relieve Seagram of its obligations
under the Offer or prejudice the rights of tendering PolyGram shareholders to
receive payment for the Tendered Shares which are accepted pursuant to the
Offer.
Seagram and its subsidiaries may purchase PolyGram Shares during but
outside of the Offer, subject to certain conditions, pursuant to relief from
Rule 10b-13 under the U.S. Exchange Act granted by the SEC. See "The
Offer -- Purpose of the Offer; Plans for PolyGram -- Possible Purchases of
PolyGram Shares Outside the Offer."
OFFER CONSIDERATION; ELECTION PROCEDURES
Upon the terms and subject to the conditions of the Offer, the Offer will
commit Seagram to acquire each Tendered Share for, at the election of the
holder, either (i) 1.3772 Seagram Shares, subject to certain anti-dilution
adjustments described under "The Offer -- Election Procedures," or (ii) NLG 115
net to the seller in cash, provided, that Share Consideration will be paid in
respect of 34,783,758 Tendered Shares and Cash Consideration will be paid in
respect of all other Tendered Shares. See "The Offer -- Offer Consideration" and
"-- Limited Availability of Share Consideration."
Seagram will not issue any fractional Seagram Shares in the Offer. In lieu
of any fractional Seagram Shares, each tendering PolyGram shareholder who would
otherwise be entitled to receive a fractional Seagram Share will receive an
amount in cash (without interest) determined by multiplying the fractional
interest in a Seagram Share to which such shareholder would otherwise be
entitled by NLG 83.50.
Each Tendered Share for which a valid Share Election has been received will
be exchanged for Share Consideration in the Offer, subject to the limitations
described below under "The Offer -- Limited Availability of Share
Consideration," and except, as noted above, that fractional shares will not be
issued in the Offer.
Each Tendered Share for which a valid Cash Election has been received and
each Tendered Share as to which a valid Election is not in effect on the
Expiration Date (a "Non-Electing Share") will be exchanged for Cash
Consideration in the Offer. If Seagram determines that any Election is not
properly made with respect to any Tendered Shares, such Election shall be deemed
to be not in effect, and the Tendered Shares covered by such Election shall, for
purposes of the Offer, be deemed to be Non-Electing Shares.
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<PAGE> 14
See "The Offer -- Election Procedures" for a description of the procedures
for making and changing an Election.
LIMITED AVAILABILITY OF SHARE CONSIDERATION
Pursuant to the Offer Agreement, Share Consideration will be paid in
respect of 34,783,758 Tendered Shares (an aggregate of 47,904,191 Seagram
Shares) and Cash Consideration will be paid in respect of all other Tendered
Shares. For so long as the Offer Agreement is in effect, Philips has agreed to
validly tender pursuant to and in accordance with the terms of the Offer and not
withdraw such tender of all of its PolyGram Shares and to elect to receive Share
Consideration in respect of all of its PolyGram Shares. See "Description of
Transaction Agreements -- Tender Agreement -- Tender and Election." If no other
PolyGram shareholder makes a Share Election, Philips will receive an aggregate
of 47,904,191 Seagram Shares in the Offer in respect of 34,783,758 of its
PolyGram Shares and Cash Consideration in respect of its remaining PolyGram
Shares. If PolyGram shareholders (other than Philips) make Share Elections, all
such shareholders (including Philips) will have an equal opportunity to receive
Share Consideration in the Offer (based on the number of Tendered Shares in
respect of which each such holder (including Philips) has made a Share
Election), subject to the limitation that Share Consideration will be paid in
respect of an aggregate of 34,783,758 Tendered Shares. To the extent Share
Elections are made in respect of more than 34,783,758 shares, each tendering
PolyGram shareholder making a Share Election will receive Share Consideration in
respect of a portion of such shares and Cash Consideration in respect of the
remainder of such shares. See "The Offer -- Limited Availability of Share
Consideration" for examples illustrating the potential outcomes available to
tendering PolyGram shareholders making a Share Election.
Pursuant to the Offer Agreement, to the extent fully permitted by law,
PolyGram has agreed to validly tender pursuant to the Offer and not withdraw
such tender of all of the PolyGram Shares held in treasury as of the Expiration
Date (1,645,526, or approximately 0.9% of the issued PolyGram Shares, as of
September 30, 1998) and to elect to receive Cash Consideration in respect of
such PolyGram Shares. PolyGram has informed Seagram that, consistent with its
historical practice, it intends to deliver treasury shares, to the extent
available, rather than issue additional PolyGram Shares in connection with the
exercise of PolyGram stock options prior to the Expiration Date (3,548,704 of
which were outstanding as of September 30, 1998). Accordingly, the number of
PolyGram Shares held in treasury will decrease to the extent PolyGram stock
options are exercised prior to the Expiration Date.
PROCEDURE FOR TENDERING POLYGRAM SHARES
Any holder of PolyGram CF-Shares who wishes to tender its PolyGram
CF-Shares must instruct such holder's Custodian to that effect in accordance
with the procedures of, and in any event before the date (which will precede the
Expiration Date) established by, the Custodian (including by completing and
signing the Application Form if so required by the Custodian). See "The
Offer -- Procedures for Tendering PolyGram Shares -- For Holders of Dutch
PolyGram Shares."
In order for PolyGram K-Shares and PolyGram Dutch Registered Shares to be
validly tendered pursuant to the Offer, the Application Form provided with this
Offering Circular/Prospectus, properly completed and duly executed, together
with any documents required by the Application Form and, in the case of PolyGram
K-Shares, the share certificates representing the Tendered Shares (including
talon and all dividend coupons numbered as from number 9), must be delivered by
the holder thereof (or, to the extent a holder of PolyGram K-Shares has
deposited such shares with a Custodian, delivered by the Custodian on such
holder's behalf) and received by the Dutch Exchange Agent at its address set
forth on the back cover of this Offering Circular/ Prospectus on or prior to the
Expiration Date. See "The Offer -- Procedures for Tendering PolyGram
Shares -- For Holders of Dutch PolyGram Shares."
In order for PolyGram U.S. Registered Shares to be validly tendered
pursuant to the Offer, the Letter of Transmittal, properly completed and duly
executed, together with any required signature guarantees, or an Agent's Message
in connection with a book-entry delivery of PolyGram U.S. Registered Shares, and
any other documents required by the Letter of Transmittal, must be received by
the U.S. Exchange Agent at one of its
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<PAGE> 15
addresses set forth on the back cover of this Offering Circular/Prospectus on or
prior to the Expiration Date and either (i) the share certificates evidencing
tendered PolyGram U.S. Registered Shares must be received by the U.S. Exchange
Agent at such address or such PolyGram U.S. Registered Shares must be tendered
pursuant to the procedure for book-entry transfer and a timely confirmation (a
"Book-Entry Confirmation") of a book-entry transfer of such PolyGram U.S.
Registered Shares into the U.S. Exchange Agent's account at The Depository Trust
Company (the "Book-Entry Transfer Facility") must be received by the U.S.
Exchange Agent, in each case on or prior to the Expiration Date, or (ii) the
guaranteed delivery procedures must be complied with. See "The
Offer -- Procedures for Tendering PolyGram Shares -- For Holders of PolyGram
U.S. Registered Shares."
Holders of PolyGram U.S. Registered Shares will receive all cash payments
pursuant to the Offer in US Dollars unless the holder elects to receive all such
payments in Dutch Guilders. Holders of PolyGram U.S. Registered Shares who
tender PolyGram U.S. Registered Shares by book-entry transfer and wish to
receive cash payments pursuant to the Offer in Dutch Guilders instead of US
Dollars must also (i) provide the U.S. Exchange Agent with (A) wire instructions
for an account in the Netherlands to which such payment may be made or (B) an
address to which a check for such payment may be mailed and (ii) submit with
their Letter of Transmittal a copy of the Agent's Message used to tender such
PolyGram U.S. Registered Shares. Holders of PolyGram U.S. Registered Shares who
elect to receive cash payments pursuant to the Offer in Dutch Guilders and who
do not tender such shares by book-entry transfer must have their signature on
the Letter of Transmittal guaranteed by an Eligible Institution. See "The
Offer -- Procedure for Tendering PolyGram Shares -- For Holders of PolyGram U.S.
Registered Shares -- Currency Election."
THE METHOD OF DELIVERY OF TENDERED SHARES AND ALL OTHER REQUIRED DOCUMENTS,
INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY OR NECIGEF, IS AT
THE OPTION AND RISK OF THE TENDERING POLYGRAM SHAREHOLDER. 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.
WITHDRAWAL RIGHTS
Tenders of PolyGram Shares made pursuant to the Offer are irrevocable,
except that tenders of PolyGram Shares pursuant to the Offer may be withdrawn at
any time on or prior to the Expiration Date and, unless theretofore accepted by
Seagram pursuant to the Offer, may also be withdrawn at any time after January
2, 1999 (or such later date as may apply in case the Offer is extended), in each
case to the fullest extent permitted by the U.S. Exchange Act and the rules and
regulations promulgated thereunder and applicable Dutch Law. For a withdrawal of
a tender of PolyGram Shares to be effective, a written or telex transmission
notice of withdrawal must be timely received by the Dutch Exchange Agent with
respect to Dutch PolyGram Shares or the U.S. Exchange Agent with respect to
PolyGram U.S. Registered Shares at their respective addresses set forth on the
back cover of this Offering Circular/Prospectus. See "The Offer -- Withdrawal
Rights." Any PolyGram Shares for which the tender has been properly withdrawn
will thereafter be deemed not to have been validly tendered for purposes of the
Offer. However, PolyGram Shares for which the tender has been properly withdrawn
may be re-tendered at any time on or prior to the Expiration Date by following
one of the procedures described under "The Offer -- Procedure for Tendering
PolyGram Shares." For purposes of this Offering Circular/Prospectus, "Dutch Law"
means the laws of the Netherlands, including the DCC, the Dutch Merger Code and
the rules and regulations of Amsterdam Exchanges.
ACCEPTANCE OF TENDERED SHARES; DELIVERY OF THE OFFER CONSIDERATION
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), Seagram will accept pursuant to the Offer, and will pay Cash
Consideration or issue Share Consideration for, all Tendered Shares promptly
after the Expiration Date (the time at which Seagram acquires the Tendered
Shares, the "Closing," and the date on which the Closing occurs, the "Closing
Date"). See "The Offer -- Acceptance of Tendered Shares; Delivery
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<PAGE> 16
of the Offer Consideration." Seagram acknowledges that Rule 14e-1(c) under the
U.S. Exchange Act requires Seagram to pay the Offer Consideration or return the
Tendered Shares promptly after the termination or withdrawal of the Offer.
Payment for tendered Dutch PolyGram Shares accepted pursuant to the Offer
will be made only after timely receipt by the Dutch Exchange Agent of (i) in the
case of PolyGram CF-Shares, confirmation from NECIGEF of a book-entry transfer
of such PolyGram CF-Shares into the Dutch Exchange Agent's account at NECIGEF
pursuant to the procedures set forth under "The Offer -- Procedure for Tendering
PolyGram Shares -- For Holders of Dutch PolyGram Shares -- PolyGram CF-Shares,"
(ii) in the case of PolyGram K-Shares, the Application Form, properly completed
and duly executed, together with any documents required by such form and the
certificates representing the tendered PolyGram K-Shares (including talon and
all dividend coupons numbered as from number 9) and (iii) in the case of
PolyGram Dutch Registered Shares, the Application Form, properly completed and
duly executed, together with any documents required by such form.
Payment for tendered PolyGram U.S. Registered Shares accepted pursuant to
the Offer will be made only after timely receipt by the U.S. Exchange Agent of
(i) share certificates for tendered PolyGram U.S. Registered Shares, or a
Book-Entry Confirmation, pursuant to the procedures set forth under "The
Offer -- Procedure for Tendering PolyGram Shares -- For Holders of PolyGram U.S.
Registered Shares," (ii) the Letter of Transmittal, properly completed and duly
executed, with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, and (iii) any other documents required by
the Letter of Transmittal.
If, prior to the Expiration Date, Seagram increases the Offer
Consideration, such increased consideration will be given to all PolyGram
shareholders whose PolyGram Shares are accepted pursuant to the Offer, whether
or not such PolyGram Shares were tendered prior to such increase in
consideration. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID PURSUANT TO THE
OFFER, REGARDLESS OF ANY DELAY IN MAKING ANY PAYMENT.
CERTAIN CONDITIONS TO THE OFFER
The Offer is conditioned on, among other things, the satisfaction or waiver
of the Minimum Condition. The Offer is also subject to other terms and
conditions, which PolyGram shareholders should carefully consider (collectively,
the "Offer Conditions"). See "The Offer -- Certain Conditions of the Offer."
Seagram expressly reserves the right (but shall not be obligated), in its sole
discretion, to waive any or all of the Offer Conditions (including the Minimum
Condition) and make any changes, to the extent permitted by the Offer Agreement,
Dutch Law and other applicable law, to the terms and conditions of the Offer (or
extend the Offer beyond a scheduled Expiration Date if any of the Offer
Conditions are not satisfied), subject to certain exceptions described under
"The Offer -- Terms of the Offer" and "-- Certain Conditions of the Offer." In
addition, under Dutch Law, a material change in the terms of the Offer may
obligate Seagram to terminate the Offer and commence a new offer for PolyGram
Shares. In the event of any such termination, Seagram would return all Tendered
Shares to tendering PolyGram shareholders. PolyGram shareholders would have the
opportunity to tender their shares in any new offer. See "The Offer -- Certain
Conditions of the Offer."
POLYGRAM BOARD REPRESENTATION
Pursuant to the Offer Agreement, Philips has agreed to cause, upon
Seagram's request, the members of the Supervisory Board of PolyGram to resign as
of the Closing Date, except for any member who Seagram indicates it would like
to remain as a member of such Board. As soon as practicable after the
Commencement Date, Seagram will provide PolyGram and Philips with the names of
the individuals Seagram wishes to be appointed to, or remain as members of, the
Board of Management and the Supervisory Board of PolyGram effective as of the
Closing Date. Philips has agreed to cause such appointments to take place
effective as of the Closing Date. As a result of its ownership of PolyGram
Shares following the Closing, Seagram will have significant influence as to the
nomination of new members to the PolyGram Board of Management and the PolyGram
Supervisory Board, as to the decisions of the PolyGram shareholders with respect
to, among other things, the election of such nominees and as to the decisions of
such Boards. See "The Offer -- Purpose of the Offer; Plans for
PolyGram -- PolyGram Board Representation."
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<PAGE> 17
CONDUCT OF BUSINESS PRIOR TO CLOSING
Under the Offer Agreement, pending consummation of the Offer, PolyGram and
its subsidiaries are subject to certain operating covenants. See "Description of
Transaction Agreements -- Offer Agreement -- Conduct of Business Prior to
Closing."
TREATMENT OF POLYGRAM STOCK OPTIONS
The Offer Agreement provides that each PolyGram stock option that remains
outstanding on the Closing Date will become fully vested and exercisable on the
Closing Date. In addition, on the Closing Date, each such stock option will be
converted, upon the holder's election (on an option by option basis), into
either (i) an option to acquire a number of Seagram Shares or (ii) an amount of
cash, in each case determined in accordance with a formula set forth in the
Offer Agreement. See "Description of Transaction Agreements -- Offer
Agreement -- PolyGram Stock Options."
SALE OF FILM DIVISION
Pursuant to the Offer Agreement, PolyGram has retained Goldman Sachs
International ("Goldman Sachs") as its principal financial advisor for the
purpose of selling PolyGram's film division as promptly as practicable. The sale
process is being managed by a three-member committee consisting of one designee
of each of Seagram, PolyGram and Philips; provided, that Seagram has the right
to veto, in its sole discretion, any decision of such committee, including
approval of any specific proposal to sell the film division. Each of Seagram,
PolyGram and Philips has agreed to use its reasonable best efforts to effect
such sale. If a sale of PolyGram's film division is closed prior to the Closing,
the sale proceeds will be retained in PolyGram for the benefit of Seagram. If an
agreement to sell the film division is not entered into prior to the Closing,
following the Closing Seagram may continue the efforts to effect such sale. See
"Description of Transaction Agreements -- Offer Agreement -- Sale of Film
Division." On October 22, 1998, Seagram announced that it had entered into an
agreement in principle with MGM to sell certain library assets of PolyGram's
film division to a direct or indirect wholly owned subsidiary of MGM following
Seagram's acquisition of PolyGram. Discussions with other parties regarding the
sale of certain other library assets of PolyGram's film division have taken
place, and Seagram is continuing to examine strategic alternatives regarding the
film division's production and distribution operations. See "PolyGram
N.V. -- Recent Developments."
CONTRIBUTION
Pursuant to the Offer Agreement, immediately prior to the Closing, Philips
will contribute $90 million in cash to PolyGram (after giving effect to any
applicable taxes payable by PolyGram arising out of such contribution) unless
Seagram, Philips and PolyGram mutually agree to an alternative arrangement.
Philips will not be entitled to any capital stock of PolyGram or any other
consideration from PolyGram in exchange for such contribution.
TERMINATION
The Offer Agreement may be terminated prior to the Closing Date in certain
circumstances specified in the Offer Agreement, including:
(i) by mutual written consent of Seagram, PolyGram and Philips;
(ii) by any party thereto, if the Closing Date shall not have occurred
on or before the Termination Date, subject to certain limited exceptions;
(iii) by any party thereto, if any governmental entity has (a) issued
a final and nonappealable order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the Offer and
related transactions or (b) failed to issue an order, decree or ruling or
to take any other action which is necessary to fulfill the conditions
described in clauses (d) and (e) under "The Offer -- Certain Conditions to
the Offer," and such failure has become final and nonappealable;
(iv) by Seagram, if (a) any of the representations and warranties of
PolyGram or Philips that are qualified by reference to a Material Adverse
Effect are not true and correct, or any such representations
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<PAGE> 18
and warranties that are not so qualified are not true and correct in any
respect that is reasonably expected to result in a Material Adverse Effect,
in each case as if made at the time of determination (except to the extent
any such representation or warranty speaks to an earlier date), and which
failure to be so true and correct is not reasonably likely to be cured by
the Termination Date, (b) any of the covenants or agreements of PolyGram or
Philips is breached in any material respect and such breach is not
reasonably likely to be cured by the Termination Date or (c) since December
31, 1997 there has occurred any event, change or development which has had
or would be reasonably expected to result in a Material Adverse Effect
(other than as disclosed in the PolyGram SEC Reports publicly available
prior to June 21, 1998 or in PolyGram's disclosure schedules to the Offer
Agreement), and which event, change or development is not reasonably
expected to be cured by the Termination Date;
(v) by Philips, if (a) any of the representations and warranties of
Seagram that are qualified by reference to a Seagram Material Adverse
Effect are not true and correct, or any such representations and warranties
that are not so qualified are not true and correct in any respect that is
reasonably expected to result in a Seagram Material Adverse Effect, in each
case as if made at the time of determination (except to the extent any such
representation or warranty speaks to an earlier date), and which failure to
be so true and correct is not reasonably likely to be cured by the
Termination Date, (b) any of the covenants or agreements of Seagram is
breached in any material respect and such breach is not reasonably likely
to be cured by the Termination Date or (c) since December 31, 1997 there
has occurred any event, change or development which has had or would be
reasonably expected to result in a Seagram Material Adverse Effect (other
than as disclosed in the Seagram SEC Reports publicly available prior to
June 21, 1998 or in Seagram's disclosure schedules to the Offer Agreement),
and which event, change or development is not reasonably expected to be
cured by the Termination Date;
(vi) by either Seagram or Philips, if the other has failed to perform
or comply with any material agreement or covenant in the Tender Agreement
or the Voting Agreement that has not been cured within 5 days after notice
of such breach; or
(vii) by Philips, if there has occurred any event described below in
the third paragraph under "Description of Transaction
Agreements -- Stockholders Agreement -- Termination."
Any termination described in clause (iv) above will be effective as of the
next scheduled Expiration Date so long as any failure described in clause (a) or
(b) thereof or event, change or development described in clause (c) thereof has
not been cured prior to such Expiration Date. Any termination described in
clause (v) above will be effective as of the second business day immediately
preceding the next scheduled Expiration Date so long as any failure described in
clause (a) or (b) thereof or event, change or development described in clause
(c) thereof has not been cured prior to such business day.
See "Description of Transaction Agreements -- Offer Agreement --
Termination."
SOURCE OF FUNDS
The Cash Consideration, the refinancing of certain of PolyGram's existing
indebtedness and the fees and expenses relating to the Offer will be partially
financed through Seagram's sale of Tropicana to Pepsi, the after-tax proceeds of
which are estimated to be approximately $3 billion. See "The Seagram Company
Ltd. -- Recent Developments." Seagram expects to obtain the remaining funds from
debt securities, the terms of which have yet to be determined, to be issued by
Joseph E. Seagram & Sons, Inc., an Indiana corporation and an indirect wholly
owned subsidiary of Seagram ("JES"), and expected to be guaranteed by Seagram,
and/or commercial bank borrowings and/or the issuance of commercial paper, the
terms of which have yet to be determined. See "The Offer -- Source and Amount of
Funds."
CERTAIN REGULATORY APPROVALS AND LEGAL MATTERS
The consummation of the Offer requires certain approvals of or notices to
U.S. and Dutch, Canadian and other non-U.S. state, federal and other regulatory
bodies, including, among other things, the expiration of all waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), confirmation of the Commission of the European Communities (the
"European Commission") that the Offer Agreement and the matters arising
therefrom are compatible with the common market and approvals under Canada's
Competition Act. The waiting period requirements under the HSR Act expired on
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<PAGE> 19
July 8, 1998, and the European Commission and the Canadian Competition Act
approvals were granted on September 21, 1998 and September 16, 1998,
respectively. In addition, on September 17, 1998, the Stichting Toezicht
Effectenverkeer (the "Dutch Securities Board") granted an exemption from Section
3, paragraph 1 of the Wet Toezicht Effectenverkeer 1995 (the "Act on the
Supervision of the Securities Trade 1995"), thereby allowing Seagram to offer
the Share Consideration in the Netherlands. Each of Seagram and PolyGram also
has submitted to the Dutch Merger Committee information required by Article 8 of
the Dutch Merger Code, and Seagram has submitted to the Dutch Merger Committee
and Amsterdam Exchanges this Offering Circular/Prospectus for their review. No
assurance can be made, however, that a challenge to the Offer will not be made
during any other applicable regulatory proceedings. Any such challenge could
impose conditions on the consummation of the Offer or otherwise require changes
to the terms of the Offer, which could result in conditions to the Offer not
being satisfied. See "The Offer -- Certain Regulatory Approvals and Legal
Matters" and "The Offer -- Certain Conditions to the Offer."
POLYGRAM SHAREHOLDER SPECIAL MEETING
In connection with the Offer, PolyGram will duly call, give notice of,
convene and hold an extraordinary meeting of PolyGram shareholders (the "Special
Meeting"). The Special Meeting will also constitute an informational meeting for
PolyGram shareholders pursuant to Dutch Law. The Special Meeting will be held no
later than eight days prior to the initial scheduled Expiration Date. PolyGram
will give notice of the time, date and location of such meeting. At the Special
Meeting, Seagram designees will be nominated for election to the Board of
Management and the Supervisory Board of PolyGram effective as of the Closing
Date (see "The Offer -- Purpose of the Offer; Plans for PolyGram -- PolyGram
Board Representation") and amendments to the PolyGram Articles will be submitted
to the PolyGram shareholders which would (i) clarify the Board of Management's
ability to declare dividends, including a Post-Closing Dividend (see "The
Offer -- Purpose of the Offer; Plans for PolyGram -- Post Closing Restructuring"
and "Certain Material Tax Consequences -- Tax Consequences of a Post-Closing
Dividend") and (ii) change PolyGram's fiscal year end from December 31 to June
30. Each of these amendments would be conditioned on the Minimum Condition
having been satisfied (but not waived) and effective as of the consummation of
the Offer. Philips has informed Seagram that it intends to vote in favor of the
Seagram designees and the amendments to the PolyGram Articles. See "Description
of Transaction Agreements -- Voting Agreement."
INTERESTS OF CERTAIN PERSONS IN THE OFFER
In considering the recommendations by the PolyGram Board of Management and
the PolyGram Supervisory Board with respect to the Offer, PolyGram shareholders
should be aware that certain members of the PolyGram Board of Management and the
PolyGram Supervisory Board, as well as certain other members of PolyGram's
management, may have certain interests in the Offer that are different from, or
in addition to, the interests of PolyGram shareholders as such. The Board of
Management and Supervisory Board of PolyGram each recognized such interests and
determined that such interests neither supported nor detracted from the fairness
of the Offer to PolyGram shareholders. The two current Philips executives who
are members of the PolyGram Supervisory Board abstained from such Board's vote
on matters relating to the Offer and the Offer Agreement. See "The
Offer -- Interests of Certain Persons in the Offer."
ACCOUNTING TREATMENT
The acquisition of PolyGram will be accounted for as a purchase for
financial accounting purposes in accordance with United States generally
accepted accounting principles. See "The Offer -- Accounting Treatment."
LISTING OF SEAGRAM SHARES
Pursuant to the Offer Agreement, Seagram has agreed to use its best efforts
to cause the Seagram Shares to be issued as Share Consideration to be authorized
for listing, upon official notice of issuance, on the NYSE and the Toronto Stock
Exchange (the "TSE"). Seagram does not intend to cause the Seagram Shares to be
authorized for listing on the AEX-Effectenbeurs N.V. (AEX Stock Exchange; the
"AEX") in Amsterdam.
12
<PAGE> 20
CERTAIN MATERIAL TAX CONSEQUENCES
Certain residents of the Netherlands may be subject to tax on the receipt
of Cash Consideration and/or Share Consideration pursuant to the Offer or of
consideration pursuant to the Compulsory Acquisition. See "Certain Material Tax
Consequences -- Certain Tax Consequences of the Sale of PolyGram Shares."
The receipt by a U.S. Holder of Offer Consideration pursuant to the Offer
or of consideration pursuant to the Compulsory Acquisition will be a taxable
transaction for U.S. federal income tax purposes. In general, a U.S. Holder who
receives Offer Consideration for PolyGram Shares will recognize gain or loss for
U.S. federal income tax purposes equal to the difference between (i) the amount
of Cash Consideration and the fair market value of any Share Consideration
received in exchange for PolyGram Shares sold pursuant to the Offer or the
Compulsory Acquisition and (ii) such shareholder's adjusted basis in such sold
PolyGram Shares. See "Certain Material Tax Consequences -- Certain Tax
Consequences of the Sale of PolyGram Shares."
Any dividend, including a Post-Closing Dividend, paid by PolyGram to the
remaining shareholders of PolyGram will be subject to Dutch dividend withholding
tax on the entire amount of the dividend or a portion thereof. A Netherlands
Holder may generally credit the Dutch dividend withholding tax in full or in
part against Dutch (corporate) income tax due over the dividend received. A
Non-Netherlands Holder may be eligible for a reduction or refund of such Dutch
dividend withholding tax under a tax treaty which is in effect between the
shareholder's country of residence and the Netherlands. For a further discussion
of taxes on minority shareholders of PolyGram, see "Certain Material Tax
Consequences -- Tax Consequences of a Post-Closing Dividend."
Because Seagram is a Canadian corporation, PolyGram shareholders who elect
to receive Seagram Shares should be aware that, as holders of Seagram Shares,
they will be subject to Canadian tax laws that do not apply to holders of
PolyGram Shares. Specifically, investors should be aware that income received in
respect of Seagram Shares could be subject to Canadian withholding tax. For a
discussion of tax considerations relating to an investment in Seagram Shares,
see "Certain Material Tax Consequences -- Certain Tax Consequences of Holding
Seagram Shares."
TENDER AND VOTING AGREEMENTS
Philips has agreed, for so long as the Offer Agreement is in effect, to
validly tender pursuant to and in accordance with the terms of the Offer and not
withdraw such tender of all of its 135,000,000 PolyGram Shares (75% of the
issued PolyGram Shares as of the date of this Offering Circular/Prospectus) and
to elect to receive Share Consideration in respect of all such PolyGram Shares.
See "Description of Transaction Agreements -- Tender Agreement -- Tender and
Election." Pursuant to the Offer Agreement, Philips may terminate the Offer
Agreement in the circumstances described under "Description of Transaction
Agreements -- Offer Agreement -- Termination," including certain circumstances
relating to a Seagram Material Adverse Effect as described in paragraph
(v) thereunder. Upon termination of the Offer Agreement in accordance with its
terms, the Tender Agreement and Philips' obligation to tender and not withdraw
such tender of its PolyGram Shares pursuant thereto will terminate.
In addition, Philips has agreed to vote its PolyGram Shares (i) against any
action or agreement that could reasonably be expected to impede or delay the
Offer, including any action or agreement that could be reasonably expected to
materially diminish the benefits to Seagram of the Offer and related
transactions, and (ii) in favor of any action, agreement or proposal submitted
in any general meeting of PolyGram shareholders that is necessary or desirable
in connection with the Offer and related transactions. See "Description of
Transaction Agreements -- Voting Agreement." No other PolyGram shareholder has
agreed with Seagram or any affiliates of Seagram to tender any PolyGram Shares.
STOCKHOLDERS AGREEMENT
Pursuant to the Stockholders Agreement, Seagram and Philips have agreed to
certain arrangements relating to Philips' ownership of Seagram Shares following
consummation of the Offer.
Seagram Board of Directors. Pursuant to the Stockholders Agreement,
effective as of the Closing, Seagram has agreed to appoint the Chief Executive
Officer of Philips (the "Designee") to the Seagram Board of Directors. After the
Closing, Philips will be entitled to designate its then Chief Executive Officer
as its Designee for nomination for election to the Seagram Board of Directors
for so long as the Applicable
13
<PAGE> 21
Percentage is at least 5%. Seagram has agreed to use its best efforts to cause
the election of the Designee to the Seagram Board of Directors, including by
nominating such individual to be elected to the Seagram Board. See "Description
of Transaction Agreements -- Stockholders Agreement -- Seagram Board of
Directors." No other changes in the Seagram Board of Directors are expected as a
result of the Offer.
Voting. Philips has agreed to vote any Voting Shares beneficially owned by
it to cause each of the nominees designated by the Seagram Board to be elected
to the Seagram Board of Directors.
In connection with any vote of the shareholders of Seagram relating to any
matter other than election of directors, unless Seagram otherwise consents in
writing, Philips has agreed to vote any Voting Shares beneficially owned by it,
at Philips' option, either proportionately on the same basis as the other
holders of Voting Shares so vote or as recommended by the Seagram Board of
Directors. See "Description of Transaction Agreements -- Stockholders
Agreement -- Voting."
Restrictions on Transfer. Philips has agreed that, without the consent of
Seagram, subject to certain exceptions, Philips will not transfer any Voting
Shares beneficially owned by Philips. See "Description of Transaction
Agreements -- Stockholders Agreement -- Restrictions on Transfer during Two
Years Following the Closing," "-- Restrictions on Transfer after Two Years
Following the Closing" and "-- Right of First Offer."
Standstill. Philips has agreed that it will not, and will cause each of
its subsidiaries not to, directly or indirectly, acquire, or agree to acquire,
by purchase or otherwise, beneficial ownership of any Voting Shares (except
pursuant to the Offer or by way of stock dividends, stock reclassifications or
other distributions or offerings made available to holders of Voting Shares
generally).
Philips has also agreed that, except as expressly set forth in the
provisions of the Stockholders Agreement, it will not, and will cause its
subsidiaries not to, directly or indirectly, alone or in concert with others,
unless specifically requested in writing by the Chief Executive Officer of
Seagram or by a resolution of a majority of the Board of Directors of Seagram,
take certain actions or participate in certain transactions including, among
other things, any tender or exchange offer, merger, consolidation, share
exchange, business combination, recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction involving Seagram or any material
portion of its business or any purchase of all or any substantial part of the
assets of Seagram or any material portion of its business. See "Description of
Transaction Agreements -- Stockholders Agreement -- Standstill."
Registration Rights. The Stockholders Agreement grants Philips customary
rights with respect to the registration under the United States federal and
Canadian securities laws of offerings of Seagram Shares issued pursuant to the
Offer Agreement and held by Philips or any Permitted Transferee.
14
<PAGE> 22
COMPARATIVE MARKET PRICES AND DIVIDENDS
Seagram Shares are listed and traded on the NYSE, the TSE, the Montreal
Exchange, the Vancouver Stock Exchange and the London Stock Exchange (the "LSE")
(Symbol: VO) and are principally traded on the NYSE. PolyGram Shares are listed
on the AEX and the NYSE (Symbol: PLG) and are principally traded on the AEX. The
following table sets forth the high and low sale prices per share of Seagram
Shares as reported on the NYSE Composite Transactions Tape and the high and low
sale prices per share of PolyGram Shares as reported on the NYSE Composite
Transactions Tape and published in the Official Price List of the AEX.
POLYGRAM SHAREHOLDERS ARE URGED TO OBTAIN CURRENT QUOTATIONS FOR THE
SEAGRAM SHARES AND THE POLYGRAM SHARES.
<TABLE>
<CAPTION>
SEAGRAM SHARES POLYGRAM SHARES
----------------- ----------------------------------
NYSE NYSE AEX
----------------- ----------------- --------------
US DOLLARS US DOLLARS NLG
PER SHARE PER SHARE PER SHARE
----------------- ----------------- --------------
HIGH LOW HIGH LOW HIGH LOW
---- --- ---- --- ---- ---
<S> <C> <C> <C> <C> <C> <C>
1996:
First Quarter.............................. 38.3750 32.1250 61.2500 53.0000 103.00 85.00
Second Quarter............................. 36.3750 31.7500 62.5000 56.0000 106.20 95.00
Third Quarter.............................. 38.3750 30.8750 60.3750 51.7500 101.00 86.00
Fourth Quarter............................. 41.8750 35.2500 56.0000 44.2500 96.20 75.50
1997:
First Quarter.............................. 42.7500 38.0000 51.1250 42.6250 98.80 78.60
Second Quarter............................. 41.8750 35.7500 56.7500 47.3750 111.00 88.50
Third Quarter.............................. 41.1250 33.9375 59.1875 48.6875 129.80 99.50
Fourth Quarter............................. 37.6250 30.2500 63.0625 47.3750 126.80 93.30
1998:
First Quarter.............................. 39.7500 31.4375 55.3750 42.9375 115.00 86.60
Second Quarter............................. 46.6875 36.8125 56.9375 40.9375 114.10 82.10
Third Quarter.............................. 42.0000 26.6875 58.1250 50.1250 111.50 99.00
Fourth Quarter (through October 30,
1998)................................... 33.3750 25.1250 60.5000 54.5000 113.00 97.50
</TABLE>
Set forth below are (i) the closing sale prices of Seagram Shares, as
reported on the NYSE Composite Transactions Tape, and PolyGram Shares, as
reported on the NYSE Composite Transactions Tape and published in the Official
Price List of the AEX, respectively, in each case on (a) May 5, 1998 (the last
full trading day prior to the public announcement that Philips was exploring
various strategic options for PolyGram), (b) May 13, 1998 (the last full trading
day prior to the public announcement that Seagram and Philips were discussing a
transaction involving the acquisition of Philips' interest in PolyGram), (c) May
20, 1998 (the last full trading day prior to the public announcement of the
execution of the Letter of Intent), (d) June 19, 1998 (the last full trading day
prior to the public announcement of the execution of the Offer Agreement) and
(e) October 30, 1998 (the most recent practicable date prior to the date of this
Offering Circular/Prospectus), and (ii) the equivalent pro forma sale prices of
PolyGram Shares on each of the dates referred to in (i) above, as determined by
multiplying the sale price of Seagram Shares by the Share Consideration exchange
ratio of 1.3772 Seagram Shares per PolyGram Share.
<TABLE>
<CAPTION>
SEAGRAM SHARES POLYGRAM SHARES POLYGRAM SHARES POLYGRAM SHARES
NYSE NYSE AEX EQUIVALENT
US DOLLARS US DOLLARS NLG US DOLLARS
PER SHARE PER SHARE PER SHARE PER SHARE
-------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
May 5, 1998......................... $42.3125 $43.8125 NLG 87.20 $58.2728
May 13, 1998........................ $43.0625 $53.0000 NLG 105.70 $59.3057
May 20, 1998........................ $41.0000 $55.1250 NLG 109.40 $56.4652
June 19, 1998....................... $41.6250 $53.2500 NLG 108.00 $57.3260
October 30, 1998.................... $32.8750 $58.8750 NLG 110.10 $45.2755
</TABLE>
15
<PAGE> 23
Since the fourth quarter of 1996, Seagram has paid a quarterly dividend of
$0.165 per Seagram Share. During the first three quarters of 1996, the dividend
equalled $0.15 per Seagram Share. The payment of future dividends on the Seagram
Shares will be a business decision to be made by Seagram's Board of Directors
from time to time based upon the results of operations and financial condition
of Seagram and such other factors as Seagram's Board of Directors considers
relevant.
PolyGram paid an annual dividend of NLG 0.95 per PolyGram Share in 1996 in
respect of 1995, an annual dividend of NLG 0.95 in 1997 in respect of 1996 and
an annual dividend of NLG 1.00 in 1998 in respect of 1997. In July 1998,
PolyGram paid a dividend of NLG 0.50 per PolyGram Share in respect of the first
six months of 1998. Under the terms of the Offer Agreement, PolyGram has agreed
not to declare or pay any dividends on or make other distributions in respect of
any of its capital stock, except for (i) such dividend of NLG 0.50 per PolyGram
Share and (ii) an extraordinary dividend (such as a Post-Closing Dividend) in
connection with the Reorganization following consummation of the Offer.
16
<PAGE> 24
COMPARISON OF CERTAIN PER SHARE DATA
The following table sets forth (i) historical book value, cash dividends
and income from continuing operations per share for Seagram, (ii) historical
book value, cash dividends and income from continuing operations per share for
PolyGram, (iii) unaudited pro forma consolidated book value, cash dividends and
income from continuing operations per share for Seagram and (iv) unaudited pro
forma equivalent consolidated book value, cash dividends and income from
continuing operations per share for PolyGram. The unaudited pro forma
consolidated per share data give effect to the consummation of (i) Universal's
acquisition, on October 21, 1997, of an incremental 50% interest in the USA
Networks partnership, including the Sci-Fi Channel, for $1.7 billion in cash
(the "USA Networks Transaction"), (ii) Universal's transfer to USA Networks,
Inc. ("USAi," formerly known as HSN, Inc.) and its affiliates of all of the
domestic operations and 50% of the international operations of the USA Networks
partnership, as well as all of Universal's domestic television production and
distribution operations, in exchange for cash and a substantial direct and
indirect interest in USAi (as described more fully under "The Seagram Company
Ltd. Unaudited Pro Forma Financial Information," the "USAi Transaction"), on
February 12, 1998, (iii) the sale of Tropicana and (iv) the Offer (assuming that
all issued PolyGram Shares are acquired in the Offer). The data set forth below
should be read in conjunction with (i) the unaudited pro forma consolidated
financial statements, including the notes thereto, set forth under "The Seagram
Company Ltd. Unaudited Pro Forma Financial Information;" (ii) PolyGram's
selected historical consolidated financial data, set forth under "-- PolyGram
Selected Historical Consolidated Financial Data;" (iii) the historical financial
statements of PolyGram (including the notes thereto) contained in PolyGram's
Annual Report on Form 20-F for the year ended December 31, 1997, which is
incorporated by reference herein; (iv) the PolyGram unaudited consolidated
interim financial data contained in PolyGram's Report on Form 6-K dated July 22,
1998, which is incorporated by reference herein; and (v) the historical
financial statements of Seagram (including the notes thereto) contained in
Seagram's Annual Report on Form 10-K for the fiscal year ended June 30, 1998, as
amended, which is incorporated by reference herein. The unaudited pro forma
consolidated per share data are presented for comparative purposes only and are
not intended to be indicative of the actual consolidated results of operations
or consolidated financial position that would have been achieved had the USA
Networks Transaction, the USAi Transaction, the sale of Tropicana and the Offer
been consummated as of the beginning of the periods presented, nor do they
purport to indicate results which may be attained in the future. No adjustment
has been included in the pro forma data for any anticipated cost savings or
other synergies. See "Incorporation of Certain Documents by Reference,"
"-- Seagram Selected Historical Consolidated Financial Data," "-- PolyGram
Selected Historical Consolidated Financial Data" and "The Seagram Company Ltd.
Unaudited Pro Forma Financial Information."
The historical per share data presented below have been prepared in
accordance with U.S. generally accepted accounting principles ("U.S. GAAP").
<TABLE>
<CAPTION>
POLYGRAM
SEAGRAM PRO FORMA
POLYGRAM PRO FORMA EQUIVALENT
SEAGRAM HISTORICAL CONSOLIDATED CONSOLIDATED
HISTORICAL(1) (UNAUDITED) (UNAUDITED)(4) (UNAUDITED)(5)
------------- ----------- -------------- --------------
<S> <C> <C> <C> <C>
BOOK VALUE PER SHARE:
June 30, 1998............................. $26.84 $12.35(2) $31.36 $43.19
CASH DIVIDENDS PER SHARE:
Twelve months ended June 30, 1998......... .66 .48(3) .66 .91
INCOME PER SHARE FROM CONTINUING OPERATIONS:
BASIC:
Twelve months ended June 30, 1998...... 2.51 1.23(4) 1.32 1.82
DILUTED:
Twelve months ended June 30, 1998...... 2.49 1.23(4) 1.31 1.80
</TABLE>
- ------------
(1) As a result of Seagram's sale of Tropicana, the Seagram Consolidated
Financial Statements report the results of Tropicana as discontinued
operations. See "-- Seagram Selected Historical Consolidated Financial
Data."
(2) PolyGram historical book value per share has been converted to U.S. GAAP and
has been converted to US Dollars at a rate of 2.0341 Dutch Guilders to 1.0
US Dollar.
(3) PolyGram cash dividend paid in US Dollars to U.S. shareholders.
(4) PolyGram historical income per share from continuing operations have been
converted to U.S. GAAP and have been converted to US Dollars at an average
rate of 2.01812 Dutch Guilders to 1.0 US Dollar.
(5) See "The Seagram Company Ltd. Unaudited Pro Forma Financial Information."
(6) The PolyGram pro forma equivalent consolidated data represents the Seagram
pro forma consolidated book value, cash dividends and income from continuing
operations per share multiplied by the Share Consideration exchange ratio of
1.3772 Seagram Shares per PolyGram Share.
17
<PAGE> 25
SEAGRAM SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected historical consolidated financial data presented below as of
June 30, 1998, 1997 and 1996 and January 31, 1996, 1995 and 1994 and for the
fiscal years ended June 30, 1998 and 1997, the five-month transition period
ended June 30, 1996, and the fiscal years ended January 31, 1996, 1995 and 1994
were derived from the historical consolidated financial statements of Seagram
and the notes thereto (the "Seagram Consolidated Financial Statements")
contained in Seagram's Annual Report on Form 10-K for the year ended June 30,
1998, as amended, which is incorporated herein by reference, and have been
audited by PricewaterhouseCoopers LLP, independent accountants. As a result of
Seagram's sale of Tropicana, the Seagram Consolidated Financial Statements
report the results of Tropicana as discontinued operations. See "The Seagram
Company Ltd. -- Recent Developments." The data presented below should be read in
conjunction with the Seagram Consolidated Financial Statements.
The Seagram Consolidated Financial Statements have been prepared in
accordance with U.S. GAAP which, in their application to Seagram, conform in all
material respects to Canadian generally accepted accounting principles. Except
as otherwise noted, figures are in millions of US Dollars.
<TABLE>
<CAPTION>
FIVE-MONTH
TRANSITION
FISCAL YEARS PERIOD
ENDED JUNE 30, ENDED FISCAL YEARS ENDED JANUARY 31,
---------------------- JUNE 30, ------------------------------
US DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS 1998 1997 1996 1996 1995 1994
- ------------------------------------------------ ------------ ------- ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Revenues.......................................... $ 9,474 $10,354 $ 4,112 $ 7,787 $ 4,994 $ 4,724
Operating income.................................. 553 719 93 435 614 622
Interest, net and other........................... 228 147 99 195 317 275
Gain on sale of Time Warner shares................ 926 154 -- -- -- --
Gain on USAi transaction.......................... 360 -- -- -- -- --
Equity (losses) earnings from unconsolidated
companies....................................... (45) 62 35 47 14 18
Income from continuing operations before the
cumulative effect of accounting change.......... 880 445 67 144 170 249
Income from discontinued Tropicana operations,
after tax....................................... 66 57 18 30 24 34
Discontinued DuPont activities, after tax......... -- -- -- 3,232 617 96
------- ------- ------- ------- ------- -------
Income before cumulative effect of accounting
change.......................................... 946 502 85 3,406 811 379
Cumulative effect of accounting change, after
tax............................................. -- -- -- -- (75) --
------- ------- ------- ------- ------- -------
Net income (loss)................................. $ 946 $ 502 $ 85 $ 3,406 $ 736 $ 379
======= ======= ======= ======= ======= =======
PER SHARE DATA
EARNINGS PER SHARE-BASIC
Income from continuing operations before
cumulative effect of accounting change.......... $ 2.51 $ 1.20 $ .18 $ .38 $ .46 $ .67
Discontinued Tropicana operations, after tax...... .19 .16 .05 .08 .06 .09
Discontinued DuPont activities, after tax......... -- -- -- 8.67 1.66 .26
------- ------- ------- ------- ------- -------
Income before cumulative effect of accounting
change.......................................... 2.70 1.36 .23 9.13 2.18 1.02
Cumulative effect of accounting change, after
tax............................................. -- -- -- -- (.20) --
------- ------- ------- ------- ------- -------
Net income (loss)................................. $ 2.70 $ 1.36 $ .23 $ 9.13 $ 1.98 $ 1.02
======= ======= ======= ======= ======= =======
EARNINGS PER SHARE -- DILUTED
Income from continuing operations before
cumulative effect of accounting change.......... $ 2.49 $ 1.20 $ .18 $ .38 $ .46 $ .66
Discontinued Tropicana operations, after tax...... 0.19 .15 .05 .08 .06 .09
Discontinued DuPont activities, after tax......... -- -- -- 8.54 1.64 .25
------- ------- ------- ------- ------- -------
Income before cumulative effect of accounting
change.......................................... 2.68 1.35 .23 9.00 2.16 1.00
Cumulative effect of accounting change, after
tax............................................. -- -- -- -- (.20) --
------- ------- ------- ------- ------- -------
Net income (loss)................................. $ 2.68 $ 1.35 $ .23 $ 9.00 $ 1.96 $ 1.00
======= ======= ======= ======= ======= =======
</TABLE>
18
<PAGE> 26
<TABLE>
<CAPTION>
FIVE-MONTH
TRANSITION
FISCAL YEARS PERIOD
ENDED JUNE 30, ENDED FISCAL YEARS ENDED JANUARY 31,
---------------------- JUNE 30, ------------------------------
US DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS 1998 1997 1996 1996 1995 1994
- ------------------------------------------------ ------------ ------- ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
FINANCIAL POSITION DATA
(AT END OF PERIOD)
Current assets.................................... $ 6,971 $ 6,131 $ 6,307 $ 6,194 $ 3,938 $ 3,532
Common stock of DuPont............................ 1,228 1,034 651 631 3,670 3,154
Common stock of Time Warner....................... -- 1,291 2,228 2,356 2,043 1,769
Other noncurrent assets........................... 12,246 10,257 10,328 10,230 1,773 1,754
Net assets of discontinued Tropicana operations... 1,734 1,734 1,693 1,549 1,270 1,220
------- ------- ------- ------- ------- -------
Total assets.................................... $22,179 $20,447 $21,207 $20,960 $12,694 $11,429
======= ======= ======= ======= ======= =======
Current liabilities............................... $ 4,709 $ 3,087 $ 4,383 $ 3,557 $ 3,865 $ 2,776
Long term indebtedness............................ 2,225 2,478 2,562 2,889 2,838 3,051
Total liabilities................................. 10,948 9,174 10,163 9,788 7,174 6,428
Minority interest................................. 1,915 1,851 1,839 1,844 11 --
Shareholders' equity.............................. 9,316 9,422 9,205 9,328 5,509 5,001
------- ------- ------- ------- ------- -------
Total liabilities and shareholders' equity...... $22,179 $20,447 $21,207 $20,960 $12,694 $11,429
======= ======= ======= ======= ======= =======
CASH FLOW DATA
Cash flow from operating activities............... (241) 664 315 222 370 370
Capital expenditures.............................. (410) (393) (245) (349) (124) (118)
Other investing activities, net................... 1,109 2,101 (346) 2,260 (341) (1,556)
Dividends paid.................................... (231) (239) (112) (224) (216) (209)
OTHER DATA
Dividends paid per share.......................... $ .66 $ .645 $ .30 $ .60 $ .58 $ .56
Shareholders' equity per share.................... 26.84 25.79 24.67 24.91 14.79 13.43
End-of-period share price New York Stock
Exchange (US $)................................. $ 40.94 $ 40.25 $ 33.63 $ 36.38 $ 28.75 $ 30.75
Canadian Stock Exchanges (Cdn. $)............... $ 59.95 $ 55.50 $ 45.75 $ 49.75 $ 40.50 $ 40.63
Average shares outstanding (thousands)............ 349,874 369,682 373,858 373,117 372,499 373,051
Shares outstanding at end of period (thousands)... 347,132 365,281 373,059 374,462 372,537 372,489
</TABLE>
19
<PAGE> 27
POLYGRAM SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected historical consolidated financial data presented below as of
December 31, 1997 and 1996 and for the fiscal years ended December 31, 1997,
1996 and 1995 were derived from the historical consolidated financial statements
of PolyGram and the notes thereto contained in PolyGram's Annual Report on Form
20-F for the fiscal year ended December 31, 1997, which is incorporated herein
by reference, and have been audited by KPMG Accountants N.V. In addition, the
selected historical consolidated financial data presented below as of December
31, 1995, 1994 and 1993 and for the years ended December 31, 1994 and 1993 were
derived from the historical consolidated financial statements of PolyGram for
the years ended December 31, 1995, 1994 and 1993, respectively, which have been
audited by KPMG Accountants N.V. (the historical consolidated financial
statements referred to in this sentence and the preceding sentence, together
with the notes thereto, the "PolyGram Consolidated Financial Statements"). The
selected historical consolidated financial data as of and for the nine months
ended September 30, 1998 and 1997 were derived from the unaudited historical
consolidated interim financial reports of PolyGram, which according to PolyGram
have been prepared on substantially the same basis as the PolyGram Consolidated
Financial Statements, reflecting all adjustments necessary, which consist only
of normal recurring adjustments, for a fair presentation of such data. Data as
of and for the nine months ended September 30, 1998 do not purport to be
indicative of results to be expected for the full year. The data presented below
should be read in conjunction with the PolyGram Consolidated Financial
Statements and the PolyGram unaudited historical consolidated interim financial
data contained in PolyGram's Report on Form 6-K dated October 21, 1998,
incorporated herein by reference.
PolyGram's Consolidated Financial Statements and PolyGram's unaudited
historical consolidated interim financial reports have been prepared in
accordance with Netherlands GAAP, which differs in certain significant respects
from U.S. GAAP. Except as otherwise noted, figures are in millions of Dutch
Guilders. See "Exchange Rates."
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30, FISCAL YEARS ENDED DECEMBER 31,
NLG IN MILLIONS, --------------------- ----------------------------------------------------------
EXCEPT PER SHARE AMOUNTS 1998 1997 1997 1996 1995 1994 1993
------------------------ --------- --------- ---------- --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
(NETHERLANDS GAAP):
Net sales.................................. NLG 7,318 NLG 7,201 NLG 11,095 NLG 9,488 NLG 8,798 NLG 8,600 NLG 7,416
Operating income........................... 280 560 1,198 1,078 1,084 1,069 932
Financial income and expenses, net......... (36) (7) (18) (8) (2) 8 (5)
Income taxes............................... (18) (160) (355) (310) (303) (302) (264)
--------- --------- ---------- --------- --------- --------- ---------
Income after taxes......................... 226 393 825 760 779 775 663
Income before extraordinary items.......... 204 355 787 722 741 738 614
Extraordinary items........................ -- -- -- (114) -- -- --
--------- --------- ---------- --------- --------- --------- ---------
Net income................................. NLG 204 NLG 355 NLG 787 NLG 608 NLG 741 NLG 738 NLG 614
========= ========= ========== ========= ========= ========= =========
PER SHARE DATA
Income before extraordinary items.......... NLG 1.14 NLG 1.97 NLG 4.37 NLG 4.01 NLG 4.12 NLG 4.10 NLG 3.56
--------- --------- ---------- --------- --------- --------- ---------
Net income................................. NLG 1.14 NLG 1.97 NLG 4.37 NLG 3.38 NLG 4.12 NLG 4.10 NLG 3.56
========= ========= ========== ========= ========= ========= =========
APPROXIMATE AMOUNTS ON THE BASIS OF U.S.
GAAP:
Net income (loss).......................... NLG 125 NLG 267 NLG 677 NLG 507 NLG 649 NLG 646 NLG 534
Net income (loss) per share -- Basic....... NLG .70 NLG 1.49 NLG 3.79 NLG 2.82 NLG 3.61 NLG 3.59 NLG 3.10
Net income (loss) per share -- Diluted..... NLG .70 NLG 1.48 NLG 3.77 NLG 2.82 NLG 3.59 NLG 3.58 NLG 3.08
</TABLE>
20
<PAGE> 28
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30, FISCAL YEARS ENDED DECEMBER 31,
NLG IN MILLIONS, --------------------- ----------------------------------------------------------
EXCEPT PER SHARE AMOUNTS 1998 1997 1997 1996 1995 1994 1993
------------------------ --------- --------- ---------- --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
FINANCIAL POSITION DATA
(AT END OF PERIOD)
(NETHERLANDS GAAP):
Current assets............................. NLG 5,283 NLG 6,335 NLG 5,150 NLG 4,630 NLG 4,782 NLG 3,653
Noncurrent assets.......................... 5,311 4,977 4,259 3,571 3,186 3,197
--------- ---------- --------- --------- --------- ---------
Total assets............................. 10,594 11,312 9,409 8,201 7,968 6,850
========= ========== ========= ========= ========= =========
Current liabilities........................ 5,317 5,713 4,702 4,108 4,181 3,362
Long-term indebtedness..................... 227 260 285 319 337 415
Other noncurrent liabilities............... 1,001 1,117 904 753 692 644
Minority interests......................... 67 79 216 286 350 406
Shareholders' equity....................... 3,982 4,143 3,302 2,735 2,408 2,023
--------- ---------- --------- --------- --------- ---------
Total liabilities and shareholders'
equity................................. 10,594 11,312 9,409 8,201 7,968 6,850
========= ========== ========= ========= ========= =========
OTHER DATA
Dividend paid per share.................... 1.50 .95 .95 .95 .85 .75 .65
Shareholders' equity per share............. 22.12 23.02 18.34 15.19 13.38 11.24
End of period share price:
AEX Stock Exchange (NLG)................. 107.20 115.30 97.00 88.00 85.20 80.70 77.00
New York Stock Exchange (US $)........... 56.7500 57.4375 47.6875 49.7500 52.5000 46.1250 39.3750
Average shares issued (thousands).......... 180,000 180,000 180,000 180,000 180,000 180,000 172,500
Shares issued at end of period
(thousands).............................. 180,000 180,000 180,000 180,000 180,000 180,000 180,000
APPROXIMATE AMOUNTS ON THE BASIS OF U.S.
GAAP:
Shareholders' equity....................... 4,423 4,683 3,876 3,359 3,183 2,929
Shareholders' equity per share............. 24.80 26.22 21.68 18.69 17.71 16.29
</TABLE>
21
<PAGE> 29
SEAGRAM SELECTED UNAUDITED PRO FORMA FINANCIAL INFORMATION
The following selected unaudited pro forma financial information presents
the pro forma consolidated financial position and the pro forma consolidated
income statement of Seagram and PolyGram (i) as if the sale of Tropicana and the
Offer each had been consummated on June 30, 1998 for the pro forma consolidated
financial position data and (ii) as if the USA Networks Transaction, the USAi
Transaction, the sale of Tropicana and the Offer each had been consummated on
July 1, 1997 for the pro forma consolidated income statement data (in each case,
assuming that all PolyGram Shares are acquired in the Offer). The Offer will be
treated as a purchase for financial accounting purposes. No adjustment has been
included in the pro forma amounts for any anticipated cost savings or other
synergies. The selected unaudited pro forma financial information set forth
below is qualified in its entirety by, and should be read in conjunction with,
(i) the unaudited pro forma consolidated financial statements, including the
notes thereto, set forth under "The Seagram Company Ltd. Unaudited Pro Forma
Financial Information;" (ii) PolyGram's selected historical consolidated
financial data, set forth under "-- PolyGram Selected Historical Consolidated
Financial Data;" (iii) the historical financial statements of PolyGram
(including the notes thereto) contained in PolyGram's Annual Report on Form 20-F
for the year ended December 31, 1997, which is incorporated by reference herein;
(iv) the PolyGram unaudited consolidated interim financial data contained in
PolyGram's Report on Form 6-K dated July 22, 1998, which is incorporated by
reference herein; and (v) the historical financial statements of Seagram
(including the notes thereto) contained in Seagram's Annual Report on Form 10-K
for the fiscal year ended June 30, 1998, as amended, which is incorporated by
reference herein.
The pro forma financial information below is presented for comparative
purposes only and is not intended to be indicative of the actual consolidated
results of operations or consolidated financial position that would have been
achieved had the USA Networks Transaction, the USAi Transaction, the sale of
Tropicana and the Offer been consummated as of the dates indicated above nor
does it purport to indicate results which may be attained in the future. See
"The Seagram Company Ltd. Unaudited Pro Forma Financial Information."
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
US DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS JUNE 30, 1998
------------------------------------------------ -----------------
<S> <C>
PRO FORMA INCOME STATEMENT DATA
Revenues.................................................. $14,668
Operating income.......................................... 322
Interest, net and other................................... 577
Gain on sale of Time Warner shares........................ 926
Gain on sale of USAi shares............................... 360
Equity losses from unconsolidated companies............... (6)
Net income................................................ 526
PRO FORMA PER SHARE DATA
Earnings per share -- Basic............................... $ 1.32
Earnings per share -- Diluted............................. 1.31
PRO FORMA FINANCIAL POSITION DATA (AT END OF PERIOD)
Current assets............................................ $ 9,149
Common stock of DuPont.................................... 1,228
Other noncurrent assets................................... 24,803
Total assets.............................................. 35,180
Current liabilities....................................... 9,321
Long-term indebtedness.................................... 5,798
Total liabilities......................................... 20,840
Minority interest......................................... 1,951
Total shareholders' equity................................ 12,389
Total liabilities and shareholders' equity................ 35,180
</TABLE>
22
<PAGE> 30
THE OFFER
BACKGROUND OF THE OFFER
Following its acquisition of Universal in June 1995, Seagram has evaluated
strategic opportunities in the entertainment industry with a view towards
becoming a global entertainment leader. Since the time of the Universal
acquisition, Seagram has believed that the music industry represented a
potential expansion opportunity. Beginning in the fall of 1996, senior
management of Seagram and its financial advisors began to review the global
music industry generally and potential strategic acquisitions in the industry.
As a result of this review, senior management of Seagram concluded that the
music business was highly attractive, because of, among other things, its growth
prospects and cash flow generation.
In early May 1998, following conversations between Edgar Bronfman, Jr.,
President and Chief Executive Officer of Seagram, and Cornelis Boonstra,
Chairman of the Board Management and Chief Executive Officer of Philips, and
their respective financial advisors, Messrs. Bronfman and Boonstra agreed that
their respective companies should explore seriously the terms of a possible
transaction pursuant to which Seagram would acquire PolyGram. In that
connection, on May 7, 1998, senior officers of Seagram and Philips, along with
their respective financial and legal advisors, met to discuss Seagram's possible
acquisition of PolyGram. Seagram also began a due diligence review of PolyGram,
and Philips began a due diligence review of Seagram. On May 5, 1998, Seagram and
Philips executed a confidentiality agreement. Seagram, Philips and PolyGram
subsequently entered into a supplement to the confidentiality agreement dated
May 8, 1998 which made PolyGram a party to the original agreement and which
contained, among other things, provisions restricting the solicitation of
artists and employees.
On May 6, 1998, Philips announced that it was exploring various strategic
options for PolyGram. Philips indicated that its statement was issued as a
general reaction to the many reports concerning possible transactions in the
entertainment industry.
On May 14, 1998, in response to market rumors regarding a possible
transaction, Seagram and Philips issued a press release confirming that they
were discussing a transaction involving the acquisition of Philips' PolyGram
Shares, including an offer to the other PolyGram shareholders. The release noted
that discussions were continuing and that the parties were inviting PolyGram to
participate in the discussions.
Negotiations regarding the terms of the acquisition transaction were
conducted in a series of meetings in New York City and telephone conversations
among senior officers of Seagram, Philips and, as described below, PolyGram and
their respective financial and legal advisors, from May 7, 1998 until the letter
of intent described below was signed on May 21, 1998 (the "Letter of Intent").
The discussions initially focused on the structure of the transaction, including
the value and form of consideration to be paid by Seagram. Neither PolyGram nor
its financial and legal advisors participated in negotiations with Seagram and
Philips regarding the price of the acquisition or the structural issues relating
to the acquisition described in the next paragraph, but PolyGram did participate
in other aspects of the negotiations.
During this period, various structural issues were addressed by Seagram and
Philips and their respective financial and legal advisors, including the extent
to which the acquisition, if structured as a tender offer, would be subject to a
minimum condition, the sequence of the transactions pursuant to which Seagram
would acquire PolyGram Shares from Philips and the other PolyGram shareholders
and the circumstances, if any, under which Philips would indemnify Seagram. In
evaluating possible structures, Seagram and Philips also focused on the extent
to which Seagram Shares would be offered to all PolyGram shareholders and
whether Philips would commit to receive all of such Seagram Shares to the extent
other PolyGram shareholders desired to receive only cash for their shares.
Seagram and Philips agreed that any transaction would be on terms that would
provide the PolyGram shareholders with the opportunity to receive the same
consideration as that received by Philips.
Negotiations also addressed, among other things, whether PolyGram's film
division would be included in the transaction, the scope of the covenants
limiting the operations of PolyGram between the date of the Offer Agreement and
the Closing Date, the conditions to the Offer and each party's right to
terminate the Offer. In addition, representatives of Seagram and Philips
negotiated the terms of certain arrangements relating to
23
<PAGE> 31
Philips' ownership of Seagram Shares following the consummation of the
transaction. See "Description of Transaction Agreements -- Stockholders
Agreement."
Following published rumors regarding a possible transaction involving
Seagram and PolyGram, and during the May negotiations, PolyGram was contacted by
third parties regarding possible alternative transactions relating to PolyGram.
Philips and PolyGram agreed that such parties could be provided with
confidential information relating to PolyGram in connection with their
consideration of a possible alternative transaction. Although PolyGram engaged
in preliminary discussions with a few such parties, which were also permitted to
conduct a limited due diligence review of PolyGram, these discussions did not
result in any extended negotiations or specific proposals relating to an
acquisition of PolyGram or any other alternative transaction.
At meetings held on May 6, May 18 and May 21, 1998, senior management of
Seagram and Universal provided the members of Seagram's Board of Directors with
information regarding the status of the discussions with PolyGram and due
diligence on PolyGram. At such meetings, Seagram and Universal senior management
apprised the Seagram Board of the status of the negotiations, the terms and
conditions of the proposed transaction, the strategic and financial benefits and
risks of the transaction, including those relating to potential cost savings,
and the results of the due diligence that had been conducted on PolyGram.
Presentations were also made by Seagram's financial and legal advisors.
On May 21, 1998, the PolyGram Board of Management and the PolyGram
Supervisory Board each met to consider the proposed terms of the Letter of
Intent, including the financial terms of Seagram's proposed offer (described
below). Together with their financial and legal advisors, the PolyGram Boards
reviewed the terms of the proposed Letter of Intent. At these meetings, Lazard
Freres delivered its opinion to the PolyGram Board of Management and the
PolyGram Supervisory Board to the effect that, as of the date of such meeting,
the proposed offer consideration, as reflected in the Letter of Intent, was fair
to PolyGram shareholders from a financial point of view. The Board of Management
authorized PolyGram senior management to continue to negotiate the terms of a
definitive offer agreement consistent with the Letter of Intent, and authorized
senior management to take such further actions as were consistent with the terms
of the Letter of Intent, including execution of a definitive offer agreement.
The PolyGram Supervisory Board, with two Philips designees abstaining, also
voted to approve these actions.
Following approval of Seagram's Board of Directors and the Board of
Management and Supervisory Board of each of PolyGram and Philips, the parties
executed the Letter of Intent on May 21, 1998 reflecting their agreement in
principle regarding the terms of a transaction and their expectation that a
final agreement could be reached. The parties announced their agreement in
principle on that day. The acquisition would be structured as an offer by
Seagram for all the PolyGram Shares, conditioned, on, among other things, at
least 95% of PolyGram's issued share capital being tendered. Approximately 80%
of the aggregate offer consideration would be paid in cash and approximately 20%
would be paid in the form of Seagram Shares. PolyGram shareholders could elect
to receive either NLG 117 or 1.4012 Seagram Shares for each PolyGram Share,
provided, that Seagram Shares would be paid in respect of approximately 34.2
million PolyGram Shares and cash would be paid in respect of all other tendered
shares. Philips would tender all of its PolyGram Shares into the offer and would
elect to receive Seagram Shares for all of its PolyGram Shares.
Following the signing of the Letter of Intent, representatives of Seagram,
Philips and PolyGram continued to negotiate the terms of the Offer Agreement and
the related agreements. In addition, representatives of Seagram continued their
due diligence investigation of PolyGram, and representatives of Philips
continued their due diligence investigation of Seagram. During these
negotiations, representatives of Seagram expressed their concern regarding the
lower than expected financial results of PolyGram during the second quarter of
1998. Following additional due diligence meetings among representatives of
Seagram, PolyGram and Philips, Seagram and Philips negotiated to reduce the
consideration offered for each PolyGram Share to NLG 115 or 1.3772 Seagram
Shares and for Philips, immediately prior to the Closing, to contribute
$90 million in cash to PolyGram (after giving effect to any applicable taxes
payable by PolyGram arising out of such contribution), unless Seagram, Philips
and PolyGram mutually agree to an alternative arrangement, without being
entitled to any consideration from PolyGram in exchange therefor.
At telephonic meetings held on June 21, 1998, PolyGram management discussed
with the PolyGram Board of Management and the PolyGram Supervisory Board the
course of negotiations with Seagram since
24
<PAGE> 32
the execution of the Letter of Intent and the revised terms of the offer
(including the revised offer consideration and Philips' agreement to contribute
an additional $90 million to PolyGram prior to the Closing). Lazard Freres
reviewed with the PolyGram Board of Management and the PolyGram Supervisory
Board its financial analysis of the offer consideration, as revised, and
delivered its opinion to the effect that the offer consideration, as revised,
was fair to PolyGram shareholders from a financial point of view. PolyGram's
legal advisors reviewed with the PolyGram Board of Management and the PolyGram
Supervisory Board the terms of the proposed definitive offer agreement. The
PolyGram Board of Management unanimously concluded that the Offer Agreement was
in the best interests of PolyGram and was fair to its shareholders, approved the
Offer Agreement and recommended that PolyGram shareholders tender their PolyGram
shares in the Offer. The Board of Management also recommended that the
Supervisory Board approve and affirm these actions, which the Supervisory Board
did, by the affirmative vote of all directors (other than two designees of
Philips, who abstained).
On June 21, 1998, following approval of Seagram's Board of Directors and
the Board of Management and Supervisory Board of each of PolyGram and Philips,
the parties executed the Offer Agreement and related agreements. On June 22,
1998, the parties issued a press release announcing the execution of these
agreements.
CERTAIN PROJECTED FINANCIAL INFORMATION
In the course of the discussions described in this "-- Background of the
Offer" section, PolyGram and Philips provided Seagram, and Seagram provided
Philips and PolyGram, with certain business and financial information which the
parties believe was not and is not publicly available. Such information
included, among other things, certain financial projections prepared by
management of PolyGram and Seagram, respectively (the "PolyGram Projections" and
the "Seagram Projections," respectively). Neither PolyGram nor Seagram publicly
discloses as a matter of course internal projections as to future revenues,
earnings or financial condition. Seagram does not believe that the PolyGram
Projections are material. In negotiating the terms of the Offer Consideration,
Seagram relied on its own, independently developed projections for PolyGram and
did not rely in any material respects on the PolyGram-prepared projections,
which were materially different from the Seagram-prepared projections.
The Seagram stand-alone forecasts for the fiscal year ended June 30, 1998
set forth below do not take into account any of the transactions contemplated by
the Offer or the sale of Tropicana. Seagram also provided the pro forma
projections set forth below, which give effect to the acquisition of PolyGram
contemplated by the Offer (excluding PolyGram's film business) and the
disposition of Tropicana, and, in the case of fiscal year 2000, estimated cost
savings. These pro forma projections were prepared based on Seagram's
stand-alone projections for the fiscal year ended June 30, 1998 set forth below
and projections for PolyGram's music business for calendar year 1998 which were
prepared by PolyGram management. The pro forma projections included the
assumptions that revenues, EBITDA and operating income for the combined Seagram-
PolyGram business would grow at compounded annual growth rates of 5%, 15% and
18%, respectively, from fiscal 1998 to fiscal 2000. These growth rates do not
reflect the substantially changed general economic conditions (including
developments in the global economy and world markets) since May, 1998 and the
resulting increased likelihood of lower growth for the combined Seagram-PolyGram
business both in the United States and abroad. Based upon current conditions,
Seagram no longer believes that these growth rates will be achieved and,
accordingly, does not believe the pro forma projections will be realized.
Readers should note that Seagram's pro forma projections were not prepared with
the approval of the Seagram Board of Directors or in consultation with Universal
operating management or PolyGram management and do not reflect any purchase
price accounting adjustments.
25
<PAGE> 33
<TABLE>
<CAPTION>
PRO FORMA
SEAGRAM AND POLYGRAM
SEAGRAM YEARS ENDED JUNE 30,
YEAR ENDED --------------------
JUNE 30, 1998 1998 2000
------------- ------- -----
(AMOUNTS IN BILLIONS)
<S> <C> <C> <C>
Revenues........................................... $11.707 $14.321 $15.7
EBITDA............................................. 1.627 2.104 2.8
Operating income................................... .746 1.035 1.4
Interest expense, net.............................. .273 .592 --
Taxes.............................................. .277 .337 --
Net income......................................... .196 .106 --
</TABLE>
THE SEAGRAM PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE
OR COMPLIANCE WITH PUBLISHED GUIDELINES OF THE SEC OR THE GUIDELINES ESTABLISHED
BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING
FORWARD-LOOKING INFORMATION OR GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND WERE
NOT EXAMINED, REVIEWED OR COMPILED BY INDEPENDENT PUBLIC ACCOUNTANTS AND,
ACCORDINGLY, THE INDEPENDENT PUBLIC ACCOUNTANTS DO NOT EXPRESS AN OPINION OR ANY
OTHER FORM OF ASSURANCE WITH RESPECT THERETO. THE SEAGRAM PROJECTIONS ARE
INCLUDED IN THIS OFFERING CIRCULAR/PROSPECTUS ONLY BECAUSE SUCH INFORMATION WAS
PROVIDED TO PHILIPS AND POLYGRAM. NONE OF PHILIPS, POLYGRAM OR ANY OTHER PARTY
TO WHOM THE PROJECTIONS WERE PROVIDED GIVES ANY ASSURANCES AS TO THE ACCURACY OF
SUCH INFORMATION. WHILE PRESENTED WITH NUMERICAL SPECIFICITY, THESE PROJECTIONS
ARE BASED UPON A VARIETY OF ASSUMPTIONS RELATING TO THE BUSINESSES OF SEAGRAM
AND POLYGRAM WHICH MAY NOT BE REALIZED BECAUSE OF, AMONG OTHER THINGS, CHANGES
OR DEVELOPMENTS IN THE MUSIC AND FILM INDUSTRY GENERALLY (INCLUDING CHANGING
AUDIENCE TASTES), CHANGES IN GENERAL ECONOMIC CONDITIONS (INCLUDING DEVELOPMENTS
IN THE GLOBAL ECONOMY AND WORLD MARKETS) AND THE UNPREDICTABLE NATURE OF THE
HIT-DRIVEN MUSIC AND FILM BUSINESSES. SUCH PROJECTIONS ARE SUBJECT TO
SIGNIFICANT UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE
CONTROL OF SEAGRAM, PARTICULARLY FOR THE FISCAL YEARS AFTER 1998. THERE CAN BE
NO ASSURANCE THAT THE SEAGRAM PROJECTIONS WILL BE REALIZED, AND ACTUAL RESULTS
MAY DIFFER MATERIALLY FROM THOSE SHOWN. MOREOVER, SUCH PROJECTIONS WERE NOT
PREPARED IN CONSULTATION WITH UNIVERSAL OPERATING MANAGEMENT OR POLYGRAM
MANAGEMENT. FOR THESE REASONS, AS WELL AS THE BASES ON WHICH SUCH PROJECTIONS
WERE COMPILED, THE INCLUSION OF SUCH PROJECTIONS HEREIN SHOULD NOT BE REGARDED
AS AN INDICATION THAT PHILIPS, POLYGRAM OR ANY OTHER PARTY WHO RECEIVED SUCH
INFORMATION CONSIDERS SUCH INFORMATION TO BE AN ACCURATE PREDICTION OF FUTURE
EVENTS AND NONE OF SUCH PERSONS ASSUMES ANY RESPONSIBILITY FOR THE ACCURACY OR
RELIABILITY OF SUCH INFORMATION. THE INFORMATION SET FORTH UNDER THIS
"-- CERTAIN PROJECTED FINANCIAL INFORMATION" SECTION CONTAINS "FORWARD-LOOKING
STATEMENTS." SEE "FORWARD-LOOKING STATEMENTS."
PURPOSE OF THE OFFER; PLANS FOR POLYGRAM
The purpose of the Offer is for Seagram to acquire control of, and the
entire equity interest in, PolyGram.
In the event that Seagram does not acquire the entire equity interest in
PolyGram upon consummation of the Offer, at such time as Seagram acquires at
least 95% of the issued PolyGram Shares, Seagram intends to pursue the
Compulsory Acquisition of any remaining minority PolyGram Shares pursuant to
Dutch Law, as described below under "-- Compulsory Acquisition."
26
<PAGE> 34
In addition to pursuing the Compulsory Acquisition, Seagram intends to take
certain actions to reorganize PolyGram following consummation of the Offer. See
"-- Post Closing Restructuring; Post-Closing Dividend."
Pursuant to the Offer Agreement, each of PolyGram and Philips has agreed,
subject to certain exceptions, to take actions, effective no earlier than the
consummation of the Offer, that are reasonably necessary or desirable to
accomplish the Compulsory Acquisition, the Reorganization and a Post-Closing
Dividend. See "Description of Transaction Agreements -- Offer
Agreement -- Post-Closing Restructuring."
Following the consummation of the Offer, Seagram may from time to time
purchase PolyGram Shares, subject to Dutch Law and other applicable law, in
regular stock exchange trading at market prices then prevailing. Such prices may
be higher or lower than the Offer Consideration. In addition, following the
consummation of the Offer, Seagram may from time to time purchase PolyGram
Shares other than in regular stock exchange trading, provided that, for three
years following the consummation of the Offer, any consideration paid therefor
shall not exceed the Offer Consideration.
There can be no assurance, however, that Seagram will undertake any of
these actions or that PolyGram shareholders who do not tender their PolyGram
Shares pursuant to the Offer will receive any consideration for their PolyGram
Shares from Seagram at any subsequent time.
COMPULSORY ACQUISITION
Section 2:92a of the DCC contains a procedure for the compulsory
acquisition of shares owned by minority shareholders of a "naamloze
vennootschap" or "N.V.", a limited liability company such as PolyGram. As soon
as Seagram and its affiliates, other than PolyGram, hold for their own account
at least 95% of the issued share capital of PolyGram, Seagram and such
affiliates intend to institute proceedings against the other shareholders (the
"minority shareholders") of PolyGram, in accordance with Section 2:92a of the
DCC, in order to force those minority shareholders to transfer their PolyGram
Shares to Seagram. The Compulsory Acquisition may be initiated at any time upon
fulfillment of the 95% ownership condition. The proceedings are instituted by
means of a writ of summons served upon each of the minority shareholders in
accordance with the provisions of the Dutch Code of Civil Procedure. The
proceedings are held before the Enterprise Division of the Court of Appeals in
Amsterdam, the Netherlands (the "Enterprise Division"). The Enterprise Division
may render the following judgments:
(i) deny the claim for compulsory acquisition in relation to all
minority shareholders if it is established that (a) one or more minority
shareholders will incur considerable financial loss by the forced transfer
of their PolyGram Shares that would not be compensated by the fixed price
for their PolyGram Shares, (b) one or more minority shareholders holds one
or more shares in which, according to PolyGram's articles of association
(the "PolyGram Articles"), a special control right regarding PolyGram is
vested, or (c) the plaintiffs have waived their rights to institute these
proceedings vis-a-vis one or more of the minority shareholders; and
(ii) if the claim is not denied, (a) appoint one or three auditors to
advise the Enterprise Division as to the price to be paid for the minority
shareholders' PolyGram Shares after which the Enterprise Division will fix
such prices or (b) fix the price to be paid for the PolyGram Shares of the
minority shareholders if the Enterprise Division does not deem it necessary
to appoint auditors (for instance, if the plaintiffs have already provided
the Enterprise Division with sufficient evidence that the price offered is
reasonable); and
(iii) if the claim is not denied, award the claim for compulsory
acquisition by way of an order to the minority shareholders to transfer
their shares, as well as an order to the plaintiffs to pay the minority
shareholders the price fixed (with interest) against transfer of their
unencumbered shares.
If the Enterprise Division fixes the price to be paid for the PolyGram
Shares of the minority shareholders, such price shall be increased by the
statutory interest rate applicable in the Netherlands (at present 6% per annum)
for the period from a date determined by the Enterprise Division to the date of
payment of the price. However, any dividends or other distributions (including a
Post-Closing Dividend) made by PolyGram to its shareholders during that period
will be deemed to be partial payments towards the price fixed.
27
<PAGE> 35
The minority shareholders will only be required to transfer their PolyGram
Shares, against payment of the price set by the Enterprise Division, once a
final, nonappealable judgment described in clause (iii) above has been obtained.
The plaintiffs will notify the minority shareholders of the date and place of
payment for the PolyGram Shares and the price to be paid for the PolyGram Shares
by notification sent directly to the minority shareholders whose addresses are
known and by means of an advertisement in a national daily newspaper in the
Netherlands. The plaintiffs may also pay the price for the minority
shareholders' PolyGram Shares, inclusive of interest accrued thereon, in escrow
to the State of the Netherlands. By this payment, the plaintiffs become the
holders of the PolyGram Shares by operation of law subject to the same notice
obligations. Any encumbrance on any PolyGram Shares for which payment in escrow
has been made will be released from such PolyGram Shares and will transfer to
the funds paid for such shares. At such time, the minority shareholders would
cease to have any rights in their PolyGram Shares, including with respect to
voting thereof. Their only right will be the right to receive payment therefor
upon proper transfer of their PolyGram Shares.
BECAUSE THE COMPULSORY ACQUISITION WOULD REQUIRE A COURT PROCEEDING AND
POSSIBLY EXPERT VALUATION, RECEIPT OF FUNDS COULD BE SUBSTANTIALLY DELAYED, AND
THE PRICE PAID IN THE COMPULSORY ACQUISITION MAY BE MORE OR LESS THAN THE OFFER
CONSIDERATION.
POST-CLOSING RESTRUCTURING; POST-CLOSING DIVIDEND
In addition to pursuing the Compulsory Acquisition, Seagram intends to take
certain actions to reorganize PolyGram following consummation of the Offer.
Seagram is considering a number of alternatives to facilitate this objective.
One alternative would be for PolyGram to transfer subsidiaries to affiliates of
Seagram for fair market value. PolyGram would then declare and pay a pro rata
dividend of substantially all the proceeds as a Post-Closing Dividend to its
shareholders, consisting of Seagram (or an affiliate) and the remaining PolyGram
shareholders. Receipt of a Post-Closing Dividend by non-tendering PolyGram
shareholders could have adverse tax consequences to such shareholders and reduce
the amount payable in the Compulsory Acquisition. See "The Offer -- Purpose of
the Offer; Plans for PolyGram -- Compulsory Acquisition" and "Certain Material
Tax Consequences -- Tax Consequences of a Post-Closing Dividend." Pursuant to
the Offer Agreement, each of PolyGram and Philips has agreed, subject to certain
exceptions, to take actions, effective no earlier than the consummation of the
Offer, that are reasonably necessary or desirable to accomplish the
Reorganization and a Post-Closing Dividend. See "Description of Transaction
Agreements -- Offer Agreement -- Post-Closing Restructuring."
DELISTING AND DEREGISTRATION OF POLYGRAM SHARES
Following the consummation of the Offer, Seagram intends to seek to cause
the delisting of the PolyGram Shares from the AEX and the NYSE and the
deregistration of the PolyGram Shares under the U.S. Exchange Act as soon as
possible after consummation of the Offer. See "The Offer -- Possible Effects of
the Offer on the Market for PolyGram Shares" for a description of the possible
effects of such delisting and deregistration on the liquidity and market value
of the remaining PolyGram Shares not tendered pursuant to the Offer.
ELIMINATION OF NEW YORK REGISTRY; ELIMINATION OF BEARER SHARES
Following the consummation of the Offer, Seagram intends to cause PolyGram
to eliminate the New York Registry, which has been established specifically to
facilitate public trading of PolyGram Shares on the NYSE, if and when the
PolyGram Shares are delisted from the NYSE (see "-- Delisting and Deregistration
of PolyGram Shares"). In addition, Seagram intends to cause PolyGram to amend
the PolyGram Articles to require that all PolyGram Shares be held in the form of
PolyGram Dutch Registered Shares if and when the PolyGram Shares are delisted
from the AEX, except that the PolyGram Articles would continue to permit
PolyGram U.S. Registered Shares until the New York Registry is eliminated, as
described above. Holders of PolyGram U.S. Registered Shares will have to submit
their share certificates to PolyGram for re-registration as PolyGram Dutch
Registered Shares. As a result of these actions, all PolyGram U.S. Registered
Shares, PolyGram K-Shares and PolyGram CF-Shares will be re-registered in the
Netherlands Registry as PolyGram Dutch Registered Shares. See "Description of
PolyGram Capital Stock" for a description of the forms in
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which PolyGram Shares currently are held. UNDER DUTCH LAW, IF POLYGRAM SHARES
ARE DELISTED FROM THE NYSE AND THE AEX, AND THE RE-REGISTRATION OF POLYGRAM U.S.
REGISTERED SHARES, POLYGRAM K-SHARES AND POLYGRAM CF-SHARES DESCRIBED ABOVE IS
EFFECTED, THEN SUCH SHARES CAN ONLY BE TRANSFERRED THROUGH A NOTARIAL DEED
EXECUTED IN THE NETHERLANDS BY A DUTCH CIVIL LAW NOTARY. THIS REQUIREMENT WOULD
HAVE AN ADVERSE EFFECT ON THE MARKET PRICE AND MARKETABILITY OF THE POLYGRAM
SHARES. See "The Offer -- Possible Effects of the Offer on the Market for
PolyGram Shares -- Elimination of New York Registry; Elimination of Bearer
Shares."
SALE OF FILM DIVISION
Pursuant to the Offer Agreement, PolyGram has retained Goldman Sachs as its
principal financial advisor for the purpose of selling PolyGram's film division
as promptly as practicable. The sale process is being managed by a three-member
committee consisting of one designee of each of Seagram, PolyGram and Philips;
provided, that Seagram has the right to veto, in its sole discretion, any
decision of such committee, including approval of any specific proposal to sell
the film division. Each of Seagram, PolyGram and Philips has agreed to use its
reasonable best efforts to effect such sale. If a sale of PolyGram's film
division is closed prior to the Closing, the sale proceeds will be retained in
PolyGram for the benefit of Seagram. If an agreement to sell the film division
is not entered into prior to the Closing, following the Closing Seagram may
continue the efforts to effect such sale. See "Description of Transaction
Agreements -- Offer Agreement -- Sale of Film Division." On October 22, 1998,
Seagram announced that it had entered into an agreement in principle with MGM to
sell certain library assets of PolyGram's film division to a direct or indirect
wholly owned subsidiary of MGM following Seagram's acquisition of PolyGram.
Discussions with other parties regarding the sale of certain other library
assets of Polygram's film division have taken place, and Seagram is continuing
to examine strategic alternatives regarding the film division's production and
distribution operations. See "PolyGram N.V. -- Recent Developments."
POLYGRAM BOARD REPRESENTATION
Pursuant to the Offer Agreement, Philips has agreed to cause, upon
Seagram's request, the members of the Supervisory Board of PolyGram to resign as
of the Closing Date, except for any member who Seagram indicates it would like
to remain as a member of such Board. As soon as practicable after the
Commencement Date, Seagram will provide PolyGram and Philips with the names of
the individuals Seagram wishes to be appointed to, or remain as members of, the
Board of Management and the Supervisory Board of PolyGram effective as of the
Closing Date. Following receipt by PolyGram of the names of such individuals
(and any further information regarding these individuals as reasonably requested
by PolyGram), either at the Special Meeting or at a general meeting of
shareholders convened by PolyGram for the purpose of appointing these
individuals to the Supervisory Board and the Board of Management of PolyGram, as
the case may be, Philips has agreed to cause such appointments to take place
effective as of the Closing Date. As a result of its ownership of PolyGram
Shares following the Closing, Seagram will have significant influence as to the
nomination of new members to the PolyGram Board of Management and the PolyGram
Supervisory Board, as to the decisions of the PolyGram shareholders with respect
to, among other things, the election of such nominees and as to the decisions of
such Boards.
POSSIBLE PURCHASES OF POLYGRAM SHARES OUTSIDE THE OFFER
Pursuant to relief from Rule 10b-13 under the U.S. Exchange Act granted by
the SEC, Seagram and its subsidiaries may purchase PolyGram Shares during the
Offer, but outside of the Offer, subject to certain conditions. In accordance
with the terms of the SEC relief that has been granted, among other things,
(i) such purchases may not be effected within the United States,
(ii) information regarding any such purchases must be disclosed promptly by
press release and (iii) Seagram and its subsidiaries must comply with any
applicable rules of Netherlands organizations, including the Dutch Merger Code
and the rules of the AEX. In addition, as a condition to SEC relief, Seagram and
its subsidiaries have undertaken to voluntarily comply with provisions of the
City Code on Takeover and Mergers of the United Kingdom (the "City Code")
applicable to purchases of shares outside of an offer that is subject to the
City Code, including the requirement that Seagram increase the Offer
Consideration to the extent Seagram or any of its subsidiaries were to acquire
PolyGram Shares outside of the Offer at a price greater than the Cash
Consideration. As of the date of this
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Offering Circular/Prospectus, neither Seagram nor any of its subsidiaries has
purchased any PolyGram Shares outside of the Offer.
OTHER MATTERS
Except as indicated in this Offering Circular/Prospectus, Seagram has no
present plans or proposals which relate to or would result in an extraordinary
corporate transaction involving PolyGram or any of its subsidiaries, such as a
merger, reorganization, liquidation, or sale or transfer of a material amount of
assets, or any material changes in PolyGram's corporate structure or business or
the composition of its Board of Management, Supervisory Board or management.
Following the consummation of the Offer, Seagram will review PolyGram's
capitalization and dividend policy and consider which, if any, changes (in
addition to the changes described above) may be appropriate in light of the
conditions then prevailing.
POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR POLYGRAM SHARES
Upon consummation of the Offer, it is expected that there will be a limited
market, if any, for the PolyGram Shares. There can be no assurance that there
will be any public market for the PolyGram Shares upon consummation of the
Offer, or, if such market exists, there can be no assurance as to the extent to
which PolyGram Shares may be sold thereon or the price at which such shares may
be sold.
The PolyGram Shares are currently listed and traded on the AEX, which
constitutes the principal trading market for the PolyGram Shares. The PolyGram
Shares are also listed on the NYSE and are registered under the U.S. Exchange
Act. Depending upon the number of PolyGram Shares purchased pursuant to the
Offer and the number of PolyGram Shares accumulated by other parties, the
PolyGram Shares may be delisted either by the unilateral action of either such
exchange or at the request of PolyGram. In addition, the PolyGram Shares may be
eligible for deregistration under the U.S. Exchange Act following consummation
of the Offer. Seagram intends to seek the delisting of PolyGram Shares from the
AEX and the NYSE and the deregistration of the PolyGram Shares under the U.S.
Exchange Act as soon as possible following the Closing. Delisting and/or
deregistration of the PolyGram Shares could materially adversely affect the
liquidity and the market price of the PolyGram Shares in the Netherlands or the
United States, as applicable.
STOCK EXCHANGE DELISTING
According to its Listing and Issuing Rules, Amsterdam Exchanges would
consider delisting the PolyGram Shares if, among other things, (i) the
outstanding amount or number of PolyGram Shares should fall below the amount or
number of PolyGram Shares which justified a listing at the time when the
original application for listing was made, (ii) the trading volume of the
PolyGram Shares on the AEX should be too limited in the opinion of Amsterdam
Exchanges or (iii) other circumstances arise which would cause Amsterdam
Exchanges to be of the opinion that a normal and regular market for the PolyGram
Shares cannot be maintained.
According to the NYSE's published guidelines, the NYSE would consider
delisting the PolyGram Shares if, among other things, (i) the number of PolyGram
shareholders (including beneficial holders of PolyGram Shares held in the names
of NYSE member organizations in addition to holders of record) should fall below
1,200 and the average monthly trading value of PolyGram Shares for the most
recent 12 months should be less than 100,000 shares, (ii) the number of publicly
held PolyGram Shares should fall below 600,000 (exclusive of the holdings of
officers, directors or their immediate families and other concentrated holdings
of 10% or more), (iii) the aggregate market value of publicly held PolyGram
Shares should drop below $8,000,000 or (iv) the PolyGram Shares are no longer
registered under the U.S. Exchange Act.
If the listing of the PolyGram Shares is discontinued on either such
exchange, the market for the PolyGram Shares would be adversely affected, even
if the PolyGram Shares continue to be registered under the U.S. Exchange Act and
PolyGram continues to file the periodic reports and other documents required to
be filed thereunder.
If the AEX and/or NYSE were to delist the PolyGram Shares, it is possible
that the PolyGram Shares would begin to be traded on other securities exchanges
or in the over-the-counter market and that price quotations for the PolyGram
Shares would be reported by such exchanges, or by the National Association of
Securities Dealers, Inc. through the National Association of Securities Dealers
Automated Quotation System
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("NASDAQ"), or by other sources. The extent of the public market for the
PolyGram Shares and the availability of quotations would, however, depend upon
such factors as the number of PolyGram shareholders remaining at such time, the
interest in maintaining a market in the PolyGram Shares on the part of
securities firms, the possible termination of registration under the U.S.
Exchange Act, as described below, and other factors.
The PolyGram Shares are currently "margin securities" under the regulations
of the Board of Governors of the U.S. Federal Reserve System (the "Federal
Reserve Board"), which has the effect, among other things, of allowing brokers
to extend credit on the collateral of the PolyGram Shares. Depending upon
factors similar to those described above with respect to listing and market
quotations, it is possible that, following the Offer, the PolyGram Shares would
no longer constitute "margin securities" under the margin regulations of the
Federal Reserve Board, and, therefore, could no longer be used as collateral for
margin loans made by brokers.
DEREGISTRATION UNDER U.S. EXCHANGE ACT.
The PolyGram Shares are currently registered under the U.S. Exchange Act.
Registration of the PolyGram Shares under the U.S. Exchange Act may be
terminated upon the application of PolyGram to the SEC if the PolyGram Shares
were no longer listed on a U.S. national securities exchange, including the
NYSE, and there were to be fewer than 300 holders of record of the PolyGram
Shares. Termination of registration of the PolyGram Shares under the U.S.
Exchange Act would (i) result in the delisting of PolyGram Shares under the
NYSE's published guidelines, (ii) result in PolyGram Shares ceasing to be
"margin securities" or to be eligible for NASDAQ reporting, (iii) substantially
reduce the information required to be furnished by PolyGram to PolyGram
shareholders and (iv) render inapplicable certain provisions of the U.S.
Exchange Act, including the requirements of Rule 13e-3 under the U.S. Exchange
Act with respect to "going private" transactions. Moreover, if PolyGram were no
longer required to make periodic filings under the U.S. Exchange Act, affiliates
and any holders of "restricted securities" (as defined in Rule 144 under the
U.S. Securities Act) of PolyGram might be deprived of their ability to dispose
of their securities pursuant to Rule 144. If registration of the PolyGram Shares
under the U.S. Exchange Act were terminated, PolyGram would not provide reports
or information to its public shareholders other than as required under Dutch
Law.
ELIMINATION OF NEW YORK REGISTRY; ELIMINATION OF BEARER SHARES
As described under "-- Purpose of the Offer; Plans for
PolyGram -- Elimination of New York Registry; Elimination of Bearer Shares,"
Seagram intends to cause PolyGram to (i) eliminate the New York Registry and
(ii) amend the PolyGram Articles to require that all PolyGram Shares be held in
the form of PolyGram Dutch Registered Shares. Holders of PolyGram U.S.
Registered Shares will have to submit their share certificates to PolyGram for
re-registration as PolyGram Dutch Registered Shares. As a result of these
actions, PolyGram U.S. Registered Shares, PolyGram K-Shares and PolyGram
CF-Shares will be re-registered in the Netherlands Registry as PolyGram Dutch
Registered Shares. UNDER DUTCH LAW, IF POLYGRAM SHARES ARE DELISTED FROM THE
NYSE AND THE AEX, AND THE RE-REGISTRATION OF POLYGRAM U.S. REGISTERED SHARES,
POLYGRAM K-SHARES AND POLYGRAM CF-SHARES DESCRIBED ABOVE IS EFFECTED, THEN SUCH
SHARES CAN ONLY BE TRANSFERRED THROUGH A NOTARIAL DEED EXECUTED IN THE
NETHERLANDS BY A DUTCH CIVIL LAW NOTARY. THIS REQUIREMENT WOULD HAVE AN ADVERSE
EFFECT ON THE MARKET PRICE AND MARKETABILITY OF THE POLYGRAM SHARES.
SEAGRAM'S REASONS FOR THE OFFER
Seagram's Board of Directors believes that consummation of the Offer will
constitute a further step in the implementation of Seagram's strategy of
transforming itself into a global entertainment leader. As a result of the
acquisition of PolyGram, Seagram will own the largest music company in the
world, which will complement Universal's theme park business, major motion
picture studio and worldwide television production and distribution assets. As
part of its strategy, Seagram sold Tropicana. See "The Seagram Company
Ltd. -- Recent Developments." Following the acquisition of PolyGram and the
disposition of Tropicana, Seagram will manage two highly-focused businesses of
global scope and scale in entertainment and spirits and wine.
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Seagram's Board of Directors is confident about Seagram's future and
believes that the transformation Seagram began several years ago is beginning to
deliver the kind of enhanced growth potential envisioned. Seagram is
well-established in spirits and wine and is expanding its presence in the
entertainment industry. Seagram's Board of Directors believes that the results
achieved in the fiscal year ended June 30, 1998 demonstrate that entertainment
will provide Seagram with the growth opportunities it has been seeking and that
Seagram's businesses, with their emphasis on global marketing of
well-established brand names, are the right fit for its skills.
The acquisition of PolyGram provides Universal with the opportunity to
expand and diversify its music business, both geographically and by types of
music labels. Universal's music business is primarily conducted within North
America. Approximately two-thirds of its music revenues are derived from its
North American operations. PolyGram generates approximately three-quarters of
its music revenues outside North America through a broad and well-developed
sales and distribution network. Because Seagram believes that the best growth
prospects for music are outside of North America, Seagram believes the
combination of its music business with the music business of PolyGram will
provide Universal with the ability to compete more effectively outside of North
America by enhancing the breadth and depth of Universal's distribution
capability outside of North America. Moreover, the transaction will diversify
Universal's music labels. For example, while Universal does not currently have a
classical music repertoire, PolyGram has an extensive classical music
repertoire. In addition, Seagram has concluded that the acquisition of PolyGram
presents significant opportunities for cost savings and operating efficiencies.
Seagram estimates that integration of PolyGram with Universal will yield annual
operating cost savings of $275-300 million within two years after the Closing.
Based on estimates and assumptions about PolyGram's operations, Seagram believes
these savings will come from a number of areas, including consolidation of
manufacturing and distribution operations, elimination of Universal's third
party music distribution arrangements outside the United States, record label
consolidation and headquarters and other overhead reductions, including
consolidation of operations in the more than thirty countries where both
companies conduct business.
THE INFORMATION CONTAINED IN THE PRECEDING PARAGRAPH WAS NOT PREPARED WITH
A VIEW TO PUBLIC DISCLOSURE OR COMPLIANCE WITH PUBLISHED GUIDELINES OF THE SEC
OR THE GUIDELINES ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC
ACCOUNTANTS REGARDING FORWARD-LOOKING INFORMATION OR GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES AND WAS NOT EXAMINED, REVIEWED OR COMPILED BY INDEPENDENT
PUBLIC ACCOUNTANTS AND, ACCORDINGLY, THE INDEPENDENT PUBLIC ACCOUNTANTS DO NOT
EXPRESS AN OPINION OR ANY OTHER FORM OF ASSURANCE WITH RESPECT THERETO. THE
ESTIMATES OF ACHIEVABLE COST SAVINGS WERE BASED UPON A VARIETY OF ESTIMATES AND
ASSUMPTIONS. THE ESTIMATES AND ASSUMPTIONS UNDERLYING THESE ESTIMATED COST
SAVINGS INVOLVED JUDGMENTS WITH RESPECT TO, AMONG OTHER THINGS, FUTURE ECONOMIC,
COMPETITIVE AND FINANCIAL MARKET CONDITIONS AND FUTURE BUSINESS DECISIONS WHICH
MAY NOT BE REALIZED AND ARE INHERENTLY SUBJECT TO SIGNIFICANT BUSINESS,
ECONOMIC, AND COMPETITIVE UNCERTAINTIES (INCLUDING THOSE DESCRIBED UNDER
"-- BACKGROUND OF THE OFFER -- CERTAIN PROJECTED FINANCIAL INFORMATION"), ALL OF
WHICH ARE DIFFICULT TO PREDICT AND MANY OF WHICH ARE BEYOND THE CONTROL OF
SEAGRAM AND POLYGRAM BEFORE THE OFFER IS CONSUMMATED AND WILL BE BEYOND THE
CONTROL OF SEAGRAM AFTER THE OFFER IS CONSUMMATED. THERE CAN BE NO ASSURANCE
THAT THE ESTIMATED COST SAVINGS WILL BE REALIZED OR AS TO THE TIME PERIOD IN
WHICH ANY COST SAVINGS WILL BE REALIZED, AND ACTUAL RESULTS MAY VARY MATERIALLY
FROM SUCH ESTIMATES. ADDITIONALLY, THE ESTIMATED COST SAVINGS DO NOT REFLECT
REVISED PROSPECTS FOR THE BUSINESSES OF SEAGRAM AND POLYGRAM, CHANGES IN GENERAL
BUSINESS AND ECONOMIC CONDITIONS OR ANY OTHER TRANSACTION OR EVENT THAT HAS
OCCURRED OR THAT MAY OCCUR AND THAT WAS NOT ANTICIPATED AT THE TIME SUCH
INFORMATION WAS PREPARED. NONE OF THE ESTIMATED COST SAVINGS WAS INTENDED TO BE
A FORECAST OF
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PROFITS BY SEAGRAM OR ANY OF ITS DIRECTORS, AND POLYGRAM SHAREHOLDERS SHOULD NOT
PLACE UNDUE RELIANCE UPON ANY SUCH ESTIMATED COST SAVINGS IN DECIDING WHETHER TO
TENDER THEIR POLYGRAM SHARES IN THE OFFER. SEAGRAM HAS NOT UPDATED OR
SUPPLEMENTED THIS INFORMATION AND, EXCEPT AS REQUIRED BY LAW, DOES NOT INTEND TO
DO SO. THE INFORMATION SET FORTH UNDER "-- SEAGRAM'S REASONS FOR THE OFFER"
CONTAINS "FORWARD-LOOKING STATEMENTS." SEE "FORWARD-LOOKING STATEMENTS."
POLYGRAM'S REASONS FOR THE OFFER; RECOMMENDATION OF THE POLYGRAM BOARD OF
MANAGEMENT AND THE POLYGRAM SUPERVISORY BOARD
Each of the PolyGram Board of Management, by unanimous vote, and the
PolyGram Supervisory Board, by affirmative vote of all directors (other than two
designees of Philips, who abstained), has determined that the Offer is in the
best interests of PolyGram and is fair to the PolyGram shareholders, has
approved the Offer Agreement and recommends that PolyGram shareholders tender
their PolyGram Shares in the Offer. The Board of Management, in making its
recommendation to the Supervisory Board regarding the Offer and the Offer
Agreement and in making its recommendation to PolyGram shareholders, evaluated a
number of risks and opportunities relating to the Offer, including the following
factors:
(i) PolyGram Operating and Financial Condition: the financial
condition, assets, results of operations, business and prospects of
PolyGram as an independent company, and the risks inherent in achieving
those prospects;
(ii) Seagram/Universal Operating and Financial Condition: the
financial condition, assets, results of operations, business and prospects
of Seagram and the Universal music business, and the risks inherent in
achieving those prospects;
(iii) Lazard Freres Fairness Opinion: the June 21, 1998 opinion of
Lazard Freres to the effect that as of such date, the Offer Consideration
was fair to PolyGram shareholders from a financial point of view (attached
as Appendix A to this Offering Circular/Prospectus), and the presentations
by Lazard Freres at the May 21 and June 21, 1998 meetings of the PolyGram
Board of Management and the PolyGram Supervisory Board (see "-- Opinion of
PolyGram Financial Advisor");
(iv) Philips' 75% Ownership and Offer Approval: the fact that
Philips, which owns 75% of the issued PolyGram Shares, had approved the
Offer and had resolved to enter into the Offer Agreement, the Tender
Agreement, the Voting Agreement and the Stockholders Agreement;
(v) Offer Terms: the terms of the Offer, including the option for
PolyGram shareholders to elect to receive all Cash Consideration for their
PolyGram Shares, and the ability of PolyGram shareholders (other than
Philips) to receive, if they choose, a pro rata portion of the available
Share Consideration (representing up to 25% of the aggregate available
Share Consideration) and thus become holders of Seagram Shares and thereby
participate in the future prospects of the combined Universal-PolyGram
businesses as well as the other businesses of Seagram;
(vi) Combination of PolyGram and Universal Music and Film
Businesses: the benefits that may arise from the combination of PolyGram's
music and film businesses (assuming the PolyGram film business is not sold
prior to the Closing Date) with the businesses of Universal, including the
increased portfolio of artists and library assets, potential cost savings
and other synergies that may arise from the combination of the two
companies, increased global presence of the combined businesses and other
benefits from the expanded scope of the operations of the combined
businesses;
(vii) Terms of the Transaction Agreements: with the assistance of its
legal advisors, the terms of the Offer Agreement, the Tender Agreement, the
Voting Agreement and the Stockholders Agreements (collectively, the
"Transaction Agreements"), including the provisions in the Offer Agreement
regarding employee benefits, the conditions to the making of the Offer and
the consummation of the Offer, including the requirement that approval be
received from antitrust and other competition authorities in the United
States and Europe and the interim covenants regarding PolyGram's operations
between the signing of the Offer Agreement and consummation of the Offer;
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(viii) Market Price Information: with the assistance of Lazard
Freres, an analysis of the historical trading prices of PolyGram Shares and
Seagram Shares;
(ix) Comparable Transaction Information: with the assistance of
Lazard Freres, the financial terms of selected announced or completed
acquisition transactions in the music and entertainment industries;
(x) No Alternative Transaction: the Board of Management noted that,
although other expressions of interest in PolyGram had been received since
rumors of a possible transaction with Seagram had first been published in
early May 1998, no such indications had resulted in a specific proposal or
in substantive negotiations regarding a possible transaction that would be
more favorable to PolyGram shareholders than the Offer; and
(xi) Negotiation of Transaction Agreements: the history of the
negotiations with Seagram, including the fact that Philips had negotiated
with Seagram the financial terms of the Offer for a period prior to the
involvement of PolyGram, the NLG 2 per share reduction in the Offer
Consideration from the initial terms contained in the Letter of Intent and
the fact that neither Philips nor PolyGram believed that Seagram was likely
to enter into an agreement relating to the Offer on terms more favorable to
PolyGram shareholders than those of the Offer.
In addition, the Board of Management considered certain potentially
negative factors in its deliberations, including (i) the possibility that
required regulatory approvals to consummate the Offer would not be received,
(ii) the risk that, despite the efforts of PolyGram and Seagram, key management
personnel and key artists of PolyGram labels may not be retained and (iii) the
possible negative impact on the business of PolyGram between signing and closing
due to announcement of the Offer and the interim covenants relating to the
operation of PolyGram's business between signing of the Offer Agreement and the
Closing Date.
The Supervisory Board considered the same foregoing factors in making its
recommendation, as well as the recommendation of the Board of Management that
the Supervisory Board approve the Offer Agreement and recommend that PolyGram
shareholders tender their shares in the Offer.
In light of the number and wide variety of the factors, both positive and
negative, considered by the Board of Management and the Supervisory Board, the
respective boards did not find it practical to, and did not, quantify or
otherwise assign relative weights to the specific factors considered. Individual
members of these Boards may have given different weights to the various factors
considered. After weighing all of the different factors, the Board of Management
and Supervisory Board determined to recommend that PolyGram shareholders tender
their PolyGram Shares in the Offer. In May and June 1998, at the time of the
PolyGram Boards' consideration of the Offer, neither the PolyGram Boards nor
Lazard Freres had available to it certain Seagram financial information which
subsequently became publicly available. See "Available Information" and
"Incorporation of Certain Documents by Reference."
OPINION OF POLYGRAM FINANCIAL ADVISOR
PolyGram has retained Lazard Freres to act as its investment banker with
respect to the Offer. Lazard Freres delivered its written opinion to the
PolyGram Board of Management and the PolyGram Supervisory Board to the effect
that, as of June 21, 1998, the Offer Consideration is fair to PolyGram
shareholders from a financial point of view.
A copy of the full text of the opinion of Lazard Freres dated as of June
21, 1998, which sets forth the assumptions made, matters considered and
limitations on the review undertaken in connection with the opinion, is attached
hereto as Appendix A and is incorporated herein by reference. This summary
discussion of the opinion of Lazard Freres is qualified in its entirety by
reference to the full text of the opinion. The engagement of Lazard Freres and
its opinion were for the benefit of the PolyGram Board of Management and the
PolyGram Supervisory Board, and its opinion was rendered to each Board in
connection with its consideration of the Offer. Lazard Freres' opinion is
directed only to the fairness of the Offer Consideration from a financial point
of view to PolyGram shareholders and does not address any other aspect of the
Offer. The opinion is not intended to, and does not, constitute a recommendation
to any holder of PolyGram Shares as to whether such shareholder should
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tender shares in exchange for the Offer Consideration. POLYGRAM SHAREHOLDERS ARE
URGED TO READ THE OPINION OF LAZARD FRERES IN ITS ENTIRETY.
In connection with rendering its opinion to the PolyGram Board of
Management and the PolyGram Supervisory Board, Lazard Freres (i) reviewed the
financial terms and conditions of the Offer; (ii) analyzed certain historical
business and financial information relating to PolyGram and Seagram, including
Annual Reports on Form 10-K of Seagram, Quarterly Reports on Form 10-Q of
Seagram and Annual Reports on Form 20-F for PolyGram; (iii) reviewed various
financial forecasts and other data provided to Lazard Freres by PolyGram and
Seagram relating to their respective businesses (such forecasts, in the case of
Seagram, being limited to 1998, Seagram having informed Lazard Freres that no
longer-term forecasts were available), and the benefits projected by PolyGram
and Seagram to be realized in connection with the Offer; (iv) held discussions
with and was provided information by members of the senior managements of
PolyGram and Seagram with respect to the businesses and prospects of PolyGram
and Seagram, respectively, and the possible benefits which might be realized in
connection with the Offer; (v) reviewed public information with respect to
certain other companies in lines of businesses Lazard Freres believed to be
generally comparable to the businesses of PolyGram and Seagram; (vi) reviewed
the financial terms of certain business combinations involving companies in
lines of businesses Lazard Freres believed to be generally comparable to the
businesses of PolyGram; (vii) reviewed the historical stock prices and trading
volumes of the PolyGram Shares and Seagram Shares; and (viii) conducted such
other financial studies, analyses and investigations as Lazard Freres deemed
appropriate.
Lazard Freres assumed and relied upon the accuracy and completeness of the
financial and other information supplied to it by PolyGram and Seagram and
reviewed by it for the purpose of the Lazard Freres opinion. Lazard Freres has
not assumed any responsibility for any independent verification of such
information or any independent valuation or appraisal of any of the assets or
liabilities of PolyGram or Seagram. With respect to financial forecasts,
including the benefits projected by PolyGram and Seagram to be realized in
connection with the Offer, Lazard Freres assumed that they were reasonably
prepared on bases reflecting the best currently available estimates and
judgments of the managements of PolyGram and Seagram as to the future financial
performance of PolyGram and Seagram, respectively, and as to such projected
benefits. Lazard Freres assumed no responsibility for and expressed no view as
to such forecasts or the assumptions on which they were based. Lazard Freres
also assumed that the Offer would be consummated on the terms described in the
Offer Agreement, without any waiver of any material terms or conditions by
PolyGram and that obtaining the necessary regulatory approvals for the Offer
will not have an adverse effect on PolyGram or Seagram. In addition, the Lazard
Freres opinion was necessarily based on economic, monetary, market and other
conditions as in effect on, and the information made available to Lazard Freres
as of, the date of the Lazard Freres opinion. Furthermore, Lazard Freres
expressed no opinion regarding the likely trading range of Seagram Shares
following the consummation of the Offer, which may vary depending upon, among
other factors, changes in interest rates, dividend rates, market conditions,
general economic conditions and other factors that generally influence the price
of securities. The Lazard Freres opinion did not address the underlying business
decision to effect the Offer. The Lazard Freres opinion also did not address the
$90 million cash contribution to PolyGram which Philips has agreed to make
immediately prior to the Closing, nor did it address the fairness of the Offer
to Philips specifically with regard to the aforementioned $90 million cash
contribution.
The following is a summary of certain financial and comparative analyses
performed by Lazard Freres in connection with providing its oral opinion to the
PolyGram Board of Management and the PolyGram Supervisory Board and reviewed
with both Boards at a meeting on June 21, 1998. Such analyses were prepared
based upon the Offer Consideration and PolyGram management's financial
forecasts. Lazard Freres compared PolyGram management's forecasts for earnings
before interest, taxes, depreciation and amortization ("EBITDA") to the most
recent estimates from equity research analysts of three investment banks and
noted that aside from fiscal year 1998, PolyGram management's estimates were
higher than all three analyst estimates. Except as otherwise noted in this
summary, references to projected or forecasted results are based on consensus
Wall Street analyst estimates of such figures.
POLYGRAM SELECTED COMPARABLE PUBLICLY TRADED COMPANIES ANALYSIS
Lazard Freres performed its analysis with respect to PolyGram by separately
analyzing its music segment ("Music Segment") and its film segment ("Film
Segment"), and by valuing PolyGram as a whole. In
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performing its analysis for the individual segments, Lazard Freres assumed a
segment purchase price allocation for the Film Segment of NLG 1,560 million
($780 million) based upon discussions with the parties.
Music Segment. Lazard Freres reviewed and compared certain publicly
available actual and estimated financial, operating and stock market information
of EMI Group plc ("EMI"), which Lazard Freres believed to be the only pure-play
comparable publicly traded music company to PolyGram. The financial and
valuation data for EMI was adjusted by Lazard Freres to estimate the financial
and valuation characteristics pro forma for the disposal by EMI of its HMV
division. The analysis indicated that the market capitalization of EMI as a
multiple of projected 1998 EBITDA was 10.6x, and as a multiple of projected 1998
earnings before interest and taxes ("EBIT") was 13.5x.
Based on the NLG 115 ($57.50) per share Offer price, net debt of NLG 150
million ($75 million), option proceeds of NLG 359 million ($179.5 million), 180
million issued PolyGram Shares and the assumed purchase price allocation for the
Film Segment, the implied value of the Offer as a multiple of the Music
Segment's projected 1998 EBITDA was 14.9x, and as a multiple of the Music
Segment's projected 1998 EBIT was 17.3x.
Film Segment. Lazard Freres reviewed and compared certain publicly
available actual and estimated financial, operating and stock market information
of MGM, which Lazard Freres believed to be the most relevant comparable film
company to PolyGram. The analysis indicated that the market capitalization of
MGM as a multiple of projected 1998 revenue was 1.62x, and as a multiple of
projected 1999 EBITDA was 11.8x.
Based on the assumed purchase price allocation for the Film Segment, the
implied value of the Offer as a multiple of the Film Segment's projected 1998
revenue was 0.66x, and as a multiple of projected 1999 EBITDA was 11.6x.
PolyGram as a Whole. Lazard Freres reviewed and compared certain actual
and estimated financial, operating and stock market information of companies in
lines of businesses believed to be comparable to those of PolyGram. Lazard
Freres noted that, although there were no public companies with precisely the
same mix of businesses and financial condition as PolyGram, Lazard Freres
believed the most relevant publicly traded companies, apart from EMI, to be a
group of large capitalization media companies that included the Walt Disney
Company ("Walt Disney"), News Corporation Ltd. ("News Corp."), Viacom Inc.
("Viacom"), Time Warner Inc. ("Time Warner") and Seagram (the "Entertainment
Companies"). The analysis indicated that the market capitalization of the
Entertainment Companies as a multiple of projected 1998 EBITDA ranged from 9.3x
to 16.8x, and as a multiple of projected 1998 EBIT ranged from 10.8x to 29.6x.
Based on the assumptions described above, the implied value of the Offer as
a multiple of PolyGram's projected 1998 EBITDA was 17.3x, and as a multiple of
PolyGram's projected 1998 EBIT was 21.1x.
POLYGRAM SELECTED PRECEDENT TRANSACTIONS ANALYSIS
Lazard Freres again analyzed PolyGram by separately analyzing its Music
Segment and its Film Segment.
Music Segment. Lazard Freres reviewed and analyzed selected financial,
operating and stock market information relating to selected announced or
completed acquisition transactions in the music industry since September, 1986,
including the following: MCA INC., the former name of Universal
("MCA")/Interscope Records, PolyGram/Motown Records, Inc., Thorn EMI Ltd./Virgin
Music Group Ltd. ("Virgin"), EMI/ Chrysalis Records International Ltd.,
MCA/Geffen Records, PolyGram/A&M Records Co., Fujisankei Group Ltd./Virgin, Sony
Corporation ("Sony")/CBS Records, Inc. and Bertelsmann AG/RCA Corporation; as
well as the market value of EMI after it publicly announced that it was in
discussions to be acquired by an undisclosed third party (the "Music
Transactions"). Lazard Freres noted that the reasons for, and circumstances
surrounding, each of the transactions analyzed were diverse and the
characteristics of such transactions and the companies involved were not
directly comparable to the Offer and to the Music Segment. Based on an analysis
of financial, operating and stock market information relating to the music
businesses involved in the Music Transactions, the implied aggregate
consideration paid in the Music Transactions ranged from 10.8x to 16.9x last
twelve-month's ("LTM") EBITDA of the acquired businesses, and 12.2x to 26.4x LTM
EBIT of the acquired businesses.
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Based on the assumptions described above regarding the Music Segment, the
implied value of the Offer as a multiple of the Music Segment's LTM EBITDA was
15.7x, and as a multiple of the Music Segment's LTM EBIT was 18.4x. Based on the
assumptions described above as applied to PolyGram as a whole, the implied value
of the Offer as a multiple of PolyGram's consolidated LTM EBITDA was 18.4x, and
as a multiple of PolyGram's consolidated LTM EBIT was 22.6x.
Film Segment. Lazard Freres reviewed and analyzed selected financial,
operating and stock market information relating to selected announced or
completed acquisition transactions in the motion picture production and
distribution industry since June, 1989, including the following: MGM/Metromedia
International Group, Inc. ("Metromedia"), Investors/MGM, Metromedia/Samuel
Goldwyn Company, Time Warner/Turner Broadcasting System, Inc. ("Turner"),
Seagram/MCA, Viacom/Paramount Communications Inc., Turner/New Line Cinema
Corporation, Matsushita Electric Industrial Co., Ltd./MCA, Sony/ Columbia
Pictures Entertainment Inc., Time Inc./Warner Communications Inc. (the "Film
Transactions"). Lazard Freres noted that the reasons for, and circumstances
surrounding, each of the transactions analyzed were diverse and the
characteristics of such transactions and the companies involved were not
directly comparable to the Offer and to the Film Segment. Based on an analysis
of financial, operating and stock market information relating to the motion
picture production and distribution businesses involved in the Film
Transactions, the implied aggregate consideration paid in the Film Transactions
ranged from 1.3x to 3.7x LTM revenue for the acquired businesses, 14.9x to 30.4x
LTM EBITDA of the acquired businesses, and 18.1x to 38.9x LTM EBIT of the
acquired businesses.
Based on the assumed purchase price allocation for the Film Segment, the
implied value of the Offer as a multiple of the Film Segment's LTM revenue was
0.8x. Based on the assumptions described above regarding the Music Segment, the
implied value of the Offer as a multiple of PolyGram's consolidated LTM revenue
was 1.9x, as a multiple of PolyGram's consolidated LTM EBITDA was 18.4x, and as
a multiple of PolyGram's consolidated LTM EBIT was 22.6x.
POLYGRAM DISCOUNTED CASH FLOW ANALYSIS
Lazard Freres arrived at a range of values for PolyGram by separately
valuing its Music Segment and its Film Segment. Lazard Freres noted that the
Discounted Cash Flow ("DCF") valuations for the Music Segment and the Film
Segment utilized management long-term projections that, with the exception of
1998, had not been updated to reflect year-to-date performance. Lazard Freres
further noted that, with regard to the Music Segment, the music industry is
difficult to project, particularly in light of recent performance. In its
analysis, Lazard Freres assumed a valuation date and estimated balance sheet
date of June 30, 1998.
Music Segment. Based upon forecasts provided by the management of
PolyGram, Lazard Freres estimated the net present value of the future cash flows
of the Music Segment by first including certain asset sales and cost savings
estimated by the management of PolyGram. In its analysis, Lazard Freres assumed
discount rates ranging from 9% to 12% and perpetual growth rates of 3.25% to
4.0% for the Music Segment's business. In addition, Lazard Freres utilized the
assumed purchase price allocation for the Film Segment and the assumptions
described above regarding the Music Segment. This analysis indicated a net
present value per PolyGram Share ranging from approximately NLG 84 ($42.00) to
NLG 135 ($67.60). Lazard Freres then estimated the net present value of the
future cash flows of the Music Segment excluding the asset sales and cost
savings. In its analysis, Lazard Freres again assumed discount rates ranging
from 9% to 12% and perpetual growth rates of 3.25% to 4.0% for the Music
Segment's business. This analysis indicated a net present value per PolyGram
Share ranging from NLG 75 ($37.50) to NLG 124 ($62.00).
Film Segment. Based upon forecasts provided by the management of PolyGram,
Lazard Freres estimated the net present value of the future cash flows of the
Film Segment. For its conclusions, Lazard Freres assumed discount rates ranging
from 12% to 15% and perpetual growth rates of 3.0% to 6.0% for the Film
Segment's business. This analysis indicated a range of values for the Film
Segment of NLG 1,148 million ($574 million) to NLG 2,861 million ($1,430
million). Lazard Freres then estimated the net present value of the future cash
flows of the Film Segment by means of a "sum of parts" analysis which separately
analyzed each smaller segment of the larger Film Segment (smaller segments
consisting of Library, Current Production, Non-Music Video and Corporate
Overhead) and, for each smaller segment, employed a variety of discount rates
and exit multiples depending on the characteristics of the sub-segment. Lazard
Freres then
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combined these smaller segment discounted cash flows into the "sum of parts" DCF
valuation and determined a range of values for the Film Segment of NLG 1,187
million ($593.5 million) to NLG 2,881 million ($1,440 million).
POLYGRAM FILM SEGMENT VALUATION OF EXISTING ASSETS
Based upon actual and forecast financial information provided by the
management of PolyGram, Lazard Freres estimated the value of the Film Segment's
assets, including but not limited to the value of released films, unreleased
films and non-music videos, by utilizing both a discounted cash flow and a book
value methodology. For its analysis of the value of the Film Segment's library,
Lazard Freres utilized a discounted cash flow methodology assuming discount
rates ranging from 7.0% to 10.0% and perpetual growth rates of -0.2% to 1.0%.
This analysis indicated a range of values for the Film Segment of PolyGram of
NLG 2,425 million ($1,212 million) to NLG 3,045 million ($1,522 million).
POLYGRAM LEVERAGED ACQUISITION ANALYSIS
Lazard Freres estimated a range of values for PolyGram that might be paid
in the context of a leveraged acquisition by a financially oriented purchaser.
Lazard Freres analyzed separate scenarios including and excluding potential
asset sales and cost savings. Lazard Freres estimated that the maximum price per
share at which a leveraged transaction could be financed would be in the range
of NLG 105 ($52.50) to NLG 106 ($53.00) without cost savings or asset sales, or
NLG 117 ($58.50) to NLG 118 ($59.00) assuming the successful disposition of
non-core assets and the achievement of potential cost savings.
SEAGRAM ILLUSTRATIVE SEGMENT VALUATION
The Offer Consideration includes $2,000 million in Seagram Shares based on
an assumed value of $41.75 per share. On June 19, 1998, the closing price of
Seagram Shares on the NYSE was $41.6250. Lazard Freres compared this public
market value to an implied value per share derived by aggregating the
theoretical value of each of Seagram's major lines of business based on current
public market multiples for companies in similar industries. For this analysis,
Lazard Freres reviewed the current trading multiples of six industries. In
addition to companies in the music publishing and film entertainment industries
that were analyzed as part of the valuation of PolyGram discussed above, Lazard
analyzed four additional industry groups with activities comparable to business
units of Seagram. The first group included the Coca-Cola Company, Pepsi and
Cadbury Schwepps plc (the "Beverage Companies"). The second group included
Bestfoods, Campbell Soup Company, General Mills Inc., H.J. Heinz Company,
Hershey Foods Corporation, Kellogg Company, Nabisco Holdings Corporation and the
Quaker Oats Company (the "Branded Food Companies"). The third group included
Allied Domecq plc ("Allied Domecq"), Brown-Forman Corporation ("Brown-Forman"),
Diageo plc ("Diageo"), Pernod Ricard S.A. ("Pernod Ricard") and Remy Cointreau
S.A. ("Remy Cointreau") (the "Spirits Companies"). The fourth group included
Cedar Fair L.P. and Premier Parks Inc. (the "Theme Parks"). The analysis
indicated that the market capitalization of the Beverage Companies as a multiple
of projected 1998 EBITDA ranged from 11.8x to 30.7x. The analysis indicated that
the market capitalization of the Branded Food Companies as a multiple of
projected 1998 EBITDA ranged from 8.9x to 13.4x. The analysis indicated that the
market capitalization of the Spirits Companies as a multiple of projected 1998
EBITDA ranged from 8.9x to 13.9x. The analysis indicated that the market
capitalization of the Theme Parks as a multiple of projected 1998 EBITDA ranged
from 12.1x to 14.3x.
Based on the range of estimated 1998 EBITDA multiples for these comparable
businesses, Lazard Freres projected a theoretical value range for each of
Seagram's businesses. Lazard then added to the aggregate of the theoretical
segment values the current value of other assets of Seagram including cash,
after-tax proceeds from the sale of Seagram's investment in Time Warner and
material investments in public companies (E.I. duPont de Nemours and Company
("DuPont")) and subtracted the value of minority interests in subsidiaries and
Seagram's debt, thereby obtaining a theoretical equity value range of $15,268
million to $17,084 million. This analysis indicated an implied theoretical
equity value per Seagram Share range of $43.30 to $48.44. Lazard noted that this
implied valuation range was slightly in excess of the assumed market price for
Seagram Shares of $41.75.
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PRO FORMA MERGER ANALYSIS
Lazard Freres considered the effect the Offer could have on the earnings
per share ("EPS") of the combined company, compared with the EPS of Seagram on a
stand-alone basis. Based on estimates by PolyGram's management and Seagram's
management with respect to the businesses of PolyGram and Seagram, respectively,
and after giving effect to certain assumptions including the divestiture of
Tropicana and shares of Time Warner, the analysis indicated that the Offer would
be dilutive to the projected EPS of Seagram in 1998 and slightly accretive to
the EPS of Seagram starting in 1999. In this analysis, Lazard Freres assumed
that both PolyGram and Seagram would perform substantially in accordance with
earnings estimates provided to Lazard Freres by the managements of PolyGram and
Seagram. The actual results achieved by Seagram following the Offer may vary
from projected results and the variations may be material.
IMPLIED PRO FORMA VALUE OF THE SHARE CONSIDERATION
In order to assess the value of the Share Consideration to be received in
the Offer, Lazard Freres considered the pro forma impact of the Offer on the
price of Seagram Shares. Lazard Freres assumed that, following consummation of
the Offer, (1) the Seagram Shares would trade at multiples ranging from 10.0x to
13.0x projected 1998 and 1999 EBITDA based on Seagram management forecasts for
1998 and consensus Wall Street analyst estimates for 1999 and (2) that the
combined company could achieve $100 million to $300 million of pre-tax
synergies. Based on such assumptions and giving effect to certain adjustments,
Lazard Freres determined that the implied equity value per Seagram Share ranged
from $27.58 to $47.29 based on projected 1998 EBITDA, and from $41.74 to $65.70
based on projected 1999 EBITDA.
For informational purposes for the PolyGram Board of Management and the
PolyGram Supervisory Board, Lazard Freres reviewed the historical trading
performance of PolyGram Shares and Seagram Shares. Lazard Freres compared the
trading history of PolyGram Shares, EMI common stock, a "Media Index"
(consisting of the stocks of Walt Disney, News Corp., Viacom, Time Warner and
Seagram), the Amsterdam Index and the Standard & Poor's 500 Index ("S&P 500
Index"), for the one-year period from May 14, 1997 through May 14, 1998 and the
three-year period from May 15, 1995 through May 14, 1998. Lazard Freres observed
that during the three-year period PolyGram Shares generally underperformed the
Media Index, the Amsterdam Index, the S&P 500 Index and EMI common stock, but
that during the one-year period PolyGram Shares outperformed EMI common stock.
Lazard Freres also compared the trading history of Seagram Shares, a Media Index
(consisting of the stocks of Walt Disney, News Corp., Viacom, Time Warner and
Seagram), a "Spirits Index" (consisting of the stocks of Allied Domecq, Brown &
Forman, Diageo, Pernod Ricard and Remy Cointreau) and the S&P 500 Index, for the
one-year period from June 19, 1997 through June 19, 1998 and the three-year
period from June 19, 1995 through June 19, 1998. Lazard Freres observed that
during the one-year period Seagram Shares underperformed the Media Index, the
Spirits Index and the S&P 500, but that during the three-year period Seagram
Shares outperformed the Spirits Index. Lazard Freres further observed that 87%
of the trading volume of PolyGram Shares during the year prior to the
announcement of the signing of the Offer Agreement was at prices less than the
NLG 115 ($57.50) stated value of the Offer Consideration. For additional
informational purposes, Lazard Freres also reviewed recent commentary by Wall
Street equity research analysts regarding the potential value of PolyGram.
Lazard Freres noted that on March 27, 1998, these analysts valued PolyGram at a
range of NLG 100 ($50.00) to NLG 115 ($57.50) per share.
SPECIAL CONSIDERATIONS
The preparation of a fairness opinion is a complex process and is not
necessarily susceptible to partial analysis or summary description. Selecting
portions of the analyses or the summary set forth above, without considering the
analyses as a whole, could create an incomplete or misleading view of the
process underlying the opinion of Lazard Freres. No company or transaction used
in the above analyses as a comparison is identical to PolyGram or Seagram or the
transaction contemplated by the Offer Agreement. The analyses were prepared
solely for purposes of Lazard Freres providing its opinion to the PolyGram Board
of Management and the PolyGram Supervisory Board in connection with each Board's
consideration of the Offer and do not purport to be appraisals or to reflect the
prices at which businesses or securities actually may be sold, which may be
significantly more or less favorable than as set forth in these analyses.
Similarly, any
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estimate of values or forecast of future results contained in the analyses is
not necessarily indicative of actual values or actual future results, which may
be significantly more or less favorable than suggested by such analyses.
In addition, in performing its analyses, Lazard Freres made numerous
assumptions with respect to industry performance, general business and economic
conditions and other matters. Because such analyses are inherently subject to
uncertainty, being based upon numerous factors or events beyond the control of
the parties or their respective advisors, none of PolyGram, Lazard Freres, or
any other person assumes responsibility if future results or actual values are
materially different from those forecasts or estimates contained in the
analyses. As described above, Lazard Freres' opinion to the PolyGram Board of
Management and the PolyGram Supervisory Board was one of many factors taken into
consideration by each Board in making its determination to approve the Offer
Agreement. The foregoing summary does not purport to be a complete description
of the analyses performed by Lazard Freres and is qualified by reference to the
written opinion of Lazard Freres set forth in Appendix A hereto.
Lazard Freres is an internationally recognized investment banking firm and
is continually engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions, negotiated underwritings, secondary
distributions of listed and unlisted securities, private placements, leveraged
buyouts and valuations for estate, corporate and other purposes. Lazard Freres
was selected to act as financial advisor to the PolyGram Board of Management and
the PolyGram Supervisory Board because its investment banking professionals have
substantial experience in transactions similar to the Offer and because of its
expertise and reputation in investment banking and mergers and acquisitions
generally as well as its familiarity with PolyGram. Lazard Freres is not
regulated by any authority or body in the Netherlands, and rendered the opinion
summarized above in accordance with customary practice in the United States.
With PolyGram's consent, after consultation with counsel, Lazard Freres assumed
that law, custom and practice in the Netherlands relating to opinions such as
the one summarized above are not materially different from those in the United
States.
Pursuant to a letter agreement, dated as of March 1, 1998 between Lazard
Freres and PolyGram, Lazard Freres was retained to act as investment banker for
PolyGram. In accordance with the letter agreement, Lazard Freres was engaged to
advise PolyGram in connection with its exploration of strategic options and to
evaluate any significant transaction involving PolyGram. In connection with
Lazard Freres' services as investment banker to PolyGram, including its
rendering of the opinion summarized above, PolyGram has paid Lazard Freres a fee
of $2 million and has agreed to pay Lazard Freres an additional fee of $8
million upon the earlier of the acquisition of a beneficial ownership interest
by Seagram of a majority of PolyGram's voting securities and the consummation of
the Offer. PolyGram has also agreed to reimburse Lazard Freres for its
reasonable out-of-pocket expenses (including fees and expenses of its legal
counsel) and will indemnify Lazard Freres and certain related parties against
certain liabilities, including certain liabilities arising under the federal
securities laws.
Lazard Freres has from time to time in the past provided investment banking
and financial advisory services to Philips and Seagram for which Lazard Freres
has received customary fees. In addition, a Senior Advisor to Lazard Freres is a
member of the Supervisory Board of PolyGram. In the ordinary course of its
business, Lazard Freres and its affiliates may actively trade in the securities
of PolyGram and Seagram for their own account and for the account of their
customers and, accordingly, may at any time hold a long or short position in
such securities.
TERMS OF THE OFFER
The Offer is made pursuant to the Offer Agreement in respect of all issued
PolyGram Shares and the terms and conditions of the Offer will be the same for
all PolyGram shareholders. 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), Seagram will accept and pay for each
PolyGram Share properly tendered pursuant to the Offer from the Commencement
Date until the Expiration Date and for which the tender is not properly
withdrawn as described under "-- Withdrawal Rights." See "-- Acceptance of
Tendered Shares; Delivery of the Offer Consideration."
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The Offer is conditioned upon, among other things, (i) the satisfaction of
the Minimum Condition, (ii) the expiration or termination of any waiting periods
under the HSR Act applicable to the purchase of PolyGram Shares in the Offer and
any waiting periods under any applicable non-U.S. statutes and regulations (the
"Antitrust Condition"), and (iii) the receipt in respect of the Offer and any
matters arising therefrom of confirmation by way of a decision of the European
Commission under Article 6(1)(b) or Article 8(2) of Council Regulation (EEC) No.
4064/89 of December 21, 1989 (the "Merger Regulation") that the transactions
contemplated by the Offer Agreement and any matters arising therefrom are
compatible with the common market (the "EU Condition"). The waiting period under
the HSR Act expired on July 8, 1998, and the European Commission issued its
decision on September 21, 1998 that it would not oppose Seagram's acquisition of
PolyGram and that such transaction is compatible with the common market. See
"-- Certain Conditions of the Offer" for a more complete description of the
Offer Conditions.
To the maximum extent permitted by Dutch Law, Seagram expressly reserves
the right (but shall not be obligated), in its sole discretion, to waive any of
the Offer Conditions (except as described in the last sentence of this
paragraph) and make any changes, to the extent permitted by the Offer Agreement,
Dutch Law and other applicable law, to the terms and conditions of the Offer (or
extend the Offer beyond a scheduled Expiration Date if any of the Offer
Conditions is not satisfied) by giving oral or written notice of such waiver,
amendment or extension to the Exchange Agents. Notwithstanding the foregoing,
(i) Seagram may not make any change to any of the Offer Conditions unless
Seagram terminates the Offer and commences a new offer, if so required by Dutch
Law, and (ii) unless previously approved by PolyGram and Philips in writing,
Seagram may not make any change to the terms and conditions of the Offer that
increases the Minimum Condition, decreases the price per share payable in the
Offer, changes the form of consideration payable in the Offer (other than by
adding consideration), reduces the maximum number of PolyGram Shares to be
purchased in the Offer, or amends the terms of the Offer or the Offer Conditions
or imposes additional conditions or terms to the Offer which are adverse to
PolyGram shareholders or make the likelihood of the Offer succeeding more remote
in any material respect. Moreover, Seagram has agreed in the Offer Agreement
that, in the event that the Offer Agreement is terminated as described below
under "Description of Transaction Agreements -- Offer Agreement -- Termination,"
(i) Seagram will not be entitled to waive the Minimum Condition without the
prior written consent of Philips and PolyGram and (ii) unless PolyGram otherwise
agrees, Philips will not tender its PolyGram Shares in the Offer and Philips
will withdraw any of its PolyGram Shares previously tendered in the Offer.
Subject to the provisions of the Offer Agreement (including those described
in the next paragraph), if by the Expiration Date any or all of the Offer
Conditions have not been satisfied, Seagram reserves the right (but shall not be
obligated) to (i) terminate the Offer and return all Tendered Shares to
tendering PolyGram shareholders, (ii) waive all of the Offer Conditions not
satisfied and, subject to complying with applicable rules and regulations of the
SEC and Dutch Law, accept all Tendered Shares, (iii) extend the Offer and,
subject to the terms of the Offer (including the rights of PolyGram shareholders
to withdraw their Tendered Shares as described under "-- Withdrawal Rights"),
retain the Tendered Shares until the termination of the Offer, as extended, or
(iv) amend the Offer, subject to the restrictions described in the immediately
preceding paragraph and to applicable law (including Dutch Law).
Notwithstanding the foregoing, pursuant to the Offer Agreement, Seagram has
agreed that, if it is unable to consummate the Offer at the then-current
Expiration Date due to the failure of any of the Offer Conditions to be
satisfied or waived, it will, unless the Offer Agreement is terminated in
accordance with its terms (see "Description of Transaction Agreements -- Offer
Agreement -- Termination") extend the Offer and set a subsequent scheduled
Expiration Date, and will continue to so extend the Offer and set subsequent
scheduled Expiration Dates, until the Termination Date (provided that under no
circumstances is Seagram required to extend the Offer past June 21, 1999). See
"Description of Transaction Agreements -- Offer Agreement -- The Offer."
In the event that the Offer is extended, each subsequent scheduled
Expiration Date will be not later than the earliest of (i) 20 business days
following the previous scheduled Expiration Date, (ii) the date on which Seagram
reasonably believes that all Offer Conditions (other than the Minimum Condition)
will be satisfied or waived and (iii) the Termination Date. During any extension
of the Offer, PolyGram Shares tendered prior
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to such extension will continue to be Tendered Shares, subject to the rights of
a tendering PolyGram shareholder to withdraw such holder's Tendered Shares. See
"-- Withdrawal Rights."
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable, but in any event in accordance with applicable law, by
public announcement thereof. In the case of an extension, Rule 14e-1(d) under
the U.S. Exchange Act requires that the announcement be issued no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the U.S. Exchange Act. Any announcement will
also comply with the Listing and Issuing Rules of Amsterdam Exchanges and the
Dutch Merger Code. Subject to applicable law (including Rules 14d-4(c) and
14d-6(d) under the U.S. Exchange Act and the rules and regulations of Amsterdam
Exchanges which require that any material change in the information published,
sent or given to PolyGram shareholders in connection with the Offer be promptly
disseminated to such shareholders in a manner reasonably designed to inform such
shareholders of such change) and without limiting the manner in which Seagram
may choose to make any public announcement, Seagram will not have any obligation
to publish, advertise or otherwise communicate any such public announcement
other than by (i) making a release to the Dow Jones News Service and (ii)
complying with the applicable public announcement requirements of the Listing
and Issuing Rules of Amsterdam Exchanges and the Dutch Merger Code.
If, to the extent permitted by the terms of the Offer Agreement and
applicable law (including Dutch Law), Seagram makes a material change in the
terms of the Offer, or if, to the extent permitted by the terms of the Offer
Agreement, it waives a material condition of the Offer, Seagram will (i)
disseminate additional tender offer material and extend the Offer to the extent
required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the U.S. Exchange Act and
the Listing and Issuing Rules of Amsterdam Exchanges and the Dutch Merger Code
or (ii) with respect to any change to any of the Offer Conditions, terminate the
Offer and commence a new offer, if so required by Dutch Law. The minimum period
during which an offer must remain open following material changes in the terms
of the offer, other than a change in price or a change in percentage of
securities sought or a change in any dealer's soliciting fee, will depend upon
the facts and circumstances, including the materiality, of the changes. With
respect to a change in price or, subject to certain limitations, a change in the
percentage of securities sought or a change in any dealer's soliciting fee, a
minimum ten business day period from the day of such change is generally
required under applicable U.S. law to allow for adequate dissemination to
shareholders. Accordingly, if prior to the Expiration Date, Seagram decreases
the number of PolyGram Shares being sought, increases or decreases the
consideration offered pursuant to the Offer or changes any dealer's soliciting
fee, and if the Offer is scheduled to expire at any time earlier than the period
ending on the tenth business day from the date that notice of such increase,
decrease or change is first published, sent or given to shareholders, the Offer
will be extended at least until the expiration of such ten business day period.
Tendering PolyGram shareholders will not be obligated to pay any charges or
expenses of the Exchange Agents or any brokerage commissions. Except as set
forth in the Letter of Transmittal or Application Form, as applicable, or as
described under "-- Acceptance of Tendered Shares; Delivery of the Offer
Consideration -- Delivery of the Offer Consideration to Holders of PolyGram U.S.
Registered Shares," transfer taxes on the exchange of PolyGram Shares pursuant
to the Offer will be paid by or on behalf of Seagram. UNDER NO CIRCUMSTANCES
WILL INTEREST BE PAID PURSUANT TO THE OFFER, REGARDLESS OF ANY DELAY IN MAKING
ANY PAYMENT.
Pursuant to the Offer Agreement, Seagram may, at any time, transfer or
assign to one or more subsidiaries of Seagram (organized or incorporated under
the laws of Canada, the United States, the Netherlands or any other
jurisdiction, provided that such other jurisdiction would not impose a
withholding tax on the payment of the Offer Consideration) the right to purchase
all or any portion of the Tendered Shares, but any such transfer or assignment
will not relieve Seagram of its obligations under the Offer or prejudice the
rights of tendering PolyGram shareholders to receive payment for the Tendered
Shares which are accepted pursuant to the Offer.
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OFFER CONSIDERATION
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 Offer will commit Seagram to acquire each Tendered Share for,
at the election of the holder, but subject to the provisions relating to
fractional Seagram Shares described below and the limitations described under
"-- Limited Availability of Share Consideration," either (i) Share
Consideration, subject to certain anti-dilution adjustments described under
"-- Election Procedures," or (ii) Cash Consideration. For a description of the
procedures for making such an election, see "-- Election Procedures."
Seagram will not issue any fractional Seagram Shares in the Offer. In lieu
of any such fractional Seagram Share, each tendering PolyGram shareholder who
would otherwise be entitled to receive a fractional Seagram Share will receive
an amount in cash (without interest) determined by multiplying the fractional
interest in a Seagram Share to which such shareholder would otherwise be
entitled by NLG 83.50.
Because the market price of Seagram Shares will fluctuate, the market value
of the Share Consideration at any time both before and after the Closing Date is
likely to be higher or lower than the Cash Consideration. Each PolyGram
shareholder has the equal opportunity to receive Share Consideration in the
Offer, subject to the limitations described below under "-- Limited Availability
of Share Consideration."
NONE OF SEAGRAM, POLYGRAM OR PHILIPS MAKES ANY RECOMMENDATION AS TO WHETHER
POLYGRAM SHAREHOLDERS SHOULD ELECT TO RECEIVE CASH CONSIDERATION OR SHARE
CONSIDERATION PURSUANT TO THE OFFER. EACH POLYGRAM SHAREHOLDER MUST MAKE ITS OWN
DECISION WITH RESPECT TO SUCH ELECTION. ALTHOUGH SEAGRAM HAS AGREED TO USE ITS
BEST EFFORTS TO CAUSE THE SEAGRAM SHARES TO BE ISSUED AS SHARE CONSIDERATION TO
BE AUTHORIZED FOR LISTING, UPON OFFICIAL NOTICE OF ISSUANCE, ON THE NYSE AND THE
TSE, SEAGRAM DOES NOT INTEND TO CAUSE THE SEAGRAM SHARES TO BE AUTHORIZED FOR
LISTING ON THE AEX. SEE "CERTAIN MATERIAL TAX CONSEQUENCES" FOR A DESCRIPTION OF
CERTAIN CONSEQUENCES RELATED TO RECEIVING CASH CONSIDERATION AND SHARE
CONSIDERATION PURSUANT TO THE OFFER.
Pursuant to the Tender Agreement, Philips has agreed, for so long as the
Offer Agreement is in effect, to validly tender pursuant to and in accordance
with the terms of the Offer and not withdraw such tender of all of its
135,000,000 PolyGram Shares (75% of the issued PolyGram Shares as of the date of
this Offering Circular/Prospectus) and to elect to receive Share Consideration
in respect of all such PolyGram Shares. See "Description of Transaction
Agreements -- Tender Agreement -- Tender and Election." Pursuant to the Offer
Agreement, Philips may terminate the Offer Agreement in the circumstances
described under "Description of Transaction Agreements -- Offer
Agreement -- Termination," including certain circumstances relating to a Seagram
Material Adverse Effect as described in paragraph (v) thereunder. Upon
termination of the Offer Agreement in accordance with its terms, the Tender
Agreement and Philips' obligation to tender and not withdraw such tender of its
PolyGram Shares pursuant thereto will terminate.
In addition, pursuant to the Offer Agreement, to the extent fully permitted
by law, PolyGram has agreed to validly tender pursuant to the Offer and not
withdraw such tender of all of the PolyGram Shares held in treasury as of the
Expiration Date (1,645,526, or approximately 0.9%, of the issued PolyGram Shares
as of September 30, 1998) and to elect to receive Cash Consideration in respect
of such PolyGram Shares. PolyGram has informed Seagram that, consistent with its
historical practice, it intends to deliver treasury shares, to the extent
available, rather than issue additional PolyGram Shares in connection with the
exercise of PolyGram stock options, prior to the Expiration Date (3,548,704 of
which were outstanding as of September 30, 1998). Accordingly, the number of
PolyGram Shares held in treasury will decrease to the extent PolyGram stock
options are exercised prior to the Expiration Date.
See "Summary -- Comparative Market Prices and Dividends" for a description
of the comparative share prices of the Seagram Shares and the PolyGram Shares
for each three-month period beginning on January 1, 1996, as well as for recent
closing sale prices for the Seagram Shares and the PolyGram Shares. PolyGram
shareholders should obtain current quotes for the Seagram Shares and the
PolyGram Shares.
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<PAGE> 51
ELECTION PROCEDURES
GENERAL
Each holder of Tendered Shares will have the right to specify (an
"Election"), subject to the provisions relating to fractional Seagram Shares
described under "-- Offer Consideration" and the limitations described under
"-- Limited Availability of Share Consideration," (i) the number of Tendered
Shares owned by such holder that such holder desires to have exchanged for Share
Consideration in the Offer (a "Share Election") and (ii) the number of Tendered
Shares owned by such holder that such holder desires to have exchanged for Cash
Consideration in the Offer (a "Cash Election").
Each Tendered Share for which a valid Share Election has been received will
be exchanged for Share Consideration in the Offer, subject to the limitations
referred to in the immediately preceding paragraph. Each Tendered Share for
which a valid Cash Election has been received and each Non-Electing Share will
be exchanged for Cash Consideration in the Offer. If Seagram determines that any
Election is not properly made with respect to any Tendered Shares, such Election
shall be deemed to be not in effect, and the Tendered Shares covered by such
Election shall, for purposes of the Offer, be deemed to be Non-Electing Shares.
Seagram has the right to make rules, which shall not be inconsistent with
the terms of the Offer Agreement, shall be in accordance with applicable law,
including the Dutch Merger Code and the rules and regulations of Amsterdam
Exchanges, shall be reasonably acceptable to PolyGram and Philips and shall be
equitable to the PolyGram shareholders, governing the validity of any Election,
the manner and extent to which Elections are to be taken into account in making
the determinations required by the Offer Agreement, the issuance and delivery of
certificates or scrips for Seagram Shares exchanged for Tendered Shares pursuant
to the Offer and the payment of cash for Tendered Shares exchanged for Cash
Consideration pursuant to the Offer. Such rules must be consistent with U.S. and
Dutch customary practices, as applicable, in connection with exchange offers.
All questions as to the validity of any Election or change of Election will
be determined by Seagram, in its sole discretion, which determination shall be
final and binding on all parties. Except as otherwise described herein, Seagram
also reserves the absolute right to waive any defect or irregularity in any
Election or change of Election by any PolyGram shareholder whether or not
similar defects or irregularities are waived in the case of other PolyGram
shareholders. No election will be deemed to have been validly made until all
defects or irregularities have been cured or waived. None of Seagram, the Dealer
Managers, the Exchange Agents, the Information Agent or any other person will be
under any duty to give notification of any defects or irregularities in
Elections or changes of Election or incur any liability for failure to give such
notification.
In the event that, between the date of the Offer Agreement and the Closing
Date, (i) Seagram shall have effected a dividend or other distribution of cash,
assets or securities (including but not limited to equity securities and
including by issuing rights, options or warrants entitling the holder thereof to
subscribe for or purchase securities, but excluding quarterly ordinary dividends
paid at a rate that is not in excess of 150% of Seagram's current dividend rate
consistent with past practice and rights, options or warrants issued at or above
current market price), or (ii) Seagram Shares shall have been affected or
changed into a different number of shares or a different class of shares as a
result of a share split, reverse share split, share distribution, spin-off,
recapitalization, reclassification (other than a change in par value) or other
similar transaction with a record date within such period, the Share
Consideration shall be equitably adjusted by Seagram in a manner reasonably
satisfactory to Philips and PolyGram. In the event that at any time, as a result
of an adjustment made pursuant to the preceding sentence, a PolyGram shareholder
making a Share Election shall become entitled to receive any securities of
Seagram other than the Seagram Shares upon consummation of the Offer, thereafter
the number of such other securities so receivable upon consummation of the Offer
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Seagram
Shares contained in this paragraph.
FOR HOLDERS OF DUTCH POLYGRAM SHARES
PolyGram CF-Shares. Each holder of PolyGram CF-Shares will be requested by
its Custodian to indicate whether such holder wishes to make a Share Election
and/or a Cash Election for its Tendered Shares. Such holder must provide
instructions to its Custodian as to its Election (on the Application Form, if
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<PAGE> 52
so required by its Custodian), in accordance with the procedures of, and in any
event before the date (which will precede the Expiration Date) established by,
the Custodian. See "-- Procedure for Tendering PolyGram Shares -- For Holders of
Dutch PolyGram Shares -- PolyGram CF-Shares." Any holder of tendered PolyGram
CF-Shares may change its election in accordance with the procedures of, and in
any event before the election date established by, its Custodian.
PolyGram K-Shares and PolyGram Dutch Registered Shares. Any Election with
respect to PolyGram K-Shares or PolyGram Dutch Registered Shares shall have been
properly made only if it is made on the Application Form, properly completed and
signed, and is received and accepted by the Dutch Exchange Agent by the
Expiration Date. Copies of the Application Form are provided with this Offering
Circular/Prospectus. Additional copies of the Application Form will be available
upon request from the Dutch Exchange Agent at the address and telephone number
set forth on the back cover of this Offering Circular/Prospectus. See
"-- Procedure for Tendering PolyGram Shares -- For Holders of Dutch PolyGram
Shares -- PolyGram K-Shares" and "-- Procedure for Tendering PolyGram
Shares -- For Holders of Dutch PolyGram Shares -- PolyGram Dutch Registered
Shares."
Any holder of tendered PolyGram K-Shares or PolyGram Dutch Registered
Shares may change its Election only by written notice, signed and dated by such
shareholder (or, to the extent a holder of PolyGram K-Shares has deposited such
shares with a custodian and has directed the Custodian to change the Election,
signed and dated by the Custodian on such holder's behalf), received by the
Dutch Exchange Agent at the address set forth on the back cover of this Offering
Circular/Prospectus at any time prior to the Expiration Date. Such notice must
specify (i) the name of the person who tendered the PolyGram K-Shares or
PolyGram Dutch Registered Shares, as applicable, which are subject to such
notice, (ii) in the case of PolyGram K-Shares, the certificate number shown on
the certificate(s) representing such Tendered Shares and (iii) in the case of
PolyGram Dutch Registered Shares, the name of the registered holder.
FOR HOLDERS OF POLYGRAM U.S. REGISTERED SHARES
Any Election with respect to PolyGram U.S. Registered Shares shall have
been properly made only if it is made on the Letter of Transmittal (or a Notice
of Guaranteed Delivery if the guaranteed delivery procedure is followed),
properly completed and signed, and is received and accepted by the U.S. Exchange
Agent by the Expiration Date. A copy of each of the Letter of Transmittal and
the Notice of Guaranteed Delivery is being mailed simultaneously with this
Offering Circular/Prospectus. See "-- Procedures for Tendering PolyGram Shares."
Additional copies of the Letter of Transmittal and Notice of Guaranteed Delivery
will be available upon request from the Information Agent at its address and
telephone number set forth on the back cover of this Offering
Circular/Prospectus.
Any holder of tendered PolyGram U.S. Registered Shares may change its
Election only by written notice, signed and dated by such shareholder, received
by the U.S. Exchange Agent at the address set forth on the back cover of this
Offering Circular/Prospectus at any time prior to the Expiration Date. Such
notice must specify (i) the name of the person who tendered the PolyGram U.S.
Registered Shares which are subject to such notice, (ii) the certificate number
shown on the certificate(s) representing such Tendered Shares and (iii) the name
of the registered holder, if different from that of the person who tendered such
Tendered Shares.
LIMITED AVAILABILITY OF SHARE CONSIDERATION
Pursuant to the Offer Agreement, Share Consideration will be paid in
respect of 34,783,758 Tendered Shares (an aggregate of 47,904,191 Seagram
Shares, representing approximately 12.1% of the outstanding Seagram Shares
following consummation of the Offer, based on the number of outstanding Seagram
Shares as of September 30, 1998) and Cash Consideration will be paid in respect
of all other Tendered Shares. For so long as the Offer Agreement is in effect,
Philips has agreed to validly tender pursuant to and in accordance with the
terms of the Offer and not withdraw such tender of all of its PolyGram Shares
and to elect to receive Seagram Shares in respect of all of its PolyGram Shares.
See "Description of Transaction Agreements -- Tender Agreement -- Tender and
Election." If no other PolyGram shareholder makes a Share Election, Philips will
receive an aggregate of 47,904,191 Seagram Shares in the Offer in respect of
34,783,758 of its PolyGram Shares and Cash Consideration in respect of its
remaining PolyGram Shares. If PolyGram
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shareholders (other than Philips) make Share Elections, all such shareholders
(including Philips) will have an equal opportunity to receive Share
Consideration in the Offer (based on the number of Tendered Shares in respect of
which each such holder (including Philips) has made a Share Election), subject
to the limitation that Share Consideration will be paid in respect of an
aggregate of 34,783,758 Tendered Shares.
Accordingly, PolyGram shareholders (including Philips) who elect to receive
Share Consideration may experience a range of actual outcomes based upon the
elections of other PolyGram shareholders. To the extent Share Elections are made
in respect of more than 34,783,758 Tendered Shares, each tendering PolyGram
shareholder making a Share Election will receive (x) Cash Consideration in the
Offer in respect of such number of Tendered Shares in respect of which such
shareholder has made a Share Election equal to (i) the number of Tendered Shares
in respect of which such shareholder has made a Share Election minus (ii) the
number of Tendered Shares in respect of which such shareholder has made a Share
Election multiplied by a fraction the numerator of which equals 34,783,758 and
the denominator of which equals the aggregate number of Tendered Shares for
which a Share Election has been made by all tendering shareholders (including
Philips) and (y) Share Consideration in respect of the remaining portion of the
Tendered Shares in respect of which such shareholder has made a Share Election,
subject to the provisions relating to fractional Seagram Shares described in
"-- Offer Consideration." The following examples further illustrate the
potential effects of proration. For purposes of the examples, the impact of
fractional shares has been excluded. Furthermore, it is assumed for purposes of
these examples that all PolyGram shareholders tender their PolyGram Shares into
the Offer and that PolyGram will hold 1,645,526 PolyGram Shares in treasury on
the Expiration Date.
A. HOLDER A TENDERS 1,000 POLYGRAM SHARES AND ELECTS TO RECEIVE SHARE
CONSIDERATION IN RESPECT OF ALL OF SUCH SHARES.
1. If no PolyGram shareholders (other than Holder A and Philips) make
a Share Election, then Holder A will receive Share Consideration in respect
of 257 PolyGram Shares and Cash Consideration in respect of 743 PolyGram
Shares. Holder A will receive a total of 353 Seagram Shares (257 PolyGram
Shares times 1.3772) and a total of NLG 85,445 (743 PolyGram Shares times
NLG 115).
2. If all PolyGram shareholders (including Holder A and Philips, but
excluding PolyGram with respect to PolyGram Shares held in treasury) make a
Share Election, then Holder A will receive Share Consideration in respect
of 195 PolyGram Shares and Cash Consideration in respect of 805 PolyGram
Shares. Holder A will receive a total of 268 Seagram Shares (195 PolyGram
Shares times 1.3772) and a total of NLG 92,575 (805 PolyGram Shares times
NLG 115).
B. HOLDER B TENDERS 1,000 POLYGRAM SHARES AND ELECTS TO RECEIVE SHARE
CONSIDERATION IN RESPECT OF 500 OF SUCH SHARES AND CASH CONSIDERATION IN RESPECT
OF 500 OF SUCH SHARES.
1. If no PolyGram shareholders (other than Holder B and Philips) make
a Share Election, then Holder A will receive Share Consideration in respect
of 128 PolyGram Shares and Cash Consideration in respect of 872 PolyGram
Shares. Holder A will receive a total of 176 Seagram Shares (128 PolyGram
Shares times 1.3772) and a total of NLG 100,280 (872 PolyGram Shares times
NLG 115).
2. If all PolyGram shareholders (including Holder B and Philips, but
excluding PolyGram with respect to the PolyGram Shares held in treasury)
make a Share Election, then Holder A will receive Share Consideration in
respect of 97 PolyGram Shares and Cash Consideration in respect of 903
PolyGram Shares. Holder A will receive a total of 133 Seagram Shares (97
PolyGram Shares times 1.3772) and a total of NLG 103,845 (903 PolyGram
Shares times NLG 115).
C. HOLDER C TENDERS 1,000 POLYGRAM SHARES AND ELECTS TO RECEIVE CASH
CONSIDERATION IN RESPECT OF ALL OF SUCH SHARES.
Regardless of whether other PolyGram shareholders (including Philips)
make a Share Election, Holder C will receive Cash Consideration in respect
of all of its PolyGram Shares. Holder C will receive a total of NLG 115,000
(1,000 PolyGram Shares times NLG 115).
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PROCEDURE FOR TENDERING POLYGRAM SHARES
FOR HOLDERS OF DUTCH POLYGRAM SHARES
PolyGram CF-Shares. Following a public notice by the Dutch Exchange Agent
concerning the Offer and the availability of this Offering Circular/Prospectus
and the Application Form, each holder of PolyGram CF-Shares will by customary
practice be contacted by the Custodian through which such holder's PolyGram
CF-Shares are held. The Custodian will inquire as to whether such holder desires
to tender its PolyGram CF-Shares pursuant to the Offer and if so, whether such
holder desires to make a Share Election and/or a Cash Election with respect to
each such PolyGram CF-Share. See "-- Election Procedures -- For Holders of Dutch
PolyGram Shares -- PolyGram CF-Shares." Any holder of PolyGram CF-Shares who
wishes to tender its PolyGram CF-Shares must instruct its Custodian to that
effect in accordance with the procedures of, and in any event before the date
(which will precede the Expiration Date) established by, the Custodian
(including by completing and signing the Application Form, if so required by the
Custodian).
All Custodians will notify the Dutch Exchange Agent on the Expiration Date
of the number of PolyGram CF-Shares tendered by their respective clients
pursuant to the Offer, the number of such shares for which Cash Elections have
been made and the number of such shares for which Share Elections have been
made. If Seagram accepts all tendered PolyGram CF-Shares pursuant to the Offer,
then on the Closing Date the Custodians will cause the PolyGram CF-Shares
tendered by their respective clients to be transferred in book-entry form into
the NECIGEF account of the Dutch Exchange Agent in accordance with NECIGEF
procedures and subsequently into the account of Seagram with the Dutch Exchange
Agent against payment of the Offer Consideration to the Custodians for the
benefit of their respective clients. See "-- Acceptance of Tendered Shares;
Delivery of the Offer Consideration." In the event that a holder of PolyGram
CF-Shares does not respond to the request for an election by the applicable
Custodian, such Custodian may, depending on its policies, tender such holder's
PolyGram Shares with a Share Election and/or Cash Election, which election shall
be binding on the holder. The practices and policies of Custodians differ in
this regard, and holders of PolyGram CF-Shares should contact the relevant
Custodian regarding its procedures relating to the Offer.
PolyGram K-Shares. In order for PolyGram K-Shares to be validly tendered
pursuant to the Offer, the Application Form, properly completed and duly
executed, together with any other documents required by such form and the share
certificates representing the tendered PolyGram K-Shares (including talon and
all dividend coupons numbered as from number 9), must be delivered by the holder
thereof (or, to the extent any holder has deposited its PolyGram K-Shares with a
Custodian, delivered by the Custodian on such holder's behalf) and received by
the Dutch Exchange Agent on or prior to the Expiration Date.
PolyGram Dutch Registered Shares. In order for PolyGram Dutch Registered
Shares to be validly tendered pursuant to the Offer, the Application Form,
properly completed and duly executed, together with any other documents required
by such form, must be received by the Dutch Exchange Agent on or prior to the
Expiration Date.
FOR HOLDERS OF POLYGRAM U.S. REGISTERED SHARES
Except as set forth below, in order for PolyGram U.S. Registered Shares to
be validly tendered pursuant to the Offer, the Letter of Transmittal, properly
completed and duly executed, together with any required signature guarantees, or
an Agent's Message in connection with a book-entry delivery of PolyGram U.S.
Registered Shares, and any other documents required by the Letter of
Transmittal, must be received by the U.S. Exchange Agent at one of its addresses
set forth on the back cover of this Offering Circular/Prospectus on or prior to
the Expiration Date and either (i) the share certificates evidencing tendered
PolyGram U.S. Registered Shares must be received by the U.S. Exchange Agent at
such address or such tendered PolyGram U.S. Registered Shares must be tendered
pursuant to the procedure for book-entry transfer described below and a
Book-Entry Confirmation must be received by the U.S. Exchange Agent, in each
case on or prior to the Expiration Date, or (ii) the guaranteed delivery
procedures described below must be complied with. "Agent's Message" means a
message, transmitted by the Book-Entry Transfer Facility to, and received by,
the U.S. Exchange Agent and forming a part of the Book-Entry Confirmation, which
states that the Book-Entry Transfer Facility has received an express
acknowledgment from the participant in the Book-Entry Transfer
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Facility tendering the PolyGram U.S. Registered Shares which are the subject of
such Book-Entry Confirmation, that such participant has received and agrees to
be bound by the terms of the Letter of Transmittal and that Seagram may enforce
such agreement against such participant. See "-- Book-Entry Transfer."
Book-Entry Transfer. The U.S. Exchange Agent will make a request to
establish accounts with respect to the PolyGram U.S. Registered Shares at the
Book-Entry Transfer Facility for purposes of the Offer within two business days
after the date of this Offering Circular/Prospectus. Any financial institution
that is a participant in the system of the Book-Entry Transfer Facility may make
book-entry delivery of tendered PolyGram U.S. Registered Shares by causing the
Book-Entry Transfer Facility to transfer such tendered PolyGram U.S. Registered
Shares into the U.S. Exchange Agent's account at the Book-Entry Transfer
Facility in accordance with the Book-Entry Transfer Facility's procedures for
such transfer. However, although delivery of tendered PolyGram U.S. Registered
Shares may be effected through book-entry transfer at a Book-Entry Transfer
Facility, the Letter of Transmittal, properly completed and duly executed,
together with any required signature guarantees, or an Agent's Message, and any
other documents required by the Letter of Transmittal, must, in any case, be
received by the U.S. Exchange Agent at one of its addresses set forth on the
back cover of this Offering Circular/Prospectus prior to the Expiration Date, or
the guaranteed delivery procedures described below must be complied with.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE U.S. EXCHANGE AGENT.
Signature Guarantees. Signatures on Letters of Transmittal must be
guaranteed by a firm which is a member in good standing of the Securities
Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the
New York Stock Exchange, Inc. Medallion Signature Program (each of the foregoing
being referred to as an "Eligible Institution"), except in cases where PolyGram
U.S. Registered Shares are tendered (i) by a registered holder of such PolyGram
U.S. Registered Shares who has not completed either the box labeled "Special
Payment Instructions" or the box labeled "Special Delivery Instructions" on the
Letter of Transmittal or (ii) for the account of an Eligible Institution. See
Instructions A.1 and A.5 of the Letter of Transmittal.
If the share certificates evidencing tendered PolyGram U.S. Registered
Shares are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made, or share certificates not
accepted pursuant to the Offer or not tendered are to be returned, to a person
other than the registered holder(s), the share certificates must be endorsed or
accompanied by appropriate stock powers, signed exactly as the name(s) of the
registered holder(s) appear on such certificates, with the signature(s) on such
certificates or stock powers guaranteed as aforesaid. See Instructions A.1 and
A.5 of the Letter of Transmittal.
If share certificates evidencing tendered PolyGram U.S. Registered Shares
are forwarded separately to the U.S. Exchange Agent, a properly completed and
duly executed Letter of Transmittal must accompany each such delivery.
Guaranteed Delivery. If a PolyGram shareholder desires to tender PolyGram
U.S. Registered Shares pursuant to the Offer and such shareholder's share
certificates are not immediately available or such shareholder cannot deliver
share certificates and all other required documents to the U.S. Exchange Agent
on or prior to the Expiration Date, or such shareholder cannot complete the
procedure for delivery by book-entry transfer on a timely basis, such PolyGram
U.S. Registered Shares may nevertheless be tendered, provided that all of the
following conditions are satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by Seagram, is received
by the U.S. Exchange Agent, as provided below, on or prior to the
Expiration Date; and
(iii) the share certificates (or a Book-Entry Confirmation)
representing all tendered PolyGram U.S. Registered Shares, in proper form
for transfer, in each case together with the Letter of Transmittal,
properly completed and duly executed, with any required signature
guarantees or, in the case of a book-entry delivery, an Agent's Message,
and any other documents required by the Letter of Transmittal are
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received by the U.S. Exchange Agent within three NYSE trading days after
the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery must be delivered by hand or mailed to
the U.S. Exchange Agent and must include a guarantee by an Eligible Institution
in the form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for tendered PolyGram
U.S. Registered Shares accepted pursuant to the Offer will in all cases be made
only after timely receipt by the Exchange Agent of share certificates for (or of
Book-Entry Confirmation with respect to) such tendered PolyGram U.S. Registered
Shares, a properly completed and duly executed Letter of Transmittal, together
with any required signature guarantees, or, in the case of a book-entry
delivery, an Agent's Message, and any other documents required by the Letter of
Transmittal. Accordingly, payment for tendered PolyGram U.S. Registered Shares
might not be made to all tendering PolyGram shareholders at the same time, and
will depend upon when share certificates, or Book-Entry Confirmations of such
Tendered Shares, and such other documents are actually received by the U.S.
Exchange Agent. Under no circumstances will interest be paid by Seagram on the
Offer Consideration, regardless of any extension of the Offer or any delay in
making such payment.
Currency Election. Although the Cash Consideration is stated in Dutch
Guilders, the U.S. Exchange Agent will make payments in respect of Cash
Consideration and cash in lieu of fractional Seagram Shares for PolyGram U.S.
Registered Shares tendered and accepted pursuant to the Offer in US Dollars
based on the US Dollar/Dutch Guilder exchange rate prevailing on the date on
which funds are made available to the U.S. Exchange Agent, unless holders of
PolyGram U.S. Registered Shares elect to receive all such payments in Dutch
Guilders. Holders of PolyGram U.S. Registered Shares who tender PolyGram U.S.
Registered Shares by book-entry transfer and wish to receive cash payments
pursuant to the Offer in Dutch Guilders instead of US Dollars must also (i)
provide the U.S. Exchange Agent with (A) wire instructions for an account in the
Netherlands to which such payment may be made or (B) an address to which a check
for such payment may be mailed and (ii) submit with their Letter of Transmittal
a copy of the Agent's Message used to tender such PolyGram U.S. Registered
Shares. In the event that any such wire instructions are invalid or incomplete,
such payment will be made in Dutch Guilders by check. See Instruction A.8 of the
Letter of Transmittal. Holders of PolyGram U.S. Registered Shares who elect to
receive cash payments pursuant to the Offer in Dutch Guilders and who do not
tender such shares by book-entry transfer must have their signature on the
Letter of Transmittal guaranteed by an Eligible Institution. See Instruction A.1
of the Letter of Transmittal.
For holders who tender PolyGram U.S. Registered Shares pursuant to the
Offer and do not elect to receive cash payments in Dutch Guilders, all Cash
Consideration and cash in lieu of fractional Seagram Shares payable to such
holders will be converted, without charge, from Dutch Guilders to US Dollars at
the exchange rate obtainable by the U.S. Exchange Agent on the spot market on
the date the Cash Consideration and cash in lieu of fractional Seagram Shares is
made available by Seagram to the U.S. Exchange Agent for delivery in respect of
the applicable PolyGram U.S. Registered Shares.
The actual amount of US Dollars received will depend upon the US
Dollar/Dutch Guilder exchange rate prevailing on the date on which funds are
made available to the U.S. Exchange Agent by Seagram. Holders of PolyGram U.S.
Registered Shares should be aware that the exchange rate which is prevailing on
the date on which such holder executes the Letter of Transmittal and on the date
of dispatch of payment may be different from that prevailing on the date on
which funds are made available to the U.S. Exchange Agent by Seagram. See
"Exchange Rates" for historical information regarding the US Dollar/Dutch
Guilder exchange rates. In all cases, fluctuations in the US Dollar/Dutch
Guilder exchange rate are at the risk of tendering holders of PolyGram U.S.
Registered Shares who do not elect to receive their cash payments in Dutch
Guilders. Such currency exchange will be effected by the U.S. Exchange Agent on
behalf of the requesting holder of PolyGram U.S. Registered Shares and Seagram
shall have no responsibility or obligation with respect to such currency
exchange.
DETERMINATION OF VALIDITY
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any tender of PolyGram Shares will be determined by
Seagram, in its sole discretion, which determination shall be final
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and binding on all parties. Seagram reserves the absolute right to reject any
and all tenders determined by it not to be in proper form or the acceptance for
exchange of which may, in the opinion of its counsel, be unlawful. Except as
otherwise described herein or in the Offer Agreement, Seagram also reserves the
absolute right to waive any defect or irregularity in any tender of PolyGram
Shares of any particular PolyGram shareholder whether or not similar defects or
irregularities are waived in the case of other PolyGram shareholders. No tender
of PolyGram Shares will be deemed to have been validly made until all defects
and irregularities have been cured or waived. None of Seagram, the Dealer
Managers, the Exchange Agents, the Information Agent or any other person will be
under any duty to give notification of any defects or irregularities in tenders
or incur any liability for failure to give any such notification. Seagram's
interpretation of the terms and conditions of the Offer (including the
Application Form and the Letter of Transmittal and the instructions thereto)
will be final and binding.
BACKUP U.S. FEDERAL TAX WITHHOLDING
To prevent U.S. federal income tax backup withholding equal to 31% of the
gross proceeds pursuant to the Offer, a PolyGram shareholder that is a U.S.
person should provide the U.S. Exchange Agent with such shareholder's correct
taxpayer identification number ("TIN") (or certify that such taxpayer is
awaiting a TIN) and provide certain other information by completing a Substitute
Form W-9 and signing the main signature form included as part of the Letter of
Transmittal (unless an applicable exemption exists and is proved in a manner
satisfactory to Seagram and the Exchange Agent). Non-U.S. PolyGram shareholders
that own PolyGram U.S. Registered Shares should complete and sign the main
signature form and a Form W-8, Certificate of Foreign Status, a copy of which
may be obtained from the Exchange Agent, in order to avoid backup withholding.
See Instruction A.9 to the Letter of Transmittal.
OTHER MATTERS
THE METHOD OF DELIVERY OF TENDERED SHARES, AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY OR
THROUGH NECIGEF, IS AT THE OPTION AND RISK OF THE TENDERING POLYGRAM
SHAREHOLDER. 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.
Seagram's acceptance for payment of PolyGram Shares tendered pursuant to
any of the procedures described above will constitute a binding agreement
between the tendering PolyGram shareholder and Seagram upon the terms and
subject to the conditions of the Offer.
WITHDRAWAL RIGHTS
GENERAL
Tenders of PolyGram Shares made pursuant to the Offer are irrevocable,
except that tenders of PolyGram Shares pursuant to the Offer may be withdrawn at
any time on or prior to the Expiration Date and, unless theretofore accepted by
Seagram pursuant to the Offer, may also be withdrawn at any time after January
2, 1999 (or such later date as may apply in case the Offer is extended), in each
case to the fullest extent permitted by the U.S. Exchange Act and the rules and
regulations promulgated thereunder and applicable Dutch Law and according to the
procedures described below.
All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by Seagram, in its sole discretion,
whose determination will be final and binding. None of Seagram, any of its
affiliates or assigns, the Dealer Managers, the Exchange Agents, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification.
Any PolyGram Shares for which the tender has been properly withdrawn will
thereafter be deemed not to have been validly tendered for purposes of the
Offer. However, PolyGram Shares for which the tender has been withdrawn may be
re-tendered at any time on or prior to the Expiration Date by following the
procedures described under "-- Procedure for Tendering PolyGram Shares."
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FOR HOLDERS OF DUTCH POLYGRAM SHARES
PolyGram CF-Shares. For a withdrawal of a tender of PolyGram CF-Shares to
be effective, a holder of such shares must notify such holder's Custodian in
accordance with the procedures of the Custodian. With respect to a tender of
PolyGram CF-Shares withdrawn prior to the Expiration Date, each Custodian shall
exclude such PolyGram Shares from the notice to the Dutch Agent of the number of
such PolyGram CF-Shares tendered by its clients. See "-- Procedure for Tendering
PolyGram Shares -- For Holders of Dutch PolyGram Shares -- PolyGram CF-Shares."
With respect to a tender of PolyGram CF-Shares withdrawn after January 2, 1999
(after the Expiration Date but prior to the earlier of (i) the termination of
the Offer or (ii) the acceptance of the Tendered Shares pursuant to the Offer),
each Custodian must provide timely notice to the Dutch Exchange Agent of the
number of such PolyGram CF-Shares to be withdrawn. Any such notice of withdrawal
from the Custodian may be effected by written, telegraphic, telex or facsimile
transmission.
PolyGram K-Shares and PolyGram Dutch Registered Shares. For a withdrawal
of a tender of PolyGram K-Shares or PolyGram Dutch Registered Shares to be
effective, a written, telegraphic, telex or facsimile transmission notice of
withdrawal must be delivered by the holder thereof (or to the extent any holder
of PolyGram K-Shares has deposited such shares with a Custodian, delivered by
the Custodian on such holder's behalf) and timely received by the Dutch Exchange
Agent at the address set forth on the back cover of this Offering
Circular/Prospectus. Any notice of withdrawal must specify the name of the
person who tendered the PolyGram K-Shares or PolyGram Dutch Registered Shares,
as applicable, for which the tender is to be withdrawn and the number of shares
for which the tender is to be withdrawn, and, in the case of PolyGram Dutch
Registered Shares, the name of the registered holder. Prior to the release by
the Dutch Exchange Agent of any PolyGram K-Share certificates withdrawn, the
serial numbers shown on such certificates must be submitted to the Dutch
Exchange Agent.
FOR HOLDERS OF POLYGRAM U.S. REGISTERED SHARES
For a withdrawal of a tender of PolyGram U.S. Registered Shares to be
effective, a written or telex transmission notice of withdrawal must be timely
received by the U.S. Exchange Agent at one of its addresses set forth on the
back cover of this Offering Circular/Prospectus. Any notice of withdrawal must
specify the name of the person who tendered the PolyGram U.S. Registered Shares
for which the tender is to be withdrawn, the number of PolyGram U.S. Registered
Shares for which the tender is to be withdrawn and the name of the registered
holder, if different from that of the person who tendered such shares. If share
certificates for PolyGram U.S. Registered Shares for which the tender is to be
withdrawn have been delivered or otherwise identified to the U.S. Exchange
Agent, then, prior to the physical release of such certificates, the serial
numbers shown on such certificates must be submitted to the U.S. Exchange Agent
and the signature(s) on the notice of withdrawal must be guaranteed by an
Eligible Institution unless such PolyGram U.S. Registered Shares have been
tendered for the account of an Eligible Institution. If PolyGram U.S. Registered
Shares have been tendered pursuant to the procedure for book-entry transfer as
described under "-- Procedure for Tendering PolyGram Shares -- For Holders of
PolyGram U.S. Registered Shares -- Book-Entry Transfer," any notice of
withdrawal must specify the name and number of the account at the Book-Entry
Transfer Facility to be credited with the PolyGram U.S. Registered Shares for
which the tender is to be withdrawn, in which case a notice of withdrawal will
be effective if delivered to the U.S. Exchange Agent by any method of delivery
described in the first sentence of this paragraph.
ACCEPTANCE OF TENDERED SHARES; DELIVERY OF THE OFFER CONSIDERATION
GENERAL
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), Seagram will accept pursuant to the Offer, and will pay Cash
Consideration or issue Share Consideration for, all Tendered Shares promptly
after the Expiration Date. If Seagram extends the Offer, is delayed in its
acceptance of or payment for PolyGram Shares or is unable to make payment for
Tendered Shares for any reason, then, without prejudice to Seagram's rights
under the Offer, the Exchange Agents may nevertheless, on behalf of Seagram,
retain Tendered Shares, and such Tendered Shares may not be withdrawn except to
the extent that tendering PolyGram shareholders are entitled
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to withdrawal rights as described under "-- Withdrawal Rights." However, Seagram
acknowledges that Rule 14e-1(c) under the U.S. Exchange Act requires Seagram to
pay the Offer Consideration or return the Tendered Shares promptly after the
termination or withdrawal of the Offer.
For purposes of the Offer, Seagram will be deemed to have accepted Tendered
Shares as, if and when Seagram gives oral or written notice to the Exchange
Agents of Seagram's acceptance of such Tendered Shares pursuant to the Offer.
If, prior to the Expiration Date, Seagram increases the Offer
Consideration, such increased consideration will be given to all PolyGram
shareholders whose PolyGram Shares are accepted pursuant to the Offer, whether
or not such PolyGram Shares were tendered prior to such increase in
consideration. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID PURSUANT TO THE
OFFER, REGARDLESS OF ANY DELAY IN MAKING ANY PAYMENT.
DELIVERY OF OFFER CONSIDERATION TO HOLDERS OF DUTCH POLYGRAM SHARES
Payment for tendered Dutch PolyGram Shares accepted pursuant to the Offer
will be made only after timely receipt by the Dutch Exchange Agent of (i) in the
case of PolyGram CF-Shares, confirmation from NECIGEF of a book-entry transfer
of such PolyGram CF-Shares into the Dutch Exchange Agent's account at NECIGEF
pursuant to the procedures set forth under "-- Procedure for Tendering PolyGram
Shares -- For Holders of Dutch PolyGram Shares -- PolyGram CF-Shares," (ii) in
the case of PolyGram K-Shares, the Application Form, properly completed and duly
executed, together with any other documents required by such form and the
certificates representing the tendered PolyGram K-Shares (including talon and
all dividend coupons numbered as from number 9) and (iii) in the case of
PolyGram Dutch Registered Shares, the Application Form, properly completed and
duly executed, together with any other documents required by such form.
On or prior to the Closing Date, Seagram will deliver to the Exchange
Agents certificates representing that number of Seagram Shares to which holders
of Dutch PolyGram Shares are entitled, as determined in accordance with the
terms of the Offer. See "-- Limited Availability of Share Consideration." As
soon as practicable after the Closing Date, each holder of tendered Dutch
PolyGram Shares exchanged for Share Consideration pursuant to the Offer will
receive certificates representing the number of Seagram Shares for which such
Tendered Shares will have been exchanged (or, in the case of a holder tendering
PolyGram CF-Shares, such Seagram Shares will be credited to an account with the
U.S. correspondent bank of such holder's Custodian).
On or prior to the Closing Date, Seagram will deposit with the Dutch
Exchange Agent cash in an amount equal to the Cash Consideration multiplied by
the number of tendered Dutch PolyGram Shares to be exchanged for Cash
Consideration. At, or as soon as practicable after, the Closing Date, the Dutch
Exchange Agent shall distribute to each holder of tendered Dutch PolyGram Shares
exchanged for Cash Consideration pursuant to the Offer, an amount equal to the
Cash Consideration times the number of Tendered Shares so exchanged (plus any
amounts in respect of fractional Seagram Shares as described under "-- Offer
Consideration") by making a payment (i) in the case of PolyGram CF-Shares, to
the relevant Custodians for the benefit of their respective clients, (ii) in the
case of PolyGram K-Shares, into the bank account designated by the tendering
PolyGram shareholder (or, to the extent any holder of PolyGram K-Shares has
deposited such shares with a Custodian, designated by the Custodian) in the
Application Form or (iii) in the case of PolyGram Dutch Registered Shares, into
the bank account designated by the tendering PolyGram shareholder in the
Application Form.
If any tendered PolyGram K-Shares are not accepted pursuant to the Offer
for any reason or if certificates for PolyGram K-Shares are submitted for more
shares than are tendered, share certificates evidencing un-exchanged or
un-tendered PolyGram K-Shares will be returned, without expense to the tendering
PolyGram shareholder (or, to the extent such shareholder has deposited PolyGram
K-Shares with a Custodian, to the Custodian), promptly following the expiration,
termination or withdrawal of the Offer.
DELIVERY OF OFFER CONSIDERATION TO HOLDERS OF POLYGRAM U.S. REGISTERED SHARES
Payment for tendered PolyGram U.S. Registered Shares accepted pursuant to
the Offer will be made only after timely receipt by the U.S. Exchange Agent of
(i) share certificates for tendered PolyGram U.S.
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Registered Shares, or the Book-Entry Confirmation of a book-entry transfer of
such Tendered Shares into the Exchange Agent's account at the Book-Entry
Transfer Facility pursuant to the procedures set forth under "-- Procedure for
Tendering PolyGram Shares -- For Holders of PolyGram U.S. Registered Shares --
Book-Entry Transfer," (ii) the Letter of Transmittal, properly completed and
duly executed, with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, and (iii) any other documents required by
the Letter of Transmittal.
On or prior to the Closing Date, Seagram will deliver, in trust, to the
U.S. Exchange Agent certificates representing that number of Seagram Shares to
which holders of PolyGram U.S. Registered Shares are entitled, as determined in
accordance with the terms of the Offer. See "-- Limited Availability of Share
Consideration." As soon as practicable after the Closing Date, each holder of
tendered PolyGram U.S. Registered Shares exchanged for Share Consideration
pursuant to the Offer will receive certificates representing the number of
Seagram Shares for which such Tendered Shares will have been exchanged as
determined in accordance with the terms of the Offer (or, in the case of
PolyGram Shares tendered by book-entry transfer into the U.S. Exchange Agent's
account at the Book-Entry Transfer Facility pursuant to the procedures set forth
under "-- Procedure for Tendering PolyGram Shares -- For Holders of PolyGram
U.S. Registered Shares -- Book-Entry Transfer," such Seagram Shares will be
credited to an account maintained by the Book-Entry Transfer Facility). If any
certificate for such Seagram Shares is to be issued in a name other than that in
which the certificate for tendered PolyGram U.S. Registered Shares surrendered
in exchange therefor is registered, it shall be a condition of such exchange
that the person requesting such exchange shall pay to the U.S. Exchange Agent
any transfer or other taxes required by reason of issuance of certificates for
such Seagram Shares in a name other than that of the registered holder of the
certificate surrendered, or shall establish to the reasonable satisfaction of
the U.S. Exchange Agent that such tax has been paid or is not applicable.
On or prior to the Closing Date, Seagram will deposit, in trust, with the
U.S. Exchange Agent cash in an amount equal to the Cash Consideration multiplied
by the number of tendered PolyGram U.S. Registered Shares to be exchanged for
Cash Consideration. As soon as practicable after the Closing Date, the U.S.
Exchange Agent shall distribute to each holder of tendered PolyGram U.S.
Registered Shares exchanged for Cash Consideration pursuant to the Offer, a bank
check for an amount equal to the Cash Consideration times the number of such
Tendered Shares so exchanged (plus any amounts in respect of fractional Seagram
Shares as described under "-- Offer Consideration"). If such check is to be
issued in a name other than that in which the certificate for tendered PolyGram
U.S. Registered Shares surrendered in exchange therefor is registered, it shall
be a condition of such exchange that the person requesting such exchange shall
pay to the U.S. Exchange Agent any transfer or other taxes required by reason of
issuance of such check for such Seagram Shares in a name other than the
registered holder of the certificate surrendered, or shall establish to the
reasonable satisfaction of the U.S. Exchange Agent that such tax has been paid
or is not applicable.
If any tendered PolyGram U.S. Registered Shares are not accepted pursuant
to the Offer for any reason or if share certificates are submitted for more
PolyGram U.S. Registered Shares than are tendered, share certificates evidencing
un-exchanged or un-tendered PolyGram U.S. Registered Shares will be returned,
without expense to the tendering PolyGram shareholder (or, in the case of
PolyGram U.S. Registered Shares tendered by book-entry transfer into the U.S.
Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the
procedures described under "-- Procedure for Tendering PolyGram Shares -- For
Holders of PolyGram U.S. Registered Shares -- Book-Entry Transfer," such
PolyGram U.S. Registered Shares will be credited to an account maintained at the
Book-Entry Transfer Facility), promptly following the expiration, termination or
withdrawal of the Offer.
DIVIDENDS AND DISTRIBUTIONS
If, on or after the date of the Offer Agreement, PolyGram should (i) split,
combine or otherwise change the PolyGram Shares or its capitalization, (ii)
issue or sell any additional securities of PolyGram or otherwise cause an
increase in the number of outstanding securities of PolyGram (other than the
issuance of PolyGram Shares in respect of PolyGram stock options outstanding on
the date of the Offer Agreement or issued in accordance therewith), or (iii)
acquire currently issued PolyGram Shares or otherwise cause a reduction in the
number of issued PolyGram Shares (except in the case of open market purchases of
PolyGram Shares by
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PolyGram in connection with the exercise of PolyGram stock options (which
PolyGram Shares are delivered by PolyGram to the option holder upon such
exercise)), then, without prejudice to Seagram's rights under "-- Terms of the
Offer" and "-- Certain Conditions of the Offer," Seagram may make such equitable
adjustment as is appropriate in the Offer Consideration and other terms of the
Offer including, without limitation, the amount and type of securities offered
to be purchased and the consideration to be paid therefor, subject to applicable
law.
If, on or after the date of the Offer Agreement, except as contemplated by
the provisions of the Offer Agreement described under "Description of
Transaction Agreements -- Offer Agreement -- Post-Closing Restructuring,"
PolyGram should declare or pay any cash or stock dividend on the PolyGram Shares
(except for a dividend payable to all PolyGram shareholders in an amount per
share equal to NLG 0.50 in respect of the period from January 1, 1998 until June
30, 1998, inclusive) or make any distribution (including the issuance of
additional PolyGram Shares pursuant to a stock dividend or stock split, the
issuance of other securities, the issuance of rights for the purchase of any
securities, or distribution of any cash dividend, regardless of amount) with
respect to the PolyGram Shares that is payable or distributable to shareholders
of record on a date prior to the transfer to the name of Seagram or its nominee
or transferee on PolyGram's stock transfer records of the PolyGram Shares
purchased pursuant to the Offer, then, without prejudice to Seagram's rights
under "-- Terms of the Offer" and "-- Certain Conditions of the Offer," (i) the
Offer Consideration per share payable by Seagram pursuant to the Offer may be
reduced by the amount of any such cash dividend or cash distribution and (ii)
any such non-cash dividend, distribution or right to be received by the
tendering PolyGram shareholders will be received and held by the tendering
PolyGram shareholders for the account of Seagram and will be required to be
promptly remitted and transferred by each such shareholder to the appropriate
Exchange Agent for the account of Seagram, accompanied by appropriate
documentation of transfer. Pending such remittance and subject to applicable
law, Seagram will be entitled to all rights and privileges as owner of any such
non-cash dividend, distribution or right and may withhold the entire purchase
price or deduct from the purchase price the amount or value thereof, as may be
appropriate and equitable under the circumstances.
Pursuant to the terms of the Offer Agreement, PolyGram is prohibited from
taking any of the actions described in the two preceding paragraphs, and nothing
herein shall constitute a waiver by Seagram of any of its rights under the Offer
Agreement or a limitation of remedies available to Seagram for any breach of the
Offer Agreement, including termination thereof.
CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, the Offer Agreement
provides that Seagram shall not be required to accept, purchase or, subject to
any applicable rules and regulations of the SEC, including Rule 14e-1(c) under
the U.S. Exchange Act and applicable Dutch Law, pay for any Tendered Shares and,
subject to the terms of the Offer Agreement, may postpone the acceptance of or,
subject to the restriction referred to above, payment for any Tendered Shares,
if (i) the Minimum Condition shall not have been satisfied or (ii) at any time
on or after the Commencement Date and prior to the Expiration Date, any of the
following events is occurring or has occurred:
(a) there shall have been entered and continuing any order,
preliminary or permanent injunction, decree, judgment or ruling in any
action or proceeding before any court or governmental, administrative or
regulatory authority or agency, domestic or foreign, or any statute, rule
or regulation enacted, entered, enforced, promulgated, amended or issued
that is applicable to Seagram, PolyGram or any subsidiary or affiliate of
Seagram or PolyGram or the Offer, by any legislative body, court,
government or governmental, administrative or regulatory authority or
agency that:
(1) makes illegal or otherwise directly or indirectly restrains or
prohibits or makes materially more costly the making of the Offer in
accordance with the terms of the Offer Agreement, the acceptance of, or
payment for, some of or all the PolyGram Shares by Seagram;
(2) prohibits the ownership or operation by PolyGram or any of its
subsidiaries, or Seagram or any of its subsidiaries, of all or any
material portion of the business or assets of PolyGram and its
subsidiaries, taken as a whole, or Seagram and its subsidiaries, taken
as a whole;
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(3) materially limits the ownership or operation by PolyGram or any
of its subsidiaries, or Seagram or any of its subsidiaries, of all or
any material portion of the business or assets of PolyGram and its
subsidiaries, taken as a whole, or Seagram and its subsidiaries, taken
as a whole (other than, in either case, assets or businesses of PolyGram
or its subsidiaries that are not material (measured in relation to the
combined assets or revenues of PolyGram and its subsidiaries, taken as a
whole)) or compels Seagram or any of its subsidiaries to dispose of or
hold separate all or any material portion of the businesses or assets of
PolyGram and its subsidiaries, taken as a whole, or Seagram and its
subsidiaries, taken as a whole, as a result of the purchase of Tendered
Shares in the Offer;
(4) imposes material limitations on the ability of Seagram to
acquire or hold or to exercise full rights of ownership of PolyGram
Shares, including the right to vote any PolyGram Shares acquired or
owned by Seagram on all matters properly presented to PolyGram
shareholders or the right to vote any shares of capital stock of any
subsidiary directly or indirectly owned by PolyGram; or
(5) requires divestiture by Seagram or any of its affiliates of any
PolyGram Shares;
except, in the respect of clauses (1) through (5) of this paragraph (a), as
a consequence of any adverse effects resulting from any actions required
under the Offer Agreement (subject to the limitations of the Offer
Agreement described in the sixth paragraph under "Description of
Transaction Agreements -- Offer Agreement -- Best Efforts") to obtain any
approval or authorization under applicable antitrust or competition laws
for the consummation of the Offer;
(b) there shall be instituted or pending any action or proceeding
before the U.S. federal courts by the U.S. government or any U.S.
governmental authority or agency:
(1) challenging or seeking to make illegal or otherwise directly or
indirectly to restrain or prohibit the making of the Offer, the
acceptance of or payment for some of or all the PolyGram Shares by
Seagram or the consummation of the Offer;
(2) seeking to restrain or prohibit Seagram's ownership or
operation (or that of its respective subsidiaries or affiliates) of all
or any material portion of the business or assets of PolyGram and its
subsidiaries, taken as a whole, or of Seagram and its subsidiaries,
taken as a whole, or to compel Seagram or any of its subsidiaries or
affiliates to dispose of or hold separate all or any material portion of
the business or assets of PolyGram and its subsidiaries, taken as a
whole, or of Seagram and its subsidiaries, taken as a whole;
(3) seeking to impose or confirm material limitations on the
ability of Seagram or any of its subsidiaries or affiliates effectively
to exercise full rights of ownership of the PolyGram Shares, including
the PolyGram Shares acquired or owned by Seagram or any of its
subsidiaries or affiliates on all matters properly presented to PolyGram
shareholders; or
(4) seeking to require divestiture by Seagram or any of its
subsidiaries or affiliates of such PolyGram Shares;
except that this paragraph (b) shall not be applicable to (x) any such
action or proceeding in which a motion for a temporary restraining order, a
preliminary injunction or a permanent injunction shall have been denied or
shall have expired, or a judicial order granting any such temporary
restraining order, preliminary injunction or permanent injunction shall
have been reversed on appeal and not reinstated, (y) any such action or
proceeding in which the U.S. Department of Justice or the U.S. Federal
Trade Commission (the "FTC") does not file within ten business days after
commencement of such action a motion seeking injunctive relief of the type
referred to in clauses (1) through (4) of this paragraph (b) or (z) an
action filed with the consent of Seagram;
(c) there shall have occurred and be continuing:
(1) any general suspension of trading in, or limitation on prices
(other than suspensions or limitations triggered on the NYSE, the AEX or
the LSE by price fluctuations on a trading day) for, securities on any
national securities exchange or in the over-the-counter market in the
United States;
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(2) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or the Netherlands;
(3) any material limitation (whether or not mandatory) by any
government or governmental, administrative or regulatory authority or
agency, domestic, foreign or supranational, on the extension of credit
by banks or other lending institutions;
(4) a commencement of a war or armed hostilities or other national
calamity directly or indirectly involving the United States or the
Netherlands; or
(5) in the case of any of the foregoing existing at the time of
commencement of the Offer, a material acceleration or worsening thereof;
(d) any waiting periods under the HSR Act applicable to the purchase
of PolyGram Shares pursuant to the Offer, and any applicable mandatory
waiting periods under any applicable non-U.S. statutes or regulations,
shall not have expired or been terminated;
(e) the parties shall have failed to receive in respect of the Offer
and any matters arising therefrom: confirmation by way of a decision of the
European Commission under Article 6(1)(b) or Article 8(2) of the Merger
Regulation that the transactions contemplated by the Offer Agreement and
any matters arising therefrom are compatible with the common market;
(f) a stop order suspending the effectiveness of the Registration
Statement shall have been issued by the SEC or proceedings for that purpose
shall have been initiated or threatened by the SEC;
(g) the Commissie voor Fusieaangelegenheden under the Dutch Merger
Code (the "Dutch Merger Committee") shall have, prior to the date of
honoring the Offer, issued a public censure concerning infringement of any
of the rules contained in Chapter I of the Dutch Merger Code, provided,
that such censure was not caused by any action or failure to act by
Seagram; or
(h) prior to the Closing Date, facts or circumstances shall have
arisen which Seagram was not aware of at the time of making the Offer and
which in the opinion of the AEX justify withdrawal of the Offer; provided,
however, that such facts or circumstances shall be limited to (1) the
failure of any of the representations or warranties of PolyGram or Philips
set forth in the Offer Agreement that are qualified by reference to a
Material Adverse Effect to be true and correct, or the failure of any such
representation or warranty that is not so qualified to be true and correct
in any respect which would be reasonably expected to result in a Material
Adverse Effect, in each case as if such representation or warranty were
made at the time the AEX comes to the conclusion that withdrawal of the
Offer is justified (except to the extent any such representation or
warranty speaks to an earlier date), (2) the failure of PolyGram or Philips
to perform in any material respect any obligation or to comply in any
material respect with any agreement or covenant of Philips or PolyGram to
be performed or complied with by it under the Offer Agreement or (3) any
other fact or circumstance which would be reasonably expected to result in
a Material Adverse Effect; provided, further, that no adverse effects
resulting from any actions required under the Offer Agreement (subject to
the limitations of the Offer Agreement described in the sixth paragraph
under "Description of Transaction Agreements -- Offer Agreement -- Best
Efforts") to obtain any approval or authorization under applicable
antitrust or competition laws for the consummation of the Offer shall be
considered in connection with the evaluation of such facts and
circumstances.
To the maximum extent permitted by Dutch Law, Seagram expressly reserves
the right, in its sole discretion, to waive any of the foregoing conditions
(subject to the limitations of the Offer Agreement described in the second
paragraph under "Description of Transaction Agreements -- Offer Agreement --
Effect of Termination") and make any changes in the terms and conditions of the
Offer (or to extend the Offer beyond a scheduled Expiration Date if any Offer
Conditions shall not be satisfied); provided, that, (i) Seagram may not make any
change to any of the foregoing conditions unless Seagram terminates the Offer
and commences a new offer, if so required by Dutch Law; and (ii) unless
previously approved by PolyGram and Philips in writing, Seagram may not make any
change to the terms and conditions of the Offer that increases the Minimum
Condition, decreases the price per share payable in the Offer, changes the form
of consideration payable in the Offer (other than by adding consideration),
reduces the maximum number of
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PolyGram Shares to be purchased in the Offer, or amends the terms or Offer
Conditions or imposes conditions or terms to the Offer in addition to those set
forth herein which, in either case, are adverse to PolyGram shareholders or make
the likelihood of the Offer succeeding more remote in any material respect.
Under Dutch Law, any change in the terms of the Offer following
commencement thereof could require the commencement of a new offer and the
termination of the original offer in accordance with its terms. In the event of
any such termination, Seagram would return all Tendered Shares to tendering
PolyGram shareholders. PolyGram shareholders would have the opportunity to
tender their shares in any new offer. With respect to immaterial changes in the
terms of the Offer, however, the Dutch Merger Committee could grant an exemption
from the requirement to commence a new offer. Any such exemption would likely be
conditioned on Seagram (i) publicly disclosing the receipt of the exemption and
the nature of the change in the Offer and (ii) providing PolyGram shareholders
that tendered PolyGram Shares prior to such change the right to withdraw such
shares. Seagram is not aware of any provision of Dutch Law that addresses the
types of changes that would constitute an "immaterial change" for these
purposes, although Seagram has been advised that a reduction of the Offer
Consideration or a change to material Offer Conditions would not constitute an
"immaterial change." Seagram has also been advised that the Dutch Merger
Committee has granted exemptions in cases where the offer consideration has been
increased.
"Material Adverse Effect" means any effect that, individually or in the
aggregate with all other adverse effects, is materially adverse to the condition
(financial or otherwise), business, assets or results of operations of PolyGram
and its subsidiaries taken as a whole, other than any effect resulting from (i)
changes in general economic conditions, (ii) the announcement and performance of
the Offer Agreement and the transactions contemplated thereby and compliance
with the covenants set forth in the Offer Agreement, (iii) changes or
developments in the music and film industry generally and (iv) any actions
required under the Offer Agreement (subject to the provisions of the Offer
Agreement described in the sixth paragraph under "Description of Transaction
Agreements -- Offer Agreement -- Best Efforts") to obtain any approval or
authorization under applicable antitrust or competition laws for the
consummation of the Offer.
SOURCE AND AMOUNT OF FUNDS
Seagram estimates that the aggregate amount of funds required by it to
acquire all issued PolyGram Shares pursuant to the Offer, to refinance certain
of PolyGram's existing indebtedness and to pay fees and expenses relating to the
Offer will be approximately $8.9 billion. Pursuant to the Offer Agreement,
Seagram's obligation to consummate the Offer is not conditioned upon Seagram's
obtaining any financing therefor.
The Cash Consideration, the refinancing of certain of PolyGram's existing
indebtedness and the fees and expenses relating to the Offer will be partially
financed through Seagram's recent sale of Tropicana to Pepsi, the after-tax
proceeds of which are estimated to be approximately $3 billion. See "The Seagram
Company Ltd. -- Recent Developments." Seagram expects to obtain the remaining
funds for the Cash Consideration, the refinancing of certain of PolyGram's
existing indebtedness and the fees and expenses relating to the Offer from debt
securities, the terms of which have yet to be determined, to be issued by JES
and expected to be guaranteed by Seagram, and/or commercial bank borrowings
pursuant to the credit facility described below and/or the issuance of
commercial paper, the terms of which have yet to be determined.
Any indebtedness incurred in connection with the Offer is expected to be
repaid from funds internally generated by Seagram and its subsidiaries
(including, if the Offer is consummated, funds generated by PolyGram and its
subsidiaries after Closing), through additional borrowings and from the proceeds
of the sale of certain of the assets comprising PolyGram's film division (see
"PolyGram N.V. -- Recent Developments" and "Description of Transaction
Agreements -- Offer Agreement -- Sale of Film Division") and/or the sale of
other assets or from a combination of such sources. No final decisions have been
made concerning the sources of the funds to be used to finance the Offer or the
method by which any such funds will be repaid. Such decisions when made will be
based on Seagram's review of the advisability of particular actions, as well as
on prevailing interest rates and financial and other economic conditions.
On October 21, 1998, JES entered into an unsecured 364-Day Competitive
Advance and Revolving Credit Facility of up to US $6.5 billion (the "Credit
Facility") with a syndicate of financial institutions (the "Lenders") led by The
Chase Manhattan Bank (as Administrative Agent and Arranger), Citibank, N.A. (as
Syndication Agent) and Bank of America National Trust & Savings Association and
Bank of Montreal (as
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Co-Documentation Agents) (collectively, the "Agents"). Amounts outstanding under
the Credit Facility will be guaranteed by Seagram and, for so long as it
guarantees amounts outstanding under the Existing Credit Facilities described
below, by J.E. Seagram Corp., a Delaware corporation and an indirect parent
company of JES. Borrowings under the Credit Facility may be used for general
corporate purposes of Seagram and its subsidiaries, including for the financing
of the Offer and/or the backup of commercial paper (including any commercial
paper issued to provide initial financing for the Offer).
The Credit Facility will expire on October 20, 1999 (subject to extension
for additional 364-day periods, if the Lenders thereunder so agree) and amounts
outstanding thereunder will mature at such expiry; however, at the election of
JES, amounts outstanding as Revolving Credit Loans may mature two years after
such expiry. Borrowings under the Credit Facility may be made by way of (i)
revolving credit loans ("Revolving Credit Loans") from all Lenders ratably in
accordance with their respective commitments or (ii) competitive bid loans ("Bid
Loans") made by those Lenders who elect to submit bids from time to time.
Revolving Credit Loans will bear interest at a rate per annum equal to, at
the option of JES, (i) the London Interbank Offered Rate ("LIBOR") for
eurodollar deposits for (as selected by JES) one, two, three, six or, subject to
availability, nine or 12 months plus the Applicable Rate described below or
(ii) the ABR (defined as the greater of (x) Chase's Prime Rate and (y) the
Federal Funds Effective Rate plus 0.5% per annum). The "Applicable Rate"
applicable to LIBOR-based Revolving Credit Loans will vary from time to time
from 23 to 55 basis points, depending on Seagram's then applicable long-term
senior unsecured debt rating (the "Debt Rating"); provided that, at any time
when more than 50% of the Credit Facility is drawn, the Applicable Rate in
effect for Revolving Credit Loans will be increased by 7.5 basis points per
annum on the full amount outstanding. Bid Loans will bear interest, at the
option of JES, at either a fixed rate or LIBOR plus a margin, with such fixed
rate or such margin (as applicable) to be determined through a competitive bid
process among those Lenders which elect to submit bids from time to time to
provide such loans. Interest generally will be payable quarterly.
The Credit Facility provides for the payment to each Lender of a facility
fee on the aggregate amount of such Lender's commitments under the Credit
Facility (whether drawn or undrawn) or, after any Lender's commitment has
expired, on the outstanding amount of the Revolving Credit Loans of such Lender.
The rate used to determine the facility fee will vary from time to time from 7
to 20 basis points, depending on Seagram's then applicable Debt Rating. The
facility fee is be payable quarterly, in arrears.
The Credit Facility contains certain customary affirmative covenants,
negative covenants and events of default applicable to Seagram and its
subsidiaries, including, without limitation, limitations on liens, sale and
lease-back transactions, transactions with affiliates, restrictive agreements
and fundamental changes (including certain mergers, sales of substantially all
assets and certain liquidations). The Credit Facility also contains financial
covenants which require that Seagram and its consolidated subsidiaries maintain
(i) a maximum ratio of total debt to EBITDA and (ii) a minimum ratio of EBITDA
to interest expense.
The obligations of the Lenders to make their initial loans under the Credit
Facility are subject to the satisfaction or waiver of customary conditions,
including, without limitation, the consummation of the Offer substantially upon
the terms described in this Offering Circular/Prospectus. All borrowings under
the Credit Facility are subject to the satisfaction or waiver of certain
conditions, including, without limitation, (i) the accuracy of representations
and warranties and (ii) the absence of any default under the Credit Facility.
In connection with the Offer, the Credit Facility requires that Seagram
amend and restate its existing US $1.1 billion credit facility (the "Existing
Seagram Facility") and JES has amended and restated its existing US $2.0 billion
credit facility (the "Existing JES Facility" and, together with the Existing
Seagram Facility, the "Existing Credit Facilities"), in order to conform the
representations, warranties, covenants, events of default, financial terms and
certain other terms thereof to those of the Credit Facility. The Existing JES
Facility has been so amended and restated and such amendment and restatement of
the Existing Seagram Facility is anticipated to be consummated shortly. Such
amendment and restatement of the Existing Seagram Facility will require the
consent of the lenders holding the majority of the commitments thereunder.
Pursuant to the Credit Facility, JES has agreed to pay certain fees to the
Agents, the Lenders and certain of their affiliates, to reimburse them for
certain expenses and to provide certain indemnities to them, as is customary for
commitments of the type described herein.
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The foregoing description summarizes certain provisions of the Credit
Facility, a copy of which has been filed as an exhibit to the Registration
Statement and the Schedule 14D-1 and is incorporated herein by reference. Such
description does not purport to be complete and is qualified in its entirety by
reference to the text of the Credit Facility.
FEES AND EXPENSES OF THE OFFER
Morgan Stanley & Co. Incorporated ("Morgan Stanley Dean Witter") and Bear,
Stearns & Co. Inc. ("Bear Stearns") are each acting as Seagram's financial
advisor and as Dealer Manager in connection with the Offer. In connection with
the services rendered by Morgan Stanley Dean Witter, Seagram has paid to Morgan
Stanley Dean Witter a fee (the "Offer Fee") of $2,500,000, which became payable
upon the announcement of the Offer. Seagram has also agreed to pay to Morgan
Stanley Dean Witter a transaction fee of $16,000,000, which becomes payable upon
the acquisition by Seagram of more than 50% of the PolyGram Shares and against
which the Offer Fee, to the extent previously paid, will be credited. If no such
acquisition is consummated, then Seagram will pay to Morgan Stanley Dean Witter
an advisory fee (based on the time and efforts expended by Morgan Stanley Dean
Witter during its engagement) estimated to be between $500,000 and $2,500,000.
In addition, Seagram has agreed to reimburse Morgan Stanley Dean Witter for its
out-of-pocket expenses (including, without limitation, reasonable fees of
outside counsel and other professional advisors engaged with Seagram's consent)
incurred by it, and Seagram has agreed to indemnify and hold harmless Morgan
Stanley Dean Witter against any losses, claims, damages or liabilities related
to, arising out of or in connection with the engagement, including certain
liabilities arising under the federal securities laws.
In connection with the services rendered by Bear Stearns, Seagram has paid
to Bear Stearns $1,500,000 in fees. Seagram will pay Bear Stearns a transaction
fee of $3,000,000, which becomes payable if (i) PolyGram is acquired by, or
combined with, Seagram in a merger, consolidation or similar transaction or (ii)
Seagram acquires any assets of PolyGram or any PolyGram Shares, in either case,
at any time during the term of Bear Stearns' engagement or within two years
after the date of termination of the Bear Stearns engagement letter (or if an
acquisition of PolyGram is consummated with respect to which an agreement by
Seagram was executed within two years after such date of termination) and
against which the fees previously paid to Bear Stearns will be credited. In
addition, Seagram has agreed to reimburse Bear Stearns for its reasonable
out-of-pocket expenses (including, without limitation, fees of outside counsel
and other consultants and advisors retained by Bear Stearns) incurred by it, and
Seagram has agreed to indemnify and hold harmless Bear Stearns against any
losses, claims, damages or liabilities related to, arising out of or in
connection with the engagement, including certain liabilities arising under the
federal securities laws.
Seagram has retained D.F. King & Co., Inc. to act as the Information Agent,
MeesPierson N.V. to act as the Dutch Exchange Agent and Citibank, N.A. to act as
the U.S. Exchange Agent in connection with the Offer. The Information Agent may
contact PolyGram shareholders by mail, telephone, telex, telegraph and personal
interviews and may request brokers, dealers and other nominee shareholders to
forward materials relating to the Offer to beneficial owners. The Information
Agent and the Exchange Agents each will receive reasonable and customary
compensation for their respective services, will be reimbursed for certain
reasonable out-of-pocket expenses and will be indemnified against certain
liabilities in connection therewith, including certain liabilities under the
federal securities laws.
Except as set forth above, Seagram will not pay any fees or commissions to
any broker or dealer or any other person for soliciting tenders of PolyGram
Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust
companies will, upon request, be reimbursed by Seagram for reasonable and
necessary costs and expenses incurred by them in forwarding materials to their
customers.
CERTAIN REGULATORY APPROVALS AND LEGAL MATTERS
GENERAL
Except as set forth below, Seagram is not aware of any governmental
licenses or other regulatory permits that are material to the business of
PolyGram and its subsidiaries, taken as a whole, that would be adversely
affected by Seagram's acquisition of PolyGram Shares (and the indirect
acquisition of the stock of PolyGram's subsidiaries) as contemplated herein, or
of any filings, approvals or other actions by or with any U.S. (federal or
state), Dutch, Canadian or other non-U.S., or supranational governmental
authority or
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administrative or regulatory agency that would be required prior to the
acquisition of PolyGram Shares (or the indirect acquisition of the stock of
PolyGram's subsidiaries) by Seagram pursuant to the Offer as contemplated
herein. Should any such other approval or action be required, it is Seagram's
present intention to seek such approval or take such action. Seagram does not
presently intend, however, to delay the Closing pending the receipt of any such
approval or the taking of any such action (subject to Seagram's right to decline
to acquire PolyGram Shares if any of the conditions described under "-- Certain
Conditions of the Offer" shall not have been satisfied). There can be no
assurance that any such approval or other action, if needed, would be obtained
without substantial conditions or that adverse consequences might not result to
the business of Seagram or PolyGram or that certain parts of the businesses of
Seagram or PolyGram might not have to be disposed of or held separate or other
substantial conditions complied with in order to obtain such approval or other
action or in the event that such approval was not obtained or such other action
was not taken.
Subject to the terms and conditions of the Offer Agreement, each of
Seagram, Philips and PolyGram has agreed to use its 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 the Offer Agreement and applicable laws and
regulations to obtain all approvals and authorizations under applicable
antitrust and competition laws, including proffering PolyGram's and Seagram's
willingness to accept an order providing for the divestiture by Seagram of such
of PolyGram's assets and businesses (or, in lieu thereof, approximately
equivalent assets and businesses of Seagram) as are necessary to permit Seagram
to consummate the Offer. Notwithstanding the foregoing, Seagram shall not be
required to take, or agree to take, any action, or permit Philips or PolyGram to
take, or agree to take, any action, whether as a condition to obtaining any
approval from a governmental entity or any other person or for any other reason,
if such action is reasonably likely to be materially burdensome to Universal and
its subsidiaries and PolyGram and its subsidiaries, taken as a whole, or to have
a material adverse effect on the strategic and financial benefits of the
transactions contemplated by the Offer Agreement. See "Description of
Transaction Agreements -- Offer Agreement -- Best Efforts."
U.S. ANTITRUST
Under the HSR Act and the rules that have been promulgated thereunder by
the FTC, certain acquisition transactions may not be consummated unless certain
information has been furnished to the Antitrust Division of the United States
Department of Justice (the "Antitrust Division") and the FTC and certain waiting
period requirements have been satisfied. The acquisition of PolyGram Shares
pursuant to the Offer is subject to such requirements.
On June 8, 1998, each of Seagram and PolyGram filed with the FTC and the
Antitrust Division a Premerger Notification and Report Form in connection with
the acquisition of PolyGram Shares pursuant to the Offer. Under the provisions
of the HSR Act applicable to the Offer, the acquisition of PolyGram Shares
pursuant to the Offer was not permitted to be consummated until the expiration
of a 30-calendar day waiting period following such filing. The waiting period
requirement under the HSR Act expired on July 8, 1998.
EU MERGER REGULATION
Seagram and PolyGram each conduct substantial operations within the
European Economic Area (the "EEA") and certain of the individual member states
of the EEA. The Merger Regulation and Article 57 of the EEA Agreement require
that concentrations with a "Community dimension" be notified to the European
Commission for review and approval for compatibility with the common market
prior to being put into effect. When an offer falls within the Merger
Regulation, the European Commission, as opposed to individual member states, has
exclusive jurisdiction to review that offer, subject to certain exceptions.
Seagram filed the required notification on August 18, 1998. On September
21, 1998, the European Commission, pursuant to the Merger Regulation, issued its
decision that it would not oppose Seagram's acquisition of PolyGram and that
such transaction is compatible with the common market and the EEA Agreement.
INVESTMENT CANADA ACT; CANADIAN PRE-MERGER NOTIFICATION REQUIREMENTS
PolyGram owns certain businesses and assets in Canada. Under the Investment
Canada Act (the "ICA"), the acquisition of control of certain Canadian
businesses by non-Canadians is subject to review by
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the Investment Review Division of Industry Canada, a Canadian governmental
department ("Investment Canada"). Seagram has previously been considered as
Canadian under the ICA and, in connection with the Offer, has provided
Investment Canada with information relating to its status under the ICA, as well
as the Offer and PolyGram's Canadian business. In the event that Seagram
continues to be considered as Canadian pursuant to the ICA, it will not be
necessary to make any filings or obtain any approvals thereunder with respect to
the Offer. However, in the event that it is determined that Seagram is a
non-Canadian, the ICA requires that the proposed acquisition of control of
PolyGram's Canadian business be reviewed and approved by the Minister (as
defined in the ICA) as an investment that is "likely to be of net benefit to
Canada." The application for review may be filed at any time prior to Closing or
within 30 days after Closing. If it is deemed that Seagram is a non-Canadian and
that the proposed acquisition of PolyGram's Canadian business is accordingly
subject to the review procedures set forth in the ICA, Seagram will either file
the requisite notice seeking the approval of the Minister in respect of the
acquisition of PolyGram's Canadian business prior to Closing or, subsequent
thereto, file an application thereunder. Upon receipt of an application
initiating such a review, the Minister has 45 days (subject to a possible
extension) to advise the applicant as to whether or not the Minister is
satisfied that the investment is likely to be of net benefit to Canada. In the
event that the Minister does not render an affirmative decision, the Minister
may issue a notice, the effect of which would be to prohibit a prospective
acquisition of control of PolyGram's Canadian business by Seagram or, if in the
event that the acquisition had previously been effected, to compel divestiture
thereof.
Based upon an examination of publicly available information relating to the
business segments in which Seagram and its subsidiaries and PolyGram and its
subsidiaries are engaged, Seagram believes that completion of the Offer will not
be prohibited and that it is unlikely that divestitures will be required in
connection with the Offer under the ICA, although certain undertakings relating
to business conduct and operations may be mandated thereunder. In the event that
divestitures would be required, Seagram believes that such possible divestitures
would not have a material adverse effect on the business or financial condition
of PolyGram and its subsidiaries taken as a whole. Nevertheless, there can be no
assurance that any required approvals under the ICA will be obtained. See
"-- Certain Conditions of the Offer."
Canada's Competition Act (the "Competition Act") requires pre-notification
to the Director of Investigation and Research appointed under the Competition
Act (the "Canadian Director") of significant corporate transactions, such as the
acquisition of a large percentage of the stock of a public company which has
Canadian operations, or a merger or consolidation involving such an entity.
Pre-notification is generally required with respect to transactions in which the
parties to the transactions and their affiliates have assets in Canada, or
annual gross revenues from sales in, from or into Canada, in excess of Cdn. $400
million and which involve the direct or indirect acquisition of an operating
business, the value of the assets of which, or the gross revenues from sales in
or from Canada generated from these assets, exceed Cdn. $35 million per year.
For transactions subject to the notification requirements, notice must be given
seven or 21 days prior to the completion of the transaction depending on the
information provided to the Canadian Director. After the applicable waiting
period expires, the transaction may be completed. If the Canadian Director
determines that the proposed transaction prevents or lessens, or is reasonably
likely to prevent or lessen, competition substantially in a definable market,
the Canadian Director may apply to the Competition Tribunal, a special purpose
Canadian tribunal, to, among other things, prohibit the completion of the
transaction or require the disposition of the Canadian assets acquired in such
transaction. On July 23, 1998, Seagram filed its required notice with respect to
its proposed acquisition with the Canadian Director and the applicable waiting
period expired on July 31, 1998. On September 16, 1998, the Canadian Director
advised that there are not sufficient grounds to initiate proceedings before the
Competition Tribunal with respect to the proposed acquisition.
DUTCH MERGER COMMITTEE; DUTCH SECURITIES BOARD
Prior to the Commencement Date, (i) in accordance with Article 8 of the
Dutch Merger Code, each of Seagram and PolyGram submitted to the Dutch Merger
Committee, in each case solely on its own behalf, all information that Article 8
requires it to submit to the Dutch Merger Committee and (ii) Seagram submitted
this Offering Circular/Prospectus for review to Amsterdam Exchanges and the
Dutch Merger Committee.
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On September 17, 1998, the Dutch Securities Board granted an exemption from
Section 3, paragraph 1 of the Act on the Supervision of the Securities Trade
1995, thereby allowing Seagram to offer the Share Consideration in the
Netherlands.
U.S. STATE TAKEOVER LAWS
A number of states of the United States have adopted takeover laws and
regulations which purport, to varying degrees, to be applicable to attempts to
acquire securities of corporations which are incorporated in such states or
which have, or whose business operations have, substantial economic effects in
such states, or which have substantial assets, security holders, principal
executive offices or principal places of business therein. PolyGram, through its
subsidiaries, conducts business in a number of such states. Seagram does not
believe that any of these statutes will, by their terms, apply to the Offer, and
has not attempted to comply with any state takeover statutes in connection with
the Offer. Seagram reserves the right to challenge the validity or applicability
of any state law allegedly applicable to the Offer and nothing in this Offering
Circular/Prospectus nor any action taken in connection herewith is intended as a
waiver of that right. In the event it is asserted that one or more state
takeover statutes is applicable to the Offer, and an appropriate court does not
determine that it is inapplicable or invalid as applied to the Offer, Seagram
may be required to file certain information with, or receive approvals from, the
relevant state authorities, and Seagram may be unable to accept or pay for
Tendered Shares or be delayed in continuing or consummating the Offer. In such
case, Seagram may not be obligated to accept, or pay for, any Tendered Shares
under the terms of the Offer Agreement. See "-- Certain Conditions of the
Offer."
RULE 13e-3 TRANSACTIONS
The SEC has adopted Rule 13e-3 under the U.S. Exchange Act which is
applicable to certain "going private" transactions. Seagram believes that Rule
13e-3 will not be applicable to a compulsory acquisition or any open-market
purchases subsequent to the consummation of the Offer, each as described under
"-- Purpose of the Offer; Plans for PolyGram," if, at the time of such action,
PolyGram is no longer registered under the U.S. Exchange Act or the
consideration paid for any PolyGram Shares pursuant to such action is not less
than that paid pursuant to the Offer. See "-- Possible Effects of the Offer on
the Market for PolyGram Shares." If applicable, Rule 13e-3 would require, among
other things, that certain financial information concerning PolyGram and certain
information relating to the fairness of the Compulsory Acquisition and the
consideration offered to minority shareholders be filed with the SEC and
distributed to minority shareholders prior to the consummation of any such
transaction.
OTHER FOREIGN APPROVALS
PolyGram and its subsidiaries own property and conduct business in a number
of other foreign countries and jurisdictions. In connection with the acquisition
of the PolyGram Shares pursuant to the Offer, the laws of certain of those
foreign countries and jurisdictions may require the filing of information with,
or the obtaining of the approval of, governmental authorities in such countries
and jurisdictions. The governments in such countries and jurisdictions might
attempt to impose additional conditions on PolyGram's operations conducted in
such countries and jurisdictions as a result of the acquisition of the PolyGram
Shares pursuant to the Offer. There can be no assurance that Seagram will be
able to cause PolyGram or its subsidiaries to satisfy or comply with such laws
or that compliance or non-compliance will not have adverse consequences for
PolyGram or any subsidiary after purchase of the PolyGram Shares pursuant to the
Offer.
FEDERAL RESERVE BOARD REGULATIONS
Federal Reserve Board Regulations G, T, U and X (the "Margin Credit
Regulations") restrict the extension or maintenance of credit for the purpose of
buying or carrying margin stock, including the PolyGram Shares, if the credit is
secured directly or indirectly by margin stock. Such secured credit may not be
extended or maintained in an amount that exceeds the maximum loan value of the
margin stock. Under the Margin Credit Regulations the maximum loan value of the
PolyGram Shares is 50% of their current market value. Seagram believes that the
financing of the Offer will comply with the Margin Credit Regulations.
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INTERESTS OF CERTAIN PERSONS IN THE OFFER
In considering the recommendations by the PolyGram Board of Management and
the PolyGram Supervisory Board with respect to the Offer, PolyGram shareholders
should be aware that certain members of the PolyGram Board of Management and the
PolyGram Supervisory Board, as well as certain other members of PolyGram's
management, may have certain interests that are different from, or in addition
to, the interests of PolyGram shareholders as such. The Board of Management and
Supervisory Board of PolyGram each recognized such interests and determined that
such interests neither supported nor detracted from the fairness of the Offer to
PolyGram shareholders.
MATTERS RELATING TO PHILIPS
As a result of its 75% interest in PolyGram, Philips has the ability to
control PolyGram, including the ability to replace the PolyGram Board of
Management and the PolyGram Supervisory Board. Three of the four members of the
Supervisory Board of PolyGram are current or former executive officers of
Philips, including Cornelis Boonstra, Chairman of the Supervisory Board of
PolyGram and Chairman of the Board of Management and Chief Executive Officer of
Philips. Philips is a party to the Offer Agreement, as well as the other
Transaction Agreements. Philips has certain rights and obligations under these
agreements in addition to the right to receive the Offer Consideration with
respect to its Tendered Shares. See "Description of Transaction Agreements." The
two current Philips executives who are members of the PolyGram Supervisory Board
abstained from such Board's vote on matters relating to the Offer and the Offer
Agreement.
Subject to the terms of the Tender Agreement, Philips has agreed to tender
all of its PolyGram Shares pursuant to the Offer and to elect to receive Share
Consideration in respect of all its PolyGram Shares. Other PolyGram shareholders
have the right to receive Share Consideration in the Offer on a pro rata basis.
See "Description of Transaction Agreements -- Tender Agreement." In connection
with the Offer, Seagram and Philips have entered into the Stockholders Agreement
pursuant to which, among other things, Seagram (i) has agreed to appoint the
Chief Executive Officer of Philips to Seagram's Board of Directors effective as
of the Closing and (ii) has granted Philips certain registration rights with
respect to the Seagram Shares to be received by Philips pursuant to the Offer.
See "Description of Transaction Agreements -- Stockholders Agreement." Seagram
and Philips have also entered into the Voting Agreement regarding Philips'
voting of its PolyGram Shares in certain circumstances prior to consummation of
the Offer. See "Description of Transaction Agreements -- Voting Agreement."
Pursuant to the Offer Agreement, immediately prior to the Closing, Philips
will contribute $90 million in cash to PolyGram (after giving effect to any
applicable taxes payable by PolyGram arising out of such contribution) unless
Seagram, Philips and PolyGram mutually agree to an alternative arrangement.
Philips will not be entitled to any capital stock of PolyGram or any other
consideration from PolyGram in exchange for such contribution.
Philips and PolyGram and their respective affiliates are party to various
intercompany agreements, contracts and arrangements, relating to, among other
things, tax sharing, intellectual property and employee benefits. Pursuant to
the Offer Agreement, certain of these arrangements will terminate as of the
Closing Date with no further obligations or liabilities on the part of PolyGram
or Philips or any of their respective subsidiaries thereunder (other than the
obligation to pay for goods, services or other assets on an arm's length basis
provided thereunder prior to the Closing), while other agreements will remain in
effect subsequent to the Closing Date as contemplated by the Offer Agreement.
Except with respect to those agreements between Philips and PolyGram and their
respective affiliates that will remain in effect subsequent to the Closing Date,
and subject to Seagram's acceptance of Tendered Shares pursuant to the Offer,
each of Philips and PolyGram has agreed to release, discharge and indemnify the
other and the other's subsidiaries and their successors and assigns with respect
to any claims by either of Philips or PolyGram against the other arising during,
or in respect of, the period on or before the Closing Date. See "Description of
Transaction Agreements -- Offer Agreement -- Termination of Intercompany
Agreements." Pursuant to the Offer Agreement, Philips has agreed to grant to
PolyGram the right to use following the Closing Date certain intellectual
property owned by Philips. See "Description of Transaction Agreements -- Offer
Agreement -- License Agreement."
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SEVERANCE AGREEMENT
Immediately following the execution and delivery of the Offer Agreement,
PolyGram and certain of its subsidiaries, Seagram, Philips and Alain Levy,
former President and Chief Executive Officer of PolyGram, entered into an
agreement dated June 21, 1998 (the "Severance Agreement") pursuant to which Mr.
Levy resigned from all positions held by him at PolyGram, such subsidiaries and
Philips as of such date, including as a member of PolyGram's Board of
Management. Under the Severance Agreement, PolyGram and its subsidiaries agreed
(i) to pay Mr. Levy all outstanding salary and fees due to him under his
employment contracts until June 30, 1998 and reimburse him for certain expenses
under such contracts, (ii) to pay Mr. Levy in a lump sum the remaining base
salary and other fees through the remaining term of such contracts, and (iii) to
grant Mr. Levy, in lieu of remaining grants of options provided for under his
employment contracts, fully exercisable stock options for 200,000 PolyGram
Shares at an exercise price of NLG 65.60 and for 100,000 PolyGram Shares at an
exercise price equal to NLG 107.80, each of which is exercisable until the later
of (a) 90 days following June 21, 1998 (the "Date of Termination") and (b) the
close of business on the Closing Date or the close of business on the 20th day
following the date the Offer Agreement has been terminated. In addition,
unvested stock options held by Mr. Levy became vested and shall remain
exercisable until the later of the dates described in the preceding sentence.
The Severance Agreement also provides that, to the extent permitted by the
terms thereof, Mr. Levy and any family members will continue to participate in
and receive the benefits of certain insurance, pension, social security and
profit sharing programs, and Mr. Levy will be entitled to certain fringe
benefits, through December 31, 1999. In addition, any stock appreciation rights,
warrants, bonus units or comparable rights held by Mr. Levy as of the Date of
Termination, any profit sharing benefits and any units previously granted to Mr.
Levy pursuant to any plan involving equity in PolyGram or gain or compensation
to Mr. Levy based upon the PolyGram Shares automatically and fully vested as of
the Date of Termination and will remain exercisable for 90 days thereafter.
Subject to the approval of the Pension Schemes Office of the U.K. Inland
Revenue, the defined benefit pension from the Philips Pension Fund (the "Fund")
to which Mr. Levy is entitled will be calculated as if he had continued in
pensionable service through December 31, 1999 and had received the compensation
provided in his employment contracts. If the Fund is unable to pay the full
pension, PolyGram and a subsidiary will pay any such shortfall. PolyGram,
Seagram and Philips have entered into mutual releases with Mr. Levy pursuant to
the Severance Agreement.
POLYGRAM STOCK OPTIONS
As of September 30, 1998, the members of PolyGram's Board of Management and
Supervisory Board held options to purchase an aggregate of 367,000 PolyGram
Shares, of which options to purchase 112,000 PolyGram Shares were exercisable,
and the remainder of which will, pursuant to the Offer Agreement, become fully
vested and exercisable on the Closing Date. The Offer Agreement provides that
each PolyGram stock option granted by PolyGram prior to the date of the Offer
Agreement and that remains outstanding on the Closing Date will be converted, on
the Closing Date, upon the holder's election (on an option by option basis),
into either (i) an option to acquire a number of Seagram Shares determined in
accordance with a formula set forth in the Offer Agreement or (ii) an amount of
cash determined in accordance with a formula set forth in the Offer Agreement.
See "Description of Transaction Agreements -- Offer Agreement -- PolyGram Stock
Options." With respect to any PolyGram Shares owned by the members of the
PolyGram Board of Management and the PolyGram Supervisory Board, such persons
may tender such PolyGram Shares into the Offer and elect to receive Share
Consideration or Cash Consideration on the same terms and conditions as other
PolyGram shareholders.
INDEMNIFICATION AND INSURANCE
Pursuant to the Offer Agreement, Seagram will (i) to the fullest extent
lawful, indemnify each officer, director, employee or agent of PolyGram or any
of its subsidiaries with respect to claims occurring at or prior to the purchase
of PolyGram Shares pursuant to the Offer arising in whole or in part out of the
fact that such person is or was an officer, director, employee or agent of
PolyGram or any of its subsidiaries and (ii) subject to certain limitations,
cause to be maintained in effect for a period of six years after the Closing
Date the current policies of directors' and officers' liability insurance and
fiduciary liability insurance maintained by
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PolyGram. Philips also has agreed to indemnify such persons in certain limited
circumstances. See "Description of Transaction Agreements -- Offer
Agreement -- Indemnification and Insurance."
CHANGE-IN-CONTROL AGREEMENTS AND RELATED MATTERS
Certain PolyGram officers and directors have employment agreements with
PolyGram and its subsidiaries that could be viewed as providing for an
acceleration of benefits, or giving rise to other rights, upon execution of the
Offer Agreement, compliance with the terms thereof or the consummation of the
Offer. In addition, under the terms of the Offer Agreement, certain PolyGram
officers may receive "retention bonuses" from PolyGram, which payments are
subject to certain conditions relating to the individual's continued employment
by PolyGram for a certain period. See "Description of Transaction
Agreements -- Offer Agreement -- Employee Benefits Matters." In connection with
the resignation of any members of the PolyGram Supervisory Board, as described
under "-- Purpose of the Offer; Plans for PolyGram -- PolyGram Board
Representation," no fees or other payments will be due or payable to such
members.
ACCOUNTING TREATMENT
The acquisition of PolyGram will be accounted for as a purchase for
financial accounting purposes in accordance with U.S. GAAP. For purposes of
preparing Seagram's consolidated financial statements, Seagram will establish a
new accounting basis for PolyGram's assets and liabilities based upon the fair
values thereof, the Offer Consideration and the costs of the acquisition.
Seagram's management believes that any excess of cost over the fair value of the
PolyGram assets acquired will be recorded as goodwill and other intangible
assets. A final determination of the intangible asset lives and required
purchase accounting adjustments, including the allocation of the purchase price
to the assets to be acquired and liabilities to be assumed based on their
respective fair values, has not yet been made. Accordingly, the purchase
accounting adjustments made in connection with the development of the unaudited
pro forma condensed combined financial information appearing elsewhere in this
Offering Circular/Prospectus are preliminary and have been made solely for
purposes of developing such unaudited pro forma condensed combined financial
information. Seagram is currently evaluating the fair value of certain assets to
be acquired and liabilities to be assumed. Upon completion of this valuation,
Seagram will make a final allocation of the excess cost to fair value, which may
include adjustments to the preliminary estimates referenced above. For financial
reporting purposes, the results of operations of PolyGram will be included in
Seagram's consolidated statement of income following consummation of the Offer.
LISTING OF SEAGRAM SHARES
Pursuant to the Offer Agreement, Seagram has agreed to use its best efforts
to cause the Seagram Shares to be issued as Share Consideration to be authorized
for listing, upon official notice of issuance, on the NYSE and the TSE. Seagram
does not intend to cause the Seagram Shares to be authorized for listing on the
AEX.
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CERTAIN MATERIAL TAX CONSEQUENCES
The following summary describes the principal Dutch, U.S. and Canadian
federal income tax consequences of the Offer, the Compulsory Acquisition and a
Post-Closing Dividend. This summary does not purport to be a comprehensive
description of all the tax considerations that may be relevant to a decision to
tender PolyGram Shares in the Offer or to make an election to receive Seagram
Shares in the Offer. This summary does not address the tax treatment of
beneficial owners of PolyGram stock options.
The summary of Dutch consequences does not address the tax treatment of a
holder of PolyGram Shares or Seagram Shares that has a substantial interest or
deemed substantial interest (as such terms are defined by statute) in PolyGram
or Seagram, respectively, or Dutch tax consequences due to the application of a
special regime, such as the tax-exempt status of qualifying pension funds. This
summary is based upon tax laws and published case law of the Netherlands as in
effect on the date of this Offering Circular/Prospectus, which are subject to
change.
The summary of U.S. federal income tax consequences applies only to a U.S.
Holder, as defined below. In particular, the summary deals only with beneficial
owners who hold PolyGram Shares or Seagram Shares as capital assets and does not
address the tax treatment of a beneficial owner that owns 10% or more of the
voting stock of PolyGram or Seagram, as the case may be, or that may be subject
to special tax rules, such as banks, dealers in securities or currencies,
traders in securities electing to mark to market, tax-exempt entities, insurance
companies, persons that hold PolyGram Shares or Seagram Shares as a position in
a "straddle" or a "conversion transaction" and persons that have a "functional
currency" other than the US Dollar. This summary is based upon tax laws and
practice of the United States as in effect on the date of this Offering
Circular/Prospectus, which are subject to change.
The summary of Canadian federal income tax consequences is generally
applicable to holders of Seagram Shares who acquire their Seagram Shares
pursuant to the Offer and who, for the purposes of the Income Tax Act (Canada)
(the "Tax Act") and at all relevant times, are neither resident nor deemed to be
resident in Canada, deal at arm's length with Seagram and hold their Seagram
Shares as capital property ("Non-Canadian Holders"). This summary does not
address the consequences to any holder of Seagram Shares who has used or held
such shares in the course of carrying on business in Canada or who is a
"financial institution" as defined in the Tax Act for the purposes of certain
special provisions of the Tax Act (the "mark-to-market" rules) relating to
securities held by such financial institutions or whose shares are "designated
insurance property" as defined in the Tax Act. This summary is based on the
current provisions of the Tax Act and the regulations thereunder, specific
proposals to amend the Tax Act and the regulations thereunder announced by or on
behalf of the Minister of Finance of Canada prior to the date of this Offering
Circular/Prospectus and counsel's understanding of the current published
administrative practices of Revenue Canada. This summary does not take into
account or anticipate any other changes in the law or practice, whether by
judicial, governmental or legislative decision or action, nor does it take into
account the tax considerations of any province, territory or jurisdiction other
than Canada.
HOLDERS OF POLYGRAM SHARES AND PROSPECTIVE HOLDERS OF SEAGRAM SHARES SHOULD
CONSULT THEIR OWN TAX ADVISORS AS TO THE DUTCH, U.S. AND CANADIAN TAX
CONSEQUENCES OF THE DISPOSITION OF POLYGRAM SHARES IN THE OFFER AND THE
COMPULSORY ACQUISITION, THE ELECTION TO RECEIVE SEAGRAM SHARES IN THE OFFER AND
THE RECEIPT OF A POST-CLOSING DIVIDEND, AS WELL AS THE EFFECT OF ANY FOREIGN,
STATE, PROVINCIAL OR LOCAL LAWS.
CERTAIN TAX CONSEQUENCES OF THE SALE OF POLYGRAM SHARES
DUTCH TAX CONSEQUENCES
A PolyGram shareholder that is resident or deemed to be resident in the
Netherlands (a "Netherlands Holder") will not be subject to any Dutch taxes on
income or capital gains arising on the disposal of the PolyGram Shares pursuant
to the Offer or the Compulsory Acquisition, unless:
(i) such Netherlands Holder is subject to Dutch corporate income tax
and such income or capital gain is not exempt under the so-called
"participation exemption"; or
(ii) such Netherlands Holder is an individual, who has an enterprise
or an interest in an enterprise, to which enterprise or part of an
enterprise the PolyGram Shares are attributable.
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A PolyGram shareholder that is not resident or deemed to be resident in the
Netherlands (a "Non-Netherlands Holder") will not be subject to any Dutch taxes
on income or capital gains arising on the disposal of the PolyGram Shares
pursuant to the Offer or the Compulsory Acquisition, provided that such Non-
Netherlands Holder does not have an enterprise or an interest in an enterprise
which is, in whole or in part, carried on through a permanent establishment or a
permanent representative in the Netherlands and to which enterprise or part of
an enterprise the PolyGram Shares are attributable or, in the event that the
PolyGram Shares are attributable to such enterprise or such part of an
enterprise, the Non-Netherlands Holder is subject to Dutch corporate income tax
and such income or capital gain is exempt under the so-called "participation
exemption."
The payment of Cash Consideration or Share Consideration may be made free
of any withholding or deduction of, for or on account of any taxes of whatever
nature imposed, levied, withheld or assessed by the Netherlands or any political
subdivision or taxing authority thereof or therein.
No Dutch registration tax, transfer tax, stamp duty or any similar
documentary tax or duty will be payable in the Netherlands in respect of or in
connection with the disposition of PolyGram Shares.
U.S. FEDERAL TAX CONSEQUENCES TO U.S. HOLDERS
As used herein, the term "U.S. Holder" means a beneficial owner of PolyGram
Shares that is (i) a citizen or resident of the United States, (ii) a
corporation or partnership created or organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is subject to United States federal income taxation regardless of its
source or (iv) a trust which is subject to the supervision of a court within the
United States and the control of a United States fiduciary as described in
section 7701(a)(30) of the United States Internal Revenue Code of 1986, as
amended.
The receipt of the Offer Consideration pursuant to the Offer or
consideration pursuant to the Compulsory Acquisition will be a taxable
transaction for U.S. federal income tax purposes. In general, a U.S. Holder who
receives consideration for PolyGram Shares will recognize gain or loss for U.S.
federal income tax purposes equal to the difference between (i) the amount of
any Cash Consideration and the fair market value of any Share Consideration
received in exchange for the PolyGram Shares sold and (ii) such holder's
adjusted basis in the PolyGram Shares. Such gain or loss will be capital gain or
loss, and will be long-term capital gain or loss if the holder has held the
PolyGram Shares for more than one year at the time of sale. The deductibility of
capital losses is subject to limitations. Any gain recognized by a U.S. Holder
will generally be treated as United States source income. It is presently
unclear whether any loss realized by a U.S. Holder will be treated as from
sources within the United States or without the United States.
If the amount of Cash Consideration received by a U.S. Holder is paid in
Dutch Guilders, the amount received will be the US Dollar value of the Dutch
Guilders received (determined by translating the Dutch Guilders received at the
"spot rate" for Dutch Guilders on the date payment is received) regardless of
whether the payment is in fact converted into US Dollars. A U.S. Holder's tax
basis in Dutch Guilders received will be the US Dollar value thereof at the spot
rate at the time the holder received such Dutch Guilders. Any gain or loss
recognized by a U.S. Holder on a sale, exchange, retirement or other disposition
of such Dutch Guilders will be ordinary income or loss.
For a discussion of Dutch taxes on U.S. Holders, see "-- Dutch Tax
Consequences" above.
Information Reporting and Backup Withholding. In general, information
reporting requirements will apply to proceeds received on the sale of PolyGram
Shares which are paid within the United States (and in certain cases, outside of
the United States) to U.S. Holders other than certain exempt recipients (such as
corporations), and a 31% backup withholding may apply to such amounts if the
U.S. Holder fails to provide an accurate taxpayer identification number or to
report interest and dividends required to be shown on its federal income tax
returns. The amount of any backup withholding from a payment to a U.S. Holder
will be allowed as a credit against the U.S. Holder's United States federal
income tax liability.
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TAX CONSEQUENCES OF A POST-CLOSING DIVIDEND
Following the consummation of the Offer, Seagram intends to effect the
Reorganization. See "The Offer -- Purpose of the Offer; Plans for PolyGram."
Substantially all the proceeds of the Reorganization may be distributed as a
Post-Closing Dividend to Seagram (or an affiliate) and the remaining PolyGram
shareholders.
DUTCH TAX CONSEQUENCES
A Non-Netherlands Holder that has not tendered its PolyGram Shares will not
be subject to any Dutch taxes on income or capital gains in respect of a
Post-Closing Dividend (other than Dutch dividend withholding tax described
below), provided that such Non-Netherlands Holder does not have an enterprise or
an interest in an enterprise which is, in whole or in part, carried on through a
permanent establishment or a permanent representative in the Netherlands and to
which enterprise or part of an enterprise the PolyGram Shares are attributable
or, if the PolyGram Shares are attributable to such enterprise or such part of
an enterprise, the Non-Netherlands Holder is subject to Dutch corporate income
tax and such dividend is exempt under the so-called "participation exemption."
A Netherlands Holder that has not tendered its PolyGram Shares will be
subject to Dutch income taxes in respect of a Post-Closing Dividend, unless such
Netherlands Holder is subject to Dutch corporate income tax and such dividend is
exempt under the so-called "participation exemption."
PolyGram is required to withhold Dutch dividend withholding tax on any
Post-Closing Dividend, unless: (i) the shareholder is a Netherlands Holder
subject to Dutch corporate income tax and such dividend is exempt under the
so-called "participation exemption"; or (ii) the shareholder is a
Non-Netherlands Holder that has an enterprise or an interest in an enterprise
which is, in whole or in part, carried on through a permanent establishment or a
permanent representative in the Netherlands and to which enterprise or part of
an enterprise the PolyGram Shares are attributable, provided that the
shareholder is subject to Dutch corporate income tax and such dividend is exempt
under the so-called "participation exemption."
A Netherlands Holder may generally credit the Dutch dividend withholding
tax in full or in part against Dutch (corporate) income tax due over the
dividend received. A Non-Netherlands Holder may be eligible for a reduction or
refund of Dutch dividend withholding tax under a tax convention which is in
effect between the shareholder's country of residence and the Netherlands. The
Netherlands has concluded such conventions with, among other countries, the
United States.
Under the United States-Netherlands Income Tax Treaty of 1992 (the
"U.S.-Netherlands Treaty"), the dividend withholding tax rate on dividends paid
by PolyGram to a U.S. Holder may be reduced to 15% if the U.S. Holder meets
certain tests contained in the U.S.-Netherlands Treaty. A U.S. Holder will
satisfy the U.S.-Netherlands Treaty test, and be subject to reduced withholding,
if such Holder (i) is a U.S. resident within the meaning of the U.S.-Netherlands
Treaty, (ii) holds PolyGram Shares that are not, for purposes of the
U.S.-Netherlands Treaty, effectively connected with a permanent establishment in
the Netherlands and (iii) otherwise qualifies for the benefits of the
U.S.-Netherlands Treaty. U.S. Holders should contact their own tax advisors to
determine whether they will be eligible for the reduced U.S.-Netherlands Treaty
rate. Under the U.S.-Netherlands Treaty, in certain circumstances, dividends
paid by PolyGram to U.S. pension funds and U.S. exempt organizations may be
eligible for a refund of or exemption from the dividend withholding tax.
U.S. FEDERAL TAX CONSEQUENCES TO U.S. HOLDERS
The gross amount of any cash dividends, including a Post-Closing Dividend,
paid by PolyGram with respect to PolyGram Shares, including the amount of any
Dutch taxes withheld therefrom, generally will be includible in the gross income
of a U.S. Holder to the extent paid out of PolyGram's current or accumulated
earnings and profits, as determined under U.S. federal income tax principles.
Such income will be foreign source dividend income and will not be eligible for
the dividends-received deduction allowed to U.S. corporations with respect to
stock of other U.S. corporations. Dutch withholding tax at the legally
applicable rate (taking into account any treaty reductions) will be treated as
foreign income tax which U.S. Holders may elect to deduct in computing their
taxable income or, subject to the limitations on foreign tax credits generally,
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credit against their U.S. federal income tax liability. Under a provision of the
Dutch dividend tax act, PolyGram may be entitled to a credit against the amount
of dividend tax withheld before remittance to the Dutch tax authorities. The
credit is at most 3% of the part of the gross dividend from which dividend tax
is withheld. The United States tax authorities may take the position that the
Dutch withholding tax eligible for the U.S. foreign tax credit is limited
accordingly. Dividends on PolyGram Shares generally will constitute "passive
income" or, in the case of certain U.S. holders, "financial services income" for
U.S. foreign tax credit purposes. Special rules apply to certain individuals
whose foreign source income during the taxable year consists entirely of
"qualified passive income" and whose creditable foreign taxes paid or accrued
during the taxable year do not exceed $300 ($600 in the case of joint returns).
Foreign tax credits will not be allowed for withholding taxes imposed in respect
of certain short-term or hedged positions in securities or in respect of
arrangements in which a U.S. Holder's expected economic profit, after non-U.S.
taxes, is insubstantial. U.S. Holders should consult their own advisers
concerning the implications of these rules in light of their particular
circumstances.
To the extent that the amount of any distribution exceeds PolyGram's
current and accumulated earnings and profits for a taxable year, the
distribution will first be treated as a tax-free return of capital, causing a
reduction in the adjusted basis of the PolyGram Shares (thereby increasing the
amount of gain, or decreasing the amount of loss, to be recognized by the
investor on a subsequent disposition of the PolyGram Shares), and the balance in
excess of adjusted basis will be taxed as capital gain recognized on a sale or
exchange.
CERTAIN TAX CONSEQUENCES OF HOLDING SEAGRAM SHARES
CERTAIN CANADIAN TAX CONSEQUENCES
Dividends paid or credited, or deemed to be paid or credited, on Seagram
Shares to a Non-Canadian Holder will generally be subject to Canadian
non-resident withholding tax at the rate of 25% of the gross amount of such
dividend, or such lesser rate as may be provided under the provisions of any
applicable tax treaty. Under the terms of the Canada-United States Income Tax
Convention and the Canada-Netherlands Income Tax Convention (the "Conventions"),
the rate of non-resident withholding tax is generally reduced to 15% in the case
of dividends paid or credited to a Non-Canadian Holder who is a resident of the
United States or the Netherlands and who is the beneficial owner thereof. In
some limited cases contemplated by the Conventions, the rate may be further
reduced (or eliminated in the case of certain tax-exempt entities which are
residents of the United States).
Under Canadian tax law (with limited exceptions), dividends may be deemed
to have been paid when a corporation redeems or purchases for cancellation
shares of its capital stock. The amount of the dividend deemed to have been paid
will equal the difference between the amount paid on the share and the "paid-up
capital" (as defined in the Tax Act) of the shares so redeemed or purchased for
cancellation. The "paid-up capital" of the Seagram Shares issued to a
Non-Canadian Holder may be less than the value of such shares at the time of
their issuance due to the fact that the increase in paid-up capital of Seagram,
as a result of the purchase of the PolyGram Shares, will be averaged with the
paid-up capital of the Seagram Shares previously issued.
Gains realized on the disposition or deemed disposition of Seagram Shares
(including the death of a Non-Canadian Holder) will not generally be subject to
tax under the Tax Act unless such Seagram Shares are or are deemed to be
"taxable Canadian property" to the Non-Canadian Holder within the meaning of the
Tax Act and such holder is not entitled to relief under the provisions of the
applicable tax treaty. Seagram Shares will generally not be taxable Canadian
property of a holder who is a Non-Canadian Holder, provided that such Seagram
Shares are listed on a prescribed stock exchange (which includes the NYSE and
the TSE), unless at any time during the 5-year period that ends at the time of
their disposition, the holder and persons with whom the holder did not deal at
arm's length owned 25% or more of the issued shares of any class or series of
shares of Seagram (taking into account any interests in or options in respect of
shares). If the Seagram Shares are taxable Canadian property to a Non-Canadian
Holder, a gain realized on the disposition or deemed disposition of such Seagram
Shares may be exempt from tax by reason of an applicable tax treaty.
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U.S. FEDERAL TAX CONSEQUENCE TO U.S. HOLDERS
The gross amount of any cash dividends paid by Seagram with respect to
Seagram Shares, including the amount of any Canadian taxes withheld therefrom,
generally will be includible in the gross income of a U.S. Holder to the extent
paid out of Seagram's current or accumulated earnings and profits, as determined
under U.S. federal income tax principles. Such income will be foreign source
dividend income and will not be eligible for the dividends-received deduction
allowed to U.S. corporations with respect to stock of other U.S. corporations.
Canadian withholding tax at the legally applicable rate (taking into account any
treaty reductions) will be treated as foreign income tax which U.S. Holders may
elect to deduct in computing their taxable income or, subject to the limitations
on foreign tax credits generally, credit against their U.S. federal income tax
liability. Dividends on Seagram Shares generally will constitute "passive
income" or, in the case of certain U.S. holders, "financial services income" for
U.S. foreign tax credit purposes. Special rules apply to certain individuals
whose foreign source income during the taxable year consists entirely of
"qualified passive income" and whose creditable foreign taxes paid or accrued
during the taxable year do not exceed $300 ($600 in the case of joint returns).
Foreign tax credits will not be allowed for withholding taxes imposed in respect
of certain short-term or hedged positions in securities or in respect of
arrangements in which a U.S. Holder's expected economic profit, after non-U.S.
taxes, is insubstantial. U.S. Holders should consult their own advisers
concerning the implications of these rules in light of their particular
circumstances.
To the extent that the amount of any distribution exceeds Seagram's current
and accumulated earnings and profits for a taxable year, the distribution will
first be treated as a tax-free return of capital, causing a reduction in the
adjusted basis of the Seagram Shares (thereby increasing the amount of gain, or
decreasing the amount of loss, to be recognized by the investor on a subsequent
disposition of the Seagram Shares), and the balance in excess of adjusted basis
will be taxed as capital gain recognized on a sale or exchange.
Gain or loss realized by a U.S. Holder on the sale or other disposition of
Seagram Shares will be subject to U.S. federal income taxation as capital gain
or loss in an amount equal to the difference between such U.S. Holder's tax
basis in the Seagram Shares and the amount realized on the disposition. Such
holder's tax basis will be the fair market value of the Seagram Shares on the
date of acquisition. Any such gain or loss will be capital gain or loss and will
be long-term capital gain or loss if the Seagram Shares were held for more than
one year. The holding period will begin on the day after the date of acquisition
of the Seagram Shares. The deductibility of capital losses is subject to
limitations. Any gain recognized by a U.S. Holder will generally be treated as
United States source income. It is presently unclear whether any loss realized
by a U.S. Holder will be treated as from sources within the United States or
without the United States.
Information Reporting and Backup Withholding. In general, information
reporting requirements will apply to dividends in respect of the Seagram Shares
or the proceeds received on the sale, exchange, or redemption of Shares paid
within the United States (and in certain cases, outside of the United States) to
U.S. Holders other than certain exempt recipients (such as corporations), and a
31% backup withholding may apply to such amounts if the U.S. Holder fails to
provide an accurate taxpayer identification number or to report interest and
dividends required to be shown on its federal income tax returns. The amount of
any backup withholding from a payment to a U.S. Holder will be allowed as a
credit against the U.S. Holder's United States federal income tax liability.
DUTCH TAX CONSEQUENCES
A Netherlands Holder receiving Share Consideration will not be subject to
any Dutch taxes on income or capital gains in respect of any capital gain
realized on the disposal of Seagram Shares, unless:
(i) such Netherlands Holder is subject to Dutch corporate income tax
and such income or capital gain is not exempt under the so-called
"participation exemption"; or
(ii) such Netherlands Holder is an individual, who has an enterprise
or an interest in an enterprise, to which enterprise or part of an
enterprise the Seagram Shares are attributable.
A Netherlands Holder receiving Share Consideration will be subject to Dutch
income taxes on a dividend payment with respect to the Seagram Shares, unless
such Netherlands Holder is subject to Dutch corporate income tax and such
dividend is exempt under the so-called "participation exemption." A Netherlands
Holder
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may generally either credit the Canadian dividend withholding tax in full or in
part against Dutch (corporate) income tax due over the dividend received or
elect to take the Canadian dividend withholding tax as a deduction, unless such
Netherlands Holder is subject to Dutch corporate income tax and such dividend is
exempt under the so-called "participation exemption."
A Non-Netherlands Holder receiving Share Consideration will not be subject
to any Dutch taxes on income or capital gains in respect of any dividend payment
under the Seagram shares or in respect of any capital gains realized on the
disposition of Seagram Shares, provided that:
(i) such Non-Netherlands Holder does not become a resident or a deemed
resident of the Netherlands; and
(ii) such Non-Netherlands Holder does not have an enterprise or an
interest in an enterprise which is, in whole or in part, carried on through
a permanent establishment or a permanent representative in the Netherlands
and to which enterprise or part of an enterprise the Seagram Shares are
attributable or, in the event that the Seagram Shares are attributable to
such enterprise or such part of an enterprise, the Non-Netherlands Holder
is subject to Dutch corporate income tax and such income or capital gain is
exempt under the so-called "participation exemption."
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DESCRIPTION OF TRANSACTION AGREEMENTS
The following discussion summarizes certain provisions of the Offer
Agreement, the Tender Agreement, the Voting Agreement and the Stockholders
Agreement, copies of which have been filed as exhibits to the Registration
Statement and the Schedule 14D-1 and are incorporated herein by reference. Such
discussion does not purport to be complete and is qualified in its entirety by
reference to the text of such agreements.
OFFER AGREEMENT
THE OFFER
The Offer Agreement provides that the obligation of Seagram to accept
Tendered Shares will be subject only to the satisfaction or waiver by Seagram of
the Offer Conditions (see "The Offer -- Certain Conditions of the Offer").
Seagram, PolyGram and Philips have agreed that Seagram may, to the maximum
extent permitted by Dutch Law, in its sole discretion (subject to the
limitations described below under "-- Effect of Termination"), waive any Offer
Condition and make any other changes in the terms and conditions of the Offer
(or extend the Offer beyond a scheduled Expiration Date if any of the Offer
Conditions shall not be satisfied); provided, that, unless previously approved
by PolyGram and Philips in writing, no change may be made which increases the
Minimum Condition, decreases the price per share payable in the Offer, changes
the form of consideration payable in the Offer (other than by adding
consideration), reduces the maximum number of PolyGram Shares to be purchased in
the Offer, or amends the terms of the Offer or the Offer Conditions or imposes
additional conditions or terms to the Offer which, in any such case, are adverse
to PolyGram shareholders or make the likelihood of the Offer succeeding more
remote in any material respect.
Seagram has agreed that, in the event it is unable to consummate the Offer
on the initial scheduled Expiration Date due to the failure of any of the Offer
Conditions to be satisfied or waived, it will, unless the Offer Agreement is
terminated pursuant to the provisions described under "-- Termination," extend
the Offer and set a subsequent scheduled Expiration Date, and will continue to
so extend the Offer and set subsequent scheduled Expiration Dates, until the
Termination Date. "Termination Date" means the later of (i) December 31, 1998
and (ii) 60 days after the earliest date on which all of the following shall
have occurred or been satisfied: (a) the Antitrust Condition shall have been
satisfied, (b) the EU Condition shall have been satisfied, (c) the Registration
Statement of which this Offering Circular/Prospectus forms a part shall have
been declared effective by the SEC under the U.S. Securities Act and the
applicable requirements under Dutch Law and the rules of Amsterdam Exchanges for
commencement of the Offer shall have been satisfied, (d) the Offer shall have
been commenced and (e) any of the events described in paragraphs (a) and (b)
under "The Offer -- Certain Conditions of the Offer" shall not be occurring (and
during such 60 days shall not have occurred) or shall have been waived as an
Offer Condition by Seagram. The Offer Agreement provides that under no
circumstances will the Termination Date be later than the one year anniversary
of the date of the Offer Agreement.
In addition, Seagram has agreed that (i) the initial scheduled Expiration
Date of the Offer will be not later than the earlier of (a) 60 business days
following the Commencement Date and (b) the date on which Seagram reasonably
believes that all Offer Conditions (other than the Minimum Condition) will be
satisfied or waived (which date may not be fewer than 20 business days following
the Commencement Date) and (ii) each subsequent scheduled Expiration Date will
be not later than the earlier of (a) 20 business days following the previous
scheduled Expiration Date, (b) the date on which Seagram reasonably believes
that all Offer Conditions (other than the Minimum Condition) will be satisfied
or waived and (c) the Termination Date. Seagram has further agreed that it will
consummate the Offer and acquire all Tendered Shares at the earliest time
permitted under the U.S. Exchange Act, the Dutch Merger Code and other
applicable Dutch Law and as of which all of the Offer Conditions shall have been
satisfied or waived by Seagram.
Seagram may, at any time, transfer or assign to one or more of its
subsidiaries (organized or incorporated under the laws of Canada, the United
States, the Netherlands or any other jurisdiction, provided, that such other
jurisdiction would not impose a withholding tax on the payment of the Offer
Consideration) the right to purchase all or any portion of the Tendered Shares,
but any such transfer or assignment will not relieve Seagram of its obligations
under the Offer or prejudice the rights of tendering PolyGram shareholders to
receive payment for the Tendered Shares which are accepted pursuant to the
Offer.
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For a description of the ability of PolyGram shareholders to elect to
receive Share Consideration or Cash Consideration pursuant to the Offer, the
procedures for making such Elections and the limited availability of Share
Consideration in the Offer, see "The Offer -- Election Procedures" and "The
Offer -- Limited Availability of Share Consideration." For a description of the
treatment of fractional Seagram Shares in respect of PolyGram shareholders
making Share Elections, see "The Offer -- Terms of the Offer." For a description
of the procedures relating to Seagram's acceptance of the Tendered Shares and
delivery of the Offer Consideration, see "The Offer -- Acceptance of Tendered
Shares; Delivery of the Offer Consideration."
PolyGram has approved of and consented to the Offer and represented and
warranted that (i) PolyGram's Supervisory Board and Board of Management, at
meetings duly called and held, (a) determined that the Offer Agreement and the
transactions contemplated thereby, including the Offer, are fair to, and in the
best interests of, PolyGram shareholders and other relevant constituencies, its
subsidiaries and the enterprises carried on by itself and its subsidiaries, (b)
approved the Offer Agreement and the transactions contemplated thereby,
including the Offer, in all respects and (c) resolved to recommend that PolyGram
shareholders accept the Offer and tender their PolyGram Shares thereunder to
Seagram and (ii) Lazard Freres, PolyGram's financial advisor, has delivered to
PolyGram's Supervisory Board and Board of Management its opinion dated as of
June 21, 1998 (which opinion was confirmed in writing as of such date), to the
effect that the Offer Consideration is fair to the PolyGram shareholders from a
financial point of view. PolyGram has agreed that its Supervisory Board and its
Board of Management will make no other statements as to its position with
respect to the Offer other than such recommendation unless its Supervisory Board
or its Board of Management, as the case may be, concludes in good faith and on
the basis of advice from outside counsel that failure to do otherwise would
constitute a breach of its fiduciary duties under applicable law. See "The
Offer -- PolyGram's Reasons for the Offer; Recommendation of the PolyGram Board
of Management and the PolyGram Supervisory Board" and "The Offer -- Opinion of
PolyGram Financial Advisor."
Philips also has approved of and consented to the Offer and represented and
warranted that Philips' Supervisory Board and Board of Management, at meetings
duly called and held, approved the Offer Agreement, including the Offer, the
Tender Agreement, the Voting Agreement and the Stockholders Agreement.
POLYGRAM BOARD REPRESENTATION
For a description of the provisions of the Offer Agreement with respect to
the composition of the PolyGram Supervisory Board and the PolyGram Board of
Management following the consummation of the Offer, see "The Offer -- Purpose of
the Offer; Plans for PolyGram -- PolyGram Board Representation."
POST-CLOSING RESTRUCTURING
The Offer Agreement states that Seagram intends, simultaneously with or as
soon as practicable following the consummation of the Offer, to effectuate a
corporate reorganization of PolyGram and its subsidiaries, which may include (i)
the sale and transfer by PolyGram, or any of its subsidiaries, to Seagram, or
any affiliates of Seagram, of all or a portion of the assets of PolyGram or its
subsidiaries, (ii) the amendment of the Articles of Association of PolyGram to
permit the creation, among other things, of separate classes of shares, (iii)
the distribution of an extraordinary dividend (such as a Post-Closing Dividend)
on the shares of PolyGram or a particular class or classes of shares of
PolyGram, (iv) the commencement of a compulsory acquisition by Seagram of shares
of PolyGram from any remaining minority shareholder in accordance with Section
2:92a of the DCC and (v) the effectuation by PolyGram and one or more Dutch
subsidiaries of Seagram of a legal merger within the meaning of Section 2:309 of
the DCC; provided, that the merger consideration will, if the legal merger
referred to in clause (v) above occurs within six months after the Closing,
provide equivalent value (taking into account the liquidity of any securities
issued and the other aspects of the valuation of such securities) as the Offer
Consideration. See "The Offer -- Purpose of the Offer; Plans for PolyGram."
Pursuant to the Offer Agreement, each of Philips and PolyGram has agreed
with Seagram that, unless its respective Supervisory Board or Board of
Management concludes in good faith and on the basis of advice from outside
counsel that to do so would constitute a breach of its fiduciary duties under
applicable law or will violate any other applicable law, it will take,
conditioned on the Minimum Condition having been satisfied
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(but not waived) and effective no earlier than the consummation of the Offer,
all actions reasonably necessary or desirable to accomplish the corporate
reorganizations referred to in the immediately preceding paragraph, including
(i) the convening of the necessary meetings of the shareholders, Board of
Management and Supervisory Board of PolyGram, (ii) the casting of the votes
attached to the shares of Philips in favor of any proposal of PolyGram that
purports to effectuate any of such corporate reorganizations, (iii) the
consideration of any and all necessary or desirable resolutions by the Board of
Management or the Supervisory Board of PolyGram for the purpose of the corporate
reorganizations and (iv) the execution of, and the filing or registration of,
any and all reasonably requested documents, agreements or deeds that are
necessary or desirable to effectuate any of the corporate reorganizations. In
addition, at the request of Seagram, each of Philips and PolyGram has agreed to
take any and all other actions that are required or desirable to accomplish the
corporate reorganization of PolyGram and its subsidiaries, so long as such
actions are reasonable in such party's judgment based on the relative detriment
to such party of taking such action and the relative benefit to Seagram from
such action; provided, that in the case of an action detrimental to PolyGram or
Philips (as determined in the good faith judgment of the applicable party), such
action will not be effective prior to the Closing Date. With respect to all
actions taken by Philips or PolyGram pursuant to the provisions described in
this paragraph, Seagram has agreed to reimburse such parties for their
out-of-pocket costs and expenses regardless of whether or not the Offer is
consummated. Seagram also has agreed to defend, indemnify and hold harmless
Philips and PolyGram and their respective directors, officers and affiliates,
including the members of PolyGram's Board of Management, against any loss,
damage, claim, liability, judgment or settlement of any nature or kind,
including all costs and expenses relating thereto, including interest, penalties
and reasonable attorneys' fees, arising out of, resulting from or relating to
the effectuation of any of the actions or transactions described in this
paragraph or in the immediately preceding paragraph.
REPRESENTATIONS AND WARRANTIES
The Offer Agreement contains various representations and warranties of
PolyGram, Philips and Seagram. In the Offer Agreement, PolyGram represents and
warrants as to, among other things (i) organization, standing and similar
corporate matters, (ii) authorization, execution, delivery and enforceability of
the Offer Agreement, (iii) absence of conflicts with agreements, (iv)
governmental approvals, (v) PolyGram's capital structure, (vi) documents and
financial statements filed by PolyGram with the SEC and absence of undisclosed
liabilities, (vii) information supplied by PolyGram in connection with the
Registration Statement and this Offering Circular/Prospectus, (viii) absence of
certain changes or events since December 31, 1997, (ix) litigation, (x)
PolyGram's employee benefits matters, (xi) compliance with laws and agreements,
(xii) tax matters, (xiii) environmental matters, (xiv) material contracts, (xv)
intellectual property, (xvi) certain related party agreements and (xvii)
broker's or finder's fees.
In the Offer Agreement, Philips represents and warrants as to, among other
things, (i) authorization, execution, delivery and enforceability of the Offer
Agreement, (ii) absence of conflicts with agreements, (iii) governmental
approvals, (iv) PolyGram's capital structure, (v) information supplied by
Philips in connection with the Registration Statement and this Offering
Circular/Prospectus, (vi) Philips' employee benefit plans, (vii) certain related
party agreements and (viii) broker's or finder's fees.
In the Offer Agreement, Seagram represents and warrants as to, among other
things (i) organization, standing and similar corporate matters, (ii)
authorization, execution, delivery and enforceability of the Offer Agreement,
(iii) absence of conflicts with agreements, (iv) governmental approvals, (v)
Seagram's capital structure, (vi) documents and financial statements filed by
Seagram with the SEC and absence of undisclosed liabilities, (vii) information
contained in the Registration Statement and this Offering Circular/Prospectus,
(viii) absence of certain changes or events since December 31, 1997, (ix)
litigation, (x) availability of funds to Seagram to satisfy its obligations in
connection with the Offer and (xi) broker's or finder's fees.
Except for the representations and warranties of Philips relating to
PolyGram's capital structure and certain related party transactions, all of the
representations and warranties of PolyGram, Philips and Seagram shall expire on
the Closing Date.
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CONDUCT OF BUSINESS PRIOR TO CLOSING
Pursuant to the Offer Agreement, Philips has agreed to use its best efforts
to cause PolyGram and each of PolyGram's subsidiaries to, and PolyGram has
agreed to and to cause each of its subsidiaries to, among other things, during
the period from the date of the Offer Agreement and continuing until the Closing
Date, except as expressly contemplated or permitted by the Offer Agreement or to
the extent that Seagram otherwise consents in writing (such consent not to be
unreasonably withheld or unreasonably delayed, provided, that, in considering
any consent request, Seagram will act in good faith in accordance with
applicable law and with a view to preserving the current going concern value of
PolyGram's businesses and operations), and subject to the limitations and
exceptions stated in the Offer Agreement, (i) carry on its businesses in the
usual, regular and ordinary course in all material respects, not enter into any
new material line of business, and not incur or commit to any capital
expenditures other than capital expenditures incurred or committed to in the
ordinary course of business consistent with past practice and which, together
with certain other expenditures, do not exceed certain specified amounts, (ii)
not declare or pay any dividends or make other distributions in respect of any
of its capital stock (except, among other things, a dividend payable by PolyGram
to all PolyGram shareholders in an amount per share equal to NLG 0.50 in respect
of the period from January 1, 1998 until June 30, 1998, inclusive), (iii) not
split, combine or reclassify any of its capital stock, (iv) not repurchase,
redeem or otherwise acquire any of its securities (except in the case of open
market purchases of PolyGram Shares in connection with the exercise of PolyGram
stock options), (v) not issue any additional securities (except, among other
things, for the issuance of PolyGram Shares upon the exercise of PolyGram stock
options), (vi) not amend its organizational documents, (vii) not make
acquisitions (except, among other things, for acquisitions which do not exceed
$25 million, individually, or $75 million during the twelve months after the
date of the Offer Agreement), (viii) not make dispositions of assets (except,
among other things, for the sale of PolyGram's film division as described under
"-- Sale of Film Division" below or dispositions which do not exceed $2 million,
individually, or $5 million in the aggregate during the twelve months after the
date of the Offer Agreement), (ix) not enter into or amend any artist contract
so as to include any "change of control" provision, (x) not enter into or amend
any contract so as to include any "key-man" provision, any provision which
reduces any existing territorial rights of PolyGram or any of its subsidiaries
or certain reversion provisions, (xi) not terminate any contract with any artist
whose last album sold more than 1 million units during any five-year period,
(xii) not enter into, amend in any material respect or renew any contract with
any artist, production company, songwriter or publishing company in respect of
whom or which PolyGram and its subsidiaries are required to make payments in
excess of certain specified amounts, (xiii) not provide or commit to provide
advances to artists exceeding certain specified amounts, (xiv) not terminate any
distribution contract pursuant to which PolyGram or any of its subsidiaries acts
as a distributor for a third party and pursuant to which at least $10 million of
sales were made during the preceding 12 months, (xv) not enter into or amend
certain contracts so as to include any provision limiting the freedom of
PolyGram or any of its subsidiaries (a) to engage in any line of business in any
geographic area or to compete with any person or (b) to incur indebtedness for
borrowed money, (xvi) not enter into or amend any contract so as to include any
provision which would subject any of the products or services of Seagram or any
of its subsidiaries or affiliates to such contract upon consummation of the
Offer, (xvii) not enter into any employment contract that provides for total
guaranteed annual compensation in excess of $500,000 per year for any person who
was not an employee of PolyGram or any of its subsidiaries on the date of the
Offer Agreement (subject to certain exceptions in the case of replacement
employees), (xviii) not enter into, amend any material term of, or renew any
employment contract (except for certain terminable contracts) with any employee
of PolyGram or any of its subsidiaries so as to provide for a term in excess of
five years or so as to provide total guaranteed annual compensation in excess of
the greater of $500,000 per year and 120% of such employee's total guaranteed
annual compensation as of the date of the Offer Agreement, (xix) not renew any
employment contract if there are more than 90 days until the scheduled
expiration date of such contract (except for certain terminable contracts and
for contracts that by their terms must be exercised more than 90 days prior to
the scheduled expiration date), (xx) not renew for a period of more than one
year any employment contract (except for certain terminable contracts) that
provides for total guaranteed annual compensation in excess of $1,000,000 per
year, (xxi) not terminate any employment contract that provides any employee
with total guaranteed annual compensation in excess of $500,000 per year (other
than for material breach by such employee),
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(xxii) not enter into, amend any material term of or renew for a period longer
than one year any contract with any current or former director or executive
officer of PolyGram or any of its subsidiaries or affiliates or any entity
controlled by such current or former director or executive officer (other than
employment agreements or pursuant to PolyGram's share option schemes or
involving de minimis assets or services), (xxiii) not enter into, amend or renew
for a period longer than one year any contract or instrument involving guarantee
obligations exceeding $20 million, individually, or $40 million in the
aggregate, (xxiv) not enter into or renew for a period of more than two years
any film output arrangements relating to a specified cable television channel,
(xxv) not make certain loans, advances, capital contributions or investments or
incur certain indebtedness, (xxvi) not make certain increases in the
compensation or fringe benefits of employees or make certain payments of
benefits not required by any existing plan or arrangement, (xxvii) not take any
action that would, or that could reasonably be expected to, result in any of the
Offer Conditions not being satisfied or in the delay in the satisfaction of any
Offer Conditions, (xxviii) not make certain changes to its methods of accounting
or make certain tax elections, (xxix) not incur or commit film development and
production spending in excess of certain specified amounts, (xxx) not enter
into, amend, make binding or renew certain "first look" film agreements or "put
picture" agreements, (xxxi) not enter into any license covering any film or
television product for a term of more than three years (four years in the case
of any U.S. network license covering one film or television product) (except,
among other things, for immaterial licenses) and (xxxii) not enter into
contracts providing for certain exclusive output or distribution arrangements.
Neither PolyGram nor Philips shall be deemed to be in breach of the covenants
described in this paragraph as a result of an inadvertent breach of such
covenants.
BEST EFFORTS
Subject to the terms and conditions of the Offer Agreement, each of
Seagram, Philips and PolyGram has agreed to use its 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 the Offer Agreement and under applicable
laws and regulations to consummate the Offer and the other transactions
contemplated by the Offer Agreement as soon as practicable after the date
thereof. In furtherance and not in limitation of the foregoing, each party has
agreed to make all necessary filings with certain governmental entities as
promptly as practicable after the date of the Offer Agreement, and to use all
reasonable efforts to furnish or cause to be furnished, as promptly as
practicable, all information and documents requested with respect to such
filings, and otherwise cooperate with the applicable governmental entity in
order to obtain required specified consents, approvals, licenses, permits,
orders and authorizations in as expeditious a manner as possible.
Each of Seagram, Philips and PolyGram will, in connection with the efforts
to obtain all requisite approvals and authorizations for the purchase of
Tendered Shares under the Offer and the other transactions contemplated by the
Offer Agreement under applicable antitrust or competition laws, use its best
efforts to (i) take or cause to be taken all actions and to do or cause to be
done all things necessary, proper or advisable to obtain all such approvals and
authorizations (which efforts include (a) entering into negotiations, providing
information, making proposals, entering into and performing agreements or
submitting to judicial or administrative orders, (b) proffering PolyGram's and
Seagram's willingness to accept an order providing for the divestiture by
Seagram of such of PolyGram's assets and businesses (or, in lieu thereof,
approximately equivalent assets and businesses of Seagram) as are necessary to
permit Seagram to consummate the Offer, including an offer to hold separate such
assets and businesses pending any such divestiture, and (c) opposing vigorously
any litigation relating to the Offer or the transactions contemplated by the
Offer Agreement, including promptly appealing any adverse court order), (ii)
cooperate in all respects with each other in connection with any filing or
submission and in connection with any investigation or other inquiry, including
any proceeding initiated by a private party, (iii) promptly inform the other
party of any communication received by such party from, or given by such party
to any governmental entity and of any material communication received or given
in connection with any proceeding by a private party, in each case regarding any
of the transactions contemplated by the Offer Agreement, and (iv) permit the
other party to review any communication given by it to, and consult with each
other in advance of any meeting or conference with, any such governmental entity
or, in connection with any proceeding by a private party, with any other person,
and
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to the extent permitted by such governmental entity or other person, give the
other party the opportunity to attend and participate in such meetings and
conferences.
If any administrative or judicial action or proceeding, including any
proceeding by a private party, is instituted (or threatened to be instituted)
challenging any transaction contemplated by the Offer Agreement as violative of
any applicable antitrust or competition laws, each of Seagram, Philips and
PolyGram will cooperate in all respects with each other and use its respective
reasonable best efforts to contest and resist any such action or proceeding and
to have vacated, lifted, reversed or overturned any decree, judgment, injunction
or other order, whether temporary, preliminary or permanent, that is in effect
and that prohibits, prevents or restricts consummation of the transactions
contemplated by the Offer Agreement.
If any objections are asserted with respect to the transactions
contemplated by the Offer Agreement under any applicable antitrust or
competition laws or if any suit is instituted by any governmental entity or any
private party challenging any of the transactions contemplated thereby as
violative of any applicable antitrust or competition laws, each of Seagram,
Philips and PolyGram will use its reasonable best efforts to resolve any such
objections or challenge as such governmental entity or private party may have to
such transactions under such applicable antitrust or competition laws so as to
permit consummation of the transactions contemplated by the Offer Agreement.
Each of Seagram, Philips and PolyGram has agreed to give promptly such
notices to third parties and use its reasonable best efforts to obtain all such
third party consents as are necessary or desirable in connection with the
transactions contemplated by the Offer Agreement.
The Offer Agreement provides that nothing in the foregoing five paragraphs
in this subsection requires Seagram to take, or agree to take, any action, or
permit Philips or PolyGram to take, or agree to take, any action, whether as a
condition to obtaining any approval from a governmental entity or any other
person or for any other reason, if such action is reasonably likely to be
materially burdensome to Universal and its subsidiaries and PolyGram and its
subsidiaries, taken as a whole, or to have a material adverse effect on the
strategic and financial benefits of the transactions contemplated by the Offer
Agreement.
NO SOLICITATION
Except as contemplated in connection with the sale of PolyGram's film
division (see "-- Sale of Film Division"), neither Philips, PolyGram nor any of
their respective subsidiaries or affiliates will, nor will Philips, PolyGram or
any of their respective subsidiaries or affiliates authorize or permit any of
their officers, managing directors, directors, employees, representatives or
agents (including but not limited to any investment banker, financial advisor,
attorney, accountant or other representative or agent) to, directly or
indirectly, (i) solicit, initiate, encourage (including by way of furnishing
information or assistance), or take any other action to facilitate, any inquiry
or the making of any proposal or offer (including any proposal or offer to any
of its shareholders) (a) with respect to any acquisition or sale of all or any
significant portion of the assets of, or any equity interest in (whether
newly-issued equity interests or outstanding equity interests), PolyGram and its
subsidiaries, taken as a whole, or any tender offer (including a self tender
offer) or exchange offer, merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving
PolyGram or any of PolyGram's subsidiaries or (b) which could reasonably be
expected to impede, frustrate, prevent, delay or nullify any of the transactions
contemplated by the Offer Agreement or to materially diminish the benefits to
Seagram of the transactions contemplated by the Offer Agreement or (ii) enter
into or participate in any discussions or negotiations regarding any of the
foregoing, or in the furtherance of any inquiries regarding any of the
foregoing, or furnish to any other person any information with respect to its
business, properties or assets or any of the foregoing.
The foregoing clauses (i) and (ii) shall not, however, prohibit PolyGram's
Supervisory Board or Board of Management from (i) furnishing information
concerning PolyGram and its business, properties or assets to a third party who
has made a bona fide written transaction proposal, which is not subject to any
material contingencies relating to financing, in response to a request for such
information, pursuant to a confidentiality agreement on terms no less favorable
to PolyGram than the Confidentiality Agreement, so long as neither such request
for information nor such transaction proposal was solicited, initiated,
encouraged or facilitated in violation of clause (i) of the immediately
preceding paragraph, (ii) engaging in discussions or negotiations
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with such a third party who has made such a transaction proposal or (iii)
following receipt of such a transaction proposal, taking and disclosing to its
shareholders a position contemplated by Rule 14e-2(a) under the U.S. Exchange
Act or applicable Dutch Law or disclosing to its shareholders information
required by Schedule 14D-9, in each case to the extent permitted by the Offer
Agreement; provided, further, that any such action referred to in the foregoing
clauses (i) and (ii) may be taken by PolyGram only if its Board of Management or
Supervisory Board, as applicable, has concluded in good faith and on the basis
of advice (a) from PolyGram's financial advisors, that such transaction proposal
involves consideration to PolyGram shareholders that is superior to the Offer
Consideration, and (b) from outside counsel that failure to take such action
would constitute a breach of the fiduciary duties of such Boards under Dutch
Law; and provided, further, that PolyGram will not take any of the foregoing
actions referred to in clauses (i) through (iii) until after providing prior
written notice to Seagram. If PolyGram or Philips or the Board of Management or
Supervisory Board of either such party receives an inquiry, proposal or offer
relating to any of the foregoing, then PolyGram or Philips, as the case may be,
will orally (within one business day) and in writing (as promptly as
practicable) inform Seagram of the terms and conditions of such proposal and the
identity of the person making it. Each of PolyGram and Philips has agreed to
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted prior to the date of the
Offer Agreement with respect to any of the foregoing. Each of PolyGram and
Philips has agreed that it will take the necessary steps to promptly inform the
individuals or entities referred to in the first sentence of the immediately
preceding paragraph of the obligations described in such paragraph and this
paragraph.
POLYGRAM STOCK OPTIONS
The Offer Agreement provides that the vesting and exercisability of each
stock option and bonus share granted by PolyGram or any of its subsidiaries
which is outstanding as of the Closing Date will be accelerated to become fully
vested and exercisable on the Closing Date. Each stock option granted by
PolyGram prior to the date of the Offer Agreement and that remains outstanding
at the Closing Date will be converted, on the Closing Date, upon the holder's
election (on an option by option basis), into an option to acquire, on the same
terms and conditions as were applicable under PolyGram's option plans, that
number of Seagram Shares determined by multiplying the number of PolyGram Shares
subject to such PolyGram stock option by the Conversion Ratio, rounded, if
necessary, up to the nearest whole Seagram Share, at a price per share equal to
the per-share exercise price specified in such PolyGram stock option divided by
the Conversion Ratio, rounded, if necessary, down to the nearest whole cent. For
purposes of the stock options, "Conversion Ratio" means the sum of (i)(A)
0.1932, multiplied by (B) the Share Consideration, and (ii)(A) 0.8068,
multiplied by (B) the quotient determined by dividing the amount of the Cash
Consideration by the average of the last sales prices on the NYSE Composite
Transaction Tape of the Seagram Shares on each of the five consecutive trading
days ending on the last trading day immediately prior to the Closing Date (the
"Share Value"). Alternatively, upon such a holder's election prior to the
Closing Date, PolyGram will pay to such holder, as soon as practicable following
the Closing Date, an amount (the "Cash Amount"), if any, in cash, equal to (i)
the number of PolyGram Shares subject to such holder's PolyGram stock option,
multiplied by (ii) the excess, if any, of the Cash Consideration over the
per-share exercise price specified in such PolyGram stock option, reduced by any
applicable withholding taxes or other amounts required by law to be paid or
withheld by PolyGram or its subsidiary, and such PolyGram stock option will then
be cancelled. As of September 30, 1998, there were issued PolyGram stock options
with respect to 3,548,704 PolyGram Shares. Of these, as of September 30, 1998,
PolyGram stock options with respect to 1,794,386 PolyGram Shares, with an
average exercise price of NLG 80.38, were exercisable.
Subject to the next sentence, with respect to each holder of a PolyGram
stock option who did not make an election specified in the immediately preceding
paragraph, such holder's Option will be converted, on the Closing Date, into an
option to acquire Seagram Shares in accordance with the conversion terms set
forth above. With respect to each holder of a PolyGram stock option who did not
make an election specified in the immediately preceding paragraph and who
provides notice to PolyGram that such holder will not permit his or her Option
to be converted into an option to acquire Seagram Shares, PolyGram will take all
reasonable action such that following the Closing Date such holder may elect to
have only the right, upon providing notice to PolyGram, to receive the Cash
Amount, reduced by any applicable withholding taxes or other amounts
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required by law to be paid or withheld by PolyGram or its subsidiary. For
purposes of the calculations described in this paragraph and the immediately
preceding paragraph, the Cash Consideration and the per-share exercise price
specified in each PolyGram stock option will be, to the extent necessary,
converted from Dutch Guilders to US Dollars, based on an exchange ratio of NLG 2
to US $1.
As of the Closing Date, each unexpired, unexercised, outstanding stock
option granted by PolyGram or any of its subsidiaries and converted into options
to acquire Seagram Shares may be exercised by its holder during the period
specified in the applicable PolyGram benefit plan or the holder's employment
agreement, or if later, throughout the period ending 90 days following the date
on which such holder's employment with PolyGram or any of its subsidiaries
terminates without cause; provided, however, that the provision of such extended
right to exercise a stock option does not result in any adverse accounting
charge to Seagram, PolyGram or any of their respective subsidiaries.
EMPLOYEE BENEFITS MATTERS
Prior to the Closing Date, PolyGram may continue to grant stock options and
awards to the extent required by the provisions (as of the date of the Offer
Agreement) of employment agreements. In addition, if the Closing Date does not
occur prior to February 1, 1999, PolyGram may thereafter continue to grant stock
options to employees in the ordinary course of business in accordance with past
practice; provided, however, that no more than 1,000,000 PolyGram Shares may be
subject to such ordinary course awards and grants.
PolyGram has agreed not to amend or terminate its U.S. retiree medical plan
following the Closing Date in any manner which results in the reduction or
elimination of the benefits available thereunder or increases in costs, other
than any copayment and cost sharing increases in the same proportion to
increases in employer-provided portions of costs, to any former employee (and
his or her eligible dependents) who is currently receiving such benefits
thereunder, or any active employee (and his or her eligible dependents) who
would be eligible for such benefits if he or she retired on the Closing Date (or
who, as of the Closing Date, is within five years of being able to retire and
receive benefits thereunder).
Until December 31, 2000 (or longer, if required by law) (the "General
Benefits Continuation Period"), PolyGram has agreed to continue to provide the
employees (who are employed on the Closing Date and who continue their
employment with PolyGram or any of its subsidiaries) with base salary levels,
bonus opportunity levels (but subject to the achievement of reasonable
performance goals) and overall employee benefits (but excluding for these
purposes (i) any retention bonuses or other extraordinary or special payments;
and (ii) any stock options and other equity awards) that are no less favorable,
in the aggregate, than those provided to employees of PolyGram and its
subsidiaries as of the date of the Offer Agreement generally, except for any
changes made to comply with applicable law or tax qualification
nondiscrimination rules. Seagram has agreed to cause PolyGram for at least
twelve months following the Closing Date to maintain the severance-related
provisions of existing benefit plans and to provide 150% of the current cash
severance payments required thereunder, reduced by any severance payments
otherwise required under existing severance and employment agreements or
applicable law (unless, with respect to the severance benefit prior to the
increase provided for herein, no such reduction is permitted or provided for).
After the end of the General Benefits Continuation Period, Seagram will cause
PolyGram to provide base salary, bonus opportunity levels and overall benefits
to such employees (but with the same exclusion as set forth above for any
retention bonuses, payments, options and equity awards) that are no less
favorable, in the aggregate, than those then provided to similarly-situated
employees of the relevant subsidiary of Seagram and will credit service with
PolyGram and its subsidiaries for such Seagram plans (unless such credit would
result in a duplication of benefits). Nothing in the Offer Agreement will
restrict, limit or interfere with the ability (after the Closing Date) of
PolyGram or Seagram to terminate, amend or replace any particular agreement,
plan or program, or terminate the employment of any person.
Each PolyGram employee will be eligible for participation in Seagram's
equity-related plans under the same criteria used with similarly-situated
employees of the relevant subsidiary of Seagram.
Notwithstanding any prior practices in the normal course, and as a
limitation on PolyGram's ability pursuant to the provisions of the Offer
Agreement to award bonuses in the ordinary course of business consistent with
past practice, PolyGram will only be permitted to award a bonus, in respect of
calendar year
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1998, to each PolyGram employee whom PolyGram budgeted such a bonus for, in an
amount no more than such employee's target bonus in respect of such year;
provided, however, that each such bonus payment must be based on the achievement
of the applicable performance objectives (if any) relative to the applicable
bonus plan or arrangement, and that the timing (which shall occur after
year-end) and amount of each such payment are consistent with past practices;
and provided, further, that if actual results from operations of PolyGram fall
below those specified in PolyGram's budget for 1998 (as provided to Seagram
prior to the date of the Offer Agreement), then no employee will receive a bonus
that exceeds two months of salary unless a higher payment is required pursuant
to the terms of a binding contractual provision in existence on the date of the
Offer Agreement. Notwithstanding the foregoing, PolyGram may award discretionary
bonuses to employees with respect to calendar year 1998 that do not exceed 8
weeks of salary or hourly compensation, as applicable, but only to employees (x)
who are not a party to an employment agreement, (y) who are party to an
employment agreement that does not include a bonus provision or (z) who are
party to an employment agreement that provides for a bonus solely in the
discretion of PolyGram and not based on any financial performance criteria.
PolyGram shall provide up to US $40 million as a retention pool for the
purpose of retaining the services of selected key employees through the Closing
Date and thereafter. The Supervisory Board of PolyGram, after consultation with
(but not approval by) Seagram, will select those employees who may receive
awards from such pool, will establish any criteria for allocating such awards
and will determine the final allocation of awards from such pool; provided,
however, that no individual employee will be allocated a bonus award in excess
of 100% of his or her base salary (or, if less, US $500,000). Fifty percent of
such awards will be paid in cash, in a lump sum, on the Closing Date, with the
balance payable in cash on the first anniversary of the Closing Date (provided
the recipient remains employed by PolyGram through such dates, or is terminated
without cause prior to such dates). PolyGram has agreed that it will, upon
Seagram's request, permit Seagram to implement additional retention programs
covering employees. In addition, the parties have agreed that Seagram and/or any
of its subsidiaries may initiate communications with any officer or key employee
of PolyGram on behalf of Seagram for the purpose of addressing the prospective
retention of such officer or employee following the Closing Date, provided that
(i) Seagram believes, in good faith, that there is a compelling, legitimate
business necessity to initiate such communications prior to the Closing Date and
(ii) such communications with each such employee will be conducted in
coordination with PolyGram management.
All pension benefits for PolyGram employees will be maintained without
adverse amendment or modification during the "Applicable Pension Continuation
Period," which means the following: (i) for the General Benefits Continuation
Period for (a) all U.S. employees and (b) all other employees not covered by
clause (ii); and (ii) without time limit for all non-U.S. employees who are, as
of the Closing Date, within 5 years of retirement; provided, however, that
nothing shall prevent or preclude amendments or modifications required by law or
reasonably necessary to obtain favorable tax treatment under the rules of the
applicable jurisdiction.
All funded pension benefit plans maintained by PolyGram or any of its
subsidiaries in which PolyGram employees participate will continue to be so
maintained after the Closing Date during the Applicable Pension Continuation
Period.
With respect to the funded pension benefit plans in which PolyGram
employees participate, but which are maintained or sponsored by Philips or its
subsidiaries (other than PolyGram or any of its subsidiaries) (the "Philips
Plans"):
(i) With respect to Philips Plans covering PolyGram employees in
Brazil and Germany, Seagram has agreed to cause PolyGram or its appropriate
subsidiary to consent to make the contributions necessary to permit
PolyGram employees who elect to do so to continue participation in such
Plans for the Applicable Pension Continuation Period, and Philips has
agreed to permit such participation, unless prohibited by applicable law,
the trustees or the independent pension board for the plans, or the terms
of the plans.
(ii) With respect to Philips Plans covering PolyGram employees in the
Netherlands, Australia and the United Kingdom, Seagram has agreed to cause
PolyGram or its appropriate subsidiary to consent to
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make the contributions necessary to permit such employees who elect to do
so to continue participation in such Plans for the Applicable Pension
Continuation Period, and Philips has agreed to permit such participation,
unless prohibited by applicable law, the trustees or the independent
pension board for the plans, or the terms of the plans. Alternatively,
Seagram will request from the independent pension board that administers
such Plan a transfer of assets and liabilities to a plan designated by
Seagram which provides benefits, features and rights no less favorable, in
the aggregate, than the existing Plan and which is maintained for the
Applicable Pension Continuation Period, provided the covered employees
consent. In addition, PolyGram will grant past service credit for all
purposes to those employees who so consent to such transfer.
(iii) With respect to Philips Plans covering PolyGram employees in
Switzerland, such employees will vest in such Plans as of the Closing Date.
Seagram will cause the appropriate PolyGram entity to create a new pension
plan which provides benefits, features and rights no less favorable, in the
aggregate, than the existing Plan and which is maintained for the
Applicable Pension Continuation Period.
(iv) Any other countries in which PolyGram employees participate in a
funded Philips Plan will be treated on a substantially equivalent basis, to
the extent possible under applicable law and tax qualification
requirements.
(v) Philips and Seagram will permit those employees participating in
the Philips Plans who are within five years of being eligible for
retirement to work at a subsidiary of Philips designated by Philips which
shall continue to employ such employees (at the employee's election) and
lease their services to PolyGram, and PolyGram will reimburse Philips for
all costs.
(vi) PolyGram will maintain any unfunded pension benefit plans without
adverse amendment or modification for the Applicable Pension Continuation
Period, other than as required under applicable law and tax qualification
requirements.
(vii) To the extent participation in the foregoing Philips Plans
cannot be continued as a matter of law (or is otherwise not permitted by
the trustees or the independent pension board for the plans, or by the
terms of the plans), Seagram has agreed to cause the appropriate PolyGram
entity to establish substantially identical plans to replicate the
benefits, rights and features of the Philips Plans and maintain such Plans
for the Applicable Pension Continuation Period; provided, however, that
Seagram will not have any obligation to continue any pension contribution
holiday or provide any grossup with respect to the tax effects resulting
from or in connection with the tax status of a Philips Plan or such
substantially identical plan.
(viii) Transfers of assets from Philips Plans to Seagram plans will be
made in an amount substantially equivalent to the aggregate projected
benefit obligations of such plans, as agreed upon by actuaries of Philips,
Seagram, and PolyGram. To the extent new or substantially identical plans
are created after the Closing Date, Seagram will cause such pension plans
to credit employees with all past service credit for purposes of vesting,
eligibility to participate and benefit accrual (other than if such credit
results in a duplication of benefits).
Except as provided in the Offer Agreement or as otherwise agreed, Philips has
agreed to retain all liabilities with respect to all employees under all benefit
plans that are sponsored or are being maintained or contributed to, or required
to be contributed to, by Philips or any of its subsidiaries (excluding PolyGram
and its subsidiaries). PolyGram, Philips and Seagram have agreed to cooperate
reasonably during the period prior to the Closing Date to ensure the continuity
of the workforce of PolyGram and its subsidiaries and to preserve the human
resources of PolyGram and its subsidiaries. The accrued benefit (as of the
Closing Date) under each pension benefit plan for each PolyGram employee shall
be fully vested as of the Closing Date.
TERMINATION OF INTERCOMPANY AGREEMENTS
PolyGram and Philips have agreed that, as of the Closing Date, certain
agreements between Philips or any of its subsidiaries (other than PolyGram and
its subsidiaries), on the one hand, and PolyGram or any of its subsidiaries, on
the other hand, will remain in effect subsequent to the Closing Date as
contemplated by the Offer Agreement, while other such agreements will be
terminated with no further obligations or liabilities on the part of PolyGram or
Philips or any of their respective subsidiaries thereunder (other than the
obligation to
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pay for goods, services or other assets on an arm's length basis provided
thereunder prior to the Closing Date). Except with respect to those agreements
between Philips and PolyGram and their respective affiliates that will remain in
effect subsequent to the Closing Date, and subject to Seagram's acceptance of
Tendered Shares pursuant to the Offer, (i) Philips, on behalf of itself and its
subsidiaries and affiliates (other than PolyGram and its subsidiaries), has
agreed to release and discharge and indemnify and hold harmless PolyGram and its
subsidiaries and their successors and assigns from all actions, causes of
action, suits, debts, dues, sums of money, accounts, claims and demands owed by
PolyGram and its subsidiaries to Philips and its subsidiaries and affiliates
(other than PolyGram and its subsidiaries), by reason of any matter, cause,
contract, course of dealing or thing whatsoever arising during, or in respect
of, the period on or before the Closing Date, and (ii) PolyGram, on behalf of
itself and its subsidiaries, has agreed to release and discharge and indemnify
and hold harmless Philips and its subsidiaries (other than PolyGram and its
subsidiaries) and their successors and assigns from all actions, causes of
action, suits, debts, dues, sums of money, accounts, claims and demands owed by
Philips and its subsidiaries to PolyGram and its subsidiaries and affiliates
(other than Philips and its subsidiaries), by reason of any matter, cause,
contract, course of dealing or thing whatsoever arising during, or in respect
of, the period on or before the Closing Date.
LICENSE AGREEMENT
Effective as of the Closing, Philips has agreed to grant a license to
PolyGram or one or more affiliates of PolyGram designated by Seagram (or upon
the mutual agreement of Philips and Seagram, to amend the existing license
agreements between Philips and PolyGram and its subsidiaries) to use the
wordmark "Philips" and the Philips shield emblem (the "Philips Trademarks") on a
royalty-free, worldwide, non-exclusive basis, solely for the purpose of
permitting PolyGram and its affiliates to market, sell and distribute (either in
(i) a tangible format such as compact discs, compact cassettes and audio-visual
sound and image carriers or (ii) an intangible format such as the internet) (a)
classical music or (b) other types or categories of music that are identical or
similar in nature to those types or categories marketed, sold or distributed by
PolyGram or affiliates under the Philips Trademarks prior to the date of the
Offer Agreement. Such license will contain other terms customary for a
commercial license between unrelated parties concerning similar trademarks and
contemplated use which fairly balances the needs and interests of licensor and
licensee, provided that the terms of such license will reasonably take into
account the specific position of the Philips Trademarks as housemarks. The term
of such license will expire on the tenth anniversary of the Closing Date,
provided that the term will be extended to the extent required to honor, and
solely with respect to, binding obligations of PolyGram or its affiliates to
third parties contained in agreements entered into by PolyGram or any of its
affiliates prior to the date of the Offer Agreement (or in extensions of any
such agreement entered into after the date of the Offer Agreement so long as
such extension is entered into pursuant to a renewal option exercised by any
such third party that is contained in any such agreement as of the date of the
Offer Agreement). Without limiting the generality of PolyGram's rights regarding
the marketing, selling and distribution of music (as described above), PolyGram
will also be entitled to use for the maximum period of ten years the name
"Philips" as part of its trading style or trade name, but appropriately
clarifying that it is not part of the Philips group, and provided that the name
Philips is followed by a descriptive designation of the activity of PolyGram's
pertinent division such as "Philips Classics" or "Philips Music Group." The name
will not form part of PolyGram's statutory corporate name nor will the use of
the trading style containing the name "Philips" be incorporated in the articles
of association or similar governing instruments of PolyGram. The parties have
agreed to negotiate the license described above in good faith as soon as
practicable following the date of the Offer Agreement and such negotiations are
continuing as of the date of this Offering Circular/Prospectus.
Prior to the fifth anniversary of the Closing Date, neither Philips nor any
of its subsidiaries (other than PolyGram and its subsidiaries) may use, or grant
any license to use (except as contemplated by the Offer Agreement), the Philips
Trademarks in connection with the marketing, sale or distribution of music;
provided, however, that Philips and its subsidiaries may (i) use, or grant any
license to use, the Philips Trademarks on data carriers or other products,
whether in a tangible format or an intangible format (as described above), which
contain music or music effects of whatever kind or category and which music or
music effects serve a supporting, incidental or non-primary function or use or
(ii) use, or grant any license to use, the Philips
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Trademarks on special releases made and produced primarily in relation to the
promotion and advertising of other non-music Philips branded products.
Commencing on the fifth anniversary of the Closing Date and ending on the
tenth anniversary of the Closing Date, neither Philips nor any of its
subsidiaries (other than PolyGram and its subsidiaries) may use, or grant any
license to use (except as contemplated by the Offer Agreement), the Philips
Trademarks in connection with the marketing, sale or distribution of music;
provided, however, that Philips and its subsidiaries may (i) use the Philips
Trademarks to market, sell or distribute music except for classical music, (ii)
use, or grant any license to use, the Philips Trademarks on data carriers or
other products, whether in a tangible format or an intangible format, which
contain music or music effects of whatever kind or category and which music or
music effects serve a supporting, incidental or non-primary function or use or
(iii) use, or grant any license to use, the Philips Trademarks on special
releases made and produced primarily in relation to the promotion and
advertising of other non-music Philips branded products.
Until the tenth anniversary of the Closing Date, neither Philips nor any of
its subsidiaries (other than PolyGram and its subsidiaries) may use, or grant
any license to use, the wordmarks "Philips Classics", "Philips Music Group" or
"Philips Classics Productions" for any business purpose or in any manner. Except
as provided in this paragraph and the two preceding paragraphs, the Offer
Agreement does not limit Philips' right to use, or grant any license to use, the
Philips Trademarks for any business purpose or in any manner.
Pursuant to the Offer Agreement, PolyGram will reimburse Philips for all
its reasonable out-of-pocket costs relating to the filing, registration or
recordation of any new license agreement contemplated above, and for Philips'
reasonable attorney's fees incurred in connection with any action required to be
taken by Philips relating to such filing, registration or recordation. Such
filing, registration or recordation will only be made in those countries where
required by local law, such countries to be determined by mutual agreement of
Philips and Seagram.
INDEMNIFICATION AND INSURANCE
Seagram has agreed to (i) indemnify, defend and hold harmless, to the
fullest extent lawful, each person who is now, or has been at any time prior to
the date of the Offer Agreement or who becomes prior to the Closing Date, an
officer, director, employee or agent of PolyGram or any of its subsidiaries
against all losses, claims, damages, costs, reasonable expenses, liabilities or
judgments or amounts that are paid in settlement with the approval of Seagram
(which approval shall not be unreasonably withheld) in connection with any
claim, action, suit, proceeding or investigation based in whole or in part on or
arising in whole or in part out of the fact that such person is or was a
director, officer, employee or agent of PolyGram or any of its subsidiaries,
whether pertaining to any matter existing now or occurring at or prior to the
purchase of the Tendered Shares pursuant to the Offer and (ii) cause to be
maintained in effect for a period of six years after the Closing Date, the
current policies of directors' and officers' liability insurance and fiduciary
liability insurance maintained by PolyGram; provided, that Seagram may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, no less
advantageous to the insured) with respect to claims arising from facts or events
that occurred on or before the Closing Date; provided, however, that in no event
will Seagram be required to expend in any one year an amount in excess of 150%
of the annual premiums currently paid by PolyGram for such insurance; and,
provided, further, that if the annual premiums of such insurance coverage exceed
such amount, Seagram will be obligated to obtain a policy with the greatest
coverage available for a cost not exceeding such amount.
To the extent the indemnity described in the preceding paragraph or under
"-- Post-Closing Restructuring," is not available or adequate, Philips has
agreed to indemnify, defend and hold harmless, to the fullest extent lawful,
each person who is now, or has been at any time prior to the date of the Offer
Agreement or who becomes prior to the Closing Date an officer, director,
employee or agent of PolyGram against all losses, claims, damages, costs,
reasonable expenses, liabilities or judgments or amounts that are paid in
settlement with the approval of Philips (which approval shall not be
unreasonably withheld) in connection with any claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part out of
the fact that such person is or was a director, officer, employee or agent of
PolyGram and pertaining to any matter arising out of the negotiation, approval,
performance, consummation or disclosure of the Offer
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Agreement, including any action or transaction contemplated by or undertaken
pursuant to the provisions described under "-- Post-Closing Restructuring."
LISTING OF ISSUED SHARES
Seagram will use its best efforts to cause the Seagram Shares to be issued
as Share Consideration to be authorized for listing, upon official notice of
issuance, on the NYSE and the TSE.
INFORMATIONAL MEETING
In accordance with the requirements of the Dutch Merger Code, prior to the
Closing, PolyGram will duly call, give notice of, convene and hold the Special
Meeting, which will constitute an informational meeting under Dutch Law. See
"Summary -- PolyGram Shareholder Special Meeting."
SALE OF FILM DIVISION
As required by the Offer Agreement, PolyGram has retained Goldman Sachs as
principal financial advisor for the purpose of selling the film division of
PolyGram as promptly as practicable. If the sale is closed prior to the Closing,
the sale proceeds will be retained in PolyGram for the benefit of Seagram. Prior
to Closing, Goldman Sachs will report to a three member committee (consisting of
one designee of each of Seagram, PolyGram and Philips). This committee will
manage the sale process and will act by majority vote; provided, however, that
Seagram will be entitled to veto, in Seagram's sole discretion, any decision of
the committee including approval of any specific proposal to sell the film
division (including the sale price or terms of any sale) and any determination
as to the assets, liabilities or businesses to be included in or excluded from
any sale. Each of Seagram, PolyGram and Philips (to the extent applicable) has
agreed to use its reasonable best efforts to effect the foregoing, including
implementing the actions approved by the committee. Effective as of the Closing,
the committee will be dissolved and Seagram will have sole authority to manage
the sale of or to retain the film division (or any assets or business included
therein). PolyGram has agreed to provide reasonable assistance and cooperate
with Seagram in connection with the foregoing, including preparation of audited
financial statements and informational materials to be delivered to prospective
purchasers. See "PolyGram N.V. -- Recent Developments."
CONTRIBUTION
Pursuant to the Offer Agreement, immediately prior to the Closing, Philips
will contribute $90 million in cash to PolyGram (after giving effect to any
applicable taxes payable by PolyGram arising out of such contribution) unless
Seagram, Philips and PolyGram mutually agree to an alternative arrangement,
provided, however, that Philips will not be entitled to any capital stock of
PolyGram or any other consideration from PolyGram in exchange for such
contribution.
TERMINATION
The Offer Agreement may be terminated at any time prior to the Closing Date
by action taken or authorized by the Board of Directors (in the case of Seagram)
or the Board of Management and the Supervisory Board (in the case of PolyGram or
Philips):
(i) By mutual written consent of Seagram, PolyGram and Philips;
(ii) By any party if the Closing Date has not occurred on or
before the Termination Date; provided, however, that the right to terminate
described in this clause (ii) will not be available to (a) Seagram, if the
failure of Seagram to perform its obligations under the Offer Agreement has
to any extent been the cause of, or resulted in, the failure of the Closing
Date to occur on or before the Termination Date or (b) Philips or PolyGram,
if the failure of Philips or PolyGram to perform its obligations under the
Offer Agreement has to any extent been the cause of, or resulted in, the
failure of the Closing Date to occur on or before the Termination Date;
(iii) By any party if any governmental entity (a) has issued an
order, decree or ruling or taken any other action (which the parties have
used their best efforts to resist, resolve or lift, as applicable, in
accordance with the Offer Agreement) permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by the Offer Agreement,
and such order, decree, ruling or other action has
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become final and nonappealable or (b) has failed to issue an order, decree
or ruling or to take any other action (which order, decree, ruling or other
action the parties have used their best efforts to obtain, in accordance
with the Offer Agreement), which is necessary to fulfill the conditions
described in clauses (d) and (e) under "The Offer -- Certain Conditions of
the Offer" and such denial of a request to issue such order, decree, ruling
or take such other action has become final and nonappealable; provided,
however, that the right to terminate described in this clause (iii) will
not be available to any party whose failure to comply with its obligations
described under "-- Best Efforts" has to any extent been the cause of such
action or inaction;
(iv) By Seagram if (a) any of the representations and warranties
of PolyGram or Philips set forth in the Offer Agreement that are qualified
by reference to a Material Adverse Effect are not true and correct, or any
such representations and warranties that are not so qualified are not true
and correct in any respect that is reasonably expected to result in a
Material Adverse Effect, in each case as if such representations and
warranties were made at the time of such determination (except to the
extent any such representation or warranty speaks to an earlier date), and
which failure to be so true and correct is not reasonably likely to be
cured by the Termination Date, (b) PolyGram or Philips has failed to
perform in any material respect any obligation or to comply in any material
respect with any agreement or covenant of PolyGram or Philips to be
performed or complied with by it under the Offer Agreement, and which
failure is not reasonably likely to be cured by the Termination Date, or
(c) since December 31, 1997, except as disclosed in the PolyGram SEC
Reports publicly available prior to June 21, 1998 or in PolyGram's
disclosure schedules to the Offer Agreement, there has occurred any event,
change or development which has had or would be reasonably expected to
result in a Material Adverse Effect, and which event, change or development
is not reasonably expected to be cured by the Termination Date; provided,
that any termination described in this clause (iv) will be effective as of
the next scheduled Expiration Date so long as any failure described in
clause (a) or (b) or event, change or development described in clause (c)
has not, in fact, been cured prior to such Expiration Date;
(v) By Philips if (a) any of the representations and warranties
of Seagram set forth in the Offer Agreement that are qualified by reference
to a Seagram Material Adverse Effect are not true and correct, or any such
representations and warranties that are not so qualified are not true and
correct in any respect that is reasonably expected to result in a Seagram
Material Adverse Effect, in each case as if such representations and
warranties were made at the time of such determination (except to the
extent any such representation or warranty speaks to an earlier date), and
which failure to be so true and correct is not reasonably likely to be
cured by the Termination Date, (b) Seagram has failed to perform in any
material respect any obligation or to comply in any material respect with
any agreement or covenant of Seagram to be performed or complied with by it
under the Offer Agreement, and which failure is not reasonably likely to be
cured by the Termination Date, or (c) since December 31, 1997, except as
disclosed in the Seagram SEC Reports publicly available prior to June 21,
1998 or in Seagram's disclosure schedules to the Offer Agreement, there has
occurred any event, change or development which has had or would be
reasonably expected to result in a Seagram Material Adverse Effect, and
which event, change or development is not reasonably expected to be cured
by the Termination Date; provided, that any termination described in this
clause (v) will be effective as of the second business day immediately
preceding the next scheduled Expiration Date so long as any failure
described in clause (a) or (b) or event, change or development described in
clause (c) has not, in fact, been cured prior to the second business day
prior to such Expiration Date;
(vi) By Seagram if Philips has failed to perform or comply with
any material agreement or covenant in the Tender Agreement or the Voting
Agreement and which failure is not cured within 5 days following delivery
to Philips of notice thereof; provided, that the foregoing notice
requirement will not be applicable if such breach is not capable of being
cured;
(vii) By Philips if Seagram has failed to perform or comply with
any material agreement or covenant in the Tender Agreement or the Voting
Agreement and which failure is not cured within 5 days following delivery
to Seagram of notice thereof; provided, that the foregoing notice
requirement will not be applicable if such breach is not capable of being
cured; or
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(viii) By Philips, if there has occurred any event described in
the third paragraph under "-- Stockholders Agreement -- Term and
Termination."
"PolyGram SEC Reports" means all reports, schedules, forms, statements and
other documents required to be filed by PolyGram with the SEC since January 1,
1996 (including all exhibits thereto and any voluntary reports on Form 6-K).
"Seagram Material Adverse Effect" means any effect that, individually or in
the aggregate with all other adverse effects, is materially adverse to the
condition (financial or otherwise), business, assets or results of operations of
Seagram and its subsidiaries taken as a whole, other than any effect resulting
from (i) changes in general economic conditions, (ii) the announcement and
performance of the Offer Agreement and the transactions contemplated thereby and
compliance with the covenants set forth in the Offer Agreement, (iii) changes or
developments in the music and film industry generally and (iv) any actions
required under the Offer Agreement (subject to the limitations described in the
sixth paragraph under "-- Offer Agreement -- Best Efforts") to obtain any
approval or authorization under applicable antitrust or competition laws for the
consummation of the Offer.
"Seagram SEC Reports" means all reports, schedules, forms, statements and
other documents required to be filed by Seagram with the SEC since January 1,
1996 (including all exhibits thereto).
EFFECT OF TERMINATION
In the event of termination of the Offer Agreement as provided under
"-- Offer Agreement -- Termination," the Offer Agreement will become void and
there will be no liability or obligation on the part of Seagram, Philips or
PolyGram except with respect to (i) certain provisions of the Offer Agreement
regarding the payment of broker's or finder's fees, the payment of expenses (see
"-- Fees and Expenses") and certain other provisions and (ii) the provisions
described under this "-- Effect of Termination" section; provided, however, the
foregoing will not relieve any party for any breach of any representation,
warranty, covenant or agreement in the Offer Agreement.
Notwithstanding anything contained in the Offer Agreement to the contrary,
Seagram has agreed that, in the event that the Offer Agreement is terminated as
described above under "-- Offer Agreement -- Termination," (i) Seagram will not
be entitled to waive the Minimum Condition without the prior written consent of
Philips and PolyGram and (ii) unless PolyGram otherwise agrees, Philips may not
tender its PolyGram Shares in the Offer and Philips will withdraw any of its
PolyGram Shares previously tendered in the Offer.
FEES AND EXPENSES
Whether or not the transactions contemplated by the Offer Agreement are
consummated, all Expenses incurred in connection with the Offer Agreement and
the transactions contemplated thereby will be paid by the party incurring such
Expenses, except that all Expenses incurred in connection with the filing,
printing and mailing of the Offer Documents will be paid by Seagram. As used in
the Offer Agreement, "Expenses" includes all out-of-pocket expenses (including
all fees and expenses of counsel, accountants, investment bankers, experts and
consultants to a party to the Offer Agreement and its affiliates) incurred by a
party or on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of the Offer Agreement and
the transactions contemplated thereby, including the preparation, printing,
filing and mailing of the Offer Documents and the solicitation of stockholder
approvals and all other matters related to the transactions contemplated
thereby.
AMENDMENTS AND WAIVERS
The Offer Agreement may be amended by the parties thereto, but only
pursuant to an instrument in writing signed on behalf of each of the parties
thereto. At any time prior to the Closing Date, the parties to the Offer
Agreement, by action taken or authorized by the Board of Directors, in the case
of Seagram, and the Board of Management and the Supervisory Board, in the case
of PolyGram and Philips, may, to the extent legally allowed and not inconsistent
with the provisions of the Offer Agreement, (a) extend the time for the
performance of any of the obligations or other acts of the other parties
thereto, (b) waive any inaccuracies in
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the representations and warranties contained therein or in any document
delivered pursuant thereto and (c) waive compliance with any of the agreements
or conditions contained therein. Any agreement on the part of a party to any
such extension or waiver will be valid only if set forth in a written instrument
signed on behalf of such party. The failure of any party to assert any of its
rights under the Offer Agreement or otherwise will not constitute a waiver of
those rights.
TENDER AGREEMENT
TENDER AND ELECTION
Pursuant to the Tender Agreement, Philips has agreed, for so long as the
Offer Agreement is in effect, to validly tender pursuant to and in accordance
with the terms of the Offer and not withdraw such tender of all of its PolyGram
Shares. Pursuant to the Offer Agreement, Philips may terminate the Offer
Agreement in the circumstances described under "-- Offer
Agreement -- Termination," including certain circumstances relating to a Seagram
Material Adverse Effect as described in paragraph (v) thereunder. Accordingly,
the obligation of Philips to tender and not withdraw such tender of its PolyGram
Shares is effectively subject to certain conditions which may be waived by
Philips in its sole discretion. If the Offer Agreement is terminated in
accordance with its terms, including by Philips as described above, Seagram will
not be able to consummate the Offer without the consent of Philips and PolyGram
because (i) Philips will not be able to tender its PolyGram Shares in the Offer
without the consent of PolyGram and (ii) Seagram will not be entitled to waive
the Minimum Condition without the consent of Philips and PolyGram. See "-- Offer
Agreement -- Termination." In addition, Philips has agreed to elect to receive
Share Consideration in the Offer in respect of all of its PolyGram Shares. See
"The Offer -- Election Procedure" and "The Offer -- Limited Availability of
Share Consideration."
RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE
Philips has agreed, while the Tender Agreement is in effect, and except as
contemplated thereby, not to, directly or indirectly, (i) offer to sell, sell,
tender, transfer, pledge, encumber, assign or otherwise dispose of
(collectively, "Transfer") or enter into any contract, option or other
arrangement or understanding with respect to or consent to the Transfer of, any
of its PolyGram Shares, or any interest therein, to any person other than
pursuant to the Offer, (ii) except as contemplated by the Voting Agreement,
grant any proxies or powers of attorney with respect to its PolyGram Shares,
deposit any of its PolyGram Shares into a voting trust or enter into a voting
agreement with respect to any of its PolyGram Shares, or any interest in the
foregoing, (iii) take any action that would make any representation or warranty
of Philips contained in the Tender Agreement untrue or incorrect or have the
effect of preventing or disabling Philips from performing its obligations under
the Tender Agreement or (iv) commit or agree to take any of the foregoing.
REPRESENTATIONS AND WARRANTIES
The Tender Agreement contains customary representations and warranties of
Seagram relating to, among other things, (i) organization, standing and similar
corporate matters, (ii) validity and nonassessability of the Seagram Shares to
be issued to Philips as Share Consideration, (iii) authorization, execution,
delivery and enforceability of the Tender Agreement, (iv) absence of conflicts
with agreements and (v) governmental approvals.
The Tender Agreement also contains customary representations and warranties
of Philips relating to, among other things, (i) ownership and good title to the
PolyGram Shares owned by Philips, (ii) organization, standing and similar
corporate matters, (iii) authorization, execution, delivery and enforceability
of the Tender Agreement, (iv) absence of conflicts with agreements and (v)
governmental approvals.
Except for the representations and warranties of Seagram relating to the
validity and nonassessability of the Seagram Shares to be issued to Philips as
Share Consideration and the representations and warranties of Philips relating
to Philips' ownership and good title to its PolyGram Shares, which shall survive
the Closing without limitation as to time, all of the representations and
warranties of Philips and Seagram contained in the Tender Agreement shall expire
on the Closing Date.
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TERMINATION
The Tender Agreement and Philips' obligation, for so long as the Offer
Agreement is in effect, to validly tender pursuant to and in accordance with the
terms of the Offer and not withdraw such tender shall terminate on the date on
which the Offer Agreement is terminated in accordance with its terms.
VOTING AGREEMENT
The Voting Agreement provides that during the time the Offer Agreement is
in effect, Philips will vote all of its PolyGram Shares (i) against any action
or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation or agreement of
PolyGram or Philips under the Offer Agreement or of Philips under the Voting
Agreement and (ii) against any action or agreement (other than the Offer
Agreement or the transactions contemplated thereby) that could reasonably be
expected to impede, interfere with, delay, postpone or attempt to discourage the
Offer, including, but not limited to, (a) any acquisition or sale of all or any
significant portion of the assets of, or any equity interest in, PolyGram or any
of its subsidiaries or any tender offer (including a self tender offer) or
exchange offer, merger, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving PolyGram or any of its
subsidiaries; (b) any other action or agreement that could be reasonably
expected to materially diminish the benefits to Seagram of the transactions
contemplated by the Voting Agreement and by the Offer Agreement; (c) any change
in the key management, Supervisory Board or Board of Management of PolyGram,
except as otherwise agreed to in writing by Seagram prior to such change; (d)
any material change in the present capitalization or dividend policy of
PolyGram; or (e) any other material change in PolyGram's corporate structure or
business and (iii) in favor of any action or agreement or proposal submitted in
any general meeting of PolyGram shareholders that is necessary or desirable in
connection with the transactions contemplated in the Offer Agreement, provided,
however, that this paragraph does not require Philips to vote any PolyGram
Shares with respect to any matters set forth in or contemplated by the
provisions of the Offer Agreement described under "-- Offer
Agreement -- Post-Closing Restructuring" except to the extent Philips is
required to so vote, in accordance with such provisions. Philips has further
agreed not to enter into any agreement, arrangement or understanding with any
person the effect of which would be inconsistent with any of the foregoing.
Philips has granted to Seagram an irrevocable proxy to vote its PolyGram Shares
as described in this paragraph, but otherwise in Seagram's discretion; provided,
however, that such proxy does not extend to or encompass any vote of Philips'
PolyGram Shares with respect to any matters set forth in or contemplated by the
provisions of the Offer Agreement described under "-- Offer
Agreement -- Post-Closing Restructuring."
STOCKHOLDERS AGREEMENT
Pursuant to the Stockholders Agreement, Seagram and Philips have agreed to
certain board, voting, transfer, standstill, registration and other rights and
obligations of such parties relating to Seagram following the Closing.
SEAGRAM BOARD OF DIRECTORS
Pursuant to the Stockholders Agreement, effective as of the Closing,
Seagram has agreed to appoint the Designee to the Seagram Board of Directors.
After the Closing, Philips will be entitled to designate its then Chief
Executive Officer as its Designee for nomination for election to the Seagram
Board of Directors for so long as the Applicable Percentage is at least 5%.
"Applicable Percentage" means, at any time, the ratio, expressed as a
percentage, of (i) the number of Voting Shares beneficially owned by Philips and
any direct or indirect wholly-owned subsidiary of Philips (a "Permitted
Transferee") to (ii) the total then-outstanding Voting Shares. "Voting Shares"
means any securities of Seagram the holders of which are generally entitled to
vote for members of the Seagram Board of Directors and any securities issued in
substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.
The Stockholders Agreement also provides that at any time that Philips is
entitled to designate a director thereunder, Philips will be entitled to appoint
one ex officio member of the Seagram Board of Directors, who
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will be entitled to notice of and to attend meetings of the Seagram Board of
Directors and to receive all information circulated or made available to the
Seagram Board of Directors. Such ex officio member of the Seagram Board of
Directors will not be deemed to be a member of the Seagram Board of Directors
for purposes of determining a quorum or for any other purpose, and will not have
the right to vote on any matter voted on by the Seagram Board of Directors.
Seagram has agreed to use its best efforts to cause the election of the
Designee to the Seagram Board of Directors, including nominating such individual
to be elected to the Seagram Board of Directors.
For so long as Philips has an ex officio designee to the Seagram Board of
Directors pursuant to the Stockholders Agreement, such individual will be
entitled to notice of and to attend meetings of the Audit Committee of the
Seagram Board of Directors (the "Audit Committee") and to receive all
information circulated or made available to the members of the Audit Committee.
Such individual will not be deemed to be a member of the Audit Committee for
purposes of determining a quorum or for any other purpose, and will not have the
right to vote on any matter voted on by such committee.
VOTING
Philips has agreed to vote (and to cause each of its affiliates that
beneficially own Voting Shares to vote), any Voting Shares beneficially owned by
it to cause each of the nominees designated by the Seagram Board of Directors to
be elected to the Seagram Board of Directors; provided, however, that the
foregoing will not be applicable if Seagram has not complied with its
obligations described in the first and fourth paragraphs under "-- Seagram Board
of Directors."
In connection with any vote of the shareholders of Seagram relating to any
matter other than election of directors, unless Seagram otherwise consents in
writing, Philips has agreed to vote (and to cause each of its affiliates that
beneficially own Voting Shares to vote), any Voting Shares beneficially owned by
it, at Philips' option, either proportionately on the same basis as the other
holders of Voting Shares so vote or as recommended by the Seagram Board of
Directors; provided, that Philips will be entitled to vote its shares in its
discretion (and not in such proportion or as so recommended) with respect to any
transaction submitted to holders of Voting Shares pursuant to which Voting
Shares beneficially owned by Philips or any of its Permitted Transferees will
not be entitled to receive (or will not be permitted to elect to receive on an
equitable basis with the Voting Shares held by all other shareholders), in such
transaction, the same consideration as Voting Shares held by all other
shareholders of Seagram.
RESTRICTIONS ON TRANSFER DURING TWO YEARS FOLLOWING THE CLOSING
Philips has agreed that, without the consent of Seagram, during the period
commencing on the Closing and ending on the second anniversary thereof, Philips
will not, and will cause its Permitted Transferees not to, transfer any Voting
Shares beneficially owned by Philips or any of its Permitted Transferees except
(i) to any Permitted Transferee, (ii) as described under "-- Required Sale" (so
long as such transfer is effected in a manner which would be permitted by the
provision described under "-- Restrictions on Transfer after Two Years following
the Closing" if such transfer were to occur after the second anniversary of the
Closing), or (iii) pursuant to a bona fide third party tender offer or exchange
offer which was not induced directly or indirectly by Philips or any of its
affiliates and (a) which is approved by the Seagram Board or (b) in which
Philips would be disadvantaged, in any material respect, if Philips failed to
tender because the offer is a partial tender offer for less than all of the
outstanding Common Shares or a tender offer for all Common Shares with no
undertaking by the offeror or its affiliates for a second step or similar
"back-end" transaction providing for the same consideration as in the offer;
provided, that all conditions to such tender offer (other than the minimum
condition) are reasonably likely to be satisfied at the scheduled expiration
date and the minimum condition is reasonably likely to be satisfied at the
scheduled expiration date for such offer even if Philips does not tender (any
such offer, a "Permitted Tender Offer"). "Common Shares" means Seagram Shares
and any securities issued in substitution therefor, in connection with any stock
split, dividend or combination, or any reclassification, recapitalization,
merger, consolidation, exchange or other similar reorganization.
RESTRICTIONS ON TRANSFER AFTER TWO YEARS FOLLOWING THE CLOSING
Philips has also agreed that, without the consent of Seagram, following the
second anniversary of the Closing, Philips will not, and will cause its
affiliates not to, transfer any Voting Shares except (i) to any Permitted
Transferee, (ii) pursuant to a Permitted Tender Offer, (iii) pursuant to an
Underwritten Offering,
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(iv) pursuant to a Private Placement or (v) pursuant to a Market Sale. Under the
Stockholders Agreement, (a) "Underwritten Offering" means the sale of Common
Shares for cash in an underwritten public offering or block trade or in an
offering effected pursuant to Regulation S under the U.S. Securities Act, which,
in any case, is designed to effect a broad distribution of such Common Shares in
which no purchaser is intended to acquire 4% or more of the Common Shares and
also includes a sale of debt securities of Philips or any Permitted Transferee
for cash, which debt securities are exchangeable for Common Shares, at the
option of the holder or the issuer of such debt securities or as required by the
terms of such debt securities, and which sale is effected pursuant to an
offering under Rule 144A and Regulation S which is designed to effect a broad
distribution of such debt securities in which no purchaser is intended to
acquire Voting Share equivalents equal to or greater than 4% of the Common
Shares, (b) "Private Placement" means one or a series of related
privately-negotiated transfers pursuant to which an insurance company,
foundation or charitable organization, pension fund or other employee benefit
plan, broker dealer, investment company, private investment fund (provided that
such private investment fund is not, and will not in connection with such
Private Placement be, required to file a Schedule 13D regarding Voting Shares),
investment adviser, bank, savings bank, savings association or other financial
institution will acquire up to 4% of the then outstanding Voting Shares or
Voting Share equivalents; and (c) "Market Sale" means a sale or other transfer
which is effected in accordance with the provisions of Rule 144 under the U.S.
Securities Act.
RIGHT OF FIRST OFFER
Any transfer of Voting Shares by Philips or its Permitted Transferees
pursuant to a Permitted Tender Offer, an Underwritten Offering, a Private
Placement, a Market Sale or otherwise consented to by Seagram will be subject to
the right of first offer provisions of the Stockholders Agreement in favor of
Seagram, except that, subject to compliance with certain provisions of the
Stockholders Agreement relating to Permitted Transferees, such right of first
offer provisions will not apply to any transfer between Philips and any of its
Permitted Transferees or between Permitted Transferees. Any Permitted Transferee
will be subject to the terms and conditions of the Stockholders Agreement as if
such Permitted Transferee were Philips.
REQUIRED SALE
If, due to repurchases of Common Shares by Seagram at any time following
the Closing, the Applicable Percentage exceeds 17 1/2%, then Seagram may, at its
option, cause Philips or any Permitted Transferees to transfer Voting Shares
(subject to the provisions described in the fourth paragraph under
"-- Standstill" below) during the 180 day period commencing following notice by
Seagram of its exercise of such option; provided that such 180 day period will
be extended to the extent Philips has made a registration or prospectus request
pursuant to the Stockholders Agreement for the period following receipt of
notice of Seagram's election of its rights to require any such transfer until
such registration statement has been declared effective and a final prospectus,
if applicable, has been receipted, but only if such request has been made by
Philips within 30 days following receipt of such notice. With respect to any
such transfer, Philips will select the method or methods of transfer, which
methods will consist of one or more of the following: a Private Placement, an
Underwritten Offering or a Market Sale.
STANDSTILL
Philips has agreed that Philips will not, and will cause each of its
subsidiaries not to, directly or indirectly, acquire, or agree to acquire, by
purchase or otherwise, beneficial ownership of any Voting Shares (except
pursuant to the Offer or by way of stock dividends, stock reclassifications or
other distributions or offerings made available to holders of Voting Shares
generally).
The restrictions described in the preceding paragraph will terminate in the
event (i) the Seagram Board approves a tender offer for 50% or more of the
outstanding Voting Shares (provided that if such offer is withdrawn or expires
without being consummated, such restrictions will be reinstated) or (ii) it is
publicly disclosed that Voting Shares representing 33 1/3% of the voting power
have been acquired by any person or group (other than Philips or an affiliate
thereof or any group in which Philips or any affiliate is a member) which does
not own more than 20% of the Voting Shares immediately following the Closing.
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Under the Stockholders Agreement, Philips has represented and warranted
that neither it nor any of its subsidiaries beneficially own any Voting Shares
or Voting Share equivalents as of the date of the Stockholders Agreement and
agreed that, as of the Closing, except for Common Shares issued pursuant to the
Offer, neither Philips nor any of its subsidiaries will beneficially own any
Voting Shares or Voting Share equivalents.
Philips has also agreed that, except as expressly set forth in the
provisions of the Stockholders Agreement described under "-- Seagram Board" and
"-- Voting," Philips will not, and will cause its subsidiaries not to, directly
or indirectly, alone or in concert with others, unless specifically requested in
writing by the Chief Executive Officer of Seagram or by a resolution of a
majority of the directors of Seagram, take any of the actions set forth below
(or take any action that would require Seagram to make an announcement regarding
any of the following); provided, however, that Philips will not be required to
take any such action as a result of the request of Seagram:
(i) effect, seek, offer, engage in, propose (whether publicly or
otherwise) or cause or participate in, or assist any other person to
effect, seek, engage in, offer or propose (whether publicly or otherwise)
or participate in:
(a) any acquisition of beneficial ownership of Voting Shares which
would result in a breach of the provisions described above in the first
paragraph of this "-- Standstill" section;
(b) any tender or exchange offer, merger, consolidation, share
exchange, business combination, recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction involving
Seagram or any material portion of its business or any purchase of all
or any substantial part of the assets of Seagram or any material portion
of its business; or
(c) any "solicitation" of "proxies" (as such terms are used in the
proxy rules of the SEC but without regard to the exclusion set forth in
Rule 14a-1(l)(2)(iv) from the definition of "solicitation") with respect
to Seagram or any of its affiliates or any action resulting in Philips,
any of its subsidiaries, or such other person becoming a "participant"
in any "election contest" (as such terms are used in the proxy rules of
the SEC) with respect to Seagram or any of its subsidiaries;
(ii) propose any matter for submission to a vote of shareholders of
Seagram or any of its affiliates;
(iii) seek election to, seek to place a representative (other than the
Designee) on, or seek the removal of, any Director, subject to certain
exceptions;
(iv) except as contemplated by the Stockholders Agreement, grant any
proxy with respect to any Voting Shares;
(v) except as contemplated by the Stockholders Agreement, execute any
written consent with respect to any Voting Shares;
(vi) form, join or participate in a group with respect to any Voting
Shares or deposit any Voting Shares in a voting trust or subject any Voting
Shares to any arrangement or agreement with respect to the voting of such
Voting Shares or other agreement having similar effect;
(vii) take any other action to seek to affect the control of the
management or Board of Directors of Seagram or any of its affiliates,
including publicly suggesting or announcing its willingness to engage in or
have another person engage in a transaction that could reasonably be
expected to result in a business combination or to increase the ownership
percentage of Philips; provided, that nothing in the provisions described
in this paragraph will restrict the manner in which the Designee may (a)
vote on any matter submitted to the Seagram Board of Directors or (b)
participate in deliberations or discussions of the Seagram Board of
Directors (so long as such actions do not otherwise violate any provision
described above in the first two paragraphs of "-- Standstill" in his or
her capacity as a director so long as such action is required by the
Designee's fiduciary duty to Seagram or its shareholders or by securities
or similar laws, in each case as advised by outside counsel to the Designee
(to the extent practicable under the then-existing circumstances);
(viii) enter into any discussions, negotiations, arrangements or
understandings with any person with respect to any of the foregoing, or
advise, assist, encourage or seek to persuade others to take any action
with respect to any of the foregoing;
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(ix) disclose to any person (other than an affiliate), or otherwise
induce, encourage, discuss or facilitate, any intention, plan or
arrangement inconsistent with the foregoing or with the restrictions on
transfer set forth in the Stockholders Agreement or form any such intention
which would result in Seagram or any of its affiliates or Philips or any of
its affiliates being required to make any such disclosure in any filing
with a governmental authority or being required to make a public
announcement with respect thereto; or
(x) request Seagram or any of its affiliates, directors, officers,
employees, representatives, advisors or agents, directly or indirectly, to
amend or waive the Stockholders Agreement or the articles of amalgamation
or bylaws (or similar constituent documents) of Seagram or any of its
affiliates;
provided, however, that notwithstanding the foregoing restrictions, Philips will
be entitled to make any disclosure required by securities or similar disclosure
laws, as advised in writing by outside counsel reasonably satisfactory to
Seagram.
RESTRICTIONS FOLLOWING ANY SPIN-OFF
The Stockholders Agreement provides that in the event that, on or at any
time following the Closing, Seagram effects any spin-off of one or more of its
subsidiaries (the "Spinoff Company") to holders of Voting Shares, prior to any
such spin-off, Philips will, and Seagram will cause such Spinoff Company to,
enter into an agreement substantially identical to the Stockholders Agreement.
In the event that the spirits and wine business of Seagram becomes a separate
publicly traded company, such agreement will not subject Philips to the transfer
restrictions of the Stockholders Agreement (see "-- Restrictions on Transfer
during Two Years following the Closing" and "-- Restrictions on Transfer after
Two Years following the Closing") with respect to such Spinoff Company (except
for the provisions that restrict transfers pursuant to a tender offer or
exchange offer only to Permitted Tender Offers, and the related right of first
offer provisions).
REGISTRATION RIGHTS
The Stockholders Agreement grants Philips customary rights with respect to
the registration under the United States federal and Canadian securities laws of
offerings of Common Shares issued pursuant to the Offer Agreement and held by
Philips or any Permitted Transferee.
TERM AND TERMINATION
The Stockholders Agreement will become effective upon consummation of the
Offer and prior thereto will be of no force or effect. If the Offer Agreement is
terminated in accordance with its terms, the Stockholders Agreement will
automatically be deemed to have been terminated and will thereafter be of no
force or effect.
Subject to earlier termination as described in the next paragraph or in the
second paragraph under "-- Standstill" above, the rights and obligations of
Philips and its Permitted Transferees under the Stockholders Agreement will
terminate upon the Applicable Percentage equalling less than 5%; provided, that
certain provisions, including those described above under "-- Voting",
"-- Restrictions on Transfer during Two Years following the Closing,"
"-- Restrictions on Transfer after Two Years following the Closing" and
"-- Standstill" will automatically become effective and reinstated if, within 12
months following the date that the Applicable Percentage is less than 5%, the
Applicable Percentage equals or exceeds 5% as a result of the acquisition of
Voting Shares by Philips or any subsidiary.
In addition, the rights and obligations of Philips and its Permitted
Transferees under certain provisions, including those described above under
"-- Restrictions on Transfer during Two Years following the Closing," and
"-- Restrictions on Transfer after Two Years following the Closing" and in the
second paragraph of "-- Voting" shall terminate immediately at the time (i) any
person or group (excluding any person or group that beneficially owns more than
20% of the Voting Shares as of the date of the Stockholders Agreement) becomes
the beneficial owner of more than 25% of the Voting Shares (excluding any Voting
Shares acquired from Philips or a Permitted Transferee) if such person or group
beneficially owns more Voting Shares than any other person or group or (ii)(a)
no person or group beneficially owns more than 20% of the Voting Shares and (b)
none of Edgar M. Bronfman, Charles R. Bronfman or Edgar Bronfman, Jr. serves as
Chairman of the Board of Seagram, Co-Chairman of the Board of Seagram or Chief
Executive Officer of Seagram.
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<PAGE> 100
THE SEAGRAM COMPANY LTD.
UNAUDITED PRO FORMA FINANCIAL INFORMATION
The following Unaudited Pro Forma Consolidated Balance Sheet as of June 30,
1998 and Unaudited Pro Forma Consolidated Statement of Income for the fiscal
year ended June 30, 1998 illustrate (i) the effect of the sale of Tropicana and
the Offer as if such transactions had been consummated on June 30, 1998 for the
Unaudited Pro Forma Consolidated Balance Sheet and (ii) the effect of the sale
of Tropicana, the Offer and the other transactions described below as if each
had been consummated on July 1, 1997 for the Unaudited Pro Forma Consolidated
Statement of Income. For purposes of the following Unaudited Pro Forma
Consolidated Financial Statements, the total purchase price of the Offer of NLG
20.7 billion is converted to US Dollars at a rate of 2.00 Dutch Guilders to 1.0
US Dollar, the payment of which is reflected as Cash Consideration of $8.35
billion and the issuance of 47,904,191 Seagram Shares valued at $2.0 billion
(assuming that all PolyGram Shares are acquired in the Offer). The Offer will be
accounted for as a purchase. See "The Offer -- Accounting Treatment."
The other transactions referred to in the immediately preceding paragraph
are:
- the USA Networks Transaction on October 21, 1997, which resulted in
Universal's acquisition of an incremental 50% interest in the USA
Networks partnership, including the Sci-Fi Channel, for $1.7 billion in
cash. The USA Networks Transaction was accounted for under the purchase
method of accounting. The cost of the acquisition was allocated on the
basis of the estimated fair market value of the assets acquired and
liabilities assumed. This valuation resulted in $1.6 billion of
unallocated excess of cost over fair value of assets acquired which was
being amortized over 40 years, and
- On February 12, 1998, the sale of a 50% interest in USA Networks to USAi
and the contribution of the remaining 50% interest in USA Networks and
the majority of the television assets ("UTV") of Universal, including all
of Universal's domestic television production and distribution operations
and 50% of the international operations of USA Networks, to USANi LLC
(the "LLC") in the USAi Transaction, in which Universal received cash,
13.5 million shares of USAi (after giving effect to the 2 for 1 split of
USAi stock on March 26, 1998), consisting of approximately 7.1 million
shares of common stock and 6.4 million shares of Class B common stock
which in the aggregate represented a 10.7% equity interest in USAi at
date of acquisition, and a 45.8% interest in the LLC which is
exchangeable for USAi common stock and Class B common stock. The USAi
Transaction resulted in $82 million of unallocated excess cost over fair
value of assets acquired which is being amortized over 40 years. The
investment in the 7.1 million shares of USAi common stock held by
Universal at June 30, 1998 is accounted for at market value ($178 million
at June 30, 1998) and has an underlying historical cost of $142 million.
The investment in the 6.4 million shares of Class B common stock of USAi
is carried at its historical cost of $128 million. The investment in the
LLC is included in investments in unconsolidated companies on the
consolidated balance sheet and is accounted for under the equity method.
No adjustment has been included in the pro forma amounts for any
anticipated cost savings or other synergies.
Pursuant to the Offer Agreement, PolyGram has retained a financial advisor
for the purpose of selling PolyGram's film division as promptly as practicable.
See "Description of Transaction Agreements -- Offer Agreement -- Sale of Film
Division." On October 22, 1998, Seagram announced that it had entered into an
agreement in principle with MGM to sell certain library assets of PolyGram's
film division to a direct or indirect wholly owned subsidiary of MGM following
Seagram's acquisition of PolyGram. Discussions with other parties regarding the
sale of certain other library assets of PolyGram's film division have taken
place, and Seagram is continuing to examine strategic alternatives regarding the
film division's production and distribution operations. See "PolyGram
N.V. -- Recent Developments."
These Unaudited Pro Forma Consolidated Financial Statements should be read
in conjunction with (i) PolyGram's selected historical consolidated financial
data, set forth under "Summary -- PolyGram Selected Historical Consolidated
Financial Data"; (ii) the historical financial statements of PolyGram (including
the notes thereto) contained in PolyGram's Annual Report on Form 20-F for the
year ended
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<PAGE> 101
December 31, 1997, which is incorporated by reference herein; (iii) the PolyGram
unaudited consolidated interim financial data contained in PolyGram's Report on
Form 6-K dated July 22, 1998, which is incorporated by reference herein; and
(iv) the historical financial statements of Seagram contained in Seagram's
Annual Report on Form 10-K for the fiscal year ended June 30, 1998, as amended,
which is incorporated by reference herein.
The Unaudited Pro Forma Consolidated Financial Statements are presented for
comparative purposes only and are not intended to be indicative of actual
consolidated results of operations or consolidated financial position that would
have been achieved had the sale of Tropicana, the Offer, the USA Networks
Transaction and the USAi Transaction been consummated as of the dates indicated
above nor do they purport to indicate results which may be attained in the
future.
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<PAGE> 102
THE SEAGRAM COMPANY LTD. AND SUBSIDIARY COMPANIES
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 1998
(UNITED STATES DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
TROPICANA POLYGRAM POLYGRAM SEAGRAM
SEAGRAM PRO FORMA FINANCIAL PRO FORMA CONSOLIDATED
HISTORICAL ADJUSTMENTS STATEMENTS(F) ADJUSTMENTS PRO FORMA
---------- ----------- ------------- ----------- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets
Cash and short-term investments at $
cost................................... $ 1,174 $3,288(a) $ 119 5,207(g) $ 1,438
(8,350)(h)
Receivables, net......................... 2,155 -- 1,010 -- 3,165
Inventories.............................. 2,555 -- 135 -- 2,690
Film costs, net of amortization.......... 175 -- 204 -- 379
Deferred income taxes.................... 282 -- 181 -- 463
Prepaid expenses and other current
assets................................. 630 -- 572 (188)(i) 1,014
------- ------ ------ ------- -------
TOTAL CURRENT ASSETS................... 6,971 3,288 2,221 (3,331) 9,149(p)
------- ------ ------ ------- -------
Common stock of DuPont...................... 1,228 -- -- 1,228
Common stock of USAi........................ 306 -- 306
Film costs, net of amortization............. 1,272 333 -- 1,605
Artists' contracts, advances and other
entertainment assets..................... 761 1,116 2,800(j) 4,677
Property, plant and equipment, net.......... 2,733 394 -- 3,127
Investment in unconsolidated companies...... 3,437 105 -- 3,542
Excess of cost over fair value of assets
acquired................................. 3,076 1,056 6,695(j) 10,827
Deferred charges and other assets........... 661 58 -- 719
Net assets of discontinued Tropicana
operations............................... 1,734 (1,734)(b) -- -- --
------- ------ ------ ------- -------
$22,179 $1,554 $5,283 $ 6,164 $35,180(p)
======= ====== ====== ======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Short-term borrowings and indebtedness
payable within one year................ $ 1,653 $ 325 $ 1,707(k) $ 3,685
Accrued royalties and participations..... 702 610 -- 1,312
Payables and accrued liabilities......... 2,068 108(c) 1,310 95(l) 3,581
Income and other taxes................... 286 373(d) 84 -- 743
------- ------ ------ ------- -------
TOTAL CURRENT LIABILITIES.............. 4,709 481 2,329 1,802 9,321(p)
------- ------ ------ ------- -------
Long-term indebtedness...................... 2,225 73 3,500(m) 5,798
Accrued royalties and participations........ 421 153 -- 574
Deferred income taxes....................... 2,598 261 1,064(j) 3,923
Other credits............................... 995 229 -- 1,224
Minority interest........................... 1,915 36 -- 1,951
Shareholders' equity
Shares without par value................. 848 2,202 (2,202)(n) 2,848
2,000(o)
Cumulative currency translation
adjustments............................ (499) -- (499)
Cumulative gain on equity securities
after tax.............................. 699 -- 699
Retained earnings........................ 8,268 1,073(e) -- 9,341
------- ------ ------ ------- -------
TOTAL SHAREHOLDERS' EQUITY............. 9,316 1,073 2,202 (202) 12,389
------- ------ ------ ------- -------
$22,179 $1,554 $5,283 $ 6,164 $35,180
======= ====== ====== ======= =======
</TABLE>
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<PAGE> 103
THE SEAGRAM COMPANY LTD. AND SUBSIDIARY COMPANIES
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE FISCAL YEAR ENDED JUNE 30, 1998
(UNITED STATES DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS PRO FORMA ADJUSTMENTS
----------------- --------------------------------------------
UTV AND SEAGRAM/ POLYGRAM SEAGRAM
SEAGRAM USA USAI & USAI TROPICANA FINANCIAL POLYGRAM CONSOLIDATED
HISTORICAL NETWORKS OTHER PRO FORMA ADJUSTMENTS(W) STATEMENTS(X) ADJUSTMENTS PRO FORMA
---------- -------- ------ --------- -------------- ------------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues................ $ 9,474 $(376)(q) $ 11(s) $9,109 $5,559 $14,668
Cost of revenues........ 5,525 (232)(q) 5,293 3,045 $ 332(y) 8,670
Selling, general and
administrative
expenses.............. 3,396 (53)(q) 8(s) 3,351 2,156 169(z) 5,676
------- ----- ---- ------ ------ ------ ------- -------
Operating income........ 553 (91) 3 465 358 (501) 322(p)
Interest, net and
other............... 228 (38)(q) 21(t) 211 14 352(aa) 577
Gain on sale of Time
Warner shares......... 926 -- -- 926 926
Gain on USAi
transaction........... 360 -- -- 360 360
------- ----- ---- ------ ------ ------ ------- -------
1,611 (53) (18) 1,540 344 (853) 1,031
Provision (benefit)
for income taxes.... 638 (14) 3(u) 627 102 (249)(u) 480
Minority interest
charge (credit)..... 48 (10)(q) 6(v) 44 11 (36)(v) 19
Equity (loss) earnings
from unconsolidated
companies............. (45) 31(q) 19(r) 5 (11) (6)
------- ----- ---- ------ ------ ------ ------- -------
Income (loss) from
continuing
operations.......... $ 880 $ 2 $ (8) $ 874 $ 220 $ (568) $ 526
Income from
discontinued
Tropicana
operations, after
tax................. 66 -- -- 66 $ (66) -- -- --
------- ----- ---- ------ ------ ------ ------- -------
Net income (loss)....... $ 946 $ 2 $ (8) $ 940 $ (66) $ 220 $ (568) $ 526(p)
======= ===== ==== ====== ====== ====== ======= =======
Basic earnings per share
Income from continuing
operations.......... $ 2.51 $ 1.32
Income from
discontinued
Tropicana
operations, after
tax................. .19 --
------- -------
Net income............ $ 2.70 $ 1.32
======= =======
Diluted earnings per
share
Income from continuing
operations.......... $ 2.49 $ 1.31
Income from
discontinued
Tropicana
operations, after
tax................. .19 --
------- -------
Net income............ $ 2.68 $ 1.31
======= =======
Shares (in thousands)
Weighted average
shares
outstanding......... 349,874 47,904(o) 397,778
Dilutive potential
common shares....... 3,731 3,731
------- -------
Adjusted weighted
average shares
outstanding......... 353,605 401,509
======= =======
</TABLE>
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<PAGE> 104
NOTES TO SEAGRAM PRO FORMA
CONSOLIDATED FINANCIAL STATEMENTS
(a) Reflects the proceeds from the sale of Tropicana, after an adjustment based
upon a final determination of net indebtedness as of the closing date of
such disposition.
(b) Reflects the disposal of Tropicana net assets.
(c) Reflects transaction fees and other incremental costs related to the sale
of Tropicana.
(d) Reflects the income tax expected to be paid on the sale of Tropicana.
(e) Reflects the net gain after tax on the sale of Tropicana.
(f) The PolyGram financial statements have been converted to U.S. GAAP and
certain reclassifications have been made to conform to Seagram's account
classifications. The balance sheet has been converted at a rate of 2.0341
Dutch Guilders to 1.0 US Dollar.
(g) Reflects the cash proceeds from short term borrowings and long term
borrowings.
(h) Reflects the cash paid to PolyGram shareholders in the Offer.
(i) Reflects option premiums for the purchase of various currency options to
hedge Seagram's currency exposure given that the cash consideration
payable in the Offer is payable in Dutch Guilders. Seagram has purchased
options to sell $6.8 billion in exchange for Deutsch Marks, which are
being used as a proxy for Dutch Guilders due to the greater liquidity
available in the German currency, at strike prices equivalent to the
forward rates at the times of purchase. These options mature on various
dates near the expected close of the Offer.
(j) Reflects preliminary estimates of the revaluation of artist contracts,
catalogs and music publishing to fair value and the associated deferred
tax liability and the unallocated amount of the excess of the purchase
price over the fair value of PolyGram assets acquired. Seagram is
currently evaluating the fair value of certain assets to be acquired and
liabilities to be assumed. Upon completion of this valuation, Seagram will
make a final allocation of the excess purchase price over fair value,
which may include adjustments to the preliminary estimates referenced
above. Accordingly, the purchase accounting allocation is preliminary and
has been made solely for the purpose of developing the unaudited pro forma
consolidated financial information.
(k) Reflects the short-term borrowings to finance the Offer.
(l) Reflects financing and transaction costs incurred as a result of the
Offer.
(m) Reflects the long-term borrowings to finance the Offer.
(n) Reflects the elimination of historical PolyGram equity.
(o) Reflects the issuance of 47,904,191 Seagram Shares at $41.75 per share to
PolyGram shareholders in the Offer.
(p) Includes PolyGram's film division balances which represent 4.8% of Seagram
pro forma current assets, 1.5% of Seagram pro forma total assets, 4.9% of
Seagram pro forma current liabilities and 2.3% of Seagram pro forma total
liabilities. The operating loss and net loss for PolyGram's film division
for the twelve months ended June 30, 1998 were $102 million and $150
million, respectively.
(q) Reflects the elimination of USA Networks and the television business
contributed to the LLC. The initial 50% interest was accounted for under
the equity method of accounting, while the acquisition of the remaining 50%
interest was accounted for under the purchase method of accounting.
(r) Reflects the 45.8% equity in the net income of the LLC net of the
amortization of goodwill on the investment in the LLC over 40 years. The
interest in the LLC is accounted for under the equity method of accounting.
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<PAGE> 105
(s) Reflects distribution agreements which principally include: (1) USAi's
distribution of Universal's library and other television product and
theatrical films in domestic television markets and (2) Universal's
distribution of USAi's television product in foreign markets.
(t) Reflects the additional interest expense resulting from the increased
short-term borrowings for the payment of $1.7 billion for the incremental
50% interest in USA Networks offset by the reduction of short-term
borrowings using cash proceeds of $1.3 billion from the USAi transaction,
at an average borrowing rate of 5.4%.
(u) Reflects the income taxes provided for at the statutory income tax rate.
(v) Reflects the adjustment of interest attributable to minority shareholders
of Universal.
(w) Reflects the removal of Tropicana net income.
(x) The PolyGram financial statements for the twelve months ended June 30, 1998
have been converted to U.S. GAAP and certain reclassifications have been
made to conform to Seagram's account classifications. The income statement
has been converted to US Dollars at an average rate of 2.01812 Dutch
Guilders to one US Dollar for the twelve months ended June 30, 1998.
(y) Reflects the amortization, over periods from 14 to 20 years, of the $2.8
billion revaluation to fair value of artist contracts, catalogs and music
publishing assets as described in note (j).
(z) Reflects the amortization, over a 40 year period, of the unallocated amount
of the excess of the purchase price over the fair value of PolyGram assets
acquired as described in note (j).
(aa) Reflects the additional interest expense resulting from the increased
short-term borrowings of approximately $1,707 million at an average
borrowing rate of 6.25% and increased long-term borrowings of $3.5 billion
at an average borrowing rate of 7.0% for the payment of $8.35 billion of
the $10.35 billion purchase price to acquire 100% of PolyGram in the Offer.
The balance of the $8.35 billion payment will be funded from the net sale
proceeds from the sale of Tropicana as described in notes (a) and (b).
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THE SEAGRAM COMPANY LTD.
Financial and other information relating to Seagram, including information
relating to Seagram's directors and executive officers, is set forth in (i)
Seagram's Annual Report on Form 10-K for the fiscal year ended June 30, 1998, as
amended, and (ii) Seagram's Current Reports on Form 8-K dated July 20, 1998,
August 4, 1998, August 25, 1998, as amended, and September 1, 1998, as amended,
all of which are incorporated by reference herein and copies of which may be
obtained from Seagram as indicated under "Incorporation of Certain Documents by
Reference."
Seagram operates two core, global businesses: spirits and wine and
entertainment. Seagram's spirits and wine business is engaged principally in the
production and marketing of distilled spirits and wines, as well as coolers,
beers and mixers. The entertainment company, Universal, Seagram's 84%-owned
subsidiary, produces and distributes motion picture, television and home video
products and recorded music; and operates theme parks and retail stores.
The principal executive offices of Seagram are located at 1430 Peel Street,
Montreal, Quebec, Canada H3A 1S9, and its telephone number at such address is
(514) 849-5271.
Descendants of the late Samuel Bronfman and trusts established for their
benefit (collectively, the "Bronfman Family") beneficially own directly or
indirectly approximately 34.5% of the outstanding Seagram Shares (approximately
30.3% of the outstanding Seagram Shares after giving effect to the issuance of
47,904,191 Seagram Shares as Share Consideration in the Offer). Of the amount
beneficially owned before giving effect to the Offer, Bronfman Associates, a
partnership of which Edgar M. Bronfman, his children and a trust for the benefit
of Edgar M. Bronfman and his descendants are the sole partners and of which
Edgar M. Bronfman is the managing partner, along with a second trust for the
benefit of Edgar M. Bronfman and his descendants, own directly approximately
17.5% of the Seagram Shares, trusts for the benefit of Charles R. Bronfman and
his descendants own directly approximately 14.8% of the Seagram Shares, trusts
for the benefit of the family of the late Minda de Gunzburg and members of her
immediate family own directly or indirectly approximately 0.7% of the Seagram
Shares, Phyllis Lambert owns directly or indirectly approximately 0.3% of the
Seagram Shares, a charitable foundation of which Charles R. Bronfman is among
the directors owns approximately 0.9% of the Seagram Shares, another charitable
foundation of which Charles R. Bronfman is among the directors owns
approximately 0.2% of the Seagram Shares, a charitable foundation of which Edgar
M. Bronfman and Charles R. Bronfman are among the trustees owns approximately
0.1% of the Seagram Shares, a charitable foundation of which Phyllis Lambert is
one of the directors owns less than 0.01% of the Seagram Shares and Edgar M.
Bronfman, Charles R. Bronfman and their respective spouses and children own
directly approximately 0.02% of the Seagram Shares. In addition, such persons
hold options which are currently exercisable or become exercisable within 60
days to purchase an additional 1.1% of the Seagram Shares, calculated pursuant
to Rule 13d-3 of the Rules and Regulations under the U.S. Exchange Act.
Percentages set forth in this paragraph are based on the number of Seagram
Shares outstanding as of September 30, 1998. See "Security Ownership of Certain
Beneficial Owners and Management of The Seagram Company Ltd."
Edgar M. Bronfman is Chairman of the Board of Seagram and a director of
Seagram. Charles R. Bronfman is Co-Chairman of the Board and Chairman of the
Executive Committee of Seagram and a director of Seagram. Edgar M. Bronfman,
Charles R. Bronfman, Phyllis Lambert and the late Minda de Gunzburg are
siblings.
Pursuant to a voting trust agreement, Charles R. Bronfman serves as voting
trustee for Seagram Shares beneficially owned directly or indirectly by Bronfman
Associates, the aforesaid trusts for the benefit of Edgar M. Bronfman and his
descendants, the aforesaid trusts for the benefit of Charles R. Bronfman and his
descendants, the first two of the four aforesaid charitable foundations and
Charles R. Bronfman. Pursuant to another voting trust agreement, Edgar M.
Bronfman and Charles R. Bronfman are among the voting trustees for Seagram
Shares beneficially owned directly or indirectly by trusts for the benefit of
the family of the late Minda de Gunzburg and members of her immediate family.
Neither voting trust agreement contains restrictions on the right of the voting
trustees to vote the deposited Seagram Shares.
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<PAGE> 107
The Bronfman Family may be deemed to be in control of Seagram. Information
concerning the foregoing persons and entities, together with information
concerning the directors and executive officers of Seagram, is contained in
Schedule I attached to this Offering Circular/Prospectus.
Except as described in this Offering Circular/Prospectus, neither Seagram
nor, to the best of Seagram's knowledge, any of the persons listed in Schedule I
attached hereto or any associate or majority-owned subsidiary of Seagram or any
of the persons so listed, beneficially owns or has a right to acquire any equity
security of PolyGram, and neither Seagram nor, to the best of Seagram's
knowledge, any of the persons referred to in this paragraph, or any of the
respective directors, executive officers or subsidiaries of any of the
foregoing, has effected any transaction in any equity security of PolyGram
during the past 60 days.
Except as described in this Offering Circular/Prospectus, (i) there have
not been any contacts, transactions or negotiations between Seagram or any of
its subsidiaries or, to their best knowledge, any of the persons listed in
Schedule I attached hereto, on the one hand, and PolyGram or any members of
PolyGram's Board of Management or Supervisory Board, PolyGram officers or
PolyGram affiliates, on the other hand, that are required to be disclosed
pursuant to the rules and regulations of the SEC and (ii) neither Seagram nor,
to the best of Seagram's knowledge, any of the persons listed in Schedule I
attached hereto has any present or proposed contract, arrangement, understanding
or relationship with any person with respect to the securities of PolyGram,
including, without limitation, any contract, arrangement, understanding or
relationship concerning the transfer or the voting of any such securities of
PolyGram, joint ventures, loan or option arrangements, puts or calls, guarantees
of loans, guarantees against loss, or the giving or withholding of proxies.
Except as disclosed in this Offering Circular/Prospectus, during the past
three years, neither Seagram nor any company belonging to the same group as
Seagram acquired, directly or indirectly, from any member of the Board of
Management of PolyGram or the Supervisory Board of PolyGram, their spouses or
minor children or any legal entity controlled by such persons, any PolyGram
Shares, and neither Seagram nor any such group company has entered into
agreements, contracts or transactions with any of such persons which will result
in the acquisition of any PolyGram Shares.
Except as disclosed in this Offering Circular/Prospectus, during the past
three years, neither Seagram nor any company belonging to the same group as
Seagram acquired, directly or indirectly, from any third parties any PolyGram
Shares, and neither Seagram nor any such group company has entered into
agreements, contracts or transactions with any third parties which will result
in the acquisition of any PolyGram Shares.
Goldman Sachs International, an affiliate of Goldman, Sachs & Co., served
as financial advisor to Philips in connection with the Offer. John S. Weinberg,
a director of Seagram, is a Managing Director of Goldman, Sachs & Co.
As of the date of this Offering Circular/Prospectus, PolyGram does not own
any Seagram Shares.
RECENT DEVELOPMENTS
On August 25, 1998, Seagram sold Tropicana to Pepsi for cash proceeds of
approximately $3.3 billion. The after-tax proceeds from the transaction will be
used by Seagram to pay a part of the cash portion of the Offer Consideration.
See "The Offer -- Source and Amount of Funds."
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<PAGE> 108
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT OF THE SEAGRAM COMPANY LTD.
The following table sets forth certain information regarding the beneficial
ownership of Seagram Shares as of September 30, 1998 by (i) persons known to
Seagram to be the beneficial owners of more than 5% of the outstanding Seagram
Shares, (ii) each director of Seagram, (iii) each of the five most highly
compensated executive officers of Seagram during the fiscal year ended June 30,
1998 of Seagram and (iv) the directors and executive officers of Seagram as a
group. The following table sets forth beneficial ownership information both
before and after giving effect to the issuance of 47,904,191 Seagram Shares as
Share Consideration in the Offer. Each trustee of a trust or a charitable
foundation may be deemed to be the beneficial owner of Seagram Shares held by
the trust or foundation. Because certain persons listed below serve as trustees
of the same trusts or charitable foundations, there are substantial duplications
in the number of shares and percentages shown in the table.
<TABLE>
<CAPTION>
BEFORE OFFER AFTER OFFER
-------------------------------------------- --------------------------------------------
PERCENTAGE DEFERRED PERCENTAGE DEFERRED
NUMBER OF SHARES SHARE NUMBER OF SHARES SHARE
BENEFICIAL OWNER OF SHARES OUTSTANDING UNITS(1) OF SHARES OUTSTANDING UNITS(1)
- ---------------- --------- ----------- -------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Edgar Miles Bronfman Trust......... 60,704,604(2) 17.5% -- 60,704,604(2) 15.4% --
C. Bronfman Family Trust
Charles Rosner Bronfman Family
Trust
Charles Bronfman Trust
Charles Bronfman Trust II
Charles R. Bronfman Trust and
Charles Rosner Bronfman
Discretionary Trust............ 51,522,760(3) 14.8% -- 51,522,760(3) 13.0% --
Koninklijke Philips Electronics
N.V. ............................ -- -- -- 47,904,191(4) 12.1% --
Edgar M. Bronfman.................. 61,711,561(5) 17.7% -- 61,711,561(5) 15.6% --
The Honourable Charles R Bronfman,
P.C., C.C. ...................... 55,849,421(6) 16.1% -- 55,849,421(6) 14.1% --
Edgar Bronfman, Jr................. 63,385,102(7) 18.1% -- 63,385,102(7) 15.9% --
Samuel Bronfman II................. 357,541(8) * -- 357,541(8) * --
Matthew W. Barrett, O.C. .......... 1,000 * 3,115 1,000 * 3,115
Laurent Beaudoin, C.C. ............ --(9) * 1,518 --(9) * 1,518
Frank J. Biondi, Jr................ 1,000,500(10) * -- 1,000,500(10) * --
Richard H. Brown................... 1,000 * 1,670 1,000 * 1,670
The Honourable William G. Davis,
P.C., C.C., Q.C. ................ 982 * -- 982 * --
Andre Desmarais.................... 5,000 * 954 5,000 * 954
Barry Diller....................... 1,000(11) * 1,112 1,000(11) * 1,112
Michele J. Hooper.................. 2,482 * -- 2,482 * --
David L. Johnston, C.C. ........... 400 * 3,313 400 * 3,313
The Honourable E. Leo Kolber,
Senator.......................... 4,240 * 3,189 4,240 * 3,189
Marie-Josee Kravis, O.C. .......... 400 * 2,504 400 * 2,504
Robert W. Matschullat.............. 645,500(12) * -- 645,500(12) * --
C. Edward Medland.................. 6,000 * 3,326 6,000 * 3,326
Samuel Minzberg.................... -- -- 1,171 -- -- 1,171
John S. Weinberg................... 6,500(13) * 3,350 6,500(13) * 3,350
Directors and executive officers as
a group.......................... 122,769,574(14) 34.7% 122,769,574(14) 30.6%
</TABLE>
- ------------
* Less than 1%.
(1) Non-employee directors receive at least 50% of their annual fees in Seagram
Shares or share equivalents pursuant to The Seagram Company Ltd. Stock Plan
for Non-Employee Directors. Under the plan, each non-employee director may
elect to receive either 50% or 100% of his or her annual retainer in
Seagram Shares or deferred share units. If a director elects to receive
Seagram Shares, the applicable retainer amount (net of withholding taxes)
will be used to purchase Seagram Shares on the open market. The Seagram
Shares will be delivered promptly to the director. If a director elects to
receive deferred share units, units representing the value of Seagram
Shares will be credited to the director's account based on
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<PAGE> 109
the market value of a Seagram Share on the annual crediting date. Deferred
share units will be paid to the director, along with the value of dividends
as if reinvested in additional Seagram Shares, after termination of Board
service. Payment will be made in Seagram Shares or cash, net of
withholding, based on the then market value of the Seagram Shares. Fees for
attending Board and committee meetings and/or serving as a Board committee
chairman may also be received in deferred share units at the election of
non-employee directors.
(2) Includes 59,218,088 Seagram Shares owned indirectly by the Edgar Miles
Bronfman Trust, 375 Park Avenue, New York, New York, a trust established
for the benefit of Edgar M. Bronfman and his descendants (the "EMBT"),
through its 99% interest in Bronfman Associates, a partnership of which
Edgar M. Bronfman is the managing general partner, and 1,486,516 Seagram
Shares owned directly by the PBBT/Edgar Miles Bronfman Family Trust, a
trust established for the benefit of Edgar M. Bronfman and his descendants
(the "PBBT/EMBFT"). The trustees of the EMBT and the PBBT/ EMBFT include
Edgar M. Bronfman and Edgar Bronfman, Jr. See "The Seagram Company Ltd."
(3) Includes 17,320,000 Seagram Shares owned indirectly by the C. Bronfman
Family Trust (the "C.BFT"), c/o Chancery Chambers, Chancery House, High
Street, Bridgetown, Barbados, 24,800,000 Seagram Shares owned by the
Charles Rosner Bronfman Family Trust (the "CRBFT"), c/o Goodman Phillips &
Vineberg, 1501 McGill College Avenue, Montreal, Quebec, 1,700,000 Seagram
Shares owned by the Charles Bronfman Trust (the "CBT"), 5,000,000 Seagram
Shares owned by the Charles Bronfman Trust II (the "CBT II") and 1,700,000
Seagram Shares owned by the Charles R. Bronfman Trust (the "CR.BT"), each
c/o Goodman Phillips & Vineberg, 430 Park Avenue, New York, New York, and
1,002,760 Seagram Shares owned by the Charles Rosner Bronfman Discretionary
Trust (the "CRBDT"), c/o Bergman, Horowitz & Reynolds, 157 Church Street,
New Haven, Connecticut. The C.BFT, the CRBFT, the CBT, the CBT II, the
CR.BT and the CRBDT are trusts established for the benefit of Charles R.
Bronfman and his descendants. The trustees of the CRBFT include Arnold M.
Ludwick, an executive officer of Seagram. See "The Seagram Company Ltd."
(4) Represents the number of Seagram Shares that Philips will receive if no
other PolyGram shareholder makes a Share Election. Philips may receive as
few as 35,928,143 Seagram Shares, representing approximately 9.1% of the
outstanding Seagram Shares following consummation of the Offer (based on
the number of outstanding Seagram Shares as of September 30, 1998),
depending on the number of Tendered Shares with respect to which a Share
Election is made. See "The Offer -- Limited Availability of Share
Consideration." Philips' ability to vote and dispose of its Seagram Shares
will be subject to the terms of the Stockholders Agreement. See
"Description of Transaction Agreements -- Stockholders Agreement."
(5) Includes 59,218,088 Seagram Shares owned indirectly by the EMBT and
1,486,516 Seagram Shares owned directly by the PBBT/EMBFT, trusts for which
Mr. Bronfman serves as a trustee, 240 Seagram Shares owned directly by Mr.
Bronfman, 763,921 Seagram Shares issuable upon the exercise of currently
exercisable options, 1,840 Seagram Shares owned by Mr. Bronfman's spouse,
600 Seagram Shares owned directly by his children (other than Edgar
Bronfman, Jr. and Samuel Bronfman II), 356 Seagram Shares owned by an
estate for which Mr. Bronfman is an executor, and 240,000 Seagram Shares
owned by a charitable foundation of which Mr. Bronfman is among the
trustees. Mr. Bronfman disclaims beneficial ownership of the foregoing
Seagram Shares, except to the extent of his beneficial interest in the EMBT
and the PBBT/EMBFT and with respect to Seagram Shares owned directly by
him. In addition, Mr. Bronfman serves as a voting trustee with respect to
the 2,516,332 Seagram Shares subject to the de Gunzburg voting trust
agreement with respect to which Mr. Bronfman disclaims beneficial
ownership. See "The Seagram Company Ltd."
(6) Includes 17,320,000 Seagram Shares owned directly by the C.BFT, 24,800,000
Seagram Shares owned directly by the CRBFT, 1,700,000 Seagram Shares owned
directly by the CBT, 5,000,000 Seagram Shares owned directly by the CBT II,
1,700,000 Seagram Shares owned directly by the CR.BT and 700,000 Seagram
Shares owned directly by the CRBDT, trusts for which Mr. Bronfman serves as
a voting trustee, 454,901 Seagram Shares issuable upon exercise of
currently exercisable options, 12,000 Seagram Shares owned by Mr.
Bronfman's spouse, 48,000 Seagram Shares owned directly by his
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<PAGE> 110
children, 356 Seagram Shares owned by an estate for which Mr. Bronfman is
an executor, and 4,144,164 Seagram Shares owned by three charitable
foundations of which Mr. Bronfman is among the directors or trustees. Mr.
Bronfman disclaims beneficial ownership of the foregoing Seagram Shares. In
addition, Mr. Bronfman serves as the voting trustee with respect to
60,704,604 Seagram Shares held by the EMBT and the PBBT/EMBFT subject to
the Bronfman voting trust agreement and as a voting trustee with respect to
2,516,332 Seagram Shares subject to the de Gunzburg voting trust agreement
with respect to which Mr. Bronfman disclaims beneficial ownership. See "The
Seagram Company Ltd."
(7) Includes 59,218,088 Seagram Shares owned indirectly by the EMBT and
1,486,516 Seagram Shares owned directly by the PBBT/EMBFT, trusts for which
Mr. Bronfman serves as a trustee, 240 Seagram Shares owned directly by Mr.
Bronfman, 2,439,600 Seagram Shares issuable upon exercise of options which
are currently exercisable or become exercisable within 60 days, 240,000
Seagram Shares owned by a charitable foundation of which Mr. Bronfman is
among the trustees and 658 Seagram Shares in which Mr. Bronfman has an
indirect interest through an investment in the Retirement Savings and
Investment Plan for Employees of Joseph E. Seagram & Sons, Inc. and
Affiliates (based on the value of such investment as of August 31, 1998).
Mr. Bronfman disclaims beneficial ownership of the foregoing Seagram
Shares, except to the extent of his beneficial interest in the EMBT and the
PBBT/EMBFT and with respect to Seagram Shares owned directly by him. See
"The Seagram Company Ltd."
(8) Includes 240 Seagram Shares owned directly by Mr. Bronfman, 117,301 Seagram
Shares issuable upon exercise of currently exercisable options and 240,000
Seagram Shares owned by a charitable foundation of which Mr. Bronfman is
among the trustees. Mr. Bronfman disclaims beneficial ownership of the
foregoing Seagram Shares except the Seagram Shares owned directly by him.
See "The Seagram Company Ltd."
(9) Does not include 300 Seagram Shares held by Gestion Claire B. Beaudoin
Inc., a company owned by Mr. Beaudoin's wife. Mr. Beaudoin disclaims
beneficial ownership of the foregoing shares.
(10) Includes 500 Seagram Shares owned directly by Mr. Biondi and 1,000,000
Seagram Shares issuable upon exercise of currently exercisable options. Mr.
Biondi disclaims beneficial ownership of the foregoing Seagram Shares
except with respect to Seagram Shares owned directly by him.
(11) Includes 1,000 Seagram Shares held by Ranger Investments, L.P., a limited
partnership in which Mr. Diller owns a 99% interest.
(12) Includes 100,000 Seagram Shares owned directly by Mr. Matschullat and
545,500 Seagram Shares issuable upon exercise of options which are
currently exercisable or become exercisable within 60 days. Mr. Matschullat
disclaims beneficial ownership of the foregoing Seagram Shares except with
respect to Seagram Shares owned directly by him.
(13) Includes 1,000 Seagram Shares owned directly and 5,500 Seagram Shares owned
by a trust established for the benefit of Mr. Weinberg for which he serves
as a trustee.
(14) Includes 6,234,368 Seagram Shares issuable upon exercise of options which
are currently exercisable or become exercisable within 60 days.
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<PAGE> 111
POLYGRAM N.V.
Financial and other information relating to PolyGram, including information
relating to the members of the PolyGram Board of Management and the PolyGram
Supervisory Board, is set forth in (i) PolyGram's Annual Report on Form 20-F for
the year ended December 31, 1997 and (ii) PolyGram's Reports on Form 6-K dated
February 3, 1998, February 11, 1998, March 9, 1998, April 3, 1998, April 21,
1998, May 5, 1998, May 26, 1998, June 4, 1998, June 29, 1998, July 9, 1998, July
22, 1998, August 4, 1998, September 22, 1998 and October 21, 1998, all of which
are incorporated by reference herein and copies of which may be obtained from
PolyGram as indicated under "Incorporation of Certain Documents by Reference."
PolyGram is an entertainment company involved in the music and film
businesses. The principal activity of PolyGram is the acquisition, production,
marketing, manufacture and distribution of recorded music. PolyGram also has
certain related activities such as music publishing. PolyGram is the largest
recorded music company in the world in terms of 1997 sales. Pursuant to the
Offer Agreement, PolyGram has retained a financial advisor for the purpose of
selling PolyGram's film division as promptly as practicable. See "Description of
Transaction Agreements -- Offer Agreement -- Sale of Film Division."
Philips owns 75% of the 180,000,000 issued PolyGram Shares as of the date
of this Offering Circular/Prospectus.
The principal executive offices of PolyGram are located at Gerrit van der
Veenlaan 4, 3743 DN Baarn, the Netherlands, and its telephone number at such
address is 011-31-35-5489-489.
RECENT DEVELOPMENTS
Pursuant to the Offer Agreement, PolyGram has retained a financial advisor
for the purpose of selling PolyGram's film division as promptly as practicable.
See "Description of Transaction Agreements -- Offer Agreement -- Sale of Film
Division." On October 22, 1998, Seagram announced that it had entered into an
agreement in principle with MGM to sell certain library assets of PolyGram's
film division (including the Epic, Island/Atlantic, Palace and Virgin film
libraries and certain other films released prior to March 31, 1996 constituting
the PolyGram Filmed Entertainment Produced/Acquired film libraries) to a direct
or indirect wholly owned subsidiary of MGM following Seagram's acquisition of
PolyGram. The purchase price for the proposed transaction would be approximately
$250 million, with $235 million to be paid in cash at the closing of such
proposed transaction and the remaining estimated $15 million to be paid from
operating cash flow from such assets prior to the expected closing of such
transaction in January 1999. The proposed transaction is subject to the
execution of definitive agreements, the consummation of the Offer, the receipt
of regulatory approvals and other customary closing conditions. Discussions with
other parties regarding the sale of certain other library assets of PolyGram's
film division have taken place, and Seagram is continuing to examine strategic
alternatives regarding the film division's production and distribution
operations.
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<PAGE> 112
DESCRIPTION OF SEAGRAM CAPITAL STOCK
The following brief summary of Seagram's capital stock does not purport to
be complete and is qualified in its entirety by reference to all the provisions
of Seagram's Articles of Amalgamation, as amended (the "Seagram Articles"), and
Amended and Restated By-laws (the "Seagram By-laws"), which have been
incorporated by reference as exhibits to the Registration Statement and are
incorporated by reference herein.
The authorized capital of Seagram currently consists of an unlimited number
of Seagram Shares of which 347,462,841 Seagram Shares were outstanding at
September 30, 1998, and an unlimited number of preferred shares without nominal
or par value ("Preferred Shares"), none of which is outstanding.
PREFERRED SHARES
Preferred Shares are divided into two classes, first preferred shares
without nominal or par value ("First Preferred Shares") and second preferred
shares without nominal or par value ("Second Preferred Shares"). First Preferred
Shares rank in priority to Second Preferred Shares and to Seagram Shares as to
the payment of dividends, call for redemption or purchase, if any, and the
distribution of assets in the event of the liquidation, dissolution or
distribution of assets in the event of the liquidation, dissolution or
winding-up of Seagram, and Second Preferred Shares rank in priority to Seagram
Shares and junior to First Preferred Shares with respect to such matters. First
Preferred Shares and Second Preferred Shares are issuable in series.
Accordingly, Seagram's Board of Directors is empowered to determine, without
further shareholder approval except as required by the laws or regulations
governing Seagram, the number, designation, rights, privileges, restrictions and
conditions to be attached to the Preferred Shares of each series, including the
dividend rights, voting rights, if any, conversion rights, if any, and
redemption and purchase provisions, if any, and the restrictions, if any,
respecting payment of dividends on any shares of Seagram ranking junior to the
shares of the class.
SEAGRAM SHARES
Each Seagram Share entitles the holder thereof to one vote at all meetings
of shareholders of Seagram except meetings at which only the holders of another
specified class or series of shares are entitled to vote. Subject to the rights,
privileges, restrictions and conditions attaching to First Preferred Shares,
Second Preferred Shares and to any other class or series of shares of Seagram
which rank prior to Seagram Shares, (i) holders of Seagram Shares are entitled
to receive dividends as and when declared on Seagram Shares by Seagram's Board
of Directors and (ii) upon liquidation, dissolution or winding-up of Seagram,
holders of Seagram Shares are entitled to the remaining property of Seagram.
Holders of Seagram Shares are not, as such, entitled to any preemptive rights to
acquire any securities of Seagram.
At September 30, 1998, Joseph E. Seagram & Sons, Inc., a subsidiary of
Seagram, had outstanding Liquid Yield Option Notes ("LYONs"), which are
guaranteed by Seagram on a subordinated basis and convertible into 299,173
Seagram Shares at a conversion rate of 18.44 shares for each $1,000 face amount
LYON. The LYONs mature on March 5, 2006. In addition, at September 30, 1998,
37,440,420 Seagram Shares were potentially issuable upon the exercise of
employee stock options, of which 21,478,094 were exercisable at or within 60
days of such date.
Seagram had 7,121 registered shareholders at September 30, 1998. The total
number of beneficial holders of Seagram Shares is uncertain, since Seagram
Shares may be held by brokers and other nominees.
The transfer agents and registrars for the Seagram Shares are CIBC Mellon
Trust Company and Chase Mellon Shareholder Services L.L.C.
For a description of other provisions of the Seagram Articles and the
Seagram By-laws and of the Canada Business Corporations Act (under which Seagram
is incorporated) (the "CBCA"), including provisions which may have the effect of
delaying, deterring or preventing a future takeover or change of control of
Seagram, see "Comparison of Rights of Holders of PolyGram Shares and Seagram
Shares."
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DESCRIPTION OF POLYGRAM CAPITAL STOCK
The following brief summary of PolyGram's capital stock does not purport to
be complete. The PolyGram Articles provide that the authorized capital stock of
PolyGram consists of 500,000,000 PolyGram Shares, par value NLG 0.50 per share.
The PolyGram Articles do not authorize the issuance of preference stock. As of
September 30, 1998, 180,000,000 PolyGram Shares were issued, of which 1,645,526
were held by PolyGram in its treasury.
PolyGram Shares are held as either PolyGram CF-Shares, PolyGram K-Shares,
PolyGram Dutch Registered Shares or PolyGram U.S. Registered Shares. Each
PolyGram CF-Share, each PolyGram K-Share, each PolyGram Dutch Registered Share
and each PolyGram U.S. Registered Share (except for PolyGram Shares held in
treasury by PolyGram or any of its subsidiaries) is identical in all respects
except (i) for the form in which such shares have been issued and (ii) that
PolyGram K-Shares do not have any rights (including the right to vote or to
receive dividends) other than the right to convert into PolyGram CF-Shares on a
one-for-one basis. See "-- PolyGram K-Shares."
PolyGram had 11 holders of PolyGram Dutch Registered Shares and 216 holders
of PolyGram U.S. Registered Shares as of September 30, 1998. The total number of
beneficial holders of PolyGram Shares is uncertain, since the identities of the
holders of PolyGram CF-Shares and PolyGram K-Shares are unknown and because
PolyGram U.S. Registered Shares may be held by brokers and other nominees.
POLYGRAM CF-SHARES
PolyGram CF-Shares are PolyGram Shares held in bearer form in the
Netherlands and administered through the book-entry system of NECIGEF. According
to PolyGram, there were 42,021,976 PolyGram CF-Shares outstanding of which
1,645,526 PolyGram CF-Shares were held by PolyGram in its treasury as of
September 30, 1998.
POLYGRAM K-SHARES
PolyGram K-Shares are PolyGram Shares held in bearer certificated form. In
1995, PolyGram amended the PolyGram Articles to create the PolyGram CF-Shares
which would trade through the NECIGEF system. In that connection, holders of
PolyGram K-Shares were instructed to surrender their share certificates and
convert their PolyGram K-Shares into PolyGram CF-Shares. PolyGram K-Shares which
were not converted ceased to have any rights (including the right to vote or to
receive dividends) until such PolyGram K-Shares were converted into PolyGram
CF-Shares. According to PolyGram, 1,568 PolyGram K-Shares remained outstanding
as of September 30, 1998.
POLYGRAM DUTCH REGISTERED SHARES
PolyGram Dutch Registered Shares are PolyGram Shares registered in
book-entry form in the Netherlands Registry, for which PolyGram serves as the
transfer agent and registrar. According to PolyGram, in addition to Philips'
135,000,000 PolyGram Shares, there were 381 PolyGram Dutch Registered Shares
outstanding as of September 30, 1998.
POLYGRAM U.S. REGISTERED SHARES
PolyGram U.S. Registered Shares are PolyGram Shares registered at the New
York Registry, for which Citibank N.A. serves as the transfer agent and
registrar. According to PolyGram, there were 2,976,075 PolyGram U.S. Registered
Shares outstanding as of September 30, 1998.
For a description of other provisions of the PolyGram Articles, see
"Comparison of Rights of Holders of PolyGram Shares and Seagram Shares."
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COMPARISON OF RIGHTS OF HOLDERS
OF POLYGRAM SHARES AND SEAGRAM SHARES
In the event that the Offer is consummated, former shareholders of
PolyGram, a corporation incorporated under the laws of the Netherlands, that
receive Share Consideration in the Offer, will, at the Closing Date, own common
shares of Seagram, a corporation organized under the laws of Canada, and the
rights of such shareholders will thereafter be governed by the Seagram Articles,
the Seagram By-laws and the CBCA. The rights of shareholders of PolyGram are
presently governed by the PolyGram Articles and Dutch Law. The following
summary, which does not purport to be a complete statement of the differences
between the rights of shareholders of Seagram and the shareholders of PolyGram,
sets forth some material differences between the rights of holders of (i)
PolyGram Shares at the date of this Offering Circular/Prospectus and (ii) the
rights of holders of Seagram Shares at the date of this Offering
Circular/Prospectus. This summary is qualified in its entirety by reference to
the full text of the Seagram Articles, the Seagram By-laws, the PolyGram
Articles and the applicable laws of Canada and the Netherlands. For information
as to how such documents may be obtained, see "Available Information".
VOTING RIGHTS AND QUORUM
The CBCA provides that unless the corporation's articles otherwise provide,
each share of a corporation entitles the holder thereof to one vote at a meeting
of the shareholders.
The CBCA provides that certain extraordinary corporate actions, such as
certain amalgamations, any continuance, and sales, leases or exchanges of all or
substantially all of the property of a corporation other than in the ordinary
course of business, and other extraordinary corporate actions such as
liquidations, dissolutions and arrangements, are required to be approved by
special resolution. A special resolution is a resolution passed at a meeting by
a majority of not less than two-thirds of the votes cast by the shareholders who
voted in respect of that resolution or signed by all shareholders entitled to
vote on that resolution. In certain cases, a special resolution to approve an
extraordinary corporate action is also required to be approved separately by the
holders of a class or a series of shares.
The CBCA provides that unless the by-laws of a corporation otherwise
provide, the holders of a majority of shares entitled to vote at a meeting of
shareholders, whether present in person or represented by proxy, constitute a
quorum, irrespective of the number of persons actually present at the meeting.
The Seagram Articles provide that each Seagram Share shall entitle the
holder thereof to one vote at all meetings of shareholders of Seagram, except
meetings at which only holders of another specified class or series of shares
are entitled to vote. See "Description of Seagram Capital Stock". Unless
otherwise required by the Seagram Articles or the Seagram By-laws or by law,
every question to be decided at a meeting of shareholders shall be determined by
the majority of votes cast on the question. In case of an equality of votes, the
chairman of the meeting is entitled to a second or casting vote.
The Seagram By-laws provide that a quorum for the transaction of business
at any meeting of shareholders shall be two persons present in person, each
being a shareholder entitled to vote thereat or a duly appointed proxy for an
absent shareholder so entitled, and holding or representing not less than 40% of
the total number of the issued shares of the Corporation enjoying voting rights
at such meeting. No business shall be transacted at any meeting unless the
requisite quorum be present at the time of the transaction of such business.
The Seagram By-laws further provide that should a quorum not be present at
any meeting of shareholders, those present in person and entitled to be counted
for the purpose of forming a quorum shall have power to adjourn the meeting from
time to time without notice other than announcement at the meeting until a
quorum shall be present, subject to the provisions of the Act and the Seagram
By-laws. At any such adjourned meeting, provided a quorum is present, any
business may be transacted which might have been transacted at the meeting
adjourned.
Under Dutch Law, each shareholder is entitled to one vote per share, unless
the articles of association of the company provide otherwise. All shareholder
resolutions are taken by simple majority of the votes cast,
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<PAGE> 115
unless the articles of association or Dutch Law prescribe a qualified majority.
The validity of shareholder decisions is not dependent on a quorum, unless the
law or the articles of association stipulate otherwise. A general meeting of
shareholders (a "General Meeting") must be held annually within six months of
the expiration of the fiscal year of a company.
Under the PolyGram Articles, each PolyGram Share entitles the holder
thereof to cast one vote. Generally, decisions of the General Meeting must be
taken by a simple majority of the votes cast (blank and invalid votes are not
counted) and, but for the exceptions referred to in this summary, there are no
quorum requirements. Except in the case of voting concerning appointments, where
further polls may be taken until one of the nominees has obtained an absolute
majority, in the case of an equality of the votes cast, the relevant proposal
shall be deemed to have been rejected.
The PolyGram Articles require at least three-quarters of the votes cast for
resolutions amending the PolyGram Articles or winding-up the company. In
addition, in such instances, a quorum of more than half of the issued share
capital is required. If such a quorum is not present, the PolyGram Articles
provide that a further meeting is to be convened, to be held within four weeks
of the first meeting, at which, irrespective of the share capital present, the
resolution may be adopted by at least three-quarters of the votes cast. The
PolyGram Articles provide that, notwithstanding the foregoing, a resolution
described in this paragraph that is moved by the Supervisory Board and the Board
of Management shall be carried by a simple majority of votes without any quorum
requirements applying. Under the PolyGram Articles, a resolution to instruct an
accountant to audit the annual accounts requires at least two thirds of the
votes cast and a quorum of more than one half of the issued share capital.
AMENDMENT TO CHARTER AND BY-LAWS
The CBCA provides that any amendment to the articles of a corporation
generally requires approval by special resolution, which is a resolution passed
by a majority of not less than two-thirds of the votes cast by shareholders who
voted in respect of that resolution or signed by all shareholders entitled to
vote on that resolution. Unless the articles or by-laws of a CBCA corporation
otherwise provide, the CBCA provides that the directors may, by resolution,
make, amend or repeal any by-laws that regulate the business or affairs of a
corporation. Where the directors make, amend or repeal a by-law, they are
required under the CBCA to submit the by-law, amendment or repeal to the
shareholders at the next meeting of shareholders, and the shareholders may
confirm, reject or amend the by-law, amendment or repeal by ordinary resolution,
which is a resolution passed by a majority of the votes cast by shareholders who
voted in respect of that resolution.
Under Dutch Law, amendments to the company's articles of association
require a resolution of the General Meeting.
The provisions of the PolyGram Articles relating to amendments thereof are
discussed in "-- Voting Rights and Quorum".
SPECIAL MEETINGS
The CBCA provides that the directors of a corporation may at any time call
a special meeting of the shareholders. The CBCA further provides that the
holders of not less than 5% of the issued shares of a corporation that carry the
right to vote at a meeting sought to be held may requisition the directors to
call a meeting of the shareholders for the purposes stated in the requisition.
The Seagram By-laws provide that the board, the chairman of the board, the
chairman of the executive committee or the president shall have the power to
call a special meeting of shareholders at any time.
Under Dutch Law, General Meetings may be called by the management board or
the supervisory board but the articles of association may also vest this power
in other corporate bodies. In addition, one or more shareholders, who own
together at least 10% -- or such lesser amount as is provided in the articles of
incorporation -- of the issued share capital, can be authorized by the President
of the District Court with competent jurisdiction to call a General Meeting.
There is no formal distinction between ordinary and special General Meetings.
Any kind of resolution may be passed at either meeting and the voting
requirements are the
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same for both meetings. The PolyGram Articles distinguish between the ordinary
meeting (the annual General Meeting held to adopt the annual accounts) and
extraordinary meetings, which may be called by the Board of Management, the
Supervisory Board or holders of at least one-tenth of the issued share capital
of the company who have been authorized by the President of the District Court
as referred to above.
SHAREHOLDER CONSENTS IN LIEU OF MEETING
The CBCA provides that a shareholder action without a meeting may only be
taken by written resolution signed by all of the shareholders entitled to vote
on that resolution at a meeting of shareholders. All matters required by the
CBCA to be dealt with at a meeting of shareholders may be satisfied without a
meeting but only by written resolution dealing with such matters which is signed
by all the shareholders entitled to vote at that meeting.
Under Dutch Law, resolutions may be adopted by shareholders in writing
without holding a meeting of shareholders, provided the articles of association
expressly so allow and provided no bearer shares are issued. As the PolyGram
Articles do not contain such an express provision and PolyGram has issued bearer
shares, shareholders of PolyGram may not adopt resolutions outside a meeting of
shareholders.
BOARD OF MANAGEMENT AND SUPERVISORY BOARD
Under the CBCA, the business and affairs of a corporation are managed by a
single board of directors. Consequently, the business and affairs of Seagram are
managed by its Board of Directors.
Under Dutch Law, a company may have two Boards. Where a company is governed
by the "structure regime", which PolyGram is not, it must have two Boards. The
Board of Management has all the executive powers of the company and can bind the
company to agreements with third parties. The Supervisory Board's only powers
are to supervise the actions of, and give advice to, the Board of Management.
The articles of association may provide that certain resolutions of the Board of
Management are subject to the approval of the Supervisory Board or can only be
passed at the proposal of the Supervisory Board.
The PolyGram Articles require the approval of the Supervisory Board for,
among other things, the following actions: (i) the issuance and acquisition of
PolyGram's shares and debentures; (ii) cooperation in the issuance of depositary
receipts for shares in PolyGram; (iii) application for listing and delisting of
securities referred to in clauses (i) and (ii); (iv) entering into or
terminating an important permanent cooperation of PolyGram or any of its
subsidiaries with any third party; (v) participations by PolyGram or any of its
subsidiaries in the capital of any other company where the value of such
participation exceeds one quarter of the shareholders' equity of PolyGram and
any substantial increase or reduction of such a participation; (vi) investments
requiring an amount equal to not less than one quarter of the shareholders'
equity of PolyGram; (vii) any proposal to amend the PolyGram Articles, to
dissolve PolyGram or to reduce its issued share capital; and (viii) application
for bankruptcy or suspension of payments.
ELECTION OF DIRECTORS AND DIRECTOR QUALIFICATIONS
The CBCA provides that a corporation shall have one or more directors, but
a corporation whose securities are publicly traded must have not fewer than
three directors, at least two of whom are not officers or employees of the
corporation or any of its affiliates. A majority of the directors of a CBCA
corporation must be resident Canadians. Directors shall not transact business at
a meeting of directors unless a majority of directors present are resident
Canadians. An exemption to this requirement exists for "holding corporations"
under the CBCA. Not more than one-third of the directors of a holding
corporation need be resident Canadians if the holding corporation earns in
Canada directly or through its subsidiaries less than 5% of the gross revenues
of the holding corporation and all of its subsidiaries. Seagram currently
qualifies for the "holding corporation" exemption.
The Seagram By-laws provide that until changed in accordance with the CBCA,
the board of Seagram shall consist of not fewer than ten directors and not more
than twenty-five directors. The Seagram By-laws provide that no person shall be
qualified for election as a director if such person is less than 18 years of age
or
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more than 70 years of age; if such person is of unsound mind and has been so
found by a court in Canada or elsewhere; if such person is not an individual; or
if such person has the status of a bankrupt. Notwithstanding the foregoing age
qualification, a maximum of three persons of more than 70 years of age may be
elected to serve as directors at any time. A director need not be a shareholder.
Although the CBCA allows for staggered terms, the Seagram Articles do not permit
such terms. Moreover, under the Seagram By-laws, the election of directors shall
take place at each annual meeting of shareholders, at which time all the
directors then in office shall cease to hold such office; therefore, staggered
terms are not permitted.
Under Dutch Law, members of the Board of Management and the Supervisory
Board are appointed for an indefinite period of time and their appointment is
not staggered. For companies governed by the so-called "structure regime" for
"large" companies, members of the Supervisory Board are appointed for no more
than four years. A company may provide in its articles of association that the
appointment and resignation of members of the Board of Management and the
Supervisory Board will be staggered. Dutch Law provides that should a member of
the Supervisory Board reach the age of 72 in any fiscal year, such person shall
retire at the General Meeting held in that fiscal year.
The PolyGram Articles provide that the company will be managed by a Board
of Management consisting of at least three members, under the supervision of a
Supervisory Board, also consisting of at least three members. The Supervisory
Board determines the number of members of the Board of Management as well as the
terms of their employment. The General Meeting determines the number of members
of the Supervisory Board.
Any proposal for the appointment of a member of the Board of Management can
only be submitted to the General Meeting by the Board of Management after
previous consultation with the Supervisory Board. However, such a proposal can
also be made by shareholders representing not less than 10% of the issued share
capital. In either event, the appointment must be made from a "binding
nomination" drawn up by the Supervisory Board and containing the names of not
less than two candidates if the Supervisory Board has made such a binding
nomination. The General Meeting can deprive a binding nomination of its binding
nature by a resolution adopted by a two thirds majority representing not less
than one half of the issued share capital. The Supervisory Board appoints one of
the members of the Board of Management as president of the Board of Management.
Any proposal to appoint a Supervisory Director can only be put on the
agenda after consultation between the Supervisory Board and the Board of
Management. The same provisions on "binding nominations" apply as in the event
of an appointment of members of the Board of Management. Where no binding
nomination has been drawn up by the Supervisory Board, the General Meeting is
free to appoint the person it wishes. The Supervisory Board appoints its
chairman from among its members.
The PolyGram Articles provide that members of the Supervisory Board shall
retire no later than at the next General Meeting of Shareholders held after a
period of four years following such person's appointment. Should a member of the
Supervisory Board reach the age of seventy-two in any financial year, such
person shall retire at the General Meeting held in that financial year. The
PolyGram Articles further provide that the Supervisory Board may establish a
rotation scheme.
REMOVAL OF DIRECTORS
The CBCA provides that the shareholders of a corporation may by ordinary
resolution at a special meeting remove any director or directors from office.
Under Dutch Law, members of the management board or the supervisory board
of a company which is not governed by the "structure regime" may at any time be
suspended or dismissed by the General Meeting.
The PolyGram Articles provide that the General Meeting shall be entitled to
suspend or dismiss one or more members of the Board of Management, provided that
at least half of the issued share capital is represented at the meeting; no such
quorum is required where the suspension or dismissal is proposed by the Board of
Management or the Supervisory Board. The PolyGram Articles further provide that
the members of the Board of Management can be jointly or individually suspended
by the Supervisory Board. After suspension
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a General Meeting shall be convened within three months, at which meeting it
shall be decided whether the suspension shall be cancelled or maintained.
The PolyGram Articles provide that members of the Supervisory Board may be
suspended or dismissed by the General Meeting. The Supervisory Board may make a
proposal to the General Meeting for the suspension or dismissal of one or more
of its members.
VACANCIES ON THE BOARD OF DIRECTORS
Under the CBCA, the Board of Directors may (unless the articles of the
corporation provide that a vacancy among the directors shall only be filled by a
vote of shareholders, which provision is not in the Seagram Articles) fill a
vacancy among the directors, except a vacancy resulting from an increase in the
number or minimum number of directors, or from a failure to elect the number or
minimum number of directors required by the articles.
Under the CBCA and the Seagram Articles, the Board of Directors may appoint
additional directors to expand the size of the Board of Directors, provided that
the total number of directors so appointed may not exceed one-third of the
number of directors elected at the previous annual meeting of shareholders.
Under Dutch Law, a decision to appoint a new member of the management board
of a company which is not governed by the "structure regime" must be taken by
the General Meeting. The PolyGram Articles provide that if the number of members
of the Board of Management falls to less than three, a General Meeting must be
called as soon as possible to fill vacancies on the Board of Management so as to
increase the number of members of the Board of Management to at least three. The
PolyGram Articles do not address vacancies on the Supervisory Board.
BEARER SHARES
The CBCA provides that shares of a corporation shall be in registered form
and shall be without nominal or par value. Accordingly, all Seagram Shares have
been issued in registered form.
Dutch Law allows for shares of a corporation in the form of a "naamloze
vennootschap" to be in either registered or bearer form. The PolyGram Articles
provide that PolyGram shares may be held in either registered or bearer form.
See "Description of PolyGram Capital Stock."
PREEMPTIVE RIGHTS
The CBCA permits preemptive rights, if the articles of the corporation so
provide. The Seagram Articles do not provide for such rights.
Under Dutch Law, unless limited or eliminated by the articles of
association, holders of common stock have preemptive rights pro rata to their
existing shareholdings. Preemptive rights can be limited or eliminated for each
issue of shares by the General Meeting unless otherwise provided in the articles
of association. The PolyGram Articles provide that, in the event of a share
issue, shareholders shall have preemptive rights in proportion to the number of
shares which they own. No such right exists where shares are issued for payment
in kind. The PolyGram Articles further provide that the Board of Management
shall have the power to limit or eliminate the preemptive rights of the
shareholders, if and in so far as the Board of Management has been designated as
the authorized body for this purpose by the General Meeting. Such a resolution
of the Board of Management requires the approval of the Supervisory Board. Where
there is no such designation the General Meeting has the power to limit or
eliminate the preemptive right but only upon the proposal of the Board of
Management, which proposal requires the approval of the Supervisory Board. Such
a resolution, as well as the resolution described above designating the Board of
Management, requires a two-thirds majority if less than one half of the issued
share capital is represented at the General Meeting.
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DIVIDENDS
The CBCA provides that a corporation shall not declare or pay a dividend if
there are reasonable grounds to believe that (i) the corporation is, or would
after the payment of the dividend be, unable to pay its liabilities as they
become due, or (ii) the realizable value of the corporation's assets would
thereby be less than the aggregate of its liabilities and stated capital of all
classes. A corporation may pay dividends by issuing fully paid shares of the
corporation and, subject to the solvency tests described in the preceding
sentence, a corporation may pay dividends in money or property.
The Seagram By-laws provide that subject to the CBCA, the board may from
time to time declare dividends payable to the shareholders according to their
respective rights and interests in the corporation. Dividends may be paid in
money or property or by issuing fully paid shares of the corporation. See
"Description of Seagram Capital Stock."
Under Dutch Law dividends generally may only be declared after adoption of
the annual accounts by the general meeting, which accounts must show that the
dividend is permitted. Dividends may be distributed only to the extent that the
net assets exceed the sum of the amount of issued and paid-up capital and
reserves which must be maintained by the company as required by law or the
articles of association. Interim dividends may be declared if provided for in
the articles of association and may be distributed to the extent that interim
accounts show that net assets exceed the amount of the issued and paid-up
capital plus reserves required as referred to in the preceding sentence. The
interim accounts must be as of a date which may not be earlier than the first
day of the third month prior to the month in which the resolution to make the
interim dividend is announced. These accounts must be signed by all the members
of the Board of Management and filed with the Trade Register in the Netherlands
within eight days of the day of that announcement. Under Dutch Law, the relevant
articles of association may prescribe that the General Meeting or any other
corporate body designated thereby may decide what portion of the profits are to
be held as reserves.
The PolyGram Articles explicitly provide that the Board of Management, with
the prior approval of the Supervisory Board, may decide that an interim dividend
shall be paid. Under the PolyGram Articles, the General Meeting may, upon the
proposal of the Board of Management (which proposal requires the approval of the
Supervisory Board), resolve to make a distribution from the general reserves or
the share premium account.
The PolyGram Articles provide that the Board of Management, with the
approval of the Supervisory Board, is authorized to attribute profits to the
reserves.
DISSENTERS' RIGHTS
The CBCA provides that the shareholders of a Canadian federal corporation
entitled to vote on certain matters are entitled to exercise dissent rights and
to be paid the fair value of their shares in connection therewith. The CBCA does
not distinguish for this purpose between listed and unlisted shares. Such
matters include: (i) an amendment to its articles to add, remove or change any
provisions restricting or constraining the issue, transfer or ownership of
shares of a class of the shares of the corporation; (ii) an amendment to its
articles to add, remove or change any restriction upon the business or
businesses that the corporation may carry on; (iii) any amalgamation with
another corporation (other than certain affiliated corporations); (iv)
continuance under the laws of another jurisdiction; (v) the sale, lease or
exchange of all or substantially all its property other than in the ordinary
course of business; or (vi) a court order permitting a shareholder to dissent in
connection with an application to the court for an order approving an
arrangement proposed by the corporation. A shareholder is not entitled to
dissent if an amendment to the articles is effected by a court order approving a
reorganization or by a court order made in connection with an action for an
oppression remedy.
Dutch Law does not recognize the concept of appraisal or dissenters' rights
and, accordingly, holders of shares of a Netherlands company have no appraisal
rights. However, on the basis of a general rule of corporate law, the management
of a company (and the other shareholders) must act towards a shareholder in
accordance with the "principles of reasonableness and fairness." Acts in
violation of those principles may be challenged through court proceedings.
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DERIVATIVE ACTION
Under the CBCA, a complainant may apply to the court for leave to bring an
action in the name of and on behalf of a corporation or a subsidiary, or to
intervene in an existing action to which any such body corporate is a party, for
the purpose of prosecuting, defending or discontinuing the action on behalf of
the body corporate. Under the CBCA, no action may be brought and no intervention
in an action may be made unless the complainant gives reasonable notice to the
directors of the corporation or its subsidiary of the complainant's intention to
apply to the court and the court is satisfied that (i) the directors of the
corporation or its subsidiary will not bring, diligently prosecute or defend or
discontinue the action; (ii) the complainant is acting in good faith; and (iii)
it appears to be in the interests of the corporation or its subsidiary that the
action be brought, defended or discontinued.
The CBCA provides that the court in a derivative action may make any order
it thinks fit including, without limitation: (i) an order authorizing the
complainant or any other person to control the conduct of the action; (ii) an
order giving directions for the conduct of the action; (iii) an order directing
that any amount adjudged payable by a defendant in the action shall be paid, in
whole or in part, directly to the former and present security holders of the
corporation or its subsidiary instead of to the corporation or its subsidiary;
and (iv) an order requiring the corporation or its subsidiary to pay reasonable
legal fees incurred by the complainant in connection with the action.
Additionally, under the CBCA, a court may order a corporation or its subsidiary
to pay the complainant's interim costs, including legal fees and disbursements.
Although the complainant may be held accountable for the interim costs on final
disposition of the complaint, it is not required to give security for costs in a
derivative action.
Under Dutch Law, a shareholder cannot institute a lawsuit on behalf of the
company. A company is represented by its management board unless otherwise
provided by law. Unless the articles of association provide otherwise, in all
matters in which the company has a conflict of interests with one or more
members of the board of management, it is represented by its supervisory board
members. The PolyGram Articles do not provide otherwise. The General Meeting has
the power to designate one or more persons to represent the company when a
conflict of interests exists.
OPPRESSION REMEDY
The CBCA provides an oppression remedy that enables the court to make an
order to rectify the matters complained of, if the court is satisfied upon the
application by a complainant (as defined below), that: (i) any act or omission
of the corporation or an affiliate effects a result; (ii) the business or
affairs of the corporation or an affiliate are or have been carried on or
conducted in a manner; or (iii) the powers of the directors of the corporation
or an affiliate are or have been exercised in a manner that is oppressive or
unfairly prejudicial to, or unfairly disregards the interest of, any security
holder, creditor, director or officer of the corporation. A complainant means
(a) a registered holder or beneficial owner, or a former registered holder or
beneficial owner, of a security of a corporation or any of its affiliates; (b) a
director or an officer or a former director or officer of a corporation or of
any of its affiliates; (c) the Director appointed by Industry Canada under the
CBCA to carry out the duties and exercise the powers conferred under the CBCA or
(d) any other person who, in the discretion of the court, is a proper person to
make such application.
Because of the breadth of conduct which can be complained of and the scope
of the court's remedial powers, the oppression remedy is very flexible and is
sometimes relied upon to safeguard the interests of shareholders and other
complainants with a substantial interest in the corporation. Under the CBCA, it
is not necessary to prove that the directors of a corporation acted in bad faith
in order to seek an oppression remedy. Furthermore, the court may order the
corporation to pay the interim expenses of a complainant seeking an oppression
remedy, but the complainant may be held accountable for such interim costs on
final disposition of the complaint (as in the case of a derivative action).
Under Dutch Law, no specific oppression remedy exists; however, there is a
general rule to the effect that a company and those who by virtue of the law or
its articles of association are involved in its organization must act towards
each other in accordance with the requirements of reasonableness and fairness.
An oppressed minority shareholder could rely on this rule to seek a remedy
against the company, members of the Board of Management and possibly the
Supervisory Board or other shareholders.
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Shareholders representing 10% of the issued share capital or shares with an
aggregate nominal value of not less than NLG 500,000 may request that the
Enterprise Chamber of the Amsterdam Court of Appeals issue an order that an
inquiry be conducted within the company. Such an order can be issued if there
are good reasons for doubt that the company is properly managed. If it is
established that there is or was mismanagement, the Enterprise Chamber may take
certain measures, such as the suspension or setting aside of a resolution of any
body of the company, the suspension or dismissal of one or more members of
either Board, temporary deviation from the articles of association or
dissolution of the company.
There are no specific remedies for creditors or Board members. Under Dutch
Law, however, in the event that a party commits or threatens to commit a tort,
the prejudiced or oppressed party may seek an injunction in summary proceedings.
FIDUCIARY DUTIES OF DIRECTORS
Directors of corporations incorporated or organized under the CBCA have
fiduciary obligations to the corporation. Pursuant to these fiduciary
obligations, the directors must act in accordance with their duties of "due
care" and "loyalty."
Pursuant to Section 122 of the CBCA, the duty of loyalty requires directors
of a Canadian corporation to act honestly and in good faith with a view to the
best interests of the corporation, and the duty of care requires that the
directors exercise the care, diligence and skill that a reasonably prudent
person would exercise in comparable circumstances.
Under Dutch Law, there is no specific provision which requires directors to
observe any fiduciary duties. The concept of fiduciary duties as such does not
exist. However, the general rule referred to above under "-- Oppression Remedy"
which requires those involved within the organization of the company to act
reasonably and fairly applies to members of either Board. In the Netherlands,
the duty of care is expressed in terms of a duty to "properly perform"
management or supervisory duties.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under the CBCA, a corporation may indemnify a director or officer, a former
director or officer or a person who acts or acted at the corporation's request
as a director or officer of a body corporate of which the corporation is or was
a shareholder or creditor, and his heirs and legal representatives (an
"Indemnifiable Person") against all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably incurred by
him or her in respect of any civil, criminal or administrative action or
proceeding to which he or she is made a party by reason of being or having been
a director or officer of such corporation or body corporate, if: (i) he or she
acted honestly and in good faith with a view to the best interests of the
corporation; and (ii) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he or she had reasonable
grounds to believe that his or her conduct was lawful. The Seagram By-laws
provide for indemnification of the directors and officers of Seagram to the
fullest extent authorized under the CBCA.
Under the CBCA, a corporation may also, with the approval of the court,
indemnify an Indemnifiable Person in respect of an action by or on behalf of the
corporation or body corporate to procure a judgment in its favor, to which the
person is made a party by reason of being or having been a director or an
officer of the corporation or body corporate, against all costs, charges and
expenses reasonably incurred by the person in connection with such action if he
or she fulfills the conditions set out in clauses (i) and (ii) above. In any
event, an Indemnifiable Person is entitled to indemnity from the corporation in
respect of all costs, charges and expenses reasonably incurred by him or her in
connection with the defense of any civil, criminal or administrative action or
proceeding to which he or she is made a party by reason of being or having been
a director or officer of the corporation or the body corporate, if the
Indemnifiable Person was substantially successful on the merits in his or her
defense of the action or proceeding and fulfills the conditions set out in
clauses (i) and (ii) above.
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Dutch Law does not address the indemnification of members of the board of
management or the supervisory board of a Dutch corporation. It is generally
assumed that a company can indemnify its directors unless such directors act
with gross negligence or wilful misconduct. The articles of association of a
company may contain an indemnification provision. The PolyGram Articles do not
contain any such provision.
DIRECTOR LIABILITY
The CBCA does not address the limitation of directors' liability to the
corporation.
The Seagram By-laws provide that a director or officer will not be liable
for the acts, receipts, neglects or defaults of any other person including any
director or officer or employee or agent, or for joining in any receipt or act
for conformity, or for any loss, damage or expense occurring to the corporation
through the insufficiency or deficiency of title to any property acquired by or
on behalf of the corporation, or for the insufficiency or deficiency of any
security in or upon which any of the moneys of the corporation shall be
invested, or for any loss or damage arising from the bankruptcy, insolvency,
delictual, quasi-delictual or tortious acts of any person with whom any of the
moneys, securities or other property of the corporation shall be deposited, or
for any loss occasioned by an error of judgment or oversight on his part, or for
any other loss, damage or misfortune whatever which may arise out of the
execution of the duties of his office or in relation thereto, unless the same
are occasioned by his own wilful neglect or default; provided that nothing in
the Seagram By-laws will relieve any director or officer from the duty to act in
accordance with the mandatory provisions of the CBCA and the regulations
thereunder or from liability for any breach thereof.
Under Dutch Law, members of either Board are jointly and severally liable
to the company, not its shareholders or creditors, for failure to properly
fulfill their duties. Members of either Board may, in the event of bankruptcy of
the company, be liable towards the trustee in bankruptcy for clearly improper
fulfillment of their duties. The provisions of Dutch Law governing such
liability are mandatory in nature. Consequently, the company may not agree to a
limitation or exclusion of such liabilities, nor may the articles of association
so provide. Accordingly, the PolyGram Articles do not contain such a provision.
In certain exceptional circumstances liability of directors toward third
parties may arise. The company can limit or exclude such liability except where
the director acted with gross negligence or intent or where reliance on the
limitation or exclusion would otherwise be unacceptable according to standards
of reasonableness and fairness.
ANTI-TAKEOVER PROVISIONS; INTERESTED STOCKHOLDER TRANSACTIONS
Policies of certain Canadian Securities Authorities, including Policy Q-27
of the Quebec Securities Commission and Policy 9.1 of the Ontario Securities
Commission ("The Policies"), contain requirements regarding related party
transactions. A related party transaction means, generally, any transaction by
which the issuer, directly or indirectly, acquires or transfers an asset or
acquires or issues treasury securities or assumes or transfers a liability from
or to, as the case may be, a related party by any means in any one transaction
or any combination of transactions. "Related party" is defined in the Policies
and includes, among other things, directors, senior officers and holders of at
least 10% of the voting securities of the issuer.
The Policies require more detailed disclosures in the proxy material sent
to securityholders in connection with a related party transaction and, subject
to certain exemptions, the preparation of a formal valuation of the subject
matter of the related party transaction and any non-cash consideration offered
therefor and the inclusion of a summary of the valuation in the proxy material.
The Policies also require, subject to certain exemptions, that the minority
shareholders of the issuer approve the transaction, by either simple majority or
two-thirds of the votes cast, depending upon the circumstances.
Under Dutch Law, there are no specific provisions on related party
transactions, other than certain provisions relating to conflicts of interests
between the company and a member of the board of management. See "-- Derivative
Action." However, a Dutch court could scrutinize such transactions if they are
challenged. Apart from the provisions described above under "-- Election of
Directors and Director Qualifications" for the appointment of members of either
Board, the PolyGram Articles do not contain any anti-takeover provisions.
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STOCKHOLDER VOTES ON CERTAIN REORGANIZATIONS
See "-- Voting Rights and Quorum" above for a discussion of certain voting
requirements of the CBCA, the Seagram Articles and the Seagram By-laws relating
to certain reorganizations.
Under Dutch Law, the General Meeting must approve (i) any statutory merger
in which the company would not be the surviving entity and (ii) any statutory
division. However, where in a statutory division the company is the acquiring
company or the dividing company becoming the sole shareholder of all newly
formed acquiring companies, the Board of Management may resolve the statutory
division unless shareholders representing not less than 5% of the issued share
capital object.
LEGAL MATTERS
The legality of the Seagram Shares being offered hereby is being passed
upon for Seagram by Goodman, Phillips & Vineberg S.E.N.C.
EXPERTS
The consolidated financial statements of Seagram as of June 30, 1998 and
1997 and for the fiscal years ended June 30, 1998 and 1997, the five-month
period ended June 30, 1996 and the fiscal year ended January 31, 1996
incorporated in this Offering Circular/Prospectus by reference to Seagram's
Annual Report on Form 10-K for the fiscal year ended June 30, 1998, as amended,
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
accounting and auditing.
The consolidated financial statements of PolyGram as of December 31, 1997
and 1996 and for each of the years in the three year period ended December 31,
1997 incorporated in this Offering Circular/Prospectus by reference to the
Annual Report on Form 20-F for the year ended December 31, 1997, have been
audited by KPMG Accountants N.V., as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given on the authority of said firm as experts in
accounting and auditing.
JURISDICTION RESPECTING SEAGRAM
Seagram is a Canadian corporation and certain of its directors and officers
are citizens or residents of countries other than the United States. A
substantial portion of the assets of Seagram and of such persons are located
outside the United States. Accordingly, it may be difficult for investors (i) to
obtain jurisdiction over Seagram and such directors and officers in courts in
the United States in actions predicated on the civil liability provisions of the
United States federal securities laws or to enforce against Seagram or such
persons judgments obtained in such actions; (ii) to obtain judgments against
Seagram or such persons in original actions in Canadian or other foreign courts
predicated solely upon the United States federal securities laws; or (iii) to
enforce against Seagram or such persons in Canadian or other foreign courts
judgments of courts in the United States predicated upon the civil liability
provisions of the United States federal securities laws.
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SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF SEAGRAM
The following table sets forth the name, business address, citizenship,
principal occupation or employment at the present time and during the last five
years, the name and principal business of any corporation or other organization
in which such occupation or employment is or was conducted, of the executive
officers and directors of Seagram. Except as otherwise noted, the business
addresses of such persons is the address of Joseph E. Seagram & Sons, Inc., 375
Park Avenue, New York, New York 10152. Except as otherwise noted, each person
has had the principal occupation or employment listed during the past five
years.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- ----------- -------------------------------
<S> <C> <C>
Edgar M. Bronfman United States Director of Seagram since 1955.
Chairman of the Board of Seagram
since June 1994; previously, also
Chief Executive Officer of Seagram.
The Honourable Canada Director of Seagram since 1958. Co-
Charles R. Bronfman, P.C., C.C. Chairman of the Board and Chairman of
the Executive Committee of Seagram.
Edgar Bronfman, Jr. United States Director of Seagram since 1988.
President and Chief Executive Officer
of Seagram since June 1994;
previously, President and Chief
Operating Officer of Seagram.
Samuel Bronfman II United States Director of Seagram since 1991.
2600 Campus Drive President of Seagram Chateau & Estate
Suite 160 Wines Company (a division of Joseph
San Mateo, CA 94403 E. Seagram & Sons, Inc., a subsidiary
of Seagram); also, Chairman of The
Seagram Beverage Company (a division
of Joseph E. Seagram & Sons, Inc.)
since July 1998.
Matthew W. Barrett, O.C. Canada Director of Seagram since 1995.
First Bank Tower Chairman and Chief Executive Officer
68th Floor of Bank of Montreal (a financial
First Canadian Place institution).
100 King Street West
Toronto, Ontario M5X 1A1
Laurent Beaudoin, C.C. Canada Director of Seagram since 1997.
800 Rene-Levesque Blvd. West Chairman and Chief Executive Officer
30th Floor of Bombardier Inc. (a transportation,
Montreal, Quebec aerospace and motorized products
Canada H3B 1Y8 company).
Frank J. Biondi, Jr. United States Director of Seagram since 1996.
100 Universal City Plaza Chairman and Chief Executive Officer
Universal City, CA 91608 of Universal Studios, Inc. since
April 1996; previously, President,
Chief Executive Officer and a
director of Viacom Inc. (an
entertainment and publishing
company).
</TABLE>
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<PAGE> 125
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- ----------- -------------------------------
<S> <C> <C>
Richard H. Brown United States Director of Seagram since 1997. Chief
124 Theobalds Road Executive of Cable and Wireless plc
London, England WC1X 8RX (a provider of international
telecommunications services) since
July 1996; President and Chief
Executive Officer of H&R Block, Inc.
from May 1995 to July 1996; Vice
Chairman of Ameritech Corporation
from January 1993 to April 1994.
The Honourable Canada Director of Seagram since 1985.
William G. Davis, P.C., C.C., Q.C. Counsel to Tory Tory DesLauriers &
Suite 3000, Aetna Tower Binnington (attorneys).
79 Wellington Street West
Toronto, Ontario
Canada M5K 1N2
Andre Desmarais Canada Director of Seagram since 1997.
751 Victoria Square President and Co-Chief Executive
Montreal, Quebec Officer of Power Corporation of
Canada H2Y 2J3 Canada (a holding and management
company) and Deputy Chairman of Power
Financial Corporation since May 1996;
Chairman of Power Pacific Corporation
Limited from May 1994 to May 1996;
previously, President and Chief
Operating Officer of Power
Corporation of Canada.
Barry Diller United States Director of Seagram since February
152 West 57th Street 1998. Chairman and Chief Executive
42nd Floor Officer of USA Networks, Inc. (a
New York, New York 10019 diversified media and electronic
commerce company formerly known as
HSN, Inc.) since February 1996; from
August 1995, Chairman and Chief
Executive Officer of Silver King
Communications, Inc. and from
November 1995, Chairman of Home
Shopping Network, Inc. until the
merger of those companies into HSN,
Inc. in December 1996; Chairman and
Chief Executive Officer of QVC, Inc.
from December 1992 to December 1994.
Michele J. Hooper United States Director of Seagram since 1996.
600 Penn Center Blvd. President and Chief Executive Officer
Pittsburgh, Pennsylvania 15235-5810 of Stadtlander Drug Co., Inc. (a
health services company) since July
1, 1998; previously, Corporate Vice
President and President of the
International Business Group of
Caremark International Inc.
David L. Johnston, C.C., Canada Director of Seagram since 1987.
3690 Peel Street Professor of Law at McGill University
Room 200 (an educational institution) since
Montreal, Quebec July 1994; previously, also Principal
Canada H3A 1W9 and Vice Chancellor of McGill
University.
</TABLE>
I-2
<PAGE> 126
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- ----------- -------------------------------
<S> <C> <C>
The Honourable E. Leo Kolber, Senator Canada Director of Seagram since 1971.
c/o Claridge Inc. Member of the Senate of Canada;
1170 Peel Street Chairman of the Board of Claridge
8th Floor Inc. (a management company) from July
Montreal, Quebec 1987 to September 1993.
Canada H3B 4P2
Marie-Josee Kravis, O.C. Canada Director of Seagram since 1985.
Senior Fellow of Hudson Institute
Inc. (a non-profit economics research
institute) since March 1994;
previously, Executive Director of The
Hudson Institute of Canada Inc.
Robert W. Matschullat United States Director of Seagram since 1995. Vice
Chairman and Chief Financial Officer
of Seagram since October 1995;
previously, Managing Director and
Head of Worldwide Investment Banking
for Morgan Stanley & Co., Inc. and a
director of Morgan Stanley Group,
Inc. (investment bankers).
C. Edward Medland Canada Director of Seagram since 1973.
121 King Street West President of Beauwood Investments
Suite 2525 Inc. (a private investment company)
Toronto, Ontario since July 1994; previously,
Canada M5H 3T9 Corporate Director of Beauwood
Investments Inc.
Samuel Minzberg Canada Director of Seagram since February
1170 Peel Street 1998. President and Chief Executive
8th Floor Officer of Claridge Inc. since
Montreal, Quebec January 1, 1998; also, of counsel to
Canada H3B 4P2 the Montreal office of Goodman
Phillips & Vineberg S.E.N.C.
(attorneys); previously, a partner
and Chairman of the Montreal office
of Goodman, Phillips & Vineberg.
John S. Weinberg United States Director of Seagram since 1995.
85 Broad Street Managing Director of Goldman, Sachs &
New York, NY 10004 Co. (investment bankers) since 1996;
previously, General Partner of
Goldman, Sachs & Co.
John D. Borgia United States Executive Vice President, Human
Resources of Seagram since 1995;
previously, Senior Vice President,
Human Resources & Administration,
Bristol, Myers Squibb Pharmaceutical
Group.
</TABLE>
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<PAGE> 127
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- ----------- -------------------------------
<S> <C> <C>
Steven J. Kalagher United States Executive Vice President of Seagram
and President and Chief Executive
Officer, The Seagram Spirits And Wine
Group (a division of Joseph E.
Seagram & Sons, Inc.) since September
1997; Executive Vice President of
Seagram and President, The Seagram
Spirits And Wine Group from May 1995
to September 1997; Reengineering
Leader from May 1994 to May 1995;
previously, President of Seagram
North America (a division of The
Seagram Spirits And Wine Group).
Daniel R. Paladino United States Executive Vice President, Legal and
Environmental Affairs of Seagram
since October 1996; previously, Vice
President, Legal and Environmental
Affairs of Seagram.
Neal B. Cravens United States Senior Vice President, Finance of
Seagram since July 1, 1998; Vice
President, Strategic Planning and
Mergers & Acquisitions of Joseph E.
Seagram & Sons, Inc. from 1996 to
1998; Executive Vice President and
Chief Financial Officer of Tropicana
Products, Inc. from 1995 to 1996;
Senior Vice President, Finance, of
Tropicana Products, Inc. from 1994 to
1995; Vice President, Strategic
Planning and Business Development, of
Joseph E. Seagram & Sons, Inc. from
1993 to 1994.
Gabor Jellinek Canada Vice President, Production of Seagram
1430 Peel Street and Executive Vice President,
Montreal, Quebec Manufacturing, The Seagram Spirits
Canada H3A 1390 And Wine Group.
Arnold M. Ludwick Canada Vice President of Seagram.
c/o Claridge Inc.
1170 Peel Street
8th Floor
Montreal, Quebec
Canada H3B 4P2
John R. Preston United States Vice President and Treasurer of
Seagram since July 1, 1998. Vice
President, Finance of Seagram, from
January 1997 to June 1998;
Reengineering Financial
Management/Post Merger Integration
Team Leader From 1994 to February
1997; previously, Executive Vice
President, Staff Operations of The
Seagram Spirits And Wine Group.
Michael C. L. Hallows Canada Secretary of Seagram.
</TABLE>
I-4
<PAGE> 128
CERTAIN TRUSTEES
The trustees of the trusts for the benefit of Edgar M. Bronfman and his
descendants referenced under "The Seagram Company Ltd." are Edgar M. Bronfman,
Edgar Bronfman, Jr., Matthew Bronfman, Harold R. Handler, Mayo A. Shattuck III
and John L. Weinberg. The trustees of the trusts for the benefit of Charles R.
Bronfman and his descendants referenced under "The Seagram Company Ltd." are
Stephen R. Bronfman, Ellen J. Bronfman Hauptman, Trevor Carmichael, Neville
LeRoy Smith, Bruce I. Judelson, Gary J. Gartner, Steven H. Levin, Arnold M.
Ludwick, Jeffrey D. Scheine and Robert S. Vineberg. The trustees of the trusts
for the benefit of the family of the late Minda de Gunzburg referenced under
"The Seagram Company Ltd." are Stanley N. Bergman, Dr. Guido Goldman and Leonard
M. Nelson. The directors of the first two charitable foundations referenced
under "The Seagram Company Ltd." include Charles R. Bronfman, Stephen R.
Bronfman, Ellen J. Bronfman Hauptman and Arnold M. Ludwick, the trustees of the
third charitable foundation include Edgar M. Bronfman, Charles R. Bronfman,
Samuel Bronfman II, Edgar Bronfman, Jr., Robert W. Matschullat and Daniel R.
Paladino and the directors of the fourth charitable foundation include Phyllis
Lambert, Matthew Bronfman and Stephen R. Bronfman. Set forth below are the
business address, citizenship, principal occupation or employment at the present
time and during the last five years, and the name and principal business of any
corporation or other organization in which such occupation or employment is or
was conducted, of each of the foregoing persons for which such information is
not presented under "Directors and Executive Officers of Seagram" above. Except
as otherwise noted, each person has had the principal occupation or employment
listed during the past five years.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- ----------- -------------------------------
<S> <C> <C>
Phyllis Lambert Canada Architect.
1920 Baile Street
Montreal, Quebec
Canada H3H 2S6
Matthew Bronfman United States Chief Executive Officer of Perfumes
30 West 26th Street Isabell, Inc. (a perfume company).
2nd Floor
New York, NY 10010
Stephen R. Bronfman Canada Private Investor.
c/o Claridge Inc.
1170 Peel Street
8th Floor
Montreal, Quebec
Canada H3B 4P2
Ellen J. Bronfman Hauptman Canada Private Investor.
c/o Withers Solicitors
12 Gough Square
London, England EC4A 3DE
Harold R. Handler United States Attorney whose professional
425 Lexington Avenue corporation is of counsel to Simpson
New York, NY 10017 Thacher & Bartlett (attorneys) since
January 1998; previously, attorney
whose professional corporation was a
partner of Simpson Thacher &
Bartlett.
Mayo A. Shattuck III United States Co-Chairman and Co-Chief Executive
BT Alex. Brown Incorporated Officer of BT Alex. Brown
1 South Street Incorporated and Vice Chairman of
Baltimore, MD 21202 Bankers Trust Corporation since
September, 1997; previously,
President and Chief Operating Officer
of Alex. Brown & Sons Incorporated
(investment bankers).
</TABLE>
I-5
<PAGE> 129
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- ----------- -------------------------------
<S> <C> <C>
John L. Weinberg United States Senior Chairman of Goldman, Sachs &
85 Broad Street Co. (investment bankers).
New York, NY 10004
Robert S. Vineberg Canada Partner of Goodman Phillips &
1501 McGill College Avenue Vineberg S.E.N.C. (barristers and
26th Floor solicitors).
Montreal, Quebec
Canada H3A 3N9
Gary J. Gartner Canada Resident Counsel of Goodman Phillips
430 Park Avenue & Vineberg S.E.N.C. (attorneys).
10th Floor
New York, NY 10022
Steven H. Levin United States Resident Counsel of Goodman Phillips
430 Park Avenue & Vineberg S.E.N.C.
10th Floor
New York, New York 10022
Jeffrey D. Scheine United States Resident Counsel of Goodman Phillips
430 Park Avenue & Vineberg S.E.N.C.
10th Floor
New York, New York 10022
Trevor Carmichael, Q.C. Barbados Barrister, Chancery Chambers
Chancery Chambers, (attorneys).
Chancery House
High Street
Bridgetown, Barbados
Neville LeRoy Smith Barbados Managing Director of Royal Bank of
Sunset Drive Canada Financial Corporation (a
Pine Gardens financial institution).
St. Michael, Barbados
Bruce I. Judelson United States Partner of Bergman, Horowitz &
157 Church Street Reynolds, P.C. (attorneys).
New Haven, CT 06510
Stanley N. Bergman United States Partner of Bergman, Horowitz &
157 Church Street Reynolds, P.C.
New Haven, CT 06510
Dr. Guido Goldman United States Director of German Studies at the
First Spring Corporation Center for European Studies at
499 Park Avenue Harvard University and Chairman of
New York, NY 10022 First Spring Corporation (an
investment company) since July, 1994;
previously, Director of the Center
for European Studies at Harvard
University.
Leonard M. Nelson United States Shareholder of Bernstein, Shur,
100 Middle Street Sawyer & Nelson, P.C. (attorneys).
Portland, ME 04104
</TABLE>
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<PAGE> 130
APPENDIX A
[LAZARD FRERES & CO. LLC LETTERHEAD]
June 21, 1998
The Supervisory Board
The Board of Management
PolyGram N.V.
Gerrit van der Veenlaan 4
3743 DN Baarn
The Netherlands
Dear Members of the Boards:
We understand that The Seagram Company Ltd., a corporation organized under
the laws of Canada ("Purchaser"), PolyGram N.V., a corporation organized under
the laws of The Netherlands (the "Company"), and Koninklijke Philips Electronics
N.V., a corporation organized under the laws of The Netherlands ("Stockholder"),
have entered into an Offer Agreement dated as of June 21, 1998 (the
"Agreement"), pursuant to which Purchaser will acquire the Company (the
"Transaction") in accordance with the terms of the Agreement by commencing an
offer (the "Offer") to acquire all issued and outstanding shares of common
stock, par value NLG 0.50 per share, of the Company (the "Company Shares") for
consideration per Company Share equal to, at the election of each holder of
Company Shares, either (i) 1.3772 validly issued, fully paid and nonassessable
common shares, without nominal or par value (the "Purchaser Shares"), of
Purchaser (the "Share Consideration") or (ii) NLG 115.00, net to the seller in
cash, without interest (the "Cash Consideration" and, together with the Share
Consideration, the "Offer Consideration"). Pursuant to the terms of the
Agreement, the Share Consideration will be subject to proration in the event
holders of Company Shares elect to receive more than the maximum amount of Share
Consideration specified in the Agreement, and Stockholder has agreed in the
Agreement to elect to receive Share Consideration in respect of all Company
Shares owned by it (which represent approximately 75% of the outstanding Company
Shares), so that the public stockholders of the Company, should they so elect,
will all be entitled to receive Cash Consideration in respect of their entire
amount of Company Shares. The Agreement further provides that holders of Company
Shares who do not make a valid election will receive the Cash Consideration for
their Company Shares in the Offer. We further understand that Purchaser and
Stockholder have entered into a Tender Agreement and a Voting Agreement, each
dated as of June 21, 1998, relating to Stockholder's voting and disposition of
its Company Shares prior to closing of the Offer, and a Stockholders Agreement
dated as of June 21, 1998 relating to Stockholder's Purchaser Shares received
pursuant to the Offer.
You have requested our opinion as to the fairness, from a financial point
of view, to the holders of the Company Shares of the Offer Consideration. In
connection with this opinion, we have:
(i) Analyzed certain historical business and financial information
relating to Purchaser and the Company, including Annual Reports on Form
10-K of the Purchaser, Quarterly Reports on Form 10-Q of the Purchaser and
the Annual Reports on Form 20-F for the Company;
(ii) Reviewed various financial forecasts and other data provided to
us by Purchaser and the Company relating to their respective businesses
(such forecasts, in the case of Purchaser, being limited to 1998, Purchaser
having informed us that no longer term forecasts are available), and the
benefits projected by Purchaser and the Company to be realized in
connection with the Transaction;
(iii) Held discussions with and been provided information by members
of the senior managements of Purchaser and the Company with respect to the
businesses and prospects of Purchaser and the
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<PAGE> 131
Company, respectively, and the possible benefits which might be realized in
connection with the Transaction;
(iv) Reviewed public information with respect to certain other
companies in lines of businesses we believe to be generally comparable to
the businesses of Purchaser and the Company;
(v) Reviewed the financial terms of certain business combinations
involving companies in lines of businesses we believe to be generally
comparable to the businesses of Purchaser and the Company, and in other
industries generally;
(vi) Reviewed the historical stock prices and trading volumes of the
Purchaser Shares and the Company Shares; and
(vii) Conducted such other financial studies, analyses and
investigations as we deemed appropriate.
We have relied upon the accuracy and completeness of the foregoing
information, forecasts, data and financial terms and have not assumed any
responsibility for any independent verification of such information or any
independent valuation or appraisal of any of the assets or liabilities of
Purchaser or the Company. With respect to financial forecasts, including the
benefits projected by Purchaser and the Company to be realized in connection
with the Transaction, we have assumed that they have been reasonably prepared on
bases reflecting the best currently available estimates and judgments of
management of Purchaser and the Company as to the future financial performance
of Purchaser and the Company, respectively, and as to such projected benefits.
We assume no responsibility for and express no view as to such forecasts or
projected benefits or the assumptions on which they are based.
Further, our opinion is necessarily based on economic, monetary, market and
other conditions as in effect on, and the information made available to us as
of, the date hereof. We do not express any opinion regarding the likely trading
range of the Purchaser Shares following the consummation of the Transaction,
which may vary depending upon, among other factors, changes in interest rates,
dividend rates, market conditions, general economic conditions and other factors
that generally influence the price of securities. This opinion does not address
the underlying business decision to effect the Transaction. This opinion also
does not address the $90 million capital contribution to the Company which
Stockholder has agreed to make in connection with the Transaction.
In rendering our opinion, we have assumed that the Transaction will be
consummated on the terms described in the Agreement, without any waiver of any
material terms or conditions by the Company, and that obtaining the necessary
regulatory approvals for the Transaction will not have an adverse effect on
Purchaser or the Company.
We are acting as investment banker to the Company in connection with the
Transaction and will receive a fee for our services, a substantial portion of
which is payable upon consummation of the Transaction. We are not regulated by
any authority or body in The Netherlands, and are rendering this opinion in
accordance with customary practice in the United States. With your consent,
after consultation with counsel, we have assumed that law, custom and practice
in The Netherlands relating to opinions such as the one being delivered hereby
are not materially different from those in the United States. We have in the
past provided investment banking and financial advisory services to Stockholder
and Purchaser, for which we have received customary fees. A senior advisor of
ours is a member of the Company's Supervisory Board.
Our engagement and the opinion expressed herein are for the benefit of the
Company's Supervisory Board and Board of Management and our opinion is rendered
to the Company's Supervisory Board and Board of Management in connection with
their consideration of the Transaction. This opinion is not intended to and does
not constitute a recommendation to any holder of Company Shares as to whether
such holder should tender such Company Shares into the Offer. It is understood
that this letter may not be disclosed or otherwise referred to without our prior
consent, except as may otherwise be required by law or by a court of competent
jurisdiction and except that the Company may reproduce this letter in full in
any statement on Schedule 14D-9 relating to the Offer that the Company files
under the Securities Exchange Act of 1934 and distributes to its stockholders
(or any similar document under the laws of The Netherlands relating to the
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<PAGE> 132
Offer) and, in such event, the Company may also include therein references to,
and a description of, this letter and to us and our relationship with the
Company (in each case in such form as we shall reasonably approve).
Based upon and subject to the foregoing, we are of the opinion that the
Offer Consideration is fair to the stockholders of the Company from a financial
point of view.
Very truly yours,
LAZARD FRERES & CO. LLC
By /s/ ROBERT E. HOUGIE
------------------------------------
Managing Director
A-3
<PAGE> 133
APPENDIX B
CERTAIN INFORMATION REQUIRED
BY THE DUTCH MERGER CODE
For ease of reference, this Appendix contains certain information required
by the Dutch Merger Code. This information has been included in more detail in
the text of the Offering Circular/Prospectus to which this Appendix is attached.
See the pages of the Offering Circular/Prospectus referenced in certain of the
paragraphs set forth below. The holders of PolyGram Shares are urged to read
carefully the entire Offering Circular/Prospectus. For the other information
prescribed by the Dutch Merger Code in addition to these statements, reference
is made to the text of the Offering Circular/Prospectus. Unless explicitly
defined otherwise herein, capitalized terms used in this Appendix have the
meanings ascribed to them in the Offering Circular/Prospectus.
1. Seagram, PolyGram and Philips have conferred with each other and have
reached an agreement in relation to the Offer. On June 21, 1998,
following approval of Seagram's Board of Directors and the Board of
Management and Supervisory Board of each of PolyGram and Philips, the
parties executed the Offer Agreement and related agreements. (Pages 23
through 25 of the Offering Circular/Prospectus under "The
Offer -- Background of the Offer," and in particular page 25).
2. Each of the PolyGram Board of Management, by unanimous vote, and the
PolyGram Supervisory Board, by affirmative vote of all directors
(other than two designees of Philips, who abstained) has determined
that the Offer is in the best interests of PolyGram and is fair to the
PolyGram shareholders and has approved the Offer Agreement; taking
into account, among other things, the considerations as set forth on
pages 33 and 34 of the Offering Circular/Prospectus, they recommend
that PolyGram shareholders tender their PolyGram Shares in the Offer.
(Pages 33 and 34 of the Offering Circular/Prospectus under "The
Offer -- PolyGram's Reasons for the Offer; Recommendation of the
PolyGram Board of Management and the PolyGram Supervisory Board").
3. The Offer is made pursuant to the Offer Agreement in respect of all
issued PolyGram Shares and the terms and conditions of the Offer will
be the same for all PolyGram shareholders. (Page 40 of the Offering
Circular/Prospectus under "The Offer -- Terms of the Offer").
4. For a motivation of the Offer Consideration, reference is made to page
34 through 40 of the Offering Circular/Prospectus under "The
Offer -- Opinion of PolyGram Financial Advisor." The Cash
Consideration, the refinancing of certain of PolyGram's existing
indebtedness and the fees and expenses relating to the Offer will be
partially financed through Seagram's sale of Tropicana to Pepsi, the
after-tax proceeds of which are estimated to be approximately $3
billion. Seagram expects to obtain the remaining funds from debt
securities, the terms of which have yet to be determined, to be issued
by Joseph E. Seagram & Sons, Inc. an Indiana corporation and an
indirect wholly owned subsidiary of Seagram, and expected to be
guaranteed by Seagram, and/or commercial bank borrowings and/or the
issuance of commercial paper, the terms of which have yet to be
determined. (Pages 57 through 59 of the Offering Circular/Prospectus
under "The Offer -- Source and Amount of Funds" and page 100 under
"The Seagram Company Ltd. -- Recent Developments").
5. The Offer Agreement states that Seagram intends, simultaneously with
or as soon as practicable following the consummation of the Offer, to
effectuate a corporate reorganization of PolyGram and its
subsidiaries, which may include the amendment of the Articles of
Association of PolyGram to permit the creation, among other things, of
separate classes of Shares. (Page 73 of the Offering
Circular/Prospectus under "Description of Transaction
Agreements -- Offer Agreement -- Post-Closing Restructuring"). At the
Special Meeting, Seagram designees will be nominated for election to
the Board of Management and the Supervisory Board of PolyGram
effective as of the Closing Date (page 29 of the Offering
Circular/Prospectus under "The Offer -- Purpose of the Offer; Plans
for PolyGram -- PolyGram Board Representation") and amendments to the
PolyGram Articles
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<PAGE> 134
will be submitted to the PolyGram shareholders which would (i) clarify
the Board of Management's ability to declare dividends, including a
Post-Closing Dividend (pages 28 and 68 of the Offering
Circular/Prospectus under "The Offer -- Purpose of the Offer; Plans
for PolyGram -- Post Closing Restructuring; Post-Closing Dividend" and
"Certain Material Tax Consequences -- Tax Consequences of a
Post-Closing Dividend") and (ii) change PolyGram's fiscal year end
from December 31 to June 30. Each of these amendments would be
conditioned on the Minimum Condition having been satisfied (but not
waived) and effective as of the consummation of the Offer. Philips has
informed Seagram that it intends to vote in favor of the Seagram
designees and the amendments to the PolyGram Articles. (Page 88 of the
Offering Circular/Prospectus under "Description of Transaction
Agreements -- Voting Agreement").
6. Seagram's Board of Directors believes that consummation of the Offer
will constitute a further step in the implementation of Seagram's
strategy of transforming itself into a global entertainment leader. As
a result of the acquisition of PolyGram, Seagram will own the largest
music company in the world, which will complement Universal's theme
park business, major motion picture studio and world wide television
production and distribution assets. As part of its strategy, Seagram
sold Tropicana. (Page 31 of the Offering Circular/Prospectus under
"The Offer -- Seagram's Reasons for the Offer" and page 100 under "The
Seagram Company Ltd. -- Recent Developments").
7. Pursuant to the Offer Agreement, PolyGram has retained Goldman Sachs
as its principal financial advisor for the purpose of selling
PolyGram's film division as promptly as practicable. The sale process
is being managed by a three-member committee consisting of one
designee of each of Seagram, PolyGram and Philips; provided, that
Seagram has the right to veto, in its sole discretion, any decision of
such committee, including approval of any specific proposal to sell
the film division. On October 22, 1998, Seagram announced that it had
entered into an agreement in principle with MGM to sell certain
library assets of PolyGram's film division to a direct or indirect
wholly owned subsidiary of MGM following Seagram's acquisition of
PolyGram. Discussions with other parties regarding the sale of certain
other library assets of PolyGram's film division have taken place, and
Seagram is continuing to examine strategic alternatives regarding the
film division's production and distribution operations. (Page 29 of
the Offering Circular/Prospectus under "The Offer -- Purpose of the
Offer; Plans for PolyGram -- Sale of Film Division" and page 104 of
the Offering Circular/Prospectus under "PolyGram N.V. -- Recent
Developments").
8. Pursuant to the Offer Agreement, Philips has agreed to cause, upon
Seagram's request, the members of the Supervisory Board of PolyGram to
resign as of the Closing Date, except for any member who Seagram
indicates it would like to remain as a member of such Board. As soon
as practicable after the Commencement Date, Seagram will provide
PolyGram and Philips with the names of the individuals Seagram wishes
to be appointed to, or remain as members of, the Board of Management,
and the Supervisory Board of PolyGram effective as of the Closing
Date. (Page 29 of the Offering Circular/Prospectus under "The
Offer -- Purpose of the Offer; Plans for PolyGram -- PolyGram Board
Representation").
9. In connection with the resignation of any members of the Supervisory
Board of PolyGram, as described on page 29 of the Offering
Circular/Prospectus under "The Offer -- Purpose of the Offer; Plans
for PolyGram -- PolyGram Board Representation," no fees or other
payments will be due or payable to such members. (Page 65 of the
Offering Circular/Prospectus).
10. As of the date of publication of this Offering Circular/Prospectus,
Seagram does not, directly or indirectly, own any PolyGram Shares.
(Pages i and 100 of the Offering Circular/Prospectus).
11. As of the date of publication of this Offering Circular/Prospectus
PolyGram does not, directly or indirectly, own any Seagram Shares.
(Page 100 of the Offering Circular/Prospectus).
12. Pursuant to the Tender Agreement, Philips has agreed, for so long as
the Offer Agreement is in effect, to validly tender pursuant to and in
accordance with the terms of the Offer and not withdraw such tender of
all of its 135,000,000 PolyGram Shares (75% of the issued PolyGram
Shares as of the date of the Offering Circular/Prospectus) and to
elect to receive Share Consideration in respect
B-2
<PAGE> 135
of all such PolyGram Shares. Pursuant to the Offer Agreement, to the
extent fully permitted by law, PolyGram has agreed to validly tender
pursuant to the Offer and not withdraw such tender of all of the
PolyGram Shares held in treasury as of the Expiration Date (1,645,526,
or approximately 0.9% of the issued PolyGram Shares as of September
30, 1998) and to elect to receive Cash Consideration in respect of
such PolyGram Shares. PolyGram has informed Seagram that, consistent
with its historical practice, it intends to deliver treasury shares,
to the extent available, rather than issue additional PolyGram Shares
in connection with the exercise of PolyGram employee stock options,
prior to the Expiration Date (3,548,704 of which were outstanding as
of September 30, 1998). Accordingly, the number of PolyGram Shares
held in treasury will decrease to the extent PolyGram employee stock
options are exercised prior to the Expiration Date. As of the date of
the Offering Circular/Prospectus, no other PolyGram shareholder has
confirmed to Seagram that it will accept the Offer. (Pages i and 43 of
the Offering Circular/Prospectus).
13. Except as disclosed in the Offering Circular/Prospectus, during the
past three years, neither Seagram nor any company belonging to the
same group as Seagram acquired, directly or indirectly, from any
member of the Board of Management or the Supervisory Board of
PolyGram, their spouses or minor children or any legal entity
controlled by such persons, any PolyGram Shares, and neither Seagram
nor any such group company has entered into agreements, contracts or
transactions with any of such persons which will result in the
acquisition of any PolyGram Shares. (Page 100 of the Offering
Circular/Prospectus).
14. Except as disclosed in the Offering Circular/Prospectus, during the
past three years, neither Seagram nor any company belonging to the
same group as Seagram acquired, directly or indirectly, from any third
parties, any PolyGram Shares and neither Seagram nor any such group
company has entered into agreements, contracts or transactions with
any third parties which will result in the acquisition of any PolyGram
Shares. Seagram and its subsidiaries may purchase PolyGram Shares
during but outside of the Offer, subject to certain conditions,
pursuant to relief from Rule 10b-13 under the U.S. Exchange Act
granted by the SEC. (Pages 29 and 30 of the Offering
Circular/Prospectus under "The Offer -- Purpose of the Offer; Plans
for PolyGram -- Possible Purchases of PolyGram Shares" and page 100 of
the Offering Circular/Prospectus under "The Seagram Company Ltd.").
15. Prior to the Commencement Date, in accordance with Article 8 of the
Dutch Merger Code, each of the management and supervisory board
members of PolyGram and the members of the Board of Directors of
Seagram has submitted to the Dutch Merger Committee, in each case
solely on his own behalf, all information that Article 8 requires it
to submit to the Dutch Merger Committee. (Page 61 of the Offering
Circular/Prospectus under "The Offer -- Certain Regulatory Approvals
and Legal Matters -- Dutch Merger Committee; Dutch Securities Board").
16. On May 27, 1998, the Dutch Merger Committee sent to Philips a
notification relating to compliance with sections II and III of the
Dutch Merger Code.
17. Seagram has concluded that the acquisition of PolyGram presents
significant opportunities for cost savings and operating efficiencies.
Seagram estimates that integration of PolyGram with Universal will
yield annual operating cost savings of $275-300 million within two
years after the Closing. (Page 32 of the Offering Circular/Prospectus
under "The Offer -- Seagram's Reasons for the Offer").
18. The payment of future dividends on the Seagram Shares will be a
business decision to be made by Seagram's Board of Directors from time
to time based upon the results of operations and financial condition
of Seagram and such other factors as Seagram's Board of Directors
considers relevant. (Page 16 of the Offering Circular/Prospectus).
19. Pursuant to the Stockholders Agreement, effective as of the Closing,
Seagram has agreed to appoint the Chief Executive Officer of Philips
(the "Designee") to the Seagram Board of Directors. After the Closing,
Philips will be entitled to designate its then Chief Executive Officer
as its Designee for
B-3
<PAGE> 136
nomination for election to the Seagram Board of Directors for so long
as the Applicable Percentage is at least 5%. Seagram has agreed to use
its best efforts to cause the election of the Designee to the Seagram
Board of Directors, including by nominating such individual to be
elected to the Seagram Board. No other changes in the Seagram Board of
Directors are expected as a result of the Offer. (Pages 13, 14, 88 and
89 of the Offering Circular/Prospectus under "Summary -- Stockholders
Agreement -- Seagram Board" and "Description of Transaction
Agreements -- Stockholders Agreement -- Seagram Board of Directors,"
respectively).
20. All information contained or incorporated by reference in this
Offering Circular/Prospectus relating to Seagram and the Offer has
been supplied by Seagram, all such information relating to PolyGram
has been supplied by PolyGram and all such information relating to
Philips has been supplied by Philips, or has been taken from or based
upon publicly available documents on file with the SEC and other
publicly available information. Although Seagram does not have any
knowledge that would indicate that any of the information relating to
PolyGram or Philips is inaccurate or untrue in any material respect,
no assurance can be given that no facts or events of which it is
unaware exist that may affect the significance or accuracy of the
information furnished. (Page 2 of the Offering Circular/Prospectus).
21. Various factors, in addition to those discussed elsewhere in the
Offering Circular/Prospectus and in the documents which are
incorporated by reference into the Offering Circular/Prospectus (of
which this Appendix is a part), could affect the financial results of
PolyGram through the end of its 1998 fiscal year and beyond. Such
factors include the announcement and performance of the Offer and the
transactions contemplated thereby and those factors set forth under
"Forward-Looking Statements," "The Offer -- Background of the Offer,"
"-- Purpose of the Offer; Plans for PolyGram," "-- Possible Effects of
the Offer on the Market for PolyGram Shares," "-- PolyGram's Reasons
for the Offer; Recommendation of the PolyGram Board of Management and
the PolyGram Supervisory Board," "Opinion of the PolyGram Financial
Advisor," "Summary -- Seagram Selected Unaudited Pro Forma Financial
Information," and "The Seagram Company Ltd. Unaudited Pro Forma
Financial Information," as well as the following: (a) as is the case
with other industry participants, PolyGram's operating results are
significantly affected by changes or developments in the music and
film industry generally, including changing audience tastes; (b) it is
in the nature of the recorded music business that a small number of
artists, and the timing of the delivery of their product, may prove
material to PolyGram's sales and income from operations in any one or
more financial reporting periods; (c) as is the case with other
participants in the music and film industry, PolyGram's financial
performance has been, and is likely to continue to be, affected by
changes in general economic conditions, including developments in the
global economy and world markets (in particular, Asia) and (d) the
music industry generally, including PolyGram, realizes a significant
proportion of its sales in the final quarter of each calendar year
and, therefore, full year results will be materially affected by
performance in that quarter, which in turn may be affected by the
various factors described herein.
With respect to anticipated sales or income from operations, certain
factors in addition to the ones described in the preceding paragraph
may cause PolyGram's full year results for fiscal 1998 to differ from
the results for prior periods, including the following: (a) the terms
of the Offer Agreement, including PolyGram's obligation to comply with
the interim operating covenants, as well as the period of uncertainty
generated by the announcement of the pending acquisition of PolyGram
by Seagram; and (b) the contemplated sale, as provided in the Offer
Agreement, of PolyGram's film business.
As a result of the foregoing factors, PolyGram does not as a matter of
practice and is not now in a position to make any forward looking
statement regarding its full year sales or income from operations for
fiscal year 1998.
B-4
<PAGE> 137
The Letter of Transmittal, certificates for PolyGram U.S. Registered Shares
and any other required documents should be sent or delivered by each holder of
PolyGram U.S. Registered Shares or such holder's broker, dealer, commercial
bank, trust company or other nominee to the U.S. Exchange Agent as follows:
The U.S. Exchange Agent for the Offer is:
CITIBANK, N.A.
1-800-422-2066
<TABLE>
<S> <C> <C>
BY COURIER BY MAIL BY HAND
c/o Citicorp Data Distribution, Inc. c/o Citicorp Data Distribution, Inc. 111 Wall Street
400 Sette Drive Post Office Box 7073 5th Floor Receive Window
Paramus, New Jersey 07652 Paramus, New Jersey 07653 New York, New York
</TABLE>
The Application Form, certificates for Dutch PolyGram Shares, if any, and
any other required documents should be sent or delivered by each holder of Dutch
PolyGram Shares or such holder's Custodian to the Dutch Exchange Agent as
follows:
The Dutch Exchange Agent for the Offer is:
MEESPIERSON N.V.
31-20-527-1447
BY MAIL, HAND OR OVERNIGHT DELIVERY:
Rokin 55
1012 KK Amsterdam
Any questions and requests for assistance may be directed to the
Information Agent or the Dealer Manager at their respective telephone numbers
and addresses listed below. Additional copies of this Offering
Circular/Prospectus, the Letter of Transmittal and the Notice of Guaranteed
Delivery may also be obtained from the Information Agent. You may also contact
your broker, dealer, commercial bank or trust company for assistance concerning
the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212) 269-5550
ALL OTHERS CALL TOLL FREE (800) 714-3311
The Dealer Managers for the Offer are:
MORGAN STANLEY DEAN WITTER
<TABLE>
<S> <C>
UNITED STATES EUROPE
1585 Broadway Canary Wharf
New York, New York 10036 25 Cabot Square
(800) 761-8950, Ext. 17938 London E14 4QA
1-71-425-5082
</TABLE>
and
BEAR, STEARNS & CO. INC.
<TABLE>
<S> <C>
UNITED STATES EUROPE
245 Park Avenue Bear, Stearns International Limited
New York, New York 10167 One Canada Square
(877) 316-0172 London E14 5AD England
1-71-516-6936
</TABLE>
<PAGE> 1
Exhibit 11(a)(2)
LETTER OF TRANSMITTAL/ELECTION FORM
TO TENDER SHARES
OF
POLYGRAM N.V.
PURSUANT TO THE OFFER
BY
THE SEAGRAM COMPANY LTD.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 3:00 P.M., AMSTERDAM TIME (9:00 A.M.,
NEW YORK CITY TIME), ON FRIDAY, DECEMBER 4, 1998, UNLESS THE OFFER IS EXTENDED.
THE U.S. EXCHANGE AGENT FOR THE OFFER IS:
Citibank, N.A.
1-800-422-2066
<TABLE>
<S> <C> <C>
BY COURIER BY MAIL BY HAND
c/o Citicorp Data Distribution, c/o Citicorp Data Distribution, 111 Wall Street
Inc. Inc. 5th Floor Receive Window
400 Sette Drive Post Office Box 7073 New York, New York
Paramus, New Jersey 07652 Paramus, New Jersey 07653
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL/ELECTION FORM TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL/ELECTION FORM
SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL/ELECTION FORM IS
COMPLETED.
This Letter of Transmittal/Election Form is to be completed by holders of
shares, par value NLG 0.50 per share ("PolyGram Shares"), of PolyGram N.V., a
corporation incorporated under the laws of the Netherlands ("PolyGram"), either
(i) if certificates ("PolyGram Certificates") representing PolyGram U.S.
Registered Shares (as defined in the Offering Circular/Prospectus dated November
4, 1998 (the "Offering Circular/Prospectus")) are to be forwarded herewith or
(ii) unless an Agent's Message (as defined in the Offering Circular/Prospectus)
is utilized, if tenders of PolyGram U.S. Registered Shares are to be made by
book-entry transfer into the account of Citibank, N.A., as U.S. Exchange Agent
(the "U.S. Exchange Agent"), at The Depository Trust Company (the "Book-Entry
Transfer Facility") pursuant to the procedures described under "The
Offer -- Procedure for Tendering PolyGram Shares -- For Holders of PolyGram U.S.
Registered Shares -- Book-Entry Transfer" in the Offering Circular/Prospectus.
Shareholders who tender PolyGram U.S. Registered Shares by book-entry transfer
are referred to herein as "Book-Entry Shareholders."
Holders of PolyGram U.S. Registered Shares (i) whose PolyGram Certificates
are not immediately available, (ii) who cannot deliver their PolyGram
Certificates and all other documents required by this Letter of
Transmittal/Election Form to the U.S. Exchange Agent on or prior to the
Expiration Date (as defined in the Offering Circular/Prospectus) or (iii) who
cannot complete the procedure for delivery by book-entry transfer on a timely
basis, must tender their PolyGram U.S. Registered Shares according to the
guaranteed delivery procedure described under "The Offer -- Procedure for
Tendering PolyGram Shares -- For Holders of PolyGram U.S. Registered
Shares -- Guaranteed Delivery" in the Offering Circular/Prospectus. See
Instruction A.2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE U.S. EXCHANGE AGENT.
HOLDERS OF POLYGRAM U.S. REGISTERED SHARES WILL RECEIVE ALL CASH PAYMENTS
PURSUANT TO THE OFFER IN U.S. DOLLARS UNLESS THE HOLDER ELECTS TO RECEIVE ALL
SUCH PAYMENTS IN DUTCH GUILDERS. See Instruction A.8. Book-Entry Shareholders
who wish to receive cash payments pursuant to the Offer in Dutch Guilders
instead of U.S. Dollars must also (i) provide the U.S. Exchange Agent with (A)
wire instructions for an account in the Netherlands to which such payment may be
made or (B) an address to which a check for such payment may be mailed and (ii)
submit herewith a copy of the Agent's Message used to tender such Book-Entry
Shareholder's PolyGram U.S. Registered Shares. Holders of PolyGram U.S.
Registered Shares who elect to receive cash payments pursuant to the Offer in
Dutch Guilders and who do not tender such shares by book-entry transfer must
have their signature on this Letter of Transmittal/Election Form guaranteed by
an Eligible Institution (as defined in Instruction A.1) in accordance with the
procedures described under "The Offer -- Procedure For Tendering PolyGram
Shares -- For Holders of PolyGram U.S. Registered Shares -- Signature
Guarantees" in the Offering Circular/Prospectus. See Instruction A.1.
THIS LETTER OF TRANSMITTAL/ELECTION FORM IS TO BE COMPLETED ONLY BY HOLDERS
OF POLYGRAM U.S. REGISTERED SHARES. HOLDERS OF POLYGRAM CF-SHARES, POLYGRAM
K-SHARES OR POLYGRAM DUTCH REGISTERED SHARES (AS SUCH TERMS ARE DEFINED IN THE
OFFERING CIRCULAR/ PROSPECTUS) WISHING TO TENDER SUCH SHARES IN THE OFFER SHOULD
COMPLETE THE APPLICATION FORM/DEED OF TRANSFER ACCOMPANYING THE OFFERING
CIRCULAR/PROSPECTUS.
<PAGE> 2
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to The Seagram Company Ltd., a corporation
organized under the laws of Canada ("Seagram"), or its permitted assigns, the
PolyGram U.S. Registered Shares described below in Box A, and directs that each
such PolyGram U.S. Registered Share be exchanged for either (i) 1.3772 common
shares without nominal or par value ("Seagram Shares") of Seagram (the "Share
Consideration") or (ii) NLG 115, net to the seller in cash without interest
thereon (the "Cash Consideration" and, together with the Share Consideration,
the "Offer Consideration"), in accordance with the election (the "Election"), if
any, made by the undersigned below in Box B, and upon the terms and subject to
the conditions set forth in the Offering Circular/Prospectus, receipt of which
is hereby acknowledged, and in this Letter of Transmittal/ Election Form (which,
together with the related Application Form/Deed of Transfer, as any of the
foregoing may be amended or supplemented from time to time, constitute the
"Offer").
The undersigned understands that (i) any Election made on this Letter of
Transmittal/Election Form is subject to the terms and conditions set forth in
the Offering Circular/Prospectus, (ii) Share Consideration shall be paid in
respect of 34,783,758 PolyGram Shares and Cash Consideration shall be paid in
respect of all other tendered PolyGram Shares, as described under "The
Offer -- Limited Availability of Share Consideration" in the Offering
Circular/Prospectus, (iii) fractional Seagram Shares will not be issued in the
Offer, and that cash will be paid in lieu of any such fractional Seagram Shares
as described under "The Offer -- Offer Consideration" in the Offering
Circular/Prospectus (see Instruction B.1), (iv) the undersigned will receive
Cash Consideration for any PolyGram Shares with respect to which the undersigned
fails to make a valid Election as described under "The Offer -- Election
Procedures" in the Offering Circular/Prospectus (see Instructions B.1 through
B.4) and (v) the undersigned will receive all cash payments pursuant to the
Offer in U.S. Dollars unless the undersigned elects to receive all such payments
in Dutch Guilders (see Instruction A.8). The undersigned further understands
that Seagram, may, at any time, transfer or assign to one or more subsidiaries
of Seagram (organized or incorporated under the laws of Canada, the United
States, the Netherlands or any other jurisdiction, provided that such other
jurisdiction would not impose a withholding tax on the payment of the Offer
Consideration) the right to purchase all or any portion of the PolyGram Shares
tendered in the Offer.
Subject to, and effective upon, acceptance pursuant to the Offer of the
PolyGram Shares tendered herewith in accordance with the terms of the Offer, the
undersigned hereby sells, assigns and transfers to the order of Seagram, or its
permitted assigns, all right, title and interest in and to all of the PolyGram
Shares that are being tendered hereby and any and all dividends or distributions
(including additional PolyGram Shares) declared, paid or issued with respect to
the tendered PolyGram Shares on or after June 21, 1998 (except for a dividend
payable to all PolyGram shareholders in an amount per share equal to NLG 0.50 in
respect of the period from January 1, 1998 until June 30, 1998, inclusive) and
payable or distributable to the undersigned on a date prior to the transfer to
the name of Seagram or a nominee or transferee of Seagram on the stock transfer
records of PolyGram of the PolyGram Shares tendered herewith (collectively, a
"Distribution"), and appoints the U.S. Exchange Agent the true and lawful agent
and attorney-in-fact of the undersigned with respect to such PolyGram Shares
(and any Distribution) with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest in the tendered
PolyGram Shares) to (a) deliver the tendered PolyGram Certificates (and any
Distribution) or transfer ownership of such PolyGram Shares (and any
Distribution) on the account books maintained by the Book-Entry Transfer
Facility, together in either case with appropriate evidences of transfer, to the
U.S. Exchange Agent for the account of Seagram, (b) present such PolyGram Shares
(and any Distribution) for transfer on the books of PolyGram and (c) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
PolyGram Shares (and any Distribution), all in accordance with the terms and
subject to the conditions of the Offer. The undersigned authorizes and instructs
you, as U.S. Exchange Agent, to deliver the PolyGram Certificates listed below
and to
2
<PAGE> 3
receive on behalf of the undersigned, in exchange for the PolyGram Shares
represented thereby, any check for the cash or any certificate for the Seagram
Shares issuable pursuant to the Offer.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the PolyGram
Shares (and any Distribution) tendered hereby and (b) when such PolyGram Shares
are accepted by Seagram pursuant to the Offer, Seagram will acquire good,
marketable and unencumbered title to such PolyGram Shares (and any
Distribution), free and clear of all liens, restrictions, charges and
encumbrances, and the same will not be subject to any adverse claim. The
undersigned, upon request, will execute and deliver any additional documents
deemed by the U.S. Exchange Agent or Seagram to be necessary or desirable to
complete the sale, assignment and transfer of the PolyGram Shares tendered
hereby (and any Distribution). In addition, the undersigned shall promptly remit
and transfer to the U.S. Exchange Agent for the account of Seagram any and all
Distributions in respect of the PolyGram Shares tendered hereby, accompanied by
appropriate documentation of transfer; and pending such remittance and subject
to applicable law, Seagram will be entitled to all rights and privileges as
owner of any such Distribution and may withhold the entire Offer Consideration
or deduct from the Offer Consideration the amount or value thereof, as may be
appropriate and equitable under the circumstances.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any tender of PolyGram Shares will be determined by
Seagram, in its sole discretion, which determination shall be final and binding
on all parties. Seagram reserves the absolute right to reject any and all
tenders determined by it not to be in proper form or the acceptance of which
may, in the opinion of its counsel, be unlawful. All questions as to the
validity of any Election or change of Election will be determined by Seagram, in
its sole discretion, which determination shall be final and binding on all
parties. Except as otherwise described in the Offering Circular Prospectus or in
the Offer Agreement (as defined in the Offering Circular/Prospectus), Seagram
also reserves the absolute right to waive any defect or irregularity in any
tender of PolyGram Shares, any Election or any change of Election of any
particular PolyGram shareholder whether or not similar defects or irregularities
are waived in the case of other PolyGram shareholders. See "The
Offer -- Procedure for Tendering PolyGram Shares -- Determination of Validity"
and "The Offer -- Election Procedures" in the Offering Circular/Prospectus.
All authority herein conferred or agreed to be conferred shall not be
affected by and shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned.
Tenders of PolyGram Shares made pursuant to the Offer are irrevocable,
except that tenders of PolyGram Shares pursuant to the Offer may be withdrawn at
any time on or prior to the Expiration Date and, unless theretofore accepted by
Seagram pursuant to the Offer, may also be withdrawn at any time after January
2, 1999 (or such later date as may apply in case the Offer is extended), in each
case to the fullest extent permitted by applicable U.S. and Dutch law.
The undersigned understands that tenders of PolyGram Shares pursuant to any
of the procedures described under "The Offer -- Procedure for Tendering PolyGram
Shares -- For Holders of PolyGram U.S. Registered Shares" in the Offering
Circular/Prospectus and in the instructions hereto will constitute a binding
agreement between the undersigned and Seagram upon the terms and subject to the
conditions set forth in the Offer.
Unless otherwise indicated herein under "Box C: Special Payment
Instructions," please (i) issue any check for any Cash Consideration or cash in
lieu of fractional Seagram Shares, (ii) issue any Share Consideration exchanged
for PolyGram U.S. Registered Shares tendered pursuant hereto and/or (iii) issue
or return any PolyGram Certificate(s) not tendered or not accepted pursuant to
the Offer in the name(s) of the registered holder(s) appearing under "Box A:
Description of PolyGram U.S. Registered Shares Tendered." Similarly, unless
otherwise indicated herein under "Box D: Special Delivery Instructions," please
mail (i) any check for any Cash Consideration or cash in lieu of fractional
Seagram Shares, (ii) any Share Consideration exchanged for PolyGram U.S.
Registered Shares tendered pursuant hereto and/or (iii) any PolyGram
Certificate(s) not
3
<PAGE> 4
tendered or not accepted pursuant to the Offer (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing under "Box
A: Description of PolyGram U.S. Registered Shares Tendered." In the event that
both the Special Delivery Instructions and the Special Payment Instructions are
completed, please (i) issue any check for any Cash Consideration or cash in lieu
of fractional Seagram Shares, (ii) issue any Share Consideration exchanged for
PolyGram U.S. Registered Shares tendered pursuant hereto and/or (iii) issue or
return any PolyGram Certificate(s) not tendered or accepted pursuant to the
Offer in the name of, and deliver such check, Share Consideration and/or
PolyGram Certificate(s) to, the person or persons so indicated. Unless otherwise
indicated herein under "Box C: Special Payment Instructions," please credit any
PolyGram U.S. Registered Shares tendered herewith by book-entry transfer that
are not accepted pursuant to the Offer by crediting the account at the
Book-Entry Transfer Facility designated in Box A. The undersigned recognizes
that Seagram has no obligation, pursuant to the Special Payment Instructions, to
transfer any PolyGram U.S. Registered Shares from the name(s) of the registered
holder(s) thereof if Seagram does not accept pursuant to the Offer any of the
PolyGram U.S. Registered Shares so tendered.
COMPLETE AND SURRENDER THIS LETTER OF TRANSMITTAL/ELECTION FORM TOGETHER WITH
THE POLYGRAM CERTIFICATES REPRESENTING THE POLYGRAM U.S. REGISTERED SHARES TO BE
TENDERED IN THE OFFER. SEE ATTACHED INSTRUCTIONS.
4
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
BOX A: CERTIFICATES SURRENDERED
DESCRIPTION OF POLYGRAM U.S. REGISTERED SHARES TENDERED
Please describe in Box A all the PolyGram U.S. Registered Shares that you are tendering regardless of which Election
you make. If there is not enough space below to list all of your PolyGram U.S. Registered Shares, please attach a
separate sheet. Use Box B to specify how many shares, if any, are covered by each Election. A separate Letter of
Transmittal/Election Form must be submitted for shares registered in different names (see Instruction A.5).
- ------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) POLYGRAM U.S. REGISTERED SHARES ENCLOSED
(PLEASE FILL IN EXACTLY AS NAME(S) APPEAR(S) ON (ATTACH ADDITIONAL SIGNED SCHEDULE IF NECESSARY)
CERTIFICATE(S))
- ------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES NUMBER OF
CERTIFICATE REPRESENTED BY SHARES
NO.(S)* CERTIFICATE(S)* TENDERED**
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
TOTAL NUMBER
OF SHARES
- ------------------------------------------------------------------------------------------------------------------------
* Need not be completed by Book-Entry Shareholders.
** Unless otherwise indicated, all PolyGram U.S. Registered Shares represented by PolyGram Certificates delivered to
the U.S. Exchange Agent will be deemed to have been tendered. See Instruction A.4.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
[ ] CHECK HERE IF POLYGRAM U.S. REGISTERED SHARES ARE BEING TENDERED BY
BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE U.S. EXCHANGE
AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING
(ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER POLYGRAM
U.S. REGISTERED SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution
----------------------------------------------------------------------------
Account Number at DTC
----------------------------------------------------------------------------
Transaction Code Number
----------------------------------------------------------------------------
[ ] CHECK HERE IF POLYGRAM U.S. REGISTERED SHARES ARE BEING TENDERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE U.S. EXCHANGE
AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):
----------------------------------------------------------------------------
Window Ticket Number (if any):
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Date of Execution of Notice of Guaranteed Delivery:
--------------------------------------------------------------------
Name of Institution that Guaranteed Delivery:
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If delivered by Book-Entry Transfer, please provide the following
information:
Account Number at DTC
----------------------------------------------------------------------------
Transaction Code Number
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5
<PAGE> 6
BOX B: ELECTION OF CONSIDERATION
Each holder of tendered PolyGram U.S. Registered Shares has the right to
specify, subject to the provisions relating to fractional Seagram Shares
described under "The Offer -- Offer Consideration" in the Offering Circular/
Prospectus and the limitations described under "The Offer -- Limited
Availability of Share Consideration" in the Offering Circular/Prospectus, (i)
the number of tendered PolyGram U.S. Registered Shares owned by such holder that
such holder desires to have exchanged for Share Consideration in the Offer (a
"Share Election") and (ii) the number of tendered PolyGram U.S. Registered
Shares owned by such owner that such holder desires to have exchanged for Cash
Consideration in the Offer (a "Cash Election").
Each tendered PolyGram U.S. Registered Share for which a valid Share Election
has been received will be exchanged for Share Consideration in the Offer,
subject to the limitations referred to above. Each tendered PolyGram U.S.
Registered Share for which a valid Cash Election has been received and each
tendered PolyGram U.S. Registered Share as to which a valid Election is not in
effect on the Expiration Date (a "Non-Electing Share") will be exchanged for
Cash Consideration in the Offer. ACCORDINGLY, IF YOU FAIL TO MAKE AN ELECTION
BELOW FOR ANY OF THE POLYGRAM U.S. REGISTERED SHARES TENDERED HEREBY, YOU WILL
RECEIVE CASH CONSIDERATION IN EXCHANGE FOR ALL SUCH POLYGRAM U.S. REGISTERED
SHARES THAT ARE ACCEPTED PURSUANT TO THE OFFER. If Seagram determines that any
Election is not properly made with respect to any tendered PolyGram U.S.
Registered Shares, such Election shall be deemed to be not in effect, and the
tendered PolyGram U.S. Registered Shares covered by such Election shall, for
purposes of the Offer, be deemed to be Non-Electing Shares.
SEE THE SECTION OF THE OFFERING CIRCULAR/PROSPECTUS ENTITLED "THE
OFFER -- ELECTION PROCEDURES" AND INSTRUCTIONS B.1 THROUGH B.4 BELOW FOR A
COMPLETE DESCRIPTION OF THE PROCEDURES FOR MAKING AN ELECTION.
CHECK ONLY ONE OF THE BOXES BELOW. You may make a Cash Election or a Share
Election as to each PolyGram U.S. Registered Share that you hold. If you wish to
make a Cash Election as to certain shares and a Share Election as to other
shares, check the "Cash and Share Elections" box below and indicate in the space
provided below the number of tendered PolyGram U.S. Registered Shares for which
a Cash Election or a Share Election is being made.
[ ] A CASH ELECTION (NLG 115 per PolyGram U.S. Registered Share, net to
the seller in cash without interest thereon) is made as to all
PolyGram U.S. Registered Shares tendered pursuant to this Letter of
Transmittal/Election Form (all cash).
[ ] A SHARE ELECTION (1.3772 Seagram Shares per PolyGram U.S. Registered
Share) is made as to all PolyGram U.S. Registered Shares tendered
pursuant to this Letter of Transmittal/Election Form (all Seagram
Shares, subject to proration).
[ ] CASH AND SHARE ELECTIONS are made as to the PolyGram U.S. Registered
Shares tendered pursuant to this Letter of Transmittal/Election Form,
in the following proportions (the total number of shares listed below
must equal the total number of shares being tendered hereby):
<TABLE>
<S> <C>
Number of Shares as to which Number of Shares as to which
a Cash Election is Made a Share Election is Made (subject to proration)
--------------------------------------- ---------------------------------------
</TABLE>
Unless you indicate otherwise in Box E, cash payments pursuant to the Offer
will be made in U.S. Dollars. Except as otherwise requested in Box C or Box D
below, the Cash Consideration and/or Share Consideration to which you are
entitled will be made payable to the order of and registered in the name of,
respectively, and be delivered to the registered holder(s) set forth in Box A
above at the address set forth in Box A above.
THE TAX CONSEQUENCES TO A HOLDER OF POLYGRAM U.S. REGISTERED SHARES WILL
VARY DEPENDING UPON, AMONG OTHER THINGS, WHICH ELECTION IS MADE. FOR INFORMATION
AS TO THE TAX CONSEQUENCES OF AN ELECTION, SEE THE SECTION OF THE OFFERING
CIRCULAR/PROSPECTUS ENTITLED "CERTAIN MATERIAL TAX CONSEQUENCES." YOU ARE URGED
TO CONSULT WITH YOUR TAX ADVISOR.
6
<PAGE> 7
BOX C: SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS A.1, A.5, A.6 AND A.7)
To be completed ONLY if (i) any check for any Cash Consideration or cash in lieu
of fractional Seagram Shares, (ii) any Share Consideration exchanged for
PolyGram U.S. Registered Shares tendered pursuant to the Offer and/or (iii) any
certificates for PolyGram U.S. Registered Shares not tendered or not accepted
pursuant to the Offer are to be issued in the name of someone other than the
undersigned or if PolyGram U.S. Registered Shares tendered by book-entry
transfer which are not accepted for payment are to be returned by credit to an
account maintained at the Book-Entry Transfer Facility.
Issue check and/or certificates to:
Name:
- -----------------------------------------------
(PLEASE PRINT)
Address:
- ---------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
(INCLUDE ZIP CODE)
- -------------------------------------------------------
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9)
[ ] Credit PolyGram U.S. Registered Shares tendered by book-entry transfer that
are not accepted pursuant to the Offer to:
- -------------------------------------------------------
(DTC ACCOUNT NO.)
BOX D: SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS A.1, A.5, A.6 AND A.7)
To be completed ONLY if (i) any check for any Cash Consideration or cash in lieu
of fractional Seagram Shares, (ii) any Share Consideration exchanged for
PolyGram U.S. Registered Shares tendered pursuant to the Offer and/or (iii) any
certificates for PolyGram U.S. Registered Shares not tendered or not accepted
pursuant to the Offer are to be sent to someone other than the undersigned or to
the undersigned at an address other than that shown above.
Deliver check and/or certificates to:
Name:
- -----------------------------------------------
(PLEASE PRINT)
Address:
- ---------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
(INCLUDE ZIP CODE)
- -------------------------------------------------------
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9)
BOX E: SPECIAL CURRENCY INSTRUCTIONS
(SEE INSTRUCTION A.8)
[ ] PAYMENT IN DUTCH GUILDERS. Check this box if you wish to receive cash
payments pursuant to the Offer in Dutch Guilders instead of U.S. Dollars.
MAKE NO MARK IN THIS BOX IF YOU WISH TO RECEIVE PAYMENTS IN RESPECT OF CASH
CONSIDERATION AND CASH IN LIEU OF FRACTIONAL SEAGRAM SHARES IN U.S. DOLLARS.
Book-Entry Shareholders who wish to receive cash payments pursuant to the
Offer in Dutch Guilders instead of U.S. Dollars must also (i) provide the
U.S. Exchange Agent with (A) wire instructions for an account in the
Netherlands to which such payment may be made or (B) an address to which a
check for such payment may be mailed and (ii) submit herewith a copy of the
Agent's Message used to tender such Book-Entry Shareholder's PolyGram U.S.
Registered Shares. In the event that any such wire instructions are invalid
or incomplete, such payment will be made in Dutch Guilders by check. Holders
of PolyGram U.S. Registered Shares who elect to receive cash payments
pursuant to the Offer in Dutch Guilders and who do not tender such shares by
book-entry transfer must have their signature on this Letter of
Transmittal/Election Form guaranteed by an Eligible Institution. See
Instruction A.1.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
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(BOOK-ENTRY SHAREHOLDERS WHO WISH TO HAVE
PAYMENT OF ANY CASH CONSIDERATION AND CASH IN LIEU OF
FRACTIONAL SEAGRAM SHARES MADE IN DUTCH GUILDERS INSTEAD
OF U.S. DOLLARS SHOULD PROVIDE WIRE
INSTRUCTIONS OR AN ADDRESS HERE)
7
<PAGE> 8
ALL HOLDERS OF POLYGRAM U.S. REGISTERED SHARES
PLEASE SIGN HERE
(ALSO COMPLETE AND SIGN SUBSTITUTE FORM W-9 ON THE REVERSE SIDE HEREOF)
- --------------------------------------------------------------------------------
SEE INSTRUCTION A.5 ON THE REVERSE SIDE HEREOF
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE(S) OF REGISTERED HOLDER(S) OR OF ASSIGN(S) OF SUCH REGISTERED
HOLDER(S) (SEE GUARANTEE REQUIREMENT BELOW)
Area Code and Telephone Number: ( ) ________ - _____________
Tax Identification or Social Security Number:
- ---------------------------
Date:
- ------------------------------
Must be signed by registered holder(s) exactly as name(s) appear(s) on the
PolyGram Certificate(s) surrendered herewith or on a security position listing
or by person(s) authorized to become registered holder(s) of certificate(s)
representing the PolyGram U.S. Registered Shares and documents transmitted
herewith. If the signature is by an officer on behalf of a corporation or by an
executor, administrator, trustee, guardian, attorney-in-fact, agent or other
person acting in a fiduciary or representative capacity, please provide the
following information, and see Instruction A.2 on the reverse side hereof:
Name(s)
- --------------------------------------------------------------------------------
(Print Name(s))
Capacity (full title)
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEE
TO BE COMPLETED ONLY IF REQUIRED BY INSTRUCTION A.1, A.5 OR A.13 ON THE REVERSE
SIDE HEREOF
- --------------------------------------------------------------------------------
(Name of Firm Issuing Guarantee)
- --------------------------------------------------------------------------------
(Authorized Signature of Officer)
- --------------------------------------------------------------------------------
(Title of Officer Signing This Guarantee)
8
<PAGE> 9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
A. GENERAL INSTRUCTIONS.
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal/Election Form (i) if this Letter of Transmittal/Election
Form is signed by the registered holder(s) (which term, for purposes of this
document, shall include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of PolyGram U.S.
Registered Shares) of PolyGram U.S. Registered Shares tendered herewith, unless
(A) such holder(s) has completed either "Box C: Special Payment Instructions" or
"Box D: Special Delivery Instructions" above or (B) such holder requests receipt
of cash payments pursuant to the Offer in Dutch Guilders instead of U.S. Dollars
and such holder does not tender such holder's shares by book-entry transfer, or
(ii) if such PolyGram U.S. Registered Shares are tendered for the account of a
firm which is a member in good standing of the Securities Transfer Agents
Medallion Program, the Stock Exchange Medallion Program or the New York Stock
Exchange, Inc. Medallion Signature Program (each of the foregoing being referred
to as an "Eligible Institution"). In all other cases, all signatures on this
Letter of Transmittal/Election Form must be guaranteed by an Eligible
Institution. See Instruction A.5 of this Letter of Transmittal/Election Form.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal/Election Form is to
be completed by shareholders either (i) if PolyGram Certificates are to be
forwarded herewith or (ii) unless an Agent's Message is utilized, if tenders of
PolyGram U.S. Registered Shares are to be made pursuant to the procedure for
tender by book-entry transfer set forth under "The Offer -- Procedure for
Tendering PolyGram Shares -- For Holders of PolyGram U.S. Registered Shares --
Book-Entry Transfer" in the Offering Circular/Prospectus. PolyGram Certificates
evidencing tendered PolyGram U.S. Registered Shares, or timely confirmation (a
"Book-Entry Confirmation") of a book-entry transfer of PolyGram U.S. Registered
Shares into the U.S. Exchange Agent's account at the Book-Entry Transfer
Facility, as well as this Letter of Transmittal/Election Form, properly
completed and duly executed, together with any required signature guarantees, or
an Agent's Message in connection with a book-entry delivery of PolyGram U.S.
Registered Shares, and any other documents required by this Letter of
Transmittal/Election Form, must be received by the U.S. Exchange Agent at one of
its addresses set forth herein on or prior to the Expiration Date. Shareholders
whose PolyGram Certificates are not immediately available, who cannot deliver
their PolyGram Certificates and all other required documents to the U.S.
Exchange Agent on or prior to the Expiration Date or who cannot complete the
procedure for delivery by book-entry transfer on a timely basis must tender
their PolyGram U.S. Registered Shares by properly completing and duly executing
a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedure
described under "The Offer -- Procedure for Tendering PolyGram Shares -- For
Holders of PolyGram U.S. Registered Shares -- Guaranteed Delivery" in the
Offering Circular/Prospectus. 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 made
available by Seagram, must be received by the U.S. Exchange Agent on or prior to
the Expiration Date; and (iii) the PolyGram Certificates (or a Book-Entry
Confirmation) representing all tendered PolyGram U.S. Registered Shares, in
proper form for transfer, in each case together with this Letter of
Transmittal/Election Form, properly completed and duly executed, with any
required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message) and any other documents required by this Letter of
Transmittal/Election Form, must be received by the U.S. Exchange Agent within
three New York Stock Exchange trading days after the date of execution of such
Notice of Guaranteed Delivery, all as set forth under "The Offer -- Procedure
for Tendering PolyGram Shares -- For Holders of PolyGram U.S. Registered
Shares -- Guaranteed Delivery" in the Offering Circular/Prospectus.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL/ELECTION FORM,
POLYGRAM CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY
THROUGH THE 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 U.S. EXCHANGE AGENT (INCLUDING, IN THE CASE OF BOOK-ENTRY
TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional PolyGram U.S. Registered Shares will be exchanged. All tendering
shareholders, by execution of this Letter of Transmittal/Election Form, waive
any right to receive any notice of the acceptance of their PolyGram U.S.
Registered Shares pursuant to the Offer.
9
<PAGE> 10
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of PolyGram U.S. Registered Shares and any
other required information should be listed on a separate signed schedule
attached hereto.
4. PARTIAL TENDERS. (Not applicable to Book-Entry Shareholders) If fewer
than all the PolyGram U.S. Registered Shares evidenced by any PolyGram
Certificate submitted are to be tendered, fill in the number of PolyGram U.S.
Registered Shares which are to be tendered in the box entitled "Number of Shares
Tendered." In such case, new PolyGram Certificates for the PolyGram U.S.
Registered Shares that were evidenced by your old PolyGram Certificates, but
were not tendered by you, will be sent to you, unless otherwise provided in the
appropriate box marked as "Box C: Special Payment Instructions" and/or "Box D:
Special Delivery Instructions" on this Letter of Transmittal/Election Form, as
soon as practicable after the Expiration Date. All PolyGram U.S. Registered
Shares represented by PolyGram Certificates delivered to the U.S. Exchange Agent
will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL/ELECTION FORM, STOCK POWERS AND
ENDORSEMENTS. If this Letter of Transmittal/Election Form is signed by the
registered holder(s) of the PolyGram U.S. Registered Shares tendered hereby, the
signature(s) must correspond with the name(s) as written on the face of the
certificate(s) without alteration, enlargement or any change whatsoever.
If any of the PolyGram U.S. Registered Shares tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal/Election Form.
If any of the tendered PolyGram U.S. Registered Shares are registered in
different names on several certificates, it will be necessary to complete, sign
and submit as many separate Letters of Transmittal/Election Forms as there are
different registrations of certificates.
If this Letter of Transmittal/Election Form or any certificates or stock
powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
proper evidence satisfactory to Seagram of their authority so to act must be
submitted.
If this Letter of Transmittal/Election Form is signed by the registered
holder(s) of the PolyGram U.S. Registered Shares listed and transmitted hereby,
no endorsements of certificates or separate stock powers are required unless
payment is to be made to or certificates for PolyGram U.S. Registered Shares not
tendered or not accepted pursuant to the Offer are to be issued or returned 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/Election Form is signed by a person other
than the registered holder(s) of the certificate(s) listed, the certificate(s)
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
certificate(s). Signatures on such certificates or stock powers must be
guaranteed by an Eligible Institution.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction
A.6, Seagram will pay any stock transfer taxes with respect to the transfer and
sale of PolyGram U.S. Registered Shares to it or its permitted assigns or its or
their order pursuant to the Offer. If, however, payment of any Share
Consideration, Cash Consideration or cash in lieu of fractional shares is to be
made to, or if certificate(s) for PolyGram U.S. Registered Shares not tendered
or accepted pursuant to the Offer are to be registered in the name of, any
person other than the registered holder(s) of the tendered PolyGram U.S.
Registered Shares, or if tendered certificate(s) are registered in the name of
any person other than the person(s) signing this Letter of Transmittal/Election
Form, the amount of any stock transfer taxes (whether imposed on the registered
holder(s) or such other person) payable on account of the transfer to such
person will be deducted from the purchase price unless satisfactory evidence of
the payment of such taxes or an exemption therefrom is submitted.
Except as otherwise provided in this Instruction A.6, it will not be
necessary for transfer tax stamps to be affixed to the certificate(s) listed in
this Letter of Transmittal/Election Form.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If (i) a check is to be
issued in the name of, (ii) Share Consideration exchanged for PolyGram U.S.
Registered Shares tendered pursuant hereto are to be issued to, and/or (iii)
certificates for PolyGram U.S. Registered Shares not tendered or not accepted
pursuant to the Offer are to be issued or returned to, a person other than the
signer of this Letter of Transmittal/Election Form or if a check and/or such
10
<PAGE> 11
certificates are to be returned to a person other than the person(s) signing
this Letter of Transmittal/Election Form or to an address other than that shown
in this Letter of Transmittal/Election Form, the appropriate boxes on this
Letter of Transmittal must be completed. A Book-Entry Shareholder may request
that PolyGram U.S. Registered Shares not accepted pursuant to the Offer be
credited to such account maintained at the Book-Entry Transfer Facility as such
Book-Entry Shareholder may designate under "Special Payment Instructions." If no
such instructions are given, such PolyGram U.S. Registered Shares not accepted
pursuant to the Offer will be returned by crediting the account at the
Book-Entry Transfer Facility designated above.
8. SPECIAL CURRENCY INSTRUCTIONS. Although the Cash Consideration is
stated in Dutch Guilders, the U.S. Exchange Agent will make payments in respect
of Cash Consideration and cash in lieu of fractional Seagram Shares for PolyGram
U.S. Registered Shares tendered and accepted pursuant to the Offer in U.S.
Dollars based on the U.S. Dollar/ Dutch Guilder exchange rate prevailing on the
date on which funds are made available to the U.S. Exchange Agent, unless
holders of PolyGram U.S. Registered Shares check the box marked "Payment in
Dutch Guilders" in "Box E: Special Currency Instructions." If you check the box
marked "Payment in Guilders," payment of any Cash Consideration and cash in lieu
of fractional Seagram Shares will be made in Dutch Guilders. If no mark is made
in Box E, any such payment will be made in U.S. Dollars. DO NOT MARK BOX E IF
YOU WISH TO RECEIVE PAYMENTS IN U.S. DOLLARS. If you are a Book-Entry
Shareholder and you wish to receive cash payments pursuant to the Offer in Dutch
Guilders instead of U.S. Dollars, you must also (i) in "Box E: Special Currency
Instructions," provide the U.S. Exchange Agent with (A) wire instructions for an
account in the Netherlands to which such payment may be made or (B) an address
to which a check for such payment may be mailed and (ii) submit herewith a copy
of the Agent's Message used to tender your PolyGram U.S. Registered Shares. In
the event that any such wire instructions are invalid or incomplete, such
payment will be made in Dutch Guilders by check. Holders of PolyGram U.S.
Registered Shares who elect to receive cash payments pursuant to the Offer in
Dutch Guilders and who do not tender such shares by book-entry transfer must
have their signature on this Letter of Transmittal/Election Form guaranteed by
an Eligible Institution. See Instruction A.1.
For holders who tender PolyGram U.S. Registered Shares pursuant to the
Offer and do not elect to receive cash payments in Dutch Guilders, all Cash
Consideration and cash in lieu of fractional Seagram Shares payable to such
holders will be converted, without charge, from Dutch Guilders to U.S. Dollars
at the exchange rate obtainable by the U.S. Exchange Agent on the spot market on
the date the Cash Consideration and cash in lieu of fractional Seagram Shares is
made available by Seagram to the U.S. Exchange Agent for delivery in respect of
the applicable PolyGram U.S. Registered Shares.
The actual amount of U.S. Dollars received will depend upon the U.S.
Dollar/Dutch Guilder exchange rate prevailing on the date on which funds are
made available to the U.S. Exchange Agent by Seagram. Holders of PolyGram U.S.
Registered Shares should be aware that the exchange rate which is prevailing on
the date on which the undersigned executes this Letter of Transmittal/Election
Form and on the date of dispatch of payment may be different from that
prevailing on the date on which funds are made available to the U.S. Exchange
Agent by Seagram. See "Exchange Rates" in the Offering Circular/Prospectus for
historical information regarding the U.S. Dollar/Dutch Guilder exchange rates.
In all cases, fluctuations in the U.S. Dollar/Dutch Guilder exchange rate are at
the risk of tendering holders of PolyGram U.S. Registered Shares who do not
elect to receive their cash payments in Dutch Guilders. Such currency exchange
will be effected by the U.S. Exchange Agent on behalf of the requesting holder
of PolyGram U.S. Registered Shares and Seagram shall have no responsibility or
obligation with respect to such curency exchange.
9. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by
Seagram from time to time in accordance with, and subject to the limitations
described in, the Offering Circular/Prospectus. See "The Offer -- Certain
Conditions of the Offer" in the Offering Circular/Prospectus.
10. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a shareholder whose tendered PolyGram U.S. Registered Shares are
accepted pursuant to the Offer is required to provide the U.S. Exchange Agent
with such shareholder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 below. Failure to complete the Substitute Form W-9 will not
by itself cause PolyGram U.S. Registered Shares to be deemed invalidly tendered.
If, however, the U.S. Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the shareholder or other payee to a $50
penalty. In addition, payments that are made to such shareholder or other
11
<PAGE> 12
payee with respect to PolyGram U.S. Registered Shares purchased pursuant to the
Offer may be subject to 31% backup withholding.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the shareholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the U.S. Exchange Agent. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for more
instructions.
If backup withholding applies, the U.S. Exchange Agent is required to
withhold 31% of any such payments made to the shareholder or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service, provided that the appropriate information is
furnished to the Internal Revenue Service.
If the tendering shareholder has not been issued a TIN and has applied for
a TIN or intends to apply for a TIN in the near future and so indicates on the
Substitute Form W-9, the U.S. Exchange Agent will retain 31% of all payments
made prior to the time a properly certified TIN is provided to the U.S. Exchange
Agent. If the shareholder properly certifies its TIN to the U.S. Exchange Agent
within 60 days of the date of the Substitute Form W-9, the U.S. Exchange Agent
will remit such amount retained to the shareholder and no further amounts will
be retained or withheld from any payment made to the shareholder thereafter. If,
however, the shareholder has not properly certified its TIN to the U.S. Exchange
Agent within such 60-day period, the U.S. Exchange Agent will remit such
previously retained amount to the Internal Revenue Service as backup
withholding.
The shareholder is required to give the U.S. Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the record owner of
the PolyGram U.S. Registered Shares or of the last transferee appearing on the
transfers attached to, or endorsed on, the PolyGram U.S. Registered Shares
unless payment is to be made to a beneficial owner other than the registered
holder pursuant to Special Payment Instructions or Special Delivery
Instructions. In such a case, backup withholding will apply unless such
beneficial owner, rather than the registered holder, completes the Substitute
Form W-9. If the PolyGram U.S. Registered Shares are 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.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests
for assistance may be directed to the Dealer Managers or the Information Agent
at their respective addresses and telephone numbers set forth below. Additional
copies of the Offering Circular/Prospectus, this Letter of Transmittal/Election
Form and the Notice of Guaranteed Delivery may also be obtained from the
Information Agent or the Dealer Managers or from brokers, dealers, commercial
banks or trust companies.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any PolyGram Certificate
has been lost, destroyed or stolen, the shareholder should promptly notify the
U.S. Exchange Agent. The shareholder will then be instructed as to the steps
that must be taken in order to replace the PolyGram Certificate(s). This Letter
of Transmittal/Election Form and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen certificates have been
followed.
13. CORRECTION OF OR CHANGE IN NAME. For a correction of name or for a
change in name which in either case does not involve a change of ownership,
proceed as follows: (i) for a change of name, by marriage, etc., the surrendered
PolyGram Certificate(s) should be endorsed, e.g., "Mary Doe, now by marriage
Mrs. Mary Jones," with the signature guaranteed by an Eligible Institution; and
(ii) for a correction in name, the surrendered PolyGram Certificate(s) should be
endorsed, e.g., "James E. Brown, incorrectly inscribed as J.E. Brown," with the
signature guaranteed by an Eligible Institution. See Instruction A.1.
B. INSTRUCTIONS FOR MAKING ELECTIONS.
NEITHER SEAGRAM NOR POLYGRAM MAKES ANY RECOMMENDATION AS TO WHETHER
POLYGRAM SHAREHOLDERS SHOULD ELECT TO RECEIVE CASH CONSIDERATION OR SHARE
CONSIDERATION PURSUANT TO THE OFFER.
12
<PAGE> 13
1. THE ELECTION; LIMITED AVAILABILITY OF SHARE CONSIDERATION. You may use
Box B of this Letter of Transmittal/ Election Form to make an Election as to the
form of consideration to be received by you in exchange for your PolyGram U.S.
Registered Shares. At your direction, subject to the terms and conditions set
forth in this Letter of Transmittal/ Election Form and in the Offering
Circular/Prospectus, each PolyGram U.S. Registered Share will be converted into
either: (i) 1.3772 Seagram Shares, pursuant to a Share Election or (ii) NLG 115,
net to the seller in cash without interest thereon, pursuant to a Cash Election;
provided that Share Consideration shall be paid in respect of 34,783,758
PolyGram Shares and Cash Consideration shall be paid in respect of all other
tendered PolyGram Shares.
For so long as the Offer Agreement is in effect, Koninklijke Philips
Electronics N.V., a corporation incorporated under the laws of the Netherlands
("Philips") and the beneficial owner of 135,000,000, or 75%, of the 180,000,000
issued PolyGram Shares as of the date of the Offering Circular/Prospectus, has
agreed to validly tender pursuant to and in accordance with the terms of the
Offer and not withdraw such tender of all of its PolyGram Shares and to elect to
receive Share Consideration in respect of all of its PolyGram Shares. If no
other PolyGram shareholder makes a Share Election, Philips will receive Seagram
Shares in the Offer in respect of 34,783,758 of its PolyGram Shares and Cash
Consideration in respect of its remaining PolyGram Shares. If PolyGram
shareholders (other than Philips) make Share Elections, all such shareholders
(including Philips) will have an equal opportunity to receive Share
Consideration in the Offer (based on the number of tendered PolyGram Shares in
respect of which each such holder (including Philips) has made a Share
Election), subject to the limitation that Share Consideration will be paid in
respect of an aggregate of 34,783,758 tendered PolyGram Shares. To the extent
Share Elections are made in respect of more than 34,783,758 shares, each
tendering PolyGram shareholder making a Share Election will receive Share
Consideration in respect of a portion of such shares and Cash Consideration in
respect of the remainder of such shares. See "The Offer -- Limited Availability
of Share Consideration" in the Offering Circular/Prospectus for examples
illustrating the potential outcomes available to tendering PolyGram shareholders
making a Share Election.
Seagram will not issue any fractional Seagram Shares in the Offer. In lieu
of any such fractional Seagram Share, each tendering PolyGram shareholder who
would otherwise be entitled to receive a fractional Seagram Share will receive
an amount in cash (without interest) determined by multiplying the fractional
interest in a Seagram Share to which such shareholder would otherwise be
entitled by NLG 83.50.
The election procedures and the limited availability of Share Consideration
are described in the Offering Circular/ Prospectus under "The Offer -- Election
Procedures" and "The Offer -- Limited Availability of Share Consideration" and
all Elections are subject to compliance with such procedures.
AS A RESULT OF THE LIMITED AVAILABILITY OF SEAGRAM SHARES IN THE OFFER,
HOLDERS OF POLYGRAM U.S. REGISTERED SHARES WHO ELECT TO RECEIVE SHARE
CONSIDERATION MAY EXPERIENCE A RANGE OF ACTUAL OUTCOMES BASED UPON THE ELECTIONS
OF OTHER POLYGRAM SHAREHOLDERS. SUCH HOLDERS WILL NOT BE ABLE TO CHANGE THE
NUMBER OF SEAGRAM SHARES OR THE AMOUNT OF CASH ALLOCATED TO THEM PURSUANT TO THE
PRORATION PROCEDURES.
POLYGRAM SHAREHOLDERS ARE URGED TO OBTAIN CURRENT QUOTATIONS FOR THE
SEAGRAM SHARES AND THE POLYGRAM SHARES.
If you have previously submitted a Notice of Guaranteed Delivery for the
PolyGram U.S. Registered Shares which are the subject of this Letter of
Transmittal/Election Form and the Offer has expired, then the election made in
such Notice of Guaranteed Delivery may not be changed by this Letter of
Transmittal/Election Form.
The section of the Offering Circular/Prospectus entitled "Certain Material
Tax Consequences" contains a description of certain consequences related to
receiving Cash Consideration and Share Consideration pursuant to the Offer. IN
CONNECTION WITH MAKING ANY ELECTION, A HOLDER OF POLYGRAM U.S. REGISTERED SHARES
SHOULD CAREFULLY READ THE OFFERING CIRCULAR/PROSPECTUS IN ITS ENTIRETY,
INCLUDING THE DESCRIPTION OF "CERTAIN MATERIAL TAX CONSEQUENCES" CONTAINED
THEREIN, AND DISCUSS THE CONTENTS OF THE OFFERING CIRCULAR/PROSPECTUS AND THIS
LETTER OF TRANSMITTAL/ELECTION FORM WITH SUCH HOLDER'S TAX ADVISOR.
2. FAILURE TO MAKE AN EFFECTIVE ELECTION. If you fail to make an effective
Election or if your Election is determined by Seagram to be not properly made
with respect to any tendered PolyGram U.S. Registered Shares, such election
shall be deemed to be not in effect, and the tendered PolyGram U.S. Registered
Shares covered by such Election shall be
13
<PAGE> 14
deemed to be Non-Electing Shares. Cash Consideration will be paid for all
Non-Electing Shares. All questions as to the validity of any Election or change
of Election will be determined by Seagram, in its sole discretion, which
determination shall be final and binding on all parties. Except as otherwise
described in the Offering Circular/Prospectus, Seagram reserves the absolute
right to waive any defect or irregularity in any Election or change of Election
by any PolyGram shareholder whether or not similar defects or irregularities are
waived in the case of other PolyGram shareholders. No election will be deemed to
have been validly made until all defects or irregularities have been cured or
waived. None of Seagram, the Dealer Managers, the U.S. Exchange Agent, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in Elections or changes of
Election or incur any liability for failure to give such notification.
3. POLYGRAM U.S. REGISTERED SHARES AS TO WHICH AN ELECTION IS MADE. You
may make a Cash Election or a Share Election with respect to all or any portion
of your PolyGram U.S. Registered Shares by checking the appropriate box and, in
the case of multiple elections, listing the number of shares for which you wish
to make a specific Election, on the Election of Consideration form (Box B)
contained herein.
4. CHANGE OF ELECTION. Any holder of tendered PolyGram U.S. Registered
Shares may change its Election only by written notice, signed and dated by such
shareholder, received by the U.S. Exchange Agent at one of the addresses set
forth herein at any time on or prior to the Expiration Date. Such notice must
specify (i) the name of the person who tendered the PolyGram U.S. Registered
Shares which are subject to such notice, (ii) the certificate number shown on
the certificate(s) representing such tendered PolyGram U.S. Registered Shares
and (iii) the name of the registered holder, if different from that of the
person who tendered such PolyGram U.S. Registered Shares.
IMPORTANT: THIS LETTER OF TRANSMITTAL/ELECTION FORM, TOGETHER WITH
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER, OR THE NOTICE OF GUARANTEED
DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE U.S.
EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
14
<PAGE> 15
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS (SEE INSTRUCTION A.10)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
SUBSTITUTE Name:
FORM W-9 Address:
DEPARTMENT OF THE TREASURY Check appropriate box:
INTERNAL REVENUE SERVICE
REQUEST FOR TAXPAYER IDENTIFICATION Individual [ ] Corporation [ ]
NUMBER (TIN) AND CERTIFICATION Partnership [ ] Other (specify) [ ]
- ---------------------------------------------------------------------------------------------------------------------------------
PART I. Please provide your taxpayer identification number in the SSN: __ __ __ - __ __ - __ __ __ __
space at right. If awaiting TIN, write "Applied For." or
EIN: __ __ - __ __ __ __ __ __ __
- ---------------------------------------------------------------------------------------------------------------------------------
PART II. For Payees exempt from backup withholding. See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9."
- ---------------------------------------------------------------------------------------------------------------------------------
PART III. 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 either because (a) I am exempt from backup withholding, (b) I have not been notified
by the IRS that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the
IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been notified by the IRS that you are subject to
backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the
IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out item (2).
Signature: _______________________________ Date: ________________ , 199 .
- ---------------------------------------------------------------------------------------------------------------------------------
</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 CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
15
<PAGE> 16
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212) 269-5550
ALL OTHERS CALL TOLL FREE (800) 714-3311
The Dealer Managers for the Offer are:
MORGAN STANLEY DEAN WITTER
1585 Broadway
New York, New York 10036
(800) 761-8950, Ext. 17938
and
BEAR, STEARNS & CO. INC
245 Park Avenue
New York, New York 10167
(877) 316-0172
16
<PAGE> 1
Exhibit 11(a)(3)
APPLICATION FORM FOR SHARES IN BEARER FORM AS CF-CERTIFICATES ("POLYGRAM
CF-SHARES"), APPLICATION FORM FOR SHARES IN BEARER FORM AS K-CERTIFICATES
("POLYGRAM K-SHARES") AND APPLICATION FORM WHICH ALSO SERVES AS DEED OF TRANSFER
FOR SHARES REGISTERED IN THE BAARN REGISTRY OF POLYGRAM N.V. ("POLYGRAM DUTCH
REGISTERED SHARES") ("APPLICATION FORM/DEED OF TRANSFER")
Exchange Offer made by
THE SEAGRAM COMPANY LTD.
to acquire all issued Shares of
POLYGRAM N.V.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 3:00 P.M., AMSTERDAM TIME
(9:00 A.M., NEW YORK CITY TIME), ON FRIDAY, DECEMBER 4, 1998, UNLESS THE OFFER
IS EXTENDED.
This Application Form/Deed of Transfer is to be completed only by holders of
PolyGram CF-Shares, PolyGram K-Shares or PolyGram Dutch Registered Shares that
wish to tender such shares in the Offer (as defined in the Offering
Circular/Prospectus dated November 4, 1998 (the "Offering
Circular/Prospectus")). Holders of PolyGram U.S. Registered Shares (as defined
in the Offering Circular/Prospectus) wishing to tender such shares in the Offer
should complete the Letter of Transmittal/Election Form accompanying the
Offering Circular/Prospectus.
The Undersigned,
Name:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
City and Postal Code:
- --------------------------------------------------------------------------------
Country:
- --------------------------------------------------------------------------------
Account number with (bank) at
---------- -------------------- -------------------
Hereby applies for, tenders and, if the undersigned is the holder of PolyGram
Dutch Registered Shares, hereby transfers the following numbers of shares in
accordance with the terms of the Offer as set forth in the Offering
Circular/Prospectus:
For the CASH CONSIDERATION (NLG 115 per PolyGram share, net to the seller in
cash without interest thereon):
PolyGram CF-Shares, par value NLG 0.50 per share (no.)
-------------------
PolyGram K-Shares, par value NLG 0.50 per share(1) (no.)
-------------------
PolyGram Dutch Registered Shares, par value NLG 0.50
per share (no.)
-------------------
For the SHARE CONSIDERATION (1.3772 Seagram common shares per PolyGram
share)(2):
PolyGram CF-Shares, par value NLG 0.50 per share (no.)
-------------------
PolyGram K-Shares, par value NLG 0.50 per share(1) (no.)
-------------------
PolyGram Dutch Registered Shares, par value NLG 0.50
per share (no.)
-------------------
- ---------------
(1)PolyGram K-Shares should be attached to this Application Form/Deed of
Transfer including the talon and all dividend coupons numbered as from number 9.
(2)Attention is drawn to the limited availability of the Share Consideration:
Share Consideration shall be paid in respect of 34,783,758 PolyGram shares and
Cash Consideration shall be paid in respect of all other tendered PolyGram
shares. To the extent holders of PolyGram shares elect to receive Share
Consideration for more than 34,783,758 shares, each holder making an election to
receive Share Consideration will receive Share Consideration in respect of a
portion of such shares and Cash Consideration in respect of the remainder of
such shares. See "The Offer -- Limited Availability of Share Consideration" in
the Offering Circular/Prospectus. ACCORDINGLY, HOLDERS OF POLYGRAM SHARES WHO
ELECT TO RECEIVE SHARE CONSIDERATION MAY EXPERIENCE A RANGE OF ACTUAL OUTCOMES
BASED UPON THE ELECTIONS OF OTHER POLYGRAM SHAREHOLDERS. SUCH HOLDERS WILL NOT
BE ABLE TO CHANGE THE NUMBER OF COMMON SHARES ("SEAGRAM SHARES") OF THE SEAGRAM
COMPANY LTD. ("SEAGRAM") OR THE AMOUNT OF CASH ALLOCATED TO THEM PURSUANT TO THE
PRORATION PROCEDURES.
In addition, entitlement to any fractional Seagram Share will be paid in cash
only (by multiplying the fractional interest by NLG 83.50). See "The
Offer -- Offer Consideration" in the Offering Circular/Prospectus.
<PAGE> 2
This Application Form/Deed of Transfer will be retained by the office at which
it is lodged until the transfer takes place.
The transfer of ownership of any PolyGram Dutch Registered Shares by this
Application Form/Deed of Transfer is subject to the condition that the Offer has
been accepted by Seagram or its permitted assigns, and will be effected at the
date of delivery of such shares to and receipt of payment from Seagram or its
permitted assigns. If the Offer does not proceed, this Application Form/Deed of
Transfer will be returned to the undersigned.
Once the transfer has taken place, none of the parties will be entitled to
demand that the agreement contained in this Application Form/Deed of Transfer be
dissolved or declared null and void.
If PolyGram Dutch Registered Shares are tendered pursuant to this Application
Form/Deed of Transfer, insofar as necessary, this Application Form/Deed of
Transfer shall serve as a power of attorney of the undersigned to Seagram to
transfer on behalf of the undersigned such PolyGram Dutch Registered Shares to
Seagram, or its permitted assigns, in accordance with the terms and conditions
of this Application Form/Deed of Transfer.
This Application Form/Deed of Transfer and the agreement of transfer and the
power of attorney contained herein are governed by Netherlands law.
Holders of PolyGram CF-Shares are requested to sign this Application Form/Deed
of Transfer and hand it in at the branch office of their bank or other
custodian; holders of PolyGram K-Shares are requested to sign this Application
Form/Deed of Transfer and mail or deliver it to MeesPierson N.V., Rokin 55, 1012
KK Amsterdam or at the branch office of their bank or other custodian.
The undersigned hereby declares, also on behalf of those persons whose PolyGram
Shares are hereby offered, to Seagram and PolyGram N.V. and every person acting
for or on their behalf, that he or she is aware of the restrictions as set out
in the Offering Circular/Prospectus which may be applicable to his or her
application and tender and that his or her application and tender is not
inconsistent with such restrictions.
Holders of PolyGram Dutch Registered Shares are required to sign this
Application Form/Deed of Transfer, which serves as Deed of Transfer of PolyGram
Dutch Registered Shares, and mail or deliver it to MeesPierson N.V., Rokin 55,
1012 KK Amsterdam.
To (bank/custodian):
- --------------------------------------------------------------------------------
Address (bank/custodian):
- --------------------------------------------------------------------------------
Address (undersigned):
- --------------------------------------------------------------------------------
Date:
- --------------------------------------------------------------------------------
Signature:
- --------------------------------------------------------------------------------
NOTE FOR HOLDERS OF POLYGRAM DUTCH REGISTERED SHARES IN THE BAARN REGISTRY OF
POLYGRAM N.V.
The transfer of PolyGram Dutch Registered Shares shall be effected at the date
of delivery of such shares to and receipt of payment from Seagram or its
permitted assigns. To this end this Application Form/Deed of Transfer, which
serves as Deed of Transfer of PolyGram Dutch Registered Shares, shall be
submitted to Seagram, or its permitted assigns, for co-signature or to
MeesPierson N.V. to co-sign as legal representative thereof. PolyGram N.V. shall
subsequently acknowledge transfer in the form of a declaration bearing a date on
this Application Form/Deed of Transfer.
In the event that the Offer to acquire Shares in PolyGram N.V. is not honored,
this Application Form/ Deed of Transfer shall be returned to the holder of
PolyGram Dutch Registered Shares concerned.
Montreal, Quebec, Canada
On behalf of The Seagram Company Ltd. to signify acceptance:
- ---------------------------------------
2
<PAGE> 1
Exhibit 11(a)(4)
NOTICE OF GUARANTEED DELIVERY
TO TENDER SHARES OF
POLYGRAM N.V.
As set forth under "The Offer--Procedure for Tendering PolyGram Shares--For
Holders of PolyGram U.S. Registered Shares--Guaranteed Delivery" in the Offering
Circular/Prospectus described below, this instrument or one substantially
equivalent hereto must be used to accept the Offer (as defined below) if
certificates for PolyGram U.S. Registered Shares (as defined below) are not
immediately available or the certificates for PolyGram U.S. Registered Shares
and all other required documents cannot be delivered to Citibank, N.A. (the
"U.S. Exchange Agent") on or prior to the Expiration Date (as defined in the
Offering Circular/Prospectus) or if the procedure for delivery by book-entry
transfer cannot be completed on a timely basis. This instrument may be delivered
by hand or mailed to the U.S. Exchange Agent.
THE U.S. EXCHANGE AGENT FOR THE OFFER IS:
Citibank, N.A.
1-800-422-2066
<TABLE>
<CAPTION>
BY COURIER BY MAIL BY HAND
---------- ------- -------
<S> <C> <C>
c/o Citicorp Data Distribution, Inc. c/o Citicorp Data Distribution, Inc. 111 Wall Street
400 Sette Drive Post Office Box 7073 5th Floor Receive Window
Paramus, New Jersey 07652 Paramus, New Jersey 07653 New York, New York
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal/Election Form 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 in the Letter of
Transmittal/Election Form.
THIS NOTICE OF GUARANTEED DELIVERY IS TO BE COMPLETED ONLY BY HOLDERS OF
POLYGRAM U.S. REGISTERED SHARES. HOLDERS OF POLYGRAM CF-SHARES, POLYGRAM
K-SHARES OR POLYGRAM DUTCH REGISTERED SHARES (AS SUCH TERMS ARE DEFINED IN THE
OFFERING CIRCULAR/PROSPECTUS) WISHING TO TENDER SUCH SHARES IN THE OFFER SHOULD
COMPLETE THE APPLICATION FORM/DEED OF TRANSFER ACCOMPANYING THE OFFERING
CIRCULAR/PROSPECTUS.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to The Seagram Company Ltd., a corporation
organized under the laws of Canada ("Seagram"), or its permitted assigns, upon
the terms and subject to the conditions set forth in the Offering
Circular/Prospectus dated November 4, 1998 (the "Offering Circular/Prospectus"),
receipt of which is hereby acknowledged, and in the related Letter of
Transmittal/Election Form (which, together with the related Application
Form/Deed of Transfer, as any of the foregoing may be amended or supplemented
from time to time, constitute the "Offer"), the number of issued shares
indicated below, par value NLG 0.50 per share ("PolyGram Shares"), of PolyGram
N.V., a corporation incorporated under the laws of the Netherlands, that are
held in the form of PolyGram U.S. Registered Shares (as defined in the Offering
Circular/Prospectus), pursuant to the guaranteed delivery procedure set forth
under "The Offer -- Procedure for Tendering PolyGram Shares -- For Holders of
PolyGram U.S. Registered Shares -- Guaranteed Delivery" in the Offering
Circular/Prospectus.
<TABLE>
<S> <C>
Signature(s) Address(es)
- -------------------------------------------------------- --------------------------------------------------------
Name(s) of Record Holders --------------------------------------------------------
- -------------------------------------------------------- Zip Code
- -------------------------------------------------------- Area Code and Tel. No(s).
Please Type or Print --------------------------------------------------------
Number of PolyGram Shares If PolyGram Shares will be tendered by book-entry
- -------------------------------------------------------- transfer, please provide a DTC Account Number:
Certificate Nos. (If Available) DTC Account Number
- -------------------------------------------------------- --------------------------------------------------------
- -------------------------------------------------------- --------------------------------------------------------
- --------------------------------------------------------
Dated ------------------------------------------, 199 --
</TABLE>
2
<PAGE> 3
With the express understanding that any election made in this Notice of
Guaranteed Delivery may not be changed after the Expiration Date, including by a
Letter of Transmittal/Election Form submitted after the Expiration Date, the
signatory or signatories above hereby make the following election with respect
to the PolyGram U.S. Registered Shares listed above:
ELECTION OF CONSIDERATION
Each holder of tendered PolyGram U.S. Registered Shares has the right to specify
(an "Election"), subject to the provisions relating to fractional Seagram Shares
(as defined in the Offering Circular/Prospectus) described under "The
Offer -- Offer Consideration" in the Offering Circular/Prospectus and the
limitations described under "The Offer -- Limited Availability of Share
Consideration" in the Offering Circular/Prospectus, (i) the number of tendered
PolyGram U.S. Registered Shares owned by such holder that such holder desires to
have exchanged for Share Consideration (as defined in the Offering
Circular/Prospectus) in the Offer (a "Share Election") and (ii) the number of
tendered PolyGram U.S. Registered Shares owned by such holder that such holder
desires to have exchanged for Cash Consideration (as defined in the Offering
Circular/Prospectus) in the Offer (a "Cash Election").
So long as the provisions of the Guarantee below are complied with, (i) each
tendered PolyGram U.S. Registered Share for which a valid Share Election has
been received will be exchanged for Share Consideration in the Offer, subject to
the limitations referred to above, and (ii) each tendered PolyGram U.S.
Registered Share for which a valid Cash Election has been received and each
tendered PolyGram U.S. Registered Share as to which a valid Election is not in
effect on the Expiration Date (a "Non-Electing Share") will be exchanged for
Cash Consideration in the Offer. ACCORDINGLY, IF YOU FAIL TO MAKE AN ELECTION
BELOW FOR ANY OF THE POLYGRAM U.S. REGISTERED SHARES TENDERED HEREBY, YOU WILL
RECEIVE CASH CONSIDERATION IN EXCHANGE FOR ALL SUCH POLYGRAM U.S. REGISTERED
SHARES THAT ARE ACCEPTED PURSUANT TO THE OFFER, SO LONG AS THE PROVISIONS OF THE
GUARANTEE BELOW ARE COMPLIED WITH. If Seagram determines that any Election is
not properly made with respect to any tendered PolyGram U.S. Registered Shares,
such Election shall be deemed to be not in effect, and the tendered PolyGram
U.S. Registered Shares covered by such Election shall, for purposes of the
Offer, be deemed to be Non-Electing Shares.
SEE THE SECTION OF THE OFFERING CIRCULAR/PROSPECTUS ENTITLED "THE
OFFER -- ELECTION PROCEDURES" AND INSTRUCTIONS B.1 THROUGH B.4 OF THE LETTER OF
TRANSMITTAL/ELECTION FORM FOR A COMPLETE DESCRIPTION OF THE PROCEDURES FOR
MAKING AN ELECTION.
CHECK ONLY ONE OF THE BOXES BELOW. You may make a Cash Election or a Share
Election as to each PolyGram U.S. Registered Share that you hold. If you wish to
make a Cash Election as to certain shares and a Share Election as to other
shares, check the "Cash and Share Elections" box below and indicate in the space
provided below the number of tendered PolyGram U.S. Registered Shares for which
a Cash Election or a Share Election is being made.
[ ] A CASH ELECTION (NLG 115 per PolyGram U.S. Registered Share net to the
seller in cash without interest thereon) is made as to all PolyGram
U.S. Registered Shares tendered pursuant to this Notice of Guaranteed
Delivery (all cash).
[ ] A SHARE ELECTION (1.3772 Seagram Shares per PolyGram U.S. Registered
Share) is made as to all PolyGram U.S. Registered Shares tendered
pursuant to this Notice of Guaranteed Delivery (all Seagram Shares,
subject to proration).
[ ] CASH AND SHARE ELECTIONS are made as to the PolyGram U.S. Registered
Shares tendered pursuant to this Notice of Guaranteed Delivery, in the
following proportions (the total number of shares listed below must
equal the total number of shares being tendered hereby):
<TABLE>
<S> <C>
Number of Shares as to which Number of Shares as to which
a Cash Election is Made a Share Election is Made (subject to proration)
--------------------------------------- ---------------------------------------
</TABLE>
Unless you indicate otherwise in the box below entitled "Special Currency
Instructions," cash payments pursuant to the Offer will be made in U.S. Dollars.
3
<PAGE> 4
SPECIAL CURRENCY INSTRUCTIONS
(SEE INSTRUCTION A.8 OF THE LETTER OF TRANSMITTAL/ELECTION FORM)
[ ] PAYMENT IN DUTCH GUILDERS. Check this box if you wish to receive cash
payments pursuant to the Offer in Dutch Guilders instead of U.S. Dollars.
MAKE NO MARK IN THIS BOX IF YOU WISH TO RECEIVE PAYMENTS IN RESPECT OF CASH
CONSIDERATION AND CASH IN LIEU OF FRACTIONAL SEAGRAM SHARES IN U.S. DOLLARS.
Book-Entry Shareholders (as defined in the Letter of Transmittal/ Election
Form) who wish to receive cash payments pursuant to the Offer in Dutch
Guilders instead of U.S. Dollars must also (i) provide the U.S. Exchange
Agent with (A) wire instructions for an account in the Netherlands to which
such payment may be made or (B) an address to which a check for such payment
may be mailed and (ii) submit herewith a copy of the Agent's Message used to
tender such Book-Entry Shareholder's PolyGram U.S. Registered Shares. In the
event that any such wire instructions are invalid or incomplete, such
payment will be made in Dutch Guilders by check. Holders of PolyGram U.S.
Registered Shares who elect to receive cash payments pursuant to the Offer
in Dutch Guilders and who do not tender such shares by book-entry transfer
must have their signature on the Letter of Transmittal/Election Form
guaranteed by an Eligible Institution (as defined in the Letter of
Transmittal/Election Form). See Instruction A.1 of the Letter of
Transmittal/Election Form.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(BOOK-ENTRY SHAREHOLDERS WHO WISH TO HAVE
PAYMENT OF ANY CASH CONSIDERATION
AND CASH IN LIEU OF FRACTIONAL SEAGRAM SHARES
MADE IN DUTCH GUILDERS INSTEAD
OF U.S. DOLLARS SHOULD PROVIDE WIRE
INSTRUCTIONS OR AN ADDRESS HERE)
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member in good standing of the
Securities Transfer Agents Medallion Program, the Stock Exchange Medallion
Program or the New York Stock Exchange, Inc. Medallion Signature Program, (a)
represents that the above named person(s) "own(s)" the PolyGram U.S. Registered
Shares tendered hereby within the meaning of Rule 14e-4 under the Securities
Exchange Act of 1934, as amended ("Rule 14e-4"), (b) represents that such tender
of PolyGram U.S. Registered Shares complies with Rule 14e-4 and (c) guarantees
to deliver to the U.S. Exchange Agent either the certificates evidencing all
tendered PolyGram U.S. Registered Shares, in proper form for transfer, or to
deliver PolyGram U.S. Registered Shares pursuant to the procedure for book-entry
transfer into the U.S. Exchange Agent's account at The Depository Trust Company
(the "Book-Entry Transfer Facility"), in either case together with the Letter of
Transmittal/Election Form, properly completed and duly executed, with any
required signature guarantees or, in the case of a book-entry delivery, an
Agent's Message (as defined in the Offering Circular/Prospectus), and any other
required documents, all within three New York Stock Exchange trading days after
the date hereof.
<TABLE>
<S> <C>
- ------------------------------------------------------------ ------------------------------------------------------------
Name of Firm Authorized Signature
- ------------------------------------------------------------ Name -------------------------------------------------------
Address Please Type or Print
- ------------------------------------------------------------ Title ------------------------------------------------------
Zip Code
- ------------------------------------------------------------ Dated: ---------------------------------------------, 199 --
Area Code and Tel No.
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR POLYGRAM U.S. REGISTERED SHARES WITH THIS
NOTICE. CERTIFICATES FOR POLYGRAM U.S. REGISTERED SHARES SHOULD BE SENT WITH
YOUR LETTER OF TRANSMITTAL/ELECTION FORM.
4
<PAGE> 1
Exhibit 11(a)(5)
EXCHANGE OFFER FOR
ALL ISSUED SHARES
OF
POLYGRAM N.V.
FOR
NLG 115 IN CASH OR
1.3772 COMMON SHARES OF
THE SEAGRAM COMPANY LTD.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 3:00 P.M., AMSTERDAM TIME (9:00 A.M.,
NEW YORK CITY TIME), ON FRIDAY, DECEMBER 4, 1998, UNLESS THE OFFER IS EXTENDED.
November 4, 1998
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by The Seagram Company Ltd., a corporation organized
under the laws of Canada ("Seagram"), to act as dealer managers (the "Dealer
Managers") in connection with Seagram's offer to acquire all issued shares, par
value NLG 0.50 per share ("PolyGram Shares"), of PolyGram N.V., a corporation
incorporated under the laws of the Netherlands ("PolyGram"), not already owned
by Seagram or its affiliates for, at the election of each holder of PolyGram
Shares, per share consideration of either (i) 1.3772 common shares without
nominal or par value ("Seagram Shares") of Seagram (the "Share Consideration")
or (ii) NLG 115, net to the seller in cash without interest thereon (the "Cash
Consideration" and, together with the Share Consideration, the "Offer
Consideration"), upon the terms and subject to the conditions set forth in the
Offering Circular/Prospectus dated November 4, 1998 (the "Offering
Circular/Prospectus"), and in the related Letter of Transmittal/Election Form
(which, together with the related Application Form/Deed of Transfer, as any of
the foregoing may be amended or supplemented from time to time, constitute the
"Offer") enclosed herewith. Holders of PolyGram U.S. Registered Shares (as
defined in the Offering Circular/Prospectus) whose certificates for such
PolyGram U.S. Registered Shares ("PolyGram Certificates") are not immediately
available, who cannot deliver their PolyGram Certificates and all other required
documents to the U.S. Exchange Agent (as defined below) on or prior to the
Expiration Date (as defined in the Offering Circular/Prospectus) or who cannot
complete the procedures for book-entry transfer described in the Offering
Circular/Prospectus on a timely basis, must tender their PolyGram U.S.
Registered Shares according to the guaranteed delivery procedure described under
"The Offer -- Procedure for Tendering PolyGram Shares -- For Holders of PolyGram
U.S. Registered Shares -- Guaranteed Delivery" in the Offering
Circular/Prospectus. Please furnish copies of the enclosed materials to those of
your clients for whose accounts you hold PolyGram U.S. Registered Shares
registered 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 Offering Circular/Prospectus.
2. The Letter of Transmittal/Election Form to tender PolyGram U.S.
Registered Shares for your use and for the information of your clients.
3. The Notice of Guaranteed Delivery for PolyGram Shares to be used
to accept the Offer if PolyGram Certificates are not immediately available,
if such certificates and all other required documents cannot be delivered
to Citibank, N.A. (the "U.S. Exchange Agent") by the Expiration Date or if
the procedure for book-entry transfer cannot be completed by the Expiration
Date.
<PAGE> 2
4. The Letter to PolyGram shareholders from the President and Chief
Executive Officer of PolyGram, accompanied by PolyGram's
Solicitation/Recommendation Statement on Schedule 14D-9, which includes the
recommendation of the PolyGram Board of Management and the PolyGram
Supervisory Board that shareholders accept the Offer and tender their
PolyGram Shares to Seagram pursuant to the Offer.
5. A printed form of letter which may be sent to your clients for
whose accounts you hold PolyGram U.S. Registered 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 for Certification of Taxpayer Identification Number on
Substitute Form W-9.
7. A return envelope addressed to Citibank, N.A., the U.S. Exchange
Agent.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
3:00 P.M., AMSTERDAM TIME (9:00 A.M., NEW YORK CITY TIME), ON FRIDAY, DECEMBER
4, 1998, UNLESS THE OFFER IS EXTENDED.
Share Consideration will be paid in respect of 34,783,758 tendered PolyGram
Shares and Cash Consideration will be paid in respect of all other tendered
PolyGram Shares. For so long as the Offer Agreement is in effect, Koninklijke
Philips Electronics N.V., a corporation incorporated under the laws of the
Netherlands ("Philips") and the beneficial owner of 75% of the issued PolyGram
Shares as of the date of the Offering Circular/Prospectus, has agreed to validly
tender pursuant to and in accordance with the terms of the Offer and not
withdraw such tender of all of its PolyGram Shares and to elect to receive Share
Consideration in respect of all of its PolyGram Shares. If no other PolyGram
shareholder makes an election (a "Share Election") to have such shareholder's
PolyGram Shares exchanged for Share Consideration in the Offer, Philips will
receive Seagram Shares in the Offer in respect of 34,783,758 of its PolyGram
Shares and Cash Consideration in respect of its remaining PolyGram Shares. If
PolyGram shareholders (other than Philips) make Share Elections, all such
shareholders (including Philips) will have an equal opportunity to receive Share
Consideration in the Offer (based on the number of tendered PolyGram Shares in
respect of which each such holder (including Philips) has made a Share
Election), subject to the limitation that Share Consideration will be paid in
respect of an aggregate of 34,783,758 tendered PolyGram Shares. To the extent
Share Elections are made in respect of more than 34,783,758 shares, each
tendering PolyGram shareholder making a Share Election will receive Share
Consideration in respect of a portion of such shares and Cash Consideration in
respect of the remainder of such shares. See "The Offer -- Limited Availability
of Share Consideration" in the Offering Circular/Prospectus for examples
illustrating the potential outcomes available to tendering PolyGram shareholders
making a Share Election.
Seagram will not issue any fractional Seagram Shares in the Offer. In lieu
of any such fractional Seagram Share, each tendering PolyGram shareholder who
would otherwise be entitled to receive a fractional Seagram Share will receive
an amount in cash (without interest) determined by multiplying the fractional
interest in a Seagram Share to which such shareholder would otherwise be
entitled by NLG 83.50.
HOLDERS OF POLYGRAM U.S. REGISTERED SHARES WILL RECEIVE ALL CASH PAYMENTS
PURSUANT TO THE OFFER IN U.S. DOLLARS UNLESS THE HOLDER ELECTS TO RECEIVE SUCH
PAYMENTS IN DUTCH GUILDERS. See Instruction A.8 of the Letter of Transmittal/
Election Form. PolyGram shareholders who tender PolyGram Shares by book-entry
transfer and wish to receive cash payments pursuant to the Offer in Dutch
Guilders instead of U.S. Dollars must also (i) provide the U.S. Exchange Agent
with (A) wire instructions for an account in the Netherlands to which such
payment may be made or (B) an address to which a check for such payment may be
mailed and (ii) submit to the U.S. Exchange Agent a copy of the Agent's Message
used to tender such shareholder's PolyGram Shares. In the event that any such
wire instructions are invalid or incomplete, such payments will be made in Dutch
Guilders by check. Holders of PolyGram U.S. Registered shares who elect to
receive cash payments pursuant to the Offer in Dutch Guilders and who do not
tender such shares by book-entry transfer must have their signature on the
Letter of Transmittal/Election Form guaranteed by an Eligible Institution (as
defined in the Letter of Transmittal/Election Form). See Instruction A.1 of the
Letter of Transmittal/Election Form.
2
<PAGE> 3
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn pursuant to the Offer a number of PolyGram
Shares which, when added to any PolyGram Shares previously acquired by Seagram,
constitutes at least 95% of the issued share capital of PolyGram as of the
Expiration Date. The Offer is also subject to other terms and conditions which
PolyGram shareholders should carefully consider. See "The Offer -- Certain
Conditions of the Offer" in the Offering Circular/Prospectus.
Each of the PolyGram Board of Management, by unanimous vote, and the
PolyGram Supervisory Board, by affirmative vote of all directors (other than two
designees of Philips, who abstained), has determined that the Offer is in the
best interests of PolyGram and is fair to the PolyGram shareholders, has
approved the Offer Agreement (as defined below) and recommends that PolyGram
shareholders tender their PolyGram Shares in the Offer. See "The Offer --
PolyGram's Reasons for the Offer; Recommendation of the PolyGram Board of
Management and the PolyGram Supervisory Board" in the Offering
Circular/Prospectus.
The Offer is being made pursuant to an offer agreement dated as of June 21,
1998 among Seagram, PolyGram and Philips (the "Offer Agreement") which provides
for, among other things, the making of the Offer by Seagram. Any PolyGram
shareholders who do not tender their PolyGram Shares will remain shareholders of
PolyGram following consummation of the Offer until such time as Seagram acquires
at least 95% of the issued PolyGram Shares and the Enterprise Division of the
Court of Appeals in Amsterdam subsequently approves a compulsory acquisition
(the "Compulsory Acquisition") of the remaining minority PolyGram Shares
pursuant to the Dutch Civil Code. Those PolyGram shareholders who do not tender
their PolyGram Shares pursuant to the Offer are not entitled to receive
consideration for their PolyGram Shares from Seagram at any time subsequent to
the consummation of the Offer unless Seagram effects such Compulsory Acquisition
or otherwise agrees to acquire such holder's PolyGram Shares in accordance with
applicable law. See "The Offer -- Purpose of the Offer; Plans for PolyGram" in
the Offering Circular/ Prospectus.
Following consummation of the Offer, Seagram intends to effect a corporate
reorganization of PolyGram and its subsidiaries which may include, among other
things, the transfer of subsidiaries from PolyGram to affiliates of Seagram for
fair market value and the distribution of substantially all the proceeds
received from such transfers as a dividend (a "Post-Closing Dividend") to
PolyGram shareholders. See "The Offer -- Purpose of the Offer; Plans for
PolyGram -- Post-Closing Restructuring; Post-Closing Dividend" in the Offering
Circular/Prospectus. Receipt of a Post-Closing Dividend by non-tendering
PolyGram shareholders could have adverse tax consequences to such shareholders.
See "Certain Material Tax Consequences -- Tax Consequences of a Post-Closing
Dividend" in the Offering Circular/ Prospectus.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal/Election Form and any required signature
guarantees, or an Agent's Message (as defined in the Offering
Circular/Prospectus) in connection with a book-entry delivery of PolyGram U.S.
Registered Shares, and other required documents should be sent to the U.S.
Exchange Agent, and (ii) PolyGram Certificates representing the tendered
PolyGram U.S. Registered Shares should be delivered to the U.S. Exchange Agent,
or such PolyGram U.S. Registered Shares should be tendered by book-entry
transfer into the U.S. Exchange Agent's account maintained at the Book-Entry
Transfer Facility (as described in the Offering Circular/Prospectus), all in
accordance with the instructions set forth in the Letter of Transmittal/Election
Form and the Offering Circular/Prospectus.
If holders of PolyGram Shares wish to tender, but it is impracticable for
them to forward their PolyGram Certificates or other required documents on or
prior to the Expiration Date or to comply with the book-entry transfer
procedures on a timely basis, a tender must be effected by following the
guaranteed delivery procedures specified under "The Offer -- Procedure for
Tendering PolyGram Shares -- For Holders of PolyGram U.S. Registered
Shares -- Guaranteed Delivery" in the Offering Circular/Prospectus.
Except as set forth in the Offering Circular/Prospectus, Seagram will not
pay any fees or commissions to any broker or dealer or any other person for
soliciting tenders of PolyGram Shares pursuant to the Offer. Seagram will,
however, upon request, reimburse you for reasonable and necessary expenses
incurred by you in forwarding any of the enclosed materials to your clients.
Seagram will pay or cause to be paid any stock transfer taxes payable on the
transfer of PolyGram Shares to it, except as otherwise provided in Instruction
A.6 of the Letter of Transmittal/Election Form.
3
<PAGE> 4
Inquiries you may have with respect to the Offer should be addressed to D.
F. King & Co., Inc. (the "Information Agent") or the undersigned, at the
respective addresses and telephone numbers set forth on the back cover of the
Offering Circular/Prospectus. Additional copies of the enclosed materials may be
obtained from the Information Agent.
Very truly yours,
MORGAN STANLEY DEAN WITTER
BEAR, STEARNS & CO. INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON THE AGENT OF SEAGRAM, THE DEALER MANAGERS, POLYGRAM, THE U.S.
EXCHANGE AGENT, THE DUTCH EXCHANGE AGENT (AS DEFINED IN THE OFFERING
CIRCULAR/PROSPECTUS) OR 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.
4
<PAGE> 1
Exhibit 11(a)(6)
EXCHANGE OFFER FOR
ALL ISSUED SHARES
OF
POLYGRAM N.V.
FOR
NLG 115 IN CASH OR
1.3772 COMMON SHARES OF
THE SEAGRAM COMPANY LTD.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 3:00 P.M., AMSTERDAM TIME (9:00 A.M.,
NEW YORK CITY TIME), ON FRIDAY, DECEMBER 4, 1998, UNLESS THE OFFER IS EXTENDED.
November 4, 1998
To Our Clients:
Enclosed for your consideration is an Offering Circular/Prospectus dated
November 4, 1998 (the "Offering Circular/Prospectus"), and the related Letter of
Transmittal/Election Form relating to an offer by The Seagram Company Ltd., a
corporation organized under the laws of Canada ("Seagram"), to acquire all
issued shares, par value NLG 0.50 per share ("PolyGram Shares"), of PolyGram
N.V., a corporation incorporated under the laws of the Netherlands ("PolyGram"),
not already owned by Seagram or its affiliates for, at the election of each
holder of PolyGram Shares, per share consideration of either (i) 1.3772 common
shares without nominal or par value ("Seagram Shares") of Seagram (the "Share
Consideration") or (ii) NLG 115, net to the seller in cash without interest
thereon (the "Cash Consideration" and, together with the Share Consideration,
the "Offer Consideration"), upon the terms and subject to the conditions set
forth in the Offering Circular/Prospectus and in the related Letter of
Transmittal/Election Form (which, together with the related Application
Form/Deed of Transfer, as any of the foregoing may be amended or supplemented
from time to time, constitute the "Offer"). Holders of PolyGram U.S. Registered
Shares (as defined in the Offering Circular/Prospectus) whose certificates for
such PolyGram U.S. Registered Shares ("PolyGram Certificates") are not
immediately available, who cannot deliver their PolyGram Certificates and all
other required documents to Citibank, N.A., the U.S. Exchange Agent, on or prior
to the Expiration Date (as defined in the Offering Circular/ Prospectus) or who
cannot complete the procedures for book-entry transfer described in the Offering
Circular/Prospectus on a timely basis, must tender their PolyGram U.S.
Registered Shares according to the guaranteed delivery procedure described under
"The Offer -- Procedure for Tendering PolyGram Shares -- For Holders of PolyGram
U.S. Registered Shares -- Guaranteed Delivery" in the Offering
Circular/Prospectus.
WE ARE THE HOLDER OF RECORD OF POLYGRAM U.S. REGISTERED SHARES HELD BY US
FOR YOUR ACCOUNT. A TENDER OF SUCH POLYGRAM U.S. REGISTERED SHARES CAN BE MADE
ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER
OF TRANSMITTAL/ELECTION FORM IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND
CANNOT BE USED BY YOU TO TENDER POLYGRAM U.S. REGISTERED SHARES HELD BY US FOR
YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on your
behalf any or all of such PolyGram U.S. Registered Shares held by us for your
account, as well as to what form of consideration you wish to receive for any
such tendered PolyGram U.S. Registered Shares, pursuant to the terms and subject
to the conditions set forth in the Offering Circular/Prospectus. Your attention
is directed to the following:
1. The Offer Consideration for each tendered PolyGram Share is, at
your election, either (i) 1.3772 Seagram Shares or (ii) NLG 115 net to the
seller in cash without interest thereon, subject to the limitations
described in items 2 and 3 below.
2. Upon the terms and subject to the conditions of the Offer, Share
Consideration will be paid in respect of 34,783,758 tendered PolyGram
Shares and Cash Consideration will be paid in respect of all other tendered
PolyGram Shares. For so long as the Offer Agreement is in effect,
Koninklijke Philips Electronics N.V., a corporation incorporated under the
laws of the Netherlands ("Philips") and the beneficial owner of 75% of the
issued
<PAGE> 2
PolyGram Shares as of the date of the Offering Circular/Prospectus, has
agreed to validly tender pursuant to and in accordance with the terms of
the Offer and not withdraw such tender of all of its PolyGram Shares and to
elect to receive Share Consideration in respect of all of its PolyGram
Shares. If no other PolyGram shareholder makes an election (a "Share
Election") to have such shareholder's PolyGram Shares exchanged for Share
Consideration in the Offer, Philips will receive Seagram Shares in the
Offer in respect of 34,783,758 of its PolyGram Shares and Cash
Consideration in respect of its remaining PolyGram Shares. If PolyGram
shareholders (other than Philips) make Share Elections, all such
shareholders (including Philips) will have an equal opportunity to receive
Share Consideration in the Offer (based on the number of tendered PolyGram
Shares in respect of which each such holder (including Philips) has made a
Share Election), subject to the limitation that Share Consideration will be
paid in respect of an aggregate of 34,783,758 tendered PolyGram Shares. To
the extent Share Elections are made in respect of more than 34,783,758
shares, each tendering PolyGram shareholder making a Share Election will
receive Share Consideration in respect of a portion of such shares and Cash
Consideration in respect of the remainder of such shares. See "The
Offer -- Limited Availability of Share Consideration" in the Offering
Circular/Prospectus for examples illustrating the potential outcomes
available to tendering PolyGram shareholders making a Share Election.
3. Seagram will not issue any fractional Seagram Shares in the
Offer. In lieu of any such fractional Seagram Share, each tendering
PolyGram shareholder who would otherwise be entitled to receive a
fractional Seagram Share will receive an amount in cash (without interest)
determined by multiplying the fractional interest in a Seagram Share to
which such shareholder would otherwise be entitled by NLG 83.50.
4. HOLDERS OF POLYGRAM U.S. REGISTERED SHARES WILL RECEIVE ALL CASH
PAYMENTS PURSUANT TO THE OFFER IN U.S. DOLLARS UNLESS THE HOLDER ELECTS TO
RECEIVE SUCH PAYMENTS IN DUTCH GUILDERS. See Instruction A.8 of the Letter
of Transmittal/Election Form. PolyGram shareholders who tender PolyGram
U.S. Registered Shares by book-entry transfer and wish to receive cash
payments pursuant to the Offer in Dutch Guilders instead of U.S. Dollars
must also (i) provide the U.S. Exchange Agent with (A) wire instructions
for an account in the Netherlands to which such payment may be made or (B)
an address to which a check for such payment may be mailed and (ii) submit
to the U.S. Exchange Agent a copy of the Agent's Message used to tender
such shareholder's PolyGram U.S. Registered Shares. In the event that any
such wire instructions are invalid or incomplete, such payments will be
made in Dutch Guilders by check. Holders of PolyGram U.S. Registered Shares
who elect to receive cash payments pursuant to the Offer in Dutch Guilders
and who do not tender such shares by book-entry transfer must have their
signature on the Letter of Transmittal/Election Form guaranteed by an
Eligible Institution (as defined in the Letter of Transmittal/ Election
Form). See Instruction A.1 of the Letter of Transmittal/Election Form.
5. The Offer is made for all issued PolyGram Shares.
6. Each of the PolyGram Board of Management, by unanimous vote, and
the PolyGram Supervisory Board, by affirmative vote of all directors (other
than two designees of Philips, who abstained), has determined that the
Offer is in the best interests of PolyGram and is fair to the PolyGram
shareholders, has approved the Offer Agreement (as defined below) and
recommends that PolyGram shareholders tender their PolyGram Shares in the
Offer. See "The Offer -- PolyGram's Reasons for the Offer; Recommendation
of the PolyGram Board of Management and the PolyGram Supervisory Board" in
the Offering Circular/Prospectus.
7. The Offer is being made pursuant to an offer agreement dated as
of June 21, 1998 among Seagram, PolyGram and Philips (the "Offer
Agreement") which provides for, among other things, the making of the Offer
by Seagram. Any PolyGram shareholders who do not tender their PolyGram
Shares will remain shareholders of PolyGram following consummation of the
Offer until such time as Seagram acquires at least 95% of the issued
PolyGram Shares and the Enterprise Division of the Court of Appeals in
Amsterdam subsequently approves a compulsory acquisition (the "Compulsory
Acquisition") of the remaining minority PolyGram Shares pursuant to the
Dutch Civil Code. Those PolyGram shareholders who do not tender their
PolyGram Shares pursuant to the Offer are not entitled to receive
consideration for their PolyGram Shares from Seagram at any time subsequent
to the consummation of the Offer unless Seagram effects such Compulsory
Acquisition or otherwise agrees to acquire such holder's PolyGram Shares in
accordance with applicable law. See "The Offer -- Purpose of the Offer;
Plans for PolyGram" in the Offering Circular/Prospectus.
8. Following consummation of the Offer, Seagram intends to effect a
corporate reorganization of PolyGram and its subsidiaries which may
include, among other things, the transfer of subsidiaries from PolyGram to
affiliates of
2
<PAGE> 3
Seagram for fair market value and the distribution of substantially all the
proceeds received from such transfers as a dividend (a "Post-Closing
Dividend") to PolyGram shareholders. See "The Offer -- Purpose of the
Offer; Plans for PolyGram -- Post-Closing Restructuring; Post-Closing
Dividend." Receipt of a Post-Closing Dividend by non-tendering PolyGram
shareholders could have adverse tax consequences to such shareholders. See
"Certain Material Tax Consequences -- Tax Consequences of a Post-Closing
Dividend" in the Offering Circular/Prospectus.
9. The Offer and withdrawal rights expire at 3:00 p.m., Amsterdam
time (9:00 a.m., New York City time), on Friday, December 4, 1998, unless
the Offer is extended.
10. Tendering shareholders will not be obligated to pay brokerage
fees or commissions or, except as set forth in Instruction A.6 of the
Letter of Transmittal/Election Form, stock transfer taxes on the purchase
of PolyGram Shares pursuant to the Offer.
11. The Offer is conditioned upon, among other things, there being
validly tendered and not properly withdrawn pursuant to the Offer a number
of PolyGram Shares which, when added to any PolyGram Shares previously
acquired by Seagram, constitutes at least 95% of the issued share capital
of PolyGram as of the Expiration Date. The Offer is also subject to other
terms and conditions which PolyGram shareholders should carefully consider.
See "The Offer -- Certain Conditions of the Offer" in the Offering
Circular/Prospectus.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) PolyGram shareholders in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, Seagram may, in its sole discretion, take such action as
it may deem necessary to make the Offer in any such jurisdiction and extend the
Offer to PolyGram shareholders in such jurisdiction. In any jurisdiction where
the securities, blue sky or other laws require the Offer to be made on behalf of
Seagram by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of Seagram by Morgan Stanley & Co. Incorporated and Bear, Stearns & Co.
Inc., the Dealer Managers for the Offer, or one or more registered brokers or
dealers that are licensed under the laws of such jurisdiction.
If you wish to have us tender any or all of the PolyGram U.S. Registered
Shares held by us for your account, please instruct us by completing, executing
and returning to us the instruction form contained in this letter, including by
making an election as to whether you wish to receive Cash Consideration or Share
Consideration in exchange for each of your tendered PolyGram U.S. Registered
Shares, and, if you wish to receive cash payments pursuant to the Offer in Dutch
Guilders, by indicating such desire. If you authorize a tender of your U.S.
Registered PolyGram Shares, all such PolyGram U.S. Registered Shares will be
tendered unless otherwise specified in such instruction form. Your instructions
should be forwarded to us in ample time to permit us to submit a tender on your
behalf prior to the expiration of the Offer.
You have the right to specify (an "Election"), subject to the provisions
relating to fractional Seagram Shares described under "The Offer -- Offer
Consideration" in the Offering Circular/Prospectus and the limitations described
under "The Offer -- Limited Availability of Share Consideration" in the Offering
Circular/Prospectus, (i) the number of tendered PolyGram U.S. Registered Shares
with respect to which you wish to make a Share Election and (ii) the number of
tendered PolyGram U.S. Registered Shares that you wish to have exchanged for
Cash Consideration in the Offer (a "Cash Election").
Each tendered PolyGram U.S. Registered Share for which a valid Share
Election has been received will be exchanged for Share Consideration in the
Offer, subject to the limitations referred to above. Each tendered PolyGram U.S.
Registered Share for which a valid Cash Election has been received and each
tendered PolyGram U.S. Registered Share as to which a valid Election is not in
effect on the Expiration Date (a "Non-Electing Share") will be exchanged for
Cash Consideration in the Offer. ACCORDINGLY, IF YOU FAIL TO MAKE AN ELECTION
BELOW FOR ANY OF THE POLYGRAM U.S. REGISTERED SHARES THAT YOU INSTRUCT US TO
TENDER, YOU WILL RECEIVE CASH CONSIDERATION IN EXCHANGE FOR ALL SUCH POLYGRAM
U.S. REGISTERED SHARES THAT ARE ACCEPTED PURSUANT TO THE OFFER. If Seagram
determines that any Election is not properly made with respect to any tendered
PolyGram U.S. Registered Shares, such Election shall be deemed to be not in
effect, and the tendered PolyGram U.S. Registered Shares covered by such
Election shall, for purposes of the Offer, be deemed to be Non-Electing Shares.
SEE THE SECTION OF THE OFFERING CIRCULAR/PROSPECTUS ENTITLED "THE
OFFER -- ELECTION PROCEDURES" AND INSTRUCTIONS B.1 THROUGH B.4 OF THE LETTER OF
TRANSMITTAL/ELECTION FORM FOR A COMPLETE DESCRIPTION OF THE PROCEDURES FOR
MAKING AN ELECTION.
3
<PAGE> 4
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO ACQUIRE ALL ISSUED SHARES
OF
POLYGRAM N.V.
BY
THE SEAGRAM COMPANY LTD.
The undersigned acknowledge(s) receipt of your letter enclosing the
Offering Circular/Prospectus dated November 4, 1998 (the "Offering
Circular/Prospectus") and the related Letter of Transmittal/Election Form
pursuant to an offer by The Seagram Company Ltd., a corporation organized under
the laws of Canada, to acquire all issued shares, par value NLG 0.50 per share
("PolyGram Shares"), of PolyGram N.V., a corporation incorporated under the laws
of the Netherlands, not already owned by Seagram or its affiliates for, at the
election of each holder of PolyGram Shares, per share consideration of either
(i) 1.3772 common shares without nominal or par value ("Seagram Shares") of
Seagram (the "Share Consideration") or (ii) NLG 115, net to the seller in cash
without interest thereon (the "Cash Consideration"), upon the terms and subject
to the conditions set forth in the Offering Circular/Prospectus and in the
related Letter of Transmittal/Election Form.
This will instruct you (i) to tender the number of PolyGram Shares
indicated below (or, if no number is indicated below, all PolyGram Shares which
are held by you for the account of the undersigned), (ii) to elect to receive
Cash Consideration or Share Consideration for such tendered PolyGram Shares as
is indicated below (or, if no such election is indicated below, Cash
Consideration for all tendered PolyGram Shares) and (iii) to elect to receive
all cash payments pursuant to the Offer in Dutch Guilders (or, if no such
election is indicated below, to receive all such payments in U.S. Dollars), upon
the terms and subject to the conditions set forth in the Offering
Circular/Prospectus and in the related Letter of Transmittal/Election Form
furnished to the undersigned.
<TABLE>
<S> <C>
Total Number of PolyGram Shares SIGN HERE
to be tendered:*
____________ PolyGram Shares ----------------------------------------------------------
Number of tendered PolyGram Shares Signature(s)
as to which
Cash Consideration is elected: ----------------------------------------------------------
____________ PolyGram Shares Please Print Name(s)
Number of tendered PolyGram Shares
as to which ----------------------------------------------------------
Share Consideration is elected: Address
____________ PolyGram Shares
Dated , 199 ----------------------------------------------------------
Area Code and Telephone Number
----------------------------------------------------------
Tax, Identification or
Social Security Number
</TABLE>
- ---------------
* Unless otherwise indicated, it will be assumed that all of your PolyGram
Shares held by us for your account are to be tendered.
CURRENCY ELECTION
(SEE INSTRUCTION A.8 OF THE LETTER OF TRANSMITTAL/ELECTION FORM)
[ ] PAYMENT IN DUTCH GUILDERS. Check this box if you wish to receive cash
payments pursuant to the Offer in Dutch guilders instead of U.S. Dollars.
MAKE NO MARK IN THIS BOX IF YOU WISH TO RECEIVE CASH PAYMENTS PURSUANT TO
THE OFFER IN U.S. DOLLARS. PolyGram shareholders who tender PolyGram Shares
by book-entry transfer and wish to receive cash payments pursuant to the
Offer in Dutch Guilders instead of U.S. Dollars must also (i) provide the
U.S. Exchange Agent with (A) wire instructions for an account in the
Netherlands to which such payment may be made or (B) an address to which a
check for such payment may be mailed and (ii) submit to the U.S. Exchange
Agent a copy of the Agent's Message (as defined in the Offering
Circular/Prospectus) used to tender such shareholder's PolyGram Shares. In
the event that any such wire instructions are invalid or incomplete, such
payments will be made in Dutch Guilders by check. Holders of PolyGram Shares
who elect to receive cash payments pursuant to the Offer in Dutch Guilders
and who do not tender such shares by book-entry transfer must have their
signature on the Letter of Transmittal/Election Form guaranteed by an
Eligible Institution (as defined in the Letter of Transmittal/Election
Form). See Instruction A.1 of the Letter of Transmittal/Election Form.
---------------------------------------------
---------------------------------------------
---------------------------------------------
(POLYGRAM SHAREHOLDERS WHO TENDER POLYGRAM
SHARES BY BOOK-ENTRY TRANSFER WHO
WISH TO HAVE CASH PAYMENTS PURSUANT TO THE
OFFER MADE IN DUTCH GUILDERS INSTEAD
OF U.S. DOLLARS SHOULD PROVIDE WIRE
INSTRUCTIONS OR AN ADDRESS HERE)
<PAGE> 1
Exhibit 11(a)(7)
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>
<CAPTION>
- ---------------------------------------------------------------
GIVE THE TAXPAYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
- ---------------------------------------------------------------
<C> <S> <C>
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, the
first individual on
the account(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The
trust account (grantor is also grantor -- trustee(1)
trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust under
State law
5. Sole proprietorship account The owner(4)
6. A valid trust, estate or pension The legal entity (Do
trust not furnish the
identifying number of
the personal
representative or
trustee unless the
legal entity itself is
not designated in the
account title.)(5)
- ---------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------
GIVE THE TAXPAYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
- ---------------------------------------------------------------
<C> <S> <C>
7. Corporate account The corporation
8. Religious, charitable, or The organization
educational organization account
9. Partnership account held in the The partnership
name of the business
10. Association, club, or other The organization
tax-exempt organization
11. A broker or registered nominee The broker or nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State or
local government, school district,
or prison) that receives
agricultural program payments
- ---------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
(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 your individual name. You may also enter your business name. You may
use either your social security number or your 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.
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency, or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S.
or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under Code section 584(a).
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
- An exempt charitable remainder trust or a non-exempt trust described in
Code section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of
1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under Code section
1441.
- Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
- Code Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends
under Code section 852).
- Payments described in Code section 6049(b)(5) of nonresident aliens.
- Payments on tax-free covenant bonds under Code section 1451.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER. WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE
FORM AND RETURN IT TO THE PAYER. IF YOU ARE A NONRESIDENT ALIEN OR A FOREIGN
ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED INTERNAL
REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend,
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 a tax return. Payers must generally 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 a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. -- If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income such failure will be treated as being due to
negligence and will be subject to a penalty of 20% on any portion of any
underpayment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) 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.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE> 1
Exhibit 11(a)(8)
This announcement is neither an offer to exchange nor a solicitation of an offer
to exchange any securities. The Offer is being made solely by the Offering
Circular/Prospectus dated November 4, 1998 and the related Letter of
Transmittal/Election Form or Application Form/Deed of Transfer, as applicable,
and is being made to all holders of shares of PolyGram N.V. The Offer is not
being made to (nor will tenders be accepted from or on behalf of) holders of
securities in any jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, The Seagram Company Ltd. may, in its sole discretion,
take such action as it may deem necessary to make the Offer in any such
jurisdiction and extend the Offer to holders of PolyGram Shares in such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made on behalf of The Seagram Company Ltd. by a licensed
broker or dealer, the Offer shall be deemed to be made on behalf of The Seagram
Company Ltd. by Morgan Stanley & Co. Incorporated and Bear, Stearns & Co. Inc.
or one or more registered brokers or dealers that are licensed under the laws of
such jurisdiction.
NOTICE OF EXCHANGE OFFER FOR
ALL ISSUED SHARES
OF
POLYGRAM N.V.
FOR
NLG 115 IN CASH OR 1.3772 COMMON SHARES OF THE SEAGRAM COMPANY LTD.
The Seagram Company Ltd., a corporation organized under the laws of Canada
("Seagram"), is offering, upon the terms and subject to the conditions set forth
in the Offering Circular/Prospectus dated November 4, 1998 (the "Offering
Circular/Prospectus") and in the related Letter of Transmittal/Election Form or
Application Form/Deed of Transfer, as applicable (collectively, the "Offer"), to
acquire all issued shares, par value NLG 0.50 per share ("PolyGram Shares"), of
PolyGram N.V., a corporation incorporated under the laws of the Netherlands
("PolyGram"), not already owned by Seagram or its affiliates for, at the
election of each holder of PolyGram Shares, per share consideration of either
(i) 1.3772 common shares without nominal or par value ("Seagram Shares") of
Seagram (the "Share Consideration") or (ii) NLG 115, net to the seller in cash
(the "Cash Consideration" and, together with the Share Consideration, the "Offer
Consideration"); provided, that Share Consideration shall be paid in respect of
34,783,758 PolyGram Shares and Cash Consideration shall be paid in respect of
all other tendered PolyGram Shares. Holders of PolyGram U.S. Registered Shares
(as defined below) will receive all cash payments pursuant to the Offer in U.S.
Dollars unless the holder elects to receive all such payments in Dutch Guilders.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 3:00 P.M., AMSTERDAM TIME (9:00 A.M.,
NEW YORK CITY TIME), ON FRIDAY, DECEMBER 4, 1998, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT PROPERLY WITHDRAWN PURSUANT TO THE OFFER A NUMBER OF POLYGRAM SHARES
WHICH, WHEN ADDED TO ANY POLYGRAM SHARES PREVIOUSLY ACQUIRED BY SEAGRAM,
CONSTITUTES AT LEAST 95% OF THE ISSUED SHARE CAPITAL OF POLYGRAM AS OF THE
EXPIRATION DATE (THE "MINIMUM CONDITION"). As of the date of the Offering
Circular/Prospectus, Seagram does not own any PolyGram Shares. The Offer is also
subject to other terms and conditions (together with the Minimum Condition, the
"Offer Conditions") described in the Offering Circular/Prospectus, which
PolyGram shareholders should carefully consider. The term "Expiration Date"
means 3:00 p.m., Amsterdam time (9:00 a.m., New York City time), on Friday,
December 4, 1998 unless and until Seagram shall have extended the period of time
during which the Offer is open in accordance with the Offer Agreement referred
to below, in which event the "Expiration Date" shall mean the latest time and
date at which the Offer, as so extended, shall expire.
-1-
<PAGE> 2
The Offer is being made pursuant to an offer agreement dated as of June 21, 1998
(the "Offer Agreement") among Seagram, PolyGram and Koninklijke Philips
Electronics N.V., a corporation incorporated under the laws of the Netherlands
("Philips") and the beneficial owner of 135,000,000, or 75%, of the 180,000,000
issued PolyGram Shares as of the date of the Offering Circular/Prospectus. Any
PolyGram shareholders who do not tender their PolyGram Shares will remain
shareholders of PolyGram following consummation of the Offer until such time as
Seagram acquires at least 95% of the issued PolyGram Shares and the Enterprise
Division of the Court of Appeals in Amsterdam subsequently approves a compulsory
acquisition (the "Compulsory Acquisition") of the remaining minority PolyGram
Shares pursuant to the Dutch Civil Code. Those PolyGram shareholders who do not
tender their PolyGram Shares pursuant to the Offer are not entitled to receive
consideration for their PolyGram Shares from Seagram at any time subsequent to
the consummation of the Offer unless Seagram effects the Compulsory Acquisition
or otherwise agrees to acquire such holder's PolyGram Shares in accordance with
applicable law. Following consummation of the Offer, Seagram intends to effect a
corporate reorganization of PolyGram and its subsidiaries which may include,
among other things, the transfer of subsidiaries from PolyGram to affiliates of
Seagram for fair market value and the distribution of substantially all the
proceeds received from such transfers as a dividend (a "Post-Closing Dividend")
to PolyGram shareholders. Receipt of a Post-Closing Dividend by non-tendering
PolyGram shareholders could have adverse tax consequences to such shareholders.
The Offer Agreement is more fully described in the Offering Circular/Prospectus.
Seagram and Philips have entered into (i) a tender agreement dated as of June
21, 1998 pursuant to which Philips has agreed, among other things, for so long
as the Offer Agreement is in effect, to validly tender pursuant to and in
accordance with the terms of the Offer and not withdraw such tender of all of
its PolyGram Shares and to elect to receive Share Consideration in respect of
all of its PolyGram Shares, (ii) a voting agreement dated as of June 21, 1998
relating to the voting of such PolyGram Shares prior to consummation of the
Offer and (iii) a stockholders agreement dated as of June 21, 1998 pursuant to
which Seagram and Philips have agreed to certain arrangements relating to
Philips' ownership of Seagram Shares following consummation of the Offer. In
addition, to the extent fully permitted by law, PolyGram has agreed to validly
tender pursuant to the Offer and not withdraw such tender of all of the PolyGram
Shares held in treasury as of the Expiration Date (1,645,526, or approximately
0.9%, of the issued PolyGram Shares as of September 30, 1998) and to elect to
receive Cash Consideration in respect of all such PolyGram Shares.
-2-
<PAGE> 3
EACH OF THE POLYGRAM BOARD OF MANAGEMENT, BY UNANIMOUS VOTE, AND THE POLYGRAM
SUPERVISORY BOARD, BY AFFIRMATIVE VOTE OF ALL DIRECTORS (OTHER THAN TWO
DESIGNEES OF PHILIPS, WHO ABSTAINED), HAS DETERMINED THAT THE OFFER IS IN THE
BEST INTERESTS OF POLYGRAM AND IS FAIR TO THE POLYGRAM SHAREHOLDERS, HAS
APPROVED THE OFFER AGREEMENT AND RECOMMENDS THAT POLYGRAM SHAREHOLDERS TENDER
THEIR POLYGRAM SHARES IN THE OFFER.
For purposes of the Offer, Seagram will be deemed to have accepted PolyGram
Shares properly tendered and for which the tender has not been not properly
withdrawn ("Tendered Shares") as, if and when Seagram gives oral or written
notice to MeesPierson N.V. (the "Dutch Exchange Agent") and Citibank, N.A. (the
"U.S. Exchange Agent" and, together with the Dutch Exchange Agent, the "Exchange
Agents") of Seagram's acceptance of such Tendered Shares pursuant to 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 such extension or
amendment), Seagram will accept pursuant to the Offer, and will pay Cash
Consideration or issue Share Consideration for, all Tendered Shares promptly
after the Expiration Date. Under no circumstances will interest be paid pursuant
to the Offer, regardless of any delay in making any payment. Payment for
tendered PolyGram U.S. Registered Shares accepted pursuant to the Offer will be
made only after timely receipt by the U.S. Exchange Agent of (i) share
certificates for tendered PolyGram U.S. Registered Shares, or timely
confirmation of a book-entry transfer of such Tendered Shares into the U.S.
Exchange Agent's account at The Depository Trust Company (the "Book-Entry
Transfer Facility") pursuant to the procedures set forth under "The
Offer--Procedure for Tendering PolyGram Shares--For Holders of PolyGram U.S.
Registered Shares--Book-Entry Transfer" in the Offering Circular/Prospectus,
(ii) the Letter of Transmittal/Election Form, properly completed and duly
executed, together with any required signature guarantees, or an Agent's Message
(as defined in the Offering Circular/Prospectus) in connection with a book-entry
transfer, and (iii) any other documents required by the Letter of
Transmittal/Election Form. The term "PolyGram U.S. Registered Shares" means
PolyGram Shares held in certificated form and registered in PolyGram's
shareholders' registry in New York City, for which Citibank, N.A. serves as the
transfer agent and registrar (the "New York Registry"). Payment for tendered
PolyGram Shares which are not PolyGram U.S. Registered Shares ("Dutch PolyGram
Shares") accepted pursuant to the Offer will be made only after timely receipt
by the Dutch Exchange Agent of the documents described under "The
Offer--Procedure for Tendering PolyGram Shares--For Holders of Dutch PolyGram
Shares" in the Offering Circular/Prospectus.
To the maximum extent permitted by Dutch Law (as defined in the Offering
Circular/Prospectus), Seagram expressly reserves the right (but shall not be
obligated), in its sole discretion, to waive any of the Offer Conditions (except
as described in the last sentence of this paragraph) and make any changes, to
the extent permitted by the Offer Agreement, Dutch Law and other applicable law,
to the terms and conditions of the Offer (or extend the Offer beyond a scheduled
Expiration Date if any of the Offer Conditions is not satisfied) by giving oral
or written notice of such waiver, amendment or extension to the Exchange Agents.
Notwithstanding the foregoing, (i) Seagram may not make any change to any of the
Offer Conditions unless Seagram terminates the Offer and commences a new offer,
if so required by Dutch Law, and (ii) unless previously approved by PolyGram and
Philips in writing, Seagram may not make any change to the terms and conditions
of the Offer that increases the Minimum Condition, decreases the price per share
payable in the Offer, changes the form of consideration payable in the Offer
(other than by adding consideration), reduces the maximum number of PolyGram
Shares to be purchased in the Offer, or amends the terms of the Offer or the
Offer Conditions or imposes additional conditions or terms to the Offer which
are adverse to PolyGram shareholders or make the likelihood of the Offer
succeeding more remote in any material respect. Moreover, Seagram has agreed in
the Offer Agreement that, in the event that the Offer Agreement is terminated,
(i) Seagram will not be entitled to waive the Minimum Condition without the
prior written consent of Philips and PolyGram and (ii) unless PolyGram otherwise
agrees, Philips will not tender its PolyGram Shares in the Offer and Philips
will withdraw the tender of any of its PolyGram Shares previously tendered in
the Offer.
Subject to the provisions of the Offer Agreement (including those described in
the next paragraph), if by the Expiration Date any or all of the Offer
Conditions have not been satisfied, Seagram reserves the right (but shall not be
obligated) to (i) terminate the Offer and return all Tendered Shares to
tendering PolyGram shareholders, (ii) waive all of the Offer Conditions not
satisfied and, subject to complying with applicable rules and regulations of the
United States Securities and Exchange Commission and Dutch Law, accept all
Tendered Shares, (iii) extend the Offer and, subject to the terms of the Offer
(including the rights of PolyGram shareholders to withdraw their Tendered Shares
as described under "The Offer--Withdrawal Rights" in the Offering
Circular/Prospectus), retain the Tendered Shares until the termination of the
Offer, as extended, or (iv) amend the Offer, subject to the restrictions
described in the immediately preceding paragraph and to applicable law
(including Dutch Law).
Notwithstanding the foregoing, pursuant to the Offer Agreement, Seagram has
agreed that, if it is unable to consummate the Offer at the then-current
Expiration Date due to the failure of any of the Offer Conditions to be
satisfied or waived, it will, unless the Offer Agreement is terminated in
accordance with its terms, extend the Offer and set a subsequent scheduled
Expiration Date, and will continue to so extend the Offer and set subsequent
scheduled Expiration Dates, until the later of December 31, 1998 and 60 days
following the satisfaction or waiver of certain conditions described in the
Offering Circular/Prospectus (the "Termination Date") (provided that under no
circumstances is Seagram required to extend the Offer past June 21, 1999). In
the event that the Offer is extended, each subsequent scheduled Expiration Date
will be not later than the earliest of (i) 20 business days following the
previous scheduled Expiration Date, (ii) the date on which Seagram reasonably
believes that all Offer Conditions (other than the Minimum Condition) will be
satisfied or waived and (iii) the Termination Date. During any extension of the
Offer, PolyGram Shares tendered prior to such extension will continue to be
Tendered Shares, subject to the rights of a tendering PolyGram shareholder to
withdraw such holder's Tendered Shares. Any extension, amendment or termination
of the Offer will be followed as promptly as practicable, but in any event in
accordance with applicable law, by public announcement thereof. In the case of
an extension, Rule 14e-1(d) under the U.S. Securities Exchange Act of 1934, as
amended (the "U.S. Exchange Act"), requires that the announcement be issued no
later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date. Any announcement will also comply with the
Listing and Issuing Rules of Amsterdam Exchanges N.V. and the SER-Besluit
Fusiegedragsregels 1975 (the "Dutch Merger Code").
Pursuant to the Offer Agreement, Seagram may, at any time, transfer or assign to
one or more subsidiaries of Seagram (organized or incorporated under the laws of
Canada, the United States, the Netherlands or any other jurisdiction, provided
that such other jurisdiction would not impose a withholding tax on the payment
of the Offer Consideration) the right to purchase all or any portion of the
Tendered Shares, but any such transfer or assignment will not relieve Seagram of
its obligations under the Offer or prejudice the rights of tendering PolyGram
shareholders to receive payment for the Tendered Shares which are accepted
pursuant to the Offer.
Tenders of PolyGram Shares made pursuant to the Offer are irrevocable, except
that tenders of PolyGram Shares pursuant to the Offer may be withdrawn at any
time on or prior to the Expiration Date and, unless theretofore accepted by
Seagram pursuant to the Offer, may also be withdrawn at any time after January
2, 1999 (or such later date as may apply in case the Offer is extended), in each
case to the fullest extent permitted by the U.S. Exchange Act and the rules and
regulations promulgated thereunder and applicable Dutch Law and according to the
procedures described in the Offering Circular/Prospectus. For a withdrawal of a
tender of PolyGram U.S. Registered Shares to be effective, a written or telex
transmission notice of withdrawal must be timely received by the U.S. Exchange
Agent at one of its addresses set forth on the back cover of the Offering
Circular/Prospectus. Any notice of withdrawal must specify the name of the
person who tendered the PolyGram U.S. Registered Shares for which the tender is
to be withdrawn, the number of PolyGram U.S. Registered Shares for which the
tender is to be withdrawn and the name of the registered holder, if different
from that of the person who tendered such shares. If share certificates for
PolyGram U.S. Registered Shares for which the tender is to be withdrawn have
been delivered or otherwise identified to the U.S. Exchange Agent, then, prior
to the physical release of such certificates, the serial numbers shown on such
certificates must be submitted to the U.S. Exchange Agent and the signature(s)
on the notice of withdrawal must be guaranteed by an Eligible Institution (as
defined in the Offering Circular/Prospectus) unless such PolyGram U.S.
Registered Shares have been tendered for the account of an Eligible Institution.
If PolyGram U.S. Registered Shares have been tendered pursuant to the procedure
for book-entry transfer as described under "The Offer--Procedure for Tendering
PolyGram Shares--For Holders of PolyGram U.S. Registered Shares--Book-Entry
Transfer" in the Offering Circular/Prospectus, any notice of withdrawal must
specify the name and number of the account at the Book-Entry Transfer Facility
to be credited with the PolyGram U.S. Registered Shares for which the tender is
to be withdrawn, in which case a notice of withdrawal will be effective if
delivered to the U.S. Exchange Agent by any method of delivery described in the
second sentence of this paragraph. For the procedures for the withdrawal of a
tender of Dutch PolyGram Shares, reference is made to the section of the
Offering Circular/Prospectus entitled "The Offer--Withdrawal Rights." All
questions as to the form and validity (including time of receipt) of any notice
of withdrawal will be determined by Seagram, in its sole discretion, whose
determination will be final and binding. Any PolyGram Shares for which the
tender has been properly withdrawn will thereafter be deemed not to have been
validly tendered for purposes of the Offer. However, PolyGram Shares for which
the tender has been withdrawn may be re-tendered at any time prior to the
Expiration Date by following the procedures described under "The
Offer--Procedure for Tendering PolyGram Shares" in the Offering
Circular/Prospectus.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the General
Rules and Regulations under the U.S. Exchange Act is contained in the Offering
Circular/Prospectus and is incorporated herein by reference.
The Offering Circular/Prospectus and the related Letter of Transmittal/Election
Form and, if required, other relevant materials will be mailed to record holders
of PolyGram U.S. Registered Shares whose names appear on the New York Registry
and will be furnished to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the New
York Registry or who are listed as participants in the Book-Entry Transfer
Facility's security position listing for subsequent transmittal to beneficial
owners of PolyGram U.S. Registered Shares. Copies of the offering documents will
also be made available in the Netherlands in accordance with applicable Dutch
rules and regulations.
THE OFFERING CIRCULAR/PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL/ELECTION
FORM (FOR HOLDERS OF POLYGRAM U.S. REGISTERED SHARES) OR THE RELATED APPLICATION
FORM/DEED OF TRANSFER (FOR HOLDERS OF DUTCH POLYGRAM SHARES) CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BY HOLDERS OF POLYGRAM SHARES BEFORE
ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
-3-
<PAGE> 4
Questions and requests for copies of the Offering Circular/Prospectus and the
related Letter of Transmittal/Election Form or the related Application Form/Deed
of Transfer and all other tender offer materials may be directed to the
Information Agent or the Dealer Managers as set forth below, and copies will be
furnished promptly at Seagram's expense. Except as set forth in the section of
the Offering Circular/Prospectus entitled "The Offer--Fees and Expenses of the
Offer," Seagram will not pay any fees or commissions to any broker or dealer or
any other person for soliciting tenders of PolyGram Shares pursuant to the
Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212) 269-5550
All Others Call Toll Free (800) 714-3311
The Dealer Managers for the Offer are:
MORGAN STANLEY DEAN WITTER
United States
1585 Broadway
New York, New York 10036
(800) 761-8950, Ext. 17938
Europe
Canary Wharf
25 Cabot Square
London E14 4QA
1-71-425-5082
and
BEAR, STEARNS & CO. INC.
United States
245 Park Avenue
New York, New York 10167
(877) 316-0172
Europe
Bear, Stearns International Limited
One Canada Square
London E14 5AD England
1-71-516-6936
November 4, 1998
-4-
<PAGE> 1
[SEAGRAM LOGO] Exhibit 11(a)(9)
News Release
- --------------------------------------------------------------------------------
For Release: Contact: MEDIA RELATIONS:
Ray Boyce
212/572-7172
INVESTOR RELATIONS:
Joseph Fitzgerald
212/572-7282
SEAGRAM COMMENCES OFFER FOR POLYGRAM
-------------------------------------------------------------
MONTREAL, November 4, 1998 -- The Seagram Company Ltd. (NYSE:VO) announced
today that it has commenced its previously announced offer for all issued
shares of PolyGram N.V. In the offer, each PolyGram shareholder may elect to
receive for each PolyGram share NLG 115 in cash (approximately US $61.46 based
on the Noon Buying Rate of the New York Federal Reserve Bank on November 3,
1998) or Seagram shares based on an exchange ratio of 1.3772 Seagram shares for
each PolyGram share. Approximately 47.9 million Seagram common shares
(approximately 12 percent of the outstanding shares after the transaction) will
be issued in the offer.
On June 21, 1998, Seagram, Royal Philips Electronics and PolyGram entered into
definitive agreements with respect to the acquisition of PolyGram by Seagram.
Philips has agreed to tender all of its PolyGram shares (75 percent of the
issued PolyGram shares) into the offer, acquire as many Seagram shares as may
be available to it in the offer (taking into account the election by the public
shareholders), and, subject to certain exceptions, hold its Seagram shares for
no less than two years.
The offer is subject to several customary conditions, including that 95 percent
of PolyGram's issued share capital be tendered and the absence of defined
materially adverse changes or events.
The offer and withdrawal rights will expire at 3:00 p.m., Amsterdam time (9:00
a.m., New York City time), on Friday, December 4, 1998, unless extended.
Morgan Stanley Dean Witter and Bear, Stearns & Co. Inc. are the dealer managers
for the offer and D.F. King & Co., Inc. is the information agent.
-more-
Seagram Corporate Communications
375 Park Avenue, New York, NY 10152
212.572.7000
<PAGE> 2
-2-
This announcement is neither an offer to exchange nor a solicitation of an offer
to exchange any securities. The offer is being made solely by the Offering
Circular/Prospectus dated November 4, 1998 and the related Application Form/Deed
of Transfer or Letter of Transmittal/Election Form, as applicable. The offer is
not being made to (nor will tenders be accepted from or on behalf of) holders of
PolyGram shares in any jurisdiction in which making of the offer or the
acceptance thereof would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the offer to be made on behalf of Seagram by a licensed broker or
dealer, the offer shall be deemed to be made on behalf of Seagram by the dealer
managers or one or more registered brokers or dealers that are licensed under
the laws of such jurisdiction.
The Seagram Company Ltd. operates in two global business segments: spirits and
wines; and entertainment. The spirits and wine businesses are engaged
principally in the production and marketing of distilled spirits, wines,
coolers, beers and mixers throughout more than 190 countries and territories.
The entertainment company, Universal Studios, Inc., produces and distributes
motion picture, television and home video products, and recorded music; and
operates theme parks and retail stores. Headquartered in Montreal, Seagram
employs 25,000 people worldwide. The Company's corporate website is located at
www.seagram.com.
<PAGE> 1
Exhibit 11(a)(10)
NOTICE TO SHAREHOLDERS OF
POLYGRAM N.V.
The undersigned gives notice that copies of an Offering Circular/Prospectus
dated November 4, 1998 concerning the proposed Exchange Offer for all
outstanding Shares of PolyGram N.V. by The Seagram Company Ltd., for cash
or -- with certain limitations -- for Common Shares of The Seagram Company Ltd.,
are available as of November 5, 1998 at:
MeesPierson N.V., Rokin 55, 1012 KK Amsterdam (tel: +31 20 527 2467, fax:
+31 20 527 1928)
The Offer and Withdrawal Rights expire at 3:00 p.m., Amsterdam time (9:00
a.m., New York City time), on December 4, 1998, unless the Offer is extended.
Admitted institutions of the AEX Stock Exchange will receive a commission
in the amount of NLG 0.12 per Share tendered and accepted pursuant to the Offer.
Montreal, Canada, November 4, 1998
THE SEAGRAM COMPANY LTD.
The Seagram Company, Ltd.
1430 Peel Street
Montreal, Quebec
Canada H3A 1S9
2
