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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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BEST POWER TECHNOLOGY, INCORPORATED
(Name of Subject Company)
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GENERAL SIGNAL CORPORATION
G.S. NEWCO, INC.
(Bidder)
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COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
086548104
(CUSIP Number of Class of Securities)
EDGAR J. SMITH, JR., ESQ.
VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
GENERAL SIGNAL CORPORATION
ONE HIGH RIDGE PARK
P.O. BOX 10010
STAMFORD, CONNECTICUT 06904
(203) 329-4100
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidder)
COPY TO:
W. LESLIE DUFFY, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005
(212) 701-3000
MAY 10, 1995
(Date of Event Which Requires
Filing Statement on Schedule 13D)
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* $196,431,102 AMOUNT OF FILING FEE** $39,386.22
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* For purposes of calculating the filing fee only. This calculation assumes the
purchase of 9,353,862 shares of Common Stock of the Subject Company at $21.00
net per share in cash. Such number of shares represents all outstanding
shares as of May 10, 1995 (excluding shares owned by the Bidders), and
assumes the exercise of all outstanding stock options.
** Includes a Schedule 13D filing fee of $100.
/ / 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 date of its filing.
Amount Previously Paid: Not Applicable Filing Party: Not Applicable
Form of Registration No.: Not Applicable Date Filed: Not Applicable
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(Page 1 of Pages)
Exhibit Index begins on Page
<PAGE>
CUSIP NO. 086548104
1. Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
General Signal Corporation I.R.S. No. 16-0445660
2. Check the Appropriate Box if a Member of Group
(See Instructions) (a) / /
(b) / /
3. SEC Use Only
4. Sources of Funds (See Instructions)
WC, OO
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f) / /
6. Citizenship or Place of Organization
New York
7. Aggregate Amount Beneficially Owned by Each Reporting Person
2,318,816*
8. Check if the Aggregate Amount in Row (7) Excludes Certain Shares
(See Instructions) / /
9. Percent of Class Represented by Amount in Row (7)
Approximately 24.0% of the shares of such class outstanding as of
May 10, 1995, on a fully diluted basis.
10. Type of Reporting Person (See Instructions)
CO
(Page 2 of Pages)
<PAGE>
CUSIP NO. 086548104
1. Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
G.S. Newco, Inc. I.R.S. No. (pending)
2. Check the Appropriate Box if a Member of Group
(See Instructions) (a) / /
(b) / /
3. SEC Use Only
4. Sources of Funds (See Instructions)
WC, OO
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f) / /
6. Citizenship or Place of Organization
Delaware
7. Aggregate Amount Beneficially Owned by Each Reporting Person
2,318,816*
8. Check if the Aggregate Amount in Row (7) Excludes Certain Shares
(See Instructions) / /
9. Percent of Class Represented by Amount in Row (7)
Approximately 24.0% of the shares of such class outstanding as of
May 10, 1995, on a fully diluted basis.
10. Type of Reporting Person (See Instructions)
CO
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* On May 10, 1995, G.S. Newco, Inc. (the "Purchaser") and General Signal
Corporation ("Parent") entered into letter agreements (the "Stock Tender
Agreements") with Roland D. Pampel, Marguerite M. Paul and Steve J. Paul (each
a "Seller Stockholder" and, collectively, the "Seller Stockholders") pursuant
to which, upon the terms set forth therein, each Seller Stockholder has agreed
to tender, in accordance with the terms of the tender offer described in this
statement (the "Offer"), all of the shares of common stock, par value $.01 per
share (the "Shares"), of Best Power Technology, Incorporated (the "Company"),
owned (beneficially or of record) by such Seller Stockholder. Further, each
Seller Stockholder has agreed not to withdraw such tendered Shares unless the
Offer is extended beyond December 31, 1995, or unless the Agreement and Plan
of Merger, dated as of May 10, 1995, among Parent, the Purchaser and the
Company (the "Merger Agreement") is terminated. As of May 10, 1995, the Seller
Stockholders owned (either beneficially or of record, excluding Shares
issuable upon the exercise of stock options currently outstanding) 2,015,816
Shares, which are reflected in Rows 7 and 9 in each of the tables above. The
Stock Tender Agreements and the Merger Agreement are described more fully in
Section 10 ("Purpose of the Offer and the Merger; Merger Agreement; Stock
Tender Agreements") of the Offer to Purchase dated May 16, 1995.
(Page 3 of Pages)
<PAGE>
This Schedule 14D-1 relates to the offer by G.S. Newco, Inc., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of General Signal
Corporation, a New York corporation ("Parent"), to purchase all of the
outstanding shares of common stock, par value $.01 per share (the "Shares"), of
Best Power Technology, Incorporated, a Delaware corporation (the "Company"), at
a purchase price of $21.00 per share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer to Purchase dated May 16,
1995 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"), which are annexed to and filed with this Schedule 14D-1 as Exhibits
(a)(1) and (a)(2). This Tender Offer Statement on Schedule 14D-1 also
constitutes a Statement on Schedule 13D with respect to the acquisition by the
Purchaser and Parent of beneficial ownership of certain shares of the Company.
The item numbers and responses thereto below are in accordance with the
requirements of Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Best Power Technology, Incorporated.
The address of its principal executive offices is P.O. Box 280, Route 80,
Necedah, Wisconsin 54646-9899.
(b) The equity securities to which this Schedule 14D-1 relates are the
Shares. Reference is hereby made to the information set forth in the
"Introduction" and Section 1 ("Terms of the Offer") of the Offer to Purchase,
which is incorporated herein by reference.
(c) Reference is hereby made to the information set forth in Section 6
("Price Range of the Shares; Dividends") of the Offer to Purchase, which is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) - (d) Reference is hereby made to the information set forth in the
"Introduction," Section 8 ("Certain Information Concerning the Purchaser and
Parent") and Schedule I ("Directors and Executive Officers of Parent and the
Purchaser") to the Offer to Purchase, which is incorporated herein by reference.
(e) - (f) During the last five years, neither Parent nor the Purchaser, nor,
to the best of their knowledge, any of their respective executive officers and
directors listed in Schedule I ("Directors and Executive Officers of Parent and
the Purchaser") of the Offer to Purchase has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or was a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, federal or state securities laws or finding any violation
of such laws.
(g) Reference is hereby made to the information set forth in Schedule I
("Directors and Executive Officers of Parent and the Purchaser") to the Offer to
Purchase, which is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE
SUBJECT COMPANY.
(a) - (b) Reference is hereby made to the information set forth in the
"Introduction," Section 8 ("Certain Information Concerning the Purchaser and
Parent"), Section 9 ("Background of the Offer; Contacts with the Company;
Confidentiality Agreement; Severence Arrangements") and Section 10 ("Purpose of
the Offer and the Merger; Merger Agreement; Stock Tender Agreements; Appraisal
Rights and Other Matters; Plans for the Company") of the Offer to Purchase,
which is incorporated herein by reference.
(Page 4 of Pages)
<PAGE>
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) - (b) Reference is hereby made to the information set forth in Section
11 ("Source and Amount of Funds") of the Offer to Purchase, which is
incorporated hereby in reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSAL OF
THE BIDDER.
(a) - (g) Reference is hereby made to the information set forth in the
"Introduction," Section 9 ("Background of the Offer; Contacts with the Company;
Confidentiality Agreement; Severence Arrangements"), Section 10 ("Purpose of the
Offer and the Merger; Merger Agreement; Stock Tender Agreements; Appraisal
Rights and Other Matters; Plans for the Company"), Section 12 ("Possible Effects
of the Offer on the Market for the Shares; NASDAQ/NMS Quotation; Exchange Act
Registration; Margin Regulations") and Section 13 ("Dividends and
Distributions") of the Offer to Purchase, which is incorporated herein by
reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) - (b) Reference is hereby made to the information set forth in (i) the
"Introduction," Section 8 ("Certain Information Concerning the Purchaser and
Parent"), Section 9 ("Background of the Offer; Contacts with the Company;
Confidentiality Agreement; Severence Arrangements"), Section 10 ("Purpose of the
Offer and the Merger; Merger Agreement; Stock Tender Agreements; Appraisal
Rights and Other Matters; Plans for the Company") and Schedule I ("Directors and
Executive Officers of Parent and the Purchaser") of the Offer to Purchase, (ii)
the Merger Agreement and (iii) the Stock Tender Agreements, each of which is
incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
Reference is hereby made to the information set forth in (i) the
"Introduction," Section 8 ("Certain Information Concerning the Purchaser and
Parent"), Section 9 ("Background of the Offer; Contacts with the Company;
Confidentiality Agreement; Severence Arrangements") and Section 10 ("Purpose of
the Offer and the Merger; Merger Agreement; Stock Tender Agreements; Appraisal
Rights and Other Matters; Plans for the Company") of the Offer to Purchase, (ii)
the Merger Agreement and (iii) the Stock Tender Agreements, each of which is
incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Reference is hereby made to the information set forth in Section 16
("Certain Fees and Expenses") of the Offer to Purchase, which is incorporated
herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Reference is hereby made to the information set forth in Section 8 ("Certain
Information Concerning the Purchaser and Parent") of the Offer to Purchase, and
the consolidated financial statements of Parent in Parent's Annual Report on
Form 10-K for the year ended December 31, 1994, and Quarterly Report on Form
10-Q for the quarter ended March 31, 1995, which is incorporated herein by
reference.
(Page 5 of Pages)
<PAGE>
ITEM 10. ADDITIONAL INFORMATION.
(a) Reference is hereby made to the information set forth in Section 10
("Purpose of the Offer and the Merger; Merger Agreement; Stock Tender
Agreements; Appraisal Rights and Other Matters; Plans for the Company") of the
Offer to Purchase, which is incorporated herein by reference.
(b) - (c) Reference is hereby made to the information set forth in Section
15 ("Certain Legal Matters; Required Regulatory Approvals") of the Offer to
Purchase, which is incorporated herein by reference.
(d) Reference is hereby made to the information set forth in Section 12
("Possible Effects of the Offer on the Market for the Shares; NASDAQ/NMS
Quotation; Exchange Act Registration; Margin Regulations") and Section 15
("Certain Legal Matters; Required Regulatory Approvals") of the Offer to
Purchase, which is incorporated hereby by reference.
(e) To the best knowledge of Parent and the Purchaser, no such proceedings
are pending or have been instituted.
(f) Reference is hereby made to the entire text of the Offer to Purchase and
the related Letter of Transmittal, which is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) --Offer to Purchase, dated May 16, 1995.
(a)(2) --Letter of Transmittal.
(a)(3) --Notice of Guaranteed Delivery.
(a)(4) --Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(5) --Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(6) --Guidelines of the Internal Revenue Service for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(a)(7) --Text of press release issued by Parent on May 10, 1995.
(a)(8) --Text of press release issued by Parent on May 16, 1995.
(a)(9) --Form of Summary Advertisement, dated May 16, 1995.
(b) --Not applicable.
(c)(1) --Agreement and Plan of Merger dated as of May 10, 1995, among Parent, the Purchaser
and the Company.
(c)(2) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser and Roland
D. Pampel, requiring tender of Shares.
(c)(3) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser and
Marguerite M. Paul, requiring tender of Shares.
(c)(4) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser and Steve
J. Paul, requiring tender of Shares.
(c)(5) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser and Dennis
E. Burke.
(c)(6) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser and John R.
Hickey.
(c)(7) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser and Paul F.
Koeppe.
(d) --Not applicable.
(e) --Not applicable.
(f) --Not applicable.
</TABLE>
(Page 6 of Pages)
<PAGE>
SIGNATURE
After due and reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
GENERAL SIGNAL CORPORATION
By: /s/ Edgar J. Smith, Jr.
..................................
Name: Edgar J. Smith, Jr.
Title: Vice President, General
Counsel and Secretary
Dated: May 16, 1995
(Page 7 of Pages)
<PAGE>
SIGNATURE
After due and reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
G.S. NEWCO, INC.
By: /s/ Edgar J. Smith, Jr.
..................................
Name: Edgar J. Smith, Jr.
Title: Vice President and Secretary
Dated: May 16, 1995
(Page 8 of Pages)
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION NUMBER
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<C> <S> <C>
(a)(1) --Offer to Purchase, dated May 16, 1995.................................
(a)(2) --Letter of Transmittal.................................................
(a)(3) --Notice of Guaranteed Delivery.........................................
(a)(4) --Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees....................................................
(a)(5) --Form of Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.............................
(a)(6) --Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.................
(a)(7) --Text of press release issued by Parent on May 10, 1995................
(a)(8) --Text of press release issued by Parent on May 16, 1995................
(a)(9) --Form of Summary Advertisement, dated May 16, 1995.....................
(b) --Not applicable........................................................
(c)(1) --Agreement and Plan of Merger dated as of May 10, 1995, among Parent,
the Purchaser and the Company.........................................
(c)(2) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser
and Roland D. Pampel, requiring tender of Shares......................
(c)(3) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser
and Marguerite M. Paul, requiring tender of Shares....................
(c)(4) --Letter Agreement dated as of May 10, 1995 among Parent, the Purchaser
and Steve J. Paul, requiring tender of Shares.........................
(c)(5) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser
and Dennis E. Burke...................................................
(c)(6) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser
and John R. Hickey....................................................
(c)(7) --Letter Agreement dated as of May 10, 1995, among Parent, the Purchaser
and Paul F. Koeppe....................................................
</TABLE>
(Page 9 of Pages)
Exhibit (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
BEST POWER TECHNOLOGY, INCORPORATED
AT
$21.00 NET PER SHARE
BY
G.S. NEWCO, INC.
A WHOLLY OWNED SUBSIDIARY
OF
GENERAL SIGNAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, JUNE 13, 1995,
UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH, TOGETHER WITH SHARES OWNED BY PARENT, CONSTITUTES AT LEAST A
MAJORITY OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS, AND (II) THE
EXPIRATION OR TERMINATION OF ANY APPLICABLE ANTITRUST WAITING PERIODS.
THE BOARD OF DIRECTORS OF BEST POWER TECHNOLOGY, INCORPORATED (THE
"COMPANY") HAS UNANIMOUSLY APPROVED THE OFFER AND THE MERGER DESCRIBED HEREIN,
HAS DETERMINED THAT EACH OF THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST
INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS THAT THE
STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO
THE OFFER.
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IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
shares of common stock, par value $.01 per share (the "Shares"), of the Company
should either (a) complete and sign the Letter of Transmittal (or a facsimile
thereof) in accordance with the instructions in the Letter of Transmittal and
mail or deliver it together with the certificate(s) representing tendered Shares
to the Depositary or tender such Shares pursuant to the procedures for
book-entry transfer set forth in Section 3 or (b) request such stockholder's
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for such stockholder. A stockholder whose Shares are registered in
the name of a broker, dealer, commercial bank, trust company or other nominee
must contact such broker, dealer, commercial bank, trust company or other
nominee if such stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates evidencing
such Shares are not immediately available or who cannot comply with the
procedures for book-entry transfer on a timely basis may tender such Shares by
following the procedures for guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of this Offer to Purchase. Additional copies of this
Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery
and other related materials may be obtained from the Information Agent or the
Dealer Manager, and will be furnished promptly at the Purchaser's expense. You
may also contact your broker, dealer, commercial bank, trust company or other
nominee for assistance concerning the Offer.
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The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
May 16, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE><CAPTION>
PAGE
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<C> <S> <C>
INTRODUCTION........................................................................... 1
1. Terms of the Offer............................................................... 3
2. Acceptance for Payment and Payment for Shares.................................... 4
3. Procedures for Accepting the Offer and Tendering Shares.......................... 5
4. Withdrawal Rights................................................................ 8
5. Certain Tax Consequences......................................................... 9
6. Price Range of the Shares; Dividends............................................. 9
7. Certain Information Concerning the Company....................................... 10
8. Certain Information Concerning the Purchaser and Parent.......................... 14
9. Background of the Offer; Contacts with the Company; Confidentiality Agreement; 17
Severance Arrangements...........................................................
10. Purpose of the Offer and the Merger; Merger Agreement; Stock Tender Agreements;
Appraisal Rights and Other Matters; Plans for the Company........................ 20
11. Source and Amount of Funds....................................................... 29
12. Possible Effects of the Offer on the Market for the Shares; NASDAQ/NMS Quotation;
Exchange Act Registration; Margin Regulations.................................... 29
13. Dividends and Distributions...................................................... 31
14. Certain Conditions of the Offer.................................................. 31
15. Certain Legal Matters; Required Regulatory Approvals............................. 33
16. Certain Fees and Expenses........................................................ 35
17. Miscellaneous.................................................................... 36
Schedule I--Directors and Executive Officers of Parent and the Purchaser
</TABLE>
i
<PAGE>
To All Holders of Common Stock of
BEST POWER TECHNOLOGY, INCORPORATED:
INTRODUCTION
G.S. Newco, Inc., a Delaware corporation (the "Purchaser") and a wholly
owned subsidiary of General Signal Corporation, a New York corporation
("Parent"), hereby offers to purchase all of the outstanding shares of common
stock, par value $.01 per share (the "Shares"), of Best Power Technology,
Incorporated, a Delaware corporation (the "Company"), at a purchase price of
$21.00 per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements hereto or
thereto, collectively constitute the "Offer").
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer. However, any tendering stockholder or other payee who
fails to complete and sign the Substitute Form W-9 that is included in the
Letter of Transmittal may be subject to a required backup federal income tax
withholding of 31% of the gross proceeds payable to such stockholder or other
payee pursuant to the Offer. See Section 3. The Purchaser will pay all charges
and expenses of Lazard Freres & Co. LLC, as Dealer Manager (the "Dealer
Manager"), First Chicago Trust Company of New York, as Depositary (the
"Depositary"), and D.F. King & Co., Inc., as Information Agent (the "Information
Agent"), in each case incurred in connection with the Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD") HAS UNANIMOUSLY APPROVED
THE OFFER AND THE MERGER DESCRIBED HEREIN, HAS DETERMINED THAT EACH OF THE OFFER
AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE
COMPANY, AND RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER
AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
The Chicago Corporation, the Company's financial advisor, has delivered to
the Board its written opinion that the cash consideration to be received by the
stockholders of the Company pursuant to each of the Offer and the Merger is fair
to such stockholders from a financial point of view. A copy of the opinion of
The Chicago Corporation is contained in the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9"),
which is being mailed to stockholders concurrently herewith.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH, TOGETHER WITH SHARES OWNED BY PARENT, CONSTITUTES AT LEAST A
MAJORITY OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS (THE "MINIMUM
CONDITION"), AND (II) THE EXPIRATION OR TERMINATION OF ANY APPLICABLE ANTITRUST
WAITING PERIODS.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of May 10, 1995 (the "Merger Agreement"), among Parent, the Purchaser and the
Company. The Merger Agreement provides that, among other things, as soon as
practicable after the purchase of Shares pursuant to the Offer and the
satisfaction of the other conditions set forth in the Merger Agreement and in
accordance with the relevant provisions of the General Corporation Law of the
State of Delaware (the "DGCL"), the Purchaser will be merged with and into the
Company (the "Merger"). Following consummation of the Merger, the Company will
continue as the surviving corporation (the "Surviving Corporation") and will
become a wholly owned subsidiary of Parent. At the effective time of the Merger
(the "Effective Time"), each Share issued and outstanding immediately prior to
the Effective Time (other than Shares held in the treasury of the Company or
owned by the Purchaser, Parent or any direct or indirect wholly
<PAGE>
owned subsidiary of Parent, and other than Shares held by stockholders who shall
have demanded and perfected appraisal rights under the DGCL) will be cancelled
and converted automatically into the right to receive $21.00 in cash, or any
higher price that may be paid per Share in the Offer, without interest (the
"Merger Consideration"). The Merger Agreement is more fully described in Section
10.
Concurrently with the execution of the Merger Agreement, Parent and the
Purchaser entered into letter agreements (the "Stock Tender Agreements") with
certain individuals (each a "Seller Stockholder" and, collectively, the "Seller
Stockholders") who are stockholders and directors of the Company, owning, in the
aggregate, 2,015,816 Shares (representing, together with 303,000 Shares owned by
Parent, approximately 24% of the Shares outstanding on May 10, 1995 on a
fully-diluted basis). Pursuant to the Stock Tender Agreements, each Seller
Stockholder has agreed to tender, in accordance with the terms of the Offer, all
Shares owned (beneficially or of record) by such Seller Stockholder and each
Seller Stockholder has agreed not to withdraw his Shares unless the Offer is
extended beyond December 31, 1995, or unless the Merger Agreement is terminated.
See Section 10.
The Merger Agreement provides that, promptly upon the purchase by Parent or
the Purchaser of such number of Shares as represents at least a majority of the
Shares and from time to time thereafter, Parent shall be entitled to designate
such number of directors, rounded up to the next whole number but in no event
more than one less than the total number of directors, on the Board as will give
Parent representation on the Board equal to the product of the number of
directors on the Board and the percentage that such number of Shares so
purchased bears to the total number of Shares outstanding. In the Merger
Agreement, the Company has agreed to take all action necessary to cause Parent's
designees to be elected as directors of the Company, including increasing the
size of the Board or securing the resignations of incumbent directors.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including, if required by law, the approval and adoption of
the Merger Agreement by the requisite vote of the stockholders of the Company.
See Section 10. Under the DGCL, except as otherwise described below, the
affirmative vote of the holders of a majority of the outstanding Shares is
required to approve and adopt the Merger Agreement and the Merger. Consequently,
if the Purchaser acquires (pursuant to the Offer or otherwise) at least a
majority of the then outstanding Shares, the Purchaser will have sufficient
voting power to approve and adopt the Merger Agreement and the Merger without
the vote of any other stockholder.
Under the DGCL, if the Purchaser acquires, pursuant to the Offer or
otherwise, at least 90% of the then outstanding Shares, the Purchaser will be
able to approve and adopt the Merger Agreement and the transactions contemplated
thereby, including the Merger, without a vote of the Company's stockholders. In
such event, the Purchaser intends to take all necessary and appropriate action
to cause the Merger to become effective as soon as practicable after such
acquisition, without a meeting of the Company's stockholders. If, however, the
Purchaser does not acquire at least 90% of the then outstanding Shares pursuant
to the Offer or otherwise and a vote of the Company's stockholders is required
under the DGCL, a longer period of time will be required to effect the Merger.
See Section 10.
The Company has advised the Purchaser that as of May 10, 1995, 9,527,303
Shares were issued and outstanding and that (i) 150,000 Shares were held in the
treasury of the Company, (ii) no Shares were held by the subsidiaries of the
Company and (iii) 129,559 Shares were subject to issuance upon the exercise of
outstanding options. The Company has advised the Purchaser that since May 10,
1995, the date of the Merger Agreement, the Company has not issued any Shares or
any options to purchase Shares other than Shares issued under the Company's
employee stock purchase plan through pre-authorized payroll deductions. It is
expected that issuances under such plan would approximate 325 Shares every two
weeks. As a result, as of the date of this Offer to Purchase, the Minimum
Condition would be satisfied if the Purchaser subsequent to the Offer owned
4,828,432 Shares.
2
<PAGE>
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER. Upon the terms and subject to the conditions of the
Offer (including, if the Offer is extended or amended, the terms and conditions
of any such extension or amendment), the Purchaser will accept for payment and
thereby purchase all Shares validly tendered and not withdrawn in accordance
with the procedures set forth in Section 4 prior to the Expiration Date (as
hereinafter defined). The term "Expiration Date" means 12:00 Midnight, New York
City time, on Tuesday, June 13, 1995, unless and until the Purchaser, in its
sole discretion (but subject to the terms of the Merger Agreement), shall have
extended the period of time for which the Offer is open, in which event the term
"Expiration Date" shall mean the time and date at which the Offer, as so
extended by the Purchaser, shall expire.
Subject to the terms of the Merger Agreement, the Purchaser expressly
reserves the right, in its sole discretion, at any time and from time to time,
to extend the period during which the Offer is open for any reason, including
the occurrence of any event specified in Section 14, by giving oral or written
notice of such extension to the Depositary. During any such extension, all
Shares previously tendered and not withdrawn will remain subject to the Offer
and subject to the right of a tendering stockholder to withdraw such
stockholder's Shares. There can be no assurance that the Purchaser will exercise
its right to extend the Offer. See Section 4.
Subject to the terms of the Merger Agreement and the applicable regulations
of the Securities and Exchange Commission (the "Commission"), the Purchaser also
expressly reserves the right, in its sole discretion, at any time or from time
to time, to (i) delay acceptance for payment of or, regardless of whether such
Shares were theretofore accepted for payment, payment for any Shares pending
receipt of any regulatory or governmental approvals specified in Section 15,
(ii) terminate the Offer (whether or not any Shares have theretofore been
accepted for payment) if any condition referred to in Section 14 has not been
satisfied or upon the occurrence of any event specified in Section 14 and (iii)
waive any condition or otherwise amend the Offer in any respect, in each case,
by giving oral or written notice of such delay, termination, waiver or amendment
to the Depositary and by making a public announcement thereof. The rights
reserved by the Purchaser in this paragraph are in addition to the Purchaser's
rights pursuant to Section 14. The Merger Agreement provides that, without the
consent of the Company, the Purchaser will not (i) decrease the Merger
Consideration payable pursuant to the Offer, (ii) reduce the number of Shares
sought pursuant to the Offer or (iii) impose any additional conditions to the
Offer other than the conditions set forth in Section 14. The Purchaser
acknowledges (i) that Rule 14e-1(c) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), requires the Purchaser to pay the consideration
offered or return the Shares tendered promptly after the termination or
withdrawal of the Offer and (ii) that the Purchaser may not delay acceptance for
payment of, or payment for (except as provided in clause (i) of the first
sentence of this paragraph), any Shares upon the occurrence of any event
specified in Section 14 without extending the period of time during which the
Offer is open.
Any such extension, delay, termination or amendment will be followed as
promptly as practicable by a public announcement thereof, such announcement, in
the case of an extension, to be made no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
Without limiting the manner in which the Purchaser may choose to make any public
announcement, subject to applicable law (including Rules 14d-4(c) and 14d-6(d)
under the Exchange Act, which require that material changes be promptly
disseminated to holders of Shares), the Purchaser shall have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a release to the Dow Jones News Service.
3
<PAGE>
If the Purchaser makes a material change in the terms of the Offer, or if it
waives a material condition to the Offer, the Purchaser will extend the Offer
and disseminate additional tender offer materials to the extent required by
Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act.
Subject to the terms of the Merger Agreement, if prior to the Expiration
Date, the Purchaser increases the consideration offered pursuant to the Offer,
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 is
first published, sent or given to holders of Shares, the Offer will be extended
at least until the expiration of such ten business day period. For purposes of
the Offer, a "business day" means any day other than a Saturday, Sunday or a
federal holiday and consists of the time period from 12:01 a.m. through 12:00
midnight, New York City time.
The Company has provided the Purchaser with the Company's stockholder list
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase and the related Letter of Transmittal
and other relevant materials will be mailed to record holders of Shares and will
be furnished to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the stockholder
lists or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. Upon the terms and subject
to the conditions of the Offer (including, if the Offer is extended or amended,
the terms and conditions of the Offer as so extended and amended) the Purchaser
will purchase, by accepting for payment, and will pay for, all Shares validly
tendered and not withdrawn (as permitted by Section 4) prior to the Expiration
Date promptly after the later to occur of (i) the Expiration Date, (ii) the
expiration or termination of any applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act, as amended (the "HSR Act"), as
specified in Section 15 and (iii) the satisfaction or waiver of the conditions
to the Offer set forth in Section 14. In addition, subject to applicable rules
of the Commission, the Purchaser expressly reserves the right to delay
acceptance for payment of, or payment for, Shares pending receipt of any
regulatory or governmental approvals specified in Section 15 or in order to
comply in whole or in part with any other applicable law.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of (i) the certificates
evidencing such Shares (the "Share Certificates") or timely confirmation (a
"Book-Entry Confirmation") of the book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company, Midwest Securities Trust
Company or Philadelphia Depository Trust Company (collectively, the "Book-Entry
Transfer Facilities") pursuant to the procedures set forth in Section 3, (ii)
the Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or an Agent's Message (as
defined below) in connection with a book-entry transfer and (iii) any other
documents required by the Letter of Transmittal.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against such participant.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not properly
withdrawn as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance of such Shares for payment pursuant to
the Offer. Upon the terms and subject to the conditions of the Offer, payment
for Shares accepted for payment pursuant to the Offer will be made by deposit of
the purchase price therefor with the
4
<PAGE>
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payments from the Purchaser and transmitting such payments to
tendering stockholders whose Shares have been accepted for payment. UNDER NO
CIRCUMSTANCES WILL INTEREST ON THE PURCHASE PRICE FOR SHARES BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if Share Certificates are submitted representing more Shares than are
tendered, Share Certificates representing unpurchased or untendered Shares will
be returned, without expense to the tendering stockholder (or, in the case of
Shares tendered by book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility pursuant to the procedure set forth in Section 3,
such Shares will be credited to an account maintained at such Book-Entry
Transfer Facility), as promptly as practicable following the expiration,
termination or withdrawal of the Offer.
If, prior to the Expiration Date, the Purchaser shall increase the
consideration offered to holders of Shares pursuant to the Offer, such increased
consideration will be paid to all holders of Shares that are purchased pursuant
to the Offer, whether or not such Shares were tendered prior to such increase in
consideration.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to one or more of the Purchaser's subsidiaries or
affiliates the right to purchase all or any portion of the Shares tendered
pursuant to the Offer, but any such transfer or assignment will not relieve the
Purchaser of its obligations under the Offer or prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
3. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES.
VALID TENDER OF SHARES. In order for Shares to be validly tendered pursuant
to the Offer, the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, together with any required signature guarantees, or
an Agent's Message in connection with a book-entry delivery of Shares, and any
other documents required by the Letter of Transmittal must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date and either (i) Share Certificates
representing tendered Shares must be received by the Depositary, or Shares must
be tendered pursuant to the procedure for book-entry transfer set forth below
and Book-Entry Confirmation must be received by the Depositary, in each case
prior to the Expiration Date, or (ii) the guaranteed delivery procedures set
forth below must be complied with.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND SOLE RISK OF THE TENDERING STOCKHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Depositary will make a request to establish
accounts with respect to the Shares at each of the Book-Entry Transfer
Facilities for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant in the
system of any Book-Entry Transfer Facility may make book-entry delivery of
Shares by causing such Book-Entry Transfer Facility to transfer such Shares into
the Depositary's account at such Book-Entry Transfer Facility in accordance with
such Book-Entry Transfer Facility's procedures for such transfer. However,
although delivery of Shares may be effected through book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility, the Letter of
Transmittal (or facsimile
5
<PAGE>
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message and any other required documents must, in any
case, be transmitted to and received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase prior to the Expiration
Date, or the guaranteed delivery procedure set forth below must be complied
with. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO
THE DEPOSITARY.
SIGNATURE GUARANTEES. Signatures on the Letter of Transmittal must be
guaranteed by a firm that is a member in good standing of the Medallion
Signature Guarantee Program, or by any other "eligible guarantor institution,"
as such term is defined in Rule 17Ad-15 under the Exchange Act (each, an
"Eligible Institution"), unless the Shares tendered thereby are tendered (i) by
a registered holder of Shares who has not completed either the box 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 Instruction 1 of the Letter of Transmittal. If the
Share Certificates are registered in the name of a person other than the signer
of the Letter of Transmittal, or if payment is to be made to, or Share
Certificates for unpurchased Shares are to be issued or returned to, a person
other than the registered holder(s), then the Shares Certificates must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear on the Share
Certificates, with the signatures guaranteed by an Eligible Institution. See
Instructions 1, 5 and 7 of the Letter of Transmittal.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share Certificates are not immediately
available or time will not permit the Share Certificates and all other required
documents to reach the Depositary prior to the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Shares may nevertheless be tendered if all of the following guaranteed delivery
procedures are duly complied with:
(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 the Purchaser, is
received by the Depositary, as provided below, prior to the Expiration Date;
and
(iii) the Share Certificates (or a Book-Entry Confirmation) evidencing
all tendered Shares, in proper form for transfer together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof),
with any required signature guarantees (or, in the case of a book-entry
transfer of Shares, an Agent's Message) and any other documents required by
the Letter of Transmittal are received by the Depositary within three (or,
prior to June 6, five) Nasdaq National Market System trading days after the
date of execution of the form of Notice of Guaranteed Delivery made
available by the Purchaser.
The Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by telegram or facsimile transmission to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
Notwithstanding any other provisions hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of Share Certificates for, or of Book-Entry
Confirmation with respect to, such Shares, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof), together with any
required signature guarantees (or, in the case of a book-entry transfer of
Shares, an Agent's Message) and any other documents required by the Letter of
Transmittal. Accordingly, payment might not be made to all tendering
stockholders at the same time, and will depend upon when Share Certificates are
received by the
6
<PAGE>
Depositary or Book-Entry Confirmations of such Shares are received into the
Depositary's account at a Book-Entry Transfer Facility.
DETERMINATION OF VALIDITY. All questions as to the form of documents and the
validity, eligibility (including time of receipt) and acceptance for payment of
any tender of Shares will be determined by the Purchaser, in its sole
discretion, whose determination shall be final and binding on all parties. The
Purchaser reserves the absolute right to reject any or all tenders determined by
it not to be in proper form or the acceptance of or payment for which may, in
the opinion of the Purchaser's counsel, be unlawful. The Purchaser also reserves
the absolute right to waive any of the conditions of the Offer or any defect or
irregularity in any tender of Shares of any particular stockholder whether or
not similar defects or irregularities are waived in the case of other
stockholders.
The Purchaser's interpretation of the terms and conditions of the Offer
(including the Letter of Transmittal and the instructions thereto) will be final
and binding. No tender of Shares will be deemed to have been validly made until
all defects and irregularities with respect to such tender have been cured or
waived by the Purchaser. None of Parent, the Purchaser or any of their
respective affiliates or assigns, the Dealer Manager, the Depositary, the
Information Agent or any other person or entity will be under any duty to give
any notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification.
APPOINTMENT AS PROXY. By executing the Letter of Transmittal, a tendering
stockholder irrevocably appoints designees of the Purchaser, and each of them,
as such stockholder's attorneys-in-fact and proxies, with full power of
substitution, in the manner set forth in the Letter of Transmittal, to the full
extent of such stockholder's rights with respect to the Shares tendered by such
stockholder and accepted for payment by the Purchaser (and with respect to any
and all other Shares and other securities issued or issuable in respect of such
Shares on or after May 10, 1995). All such powers of attorney and proxies shall
be considered irrevocable and coupled with an interest in the tendered Shares.
Such appointment will be effective upon the acceptance for payment of such
Shares by the Purchaser in accordance with the terms of the Offer. Upon such
acceptance for payment, all other powers of attorney and proxies given by such
stockholder with respect to such Shares (and such other Shares and securities)
prior to such payment will be revoked, without further action, and no subsequent
powers of attorney and proxies may be given, or written consents executed by
such stockholder (and, if given or executed, will not be deemed effective). The
designees of the Purchaser will, with respect to the Shares (and such Shares and
other securities for which such appointment is effective), be empowered to
exercise all voting and other rights of such stockholder as they in their sole
discretion may deem proper at any annual or special meeting of the Company's
stockholders, or any adjournment or postponement thereof, or by consent in lieu
of any such meeting or otherwise. In order for Shares to be deemed validly
tendered, immediately upon the acceptance for payment of such Shares, the
Purchaser or its designees must be able to exercise full voting rights with
respect to such Shares (and such other Shares and securities), including voting
at any meeting of stockholders.
7
<PAGE>
OTHER REQUIREMENTS. The Purchaser's acceptance for payment of Shares
tendered pursuant to any of the procedures described above will constitute a
binding agreement between the tendering stockholder and the Purchaser upon the
terms and subject to the conditions of the Offer.
UNDER THE BACKUP WITHHOLDING RULES APPLICABLE TO PAYMENTS MADE TO CERTAIN
STOCKHOLDERS (OTHER THAN CERTAIN EXEMPT STOCKHOLDERS, INCLUDING AMONG OTHERS,
ALL CORPORATIONS AND CERTAIN FOREIGN INDIVIDUALS), THE DEPOSITARY MAY BE
REQUIRED TO WITHHOLD 31% OF THE AMOUNT OF ANY PAYMENTS MADE TO SUCH STOCKHOLDERS
PURSUANT TO THE OFFER OR THE PROPOSED MERGER. TO PREVENT BACKUP WITHHOLDING OF
FEDERAL INCOME TAX ON PAYMENTS MADE PURSUANT TO THE OFFER OR THE PROPOSED
MERGER, EACH SUCH STOCKHOLDER MUST PROVIDE THE DEPOSITARY WITH SUCH
STOCKHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER AND CERTIFY THAT SUCH
STOCKHOLDER IS NOT SUBJECT TO BACKUP WITHHOLDING BY COMPLETING THE SUBSTITUTE
FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL. SEE INSTRUCTION 9 OF THE LETTER
OF TRANSMITTAL.
4. WITHDRAWAL RIGHTS. Tenders of Shares made pursuant to the Offer are
irrevocable, except that Shares tendered pursuant to the Offer may be withdrawn
at any time prior to the Expiration Date and, unless theretofore accepted for
payment as provided herein, may also be withdrawn at any time after July 14,
1995 (or such later date as may apply in case the Offer is extended).
If, for any reason whatsoever, acceptance for payment of any Shares tendered
pursuant to the Offer is delayed, or the Purchaser is unable to accept for
payment or pay for Shares tendered pursuant to the Offer, then, without
prejudice to the Purchaser's rights set forth herein, the Depositary may,
nevertheless, on behalf of the Purchaser, retain tendered Shares and such Shares
may not be withdrawn except to the extent that the tendering stockholder is
entitled to and duly exercises withdrawal rights as described in this Section 4.
Any such delay will be by an extension of the Offer to the extent required by
law.
For a withdrawal to be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase. Any such notice of
withdrawal must specify the name of the person who tendered the Shares to be
withdrawn, the number of Shares to be withdrawn, and (if Share Certificates have
been tendered) the name of the registered holder of the Shares as set forth in
the Share Certificates, if different from that of the person who tendered such
Shares. If Share Certificates have been delivered or otherwise identified to the
Depositary, then prior to the physical release of such Share Certificates, the
tendering stockholder must submit the serial numbers shown on the particular
Share Certificates evidencing the Shares to be withdrawn and the signature on
the notice of withdrawal must be guaranteed by an Eligible Institution, except
in the case of Shares tendered for the account of an Eligible Institution. If
Shares have been tendered pursuant to the procedures for book-entry transfer set
forth in Section 3, the notice of withdrawal must specify the name and number of
the account at the appropriate Book-Entry Transfer Facility to be credited with
the withdrawn Shares, in which case a notice of withdrawal will be effective if
delivered to the Depositary by any method of delivery described in the first
sentence of this paragraph. Withdrawals of Shares may not be rescinded. Any
Shares properly withdrawn will be deemed not validly tendered for purposes of
the Offer, but may be retendered at any subsequent time prior to the Expiration
Date by following any of the procedures described in Section 3.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination shall be final and binding. None of Parent, the
Purchaser or any of their respective affiliates or assigns, the Dealer Manager,
the Depositary, the Information Agent or any other person or entity will be
under any duty to give any
8
<PAGE>
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notification.
5. CERTAIN TAX CONSEQUENCES. The receipt of cash for Shares pursuant to the
Offer or the Merger will be a taxable transaction for federal income tax
purposes and may also be a taxable transaction under applicable state, local,
foreign and other tax laws. For federal income tax purposes, each selling or
exchanging stockholder would generally recognize gain or loss equal to the
difference between the amount of cash received and such stockholder's adjusted
tax basis for the sold or exchanged Shares. Such gain or loss will be capital
gain or loss (assuming the Shares are held as capital assets) and any such
capital gain or loss will be long term if, as of the date of sale or exchange,
the Shares were held for more than one year or will be short term if, as of such
date, the Shares were held for one year or less.
The foregoing discussion may not be applicable to certain types of
stockholders, including stockholders who acquired Shares pursuant to the
exercise of employee stock options or otherwise as compensation, individuals who
are not citizens or residents of the United States and foreign corporations, or
entities that are otherwise subject to special tax treatment under the Internal
Revenue Code of 1986, as amended (such as insurance companies, tax-exempt
entities and regulated investment companies).
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND IS BASED UPON PRESENT LAW. EACH STOCKHOLDER IS URGED TO
CONSULT SUCH STOCKHOLDER'S OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES
TO SUCH STOCKHOLDER OF THE OFFER AND PROPOSED MERGER, INCLUDING FEDERAL, STATE,
LOCAL AND FOREIGN TAX CONSEQUENCES.
6. PRICE RANGE OF THE SHARES; DIVIDENDS. The Shares are listed and traded on
the Nasdaq National Market System ("NASDAQ/NMS") under the symbol "BPTI." The
following table sets forth, for the periods indicated, the high and low sales
prices per Share on the NASDAQ/ NMS, as reported by IDD Information Services
since public trading commenced on August 4, 1993.
<TABLE><CAPTION>
CASH
HIGH LOW DIVIDENDS
------------- ------------- ---------
<S> <C> <C> <C>
Year Ended December 31, 1993
Third Quarter (commencing August 4, 1993)......................... $ 29 3/4 $ 15 3/4 -0-
Fourth Quarter.................................................... 21 1/2 15 1/4 -0-
Year Ended December 31, 1994
First Quarter..................................................... 19 3/4 14 1/4 -0-
Second Quarter.................................................... 18 14 1/2 -0-
Third Quarter..................................................... 17 3/4 13 -0-
Fourth Quarter.................................................... 15 1/4 12 -0-
Year Ended December 31, 1995
First Quarter..................................................... 14 3/4 11 3/4 -0-
Second Quarter (through May 15)................................... 20 3/4 11 -0-
</TABLE>
On May 9, 1995, the last full day of trading prior to the announcement of
the Offer, the reported closing sale price on the NASDAQ/NMS was $13 per Share.
On May 15, 1995, the last full day of trading prior to the date of this Offer to
Purchase, the reported closing sale price on the NASDAQ/ NMS was $20 5/8 per
Share. STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE
SHARES.
9
<PAGE>
The Company has advised the Purchaser that the Company has never declared or
paid any cash dividends in respect of the Shares, and has agreed in the Merger
Agreement that prior to the Merger it will not declare, set aside for payment or
pay any dividends.
7. CERTAIN INFORMATION CONCERNING THE COMPANY. The Company is a Delaware
corporation with its principal executive offices located at P.O. Box 280, Route
80, Necedah, Wisconsin 54646-9899.
The Company designs, manufactures, markets and provides customer support and
service for a comprehensive line of power protection equipment. The Company's
products protect computers, workstations, file servers and other local area
network components, telecommunications equipment and other electronically
sensitive devices from damage to systems or data resulting from electrical power
disturbances and/or outages. The Company's primary products are single-phase
uninterruptible power systems ("UPS"). In addition, the Company offers related
interface software, power line conditioners, surge suppressors, an engine-driven
long-term backup power source, three-phase UPS systems and emergency lighting
systems. The Company markets its products worldwide and has customers in
information technologies, telecommunications, retailing, electronics and general
manufacturing, including major companies such as IBM, Motorola, Toys-R-Us and
Siemens.
10
<PAGE>
Set forth below is certain summary consolidated financial information with
respect to the Company and its consolidated subsidiaries excerpted or derived
from the Company's audited consolidated financial statements for the fiscal year
ended December 31, 1994 (the "1994 Financial Statements"), and unaudited
consolidated financial statements for the fiscal quarter ended March 31, 1995
(the "First Quarter 1995 Financial Statements"), provided to Parent and the
Purchaser by the Company. More comprehensive financial information is included
in the 1994 Financial Statements and First Quarter 1995 Financial Statements
which are included, respectively, in the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994, and its Quarterly Report on Form
10-Q for the quarter ended March 31, 1995, each of which has been filed by the
Company with the Commission. The following summary is qualified in its entirety
by reference to such 1994 Financial Statements and First Quarter 1995 Financial
Statements. Copies of such financial statements may be examined at or obtained
from the Commission in the manner set forth below.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE><CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------------------- ------------------------------------------
1995 1994 1994 1993 1992
----------- ----------- ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Net sales................... $35,284,429 $33,005,077 $149,440,737 $132,637,845 $118,795,517
Cost of goods sold.......... 21,118,741 19,309,329 86,415,305 74,089,107 65,041,135
----------- ----------- ------------ ------------ ------------
Gross profit................ 14,165,688 13,695,748 63,025,432 58,548,738 53,754,382
Operating expenses:
Selling and marketing..... 6,222,603 5,384,542 26,361,484 25,482,531 23,317,857
Administrative............ 2,764,055 2,384,286 10,920,708 7,539,048 8,695,445
Research and development.. 1,999,156 2,171,118 8,582,201 7,273,054 6,464,847
Incentive compensation.... -- -- -- 1,287,000 --
----------- ----------- ------------ ------------ ------------
10,985,814 9,939,946 45,864,393 41,581,633 38,478,149
----------- ----------- ------------ ------------ ------------
Income from operations...... 3,179,874 3,755,802 17,161,039 16,967,105 15,276,233
Other income (expense):
Interest income........... 143,928 184,579 665,221 604,914 433,171
Interest expense.......... (133,765) (12,327) (197,263) (331,860) (548,170)
Foreign currency gain
(loss)...................... 477,348 107,669 198,177 (7,734) (639,661)
Miscellaneous............. (18,819) 784 117,030 (9,144) (46,554)
Minority interest......... 367,131 -- 336,042 -- --
----------- ----------- ------------ ------------ ------------
835,823 280,705 1,119,207 256,176 (801,214)
----------- ----------- ------------ ------------ ------------
Income before income
taxes....................... 4,015,697 4,036,507 18,280,246 17,223,281 14,475,019
Income taxes................ 1,487,403 1,374,576 7,175,000 3,983,025 1,292,409
----------- ----------- ------------ ------------ ------------
Net income.................. $ 2,528,294 $ 2,661,931 $ 11,105,246 $ 13,240,256 $ 13,182,610
----------- ----------- ------------ ------------ ------------
Net income per common
share....................... $ .27 $ .28 $ 1.15 $ -- $ --
----------- ----------- ------------ ------------ ------------
PRO FORMA DATA(a)
Income before income
taxes....................... $ -- $ -- $ -- $ 17,223,281 $ 14,475,019
Income taxes.............. -- -- -- 5,459,928 5,267,644
----------- ----------- ------------ ------------ ------------
Net income.................. $ -- $ -- $ -- $ 11,763,353 $ 9,207,375
----------- ----------- ------------ ------------ ------------
Net income per common
share....................... $ -- $ -- $ -- $ 1.36 $ 1.15
----------- ----------- ------------ ------------ ------------
Weighted average number of
common shares............... 9,522,833 9,657,874 9,620,580 8,664,124 8,011,671
----------- ----------- ------------ ------------ ------------
</TABLE>
(Footnote on following page)
11
<PAGE>
(Footnote for preceding page)
- ------------
(a) PRO FORMA INCOME TAXES
Effective January 1, 1987, the Company and its stockholders elected to be
treated as an S Corporation under Subchapter S of the Internal Revenue Code
and similar provisions under state income tax laws. Accordingly, the
Company's taxable income was includable in the individual tax returns of the
stockholders. Due to the merger of the Company and Best Power Technology
Sales Corporation on July 1, 1993, the Company's status as an S Corporation
was terminated and, as a result, its income was subject to corporate income
taxes from that date forward. The accompanying historical financial
statements, therefore, do not include any provision or liability for income
taxes of the Company for any period during which it was an S Corporation.
For informational purposes, the accompanying consolidated statements of
income include a pro forma presentation for 1992 and 1993 that includes a
provision for income taxes on the earnings of the Company for the periods
during which it was an S Corporation. The pro forma adjustments (i.e.,
additional income tax expense) were calculated based on the income tax laws
and rates in effect during those periods.
Also, in connection with the termination of its S Corporation election, the
Company recorded a nonrecurring income tax benefit (related to the
reinstatement of a net deferred tax asset) which increased net income and
pro forma net income by $1.4 million, or $.16 per share, for the year ended
December 31, 1993.
CONSOLIDATED BALANCE SHEETS
<TABLE><CAPTION>
AT MARCH 31, AT DECEMBER 31,
------------ --------------------------
1995 1994 1993
------------ ----------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents......................... $ 14,256,192 $12,525,006 $19,100,693
Accounts receivable--trade, less allowance of
$224,000 in 1993, $450,000 in 1994 and $440,000
in 1995............................................. 21,460,185 22,055,672 16,545,393
Other receivables................................. 253,348 814,630 187,128
Inventories....................................... 25,386,791 24,902,474 16,292,302
Prepaid expenses and other assets................. 1,301,776 845,082 1,483,868
Deferred tax benefits............................. 3,513,989 3,729,592 2,243,790
------------ ----------- -----------
Total current assets................................ 66,172,281 64,872,456 55,853,174
Property, plant and equipment, net.................. 21,526,541 20,656,877 13,780,165
Intangible assets................................... 3,851,678 3,912,403 231,858
Long-term portion of deferred tax benefits.......... -- -- 268,019
------------ ----------- -----------
Total assets........................................ $ 91,550,500 $89,441,736 $70,133,216
------------ ----------- -----------
</TABLE>
12
<PAGE>
<TABLE><CAPTION>
AT MARCH 31, AT DECEMBER 31,
------------ --------------------------
1995 1994 1993
------------ ----------- -----------
(UNAUDITED)
<S> <C> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.................................. $ 7,510,966 $ 7,868,813 $ 8,049,744
Advance payments--customer service contracts...... 6,495,219 6,471,549 5,626,007
Income taxes payable.............................. 681,590 465,538 515,679
Accrued liabilities............................... 6,270,822 6,603,997 3,727,376
Current maturities of long-term debt and capital
lease obligations................................... 2,912,556 2,884,231 19,957
------------ ----------- -----------
Total current liabilities........................... 23,871,153 24,294,128 17,938,763
Advance payments--customer service contracts........ 3,817,548 3,807,824 4,022,539
Long-term debt and capital lease obligations........ 2,289,649 2,276,804 45,699
Deferred tax liability.............................. 151,962 112,274 20,197
------------ ----------- -----------
Total liabilities................................... 30,130,312 30,491,030 22,027,198
Minority interest................................... 1,083,027 1,450,158 --
Stockholders' equity:
Preferred stock................................... -- -- --
Common stock...................................... 96,762 96,707 96,579
Additional paid-in capital........................ 38,720,710 38,658,307 38,497,117
Retained earnings................................. 23,366,163 20,837,869 9,732,623
Cumulative foreign currency translation
adjustments......................................... 222,276 (23,585) (204,585)
Notes receivable from stockholders................ -- (15,716)
Less treasury shares (150,000--1994), at cost..... (2,068,750) (2,068,750) --
------------ ----------- -----------
Total stockholders' equity.......................... 60,337,161 57,500,548 48,106,018
------------ ----------- -----------
Total liabilities and stockholders' equity.......... $ 91,550,500 $89,441,736 $70,133,216
------------ ----------- -----------
------------ ----------- -----------
</TABLE>
The Company does not as a matter of course prepare public projections of
revenues, income from operations and net income. However, the Company prepared
and subsequently provided to Parent and its representatives the following 5-year
forecasts (in thousands): revenues projected to grow from $181,897 in 1995 to
$460,456 in 1999; income from operations projected to grow from $20,365 in 1995
to $85,312 in 1999; and net income forecast to grow from $12,174 in 1995 to
$53,459 in 1999. According to the Company, the foregoing information did not
reflect the potential effects of, among other things, direct costs associated
with entering into this transaction, and subsequent costs and benefits related
to the combination of the Company and Parent's GS Electrical Power Systems
Group. Because these projections (i) are subject to significant uncertainties,
many of which are beyond the Company's control, and (ii) are based on growth
rates that are higher than published estimates for market and industry growth
for the types of products manufactured and sold by the Company, there can be no
assurance that they will be realized, actual results may be different than those
projected and such differences may be material. The inclusion of such
information should not be regarded as an indication that Parent, the Purchaser,
the Company or anyone who received it considers it a reliable prediction of
future events.
PROJECTED INFORMATION OF THIS TYPE IS BASED ON ESTIMATES AND ASSUMPTIONS
THAT ARE INHERENTLY SUBJECT TO SIGNIFICANT ECONOMIC AND COMPETITIVE
UNCERTAINTIES AND CONTINGENCIES, ALL OF WHICH ARE DIFFICULT TO PREDICT AND MANY
OF WHICH ARE BEYOND THE COMPANY'S CONTROL. ACCORDINGLY, THERE CAN BE NO
ASSURANCE THAT THE PROJECTED RESULTS WILL BE REALIZED OR THAT ACTUAL RESULTS
WILL NOT BE SIGNIFICANTLY DIFFERENT THAN THOSE SET FORTH ABOVE. IN ADDITION,
THESE PROJECTIONS
13
<PAGE>
WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR COMPLIANCE WITH THE
PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES ESTABLISHED BY THE
AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING PROJECTIONS AND
FORECASTS AND ARE INCLUDED IN THIS OFFER TO PURCHASE ONLY BECAUSE SUCH
INFORMATION WAS MADE AVAILABLE TO PARENT BY THE COMPANY. THE FOREGOING
PROJECTIONS WERE NOT COMPILED OR EXAMINED BY THE COMPANY'S INDEPENDENT PUBLIC
ACCOUNTANTS. NONE OF PARENT, THE PURCHASER, THE COMPANY OR ANY OTHER ENTITY OR
PERSON ASSUMES ANY RESPONSIBILITY FOR THE ACCURACY OR VALIDITY OF THE FOREGOING
PROJECTIONS.
Since August 1993, the Shares have been registered under the Exchange Act.
Accordingly, the Company is subject to the information and reporting
requirements of the Exchange Act and in accordance therewith is required to file
periodic reports, proxy statements and other information with the Commission
relating to its business, financial condition and other matters. Certain
information, as of particular dates, concerning the Company's business,
principal physical properties, capital structure, material pending legal
proceedings, operating results, financial condition, directors and officers
(including their remuneration and the stock options granted to them), the
principal holders of the Company's securities, any material interests of such
persons in transactions with the Company and certain other matters is required
to be disclosed in proxy statements and annual reports distributed to the
Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information may be inspected and copied at the Commission's
public reference facilities at Judiciary Plaza, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and should also be available for inspection at the
following regional offices of the Commission: 7 World Trade Center, 13th Floor,
New York, New York 10048; and Citicorp Center, 500 West Madison Street, Chicago,
Illinois 60661-2511; and copies may be obtained by mail at prescribed rates from
the principal office of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549. Reports, proxy statements and other information concerning the
Company may also be inspected at the offices of The Nasdaq Stock Market, 1735 K
Street, N.W., Washington, D.C. 20006.
Although neither Parent nor the Purchaser has any knowledge that any such
information is untrue, neither Parent nor the Purchaser takes responsibility for
the accuracy or completeness of information contained in this Offer to Purchase
with respect to the Company or any of its subsidiaries or affiliates or for any
failure by the Company to disclose events which may have occurred or may affect
the significance or accuracy of any such information.
8. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT. The Purchaser is
a newly incorporated Delaware corporation organized in connection with the Offer
and the Merger and has not carried on any activities other than in connection
with the Offer and the Merger. All of the outstanding capital stock of the
Purchaser is owned by Parent. The principal offices of the Purchaser are located
at c/o General Signal Corporation, One High Ridge Park, P.O. Box 10010,
Stamford, Connecticut 06904.
Until immediately prior to the time that the Purchaser will purchase Shares
pursuant to the Offer, it is not anticipated that the Purchaser will have any
significant assets or liabilities or engage in activities other than those
incident to its formation and capitalization and the transactions contemplated
by the Offer and the Merger. Because the Purchaser is newly formed and has
minimal assets and capitalization, no meaningful financial information regarding
the Purchaser is available.
Parent is a New York corporation with its principal executive offices
located at One High Ridge Park, P.O. Box 10010, Stamford, Connecticut 06904.
Parent, incorporated in New York in 1904, designs, manufactures and sells
equipment and instruments for the process control, electrical, automotive, mass
transportation and telecommunications
14
<PAGE>
industries. Parent serves these markets through three product sectors: (i)
Process Controls, (ii) Electrical Controls and (iii) Industrial Technology.
Parent's corporate strategy is to develop its current three product sectors and
their related core businesses through internal growth, expansion into
international markets and the acquisition of similar businesses which provide
synergistic cost savings and sales growth opportunities with Parent's current
operations. Parent seeks to achieve a critical mass of sales in each of its
operating units to allow each business unit to compete effectively on a global
basis.
The name, business address, citizenship, present principal occupation and
employment history for the past five years of each of the directors and
executive officers of Parent and the Purchaser are set forth in Schedule I of
this Offer to Purchase.
Parent is subject to the information and reporting requirements of the
Exchange Act and in accordance therewith is required to file periodic reports,
proxy statements and other information with the Commission relating to its
business, financial condition and other matters. Certain information, as of
particular dates, concerning Parent's business, principal physical properties,
capital structure, material pending legal proceedings, operating results,
financial condition, directors and officers (including their remuneration and
stock options granted to them), the principal holders of Parent's securities,
any material interests of such persons in transactions with Parent and certain
other matters is required to be disclosed in proxy statements and annual reports
distributed to Parent's shareholders and filed with the Commission. Such
reports, proxy statements and other information may be inspected and copied at
the Commission's public reference facilities and should also be available for
inspection in the same manner as set forth with respect to the Company in
Section 7. Reports, proxy statements and other information concerning the Parent
may also be inspected at the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005.
Except as described in this Offer to Purchase, (i) none of the Purchaser,
Parent nor, to the best knowledge of the Purchaser and Parent, any of the
persons listed in Schedule I to this Offer to Purchase, or any associate or
majority-owned subsidiary of the Purchaser, Parent or any of the persons so
listed, beneficially owns or has any right to acquire, directly or indirectly,
any Shares and (ii) neither the Purchaser nor Parent nor, to the best knowledge
of the Purchaser and Parent, any of the persons or entities referred to above,
nor any director, executive officer or subsidiary of any of the foregoing, has
effected any transaction in the Shares during the past 60 days.
Except as provided in the Merger Agreement and the Stock Tender Agreements
and as otherwise described in this Offer to Purchase, none of the Purchaser,
Parent nor, to the best knowledge of the Purchaser and Parent, any of the
persons listed in Schedule I to this Offer to Purchase, has any contract,
arrangement, understanding or relationship with any other person with respect to
any securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or voting of
such securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guaranties or loans, guaranties against loss, guaranties of
profits, division of profits or loss or the giving or withholding of proxies.
Except as set forth in this Offer to Purchase, since January 1, 1992, neither
the Purchaser nor Parent nor, to the best knowledge of the Purchaser and Parent,
any of the persons listed on Schedule I hereto, has had any business
relationship or transaction with the Company or any of its executive officers,
directors or affiliates that is required to be reported under the rules and
regulations of the Commission applicable to the Offer. Except as set forth in
this Offer to Purchase, since January 1, 1992, there have been no contacts,
negotiations or transactions between any of the Purchaser, Parent or any of
their respective subsidiaries or, to the best knowledge of the Purchaser and
Parent, any of the persons listed in Schedule I to this Offer to Purchase, on
the one hand, and the Company or its affiliates, on the other hand, concerning a
merger, consolidation or acquisition, tender offer or other acquisition of
securities, an election of directors or a sale or other transfer of a material
amount of assets.
15
<PAGE>
FINANCIAL INFORMATION. Set forth below is a summary of certain consolidated
financial information with respect to Parent and its consolidated subsidiaries
excerpted or derived from the information contained in or incorporated by
reference into Parent's Annual Report on Form 10-K for the year ended December
31, 1994 (the "Parent 10-K"), and Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995 (the "Parent 10-Q"). More comprehensive financial
information is included in or incorporated by reference into the Parent 10-K,
the Parent 10-Q and other documents filed by Parent with the Commission, and the
financial information summary set forth below is qualified in its entirety by
reference to the Parent 10-K, the Parent 10-Q and such other documents and all
the financial information and related notes contained therein.
INCOME STATEMENT DATA
<TABLE><CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
GENERAL SIGNAL CORPORATION AND --------------------- --------------------------------
CONSOLIDATED SUBSIDIARIES 1995 1994 1994 1993 1992
- ------------------------------------------- ----------- ------ -------- -------- --------
(IN MILLIONS, EXCEPT PER-SHARE DATA)
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Net sales.................................. $ 411.0 $342.4 $1,527.7 $1,354.2 $1,477.8
Earnings from continuing operations........ $ 27.3 $ 22.2 $ 104.1 $ 98.1 $ 6.3
Earnings per share of common stock from
continuing operations...................... $ 0.58 $ 0.47 $ 2.20 $ 2.17 $ 0.15
Average common shares outstanding.......... 47.2 47.4 47.3 45.2 41.8
BALANCE SHEET DATA
<CAPTION>
DECEMBER 31,
GENERAL SIGNAL CORPORATION AND MARCH 31, --------------------
CONSOLIDATED SUBSIDIARIES 1995 1994 1993
- ------------------------------------------------------------- ----------- -------- --------
(IN MILLIONS)
(UNAUDITED)
<S> <C> <C> <C>
Working capital.............................................. $ 413.6 $ 360.1 $ 268.8
Total assets................................................. $ 1,362.6 $1,342.6 $1,224.9
Total long-term liabilities.................................. $ 477.0 $ 437.6 $ 373.9
Total shareholders' equity................................... $ 566.5 $ 547.9 $ 525.2
</TABLE>
16
<PAGE>
9. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY; CONFIDENTIALITY
AGREEMENT; SEVERANCE ARRANGEMENTS.
BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY. In 1992, the Company
engaged Kemper Securities Group, Inc. to assist in a possible sale of the
Company. Parent participated in this process, visiting the Company's facilities,
meeting with its principal owners and officers and receiving certain information
about the Company. In June 1993, Parent made a conditional offer to acquire the
Company at approximately $14.00 per share. The Company's Board of Directors
rejected this offer. On August 4, 1993, the Company made an initial public
offering of Shares at $14.50 per Share, which began trading on the NASDAQ
National Market System.
From August 1993 to January 1995, Parent periodically contacted certain
members of the Company's Board of Directors to express continued interest in
forming a strategic alliance. The Company consistently responded that it was
uninterested in pursuing such matters with Parent.
In February 1995, Philip A. Goodrich, Vice President--Corporate Development
of Parent, called Paul F. Koeppe, Chairman of the Executive Committee of the
Company, to indicate that Parent would have an interest in discussing a possible
business combination with the Company. Mr. Koeppe told Mr. Goodrich that he
would inform the Executive Committee of Mr. Goodrich's call. Subsequently, Mr.
Goodrich sent Mr. Koeppe public information regarding Parent. Mr. Koeppe did not
return a February 1995 call from Mr. Goodrich.
Later in February 1995, Edmund M. Carpenter, Chairman and Chief Executive
Officer of Parent, placed a telephone call to Mr. Koeppe but did not speak with
him. Dennis E. Burke, Executive Vice President--Administration and Secretary of
the Company, returned the telephone call to Mr. Carpenter, who advised Mr. Burke
that he thought the combination of the Company and Parent would be a very good
fit and that he would like to explore the opportunity of combining the two
companies. Mr. Burke advised Mr. Carpenter that he would refer the inquiry to
the Executive Committee. Mr. Burke called Mr. Carpenter and Mr. Goodrich to
advise them that the Executive Committee had instructed him to advise Parent
that the Company was not for sale. Mr. Carpenter responded by emphasizing the
strength of Parent's interest and stated that Parent would not engage in an
unfriendly bid for the Company.
On March 8, 1995, Mr. Carpenter sent a letter to Mr. Koeppe, Mr. Burke and
other members of the Company's Board of Directors expressing interest in
pursuing a possible business combination of the Company and Parent. The letter
indicated that, while it was not making a formal proposal, based on public
information, Parent believed that a value of $18.50 to $20.00 per Share would be
an extremely attractive transaction for the Company's stockholders. In the
letter Parent requested an ability to pursue such a transaction and validate the
indicated valuation on a confidential and exclusive basis. Mr. Burke responded
by letter to Mr. Carpenter's letter to indicate that such letter had been
provided to the Company's Board of Directors and that Parent's interest would
receive careful consideration by the Board with the assistance of its financial
and legal advisors.
On March 14, 1995, the Company engaged The Chicago Corporation as financial
advisor to assist the Company in a review of strategic alternatives. Following
the retention of The Chicago Corporation, Mr. Koeppe called Mr. Carpenter and
left a message to the effect that the Company was retaining an investment banker
and that the Company's Board of Directors would be meeting to formally review
Parent's proposal in greater detail.
The Chicago Corporation advised Parent that the Company's Board of Directors
had reviewed Parent's letter, that it had made no decisions regarding the
possible sale of the Company, that it had chosen to review with the assistance
of its financial advisor a number of strategic and financial alternatives, that
it would take no action pending a review of such alternatives, and that it would
attempt to respond to Parent within three to four weeks.
17
<PAGE>
Mr. Koeppe spoke with Mr. Carpenter by telephone on March 21, 1995, and
informed him that the Company's Board of Directors had met to review Parent's
proposal and related matters. Mr. Koeppe stated that the proposal would receive
careful consideration from the Company, that the review process would require
three to four weeks to complete, that as Chairman of the Executive Committee Mr.
Koeppe would be the Company's designated spokesman in all discussions between
the Company and Parent, and that Parent should not contact other directors of
the Company. Mr. Carpenter expressed concern about the length of the Company's
review process but stated that he looked forward to a favorable response.
Following the April 9, 1995 meeting of the Company's Board of Directors, The
Chicago Corporation contacted Mr. Carpenter as instructed by the Company's Board
of Directors. Mr. Carpenter indicated a willingness to proceed on a confidential
and non-exclusive basis, and, on April 13, 1995, Parent signed a confidentiality
agreement and began a review of certain non-public information provided by the
Company.
On April 24, 1995, Parent provided a letter to The Chicago Corporation
indicating that while it was not yet prepared to present a formal proposal for
the Company, based on Parent's analysis of certain confidential information
provided by the Company, Parent was prepared to begin contract negotiations with
an interest in acquiring all the Company's outstanding common stock at a cash
price of $20.00 per share. Parent requested that it be allowed to proceed on an
exclusive basis and indicated that its interest must remain confidential. On
April 24, 1995, Parent and its financial advisor, Lazard Freres & Co. LLC,
discussed the letter with The Chicago Corporation. The Chicago Corporation
indicated that it would provide a copy of the April 24, 1995 letter to the
Company's Board of Directors.
After consulting with the Company's Board of Directors on April 25, 1995,
The Chicago Corporation advised Parent that based on Parent's $20.00 per Share
proposal the Company could not agree to an exclusivity provision, but that the
Company would continue to work with Parent on due diligence to confirm the
valuation for the Company's stock and would commence the preparation of a
definitive Merger Agreement to develop a firm proposal for the Company. The
Chicago Corporation further indicated that the Company's Board of Directors
would like to make a decision on a potential transaction with Parent prior to
the Company's Annual Meeting of Shareholders on May 10, 1995. The Chicago
Corporation again reiterated to Parent that there had been no decision by the
Company's Board of Directors to sell the Company. Following this conversation,
Parent called The Chicago Corporation and indicated its willingness to continue
working on a non-exclusive basis on the timetable proposed. Parent began
intensive due diligence efforts and meetings with the management of the Company
during the following two weeks.
On May 4, 1995, Mr. Carpenter met with Mr. Koeppe and Steve J. Paul,
directors of the Company, and The Chicago Corporation to indicate that Parent
was proceeding with its due diligence and its review of a proposed Merger
Agreement on the timetable discussed and would be prepared to make a firm
proposal for the Company prior to its Annual Meeting.
On May 8, 1995, after numerous meetings and discussions with the Company and
The Chicago Corporation, Parent provided a letter to The Chicago Corporation
indicating that it was prepared to make a proposal to acquire all the Company's
outstanding stock at a price of $21.00 per share in a tender offer followed by a
cash-out merger, and proposed certain additional terms for the Company's
consideration, including a break-up fee and an expense reimbursement provision.
Parent indicated that such communication was not a binding proposal and that it
would withdraw its indication of interest if the proposal were disclosed
publicly or to any third party.
On May 9, 1995, the Company's Board of Directors directed The Chicago
Corporation to communicate with Lazard Freres & Co. LLC to determine if the
terms of the transaction proposed could be improved. As a result, the amount of
the breakup fee was reduced from the previously indicated $10 million to $6
million, although Parent refused to increase the price any further. The
18
<PAGE>
Company's Board of Directors instructed The Chicago Corporation to advise Parent
that it was prepared to proceed with a transaction at $21.00 per share if the
parties were able to execute a mutually satisfactory definitive Merger Agreement
prior to the Annual Meeting. The Chicago Corporation communicated the Company's
Board of Director's response to Parent and both parties agreed to complete
negotiation of the Merger Agreement.
On May 10, 1995, prior to the Annual Meeting of Shareholders, the Company's
Board of Directors met to approve and execute the definitive Merger Agreement
and related documents. The Company's Board of Directors unanimously determined
that the Offer and the Merger would be fair to and in the best interests of the
Company's stockholders and that it would recommend that the Company's
stockholders accept the Offer and tender their Shares pursuant to the Offer.
Immediately following the May 10, 1995 Board of Directors meeting, the parties
executed and delivered the definitive Merger Agreement, and Parent and the
Company issued press releases announcing the transaction and the principal terms
and conditions thereof.
CONFIDENTIALITY AGREEMENT. Parent entered into a Confidentiality Agreement,
dated April 13, 1995 (the "Confidentiality Agreement"), with The Chicago
Corporation, acting on behalf of the Company, pursuant to which Parent agreed,
among other things, to keep confidential certain non-public confidential and
proprietary information of the Company furnished to Parent by or on behalf of
the Company. The Confidentiality Agreement provides that, for a period of two
years from the date of the agreement, unless specifically requested in writing
by the Board of Directors of the Company, neither Parent nor any of its
directors, employees, agents, representatives or commercial or investment banks
participating in the financing of any transaction will (a) effect or seek, offer
or propose to effect, or cause or participate in (i) any acquisition of any
securities (or beneficial ownership thereof) or assets of the Company or any of
its subsidiaries; (ii) any tender or exchange offer or merger or other business
combination involving the Company or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its subsidiaries; or (iv) any
solicitation of proxies (as such terms are used in the proxy rules of the
Commission) or consent to vote any voting securities of the Company, (b) form,
join or in any way participate in a "group" (as defined under the Exchange Act),
(c) otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company, (d)
take any action that might force the Company to make a public announcement
regarding any of the types of matters set forth in (a) above, or (e) enter into
any discussions or arrangements with any third party with respect to any of the
foregoing. The Confidentiality Agreement does not, however, restrict Parent from
taking any action in the event the Company publicly announces that it is
considering a specific transaction with respect to, or has entered into any
arrangement or understanding with respect to, the sale of all or any substantial
portion of the Company (other than any such arrangement or understanding with
Parent), or from making a tender offer for all of the outstanding capital stock
of the Company after such time as a third party has commenced, within the
meaning of Rule 14d-2 of the Exchange Act, a tender offer for the Company at a
lower value.
SEVERANCE ARRANGEMENTS. The Company entered into a severance agreement with
Steve J. Paul, a director of the Company, dated March 31, 1995, in connection
with Mr. Paul's termination as Chief Executive Officer of the Company in January
1995. Under the severance agreement, the Company paid to Mr. Paul $433,000 in
severance and in settlement of Mr. Paul's claims alleged against the Company
arising under his employment agreement with the Company and otherwise as a
result of the termination of such employment. The Company also granted to Mr.
Paul an option to purchase 21,533 Shares for $13.48 per share. The severance
agreement provides that such option would terminate, however, if the Board
approved specified change of control transactions, including a transaction such
as the Offer and the Merger. Accordingly, if the Offer is completed for at least
80% of the Shares outstanding or the Merger is completed, Mr. Paul will be
entitled to receive from the Company an amount in cash equal to the product of
(A) 21,533 and (B) the "Average Value Received" (as defined in the severance
agreement) for each Share in the Offer minus $13.48, or $161,928 based on
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the Offer price of $21.00 per Share. All options previously granted to Mr. Paul
under 1993 Stock Option Plan were terminated pursuant to the agreement. The
Company has agreed to use its best efforts to maintain through May 17, 1996
health, dental and life insurance coverage for Mr. Paul and his dependents on
the same basis as provided for executive officers of the Company. The Company
also has agreed to indemnify Mr. Paul to the same extent as currently provided
in Article 8 of the Company's Restated Certificate of Incorporation if such
Article is amended to reduce or eliminate indemnification of officers and
directors. The severance agreement imposes on Mr. Paul a confidentiality
restriction and a covenant not to compete, and releases the Company and its
officers, directors, employees and agents from liability for acts or omissions
before the effective date of the severance agreement relating to Mr. Paul's
employment, Company policies or plans, and various laws relating to employment
matters. The Company also entered into a severance agreement with Marguerite M.
Paul, a director of the Company, dated May 12, 1995, in connection with Mrs.
Paul's termination as Executive Vice President--Administration and Secretary of
the Company in January 1995. The severance agreement with Mrs. Paul contains
terms substantially the same as those in the severance agreement with Mr. Paul
described above, except that Mrs. Paul received a cash payment of $330,000 and,
in lieu of stock options, stock appreciation rights that entitle her to receive
$161,928 upon consummation of the Merger. John R. Hickey, Executive Vice
President-Operations, Dennis E. Burke, Executive Vice President-Administration
and Corporate Secretary, Gary W. Jungwirth, Senior Vice President-Manufacturing
and Frederick A. Stich, Senior Vice President-Research and Development are
parties to employment agreements with the Company, which terminate in May 1996,
except Mr. Hickey's agreement, which terminates on December 31, 1996. The
Company's Board of Directors has authorized amendments to such agreements
providing that if either employee is actually or constructively terminated,
other than for cause (as defined in the applicable agreement), he will receive a
severance payment equal to at least one year's salary. In the event of
termination, such individuals would be entitled to severance payments as
follows: John R. Hickey--$200,000; Dennis E. Burke-- $165,000; Gary W.
Jungwirth--$125,000; and Frederick A. Stich--$120,000. In addition, the
Company's Board of Directors has authorized the payment of bonuses aggregating
$1,000,000 to 17 persons who are employees or directors of the Company. Such
bonuses are expected to be paid prior to consummation of the Merger. Bonuses to
directors and executive officers will be made as follows: John R.
Hickey--$200,000; Dennis E. Burke--$165,000; Paul F. Koeppe--$100,000; Frederick
A. Stich-- $50,000; and Gary W. Jungwirth--$50,000.
10. PURPOSE OF THE OFFER AND THE MERGER; MERGER AGREEMENT; STOCK TENDER
AGREEMENTS; APPRAISAL RIGHTS AND OTHER MATTERS; PLANS FOR THE COMPANY.
PURPOSE OF THE OFFER AND THE MERGER. The purpose of the Offer and the Merger
is for Parent to acquire control of, and the entire equity interest in, the
Company. The purpose of the Merger is for Parent to acquire all Shares not
purchased pursuant to the Offer. Upon consummation of the Merger, the Company
will become a wholly owned subsidiary of Parent. The Offer is being made
pursuant to the Merger Agreement.
THE MERGER AGREEMENT. The following is a summary of the Merger Agreement, a
copy of which has been filed as an Exhibit to the Tender Offer Statement on
Schedule 14D-1 (the "Schedule 14D-1") filed by the Purchaser and Parent with the
Commission in connection with the Offer. Such summary is qualified in its
entirety by reference to the Merger Agreement.
The Offer. The Merger Agreement provides for the commencement of the Offer
as promptly as practicable, but in no event later than five business days after
the date of the initial public announcement of the execution and delivery of
the Merger Agreement. The Purchaser and Parent have agreed that no change in
the Offer may be made which decreases the Merger Consideration payable in the
Offer, which reduces the number of Shares sought pursuant to the Offer or which
imposes additional conditions to the Offer.
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The Merger. The Merger Agreement provides that, upon the terms and subject
to the conditions thereof, and in accordance with the DGCL, at the Effective
Time, the Purchaser shall be merged with and into the Company. As a result of
the Merger, the separate corporate existence of the Purchaser will cease and
the Company will continue as the Surviving Corporation and will become a wholly
owned subsidiary of Parent. Upon consummation of the Merger, each Share issued
and outstanding immediately prior to the Effective Time (other than any Shares
owned by the Company or any of its subsidiaries or any Shares that are held by
stockholders who have not voted in favor of the Merger or consented thereto in
writing and who shall have demanded properly in writing appraisal for such
Shares in accordance with the DGCL) shall be converted into the right to
receive $21.00.
Pursuant to the Merger Agreement, all shares of common stock, par value
$.01 per share, of the Purchaser issued and outstanding immediately prior to
the Effective Time shall be converted into and exchanged for such number of
newly issued shares of common stock of the Surviving Corporation as shall equal
the sum of (x) the number of Shares outstanding immediately prior to the
Effective Time and (y) the number of Shares underlying options to purchase
Shares to be cashed out by Parent pursuant to the Merger Agreement as described
herein under "Effect on Company Options."
The Merger Agreement provides that the directors of the Purchaser
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation and that the officers of the Surviving Corporation shall
be determined by the board of directors of the Surviving Corporation
immediately after the Effective Time. The Merger Agreement provides that the
certificate of incorporation and by-laws of the Company will be the certificate
of incorporation and by-laws of the Surviving Corporation until thereafter
amended as provided by law.
Special Meeting. The Merger Agreement provides that, if required by
applicable law in order to consummate the Merger, the Company, acting through
the Board, shall, in accordance with applicable law, (i) duly call, give notice
of, convene and hold a special meeting (the "Special Meeting") of its
stockholders as soon as practicable following the expiration of the Offer for
the purpose of considering and taking action upon the Merger Agreement and the
transactions contemplated thereby; (ii) file with the Commission under the
Exchange Act a proxy statement or information statement and related materials
(the "Proxy Statement") and use its best efforts to obtain and furnish the
information required to be included by it in the Proxy Statement and, after
consultation with Parent, respond promptly to any comments made by the
Commission with respect to the Proxy Statement and any preliminary version
thereof and cause the Proxy Statement to be mailed to its stockholders at the
earliest practicable time following the expiration or termination of the Offer
or at such other time as Parent shall direct following consultation with the
Company; and (iii) include in the Proxy Statement the recommendation of the
Board that stockholders of the Company vote in favor of the approval of the
Merger Agreement and the Merger and use its best efforts to obtain the
necessary approval of the Merger Agreement and the Merger by its stockholders.
Parent has agreed that, at the Special Meeting, all of the Shares then owned by
Parent and the Purchaser will be voted in favor of the Merger Agreement and the
Merger.
Merger Without Meeting of Stockholders. The Merger Agreement provides that,
in the event that Parent, the Purchaser and any other subsidiary of Parent
shall acquire an aggregate of at least 90 percent of the outstanding Shares, at
the request of Parent or the Purchaser, the Company, Parent and the Purchaser
will take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after the expiration of the Offer or at such
other time as Parent shall direct following consultation with the Company,
without a meeting of stockholders of the Company, in accordance with Section
253 of the DGCL.
Designation of Directors. The Merger Agreement provides that, promptly upon
Parent acquiring a majority of the outstanding Shares and from time to time
thereafter, Parent shall be entitled to designate such number of directors,
rounded up to the next whole number but in no event more than
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one less than the total number of directors, on the Board as will give Parent,
subject to compliance with Section 14(f) of the Exchange Act, representation on
the Board equal to the product of the number of directors on the Board and the
percentage that such number of Shares acquired bears to the number of Shares
outstanding. Pursuant to the Merger Agreement, the Company shall, upon request
by Parent, promptly increase the size of the Board to the extent permitted by
its certificate of incorporation or exercise its best efforts to secure the
resignations of such number of directors as is necessary to enable Parent's
designees to be elected to the Board and shall cause Parent's designees to be
so elected. At the request of Parent, the Company has agreed to take, at its
expense, all action necessary to effect any such election, including mailing to
its stockholders the information required by Section 14(f) of the Exchange Act
and Rule 14f-1 promulgated thereunder. Such information is being distributed to
stockholders of the Company with this Offer to Purchase.
Conduct of Business of the Company. Pursuant to the Merger Agreement, the
Company has covenanted and agreed that except as expressly agreed to in writing
by Parent, during the period from the date of the Merger Agreement to the
Effective Time, each of the Company and its subsidiaries shall conduct its
operations according to its ordinary course of business consistent with past
practice, and shall use all commercially reasonable efforts to preserve intact
its business organization, to keep available the services of its officers and
employees and to maintain satisfactory relationships with suppliers,
distributors, customers and others having business relationships with it and
shall take no action which would materially adversely affect the ability of the
Company, Parent or the Purchaser to consummate the transactions contemplated by
the Merger Agreement. The Merger Agreement provides that, without limiting the
generality of the foregoing, and except as otherwise expressly provided
therein, prior to the Effective Time, the Company shall not nor shall it permit
any of its subsidiaries to, without the prior written consent of Parent: (a)
amend its certificate of incorporation or by-laws; (b) authorize for issuance,
issue, sell, deliver, grant any options for, or otherwise agree or commit to
issue, sell or deliver any Shares or any securities convertible into Shares,
except pursuant to and in accordance with the terms of currently outstanding
options; (c) split, combine or reclassify any Shares, declare, set aside or pay
any dividend or other distribution (whether in cash, stock or property or any
combination thereof) in respect of the Shares or purchase, redeem or otherwise
acquire any Shares or any capital stock of any of its subsidiaries; (d) except
in the ordinary course of business, consistent with past practices, (i) create,
incur, assume, maintain or permit to exist any long-term debt or any short-term
debt for borrowed money other than under existing lines of credit or
replacements thereof, (ii) assume, guarantee, endorse or otherwise become
liable or responsible (whether directly, contingently or otherwise) for the
obligations of any person other than its subsidiaries, or (iii) make any loans,
advances or capital contributions to, or investments in, any person other than
its subsidiaries, except pursuant to existing commitments; (e) except as
otherwise expressly contemplated by the Merger Agreement or as set forth in
Schedule 5.01 to the disclosure schedule delivered in connection therewith, (i)
increase in any manner the compensation of any of its directors, officers or
other employees; (ii) pay or agree to pay any pension, retirement allowance or
other employee benefit not required, or enter into or agree to enter into any
agreement or arrangement with such director, officer or employee, whether past
or present, relating to any such pension, retirement allowance or other
employee benefit except as required under existing agreements, plans or
arrangements; (iii) grant any severance or termination pay to, or enter into
any employment or severance agreement with, any of its directors, officers or
other employees; or (iv) except as may be required to comply with applicable
law, become obligated (other than pursuant to any new or renewed collective
bargaining agreement) under any new pension plan, welfare plan, multi-employer
plan, employee benefit plan, benefit arrangement, or similar plan or
arrangement, not in existence on the date of the Merger Agreement, including
any bonus, incentive, deferred compensation, stock purchase, stock option,
stock appreciation right, group insurance, severance pay, retirement or other
benefit plan, agreement or arrangement, or employment or consulting agreement
with or for the benefit of any person, or amend any of such plans or any of
such agreements in existence on the date thereof; (f) except as otherwise
expressly contemplated by the Merger Agreement, enter into any other material
agreements, commitments or contracts, except
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agreements, commitments or contracts for the purchase, sale or lease of goods
or services in the ordinary course of business, consistent with past practices;
(g) except in the ordinary course of business, consistent with past practices,
or as contemplated by the Merger Agreement, authorize, recommend, propose or
announce an intention to authorize, recommend or propose, or enter into, any
agreement in principle or any agreement with respect to any plan of liquidation
or dissolution, any acquisition of a material amount of assets or securities,
any sale, transfer, lease, license, pledge, mortgage, or other disposition or
encumbrance of a material amount of assets or securities or any material change
in its capitalization, or any entry into a material contract or any amendment
or modification of any material contract or any release or relinquishment of
any material contract rights; (h) knowingly undertake any act, or suffer to
exist any condition, causing any insurance policy naming it as a beneficiary or
a loss payee to be canceled or terminated, except in the ordinary course of
business and consistent with past practice and following written notice to
Parent; (i) enter into any hedging, option, derivative or other similar
transaction, except in the ordinary course of business and consistent with past
practices and following written notice to Parent; or (j) agree to do any of the
foregoing.
Access to Information; Confidentiality. The Merger Agreement provides that,
from the date of the Merger Agreement until the Effective Time, the Company
shall give Parent and its authorized representatives (including counsel,
environmental and other consultants, financial advisors, accountants and
auditors) reasonable access during normal business hours to all facilities,
personnel and operations and to all books and records of it and its
subsidiaries, will permit Parent to make such inspections as it may reasonably
require and will cause its officers and those of its subsidiaries to furnish
Parent with such financial and operating data and other information with
respect to its business and properties as Parent may from time to time
reasonably request; provided, however, that access to intellectual property and
other proprietary information of third parties and information access to which
is otherwise restricted by agreements with joint venture partners or other
third parties shall be withheld from Parent and such representatives except to
the extent disclosure thereof is specifically authorized in writing by any such
third party. Also, pursuant to the Merger Agreement, each of the Company,
Parent and the Purchaser will hold and will cause all of its employees and
representatives and the employees and representatives of its subsidiaries to
hold in strict confidence pursuant to the Confidentiality Agreement all
documents and information furnished to the others in connection with the
transactions contemplated by the Merger Agreement as if each such employee or
representative were a party thereto.
Acquisition Proposals. Pursuant to the Merger Agreement, the Company has
agreed that from and after the date thereof and until the earlier of the
consummation of the Merger or the termination of the Merger Agreement, it
shall, and shall cause its subsidiaries and shall use its best efforts to cause
the officers, directors, investment bankers and attorneys of the Company and
its subsidiaries to, (a) discontinue the solicitation of potential acquirors of
the Company and not solicit (or authorize any person to solicit), directly or
indirectly, any further inquiries, proposals or offers from any person relating
to any acquisition or purchase of all or substantially all the assets of, or
any equity interest in, or any merger, consolidation or business combination
with, the Company or any of its subsidiaries (the foregoing being referred to
as an "Acquisition Transaction"), (b) not enter into any agreement with respect
to any Acquisition Transaction and (c) except in the event that there is an
unsolicited written proposal for an Acquisition Transaction from a bona fide
third party, and then only if (i) three business days' written notice shall
have been given to Parent; and (ii) (A) such proposal is not expressed as
subject to the arrangement of financing, (B) the Board shall have been advised
in writing by its investment banker that such third party appears to be
financially capable of consummating an Acquisition Transaction that would yield
a higher value to the Company's stockholders than will the Offer and the
Merger, (C) the Board shall have been advised, by the written opinion of
outside counsel to the Company, that any failure to so act would constitute a
breach of the fiduciary responsibilities of the Board to the stockholders of
the Company and (D) the Board, after weighing such advice,
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determines that taking such action is more likely than not to lead to an
Acquisition Transaction with such third party that would yield a higher value
to the Company's stockholders than will the Offer and the Merger and that
failing to so act would constitute a breach of the Board's fiduciary duties,
not elicit any discussions of, participate in any negotiations regarding,
cooperate with, facilitate or encourage an Acquisition Transaction or furnish
to any other person any non-public information concerning the Company in
connection therewith. The Company shall immediately notify Parent if any
proposal or offer with respect to an Acquisition Transaction is received by the
Company and communicate to Parent the terms of any such proposal or offer.
Effect on Company Options. The Merger Agreement provides that promptly
after the Effective Time, each holder of options to acquire shares of common
stock of the Company granted under any stock option plan of the Company,
whether or not such options are then exercisable, will be entitled to receive
an amount in cash equal to the difference between (x) the product of the number
of shares of common stock of the Company covered by such options multiplied by
the Merger Consideration, and (y) the aggregate option exercise price payable
upon exercise of such options.
Indemnification and Insurance. Pursuant to the Merger Agreement, Parent
shall, and shall cause the Surviving Corporation to, indemnify, defend and hold
harmless the present and former officers, directors, employees and agents of
the Company and its subsidiaries against all losses, claims, damages, expenses
or liabilities arising out of actions or omissions or alleged actions or
omissions occurring at or prior to the Effective Time to the same extent and on
the same terms and conditions (including with respect to advancement of
expenses) provided for in the Company's certificate of incorporation and
by-laws and agreements in effect at the date of the Merger Agreement. For a
period of six years after the Effective Time, Parent shall cause to be
maintained in effect the current policies of directors' and officers' liability
insurance maintained by the Company (provided that Parent may substitute
therefor policies of at least the same coverage and amounts containing terms
and conditions which are no less advantageous) with respect to claims arising
from facts or events which occurred before the Effective Time.
Reasonable Efforts. The Merger Agreement provides that, subject to its
terms and conditions and applicable law, each of the Company, Parent and the
Purchaser shall use all commercially reasonable efforts promptly to take, or
cause to be taken, all other actions and do, or cause to be done, all other
things necessary, proper or appropriate under applicable laws and regulations
to consummate and make effective the transactions contemplated by the Merger
Agreement.
Representations and Warranties. In the Merger Agreement, the Company has
made customary representations and warranties to Parent and the Purchaser with
respect to, among other things, its organization, capitalization, authority,
financial statements, public filings, conduct of business, employee benefit
plans, brokers' fees, state antitakeover statutes, compliance with laws,
litigation, environmental matters, tax matters, intellectual property rights,
consents and approvals, undisclosed liabilities and the absence of certain
changes with respect to the Company since March 31, 1995.
Conditions to the Merger. The Merger Agreement provides that (a) the
respective obligations of the Company, Parent and the Purchaser to effect the
transactions contemplated therein shall be subject to the fulfillment at or
prior to the Closing of each of the following conditions: (i) if required by
applicable law, the requisite vote of the stockholders of the Company necessary
to consummate the Merger shall have been obtained; and (ii) all necessary
consents and approvals of any United States or any other governmental authority
or any other third party required for the consummation of the transactions
contemplated by the Merger Agreement shall have been obtained, except for such
consents and approvals the failure to obtain which individually or in the
aggregate would not have a material adverse effect on the business, operations,
assets, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"); and any waiting
period applicable to the consummation of the Offer and the Merger under the HSR
Act shall have expired or
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been terminated; (b) the obligations of Parent and the Purchaser to effect the
transactions contemplated by the Merger Agreement and to perform their other
obligations to be performed at or subsequent to the Closing shall be subject to
the fulfillment at or prior to the Closing of the following additional
conditions, any one or more of which may be waived by Parent: (i) the
representations and warranties of the Company contained in the Merger Agreement,
described above under "Representations and Warranties" shall be true and correct
on the date of the Merger Agreement and at and on the Closing Date as though
such representations and warranties were made at and on such date, except for
such untruths or inaccuracies which would not, individually or in the aggregate,
have a Material Adverse Effect; (ii) the Company shall have performed and
complied in all material respects with all agreements, obligations and
conditions required by the Merger Agreement to be performed or complied with by
it on or prior to the Closing Date; (iii) the Company shall furnish such
certificates of appropriate officers and directors to evidence compliance with
the conditions set forth in the Merger Agreement as may be reasonably requested
by Parent; (iv) no writ, order, decree or injunction of a court of competent
jurisdiction or governmental entity shall be in effect against any of the
Company, Parent or the Purchaser, and no proceedings therefor shall have been
threatened or commenced by any governmental entity, which prohibits or restricts
the consummation of the Offer or the Merger or would otherwise restrict the
Surviving Corporation's exercise of full rights to own and operate its business
in a manner which would have a Material Adverse Effect; and (v) there shall not
have occurred since the date of the Merger Agreement any material adverse change
in the business, operations, assets, financial condition or results of
operations of the Company and its subsidiaries taken as a whole; and (c) the
obligation of the Company under the Merger Agreement to effect the transactions
contemplated therein shall be subject to the fulfillment on or before the
Closing Date of each of the following additional conditions, any one or more of
which may be waived by the Company: (i) the representations and warranties of
Parent and the Purchaser contained in the Merger Agreement shall be true and
correct on the date of the Merger Agreement and at and on the Closing Date as
though such representations and warranties were made at and on such date, except
for such untruths or inaccuracies which would not, individually or in the
aggregate, impair their ability to consummate the transactions contemplated by
the Merger Agreement; (ii) Parent and the Purchaser shall have each performed
and complied in all material respects with all agreements, obligations and
conditions required by the Merger Agreement to be performed or complied with by
either of them on or prior to the Closing Date; (iii) Parent and the Purchaser
shall furnish such certificates of their respective officers to evidence
compliance with the conditions set forth in the Merger Agreement as may be
reasonably requested by the Company; and (iv) no writ, order, decree or
injunction of a court of competent jurisdiction or governmental entity shall be
in effect against any of the Company, Parent or the Purchaser, and no
proceedings therefor shall have been threatened or commenced by any governmental
entity, which prohibits or restricts the consummation of the Merger.
Termination; Fees. The Merger Agreement provides that:
(a) The Merger Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval by the stockholders of the
Company, (i) by mutual consent of the Boards of Directors of Parent and the
Company; (ii) by either Parent or the Company if, without a breach of the
Merger Agreement by such terminating party, the Merger shall not have been
consummated on or before December 31, 1995, which date may be extended by
mutual written consent of Parent and the Company; (iii) by either Parent or
the Company, if any court of competent jurisdiction in the United States or
other governmental body in the United States shall have issued an order
(other than a temporary restraining order), decree or ruling or taken any
other action restraining, enjoining or otherwise prohibiting the Offer or
the Merger, and such order, decree, ruling or other action shall have become
final and nonappealable; provided that the party seeking to terminate the
Merger Agreement shall have used all commercially reasonable efforts to
remove or lift such order, decree or ruling; (iv) by either Parent and the
Purchaser or the Company, if no Shares shall have been purchased pursuant to
the Offer on or before September 30, 1995; or
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(v) by either Parent and the Purchaser or the Company, if the Offer is
terminated in accordance with its terms without the purchase of any Shares.
(b) The Merger Agreement may be terminated and the transactions
contemplated thereby abandoned by action of the Board of Directors of
Parent, at any time prior to the Effective Time, before or after the
approval by the stockholders of the Company, if (i) the Company shall have
failed to comply in any material respect with certain of the covenants
contained therein to be complied with or performed by the Company at or
prior to such date of termination, (ii) there exists a breach or breaches of
any representation or warranty of the Company contained in the Merger
Agreement such that the closing condition described in clause (b)(i) under
"Conditions to the Merger" above would not be satisfied as of the Closing
Date; provided, however, that if such breach or breaches are capable of
being cured prior to the Effective Time, such breaches shall not have been
cured by the earlier of December 31, 1995 or 20 days following delivery to
the Company of written notice of such breach or breaches, (iii) the Board of
Directors of the Company shall have exercised their rights described in
clause (c) under "Acquisition Proposals" above or (iv) the Board of
Directors of the Company shall, at the time of a bona fide offer concerning
an Acquisition Transaction made after the date of the Merger Agreement, have
exercised their rights under the Merger Agreement to withdraw, modify or
change their recommendation to stockholders with respect to the Offer, the
Merger and the other transactions contemplated by the Merger Agreement.
(c) The Merger Agreement may be terminated and the transactions
contemplated thereby abandoned at any time prior to the Effective Time,
before or after the approval by the stockholders of the Company, by action
of the Board of Directors of the Company, if (i) Parent or the Purchaser
shall have failed to comply in any material respect with certain covenants
or agreements contained in the Merger Agreement to be complied with or
performed by Parent or the Purchaser at or prior to such date of the
termination, (ii) there exists a breach or breaches of any representation or
warranty of Parent or Purchaser contained in the Merger Agreement such that
the closing condition described in clause (c)(i) under "Conditions to the
Merger" above would not be satisfied as of the Closing Date; provided,
however, that if such breach or breaches are capable of being cured prior to
the Effective Time, such breaches shall not have been cured by the earlier
of December 31, 1995 or 20 days following delivery to Parent of written
notice of such breach or breaches, or (iii) the Board of Directors of the
Company shall, at the time of a bona fide offer concerning an Acquisition
Transaction made after the date of the Merger Agreement, have exercised
their rights under the Merger Agreement to withdraw, modify or change their
recommendation to stockholders with respect to the Offer, the Merger and the
other transactions contemplated by the Merger Agreement.
The Merger Agreement provides that if the Merger Agreement is terminated
(other than as described in clause c(i) or c(ii) above) and after the date
thereof and prior to such termination a third party shall have made a bona fide
offer concerning an Acquisition Transaction that would yield a higher value to
the Company's stockholders than the Offer and Merger, the Company shall within
two business days pay Parent by wire transfer of immediately available funds to
an account specified by Parent up to $4 million to reimburse Parent for its
documented fees and expenses directly related to the Merger Agreement and the
transactions contemplated thereby. If the Merger Agreement is terminated by
Parent as described in clause b(iv) above, or by the Company as described in
clause c(iii) above, the Company shall within two business days pay to Parent by
wire transfer of immediately available funds to an account specified by Parent
an additional fee of $6 million. If such additional fee has not already become
payable and within twelve months after the date of the Merger Agreement the
Company enters into a definitive agreement for an Acquisition Transaction or an
Acquisition Transaction is effected, and if after the date of the Merger
Agreement and prior to its termination (in a manner described above) a third
party shall have proposed an Acquisition Transaction to the Company or its
stockholders that would yield a higher value to the Company's stockholders than
the Offer and the Merger, then the
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Company, concurrently with and as a condition to entering into any definitive
agreement for an Acquisition Transaction or any Acquisition Transaction being
effected within twelve months after the date of the Merger Agreement, shall pay
Parent by wire transfer of immediately available funds to an account specified
by Parent an additional fee of $6 million; provided that no such additional fee
shall be payable in the event the Merger Agreement shall have been terminated as
described in clause c(i) or c(ii) above. So long as the Company is not in breach
of or default under any covenant, condition, representation or warranty under
the Merger Agreement, in the event of a termination of the Merger Agreement by
the Company as described in clause c(i) or c(ii) above, then Parent shall
promptly pay the Company by wire transfer of immediately available funds to an
account specified by the Company up to $4 million to reimburse the Company for
all documented fees and expenses incurred by the Company (including the fees and
expenses of counsel, accountants, consultants and advisors) directly related to
the Merger Agreement and the transactions contemplated thereby.
STOCK TENDER AGREEMENTS. Concurrently with the execution of the Merger
Agreement, Parent and the Purchaser entered into the Stock Tender Agreements
with the Seller Stockholders. The Seller Stockholders own in the aggregate,
2,015,816 Shares (representing, together with 303,000 Shares owned by Parent,
approximately 24% of the Shares outstanding on May 10, 1995, on a fully diluted
basis). Pursuant to the Stock Tender Agreements, each Seller Stockholder has
agreed to tender, in accordance with the terms of the Offer, all Shares owned
(beneficially or of record) by such Seller Stockholder and each Seller
Stockholder has agreed not to withdraw his Shares unless the Offer is extended
beyond December 31, 1995, or unless the Merger Agreement is terminated.
The Stock Tender Agreements provide that a Seller Stockholder will not,
except pursuant to the Offer, assign, sell, transfer or otherwise dispose of,
including by way of pledge, hypothecation or grant of any security interest, any
of the Shares, or enter into any direct or indirect agreement or arrangement to
effect any of the foregoing, on or before December 31, 1995, or, if earlier, the
termination of the Merger Agreement or the termination of the Offer in
accordance with their respective terms; provided, however, that a Seller
Stockholder may transfer Shares to a trust created by such Seller Stockholders
provided the trustee of the trust agrees to be bound by the Stock Tender
Agreement to the same extent as the Seller Stockholders.
The Stock Tender Agreements provide that, prior to the earliest of the
Effective Time, the termination of the Merger Agreement in accordance with its
terms or December 31, 1995, the Seller Stockholders shall not, directly or
indirectly, solicit, initiate or encourage (including by way of furnishing
information) any Acquisition Transaction or negotiate, explore or otherwise
communicate with any third party (other than Parent or its affiliates) regarding
any Acquisition Transaction.
In addition, the Stock Tender Agreements provide that if Parent, the
Purchaser or any subsidiary of Parent purchases Shares pursuant to the Offer and
does not acquire a majority of the outstanding Shares pursuant to the Offer,
Parent will pay promptly to the Seller Stockholders in immediately available
funds, in the event that it, directly or indirectly, disposes of the Shares
within 12 months of the date of the Stock Tender Agreements, any amount realized
on such disposition of Shares in excess of the amount previously paid to the
Seller Stockholders pursuant to the Offer.
Purchaser has entered into letter agreements similar to the Stock Tender
Agreements with three other individuals who are directors and stockholders of
the Company, except that such letter agreements do not require such individuals
to tender their Shares pursuant to the Offer.
APPRAISAL RIGHTS AND OTHER MATTERS. Holders of Shares do not have appraisal
rights as a result of the Offer. However, if the Merger is consummated, holders
of Shares will have certain rights pursuant to the provisions of Section 262 of
the DGCL to dissent and demand appraisal of, and to receive payment in cash of
the fair value of, their Shares. If the statutory procedures were complied with,
such rights could lead to a judicial determination of the fair value required to
be paid in cash to such dissenting holders for their Shares. Any such judicial
determination of the fair value of
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Shares could be based upon considerations other than or in addition to the price
per Share in the Offer or the market value of the Shares, including asset values
and the investment value of the Shares. The value so determined could be more or
less than the price per Share in the Offer or the Merger Consideration. In
Weinberger v. UOP, Inc., the Delaware Supreme Court stated, among other things,
that "proof of value by any techniques or methods which are generally considered
acceptable in the financial community and otherwise admissible in court" should
be considered in an appraisal proceeding. Therefore, the value so determined in
any appraisal proceeding could be the same, more or less than the purchase price
per Share in the Offer or the Merger Consideration.
In addition, several decisions by Delaware courts have held that, in certain
circumstances, a controlling stockholder of a company involved in a merger has a
fiduciary duty to other stockholders which requires that the merger be fair to
such other stockholders. In determining whether a merger is fair to minority
stockholders, Delaware courts have considered, among other things, the type and
amount of consideration to be received by the stockholders and whether there was
fair dealing among the parties. The Delaware Supreme Court stated in Weinberger
and Rabkin v. Philip A. Hunt Chemical Corp. that the remedy ordinarily available
to minority stockholders in a cash-out merger is the right to appraisal
described above. However, a damages remedy or injunctive relief may be available
if a merger is found to be the product of unfairness, including fraud,
misrepresentation or other misconduct.
If any holder of Shares who demands appraisal under Section 262 of the DGCL
fails to perfect, or effectively withdraws or loses his right to appraisal, as
provided in the DGCL, the Shares of such stockholder will be converted into the
Merger Consideration in accordance with the Merger Agreement. A stockholder may
withdraw his demand for appraisal by delivery to Parent of a written withdrawal
of his demand for appraisal and acceptance of the Merger.
FAILURE TO FOLLOW THE STEPS REQUIRED BY SECTION 262 OF THE DGCL FOR
PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
The Commission has adopted Rule 13e-3 under the Exchange Act, which is
applicable to certain "going private" transactions and which may under certain
circumstances be applicable to the Merger. However, Rule 13e-3 would be
inapplicable if the Merger is consummated within one year after the purchase of
the Shares pursuant to the Offer. If applicable, Rule 13e-3 requires, among
other things, that certain financial information concerning the fairness of the
proposed transaction and the consideration offered to minority stockholders in
such transaction be filed with the Commission and disclosed to stockholders
prior to the consummation of the transaction.
PLANS FOR THE COMPANY. It is currently expected that, following consummation
of the Offer, initially the business and operations of the Company will, except
as set forth in this Offer to Purchase, be continued by the Company
substantially as they are currently being conducted. Parent will continue to
evaluate the business and operations of the Company during the pendency of the
Offer and after the consummation of the Offer and the Merger, and will take such
actions as it deems appropriate under the circumstances then existing. Parent
intends to seek additional information about the Company during this period.
Thereafter, Parent intends to review such information as part of a comprehensive
review of the Company's business, operations, capitalization and management with
a view to maximizing the Company's potential in conjunction with Parent's
businesses.
Except as indicated in this Offer to Purchase, Parent does not have any
present plans or proposals that relate to or would result in an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving the Company or any subsidiary, a sale or transfer of a material amount
of assets of the Company or any subsidiary or any material change in the
Company's capitalization or dividend policy or any other material changes in the
Company's corporate structure or business, or the composition of the Board or
the Company's management.
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11. SOURCE AND AMOUNT OF FUNDS. The total amount of funds required by the
Purchaser to purchase all of the Shares (other than Shares owned by Parent)
pursuant to the Offer and the Merger and to pay related fees and expenses is
estimated to be approximately $199 million. The Purchaser expects to obtain such
funds from Parent. On May 5, 1995, Parent had approximately $45 million in cash
available for the purchase of Shares pursuant to the Offer and the Merger. The
balance of the funds required will be satisfied through borrowings under
Parent's Section 4(2) commercial paper program. Commercial paper issued under
such program is unsecured and bears interest at prevailing market rates.
On May 5, 1995, Parent had approximately $176.5 million in commercial paper
outstanding. Commercial paper issued by Parent is sold by two dealers. Parent
generally is not informed of the identities of persons who have purchased or who
have executed commitments to purchase commercial paper. Parent's commercial
paper program is supported by a five-year $360 million committed revolving
credit agreement and by commitments for a 364-day $200 million bank facility,
with an option to extend at maturity for one year.
Parent expects that the borrowings under the commercial paper program to
purchase the Shares pursuant to the Offer will be repaid either through
internally generated funds (which may include funds generated by the Company),
asset sales, issuances of additional commercial paper, or public offerings of
securities of the Parent under Parent's $300 million universal shelf
registration statement, depending on a variety of factors including interest
rates and other business and economic conditions at the time of repayment. No
decisions have been made at this time.
12. POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE SHARES; NASDAQ/NMS
QUOTATION; EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS. The purchase of Shares
pursuant to the Offer will reduce the number of holders of Shares and the number
of Shares that might otherwise trade publicly. Consequently, depending upon the
number of Shares purchased and the number of remaining holders of Shares, the
purchase of Shares pursuant to the Offer may adversely affect the liquidity and
market value of the remaining Shares held by the public.
Depending upon the number of Shares purchased pursuant to the Offer, the
Shares may no longer meet the requirements of the NASD for continued inclusion
in NASDAQ/NMS (the top tier market of the NASDAQ market), which require that an
issuer have at least 200,000 publicly held shares, held by at least 400
stockholders or 300 stockholders of round lots, with a market value of
$1,000,000, and have net tangible assets of at least either $2,000,000 or
$4,000,000, depending on profitability levels during the issuer's four most
recent fiscal years. If these standards are not met, the Shares might
nevertheless continue to be included in NASDAQ with quotations published in the
NASDAQ "additional list" or in one of the "local lists," but if the number of
holders of the Shares were to fall below 300, or if the number of publicly held
Shares were to fall below 100,000 or there were not at least two registered and
active market makers for the Shares, the NASD's rules provide that the Shares
would no longer be "qualified" for NASDAQ reporting and NASDAQ would cease to
provide any quotations. Shares held directly or indirectly by directors,
officers or beneficial owners of more than 10% of the Shares are not considered
as being publicly held for this purpose. According to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994, as of March 13, 1995,
there were 903 holders of record of Shares. If, as a result of the purchase of
Shares pursuant to the Offer, the Shares no longer meet the requirements of the
NASD for continued inclusion in NASD or NASDAQ/NMS and the Shares are no longer
included in NASDAQ or NASDAQ/NMS, as the case may be, the market for Shares
could be adversely affected.
In the event that the Shares no longer meet the requirements of the NASDAQ
for quotation through NASDAQ and the Shares are no longer included in NASDAQ, it
is possible that the Shares would continue to trade in the over-the-counter
market and that price quotations would be reported by
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other sources. The extent of the public market for the Shares and the
availability of such quotations would, however, depend upon the number of
holders of Shares remaining at such time, the interest in maintaining a market
in such Shares on the part of securities firms, the possible termination of
registration of such Shares under the Exchange Act, as described below, and
other factors. The Purchaser cannot predict whether or to what extent the
reduction in the number of Shares that might otherwise trade publicly would have
an adverse or beneficial effect on the market price for or marketability of the
Shares or whether it would cause future prices to be greater or less than the
Offer price.
The Shares are currently registered under Section 12(g) of the Exchange Act.
Registration of the Shares under the Exchange Act may be terminated upon
application by the Company to the Commission if the Shares are neither listed on
a national securities exchange nor held by 300 or more holders of record.
Termination of registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company to
its stockholders and to the Commission and could make certain provisions of the
Exchange Act no longer applicable to the Company, such as the short-swing profit
recovery provisions of Section 16(b) of the Exchange Act, the requirement of
furnishing a proxy statement pursuant to Section 14(a) of the Exchange Act in
connection with stockholders' meetings and the related requirement of furnishing
an annual report to stockholders and the requirements of Rule 13e-3 under the
Exchange Act with respect to "going private" transactions. Furthermore, the
ability of "affiliates" of the Company and persons holding "restricted
securities" of the Company to dispose of such securities pursuant to Rule 144 or
144A promulgated under the Securities Act of 1933, as amended, may be impaired
or eliminated.
The Purchaser intends to seek to cause the Company to terminate the
registration of the Shares under the Exchange Act as soon after the completion
of the Offer as the requirements for such termination are met. If registration
of the Shares is not terminated prior to the Merger, the registration of the
Shares under the Exchange Act will be terminated following consummation of the
Merger.
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve Board"),
which has the effect, among other things, of allowing brokers to extend credit
on the collateral of the Shares. Depending upon factors similar to those
described above regarding listing and market quotations, it is possible that,
following the Offer, the Shares would no longer constitute "margin securities"
for the purposes of the margin regulations of the Federal Reserve Board and
therefore could no longer be used as collateral for loans made by brokers. If
registration of Shares under the Exchange Act were terminated, the Shares would
no longer be "margin securities" or be eligible for quotation on NASDAQ.
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13. DIVIDENDS AND DISTRIBUTIONS. The Merger Agreement provides that the
Company shall not, between the date of the Merger Agreement and the effective
time of the Merger, without the prior written consent of Parent, (a) authorize
for issuance, issue, sell, deliver, grant any options for, or otherwise agree or
commit to issue, sell or deliver any shares of any class of capital stock of the
Company or any securities convertible into shares of any class of capital stock
of the Company, except pursuant to and in accordance with the terms of currently
outstanding options; or (b) split, combine or reclassify any shares of capital
stock of the Company, declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in
respect of capital stock of the Company or purchase, redeem or otherwise acquire
any shares of the Company's capital stock or that of any of the Company's
subsidiaries. See Section 10. If, however, the Company should, during the
pendency of the Offer, (i) split, combine or otherwise change the Shares or its
capitalization, (ii) acquire or otherwise cause a reduction in the number of
outstanding Shares or (iii) issue or sell any additional Shares (other than
pursuant to outstanding options to purchase Shares), shares of any other class
or series of capital stock, other voting securities or any securities
convertible into, or options, rights, or warrants, conditional or otherwise, to
acquire, any of the foregoing, then, without prejudice to the Purchaser's rights
under Section 14, the Purchaser may (subject to the provisions of the Merger
Agreement) make such adjustments to the purchase price and other terms of the
Offer (including the number and type of securities to be purchased) as it deems
appropriate to reflect such split, combination or other change, acquisition,
reduction, issuance or sale.
If, on or after May 10, 1995, the Company should declare or pay any dividend
on the Shares or make any other distribution (including the issuance of
additional shares of capital stock pursuant to a stock dividend or stock split,
the issuance of other securities or the issuance of rights for the purchase of
any securities) with respect to the Shares that is payable or distributable to
stockholders of record on a date prior to the transfer to the name of the
Purchaser or its nominee or transferee on the Company's stock transfer records
of the Shares purchased pursuant to the Offer then, without prejudice to the
Purchaser's rights under Section 14, (i) the purchase price per Share payable by
the Purchaser pursuant to the Offer will be reduced (subject to the Merger
Agreement) to the extent any such dividend or distribution is payable in cash
and (ii) any non-cash dividend, distribution or right shall be received and held
by the tendering stockholder for the account of the Purchaser and will be
required to be promptly remitted and transferred by each tendering stockholder
to the Depositary for the account of the Purchaser, accompanied by appropriate
documentation of transfer. Pending such remittance and subject to applicable
law, the Purchaser will be entitled to all the 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
determined by the Purchaser in its sole discretion.
14. CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provision of
the Offer and in addition to (and not in limitation of) the Purchaser's rights
to extend and amend the Offer at any time in its sole discretion, the Purchaser
shall not be required to accept for payment or pay for any tendered Shares, and
may postpone the acceptance for payment of or payment for tendered Shares and
may terminate or amend the Offer if (i) the Minimum Condition shall not have
been satisfied, (ii) any applicable waiting period under the HSR Act shall not
have expired or been terminated prior to the expiration of the Offer, (iii) any
material litigation with respect to the Offer or the Merger shall not have been
finally settled, dismissed or withdrawn or (iv) any of the following shall occur
and be continuing:
(a) there shall be any pending action or proceeding, or any statute,
rule, regulation, legislation, interpretation, judgment, order or injuction
shall be proposed, sought, enacted, promulgated, entered, enforced, amended
or made applicable to the Purchaser or any of its affiliates or to the Offer
or the Merger by any domestic or foreign government or governmental,
regulatory or administrative authority or agency or by or before any court
or tribunal, domestic or foreign (i) challenging the acquisition by the
Purchaser or any affiliate of the Purchaser, in whole or in part, of the
Shares, seeking, directly or indirectly, to restrain, delay, prohibit or
make more costly the making or consummation of the Offer or the Merger or
seeking to obtain any damages or
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otherwise, directly or indirectly, relating to the transactions contemplated
by the Offer or the Merger, (ii) seeking to prohibit, restrict or limit the
ownership or operation by the Purchaser or any of its affiliates of all or
any portion of its or the Company's business or assets, or to compel the
Purchaser or any of its affiliates to dispose of or hold separate all or any
portion of its or the Company's business or assets as a result of the Offer
or the Merger, (iii) making the purchase of, or payment for, some or all of
the Shares illegal, (iv) resulting in a material delay in the ability of the
Purchaser to accept for payment or pay for some or all of the Shares, (v)
seeking to impose limitations on the ability of the Purchaser or any of its
affiliates effectively to acquire, hold or exercise rights of ownership of
Shares now owned or hereafter purchased or to be purchased, including,
without limitation, the right to vote, or act by consent with respect to,
such Shares on any matter properly presented to the stockholders of the
Company, (vi) imposing any limitations on the ability of the Purchaser or
any of its affiliates effectively to control in any material respect the
business and operations of the Company, (vii) seeking or causing any
material diminution in the benefits expected to be derived by the Purchaser
or any of its affiliates as a result of the Offer or the Merger, or (viii)
which otherwise would materially and adversely affect the Company and its
subsidiaries taken as a whole;
(b) any change (or any development involving a prospective change) shall
have occurred or be threatened in connection with the business, assets,
liabilities, capitalization, stockholders' equity, financial condition,
licenses, franchises, results of operations or prospects of the Company or
any of its subsidiaries which would be materially adverse to the Company and
its subsidiaries taken as a whole, or the Purchaser shall have become aware
of any fact that would have material adverse significance with respect to
the Company and its subsidiaries taken as a whole;
(c) there shall have occurred (i) any general suspension of trading in,
or limitation on prices for, securities on any national securities exchange,
or on NASDAQ or otherwise in the over-the-counter market, (ii) the
declaration of a banking moratorium or any suspension of payments in respect
of banks in the United States, (iii) the commencement of a war, armed
hostilities or other international or national calamity directly or
indirectly involving the United States, (iv) any material limitation
(whether or not mandatory) by any governmental authority or agency, or any
other event which would significantly affect the extension of credit by
banks or other lending institutions in the United States, (v) an aggregate
decline since May 9, 1995 of 15% or more in the Standard & Poor's 500 Index,
(vi) any imposition of currency controls in the United States or a material
change in exchange rates or a suspension of, or material limitation on, the
markets therefor, or (vii) in the case of any of the foregoing existing at
the time of commencement of the Offer, any material worsening or
acceleration thereof;
(d) the Purchaser or any of its affiliates shall have reached an
agreement or understanding with the Company providing for amendment or
termination of the Offer;
(e) it shall have been publicly disclosed after May 10, 1995 or the
Purchaser shall have learned that (i) any person (including the Company or
any of its subsidiaries or affiliates), entity or "group" (as defined in
Section 13(d)(3) of the Exchange Act) shall have acquired or proposed to
acquire more than 15% of any class or series of capital stock of the Company
(including the Shares) or its subsidiaries or shall have been granted any
option or right to acquire more than 15% of any class or series of capital
stock of the Company (including the Shares) or its subsidiaries, other than
acquisitions of Shares for bona fide arbitrage positions, or (ii) any such
person, entity or group which has publicly disclosed any such ownership of
or right to acquire more than 15% of any class or series of capital stock of
the Company (including the Shares) or its subsidiaries prior to May 1, 1995
shall after May 10, 1995 have acquired or proposed to acquire additional
shares of any class or series of capital stock of the Company (including the
Shares) or its subsidiaries constituting more than 1% of such class or
series or shall have been granted any option or right to acquire more than
1% of such class or series of capital stock of the Company (including the
Shares) or its subsidiaries or (iii) any group shall have been formed which
beneficially owns more than 15% of any class or series of capital stock of
the Company (including the Shares) or its subsidiaries;
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(f) the Company shall have failed to comply in any material respect with
its obligations and covenants contained in the Merger Agreement, or the
representations and warranties (without regard to any references to
materiality or Material Adverse Effect contained in any such representations
or warranties) made by the Company in the Merger Agreement shall have failed
to be true, except for such failures which, individually or in the
aggregate, would not have a Material Adverse Effect, and which, individually
or in the aggregate, would not materially adversely affect the rights of
Parent and the Purchaser to consummate the transactions contemplated by the
Merger Agreement; or
(g) the Merger Agreement shall be terminated in accordance with its
terms.
The foregoing conditions are for the sole benefit of the Purchaser and may
be asserted by the Purchaser or any of its affiliates or may be waived in whole
or in part at any time and from time to time in its sole discretion. The failure
to exercise any of the foregoing rights shall not be deemed a waiver of any
right, and each right shall be deemed a continuing right which may be asserted
at any time and from time to time for so long as such right exists.
15. CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS.
General. Except as set forth in this Offer to Purchase, based on its review
of publicly available filings by the Company with the Commission and other
publicly available information regarding the Company, neither Parent nor the
Purchaser is aware of any licenses or regulatory permits that appear to be
material to the business of the Company and its subsidiaries, taken as a whole,
and that might be adversely affected by the Purchaser's acquisition of Shares
(and the indirect acquisition of the stock of the Company's subsidiaries) as
contemplated herein, or any filings, approvals or other actions by or with any
domestic, foreign or supranational governmental authority or administrative or
regulatory agency that would be required for the acquisition or ownership of the
Shares (or the indirect acquisition of the stock of the Company's subsidiaries)
by the Purchaser pursuant to the Offer as contemplated herein. Should any such
approval or other action be required, it is presently contemplated such approval
or other action would be sought except as described below under "State Takeover
Laws." Should any such approval or other action be required there can be no
assurance that any such approval or action, if needed, would be obtained without
substantial conditions or that adverse consequences might not result to the
Company's or its subsidiaries' businesses, or that certain parts of the
Company's, Parent's, the Purchaser's or any of their respective subsidiaries'
businesses might not have to be disposed of or held separate or other
substantial conditions complied with in order to obtain such approval or action
or in the event that such approvals were not obtained or such actions were not
taken. The Purchaser's obligation to purchase and pay for Shares is subject to
certain conditions, including conditions with respect to litigation and
governmental actions. See the Introduction and Section 14 for a description
thereof.
State Takeover Laws. Section 203 of the DGCL prevents an "interested
stockholder" (generally a person who owns or has the right to acquire 15% or
more of a corporation's outstanding voting stock, or an affiliate or associate
thereof) from engaging in a "business combination" (defined to include mergers
and certain other transactions) with a Delaware corporation for a period of
three years following the date such person became an interested stockholder
unless, among other things, prior to such date the board of directors of the
corporation approved either the business combination or the transaction in which
the interested stockholder became an interested stockholder. Prior to the
execution of the Merger Agreement and the Stock Tender Agreements and the
similar letter agreements, the Board by unanimous vote of all directors present
approved and adopted the Merger Agreement, the Stock Tender Agreements and the
similar letter agreements with the purpose and the effect that the limitations
of Section 203 of the DGCL do not apply to Parent and the Purchaser.
As the Company's executive offices and principal place of business are
located in the State of Wisconsin, the Company is subject to Chapter 552 of the
Wisconsin Statutes (the "Wisconsin Corporate Takeover Law"). The Wisconsin
Corporate Takeover Law makes it unlawful for any person to make a takeover offer
involving a target company in Wisconsin, or to acquire any equity securities of
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a target company pursuant to the offer, unless a registration statement has been
filed with the Wisconsin commissioner of securities 10 days prior to the
commencement of the takeover offer or such takeover offer is exempted by rule or
order of the commissioner. The Wisconsin Corporate Takeover Law also imposes
certain reporting and filing requirements on persons making a takeover offer,
imposes certain substantive requirements on the terms of any takeover offer and
makes unlawful certain fraudulent and deceptive practices, all of which
provisions may be applicable to the Offer.
Various other 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 substantial
assets, stockholders, principal executive offices or principal places of
business therein. To the extent that certain provisions of certain of these
state takeover statutes purport to apply to the Offer or the Merger, the
Purchaser believes that such laws conflict with federal law and constitute an
unconstitutional burden on interstate commerce. In 1982, the Supreme Court of
the United States, in Edgar v. Mite Corp., invalidated on constitutional grounds
the Illinois Business Takeovers Statute, which as a matter of state securities
law, made takeovers of corporations meeting certain requirements more difficult,
and the reasoning in such decision is likely to apply to certain other state
takeover statutes. In 1987, however, in CTS Corp. v. Dynamics Corp. of America,
the Supreme Court of the United States held that the State of Indiana could, as
a matter of corporate law and, in particular, those aspects of corporate law
concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without the prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions. Subsequently, in TLX Acquisition Corp. v. Telex
Corp., a Federal district court in Oklahoma ruled that the Oklahoma statutes
were unconstitutional insofar as they apply to corporations incorporated outside
Oklahoma in that they would subject such corporations to inconsistent
regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a Federal district
court in Tennessee ruled that four Tennessee takeover statutes were
unconstitutional as applied to corporations incorporated outside Tennessee. This
decision was affirmed by the United States Court of Appeals for the Sixth
Circuit. In December 1988, a Federal district court in Florida held in Grand
Metropolitan PLC v. Butterworth that the provisions of the Florida Affiliated
Transactions Act and Florida Control Share Acquisition Act were unconstitutional
as applied to corporations incorporated outside of Florida.
The Purchaser has not attempted to comply with any state takeover statutes
in connection with the Offer or the Merger, except for the Wisconsin Corporate
Takeover Law. The Purchaser reserves the right to challenge the validity or
applicability of any state law allegedly applicable to the Offer or the Merger
and nothing in this Offer to Purchase nor any action taken in connection
herewith is intended as a waiver of that right. In the event that it is asserted
that one or more takeover statutes apply to the Offer or the Merger, and it is
not determined by an appropriate court that such statute or statutes do not
apply or are invalid as applied to the Offer or the Merger, as applicable, the
Purchaser may be required to file certain documents with, or receive approvals
from, the relevant state authorities, and the Purchaser might be unable to
accept for payment or purchase Shares tendered pursuant to the Offer or be
delayed in continuing or consummating the Offer. In such case, the Purchaser may
not be obligated to accept for purchase, or pay for, any Shares tendered. See
Section 14.
Antitrust. Under the HSR Act, and the rules and regulations that have been
promulgated thereunder by the Federal Trade Commission (the "FTC"), certain
acquisition transactions may not be consummated until certain information and
documentary material has been furnished for review by the Antitrust Division of
the Department of Justice (the "Antitrust Division") and the FTC and certain
waiting period requirements have been satisfied. The acquisition of Shares
pursuant to the Offer and the Merger is subject to such requirements.
Under the provisions of the HSR Act applicable to the Offer and the Merger,
the purchase of Shares pursuant to the Offer and the Merger may not be
consummated until the expiration of a 15-calendar-day waiting period following
the filing of certain required information and documentary material with respect
to the Offer with the FTC and the Antitrust Division, unless such waiting period
is earlier terminated by the FTC and the Antitrust Division. The Purchaser has
filed on May 11, 1995, a
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Premerger Certification and Report Form with the Antitrust Division and the FTC
in connection with the purchase of Shares pursuant to the Offer and the Merger
under the HSR Act, and the required waiting period with respect to the Offer and
the Merger will expire at 11:59 p.m., New York City time, on Friday, May 26,
1995, unless earlier terminated by the Antitrust Division or the FTC or the
Purchaser receives a request for additional information or documentary material
prior thereto. If, within such 15-calendar-day waiting period, either the FTC or
the Antitrust Division were to request additional information or documentary
material from the Purchaser, the waiting period with respect to the Offer and
the Merger would be extended for an additional period of 10 calendar days
following the date of substantial compliance with such request by the Purchaser.
Only one extension of the waiting period pursuant to a request for additional
information is authorized by the rules promulgated under the HSR Act.
Thereafter, the waiting period could be extended only by court order or with the
consent of the Purchaser. The additional 15-calendar-day waiting period may be
terminated sooner by the FTC or the Antitrust Division. Although the Company is
required to file certain information and documentary material with the Antitrust
Division and the FTC in connection with the Offer, neither the Company's failure
to make such filings nor a request made to the Company from the Antitrust
Division or the FTC for additional information or documentary material will
extend the waiting period with respect to the purchase of Shares pursuant to the
Offer and the Merger.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the acquisition of Shares by the
Purchaser pursuant to the Offer and the Merger. At any time before or after the
Purchaser's purchase of Shares, the Antitrust Division or the FTC could take
such action under the antitrust laws as either deems necessary or desirable in
the public interest, including seeking to enjoin the purchase of Shares pursuant
to the Offer and the Merger, the divestiture of Shares purchased pursuant to the
Offer or the divestiture of substantial assets of the Purchaser, the Company or
any of their respective subsidiaries or affiliates. Private parties as well as
state attorneys general may also bring legal actions under the antitrust laws
under certain circumstances. See Section 14.
Federal Reserve Board Regulations. The margin regulations promulgated by the
Federal Reserve Board place restrictions on the amount of credit that may be
extended for the purpose of purchasing margin stock (including the Shares) if
such credit is secured directly or indirectly by margin stock. Parent and the
Purchaser believe that the financing of the acquisition of the Shares will not
be subject to the margin regulations.
Other Foreign Approvals. The Company conducts business in a number of
foreign countries and jurisdictions. In connection with the acquisition of the
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 the Company's operations conducted in such countries
and jurisdictions as a result of the acquisition of the Shares pursuant to the
Offer or the Merger. There can be no assurance that the Purchaser will be able
to cause the Company or its subsidiaries to satisfy or comply with such laws or
that compliance or non-compliance will not have adverse consequences for the
Company or any subsidiary after purchase of the Shares pursuant to the Offer or
the Merger.
16. CERTAIN FEES AND EXPENSES. Lazard Freres & Co. LLC ("Lazard") is acting
as Dealer Manager in connection with the Offer and as financial advisor to
Parent and the Purchaser in connection with the proposed acquisition of the
Company. In consideration of Lazard's services in connection with the Merger,
Parent and the Purchaser have agreed to pay Lazard a fee equal to 0.83% of the
"Aggregate Consideration" (as defined in the letter agreement dated March 9,
1995, between Lazard and Parent) paid in the Offer and the Merger, payable upon
the earlier of the acquisition by Parent or the Purchaser of a majority of the
Shares and the consummation of the acquisition of the Company by Parent or the
Purchaser. In addition, Parent and the Purchaser have agreed to reimburse Lazard
for its expenses, including fees and disbursements of its counsel, and have
jointly and severally agreed to indemnify Lazard and certain related persons
against certain liabilities and expenses,
35
<PAGE>
including certain liabilities under the federal securities laws. Lazard has in
the past provided, and is currently providing, investment banking and financial
advisory services to Parent, for which Lazard receives customary fees.
D.F. King & Co., Inc. has been retained by the Purchaser as Information
Agent in connection with the Offer. The Information Agent may contact holders of
Shares by mail, telephone, telex, telegraph and personal interview and may
request brokers, dealers and other nominee stockholders to forward material
relating to the Offer to beneficial owners of Shares. The Purchaser will pay the
Information Agent reasonable and customary compensation for all such services in
addition to reimbursing the Information Agent for its reasonable out-of-pocket
expenses in connection therewith. The Purchaser has agreed to indemnify the
Information Agent against certain liabilities and expenses in connection with
the Offer, including certain liabilities under the federal securities laws.
In addition, First Chicago Trust Company of New York has been retained as
the Depositary. The Purchaser will pay the Depositary reasonable and customary
compensation for its services in connection with the Offer, will reimburse the
Depositary for its reasonable out-of-pocket expenses in connection therewith and
will indemnify the Depositary against certain liabilities and expenses in
connection therewith, including certain liabilities under the federal securities
laws.
Except as set forth above, neither Parent nor the Purchaser will pay any
fees or commissions to any broker, dealer or other person (other than the
Information Agent and the Dealer Manager) for soliciting tenders of Shares
pursuant to the Offer. Brokers, dealers, commercial banks and trust companies
and other nominees will, upon request, be reimbursed by Parent or the Purchaser
for customary clerical and mailing expenses incurred by them in forwarding
offering materials to their customers.
17. MISCELLANEOUS. The Offer is not being made to, nor will tenders be
accepted from or on behalf of, holders of Shares in any jurisdiction in which
the making of the Offer or acceptance thereof would not be in compliance with
the laws of such jurisdiction. However, the Purchaser may, in its discretion,
take such action as it may deem necessary to make the Offer in any jurisdiction
and extend the Offer to holders of Shares in such jurisdictions.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of the Purchaser by the Dealer Manager or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
Parent and the Purchaser have filed with the Commission a Schedule 14D-1,
together with exhibits, pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. Such Schedule 14D-1
and any amendments thereto, including exhibits, may be examined and copies may
be obtained from the office of the Commission in the same manner as described in
Section 7 with respect to information concerning the Company, except that they
will not be available at the regional offices of the Commission.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR THE PURCHASER NOT CONTAINED IN THIS OFFER
TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, ANY SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Neither the delivery of the Offer to Purchase nor any purchase pursuant to the
Offer shall, under any circumstances, create any implication that there has been
no change in the affairs of Parent, the Purchaser, the Company or any of their
respective subsidiaries since the date as of which information is furnished or
the date of this Offer to Purchase.
G.S. NEWCO, INC.
May 16, 1995
36
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF PARENT AND THE PURCHASER
PARENT
Set forth below are the name, business address and present principal
occupation or employment, and material occupations, positions, offices or
employments for the past five years, of each director and executive officer of
Parent. Except as otherwise noted, the business address of each such person is
General Signal Corporation, One High Ridge Park, P.O. Box 10010, Stamford, CT
06904, and such person is a United States citizen. In addition, except as
otherwise noted, each director and executive officer of Parent has been employed
in his or her present principal occupation listed below during the last five
years. Directors of Parent are indicated by an asterisk.
<TABLE><CAPTION>
PRINCIPAL OCCUPATION AND MATERIAL
OCCUPATIONS, POSITIONS, OFFICES OR
NAME AND BUSINESS ADDRESS EMPLOYMENT FOR THE PAST FIVE YEARS
- --------------------------------------------- ---------------------------------------------
<S> <C>
Ralph E. Bailey*............................. Chairman of United Meridian Corporation, a
publicly traded company engaged in making
equity investments in the oil and gas
industry. Chairman and Chief Executive
Officer of American Bailey Corporation, a
private holding company, since April 1987.
Also a director of The Williams Companies,
Inc. and Rowan Companies, Inc.
Robert N. Brooks............................. Vice President--Manufacturing since March
1995. Previously, held various management
positions since joining G.S. Building
Systems Corporation, a unit of Parent, in
1974.
Van C. Campbell*............................. Vice Chairman for Finance and Administration
since 1983 and a director of Corning
Incorporated. Also a director of Armstrong
World Industries, Inc., Corning
International Corporation and Dow Corning
Corporation.
Edmund M. Carpenter*......................... Chairman and Chief Executive Officer since
May 1988. Also a director of Campbell Soup
Company, Dana Corporation and Texaco Inc.
George Falconer.............................. Vice President--Human Resources since October
1986.
Ronald E. Ferguson*.......................... Chairman and Chief Executive Officer since
1987 and President of General Re Corporation
from 1983 to March 1995. Also a director of
Colgate-Palmolive Company.
Nino J. Fernandez............................ Vice President--Investor Relations since May
1987.
Joel S. Friedman............................. Senior Vice President--Operations since March
1987.
Philip A. Goodrich........................... Vice President--Corporate Development since
December 1991. Previously, Director of
Corporate Development since May 1989.
John P. Horgan*.............................. Private investor since 1971. Also a director
of DTX Corporation.
</TABLE>
S-1
<PAGE>
<TABLE><CAPTION>
PRINCIPAL OCCUPATION AND MATERIAL
OCCUPATIONS, POSITIONS, OFFICES OR
NAME AND BUSINESS ADDRESS EMPLOYMENT FOR THE PAST FIVE YEARS
- --------------------------------------------- ---------------------------------------------
<S> <C>
C. Robert Kidder*............................ Chairman and Chief Executive Officer of
Borden, Inc. since January 1995. Chairman of
the Board of Duracell International, Inc.
from October 1994 to January 1995. Chairman
of the Board and Chief Executive Officer of
Duracell International, Inc. from April
1992 to October 1994. Chairman of the
Board, President and Chief Executive
Officer of Duracell International, Inc.
from August 1991 until April 1992.
President and Chief Executive Officer of
Duracell International, Inc. from June 1988
until August 1991. Also a director of Dean
Witter, Discover & Co. and Duracell
International, Inc.
Richard J. Kogan*............................ President and Chief Operating Officer since
January 1986 and a director of Schering-
Plough Corporation. Also a director of
Atlantic Reinsurance Company, Centennial
Insurance Company and National Westminster
Bancorp, Inc. and a Trustee of the Atlantic
Mutual Insurance Company.
Michael D. Lockhart*......................... President and Chief Operating Officer since
October 1994. Previously, Vice President
and General Manager from 1992 to 1994 of
General Electric's Commercial Engines and
Services division, and Vice President and
General Manager of Transportation Systems
from 1989 to 1992.
Terence D. Martin............................ Executive Vice President and Chief Financial
Officer since February 1995. Previously,
Chief Financial Officer of American
Cyanamid Company since 1991 and Treasurer
since 1988.
Terry J. Mortimer............................ Vice President and Controller since May 1990.
Previously Director--Finance and Chief
Accountant for Apple Computer since June
1988.
Roland W. Schmitt*........................... President Emeritus since July 1993 and
President of Rensselaer Polytechnic Institute
from March 1988 to July 1993. Also a member
and former Chairman of the National Science
Board and former Councillor of the National
Academy of Engineering.
John R. Selby*............................... Former Chairman from 1986 to November 1993
and Chief Executive Officer from 1971 to
November 1993 of SPS Technologies, Inc.
Also a director of Berwind Industries, Inc.
Edgar J. Smith, Jr........................... Vice President, General Counsel, and
Secretary since April 1984, and Vice
President and General Counsel since January
1980.
Thomas E. Taylor............................. Vice President--Taxes since September 1993.
Previously with Elf Aquitaine, Inc. as Vice
President--Taxes since 1985.
</TABLE>
S-2
<PAGE>
<TABLE><CAPTION>
PRINCIPAL OCCUPATION AND MATERIAL
OCCUPATIONS, POSITIONS, OFFICES OR
NAME AND BUSINESS ADDRESS EMPLOYMENT FOR THE PAST FIVE YEARS
- --------------------------------------------- ---------------------------------------------
<S> <C>
Julian B. Twombly............................ Vice President and Treasurer since December
1991. Prior to joining Parent associated
with United Dominion Industries, Ltd. since
1974, most recently as Senior Vice
President and Treasurer.
</TABLE>
THE PURCHASER
Set forth below are the name, business address and present position with the
Purchaser, principal occupation or employment, and material occupations,
positions, offices or employments for the past five years, of each director and
executive officer of the Purchaser. Each such person is a United States citizen.
Except as otherwise noted, the business address of each such person is G.S.
Newco, Inc., c/o General Signal Corporation, One High Ridge Park, P.O. Box
10010, Stamford, CT 06904, and such person is a United States citizen. In
addition, except as otherwise noted, each director and executive officer of the
Purchaser has been employed in his or her present principal occupation listed
below during the last five years. Directors of the Purchaser are indicated by an
asterisk.
<TABLE><CAPTION>
PRINCIPAL OCCUPATION AND MATERIAL
OCCUPATIONS, POSITIONS, OFFICES OR
NAME AND BUSINESS ADDRESS EMPLOYMENT FOR THE PAST FIVE YEARS
- --------------------------------------------- ---------------------------------------------
<S> <C>
Edmund M. Carpenter*......................... Chairman and Chief Executive Officer of the
Purchaser. For additional information
please see Schedule I--Parent above.
Philip A. Goodrich........................... Vice President of the Purchaser. For
additional information please see Schedule
I--Parent above.
Michael D. Lockhart*......................... President and Chief Operating Officer of the
Purchaser. For additional information
please see Schedule I--Parent above.
Terence D. Martin*........................... Executive Vice President and Chief Financial
Officer of the Purchaser. For additional
information please see Schedule I--Parent
above.
Edgar J. Smith, Jr.*......................... Vice President and Secretary of the
Purchaser. For additional information please
see Schedule I--Parent above.
</TABLE>
S-3
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents should be sent or delivered by each stockholder
of the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary at one of its addresses set forth below:
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Hand or Overnight
By Mail: Delivery:
Tenders & Exchanges Tenders & Exchanges
Suite 2559-BPT Suite 4680-BPT
P.O. Box 4660 14 Wall Street,
Jersey City, 8th Floor
New Jersey 07303-2559 New York, New York 10005
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Additional copies of this Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery and other related materials may
be obtained from the Information Agent or the Dealer Manager as set forth below,
and will be furnished promptly at the Purchaser's expense. You may also contact
your broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (800) 735-3591
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
One Rockefeller Plaza
New York, New York 10020
(800) 542-0970
Exhibit (a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
BEST POWER TECHNOLOGY, INCORPORATED
PURSUANT TO THE OFFER TO PURCHASE
DATED MAY 16, 1995
BY
G.S. NEWCO, INC.
A WHOLLY OWNED SUBSIDIARY OF
GENERAL SIGNAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, JUNE 13, 1995,
UNLESS THE OFFER IS EXTENDED
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Hand or Overnight Delivery:
Tenders & Exchanges Tenders & Exchanges
Suite 4660 Suite 4680-BPT
P.O. Box 2559-BPT 14 Wall Street
Jersey City, New Jersey 07303-2559 8th Floor
New York, New York 10005
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE>
This Letter of Transmittal is to be completed by stockholders either if
certificates for Shares (as defined below) are to be forwarded herewith or,
unless an Agent's Message (as defined in the Offer to Purchase dated May 16,
1995 (the "Offer to Purchase")) is utilized, if tenders of Shares are to be made
by book-entry transfer to an account maintained by First Chicago Trust Company
of New York (the "Depositary") at The Depository Trust Company ("DTC"), Midwest
Securities Trust Company ("MSTC") or Philadelphia Depository Trust Company
("PDTC") (each a "Book-Entry Transfer Facility" and collectively referred to as
the "Book Entry Transfer Facilities"), pursuant to the procedures set forth in
Section 3 of the Offer to Purchase. Stockholders who tender Shares by book-entry
transfer are referred to herein as "Book-Entry Stockholders". DELIVERY OF
DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY
TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
If a stockholder desires to tender Shares pursuant to the Offer and
certificates evidencing such stockholder's Shares (the "Share Certificates") are
not immediately available or time will not permit the Share Certificates and all
other required documents to reach the Depositary prior to the Expiration Date
(as defined in Section 1 of the Offer to Purchase), or the procedures for
book-entry transfer cannot be completed on a timely basis, such stockholder must
tender his Shares according to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase. See Instruction 2.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
/ / CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution:..................................................
Check Box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number:....................... Transaction Code Number:.............
/ / CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s):................................................
Window Ticket Number (if any):..................................................
Date of Execution of Notice of Guaranteed Delivery:.............................
Name of Institution which Guaranteed Delivery:..................................
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES TENDERED
<S> <C> <C> <C>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE CERTIFICATE(S) AND
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) SHARE(S) TENDERED
APPEAR ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST, IF NECESSARY)
TOTAL NUMBER
OF SHARES
SHARE REPRESENTED NUMBER OF
CERTIFICATE BY SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
TOTAL SHARES...........................
</TABLE>
* Need not be completed by Book-Entry Stockholders.
** Unless otherwise indicated, it will be assumed that all Shares evidenced by
any certificates delivered to the Depositary are being tendered. See
Instruction 4.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to G.S. Newco, Inc. (the "Purchaser"), a
Delaware corporation and a wholly owned subsidiary of General Signal
Corporation, a New York corporation ("Parent"), the above described shares of
common stock, par value $.01 per share (the "Shares"), of Best PowerTechnology,
Incorporated, a Delaware corporation (the "Company"), at a price of $21.00 per
Share, net to the seller in cash, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated May 16, 1995 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which, together with the Offer to Purchase and, together with any amendment or
supplement hereto and thereto, collectively constitute the "Offer"). The
undersigned understands that the Purchaser reserves the right to transfer or
assign, in whole or from time to time in part, to one or more of the Purchaser's
subsidiaries or affiliates, the right to purchase all or any portion of the
Shares tendered pursuant to the Offer, but any such transfer or assignment will
not relieve the Purchaser of its obligations under the Offer or prejudice the
rights of tendering stockholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith in accordance with the terms of the Offer, the undersigned
hereby sells, assigns and transfers to, or upon the order of, the Purchaser all
right, title and interest in and to all of the Shares that are being tendered
hereby and any and all dividends and distributions (including, without
limitation, the issuance of additional Shares pursuant to a stock dividend or
stock split, the issuance of other securities or the issuance of rights for the
purchase of any securities) declared, paid or distributed with respect to the
tendered Shares on or after May 10, 1995, and is payable or distributable to
stockholders of record on a date prior to the transfer into the name of the
Purchaser or its nominees or transferees on the Company's stock transfer records
of the Shares purchased pursuant to the Offer (collectively, "Distributions"),
and irrevocably appoints the Depositary the true and lawful agent,
attorney-in-fact and proxy of the undersigned to the full extent of the
undersigned's rights with respect to such Shares (and any Distributions), with
full power of substitution (such power of attorney and proxy being deemed to be
an irrevocable power coupled with an interest), to (a) deliver Share
Certificates (and any Distributions), or transfer ownership of such Shares (and
any Distributions), on the account books maintained by the Book-Entry Transfer
Facilities, together in either such case with all accompanying evidences of
transfer and authenticity, to, or upon the order of, the Purchaser, (b) present
such Shares (and any Distributions) for transfer on the books of the Company and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and any Distributions), all in accordance with the
terms of the Offer.
The undersigned hereby irrevocably appoints Philip A. Goodrich and Edgar J.
Smith, Jr., or any other designees of the Purchaser, and each of them, as
attorneys-in-fact and proxies of the undersigned, with full power of
substitution, to the full extent of the undersigned's rights with respect to the
Shares tendered hereby, to exercise all voting and other rights of such
stockholder as each in his sole discretion may deem proper at any annual or
special meeting of the Company's stockholders, or any adjournment or
postponement thereof, or by consent in lieu of any such meeting or otherwise.
This power of attorney and proxy is coupled with an interest in the Shares and
is irrevocable and is granted in consideration of, and is effective upon, the
acceptance for payment of such Shares by the Purchaser in accordance with the
terms of the Offer. Such acceptance for payment shall revoke, without further
action, any other power of attorney or proxy granted by the undersigned at any
time with respect to such Shares (and any Distributions) and no subsequent
powers of attorney or proxies will be given or written consent executed (and, if
given or executed, will be deemed not to be effective) with respect thereto by
the undersigned. The undersigned understands that, in order for Shares to be
deemed validly tendered, immediately upon the Purchaser's acceptance for payment
of such Shares, the Purchaser must be able to exercise full voting rights with
respect to such Shares (and any Distributions), including voting at any meeting
of stockholders then scheduled.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby (and any Distributions) and that, when the same are accepted for payment
by the Purchaser, the Purchaser will acquire good, marketable and unencumbered
title thereto, free and clear of all liens, restrictions, charges and
encumbrances and none of the Shares (and any Distributions) will be subject to
any adverse claim. The undersigned, upon request, will execute and deliver any
additional documents deemed by the Depositary or the Purchaser to be necessary
or desirable to complete the sale, assignment and transfer of the Shares
tendered hereby (and any Distributions). In addition, the undersigned shall
promptly remit and transfer to the Depositary for the account of the Purchaser
any and all other Distributions in respect of the Shares tendered hereby,
accompanied by appropriate documentation of transfer and, pending such
remittance or appropriate assurance thereof, the Purchaser shall be entitled to
all rights and privileges as owner of any such Distributions, and may withhold
the entire purchase price or deduct from the purchase price of Shares tendered
hereby the amount or value thereof, as determined by the Purchaser in its sole
discretion.
All authority herein conferred or herein 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,
executors, administrators, legal representatives, successors and assigns of the
undersigned.
<PAGE>
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the Offer.
The Purchaser's acceptance of such Shares for payment will constitute a binding
agreement between the undersigned and the Purchaser upon the terms and subject
to the conditions set forth in the Offer.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and return any Share Certificates
not tendered or accepted for payment in the name(s) of the registered holder(s)
appearing above under "Description of Shares Tendered." Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the purchase price and return any Share Certificates not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing above under "Description of
Shares Tendered." In the event that both the "Special Delivery Instructions" and
the "Special Payment Instructions" are completed, please issue the check for the
purchase price and return any Share Certificates not tendered or accepted for
payment in the name(s) of, and deliver said check and/or return certificates to,
the person or persons so indicated. The undersigned recognizes that the
Purchaser has no obligation pursuant to the "Special Payment Instructions" to
transfer any Shares from the name of the registered holder thereof if the
Purchaser does not accept for payment any of such Shares.
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares purchased
and/or Share Certificates not tendered or not purchased are to be issued in the
name of someone other than the undersigned.
Issue check and/or certificates to:
Name:...........................................................................
(PLEASE PRINT)
Address:........................................................................
...............................................................................
(INCLUDE ZIP CODE)
...............................................................................
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 ON BACK COVER)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Share Certificates not tendered or not purchased and/or
the check for the purchase price of Shares purchased are to be sent to someone
other than the undersigned, or to the undersigned at an address other than that
shown under "Description of Shares Tendered."
Mail check and/or certificates to:
Name:...........................................................................
(PLEASE PRINT)
Address:........................................................................
...............................................................................
(INCLUDE ZIP CODE)
<PAGE>
IMPORTANT
STOCKHOLDERS SIGN HERE
(Please complete Substitute Form W-9 on reverse side)
....................................................................
....................................................................
SIGNATURE(S) OF OWNER(S)
Dated:........................................................, 1995
(Must be signed by the registered holder(s) exactly as name(s)
appear(s) on the Share Certificate(s) or on a security position
listing or by person(s) authorized to become registered holder(s) by
certificates and documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or
representative capacity for the registered holder, please provide
the necessary information. See Instruction 5.)
Name(s):............................................................
....................................................................
(PLEASE PRINT)
Capacity (Full Title):..............................................
....................................................................
Address:............................................................
....................................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number:.....................................
Tax Identification or Social Security No.:..........................
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature:...............................................
Name:...............................................................
(PLEASE PRINT)
Title:..............................................................
Name of Firm:.......................................................
Address:............................................................
....................................................................
....................................................................
....................................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number:.....................................
Dated:........................................................, 1995
SPACE BELOW IS FOR USE BY FINANCIAL INSTITUTIONS ONLY.
FINANCIAL INSTITUTIONS: PLACE MEDALLION GUARANTEE IN SPACE BELOW.
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal must be
guaranteed by a firm that is a member in good standing of the Medallion
Signature Guarantee Program, or by any other "eligible guarantor institution,"
as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended (each, an "Eligible Institution"), unless the Shares tendered
hereby are tendered (i) by a registered holder of Shares who has not completed
either the box labeled "Special Payment Instructions" or the box labeled
"Special Delivery Instructions" on this Letter of Transmittal or (ii) for the
account of an Eligible Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. This Letter of
Transmittal is to be used either if Share Certificates are to be forwarded
herewith or, unless an Agent's Message (as defined in the Offer to Purchase) is
utilized, if tenders are to be made pursuant to the procedures for tender by
book-entry transfer set forth in Section 3 of the Offer to Purchase. Share
Certificates evidencing all physically tendered Shares, or timely confirmation
(a "Book-Entry Confirmation") of a book-entry transfer of such Shares into the
Depositary's account at a Book-Entry Transfer Facility, as well as this Letter
of Transmittal (or a facsimile hereof), properly completed and duly executed,
with any required signature guarantees, or an Agent's Message in the case of a
book-entry delivery, and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth herein prior to the Expiration Date (as defined in Section 1 of the Offer
to Purchase). If Share Certificates are forwarded to the Depositary in multiple
deliveries, a properly completed and duly executed Letter of Transmittal must
accompany each delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share Certificates are not immediately
available or time will not permit the Share Certificates and all other required
documents to reach the Depositary prior to the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
stockholder may tender his Shares by properly completing and duly executing a
Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i)
such tender must be made by or through an Eligible Institution; (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the
form made available by the Purchaser, must be received by the Depositary prior
to the Expiration Date; and (iii) the Share Certificates evidencing all
physically tendered Shares, in proper form for transfer, or a Book-Entry
Confirmation for all Shares tendered by book-entry transfer, in each case with a
properly completed and duly executed Letter of Transmittal (or a facsimile
hereof), 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, must be received by the Depositary within three (or prior to June
6, 1995, five) Nasdaq National Market System trading days after the date of
execution of such Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND SOLE RISK OF THE TENDERING STOCKHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or a facsimile hereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and any other required
information should be listed on a separate schedule attached hereto and
separately signed on each page thereof in the same manner as this Letter of
Transmittal is signed.
<PAGE>
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If fewer than all the Shares evidenced by any certificate submitted
are to be tendered, fill in the number of Shares which are to be tendered in the
box entitled "Number of Shares Tendered." In such case, new certificate(s) for
the remainder of the Shares that were evidenced by your old certificate(s) will
be sent to you, unless otherwise provided in the appropriate box marked "Special
Payment Instructions" and/or "Special Delivery Instructions" on this Letter of
Transmittal, as soon as practicable after the expiration or termination of the
Offer. All Shares represented by certificates delivered to the Depositary will
be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond exactly with the name(s) as
written on the face of the certificate(s) without alteration, enlargement or any
change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any Shares tendered hereby are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of such Shares.
If this Letter of Transmittal 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 for
the registered holders, such persons should so indicate when signing, and proper
evidence satisfactory to the Purchaser of their authority so to act must be
submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or purchased are to be issued in, the name
of a person other than the registered owner(s). Signatures on such certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Shares listed, the certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner(s) appear(s) on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
6. STOCK TRANSFER TAXES. Except as set forth in this Instruction 6, the
Purchaser will pay or cause to be paid any stock transfer taxes with respect to
the transfer and sale of purchased Shares to it or its order pursuant to the
Offer. If, however, payment of the purchase price is to be made to, or if
certificates for Shares not tendered or purchased are to be registered in the
name of, any person other than the registered holder, or if tendered
certificates are registered in the name of any person other than the person(s)
signing this Letter of Transmittal, the amount of any stock transfer taxes
(whether imposed on the registered holder or such person) payable on account of
the transfer to such person will be deducted from the purchase price unless
satisfactory evidence of the payment of such taxes or exemption therefrom is
submitted. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY
FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER
OF TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of and/or certificates for unpurchased Shares are to be returned to a
person other than the signer of this Letter of Transmittal or if a check is to
be sent and/or such certificates are to be returned to someone other than the
signer of this Letter of Transmittal or to an address other than that shown in
the box entitled "Description of Shares Tendered," the appropriate boxes on this
Letter of Transmittal should be completed.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance may
be directed to the Information Agent at its address set forth below. Requests
for additional copies of the Offer to Purchase and this Letter of Transmittal
may be directed to the Information Agent or to brokers, dealers, commercial
banks or trust companies.
<PAGE>
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a stockholder (or other payee) whose tendered Shares are accepted for
payment is required to provide the Depositary with such stockholder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below, unless an
exemption applies, and to certify that the stockholder (or other payee) is not
subject to backup withholding. If the Depositary is not provided with the
correct TIN, the Internal Revenue Service may subject the stockholder (or other
payee) to a $50 penalty. In addition, payments that are made to such stockholder
(or other payee) with respect to Shares purchased pursuant to the Offer may be
subject to 31% backup withholding.
Certain stockholders (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 stockholder 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 Depositary. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any such payments made to the stockholder 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.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder (or other payee) if a properly certified TIN is provided to the
Depositary within 60 days.
The stockholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
Shares or of the last transferee appearing on the transfers attached to, or
endorsed on, the Shares. If the 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.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify Firstar Trust Company, 777 East Wisconsin Avenue, Milwaukee, WI
53202, Telephone No. (414) 276-3737, as Transfer Agent. The stockholder will
then be instructed as to the steps that must be taken in order to replace the
certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost or destroyed certificates have
been followed.
11. DELAY, TERMINATION OR AMENDMENT OF OFFER. Subject to the terms of the
Merger Agreement (as defined in the Offer to Purchase) and the applicable
regulations of the Securities and Exchange Commission, the Purchaser expressly
reserves the right, in its sole discretion, at any time or from time to time, to
(i) delay acceptance for payment of or, regardless of whether such Shares were
theretofore accepted for payment, payment for any Shares pending receipt of any
regulatory or governmental approvals specified in Section 15 of the Offer to
Purchase, (ii) terminate the Offer (whether or not any Shares have theretofore
been accepted for payment) if any condition referred to in Section 14 of the
Offer to Purchase has not been satisfied or upon the occurrence of any event
specified in Section 14 of the Offer to Purchase and (iii) waive any condition
or otherwise amend the Offer in any respect, in each case, by giving oral or
written notice of such delay, termination, waiver or amendment to the Depositary
and by making a public announcement thereof.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE COPY HEREOF) OR AN
AGENT'S MESSAGE TOGETHER WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY
TRANSFER AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE DEPOSITARY
PRIOR TO THE EXPIRATION DATE.
<PAGE>
<TABLE><CAPTION>
TO BE COMPLETED BY ALL TENDERING STOCKHOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK
<S> <C>
Part 1--PLEASE PROVIDE YOUR TIN IN Social Security Number
SUBSTITUTE THE BOX AT RIGHT AND CERTIFY BY OR __________________________
Form W-9 SIGNING AND DATING BELOW Employer ID Number
Part 2--CERTIFICATES--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am
waiting for a number to be issued to me) and
(2) I am not subject to backup withholding because: (a) I am exempt from backup withholding,
or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to
Department of the Treasury backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
Internal Revenue Service notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out
PAYER'S REQUEST FOR TAXPAYER item (2) above if you have been notified by the IRS that you are
IDENTIFICATION NUMBER ("TIN") currently subject to backup withholding because of underreporting
interest or dividends on your tax return. However, if after being Part 3
notified by the IRS that you were subject to backup withholding you Awaiting TIN / /
received another notification from the IRS that you are no
longer subject to backup withholding, do not cross out such
item (2).
SIGNATURE.......................DATE .............
</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.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all reportable payments made to me will be withheld,
and that such amounts will be remitted to the IRS as backup withholding if I
do not provide my Taxpayer Identification Number within sixty (60) days.
................................................ .............................
SIGNATURE DATE
<PAGE>
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Hand or Overnight
By Mail: Delivery:
Tenders & Exchanges Tenders & Exchanges
Suite 4660 Suite 4680-BPT
P.O. Box 2559-BPT 14 Wall Street
Jersey City, New Jersey 07303-2559 8th Floor
New York, New York 10005
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Additional copies of the Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery and other related materials may
be obtained from the Information Agent or the Dealer Manager as set forth below,
and will be furnished promptly at the Purchaser's expense. You may also contact
your broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (800) 735-3591
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
One Rockefeller Plaza
New York, New York 10020
(800) 542-0970
Exhibit (a)(3)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
BEST POWER TECHNOLOGY, INCORPORATED
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery or one substantially equivalent hereto
must be used to accept the Offer (as defined below) if certificates evidencing
shares of common stock, par value $.01 per share (the "Shares"), of Best Power
Technology, Incorporated, a Delaware corporation (the "Company"), are not
immediately available or time will not permit such certificates and all other
required documents to reach First Chicago Trust Company of New York (the
"Depositary") prior to the Expiration Date (as defined in the Offer), or the
procedures for delivery by book-entry transfer cannot be completed on a timely
basis. This Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by telegram or facsimile transmission to the Depositary. See Section
3 of the Offer to Purchase.
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Facsimile Transmission By Hand or Overnight
Tenders & Exchanges (for Eligible Institutions Delivery:
Suite 4660 only): Tenders & Exchanges
P.O. Box 2559-BPT Fax: (201) 222-4720 or 4721 Suite 4680-BPT
Jersey City, New Jersey Confirm Receipt of Notice of 14 Wall Street
07303-2559 Guaranteed Delivery 8th Floor
by Telephone: New York, New York 10005
(201) 222-4707
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO
A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to G.S. Newco, Inc., a Delaware corporation
(the "Purchaser"), upon the terms and subject to the conditions set forth in the
Offer to Purchase dated May 16, 1995 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"), receipt of each of
which is hereby acknowledged, the number of Shares indicated below pursuant to
the guaranteed delivery procedures set forth in Section 3 of the Offer to
Purchase.
Number of Shares: _____________ Shares Name(s) of Record Holder(s):
Certificate No(s). (if available): ______________________________________
______________________________________ ______________________________________
______________________________________ Address(es):
______________________________________ ______________________________________
______________________________________
______________________________________
If Share(s) will be tendered by Area Code and Telephone Number(s):
book-entry transfer, check one box.
______________________________________
/ / The Depository Trust Company
______________________________________
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Signature(s):
Account Number: _______________________ ______________________________________
Date: _________________________________ ______________________________________
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a member in good standing of the Medallion
Signature Guarantee Program or is an "eligible guarantor institution," as such
term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended, hereby guarantees to deliver to the Depositary, at one of its addresses
set forth above, the certificates representing all Shares tendered hereby, in
proper form for transfer, or a Book-Entry Confirmation (as defined in the Offer
to Purchase), together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees, or,
in the case of book-entry delivery of Shares, an Agent's Message (as defined in
the Offer to Purchase), and any other documents required by the Letter of
Transmittal within three (or prior to June 6, 1995, five) Nasdaq National Market
System trading days after the date of execution of this Notice of Guaranteed
Delivery.
Name of Firm: _______________________ Title: __________________________________
Address: ____________________________ Name: ___________________________________
_____________________________________ _________________________________________
(Please type or print)
Area Code and Telephone Number: _____
_____________________________________ Date: ___________________________________
(Authorized Signature)
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES SHOULD BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
Exhibit (a)(4)
LAZARD FRERES & CO. LLC
One Rockefeller Plaza
New York, New York 10020
]OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
BEST POWER TECHNOLOGY, INCORPORATED
AT
$21.00 NET PER SHARE
BY
G.S. NEWCO, INC.
A WHOLLY OWNED SUBSIDIARY
OF
GENERAL SIGNAL CORPORATION
]THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, JUNE 13, 1995,
UNLESS THE OFFER IS EXTENDED.
May 16, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by G.S. Newco, Inc., a Delaware corporation (the
"Purchaser"), and General Signal Corporation, a New York corporation ("Parent"),
to act as Dealer Manager in connection with the Purchaser's offer to purchase
all outstanding shares of common stock, par value $.01 per share (the "Shares"),
of Best Power Technology, Incorporated, a Delaware corporation (the "Company"),
at a purchase price of $21.00 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated May
16, 1995 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer") enclosed herewith.
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Shares registered in your name or in the name of your
nominee.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH, TOGETHER WITH SHARES OWNED BY PARENT, CONSTITUTES AT LEAST A
MAJORITY OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS, AND (II) THE
EXPIRATION OR TERMINATION OF ANY APPLICABLE ANTITRUST WAITING PERIODS.
<PAGE>
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase dated May 16, 1995;
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients;
3. A letter to the stockholders of the Company from the Chairman,
Executive Committee of the Company, together with the
Solicitation/Recommendation Statement on Schedule 14D-9 and the
Information Statement;
4. The Notice of Guaranteed Delivery for Shares to be used to accept the
Offer if certificates representing Shares are not immediately
available or time will not permit such certificates and all other
required documents to reach First Chicago Trust Company of New York
(the "Depositary") prior to the Expiration Date (as defined in the
Offer to Purchase) or if the procedures for book-entry transfer
cannot be completed on a timely basis;
5. A printed form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients'
instructions with regard to the Offer;
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
7. A return envelope addressed to the Depositary.
The Board of Directors of the Company has unanimously approved the Offer and
the Merger (as described in the Offer to Purchase), has determined that each of
the Offer and the Merger is fair to, and in the best interests of, the
stockholders of the Company, and recommends that the stockholders of the Company
accept the Offer and tender their 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 the Offer as so
extended and amended) the Purchaser will purchase, by accepting for payment, and
will pay for, all Shares validly tendered and not withdrawn (as permitted by
Section 4 of the Offer to Purchase) prior to the Expiration Date promptly after
the later to occur of (i) the Expiration Date, (ii) the expiration or
termination of any applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act, as amended, as specified in Section 15 of the Offer
to Purchase and (iii) the satisfaction or waiver of the conditions to the Offer
set forth in Section 14 of the Offer to Purchase. In addition, subject to
applicable rules of the Securities and Exchange Commission, the Purchaser
expressly reserves the right to delay acceptance for payment of, or payment for,
Shares pending receipt of any regulatory or governmental approvals specified in
Section 15 of the Offer to Purchase or in order to comply in whole or in part
with any other applicable law.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of (i) the certificates
evidencing such Shares (the "Share Certificates") or timely confirmation of the
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company, Midwest Securities Trust Company or Philadelphia
Depository Trust Company (collectively, the "Book-Entry Transfer Facilities")
pursuant to the procedures set forth in Section 3 of the Offer to Purchase, (ii)
the Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase) in connection with a book-entry transfer and
(iii) any other documents required by the Letter of Transmittal.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL
<PAGE>
RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JUNE 13,
1995, UNLESS THE OFFER IS EXTENDED.
In order to accept the Offer, an appropriate duly executed and properly
completed Letter of Transmittal and any required signature guarantees, or an
Agent's Message in connection with a book-entry delivery of Shares, and any
other required documents should be sent to the Depositary and either Share
Certificates representing the tendered Shares should be delivered to the
Depositary or Shares should be tendered by book-entry transfer into the
Depositary's account maintained at one of the Book-Entry Transfer Facilities,
all in accordance with the instructions set forth in the Letter of Transmittal
and the Offer to Purchase.
A stockholder who desires to tender Shares and whose certificates evidencing
such Shares are not immediately available or who cannot comply with the
procedures for book-entry transfer on a timely basis may tender such Shares by
following the procedures for guaranteed delivery set forth in Section 3 of the
Offer to Purchase.
Neither Parent nor the Purchaser will pay any fees or commissions to any
broker, dealer or other person (other than the Information Agent and the Dealer
Manager as described in the Offer to Purchase) for soliciting tenders of Shares
pursuant to the Offer. You will, upon request, be reimbursed by Parent or the
Purchaser for customary clerical and mailing expenses incurred by you in
forwarding offering materials to your customers.
Any inquiries you may have with respect to the Offer should be addressed to,
and additional copies of the enclosed material may be obtained from, the Dealer
Manager or the Information Agent, at their respective addresses and telephone
numbers set forth on the back cover of the Offer to Purchase.
Very truly yours,
LAZARD FRERES & CO. LLC
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE DEALER MANAGER, THE COMPANY,
THE DEPOSITARY 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 OFFER TO
PURCHASE AND THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
Exhibit (a)(5)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
BEST POWER TECHNOLOGY, INCORPORATED
AT
$21.00 NET PER SHARE
BY
G.S. NEWCO, INC.
A WHOLLY OWNED SUBSIDIARY
OF
GENERAL SIGNAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, JUNE 13, 1995,
UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated May 16, 1995
(the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to the offer by G.S. Newco, Inc., a Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of General Signal Corporation, a New
York corporation ("Parent"), to purchase all outstanding shares of common stock,
par value $.01 per share (the "Shares"), of Best Power Technology, Incorporated,
a Delaware corporation (the "Company"), at a purchase price of $21.00 per Share,
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer.
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US FOR
YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED
TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD
BY US FOR YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish to have us
tender on your behalf any or all Shares held by us for your account pursuant to
the terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $21.00 per Share, net to you in cash.
2. The Board of Directors of the Company has unanimously approved the
Offer and the Merger (as described in the Offer to Purchase), has
determined that each of the Offer and the Merger is fair to, and in
the best interests of, the stockholders of the Company, and recommends
that the stockholders of the Company accept the Offer and tender their
Shares pursuant to the Offer.
3. The Offer is being made for all Shares.
4. The Offer is conditioned upon, among other things, (i) there being
validly tendered and not withdrawn prior to the expiration of the
Offer a number of Shares which, together with
<PAGE>
Shares owned by Parent, constitutes at least a majority of the Shares
outstanding on a fully diluted basis, and (ii) the expiration or
termination of any applicable antitrust waiting periods.
5. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, stock transfer taxes on the purchase of
Shares by the Purchaser pursuant to the Offer.
6. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on Tuesday, June 13, 1995, unless the Offer is
extended.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth on the back page of this letter. If you
authorize the tender of your Shares, all such Shares will be tendered unless
otherwise specified on the back page of this letter. An envelope to return your
instructions to us is enclosed. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN
AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE
EXPIRATION OF THE OFFER.
The Offer is made solely by the Offer to Purchase and the related Letter of
Transmittal, and is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares in any jurisdiction in which the making of the
Offer or 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 by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of the Purchaser by Lazard Freres & Co. LLC or one or more other
registered brokers or dealers licensed under the laws of such jurisdiction.
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL
SHARES OF COMMON STOCK
OF
BEST POWER TECHNOLOGY, INCORPORATED
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated May 16, 1995 (the "Offer to Purchase"), and the related Letter
of Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") in connection with the offer by G.S. Newco,
Inc., a Delaware corporation (the "Purchaser") and a wholly owned subsidiary of
General Signal Corporation, a New York corporation ("Parent"), to purchase all
outstanding shares of common stock, par value $.01 per share (the "Shares"), of
Best Power Technology, Incorporated, a Delaware corporation (the "Company"), at
a purchase price of $21.00 per Share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer.
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or if no number is indicated below, all Shares) which are held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Number of Shares To Be Tendered*: Shares
Dated: , 1995
* Unless otherwise indicated, it will be assumed that you instruct us to tender
all Shares held by us for your account.
________________________________________________________________________________
SIGN HERE
Signature(s) ___________________________________________________________________
(Print Name(s)) ________________________________________________________________
(Print Address(es)) ____________________________________________________________
(Area Code and Telephone Number(s)) ____________________________________________
(Taxpayer Identification or
Social Security Number(s)) _____________________________________________________
Exhibit (a)(6)
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.
- ------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE
SOCIAL SECURITY
NUMBER OF--
- ------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals The actual owner of
(joint account) the account or, if
combined funds, the
first individual on
the account(1)
3. Husband and wife (joint The actual owner of
account) the account or, if
joint funds, the first
individual on the
account(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if the
account) minor is the only
contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee incompetent person(3)
for a designated ward,
minor or incompetent
person
7. a. The usual revocable The grantor-trustee(1)
savings trust
account (grantor is
also trustee)
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under State law
8. Sole proprietorship The owner(4)
account
- ------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE EMPLOYER
IDENTIFICATION
NUMBER OF--
- ------------------------------------------------------
9. A valid trust, estate, The legal entity (Do
or pension 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)
10. Corporate account The corporation
11. Religious charitable, The organization
or educational
organization account
12. Partnership account The partnership
held in the name of the
business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or nominee
nominee
15. Account with the The public entity
Department of
Agriculture in the name
of a public entity
(such as a State or
local government,
school district, or
prison) that receives
agricultural program
payments
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number (for
businesses and all other entities), at the local office of the Social Security
Administration or the Internal Revenue Service and apply for a number.
PAYEE 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), or an individual
retirement plan, or a custodial account under Section 403(b)(7).
. 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 section 584(a).
. An exempt charitable remainder trust, or a nonexempt trust described in
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 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
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee
Exempt payees described above should file a Substitute 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.
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 sections 6041, 6041A(a), 6042, 6044, 6045, 6049,
6050A, and 6050N, and the regulations under those sections.
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 IRS. The IRS uses the numbers for identification
purposes and to help verify the accuracy of tax returns. 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) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE
Unless otherwise noted herein, all references to section numbers or
regulations are references to the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
Exhibit (a)(7)
GENERAL SIGNAL NEWS
High Ridge Park * Box 10010 * Stamford, CT 06904 Contact:
Nino J. Fernandez
Vice President-Investor Relations
(203) 329-4100
FOR RELEASE:
May 10, 1995
GENERAL SIGNAL AGREES TO ACQUIRE BEST POWER TECHNOLOGY
STAMFORD, CT, May 10 -- General Signal Corporation (GSX:NYSE)
announced today it has signed a definitive agreement with Best Power
Technology, Inc. (NASDAQ:BPTI) for the acquisition of Best Power by General
Signal.
"This transaction broadens our GS Electrical Power Systems Group's
line of power protection and conversion products and its distribution
channels. The addition of Best Power to our existing Sola/Hevi-Duty
division positions the combined group to compete effectively in the multi-
billion dollar worldwide uninterruptible power supply marketplace and as a
global power protection, conversion, and transformer competitor," General
Signal chairman and chief executive officer Edmund M. Carpenter said.
Under the terms of the purchase transaction, General Signal would pay
$21 per share in cash for all of Best Power's approximately 9.5 million
outstanding shares, for a total transaction value of approximately $200
million.
Best Power, based in Necedah, Wisconsin, is a leading manufacturer of
uninterruptible power supply (UPS) products, which provide backup power and
protect computers, information networks, and other critical systems from
power line disturbances. Sola/Hevi-Duty manufactures uninterruptible power
systems and power conditioners/regulators, as well as low-voltage general
purpose and control transformers.
Best Power's strong market position in single-phase and three-phase
uninterruptible power supply products complements Sola/Hevi-Duty's power
conditioning, DC power supply, and UPS product capabilities," Mr. Carpenter
said. "The consolidated company will provide market leadership and brand
recognition in the fast-growing single-phase uninterruptible power supply
and power conditioning market. In addition, it offers combined strengths
in the computer, communications, and industrial markets, where the majority
of uninterruptible power supply products are used." The acquisition will
bring annual sales for General Signal's GS Electrical Power Systems Group,
the company's largest business unit, to approximately $475 million.
<PAGE>
"The transaction is part of our ongoing effort to augment the
competitive position and growth of each of our operations and will
represent our 26th "bolt-on" acquisition in six years," Mr. Carpenter
concluded.
# # #
General Signal Corporation, with 1994 sales of $1.53 billion, is a leading
equipment manufacturer for the process control, electrical, and industrial
technology industries.
Best Power Technology, Incorporated, with 1994 sales of $149.4 million, is
a leading manufacturer of power protection equipment, back-up battery
systems, emergency lighting systems, and related components.
Exhibit (a)(8)
General Signal Letterhead
FOR RELEASE CONTACT:
Nino J. Fernandez
Vice President -Investor Relations
(203)329-4100
May 16, 1995
GENERAL SIGNAL INITIATES TENDER OFFER
FOR BEST POWER TECHNOLOGY
STAMFORD, CT., MAY 16 - General Signal Corporation announced
today that it has begun a cash tender offer for all of the outstanding shares of
Best Power Technology, Incorporated. Last week, General Signal announced its
plans to acquire Best Power for $21 per share in cash and for Best Power to
become part of its GS Electric Power Systems Group unit.
Best shareholders will have 20 days in which to respond to the
offer. The tender offer will be followed as soon as possible by a second-step
merger in which each share of Best Power not acquired in the tender offer will
be converted into the right to receive $21.00 in cash.
According to General Signal chairman and chief executive officer
Edmund M. Carpenter, the acquisition is part of an ongoing effort by General
Signal to augment the competitive position and growth of its operations. "The
acquisition of Best Power broadens our GS Electric Power Systems Group's line of
power protection and conversion products and its distribution channels. The
addition positions the combined operations to complete effectively in the
worldwide uninterruptible power supply marketplace and as a global power
protection, conversion, and transformer competitor," Mr. Carpenter said.
# # #
General Signal Corporation, with 1994 sales of $1.53 billion, is a leading
equipment manufacturer for the process control, electrical, and industrial
technology industries.
EXHIBIT (a)(9)
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares (as defined below). The Offer (as defined below) is
made solely by the Offer to Purchase dated May 16, 1995, and the related
Letter of Transmittal, and is not being made to, nor will tenders be
accepted from or on behalf of, holders of Shares in any jurisdiction in
which the making of the Offer or 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 by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf
of the Purchaser (as defined below) by Lazard Freres & Co. LLC or one or
more other registered brokers or dealers licensed under the laws of such
jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Best Power Technology, Incorporated
at
$21.00 Net Per Share
by
G.S. Newco, Inc.
a wholly owned subsidiary of
General Signal Corporation
G.S. Newco, Inc., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of General Signal Corporation, a New York
corporation ("Parent"), is offering to purchase all outstanding shares of
common stock, par value $.01 per share (the "Shares"), of Best Power
Technology, Incorporated, a Delaware corporation (the "Company"), at a
purchase price of $21.00 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase
dated May 16, 1995 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Following the Offer, the Purchaser
intends to effect the Merger described below.
- ------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, JUNE 13, 1995, UNLESS THE OFFER IS EXTENDED.
- ------------------------------------------------------------------------------
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
OFFER AND THE MERGER, HAS DETERMINED THAT EACH OF THE OFFER AND THE MERGER
IS FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY,
AND RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND
TENDER THEIR SHARES PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (i) THERE BEING
VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF SHARES WHICH, TOGETHER WITH SHARES OWNED BY PARENT, CONSTITUTES
AT LEAST A MAJORITY OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS, AND
(ii) the expiration or termination of any applicable antitrust waiting
periods.
The Offer is being made pursuant to an Agreement and Plan of
Merger, dated as of May 10, 1995 (the "Merger Agreement"), among Parent,
the Purchaser and the Company. The Merger Agreement provides that, among
other things, as soon as practi-cable after the purchase of Shares pursuant
to the Offer and the satisfaction of the other conditions set forth in the
Merger Agreement and in accordance with the relevant provisions of the
General Corporation Law of the State of Delaware (the "DGCL"), the
Purchaser will be merged with and into the Company (the "Merger").
Following consummation of the Merger, the Company will continue as the
surviving corporation and will become a wholly owned subsidiary of Parent.
At the effective time of the Merger (the "Effective Time"), each Share
issued and outstanding immediately prior to the Effective Time (other than
Shares held in the treasury of the Company or owned by the Purchaser,
Parent or any direct or indirect wholly owned subsidiary of Parent, and
other than Shares held by stockholders who shall have demanded and
perfected appraisal rights under the DGCL) will be cancelled and converted
automatically into the right to receive $21.00 in cash, or any higher price
that may be paid per Share in the Offer, without interest.
<PAGE>
Pursuant to the Company's Certificate of Incorporation and the
DGCL, the affirmative vote of the holders of a majority of the outstanding
Shares is required to approve and adopt the Merger Agreement and the
Merger. Concurrently with the execution of the Merger Agreement, Parent and
the Purchaser entered into letter agreements (the "Stock Tender
Agreements") with certain individuals (each a "Seller Stockholder" and,
collectively, the "Seller Stockholders") who are stockholders and directors
of the Company, owning, in the aggregate, 2,015,816 Shares (representing,
together with 303,000 Shares owned by Parent, approximately 24% of the
Shares outstanding on May 10, 1995 on a fully-diluted basis). Pursuant to
the Stock Tender Agreements, each Seller Stockholder has agreed to tender,
in accordance with the terms of the Offer, all Shares owned (beneficially
or of record) by such Seller Stockholder and each Seller Stockholder has
agreed not to withdraw his Shares unless the Offer is extended beyond
December 31, 1995, or unless the Merger Agreement is terminated.
For purposes of the Offer, the Purchaser will be deemed to have
accepted for payment (and thereby purchased) Shares validly tendered and
not properly withdrawn as, if and when the Purchaser gives oral or written
notice to First Chicago Trust Company of New York (the "Depositary") of the
Purchaser's acceptance of such Shares for payment pursuant to the Offer.
Upon the terms and subject to the conditions of the Offer, payment for
Shares accepted for payment pursuant to the Offer will be made by deposit
of the purchase price therefor with the Depositary, which will act as agent
for tendering stockholders for the purpose of receiving payments from the
Purchaser and transmitting such payments to tendering stockholders whose
Shares have been accepted for payment. Under no circumstances will interest
on the purchase price for Shares be paid by the Purchaser, regardless of
any extension of the Offer or any delay in making such payment. In all
cases, payment for Shares purchased pursuant to the Offer will be made only
after timely receipt by the Depositary of (i) certificates evidencing such
Shares (the "Share Certificates") or timely confirmation (a "Book-Entry
Confirmation") of the book-entry transfer of such Shares into the
Depositary's account at one of the Book-Entry Transfer Facilities (as
defined in Section 2 of the Offer to Purchase) pursuant to the procedures
set forth in Section 3 of the Offer to Purchase, (ii) the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or an Agent's Message (as defined
in Section 2 of the Offer to Purchase) in connection with a book-entry
transfer and (iii) any other documents required by the Letter of
Transmittal.
Subject to the terms of the Merger Agreement, the Purchaser
expressly reserves the right, in its sole discretion, at any time and from
time to time, to extend the period during which the Offer is open for any
reason, including the occurrence of any event specified in Section 14 of
the Offer to Purchase, by giving oral or written notice of such extension
to the Depositary. There can be no assurance that the Purchaser will
exercise its right to extend the Offer. Any such extension will be followed
as promptly as practicable by a public announcement thereof, such
announcement to be made no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date (as
defined below). During any such extension, all Shares previously tendered
and not withdrawn will remain subject to the Offer and subject to the right
of a tendering stockholder to withdraw such stockholder's Shares.
Subject to the terms of the Merger Agreement and the applicable
regulations of the Securities and Exchange Commission, the Purchaser also
expressly reserves the right, in its sole discretion, at any time and from
time to time, to (i) delay acceptance of any Shares tendered for payment,
(ii) terminate the Offer and (iii) waive any condition or otherwise amend
the Offer in any respect, in each case, by giving oral or written notice of
such delay, termination, waiver or amendment to the Depositary and by
making a public announcement thereof.
Tenders of Shares made pursuant to the Offer are irrevocable,
except that Shares tendered pursuant to the Offer may be withdrawn at any
time on or prior to 12:00 Midnight, New York City time, on Tuesday, June
13, 1995, or such later date as may apply in case the Offer is extended
(the "Expiration Date"), and, unless theretofore accepted for payment as
provided in the Offer to Purchase, may also be withdrawn at any time after
July 14, 1995 (or such later date as may apply in case the Offer is
extended). For a withdrawal to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary
at one of its addresses set forth on the back cover of the Offer to
<PAGE>
Purchase. Any such notice of withdrawal must specify the name of the person
who tendered the Shares to be withdrawn, the number of Shares to be
withdrawn, and (if Share Certificates have been tendered) the name of the
registered holder of the Shares as set forth in the Share Certificates, if
different from that of the person who tendered such Shares. If Share
Certificates have been delivered or otherwise identified to the Depositary,
then prior to the physical release of such Share Certificates, the
tendering stockholder must submit the serial numbers shown on the
particular Share Certificates evidencing the Shares to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined in Section 3 of the Offer to Purchase), except in
the case of Shares tendered for the account of an Eligible Institution. If
Shares have been tendered pursuant to the procedures for book-entry
transfer set forth in Section 3 of the Offer to Purchase, the notice of
withdrawal must specify the name and number of the account at the
appropriate Book-Entry Transfer Facility to be credited with the withdrawn
Shares. Withdrawals of Shares may not be rescinded. Any Shares properly
withdrawn will be deemed not validly tendered for purposes of the Offer,
but may be retendered at any subsequent time prior to the Expiration Date
by following any of the procedures described in Section 3 of the Offer to
Purchase. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Purchaser, in
its sole discretion, whose determination shall be final and binding.
The information required to be disclosed pursuant to Rule
14d-6(e)(1)(vii) of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, is contained in the Offer to Purchase and
is incorporated herein by reference.
The Company has provided the Purchaser with the Company's
stockholder list and security position listings for the purpose of
disseminating the Offer to holders of Shares. The Offer to Purchase and the
related Letter of Transmittal and other relevant materials will be mailed
to record holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the
names of whose nominees, appear on the stockholder lists or, if applicable,
who are listed as participants in a clearing agency's security position
listing, for subsequent transmittal to beneficial owners of Shares.
The Offer to Purchase and the related Letter of Transmittal contain
important information which should be read carefully before any decision is
made with respect to the Offer.
Questions and requests for assistance or copies of the Offer to
Purchase and the related Letter of Transmittal and other tender materials
may be directed to the Information Agent or the Dealer Manager at their
respective addresses and telephone numbers set forth below and copies will
be furnished promptly at the Purchaser's expense. No fees or commissions
will be payable by the Purchaser to any broker, dealer or other person
(other than the Information Agent and the Dealer Manager) for soliciting
tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Call Toll Free: (800) 735-3591
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
One Rockefeller Plaza
New York, New York 10020
(800) 542-0970
May 16, 1995
16641 D.F. King & Co., Inc.
Farrington & Favia (212) 475-7600
16641-D-01/May95/D F KING
5/15/95 et/jn Proof 5 4 4
Check proof before releasing for publication
16641-D-01 5/15/95 PROOF 4
EXHIBIT (c)(1)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 10 , 1995 (the "Agreement"),
by and among BEST POWER TECHNOLOGY, INCORPORATED, a Delaware corporation
("Company"), GENERAL SIGNAL CORPORATION, a Delaware corporation ("Parent"), and
G.S. NEWCO INC., a Delaware corporation and a direct wholly owned subsidiary of
Parent ("Merger Sub"). Company and Merger Sub are hereinafter sometimes
collectively referred to as the "Constituent Corporations," and Company, Parent
and Merger Sub are hereinafter sometimes collectively referred to as the
"Parties."
WHEREAS, the Boards of Directors of Parent, Merger Sub and Company have
determined that it is in the best interests of their respective stockholders
for Parent to acquire Company upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, in furtherance of such acquisition, it is proposed that Parent
shall cause Merger Sub to make a cash tender offer (the "Offer") to acquire all
the issued and outstanding shares of Common Stock, par value $.01 per share, of
Company ("Company Common Stock") (shares of Company Common Stock being
hereinafter collectively referred to as "Shares") for $21.00 per Share (such
amount, or any higher amount as may be paid for any Shares pursuant to the
Offer, being hereinafter referred to as the "Per Share Amount") net to the
seller in cash, upon the terms and subject to the conditions of this Agreement
and the Offer; and
WHEREAS, the Board of Directors of Parent, Merger Sub and Company have
approved the merger of Merger Sub with and into Company (the "Merger")
following consummation of the Offer, upon the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
Parties agree as follows:
ARTICLE I
---------
THE OFFER
SECTION 1.01 The Offer (a) As promptly as practicable (but in no event
---------
later than five business days after the date of the initial public announcement
of the execution and delivery of this Agreement), Parent shall cause Merger
Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), the Offer and, subject to the
<PAGE>
conditions of the Offer, shall use all commercially reasonable efforts to
consummate the Offer as promptly as permitted by law. The obligation of Parent
and Merger Sub to consummate the Offer, to accept for payment and to pay for
any shares of Company Common Stock tendered pursuant to the Offer (i) shall be
subject to the condition that such number of shares of Company Common Stock
shall have been validly tendered and not withdrawn prior to the expiration date
of the Offer which, together with the shares of Company Common Stock
beneficially owned by Parent or any affiliate thereof on such date, constitute
a majority of the shares of Company Common Stock then outstanding on a fully
diluted basis (the "Minimum Condition") and (ii) shall be subject to the other
conditions set forth in Annex A hereto.
(b) Neither Parent nor Merger Sub will, without the prior written consent
of Company, decrease the consideration payable in the Offer or decrease the
number of shares of Company Common Stock sought pursuant to the Offer or impose
any additional conditions to the Offer. Company agrees that no shares of
Company Common Stock held by Company or any subsidiary thereof will be tendered
pursuant to the Offer. Notwithstanding any other provision of this Agreement,
the conditions of the Offer are for the sole benefit of Merger Sub and Parent
and may be asserted by Merger Sub and Parent regardless of the circumstances
giving rise to any such conditions or may be waived by Merger Sub and Parent in
whole or in part.
(c) As soon as practicable on the date of commencement of the Offer,
Parent shall cause Merger Sub to file with the Securities and Exchange
Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect
to the Offer which will contain the offer to purchase and form of the related
letter of transmittal (together with any supplements or amendments thereto,
collectively referred to herein as the "Offer Documents"). The Offer Documents
will comply in all material respects with the provisions of applicable federal
securities laws and, on the date filed with the SEC and on the date first
published, sent or given to Company's stockholders, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that no representation is made by Parent or Merger Sub with respect to
information supplied by Company in writing for inclusion in the Offer
Documents. Parent, Merger Sub and Company each agrees promptly to correct any
information provided by it for use in the Offer Documents if and to the extent
that it shall have become false or misleading in any material respect, and
Parent and Merger Sub further agree to take all steps necessary to cause the
Offer Documents as so corrected to be filed with the SEC and to be disseminated
to holders of shares of Company
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<PAGE>
Common Stock, in each case as and to the extent required by applicable federal
securities laws.
SECTION 1.02 Company Actions. Company hereby consents to the Offer and
---------------
represents that (a) its Board of Directors (at a meeting duly called and held)
has unanimously (i) determined that as of the date of such meeting the Offer
and the Merger are fair to, and in the best interests of, Company's
stockholders, (ii) approved this Agreement and the transactions contemplated
hereby, including the Offer, the Merger and the execution and delivery of the
letter agreements in substantially the form of Exhibit A to this Agreement by
the stockholders of Company listed in Schedule 1.02 of the Disclosure Statement
being delivered confidentially by Company to Parent and Merger Sub concurrently
herewith (the "Disclosure Statement"), and (iii) resolved, subject to the terms
of this Agreement, to recommend acceptance of the Offer and approval and
adoption of this Agreement and the Merger by the stockholders of Company, and
(b) The Chicago Corporation has advised, and delivered its written opinion to,
Company's Board of Directors that as of the date hereof, the cash consideration
to be received by the Company's stockholders in the Offer and Merger is fair
from a financial point of view to such stockholders. Company hereby agrees to
file with the SEC contemporaneously with the commencement of the Offer a
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9")
containing such recommendation in favor of the Offer and the Merger. The
Schedule 14D-9 will comply in all material respects with the provisions of
applicable federal securities law. The Schedule 14D-9, on the date filed with
the SEC and on the date first published, sent or given to Company's
stockholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and Company (and Merger Sub and the Parent, with
respect to written information supplied by either of them specifically for use
in the Schedule 14D-9) agree promptly to correct the Schedule 14D-9 if and to
the extent that it shall have become false or misleading in any material
respect and Company shall take all steps necessary to cause the Schedule 14D-9
as so corrected to be filed with the SEC and mailed to the Company's
stockholders to the extent required by applicable federal securities laws.
Company hereby consents to the inclusion in the Offer of the recommendation
referred to in clause (iii) above. In connection with the Offer, Company will
promptly furnish Merger Sub with mailing labels, security position listings and
any available listing or computer file containing the names and addresses of
the record holders of Company Common Stock as of a recent date, and shall
furnish Merger Sub with such information and assistance as Merger Sub or its
agents may reasonably request in communicating the Offer to the stockholders of
Company. Subject to the
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<PAGE>
requirements of law, and except for such steps as are necessary to disseminate
the documents constituting the Offer and any other documents necessary to
consummate the Merger, Parent and Merger Sub and each of their affiliates and
associates shall hold in confidence the information contained in any of such
labels and lists, will use such information only in connection with the Offer
and the Merger, and, if this Agreement is terminated, will deliver to Company
all copies of such information then in their possession.
SECTION 1.03 Directors; Section 14(f). Promptly upon the purchase by
------------------------
Parent or Merger Sub of such number of shares as represents at least a majority
of the outstanding shares of Company Common Stock and from time to time
thereafter, Parent shall be entitled to designate such number of directors,
rounded up to the next whole number but in no event more than one less than the
total number of directors, on the Board of Directors of Company as will give
Parent, subject to compliance with Section 14(f) of the Exchange Act,
representation on the Board of Directors of Company equal to the product of the
number of directors on the Board of Directors of Company and the percentage
that such number of shares of Company Common Stock so purchased bears to the
number of shares of Company Common Stock outstanding, and Company shall, upon
request by Parent, promptly increase the size of the Board of Directors of
Company to the extent permitted by its Certificate of Incorporation or exercise
its best efforts to secure the resignations of such number of directors as is
necessary to enable Parent's designees to be elected to the Board of Directors
of Company and shall cause Parent's designees to be so elected. At the request
of Parent, Company shall take, at its expense, all action necessary to effect
any such election, including mailing to its stockholders the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder.
ARTICLE II
THE MERGER; DISPOSITION OF SHARES
SECTION 2.01 The Merger. (a) In accordance with the provisions of this
----------
Agreement and the General Corporation Law of the State of Delaware (the
"DGCL"), at the Effective Time (as defined in Section 2.02 hereof), Merger Sub
shall be merged with and into Company, and Company shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corporation") and
shall continue its corporate existence under the laws of the State of Delaware.
At the Effective Time the separate existence of Merger Sub shall cease.
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<PAGE>
(b) The Merger shall have the effects on Company and Merger Sub as the
constituent corporations of the Merger as provided under the DGCL.
SECTION 2.02 Effective Time. The Merger shall become effective at the
--------------
time of filing of, or at such later time as may be specified in, a certificate
of merger, in the form required by and executed in accordance with the DGCL,
with the Secretary of State of the State of Delaware in accordance with the
provisions of Section 251 of the DGCL (the "Certificate of Merger"). The date
and time when the Merger shall become effective is herein referred to as the
"Effective Time."
SECTION 2.03 Certificate of Incorporation and By-Laws of Surviving
-----------------------------------------------------
Corporation. The Certificate of Incorporation and By-Laws of Company shall be
- -----------
the Certificate of Incorporation and By-Laws of the Surviving Corporation until
thereafter amended as provided by law.
SECTION 2.04 Directors and Officers of Surviving Corporation. (a) The
-----------------------------------------------
number of directors of the Surviving Corporation shall be as determined
pursuant to the By-Laws of the Surviving Corporation. The directors of Merger
Sub shall be the directors of the Surviving Corporation and will hold office
from and after the Effective Time until their respective successors are duly
elected or appointed and qualify in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation or as otherwise provided
by law or their earlier resignation or removal.
(b) The officers of the Surviving Corporation shall be determined by the
Board of Directors of the Surviving Corporation immediately after the Effective
Time, and will hold office from and after the Effective Time until their
respective successors are duly appointed and qualify in the manner provided in
the By-Laws of the Surviving Corporation or as otherwise provided by law or
their earlier resignation or removal.
SECTION 2.05 Further Assurances. If, at any time after the Effective
------------------
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments, assurances, or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in
the Surviving Corporation its right, title or interest in, to or under any of
the rights, properties or assets of either of the Constituent Corporations
acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out this Agreement, the
officers and directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of each of the Constituent
Corporations or otherwise, all such deeds, bills of sale,
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<PAGE>
assignments and assurances and to take and do, in the name and on behalf of
each of the Constituent Corporations or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and all
right, title and interest in, to and under such rights, properties or assets in
the Surviving Corporation or otherwise to carry out this Agreement and the
transactions contemplated hereby.
SECTION 2.06 Effect on Shares of Merger Sub and Company. As of the
------------------------------------------
Effective Time, by virtue of the Merger and without any action on the part of
the holders thereof:
(a) Each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (except for shares owned by Company or any of its
subsidiaries) shall be converted into the right to receive in cash the Per
Share Amount (the "Merger Consideration").
(b) All shares of common stock, par value $.01 per share, of Merger Sub
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted at the Effective Time into such number of newly issued shares of
common stock of the Surviving Corporation as shall equal the sum of (x) the
number of shares of Company Common Stock outstanding immediately prior to the
Effective Time and (y) the number of shares of Company Common Stock underlying
options to purchase Company Common Stock cashed out by Parent pursuant to
Section 2.07.
(c) Each share of Company Common Stock owned by Company as treasury stock
or owned by any subsidiary of Company shall be canceled.
(d) All shares of Company Common Stock shall be canceled and retired, and
each certificate representing any such shares of Company Common Stock shall
thereafter represent only the right to receive the Merger Consideration payable
in exchange for such shares of Company Common Stock upon the surrender of such
certificate for payment in accordance with Section 2.08. The shares of Merger
Sub shall become the shares of Company.
(e) Notwithstanding anything in this Agreement to the contrary, shares of
Company Common Stock which are outstanding immediately prior to the Effective
Time and which are held by stockholders who (a) shall not have voted such
shares in favor of the Merger and (b) shall have delivered to Company a written
demand for appraisal of such shares in the manner provided in Section 262 of
the DGCL (the "Dissenting Shares") shall not be converted as described in this
Section 2.06, but instead the holders thereof shall be entitled to payment of
the appraised value of such shares
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<PAGE>
in accordance with the provisions of such Section 262; provided, however, that
(i) if any holder of Dissenting Shares shall subsequently deliver a written
withdrawal of its demand for appraisal of such shares (with the written
approval of the Surviving Corporation, if such withdrawal is not tendered
within 60 days after the Closing Date), or (ii) if any holder fails to
establish such holder's entitlement to appraisal rights as provided in such
Section 262, or (iii) if neither any holder of Dissenting Shares nor the
Surviving Corporation has filed a petition demanding a determination of the
value of all Dissenting Shares within the time provided in such Section 262,
such holder or holders (as the case may be) shall forfeit the right to
appraisal of such shares and such shares shall thereupon be deemed to have been
converted into the right to receive, and to have become exchangeable for, as of
the Effective Time, the Merger Consideration applicable thereto. Each holder
of Dissenting Shares shall have only such rights and remedies as are granted to
such holder under Section 262 of the DGCL. Holders of Dissenting Shares shall
not, after the Effective Time, be entitled to vote for any purpose or be
entitled to the payment of dividends or other distributions (except dividends
or other distributions payable to stockholders of record prior to the Effective
Time).
SECTION 2.07 Effect on Company Options. Promptly after the Effective
-------------------------
Time, each holder of options to acquire shares of Company Common Stock granted
under any stock option plan of the Company, whether or not such options are
then exercisable, will be entitled to receive an amount in cash equal to the
difference between (x) the product of the number of shares of Company Common
Stock covered by such option multiplied by the Merger Consideration, and (y)
the aggregate option exercise price payable upon exercise of such option.
SECTION 2.08 Payment for Shares. (a) Prior to the Effective Time, Parent
------------------
shall designate a bank or trust company to act as Paying Agent in the Merger
(the "Paying Agent"). At or prior to the Effective Time, Parent will take all
steps necessary to enable and cause the Surviving Corporation to provide the
Paying Agent funds necessary to make the payments contemplated by Sections 2.06
and 2.07. Any funds remaining with the Paying Agent three months after the
Effective Time shall be released and repaid by the Paying Agent to the
Surviving Corporation, after which time persons entitled thereto may look,
subject to applicable escheat and other similar laws, only to the Surviving
Corporation for payment thereof.
(b) As soon as practicable after the Effective Time, Parent shall cause
the Paying Agent to mail to each record holder, as of the Effective Time, of an
outstanding certificate or certificates which immediately prior to the
Effective Time represented shares of
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<PAGE>
Company Common Stock (the "Certificates") a form letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to
the Certificates shall pass, only upon proper delivery of the Certificates to
the Paying Agent) and instructions for use in effecting the surrender of the
Certificates for payment therefor. Upon surrender to the Paying Agent of a
Certificate, together with such letter of transmittal duly executed, the holder
of such Certificate shall be entitled to receive in exchange therefor an amount
equal to the product of the number of shares of Company Common Stock
represented by such Certificate and the Merger Consideration, and such
Certificate shall forthwith be cancelled. No interest will be paid or accrued
on the cash payable upon the surrender of the Certificates. If payment is to
be made to a person other than the person in whose name the Certificate
surrendered is registered, it shall be a condition of payment that the
Certificate so surrendered shall be properly endorsed or otherwise in proper
form for transfer and that the person requesting such payment shall pay any
transfer or other taxes required by reason of the payment to a person other
than the registered holder of the Certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this
Section 2.08, each Certificate (other than Certificates representing shares of
Company Common Stock held by Company or any subsidiary of Company and
Dissenting Shares) shall represent for all purposes the right to receive the
Merger Consideration in cash multiplied by the number of shares of Company
Common Stock evidenced by such Certificate, without any interest thereon.
SECTION 2.09 Transfers. From and after the Effective Time, there shall
---------
be no transfers on the stock transfer books of Company or the Surviving
Corporation of shares of Company Common Stock. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged as provided in this Article II.
SECTION 2.10 Special Meeting. (a) If required by applicable law in
---------------
order to consummate the Merger, Company, acting through its Board of Directors,
shall, in accordance with applicable law and subject to the applicable
provisions of this Agreement:
(i) duly call, give notice of, convene and hold a special meeting
(the "Special Meeting") of its shareholders as soon as practicable
following the expiration or termination of the Offer for the purpose of
considering and taking action upon the Merger and this Agreement;
(ii) file with the SEC under the Exchange Act, a Proxy Statement (as
hereinafter defined) and use its best efforts to
-8-
<PAGE>
obtain and furnish the information required to be included by it in the
Proxy Statement and, after consultation with Parent, to respond promptly
to any comments made by the SEC with respect to the Proxy Statement and
any preliminary version thereof and cause the Proxy Statement to be mailed
to its shareholders at the earliest practicable time following the
expiration or termination of the Offer or at such other time as Parent
shall direct following consultation with Company;
(iii) include in the Proxy Statement the recommendation of its Board
of Directors that shareholders of Company vote in favor of the approval of
this Agreement and the Merger and use its best efforts to obtain the
necessary approval of this Agreement and the Merger by its shareholders.
(b) Parent agrees that, at the Special Meeting, all of the shares of
Company Common Stock then owned by Parent and Merger Sub will be voted in favor
of the Merger.
(c) As used in this Agreement, the term "Proxy Statement" means the
letter to shareholders, notice of meeting, proxy statement and form of proxy,
or the information statement, as the case may be, to be distributed to
shareholders in connection with the Merger, including any schedules required to
be filed with the SEC in connection therewith.
SECTION 2.11 Merger Without Meeting of Shareholders. Notwithstanding the
--------------------------------------
foregoing Section 2.10, in the event that Parent, Merger Sub and any other
subsidiary of Parent shall acquire an aggregate of at least 90 percent of the
outstanding shares of Company Common Stock, the Parties agree, at the request
of Parent or Merger Sub, to take all necessary and appropriate action to cause
the merger of Merger Sub with and into Company to become effective as soon as
practicable after the expiration of the Offer or at such other time as Parent
shall direct following consultation with Company, without a meeting of
shareholders of Company, in accordance with Section 253 of the DGCL.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company represents and warrants to Parent and Merger Sub as follows:
SECTION 3.01 Organization. It and each of its Significant Subsidiaries
------------
is a corporation duly organized, validly existing and in good standing under
the laws of their respective jurisdictions of incorporation and it has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on
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<PAGE>
its business as now being conducted. It and each of its subsidiaries is duly
qualified or licensed and in good standing to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except in such
jurisdictions where the failure to be so duly qualified or licensed and in good
standing would not, individually or in the aggregate, have a material adverse
effect on the business, operations, assets, financial condition or results of
operations of Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"). It owns directly all of the outstanding capital stock of
each of its Significant Subsidiaries except as listed on Schedule 3.01 of the
Disclosure Statement. As used in this Agreement a "Significant Subsidiary"
means a corporation or other entity which is a "significant subsidiary" of
Company within the meaning of Rule 1-02(v) of Regulation S-X of the Securities
and Exchange Commission ("SEC").
SECTION 3.02 Capitalization. Its authorized capital stock consists of
--------------
25,000,000 shares of Company Common Stock and 10,000,000 shares of Preferred
Stock, par value $.01 per share ("Company Preferred Stock" and, together with
Company Common Stock "Company Shares"). As of the date hereof, there are
9,527,303 shares of Company Common Stock issued and outstanding, no shares of
Company Preferred Stock issued and outstanding and no Company Shares held in
its treasury. As of the date hereof, there were reserved under the stock
option plans of Company, all of which are listed on Schedule 3.02 of the
Disclosure Statement (the "Company Plans"), 129,559 shares of Company Common
Stock for issuance upon exercise of outstanding options. Except for the
options to receive Company Common Stock under the Company Plans, there are not
now, and at the Effective Time there will not be, any existing options,
warrants, calls, subscriptions, or other rights, agreements or commitments
obligating Company or any of its subsidiaries to issue, transfer or sell any
shares of capital stock of Company or any of its subsidiaries or any other
securities convertible into or evidencing the right to subscribe for any such
shares. All issued and outstanding shares of Company Common Stock are duly
authorized and validly issued, fully paid, non-assessable and free of
preemptive rights with respect thereto.
SECTION 3.03 Authority. (a) Company has full corporate power and
---------
authority to execute and deliver this Agreement and, subject to the requisite
approval of its stockholders, to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized and
approved by its Board of Directors, and no corporate proceedings other than the
requisite approval by its stockholders are necessary to authorize this
Agreement or the consummation of the transactions
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<PAGE>
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Company and, assuming this Agreement constitutes a legal, valid
and binding agreement of the other Parties hereto, it constitutes a legal,
valid and binding agreement of Company, enforceable against Company in
accordance with its terms.
(b) Company's Board of Directors has taken all appropriate and necessary
action such that the provision of Section 203 of the DGCL will not apply to the
transactions contemplated by this Agreement.
SECTION 3.04 No Violations; Consents and Approvals. (a) Neither the
-------------------------------------
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby nor compliance by Company with any of the
provisions hereof will (i) subject to obtaining the requisite approval of its
stockholders, violate any provision of its certificate of incorporation or by-
laws, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default, or give rise to any right of
termination, cancellation or acceleration or any right which becomes effective
upon the occurrence of a merger, consolidation or change in control, under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture
or other instrument of indebtedness for money borrowed to which it or any of
its subsidiaries is a party, or by which it or any of its subsidiaries or any
of their respective properties is bound, or (iii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both)
a default, or except as set forth in Schedule 3.04 of the Disclosure Statement
give rise to any right of termination, cancellation or acceleration or any
right which becomes effective upon the occurrence of a merger, consolidation or
change in control, under, any of the terms, conditions or provisions of any
license, franchise, permit or agreement to which it or any of its subsidiaries
is a party, or by which it or any of its subsidiaries or any of their
respective properties is bound, or (iv) violate any statute, rule, regulation,
order or decree of any public body or authority by which it or any of its
subsidiaries or any of its respective properties is bound, excluding from the
foregoing clauses (iii) and (iv) violations, breaches, defaults or rights
which, either individually or in the aggregate, would not have a Material
Adverse Effect or materially impair its ability to consummate the transactions
contemplated hereby or for which it has received or, prior to the Merger, shall
have received appropriate consents or waivers.
(b) No filing or registration with, notification to, or authorization,
consent or approval of, any governmental entity is required by Company in
connection with the execution and delivery of this Agreement or the
consummation by it of the transactions contemplated hereby, except (i) in
connection with the applicable
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<PAGE>
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (ii) in connection, or in compliance, with the
provisions of the Exchange Act, (iii) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware, (iv) such filings and
consents as may be required under any environmental law pertaining to any
notification, disclosure or required approval triggered by the Merger or the
transactions contemplated by this Agreement, (v) filings with, and approval of,
the NASDAQ and the SEC with respect to the deregistration of Company Common
Stock, (vi) such consents, approvals, orders, authorizations, notifications,
approvals, registrations, declarations and filings as may be required under the
corporation, takeover or blue sky laws of various states and (vii) such other
consents, orders, authorizations, registrations, declarations and filings not
obtained prior to the Effective Time the failure of which to be obtained or
made would not, individually or in the aggregate, have a Material Adverse
Effect, or materially impair Company's ability to perform its obligations
hereunder or prevent the consummation of any of the transactions contemplated
hereby.
SECTION 3.05 SEC Documents; Financial Statements. (a) Company has made
-----------------------------------
available to Parent and Merger Sub copies of each registration statement,
report, proxy statement or information statement heretofore filed by it with
the SEC (the "SEC Documents"). As of their respective dates, Company's SEC
Documents complied in all material respects with the applicable requirements of
the Securities Act of 1933, as amended (the "Securities Act") and the Exchange
Act, as the case may be, none of such SEC Documents contained any untrue
statement of material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and Company's Board
of Directors consists of the Directors identified in its 1995 proxy statement.
(b) Neither Company nor any of its subsidiaries, nor any of their
respective assets, businesses or operations, is as of the date of this
Agreement a party to, or is bound or affected by, or receives benefits under
any contract or agreement or amendment thereto, that in each case would be
required to be filed as an exhibit to a Form 10-K as of the date of this
Agreement that has not been filed as an exhibit to an SEC Document filed prior
to the date of this Agreement.
(c) As of their respective dates, the consolidated financial statements
included in Company's SEC Documents complied as to form in all material
respects with then applicable accounting requirements and the published rules
and regulations of the SEC with respect thereto, were prepared in accordance
with generally
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<PAGE>
accepted accounting principles applied on a consistent basis during the periods
involved (except as may be indicated therein or in the notes thereto) and
fairly presented its consolidated financial position and that of its
consolidated subsidiaries as at the dates thereof and the consolidated results
of their operations and statements of cash flows for the periods then ended
(subject, in the case of unaudited statements, to the lack of footnotes
thereto, to normal year-end audit adjustments and to any other adjustments
described therein).
(d) The SEC Documents include or there has otherwise been delivered to
Parent (i) consolidated balance sheets as of December 31, 1994 and March 31,
1995; and (ii) consolidated statements of income for the year ended December
31, 1994 and the three months ended March 31, 1995. The foregoing consolidated
audited balance sheet as at December 31, 1994 is sometimes herein referred to
as the "Balance Sheet." The foregoing consolidated unaudited balance sheet as
of March 31, 1995 is sometimes herein referred to as the "Interim Balance
Sheet."
(e) There are no liabilities or obligations of Company and its
consolidated subsidiaries accrued, absolute, or contingent and whether due or
to become due, other than liabilities and obligations (i) reflected, or
adequately reserved against, in the Interim Balance Sheet, (ii) arising in the
ordinary course of business subsequent to the date of the Interim Balance
Sheet, or (iii) which, individually or in the aggregate, would not have a
Material Adverse Effect.
SECTION 3.06 Absence of Certain Changes. Since March 31, 1995, Company
--------------------------
has not (a) suffered any event or occurrence which would have a Material
Adverse Effect or (b) implemented any change in accounting methods, principles
or practices except as required or permitted by generally accepted accounting
principles.
SECTION 3.07 Legal Proceedings. Except as disclosed in Company's SEC
-----------------
Documents filed prior to the date hereof, or reflected or adequately reserved
against in its Interim Balance Sheet, there is no (i) claim, action, suit or
proceeding pending or, to its best knowledge, threatened, against or relating
to it or any of its subsidiaries or any of their respective assets before any
court or governmental or regulatory authority or body or arbitration tribunal
or (ii) outstanding judgment, order, writ, injunction or decree, or
application, request or motion therefor, of any court, governmental agency or
arbitration tribunal in a proceeding to which Company or any of its
subsidiaries is a party, except any such claim, action, suit or proceeding or
judgment, order, writ, injunction, decree, application, request or motion
which, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
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SECTION 3.08 Compliance with Laws and Agreements. Neither Company nor
-----------------------------------
any of its subsidiaries is (i) in violation of or noncompliance with any
statute, law, ordinance, regulation, rule or order of any foreign, federal,
state or local government or any other governmental department or agency, or
any judgment, decree or order of any court, applicable to its business or
operations or (ii) in violation, breach or default (with or without due notice
or lapse of time or both) under any of the terms, conditions or provisions of
any agreement to which it is a party, or by which its properties are bound,
except where any such violations or failures to comply or breaches or defaults
would not, individually or in the aggregate, have a Material Adverse Effect.
Company and its subsidiaries have all permits, licenses and franchises from
governmental agencies required to conduct their businesses as now being
conducted, except for such permits, licenses and franchises the absence of
which would not, individually or in the aggregate, have a Material Adverse
Effect.
SECTION 3.09 Proxy Statement. If a Proxy Statement is required for the
---------------
consummation of the Merger under applicable law, the Proxy Statement shall
comply in all material respects with the Exchange Act; and any such Proxy
Statement will not, at the time it is filed with the SEC or is mailed to
shareholders, or at the time of the Special Meeting or the Effective Time,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of circumstances under which they were made, not misleading; provided,
however, that no representation or warranty is made by Company concerning any
information with respect to Parent or its affiliates supplied in writing by
Parent or any such affiliate to Company specifically for inclusion in the Proxy
Statement.
SECTION 3.10 State Antitakeover Statutes. No "business combination,"
---------------------------
"moratorium," "control share" or other state antitakeover statute or regulation
(x) prohibits or restricts Company's ability to perform its obligations under
this Agreement or its ability to consummate the transactions contemplated
hereby, (y) would have the effect of invalidating or voiding this Agreement, or
any material provision hereof, or (z) would subject Parent or Merger Sub to any
material impediment or condition in connection with the exercise of any of
their respective rights under this Agreement or with respect to Company or the
Surviving Corporation.
SECTION 3.11 Broker's Fees. Except for the engagement of The Chicago
-------------
Corporation by Company or as set forth in Schedule 3.11 of the Disclosure
Statement, neither Company nor any of its subsidiaries or any of their
respective directors or officers has employed any broker, finder or financial
advisor or incurred any
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liability for any broker's fees, commissions, or financial advisory or finder's
fees in connection with any of the transactions contemplated by this Agreement.
SECTION 3.12 Environmental Matters. Company and its subsidiaries are
---------------------
each in compliance with all environmental laws, regulations and practices
applicable to their respective businesses and properties ("Applicable
Environmental Standards"), except where the failure to so be in compliance
would not have a Material Adverse Effect. Schedule 3.12 of the Disclosure
Statement lists any notices, requests or directives received by Company or any
subsidiary from any regulatory agency or authority or any other third party
since January 1, 1989 concerning any alleged non-compliance by Company or any
subsidiary with Applicable Environmental Standards or any suggestions, requests
or demands for remedial or prophylactic measures concerning their respective
businesses and properties. Except as listed in Schedule 3.12 of the Disclosure
Statement, there have been no releases, or any claims that there have been any
releases, of any hazardous or toxic substances, materials, wastes, pollutants,
contaminants, petroleum products, asbestos or pcbs into the environment or
within the buildings or structures owned or leased by Company or its
subsidiaries. No hazardous substances (including, without limitation, asbestos
or pcbs) are used or employed within products manufactured at any time by
Company or its subsidiaries or contained within the buildings or structures
owned or leased by Company or its subsidiaries. The Company has no knowledge
of any basis for a claim that it is subject to any material liability under
Applicable Environmental Standards.
SECTION 3.13 Intellectual Property Rights. The Company or its subsidiaries
----------------------------
own or believe they have the right to use all Intellectual Property Rights (as
defined below in this Section 3.13) necessary to the conduct of their
respective businesses. Schedule 3.13 of the Disclosure Statement contains a
worldwide list of all patents, registered trademarks, registered copyrights and
mask works and any application for the foregoing owned by the Company or its
subsidiaries. The Company and/or its subsidiaries have clear and unencumbered
title to the Intellectual Property Rights set forth in Schedule 3.13 of the
Disclosure Statement and such title has not been challenged (pending or
threatened) by others except for the encumbrances listed in Schedule 3.13 of
the Disclosure Statement. Schedule 3.13 of the Disclosure Statement also
contains a list of invention disclosures for which applications for patent are
in progress. No material rights or licenses to use the Intellectual Property
Rights for the manufacture or assembly of products have been granted or
acquired by the Company or its subsidiaries except those listed in Schedule
3.13 of the Disclosure Statement. Except as listed in Schedule 3.13 of the
Disclosure Statement, there have been no claims or
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assertions made or threatened by others that the Company does not own or have
the right to use all Intellectual Property Rights or that the Company has
infringed or will infringe any Intellectual Property Rights of others by the
sale of products or any other activity in the preceding six year period and, to
the knowledge of the Company, there has been no such infringement by the
Company during this period. Except as listed in Schedule 3.13 of the
Disclosure Statement, the Company has no knowledge of any infringement of
Intellectual Property Rights of the Company by others. All such patents,
registered trademarks, service marks, and copyrights owned by the Company or
its subsidiaries are in good standing, and are recorded in the name of Company
or its subsidiaries. True and complete copies of all material listed in
Schedule 3.13 of the Disclosure Statement (except material for foreign patents,
trademarks and copyrights) will promptly be delivered to Parent.
"Intellectual Property Rights" shall mean and include rights relating to
patents, trademarks, service marks, trade names, copyrights, mask works,
inventions, processes, trade secrets, know-how, confidentiality agreements,
consulting agreements, software and documentation relating to the manufacture,
marketing and maintenance of products.
SECTION 3.14 Taxes. Except as disclosed on Schedule 3.14 of the
-----
Disclosure Statement: (i) the Company and its subsidiaries have prepared and
timely filed or will timely file with the appropriate governmental agencies all
material franchise, income and all other material Tax (as hereinafter defined)
returns and reports (Tax returns and reports are hereinafter collectively
referred to as "Tax Returns") required to be filed for any period on or before
the Effective Time, taking into account any extension of time to file granted
to or obtained on behalf of the Company and/or its subsidiaries (Schedules for
which the past three fiscal years have been delivered to Parent to be followed
by delivery of returns to Parent as requested); (ii) all material Taxes of the
Company and its subsidiaries due (whether or not reported) in respect of the
pre-Merger period have been paid in full to the proper authorities or fully
accrued for with respect to fiscal periods for which there are publicly
available financial statements in such statements and otherwise on the books at
the Company, other than such Taxes as are being contested in good faith by
appropriate proceedings and are adequately reserved for in accordance with
generally accepted accounting principles; (iii) all deficiencies resulting from
Tax examinations of federal, state and foreign income, sales and franchise and
all other material Tax Returns filed by the Company and its subsidiaries have
either been paid or adequately reserved for in accordance with generally
accepted accounting principles; (iv) to the best knowledge of the Company, no
deficiency has been asserted or assessed against the Company or
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any of its subsidiaries and is pending, and no examination of the Company or
any of its subsidiaries is pending or threatened for any material amount of Tax
by any taxing authority (with respect to any such action, Schedule 3.14 of the
Disclosure Statement sets forth the periods at issue and the category of Tax,
and the examining authority's and any corresponding revenue agents' reports
relating to the issue have been delivered to Parent); (v) no extension of the
period for assessment or collection of any material Tax is currently in effect
and no extension of time within which to file any material Tax Return has been
requested, which Tax Return has not since been filed; (vi) no material Tax
liens have been filed with respect to any Taxes; (vii) the Company and each of
its subsidiaries have not agreed to make any Section 481 adjustment or similar
adjustment in any jurisdiction by reason of a change in their accounting
methods that would affect the taxable income or deductions of the Company or
any of its subsidiaries for any period ending after the Effective Time; (viii)
the Company and its subsidiaries have made timely payments of the Taxes
required to be deducted and withheld from the wages paid to their employees;
(ix) there are no Tax sharing agreements or arrangements under which the
Company or any subsidiary will have any obligation or liability on or after the
Effective Time; (x) the Company and its subsidiaries have the net operating
loss carryforwards set forth on Schedule 3.14 of the Disclosure Statement; (xi)
the Company and its subsidiaries have no foreign losses as defined in Section
904(f)(2) of the Code; (xii) neither the Company nor any of its subsidiaries
has unused foreign tax credits; (xiii) to the best knowledge of the Company,
all payments, other than payments of dividends (including any payments deemed
to be the equivalent of a dividend) or Taxes, made or incurred by the Company
or any of its subsidiaries since December 31, 1993 will be deductible or
capitalizable for Tax purposes including any payments made by the Company or
any of its subsidiaries pursuant to any transaction contemplated by this
Agreement, except for any payments the failure of which to be deductible or
capitalizable would not, individually or in the aggregate, have a Material
Adverse Effect; (xiv) to the best knowledge of the Company, no income under any
arrangement or understanding to which the Company or any of its subsidiaries is
a party will be attributed to the Company or any of its subsidiaries which is
not represented by income actually attributable to the same entity; (xv) to the
best knowledge of the Company, there are no transfer pricing agreements made
with any taxation authority; (xvi) no assets of the Company or any of its
subsidiaries is held in an arrangement for which partnership Tax Returns are
being filed and neither the Company nor any of its subsidiaries is a partner in
any partnership; (xvii) neither the Company nor any of its subsidiaries owns
any interest in any "controlled foreign corporation" (within the meaning of
Section 957 of the Code), "passive foreign investment company" (within the
meaning of Section 1296 of the Code) or other entity the income of which is
required
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to be included in the income of the Company or such subsidiary; (xviii) neither
the Company nor any of its subsidiaries has made an election under Section
341(f) of the Code; and (xix) the Company is not obligated to make any payments
that would constitute excess parachute payments within the meaning of Section
280G of the Code.
"Tax" or "Taxes" shall mean all federal, state, local and foreign taxes,
duties, levies, charges and assessments of any nature, including social
security payments and deductibles relating to wages, salaries and benefits and
payments to sub-contractors (to the extent required under applicable Tax law),
and also including all interest, penalties and additions imposed with respect
to such amounts.
SECTION 3.15 Employee Benefit Plans; ERISA. (a) Except as set forth in
-----------------------------
Schedule 3.15 of the Disclosure Statement, there are no "employee pension
benefit plans" as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), covering employees (or former
employees) employed in the United States and maintained or contributed to by
the Company or any of its subsidiaries or any of their ERISA Affiliates (as
hereinafter defined), or to which the Company or any of its subsidiaries or any
of their ERISA Affiliates contributes or is obligated to make payments
thereunder or otherwise may have any liability ("Pension Benefits Plans"). For
purposes of this Agreement, the term "ERISA Affiliate" shall mean any person
(as defined in Section 3(9) of ERISA) that is a member of any group of persons
described in Section 414(b), (c), (m) or (o) of the Code of which the Company
or a subsidiary is a member.
(b) Company has delivered to Parent true and complete copies of all
"welfare benefit plans" (as defined in Section 3(1) of ERISA) covering
employees (or former employees) employed in the United States, maintained or
contributed to by the Company or any of its subsidiaries ("Welfare Plans"),
and, to the extent covering employees (or former employees) employed in the
United States, all stock bonus, stock option, restricted stock, stock
appreciation right, stock purchase, bonus, incentive, deferred compensation,
severance and vacation plans maintained or contributed to by the Company or a
subsidiary of the Company. The Company and its subsidiaries do not have and
have not had any multiemployer plans (as defined in Section 3(37) of ERISA)
covering employees (or former employees) employed in the United States to which
the Company or any of its subsidiaries or any of their ERISA Affiliates is
required to make contributions or otherwise may have any liability.
(c) The Company and each of its subsidiaries, and each of the Pension
Benefit Plans and Welfare Plans, are in compliance with the applicable
provisions of ERISA except where the failure to comply
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<PAGE>
would not, individually or in the aggregate, have a Material Adverse Effect.
(d) All contributions to, and payments from, and reports in respect of,
the Pension Benefit Plans and the Welfare Plans which are required to have been
made in accordance therewith and, when applicable, ERISA or the Code have
been timely made except where the failure to make such contributions or
payments on a timely basis would not, individually or in the aggregate, either
impair the Company's ability to consummate the Offer, the Merger and the other
transactions contemplated hereby or have a Material Adverse Effect.
SECTION 3.16 Disclosure. No representation or warranty by the Company
----------
and no statement or information relating to the Company or any of its
subsidiaries contained herein, or in any certificate furnished by or on behalf
of the Company to Parent or Merger Sub in connection herewith, contains or will
contain any untrue statement of a material fact or omits or will omit to state
a material fact necessary in order to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub hereby jointly and severally represent and warrant
to Company as follows:
SECTION 4.01 Organization. Each is a corporation duly organized, validly
------------
existing and in good standing under the laws of their respective jurisdictions
of incorporation and each has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted.
SECTION 4.02 Authority. Each has full corporate power and authority to
---------
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized and approved by their respective Boards of Directors and by Parent
as the sole shareholder of Merger Sub, and no other corporate proceedings are
necessary to authorize this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Parent and Merger Sub and, assuming this Agreement constitutes a
legal, valid and binding agreement of Company, it constitutes a
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legal, valid and binding agreement of Parent and Merger Sub, enforceable
against each of them in accordance with its terms.
SECTION 4.03 No Violations; Consents and Approvals. (a) Neither the
-------------------------------------
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby nor compliance by Parent and Merger Sub with
any of the provisions hereof will violate any provision of their respective
charters or by-laws.
(b) No filing or registration with, notification to, or authorization,
consent or approval of, any governmental entity is required by Parent or Merger
Sub in connection with the execution and delivery of this Agreement or the
consummation by either of the transactions contemplated hereby, except (i) in
connection with the applicable requirements of the HSR Act, (ii) in connection,
or in compliance, with the provisions of the Exchange Act, (iii) the filing of
the Certificate of Merger with the Secretary of State of the State of Delaware,
(iv) such filings and consents as may be required under any environmental law
pertaining to any notification, disclosure or required approval triggered by
the Merger or the transactions contemplated by this Agreement, (v) such
consents, approvals, orders, authorizations, notifications, approvals,
registrations, declarations and filings as may be required under the
corporation, takeover or blue sky laws of various states and (vi) such other
consents, orders, authorizations, registrations, declarations and filings not
obtained prior to the Effective Time the failure of which to be obtained or
made would not, individually or in the aggregate, materially impair the ability
of Parent or Merger Sub to perform their respective obligations hereunder or
prevent the consummation of any of the transactions contemplated hereby.
SECTION 4.04 Legal Proceedings. There is no (i) claim, action, suit or
-----------------
proceeding pending or, to Parent's best knowledge, threatened, against or
relating to it or any of its subsidiaries or any of their respective assets
before any court or governmental or regulatory authority or body or arbitration
tribunal or (ii) outstanding judgment, order, writ, injunction or decree, or
application, request or motion therefor, of any court, governmental agency or
arbitration tribunal in a proceeding to which Parent or any of its subsidiaries
is a party, except any such claim, action, suit or proceeding or judgment,
order, writ, injunction, decree, application, request or motion which would
not, individually or in the aggregate, materially impair the ability of Parent
or Merger Sub to perform their respective obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
SECTION 4.05 Proxy Statement. If a Proxy Statement is required for
---------------
consummation of the Merger under applicable law, none of the information to be
supplied by Parent or Merger Sub for
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inclusion or incorporation by reference in such Proxy Statement at the time of
its mailing to stockholders of Company and at the time of its stockholders
meeting, will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading.
SECTION 4.06 State Antitakeover Statutes. No "business combination,"
---------------------------
"moratorium," "control share" or other state antitakeover statute or regulation
(x) prohibits or restricts the ability of Parent or Merger Sub to perform their
respective obligations under this Agreement or their ability to consummate the
transactions contemplated hereby, (y) would have the effect of invalidating or
voiding this Agreement, or any material provision hereof, or (z) would subject
Company to any material impediment or condition in connection with the exercise
of any of its rights under this Agreement.
SECTION 4.07 Broker's Fees. Except for the engagement of Lazard Freres &
-------------
Co. by Parent, neither Parent nor any of its subsidiaries or any of their
respective directors or officers has employed any broker, finder or financial
advisor or incurred any liability for any broker's fees, commissions, or
financial advisory or finder's fees in connection with any of the transactions
contemplated by this Agreement.
SECTION 4.08 Fairness Opinion. Parent has received the opinion of Lazard
----------------
Freres & Co. LLC to the effect that, as of May 5, 1995, the consideration
payable to Company's stockholders pursuant to the Offer and the Merger is fair
to Parent's stockholders from a financial point of view.
SECTION 4.09 Capitalization of Merger Sub. The authorized capital stock
----------------------------
of Merger Sub consists of 1,000 shares of its common stock, $.01 par value per
share. 1,000 such shares are outstanding and owned beneficially and of record
by Parent. All such outstanding shares were duly authorized and validly issued
and are fully paid and nonassessable. There are no outstanding options,
warrants or other rights to acquire any capital stock of Merger Sub.
ARTICLE V
COVENANTS
SECTION 5.01 Conduct of Business of Company. Except as contemplated by
------------------------------
this Agreement or as expressly agreed to in writing by Parent, during the
period from the date of this Agreement to the Effective Time, each of Company
and its subsidiaries will conduct its operations according to its ordinary
course of business
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consistent with past practice, and will use all commercially reasonable
efforts to preserve intact its business organization, to keep available the
services of its officers and employees and to maintain satisfactory
relationships with suppliers, distributors, customers and others having
business relationships with it and will take no action which would materially
adversely affect the ability of the Parties to consummate the transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, and except as otherwise expressly provided in this Agreement, prior
to the Effective Time, Company will not nor will it permit any of its
subsidiaries to, without the prior written consent of Parent:
(a) amend its certificate of incorporation or by-laws;
(b) authorize for issuance, issue, sell, deliver, grant any options for,
or otherwise agree or commit to issue, sell or deliver any shares of any class
of its capital stock or any securities convertible into shares of any class of
its capital stock, except pursuant to and in accordance with the terms of
currently outstanding options;
(c) split, combine or reclassify any shares of its capital stock, declare,
set aside or pay any dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its capital stock or
purchase, redeem or otherwise acquire any shares of its own capital stock or
that of any of its subsidiaries;
(d) except in the ordinary course of business, consistent with past
practices (i) create, incur, assume, maintain or permit to exist any long-term
debt or any short-term debt for borrowed money other than under existing lines
of credit or replacements thereof, (ii) assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently or otherwise) for
the obligations of any person other than its subsidiaries, or (iii) make any
loans, advances or capital contributions to, or investments in, any person
other than its subsidiaries, except pursuant to existing commitments;
(e) except as otherwise expressly contemplated by this Agreement or as set
forth in Schedule 5.01 of the Disclosure Statement, (i) increase in any manner
the compensation of any of its directors, officers or other employees; (ii) pay
or agree to pay any pension, retirement allowance or other employee benefit not
required, or enter into or agree to enter into any agreement or arrangement
with such director, officer or employee, whether past or present, relating to
any such pension, retirement allowance or other employee benefit except as
required under currently existing agreements, plans or arrangements; (iii)
grant any severance or termination pay to, or enter into any employment or
severance
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agreement with, any of its directors, officers or other employees; or (iv)
except as may be required to comply with applicable law, become obligated
(other than pursuant to any new or renewed collective bargaining agreement)
under any new pension plan, welfare plan, multi-employer plan, employee benefit
plan, benefit arrangement, or similar plan or arrangement, which was not in
existence on the date hereof, including any bonus, incentive, deferred
compensation, stock purchase, stock option, stock appreciation right, group
insurance, severance pay, retirement or other benefit plan, agreement or
arrangement, or employment or consulting agreement with or for the benefit of
any person, or amend any of such plans or any of such agreements in existence
on the date hereof;
(f) except as otherwise expressly contemplated by this Agreement, enter
into any other material agreements, commitments or contracts, except
agreements, commitments or contracts for the purchase, sale or lease of goods
or services in the ordinary course of business, consistent with past practices;
(g) except in the ordinary course of business, consistent with past
practices, or as contemplated by this Agreement, authorize, recommend, propose
or announce an intention to authorize, recommend or propose, or enter into, any
agreement in principle or any agreement with respect to any plan of liquidation
or dissolution, any acquisition of a material amount of assets or securities,
any sale, transfer, lease, license, pledge, mortgage, or other disposition or
encumbrance of a material amount of assets or securities or any material change
in its capitalization, or any entry into a material contract or any amendment
or modification of any material contract or any release or relinquishment of
any material contract rights;
(h) knowingly undertake any act, or suffer to exist any condition,
causing any insurance policy naming it as a beneficiary or a loss payee to be
canceled or terminated, except in the ordinary course of business and
consistent with past practice and following written notice to Parent;
(i) enter into any hedging, option, derivative or other similar
transaction, except in the ordinary course of business and consistent with past
practices and following written notice to Parent; or
(j) agree to do any of the foregoing.
SECTION 5.02 Acquisitions. Prior to the Effective Time, Company shall
------------
keep Parent advised of the status of all discussions and negotiations
concerning possible acquisitions and divestitures of any corporations or
businesses by Company and Company agrees
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that without the prior written consent of Parent it shall not make, or agree to
make, any acquisition which requires the issuance of shares of capital stock of
Company or any security convertible into, exchangeable for or exercisable for
shares of such capital stock.
SECTION 5.03 Acquisition Proposals. Parent and Merger Sub acknowledge
---------------------
that Company has had discussions with potential acquirors of Company and has
provided such potential acquirors with information (including non-public
information) concerning Company. Company represents and warrants, to, and
covenants and agrees with, Parent and Merger Sub that neither Company nor any
of its subsidiaries has any agreement, arrangement or understanding with any
such potential acquiror that would be violated by reason of the execution,
delivery and consummation of this Agreement. Company also agrees that from and
after the date hereof and until the earlier of the consummation of the Merger
or the termination of this Agreement, it shall, and shall cause its
subsidiaries and shall use its best efforts to cause the officers, directors,
investment bankers and attorneys of Company and its subsidiaries to, (a)
discontinue the solicitation of potential acquirors of Company and not solicit
(or authorize any person to solicit), directly or indirectly, any further
inquiries, proposals or offers from any person relating to any acquisition or
purchase of all or substantially all the assets of, or any equity interest in,
or any merger, consolidation or business combination with, Company or any of
its subsidiaries (the foregoing being referred to as an "Acquisition
Transaction"), (b) not enter into any agreement with respect to any Acquisition
Transaction, and (c) except in the event that there is an unsolicited written
proposal for an Acquisition Transaction from a bona fide third party, and then
---- ----
only if (i) three business days' written notice shall have been given to
Parent; and (ii) (A) such proposal is not expressed as subject to the
arrangement of financing, (B) Company's Board of Directors shall have been
advised in writing by its investment banker that such third party appears to be
financially capable of consummating an Acquisition Transaction that would yield
a higher value to the Company's stockholders than will the Offer and the
Merger, (C) Company's Board of Directors shall have been advised, by the
written opinion of outside counsel to Company, that any failure to so act would
constitute a breach of the fiduciary responsibilities of the Board of Directors
to the stockholders of Company and (D) the Board of Directors, after weighing
such advice, determines that taking such action is more likely than not to lead
to an Acquisition Transaction with such third party that would yield a higher
value to Company's stockholders than will the Offer and the Merger and that
failing to so act would constitute a breach of the Board's fiduciary duties,
not elicit any discussions of, participate in any negotiations regarding,
cooperate with, facilitate or encourage an Acquisition Transaction or furnish
to
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any other person any non-public information concerning Company in connection
therewith. Company shall immediately notify Parent if any proposal or offer
with respect to an Acquisition Transaction is received by Company and
communicate to Parent the terms of any such proposal or offer.
SECTION 5.04 Access to Information. (a) From the date of this Agreement
---------------------
until the Effective Time, Company will give Parent and its authorized
representatives (including counsel, environmental and other consultants,
financial advisors, accountants and auditors) reasonable access during normal
business hours to all facilities, personnel and operations and to all books and
records of it and its subsidiaries, will permit Parent to make such inspections
as it may reasonably require and will cause its officers and those of its
subsidiaries to furnish Parent with such financial and operating data and other
information with respect to its business and properties as Parent may from time
to time reasonably request; provided, however, that access to intellectual
property and other proprietary information of third parties (including, without
limitation, Silcon A/S) and information access to which is otherwise restricted
by agreements with joint venture partners or other third parties shall be
withheld from Parent and such representatives except to the extent disclosure
thereof is specifically authorized in writing by any such third party.
(b) Each of the Parties will hold and will cause all of the employees and
representatives of such Party and its subsidiaries to hold in strict confidence
pursuant to the Confidentiality Agreement dated April 13, 1995 between Parent
and The Chicago Corporation on behalf of Company (the "Confidentiality
Agreement") all documents and information furnished to the other in connection
with the transactions contemplated by this Agreement as if each such employee
or representative were a party thereto.
SECTION 5.05 Proxy Statement and Stockholders Meeting. (a) If required
----------------------------------------
by applicable law, Company shall file the Proxy Statement with the SEC promptly
following Merger Sub's purchase of Shares in the Offer satisfying the Minimum
Condition. Parent shall promptly furnish to Company all information, and take
such other actions, as may reasonably be requested in connection with the Proxy
Statement. The Proxy Statement shall state that the Board of Directors of the
Company has, subject to the applicable provisions of this Agreement, (i)
approved the Offer and the Merger and (ii) determined that the Offer and the
Merger taken together are fair and in the best interest of the stockholders of
Company.
(b) Company agrees that the Proxy Statement and each amendment or
supplement thereto, at the time of mailing thereof and at the time of the
meeting of stockholders of Company, will not include any untrue statement of a
material fact or omit to state a material
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fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing shall not apply to the extent that any
such untrue statement of a material fact or omission to state a material fact
was made by Company in reliance upon and in conformity with written information
concerning Parent to be furnished by it specifically for use in the Proxy
Statement. Parent agrees that none of the information to be furnished in
writing to Company specifically for use in the Proxy Statement and each
amendment or supplement thereto, at the time of mailing thereof and at the time
of the meeting of stockholders of Company, will include any untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If at any time prior to the Effective
Time any event shall occur which is required to be described in the Proxy
Statement, such event shall be so described, and an amendment or supplement
shall be promptly filed with the SEC and, as required by law, disseminated to
the stockholders of Company. Company will advise Parent and Merger Sub
promptly after it receives notice thereof, of any comments by the SEC on the
Proxy Statement and the responses thereto and of any requests by the SEC for
additional information.
(c) If required by applicable law, Company shall call the Special
Meeting, to be held as promptly as practicable in accordance with applicable
law for the purpose of voting upon the adoption of this Agreement and the
approval of the Merger.
SECTION 5.06 Board Recommendation. Company shall, through its Board of
--------------------
Directors, recommend to its stockholders approval of the Offer, the Merger and
the other transactions contemplated by this Agreement; provided, however, that
such Board of Directors may withdraw, modify or change its recommendations to
Company's stockholders in the event that there is an unsolicited written
proposal for an Acquisition Transaction from a bona fide third party, and then
---- ----
only if (i) three business days' written notice shall have been given to
Parent; and (ii) (A) such proposal is not expressed as subject to the
arrangement of financing, (B) Company's Board of Directors shall have been
advised in writing by its investment banker that such third party appears to be
financially capable of consummating an Acquisition Transaction that would yield
a higher value to Company's stockholders than will the Offer and the Merger,
(C) the Company's Board of Directors shall have been advised, by the written
opinion of outside counsel to Company, that any failure to so act would
constitute a breach of the fiduciary responsibilities of the Board of Directors
to the stockholders of Company and (D) the Board of Directors, after weighing
such advice, determines that taking such action is more likely than not to lead
to an Acquisition Transaction with such third party that would
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yield a higher value to Company's stockholders than will the Offer and the
Merger and that failing to so act would constitute a breach of the Board's
fiduciary duties. Subject to the foregoing, Company shall use all commercially
reasonable efforts to solicit from its stockholders proxies in favor of such
matters.
SECTION 5.07 Reasonable Efforts; Other Actions. Subject to the terms and
---------------------------------
conditions herein provided and applicable law, the Parties shall use all
commercially reasonable efforts promptly to take, or cause to be taken, all
other actions and do, or cause to be done, all other things necessary, proper
or appropriate under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, including, without
limitation, (i) the filing of Notification and Report Forms under the HSR Act
with the Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "Antitrust Division") and using their reasonable
best efforts to respond as promptly as practicable to all inquiries received
from the FTC or the Antitrust Division for additional information or
documentation, (ii) the obtaining of all necessary consents, approvals or
waivers under its material contracts, and (iii) the lifting of any legal bar to
the Merger.
SECTION 5.08 Public Announcements. Before issuing any press release or
--------------------
otherwise making any public statements with respect to transactions
contemplated by this Agreement, Parent and Company will consult with each other
as to its form and substance and shall not issue any such press release or make
any such public statement prior to such consultation, except as may be required
by law.
SECTION 5.09 Notification of Certain Matters. Each of Company and Parent
-------------------------------
shall give prompt notice to the other of (i) any notice of, or other
communication relating to, a default or event which, with notice or lapse of
time or both, would become a default, received by it or any of its subsidiaries
subsequent to the date of this Agreement and prior to the Effective Time, under
any contract material to the financial condition, properties, businesses or
results of operations of Company and its subsidiaries taken as a whole to which
it or any of its subsidiaries is a party or is subject, and (ii) any notice or
other communication from any third party alleging that the consent of such
third party is or may be required in connection with the transactions
contemplated by this Agreement.
SECTION 5.10 Indemnification. (a) Parent shall, and shall cause the
---------------
Surviving Corporation to, indemnify, defend and hold harmless the present and
former officers, directors, employees and agents of Company and its
subsidiaries against all losses, claims, damages, expenses or liabilities
arising out of actions or omissions or alleged actions or omissions occurring
at or prior to
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the Effective Time to the same extent and on the same terms and conditions
(including with respect to advancement of expenses) provided for in Company's
Certificate of Incorporation and By-Laws and agreements in effect at the date
hereof.
(b) For a period of six years after the Effective Time, Parent shall cause
to be maintained in effect the current policies of directors' and officers'
liability insurance maintained by the Company (provided that Parent may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are no less advantageous) with respect to
claims arising from facts or events which occurred before the Effective Time.
(c) The provisions of this Section 5.10 are intended to be for the benefit
of, and shall be enforceable by, each indemnified party hereunder, his or her
heirs and his or her representatives.
SECTION 5.11 Expenses. Except as set forth in Section 10.05, the Parties
--------
shall bear their respective expenses incurred in connection with the
transactions contemplated by this Agreement, including, without limitation, the
preparation, execution and performance of this Agreement and the transactions
contemplated hereby, and all fees and expenses of their respective investment
bankers, finders, brokers, agents, representatives, counsel and accountants.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
The respective obligations of each Party to effect the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to the Closing of each of the following conditions:
SECTION 6.01 Stockholder Approval. If required by applicable law, the
--------------------
requisite vote of the stockholders of Company necessary to consummate the
Merger shall have been obtained.
SECTION 6.02 Consents and Approvals. All necessary consents and
----------------------
approvals of any United States or any other governmental authority or any other
third party required for the consummation of the transactions contemplated by
this Agreement shall have been obtained, except for such consents and approvals
the failure to obtain which individually or in the aggregate would not have a
Material Adverse Effect; and any waiting period applicable to the consummation
of the Offer and the Merger under the HSR Act shall have expired or been
terminated.
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ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER SUB
The obligations of Parent and Merger Sub to effect the transactions
contemplated by this Agreement and to perform their other obligations to be
performed at or subsequent to the Closing shall be subject to the fulfillment
at or prior to the Closing of the following additional conditions, any one or
more of which may be waived by Parent:
SECTION 7.01 Representations and Warranties True. The representations
-----------------------------------
and warranties of Company contained herein (without regard to any materiality
exceptions contained therein) shall be true and correct on the date of this
Agreement and at and on the Closing Date as though such representations and
warranties were made at and on such date, except for such untruths or
inaccuracies which would not, individually or in the aggregate, have a Material
Adverse Effect.
SECTION 7.02 Performance. Company shall have performed and complied in
-----------
all material respects with all agreements, obligations and conditions required
by this Agreement to be performed or complied with by it on or prior to the
Closing Date.
SECTION 7.03 Certificates. Company shall furnish such certificates of
------------
appropriate officers and directors to evidence compliance with the conditions
set forth in Sections 7.01 and 7.02 as may be reasonably requested by Parent.
SECTION 7.04 Certain Proceedings. No writ, order, decree or injunction
-------------------
of a court of competent jurisdiction or governmental entity shall be in effect
against any of the Parties, and no proceedings therefor shall have been
threatened or commenced by any governmental entity, which prohibits or
restricts the consummation of the Offer or the Merger or would otherwise
restrict the Surviving Corporation's exercise of full rights to own and operate
its business in a manner which would have a Material Adverse Effect.
SECTION 7.05 Material Adverse Change. There shall not have occurred
-----------------------
since the date of this Agreement any material adverse change in the business,
operations, assets, financial condition or results of operations of Company and
its subsidiaries taken as a whole.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF COMPANY
The obligation of Company under this Agreement to effect the transactions
contemplated by this Agreement shall be subject to the fulfillment on or before
the Closing Date of each of the following
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additional conditions, any one or more or which may be waived by Company:
SECTION 8.01 Representations and Warranties True. The representations
-----------------------------------
and warranties of Parent and Merger Sub contained herein (without regard to any
materiality exceptions contained therein) shall be true and correct on the date
of this Agreement and at and on the Closing Date as though such representations
and warranties were made at and on such date, except for such untruths or
inaccuracies which would not, individually or in the aggregate, impair their
ability to consummate the transactions contemplated by this Agreement.
SECTION 8.02 Performance. Parent and Merger Sub shall have each
-----------
performed and complied in all material respects with all agreements,
obligations and conditions required by this Agreement to be performed or
complied with by either of them on or prior to the Closing Date.
SECTION 8.03 Certificates. Parent and Merger Sub shall furnish such
------------
certificates of their respective officers to evidence compliance with the
conditions set forth in Sections 8.01 and 8.02 as may be reasonably requested
by Company.
SECTION 8.04 Certain Proceedings. No writ, order, decree or injunction
-------------------
of a court of competent jurisdiction or governmental entity shall be in effect
against any of the Parties, and no proceedings therefor shall have been
threatened or commenced by any governmental entity, which prohibits or
restricts the consummation of the Merger.
ARTICLE IX
CLOSING
SECTION 9.01 Time and Place. Subject to the provisions of Articles VI,
--------------
VII, VIII and X, the closing of the Merger (the "Closing") shall take place at
the offices of Cahill Gordon & Reindel, as soon as practicable but in no event
later than 9:30 A.M., local time, on the later of (x) the day of the Special
Meeting provided for in Section 2.10, if required by law, or (y) the day on
which the last of the conditions set forth in Articles VI, VII and VIII shall
have been satisfied or waived by the Party or Parties entitled to the benefit
of such conditions, or at such other place, at such other time or on such other
date as Parent and Company may mutually agree. The date on which the Closing
actually occurs is herein referred to as the "Closing Date."
SECTION 9.02 Filings at the Closing. Subject to the provisions of
----------------------
Articles VI, VII, VIII and X, the Parties shall cause to be executed and filed
at the Closing the Certificate of Merger and shall cause the Certificate of
Merger to be recorded in accordance with the applicable provisions of the DGCL
and shall
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take any and all other lawful actions and do any and all other lawful things
necessary to cause the Merger to become effective.
ARTICLE X
TERMINATION AND ABANDONMENT
SECTION 10.01 Termination. This Agreement may be terminated at any time
-----------
prior to the Effective Time, whether before or after approval by the
stockholders of Company:
(a) by mutual consent of the Boards of Directors of Parent and Company;
(b) by either Parent or Company if, without a breach of this Agreement by
such terminating party, the Merger shall not have been consummated on or before
December 31, 1995, which date may be extended by mutual written consent of the
Parties;
(c) by either Parent or Company, if any court of competent jurisdiction in
the United States or other governmental body in the United States shall have
issued an order (other than a temporary restraining order), decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting the
Offer or the Merger, and such order, decree, ruling or other action shall have
become final and nonappealable; provided that the Party seeking to terminate
this Agreement shall have used all commercially reasonable efforts to remove or
lift such order, decree or ruling; or
(d) by either Parent and Merger Sub or Company, if no Shares shall have
been purchased pursuant to the Offer on or before September 30, 1995.
(e) by either Parent and Merger Sub or Company, if the Offer is
terminated in accordance with its terms without the purchase of any Shares.
SECTION 10.02 Termination by Parent. This Agreement may be terminated
---------------------
and the transactions contemplated hereby abandoned by action of the Board of
Directors of Parent, at any time prior to the Effective Time, before or after
the approval by the stockholders of Company, if (a) Company shall have failed
to comply in any material respect with any of the covenants or agreements
contained in Articles I, II and V of this Agreement to be complied with or
performed by Company at or prior to such date of termination, (b) there exists
a breach or breaches of any representation or warranty of Company contained in
this Agreement such that the closing condition set forth in Section 7.01 would
not be satisfied as of the Closing Date; provided, however, that if
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such breach or breaches are capable of being cured prior to the Effective Time,
such breaches shall not have been cured by the earlier of December 31, 1995 or
20 days following delivery to Company of written notice of such breach or
breaches, (c) the Board of Directors of Company shall have exercised their
rights under Section 5.03(c) hereof, or (d) the Board of Directors of Company
shall, at the time of a bona fide offer concerning an Acquisition Transaction
made after the date of this Agreement, have exercised their rights under
Section 5.06 hereof to withdraw, modify or change their recommendation to
stockholders with respect to the Offer, the Merger and the other transactions
contemplated by this Agreement.
SECTION 10.03 Termination by Company. This Agreement may be terminated
----------------------
and the transactions contemplated hereby abandoned at any time prior to the
Effective Time, before or after the approval by the stockholders of Company, by
action of the Board of the Directors of Company, if (a) Parent or Merger Sub
shall have failed to comply in any material respect with any of their
respective covenants or agreements contained in Articles I, II and V of this
Agreement to be complied with or performed by Parent or Merger Sub at or prior
to such date of termination, (b) there exists a breach or breaches of any
representation or warranty of Parent or Merger Sub contained in this Agreement
such that the closing condition set forth in Section 8.01 would not be
satisfied as of the Closing Date; provided, however, that if such breach or
breaches are capable of being cured prior to the Effective Time, such breaches
shall not have been cured by the earlier of December 31, 1995 or 20 days
following delivery to Parent of written notice of such breach or breaches, or
(c) the Board of Directors of Company shall, at the time of a bona fide offer
concerning an Acquisition Transaction made after the date of this Agreement,
have exercised their rights under Section 5.06 hereof to withdraw, modify or
change their recommendation to stockholders with respect to the Offer, the
Merger and the other transactions contemplated by this Agreement.
SECTION 10.04 Procedure for Termination. In the event of termination of
-------------------------
this Agreement and abandonment of the transactions contemplated hereby by
Parent or Company pursuant to this Article X, written notice thereof shall
forthwith be given to the other.
SECTION 10.05 Effect of Termination and Abandonment. (a) In the event of
-------------------------------------
termination of this Agreement and abandonment of the transactions contemplated
hereby pursuant to this Article X, no Party (or any of its respective directors
or officers) shall have any liability or further obligation to any other Party
to this Agreement, except as provided in this Section 10.05 and Section 5.04(b)
hereof and provided that nothing herein shall relieve any party from liability
for any breach of this Agreement.
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(b) If this Agreement is terminated pursuant to this Article X (other
than pursuant to Section 10.03(a) or (b)) and after the date hereof and prior
to such termination a third party shall have made a bona fide offer concerning
an Acquisition Transaction that would yield a higher value to Company's
stockholders than the Offer and Merger, Company shall within two business days
pay Parent by wire transfer of immediately available funds to an account
specified by Parent up to $4 million to reimburse Parent for its documented
fees and expenses directly related to this Agreement and the transactions
contemplated hereby. If this Agreement is terminated by Parent pursuant to
Section 10.02(d) or by Company pursuant to 10.03(c), Company shall within two
business days pay to Parent by wire transfer of immediately available funds to
an account specified by Parent an additional fee of $6 million. If such
additional fee has not already become payable and within twelve months after
the date hereof Company enters into a definitive agreement for an Acquisition
Transaction or an Acquisition Transaction is effected, and if after the date of
this Agreement and prior to its termination pursuant to this Article X, a third
party shall have proposed an Acquisition Transaction to the Company or its
stockholders that would yield a higher value to Company's stockholders than the
Offer and the Merger, then Company, concurrently with and as a condition to
entering into any definitive agreement for an Acquisition Transaction or any
Acquisition Transaction being effected within twelve months after the date
hereof, shall pay Parent by wire transfer of immediately available funds to an
account specified by Parent, an additional fee of $6 million; provided that no
such additional fee shall be payable in the event this Agreement shall have
been terminated pursuant to Section 10.03(a) or 10.03(b).
(c) So long as Company is not in breach or default under any covenant,
condition, representation or warranty herein, in the event of a termination of
this Agreement by Company pursuant to Section 10.03 (a) or (b), then Parent
shall promptly pay Company by wire transfer of immediately available funds to
an account specified by Company up to $4 million to reimburse Company for all
documented fees and expenses incurred by Company (including the fees and
expenses of counsel, accountants, consultants and advisors) directly related to
this Agreement and the transactions contemplated hereby.
ARTICLE XI
DEFINITIONS
SECTION 11.01 Terms Defined in the Agreement. The following capitalized
------------------------------
terms used herein shall have the meanings ascribed in the indicated sections.
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Acquisition Transaction 5.03
Agreement Preamble
Antitrust Division 5.07
Applicable Environmental Standards 3.12
Balance Sheet 3.05
Certificate of Merger 2.02
Certificates 2.08
Closing 9.01
Closing Date 9.01
Company Preamble
Company Common Stock Recitals
Company Plans 3.02
Company Preferred Stock 3.02
Company Shares 3.02
Confidentiality Agreement 5.04
Constituent Corporations Preamble
DGCL 2.01
Disclosure Statement 1.02
Dissenting Shares 2.06
Effective Time 2.02
Employee Pension Benefit Plans 3.15
ERISA 3.15
ERISA Affiliates 3.15
Exchange Act 1.01
FTC 5.07
HSR Act 3.04
Interim Balance Sheet 3.05
Material Adverse Effect 3.01
Merger Recitals
Merger Consideration 2.06
Merger Sub Preamble
Minimum Condition 1.01
Offer Recitals
Offer Documents 1.01
person 12.10
Parent Preamble
Parties Preamble
Paying Agent 2.08
Pension Benefit Plans 3.15
Per Share Amount Recitals
Person 12.10
Proxy Statement 2.10
Schedule 14D-9 1.02
SEC 1.01
Securities Act 3.05
Shares Recitals
Significant Subsidiary 3.01
Special Meeting 2.10
subsidiary 12.10
Surviving Corporation 2.01
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Welfare Plans 3.15
ARTICLE XII
MISCELLANEOUS
SECTION 12.01 Amendment and Modification. Subject to applicable law,
--------------------------
this Agreement may be amended, modified or supplemented only by written
agreement of the Parties at any time prior to the Effective Time with respect
to any of the terms contained herein; provided, however, that, after this
Agreement is adopted by the stockholders of Company, no such amendment or
modification shall reduce the amount or change the form of the Merger
Consideration or in any way adversely affect the rights of the holders of
Company Common Stock without the further approval of such holders; and,
provided, further, that from and after the date that Parent's designees to the
Board of Directors of Company constitute a majority of the Board of Directors
of Company and prior to consummation of the Merger, any amendment or
modification of this Agreement and any material deviation in the performance of
this Agreement shall require the approval of a majority of the members of the
Board of Directors, if any, who are not designees or affiliates of Parent.
SECTION 12.02 Waiver of Compliance; Consents. Any failure of Parent and
------------------------------
Merger Sub or Company to comply with any obligation, covenant, agreement or
condition herein may be waived only by a written instrument signed by the Party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent shall be given in writing in a manner
consistent with the requirements for a waiver of compliance as set forth in
this Section 12.02.
SECTION 12.03 Survivability; Investigations. The respective
-----------------------------
representations and warranties of the Parties contained herein or in any
certificates or other documents delivered prior to or at the Closing shall not
be deemed waived or otherwise affected by any investigation made by any party
hereto and shall not survive the Closing. This Section 12.03 shall have no
effect upon any other obligation of any of the Parties hereto, whether to be
performed before or after the Closing Date.
SECTION 12.04 Reasonable Efforts. Subject to the terms and conditions
------------------
herein provided, and applicable law, the Parties each agree to use all
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper and advisable under
applicable laws and
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regulations to consummate and make effective the transactions contemplated by
this Agreement.
SECTION 12.05 Notices. All notices and other communications hereunder
-------
shall be in writing and shall be delivered personally, by next-day courier or
mailed by registered or certified mail (return receipt requested), first class
postage prepaid, or telecopied with confirmation of receipt, to the Parties at
the addresses specified below (or at such other address for a Party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof). Any such notice shall be effective upon
receipt, if personally delivered or telecopied, one day after delivery to a
courier for next-day delivery, or three days after mailing, if deposited in the
U.S mail, first class postage prepaid.
(a) if to Company, to
Best Power Technology, Incorporated
P.O. Box 280
Route 80
Necedah, Wisconsin 54646-9899
Telecopy: (608) 565-3483
Attention: Dennis E. Burke,
Executive Vice President
with a copy to:
Michael Best & Friedrich
135 South LaSalle Street
Suite 1610
Chicago, Illinois 60603
Telecopy: (312) 845-5828
Attention: Thomas C. Judge, Esq.
(b) if to Parent or Merger Sub, to
General Signal Corporation
One High Ridge Park
P.O. Box 10010
Stamford, Connecticut 06904
Telecopy: (203) 329-4314
Attention: Edgar J. Smith, Jr., Esq.,
General Counsel
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<PAGE>
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telecopy: (212) 269-5420
Attention: W. Leslie Duffy, Esq.
SECTION 12.06 Assignment. This Agreement and all of the provisions
----------
hereof shall be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the Parties without the prior written consent of the other Parties, nor is this
Agreement intended to confer any rights or remedies hereunder upon any other
person except the parties hereto and, with respect to Section 5.10, the
officers, directors and employees of Company.
SECTION 12.07 Governing Law. Except as the laws of the State of Delaware
-------------
are by their terms applicable, this Agreement shall be governed by the laws of
the State of New York (regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law) as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies.
SECTION 12.08 Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 12.09 Severability. In case any one or more of the provisions
------------
contained in this Agreement should be invalid, illegal or unenforceable in any
respect against a Party, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby and such invalidity, illegality or unenforceability shall only
apply as to such Party in the specific jurisdiction where such judgment shall
be made.
SECTION 12.10 Interpretation. The article and section headings contained
--------------
in this Agreement are solely for the purpose of reference, are not part of the
agreement of the Parties and shall not in any way affect the meaning or
interpretation of this Agreement. This Agreement has been negotiated by the
Parties and is their mutual product; accordingly, no rule of strict
construction against Company shall be applied in the interpretation of this
Agreement. As used in this Agreement, (i) the term "person" shall mean and
include an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust,
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an unincorporated organization and a government or any department or agency
thereof; and (ii) the term "subsidiary" of any specified corporation shall mean
any corporation of which a majority of the outstanding securities having
ordinary voting power to elect a majority of the board of directors are,
directly or indirectly, owned by such specified corporation or any other person
of which a majority of the equity interests therein are directly or indirectly,
owned by such specified corporation.
SECTION 12.11 Guarantee. Parent hereby guarantees the due and punctual
---------
performance by Merger Sub of all of Merger Sub's obligations in connection with
the Merger and the other matters contemplated by this Agreement.
SECTION 12.12 Entire Agreement. This Agreement, including the schedules
----------------
and exhibits hereto and the documents and instruments referred to herein and
therein, embodies the entire agreement and understanding of the parties hereto
in respect of the subject matter contained herein and supersedes all prior
agreements and the understandings between the parties with respect to such
subject matter, except for the Confidentiality Agreement, which shall remain in
full force and effect. There are no representations, promises, warranties,
covenants, or undertakings, other than those expressly set forth or referred to
herein and therein.
IN WITNESS WHEREOF, PARENT, MERGER SUB and COMPANY have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
GENERAL SIGNAL CORPORATION
By: /s/ Philip A. Goodrich
--------------------------
Philip A. Goodrich
Vice President-Corporate Development
G.S. NEWCO, INC.
By: /s/ Edgar J. Smith, Jr.
----------------------------
Edgar J. Smith, Jr.
Vice President
BEST POWER TECHNOLOGY, INCORPORATED
By: /s/ Paul F. Koeppe
--------------------------
Paul F. Koeppe
Chairman, Executive Committee
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ANNEX A
to Agreement
and Plan of
Merger
CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer and in addition to (and
not in limitation of) Merger Sub's rights to extend and amend the Offer at any
time in its sole discretion, and in addition to the Minimum Condition, Merger
Sub shall not be required to accept for payment or pay for any tendered shares
of Company Common Stock, and may postpone the acceptance for payment of or
payment for tendered shares of Company Common Stock and may terminate or amend
the Offer if, at or before the acceptance of such shares of Company Common
Stock for payment or the payment therefor pursuant to the Offer, any material
litigation with respect to the Offer or the Merger shall not have been finally
settled, dismissed or withdrawn, or any of the following shall occur and be
continuing:
(a) there shall be any pending action or proceeding, or any statute,
rule, regulation, legislation, interpretation, judgment, order or
injunction shall be proposed, sought, enacted, promulgated, entered,
enforced, amended or made applicable to Merger Sub or any of its
affiliates or to the Offer or the Merger by or before any domestic or
foreign government or governmental, regulatory or administrative authority
or agency or by or before any court or tribunal, domestic or foreign (i)
challenging the acquisition by Merger Sub or any affiliate of Merger Sub,
in whole or in part, of the shares of Company Common Stock, seeking,
directly or indirectly, to restrain, delay, prohibit or make more costly
the making or consummation of the Offer or the Merger or seeking to obtain
any damages or otherwise, directly or indirectly, relating to the
transactions contemplated by the Offer or the Merger, (ii) seeking to
prohibit, restrict or limit the ownership or operation by Merger Sub or
any of its affiliates of all or any portion of its or Company's business
or assets, or to compel Merger Sub or any of its affiliates to dispose of
or hold separate all or any portion of its or Company's business or assets
as a result of the Offer or the Merger, (iii) making the purchase of, or
payment for, some or all of the shares of Company Common Stock illegal,
(iv) resulting in a material delay in the ability of Merger Sub to accept
for payment or pay for some or all of the shares of Company Common Stock,
(v) seeking to impose limitations on the ability of Merger Sub or any of
its affiliates effectively to acquire, hold or exercise rights of
ownership of any shares of Company Common Stock now owned or hereafter
purchased or to be purchased, including, without limitation, the right to
vote, or act by consent with respect to, such shares of Company Common
Stock on any matter properly presented to the shareholders of Company,
(vi) imposing any limitations on the
A-1
<PAGE>
ability of Merger Sub or any of its affiliates effectively to control in
any material respect the business and operations of Company, (vii) seeking
or causing any material diminution in the benefits expected to be derived
by Merger Sub or any of its affiliates as a result of the Offer or the
Merger, or (viii) which otherwise would materially and adversely affect
Company and its subsidiaries taken as a whole;
(b) any change (or any development involving a prospective change)
shall have occurred or be threatened in connection with the business,
assets, liabilities, capitalization, shareholders' equity, financial
condition, licenses, franchises, results of operations or prospects of
Company or any of its subsidiaries which would be materially adverse to
Company and its subsidiaries taken as a whole, or Merger Sub shall have
become aware of any fact that would have material adverse significance
with respect to Company and its subsidiaries taken as a whole;
(c) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities
exchange, or on NASDAQ or otherwise in the over-the-counter market, (ii)
the declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States, (iii) the commencement of a war,
armed hostilities or other international or national calamity directly or
indirectly involving the United States, (iv) any material limitation
(whether or not mandatory) by any governmental authority or agency, or any
other event which would significantly affect the extension of credit by
banks or other lending institutions in the United States, (v) an aggregate
decline since May 9, 1995 of 15% or more in the Standard & Poor's 500
Index, (vi) any imposition of currency controls in the United States or a
material change in exchange rates or a suspension of, or material
limitation on, the markets therefor, or (vii) in the case of any of the
foregoing existing at the time of commencement of the Offer, any material
worsening or acceleration thereof;
(d) Merger Sub or any of its affiliates shall have reached an
agreement or understanding with Company providing for amendment or
termination of the Offer;
(e) it shall have been publicly disclosed after the date of the
Agreement or Merger Sub shall have learned that (i) any person (including
Company or any of its subsidiaries or affiliates), entity or "group" (as
defined in Section 13(d)(3) of the Exchange Act) shall have acquired or
proposed to acquire more than 15% of any class or series of capital stock
of Company (including the Shares) or its subsidiaries or shall have been
granted any option or right to acquire more than 15% of any class or
series of capital stock of Company (including the Shares) or its
subsidiaries, other than acquisitions of Shares for bona fide arbitrage
positions, or (ii) any such person, entity or group which has publicly
disclosed any such ownership of or right to acquire more than 15% of any
class or
A-2
<PAGE>
series of capital stock of Company (including the Shares) or its
subsidiaries prior to May 1, 1995 shall after the date of the Agreement
have acquired or proposed to acquire additional shares of any class or
series of capital stock of Company (including the Shares) or its
subsidiaries constituting more than 1% of such class or series or shall
have been granted any option or right to acquire more than 1% of such
class or series of capital stock of Company (including the Shares) or its
subsidiaries or (iii) any group shall have been formed which beneficially
owns more than 15% of any class or series of capital stock of Company
(including the Shares) or its subsidiaries;
(f) Company shall have failed to comply in any material respect with
its obligations and covenants contained in the Agreement, or the
representations and warranties (without regard to any references to
materiality or Material Adverse Effect contained in any such
representations or warranties) made by Company in the Agreement shall have
failed to be true and correct on the date of the Merger Agreement and of
the expiration of the Offer as though such representations and warranties
had been made at and on such dates, except for such failures which,
individually or in the aggregate, would not have a Material Adverse Effect
and which, individually or in the aggregate, would not materially
adversely affect the rights of Parent and Merger Sub to consummate the
transactions contemplated by the Merger Agreement; or
(g) The Merger Agreement shall be terminated in accordance with its
terms.
The foregoing conditions are for the sole benefit of Merger Sub and may be
asserted by Merger Sub or any of its affiliates or may be waived in whole or in
part at any time or from time to time in its sole discretion. The failure to
exercise any of the foregoing rights shall not be deemed a waiver of any right,
and each right shall be deemed a continuing right which may be asserted at any
time and from time to time for so long as such right exists.
A-3
Exhibit (c)(2)
May 10, 1995
General Signal Corporation
G.S. Newco Inc.
Stamford, CT
Gentlemen:
This letter is being delivered to you in connection
with, and to induce you to enter into, the Agreement and Plan
of Merger by and among General Signal Corporation ("Parent"),
G.S. Newco Inc. ("Merger Sub") and Best Power Technology,
Incorporated dated as of May 10, 1995 (the "Merger Agreement"),
a copy of which is attached hereto as Annex 1.
You and the undersigned prior to the delivery hereof
had no agreement, arrangement or understanding to acquire the
Shares (as defined hereinafter) or for the purpose of
acquiring, holding, voting or disposing of the Shares. Prior
to the delivery hereof, the Board of Directors of Best Power
Technology, Incorporated, a Delaware corporation ("the
Company"), has approved you and the undersigned entering into
this letter agreement and the transactions contemplated by this
letter agreement, as well as the execution and delivery by the
Company of the Merger Agreement providing for the merger of the
Company with a direct wholly-owned subsidiary of yours (the
"Merger") and the offer to purchase all outstanding shares of
common stock, par value $.01 per share (the "Company Common
Stock"), of the Company (the "Offer").
The undersigned hereby represents and warrants to,
and covenants and agrees with, Parent as follows:
a. Your and the undersigned's obligations hereunder
shall be subject to the condition that the Merger, the Offer
and this letter agreement shall have been approved by the Board
of Directors of the Company with the effect that Parent will
not be subject to the restrictions of Section 203 of the
Delaware General Corporation Law.
b. The undersigned is the beneficial and/or record
holder of 1,500 shares of Company Common Stock (the "Shares")
and/or has the right to acquire 5,000 shares of Company
<PAGE>
-2-
Common Stock, free and clear of all liens and security interests
whatsoever.
c. The undersigned will tender all of the Shares to
Merger Sub pursuant to the Offer, as the Offer may be amended
by its terms or in accordance with the Merger Agreement. Such
tender shall be made promptly after (but in no event later than
May 26, 1995) the undersigned has received the Offer in the
form of an Offer to Purchase. The undersigned further agrees
not to withdraw such tendered Shares, unless the Offer is
extended beyond December 31, 1995 or unless the Merger
Agreement is terminated.
d. The undersigned will not, except pursuant to the
Offer, assign, sell, transfer or otherwise dispose of,
including by way of pledge, hypothecation or grant of any
security interest, any of the Shares, or enter into any direct
or indirect agreement or arrangement to effect any of the
foregoing, on or before December 31, 1995 or, if earlier, the
termination of the Merger Agreement or the termination of the
Offer in accordance with their respective terms, provided,
however, the undersigned may transfer Shares to a trust created
by the undersigned provided the trustee of the trust agrees to
be bound by this letter agreement to the same extent as the
undersigned.
e. Subject to paragraph (f) below, the undersigned
agrees that, prior to the earlier of the Effective Time (as
defined in the Merger Agreement), the termination of the Merger
Agreement in accordance with its terms and December 31, 1995,
the undersigned shall not, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing
information) inquiries or proposals concerning any Acquisition
Transaction (as defined in the Merger Agreement) or negotiate,
explore or otherwise communicate with any third party (other
than Parent or its affiliates) regarding any Acquisition
Transaction.
f. Parent and Merger Sub each acknowledge that the
undersigned has entered into this letter agreement solely in
his/her capacity as a stockholder of the Company and that by
entering into this letter agreement the undersigned has not
limited in any way his/her ability to discharge or perform
his/her fiduciary duty, to the extent applicable, as a director
of the Company and subject to the terms and conditions of the
Merger Agreement.
<PAGE>
-3-
g. If Parent, Merger Sub or any subsidiary of
Parent purchases the Shares pursuant to the Offer and does not
acquire a majority of the outstanding shares of Company Common
Stock pursuant to the Offer, Parent will pay promptly to the
undersigned in immediately available funds, in the event that
it, directly or indirectly, disposes of the Shares within
12 months of the date of this letter agreement, any amount
realized on such disposition of the Shares in excess of the
amount previously paid to the undersigned pursuant to the
Offer.
This letter agreement shall be governed by the laws
of the State of Delaware applicable to contracts made and
performed wholly in such state.
Very truly yours,
/s/ Roland D. Pampel
Agreed to:
GENERAL SIGNAL CORPORATION
By:/s/Philip A. Goodrich
----------------------------------
Name: Philip A. Goodrich
Title: Vice President
- Corporate Development
G.S. NEWCO INC.
By:/s/Edgar J. Smith, Jr.
----------------------------------
Name: Edgar J. Smith, Jr.
Title: Vice President, Secretary
Approved:
BEST POWER TECHNOLOGY, INCORPORATED
By:/s/Dennis E. Burke
----------------------------------
Name: Dennis E. Burke
Title: Executive Vice President
- Administration and Corporate Secretary
Exhibit (c)(3)
May 10, 1995
General Signal Corporation
G.S. Newco Inc.
Stamford, CT
Gentlemen:
This letter is being delivered to you in connection
with, and to induce you to enter into, the Agreement and Plan
of Merger by and among General Signal Corporation ("Parent"),
G.S. Newco Inc. ("Merger Sub") and Best Power Technology,
Incorporated dated as of May 10, 1995 (the "Merger Agreement"),
a copy of which is attached hereto as Annex 1.
You and the undersigned prior to the delivery hereof
had no agreement, arrangement or understanding to acquire the
Shares (as defined hereinafter) or for the purpose of
acquiring, holding, voting or disposing of the Shares. Prior
to the delivery hereof, the Board of Directors of Best Power
Technology, Incorporated, a Delaware corporation ("the
Company"), has approved you and the undersigned entering into
this letter agreement and the transactions contemplated by this
letter agreement, as well as the execution and delivery by the
Company of the Merger Agreement providing for the merger of the
Company with a direct wholly-owned subsidiary of yours (the
"Merger") and the offer to purchase all outstanding shares of
common stock, par value $.01 per share (the "Company Common
Stock"), of the Company (the "Offer").
The undersigned hereby represents and warrants to,
and covenants and agrees with, Parent as follows:
a. Your and the undersigned's obligations hereunder
shall be subject to the condition that the Merger, the Offer
and this letter agreement shall have been approved by the Board
of Directors of the Company with the effect that Parent will
not be subject to the restrictions of Section 203 of the
Delaware General Corporation Law.
b. The undersigned is the beneficial and/or record
holder of 854,260 shares of Company Common Stock (the "Shares")
and/or has the right to acquire no shares
<PAGE>
-2-
of Company Common Stock, free and clear of all liens and security
interests whatsoever.
c. The undersigned will tender all of the Shares to
Merger Sub pursuant to the Offer, as the Offer may be amended
by its terms or in accordance with the Merger Agreement. Such
tender shall be made promptly after (but in no event later than
May 26, 1995) the undersigned has received the Offer in the
form of an Offer to Purchase. The undersigned further agrees
not to withdraw such tendered Shares, unless the Offer is
extended beyond December 31, 1995 or unless the Merger
Agreement is terminated.
d. The undersigned will not, except pursuant to the
Offer, assign, sell, transfer or otherwise dispose of,
including by way of pledge, hypothecation or grant of any
security interest, any of the Shares, or enter into any direct
or indirect agreement or arrangement to effect any of the
foregoing, on or before December 31, 1995 or, if earlier, the
termination of the Merger Agreement or the termination of the
Offer in accordance with their respective terms, provided,
however, the undersigned may transfer Shares to a trust created
by the undersigned provided the trustee of the trust agrees to
be bound by this letter agreement to the same extent as the
undersigned.
e. Subject to paragraph (f) below, the undersigned
agrees that, prior to the earlier of the Effective Time (as
defined in the Merger Agreement), the termination of the Merger
Agreement in accordance with its terms and December 31, 1995,
the undersigned shall not, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing
information) inquiries or proposals concerning any Acquisition
Transaction (as defined in the Merger Agreement) or negotiate,
explore or otherwise communicate with any third party (other
than Parent or its affiliates) regarding any Acquisition
Transaction.
f. Parent and Merger Sub each acknowledge that the
undersigned has entered into this letter agreement solely in
his/her capacity as a stockholder of the Company and that by
entering into this letter agreement the undersigned has not
limited in any way his/her ability to discharge or perform
his/her fiduciary duty, to the extent applicable, as a director
of the Company and subject to the terms and conditions of the
Merger Agreement.
<PAGE>
-3-
g. If Parent, Merger Sub or any subsidiary of
Parent purchases the Shares pursuant to the Offer and does not
acquire a majority of the outstanding shares of Company Common
Stock pursuant to the Offer, Parent will pay promptly to the
undersigned in immediately available funds, in the event that
it, directly or indirectly, disposes of the Shares within
12 months of the date of this letter agreement, any amount
realized on such disposition of the Shares in excess of the
amount previously paid to the undersigned pursuant to the
Offer.
This letter agreement shall be governed by the laws
of the State of Delaware applicable to contracts made and
performed wholly in such state.
Very truly yours,
/s/ Marguerite M. Paul
Agreed to:
GENERAL SIGNAL CORPORATION
By:/s/Philip A. Goodrich
----------------------------------
Name: Philip A. Goodrich
Title: Vice President
- Corporate Development
G.S. NEWCO INC.
By:/s/Edgar J. Smith, Jr.
----------------------------------
Name: Edgar J. Smith, Jr.
Title: Vice President, Secretary
Approved:
BEST POWER TECHNOLOGY, INCORPORATED
By:/s/Dennis E. Burke
----------------------------------
Name: Dennis E. Burke
Title: Executive Vice President
- Administration and Corporate Secretary
Exhibit (c)(4)
May 10, 1995
General Signal Corporation
G.S. Newco Inc.
Stamford, CT
Gentlemen:
This letter is being delivered to you in connection
with, and to induce you to enter into, the Agreement and Plan
of Merger by and among General Signal Corporation ("Parent"),
G.S. Newco Inc. ("Merger Sub") and Best Power Technology,
Incorporated dated as of May 10, 1995 (the "Merger Agreement"),
a copy of which is attached hereto as Annex 1.
You and the undersigned prior to the delivery hereof
had no agreement, arrangement or understanding to acquire the
Shares (as defined hereinafter) or for the purpose of
acquiring, holding, voting or disposing of the Shares. Prior
to the delivery hereof, the Board of Directors of Best Power
Technology, Incorporated, a Delaware corporation ("the
Company"), has approved you and the undersigned entering into
this letter agreement and the transactions contemplated by this
letter agreement, as well as the execution and delivery by the
Company of the Merger Agreement providing for the merger of the
Company with a direct wholly-owned subsidiary of yours (the
"Merger") and the offer to purchase all outstanding shares of
common stock, par value $.01 per share (the "Company Common
Stock"), of the Company (the "Offer").
The undersigned hereby represents and warrants to,
and covenants and agrees with, Parent as follows:
a. Your and the undersigned's obligations hereunder
shall be subject to the condition that the Merger, the Offer
and this letter agreement shall have been approved by the Board
of Directors of the Company with the effect that Parent will
not be subject to the restrictions of Section 203 of the
Delaware General Corporation Law.
b. The undersigned is the beneficial and/or record
holder of 1,160,056 shares of Company Common
<PAGE>
-2-
Stock (the "Shares") and/or has the right to acquire no shares of Company
Common Stock, free and clear of all liens and security interests
whatsoever.
c. The undersigned will tender all of the Shares to
Merger Sub pursuant to the Offer, as the Offer may be amended
by its terms or in accordance with the Merger Agreement. Such
tender shall be made promptly after (but in no event later than
May 26, 1995) the undersigned has received the Offer in the
form of an Offer to Purchase. The undersigned further agrees
not to withdraw such tendered Shares, unless the Offer is
extended beyond December 31, 1995 or unless the Merger
Agreement is terminated.
d. The undersigned will not, except pursuant to the
Offer, assign, sell, transfer or otherwise dispose of,
including by way of pledge, hypothecation or grant of any
security interest, any of the Shares, or enter into any direct
or indirect agreement or arrangement to effect any of the
foregoing, on or before December 31, 1995 or, if earlier, the
termination of the Merger Agreement or the termination of the
Offer in accordance with their respective terms, provided,
however, the undersigned may transfer Shares to a trust created
by the undersigned provided the trustee of the trust agrees to
be bound by this letter agreement to the same extent as the
undersigned.
e. Subject to paragraph (f) below, the undersigned
agrees that, prior to the earlier of the Effective Time (as
defined in the Merger Agreement), the termination of the Merger
Agreement in accordance with its terms and December 31, 1995,
the undersigned shall not, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing
information) inquiries or proposals concerning any Acquisition
Transaction (as defined in the Merger Agreement) or negotiate,
explore or otherwise communicate with any third party (other
than Parent or its affiliates) regarding any Acquisition
Transaction.
f. Parent and Merger Sub each acknowledge that the
undersigned has entered into this letter agreement solely in
his/her capacity as a stockholder of the Company and that by
entering into this letter agreement the undersigned has not
limited in any way his/her ability to discharge or perform
his/her fiduciary duty, to the extent applicable, as a director
of the Company and subject to the terms and conditions of the
Merger Agreement.
<PAGE>
-3-
g. If Parent, Merger Sub or any subsidiary of
Parent purchases the Shares pursuant to the Offer and does not
acquire a majority of the outstanding shares of Company Common
Stock pursuant to the Offer, Parent will pay promptly to the
undersigned in immediately available funds, in the event that
it, directly or indirectly, disposes of the Shares within
12 months of the date of this letter agreement, any amount
realized on such disposition of the Shares in excess of the
amount previously paid to the undersigned pursuant to the
Offer.
This letter agreement shall be governed by the laws
of the State of Delaware applicable to contracts made and
performed wholly in such state.
Very truly yours,
/s/ Steve J. Paul
Agreed to:
GENERAL SIGNAL CORPORATION
By:/s/Philip A. Goodrich
----------------------------------
Name: Philip A. Goodrich
Title: Vice President
- Corporate Development
G.S. NEWCO INC.
By:/s/Edgar J. Smith, Jr.
----------------------------------
Name: Edgar J. Smith, Jr.
Title: Vice President, Secretary
Approved:
BEST POWER TECHNOLOGY, INCORPORATED
By:/s/Dennis E. Burke
----------------------------------
Name: Dennis E. Burke
Title: Executive Vice President
- Administration and Corporate Secretary
Exhibit (c)(5)
May 10, 1995
General Signal Corporation
G.S. Newco Inc.
Stamford, CT
Gentlemen:
This letter is being delivered to you in connection
with, and to induce you to enter into, the Agreement and Plan
of Merger by and among General Signal Corporation ("Parent"),
G.S. Newco Inc. ("Merger Sub") and Best Power Technology,
Incorporated dated as of May 10, 1995 (the "Merger Agreement"),
a copy of which is attached hereto as Annex 1.
You and the undersigned prior to the delivery hereof
had no agreement, arrangement or understanding to acquire the
Shares (as defined hereinafter) or for the purpose of
acquiring, holding, voting or disposing of the Shares. Prior
to the delivery hereof, the Board of Directors of Best Power
Technology, Incorporated, a Delaware corporation ("the
Company"), has approved you and the undersigned entering into
this letter agreement and the transactions contemplated by this
letter agreement, as well as the execution and delivery by the
Company of the Merger Agreement providing for the merger of the
Company with a direct wholly-owned subsidiary of yours (the
"Merger") and the offer to purchase all outstanding shares of
common stock, par value $.01 per share (the "Company Common
Stock"), of the Company (the "Offer").
The undersigned hereby represents and warrants to,
and covenants and agrees with, Parent as follows:
a. Your and the undersigned's obligations hereunder
shall be subject to the condition that the Merger, the Offer
and this letter agreement shall have been approved by the Board
of Directors of the Company with the effect that Parent will
not be subject to the restrictions of Section 203 of the
Delaware General Corporation Law.
b. The undersigned is the beneficial and/or record
holder of 950 shares of Company Common Stock (the "Shares")
and/or has the right to acquire 14,941 shares of Company Common
<PAGE>
-2-
Stock, free and clear of all liens and security interests
whatsoever.
c. The undersigned will not, except pursuant to the
Offer, Merger or the exercise of dissenters' rights with
respect to the Merger, assign, sell, transfer or otherwise
dispose of, including by way of pledge, hypothecation or grant
of any security interest, any of the Shares, or enter into any
direct or indirect agreement or arrangement to effect any of
the foregoing, on or before December 31, 1995 or, if earlier,
the termination of the Merger Agreement or the termination of
the Offer in accordance with their respective terms, provided,
however, the undersigned may transfer Shares to a trust created
by the undersigned provided the trustee of the trust agrees to
be bound by this letter agreement to the same extent as the
undersigned.
d. Subject to paragraph (e) below, the undersigned
agrees that, prior to the earlier of the Effective Time (as
defined in the Merger Agreement), the termination of the Merger
Agreement in accordance with its terms and December 31, 1995,
the undersigned shall not, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing
information) inquiries or proposals concerning any Acquisition
Transaction (as defined in the Merger Agreement) or negotiate,
explore or otherwise communicate with any third party (other
than Parent or its affiliates) regarding any Acquisition
Transaction.
e. Parent and Merger Sub each acknowledge that the
undersigned has entered into this letter agreement solely in
his/her capacity as a stockholder of the Company and that by
entering into this letter agreement the undersigned has not
limited in any way his/her ability to discharge or perform
his/her fiduciary duty, to the extent applicable, as a director
of the Company and subject to the terms and conditions of the
Merger Agreement.
f. If Parent, Merger Sub or any subsidiary of
Parent purchases the Shares pursuant to the Offer and does not
acquire a majority of the outstanding shares of Company Common
Stock pursuant to the Offer, Parent will pay promptly to the
undersigned in immediately available funds, in the event that
it, directly or indirectly, disposes of the Shares within
12 months of the date of this letter agreement, any amount
realized on such disposition of the Shares in excess of the
<PAGE>
-3-
amount previously paid to the undersigned pursuant to the
Offer.
This letter agreement shall be governed by the laws
of the State of Delaware applicable to contracts made and
performed wholly in such state.
Very truly yours,
/s/ Dennis E. Burke
Agreed to:
GENERAL SIGNAL CORPORATION
By:/s/Philip A. Goodrich
----------------------------------
Name: Philip A. Goodrich
Title: Vice President
- Corporate Development
G.S. NEWCO INC.
By:/s/Edgar J. Smith, Jr.
----------------------------------
Name: Edgar J. Smith, Jr.
Title: Vice President, Secretary
Approved:
BEST POWER TECHNOLOGY, INCORPORATED
By:/s/Dennis E. Burke
----------------------------------
Name: Dennis E. Burke
Title: Executive Vice President
- Administration and Corporate Secretary
Exhibit (c)(6)
May 10, 1995
General Signal Corporation
G.S. Newco Inc.
Stamford, CT
Gentlemen:
This letter is being delivered to you in connection
with, and to induce you to enter into, the Agreement and Plan
of Merger by and among General Signal Corporation ("Parent"),
G.S. Newco Inc. ("Merger Sub") and Best Power Technology,
Incorporated dated as of May 10, 1995 (the "Merger Agreement"),
a copy of which is attached hereto as Annex 1.
You and the undersigned prior to the delivery hereof
had no agreement, arrangement or understanding to acquire the
Shares (as defined hereinafter) or for the purpose of
acquiring, holding, voting or disposing of the Shares. Prior
to the delivery hereof, the Board of Directors of Best Power
Technology, Incorporated, a Delaware corporation ("the
Company"), has approved you and the undersigned entering into
this letter agreement and the transactions contemplated by this
letter agreement, as well as the execution and delivery by the
Company of the Merger Agreement providing for the merger of the
Company with a direct wholly-owned subsidiary of yours (the
"Merger") and the offer to purchase all outstanding shares of
common stock, par value $.01 per share (the "Company Common
Stock"), of the Company (the "Offer").
The undersigned hereby represents and warrants to,
and covenants and agrees with, Parent as follows:
a. Your and the undersigned's obligations hereunder
shall be subject to the condition that the Merger, the Offer
and this letter agreement shall have been approved by the Board
of Directors of the Company with the effect that Parent will
not be subject to the restrictions of Section 203 of the
Delaware General Corporation Law.
b. The undersigned is the beneficial and/or record
holder of 11,693 shares of Company Common Stock (the "Shares")
and/or has the right to acquire 11,436 shares of Company Common
<PAGE>
-2-
Stock, free and clear of all liens and security interests
whatsoever.
c. The undersigned will not, except pursuant to the
Offer, Merger or the exercise of dissenters' rights with
respect to the Merger, assign, sell, transfer or otherwise
dispose of, including by way of pledge, hypothecation or grant
of any security interest, any of the Shares, or enter into any
direct or indirect agreement or arrangement to effect any of
the foregoing, on or before December 31, 1995 or, if earlier,
the termination of the Merger Agreement or the termination of
the Offer in accordance with their respective terms, provided,
however, the undersigned may transfer Shares to a trust created
by the undersigned provided the trustee of the trust agrees to
be bound by this letter agreement to the same extent as the
undersigned.
d. Subject to paragraph (e) below, the undersigned
agrees that, prior to the earlier of the Effective Time (as
defined in the Merger Agreement), the termination of the Merger
Agreement in accordance with its terms and December 31, 1995,
the undersigned shall not, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing
information) inquiries or proposals concerning any Acquisition
Transaction (as defined in the Merger Agreement) or negotiate,
explore or otherwise communicate with any third party (other
than Parent or its affiliates) regarding any Acquisition
Transaction.
e. Parent and Merger Sub each acknowledge that the
undersigned has entered into this letter agreement solely in
his/her capacity as a stockholder of the Company and that by
entering into this letter agreement the undersigned has not
limited in any way his/her ability to discharge or perform
his/her fiduciary duty, to the extent applicable, as a director
of the Company and subject to the terms and conditions of the
Merger Agreement.
f. If Parent, Merger Sub or any subsidiary of
Parent purchases the Shares pursuant to the Offer and does not
acquire a majority of the outstanding shares of Company Common
Stock pursuant to the Offer, Parent will pay promptly to the
undersigned in immediately available funds, in the event that
it, directly or indirectly, disposes of the Shares within
12 months of the date of this letter agreement, any amount
realized on such disposition of the Shares in excess of the
<PAGE>
-3-
amount previously paid to the undersigned pursuant to the
Offer.
This letter agreement shall be governed by the laws
of the State of Delaware applicable to contracts made and
performed wholly in such state.
Very truly yours,
/s/ John R. Hickey
Agreed to:
GENERAL SIGNAL CORPORATION
By:/s/Philip A. Goodrich
----------------------------------
Name: Philip A. Goodrich
Title: Vice President
- Corporate Development
G.S. NEWCO INC.
By:/s/Edgar J. Smith, Jr.
----------------------------------
Name: Edgar J. Smith, Jr.
Title: Vice President, Secretary
Approved:
BEST POWER TECHNOLOGY, INCORPORATED
By:/s/Dennis E. Burke
----------------------------------
Name: Dennis E. Burke
Title: Executive Vice President
- Administration and Corporate Secretary
Exhibit (c)(7)
May 10, 1995
General Signal Corporation
G.S. Newco Inc.
Stamford, CT
Gentlemen:
This letter is being delivered to you in connection
with, and to induce you to enter into, the Agreement and Plan
of Merger by and among General Signal Corporation ("Parent"),
G.S. Newco Inc. ("Merger Sub") and Best Power Technology,
Incorporated dated as of May 10, 1995 (the "Merger Agreement"),
a copy of which is attached hereto as Annex 1.
You and the undersigned prior to the delivery hereof
had no agreement, arrangement or understanding to acquire the
Shares (as defined hereinafter) or for the purpose of
acquiring, holding, voting or disposing of the Shares. Prior
to the delivery hereof, the Board of Directors of Best Power
Technology, Incorporated, a Delaware corporation ("the
Company"), has approved you and the undersigned entering into
this letter agreement and the transactions contemplated by this
letter agreement, as well as the execution and delivery by the
Company of the Merger Agreement providing for the merger of the
Company with a direct wholly-owned subsidiary of yours (the
"Merger") and the offer to purchase all outstanding shares of
common stock, par value $.01 per share (the "Company Common
Stock"), of the Company (the "Offer").
The undersigned hereby represents and warrants to,
and covenants and agrees with, Parent as follows:
a. Your and the undersigned's obligations hereunder
shall be subject to the condition that the Merger, the Offer
and this letter agreement shall have been approved by the Board
of Directors of the Company with the effect that Parent will
not be subject to the restrictions of Section 203 of the
Delaware General Corporation Law.
b. The undersigned is the beneficial and/or record
holder of 10,133 shares of Company Common Stock (the "Shares")
and/or has the right to acquire 5,000 shares of Company Common
<PAGE>
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Stock, free and clear of all liens and security interests
whatsoever.
c. The undersigned will not, except pursuant to the
Offer, Merger or the exercise of dissenters' rights with
respect to the Merger, assign, sell, transfer or otherwise
dispose of, including by way of pledge, hypothecation or grant
of any security interest, any of the Shares, or enter into any
direct or indirect agreement or arrangement to effect any of
the foregoing, on or before December 31, 1995 or, if earlier,
the termination of the Merger Agreement or the termination of
the Offer in accordance with their respective terms, provided,
however, the undersigned may transfer Shares to a trust created
by the undersigned provided the trustee of the trust agrees to
be bound by this letter agreement to the same extent as the
undersigned.
d. Subject to paragraph (e) below, the undersigned
agrees that, prior to the earlier of the Effective Time (as
defined in the Merger Agreement), the termination of the Merger
Agreement in accordance with its terms and December 31, 1995,
the undersigned shall not, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing
information) inquiries or proposals concerning any Acquisition
Transaction (as defined in the Merger Agreement) or negotiate,
explore or otherwise communicate with any third party (other
than Parent or its affiliates) regarding any Acquisition
Transaction.
e. Parent and Merger Sub each acknowledge that the
undersigned has entered into this letter agreement solely in
his/her capacity as a stockholder of the Company and that by
entering into this letter agreement the undersigned has not
limited in any way his/her ability to discharge or perform
his/her fiduciary duty, to the extent applicable, as a director
of the Company and subject to the terms and conditions of the
Merger Agreement.
f. If Parent, Merger Sub or any subsidiary of
Parent purchases the Shares pursuant to the Offer and does not
acquire a majority of the outstanding shares of Company Common
Stock pursuant to the Offer, Parent will pay promptly to the
undersigned in immediately available funds, in the event that
it, directly or indirectly, disposes of the Shares within
12 months of the date of this letter agreement, any amount
realized on such disposition of the Shares in excess of the
<PAGE>
-3-
amount previously paid to the undersigned pursuant to the
Offer.
This letter agreement shall be governed by the laws
of the State of Delaware applicable to contracts made and
performed wholly in such state.
Very truly yours,
/s/ Paul F. Koeppe
Agreed to:
GENERAL SIGNAL CORPORATION
By:/s/Philip A. Goodrich
----------------------------------
Name: Philip A. Goodrich
Title: Vice President
- Corporate Development
G.S. NEWCO INC.
By:/s/Edgar J. Smith, Jr.
----------------------------------
Name: Edgar J. Smith, Jr.
Title: Vice President, Secretary
Approved:
BEST POWER TECHNOLOGY, INCORPORATED
By:Dennis E. Burke
----------------------------------
Name: Dennis E. Burke
Title: Executive Vice President
- Administration and Corporate Secretary
