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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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TECHFORCE CORPORATION
(Name of Subject Company)
TECHFORCE CORPORATION
(Name of Person(s) Filing Statement)
COMMON STOCK
PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
878331107
((CUSIP) Number of Class of Securities)
JOHN A. KOEHLER
CHIEF EXECUTIVE OFFICER
TECHFORCE CORPORATION
5741 RIO VISTA DRIVE
CLEARWATER, FLORIDA 33760
(727) 533-3600
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of the Person(s) Filing Statement)
WITH A COPY TO:
SCOTT M. HOBBY, ESQ.
W. TINLEY ANDERSON, III, ESQ.
HUNTON & WILLIAMS
600 PEACHTREE ST., SUITE 4100
ATLANTA, GEORGIA 30308
(404) 888-4000
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INTRODUCTION
This Solicitation/Recommendation Statement on Schedule 14D-9 (this
"Schedule 14D-9" or "Statement") pursuant to Section 14(d)(4) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), relates to a tender offer
by Equant Acquisition Corp. ("Purchaser"), a Delaware corporation and wholly
owned subsidiary of Equant Holdings U.S., Inc. ("Parent") and itself an indirect
wholly owned subsidiary of Equant N.V., a company organized under the laws of
The Netherlands ("Ultimate Parent"), to purchase all of the issued and
outstanding shares ("Shares") of common stock, par value $0.01 per share (the
"Common Stock"), of TechForce Corporation, a Georgia corporation (the
"Company"), at a price of $8.50 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Offer to Purchase dated July 7, 1999 and the related
Letter of Transmittal (the Offer to Purchase and the related Letter of
Transmittal, together with any amendments or supplements hereto or thereto,
collectively constitute the "Offer").
Tendering shareholders who have Shares registered in their own names and
who tender directly to the Depositary will not be obligated to pay brokerage
fees or commissions or, except as set forth in Instruction 7 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer. Shareholders who hold Shares through their bank or broker
should consult with them as to whether they charge any service fees. Parent or
Purchaser will pay all fees and expenses of American Stock Transfer & Trust
Company, as Depositary (the "Depositary"), Credit Suisse First Boston
Corporation, as Dealer Manager, and Georgeson Shareholder Communications Inc.,
as Information Agent (the "Information Agent"), incurred in connection with the
Offer. See "The Tender Offer -- 17. Fees and Expenses."
The Board of Directors of the Company (the "Board") has unanimously
determined that each of the Offer and the Merger (as defined herein) is fair to
and in the best interests of the shareholders of the Company, and recommends
that shareholders accept the Offer and tender their Shares pursuant to the
Offer. See "Special Factors -- 2. Recommendations of the Company Board; Fairness
of the Offer and the Merger."
Deutsche Bank Securities Inc., financial advisor to the Company ("Deutsche
Bank"), has delivered to the Board its written opinion, dated June 30, 1999,
that the consideration to be received by holders of the Company's Common Stock
pursuant to the Offer and the Merger (as defined herein) is fair to such
shareholders from a financial point of view as of the date of such opinion. The
full text of the written opinion of Deutsche Bank containing the assumptions
made, the matters considered and the scope of the review undertaken in rendering
such opinion, as well as the limitations of such opinion, is attached hereto as
Exhibit (a)(11). Shareholders are urged to read the full text of such opinion in
conjunction with the Offer.
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer at least that
number of Shares that, when added to any Shares then-owned by Parent, Purchaser
or any direct or indirect wholly owned subsidiary of Parent, shall constitute a
majority of the Shares then outstanding (the "Minimum Share Condition"). The
Minimum Share Condition may not be waived by Purchaser. The Offer is also
subject to the other terms and conditions described in the Offer to Purchase.
See "The Tender Offer -- 15. Certain Conditions of the Offer."
The Offer does not constitute a solicitation of proxies for any meeting of
the Company's shareholders. Any such solicitation would be made only pursuant to
separate proxy materials complying with the requirements of Section 14(a) of the
Exchange Act.
The Company has advised Purchaser that as of June 28, 1999, the authorized
capital stock of the Company consisted of 30,000,000 shares of Common Stock and
4,259,350 shares of preferred stock. As of the close of business on June 28,
1999, (a) 8,280,765 shares of Common Stock were issued and outstanding, (b) no
shares of preferred or other capital stock were issued and outstanding, and (c)
no Shares were held by the Company in its treasury. As of June 28, 1999, options
to acquire a total of 1,242,960 Shares were issued and outstanding under: the
Company's (a) 1994 Incentive Stock Option Plan (the "1994 Plan"), (b) 1995 Stock
Incentive Plan (the "1995 Plan"), (c) Stock Option Plan for the Board of
Directors (the "Director Plan"), and (d) Amended and Restated Employee Stock
Purchase Plan (the "ESPP") (collectively, the
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"Company Stock Option Plans") provided, that up to a maximum of 3,606 additional
Shares may be issued under the ESPP prior to the Merger.
Immediately prior to the Effective Time (as defined below), the Company
shall: (a) cause each outstanding but unvested option under the 1994 Plan to
become fully vested and exercisable, (b) cancel all outstanding options to
purchase shares (whether or not vested or exercisable) under the 1995 Plan, and
upon such cancellation each holder thereunder shall be entitled to receive from
the Company an amount of cash (less any applicable withholding taxes) equal to
the product of (i) the number of such holder's Shares subject to the 1995 Plan,
and (ii) the excess (if any) of the Merger Consideration over the exercise price
per Share under the 1995 Plan, (c) cancel all outstanding options to purchase
shares (whether or not vested or exercisable) under the Director Plan, and upon
such cancellation each holder thereunder shall be entitled to receive from the
Company an amount of cash (less any applicable withholding taxes) equal to the
product of (i) the number of such holder's Shares subject to the Director Plan,
and (ii) the excess (if any) of the Merger Consideration over the exercise price
per Share under the Director Plan, and (d) cancel the ESPP, and upon such
cancellation each holder thereunder shall be entitled to receive after the
Closing an amount in cash equal to the net amount which such participant would
have received if the total amount of payroll deductions accumulated in such
participant's account under the ESPP up to the date of the Closing had been used
to exercise the option to purchase Shares under the ESPP on the Closing date and
the Shares so purchased had been sold to the Company at the Offer Price.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of June 30, 1999, by and among Ultimate Parent, Parent, Purchaser and the
Company (the "Merger Agreement"). The Merger Agreement provides, among other
things, that as soon as practicable after the purchase of Shares pursuant to the
Offer and the satisfaction of the other conditions set forth in the Merger
Agreement and in accordance with the relevant provisions of the Georgia Business
Corporation Code (the "GBCC") and the Delaware General Corporation Law (the
"DGCL"), 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 and indirect wholly-owned subsidiary of Ultimate 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 owned by
Ultimate Parent, Parent, Purchaser, the Company or any direct or indirect wholly
owned subsidiary of Parent or the Company, or Shares held by shareholders who
will have properly demanded and perfected appraisal rights, if any, under the
GBCC) will be canceled and converted automatically into the right to receive in
cash, without interest thereon, an amount equal to the price paid per Share in
the Offer (the "Merger Price"). The Merger Agreement is more fully described
under "The Tender Offer -- 11. The Merger Agreement."
Under the GBCC, if, after consummation of the Offer, Purchaser owns at
least 90% of the Shares then outstanding, Ultimate Parent will be able to cause
the Merger to occur without a vote of the Company's stockholders. In such event,
Ultimate Parent, Parent, Purchaser and the Company have agreed to take all
necessary and appropriate action to cause the Merger to become effective in
accordance with the GBCC and the DGCL as promptly as practicable after
consummation of the Offer, without a meeting of the shareholders of the Company.
If, however, after consummation of the Offer, Ultimate Parent owns less than
such number of Shares, a vote of the Company's shareholders will be required
under the GBCC and DGCL to approve the Merger, and a significantly longer period
of time will be required to effect the Merger. See "The Tender Offer -- 11. The
Merger Agreement," "The Tender Offer -- 12. Purpose of the Offer; the Merger;
Plans for the Company," "The Tender Offer -- 15. Certain Conditions of the
Offer" and "The Tender Offer -- 16. Certain Legal Matters and Regulatory
Approvals." As of the date of the Offer to Purchase, Ultimate Parent, Parent and
Purchaser do not own any Shares.
In accordance with the GBCC, appraisal rights are available in connection
with the Offer for shareholders who have not voted in favor of the Merger or
consented in writing and who have demanded and perfected their right to
appraisal for such Shares. See "The Tender Offer -- 11. The Merger Agreement"
and "The Tender Offer -- 12. Purpose of the Offer; The Merger; Plans for the
Company."
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ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is TechForce Corporation, a corporation
organized under the laws of Georgia (the "Company"), which has its principal
executive offices at 5741 Rio Vista Drive, Clearwater, Florida 33760.
Capitalized terms used in this Schedule 14D-9 and not defined herein shall have
the meanings set forth in the Offer to Purchase dated July 7, 1999 (the "Offer
to Purchase") attached hereto as Exhibit (a)(1).
(b) The information set forth in the "Introduction" of the Offer to
Purchase is incorporated herein by reference.
(c) The information set forth in "The Tender Offer -- 6. Price Range of
Shares; Dividends" of the Offer to Purchase is incorporated herein by reference.
ITEM 2. TENDER OFFER OF THE BIDDER.
The information set forth in "Introduction," "The Tender Offer -- 1. Terms
of the Offer; Expiration Date," "The Tender Offer -- 8. Certain Information
Concerning the Purchaser, the Parent and the Ultimate Parent," "The Tender
Offer -- 12. Purpose of the Offer; the Merger; Plans for the Company" of the
Offer to Purchase is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND.
(a) The name and address of the Company, which is the person filing this
statement, are set forth in Item 1 above which information is incorporated
herein by reference.
(b) The information set forth in "Introduction" and "The Tender
Offer -- 1-18" of the Offer to Purchase is incorporated herein by reference.
Copies of such material agreements referenced therein may be examined and copies
may be obtained at the places and in the manner set forth in "The Tender
Offer -- 7. Certain Information Concerning the Company" of the Offer to
Purchase. Also, the Company's indemnification arrangements with its directors
and officers are described below.
The Company's Amended and Restated Articles of Incorporation provide that
directors of the Company will not be personally liable for monetary damages to
the Company or its shareholders for breaches of their fiduciary duty of care or
other duties as directors to the extent provided by Georgia law. The Company's
Bylaws and Indemnification Agreements with each director provide that the
Company will indemnify (i) directors who succeed in the defense of any
proceeding to which the director was a party; or (ii) directors who are made a
party to a proceeding because of their service for or on behalf of the Company
if the directors acted in good faith in or not against the Company's best
interest or if the directors had no reasonable cause to believe their conduct
was unlawful. Indemnification is not available to directors who are adjudged
liable to the Company, who receive improper benefits, who make an unlawful
distribution, or who appropriate a business opportunity of the Company. The
Company's Board of Directors has discretion to apply these provisions to
officers, employees and agents of the Company.
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
(a) The information set forth in the "Introduction" of the Offer to
Purchase is incorporated herein by reference.
(b) Recommendation of the Board of Directors
The Board of Directors of the Company has unanimously approved the Offer
and the Merger and determined that the terms of the Offer and the Merger are
fair to, and in the best interests of, the shareholders of the Company, and
unanimously recommends that shareholders of the Company accept the Offer, tender
their Shares and vote in favor of the Merger (if necessary). A copy of a letter
to all shareholders of the Company communicating the recommendation of the Board
is attached as Exhibit (a)(2) hereto.
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As set forth in the Offer, the Purchaser will purchase Shares tendered
prior to the close of the Offer if the conditions of the Offer have been
satisfied. Shareholders considering not tendering their Shares in order to wait
for the Merger should note that if the Minimum Condition is not satisfied or any
of the other conditions to the Offer are not satisfied, the Purchaser is not
obligated to purchase any Shares, and can terminate the Offer and the Merger
Agreement and not proceed with the Merger. Under the GBCC, if, after
consummation of the Offer, Purchaser owns at least 90% of the Shares then
outstanding, Ultimate Parent will be able to cause the Merger to occur without a
vote of the Company's shareholders. In such event, Ultimate Parent, Parent,
Acquisition and the Company have agreed to take all necessary and appropriate
action to cause the Merger to become effective in accordance with the GBCC and
the DGCL as promptly as practicable after consummation of the Offer, without a
meeting of the shareholders of the Company. If, however, after consummation of
the Offer, Ultimate Parent owns less than such number of Shares, the Merger must
generally be approved by the vote of the holders of a majority of the
outstanding Shares.
The Offer is scheduled to expire at 12:00 midnight, New York City time, on
Tuesday, August 3, 1999, unless the Purchaser, in accordance with the terms of
the Merger Agreement, extends the period of time which the Offer is open. A copy
of the press release issued jointly by the Company and Purchaser on July 7, 1999
announcing the Merger and the Offer is filed as Exhibit (a)(10) to this Schedule
14D-9.
Background of the Offer
In the fall of 1997, the Company was approached by one of its enterprise
network customers (a publicly traded company) regarding their potential interest
in acquiring the Company. After several discussions between the parties and
review by the potential bidder of information provided by the Company, that
company expressed an indication of interest in pursuing more definitive
negotiations for a stock-for-stock transaction. The Company's Board discussed
the proposed offer, but was concerned about the price stability of the bidder's
stock proposed to be issued to the Company's shareholders. Thus, because the
Board believed the offer was not in the best interests of the Company's
shareholders, the Board did not pursue further discussions with this party.
In early 1998, the Company was approached by a large telecommunications
company regarding their interest in considering buying a partial interest in the
Company. Because the Board believed that a partial sale of the Company was not
in the best interests of its shareholders, the Board did not pursue this
minority interest sale. Subsequently, this same company inquired about the
Company's interest in a sale of the entire Company, and the Board agreed to
pursue discussions with them to determine their level of interest and the value
given to the Company by that bidder.
The Company engaged BT Alex. Brown ("BT Alex. Brown," which was succeeded
by Deutsche Bank Securities Inc. -- "Deutsche Bank") to represent the Company in
its discussions with the telecommunications company and to assist the Company's
Board in its determination of the fairness of any forthcoming offer to acquire
the Company. In connection with its efforts on behalf of the Company, BT Alex.
Brown contacted or received inquiries from 34 companies that could be
potentially interested in pursuing a business combination with the Company,
including both strategic and financial bidders. 13 of the 34 parties, including
the Purchaser, executed a confidentiality and standstill agreement and received
a confidential memorandum and other materials regarding the Company and its
business operations. Seven of the 34 companies visited the Company's offices,
met with Mr. John Koehler (President and Chief Executive Officer) and Mr. Jerrel
W. Kee (Chief Financial Officer) and other Company personnel, and conducted
various levels of information gathering and due diligence review of the
Company's financial matters and business operations.
After considerable discussions took place and information was provided by
the Company, the telecommunications company indicated an interest in acquiring
the Company for $60 million plus the proceeds from the proposed sale of the
Company's custom PC (personal computer) services business. The Board rejected
this proposal. Due to both the uncertain valuation and complexity of such a
transaction, it was deemed to be not in the best interests of the Company's
shareholders.
Discussions with this bidder were discontinued, and BT Alex. Brown
continued its program of evaluating the potential interest from other bidders in
acquiring the Company. The Purchaser was among the third
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parties with whom the Company had discussions under the BT Alex. Brown project.
In August 1998, the Company received a proposal of $6.50 cash for each share of
the Company's stock from one of the parties originally contacted by BT Alex.
Brown. The bidder proposed a two-step acquisition of a tender offer followed by
a merger. This per-share amount was only $.31 per share higher than the stock's
closing price on that day. The Board (also including Mr. Kee and representatives
from BT Alex. Brown) met to discuss this bid and the status of BT Alex. Brown's
efforts as of that time. During those meetings, BT Alex. Brown informed the
Board of two other companies that were interested in a possible transaction with
the Company, including the Purchaser. Mr. Zacamy of BT Alex. Brown explained
that the Purchaser was, at that time, primarily interested only in a possible
bid for the Company's network services. During the August 1998 meetings, the
Board carefully considered the $6.50 per share offer, but concluded that the
price was not sufficient and would not be in the best interests of the Company's
shareholders, and thus it was rejected.
In September 1998, Mr. Richard Blaustein and Mr. Jean-Yves Charlier of
Purchaser met with Mr. Koehler and Mr. Kee at the Company's executive offices in
Clearwater, Florida to discuss a possible business combination between the two
companies. These meetings included discussions of strategic, operational,
financial and related due diligence matters.
BT Alex. Brown continued its discussions with possible business combination
candidates throughout the fall of 1998, with full participation and debate by
the Board regarding all indications of interest, proposals, bids, valuations of
the Company, strategic and financial concerns and related matters. In October
1998, one potential purchaser of the Company indicated to BT Alex. Brown that an
increase of its previously-rejected offer was unlikely.
In early November 1998, the Purchaser expressed an interest in buying the
Company's network services and hardware business, excluding its PC services
business for approximately $29 million, subject to adjustment based on the
valuation of the assets ultimately acquired. The bid was rejected based on its
insufficient price and because the sale of only a segment of the Company's
operations did not fit the Board's strategic plan. Therefore the bid was deemed
not in the best interests of the shareholders. In November 1998, the
telecommunications company again approached the Company with an interest in
acquiring the Company. BT Alex. Brown discussed the preliminary proposed terms
of the transaction from that potential bidder, including its verbal tentative
pricing proposal. The Board authorized the Company counsel (Hunton & Williams)
and BT Alex. Brown to work with Mr. Bert Nordin, as the Board's representative,
regarding various matters which would possibly require the Board's input or
direction in connection with the negotiations with this potential purchaser or
any others. The Board gave Mr. Nordin authority to agree on a period of
exclusivity.
In January 1999, the Board received a bid from that potential purchaser to
acquire all of the Company's stock for $7.50 per share. After receipt of the
bid, the Board deliberated in detail the bid, its key terms and the parameters
of the proposed transaction, which was a cash tender offer for the stock
followed by a merger. The Board authorized Mr. Nordin and the Company's
executive officers to engage in negotiations. The potential purchaser performed
a due diligence review of the Company, and Mr. Nordin, Mr. Kee and the Company's
outside legal counsel (Mr. Scott Hobby and Mr. Tinley Anderson) negotiated the
terms and documents required for the transaction. BT Alex. Brown indicated to
the Board that it was preliminarily prepared to issue a fairness opinion as to
the cash amount of the bid. However, after extensive deliberation, in February
the Board ultimately rejected the cash bid which it considered with other
proposed key terms of the transaction to not be in the best interests of the
Company's shareholders. At this time, the Company discontinued its engagement of
BT Alex. Brown. Thus, after February 1999, BT Alex. Brown discontinued its
contacts and discussions with potential bidders.
In March 1999, the Company was once again contacted by the Purchaser,
indicating an interest in acquiring the Company at a price above $8.00 per
share. At the request of the Purchaser, the Company entered into an exclusivity
agreement in May 1999, and thereafter representatives of the Company and
Purchaser began preliminary discussions and the due diligence review process.
The Company's legal counsel then began preliminary negotiations of the
transaction documents with legal counsel to the Purchaser.
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In May 1999, the Board approved the key terms and structure of the bid from
the Purchaser. At that time, the Company also extended the term of the previous
1998 confidentiality agreement and entered into an exclusivity agreement with
the Purchaser through June 9, 1999. The Company also extended its agreement with
BT Alex. Brown for financial advisory services and authorized Mr. Nordin to
negotiate the deal with the Purchaser on behalf of the Company, provided that he
keep the Board fully informed as to the current status and other matters.
Negotiations of the transaction terms and documents continued throughout May and
June 1999, including several meetings and conference calls between various
groups of the executive officers, investment bankers and legal counsel of the
Company and the Purchaser.
In June 1999, the Board met to deliberate and make a final decision on
whether to approve or reject the Purchaser's bid. The Board heard a presentation
from Mr. Zacamy of BT Alex. Brown as to its assessment of the fairness of the
transaction consideration ($8.50 per share) from a financial point of view.
After reviewing all the various factors in its assessment of the Purchaser's
offer, BT Alex. Brown indicated that in its opinion, the Purchaser's proposed
consideration would be fair from a financial point of view. After full
consideration and discussion of the structure, terms and conditions of the
Purchaser's bid, the Board approved the proposed transaction as fair and in the
best interests of the Company's shareholders. Thereafter, the Company's
executive officers, together with representatives from BT Alex. Brown and the
Company's legal counsel continued negotiations and preparation of the various
transaction documents. On June 30, 1999 the agreements were finalized and
executed by both parties, and the transaction was announced on that day by a
joint press release sent to the major business wire agencies.
Reasons for the Recommendation
At a meeting held in June 1999, the Board unanimously (i) approved the
Offer and the Merger, (ii) determined that the Offer and Merger are fair to, and
in the best interests of, the shareholders of the Company and (iii) resolved to
recommend that shareholders accept the Offer and tender their Shares and, if
necessary under the terms of the Merger Agreement, approve and adopt the Merger
and any other transactions contemplated by the Merger Agreement.
In arriving at its decision to approve the Offer and Merger and to
recommend acceptance of the Offer, the Board of Directors considered, among
other things, (i) the terms and conditions of the Merger Agreement, including
the amount and all-cash form of the consideration; (ii) the fact that the $8.50
per Share price represented a premium of approximately 11.5% over last reported
sales price of a share of the Company's common stock on The Nasdaq National
Market of $7.625 per share on June 29, 1999 (the last full trading date prior to
the Board's approval of the Tender Offer), and approximately a 25.2% premium
over the last 90 days' average stock closing price; (iii) the recent historical
market prices of the Shares; (iv) the Board of Directors' knowledge of the
business, operations, prospects, properties, assets and earnings of the Company;
(v) the Board of Directors' thorough evaluation of the other strategic
alternatives available to the Company and the risks associated with such other
alternatives; (vi) the potential effect of the Offer and Merger on the Company's
relationships with its customers and employees; (vii) the likelihood that the
proposed Merger would be consummated, including the conditions to the Offer;
(viii) the competitive environment of the Company's industry; (ix) the fact that
pursuant to the Merger Agreement, the Company is not prohibited from responding
to any unsolicited acquisition proposal (as described in the Merger Agreement)
to acquire the Company, in exercise of the fiduciary duties of the Board of
Directors; (x) the fact that shareholders of the Company would be entitled to
dissenters' rights under the GBCC in connection with the Merger; and (xi) the
opinion of Deutsche Bank (as successor to BT Alex. Brown) that the $8.50 per
Share in cash to be received by the shareholders pursuant to the Merger
Agreement is fair to such holders from a financial point of view. The opinion of
Deutsche Bank contains a description of the factors considered, the assumptions
made and the scope of the review undertaken in rendering its opinion. THE FULL
TEXT OF THE OPINION RECEIVED BY THE COMPANY FROM DEUTSCHE BANK IS FILED AS
EXHIBIT (a)(11) TO THIS SCHEDULE 14D-9. SHAREHOLDERS ARE URGED TO READ SUCH
OPINION IN ITS ENTIRETY.
The Board of Directors recognized that consummation of the Offer and the
Merger will deprive current shareholders of the Company of the opportunity to
participate in the future growth prospects of the Company
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and, therefore, in reaching its conclusion to approve the Offer and the Merger,
determined that the historical results of operations and future prospects of the
Company are adequately reflected in the price of $8.50 per Share. In addition,
the Board of Directors considered the possibility that, in the unlikely event
the Offer but not the Merger is consummated, the number of shareholders could be
reduced, which could adversely affect the liquidity and market value of the
Shares.
In light of all the factors set forth above, the Board of Directors
approved the Offer and the Merger. In view of the variety of factors considered
in connection with its evaluation of the Offer and the Merger, the Board of
Directors did not assign relative weights to the specific factors considered in
reaching its decision.
It is expected that if Shares are not accepted for payment by the Purchaser
in the Offer and if the Merger is not consummated, the Company's current
management, under the general direction of the Board of Directors, will continue
to manage the company as an on-going business. However, the Company may, under
these circumstances, continue to explore other possible methods of increasing
its revenues, which may include restructuring its capital position through
offerings of debt or equity securities or other strategic business combination.
ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "The Tender Offer -- 17. Fees and Expenses" of
the Offer to Purchase is incorporated herein by reference.
The Company retained BT Alex. Brown Incorporated (predecessor to Deutsche
Bank) to provide financial advice and assistance in connection with the possible
sale of all or a portion of the Company. Pursuant to a letter agreement dated
May 13, 1998 (as amended May 20, 1999) between the Company and BT Alex. Brown,
the Company agreed to pay BT Alex. Brown a fee of 1.5% of the aggregate
consideration paid in a business combination involving the Company, which amount
equals approximately $1.1 million for acting as financial advisor in connection
with the transaction. The Company has also agreed to reimburse BT Alex. Brown
for its reasonable out-of-pocket expenses incurred in connection with rendering
financial advisory services, including fees and disbursements of its legal
counsel. The Company has agreed to indemnify BT Alex. Brown and its directors,
officers, agents, employees and controlling persons for certain costs, expenses
and liabilities to which it may be subjected arising out of or related to its
engagement as financial advisor.
In May 1999, the Company entered into an agreement with Mr. Bert Nordin, a
Director of the Company, pursuant to which he has provided lead negotiation and
related financial advisory services to the Company and the Board in connection
with the Company's ongoing transactions. In exchange for such services, Mr.
Nordin will receive $150,000 upon completion of the transactions contemplated in
the Merger Agreement.
Except as set forth above, neither the Company nor any person acting on its
behalf has or currently intends to employ, retain or compensate any person to
make solicitations or recommendations to the shareholders of the Company on its
behalf with respect to the Offer.
ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES.
(a) Except as set forth in Item 3(b) (the provisions of which are hereby
incorporated by reference) and the immediately following sentence, no
transactions in the Shares have been effected during the past 60 days by the
Company or, to the best of the Company's knowledge, by any executive officer,
director, affiliate, or subsidiary of the Company.
(b) Pursuant to certain letter agreements dated June 30, 1999, certain of
the Company's shareholders have agreed, subject to certain limitations, to
tender all of their shares of the Company's Common Stock to Purchaser pursuant
to the Offer and vote their shares in favor of the Merger, as follows: (i) John
A. Koehler, Chairman of the Board, President and Chief Executive
Officer -- 592,470 shares; (ii) Sandra Koehler -- 97,000 shares; (iii) Paul J.
Ferri -- 152,665 shares; (iv) Richard D. Tadler, a director of the Company --
2,739 shares; (v) TA Venture Investors Limited Partnership -- 19,394 shares and
(vi) the TA Associates Group (as defined below) -- 1,785,335 shares.
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Advent VII L.P., Advent Atlantic and Pacific II L.P., Advent New York L.P.,
Advent Industrial II L.P. and TA Venture Investors Limited Partnership are part
of an affiliated group of investment partnerships collectively referred to as
the "TA Associates Group." Mr. Tadler, a director of the Company, is a Managing
Director of TA Associates, Inc. which is the sole General Partner of TA
Associates VII L.P., TA Associates VI L.P. and TA Associates AAP II Partners
L.P. TA Associates VII L.P. is the sole General Partner of Advent VII L.P. TA
Associates VI L.P. is the sole General Partner of Advent New York L.P. and
Advent Industrial II L.P. TA Associates AAP II Partners L.P. is the sole General
Partner of Advent Atlantic and Pacific II L.P. Mr. Tadler is a General Partner
of TA Venture Investors Limited Partnership. TA Associates, Inc. exercises sole
voting and investment power with respect to all of the shares held of record by
the named investment partnerships with the exception of those shares held by TA
Venture Investors Limited Partnership. Principals and employees of TA
Associates, Inc. (including Mr. Tadler) comprise the General Partners of TA
Venture Investors Limited Partnership.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY.
(a) None, except as set forth in response to Item 3(b) above.
(b) None, except as described in response to Item 3(b) and Item 4(b) above.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
The information contained in all of the Exhibits referred to in Item 9
below is incorporated herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
A list of exhibits filed with this Schedule 14D-9 is set forth on the
Exhibit Index immediately following the signature page of this Schedule 14D-9
and is incorporated herein by reference.
8
<PAGE> 10
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
TECHFORCE CORPORATION
By: /s/ JERREL W. KEE
------------------------------------
Name: Jerrel W. Kee
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
Dated: July 7, 1999
9
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE NO.
- ------- ----------- --------
<S> <C> <C> <C>
(a)(1) -- Offer to Purchase, dated July 7, 1999.......................
(a)(2) -- Letter to Shareholders, dated July 7, 1999*.................
(a)(3) -- Letter of Transmittal.......................................
(a)(4) -- Notice of Guaranteed Delivery...............................
(a)(5) -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees................................
(a)(6) -- Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and other Nominees...................
(a)(7) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9...............................
(a)(8) -- Summary Advertisement.......................................
(a)(9) -- Option Election Form........................................
(a)(10) -- Joint Press Release issued by the Company and Equant N.V. on
June 30, 1999...............................................
(a)(11) -- Fairness Opinion from Deutsche Bank Securities Inc.*
(b) -- Not applicable..............................................
(c)(1) -- Agreement and Plan of Merger among TechForce Corporation,
Equant N.V., Equant Holdings U.S., Inc. and Equant
Acquisition Corp. dated as of June 30, 1999.................
(c)(2) -- Confidentiality Agreement dated June 18, 1998 between Equant
Integration Service, Inc. and TechForce Corporation and
Modification Agreement dated May 18, 1999...................
(c)(3) -- Voting and Tender Letter Agreements dated June 30, 1999 by
and between Equant N.V., Equant Holdings U.S., Inc., Equant
Acquisition Corp. and certain shareholders of the Company...
(c)(4) -- Indemnification Agreements, dated as of June 30, 1999, by
and between the Company and each member of the Board of
Directors...................................................
(c)(5) -- Indemnification Agreement, dated as of June 30, 1999, by and
between Equant N.V., Equant Holdings U.S., Inc., Equant
Acquisition Corp. and John A. Koehler.......................
(c)(6) -- Exclusivity Letter..........................................
</TABLE>
- ---------------
* Included in copies mailed to shareholders.
10
<PAGE> 1
EXHIBIT (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TECHFORCE CORPORATION
AT
$8.50 NET PER SHARE
BY
EQUANT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
EQUANT HOLDINGS U.S., INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, AUGUST 3, 1999, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT
NUMBER OF SHARES (THE "SHARES") OF COMMON STOCK OF TECHFORCE CORPORATION (THE
"COMPANY") WHICH, TOGETHER WITH THE SHARES OWNED BY EQUANT HOLDINGS U.S., INC.
(THE "PARENT") AND EQUANT ACQUISITION CORP. (THE "PURCHASER"), CONSTITUTES MORE
THAN 50% OF THE VOTING POWER (DETERMINED ON A FULLY DILUTED BASIS) (THE "MINIMUM
CONDITION") AND (II) THE EXPIRATION OR TERMINATION OF ALL APPLICABLE WAITING
PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS
AMENDED. THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS. SEE THE
INTRODUCTION AND SECTIONS 1 AND 15.
THE OFFER IS BEING MADE IN CONNECTION WITH THE AGREEMENT AND PLAN OF
MERGER, DATED AS OF JUNE 30, 1999, BY AND AMONG THE COMPANY, THE PARENT, THE
PURCHASER AND EQUANT N.V. (THE "ULTIMATE PARENT"). THE BOARD OF DIRECTORS OF THE
COMPANY HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, HAS DETERMINED THAT
THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
COMPANY'S STOCKHOLDERS AND RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE
OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares (as defined herein) of the Company should either (1) complete and sign
the Letter of Transmittal (or a manually signed facsimile thereof) in accordance
with the instructions in the Letter of Transmittal, mail or deliver the Letter
of Transmittal (or such facsimile) and any other required documents to the
Depositary (as defined herein), and either deliver the certificates evidencing
the tendered Shares and any other required documents to the Depositary or tender
such Shares pursuant to the procedure for book-entry transfer set forth in
Section 3 or (2) request such stockholder's broker, dealer, commercial bank,
trust company or other nominee to effect the transfer for such stockholder.
Stockholders having Shares registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if they desire to tender
Shares so registered.
A stockholder who desires to tender Shares and whose certificates
evidencing such Shares are not immediately available, or who cannot comply with
the procedure 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 Dealer Manager
or to the Information Agent 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 and the Notice of Guaranteed
Delivery may also be obtained from the Information Agent, the Dealer Manager, or
from brokers, dealers, commercial banks or trust companies.
The Dealer Manager for the Offer is:
[Credit Suisse First Boston Corporation Logo]
July 7, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INTRODUCTION................................................ 3
THE TENDER OFFER............................................ 5
1. Terms of the Offer; Expiration Date.................. 5
2. Acceptance for Payment and Payment for Shares........ 6
3. Procedures for Accepting the Offer and for Tendering
Shares............................................... 7
4. Withdrawal Rights.................................... 10
5. Certain Federal Income Tax Consequences.............. 10
6. Price Range of Shares; Dividends..................... 11
7. Certain Information Concerning the Company........... 11
8. Certain Information Concerning the Purchaser, the
Parent and the Ultimate Parent....................... 13
9. Source and Amount of Funds........................... 14
10. Background of the Offer; Contacts with the Company... 15
11. The Merger Agreement................................. 16
12. Purpose of the Offer; the Merger; Plans for the
Company.............................................. 29
13. Dividends and Distributions.......................... 30
14. Effect of the Offer on the Market for the Shares,
Nasdaq Listing and Exchange Act Registration......... 31
15. Certain Conditions of the Offer...................... 32
16. Certain Legal Matters and Regulatory Approvals....... 34
17. Fees and Expenses.................................... 35
18. Miscellaneous........................................ 36
EXHIBIT A Article 13, Georgia Business Corporation
Code -- Dissenters' Rights
SCHEDULE I Certain Information Regarding the Directors and
Executive Officers of the Purchaser, the Parent
and the Ultimate Parent
</TABLE>
2
<PAGE> 3
To the Holders of Common Stock of Techforce Corporation:
INTRODUCTION
Equant Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Equant Holdings U.S., Inc., a Delaware corporation
(the "Parent") and itself a wholly owned subsidiary of Equant N.V., a company
organized under the laws of The Netherlands (the "Ultimate Parent"), hereby
offers to purchase all of the outstanding shares of Common Stock, par value
$0.01 per share (the "Shares"), of TechForce Corporation, a Georgia corporation
(the "Company"), at a purchase price of $8.50 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in this Offer to Purchaser and in the related Letter of Transmittal
(which, as amended or supplemented from time to time, together constitute the
"Offer").
Tendering stockholders who have Shares registered in their own name and who
tender directly to the Depositary 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 transfer and sale of Shares pursuant to
the Offer. Stockholders who hold Shares through their bank or broker should
consult with them as to whether they charge any service fees. The Purchaser will
pay all fees and expenses of Credit Suisse First Boston Corporation ("CSFB"),
which is acting as Dealer Manager for the Offer (in such capacity, the "Dealer
Manager"), Georgeson Shareholder Communications Inc., as the Information Agent
(the "Information Agent") and American Stock Transfer & Trust Company, as the
Depositary (the "Despositary"), incurred in connection with the Offer. See
Section 17.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD OF DIRECTORS") HAS
UNANIMOUSLY APPROVED THE MERGER AGREEMENT (AS DEFINED BELOW) AND THE
TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER (AS
DEFINED BELOW), HAS DETERMINED THAT THE OFFER AND MERGER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS AND RECOMMENDS THAT THE COMPANY'S
STOCKHOLDERS 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 PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1) THAT NUMBER OF SHARES WHICH, TOGETHER WITH THE SHARES OWNED BY THE
ULTIMATE PARENT, THE PARENT AND THE PURCHASER, CONSTITUTES MORE THAN 50% OF THE
VOTING POWER (DETERMINED ON A FULLY DILUTED BASIS) (THE "MINIMUM CONDITION") AND
(ii) THE EXPIRATION OR TERMINATION OF ALL APPLICABLE WAITING PERIODS UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR
ACT"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS. SEE SECTIONS 1
AND 15. IF THE PURCHASER PURCHASES NOT LESS THAN THAT NUMBER OF SHARES NEEDED TO
SATISFY THE MINIMUM CONDITION, IT WILL BE ABLE TO EFFECT THE MERGER WITHOUT THE
AFFIRMATIVE VOTE OF ANY OTHER STOCKHOLDER OF THE COMPANY. SEE SECTION 12.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of June 30, 1999 (the "Merger Agreement"), by and among the Ultimate Parent,
the Parent, the Purchaser and the Company. The Merger Agreement provides, among
other things, for the making of the Offer by the Purchaser, and further provides
that, following the completion of the Offer, upon the terms and subject to the
conditions of the Merger Agreement, the Georgia Business Corporation Code (the
"GBCC") and the Delaware General Corporation Law (the "DGCL"), the Purchaser
will be merged with and into the Company (the "Merger"). Following the Merger,
the Company will continue as the surviving corporation (the "Surviving
Corporation") and become a wholly owned subsidiary of the Parent, and the
separate corporate existence of the Purchaser will cease. See Section 12.
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 each Share owned by the Parent,
the Purchaser or any other direct or indirect subsidiary of the Parent or of the
Company, which shall be cancelled, and other than Shares, if any (collectively,
"Dissenting Shares")), held by
3
<PAGE> 4
stockholders who have not properly exercised rights under Article 13 of the
GBCC, will be cancelled, extinguished and converted into the right to receive
$8.50 in cash (the "Merger Consideration"), payable to the holder thereof,
without interest thereon, upon surrender of the certificate formerly
representing such Share, less any required withholding taxes.
The Company has represented to the Parent that as of June 28, 1999, there
were 8,280,765 Shares issued and outstanding and 1,242,960 Shares reserved for
issuance upon the exercise of outstanding stock options. Based upon the
foregoing, if the Purchaser acquires at least 4,140,383 Shares in the Offer, the
Minimum Condition will be satisfied. Accordingly, the Purchaser would have
sufficient voting power to approve the Merger without the affirmative vote of
any other stockholder. Pursuant to certain letter agreements dated June 30,
1999, certain of the Company's shareholders have agreed, subject to certain
limitations, to tender their Shares in the Offer and to vote their Shares in
favor of the Merger.
The Company has advised the Purchaser that, to the knowledge of the
Company, all the directors of the Company intend to tender their Shares pursuant
to the Offer.
The Merger Agreement is more fully described in Section 11. Certain federal
income tax consequences of the sale of the Shares pursuant to the Offer and the
exchange of Shares for the Merger Consideration pursuant to the Merger are
described in Section 5.
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.
4
<PAGE> 5
THE TENDER OFFER
1. TERMS OF THE OFFER; EXPIRATION DATE. Upon the terms and subject to the
conditions of the Offer (including if the Offer is extended or amended, the
terms and conditions of such extension or amendment), the Purchaser will accept
for payment and pay for all Shares validly tendered prior to the Expiration Date
(as defined below) and not properly withdrawn as permitted by Section 4. The
term "Expiration Date" means 12:00 Midnight, New York City time, on Tuesday,
August 3, 1999, unless and until the Purchaser, in its sole discretion (but
subject to the terms and conditions of the Merger Agreement), shall have
extended the period during which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date at which the Offer, as so
extended by the Purchaser, shall expire.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, SATISFACTION OF THE
MINIMUM CONDITION AND CERTAIN OTHER CONDITIONS. SEE SECTION 15. SUBJECT TO THE
PROVISIONS OF THE MERGER AGREEMENT AND THE APPLICABLE RULES AND REGULATIONS OF
THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"), THE PURCHASER
RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO WAIVE ANY OR ALL CONDITIONS OF
THE OFFER (OTHER THAN THE MINIMUM CONDITION) AND TO MAKE ANY OTHER CHANGES IN
THE TERMS AND CONDITIONS OF THE OFFER. SUBJECT TO THE PROVISIONS OF THE MERGER
AGREEMENT, INCLUDING THE PROVISIONS OF THE MERGER AGREEMENT SET FORTH IN THE
NEXT PARAGRAPH, AND THE APPLICABLE RULES AND REGULATIONS OF THE COMMISSION, IF
BY THE EXPIRATION DATE ANY OR ALL OF SUCH CONDITIONS TO THE OFFER HAVE NOT BEEN
SATISFIED, THE PURCHASER RESERVES THE RIGHT (BUT SHALL NOT BE OBLIGATED) TO (i)
TERMINATE THE OFFER AND RETURN ALL TENDERED SHARES TO TENDERING STOCKHOLDERS,
(ii) WAIVE SUCH UNSATISFIED CONDITIONS AND PURCHASE ALL SHARES VALIDLY TENDERED
AND NOT PROPERLY WITHDRAWN (OTHER THAN THE MINIMUM CONDITION) OR (iii) EXTEND
THE OFFER AND, SUBJECT TO THE TERMS OF THE OFFER (INCLUDING THE RIGHTS OF
STOCKHOLDERS TO WITHDRAW THEIR SHARES), RETAIN THE SHARES WHICH HAVE BEEN
TENDERED, UNTIL THE TERMINATION OF THE OFFER, AS EXTENDED.
Subject to the applicable rules and regulations of the Commission and the
terms of the Merger Agreement, the Purchaser expressly reserves the right, in
its sole discretion, at any time and from time to time, and regardless of
whether or not any of the events set forth in Section 15 shall have occurred, to
(i) extend the period of time during which the Offer is open and thereby delay
acceptance for payment of, and the payment for, any Shares, by giving oral or
written notice of such extension to the Depositary and (ii) amend the Offer in
any respect by giving oral or written notice of such amendment to the
Depositary. During any such extension, all Shares previously tendered and not
properly withdrawn will remain subject to the Offer, subject to the right of a
tendering stockholder to withdraw such stockholder's Shares. Under the terms of
the Merger Agreement, however, unless previously approved by the Company in
writing, the Purchaser will not change the Minimum Condition or decrease the
price per Share payable in the Offer, change the form of consideration payable
in the Offer (other than by adding consideration), reduce the maximum number of
Shares to be purchased in the Offer, or amend the terms or conditions to the
Offer to impose conditions or terms to the Offer in addition to those set forth
in Section 15 which, in either case, are adverse to the holders of Shares. The
Purchaser shall have no obligation to pay interest on the Offer Price of
tendered Shares. The rights reserved by the Purchaser in this paragraph are in
addition to the Purchaser's rights to terminate the Offer pursuant to Section
15.
Any extension, delay, termination, waiver or amendment will be followed (as
promptly as practicable) by public announcement thereof, and such announcement
in the case of an extension will be made in accordance with Rule 14e-1(d) 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, except as provided by
applicable law (including Rules 14d-4(c) and 14(d)-6(d) under the Securities
Exchange Act of 1934, as amended (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.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
the Purchaser will disseminate additional tender offer material and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1(d) under the
5
<PAGE> 6
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of the offer, other than a change in
price or a change in the percentage of securities sought, will depend upon the
facts and circumstances, including the materiality, of the changes. With respect
to a change in price or, subject to certain limitations, a change in the
percentage of securities sought, a minimum ten business day period from the date
of such change is generally required to allow for adequate dissemination to
stockholders. 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 by the Purchaser to record holders
of Shares whose names appear on the Company's stockholder list and furnished to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the stockholder list 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 any such extension or amendment), the
Purchaser will accept for payment, and will pay for, all Shares validly tendered
prior to the Expiration Date and not properly withdrawn as soon as practicable
after the later to occur of (i) the Expiration Date and (ii) the satisfaction or
waiver of the conditions of the Offer set forth in Section 15, including without
limitation the expiration or termination of the waiting period applicable to the
acquisition of Shares pursuant to the Offer and the Merger under the HSR Act,
and satisfaction of any applicable foreign regulatory requirements. 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 other regulatory approvals specified in Section 16. Any such
delays will be effected in compliance with Rule 14e-1(c) under the Exchange Act.
See Section 16.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of (i)
Certificates evidencing such Shares ("Share Certificates") or timely
confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such
Shares into the Depositary's account at The Depository Trust Company (the
"Book-Entry Transfer Facility") pursuant to the procedures set forth in Section
3, (ii) the Letter of Transmittal (or a manually signed 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 the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the 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 for payment of such Shares 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. Upon deposit of funds with the Depositary for
the purpose of making payments to tendering stockholders, the Purchaser's
obligation to make such payment is satisfied, and tendering stockholders must
thereafter look solely to the Depositary for payment of amounts owed to them by
reason of the acceptance for payment of Shares pursuant to the Offer.
6
<PAGE> 7
If for any reason whatsoever acceptance for payment of, or payment for, any
Shares validly tendered pursuant to the Offer and not properly withdrawn is
delayed or the Purchaser is unable to accept for payment, or pay for, such
Shares, then without prejudice to the Purchaser's rights set forth herein, the
Depositary may nevertheless, on behalf of the Purchaser and subject to Rule
14e-1(c) under the Exchange Act, 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 Section 4.
If any tendered Shares are not accepted for payment for any reason pursuant
to the terms and conditions of the Offer or if Share Certificates are submitted
for more Shares than are tendered, Share Certificates evidencing 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 procedures 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.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to one or more of its 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 and will in no way prejudice the rights of tendering stockholders to
receive payment for Shares validly tendered and accepted for payment pursuant to
the Offer.
If, prior to the Expiration Date, the Offeror increases the Offer Price,
such increased consideration will be paid to all stockholders whose Shares are
purchased pursuant to the Offer, whether or not such Shares were tendered prior
to such increased consideration.
3. PROCEDURES FOR ACCEPTING THE OFFER AND FOR TENDERING SHARES. Valid
Tenders. Except as set forth below, in order for Shares to be validly tendered
pursuant to the Offer, the Letter of Transmittal (or a manually signed facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer 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 evidencing tendered Shares must be received by
the Depositary at such address or such Shares must be tendered pursuant to the
procedures for book-entry transfer described below and a Book-Entry Confirmation
must be received by the Depositary in each case prior to the Expiration Date or
(ii) the tendering stockholder must comply with the guaranteed delivery
procedures described below.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facility 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 the 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 the
Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's procedures for such transfer. However, although delivery of Shares
may be effected through book-entry transfer at a Book-Entry Transfer Facility,
the Letter of Transmittal (or a manually signed facsimile thereof), properly
completed and duly executed, together with any required signature guarantees, or
an Agent's Message in connection with a book-entry transfer, and any other
documents required by the Letter of Transmittal, must, in any case, 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, or the tendering stockholder
must comply with the guaranteed delivery procedures described below.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE DEPOSITARY.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT
THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND THE DELIVERY
7
<PAGE> 8
WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal in cases where Shares 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 (as defined
below). In all other cases, Signatures on Letters of Transmittal must be
guaranteed by a firm which is a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the Securities
Transfer Agents Medallion Program, or by any other "eligible guarantor
institution," as such term is defined in Rule 17Ad-15 under the Exchange Act
(each of the foregoing being referred to as an "Eligible Institution"). See
Instructions 1 and 5 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, or the
Share Certificates not accepted for payment or not tendered are to be returned
to a person other than the registered holder, the Share Certificates must be
endorsed or accompanied by appropriate stock powers, in either case, signed
exactly as the name of the registered holder appears on such certificates, with
the signatures on such certificates or stock powers guaranteed as aforesaid. See
Instructions 1 and 5 of the Letter of Transmittal.
If the Share Certificates are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof) must accompany each such delivery.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share Certificates evidencing such Shares are
not immediately available, or such stockholder cannot deliver the Share
Certificates and all other required documents to reach the Depositary on or
prior to the Expiration Date, or such stockholder cannot complete the procedure
for delivery by book-entry transfer on a timely basis, such Shares may
nevertheless be tendered, provided that all of the following conditions are
satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by 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),
representing all tendered Shares, in proper form for transfer, together
with the Letter of Transmittal (or a manually signed facsimile thereof),
properly completed and duly executed, with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message)
and any other documents required by the Letter of Transmittal, are received
by the Depositary within three Nasdaq National Market trading days after
the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, telex, facsimile transmission or mail to the Depositary and must
include a guarantee by an Eligible Institution and a representation that the
stockholder owns the Shares tendered within the meaning of, and that the tender
of the Shares effected thereby complies with, Rule 14e-4 under the Exchange Act,
each in the form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision 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 a manually signed facsimile thereof),
together with any required signature guarantees (or, in the case of a book-entry
transfer, an Agent's Message) and any other documents required by the Letter of
Transmittal.
8
<PAGE> 9
Accordingly, payment might not be made to all tendering stockholders at the same
time and will depend upon when Share Certificates or Book-Entry Confirmations of
such Shares are received into the Depositary's account at the Book-Entry
Transfer Facility.
Appointment as Proxy. By executing the Letter of Transmittal as set forth
above, a tendering stockholder irrevocably appoints designees of the Purchaser
and each of them as such stockholder's attorneys-in-fact and proxies, each 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 or other securities issued or
issuable in respect of such Shares on or after the date hereof). 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 when, and
only to the extent that, the Purchaser accepts such Shares for payment. Upon
such acceptance for payment, all prior powers of attorney and proxies given by
such stockholder with respect to such Shares (and such other Shares and
securities) will be revoked without further action, and no subsequent powers of
attorney and proxies may be given nor any subsequent written consents executed
by such stockholder (and, if given or executed, will not be deemed effective
with respect thereto). The designees of the Purchaser will, with respect to the
Shares (and such other Shares and 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, by written consent in lieu of any such meeting or otherwise. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, immediately upon the Purchaser's payment for such Shares, the
Purchaser must be able to exercise full voting rights with respect to such
Shares and other securities, including voting at any meeting of stockholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by the Purchaser in its sole discretion, which
determination shall be final and binding on all parties. The Purchaser reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance for payment of which may in the opinion of its
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. No tender of Shares
will be deemed to have been validly made until all defects and irregularities
have been cured or waived. None of the Ultimate Purchaser, the Purchaser, the
Parent, any of their affiliates or assigns, the Dealer Manager, the Depositary,
the Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. 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.
Backup Federal Income Tax Withholding and Substitute Form W-9. Under the
"backup withholding" provisions of federal income tax law, the Depositary may be
required to withhold 31% of the amount of any payments of cash pursuant to the
Offer. In order to avoid backup withholding, each stockholder surrendering,
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such stockholder's correct taxpayer identification number ("TIN") on a
substitute Form W-9 and certify, under penalties of perjury, that such TIN is
correct and that such stockholder is not subject to backup withholding. If a
stockholder does not provide its correct TIN or fails to provide the
certifications described above, the Internal Revenue Service ("IRS") may impose
a penalty on such stockholder and payment of cash to such stockholder pursuant
to the Offer may be subject to backup withholding of 31%. All stockholders
surrendering Shares pursuant to the Offer should complete and sign the
substitute Form W-9 included in the Letter of Transmittal to provide the
information and certification necessary to avoid backup withholding (unless an
applicable exemption exists and is proved in a manner satisfactory to the
Depositary). Certain stockholders (including among others all corporations and
certain foreign individuals and entities) are not subject to backup withholding,
Noncorporate foreign stockholders should complete and sign a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 of the
Letter of Transmittal.
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<PAGE> 10
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, including the tendering
stockholder's representation and warranty that (i) the stockholder is the holder
of the Shares within the meaning of, and that the tender of the Shares complies
with, Rule 14e-4 under the Exchange Act, (ii) the stockholder has the full power
and authority to tender, sell, assign and transfer the tendered Shares (and any
other Shares or other securities issued or issuable in respect of such Shares on
or after July 7, 1999) and (iii) when the same are accepted for payment by the
Purchaser, the Purchaser will acquire good and unencumbered title thereto, free
and clear of all liens, restrictions, charges and encumbrances and not subject
to any adverse claims.
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 by the Purchaser pursuant to the Offer, may also be withdrawn at any
time after September 4, 1999. If the Purchaser extends the Offer, is delayed in
its acceptance for payment of Shares or is unable to purchase Shares validly
tendered pursuant to the Offer for any reason, then, without prejudice to the
Purchaser's rights under the Offer, the Depositary may nevertheless, on behalf
of the Purchaser, retain tendered Shares and such Shares may not be withdrawn
except to the extent that tendering stockholders are entitled to withdrawal
rights as described in this Section 4. Any such delay in acceptance for payment
will be accompanied by an extension of the Offer to the extent required by law.
For a withdrawal to be effective, a written, telegraphic, telex 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 notice of withdrawal must specify the name of the person who
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and
the name of the registered holder, if different from that of the person who
tendered such Shares. If Share Certificates to be withdrawn have been delivered
or otherwise identified to the Depositary, then prior to the physical release of
such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary and the signatures on the notice of withdrawal must
be guaranteed by an Eligible Institution unless such Shares have been tendered
for the account of an Eligible Institution. If Shares have been tendered
pursuant to the procedure for book-entry transfer as set forth in Section 3, any
notice of withdrawal must specify the name and number of the account at the
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.
All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination will be final and binding. None of the Ultimate
Purchaser, the Purchaser, the Parent, any of their affiliates or assigns, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn
will thereafter be deemed not to have been validly tendered for purposes of the
Offer. However, withdrawn Shares may be re-tendered at any time prior to the
Expiration Date by following one of the procedures described in Section 3.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. The summary of tax
consequences set forth below is for general information only and is based on the
law as currently in effect. The tax treatment of each stockholder will depend in
part upon such stockholder's particular situation. Special tax consequences not
described herein may be applicable to particular classes of taxpayers, such as
financial institutions, broker-dealers, persons who are not citizens or
residents of the United States, stockholders who acquired their Shares through
the exercise of an employee stock option or otherwise as compensation, and
persons who received payments in respect of options to acquire Shares. ALL
STOCKHOLDERS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX
CONSEQUENCES OF THE OFFER AND THE MERGER TO THEM, INCLUDING THE APPLICABILITY
AND EFFECT OF THE ALTERNATIVE MINIMUM TAX AND ANY STATE, LOCAL OR FOREIGN INCOME
AND OTHER TAX LAWS AND CHANGES IN SUCH TAX LAWS.
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<PAGE> 11
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for Federal income tax purposes under the Internal Revenue Code of
1986, as amended, and may also be a taxable transaction under applicable state,
local or foreign income or other tax laws. Generally, for Federal income tax
purposes, a tendering stockholder will recognize gain or loss in an amount equal
to the difference between the cash received by the stockholder pursuant to the
Offer or the Merger and the stockholder's adjusted tax basis in the Shares
tendered by the stockholder and purchased pursuant to the Offer or the Merger.
For Federal income tax purposes, such gain or loss will be a capital gain or
loss if the Shares are a capital asset in the hands of the stockholder, and a
long-term capital gain or loss if the stockholder's holding period is more than
one year as of the date the Purchaser accepts such Shares for payment pursuant
to the Offer or the effective date of the Merger, as the case may be. Under
present U.S. federal law, long-term capital gains are generally taxable at a
maximum rate of 20% for individuals and 35% for corporations. There are
limitations on the deductibility of capital losses.
6. PRICE RANGE OF SHARES; DIVIDENDS. The Shares are listed and traded on
the Nasdaq National Market under the symbol "TFRC." The following table sets
forth, for the quarters indicated, the high and low sales prices per Share on
the Nasdaq National Market as reported in the Company's Annual Report on Form
10-K for the year ended December 31, 1998 (the "1998 Annual Report") with
respect to periods occurring in 1997 and 1998 and as reported by the Dow Jones
News Service thereafter, and the amount of cash dividends paid or declared per
share for each quarter based on publicly available sources. The Company has not
paid any dividends on Shares during the periods set forth below.
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
Year Ended December 31, 1997:
First Quarter............................................ $ 8.75 $ 5.94
Second Quarter........................................... $ 7.88 $ 5.25
Third Quarter............................................ $11.25 $ 7.25
Fourth Quarter........................................... $ 9.00 $ 6.00
Year Ended December 31, 1998:
First Quarter............................................ $ 9.88 $ 6.13
Second Quarter........................................... $ 9.63 $ 6.06
Third Quarter............................................ $ 7.50 $ 5.38
Fourth Quarter........................................... $ 7.56 $ 5.75
Year Ended December 31, 1999:
First Quarter............................................ $ 7.50 $ 5.31
Second Quarter........................................... $ 8.19 $ 4.88
</TABLE>
On June 29, 1999, the last full trading day prior to announcement of the
Offer, the closing sale price per Share reported on the Nasdaq National Market
was $7.63. On July 6, 1999, the last full trading day before commencement of the
Offer, the closing sale price per Share reported on the Nasdaq National Market
was $8.19. Stockholders are urged to obtain a current market quotation for the
Shares.
Pursuant to the Merger Agreement, the Company has agreed not to declare,
set aside, make or pay any dividend or other distribution.
7. CERTAIN INFORMATION CONCERNING THE COMPANY. Except as otherwise set
forth herein, the information concerning the Company contained in this Offer to
Purchase, including financial information, has been furnished by the Company or
has been taken from or based upon publicly available documents and records on
file with the Commission and other public sources. The summary information set
forth below is qualified in its entirety by reference to such reports (which may
be obtained and inspected as described below) and should be considered in
conjunction with the more comprehensive financial and other information in such
reports and other publicly available reports and documents filed by the Company
with the Commission and other publicly available information. Although the
Purchaser, the Parent and the Ultimate Parent do not have any knowledge that
would indicate that any statements contained herein based upon such reports are
untrue,
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<PAGE> 12
neither the Purchaser, the Parent, the Ultimate Parent nor the Dealer Manager
assumes any responsibility for the accuracy or completeness of the information
contained therein or for any failure by the Company to disclose events that may
have occurred and may affect the significance or accuracy of any such
information but which are unknown to the Purchaser and the Parent and the
Ultimate Parent.
General. The Company was organized in 1991 as a Georgia general
partnership. In March 1994, the partnership transferred its assets and
liabilities to a new corporation named "TechForce." In December 1995, the
Company completed a public offering of 3,100,000 shares of Common Stock and
began trading on the Nasdaq National Market System. Headquartered in Clearwater,
Florida, the Company operates two primary business units providing support for
corporate enterprise networks and personal computers. Its Enterprise Network
Services business unit provides multivendor network support services for local
and wide area networks (LAN/WAN) to corporate clients including manufacturers,
telecommunications carriers and network integrators. Its enterprise services,
branded under the name "TechCareSM," provide integration, post sales support and
maintenance. It also sells and leases networking equipment which serves as a
base for additional long-term support agreements. Its Custom PC Services
business unit provides on-site and depot repair and logistics services for
personal computers and peripheral devices to PC manufacturers, retailers and
extended-warranty providers. The Company's principal executive offices are
located at 5741 Rio Vista Drive, Clearwater, Florida 33760. The telephone number
of the Company at such offices is (727) 533-3600.
Financial Information. Set forth below are certain selected consolidated
financial data for the Company's last three fiscal years, which were derived
from the 1998 Annual Report and the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 filed by the Company with the Commission.
More comprehensive financial information is included in the reports (including
management's discussion and analysis of financial condition and results of
operations) and other documents filed by the Company with the Commission, and
the following financial data is qualified in its entirety by reference to such
reports and other documents including the financial information and related
notes contained therein. Such reports and other documents may be examined and
copies thereof may be obtained from the offices of the Commission and the Nasdaq
National Market in the manner set forth below.
TECHFORCE CORPORATION
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
-----------------------------------------
1998 1997 1996
----------- ----------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
INCOME STATEMENT DATA
Total revenues......................................... $ 74,004 $ 64,915 $ 63,273
(Loss) income before benefit (provision) for income
taxes................................................ (1,526) 4,124 3,635
Benefit (provision) for income taxes................... 548 (1,460) (1,312)
Net (loss) income...................................... (978) 2,664 2,323
Basic (loss) earnings per common share................. (0.12) 0.33 0.29
Weighted average number of common shares outstanding... 8,190,437 8,067,646 7,931,554
BALANCE SHEET DATA
Total assets........................................... $ 49,086 $ 50,674 $ 46,483
Total liabilities...................................... 18,023 19,180 17,989
Total stockholders' equity............................. 31,063 31,494 28,494
</TABLE>
The Shares are registered under the Exchange Act. Accordingly, the Company
is subject to the informational filing requirements of the Exchange Act and in
accordance therewith is obligated to file periodic reports, proxy statements and
other information with the Commission relating to its business, financial
condition and other matters. Information as of particular dates concerning the
Company's directors and officers, their remuneration, options granted to them,
the principal holders of the Company's securities and any material interest of
such persons in transactions with the Company is required to be disclosed in
such
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<PAGE> 13
proxy statements and distributed to the Company's stockholders and filed with
the Commission. Such reports, proxy statements and other information should be
available for inspection at the public reference facilities of the Commission
located in Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
should also be available for inspection and copying at prescribed rates at the
regional offices of the Commission located at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, Suite
1300, New York, New York 10048. Such reports, proxy statements and other
information may also be obtained at the Web site that the Commission maintains
at http://www.sec.gov. Copies of this material may also be obtained by mail upon
payment of the Commission's customary fees, from the Commission's principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, such
material should also be available for inspection at the library of Nasdaq Stock
Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006. Except as otherwise
noted in this Offer to Purchase, all of the information with respect to the
Company set forth in this Offer to Purchase has been furnished by the Company or
derived from publicly available information.
8. CERTAIN INFORMATION CONCERNING THE PURCHASER, THE PARENT AND THE
ULTIMATE PARENT. The Purchaser, a Delaware corporation and a wholly owned
subsidiary of the Parent, was organized in connection with the Offer and has not
carried on any activities to date other than those incident to its formation and
the commencement of the Offer.
The Ultimate Parent, a company organized on March 3, 1995 under the laws of
The Netherlands, has its World Headquarters at 21-23 Gatwickstraat, 1043 GL
Amsterdam, Sloterdijk, The Netherlands and has approximately 2,650 employees
based in over 50 countries. The telephone number for the Ultimate Parent is
(31)-20-581-8383.
The Parent, a Delaware corporation incorporated on February 28, 1996, has
its corporate headquarters at 3100 Cumberland Circle, 12th Floor, Atlanta,
Georgia and has no employees in the United States. The telephone number for the
Parent is (770) 612-4700. The address and telephone number for the Purchaser is
the same as that for the Parent.
The Ultimate Parent, with 1998 sales of approximately $723.7 million, is an
enterprise engaged directly and through its subsidiaries in the provision of
seamless international data network services to multinational businesses.
The name, citizenship, business address, principal occupation or employment
and five-year employment history of each of the directors and executive officers
of the Purchaser, the Parent and the Ultimate Parent and certain other
information are set forth in Schedule I hereto.
Set forth below are certain selected consolidated financial data relating
to the Ultimate Parent and its subsidiaries for the Ultimate Parent's last three
fiscal years which have been derived from the financial statements (prepared in
accordance with United States generally accepted accounting principles)
contained in the Ultimate Parent's Annual Report on Form 20-F for the fiscal
year ended December 31, 1998 filed by the Ultimate Parent with the Commission.
More comprehensive financial information is included in the reports (including
management's discussion and analysis of financial condition and results of
operations) and other documents filed by the Ultimate Parent with the
Commission, and the following financial data is qualified in its entirety by
reference to such reports and other documents, including the financial
information and related notes contained therein. Such reports and other
documents may be examined and copies thereof may be obtained from the offices of
the Commission and the New York Stock Exchange (the "NYSE") in the manner set
forth below.
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<PAGE> 14
EQUANT N.V.
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
-------------------------------
1998 1997 1996
--------- ------- -------
(IN MILLIONS)
<S> <C> <C> <C>
INCOME STATEMENT DATA
Revenues.................................................... $ 723.7 $529.1 $388.7
(Loss) before income taxes, minority interests and
extraordinary item........................................ (33.2) (27.7) (30.5)
(Provision) benefit for income taxes........................ (1.6) 6.4 (.8)
(Loss) before extraordinary item............................ (35.4) (21.4) (31.7)
Net (loss).................................................. (43.4) (21.4) (31.7)
BALANCE SHEET DATA
Total assets................................................ $1,110.7 $503.4 $327.0
Total liabilities........................................... 275.5 384.5 173.8
Shareholders' equity........................................ 835.2 118.9 153.2
</TABLE>
The Ultimate Parent is subject to the informational filing requirements of
the Exchange Act and in accordance therewith is obligated to file periodic
reports, proxy statements and other information with the Commission relating to
its business, financial condition and other matters. Information as of
particular dates concerning the Ultimate Parent's securities and any material
interest of such persons in transactions with the Ultimate Parent is required to
be disclosed in such proxy statements and distributed to the Ultimate Parent's
stockholders and filed with the Commission. Such reports, proxy statements and
other information should be available for inspection at the public reference
facilities of the Commission located in Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and should also be available for inspection and copying
at prescribed rates at the regional offices of the Commission located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661,
and Seven World Trade Center, Suite 1300, New York, New York 10048. Such
reports, proxy statements and other information may also be obtained at the Web
site that the Commission maintains at http://www.sec.gov. Copies of this
material may also be obtained by mail upon payment of the Commission's customary
fees, from the Commission's principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such material is also available for inspection at the
offices of the NYSE at 20 Broad Street, New York, New York 10005.
None of the Purchaser, the Parent, the Ultimate Parent nor, to the best
knowledge of the Purchaser, the Parent or the Ultimate Parent, any of the
persons listed on Schedule I hereto or any associate or majority owned
subsidiary of the Purchaser, the Parent, the Ultimate Parent or any of the
persons so listed, beneficially owns or has a right to acquire directly or
indirectly any Shares, and none of the Purchaser, the Parent, the Ultimate
Parent nor, to the best knowledge of the Purchaser, the Parent or the Ultimate
Parent, any of the persons or entities referred to above, or any of the
respective executive officers, directors or subsidiaries of any of the
foregoing, has effected any transactions in the Shares during the past 60 days.
9. SOURCE AND AMOUNT OF FUNDS. The total amount of funds required by the
Purchaser to purchase all outstanding Shares pursuant to the Offer and to pay
fees and expenses related to the Offer and the proposed Merger is estimated to
be approximately $76.0 million. The Purchaser plans to obtain all funds needed
for the Offer and the Merger through loans which will be made by the Ultimate
Parent to the Parent and, in turn, by the Parent to the Purchaser. The Ultimate
Parent plans to fund the loan using funds it has available in its cash accounts
representing a portion of the proceeds from the Ultimate Parent's public
offering of shares of its common stock in July 1998. The loan from the Ultimate
Parent to the Parent and the loan from the Parent to the Purchaser will each be
represented by one or more promissory notes payable on demand in the aggregate
principal amount of $73.4 million. Each of the promissory notes will accrue
interest on the aggregate principal amount thereof at an annual rate of LIBOR
plus 1.60%. For purposes of the promissory notes and the loans
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<PAGE> 15
evidenced thereby, "LIBOR" shall mean, with respect to any interest accrual
period applicable to the promissory notes:
(a) the rate per annum of the offered quotation for deposits in United
States dollars for a period equal or comparable to its Interest Period
which appears on Telerate Page 3750 or Telerate Page 3740 or Reuters Screen
Page LIBOR01 (as appropriate) at or about 12:00 noon (showing the rate at
11:00 a.m.), London time, on the applicable Rate Fixing Day;
(b) if no such offered quotation appears, the arithmetic mean (rounded
to the nearest four decimal places) of the offered quotations for deposits
in United States dollars for a period equal or comparable to its Interest
Period which appear on the relevant Page (if any) of the Reuters Screen on
or about 11:00 a.m. on the applicable Rate Fixing Date.
For the purpose of this definition, "Telerate Page 3750" or "Telerate 3740"
means the display designated as "Page 3750" or "Page 3740" on the Telerate
Service (or such other page as may replace Page 3750 or 3740 on that service) or
such other service as may be nominated by the British Bankers' Association (BBA)
as the information vendor for the purpose of displaying the BBA Interest
Settlement Rate.
THE OFFER IS NOT CONDITIONED ON OBTAINING FINANCING.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY. For more than one
year prior to the Offer, Equant Integration Services, Inc., a New York
corporation ("EIS") and an affiliate of the Parent, and the Company have
maintained a business relationship. During such period, the Company served as a
subcontractor in the normal course of EIS's business.
In March 1998, EIS contacted the Company to explore the possibility of a
strategic transaction involving the Company and EIS. In order to pursue
discussions, the Company provided EIS with a Confidentiality Agreement on or
about June 18, 1998, which was executed by EIS on July 13, 1998, and the Company
provided to EIS a confidential memorandum and other materials regarding the
Company and its operations.
On July 14, 1998, representatives of EIS visited the Company's management
to discuss the potential transaction and visit the Company's primary facilities.
Thereafter, representatives of EIS performed additional due diligence and
attended various meetings with members of the Company's management and the
Company provided EIS with certain materials describing the Company, its
operations and projected results of operations.
On November 2, 1998, EIS submitted to the Company a non-binding proposal
for the Company's assets used in connection with the business conducted by the
Company's Network Services, Integrated Network Services and Hardware Sales
divisions, but excluding the Company's PC Services business, for $29 million.
The Company was given 30 days in which to respond to the offer. On November 24,
1998, EIS revised its proposal to exclude the Company's equipment leases as well
as its PC Services Business. No agreement was ever reached.
On March 17, 1999, EIS again approached the Company to discuss the
possibility of a transaction. From March 26 to March 30, EIS visited the
Company's management at the Company's facilities to discuss a transaction.
On May 11, 1999, EIS and the Company, through their respective advisors,
met and discussed a possible price for the purchase of all of the Company's
Shares outstanding. On May 12, 1999, EIS and the Company agreed to a purchase
price of $8.50 per Share of Common Stock, in cash, for all outstanding Shares of
the Company. On May 14, 1999 a Summary of Terms was drafted incorporating the
purchase price per Share. Members of the Company's Board approved this Summary
of Terms in May 1999. On May 18, 1999, the Confidentiality Agreement originally
dated June 8, 1998, was amended and extended, and EIS and the Company
subsequently executed an Exclusivity Agreement pursuant to which the Company
agreed not to solicit from, or discuss with, third parties an alternative
transaction involving the Company, including an offer for its Shares.
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Between May 24 and June 9, EIS and its accounting and legal advisors
conducted additional due diligence on the Company. EIS, the Company and their
respective legal and financial advisors worked to resolve outstanding business
and due diligence issues while simultaneously negotiating the terms of the
Merger Agreement from May 24 through June 30.
The Merger Agreement and the related transactions, including the Offer,
were approved by the Boards of Directors of the Parent and the Company and
executed by the parties on June 30, 1999. The Parent and the Company issued a
press release announcing the execution of the Merger Agreement and the
transactions contemplated thereby prior to the opening of business, New York
time, on June 30, 1999. Concurrently with the execution of the Merger Agreement,
certain shareholders of the Company delivered a letter to the Parent in which
they agreed to tender all of their Shares in the Offer and vote in favor of the
Merger.
11. THE MERGER AGREEMENT. The following is a summary of the Merger
Agreement and certain related agreements, which summary is qualified in its
entirety by reference to the Merger Agreement and such agreements which are
filed as exhibits to the Tender Offer Statement on Schedule 14D-1.
The Offer. The Merger Agreement provides that Purchaser shall commence the
Offer, unless termination of the Merger Agreement occurs pursuant to certain
applicable termination provisions of the Merger Agreement or termination due to
a material failure to satisfy any of the conditions set forth under the heading
"Certain Conditions of the Offer" below (the "Conditions to the Offer"), as
promptly as practicable, but in no event later than five (5) business days
following the public announcement of the terms of the Merger Agreement.
The obligation of Purchaser to accept for payment and pay for Shares
tendered pursuant to the Offer shall be subject to the condition that a number
of Shares representing not less than a majority of the outstanding Shares shall
have been validly tendered and not withdrawn prior to the Expiration Date (as
defined below) of the Offer (the "Minimum Condition"), and further there shall
have been no material failure to satisfy any of the Conditions to the Offer. The
Per Share Amount (as defined below) payable in the Offer shall be paid net to
the tendering stockholders in cash, without interest thereon, upon the terms and
subject to the conditions of the Offer. There shall not be deductible from the
Per Share Amount any expenses or costs of Ultimate Parent, Parent or Purchaser
associated with the transaction contemplated by the Merger Agreement or
otherwise. Purchaser expressly reserves the right in its sole discretion to
waive, in whole or in part, at any time or from time to time, any condition to
the Offer (other than the Minimum Condition), to increase the price per Share
payable in the Offer or to make any other changes in the terms and conditions of
the Offer; provided that, unless previously approved by the Company in writing,
no change may be made which: (a) decreases the Per Share Amount, (b) changes the
Minimum Condition, (c) changes the form of consideration payable in the Offer,
(d) reduces the number of Shares to be purchased in the Offer, (e) imposes
conditions to the Offer in addition to those set forth in the Conditions to the
Offer or extends the Offer beyond the Outside Date (as defined under the heading
"Termination" below). The Offer shall be scheduled to expire as of the end of
the 20th day following the commencement of the Offer, subject to any extensions
thereof permitted in the Merger Agreement (the "Expiration Date"). If the
Minimum Condition is satisfied and the Conditions to the Offer are satisfied in
all material respects or waived by Purchaser as of the Expiration Date, then
Purchaser shall promptly accept and pay for all Shares validly tendered and not
properly withdrawn pursuant to the Offer (the "Tender Closing"); provided, that
if the Minimum Condition is satisfied and the other Conditions to the Offer are
satisfied in all material respects or waived by Purchaser as of the Expiration
Date but fewer than 90% of the outstanding Shares have been validly tendered and
not properly withdrawn at such time, then Purchaser may, on more than one
occasion, extend the Expiration Date for a period of ten (10) business days but
not beyond the Outside Date. Unless the Merger Agreement has been terminated
pursuant to its terms and conditions, if the Minimum Condition has not been
satisfied or the Conditions to the Offer have not been satisfied in all material
respects or waived by Purchaser as of the Expiration Date (including any
extensions thereof), then Purchaser shall extend the Offer for an additional
period of not less than five (5) business days and not more than twenty (20)
business days; provided, that Purchaser shall not be required to extend the
Offer beyond the Outside Date.
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The Merger Agreement provides that, upon the terms and subject to the
conditions thereof, each of the parties thereto shall take, or cause to be
taken, all appropriate action, and do or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by the Merger Agreement, as soon as
practicable on the date of commencement of the Offer, including but not limited
to, cooperation in the preparation and filing of the Offer Documents (as defined
in the Merger Agreement) and Schedule 14D-9(as defined in the Merger Agreement).
Company Action. The Merger Agreement provides that, the Company approves
of and consents to the Offer, and represents and warrants that the Board, at a
meeting duly called and held on June 28, 1999, unanimously (i) determined that
the Merger Agreement and the transactions contemplated thereby, including the
Offer and the Merger, are fair to, and in the best interests of, the
stockholders of the Company, (ii) approved the Merger Agreement and the
transactions contemplated thereby, and (iii) resolved to recommend that the
stockholders of the Company accept the Offer, tender their Shares thereunder to
Purchaser and, if required by applicable law, approve and adopt the Merger
Agreement and the Merger. The Company's fairness opinion has been authorized to
be included in the Offer Documents, the Schedule 14D-9 and the Proxy Statement
(as defined below).
The Merger. The Merger Agreement provides that, subject to the
satisfaction or waiver of the conditions set forth under the heading "Conditions
to the Merger" below, at the Effective Time (as defined below) and upon the
terms and subject to the conditions of the Merger Agreement, the GBCC and the
DGCL, the Purchaser shall be merged with and into the Company whereupon the
separate corporate existence of the Purchaser shall cease and the Company shall
continue as the surviving corporation (the "Surviving Corporation").The name of
the Surviving Corporation shall be changed to "Equant Integration Services,
Inc." upon the closing of the Merger transaction. At the Purchaser's option, the
Merger may be structured so that (i) the Company is merged with and into the
Parent, the Purchaser or any other direct or indirect subsidiary of the Parent
or (ii) any direct or indirect subsidiary of the Parent is merged with and into
the Company. In the event of such election, the parties to the Merger Agreement
have agreed to execute an appropriate amendment to the Merger Agreement in order
to reflect such election.
As soon as practicable after the satisfaction or waiver of the Conditions
to the Merger set forth below, the parties will file articles of merger or
certificates of merger with the Secretary of State of the State of Georgia and
the Secretary of State of the State of Delaware and make all other filings or
recordings required by the GBCC and the DGCL in connection with the Merger. The
Merger shall become effective at such time as articles of merger or a
certificate of merger are duly filed with the Secretary of State of the State of
Georgia (the "Georgia Filing") and articles of merger or a certificate of
ownership and merger are duly filed with the Secretary of State of the State of
Delaware (the "Delaware Filing") or at such later time as is specified in the
Georgia Filing and the Delaware Filing (the "Effective Time").
The Merger shall have the effects set forth in the GBCC and the DGCL and,
at the Effective Time, all the properties, rights, privileges, powers and
franchises of the Company and the Purchaser shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and the
Purchaser shall become the debts, liabilities and duties of the Surviving
Corporation.
The Articles of Incorporation and Bylaws of the Company in effect
immediately prior to the Effective Time shall be the Articles of Incorporation
of the Surviving Corporation until amended in accordance with applicable law.
The directors of the Purchaser at the Effective Time shall be the initial
directors of the Surviving Corporation, each to hold office in accordance with
the Articles of Incorporation and Bylaws of the Surviving Corporation and until
his or her successor is duly elected and qualified. The officers of the Company
at the Effective Time, and any additional individuals designated by the Parent,
shall be the initial officers of the Surviving Corporation, each to hold office
in accordance with the Articles of Incorporation and Bylaws of the Surviving
Corporation and until his or her successor is duly appointed and qualified.
The Merger Agreement provides that at the Effective Time, without any
action on the part of the Ultimate Parent, the Parent, the Purchaser, the
Company or the holder of any of the following securities: (1) each share of
Common Stock of the Company issued and outstanding immediately prior to the
Effective Time (other than shares to be canceled pursuant to the terms of the
Merger Agreement and Dissenting Shares
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(as defined below) shall by virtue of the Merger be canceled and extinguished
and be converted into the right to receive an amount in cash equal to $8.50 (the
"Per Share Amount"); (2) each share issued and outstanding immediately prior to
the Effective Time and owned by the Ultimate Parent, the Parent or the Purchaser
or any direct or indirect subsidiary of the Parent or the Purchaser, or which is
held in the treasury of the Company or any of its subsidiaries, shall be
canceled and retired and no payment of any consideration shall be made with
respect thereto, or (3) each share of Common Stock, par value $0.01 per share,
of the Purchaser issued and outstanding immediately prior to the Effective Time
shall be converted into and become one validly issued, fully paid and
non-assessable share of Common Stock, of the Surviving Corporation.
Stock Options. The Merger Agreement provides that, immediately prior to
the Effective Time, the Company shall cause each option to purchase Shares under
the TechForce Corporation 1994 Incentive Stock Option Plan ("1994 Options") that
is outstanding but unvested to become fully vested and exercisable pursuant to
the terms and conditions of such plan (the "1994 Plan"). At the time of
commencement of the Offer, the Company shall provide an option election form to
all holders of 1994 Options. Each holder of a 1994 Option shall be permitted to
exercise such 1994 Option, with such exercise to be effective no later than
immediately prior to the Effective Time. The Company shall take all actions
necessary under the 1994 Plan to cause all 1994 Options which have not been
exercised prior to the Effective Time to terminate as of the Effective Time
without any payment thereon.
Immediately prior to the Effective Time, each outstanding option to
purchase Shares ("1995 Options") under the TechForce Corporation 1995 Stock
Incentive Plan ("1995 Options") whether or not then vested and exercisable,
shall be canceled by the Company pursuant to the terms and conditions of such
plan, upon which cancellation each holder of a 1995 Option shall be entitled to
receive from the Company an amount in cash less applicable withholding taxes
equal to the product of (i) the number of Shares previously subject to such 1995
Option and (ii) the excess, if any, of the Per Share Amount over the exercise
price per share pursuant to such 1995 Option.
The Surviving Corporation shall not issue any substitute options under the
TechForce Corporation 1995 Outside Directors Stock Option Plan (the "Director
Plan"). Accordingly, immediately prior to the Effective Time, each outstanding
option to purchase shares ("Director Options") issued pursuant to the Director
Plan, whether or not then vested and exercisable, shall terminate in accordance
with the terms and conditions of such plan, upon which termination each holder
of a Director Option shall be entitled to receive from the Company an amount in
cash less applicable withholding taxes equal to the product of (i) the number of
Shares previously subject to such Director Option and (ii) the excess, if any,
of the Per Share Amount over the exercise price per Share pursuant to such
Director Option.
The Company shall cause the TechForce Corporation Amended and Restated
Employee Stock Purchase Plan (the "ESPP") to be suspended (and inoperative) as
of the date hereof until the Effective Time or the date the Merger Agreement is
terminated, whichever occurs first, as set forth in the Merger Agreement.
Pursuant to Section 11(b) of the ESPP, each participant in the ESPP shall be
entitled to receive after the Closing an amount in cash equal to the net amount
which such participant would have received if the total amount of payroll
deductions accumulated in such participant's account under the ESPP up to the
date of termination had been used to exercise the option to purchase Shares
under the ESPP on such date and the Shares so purchased had been sold to the
Company at the Per Share Amount.
The Merger Agreement also provides that, prior to the consummation of the
Offer, the Board (or, if appropriate, any committee thereof) shall adopt such
resolutions or take such other actions as are required to ensure that, following
the Effective Time, no participant in any stock, stock option, stock
appreciation or other benefit plan of the Company or any of its subsidiaries
shall have any right thereunder to acquire any capital stock of the Surviving
Corporation or any affiliate thereof.
Stockholders' Meeting. If approval by the Company's stockholders is
required by applicable law to consummate the Merger, the Company, acting through
the Board, shall as soon as practicable following the consummation of the Offer
(A) establish and give any required notice of a record date for the taking of
action by written consent or duly call, give notice of, convene and hold an
annual or special meeting of its stockholders for the purpose of considering and
taking action upon the Merger Agreement and the Merger,
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(B) include in the proxy statement with respect to such stockholder's meeting
(the "Proxy Statement") the recommendation of the Board of Directors of the
Company that stockholders of the Company vote in favor of the approval and
adoption of the Merger Agreement and the transactions contemplated thereby and
(C) use its best efforts: (i) 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 Securities and Exchange 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 consummation of the Offer and (ii) to obtain the
necessary approvals by its stockholders of the Merger Agreement and the
transactions contemplated thereby.
At such meeting, Parent and Purchaser will vote or cause to be voted all
Shares beneficially owned by them in favor of the Merger Agreement and the
transactions contemplated thereby.
Appointment of Directors. Promptly after the Tender Closing through the
consummation of the Stockholder's Meeting, Parent shall have the right to
appoint to the Company's Board of Directors a number of directors so that the
number of such appointed directors reflects ( as closely as practicable) the
percentage of the Company's outstanding common stock owned by Acquisition
immediately after the Tender Closing, provided, that such appointment of
directors shall comply in all respects with Section 14(f) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Regulation 14f-1
thereunder.
Dissenting Shares. Notwithstanding anything in the Merger Agreement to the
contrary, Shares outstanding immediately prior to the Effective Time and held by
a holder who has not voted in favor of the Merger or consented thereto in
writing and who has demanded appraisal for such Shares in accordance with the
GBCC ("Dissenting Shares") shall not be converted into a right to receive the
Per Share Amount, unless such holder fails to perfect or withdraws or otherwise
loses his, her or its right to appraisal. If, after the Effective Time, such
holder fails to perfect or withdraws or loses his, her or its right to
appraisal, such Shares shall be treated as if they had been converted as of the
Effective Time into a right to receive the Per Share Amount, without interest
thereon. The Company shall give the Parent prompt notice of any demands received
by the Company for appraisal of Shares, and, prior to the Effective Time, the
Parent shall have the right to participate in all negotiations and proceedings
with respect to such demands. Prior to the Effective Time, the Company shall
not, except with the prior written consent of the Parent, make any payment with
respect to, or settle or offer to settle, any such demands.
Exchange of Certificates. The Merger Agreement provides that from and
after the Effective Time, a bank or trust company as the Surviving Corporation
and the Parent shall mutually determine, (the "Depositary") shall act as
Depositary in effecting the payment of the Per Share Amount upon surrender of
certificates (the "Certificates") that, prior to the Effective Time, represented
Shares. Upon the surrender of each such Certificate formerly representing
Shares, the Depositary shall pay the holder of such Certificate the Per Share
Amount multiplied by the number of Shares formerly represented by such
Certificate, in exchange therefor, and such Certificate shall forthwith be
canceled. Until so surrendered and exchanged, each such Certificate (other than
Certificates representing Dissenting Shares or Shares held by the Parent, the
Purchaser or the Company, or any direct or indirect Subsidiary thereof) shall
represent solely the right to receive the Per Share Amount. No interest shall be
paid or accrue on the Per Share Amount. If the Per Share Amount (or any portion
thereof) is to be delivered to any person other than the person in whose name
the Certificate formerly representing Shares surrendered in exchange therefor is
registered, it shall be a condition to such exchange that the Certificate so
surrendered shall be properly endorsed or otherwise be in proper form for
transfer and that the person requesting such exchange shall pay to the
Depositary any transfer or other taxes required by reason of the payment of the
Per Share Amount to a person other than the registered holder of the Certificate
surrendered, or shall establish to the satisfaction of the Depositary that such
tax has been paid or is not applicable.
When and as needed, the Parent or the Surviving Corporation shall deposit,
or cause to be deposited, in trust with the Depositary the Per Share Amount to
which holders of Shares shall be entitled at the Effective Time pursuant to the
terms and conditions of the Merger Agreement.
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The Per Share Amount shall be invested for the benefit of the Parent by the
Depositary, as directed by the Parent, provided such investments shall be
limited to direct obligations of the United States of America, obligations for
which the full faith and credit of the United States of America is pledged to
provide for the payment of principal and interest, commercial paper rated of the
highest quality by Moody's Investors Services, Inc. or Standard & Poor's
Corporation, or certificates of deposit issued by a commercial bank having at
least $1,000,000,000 in assets.
Promptly following the date which is six (6) months after the Effective
Time, the Parent shall cause the Depositary to deliver to the Surviving
Corporation all cash and documents in its possession relating to the
transactions described in the Merger Agreement, and the Depositary's duties
(which shall be defined in a "Depositary Agreement" to be entered into between
the Parent, the Purchaser and the Depositary) shall terminate. Thereafter, each
holder of a Certificate formerly representing a Share may surrender such
Certificate to the Surviving Corporation and (subject to applicable abandoned
property, escheat and similar laws) receive in exchange therefor the Per Share
Amount, without any interest thereon. After such termination of the Depositary's
duties under the Depositary Agreement, the Parent shall assure that the
Surviving Corporation has sufficient funds to pay the Per Share Amount when and
as needed and shall cause the Surviving Corporation to pay the Per Share Amount
to holders of Certificates formerly representing Shares upon the proper
surrender of such Certificates for payment.
Promptly after the Effective Time and in connection with the Merger, the
Parent shall cause the Depositary to mail to each record holder of Certificates
that immediately prior to the Effective Time represented Shares a form of letter
of transmittal and instructions for use in surrendering such Certificates and
receiving the Per Share Amount in exchange therefor.
After the close of business on the day prior to the date of the Effective
Time, there shall be no transfers on the stock transfer books of the Surviving
Corporation of any Shares. If, after the Effective Time, Certificates formerly
representing Shares are presented to the Surviving Corporation or the
Depositary, they shall be canceled and exchanged for the Per Share Amount, as
provided in the Merger Agreement, subject to applicable law in the case of
Dissenting Shares.
Employee Benefits Matters. The Merger Agreement provides that each Plan
(as defined in the Merger Agreement) complies and has been operated and
administered in form and operation in all material respects in accordance with
its terms and applicable law, including but not limited to ERISA (as defined in
the Merger Agreement) and the Code (as defined in the Merger Agreement), and no
event has occurred which will or could cause any Plan to fail to materially
comply with such requirements and no notice has been issued by any governmental
authority questioning or challenging such compliance. Except as provided in the
Merger Agreement, the consummation of the transactions contemplated by the
Merger Agreement will not (either alone or upon the occurrence of any additional
or subsequent event presently contemplated by the Company) (i) entitle any
current or former employee or officer of the Company or any ERISA Affiliate to
severance pay, unemployment compensation or any other payment, except as
expressly provided in the Merger Agreement, or (ii) accelerate the time of
payment or vesting, or increase the amount, of compensation due any such
employee or officer. Except as set forth in the Merger Agreement, no Plan
provides benefits, including, without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees of the
Company or any ERISA Affiliate beyond their retirement or other termination of
service (other than (i) coverage mandated by applicable law, or (ii) death
benefits or retirement benefits under any employee pension benefit plan). The
Merger Agreement provides that there are no pending (or, to the knowledge of the
Company, threatened or anticipated) material claims by, on behalf of, or against
any Plan, by any employee or beneficiary covered under any such Plan, or
otherwise involving any such Plan (other than routine claims for benefits) and
that the Company has the right to amend or terminate any Plan.
Representation and Warranties. The Merger Agreement contains various
customary representations and warranties of the parties thereto including,
without limitation, representations and warranties by the Company as to the
Company's capitalization, authority, the absence of any required filings and
consents, the absence of conflicts with charter documents, contracts and
Significant Agreements (as defined in the Merger Agreement), SEC filings and
financial statements, absence of certain changes or events, derivatives,
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schedule 14D-9, offer documents, proxy statement, business, compliance with law,
the absence of litigation, brokers, taxes, employee benefit plans, the filing
and compliance of reports with the requirements of the Securities and Exchange
Commission, environmental matters, intellectual property, insurance, title to
properties, labor matters, voting requirements, state takeover laws, codes,
policies, year 2000 compliance, U.K. operations and disclosure schedules.
Conduct of Business of the Company. Except as otherwise expressly provided
in the Merger Agreement, during the period from the date thereof to the time the
directors are appointed, the Company and its subsidiaries will each conduct its
operations in the ordinary course of business consistent with past practice, and
the Company and its subsidiaries, taken as a whole, will each use its reasonable
best efforts to preserve intact, in all respects material to the Company, its
business organization, to keep available, in all respects material to the
Company and its subsidiaries, the services of its officers and employees and to
maintain, in all respects material to the Company, existing relationships with
licensors, licensees, suppliers, contractors, distributors, customers and others
having business relationships with it. The term "Consent" shall mean the consent
(written or verbal) of any authorized officer of Parent, which (x) shall not be
unreasonably withheld or delayed, and (y) shall be either granted or withheld
within twenty-four (24) hours of receiving the Company's written or verbal
request (provided, that Parent's failure to respond within such period shall
constitute Consent to the requested action). Without limiting the generality of
the foregoing, and except as otherwise expressly provided in the Merger
Agreement or as required by law, prior to the Tender Closing, neither the
Company nor any of its subsidiaries will, without the prior written consent of
Parent: (1) amend or propose to amend its Articles of Incorporation or Bylaws or
equivalent organizational documents, or increase or propose to increase the
number of directors of the Company; (2) authorize for issuance, issue, sell,
deliver or agree or commit to issue, sell or deliver (whether through the
issuance or granting of options, warrants, commitments, subscriptions, rights to
purchase or otherwise) any Company securities or securities of any of its
Subsidiaries, stock of any class or any other securities or equity equivalents
(including, without limitation, stock appreciation rights of the Company or any
of its Subsidiaries), except as required by option agreements in effect as of
the date thereof, or amend any of the terms of any such securities or agreements
outstanding as of the date thereof; (3) split, combine or reclassify any shares
of its capital stock or the capital stock of its Subsidiaries, 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 redeem,
repurchase or otherwise acquire any of its securities or any securities of its
subsidiaries; (4) without Consent, (a) incur any indebtedness for borrowed money
or issue any debt securities or, assume, guarantee or endorse the obligations of
any other person, in excess of $200,000; (b) make any loans, advances or capital
contributions to, or investments in, any other person (other than to wholly
owned subsidiaries of the Company); (c) pledge or otherwise encumber shares of
capital stock of the Company or any of its subsidiaries; or (d) mortgage or
pledge any of its assets, tangible or intangible, or create or suffer to exist
any Lien (as defined in the Merger Agreement) thereupon; (5) without Consent,
enter into, adopt or (except as may be required by law) amend or terminate any
bonus, profit sharing, compensation, severance, termination, stock option, stock
appreciation right, restricted stock, performance unit, stock equivalent, stock
purchase, pension, retirement, deferred compensation, employment, severance or
other employee benefit agreement, trust, plan, fund or other arrangement for the
benefit or welfare of any director, officer or employee, or (except, in the case
of employees who are not officers or directors, for normal compensation
increases in the ordinary course of business consistent with past practice that,
(x) in the aggregate, do not result in a material increase in benefits or
compensation expense to the Company, and (y) are pursuant to Consent) increase
in any manner the compensation or benefits of any director, officer or employee
or pay any benefit not required by any plan or arrangement as in effect as of
the date thereof (including, without limitation, the granting of stock options,
restricted stock, stock appreciation rights or performance units); (6) except
upon Consent, acquire, sell, lease, encumber, transfer or dispose of any assets
outside the ordinary course of business consistent with past practice or any
assets which in the aggregate are material to the Company and its subsidiaries,
taken as a whole, except upon Consent, or enter into, modify, amend or terminate
any material contract, agreement, commitment or transaction except that the
Company may continue to engage in the activity of selling equipment leases; (7)
except as may be required as a result of a change in law or in generally
accepted accounting principles, change any of the accounting principles or
practices used by it; (8)(a) acquire (by merger, consolidation, or acquisition
of stock
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or assets) any corporation, partnership or other business organization or
division thereof; (b) except as set forth in the Merger Agreement, without
Consent authorize any new capital expenditure or expenditures which,
individually, is in excess of $50,000 or, in the aggregate, are in excess of
$200,000; or (c) enter into or amend any contract, agreement, commitment or
arrangement with respect to any of the foregoing; (9) make any tax election or
settle or compromise any material Tax liability; (10) pay, discharge or satisfy
any claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise in excess of $200,000 in the aggregate),
other than the payment, discharge or satisfaction upon Consent and in the
ordinary course of business consistent with past practice or in accordance with
their terms, of liabilities reflected or reserved against in the consolidated
financial statements (or the notes thereto) of the Company and its consolidated
subsidiaries or incurred in the ordinary course of business consistent with past
practice (provided, that payment of trade payables in the ordinary course of
business shall not require Consent or otherwise be restricted hereunder); (11)
except in the ordinary course of business consistent with past practice,
terminate, modify, amend or waive compliance with any provision of, any of the
Significant Agreements, or fail to take any action necessary to preserve the
benefits of any Significant Agreement to the Company or any of its subsidiaries;
(12) enter into any agreement providing for the acceleration of payment or
performance or other consequence as a result of the transactions contemplated by
the Merger Agreement or any other change in control of the Company; or (13)
except in the ordinary course of business consistent with past practice in
connection with the sale of equipment or upon Consent, enter into any agreement
providing for any license, sale or assignment of or otherwise transfer any
Intellectual Property Rights (as defined in the Merger Agreement) or grant any
covenant not to sue with respect to any of its Intellectual Property Rights or
otherwise.
Consents. From the date of the Merger Agreement through the Tender
Closing, the Company agreed to exert commercially reasonable efforts to notify
or secure the consent of certain entities as required pursuant to their
respective contracts with the Company.
Access to Information. Pursuant to the Merger Agreement and applicable
law, between the date thereof and the Effective Time, the Company will give each
of Ultimate Parent, Parent and Purchaser and their counsel, financial advisors,
auditors, and other authorized representatives reasonable access to all
employees, plants, offices and other facilities and to all books and records of
the Company and its subsidiaries, will permit each of Ultimate Parent, Parent
and Purchaser and their respective counsel, advisors, auditors and other
authorized representatives to make such inspections as Ultimate Parent, Parent
or Purchaser may reasonably require and will cause the Company's officers or
representatives and those of its subsidiaries to furnish as soon as reasonably
practicable to Ultimate Parent, Parent or Purchaser or their representatives
such financial and operating data and other information with respect to the
business and properties of the Company and any of its subsidiaries as Ultimate
Parent, Parent or Purchaser may from time to time reasonably request. Subject to
the terms and conditions of the Merger Agreement, no investigation shall affect
any representations or warranties of the parties therein or the conditions to
the obligations of the parties.
The Merger Agreement also provides that the confidentiality agreement dated
June 18, 1998, as amended on May 18, 1999 (the "Confidentiality Agreement"),
between the Company and Parent shall remain in full force and effect in
accordance with its terms except that, notwithstanding any provision of the
Confidentiality Agreement, Parent and Purchaser may (i) enter into the Merger
Agreement, (ii) acquire Shares pursuant to the Offer and the Merger, (iii) make
any further proposals, consummate any further transactions involving the Company
or its stockholders or take any other actions respecting the Company, the Shares
or any stockholder of the Company, and (iv) make such disclosures in connection
with the Offer, the Offer Documents or the matters set forth in (iii) above as
Parent and Purchaser may determine in their reasonable discretion to be
necessary or appropriate.
Reasonable Best Efforts. Subject to the terms and conditions of the Merger
Agreement, each of the parties thereto agrees to use its reasonable best efforts
to timely take, or cause to be taken, all actions, and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions contemplated
by the Merger Agreement. Without limiting the generality of the foregoing,
Ultimate Parent, Parent, Purchaser and the Company shall cooperate with one
another (i) in the preparation and filing of the Offer Documents, the Schedule
14D-9, the
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Proxy Statement and any required filings under the HSR Act and the other laws
referred to in the Merger Agreement; (ii) in determining whether action by or in
respect of, or filing with, any governmental body, agency, official or authority
(either domestic or foreign) is required, proper or advisable or any actions,
consents, waivers or approvals are required to be obtained from parties to any
contracts, in connection with the transactions contemplated by the Merger
Agreement; and (iii) in seeking timely to obtain any such actions, consents and
waivers and to make any such filings. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes of
the Merger Agreement, the proper officers and directors of each party thereto
shall take all such necessary action.
Directors' and Officers' Indemnification and Insurance. The Merger
Agreement provides that Ultimate Parent and Parent shall cause the Surviving
Corporation to keep in effect for a period not less than six (6) years from the
Effective Time, the provisions in its Articles of Incorporation and Bylaws
containing the provisions with respect to exculpation of director and officer
liability and indemnification set forth in the Articles of Incorporation and
Bylaws of the Company on the date of the Merger Agreement to the fullest extent
permitted under applicable law, which shall not, during such six (6) year
period, be amended, repealed or otherwise modified except as required by
applicable law or except to make changes permitted by applicable law that would
enlarge the exculpation or rights of indemnification thereunder. Prior to the
commencement of the Offer, the Company shall enter into contractual
indemnification agreements with each of the Company's directors.
The Merger Agreement also provides that the Ultimate Parent and Parent
shall cause the Surviving Corporation to maintain in effect for six (6) years
from the Effective Time, if available, the coverage provided by the current
directors' and officers' liability insurance policies maintained by the Company
(provided that the Surviving Corporation may substitute therefor policies of at
least the same coverage containing terms and conditions which are not materially
less favorable) with respect to matters occurring prior to the Effective Time.
No Solicitation of Transactions. The Merger Agreement provides that the
Company shall immediately cease any existing discussions or negotiations with
any third parties conducted prior to the date theretofore with respect to any
Acquisition Proposal (as defined below). Pursuant to the Merger Agreement the
Company shall not, directly or indirectly, through any officer, director,
employee, representative or agent or any of its subsidiaries or otherwise, (i)
solicit, initiate, continue or encourage any inquiries, proposals or offers that
constitute, or could reasonably be expected to lead to, a proposal or offer for
a merger, consolidation, business combination, sale of substantial assets, sale
of shares of capital stock (including, without limitation, by way of a tender
offer), reorganization, extraordinary joint venture or similar transaction
involving the Company or any of its subsidiaries, other than the transactions
contemplated by the Merger Agreement (any of the foregoing inquiries, proposals
or offers being referred to herein and in the Merger Agreement is an
"Acquisition Proposal"), (ii) solicit, initiate, continue or engage in
negotiations or discussions concerning, or provide any non-public information or
data to any person relating to, any Acquisition Proposal, or (iii) agree to,
approve or recommend any Acquisition Proposal; provided, that nothing contained
in the foregoing shall prevent the Company from (A) prior to the purchase by
Purchaser of Shares pursuant to the Offer, furnishing non-public information or
data to, or entering into discussions or negotiations with, any person in
connection with an unsolicited bona fide written Acquisition Proposal by such
person if and only to the extent that (1) the Company's directors determine in
good faith, based upon the advice of its financial advisors, that such
Acquisition Proposal would, if consummated, result in a transaction more
favorable to the Company's stockholders from a financial point of view than the
transactions contemplated by the Merger Agreement and the Company's directors
determine in good faith, based upon the advice of legal counsel, that such
action is required for the discharge of their fiduciary duties to stockholders
under applicable law, (2) prior to furnishing such non-public information to, or
entering into discussions or negotiations with, such person, the Company
receives from such person an executed confidentiality agreement with terms no
less favorable to the Company than those contained in the Confidentiality
Agreement and (3) simultaneously with furnishing such non-public information to
such person, the Company delivers to Parent a copy of all such information; or
(B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to
an Acquisition Proposal. If the Company's directors determine in good faith that
any Acquisition Proposal constitutes a Superior
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<PAGE> 24
Proposal (as defined below), the Board shall promptly give written notice,
specifying the parties to and the structure and material terms of such Superior
Proposal, ("Notice of Superior Proposal") to Parent. The Board may (subject to
the terms and conditions of the Merger Agreement), to the extent the Company's
directors determine in good faith based upon advice of legal counsel that such
action is necessary in order to comply with their fiduciary duties under
applicable law, approve or recommend any such Superior Proposal, or approve or
authorize the Company's entering into an agreement with respect to such Superior
Proposal, approve the solicitation of additional takeover or other investment
proposals or, if permitted by the Merger Agreement, terminate the Merger
Agreement, in each case at any time after the fifth business day following
delivery to Parent of the Notice of Superior Proposal. The Company may take any
of the foregoing actions pursuant to the preceding sentence only if an
Acquisition Proposal that was a Superior Proposal at the time of delivery of a
Notice of Superior Proposal continues to be a Superior Proposal in light of any
improved transaction proposed by Parent prior to the expiration of the five
business day period specified in the preceding sentence. Under the Merger
Agreement, a "Superior Proposal" is defined as any bona fide Acquisition
Proposal that the Company's directors determine, in their good faith reasonable
judgment based on the advice of their financial advisors, to be made by a person
with the financial ability to consummate such proposal and to provide greater
aggregate value to the Company's stockholders than the transactions contemplated
by the Merger Agreement or otherwise proposed by Parent as contemplated above.
The Merger Agreement also provides that the Company shall notify Parent
immediately (and in no event later than forty-eight (48) hours) after receipt by
the Company of any Acquisition Proposal or any request for non-public
information in connection with an Acquisition Proposal or for access to the
properties, books or records of the Company by any person that informs the
Company that it is considering making, or has made, an Acquisition Proposal.
Such notice shall be made orally and in writing and shall indicate in reasonable
detail the identity of the offeror and the terms and conditions of such
proposal, inquiry or contract.
Parent Guarantee of Purchaser Obligations. Pursuant to the Merger
Agreement, Parent is obligated to guarantee the full and faithful performance of
all obligations of Purchaser thereunder including the Purchaser's obligations to
pay the Per Share Amount and the non-refundable fee of $2,200,000, payable by
Purchaser upon termination of the Merger Agreement under certain circumstances
(to be paid by wire transfer of same day funds within two (2) business days
after the date the Merger Agreement is so terminated).
Conditions to the Merger. Under the Merger Agreement, the respective
obligations of each party thereto to effect the Merger is subject to the
satisfaction at or prior to the Effective Time of the following conditions: (a)
if required by the GBCC, the Merger Agreement and the Merger shall have been
adopted by the affirmative vote of the stockholders of the Company by the
requisite vote in accordance with the GBCC; (b) there shall not be in effect any
order, decree or ruling or other action restraining, enjoining or otherwise
prohibiting the Merger, which order, decree, ruling or action shall have been
issued or taken by any court of competent jurisdiction or other governmental
body located or having jurisdiction within the United States or any country or
economic region in which Company or any of its subsidiaries or Parent or any of
its subsidiaries, directly or indirectly, has material assets or operations; (c)
any waiting period applicable to the Merger under the HSR Act shall have
terminated or expired; and (d) Purchaser shall have purchased Shares
representing not less than a majority of the outstanding Shares (assuming the
full exercise of all outstanding 1994 Options) pursuant to the Offer.
The obligations of the Ultimate Parent, the Parent and the Purchaser to
effect the Merger are subject to the satisfaction or waiver by the Parent at or
prior to the Effective Time of the following further conditions: (a) unless
Purchaser shall have purchased Shares pursuant to the Offer, the Company shall
have performed in all material respects its covenants, agreements and
obligations under the Merger Agreement up to the Closing; (b) unless Purchaser
shall have purchased Shares pursuant to the Offer, the representations and
warranties of the Company contained in the Merger Agreement which are qualified
as to materiality shall be true and correct and which are not so qualified shall
be true and correct in all material respects, in each case, as of the date when
made and at and as of the Closing as though newly made at and as of that time;
and (c) unless the Purchaser shall have purchased Shares pursuant to the Offer,
the Company shall have delivered to the Purchaser a certificate dated as of the
Closing and signed by each of the Chief Executive Officer and the Chief
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<PAGE> 25
Financial Officer of the Company certifying as to (i) the accuracy, as of the
date when made and at and as of the Closing as though newly made at and as of
that time, of the representations and warranties of the Company contained in the
Merger Agreement which are qualified as to materiality, (ii) the accuracy, as of
the date when made and at and as of the Closing as though newly made at and as
of that time, in all material respects of the representations and warranties of
the Company contained in the Merger Agreement which are not so qualified, and
(iii) the performance of the obligations required by the Company to be performed
under the Merger Agreement as of the Closing.
The obligations of the Company to effect the Merger are subject to the
satisfaction or waiver by the Company at or prior to the Effective Time of the
following further conditions: (a) the Ultimate Parent, the Parent and the
Purchaser shall have performed in all material respects their respective
covenants, agreements and obligations under the Merger Agreement up to the
Closing; (b) unless the Purchaser shall have purchased Shares pursuant to the
Offer, the representations and warranties of the Ultimate Parent, the Parent and
the Purchaser contained in the Merger Agreement which are qualified as to
materiality shall be true and correct and which are not so qualified shall be
true and correct in all material respects, in each case, as of the date when
made and at and as of the Closing as though newly made at and as of that time;
and (c) unless Purchaser shall have purchased Shares pursuant to the Offer,
Parent shall have delivered to the Company a certificate dated as of the Closing
and signed by an authorized officer of Parent certifying as to (i) the accuracy,
as of the date when made and at and as of the Closing as though newly made at
and as of that time, of the representations and warranties of Ultimate Parent,
Parent and Purchaser contained in the Merger Agreement which are qualified as to
materiality, (ii) the accuracy, as of the date when made and at and as of the
Closing as though newly made at and as of that time, in all material respects of
the representations and warranties of Ultimate Parent, Parent and Purchaser
contained in the Merger Agreement which are not so qualified, and (iii) the
performance of the obligations required by Ultimate Parent, Parent and Purchaser
to be performed under the Merger Agreement as of the Closing.
Termination. The Merger Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, notwithstanding approval
thereof by the stockholders of the Company as follows:
(a) by mutual written consent of Parent, Purchaser and the Company;
(b) by Parent or the Company, without liability, if any court of
competent jurisdiction or other governmental body located or having
jurisdiction within the United States or any country or economic region in
which the Company or any of its subsidiaries or Parent or any of its
subsidiaries, directly or indirectly, has material assets or operations,
shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable;
(c) by the Company: (i) if Purchaser shall have failed to accept for
purchase and pay for Shares pursuant to the Offer on or prior to the date
that is 60 days after the date of the Merger Agreement (the "60th Day")
unless a cause of such failure to accept for purchase and pay for Shares on
or prior to the 60th Day is a failure of either (A) the waiting period
under the HSR Act to have expired prior to the 60th Day, or (B) a third
party having made an Acquisition Proposal on or prior to the 60th Day
(either of (A) or (B) an "Extending Cause"); or (ii) in the event of an
Extending Cause, by the Company if Purchaser shall have failed to accept
for purchase and pay for Shares pursuant to the Offer on or prior to the
date that is 120 days after the date of the Merger Agreement (the "120th
Day"). The 60th Day or the 120th Day, whichever is applicable, is defined
in the Merger Agreement as the "Outside Date". The foregoing
notwithstanding, the right to terminate the Merger Agreement under the
foregoing shall not be available to the Company if the Company's failure to
fulfill any obligation under the Merger Agreement has been the cause of or
resulted in the failure by Purchaser to accept for purchase and pay for
Shares on or prior to the Outside Date;
(d) by the Company if (i) there shall have been a breach of any
representation or warranty of Ultimate Parent, Parent or Purchaser
contained therein which would reasonably be expected to materially and
adversely affect the expected benefits for the Company of the transactions
contemplated
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<PAGE> 26
thereunder or prevent the consummation of the Offer or the Merger, or (ii)
there shall have been a breach of any covenant or agreement of Parent or
Purchaser contained therein which would reasonably be expected to
materially and adversely affect the expected benefits for the Company of
the transactions contemplated thereunder or prevent the consummation of the
Offer or the Merger and which shall not have been cured prior to the
earlier of (A) five (5) business days following notice of such breach and
(B) two (2) business days prior to the date on which the Offer expires;
(e) by Parent if Purchaser shall not have accepted Shares pursuant to
the Offer on or prior to the Outside Date due to a failure of the Minimum
Condition to have been satisfied or any condition set forth in the
Conditions to the Offer to have been materially satisfied or waived by
Purchaser as of any scheduled expiration of the Offer; provided, that the
right to terminate the Merger Agreement under the foregoing shall not be
available to Parent if Parent's or Purchaser's failure to fulfill any
obligation under the Merger Agreement has been the cause of or resulted in
such failure to accept Shares pursuant to the Offer on or prior to the
Outside Date;
(f) by Parent prior to the purchase by Purchaser of Shares pursuant to
the Offer, if (i) there shall have been a breach of any representation or
warranty of the Company contained therein which would reasonably be
expected to materially and adversely affect the expected benefits for
Parent of the transactions contemplated thereunder or prevent the
consummation of the Offer or the Merger, or (ii) there shall have been a
breach of any covenant or agreement of the Company contained therein which
would reasonably be expected to materially and adversely affect the
expected benefits for Parent of the transactions contemplated thereunder or
prevent the consummation of the Offer or the Merger and which shall not
have been cured prior to the earlier of (A) five (5) business days
following notice of such breach and (B) two (2) business days prior to the
date on which the Offer expires;
(g) prior to the purchase of Shares by Purchaser pursuant to the Offer
and no earlier than two (2) business days after the receipt by Parent of a
Notice of Superior Proposal, by the Company if (i) the Superior Proposal
described in such Notice of Superior Proposal continues to be a Superior
Proposal in light of any transaction proposed by Parent prior to the
expiration of the fifth business day after the receipt by Parent of such
Notice of Superior Proposal, (ii) the Company's directors determine in good
faith, based upon the written advice of its independent financial advisors,
that such Acquisition Proposal would, if consummated, result in a
transaction more favorable to the Company's stockholders from a financial
point of view than the transactions contemplated by the Merger Agreement,
and (iii) the Company's directors determine in good faith, based upon the
advice of legal counsel, that such action is required for the discharge of
their fiduciary duties to stockholders under applicable law; or
(h) by Parent if the Board shall have modified in a manner materially
adverse to Parent or Purchaser or withdrawn its approval of the Offer, the
Merger Agreement or the Merger or its recommendation that the Company's
stockholders accept the Offer or the Company shall have entered into an
agreement providing for or implementing an Acquisition Proposal or the
Board shall have resolved to do any of the foregoing.
The Merger Agreement provides that in the event of the termination of the
Merger Agreement pursuant to the above paragraph, the Merger Agreement shall
forthwith become void and there shall be no liability on the part of any party
thereto except as set forth in the Merger Agreement; provided, however, that
nothing therein shall relieve any party from liability for any willful breach
thereof.
The Merger Agreement further provides that if:
(1) a third party makes an Acquisition Proposal, at any time
thereafter the Merger Agreement is terminated pursuant to either (c) or (e)
above, and within twelve (12) months after the date the Merger Agreement is
so terminated, the Company consummates or enters into an agreement, or
shareholders of the Company consummate, a transaction or series of related
transactions (whether by way of merger, re-capitalization, share exchange,
share purchase, tender offer, exchange offer, asset purchase or otherwise)
resulting in any person or group (as defined in Section 13(d)(3) of the
Exchange Act) directly or indirectly becoming the beneficial owner (within
the meaning of Section 13(d)(3) of the
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<PAGE> 27
Exchange Act) or at least a majority of the then outstanding voting capital
stock or substantially all of the assets of the Company, then the Company
shall pay Parent a non-refundable fee of $2,200,000, which amount shall be
payable by wire transfer of same day funds within two business days after
the consummation of such transaction or series of related transactions; or
(2) the Merger Agreement is terminated pursuant to (f), (g) or (h)
above, the Company shall pay Parent a non-refundable fee of $2,200,000,
which amount shall be payable by wire transfer of same day funds within two
business days after the date the Merger Agreement is so terminated; or
(3) the Merger Agreement is terminated pursuant to (c)(i) above, in
the absence of an Extending Cause (as defined in the Merger Agreement) or
pursuant to (d) above, Ultimate Parent, Parent and Purchaser shall,
collectively, pay the Company a nonrefundable fee of $2,200,000, which
amount shall be payable by wire transfer of same day funds within two
business days after the date the Merger Agreement is so terminated.
(4) a party becomes entitled to receive the amounts described in (1),
(2) or (3) above and such amounts are paid in full when due, then such
amounts shall constitute liquidated damages and shall be the paid party's
(ies') exclusive remedy for any violation or breach of any term or
provision of the Merger Agreement. The parties agree that actual damages
are not possible to determine and that such amounts are reasonable
pre-estimates of such damages.
Fees and Expenses. Except as otherwise provided in the Merger Agreement,
each party shall bear its own expenses and costs in connection with the Merger
Agreement and the transactions contemplated thereby.
Amendment. Subject to the terms and conditions of the Merger Agreement,
the Merger Agreement may be amended by action taken by the Company, Ultimate
Parent, Parent and Purchaser at any time before or after adoption of the Merger
by the stockholders of the Company (if required by applicable law) but, after
any such approval, no amendment shall be made which decreases the Per Share
Amount or changes the form thereof, imposes additional conditions to the Merger
or which adversely affects the rights of the Company's stockholders thereunder
without the approval of such stockholders. The Merger Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties thereto.
Extension and Waiver. Subject to the terms and conditions of the Merger
Agreement, at any time prior to the Effective Time, the Company, on the one
hand, and Ultimate Parent, Parent and Purchaser, on the other hand, may (i)
extend the time for the performance of any of the obligations or other acts of
the other party, (ii) waive any inaccuracies in the representations and
warranties of the other party contained therein or in any document, certificate
or writing delivered pursuant thereto, or (iii) waive compliance by the other
party with any of the agreements or conditions contained therein. Any agreement
on the part of any party thereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
The failure of any party thereto to assert any of its rights thereunder shall
not constitute a waiver of such rights.
Voting Agreements. Pursuant to certain letter agreements dated June 30,
1999, certain of the Company's shareholders have agreed, subject to certain
limitations, to tender all of their Shares, representing approximately 32% of
the issued and outstanding Shares of the Company, to the Purchaser pursuant to
the Offer and vote their Shares in favor of the Merger, as follows: (i) John A.
Koehler, Chairman of the Board, President and Chief Executive Officer -- 592,470
Shares; (ii) Sandra Koehler -- 97,000 Shares; (iii) Paul J. Ferri -- 152,665
Shares; (iv) Richard D. Tadler, a director of the Company -- 2,739 Shares; (v)
TA Venture Investors Limited Partnership -- 19,394 Shares; and (vi) the TA
Associates Group (as defined below) -- 1,785,335 Shares. The shareholders
included in (i) through (iv) above, representing approximately 10.2% of the
issued and outstanding Shares of the Company, also granted the Purchaser, the
Parent and the Ultimate Parent a proxy to vote their Shares in favor of the
Merger.
Advent VII L.P., Advent Atlantic and Pacific II L.P., Advent New York L.P.,
Advent Industrial II L.P. and TA Venture Investors Limited Partnership are part
of an affiliated group of investment partnerships collectively referred to as
the "TA Associates Group." Mr. Tadler, a director of the Company, is a Managing
Director of TA Associates, Inc. which is the sole General Partner of TA
Associates VII L.P., TA Associates VI L.P. and TA Associates AAP II Partners
L.P. TA Associates VII L.P. is the sole General Partner of Advent VII L.P. TA
Associates VI L.P. is the sole General Partner of Advent New York L.P. and
Advent
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Industrial II L.P. TA Associates AAP II Partners L.P. is the sole General
Partner of Advent Atlantic and Pacific II L.P. Mr. Tadler is a General Partner
of TA Venture Investors Limited Partnership. TA Associates, Inc. exercises sole
voting and investment power with respect to all of the shares held of record by
the named investment partnerships with the exception of those shares held by TA
Venture Investors Limited Partnership. Principals and employees of TA
Associates, Inc. (including Mr. Tadler) comprise the General Partners of TA
Venture Investors Limited Partnership. In such capacity, Mr. Tadler may be
deemed to share voting and investment power with respect to 19,394 shares held
of record by TA Venture Investors Limited Partnership.
Indemnification Agreement. Upon the signing of the Merger Agreement, John
A. Koehler ("Indemnitor") agreed to indemnify, defend and hold harmless each of
the Ultimate Parent, the Parent and the Purchaser (collectively, the
"Indemnified Parties"), from and against all assessments, losses, damages,
liabilities, costs and expenses arising out of or in connection with or
resulting from (i) any breach of any representation or warranty of the Company
if, at the time such representation or warranty was made it was made
fraudulently and Indemnitor had actual knowledge of such fraud, or (ii)
nonfulfillment, at any time prior to the consummation of the Offer, of any
covenant or agreement by the Company at the time such covenant was given, it was
given with the fraudulent intent that it never be performed and Indemnitor had
actual knowledge of such fraudulent intent in each case contained in or made
pursuant to the Merger Agreement. No indemnification shall be required by
Indemnitor for any damages in the aggregate in excess of $250,000.
Employment, Confidentiality and No-Solicitation Agreements. In connection
with the Merger Agreement, the Company entered into letter agreements (each, an
"Employment Agreement" and, collectively, the "Employment Agreements"), dated as
of June 30, 1999, to employ John A. Koehler, Jerrel W. Kee, James Macchiarola
and Robert Harvey, executive officers of the Company, and certain other persons.
Pursuant to the Employment Agreements, employment is terminable upon thirty (30)
days prior written notice. The material terms of the Employment Agreements are
as follows:
The Employment Agreement with Mr. Koehler provides that Mr. Koehler shall
be employed in the position of Chief Executive Officer at an annual base salary
of $210,000. Mr. Koehler is also eligible to receive incentive pay on an
annualized basis of up to 100% of his annual base salary. Under certain
circumstances, in the event Mr. Koehler's employment is terminated without cause
or he resigns with good reason following the Merger and subject to meeting
certain financial goals, the Employment Agreement provides that Mr. Koehler may
be eligible to receive severance/retention benefits of up to $414,000 in
addition to continuation of his benefits for a period of twelve months. The
Company also entered into a Confidentiality, No-Solicitation and Non-Competition
Agreement with Mr. Koehler dated June 30, 1999, which contains certain
restrictions on Mr. Koehler's post-termination activities for a period of
twenty-four months.
The Employment Agreement with Mr. Kee provides that Mr. Kee shall be
employed in the position of Vice President of Finance and Chief Financial
Officer at an annual base salary of $175,000. Mr. Kee is also eligible to
receive incentive pay on an annualized basis of up to 60% of his annual base
salary. Under certain circumstances, if Mr. Kee's employment is terminated
without cause or he resigns with good reason within twelve months of the Merger
or he remains an employee for twelve months following the Merger, the Employment
Agreement provides that Mr. Kee may be eligible to receive severance/retention
benefits of $280,000 in addition to continuation of his benefits for a period of
twelve months. Additionally, if Mr. Kee is terminated without cause, he shall
also receive a lump-sum severance payment of six months of his base annual
salary. The Company also entered into a Confidentiality and No-Solicitation
Agreement with Mr. Kee dated June 30, 1999, which contains certain restrictions
on Mr. Kee's post-termination activities for a period of twelve months.
The Employment Agreement with Mr. Macchiarola provides that Mr. Macchiarola
shall be employed in the position of Corporate Vice President at an annual base
salary of $170,000. Mr. Macchiarola shall receive a change of control payment in
the net amount of $150,000. Mr. Macchiarola is also eligible to receive
incentive pay on an annualized basis of up to 60% of his annual base salary.
Under certain circumstances, if Mr. Macchiarola's employment is terminated
without cause or he resigns with good reason within twenty four months of the
Merger or if he remains an employee for twenty-four months following the Merger,
the
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Employment Agreement provides that Mr. Macchiarola may be eligible to receive
severance/retention benefits of up to $300,000 in addition to continuation of
his benefits for a period of twelve months. The Company also entered into a
Confidentiality and No-Solicitation Agreement with Mr. Macchiarola dated June
30, 1999, which contains certain limitations on Mr. Macchiarola's
post-termination activities for a period of twelve months.
The Employment Agreement with Mr. Harvey provides that Mr. Harvey shall be
employed in the position of Senior Vice President at an annual base salary of
$160,000. Mr. Harvey is to be issued 5,000 stock options to vest in accordance
with the terms of the applicable stock option plan. Mr. Harvey is also eligible
to receive incentive pay on an annualized basis of up to 60% of his annual base
salary. Under certain circumstances, if Mr. Harvey's employment is terminated
without cause or he resigns with good reason within twelve months of the Merger,
the Employment Agreement provides that Mr. Harvey may be eligible to receive
severance benefits of $256,000 in addition to continuation of his benefits for a
period of twelve months. The Company also entered into a Confidentiality and
No-Solicitation Agreement with Mr. Harvey dated June 30, 1999, which contains
certain limitations on Mr. Harvey's post-termination activities.
12. PURPOSE OF THE OFFER; THE MERGER; PLANS FOR THE COMPANY.
Purpose. The purpose of the Offer is to acquire control of, and the entire
equity interest in, the Company. The Offer is being made pursuant to the Merger
Agreement. As promptly as practicable following consummation of the Offer and
after satisfaction or waiver of all conditions to the Merger set forth in the
Merger Agreement, the Purchaser intends to acquire the remaining equity interest
in the Company not acquired in the Offer by consummating the Merger.
Vote Required to Approve the Merger. The Board of Directors of the Company
has approved the Merger Agreement in accordance with the GBCC. If required for
approval of the Merger, the Company has agreed, subject to the satisfaction of
the conditions to the Merger set forth in the Merger Agreement, in accordance
with and subject to the GBCC, to duly convene a meeting of its stockholders as
soon as practicable following consummation of the Offer for the purpose of
considering and taking action on the Merger Agreement. If stockholder approval
is required, the Merger Agreement must generally be approved by the vote of the
holders of a majority of the outstanding Shares. As a result, if the Minimum
Condition is satisfied, the Purchaser will have the power, to approve the Merger
Agreement without the affirmative vote of any other stockholder. In such case,
the Ultimate Parent, the Parent and the Purchaser have agreed to cause all
Shares then owned by them and their subsidiaries to be voted in favor of the
approval of the Merger Agreement and the Merger. If the Purchaser acquires at
least 90% of the outstanding Shares, the Purchaser intends to take, and the
Company has agreed, at the request of the Purchaser, to take all necessary and
appropriate action to cause the Merger to become effective as soon as reasonably
practicable after such acquisition, without a meeting of the Company's
stockholders, in accordance with the GBCC. In such event, the Merger would be
accomplished without such a meeting.
Dissenter's Rights. Stockholders do not have appraisal rights as a result
of the Offer. However, if the Merger is consummated, stockholders of the Company
at the time of the Merger who do not vote in favor of the Merger and comply with
all statutory requirements will have the right under the GBCC to demand
appraisal of, and receive payment in cash of the fair value of, their Shares
outstanding immediately prior to the effective date of the Merger in accordance
with Article 13 of the GBCC.
Under the GBCC, stockholders who properly demand appraisal and otherwise
comply with the applicable statutory procedures will be entitled to receive a
judicial determination of the fair value of their Shares (exclusive of any
element of value arising from the accomplishment or expectation of the Merger)
and to receive payment of such fair value in cash. Any such judicial
determination of the fair value of such Shares could be based upon
considerations other than or in addition to the price paid in the Offer and the
Merger and the market value of the Shares. Stockholders should recognize that
the value so determined could be equal to or higher or lower than the price per
Share paid pursuant to the Offer or the consideration per Share to be paid in
the Merger.
THE FOREGOING SUMMARY OF THE RIGHTS OF STOCKHOLDERS DOES NOT PURPORT TO BE
A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY STOCKHOLDERS DESIRING
TO EXERCISE ANY AVAILABLE APPRAISAL RIGHTS. THE
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PRESERVATION AND EXERCISE OF APPRAISAL RIGHTS REQUIRE STRICT ADHERENCE TO THE
APPLICABLE PROVISIONS OF THE GEORGIA LAW.
The foregoing description of the GBCC is not necessarily complete and is
qualified in its entirety by reference to the GBCC, a copy of which is attached
to this Offer to Purchase as Exhibit A.
Rule 13e-3. The Commision 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 following the purchase of
Shares pursuant to the Offer in which the Purchaser seeks to acquire any
remaining Shares. Rule 13e-3 should not be applicable to the Merger if the
Merger is consummated within one year after the expiration or termination of the
Offer and the price paid in the Merger is not less than the per Share price paid
pursuant to the Offer. However, in the event that the Purchaser is deemed to
have acquired control of the Company pursuant to the Offer and if the Merger is
consummated more than one year after completion of the Offer or an alternative
acquisition transaction is effected whereby stockholders of the Company receive
consideration less than that paid pursuant to the Offer, in either case at a
time when the Shares are still registered under the Exchange Act, the Purchaser
may be required to comply with Rule 13e-3 under the Exchange Act. If applicable,
Rule 13e-3 would require, among other things, that certain financial information
concerning the Company and certain information relating to the fairness of the
Merger or such alternative transaction and the consideration offered to minority
stockholders in the Merger or such alternative transaction, be filed with the
Commission and disclosed to stockholders prior to consummation of the Merger or
such alternative transaction. The purchase of a substantial number of Shares
pursuant to the Offer may result in the Company being able to terminate its
Exchange Act registration. See Section 14. If such registration were terminated,
Rule 13e-3 would be inapplicable to any such future Merger or such alternative
transaction.
Plans for the Company. If the Purchaser obtains control of the Company
pursuant to the Offer, the Parent expects to conduct a detailed review of the
Company and its businesses, assets, corporate structure, capitalization,
operations, properties, policies, management and personnel and to consider what,
if any, changes would be desirable in light of the circumstances that then
exist. Such changes could include changes in the Company's businesses, corporate
structure, certificate of incorporation, by-laws, capitalization, board of
directors, management or dividend policy.
Except as described in this Offer to Purchase, none of the Purchaser, the
Parent, the Ultimate Parent nor, to the best knowledge of the Purchaser, the
Parent or the Ultimate Parent, any of the persons listed on Schedule I have any
present plans or proposals that would relate to or result in an extraordinary
corporate transaction such as a merger, reorganization or liquidation involving
the Company or any of its subsidiaries or a sale or other transfer of a material
amount of assets of the Company or any of its subsidiaries, any material change
in the capitalization or dividend policy of the Company or any other material
change in the Company's corporate structure or business or the composition of
its Board of Directors or management.
13. DIVIDENDS AND DISTRIBUTIONS. If the Company should, on or after the
date of the Merger Agreement (except as contemplated thereby), split, combine or
otherwise change the Shares or its capitalization, or disclose that it has taken
any such action, then without prejudice to the Purchaser's rights under Section
15, the Purchaser may make such adjustments to the purchase price and other
terms of the Offer as it deems appropriate to reflect such split, combination or
other change.
If on or after the date of the Merger Agreement (except as contemplated
thereby), the Company should declare or pay any cash or stock dividend or other
distribution on, or issue any right 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 the nominee or transferee of the Purchaser on the
Company's stock transfer records of such Shares that are purchased pursuant to
the Offer, then without prejudice to the Purchaser's rights under Section 15,
(i) the purchase price payable per Share by the Purchaser pursuant to the Offer
will be reduced to the extent any such dividend or distribution is payable in
cash and (ii) any non-cash dividend, distribution (including additional Shares)
or right received and held by a tendering stockholder shall be required to be
promptly remitted and transferred by the tendering stockholder to the Depositary
for the account of the Purchaser, accompanied by appropriate documentation of
transfer. Pending such remittance or appropriate
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assurance thereof, the Purchaser will, subject to applicable law, be entitled to
all rights and privileges as owner of any such non-cash dividend, distribution
or right and may withhold the entire purchase price or deduct from the purchase
price the amount or value thereof, as determined by the Purchaser in its sole
discretion.
14. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES, NASDAQ LISTING AND
EXCHANGE ACT REGISTRATION. The purchase of Shares pursuant to the Offer will
reduce the number of Shares that might otherwise trade publicly and will reduce
the number of holders of Shares. This could 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 National Association of
Securities Dealers, Inc. (the "NASD") for continued inclusion on the Nasdaq
National Market. The maintenance for continued inclusion requires the Company to
substantially meet one of two maintenance standards. The Company must have
either (a)(i) at least 750,000 publicly-held shares, (ii) at least 400
stockholders of round lots, (iii) a market value of at least $5 million, (iv) a
minimum bid price per Share of $1.00, (v) at least two registered and active
market makers for its Shares and (vi) net tangible assets of at least $4
million, or (b)(i) at least, 1,100,000 publicly-held shares, (ii) at least 400
stockholders of round lots, (iii) a market value of at least $15 million, and
(v) either (x) a market capitalization of at least $50 million or (y) total
assets and total revenue of at least $50 million each for the most recently
completed fiscal year or two of the last three most recently completed fiscal
years, (v) a minimum bid price per Share of $5.00 and (vi) at least four
registered and active market makers. Shares held directly or indirectly by
directors, officers or beneficial owners or more than 10% of the Shares are not
considered as being publicly held for this purpose.
If, as a result of the purchase of Shares pursuant to the Offer or
otherwise, the Shares no longer meet the requirements of the NASD for continued
inclusion in the Nasdaq National Market or in any other tier of the Nasdaq Stock
Market, and the Shares are, in fact, no longer included in the Nasdaq National
Market or in any other tier of the Nasdaq Stock Market, the market for Shares
could be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD
for continued inclusion in any tier of the Nasdaq Stock Market, it may be
possible that the Shares would continue to trade in the over-the-counter market
and that price quotations would be reported by other sources. The extent of the
public market for the Shares and the availability of such quotations would,
however, depend upon the number of the holders of Shares remaining at such time,
the interest in maintaining a market in Shares on the part of the securities
firms, the possible termination of registration of the Shares under the Exchange
Act, as described below, and other factors.
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, as of March 19, 1999, there were
approximately 55 holders of record or through nominee or street name accounts
with brokers of Shares and there were 8,265,568 Shares outstanding. If as a
result of the purchase of Shares pursuant to the Offer or otherwise, the Shares
no longer meet the requirements of the NASD for continued inclusion in the
Nasdaq National Market or in any other tier of the Nasdaq Stock Market and the
Shares are no longer included in the Nasdaq National Market or in any other tier
of the Nasdaq Stock Market, as the case may be, the market for the Shares could
be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD
for continued inclusion in any tier of the Nasdaq Stock Market, it is possible
that such Shares would continue to trade on other securities exchanges or in the
over-the-counter market and that price quotations would be reported by such
exchanges or through other sources. However, the extent of the public market for
the Shares and the availability of such quotations would depend upon such
factors as the number of stockholders and/or the aggregate market value of the
Shares remaining at such time, the interest in maintaining a market in the
Shares on the part of securities firms, the possible termination of registration
under the Exchange Act as described below and other factors. The Purchaser
cannot predict whether 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.
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The Shares are currently registered under the Exchange Act. The purchase of
Shares pursuant to the Offer may result in the Shares becoming eligible for
deregistration under the Exchange Act. Registration of the Shares may be
terminated upon application of the Company to the Commission if the Shares are
not listed on a national securities exchange and there are fewer than 300 record
holders. The termination of the registration of the Shares under the Exchange
Act would substantially reduce the information required to be furnished by the
Company to holders of the Shares and would make certain provisions of the
Exchange Act, such as the short-swing profit recovery provisions of Section
16(b), the requirement of furnishing a proxy statement in connection with
stockholders' meetings and the requirements of Rule 13e-3 under the Exchange Act
with respect to "going private" transactions, no longer applicable to the
Shares. Furthermore, "affiliates" of the Company and persons holding "restricted
securities" of the Company may be deprived of the ability to dispose of the
securities pursuant to Rule 144 under the Securities Act of 1933.
The Shares are currently "margin securities" under the rules 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 such Shares for the purpose of buying, carrying, or trading in
securities ("purpose loans"). Depending upon factors similar to those described
above with respect to listing and market quotations, it is possible that,
following the Offer, the Shares might no longer constitute "margin securities"
for the purposes of the Federal Reserve Board's margin regulations and therefore
could no longer be used as collateral for purpose loans made by brokers.
15. CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provision
of the Offer, Purchaser shall not be required to accept for payment or, subject
to any applicable rules and regulations of the Commission, including, without
limitation, Rule 14e-1(c) under the Exchange Act (relating to Purchaser's
obligation to pay for or return Shares promptly after termination or withdrawal
of the Offer), pay for any Shares tendered pursuant to the Offer, and may
postpone the acceptance for payment or, subject to the restriction referred to
above, payment for any Shares tendered pursuant to the Offer, and may terminate
or amend the Offer and not accept for payment any Shares, 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 (iii) any material
applicable approval, permit, authorization, consent or waiting period shall not
have been obtained or satisfied on terms satisfactory to Parent in its
reasonable discretion; provided, that prior to the Outside Date, Purchaser shall
not terminate the Offer by reason of the non-satisfaction of any of the
conditions set forth in clauses (ii) or (iii) above (it being understood that
this proviso shall not prohibit Purchaser from terminating the Offer or failing
to extend the Offer by reason of the non-satisfaction of any other condition of
the Offer) or (iv) at any time prior to the acceptance for payment of Shares,
any of the following conditions occurs or has occurred or Purchaser makes a good
faith determination that any of the following conditions has occurred:
(a) there shall have been any action or proceeding brought by any
governmental authority before any court, or any order or preliminary or
permanent injunction entered in any action or proceeding before any court
or governmental, administrative or regulatory authority or agency, located
or having jurisdiction within the United States or any other country or
economic region in which the Company or any of its Subsidiaries or Parent
or any of its subsidiaries, directly or indirectly, has material assets or
operations, or any other action taken, proposed or threatened, or statute,
rule, regulation, legislation, interpretation, judgment or order proposed,
sought, enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to Purchaser, the Company or any Subsidiary or affiliate of
Purchaser or the Company or the Offer, the Merger or the transactions
contemplated by the Merger Agreement, by any legislative body, court,
government or governmental, administrative or regulatory authority or
agency located or having jurisdiction within the United States or any other
country or economic region in which the Company or any of its Subsidiaries
or Parent or any of its subsidiaries, directly or indirectly, has material
assets or operations, which could reasonably be expected to have a Material
Adverse Effect or to have the effect of: (i) making illegal, or otherwise
directly or indirectly restraining or prohibiting or making materially more
costly, the making of the Offer, the acceptance for payment of, payment
for, or ownership, directly or indirectly, of some of or all the Shares by
Parent or Purchaser, the consummation of any of the transactions
contemplated by the Merger Agreement or materially delaying the Merger;
(ii) prohibiting or materially limiting the ownership or operation by the
Company or any of its
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Subsidiaries, or by Parent or any of its subsidiaries, of all or any
material portion of the business or assets of the Company or any of its
Subsidiaries or Parent or any of its subsidiaries, or compelling Purchaser,
Parent or any of Parent's subsidiaries to dispose of or hold separate all
or any material portion of the business or assets of the Company or any of
its Subsidiaries or Parent or any of its subsidiaries, as a result of the
transactions contemplated by the Merger Agreement; (iii) imposing or
confirming limitations on the ability of Purchaser, Parent or any of
Parent's subsidiaries effectively to acquire or hold or to exercise full
rights of ownership of Shares, including, without limitation, the right to
vote any Shares on all matters properly presented to the stockholders of
the Company, including, without limitation, the adoption and approval of
the Merger Agreement and the Merger, or the right to vote any shares of
capital stock of any subsidiary of the Company; or (iv) requiring
divestiture by Parent or Purchaser, directly or indirectly, of any Shares;
or
(b) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on the NYSE or the Nasdaq
Stock Market for a period in excess of twenty-four (24) hours (excluding
suspensions or limitations resulting solely from physical damage or
interference with such exchange not related to market conditions), (ii) a
declaration of a banking moratorium or any suspension of payments in
respect to banks in the United States, (iii) a commencement of a war or
armed hostilities or other similar national or international crisis
directly or indirectly involving the United States having, or which could
reasonably be expected to have, a substantial continuing general effect on
business and financial conditions in the United States except for those
involving the countries of Iraq and Yugoslavia (including Kosovo), or (iv)
in the case of any of the foregoing existing on the date thereof, a
material acceleration or worsening thereof;
(c) the Company shall have breached or failed to perform in any
material respect any of its covenants or agreements under the Merger
Agreement; or
(d) any of the representations and warranties of the Company set forth
in the Merger Agreement that are qualified as to materiality shall not be
true and correct in a manner adverse to Purchaser or Parent, or any of the
representations and warranties of the Company set forth in the Merger
Agreement that are not so qualified shall not be true and correct in any
material respect in a manner adverse to Purchaser, Ultimate Parent or
Parent, in each case as if such representation and warranties were made at
the time of such determination (or, in the case of any representation and
warranty made as of a specified date, as of such date); or
(e) the Merger Agreement shall have been terminated in accordance with
its terms or the Offer shall have been terminated with the consent of the
Company; or
(f) the Board shall have withdrawn or modified in a manner materially
adverse to Purchaser or withdrawn its approval or recommendation of the
Offer, the Merger Agreement, or the Merger or shall have recommended, or
the Company shall have entered into an agreement providing for or
implementing an Acquisition Proposal (as defined below), or the Board shall
have resolved to do any of the foregoing.
In addition to the foregoing conditions, Purchaser shall have received from
the Company an officers certificate signed by each of the Chief Executive
Officer and the Chief Financial Officer of the Company certifying as to (i) the
accuracy, as of the date when made and at and as of the Closing (as defined in
the Merger Agreement) as though newly made at and as of that time, of the
representations and warranties of the Company contained in the Merger Agreement
which are qualified as to materiality, (ii) the accuracy, as of the date when
made and at and as of the Closing as though newly made at and as of that time,
in all material respects of the representations and warranties of the Company
contained in the Merger Agreement which are not so qualified and (iii) the
performance of the obligations required by the Company to be performed under the
Merger Agreement as of the Closing.
The foregoing conditions (other than the Minimum Condition) are for the
sole benefit of Purchaser and the foregoing conditions (including the Minimum
Condition) may be asserted by Purchaser regardless of the circumstances giving
rise to any such condition or may be waived by Purchaser in whole or in part at
any time or from time to time in its sole discretion, provided that the Minimum
Condition may only be waived or
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modified with the Company's prior written approval. The failure by Purchaser at
any time to exercise any of the foregoing rights shall not be deemed a waiver of
any such right, the waiver of any such right with respect to particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each such right shall be deemed an ongoing right that may be
asserted at any time or from time to time.
16. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS. General. Except as
set forth below, based upon its examination of publicly available filings by the
Company with the Commission and other publicly available information concerning
the Company, neither the Purchaser nor the Parent nor the Ultimate Parent is
aware of any licenses or other regulatory permits that appear to be material to
the business of the Company and its subsidiaries, taken as a whole, 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 of any filings, approvals or other actions by or with any domestic (federal
or state), foreign or supranational governmental authority or administrative or
regulatory agency that would be required prior to the acquisition of 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 the Purchaser's present intention to seek
such approval or action. There can be no assurance that any such approval or
other action, if needed, would be obtained without substantial conditions or
that adverse consequences might not result to the business of the Company, the
Ultimate Parent, the Parent or the Purchaser or that certain parts of the
businesses of the Company, the Ultimate Parent, the Parent or the Purchaser
might not have to be disposed of or held separate or other substantial
conditions complied with in order to obtain such approval or other action or in
the event that such approval was not obtained or such other action was not
taken, any of which could cause the Purchaser to elect (subject to the terms of
the Merger Agreement) to terminate the Offer without the purchase of the Shares
thereunder. The Purchaser's obligation under the Offer to accept for payment and
pay for Shares is subject to certain conditions, including conditions relating
to the legal matters discussed in this Section 15.
State Takeover Laws. A number of states have adopted takeover laws and
regulations which purport to varying degrees to be applicable to attempts to
acquire securities of corporations which are incorporated in such states or
which have or whose business operations have substantial economic effects in
such states, or which have substantial assets, security holders, principal
executive offices or principal places of business therein. To the extent that
certain provisions of certain of these state takeover statutes purport to apply
to the Offer, 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 Act, 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. However, in 1987, 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 applied 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 the Florida Control Share Acquisition Act were
unconstitutional as applied to corporations incorporated outside of Florida.
Except as described herein, the Purchaser has not attempted to comply with
any state takeover statutes in connection with the Offer. The Purchaser reserves
the right to challenge the validity or applicability of any state law allegedly
applicable to the Offer and nothing in this Offer to Purchase nor any action
taken in
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connection herewith is intended as a waiver of that right. In the event that any
state takeover statute is found applicable to the Offer, 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 15.
Antitrust. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission ("FTC"), certain acquisition
transactions may not be consummated unless certain information has been
furnished to 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 is subject to such
requirements. See Section 2.
The Ultimate Parent intends, as soon as reasonably practicable following
the date hereof, to file with the FTC and the Antitrust Division a Premerger
Notification and Report Form in connection with the purchase of Shares pursuant
to the Offer. Under the provisions of the HSR Act applicable to the Offer, the
purchase of Shares pursuant to the Offer may not be consummated until the
expiration of a 15-calendar day waiting period following the filing by the
Ultimate Parent, unless the FTC terminates the waiting period prior thereto.
During this 15-calendar day waiting period, the FTC and the Antitrust Division
will review the transaction. If, within such 15-calendar day waiting period,
either the Antitrust Division or the FTC has competitive concerns, they can
issue a request for additional information or documentary material to the
Ultimate Parent, which extends the waiting period until 10 calendar days
following substantial compliance by the Ultimate Parent with such request.
Thereafter, the waiting period could be extended only by court order. If the
acquisition of Shares is delayed pursuant to a request by the FTC or the
Antitrust Division for additional information or documentary material pursuant
to the HSR Act, the Offer may, but need not (other than as may be requested by
the Company pursuant to the Merger Agreement), be extended and in any event the
purchase of and payment for Shares will be deferred until 10 days after the
request is substantially complied with, unless the waiting period is terminated
earlier by the FTC and the Antitrust Division. See Section 2. Any such extension
of the waiting period will not give rise to any withdrawal rights not otherwise
provided for by applicable law. See Section 4.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Shares by
the Purchaser pursuant to the Offer. At any time before or after the purchase by
the Purchaser of Shares pursuant to the Offer, either of the FTC and the
Antitrust Division could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking to enjoin the
purchase of Shares pursuant to the Offer or seeking the divestiture of Shares
purchased by the Purchaser or the divestiture of substantial assets of the
Parent, its subsidiaries or the Company. Private parties and state attorneys
general may also bring legal action under federal or state antitrust laws under
certain circumstances.
Certain Foreign Approvals. The Company has informed the Purchaser that the
Company has interests in certain businesses and assets in England and Canada.
The Purchaser has determined, however, that the parties are not required to make
(and the parties do not intend to make) pre-merger competition law notifications
in either England or Canada.
17. FEES AND EXPENSES. CSFB is acting as Dealer Manager in connection
with the Offer and as financial advisor to the Parent, the Ultimate Parent and
the Purchaser in connection with the Merger, for which services CSFB will
receive customary compensation. The Ultimate Parent has also agreed to reimburse
CSFB for all out-of-pocket expenses incurred in connection with its engagement,
including the fees and expenses of its legal counsel, and to indemnify CSFB and
certain related persons against certain liabilities and expenses in connection
with its engagement, including certain liabilities under the federal securities
laws. In the past, CSFB has provided investment banking services to the Ultimate
Parent for which services CSFB has received customary compensation. In the
ordinary course of business, CSFB and its affiliates may actively trade the
equity securities of the Company and the Ultimate Parent for their own account
and for the accounts of customers and, accordingly may at any time hold a long
or short position in such securities.
The Purchaser has retained Georgeson Shareholder Communications Inc. to act
as the Information Agent and American Stock Transfer & Trust Company to act as
the Depositary in connection with the Offer. The Information Agent may contact
holders of Shares by mail, telephone, telex, telegraph and personal
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interview and may request brokers, dealers and other nominee stockholders to
forward the Offer materials to beneficial owners. The Information Agent and the
Depositary will receive reasonable and customary compensation for services
relating to the Offer and will be reimbursed for certain out-of-pocket expenses.
The Purchaser and the Parent have also agreed to indemnify the Information Agent
and the Depositary against certain liabilities and expenses in connection with
the Offer, including certain liabilities under the federal securities laws.
The Purchaser will not pay any fees or commissions to any broker or dealer
or any other person for soliciting tenders of Shares pursuant to the Offer
(other than to the Dealer Manager, the Information Agent and the Depositary).
Brokers, dealers, commercial banks and trust companies will, upon request, be
reimbursed by the Purchaser for customary mailing and handling expenses incurred
by them in forwarding offering materials to their customers.
18. MISCELLANEOUS. The Offer is being made solely by this Offer to
Purchase and the related Letter of Transmittal and is being made to all holders
of Shares. The Purchaser is not aware of any state where the making of the Offer
is prohibited by administrative or judicial action pursuant to any valid state
statute. If the Purchaser becomes aware of any valid state statute prohibiting
the making of the Offer or the acceptance of Shares pursuant thereto, the
Purchaser will make a good faith effort to comply with any such state statute.
If after such good faith effort, the Purchaser cannot comply with such state
statute, the Offer will not be made to nor will tenders be accepted from or on
behalf of the holders of Shares in such state. In any jurisdiction where the
securities, blue sky or other laws require the Offer to be made by a licensed
broker or dealer, the Offer shall be deemed to be made on behalf of the
Purchaser by the Dealer Manager or one or more registered brokers or dealers
that are licensed under the laws of such jurisdiction.
The Purchaser and the Parent have filed with the Commission a Schedule
14D-1 (including exhibits) pursuant to Rule 14d-3 under the Exchange Act,
furnishing certain additional information with respect to the Offer. Such
statement and any amendments thereto, including exhibits, may be inspected and
copies may be obtained from the offices of the Commission (except that they will
not be available at the regional offices of the Commission) in the manner set
forth in Section 8 of this Offer to Purchase.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR THE PARENT OR THE ULTIMATE PARENT
NOT CONTAINED HEREIN OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
36
<PAGE> 37
EXHIBIT A
ARTICLE 13
GEORGIA BUSINESS CORPORATION CODE
DISSENTERS' RIGHTS
PART 1
RIGHT TO DISSENT AND OBTAIN PAYMENT FOR SHARES.
14-2-1301. Definitions.
14-2-1302. Right to dissent.
14-2-1303. Dissent by nominees and beneficial owners.
PART 2
PROCEDURE FOR EXERCISE OF DISSENTERS' RIGHTS.
14-2-1320. Notice of dissenters' rights.
14-2-1321. Notice of intent to demand payment.
14-2-1322. Dissenters' notice.
14-2-1323. Duty to demand payment.
14-2-1324. Share restrictions.
14-2-1325. Offer of payment.
14-2-1326. Failure to take action.
14-2-1327. Procedure if shareholder dissatisfied with payment or offer.
PART 3
JUDICIAL APPRAISAL OF SHARES.
14-2-1330. Court action.
14-2-1331. Court costs and counsel fees.
14-2-1332. Limitation of actions.
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<PAGE> 38
ARTICLE 13
DISSENTERS' RIGHTS
PART 1
RIGHT TO DISSENT AND OBTAIN PAYMENT FOR SHARES
14-2-1301. DEFINITIONS.
As used in this article, the term:
(1) "Beneficial shareholder" means the person who is a beneficial
owner of shares held in a voting trust or by a nominee as the record
shareholder.
(2) "Corporate action" means the transaction or other action by the
corporation that creates dissenters' rights under Code Section 14-2-1302.
(3) "Corporation" means the issuer of shares held by a dissenter
before the corporate action, or the surviving or acquiring corporation by
merger or share exchange of that issuer.
(4) "Dissenter" means a shareholder who is entitled to dissent from
corporate action under Code Section 14-2-1302 and who exercises that right
when and in the manner required by Code Sections 14-2-1320 through
14-2-1327.
(5) "Fair value," with respect to a dissenter's shares, means the
value of the shares immediately before the effectuation of the corporate
action to which the dissenter objects, excluding any appreciation or
depreciation in anticipation of the corporate action.
(6) "Interest" means interest from the effective date of the corporate
action until the date of payment, at a rate that is fair and equitable
under all the circumstances.
(7) "Record shareholder" means the person in whose name shares are
registered in the records of a corporation or the beneficial owner of
shares to the extent of the rights granted by a nominee certificate on file
with a corporation.
(8) "Shareholder" means the record shareholder or the beneficial
shareholder.
14-2-1302. RIGHT TO DISSENT.
(a) A record shareholder of the corporation is entitled to dissent from,
and obtain payment of the fair value of his shares in the event of, any of the
following corporate actions:
(1) Consummation of a plan of merger to which the corporation is a
party:
(A) If approval of the shareholders of the corporation is required
for the merger by Code Section 14-2-1103 or 14-2-1104 or the articles of
incorporation and the shareholder is entitled to vote on the merger; or
(B) If the corporation is a subsidiary that is merged with its
parent under Code Section 14-2-1104;
(2) Consummation of a plan of share exchange to which the corporation
is a party as the corporation whose shares will be acquired, if the
shareholder is entitled to vote on the plan;
(3) Consummation of a sale or exchange of all or substantially all of
the property of the corporation if a shareholder vote is required on the
sale or exchange pursuant to Code Section 14-2-1202, but not including a
sale pursuant to court order or a sale for cash pursuant to a plan by which
all or substantially all of the net proceeds of the sale will be
distributed to the shareholders within one year after the date of sale;
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<PAGE> 39
(4) An amendment of the articles of incorporation that materially and
adversely affects rights in respect of a dissenter's shares because it:
(A) Alters or abolishes a preferential right of the shares;
(B) Creates, alters, or abolishes a right in respect of redemption,
including a provision respecting a sinking fund for the redemption or
repurchase, of the shares;
(C) Alters or abolishes a preemptive right of the holder of the
shares to acquire shares or other securities;
(D) Excludes or limits the right of the shares to vote on any
matter, or to cumulate votes, other than a limitation by dilution
through issuance of shares or other securities with similar voting
rights;
(E) Reduces the number of shares owned by the shareholder to a
fraction of a share if the fractional share so created is to be acquired
for cash under Code Section 14-2-604; or
(F) Cancels, redeems, or repurchases all or part of the shares of
the class; or
(5) Any corporate action taken pursuant to a shareholder vote to the
extent that Article 9 of this chapter, the articles of incorporation,
bylaws, or a resolution of the board of directors provides that voting or
non-voting shareholders are entitled to dissent and obtain payment for
their shares.
(b) A shareholder entitled to dissent and obtain payment for his shares
under this article may not challenge the corporate action creating his
entitlement unless the corporate action fails to comply with procedural
requirements of this chapter or the articles of incorporation or bylaws of the
corporation or the vote required to obtain approval of the corporate action was
obtained by fraudulent and deceptive means, regardless of whether the
shareholder has exercised dissenter's rights.
(c) Notwithstanding any other provision of this article, there shall be no
right of dissent in favor of the holder of shares of any class or series which,
at the record date fixed to determine the shareholders entitled to receive
notice of and to vote at a meeting at which a plan of merger or share exchange
or a sale or exchange of property or an amendment of the articles of
incorporation is to be acted on, were either listed on a national securities
exchange or held of record by more than 2,000 shareholders, unless:
(1) In the case of a plan of merger or share exchange, the holders of
shares of the class or series are required under the plan of merger or
share exchange to accept for their shares anything except shares of the
surviving corporation or another publicly held corporation which at the
effective date of the merger or share exchange are either listed on a
national securities exchange or held of record by more than 2,000
shareholders, except for scrip or cash payments in lieu of fractional
shares; or
(2) The articles of incorporation or a resolution of the board of
directors approving the transaction provides otherwise.
14-2-1303. DISSENT BY NOMINEES AND BENEFICIAL OWNERS.
A record shareholder may assert dissenters' rights as to fewer than all the
shares registered in his name only if he dissents with respect to all shares
beneficially owned by any one beneficial shareholder and notifies the
corporation in writing of the name and address of each person on whose behalf he
asserts dissenters' rights. The rights of a partial dissenter under this Code
section are determined as if the shares as to which he dissents and his other
shares were registered in the names of different shareholders.
A-3
<PAGE> 40
PART 2
PROCEDURE FOR EXERCISE OF DISSENTERS' RIGHTS
14-2-1320. NOTICE OF DISSENTERS' RIGHTS.
(a) If proposed corporate action creating dissenters' rights under Code
Section 14-2-1302 is submitted to a vote at a shareholders' meeting, the meeting
notice must state that shareholders are or may be entitled to assert dissenters'
rights under this article and be accompanied by a copy of this article.
(b) If corporate action creating dissenters' rights under Code Section
14-2-1302 is taken without a vote of shareholders, the corporation shall notify
in writing all shareholders entitled to assert dissenters' rights that the
action was taken and send them the dissenters' notice described in Code Section
14-2-1322 no later than ten days after the corporate action was taken.
14-2-1321. NOTICE OF INTENT TO DEMAND PAYMENT.
(a) If proposed corporate action creating dissenters' rights under Code
Section 14-2-1302 is submitted to a vote at a shareholders' meeting, a record
shareholder who wishes to assert dissenters' rights:
(1) Must deliver to the corporation before the vote is taken written
notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(2) Must not vote his shares in favor of the proposed action.
(b) A record shareholder who does not satisfy the requirements of
subsection (a) of this Code section is not entitled to payment for his shares
under this article.
14-2-1322. DISSENTERS' NOTICE.
(a) If proposed corporate action creating dissenters' rights under Code
Section 14-2-1302 is authorized at a shareholders' meeting, the corporation
shall deliver a written dissenters' notice to all shareholders who satisfied the
requirements of Code Section 14-2-1321.
(b) The dissenters' notice must be sent no later than ten days after the
corporate action was taken and must:
(1) State where the payment demand must be sent and where and when
certificates for certificated shares must be deposited;
(2) Inform holders of uncertificated shares to what extent transfer of
the shares will be restricted after the payment demand is received;
(3) Set a date by which the corporation must receive the payment
demand, which date may not be fewer than 30 nor more than 60 days after the
date the notice required in subsection (a) of this Code section is
delivered; and
(4) Be accompanied by a copy of this article.
14-2-1323. DUTY TO DEMAND PAYMENT.
(a) A record shareholder sent a dissenters' notice described in Code
Section 14-2-1322 must demand payment and deposit his certificates in accordance
with the terms of the notice.
(b) A record shareholder who demands payment and deposits his shares under
subsection (a) of this Code section retains all other rights of a shareholder
until these rights are canceled or modified by the taking of the proposed
corporate action.
(c) A record shareholder who does not demand payment or deposit his share
certificates where required, each by the date set in the dissenters' notice, is
not entitled to payment for his shares under this article.
A-4
<PAGE> 41
14-2-1324. SHARE RESTRICTIONS.
(a) The corporation may restrict the transfer of uncertificated shares from
the date the demand for their payment is received until the proposed corporate
action is taken or the restrictions released under Code Section 14-2-1326.
(b) The person for whom dissenters' rights are asserted as to
uncertificated shares retains all other rights of a shareholder until these
rights are canceled or modified by the taking of the proposed corporate action.
14-2-1325. OFFER OF PAYMENT.
(a) Except as provided in Code Section 14-2-1327, within ten days of the
later of the date the proposed corporate action is taken or receipt of a payment
demand, the corporation shall by notice to each dissenter who complied with Code
Section 14-2-1323 offer to pay to such dissenter the amount the corporation
estimates to be the fair value of his or her shares, plus accrued interest.
(b) The offer of payment must be accompanied by:
(1) The corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, an income
statement for that year, a statement of changes in shareholders' equity for
that year, and the latest available interim financial statements, if any;
(2) A statement of the corporation's estimate of the fair value of the
shares;
(3) An explanation of how the interest was calculated;
(4) A statement of the dissenter's right to demand payment under Code
Section 14-2-1327; and
(5) A copy of this article.
(c) If the shareholder accepts the corporation's offer by written notice to
the corporation within 30 days after the corporation's offer or is deemed to
have accepted such offer by failure to respond within said 30 days, payment for
his or her shares shall be made within 60 days after the making of the offer or
the taking of the proposed corporate action, whichever is later.
14-2-1326. FAILURE TO TAKE ACTION.
(a) If the corporation does not take the proposed action within 60 days
after the date set for demanding payment and depositing share certificates, the
corporation shall return the deposited certificates and release the transfer
restrictions imposed on uncertificated shares.
(b) If, after returning deposited certificates and releasing transfer
restrictions, the corporation takes the proposed action, it must send a new
dissenters' notice under Code Section 14-2-1322 and repeat the payment demand
procedure.
14-2-1327. PROCEDURE IF SHAREHOLDER DISSATISFIED WITH PAYMENT OR OFFER.
(a) A dissenter may notify the corporation in writing of his own estimate
of the fair value of his shares and amount of interest due, and demand payment
of his estimate of the fair value of his shares and interest due, if:
(1) The dissenter believes that the amount offered under Code Section
14-2-1325 is less than the fair value of his shares or that the interest
due is incorrectly calculated; or
(2) The corporation, having failed to take the proposed action, does
not return the deposited certificates or release the transfer restrictions
imposed on uncertificated shares within 60 days after the date set for
demanding payment.
(b) A dissenter waives his or her right to demand payment under this Code
section and is deemed to have accepted the corporation's offer unless he or she
notifies the corporation of his or her demand in writing
A-5
<PAGE> 42
under subsection (a) of this Code section within 30 days after the corporation
offered payment for his or her shares, as provided in Code Section 14-2-1325.
(c) If the corporation does not offer payment within the time set forth in
subsection (a) of Code Section 14-2-1325:
(1) The shareholder may demand the information required under
subsection (b) of Code Section 14-2-1325, and the corporation shall provide
the information to the shareholder within ten days after receipt of a
written demand for the information; and
(2) The shareholder may at any time, subject to the limitations period
of Code Section 14-2-1332, notify the corporation of his own estimate of
the fair value of his shares and the amount of interest due and demand
payment of his estimate of the fair value of his shares and interest due.
PART 3
JUDICIAL APPRAISAL OF SHARES
14-2-1330. COURT ACTION.
(a) If a demand for payment under Code Section 14-2-1327 remains unsettled,
the corporation shall commence a proceeding within 60 days after receiving the
payment demand and petition the court to determine the fair value of the shares
and accrued interest. If the corporation does not commence the proceeding within
the 60 day period, it shall pay each dissenter whose demand remains unsettled
the amount demanded.
(b) The corporation shall commence the proceeding, which shall be a nonjury
equitable valuation proceeding, in the superior court of the county where a
corporation's registered office is located. If the surviving corporation is a
foreign corporation without a registered office in this state, it shall commence
the proceeding in the county in this state where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
corporation was located.
(c) The corporation shall make all dissenters, whether or not residents of
this state, whose demands remain unsettled parties to the proceeding, which
shall have the effect of an action quasi in rem against their shares. The
corporation shall serve a copy of the petition in the proceeding upon each
dissenting shareholder who is a resident of this state in the manner provided by
law for the service of a summons and complaint, and upon each nonresident
dissenting shareholder either by registered or certified mail or by publication,
or in any other manner permitted by law.
(d) The jurisdiction of the court in which the proceeding is commenced
under subsection (b) of this Code section is plenary and exclusive. The court
may appoint one or more persons as appraisers to receive evidence and recommend
decision on the question of fair value. The appraisers have the powers described
in the order appointing them or in any amendment to it. Except as otherwise
provided in this chapter, Chapter 11 of Title 9, known as the "Georgia Civil
Practice Act," applies to any proceeding with respect to dissenters' rights
under this chapter.
(e) Each dissenter made a party to the proceeding is entitled to judgment
for the amount which the court finds to be the fair value of his shares, plus
interest to the date of judgment.
14-2-1331. COURT COSTS AND COUNSEL FEES.
(a) The court in an appraisal proceeding commenced under Code Section
14-2-1330 shall determine all costs of the proceeding, including the reasonable
compensation and expenses of appraisers appointed by the court, but not
including fees and expenses of attorneys and experts for the respective parties.
The court shall assess the costs against the corporation, except that the court
may assess the costs against all or some of the dissenters, in amounts the court
finds equitable, to the extent the court finds the dissenters acted arbitrarily,
vexatiously, or not in good faith in demanding payment under Code Section
14-2-1327.
A-6
<PAGE> 43
(b) The court may also assess the fees and expenses of attorneys and
experts for the respective parties, in amounts the court finds equitable:
(1) Against the corporation and in favor of any or all dissenters if
the court finds the corporation did not substantially comply with the
requirements of Code Sections 14-2-1320 through 14-2-1327; or
(2) Against either the corporation or a dissenter, in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously, or not in good faith
with respect to the rights provided by this article.
(c) If the court finds that the services of attorneys for any dissenter
were of substantial benefit to other dissenters similarly situated, and that the
fees for those services should not be assessed against the corporation, the
court may award to these attorneys reasonable fees to be paid out of the amounts
awarded the dissenters who were benefited.
14-2-1332. LIMITATION OF ACTIONS.
No action by any dissenter to enforce dissenters' rights shall be brought
more than three years after the corporate action was taken, regardless of
whether notice of the corporate action and of the right to dissent was given by
the corporation in compliance with the provisions of Code Section 14-2-1320 and
Code Section 14-2-1322.
A-7
<PAGE> 44
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER,
THE PARENT AND THE ULTIMATE PARENT
1. Directors and Executive Officers of the Purchaser. The name, business
address, present principal occupation or employment and material occupations,
positions, offices or employments during the last five years of each director
and executive officer of the Purchaser and certain other information are set
forth below. All directors and executive officers listed below are citizens of
the United States, except that Jean-Yves Charlier is a citizen of Belgium, and
William J. Mulcahy is a citizen of the United Kingdom, and R. Sean Parkinson is
a citizen of the United Kingdom and a Resident Alien in the United States.
TABLE 1
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL OCCUPATIONS, POSITIONS,
NAME AND ADDRESS OFFICES OR EMPLOYMENT HELD DURING THE LAST FIVE YEARS
- ---------------- -------------------------------------------------------------------------------
<S> <C> <C>
Jean-Yves Charlier 1996-Present President of Equant Integration Services Division of
(Director and President) Equant N.V.
Equant Integration Services 1989-1996 Vice President of Network Integration Business
Wexham Springs, International, Wang International Limited
Framewood Road, Wexham
Slough, SL3 6PH, UK
William J. Mulcahy 1998-Present Vice President Financing Administration, Equant
(Director) Integration Services Division of Equant N.V.
Equant Integration Services 1997-1998 Acting Finance Director, Morse Group
Wexham Springs,
Framewood Road, Wexham 1995-1997 Director of Information Systems and Audit, APV plc
Slough, SL3 6PH, UK 1992-1995 Finance Director, British World Aviation Ltd.
Richard H. Blaustein 1997-Present Vice President of Equant Integration Services, Inc.
(Director and Vice President) 1996 Managing Vice President, Consulting Division, Gartner
Group
Equant Integration Services, Inc. 1989-1996 Senior Vice President, CAP Gemini America
3 Park Avenue, 25th Floor
New York, New York 10016
R. Sean Parkinson 1997-Present Senior Vice President Strategic Business Unit, Equant
(Vice President) Integration Services, Inc.
Equant Integration Services, Inc. 1993-1997 General Manager Northern Europe, International
3 Park Avenue, 25th Floor Telecommunications Services
New York, New York 10016
Norman R. Wentworth 1997-Present Chief Financial Officer, Equant Integration Services,
Inc.
(Treasurer and Secretary) 1994-1997 Chief Operating Officer/Chief Financial Officer, Letts
Equant Integration Services, Inc. of London, Ltd.
45 Orville Drive
Bohemia, New York 11716
</TABLE>
2. Directors and Executive Officers of the Parent. The name, business
address, present principal occupation or employment and material occupations,
positions, offices or employment during the last five years of each director and
executive officer of the Parent and certain other information are set forth
below. Unless otherwise indicated, the business address of each such director
and executive officer is 3100 Cumberland Circle, 12th Floor, Atlanta, Georgia
30339. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to employment with the Parent. All directors and
executive officers listed below are citizens of the United States, except that
John S. Allkins is a citizen of The Netherlands.
I-1
<PAGE> 45
TABLE 2
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL OCCUPATIONS, POSITIONS,
NAME AND ADDRESS OFFICES OR EMPLOYMENT HELD DURING THE LAST FIVE YEARS
- ---------------- -------------------------------------------------------------------------------
<S> <C> <C>
Didier J. Delepine 1998-Present President and Chief Executive Officer of Equant N.V.
(Director and President) 1995-1997 President and Chief Executive Officer of Equant Network
Services Division of Equant N.V.
John S. Allkins 1995-Present Chief Financial Officer of Equant N.V.
(Director and Treasurer) 1991-1995 Finance Director -- British Telecommunications, plc.
Equant N.V.
21-23 Gatwickstraat
1043 GL Amsterdam
Sloterdijk
The Netherlands
Douglas L. Gilstrap 1998-Present Chief Operating Officer of Equant Network Services
(Director) Division of Equant N.V.
1995-1998 Chief Financial Officer of Equant Network Services
Division of Equant N.V.
1991-1995 Senior Manager of Business Development, SITA
Robert L. Howren 1998-Present Tax Manager -- The Americas for Equant N.V.
(Assistant Treasurer) 1996-1998 Tax Manager -- The Americas for Trelleborg Corporation
Tax Manager -- Stephen M. Berman and Associates, CPAs
1991-1996
Jody D. Newman 1995-Present General Counsel, Equant Network Services Int'l Corp.
1993-1995 Senior Legal Advisor, SITA
</TABLE>
3. Directors and Executive Officers of the Ultimate Parent. The name,
business address, present principal occupation or employment and material
occupations, positions, offices or employments during the last five years of
each director and executive officer of the Ultimate Parent and certain other
information are set forth below. Unless otherwise indicated, the business
address of each such director and executive officer is Equant, N.V., 21-23
Gatwickstraat, 1043 GL Amsterdam, Sloterdijk, The Netherlands. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
employment with the Ultimate Parent. All directors and executive officers listed
below are citizens of the United States, except that John S. Allkins is a
citizen of The Netherlands and Duncan J. Lewis is a citizen of the United
Kingdom.
TABLE 3
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL OCCUPATIONS, POSITIONS,
NAME AND ADDRESS OFFICES OR EMPLOYMENT HELD DURING THE LAST FIVE YEARS
- ---------------- -------------------------------------------------------------------------------
<S> <C> <C>
Didier J. Delepine 1998-Present President and Chief Executive Officer of Equant N.V.
(Director and President) 1995-1997 President and Chief Executive Officer of Equant
Network Services Division of Equant N.V.
John S. Allkins 1995-Present Chief Financial Officer of Equant N.V.
(Director and Chief Financial 1991-1995 Finance Director -- British Telecommunications
Officer)
Duncan J. Lewis 1999-Present Chief Corporate Development Officer of Equant N.V.
(Director and Vice 1995-1997 Chief Executive Officer, Granada Media Group
President -- Corporate Development) 1991-1995 Chief Executive Officer, Mercury Communications
</TABLE>
I-2
<PAGE> 46
Manually signed facsimile copies of the Letter of Transmittal, properly
completed and duly executed and duly signed, will be accepted. The Letter of
Transmittal, certificates evidencing Shares and any other required documents
should be sent or delivered by each holder of Shares or such holder's broker,
dealer, commercial bank, trust company or other nominee to the Depositary as
follows:
The Depositary for the Offer is:
AMERICAN STOCK TRANSFER & TRUST COMPANY
<TABLE>
<S> <C> <C>
By Mail: Facsimile Transmission: By Hand or
40 Wall Street (for Eligible Institutions Overnight Courier:
46th Floor Only) 40 Wall Street
New York, New York 10005 (718) 234-5001 46th Floor
New York, New York 10005
Confirm Receipt of Facsimile by
Telephone:
(718) 921-8200
</TABLE>
Questions or requests for assistance may be directed to the Information
Agent or to the Dealer Manager at their respective addresses and telephone
numbers set forth below. Additional copies of this Offer to Purchase, the Letter
of Transmittal and the Notice of Guaranteed Delivery may be obtained from the
Information Agent or the Dealer Manager and will be furnished promptly at the
Purchaser's expense. A holder of Shares may also contact his broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
[GEORGESON & COMPANY LOGO]
Wall Street Plaza
New York, New York 10005
Banks & Brokers Call Collect: (212) 440-9800
All Others Call Toll-Free: (800) 223-2064
The Dealer Manager for the Offer is:
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010-3629
Call Toll Free: (800) 646-4543
<PAGE> 1
EXHIBIT (a)(2)
[TECHFORCE LETTERHEAD]
JULY 7, 1999
To Our Shareholders:
I am very pleased to share with you the highlights of the decision by the
Board of Directors of TechForce Corporation (the "Company") to enter into an
Agreement and Plan of Merger with Equant N.V. (a Netherlands corporation), a
global leader in international data network services to multinational
businesses. We believe that the merger transactions are fair to and in the best
interests of our shareholders, including the per share purchase price of $8.50.
The basic terms of the transaction are as follows: on June 30, 1999, the
Company, Equant N.V. and two of its subsidiaries (together, "Equant") entered
into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which
Equant will initiate a tender offer (the "Tender Offer") to acquire all of the
Company's outstanding common stock for $8.50 cash per share, which is an
aggregate cash consideration of $73,350,333. Equant's obligation to complete the
Tender Offer is subject to a requirement that at least a majority of the
Company's outstanding shares are tendered, as well as other conditions. After
completion of the Tender Offer, the Company will merge with a subsidiary of
Equant N.V. (the "Merger"), thereby making the Company a wholly-owned subsidiary
of Equant. Details of the Tender Offer, the Merger and all related matters are
fully described in the enclosed Offer to Purchase made by Equant (the "Offer to
Purchase"). We urge you to read the Offer to Purchase carefully before making
your decision to tender your shares pursuant to the Offer.
YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY DETERMINED THAT THE TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT, INCLUDING THE TENDER OFFER, ARE FAIR TO,
AND IN THE BEST INTERESTS OF, THE COMPANY'S SHAREHOLDERS, AND HAS APPROVED SUCH
TRANSACTIONS. THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS OF THE
COMPANY ACCEPT THE TENDER OFFER AND TENDER THEIR SHARES PURSUANT TO THE TENDER
OFFER.
In arriving at its recommendation, the Board of Directors gave careful
consideration to many factors, including the following:
(a) the terms and conditions of the Merger Agreement, including the amount
and all-cash form of the consideration;
(b) the fact that the $8.50 per Share price represented a premium of
approximately 11.5% over last reported sales price of a share of the Company's
common stock on the Nasdaq National Market of $7.625 per share on June 29, 1999
(the last full trading day prior to the Board's approval of the Tender Offer),
and approximately a 25.2% premium over the Company's prior 90 days' average
stock closing price; and
(c) the opinion of Deutsche Bank Securities Inc. ("Deutsche Bank"), our
financial advisor, that the $8.50 per Share in cash to be received by our
shareholders is fair to such holders from a financial point of view. The opinion
of Deutsche Bank contains a description of the factors considered, the
assumptions made and the scope of review undertaken by Deutsche Bank in
rendering its opinion. THE FULL TEXT OF THE OPINION RECEIVED BY THE COMPANY FROM
DEUTSCHE BANK IS ATTACHED HERETO AND IS FILED AS EXHIBIT (a)(11) TO THE SCHEDULE
14D-9 FILED BY THE COMPANY WITH THE S.E.C. SHAREHOLDERS ARE URGED TO READ SUCH
OPINION IN ITS ENTIRETY.
<PAGE> 2
The Board of Directors recognized that consummation of the Tender Offer and
the Merger will deprive current shareholders of the Company of the opportunity
to participate in the future growth prospects of the Company and, therefore, in
reaching its conclusion to approve the Tender Offer and the Merger, determined
that the historical results of operations and future prospects of the Company
are adequately reflected in the price of $8.50 per Share. In addition, the Board
of Directors considered the possibility that, in the unlikely event the Tender
Offer but not the Merger is consummated, the number of shareholders could be
reduced, which could adversely affect the liquidity and market value of the
Shares.
In light of all the factors set forth above, the Board of Directors
approved the Tender Offer and the Merger. In view of the variety of factors
considered in connection with its evaluation of the Tender Offer and the Merger,
the Board of Directors did not assign relative weights to the specific factors
considered in reaching its decision.
The Offer to Purchase, together with the related materials (including the
Letter of Transmittal) explain the transactions in detail and also provide
instructions on how to tender your shares into the Tender Offer. These documents
set forth the terms and conditions of the Tender Offer and the Merger, and we
urge you to read all the enclosed materials carefully.
On behalf of the Board, we appreciate your support of the Company and your
careful consideration of the Tender Offer and Merger.
On behalf of the Board of Directors,
/s/ Jerrell W. Kee
<PAGE> 1
EXHIBIT (a)(3)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
TECHFORCE CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED JULY 7, 1999
BY
EQUANT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
EQUANT HOLDINGS U.S., INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, AUGUST 3, 1999, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
AMERICAN STOCK TRANSFER & TRUST COMPANY
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or
Overnight Delivery:
40 Wall Street (718) 234-5001
46th Floor 40 Wall Street
New York, New York 10005 Confirm Receipt of 46th Floor
Facsimile by Telephone: New York, New York 10005
(718) 921-8200
</TABLE>
YOU MUST SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE
THE SUBSTITUTE FORM W-9 PROVIDED BELOW.
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN AS SET
FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The names and addresses of the registered holders should be printed, if not
already below, exactly as they appear on the certificates evidencing Shares
("Share Certificates") tendered hereby. The Share Certificates and the Shares
(as defined below) that the undersigned wishes to tender should be indicated in
the appropriate boxes.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- ---------------------------------------------------------------------------------------------------------------------------
NAME(S) & ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) SHARE CERTIFICATE(S) AND SHARE(S) TENDERED
APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST, IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
SHARE OF SHARES NUMBER OF
CERTIFICATE EVIDENCED BY SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
Total Shares
- ---------------------------------------------------------------------------------------------------------------------------
* Need not be completed by shareholders delivering Shares by book-entry through the Depositary.
** Unless otherwise indicated, all Shares evidenced by Share Certificates delivered to the Depositary will be deemed to
have been tendered hereby. See Instruction 4.
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 2
This Letter of Transmittal is to be completed by stockholders, 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 of Shares are to
be made by book-entry transfer into the account of American Stock Transfer &
Trust Company, as Depositary (the "Depositary"), at The Depository Trust Company
("DTC" or the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in Section 3 of the Offer to Purchase (as defined below). Stockholders who
tender Shares by book-entry transfer are referred to herein as "Book-Entry
Stockholders".
Holders of Shares whose Share Certificates are not immediately available or
who cannot deliver their Share Certificates and all other required documents to
the Depositary prior to the Expiration Date (as defined in Section 1 of the
Offer to Purchase), or who cannot complete the procedure for book-entry transfer
on a timely basis, must tender their Shares according to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
2
<PAGE> 3
[ ] CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY
AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER
FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution
Account Number
Transaction Code Number
[ ] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution that Guaranteed Delivery:
[ ] CHECK HERE IF ANY OF YOUR SHARE CERTIFICATES HAS BEEN LOST, DESTROYED OR
STOLEN. SEE INSTRUCTION 11.
------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Share Certificate(s) not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be issued in the name of someone other than
the undersigned or if Shares tendered by book-entry transfer which are not
accepted for payment are to be returned by credit to an account maintained
at a Book-Entry Transfer Facility.
Issue: [ ] Check [ ] Certificate(s) to:
Name
----------------------------------------------------
(PLEASE PRINT)
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9)
- ------------------------------------------------------------
------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Share Certificate(s) not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be sent to someone other than the undersigned
or to the undersigned at an address other than that shown above.
Mail: [ ] Check [ ] Certificate(s) to:
Name
----------------------------------------------------
(PLEASE PRINT)
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9)
------------------------------------------------------------
3
<PAGE> 4
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Equant Acquisition Corp., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Equant Holdings
U.S., Inc., a Delaware corporation ("Parent") and itself a wholly owned
subsidiary of Equant N.V., a company organized under the laws of The Netherlands
(the "Ultimate Parent"), the above-described shares of Common Stock, par value
$0.01 per share (the "Shares"), of TechForce Corporation, a Georgia corporation
(the "Company"), at a purchase price of $8.50 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated July 7, 1999 (the "Offer to Purchase") and
in this Letter of Transmittal (which, as amended or supplemented from time to
time, together 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 its affiliates, the right to purchase all or any
portion of the Shares tendered pursuant to the Offer, receipt of which is hereby
acknowledged.
Subject to, and effective upon, acceptance for payment for the Shares
tendered herewith in accordance with the terms of the Offer, the undersigned
hereby sells, assigns and transfers to, or upon the order of, the Purchaser all
right, title and interest in and to all of the Shares that are being tendered
hereby and any and all dividends, distributions (including additional Shares) or
rights declared, paid or issued with respect to the tendered Shares on or after
the date hereof and payable or distributable to the undersigned on a date prior
to the transfer to the name of the Purchaser or nominee or transferee of the
Purchaser on the Company's stock transfer records of the Shares tendered
herewith (collectively, a "Distribution"), and appoints the Depositary the true
and lawful agent and attorney-in-fact of the undersigned with respect to such
Shares (and any Distribution) with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest) to
(a) deliver such Share Certificates (as defined herein) (and any Distribution)
or transfer ownership of such Shares (and any Distribution) on the account books
maintained by a Book-Entry Transfer Facility, together in either case with
appropriate evidences of transfer, to the Depositary for the account of the
Purchaser, (b) present such Shares (and any Distribution) 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 Distribution), all in
accordance with the terms and subject to the conditions of the Offer.
The undersigned irrevocably appoints designees of the Purchaser as such
stockholder's proxy, with full power of substitution, 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 or other securities issued or issuable in respect of such Shares on or
after the date hereof. Such appointment will be effective when, and only to the
extent that, the Purchaser accepts such Shares for payment. Upon such acceptance
for payment, all prior proxies given by such stockholder with respect to such
Shares (and such other shares and securities) will be revoked without further
action, and no subsequent proxies may be given nor any subsequent written
consents executed (and, if given or executed, will not be deemed effective). The
designees of the Purchaser will 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, by written consent in lieu of any such meeting or
otherwise. The Purchaser reserves the right to require that, in order for Shares
to be deemed validly tendered, immediately upon the Purchaser's payment for such
Shares, the Purchaser must be able to exercise full voting rights with respect
to such Shares.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the Shares (and
any Distribution) tendered hereby and (b) when the Shares are accepted for
payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title to the Shares (and any Distribution), free and clear of all
liens, restrictions, charges and encumbrances, and the same will not be subject
to any adverse claim. The undersigned, upon request, will execute and deliver
any additional documents deemed by the Depositary or the Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby (and any Distribution). In addition, the undersigned
shall promptly remit and transfer to the Depositary for the account of the
Purchaser any and all Distributions in respect of the Shares tendered hereby,
accompanied by appropriate documentation of transfer, and pending such
remittance or appropriate assurance thereof, the Purchaser will be, subject to
applicable law, entitled to all rights and privileges as owner of any such
Distribution and may withhold the
4
<PAGE> 5
entire purchase price or deduct from the purchase price the amount or value
thereof, as determined by the Purchaser in its sole discretion.
All authority herein conferred or agreed to be conferred shall not be
affected by and shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned.
Tenders of 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 (as defined in the Offer to Purchase) and, unless theretofore
accepted for payment by the Purchaser pursuant to the Offer, may also be
withdrawn at any time after September 4, 1999. See Section 4 of the Offer to
Purchase.
The undersigned understands that tenders of Shares pursuant to any of the
procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions set forth in the
Offer, including the undersigned's representation that the undersigned owns the
Shares being tendered.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the check for the purchase price and/or issue or return any
certificate(s) for Shares not tendered or not accepted for payment in the
name(s) of the registered holder(s) appearing under "Description of Shares
Tendered". Similarly, unless otherwise indicated herein under "Special Delivery
Instructions", please mail the check for the purchase price and/or any
certificate(s) for Shares not tendered or not accepted for payment (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under "Description of Shares Tendered". In the event that
both the Special Delivery Instructions and the Special Payment Instructions are
completed, please issue the check for the purchase price and/or any
certificate(s) for Shares not tendered or accepted for payment in the name of,
and deliver such check and/or such certificates to, the person or persons so
indicated. Unless otherwise indicated herein under "Special Payment
Instructions", please credit any Shares tendered herewith by book-entry transfer
that are not accepted for payment by crediting the account at the Book-Entry
Transfer Facility (as defined herein) designated above. The undersigned
recognizes that the Purchaser has no obligation, pursuant to the Special Payment
Instructions, to transfer any Shares from the name(s) of the registered
holder(s) thereof if the Purchaser does not accept for payment any of the Shares
so tendered.
5
<PAGE> 6
SIGN
HERE
ARROW RIGHT
SIGN
HERE
ARROW LEFT
SIGN HERE
AND COMPLETE SUBSTITUTE FORM W-9
X
- --------------------------------------------------------------------------------
X
- --------------------------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Dated:
- --------------------------- , 1999
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
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, please provide the following information
and 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 below)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature
------------------------------------------------------------
Name
----------------------------------------------------------------------------
(PLEASE PRINT)
Title
---------------------------------------------------------------------------
Name of Firm
--------------------------------------------------------------------
Address
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number
--------------------------------------------------
Dated: , 1999
---------------------
6
<PAGE> 7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) of Shares tendered herewith, unless such holder(s) has
completed either the box entitled "Special Payment Instructions" or the box
entitled "Special Delivery Instructions" above, or (b) if such Shares are
tendered for the account of a firm which is a bank, broker, dealer, credit
union, savings association or other entity which is a member in good standing of
the Securities Transfer Agents Medallion Program or by any "eligible guarantor
institution," as such term is defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (each of the foregoing being referred to as an
"Eligible Institution"). In all other cases, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution. See Instruction 5.
2. Delivery of Letter of Transmittal and Share Certificates. This Letter
of Transmittal is to be completed by stockholders 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
Shares into the Depositary's account at the Book-Entry Transfer Facility, as
well as this Letter of Transmittal (or a manually signed facsimile hereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message in connection with the book-entry transfer, 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 such delivery.
Stockholders whose Share Certificates are not immediately available or who
cannot deliver their Share Certificates and all other required documents to the
Depositary prior to the Expiration Date or who cannot complete the procedure for
delivery by book-entry transfer on a timely basis may tender their Shares by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedure set forth in Section 3 of the Offer to
Purchase. Pursuant to such procedure: (i) such tender must be made by or through
an Eligible Institution; (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by the Purchaser,
must be received by the Depositary prior to the Expiration Date; and (iii) the
Share Certificates (or a Book-Entry Confirmation) representing all tendered
Shares, in proper form for transfer, in each case together with the Letter of
Transmittal (or a manually signed facsimile thereof), properly completed and
duly executed, with any required signature guarantees (or, in the case of a
book-entry delivery, an Agent's Message) and any other documents required by
this Letter of Transmittal, must be received by the Depositary within three
Nasdaq National Market trading days after the date of execution of such Notice
of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or a manually signed 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 signed schedule attached hereto.
7
<PAGE> 8
4. Partial Tenders (Not Applicable to Book-Entry Stockholders). If fewer
than all the Shares evidenced by any Share Certificate submitted are to be
tendered, fill in the number of Shares which are to be tendered in the box
entitled "Number of Shares Tendered". In such cases, new Share Certificates for
the Shares that were evidenced by your old Share Certificates, but were not
tendered by you, will be sent to you, unless otherwise provided in the
appropriate box on this Letter of Transmittal, as soon as practicable after the
Expiration Date. All Shares represented by Share Certificates delivered to the
Depositary will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificate(s) without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
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, such persons should so indicate when signing, and proper evidence
satisfactory to the Purchaser of their authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to or
certificates for Shares not tendered or not purchased are to be issued in the
name of a person other than the registered holder(s). Signatures on such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the certificate(s) listed, the certificate(s) must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear on the certificate(s).
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
6. Stock Transfer Taxes. Except as otherwise provided in this Instruction
6, the Purchaser will pay any stock transfer taxes with respect to the transfer
and sale of Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price is to be made to, or if certificate(s) for Shares
not tendered or accepted for payment are to be registered in the name of, any
person other than the registered holder(s), or if tendered certificate(s) 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(s) 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 an exemption therefrom, is submitted.
Except as otherwise provided in this Instruction 6, it will not be
necessary for transfer tax stamps to be affixed to the certificate(s) 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 Shares not tendered or not accepted for
payment are to be issued or returned to, a person other than the signer of this
Letter of Transmittal or if a check and/or such certificates are to be returned
to a person other than the person(s) signing this Letter of Transmittal or to an
address other than that shown in this Letter of Transmittal, the appropriate
boxes on this Letter of Transmittal must be completed. A Book-Entry Stockholder
may request that Shares not accepted for payment be credited to such account
maintained at the Book-Entry Transfer Facility as such Book-Entry Stockholder
may designate under "Special Payment Instructions." If no such instructions are
given, such Shares not accepted for payment will be returned by crediting the
account at the Book-Entry Transfer Facility.
8
<PAGE> 9
8. Waiver of Conditions. Subject to the terms and conditions of the
Merger Agreement (as defined in the Offer to Purchase), the conditions of the
Offer (other than the Minimum Condition (as defined in the Offer to Purchase))
may be waived by the Purchaser in whole or in part at any time and from time to
time in its sole discretion.
9. 31% Backup Withholding; Substitute Form W-9. Under U.S. federal income
tax law, a stockholder 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. 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-9, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-9 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.
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. Requests for Assistance or Additional Copies. Questions or requests
for assistance may be directed to the Dealer Manager or the Information Agent at
their respective addresses and telephone numbers set forth below. Additional
copies of the Offer to Purchase, this Letter of Transmittal and the Notice of
Guaranteed Delivery may also be obtained from the Information Agent or the
Dealer Manager or from brokers, dealers, commercial banks or trust companies.
You may also contact your broker, dealer, commercial bank, trust company or
other nominee for assistance concerning the Offer.
11. Lost, Destroyed or Stolen Certificates. If any certificate
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary. The Depositary's telephone number is (718)
921-8200. The stockholder will then be instructed as to the steps that must be
taken in order to replace the certificate. This Letter of Transmittal and
related documents cannot be processed until the procedures for replacing lost or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
HEREOF), PROPERLY COMPLETED AND DULY EXECUTED TOGETHER WITH CERTIFICATES OR
CONFIRMATION OF BOOK-ENTRY TRANSFER OR THE NOTICE OF GUARANTEED DELIVERY, AND
ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE
EXPIRATION DATE.
9
<PAGE> 10
<TABLE>
<C> <S> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME:
- -------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR "TIN" IN THE Social Security Number
FORMW-9 BOX AT THE RIGHT AND CERTIFY BY SIGNING OR
AND DATING BELOW. Employer Identification Number
------------------------------
-----------------------------------------------------------------------------------------
DEPARTMENT OF THE TREASURY PART 2 -- Certification -- Under penalties of perjury, I certify that:
INTERNAL REVENUE SERVICE (1) The number shown on this form is my correct TIN (or I am waiting for a number to
be issued to me) and
PAYER'S REQUEST FOR TAXPAYER (2) I am not subject to backup withholding because: (a) I am exempt from backup
IDENTIFICATION NUMBER ("TIN") withholding, or (b) I have not been notified by the Internal Revenue Service (the
"IRS") that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding.
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because
of under-reporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding you
received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out such Item (2).
- ---------------------------------------------------------------------------------------------------------------------------
SIGN HERE SIGNATURE ------------------------- PART 3 --
Awaiting TIN [ ]
ARROW RIGHT DATE --------------------------- , 1999
- -------------------------------------------------------------------------------------------------------------------------------
</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 THE SUBSTITUTE 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.
Signature
- ---------------------------------------------------
Date , 1999
------------------------------
10
<PAGE> 11
The Information Agent for the Offer is
[GEORGESON & COMPANY LOGO]
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect: (212) 440-9800
All Others Call Toll Free: (800) 223-2064
The Dealer Manager for the Offer is:
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010-3629
Call Toll Free: (800) 646-4543
<PAGE> 1
EXHIBIT (a)(4)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
TECHFORCE CORPORATION
As set forth in Section 3 of the Offer to Purchase described below, this
Notice of Guaranteed Delivery, or one substantially equivalent hereto, must be
used to accept the Offer (as defined below) if certificates evidencing Shares
(as defined below) are not immediately available, or the certificates for Shares
and all other required documents cannot be delivered to American Stock Transfer
& Trust Company (the "Depositary") prior to the Expiration Date (as defined in
Section 1 of the Offer to Purchase), or if the procedure for delivery by
book-entry transfer cannot be completed on a timely basis. This instrument may
be delivered by hand or transmitted by facsimile transmission or mailed to the
Depositary. See Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
AMERICAN STOCK TRANSFER & TRUST COMPANY
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or
Overnight Delivery:
40 Wall Street (718) 234-5001
46th Floor 40 Wall Street
New York, New York 10005 46th Floor
Confirm Receipt of Facsimile New York, New York 10005
by Telephone:
(718) 921-8200
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER
THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. DELIVERIES TO THE
COMPANY WILL NOT BE FORWARDED TO THE DEPOSITARY AND THEREFORE WILL NOT
CONSTITUTE VALID DELIVERY. DELIVERIES TO THE BOOK-ENTRY TRANSFER FACILITY WILL
NOT CONSTITUTE VALID DELIVERY TO THE DEPOSITARY.
This form 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
(as defined in the Offer to Purchase) under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box in the Letter of Transmittal.
The Eligible Institution which completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal or an
Agent's Message and certificates evidencing Shares to the Depositary within the
time shown herein. Failure to do so could result in a financial loss to such
Eligible Institution.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tender(s) to Equant Acquisition Corp., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Equant Holdings
U.S., Inc., a Delaware corporation (the "Parent") and itself a wholly owned
subsidiary of Equant N.V., a company organized under the laws of The Netherlands
(the "Ultimate Parent"), upon the terms and subject to the conditions set forth
in the Offer to Purchase dated July 7, 1999 (the "Offer to Purchase"), and in
the related Letter of Transmittal (which, as amended or supplemented from time
to time, together constitute the "Offer"), receipt of which is hereby
acknowledged, the number of shares of Common Stock, par value $0.01 per share
(the "Shares"), of TechForce Corporation, a Georgia corporation (the "Company"),
pursuant to the guaranteed delivery procedure set forth in Section 3 of the
Offer to Purchase.
- --------------------------------------------------------------------------------
Signature(s)
--------------------------------------------------------------------------
Name(s) of Record Holders
--------------------------------------------------------------------------
PLEASE TYPE OR PRINT
Address(es)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ZIP CODE
Area Code and Tel. No(s)
--------------------------------------------------------------------------
Number of Shares
--------------------------------------------------------------------------
Certificate Nos. (if available)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Dated
----------------------------------------, 1999
[ ] Check if Shares will be tendered by book-entry transfer.
Account Number
--------------------------------------------------------------------------
--------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a bank, broker, dealer, credit union,
savings association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program or other entity which is an
"eligible guarantor institution," as such term is defined in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended (each of the foregoing
constituting an "Eligible Institution"), (a) represents that the above named
person(s) "own(s)" the Shares tendered hereby within the meaning of Rule 14e-4
under the Securities Exchange Act of 1934, as amended ("Rule 14e-4"), (b)
represents that such tender of Shares complies with Rule 14e-4, and (c)
guarantees to deliver to the Depositary either the certificates evidencing all
tendered Shares, in proper form for transfer, or to deliver Shares pursuant to
the procedure for book-entry transfer into the Depositary's account at The
Depository Trust Company, together with the Letter of Transmittal (or manually
signed facsimile thereof), properly completed and duly executed, with any
required signature guarantees or an Agent's Message (as defined in the Offer to
Purchase) in the case of a book-entry delivery, and any other required
documents, all within three Nasdaq National Market trading days after the date
hereof.
<TABLE>
<C> <S>
- ------------------------------------------ ------------------------------------------
Name of Firm AUTHORIZED SIGNATURE
Name:
- ------------------------------------------ ------------------------------------------
Address PLEASE TYPE OR PRINT
Title:
- ------------------------------------------ ------------------------------------------
Zip Code
Dated:
- ------------------------------------------ ------------------------------------- , 1999
Area Code and Tel No.
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
<PAGE> 1
EXHIBIT (a)(5)
[CREDIT SUISSE FIRST BOSTON CORPORATION LOGO AND LETTERHEAD]
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TECHFORCE CORPORATION
AT
$8.50 NET PER SHARE
BY
EQUANT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
EQUANT HOLDINGS U.S., INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, AUGUST 3, 1999, UNLESS THE OFFER IS EXTENDED.
July 7, 1999
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Equant Acquisition Corp., a Delaware corporation
(the "Purchaser") and a wholly owned subsidiary of Equant Holdings U.S., Inc., a
Delaware corporation (the "Parent") and itself a wholly owned subsidiary of
Equant N.V., a company organized under the laws of The Netherlands (the
"Ultimate Parent"), to act as Dealer Manager in connection with the Purchaser's
offer to purchase for cash all the outstanding shares of Common Stock, par value
$0.01 per share (the "Shares"), of TechForce Corporation, a Georgia corporation
(the "Company"), at a purchase price of $8.50 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated July 7,1999 (the "Offer to Purchase"), and
in the related Letter of Transmittal (which, as amended or supplemented from
time to time, together constitute the "Offer") enclosed herewith. Holders of
Shares whose certificates for such Shares (the "Share Certificates") are not
immediately available or who cannot deliver their Share Certificates and all
other required documents to the Depositary (as defined below) prior to the
Expiration Date (as defined in the Offer to Purchase), or who cannot complete
the procedures for book-entry transfer on a timely basis, must tender their
Shares according to the guaranteed delivery procedures set forth in Section 3 of
the Offer to Purchase.
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. Please bring the Offer to their attention as promptly as possible.
<PAGE> 2
Enclosed herewith for your information and forwarding to your client are
copies of the following documents:
1. The Offer to Purchase, dated July 7, 1999.
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients. Facsimile copies of the Letter of Transmittal
may be used to tender Shares.
3. The Notice of Guaranteed Delivery for Shares to be used to accept
the Offer if Share Certificates are not immediately available or if such
certificates and all other required documents cannot be delivered to
American Stock Transfer & Trust Company (the "Depositary") by the
Expiration Date or if the procedure for book-entry transfer cannot be
completed by the Expiration Date.
4. The Letter to stockholders of the Company from the Chairman,
President and Chief Executive Officer of the Company, accompanied by the
Company's Solicitation/Recommendation Statement on Schedule 14D-9.
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 for Certification of Taxpayer Identification Number on
Substitute Form W-9.
7. A return envelope addressed to American Stock Transfer & Trust
Company, the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, AUGUST 3, 1999, UNLESS THE OFFER
IS EXTENDED.
Your attention is directed to the following:
1. The tender price is $8.50 per share, net to the seller in cash
without interest thereon.
2. The Offer is made for all of the outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the
Merger Agreement (as defined below) and the transactions contemplated
thereby, including the Offer and the Merger (as defined below), has
determined that the Offer and the Merger are fair to, and in the best
interests of, the holders of Shares and recommends that holders of the
Shares accept the Offer and tender their Shares pursuant to the Offer.
4. The Offer is being made pursuant to the Agreement and Plan of
Merger, dated as of June 30, 1999, by and among the Ultimate Parent, the
Parent, the Purchaser and the Company (the "Merger Agreement"), which
provides that subsequent to the consummation of the Offer, the Purchaser
will merge with and into the Company (the "Merger"). 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 and each Share owned by the Parent, the Purchaser
or any other direct or indirect subsidiary of the Parent or of the Company
and other than Shares, if any, held by stockholders who have not voted in
favor of or consented to the Merger and who have delivered a written demand
for appraisal of such Shares in accordance with the Georgia Business
Corporation Code) will be cancelled, extinguished and converted into the
right to receive $8.50 in cash, without interest thereon.
5. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on August 3, 1999, unless the Offer is extended.
2
<PAGE> 3
6. The Offer is conditioned upon, among other things, (i) there being
validly tendered and not properly withdrawn prior to the expiration of the
Offer, that number of Shares which, together with the Shares owned by the
Parent and the Purchaser constitute more than 50% of the voting power
(determined on a fully diluted basis) and (ii) the expiration or
termination of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not properly withdrawn prior to the expiration of the Offer that
number of Shares which, together with any Shares owned by the Parent, the
Purchaser and the Ultimate Parent, constitutes more than 50% of the voting power
(determined on a fully diluted basis) and (ii) the expiration or termination of
all applicable waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended. The Offer is also subject to other terms
and conditions. See the Introduction and Section 1 and 15 of the Offer to
Purchase.
The Board of Directors of the Company (the "Board of Directors") has
unanimously approved the Merger Agreement (as defined below) and the
transactions contemplated thereby, including the Offer and the Merger (as
defined below), has determined that the Offer and the Merger pursuant thereto
are fair to, and in the best interests of, the Company's stockholders and
recommends that the Company's stockholders accept the Offer and tender their
Shares pursuant to the Offer.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of June 30, 1999 (the "Merger Agreement"), by and among the Ultimate Parent,
the Parent, the Purchaser and the Company. The Merger Agreement provides, among
other things, for the making of the Offer by the Purchaser, and further provides
that, following the completion of the Offer, upon the terms and subject to the
conditions of the Merger Agreement and the GBCC and the DGCL, the Purchaser will
be merged with and into the Company (the "Merger"). Following the Merger, the
Company will continue as the surviving corporation and become a wholly owned
subsidiary of the Parent, and the separate corporate existence of the Purchaser
will cease.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal and any required signature guarantees, or an
Agent's Message (as defined in the Offer to Purchase) in connection with a
book-entry delivery of Shares, and other required documents should be sent to
the Depositary and (ii) either Share Certificates, representing the tendered
Shares should be delivered to the Depositary, or such Shares should be tendered
by book-entry transfer into the Depositary's account maintained at the
Book-Entry Transfer Facility (as described in the Offer to Purchase), all in
accordance with the instructions set forth in the Offer.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or other required documents prior to the
Expiration Date or to comply with the book-entry transfer procedures on a timely
basis, a tender may be effected by following the guaranteed delivery procedures
specified in Section 3 of the Offer to Purchase.
The Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than the Dealer Manager, the Depositary and Georgeson
Shareholder Communications Inc. (the "Information Agent") (as described in the
Offer to Purchase)) for soliciting tenders of Shares pursuant to the Offer. The
Purchaser will, however, upon request, reimburse you for customary clerical and
mailing expenses incurred by you in forwarding any of the enclosed materials to
your clients. The Purchaser will pay or cause to be paid any stock transfer
taxes payable on the transfer of Shares to it, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
3
<PAGE> 4
Any inquiries you may have with respect to the Offer should be addressed to
the Information Agent or the undersigned, at their respective addresses and
telephone numbers set forth on the back cover of the Offer to Purchase.
Additional copies of the enclosed materials may be obtained from the Information
Agent.
Very truly yours,
Credit Suisse First Boston Corporation
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE PARENT, THE ULTIMATE PARENT,
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 ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
4
<PAGE> 1
EXHIBIT (a)(6)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TECHFORCE CORPORATION
AT
$8.50 NET PER SHARE
BY
EQUANT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
EQUANT HOLDINGS U.S., INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, AUGUST 3, 1999, UNLESS THE OFFER IS EXTENDED.
July 7, 1999
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated July 7, 1999
(the "Offer to Purchase"), and the related Letter of Transmittal relating to the
offer by Equant Acquisition Corp., a Delaware corporation (the "Purchaser") and
a wholly owned subsidiary of Equant Holdings U.S., Inc., a Delaware corporation
(the "Parent") and itself a wholly owned subsidiary of Equant N.V., a company
organized under the laws of The Netherlands (the "Ultimate Parent"), to purchase
all of the outstanding shares of Common Stock, par value $0.01 per share (the
"Shares"), of TechForce Corporation, a Georgia corporation (the "Company"), at a
purchase price of $8.50 per Share, net to the seller in cash without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase and in the related Letter of Transmittal (which, as amended or
supplemented from time to time, together constitute the "Offer"). Holders of
Shares whose certificates for such Shares (the "Share Certificates") are not
immediately available or who cannot deliver their Share Certificates and all
other required documents to American Stock Transfer & Trust Company, the
Depositary, prior to the Expiration Date (as defined in the Offer to Purchase),
or who cannot complete the procedures for book-entry transfer on a timely basis,
must tender their Shares according to the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase.
WE ARE 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.
<PAGE> 2
We request instructions as to whether you wish to have us tender on your
behalf any or all of such Shares held by us for your account, pursuant to the
terms and subject to the conditions set forth in the Offer to Purchase.
Your attention is directed to the following:
1. The tender price is $8.50 per share, net to the seller in cash
without interest thereon.
2. The Offer is made for all of the outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the
Merger Agreement (as defined below) and the transactions contemplated
thereby, including the Offer and the Merger (as defined below), has
determined that the Offer and the Merger are fair to, and in the best
interests of, the holders of Shares and recommends that holders of the
Shares accept the Offer and tender their Shares pursuant to the Offer.
4. The Offer is being made pursuant to the Agreement and Plan of
Merger, dated as of June 30, 1999, by and among the Ultimate Parent, the
Parent, the Purchaser and the Company (the "Merger Agreement"), which
provides that subsequent to the consummation of the Offer, the Purchaser
will merge with and into the Company (the "Merger"). 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 and each Share owned by the Parent, the Purchaser
or any other direct or indirect subsidiary of the Parent or of the Company
and other than Shares, if any, held by stockholders who have not voted in
favor of or consented to the Merger and who have delivered a written demand
for appraisal of such Shares in accordance with the Georgia Business
Corporation Code) will be cancelled, extinguished and converted into the
right to receive $8.50 in cash, without interest thereon.
5. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on August 3, 1999, unless the Offer is extended.
6. The Offer is conditioned upon, among other things, (i) there being
validly tendered and not properly withdrawn prior to the expiration of the
Offer that number of Shares which, together with the Shares owned by the
Parent and the Purchaser, constitute more than 50% of the voting power
(determined on a fully diluted basis) and (ii) the expiration or
termination of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.
The Offer is being made solely by the Offer to Purchase and the related
Letter of Transmittal and is being made to all holders of Shares. The Purchaser
is not aware of any state where the making of the Offer is prohibited by
administrative or judicial action pursuant to any valid state statute. If the
Purchaser becomes aware of any valid state statute prohibiting the making of the
Offer or the acceptance of Shares pursuant thereto, the Purchaser will make a
good faith effort to comply with any such state statute. If, after such good
faith effort, the Purchaser cannot comply with such state statute, the Offer
will not be made to, nor will tenders be accepted from or on behalf of, the
holders of Shares in such state. In any jurisdiction where the securities, blue
sky or other laws require the Offer to be made by a licensed broker or dealer,
the Offer shall be deemed to be made on behalf of the Purchaser by Credit Suisse
First Boston Corporation, the Dealer Manager for the Offer, or one or more
registered brokers or dealers that are licensed under the laws of such
jurisdiction.
If you wish to have us tender any or all of the Shares held by us for your
account, please instruct us by completing, executing and returning to us the
instruction form contained in this letter. If you authorize a tender of your
Shares, all such Shares will be tendered unless otherwise specified in such
instruction form. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO
PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE
OFFER.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TECHFORCE CORPORATION
BY
EQUANT ACQUISITION CORP.
The undersigned acknowledge(s) receipt of your letter enclosing the Offer
to Purchase dated July 7, 1999 (the "Offer to Purchase") and the related Letter
of Transmittal pursuant to an offer by Equant Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Equant Holdings U.S., Inc., a
Delaware corporation and itself a wholly owned subsidiary of Equant N.V., a
company organized under the laws of The Netherlands, to purchase all outstanding
shares of Common Stock, par value $0.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation, at a purchase price of $8.50 per Share, net
to the seller in cash without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase and the related Letter of
Transmittal.
This will instruct you to tender 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 to Purchase and in the related Letter of Transmittal
furnished to the undersigned.
<TABLE>
<S> <C>
Number of Shares to be Tendered* SIGN HERE
- ---------------------------------------- Shares ------------------------------------------------
------------------------------------------------
Dated ---------- , 1999 SIGNATURE(S)
------------------------------------------------
PLEASE PRINT NAME(S)
------------------------------------------------
ADDRESS
------------------------------------------------
AREA CODE AND TELEPHONE NUMBER
------------------------------------------------
TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER
</TABLE>
THE METHOD OF DELIVERY OF THIS DOCUMENT IS AT THE OPTION AND RISK OF THE
TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES SUFFICIENT
TIME SHOULD BE ALLOWED TO ASSURE DELIVERY.
THIS FORM MUST BE RETURNED TO THE BROKERAGE FIRM MAINTAINING YOUR ACCOUNT.
- ---------------
* Unless otherwise indicated, it will be assumed that all of your Shares held by
us for your account are to be tendered.
3
<PAGE> 1
EXHIBIT (a)(7)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<C> <S> <C>
- ------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF--
- ------------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, the
first individual on
the account(1)
3. Husband and wife (joint account) The actual owner of
the account or, if
joint funds, either
person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if
the minor is the
only contributor,
the minor(1)
6. Account in the name of guardian or The ward, minor, or
committee for a designated ward, incompetent
minor, or incompetent person person(3)
7. a. The usual revocable savings The grantor-
trust account (grantor is also trustee(1)
trustee)
b. So-called trust account that is The actual owner(4)
not a legal or valid trust
under State law
8. Sole proprietorship account The Owner(4)
- ------------------------------------------------------------
- ------------------------------------------------------------
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
- ------------------------------------------------------------
9. A valid trust, estate, or pension The legal entity
trust (Do 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 or The organization
educational organization account
12. Partnership account held in the The partnership
name of the partnership
13. Association, club or other tax- The organization
exempt organization
14. A broker or registered nominee The broker or
nominee
15. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State or
local government, school district
or prison) that receives
agricultural program payments
- ------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show your individual name. You may also enter your business name. You may
use either your Social Security Number or your Employer Identification
Number.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
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 (the "IRS") and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding all payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), or an individual retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S., or
a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a) of the Code.
- An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1) of the Code.
- An entity registered at all times 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 of
the Code.
- 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 of the Code.)
- Payments described in section 6049(b)(5) of the Code to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451 of the Code.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Exempt payees above should file Form W-9 to avoid possible erroneous
withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR TAXPAYER IDENTIFICATION
NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE FORM AND
RETURN IT TO THE PAYER. IF YOU ARE A NON-RESIDENT ALIEN OR A FOREIGN ENTITY NOT
SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED INTERNAL REVENUE FORM
W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments other than interest, dividends, and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see Sections 6041, 6041A(a), 6045, and 6050A and 6050N
of the Code and the regulations promulgated therein.
PRIVACY ACT NOTICE--Section 6109 requires most recipients of dividends, interest
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividends 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.
<PAGE> 1
Exhibit (a)(8)
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer (as defined below) is made solely by the Offer
to Purchase, dated July 7, 1999, and the related Letter of Transmittal, and any
amendments or supplements thereto, and is being made to all holders of Shares.
The Offer is not being made to (nor will tenders be accepted from or on behalf
of) holders of Shares residing in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, Purchaser (as defined below) may in its discretion take
such actions as it may deem necessary to make the Offer in any jurisdiction and
extend the Offer to holders of Shares in such jurisdiction. In any jurisdiction
where 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
Purchaser by Credit Suisse First Boston Corporation ("Credit Suisse First
Boston" or the "Dealer Manager") or one or more registered brokers or dealers
licensed under the laws of such jurisdictions.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
of
TECHFORCE CORPORATION
at
$8.50 NET PER SHARE
by
EQUANT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY
OF
EQUANT HOLDINGS U.S., INC.
Equant Acquisition Corp., a Delaware corporation ("Purchaser") and a
wholly owned subsidiary of Equant Holdings U.S., Inc., a Delaware corporation
("Parent") and itself an indirect wholly owned subsidiary of Equant N.V., a
company organized under the laws of The Netherlands ("Ultimate Parent"), is
offering to purchase all of the outstanding common shares (the "Shares") of
TechForce Corporation (the "Company") at $8.50 per Share, net to the seller in
cash, without interest thereon, on the terms and subject to the conditions set
forth in the Offer to Purchase dated July 7, 1999 (the "Offer to Purchase") and
in the related Letter of Transmittal (which together, as either may be amended
or supplemented from time to time, constitute the "Offer"). Tendering
shareholders who have Shares registered in their name and who tender directly
will not be charged brokerage fees or commissions or, subject to Instruction 6
of the Letter of Transmittal, transfer taxes on the purchase of Shares pursuant
to the Offer. Shareholders holding Shares through their broker or bank are urged
to consult them as to whether they charge any service fees. Following the Offer,
the Purchaser intends to effect the Merger described below.
<PAGE> 2
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, AUGUST 3, 1999, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the Expiration Date that number of
Shares which, together with any Shares then owned by Ultimate Parent, Parent and
their respective subsidiaries, constitutes a majority of the Shares outstanding
on a fully diluted basis on the date of purchase (the "Minimum Condition"). The
Offer is also subject to certain other conditions set forth in the Offer to
Purchase. See the Introduction and Sections 1, 11 and 15 of the Offer to
Purchase.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of June 30, 1999 (the "Merger Agreement"), by and among Ultimate Parent,
Parent, Purchaser and the Company. The Merger Agreement provides that, among
other things, Purchaser will make the Offer and, as promptly as practicable
following the consummation of the Offer and the satisfaction or waiver of
certain conditions set forth in the Merger Agreement and in accordance with
relevant provisions of the Georgia Business Corporation Code ("GBCC") and the
Delaware General Corporation Law ("DGCL"), Purchaser will merge with and into
the Company (the "Merger"). On consummation of the Merger, the Company will
continue as the surviving corporation and will be 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 by the Company as treasury stock or by any subsidiary of the Company
or Ultimate Parent, Parent or Purchaser or any subsidiary of Ultimate Parent,
Parent or Purchaser and other than Shares held by shareholders who have properly
exercised their dissenters' rights under the GBCC) will be converted into the
right to receive cash in an amount equal to the price per Share paid pursuant to
the Offer, without interest (and less any required withholding taxes). The
Merger Agreement is more fully described in Section 11 of the Offer to Purchase.
The Board of Directors of the Company has unanimously determined that the
Offer and the Merger are fair to, and in the best interest of, the Company and
its shareholders, has approved the Offer and the Merger and recommends that the
Company's shareholders accept the Offer and tender their Shares pursuant to the
Offer.
Purchaser may, and may be required to, subject to the terms of the Merger
Agreement, extend the Offer. Any such extension will be followed as promptly as
practicable by public announcement thereof no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date.
The Offer is subject to certain conditions set forth in the Offer to
Purchase. If any such condition is not satisfied, Purchaser may, subject to
certain terms of the Merger Agreement, (a) terminate the Offer and not accept
for payment or pay for any such Shares and return all tendered Shares to
tendering shareholders or (b) waive all unsatisfied conditions (other than
Minimum Condition) and accept for payment and pay for all Shares validly
tendered and not properly withdrawn prior to the Expiration Date or (c) extend
the Offer and, subject to the right of the shareholders to withdraw Shares until
the Expiration Date as set forth below, retain the Shares that have been
tendered during the period for which the Offer is extended.
For purposes of the Offer, Purchaser shall be deemed to have accepted for
payment (and thereby purchased) Shares validly tendered and not properly
withdrawn as, if and when Purchaser gives oral or written notice to Depositary
(as defined in the Offer to Purchase) of its acceptance of such Shares for
payment pursuant to the Offer. In all cases, on the terms and subject to the
conditions of the Offer, payment for Shares purchased pursuant to the Offer will
be made by deposit of the purchase price therefor with the Depositary, which
will act as agent for tendering shareholders for the purpose of receiving
payment from Purchaser and transmitting payment to validly tendering
shareholders. Payment for Shares
<PAGE> 3
accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (i) certificates for such Shares (or timely
confirmation of a book-entry transfer of such Shares into the Depositary's
account at the Book-Entry Transfer Facility (as defined in the Offer to
Purchase)), (ii) a Letter of Transmittal (or facsimile thereof) properly
completed and duly executed with all the required signature guarantees or, in
the case of book-entry transfer, an Agent's Message (as defined in the Offer to
Purchase), and (iii) any other documents required by the Letter of Transmittal.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Tuesday, August 3, 1999, unless and until Purchaser shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date at which the Offer, as so
extended by the Purchaser, shall expire.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions set forth in the Merger Agreement, including, if required,
the approval of the Merger by the requisite vote of the shareholders of the
Company. The shareholder vote necessary to approve the Merger is the affirmative
vote of the holders of a majority of the issued and outstanding Shares, voting
as a single class. If the Minimum Condition is satisfied and Purchaser purchases
Shares pursuant to the Offer, Purchaser will be able to effect the Merger
without the affirmative vote of any other shareholder. If Purchaser acquires at
least 90% of the outstanding Shares pursuant to the Offer or otherwise,
Purchaser will be able to effect the Merger pursuant to the "short-form" merger
provisions of Section 14-2-1104 of the GBCC, without any action by any other
shareholder. In that event, Purchaser intends to effect the Merger as promptly
as practicable following the purchase of Shares in the Offer.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE TO BE
PAID FOR THE SHARES PURSUANT TO THE OFFER, REGARDLESS OF ANY EXTENSION OF THE
OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. NO INTEREST WILL BE PAID ON THE
CONSIDERATION TO BE PAID IN THE MERGER TO SHAREHOLDERS WHO FAIL TO TENDER THEIR
SHARES PURSUANT TO THE OFFER, REGARDLESS OF ANY DELAY IN EFFECTING THE MERGER OR
MAKING SUCH PAYMENT.
Subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Securities and Exchange Commission, the Purchaser may, under
certain circumstances, (i) extend the period of time during which the Offer is
open and thereby delay acceptance for payment of and the payment for any Shares
by giving oral or written notice of such extension to the Depositary and (ii)
amend the Offer in any other respect by giving oral or written notice of such
amendment to the Depositary. Any extension, delay, waiver, amendment or
termination of the Offer will be followed as promptly as practicable by a public
announcement thereof, the announcement in the case of an extension to be issued
no later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date. During any such extension, all Shares
previously tendered and not properly withdrawn will remain subject to the Offer,
subject to the right of a tendering shareholder to withdraw such shareholder's
Shares.
Tenders of Shares made pursuant to the Offer may be withdrawn at any time
prior to the Expiration Date. Thereafter, such tenders are irrevocable, except
that they also may be withdrawn at any time after September 4, 1999, unless
theretofore accepted for payment as provided in the Offer to Purchase. For a
withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth in the Offer to Purchase and must specify the
name of the person who tendered the Shares to be withdrawn, the number of Shares
to be withdrawn and the name of the registered holders of the Shares, if
different from the person who tendered the Shares. If certificates evidencing
the Shares to be withdrawn have been delivered or otherwise identified to the
Depositary, a signed notice of withdrawal with signatures guaranteed by an
Eligible Institution must be submitted prior to the release of such Shares
(except in the case of Shares tendered by an Eligible Institution (as defined in
the Offer to Purchase)). In addition, such notice must specify, in the case of
Shares tendered by delivery of certificates, the name of the registered holder
(if
<PAGE> 4
different from that of the tendering shareholder) and the serial numbers shown
on the particular certificates evidencing the Shares to be withdrawn or, in the
case of Shares tendered by book-entry transfer, the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Shares.
The information required to be disclosed by paragraph (e)(l)(vii) of Rule
14d-6 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 Purchaser with the Company's shareholder 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 will be
mailed to record holders of Shares whose names appear on the Company's
shareholder lists and will be furnished to brokers, banks and similar persons
whose names, or the names of whose nominees, appear on the shareholder list or,
if applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial Share owners.
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.
Any questions or requests for assistance or for additional copies of the
Offer to Purchase, the related Letter of Transmittal and other tender offer
materials may be directed to the Information Agent or the Dealer Manager as set
forth below, and copies will be furnished promptly at Purchaser's expense.
Neither Parent, Ultimate Parent nor Purchaser will pay any fees or commissions
to any broker or dealer or any other person (other than the Dealer Manager, the
Depositary and the Information Agent) in connection with the solicitation of
tenders of Shares pursuant to the Offer.
<PAGE> 5
The Information Agent for the Offer is:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
Wall Street Plaza
New York, New York 10005
Banks and Brokers
Call Collect: (212) 440-9800
All Others Call Toll Free: (800) 223-2064
The Dealer Manager for the Offer is:
[CREDIT SUISSE FIRST BOSTON CORPORATION LOGO]
Eleven Madison Avenue
New York, New York 10010-3629
Call Toll Free: (800) 646-4543
July 7, 1999
<PAGE> 1
EXHIBIT (a)(9)
TECHFORCE CORPORATION
OPTION ELECTION FORM
This Option Election Form relates to options to purchase common stock
of TechForce Corporation ("TechForce") pursuant to its 1994 Incentive Stock
Option Plan ("1994 Plan") and its 1995 Stock Incentive Plan (the "1995 Plan").
This form authorizes the Company to exercise your options and pay you any
difference between your exercise price and $8.50 per share in connection with
the transactions between TechForce and Equant N.V. (and its subsidiaries)
pursuant to the Agreement and Plan of Merger dated June 30, 1999 (the "Merger").
In connection with the Merger, under the 1994 Plan and the 1995 Plan,
the undersigned agrees and acknowledges that:
1994 PLAN -- all unvested options will be accelerated in connection with the
Merger, and you elect by your signature below to exercise all outstanding
options under the 1994 Plan.
1995 PLAN -- for all outstanding options (vested or unvested) under the 1995
Plan, you will receive in cash an amount equal to the difference between $8.50
and the exercise price for each option share (less any applicable withholding
taxes) and such option shares will be cancelled.
<TABLE>
<CAPTION>
Number of option Total exercise price
shares exercisable at for option shares
less than $8.50 per exercisable at less
share than $8.50 per Total value of option shares Excess amount payable to
share at $8.50 per share you for option shares
<S> <C> <C> <C>
*See attached account *See attached
statement for details account statement
for details
</TABLE>
The undersigned option-holder acknowledges and agrees that he/she will
receive only the net amount of: $8.50 per option share exercised or cancelled
(under all option plans) minus the applicable exercise price per share. The
undersigned agrees that in the event the transactions contemplated by the
Merger fail to close, the acceleration or cancellation of any options and this
Option Election Form shall be void and of no further force or effect.
Signature:
---------------------------
Name (Please Print):
-----------------
Date:
--------------------------------
<PAGE> 1
EXHIBIT (a)(10)
EQUANT TO ACQUIRE TECHFORCE CORP. FOR $73.4 MILLION
-- Purchase Positions Equant to Capture Bigger Piece of Growing Market for
International Data Services --
ATLANTA, GA and CLEARWATER, Fla., (June 30, 1999) -- Equant (NYSE: ENT; Paris
Bourse: EQU) and TechForce Corp. (NASDAQ: TFRC) today said Equant is acquiring
TechForce to strengthen Equant's position as the leading provider of seamless
international data network services to multinational businesses. The purchase
expands Equant's ability to provide one-stop shopping for global data
communications services by giving it additional router management, network
integration and desktop services capabilities in the United States.
Equant will complete the US $73.4-million acquisition by paying US $8.50 per
share in cash for TechForce's common stock and stock options.
The purchase is a natural extension of Equant's extensive portfolio of managed
data services, as TechForce provides similar router management, network
integration and desktop services capabilities that strengthen Equant's current
offering. The acquisition is especially important for Equant's operations in the
United States where TechForce's extensive engineering force will support the
current high rate of demand for managed data services. Providing these
capabilities on a global scale is essential to ensuring multinational businesses
get fast and reliable access to the Equant network.
"In today's global marketplace, businesses demand seamless connectivity and the
highest quality support worldwide," said Didier J. Delepine, Equant's president
and CEO. "This acquisition is of immense benefit to Equant's multinational
customers and of great value to our shareholders because it enhances Equant's
stated objective of fulfilling customers' communications requirements, right
down to the desktop anywhere in the world."
John A. Koehler, president and CEO of TechForce, said, "We welcome the
opportunity to join our forces with those of Equant. An immediate benefit to
TechForce's existing customers will be our ability to support their
international operations. The deal will bring substantial benefits to our
customers, our suppliers and our employees, and we believe our shareholders will
find Equant's offer attractive."
Equant's acquisition of TechForce brings together two dynamic growth companies
with similar corporate cultures and expertise. Koehler has agreed to remain with
the company to assist with the transition.
After the purchase, Equant will:
Remain the world's leading provider of seamless international data network
services for multinational businesses provided on its network reaching key
business centers in 220 countries and territories.
<PAGE> 2
Continue to provide unmatched local support in 145 countries for its
managed data network services.
More than double its router management, network integration and desktop
services capabilities in the United States, which reinforces Equant's
position as the only truly global provider of end-to-end services around
the world - including the only fully managed global wide area network (WAN)
for businesses worldwide.
About Equant
Equant operates the world's largest data network in terms of geographic
coverage, which extends to key business centers in over 220 countries and
territories. Using its network, Equant has established itself as a leading
provider of managed data network services, end-to-end, for multinational
businesses worldwide - including over 20 percent of the Global 1,000. Equant
also provides network design and integration services; equipment installation;
maintenance and support services; and software development. See www.equant.com
for more information.
About TechForce
TechForce, a provider of network support solutions, offers a portfolio of
services for the life cycle support of multivendor networks (LAN/WAN
internetworking, IBM internetworking, and custom personal computer support). The
company's internetworking services, branded under the TechCaresm name, include
consulting, network management, integration, and maintenance. TechForce's
desktop services provide repairs to extended warranty retailers and
manufacturers of personal computers and peripherals. In addition, TechForce
sells and leases new and refurbished networking equipment. TechForce is
headquartered in Clearwater, Fla. More information about TechForce can be
obtained by calling 727.533.3600 or by accessing www.techforce.com.
This press release contains forward-looking statements, forecasts and
predictions that involve risks and uncertainties. Actual results could differ
materially from those anticipated in this press release as a result of many
factors including the failure of the discussed acquisition to close as well as
the risks discussed in Equant's and TechForce's reports filed from time to time
with the SEC.
<PAGE> 1
DEUTSCHE BANC ALEX. BROWN DEUTSCHE BANK LOGO
Deutsche Bank Securities, Inc.
130 Liberty Street
New York, NY 10006
June 30, 1999
Board of Directors
TechForce Corporation
5741 Rio Vista Drive
Clearwater, FL 33760
Gentlemen:
Deutsche Bank Securities Inc. ("Deutsche Bank") has acted as financial advisor
to TechForce Corporation ("TechForce") in connection with the proposed
acquisition of TechForce by Equant Holdings U.S., Inc. ("Equant") pursuant to
the Agreement and Plan of Merger, dated as of June 30, 1999, among TechForce,
Equant N.V., Equant and Equant Acquisition Corp., a wholly owned subsidiary of
Equant ("Equant Sub") (the "Merger Agreement"), which provides, among other
things, for a cash tender by Equant Sub (the "Tender Offer") for all outstanding
shares of common stock, par value $0.01 per share of TechForce ("TechForce
Common Stock") at a price of $8.50 in cash per share (the "Tender Offer
Consideration"), and for a subsequent merger of Equant Sub with and into
TechForce (the "Merger"), as a result of which TechForce will become a wholly
owned subsidiary of Equant and each outstanding share of TechForce Common Stock
(other than shares held directly or indirectly by TechForce and shares as to
which dissenters' rights have been perfected) will be converted into the right
to receive $8.50 in cash per share (together with the Tender Offer
Consideration, the "Consideration"). The terms and conditions of the Tender
Offer and Merger (together, the "Transaction") are more fully set forth in the
Merger Agreement.
You have requested Deutsche Bank's opinion, as investment bankers, as to the
fairness, from a financial point of view, of the Consideration.
In connection with Deutsche Bank's role as financial advisor to TechForce, and
in arriving at its opinion, Deutsche Bank has reviewed certain publicly
available financial and other information concerning TechForce and certain
internal analyses and other information furnished to it by TechForce. Deutsche
Bank has also held discussions with members of the senior management of
TechForce regarding the businesses and prospects of TechForce. In addition,
Deutsche Bank has (i) reviewed the reported prices and trading activity for
TechForce Common Stock, (ii) compared certain financial and stock market
information for TechForce with similar information for certain other companies
whose securities are publicly traded, (iii) reviewed the financial terms of
certain recent business combinations which it deemed comparable in whole or in
part, (iv) reviewed the terms of the Merger Agreement and certain related
documents, and (v) performed such other studies and analyses and considered such
other factors as it deemed appropriate.
Deutsche Bank has not assumed responsibility for independent verification of,
and has not independently verified, any information, whether publicly available
or furnished to it, concerning TechForce, including, without limitation, any
financial information, forecasts or projections considered in connection with
the rendering of its opinion. Accordingly, for purposes of its opinion, Deutsche
Bank has assumed and relied upon the accuracy and completeness of all such
information and Deutsche Bank has not conducted a physical inspection of any of
the properties or assets, and has not prepared or obtained any independent
evaluation or appraisal of any of the assets or liabilities, of TechForce. With
respect to the financial forecasts and projections made available to Deutsche
Bank and used in its analyses, Deutsche Bank has assumed that they have been
reasonably prepared on bases reflecting the best currently available estimates
and judgments of the management of the TechForce, as to the matters covered
thereby. In rendering its opinion,
<PAGE> 2
Deutsche Bank Logo
TechForce Corporation
June 30, 1999
Page 2
Deutsche Bank expresses no view as to the reasonableness of such forecasts and
projections or the assumptions on which they are based and notes that the
projections relate solely to business independent of that controlled by Equant
or Equant N.V. Moreover, this opinion does not consider the possible effect of
the award of any new contracts that could materially impact the financial
projections provided by the management of TechForce. Deutsche Bank's opinion is
necessarily based upon economic, market and other conditions as in effect on,
and the information made available to it as of, the date hereof.
For purposes of rendering its opinion, Deutsche Bank has assumed that, in all
respects material to its analysis, the representations and warranties of
TechForce, Equant Sub, Equant N.V. and Equant contained in the Merger Agreement
are true and correct, TechForce, Equant Sub, Equant N.V. and Equant will each
perform all of the covenants and agreements to be performed by it under the
Merger Agreement and all conditions to the obligations of each of TechForce,
Equant Sub, Equant N.V. and Equant to consummate the Transaction will be
satisfied without any waiver thereof. Deutsche Bank has also assumed that all
material governmental, regulatory or other approvals and consents required in
connection with the consummation of the Transaction will be obtained and that in
connection with obtaining any necessary governmental, regulatory or other
approvals and consents, or any amendments, modifications or waivers to any
agreements, instruments or orders to which either TechForce, Equant N.V., or
Equant is a party or is subject or by which it is bound, no limitations,
restrictions or conditions will be imposed or amendments, modifications or
waivers made that would have a material adverse effect on TechForce, Equant N.V.
or Equant.
This opinion is addressed to, and for the use and benefit of, the Board of
Directors of TechForce and is not a recommendation to the stockholders of
TechForce to approve the Transaction. This opinion is limited to the fairness,
from a financial point of view, of the Consideration. Deutsche Bank expresses no
opinion as to the merits of the underlying decision by TechForce to engage in
the Transaction.
Deutsche Bank will be paid a fee for its services as financial advisor to
TechForce in connection with the Transaction, a substantial portion of which is
contingent upon consummation of the Transaction. We are an affiliate of Deutsche
Bank AG (together with its affiliates, the "DB Group"). One or more members of
the DB Group have, from time to time, provided investment banking, commercial
banking (including extension of credit) and other financial services to
TechForce and Equant or their affiliates for which it has received compensation.
In the ordinary course of business, members of the DB Group may actively trade
in the securities and other instruments and obligations of TechForce and Equant
N.V. for their own accounts and for the accounts of their customers.
Accordingly, the DB Group may at any time hold a long or short position in such
securities, instruments and obligations.
Based upon and subject to the foregoing, it is Deutsche Bank's opinion as
investment bankers that the Consideration is fair, from a financial point of
view.
Very truly yours,
[Deutsche Bank Securities Inc.
signature]
DEUTSCHE BANK SECURITIES INC.
<PAGE> 1
EXHIBIT (c)(1)
===============================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
TECHFORCE CORPORATION,
EQUANT N.V.,
EQUANT HOLDINGS U.S., INC.
AND
EQUANT ACQUISITION CORP.
DATED AS OF JUNE 30, 1999
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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PAGE
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ARTICLE I.........................................................................................................2
Section 1.1 The Offer....................................................................................2
Section 1.2 Company Action...............................................................................3
ARTICLE II........................................................................................................4
Section 2.1 The Merger...................................................................................4
Section 2.2 Effective Time; Closing......................................................................4
Section 2.3 Effects of the Merger; Subsequent Actions....................................................5
Section 2.4 Articles of Incorporation; Bylaws............................................................5
Section 2.5 Directors....................................................................................5
Section 2.6 Officers.....................................................................................5
Section 2.7 Conversion of Securities.....................................................................6
Section 2.8 Stock Options; Employee Stock Purchase Plan..................................................6
Section 2.9 Stockholders'Meeting.........................................................................7
ARTICLE III.......................................................................................................8
Section 3.1 Dissenting Shares............................................................................8
Section 3.2 Exchange of Certificates.....................................................................8
ARTICLE IV.......................................................................................................10
Section 4.1 Organization and Qualification; Subsidiaries................................................10
Section 4.2 Capitalization of the Company and Its Subsidiaries..........................................10
Section 4.3 Authority...................................................................................11
Section 4.4 Non-Contravention; Required Filings and Consents............................................12
Section 4.5 SEC Reports.................................................................................12
Section 4.6 Absence of Certain Changes; Derivatives.....................................................13
Section 4.7 Schedule 14D-9; Offer Documents; Proxy Statement............................................13
Section 4.8 Finder's Fee................................................................................14
Section 4.9 Absence of Litigation.......................................................................14
Section 4.10 Taxes......................................................................................14
Section 4.11 Employee Benefits..........................................................................16
Section 4.12 Compliance.................................................................................18
Section 4.13 Environmental Matters......................................................................19
Section 4.14 Intellectual Property......................................................................21
Section 4.15 Significant Agreements.....................................................................22
Section 4.16 Insurance..................................................................................23
Section 4.17 Title to and Condition of Properties; Leases...............................................24
Section 4.18 Labor Matters..............................................................................24
Section 4.19 Voting Requirements........................................................................25
Section 4.20 State Takeover Laws; No Anti-Takeover Measures.............................................25
Section 4.21 Codes and Policies.........................................................................26
Section 4.22 Year 2000 Compliance.......................................................................26
Section 4.23 U.K. Operations............................................................................26
Section 4.24 Opinion of Financial Advisor...............................................................26
Section 4.25 Employment and Labor Contracts.............................................................27
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Section 4.26 Disclosure..................................................................................27
ARTICLE V.........................................................................................................27
Section 5.1 Organization.................................................................................27
Section 5.2 Authority....................................................................................27
Section 5.3 Non-Contravention: Required Filings and Consents.............................................28
Section 5.4 Offer Documents; Schedule 14D-9; Proxy Statement.............................................29
Section 5.5 No Prior Activities..........................................................................29
Section 5.6 Financing....................................................................................29
Section 5.7 No Finder's Fee..............................................................................29
ARTICLE VI........................................................................................................30
Section 6.1 Conduct of Business of the Company...........................................................30
Section 6.2 Access to Information........................................................................32
Section 6.3 Reasonable Best Efforts......................................................................32
Section 6.4 Public Announcements.........................................................................33
Section 6.5 Indemnification..............................................................................33
Section 6.6 Notification of Certain Matters..............................................................34
Section 6.7 Termination of Stock Plans...................................................................34
Section 6.8 No Solicitation..............................................................................34
ARTICLE VII.......................................................................................................36
Section 7.1 Conditions to Each Party's Obligation to Effect the Merger...................................36
Section 7.2 Conditions to the Obligation of Ultimate Parent, Parent and Acquisition to Effect the Merger.36
Section 7.3 Conditions to the Obligation of the Company to Effect the Merger.............................37
ARTICLE VIII......................................................................................................37
Section 8.1 Termination..................................................................................37
Section 8.2 Effect of Termination........................................................................39
Section 8.3 Fees and Expenses............................................................................40
Section 8.4 Amendment....................................................................................40
Section 8.5 Extension; Waiver............................................................................40
ARTICLE IX........................................................................................................41
Section 9.1 Nonsurvival of Representations and Warranties................................................41
Section 9.2 Entire Agreement; Assignment.................................................................41
Section 9.3 Notices......................................................................................41
Section 9.4 Governing Law................................................................................42
Section 9.5 Parties in Interest..........................................................................42
Section 9.6 Specific Performance.........................................................................42
Section 9.7 Severability.................................................................................43
Section 9.8 Descriptive Headings.........................................................................43
Section 9.9 Certain Definitions..........................................................................43
Section 9.10 Counterparts................................................................................44
Annex A - Conditions of the Offer
Annex B - Joint Press Release
Annex C - 1994 Option Election Form
Annex D - Tech Force Indemnification Agreements
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of June 30, 1999, is by and
among TECHFORCE CORPORATION, a Georgia corporation (the "COMPANY"), Equant N.V.,
a Netherlands corporation (the "ULTIMATE PARENT"), Equant Holdings U.S., Inc., a
Delaware corporation and an indirect wholly owned subsidiary of Ultimate Parent
("PARENT"), and Equant Acquisition Corp., a Delaware corporation a wholly owned
subsidiary of Parent ("ACQUISITION").
WHEREAS, the Boards of Directors of Ultimate Parent, Parent,
Acquisition and the Company have each approved the acquisition of the Company by
Parent upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance thereof, it is proposed that Acquisition shall
make a tender offer to acquire all outstanding shares ("SHARES") of common
stock, par value $0.01 per share, of the Company (the "COMMON STOCK"), for a
cash amount of $8.50 per Share (such amount, or any greater amount per Share
paid pursuant to the tender offer, being hereinafter referred to as the "PER
SHARE AMOUNT") in accordance with the terms and subject to the conditions
provided for herein (the "OFFER");
WHEREAS, the Board of Directors of the Company (the "BOARD") has (i)
determined that the consideration to be paid for each Share in the Offer and the
Merger (as defined below) is fair to and in the best interests of the
stockholders of the Company, and (ii) approved this Agreement and the
transactions contemplated hereby and resolved to recommend acceptance of the
Offer and approval and adoption of this Agreement and the transactions
contemplated hereby by the stockholders of the Company;
WHEREAS, certain holders of the Common Stock have entered into letter
agreements as of the date hereof, pursuant to which, among other things, such
shareholders have agreed to tender their Shares in the Offer and to vote their
Shares of Common Stock in favor of the adoption of this Agreement and the
transactions contemplated hereby (the "SHAREHOLDER AGREEMENTS"); and
WHEREAS, the Boards of Directors of Ultimate Parent, Parent and
Acquisition have each approved the merger (the "MERGER") of Acquisition with and
into the Company following the Offer in accordance with the Georgia Business
Corporation Code ("GEORGIA LAW") and the Delaware General Corporation Law
("DELAWARE LAW") upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company, Parent and Acquisition hereby agree as follows;
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ARTICLE I
THE OFFER
SECTION 1.1 THE OFFER.
(a) Provided that this Agreement shall not have been
terminated in accordance with Section 8.1 and no event shall have occurred or
circumstance shall exist which constitutes a material failure to satisfy any of
the conditions set forth in Annex A hereto, as promptly as practicable, but in
no event later than the fifth (5th) business day following the public
announcement of the terms of this Agreement, Acquisition shall commence the
Offer. The obligation of Acquisition to accept for payment and pay for Shares
tendered pursuant to the Offer shall be subject to the condition that a number
of Shares representing not less than a majority of the outstanding Shares shall
have been validly tendered and not withdrawn prior to the Expiration Date (as
defined below) of the Offer (the "MINIMUM CONDITION"), and further there shall
have been no material failure to satisfy any of the conditions set forth in
ANNEX A hereto. The Per Share Amount payable in the Offer shall be paid net to
the tendering stockholders in cash, upon the terms and subject to the conditions
of the Offer. There shall not be deductible from the Per Share Amount any
expenses or costs of Ultimate Parent, Parent or Acquisition associated with,
arising out of or in connection with the transaction contemplated by this
Agreement or otherwise. Acquisition expressly reserves the right in its sole
discretion to waive, in whole or in part, at any time or from time to time, any
condition to the Offer (other than the Minimum Condition), to increase the price
per Share payable in the Offer or to make any other changes in the terms and
conditions of the Offer; provided that, unless previously approved by the
Company in writing, no change may be made that decreases the Per Share Amount,
waives or changes the Minimum Condition, changes the form of consideration
payable in the Offer, reduces the number of Shares to be purchased in the Offer,
imposes conditions to the Offer in addition to those set forth in Annex A hereto
or extends the Offer beyond the Outside Date (as defined in Section 8.1(c)). The
Offer shall be scheduled to expire as of the end of the twentieth (20th) day
following the commencement of the Offer, subject to any extensions thereof
permitted in this Agreement (the "EXPIRATION DATE"). If the Minimum Condition is
satisfied and the conditions set forth in Annex A hereto are satisfied in all
material respects or waived by Acquisition as of the Expiration Date, then
Acquisition shall promptly accept and pay for all Shares validly tendered and
not withdrawn pursuant to the Offer (the "TENDER CLOSING"); provided, that if
the Minimum Condition is satisfied and the other conditions set forth in Annex A
hereto are satisfied in all material respects or waived by Acquisition as of the
Expiration Date but fewer than 90% of the outstanding Shares have been validly
tendered and not withdrawn at such time, then Acquisition may, on more than one
occasion, extend the Expiration Date for a period of ten (10) business days but
not beyond the Outside Date. Unless this Agreement has been terminated pursuant
to Article VIII, if the Minimum Condition has not been satisfied or the
conditions set forth in Annex A hereto have not been satisfied in all material
respects or waived by Acquisition as of the Expiration Date (including any
extensions thereof), then Acquisition shall extend the Offer for an additional
period of not less than five (5) business days and not more than twenty (20)
business days; provided, that Acquisition shall not be required to extend the
Offer beyond the Outside Date.
(b) As soon as practicable on the date of commencement of
the Offer, Ultimate Parent, Parent and Acquisition shall file with the
Securities and Exchange Commission (the
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"COMMISSION") 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, the "OFFER
DOCUMENTS"). Ultimate Parent, Parent, Acquisition and the Company each agrees
promptly to correct any information provided by it for use in the Offer
Documents if and to the extent that any such information shall have become false
or misleading in any material respect and Ultimate Parent, Parent and
Acquisition each further agrees to take all steps necessary to cause the Offer
Documents as so corrected to be filed with the Commission and to be disseminated
to holders of Shares, in each case as and to the extent required by applicable
federal securities laws. The Company and its counsel shall be given a reasonable
opportunity to review and comment on the Offer Documents prior to their filing
with the Commission and shall be provided with any comments Ultimate Parent,
Parent, Acquisition and their counsel may receive from the Commission or its
staff with respect to the Offer Documents promptly after receipt of such
comments.
SECTION 1.2 COMPANY ACTION.
(a) The Company hereby approves of and consents to the
Offer and represents and warrants that the Board, at a meeting duly called and
held on June 28, 1999, unanimously (i) determined that this Agreement and the
transactions contemplated hereby, including the Offer and the Merger, are
advisable and are fair to and in the best interests of the stockholders of the
Company, (ii) approved this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, and (iii) resolved to recommend that the
stockholders of the Company accept the Offer, tender their Shares thereunder to
Acquisition and, if required by applicable law, approve and adopt this Agreement
and the Merger. The Company has been authorized by Deutsche Bank Securities Inc.
("DEUTSCHE BANK") to permit the inclusion of its fairness opinion to the Company
(as described in Section 4.24) in the Offer Documents and the Schedule 14D-9
referred to below and the Proxy Statement referred to in Section 4.7. The
Company hereby consents to the inclusion in the Offer Documents of the
recommendations of the Board described in this Section 1.2(a).
(b) As soon as practicable on the date of commencement of
the Offer, the Company shall file with the Commission a Solicitation/
Recommendation Statement on Schedule 14D-9 (together with any amendments or
supplements thereto, the "SCHEDULE 14D-9") and shall mail the Schedule 14D-9 to
the stockholders of the Company promptly after the commencement of the Offer.
The Schedule 14D-9 shall at all times contain the determinations, approvals and
recommendations described in Section 1.2 (a), unless, subject to the
requirements of Section 6.8, the Company's directors determine in good faith,
based upon the advice of legal counsel, that the withdrawal of any of such
determinations is required for the discharge of their fiduciary duties to
stockholders under applicable law. Ultimate Parent, Parent, Acquisition and the
Company each agrees promptly to correct any information provided by it for use
in the Schedule 14D-9 if and to the extent that any such information shall have
become false or misleading in any material respect and the Company further
agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected
to be filed with the Commission and to be disseminated to holders of Shares, in
each case as and to the extent required by applicable federal securities laws.
Ultimate Parent, Parent, Acquisition and their counsel shall be given a
reasonable opportunity to review and comment on the Schedule 14D-9 prior to its
filing with the Commission and shall be provided with any
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comments the Company and its counsel may receive from the Commission or its
staff with respect to the Schedule 14D-9 promptly after receipt of such
comments.
(c) In connection with the Offer, the Company shall cause
its transfer agent to promptly furnish Acquisition with mailing labels, security
position listings and any available listing or computer file containing the
names and addresses of the record holders of the Shares as of a recent date and
shall furnish Acquisition with such additional information and assistance
(including, without limitation, updated lists of stockholders, mailing labels
and lists of securities positions) as Acquisition or its agents may reasonably
request in communicating the Offer to the record and beneficial holders of
Shares. Subject to the requirements of applicable law, and except for such steps
as are necessary to disseminate the Offer Documents and any other documents
necessary to consummate the Merger, Acquisition and its affiliates and
associates shall hold in confidence the information contained in any such
labels, listings and files, will use such information only in connection with
the Offer and the Merger, and, if this Agreement shall be terminated, will
deliver to the Company (or destroy and certify in writing such destruction) all
copies (in any form of media) of such information then in their possession.
ARTICLE II
THE MERGER
SECTION 2.1 THE MERGER.
Subject to the satisfaction or waiver of the conditions set forth in
Article VII, at the Effective Time (as defined below) and upon the terms and
subject to the conditions of this Agreement and Georgia Law and Delaware Law,
Acquisition shall be merged with and into the Company whereupon the separate
corporate existence of Acquisition shall cease and the Company shall continue as
the surviving corporation (the "SURVIVING CORPORATION"). The name of the
Surviving Corporation shall be changed to "Equant Integration Services, Inc."
upon the closing of the Merger transaction. At Acquisition's option, the Merger
may be structured so that (i) the Company is merged with and into Parent,
Acquisition or any other direct or indirect subsidiary of Parent or (ii) any
direct or indirect subsidiary of Parent is merged with and into the Company. In
the event of such election, the parties agree to execute an appropriate
amendment to this Agreement in order to reflect such election.
SECTION 2.2 EFFECTIVE TIME; CLOSING.
As soon as practicable after the satisfaction or waiver of the
conditions set forth in Article VII, the parties hereto shall file articles of
merger or certificates of merger with the Secretary of State of the State of
Georgia and the Secretary of State of the State of Delaware and make all other
filings or recordings required by Georgia Law and Delaware Law in connection
with the Merger. The Merger shall become effective at such time as articles of
merger or a certificate of merger are duly filed with the Secretary of State of
the State of Georgia (the "GEORGIA FILING") and articles of merger or a
certificate of ownership and merger are duly filed with the Secretary of State
of the State of Delaware (the "DELAWARE FILING") or at such later time as is
specified in the Georgia Filing and the Delaware Filing (the "EFFECTIVE TIME").
Prior to such filing, a closing (the "CLOSING") shall be held at the offices of
Hunton & Williams, 600
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Peachtree Street, N.E., NationsBank Plaza, Suite 4100, Atlanta, Georgia 30308,
or such other place as the parties shall agree, for the purpose of confirming
the satisfaction or waiver of the conditions set forth in Article VII.
SECTION 2.3 EFFECTS OF THE MERGER; SUBSEQUENT ACTIONS.
(a) The Merger shall have the effects set forth in
Georgia Law and Delaware Law. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, all the properties, rights,
privileges, powers and franchises of the Company and Acquisition shall vest in
the Surviving Corporation, and all debts, liabilities and duties of the Company
and Acquisition shall become the debts, liabilities and duties of the Surviving
Corporation.
(b) 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 the Company or Acquisition 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 the Company or Acquisition, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm of record or otherwise any
and all right, title and interest in, to and under such rights, properties or
assets of the Surviving Corporation or otherwise to carry out this Agreement.
SECTION 2.4 ARTICLES OF INCORPORATION; BYLAWS.
(a) The Articles of Incorporation (the "ARTICLES OF
INCORPORATION") of the Company in effect immediately prior to the Effective Time
shall be the Articles of Incorporation of the Surviving Corporation until
amended in accordance with applicable law.
(b) The Bylaws of the Company (the "BYLAWS") in effect at
the Effective Time shall be the Bylaws of the Surviving Corporation until
amended in accordance with applicable law.
SECTION 2.5 DIRECTORS.
The directors of Acquisition at the Effective Time shall be the initial
directors of the Surviving Corporation, each to hold office in accordance with
the Articles of Incorporation and Bylaws of the Surviving Corporation and until
his or her successor is duly elected and qualified.
SECTION 2.6 OFFICERS.
The officers of the Company at the Effective Time, and any additional
individuals designated by Parent, shall be the initial officers of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation and until his or her
successor is duly appointed and qualified.
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SECTION 2.7 CONVERSION OF SECURITIES.
At the Effective Time, by virtue of the Merger and without any action
on the part of Ultimate Parent, Parent, Acquisition, the Company or the holder
of any of the following securities:
(a) Each Share issued and outstanding immediately prior
to the Effective Time (other than Shares to be canceled pursuant to Section
2.8(b) and Dissenting Shares (as defined in Section 3.1)) shall by virtue of the
Merger and without any action on the part of the holder thereof be canceled and
extinguished and be converted into the right to receive an amount in cash equal
to the Per Share Amount (the "MERGER CONSIDERATION").
(b) Each Share issued and outstanding immediately prior
to the Effective Time and owned by Ultimate Parent, Parent or Acquisition or any
direct or indirect subsidiary of Parent or Acquisition, or which is held in the
treasury of the Company or any of its Subsidiaries, shall be canceled and
retired and no payment of any consideration shall be made with respect thereto.
(c) Each share of common stock, par value $0.01 per
share, of Acquisition issued and outstanding immediately prior to the Effective
Time shall be converted into and become one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share, of the Surviving
Corporation.
SECTION 2.8 STOCK OPTIONS; EMPLOYEE STOCK PURCHASE PLAN.
(a) Immediately prior to the Effective Time, the Company
shall cause each Option to purchase Shares ("1994 OPTIONS") under the TechForce
Corporation 1994 Incentive Stock Option Plan (the "1994 PLAN") that is
outstanding but unvested to become fully vested and exercisable pursuant to the
last sentence of Section 14 of the 1994 Plan. At the time of commencement of the
Offer, the Company shall provide an option election form to all holders of 1994
Options substantially in the form of ANNEX C hereto. As contemplated by Annex C
and in accordance with Section 14 of the Plan, each holder of a 1994 Option
shall be permitted to exercise such 1994 Option, with such exercise to be
effective no later than immediately prior to the Effective Time. The Company
shall take all actions necessary under the 1994 Plan to cause all 1994 Options
which have not been exercised prior to the Effective Time to terminate as of the
Effective Time without any payment thereon.
(b) Immediately prior to the Effective Time, each
outstanding Option to purchase Shares ("1995 OPTIONS") under the TechForce
Corporation 1995 Stock Incentive Plan (the "1995 PLAN"), whether or not then
vested and exercisable, shall be canceled by the Company pursuant to Section
3.1(d) of the 1995 Plan, upon which cancellation each holder of a 1995 Option
shall be entitled to receive from the Company in consideration for the
cancellation of such 1995 Option an amount in cash (less applicable withholding
taxes) equal to the product of (i) the number of Shares previously subject to
such 1995 Option and (ii) the excess, if any, of the Merger Consideration over
the exercise price per Share pursuant to such 1995 Option.
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(c) It is understood and agreed that the Surviving
Corporation shall not issue any substitute Options as contemplated by Section 7
of the Terms and Conditions to the Non-Qualified Stock Option Awards under the
TechForce Corporation 1995 Outside Directors Stock Option Plan (the "DIRECTOR
PLAN"). Accordingly, immediately prior to the Effective Time, each outstanding
Option to purchase Shares ("DIRECTOR OPTIONS") issued pursuant to the Director
Plan, whether or not then vested and exercisable, shall terminate in accordance
with such Section 7, upon which termination each holder of a Director Option
shall be entitled to receive from the Company in consideration for the
cancellation of such Director Option an amount in cash (less applicable
withholding taxes) equal to the product of (i) the number of Shares previously
subject to such Director Option and (ii) the excess, if any, of the Merger
Consideration over the exercise price per Share pursuant to such Director
Option.
(d) The Company shall cause the TechForce Corporation
Amended and Restated Employee Stock Purchase Plan (the "ESPP") to be suspended
(and inoperative) as of the date hereof until the Effective Time or the date
this Agreement is terminated, whichever occurs first, as set forth herein.
Pursuant to Section 11(b) of the ESPP, each participant in the ESPP shall be
entitled to receive after the Closing an amount in cash equal to the net amount
which such participant would have received if the total amount of payroll
deductions accumulated in such participant's account under the ESPP up to the
date of termination had been used to exercise the option to purchase Shares
under the ESPP on such date and the Shares so purchased had been sold to the
Company at the Per Share Amount.
SECTION 2.9 STOCKHOLDERS' MEETING.
If approval by the Company's stockholders is required by applicable law
to consummate the Merger, the Company, acting through the Board, shall in
accordance with applicable law as soon as practicable following the consummation
of the Offer:
(i) establish and give any required notice of a
record date for the taking of action by written consent or duly call,
give notice of, convene and hold an annual or special meeting of its
stockholders (the "STOCKHOLDERS' MEETING") for the purpose of
considering and taking action upon this Agreement and the Merger;
(ii) include in the Proxy Statement (as defined in
Section 4.7) the recommendation of the Board that stockholders of the
Company vote in favor of the approval and adoption of this Agreement
and the transactions contemplated hereby including, without limitation,
the Merger; and
(iii) use its best efforts (A) 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
consummation of the Offer and (B) to obtain the necessary approvals by
its stockholders of this Agreement and the transactions contemplated
hereby.
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At such meeting, Parent and Acquisition will vote or cause to be voted
all Shares beneficially owned by them in favor of this Agreement and the
transactions contemplated hereby, including, without limitation, the Merger.
SECTION 2.10 APPOINTMENT OF DIRECTORS.
Promptly after the Tender Closing through the consummation of the
Stockholders' Meeting, Parent shall have the right to appoint to the Company's
Board of Directors a number of directors so that the number of such appointed
directors reflects (as closely as practicable) the percentage of the Company's
outstanding common stock owned by Acquisition immediately after the Tender
Closing, provided, that such appointment of directors shall comply in all
respects with Section 14(f) of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") and Regulation 14f-1 thereunder.
ARTICLE III
DISSENTING SHARES; EXCHANGE OF SHARES
SECTION 3.1 DISSENTING SHARES.
Notwithstanding anything in this Agreement to the contrary, Shares
outstanding immediately prior to the Effective Time and held by a holder who has
not voted in favor of the Merger or consented thereto in writing and who has
demanded appraisal for such Shares in accordance with Georgia Law ("DISSENTING
SHARES") shall not be converted into a right to receive the Per Share Amount
unless such holder fails to perfect or withdraws or otherwise loses his, her or
its right to appraisal. If, after the Effective Time, such holder fails to
perfect or withdraws or loses his, her or its right to appraisal, such Shares
shall be treated as if they had been converted as of the Effective Time into a
right to receive the Per Share Amount without interest thereon. The Company
shall give Parent prompt notice of any demands received by the Company for
appraisal of Shares, and, prior to the Effective Time, Parent shall have the
right to participate in all negotiations and proceedings with respect to such
demands. Prior to the Effective Time, the Company shall not, except with the
prior written consent of Parent, make any payment with respect to, or settle or
offer to settle, any such demands.
SECTION 3.2 EXCHANGE OF CERTIFICATES.
(a) From and after the Effective Time, American Stock
Transfer & Trust Co., or such other bank or trust company as the Surviving
Corporation and Parent shall mutually determine, (the "DEPOSITARY") shall act as
Depositary in effecting the payment of the Merger Consideration upon surrender
of certificates (the "CERTIFICATES") that, prior to the Effective Time,
represented Shares. Upon the surrender of each such Certificate formerly
representing Shares, the Depositary shall pay the holder of such Certificate the
Per Share Amount multiplied by the number of Shares formerly represented by such
Certificate, in exchange therefor, and such Certificate shall forthwith be
canceled. Until so surrendered and exchanged, each such Certificate (other than
Certificates representing Dissenting Shares or Shares held by Parent,
Acquisition or the Company, or any direct or indirect Subsidiary thereof) shall
represent solely the right to receive the Per Share Amount. No interest shall be
paid or accrue on the Per Share Amount. If the Per Share Amount (or
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any portion thereof) is to be delivered to any person other than the person in
whose name the Certificate formerly representing Shares surrendered in exchange
therefor is registered, it shall be a condition to such exchange that the
Certificate so surrendered shall be properly endorsed or otherwise be in proper
form for transfer and that the person requesting such exchange shall pay to the
Depositary any transfer or other taxes required by reason of the payment of the
Per Share Amount to a person other than the registered holder of the Certificate
surrendered, or shall establish to the satisfaction of the Depositary that such
tax has been paid or is not applicable.
(b) When and as needed, Parent or the Surviving
Corporation shall deposit, or cause to be deposited, in trust with the
Depositary the Merger Consideration to which holders of Shares shall be entitled
at the Effective Time pursuant to Section 2.7(a).
(c) The Merger Consideration shall be invested for the
benefit of Parent by the Depositary, as directed by Parent, provided such
investments shall be limited to direct obligations of the United States of
America, obligations for which the full faith and credit of the United States of
America is pledged to provide for the payment of principal and interest,
commercial paper rated of the highest quality by Moody's Investors Services,
Inc. or Standard & Poor's Corporation, or certificates of deposit issued by a
commercial bank having at least $1,000,000,000 in assets.
(d) Promptly following the date which is six months after
the Effective Time, Parent shall cause the Depositary to deliver to the
Surviving Corporation all cash and documents in its possession relating to the
transactions described in this Agreement, and the Depositary's duties (which
shall be defined in a "Paying Agency Agreement" to be entered into between
Parent, Acquisition and Depositary) shall terminate. Thereafter, each holder of
a Certificate formerly representing a Share may surrender such Certificate to
the Surviving Corporation and (subject to applicable abandoned property, escheat
and similar laws) receive in exchange therefor the Merger Consideration, without
any interest thereon. After such termination of the Depositary's duties under
the Paying Agency Agreement, Parent shall assure that the Surviving Corporation
has sufficient funds to pay the Merger Consideration when and as needed and
shall cause the Surviving Corporation to pay the Merger Consideration to holders
of Certificates formerly representing Shares upon the proper surrender of such
Certificates for payment.
(e) Promptly after the Effective Time and in connection
with the Merger, Parent shall cause the Depositary to mail to each record holder
of Certificates that immediately prior to the Effective Time represented Shares
a form of letter of transmittal and instructions for use in surrendering such
Certificates and receiving the Per Share Amount in exchange therefor.
(f) After the close of business on the day prior to the
date of the Effective Time, there shall be no transfers on the stock transfer
books of the Surviving Corporation of any Shares. If, after the Effective Time,
Certificates formerly representing Shares are presented to the Surviving
Corporation or the Depositary, they shall be canceled and exchanged for the Per
Share Amount, as provided in this Article III, subject to applicable law in the
case of Dissenting Shares.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as described in the Disclosure Schedules accompanying this
Agreement, the Company represents and warrants to Ultimate Parent, Parent and
Acquisition as follows:
SECTION 4.1 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
(a) Each of the Company and, except for TechForce U.K.
Limited, its Subsidiaries (as hereinafter defined) is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization. TechForce
U.K. Limited is a limited liability company duly incorporated and validly
existing under the laws of England. Each of the Company and its Subsidiaries has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
(b) Except as described in Schedule 4.1(b), each of the
Company and its Subsidiaries is duly qualified or licensed and in good standing
to do business in each jurisdiction (including any foreign country) in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary, except 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, assets,
liabilities, results of operations, prospects or financial condition of the
Company and its Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) The Company has heretofore furnished to Parent
complete and correct copies of the Company's Articles of Incorporation and
Bylaws and the equivalent organizational documents of each of its Subsidiaries,
each as amended to the date hereof. Such Articles of Incorporation, Bylaws and
equivalent organizational documents are in full force and effect and no other
organizational documents are applicable to or binding upon the Company or its
Subsidiaries. The Company is not in violation of any of the provisions of its
Articles of Incorporation or Bylaws and no Subsidiary of the Company is in
violation of any of the provisions of such Subsidiary's equivalent
organizational documents.
(d) Schedule 4.1(d) is a complete and correct list of all
entities in which the Company owns, directly or indirectly, any equity or voting
interest (each, a "Subsidiary" and, collectively, the "Subsidiaries"), which
list sets forth (i) the amount of capital stock of or other equity interests in
such entities so owned, directly or indirectly, (ii) the total amount of
authorized capital stock of or other equity interests in such entities, (iii)
the jurisdiction of incorporation of each such entity and the jurisdiction(s) in
which each such entity is qualified or otherwise licensed to do business, and
(iv) the duly elected directors and officers of such entities.
SECTION 4.2 CAPITALIZATION OF THE COMPANY AND ITS SUBSIDIARIES.
The authorized capital stock of the Company consists of 30,000,000
shares of common stock and 4,259,350 shares of preferred stock of which, as of
June 28, 1999, 8,280,765 shares of
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common stock were issued and outstanding and no shares of preferred stock were
issued and outstanding. All outstanding shares of capital stock of the Company
have been validly issued, and are fully paid, nonassessable and free of
preemptive rights. As of June 28, 1999, Options (as hereinafter defined) to
purchase an aggregate of 1,242,960 Shares were outstanding and the weighted
average exercise price of such Options was $6.25 per Share, provided, that an
aggregate of 3,606 additional shares of the Company's common stock may be issued
in connection with the ESPP prior to the Effective Time. Except as set forth
above, there are outstanding (i) no shares of capital stock or other securities
of the Company, (ii) no securities of the Company convertible into or
exchangeable for shares of capital stock or securities of the Company, (iii) no
options, subscriptions, warrants, convertible securities, calls or other rights
to acquire from the Company, and no obligation of the Company to issue, deliver
or sell any capital stock, securities or securities convertible into or
exchangeable for capital stock or securities of the Company, and (iv) no equity
equivalents, interests in the ownership or earnings of the Company or other
similar rights (collectively, "COMPANY SECURITIES"). There are no outstanding
obligations of the Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any Company Securities, other than the Company's obligations
hereunder with respect to the 1994 Options, 1995 Options and Director Options as
contemplated by Section 2.8(a), (b) and (c), respectively, and the Company's
obligations under the ESPP as contemplated by Section 2.8(d). Except as set
forth on Schedule 4.2 each of the outstanding shares of capital stock of each of
the Company's Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable and is directly or indirectly owned by the Company, free and clear
of all security interests, liens, claims, pledges, charges, voting agreements or
other encumbrances of any nature whatsoever (collectively, "LIENS"). The Company
is directly or indirectly the record (or legal and registered) and beneficial
owner of all of the outstanding shares of capital stock of each of such entities
as set forth on Schedule 4.1(d), there are no proxies with respect to such
shares, and no equity securities of any of such entities are or may be required
to be issued by reason of any options, warrants, scrip, rights to subscribe for,
calls or commitments of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, shares of any capital stock of any
such entity, and there are no contracts, commitments, understandings or
arrangements by which any such entity is bound to issue additional shares of its
capital stock or securities convertible into or exchangeable for such shares.
SECTION 4.3 AUTHORITY.
The Company has all necessary corporate power and authority to execute
and deliver this Agreement and, subject to Article VII with respect to the
Merger, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger, the
approval and adoption of this Agreement and the Merger by the holders of a
majority of the outstanding Shares if and to the extent required by applicable
law and the filing of the appropriate merger documents as required by Georgia
Law and Delaware Law). This Agreement has been duly and validly executed and
delivered by the Company and constitutes a legal, valid and binding agreement of
the Company enforceable against the Company in accordance with its terms.
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<PAGE> 15
SECTION 4.4 NON-CONTRAVENTION; REQUIRED FILINGS AND CONSENTS.
(a) Except as set forth on Schedule 4.4, the execution,
delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby (including the Merger) do not and will
not (i) contravene or conflict with the Articles of Incorporation or Bylaws of
the Company or the equivalent organizational documents of any of its
Subsidiaries; (ii) assuming that all consents, authorizations and approvals
contemplated by subsection (b) below have been obtained and all filings
described therein have been made, contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to the Company, any of its Subsidiaries or
any of their respective assets; (iii) conflict with, or result in the breach or
termination of any provision of or constitute a default (with or without the
giving of notice or the lapse of time or both) under, or give rise to any right
of termination, cancellation, or loss of any benefit to which the Company or any
of its Subsidiaries is entitled under any provision of, or allow the
acceleration of the performance of, any obligation of the Company or any of its
Subsidiaries under, any indenture, mortgage, deed of trust, lease, license,
contract, instrument or other agreement to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or
any of their respective assets is subject or bound; or (iv) result in the
creation or imposition of any Lien on any asset of the Company or any of its
Subsidiaries, except in the case of clauses (ii), (iii) and (iv) for any such
contraventions, conflicts, violations, breaches, terminations, defaults,
cancellations, losses, accelerations and Liens which would not, individually or
in the aggregate, have a Material Adverse Effect or prevent or materially delay
the consummation of the transactions contemplated by this Agreement.
(b) The execution, delivery and performance by the
Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby (including the Merger) require no action by or
in respect of, or filing with, any governmental body, agency, official or
authority (either domestic, foreign or supranational) other than (i) the filing
of the Georgia Filing in accordance with Georgia Law and the Delaware Filing in
accordance with Delaware Law; (ii) compliance with any applicable requirements
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR ACT"); (iii) compliance with any applicable requirements of the Exchange
Act (including, without limitation, the proxy and tender rules) and state
securities, takeover and Blue Sky laws and the requirements of the Nasdaq Stock
Market; and (iv) such actions or filings which, if not taken or made, would not,
individually or in the aggregate, have a Material Adverse Effect or materially
interfere with the consummation of the Offer or the Merger.
SECTION 4.5 SEC REPORTS.
(a) The Company has filed all required forms, reports and
documents required to be filed by it with the Commission since December 14, 1995
(collectively, the "SEC REPORTS"), each of which, as amended prior to the date
hereof, has complied in all material respects with applicable requirements of
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the Exchange
Act. As of their respective dates, none of the SEC Reports, as amended prior to
the date hereof, including, without limitation, any financial statements or
schedules included therein, contained any untrue statement of a material fact or
omitted to state a material fact required to be
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<PAGE> 16
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited consolidated interim financial
statements of the Company included in the SEC Reports present fairly in all
material respects, in conformity with generally accepted accounting principles
applied on a consistent basis (except as may be indicated in the notes thereto),
the consolidated financial position of the Company and its consolidated
Subsidiaries as of the dates thereof and their consolidated results of
operations and cash flows for the periods then ended (subject to normal year-end
adjustments in the case of any unaudited interim financial statements). The
Company has heretofore provided complete and correct copies of each of the SEC
Reports to Parent.
(b) Except as reflected or reserved against in the
audited consolidated balance sheet of the Company and its Subsidiaries at
December 31, 1998, the Company and its Subsidiaries have no liabilities of any
nature (whether accrued, absolute, contingent or otherwise), except for
liabilities incurred in the ordinary course of business since December 31, 1998
which would not, individually or in the aggregate, have a Material Adverse
Effect.
SECTION 4.6 ABSENCE OF CERTAIN CHANGES; DERIVATIVES.
(a) Since December 31, 1998, except as specifically
disclosed in the SEC Reports filed prior to the date of this Agreement, neither
the Company nor any of its Subsidiaries has (i) taken any of the actions set
forth in Section 6.1 except as permitted thereunder or (ii) entered into any
transaction, or conducted its business or operations other than in the ordinary
course of business consistent with past practice. Since December 31, 1998,
except as specifically disclosed in the SEC Reports filed prior to the date of
this Agreement, there has not been any event or circumstances that has resulted
in a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is a
party or subject to or bound by any future, forward, swap, option or swap
contract, or any other financial instrument with similar characteristics or
generally characterized as a "derivative" security.
SECTION 4.7 SCHEDULE 14D-9; OFFER DOCUMENTS; PROXY STATEMENT.
Neither the Schedule 14D-9, nor any of the information provided by the
Company and/or by its auditors, legal counsel, financial advisors or other
consultants or advisors specifically for use in the Offer Documents shall, on
the date hereof and on the respective dates the Schedule 14D-9, the Offer
Documents or any supplements or amendments thereto are filed with the Commission
or on the date first published, sent or given to the Company's stockholders, as
the case may be, 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. The proxy or information statement or similar materials
distributed to the Company's stockholders in connection with the Merger,
including any amendments or supplements thereto (the "PROXY STATEMENT"), shall
not, at the time filed with the Commission, at the time mailed to the Company's
stockholders, at the time of the Stockholders' Meeting or at 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 in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. Notwithstanding the foregoing, the Company makes no representation
or warranty of any kind
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<PAGE> 17
with respect to any information provided by Parent, Acquisition and/or by their
auditors, legal counsel, financial advisors or other consultants or advisors
specifically for use in the Schedule 14D-9 or the Proxy Statement. The Schedule
14D-9 and the Proxy Statement will comply as to form in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
thereunder.
SECTION 4.8 FINDER'S FEE.
No broker, finder, investment banker or other intermediary other than
Deutsche Bank and Bertil Nordin (the material terms of the Nordin obligation
being described on Schedule 4.8) is entitled to any brokerage, finder's,
financial advisory or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by and
on behalf of the Company or any of its Subsidiaries. The Company has heretofore
furnished to Parent a complete and correct copy of all agreements between the
Company and Deutsche Bank pursuant to which Deutsche Bank would be entitled to
any payment relating to the transactions contemplated hereby.
SECTION 4.9 ABSENCE OF LITIGATION.
Except as specifically disclosed on Schedule 4.9, there is no action,
suit, claim, investigation or proceeding, to the best knowledge of the Company,
filed or, to the knowledge of the Company, pending against the Company or any of
its Subsidiaries, or to the knowledge of the Company, threatened against, the
Company or any of its Subsidiaries or any of their respective assets before any
court or arbitrator or any administrative, regulatory or governmental body, or
any agency or official (collectively, "LITIGATION"). No such Litigation (i)
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect; (ii) in any manner challenges or seeks to prevent,
enjoin, alter or delay the Offer or the Merger or any of the other transactions
contemplated hereby; or (iii) alleges criminal action or inaction by the Company
or any of its officers or directors in their capacities as such. Neither the
Company nor any of its Subsidiaries nor any of their respective assets is
subject to any order, writ, judgment, injunction, decree, determination or award
ordering payment of damages in excess of $100,000 (including unquantified
damages) or any injunctive or other equitable relief or having, or which would
reasonably be expected to have, a Material Adverse Effect or which would prevent
or materially delay the consummation of the transactions contemplated hereby.
SECTION 4.10 TAXES. Except as set forth on Schedule 4.10:
(a) All material federal, state, local, foreign and other
tax returns, reports, information returns and statements of the Company and each
of its Subsidiaries (including any consolidated tax returns that include the
income or loss of the Company or any of its Subsidiaries) ("TAX RETURNS")
required by law to be filed or sent have been duly filed or sent, and such
returns, reports and statements are true, complete and correct in all material
respects. All material federal, state, local, foreign and other taxes, duties,
levies, assessments, fees and other governmental charges, including, without
limitation, income, gross receipts, net proceeds, alternative or add-on minimum,
ad valorem, value added, turnover, sales, use, property, personal property
(tangible and intangible), stamp, leasing, lease, user, excise, duty, franchise,
transfer, license, withholding, payroll, employment, fuel, excess profits,
occupational and interest equalization, windfall profits,
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severance, and other charges (including interest and penalties) (collectively,
"TAXES" and individually a "TAX") imposed upon the Company or any of its
Subsidiaries or any of the assets or income of the Company or any of its
Subsidiaries which are due and payable or claimed by any taxing authority to be
due and payable have been fully paid or adequately reserved for, or adequate
provision has been made therefor, other than Taxes being contested in good faith
by the Company or any of its Subsidiaries concerning an aggregate amount which
is not material to the business of the Company or such of its Subsidiaries and
which have been adequately reserved for. The most recent financial statements
contained in the SEC Reports reflect an adequate tax reserve in accordance with
generally accepted accounting principles. The Company and its Subsidiaries have
made all required current estimated payments of Taxes sufficient to avoid any
material underpayment penalties.
(b) (i) There are no Tax claims pending against the
Company or any of its Subsidiaries and neither the Company nor any of its
Subsidiaries knows of any threatened claim for Tax deficiencies or any basis for
such claims, (ii) there are no liens for Taxes upon any property or assets of
the Company or any of its Subsidiaries, (iii) there are no Tax Returns for the
Company or any of its Subsidiaries have been or are currently being examined by
any taxing authority and the Company has not received any notice that any such
examination is contemplated, (iv) there are not now in force any waivers or
agreements by the Company or any of its Subsidiaries for the extension of time
for the assessment or collection of any Tax or the filing of any Tax Return, nor
has any such waiver or agreement been requested by the Internal Revenue Service
or any other taxing authority, (v) the statute of limitations with respect to
any year or period to and including the fiscal year ended 1994 has expired, and
(vi) neither the Company nor any of its Subsidiaries is or has been a party to
any Tax sharing agreement with any person other than the Company and its
Subsidiaries; which (as to (i) through (iv) above) would reasonably be expected
to have a Material Adverse Effect.
(c) The Company and all of its Subsidiaries have paid or
are withholding and will pay when due to the proper taxing authorities all
material withholding amounts required to be withheld with respect to all Taxes,
including without limitation sales and use Taxes and Taxes on income or benefits
and taxes for unemployment, social security or other similar programs with
respect to salary and other compensation of directors, officers and employees of
the Company and its Subsidiaries. The Company and each Subsidiary has undertaken
in good faith to classify appropriately all service providers as either
employees or independent contractors for all Tax purposes. Neither the Company
nor any of its Subsidiaries has made any material payment or is a party to any
agreement that, individually or in the aggregate, or when taken together with
any payment that may be made under this Agreement or any agreements contemplated
herein, could obligate it to make any material payment that will not be
deductible under Section 280G of the Internal Revenue Code of 1986, as amended
(the "CODE"), or require withholding under Section 4999 of the Code.
(d) Neither the Company nor any Subsidiary (i) has made a
transfer of intangible property with respect to which Section 367(d) or 482 of
the Code will require the recognition of additional income for any period (or
portion thereof) after the date hereof; (ii) has owned stock in a "passive
foreign investment company" within the meaning of Section 1296(a) of the Code;
or an agreement with a governmental authority related to Taxes, that would have
any continuing effect after the Effective Time.
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(e) Except for taxes due and payable in the ordinary
course of business, neither the Company nor any of its Subsidiaries has any
liability for any material federal, state, local, foreign or other Taxes of any
corporation or entity (excluding natural persons) other than the Company and its
Subsidiaries, including, without limitation any liability arising from the
application of U.S. Treasury Regulation ss. 1.1502-6 or any analogous provision
of state, local or foreign law.
(f) The Company has delivered or made available to Parent
correct and complete copies of all Tax Returns, audit reports and statements of
deficiencies assessed against or agreed to by the Company or any of its
Subsidiaries since January 1, 1995.
(g) The Company is not, nor has it ever been, a United
States real property holding corporation as defined in Section 897(c)(2) of the
Code.
(h) Schedule 4.10(h) sets forth as of the date of this
Agreement: (i) a complete schedule of the tax and book bases of the Company and
each of its Subsidiaries in its respective assets; (ii) a complete listing of
the amount of any net operating loss (as well as jurisdiction and expiration
dates), net capital loss, unused investment or other credits, unused foreign tax
credits, or excess charitable contributions allocable to the Company or any of
its Subsidiaries and any current limitation or restriction as to the utilization
thereof; (iii) a complete listing of the amount of any deferred gain or loss
allocable to the Company or any of its Subsidiaries; and (iv) all current
material elections with respect to Taxes by or affecting the Company or any
subsidiary. The Company has not agreed to make, nor is it required to make, any
adjustments under Section 481(a) of the Code by reason of a change in accounting
method or otherwise.
SECTION 4.11 EMPLOYEE BENEFITS.
(a) Schedule 4.11(a) contains a true and complete list of
each material bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance or termination pay, hospitalization or other
medical, life, disability or other insurance, supplemental unemployment
benefits, fringe benefit, profit-sharing, pension, or retirement plan, program,
agreement or arrangement, each material employment agreement and each other
material employee benefit plan, program, agreement or arrangement sponsored,
maintained or contributed to or required to be contributed to by the Company, or
by any Subsidiary of the Company or by any trade or business, whether or not
incorporated (any such Subsidiary, trade or business an "ERISA AFFILIATE"), that
together with the Company would be deemed in a "controlled group" within the
meaning of section 4001 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or with respect to which the Company or any ERISA
Affiliate has any liability or contingent liability (collectively, the "PLANS"
and, individually, a "PLAN"), whether or not any such Plan is subject to ERISA.
Schedule 4.11 (a) identifies each of the Plans that is an "employee benefit
plan" as that term is defined in section 3(3) of ERISA (the "ERISA PLANS").
(b) The Company has heretofore delivered to Parent true
and complete copies of each of the Plans, all summary plan descriptions, a
description of any Plan that has not been reduced to writing and all material
contracts relating to any Plan, or to the funding thereof, including, without
limitation, all material trust agreements, insurance contracts, administration
contracts, investment management agreements, subscription and participation
agreements, and
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record keeping agreements, each as in effect on the date hereof. A true and
correct copy of the most recent annual report, actuarial report, accountant's
opinion of the Plan's financial statements, and Internal Revenue Service
determination letter with respect to each Plan, to the extent applicable, and a
current schedule of assets (and the fair market value thereof assuming
liquidation of any asset which is not readily tradable) held with respect to any
funded Plan has been supplied to the Parent, and there have been no material
changes in the financial condition in the respective Plans from that stated in
the annual reports and actuarial reports supplied.
(c) None of the Plans is subject to title IV of ERISA and
none of the Plans is a Multiemployer Plan (as defined in section 3(37) of ERISA)
or a Multiple Employer Plan within the meaning of Section 413(e) of the Code.
(d) With respect to any Plan subject to ERISA, neither
the Company nor any ERISA Affiliate, nor any Plan, nor any trust created
thereunder, nor any trustee or administrator thereof has engaged in a prohibited
transaction (as defined in section 406 of ERISA or section 4975 of the Code)
with respect to any such Plan nor have there been any other prohibited
transactions with respect to any such Plans.
(e) Each Plan complies and has been operated and
administered in form and operation in all material respects in accordance with
its terms and applicable law, including but not limited to ERISA and the Code,
and no event has occurred which will or could cause any Plan to fail to
materially comply with such requirements and no notice has been issued by any
governmental authority questioning or challenging such compliance.
(f) Except as set forth on Schedule 4.11(f), each Plan
which is an "employee pension benefit plan" (as defined in section 3(2) of
ERISA) materially complies in form and in operation with all applicable
requirements of sections 401(a) and 501(a) of the Code; there have been no
amendments to any such Plan which are not the subject of a favorable
determination letter issued with respect thereto by the Internal Revenue
Service; and no event has occurred which will or could give rise to
disqualification of any such Plan under such sections or to a tax under section
511 of the Code. No Plan is funded by a "voluntary employees beneficiary
association" (within the meaning of section 501 (c)(9) of the Code).
(g) Each Plan which is a "group health plan" (within the
meaning of Section 4980B of the Code) has been administered in compliance with
the coverage requirements contained in the Consolidated Budget Reconciliation
Act of 1985 and as provided under Section 4908B of the Code and any rules and
regulations issued or proposed under the Code.
(h) None of the assets of any Plan are invested in
employer securities or employer real property.
(i) There have been no acts or omissions by the Company
or any ERISA Affiliate which have given rise to or may give rise to fines,
penalties, taxes or related charges under section 502 of ERISA or Chapters 43,
47, 68 or 100 of the Code for which the Company or any ERISA Affiliate may be
liable.
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(j) Actuarially adequate accruals for all obligations
under the Plans are reflected in the financial statements of the Company.
(k) Each Plan which is intended to be "qualified" within
the meaning of section 401(a) of the Code is so qualified and the trusts
maintained thereunder are exempt from taxation under section 501(a) of the Code.
(l) The Company has the right to amend or terminate any
Plan.
(m) Except as set forth on Schedule 4.11(m), no Plan
provides benefits, including, without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees of the
Company or any ERISA Affiliate beyond their retirement or other termination of
service (other than (i) coverage mandated by applicable law, or (ii) death
benefits or retirement benefits under any employee pension benefit plan).
(n) Except as provided in Schedule 4.11(n), the
consummation of the transactions contemplated by this Agreement will not (either
alone or upon the occurrence of any additional or subsequent event presently
contemplated by the Company) (i) entitle any current or former employee or
officer of the Company or any ERISA Affiliate to severance pay, unemployment
compensation or any other payment, except as expressly provided in this
Agreement, or (ii) accelerate the time of payment or vesting, or increase the
amount, of compensation due any such employee or officer.
(o) There are no pending (or, to the knowledge of the
Company, threatened or anticipated) material claims by, on behalf of, or against
any Plan, by any employee or beneficiary covered under any such Plan, or
otherwise involving any such Plan (other than routine claims for benefits).
SECTION 4.12 COMPLIANCE.
Neither the Company nor any of its Subsidiaries is in violation of, or
has violated, any applicable provisions of (i) any law, rule, statute, order,
ordinance or regulation, 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 the conduct thereof by
the Company and its Subsidiaries or (ii) any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise, or other instrument or
obligation to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or its or any of their respective
assets are bound or affected, which, individually or in the aggregate, would
result or reasonably be expected to result in a Material Adverse Effect. Without
limiting the generality of the foregoing, neither the Company nor any of its
Subsidiaries is in violation of, or has violated, any applicable provision of
the Foreign Corrupt Practices Act, the Trading with the Enemy Act or the
Anti-Economic Discrimination Act. The Company and its Subsidiaries have all
permits, licenses and franchises from governmental agencies required to conduct
their businesses as now being conducted, except for any permits, licenses,
franchises, the absence of which could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
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SECTION 4.13 ENVIRONMENTAL MATTERS.
(a) The Company and its Subsidiaries are in compliance
with all applicable Environmental Laws (as defined below) (which compliance
includes, but is not limited to, the possession by the Company and its
Subsidiaries of all permits and other governmental authorizations required under
applicable Environmental Laws, and compliance with the terms and conditions
thereof), except for any noncompliance that individually or in the aggregate
would not have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the Company
or any of its Subsidiaries is not in such compliance, and there are no past or
present actions, activities, circumstances, conditions, events or incidents that
might prevent or interfere with such compliance.
(b) There is no Environmental Claim (as defined below)
pending or to the knowledge of the Company threatened against the Company or any
of its Subsidiaries, or to the knowledge of the Company against any person whose
liability for any Environmental Claim the Company or any of its Subsidiaries has
or may have retained or assumed either contractually or by operation of law,
which individually or in the aggregate would have a Material Adverse Effect.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents (including, without limitation,
the release, emission, discharge, presence or disposal of any Hazardous Material
(as defined below)) which would form the basis of any Environmental Claim
against the Company or any of its Subsidiaries, or, to the knowledge of the
Company against any person whose liability for any Environmental Claim the
Company or any of its Subsidiaries has retained or assumed either contractually
or by operation of law, which individually or in the aggregate would have a
Material Adverse Effect.
(d) Except in compliance with the Environmental Laws and
as would not give rise to any material liability or obligation to the Company or
any of its Subsidiaries, neither the Company nor any of its Subsidiaries has,
and, to the knowledge of the Company no other person has, Released (as defined
below), placed, stored, buried or dumped Hazardous Materials produced by, or
resulting from, any business, commercial or industrial activities, operations or
processes, on, beneath or adjacent to any property owned, operated or leased or
formerly owned, operated or leased by the Company or any of its Subsidiaries,
and neither the Company nor any of its Subsidiaries has received written notice
that it is a potentially responsible party for the Cleanup (as defined below) of
any property, whether or not owned or operated by the Company or any of its
Subsidiaries, which individually or in the aggregate would reasonably be
expected to have a Material Adverse Effect.
(e) The Company and its Subsidiaries have delivered or
otherwise made available for inspection to Parent true, complete and correct
copies and results of any reports, studies, analyses, tests or monitoring
possessed or initiated by the Company or any of its Subsidiaries pertaining to
Hazardous Materials in, on, beneath or adjacent to the property now or
previously owned or leased by the Company or any of its Subsidiaries or
regarding the Company's and its Subsidiaries' compliance with applicable
Environmental Laws.
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(f) No transfers of permits or other governmental
authorizations under Environmental Laws, and no additional permits or other
governmental authorizations under Environmental Laws, will be required to permit
the Company and its Subsidiaries or the Surviving Corporation and its
subsidiaries, as the case may be, to be in full compliance with all applicable
Environmental Laws immediately after the Effective Time. To the extent that such
transfers or additional permits and other governmental authorizations are
required, the Company and its Subsidiaries agree to effect such transfers and
obtain such permits and other governmental authorizations prior to the
consummation of the Offer.
(g) The following terms as used in this Section shall
have the following meanings:
"CLEANUP" means all actions required to: (1) cleanup, remove, treat or
remediate Hazardous Materials in the outdoor environment; (2) prevent the
Release of Hazardous Materials so that they do not migrate, or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment; (3) perform pre-remedial investigations or post-remedial
monitoring; or (4) respond to any government requests for information or
documents in any way relating to cleanup, removal, treatment or remediation or
potential cleanup, removal, treatment or remediation of Hazardous Materials in
the indoor or outdoor environment.
"ENVIRONMENTAL CLAIM" means any claim, action, cause of action,
investigation or written notice by any person alleging actual or potential
liability or obligation (including, without limitation, actual or potential
liability for investigatory costs, cleanup costs, governmental response costs,
natural resources damages, property damages, personal injuries, or penalties)
arising out of, based on or resulting from (a) the presence, or Release or
threatened Release into the indoor or outdoor environment, of any Hazardous
Materials at any location, whether or not owned or operated by the Company or
any of its Subsidiaries, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, state, local and foreign laws
and regulations, as now or previously in effect, relating to pollution or
protection of human health or the environment, including, without limitation,
laws relating to Releases or threatened Releases of Hazardous Materials into the
indoor or outdoor environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
Release, disposal, transport or handling of Hazardous Materials and all laws and
regulations with regard to record keeping, notification, disclosure and
reporting requirements respecting Hazardous Materials.
"HAZARDOUS MATERIALS" means hazardous substances, toxic or extremely
toxic substances, oils, pollutants or contaminants or any substances identified
in or regulated under Environmental Laws as potentially harmful to human health,
natural resources or the environment.
"RELEASE" means any release, spill, emission, discharge, leaking,
pumping, injection, deposit, disposal, dispersal, leaching or migration into the
indoor or outdoor environment (including, without limitation, ambient air,
surface water, ground water land surface or
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subsurface strata) or into or out of any property, including without limitation
the movement of Hazardous Materials through or in air, soil, surface water,
groundwater or property.
SECTION 4.14 INTELLECTUAL PROPERTY.
(a) The Intellectual Property Rights (as defined below)
comprise all of the intellectual property rights necessary for or used in the
operation of the business of the Company and its Subsidiaries as currently
conducted or as currently proposed by the Company to be conducted (assuming the
transactions contemplated by this Agreement are not consummated). Schedule 4.14
sets forth a true, correct and complete list of all: (i) patented or registered
Intellectual Property Rights and pending patent applications or other
applications for registrations of the Intellectual Property Rights owned or
filed by or on behalf of the Company or any of its Subsidiaries; (ii) all
registered trademarks and service marks owned by the Company or any of its
Subsidiaries; (iii) all registered copyrights owned by the Company or any of its
Subsidiaries and material to the financial condition, operating results, assets,
operations or business prospects of the Company or any of its Subsidiaries; and
(iv) all licenses or similar agreements or arrangements relating to the
Intellectual Property Rights to which the Company or any Subsidiary of the
Company is a party, either (A) as licensee and that require payments aggregating
more than $5,000 in any 12-month period, or (B) as a licensor and that require
payments aggregating more than $50,000 in any 12-month period.
(b) Except as set forth in Schedule 4.14 (i) the Company
and its Subsidiaries own and possess all right, title and interest in and to, or
has a valid and enforceable license to use, the Intellectual Property Rights
necessary for the operation of the business of the Company and its Subsidiaries
as currently conducted or as currently proposed by the Company to be conducted
(assuming the transactions contemplated by this Agreement are not consummated)
free and clear of all Liens; (ii) no written claim by any third party contesting
the validity, enforceability, use or ownership of any of the Intellectual
Property Rights is currently outstanding or is threatened, and, to the knowledge
of the Company, there are no grounds for the same; (iii) no loss or expiration
of any material Intellectual Property Right or related group of material
Intellectual Property Rights is pending or, to the knowledge of the Company,
threatened; (iv) neither the Company nor any of its Subsidiaries has received
any written notice of, or has any knowledge of any facts which indicate a
likelihood of, any currently existing or otherwise unresolved infringement or
misappropriation by, or conflict with, any third party with respect to the
Intellectual Property Rights (including, without limitation, any demand or
request that the Company or any of its Subsidiaries license any rights from a
third party); and (v) to the Company's knowledge neither the Company nor its
Subsidiaries has infringed, misappropriated or otherwise conflicted with any
intellectual property rights or other similar rights of any third parties, other
than any of the foregoing which may have occurred in the past and have been
fully and finally resolved prior to the date of this Agreement and neither the
Company nor its Subsidiaries has any knowledge of any infringement,
misappropriation or conflict which will occur as a result of the continued
operation of the business of the Company and its Subsidiaries as currently
conducted or as currently proposed by the Company to be conducted (assuming the
transaction contemplated by this Agreement are not consummated).
(c) The transactions contemplated hereby (including the
Offer and the Merger) will have no adverse effect on the right, title and
interest of the Company and its Subsidiaries in and
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to any material Intellectual Property Rights or the validity and enforceability
thereof. All material Intellectual Property Rights owned by the Company will be
the property of the Surviving Corporation as a result of the Merger.
(d) Except as set forth on Schedule 4.14, no copy of
software owned by the Company is subject to or held in escrow or is in any third
party's possession, other than the object code version in accordance with the
licenses listed on Schedule 4.14 hereto and other than for software tools
distributed by the Company to its customers in the ordinary course of business.
(e) For purposes of this Agreement, "INTELLECTUAL
PROPERTY RIGHTS" means all of the following owned by, issued to or licensed to
the Company or any of its Subsidiaries, along with all income, royalties,
damages and payments due or payable to the Company or any of its Subsidiaries at
the Effective Time or thereafter (including, without limitation, damages and
payments for past or future infringements or misappropriations thereof), the
right to sue and recover for past infringements or misappropriations thereof and
any and all corresponding rights that are secured by the Company or any of its
Subsidiaries throughout the world: patents, patent applications, patent
disclosures and inventions (whether or not patentable and whether or not reduced
to practice and including, without limitation, all inventions of employees of
the Company or any of its Subsidiaries) and any reissues, continuations,
continuations-in-part, revisions, extensions or reexaminations thereof;
trademarks, service marks, trade dress, logos, trade names and corporate names,
together with all goodwill associated therewith (including, without limitation,
the use of the current corporate name and trade names(s) listed on Schedule 4.14
and all translations, adaptations, derivative works and combinations of the
foregoing); copyrights and copyrightable works; Internet domain names; mask
works; and registrations, applications and renewals for any of the foregoing;
trade secrets and confidential information (including, without limitation,
ideas, formulae, compositions, know-how, manufacturing and production processes
and techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, financial and accounting data,
business and marketing plans, and customer and supplier lists and related
information; computer software (in object code and source code form and
including, without limitation, data, related data bases and documentation,
including all works in progress relating to corrections, modifications or
enhancements thereto as well as all current and prior (but only to the extent
still maintained) versions of such software); other intellectual property
rights; and all copies and tangible embodiments of the foregoing (in whatever
form or medium), in each case including, without limitation, the items set forth
on Schedule 4.14.
SECTION 4.15 SIGNIFICANT AGREEMENTS.
Schedule 4.15 includes a complete and correct list of all contracts,
agreements, indentures, leases, mortgages, licenses, plans, arrangements,
understandings, commitments (whether oral or written) and instruments to which
the Company or any of its Subsidiaries is a party (collectively, "CONTRACTS")
that are material to the Company and its Subsidiaries individually or in the
aggregate. Without limiting the generality of the foregoing, Schedule 4.15 lists
the following: (i) each Contract filed as an exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, (ii) any
Contract calling for any payment by or to the Company of $100,000 or more or
payments in any twelve-month period aggregating $150,000 or more, (iii) any
Contract relating to material Intellectual Property
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Rights, (iv) any Contract purporting to restrict or prohibit the Company or any
affiliate or Subsidiary of the Company from engaging or competing in any
business or engaging or competing in any business in any geographic area, and
(v) any Contract between the Company or any of its Subsidiaries, on the one
hand, and any officer or director of the Company or any person who, to the
knowledge of the Company is the beneficial owner of more than 25,000 Shares on
the other hand (the Contracts listed in Schedule 4.15, collectively, the
"SIGNIFICANT AGREEMENTS"). The Company has heretofore furnished to Parent
complete and correct copies of the Significant Agreements, each as amended or
modified to the date hereof (including any waivers with respect thereto). Since
December 31, 1998, there have been no transactions between the Company or any of
its Subsidiaries, on the one hand, and the other parties to the Significant
Agreements or any of their respective affiliates, on the other hand, other than
transactions in the ordinary course of business consistent with past practice
pursuant to and in accordance with the terms of the Significant Agreements. Each
of the Significant Agreements is in full force and effect and enforceable in
accordance with its terms, except to the extent such enforceability may be
limited by (x) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and (y) general principals of equity regardless of whether determined in equity
or at law. Neither the Company nor any of its Subsidiaries has received any
notice (written or, to the knowledge of the Company, oral) of cancellation or
termination of any of the Significant Agreements. No Significant Agreement is
the subject of, or, to the knowledge of the Company, has been threatened to be
made the subject of, any arbitration, suit or other legal proceeding. With
respect to any Significant Agreement which by its terms will terminate as of a
certain date unless renewed or unless an option to extend such Significant
Agreement is exercised, neither the Company nor any of its Subsidiaries has
received any notice (written or, to the knowledge of the Company, oral), that
any such Significant Agreement will not be so renewed or that any such extension
option will not be exercised. There exists no event of default or occurrence,
condition or act on the part of the Company or any of its Subsidiaries or, to
the knowledge of the Company, on the part of any of the other parties to the
Significant Agreements which constitutes or would constitute (with notice or
lapse of time or both) a material breach of or material default under any of the
Significant Agreements.
SECTION 4.16 INSURANCE.
Schedule 4.16 sets forth a complete and correct list of all insurance
policies (including a brief summary of the nature and terms thereof and any
amounts paid or payable to the Company or any of its Subsidiaries thereunder)
providing material coverage in favor of the Company or any of its Subsidiaries
or any of their respective assets. Each such policy is in full force and effect,
no notice (written or, to the knowledge of the Company, oral) of termination,
cancellation, reduction of coverage or reservation of rights or notice of
intention to terminate, cancel, reduce coverage or reserve rights has been
received with respect to any such policy, there is no default with respect to
any provision contained in any such policy, and there has not been any failure
to give any notice or present any claim under any such policy in a timely
fashion or in the manner or detail required by any such policy, except for any
such failures to be in full force and effect, any such terminations,
cancellations, reservations or defaults, or any such failures to give notice or
present claims which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. The coverage provided by such
policies is appropriate and
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reasonable in scope and amount, in light of the risks attendant to the business
and activities of the Company and its Subsidiaries and all premiums due on such
policies have been paid in full.
SECTION 4.17 TITLE TO AND CONDITION OF PROPERTIES; LEASES.
(a) Each of the Company and its Subsidiaries (i) except as set forth on
Schedule 4.17, has good and marketable title to all of the properties and assets
reflected on the Company's December 31, 1998 audited consolidated balance sheet
contained in the Company's Form 10-K for the fiscal year ended December 31, 1998
filed with the SEC (the "Balance Sheet") as being owned by the Company or its
Subsidiaries, except for any property or asset sold or otherwise disposed of
since the date thereof in the ordinary course of business and consistent with
past practice.
(b) The Company does not own any real property. Schedule 4.17 sets
forth a complete list of all material real property and material personal
property leases of the Company and its Subsidiaries. All such leases are valid,
binding and enforceable against the Company and its Subsidiaries (and, to the
knowledge of the Company, against each other party thereto) in accordance with
their respective terms (except to the extent such enforceability may be limited
by (i) bankruptcy, insolvency reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and (ii)
general principals of equity regardless of whether determined in equity or at
law), and there does not exist, under any lease of real property or personal
property, any material default or any event which, with notice or lapse of time
or both, would constitute a material default by the Company or any of its
Subsidiaries or, to the knowledge of the Company, by any other party thereto.
(c) The Company or the relevant Subsidiary or Subsidiaries has valid,
effective, enforceable and continuing leasehold rights in all property leased by
it under such leases, free and clear of all encumbrances, except (i) statutory
liens securing payments not yet due and (ii) such imperfections or
irregularities of title, claims, liens, charges, security interests or
encumbrances as do not materially affect the use of the properties or assets
subject thereto or affected thereby or otherwise materially impair the business
operations at such properties. The assets and properties of the Company and its
Subsidiaries are in good operating condition and repair, subject to normal wear
and tear, and are adequate for the uses to which they are being put, all of
which are lawful.
(d) Except for the "discounted loan transactions" described on Schedule
4.15, the Company is not a party to any executory contract to sell or transfer
any part of any leasehold interest of the Company. True and accurate copies of
all leases, and of all amendments, supplements, extensions and modifications
thereof, have been delivered to Acquisition or Parent by the Company.
SECTION 4.18 LABOR MATTERS.
(a) Neither the Company nor any of its Subsidiaries is a party to any
collective bargaining or other labor union contract applicable to persons
employed by the Company or any of its Subsidiaries, no collective bargaining
agreement is being negotiated by the Company or any of its Subsidiaries and the
Company has no knowledge of any activities or proceedings of
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any labor union to organize any of their respective employees. There is no labor
dispute, strike or work stoppage against the Company or any of its Subsidiaries
pending or, to the knowledge of the Company, threatened which may interfere with
the respective business activities of the Company or any of its Subsidiaries.
(b) Except as disclosed on Schedule 4.18, there are no complaints,
charges or claims against the Company pending or, to the Company's knowledge,
threatened to be brought or filed with any Governmental Body based on, arising
out of, in connection with, or otherwise relating to, the employment or
termination of employment of any Company Employee (as defined below) by the
Company.
(c) The Company is in material compliance with the provisions of the
Occupational Safety and Health Act and Workers Adjustment and Retraining
Notification Act ("WARN"), and with respect to the Company Employees, all other
federal, state and local laws, regulations and orders relating to wages, hours,
collective bargaining, discrimination, harassment, civil rights, safety and
health and workers' compensation.
(d) Schedule 4.18(d) sets forth a list containing the name, position
and date of employment of each employee recorded on the Company's payroll
records as of June 9, 1999 (a "COMPANY EMPLOYEE"). A list setting forth each
Company Employee's current base salary or wage rate, including without
limitation commission or bonus or incentive compensation schedule, has been
delivered to the Parent by the Company.
(e) Neither the Company nor any of its Subsidiaries is a party to any
severance contract, salary continuation agreement or change of control agreement
or other similar contract or any other contract providing for the payment of
severance or benefits to any current or former Company Employee upon termination
or a change of control, other than those set forth in Schedule 4.11(a), Schedule
4.11(m) and Schedule 4.11(n) and other than the agreements executed by or
policies provided to employees generally, copies of which have been delivered to
the Parent and Acquisition.
SECTION 4.19 VOTING REQUIREMENTS.
The affirmative vote of a majority of the outstanding Shares approving
and adopting this Agreement and the Merger is the only vote of the holders of
any class or series of Company Securities necessary to approve this Agreement
and the transactions contemplated by this Agreement, including, without
limitation, the Merger. Assuming the satisfaction of the Minimum Condition, upon
the purchase of Shares pursuant to the Offer, Acquisition will own Shares having
sufficient voting power to approve the Merger without the vote of any other
holder of voting securities of the Company.
SECTION 4.20 STATE TAKEOVER LAWS; NO ANTI-TAKEOVER MEASURES.
The provisions of Section 14-2-1111 and Section 14-2-1132 of Georgia
Law are not applicable to the Company or the transactions contemplated by this
Agreement, including, without limitation, the Offer and the Merger, by reason of
the provisions of Section 14-2-1113 and Section 14-2-1133, respectively, of
Georgia Law. The Company has taken all steps
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necessary irrevocably to exempt the Merger and the other transactions
contemplated by this Agreement from any applicable provisions of Georgia Law,
the Company's Articles of Incorporation and the Company's Bylaws which would
have the effect of (i) prohibiting or materially restricting the Company's
ability to perform its obligations under this Agreement or its ability to
consummate the Merger and the other transactions contemplated hereby; (ii)
invalidating or voiding this Agreement or any provision hereof; or (iii)
delaying, preventing or materially reducing the expected benefits to Parent or
Acquisition of the transactions contemplated by this Agreement. The Company has
not issued or adopted, and is not subject to, any shareholder rights plan or
agreement, "poison pill" or any similar security, plan or agreement.
SECTION 4.21 CODES AND POLICIES.
The Company has heretofore furnished Parent with true and correct
copies of all material corporate codes of conduct, policy manuals or other
materials setting forth the Company's or any of its Subsidiaries' policies,
procedures or standards of general applicability relating to employment or
operations.
SECTION 4.22 YEAR 2000 COMPLIANCE.
The Company implemented its Y2K readiness assessment project in 1998. A
full-time consultant was retained to manage the project under the general
supervision of senior management of the Company. The project included assessment
of the various areas of the Company's business to identify areas of possible
concern. Project plans were developed and implemented to test compliance in
suspect areas and to provide for remediation of identified problems, and such
plans were provided by the Company to Parent. The Company's program and status
of its activities have been reviewed by its Board of Directors. The Company's
descriptions and disclosures in its Exchange Act reports under the heading "Year
2000" (and in its Y2K program information on its web site) accurately disclose
and reflect the Company's Year 2000 analysis, remediation and contingency plans
and activities. The Company has reviewed with representatives of Parent and
Acquisition the Company's Year 2000 third party communications program and the
results of the Company's Year 2000 third party communications program to date in
that regard. As a result of the third party communications program and the
Company's related Year 2000 remediation initiatives, the Company is not
presently aware of any Year 2000 compliance concerns which would result in a
Material Adverse Effect.
SECTION 4.23 U.K. OPERATIONS. Except as set forth on Schedule
4.23, neither the Company nor any of its Subsidiaries (a) has any obligation
under any Contract associated with the business conducted (whether directly or
indirectly) in the United Kingdom that is not terminable upon less than 90 days'
notice or (b) would be subject to any termination, severance or other similar
obligation respecting any employee in the United Kingdom upon the cessation of
such employee's employment or a substantial diminution in such employee's
compensation or responsibilities.
SECTION 4.24 OPINION OF FINANCIAL ADVISOR. Deutsche Bank has
delivered to the Board its written opinion dated June 28, 1999 to the effect
that, as of the date of such opinion,
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the consideration to be received by the holders of Shares pursuant to the Offer
and the Merger is fair to such holders from a financial point of view.
SECTION 4.25 EMPLOYMENT AND LABOR CONTRACTS. Neither the Company
nor any of its Subsidiaries is a party to any employment contract or other
similar contract or any other contract for the provision of management or
consulting services to the Company or any of its Subsidiaries with any past or
present officer, director, employee or, to the best of the Company's knowledge,
any entity affiliated with any past or present officer, director or employee,
other than those set forth in Schedule 4.25 and other than the agreements
executed by employees generally, the forms of which have been delivered to
Parent and Acquisition.
SECTION 4.26 DISCLOSURE. All of the facts and circumstances not
required to be disclosed as exceptions under or to any of the foregoing
representations and warranties made by the Company in this Article IV by reason
of any minimum disclosure requirement in any such representation and warranty
would not, in the aggregate, have a Material Adverse Effect. The information
contained in the Disclosure Schedules to this Agreement (and any updated
Disclosure Schedule) as it relates to the representations and warranties made by
the Company in this Article IV does 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 information or statements contained or
referenced therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
ULTIMATE PARENT, PARENT AND ACQUISITION
Each of Ultimate Parent, Parent and Acquisition represents and warrants
to the Company as follows:
SECTION 5.1 ORGANIZATION.
Each of Ultimate Parent, Parent and Acquisition is a corporation duly
organized, validly existing and in good standing under the laws of the state or
country of its incorporation and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as now
being conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not, individually or in
the aggregate, have a material adverse effect on Ultimate Parent's, Parent's or
Acquisition's ability to consummate the transactions contemplated by this
Agreement.
SECTION 5.2 AUTHORITY.
Each of Ultimate Parent, Parent and Acquisition has all necessary
corporate power and authority to execute and deliver this Agreement and, subject
to Article VII with respect to the Merger, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the board of
directors of Ultimate Parent, Parent and by the board of directors and the sole
stockholder of Acquisition,
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and no other corporate proceedings on the part of Ultimate Parent, Parent or
Acquisition are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than with respect to the Merger and the
filing of appropriate merger documents as required by Georgia Law and Delaware
Law). This Agreement has been duly and validly executed and delivered by each of
Ultimate Parent, Parent and Acquisition and constitutes a legal, valid and
binding agreement of each of Parent and Acquisition, enforceable against each of
Ultimate Parent, Parent and Acquisition in accordance with its terms.
SECTION 5.3 NON-CONTRAVENTION: REQUIRED FILINGS AND CONSENTS.
(a) The execution, delivery and performance by Ultimate
Parent, Parent and Acquisition of this Agreement and the consummation of the
transactions contemplated hereby (including the Merger) do not and will not (i)
contravene or conflict with the Certificate of Incorporation or Bylaws of
Ultimate Parent, Parent or Acquisition; (ii) assuming that all consents,
authorizations and approvals contemplated by subsection (b) below have been
obtained and all filings described therein have been made, contravene or
conflict with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to Ultimate
Parent, Parent or Acquisition or any of their respective assets; (iii) conflict
with, or result in the breach or termination of any provision of or constitute a
default (with or without the giving of notice or the lapse of time or both)
under, or give rise to any right of termination, cancellation, or loss of any
benefit to which Ultimate Parent, Parent or Acquisition is entitled under any
provision of, or allow the acceleration of the performance of, any obligation of
Ultimate Parent, Parent or Acquisition under, any indenture, mortgage, deed of
trust, lease, license, contract, instrument or other agreement to which Ultimate
Parent, Parent or Acquisition is a party or by which Ultimate Parent, Parent or
Acquisition or any of their respective assets is subject or bound; or (iv)
result in the creation or imposition of any Lien on any asset of Ultimate
Parent, Parent or Acquisition, except in the case of clauses (ii), (iii) and
(iv) for any such contraventions, conflicts, violations, breaches, terminations,
defaults, cancellations, losses, accelerations and Liens which would not,
individually or in the aggregate, have a material adverse effect on Ultimate
Parent's, Parent's or Acquisition's ability to consummate the transactions
contemplated by this Agreement.
(b) The execution, delivery and performance by Ultimate
Parent, Parent and Acquisition of this Agreement and the consummation by
Ultimate Parent, Parent and Acquisition of the transactions contemplated hereby
(including the Merger) require no action by or in respect of, or filing with,
any governmental body, agency, official or authority (whether domestic, foreign
or supranational) other than (i) the filing of the Georgia Filing in accordance
with Georgia Law and the Delaware Filing in accordance with Delaware Law; (ii)
compliance with any applicable requirements of the HSR Act; (iii) compliance
with any applicable requirements of the Exchange Act and state securities,
takeover and Blue Sky laws; and (iv) such actions or filings which, if not taken
or made, would not, individually or in the aggregate, reasonably be expected to
prevent or materially delay the consummation of the Offer or the Merger.
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SECTION 5.4 OFFER DOCUMENTS; SCHEDULE 14D-9; PROXY STATEMENT.
Neither the Offer Documents, nor any of the information provided by
Ultimate Parent, Parent or Acquisition and/or by their auditors, legal counsel,
financial advisors or other consultants or advisors specifically for use in the
Schedule 14D-9 shall, on the respective dates the Offer Documents, the Schedule
14D-9 or any supplements or amendments thereto are filed with the Commission or
on the date first published, sent or given to the Company's stockholders, as the
case may be, 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. None of the information provided by Ultimate Parent,
Parent or Acquisition or by their auditors, attorneys, financial advisors or
other consultants or advisors specifically for use in the Proxy Statement shall,
at the time filed with the Commission, at the time mailed to the Company's
stockholders, at the time of the Stockholders' Meeting or at 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 in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. Notwithstanding the foregoing, neither Ultimate Parent, Parent nor
Acquisition makes any representation or warranty of any kind with respect to any
information provided by the Company and/or by its auditors, legal counsel,
financial advisors or other consultants or advisors specifically for use in the
Offer Documents. The Offer Documents will comply as to form in all material
respects with the provisions of the Exchange Act and the rules and regulations
thereunder.
SECTION 5.5 NO PRIOR ACTIVITIES.
Since the date of its incorporation, Acquisition has not engaged in any
activities other than in connection with or as contemplated by this Agreement or
in connection with arranging any financing required to consummate the
transactions contemplated hereby.
SECTION 5.6 FINANCING.
Acquisition has available to it all funds necessary to satisfy its
obligations under this Agreement, including, without limitation, the obligation
to pay the Per Share Amount pursuant to the Offer and the Merger Consideration
pursuant to the Merger and to pay all related fees and expenses in connection
with the Offer and the Merger.
SECTION 5.7 NO FINDER'S FEE.
No broker, finder, investment banker or other intermediary (other than
Credit Suisse First Boston Corporation) is entitled to any brokerage, finder's,
financial advisory or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by and
on behalf of Ultimate Parent, Parent or Acquisition.
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ARTICLE VI
COVENANTS
SECTION 6.1 CONDUCT OF BUSINESS OF THE COMPANY.
Except as otherwise expressly provided in this Agreement, during the
period from the date hereof to the time the directors are appointed pursuant to
Section 2.10 hereof, the Company and its Subsidiaries will each conduct its
operations in the ordinary course of business consistent with past practice, and
the Company and its Subsidiaries will each use its reasonable best efforts to
preserve intact, in all respects material to the Company, its business
organization, to keep available, in all respects material to the Company and its
Subsidiaries taken as a whole, the services of its officers and employees and to
maintain, in all respects material to the Company, existing relationships with
licensors, licensees, suppliers, contractors, distributors, customers and others
having business relationships with it. As used in this Section 6.1, the term
"CONSENT" shall mean the consent (written or verbal) of any authorized officer
of Parent, which (x) shall not be unreasonably withheld or delayed, and (y)
shall be either granted or withheld within twenty-four (24) hours of receiving
the Company's written or verbal request (provided, that Parent's failure to
respond within such period shall constitute Consent to the requested action).
Without limiting the generality of the foregoing, and except as otherwise
expressly provided in this Agreement or as required by law, prior to the Tender
Closing, neither the Company nor any of its Subsidiaries will, without the prior
written consent of Parent:
(a) amend or propose to amend its Articles of
Incorporation or Bylaws or equivalent organizational documents, or increase or
propose to increase the number of directors of the Company or any of its
Subsidiaries;
(b) authorize for issuance, issue, sell, deliver or agree
or commit to issue, sell or deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or otherwise)
any Company Securities or securities of any of its Subsidiaries, stock of any
class or any other securities or equity equivalents (including, without
limitation, stock appreciation rights of the Company or any of its
Subsidiaries), except as required by option agreements in effect as of the date
hereof, or amend any of the terms of any such securities or agreements
outstanding as of the date hereof;
(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 the capital stock of its Subsidiaries, or redeem,
repurchase or otherwise acquire any of its securities or any securities of its
Subsidiaries;
(d) Without Consent: (i) incur any indebtedness for
borrowed money or issue any debt securities or, assume, guarantee or endorse the
obligations of any other person in excess of $200,000; (ii) make any loans,
advances or capital contributions to, or investments in, any other person (other
than to wholly owned Subsidiaries of the Company); (iii) pledge or otherwise
encumber shares of capital stock of the Company or any of its Subsidiaries; or
(iv) mortgage or pledge any of its assets, tangible or intangible, or create or
suffer to exist any Lien thereupon;
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(e) Without Consent, enter into, adopt or (except as may
be required by law) amend or terminate any bonus, profit sharing, compensation,
severance, termination, stock option, stock appreciation right, restricted
stock, performance unit, stock equivalent, stock purchase, pension, retirement,
deferred compensation, employment, severance or other employee benefit
agreement, trust, plan, fund or other arrangement for the benefit or welfare of
any director, officer or employee, or (except, in the case of employees who are
not officers or directors, for normal compensation increases in the ordinary
course of business consistent with past practice that, (x) in the aggregate do
not result in a material increase in benefits or compensation expense to the
Company, and (y) are pursuant to Consent) increase in any manner the
compensation or benefits of any director, officer or employee or pay any benefit
not required by any plan or arrangement as in effect as of the date hereof
(including, without limitation, the granting of stock options, restricted stock,
stock appreciation rights or performance units);
(f) Except upon Consent, acquire, sell, lease, encumber,
transfer or dispose of any assets outside the ordinary course of business
consistent with past practice or any assets which in the aggregate are material
to the Company and its Subsidiaries, taken as a whole, or except upon Consent,
enter into, modify, amend or terminate any material contract, agreement,
commitment or transaction except that the Company may continue to engage in the
activity of selling equipment leases;
(g) except as may be required as a result of a change in
law or in generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(h) (i) acquire (by merger, consolidation, or acquisition
of stock or assets) any corporation, partnership or other business organization
or division thereof; (ii) except as set forth on Schedule 6.1(h), without
Consent authorize any new capital expenditure or expenditures which,
individually, is in excess of $50,000 or, in the aggregate, are in excess of
$200,000; or (iii) enter into or amend any contract, agreement, commitment or
arrangement with respect to any of the foregoing;
(i) make any tax election or settle or compromise any
material Tax liability;
(j) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or otherwise
in excess of $200,000 in the aggregate), other than the payment, discharge or
satisfaction upon Consent or in the ordinary course of business consistent with
past practice or in accordance with their terms, of liabilities reflected or
reserved against in the consolidated financial statements (or the notes thereto)
of the Company and its consolidated Subsidiaries or incurred in the ordinary
course of business consistent with past practice (provided, that payment of
trade payables in the ordinary course of business shall not require Consent or
otherwise be restricted hereunder);
(k) except in the ordinary course of business consistent
with past practice and upon Consent, terminate, modify, amend or waive
compliance with any provision of, any of the Significant Agreements, or fail to
take any action necessary to preserve the benefits of any Significant Agreement
to the Company or any of its Subsidiaries;
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(l) enter into any agreement providing for the
acceleration of payment or performance or other consequence as a result of the
transactions contemplated by this Agreement or any other change in control of
the Company; or
(m) except in the ordinary course of business consistent
with past practice in connection with the sale of equipment or upon Consent,
enter into any agreement providing for any license, sale or assignment of or
otherwise transfer any Intellectual Property Rights or grant any covenant not to
sue with respect to any of its Intellectual Property Rights or otherwise.
SECTION 6.2 ACCESS TO INFORMATION.
(a) Subject to applicable law and the agreements set
forth in Section 6.2(b), between the date hereof and the Effective Time, the
Company will give each of Ultimate Parent, Parent and Acquisition and their
counsel, financial advisors, auditors, and other authorized representatives
reasonable access to all employees, plants, offices and other facilities and to
all books and records of the Company and its Subsidiaries, will permit each of
Ultimate Parent, Parent and Acquisition and their respective counsel, advisors,
auditors and other authorized representatives to make such inspections as
Ultimate Parent, Parent or Acquisition may reasonably require and will cause the
Company's officers or representatives and those of its Subsidiaries to furnish
as soon as reasonably practicable to Ultimate Parent, Parent or Acquisition or
their representatives such financial and operating data and other information
with respect to the business and properties of the Company and any of its
Subsidiaries as Ultimate Parent, Parent or Acquisition may from time to time
reasonably request. No investigation pursuant to this Section 6.2 shall affect
any representations or warranties of the parties herein or the conditions to the
obligations of the parties hereunder.
(b) The confidentiality agreement dated June 18, 1998, as
amended on May 18, 1999 (the "CONFIDENTIALITY AGREEMENT"), between the Company
and Parent shall remain in full force and effect in accordance with its terms
except that, notwithstanding any provision of the Confidentiality Agreement,
Parent and Acquisition may (i) enter into this Agreement, (ii) acquire Shares
pursuant to the Offer and the Merger, (iii) make any further proposals,
consummate any further transactions involving the Company or its stockholders or
take any other actions respecting the Company, the Shares or any stockholder of
the Company, and (iv) make such disclosures in connection with the Offer, the
Offer Documents or the matters set forth in (iii) above as Parent and
Acquisition may determine in their reasonable discretion to be necessary or
appropriate.
SECTION 6.3 REASONABLE BEST EFFORTS.
Subject to the terms and conditions herein provided, including, without
limitation, those of Section 6.8, each of the parties hereto agrees to use its
reasonable best efforts to timely take, or cause to be taken, all actions, and
to do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. Without limiting the generality of
the foregoing, Ultimate Parent, Parent, Acquisition and the Company shall
cooperate with one another (i) in the preparation and filing of the Offer
Documents, the Schedule 14D-9, the Proxy Statement and any required filings
under the HSR Act and the other laws referred to in Sections 4.4(b), 4.20 and
5.3(b); (ii) in determining whether action by or in respect of, or filing with,
any governmental
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body, agency, official or authority (either domestic or foreign) is required,
proper or advisable or any actions, consents, waivers or approvals are required
to be obtained from parties to any contracts, in connection with the
transactions contemplated by this Agreement; and (iii) in seeking timely to
obtain any such actions, consents and waivers and to make any such filings. In
case at any time after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers and
directors of each party hereto shall take all such necessary action.
SECTION 6.4 PUBLIC ANNOUNCEMENTS.
Except as may be required by applicable law or by applicable rules of
any securities exchange, prior to the earlier to occur of (i) the Effective
Time, (ii) the termination of this Agreement pursuant to Article VIII, or (iii)
the making of an Acquisition Proposal by a third party, neither Ultimate Parent,
Parent and Acquisition, on the one hand, nor the Company, on the other hand,
shall issue any press release or otherwise make any public statements with
respect to the transactions contemplated by this Agreement without the prior
consent of the other, which consent shall not be unreasonably withheld, except
as may be required by applicable law or applicable rules of any securities
exchange; provided, however, that Ultimate Parent, Parent, Acquisition and the
Company will provide the other party with a copy of press releases issued or
notice of public statement with respect to the transactions contemplated by this
Agreement prior to issuance thereof for the other party(ies) prior approval,
which approval shall not be unreasonably withheld. The initial joint
announcement of the transactions contemplated by this Agreement shall be in the
form attached hereto as ANNEX B.
SECTION 6.5 INDEMNIFICATION.
(a) Ultimate Parent and Parent shall cause the Surviving
Corporation to keep in effect for a period not less than six years from the
Effective Time, the provisions in its Articles of Incorporation and Bylaws
containing the provisions with respect to exculpation of director and officer
liability and indemnification set forth in the Articles of Incorporation and
Bylaws of the Company on the date of this Agreement to the fullest extent
permitted under applicable law, which shall not, during such six-year period, be
amended, repealed or otherwise modified except as required by applicable law or
except to make changes permitted by applicable law that would enlarge the
exculpation or rights of indemnification thereunder. Prior to the commencement
of the Offer, the Company shall enter into contractual indemnification
agreements with each of the Company's directors substantially in the form
attached hereto as ANNEX D.
(b) Ultimate Parent and Parent shall cause the Surviving
Corporation to maintain in effect for six years from the Effective Time, if
available, the coverage provided by the current directors' and officers'
liability insurance policies maintained by the Company (provided that the
Surviving Corporation may substitute therefor policies of at least the same
coverage containing terms and conditions which are not materially less
favorable) with respect to matters occurring prior to the Effective Time.
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SECTION 6.6 NOTIFICATION OF CERTAIN MATTERS.
The Company shall give prompt notice to Ultimate Parent, Parent or
Acquisition, and Ultimate Parent, Parent or Acquisition shall give prompt notice
to the Company, as the case may be, of (i) the occurrence, or non-occurrence, of
any event the respective occurrence, or non-occurrence, of which would cause, or
would be reasonably likely to cause, any representation or warranty of such
person contained in this Agreement to be untrue or inaccurate and (ii) any
failure of the Company, Ultimate Parent, Parent or Acquisition, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, that the delivery of any
notice pursuant to this Section 6.6 shall not limit or otherwise affect the
remedies available hereunder to the party receiving such notice.
SECTION 6.7 TERMINATION OF STOCK PLANS.
Prior to the consummation of the Offer, the Board (or, if appropriate,
any committee thereof) shall adopt such resolutions or take such other actions
as are required to ensure that, following the Effective Time, no participant in
any stock, stock option, stock appreciation or other benefit plan of the Company
or any of its Subsidiaries shall have any right thereunder to acquire any
capital stock of the Surviving Corporation or any affiliate thereof.
SECTION 6.8 NO SOLICITATION.
(a) The Company shall immediately cease any existing
discussions or negotiations with any third parties conducted prior to the date
hereof with respect to any Acquisition Proposal (as defined below). The Company
shall not, directly or indirectly, through any officer, director, employee,
representative or agent or any of its Subsidiaries or otherwise, (i) solicit,
initiate, continue or encourage any inquiries, proposals or offers that
constitute, or could reasonably be expected to lead to, a proposal or offer for
a merger, consolidation, business combination, sale of substantial assets, sale
of shares of capital stock (including, without limitation, by way of a tender
offer), reorganization, extraordinary joint venture or similar transaction
involving the Company or any of its Subsidiaries, other than the transactions
contemplated by this Agreement (any of the foregoing inquiries, proposals or
offers being referred to in this Agreement as an "ACQUISITION Proposal"), (ii)
solicit, initiate, continue or engage in negotiations or discussions concerning,
or provide any non-public information or data to any person relating to, any
Acquisition Proposal, or (iii) agree to, approve or recommend any Acquisition
Proposal; provided, that nothing contained in this Section 6.8 shall prevent the
Company from (A) prior to the purchase by Acquisition of Shares pursuant to the
Offer, furnishing non-public information or data to, or entering into
discussions or negotiations with, any person in connection with an unsolicited
bona fide written Acquisition Proposal by such person if and only to the extent
that (1) the Company's directors determine in good faith, based upon the advice
of its financial advisors, that such Acquisition Proposal would, if consummated,
result in a transaction more favorable to the Company's stockholders from a
financial point of view than the transactions contemplated by this Agreement and
the Company's directors determine in good faith, based upon the advice of legal
counsel, that such action is required for the discharge of their fiduciary
duties to stockholders under applicable law, (2) prior to furnishing such
non-public information to, or entering into discussions or negotiations with,
such person, the Company receives from such person an executed confidentiality
agreement with terms
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no less favorable to the Company than those contained in the Confidentiality
Agreement and (3) simultaneously with furnishing such non-public information to
such person, the Company delivers to Parent a copy of all such information; or
(B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to
an Acquisition Proposal. If the Company's directors determine in good faith that
any Acquisition Proposal constitutes a Superior Proposal (as defined below), the
Board shall promptly give written notice, specifying the parties to and the
structure and material terms of such Superior Proposal (a "NOTICE OF SUPERIOR
PROPOSAL"), to Parent. The Board may (subject to the following sentences of this
subsection and compliance with Section 8.1(f) and Section 8.2(a)), to the extent
the Company's directors determine in good faith based upon advice of legal
counsel that such action is necessary in order to comply with their fiduciary
duties under applicable law, approve or recommend any such Superior Proposal, or
approve or authorize the Company's entering into an agreement with respect to
such Superior Proposal, approve the solicitation of additional takeover or other
investment proposals or, if permitted by Section 8.1(f), terminate this
Agreement, in each case at any time after the fifth business day following
delivery to Parent of the Notice of Superior Proposal. The Company may take any
of the foregoing actions pursuant to the preceding sentence only if an
Acquisition Proposal that was a Superior Proposal at the time of delivery of a
Notice of Superior Proposal continues to be a Superior Proposal in light of any
improved transaction proposed by Parent prior to the expiration of the five
business day period specified in the preceding sentence. For purposes of this
Agreement, a "SUPERIOR PROPOSAL" means any bona fide Acquisition Proposal that
the Company's directors determine, in their good faith reasonable judgment based
on the advice of their financial advisors, to be made by a person with the
financial ability to consummate such proposal and to provide greater aggregate
value to the Company's stockholders than the transactions contemplated by this
Agreement or otherwise proposed by Parent as contemplated above.
(b) The Company shall notify Parent immediately (and in
no event later than 48 hours) after receipt by the Company of any Acquisition
Proposal or any request for non-public information in connection with an
Acquisition Proposal or for access to the properties, books or records of the
Company by any person that informs the Company that it is considering making, or
has made, an Acquisition Proposal. Such notice shall be made orally and in
writing and shall indicate in reasonable detail the identity of the offeror and
the terms and conditions of such proposal, inquiry or contract.
SECTION 6.9 PARENT GUARANTEE OF ACQUISITION OBLIGATIONS. Parent
hereby guarantees the full and faithful performance of all obligations of
Acquisition hereunder including the obligations to pay the Per Share Amount, the
Merger Consideration and the fee described in Section 8.2(c).
SECTION 6.10 QUALIFICATION. The Company will exert best
commercially reasonable efforts to become duly qualified or licensed and in good
standing to do business in each jurisdiction (including foreign country) set
forth in Schedule 4.1(b) except where the failure to do so would not have a
Material Adverse Effect.
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SECTION 6.11 CONSENTS. From the date of this Agreement through the
Tender Closing, the Company will exert commercially reasonable efforts to notify
or secure the consent of the following entities as required pursuant to their
respective contracts with the Company as set forth on Schedule 4.4: BT Squared,
Choice Courier Systems, Astea International, Ameritech, Cisco Systems, Micom,
AT&T, First Union National Bank and TrizecHahn.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER.
The respective obligations of each party hereto to effect the Merger is
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) if required by Georgia Law, this Agreement and the
Merger shall have been adopted by the affirmative vote of the stockholders of
the Company by the requisite vote in accordance with Georgia Law;
(b) there shall not be in effect any order, decree or
ruling or other action restraining, enjoining or otherwise prohibiting the
Merger, which order, decree, ruling or action shall have been issued or taken by
any court of competent jurisdiction or other governmental body located or having
jurisdiction within the United States or any country or economic region in which
the Company or any of its Subsidiaries or Parent or any of its Subsidiaries,
directly or indirectly, has material assets or operations;
(c) any waiting period applicable to the Merger under the
HSR Act shall have terminated or expired; and
(d) Acquisition shall have purchased Shares representing
not less than a majority of the outstanding Shares (assuming the full exercise
of all outstanding 1994 Options) pursuant to the Offer.
SECTION 7.2 CONDITIONS TO THE OBLIGATION OF ULTIMATE PARENT,
PARENT AND ACQUISITION TO EFFECT THE MERGER. The obligations of Ultimate Parent,
Parent and Acquisition to effect the Merger are subject to the satisfaction or
waiver by Parent at or prior to the Effective Time of the following further
conditions:
(a) Unless Acquisition shall have purchased Shares
pursuant to the Offer, the Company shall have performed in all material respects
its covenants, agreements and obligations under this Agreement up to the
Closing;
(b) Unless Acquisition shall have purchased Shares
pursuant to the Offer, the representations and warranties of the Company
contained in this Agreement which are qualified as to materiality shall be true
and correct and which are not so qualified shall be true and correct in all
material respects, in each case, as of the date when made and at and as of the
Closing as though newly made at and as of that time; and
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(c) Unless Acquisition shall have purchased Shares
pursuant to the Offer, the Company shall have delivered to Acquisition a
certificate dated as of the Closing and signed by each of the Chief Executive
Officer and the Chief Financial Officer of the Company certifying as to (i) the
accuracy, as of the date when made and at and as of the Closing as though newly
made at and as of that time, of the representations and warranties of the
Company contained in this Agreement which are qualified as to materiality, (ii)
the accuracy, as of the date when made and at and as of the Closing as though
newly made at and as of that time, in all material respects of the
representations and warranties of the Company contained in this Agreement which
are not so qualified, and (iii) the performance of the obligations required by
the Company to be performed under this Agreement as of the Closing.
SECTION 7.3 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO EFFECT
THE MERGER. The obligations of the Company to effect the Merger are subject to
the satisfaction or waiver by the Company at or prior to the Effective Time of
the following further conditions:
(a) Ultimate Parent, Parent and Acquisition shall have
performed in all material respects their respective covenants, agreements and
obligations under this Agreement up to the Closing;
(b) Unless Acquisition shall have purchased Shares
pursuant to the Offer, the representations and warranties of Ultimate Parent,
Parent and Acquisition contained in this Agreement which are qualified as to
materiality shall be true and correct and which are not so qualified shall be
true and correct in all material respects, in each case, as of the date when
made and at and as of the Closing as though newly made at and as of that time;
and
(c) Unless Acquisition shall have purchased Shares
pursuant to the Offer, Parent shall have delivered to the Company a certificate
dated as of the Closing and signed by an authorized officer of Parent certifying
as to (i) the accuracy, as of the date when made and at and as of the Closing as
though newly made at and as of that time, of the representations and warranties
of Ultimate Parent, Parent and Acquisition contained in this Agreement which are
qualified as to materiality, (ii) the accuracy, as of the date when made and at
and as of the Closing as though newly made at and as of that time, in all
material respects of the representations and warranties of Ultimate Parent,
Parent and Acquisition contained in this Agreement which are not so qualified,
and (iii) the performance of the obligations required by Ultimate Parent, Parent
and Acquisition to be performed under this Agreement as of the Closing.
ARTICLE VIII
TERMINATION; EXPENSES; AMENDMENT; WAIVER
SECTION 8.1 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time, notwithstanding approval thereof by the
stockholders of the Company:
(a) by mutual written consent of Parent, Acquisition and
the Company;
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(b) by Parent or the Company, without liability, if any
court of competent jurisdiction or other governmental body located or having
jurisdiction within the United States or any country or economic region in which
the Company or any of its Subsidiaries or Parent or any of its subsidiaries,
directly or indirectly, has material assets or operations, shall have issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the Merger and such order, decree, ruling or other action
shall have become final and nonappealable;
(c) by the Company: (i) if Acquisition shall have failed
to accept for purchase and pay for Shares pursuant to the Offer on or prior to
the date that is 60 days after the date of this Agreement (the "60TH DAY")
unless a cause of such failure to accept for purchase and pay for Shares on or
prior to the 60th Day is a failure of either (A) the waiting period under the
HSR Act to have expired prior to the 60th Day, or (B) a third party having made
an Acquisition Proposal on or prior to the 60th Day (either of (A) or (B) an
"EXTENDING CAUSE"); or (ii) in the event of an Extending Cause, by the Company
if Acquisition shall have failed to accept for purchase and pay for Shares
pursuant to the Offer on or prior to the date that is 120 days after the date of
this Agreement (the "120TH DAY"). The 60th Day or the 120th Day, whichever is
applicable, is referred to herein as the "OUTSIDE DATE". The foregoing
notwithstanding, the right to terminate this Agreement under this Section 8.1(c)
shall not be available to the Company if the Company's failure to fulfill any
obligation under this Agreement has been the cause of or resulted in the failure
by Acquisition to accept for purchase and pay for Shares on or prior to the
Outside Date;
(d) by the Company if (i) there shall have been a breach
of any representation or warranty of Ultimate Parent, Parent or Acquisition
contained herein which would reasonably be expected to materially and adversely
affect the expected benefits for the Company of the transactions contemplated
hereunder or prevent the consummation of the Offer or the Merger, or (ii) there
shall have been a breach of any covenant or agreement of Parent or Acquisition
contained herein which would reasonably be expected to materially and adversely
affect the expected benefits for the Company of the transactions contemplated
hereunder or prevent the consummation of the Offer or the Merger and which shall
not have been cured prior to the earlier of (A) five business days following
notice of such breach and (B) two business days prior to the date on which the
Offer expires;
(e) by Parent if Acquisition shall not have accepted
Shares pursuant to the Offer on or prior to the Outside Date due to a failure of
the Minimum Condition to have been satisfied or any condition set forth on Annex
A to have been materially satisfied or waived by Acquisition as of any scheduled
expiration of the Offer; provided, that the right to terminate this Agreement
under this Section 8.1(e) shall not be available to Parent if Parent's or
Acquisition's failure to fulfill any obligation under this Agreement has been
the cause of or resulted in such failure to accept Shares pursuant to the Offer
on or prior to the Outside Date;
(f) by Parent prior to the purchase by Acquisition of
Shares pursuant to the Offer, if (i) there shall have been a breach of any
representation or warranty of the Company contained herein which would
reasonably be expected to materially and adversely affect the expected benefits
for Parent of the transactions contemplated hereunder or prevent the
consummation of the Offer or the Merger, or (ii) there shall have been a breach
of any covenant or agreement of the Company contained herein which would
reasonably be expected to materially
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and adversely affect the expected benefits for Parent of the transactions
contemplated hereunder or prevent the consummation of the Offer or the Merger
and which shall not have been cured prior to the earlier of (A) five business
days following notice of such breach and (B) two business days prior to the date
on which the Offer expires;
(g) prior to the purchase of Shares by Acquisition
pursuant to the Offer and no earlier than two business days after the receipt by
Parent of a Notice of Superior Proposal, by the Company if (i) the Superior
Proposal described in such Notice of Superior Proposal continues to be a
Superior Proposal in light of any transaction proposed by Parent prior to the
expiration of the fifth business day after the receipt by Parent of such Notice
of Superior Proposal, (ii) the Company's directors determine in good faith,
based upon the written advice of its independent financial advisors, that such
Acquisition Proposal would, if consummated, result in a transaction more
favorable to the Company's stockholders from a financial point of view than the
transactions contemplated by this Agreement, and (iii) the Company's directors
determine in good faith, based upon the advice of legal counsel, that such
action is required for the discharge of their fiduciary duties to stockholders
under applicable law; or
(h) by Parent if the Board shall have modified in a
manner materially adverse to Parent or Acquisition or withdrawn its approval of
the Offer, this Agreement or the Merger or its recommendation that the Company's
stockholders accept the Offer or the Company shall have entered into an
agreement providing for or implementing an Acquisition Proposal or the Board
shall have resolved to do any of the foregoing.
SECTION 8.2 EFFECT OF TERMINATION.
(a) If (i) a third party makes an Acquisition Proposal,
(ii) at any time thereafter this Agreement is terminated pursuant to either
Section 8.1(c) or Section 8.1(e), and (iii) within twelve months after the date
this Agreement is so terminated, the Company consummates or enters into an
agreement, or shareholders of the Company consummate, a transaction or series of
related transactions (whether by way of merger, recapitalization, share
exchange, share purchase, tender offer, exchange offer, asset purchase or
otherwise) resulting in any person or group (as defined in Section 13(d)(3) of
the Exchange Act) directly or indirectly becoming the beneficial owner (within
the meaning of Section 13(d)(3) of the Exchange Act) or at least a majority of
the then outstanding voting capital stock or substantially all of the assets of
the Company, then the Company shall pay Parent a non-refundable fee of
$2,200,000, which amount shall be payable by wire transfer of same day funds
within two (2) business days after the consummation of such transaction or
series of related transactions.
(b) If this Agreement is terminated pursuant to Section
8.1(f), Section 8.1(g) or Section 8.1(h), the Company shall (i) pay Parent a
non-refundable fee of $2,200,000, which amount shall be payable by wire transfer
of same day funds within two (2) business days after the date this Agreement is
so terminated.
(c) If this Agreement is terminated pursuant to Section
8.1(c)(i) in the absence of a Extending Cause or pursuant to Section 8.1(d),
Ultimate Parent, Parent and Acquisition shall, collectively, pay the Company a
nonrefundable fee of $2,200,000, which amount shall be payable
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<PAGE> 43
by wire transfer of same day funds within two (2) business days after the date
this Agreement is so terminated.
(d) If a party becomes entitled to receive the amounts
described in Section 8.2(a), Section 8.2(b) or Section 8.2(c) and such amounts
are paid in full when due, then such amounts shall constitute liquidated damages
and shall be the paid party's (ies') exclusive remedy for any violation or
breach of any term or provision of this Agreement. The parties agree that actual
damages are not possible to determine and that such amounts are reasonable
pre-estimates of such damages.
(e) In the event of the termination of this Agreement
pursuant to Section 8.1, this Agreement, other than the provisions of Section
8.2, Section 8.3 and Section 9.6, shall forthwith become void and have no
effect.
SECTION 8.3 FEES AND EXPENSES.
Except as otherwise provided in Section 8.2 above, each party shall
bear its own expenses and costs in connection with this Agreement and the
transactions contemplated hereby.
SECTION 8.4 AMENDMENT.
Subject to Section 1.3(c), this Agreement may be amended by action
taken by the Company, Ultimate Parent, Parent and Acquisition at any time before
or after adoption of the Merger by the stockholders of the Company (if required
by applicable law) but, after any such approval, no amendment shall be made
which decreases the Merger Consideration or changes the form thereof, imposes
additional conditions to the Merger or which adversely affects the rights of the
Company's stockholders hereunder without the approval of such stockholders. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
SECTION 8.5 EXTENSION; WAIVER.
Subject to Section 1.3(c), at any time prior to the Effective Time, the
Company, on the one hand, and Ultimate Parent, Parent and Acquisition, on the
other hand, may (i) extend the time for the performance of any of the
obligations or other acts of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto, or (iii) waive
compliance by the other party with any of the agreements or conditions contained
herein. Any agreement on the part of any party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party hereto to assert any of its
rights hereunder shall not constitute a waiver of such rights.
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<PAGE> 44
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties made herein shall not survive beyond
the Effective Time. The covenants and agreements herein shall survive in
accordance with their respective terms.
SECTION 9.2 ENTIRE AGREEMENT; ASSIGNMENT.
This Agreement, the Confidentiality Agreement and the Shareholder
Agreements and any other agreements contemplated hereby (i) constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all other prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and (ii)
shall not be assigned by operation of law or otherwise; provided that
Acquisition may assign its rights and obligations in whole or in part to Parent
or any direct or indirect wholly-owned subsidiary of Parent, but no such
assignment shall relieve Acquisition of its obligations hereunder if such
assignee does not perform such obligations.
SECTION 9.3 NOTICES.
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by facsimile or by
registered or certified mail postage prepaid, return receipt requested), to the
other party as follows:
if to Ultimate Parent, Parent or Acquisition:
Equant Acquisition Corp.
45 Orville Drive
Bohemia, NY 11716
Fax: 516-589-4235
Attention: Richard Blaustein and Fran Schwartz
with copies to:
Brown Raysman Millstein Felder & Steiner L.P.
120 West 45th Street
New York, NY 10036
Fax: (212) 840-2429
Attention: Sarah Hewitt, Esq.
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<PAGE> 45
if to the Company:
Techforce Corporation
5741 Rio Vista Drive
Clearwater, FL 33760-3117
Fax: 727-533-3810
Attention: Jerrel W. Kee
with a copy to:
Bertil D. Nordin
14 Ball Creek Way
Dunwoody, GA 30350
and
Hunton & Williams
600 Peachtree Street, N.E.
NationsBank Plaza, Suite 4100
Atlanta, Georgia 30308
Fax: 404-888-4190
Attention: W. Tinley Anderson, III, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
SECTION 9.4 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the principles of conflict
of laws thereof.
SECTION 9.5 PARTIES IN INTEREST.
Except for Section 6.5, which shall inure to the benefit of the persons
identified therein, this Agreement shall be binding upon and inure solely to the
benefit of each party hereto and its successors and permitted assigns, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
SECTION 9.6 SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or in equity, including
specific performance to effect and close the Merger if each condition precedent
to the Merger is satisfied in all material respects. The parties agree that the
stockholders of the Company shall be third party beneficiaries to this Section
9.6.
-42-
<PAGE> 46
SECTION 9.7 SEVERABILITY.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity
and enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid and unenforceable provision
and (b) the remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
SECTION 9.8 DESCRIPTIVE HEADINGS.
The descriptive headings herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
SECTION 9.9 CERTAIN DEFINITIONS.
For purposes of this Agreement, the term:
(a) "AFFILIATE" of a person means a person that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, the first mentioned person;
(b) "ASSOCIATE" of a person means a corporation or
organization of which such person is an officer, director or partner or is,
directly or indirectly, the beneficial owner of 10 percent or more of any class
of equity securities or any person who is a director or officer of such person
or any of its affiliates;
(c) "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or federal holiday;
(d) "CONTROL" (including the terms "controlled by" and
"under common control with") means the possession, directly or indirectly, or as
trustee or executor, of the power to direct or cause the direction of the
management policies of a person, whether through the ownership of stock, as
trustee or executor, by contract or credit arrangement or otherwise;
(e) "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean
the generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession in the
United States;
-43-
<PAGE> 47
(f) "KNOWLEDGE" in the case of the Company means the
knowledge after reasonable inquiry of Christian H. Butson, Jerrel W. Kee, John
A. Koehler, Tim Anderson or James J. Macchiarola;
(g) "PERSON" means an individual, corporation,
partnership, limited liability company, trust, unincorporated organization, or
other entity or group (as defined in the Exchange Act); and
(h) "SUBSIDIARY" or "SUBSIDIARIES" of any person means
any corporation, partnership, limited liability company, joint venture or other
legal entity of which such person (either alone or through or together with any
other subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests the holder of which is generally entitled to vote for the
election of the board of directors or other governing body of such corporation,
partnership, limited liability company, joint venture or other legal entity.
SECTION 9.10 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
SECTION 9.11 JURISDICTION; AGENT
The Company agrees to submit to the jurisdiction of the U.S. federal
courts sitting in the State of New York, Borough of Manhattan, for purposes of
any dispute hereunder, and appoints John Koehler as its agent for service of
process in connection therewith.
-44-
<PAGE> 48
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
TECHFORCE CORPORATION
By: /s/ John A. Koehler
---------------------------------
Name: John A. Koehler
-------------------------------
Title: Chief Executive Officer
------------------------------
EQUANT N.V.
By: /s/ Jean-Yves Charlier
---------------------------------
Name: Jean-Yves Charlier
-------------------------------
Title:
------------------------------
EQUANT HOLDINGS U.S., INC.
By: /s/ Jean-Yves Charlier
---------------------------------
Name: Jean-Yves Charlier
-------------------------------
Title:
------------------------------
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
---------------------------------
Name: Jean-Yves Charlier
-------------------------------
Title: President
------------------------------
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<PAGE> 49
ANNEX A
OFFER CONDITIONS
The capitalized terms used in this Annex A have the meanings set forth
in the attached Agreement, except that the term "MERGER AGREEMENT" shall be
deemed to refer to the attached Agreement.
Notwithstanding any other provision of the Offer, Acquisition shall not
be required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including, without limitation, Rule 14e-1(c)
under the Exchange Act (relating to Acquisition's obligation to pay for or
return Shares promptly after termination or withdrawal of the Offer), pay for
any Shares tendered pursuant to the Offer, and may postpone the acceptance for
payment or, subject to the restriction referred to above, payment for any Shares
tendered pursuant to the Offer, and may terminate or amend the Offer and not
accept for payment any Shares, 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, or (iii) any material applicable approval, permit,
authorization, consent or waiting period shall not have been obtained or
satisfied on terms satisfactory to Parent in its reasonable discretion;
provided, that prior to the Outside Date, Acquisition shall not terminate the
Offer by reason of the nonsatisfaction of any of the conditions set forth in
clauses (ii) or (iii) above (it being understood that this proviso shall not
prohibit Acquisition from terminating the Offer or failing to extend the Offer
by reason of the nonsatisfaction of any other condition of the Offer), or (iv)
at any time prior to the acceptance for payment of Shares, any of the following
conditions occurs or has occurred or Acquisition makes a good faith
determination that any of the following conditions has occurred:
(a) there shall have been any action or proceeding
brought by any governmental authority before any court, or any order or
preliminary or permanent injunction entered in any action or proceeding before
any court or governmental, administrative or regulatory authority or agency,
located or having jurisdiction within the United States or any other country or
economic region in which the Company or any of its Subsidiaries or Parent or any
of its subsidiaries, directly or indirectly, has material assets or operations,
or any other action taken, proposed or threatened, or statute, rule, regulation,
legislation, interpretation, judgment or order proposed, sought, enacted,
entered, enforced, promulgated, amended, issued or deemed applicable to
Acquisition, the Company or any Subsidiary or affiliate of Acquisition or the
Company or the Offer, the Merger or the transactions contemplated by the Merger
Agreement, by any legislative body, court, government or governmental,
administrative or regulatory authority or agency located or having jurisdiction
within the United States or any other country or economic region in which the
Company or any of its Subsidiaries or Parent or any of its subsidiaries,
directly or indirectly, has material assets or operations, which could
reasonably be expected to have a Material Adverse Effect or to have the effect
of: (i) making illegal, or otherwise directly or indirectly restraining or
prohibiting or making materially more costly, the making of the Offer, the
acceptance for payment of, payment for, or ownership, directly or indirectly, of
some of or all the Shares by Parent or Acquisition, the consummation of any of
the transactions contemplated by the Merger Agreement or materially delaying the
Merger; (ii) prohibiting or materially limiting the ownership or operation
A-1
<PAGE> 50
by the Company or any of its Subsidiaries, or by Parent or any of its
subsidiaries, of all or any material portion of the business or assets of the
Company or any of its Subsidiaries or Parent or any of its subsidiaries, or
compelling Acquisition, Parent or any of Parent's subsidiaries to dispose of or
hold separate all or any material portion of the business or assets of the
Company or any of its Subsidiaries or Parent or any of its subsidiaries, as a
result of the transactions contemplated by the Merger Agreement; (iii) imposing
or confirming limitations on the ability of Acquisition, Parent or any of
Parent's subsidiaries effectively to acquire or hold or to exercise full rights
of ownership of Shares, including, without limitation, the right to vote any
Shares on all matters properly presented to the stockholders of the Company,
including, without limitation, the adoption and approval of the Merger Agreement
and the Merger, or the right to vote any shares of capital stock of any
subsidiary of the Company; or (iv) requiring divestiture by Parent or
Acquisition, directly or indirectly, of any Shares; or
(b) there shall have occurred (i) any general suspension
of, or limitation on prices for, trading in securities on the NYSE or the Nasdaq
Stock Market for a period in excess of 24 hours (excluding suspensions or
limitations resulting solely from physical damage or interference with such
exchange not related to market conditions), (ii) a declaration of a banking
moratorium or any suspension of payments in respect to banks in the United
States, (iii) a commencement of a war or armed hostilities or other similar
national or international crisis directly or indirectly involving the United
States having, or which could reasonably be expected to have, a substantial
continuing general effect on business and financial conditions in the United
States except for those involving the countries of Iraq and Yugoslavia
(including Kosovo), or (iv) in the case of any of the foregoing existing on the
date hereof, a material acceleration or worsening thereof; or
(c) the Company shall have breached or failed to perform
in any material respect any of its covenants or agreements under the Merger
Agreement; or
(d) any of the representations and warranties of the
Company set forth in the Merger Agreement that are qualified as to materiality
shall not be true and correct in a manner adverse to Acquisition or Parent, or
any of the representations and warranties of the Company set forth in the Merger
Agreement that are not so qualified shall not be true and correct in any
material respect in a manner adverse to Acquisition, Ultimate Parent or Parent,
in each case as if such representation and warranties were made at the time of
such determination (or, in the case of any representation and warranty made as
of a specified date, as of such date); or
(e) the Merger Agreement shall have been terminated in
accordance with its terms or the Offer shall have been terminated with the
consent of the Company; or
(f) the Board shall have withdrawn or modified in a
manner materially adverse to Acquisition or withdrawn its approval or
recommendation of the Offer, the Merger Agreement, or the Merger or shall have
recommended, or the Company shall have entered into an agreement providing for
or implementing an Acquisition Proposal, or the Board shall have resolved to do
any of the foregoing.
A-2
<PAGE> 51
In addition to the foregoing conditions, Acquisition shall
have received from the Company an officers certificate signed by each of the
Chief Executive Officer and the Chief Financial Officer of the Company
certifying as to (i) the accuracy, as of the date when made and at and as of the
Closing as though newly made at and as of that time, of the representations and
warranties of the Company contained in this Agreement which are qualified as to
materiality, (ii) the accuracy, as of the date when made and at and as of the
Closing as though newly made at and as of that time, in all material respects of
the representations and warranties of the Company contained in this Agreement
which are not so qualified, and (iii) the performance of the obligations
required by the Company to be performed under this Agreement as of the Closing.
The foregoing conditions (other than the Minimum Condition)
are for the sole benefit of Acquisition and the foregoing conditions (including
the Minimum Condition) may be asserted by Acquisition regardless of the
circumstances giving rise to any such condition or may be waived by Acquisition
in whole or in part at any time or from time to time in its sole discretion,
provided that the Minimum Condition may only be waived or modified with the
Company's prior written approval. The failure by Acquisition at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each such right shall be deemed an ongoing right that may be
asserted at any time or from time to time.
A-3
[Schedules, Annexes and Exhibits are intentionally omitted
but will be provided upon request.]
<PAGE> 1
EXHIBIT (c)(2)
June 18, 1998
Equant Integration Services
45 Orville Drive
Bohemia, NY 11716
Dear Mr. Blaustein:
We understand from BT Alex. Brown ("BT Alex. Brown"), our financial adviser,
that you may be interested in pursuing a transaction with TechForce Corporation
(the "Company") on a mutually agreeable basis. In connection with your possible
interest in a transaction with the Company, we propose to furnish you with
certain information related to the Company (herein referred to as the
"Confidential Information"). Confidential Information includes not only written
information but also information transferred orally, visually, electronically or
by any other means. The fact that such information has been delivered to you,
that such a transaction is under consideration by the Company, that discussions
or negotiations have occurred or are occurring regarding a possible transaction
involving the Company and you, and the status of any such discussions or
negotiations, are considered Confidential Information for purposes of this
Agreement. In consideration of our furnishing you with the Confidential
Information, and as a condition of such disclosure, you agree as follows:
1. The Confidential Information will be used by you solely for the
purpose of your evaluation of the desirability of your entering into
a transaction with the Company, and for no other purpose.
2. For a period of 3 years from the date of this agreement, you shall
keep all Confidential Information secret and confidential and shall
not, without the prior written consent of the Company, disclose it
to anyone except to a limited group of your own employees,
directors, officers, agents and outside advisors ("Representatives")
who are actually engaged in, and need to know such Confidential
Information to perform, the evaluation referred to above, each of
whom must be advised of the confidential nature of the Confidential
Information and of the terms of this Agreement and must agree to
abide by such terms. You shall be responsible for any breech of this
Agreement by any of your Representatives.
3. Upon any termination of your evaluation of pursuing a transaction
with the Company or upon notice from the Company to you (i) you will
return to the Company the Confidential Information which is in
tangible form, including any copies which you may have made, and you
will destroy all abstracts, summaries thereof or references thereto
in your documents, and certify to us that you have done so, and (ii)
neither you nor your Representatives will use any of the
Confidential Information with respect to, or in furtherance of, your
business, any
<PAGE> 2
Equant Integration Services
June 18, 1998
Page 2
of their respective businesses, or in the business of anyone else, whether
or not in competition with the Company, or for any other purpose
whatsoever.
4. Confidential Information includes all analysis, compilations, forecasts,
studies or other documents prepared by you or your Representatives in
connection with your evaluation of pursuing a transaction with the Company.
Confidential information does not include any information which was
publicly available prior to your receipt of such information or thereafter
became publicly available (other than as a result of disclosure by you or
any of your Representatives). Information shall be deemed "publicly
available" if it becomes a matter of public knowledge or is contained in
materials available to the public or is obtained from any source other than
the Company (or its directors, officers, employees, agents or outside
advisors, including, without limitation, BT Alex. Brown), provided that
such source is not to your knowledge prohibited from disclosing such
information by a legal, contractual or fiduciary obligation to the Company
and did not obtain the information from an entity or person prohibited from
disclosing such information by a legal, contractual or fiduciary obligation
to the Company.
5. You understand that we have endeavored to include in the Confidential
Information those materials which we believe to be reliable and relevant
for the purpose of your evaluation, but you acknowledge that neither the
Company nor BT Alex. Brown nor any of their respective directors, officers,
employees, agents or outside advisors makes any representation or warranty
as to the accuracy or completeness of the Confidential Information and you
agree that such persons shall have no liability to you or any of your
Representatives resulting from any use of the Confidential Information. You
understand that the Confidential Information is not being furnished for use
in an offer or sale of securities of the Company and is not designed to
satisfy the requirements of federal or state securities laws in connection
with any offer or sale of such securities to you.
6. In the event that you or any of your Representatives are compelled by a
court or administrative body of competent jurisdiction to disclose any
Confidential Information, such compelled disclosure shall not in any manner
be considered a breach or default by you of this Agreement or any provision
hereof. In the event that you or any of your Representatives is requested
in any proceeding to disclose any of the Confidential Information that
could reasonably be expected to materially adversely effect the Company,
you will provide the Company with prompt prior notice so that the Company
may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that the
Company is unable to obtain such protective order or other appropriate
remedy, you will furnish only that portion of the Confidential Information
which you are advised by a written opinion of counsel is legally required,
you will give the Company written notice of the information to be disclosed
as far in advance as practicable, and you will exercise your commercially
reasonable efforts to obtain a protective order or other reliable
<PAGE> 3
Equant Integration Services
June 18, 1998
Page 3
assurance that confidential treatment will be accorded the
Confidential information so disclosed.
7. Without the prior written consent of the Company, you will not,
and will not encourage or assist others to, for a period of 2
years (i) propose or disclose an intent to propose any form of
business combination, acquisition, restructuring,
recapitalization or other similar transaction relating to the
Company, (ii) acquire or offer, seek, propose or agree to
acquire, directly or indirectly, by purchase or otherwise, any
voting securities or assets or direct or indirect rights or
options to acquire any voting securities or assets of the
Company, (iii) make, or in any way participate, directly or
indirectly, in any "solicitation" of any "proxy" to vote (as such
terms are used in the proxy rules of the Securities and Exchange
Commission) or seek to advise or influence any person or entity
with respect to the voting of any voting securities of the
Company, (iv) form, join or in any way participate, directly or
indirectly, in a "group" within the meaning of Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended, with respect
to any voting securities of the Company, (v) enter into any
discussions, negotiations, arrangements or understandings with
any third party with respect to any of the foregoing, (vi)
disclose any intention, plan or arrangement inconsistent with the
foregoing, (vii) otherwise act, alone or in concert with others,
directly or indirectly, to seek control of the management, board
of directors, or policies of the Company, (viii) request the
Company, directly or indirectly, to amend or waive any provisions
of this paragraph.
8. You agree that for a period of three years, you will not,
directly or indirectly, solicit for employment or hire any
employee of the Company or any of its subsidiaries with whom you
have had contact in connection with your evaluation of pursuing a
transaction with the Company or who became known to you in
connection with your evaluation of a possible transaction
involving the Company; provided that the foregoing provision will
not prevent you from employing any such person who contacts you
on his or her own initiative without any direct or indirect
solicitation by, or encouragement (not including a general
solicitation of employment not specifically directed towards
employees of the Company) from, you.
9. Without impairing any other provision hereof, you will promptly
advise the Company of any prohibited disclosure or other breach
of this Agreement.
10. You understand and agree that money damages would not be a
sufficient remedy for any breach of this Agreement by you or your
Representatives, and that the Company, its agents and
representatives shall be entitled to specific performance and/or
injunctive relief as a remedy for any such breach. Such remedy
shall not be deemed to be the exclusive remedy for any such
breach of this Agreement but shall be in addition to all other
remedies available at law or in equity.
<PAGE> 4
Equant Integration Services
June 18, 1998
Page 4
11. Nothing in this Agreement shall impose any obligation upon you or us
to consummate a transaction or to enter into any discussion or
negotiations with respect thereto.
12. This Agreement shall be governed by the laws of the State of New York.
If you are in agreement with the foregoing, please sign and return the enclosed
copy of this letter which will constitute our agreement with respect to the
subject matter of this letter as of the date first above written.
Very truly yours,
TECHFORCE CORPORATION
/s/ Jerrel W. Kee
---------------------------------
Name
Chief Financial Officer
---------------------------------
Title
AGREED AND ACCEPTED TO:
EQUANT INTEGRATION SERVICES, INC.
/s/ Richard Blaustein
- --------------------------------------
Richard Blaustein
CEO, North America
- --------------------------------------
<PAGE> 5
TECHFORCE CORPORATION
5741 Rio Vista Drive
Clearwater, Florida 33760-3117
May 18, 1999
Equant Integration Services, Inc.
45 Orville Drive
Bohemia, New York 11716
Re: Modification of the June 18, 1998 Confidentiality Letter Agreement
between TechForce Corporation and Equant Integration Services, Inc.
(the "Confidentiality Agreement")
Ladies and Gentlemen:
In connection with our ongoing discussions, negotiations and efforts to
establish the terms and conditions of a potential transaction between TechForce
Corporation ("TechForce") and Equant Integration Services, Inc. ("Equant"), it
is necessary to extend the terms of the Confidentiality Agreement, a copy of
which is attached hereto as Exhibit A. By countersigning and returning this
letter to us, Equant agrees that the Confidentiality Agreement shall be
modified as follows effective as of the date of this letter:
A. Section 2 of the Confidentiality Agreement is amended to replace the
phrase (found in the first line of that section) "For a period of 3 years from
the date of this agreement" with the phrase "For a period commencing on June
18, 1998 and continuing for 3 years from May 18, 1999".
B. Section 7 of the Confidentiality Agreement is amended by replacing the
phrase (found in the second line of that section) "for a period of 2 years"
with the phrase "for a period commencing on June 18, 1998 and continuing for 2
years from May 18, 1999",
C. Section 8 of the Confidentiality Agreement is amended by replacing the
phrase (found in the first line of that section) "for a period of three years"
with the phrase "for a period commencing on June 18, 1998 and continuing for
three years from May 18, 1999".
Except as amended by this letter, the Confidentiality Agreement shall
continue in full force and effect.
<PAGE> 6
Equant Integration Services, Inc.
May 18, 1999
Page 2
If you are in agreement with the foregoing, please sign and return a copy
of this letter to us, which will constitute our agreement with respect to the
subject matter of this letter as of the date hereof.
Very truly yours,
TECHFORCE CORPORATION
/s/ Jerrel W. Kee
-----------------------------
Jerrel W. Kee
Senior Vice President-Finance
AGREED AND ACCEPTED TO:
EQUANT INTEGRATION SERVICES, INC.
By: /s/ Richard H. Blaustein
-----------------------------
Name: Richard H. Blaustein
---------------------------
Title: CEO, North America
--------------------------
<PAGE> 1
Exhibit (c)(3)
EQUANT N.V.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
June 30, 1999
Mr. Richard D. Tadler
c/o TA Associates, Inc.
High Street Tower, Suite 2500
125 High Street
Boston, MA 02110
Dear Mr. Tadler:
This letter is to confirm our agreement regarding all of the 2,739
shares of common stock, par value $.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation (the "Company"), owned beneficially or of
record by you. In order to induce Equant Acquisition Corp., a subsidiary of
Equant Holdings U.S., Inc., which is a subsidiary of Equant N.V. (together,
"Buyer"), to enter into an Agreement and Plan of Merger, to be dated as of the
date hereof between the Company and Buyer (the "Merger Agreement"), you hereby
agree as follows:
Subject to the terms and conditions hereof, prior to the expiration
date of the tender offer (the "Expiration Date") to be commenced by Buyer or an
affiliate of Buyer pursuant to the Merger Agreement (the "Tender Offer"), you
will tender to Buyer or its affiliate, or cause to be tendered, all of the
Shares, provided, that this obligation is not effective if you receive a higher
offer for such Shares. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in any event prior to the expiration date of
the Tender Offer, re-tender such Shares to Buyer or its affiliate.
You hereby agree not to sell, transfer or encumber the Shares (except
in the Tender Offer or to Buyer) at any time prior to the date this letter
agreement is terminated in accordance with its terms.
You hereby represent and warrant as to the Shares that (i) you are the
sole owner of and have full right, power and authority to sell and vote the
Shares, or, if you are not the sole owner, you have full right, power and
authority to sell and to vote the Shares, and, in either event, this letter
agreement is a legal, valid and binding agreement, enforceable against you, in
accordance with its terms; (ii) neither the execution of this letter agreement
nor the consummation by you of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its affiliate shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power
and authority to enter into this letter agreement.
<PAGE> 2
Mr. Richard D. Tadler
June 30, 1999
Page 2
You hereby agree to vote all of the Shares, and any other common shares
(and any other voting securities issued or exchanged with respect to such shares
upon any reclassification, recapitalization, reorganization, stock split, stock
dividend or other change in the capital structure of the Company)of the Company
which you may own, or have the power to vote, (i) in the manner directed by
Buyer with respect to any matters directly related to the acquisition of the
Company by Buyer and (ii) against any other mergers, recapitalizations, business
combinations, sales of assets, liquidations or similar transactions involving
the Company, or any other matters which would be inconsistent with Buyer's
intended acquisition of the Company. In furtherance of your voting agreement in
this paragraph, you hereby revoke any and all previous proxies with respect to
any of the Shares and grant to Buyer and such individuals or corporations as
Buyer may designate an irrevocable proxy to vote all of the Shares owned by you
in accordance with this paragraph on any matters which may be presented to
shareholders of the Company with respect to any matters related to the
acquisition of the Company by Buyer or any other mergers, recapitalizations,
business combinations, sales of assets, liquidations or similar transactions
involving the Company, and any other matters which would be inconsistent with
Buyer's proposed acquisition of the Company. You hereby acknowledge that such
proxy is coupled with an interest and irrevocable. In addition, you hereby agree
to execute such additional documents as Buyer may reasonably request to
effectuate its voting rights under this paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Merger Agreement and any documents or instruments contemplated thereby
(i) constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and (ii) supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any other
person or entity who is not a party hereto any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, (ii) by either party after the Expiration
Date, or (iii) by either party after the termination of the Merger Agreement.
Notwithstanding the foregoing, such right of termination shall not be available
to any party whose breach of any obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be
consummated. No such termination shall relieve any party from liability for any
breach of this letter agreement.
You hereby acknowledge and agree that Buyer may be irreparably damaged
and would not have an adequate remedy at law for money damages in the event that
any of the covenants contained in this letter agreement were not performed in
accordance with its terms or otherwise were materially breached. You therefore
agree that Buyer may be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific enforcement
of such covenants in addition to any other remedy to which it may be entitled,
at law or in equity. This Agreement shall be governed by and construed in
accordance with the
<PAGE> 3
Mr. Richard D. Tadler
June 30, 1999
Page 3
internal laws (and not the law of conflicts) of the State of New York. Each of
the parties shall pay its own expenses in connection with the execution and
performance of this letter agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
You agree that in connection with any legal action taken against you by
Buyer as a result of any action or inaction by you arising hereunder, service of
process may be made upon you at the address set forth below your signature by a
duly authorized agent for serving process in the jurisdiction in which such
address is located.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
--------------------------------
Name: Jean-Yves Charlier
-----------------------------
Title:
----------------------------
Acknowledged and agreed as of this 30th day of June, 1999:
/s/ Richard D. Tadler
---------------------------
RICHARD D. TADLER
Service of Process Address:
---------------------------
---------------------------
---------------------------
---------------------------
<PAGE> 4
EQUANT N.V.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
June 30, 1999
Mrs. Sandra Koehler
TechForce Corporation
5741 Rio Vista Drive
Clearwater, FL 33760
Dear Mrs. Koehler:
This letter is to confirm our agreement regarding all of the 97,000
shares of common stock, par value $.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation (the "Company"), owned beneficially or of
record by you. In order to induce Equant Acquisition Corp., a subsidiary of
Equant Holdings U.S., Inc., which is a subsidiary of Equant N.V. (together,
"Buyer"), to enter into an Agreement and Plan of Merger, to be dated as of the
date hereof between the Company and Buyer (the "Merger Agreement"), you hereby
agree as follows:
Subject to the terms and conditions hereof, prior to the expiration
date of the tender offer (the "Expiration Date") to be commenced by Buyer or an
affiliate of Buyer pursuant to the Merger Agreement (the "Tender Offer"), you
will tender to Buyer or its affiliate, or cause to be tendered, all of the
Shares , provided, that this obligation is not effective if you receive a higher
offer for such Shares. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in any event prior to the expiration date of
the Tender Offer, re-tender such Shares to Buyer or its affiliate.
You hereby agree not to sell, transfer or encumber the Shares (except
in the Tender Offer or to Buyer) at any time prior to the date this letter
agreement is terminated in accordance with its terms.
You hereby represent and warrant as to the Shares that (i) you are the
sole owner of and have full right, power and authority to sell and vote the
Shares, or, if you are not the sole owner, you have full right, power and
authority to sell and to vote the Shares, and, in either event, this letter
agreement is a legal, valid and binding agreement, enforceable against you, in
accordance with its terms; (ii) neither the execution of this letter agreement
nor the consummation by you of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its affiliate shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power
and authority to enter into this letter agreement.
<PAGE> 5
Mrs. Sandra Koehler
June 30, 1999
Page 2
You hereby agree to vote all of the Shares, and any other common shares
(and any other voting securities issued or exchanged with respect to such shares
upon any reclassification, recapitalization, reorganization, stock split, stock
dividend or other change in the capital structure of the Company)of the Company
which you may own, or have the power to vote, (i) in the manner directed by
Buyer with respect to any matters directly related to the acquisition of the
Company by Buyer and (ii) against any other mergers, recapitalizations, business
combinations, sales of assets, liquidations or similar transactions involving
the Company, or any other matters which would be inconsistent with Buyer's
intended acquisition of the Company. In furtherance of your voting agreement in
this paragraph, you hereby revoke any and all previous proxies with respect to
any of the Shares and grant to Buyer and such individuals or corporations as
Buyer may designate an irrevocable proxy to vote all of the Shares owned by you
in accordance with this paragraph on any matters which may be presented to
shareholders of the Company with respect to any matters related to the
acquisition of the Company by Buyer or any other mergers, recapitalizations,
business combinations, sales of assets, liquidations or similar transactions
involving the Company, and any other matters which would be inconsistent with
Buyer's proposed acquisition of the Company. You hereby acknowledge that such
proxy is coupled with an interest and irrevocable. In addition, you hereby agree
to execute such additional documents as Buyer may reasonably request to
effectuate its voting rights under this paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Merger Agreement and any documents or instruments contemplated thereby
(i) constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and (ii) supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any other
person or entity who is not a party hereto any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, (ii) by either party after the Expiration
Date, or (iii) by either party after the termination of the Merger Agreement.
Notwithstanding the foregoing, such right of termination shall not be available
to any party whose breach of any obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be
consummated. No such termination shall relieve any party from liability for any
breach of this letter agreement.
You hereby acknowledge and agree that Buyer may be irreparably damaged
and would not have an adequate remedy at law for money damages in the event that
any of the covenants contained in this letter agreement were not performed in
accordance with its terms or otherwise were materially breached. You therefore
agree that Buyer may be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific enforcement
of such covenants in addition to any other remedy to which it may be entitled,
at law or in equity. This Agreement shall be governed by and construed in
accordance with the
<PAGE> 6
Mrs. Sandra Koehler
June 30, 1999
Page 3
internal laws (and not the law of conflicts) of the State of New York. Each of
the parties shall pay its own expenses in connection with the execution and
performance of this letter agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
You agree that in connection with any legal action taken against you by
Buyer as a result of any action or inaction by you arising hereunder, service of
process may be made upon you at the address set forth below your signature by a
duly authorized agent for serving process in the jurisdiction in which such
address is located.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
--------------------------------
Name: Jean-Yves Charlier
-----------------------------
Title:
----------------------------
Acknowledged and agreed as of this 30th day of June, 1999:
/s/ Sandra Koehler
-----------------------------
SANDRA KOEHLER
Service of Process Address:
TechForce Corporation
5740 Rio Vista Drive
Clearwater, Florida 34695
<PAGE> 7
EQUANT N.V.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
June 30, 1999
Mr. John A. Koehler
TechForce Corporation
5741 Rio Vista Drive
Clearwater, FL 33760
Dear John:
This letter is to confirm our agreement regarding all of the 592,470
shares of common stock, par value $.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation (the "Company"), owned beneficially or of
record by you. In order to induce Equant Acquisition Corp., a subsidiary of
Equant Holdings U.S., Inc., which is a subsidiary of Equant N.V. (together,
"Buyer"), to enter into an Agreement and Plan of Merger, to be dated as of the
date hereof between the Company and Buyer (the "Merger Agreement"), you hereby
agree as follows:
Subject to the terms and conditions hereof, prior to the expiration
date of the tender offer (the "Expiration Date") to be commenced by Buyer or an
affiliate of Buyer pursuant to the Merger Agreement (the "Tender Offer"), you
will tender to Buyer or its affiliate, or cause to be tendered, all of the
Shares, provided, that this obligation is not effective if you receive a higher
offer for such Shares. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in any event prior to the expiration date of
the Tender Offer, re-tender such Shares to Buyer or its affiliate.
You hereby agree not to sell, transfer or encumber the Shares (except
in the Tender Offer or to Buyer) at any time prior to the date this letter
agreement is terminated in accordance with its terms.
You hereby represent and warrant as to the Shares that (i) you are the
sole owner of and have full right, power and authority to sell and vote the
Shares, or, if you are not the sole owner, you have full right, power and
authority to sell and to vote the Shares, and, in either event, this letter
agreement is a legal, valid and binding agreement, enforceable against you, in
accordance with its terms; (ii) neither the execution of this letter agreement
nor the consummation by you of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its affiliate shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power
and authority to enter into this letter agreement.
<PAGE> 8
Mr. John A. Koehler
June 30, 1999
Page 2
You hereby agree to vote all of the Shares, and any other common shares
(and any other voting securities issued or exchanged with respect to such shares
upon any reclassification, recapitalization, reorganization, stock split, stock
dividend or other change in the capital structure of the Company)of the Company
which you may own, or have the power to vote, (i) in the manner directed by
Buyer with respect to any matters directly related to the acquisition of the
Company by Buyer and (ii) against any other mergers, recapitalizations, business
combinations, sales of assets, liquidations or similar transactions involving
the Company, or any other matters which would be inconsistent with Buyer's
intended acquisition of the Company. In furtherance of your voting agreement in
this paragraph, you hereby revoke any and all previous proxies with respect to
any of the Shares and grant to Buyer and such individuals or corporations as
Buyer may designate an irrevocable proxy to vote all of the Shares owned by you
in accordance with this paragraph on any matters which may be presented to
shareholders of the Company with respect to any matters related to the
acquisition of the Company by Buyer or any other mergers, recapitalizations,
business combinations, sales of assets, liquidations or similar transactions
involving the Company, and any other matters which would be inconsistent with
Buyer's proposed acquisition of the Company. You hereby acknowledge that such
proxy is coupled with an interest and irrevocable. In addition, you hereby agree
to execute such additional documents as Buyer may reasonably request to
effectuate its voting rights under this paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Merger Agreement and any documents or instruments contemplated thereby
(i) constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and (ii) supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any other
person or entity who is not a party hereto any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, (ii) by either party after the Expiration
Date, or (iii) by either party after the termination of the Merger Agreement.
Notwithstanding the foregoing, such right of termination shall not be available
to any party whose breach of any obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be
consummated. No such termination shall relieve any party from liability for any
breach of this letter agreement.
You hereby acknowledge and agree that Buyer may be irreparably damaged
and would not have an adequate remedy at law for money damages in the event that
any of the covenants contained in this letter agreement were not performed in
accordance with its terms or otherwise were materially breached. You therefore
agree that Buyer may be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific enforcement
of such covenants in addition to any other remedy to which it may be entitled,
at law or in equity. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
New York. Each of the parties shall
<PAGE> 9
Mr. John A. Koehler
June 30, 1999
Page 3
pay its own expenses in connection with the execution and performance of this
letter agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
You agree that in connection with any legal action taken against you by
Buyer as a result of any action or inaction by you arising hereunder, service of
process may be made upon you at the address set forth below your signature by a
duly authorized agent for serving process in the jurisdiction in which such
address is located.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
EQUANT N.V.
EQUANT HOLDINGS U.S., INC.
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
--------------------------------
Name: Jean-Yves Charlier
-----------------------------
Title:
----------------------------
Acknowledged and agreed as of this 30th day of June, 1999:
/s/ John A. Koehler
--------------------------------
JOHN A. KOEHLER
Service of Process Address:
TechForce Corporation
5740 Rio Vista Drive
Clearwater, Florida 34695
<PAGE> 10
EQUANT N.V.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
June 30, 1999
TA Venture Investors Limited Partnership
High Street Tower, Suite 2500
125 High Street
Boston, MA 02110
Attention: Mr. Richard D. Tadler
Re: TA Venture Investors Limited Partnership (the "Stockholder")
Dear Mr. Tadler:
This letter is to confirm our agreement regarding all of the 19,394
shares of common stock, par value $.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation (the "Company"), owned beneficially or of
record by the Stockholder ("you"). In order to induce Equant Acquisition Corp.,
a subsidiary of Equant Holdings U.S., Inc., which is a subsidiary of Equant N.V.
(together, "Buyer"), to enter into an Agreement and Plan of Merger, to be dated
as of the date hereof between the Company and Buyer (the "Merger Agreement"),
you hereby agree as follows:
Subject to the terms and conditions hereof, prior to the expiration
date of the tender offer (the "Expiration Date") to be commenced by Buyer or an
affiliate of Buyer pursuant to the Merger Agreement (the "Tender Offer"), you
will tender to Buyer or its affiliate, or cause to be tendered, all of the
Shares, provided, that this obligation is not effective if you receive a higher
offer for such Shares. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in any event prior to the expiration date of
the Tender Offer, re-tender such Shares to Buyer or its affiliate.
You hereby agree not to sell, transfer or encumber the Shares (except
in the Tender Offer or to Buyer) at any time prior to the date this letter
agreement is terminated in accordance with its terms.
You hereby represent and warrant as to the Shares that (i) you are the
sole owner of and have full right, power and authority to sell and vote the
Shares, or, if you are not the sole owner, you have full right, power and
authority to sell and to vote the Shares, and, in either event, this letter
agreement is a legal, valid and binding agreement, enforceable against you, in
accordance with its terms; (ii) neither the execution of this letter agreement
nor the consummation by you of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its affiliate shall upon purchase of the Shares receive good and marketable
title to the Shares, free
<PAGE> 11
Mr. Richard D. Tadler
June 30, 1999
Page 2
and clear of all liens, claims, encumbrances and security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power
and authority to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares
(and any other voting securities issued or exchanged with respect to such shares
upon any reclassification, recapitalization, reorganization, stock split, stock
dividend or other change in the capital structure of the Company)of the Company
which you may own, or have the power to vote, (i) in the manner directed by
Buyer with respect to any matters directly related to the acquisition of the
Company by Buyer and (ii) against any other mergers, recapitalizations, business
combinations, sales of assets, liquidations or similar transactions involving
the Company, or any other matters which would be inconsistent with Buyer's
intended acquisition of the Company.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Merger Agreement and any documents or instruments contemplated thereby
(i) constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and (ii) supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any other
person or entity who is not a party hereto any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, (ii) by either party after the Expiration
Date, or (iii) by either party after the termination of the Merger Agreement.
Notwithstanding the foregoing, such right of termination shall not be available
to any party whose breach of any obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be
consummated. No such termination shall relieve any party from liability for any
breach of this letter agreement.
You hereby acknowledge and agree that Buyer may be irreparably damaged
and would not have an adequate remedy at law for money damages in the event that
any of the covenants contained in this letter agreement were not performed in
accordance with its terms or otherwise were materially breached. You therefore
agree that Buyer may be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific enforcement
of such covenants in addition to any other remedy to which it may be entitled,
at law or in equity. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
New York. Each of the parties shall pay its own expenses in connection with the
execution and performance of this letter agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect
<PAGE> 12
Mr. Richard D. Tadler
June 30, 1999
Page 3
and shall in no way be affected, impaired or invalidated.
You agree that in connection with any legal action taken against you by
Buyer as a result of any action or inaction by you arising hereunder, service of
process may be made upon you at the address set forth below your signature by a
duly authorized agent for serving process in the jurisdiction in which such
address is located.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
EQUANT N.V.
EQUANT HOLDINGS U.S., INC.
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
--------------------------------
Name: Jean-Yves Charlier
-----------------------------
Title:
----------------------------
Acknowledged and agreed as of this 30th day of June, 1999:
TA VENTURE INVESTORS LIMITED PARTNERSHIP
By: /s/ Richard D. Tadler
------------------------------------------
Name: Richard D. Tadler
----------------------------------------
Title:
------------------------------------
Service of Process Address:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
<PAGE> 13
EQUANT N.V.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
June 30, 1999
TA Associates, Inc.
High Street Tower, Suite 2500
125 High Street
Boston, MA 02110
Attention: Mr. Richard D. Tadler
Re: TA Associates, Inc.,
TA Associates VII L.P.,
TA Associates VI L.P.,
TA Associates AAPII Partners, L.P.,
Advent VII L.P.,
Advent New York L.P.,
Advent Industrial II L.P., and
Advent Atlantic and Pacific II L.P., collectively the
"Stockholders"
Dear Mr. Tadler:
This letter is to confirm our agreement regarding all of the 1,785,335
shares of common stock, par value $.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation (the "Company"), owned beneficially or of
record by the Stockholders ("you"). In order to induce Equant Acquisition Corp.,
a subsidiary of Equant Holdings U.S., Inc., which is a subsidiary of Equant N.V.
(together, "Buyer"), to enter into an Agreement and Plan of Merger, to be dated
as of the date hereof between the Company and Buyer (the "Merger Agreement"),
you hereby agree as follows:
Subject to the terms and conditions hereof, prior to the expiration
date of the tender offer (the "Expiration Date") to be commenced by Buyer or an
affiliate of Buyer pursuant to the Merger Agreement (the "Tender Offer"), you
will tender to Buyer or its affiliate, or cause to be tendered, all of the
Shares, provided, that this obligation is not effective if you receive a higher
offer for such Shares. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in any event prior to the expiration date of
the Tender Offer, re-tender such Shares to Buyer or its affiliate.
You hereby agree not to sell, transfer or encumber the Shares (except
in the Tender Offer or to Buyer) at any time prior to the date this letter
agreement is terminated in accordance with its terms.
<PAGE> 14
Mr. Richard D. Tadler
June 30, 1999
Page 2
You hereby represent and warrant as to the Shares that (i) you are the
sole owner of and have full right, power and authority to sell and vote the
Shares, or, if you are not the sole owner, you have full right, power and
authority to sell and to vote the Shares, and, in either event, this letter
agreement is a legal, valid and binding agreement, enforceable against you, in
accordance with its terms; (ii) neither the execution of this letter agreement
nor the consummation by you of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its affiliate shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power
and authority to enter into this letter agreement.
You hereby agree to vote all of the Shares, and any other common shares
(and any other voting securities issued or exchanged with respect to such shares
upon any reclassification, recapitalization, reorganization, stock split, stock
dividend or other change in the capital structure of the Company)of the Company
which you may own, or have the power to vote, (i) in the manner directed by
Buyer with respect to any matters directly related to the acquisition of the
Company by Buyer and (ii) against any other mergers, recapitalizations, business
combinations, sales of assets, liquidations or similar transactions involving
the Company, or any other matters which would be inconsistent with Buyer's
intended acquisition of the Company.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Merger Agreement and any documents or instruments contemplated thereby
(i) constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and (ii) supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any other
person or entity who is not a party hereto any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, (ii) by either party after the Expiration
Date, or (iii) by either party after the termination of the Merger Agreement.
Notwithstanding the foregoing, such right of termination shall not be available
to any party whose breach of any obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be
consummated. No such termination shall relieve any party from liability for any
breach of this letter agreement.
You hereby acknowledge and agree that Buyer may be irreparably damaged
and would
<PAGE> 15
Mr. Richard D. Tadler
June 30, 1999
Page 3
not have an adequate remedy at law for money damages in the event that any of
the covenants contained in this letter agreement were not performed in
accordance with its terms or otherwise were materially breached. You therefore
agree that Buyer may be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific enforcement
of such covenants in addition to any other remedy to which it may be entitled,
at law or in equity. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
New York. Each of the parties shall pay its own expenses in connection with the
execution and performance of this letter agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
You agree that in connection with any legal action taken against you by
Buyer as a result of any action or inaction by you arising hereunder, service of
process may be made upon you at the address set forth below your signature by a
duly authorized agent for serving process in the jurisdiction in which such
address is located.
<PAGE> 16
Mr. Richard D. Tadler
June 30, 1999
Page 4
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
EQUANT N.V.
EQUANT HOLDINGS U.S., INC.
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
-------------------------------
Name: Jean-Yves Charlier
-----------------------------
Title:
----------------------------
Acknowledged and agreed as of this 30th day of June, 1999:
TA Associates, Inc.,
TA Associates VII L.P.,
TA Associates VI L.P.,
TA Associates AAPII Partners, L.P.,
Advent New York L.P.,
Advent Industrial II L.P., and
Advent Atlantic and Pacific L.P.
By: /s/ Richard D. Tadler
--------------------------------------------------
Service of Process Address:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
<PAGE> 17
EQUANT N.V.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
June 30, 1999
Mr. Paul J. Ferri
Matrix Partners
1000 Winter Street, Suite 4500
Waltham, MA 02154
Dear Mr. Ferri:
This letter is to confirm our agreement regarding all of the 152,665
shares of common stock, par value $.01 per share (the "Shares"), of TechForce
Corporation, a Georgia corporation (the "Company"), owned beneficially or of
record by you. In order to induce Equant Acquisition Corp., a subsidiary of
Equant Holdings U.S., Inc., which is a subsidiary of Equant N.V. (together,
"Buyer"), to enter into an Agreement and Plan of Merger, to be dated as of the
date hereof between the Company and Buyer (the "Merger Agreement"), you hereby
agree as follows:
Subject to the terms and conditions hereof, prior to the expiration
date of the tender offer (the "Expiration Date") to be commenced by Buyer or an
affiliate of Buyer pursuant to the Merger Agreement (the "Tender Offer"), you
will tender to Buyer or its affiliate, or cause to be tendered, all of the
Shares, provided, that this obligation is not effective if you receive a higher
offer for such Shares. If you withdraw your tender of Shares in the Tender
Offer, you shall immediately, but in any event prior to the expiration date of
the Tender Offer, re-tender such Shares to Buyer or its affiliate.
You hereby agree not to sell, transfer or encumber the Shares (except
in the Tender Offer or to Buyer) at any time prior to the date this letter
agreement is terminated in accordance with its terms.
You hereby represent and warrant as to the Shares that (i) you are the
sole owner of and have full right, power and authority to sell and vote the
Shares, or, if you are not the sole owner, you have full right, power and
authority to sell and to vote the Shares, and, in either event, this letter
agreement is a legal, valid and binding agreement, enforceable against you, in
accordance with its terms; (ii) neither the execution of this letter agreement
nor the consummation by you of the transactions contemplated hereby will
constitute a violation of or default under, or conflict with, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which you are a party or by which you or the Shares are bound; and (iii) Buyer
or its affiliate shall upon purchase of the Shares receive good and marketable
title to the Shares, free and clear of all liens, claims, encumbrances and
security interests of any kind.
Buyer hereby represents and warrants that it has the corporate power
and authority to enter into this letter agreement.
<PAGE> 18
Mr. Paul J. Ferri
June 30, 1999
Page 2
You hereby agree to vote all of the Shares, and any other common shares
(and any other voting securities issued or exchanged with respect to such shares
upon any reclassification, recapitalization, reorganization, stock split, stock
dividend or other change in the capital structure of the Company)of the Company
which you may own, or have the power to vote, (i) in the manner directed by
Buyer with respect to any matters directly related to the acquisition of the
Company by Buyer and (ii) against any other mergers, recapitalizations, business
combinations, sales of assets, liquidations or similar transactions involving
the Company, or any other matters which would be inconsistent with Buyer's
intended acquisition of the Company. In furtherance of your voting agreement in
this paragraph, you hereby revoke any and all previous proxies with respect to
any of the Shares and grant to Buyer and such individuals or corporations as
Buyer may designate an irrevocable proxy to vote all of the Shares owned by you
in accordance with this paragraph on any matters which may be presented to
shareholders of the Company with respect to any matters related to the
acquisition of the Company by Buyer or any other mergers, recapitalizations,
business combinations, sales of assets, liquidations or similar transactions
involving the Company, and any other matters which would be inconsistent with
Buyer's proposed acquisition of the Company. You hereby acknowledge that such
proxy is coupled with an interest and irrevocable. In addition, you hereby agree
to execute such additional documents as Buyer may reasonably request to
effectuate its voting rights under this paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
and the Merger Agreement and any documents or instruments contemplated thereby
(i) constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and (ii) supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any other
person or entity who is not a party hereto any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, (ii) by either party after the Expiration
Date, or (iii) by either party after termination of the Merger Agreement.
Notwithstanding the foregoing, such right of termination shall not be available
to any party whose breach of any obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be
consummated. No such termination shall relieve any party from liability for any
breach of this letter agreement.
You hereby acknowledge and agree that Buyer may be irreparably damaged
and would not have an adequate remedy at law for money damages in the event that
any of the covenants contained in this letter agreement were not performed in
accordance with its terms or otherwise were materially breached. You therefore
agree that Buyer may be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific enforcement
of such covenants in addition to any other remedy to which it may be entitled,
at law or in equity. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
New York. Each of the parties shall
<PAGE> 19
Mr. Paul J. Ferri
June 30, 1999
Page 3
pay its own expenses in connection with the execution and performance of this
letter agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
You agree that in connection with any legal action taken against you by
Buyer as a result of any action or inaction by you arising hereunder, service of
process may be made upon you at the address set forth below your signature by a
duly authorized agent for serving process in the jurisdiction in which such
address is located.
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
EQUANT N.V.
EQUANT HOLDINGS U.S, INC.
EQUANT ACQUISITION CORP.
By: /s/ Jean-Yves Charlier
-------------------------------
Name: Jean-Yves Charlier
-----------------------------
Title:
----------------------------
Acknowledged and agreed as of this 30th day of June, 1999:
/s/ Paul J. Ferri
-----------------------------------
PAUL J. FERRI
Service of Process Address:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
<PAGE> 1
Exhibit (c)(4)
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and JERREL W. KEE, an officer of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as an officer of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP.
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
ss.ss. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
<PAGE> 2
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
<PAGE> 3
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
<PAGE> 4
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Orville Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
<PAGE> 5
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Jerrel W. Kee
- ---------------------------------
Jerrel W. Kee
TECHFORCE CORPORATION
By: /s/ John A. Koehler
------------------------------
Name: John A. Koehler
----------------------------
Title: Chief Executive Officer
---------------------------
-5-
<PAGE> 6
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and PAUL J. FERRI, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
ss.ss. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
<PAGE> 7
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
<PAGE> 8
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
<PAGE> 9
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
8. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Orville Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
<PAGE> 10
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as the date first written above.
INDEMNITEE
/s/ Paul J. Ferri
- ---------------------------------
Paul J. Ferri
TECHFORCE CORPORATION
By: /s/ Jerrel W. Kee
------------------------------
Name: Jerrel W. Kee
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
<PAGE> 11
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and BERTIL D. NORDIN, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
ss.ss. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
<PAGE> 12
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
<PAGE> 13
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
<PAGE> 14
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Orville Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
<PAGE> 15
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Bertil D. Nordin
- ---------------------------------
Bertil D. Nordin
TECHFORCE CORPORATION
By: /s/ Jerrel W. Kee
------------------------------
Name: Jerrel W. Kee
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
<PAGE> 16
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and RICHARD D. TADLER, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
ss.ss. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
<PAGE> 17
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is entitled
to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as the
Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
<PAGE> 18
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
<PAGE> 19
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Orville Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
<PAGE> 20
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Richard D. Tadler
- ---------------------------------
Richard D. Tadler
TECHFORCE CORPORATION
By: /s/ Jerrel W. Kee
------------------------------
Name: Jerrel W. Kee
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
<PAGE> 21
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and JOHN A. KOEHLER, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP.; and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
ss.ss. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
<PAGE> 22
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
<PAGE> 23
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
<PAGE> 24
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., 45 Orville Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
<PAGE> 25
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ John A. Koehler
- ---------------------------------
John A. Koehler
TECHFORCE CORPORATION
By: /s/ Jerrel W. Kee
------------------------------
Name: Jerrel W. Kee
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
<PAGE> 26
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and WILLIAM E. BASSETT, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
ss.ss. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
<PAGE> 27
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
<PAGE> 28
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
<PAGE> 29
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Orville Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
<PAGE> 30
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ William E. Bassett
- ---------------------------------
William E. Bassett
TECHFORCE CORPORATION
By: /s/ Jerrel W. Kee
------------------------------
Name: Jerrel W. Kee
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
<PAGE> 1
Exhibit (c)(5)
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is effective as of June
30, 1999, by and among John A. Koehler ("Indemnitor") and Equant N.V., Equant
Holdings U.S., Inc. and Equant Acquisition Corp. (each, an "Indemnified Party"
and collectively, the "Indemnified Parties").
WHEREAS, simultaneously with the execution of this Agreement, the
Indemnified Parties are entering into that certain Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement") among the Indemnified
Parties and TechForce Corporation (the "Company"); and
WHEREAS, it is a condition to the Indemnified Parties entering into the
Merger Agreement that Indemnitor enter into this Agreement with the Indemnified
Parties;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Definitions: Capitalized terms used, but not defined herein, shall have
the meanings ascribed thereto in the Merger Agreement.
2. Indemnification:
2.1 Duty to Indemnify. Notwithstanding the provisions of Section 9.1 of
the Merger Agreement regarding the non-survival of the Company's representations
and warranties contained in the Merger Agreement, Indemnitor agrees as follows:
(a) To indemnify, defend and hold harmless each Indemnified Party
and their affiliates (including any officer, director, stockholder,
partner, member, employee, agent or representative of any thereof) (each a
"Parent Affiliate") to the extent provided in Section 2.5 from and against
all assessments, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties and reasonable fees and
expenses of legal counsel chosen by any Indemnified Party or Parent
Affiliate (collectively, "Damages"), imposed upon or incurred by any
Indemnified Party or any Parent Affiliate arising out of or in connection
with or resulting from (i) any breach of any representation or warranty of
the Company if, at the time such representation or warranty was made, it
was made fraudulently and Indemnitor had actual knowledge of such fraud,
or (ii) nonfulfillment, at any time prior to the consummation of the
Offer, of any covenant or agreement by the Company if, at the time such
covenant was given, it was given with the fraudulent intent that it never
be performed and Indemnitor had actual knowledge of such fraudulent
intent, in each case contained in or made pursuant to the Merger Agreement
or any Schedule thereto, or any certificate furnished or to be furnished
to any Indemnified Party thereunder.
<PAGE> 2
(b) The Indemnitor shall, to the extent provided herein, reimburse
an Indemnified Party promptly after delivery of an Indemnification Notice
(defined below) certifying that the Indemnified Party has incurred Damages
after compliance with the terms of this Section 2; provided that the
Indemnitor shall have the right to contest any such Damages in good faith.
(c) Notwithstanding anything herein to the contrary, Indemnitor
shall have no indemnification obligations hereunder unless the Indemnified
Parties have consummated the Merger.
2.2 Notice of Damages. An Indemnified Party will give the Indemnitor
prompt notice (hereinafter, the "Indemnification Notice") of any demands,
claims, actions or causes of action (collectively, "Claims") asserted against
the Indemnified Party. Failure to give such notice shall not relieve the
Indemnitor of any obligations which the Indemnitor may have to the Indemnified
Party under this Section 2, except to the extent that such failure has
materially adversely prejudiced the Indemnitor under the provisions for
indemnification contained in this Agreement.
2.3 Conditions of Indemnification of Third Party Claims. The obligations
and liabilities of Indemnitor under Section 2.1 hereof with respect to Damages
resulting from Claims by persons not party to the Merger Agreement shall be
subject to the following terms and conditions:
(a) The Indemnified Parties will have the right (upon further notice
to the Indemnitor) to undertake the defense, compromise or settlement of
such Claim for the account of the Indemnitor, subject to the right of the
Indemnitor to participate in the defense of such Claim pursuant to the
terms of paragraph (b) of this Section 2.3 at any time prior to
settlement, compromise or final determination thereof.
(b) After delivery of an Indemnification Notice in respect of a
Claim and subject to paragraph (c) of this Section 2.3, the Indemnitor may
elect, by written notice to the Indemnified Party, to participate in the
defense thereof with counsel reasonably satisfactory to the Indemnified
Party. If the Indemnitor chooses to participate in the defense of any
claim, the Indemnified Party shall cooperate with all reasonable requests
of the Indemnitor and shall make available to the Indemnitor any books,
records or other documents within its control that are necessary or
appropriate for such defense.
(c) The Indemnitor shall not, without written consent of all
Indemnified Parties, settle or compromise any Claim or consent to entry of
any judgment which does not include as an unconditional term thereof the
release by the claimant or the plaintiff of all Indemnified Parties from
all liability arising from events which allegedly give rise to such Claim.
(d) Until such time as the amount of Damages incurred by the
Indemnified Party exceeds $250,000, all fees and expenses of counsel
selected by Indemnitor incurred in participating in the defense of such
Claim shall be borne solely by Indemnitor. From and
-2-
<PAGE> 3
after such time as the amount of Damages incurred by the Indemnified Party
exceeds $250,000, subject to paragraph (e) of this Section 2.3, the
reasonable fees and expenses of counsel to Indemnitor thereafter incurred,
together with the reasonable fees and expenses of counsel to Indemnitor
incurred by Indemnitor prior to such time as the Damages of the
Indemnified Party exceed $250,000, shall be considered additional Damages
for purposes of this Section 2.
(e) If the Indemnified Party desires not to defend any Claim or to
settle or compromise any Claim or consent to entry of any judgment with
respect to such Claim, the Indemnified Party shall provide written notice
(the "Proposed Settlement Notice") to the Indemnitor of such desire, which
Proposed Settlement Notice shall state the amount of Damages which the
Indemnified Party is prepared to incur as a result of such settlement,
compromise or entry of judgment (the "Proposed Damage Limit"). Indemnitor
shall have the right, by written notice to the Indemnified Party within
ten (10) days after receipt of the Proposed Settlement Notice, to assume
the defense of such Claim and to employ its own counsel in the defense of
such Claim; provided that upon the final determination of Damages with
respect to such Claim, any Damages (including counsel fees and expenses)
in excess of the Proposed Damage Limit shall be borne solely by Indemnitor
and shall not be considered Damages for purposes of making any
determinations pursuant to Section 2.5 as to the amount for which
Indemnitor may be responsible.
2.4 Limitation on Indemnification. Notwithstanding anything to the
contrary provided in the Merger Agreement, the obligations of Indemnitor under
this Agreement to indemnify any Indemnified Party with respect to any Claim
pursuant to Section 2.2 shall be of no force and forever barred unless the
Indemnified Party has given the Indemnitor notice of such claim prior to such
date which is eighteen (18) months after the consummation of the Merger, as the
case may be. In any event, the parties shall fully cooperate with each other and
their respective counsel in accordance with Section 2.3 in connection with any
such litigation, defense, settlement or other attempted resolution.
2.5 Limitation upon Indemnification Obligations. Indemnitor shall not be
required to indemnify any Indemnified Party until such time as the Damages in
the aggregate equal or exceed two hundred fifty thousand dollars ($250,000.00).
Notwithstanding anything herein to the contrary, no indemnification shall be
required by Indemnitor for any Damages in the aggregate in excess of $250,000
(i.e., Indemnitor's maximum liability for Damages under this Agreement shall not
exceed $250,000).
3. Dispute Resolution. Any party may commence a civil action in a court of
appropriate jurisdiction to resolve disputes hereunder. Nothing contained in
this Section shall prevent the parties from settling any dispute by mutual
agreement at any time.
4. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Indemnitor pursuant to Section 3, Indemnified Parties
shall also be entitled to be paid
-3-
<PAGE> 4
for expenses (including reasonable attorneys' fees) incurred in connection with
the application for the court-ordered payments.
5. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs
and legal representatives of the parties hereto, including, with respect to the
Indemnitor, any Indemnitor or other entity.
6. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other right which
Indemnified Parties may have or may hereafter acquire under any statute,
agreement or otherwise.
7. Notices; Indemnified Parties' Obligations. Notices to the Indemnitor
shall be directed to TechForce Corporation, 5741 Rio Vista Drive, Clearwater,
Florida 33760-3117, Attn.: John Koehler (or such other address as the Indemnitor
shall designate in writing to Indemnified Parties). In addition, Indemnified
Parties shall give the Indemnitor such information and cooperation as it may
reasonably require and as shall be within Indemnified Parties' power.
8. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or in part,
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.
9. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
10. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of New
York.
[SIGNATURE PAGE FOLLOWS]
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<PAGE> 5
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
INDEMNITOR:
/s/ John A. Koehler
- ------------------------------------
John A. Koehler
INDEMNIFIED PARTIES:
EQUANT N.V.
By:/s/ Richard H. Blaustein
---------------------------------
Name: Richard H. Blaustein
-------------------------------
Title: Authorized Signatory
------------------------------
EQUANT HOLDINGS U.S., INC.
By:/s/ Richard H. Blaustein
---------------------------------
Name: Richard H. Blaustein
-------------------------------
Title: Authorized Signatory
------------------------------
EQUANT ACQUISITION CORP.
By:/s/ Richard H. Blaustein
---------------------------------
Name: Richard H. Blaustein
-------------------------------
Title: Vice President
------------------------------
-5-
<PAGE> 1
Exhibit (c)(6)
EQUANT INTEGRATION SERVICES, INC.
45 ORVILLE DRIVE
BOHEMIA, NY 11716
May 27, 1999
TechForce Corporation
5741 Rio Vista Drive
Clearwater, FL 33760
Attention: John A. Koehler, President and Chief Executive Officer
Ladies and Gentlemen:
In consideration of, and as a prerequisite to, the willingness of Equant
Integration Services, Inc. (together with its affiliates, "Equant") to engage in
further discussions with TechForce Corporation ("TechForce") regarding a
possible transaction (the "Transaction") and to commit additional resources to a
due diligence investigation of TechForce and its affairs, Equant and TechForce
hereby agree as follows:
1. TechForce agrees that for a period commencing on May 19, 1999 and ending
on the earlier of June 9, 1999 or the date, if any, on which Equant terminates
discussions regarding the Transaction (the "Exclusive Period"), TechForce will
not, and will not permit its officers, directors, employees, agents,
representatives or advisors ("Representatives") to, and will use its best
efforts to ensure that its principal shareholders do not, directly or
indirectly:
(a) initiate, solicit, encourage or engage in any discussions with
any person or entity other than Equant or its Representatives in respect of any
inquiry, proposal or offer that relates to, or could reasonably be expected to
lead to, any proposal or offer that relates to, any merger, consolidation,
business combination, sale of substantial assets, sale of shares of capital
stock (including, without limitation, by way of a tender offer), reorganization,
joint venture or similar transaction involving TechForce or any of its
subsidiaries (any of the foregoing, an "Acquisition Proposal");
(b) provide any confidential information in respect of TechForce or
its affairs to any person or entity other than Equant or its Representatives (i)
in connection with any Acquisition Proposal or (ii) under circumstances which
could reasonably be expected to lead to or result in an Acquisition Proposal; or
(c) take any action to facilitate or enter into any agreement or
understanding in respect of any Acquisition Proposal with any person or entity
other than Equant (the restrictions in this Section 1 collectively, the
"Exclusive Period Restrictions").
2. Notwithstanding the foregoing, nothing contained herein shall prohibit
TechForce or its Representatives at any time from taking any of the actions
described in paragraphs 1(a), (b)
<PAGE> 2
TechForce Corporation
May 27, 1999
Page 2
and (c) above, in response to an unsolicited bona fide written Acquisition
Proposal, if, and only to the extent that, (A) the Board of Directors of
TechForce determines in good faith that such action(s) is required for the
discharge of their fiduciary duties to the stockholders of TechForce under
applicable law; (B) prior to furnishing such information to any person,
TechForce receives from such person an executed confidentiality agreement; and
(C) prior to furnishing such information to, or entering into discussions with,
such person, TechForce provides written notice to Equant of such discussions;
provided that, in no event, shall TechForce initiate or solicit any Acquisition
Proposal during the Exclusive Period.
3. During the Exclusive Period, TechForce shall promptly advise Equant of
any Acquisition Proposal and the terms and conditions thereof.
4. During the Exclusive Period, TechForce will provide Equant and its
Representatives access at reasonable times to all books, records and documents
related to TechForce and its affairs and an opportunity to discuss such books,
records and documents with appropriate Representatives of TechForce.
5. Without prejudice to the rights and remedies otherwise available to
each of the parties hereto, each such party shall be entitled to equitable
relief by way of specific performance, injunction or otherwise if the other
party or any of its Representatives breaches or threatens to breach any of the
provisions of this letter agreement. The prevailing party in any litigation
instituted under this paragraph, shall be entitled to receive reasonable
attorneys' fees and expenses upon an adjudication by a court of competent
jurisdiction that this agreement has been breached or there has been an
anticipatory breach.
6. It is understood and acknowledged by Equant and TechForce that neither
Equant nor TechForce is under any obligation to enter into any transaction and
either TechForce or Equant may terminate discussions concerning any possible
transaction at any time and for any reason or no reason and the party
terminating such discussions shall have no liability to the other party, except
for breaches of obligations expressly provided herein or in the Confidentiality
Agreement between Equant and TechForce dated June 18, 1998, as amended on May
18, 1999 (the "Confidentiality Agreement").
7. Equant and TechForce agree to keep confidential and not disclose
publicly, and agree to use their best efforts to cause their respective
Representatives to keep confidential and not disclose publicly, (i) the terms
of any proposed Transaction involving Equant and TechForce and (ii) the fact
that any such Transaction is being considered or discussed, except as required
by law, court order or the rules of any stock exchange.
<PAGE> 3
TechForce Corporation
May 27, 1999
Page 3
8. This letter agreement and the Confidentiality Agreement contain the entire
agreement between Equant and TechForce concerning, and supersede all prior
understandings and communications between them concerning, the subject matter
hereof and thereof and any transaction referred to herein or therein. No
amendment may be made to the terms of this letter agreement except by an
agreement in writing signed by both parties hereto. This letter agreement shall
be governed by and construed in accordance with the laws of the State of
New York.
9. This letter agreement will terminate upon the earlier to occur of (a) the
expiration of the Exclusive Period, or (b) the execution of a definitive
agreement by TechForce and Equant to effect the Transaction.
If you are in agreement with the terms of this letter, please sign in the
space provided below and return by facsimile to Equant with an original signed
copy to be delivered by courier promptly thereafter. This letter agreement shall
be of no force or effect if it is not so signed and returned by facsimile to
Equant prior to 5:00 p.m. on May 28, 1999.
Very truly yours,
EQUANT INTEGRATION SERVICES, INC.
By: /s/ R. Blaustein
-----------------------------
Name: R. BLAUSTEIN
---------------------------
Title:
--------------------------
Accepted and agreed May 27, 1999
TECHFORCE CORPORATION
By: /s/ John A. Koehler
------------------------------
John A. Koehler, President
and Chief Executive Officer
