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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
TECHFORCE CORPORATION
(NAME OF SUBJECT COMPANY)
EQUANT ACQUISITION CORP.
EQUANT HOLDINGS U.S., INC.
EQUANT N.V.
(BIDDERS)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
878331107
(CUSIP NUMBER OF CLASS OF SECURITIES)
RICHARD H. BLAUSTEIN
VICE-PRESIDENT
EQUANT ACQUISITION CORP.
C/O EQUANT INTEGRATION SERVICES, INC.
3 PARK AVENUE, 25TH FLOOR,
NEW YORK, NEW YORK 10016
TELEPHONE: (212) 251-2001
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
COPY TO:
SARAH HEWITT, ESQ.
BROWN RAYSMAN MILLSTEIN FELDER & STEINER LLP
120 WEST 45TH STREET
NEW YORK, NEW YORK 10036
TELEPHONE: (212) 703-1319
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14D-1
CUSIP NO. 878331107 PAGE 2 OF 6 PAGES
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1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Equant N.V.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
PF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(e) or 2(f)
[ ]
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6. CITIZEN OR PLACE OF ORGANIZATION
The Netherlands
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
844,874 shares of Common Stock pursuant to Voting and Tender
Agreements dated as of June 30, 1999(1)
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8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
10.2%
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10. TYPE OF REPORTING PERSON
CO
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</TABLE>
(1) The Reporting Person disclaims beneficial ownership of such shares and this
statement shall not be construed as an admission that the Reporting Person
is the beneficial owner of any securities covered by this statement.
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14D-1
CUSIP NO. 878331107 PAGE 3 OF 6 PAGES
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1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Equant Holdings U.S., Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(e) or 2(f)
[ ]
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6. CITIZEN OR PLACE OF ORGANIZATION
Delaware
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
844,874 shares of Common Stock pursuant to Voting and Tender
Agreements dated as of June 30, 1999(1)
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8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
10.2%
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10. TYPE OF REPORTING PERSON
CO
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</TABLE>
(1) The Reporting Person disclaims beneficial ownership of such shares and this
statement shall not be construed as an admission that the Reporting Person
is the beneficial owner of any securities covered by this statement.
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14D-1
CUSIP NO. 878331107 PAGE 4 OF 6 PAGES
<TABLE>
<S> <C> <C>
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1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Equant Acquisition Corp.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(e) or 2(f)
[ ]
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6. CITIZEN OR PLACE OF ORGANIZATION
Delaware
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
844,874 shares of Common Stock pursuant to Voting and Tender
Agreements dated as of June 30, 1999(1)
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8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
10.2%
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10. TYPE OF REPORTING PERSON
CO
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</TABLE>
(1) The Reporting Person disclaims beneficial ownership of such shares and this
statement shall not be construed as an admission that the Reporting Person
is the beneficial owner of any securities covered by this statement.
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This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed with the Securities and Exchange Commission on July 7, 1999
(the "Statement") relating to the tender 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 an
indirect wholly owned subsidiary of Equant N.V., a company organized under the
laws of The Netherlands (the "Ultimate Parent"), to purchase all of the issued
and 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"), a copy of which is
attached hereto as Exhibit (a)(1), and in the related Letter of Transmittal
(which, together with the Offer to Purchase, as amended or supplemented from
time to time, constitute the "Offer"), a copy of which was previously filed as
Exhibit (a)(2).
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
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(a)(1) Offer to Purchase dated July 7, 1999.
(a)(2) Letter of Transmittal.*
(a)(3) Notice of Guaranteed Delivery.*
(a)(4) Letter from the Dealer Manager to Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.*
(a)(5) Letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) Summary Advertisement as published on July 7, 1999.*
(a)(8) Joint Press Release issued by the Company and Equant N.V. on
June 30, 1999.*
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of June 30, 1999, by
and among Equant N.V., Equant Holdings U.S., Inc., Equant
Acquisition Corp. and TechForce Corporation.*
(c)(2) Voting and Tender Letter Agreements, dated as of June 30,
1999, by and among Equant N.V., Equant Holdings U.S., Inc.,
Equant Acquisition Corp. and certain shareholders of the
Company.*
(c)(3) Indemnification Agreement, dated as of June 30, 1999, by and
among Equant N.V., Equant Holdings U.S., Inc., Equant
Acquisition Corp. and John A. Koehler.*
(c)(4) Confidentiality Agreement dated June 18, 1998 between Equant
Integration Services, Inc. and TechForce Corporation and
Modification Agreement dated May 18, 1999.*
(c)(5) Exclusivity Letter.*
(c)(6) Option Election Form.*
(c)(7) Employment Letters, each dated June 29, 1999, between the
Company and each of John A. Koehler, Jerrel W. Kee, James
Macchiarola and Robert Harvey.*
(c)(8) Confidentiality and No-Solicitation Agreements, each dated
June 30, 1999, between the Company and each of Jerrel W.
Kee, James Macchiarola and Robert Harvey; and
Confidentiality, No-Solicitation and Non-Compete Agreement
dated June 30, 1999 between the Company and John A.
Koehler.*
(c)(9) Indemnification Agreements, dated as of June 30, 1999, by
and between the Company and each member of the Board of
Directors.*
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
</TABLE>
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* Previously filed
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 1 to the Statement is true,
complete and correct.
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
Date: July 22, 1999
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EXHIBIT INDEX
<TABLE>
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EXHIBIT PAGE
NO. DESCRIPTION NO.
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(a)(1) Offer to Purchase dated July 7, 1999.
(a)(2) Letter of Transmittal.*
(a)(3) Notice of Guaranteed Delivery.*
(a)(4) Letter from the Dealer Manager to Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.*
(a)(5) Letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) Summary Advertisement as published on July 7, 1999.*
(a)(8) Joint Press Release issued by the Company and Equant N.V. on
June 30, 1999.*
(c)(1) Agreement and Plan of Merger, dated as of June 30, 1999, by
and among Equant N.V., Equant Holdings U.S., Inc., Equant
Acquisition Corp. and TechForce Corporation.*
(c)(2) Voting and Tender Letter Agreements, dated as of June 30,
1999, by and among Equant N.V., Equant Holdings U.S., Inc.,
Equant Acquisition Corp. and certain shareholders of the
Company.*
(c)(3) Indemnification Agreement, dated as of June 30, 1999, by and
among Equant N.V., Equant Holdings U.S., Inc., Equant
Acquisition Corp. and John A. Koehler.*
(c)(4) Confidentiality Agreement dated June 18, 1998 between Equant
Integration Services, Inc. and TechForce Corporation and
Modification Agreement dated May 18, 1999.*
(c)(5) Exclusivity Letter.*
(c)(6) Option Election Form.*
(c)(7) Employment Letters, each dated June 29, 1999, between the
Company and each of John A. Koehler, Jerrel W. Kee, James
Macchiarola and Robert Harvey.*
(c)(8) Confidentiality and No-Solicitation Agreements, each dated
June 30, 1999, between the Company and each of Jerrel W.
Kee, James Macchiarola and Robert Harvey; and
Confidentiality, No-Solicitation and Non-Compete Agreement
dated June 30, 1999 between the Company and John A.
Koehler.*
(c)(9) Indemnification Agreements, dated as of June 30, 1999, by
and between the Company and each member of the Board of
Directors.*
</TABLE>
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* Previously filed
7
<PAGE> 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>
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PAGE
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<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
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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
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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 Expiration Date; provided that 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 any applicable foreign regulatory requirements
have been satisfied or waived on or prior to the Expiration Date. 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.
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<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 the 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 the 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 the 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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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 the 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.
15
<PAGE> 16
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.
16
<PAGE> 17
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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<PAGE> 18
(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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<PAGE> 19
(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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<PAGE> 20
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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<PAGE> 21
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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<PAGE> 22
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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<PAGE> 23
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, on or prior to the
Expiration Date, (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;
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(ii) prohibiting or materially limiting the ownership or operation 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 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
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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 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
34
<PAGE> 35
state law allegedly applicable to the Offer and nothing in this Offer to
Purchase nor any action taken in connection herewith is intended as a waiver of
that right. In the event that 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.
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<PAGE> 36
The Information Agent may contact holders of Shares by mail, telephone, telex,
telegraph and personal interview and may request brokers, dealers and other
nominee stockholders to forward 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.
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<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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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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(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.
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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
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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
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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.
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(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.
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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
