As filed with the Securities and Exchange Commission on March 18, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
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VIRBAC CORPORATION
(Name of the Issuer)
VIRBAC CORPORATION
(Name of Person(s) Filing Statement)
COMMON STOCK, $0.01 PAR VALUE PER SHARE
(Title of Class of Securities)
927649
(CUSIP Number of Class of Securities)
BRIAN A. CROOK
VIRBAC CORPORATION
3200 Meacham Boulevard
Fort Worth, Texas 76137
(816) 831-5030
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
Copies to:
STEPHEN L. FLUCKIGER
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
(Agent for Service of Process)
March 18, 1999
(Date Tender Offer First Published, Sent or Given to Security Holders)
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CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
$3,000,000 $600
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* Calculated solely for the purpose of determining the filing fee, based
upon the purchase of 1,000,000 shares at the maximum tender offer price
of $3.00 per share.
[ ] Check box if any of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
Amount Previously Paid: N/A
Form or Registration No.: N/A
Filing Party: N/A
Date Filed: N/A
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<PAGE>
ITEM 1. SECURITY AND ISSUER.
(a) The issuer of the securities to which this Schedule 13E-4 relates is Virbac
Corporation, a Delaware corporation (the "Company"), and the address of its
principal executive office, and its mailing address, is 3200 Meacham
Boulevard, Fort Worth, Texas 76137.
(b) This Schedule 13E-4 relates to the offer by the Company to purchase up to
1,000,000 shares of its common stock, $0.01 par value per share (the
"Shares"), 21,968,197 of which Shares were outstanding as of March 17,
1999, at a price of $3.00 per Share in cash, upon the terms and subject to
the conditions set forth in the Offer to Purchase, dated March 18, 1999
(the "Offer to Purchase"), and in the related Letter of Transmittal (which
together constitute the "Offer"), copies of which are attached as Exhibits
(a)(1) and (a)(2), respectively, and incorporated herein by reference.
Employees, officers and directors of the Company may participate in the
Offer on the same basis as the Company's other stockholders. The
information set forth in "Introduction", Section 1, "Number of Shares;
Proration" and Section 11 "Interests of Directors and Officers;
Transactions and Arrangements Concerning Shares" of the Offer to Purchase
is incorporated herein by reference.
(c) The information set forth in "Introduction" and Section 6, "Price Range of
Shares; Dividends on the Shares" of the Offer to Purchase is incorporated
herein by reference.
(d) Not applicable.
ITEM 2. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10, "Source and Amount of Funds" of
the Offer to Purchase is incorporated herein by reference.
(b) Not applicable.
ITEM 3. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE
ISSUER OR AFFILIATE.
(a)-(j) The information set forth in "Introduction," Section 7, "Effect of the
Offer on the Market for Shares," Section 8, "Background and Purpose of the
Offer," Section 10, "Source and Amount of Funds," and Section 11, "Interest
of Directors and Officers; Transactions and Arrangements Concerning Shares"
of the Offer to Purchase is incorporated herein by reference.
ITEM 4. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in Section 8, "Background and Purpose of the Offer,"
Section 9, "Certain Information Concerning AGNU and Virbac," and Section 11,
"Interests of Directors and Officers; Transactions and Arrangements Concerning
Shares" of the Offer to Purchase is incorporated herein by reference.
ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO THE ISSUER'S SECURITIES.
The information set forth in "Introduction," Section 10, "Source and Amount of
Funds," Section 8, "Background and Purpose of the Offer," and Section 11,
"Interests of Directors and Officers; Transactions and Arrangements Concerning
Shares" of the Offer to Purchase is incorporated herein by reference.
ITEM 6. PERSONS RETAINED, EMPLOYED, OR TO BE COMPENSATED.
The information set forth in "Introduction" and Section 15, "Fees and Expenses"
of the Offer to Purchase is incorporated herein by reference.
ITEM 7. FINANCIAL INFORMATION.
(a)-(b) The information set forth in Section 9, "Certain Information Concerning
AGNU and Virbac" of the Offer to Purchase is incorporated herein by
reference.
ITEM 8. ADDITIONAL INFORMATION.
<PAGE>
(a) Not applicable.
(b) The information set forth in Section 14, "Certain Legal Matters" of the
Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 7, "Effect of the Offer on the Market
for Shares" of the Offer to Purchase is incorporated herein by reference.
(d) Not applicable.
(e) The information set forth in the Offer to Purchase and Letter of
Transmittal is incorporated herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Form of Offer to Purchase, dated March 18, 1999.
(a)(2) Form of Letter of Transmittal (including Certification of Taxpayer
Identification Number on Form W-9).
(a)(3) Form of Notice of Guaranteed Delivery.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
(a)(5) Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(b) Not applicable.
(c) Stockholders' Agreement dated February 8, 1998.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 13E-4 is true, complete
and correct.
Date: March 18, 1999 VIRBAC CORPORATION
By:/s/ Brian A. Crook
Brian A. Crook
President
<PAGE>
Exhibit (a)(1)
VIRBAC CORPORATION
(Formerly Agri-Nutrition Group Limited)
Offer to Purchase for Cash
Up to 1,000,000 Shares of its Common Stock
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON MONDAY, APRIL 19, 1999, UNLESS
THE OFFER IS EXTENDED.
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Virbac Corporation, a Delaware corporation (formerly Agri-Nutrition
Group Limited) (the "Company"), invites its stockholders ("Stockholders") to
tender shares of its Common Stock, par value $0.01 per share (the "Shares"), at
$3.00 per Share (the "Purchase Price") upon the terms and subject to the
conditions set forth herein and in the related Letter of Transmittal (which
together constitute the "Offer"). The Company will purchase up to 1,000,000
Shares that are validly tendered and not withdrawn on or prior to the Expiration
Date (as defined in Section 1), upon the terms and subject to the conditions of
the Offer, including the provisions thereof relating to proration, described
herein. The Purchase Price will be paid in cash, net to the seller, without
interest thereon, with respect to all Shares purchased. Shares not purchased
because of proration will be returned.
On March 17, 1999, the last full trading day before the
commencement of the Offer, the last reported sale price on the Nasdaq National
Market was $1.563 per Share. Stockholders are urged to obtain current market
quotations for the Shares.
The Offer to Purchase is not conditioned upon any minimum number of Shares being
tendered. The Offer is, however, subject to other conditions. See Section 13. If
fewer than 1,000,000 Shares are tendered in the Offer, certain stockholders have
agreed to tender Shares equal to the difference between 1,000,000 Shares and the
amount actually tendered. See Section 11.
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NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION ON BEHALF
OF THE COMPANY AS TO WHETHER STOCKHOLDERS SHOULD TENDER SHARES PURSUANT TO THE
OFFER. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED HEREIN
OR IN THE RELATED LETTER OF TRANSMITTAL. IF GIVEN OR MADE, SUCH RECOMMENDATION
AND SUCH OTHER INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
The Information Agent for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
450 West 33rd Street
New York, New York 10001
The date of this Offer to Purchase is March 18, 1999.
<PAGE>
IMPORTANT
Any Stockholder desiring to tender all or a portion of his, her or
its Shares should either (1) complete and sign the appropriate Letter(s) of
Transmittal (or a manually signed facsimile thereof) in accordance with the
instructions in such Letter(s) of Transmittal, mail or deliver such Letter(s) of
Transmittal and any other required documents to ChaseMellon Shareholder
Services, L.L.C. (the "Depositary" and the "Information Agent") and either
deliver the certificates for those Shares to the Depositary along with such
Letter(s) of Transmittal or tender those Shares pursuant to the procedures for
book-entry transfer set forth in Section 2 hereof or (2) request its broker,
dealer, commercial bank, trust company or other nominee to effect the tender on
its behalf. Any Stockholder whose Shares are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee must contact that
broker, dealer, commercial bank, trust company or other nominee if the
Stockholder desires to tender such Shares.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY
STOCKHOLDER AS TO WHETHER TO TENDER ALL OR ANY SHARES. EACH STOCKHOLDER MUST
MAKE HIS, HER OR ITS OWN DECISION AS TO WHETHER TO TENDER SHARES AND, IF SO, HOW
MANY TO TENDER. Directors, officers and employees of the Company who own Shares
may participate in the Offer on the same basis as the Company's other
Stockholders.
Questions and requests for assistance may be directed to the
Information Agent at its address and telephone number set forth on the back
cover of this Offer to Purchase. Requests for additional copies of this Offer to
Purchase, the Letter of Transmittal and other related materials may be directed
to the Information Agent or to brokers, dealers, commercial banks and trust
companies.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
INTRODUCTION....................................................................................1
1. Number of Shares; Proration..............................................................2
2. Procedure for Tendering Shares...........................................................3
3. Acceptance for Payment and Payment for Shares............................................5
4. Withdrawal Rights........................................................................6
5. Certain Federal Income Tax Consequences of the Offer.....................................7
6. Price Range of the Shares; Dividends on the Shares......................................10
7. Effect of the Offer on the Market for Shares............................................10
8. Background and Purpose of the Offer.....................................................11
9. Certain Information Concerning AGNU and Virbac..........................................11
10. Source and Amount of Funds..............................................................22
11. Interests of Directors and Officers; Transactions and Arrangements Concerning Shares....22
12. Extension of Tender Period; Termination; Amendments.....................................22
13. Certain Conditions of the Offer.........................................................23
14. Certain Legal Matters...................................................................24
15. Fees and Expenses.......................................................................24
16. Miscellaneous...........................................................................25
</TABLE>
CERTAIN SECTIONS OF THIS OFFER TO PURCHASE, INCLUDING, BUT NOT LIMITED
TO, SECTION 7 ENTITLED "EFFECT OF THE OFFER ON THE MARKET FOR SHARES," SECTION 8
ENTITLED "BACKGROUND AND PURPOSE OF THE OFFER" AND SECTION 9 ENTITLED "CERTAIN
INFORMATION CONCERNING AGNU AND VIRBAC," CONTAIN CERTAIN "FORWARD LOOKING
STATEMENTS" AS SUCH TERM IS USED UNDER THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995. THE COMPANY'S PERFORMANCE MAY BE AFFECTED BY MANY UNCERTAINTIES
THAT EXIST IN THE COMPANY'S OPERATIONS AND BUSINESS ENVIRONMENT THAT MAY CAUSE
ACTUAL PERFORMANCE TO DIFFER MATERIALLY FROM PERFORMANCE SUGGESTED BY ANY
FORWARD LOOKING STATEMENTS.
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<PAGE>
To the Holders of Shares of Common Stock of Virbac Corporation:
INTRODUCTION
On October 16, 1998, Agri-Nutrition Group Limited ("AGNU"), the
predecessor to the Company, entered into an Agreement and Plan of Merger
("Merger Agreement") with Virbac S.A., a French corporation ("VBSA"), Virbac,
Inc., a Delaware corporation and indirect subsidiary of VBSA ("Virbac"), and, by
an Addendum dated January 18, 1999, Interlab S.A.S., a French corporation that
is a wholly owned subsidiary of VBSA and the parent of Virbac ("Interlab").
Pursuant to the Merger Agreement Virbac received a $15.7 million cash infusion
("Cash Infusion") from VBSA through Interlab. Thereafter, Virbac was merged
("Merger") with and into AGNU, with AGNU being the surviving entity and Interlab
its controlling stockholder, and AGNU issued 12,580,918 shares of its Common
Stock (the "VBSA Shares") to Interlab.
AGNU agreed in the Merger Agreement to make and complete a tender offer
to repurchase up to 1,000,000 Shares, except for the VBSA Shares, which Interlab
and VBSA agreed not to tender, at a price of $3.00 per share. This Offer is
being made in compliance with the foregoing agreement. Accordingly, the Company
invites its Stockholders to tender Shares of its Common Stock, at a price, net
to the seller in cash, without interest thereon, of $3.00 per Share, upon the
terms and subject to the conditions set forth herein and in the related Letter
of Transmittal.
THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE
SECTION 13. If fewer than 1,000,000 Shares are tendered in the Offer, certain
Stockholders have agreed to tender Shares equal to the difference between
1,000,000 Shares and the amount actually tendered. See Section 11.
If more than 1,000,000 Shares have been validly tendered and not
withdrawn on or prior to the Expiration Date, the Company will purchase Shares
on a pro rata basis from all Stockholders who validly tender Shares. Tendering
Stockholders will not be obligated to pay brokerage commissions, solicitation
fees or, subject to the Instructions to the Letter of Transmittal, stock
transfer taxes on the purchase of Shares by the Company. The Company will pay
the expenses of the Information Agent and the Depositary incurred in connection
with the Offer. See Section 15. Any tendering Stockholder or other payee who
fails to complete and sign the substitute Form W-9 that is included in the
Letter of Transmittal may be subject to United States federal income tax backup
withholding equal to 31% of the gross proceeds payable to such Stockholder or
other payee pursuant to the Offer. See Section 5.
THE BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE OFFER. NEITHER THE
COMPANY NOR ITS BOARD OF DIRECTORS, HOWEVER, MAKES ANY RECOMMENDATION TO ANY
STOCKHOLDER AS TO WHETHER TO TENDER ALL OR ANY SHARES. EACH STOCKHOLDER MUST
MAKE HIS OR HER OWN DECISION AS TO WHETHER TO TENDER SHARES AND, IF SO , HOW
MANY SHARES TO TENDER. Directors, officers and employees of the Company who own
Shares may participate in the Offer on the same basis as the Company's other
Stockholders.
Exclusive of the 12,580,918 VBSA Shares, which pursuant to the Merger
Agreement will not be tendered in the Offer (see Section 8), the 1,000,000
Shares that the Company is offering to purchase pursuant to the Offer represent
approximately 11% of the Company's 21,968,197 issued and outstanding Shares as
of March 17, 1999.
THE SHARES ARE TRADED ON THE NASDAQ NATIONAL MARKET ("NNM"). THE SHARES
TRADE UNDER THE SYMBOL "VBAC". ON MARCH 17, 1999 THE CLOSING PRICE OF THE SHARES
ON THE NNM WAS $1.5653 PER SHARE. SEE SECTION 6. STOCKHOLDERS ARE URGED TO
OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
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.
8
<PAGE>
1. Number of Shares; Proration
Upon the terms and subject to the conditions described herein and in
the Letter of Transmittal, the Company will purchase, at a price of $3.00 per
Share, up to 1,000,000 Shares that are validly tendered and not properly
withdrawn on or prior to the Expiration Date in accordance with Section 4. The
later of 5:00 p.m., New York City time, on Monday, April 19, 1999, or the latest
time and date to which the Offer is extended pursuant to Section 12, is referred
to herein as the "Expiration Date." If the Offer is oversubscribed as described
below, only Shares tendered on or prior to the Expiration Date will be eligible
for proration. The proration period also expires on the Expiration Date.
The Offer is not conditioned on any minimum number of Shares being
tendered. The Offer is, however, subject to certain other conditions. See
Section 13. If fewer than 1,000,000 Shares are tendered in the Offer, certain
stockholders have agreed to tender Shares equal to the difference between
1,000,000 Shares and the amount actually tendered. See Section 11.
All Shares purchased pursuant to the Offer will be purchased at the
Purchase Price. All Shares not purchased pursuant to the Offer because of
proration will be returned to the tendering Stockholders at the Company's
expense as promptly as practicable following the Expiration Date.
Upon the terms and subject to the conditions of the Offer, if 1,000,000
or fewer Shares have been validly tendered and not withdrawn on or prior to the
Expiration Date, the Company will purchase all such Shares. Upon the terms and
subject to the conditions of the Offer, if more than 1,000,000 Shares have been
validly tendered and not withdrawn on or prior to the Expiration Date, the
Company will purchase all Shares validly tendered and not withdrawn on or prior
to the Expiration Date on a pro rata basis (with appropriate adjustments to
avoid purchases of fractional Shares). The Letter of Transmittal affords each
tendering Stockholder the opportunity to designate the order of priority in
which Shares tendered are to be purchased in the event of proration.
If proration of tendered Shares is required, the Company does not
expect that it will be able to announce the final proration factor or to
commence payment for any Shares purchased pursuant to the Offer until
approximately seven NNM trading days after the Expiration Date. Preliminary
results of proration will be announced by press release as promptly as
practicable after the Expiration Date. Holders of Shares may obtain such
preliminary information from the Information Agent.
The Company expressly reserves the right, in its sole discretion, at
any time or from time to time, to extend the period of time during which the
Offer is open by giving oral or written notice of such extension to the
Depositary and making a public announcement thereof. See Section 12. There can
be no assurance, however, that the Company will exercise its right to extend the
Offer.
For purposes of the Offer, a "business day" means any day other than a
Saturday, Sunday or federal holiday and consists of the time period from 12:01
a.m. through 12:00 midnight, New York City time.
Copies of this Offer to Purchase and the related Letter of Transmittal
are being mailed to record holders of Shares and will be furnished to brokers,
banks and similar persons whose names, or the names of whose nominees, appear on
the Company's 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.
ANY TENDERING STOCKHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY
AND SIGN THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL (OR, IN
THE CASE OF A NONCORPORATE FOREIGN STOCKHOLDER, A FORM W-8, WHICH IS OBTAINABLE
FROM THE DEPOSITARY) MAY BE SUBJECT TO A FEDERAL BACKUP WITHHOLDING TAX OF 31%
OF THE GROSS PROCEEDS TO BE PAID TO SUCH STOCKHOLDER OR OTHER PAYEE PURSUANT TO
THE OFFER. SEE INSTRUCTIONS 12 AND 13 OF THE LETTER OF TRANSMITTAL.
9
<PAGE>
2. Procedure for Tendering Shares
Proper Tender of Shares. For Shares to be validly tendered pursuant to
the Offer, either (i) the appropriate Letter of Transmittal (or a manually
signed facsimile thereof), properly completed and duly executed, with any
required signature guarantees 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 on or prior to the Expiration
Date and either (a) certificates representing tendered Shares must be received
by the Depositary at any one of those addresses prior to the Expiration Date or
(b) the Shares must be delivered pursuant to the procedures for book-entry
transfer set forth below and a Book-Entry Confirmation must be received by the
Depositary on or prior to the Expiration Date or (ii) the tendering Stockholder
must comply with the guaranteed delivery procedures set forth below. No
alternative, conditional or contingent tenders will be accepted. IF ANY OF THE
SHARES TENDERED ARE REGISTERED IN DIFFERENT NAMES ON DIFFERENT CERTIFICATES, IT
WILL BE NECESSARY TO COMPLETE, SIGN AND SUBMIT AS MANY SEPARATE LETTERS OF
TRANSMITTAL AS THERE ARE DIFFERENT REGISTRATIONS OF CERTIFICATES (OR RECEIPTS).
Book-Entry Transfer. The Depositary will establish an account with
respect to the Shares at The Depository Trust Company (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
Book-Entry Transfer Facility system may make book-entry delivery of Shares by
causing the applicable Book-Entry Transfer Facility to transfer the 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 the Shares may be effected through book-entry transfer into
the Depositary's account at the Book-Entry Transfer Facility, the appropriate
Letter of Transmittal (or a manually signed facsimile thereof), properly
completed and duly executed with any required signature guarantees and any other
required documents must, in any case, be transmitted to, and received by, the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date, or the tendering Stockholder must comply
with the guaranteed delivery procedures described below. The confirmation of a
book-entry transfer of Shares into the Depositary's account at a Book-Entry
Transfer Facility as described above is referred to as a "Book-Entry
Confirmation." Delivery of the Letter of Transmittal or other documents to a
Book-Entry Transfer Facility does not constitute delivery of the Letter of
Transmittal or such other documents to the Depositary.
Signature Guarantees and Method of Delivery. No signature guarantee is
required: (i) if the Letter of Transmittal is signed by the registered holder of
the Shares (which term, for purposes of this Section 2, shall include any
participant in a Book-Entry Transfer Facility whose name appears on a security
position listing as the owner of the Shares) tendered therewith and such holder
has not completed either the box entitled "Special Delivery Instructions" or the
box entitled "Special Payment Instructions" on the Letter of Transmittal or (ii)
if Shares are tendered for the account of 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 a bank, broker, dealer, credit
union, savings association or other entity (each of the foregoing constituting
an "Eligible Institution"), which is an "eligible guarantor institution," as
such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934,
as amended ("Exchange Act"). See Instruction 1 of the Letter of Transmittal. If
a certificate for Shares is registered in the name of a person other than the
person executing a Letter of Transmittal, or if payment is to be made, or Shares
not purchased or tendered are to be issued, to a person other than the
registered holder, then the certificate must be endorsed or accompanied by an
appropriate stock power, in either case, signed exactly as the name of the
registered holder appears on the certificate, with the signature guaranteed by
an Eligible Institution.
In all cases, Shares shall not be deemed validly tendered unless a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof) is 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.
The method of delivery of certificates for Shares, the Letter of
Transmittal and any other required documents is at the option and sole risk of
the tendering Stockholder and delivery will be deemed made only when actually
received by the Depositary. If
10
<PAGE>
delivery is made by mail, registered mail with return receipt requested,
properly insured, is recommended. In all cases, sufficient time should be
allowed to ensure timely delivery.
Notwithstanding any other provision of this Offer to Purchase, payment
for Shares accepted for payment pursuant to the Offer in all cases will be made
only after timely receipt by the Depositary of certificates for (or Book-Entry
Confirmation with respect to) the Shares, a Letter of Transmittal (or a manually
signed facsimile thereof), properly completed and duly executed with all
required signature guarantees and all other documents required by the Letter of
Transmittal (or, in the case of a book-entry transfer, an Agent's Message).
Backup Federal Income Tax Withholding. To prevent United States federal
income tax backup withholding equal to 31% of the gross payments made pursuant
to the Offer, each tendering Stockholder must provide the Depositary with such
Stockholder's correct taxpayer identification number and certain other
information by properly completing the substitute Form W-9 included in the
Letter of Transmittal. Foreign Stockholders must submit a properly completed
Form W-8 (which may be obtained from the Depositary) in order to prevent backup
withholding. In general, backup withholding does not apply to corporations or to
foreign Stockholders subject to 30% (or lower treaty rate) withholding on gross
payments received pursuant to the Offer. For a discussion of certain federal
income tax consequences to tendering Stockholders, see Section 5. Each
Stockholder is urged to consult with his or her own tax advisor regarding his,
her or its qualification for exemption from backup withholding and the procedure
for obtaining any applicable exemption. See Instructions 12 and 13 of the Letter
of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant
to the Offer and the stockholder's Share certificates are not immediately
available or cannot be delivered to the Depositary prior to the Expiration Date
(or the procedure for book-entry transfer cannot be completed on a timely basis)
or if time will not permit all required documents to reach the Depositary prior
to the Expiration Date, the Shares may nevertheless be tendered, provided that
all of the following conditions are satisfied:
(a) the tender is made by or through an Eligible Institution;
(b) the Depositary receives by hand, mail, overnight courier, telegram
or facsimile transmission, on or prior to the Expiration Date, a properly
completed and duly executed Notice of Guaranteed Delivery substantially in the
form the Company has provided with this Offer to Purchase, including (where
required) a signature guarantee by an Eligible Institution in the form set forth
in such Notice of Guaranteed Delivery; and
(c) the certificates for all tendered Shares, in proper form for
transfer (or confirmation of book-entry transfer of such Shares into the
Depositary's account at the Book-Entry Transfer Facility), together with a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof) and any required signature guarantees or other documents
required by the Letter of Transmittal, are received by the Depositary within
three Nasdaq trading days after the date of receipt by the Depositary of the
Notice of Guaranteed Delivery.
Company Stock Option Plans. The Company is not offering, as part of the
Offer, to purchase any options ("Options") outstanding under the Company's stock
option plans (the "Option Plans") and tenders of Options will not be accepted.
Holders of Options who wish to participate in the Offer must exercise their
Options and purchase Shares of the Company's Common Stock and then tender the
Shares pursuant to the Offer, provided that any exercise of an Option and tender
of Shares is in accordance with the terms of the Option Plans and the Options.
In no event are any Options to be delivered to the Depositary in connection with
a tender of Shares hereunder. An exercise of an Option cannot be revoked even if
Shares received upon the exercise and tendered in the Offer are not purchased in
the Offer for any reason.
Determination of Validity. All questions as to the form of documents
and the validity, eligibility (including time of receipt) and acceptance for
payment of any tender of Shares pursuant to any of the procedures described
above will be determined by the Company in its sole discretion, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any or all tenders of Shares determined not to
11
<PAGE>
be in proper form or the acceptance of or payment for which may, in the opinion
of counsel, be unlawful and reserves the absolute right to waive any defect or
irregularity in any tender of Shares. The Company also reserves the absolute
right to waive or amend any or all of the conditions of the Offer. The Company's
interpretation of the terms and conditions of the Offer (including the Letters
of Transmittal and the instructions thereto) will be final and binding on all
parties. 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 Company, 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.
Appointment as Proxy. By executing a Letter of Transmittal, a tendering
Stockholder irrevocably appoints designees of the Company as his
attorneys-in-fact and proxies, with full power of substitution, in the manner
set forth in the Letter of Transmittal, to the full extent of the Stockholder's
rights with respect to the Shares tendered by the Stockholder and purchased by
the Company and with respect to any and all other Shares or other securities
issued or issuable in respect of those Shares, on or after the date of the
Offer. All such powers of attorney and proxies will be considered coupled with
an interest in the tendered Shares. Such appointment will be effective when, and
only to the extent that, the Company accepts the Shares for payment. Upon
acceptance for payment, all prior powers of attorney and proxies given by the
Stockholder with respect to the Shares (and any other Shares or other securities
so issued in respect of such purchased Shares) will be revoked, without further
action, and no subsequent powers of attorney and proxies may be given (and, if
given, will not be deemed effective) by the Stockholder. The designees of the
Company will be empowered to exercise all voting and other rights of the
Stockholder with respect to such Shares (and any other Shares or securities so
issued in respect of such purchased Shares) as they in their sole discretion may
deem proper, including, without limitation, in respect of any annual or special
meeting of the Stockholders, or any adjournment or postponement of any such
meeting.
Rule 14e-4 Under the Exchange Act. It is a violation of Rule 14e-4
promulgated under the Exchange Act, for a person to tender Shares for his or her
own account unless the person so tendering (i) has a net long position equal to
or greater than the amount of (x) Shares tendered or (y) other securities
immediately convertible into, exercisable or exchangeable for the amount of
Shares tendered and will acquire such Shares for tender by conversion, exercise
or exchange of such other securities and (ii) will cause such Shares to be
delivered in accordance with the terms of the Offer. Rule 14e-4 provides a
similar restriction applicable to the tender on behalf of another person. The
tender of Shares pursuant to any one of the procedures described above will
constitute the tendering Stockholder's representations and warranty that (i)
such Stockholder has a net long position in the Shares being tendered within the
meaning of Rule 14e-4 promulgated under the Exchange Act, and (ii) the tender of
such Shares complies with Rule 14e-4. The Company's acceptance for payment of
Shares tendered pursuant to the Offer will constitute a binding agreement
between the tendering Stockholder and the Company based upon the terms and
subject to the conditions of the Offer. See the covenants, representations and
warranties made by a tendering Stockholder to the Company in the Letter of
Transmittal.
The Company reserves the absolute right to require that, in order for
Shares to be validly tendered, immediately upon the Company's acceptance for
payment of the Shares, the Company must be able to exercise full voting and
other rights with respect to the Shares, including voting at any meeting of
Stockholders then scheduled.
3. 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 Company will accept for payment (and thereby
purchase) and pay for Shares that are validly tendered and not properly
withdrawn on or prior to the Expiration Date, as soon as practicable after the
later of the following dates: (i) the Expiration Date and (ii) the date of
satisfaction or waiver of all the conditions to the Offer set forth in this
Offer to Purchase. Subject to the applicable rules of the Securities and
Exchange Commission ("Commission"), the Company expressly reserves the right to
delay acceptance for payment of, or payment for, Shares in order to comply, in
whole or in part, with any other applicable law, government regulation or
condition contained therein. See Sections 13 and 14.
12
<PAGE>
In all cases, payment for Shares purchased pursuant to the Offer will
be made only after timely receipt by the Depositary of (i) certificates for the
Shares (or a timely Book-Entry Confirmation, as defined in Section 2, with
respect to the Shares), (ii) the appropriate Letter(s) of Transmittal (or a
manually signed facsimile thereof), properly completed and duly executed with
all required signature guarantees or an Agent's Message (as defined below) in
connection with a book-entry transfer, and (iii) all other documents required by
the Letter of Transmittal. See Section 2.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility (as defined in Section 2) to and received by the Depositary
and forming part of a Book-Entry Confirmation, which states that (i) such
Book-Entry Transfer Facility has received an express acknowledgment from the
participant in such Book-Entry Transfer Facility tendering the Shares that are
the subject of such Book-Entry Confirmation, (ii) such participant has received
and agrees to be bound by the terms of the applicable Letter of Transmittal, and
(iii) the Company may enforce such agreement against such participant.
For purposes of the Offer, the Company will be deemed to have accepted
for payment (and thereby purchased) tendered Shares as, if, and when the Company
gives oral or written notice to the Depositary of the Company's acceptance of
such Shares for payment. In all cases, payment for Shares purchased pursuant to
the Offer will be made by deposit of the purchase price with the Depositary,
which will act as agent for the tendering Stockholders for the purpose of
receiving payment from the Company and transmitting payment to the tendering
Stockholders whose Shares shall have been accepted for payment. If, for any
reason, acceptance for payment of any Shares tendered pursuant to the Offer is
delayed, or the Company is unable to accept for payment Shares tendered pursuant
to the Offer, then, without prejudice to the Company's rights under Section 13,
the Depositary may, nevertheless, on behalf of the Company, retain the tendered
Shares, and such Shares may not be withdrawn, except to the extent that the
tendering Stockholders are entitled to withdrawal rights as described in Section
4 and as otherwise required by Rule 14e-1(c) under the Exchange Act. Under no
circumstances will interest accrue on the consideration to be paid for the
Shares by the Company, regardless of any delay in making such payment.
If any tendered Shares are not purchased for any reason or if
certificates are submitted for more Shares than are tendered, certificates for
the Shares not purchased or tendered will be returned pursuant to the
instructions of the tendering Stockholder without expense to the tendering
Stockholder (or, in the case of Shares delivered by book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility pursuant to the
procedures set forth in Section 2, the Shares will be credited to an account
maintained at the appropriate Book-Entry Transfer Facility) as promptly as
practicable following the expiration, termination or withdrawal of the Offer.
4. Withdrawal Rights
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in this Section 4. 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 Company as provided in this Offer to Purchase, may
also be withdrawn at any time after Monday, April 19, 1999. If the Company
extends the Offer, is delayed in its purchase of or payment for Shares, or is
unable to purchase or pay for Shares for any reason then, without prejudice to
the rights of the Company, tendered Shares may be retained by the Depositary on
behalf of the Company and may not be withdrawn, except to the extent that
tendering Stockholders are entitled to withdrawal rights as set forth in this
Section 4.
The reservation by the Company of the right to delay the acceptance or
purchase of or payment for Shares is subject to the provisions of Rule 14e-1(c)
under the Exchange Act, which requires the Company to pay the consideration
offered or to return Shares deposited by or on behalf of Stockholders promptly
after the termination or withdrawal of the Offer.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the persons 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 the Shares.
If certificates evidencing Shares have been delivered or
13
<PAGE>
otherwise identified to the Depositary then, prior to the release of the
certificates, the tendering Stockholder must also submit the serial numbers
shown on the particular certificates evidencing the Shares to be withdrawn, and
the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (except in the case of Shares tendered for the account of an
Eligible Institution). If Shares have been tendered pursuant to the procedure
for book-entry transfer set forth in Section 2, the notice of withdrawal must
specify the name and number of the account at the applicable Book-Entry Transfer
Facility to be credited with the withdrawn Shares. All questions as to the form
and validity (including time of receipt) of notices of withdrawal will be
determined by the Company, in its sole discretion, which determination shall be
final and binding on all parties. No withdrawal of Shares will be deemed to have
been made properly until all defects and irregularities have been cured or
waived. None of the Company, 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 failing to
give such notification.
Any Shares properly withdrawn will be deemed not validly tendered for
purposes of the Offer, but may be tendered at any subsequent time prior to the
Expiration Date by following any of the procedures described in Section 2 above.
5. Certain Federal Income Tax Consequences of the Offer
General. The following is a discussion of the material United States
federal income tax consequences to Stockholders with respect to a sale of Shares
pursuant to the Offer. The discussion is based upon the provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury regulations,
Internal Revenue Service ("IRS") rulings and judicial decisions, all in effect
as of the date hereof and all of which are subject to change (possibly with
retroactive effect) by subsequent legislative, judicial or administrative
action. The discussion does not address all aspects of United States federal
income taxation that may be relevant to a particular Stockholder in light of the
Stockholder's particular circumstances or to certain types of holders subject to
special treatment under the United States federal income tax laws (such as
certain financial institutions, tax-exempt organizations, life insurance
companies, dealers in securities or currencies, employee benefit plans or
Stockholders holding the Shares as part of a conversion transaction, as part of
a hedge or hedging transaction, or as a position in a straddle for tax
purposes). In addition, the discussion below does not consider the effect of any
foreign, state, local or other tax laws that may be applicable to particular
Stockholders. The discussion assumes that the Shares are held as "capital
assets" within the meaning of Section 1221 of the Code. The Company has neither
requested nor obtained a written opinion of counsel or a ruling from the IRS
with respect to the tax matters discussed below.
EACH STOCKHOLDER SHOULD CONSULT HIS OR HER OWN TAX ADVISOR AS TO THE
PARTICULAR UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO THAT STOCKHOLDER
TENDERING SHARES PURSUANT TO THE OFFER AND THE APPLICABILITY AND EFFECT OF ANY
STATE, LOCAL OR FOREIGN TAX LAWS AND RECENT CHANGES IN APPLICABLE TAX LAWS AND
ANY PROPOSED LEGISLATION.
Characterization of the Surrender of Shares Pursuant to the Offer. The
surrender of Shares by a Stockholder to the Company pursuant to the Offer will
be a taxable transaction for United States federal income tax purposes and may
also be a taxable transaction under applicable state, local and foreign tax
laws. The United States federal income tax consequences to a Stockholder may
vary depending upon the Stockholder's particular facts and circumstances. Under
Section 302 of the Code, the surrender of Shares by a Stockholder to the Company
pursuant to the Offer will be treated as a "sale or exchange" of such Shares for
United States federal income tax purposes (rather than as a distribution by the
Company with respect to the Shares held by the tendering Stockholder) if the
receipt of cash upon surrender (i) is "substantially disproportionate" with
respect to the Stockholder, (ii) results in a "complete redemption" of the
Stockholder's interest in the Company, or (iii) is "not essentially equivalent
to a dividend" with respect to the Stockholder (each as described below).
If any of the above three tests is satisfied, and the surrender of the
Shares is therefore treated as a "sale or exchange" of such Shares for United
States federal income tax purposes, the tendering Stockholder will recognize
gain or loss equal to the difference between the
14
<PAGE>
amount of cash received by the Stockholder and the Stockholder's tax basis in
the Shares surrendered pursuant to the Offer. Any such gain or loss will be
capital gain or loss, and will be long term capital gain or loss if the Shares
have been held for more than one year.
If none of the above three tests is satisfied, the tendering
Stockholder will be treated as having received a distribution by the Company
with respect to the Stockholder's Shares in an amount equal to the cash received
by the Stockholder pursuant to the Offer. The distribution will be treated as a
dividend taxable as ordinary income to the extent of the Company's current or
accumulated earnings and profits for tax purposes. The amount of the
distribution in excess of the Company's current or accumulated earnings and
profits will be treated as a return of the Stockholder's tax basis in the
Shares, and then as gain from the sale or exchange of the Shares. The tendering
Stockholder's basis in the Shares surrendered pursuant to the Offer generally
will be added to the Stockholder's basis in his or her remaining Shares, if any.
Constructive Ownership. In determining whether any of the three tests
under Section 302 of the Code is satisfied, Stockholders must take into account
not only the Shares that are actually owned by the Stockholder, but also Shares
that are constructively owned by the Stockholder within the meaning of Section
318 of the Code. Under Section 318 of the Code, a Stockholder may constructively
own Shares actually owned, and in some cases constructively owned, by certain
related individuals or entities and Shares that the Stockholder has the right to
acquire by exercise of an option or by conversion.
Proration. Contemporaneous dispositions or acquisitions of Shares by a
Stockholder or related individuals or entities may be deemed to be part of a
single integrated transaction and may be taken into account in determining
whether any of the three tests under Section 302 of the Code has been satisfied.
Each Stockholder should be aware that because proration may occur in the Offer,
even if all the Shares actually and constructively owned by a Stockholder are
tendered pursuant to the Offer, fewer than all of these Shares may be purchased
by the Company. Thus, proration may affect whether the surrender by a
Stockholder pursuant to the Offer will meet any of the three tests under Section
302 of the Code.
Section 302 Tests. The receipt of cash by a Stockholder will be
"substantially disproportionate" if the percentage of the outstanding Shares in
the Company actually and constructively owned by the Stockholder immediately
following the surrender of Shares pursuant to the Offer is less than 80% of the
percentage of the outstanding Shares actually and constructively owned by the
Stockholder immediately before the sale of Shares pursuant to the Offer.
Stockholders should consult their tax advisors with respect to the application
of the "substantially disproportionate" test to their particular situation.
The receipt of cash by a Stockholder will be a "complete redemption" if
either (i) the Stockholder owns no Shares in the Company either actually or
constructively immediately after the Shares are surrendered pursuant to the
Offer, or (ii) the Stockholder actually owns no Shares in the Company
immediately after the surrender of Shares pursuant to the Offer and, with
respect to Shares constructively owned by the Stockholder immediately after the
Offer, the Stockholder is eligible to waive (and effectively waives)
constructive ownership of all such Shares under procedures described in Section
302(c) of the Code.
Even if the receipt of cash by a Stockholder fails to satisfy the
"substantially disproportionate" test or the "complete redemption" test, a
Stockholder may nevertheless satisfy the "not essentially equivalent to a
dividend" test if the Stockholder's surrender of Shares pursuant to the Offer
results in a "meaningful reduction" in the Stockholder's interest in the
Company. Whether the receipt of cash by a Stockholder will be "not essentially
equivalent to a dividend" will depend upon the individual Stockholder's facts
and circumstances. The IRS has indicated in published rulings that even a small
reduction in the proportionate interest of a small minority Stockholder in a
publicly held corporation who exercises no control over corporate affairs may
constitute such a "meaningful reduction." Stockholders expecting to rely upon
the "not essentially equivalent to a dividend" test should consult their own tax
advisors as to its application in their particular situation.
Under certain circumstances, it may be possible for a tendering
Stockholder to satisfy one of the Section 302 tests by contemporaneously selling
or otherwise disposing of all or some of the Shares of the Company that are
actually or constructively owned by the
15
<PAGE>
Stockholder but that are not purchased pursuant to the Offer. Correspondingly, a
Stockholder may not be able to satisfy any of the Section 302 tests because of
contemporaneous acquisitions of Shares of the Company by the Stockholder or by a
related party whose stock is constructively owned by the Stockholder.
Stockholders should consult their tax advisors regarding the consequences of
such sales or acquisitions in their particular circumstances.
Corporate Stockholder Dividend Treatment. If a sale of Shares by a
corporate Stockholder is treated as a dividend, the corporate Stockholder may be
entitled to claim a deduction equal to 70% of the dividend under Section 243 of
the Code, subject to applicable limitations. Corporate Stockholders should,
however, consider the effect of Section 246(c) of the Code, which disallows the
70% dividends-received deduction with respect to stock that is held for 45 days
or less. For this purpose, the length of time a taxpayer is deemed to have held
stock may be reduced by periods during which the taxpayer's risk of loss with
respect to the stock is diminished by reason of the existence of certain options
or other transactions. Moreover, under Section 246A of the Code, if a corporate
Stockholder has incurred indebtedness directly attributable to an investment in
Shares, the 70% dividends-received deduction may be reduced.
In addition, amounts received by a corporate Stockholder pursuant to
the Offer that are treated as a dividend may constitute an "extraordinary
dividend" under Section 1059 of the Code. Generally, an "extraordinary dividend"
is a dividend that (i) equals or exceeds 10% of the Stockholder's basis in the
Shares (treating all dividends having ex-dividend dates within an 85-day period
as a single dividend) or (ii) exceeds 20% of the Stockholder's adjusted basis in
the Shares (treating all dividends having ex-dividend dates within a 365-day
period as a single dividend). Accordingly, if applicable, a corporate
Stockholder would be required under Section 1059(a) of the Code to reduce its
basis (but not below zero) in its Shares by the non-taxed portion of the
dividend (i.e., the portion of the dividend for which a deduction is allowed),
and if such portion exceeds the Stockholder's tax basis for its Shares, to treat
the excess as gain from the sale of such Shares in the year in which a sale or
disposition of the Shares occurs (which, in certain circumstances, may be the
year in which Shares are sold pursuant to the Offer).
Additional Tax Considerations. The distinction between long-term
capital gains and ordinary income is relevant because, in general, individuals
currently are subject to taxation at a reduced rate on their "net capital gain"
(i.e., the excess of net long-term capital gains over net short-term capital
losses) for the year.
Stockholders are urged to consult their own tax advisors regarding any
possible impact on their obligation to make estimated tax payments as a result
of the recognition of any capital gain (or the receipt of any ordinary income)
caused by the surrender of any Shares to the Company pursuant to the Offer.
Backup Federal Income Tax Withholding. See Sections 2 and 3 and
Instructions 12 and 13 of the Letter of Transmittal.
THE TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION
ONLY AND MAY NOT APPLY TO SHARES ACQUIRED IN CONNECTION WITH THE EXERCISE OF
STOCK OPTIONS OR PURSUANT TO OTHER COMPENSATION ARRANGEMENTS WITH THE COMPANY.
THE TAX CONSEQUENCES OF A SALE PURSUANT TO THE OFFER MAY VARY DEPENDING UPON,
AMONG OTHER THINGS, THE PARTICULAR CIRCUMSTANCES OF THE TENDERING STOCKHOLDER.
SEE ALSO THE DISCUSSION IN SECTION 8 FOR OTHER INFORMATION THAT MAY BE RELEVANT
IN DETERMINING THE TAX CONSEQUENCES OF A SALE PURSUANT TO THE OFFER. NO
INFORMATION IS PROVIDED HEREIN REGARDING THE STATE, LOCAL OR FOREIGN TAX
CONSEQUENCES OF THE TRANSACTION CONTEMPLATED BY THE OFFER. STOCKHOLDERS ARE
URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR FEDERAL,
STATE, LOCAL AND FOREIGN TAX CONSEQUENCES TO THEM OF TENDERING SHARES PURSUANT
TO THE OFFER AND THE EFFECT OF THE STOCK OWNERSHIP ATTRIBUTION RULES DESCRIBED
ABOVE.
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6. Price Range of the Shares; Dividends on the Shares
The principal trading market for the Company is the Nasdaq National
Market ("NNM"), and the Shares trade on the NNM under the symbol "VBAC." The
Company has not paid regular cash dividends on the Shares. The following table
sets forth, for the periods indicated, the high and low sale prices per Share
reported by the NNM Composite Reporting System.
<TABLE>
<CAPTION>
High Low
<S> <C> <C>
1997:
First Quarter......................................................................... $1.63 $1.13
Second Quarter........................................................................ 1.75 1.13
Third Quarter......................................................................... 1.38 1.06
Fourth Quarter........................................................................ 1.69 1.13
1998:
First Quarter......................................................................... $1.50 $1.06
Second Quarter........................................................................ 1.44 1.13
Third Quarter......................................................................... 1.31 1.00
Fourth Quarter........................................................................ 1.50 0.81
1999:
First Quarter ........................................................................ $1.38 $1.00
Period February 1, 1999 through March 17, 1999........................................ 1.56 1.12
</TABLE>
On March 17, 1999, the last full trading day before the commencement of
the Offer, the last reported sale price on the NNM was $1.563 per Share.
Stockholders are urged to obtain current market quotations for the Shares.
7. Effect of the Offer on the Market for Shares
The purchase of Shares pursuant to the Offer will reduce the number of
Shares that might otherwise trade publicly, which could adversely affect the
liquidity and market value of the remaining Shares held by Stockholders other
than the Company. The Company 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 or
whether such reduction would cause future market prices to be greater or less
than the Purchase Price. Based upon published guidelines of the NNM, the Company
believes that following its purchase of Shares pursuant to the Offer, the
Company's remaining Shares will continue to qualify to be quoted on the NNM.
8. Background and Purpose of the Offer
On March 5, 1999, the Merger of Virbac into AGNU was consummated. Under
the Merger Agreement, the Company agreed that, within 60 days after the
effective date of the Merger, it would make and complete a tender offer to
repurchase up to 1,000,000 shares of its issued and outstanding Common Stock at
a price of $3.00 per share. The Offer is being made by the Company in compliance
with this covenant. Following the Offer the repurchased Shares will be held in
treasury and Interlab will own 60% of the Company's outstanding Common Stock.
VBSA AND INTERLAB AGREED, PURSUANT TO THE TERMS OF THE MERGER AGREEMENT, NOT TO
TENDER THE VBSA SHARES IN THE OFFER.
At the Company's Annual Meeting on March 1, 1999, the Company's
Stockholders approved the Merger Agreement and amendments to the Company's
Certificate of Incorporation which, among other things, changed the Company's
name from Agri-Nutrition Group Limited to Virbac Corporation and increased its
authorized shares of Common Stock from 20,000,000 to 38,000,000 shares.
9. Certain Information Concerning AGNU and Virbac
The Company is the surviving entity after the Merger of Virbac into
AGNU. Set forth below is certain information about the businesses of both AGNU
and Virbac prior to the Merger.
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AGNU, a manufacturer and distributer of animal health and pet care
products, was organized as a Delaware corporation in 1993. In September 1993,
AGNU, through its subsidiary PM Resources, acquired the Health Industries
Business of Purina Mills, Inc., which formulates, manufactures and distributes
animal health products and, to a lesser extent, home, lawn and garden and other
products. In July 1994, AGNU completed an initial public offering, the net
proceeds of which were approximately $12.1 million. Effective March 31, 1995,
AGNU purchased substantially all of the net assets and business of Zema
Corporation , a formulator, manufacturer and supplier of health care and
grooming products to the pet industry. Effective August 31, 1995, AGNU purchased
substantially all of the net assets and business of St. JON Laboratories, Inc.,
a developer, manufacturer and marketer of oral hygiene, dermatological and
gastrointestinal products for dogs and cats. In September 1997, AGNU purchased
substantially all of the net assets and business of Mardel Laboratories, Inc.
("Mardel"). Mardel is a developer, manufacturer and marketer of high quality
care products to the pet industry with expertise extending to fresh water and
marine fish, birds, dogs, cats, small animals and pond accessories.
AGNU historically reported certain financial information for two
segments ingredients and specialty products. Ingredients consisted of feed
products that were purchased or blended by AGNU and distributed for Purina.
Specialty products consist of all other products formulated, manufactured and
distributed by AGNU to various customers, including Purina. Included in the
specialty products segment are sales of private label and branded products for
which AGNU manufactures goods using registrations and/or formulas owned by AGNU,
and sales of products manufactured under contract for which AGNU manufactures
products using the customers' registrations and/or formulas.
Given the acquisitions of businesses with branded, consumer-targeted
products and the continued emphasis on growth of the specialty product segment,
the significance of the ingredients segment had decreased in fiscal 1996 and
1997. Management expected this trend to continue in the future. In June 1997,
AGNU discontinued the distribution of ingredients to Purina. In July 1997, AGNU
distributed all of its remaining ingredients inventories and discontinued
operations in its ingredients segment. This segment is accounted for as
discontinued operations in accordance with Accounting Principles Board Opinion
No. 30, "Reporting the Results of Operations." Accordingly, AGNU has reported
the ingredients segment as discontinued operations and the consolidated
financial statements have been reclassified to report separately the financial
position and operating results of the segment. AGNU's consolidated operating
results for the year ended October 31, 1997 have been restated to reflect AGNU's
continuing operations related to its specialty products business. There were no
activities from discontinued operations in fiscal year 1998.
On March 5, 1999, AGNU merged with Virbac, which was incorporated as a
Delaware corporation on February 10, 1984. In 1987, Virbac purchased Allerderm,
Inc. ("Allerderm"), which, at the time, was the world's leading U.S. marketer of
veterinary dermatological products. In 1989, Virbac purchased Carson Chemicals
in New Castle, Indiana, a manufacturer of pesticide products for use with
companion animals. In 1989, Virbac formed Francodex Laboratories, Inc.
("Francodex"), a wholly owned subsidiary, to produce over-the-counter grooming
aids and stain and odor removers. Francodex began marketing products in 1991. In
January 1994, Virbac acquired A & I Laboratories in Arlington, Texas, the
manufacturing company from which Virbac previously purchased most of its
dermatologic products. In 1995, in order to combine its manufacturing, marketing
and warehousing operations, Virbac completed construction of a manufacturing and
laboratory facility, adding 58,000 square-feet to its 60,000 square-foot office
and warehouse facility in Fort Worth, Texas. Virbac then relocated its
dermatologic products manufacturing from Arlington to the Fort Worth facility.
Virbac is one of the leading manufacturers of dermatological products
for companion animals. Virbac's Allerderm(R) line of products treats a wide
range of dermatological problems, including itching and skin and ear
infections--the primary reasons for consulting a veterinarian. The Allerderm(R)
line of products is specially adapted for the characteristics of dog and cat
skin and consists of approximately 30 products.
Summary Historical and Unaudited Pro Forma Combined Financial Data. Set
forth below are summary historical and unaudited pro forma combined financial
data and
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<PAGE>
unaudited comparative per share data of AGNU and Virbac excerpted from the Proxy
Statement filed with the Commission in connection with the Company's March 1,
1999 Annual Meeting of Stockholders ("Proxy Statement"). Such Proxy Statement
and other documents are available for inspection and copies are obtainable in
the manner set forth below under "Additional Available Information." The summary
historical financial data and unaudited historical comparative per share data
are based upon the respective historical financial statements of AGNU and
Virbac, including the notes thereto, included in the Proxy Statement, and should
be read in conjunction therewith. The summary unaudited pro forma combined
financial data and the unaudited pro forma comparative per share data are
presented for illustrative purposes only and are not necessarily indicative of
the financial position or results of operations that would have been reported
had the Merger been in effect during the periods presented or that may be
reported in the future. The summary unaudited pro forma combined financial data
should be read in conjunction with the unaudited pro forma combined financial
data, including the notes thereto, appearing in the Proxy Statement.
19
<PAGE>
Agri-Nutrition Group Limited
Summary Financial Data
<TABLE>
<CAPTION>
Year Ended October 31
-----------------------------------------------------------
1996 1997 1998
------------------- ------------------ -----------------
<S> <C> <C> <C>
Statement of Operations:
Net Sales.................................................. $28,661,307 $ 31,051,537 $ 32,944,020
Operating income (loss) from continuing
operations............................................ 47,399 978,481 (42,894)
Income (loss) from continuing operations................... (241,320) 118,671 (662,832)
Income from discontinued operations........................ 113,900 14,659 -
Net income (loss).......................................... (127,420) 133,330 (662,832)
Basic earnings (loss) per share:
Continuing operations................................. (0.03) 0.01 (.07)
Discontinued operations............................... 0.01 - -
Net income............................................ (0.02) 0.01 (.07)
Diluted earnings (loss) per share:
Continuing operations................................. (0.03) 0.01 (.07)
Discontinued operations............................... 0.01 - -
Net income............................................ (0.02) 0.01 (.07)
Weighted average number of shares outstanding:
Basic................................................. 8,397,686 8,483,897 9,309,184
Diluted............................................... 8,397,686 8,699,914 9,309,184
</TABLE>
<TABLE>
<CAPTION>
October 31,
1998
--------------
<S> <C>
Balance Sheet Data:
Cash.......................................................................................... $ 97,971
Working capital............................................................................... 9,263,115
Total assets.................................................................................. 28,042,588
Current portion of long-term debt............................................................. 1,209,912
Long-term debt................................................................................ 9,114,226
Stockholders' equity.......................................................................... 14,884,813
</TABLE>
20
<PAGE>
Virbac, Inc.
Summary Financial Data
<TABLE>
<CAPTION>
Year Ended December 31
---------------------------------------------------------
1996 1997 1998
------------------- --------------- -----------------
<S> <C> <C> <C>
Statement of Operations:
Net revenues............................................... $17,493,683 $16,235,284 $15,051,090
Loss from operations....................................... (889,354) (730,820) (1,238,523)
Net loss................................................... (1,387,248) (1,255,207) (1,821,386)
Net loss per common and common
equivalent share..................................... (.17) (.15) (.22)
Weighted average number of common and
common equivalent shares outstanding.................. 8,386,445 8,399,810 8,399,810
</TABLE>
<TABLE>
<CAPTION>
December 31,
1998
-------------
<S> <C>
Balance Sheet Data:
Cash.......................................................................................... $ 412,378
Working capital............................................................................... (854,656)
Total assets.................................................................................. 12,680,651
Current portion of long-term debt/advance
from Parent.............................................................................. 5,200,000
Long-term debt (less current maturities)...................................................... 4,000,000
Stockholders' equity.......................................................................... 1,890,700
</TABLE>
21
<PAGE>
Agri-Nutrition Group Limited and Virbac, Inc.
Summary Unaudited Pro Forma Combined Financial Data
<TABLE>
<CAPTION>
Year Ended
December 31,
1998
-------------
<S> <C>
Statement of Operations:
Net Sales.................................................................................. $ 47,995,110
Operating loss............................................................................. (1,197,295)
Loss from continuing operations............................................................ (1,687,928)
Loss from continuing operations per share:
Basic...................................................................................... (.08)
Diluted ................................................................................... (.08)
Weighted average shares outstanding:
Basic...................................................................................... 20,890,103
Diluted.................................................................................... 20,890,103
December 31,
1998
--------------
Balance Sheet Data:
Cash....................................................................................... $ 97,971
Working capital............................................................................ 11,742,564
Total assets............................................................................... 38,078,013
Current portion of long-term debt.......................................................... 1,209,912
Long-term debt............................................................................. 5,414,226
Stockholders' equity....................................................................... 26,236,287
</TABLE>
Unaudited Comparative Per Share Data
<TABLE>
<CAPTION>
Virbac
AGNU Equivalent
Pro Forma Pro Forma
AGNU Virbac Combined Combined
--------- ---------- ----------- -------------
<S> <C> <C> <C> <C>
Diluted loss per share:
Year ended December 31, 1998........... $(.07)(1) $(0.22) $(0.08) $(0.12)(2)
Dividends per share......................... - - - -
Book value per share as of:
December 31, 1998...................... 1.59 (1) .23 1.19 1.79 (2)
</TABLE>
- -------------------
(1) Amounts are as of and for the fiscal year ended October 31, 1998.
(2) Amounts reflect AGNU Pro Forma Combined amounts multiplied by the 1.5
exchange ratio.
22
<PAGE>
Agri-Nutrition Group Limited
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Pro Forma
Year Ended
Fiscal Year Ended October 31, December 31,
1997 1998 1998 (1)
--------- ------------ -------------
<S> <C> <C> <C>
Pre-Tax Income (Loss) From
Continuing Operations $ 192,999 $ (1,077,775) $ (1,687,928)
--------- ------------ -------------
Fixed Charges:
- ---------------------------------------------------------
Interest Expense 638,599 787,727 473,227
Operating Rentals (2) 134,000 146,000 159,000
--------- ------------ -------------
Fixed Charges 772,599 933,727 632,227
--------- ------------ -------------
Earnings Adjusted for Fixed Charges $ 965,598 $ (144,048) $ (1,055,701)
========= ============ =============
Ratio of Earnings to Fixed Charges 1.25 (3) (4)
</TABLE>
(1) Amounts are pro forma for the effects of the Merger, the Cash Infusion and
the Offer as described in the Agri-Nutrition Proxy Statement.
(2) Amounts are based on one-third of rentals under operating leases.
(3) As a result of the loss incurred in the fiscal year ended October 31, 1998,
the Company was unable to fully cover the indicated fixed charges. Earnings
did not cover fixed charges by $1,077,775 in fiscal year 1998.
(4) As a result of the pro forma loss incurred in the year ended December 31,
1998, the Company was unable to fully cover the indicated fixed charges.
Pro forma earnings did not cover fixed charges by $1,687,928 in 1998.
23
<PAGE>
Post-Merger Unaudited Pro Forma Financial Data
The following unaudited pro forma financial information should be
evaluated in conjunction with the historical financial statements and other
information regarding the Company contained in the Proxy Statement. In light of
the foregoing factors, holders of Shares are cautioned not to place undue or
significant reliance thereon.
The following Unaudited Pro Forma Condensed Combined Balance sheet has
been prepared based on the historical balance sheets of AGNU as of October 31,
1998 and Virbac as of December 31, 1998, as adjusted to reflect the effects of
the Merger, the Cash Infusion and the Offer (the "Pro Forma Transactions") as if
they had occurred on December 31, 1998. The Unaudited Pro Forma Combined
Statement of Operations has been prepared based on the historical fiscal 1998
statements of operations of AGNU and Virbac, adjusted to reflect the Pro Forma
Transactions as if they had occurred on January 1, 1998. For purposes of the pro
formas, the Pro Forma Transactions were assumed to consist of the following: (i)
immediately prior to the Merger, Virbac receives a $15.7 million Cash Infusion
from VBSA; (ii) AGNU acquires 100% of Virbac's common stock in exchange for
12,580,919 newly issued shares of the Company's Common Stock; and (iii) the
Company uses $3.0 million of the Cash Infusion in order to effect the Offer. The
remainder of the Cash Infusion will be used to pay approximately $0.2 million of
Virbac's expenses related to the Merger, to reduce Virbac's pre-Merger debt to
not more than the amount of pre-Merger cash on Virbac's balance sheet and to
provide approximately $3.7 million for working capital requirements. Because
VBSA received 60% of the voting equity of the Company, Virbac is considered the
acquiror for financial statement purposes. Accordingly, the Merger will be
accounted for as a reverse purchase of the Company by Virbac using the purchase
method. The Pro Forma Transactions are described in further detail in the Proxy
Statement.
If during the period ending on the second anniversary of the Merger,
the closing sale price of the Company's Common Stock has not reached $3.00 per
share for 40 consecutive trading days, the Company will conduct a second tender
offer, the Contingent Tender Offer, by publicly offering to repurchase up to
1,395,000 of the Company's outstanding Common Stock at $3.00 per share. The
repurchase of shares will be accounted for as a purchase of treasury shares. The
Contingent Tender Offer will be funded through VBSA's purchase of 1,395,000
newly issued shares at $3.00 per share. The purchase of shares by VBSA will be
accounted for by the Company as the issuance of additional shares at $3.00 per
share. The Company's results of operations, net cash flows, and financial
position/stockholders' equity will not be affected by the Contingent Tender
Offer and the issuance of new shares to VBSA, as the two transactions are
dependent on and offset each other.
The Unaudited Pro Forma Condensed Combined Balance Sheet and Statement
of Operations do not purport to represent (i) the actual financial position or
results of operations, had the Pro Forma Transactions occurred on the dates
assumed, or (ii) the financial position or results of operations to be expected
in the future. They do not reflect any estimate of cost savings or other
efficiencies that may be achieved from the integration of AGNU and Virbac.
Management believes that the assumptions used in preparing the Unaudited Pro
Forma Condensed Combined Balance Sheet and Statement of Operations provide a
reasonable basis for presenting all of the significant effects of the Pro Forma
Transactions, that the pro forma adjustments give appropriate effect to those
assumptions, and that the pro forma adjustments are properly applied in the
Unaudited Pro Forma Combined Condensed Balance Sheet and Statement of
Operations.
The Unaudited Pro Forma Condensed Combined Balance Sheet and Statement
of Operations and the accompanying notes should be read in conjunction with the
historical financial statements of AGNU and Virbac, including the notes thereto,
and the other financial information pertaining to AGNU and Virbac, including the
information set forth under "Selected Financial Data of AGNU," "AGNU
Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Selected Financial Data of Virbac" and "Virbac Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
included in the Proxy Statement.
24
<PAGE>
Unaudited Pro Forma Condensed Combined Balance Sheet Data
<TABLE>
<CAPTION>
Virbac
AGNU December 31, Pro Forma Pro Forma
October 31, 1998 1998 Adjustments Combined
---------------- -------------- --------------------- -------------
<S> <C> <C> <C> <C> <C>
Assets
Cash.......................................... $ 97,971 $ 412,378 $ 15,693,622 (a) $ 97,971
(12,900,000) (a)
(3,000,000) (e)
(206,000) (a)
Accounts receivable, net...................... 4,812,842 1,321,573 6,134,415
Inventories................................... 7,150,042 3,355,504 10,505,546
Prepaid expenses.............................. 1,245,809 845,840 (659,517) (b) 1,432,132
------------- ----------- ------------ -------------
13,306,664 5,935,295 (1,071,895) 18,170,064
Property, plant and equipment, net............ 5,520,798 4,904,520 4,300,000 (b) 14,725,318
Goodwill/intangible........................... 8,745,753 1,804,885 (7,930,705) (b) 4,677,307
2,057,374 (b)
Other assets.................................. 469,373 35,951 505,324
------------- ----------- ------------ -------------
$ 28,042,588 $12,680,651 $ (2,645,226) $ 38,078,013
============= =========== ============ =============
Liabilities
Current portion of long-term debt............. $ 1,209,912 $ 3,200,000 $ (3,200,000) (a) $ 1,209,912
Note payable to Virbac S.A.................... 2,000,000 (2,000,000) (a)
Accounts payable.............................. 1,562,652 766,211 1,000,000 (d) 3,122,863
(206,000) (a)
Accrued expenses.............................. 1,270,985 823,740 2,094,725
------------- ----------- ------------ -------------
4,043,549 6,789,951 (4,406,000) 6,427,500
Long-term debt and notes payable.............. 9,114,226 4,000,000 (3,700,000) (a) 5,414,226
(4,000,000) (a)
Stockholders' equity
Common stock.................................. 93,873 8,399,810 (8,399,810) (c) 219,682
127,109 (d)
(1,300) (f)
Additional paid-in capital.................... 16,025,620 10,452 15,693,622 (a) 35,536,167
(16,025,620) (b)
11,606,990 (d)
8,399,810 (c)
(174,707) (f)
Accumulated earnings (deficit)................ (1,058,673) (6,519,562) 1,058,673 (b) (6,519,562)
Cost of common stock in treasury.............. (176,007) -- (3,000,000) (e) (3,000,000)
176,007 (f)
------------- ----------- ------------ -------------
$ 28,042,588 $12,680,651 $ (2,645,226) $ 38,078,013
============= =========== ============ =============
</TABLE>
25
<PAGE>
(a) Adjustments to reflect the Cash Infusion and the application thereof. On a
pro forma basis, the Cash Infusion at December 31, 1998 would have totaled
$15,693,622. Of this amount, $3,000,000 would have been used to fund the
Offer (see Note (e) below), $206,400 would have been used to pay a portion
of Virbac's transaction expenses, and the remainder of $12,487,622, along
with Virbac's cash on hand of $412,378, would have been used to repay
Virbac's debt plus accrued interest. Accordingly, the debt to be repaid for
pro forma balance sheet purposes totals $12,900,000. Debt instruments to be
repaid include the following:
<TABLE>
<CAPTION>
<S> <C>
Virbac:
Note payable/Revolving credit with financial institution................. $ 7,200,000
Notes payable to Virbac S.A............................................. 2,000,000
AGNU:
Revolving credit facility ........................................... 3,700,000
-------------
$ 12,900,000
</TABLE>
(b) Adjustments to eliminate AGNU's stockholders' equity, eliminate historical
pre-merger AGNU goodwill and reflect the estimated fair value of AGNU's
assets and liabilities. AGNU's property, plant and equipment is expected to
be adjusted to fair value, which exceeds book value by $4,300,000. The
write-up is attributable solely to land and buildings. The fair value of
land and buildings was determined on the basis of recent appraisals.
Management believes that the fair value of AGNU's machinery and equipment
approximates pre-Merger historical net book value. Accordingly, the
pre-Merger historical net book value of machinery and equipment has not
been adjusted in the unaudited pro forma financial information. Management
is evaluating whether to obtain appraisals to determine the fair value of
AGNU's machinery and equipment as of the effective time of the Merger and
any write-up or write-down will be included in purchase accounting (i.e. an
adjustment of goodwill). Estimated useful lives are 30 years for buildings
and 8-12 years for machinery and equipment. Estimated goodwill of
$2,057,374 from the Merger will be amortized over its expected useful life
of 20 years. Historical, pre-Merger deferred tax assets of AGNU of $659,517
have also been eliminated (See Note (d) to the Unaudited Pro Forma Combined
Statement of Operations--1998). The allocation of fair value is preliminary
and may change upon the completion of the final valuation of the net assets
acquired.
(c) Pursuant to the Merger Agreement, AGNU issued 12,580,919 shares of Common
Stock to Interlab and canceled its existing treasury stock. At October 31,
1998 there were 9,387,279 shares of Common Stock outstanding, of which
129,961 were held in treasury. Therefore, for purposes of the unaudited pro
forma combined balance sheet, 21,968,198 shares of AGNU will be
outstanding. Since the par value of the shares is one cent per share, the
pro forma Common Stock par value is $219,682. The $8,399,810 of historical
par value of Virbac stock is reclassified as additional paid-in capital.
(d) Because the Merger will be accounted for as a reverse acquisition and the
stockholder of Virbac, which is treated as the acquiror for accounting
purposes, is receiving the VBSA Shares, the fair market value of AGNU's
Common Stock outstanding for a reasonable period of time before and after
the announcement of the Merger determines the purchase price for accounting
purposes. For purposes of the pro forma financial statements, the purchase
price for AGNU consists of the following:
Fair market value of AGNU Common Stock (9,387,279 shares
at $1.25 per share).........................................$ 11,734,099
Direct costs of the acquisition................................ 1,000,000
------------
Total purchase price...........................................$ 12,734,099
============
The estimated fair market value of AGNU Common Stock of $1.25 per share
was estimated based on the trading range of AGNU's Common Stock. The
number of shares of AGNU Common Stock outstanding to which the price
per share is applied is based on AGNU Common Stock outstanding prior to
the issuance of Shares to Virbac under the Merger Agreement as
described in Note (c) above.
(e) Adjustments to reflect the Offer for Shares at $3.00 per share.
(f) Adjustments to reflect the cancellation of stock held in treasury by AGNU
pursuant to the Merger.
26
<PAGE>
Unaudited Pro Forma Combined Statement of Operations - 1998
<TABLE>
<CAPTION>
AGNU Virbac
For the For the
year ended year ended
October 31, December 31, Pro forma Pro forma
1998 1998 Adjustments Combined
----------- ------------ ----------------- ------------
<S> <C> <C> <C> <C>
Net sales................................. $32,944,020 $ 15,051,090 $ -- $ 47,995,110
Cost of sales............................. 24,008,395 5,564,757 -- 29,573,152
----------- ------------ ----------------- ------------
Gross profit.............................. 8,935,625 9,486,333 -- 18,421,958
(171,122) (b)
Operating expenses........................ 8,978,519 10,724,856 87,000 (a) 19,619,253
----------- ------------ ----------------- ------------
Operating income (loss)................... (42,894) (1,238,523) 84,122 (1,197,295)
Interest expense.......................... 787,727 582,611 (897,111) (c) 473,227
Other income (expenses)................... (247,154) (252) 230,000 (e) (17,406)
----------- ------------ ----------------- ------------
Income (loss) before taxes................ (1,077,775) (1,821,386) 1,211,233 (1,687,928)
Income tax expense (benefit).............. (414,943) -- 414,943 (d) --
----------- ------------ ----------------- ------------
Income (loss) from continuing
operations............................. $ (662,832) $ (1,821,386) $ 796,290 $ (1,687,928)
=========== ============ ================= ============
Loss from continuing
operations per share
- Basic $ (.07) (.22) $ (.08)
- Diluted (.07) (.22) (.08)
Basic shares outstanding.................. 9,309,184 8,399,810 20,890,103(f)
Diluted shares outstanding................ 9,309,184 8,399,810 20,890,103(f)
</TABLE>
(a) Operating expense has been adjusted to reflect the increase in depreciation
related to the write-up of property, plant and equipment. The write-up is
primarily attributable to land (write-up of $1,700,000) and buildings
(write-up of $2,600,000). Land is not depreciated while buildings are
depreciated over a 30-year life.
(b) The decrease in the amortization of goodwill is attributable to the
reduction in goodwill as a result of the Merger. Goodwill is being
amortized over 20 years, or $102,869 of amortization expense per year for
goodwill resulting from the Merger. Amortization expense reflected in
AGNU's pre-Merger fiscal 1998 operations was $273,991; as a result, the pro
forma adjustment is a $171,122 reduction in goodwill amortization.
(c) Reductions in interest expense reflect the application of net proceeds of
the Cash Infusion to repay outstanding debt. The Cash Infusion would have
been $14,871,953 had the Merger occurred on January 1, 1998. Of this
amount, $3,000,000 would have been used to fund the Offer, $206,400 would
have been used to pay a portion of Virbac's transaction expenses, and the
remainder of $11,665,953, along with Virbac's cash on hand of $84,047,
would have been used to repay Virbac's debt. Accordingly, the debt to be
repaid for purposes of the pro forma statement of operations totaled
$11,750,000. Debt instruments to be repaid with the proceeds of the Cash
Infusion include the following:
27
<PAGE>
Interest Expense
Reduction
Year Ended
Debt to be Repaid December 31, 1998
----------------- -----------------
Virbac:
Eliminate interest expense
recorded by Virbac............. $ 8,050,000 $ 582,611
AGNU:
Revolving credit facility
(8.5% interest rate............ 3,700,000 314,500
------------- ---------
$ 11,750,000 $ 897,111
============= =========
(d) Income tax expense (benefit) recorded by AGNU has been eliminated as on
a pro forma basis surviving corporation would have recorded a net loss
in both periods presented. For purposes of the unaudited pro forma
combined statement of operations presented, a full valuation allowance
is recorded relative to the pro forma combined deferred income tax
benefits, given the companies' historical results of operations.
(e) Expenses of approximately $230,000 relative to the Merger and charged
to AGNU's fiscal 1998 results of operations have been eliminated as a
pro forma adjustment to loss from continuing operations.
(f) Common shares outstanding on a pro forma basis represent AGNU's
weighted average shares outstanding for 1998 plus the 12,580,919 shares
issued to Virbac minus the 1,000,000 shares repurchased in the Offer.
As required by Statement of Financial Accounting Standards No. 128, the
impact of outstanding stock options and the additional shares to be
issued to Virbac in the event these options are exercised has not been
included in the determination of per share amounts as such an impact
would be anti-dilutive and reduce the net loss per share.
Additional Available Information. The Company is subject to the
informational filing requirements of the Exchange Act. In accordance with the
Exchange Act, the Company files periodic reports, proxy statements and other
information with the Commission relating to its business, financial condition
and other matters. The Company is required to disclose in such proxy statements
certain information, as of particular dates, concerning the Company's directors
and officers, their remuneration, stock options granted to them, the principal
holders of the Company's securities and any material interest of those persons
in transactions with the Company. Such reports, proxy statements and other
information may be inspected at the Commission's office at 450 Fifth Street,
N.W., Washington, D.C. 20549, and also should be available for inspection and
copying at the regional offices of the Commission located at Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and 7 World Trade
Center, Suite 1300, New York, New York 10048. Copies may be obtained upon
payment of the Commission's prescribed fees by writing to its principal office
at 450 Fifth Street, N.W., Washington, D.C. 20549, or through the Commission's
Website (http://www.sec.gov).
Stockholders who desire to receive additional copies of the Proxy
Statement may call Leslie Sisk, Administrative Assistant to the President of the
Company, at (800) 338-3659 or write or call the Information Agent at their
address and telephone number set forth on the back cover of this Offer to
Purchase.
10. Source and Amount of Funds
The aggregate amount of funds required by the Company to pay the
aggregate purchase price to be paid pursuant to the Offer is $3,000,000. These
funds were provided to the Company as part of the Cash Infusion made by Interlab
to Virbac prior to the Merger.
11. Interests of Directors and Officers; Transactions and
Arrangements Concerning Shares
On February 8, 1999, in conjunction with the Merger Agreement, VBSA and
persons then holding approximately 32% of AGNU's outstanding Common Stock (the
"Principal Stockholders") entered into a stockholders' agreement (the
"Stockholders' Agreement"), pursuant to which, among other things, the Principal
Stockholders agreed, subject to certain limitations, (i) to vote all the shares
of Common Stock held by them for approval of the Merger and (ii) if fewer than
1,000,000 Shares are tendered by Stockholders in the Offer, to tender Shares
equal to the difference between 1,000,000 Shares and the amount actually
tendered.
The Principal Stockholders include W.M. Jones, Jr., Robert W. Schlutz and
Robert E. Horman, former directors of AGNU; Durvet/PMR, L.P.; Bruce G. Baker, a
Vice President and director of the Company; Robert J. Elfanbaum, Vice President
and Chief Financial Officer of the Company; and Alec L. Poitevint, II, a
director of the Company.
Based upon the Company's records and upon information provided to the
Company by its directors,
28
<PAGE>
executive officers, associates and subsidiaries, neither the Company nor, to the
best of the Company's knowledge, any associates or subsidiaries or persons
controlling the Company, any directors or executive officers of the Company or
any of its subsidiaries, or any associates or subsidiaries of any of the
foregoing, has effected any transactions in the Shares (other than the Merger)
during the 40 business days prior to the date hereof.
Except for outstanding options to purchase Shares granted from time to
time over recent years pursuant to the Option Plans or as otherwise set forth in
this Offer to Purchase, neither the Company nor, to the best of the Company's
knowledge, any person controlling the Company or any of its directors or
executive officers, is a party to any contract, arrangement, understanding or
relationship (other than the Stockholders' Agreement) with any other person
relating, directly or indirectly, to the Offer with respect to any securities of
the Company (including, but not limited to, any contract, arrangement,
understanding or relationship concerning the transfer or the voting of any such
securities, joint ventures, loan or option arrangements, puts or calls,
guarantees of loans, guarantees against loss or the giving or withholding of
proxies, consents or authorizations).
12. Extension of Tender Period; Termination; Amendments
The Company expressly reserves the right, in its sole discretion and at
any time or from time to time, to extend the period of time during which the
Offer is open by giving oral or written notice of such extension to the
Depositary and making a public announcement thereof. There can be no assurance,
however, that the Company will exercise its right to extend the Offer. During
any such extension, all Shares previously tendered will remain subject to the
Offer, except to the extent that such Shares may be withdrawn as set forth in
Section 4. The Company also expressly reserves the right, in its sole
discretion, (i) to terminate the Offer and not accept for payment any Shares not
previously accepted for payment or, subject to Rule 13e-4(f)(5) under the
Exchange Act, which requires the Company either to pay the consideration offered
or to return the Shares tendered promptly after the termination or withdrawal of
the Offer, to postpone payment for Shares upon the occurrence of any of the
conditions specified in Section 13 hereof, by giving oral or written notice of
such termination to the Depositary and making a public announcement thereof and
(ii) at any time, or from time to time, to amend the Offer in any respect.
Amendments to the Offer may be effected by public announcement. Without limiting
the manner in which the Company may choose to make public announcement of any
extension, termination or amendment, the Company shall have no obligation
(except as otherwise required by applicable law) to publish, advertise or
otherwise communicate any such public announcement, other than by making a
release to the Dow Jones News Service, except in the case of an announcement of
an extension of the Offer, in which case the Company shall have no obligation to
publish, advertise or otherwise communicate such announcement other than by
issuing a notice of such extension by press release or other public
announcement, which notice shall be issued no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date. Material changes to information previously provided to holders of the
Shares in this Offer or in documents furnished subsequent thereto will be
disseminated to holders of Shares in compliance with Rule 13e-4(e)(2)
promulgated by the Commission under the Exchange Act.
If the Company materially changes the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, the Company will extend the Offer to the extent required by Rules
13e-4(d)(2) and 13e-4(e)(2) under the Exchange Act. Those rules require that the
minimum period during which an offer must remain open following material changes
in the terms of the offer or information concerning the offer (other than a
change in price, change in dealer's soliciting fee or change in percentage of
securities sought) will depend on the facts and circumstances, including the
relative materiality of such terms or information. In a published release, the
Commission has stated that in its view, an offer should remain open for a
minimum of five business days from the date that notice of such a material
change is first published, sent or given. The Offer will continue or be extended
for at least ten business days from the time the Company publishes, sends or
gives notice to Stockholders that it will increase or decrease the percentage of
the common stock to be purchased pursuant to the Offer, the consideration paid
for the purchased shares, or the amount of the Information Agent's soliciting
fee.
13. Certain Conditions of the Offer
Notwithstanding any other provision of the Offer, the Company will not
be required to accept for payment or pay for any Shares tendered, and may
terminate or amend and may postpone (subject to the requirements of the Exchange
Act for prompt payment for or return of Shares tendered) the acceptance for
payment of Shares tendered, if at any time after March 18, 1999 and at or before
the Expiration Date any of the following shall have occurred:
29
<PAGE>
(a) there shall have been threatened, instituted or pending any
action or proceeding by any government or governmental, regulatory or
administrative agency or authority or tribunal or any other person,
domestic or foreign, or before any court, authority, agency or tribunal
that (i) challenges the acquisition of Shares pursuant to the Offer or
otherwise in any manner relates to or affects the Offer or (ii) in the
reasonable judgment of the Company, could materially and adversely
affect the business, condition (financial or other), income, operations
or prospects of the Company and its subsidiaries, taken as a whole, or
otherwise materially impair in any way the contemplated future conduct
of the business of the Company or any of its subsidiaries or materially
impair the Offer's contemplated benefits to the Company;
(b) there shall have been any action threatened, pending or taken,
or approval withheld, or any statute, rule, regulation, judgment, order
or injunction threatened, proposed, sought, promulgated, enacted,
entered, amended, enforced or deemed to be applicable to the Offer or
the Company or any of its subsidiaries, by any legislative body, court,
authority, agency or tribunal which, in the Company's reasonable
judgment, would or might directly or indirectly (i) make the acceptance
for payment of, or payment for, some or all of the Shares illegal or
otherwise restrict or prohibit consummation of the Offer, or (ii) delay
or restrict the ability of the Company, or render the Company unable,
to accept for payment or pay for some or all of the Shares;
(c) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market, (ii) the
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or any limitation on, or any
event which, in the Company's reasonable judgment, might affect the
extension of credit by lending institutions in the United States, (iii)
the commencement of a war, armed hostilities or other international or
national calamity directly or indirectly involving the United States,
other than armed hostilities in the Persian Gulf or in the Balkans,
which the Company will not assert, and hereby expressly waives, as a
condition to its obligation to accept for payment or pay for any Shares
tendered, or (iv) in the case of any of the foregoing existing at the
time of the commencement of the Offer, in the Company's reasonable
judgment, a material acceleration or worsening thereof.
The foregoing conditions are for the sole benefit of the Company and
may be asserted by the Company regardless of the circumstances (including any
action or inaction by the Company) giving rise to any of these conditions, and
any such condition may be waived by the Company, in whole or in part, at any
time and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights shall not be deemed a waiver of
the right and each of these rights shall be deemed an ongoing right which may be
asserted at any time and from time to time. Any determination by the Company
concerning the events described above will be final and binding on all parties.
The Exchange Act requires that all conditions to the Offer must be
satisfied or waived before the Expiration Date.
14. Certain Legal Matters
The Company is not aware of any license or regulatory permit that
appears to be material to the Company's business that might be adversely
affected by the Company's acquisition of Shares as contemplated herein or of any
approval or other action by, or any filing with, any government or governmental,
administrative or regulatory authority or agency, domestic or foreign, that
would be required for the acquisition or ownership of Shares by the Company as
contemplated herein. Should any such approval or other action be required, the
Company presently contemplates that such approval or other action will be
sought. The Company is unable to predict whether it may determine that it is
required to delay the acceptance for payment of or payment for Shares tendered
pursuant to the Offer pending the outcome of any such matter. There can be no
assurance that any such approval or other action, if needed, would be obtained
or would be obtained without substantial conditions or that the failure to
obtain any such approval or other action might not result in adverse
consequences to the Company's business. The Company's obligations under the
Offer to accept for payment and pay for Shares is subject to certain conditions.
See Section 13.
15. Fees and Expenses
ChaseMellon Shareholder Services, L.L.C. ("ChaseMellon") will act as
the Information Agent and Depositary for the Company in connection with the
Offer. ChaseMellon, as Information Agent, may contact stockholders by mail,
telephone, facsimile, telex, telegraph, other electronic means and personal
interviews, and may request brokers, dealers and other nominee stockholders to
forward materials relating to the Offer to beneficial owners. The Company has
agreed to pay $7,500 for such services, plus $3.50 per incoming phone call.
ChaseMellon will be reimbursed for certain out-of-pocket expenses and will also
be indemnified against certain liabilities, including liabilities under the
federal securities laws, in connection with the Offer.
30
<PAGE>
ChaseMellon will also act as Depositary in connection with the Offer.
The Depositary will receive $7,500, plus reasonable and customary compensation
for its services and will also be reimbursed for certain out-of-pocket expenses.
The minimum aggregate payment due to the Depositary for performing these
services is $15,000. The Company has agreed to indemnify the Depositary against
certain liabilities, including certain liabilities under the federal securities
laws, in connection with the Offer. Neither the Information Agent nor the
Depositary has been retained to make solicitations or recommendations in
connection with the Offer.
The Company will not pay any fees or commissions to any broker, dealer
or other person for soliciting tenders of Shares pursuant to the Offer (other
than the fee of the Information Agent). The Company will, upon request,
reimburse brokers, dealers, commercial banks and trust companies for reasonable
and customary handling and mailing expenses incurred by them in forwarding
materials relating to the Offer to their customers.
16. Miscellaneous
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) Stockholders residing in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the securities,
blue sky or other laws of the jurisdiction. However, the Company may, in its
discretion, take such action as it may deem necessary to make the Offer in any
jurisdiction and extend the Offer to Stockholders in that jurisdiction. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer will be deemed to be made on
behalf of the Company by one or more registered brokers or dealers that are
licensed under the laws of the jurisdiction.
The Company has filed with the Commission a Schedule 13E-4 pursuant to
Rule 13(e)(1) under the Exchange Act containing certain additional information
with respect to the Offer. The Schedule and any amendments to the Schedule,
including exhibits, may be examined and copies may be obtained from the
principal office of the Commission in the manner set forth in Section 9 above
(except that they will not be available at the regional offices of the
Commission).
No person has been authorized to give any information or to make any
representation on behalf of the Company not contained in this Offer to Purchase
or in the Letter of Transmittal and, if given or made, the information or
representation must not be relied upon as having been authorized.
VIRBAC CORPORATION
March 18, 1999
31
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and
duly signed, will be accepted. The Letter of Transmittal, certificates for
Shares and any other required documents should be sent or delivered by each
Stockholder of the Company or his broker, dealer, commercial bank, trust company
or other nominee to the Depositary, at one of the addresses set forth below:
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Hand Delivery: By Overnight Delivery: By Mail:
120 Broadway, 13th Floor 85 Challenger Road P.O. Box 3301
New York, New York 10271 Mail Drop-Reorg South Hackensack,
Attn: Reorganization Dept. Ridgefield Park, New Jersey New Jersey
07660 07606
Attn: Reorganization Dept. Attn: Reorganization
Dept.
Facsimile Transmission:
(201) 296-4293
Confirm Receipt of Facsimile
by Telephone:
(201) 296-4860
Questions and requests for assistance may be directed to the
Information Agent at their respective addresses and telephone numbers listed
below. Additional copies of this Offer to Purchase, the Letter of Transmittal
and other tender offer materials may be obtained from the Information Agent as
set forth below and will be furnished promptly at the Company's expense. You may
also contact your broker, dealer, commercial bank, trust company or other
nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
450 West 33rd Street, 14th Floor
New York, New York 10001
Toll Free Telephone Number:
(877) 698-6865
Banks and Brokerage Firms,
Please Call Collect:
(212) 273-8083
32
<PAGE>
Exhibit (a)(2)
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
of
Virbac Corporation
(Formerly Agri-Nutrition Group Limited)
Pursuant to the Offer to Purchase
Dated March 18, 1999
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON MONDAY, APRIL 19, 1999, UNLESS THE OFFER IS EXTENDED
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
<TABLE>
<CAPTION>
<S> <C> <C>
By Hand Delivery: By Overnight Delivery: By Mail:
120 Broadway, 13th Floor 85 Challenger Road P.O. Box 3301
New York, New York 10271 Mail Drop--Reorg South Hackensack, New Jersey 07606
Attn: Reorganization Dept. Ridgefield Park, New Jersey 07660 Attn: Reorganization Dept.
Attn: Reorganization Dept.
</TABLE>
Facsimile Transmission:
(201) 296-4293
Confirm Receipt of Facsimile by Telephone:
(201) 296-4860
DESCRIPTION OF SHARES TENDERED
Name(s) and Address(es)
of Registered Holder(s)
(Please fill in, if blank, exactly as name(s)
appear(s) on the Certificate(s))
Certificates Enclosed
(Attach additional signed list, if necessary)
Total Number
Share of Shares Number of
Certificate Represented by Shares
Number(s)* Certificate(s) Tendered**
Total:
Indicate in this box the order (by certificate number) in which Shares are to be
purchased in event of proration.*** Attach additional signed list if necessary.
See Instruction 8.
1st:_______ 2nd:_______ 3rd:_______ 4th:_______ 5th:_______
* DOES NOT need to be completed by Stockholders delivering Shares by
book-entry transfer through the Depositary.
** Unless otherwise indicated, it will be assumed that all Shares represented
by Certificates delivered to the Depositary are being tendered. See
Instruction 4.
*** If you do not designate an order, in the event less than all Shares
tendered are purchased due to proration, Shares will be selected for
purchase by the Depositary.
<PAGE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS WILL NOT CONSTITUTE A VALID DELIVERY. YOU
MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED
BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Shares (as
defined below) of Virbac Corporation ("Stockholders") if certificates evidencing
Shares ("Certificates") are to be forwarded with this Letter of Transmittal or,
unless an Agent's Message (as defined in the Offer to Purchase) is utilized, if
delivery of Shares is to be made by book-entry ("B/E") transfer to an account
maintained by ChaseMellon Shareholder Services, L.L.C. at The Depository Trust
Company (the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in Section 2 of the Offer to Purchase.
Stockholders whose Certificates are not immediately available or who
cannot deliver either their Certificates for, or a Book-Entry Confirmation (as
defined in Section 2 of the Offer to Purchase) with respect to, their Shares and
all other required documents to the Depositary prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase) may tender their Shares according
to the guaranteed delivery procedures set forth in Section 2 of the Offer to
Purchase. See Instruction 2 hereof. Delivery of documents to the Book-Entry
Transfer Facility does not constitute delivery to the Depositary.
|_| CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY
TRANSFER FACILITY, AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE
BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER).
Name of Tendering Institution:
Account Number:
Transaction Code Number:
|_| CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE
THE FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF
GUARANTEED DELIVERY.
Name(s) of Registered Stockholder(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
Account Number:
Transaction Code Number:
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Virbac Corporation, a Delaware
corporation (formerly Agri-Nutrition Group Limited) (the "Company"), the
above-described shares of the Company's Common Stock, par value $0.01 per share
(the "Shares"), at a purchase price of $3.00 per Share, net to the seller in
cash, without interest, upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated March 18, 1999 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which, together with any amendments or supplements hereto or thereto,
collectively constitute the "Offer").
Subject to, and effective upon, acceptance for payment of the Shares
tendered hereby in accordance with 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 undersigned hereby sells,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to all Shares tendered hereby and orders the registration of all
such Shares if tendered by book-entry transfer and hereby irrevocably
constitutes and appoints the Depositary as the true and lawful agent and
attorney-in-fact of the undersigned with respect to such (with full knowledge
that the Depositary also acts as the agent of the Company) with respect to such
Shares, with full power of substitution (such power of attorney being deemed to
be an irrevocable power coupled with an interest), to: (a) deliver
certificate(s) representing such Shares or transfer ownership of such Shares on
the account books maintained by the Book-Entry Transfer Facility, together, in
either such case, with all accompanying evidences of transfer and authenticity,
to or upon the order of the Company upon receipt by the Depositary, as the
undersigned's agent, of the Purchase Price (as defined below) with respect to
such Shares; (b) present certificates for such Shares for cancellation and
transfer on the Company's books; and (c) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Shares, subject to the next
paragraph, all in accordance with the terms and subject to the conditions of the
Offer.
The undersigned hereby covenants, represents and warrants to the Company
that:
(a) the undersigned has full power and authority to tender, sell, assign
and transfer the Shares tendered hereby and that when and to the extent the same
are accepted for payment by the Company, the Company will acquire good,
marketable and unencumbered title thereto, free and clear of all security
interests, liens, restrictions, charges, encumbrances, conditional sales
agreements or other obligations relating to the sale or transfer of such Shares,
and not subject to any adverse claims;
(b) the undersigned understands that tenders of Shares pursuant to any
one of the procedures described in Section 2 of the Offer to Purchase entitled
"Procedure for Tendering Shares" and in the instructions hereto will constitute
the undersigned's acceptance of the terms and conditions of the Offer, including
the undersigned's representation and warranty that (i) the undersigned has a net
long position in the Shares or equivalent securities at least equal to the
Shares tendered within the meaning of Rule 14e-4 under the Securities Exchange
Act of 1934, as amended ("Rule 14e-4"), and (ii) such tender of Shares complies
with Rule 14e-4;
(c) the undersigned will, upon request, execute and deliver any
additional documents deemed by the Depositary or the Company to be necessary or
desirable to complete the sale, assignment and transfer of the Shares tendered
hereby; and
(d) the undersigned has read, understands and agrees to all of the terms
of the Offer.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 2 of the Offer to Purchase entitled
"Procedure for Tendering Shares" and in the instructions hereto will constitute
a binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Offer. The undersigned acknowledges that no
interest will be paid on the Purchase Price for tendered Shares regardless of
any extension of the Offer or any delay in making such payment.
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned, and any obligation of the
undersigned hereunder shall be binding upon the heirs, personal
<PAGE>
representatives, executors, administrators, successors, assigns, trustees in
bankruptcy and legal representatives of the undersigned. Except as stated in the
Offer to Purchase, this tender is irrevocable.
The name(s) and address(es) of the registered holder(s) should be
printed, if they are not already printed above, exactly as they appear on the
certificates representing Shares tendered hereby. The certificate numbers, the
number of Shares represented by such certificates and the number of Shares that
the undersigned wishes to tender, should be set forth in the appropriate boxes
above.
The undersigned understands that the Company will, upon the terms and
subject to the conditions of the Offer, pay $3.00 per Share (the "Purchase
Price") for Shares properly tendered and not properly withdrawn prior to the
Expiration Date pursuant to the Offer, taking into account the number of Shares
so tendered. The undersigned understands that all Shares properly tendered prior
to the Expiration Date and not properly withdrawn will be purchased at the
Purchase Price, upon the terms and subject to the conditions of the Offer,
including its proration provisions, and that the Company will return all other
Shares not purchased pursuant to the Offer, including Shares not purchased
because of proration.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, the Company may terminate or amend the Offer or may
postpone the acceptance for payment of, or the payment for, Shares tendered or
may accept for payment fewer than all of the Shares tendered hereby. In any such
event, the undersigned understands that certificate(s) for any Shares not
tendered or not purchased will be returned to the undersigned at the address
indicated above, unless otherwise indicated under the box entitled "Special
Payment Instructions" or the box entitled "Special Delivery Instructions" below.
The undersigned understands that acceptance of Shares by the Company for
payment will constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Offer.
The check for the aggregate net Purchase Price for such of the Shares
tendered hereby as are purchased will be issued to the order of the undersigned
and mailed to the address indicated above, unless otherwise indicated under the
box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" below. The undersigned acknowledges that the Company has
no obligation, pursuant to the "Special Payment Instructions," to transfer any
Shares from the name of its registered holder(s) thereof, or to order the
registration or transfer of any Shares tendered by book-entry transfer, if the
Company does not purchase any of such Shares.
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 9)
To be completed ONLY if Certificates for Shares not tendered or not accepted for
payment and/or the check for the payment and the check for the Purchase Price of
shares accepted for payment are to be issued in the name of someone other than
the undersigned, or if Shares delivered by book-entry transfer that are not
accepted for payment are to be returned by credit to an account maintained at
the Book-Entry Transfer Facility other than the account indicated above.
Issue check and certificate(s) to:
Name(s):
(Please type or Print)
Address:
(Include Zip Code)
(Tax Identification or Social Security No.)
(Also complete Substitute Form W-9 on the reverse
side of this form.)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 9)
To be completed ONLY if Certificates for Shares not tendered or not accepted for
payment and/or the check for the purchase price of Shares accepted for payment
are to be sent to someone other than the undersigned or to the undersigned at an
address other than that shown above.
Mail check and certificate(s) to:
Name:
(Please type or Print)
Address:
(Include Zip Code)
<PAGE>
IMPORTANT:
STOCKHOLDER: SIGN HERE AND COMPLETE SUBSTITUTE
FORM W-9 ON THE REVERSE SIDE OF THIS FORM
Signature(s) of Stockholder(s)
Dated: , 1999
(Must be signed by the registered holder(s) exactly as name(s) appear(s)
on the Certificate or on a security position listing or by person(s) authorized
to become registered holder(s) by Certificates and documents transmitted
herewith. If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, agents, officers or corporations or others acting in a
fiduciary or representative capacity, please provide the following information.
See Instruction 5.)
Name:
(Please type or Print)
Capacity (Full Title):
Address:
(Include Zip Code)
Area Code and Telephone No.:
(Home)
(Business)
Tax Identification or
Social Security No.
(Complete Substitute Form W-9 below)
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 5)
Authorized Signature(s):
Name:
(Please Type or Print)
Title:
Name of Firm:
Address:
(Include Zip Code)
Area Code and Telephone No.:
Dated: , 1999
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. No signature guarantee is required if either:
(a) this Letter of Transmittal is signed by the registered holder of
the Shares (which term, for purposes hereof, shall include any participant in
any of the Book-Entry Transfer Facility systems whose name appears on a security
position listing as the owner of such Shares) tendered hereby exactly as the
name of such registered holder appears on the certificate(s) for such Shares
tendered with this Letter of Transmittal and payment and delivery are to be made
directly to such owner unless such owner has completed either the box entitled
"Special Payment Instructions" or "Special Delivery Instructions" above; or
(b) such Shares are tendered for the account of 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 a bank, broker,
dealer, credit union, savings association or other entity which is an "eligible
guarantor institution," as such term is defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended (each of the foregoing constituting
an "Eligible Institution").
In all other cases, an Eligible Institution must guarantee all signatures
on this Letter of Transmittal. See Instruction 5.
2. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed only if certificates
for Shares are delivered with it to the Depositary (or such certificates will be
delivered pursuant to a Notice of Guaranteed Delivery previously sent to the
Depositary) or if a tender for Shares is being made concurrently pursuant to the
procedure for tender by book-entry transfer set forth in Section 2 of the Offer
to Purchase. Certificates for all physically tendered Shares or confirmation of
a book-entry transfer into the Depositary's account at the Book-Entry Transfer
Facility of Shares tendered electronically, together in each case with a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof), and any other documents required by this Letter of
Transmittal, should be mailed or delivered to the Depositary at the appropriate
address set forth herein and must be delivered to the Depositary on or before
the Expiration Date. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY
IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
Stockholders whose certificates are not immediately available or who
cannot deliver certificates for their Shares and all other required documents to
the Depositary before the Expiration Date, or whose Shares cannot be delivered
on a timely basis pursuant to the procedures for book-entry transfer, must, in
any such case, tender their Shares by or through any Eligible Institution by
properly completing and duly executing and delivering a Notice of Guaranteed
Delivery (or facsimile thereof) and by otherwise complying with the guaranteed
delivery procedure set forth in Section 2 of the Offer to Purchase. Pursuant to
such procedure, certificates for all physically tendered Shares or book-entry
confirmations, as the case may be, as well as a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile hereof) and all
other documents required by this Letter of Transmittal, must be received by the
Depositary within three (3) Nasdaq Stock Market, Inc. National Market trading
days after receipt by the Depositary of such Notice of Guaranteed Delivery, all
as provided in Section 2 of the Offer to Purchase.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a signature guarantee by an Eligible Institution in the form set
forth therein. For Shares to be tendered validly pursuant to the guaranteed
delivery procedure, the Depositary must receive the Notice of Guaranteed
Delivery on or before the Expiration Date.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR
SHARES, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS
BY
<PAGE>
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY.
The Company will not accept any alternative, conditional or contingent
tenders, nor will it purchase any fractional Shares, except as expressly
provided in the Offer to Purchase. All tendering Stockholders, by execution of
this Letter of Transmittal (or a facsimile hereof), waive any right to receive
any notice of the acceptance of their tender.
3. Inadequate Space. If the space provided in the box entitled "Description of
Shares Tendered" above is inadequate, the certificate numbers and/or the number
of Shares should be listed on a separate signed schedule and attached to this
Letter of Transmittal.
4. Partial Tenders and Unpurchased Shares. (Not applicable to Stockholders who
tender by book-entry transfer.) If fewer than all of the Shares evidenced by any
certificate are to be tendered, fill in the number of Shares that are to be
tendered in the column entitled "Number of Shares Tendered" in the box entitled
"Description of Shares Tendered" above. In such case, if any tendered Shares are
purchased, a new certificate for the remainder of the Shares (including any
Shares not purchased) evidenced by the old certificate(s) will be issued and
sent to the registered holder(s) thereof, unless otherwise specified in either
the box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" in this Letter of Transmittal, as soon as practicable
after the Expiration Date. Unless otherwise indicated, all Shares represented by
the certificate(s) set forth above and delivered to the Depositary will be
deemed to have been tendered.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements.
(a) If this Letter of Transmittal is signed by the registered holder(s)
of the Shares tendered hereby, the signature(s) must correspond exactly with the
name(s) as written on the face of the certificate(s) without any change
whatsoever.
(b) If the Shares tendered hereby are registered in the names of two or
more joint holders, each such holder must sign this Letter of Transmittal.
(c) If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles hereof) as there are different
registrations of certificates.
(d) When this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, no endorsement(s) of certificate(s)
representing such Shares or separate stock power(s) are required unless payment
is to be made or the certificate(s) for Shares not tendered or not purchased are
to be issued to a person other than the registered holder(s) thereof.
SIGNATURE(S) ON SUCH CERTIFICATE(S) MUST BE GUARANTEED BY AN ELIGIBLE
INSTITUTION. If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the certificate(s) listed, or if payment is to be made
or certificate(s) for Shares not tendered or not purchased are to be issued to a
person other than the registered holder(s) thereof, such certificate(s) must be
endorsed or accompanied by appropriate stock power(s), in either case signed
exactly as the name(s) of the registered holder(s) appears on the
certificate(s), and the signature(s) on such certificate(s) or stock power(s)
must be guaranteed by an Eligible Institution. See Instruction 1.
(e) If this Letter of Transmittal or any certificate(s) or stock
power(s) are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or any other person acting in a
fiduciary or representative capacity, such person should so indicate when
signing this Letter of Transmittal and must submit proper evidence satisfactory
to the Company of his or her authority so to act.
6. Stock Transfer Taxes. Except as provided in this Instruction 6, no stock
transfer tax stamps or funds to cover such stamps need accompany this Letter of
Transmittal. The Company will pay any stock transfer taxes payable on the
transfer to it of Shares purchased pursuant to the Offer. If, however, either
(a) payment of the Purchase Price for Shares tendered hereby and accepted for
purchase is to be made to any person other than the
<PAGE>
registered holder(s); or (b) Shares not tendered or not accepted for purchase
are to be registered in the name(s) of any person(s) other than the registered
holder(s); or (c) certificate(s) representing tendered Shares are registered in
the name(s) of any person(s) other than the person(s) signing this Letter of
Transmittal, then the Depositary will deduct from such Purchase Price the amount
of any stock transfer taxes (whether imposed on the registered holder(s), such
other person(s) or otherwise) payable on account of the transfer to such person,
unless satisfactory evidence of the payment of such taxes or any exemption
therefrom is submitted.
7. Lost, Stolen, Destroyed or Mutilated Certificates. If any certificate(s)
representing Shares has been lost, stolen, destroyed or mutilated, the
Stockholder should promptly notify the Depositary by checking the box set forth
above and indicating the number of Shares so lost, stolen, destroyed or
mutilated. Such Stockholder will then be instructed by the Depositary as to the
steps that must be taken in order to replace the certificate. This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, stolen, destroyed or mutilated certificates have been followed.
Stockholders may contact the Depositary at (800) 777-3674 (toll free) to
expedite such process.
8. Order of Purchase in Event of Proration. As described in Section 1 of the
Offer to Purchase, Stockholders may designate the order in which their Shares
are to be purchased in the event of proration. The order of purchase may have an
effect on the federal income tax treatment of the Purchase Price for the Shares
purchased. See Section 1 and Section 5 of the Offer to Purchase.
9. Special Payment and Delivery Instructions. If certificate(s) for Shares not
tendered or not purchased and/or check(s) are to be issued in the name of a
person other than the signer of this Letter of Transmittal or if such
certificates and/or checks are to be sent to someone other than the person
signing this Letter of Transmittal or to the signer at a different address, the
box entitled "Special Payment Instructions" and/or the box entitled "Special
Delivery Instructions" on this Letter of Transmittal should be completed as
applicable and signatures must be guaranteed as described in Instruction 1.
10. Irregularities. All questions as to the number of Shares to be accepted, the
price to be paid therefor and the validity, form, eligibility (including time of
receipt) and acceptance for payment of any tender of Shares will be determined
by the Company in its sole discretion, which determination shall be final and
binding on all parties. The Company reserves the absolute right to reject any or
all tenders of Shares it determines not to be in proper form or the acceptance
of which or payment for which may, in the opinion of the Company's counsel, be
unlawful. The Company also reserves the absolute right to waive any of the
conditions of the Offer or any defect or irregularity in any tender with respect
to any particular Shares or any particular Stockholder, and the Company's
interpretation of the terms of the Offer (including these Instructions) will be
final and binding on all parties. No tender of Shares will be deemed to be
properly made until all defects and irregularities have been cured by the
tendering Stockholder or waived by the Company. Unless waived, any defects or
irregularities in connection with tenders must be cured within such time as the
Company shall determine. None of the Company, the Depositary, the Information
Agent (as defined in the Offer to Purchase) or any other person is or will be
obligated to give notice of any defects or irregularities in tenders and none of
them will incur any liability for failure to give any such notice.
11. Questions and Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to, or additional copies of the Offer to
Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and
other related materials may be obtained from the Information Agent at the
address and telephone number set forth on the back cover of the Offer to
Purchase or from brokers, dealers, commercial banks or trust companies.
12. Tax Identification Number and Backup Withholding. Federal income tax law
generally requires that a stockholder whose tendered Shares are accepted for
purchase, or such stockholder's assignee (in either case, the "Payee"), provide
the Depositary with such Payee's correct Taxpayer Identification Number ("TIN"),
which, in the case of a Payee who is an individual, is such Payee's social
security number. If the Depositary is not provided with the correct TIN or an
adequate basis for an exemption, such Payee may be subject to a $50 penalty
imposed by the Internal Revenue Service and backup withholding in an amount
equal to 31% of the gross proceeds received pursuant to the Offer. If
withholding results in an overpayment of taxes, a refund may be obtained.
<PAGE>
To prevent backup withholding, each Payee must provide such Payee's
correct TIN by completing the Substitute Form W-9 set forth herein, certifying
that the TIN provided is correct (or that such Payee is awaiting a TIN) and that
(i) the Payee is exempt from backup withholding, (ii) the Payee has not been
notified by the Internal Revenue Service that such Payee is subject to backup
withholding as a result of a failure to report all interest or dividends, or
(iii) the Internal Revenue Service has notified the Payee that such Payee is no
longer subject to backup withholding.
If the Payee does not have a TIN, such Payee should (i) consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for instructions on applying for a TIN, (ii) write "Applied
For" in the space provided in Part 1 of the Substitute Form W-9, and (iii) sign
and date the Substitute Form W-9 and the Certificate of Awaiting Taxpayer
Identification Number set forth herein. If the Payee does not provide such
Payee's TIN to the Depositary within sixty (60) days, backup withholding will
begin and continue until such Payee furnishes such Payee's TIN to the
Depositary. Note that writing "Applied For" on the Substitute Form W-9 means
that the Payee has already applied for a TIN or that such Payee intends to apply
for one in the near future.
If Shares are held in more than one name or are not in the name of the
actual owner, consult the W-9 Guidelines for information on which TIN to report.
Exempt Payees (including, among others, all corporations and certain
foreign individuals) are not subject to backup withholding and reporting
requirements. To prevent possible erroneous backup withholding, an exempt Payee
should write "Exempt" in Part 2 of Substitute Form W-9. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions. In order for a nonresident alien or
foreign entity to qualify as exempt, such person must submit a completed Form
W-8 Certificate of Foreign Status, signed under penalty of perjury attesting to
such exempt status. Such form may be obtained from the Depositary.
13. Withholding On Non-United States Holder. Even if a Non-United States Holder
(as defined below) has provided the required certification to avoid backup
withholding, the Depositary will withhold United States federal income taxes
equal to 30% of the gross payments payable to a Non-United States Holder or such
holder's agent unless the Depositary determines that a reduced rate of
withholding is available (e.g., pursuant to a tax treaty) or that an exemption
from withholding is applicable (e.g., because such gross proceeds are
effectively connected with the conduct of a trade or business within the United
States). For this purpose, a "Non-United States Holder" is any Stockholder that
for United States federal income tax purposes is not (i) a citizen or resident
of the United States, (ii) a corporation or partnership created or organized in
or under the laws of the United States or any State or division thereof
(including the District of Columbia), (iii) an estate the income of which is
subject to United States federal income taxation regardless of the source of
such income, or (iv) a trust (a) the administration over which a United States
court can exercise primary supervision and (b) all of the substantial decisions
of which one or more United States persons have the authority to control.
Notwithstanding the foregoing, to the extent provided in United States Treasury
Regulations, certain trusts in existence on August 20,1996, and treated as
United States persons prior to such date, that elect to continue to be treated
as United States persons also will not be Non-United States Holders. In order to
obtain a reduced rate of withholding pursuant to a tax treaty, a Non-United
States Holder must deliver to the Depositary before the payment a properly
completed and executed IRS Form 1001. In order to obtain an exemption from
withholding on the grounds that the gross proceeds paid pursuant to the Offer
are effectively connected with the conduct of a trade or business within the
United States, a Non-United States Holder must deliver to the Depositary a
properly completed and executed IRS Form 4224. The Depositary will determine a
Stockholder's status as a Non-United States Holder and eligibility for a reduced
rate of, or an exemption from, withholding by reference to outstanding
certificates or statements concerning eligibility for a reduced rate of, or
exemption from, withholding (e.g., IRS Form 1001 or IRS Form 4224) unless facts
and circumstances indicate that such reliance is not warranted. A Non-United
States Holder may be eligible to obtain a refund of all or a portion of any tax
withheld if such Non-United States Holder meets those tests described in Section
5 of the Offer to Purchase that would characterize the exchange as a sale (as
opposed to a dividend) or is otherwise able to establish that no tax or a
reduced amount of tax is due.
<PAGE>
NON-UNITED STATES HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS
REGARDING THE APPLICATION OF UNITED STATES FEDERAL INCOME TAX WITHHOLDING,
INCLUDING ELIGIBILITY FOR A WITHHOLDING TAX REDUCTION OR EXEMPTION, AND THE
REFUND PROCEDURE.
THIS LETTER OF TRANSMITTAL, PROPERLY COMPLETED AND DULY EXECUTED (OR
MANUALLY SIGNED FACSIMILE HEREOF), TOGETHER WITH CERTIFICATES REPRESENTING
SHARES BEING TENDERED OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER
REQUIRED DOCUMENTS, OR A NOTICE OF GUARANTEED DELIVERY, MUST BE RECEIVED PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. STOCKHOLDERS ARE
ENCOURAGED TO RETURN A COMPLETED SUBSTITUTE FORM W-9 WITH THIS LETTER OF
TRANSMITTAL.
<PAGE>
SUBSTITUTE
FORM W-9
Department of
the Treasury
Internal Revenue
Service
PAYER'S NAME: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Part I-Taxpayer Identification Number-For all accounts enter your taxpayer
identification number in the appropriate box. For most individuals and sole
proprietors, this is your Social Security Number. For other entities, it is your
Employer Identification Number. If you do not have a number, see "How to Obtain
a TIN"in the enclosed Guidelines.
Note: If the account is in more than one name, see the chart on page 1 of the
enclosed Guidelines to determine what number to enter.
Part II-For Payees Exempt From Backup Withholding (see enclosed Guidelines and
complete as instructed therein).
Social Security Number
OR
Employer Identification Number
If awaiting TIN write
"Applied For".
Payer's Request
for Taxpayer
Identification
Number
Part III Certification.-Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification number,
or I am waiting for a number to be issued to me and either (a) I have mailed or
delivered an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security Administration
Office or (b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number;
(2) I am not subject to backup withholding because (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue service
("IRS") that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding; and
(3) Any other information provided on this form is true, correct and complete.
Certification Instructions-You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because
of underreporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding you
received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out item (2).
SIGNATURE DATE
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR INSTRUCTIONS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN THE
BOX IN PART I OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalty of perjury that a taxpayer identification number has not
been issued to me, and either (1) 1 have mailed or delivered an application to
receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (2) 1 intend to mail
orapplication deliver an application in the near future. I understand that if I
do not provide a taxpayer identification number by the time of payment, 31% of
all payments of the purchase price pursuant to the Offer made to me thereafter
will be withheld until I provide a number.
SIGNATURE DATE , 1999
<PAGE>
The Information Agent for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
450 West 33rd Street, 14th Floor
New York, New York 10001
Toll Free Number:
(877) 698-6865
Banks and Brokerage Firms,
Please Call Collect:
(212) 273-8083
<PAGE>
Exhibit (a)(3)
Virbac Corporation
(Formerly Agri-Nutrition Group Limited)
Notice of Guaranteed Delivery
for
Tender of Shares of Common Stock
This Notice of Guaranteed Delivery, or one substantially in the form
hereof, must be used to accept the Offer (as defined below) if certificates
evidencing shares of Common Stock, par value $0.01 per share (the "Shares"), of
Virbac Corporation, a Delaware corporation (formerly Agri-Nutrition Group
Limited) (the "Company"), are not immediately available, or if the procedure for
book-entry transfer set forth in the Offer to Purchase dated March 18, 1999 (the
"Offer to Purchase") and the related Letter of Transmittal (which, as amended or
supplemented from time to time, together constitute the "Offer") cannot be
completed on a timely basis or time will not permit all required documents,
including a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), to reach the Depositary prior to the
Expiration Date (as defined in the Offer to Purchase).
This Notice of Guaranteed Delivery, properly completed and duly
executed, may be delivered by hand, mail or facsimile transmission to the
Depositary. See Section 2 of the Offer to Purchase.
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
<TABLE>
<CAPTION>
<S> <C> <C>
By Hand Delivery: By Overnight Delivery: By Mail:
120 Broadway, 13th Floor 85 Challenger Road P.O. Box 3301
New York, New York 10271 Mail Drop--Reorg South Hackensack, New Jersey 07606
Attn: Reorganization Dept. Ridgefield Park, New Jersey 07660 Attn: Reorganization Dept.
Attn: Reorganization Dept.
</TABLE>
Facsimile Transmission:
(201) 296-4293
Confirm Receipt of Facsimile by Telephone:
(201) 296-4860
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. DELIVERIES
TO THE COMPANY WILL NOT BE FORWARDED TO THE DEPOSITARY AND THEREFORE WILL NOT
CONSTITUTE VALID DELIVERY. DELIVERIES TO THE BOOK-ENTRY TRANSFER FACILITY WILL
NOT CONSTITUTE VALID DELIVERY TO THE DEPOSITARY.
This Notice of Guaranteed Delivery form is not to be used to guarantee
signatures. If a signature on the Letter of Transmittal is required to be
guaranteed by an Eligible Institution (as defined in the Offer to Purchase)
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and
subject to the conditions set forth in the Offer to Purchase and the related
Letter of Transmittal, receipt of which is hereby acknowledged, the number of
Shares specified below pursuant to the guaranteed delivery procedure set forth
in Section 2 of the Offer to Purchase.
Signature(s):
Name(s) of
Record Holder(s):
Please Type or Print
Certificate Nos.
(if available):
Address:
Zip Code
Area Code and
Telephone No.:
If Shares will be delivered by book-entry transfer, provide the following
information:
Account Number:
Date:
<PAGE>
GUARANTEE
(Not to be used for a signature guarantee.)
The undersigned, 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 a bank, broker, dealer, credit union,
savings association or other entity which is an "eligible guarantor
institution," as such term is defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (each of the foregoing constituting an
"Eligible Institution"), guarantees the delivery to the Depositary of the Shares
tendered hereby, in proper form for transfer, or a confirmation that the Shares
tendered hereby have been delivered pursuant to the procedure for book-entry
transfer set forth in the Offer to Purchase into the Depositary's account at the
Book-Entry Transfer Facility, together with a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof) and any
other required documents, all within three (3) Nasdaq Stock Market, Inc.
National Market trading days of the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates representing Shares to the Depositary within the time period set
forth herein. Failure to do so could result in a financial loss to such Eligible
Institution.
Name of Firm:
Address:
Zip Code
Area Code and
Telephone No.:
Authorized Signature
Name:
Please Print
Title:
Date:
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS FORM. CERTIFICATES FOR SHARES
SHOULD BE SENT WITH THE LETTER OF TRANSMITTAL.
<PAGE>
Exhibit (a)(4)
Offer to Purchase for Cash
Up to 1,000,000 Shares of Common Stock
of
Virbac Corporation
(Formerly Agri-Nutrition Group Limited)
at
$3.00 Net Per Share
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK TIME, ON
MONDAY, APRIL 19, 1999, UNLESS THE OFFER IS EXTENDED.
To Brokers, Dealers, Commercial Banks, March 18, 1999
Trust Companies and Other Nominees:
We have been appointed by Virbac Corporation, a Delaware corporation
(formerly Agri-Nutrition Group Limited) (the "Company"), to act as the
Information Agent and Depositary in connection with its offer to purchase
1,000,000 shares of the Company's Common Stock, par value $0.01 per share (the
"Shares"), at $3.00 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in an Offer to Purchase, dated March 18,
1999, and the related Letter of Transmittal (which, together with any amendments
or supplements thereto, collectively constitute the "Offer"). Please furnish
copies of the enclosed materials to those of your clients for whose accounts you
hold Shares in your name or in the name of your nominee.
Enclosed herewith for your information and for forwarding to your clients
are copies of the following documents:
1. Offer to Purchase, dated March 18, 1999.
2. Letter of Transmittal to tender Shares for your use and for the
information of your clients, together with Guidelines of the Internal Revenue
Service for Certification of Taxpayer Identification Number on Substitute Form
W-9 providing information relating to backup federal income tax withholding.
Manually signed facsimile copies of the Letter of Transmittal may be used to
tender Shares.
3. Notice of Guaranteed Delivery for Shares to be used to accept the
Offer if neither of the two procedures for tendering Shares set forth in the
Offer to Purchase can be completed on a timely basis.
4. A form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of your nominee,
with space provided for obtaining such clients' instructions with regard to the
Offer.
<PAGE>
5. Return envelope addressed to ChaseMellon Shareholder Services,
L.L.C., the Depositary.
Your prompt action is requested. We urge you to contact your clients as
promptly as possible. Please note that the offer and withdrawal rights will
expire at 5:00 P.M., New York time, on Monday, April 19, 1999, unless the Offer
is extended.
Please note the following:
1. The tender price is $3.00 per Share, net to the seller in cash.
2. The Offer is being made for 1,000,000 Shares.
3. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares by the Company
pursuant to the Offer. However, federal income tax backup withholding at a
rate of 31% may be required, unless an exemption is provided or unless the
required tax identification information is provided. See Instruction 12 of
the Letter of Transmittal.
4. The Offer and withdrawal rights will expire at 5:00 P.M., New York
time, on Monday, April 19, 1999, unless the Offer is extended.
5. Notwithstanding any other provision of the Offer, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Depositary of (a) certificates for such Shares
(the "Certificates") pursuant to the procedures set forth in Section 2 of
the Offer to Purchase, or a timely Book-Entry Confirmation (as defined in
the Offer to Purchase) with respect to such Shares, (b) 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 book-entry transfers, an Agent's Message (as defined in the Offer to
Purchase)), and (c) any other documents required by the Letter of
Transmittal. Accordingly, payment may not be made to all tendering
stockholders at the same time depending upon when Certificates are actually
received by the Depositary.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal (or a manually signed facsimile thereof) and any
required signature guarantees (or, in the case of book-entry transfers, an
Agent's Message), and any other required documents should be sent to the
Depositary and (ii) either Certificates representing the tendered Shares or a
timely Book-Entry Confirmation (as defined in the Offer to Purchase) should be
delivered to the Depositary in accordance with the instructions set forth in the
Letter of Transmittal and the Offer to Purchase.
If holders of Shares wish to tender their Shares, but it is impracticable
for them to forward the Certificates for such Shares or other required documents
or complete the procedures for book-entry transfer prior to the Expiration Date,
a tender may be effected by following the guaranteed delivery procedures
specified in Section 2 of the Offer to Purchase.
<PAGE>
The Company will not pay any fees or commissions to any broker or dealer or
other person (other than the Information Agent or the Depositary, as described
in the Offer to Purchase) for soliciting tenders of Shares pursuant to the
Offer. The Company will, however, upon request, reimburse you for customary
mailing and handling expenses incurred by you in forwarding any of the enclosed
materials to your clients. The Company will pay or cause to be paid any stock
transfer taxes payable on the transfer of the Shares to it, except as otherwise
provided in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed
to, and additional copies of the enclosed materials may be obtained from,
ChaseMellon Shareholder Services, L.L.C., the Information Agent for the Offer,
or the undersigned at their respective addresses and telephone numbers set forth
on the back cover of the Offer to Purchase.
Very truly yours,
ChaseMellon Shareholder Services, L.L.C.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON AS AN AGENT OF THE COMPANY, THE INFORMATION AGENT, THE
DEPOSITARY OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON
TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION
WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS
CONTAINED THEREIN.
<PAGE>
Exhibit (a)(5)
Offer to Purchase for Cash
Up to 1,000,000 Shares of Common Stock
of
Virbac Corporation
(Formerly Agri-Nutrition Group Limited)
at
$3.00 Net Per Share
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK TIME, ON
MONDAY, APRIL 19, 1999, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated March 18,
1999 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") and other materials relating to the Offer to purchase shares of common
stock, par value $0.01 per share (the "Shares"), of Virbac Corporation, a
Delaware corporation (formerly Agri-Nutrition Group Limited) (the "Company"), at
a purchase price of $3.00 per Share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer. Holders of Shares whose
certificates for such Shares (the "Certificates") are not immediately available
or who cannot deliver their Certificates and all other required documents to the
depositary for the Offer (the "Depositary") or complete the procedures for
book-entry transfer on or prior to the Expiration Date (as defined in the Offer
to Purchase) must tender their Shares according to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase.
We are (or our nominee is) the holder of record of Shares held by us for
your account. A tender of such Shares can be made only by us as the holder of
record and pursuant to your instructions. The Letter of Transmittal accompanying
this letter is furnished to you for your information only and cannot be used by
you to tender Shares held by us for your account.
Accordingly, we request instructions as to whether you wish to have us
tender any or all of the Shares held by us for your account, upon the terms and
subject to the conditions set forth in the Offer.
Your attention is directed to the following:
1. The tender price is $3.00 per Share, net to the seller in cash.
2. The Offer is being made for 1,000,000 Shares.
<PAGE>
3. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares by the Company
pursuant to the Offer. However, federal income tax backup withholding at a
rate of 31% may be required, unless an exemption is provided or unless the
required taxpayer identification information is provided. See Instruction
12 of the Letter of Transmittal.
4. The Offer and withdrawal rights will expire at 5:00 P.M., New York
time, on Monday, April 19, 1999, unless the Offer is extended.
5. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Certificates pursuant to
the procedures set forth in Section 2 of the Offer to Purchase, or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) 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 in the Offer to
Purchase) in connection with a book-entry transfer, and (c) any other
documents required by the Letter of Transmittal. Accordingly, payment may
not be made to all tendering stockholders at the same time depending upon
when Certificates are actually received by the Depositary.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making of
the Offer or acceptance thereof would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer shall be
deemed to be made on behalf of the Company by ChaseMellon Shareholder Services,
L.L.C., the Information Agent of the Offer, or one or more registered brokers or
dealers licensed under the laws of such jurisdictions.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth below. Please forward your instructions to
us in ample time to permit us to submit a tender on your behalf prior to the
Expiration Date.
<PAGE>
Instructions with Respect to the
Offer to Purchase for Cash
1,000,000 Shares of
Common Stock
of
Virbac Corporation
(Formerly Agri-Nutrition Group Limited)
The undersigned acknowledge(s) receipt of your letter, the enclosed Offer
to Purchase, dated March 18, 1999, and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") in connection with the offer to purchase up to 1,000,000 of the
outstanding shares of common stock, par value $0.01 per share (the "Shares"), of
Virbac Corporation, a Delaware corporation (formerly Agri-Nutrition Group
Limited) (the "Company").
This will instruct you to tender to the Company the number of Shares
indicated below (or if no number is indicated below, all Shares) which are held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Number of Shares to be Tendered:
Date:
SIGN HERE
Signature(s):
Print Name(s):
Print Address(es):
Area Code and Telephone Number(s):
Taxpayer Identification or Social Security Number(s):
THIS FORM MUST BE RETURNED TO THE BROKERAGE FIRM MAINTAINING YOUR ACCOUNT.
<PAGE>
Exhibit (a)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the Payer.
Social Security numbers have nine digits separated by two hyphens: e.g.,
000-00-0000. Employer Identification numbers have nine digits separated by only
one hyphen: e.g., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
Give the
Give the EMPLOYER
For this type of account: SOCIAL SECURITY IDENTIFICATION
number of -- For this type of account: number of --
- --------------------------------- -------------------------------- -------------------------------- ----------------------------
<S> <C> <C> <C>
1. Individual The individual 6. Sole proprietorship The owner(3)
2. Two or more individuals The actual owner of the account 7. A valid trust, estate, or The legal entity (Do not
(joint account) or, if combined funds, the first pension trust furnish the identifying number
individual on the account(1) of the personal representative
or trustee unless the legal
entity itself is not designated
in the account title.)(4)
3. Custodian account of a The minor(2) 8. Corporate The corporation
minor (Uniform Gift to
Minors Act)
4. a. The usual revocable The grantor-trustee(1) 9. Association, club, The organization
savings trust (grantor religious, charitable,
is also trustee) educational or other tax-
exempt organization
b. So-called trust The actual owner(1) 10. Partnership The partnership
account that is not a
legal or valid trust
under state law
5. Sole proprietorship The owner(3) 11. A broker or registered The broker or nominee
nominee
12. Account with the The public entity
Department of Agriculture
in the name of public
entity (such as a state or
local government, school
district, or prison) that
receives agriculture
program payments
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the name of the owner.
(4) List first and circle the name of the legal trust, estate, or pension
trust.
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
Section references are to the Internal Revenue Code.
Obtaining a Number
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service (the "IRS") and
apply for a number.
Payees Exempt from Backup Withholding
The following is a list of payees generally exempt from backup withholding. For
interest and dividends, all listed payees are exempt except the payee listed in
item (9). For broker transactions, payees listed in items (1) through (13) and a
person registered under the Investment Advisors act of 1940 who regularly acts
as a broker are exempt. Payments subject to reporting under sections 6041 and
6041A are generally exempt from backup withholding only if made to payees listed
in items (1) through (7), except that a corporation that provides medical and
health care services or bills and collect payments for such services is not
exempt from backup withholding. Only payees described in items (2) through (6)
are exempt from backup, withholding for barter exchange transactions, patronage
dividends, and payments by certain fishing boat operators.
(1) A corporation.
(2) an organization exempt from tax under section 501(a), an individual
retirement plan ("IRA"), or a custodial account under section 403(b)(7), if
the account satisfies the requirements of section 401(f)(2).
(3) The United States or any of its agencies or instrumentalities.
(4) A State, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States.
(9) A futures commission merchant registered with the Commodity Futures Trading
Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the Investment
Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in the
most recent publication of the American Society of Corporate Secretaries,
Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
Payments Exempt from Backup Withholding
Payments of dividends and patronage dividends generally not
subject to backup withholding also include the following:
o Payments to nonresident aliens subject to withholding under
section 1441.
o Payments to partnerships not engaged in a trade or business in the United
States and that have at least one nonresident alien partner.
o Payments of patronage dividends not paid in money.
o Payments made by certain foreign organizations.
o Section 404(k) payments made by an ESOP.
Payments of interest generally not subject to backup withholding
include the following:
o Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this
interest is $600 or more and is paid in the course of the
payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
o Payments of tax-exempt interest (including exempt interest
dividends under section 852).
o Payments described in section 6049(b)(5) to nonresident
aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details see sections 6041, 6041, 6042, 6044, 6045, 6049,
6050A and 6050N, and the regulations under such sections.
Privacy Act Notice
Section 6109 requires you to give your correct taxpayer identification number to
persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid, the
acquisition or abandonment of secured property, cancellation of debt, or
contributions you made to an IRA. The IRS uses the numbers for identification
purposes and to help verify the accuracy of your tax return. You must provide
your taxpayer identification number
<PAGE>
whether or not you are qualified to file a tax return. Payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding. If you make
a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
(3) Criminal Penalty for Falsifying Information. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT
YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE
<PAGE>
Exhibit (c)
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement, dated as of February 8, 1999, among Virbac
S.A., a French corporation ("VBSA"), and the stockholders of Agri-Nutrition
Group Limited who have executed this agreement (the "AGNU Stockholders" with
each being referred to herein as a "Stockholder").
WHEREAS, Agri-Nutrition Group Limited ("AGNU") has entered into that
Agreement and Plan of Merger with VBSA and Virbac, Inc., a Delaware corporation
and subsidiary of VBSA ("Virbac"), dated as of October 16, 1998, as amended by
the First Amendment to Agreement and Plan of Merger, dated as of November 20,
1998, among AGNU, VBSA and Virbac (the "Merger Agreement"), which Merger
Agreement sets forth the terms and conditions of the merger of Virbac with and
into AGNU (the "Merger");
WHEREAS, each of the Stockholders beneficially owns the number of shares
set forth opposite his or her name on Exhibit A to this Stockholders' Agreement.
The shares of AGNU Common Stock described in the preceding sentence together
with any other voting or equity securities of AGNU of which the Stockholders
acquire beneficial ownership after the date of this Stockholders' Agreement but
prior to the consummation of the Merger are referred to herein collectively as
the "Shares." Each Stockholder is entitled to vote the Shares beneficially owned
by the Stockholder, and no Stockholder has entered into any voting arrangement
with respect to the Shares except as provided in this Stockholders' Agreement or
granted any proxy with respect to any of the Shares;
WHEREAS, in connection with the Merger Agreement, each of the
Stockholders is willing to agree, to (i) vote the Shares owned by such
Stockholder for the adoption of the Merger Agreement and the approval of the
Merger and the other transactions contemplated by the Merger Agreement subject
to the conditions set forth herein, and (ii) the other matters provided for in
this Stockholders' Agreement, upon the terms and subject to the conditions set
forth herein;
WHEREAS, pursuant to Section 8.1 of the Merger Agreement, the surviving
corporation in the Merger (the "Surviving Corporation") has agreed to make and
complete a tender offer (the "Tender Offer") to repurchase 1,000,000 of the
issued and outstanding shares of AGNU Common Stock, par value $.01 per share
("Common Stock"), at a price of $3.00 per share;
WHEREAS, upon consummation of the Merger and the Tender Offer, VBSA will
indirectly own 60% of the outstanding shares of AGNU Common Stock and VBSA
desires assurance that at least 1,000,000 shares of AGNU Common Stock are
tendered in the Tender Offer; and
WHEREAS, the AGNU Stockholders are willing in the event that at least
1,000,000 shares of AGNU Common Stock are not tendered by the Stockholders of
AGNU in the Tender Offer to provide sufficient shares to the Surviving
Corporation so that the entire 1,000,000 shares will be tendered.
NOW, THEREFORE, in consideration of the premises and agreements contained
in this Stockholders' Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
<PAGE>
1. Defined Terms. Capitalized terms used in this Stockholders' Agreement
will, unless otherwise defined in this Stockholders' Agreement, have the
meanings assigned to them in the Merger Agreement.
2. Voting Agreement.
(a) AGNU Stockholders Meeting. Subject to Section 2(c) hereof, at the
AGNU Stockholders Meeting or any meeting of the stockholders of AGNU, however
called, and in any action by consent of the stockholders of AGNU, each of the
Stockholders will vote all of the Shares beneficially owned by such Stockholder
and entitled to vote (i) for approval of the Merger Agreement and the other
transactions contemplated by the Merger Agreement, (ii) for approval of the
amendment to the AGNU Restated Certificate of Incorporation (the "Certificate
Amendment") to increase the number of authorized shares of AGNU Common Stock
from 20,000,000 shares to 38,000,000 shares, (iii) against any action or
agreement that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of AGNU under the Merger Agreement or
may result in any of the conditions to AGNU's obligations under the Merger
Agreement not being fulfilled and (iv) in favor of any other matter necessary to
consummate the transactions contemplated by the Merger Agreement and considered
and voted upon by the stockholders of AGNU.
(b) Other Actions. Subject to Section 2(c) hereof, the Stockholders will
not solicit, encourage or recommend to other holders of AGNU Common Stock that
those holders (i) vote their shares of AGNU Common Stock or any other securities
of AGNU in any manner that would, directly or indirectly, impede or adversely
effect stockholder approval of the Merger Agreement and the other transactions
contemplated by the Merger Agreement or the Certificate Amendment, (ii) at the
AGNU Stockholders Meeting, abstain from voting, or otherwise fail to vote, their
shares of AGNU Common Stock, (iii) sell, transfer, tender or otherwise dispose
of their shares of AGNU Common Stock or (iv) exercise any dissenters' appraisal
or other similar rights, if any.
(c) Limitation on Obligations. The obligations under Sections 2(a) and
2(b) of each Stockholder who is a director or officer of AGNU are subject to his
obligation to faithfully discharge his duties as a director or an officer of
AGNU; provided, however, if AGNU has not terminated the Merger Agreement
pursuant to Section 10.1(g) of the Merger Agreement or if Virbac has not
terminated the Merger Agreement pursuant to Section 10.1(f) of the Merger
Agreement, each such Stockholder will vote his Shares in accordance with
Sections 2(a) and 2(b).
3. Agreement to Tender Common Stock. In the event that fewer than
1,000,000 shares of Common Stock are tendered by the stockholders of AGNU in the
Tender Offer, the AGNU Stockholders hereby agree that they will tender shares of
Common Stock equaling the difference between 1,000,000 shares and the amount
actually tendered.
4. Amount of Common Stock to be Tendered. In the event that five business
days prior to the expiration date of the Tender Offer the AGNU Stockholders have
not reached an agreement as to the number of shares that each Stockholder will
tender to the Surviving Corporation, then each Stockholder will tender his/its
shares on a pro rata basis in proportion to the amount of shares held by each
Stockholder on the expiration date of the Tender Offer, excluding any shares
accepted for tender in the Tender Offer.
5. Share Ownership. Each Stockholder represents and warrants to VBSA
that, as of the date of this Stockholders' Agreement, the Shares set forth
opposite such stockholder's name on Exhibit A to this Stockholders' Agreement
constitute all of the shares of AGNU Common Stock beneficially owned by such
stockholder and such Shares are owned free and clear of any Liens.
<PAGE>
6. No Other Obligations or Liabilities. The execution of this
Stockholders' Agreement by the AGNU Stockholders will not have the effect of
creating any obligations or liabilities other than those expressly set forth
herein.
7. Miscellaneous.
(a) Counterparts. This Stockholders' Agreement may be executed and
delivered in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed and delivered will be deemed
to be an original but all of which taken together constitute one and the same
agreement.
(b) Governing Law. This Stockholders' Agreement is governed by, and
construed in accordance with, the laws of the State of Delaware without giving
effect to applicable principles of conflicts of law.
(c) Entire Agreement. This Stockholders' Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Stockholders'
Agreement as of the date first above written.
VIRBAC, S.A.
By: /s/ Pascal Boissy
Name: Pascal Boissy
Title: President
AGNU STOCKHOLDERS:
Durvet/PMR, L.P.
By: Durvet, Inc. its general partner
By: /s/ Robert E. Hormann
Name: Robert E. Hormann
Title: President
/s/ W.M. Jones, Jr.
W.M. Jones, Jr.
/s/ Bruce G. Baker
Bruce G. Baker
/s/ Robert W. Schlutz
Robert W. Schlutz
/s/ Alec L. Poitevint, II
Alec. L. Poitevint, II
/s/ Robert E. Hormann
Robert E. Hormann
/s/ Robert J. Elfanbaum
Robert J. Elfanbaum
<PAGE>
EXHIBIT A
SHARE OWNERSHIP
Stockholder Number of Shares Beneficially Owned
Durvet/PMR, L.P. 1,240,000
W.M. Jones, Jr. 667,107
Bruce G. Baker 618,291
Robert W. Schlutz 485,280
Alec. L. Poitevint, II 408,844
Robert E. Hormann 228,427
Robert J. Elfanbaum 102,375
