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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1F
TENDER OFFER STATEMENT
PURSUANT TO RULE 14d-1(b)
UNDER THE
SECURITIES EXCHANGE ACT OF 1934
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NOMA INDUSTRIES LIMITED
(Name of Subject Company)
ONTARIO, CANADA
(Jurisdiction of Subject Company's Incorporation or Organization)
THE GENERAL CHEMICAL GROUP INC.
(Bidder)
CLASS A NON-VOTING SHARES AND CLASS B
SHARES OF CAPITAL STOCK
(Title of Class of Securities)
CLASS A NON-VOTING SHARES: 655316305 CLASS B SHARES: 655316404
(CUSIP Number of Class of Securities (if applicable))
TODD M. DUCHENE, ESQ.
THE GENERAL CHEMICAL GROUP INC.
LIBERTY LANE
HAMPTON, NH 03842
TELEPHONE: (603) 926-5911
(Name, address and telephone number of person(s) authorized to receive notices
and communications on behalf of bidder)
MARCH 11, 1999
(Date tender offer first published, sent or given to securityholders)
COPIES TO:
WILLIAM V. BUCCELLA, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MA 02109
TELEPHONE: (617) 570-1000
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CALCULATION OF FILING FEE
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Transaction Valuation Amount of Filing Fee
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US $1,024,823.70(1) US $205.00(1)
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(1) The fee has been calculated pursuant to the instructions for Schedule 14D-1F
in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on the basis of an aggregate 166,638 Class Non-Voting A
and Class B shares of capital stock of Noma Industries Limited estimated to be
held by United States residents on March 11, 1999 as reported by the transfer
agent of Noma Industries Limited, and a price per share of Cdn. $9.25 being the
negotiated price per share, as described herein.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: Registration No.: ________________
Filing Party:___________________________________________________________________
Form: Date Filed:_______________________
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PART I
INFORMATION REQUIRED TO BE SENT TO SHAREHOLDERS
ITEM 1. HOME JURISDICTION DOCUMENTS
Document 1: Offer to Purchase for Cash All Outstanding Class A
Non-Voting and Class B Shares of Noma Industries Limited
for Cdn. $9.25 per share by Noma Acquisition Corp. (the
"Offering Circular").
Document 2: Directors' Circular Recommending Acceptance of the Offer
by Noma Acquisition Corp. to Purchase All of the Class A
Shares and Class B Shares of Noma Industries Limited.
Document 3: Letter of Transmittal.
Document 4: Notice of Guaranteed Delivery.
ITEM 2. INFORMATIONAL LEGENDS
Please see cover page of the Offering Circular
PART II
INFORMATION NOT REQUIRED TO BE SENT TO SHAREHOLDERS
(1) Not Applicable.
(2) Not Applicable.
(3) Not Applicable.
PART III
UNDERTAKINGS AND CONSENT TO SERVICE OF PROCESS
1. UNDERTAKINGS
The bidder undertakes to make available, in person or by telephone,
representatives to respond to inquires made by the Commission staff, and to
furnish promptly, when requested to do so by the Commission staff, information
relating to this Schedule or to transactions in said securities.
The bidder undertakes to disclose in the United States, on the same
basis as it is required to make such disclosure pursuant to applicable Canadian
federal and/or provincial or territorial laws, regulations or policies, or
otherwise discloses, information regarding purchases of the issuer's securities
in connection with the cash tender or exchange offer covered by this Schedule.
Such information shall be set forth in amendments to this Schedule.
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PART IV
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: March 11, 1999 THE GENERAL CHEMICAL GROUP INC.
By: /s/ Todd M. DuChene
--------------------------------
Todd M. DuChene
Secretary
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THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. IF YOU HAVE
ANY QUESTIONS AS TO HOW TO DEAL WITH IT, YOU SHOULD CONSULT YOUR PROFESSIONAL
ADVISORS.
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING CLASS A NON-VOTING SHARES AND CLASS B SHARES OF
NOMA INDUSTRIES LIMITED
FOR
CDN $9.25 PER SHARE
BY
NOMA ACQUISITION CORP.
This offer expires at 5:00 p.m. (Toronto time) on March 31, 1999, unless
extended or withdrawn.
THE BOARD OF DIRECTORS OF NOMA INDUSTRIES LIMITED ("NOMA") HAS UNANIMOUSLY
RECOMMENDED THAT YOU ACCEPT THE OFFER AND DEPOSIT YOUR SHARES UNDER THE OFFER.
Henry Thomas Beck, Chairman of Noma, and entities controlled by or related to
him, who collectively own approximately 15.7% of the Class A Non-Voting Shares
and approximately 83.6% of the Class B Shares, have irrevocably agreed to tender
these shares to the offer.
You can accept the offer by depositing your share certificates with a completed
letter of transmittal or by following the procedure for guaranteed delivery. See
Section 2 of the Offer to Purchase, "Manner and Time of Acceptance", contained
in this document. If your shares are registered in the name of a nominee, you
should contact your broker, investment dealer or other nominee for assistance in
depositing your shares.
This offer is conditional on, among other things, at least 66 2/3% of each class
of shares being tendered, or such greater number as may be necessary to entitle
Noma Acquisition Corp. to subsequently acquire all shares not tendered.
Noma Acquisition Corp. is an indirect wholly-owned subsidiary of The General
Chemical Group Inc., a Delaware corporation.
If you have any questions about the offer, you should contact the Depositary or
the Dealer Manager at any of the offices listed on the back page of this
document.
THE DEALER MANAGER IS:
SCOTIAMCLEOD INC.
THE DEPOSITARY IS:
MONTREAL TRUST COMPANY OF CANADA
March 10, 1999
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NOTICE TO SHAREHOLDERS IN THE UNITED STATES
The Offer is made for the securities of a foreign issuer and, while the
Offer is subject to Canadian disclosure requirements, the Offeror is permitted,
under a multi-jurisdictional disclosure system adopted by the United States, to
prepare the Offer to Purchase and Circular in accordance with Canadian
disclosure requirements. Investors should be aware that such requirements are
different from disclosure requirements in the United States.
Shareholders should be aware that the purchase and sale of Noma Shares
pursuant to the Offer may have tax consequences both in the United States and
Canada. Such consequences for investors who are resident in, or citizens of, the
United States may not be described fully herein.
The enforcement by investors of civil liabilities under United States
federal securities laws may be affected adversely by the facts that the Offeror
is incorporated and organized pursuant to the Business Corporations Act
(Ontario), that some or all of its officers and directors may be residents of a
foreign country, that the Dealer Manager and the experts named in the Offer to
Purchase or Circular may be residents of a foreign country, and that all or a
substantial portion of the assets of the Offeror and of said persons may be
located outside the United States. The enforcement by investors of civil
liabilities under United States federal securities laws may also be affected
adversely by the facts that Noma is located in Canada and that some or all of
its officers and directors are residents of Canada, and that all or a
substantial portion of the assets of Noma may be located outside the United
States.
Investors should be aware that the Offeror or its affiliates, directly or
indirectly, may bid for or make purchases of Noma Shares during the period of
the Offer, as permitted by applicable laws or regulations of Canada or its
provinces or territories.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY ANY SECURITIES
REGULATORY AUTHORITY NOR HAS ANY SECURITIES REGULATORY AUTHORITY PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION OR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
This document does not constitute an offer or a solicitation to any person
in any jurisdiction in which such offer or solicitation is unlawful. The Offer
is not being made to, nor will deposits be accepted from or on behalf of,
holders of Noma Shares in any jurisdiction in which the making or acceptance
thereof would not be in compliance with the laws of such jurisdiction. However,
the Offeror may, in its sole discretion, take such action as it may deem
necessary to extend the Offer to holders of Noma Shares in any such
jurisdiction.
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TABLE OF CONTENTS
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GLOSSARY....................................... 3
SUMMARY........................................ 5
OFFER TO PURCHASE.............................. 8
1. THE OFFER................................. 8
2. MANNER AND TIME OF ACCEPTANCE............. 8
Acceptance of Offer....................... 8
Procedure for Guaranteed Delivery......... 8
Procedure for Holdco Alternative.......... 9
General................................... 9
Power of Attorney......................... 9
Depositing Shareholders' Representations
and Warranties............................ 9
3. VARIATION OR EXTENSION OF THE OFFER....... 10
4. CONDITIONS................................ 11
5. WITHDRAWAL OF DEPOSITED NOMA SHARES....... 12
6. PAYMENT FOR DEPOSITED NOMA SHARES......... 13
7. RETURN OF NOMA SHARES..................... 13
8. MAIL SERVICE INTERRUPTION................. 14
9. CHANGES IN CAPITALIZATION, DIVIDENDS,
DISTRIBUTIONS AND LIENS................... 14
10. NOTICE.................................... 14
11. MARKET PURCHASES AND SALE OF NOMA
SHARES.................................... 15
12. OTHER TERMS OF THE OFFER.................. 15
CIRCULAR....................................... 17
1. THE OFFEROR AND GENERAL CHEMICAL.......... 17
2. NOMA INDUSTRIES LIMITED................... 17
3. BACKGROUND TO THE OFFER................... 18
4. RECOMMENDATION OF NOMA'S BOARD OF
DIRECTORS................................. 18
5. ACQUISITION AGREEMENT..................... 18
Non-Solicitation.......................... 18
Non-Completion Fee........................ 19
Termination............................... 19
Representations, Warranties and
Covenants................................. 19
6. LOCK-UP AGREEMENTS........................ 20
7. THE HOLDCO ALTERNATIVE.................... 20
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8. PURPOSE OF THE OFFER AND PLANS FOR NOMA... 21
Purpose of the Offer...................... 21
Reconstitution of Noma's Board of
Directors................................. 21
General Chemical's Plans for Noma......... 21
9. ARRANGEMENTS WITH DIRECTORS AND SENIOR
OFFICERS OF NOMA AND OTHERS............... 21
10. PRINCIPAL HOLDERS AND TRADING OF NOMA
SECURITIES................................ 22
11. INFORMATION CONCERNING THE SECURITIES OF
NOMA...................................... 22
Authorized and Outstanding Capital........ 22
Previous Distributions.................... 23
Dividend Policy........................... 23
Price Ranges and Volumes of Trading of the
Noma Shares............................... 23
Effect of the Offer on Markets for the
Noma Shares and Stock Exchange Listing.... 23
12. MATERIAL CHANGES AND OTHER MATERIAL
FACTS..................................... 24
13. SOURCE OF FUNDS........................... 24
14. ACCEPTANCE OF THE OFFER................... 24
15. ACQUISITION OF NOMA SHARES NOT
DEPOSITED................................. 24
Compulsory Acquisition.................... 24
Second Stage Transactions................. 25
Judicial Developments..................... 26
16. CANADIAN FEDERAL INCOME TAX
CONSIDERATIONS............................ 26
Shareholders Resident in Canada........... 27
Shareholders Not Resident in Canada....... 28
17. REGULATORY MATTERS........................ 29
Competition Act........................... 29
Hart-Scott-Rodino Antitrust Improvements
Act of 1976............................... 30
18. SOLICITING DEALER GROUP................... 30
19. DEPOSITARY................................ 31
20. LEGAL MATTERS............................. 31
21. STATUTORY RIGHTS.......................... 31
CONSENT OF COUNSEL............................. 32
APPROVAL AND CERTIFICATE....................... 33
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GLOSSARY
In the Offer to Purchase, Circular, Letter of Transmittal and Notice of
Guaranteed Delivery, the following terms have the following meanings:
"ACQUISITION AGREEMENT" means the acquisition agreement dated February 26,
1999, between the Offeror, General Chemical and Noma;
"AFFILIATE" has the meaning ascribed thereto in the Securities Act
(Ontario), as amended;
"ASSOCIATE" has the meaning ascribed thereto in the Securities Act
(Ontario), as amended;
"BUSINESS DAY" means any day excepting a Saturday, Sunday or statutory or
civic holiday in Toronto, Ontario;
"CIRCULAR" means the take-over bid circular forming part of this document;
"CLASS A SHARES" means the Class A Non-Voting Shares in the capital of
Noma;
"CLASS B SHARES" means the Class B Shares in the capital of Noma;
"COMPULSORY ACQUISITION" has the meaning ascribed thereto under Section 15
of the Circular, "Acquisition of Noma Shares Not Deposited -- Compulsory
Acquisition";
"DEALER MANAGER" means ScotiaMcLeod Inc.;
"DEPOSITARY" means Montreal Trust Company of Canada, at the offices
specified in the Letter of Transmittal;
"DIRECTORS' CIRCULAR" means the accompanying directors' circular prepared
by the board of directors of Noma;
"ELIGIBLE INSTITUTION" means a Canadian chartered bank, a trust company in
Canada, a commercial bank or trust company having an office, branch, agency or
correspondent in the United States, or a member firm of The Toronto Stock
Exchange, the Alberta Stock Exchange, the Montreal Exchange, the Vancouver Stock
Exchange, a national securities exchange in the United States or the National
Association of Securities Dealers, Inc. or a member of a Securities Transfer
Association Medallion (STAMP) Program;
"EXPIRY DATE" means March 31, 1999, unless the Offer is extended, in which
event the Expiry Date shall mean the latest date on which the Offer as so
extended expires;
"EXPIRY TIME" means 5:00 p.m. (Toronto time) on the Expiry Date;
"FULLY DILUTED BASIS" means, with respect to the number of outstanding Noma
Shares at any time, such number of outstanding Noma Shares calculated assuming
that all outstanding Stock Options are exercised;
"GENERAL CHEMICAL" means The General Chemical Group Inc., a corporation
incorporated under the laws of the State of Delaware;
"GENTEK" has the meaning ascribed thereto under Section 8 of the Circular,
"Purpose of the Offer and Plans for Noma -- General Chemical's Plans for Noma";
"HOLDCO" means a single-purpose holding company incorporated after February
26, 1999, which is resident in Canada and a taxable Canadian corporation for
purposes of the Income Tax Act (Canada), in which any corporate Shareholder
disposing of Holdco Shares pursuant to the Holdco Alternative shall have had a
substantial interest, as that term is used in Part VI.l of the Income Tax Act
(Canada), since its incorporation, and which has no assets other than Noma
Shares and no liabilities whatsoever;
"HOLDCO ALTERNATIVE" means the option of a holder of Noma Shares held
indirectly through one or more Holdcos to participate in the Offer by depositing
the Holdco Shares under the Offer for identical consideration as if such Noma
Shares were deposited directly under the Offer, as described under Section 7 of
the Circular, "The Holdco Alternative";
"HOLDCO SHARES" means all the issued and outstanding shares in the capital
of all Holdcos through which a Shareholder's Noma Shares are held;
"LETTER OF TRANSMITTAL" means a letter of transmittal in the form printed
on blue paper accompanying this Offer to Purchase and Circular;
"LOCK-UP AGREEMENTS" means the lock-up undertakings between the Offeror,
General Chemical and shareholders of Noma described under Section 6 of the
Circular, "Lock-Up Agreements";
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"MATERIAL ADVERSE EFFECT" means any condition, event or development which
constitutes, or could reasonably be expected to result in or represent, a
material adverse effect or material adverse change (or any condition, event or
development involving a prospective material adverse effect or material adverse
change) individually or in the aggregate on or in the business, affairs,
operations, assets, capitalization, financial condition, rights, results of
operations or liabilities (including any contingent liabilities that may arise
through outstanding, pending or threatened litigation or otherwise), whether
contractual or otherwise, of Noma and its subsidiaries considered as a whole;
"NOMA" means Noma Industries Limited, a corporation incorporated under the
OBCA;
"NOMA SHARES" means Class A Shares and Class B Shares issued and
outstanding as at the date hereof and includes Class A Shares issuable upon
exercise of Stock Options;
"NOTICE OF GUARANTEED DELIVERY" means a notice of guaranteed delivery in
the form printed on yellow paper accompanying this Offer to Purchase and
Circular;
"OBCA" means the Business Corporations Act (Ontario), as amended;
"OFFER" means the offer to purchase all of the Noma Shares made hereby to
Shareholders, the terms and conditions of which are set forth in the Offer
Documents;
"OFFER DATE" means March 10, 1999, the date of the Offer;
"OFFER DOCUMENTS" means, collectively, the Offer to Purchase, Circular,
Letter of Transmittal and Notice of Guaranteed Delivery;
"OFFEROR" means Noma Acquisition Corp.;
"OFFER PRICE" means $9.25 in cash per Noma Share or such greater amount as
the Offeror may specify as the purchase price per Noma Share under the Offer
pursuant to Section 3 of the Offer to Purchase, "Variation or Extension of the
Offer";
"OFFER TO PURCHASE" means the Offer to Purchase forming part of this
document;
"PERSON" includes an individual, body corporate, partnership, syndicate or
other form of unincorporated association;
"PRINCIPAL VENDORS" means those Shareholders that have entered into Lock-Up
Agreements;
"SECOND STAGE TRANSACTION" has the meaning ascribed thereto under Section
15 of the Circular, "Acquisition of Noma Shares Not Deposited -- Second Stage
Transactions";
"SECURITIES LAWS" means applicable provincial securities laws, rules and
regulations and published policies thereunder;
"SHAREHOLDERS" means holders of Noma Shares;
"SOLICITING DEALER GROUP" means, collectively, the Dealer Manager and the
other members of the soliciting dealer group to be assembled by the Dealer
Manager;
"STOCK OPTION PLANS" means the incentive stock option plan of Noma adopted
effective December 1, 1985, as amended, and the directors' stock option plan of
Noma adopted effective February 16, 1995, as amended;
"STOCK OPTIONS" means the outstanding options to acquire Class A Shares
under the Stock Option Plans; and
"SUBSEQUENT ACQUISITION TRANSACTION" means a Compulsory Acquisition or a
Second Stage Transaction.
In the Offer Documents, words importing the singular number only shall
include the plural and vice versa, and words importing any gender shall include
all genders. The term "including" means "including without limiting the
generality of the foregoing".
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SUMMARY
THE FOLLOWING IS A SUMMARY ONLY AND IS QUALIFIED BY REFERENCE TO THE
DETAILED PROVISIONS OF THE OFFER DOCUMENTS. THE INFORMATION CONCERNING NOMA
CONTAINED IN THE OFFER DOCUMENTS HAS BEEN TAKEN FROM OR IS BASED UPON PUBLICLY
AVAILABLE DOCUMENTS OR RECORDS ON FILE WITH CANADIAN SECURITIES REGULATORY
AUTHORITIES AND OTHER PUBLIC SOURCES AND INFORMATION PROVIDED TO THE OFFEROR BY
NOMA. CERTAIN CAPITALIZED TERMS USED IN THIS SUMMARY ARE DEFINED UNDER
"GLOSSARY". ALL REFERENCES TO "DOLLARS" OR "$" REFER TO CANADIAN DOLLARS UNLESS
OTHERWISE SPECIFIED. SHAREHOLDERS ARE URGED TO READ THE OFFER DOCUMENTS IN THEIR
ENTIRETY.
THE OFFER
The Offeror is offering to purchase, on and subject to the terms and
conditions hereinafter specified, all of the issued and outstanding Noma Shares,
including all Noma Shares which may become outstanding after the date of the
Offer upon the exercise of Stock Options, for $9.25 cash per Noma Share.
AGREEMENT WITH NOMA
The Offer is being made pursuant to the Acquisition Agreement. The
Acquisition Agreement provides for, among other things, the payment by Noma to
General Chemical of a fee of $10,000,000 if certain events occur, including in
the event that the board of directors of Noma withdraws or modifies, in a manner
determined by General Chemical to be adverse to General Chemical or the Offeror,
its recommendation to Shareholders in respect of the Offer.
LOCK-UP AGREEMENTS
The Offeror and General Chemical have entered into Lock-Up Agreements with
the Principal Vendors, including Henry Thomas Beck, Chairman of Noma, whereby
each of the Principal Vendors has irrevocably agreed to deposit to the Offer all
of such Principal Vendor's Noma Shares. The Principal Vendors own or control an
aggregate of 4,794,800 Class A Shares and 4,989,496 Class B Shares, representing
approximately 15.7% of the Class A Shares and 83.6% of the Class B Shares (in
each case calculated on a fully diluted basis). See Section 6 of the Circular,
"Lock-Up Agreements".
RECOMMENDATION OF NOMA'S BOARD OF DIRECTORS
The board of directors of Noma has unanimously recommended that
Shareholders accept the Offer and deposit their Noma Shares under the Offer. The
reasons for the board's recommendation are set out in the Directors' Circular.
Donaldson, Lufkin & Jenrette Securities Corporation, the financial advisor to
the board of directors of Noma, has provided an opinion that the Offer is fair
from a financial point of view to the Shareholders. A copy of that opinion is
included in the Directors' Circular.
MANNER AND TIME OF ACCEPTANCE
The Offer is open for acceptance until, but not later than, the Expiry
Time.
Shareholders wishing to accept the Offer must deposit the certificates
representing their Noma Shares, together with a properly completed and duly
executed Letter of Transmittal or a manually executed facsimile thereof and all
other documents required by the Letter of Transmittal, at any one of the offices
of the Depositary specified in the Letter of Transmittal at or prior to the
Expiry Time. Instructions are contained in the Letter of Transmittal.
Shareholders whose Noma Shares are registered in the name of a nominee should
contact their broker, investment dealer, bank, trust company or other nominee
for assistance in depositing their Noma Shares to the Offer. The offices of the
Depositary will be open during normal business hours.
If a Shareholder is unable to deposit certificates representing his Noma
Shares in a timely manner, such Shareholder may accept the Offer by following
the procedure for guaranteed delivery set forth under Section 2 of the Offer to
Purchase, "Manner and Time of Acceptance -- Procedure for Guaranteed Delivery".
The Offer may also be accepted by following the procedure for the Holdco
Alternative. See Section 2 of the Offer to Purchase, "Manner and Time of
Acceptance -- Procedure for Holdco Alternative", and Section 7 of the Circular,
"The Holdco Alternative".
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CONDITIONS
The Offer is conditional upon, among other things, there being validly
deposited under the Offer and not withdrawn at least 66 2/3% of the Class A
Shares and 66 2/3% of the Class B Shares (in each case calculated on a fully
diluted basis) plus such additional number of Noma Shares, if any, as is
required in order to ensure that the Offeror will be entitled under the OBCA and
the Securities Laws to effect a Subsequent Acquisition Transaction. See Section
4 of the Offer to Purchase, "Conditions".
GENERAL CHEMICAL AND THE OFFEROR
General Chemical is a Delaware corporation headquartered in Hampton, New
Hampshire. General Chemical is a diversified manufacturing company which
produces automotive components, fluid-handling equipment and performance and
industrial chemicals. General Chemical is a publicly traded company registered
with the United States Securities and Exchange Commission and listed and traded
on the New York Stock Exchange (symbol: GCG).
The Offeror is an indirect wholly-owned subsidiary of General Chemical
which has been incorporated for the purpose of making the Offer. The Offeror has
not otherwise carried on any material business activity. See Section 1 of the
Circular, "The Offeror and General Chemical".
NOMA
Noma is involved in the design, engineering and manufacturing of insulated
copper wire and wire-related products. The company's products are used by a wide
range of manufacturers in the automotive, appliance and electronic component
industries. The corporate headquarters of Noma is in Toronto, Ontario. Noma has
approximately 4,200 employees, and has operations in Canada, the United States
and Mexico. The Class A Shares and Class B Shares are listed and traded on The
Toronto Stock Exchange (symbols: NMA.A and NMA.B, respectively).
PAYMENT
Subject to the terms and conditions of the Offer, if all the conditions
referred to under Section 4 of the Offer to Purchase, "Conditions", have been
satisfied or waived by the Offeror, the Offeror will accept for payment, and
will take up and pay for, all Noma Shares validly deposited under the Offer and
not withdrawn as soon as practicable in the circumstances and in any event
within 3 business days thereafter. See Section 6 of the Offer to Purchase,
"Payment for Deposited Noma Shares".
PURPOSE OF THE OFFER AND PLANS REGARDING THE ACQUISITION OF NOMA SHARES NOT
DEPOSITED
The purpose of the Offer is to enable the Offeror to acquire, directly or
indirectly, all of the Noma Shares. If the Offeror acquires at least 90% of the
issued and outstanding Class A Shares or Class B Shares, on a fully diluted
basis, the Offeror currently intends to acquire the remaining Noma Shares of
such class pursuant to the compulsory acquisition procedures contained in
section 188 of the OBCA on the same terms on which the Offeror acquired Noma
Shares of such class pursuant to the Offer. If the Offer is successful but the
Offeror acquires less than 90% of the issued and outstanding Noma Shares of a
class, the Offeror currently intends to pursue a Second Stage Transaction to
acquire the Noma Shares of such class not tendered to the Offer for
consideration equal to the Offer Price. See Section 15 of the Circular,
"Acquisition of Noma Shares Not Deposited".
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
A Canadian resident Shareholder who holds Noma Shares as capital property
and disposes of such Noma Shares pursuant to the Offer will realize a capital
gain (or capital loss) to the extent that the Offer Price, net of any reasonable
costs of disposition, exceeds (or is less than) the Shareholder's adjusted cost
base of the Noma Shares. See Section 16 of the Circular, "Canadian Federal
Income Tax Considerations -- Shareholders Resident in Canada".
A non-resident Shareholder who holds Noma Shares as capital property will
only be subject to tax under the Income Tax Act (Canada) on any gain realized on
the disposition of Noma Shares pursuant to the Offer if the Noma Shares are
taxable Canadian property as defined in the Income Tax Act (Canada) and the
Shareholder is not exempt under the provisions of an applicable income tax
convention. See Section 16 of the Circular, "Canadian Federal Income Tax
Considerations -- Shareholders Not Resident in Canada".
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SHAREHOLDERS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS FOR ADVICE
REGARDING THE INCOME TAX CONSEQUENCES TO THEM OF DISPOSING OF THEIR NOMA SHARES
PURSUANT TO THE OFFER.
DEALER MANAGER AND SOLICITING DEALER GROUP
The Offeror has retained the Dealer Manager in connection with the Offer to
form a Soliciting Dealer Group comprising members of the Investment Dealers
Association of Canada and members of Canadian stock exchanges to solicit
acceptances of the Offer.
No brokerage fees or commissions will be payable by any Shareholder who
deposits Noma Shares directly with the Depositary or who uses the services of
the Dealer Manager or a member of the Soliciting Dealer Group to accept the
Offer. See Section 18 of the Circular, "Soliciting Dealer Group".
DEPOSITARY
Montreal Trust Company of Canada is acting as Depositary under the Offer.
The Depositary will receive deposits of certificates representing the Noma
Shares and accompanying Letters of Transmittal at its offices specified in the
Letter of Transmittal. The Depositary will receive Notices of Guaranteed
Delivery at its Toronto office specified therein. The Depositary will be
responsible for giving certain notices, if required, and for making payment for
all Noma Shares purchased by the Offeror under the Offer. See Section 19 of the
Circular, "Depositary".
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OFFER TO PURCHASE
MARCH 10, 1999
TO: HOLDERS OF CLASS A NON-VOTING SHARES AND
CLASS B SHARES OF NOMA INDUSTRIES LIMITED
1. THE OFFER
The Offeror hereby offers to purchase, on and subject to the terms and
conditions hereinafter specified, all of the issued and outstanding Noma Shares,
including all Noma Shares which may become outstanding after the date of the
Offer upon the exercise of the Stock Options, for $9.25 in cash per Noma Share.
The Offer is made only for Noma Shares and is not made for any Stock Options.
Depositing Shareholders will not be obliged to pay brokerage fees or
commissions if they accept the Offer by depositing their Noma Shares directly
with the Depositary or if they use the services of the Dealer Manager or a
member of the Soliciting Dealer Group. See Sections 18 and 19 of the Circular,
"Soliciting Dealer Group" and "Depositary".
THE OFFER DOCUMENTS COLLECTIVELY COMPRISE, ARE INCORPORATED INTO AND FORM
PART OF THE OFFER AND CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ
CAREFULLY BEFORE MAKING A DECISION WITH RESPECT TO THE OFFER.
2. MANNER AND TIME OF ACCEPTANCE
The Offer is open for acceptance until, but not later than, 5:00 p.m.
(Toronto time) on March 31, 1999, or until such later time and date to which the
Offer may be extended by the Offeror at its discretion.
ACCEPTANCE OF OFFER
The Offer may be accepted by delivering to the Depositary at any of the
offices listed in the Letter of Transmittal so as to arrive there not later than
the Expiry Time:
(a) the certificate or certificates representing the Noma Shares in respect
of which the Offer is being accepted;
(b) the Letter of Transmittal, or a manually signed facsimile thereof,
properly completed and duly executed as required by the instructions
set out in the Letter of Transmittal; and
(c) all other documents required by the instructions set out in the Letter
of Transmittal.
In lieu of depositing certificates, Noma Shares may be deposited in
compliance with the procedure for guaranteed delivery as set forth below.
If required by the Letter of Transmittal, the signature on the Letter of
Transmittal must be guaranteed by an Eligible Institution. If a Letter of
Transmittal is executed by a person other than the registered holder of the
certificate(s) deposited with it, the certificate(s) must be endorsed or be
accompanied by an appropriate securities transfer power duly and properly
completed by the registered holder, with the signature on the endorsement panel
or securities transfer power guaranteed by an Eligible Institution.
PROCEDURE FOR GUARANTEED DELIVERY
If a Shareholder wishes to deposit Noma Shares pursuant to the Offer and
(i) the certificates representing such Noma Shares are not immediately
available, or (ii) such Shareholder cannot deliver the certificates and all
other required documents to the Depositary at or prior to the Expiry Time, such
Noma Shares may nevertheless be deposited pursuant to the Offer provided that
all of the following conditions are met:
(a) such deposit is made by or through an Eligible Institution;
(b) a properly completed and duly executed Notice of Guaranteed Delivery,
or a manually signed facsimile thereof, is received by the Depositary
at its principal office in Toronto (by hand, mail, courier or facsimile
transmission) not later than the Expiry Time; and
(c) the certificate(s) representing deposited Noma Shares, in proper form
for transfer, together with a properly completed and duly executed
Letter of Transmittal, or a manually signed facsimile thereof, relating
to the Noma Shares and all other documents required by the Letter of
Transmittal are received by the Depositary at its principal office in
Toronto at or before 5:00 p.m. (Toronto time) on the third trading day
on The Toronto Stock Exchange after the Expiry Date.
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<PAGE> 10
THE NOTICE OF GUARANTEED DELIVERY MUST BE DELIVERED BY HAND, MAIL, COURIER
OR FACSIMILE TRANSMISSION TO THE DEPOSITARY AT ITS PRINCIPAL OFFICE IN TORONTO
DURING NORMAL BUSINESS HOURS NOT LATER THAN THE EXPIRY TIME AND MUST INCLUDE A
GUARANTEE BY AN ELIGIBLE INSTITUTION IN THE FORM SET FORTH IN THE NOTICE OF
GUARANTEED DELIVERY.
PROCEDURE FOR HOLDCO ALTERNATIVE
A corporate Shareholder which holds Noma Shares indirectly through one or
more Holdcos will be permitted to participate in the Offer by depositing its
Holdco Shares under the Offer for identical consideration as if such Noma Shares
were deposited directly under the Offer. See Section 7 of the Circular, "The
Holdco Alternative". A corporate Shareholder wishing to utilize the Holdco
Alternative must provide the Offeror with a written request, in a timely manner,
and be prepared to provide the Offeror with the same representations and
indemnities in connection with the Holdco Alternative as are being provided to
the Offeror and General Chemical by the Principal Vendors pursuant to the
Lock-Up Agreements.
If a corporate Shareholder chooses to use the Holdco Alternative, such
Shareholder will thereby dispose of the entire direct interest in each of its
Holdcos and its entire indirect interest in its Shares as a result of the sale
of the Holdco Shares to the Offeror, and each such Holdco will become a
wholly-owned subsidiary of the Offeror. A valid deposit of Holdco Shares under
the Offer will constitute an acceptance of the Offer.
The procedures described above for the deposit of Noma Shares by means of a
Letter of Transmittal or a Notice of Guaranteed Delivery cannot be used to
deposit Holdco Shares under the Offer.
GENERAL
In all cases, payment for Noma Shares deposited and taken up by the Offeror
will be made only after the timely receipt of the certificates representing the
Noma Shares, and either: (i) a properly completed and duly executed Letter of
Transmittal or manually signed facsimile thereof; or (ii) due compliance with
the procedure applicable to the Holdco Alternative.
THE METHOD OF DELIVERY OF THE LETTER OF TRANSMITTAL, CERTIFICATES
REPRESENTING THE NOMA SHARES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION
AND RISK OF THE PERSON DEPOSITING THE SAME. THE OFFEROR RECOMMENDS THAT SUCH
DOCUMENTS BE DELIVERED BY HAND TO THE DEPOSITARY AND A RECEIPT OBTAINED FOR
THEM. HOWEVER, IF SUCH DOCUMENTS ARE MAILED, THE OFFEROR RECOMMENDS THAT
REGISTERED MAIL, WITH RETURN RECEIPT REQUESTED, BE USED AND THAT PROPER
INSURANCE BE OBTAINED.
SHAREHOLDERS WHOSE NOMA SHARES ARE REGISTERED IN THE NAME OF A NOMINEE
SHOULD CONTACT THEIR BROKER, INVESTMENT DEALER, BANK, TRUST COMPANY OR OTHER
NOMINEE FOR ASSISTANCE IN DEPOSITING THEIR NOMA SHARES TO THE OFFER.
POWER OF ATTORNEY
The execution of a Letter of Transmittal irrevocably constitutes and
appoints the Depositary and any officer of the Offeror, and each of them, and
any other person designated by the Offeror in writing, as the true and lawful
agent, attorney and attorney-in-fact and proxyholder of the holder of the Noma
Shares covered by the Letter of Transmittal and with respect to any and all
dividends, distributions, payments, securities, rights, assets or other
interests declared, paid, issued, distributed, made or transferred on or in
respect of such Noma Shares on or after the Offer Date. The power of attorney is
granted irrevocably upon execution of the Letter of Transmittal and is effective
on and after the date that the Offeror takes up and pays for Noma Shares under
the Offer. A holder who executes a Letter of Transmittal covenants to execute,
upon request, any additional documents, transfers and other assurances as may be
necessary or desirable to complete the sale, assignment and transfer of Noma
Shares to the Offeror in accordance with the terms of the Offer.
DEPOSITING SHAREHOLDERS' REPRESENTATIONS AND WARRANTIES
All Shareholders depositing Noma Shares to the Offer must have full power
and authority to deposit, sell, assign and transfer the Noma Shares to the
Offeror. Shareholders depositing Noma Shares to the Offer must have good title
to their Noma Shares free and clear of all liens, restrictions, charges,
encumbrances, claims and equities. The valid deposit of Noma Shares will
constitute a binding agreement between the depositing Shareholder and the
Offeror upon the terms and subject to the conditions of the Offer, including the
depositing Shareholder's representation and warranty that: (i) such person has
full power and authority to deposit, sell, assign and transfer the
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<PAGE> 11
Noma Shares, and any and all dividends, distributions, payments, securities,
rights, assets or other interests declared, paid, issued, distributed, made or
transferred on or in respect of the Noma Shares on or after the Offer Date
(collectively, the "Interests"), being deposited and has not sold, assigned or
transferred or agreed to sell, assign or transfer any of such Noma Shares to any
other person; (ii) when such Noma Shares (and any Interests) are taken up and
paid for by the Offeror, the Offeror will acquire good title thereto, free and
clear of all liens, restrictions, charges, encumbrances, claims and rights of
third parties whatsoever; (iii) such Shareholder depositing the Noma Shares, or
on whose behalf such Noma Shares are being deposited, has good title to and is
the beneficial owner of the Noma Shares (and any Interests) being deposited
within the meaning of applicable securities laws; and (iv) the deposit of such
Noma Shares (and any Interests) complies with applicable securities laws.
All questions as to the validity, form, eligibility (including timely
receipt) and acceptance of any Noma Shares and accompanying documents deposited
pursuant to the Offer will be determined by the Offeror in its sole discretion.
Depositing Shareholders agree that such determination shall be final and
binding. The Offeror reserves the absolute right to reject any and all deposits
which the Offeror determines not to be in proper form or which may be unlawful
to accept under the laws of any jurisdiction. The Offeror reserves the absolute
right to waive any defect or irregularity in any deposit of any Noma Shares and
accompanying documents. There shall be no duty or obligation on the Offeror, the
Dealer Manager, members of the Soliciting Dealer Group, the Depositary or any
other person to give notice of any defect or irregularity in any deposit, and no
liability shall be incurred by any of them for failure to give any such notice.
The Offeror reserves the right to permit the Offer to be accepted in a manner
other than that set out above.
3. VARIATION OR EXTENSION OF THE OFFER
Subject to the terms of the Acquisition Agreement, the Offeror may, in its
sole discretion, at any time and from time to time prior to the Expiry Time (or
otherwise as permitted by law), vary the terms of the Offer (which variation may
include an extension of the Expiry Time) by written notice or other
communication confirmed in writing to the Depositary at its principal office in
Toronto, Ontario. The Acquisition Agreement provides that the Offeror will not
vary the terms of the Offer other than to increase the consideration offered for
the Noma Shares, to extend the period during which Noma Shares may be deposited
to the Offer, to waive any condition of the Offer set forth under Section 4 of
this Offer to Purchase, "Conditions", or to comply with Securities Laws.
If the terms of the Offer are varied, the Offeror will thereafter, except
as otherwise required or permitted by law, cause the Depositary to give a
written notice of variation (a "Notice of Variation"), to all registered
Shareholders whose Noma Shares have not been taken up prior to such variation in
the manner indicated under Section 10 of this Offer to Purchase, "Notice", and
the Offeror shall as soon as practicable make a public announcement of the
variation and provide a copy of the Notice of Variation to The Toronto Stock
Exchange. Any Notice of Variation will be deemed to have been given and to be
effective on the day on which it is delivered to the Depositary at its principal
office in Toronto, Ontario.
Where the terms of the Offer are varied, except for a variation consisting
solely of a waiver of a condition provided for under Section 4 of this Offer to
Purchase, "Conditions", the Offer will not expire before 10 days after the
Notice of Variation in respect of such variation has been mailed to
Shareholders. Subsequent to any such variation in the terms of the Offer, all
Noma Shares previously deposited and not withdrawn will remain subject to the
Offer and may be taken up by the Offeror, subject to Section 5 of this Offer to
Purchase, "Withdrawal of Deposited Noma Shares".
If the Offer Price for the Noma Shares is increased, the increased price
will be paid to all Shareholders whose Noma Shares are taken up pursuant to the
Offer, irrespective of whether such Noma Shares were taken up before the
variation.
A variation of the Offer shall not constitute a waiver by the Offeror of
any of its rights under Section 4 of this Offer to Purchase, "Conditions",
except to the extent expressly provided in the Notice of Variation.
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<PAGE> 12
4. CONDITIONS
The Offeror reserves the absolute right to withdraw or terminate the Offer
and not take up and pay for, or to extend the period of time during which the
Offer is open and postpone taking up and paying for, any Noma Shares deposited
under the Offer unless all of the following conditions are satisfied or waived
by the Offeror prior to the Expiry Time:
(a) there shall have been validly deposited under the Offer and not
withdrawn at least 66 2/3% of the Class A Shares and 66 2/3% of the
Class B Shares (in each case calculated on a fully diluted basis) plus
such additional number of Noma Shares, if any, as is required in order
to ensure that the Offeror will be entitled under the OBCA and the
Securities Laws to effect a Subsequent Acquisition Transaction and
provided that, in any event, if less than 90% of the outstanding Noma
Shares of either class shall have been validly deposited under the
Offer, there shall have been validly deposited under the Offer a
majority of the Noma Shares of such class owned by Shareholders other
than the Principal Vendors;
(b) there shall not have occurred or, if there shall have previously
occurred, there shall not have been disclosed generally or in writing
to the Offeror prior to the Offer Date, any Material Adverse Effect;
(c) all requisite governmental or regulatory consents or approvals to
enable the Offeror to acquire Noma Shares pursuant to the Offer or a
Subsequent Acquisition Transaction shall have been received on terms
and conditions satisfactory to the Offeror, acting reasonably;
(d) an advance ruling certificate shall have been issued under section 102
of the Competition Act (Canada) in respect of the acquisition of Noma
Shares under the Offer or the applicable waiting period under section
123 of such Act shall have expired and no proceedings shall have been
taken or threatened under Part VI or under the merger provisions of
Part VIII of such Act in respect of the Offer;
(e) any applicable waiting periods under the United States
Hart-Scott-Rodino Antitrust Improvements Act of 1976 shall have expired
or been earlier terminated;
(f) (i) no judgment, order, writ, injunction, decree, determination or
award shall have been issued by any domestic or foreign arbitrator,
court or tribunal or any governmental agency or other regulatory
authority or any administrative agency or commission or any elected or
appointed public official, (ii) no action, suit or proceeding shall
have been taken or threatened before or by any domestic or foreign
arbitrator, court or tribunal or any governmental agency or other
regulatory authority or any administrative agency or commission or any
elected or appointed public official or private person (including any
individual, corporation, firm, group or other entity) in Canada or
elsewhere and (iii) no law, regulation or policy shall have been
proposed, enacted, promulgated or applied, whether or not having the
force of law:
(A) to cease trade, enjoin, prohibit or impose material limitations or
conditions on the purchase by or the sale to the Offeror of the Noma
Shares or the right of the Offeror to own or exercise full rights of
ownership of the Noma Shares,
(B) which, if Noma Shares are acquired pursuant to the Offer, would have
a Material Adverse Effect, or
(C) which would adversely affect the Offeror's ability to acquire Noma
Shares pursuant to a Subsequent Acquisition Transaction;
(g) there shall not have occurred any actual change (including a proposal
by the Minister of Finance of Canada to amend the Income Tax Act
(Canada) or regulations thereunder) or any publicly stated
administrative practice that directly or indirectly increases
materially the effective tax cost of, or reduces the proceeds from, the
sale or other disposition of any assets or securities owned by Noma or
any of its subsidiaries or that, in the judgment of the Offeror, has or
may have a Material Adverse Effect or a material adverse significance
with respect to the financial condition and prospects of the Offeror or
in relation to the Offer and the transactions contemplated thereby; and
(h) Noma shall not in any material respect be in breach of or default under
the Acquisition Agreement, the representations and warranties of Noma
made in such agreement shall be true and correct in all material
respects and such agreement shall not have been terminated in
accordance with the terms thereof.
The foregoing conditions are for the exclusive benefit of the Offeror. The
Offeror may assert any of the foregoing conditions at any time, regardless of
the circumstances giving rise to such assertion (including the action
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<PAGE> 13
or inaction of the Offeror). The Offeror may waive any of the foregoing
conditions in whole or in part at any time and from time to time, both before
and after the Expiry Time, without prejudice to any other rights which the
Offeror may have. The failure by the Offeror at any time to exercise or assert
any of the foregoing rights shall not be deemed to be a waiver of any such right
and each such right shall be deemed an ongoing right which may be exercised or
asserted at any time. Any determination by the Offeror concerning the foregoing
conditions shall be final and binding on all parties.
Any waiver of a condition or the withdrawal of the Offer shall be effective
upon written notice or other communication confirmed in writing by the Offeror
to that effect to the Depositary at its principal office in Toronto, Ontario.
The Offeror, forthwith after giving any such notice, shall make a public
announcement of such waiver or withdrawal, shall cause the Depositary, if
required by law, as soon as practicable thereafter to notify the Shareholders in
the manner set forth under Section 10 of this Offer to Purchase, "Notice", and
shall provide a copy of the aforementioned notice to The Toronto Stock Exchange.
If the Offer is withdrawn, the Offeror shall not be obligated to take up or pay
for any of the Noma Shares deposited under the Offer, and the Depositary will
promptly return all certificates for deposited Noma Shares, Letters of
Transmittal, Notices of Guaranteed Delivery and related documents to the parties
by whom they were deposited.
Where all the conditions of the Offer set out in this Section 4 of this
Offer to Purchase have been satisfied or waived, the Offeror will forthwith
issue a notice by press release to that effect, which press release will
disclose the approximate number of Noma Shares deposited and that will be taken
up.
5. WITHDRAWAL OF DEPOSITED NOMA SHARES
All deposits of Noma Shares pursuant to the Offer are irrevocable, provided
that any Noma Shares deposited in acceptance of the Offer may be withdrawn at
the place of deposit by or on behalf of the depositing Shareholder (unless
otherwise required or permitted by applicable law):
(a) at any time before the Expiry Time; and
(b) at any time after April 24, 1999 provided that the Noma Shares have not
been taken up and paid for by the Offeror prior to the receipt by the
Depositary of the Notice of Withdrawal (as defined below) in respect of
such Noma Shares.
In order for any withdrawal to be made, notice of the withdrawal ("Notice
of Withdrawal") must be in writing (which includes a telegraphic communication
or notice by electronic means that produces a printed copy) and must be actually
received by the Depositary at the place of deposit of the applicable Noma Shares
(or Notice of Guaranteed Delivery in respect thereof) within the period
permitted for withdrawal. Any such Notice of Withdrawal must be: (i) signed by
or on behalf of the person who signed the Letter of Transmittal that accompanied
the Noma Shares to be withdrawn (or Notice of Guaranteed Delivery in respect
thereof); and (ii) specify such person's name, the number of Noma Shares to be
withdrawn, the name of the registered holder and the certificate number shown on
each certificate representing the Noma Shares to be withdrawn. Any signature on
a Notice of Withdrawal must be guaranteed by an Eligible Institution in the same
manner as in the Letter of Transmittal (as described in the instructions set out
in such Letter of Transmittal), except in the case of Noma Shares deposited for
the account of an Eligible Institution. The withdrawal shall take effect upon
receipt of the written notice by the Depositary.
All questions as to the validity (including timely receipt) and form of any
Notice of Withdrawal shall be determined by the Offeror in its sole discretion
and such determination shall be final and binding. There shall be no duty or
obligation on the Offeror, the Depositary, the Dealer Manager, any member of the
Soliciting Dealer Group or any other person to give notice of any defect or
irregularity in any Notice of Withdrawal, and no liability shall be incurred by
any of them for failure to give any such notice.
If the Offeror extends the Offer, is delayed in taking up and paying for
Noma Shares or is unable to take up and pay for Noma Shares for any reason,
then, without prejudice to the Offeror's other rights, no Noma Shares may be
withdrawn except to the extent that depositing holders thereof are entitled to
withdrawal rights as set forth in this Section 5 of this Offer to Purchase or
pursuant to applicable law, and such Noma Shares may be retained by the
Depositary on behalf of the Offeror.
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<PAGE> 14
Where a Notice of Withdrawal is given in accordance with this Section 5 of
this Offer to Purchase, the Offeror shall return the Noma Shares to the
depositing Shareholder in accordance with Section 7 of this Offer to Purchase,
"Return of Noma Shares".
Withdrawals may not be rescinded and any Noma Shares withdrawn will be
deemed not validly deposited for the purposes of the Offer, but may be
redeposited at any subsequent time prior to the Expiry Time by following the
applicable procedures described in Section 2 of this Offer to Purchase, "Manner
and Time of Acceptance". In addition to the foregoing rights of withdrawal,
Shareholders in certain provinces of Canada are entitled to statutory rights of
rescission in certain circumstances. See Section 21 of the Circular, "Statutory
Rights".
6. PAYMENT FOR DEPOSITED NOMA SHARES
Noma Shares deposited under the Offer may not be taken up and paid for by
the Offeror before 5:00 p.m. (Toronto time) on the Expiry Date. If all of the
terms and conditions attached to the Offer have been fulfilled or waived, the
Offeror shall be entitled on and after the Expiry Date to take up and pay for
the Noma Shares deposited under the Offer and not withdrawn.
If all the conditions referred to under Section 4 of this Offer to
Purchase, "Conditions", have been satisfied or waived by the Offeror, the
Offeror will accept for payment, and will take up and pay for, all Noma Shares
validly deposited under the Offer and not withdrawn as soon as practicable in
the circumstances and in any event within 3 business days thereafter. In
accordance with applicable law, the Offeror will take up and pay for Noma Shares
deposited under the Offer subsequent to the date on which it first takes up Noma
Shares deposited under the Offer not later than 10 days after the deposit of
such additional Noma Shares.
Subject to applicable law, the Offeror expressly reserves the right in its
sole discretion to delay taking up and paying for the Noma Shares or to
terminate the Offer and not take up or pay for any Noma Shares if any condition
specified under Section 4 of this Offer to Purchase, "Conditions", is not
satisfied or waived by the Offeror, in whole or in part, by giving written
notice thereof or other communication confirmed in writing to the Depositary at
its principal office in Toronto, Ontario. The Offeror will not, however, take up
and pay for any Noma Shares deposited under the Offer unless it simultaneously
takes up and pays for all Noma Shares then validly deposited under the Offer.
The Offeror will be deemed to have taken up and accepted for payment Noma Shares
validly deposited and not withdrawn pursuant to the Offer, if, as and when the
Offeror gives written notice or other communication confirmed in writing to the
Depositary at its principal office in Toronto, Ontario of its acceptance for
payment of such Noma Shares pursuant to the Offer.
No amount will be paid by the Offeror or the Depositary in respect of
accrued and unpaid dividends on the Noma Shares.
The Depositary will act as the agent of persons who have deposited Noma
Shares in acceptance of the Offer for the purposes of receiving payment from the
Offeror and transmitting payment to such persons, and receipt of payment by the
Depositary will be deemed to constitute receipt of payment by Shareholders who
have deposited and not withdrawn their Noma Shares pursuant to the Offer.
The Offeror will pay for Noma Shares taken up pursuant to the Offer by
providing the Depositary with sufficient funds (by bank transfer or other means
satisfactory to the Depositary) for transmittal to depositing Shareholders.
Under no circumstances will interest accrue or be paid by the Offeror on the
Offer Price of Noma Shares purchased by the Offeror, regardless of any delay in
making such payment. The Depositary will forward cheques by first class mail to
Shareholders depositing Noma Shares at the address specified in the Letter of
Transmittal, unless the depositing Shareholder instructs the Depositary in the
Letter of Transmittal to hold the cheque for pick-up. If no address is
specified, a cheque payable in respect of deposited Noma Shares will be
forwarded to the address of the Shareholder as shown on the share register of
Noma.
Except as set forth in the instructions to the Letter of Transmittal,
transfer taxes, if any, on the purchase of Noma Shares will be paid by the
Offeror.
7. RETURN OF NOMA SHARES
Any deposited Noma Shares not taken up and paid for by the Offeror will be
returned at the Offeror's expense to the depositing Shareholder. The
certificates (and other relevant documents) will be forwarded by first class
insured mail in the name of and to the address specified by the depositing
Shareholder in the Letter of Transmittal
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<PAGE> 15
or, if such name or address is not so specified, then in such name and to such
address of the Shareholder as shown on the registers maintained by Noma, as soon
as practicable following the Expiry Time or withdrawal or termination of the
Offer. If certificates are submitted for more Noma Shares than are deposited,
such certificates will be returned by the same process outlined for Noma Shares
deposited and not taken up and paid for under the Offer.
8. MAIL SERVICE INTERRUPTION
Notwithstanding the other provisions of the Offer Documents, cheques in
payment for Noma Shares purchased pursuant to the Offer, certificates
representing Noma Shares to be returned, notices and any other relevant
documents from the Offeror or the Depositary to Shareholders will not be mailed
if the Offeror determines, in its sole judgment, that delivery thereof by mail
may be delayed. Persons entitled to cheques which are not mailed for the
foregoing reason may take delivery thereof at the office of the Depositary at
which the deposited certificates representing Noma Shares in respect of which
the cheque is being issued were deposited, upon application to the Depositary,
until such time as the Offeror has determined that delivery by mail will no
longer be delayed. Notice of any determination by the Offeror not to mail as a
result of mail service delay or interruption will be given in accordance with
Section 10 of this Offer to Purchase, "Notice". Notwithstanding Section 6 of
this Offer to Purchase, "Payment for Deposited Noma Shares", cheques not mailed
for the foregoing reason will be conclusively deemed to have been delivered on
the first day upon which they are available for delivery to the depositing
Shareholder at the office of the Depositary referred to above.
9. CHANGES IN CAPITALIZATION, DIVIDENDS, DISTRIBUTIONS AND LIENS
If, on or after the date of the Offer, Noma splits, combines or otherwise
changes any of the Noma Shares or its capitalization, or discloses that it has
taken or intends to take any such action, then the Offeror may, in its sole
discretion and without prejudice to its rights under Section 4 of this Offer to
Purchase, "Conditions", make such adjustments as it deems appropriate to the
Offer Price and the other terms of the Offer (including, without limitation, the
type of securities offered to be purchased and the amounts payable therefor) to
reflect any such split, combination or other change.
Noma Shares acquired pursuant to the Offer shall be transferred by the
holders thereof and acquired by the Offeror free and clear of all liens,
restrictions, charges, encumbrances, claims and equities and together with all
rights and benefits arising therefrom including the right to any and all
dividends, distributions, payments, securities, rights, assets or other
interests which may be declared, paid, issued, distributed, made or transferred
on or in respect of the Noma Shares on or after the Offer Date. If Noma declares
or pays any cash or stock dividend, or makes any other distribution on, or
issues any rights with respect to, any of the Noma Shares accepted for purchase
pursuant to the Offer and which is payable or distributable to registered
Shareholders on a date prior to the transfer of Noma Shares to the name of the
Offeror or its nominee or transferee on Noma's share register, then the whole of
any such dividend, distribution or right shall be received and held by the
depositing Shareholder for the account of the Offeror and shall be promptly
remitted and transferred by the depositing Shareholder to the Depositary for the
account of the Offeror, accompanied by appropriate documentation of transfer.
Pending such remittance, the Offeror will be entitled to all rights and
privileges as owner of any such dividend, distribution or right, and may
withhold the entire purchase price payable by the Offeror pursuant to the Offer
or deduct from such purchase price the amount or value thereof, as determined by
the Offeror in its sole discretion.
10. NOTICE
Without limiting any other lawful means of giving notice, any notice the
Offeror or the Depositary may give or cause to be given under the Offer will be
deemed to have been properly given if it is mailed by first class mail, postage
prepaid, to the registered holders of Noma Shares at their addresses as shown on
the share register of Noma and will be deemed to have been received on the first
business day following the date of mailing. These provisions apply
notwithstanding any accidental omission to give notice to any one or more
holders and notwithstanding any interruption of postal service in Canada or the
United States or elsewhere following mailing. In the event of any interruption
of mail service following mailing, the Offeror intends to make reasonable
efforts to disseminate the notice by other means, such as publication. Except as
otherwise required or permitted by law, if post offices in Canada or the United
States or elsewhere are not open for the deposit of mail or there is reason to
believe that there is or could be a disruption in all or part of the postal
service, any notice which the Offeror or the Depositary may give or cause to be
given under the Offer, except as otherwise provided herein, will be deemed to
have been properly
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<PAGE> 16
given and to have been received by holders of Noma Shares, if: (i) it is given
to The Toronto Stock Exchange for dissemination through its facilities; (ii) it
is published once in the national edition of The Globe and Mail, provided that
if the national edition of The Globe and Mail is not being generally circulated,
publication thereof shall be made in The National Post or any other daily
newspaper of general circulation in the City of Toronto.
Wherever the Offer calls for documents to be delivered to the Depositary,
such documents will not be considered delivered unless and until they have been
physically received at one of the addresses listed for the Depositary in the
Letter of Transmittal or Notice of Guaranteed Delivery, as applicable. Wherever
the Offer calls for documents to be delivered to a particular office of the
Depositary, such documents will not be considered delivered unless and until
they have been physically received at that particular office listed in the
Letter of Transmittal or Notice of Guaranteed Delivery, as applicable.
11. MARKET PURCHASES AND SALE OF NOMA SHARES
The Offeror has no current intention of acquiring any Noma Shares while the
Offer is outstanding, other than as described in this Offer to Purchase and the
Circular. However, subject to applicable law, the Offeror reserves the right to,
and may, acquire or cause an affiliate to acquire beneficial ownership of Noma
Shares by making purchases through the facilities of The Toronto Stock Exchange
at any time and from time to time prior to the Expiry Time. In no event will the
Offeror make any such purchases until the third clear trading day following the
date of the Offer. If the Offeror should so acquire Noma Shares, the Noma Shares
so purchased will be counted in any determination as to whether the condition in
paragraph (a) of Section 4 of the Offer to Purchase, "Conditions", has been
fulfilled. The aggregate number of Noma Shares acquired in this manner will not
exceed 5% of the Noma Shares outstanding on the date of the Offer and the
Offeror will issue and file a press release containing the information
prescribed by law forthwith after the close of business of The Toronto Stock
Exchange on each day on which such Noma Shares have been purchased.
If the Offeror purchases any Noma Shares on The Toronto Stock Exchange for
a price in excess of the Offer Price, the Offeror will pay such higher price to
each person whose Noma Shares are taken up and paid for under the Offer, whether
or not such Noma Shares have already been taken up, and will immediately so
notify the Shareholders.
Although the Offeror has no current intention to sell Noma Shares taken up
under the Offer, it reserves the right, subject to applicable laws, to make or
enter into an arrangement, commitment or understanding prior to the Expiry Time
to sell any of such Noma Shares after the Expiry Time.
12. OTHER TERMS OF THE OFFER
No broker, dealer or other person has been authorized to give any
information or to make any representation on behalf of the Offeror other than as
contained in the Offer Documents, and if any such information or representation
is given or made, it must not be relied upon as having been authorized. No
broker, dealer or other person shall be deemed to be the agent of the Offeror,
the Depositary, the Dealer Manager or the Soliciting Dealer Group for the
purposes of the Offer. In any jurisdiction in which the Offer is required to be
made by a licensed broker or dealer, the Offer shall be made on behalf of the
Offeror by brokers or dealers licensed under the laws of such jurisdiction.
The Offeror, in its sole discretion, shall be entitled to make a final and
binding determination of all questions relating to the interpretation of the
Offer Documents, the validity of any acceptance of the Offer and the validity of
any withdrawals of previously deposited Noma Shares.
The Offer is not being made to, nor will deposits be accepted from or on
behalf of, Shareholders residing in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. The Offeror may, in its sole discretion, take such action as it
may deem necessary to make the Offer in any jurisdiction and extend the Offer to
Shareholders in any such jurisdiction.
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<PAGE> 17
The Offer, the Offer Documents and all contracts resulting from the
acceptance of the Offer shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
Each party to any agreement resulting from the acceptance of the Offer
unconditionally and irrevocably attorns to the jurisdiction of the courts of the
Province of Ontario.
The accompanying Circular together with this Offer to Purchase constitute
the take-over bid circular required under Canadian provincial securities
legislation with respect to the Offer.
Dated: March 10, 1999
NOMA ACQUISITION CORP.
Per: (Signed) PAUL M. MEISTER
Chief Executive Officer
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<PAGE> 18
CIRCULAR
The following information in this Circular is provided in connection with
the Offer made in the accompanying Offer to Purchase by the Offeror dated March
10, 1999 to purchase all of the Noma Shares. The terms, conditions and
provisions of the Offer Documents are incorporated into and form part of this
Circular, and collectively constitute the take-over bid circular of the Offeror.
Certain terms used in this Circular are defined under "Glossary". Shareholders
should refer to the Offer Documents for details of the terms and conditions of
the Offer.
THE INFORMATION CONCERNING NOMA CONTAINED IN THE OFFER DOCUMENTS HAS BEEN
TAKEN FROM OR IS BASED UPON PUBLICLY AVAILABLE DOCUMENTS, RECORDS ON FILE WITH
CANADIAN SECURITIES REGULATORY AUTHORITIES AND OTHER PUBLIC SOURCES AND
INFORMATION PROVIDED TO THE OFFEROR BY NOMA. ALTHOUGH THE OFFEROR HAS NO
KNOWLEDGE THAT WOULD INDICATE THAT ANY STATEMENTS CONTAINED HEREIN TAKEN FROM OR
BASED UPON SUCH DOCUMENTS AND RECORDS OR OTHER INFORMATION ARE UNTRUE OR
INCOMPLETE, THE OFFEROR DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ACCURACY OR
COMPLETENESS OF THE INFORMATION TAKEN FROM OR BASED UPON SUCH DOCUMENTS, RECORDS
AND INFORMATION, OR FOR ANY FAILURE BY NOMA TO DISCLOSE PUBLICLY EVENTS OR FACTS
WHICH MAY HAVE OCCURRED OR WHICH MAY AFFECT THE SIGNIFICANCE OR ACCURACY OF ANY
SUCH INFORMATION BUT WHICH ARE UNKNOWN TO THE OFFEROR.
1. THE OFFEROR AND GENERAL CHEMICAL
The Offeror is an indirect wholly-owned subsidiary of General Chemical
incorporated under the OBCA on February 23, 1999. The registered office of the
Offeror is located at Suite 4700, Toronto Dominion Bank Tower, Toronto-Dominion
Centre, Toronto, Ontario, M5K 1E6. It has been incorporated and organized for
the purpose of making the Offer and has not otherwise carried on any material
business activity.
General Chemical is a Delaware corporation with its principal executive
office located at One Liberty Lane, Hampton, New Hampshire, 03842. General
Chemical is a publicly traded company registered with the United States
Securities and Exchange Commission and listed and traded on the New York Stock
Exchange (symbol: GCG). General Chemical is a diversified manufacturing company
which produces automotive components, fluid-handling equipment for the
transportation industry and performance and industrial chemicals for a wide
variety of customers and markets. General Chemical employs approximately 2,300
employees and operates through a network of plants throughout North America,
generating sales of approximately U.S.$700 million annually.
2. NOMA INDUSTRIES LIMITED
Noma is involved in the design, engineering and manufacturing of insulated
copper wire and wire-related products. The company's products are used by a wide
range of manufacturers in the automotive, appliance and electronic component
industries.
Noma was incorporated under the laws of Ontario on October 26, 1954 under
the name Beck Electric Manufacturing Company Limited and is the successor to the
business commenced in 1950 by Mrs. Theresa Beck and Henry Thomas Beck, the
current Chairman of Noma. On August 28, 1972, its name was changed to Noma
Industries Limited. Noma has 8 wholly-owned subsidiaries and has investments in
three related businesses of 50% and one related business of 49%. The Class A
Shares and Class B Shares are listed and traded on The Toronto Stock Exchange
(symbols: NMA.A and NMA.B, respectively).
The corporate headquarters of Noma is in Toronto, Ontario. Noma's operating
plants are located in the Province of Ontario, the United States and Mexico.
Noma and its operating plants currently employ approximately 4,200 people, of
which 1,800 are located in Canada, 300 in the United States and 2,100 in Mexico.
Most of Noma's employees are non-unionized.
Noma is subject to the information and reporting requirements of the OBCA,
the Securities Laws and the rules of The Toronto Stock Exchange. In accordance
therewith, Noma is required to file reports, financial statements and other
information with certain securities regulatory authorities in Canada and with
The Toronto Stock Exchange relating to its business, financial condition and
other matters. Information as of particular dates concerning Noma's directors
and officers, their remuneration, stock options granted to them, the principal
holders of the Noma Shares and any material interests of such persons in
transactions with Noma and other matters, is required to be disclosed in proxy
circulars distributed to Shareholders and filed with certain of such securities
regulatory authorities and with The Toronto Stock Exchange and may be inspected
at the offices or through the facilities of such authorities and such exchange.
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<PAGE> 19
3. BACKGROUND TO THE OFFER
On November 9, 1998, Noma publicly announced that it had retained
Donaldson, Lufkin & Jenrette Securities Corporation to act as its financial
advisor and to identify and evaluate strategic alternatives to enhance
Shareholder value. Following this announcement, Donaldson, Lufkin & Jenrette
Securities Corporation solicited expressions of interest from a number of
potential investors, including General Chemical. General Chemical expressed an
interest in acquiring Noma. After executing a confidentiality agreement, General
Chemical was permitted to conduct a review of certain confidential information
of Noma and received a presentation from Noma's management.
Upon the completion of its preliminary due diligence, and following a
request from Noma for a transaction proposal, General Chemical submitted its
initial written proposal to Noma on February 11, 1999. Shortly thereafter,
General Chemical entered into negotiations with Noma and the Principal Vendors
with the objective of reaching agreement on the Acquisition Agreement and
Lock-Up Agreements, subject to the completion of further due diligence. The
terms of these agreements were negotiated throughout the following two weeks
with the parties reaching agreement and signing the contracts after the close of
business on February 26, 1999. Press releases announcing the Offer were issued
by General Chemical and Noma on the morning of March 1, 1999.
4. RECOMMENDATION OF NOMA'S BOARD OF DIRECTORS
The board of directors of Noma has unanimously recommended that
Shareholders accept the Offer and deposit their Noma Shares under the Offer. The
reasons for the board's recommendation are set out in the Directors' Circular.
Donaldson, Lufkin & Jenrette Securities Corporation, the financial advisor to
the board of directors of Noma, has provided an opinion that the Offer is fair
from a financial point of view to the Shareholders. A copy of this opinion is
included in the Directors' Circular.
5. ACQUISITION AGREEMENT
The Offeror, General Chemical and Noma have entered into the Acquisition
Agreement pursuant to which the Offeror agreed to make the Offer.
NON-SOLICITATION
In the Acquisition Agreement, Noma has agreed that it will not, directly or
indirectly, through any officer, director, employee, representative or agent of
Noma or any of its subsidiaries, solicit or encourage (including by way of
furnishing information or entering into any form of agreement, arrangement or
understanding) the initiation of any take-over bid, tender offer or exchange
offer (other than the Offer), merger, amalgamation, plan of arrangement,
reorganization, consolidation, business combination, reverse take-over, sale of
assets (other than in the ordinary course of business), sale of securities
(other than pursuant to the exercise of currently outstanding Stock Options),
recapitalization, liquidation, dissolution, winding-up or similar transaction
involving Noma or any of its subsidiaries (any of the foregoing being referred
to as a "Transaction Proposal"), but the board of directors of Noma may
consider, negotiate, approve and recommend to the Shareholders an unsolicited
bona fide written Transaction Proposal in respect of which adequate financial
arrangements are in place which the board of directors of Noma determines in
good faith (after consultation with its financial advisors, and after receiving
a written opinion of outside counsel, or oral advice of such outside counsel
that is reflected in the minutes of the board of directors, to the effect that
the board of directors is required to do so in order to discharge properly its
fiduciary duties) would, if consummated in accordance with its terms, result in
a transaction more favourable to the Shareholders than the Offer (any such
Transaction Proposal being referred to as a "Superior Proposal").
Noma has agreed to immediately notify General Chemical of any future
Transaction Proposal or any written request for non-public information relating
to Noma or any of its subsidiaries in connection with a Transaction Proposal or
for access to the properties, books or records of Noma or any subsidiary by any
person or entity that informs any member of the board of directors of Noma or
such subsidiary that it is considering making, or has made, a Transaction
Proposal. If the board of directors of Noma receives a request for material
non-public information from a party proposing a Superior Proposal, then, and
only then, Noma may provide such party with access to information regarding
Noma, provided that (i) such party shall have first executed and delivered a
confidentiality agreement in substantially the same form and containing the same
restrictions and limitations as are set forth in the confidentiality agreement
dated November 9, 1998 between General Chemical and Noma, and (ii) any
information provided to any such party that has not already been provided to
General Chemical is concurrently provided to General Chemical. Noma also has
waived the standstill provisions and any other applicable
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<PAGE> 20
restrictions under its confidentiality agreement with General Chemical to the
extent necessary to permit the Offeror to make and complete the Offer.
NON-COMPLETION FEE
Noma has agreed to pay to General Chemical a fee of $10,000,000 in the
event that: (i) the board of directors of Noma withdraws or modifies (including
by amendment of the Directors' Circular), in a manner determined by General
Chemical to be adverse to General Chemical or the Offeror, its approval or
recommendation, or any of its determinations, in respect of the Offer, the
Acquisition Agreement or the transactions contemplated thereby, or resolves to
do so; or (ii) Noma breaches the Acquisition Agreement in any material respect
including (A) a breach of any representation or warranty on the part of Noma
contained therein or (B) a breach of any covenant or agreement on the part of
Noma made therein. Any such payment shall be made by Noma within one business
day of the first event giving rise to the payment obligation in immediately
available funds to an account designated by General Chemical.
TERMINATION
The Acquisition Agreement may be terminated: (i) by a written agreement
executed by Noma, General Chemical and the Offeror; (ii) by Noma, General
Chemical or the Offeror if any court of competent jurisdiction or other
governmental body located or having jurisdiction within Canada or the United
States shall have issued a final order, decree or ruling or taken any other
final action restraining, enjoining or otherwise prohibiting the Offer and such
order, decree, ruling or other action is or shall have become final and
non-appealable, provided that such right of termination shall not be available
to any party if such party shall have failed to make reasonable efforts to
prevent or contest the imposition of such injunction or action and such failure
materially contributed to such position; (iii) by Noma if any amendment to the
Offer other than a permitted variation of the terms of the Offer described under
Section 3 of the Offer to Purchase, "Variation or Extension of the Offer", or
any amendment to the Offer that has been mutually agreed to by the parties, does
not conform in all material respects with the terms of the Offer set forth in
the Acquisition Agreement or any amendment thereof that has been mutually agreed
to by the parties; (iv) by Noma if Noma Shares deposited under the Offer have
not, for any reason whatsoever, been taken up and paid for on or before 120 days
after the date of mailing of the Offer to Shareholders; (v) by Noma if the Offer
has been terminated, withdrawn or expires; (vi) by Noma if there shall have been
a material breach of any representation, warranty, covenant or agreement on the
part of General Chemical or the Offeror contained in the Acquisition Agreement;
(vii) by General Chemical or the Offeror if the Offer has been terminated,
withdrawn or otherwise expires in accordance with its terms; or (viii) by
General Chemical or the Offeror if any event described under the subsection
entitled "Non-Completion Fee" above in this Section 5 of this Circular occurs,
provided that Noma's obligations to General Chemical summarized in such
subsection shall survive any termination of the Acquisition Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Noma has agreed that it will conduct its business, and shall cause each of
its subsidiaries to conduct their business, in the usual and ordinary course and
will, among other things, not: (i) issue any additional shares or any rights of
any kind to acquire any shares of Noma or any subsidiary (other than Noma Shares
issuable on the exercise of Stock Options); (ii) sell, pledge, lease, dispose
of, grant any interest in or encumber any assets of Noma or any subsidiary
(except for sales of inventory in the ordinary course of business and other
non-material dispositions of equipment and other personal property); (iii) amend
or propose to amend its articles or by-laws or those of any subsidiary; (iv)
split, combine or reclassify any outstanding Noma Shares, or declare, set aside
or pay any dividend or other distribution payable in cash, securities or other
property with respect to the Noma Shares; (v) redeem, purchase or offer to
purchase (or permit any subsidiary to redeem, purchase or offer to purchase) any
Noma Shares or other securities of Noma or any subsidiary; (vi) reorganize,
amalgamate or merge Noma or any subsidiary with any other person, corporation,
partnership or other business organization whatsoever; (vii) acquire or agree to
acquire (by amalgamation, merger, acquisition of shares or assets or otherwise)
any person, corporation, partnership or other business organization or division
or acquire or agree to acquire any assets or make any capital expenditures in
excess of $2,500,000 in the aggregate; (viii) incur or commit to any
indebtedness for borrowed money or issue any debt securities except for
borrowing of working capital in the ordinary course of business consistent with
past practice; (ix) enter into or modify any employment, severance or similar
agreements, policies or arrangements with, or grant any bonuses, salary
increases, severance or termination pay to, any officers or directors of Noma
other than
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<PAGE> 21
pursuant to agreements in effect on the date of the Acquisition Agreement; or
(x) take, propose or commit to take any action, or permit any of its
subsidiaries to take, propose or commit to take any action, that would cause (A)
any of the conditions set forth under Section 4 of the Offer to Purchase,
"Conditions", within the control of Noma or any of its subsidiaries not to be
satisfied, or (B) any representation or warranty made by Noma in the Acquisition
Agreement to be or become untrue in any material respect, or that would
reasonably be expected to have either of the foregoing results.
The representations and warranties of Noma contained in the Acquisition
Agreement include representations with respect to: (i) the due incorporation and
organization of Noma; (ii) the capitalization of Noma and its subsidiaries;
(iii) the aggregate indebtedness of Noma and its subsidiaries for borrowed
money; and (iv) the completeness of the public record of Noma.
Noma has agreed to use all reasonable best efforts, and cause each of its
subsidiaries to use all reasonable best efforts, to preserve intact their
respective business operations, business organizations and goodwill and to
preserve its present relationships with customers, suppliers, lenders and other
persons having business relationships with it or its subsidiaries. In addition,
Noma has agreed to promptly notify the Offeror of any change in the normal
course of its or any subsidiary's business or in the operation of its or any
subsidiary's properties, and of any governmental or third party complaints,
orders, investigations or hearings (or communications indicating that the same
may be contemplated) that constitutes a Material Adverse Effect.
Subject to the terms and conditions of the Acquisition Agreement, Noma,
General Chemical and the Offeror have agreed to use their respective reasonable
best efforts to take, or cause to be taken, all appropriate action, and to do or
cause to be done all things necessary, proper or advisable under applicable laws
and regulations, to consummate and make effective the transactions contemplated
by the Acquisition Agreement, including: (i) co-operation and assistance in the
preparation and filing of any regulatory and governmental applications, filings
or submissions and any amendments to any such applications, filings or
submissions; and (ii) to diligently make all required regulatory filings and
applications and to obtain all licences, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and
parties to contracts with Noma and its subsidiaries as are necessary for the
consummation of the transactions contemplated by the Acquisition Agreement and
to fulfil the conditions to the Offer.
6. LOCK-UP AGREEMENTS
The Offeror and General Chemical have entered into the following Lock-Up
Agreements with Principal Vendors holding an aggregate of 4,794,800 Class A
Shares and 4,989,496 Class B Shares, representing approximately 15.7% of the
Class A Shares and 83.6% of the Class B Shares (in each case calculated on a
fully diluted basis), respectively: (i) Lock-Up Agreements with Henry Thomas
Beck, the Chairman of Noma, and with each of Fernhill Holdings Limited and
Ocassa Holdings Ltd., which are corporations controlled by Mr. Beck, for a total
of 4,794,800 Class A Shares and 4,864,696 Class B Shares, respectively; and (ii)
Lock-Up Agreements with Second Theresa Beck Family Trust, of which Mr. Beck is a
trustee, and with Glasmar Holdings Ltd., a corporation controlled by Second
Theresa Beck Family Trust, for a total of 124,800 Class B Shares.
Pursuant to the Lock-Up Agreements, each of the Principal Vendors has
irrevocably agreed to deposit, within 7 days of the mailing of the Offer to
Purchase accompanying this Circular, and not withdraw, either: (i) all of the
Noma Shares owned by such Principal Vendor; or (ii) all of such Principal
Vendor's Holdco Shares, if such Principal Vendor elects to make use of the
Holdco Alternative.
7. THE HOLDCO ALTERNATIVE
The Offeror has agreed to permit any corporate Shareholder which owns Noma
Shares indirectly through one or more Holdcos to participate in the Offer by
using the Holdco Alternative. See Section 2 of the Offer to Purchase, "Manner
and Time of Acceptance -- Procedure for Holdco Alternative".
The Holdco Alternative was created in order to enable corporate
Shareholders to obtain the income tax benefit of the "safe income" (as that term
is understood for Canadian federal income tax purposes) attributable to their
Noma Shares. Under the Holdco Alternative, a corporate Shareholder may transfer
its Noma Shares to one or more Holdcos, and then cause each Holdco to capitalize
its safe income. The Shareholder will then deposit all its Holdco Shares in
acceptance of the Offer. The Holdco Shares will be subject to the terms of the
Offer in the same manner as Noma Shares.
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<PAGE> 22
ACCEPTANCE OF THE OFFER THROUGH THE HOLDCO ALTERNATIVE MAY HAVE INCOME TAX
CONSEQUENCES TO A PARTICULAR HOLDER OF NOMA SHARES THAT ARE NOT DESCRIBED
HEREIN. SHAREHOLDERS WISHING TO AVAIL THEMSELVES OF THE HOLDCO ALTERNATIVE
SHOULD CONSULT THEIR OWN TAX ADVISORS.
8. PURPOSE OF THE OFFER AND PLANS FOR NOMA
PURPOSE OF THE OFFER
The purpose of the Offer is to enable the Offeror to acquire all of the
Noma Shares, including Noma Shares which may be issued upon the exercise of
outstanding Stock Options. If at least 90% of the issued and outstanding Class A
Shares or Class B Shares (excluding Noma Shares held on the date of the Offer by
or on behalf of the Offeror or its affiliates or associates) are validly
tendered pursuant to the Offer, the Offeror may elect to invoke its statutory
right of compulsory acquisition of Noma Shares of such class in accordance with
the provisions of section 188 of the OBCA.
If the Offer is successful but the Offeror acquires less than 90% of the
issued and outstanding Noma Shares of a class, the Offeror currently intends to
pursue a Second Stage Transaction to acquire the Noma Shares of such class not
tendered to the Offer on such terms and conditions as the Offeror, at the time,
believes to be fair to Noma and its Shareholders. The timing and details of any
such transaction will necessarily depend upon a variety of factors, including
the number of Noma Shares of such class acquired pursuant to the Offer. See
Section 15 of this Circular, "Acquisition of Noma Shares Not Deposited".
RECONSTITUTION OF NOMA'S BOARD OF DIRECTORS
Under the Acquisition Agreement, provided that at least two-thirds of the
outstanding Class B Shares are acquired pursuant to the Offer, if requested by
the Offeror, Noma shall as soon as practicable following the first take-up of
and payment for the Class B Shares pursuant to the Offer, cause such persons as
may be designated or selected by General Chemical to be elected or appointed as
the directors of Noma and its subsidiaries and for all or any of the then
directors of Noma and its subsidiaries designated by General Chemical to resign.
If less than two-thirds but at least a majority of the outstanding Class B
Shares are acquired pursuant to the Offer, if requested by the Offeror, Noma
shall as soon as practicable following the first take-up of and payment for the
Class B Shares pursuant to the Offer, cause the Applicable Percentage (as
hereinafter defined) of directors of Noma and such subsidiaries as may be
requested by General Chemical (and of members of each committee of the board of
directors of Noma) to consist of persons designated or selected by General
Chemical. The "Applicable Percentage" means the ratio of (i) the total voting
power of all Class B Shares accepted for payment and taken up and paid for
pursuant to the Offer to (ii) the total voting power of the outstanding Class B
Shares, rounded to the nearest whole number and expressed as a percentage, and
all numbers of directors or members calculated thereby will be rounded to the
next highest director or member. At the request of General Chemical, such
directors will take their seats on the board of directors of Noma by means of
increasing the size of the board or seeking the resignation of directors
specified by General Chemical and causing General Chemical's designees to be
nominated for election.
GENERAL CHEMICAL'S PLANS FOR NOMA
On January 26, 1999, General Chemical announced its intention to separate
its manufacturing and performance chemicals business from its industrial
chemicals business. It is expected that the manufacturing and performance
chemicals units will be spun off in late March 1999 by General Chemical into a
new United States public company, GenTek Inc. ("GenTek"). Following the
spin-off, which is subject to several conditions including the receipt of
required regulatory approvals, GenTek will own and operate businesses that
manufacture highly engineered components and systems for the automobile industry
and fluid-handling equipment for the transportation industry, as well as
performance chemicals. It is the intention of General Chemical that, following
the completion of the spin-off of GenTek and the completion of the Offer, Noma
will become a subsidiary of GenTek.
If permitted by applicable law, subsequent to the completion of the Offer
or a Subsequent Acquisition Transaction, if necessary, the Offeror intends to
delist the Noma Shares from The Toronto Stock Exchange and cause Noma to cease
to be a reporting issuer under the securities laws of each province in which it
has such status.
9. ARRANGEMENTS WITH DIRECTORS AND SENIOR OFFICERS OF NOMA AND OTHERS
There are no contracts, arrangements or agreements made or proposed to be
made between the Offeror, its associates or affiliates and any of the directors
or senior officers of Noma except as described under Section 6 of this
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<PAGE> 23
Circular, "Lock-Up Agreements", and no payments or other benefits are proposed
to be made or given by way of compensation for loss of office or as to such
directors or senior officers remaining in or retiring from office if the Offer
is successful. In addition, there are no contracts, arrangements or
understandings, formal or informal, between the Offeror, its associates or
affiliates and any holder of securities of Noma with respect to the Offer or
between the Offeror, its associates or affiliates and any person or company with
respect to any securities of Noma in relation to the Offer except as described
under Section 6 of this Circular, "Lock-Up Agreements", and Section 18 of this
Circular, "Soliciting Dealer Group". There are no business relationships between
the Offeror, its associates or affiliates and Noma that are material to any of
them with the exception of the Acquisition Agreement.
10. PRINCIPAL HOLDERS AND TRADING OF NOMA SECURITIES
None of General Chemical or the Offeror, or any associate or affiliate of
either General Chemical or the Offeror, or any director or officer of General
Chemical or the Offeror, or their respective associates, beneficially owns,
directly or indirectly, or exercises control or direction over, any securities
of Noma, except as described under Section 6 of this Circular, "Lock-Up
Agreements". To the knowledge of the directors and officers of the Offeror,
after reasonable inquiry, no securities of Noma are beneficially owned, directly
or indirectly, by, nor is control or direction over any securities of Noma
exercised by, any person or company who beneficially owns, directly or
indirectly, more than 10% of any class of equity securities of the Offeror or by
any person or company acting jointly or in concert with the Offeror.
During the six month period preceding the date of the Offer, no securities
of Noma have been traded by General Chemical or the Offeror, any associate or
affiliate of either General Chemical or the Offeror, any director or officer of
General Chemical or the Offeror or their respective associates or, to the
knowledge of the directors and officers of the Offeror, after reasonable
inquiry, by any associate of any director or officer of the Offeror, by any
person or company who beneficially owns, directly or indirectly, more than 10%
of any class of equity securities of the Offeror or by any person or company
acting jointly or in concert with the Offeror.
Except for the Acquisition Agreement and the Lock-Up Agreements, none of
General Chemical or the Offeror, or any associate or affiliate of either General
Chemical or the Offeror, or any director or officer of General Chemical or the
Offeror, or their respective associates, or, to the knowledge of the directors
and officers of the Offeror, after reasonable inquiry, any person or company who
beneficially owns, directly or indirectly, more than 10% of any class of equity
securities of the Offeror or any person or company acting jointly or in concert
with the Offeror, has entered into any commitment to acquire any securities of
Noma.
As at the date of the Offer, to the knowledge of the directors and officers
of the Offeror, after reasonable inquiry, no person beneficially owned, directly
or indirectly, or exercised control or direction over, more than 10% of any
class of equity securities of Noma, except:
<TABLE>
<CAPTION>
NUMBER OF CLASS NUMBER OF CLASS
A SHARES B SHARES
BENEFICIALLY PERCENTAGE OF BENEFICIALLY PERCENTAGE OF
OWNED OR OUTSTANDING OWNED OR OUTSTANDING
SHAREHOLDER CONTROLLED CLASS A SHARES CONTROLLED CLASS B SHARES
- ----------- --------------- -------------- --------------- --------------
<S> <C> <C> <C> <C>
Henry Thomas Beck........................... Nil Nil 1,496 0.0%
Fernhill Holdings Limited (1)............... 1,980,000 6.8% 2,720,000 45.6%
Ocassa Holdings Ltd. (1).................... 2,814,800 9.7% 2,143,200 35.9%
Second Theresa Beck Family Trust (1)........ Nil Nil 96,750 1.6%
Glasmar Holdings Ltd. (1)................... Nil Nil 28,050 0.5%
</TABLE>
- ---------------
Note:
(1) Henry Thomas Beck controls Fernhill Holdings Limited and also owns
sufficient voting non-participating securities in Ocassa Holdings Ltd. to
control this company. He is a trustee of Second Theresa Beck Family Trust
which controls Glasmar Holdings Ltd.
11. INFORMATION CONCERNING THE SECURITIES OF NOMA
AUTHORIZED AND OUTSTANDING CAPITAL
The authorized capital of Noma consists of an unlimited number of
non-voting Class A Shares, voting Class B Shares, First Preference Shares
issuable in series and Second Preference Shares issuable in series. As of the
date of the Offer, 29,120,080 Class A Shares and 5,967,350 Class B Shares and no
other shares of Noma are validly issued
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<PAGE> 24
and outstanding. In addition, an aggregate of not more than 1,390,400 Class A
Shares are issuable upon the exercise of outstanding Stock Options having
exercise prices ranging from $3.35 to $8.40. To the knowledge of the Offeror and
General Chemical, there are no other issued and outstanding shares of Noma or
securities of Noma convertible or exchangeable for Noma Shares.
PREVIOUS DISTRIBUTIONS
During the five years preceding the date hereof, no Noma Shares were
distributed by Noma other than any distribution of Noma Shares pursuant to the
Stock Option Plans or the exercise of rights attached to the Class B Shares to
convert to Class A Shares.
DIVIDEND POLICY
Noma paid quarterly dividends of $0.03 per Class A Share and $0.02875 per
Class B Share in the 1995 and 1996 fiscal years and the first fiscal quarter of
1997. In April 1997, the board of directors of Noma decided to suspend the
payment of dividends on both the Class A Shares and the Class B Shares,
beginning with the second quarter dividends in 1997. No dividends have been paid
on the Noma Shares since that time.
PRICE RANGES AND VOLUMES OF TRADING OF THE NOMA SHARES
The Class A Shares and Class B Shares are listed and posted for trading on
The Toronto Stock Exchange. The following table sets forth the reported high and
low sales prices and the volume of trading of the Class A Shares and Class B
Shares on The Toronto Stock Exchange for the periods indicated:
<TABLE>
<CAPTION>
CLASS A SHARES CLASS B SHARES
---------------------------- -------------------------
PERIOD HIGH LOW VOLUME HIGH LOW VOLUME
- ------ ------ ----- --------- ------ ----- ------
<S> <C> <C> <C> <C> <C> <C>
1998
March.................................. $ 8.10 $7.05 1,178,067 $ 7.90 $7.10 8,150
April.................................. $ 8.30 $7.15 787,771 $ 8.30 $7.20 2,700
May.................................... $ 9.10 $7.50 787,259 $ 8.90 $7.75 3,500
June................................... $ 8.70 $7.90 1,569,932 $ 8.25 $8.00 800
July................................... $ 8.20 $6.50 859,515 $ 8.25 $6.70 4,010
August................................. $ 6.75 $4.95 866,863 $ 4.75 $4.75 100
September.............................. $ 5.40 $4.65 358,375 $ 5.75 $5.75 26
October................................ $ 6.50 $4.10 734,906 $ 4.40 $4.40 2,400
November............................... $ 8.55 $6.10 1,922,152 $ 8.65 $6.55 24,080
December............................... $10.10 $7.60 956,873 $10.00 $7.70 2,700
1999
January................................ $ 9.60 $8.60 1,162,197 $ 9.10 $8.50 8,700
February............................... $ 9.45 $8.85 1,031,202 $ 9.50 $9.00 5,750
March 1-9.............................. $ 9.15 $9.00 5,427,960 $ 9.05 $9.00 1,600
</TABLE>
On November 9, 1998, Noma publicly announced that it had retained
Donaldson, Lufkin & Jenrette Securities Corporation to act as its financial
advisor and to identify and evaluate strategic alternatives to enhance
Shareholder value. The closing trading prices of the Class A Shares and Class B
Shares on The Toronto Stock Exchange on November 6, 1998, the last trading day
prior to this announcement, were $6.60 and $6.55, respectively. The Offer Price
of $9.25 per Noma Share represents a premium of approximately 77.4% to the
simple average of the closing price of the Class A Shares and 71.0% to the
simple average of the closing price of the Class B Shares for the 30 trading
days ending November 6, 1998 on The Toronto Stock Exchange.
The announcement of the entering into of the Acquisition Agreement, the
intention of General Chemical to make the Offer and the approval of the Offer by
the board of directors of Noma was made on March 1, 1999. The closing trading
prices of the Class A Shares and Class B Shares on The Toronto Stock Exchange on
February 26, 1999, the last trading day prior to this announcement, were $9.40
and $9.00, respectively.
EFFECT OF THE OFFER ON MARKETS FOR THE NOMA SHARES AND STOCK EXCHANGE
LISTING
The purchase of Noma Shares pursuant to the Offer will reduce the number of
Noma Shares that might otherwise trade publicly, as well as the number of
holders of Shares, and, depending on the number of Noma Shares
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<PAGE> 25
purchased under the Offer, could adversely affect the liquidity and market value
of the remaining Noma Shares held by the public.
The rules and regulations of The Toronto Stock Exchange establish certain
criteria for the listing of shares which, if not met, could lead to the
cessation of trading and delisting of either class of Noma Shares on such
exchange. Among such criteria are the minimum number of holders of shares, the
minimum number of shares publicly held and the minimum aggregate market value of
the shares publicly held. Depending upon the number of Noma Shares purchased
pursuant to the Offer, it is possible that either class of Noma Shares would
fail to meet the criteria for continued listing on The Toronto Stock Exchange.
If this were to happen, such Noma Shares could be delisted and this could, in
turn, adversely affect the market or result in a lack of an established market
for such Noma Shares. It is the intention of the Offeror to cause Noma to apply
to delist both the Class A Shares and Class B Shares from The Toronto Stock
Exchange as soon as practicable after completion of the Offer, any Compulsory
Acquisition or any Second Stage Transaction.
After the purchase of Noma Shares under the Offer and subject to applicable
laws, the Offeror intends to cause Noma to take steps to eliminate its public
reporting requirements under the Securities Laws in any province in which it has
no or an insignificant number of Shareholders.
12. MATERIAL CHANGES AND OTHER MATERIAL FACTS
The Offeror is not aware of any information which has not been generally
disclosed that indicates that any material change has occurred in the affairs of
Noma since December 31, 1998, the date of the consolidated financial statements
of Noma accompanying the Offer Documents and the Directors' Circular, except as
described herein.
The Offeror is not aware of any material facts concerning the Noma Shares
or other material facts not disclosed in the Offer that have not previously been
generally disclosed that would reasonably be expected to affect the decision of
the Shareholders to accept or reject the Offer.
13. SOURCE OF FUNDS
The Offeror estimates that if it acquires all of the Noma Shares (on a
fully diluted basis), the total amount of cash required to purchase such Noma
Shares and to pay related fees and expenses will be approximately $334 million.
General Chemical will provide the funds to the Offeror to finance the Offer and
to enable the Offeror to fulfil its obligations under the Offer.
Such funds will come principally from borrowings under General Chemical's
existing credit agreement dated as of June 15, 1998 with a syndicate of banks
and financial institutions, The Chase Manhattan Bank, as administrative agent,
The Bank of Nova Scotia, as syndication agent and The Bank of America National
Trust and Savings Association, as documentation agent, or from a replacement
credit facility available to GenTek.
14. ACCEPTANCE OF THE OFFER
With the exception of (i) the Shareholders who have entered into the
Lock-Up Agreements, and (ii) each of the directors and senior officers of Noma
and their respective associates, who have indicated that they intend to accept
the Offer in respect of their Noma Shares, the Offeror has no knowledge of
whether any Shareholders will accept the Offer. See Section 6 of this Circular,
"Lock-Up Agreements".
15. ACQUISITION OF NOMA SHARES NOT DEPOSITED
COMPULSORY ACQUISITION
If, within 120 days after the date of the Offer, the Offer has been
accepted by holders of not less than 90% of the Class A Shares or Class B
Shares, other than Noma Shares held on the date of the Offer by or on behalf of
the Offeror or its affiliates or associates (as each of such terms is defined in
the OBCA), the Offeror currently intends to acquire, pursuant to the provisions
of section 188 of the OBCA (a "Compulsory Acquisition"), the remainder of the
Noma Shares of such class on the same terms on which the Offeror acquired Noma
Shares of such class pursuant to the Offer.
To exercise such statutory right, the Offeror must give notice (the
"Offeror's Notice") to each Shareholder who did not accept the Offer (and each
person who subsequently acquires any such Noma Shares) (in each case, a
"Dissenting Offeree") and to the Director under the OBCA of such proposed
acquisition on or before the earlier of 60 days from the Expiry Date and 180
days from the date of the Offer. Within 20 days after giving the Offeror's
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<PAGE> 26
Notice, the Offeror must pay or transfer to Noma the consideration the Offeror
would have had to pay or transfer to the Dissenting Offerees if they had elected
to accept the Offer, to be held in trust for the Dissenting Offerees. In
accordance with section 188 of the OBCA, within 20 days after receipt of the
Offeror's Notice, each Dissenting Offeree must send the certificates
representing the Noma Shares held by such Dissenting Offeree to Noma, and must
elect either to transfer such Noma Shares to the Offeror on the terms of the
Offer or to demand payment of the fair value of the Noma Shares held by such
Dissenting Offeree by so notifying the Offeror. If a Dissenting Offeree has
elected to demand payment of the fair value of such Noma Shares, the Offeror may
apply to a court having jurisdiction to hear an application to fix the fair
value of the Noma Shares of that Dissenting Offeree. If the Offeror fails to
apply to such a court within 20 days after it paid the consideration to Noma
referred to above, the Dissenting Offeree may then apply to the court within a
period of a further 20 days to have the court fix the fair value of the Noma
Shares of that Dissenting Offeree. If the Dissenting Offeree does not notify the
Offeror and apply to a court having jurisdiction within such period, the
Dissenting Offeree will be deemed to have elected to transfer such Noma Shares
to the Offeror on the terms of the Offer. Any judicial determination of the fair
value of the Noma Shares could be more or less than the Offer Price.
THE FOREGOING IS A SUMMARY ONLY. REFERENCE IS MADE TO SECTION 188 OF THE
OBCA FOR A COMPLETE DESCRIPTION OF THE PROVISIONS REGARDING COMPULSORY
ACQUISITIONS. THE PROVISIONS OF SECTION 188 ARE COMPLEX AND MAY REQUIRE STRICT
ADHERENCE TO NOTICE AND TIMING PROVISIONS, FAILING WHICH RIGHTS MAY BE LOST OR
ALTERED. SHAREHOLDERS WHO WISH TO BE BETTER INFORMED ABOUT THESE PROVISIONS
SHOULD CONSULT THEIR LEGAL ADVISORS.
SECOND STAGE TRANSACTIONS
If the Offeror takes up and pays for Noma Shares pursuant to the Offer, and
if the foregoing statutory right of compulsory acquisition is not available, the
Offeror will use all reasonable efforts to acquire the balance of the Noma
Shares for consideration equal to the Offer Price as soon as practicable by way
of a Second Stage Transaction (as hereinafter defined). In order to effect a
Second Stage Transaction, the Offeror will seek to cause a special meeting of
the holders of the necessary classes of securities of Noma and/or the
Shareholders to be called to consider an amalgamation, statutory arrangement,
reorganization, share consolidation, recapitalization or other transaction
involving the Offeror and/or an affiliate of the Offeror and Noma and/or the
Shareholders for the purposes of enabling the Offeror to acquire all of the Noma
Shares (a "Second Stage Transaction"). Depending upon the nature and terms of
the Second Stage Transaction, the approval of at least two-thirds of the votes
cast by holders of each of the Class A Shares and the Class B Shares and the
approval of a majority of the votes cast by "minority" holders of each such
class of Noma Shares will be required at a meeting duly called and held for the
purpose of approving the Second Stage Transaction. The Offeror will cause Noma
Shares acquired under the Offer to be voted in favour of such a transaction. If
the condition in paragraph (a) of Section 4 of the Offer to Purchase,
"Conditions", has been satisfied, the Offeror will own sufficient Noma Shares to
effect such a transaction as described below.
In most types of Second Stage Transactions, the registered holders of Noma
Shares may have the right to dissent under the OBCA and be paid fair value for
their securities, with such fair value to be determined by a court of competent
jurisdiction. The fair value of securities so determined could be more or less
than the Offer Price. Any such judicial determination of the fair value of the
Noma Shares could be based upon considerations other than, or in addition to,
the market price, if any, of the Noma Shares.
A Second Stage Transaction will constitute a "going private transaction"
within the meaning of the Securities Laws, Ontario Securities Commission Policy
No. 9.1 ("Policy 9.1") and Quebec Securities Commission Policy Q-27 ("Policy
Q-27") if such method would result in the interest of a holder of Noma Shares
(the "affected securities") being terminated without the consent of the
Shareholder and without the substitution therefor of an interest of equivalent
value in a participating security of Noma, a successor to the business of Noma
or a person who controls Noma or, in the cases of Policy 9.1 and Policy Q-27, a
person who controls a successor to the business of Noma. The Second Stage
Transaction may also be a "related party transaction" for purposes of Policy 9.1
and Policy Q-27.
Policy 9.1 and Policy Q-27 provide that, unless exempted, a corporation
proposing to carry out a going private transaction (or a related party
transaction) is required to prepare a valuation of the affected securities (and
any non-cash consideration being offered therefor) and provide to the holders of
the affected securities a summary of such valuation. A summary of a similar
valuation is required to be included in a take-over bid circular where it is
25
<PAGE> 27
anticipated by the Offeror that a going private transaction will follow the
take-over bid. The Offeror is relying on blanket waivers granted by the Ontario
Securities Commission and the Quebec Securities Commission in connection with
such valuation requirements in connection with the Offer and intends to rely on
any exemption then available or to seek a waiver pursuant to Policy 9.1 and
Policy Q-27 exempting the Offeror or Noma, as appropriate, from the requirement
to prepare a valuation in connection with any Second Stage Transaction.
Policy 9.1 and Policy Q-27 also require that, unless exempted, in addition
to any other required shareholder approval, in order to complete a going private
transaction or a related party transaction, the approval of a simple or
two-thirds majority (depending on the nature of the transaction) of the votes
cast by "minority" holders of the affected securities be obtained. In relation
to the Offer and any subsequent going private or related party transaction, the
"minority" holders will be, unless an exemption is available or discretionary
relief is granted by the Ontario Securities Commission and the Quebec Securities
Commission, as required, all holders of Noma Shares, other than: (i) the Offeror
(other than in respect of Noma Shares acquired pursuant to the Offer, as
described below); (ii) any "interested party" or any person or company that is a
"related party" of the Offeror for the purposes of Policy 9.1 and Policy Q-27,
including any director, officer or other insider of the Offeror; (iii) any
person or company acting jointly or in concert with the foregoing; or (iv) any
affiliate of the foregoing. Policy 9.1 and Policy Q-27 also provide that the
Offeror may treat Noma Shares acquired pursuant to the Offer as "minority"
shares and vote them, or consider them voted, in favour of such going private or
related party transaction if the consideration per security in the going private
or related party transaction is at least equal in value to the Offer Price. The
ability of the Offeror to include the Noma Shares deposited under the Offer
pursuant to the Lock-Up Agreements as "minority" shares will be subject to
applicable securities laws. If, following the Offer, the Offeror and its
affiliates are the registered holders of 90% or more of the Class A Shares and
the Class B Shares at the time the going private or related party transaction is
initiated, the requirement for minority approval under Policy 9.1 and Policy
Q-27 will not apply to the transaction if a statutory dissent and appraisal
remedy is available, or if a substantially equivalent enforceable right is made
available, to the minority shareholders.
If the Offeror is unable to effect a Compulsory Acquisition, or proposes a
Second Stage Transaction but cannot promptly obtain any required approval, the
Offeror will evaluate other available alternatives. Such alternatives could
include, to the extent permitted by applicable law, purchasing additional Noma
Shares in the open market or in privately negotiated transactions or taking no
further action to acquire additional Noma Shares. Alternatively, the Offeror may
sell or otherwise dispose of any or all Noma Shares acquired pursuant to the
Offer or otherwise. Such transactions may be effected on terms and at prices
then determined by the Offeror, which may vary from the Offer Price.
See Section 16 of this Circular, "Canadian Federal Income Tax
Considerations", for a discussion of the income tax consequences to Shareholders
of a Second Stage Transaction.
JUDICIAL DEVELOPMENTS
Prior to the pronouncement of Policy 9.1 and Policy Q-27, Canadian courts
had, in a few instances, granted preliminary injunctions to prohibit
transactions which constituted "going private transactions" within the meaning
of Policy 9.1 and Policy Q-27. The Offeror has been advised that more recent
legislative enactments and notices and judicial decisions indicate a willingness
to permit "going private transactions" to proceed subject to compliance with
requirements intended to ensure procedural and substantive fairness to the
minority shareholders.
Shareholders should consult their legal advisors for a determination of
their legal rights with respect to any transaction which may constitute a going
private transaction or a related party transaction.
16. CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
THE FOLLOWING SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO
BE, NOR SHOULD IT BE CONSTRUED TO BE, LEGAL OR TAX ADVICE TO ANY PARTICULAR
SHAREHOLDER. SHAREHOLDERS ARE ADVISED AND EXPECTED TO CONSULT WITH THEIR OWN TAX
ADVISORS FOR ADVICE REGARDING THE INCOME TAX CONSEQUENCES TO THEM OF DISPOSING
OF THEIR NOMA SHARES PURSUANT TO THE OFFER, A COMPULSORY ACQUISITION OR A SECOND
STAGE TRANSACTION, HAVING REGARD TO THEIR OWN PARTICULAR CIRCUMSTANCES, AND ANY
OTHER CONSEQUENCES TO THEM OF SUCH TRANSACTIONS UNDER FEDERAL, PROVINCIAL, LOCAL
AND FOREIGN TAX LAWS.
In the opinion of McCarthy Tetrault, Canadian counsel to the Offeror, the
following is a summary of the principal Canadian federal income tax
considerations generally applicable to Shareholders who, for the purposes of
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<PAGE> 28
the Income Tax Act (Canada) (the "Tax Act"), hold their Noma Shares as capital
property, deal at arm's length with the Offeror and Noma and are not affiliated
with the Offeror or Noma. Noma Shares will generally be considered to be capital
property to a Shareholder unless the Shareholder either holds such Noma Shares
in the course of carrying on a business of trading or dealing in securities or
otherwise as part of a business of buying or selling securities or acquired such
Noma Shares in a transaction or transactions considered to be an adventure in
the nature of trade. Certain Canadian resident Shareholders whose Noma Shares
might not otherwise be considered capital property may be entitled to have them
treated as capital property by making the election permitted by subsection 39(4)
of the Tax Act. This summary is not applicable to Shareholders who are
"financial institutions" for the purposes of the mark-to-market rules contained
in the Tax Act or to Shareholders who are "specified financial institutions" for
the purposes of the Tax Act.
This summary is based upon the current provisions of the Tax Act, the
regulations thereunder (the "Regulations"), and counsel's understanding of the
current published administrative practices of Revenue Canada. This summary also
takes into account specific proposals to amend the Tax Act and Regulations
publicly announced by or on behalf of the Minister of Finance (Canada) prior to
the date hereof (the "Proposed Amendments") and assumes that all Proposed
Amendments will be enacted substantially as proposed. However, no assurances can
be given that the Proposed Amendments will be enacted as proposed, or at all.
This summary does not otherwise take into account or anticipate any changes in
the law, whether by way of legislative, judicial or governmental action or
decision, nor does it take into account other federal tax legislation or
considerations or provincial, territorial or foreign tax legislation or
considerations.
SHAREHOLDERS RESIDENT IN CANADA
The following applies only to Shareholders who, for the purposes of the Tax
Act, are resident or deemed to be resident in Canada (a "Resident Shareholder").
The Offer
A Resident Shareholder who disposes of Noma Shares pursuant to the Offer
will realize a capital gain (or a capital loss) to the extent that the Offer
Price received for such Noma Shares, net of any reasonable costs of disposition,
exceed (or are less than) the adjusted cost base (for the purposes of the Tax
Act) to the Resident Shareholder of such Noma Shares.
A Resident Shareholder will be required to include in income for the year
of disposition three-quarters of any such capital gain (a "taxable capital
gain") and will generally be entitled to deduct three-quarters of any capital
loss (an "allowable capital loss") from taxable capital gains realized by the
Resident Shareholder for the year, any of the three preceding years, or any
subsequent year to the extent and in the circumstances described in the Tax Act.
Any such capital loss may in certain circumstances be reduced by the amount of
any dividends, including deemed dividends, which have been received by a
Resident Shareholder on such Noma Shares. A Resident Shareholder that is a
Canadian-controlled private corporation (as defined for the purposes of the Tax
Act) may be subject to a refundable tax of 6 2/3% on any such taxable capital
gains. Capital gains realized by an individual or a trust, other than certain
specified trusts, may give rise to alternative minimum tax under the Tax Act.
Compulsory Acquisition
As described under Section 15 of this Circular, "Acquisition of Noma Shares
Not Deposited -- Compulsory Acquisition", the Offeror may, in certain
circumstances, acquire Noma Shares not deposited under the Offer pursuant to a
Compulsory Acquisition. A Resident Shareholder whose Noma Shares are acquired by
the Offeror pursuant to a Compulsory Acquisition or pursuant to the exercise of
certain dissent rights on such an acquisition will generally realize a capital
gain (or a capital loss) calculated in the manner, and subject to the treatment,
described under the subsection entitled "Shareholders Resident in Canada -- The
Offer" above in this Section 16 of this Circular.
Second Stage Transaction
As described under Section 15 of this Circular, "Acquisition of Noma Shares
Not Deposited -- Second Stage Transactions", the Offeror may, in certain
circumstances, pursue a Second Stage Transaction. The income tax consequences to
a Resident Shareholder of any Second Stage Transaction will depend upon the
nature of such
27
<PAGE> 29
transaction and may be substantially the same as or materially different from
that described above. A Resident Shareholder may realize a capital gain (or a
capital loss) and/or a deemed dividend.
Any disposition (other than a disposition or deemed disposition of Noma
Shares to Noma) pursuant to a Second Stage Transaction (including upon the
exercise by a Resident Shareholder of certain dissent rights) in consideration
for cash will give rise to a capital gain (or a capital loss) calculated in the
manner, and subject to the treatment, described under the subsection entitled
"Shareholders Resident in Canada -- The Offer" above in this Section 16 of this
Circular.
On a disposition or deemed disposition of Noma Shares to Noma (including
upon the exercise by a Resident Shareholder of certain dissent rights), a
Resident Shareholder will be deemed to have received a dividend (subject to the
potential application of subsection 55(2) of the Tax Act to Shareholders that
are corporations, as discussed below) equal to the amount by which the amount
received from Noma exceeds the paid-up capital (for the purposes of the Tax Act)
of such Noma Shares. In the case of a Resident Shareholder who is an individual,
any such dividend will be included in computing the Resident Shareholder's
income and will be subject to the gross-up and dividend tax credit rules
normally applicable to taxable dividends received from taxable Canadian
corporations. A deemed dividend received by a Resident Shareholder that is a
corporation will be included in computing the corporation's income and will
generally be deductible in computing the corporation's taxable income, subject
to various exceptions and special circumstances described in the Tax Act.
Private corporations and certain other corporations may be liable to pay a
33 1/3% refundable tax under Part IV of the Tax Act in respect of such dividend.
Under subsection 55(2) of the Tax Act, in certain circumstances a Resident
Shareholder that is a corporation may be required to recognize all or a portion
of the dividend otherwise deemed to have been received upon the acquisition of
the Noma Shares by Noma as proceeds of disposition.
A Resident Shareholder whose Noma Shares are acquired by Noma will also
realize a capital gain (or a capital loss) equal to the amount by which the
Resident Shareholder's proceeds of disposition of the Noma Shares, net of the
amount of any dividend deemed to be received by the Resident Shareholder as
described above and any reasonable costs of the disposition, exceed (or are less
than) the adjusted cost base (for the purposes of the Tax Act) of the Noma
Shares to the Resident Shareholder. The treatment of any such capital gain (or
capital loss) is as described under the subsection entitled "Shareholders
Resident in Canada -- The Offer" above in this Section 16 of this Circular.
If a Second Stage Transaction results in an amalgamation (for the purposes
of the Tax Act) of Noma and either the Offeror or an affiliate of the Offeror,
such transaction will generally result in the issuance to Resident Shareholders
of either shares of the amalgamated corporation or shares of the Offeror.
Provided that the Resident Shareholder receives shares of either the amalgamated
corporation or its parent corporation as the sole consideration for the Resident
Shareholder's Noma Shares, the Resident Shareholder will be deemed to have
disposed of the Noma Shares and to have acquired the shares of the amalgamated
corporation or its parent corporation, as the case may be, for an amount equal
to the adjusted cost base (for the purposes of the Tax Act) to the Resident
Shareholder of the Noma Shares. Consequently, no capital gain or capital loss
will be realized upon such an amalgamation. A subsequent disposition by the
Resident Shareholder of the shares acquired on the amalgamation may give rise to
a capital gain, a capital loss or, if such shares are repurchased by the issuer
thereof, both a deemed dividend and either a capital gain or capital loss.
Qualified Investment Status
If the Noma Shares cease to be listed on a recognized Canadian stock
exchange, the Noma Shares may no longer be qualified investments under the Tax
Act for trusts governed by registered retirement savings plans, registered
retirement income funds, registered education savings plans and deferred profit
sharing plans.
SHAREHOLDERS NOT RESIDENT IN CANADA
The following applies only to a Shareholder who, for the purposes of the
Tax Act, has not been resident or deemed to be resident in Canada at any time
during which such Shareholder has held Noma Shares and does not hold and is not
deemed to hold Noma Shares in the course of carrying on business in Canada (a
"Non-Resident Shareholder").
28
<PAGE> 30
The Offer
A Non-Resident Shareholder who disposes of Noma Shares pursuant to the
Offer will not be subject to tax under the Tax Act in respect of such
disposition unless the Noma Shares constitute "taxable Canadian property" (as
defined in the Tax Act) to the Non-Resident Shareholder. The Noma Shares will
generally not be taxable Canadian property to a Non-Resident Shareholder unless,
at any time during the five year period immediately preceding the disposition of
the Noma Shares, the Non-Resident Shareholder, persons with whom the Non-
Resident Shareholder did not deal at arm's-length (within the meaning of the Tax
Act) or the Non-Resident Shareholder together with such persons owned or had an
interest in or option in respect of 25% or more of the issued shares of any
class or series of Noma. Noma Shares may also be taxable Canadian property to a
Non-Resident Shareholder if they were acquired pursuant to certain tax deferred
exchanges of property which constituted taxable Canadian property.
A Non-Resident Shareholder whose Noma Shares constitute taxable Canadian
property may nevertheless be exempt from Canadian tax on any gain arising from
the disposition of such shares by virtue of an applicable income tax convention.
Compulsory Acquisition
A Non-Resident Shareholder who disposes of Noma Shares pursuant to a
Compulsory Acquisition will not be subject to tax under the Tax Act in respect
of such disposition unless the Noma Shares constitute "taxable Canadian
property" as described under the subsection entitled "Shareholders Not Resident
in Canada -- The Offer" above in this Section 16 of this Circular. The Noma
Shares will be considered to be taxable Canadian property for these purposes if
they are not listed on a stock exchange prescribed for the purposes of the Tax
Act (such as The Toronto Stock Exchange) at the time of such disposition.
Second Stage Transaction
A disposition of Noma Shares pursuant to a Second Stage Transaction may
result, in whole or in part, in a capital gain, a capital loss or a deemed
dividend as described under the subsection entitled "Shareholders Resident in
Canada -- Second Stage Transaction" above in this Section 16 of this Circular. A
Non-Resident Shareholder who disposes of Noma Shares pursuant to a Second Stage
Transaction will not be subject to tax under the Tax Act on any capital gain
arising from such disposition unless the Noma Shares constitute "taxable
Canadian property" as described under the subsection entitled "Shareholders Not
Resident in Canada -- The Offer" above in this Section 16 of this Circular. The
Noma Shares will be considered to be taxable Canadian property for these
purposes if they are not listed on a stock exchange prescribed for the purposes
of the Tax Act at the time of such disposition. If a Second Stage Transaction
(including the exercise by a Non-Resident Shareholder of any rights of dissent)
results in a deemed dividend as described above, such dividend will be subject
to Canadian withholding tax at the rate of 25% or such lower rate as may be
provided under the terms of an applicable income tax convention.
17. REGULATORY MATTERS
COMPETITION ACT
Unless the Director of Investigation and Research of the Bureau of
Competition Policy (the "Director") issues an advance ruling certificate under
the Competition Act (Canada) in respect of a proposed transaction, that Act
requires a notification filing to be submitted to the Director in respect of a
transaction that surpasses certain prescribed size and other thresholds. The
acquisition contemplated by the Offer exceeds the relevant thresholds.
Under the Competition Act, a notifiable transaction may not be completed
prior the expiration or earlier termination of the applicable waiting period
prescribed under that Act. The waiting period may be 7 or 21 days after the day
on which a complete notification filing is received by the Director, depending
upon the type of information required by the Director in connection with such
filing. The waiting period is intended to afford the Director an opportunity to
review a proposed transaction in order to determine whether it gives rise to
substantive competition law concerns.
The Offeror will apply for an advance ruling certificate and make a
prenotification filing with the Director in the very near future. It is a
condition of the Offer that an advance ruling certificate shall have been issued
by the Director or that the applicable waiting period under section 123 of the
Competition Act shall have expired and that no proceedings shall have been taken
or threatened under the merger provisions of such Act in respect of the Offer.
29
<PAGE> 31
If an advance ruling certificate has not been issued, then notwithstanding the
expiry of the applicable waiting period, the Director may bring an application
to challenge the completion of the Offer under the merger provisions of the
Competition Act within three years after the completion of the Offer if he
determines that the acquisition prevents or lessens or is likely to prevent or
lessen competition substantially.
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976
Under the United States Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations that have been promulgated
thereunder (collectively, the "HSR Act"), certain transactions may not be
consummated until certain information and documentary materials have been
furnished to the Antitrust Division of the U.S. Department of Justice (the
"Antitrust Division") and the U.S. Federal Trade Commission (the "FTC") and
certain waiting period requirements have been satisfied. The acquisition of Noma
Shares pursuant to the Offer is subject to such requirements and a Pre-Merger
Notification and Report Form will be filed with the Antitrust Division and the
FTC in connection with the Offer (the "HSR Filing") as soon as practicable after
the date of the Offer.
Under the provisions of the HSR Act applicable to the Offer, the
acquisition of Noma Shares pursuant to the Offer may not be consummated until
the expiration of a 15 calendar-day waiting period following the HSR Filing. If,
within the 15-day waiting period, either the Antitrust Division or the FTC (the
"Regulatory Agency") issues a request for additional information or documentary
materials (a "Second Request"), the waiting period will be extended. In such
case, the parties to the transaction will be required to supply additional
information to the Regulatory Agency and the waiting period will be extended for
an additional period of 10 calendar days following the date of substantial
compliance with such Second Request.
If the Offeror's acquisition of Noma Shares is delayed by the waiting
period or by the issuance of a Second Request, the Offer may be extended. Only
one extension of the waiting period pursuant to a Second Request is authorized
by the HSR Act and, thereafter, the waiting period can be extended only by court
order. Under the terms of the HSR Act, the Offeror may not acquire Noma Shares
tendered pursuant to the Offer unless and until the filing and waiting period
requirements of the HSR Act applicable to the Offer have been satisfied.
The Antitrust Division and the FTC may scrutinize the legality under the
U.S. antitrust laws of transactions such as the Offeror's acquisition of Noma
Shares pursuant to the Offer. At any time before or after the Offeror's purchase
of the Noma Shares, the Antitrust Division or the FTC could take such action
under the antitrust laws as either deems necessary or desirable in the public
interest, including seeking to enjoin the consummation of any such transactions
or to require the divestiture of Noma Shares acquired by the Offeror or the
divestiture of substantial assets of the Offeror, Noma or certain of their
affiliates. Private parties as well as state attorneys general may also bring
legal actions under the U.S. antitrust laws under certain circumstances. Based
upon General Chemical's discussions with Noma and its examination of publicly
available information with respect to Noma, General Chemical believes that the
acquisition of Noma Shares will not violate the antitrust laws. Nevertheless,
there can be no assurance that a challenge to the Offer on antitrust grounds
will not be made or, if such a challenge is made, of the result.
18. SOLICITING DEALER GROUP
ScotiaMcLeod Inc. has been retained by General Chemical to act as Dealer
Manager and to assemble a Soliciting Dealer Group comprised of members of the
Investment Dealers Association of Canada and members of the stock exchanges in
Canada for purposes of making solicitations for acceptances of the Offer.
General Chemical has agreed to pay the Dealer Manager a work fee of
$100,000 and will indemnify the Dealer Manager against certain liabilities.
General Chemical has also agreed to pay a solicitation fee of $0.05 per Noma
Share taken up and paid for under the Offer to the member of the Soliciting
Dealer Group whose name appears in the appropriate place on the Letter of
Transmittal accompanying a deposit of Noma Shares, provided that no such fee
shall by payable in respect of Noma Shares which are subject to a Lock-Up
Agreement. The aggregate amount of the solicitation fee in respect of any single
beneficial owner of Noma Shares shall not be less than $85 nor more than $1,500.
General Chemical may require any member of the Soliciting Dealer Group to
furnish evidence satisfactory to General Chemical of such beneficial ownership
before payment of such fee.
In the event that a bona fide competing bidder for the Noma Shares emerges
and the number of Noma Shares tendered to the Offer or subsequently acquired by
the Offeror is sufficient that the condition in paragraph (a) of
30
<PAGE> 32
Section 4 of the Offer to Purchase, "Conditions", is fulfilled, the Dealer
Manager is entitled to a success fee of $250,000. In the event that no such
competing bidder for the Noma Shares emerges, the success fee is: (i) $40,000
where the number of Noma Shares tendered to the Offer or subsequently acquired
by the Offeror is sufficient that the condition in paragraph (a) of Section 4 of
the Offer to Purchase, "Conditions", is fulfilled; or (ii) $100,000 where 90% of
each of the Class A Shares and the Class B Shares are tendered to the Offer or
subsequently acquired by the Offeror.
No brokerage fees or commissions will be payable by any Shareholder who
transmits Noma Shares directly to the Depositary or who uses the services of the
Dealer Manager or any member of the Soliciting Dealer Group in accepting the
Offer and in depositing Noma Shares with the Depositary.
19. DEPOSITARY
The Offeror has engaged Montreal Trust Company of Canada to act as
Depositary for the receipt of certificates in respect of Noma Shares and related
Letters of Transmittal and Notices of Guaranteed Delivery deposited under the
Offer. The Depositary has also been engaged to make the payments for Noma Shares
purchased by the Offeror pursuant to the Offer. The Depositary will receive
reasonable and customary compensation from the Offeror for its services in
connection with the Offer, will be reimbursed for certain out-of-pocket expenses
and will be indemnified against certain liabilities and expenses in connection
therewith.
20. LEGAL MATTERS
Certain legal matters relating to the Offer will be passed upon by, and the
opinions contained under Section 16 of this Circular, "Canadian Federal Income
Tax Considerations", have been provided by, McCarthy Tetrault.
21. STATUTORY RIGHTS
Securities legislation in certain of the provinces and territories of
Canada provides Shareholders with, in addition to any other rights they may have
at law, rights of rescission or to damages, or both, if there is a
misrepresentation in a circular or notice that is required to be delivered to
such Shareholders. However, such rights must be exercised within prescribed time
limits. Shareholders should refer to the applicable provisions of the securities
legislation of their province or territory for particulars of such rights or
consult with a lawyer.
31
<PAGE> 33
CONSENT OF COUNSEL
To: The Directors of Noma Acquisition Corp.
We hereby consent to the reference to our opinions contained under
"Canadian Federal Income Tax Considerations" in the Circular forming part of the
Offer dated March 10, 1999 made by Noma Acquisition Corp. to the shareholders of
Noma Industries Limited.
Toronto, Ontario (Signed) MCCARTHY TETRAULT
March 10, 1999
32
<PAGE> 34
APPROVAL AND CERTIFICATE
The contents of the Offer to Purchase and this Circular have been approved
and the sending, communication or delivery thereof to the Shareholders has been
authorized by the board of directors of the Offeror.
The foregoing contains no untrue statement of a material fact and does not
omit to state a material fact that is required to be stated or that is necessary
to make a statement not misleading in the light of the circumstances in which it
was made. In addition, the foregoing does not contain any misrepresentation
likely to affect the value or the market price of the Noma Shares.
Dated: March 10, 1999
(Signed) PAUL M. MEISTER
Chief Executive Officer
(Signed) TIMOTHY J. DURKIN
Chief Financial Officer
On behalf of the Board of Directors
(Signed) TODD M. DUCHENE
President and Director
(Signed) OWEN A. JOHNSON
Secretary and Director
33
<PAGE> 35
THE DEPOSITARY FOR THE OFFER IS:
MONTREAL TRUST COMPANY OF CANADA
FOR DELIVERY BY MAIL, HAND, COURIER OR FACSIMILE TRANSMISSION
VANCOUVER
Reorganization Department
510 Burrard Street
2nd Floor
Vancouver, British Columbia
V6C 3B9
Tel: (604) 661-0222
Fax: (604) 661-9480
TORONTO
Reorganization Department
151 Front Street West
8th Floor
Toronto, Ontario
M5J 2N1
Tel: (416) 981-9633
Fax: (416) 981-9600
Toll-Free: 1-800-663-9097
MONTREAL
Reorganization Department
1800 McGill College Avenue
6th Floor
Montreal, Quebec
H3A 3K9
Tel: (514) 982-7555
Fax: (514) 982-7347
THE DEALER MANAGER FOR THE OFFER IS:
SCOTIAMCLEOD INC.
Suite 6400
Scotia Plaza
40 King Street West
Toronto, Ontario
M5W 2X6
Tel: (416) 862-3090
Fax: (416) 862-3010
ANY QUESTIONS AND REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO THE DEALER
MANAGER OR THE DEPOSITARY AT THEIR RESPECTIVE OFFICES OR TELEPHONE NUMBERS SET
OUT ABOVE.
<PAGE> 1
[LOGO]
NOMA INDUSTRIES LIMITED
DIRECTORS' CIRCULAR
RECOMMENDING
ACCEPTANCE
OF THE OFFER
BY
NOMA ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
THE GENERAL CHEMICAL GROUP INC.
TO PURCHASE ALL OF THE CLASS A SHARES AND CLASS B SHARES
OF
NOMA INDUSTRIES LIMITED
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT SHAREHOLDERS ACCEPT THE OFFER AND DEPOSIT
THEIR CLASS A SHARES AND CLASS B SHARES UNDER THE OFFER.
MARCH 10, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
DIRECTORS' CIRCULAR......................................... 1
BACKGROUND TO THE OFFER..................................... 1
RECOMMENDATION AND REASONS FOR RECOMMENDATION............... 4
PRICE RANGE AND TRADING VOLUME OF COMMON SHARES............. 5
DIRECTORS AND SENIOR OFFICERS OF NOMA AND OWNERSHIP OF
SECURITIES................................................ 6
PRINCIPAL HOLDERS OF NOMA SECURITIES........................ 7
INTENTION WITH RESPECT TO THE OFFER......................... 7
TRADING IN SECURITIES OF NOMA............................... 7
ISSUANCES OF NOMA SECURITIES................................ 8
OPTION PLANS................................................ 8
OWNERSHIP OF SECURITIES OF THE OFFEROR...................... 8
RELATIONSHIP BETWEEN THE OFFEROR AND DIRECTORS, SENIOR
OFFICERS AND SHAREHOLDERS OF NOMA......................... 8
AGREEMENTS BETWEEN NOMA AND ITS DIRECTORS AND SENIOR
OFFICERS.................................................. 9
MATERIAL CHANGES IN THE AFFAIRS OF NOMA..................... 11
OTHER INFORMATION........................................... 11
STATUTORY RIGHTS............................................ 11
APPROVAL OF THE DIRECTORS' CIRCULAR AND NOTICE OF CHANGE.... 11
CERTIFICATE................................................. 13
</TABLE>
(i)
<PAGE> 3
[LOGO]
March 10, 1999
Dear Shareholder:
Noma Acquisition Corp., an indirect wholly-owned subsidiary of The General
Chemical Group Inc. ("GCG"), is mailing concurrently herewith its offer to
purchase all of Noma's Class A shares (the "Class A Shares") and Class B shares
(the "Class B Shares") for $9.25 cash per Class A Share and Class B Share (the
"Offer"). The Offer is conditional upon, among other things, the deposit of a
number of Noma Class A Shares and Class B Shares which constitutes at least
66 2/3% of each of the outstanding Class A Shares and Class B Shares of Noma on
a fully diluted basis, provided that, in any event, if less than 90% of the
outstanding Class A Shares or Class B Shares shall have been validly deposited
under the Offer, there shall have been validly deposited under the Offer a
majority of the outstanding shares of each class owned by holders other than the
Principal Vendors (as hereinafter defined). As of the date hereof, the holders
of approximately 15.7% of the Class A Shares and approximately 83.6% of the
Class B Shares of Noma on a fully-diluted basis (the "Principal Vendors") have
agreed irrevocably to tender their Class A Shares and Class B Shares to the
Offer.
YOUR BOARD OF DIRECTORS, AFTER RECEIVING THE RECOMMENDATION OF THE
INDEPENDENT COMMITTEE OF DIRECTORS WHO ARE INDEPENDENT OF MANAGEMENT AND THE
MAJOR SHAREHOLDERS, HAS DETERMINED THAT THE OFFER IS FAIR TO NOMA SHAREHOLDERS
FROM A FINANCIAL POINT OF VIEW AND THAT THE OFFER IS IN THE BEST INTERESTS OF
NOMA AND ITS SHAREHOLDERS. THE BOARD OF DIRECTORS HAS UNANIMOUSLY RECOMMENDED
THAT YOU ACCEPT THE OFFER AND TENDER YOUR CLASS A SHARES AND CLASS B SHARES TO
THE OFFER.
In reaching its conclusions, the Board, assisted by its financial and legal
advisors, carefully considered all aspects of the Offer as well as the factors
described in the enclosed Directors' Circular. In examining the Offer, you might
wish to consider that:
(1) the Offer was the best alternative among the opportunities available
to Noma at the time of the Board's consideration of the Offer based on
a comprehensive review over the past several months by management of
Noma and by Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") (as financial advisor to Noma) of various strategic
alternatives available to Noma and its shareholders and their
assessment of Noma's businesses, financial condition, results of
operations and future prospects;
(2) the Independent Committee of Directors has received an opinion from
DLJ stating that the consideration provided by the Offer is fair from
a financial point of view to Noma shareholders;
(3) the Principal Vendors have agreed irrevocably to tender their Class A
Shares and Class B Shares to the Offer; and
(4) the price offered by GCG is at a premium of approximately 77.4% to the
simple average of the closing price of the Class A Shares and 71.0% to
the simple average of the closing price of the Class B Shares for the
30 trading days ending November 6, 1998, being the last day on which
the Shares traded prior to the first public announcement by the
Company of the retention of DLJ as the financial advisor to Noma to
explore shareholder value enhancement alternatives.
We urge you to read the enclosed material carefully. If you have any
questions about the Offer or require any assistance with the enclosed material
or depositing your Class A Shares or Class B Shares to the Offer, please call
one of the individuals named on the last page of the enclosed material.
Sincerely,
[LOGO]
H. Thomas Beck
Chairman of the Board of Directors
On behalf of the Board of Directors
<PAGE> 4
DIRECTORS' CIRCULAR
This Directors' Circular is issued by the board of directors (the "Board of
Directors") of Noma Industries Limited ("Noma" or the "Company") in connection
with the offer publicly announced by The General Chemical Group Inc. ("GCG") on
March 1, 1999 and made by Noma Acquisition Corp. (the "Offeror"), an indirect
wholly-owned subsidiary of GCG, to purchase all of the Class A shares (the
"Class A Shares") and Class B shares (the "Class B Shares") (the Class A Shares
and the Class B Shares are collectively referred to as the "Shares") of Noma
upon the terms and subject to the conditions set forth in the offer and
accompanying circular (the "Offering Circular") of the Offeror dated March 10,
1999 (the "Offer"). All information provided herein relating to GCG or the
Offeror is based on public information made available by GCG. All amounts in
this Directors' Circular are expressed in Canadian dollars, unless otherwise
indicated.
BACKGROUND TO THE OFFER
On November 9, 1998, Noma publicly announced that it had retained
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") to act as its
financial advisor and to identify and evaluate strategic alternatives to enhance
shareholder value.
Following the announcement, DLJ solicited expressions of interest from a
significant number of potential investors. In exploring the possibility of
finding a strategic partner, DLJ canvassed an extensive list of potential
strategic and financial partners in Canada, the United States and Europe, and
held discussions with several candidates who expressed interest in either
acquiring or merging with Noma. After executing confidentiality agreements,
these candidates were permitted to conduct a review of certain confidential
information in order to assist them in evaluating Noma.
After further discussions and presentations, certain potential investors
were invited to make firm offers for an investment in Noma. In response to this
invitation, GCG indicated its willingness to make a proposal to acquire Noma
through a public take-over bid, subject to the negotiation of an acceptable
acquisition agreement with Noma and acceptable lock-up arrangements with certain
principal shareholders. Upon the completion of its preliminary due diligence,
and following a request from Noma, GCG submitted its initial written proposal on
February 11, 1999. Shortly thereafter, GCG made a firm proposal which resulted
in GCG, the Offeror and Noma entering into an acquisition agreement after the
close of business on February 26, 1999 (the "Acquisition Agreement") and the
Offeror making the Offer. In addition, on being satisfied as to the price
proposed by GCG for the Shares, Henry Thomas Beck, Fernhill Holdings Limited,
Glasmar Holdings Ltd., Second Theresa Beck Family Trust and Ocassa Holdings Ltd.
(collectively, the "Principal Vendors") entered into lock-up agreements (the
"Lock-Up Agreements") after the close of business on February 26, 1999 whereby
they each agreed to irrevocably tender their Shares to the Offer.
On February 26, 1999, the Board of Directors of Noma met and, after
considering all relevant factors, approved the form of the Acquisition Agreement
and authorized its execution. The terms of the Acquisition Agreement and Lock-Up
Agreements are described in the Offering Circular. Under the Acquisition
Agreement, the Offeror is obligated to take up and pay for the Class A Shares
and Class B Shares deposited under the Offer, subject to satisfaction of the
conditions of the Offer, including that at least 66 2/3% of the outstanding
Shares of each class (in each case calculated on a fully diluted basis) be
tendered to the Offer and provided that, in any event, if less than 90% of the
outstanding Shares of either class shall have been validly deposited under the
Offer, there shall have been validly deposited under the Offer a majority of the
outstanding Shares of each class owned by holders other than the Principal
Vendors. Under the Lock-Up Agreements, each of the Principal Vendors has
irrevocably agreed to tender its Shares to the Offer, subject to certain
conditions under the Acquisition Agreement. Noma has agreed to recommend
acceptance of the Offer to its shareholders, subject to the fiduciary duties of
the Board of Directors. In addition, the Acquisition Agreement provides that the
Offer is subject to the continuing compliance of all covenants, representations
and warranties of Noma under the Acquisition Agreement.
Press releases announcing the Offer were issued by GCG and Noma on the
morning of March 1, 1999.
1
<PAGE> 5
INDEPENDENT COMMITTEE
In anticipation of a possible transaction by Noma, an independent committee
of the Board of Directors was appointed consisting of three Directors who were
neither members of management nor connected with a major shareholder (the
"Independent Committee"). Messrs. T. Iain Ronald, F. Ross Johnson and Jean-Guy
Gauthier were so appointed on November 9, 1998. The mandate of the Independent
Committee was to:
(1) assist the Board of Directors in the consideration of various
strategic alternatives available to maximize shareholder value for the
benefit of all shareholders;
(2) consider and advise the Board of Directors as to whether any
particular alternative was in the best interests of the Company and
its shareholders; and
(3) to consider all such other matters that it may deem relevant.
The Independent Committee was authorized to retain legal counsel and
financial advisors. On November 18, 1998, the Independent Committee retained
legal counsel to advise as to the duties and responsibilities of the Independent
Committee and as to the appropriate proceedings to follow in furtherance of its
mandate. Between November 9, 1998, the date the Independent Committee was
formed, and February 26, 1999, the date the Independent Committee delivered its
report to the Board of Directors, the Independent Committee met on five
occasions and had numerous informal discussions with its advisors in the course
of carrying out its mandate.
DLJ assisted the Independent Committee and the Board of Directors in
examining the Offer including the fairness of the Offer from a financial point
of view to the holders of the Shares. The terms of DLJ's engagement are
contained in the engagement letter with the Company dated September 15, 1998.
On February 26, 1999, the Independent Committee received the fairness
opinion from DLJ and delivered a report to the Board of Directors confirming
that it was the Independent Committee's view that the Offer is fair from a
financial point of view to the shareholders of Noma and unanimously recommended
approval of the Acquisition Agreement by the Board of Directors.
THE OFFER
Pursuant to the Offer, the Offeror has offered to purchase, upon the terms
and subject to the conditions set forth in the Offer, all of the Class A Shares
and Class B Shares on a fully-diluted basis for $9.25 cash per Class A Share and
Class B Share. The Offer is subject to certain conditions including, without
limitation, the valid deposit of not less than 66 2/3% of each of the
outstanding Class A Shares and Class B Shares (in each case calculated on a
fully diluted basis), provided that, in any event, if less than 90% of the
outstanding Shares of either class shall have been validly deposited under the
Offer, there shall have been validly deposited under the Offer a majority of the
outstanding Shares of each class owned by holders other than the Principal
Vendors which shall not have been withdrawn at the expiry time of the Offer.
The period for acceptance of the Offer begins on March 10, 1999 and extends
until 5:00 p.m. (Toronto time) on March 31, 1999, subject to certain rights of
extension and withdrawal.
Incorporated shareholders that own Class A Shares or Class B Shares
indirectly through one or more single-purpose holding corporations incorporated
after February 26, 1999, may elect to accept the Offer by depositing all of the
shares of those holding corporations under the Offer upon complying with the
conditions described in the Offering Circular (the "Holdco Alternative").
FOR A MORE COMPLETE DESCRIPTION OF THE OFFER, REFERENCE SHOULD BE MADE TO
THE OFFERING CIRCULAR AND THE RELATED LETTER OF TRANSMITTAL AND NOTICE OF
GUARANTEED DELIVERY WHICH ARE BEING MAILED TO NOMA SHAREHOLDERS CONCURRENTLY
HEREWITH.
THE ACQUISITION AGREEMENT
GCG, the Offeror and Noma have entered into the Acquisition Agreement
pursuant to which GCG agreed to cause the Offeror to make the Offer. The
Acquisition Agreement provides that GCG will not amend the terms of the Offer
other than to increase the consideration payable thereunder, to extend the
expiry thereof, to waive any conditions thereof or to comply with securities
laws, except with the prior consent of Noma. Other material terms of the
Acquisition Agreement are set out below.
2
<PAGE> 6
Approval of Offer by Noma Directors
Pursuant to the Acquisition Agreement, Noma confirmed that the Board of
Directors, upon consultation with its advisors, has determined unanimously that:
(i) the Offer is fair from a financial point of view to Noma shareholders and
the Acquisition Agreement is in the best interests of Noma; and (ii) the Board
of Directors will recommend that Noma shareholders accept the Offer.
Non-Solicitation
In the Acquisition Agreement, Noma has agreed that it will not, directly or
indirectly, through any officer, director, employee, representative or agent of
Noma or of any of its subsidiaries, solicit or encourage (including by way of
furnishing information or entering into any form of agreement, arrangement or
understanding) the initiation of any take-over bid, tender offer or exchange
offer (other than the Offer), merger, amalgamation, plan of arrangement,
reorganization, consolidation, business combination, reverse take-over, sale of
assets (other than in the ordinary course of business), sale of securities
(other than pursuant to the exercise of currently outstanding stock options),
recapitalization, liquidation, dissolution, winding-up or similar transactions
involving Noma or any of its subsidiaries (any of the foregoing being referred
to as a "Transaction Proposal"), but nothing in the Acquisition Agreement
prevents the Board of Directors from considering, negotiating, approving and
recommending to Noma shareholders an unsolicited bona fide written Transaction
Proposal in respect of which adequate financial arrangements are in place, which
the Board of Directors determines in good faith (after consultation with its
financial advisors and after receiving a written opinion of outside counsel, or
oral advice of outside counsel that is reflected in the minutes of the Board of
Directors, to the effect that the Board of Directors is required to do so in
order to discharge properly its fiduciary duties) would, if consummated in
accordance with its terms, result in a transaction more favourable to Noma
shareholders than the Offer (any such Transaction Proposal being referred to as
a "Superior Proposal").
Noma has agreed to immediately cease and cause to be terminated any
existing discussions or negotiations with any parties (other than GCG) with
respect to any potential Transaction Proposal.
Noma has agreed to immediately notify GCG of any future Transaction
Proposal or of any written request for non-public information relating to Noma
or any of its subsidiaries in connection with a Transaction Proposal or for
access to the properties, books or records of Noma or any subsidiary by any
person or entity that informs any member of the Board of Directors of Noma or
such subsidiary that it is considering making, or has made, a Transaction
Proposal. If the Board of Directors receives a request for material non-public
information from a party proposing a Superior Proposal, then and only then, Noma
may provide such party with access to information regarding Noma, provided that
(i) such party shall have first executed and delivered a confidentiality
agreement in substantially the same form and containing the same restrictions
and limitations as are set forth in the confidentiality agreement dated November
9, 1998 between GCG and Noma, and (ii) any information provided to any such
party that has not already been provided to GCG is concurrently provided to GCG.
Noma also has waived the standstill provisions and any other applicable
restrictions under its confidentiality agreement with GCG to the extent
necessary to permit the Offeror to make and complete the Offer.
Composition of the Board of Directors
Under the Acquisition Agreement, provided that at least 66 2/3% of the
outstanding Class B Shares are acquired pursuant to the Offer, if requested by
the Offeror, Noma shall as soon as practicable following the first take-up of
and payment for the Class B Shares pursuant to the Offer, cause such persons as
may be designated or selected by GCG to be elected or appointed as the directors
of Noma and its subsidiaries and for all or any of the then directors of Noma
and its subsidiaries designated by GCG to resign. If less than 66 2/3%, but at
least a majority of the outstanding Class B Shares are acquired pursuant to the
Offer, if requested by the Offeror, Noma shall as soon as practicable following
the first take-up and payment for the Class B Shares pursuant to the Offer,
cause the Applicable Percentage (as hereinafter defined) of directors of Noma
and such subsidiaries as may be requested by GCG (and of members of each
committee of the board of directors of Noma) to consist of persons designated or
selected by GCG. The "Applicable Percentage" means the ratio of (i) the total
voting power of all Class B Shares accepted for payment and taken up and paid
for pursuant to the Offer to (ii) the total voting power of the outstanding
Class B Shares rounded to the nearest whole number and expressed as a
percentage, and all numbers of directors or numbers calculated thereby will be
rounded to the next highest director or number. At the request of GCG, such
directors will take their seats on the board of directors of Noma by means of
increasing the size of the
3
<PAGE> 7
board or seeking the resignation of directors specified by GCG and causing GCG's
designees to be nominated for election. GCG intends to proceed as expeditiously
as is practicable to cause the Applicable Percentage of members of the Board of
Directors (and the board of directors of each subsidiary of Noma as may be
requested by GCG) to consist of persons designated or selected by GCG.
Non-Completion Fee
Noma has agreed to pay to GCG a non-completion fee of $10,000,000 in the
event that: (i) the Board of Directors withdraws or modifies (including by
amendment of this Directors' Circular), in a manner determined by GCG to be
adverse to GCG or the Offeror, the Board's approval or recommendation, or any of
its determinations, in respect of the Offer, the Acquisition Agreement or the
transactions contemplated thereby, or resolves to do so; or (ii) Noma breaches
the Acquisition Agreement in any material respect including a breach of any
representation, warranty, covenant or agreement on the part of Noma (any such
circumstance being a "Fee Event"). Noma will pay this fee to GCG within one
business day after the occurrence of a Fee Event.
Termination
The Acquisition Agreement may be terminated: (i) by a written agreement
executed by Noma, GCG and the Offeror; (ii) by Noma, GCG or the Offeror if any
court of competent jurisdiction or other governmental body located or having
jurisdiction within Canada or the United States shall have issued a final order,
decree or ruling or taken any other final action restraining, enjoining or
otherwise prohibiting the Offer and such order, decree, ruling or other action
is or shall have become final and non-appealable; provided that such right of
termination shall not be available to any party if such party shall have failed
to make reasonable efforts to prevent or contest the imposition of such
injunction or action and such failure materially contributed to such position;
(iii) by Noma, if the Class A Shares or Class B Shares deposited under the Offer
have not, for any reason whatsoever, been taken up and paid for on or before 120
days after the date of mailing of the Offer to shareholders of Noma; (iv) by
Noma, if there is a material breach of representation or warranty, covenant or
agreement on the part of GCG or the Offeror contained in the Acquisition
Agreement; (v) by Noma if any amendment to the Offer, other than a permitted
variation of the terms of the Offer described under "The Acquisition Agreement"
above in this Directors' Circular or any amendment to the Offer that has been
mutually agreed to by the parties, does not conform in all material respects
with the terms of the Offer set forth in the Acquisition Agreement or any
amendment thereof that has been mutually agreed to by the parties; (vi) by Noma
if the Offer has been terminated, withdrawn or expires; (vii) by GCG or the
Offeror if the Offer has been terminated, withdrawn or otherwise expires in
accordance with its terms; or (vii) by GCG or the Offeror if any event described
under "Non-Completion Fee" above in this Directors' Circular occurs, provided
that Noma's obligations to GCG summarized in such section shall survive any
termination of the Acquisition Agreement.
RECOMMENDATION AND REASONS FOR RECOMMENDATION
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT NOMA SHAREHOLDERS ACCEPT
THE OFFER AND THAT NOMA SHAREHOLDERS DEPOSIT THEIR CLASS A SHARES AND CLASS B
SHARES UNDER THE OFFER BY COMPLETING AND RETURNING THE LETTERS OF TRANSMITTAL
THAT ACCOMPANY THE OFFER.
In arriving at its recommendation, the Board of Directors, after receiving
the recommendation of the Independent Committee and with the assistance of its
financial and legal advisors, carefully considered the Offer and other possible
transactions identified in the process that the Board of Directors has pursued.
The principal factors taken into consideration by the Board of Directors in
assessing the Offer and deciding to recommend acceptance of the Offer are as
follows:
- management of Noma and DLJ (as financial advisor to Noma) conducted a
comprehensive review over the past several months of various strategic
alternatives available to Noma and its shareholders for the purpose of
maximizing value, and based on such review, management and DLJ have
determined that the Offer was the best alternative among the
opportunities available to Noma at the time of the Board of Directors'
consideration of the Offer;
- the Independent Committee has received an opinion letter dated February
26, 1999 from DLJ stating that, in its opinion, the consideration
provided by the Offer is fair from a financial point of view to Noma
shareholders. The opinion of DLJ is reproduced in full as Schedule "A";
4
<PAGE> 8
- holders of Class A Shares representing approximately 15.7% of the issued
and outstanding Class A Shares on a fully-diluted basis and holders of
Class B Shares representing approximately 83.6% of the issued and
outstanding Class B Shares on a fully-diluted basis have agreed
irrevocably to tender their Class A Shares and Class B Shares to the
Offer; and
- the price offered by GCG is at a premium of approximately 77.4% to the
simple average of the closing price of the Class A Shares and 71.0% to
the simple average of the closing price of the Class B Shares for the 30
trading days ending November 6, 1998, being the last day on which the
Shares traded prior to the first public announcement by the Company of
the retention of DLJ as the financial advisor to Noma to explore
shareholder value enhancement alternatives.
The holders of Class A Shares and Class B Shares should nevertheless
consider the Offer carefully and make their own decisions as to acceptance or
rejection of the Offer.
PRICE RANGE AND TRADING VOLUME OF COMMON SHARES
The Class A Shares and the Class B Shares are listed on The Toronto Stock
Exchange (the "TSE"). The following table sets forth the market price range and
trading volume of the Class A Shares and the Class B Shares on the TSE for the
periods indicated:
<TABLE>
<CAPTION>
CLASS A SHARES CLASS B SHARES
------------------------------ ---------------------------
HIGH ($) LOW ($) VOLUME HIGH ($) LOW ($) VOLUME
-------- ------- --------- -------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
1998
March........................................ 8.10 7.05 1,178,067 7.90 7.10 8,150
April........................................ 8.30 7.15 787,771 8.30 7.20 2,700
May.......................................... 9.10 7.50 787,259 8.90 7.75 3,500
June......................................... 8.70 7.90 1,569,932 8.25 8.00 800
July......................................... 8.20 6.50 859,515 8.25 6.70 4,010
August....................................... 6.75 4.95 866,863 4.75 4.75 100
September.................................... 5.40 4.65 358,375 5.75 5.75 26
October...................................... 6.50 4.10 734,906 4.40 4.40 2,400
November..................................... 8.55 6.10 1,922,152 8.65 6.55 24,080
December..................................... 10.10 7.60 956,873 10.00 7.70 2,700
1999
January...................................... 9.60 8.60 1,162,197 9.10 8.50 8,700
February..................................... 9.45 8.85 1,031,202 9.50 9.00 5,750
March 1 - 9.................................. 9.15 9.00 5,427,960 9.05 9.00 1,600
</TABLE>
On November 9, 1998, Noma publicly announced that it had retained DLJ to
act as its financial advisor and to identify and evaluate strategic alternatives
to enhance shareholder value. The closing trading prices of the Class A Shares
and Class B Shares on the TSE on November 6, 1998, the last trading day prior to
the announcement were $6.60 and $6.55, respectively. The Offer price of $9.25
per Class A Share and Class B Share represents a premium of approximately 77.4%
to the simple average of the closing price of the Class A Shares and 71.0% to
the simple average of the closing price of the Class B Shares for the 30 trading
days ending November 6, 1998 on the TSE.
The announcement of the entering into the Acquisition Agreement, the
intention of GCG to make the Offer and the approval of the Offer by the Board of
Directors of Noma was made on March 1, 1999. The closing trading prices of the
Class A Shares and Class B Shares on the TSE on February 26, 1999, the last day
of trading prior to this announcement, were $9.40 and $9.00, respectively.
5
<PAGE> 9
DIRECTORS AND SENIOR OFFICERS
OF NOMA AND OWNERSHIP OF SECURITIES
The following table sets out the names and positions with Noma of each
director and each senior officer of Noma and the number and percentage of
outstanding securities beneficially owned, directly or indirectly, or over which
control or direction is exercised by each such person and, where known after
reasonable inquiry, by their respective associates.
<TABLE>
<CAPTION>
PERCENTAGE
OF TOTAL PERCENTAGE OPTIONS TO
CLASS A OF TOTAL ACQUIRE
CLASS A NON-VOTING CLASS B CLASS A PERCENTAGE
NON-VOTING SHARES CLASS B SHARES NON-VOTING OF OPTIONS
NAME POSITION(S) WITH NOMA SHARES(1) OUTSTANDING SHARES(1) OUTSTANDING SHARES OUTSTANDING
- ---- --------------------- ---------- ----------- --------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
H. Thomas Beck........ Director, Chairman of the 4,794,800(2) 16.47% 4,989,496(2) 83.61% -- --
Board
Catherine A. Beck..... President and Chief 21,300 0.07% 34,400 0.58% 433,000 31.14%
Executive Officer and
Director
James D. Fleck........ Director 10,000 0.03% 8 (3) 20,000 1.4%
Jean-Guy Gauthier..... Director 5,000 0.02% NIL NIL 20,000 1.4%
Martin Goldfarb....... Director 5,000 0.02% NIL NIL 15,000 1.1%
F. Ross Johnson....... Director 20,000 0.07% NIL NIL 20,000 1.4%
Dale H. Lastman....... Director NIL NIL NIL NIL 20,000 1.4%
Brian A. Robbins...... Director 100,000 0.34% NIL NIL 20,000 1.4%
T. Iain Ronald........ Director 3,000 0.01% NIL NIL 20,000 1.4%
Barrie D. Rose........ Director 10,000 0.03% 76,400 1.28% 20,000 1.4%
Douglas G. Shields.... Executive Vice-President, 3,700 0.01% NIL NIL 190,000 13.67%
Chief Financial Officer
and Secretary
Shlomo Brenner........ President, Electrical 22,800(4) 0.08% 2,900 0.05% 178,000 12.80%
Assemblies
Stephen L. Ferguson... Vice-President, Corporate 14,900(5) 0.05% NIL NIL 110,000 7.91%
Development
</TABLE>
Notes:
(1) The information as to Class A Shares and Class B Shares beneficially owned,
directly or indirectly, or over which control or direction is exercised, not
being within the knowledge of the Company has been furnished by the
respective directors and senior officers.
(2) For details of these shareholdings refer to "Principal Holders of Noma
Securities".
(3) Less than .01%
(4) Of the total number of Class A Shares held by Mr. Brenner, 6,600 Class A
Shares were purchased pursuant to the Company's share purchase plan and are
held in trust by Barrie D. Rose.
(5) The above noted holdings of Class A Shares held by Mr. Ferguson are owned by
970164 Ontario Inc., a company controlled by Mr. Ferguson.
6
<PAGE> 10
PRINCIPAL HOLDERS OF NOMA SECURITIES
To the knowledge of the directors and senior officers of the Company, the
only persons who beneficially own, directly or indirectly, or exercise control
or direction over Shares comprising more than 10% of the voting rights attached
to any class of outstanding voting securities of the Company entitled to be
voted at the meeting are Henry Thomas Beck and Second Theresa Beck Family Trust
or entities controlled by or associated with them (the "Principal
Shareholders").
<TABLE>
<CAPTION>
PERCENTAGE OF
TOTAL CLASS A PERCENTAGE OF
NUMBER OF CLASS A NON-VOTING NUMBER OF CLASS B TOTAL CLASS B
TYPE OF NON-VOTING SHARES SHARES SHARES SHARES
SHAREHOLDER OWNERSHIP OWNED OR CONTROLLED OUTSTANDING OWNED OR CONTROLLED OUTSTANDING
- ----------- ------------- ------------------- ------------- ------------------- -------------
<S> <C> <C> <C> <C> <C>
Henry Thomas Beck....... of record and NIL NIL 1,496 0.03%
beneficially
Fernhill Holdings
Limited(1)............ of record and 1,980,000 6.80% 2,720,000 45.58%
beneficially
Glasmar Holdings
Ltd.(1)............... of record and NIL NIL 28,050 0.47%
beneficially
Second Theresa Beck
Family Trust(1)....... of record and NIL NIL 96,750 1.62%
beneficially
Ocassa Holdings
Ltd.(1)............... of record and 2,814,800 9.67% 2,143,200 35.92%
beneficially
</TABLE>
- ---------------
Notes:
(1) Mr. Beck controls Fernhill Holdings Limited and is a Trustee of Second
Theresa Beck Family Trust, which controls Glasmar Holdings Ltd. Mr. Beck
also owns sufficient voting non-participating securities in Ocassa Holdings
Ltd. to control this company.
INTENTION WITH RESPECT TO THE OFFER
Each of the directors and senior officers of Noma and their respective
associates has indicated that he or she intends to accept the Offer, both with
respect to Class A Shares and Class B Shares currently owned and with respect to
Class A Shares issuable upon the exercise of options held by such persons.
TRADING IN SECURITIES OF NOMA
During the six months preceding the date hereof, none of Noma, or the
directors and the senior officers of Noma or, to the knowledge of the directors
and senior officers of Noma after reasonable inquiry, any of their respective
associates, has traded any securities or rights to acquire securities of Noma
except for the trades listed below under the heading entitled "Issuances of Noma
Securities".
The directors and senior officers of Noma have no knowledge of any trades
during the six months preceding the Offer by the Principal Shareholders in
securities or rights to acquire securities of Noma.
No director or senior officer of Noma intends to purchase securities of
Noma before the expiry of the Offer or knows of the existence of such intention
on the part of any other person other than pursuant to the exercise of existing
options to purchase Class A Shares (the "Options") which will be conditionally
exercised to enable the underlying Class A Shares to be tendered to the Offer.
See "Option Plans".
7
<PAGE> 11
ISSUANCES OF NOMA SECURITIES
No Class A Shares or Class B Shares or securities convertible into Class A
Shares or Class B Shares have been issued to the directors or members of the
senior management of Noma during the two years preceding the date of this
Directors' Circular, other than as indicated below:
GRANTS OF OPTIONS PURSUANT TO OPTION PLANS
<TABLE>
<CAPTION>
NUMBER OF
GRANTEE OPTIONS GRANTED(1) DATE OF GRANT EXERCISE PRICE EXPIRY DATE
- ------- ------------------ ----------------- -------------- -----------------
<S> <C> <C> <C> <C>
Catherine A. Beck......... 250,000 June 18, 1997 5.00 June 18, 2002
Jean-Guy Gauthier......... 20,000 June 18, 1998 8.40 June 18, 2003
Dale H. Lastman........... 20,000 June 18, 1998 8.40 June 18, 2003
Douglas G. Shields........ 60,000 June 18, 1997 5.00 June 18, 2002
Douglas G. Shields........ 90,000 February 24, 1998 6.65 February 24, 2003
Shlomo Brenner............ 90,000 February 24, 1998 6.65 February 24, 2003
Stephen L. Ferguson....... 50,000 February 24, 1998 6.65 February 24, 2003
</TABLE>
- ---------------
Notes:
(1) Each option entitles the holder to acquire one Class A Share.
OPTION PLANS
Noma has 1,390,400 options outstanding pursuant to the Noma Incentive Stock
Option Plan implemented on December 1, 1985, as amended and the Noma Directors'
Stock Option Plan implemented on February 16, 1995, as amended (collectively the
"Option Plans"). The Option Plans provide for the acceleration of all options if
Class B Shares are tendered to a take-over bid which results in the Offeror
holding more than 50% of the Class B Shares. The Option Plans also permit each
holder of Options to conditionally exercise his or her Options with respect to
all of the Class A Shares subject to the Option and not yet purchased thereunder
and to tender such shares into the Offer, conditional upon the take-up of shares
under the Offer.
OWNERSHIP OF SECURITIES OF THE OFFEROR
None of Noma or the directors and senior officers of Noma or, to the
knowledge of the directors and senior officers of Noma after reasonable inquiry,
none of their respective associates and none of the Principal Shareholders, owns
(directly or indirectly), or exercises control or direction over, securities of
the Offeror or GCG other than Shlomo Brenner who owns 300 shares of Common Stock
of GCG.
RELATIONSHIP BETWEEN THE OFFEROR AND DIRECTORS,
SENIOR OFFICERS AND SHAREHOLDERS OF NOMA
Except for the Lock-Up Agreements which have been entered into between the
Offeror, GCG and the Principal Vendors, no contracts, arrangements or agreements
(including any contracts, arrangements or agreements as to any payments or other
benefits to be made or given by way of compensation for loss of office or as to
the directors or senior officers of Noma remaining or retiring from office if
the Offer is successful) have been made or are proposed to be made between GCG
or the Offeror and any of the directors or senior officers of Noma. None of the
directors or officers of Noma are directors or officers of GCG or the Offeror or
any subsidiary of GCG or the Offeror. Except as set forth below, none of the
directors and senior officers of Noma or, to the knowledge of the directors and
senior officers of Noma after reasonable inquiry, none of their respective
associates and none of the Principal Shareholders, has any interest in any
material contract to which GCG or the Offeror is a party.
Except for the Lock-Up Agreements which have been entered into between the
Offeror, GCG and the Principal Vendors, to the knowledge of the directors and
senior officers of Noma, no special contract, arrangement or understanding,
formal or informal, has been made or proposed to be made between GCG or the
Offeror and any Noma shareholder with respect to the Offer.
8
<PAGE> 12
AGREEMENTS BETWEEN NOMA AND ITS
DIRECTORS AND SENIOR OFFICERS
Each of the senior officers of Noma listed under "Directors and Senior
Officers of Noma and Ownership of Securities" has a change of control agreement
with Noma.
CHANGE OF CONTROL AGREEMENTS
As a result of the uncertainty surrounding a potential change of control of
Noma and in order to keep the members of senior management of Noma motivated
throughout the process, the Compensation Committee of the Board of Directors
agreed with each member of senior management to enter into agreements (the
"Change of Control Agreements") relating to certain benefits to be received by
such individuals on a change of control of Noma and certain additional benefits
to be received in the event that their employment is terminated under certain
specified circumstances (as described below) subsequent to a Change of Control
Date. A "Change of Control Date" is defined as the date on which any person
becomes the beneficial owner of over fifty percent (50%) of the outstanding
voting shares of Noma.
Pursuant to the Change of Control Agreement entered into between Noma and
Catherine Beck, President and Chief Executive Officer of Noma, on a Change of
Control Date, Ms. Beck will receive a lump sum payment of $400,000 and all of
the stock options granted to her shall be deemed to have fully vested and shall
be fully exercisable.
In the event that Noma terminates Ms. Beck's employment within one (1) year
of the Change of Control Date, or in the event that Ms. Beck terminates her
employment with Noma for any reason whatsoever no earlier than sixty (60) days
following the Change of Control Date and no later than one-hundred and eighty
(180) days following the Change of Control Date, Ms. Beck will receive the
following additional benefits:
(a) a lump sum equal to the aggregate of: (i) an amount equal to
twenty-four (24) months of Ms. Beck's annual salary at the time of the
termination of her employment; (ii) an amount equal to thirty-six (36)
times the monthly car allowance payment paid to Ms. Beck immediately
prior to the date of the termination of her employment; and (iii) an
amount equal to three-hundred percent (300%) of the maximum permitted
contribution to be made to Ms. Beck's Registered Retirement Savings
Plan for the year in which the termination of her employment occurs;
and
(b) all existing benefits coverage in favour of Ms. Beck, including life,
medical and dental (but not including long-term disability coverage),
shall be maintained by Noma until thirty-six (36) months following the
date of termination.
Provided that Ms. Beck's employment has not been terminated following the
Change of Control Date, she will continue to receive the same salary, vacation
pay, car allowance, Registered Retirement Savings Plan contributions and
benefits that she was receiving prior to the Change of Control Date.
Pursuant to the Change of Control Agreement entered into between Noma and
Douglas Shields, Executive Vice-President and Chief Financial Officer of Noma,
on a Change of Control Date Mr. Shields will receive a lump sum payment of
$750,000 and all of the stock options granted to Mr. Shields shall be deemed to
have fully vested and shall be fully exercisable.
In the event that Noma terminates Mr. Shields' employment within one (1)
year of the Change of Control Date, or in the event that Mr. Shields terminates
his employment with Noma for any reason whatsoever no earlier than one (1) year
following the Change of Control Date and no later than thirteen (13) months
following the Change of Control Date, Mr. Shields will receive the following
additional benefits:
(a) a lump sum equal to the aggregate of: (i) an amount equal to twelve
(12) months of Mr. Shields' annual base salary at the time of the
termination of his employment; (ii) an amount equal to the maximum
bonus payable to Mr. Shields, which maximum bonus is thirty percent
(30%) of his annual base salary; (iii) an amount equal to twelve (12)
times the monthly car allowance payment paid to Mr. Shields
immediately prior to the date of the termination of his employment;
and (iv) an amount equal to the maximum permitted contribution to be
made to Mr. Shields' Registered Retirement Savings Plan for the year
in which the termination of his employment occurs; and
9
<PAGE> 13
(b) all existing benefits coverage in favour of Mr. Shields, including
life, medical and dental (but not including long-term disability
coverage), shall be maintained by Noma until one (1) year following
the date of termination.
Provided that Mr. Shields' employment has not been terminated following the
Change of Control Date, he will continue to receive the same base salary, bonus,
vacation pay, car allowance, Registered Retirement Savings Plan contributions
and benefits that he was receiving prior to the Change of Control Date. Mr.
Shields has agreed to remain employed with Noma as the Chief Financial Officer
for one (1) year.
Pursuant to the Change of Control Agreement entered into between Noma and
Shlomo Brenner, President, Electrical Assemblies, on a Change of Control Date
Mr. Brenner will receive a lump sum payment of $400,000, all of the stock
options granted to Mr. Brenner shall be deemed to have fully vested and shall be
fully exercisable and Mr. Brenner's balance under the EVA Bank Plan (which as of
the date hereof is $490,699) will become due and payable and will be paid to
him.
In the event that Noma terminates Mr. Brenner's employment other than for
cause at any time between the Change of Control Date and December 31, 2000, or
in the event that Mr. Brenner terminates his employment with Noma because of a
Good Reason (which is defined in his Change of Control Agreement as: (i) the
assignment to him of any duties materially inconsistent with his positions,
duties and responsibilities; (ii) a material reduction of his positions, duties
and responsibilities; (iii) a reduction in his salary; (iv) the failure by Noma
to continue in effect any incentive or compensation plan, or any pension, life
insurance, health and accident or disability plan in which he is participating;
or (v) a request by Noma for him to relocate to a location outside of the
Greater Metropolitan Toronto area which request he denies), Mr. Brenner will
receive the following additional benefits:
(a) a lump sum equal to the aggregate of: (i) an amount equal to
twenty-four (24) months of Mr. Brenner's annual base salary at the
time of the termination of his employment; (ii) an amount equal to two
(2) times the maximum annual bonus payable to Mr. Brenner, which
maximum bonus is one-hundred percent (100%) of his annual base salary;
(iii) an amount equal to twenty-four (24) times the monthly car
allowance payment paid to Mr. Brenner immediately prior to the date of
the termination of his employment; and (iv) an amount equal to
two-hundred percent (200%) of the maximum permitted contribution to be
made to Mr. Brenner's Registered Retirement Savings Plan for the year
in which the termination of his employment occurs; and
(b) all existing benefits coverage in favour of Mr. Brenner, including
life, medical and dental (but not including long-term disability
coverage), shall be maintained by Noma until two (2) years following
the date of termination.
Provided that Mr. Brenner's employment has not been terminated following
the Change of Control Date, he will continue to receive the same base salary,
bonus, vacation pay, car allowance, Registered Retirement Savings Plan
contributions and benefits that he was receiving prior to the Change of Control
Date.
Pursuant to the Change of Control Agreement entered into between Noma and
Stephen Ferguson, Vice-President, Corporate Development, on a Change of Control
Date Mr. Ferguson will receive a lump sum payment of U.S. $100,000 and all of
the stock options granted to Mr. Ferguson shall be deemed to have fully vested
and shall be fully exercisable. Furthermore, Mr. Ferguson's balance under the
EVA Bank Plan (which at the date hereof is $42,318) will become due and payable
and will be paid to him.
In the event that Noma terminates Mr. Ferguson's employment other than for
Cause (which is defined in his Change of Control Agreement as: (i) breach of
fiduciary duties; (ii) competing with Noma or aiding a competitor of Noma to the
detriment of Noma or the shareholders of Noma; or (iii) incompetence or gross
negligence in the performance of his duties) at any time between the Change of
Control Date and December 31, 2000, or in the event that Mr. Ferguson terminates
his employment with Noma because of a Good Reason (which is defined in his
Change of Control Agreement as: (i) the assignment to him of any duties
materially inconsistent with his positions, duties and responsibilities; (ii) a
reduction in his salary; (iii) the failure by Noma to continue in effect any
incentive or compensation plan, or any pension, life insurance, health and
accident or disability plan in which he is participating; (iv) a request by Noma
for him to relocate to a location outside of a 40 mile radius of Brentwood,
Tennessee; or (v) the failure of Noma within 60 days following the Change of
Control Date to enter into a written
10
<PAGE> 14
employment agreement with Mr. Ferguson which provides him with terms and
conditions of employment which are no less favourable than those he currently
enjoys), Mr. Ferguson will receive the following additional benefits:
(a) a lump sum equal to the aggregate of: (i) an amount equal to twelve
(12) months of Mr. Ferguson's annual base salary at the time of the
termination of his employment; (ii) an amount equal to the maximum
annual bonus payable to Mr. Ferguson, which maximum bonus is
one-hundred percent (100%) of his annual base salary; (iii) an amount
equal to twelve (12) times the monthly car allowance payment paid to
Mr. Ferguson immediately prior to the date of the termination of his
employment; and (iv) an amount equal to one-hundred percent (100%) of
the maximum permitted contribution to be made to Mr. Ferguson's 401(K)
Plan for the year in which the termination occurs, such amount not to
exceed the contribution for the year ended December 31, 1997; and
(b) all existing benefits coverage in favour of Mr. Ferguson, including
life, medical and dental (but not including long-term disability
coverage), shall be maintained by Noma until twelve (12) months
following the date of termination.
Mr. Ferguson is also entitled to certain relocation expenses in the event
he relocates his home following the Change of Control Date.
Provided that Mr. Ferguson's employment has not been terminated following
the Change of Control Date, he will continue to receive the same base salary,
bonus, vacation pay, car allowance, 401(K) Plan contributions and benefits that
he was receiving prior to the Change of Control Date.
MATERIAL CHANGES IN THE AFFAIRS OF NOMA
Except as otherwise described or referred to in this Directors' Circular,
no other information is known to the directors or senior officers of Noma that
indicates any material change in the affairs or prospects of Noma.
OTHER INFORMATION
DLJ will be paid a fee for its services as financial advisor to the
Company, including fees that are contingent on a change of control or certain
other events. DLJ will also be paid a fee for preparing the fairness opinion.
Mr. Lastman, a director of the Company, is a partner and the Co-Chairman of
Goodman Phillips & Vineberg, Toronto, which acts for, and is paid legal fees by,
the Company.
Except as disclosed in this Directors' Circular, there is no information
that is known to the directors and senior officers of Noma that would reasonably
be expected to affect the decision of the holders of Class A Shares or Class B
Shares (or securities convertible into Class A Shares or Class B Shares) to
accept or reject the Offer.
STATUTORY RIGHTS
Securities legislation in certain of the provinces and territories of
Canada provides holders of Class A Shares and Class B Shares with, in addition
to any other rights they may have at law, rights of rescission or to damages, or
both, if there is a misrepresentation in a circular or a notice that is required
to be delivered to the holders of Class A Shares and Class B Shares. However,
such rights must be exercised within prescribed time limits. Holders of Class A
Shares and Class B Shares should refer to the applicable provisions of the
securities legislation of their province or territory for particulars of those
rights or consult with a lawyer.
APPROVAL OF THE DIRECTORS' CIRCULAR AND NOTICE OF CHANGE
The contents of this Directors' Circular have been approved by the
directors of Noma and the delivery of this Directors' Circular has been
authorized by the directors of Noma.
11
<PAGE> 15
CONSENTS
To: The Board of Directors of Noma Industries Limited
We hereby consent to the reference to the opinion of our firm under the
heading "Recommendation and Reasons for Recommendation" and to the inclusion of
the text of our opinion dated February 26, 1999 in the Directors' Circular dated
the date hereof of Noma Industries Limited.
New York, New York
(Signed)
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
March 10, 1999
12
<PAGE> 16
CERTIFICATE
DATED: March 10, 1999
The foregoing contains no untrue statement of a material fact and does not
omit to state a material fact that is required to be stated or that is necessary
to make a statement not misleading in light of the circumstances in which it was
made. The foregoing does not contain any misrepresentation likely to affect the
value or the market price of the securities subject to the Offer within the
meaning of the Securities Act (Quebec).
On behalf of the Board of Directors
<TABLE>
<S> <C>
(Signed) H. THOMAS BECK (Signed) T. IAIN RONALD
Director Director
</TABLE>
13
<PAGE> 17
SCHEDULE "A"
OPINION OF DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
[LOGO]
February 26, 1999
Noma Industries Limited
4100 Yonge Street
Toronto, Ontario M2P 2B5
Canada
Attention: Independent Committee of the Board of Directors
Dear Sirs:
You have requested our opinion as to the fairness from a financial point of
view to the shareholders of Noma Industries Limited (the "Company") of the
consideration to be received by such shareholders pursuant to the terms of the
Acquisition Agreement, dated February 26, 1999 (the "Agreement"), by and among
The General Chemical Group Inc. ("General Chemical"), 1341776 Ontario Inc., a
wholly-owned subsidiary of General Chemical, and the Company pursuant to which
General Chemical and 1341776 Ontario Inc. will commence a circular bid (the
"Take-Over Bid") made to all holders of the Company's outstanding Class A and B
common shares (collectively, the "Company Common Shares") to purchase (the
"Acquisition") such shares at a price of C$9.25 per Company Common Share or such
higher price as may be paid in the Take-Over Bid (the "Offer Price"). The
Take-Over Bid may be followed by an amalgamation, statutory arrangement or other
transaction (the "Subsequent Acquisition Transaction") for the purposes of
enabling General Chemical to acquire all of the Company Common Shares not
deposited pursuant to the Take-Over Bid.
In arriving at our opinion, we have reviewed the draft dated February 25,
1999 of the Agreement and the schedules thereto and the draft form of Lock-Up
Undertaking dated February 25, 1999. We have also reviewed financial and other
information that was publicly available or furnished to us by the Company
including information provided during discussions with management. Included in
the information provided during discussions with management was certain
financial projections of the Company for the period beginning December 31, 1999
and ending December 31, 2003 prepared by the management of the Company. In
addition, we have compared certain financial and securities data of the Company
with financial and securities data of various other companies whose securities
are traded in public markets, reviewed the historical stock prices and trading
volumes of Company Common Shares, reviewed prices and premiums paid in certain
other business combinations and conducted such other financial studies, analyses
and investigations as we deemed appropriate for purposes of this opinion.
In rendering our opinion, we have relied upon and assumed the accuracy and
completeness of all of the financial and other information that was available to
us from public sources, that was provided to us by the Company and its
representatives, or that was otherwise reviewed by us. With respect to the
financial projections supplied to us, we have assumed that they have been
reasonably prepared on the basis reflecting the best currently available
estimates and judgments of the management of the Company as to the future
operating and financial performance of the Company. We have not assumed any
responsibility for making an independent evaluation of any assets or liabilities
or for making any independent verification of any of the information reviewed by
us.
Our opinion is necessarily based on economic, market, financial and other
conditions as they exist, and on the information made available to us, as of the
date of this letter. It should be understood that although subsequent
developments may affect this opinion, we do not have any obligation to update,
revise or reaffirm this opinion. Our opinion does not address the relative
merits of the Acquisition, the Subsequent Acquisition Transaction or any other
business strategies being considered by the board, nor does it address the
Board's decision as to how to vote on the proposed Acquisition or the Subsequent
Acquisition Transaction. Our opinion does not constitute a recommendation to any
shareholders as to whether such shareholder should tender such shareholder's
Company Common Shares in the Take-Over Bid.
A-1
<PAGE> 18
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), as part of its
investment banking services, is regularly engaged in the valuation of businesses
and securities in connection with mergers, acquisitions, underwritings, sales
and distributions of listed and unlisted securities, private placements and
valuations for corporate and other purposes. DLJ has performed investment
banking and other services for General Chemical in the past and has been
compensated for such services.
Based upon the foregoing and such other factors as we deem relevant, we are
of the opinion that the Offer Price to be received by holders of Company Common
Shares pursuant to the Agreement is fair to such shareholders from a financial
point of view.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: (signed)
Benoit Jamar
Managing Director
A-2
<PAGE> 19
ANY QUESTIONS OR REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO:
NOMA INDUSTRIES LIMITED
4100 Yonge Street
Suite 402
Toronto, Ontario
M2P 2B5
Contact: Catherine A. Beck
Telephone: (416) 226-7279
Telecopier: (416) 222-6467
or
Douglas G. Shields
Telephone: (416) 226-7277
Telecopier: (416) 222-6467
DONALDSON, LUFKIN & JENRETTE
277 Park Avenue
New York, New York
10172
Contact: Benoit Jamar
Telephone: (212) 892-3606
Telecopier: (212) 892-7973
or
Robert Aiello
Telephone: (212) 892-2809
Telecopier: (212) 892-7272
or
David Platt
Telephone: (212) 892-7006
Telecopier: (212) 892-4555
THIS TENDER OFFER IS MADE FOR THE SECURITIES OF A CANADIAN ISSUER AND WHILE
THE OFFER IS SUBJECT TO DISCLOSURE REQUIREMENTS OF CANADA, INVESTORS SHOULD BE
AWARE THAT THESE REQUIREMENTS ARE DIFFERENT FROM THOSE OF THE UNITED STATES.
THE ENFORCEMENT BY INVESTORS OF CIVIL LIABILITIES UNDER THE FEDERAL
SECURITIES LAWS MAY BE AFFECTED ADVERSELY BY THE FACT THAT THE ISSUER IS LOCATED
IN CANADA, AND THAT SOME OR ALL OF ITS OFFICERS AND DIRECTORS ARE RESIDENTS OF
CANADA.
<PAGE> 1
Please carefully read the transmittal instructions set out below before
completing this Letter of Transmittal. The Dealer Manager or the Depositary (see
below for addresses and telephone numbers) or your broker or other financial
advisor will assist you in completing this Letter of Transmittal.
LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATES FOR
CLASS A NON-VOTING SHARES OR CLASS B SHARES
OF
NOMA INDUSTRIES LIMITED
TO BE DEPOSITED PURSUANT TO THE OFFER DATED MARCH 10, 1999
OF
NOMA ACQUISITION CORP.
This Letter of Transmittal, properly completed and duly executed, or a
manually executed facsimile hereof, together with all other required documents,
must accompany certificates representing Class A Non-Voting Shares or Class B
Shares (collectively, the "Noma Shares") of Noma Industries Limited ("Noma")
deposited pursuant to the offer to purchase Noma Shares (the "Offer") set out in
the Offer to Purchase and accompanying Circular of Noma Acquisition Corp. (the
"Offeror") dated March 10, 1999. THE OFFER WILL BE OPEN FOR ACCEPTANCE UNTIL
5:00 P.M. (TORONTO TIME) ON MARCH 31, 1999 (THE "EXPIRY TIME") UNLESS THE OFFER
IS EXTENDED OR WITHDRAWN. The terms, conditions and definitions used in the
Offer to Purchase and Circular are incorporated by reference into this Letter of
Transmittal.
Shareholders whose certificates are not immediately available or who cannot
deliver their certificates and all other required documents to the Depositary at
or prior to the Expiry Time may deposit their Noma Shares according to the
procedure for guaranteed delivery set forth under Section 2 of the Offer to
Purchase, "Manner and Time of Acceptance -- Procedure for Guaranteed Delivery".
TO: NOMA ACQUISITION CORP.
AND TO: MONTREAL TRUST COMPANY OF CANADA, DEPOSITARY
The undersigned delivers to you the enclosed certificates for Noma Shares,
details of which are as follows:
(Please print; if insufficient space, attach a list in the form below.)
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Class and Number of
Certificate Number Name in which Registered Noma Shares Deposited*
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Unless otherwise indicated the Depositary will assume that all Noma Shares
evidenced by any certificates submitted to the Depositary are being deposited
under the Offer. See Instruction 6.
<PAGE> 2
The undersigned:
(a) acknowledges receipt of the Offer to Purchase and accompanying Circular;
(b) delivers to you the enclosed certificates representing Noma Shares and,
subject only to the provisions of the Offer regarding withdrawal,
irrevocably accepts the Offer for and in respect of the Noma Shares
represented by such certificates (the "Deposited Shares") and, on and
subject to the terms and conditions of the Offer, deposits and sells,
assigns and transfers to the Offeror all right, title and interest in and
to the Deposited Shares, including any and all dividends, distributions,
payments, securities, rights, assets or other interests declared, paid,
issued, distributed, made or transferred on or in respect of the Deposited
Shares on or after March 10, 1999 (collectively, the "Other Interests");
(c) represents and warrants that: (i) the undersigned has full power and
authority to deposit, sell, assign and transfer the Deposited Shares and
any Other Interests and has not sold, assigned or transferred or agreed to
sell, assign or transfer the Deposited Shares or any Other Interests to any
other person; (ii) when the Deposited Shares and any Other Interests are
taken up and paid for by the Offeror, the Offeror will acquire good title
thereto, free and clear of all liens, restrictions, charges, encumbrances,
claims and rights of third parties whatsoever; (iii) the undersigned or the
person on whose behalf the Deposited Shares and any Other Interests are
being deposited has good title to and is the beneficial owner of such
Deposited Shares and any Other Interests within the meaning of applicable
securities laws; and (iv) the deposit of the Deposited Shares and any Other
Interests complies with applicable securities laws;
(d) irrevocably constitutes and appoints the Depositary and any officer of the
Offeror, and each of them, and any other person designated by the Offeror
in writing, as the true and lawful agent, attorney and attorney-in-fact and
proxyholder of the undersigned with respect to the Deposited Shares taken
up and paid for under the Offer (the "Purchased Shares") and with respect
to any Other Interests, effective on and after the date that the Offeror
takes up and pays for the Purchased Shares (the "Effective Date"), with
full power of substitution, in the name of and on behalf of the undersigned
(such power of attorney being deemed to be an irrevocable power coupled
with an interest):
(i) to register or record, transfer and enter the transfer of Purchased
Shares and any Other Interests on the appropriate register of holders
maintained by Noma; and
(ii) to exercise any and all rights of the undersigned, including, without
limitation, to vote, execute and deliver any and all instruments of
proxy, authorizations or consents in respect of all or any of the
Purchased Shares and Other Interests, revoke any such instrument,
authorization or consent given prior to, on, or after the Effective
Date, designate in any such instruments of proxy any person or persons
as the proxyholder or the proxy nominee or nominees of the undersigned
in respect of such Purchased Shares and such Other Interests for all
purposes including, without limitation, in connection with any meeting
(whether annual, special or otherwise or any adjournment or
adjournments thereof) of holders of securities of Noma, and execute,
endorse and negotiate, for and in the name of and on behalf of the
undersigned with respect to Purchased Shares and Other Interests, any
and all cheques or other instruments respecting any distribution
payable to or to the order of the undersigned;
(e) as of the Effective Date, revokes any and all other authority, whether as
agent, attorney-in-fact, attorney, proxy or otherwise, previously conferred
or agreed to be conferred by the undersigned at any time with respect to
the Purchased Shares or Other Interests and agrees no subsequent authority,
whether as agent, attorney-in-fact, attorney, proxy or otherwise, will be
granted with respect to the Purchased Shares or Other Interests by or on
behalf of the undersigned;
(f) agrees, effective on and after the Effective Date, not to vote any of the
Purchased Shares or Other Interests at any meeting (whether annual, special
or otherwise or any adjournment or adjournments thereof) of holders of
securities of Noma and not to exercise any or all of the other rights or
privileges attached to the Purchased Shares or Other Interests;
(g) agrees further, effective on and after the Effective Date, to execute and
deliver to the Offeror, provided it is not contrary to any applicable law,
at any time and from time to time, as and when requested by, and at the
expense of, the Offeror, any and all instruments of proxy, authorizations
or consents, in a form and on terms satisfactory to the Offeror, in respect
of the Purchased Shares and Other Interests;
<PAGE> 3
(h) agrees further, effective on and after the Effective Date, to designate in
any such instruments of proxy the person or persons specified by the
Offeror as the proxyholder or the proxy nominee or nominees of the
undersigned in respect of the Purchased Shares and Other Interests;
(i) directs the Offeror and the Depositary to: (i) issue or cause to be issued a
cheque or cheques in the full amount to which the undersigned is entitled
in respect of the Purchased Shares pursuant to the Offer, in the name
indicated below, and to send such cheque or cheques, as the case may be, to
the address, or hold the same for pickup, as indicated below; and (ii)
return any certificates for Noma Shares not purchased to the address
indicated below (and if no name, address or delivery instructions are
indicated, to the undersigned at the address of the undersigned as it
appears on the applicable securities register of Noma);
(j) acknowledges and agrees that any cheques or amounts owing that have not been
claimed by the undersigned and are still held by the Depositary as of a
date that is six months after the date that such cheques or amounts owing
were sent or made available to the undersigned will be returned to the
Offeror, and thereafter, any claims by the undersigned for such cheques or
amounts owing shall be made against the Offeror;
(k) agrees further that all questions as to the validity, form, eligibility
(including timely receipt) and acceptance of any Purchased Shares or Other
Interests will be determined by the Offeror in its sole discretion and that
such determination shall be final and binding;
(l) waives any right to receive notice of acceptance of the Deposited Shares for
purchase under the Offer; and
(m) covenants and agrees to execute, upon request, any additional documents,
transfers and other assurances as may be necessary or desirable to complete
the sale, assignment and transfer of the Purchased Shares and Other
Interests to the Offeror.
To the extent permitted by law, each authority conferred or agreed to be
conferred by the undersigned in this Letter of Transmittal shall survive the
death or incapacity, bankruptcy or insolvency of the undersigned and all
obligations of the undersigned in this Letter of Transmittal shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
BY REASON OF THE USE BY THE UNDERSIGNED OF THE ENGLISH LANGUAGE FORM OF
LETTER OF TRANSMITTAL, THE UNDERSIGNED AND THE OFFEROR AND THE DEPOSITARY SHALL
BE DEEMED TO HAVE REQUIRED THAT ANY CONTRACT EVIDENCED BY THE OFFER AS ACCEPTED
THROUGH THIS LETTER OF TRANSMITTAL, AS WELL AS ALL DOCUMENTS RELATED THERETO, BE
DRAWN EXCLUSIVELY IN THE ENGLISH LANGUAGE. EN RAISON DE L'USAGE D'UNE LETTRE
D'ENVOI EN LANGUE ANGLAISE, LE SOUSSIGNE, LE POLLICITANT ET LE DEPOSITAIRE SONT
PRESUMES AVOIR EXIGE QUE TOUT CONTRAT ATTESTE PAR L'OFFRE ET SON ACCEPTATION PAR
CETTE LETTRE D'ENVOI, DE MEME QUE TOUS LES DOCUMENTS QUI S'Y RAPPORTENT, SOIENT
REDIGES EXCLUSIVEMENT EN LANGUE ANGLAISE.
<PAGE> 4
<TABLE>
<S> <C>
Signature guaranteed by Dated: , 1999.
(if required under Instruction 4):
- --------------------------------------------------------- ---------------------------------------------------------
Authorized Signature of Guarantor Signature of Shareholder
or Authorized Representative
(see Instruction 3 and 5)
- --------------------------------------------------------- ---------------------------------------------------------
Name of Guarantor (please print or type) Name of Shareholder (please print or type)
- --------------------------------------------------------- ---------------------------------------------------------
Address of Guarantor (please print or type) Name of Authorized Representative,
if applicable (please print or type)
- --------------------------------------------------------- ---------------------------------------------------------
Telephone Number of Guarantor Telephone Number of Shareholder
</TABLE>
<PAGE> 5
BLOCK A
PAYMENT INSTRUCTIONS
ISSUE CHEQUE(S) IN THE NAME OF
(please print or type):
---------------------------------------------------
(Name)
---------------------------------------------------
(Street Address and Number)
---------------------------------------------------
(City and Province or State)
---------------------------------------------------
(Country and Postal or Zip Code)
---------------------------------------------------
(Social Insurance No.)
[ ] The name above is the name registered on the certificates deposited
herewith.
BLOCK B
DELIVERY INSTRUCTIONS
SEND CHEQUE(S) (UNLESS BOX C IS CHECKED) TO (please print or type):
---------------------------------------------------
(Name)
---------------------------------------------------
(Street Address and Number)
---------------------------------------------------
(City and Province or State)
---------------------------------------------------
(Country and Postal or Zip Code)
[ ] The address above is the address of the Shareholder as it appears on the
security register of Noma.
BLOCK C
PICK-UP FROM DEPOSITARY
[ ] HOLD CHEQUES(S) FOR PICK UP AGAINST COUNTER RECEIPT AT THE FOLLOWING OFFICE
OF THE DEPOSITARY:
BLOCK D
(U.S. RESIDENTS/CITIZENS ONLY)
U.S. RESIDENTS/CITIZENS MUST PROVIDE THEIR TAXPAYER IDENTIFICATION NUMBER:
<PAGE> 6
BLOCK E
RETURN OF NOMA SHARES
(see Instruction 6)
RETURN CERTIFICATES FOR NOMA SHARES (i) IN RESPECT OF A PARTIAL TENDER, OR (ii)
IN RESPECT OF NOMA SHARES NOT TAKEN UP AND PAID FOR, TO:
[ ] Same address as Block A or to (please print or type):
(Name)
(Street Address and Number)
(City and Province or State)
(Country and Postal or Zip Code)
BLOCK F
DEPOSITS PURSUANT TO NOTICE OF GUARANTEED DELIVERY
(see Instruction 2)
[ ] CHECK HERE IF NOMA SHARES ARE BEING DEPOSITED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AT ITS PRINCIPAL
OFFICE IN TORONTO AND COMPLETE THE FOLLOWING (please print or type):
Name of Registered Holder:
Date of Execution of Notice of Guaranteed Delivery:
Name of Eligible Institution which Guaranteed Delivery:
<PAGE> 7
BLOCK G
SUBSTITUTE FORM W-9
To be completed by United States Shareholders only
(see Instruction 8)
Under penalties of perjury, I certify that:
1. The social security or other taxpayer information number stated in Block D
above is my current taxpayer identification number (or I am waiting for a
number to be issued to me), and that
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 United States Internal
Revenue Service that I am subject to backup withholding as a result of a
failure to report all interest or dividends; or (c) the IRS has notified me
that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS. You must cross out item 2 above if you have been
notified by the IRS that you are currently subject to backup withholding because
of underreporting interest or dividends on your tax return.
<TABLE>
<S> <C>
- -------------------------------------------------------- ---------------------------------------------
Signature of Shareholder Date
</TABLE>
INVESTMENT DEALER OR BROKER SOLICITING ACCEPTANCE OF THE OFFER
(see Instruction 7; please print or type)
<TABLE>
<S> <C>
- ---------------------------------------------- ----------------------------------------------
(Name of Firm) (Telephone Number) (Fax
Number)
- ---------------------------------------------- ----------------------------------------------
(Name of Individual) (Address)
</TABLE>
[ ] CHECK HERE IF REGISTERED HOLDER REPRESENTS MORE THAN ONE BENEFICIAL HOLDER
AND ATTACH A LIST OF BENEFICIAL HOLDERS AND THE SHARES HELD BY EACH.
<PAGE> 8
INSTRUCTIONS
1. USE OF LETTER OF TRANSMITTAL
(a) This Letter of Transmittal (or a manually signed facsimile thereof)
properly completed and signed, together with accompanying certificates
representing the Deposited Shares and all other documents required by
the terms of the Offer and this Letter of Transmittal must be received
by the Depositary at any of the offices of the Depositary specified on
the back page of this document at or prior to the Expiry Time or
unless the procedures for guaranteed delivery set out in Instruction 2
below are employed.
(b) The method used to deliver this Letter of Transmittal and any
accompanying certificates representing Noma Shares and all other
required documents is at the option and risk of the person depositing
same, and delivery will be deemed effective only when such documents
are actually received. The Offeror recommends that the necessary
documentation be hand delivered to the Depositary at any of their
offices specified on the back page of this document, and a receipt
obtained, otherwise the use of registered mail with return receipt
requested, properly insured, is recommended. SHAREHOLDERS WHOSE NOMA
SHARES ARE REGISTERED IN THE NAME OF A BROKER, INVESTMENT DEALER,
BANK, TRUST COMPANY OR OTHER NOMINEE MUST CONTACT THEIR NOMINEE HOLDER
TO ARRANGE FOR THE DEPOSIT OF THOSE NOMA SHARES.
2. PROCEDURES FOR GUARANTEED DELIVERY
If a Shareholder wishes to deposit Noma Shares pursuant to the Offer and
(i) the certificate(s) representing such Noma Shares are not immediately
available, or (ii) the Shareholder cannot deliver the certificate(s)
representing such Noma Shares and all other required documents to the Depositary
at or prior to the Expiry Time, such Noma Shares may nevertheless be deposited
pursuant to the Offer provided that all of the following conditions are met:
(a) such a deposit is made by or through an Eligible Institution (as
defined below);
(b) a properly completed and duly executed Notice of Guaranteed Delivery,
or a manually signed facsimile thereof, is received by the Depositary
at its principal office in Toronto (by hand, courier, facsimile
transmission or mail) together with a guarantee by an Eligible
Institution in the form set forth in such Notice of Guaranteed
Delivery, not later than the Expiry Time; and
(c) the certificate(s) representing the Noma Shares, in proper form for
transfer, together with a properly completed and duly executed Letter
of Transmittal, or a manually signed facsimile thereof, relating to
the Noma Shares and all other documents required by this Letter of
Transmittal, are received by the Depositary at its principal office in
Toronto at or before 4:30 p.m. (Toronto time) on the third trading day
on The Toronto Stock Exchange after the Expiry Date.
An "Eligible Institution" means a Canadian chartered bank, a trust company
in Canada, a commercial bank or trust company having an office, branch, agency
or correspondent in the United States or a member firm of The Toronto Stock
Exchange, the Alberta Stock Exchange, the Montreal Exchange, the Vancouver Stock
Exchange, a national securities exchange in the United States or the National
Association of Securities Dealers, Inc. or a member of a Securities Transfer
Association Medallion (STAMP) Program.
3. SIGNATURES
This Letter of Transmittal must be completed and signed by the holder of
Noma Shares accepting the Offer or by such holder's duly authorized
representative (in accordance with Instruction 5 below).
(a) If this Letter of Transmittal is signed by the registered owner(s) of
the accompanying certificate(s), such signature(s) on this Letter of
Transmittal must correspond with the name(s) as registered or as
written on the face of such certificate(s) without any change
whatsoever, and the certificate(s) need not be endorsed. If such
transmitted certificate(s) are owned of record by two or more joint
owners, all such owners must sign the Letter of Transmittal.
(b) If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the accompanying certificate(s):
(i) such deposited certificate(s) must be endorsed or be accompanied
by an appropriate share transfer power of attorney duly and
properly completed by the registered owner(s); and
<PAGE> 9
(ii) the signature(s) on such endorsement or power of attorney must
correspond exactly to the name(s) of the registered owner(s) as
registered or as appearing on the certificate(s) and must be
guaranteed as noted in Instruction 4 below.
4. GUARANTEE OF SIGNATURES
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Deposited Shares or if Deposited Shares not purchased
are to be returned to a person other than such registered owner(s) or sent to an
address other than the address of the registered owner(s) as shown on the
registers of Noma, such signature must be guaranteed by an Eligible Institution,
or in some other manner satisfactory to the Depositary, as applicable (except
that no guarantee is required if the signature is that of an Eligible
Institution).
5. FIDUCIARIES, REPRESENTATIVES AND AUTHORIZATIONS
Where this Letter of Transmittal is executed by a person on behalf of an
executor, administrator, trustee, guardian, corporation, partnership or
association or is executed by any other person acting in a representative
capacity, this Letter of Transmittal must be accompanied by satisfactory
evidence of such person's authority to act. Either of the Offeror or the
Depositary, at its discretion, may require additional evidence of authority or
additional documentation.
6. PARTIAL TENDERS AND RETURN OF SECURITIES NOT PURCHASED
If less than the total number of Noma Shares evidenced by any certificate
submitted is to be deposited, fill in the number of Noma Shares to be deposited
in the appropriate space on the front page of this Letter of Transmittal. In
such case, new certificate(s) for the number of Noma Shares not deposited will
be sent to the registered holder unless otherwise provided in Block E, "Return
of Noma Shares", on this Letter of Transmittal as soon as practicable after the
Expiry Time. The total number of Noma Shares evidenced by all certificates
delivered will be deemed to have been deposited unless otherwise indicated. If
certificates representing Noma Shares not taken up and paid for are to be
returned other than in the name of, and to the address, as shown in the
registers maintained by Noma, complete Block E, "Return of Noma Shares".
7. SOLICITATION
Identify the investment dealer or broker, if any, who solicited acceptance
of the Offer by completing the appropriate box on this Letter of Transmittal and
attach a list of beneficial holders if applicable.
8. SUBSTITUTE FORM W-9
United States Shareholders must complete Block G, "Substitute Form W-9", in
connection with United States "backup withholding".
9. MISCELLANEOUS
(a) If the space on this Letter of Transmittal is insufficient to list all
certificates for Deposited Shares, additional certificate numbers and
the number of Deposited Shares may be included on a separate signed
list attached to this Letter of Transmittal.
(b) If Deposited Shares are registered in different forms of the same name
(e.g. "John Doe" and "J. Doe"), a separate Letter of Transmittal
should be signed for each different registration.
(c) Additional copies of the Offer to Purchase and Circular, the Letter of
Transmittal and the Notice of Guaranteed Delivery may be obtained on
request and without charge from the Dealer Manager or the Depositary
at their respective offices at the addresses listed on the back page
of this document.
10. LOST CERTIFICATES
If a share certificate has been lost or destroyed, this Letter of
Transmittal should be completed as fully as possible and forwarded, together
with a letter describing the loss, to the Depositary. The Depositary will assist
in making arrangements for the replacement of such share certificates upon
payment to the Depositary of such reasonable fees as it may require in
connection therewith.
<PAGE> 10
THE DEPOSITARY FOR THE OFFER IS:
MONTREAL TRUST COMPANY OF CANADA
FOR DELIVERY BY MAIL, HAND, COURIER OR FACSIMILE TRANSMISSION
<TABLE>
<S> <C> <C>
VANCOUVER TORONTO MONTREAL
Reorganization Department Reorganization Department Reorganization Department
510 Burrard Street 151 Front Street West 1800 McGill College Avenue
2nd Floor 8th Floor 6th Floor
Vancouver, British Columbia Toronto, Ontario Montreal, Quebec
V6C 3B9 M5J 2N1 H3A 3K9
Tel: (604) 661-0222 Tel: (416) 981-9633 Tel: (514) 982-7555
Fax: (604) 661-9480 Fax: (416) 981-9600 Fax: (514) 982-7347
Toll-Free: 1-800-663-9097
</TABLE>
THE DEALER MANAGER FOR THE OFFER IS:
SCOTIAMCLEOD INC.
Suite 6400
Scotia Plaza
40 King Street West
Toronto, Ontario
M5W 2X6
Tel: (416) 862-3090
Fax: (416) 862-3010
ANY QUESTIONS AND REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO THE DEALER
MANAGER OR THE DEPOSITARY AT THEIR RESPECTIVE OFFICES OR TELEPHONE NUMBERS SET
OUT ABOVE.
<PAGE> 1
The Dealer Manager, the Depositary (see below for addresses and telephone
numbers) or your broker or other financial advisor will assist you in completing
this Notice of Guaranteed Delivery.
THIS IS NOT A LETTER OF TRANSMITTAL
NOTICE OF GUARANTEED DELIVERY
FOR
DEPOSIT OF CLASS A NON-VOTING SHARES OR CLASS B SHARES
OF
NOMA INDUSTRIES LIMITED
TO BE DEPOSITED PURSUANT TO THE OFFER DATED MARCH 10, 1999
OF
NOMA ACQUISITION CORP.
This Notice of Guaranteed Delivery, or a manually signed facsimile hereof,
may be used to accept the offer (the "Offer") to purchase Class A Non-Voting
Shares or Class B Shares of Noma Industries Limited (collectively, the "Noma
Shares") set out in the Offer to Purchase and accompanying Circular of Noma
Acquisition Corp. (the "Offeror") dated March 10, 1999 if: (i) the certificates
representing the Noma Shares are not immediately available; or (ii) the
Shareholder cannot deliver the certificates representing such Noma Shares and
all other required documents to the Depositary at or prior to 5:00 P.M. (TORONTO
TIME) ON MARCH 31, 1999 (THE "EXPIRY TIME") UNLESS THE OFFER IS EXTENDED OR
WITHDRAWN.
The terms, conditions and definitions used in the Offer to Purchase and
Circular are incorporated by reference in this Notice of Guaranteed Delivery.
In order to utilize the procedures contemplated by this Notice of
Guaranteed Delivery, the following conditions must be met:
(a) the deposit must be made by or through a Canadian chartered bank, a
trust company in Canada, a commercial bank or trust company having an
office, branch, agency or correspondent in the United States or a
member firm of The Toronto Stock Exchange, the Alberta Stock Exchange,
the Montreal Exchange, the Vancouver Stock Exchange, a national
securities exchange in the United States or the National Association
of Securities Dealers, Inc. or a member of a Securities Transfer
Association Medallion (STAMP) Program (each an "Eligible
Institution");
(b) a properly completed and duly executed copy of this Notice of
Guaranteed Delivery, or a manually signed facsimile hereof, must be
received by the Depositary at its principal office in Toronto (by
mail, hand, courier or facsimile transmission), not later than the
Expiry Time; and
(c) the certificate(s) representing deposited Noma Shares, in proper form
for transfer, together with a properly completed and duly executed
Letter of Transmittal, or a manually signed facsimile thereof,
relating to such Noma Shares and all other documents required by the
Letter of Transmittal must be received by the Depositary at its
principal office in Toronto at or before 4:30 p.m. (Toronto time) on
the third trading day on The Toronto Stock Exchange after the Expiry
Date.
This Notice of Guaranteed Delivery must be delivered mail, hand, courier or
facsimile transmission to the Depositary during normal business hours not later
than the Expiry Time and must include a guarantee by an Eligible Institution in
the form set out herein.
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR
TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA A FACSIMILE NUMBER, OTHER
THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY.
<PAGE> 2
This Notice of Guaranteed Delivery 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, such signature must appear in the
applicable space in the Letter of Transmittal.
TO: NOMA ACQUISITION CORP.
AND TO: MONTREAL TRUST COMPANY OF CANADA, DEPOSITARY
The undersigned hereby deposits with the Offeror, on and subject to the
terms and conditions of the Offer and the Letter of Transmittal, receipt of
which is hereby acknowledged, the Noma Shares listed below, pursuant to the
guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase,
"Manner and Time of Acceptance -- Procedure for Guaranteed Delivery".
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Class and Number of Certificate No. (if available) Name(s) and address(es) of
Noma Shares Shareholder(s)
(please print)
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
Signature(s) of Shareholder(s)
Name(s) of Shareholder(s) (please print)
Address:
Postal or Zip Code:
Area Code and Daytime Telephone Number:
Dated: , 1999
</TABLE>
<PAGE> 3
GUARANTEE
The undersigned, an Eligible Institution, hereby guarantees delivery to the
office of the Depositary set forth on the back page of this document of the
certificates representing Noma Shares tendered hereby, in proper form for
transfer, with delivery of a properly completed and duly executed Letter of
Transmittal, or a manually signed facsimile thereof, and all other documents
required by the Letter of Transmittal, all at or before 4:30 p.m. (local time)
on the third trading day on The Toronto Stock Exchange after the Expiry Date.
<TABLE>
<S> <C>
Dated: , 1999
Name of Eligible Institution:
Address:
Area Code and Telephone Number:
Authorized Signature:
Name (please print):
Title:
</TABLE>
<PAGE> 4
THE DEPOSITARY FOR THE OFFER IS:
MONTREAL TRUST COMPANY OF CANADA
FOR DELIVERY BY MAIL, HAND, COURIER OR FACSIMILE TRANSMISSION
TORONTO
Reorganization Department
151 Front Street West
8th Floor
Toronto, Ontario
M5J 2N1
Fax: (416) 981-9600
THE DEALER MANAGER FOR THE OFFER IS:
SCOTIAMCLEOD INC.
Suite 6400
Scotia Plaza
40 King Street West
Toronto, Ontario
M5W 2X6
Tel: (416) 862-3090
Fax: (416) 862-3010
ANY QUESTIONS AND REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO THE DEALER
MANAGER OR THE DEPOSITARY AT THEIR RESPECTIVE OFFICES OR TELEPHONE NUMBERS SET
OUT ABOVE.
