<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ALLIED DIGITAL TECHNOLOGIES CORP.
----------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.1 PER SHARE
--------------------------------------
(Title of Class of Securities)
01912P109
--------------
(CUSIP Number)
Frederick R. Cummings, Jr. Esq.
Warshaw Burstein Cohen Schlesinger & Kuh, LLP
555 Fifth Avenue
New York, New York 10017
(212) 984-7700
------------------------------------------------------
(Name, Address, Telephone Number of Person Authorized
to Receive Notices and Communications)
May 5, 1998
-----------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
this acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ].
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
George Fishman
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
894,022
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,542 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
894,022
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kyle Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,600
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,000
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Nicole Olesen, As Custodian for Austin Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
1,000
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
1,000
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Nicole Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
3.250
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
3,250
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Christopher Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
3,250
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
3,250
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Erik Olesen, as Custodian for Ryan Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
1,000
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
1,000
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Debra Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
3,250
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
3,250
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Erik Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
3,250
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
3,250
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donald L. Olesen
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
872,400
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
872,400
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William L. and Patricia M. Smith Foundation
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
1,000,000
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
1,000,000
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Werner H. Jean, as Trustee of the William H. Smith and Patricia M. Smith
Irrevocable Trust dated April 2, 1998 for Brittany Frances Davies
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
93,360
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
93,360
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Werner H. Jean, Trustee of the William H. Smith and Patricia M. Smith
Irrevocable Trust dated April 2, 1998 for Melena Renee Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
93,360
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
93,360
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Werner H. Jean, Trustee of the William H. Smith and Patricia M. Smith
Irrevocable Trust dated April 2, 1998 for Kaitlyn Hunt Kubitskey
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
93,360
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
93,360
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Werner H. Jean, Trustee of the William H. Smith and Patricia M. Smith
Irrevocable Trust Dated April 2, 1998 for Emily Morell Kubitskey
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
93,360
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
93,360
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wendy Kubitskey
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
566,477
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
566,477
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kendall A. Smith, as Custodian for Melena Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kathryn Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kendall A. Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
566,477
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
566,477
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Scott D. Smith, as Custodian for Brittany F. Davies
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
his statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Scott D. Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
566,477
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
566,477
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wendy Kubitskey, as Custodian for Kaitlyn Kubitskey
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wendy Kubitskey, as Custodian for Emily Kubitskey
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paul Kubitskey
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William L. Jacob, as Custodian for Veronika L. Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William H. Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
91,596
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
91,596
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William L. Jacob, as Custodian for Garth W. Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Barbara S. Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
91,596
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
91,596
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
R. Thomas Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Laura L. Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William L. Jacob
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
6,152
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
6,152
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patricia M. Smith Trust
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
1,044,161
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
1,044,161
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William H. Smith Trust
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
2,067,723
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
2,067,723
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patricia M. Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
- -----------------------------------
CUSIP No. 01912P109
- -----------------------------------
================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William H. Smith
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
This statement is being filed as a result of the execution by certain
shareholders of a voting agreement, and does not relate to the purchase of
securities by any of the Reporting Persons
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,233,641 (See Item 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
60.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE>
Item 1. Security and Issuer.
The class of equity securities to which this Statement relates
is the common stock, $0.01 par value per share (the "Common Stock"), of Allied
Digital Technologies Corp., a Delaware corporation ("ADT"). The principal
executive offices of ADT are located at 140 Fell Court, Hauppauge, New York
11788.
Item 2. Identity and Background.
William H. Smith is an individual, a citizen of the United States, a
trustee of the William H. Smith Trust, a director of the Issuer, and the
Co-Chairman of the Board of the Issuer. His business address is 7375 Woodward
Avenue, Detroit, Michigan 48202.
The William H. Smith Trust is a trust established by William H. Smith
pursuant to the laws of the State of Michigan. The William H. Smith Trust was
established by Mr. Smith for estate planning purposes. The William H. Smith
Trust has its principal business at, and its principal business address is,
7375 Woodward Avenue, Detroit, Michigan 48202. The trustee of the William H.
Smith Trust is William H. Smith.
Patricia M. Smith is an individual, a citizen of the United States, a
trustee of the Patricia M. Smith Trust, and the spouse of William H. Smith. Her
business address is 7375 Woodward Avenue, Detroit, Michigan 48202.
The Patricia M. Smith Trust is a trust established by Patricia M. Smith
pursuant to the laws of the State of Michigan. The Patricia M. Smith Trust was
established by Mrs. Smith for estate planning purposes. The Patricia M. Smith
Trust has its principal business at, and its principal business address is, 7375
Woodward Avenue, Detroit, Michigan 48202. The trustee of the Patricia M. Smith
Trust is Patricia M. Smith.
George N. Fishman is an individual, a citizen of the United States, a
director of the Issuer, and the Co-Chairman of the Board of the Issuer. His
business address if 140 Fell Court, Hauppauge, New York 11788.
Donald L. Olesen is an individual, a citizen of the United States, a
director of the Issuer, and the President of the National Marketing Division of
the Issuer. His business address is 1301 Avenue of the Americas, Hauppauge, New
York 10019.
Scott D. Smith is an individual, a citizen of the United States, and
President of Chicago Audio Works, Inc., a provider of audio recording services.
His business address is 676 N. LaSalle Drive, Chicago, Illinois 60610.
R. Thomas Jacob is an individual, a citizen of the United States, and a
mortgage banker (currently unemployed).
William L. Jacob is an individual, a citizen of the United States, and
is a Construction Manager for Danish Craftsmen, Inc., a construction company.
His business address is 2480 Gray Street, Edgewater, Colorado 80214.
William H. Jacob is an individual, a citizen of the United States, and
is retired.
Barbara S. Jacob is an individual, a citizen of the United States, and
is retired.
Laura L. Jacob is an individual, a citizen of the United States, and a
registered dental hygienist for Dr. Peter K. Spence. Her business address is
3601 South Clarkson, Englewood, Colorado 80110.
Paul H. Kubitskey is an individual, a citizen of the United States, and
a chemical researcher for Olin Corporation. His business address is 2450 Olin
Road, Brandenburg, Kentucky 40108.
Wendy A. Kubitskey is an individual, a citizen of the United States,
and a medical technologist for Jewish Hospital. Her business address is 217 E.
Chestnut, Louisville, Kentucky 40202.
Christopher L. Olesen is an individual, a citizen of the United States,
and a salesman for the Issuer. His business address is 1301 Avenue of the
Americas, New York, New York 10019.
<PAGE>
Nicole Olesen is an individual, a citizen of the United States, and a
housewife.
Erik L. Olesen is an individual, a citizen of the United States, and
the Director of Promotion for Elektra Records, a music and entertainment
company. His business address is 75 Rockefeller Plaza, New York, New York 10019.
Debra Olesen is an individual, a citizen of the United States, and a
housewife.
Kyle L. Olesen is an individual, a citizen of the United States, and a
salesman for the Issuer. His business address is 1301 Avenue of the Americas,
New York, New York 10019.
Kendall A. Smith is an individual, a citizen of the United States, and
a freelance designer. His business address is 10 Rockledge Pl., Mahopac, New
York 10541.
Kathryn Smith is an individual, a citizen of the United States, and a
housewife.
Werner H. Jean is an individual, a citizen of the United States, a
director of the Issuer, a consultant in operations management and the Trustee of
the William H. Smith and Patricia M. Smith irrevocable trust dated April 2, 1998
for Emily Morell Kubitskey, the William H. Smith and Patricia M. Smith
irrevocable trust dated April 2, 1998 for Kaitlyn Hunt Kubitskey, the William H.
Smith and Patricia M. Smith irrevocable trust dated April 2, 1998 for Melena
Renee Smith, and the William H. Smith and Patricia M. Smith irrevocable trust
dated April 2, 1998 for Brittany Frances Davies. Each of the foregoing trusts
was formed for estate planning purposes. Mr. Jean's business address is 16288
Barryknoll Way, Granger, Indiana 46530.
The William H. and Patricia M. Smith Foundation is a Michigan
non-profit corporation and a private foundation, formed by its President,
William H. Smith, for general charitable purposes. The Foundation's business
address is 7375 Woodward Avenue, Detroit, Michigan 48202.
Item 3. Source and Amount of Funds or Other Consideration.
This Statement is being filed as a result of the execution by the
Reporting Persons of the Stockholder Voting Agreements (as defined below), and
does not relate to the purchase of securities.
Item 4. Purpose of Transaction.
On May 5, 1998, ADT and AAC entered into the Agreement and Plan of
Merger (the "Merger Agreement," a copy of which is attached hereto and made a
part hereof as Exhibit A). The Merger Agreement provides, among other things,
for the merger of AAC with and into ADT (the "Merger"), with ADT as the
surviving corporation (the "Surviving Corporation"). Upon the issuance of
capital stock of AAC, John K. Mangini shall own 66 2/3% of the voting securities
of AAC and 399 Venture Partners, Inc. ("399") shall own 33 1/3% of the voting
securities of AAC.
Under the terms of the Merger Agreement, which is subject to majority
shareholder approval, each Share (or fraction thereof) issued and outstanding
immediately prior to the Effective Time (as defined below) (other than any
Shares to be canceled (as described below), any shares to remain outstanding (as
described below) and any Dissenting Shares (as defined in the Merger Agreement),
shall be canceled and shall be converted automatically into the right to receive
an amount equal to $5.00 in cash payable, without interest, to the holder of
such Share, upon surrender of the Certificate that formerly evidenced such
Share. 75,000 of the Shares held by and registered in the names of certain ADT
Stockholders immediately prior to the Effective Time who are members of
management of the Company shall not be canceled but shall remain outstanding and
become shares of Class A common stock, $.01 par value per share, of the
<PAGE>
Surviving Corporation ("Class A Common Stock"). In addition, all of (a) the
issued and outstanding shares of common stock, par value $.01 per share, of AAC,
(b) the issued and outstanding shares of preferred stock, par value $.01 per
share of AAC, and (c) 1,100,110 Shares of ADT Common Stock held by and
registered in the name of 399, shall be converted into 74,000 shares of Class A
common stock, 351,000 shares of Class B Common Stock, $.01 par value per share,
of the Surviving Corporation and 165,000 shares of Series A preferred stock, par
value $.01 per share, of the Surviving Corporation. The Merger will become
effective at such time as the certificate of merger is duly filed with the
Secretary of State of the State of Delaware or at such later time as is
specified in the certificate of merger (the "Effective Time"). From and after
the Effective Time, the Surviving Corporation will possess all the rights,
privileges, powers and franchises and be subject to all of the restrictions,
disabilities and duties of ADT and AAC, all as provided under Delaware Law. The
Merger is subject to customary conditions, including the approval and adoption
of the Merger Agreement by the affirmative vote of a majority of the
stockholders of ADT.
In connection with the Merger, each of the Reporting Persons entered
into a stockholder voting agreement (collectively, the "Shareholder Voting
Agreements") with AAC dated as of May 5, 1998 (copies of which are attached
hereto and made a part hereof as Exhibits B through D) representing in the
aggregate 8,233,641 Shares, which together with the Shares currently owned by
399 represent approximately 66.58% of the Shares issued and outstanding.
During the period (the "Agreement Period") beginning on May 5, 1998 and
ending on the Termination Date (as defined in the Merger Agreement), each of the
Reporting Persons has agreed not to directly or indirectly (i) except pursuant
to the terms of the Merger Agreement or the Stockholders Voting Agreement, offer
for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, enforce or permit the execution of the provisions of any redemption
agreement with ADT or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, or exercise any
discretionary powers to distribute, any or all of such Reporting Person's Shares
or any interest therein, including any trust income or principal, except in each
case to a permitted transferee (a "Permitted Transferee"), who is or agrees to
become bound by the Stockholder Voting Agreement; (ii) except as contemplated by
the Stockholder Voting Agreement, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of such Reporting Person contained in the
Stockholder Voting Agreement untrue or incorrect or have the effect of
preventing or disabling such Reporting Person from performing such Stockholder's
obligations under the Stockholder Voting Agreement.
Each Reporting Person has waived any rights of appraisal or rights to
dissent from the Merger that such Reporting Person may have. The Stockholders
have represented that no beneficiary who is a beneficial owner of Shares under
any trust has any right of appraisal or right to dissent from the Merger which
has not been so waived.
Each Reporting Person has agreed that, until the termination Date, such
Reporting Person shall vote (or cause to be voted) the Shares held of record or
beneficially by such Reporting Person (i) in favor of the Merger, the execution
and delivery by ADT of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger Agreement and
the Stockholder Voting Agreement and any actions required in furtherance hereof
and thereof; (ii) against any action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of ADT under the Merger Agreement or the Stockholder Voting Agreement; and (iii)
against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement or
<PAGE>
any such actions identified in writing by AAC in advance): (A) any extraordinary
corporate transaction, including, without limitation, a merger, consolidation or
other business combination involving ADT or its Subsidiaries; (B) a sale, lease
or transfer of a material amount of assets of ADT or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of ADT or its
Subsidiaries; (C) any change in the majority of the board of directors of ADT;
(D) any material change in the present capitalization of ADT or any amendment of
ADT's Certificate of Incorporation or By-Laws; (E) any other material change in
ADT's corporate structure or business; or (F) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement or the Stockholder Voting
Agreement.
Each Reporting Person has appointed AAC and any designee of AAC, each
of them individually, such Stockholder's irrevocable (until the termination
Date) proxy and attorney-in-fact (with full power of substitution) to vote such
Stockholder's Shares as described above. The proxy is irrevocable (until the
Termination Date) and coupled with an interest. Each Reporting Person has agreed
to take such further action and execute such other instruments as may be
necessary to effectuate the intent of the proxy and has revoked any proxy
previously granted by such Reporting Person with respect to such Stockholder's
Shares.
The Shareholder Voting Agreements will terminate upon the expiration
of the Agreement Period.
Subject to the terms and provisions of the Merger Agreement, in
connection with the Merger, each of Charles A. Mantione, John K. Mangini, John
J. Mangini, Emily M. Hill, Steven Granat, Edward Simek, David R. Conrad, Brian
Wilson and Donald L. Olesen (and various parties related to Donald L. Olesen)
(the "Rollover Stockholders") has entered into a Rollover Agreement with AAC
dated as of May 5, 1998 whereby each has agreed to elect to retain an aggregate
of 75,000 Shares of Surviving Corporation Common Stock upon conversion of, and
with respect to, 75,000 Shares owned by the Rollover Stockholder immediately
prior to the Effective Time (the "Rollover Shares") unless otherwise agreed with
AAC.
Unless the Shares held by any trust which are presently subject to the
terms of the Rollover Agreement are transferred to one or more Rollover
Stockholders (and remain subject in all respects to the terms of the Rollover
Agreement) or other Permitted Transferees who upon receipt of such Shares become
signatories to the Rollover Agreement, the Rollover Stockholders who are
trustees shall not take any action to terminate, close or liquidate any such
trust and shall take all steps necessary to maintain the existence thereof at
least until the Termination Date.
Each Rollover Stockholder has waived any rights of appraisal or rights
to dissent from the Merger that such Stockholder may have. The Rollover
Stockholders have represented that no beneficiary who is a beneficial owner of
Shares under any trust has any right of appraisal or right to dissent from the
Merger which has not been so waived.
Item 5. Interest in Securities of the Issuer
William H. Smith shares dispositive power with respect to the 10,000 shares
reported by him. Mr. Smith holds such shares jointly with his wife, Patricia M.
Smith. By virtue of the Shareholder Voting Agreements described under Item 4,
the Reporting Persons have agreed to vote in favor of the adoption and approval
of the Merger Agreement. Therefore, Mr. Smith, pursuant to Rule 13d-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), may be deemed
to be the beneficial owner of the 8,233,641 shares owned by all of the Reporting
Persons, which represent 60.4% of the outstanding shares of ADT. Other than the
10,000 shares held jointly with Mrs. Smith, Mr. Smith disclaims beneficial
ownership of the shares held by the Reporting Persons.
<PAGE>
Patricia M. Smith shares dispositive power with respect to the 10,000
shares reported by her. Mrs. Smith holds such shares jointly with her husband,
William H. Smith. By virtue of the Shareholder Voting Agreements described under
Item 4, the Reporting Persons have agreed to vote in favor of the adoption and
approval of the Merger Agreement. Therefore, Mrs. Smith, pursuant to Rule 13d-3
of the Exchange Act, may be deemed to be the beneficial owner of the 8,233,641
shares owned by all of the Reporting Persons, which represent 60.4% of the
outstanding shares of ADT. Other than the 10,000 shares held jointly with Mr.
Smith, Mrs. Smith disclaims beneficial ownership of the shares held by the
Reporting Persons.
The William H. Smith Trust has the sole power to dispose of the 2,067,723
shares held by it. By virtue of the Shareholder Voting Agreements described
under Item 4, the Reporting Persons have agreed to vote in favor of the adoption
and approval of the Merger Agreement. Therefore, The William H. Smith Trust,
pursuant to Rule 13d-3 of the Exchange Act, may be deemed to be the beneficial
owner of the 8,233,641 shares owned by all of the Reporting Persons, which
represent 60.4% of the outstanding shares of ADT. Other than the 2,067,723
shares held by it, The William H. Smith Trust disclaims beneficial ownership of
the shares held by the Reporting Persons.
The Patricia M. Smith Trust has the sole power to dispose of the 1,044,161
shares held by it. By virtue of the Shareholder Voting Agreements described
under Item 4, the Reporting Persons have agreed to vote in favor of the adoption
and approval of the Merger Agreement. Therefore, The Patricia M. Smith Trust,
pursuant to Rule 13d-3 of the Exchange Act, may be deemed to be the beneficial
owner of the 8,233,641 shares owned by all of the Reporting Persons, which
represent 60.4% of the outstanding shares of ADT. Other than the 1,044,161
shares held by it, The Patricia M. Smith Trust disclaims beneficial ownership of
the shares held by the Reporting Persons.
William L. Jacob has the sole power to dispose of the 6,152 shares held by
him. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Jacob, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 6,152 shares held by him, Mr. Jacob disclaims
beneficial ownership of the shares held by the Reporting Persons.
Laura L. Jacob has the sole power to dispose of the 6,152 shares held by
her. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Ms. Jacob, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 6,152 shares held by her, Ms. Jacob disclaims
beneficial ownership of the shares held by the Reporting Persons.
R. Thomas Jacob has the sole power to dispose of the 6,152 shares held by
him. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Jacob, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 6,152 shares held by him, Mr. Jacob disclaims
beneficial ownership of the shares held by the Reporting Persons.
Barbara S. Jacob has the sole power to dispose of the 91,596 shares held by
her. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to
<PAGE>
vote in favor of the adoption and approval of the Merger Agreement. Therefore,
Ms. Jacob, pursuant to Rule 13d-3 of the Exchange Act, may be deemed to be the
beneficial owner of the 8,233,641 shares owned by all of the Reporting Persons,
which represent 60.4% of the outstanding shares of ADT. Other than the 91,596
shares held by her, Ms. Jacob disclaims beneficial ownership of the shares held
by the Reporting Persons.
William L. Jacob, as Custodian for Garth W. Jacob, has the sole power to
dispose of the 6,152 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Jacob, as Custodian for Garth W. Jacob, pursuant to Rule 13d-3 of
the Exchange Act, may be deemed to be the beneficial owner of the 8,233,641
shares owned by all of the Reporting Persons, which represent 60.4% of the
outstanding shares of ADT. Other than the 6,152 shares held by him in such
capacity, Mr. Jacob, as Custodian for Garth W. Jacob, disclaims beneficial
ownership of the shares held by the Reporting Persons.
William H. Jacob has the sole power to dispose of the 91,596 shares held by
him. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Jacob, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 91,596 shares held by him, Mr. Jacob disclaims
beneficial ownership of the shares held by the Reporting Persons.
William L. Jacob, as Custodian for Veronika L. Jacob, has the sole power to
dispose of the 6,152 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Jacob, as Custodian for Veronika L. Jacob, pursuant to Rule 13d-3
of the Exchange Act, may be deemed to be the beneficial owner of the 8,233,641
shares owned by all of the Reporting Persons, which represent 60.4% of the
outstanding shares of ADT. Other than the 6,152 shares held by him in such
capacity, Mr. Jacob, as Custodian for Veronika L. Jacob, disclaims beneficial
ownership of the shares held by the Reporting Persons.
Paul Kubitskey has the sole power to dispose of the 6,152 shares held by
him. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Kubitskey, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 6,152 shares held by him, Mr. Kubitskey disclaims
beneficial ownership of the shares held by the Reporting Persons.
Wendy Kubitskey, as Custodian for Emily Kubitskey, has the sole power to
dispose of the 6,152 shares held by her in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Ms. Kubitskey, as Custodian for Emily Kubitskey, pursuant to Rule
13d-3 of the Exchange Act, may be deemed to be the beneficial owner of the
8,233,641 shares owned by all of the Reporting Persons, which represent 60.4% of
the outstanding shares of ADT. Other than the 6,152 shares held by her in such
capacity, Ms. Kubitskey, as Custodian for Emily Kubitskey, disclaims beneficial
ownership of the shares held by the Reporting Persons.
Wendy Kubitskey, as Custodian for Kaitlyn Kubitskey, has the sole power to
dispose of the 6,152 shares held by her in such capacity. By virtue of the
Shareholder Voting Agreements
<PAGE>
described under Item 4, the Reporting Persons have agreed to vote in favor of
the adoption and approval of the Merger Agreement. Therefore, Ms. Kubitskey, as
Custodian for Kaitlyn Kubitskey, pursuant to Rule 13d-3 of the Exchange Act, may
be deemed to be the beneficial owner of the 8,233,641 shares owned by all of the
Reporting Persons, which represent 60.4% of the outstanding shares of ADT. Other
than the 6,152 shares held by her in such capacity, Ms. Kubitskey, as Custodian
for Kaitlyn Kubitskey, disclaims beneficial ownership of the shares held by the
Reporting Persons.
Scott D. Smith has the sole power to dispose of the 566,477 shares held by
him. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Smith, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 566,477 shares held by him, Mr. Smith disclaims
beneficial ownership of the shares held by the Reporting Persons.
Scott D. Smith, as Custodian for Brittany F. Davies, has the sole power to
dispose of the 6,152 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Smith, as Custodian for Brittany F. Davies, pursuant to Rule
13d-3 of the Exchange Act, may be deemed to be the beneficial owner of the
8,233,641 shares owned by all of the Reporting Persons, which represent 60.4% of
the outstanding shares of ADT. Other than the 6,152 shares held by him in such
capacity, Mr. Smith, as Custodian for Brittany F. Davies, disclaims beneficial
ownership of the shares held by the Reporting Persons.
Kendall A. Smith has the sole power to dispose of the 566,477 shares held
by him. By virtue of the Shareholder Voting Agreements described under Item 4,
the Reporting Persons have agreed to vote in favor of the adoption and approval
of the Merger Agreement. Therefore, Mr. Smith, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 566,477 shares held by him, Mr. Smith disclaims
beneficial ownership of the shares held by the Reporting Persons.
Kathryn Smith has the sole power to dispose of the 6,152 shares held by
her. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Ms. Smith, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 6,152 shares held by her, Ms. Smith disclaims
beneficial ownership of the shares held by the Reporting Persons.
Kendall A. Smith, as Custodian for Melena Smith, has the sole power to
dispose of the 6,152 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Smith, as Custodian for Melena Smith, pursuant to Rule 13d-3 of
the Exchange Act, may be deemed to be the beneficial owner of the 8,233,641
shares owned by all of the Reporting Persons, which represent 60.4% of the
outstanding shares of ADT. Other than the 6,152 shares held by him in such
capacity, Mr. Smith, as Custodian for Melena Smith, disclaims beneficial
ownership of the shares held by the Reporting Persons.
Wendy Kubitskey has the sole power to dispose of the 566,477 shares held by
her. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Ms.
<PAGE>
Kubitskey, pursuant to Rule 13d-3 of the Exchange Act, may be deemed to be the
beneficial owner of the 8,233,641 shares owned by all of the Reporting Persons,
which represent 60.4% of the outstanding shares of ADT. Other than the 566,477
shares held by her, Ms. Kubitskey disclaims beneficial ownership of the shares
held by the Reporting Persons.
Werner H. Jean, Trustee of the William H. and Patricia M. Smith Irrevocable
Trust Dated April 2, 1998 for Emily Morell Kubitskey, has the sole power to
dispose of the 93,360 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Jean, in such capacity, pursuant to Rule 13d-3 of the Exchange
Act, may be deemed to be the beneficial owner of the 8,233,641 shares owned by
all of the Reporting Persons, which represent 60.4% of the outstanding shares of
ADT. Other than the 93,360 shares held by him in such capacity, Mr. Jean, in
such capacity, disclaims beneficial ownership of the shares held by the
Reporting Persons.
Werner H. Jean, Trustee of the William H. and Patricia M. Smith Irrevocable
Trust Dated April 2, 1998 for Kaitlyn Hunt Kubitskey, has the sole power to
dispose of the 93,360 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Jean, in such capacity, pursuant to Rule 13d-3 of the Exchange
Act, may be deemed to be the beneficial owner of the 8,233,641 shares owned by
all of the Reporting Persons, which represent 60.4% of the outstanding shares of
ADT. Other than the 93,360 shares held by him in such capacity, Mr. Jean, in
such capacity, disclaims beneficial ownership of the shares held by the
Reporting Persons.
Werner H. Jean, Trustee of the William H. and Patricia M. Smith Irrevocable
Trust Dated April 2, 1998 for Melena Rene Smith, has the sole power to dispose
of the 93,360 shares held by him in such capacity. By virtue of the Shareholder
Voting Agreements described under Item 4, the Reporting Persons have agreed to
vote in favor of the adoption and approval of the Merger Agreement. Therefore,
Mr. Jean, in such capacity, pursuant to Rule 13d-3 of the Exchange Act, may be
deemed to be the beneficial owner of the 8,233,641 shares owned by all of the
Reporting Persons, which represent 60.4% of the outstanding shares of ADT. Other
than the 93,360 shares held by him in such capacity, Mr. Jean, in such capacity,
disclaims beneficial ownership of the shares held by the Reporting Persons.
Werner H. Jean, Trustee of the William H. and Patricia M. Smith Irrevocable
Trust Dated April 2, 1998 for Brittany Frances Davies, has the sole power to
dispose of the 93,360 shares held by him in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Mr. Jean, in such capacity, pursuant to Rule 13d-3 of the Exchange
Act, may be deemed to be the beneficial owner of the 8,233,641 shares owned by
all of the Reporting Persons, which represent 60.4% of the outstanding shares of
ADT. Other than the 93,360 shares held by him in such capacity, Mr. Jean, in
such capacity, disclaims beneficial ownership of the shares held by the
Reporting Persons.
The William H. and Patricia M. Smith Foundation (the "Foundation") has the
sole power to dispose of the 1,000,000 shares held by it. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, the Foundation, pursuant to Rule 13d-3 of the Exchange Act, may be
deemed to be the beneficial owner of the 8,233,641 shares owned by all of the
Reporting Persons, which represent 60.4% of the outstanding shares of ADT. Other
than the 1,000,000 shares held by it, the Foundation disclaims beneficial
ownership of the shares held by the Reporting Persons.
<PAGE>
Donald L. Olesen has the sole power to dispose of the 872,400 shares held
by him. By virtue of the Shareholder Voting Agreements described under Item 4,
the Reporting Persons have agreed to vote in favor of the adoption and approval
of the Merger Agreement. Therefore, Mr. Olesen, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 872,400 shares held by him, Mr. Olesen disclaims
beneficial ownership of the shares held by the Reporting Persons.
Erik Olesen has the sole power to dispose of the 3,250 shares held by him.
By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Olesen, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 3,250 shares held by him, Mr. Olesen disclaims
beneficial ownership of the shares held by the Reporting Persons.
Erik Olesen, as Custodian for Ryan Olesen, has the sole power to dispose of
the 1,000 shares held by him in such capacity. By virtue of the Shareholder
Voting Agreements described under Item 4, the Reporting Persons have agreed to
vote in favor of the adoption and approval of the Merger Agreement. Therefore,
Mr. Olesen, in such capacity, pursuant to Rule 13d-3 of the Exchange Act, may be
deemed to be the beneficial owner of the 8,233,641 shares owned by all of the
Reporting Persons, which represent 60.4% of the outstanding shares of ADT. Other
than the 1,000 shares held by him in such capacity, Mr. Olesen, in such
capacity, disclaims beneficial ownership of the shares held by the Reporting
Persons.
Christopher Olesen has the sole power to dispose of the 3,250 shares held
by him. By virtue of the Shareholder Voting Agreements described under Item 4,
the Reporting Persons have agreed to vote in favor of the adoption and approval
of the Merger Agreement. Therefore, Mr. Olesen, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 3,250 shares held by him, Mr. Olesen disclaims
beneficial ownership of the shares held by the Reporting Persons.
Nicole Olesen has the sole power to dispose of the 3,250 shares held by
her. By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Ms. Olesen, pursuant to Rule 13d-3 of the
Exchange Act, may be deemed to be the beneficial owner of the 8,233,641 shares
owned by all of the Reporting Persons, which represent 60.4% of the outstanding
shares of ADT. Other than the 3,250 shares held by her, Ms. Olesen disclaims
beneficial ownership of the shares held by the Reporting Persons.
Nicole Olesen, as Custodian for Austin Olesen, has the sole power to
dispose of the 1,000 shares held by her in such capacity. By virtue of the
Shareholder Voting Agreements described under Item 4, the Reporting Persons have
agreed to vote in favor of the adoption and approval of the Merger Agreement.
Therefore, Ms. Olesen, in such capacity, pursuant to Rule 13d-3 of the Exchange
Act, may be deemed to be the beneficial owner of the 8,233,641 shares owned by
all of the Reporting Persons, which represent 60.4% of the outstanding shares of
ADT. Other than the 1,000 shares held by her in such capacity, Ms. Olesen, in
such capacity, disclaims beneficial ownership of the shares held by the
Reporting Persons.
Kyle Olesen has the sole power to dispose of the 6,600 shares held by him.
By virtue of the Shareholder Voting Agreements described under Item 4, the
Reporting Persons have agreed to vote in favor of the adoption and approval of
the Merger Agreement. Therefore, Mr. Olesen,
<PAGE>
pursuant to Rule 13d-3 of the Exchange Act, may be deemed to be the beneficial
owner of the 8,233,641 shares owned by all of the Reporting Persons, which
represent 60.4% of the outstanding shares of ADT. Other than the 6,600 shares
held by him, Mr. Olesen disclaims beneficial ownership of the shares held by the
Reporting Persons.
No transactions in the Common Stock were effected during the past 60 days
by the Reporting Persons named in Item 2, except that Donald L. Olesen made
gifts of shares of Common Stock to certain members of his family and each of the
William H. Smith Trust and the Patricia M. Smith Trust made gifts of shares of
Common Stock to certain family members of William H. and Patricia M. Smith, to
certain trusts and to a private foundation. Each of the foregoing donees is a
Reporting Person hereof. All of the foregoing gifts are listed on Exhibit E
attached hereto.
Each Reporting Person has the right to receive and the power to direct the
receipt of dividends from, and the proceeds from the sale of, the Sole
Dispositive Shares held by such Reporting Person.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
See Item 4 with respect to the Merger Agreement and the Voting Agreements.
A copy of the Merger Agreement and the Shareholder Voting Agreements are
attached hereto as Exhibits A and B - D, respectively, and are incorporated
herein by reference. Except for the agreements described in response to Item 4,
to the best knowledge of the undersigned, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the persons
enumerated in Item 2 and any other person, with respect to any securities of
ADT, including, but not limited to, transfer or voting arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
A. Agreement and Plan of Merger dated as of May 5, 1998 between
Analog Acquisition Corp. and ADT.
B. Stockholder Voting Agreement dated as of May 5, 1998 between
Analog Acquisition Corp. and George Fishman.
C. Stockholder Voting Agreement dated as of May 5, 1998 between Analog
Acquisition Corp. and William H. Smith and various parties related to
and affiliated trusts of William H. Smith.
D. Stockholder Voting and Rollover Agreement dated as of May 5, 1998
between Analog Acquisition Corp. and Donald L. Olesen and various
parties related to Donald L. Olesen.
E. Gift Schedule (see Item 5).
F. Joint Filing Agreement by and among the Reporting Persons.
<PAGE>
SCHEDULE 13D
SIGNATURE PAGE
After reasonable inquiry and to the best of each of the undersigned's
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated:
/s/ George N. Fishman
----------------------------------
George N. Fishman
/s/ William H. Smith
----------------------------------
William H. Smith
/s/ Patricia M. Smith
----------------------------------
Patricia M. Smith
William H. Smith Trust
By:_______________________________
Name:
Title:
Patricia M. Smith Trust
By:_______________________________
Name:
Title:
/s/ William L. Jacob
----------------------------------
William L. Jacob
/s/ Laura L. Jacob
----------------------------------
Laura L. Jacob
/s/ R. Thomas Jacob
----------------------------------
R. Thomas Jacob
<PAGE>
/s/ Barbara S. Jacob
----------------------------------
Barbara S. Jacob
/s/ William L. Jacob
----------------------------------
William L. Jacob,
as Custodian for Garth W. Jacob
/s/ William H. Jacob
----------------------------------
William H. Jacob
/s/ William L. Jacob
----------------------------------
William L. Jacob,
as Custodian for Veronika L. Jacob
/s/ Paul Kubitskey
----------------------------------
Paul Kubitskey
/s/ Wendy Kubitskey
----------------------------------
Wendy Kubitskey,
as Custodian for Emily Kubitskey
/s/ Wendy Kubitskey
----------------------------------
Wendy Kubitskey,
as Custodian for Kaitlyn Kubitskey
/s/ Scott D. Smith
----------------------------------
Scott D. Smith
/s/ Scott D. Smith,
----------------------------------
Scott D. Smith,
as Custodian for Brittany F. Davies
/s/ Kendall A. Smith
----------------------------------
Kendall A. Smith
/s/ Kathryn Smith
----------------------------------
Kathryn Smith
<PAGE>
/s/ Kendall A. Smith
----------------------------------
Kendall A. Smith,
as Custodian for Melena Smith
/s/ Wendy Kubitskey
----------------------------------
Wendy Kubitskey
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Emily Morell Kubitskey
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of William H. Smith and
Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Kaitlyn Hunt Kubitskey
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust dated
April 2, 1998 for
Melena Renee Smith
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Brittany Frances Davies
William H. and Patricia M. Smith Foundation
By: William H. Smith
Name:
Title:
<PAGE>
/s/ Donald L. Olesen
----------------------------------
Donald L. Olesen
/s/ Erik Olesen
----------------------------------
Erik Olesen
/s/ Debra Olesen
----------------------------------
Debra Olesen
/s/ Erik Olesen
----------------------------
Erik Olesen,
as Custodian for Ryan Olesen
/s/ Christopher L. Olesen
----------------------------
Christopher L. Olesen
/s/ Nicole Olesen
----------------------------
Nicole Olesen
/s/ Nicole Olesen
---------------------------
Nicole Olesen,
as Custodian for Austin Olesen
/s/ Kyle Olesen
------------------------------
Kyle Olesen
<PAGE>
EXHIBIT A
EXECUTION COPY
--------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER,
DATED AS OF MAY 5, 1998,
BETWEEN
ANALOG ACQUISITION CORP.
AND
ALLIED DIGITAL TECHNOLOGIES CORP.
--------------------------------------------------------------
<PAGE>
AGREEMENT AND PLAN OF MERGER
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Definitions.....................................................................................1
2. Transactions...................................................................................10
(a) The Merger............................................................................10
(b) The Closing...........................................................................10
(c) Effect of Merger......................................................................10
(d) Certificate of Incorporation..........................................................10
(e) Bylaws................................................................................10
(f) Directors and Officers................................................................11
(g) Conversion of Securities..............................................................11
(h) Employee Stock Options; Warrants......................................................12
(i) Dissenting Shares.....................................................................12
(j) Surrender of Shares; Stock Transfer Books.............................................13
3. Representations and Warranties of the Company..................................................14
(a) Organization, Qualification, and Corporate Power......................................14
(b) Capitalization........................................................................15
(c) Authorization of Transactions.........................................................15
(d) Noncontravention......................................................................16
(e) Filings with the SEC..................................................................16
(f) Financial Statements..................................................................16
(g) Events Subsequent to Most Recent Fiscal Year End......................................17
(h) No Undisclosed Liabilities............................................................17
(i) Brokers' Fees.........................................................................17
(j) Absence of Certain Changes............................................................17
(k) Litigation............................................................................18
(l) Taxes.................................................................................18
(m) Compliance with Laws..................................................................19
(n) Permits...............................................................................19
(o) Contracts.............................................................................20
(p) Intellectual Property Rights..........................................................20
(q) Board Recommendation..................................................................21
(r) ERISA.................................................................................21
(s) Labor and Employment Matters..........................................................23
(t) Real Estate...........................................................................24
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
(u) Environmental Matters.................................................................24
4. Representations and Warranties of AAC..........................................................26
(a) Organization..........................................................................26
(b) Debt Financing........................................................................27
(c) Authorization of the Transactions.....................................................27
(d) Noncontravention......................................................................27
(e) Brokers' Fees.........................................................................28
(f) ......................................................................................28
5. Covenants......................................................................................28
(a) Further Assurances....................................................................28
(b) Notices and Consents..................................................................28
(c) Regulatory Matters and Approvals......................................................29
(d) Securities Act, Securities Exchange Act, and State Securities Laws....................29
(e) DGCL; Special Meeting.................................................................29
(f) Accounting Treatment..................................................................30
(g) Debt Financing........................................................................30
(h) Operation of the Company's Business...................................................30
(i) Full Access...........................................................................31
(j) Notice of Developments................................................................32
(k) No Solicitation.......................................................................32
(l) Insurance and Indemnification.........................................................34
(m) Joint Disclosure Documents............................................................34
(n) Comfort Letters.......................................................................34
(o) Options...............................................................................34
6. Conditions to Obligation to Close..............................................................35
(a) Conditions to Closing by AAC..........................................................35
(b) Conditions to Closing by the Company..................................................36
7. Termination....................................................................................38
(a) Termination of Agreement..............................................................38
(b) Effect of Termination.................................................................39
8. Miscellaneous..................................................................................39
(a) Press Releases and Public Announcement................................................39
(b) No Third Party Beneficiaries..........................................................39
(c) Entire Agreement......................................................................39
(d) Succession and Assignment.............................................................40
(e) Counterparts..........................................................................40
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
(f) General Interpretive Principles.......................................................40
(g) Notices...............................................................................41
(h) Governing Law.........................................................................42
(i) Waiver of Jury Trial..................................................................42
(j) Amendments and Waivers................................................................42
(k) Severability..........................................................................42
(l) Expenses..............................................................................43
(m) Incorporation of Exhibits and Schedules...............................................43
(n) Transfer Taxes........................................................................43
(o) Limited Recourse......................................................................43
(p) Parties in Interest...................................................................43
(q) Specific Performance..................................................................43
(r) Headings..............................................................................43
(s) Counterparts..........................................................................43
</TABLE>
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger (the "Agreement"), dated as of
May 5, 1998, between Analog Acquisition Corp., a Delaware corporation ("AAC"),
and Allied Digital Technologies Corp., a Delaware corporation (the "Company").
AAC and the Company are sometimes referred to collectively herein as the
"Parties."
WITNESSETH:
WHEREAS, the Boards of Directors of AAC and the Company have
each determined that it is in the best interests of its shareholders for AAC to
acquire the Company and consummate the transactions contemplated by the
Agreement (the "Transactions") upon the terms and subject to the conditions set
forth herein; and
WHEREAS, also in furtherance of such acquisition, the Boards
of Directors of AAC and the Company have each approved the merger (the "Merger")
of AAC with and into the Company in accordance with the General Corporation Law
of the State of Delaware ("DGCL") upon the terms and subject to the conditions
set forth herein; and
WHEREAS, AAC is unwilling to enter into this Agreement unless,
contemporaneously with the execution and delivery of this Agreement, certain
beneficial and record stockholders of the Company have entered into certain
voting agreements, substantially in the form of Exhibit A-1 (the "Voting
Agreements") and certain rollover agreements, substantially in the form of
Exhibit A-2 (the "Rollover Agreements"), or combination thereof, in each case
providing for certain actions relating to certain of the shares ("Shares") of
common stock, par value $.01 per Share, of the Company ("Company Common Stock")
or Options (as hereinafter defined) owned or controlled by them;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as follows:
1. Definitions.
"399" means 399 Venture Partners Inc., a Delaware corporation.
"AAC" has the meaning set forth in the preamble.
<PAGE>
"Acquisition Proposals" has the meaning set forth in Section 5(k)(i).
"Acquisition Transaction" has the meaning set forth in Section 5(k)(i).
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Agreement" has the meaning set forth in the preamble.
"AMEX" means the American Stock Exchange.
"Anchor Bay Option" has the meaning set forth in Section 2(h).
" Bankruptcy Code" has the meaning set forth in Section 6(b).
"Benefit Plan" means any Plan, other than a Multiemployer Plan,
existing at the Closing Date or within the 5 years prior thereto, established or
to which contributions have at any time been made by the Company or any
Subsidiary thereof, or any predecessor of the Company or any Subsidiary thereof,
under which any employee, former employee or director of the Company or any
Subsidiary thereof, or any beneficiary thereof is covered, is eligible for
coverage or has benefit rights in respect of service to the Company or any
Subsidiary thereof.
"Business Day" means any day on which the principal offices of the SEC
in Washington, D.C. are open to accept filings or, in the case of determining a
date when any payment is due, any day other than a day on which banks in New
York, New York are required or authorized to be closed.
"Capital Lease" means a Lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a Liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a Liability
on a balance sheet of such Person.
"Certificate of Merger" has the meaning set forth in Section 2(c).
"Certificates" has the meaning set forth in Section 2(j).
<PAGE>
"Class A Common Stock" has the meaning set forth in Section 2(g)(iv).
"Class A Warrants" has the meaning set forth in Section 2(h).
"Class B Warrants" has the meaning set forth in Section 2(h).
"Class C Warrants" has the meaning set forth in Section 2(h).
"Closing" has the meaning set forth in Section 2(b).
"Closing Date" has the meaning set forth in Section 2(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the preamble.
"Company Comfort Letter" has the meaning set forth in Section 5(n).
"Company Common Stock" has the meaning set forth in the recitals.
"Company Preferred Stock" has the meaning set forth in Section 3(b).
"Company Stockholder" means any Person who or which holds any Shares of
Company Common Stock.
"Confidential Information" means any information concerning the
businesses and affairs of the Company and its Subsidiaries that is not (i)
already generally available to the public, (ii) otherwise required to be
disclosed by law or court order, or (iii) already within the possession of the
party to whom the information is proposed to be delivered without violating the
terms of any confidentiality agreement governing such information.
"Confidentiality Agreement" means the confidentiality agreement, dated
as of January 16, 1998, between CVC and the Company.
"Contracts" means, with respect to any Person, any agreement, contract,
obligation, note, bond, mortgage, indenture, option, Lease, promise or
undertaking that is legally binding on such Person or to which such Person is a
party.
"CVC" means Citicorp Venture Capital, Ltd., a New York corporation.
3
<PAGE>
"Debt" with respect to any Person means, at any time, without
duplication, (a) Liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable preferred stock; (b) Liabilities for the
deferred purchase price of property acquired by such Person (excluding accounts
payable arising in the Ordinary Course of Business but including all Liabilities
created or arising under any conditional sale or other title retention agreement
with respect to any such property); (c) Capital Lease Obligations of such
Person; (d) Liabilities for borrowed money secured by any Lien with respect to
any property owned by such Person (whether or not such Person has assumed or
otherwise become liable for such Liabilities); (e) Liabilities in respect of
letters of credit or instruments serving a similar function issued or accepted
for its account by banks and other financial institutions (whether or not
representing obligations for borrowed money); (f) Swap Obligations of such
Person; and (g) any Guaranty of such Person with respect to Liabilities of a
type described in any of clauses (a) through (f) hereof.
"Debt Financing" has the meaning set forth in Section 4(b).
"Definitive Proxy Materials" means the definitive proxy materials
relating to the Special Meeting.
"DGCL" has the meaning set forth in the recitals.
"Dissenting Shares" has the meaning set forth in Section 2(i).
"Effective Time" has the meaning set forth in Section 2(c).
"Environment" means all air, surface water, groundwater or land,
including land surface or subsurface, including all fish, wildlife, biota and
all other natural resources.
"Environmental Claim" means any and all administrative or judicial
actions, suits, orders, claims, Liens, notices, notices of violations,
investigations, complaints, requests for information, proceedings, or other
communication (written or, to the Knowledge of the Company or any Subsidiary
thereof, oral), whether criminal or civil pursuant to or relating to any
applicable Environmental Law by any Person (including but not limited to any
Governmental or Regulatory Body, private Person and citizens' group) based upon,
alleging, asserting or claiming any actual or potential (i) violation of or
Liability under any Environmental Law, (ii) violation of any Environmental
Permit, or (iii) Liability for investigatory costs, cleanup costs, removal
costs, remedial costs, response costs, natural resource damages, property
damage, personal injury, fines or penalties arising out of,
4
<PAGE>
based on, resulting from or related to the presence, Release or threatened
Release into the Environment, of any Hazardous Materials at any location,
including but not limited to any off-Site location to which Hazardous Materials
or materials containing Hazardous Materials were sent for handling, storage,
treatment or disposal.
"Environmental Clean-up Site" means any location which is listed or
proposed for listing on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System, or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any pending or threatened action, suit, proceeding or investigation
related to or arising from any alleged violation of any Environmental Law.
"Environmental Law" means any and all current and future, federal,
state, local, provincial and foreign, civil and criminal laws, statutes,
ordinances, orders, codes, rules, regulations, Environmental Permits, policies,
guidance documents, judgments, decrees, injunctions or agreements with any
Governmental or Regulatory Body, relating to the protection of health and the
Environment, and/or governing the handling, use, generation, treatment, storage,
transportation, disposal, manufacture, distribution, formulation, packaging,
labeling or Release of Hazardous Materials, whether now existing or subsequently
amended or enacted, including but not limited to: the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Hazardous Material
Transportation Act, 49 U.S.C. Section 1801 et seq.; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Oil Pollution Act of
1990, 33 U.S.C. Section 2701 et seq.; and the state analogies thereto, all as
amended or superseded from time to time; and any common law doctrine, including
but not limited to, negligence, nuisance, trespass, personal injury or property
damage related to or arising out of the presence, Release or exposure to a
Hazardous Material.
"Environmental Permit" means any federal, state, local, provincial or
foreign permits, licenses, approvals, consents or authorizations required by any
Governmental or Regulatory Body under or in connection with any Environmental
Law and includes any and all orders, consent orders or binding agreements issued
or entered into by a Governmental or Regulatory Body under any applicable
Environmental Law.
"Equity Financing Commitment" has the meaning set forth in Section
4(b).
5
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any Person who is, or was, a member of a
controlled group (within the meaning of Section 412(n)(6) of the Code) that
includes, or at any time included, the Company or any Subsidiary thereof, or any
predecessor of any of the foregoing.
"Fixed Amount" has the meaning set forth in Section 5(k).
"GAAP" means United States generally accepted accounting principles as
in effect from time to time, consistently applied.
"Governmental or Regulatory Body" means any government or political
subdivision thereof, whether foreign or domestic, federal, state, provincial,
county, local, municipal or regional, or any other governmental entity, any
agency, authority, department, division or instrumentality of any such
government, political subdivision, or other governmental entity, any court,
arbitral tribunal or arbitrator, and any nongovernmental regulating body, to the
extent that the rules, regulations or orders of such body have the force of law.
"Guaranties" by any Person means all obligations (other than
endorsements in the Ordinary Course of Business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Debt, cash dividend or other monetary obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Debt or obligation or any
property or assets constituting security therefor; (ii) to advance or supply
funds for the purchase or payment of such Debt or obligation; (iii) to lease
property or to purchase securities or other property or services primarily for
the purpose of assuring the owner of such Debt or obligation of the ability of
the primary obligor to make payment of the Debt or obligation; or (iv) otherwise
to assure the owner of the Debt or obligation of the primary obligor against
loss in respect thereof. For the purposes of all computations made under this
Agreement, a Guaranty in respect of any Debt for borrowed money shall be deemed
to be Debt equal to the principal amount of such Debt for borrowed money which
has been guaranteed, and a Guaranty in respect of any other obligation or
Liability or any dividend shall be deemed to be Debt equal to the maximum
aggregate amount of such obligation, Liability or dividend unless such Guaranty
is limited.
6
<PAGE>
"Hazardous Material" means petroleum, petroleum hydrocarbons or
petroleum products, petroleum by-products, radioactive materials, asbestos or
asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, lead or lead- containing materials, polychlorinated biphenyls and
any other chemicals, materials, substances or wastes in any amount or
concentration which are now or hereafter become defined as or included in the
definition of "hazardous substances," "hazardous materials," "hazardous wastes,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "pollutants," "regulated substances," "solid wastes" or
"contaminants" or words of similar import, under any Environmental Law.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Intellectual Property" shall mean all trademarks and trademark rights,
trade names and trade name rights, service marks and service mark rights,
service names and service name rights, copyrights and copyright rights, patents
and patent rights, brand names, trade dress, business and product names, logos,
slogans, trade secrets, inventions, processes, formulae, industrial models,
processes, designs, specifications, data, technology, methodologies, computer
programs (including all source codes), confidential and proprietary information,
whether or not subject to statutory registration, and all related technical
information, manufacturing, engineering and technical drawings, know-how and all
pending applications for and registrations of patents, trademarks, service marks
and copyrights, and the right to sue for past payment, if any, in connection
with any of the foregoing, and all documents, disks and other media on which any
of the foregoing is stored.
"Joint Disclosure Documents" means the disclosure document combining
the Schedule 13E-3 and the Definitive Proxy Materials.
"Knowledge" means actual or constructive knowledge without independent
investigation of any current director or current executive officer.
"Liability" means all indebtedness, obligations and other liabilities
(or contingencies that have not yet become liabilities) of a Person (whether
absolute, accrued, contingent (or based upon any contingency), fixed or
otherwise, or whether due or to become due).
"Lease" means all oral and written leases, subleases, license
agreements and
7
<PAGE>
other use and occupancy agreements (and any amendments, renewals, supplements,
modifications or extensions thereto), in each case affecting or relating to real
property under which the Company or any Subsidiary thereof is a party or to what
it or any of its property is bound.
"Lien" means any lien, claim, restriction, security interest,
preemptive right, covenant, easement, mortgage, other encumbrance or any claim
of any Third Party other than mechanic's, materialman's and similar liens.
"Material Adverse Effect" means any material adverse effect on the
financial condition or operations, business, prospects, assets or results of
operations of the Company and its Subsidiaries taken as a whole, or AAC, as the
context in this Agreement requires.
"Merger" has the meaning set forth in the recitals.
"Merger Consideration" has the meaning set forth in Section 2(g).
"Most Recent Fiscal Year End" has the meaning set forth in Section
3(f).
"Multiemployer Plan" means a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA with respect to which the Company or any ERISA
Affiliate has an obligation to contribute or has or could have withdrawal
liability under Section 4201 of ERISA.
"Options" has the meaning set forth in Section 2(h).
"Option Plan" means Allied Digital Technologies Corp. Amended and
Restated 1994 Long Term Incentive Plan.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Parties" has the meaning set forth in the preamble.
"Paying Agent" has the meaning set forth in Section 2(j).
"Permits" means each material license (other than with respect to
Intellectual Property), franchise, permit, certificate, approval, consent or
other similar authorization
8
<PAGE>
affecting, or relating in any way to, the assets or business of the Company and
its Subsidiaries.
"Per Share Amount" has the meaning set forth in Section 2(g).
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, an
estate, a joint venture, an unincorporated organization or other entity or a
Governmental or Regulatory Body.
"Plan" means any bonus, incentive compensation, deferred compensation,
pension, profit sharing, retirement, stock purchase, stock option, stock
ownership, stock appreciation rights, phantom stock, leave of absence, layoff,
vacation, day or dependent care, legal services, cafeteria, life, health,
accident, disability, workmen's compensation or other insurance, severance,
separation or other employee benefit plan, practice, policy or arrangement of
any kind, whether written or oral, or whether for the benefit of a single
individual or more than one individual including, without limitation, any
"employee benefit plan" within the meaning of Section 3(3) of ERISA (whether or
not subject thereto).
"Preliminary Proxy Materials" has the meaning set forth in Section
5(d)(i).
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing of a
Hazardous Material into the Environment.
"Requisite Stockholder Approval" means the affirmative vote of at least
a majority, but less than the 66 2/3% of the Shares in favor of this Agreement
and the Merger in accordance with the DGCL.
"Requisite Super-Majority Stockholder Approval" means the affirmative
vote of at least 66 2/3% of the Shares in favor of the Merger and this Agreement
in accordance with the DGCL.
"Restricted Parties" has the meaning set forth in Section 5(k).
"Revolving Credit Facility" has the meaning set forth in Section 5(g).
"Rollover Agreements" has the meaning set forth in the recitals.
9
<PAGE>
"Rollover Stockholders" has the meaning set forth in Section 2(g)(iii).
"Schedule 13E-3" has the meaning set forth in Section 3(y).
"SEC" means the Securities and Exchange Commission.
"SEC Reports" has the meaning set forth in Section 3(e).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Share(s)" has the meaning set forth in the recitals.
"Site" means any of the real properties currently or previously owned,
leased or operated by the Company or any Subsidiary thereof, including all soil,
subsoil, surface water and groundwater thereat.
"Special Meeting" has the meaning set forth in Section 3(y).
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Superior Acquisition Proposal" has the meaning set forth in Section
7(a)(iv).
"Surviving Corporation" has the meaning set forth in Section 2(a).
"Surviving Corporation Common Stock" has the meaning set forth in
Section 2(g)(iv).
"Swap Obligations" means, with respect to any Person, payment
obligations with respect to interest rate swaps, currency swaps and similar
obligations obligating such Person to make payments, whether periodically or
upon the happening of a contingency. For the purposes of this Agreement, the
amount of any Swap Obligation shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap Obligation had terminated at the end of
such fiscal quarter, and, in making such determination, if any agreement
relating to such Swap Obligation provides for the netting of amounts payable
10
<PAGE>
by and to such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then, in each such case,
the amount of such obligation shall be the net amount so determined.
"Taxes" means all federal, state, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
severance, stamp, payroll, sales, employment, unemployment, disability, use,
property, withholding, excise, production, value added, occupancy and other
taxes, duties or assessments of any nature whatsoever together with all
interest, penalties, fines and additions to tax imposed with respect to such
amounts and any interest in respect of such penalties and additions to tax.
"Tax Returns" means all returns and reports (including elections,
claims, declarations, disclosures, schedules, estimates, computations and
information returns) required to be supplied to a Tax authority in any
jurisdiction relating to Taxes.
"Third Party" means any "group," as described in Rule 13d-5(b)
promulgated under the Securities Exchange Act, or Person, other than AAC or any
of its Affiliates.
"Transactions" has the meaning set forth in the recitals.
"Warrants" has the meaning set forth in Section 2(h).
"Voting Agreements" has the meaning set forth in the recitals.
2. Transactions.
(1) The Merger. Subject to the terms and conditions of this Agreement and
in accordance with the DGCL, AAC will merge with and into the Company at the
Effective Time. Upon the Effective Time, the separate existence of AAC shall
cease and the Company shall be the corporation surviving the Merger and shall
continue under the name Allied Digital Technologies Corp. (the "Surviving
Corporation").
(2) The Closing. The closing of the Transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Morgan, Lewis &
Bockius LLP in New York City commencing at 9:00 a.m., local time, on the first
Business Day immediately following the satisfaction or waiver of all conditions
to the obligations of the Parties to consummate the Transactions as set forth in
Article 6 (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to satisfaction or waiver of those conditions) or
such other date as the Parties may mutually
11
<PAGE>
determine (the "Closing Date").
(3) Effect of Merger. The Merger shall become effective at the time (the
"Effective Time") the Company duly files a certificate of merger ("Certificate
of Merger") with the Secretary of State of the State of Delaware or at such
later time as is specified in the Certificate of Merger. The Merger shall have
the effect set forth in the DGCL. The Surviving Corporation may, at any time
after the Effective Time, take any action (including executing and delivering
any document) in the name and on behalf of either the Company or AAC in order to
carry out and effectuate the Transactions.
(4) Certificate of Incorporation. At the Effective Time, the certificate of
incorporation of the Surviving Corporation shall be amended to read in its
entirety as set forth in Exhibit B -1 attached hereto if the Transactions
receive the Requisite Stockholder Approval or Exhibit B-2 attached hereto if the
Transactions receive the Requisite Super-Majority Stockholder Approval, in each
case until thereafter amended as provided by law and such certificate of
incorporation.
(1)
(5) Bylaws. At the Effective Time, the bylaws of the Surviving Corporation
shall be amended to read as set forth in Exhibit C attached hereto until
thereafter amended as provided by law and such bylaws.
(6) Directors and Officers. The directors of the Company immediately prior
to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the certificate of
incorporation and bylaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
(7) Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of AAC, the Company or the holders of
any of the following securities:
(1) Each Share (or fraction thereof) issued and outstanding
immediately prior to the Effective Time (other than any Shares to be canceled
pursuant to Section 2(g)(ii), any Shares to remain outstanding pursuant to
Section 2(g)(iii) and any Dissenting Shares (as defined in Section 2(i)) shall
be canceled and shall be converted automatically into the right to receive an
amount equal to $5 (the "Per Share Amount") in cash (the "Merger Consideration")
payable, without interest, to the holder of such Share, upon surrender, in the
manner provided in Section 2(j), of the Certificate that formerly
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<PAGE>
evidenced such Share.
(2) Treasury Stock and AAC-owned Shares. At and as of the Effective
Time, by virtue of the Merger and without any action on the part of the Company
or AAC or any holder of Shares of Company Common Stock, each Share of Company
Common Stock owned by the Company or any Subsidiary as treasury stock and each
Share owned by AAC held immediately prior to the Effective Time shall be
canceled and cease to exist, and no consideration shall be delivered or
deliverable with respect thereto.
(3) Certain of the Shares held by and registered in the names of
certain Company Stockholders who are members of management of the Company (the
"Rollover Stockholders"), in each case as set forth in Exhibit D shall not be
canceled as provided above, but shall remain outstanding and become shares of
Class A Common Stock (as defined below).
(4) Conversion of AAC Common and Preferred Stock and Shares Held by
399. All of (A) the issued and outstanding shares of common stock, par value
$.01 per share, of AAC, (B) the issued and outstanding shares of preferred
stock, par value $.01 per share, of AAC, and (C) 1,100,110 Shares of Company
Common Stock held by and registered in the name of 399, shall be converted into
74,000 shares of Class A common stock, $.01 par value per share, of the
Surviving Corporation ("Class A Common Stock"), 351,000 shares of Class B Common
Stock, $.01 par value per share, of the Surviving Corporation and 165,000 shares
of Series A preferred stock, par value $.01 per share, of the Surviving
Corporation.
(1)
(8) Employee Stock Options; Warrants.
(1) Unless otherwise provided in the Rollover Agreements, each option
to purchase Shares that is not a Substitute Option (as defined in the Option
Plan) or the Option held by Anchor Bay Entertainment Inc. issued on September
15, 1997 pursuant to a Modification Agreement, dated September 12, 1997, between
the Company and Anchor Bay Entertainment (the "Anchor Bay Option") and is
outstanding immediately prior to the Effective Time (whether or not vested or
exercisable) shall, at the Effective Time, be canceled, and in exchange
therefor, each holder of each such Option shall receive a cash payment which,
prior to deduction for applicable withholding Taxes, is in an amount equal to
the product of (A) the excess, if any, of the Per Share Amount over the per
share exercise price of such Option and (B) the number of shares subject to the
Option (whether or not vested). If the per share exercise price of any such
Option
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<PAGE>
equals or exceeds the Per Share Amount, such Option shall be canceled without
any payment required thereunder. The Option Plan will not survive the Effective
Time.
(2) The Class A warrants issued by the Company with an exercise price
of $6.75 per share of the Company Common Stock (the "Class A Warrants"), Class B
warrants issued by the Company with an exercise price of $7.50 per share of the
Company Common Stock (the "Class B Warrants") and Class C warrants issued by the
Company with an exercise price of $9.00 per share of the Company Common Stock
(the "Class C Warrants") (the Class A Warrants, Class B Warrants and Class C
Warrants collectively being referred to herein as the "Warrants") the Substitute
Options, and the Anchor Bay Option will have been adjusted in accordance with
their terms, unless any such Warrants have expired in accordance with their
terms, such that, upon exercise and payment of the exercise price, any holder
thereof shall have the right to receive only $5 per share, and in no event shall
have the right to receive any shares of capital stock of the Company or the
Surviving Corporation.
(9) Dissenting Shares. Notwithstanding any provisions of the Agreement to
the contrary, Shares of Company Common Stock which are issued and outstanding
immediately prior to the Effective Time and which are held by a Company
Stockholder who has not voted such Shares in favor of the Merger, who shall have
delivered a written demand for appraisal of such Shares in the manner provided
by the DGCL and who, as of the Effective Time, shall not have effectively
withdrawn or lost such right to appraisal ("Dissenting Shares") shall not be
converted into a right to receive the Merger Consideration. The holders thereof
shall be entitled only to such rights as are granted by Section 262 of the DGCL.
Each holder of Dissenting Shares who becomes entitled to payment for such Shares
pursuant to Section 262 of the DGCL shall receive payment therefor from the
Surviving Corporation in accordance with the DGCL; provided, however, that (i)
if any such holder of Dissenting Shares shall have failed to establish his
entitlement to appraisal rights as provided in Section 262 of the DGCL, (ii) if
any such holder of Dissenting Shares shall have effectively withdrawn his demand
for appraisal of such Shares or lost his right to appraisal and payment for his
Shares under Section 262 of the DGCL or (iii) if neither any holder of
Dissenting Shares nor the Surviving Corporation shall have filed a petition
demanding a determination of the value of all Dissenting Shares within the time
provided in Section 262 of the DGCL, such holder shall forfeit the right to
appraisal of such Shares and each such Share shall be treated as if such Share
had been converted, as of the Effective Time, into a right to receive the Merger
Consideration, without interest thereon, from the Surviving Corporation as
provided in this Section 2. The Company shall give AAC prompt notice of any
demands received by the Company for appraisal of Shares, and, until the
Effective Time, AAC
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shall have the right to participate in all negotiations and proceedings with
respect to such demands. The Company shall not, except with the prior written
consent of AAC, make any payment with respect to, or settle or offer to settle,
any such demands.
(10) Surrender of Shares; Stock Transfer Books.
(1) Prior to the Effective Time, AAC shall designate a bank or trust
company (which bank or trust company shall be reasonably acceptable to the
Company) to act as agent (the "Paying Agent") for the holders of Shares in
connection with the Merger to receive the funds to which holders of Shares shall
become entitled pursuant to Section 2(g)(i) and shall deposit with the Paying
Agent the proceeds of the Debt Financing required in order to consummate the
Transactions. Such funds shall be invested by the Paying Agent as directed by
the Surviving Corporation, provided that such investments shall be in
obligations of or guaranteed by the United States of America or of any agency
thereof and backed by the full faith and credit of the United States of America,
in commercial paper obligations rated A-1 or P-1 or better by Moody's Investors
Service, Inc. or Standard & Poor's Corporation, respectively, or in deposit
accounts, certificates of deposit or banker's acceptances of, repurchase or
reverse repurchase agreements with, or Eurodollar time deposits purchased from,
commercial banks with capital, surplus and undivided profits aggregating in
excess of $1.0 billion (based on the most recent financial statements of such
bank which are then publicly available at the SEC or otherwise).
(2) Promptly after the Effective Time, the Surviving Corporation shall
cause to be mailed to each Person who was, at the Effective Time, a holder of
record of Shares entitled to receive the Merger Consideration pursuant to
Section 2(g)(i), a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the certificates
evidencing Shares (the "Certificates") shall pass, only upon proper delivery of
the Certificates to the Paying Agent) and instructions for use in effecting the
surrender of the Certificates pursuant to such letter of transmittal. Upon
surrender to the Paying Agent of a Certificate, together with such letter of
transmittal, duly completed and validly executed in accordance with the
instructions thereto, and such other documents as may be required pursuant to
such instructions, the holder of such Certificate shall be entitled to receive
in exchange therefor the Merger Consideration for each Share formerly evidenced
by such Certificate, and such Certificate shall then be canceled. No interest
shall accrue or be paid on the Merger Consideration payable upon the surrender
of any Certificate for the benefit of the holder of such Certificate. If payment
of the Merger Consideration is to be made to a Person other than the Person in
whose name the surrendered Certificate is registered on the stock transfer books
of the
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<PAGE>
Company, it shall be a condition of payment that the Certificate so surrendered
shall be endorsed properly or otherwise be in proper form for transfer and that
the Person requesting such payment shall have paid all transfer and other Taxes
required by reason of the payment of the Merger Consideration to a Person other
than the registered holder of the Certificate surrendered or shall have
established to the satisfaction of the Surviving Corporation that such Taxes
either have been paid or are not applicable.
(3) At any time following the sixth month after the Effective Time,
the Surviving Corporation shall be entitled to require the Paying Agent to
deliver to it any funds which had been made available to the Paying Agent and
not disbursed to holders of Shares (including, without limitation, all interest
and other income received by the Paying Agent in respect of all funds made
available to it), and thereafter such holders shall be entitled to look to the
Surviving Corporation (subject to abandoned property, escheat and other similar
laws) only as general creditors thereof with respect to any Merger Consideration
that may be payable upon due surrender of the Certificates held by them to the
fullest extent permitted by law. Notwithstanding the foregoing, to the fullest
extent permitted by law, neither the Surviving Corporation nor the Paying Agent
shall be liable to any holder of a Share for any Merger Consideration delivered
in respect of such Share to a public official pursuant to any abandoned
property, escheat or other similar law.
(4) Any portion of the Merger Consideration made available to the
Paying Agent to pay for Shares of Company Common Stock for which appraisal
rights have been perfected shall be paid to the Surviving Corporation upon
demand.
(5) At the Effective Time, the stock transfer books of the Company
shall be closed to the extent permitted by applicable law and thereafter there
shall be no further registration of transfers of Shares on the records of the
Company. From and after the Effective Time, the holders of Shares outstanding
immediately prior to the Effective Time shall cease to have any rights with
respect to such Shares except as otherwise provided herein or by applicable law.
(6) The Surviving Corporation shall pay all charges and expenses of
the Paying Agent.
3. Representations and Warranties of the Company. The Company represents
and warrants to AAC as follows, except as set forth in the disclosure schedule
attached hereto:
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(1) Organization, Qualification, and Corporate Power. Each of the Company
and its Subsidiaries is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation. Each of
the Company and its Subsidiaries has full corporate power and authority to carry
on the businesses in which it is engaged and to own and use the properties owned
and used by it. Each of the Company and its Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except for those jurisdictions
where the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect.
(2) Capitalization. (i) The authorized capital stock of the Company
consists of 25,000,000 Shares of Company Common Stock and 1,000,000 shares, $.01
par value per share, of preferred stock (the "Company Preferred Stock"). As of
the date of this Agreement: (A) 13,623,394 Shares of Company Common Stock were
issued and outstanding, (B) no shares of Company Preferred Stock were issued or
outstanding, and (C) no Shares of Company Common Stock were held by the Company
in its treasury. All of the issued and outstanding Shares of Company Common
Stock have been duly authorized and are validly issued, fully paid, and
nonassessable. Except as indicated in Schedule 3(b), there are no outstanding or
authorized options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights or other contracts or commitments that could require the
Company or any Subsidiary thereof to issue, sell, or otherwise cause to become
outstanding any of its capital stock or the capital stock of any Subsidiary
thereof. There are no outstanding or authorized stock appreciation, phantom
stock, profit participation or similar rights with respect to the Company or any
of its Subsidiaries. All shares of capital stock of Subsidiaries of the Company
are wholly owned directly or indirectly by the Company and have been duly
authorized and are validly issued, fully paid and nonassessable.
(ii) Except as provided in Schedule 3(b), there are no voting
trusts or shareholder agreements to which the Company or any Subsidiary thereof
is a party with respect to the voting of the capital stock of the Company or any
Subsidiary thereof.
(iii) The Class A Warrants and Class B Warrants expire on July
28, 1998 and the Class C Warrants expire on January 11, 2000. Upon consummation
of the Transactions, the Warrants, Substitute Options and Anchor Bay Option
shall have been adjusted so that, in the case of each Warrant (other than any
Warrant that has expired in accordance with its terms) or applicable Option,
upon exercise and payment of the exercise price, any holder thereof shall have
the right to receive only $5 per share, and in
17
<PAGE>
no event shall have the right to receive any shares of capital stock of the
Company or the Surviving Corporation.
(3) Authorization of Transactions. The Company has, and subject to the
Requisite Stockholder Approval will have, full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by the Company of this Agreement and the Merger, and the
performance of the Company's obligations hereunder, have been and, subject to
the Requisite Stockholder Approval or Requisite Super-Majority Stockholder
Approval, as the case may be, will be, duly authorized by all requisite
corporate action, and this Agreement has been executed and delivered by the
Company. This Agreement constitutes the valid and legally binding obligation of
the Company, enforceable in accordance with its terms and conditions.
(4) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the Transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any Governmental or
Regulatory Body or court to which any of the Company and its Subsidiaries is
subject, including, without limitation, Section 203 of the DGCL, or any
provision of the certificate of incorporation or bylaws of any of the Company
and its Subsidiaries or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any Party the right to
accelerate, terminate, modify, or cancel or require any notice under any
Contract to which any of the Company and its Subsidiaries is a party or by which
it is bound or to which any of its assets is subject, except where the
violation, conflict, breach, default, acceleration, termination, modification,
cancellation or failure to give notice would not have a Material Adverse Effect
or a material adverse effect on the ability of the Parties to consummate the
Transactions. Other than in connection with the provisions of the HSR Act, the
DGCL, the Securities Exchange Act, the Securities Act, the state securities
laws, and as set forth on Schedule 3(d), none of the Company and its
Subsidiaries needs to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any Governmental or Regulatory Body in
order for the Parties to consummate the Transactions or execute, deliver and
perform its obligations under this Agreement, except where the failure to give
notice, to file, or to obtain any authorization, consent or approval would not
have a Material Adverse Effect or a material adverse effect on the ability of
the Parties to consummate the Transactions.
(5) Filings with the SEC. Since July 31, 1994, the Company and its
Subsidiaries have made all filings with the SEC that are required under the
Securities Act and the Securities Exchange Act (collectively, the "SEC
Reports"). Each of the SEC
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<PAGE>
Reports has complied with the applicable provisions of the Securities Act and
the Securities Exchange Act and the rules and regulations promulgated thereunder
in all material respects. None of the SEC Reports, as of their respective dates,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Company has
heretofore furnished or made available to AAC complete and correct copies of all
amendments and modifications that have not been filed by the Company with the
SEC to all agreements, documents and other instruments that previously had been
filed by the Company with the SEC and are currently in effect.
(6) Financial Statements. The Company has delivered to AAC an Annual Report
on Form 10-K of the Company for the fiscal year ended July 31, 1997 (the "Most
Recent Fiscal Year End"). The financial statements included in or incorporated
by reference into such SEC Reports (including the related notes and schedules)
have been prepared in accordance with GAAP and present fairly the financial
condition of the Company and its Subsidiaries as of the indicated dates and the
results of operations of the Company and its Subsidiaries for the indicated
periods.
(7) Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent
Fiscal Year End, there has not been any Material Adverse Effect with respect to
the Company and its Subsidiaries taken as a whole.
(8) No Undisclosed Liabilities. Except for (i) liabilities incurred in
connection with the Transactions and (ii) as and to the extent disclosed in the
SEC Reports or as set forth in Schedule 3(h), since July 31, 1997, neither the
Company nor any of its Subsidiaries has incurred any Liabilities of any nature
(whether accrued, absolute, contingent or otherwise) which could reasonably be
expected to be required to be reflected in or reserved against on a consolidated
balance sheet, or in the notes thereto, of the Company and its consolidated
Subsidiaries prepared in accordance with GAAP consistent with past practice.
(9) Brokers' Fees. Other than fees related to financial advisory services
performed for the Company to be paid to the Persons set forth on Schedule 3(i),
neither the Company nor any of its Subsidiaries has any Liability or obligation
to pay any fees or commissions to any broker, finder or agent with respect to
the Transactions. The Company has furnished to AAC true, correct and complete
copies of engagement letters relating to such services.
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<PAGE>
(10) Absence of Certain Changes. Except as disclosed in Schedule 3(j),
since July 31, 1997, the Company and its Subsidiaries have conducted their
business in the Ordinary Course of Business and there has not been:
(1) any event, occurrence or development of a state of facts which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(2) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of the Company, or
(other than (A) any retirement of, or issuance of Company Common Stock pursuant
to the exercise of Options to acquire Shares of Company Common Stock granted to
employees or directors or other Option holders, or (B) as contemplated pursuant
to this Agreement) any repurchase, redemption or other acquisition by the
Company or any Subsidiary thereof of any outstanding shares of capital stock or
other securities of, or other ownership interests in, the Company or any
Subsidiary thereof;
(3) any amendment of any material term of any outstanding equity
security of the Company or any Subsidiary thereof;
(4) any incurrence, assumption or guarantee by the Company or any
Subsidiary thereof of any indebtedness for borrowed money, other than in the
Ordinary Course of Business in amounts and on terms consistent with past
practices;
(5) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or any
Subsidiary thereof which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;
(6) any material change in any method of accounting or accounting
practice by the Company or any Subsidiary thereof which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect;
(1)
(7) any (A) grant of any severance or termination pay to any director,
officer or employee of the Company or any Subsidiary thereof, (B) entering into
of any employment, deferred compensation or other similar agreement (or any
amendment to any such existing agreement) with any director, officer or employee
of the Company or any Subsidiary thereof, (C) increase in benefits payable under
any existing severance or
20
<PAGE>
termination pay policies or employment agreements or (D) increase in
compensation, bonus or other benefits payable to directors, officers or
employees of the Company or any Subsidiary thereof; in each case, other than in
the Ordinary Course of Business; or
(8) any cancellation of any Permits or Contracts to which the Company
or any Subsidiary thereof is a party, or any written or oral notification to the
Company or any Subsidiary thereof that any party to any such arrangement intends
to cancel or not renew such arrangement beyond its expiration date as in effect
on the date hereof, which cancellation or notification, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(11) Litigation. Except as set forth on Schedule 3(k), there is no action,
suit or proceeding pending against, or, to the Knowledge of the Company or any
Subsidiary thereof, any action, suit, investigation or proceeding threatened
against or affecting, the Company or any Subsidiary thereof or any of their
respective properties before any Governmental or Regulatory Body, (i) which
could reasonably be expected to have a Material Adverse Effect or (ii) which in
any manner challenges or seeks to prevent, enjoin, alter or materially delay the
Merger or any of the other Transactions and has a reasonable likelihood of
success.
(12) Taxes. (i) The Company and each of its Subsidiaries have duly and
timely filed (taking into account any extension of time within which to file)
all material Tax Returns required to be filed by any of them and all such filed
Tax Returns are complete and accurate in all material respects; (ii) except as
set forth on Schedule 3(l), the Company and each of its Subsidiaries have paid
all Taxes required to be paid by it including Taxes that the Company and its
Subsidiaries are obligated to withhold from amounts owing to any employee,
creditor or Third Party, except with respect to matters contested in good faith
or for such amounts that, individually or in aggregate, could not reasonably be
expected to have a Material Adverse Effect; (iii) except as set forth on
Schedule 3(l), there are no pending or, to the Knowledge of the Company,
threatened in writing audits, examinations, investigations or other proceedings
in respect of Taxes or Tax matters relating to the Company or any of its
Subsidiaries which, if determined adversely to the Company or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse Effect;
(iv) there are no deficiencies or claims for any Taxes that have been proposed,
asserted or assessed against the Company or any of its Subsidiaries which, if
such deficiencies or claims were finally resolved against the Company or any of
its Subsidiaries, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; (v) there are no material Liens
for Taxes upon the assets of the Company or any of its Subsidiaries, other than
Liens for current
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<PAGE>
Taxes not yet due and payable and Liens for Taxes that are being contested in
good faith by appropriate proceedings; (vi) none of the Company or any of its
Subsidiaries has made an election under Section 341(f) of the Code; (vii) except
as set forth in Schedule 3(l), no extension of the statute of limitations on the
assessment of any Taxes has been granted by the Company or any of its
Subsidiaries and is currently in effect; (viii) except as set forth in Schedule
3(l), none of the Company or its Subsidiaries is a party to any agreement or
arrangement that could reasonably be expected to result, separately or in the
aggregate, in the actual or deemed payment by the Company or a Subsidiary of any
"excess parachute payments" within the meaning of Section 280 G or 162(m) of the
Code; (ix) none of the Company or its Subsidiaries has been a United States real
property holding corporation within the meaning of Section 897(c)(2) of the Code
during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code;
(x) all Taxes required to be withheld, collected or deposited by or with respect
to the Company and its Subsidiaries have been timely withheld, collected or
deposited, as the case may be, and, to the extent required, have been paid to
the relevant taxing authority, except, in each case, to the extent that failing
to so withhold, collect, deposit or pay would not have a Material Adverse
Effect; (xi) none of the Company or its Subsidiaries has issued or assumed (A)
any obligations described in Section 279(b) of the Code, (B) any applicable high
yield discount obligations, as defined in Section 163(i) of the Code, or (C) any
registration-required obligations, within the meaning of Section 163(f)(2) of
the Code, that are not in registered form; (xii) there are no requests for
information currently outstanding that could affect the Taxes of the Company and
its Subsidiaries; and (xiii) except as set forth on Schedule 3(l), there are no
proposed reassessments of any property owned by the Company or any of its
Subsidiaries or other proposals that could increase the amount of any Tax to
which the Company, its Subsidiaries or any such Person would be subject.
(13) Compliance with Laws. Except as set forth on Schedule 3(m), neither
the Company nor any Subsidiary thereof is in violation of, or has since July 31,
1997 violated, and, to the Knowledge of the Company or any Subsidiary thereof,
none of them is under investigation with respect to or has been threatened to be
charged with or given notice of any violation by any Governmental or Regulatory
Body of any applicable law, rule, regulation, judgment, injunction, order or
decree, except for violations that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(14) Permits. Except as set forth on Schedule 3(n) and except as could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (i) the Permits are valid and in full force and effect, (ii)
neither the Company nor
22
<PAGE>
any Subsidiary thereof is in default under, and no condition exists that with
notice or lapse of time or both would constitute a default under, the Permits
and (iii) none of the Permits will be terminated or impaired or become
terminable, in whole or in part, as a result of the Transactions. The Company
and each of its Subsidiaries have all Permits necessary to carry on its business
as currently conducted or as proposed to be conducted, except where the failure
to have any Permit would not have a Material Adverse Effect.
(15) Contracts. Schedule 3(o) sets forth a list of all material Contracts
to which the Company or any of its Subsidiaries is a party or by or to which it
or its assets are bound or subject, including, without limitation, (i) Contracts
relating to the borrowing of money; (ii) Contracts with any current Affiliate or
current or former officer or director of the Company or any Subsidiary thereof;
(iii) joint venture agreements between the Company or any of its Subsidiaries
and an unaffiliated third party; (iv) any Contracts providing for payments to or
from the Company or any Subsidiary thereof of $100,000 or more per year; (v) any
license agreements, distribution agreements, franchise agreements or agreements
in respect of similar rights granted to or held by the Company or any of its
Subsidiaries; (vi) any Contract that materially limits the freedom of the
Company or any Subsidiary thereof to compete in any line of business or with any
Person or in any geographical area or which would so materially limit the
freedom of the Company or any Subsidiary thereof so to compete after the
Effective Time; (vii) any other Contract not made in the Ordinary Course of
Business which Contract is material to the Company and its Subsidiaries taken as
a whole; (viii) any Tax sharing agreement or other arrangement or (ix) any
Lease. The Company has heretofore made available to AAC true and complete copies
of each of the Contracts set forth in Schedule 3(o). Except for Contracts that
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, all Contracts disclosed in Schedule 3(o) are valid and
binding Contracts of the Company or a Subsidiary thereof, are in full force and
effect (except for those that have terminated or will terminate by their own
terms), and neither the Company, any Subsidiary thereof nor, to the Knowledge of
the Company or any Subsidiary thereof, any other party thereto, is in default in
any material respect under the terms of any such Contract.
(16) Intellectual Property Rights. The Company or any Subsidiary thereof
has interests in or uses only the Intellectual Property disclosed in Schedule
3(p) in connection with the conduct of the business as currently conducted or as
proposed to be conducted. Except as set forth on Schedule 3(p), the Company or
any Subsidiary thereof either owns or has a valid and binding license to use
each item of Intellectual Property set forth on Schedule 3(p). No other
Intellectual Property is used or necessary in the conduct of the business as
currently conducted or as proposed to be conducted. Except as disclosed in
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<PAGE>
Schedule 3(p), (i) the Company or any Subsidiary thereof has the exclusive right
to use the Intellectual Property disclosed in Schedule 3(p), (ii) all
registrations with and applications to any Governmental or Regulatory Body in
respect of such Intellectual Property are valid and in full force and effect and
are not subject to the payment of any Taxes or maintenance fees or the taking of
any other actions by the Company or any Subsidiary thereof to maintain their
validity or effectiveness, (iii) there are no restrictions on the direct or
indirect transfer of any license, or any interest therein, held by the Company
or any Subsidiary thereof in respect of such Intellectual Property, (iv) the
Company or any Subsidiary thereof has delivered to AAC prior to the execution of
this Agreement documentation with respect to any invention, process, design,
computer program or other know-how or trade secret included in such Intellectual
Property, which documentation is accurate in all material respects and
reasonably sufficient in detail and content to identify and explain such
invention, process, design, computer program or other know-how or trade secret
and to facilitate its full and proper use without reliance on the special
knowledge or memory of any Person, (v) the Company or any Subsidiary thereof has
taken reasonable security measures to protect the secrecy, confidentiality and
value of its trade secrets in respect of the business, (vi) the Company or any
Subsidiary thereof is not, nor has it received any notice that it is, in default
(or with the giving of notice or lapse of time or both, would be in default)
under any license to use such Intellectual Property and (vii) the Company or any
Subsidiary thereof does not have any Knowledge that such Intellectual Property
is being infringed by any other Person. Except as set forth on Schedule 3(p),
the Company or any Subsidiary thereof has not received notice that the Company
or any Subsidiary thereof is infringing any Intellectual Property of any other
Person in connection with the conduct of the business as currently conducted or
as proposed to be conducted; no claim is pending or, to the Knowledge of the
Company or any Subsidiary thereof, has been made to such effect that has not
been resolved; and, to the Knowledge of the Company or any Subsidiary thereof,
the Company or any Subsidiary thereof is not infringing any Intellectual
Property rights of any other Person in connection with the conduct of the
business as currently conducted or as proposed to be conducted.
(17) Board Recommendation. The Board of Directors of the Company, at a
meeting duly called and held and acting on the unanimous recommendation of the
Board of Directors of the Company, has (i) determined that this Agreement and
the Transactions, including the Merger, are fair to, and in the best interests
of, the Company Stockholders, (ii) approved this Agreement and the Transactions,
including the Merger, which approval satisfies in full the requirements of the
DGCL including, without limitation, Section 203 thereof with respect to the
Transactions, and (iii) resolved to recommend approval and adoption of this
Agreement and the Merger by the Company
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<PAGE>
Stockholders. Furman Selz LLC has delivered to the Company's Board of Directors
its opinion that the consideration to be paid in the Merger is fair to the
holders of Shares of Company Common Stock from a financial point of view.
(18) ERISA. All Benefit Plans and Multiemployer Plans are listed in
Schedule 3(r), and copies of all documentation relating to such Benefit Plans
have been delivered to AAC (including copies of written Benefit Plans, written
descriptions of oral Benefit Plans, summary plan descriptions, trust agreements,
the three most recent annual returns, employee communications, and IRS
determination letters). Except as disclosed in Schedule 3(r):
(1) each Benefit Plan has at all times been maintained and
administered in all material respects in accordance with its terms and with the
requirements of all applicable law, including ERISA and the Code, and each
Benefit Plan intended to qualify under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be qualified under Section 401(a)
of the Code and nothing has occurred since the date of any such determination
which would adversely affect such qualification.
(2) no Benefit Plan is a "defined benefit plan" within the meaning of
Section 414(j) of the Code, other than a Benefit Plan described in Section
401(a)(1) of ERISA;
(3) no direct, contingent or secondary Liability has been incurred or
is expected to be incurred by the Company or any Subsidiary under Title IV of
ERISA with respect to any Benefit Plan or Multiemployer Plan, or with respect to
any other Plan presently or heretofore maintained or contributed to during the
five (5) year period prior to the Closing Date by any ERISA Affiliate;
(4) with respect to each Multiemployer Plan, (A) no withdrawal
liability (within the meaning of Section 4201(b) of ERISA) has been incurred by
the Company or any ERISA Affiliate, and the Company has no reason to believe
that any such withdrawal liability will be incurred, prior to the Closing Date,
(B) no such Multiemployer Plan is in "reorganization" (within the meaning of
Section 4241 of ERISA), (C) no notice has been received that increased
contributions may be required to avoid a reduction in plan benefits or the
imposition of an excise tax, or that the Multiemployer Plan is or may become
"insolvent" (within the meaning of Section 4241 of ERISA), (D) the Company or
any Subsidiary thereof has no Knowledge that proceedings have been instituted by
the Pension Benefit Guaranty Corporation against the Multiemployer Plan, (E)
neither the Company or any Subsidiary thereof has sold
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assets in a transaction intended to satisfy the requirements of Section 4204 of
ERISA, and (F) except as disclosed in Schedule 3(r), if the Company or any ERISA
Affiliate were to have a complete or partial withdrawal under Section 4203 of
ERISA as of the Closing, no withdrawal liability would exist on the part of the
Company or any ERISA Affiliate;
(5) neither the Company nor any ERISA Affiliate has incurred any
Liability for any tax imposed under Sections 4971 through 4980B of the Code or
civil Liability under Section 502(i) or (l) of ERISA;
(6) Except as set forth in Schedule 3(r), no benefit under any Benefit
Plan, including, without limitation, any severance or parachute payment plan or
agreement, will be established or become accelerated, vested or payable by
reason of any Transaction contemplated under this Agreement;
(7) no tax has been incurred under Section 511 of the Code with
respect to any Benefit Plan (or trust or other funding vehicle pursuant
thereto);
(8) no Benefit Plan provides health or death benefit coverage for
claims incurred beyond the termination of an employee's employment, except as
required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the
Code or any State laws requiring continuation of benefits coverage following
termination of employment;
(9) no suit, actions or other litigation (excluding claims for
benefits incurred in the ordinary course of Plan activities) have been brought
or, to the Knowledge of the Company, threatened against or with respect to any
Benefit Plan and there are no facts or circumstances known to the Company that
could reasonably be expected to give rise to any such suit, action or other
litigation; and
(1)
(10) all contributions to Benefit Plans and Multiemployer Plans that
were required to be made under such Plans have been made and each of the Company
and each Subsidiary has performed all material obligations required to be
performed under all such Plans.
(19) Labor and Employment Matters.
(1) Except as set forth on Schedule 3(s), (A) no employee of the
Company or any Subsidiary thereof is represented by a labor union, no labor
union has
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been certified or recognized as a representative of any such employee, and
neither the Company nor any Subsidiary thereof has any obligation under any
collective bargaining agreement or other agreement with any labor union or any
obligation to recognize or deal with any labor union, and there are no such
Contracts or other agreements pertaining to or which determine the terms or
conditions of employment of any employee of the Company or any Subsidiary
thereof; (B) there are no pending or threatened representation campaigns,
elections or proceedings; (C) the Company has no Knowledge of any strikes,
slowdowns or work stoppages of any kind, or threats thereof, and no such
activities occurred during the 24-month period preceding the date hereof; (D)
neither the Company nor any Subsidiary thereof has engaged in, admitted
committing or been held to have committed any unfair labor practice; and (E)
there are no controversies or grievances between the Company or any Subsidiary
thereof and any of its employees or representatives thereof.
(2) Schedule 3(s) sets forth all Contracts under which the Company or
any Subsidiary thereof has any obligation to provide compensation or
remuneration of any kind (other than obligations to make current wage or salary
payments that are terminable at will without notice) to or on behalf of any
employee or consultant.
(3) Except as set forth on Schedule 3(s), the Company and each of its
Subsidiaries have at all times complied in all material respects, and are in
material compliance with, all applicable laws, rules and regulations respecting
employment, wages, hours, compensation, benefits, and payment and withholding of
taxes in connection with employment.
(4) Except as could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, the Company and each of its
Subsidiaries have at all times since July 31, 1994 complied with, and are in
compliance with, all applicable laws, rules and regulations respecting
occupational health and safety, whether now existing or subsequently amended or
enacted, including, without limitation, the Occupational Safety & Health Act of
1970, 29 U.S.C. Section 651 et seq. and the state analogies thereto, all as
amended or superseded from time to time, and any common law doctrine relating to
worker health and safety.
(20) Real Estate.
(1) Neither the Company nor any of its Subsidiaries own any real
property.
(1)
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(2) Except as set forth on Schedule 3(t), neither the Company nor any
Subsidiary thereof has assigned, pledged or otherwise transferred or has sublet
(as sublessor) the premises demised by any Lease. The Company or a Subsidiary
thereof is in possession of the premises demised by the Leases. Except as set
forth on Schedule 3(t), no tenant or landlord under any Lease has exercised any
option or right to (A) cancel or terminate such Lease or shorten the term
thereof, (B) lease additional premises, (C) reduce or relocate the premises
demised by such Lease, or (D) purchase any property. All brokerage commissions
payable by the Company or any Subsidiary thereof with respect to any Lease have
been fully paid.
(21) Environmental Matters. To the Knowledge of the Company or any
Subsidiary thereof, the Company or any Subsidiary thereof has obtained and holds
all necessary Environmental Permits. To the Knowledge of the Company or any
Subsidiary thereof, the Company or any Subsidiary thereof is in material
compliance with all terms, conditions and provisions of all applicable
Environmental Permits and Environmental Laws. There are no past, pending or, to
the Knowledge of the Company or any Subsidiary thereof, threatened material
Environmental Claims against the Company or any Subsidiary thereof, and the
Company or any Subsidiary thereof is not aware of any facts or circumstances
which could reasonably be expected to form the basis for any such material
Environmental Claim against the Company or any Subsidiary thereof. To the
Knowledge of the Company or any Subsidiary thereof, except as set forth on
Schedule 3(u), no Releases of Hazardous Materials have occurred at, from, in,
to, on or under any Site and no Hazardous Materials are present in, on, about or
migrating to or from any Site that constitutes a violation of any Environmental
Law. Except as set forth on Schedule 3(u), neither the Company or any Subsidiary
thereof, any predecessor of the Company or any Subsidiary thereof, nor any
entity previously owned by the Company or any Subsidiary thereof, has
transported or arranged for the treatment, storage, handling, disposal, or
transportation of any Hazardous Material to any off-Site location which
constitutes a violation of any Environmental Law. To the Knowledge of the
Company, no Site is a current or proposed Environmental Clean-up Site. There are
no Liens arising under or pursuant to any Environmental Law on any Site and
there are no facts, circumstances or conditions that could reasonably be
expected to restrict, encumber or result in the imposition of special conditions
under any Environmental Law with respect to the ownership, occupancy,
development, use or transferability of any Site. To the Knowledge of the Company
or any Subsidiary thereof, except as set forth on Schedule 3(u), no Site
contains any underground storage tanks, active or abandoned, polychlorinated
biphenyl-containing equipment or asbestos-containing material. There have been
no environmental investigations, studies, audits, tests, reviews or other
analyses conducted by, on behalf of, or which are in the possession of the
Company or any
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Subsidiary thereof with respect to any Site which have not been delivered to AAC
or any of its representatives prior to execution of this Agreement.
(22) Other Interests. Except as set forth in Schedule 3(v), the Company or
any Subsidiary thereof does not own, directly or indirectly, any interest or
investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity (other than investments in short-term
investment securities).
(23) Certain Business Practices. Neither the Company nor any of its
Subsidiaries nor any of their respective directors, officers or employees or, to
the Knowledge of the Company or any Subsidiary thereof, agents or
representatives (in their capacity as directors, officers, agents,
representatives or employees) has: (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (ii) directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property, however characterized, to
any finder, agent, or other Person acting on behalf of or under the auspices of
a governmental official or Governmental or Regulatory Body, in the United States
or any other country, which is in any manner related to the business or
operations of the Company or any of its Subsidiaries, that was illegal under any
federal, state or local laws of the United States or any other country having
jurisdiction; or (iii) made any payment to any customer or supplier of the
Company or any of its Subsidiaries or any officer, director, partner, employee
or agent of any such customer or supplier for the unlawful sharing of fees or to
any such customer or supplier or any such officer, director, partner, employee
or agent for the unlawful rebating of charges, or engaged in any other unlawful
reciprocal practice, or made any other unlawful payment or given any other
unlawful consideration to any such customer or supplier or any such officer,
director, partner, employee or agent, in respect of the business of the Company
and its Subsidiaries.
(24) Insurance. Since July 31, 1992, the Company and its Subsidiaries have
obtained and maintained in full force and effect insurance with responsible and
reputable insurance companies or associations in such amounts, on such terms,
with such deductibles and covering such risks, including fire and other risks
insured against by extended coverage, as is customarily carried by reasonably
prudent Persons conducting businesses or owning assets similar to those of the
Company and its Subsidiaries, and each has maintained in full force and effect
liability insurance against claims for personal injury or death or property
damage occurring in connection with the activities of the Company and its
Subsidiaries or any properties owned, occupied or controlled by the Company or
any of its Subsidiaries in such amount as is customarily carried by reasonably
prudent Persons conducting businesses or owning assets similar to those of the
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<PAGE>
Company and its Subsidiaries. There is no material default with respect to any
provision contained in any such policy or binder, nor has the Company or any of
its Subsidiaries failed to give any material notice or to present any material
claim under any such policy or binders in due and timely fashion. There are no
billed but unpaid premiums past due under any such policy or binder, the failure
of which to be paid would result in the cancellation of such policy or binder.
Except as otherwise set forth in the SEC Reports or in Schedule 3(x), (i) there
are no outstanding claims in excess of normal retentions that are not covered
under any such policies or binders and, to the Knowledge of the Company, there
has not occurred any event that might reasonably form the basis of any claim in
excess of normal retentions that is not covered against or relating to the
Company or any of its Subsidiaries that is not covered by any of such policies
and binders; (ii) no notice of cancellation or non-renewal of any such policies
or binders has been received; and (iii) except as set forth in Schedule 3(x),
there are no performance bonds outstanding with respect to the Company or any of
its Subsidiaries.
(25) Disclosure Documents. The Definitive Proxy Materials to be filed with
the SEC and sent to the Company Stockholders in connection with the special
meeting of the Company Stockholders (the "Special Meeting"), as of the date
first mailed to the Company Stockholders and at the time of the Special Meeting,
and the Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all
amendments and supplements thereto, the "Schedule 13E-3") at the time filed with
the SEC, or at any time thereafter when the information therein is required to
be updated pursuant to applicable law, will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Joint Disclosure
Documents will, when filed by the Company with the SEC, comply as to form in all
material respects with the applicable provisions of the Securities Exchange Act
and the SEC rules and regulations promulgated thereunder. Notwithstanding the
foregoing, the Company makes no representation or warranty with respect to the
statements made in any of the foregoing documents based on written information
supplied by or on behalf of AAC or any of its respective Affiliates specifically
for inclusion therein.
(26) Customers and Suppliers. Since July 31, 1997, neither the Company nor
any of its Subsidiaries has received written notice that any customer or
supplier intends to cancel, terminate or otherwise modify any relationship with
the Company or any of its Subsidiaries, which constitutes a Material Adverse
Effect.
4. Representations and Warranties of AAC. AAC represents and warrants to
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<PAGE>
the Company, except as set forth in the disclosure schedule attached hereto:
(1) Organization. AAC is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation.
AAC is duly authorized to conduct business and is in good standing under the
laws of each jurisdiction where such qualification is required, except where the
lack of such qualification would not have a Material Adverse Effect or a
material adverse effect on the ability of the Parties to consummate the
Transactions. AAC has full corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it. AAC was formed solely for the purpose of engaging in the
Transactions, has engaged in no other business activities and has conducted its
operations only as contemplated hereby. AAC has not engaged, nor prior to the
Effective Time will it engage, in any business activities other than the
business activities contemplated hereby (including business activities
contemplated by or reasonably incident to the Debt Financing). AAC has conducted
and, prior to the Effective Time, will conduct its operations only as
contemplated hereby (including activities contemplated by or reasonably incident
to the Debt Financing). AAC has no Subsidiaries and, during the period
commencing with the date hereof and ending at the Effective Time, AAC will have
no Subsidiaries. AAC does not have, nor at the Effective Time will it have, any
Liabilities or material obligations not expressly contemplated pursuant to this
Agreement or the Transactions.
(2) Debt Financing.
(1) AAC has provided to the Company true and complete copies of a
letter, dated March 31, 1998, from J.P. Morgan Securities Inc. pursuant to which
it has indicated that it is highly confident of its ability to underwrite in the
public markets senior notes of the Company in an aggregate amount of at least
$100 million to provide, together with the equity financing referred to in
Section 4(b)(ii) and the Revolving Credit Facility, all of the financing
required in order to consummate the Transactions and to fund what AAC reasonably
believes to be the working capital needs of the Company and its Subsidiaries
following the Closing. The financing to be provided pursuant to the foregoing
arrangements is hereinafter referred to as the "Debt Financing." As of the date
hereof, the highly confident letter relating to the Debt Financing has not been
withdrawn and is in full force and effect.
(ii) AAC has delivered to the Company a true and complete copy
of a commitment letter, dated as of April 21, 1998, from 399 pursuant to which
399 (together with its Affiliates) will have available $13.12445 million,
subject to the terms and
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<PAGE>
conditions set forth therein, for purposes of consummating the Transactions (the
"Equity Financing Commitment"). As of the date hereof, such commitment letter
from 399 has not been withdrawn and is in full force and effect.
(3) Authorization of the Transactions. AAC has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by AAC, and the performance of its obligations hereunder,
have been duly authorized by all requisite corporate action, and this Agreement
has been duly executed and delivered by AAC. This Agreement constitutes the
valid and legally binding obligation of AAC, enforceable in accordance with its
terms and conditions.
(4) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the Transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any Governmental or
Regulatory Body to which AAC is subject or any provision of the certificate of
incorporation or bylaws of AAC or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any Party
the right to accelerate, terminate, modify or cancel, or require any notice or
consent under any Contract or other arrangement to which AAC is a party or by
which it is bound or to which any of its assets is subject, except where the
violation, conflict, breach, default, acceleration, termination, modification,
cancellation or failure to give notice would not have a Material Adverse Effect
or a material adverse effect on the ability of the Parties to consummate the
Transactions. Other than in connection with the provisions of the HSR Act, the
DGCL, the Securities Exchange Act, the Securities Act and the state securities
laws, AAC is not required to give any notice to, make any filing with, or obtain
any authorization, consent or approval of any Governmental or Regulatory Body in
order for the Parties to consummate the Transactions contemplated by this
Agreement, except where the failure to give notice, to file, or to obtain any
authorization, consent or approval would not have a material adverse effect on
the ability of the Parties to consummate the Transactions.
(5) Brokers' Fees. AAC has no Liability or other obligation to pay any fees
or commissions to any broker, finder or agent with respect to the Transactions
contemplated by this Agreement for which any of the Company or its Subsidiaries
thereof could become liable.
(6) Litigation. There is no action, suit or proceeding pending against, or,
to the knowledge of AAC, any action, suit, investigation or proceeding
threatened against or affecting, AAC or any of their respective properties
before any Governmental or
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Regulatory Body (i) which could reasonably be expected to have a Material
Adverse Effect or (ii) which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the Merger or any of the other Transactions
and has a reasonable likelihood of success.
(7) Disclosure Documents. The information supplied by AAC for inclusion in
the Definitive Proxy Materials to be filed with the SEC and sent to the Company
Stockholders in connection with the Special Meeting, as of the date first mailed
to the Company Stockholders and at the time of the Special Meeting, and the
Schedule 13E-3 at the time filed with the SEC, or at any time thereafter when
the information therein is required to be updated pursuant to applicable law,
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
5. Covenants. The Parties hereto hereby covenant as follows:
(1) Further Assurances. Each of the Company and AAC will use its reasonable
best efforts to take all action and to do all things necessary, proper or
advisable in order to consummate and make effective the Transactions
contemplated by this Agreement; provided, however, that no director or officer
of the Company shall be required either to violate any requirement imposed by
law in connection therewith or to take any action such director or officer
deems, after consultation with outside counsel, not consistent with such
director's or officer's fiduciary duty.
(2) Notices and Consents. The Company will, and will cause each of its
Subsidiaries to, give any notices to third parties, and will, and will cause
each of its Subsidiaries to, use its reasonable best efforts to obtain any
required third party consents, that AAC reasonably may request.
(3) Regulatory Matters and Approvals. Each of AAC and the Company will, and
will cause any of its respective Subsidiaries to, give any notices to, make any
filings with, and use its reasonable best efforts to obtain any necessary
authorizations, consents and approvals of any Governmental or Regulatory Body.
Without limiting the generality of the foregoing, each of AAC and the Company
will, and will cause any of its respective Subsidiaries to, (i) file any
notification and report forms and related material that it may be required to
file with the Federal Trade Commission and the Antitrust Division of the United
States Department of Justice under the HSR Act, (ii) use its best efforts to
obtain an early termination of the applicable waiting period and (iii) make any
further
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<PAGE>
filings pursuant thereto that may be necessary, proper, or advisable.
(4) Securities Act, Securities Exchange Act, and State Securities Laws.
(1) The Company will prepare and file with the SEC preliminary proxy
materials ("Preliminary Proxy Materials") under the Securities Exchange Act
relating to the Merger. The Company will use its best efforts to respond to the
comments of the SEC thereon and will make any further filings (including
amendments and supplements) in connection therewith that may be necessary,
proper or advisable. AAC will provide the Company with information and
assistance in connection with the foregoing filings that the Company may
reasonably request.
(2) The Company and AAC shall each use its reasonable best efforts to
take, or cause to be taken, (A) all actions necessary, proper or advisable by
such Party with respect to the prompt preparation and filing of the Joint
Disclosure Documents with the SEC, (B) such actions as may be required to have
the Joint Disclosure Documents declared effective under the Securities Act as
promptly as practicable, and (C) such actions as may be required to be taken
under state securities or applicable Blue Sky laws in connection with the
issuance of the securities contemplated hereby.
(3) As soon as practicable after the date of announcement of the
execution of this Agreement, the Company shall file with the SEC a Schedule
13E-3. AAC and the Company each agrees to correct any information provided by it
for use in the Schedule 13E-3, if and to the extent that it shall have become
false and misleading in any material respect.
(5) DGCL; Special Meeting. The Company will (i) call the Special Meeting as
soon as reasonably practicable in order that such stockholders may consider and
vote upon the adoption of this Agreement and the approval of the Merger in
accordance with the DGCL and (ii) mail the Joint Disclosure Documents to the
Company Stockholders as soon as reasonably practicable, which Joint Disclosure
Documents will contain the affirmative recommendation of the Board of Directors
of the Company in favor of the adoption of this Agreement and the approval of
the Merger; provided, however, that any provision of this Agreement to the
contrary notwithstanding, the Company will not have any obligation to call the
Special Meeting or mail the Joint Disclosure Documents to the Company
Stockholders if such action would require any director or officer of the Company
either to violate any requirement imposed by law in connection therewith or,
after consultation with and advice from its outside counsel, any director or
officer of the Company determines in good faith that to take such action would
be inconsistent with
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<PAGE>
such director's or officer's fiduciary duty.
(6) Accounting Treatment. Each Party hereto shall cooperate with the other
Party hereto in connection with the recording of the Merger as a
recapitalization for financial reporting purposes, including, without
limitation, providing appropriate disclosure with regard to such recording in
all filings with the SEC. In furtherance of the foregoing, the Company shall
provide AAC with a reasonable time period to review any description of the
Transactions filed with the SEC.
(7) Debt Financing.
(1) AAC shall use its reasonable best efforts to assist the Company in
obtaining the Debt Financing or other alternative financing on substantially
comparable or more favorable terms. The Company shall use its reasonable best
efforts to cooperate with AAC in the obtaining of the Debt Financing, including,
without limitation, by participating in road shows and meeting with, and
providing information to, potential sources of financing identified by AAC.
(ii) The Company shall use its reasonable best efforts to
obtain a revolving credit facility commitment from a lending institution
designated by AAC in the amount of approximately $25 million ("Revolving Credit
Facility").
(8) Operation of the Company's Business. The Company will not (and will not
cause or permit any of its Subsidiaries to) engage in any practice, take any
action or enter into any transaction outside the Ordinary Course of Business,
including, without limitation, the following:
(1) authorizing or effecting any change in its certificate of
incorporation or bylaws (other than as contemplated by this Agreement);
(2) granting any options, warrants, or other rights to purchase or
obtain any of its capital stock or issuing, selling or otherwise disposing of
any of its capital stock (except upon the conversion or exercise of Options and
other rights and obligations currently outstanding);
(3) declaring, setting aside, or paying any dividend or distribution
with respect to its capital stock (whether in cash or in kind), or redeeming,
repurchasing or otherwise acquiring any of its capital stock, in either case,
outside the Ordinary Course of Business;
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(4) except as set forth on Schedule 5(h), issuing any note, bond, or
other debt security or creating, incurring, assuming or guaranteeing any
indebtedness for borrowed money or capitalized lease obligation (except for
inter-company loans or advances from the Company to, or Guaranties on behalf of,
any one or more of its Subsidiaries), outside the Ordinary Course of Business;
(1)
(5) except as set forth on Schedule 5(h), imposing any Lien upon any
of its assets outside the Ordinary Course of Business;
(6) other than pursuant to the Transactions, making any material
change in employment terms for any of its directors, officers and employees
outside the Ordinary Course of Business;
(7) except pursuant to existing agreements or arrangements as of the
date hereof, making any capital investment in, making any loan to, or acquiring
the securities or assets of any other Person outside the Ordinary Course of
Business;
(8) adopting or amending any bonus, profit sharing, compensation,
severance, termination, stock option, pension, retirement, deferred
compensation, employment or employee Benefit Plan, agreement, trust, Plan, fund
or other arrangement for the benefit and welfare of any director, officer or
employee, except for normal increases in the Ordinary Course of Business and
that, in the aggregate, do not result in a material increase in benefits or
compensation expense to the Company or any Subsidiary thereof;
(9) revaluing in any material respect any significant portion of its
assets, including, without limitation, writing down the value of inventory in
any material amount or write-off of notes or accounts receivable in any material
amount;
(10) paying, discharging or satisfying any material Liabilities
(whether matured, unmatured, absolute, accrued, asserted or unassented,
contingent or otherwise) other than the payment, discharge or satisfaction in
the Ordinary Course of Business of Liabilities reflected or reserved against in
the consolidated financial statements of the Company and set forth in the SEC
Reports or incurred in the Ordinary Course of Business;
(11) making any Tax election with respect to or settling or
compromising any material income Tax Liability;
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(12) taking any action other than in the Ordinary Course of Business
with respect to accounting policies or procedures; and
(13) committing to any of the foregoing.
(9) Full Access. Subject to the terms and conditions of the Confidentiality
Agreement, the Company will, and will cause each of its Subsidiaries to, permit
representatives of AAC and its Affiliates to have full access at all reasonable
times, and in a manner so as not to interfere with the normal business
operations of the Company and its Subsidiaries, to all premises, properties,
personnel, books, records (including Tax records), contracts and documents of or
pertaining to each of the Company and its Subsidiaries.
(1)
(10) Notice of Developments. Each Party will give prompt written notice to
the other Party of any event which could reasonably be expected to give rise to
a Material Adverse Effect or could reasonably be expected to cause a breach of
any of its own respective representations, warranties, covenants or other
agreement contained herein. No disclosure by any Party pursuant to this Section
5(j), however, shall be deemed to amend or supplement any Schedule, or to
prevent or cure any misrepresentation, breach of warranty, or breach of
covenant.
(11) No Solicitation.
(1) The Company shall not, and shall not permit any of its
Subsidiaries to (whether directly or indirectly through advisors, agents or
other intermediaries), and the Company shall not, and shall not permit any of
its Subsidiaries to, authorize or knowingly permit any of its or their officers,
directors, agents, representatives, advisors or Subsidiaries (all of the
foregoing parties being referred to as the "Restricted Parties") to solicit,
initiate or knowingly encourage the submission of inquiries, proposals or offers
from any Third Party relating to (A) any acquisition of 5% or more of the
consolidated assets of the Company and its Subsidiaries or of over 5% of any
class of equity securities of the Company or any of its Subsidiaries, (B) any
tender offer (including a self tender offer) or exchange offer that if
consummated would result in any Third Party beneficially owning 5% or more of
any class of equity securities of the Company or any of its Subsidiaries, (C)
any merger, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving the Company or any of its
Subsidiaries whose assets, individually or in the aggregate, constitute more
than 5% of the consolidated assets of the Company, other than the Transactions
or (D) any other
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transaction the consummation of which would, or could reasonably be expected to,
impede, interfere with, prevent or materially delay the Merger or which would,
or could reasonably be expected to, materially dilute the benefits to AAC of the
Transactions (collectively, the "Acquisition Proposals" and which, if
consummated, will be an "Acquisition Transaction") or enter into or participate
in any discussions (except as may be necessary to inform a Third Party of the
provisions of this Section 5(k)) or negotiations regarding any of the foregoing,
or furnish to any Third Party any information with respect to the business,
properties or assets of the Company in connection with the foregoing, or
otherwise cooperate in any way with, or knowingly assist or participate in,
facilitate or encourage, any effort or attempt by any Third Party to do or seek
any of the foregoing; provided, however, that the provisions of this Section
5(k) shall not limit or prohibit any of the Restricted Parties from (x) engaging
in discussions or negotiations with such a Third Party who has made a Superior
Acquisition Proposal, but only if the Board of Directors of the Company, after
consultation with and advice from its outside counsel, determines in good faith
that, in the exercise of its fiduciary responsibilities, such discussions or
negotiations should be commenced or such information should be furnished or such
facilitation, cooperation, encouragement or participation undertaken; (y)
furnishing information pursuant to an appropriate and customary confidentiality
letter (which shall not be substantially less restrictive than the
Confidentiality Agreement) concerning the Company or any Subsidiary thereof and
its businesses, properties or assets to a Third Party who has made a Superior
Acquisition Proposal as to which a prior determination of the Board of Directors
of the Company as contemplated under clause (x) above has been made; provided,
further, that (1) the Board of Directors of the Company shall not, and shall not
authorize any officers or representatives to, take any of the foregoing actions
until notice to AAC of the Company's intent to take such action shall have been
given; and (2) if the Board of Directors of the Company receives a Superior
Acquisition Proposal, to the extent it may do so without breaching its fiduciary
duties as determined in good faith after consultation with its outside counsel,
and without violating any of the conditions of such Superior Acquisition
Proposal, then the Company shall promptly inform AAC of the material terms and
conditions of such proposal and the identity of the Third Party making it; or
(z) taking a position on a tender offer by a Third Party, as required by Rule
14e-2 under the Securities Exchange Act (provided no such position shall
constitute a recommendation of such transaction if it does not constitute a
Superior Acquisition Proposal) or complying with its duties of disclosure under
applicable state law. As of the date hereof, the Company shall immediately cease
and shall cause each of its Subsidiaries and its and their advisors, agents and
other intermediaries to cease, any and all existing activities, discussions or
negotiations with any Third Party conducted heretofore with respect to any of
the foregoing; provided that the limitation set forth in this sentence shall not
restrict the Company from engaging in any
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such activities with such a Third Party who hereafter makes a Superior
Acquisition Proposal so long as the Company has complied with the provisions of
this Section 5(k).
(2) If (A) this Agreement shall be terminated pursuant to Section
7(a)(iv), 7(a)(vi)(B) or (B)(1) a Third Party shall have made an Acquisition
Proposal, (2) the Agreement shall be terminated pursuant to Section 7(a)(ii),
Section 7(a)(vi)(A), 7(a)(vi)(C) and (3) any Acquisition Proposal (whether or
not proposed prior to the Special Meeting and whether or not it involves the
Third Party making the Acquisition Proposal referred to in Section
5(k)(ii)(B)(1) above) shall have been consummated within twelve months following
the termination of this Agreement, the Company shall pay to AAC, within ten (10)
Business Days following such occurrence, a fee of $3.375 million as liquidated
damages and not as a penalty together with reimbursement of all reasonable
out-of-pocket costs, fees and expenses, including, without limitation, the
reasonable fees and disbursements of banks, investment banks, accountants or
legal counsel and the expenses of any litigation incurred in connection with
collecting the fees and other amounts provided for in this Section 5(k)(ii),
which out-of-pocket costs, fees and expenses shall be no more than $1 million in
the aggregate (collectively, the "Fixed Amount"). Notwithstanding the foregoing,
if the Company breaches any representation, warranty, covenant or other
agreement hereunder, the Fixed Amount paid by Company and actually received by
AAC shall be credited against the amount of damages awarded to AAC as a result
of such breach and any damages awarded to AAC as a result of such breach shall
be credited against any subsequent payment of the Fixed Amount, to the extent
the Company is also obligated hereunder to pay the Fixed Amount.
(1)
(12) Insurance and Indemnification.
(1) For a period of 6 years after the Effective Time, the Surviving
Corporation shall indemnify and hold harmless the present and former officers
and directors of the Company and its Subsidiaries in respect of acts or
omissions occurring prior to the Effective Time to the maximum extent provided
under the Company's certificate of incorporation and bylaws, or any of its
Subsidiary's certificate of incorporation or bylaws, in either case, as in
effect on the date hereof; provided that such indemnification shall be subject
to any limitation imposed from time to time under applicable law.
(2) For a period of 6 years after the Effective Time, the Surviving
Corporation shall provide officers' and directors' liability insurance in
respect of acts or omissions occurring prior to the Effective Time covering each
such Person currently
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covered by the Company's or any of its Subsidiary's officers' and directors'
liability insurance policy on terms with respect to coverage and amount no less
favorable than those of such policy in effect on the date hereof (or, if such
insurance policy cannot be obtained, such insurance policy on terms with respect
to coverage and amount as favorable as can be obtained, subject to the proviso
at the conclusion of this sentence), provided that, in satisfying its obligation
under this Section, the Surviving Corporation shall not be obligated to pay
premiums in excess of 150% of the amount per annum the Company paid in its last
full fiscal year, which amount has been disclosed to AAC.
(13) Joint Disclosure Documents. The Company shall cause the Joint
Disclosure Documents to comply with the Securities Exchange Act in all material
respects. The Company shall cause the Joint Disclosure Documents to not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading, other than with
respect to information provided by or on behalf of AAC and its Affiliates. AAC
shall cause the Joint Disclosure Documents to not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements made therein, in the light of the circumstances under which they
will be made, not misleading, with respect to information provided by or on
behalf of AAC and its Affiliates.
(14) Comfort Letters. The Company will deliver to AAC on or before the date
the Joint Disclosure Documents are mailed to the Company Stockholders a letter
from its accountants, Grant Thornton LLP, stating its conclusions as to the
accuracy of certain information derived from the financial records from the
Company and its Subsidiaries and contained in the Joint Disclosure Document (the
"Company Comfort Letter"). The Company Comfort Letter shall be reasonably
satisfactory to AAC in form and substance.
(15) Options. Prior to the Effective Time, the Company shall take such
action as may be necessary to terminate the Company's Option Plan.
(16) Debt Financing Expense. Subject to any right to reimbursement pursuant
to Section 5(k)(ii) hereof, in the event the Transactions are not consummated,
399 and AAC shall, jointly and severally, be responsible for the payment of any
fee due to, or reimbursement of expenses incurred by, J. P. Morgan Securities,
Inc. and its affiliates or any other lender designated by AAC pursuant to the
Debt Financing, including, without limitation, the Revolving Credit Facility.
6. Conditions to Obligation to Close.
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(1) Conditions to Closing by AAC. The obligations of AAC to consummate the
Transactions are subject to satisfaction or waiver by AAC of the following
conditions:
(1) the representations and warranties set forth in Section 3 above
shall be true and correct in all respects at and as of the Effective Time,
except (A) for those representations and warranties which address matters only
as of a particular date (which shall have been true and correct as of such date,
subject to clause (B)), and (B) where the failure of any representations and
warranties set forth in Section 3, taken together without regard to any
materiality or Knowledge qualification set forth therein, to be true and correct
could not reasonably be expected to have a Material Adverse Effect, with the
same force and effect as if made on and as of the Effective Time;
(2) the Company shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(3) there shall not be any judgment, order, decree, stipulation,
injunction or charge in effect preventing consummation of any of the
Transactions;
(4) the Company shall have delivered to AAC a certificate to the
effect that each of the conditions specified above in Section 6(a)(i)-(iii) is
satisfied in all respects;
(5) this Agreement and the Merger shall have received the Requisite
Stockholder Approval;
(6) the holders of not more than 10% of the outstanding Shares of
Company Common Stock shall have demanded appraisal of such Shares in accordance
with the DGCL;
(7) the Company shall have delivered to AAC written consents to the
Transactions from the Persons who are parties to Contracts set forth on Schedule
6(a);
(8) all applicable waiting periods (and any extensions thereof) under
the HSR Act shall have expired or otherwise been terminated and the Parties
shall have received all other authorizations, consents and approvals of
Governmental or Regulatory Bodies in connection with the execution, delivery and
performance of this Agreement;
(1)
(9) AAC shall be reasonably satisfied that the Merger will be recorded
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as a recapitalization for financial reporting purposes;
(10) total Debt of the Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as of the Effective Time shall not
exceed $45 million;
(11) the Company shall have received the proceeds of the Debt
Financing and the amount to be drawn under the Revolving Credit Facility or
other proceeds on terms and conditions which are substantially equivalent
thereto;
(12) the Company shall have received and accepted the resignations of
all directors of the Company designated by AAC;
(13) each of the Voting Agreements and the Rollover Agreements shall
be in full force and effect;
(14) there shall not be instituted or pending any action or proceeding
by any Governmental or Regulatory Body, or any action or proceeding by any other
Person, that has a reasonable likelihood of success before any Governmental or
Regulatory Body, (A) challenging or seeking to make illegal, to delay materially
or otherwise directly or indirectly to restrain or prohibit the consummation of
the Merger or seeking to obtain material damages or otherwise directly or
indirectly relating to the Transactions, (B) seeking to restrain or prohibit the
ownership or operation by AAC of all or any material portion of the business or
assets of the Company and its Subsidiaries, taken as a whole, (C) seeking to
impose or confirm material limitations on the ability of AAC to effectively
control the business or operations of the Company and its Subsidiaries, taken as
a whole, or effectively to exercise full rights of ownership of the Shares of
Company Common Stock or (D) requiring divestiture by AAC of any Shares of
Company Common Stock, and no Governmental or Regulatory Body shall have issued
any judgment, order, decree or injunction, and there shall not be any statute,
rule or regulation, that, in the reasonable judgment of AAC is likely, directly
or indirectly, to result in any of the consequences referred to in the preceding
clauses (A) through (D); and
(15) the Warrants shall have been adjusted in accordance with the
terms of such Warrants, except for such Warrants that have expired in accordance
with their terms.
(16) AAC shall have received an opinion of Warshaw Burstein Cohen
Schlesinger & Kuh LLP, counsel to the Company, in the form of Exhibit E attached
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hereto.
(2) Conditions to Closing by the Company. The obligations of the Company to
consummate the Transactions are subject to satisfaction or waiver by the Company
of the following conditions:
(1)
(1) the representations and warranties set forth in Section 4 above
shall be true and correct in all respects at and as of the Effective Time,
except (A) for those representations and warranties which address matters only
as of a particular date (which shall have been true and correct as of such date,
subject to clause (B)), and (B) where the failure of any representations and
warranties set forth in Section 4 taken together without regard to any
materiality qualification set forth therein to be true and correct could not
reasonably be expected to have a Material Adverse Effect, with the same force
and effect as if made on and as of the Effective Time;
(2) AAC shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(3) there shall not be any judgment, order, decree, stipulation,
injunction or charge in effect preventing consummation of any of the
Transactions;
(4) AAC shall have delivered to the Company a certificate to the
effect that each of the conditions specified above in Section 6(b)(i)-(iii) is
satisfied in all respects;
(5) this Agreement and the Merger shall have received the Requisite
Stockholder Approval;
(6) all applicable waiting periods (and any extensions thereof) under
the HSR Act shall have expired or otherwise been terminated and the Parties
shall have received all other authorizations, consents and approvals of
Governmental or Regulatory Bodies in connection with the execution delivery and
performance of this Agreement;
(7) there shall not be instituted or pending any action or proceeding
by any Governmental or Regulatory Body, or any action or proceeding by any other
Person, that has a reasonable likelihood of success before any Governmental or
Regulatory Body, (A) challenging or seeking to make illegal, to delay materially
or otherwise directly or indirectly to restrain or prohibit the consummation of
the Merger or seeking to obtain
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material damages or otherwise directly or indirectly relating to the Transaction
or (B) seeking to impose liability on any officer or director of the Company for
any actions taken in connection with the Transactions, and no Governmental or
Regulatory Body shall have issued any judgment, order, decree or injunction, and
there shall not be any statute, rule or regulation, that, in the reasonable
judgement of the Company is likely, directly or indirectly, to result in any of
the consequences referred to in the preceding clauses (A) or (B);
(8) the Company shall have received an opinion of Furman Selz LLC as
to the fairness to the Company Stockholders of the cash merger consideration to
be received by them; and
(9) the Company shall have received an opinion of Houlihan Lokey
Howard & Zukin to the effect that consummation of the Transactions contemplated
hereby will not render the Company (i) "insolvent" as that term is defined in
Section 101(32) of the United States Bankruptcy Code (the "Bankruptcy Code"), or
Section 271 of the New York Debtor and Creditor Law (the "NYDCL") (ii) unable to
pay its debts as they mature, within the meaning of Section 548(a)(2)(B)(iii) of
the Bankruptcy Code or Section 275 of the NYDCL, or (iii) left with an
unreasonably small capital.
7. Termination.
(1) Termination of Agreement. The Parties hereto may terminate this
Agreement as follows:
(1) the Parties may terminate this Agreement by mutual written consent
at any time prior to the Effective Time;
(2) AAC may terminate this Agreement by giving written notice to the
Company at any time prior to the Effective Time (A) in the event the Company has
breached any material representation, warranty or covenant contained in this
Agreement when made or at any time prior to the Closing in any material respect,
AAC has notified the Company of the breach, and the breach has continued without
cure for a period of 30 days after the notice of breach, or (B) if the Closing
shall not have occurred on or before September 30, 1998, by reason of the
failure of any condition precedent under Section 6(a) hereof (unless the failure
results from a breach by AAC of any of its representations, warranties or
covenants or other agreements contained in this Agreement);
44
<PAGE>
(3) the Company may terminate this Agreement by giving written notice
to AAC at any time prior to the Effective Time (A) in the event AAC has breached
any material representation, warranty or covenant contained in this Agreement
when made or at any time prior to the Closing in any material respect, the
Company has notified AAC of the breach, and the breach has continued without
cure for a period of 30 days after the notice of breach, or (B) if the Closing
shall not have occurred on or before September 30, 1998, by reason of the
failure of any condition precedent under Section 6(b) hereof (unless the failure
results from a breach by the Company of any of its representations, warranties,
covenants or other agreements contained in this Agreement);
(4) the Company may terminate this Agreement by giving written notice
to AAC, at any time prior to the Effective Time, in the event that a Person has
made an Acquisition Proposal that the Board of Directors of the Company
determines, in good faith, and after consultation with and advice from its
financial advisors, is reasonably likely to be subject to completion and would,
if consummated, result in a transaction more favorable, from a financial point
of view, to the Company Stockholders than the Transactions contemplated by this
Agreement and the Merger (a "Superior Acquisition Proposal");
(1)
(5) either the Company or AAC may terminate this Agreement by giving
written notice to the other Party at any time after the Special Meeting in the
event this Agreement and the Merger fail to receive the Requisite Stockholder
Approval;
(6) AAC may terminate this Agreement by giving written notice to the
Company if (A) the Board of Directors of the Company shall have withdrawn or
modified or amended, in a manner adverse to AAC, either its approval or
recommendation of this Agreement and the Merger or its recommendation that the
Company Stockholders adopt and approve the Transactions contemplated by this
Agreement and the Merger, (B) the Board of Directors of the Company shall have
approved, recommended or endorsed any Superior Acquisition Proposal, or (C) if
the Company has failed to duly call the Special Meeting;
(7) either the Company or AAC may terminate this Agreement by giving
written notice to the other Party hereto if there shall be any law or regulation
that makes consummation of the Merger illegal or otherwise prohibited or if any
judgment, injunction, order or decree enjoining AAC or the Company from
consummating the Merger is entered and such judgment, injunction, order or
decree shall become final and nonappealable.
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<PAGE>
(2) Effect of Termination. If either Party terminates this Agreement
pursuant to Section 7(a) above, all rights and obligations hereunder shall
terminate; provided, however, that (i) this Section 7(b), Section 5(i), Section
5(k), Section 5(p), Section 8 and the Confidentiality Agreement shall survive
any such termination and (ii) nothing herein shall release any Party from
Liability for any breach hereof.
8. Miscellaneous.
(1) Press Releases and Public Announcement. Neither the Company nor AAC
shall issue any press release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of the other
Party; provided, however, that the Company or AAC may make any public disclosure
it believes in good faith is required by applicable law or any listing or
trading agreement concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise the other Party
prior to making the disclosure).
(2) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties hereto and their
respective successors and permitted assigns, other than Section 5(1) which shall
be for the benefit of the Persons set forth therein, which Person shall have the
independent right to enforce their rights under such Section.
(3) Entire Agreement. This Agreement (including the Exhibits and the
Schedules hereto and any attachments thereto) and the Confidentiality Agreement
constitute the entire agreement between the Parties hereto and supersede any
prior understandings, agreements or representations by or between the Parties
hereto, written or oral, to the extent they related in any way to the subject
matter hereof, including, without limitation, the Agreement, dated March 10,
1998, between the Company and CVC, as amended.
(4) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party hereto may assign either this Agreement or any
of its rights, interests or obligations hereunder without the prior written
approval of the other Party hereto.
(5) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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(6) General Interpretive Principles. For purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Agreement include the plural as well as
the singular, and the use of any gender herein shall be deemed to include the
other gender;
(2) accounting terms not otherwise defined herein have the meanings
given to them in accordance with GAAP;
(3) references herein to "articles," "sections," "Sections,"
"subsections" and other subdivisions without reference to a document are to
designated articles, sections, Sections, subsections and other subdivisions of
this Agreement;
(4) a reference to a subsection without further reference to a section
is a reference to such subsection as contained in the same section in which the
reference appears, and this rule shall also apply to paragraphs and other
subdivisions;
(5) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(6) the term "include" or "including" shall mean without limitation by
reason of enumeration;
(7) the headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement;
(8) any reference to any federal, state, local or foreign statute or
law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context otherwise requires; and
(9) the Parties have participated jointly in the negotiation and
drafting of this Agreement, and, in the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring either Party by virtue of the authorship of any of the
provisions of this Agreement.
(7) Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
(i) on
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the day of service if served personally on the party to whom notice is to be
given; (ii) on the day of transmission if sent via facsimile transmission to the
facsimile number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission, provided that a copy shall be sent
via certified mail, return receipt requested, simultaneously with any such
facsimile; (iii) on the business day after delivery to Federal Express or
similar overnight courier or the Express Mail service maintained by the United
States Postal Service; or (iv) on the fifth day after mailing, if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid and properly addressed, to the party as follows:
If to the Company: Allied Digital Technologies Corp.
140 Fell Court
Hauppauge, New York 11788
Facsimile: (516) 232-5370
Attention: George Fishman
Copy to: Warshaw Burstein Cohen Schlesinger & Kuh LLP
555 Fifth Avenue
New York, New York 10017
Facsimile: (212) 972-9150
Attention: Frederick R. Cummings, Jr., Esq.
If to AAC: Analog Acquisition Corp.
c/o 399 Venture Partners Inc.
399 Park Avenue
New York, New York 10043
Facsimile: (212) 888-2940
Attention: Richard M. Cashin, Jr.
Copies to: 399 Venture Partners Inc.
399 Park Avenue
New York, New York 10043
Facsimile: (212) 888-2940
Attention: Richard M. Cashin, Jr.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178-0060
Facsimile: (212) 309-6273
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Attention: Philip H. Werner, Esq.
Any Party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(8) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of New York,
except to the extent that the DGCL applies as a result of the Company being
incorporated in the State of Delaware, in which case the DGCL shall apply.
(9) Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS AND FOR ANY COUNTERCLAIM RELATING THERETO.
(10) Amendments and Waivers. The Parties may mutually amend any provision
of this Agreement at any time prior to the Effective Time with the prior
authorization of their respective Boards of Directors; provided, however, that
any amendment effected subsequent to stockholder approval will be subject to the
restrictions contained in the DGCL. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by both
Parties hereto. No waiver by either Party hereto of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights arising by virtue of any prior or subsequent such
occurrence. No waiver shall be valid unless the same shall be in writing and
signed by both Parties.
(11) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction; provided, however, that if the
invalidity of any covenant, agreement or provision shall deprive any Party of
the economic benefit intended to be conferred by this Agreement, the Parties
shall negotiate in good faith to amend the Agreement in a manner so that the
economic effect of the Agreement, as amended, is as nearly as possible the same
as the economic effect of this Agreement.
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(12) Expenses. Other than as expressly set forth herein, each of the
Parties will bear its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the Transactions, whether or not
the Merger is consummated.
(13) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(14) Transfer Taxes. Any Liability arising out of any real property
transfer taxes, if applicable, and due with respect to the Merger, shall be
borne by the Surviving Corporation and expressly shall not be a Liability of the
Company Stockholders.
(15) Limited Recourse. Notwithstanding anything in this Agreement, the
Voting Agreements or the Rollover Agreements to the contrary (except as
otherwise expressly provided in the Voting Agreements or the Rollover
Agreements, as the case may be), (i) the obligations and Liabilities of the
Parties hereunder and the parties thereunder shall be without recourse to any
stockholder of such Party or any of such stockholder's Affiliates (other than
the Parties), or any of their respective directors, employees, officers,
representatives or agents (in each case, in their capacity as such) and shall be
limited to the assets of such Party and (ii) the stockholders of AAC have made
no (and shall not be deemed to have made any) representations, warranties or
covenants (express or implied) under or in connection with this Agreement, the
Voting Agreements or the Rollover Agreements.
(16) Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each Party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, other than Section 5(1) which shall be for the benefit of the Persons
set forth therein, which Person shall have the independent right to enforce
their rights under such Section.
(17) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
(18) Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or
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interpretation of this Agreement.
(19) Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
(1)
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
ALLIED DIGITAL TECHNOLOGIES CORP.
By: /s/ George N. Fishman
---------------------------------------
George N. Fishman
Chief Executive Officer and Co-Chairman
ANALOG ACQUISITION CORP.
By: /s/ Ian D. Highet
---------------------------------------
Ian D. Highet
Vice President
<PAGE>
EXHIBIT B
STOCKHOLDER VOTING AGREEMENT
AGREEMENT, dated as of May 4, 1998, by and between Analog Acquisition
Corp., a Delaware corporation ("Purchaser"), and the other party signatory
hereto (the "Stockholder"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger, dated the date
hereof, by and between Purchaser and ABC (the "Company") (as such agreement may
be amended from time to time, the "Merger Agreement").
WHEREAS, concurrently herewith, Purchaser and the Company are entering
into a Merger Agreement, pursuant to which Purchaser will be merged with and
into the Company (the "Merger"), whereby each share of common stock, par value
$.01 per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive cash, other than any shares to remain outstanding pursuant to Section
2(g)(iii) of the Merger Agreement and any Dissenting Shares as defined in
Section 2(i) of the Merger Agreement.
WHEREAS, as a condition to Purchaser's entering into the Merger
Agreement, Purchaser requires that the Stockholder enter into, and the
Stockholder has agreed to enter into, this Agreement with Purchaser.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
Section 1. Certain Definitions. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"Acquisition Proposal" shall mean any agreement, letter of intent,
proposal or offer (other than the transactions contemplated in the Merger
Agreement) involving the Company or any of its Subsidiaries for, or an inquiry
or indication of interest that reasonably could be expected to lead to: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
dissolution, liquidation, business combination, or other similar transaction
with the Company or any of its Subsidiaries, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of a material portion of the
assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Company or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933, as amended, in
<PAGE>
connection therewith, but shall not include the Merger Agreement.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, Controlled by, or under common Control with
such Person, provided that no security holder of the Company shall be deemed an
Affiliate of any other security holder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of stock,
as a trustee or executor, by contract or credit arrangement or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"Business Days" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings or, in the case of determining a date when any payment is due, any day
other than a day on which banks in New York, New York are required or authorized
to be closed.
"Company" has the meaning ascribed thereto in the recitals of this
Agreement.
"Company Common Stock" has the meaning ascribed thereto in the recitals
of this Agreement.
"Control" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly or as a trustee or
executor, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of stock, as a trustee or
executor, by contract or credit arrangement or otherwise.
"Existing Shares" has the meaning ascribed thereto in Section 2(a)(i).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
<PAGE>
"Merger" has the meaning ascribed thereto in the recitals of this
Agreement.
"Permitted Transferee" means in the case of any Stockholder, (a) a
spouse or lineal descendent (including by adoption and stepchildren), heir,
executor, testamentary trustee or legatee of the Stockholder or (b) any trust or
estate the beneficiaries of which, or any corporation, limited liability company
or partnership, the stockholders, members or partners of which include only the
Persons described in clause (a) above.
"Person" means an individual, corporation, partnership, limited
liability company, limited partnership, association, trust, unincorporated
organization or other entity or group (as defined in Section 13(d)(3) of the
Exchange Act).
"Purchaser" has the meaning ascribed thereto in the introductory
paragraph of this Agreement.
"Shares" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by the Stockholder in any
capacity after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase, exchange or
otherwise; provided, however, that in the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
"Stockholder" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"Termination Date" has the meaning ascribed thereto in Section 9 of
this Agreement.
"Trustee" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Purchaser as follows:
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<PAGE>
(a) (i) The Stockholder is either (A) the record holder or
beneficial owner of the number of, or (B) trustee of a trust
that is the record holder or beneficial owner of, and whose
beneficiaries are the beneficial owners (such trustee, a
"Trustee"), shares of Company Common Stock and Options as is
set forth opposite the Stockholder's name on Schedule I hereto
(the "Existing Shares").
(ii) On the date hereof, the Existing Shares set
forth opposite the Stockholder's name on Schedule I hereto
constitute all of the outstanding shares of Company Common
Stock owned of record or beneficially by the Stockholder. The
Stockholder does not have record or beneficial ownership of
any Shares not set forth on Schedule I hereto.
(iii) The Stockholder has sole power of disposition
with respect to all of the Existing Shares set forth opposite
the Stockholder's name on Schedule I and sole voting power
with respect to the matters set forth in Section 4 hereof and
sole power to demand dissenter's or appraisal rights, in each
case with respect to all of the Existing Shares set forth
opposite the Stockholder's name on Schedule I, with no
restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
(iv) The Stockholder will have sole power of
disposition with respect to Shares other than Existing Shares,
if any, which become beneficially owned by the Stockholder and
will have sole voting power with respect to the matters set
forth in Section 4 hereof and sole power to demand dissenter's
or appraisal rights, in each case with respect to all Shares
other than Existing Shares, if any, which become beneficially
owned by the Stockholder with no restrictions on such rights,
subject to applicable federal securities laws and the terms of
this Agreement.
(b) The Stockholder has the legal capacity, power and
authority to enter into and perform all of the Stockholder's
obligations under this Agreement. Other than as set forth in Schedule
2(b), the execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the
Stockholder is a party or by which the Stockholder is bound including,
without limitation, any trust agreement, voting agreement, stockholders
agreement, voting trust, partnership or other agreement. This Agreement
has been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms,
except as limited by (a) bankruptcy, insolvency,
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<PAGE>
reorganization, moratorium or other similar laws relating to creditor's
rights generally, (b) general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law, and
to the discretion of the court before which any proceeding therefore
may be brought, or (c) public policy considerations or court decisions
which may limit the rights of the parties thereto for indemnification.
All necessary consents of any beneficiary of or holder of interest in
any trust of which a Stockholder is Trustee to the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been obtained. If the Stockholder is married
and the Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person in accordance with its terms.
(c) (i) No filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and
the consummation by the Stockholder of the transactions contemplated
hereby and (ii) neither the execution and delivery of this Agreement by
the Stockholder nor the consummation by the Stockholder of the
transactions contemplated hereby nor compliance by the Stockholder with
any of the provisions hereof shall (x) conflict with or result in any
breach of any applicable trust, partnership agreement or other
agreements or organizational documents applicable to the Stockholder,
(y) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's properties or assets may be
bound or (z) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
(d) Except for the shares of Company Common Stock identified
in Schedule II hereto (the "Pledged Shares"), the Stockholder's Shares
and the certificates representing such Shares are now and at all times
during the term hereof will be held by the Stockholder, or by a nominee
or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder.
5
<PAGE>
(e) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder in his or her capacity as such.
(f) The Stockholder understands and acknowledges that
Purchaser is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement with Purchaser.
Section 3. Representations and Warranties of the Purchaser. Purchaser
hereby represents and warrants to the Stockholder as follows:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation.
(b) Purchaser has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly and validly authorized
and approved by all required corporate action other than shareholder
approval which shall be effected prior to the Effective Time. This
Agreement has been duly executed and delivered by Purchaser, and
(assuming due authorization, execution and delivery by the Stockholder)
constitutes a valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except as limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor's rights generally, (b) general principles of
equity, whether such enforceability is considered in a proceeding in
equity or at law, and to the discretion of the court before which any
proceeding therefor may be brought, or (c) public policy considerations
or court decisions which may limit the rights of the parties thereto
for indemnification.
(c) The execution and delivery of this Agreement do not, and
the consummation by Purchaser of the transactions contemplated by this
Agreement and compliance by Purchaser with the provisions of this
Agreement will not, conflict with, or result in any breach or violation
of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or
acceleration of or "put" right with respect to any obligation or to
loss of a material benefit under, or result in the creation of any lien
upon any of the properties or assets of Purchaser under, (i) any
charter or by-laws of
6
<PAGE>
Purchaser, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Purchaser or its properties or
assets or (iii) any judgment, order, decree, statute, law, ordinance,
rule, regulation or arbitration award applicable to Purchaser or its
properties or assets. No consent, approval, order or authorization of,
or registration, declaration or filing with, or notice to, any state or
federal public body or authority is required by or with respect to
Purchaser in connection with the execution and delivery of this
Agreement by Purchaser or the consummation by Purchaser of any of the
transactions contemplated by this Agreement.
(d) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Purchaser.
Section 4. Agreement to Vote; Proxy
(a) The Stockholder hereby agrees that, until the Termination
Date (as defined in Section 9), at any meeting of the stockholders of
the Company, however called, or in connection with any written consent
of the stockholders of the Company, the Stockholder shall vote (or
cause to be voted) the Shares held of record or beneficially by the
Stockholder (i) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would
result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement
or this Agreement; and (iii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement or
any such actions identified in writing by Purchaser in advance): (A)
any extraordinary corporate transaction, including, without limitation,
a merger, consolidation or other business combination involving the
Company or its Subsidiaries; (B) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the
Company or its Subsidiaries; (C) any change in the majority of the
board of directors of the Company; (D) any material change in the
present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-Laws; (E) any other material change
in the Company's corporate structure or business; or (F) any other
action which is intended, or could reasonably be expected, to impede,
interfere with, delay,
7
<PAGE>
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement or this Agreement.
The Stockholder shall not enter into any agreement or understanding
with any person or entity to vote or give instructions in any manner
inconsistent with clauses (i) or (ii) of the preceding sentence.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PURCHASER
AND ANY DESIGNEE OF PURCHASER, EACH OF THEM INDIVIDUALLY, THE
STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES
AS SET FORTH IN SECTION 4(a) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY
TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY
AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH
RESPECT TO THE STOCKHOLDER'S SHARES.
Section 5. Certain Covenants of the Stockholder. Except in accordance
with the terms of this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Stockholder shall, in
its capacity as such, directly or indirectly (including through
advisors, agents or other intermediaries), solicit (including by way of
furnishing information) or respond to any inquiries or the making of
any proposal by any person or entity (other than Purchaser or any
Affiliate thereof) with respect to the Company that constitutes or
could reasonably be expected to lead to an Acquisition Proposal. If the
Stockholder in its capacity as such receives any such inquiry or
proposal, then the Stockholder shall within 24 hours furnish Purchaser
with an accurate description of the material terms (including any
changes or adjustments to such terms as a result of negotiations or
otherwise) and conditions, if any, of such inquiry or proposal and the
identity of the person making it. The Stockholder, in its capacity as
such, will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing; provided, that the
limitation set forth in this sentence shall not restrict the
Stockholder from engaging in any such activities with such a third
party who hereafter makes a Superior Acquisition Proposal. The
foregoing provisions of this Section 5(a) shall not restrict a
Stockholder who is also a director of the Company from taking any
actions, or refraining from complying with the foregoing provision, in
the Stockholder's capacity as a director, provided
8
<PAGE>
that any such actions do not violate Section 5(k) of the Merger
Agreement.
(b) Prior to the Termination Date, the Stockholder shall not,
directly or indirectly (i) except pursuant to the terms of the Merger
Agreement or this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, enforce or permit the
execution of the provisions of any redemption agreement with the
Company or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition
of, or exercise any discretionary powers to distribute, any or all of
the Stockholder's Shares or any interest therein, including any trust
income or principal, except in each case to a Permitted Transferee who
is or agrees to become bound by this Agreement; (ii) except as
contemplated hereby, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing the
Stockholder's obligations under this Agreement.
(c) The Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that the Stockholder may have. The
Trustee represents that no beneficiary who is a beneficial owner of
Shares under any trust has any right of appraisal or right to dissent
from the Merger which has not been so waived.
(d) Unless, in connection therewith, the Shares held by any
trust which are presently subject to the terms of this Agreement are
transferred to the Stockholder and remain subject in all respects to
the terms of this Agreement, or other Permitted Transferees who upon
receipt of such Shares become signatories to this Agreement, the
Stockholder who is a Trustee shall not take any action to terminate,
close or liquidate any such trust and shall take all steps necessary to
maintain the existence thereof at least until the first to occur of (i)
the Effective Time and (ii) the Termination Date.
Section 6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
9
<PAGE>
Section 7. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and shall
be binding upon any person or entity to which legal or Beneficial Ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation the Stockholder's heirs, guardians, administrators or
successors or as a result of any divorce.
Section 8. Stop Transfer. The Stockholder agrees with, and covenants
to, Purchaser that the Stockholder shall not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of the Stockholder's Shares, unless such transfer is
made in compliance with this Agreement.
Section 9. Termination. The obligations of the Stockholder and the
irrevocable proxy contained in Section 4(b) of this Agreement shall terminate
upon the first to occur of (a) the Effective Time and (b) the date the Merger
Agreement is terminated in accordance with its terms (the "Termination Date");
provided that the provisions of Sections 2, 3, 9 and 10 and any claim for breach
of any representation, warranty, covenant or other agreement under this
Agreement shall survive the Effective Time and/or the Termination Date, as
applicable.
Section 10. Miscellaneous.
(a) Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed to have been duly given (i) on the day of service if served
personally on the party to whom notice is to be given; (ii) on the day
of transmission if sent via facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission, provided that a copy shall
be sent via certified mail, return receipt requested, simultaneously
with any such facsimile; (iii) on the business day after delivery to
Federal Express or similar overnight courier or the Express Mail
service maintained by the United States Postal Service; or (iv) on the
fifth day after mailing, if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid
and properly addressed, to the party as follows:
If to the Stockholder George Fishman
35 Frost Creek Drive
Locust Valley, New York 11560
Telecopier: (516)
10
<PAGE>
If to Purchaser: Analog Acquisition Corp.
c/o 399 Venture Partners Inc.
399 Park Avenue
14th Floor, Zone 4
New York, NY 10043
Attn: Richard M. Cashin, Jr.
Telecopier: 212-888-2940
and: Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attn: Philip H. Werner, Esq.
Telecopier: 212-309-6273
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(b) At any time prior to the Effective Time, any party hereto
may, with respect to any other party hereto, (i) extend the time for
the performance of any of the obligations or other acts, (ii) waive any
inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto or (iii) waive compliance
with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
(c) The headings contained in this Agreement are for the
convenience of reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(d) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by the
Merger Agreement is not affected in any manner adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable
manner.
(e) This Agreement, including all exhibits, disclosure
schedules and
11
<PAGE>
schedules hereto, constitutes the entire agreement and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and
except as otherwise expressly provided herein.
(f) Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party (whether by
operation of law or otherwise) without the prior written consent of the
other parties hereto. Subject to the preceding sentence, this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, and no other
Person shall have any right, benefit or obligation under this Agreement
as a third party beneficiary or otherwise.
(g) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto shall be entitled to
specific performance of the terms hereof, this being in addition to any
other remedy to which they are entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed
to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or
her fiduciary duties as a director of the Company. The Stockholder has
executed this Agreement solely in his or her capacity as the record or
beneficial holder of the Stockholder's Shares or as the trustee of a
trust whose beneficiaries are the beneficial owners of the
Stockholder's Shares.
(j) Each party agrees to bear its own expenses in connection
with the transactions contemplated hereby.
(k) This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving
effect to any choice of law
12
<PAGE>
or conflict of law provision or rule that would cause the application
of the laws of any jurisdiction other than the State of New York,
except to the extent that the General Corporation Law of the State of
Delaware applies as a result of the Company being incorporated in the
State of Delaware, in which case such General Corporation Law shall
apply.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
(m) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
[Signature Page to Follow]
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ANALOG ACQUISITION CORP.
By: /s/ Ian D. Highet
------------------------
Ian D. Highet
Vice President
/s/ George Fishman
-----------------------
George Fishman
<PAGE>
SCHEDULE I
EXISTING SHARES
Stockholder No. of Existing Shares No. of Option Shares
- ----------- ---------------------- --------------------
George Fishman 899,022 0
<PAGE>
SCHEDULE II
PLEDGED SHARES
Stockholder Shares No. of Pledged Shares
- ------------------ ---------------------
George Fishman 0
<PAGE>
EXHIBIT C
STOCKHOLDER VOTING AGREEMENT
AGREEMENT, dated as of May 5, 1998, by and between Analog Acquisition
Corp., a Delaware corporation ("Purchaser"), and the other parties signatory
hereto (the "Stockholder"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger, dated the date
hereof, by and between Purchaser and ABC (the "Company") (as such agreement may
be amended from time to time, the "Merger Agreement").
WHEREAS, concurrently herewith, Purchaser and the Company are entering
into a Merger Agreement, pursuant to which Purchaser will be merged with and
into the Company (the "Merger"), whereby each share of common stock, par value
$.01 per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive cash, other than any shares to remain outstanding pursuant to Section
2(g)(iii) of the Merger Agreement and any Dissenting Shares as defined in
Section 2(i) of the Merger Agreement.
WHEREAS, as a condition to Purchaser's entering into the Merger
Agreement, Purchaser requires that the Stockholder enter into, and the
Stockholder has agreed to enter into, this Agreement with Purchaser.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
Section 1. Certain Definitions. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"Acquisition Proposal" shall mean any agreement, letter of intent,
proposal or offer (other than the transactions contemplated in the Merger
Agreement) involving the Company or any of its Subsidiaries for, or an inquiry
or indication of interest that reasonably could be expected to lead to: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
dissolution, liquidation, business combination, or other similar transaction
with the Company or any of its Subsidiaries, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of a material portion of the
assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Company or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933, as amended, in
<PAGE>
connection therewith, but shall not include the Merger Agreement.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, Controlled by, or under common Control with
such Person, provided that no security holder of the Company shall be deemed an
Affiliate of any other security holder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of stock,
as a trustee or executor, by contract or credit arrangement or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"Business Days" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings or, in the case of determining a date when any payment is due, any day
other than a day on which banks in New York, New York are required or authorized
to be closed.
"Company" has the meaning ascribed thereto in the recitals of this
Agreement.
"Company Common Stock" has the meaning ascribed thereto in the recitals
of this Agreement.
"Control" (including the terms "Controlled by" and "under common
Control with") means the possession, directly or indirectly or as a trustee or
executor, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of stock, as a trustee or
executor, by contract or credit arrangement or otherwise.
"Existing Shares" has the meaning ascribed thereto in Section 2(a)(i).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
<PAGE>
"Merger" has the meaning ascribed thereto in the recitals of this
Agreement.
"Permitted Transferee" means in the case of any Stockholder, (a) a
spouse or lineal descendent (including by adoption and stepchildren), heir,
executor, testamentary trustee or legatee of the Stockholder or (b) any trust or
estate the beneficiaries of which, or any corporation, limited liability company
or partnership, the stockholders, members or partners of which include only the
Persons described in clause (a) above.
"Person" means an individual, corporation, partnership, limited
liability company, limited partnership, association, trust, unincorporated
organization or other entity or group (as defined in Section 13(d)(3) of the
Exchange Act).
"Purchaser" has the meaning ascribed thereto in the introductory
paragraph of this Agreement.
"Shares" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by the Stockholder in any
capacity after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase, exchange or
otherwise; provided, however, that in the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
"Stockholder" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"Termination Date" has the meaning ascribed thereto in Section 9 of
this Agreement.
"Trustee" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Purchaser as follows:
3
<PAGE>
(a) (i) The Stockholder is either (A) the record holder or
beneficial owner of the number of, or (B) trustee of a trust
that is the record holder or beneficial owner of, and whose
beneficiaries are the beneficial owners (such trustee, a
"Trustee"), shares of Company Common Stock and Options as is
set forth opposite the Stockholder's name on Schedule I hereto
(the "Existing Shares").
(ii) On the date hereof, the Existing Shares set forth
opposite the Stockholder's name on Schedule I hereto
constitute all of the outstanding shares of Company Common
Stock owned of record or beneficially by the Stockholder. The
Stockholder does not have record or beneficial ownership of
any Shares not set forth on Schedule I hereto.
(iii) The Stockholder has sole power of disposition with
respect to all of the Existing Shares set forth opposite the
Stockholder's name on Schedule I and sole voting power with
respect to the matters set forth in Section 4 hereof and sole
power to demand dissenter's or appraisal rights, in each case
with respect to all of the Existing Shares set forth opposite
the Stockholder's name on Schedule I, with no restrictions on
such rights, subject to applicable federal securities laws and
the terms of this Agreement.
(iv) The Stockholder will have sole power of disposition
with respect to Shares other than Existing Shares, if any,
which become beneficially owned by the Stockholder and will
have sole voting power with respect to the matters set forth
in Section 4 hereof and sole power to demand dissenter's or
appraisal rights, in each case with respect to all Shares
other than Existing Shares, if any, which become beneficially
owned by the Stockholder with no restrictions on such rights,
subject to applicable federal securities laws and the terms of
this Agreement.
(b) The Stockholder has the legal capacity, power and
authority to enter into and perform all of the Stockholder's
obligations under this Agreement. Other than as set forth in Schedule
2(b), the execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the
Stockholder is a party or by which the Stockholder is bound including,
without limitation, any trust agreement, voting agreement, stockholders
agreement, voting trust, partnership or other agreement. This Agreement
has been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms,
except as limited by (a) bankruptcy, insolvency,
4
<PAGE>
reorganization, moratorium or other similar laws relating to creditor's
rights generally, (b) general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law, and
to the discretion of the court before which any proceeding therefore
may be brought, or (c) public policy considerations or court decisions
which may limit the rights of the parties thereto for indemnification.
All necessary consents of any beneficiary of or holder of interest in
any trust of which a Stockholder is Trustee to the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been obtained. If the Stockholder is married
and the Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person in accordance with its terms.
(c) (i) No filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and
the consummation by the Stockholder of the transactions contemplated
hereby and (ii) neither the execution and delivery of this Agreement by
the Stockholder nor the consummation by the Stockholder of the
transactions contemplated hereby nor compliance by the Stockholder with
any of the provisions hereof shall (x) conflict with or result in any
breach of any applicable trust, partnership agreement or other
agreements or organizational documents applicable to the Stockholder,
(y) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's properties or assets may be
bound or (z) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
(d) Except for the shares of Company Common Stock identified
in Schedule II hereto (the "Pledged Shares"), the Stockholder's Shares
and the certificates representing such Shares are now and at all times
during the term hereof will be held by the Stockholder, or by a nominee
or custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising
hereunder.
5
<PAGE>
(e) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder in his or her capacity as such.
(f) The Stockholder understands and acknowledges that
Purchaser is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement with Purchaser.
Section 3. Representations and Warranties of the Purchaser. Purchaser
hereby represents and warrants to the Stockholder as follows:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation.
(b) Purchaser has all necessary power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly and validly authorized
and approved by all required corporate action other than shareholder
approval which shall be effected prior to the Effective Time. This
Agreement has been duly executed and delivered by Purchaser, and
(assuming due authorization, execution and delivery by the Stockholder)
constitutes a valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms, except as limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor's rights generally, (b) general principles of
equity, whether such enforceability is considered in a proceeding in
equity or at law, and to the discretion of the court before which any
proceeding therefor may be brought, or (c) public policy considerations
or court decisions which may limit the rights of the parties thereto
for indemnification.
(c) The execution and delivery of this Agreement do not, and
the consummation by Purchaser of the transactions contemplated by this
Agreement and compliance by Purchaser with the provisions of this
Agreement will not, conflict with, or result in any breach or violation
of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or
acceleration of or "put" right with respect to any obligation or to
loss of a material benefit under, or result in the creation of any lien
upon any of the properties or assets of Purchaser under, (i) any
charter or by-laws of
6
<PAGE>
Purchaser, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Purchaser or its properties or
assets or (iii) any judgment, order, decree, statute, law, ordinance,
rule, regulation or arbitration award applicable to Purchaser or its
properties or assets. No consent, approval, order or authorization of,
or registration, declaration or filing with, or notice to, any state or
federal public body or authority is required by or with respect to
Purchaser in connection with the execution and delivery of this
Agreement by Purchaser or the consummation by Purchaser of any of the
transactions contemplated by this Agreement.
(d) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Purchaser.
Section 4. Agreement to Vote; Proxy
(a) The Stockholder hereby agrees that, until the Termination
Date (as defined in Section 9), at any meeting of the stockholders of
the Company, however called, or in connection with any written consent
of the stockholders of the Company, the Stockholder shall vote (or
cause to be voted) the Shares held of record or beneficially by the
Stockholder (i) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would
result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement
or this Agreement; and (iii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement or
any such actions identified in writing by Purchaser in advance): (A)
any extraordinary corporate transaction, including, without limitation,
a merger, consolidation or other business combination involving the
Company or its Subsidiaries; (B) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the
Company or its Subsidiaries; (C) any change in the majority of the
board of directors of the Company; (D) any material change in the
present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-Laws; (E) any other material change
in the Company's corporate structure or business; or (F) any other
action which is intended, or could reasonably be expected, to impede,
interfere with, delay,
7
<PAGE>
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement or this Agreement.
The Stockholder shall not enter into any agreement or understanding
with any person or entity to vote or give instructions in any manner
inconsistent with clauses (i) or (ii) of the preceding sentence.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PURCHASER
AND ANY DESIGNEE OF PURCHASER, EACH OF THEM INDIVIDUALLY, THE
STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES
AS SET FORTH IN SECTION 4(a) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY
TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY
AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH
RESPECT TO THE STOCKHOLDER'S SHARES.
Section 5. Certain Covenants of the Stockholder. Except in accordance
with the terms of this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Stockholder shall, in
its capacity as such, directly or indirectly (including through
advisors, agents or other intermediaries), solicit (including by way of
furnishing information) or respond to any inquiries or the making of
any proposal by any person or entity (other than Purchaser or any
Affiliate thereof) with respect to the Company that constitutes or
could reasonably be expected to lead to an Acquisition Proposal. If the
Stockholder in its capacity as such receives any such inquiry or
proposal, then the Stockholder shall within 24 hours furnish Purchaser
with an accurate description of the material terms (including any
changes or adjustments to such terms as a result of negotiations or
otherwise) and conditions, if any, of such inquiry or proposal and the
identity of the person making it. The Stockholder, in its capacity as
such, will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing; provided, that the
limitation set forth in this sentence shall not restrict the
Stockholder from engaging in any such activities with such a third
party who hereafter makes a Superior Acquisition Proposal. The
foregoing provisions of this Section 5(a) shall not restrict a
Stockholder who is also a director of the Company from taking any
actions, or refraining from complying with the foregoing provision, in
the Stockholder's capacity as a director, provided
8
<PAGE>
that any such actions do not violate Section 5(k) of the Merger
Agreement.
(b) Prior to the Termination Date, the Stockholder shall not,
directly or indirectly (i) except pursuant to the terms of the Merger
Agreement or this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, enforce or permit the
execution of the provisions of any redemption agreement with the
Company or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition
of, or exercise any discretionary powers to distribute, any or all of
the Stockholder's Shares or any interest therein, including any trust
income or principal, except in each case to a Permitted Transferee who
is or agrees to become bound by this Agreement; (ii) except as
contemplated hereby, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing the
Stockholder's obligations under this Agreement.
(c) The Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that the Stockholder may have. The
Trustee represents that no beneficiary who is a beneficial owner of
Shares under any trust has any right of appraisal or right to dissent
from the Merger which has not been so waived.
(d) Unless, in connection therewith, the Shares held by any
trust which are presently subject to the terms of this Agreement are
transferred to the Stockholder and remain subject in all respects to
the terms of this Agreement, or other Permitted Transferees who upon
receipt of such Shares become signatories to this Agreement, the
Stockholder who is a Trustee shall not take any action to terminate,
close or liquidate any such trust and shall take all steps necessary to
maintain the existence thereof at least until the first to occur of (i)
the Effective Time and (ii) the Termination Date.
Section 6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
9
<PAGE>
Section 7. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and shall
be binding upon any person or entity to which legal or Beneficial Ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation the Stockholder's heirs, guardians, administrators or
successors or as a result of any divorce.
Section 8. Stop Transfer. The Stockholder agrees with, and covenants
to, Purchaser that the Stockholder shall not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of the Stockholder's Shares, unless such transfer is
made in compliance with this Agreement.
Section 9. Termination. The obligations of the Stockholder and the
irrevocable proxy contained in Section 4(b) of this Agreement shall terminate
upon the first to occur of (a) the Effective Time and (b) the date the Merger
Agreement is terminated in accordance with its terms (the "Termination Date");
provided that the provisions of Sections 2, 3, 9 and 10 and any claim for breach
of any representation, warranty, covenant or other agreement under this
Agreement shall survive the Effective Time and/or the Termination Date, as
applicable.
Section 10. Miscellaneous.
(a) Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed to have been duly given (i) on the day of service if served
personally on the party to whom notice is to be given; (ii) on the day
of transmission if sent via facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission, provided that a copy shall
be sent via certified mail, return receipt requested, simultaneously
with any such facsimile; (iii) on the business day after delivery to
Federal Express or similar overnight courier or the Express Mail
service maintained by the United States Postal Service; or (iv) on the
fifth day after mailing, if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid
and properly addressed, to the party as follows:
If to the Stockholder: William H. Smith
Scenic Road
3rd House South of 10th Street
Carmel, CA 93921
Facsimile No.: (408) 626-8630
10
<PAGE>
If to Purchaser: Analog Acquisition Corp.
c/o 399 Venture Partners Inc.
399 Park Avenue
14th Floor, Zone 4
New York, NY 10043
Attn: Richard M. Cashin, Jr.
Telecopier: 212-888-2940
and: Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attn: Philip H. Werner, Esq.
Telecopier: 212-309-6273
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(b) At any time prior to the Effective Time, any party hereto
may, with respect to any other party hereto, (i) extend the time for
the performance of any of the obligations or other acts, (ii) waive any
inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto or (iii) waive compliance
with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
(c) The headings contained in this Agreement are for the
convenience of reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(d) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by the
Merger Agreement is not affected in any manner adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable
manner.
(e) This Agreement, including all exhibits, disclosure
schedules and
11
<PAGE>
schedules hereto, constitutes the entire agreement and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and
except as otherwise expressly provided herein.
(f) Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party (whether by
operation of law or otherwise) without the prior written consent of the
other parties hereto. Subject to the preceding sentence, this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, and no other
Person shall have any right, benefit or obligation under this Agreement
as a third party beneficiary or otherwise.
(g) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto shall be entitled to
specific performance of the terms hereof, this being in addition to any
other remedy to which they are entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed
to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or
her fiduciary duties as a director of the Company. The Stockholder has
executed this Agreement solely in his or her capacity as the record or
beneficial holder of the Stockholder's Shares or as the trustee of a
trust whose beneficiaries are the beneficial owners of the
Stockholder's Shares.
(j) Each party agrees to bear its own expenses in connection
with the transactions contemplated hereby.
(k) This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving
effect to any choice of law
12
<PAGE>
or conflict of law provision or rule that would cause the application
of the laws of any jurisdiction other than the State of New York,
except to the extent that the General Corporation Law of the State of
Delaware applies as a result of the Company being incorporated in the
State of Delaware, in which case such General Corporation Law shall
apply.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
(m) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
[Signature Pages to Follow]
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ANALOG ACQUISITION CORP.
By: /s/ Ian D. Highet
----------------------------
Ian D Highet
Vice President
/s/ William H. Smith
--------------------------------
William H. Smith
/s/ Patricia H. Smith
--------------------------------
Patricia M. Smith
William H. Smith Trust
By: /s/ William H. Smith
----------------------------
William H. Smith
Trustee
Patricia M. Smith Trust
By: /s/ William H. Smith
-----------------------------
William H. Smith
Trustee
/s/ William H. Jacob
--------------------------------
William L. Jacob
/s/ Laura L. Jacob
--------------------------------
Laura L. Jacob
<PAGE>
/s/ R. Thomas Jacob
--------------------------------
R. Thomas Jacob
/s/ Barbara S. Jacob
--------------------------------
Barbara S. Jacob
/s/ William L. Jacob
--------------------------------
William L. Jacob,
as Custodian for Garth W. Jacob
/s/ William L. Jacob
--------------------------------
William H. Jacob
/s/ William L. Jacob
--------------------------------
William L. Jacob,
as Custodian for Veronika L. Jacob
/s/ Paul Kubitskey
--------------------------------
Paul Kubitskey
/s/ Wendy Kubitskey
--------------------------------
Wendy Kubitskey,
as Custodian for Emily Kubitskey
/s/ Wendy Kubitskey
--------------------------------
Wendy Kubitskey,
as Custodian for Kaitlyn Kubitskey
/s/ Scott D. Smith
---------------------------------
Scott D. Smith
<PAGE>
/s/ Scott D. Smith
---------------------------------
Scott D. Smith,
as Custodian for Brittany F. Davies
/s/ Kendall A. Smith
---------------------------------
Kendall A. Smith
/s/ Kathryn Smith
---------------------------------
Kathryn Smith
/s/ Kendall A. Smith
---------------------------------
Kendall A. Smith,
as Custodian for Melena Smith
/s/ Wendy Kubitskey
---------------------------------
Wendy Kubitskey
/s/ Werner H. Jean
---------------------------------
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Emily Morell Kubitskey
<PAGE>
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of William H. Smith and
Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Kaitlyn Hunt Kubitskey
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust dated
April 2, 1998 for
Melena Renee Smith
/s/ Werner H. Jean
----------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Brittany Frances Davies
William H. and Patricia M. Smith
Foundation
By: /s/ William H. Smith
------------------------------
William H. Smith
President
<PAGE>
SCHEDULE I
EXISTING SHARES
<TABLE>
<CAPTION>
No. of Existing No. of Option
Stockholder Shares Shares
----------- ------ ------
<S> <C> <C>
William H. Smith
William H. Smith Trust
Patricia M. Smith
Patricia M. Smith Trust
William L. Jacob
Barbara S. Jacob
Laura L. Jacob
William H. Jacob
R. Thomas Jacob
William L. Jacob,
as Custodian for Garth W. Jacob
William L. Jacob,
as Custodian for Veronika L.
Jacob
Paul Kubitskey
Wendy Kubitskey,
as Custodian for Emily Kubitskey
Wendy Kubitskey,
as Custodian for Kaitlyn
Kubitskey
Scott D. Smith
Scott D. Smith,
as Custodian for Brittany F.
Davies
</TABLE>
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
No. of Existing No. of Option
Stockholder Shares Shares
----------- ------ ------
<S> <C> <C>
Kendall A. Smith
Kathryn Smith
Kendall A. Smith,
as Custodian for Melena Smith
Wendy Kubitskey
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Emily Morell Kubitskey
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Kaitlyn Hunt Kubitskey
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Melena Renee Smith
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Brittany Frances Davies
</TABLE>
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
No. of Existing No. of Option
Stockholder Shares Shares
----------- ------ ------
<S> <C> <C>
William H. and Patricia M. Smith
Foundation
TOTAL 6,264,427 0
================ ===============
</TABLE>
<PAGE>
SCHEDULE II
PLEDGED SHARES
No. of Pledged
Stockholder Shares
----------- ------
William H. Smith
William H. Smith Trust
Patricia M. Smith Trust
William L. Jacob
Barbara S. Jacob
Laura L. Jacob
William H. Jacob
R. Thomas Jacob
William L. Jacob,
as Custodian for Garth W. Jacob
William L. Jacob,
as Custodian for Veronika L.
Jacob
Paul Kubitskey
Wendy Kubitskey,
as Custodian for Emily Kubitskey
Wendy Kubitskey,
as Custodian for Kaitlyn
Kubitskey
Scott D. Smith
<PAGE>
SCHEDULE II
No. of Pledged
Stockholder Shares
----------- ------
Scott D. Smith,
as Custodian for Brittany F.
Davies
Kendall A. Smith
Kathryn Smith
Kendall A. Smith,
as Custodian for Melena Smith
Wendy Kubitskey
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Emily Morell Kubitskey
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Kaitlyn Hunt Kubitskey
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Melena Renee Smith
<PAGE>
SCHEDULE II
No. of Pledged
Stockholder Shares
----------- ------
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Brittany Frances Davies
William H. and Patricia M. Smith
Foundation
TOTAL 0
=============
<PAGE>
EXHIBIT D
STOCKHOLDER VOTING AND ROLLOVER AGREEMENT
AGREEMENT, dated as of May 5, 1998, by and between Analog Acquisition
Corp., a Delaware corporation ("Purchaser"), and the other parties signatory
hereto (the "Stockholder"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger, dated the date
hereof, by and between Purchaser and ABC (the "Company") (as such agreement may
be amended from time to time, the "Merger Agreement").
WHEREAS, concurrently herewith, Purchaser and the Company are entering
into a Merger Agreement, pursuant to which Purchaser will be merged with and
into the Company (the "Merger"), whereby each share of common stock, par value
$.01 per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive cash, other than any shares to remain outstanding pursuant to Section
2(g)(iii) of the Merger Agreement and any Dissenting Shares as defined in
Section 2(i) of the Merger Agreement.
WHEREAS, as a condition to Purchaser's entering into the Merger
Agreement, Purchaser requires that the Stockholder enter into, and the
Stockholder has agreed to enter into, this Agreement with Purchaser.
NOW, THEREFORE, in order to implement the foregoing and in consideration
of the mutual agreements contained herein, the parties hereby agree as follows:
Section 1. Certain Definitions. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"Acquisition Proposal" shall mean any agreement, letter of intent,
proposal or offer (other than the transactions contemplated in the Merger
Agreement) involving the Company or any of its Subsidiaries for, or an inquiry
or indication of interest that reasonably could be expected to lead to: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
dissolution, liquidation, business combination, or other similar transaction
with the Company or any of its Subsidiaries, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of a material portion of the
assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of
<PAGE>
the outstanding shares of capital stock of the Company or any of its
Subsidiaries or the filing of a registration statement under the Securities Act
of 1933, as amended, in connection therewith, but shall not include the Merger
Agreement.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, Controlled by, or under common Control with such
Person, provided that no security holder of the Company shall be deemed an
Affiliate of any other security holder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of stock,
as a trustee or executor, by contract or credit arrangement or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"Business Days" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings or, in the case of determining a date when any payment is due, any day
other than a day on which banks in New York, New York are required or authorized
to be closed.
"Company" has the meaning ascribed thereto in the recitals of this
Agreement.
"Company Common Stock" has the meaning ascribed thereto in the recitals
of this Agreement.
"Control" (including the terms "Controlled by" and "under common Control
with") means the possession, directly or indirectly or as a trustee or executor,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of stock, as a trustee or executor, by
contract or credit arrangement or otherwise.
"Existing Shares" has the meaning ascribed thereto in Section 2(a)(i).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended.
"Merger" has the meaning ascribed thereto in the recitals of this
Agreement.
2
<PAGE>
"Permitted Transferee" means in the case of any Stockholder, (a) a spouse
or lineal descendent (including by adoption and stepchildren), heir, executor,
testamentary trustee or legatee of the Stockholder or (b) any trust or estate
the beneficiaries of which, or any corporation, limited liability company or
partnership, the stockholders, members or partners of which include only the
Persons described in clause (a) above.
"Person" means an individual, corporation, partnership, limited liability
company, limited partnership, association, trust, unincorporated organization or
other entity or group (as defined in Section 13(d)(3) of the Exchange Act).
"Purchaser" has the meaning ascribed thereto in the introductory
paragraph of this Agreement.
"Shares" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by the Stockholder in any
capacity after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase, exchange or
otherwise; provided, however, that in the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
"Stockholder" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"Termination Date" has the meaning ascribed thereto in Section 10 of this
Agreement.
"Trustee" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Purchaser as follows:
(a) (i) The Stockholder is either (A) the record holder or beneficial
owner of the number of, or (B) trustee of a trust that is the record
holder or beneficial owner of, and whose beneficiaries are the
beneficial owners (such trustee, a
3
<PAGE>
"Trustee"), shares of Company Common Stock and Options as is set forth
opposite the Stockholder's name on Schedule I hereto (the "Existing
Shares").
(ii) On the date hereof, the Existing Shares set forth
opposite the Stockholder's name on Schedule I hereto constitute all of
the outstanding shares of Company Common Stock owned of record or
beneficially by the Stockholder. The Stockholder does not have record
or beneficial ownership of any Shares not set forth on Schedule I
hereto.
(iii) The Stockholder has sole power of disposition with
respect to all of the Existing Shares set forth opposite the
Stockholder's name on Schedule I and sole voting power with respect to
the matters set forth in Section 4 hereof and sole power to demand
dissenter's or appraisal rights, in each case with respect to all of
the Existing Shares set forth opposite the Stockholder's name on
Schedule I, with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
(iv) The Stockholder will have sole power of disposition with
respect to Shares other than Existing Shares, if any, which become
beneficially owned by the Stockholder and will have sole voting power
with respect to the matters set forth in Section 4 hereof and sole
power to demand dissenter's or appraisal rights, in each case with
respect to all Shares other than Existing Shares, if any, which become
beneficially owned by the Stockholder with no restrictions on such
rights, subject to applicable federal securities laws and the terms of
this Agreement.
(b) The Stockholder has the legal capacity, power and authority to
enter into and perform all of the Stockholder's obligations under this
Agreement. Other than as set forth in Schedule 2(b), the execution,
delivery and performance of this Agreement by the Stockholder will not
violate any other agreement to which the Stockholder is a party or by
which the Stockholder is bound including, without limitation, any trust
agreement, voting agreement, stockholders agreement, voting trust,
partnership or other agreement. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and
binding agreement of the Stockholder, enforceable against the Stockholder
in accordance with its terms, except as limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditor's rights generally, (b) general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law,
and to the discretion of the court before which any proceeding therefore
may be brought, or (c) public policy considerations or court decisions
which may limit the rights of the parties thereto for indemnification.
All necessary consents of any beneficiary of or holder of interest in any
trust of which a Stockholder is Trustee to the execution and delivery of
this Agreement and the
4
<PAGE>
consummation of the transactions contemplated hereby have been obtained.
If the Stockholder is married and the Stockholder's Shares constitute
community property, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Stockholder's spouse, enforceable against such person in accordance with
its terms.
(c) (i) No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary
for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby
and (ii) neither the execution and delivery of this Agreement by the
Stockholder nor the consummation by the Stockholder of the transactions
contemplated hereby nor compliance by the Stockholder with any of the
provisions hereof shall (x) conflict with or result in any breach of any
applicable trust, partnership agreement or other agreements or
organizational documents applicable to the Stockholder, (y) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets may be bound or (z) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or
assets.
(d) Except for the shares of Company Common Stock identified in
Schedule II hereto (the "Pledged Shares"), the Stockholder's Shares and
the certificates representing such Shares are now and at all times during
the term hereof will be held by the Stockholder, or by a nominee or
custodian for the benefit of the Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
(e) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Stockholder in his or
her capacity as such.
(f) The Stockholder understands and acknowledges that Purchaser is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement with Purchaser.
5
<PAGE>
Section 3. Representations and Warranties of the Purchaser. Purchaser
hereby represents and warrants to the Stockholder as follows:
(a) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation.
(b) Purchaser has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions
contemplated hereby have been duly and validly authorized and approved by
all required corporate action other than shareholder approval which shall
be effected prior to the Effective Time. This Agreement has been duly
executed and delivered by Purchaser, and (assuming due authorization,
execution and delivery by the Stockholder) constitutes a valid and
binding obligation of Purchaser, enforceable against it in accordance
with its terms, except as limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditor's
rights generally, (b) general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law, and to
the discretion of the court before which any proceeding therefor may be
brought, or (c) public policy considerations or court decisions which may
limit the rights of the parties thereto for indemnification.
(c) The execution and delivery of this Agreement do not, and the
consummation by Purchaser of the transactions contemplated by this
Agreement and compliance by Purchaser with the provisions of this
Agreement will not, conflict with, or result in any breach or violation
of, or default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation or acceleration of
or "put" right with respect to any obligation or to loss of a material
benefit under, or result in the creation of any lien upon any of the
properties or assets of Purchaser under, (i) any charter or by-laws of
Purchaser, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Purchaser or its properties or assets
or (iii) any judgment, order, decree, statute, law, ordinance, rule,
regulation or arbitration award applicable to Purchaser or its properties
or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any state or
federal public body or authority is required by or with respect to
Purchaser in connection with the execution and delivery of this Agreement
by Purchaser or the consummation by Purchaser of any of the transactions
contemplated by this Agreement.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Purchaser.
6
<PAGE>
Section 4. Agreement to Vote; Proxy
(a) The Stockholder hereby agrees that, until the Termination Date (as
defined in Section 10), at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of the
stockholders of the Company, the Stockholder shall vote (or cause to be
voted) the Shares held of record or beneficially by the Stockholder (i)
in favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance hereof and thereof; (ii) against any
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or this Agreement; and (iii) against
the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement or any such actions identified in
writing by Purchaser in advance): (A) any extraordinary corporate
transaction, including, without limitation, a merger, consolidation or
other business combination involving the Company or its Subsidiaries; (B)
a sale, lease or transfer of a material amount of assets of the Company
or its Subsidiaries or a reorganization, recapitalization, dissolution or
liquidation of the Company or its Subsidiaries; (C) any change in the
majority of the board of directors of the Company; (D) any material
change in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation or By-Laws; (E) any other
material change in the Company's corporate structure or business; or (F)
any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or materially
adversely affect the Merger or the transactions contemplated by the
Merger Agreement or this Agreement. The Stockholder shall not enter into
any agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with clauses (i) or (ii) of the
preceding sentence.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PURCHASER AND ANY
DESIGNEE OF PURCHASER, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS SET FORTH IN SECTION
4(a) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL
THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE STOCKHOLDER'S
SHARES.
7
<PAGE>
Section 5. Certain Covenants of the Stockholder. Except in accordance
with the terms of this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Stockholder shall, in its
capacity as such, directly or indirectly (including through advisors,
agents or other intermediaries), solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by
any person or entity (other than Purchaser or any Affiliate thereof) with
respect to the Company that constitutes or could reasonably be expected
to lead to an Acquisition Proposal. If the Stockholder in its capacity as
such receives any such inquiry or proposal, then the Stockholder shall
within 24 hours furnish Purchaser with an accurate description of the
material terms (including any changes or adjustments to such terms as a
result of negotiations or otherwise) and conditions, if any, of such
inquiry or proposal and the identity of the person making it. The
Stockholder, in its capacity as such, will immediately cease and cause to
be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing;
provided, that the limitation set forth in this sentence shall not
restrict the Stockholder from engaging in any such activities with such a
third party who hereafter makes a Superior Acquisition Proposal. The
foregoing provisions of this Section 5(a) shall not restrict a
Stockholder who is also a director of the Company from taking any
actions, or refraining from complying with the foregoing provision, in
the Stockholder's capacity as a director, provided that any such actions
do not violate Section 5(k) of the Merger Agreement.
(b) Prior to the Termination Date, the Stockholder shall not, directly
or indirectly (i) except pursuant to the terms of the Merger Agreement or
this Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, enforce or permit the execution of the
provisions of any redemption agreement with the Company or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, or exercise any
discretionary powers to distribute, any or all of the Stockholder's
Shares or any interest therein, including any trust income or principal,
except in each case to a Permitted Transferee who is or agrees to become
bound by this Agreement; (ii) except as contemplated hereby, grant any
proxies or powers of attorney with respect to any Shares, deposit any
Shares into a voting trust or enter into a voting agreement with respect
to any Shares; or (iii) take any action that would make any
representation or warranty of the Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling the Stockholder
from performing the Stockholder's obligations under this Agreement.
8
<PAGE>
(c) The Stockholder hereby waives any rights of appraisal or rights to
dissent from the Merger that the Stockholder may have. The Trustee
represents that no beneficiary who is a beneficial owner of Shares under
any trust has any right of appraisal or right to dissent from the Merger
which has not been so waived.
(d) (i) Subject to the terms and provisions of the Merger Agreement, in
connection with the Merger, the Stockholder hereby agrees to retain an
aggregate of 26,250 shares of Surviving Corporation Class A Common Stock
held by and registered in the name of the Stockholder, and in the amount
opposite such name, set forth on Schedule III hereto, upon conversion of,
and with respect to, 26,250 of such Stockholder's Shares (the "Rollover
Shares") unless otherwise agreed with Purchaser.
(ii) The Stockholder shall use its best efforts to negotiate
and execute an Investors Agreement on terms and conditions mutually
satisfactory to Purchaser and Stockholder.
(e) Unless, in connection therewith, the Shares held by any trust which
are presently subject to the terms of this Agreement are transferred to
the Stockholder and remain subject in all respects to the terms of this
Agreement, or other Permitted Transferees who upon receipt of such Shares
become signatories to this Agreement, the Stockholder who is a Trustee
shall not take any action to terminate, close or liquidate any such trust
and shall take all steps necessary to maintain the existence thereof at
least until the first to occur of (i) the Effective Time and (ii) the
Termination Date.
(f) The Stockholder shall take all actions necessary to cause any
Rollover Shares that constitute Pledged Shares, prior to the Effective
Time, to be free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
Section 6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 7. Certain Events. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Shares and shall be
binding
9
<PAGE>
upon any person or entity to which legal or Beneficial Ownership of such Shares
shall pass, whether by operation of law or otherwise, including without
limitation the Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
Section 8. Stop Transfer. The Stockholder agrees with, and covenants to,
Purchaser that the Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
Section 9. Rule 145 Affiliates. The Stockholder who is an "affiliate" of
the Company for purposes of Rule 145 under the Securities Act of 1933, as
amended, hereby agrees to deliver to Purchaser, on or prior to the Effective
Time, a written agreement in form and substance acceptable to Purchaser,
restricting the disposition of Rollover Shares.
Section 10. Termination. The obligations of the Stockholder and the
irrevocable proxy contained in Section 4(b) of this Agreement shall terminate
upon the first to occur of (a) the Effective Time and (b) the date the Merger
Agreement is terminated in accordance with its terms (the "Termination Date");
provided that the provisions of Sections 2, 3, 10 and 11 and any claim for
breach of any representation, warranty, covenant or other agreement under this
Agreement shall survive the Effective Time and/or the Termination Date, as
applicable.
Section 11. Miscellaneous.
(a) Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given (i) on the day of service if served personally on the party to
whom notice is to be given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, and
telephonic confirmation of receipt is obtained promptly after completion
of transmission, provided that a copy shall be sent via certified mail,
return receipt requested, simultaneously with any such facsimile; (iii)
on the business day after delivery to Federal Express or similar
overnight courier or the Express Mail service maintained by the United
States Postal Service; or (iv) on the fifth day after mailing, if mailed
to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid and properly addressed, to the
party as follows:
If to the Stockholder: Donald L. Olesen
8 Donna Drive
Upper Brookville, NY 11771
Telecopier: (516) 922-1923
10
<PAGE>
If to Purchaser: Analog Acquisition Corp.
c/o 399 Venture Partners Inc.
399 Park Avenue
14th Floor, Zone 4
New York, NY 10043
Attn: Richard M. Cashin, Jr.
Telecopier: 212-888-2940
and: Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attn: Philip H. Werner, Esq.
Telecopier: 212-309-6273
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(b) At any time prior to the Effective Time, any party hereto may, with
respect to any other party hereto, (i) extend the time for the
performance of any of the obligations or other acts, (ii) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto or (iii) waive compliance with any
of the agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by
the party or parties to be bound thereby.
(c) The headings contained in this Agreement are for the convenience of
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by the Merger Agreement
is not affected in any manner adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner.
11
<PAGE>
(e) This Agreement, including all exhibits, disclosure schedules and
schedules hereto, constitutes the entire agreement and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and
except as otherwise expressly provided herein.
(f) Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by any party (whether by operation of law or
otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other Person shall have any
right, benefit or obligation under this Agreement as a third party
beneficiary or otherwise.
(g) The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the
parties hereto shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the exercise
of any right hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation, warranty
or agreement herein, nor shall any single or partial exercise of any such
right preclude other or further exercise thereof or of any other right.
All rights and remedies existing under this Agreement are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth herein
shall in no way restrict any director in the exercise of his or her
fiduciary duties as a director of the Company. The Stockholder has
executed this Agreement solely in his or her capacity as the record or
beneficial holder of the Stockholder's Shares or as the trustee of a
trust whose beneficiaries are the beneficial owners of the Stockholder's
Shares.
(j) Each party agrees to bear its own expenses in connection with the
transactions contemplated hereby.
(k) This Agreement shall be governed and construed in accordance with
the laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule that would cause the application
of the laws of any jurisdiction other than the State of New York, except
to the extent that the General
12
<PAGE>
Corporation Law of the State of Delaware applies as a result of the
Company being incorporated in the State of Delaware, in which case such
General Corporation Law shall apply.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND
FOR ANY COUNTERCLAIM THEREIN.
(m) This Agreement may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Signature Pages to Follow]
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ANALOG ACQUISITION CORP.
By: /s/ Ian D. Highet
---------------------------------
Ian D. Highet
Vice President
/s/ Donald L. Olesen
---------------------------------
Donald L. Olesen
/s/ Erik Olesen
---------------------------------
Erik Olesen
/s/ Debra Olesen
---------------------------------
Debra Olesen
/s/ Erik Olesen
---------------------------------
Erik Olesen,
as Custodian for Ryan Olesen
/s/ Christopher L. Olesen
---------------------------------
Christopher L. Olesen
/s/ Nicole Olesen
---------------------------------
Nicole Olesen
<PAGE>
/s/ Nicole Olesen
---------------------------------
Nicole Olesen,
as Custodian for Austin Olesen
/s/ Kyle Olesen
---------------------------------
Kyle Olesen
<PAGE>
SCHEDULE I
EXISTING SHARES
<TABLE>
<CAPTION>
Stockholder No. of Existing Shares No. of Option Shares
- ----------- ---------------------- --------------------
<S> <C> <C>
Donald L. Olesen 887,400 30,000
Erik Olesen
Debra Olesen
Erik Olesen
as Custodian
for Ryan Olesen
Christopher Olesen
Nicole Olesen
Nicole Olesen,
as Custodian
for Austin Olesen
Kyle Olesen
Total 887,400 30,000
======= ======
</TABLE>
<PAGE>
SCHEDULE II
PLEDGED SHARES
Stockholder
Shares No. of Pledged
- ------ --------------
Donald L.Olesen 0
Erik Olesen
Debra Olesen
Erik Olesen
as Custodian
for Ryan Olesen
Christopher Olesen
Nicole Olesen
Nicole Olesen,
as Custodian
for Austin Olesen
Kyle Olesen
Total 0
=
<PAGE>
SCHEDULE III
ROLLOVER SHARES
Stockholder No. of Rollover Shares
- ----------- ----------------------
Donald L. Olesen 26,250
<PAGE>
EXHIBIT E
GIFT SCHEDULE
<TABLE>
<CAPTION>
No. of
Donor Donee Shares Date
----- ----- ------ ----
<S> <C> <C> <C>
A. William H. Smith Trust William L. Jacob 3,076 04/01/98
Laura L. Jacob 3,076 04/01/98
R. Thomas Jacob 3,076 04/01/98
William L. Jacob, as Custodian 3,076 04/01/98
for Garth W. Jacob, under the
Michigan Uniform Gifts to
Minors Act until Age 18
William L. Jacob, as Custodian 3,076 04/01/98
for Veronika L. Jacob, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Paul Kubitskey 3,076 04/01/98
Wendy Kubitskey, as Custodian 3,076 04/01/98
for Emoly Kubitskey, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Wendy Kubitskey, as Custodian 3,076 04/01/98
for Kaitlyn Kubitskey, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Scott D. Smith 3,076 04/01/98
Scott D. Smith, as custodian for 3,076 04/01/98
Brittany F. Davies, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Kendall A. Smith 3,076 04/01/98
Kathryn Smith 3,076 04/01/98
Kendall A. Smith, as Custodian 3,076 04/01/98
for Melena Smith, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Wendy Kubitskey 3,076 04/01/98
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Emily Morell
Kubitskey
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Kaitlyn Hunt
Kubitskey
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Melena Renee
Smith
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Brittany Frances
Davies
William H. and Patricia M. Smith 1,000,000 04/9/98
Foundation
B. Patricia M. Smith Trust William L. Jacob 3,076 04/01/98
Laura L. Jacob 3,076 04/01/98
R. Thomas Jacob 3,076 04/01/98
William L. Jacob, as Custodian 3,076 04/01/98
for Garth W. Jacob, under the
Michigan Uniform Gifts to
Minors Act until Age 18
William L. Jacob, as Custodian 3,076 04/01/98
for Veronika L. Jacob, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Paul Kubitskey 3,076 04/01/98
Wendy Kubitskey, as Custodian 3,076 04/01/98
for Emily Kubitskey, under the
Michigan Uniform Gifts to
Minors Act until Age 18
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
No. of
Donor Donee Shares Date
----- ----- ------ ----
<S> <C> <C> <C>
Wendy Kubitskey, as Custodian 3,076 04/01/98
for Kaitlyn Kubitskey, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Scott D. Smith 3,076 04/01/98
Scott D. Smith, as Custodian for 3,076 04/01/98
Brittany F. Davies, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Kendall A. Smith 3,076 04/01/98
Kathryn Smith 3,076 04/01/98
Kendall A. Smith, as Custodian 3,076 04/01/98
for Melena Smith, under the
Michigan Uniform Gifts to
Minors Act until Age 18
Wendy Kubitskey 3,076 04/01/98
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Emily Morell
Kubitskey
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Kaitlyn Hunt
Kubitskey
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Melena Renee
Smith
Werner H. Jean, Trustee of the 46,680 04/02/98
William H. Smith and Patricia M.
Smith Irrevocable Trust dated
April 2, 1998 for Brittany
Francaes Davies
C. Donald L. Olesen Erik Olesen 3,250 03/13/98
Debra Olesen 3,250 03/13/98
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
No. of
Donor Donee Shares Date
----- ----- ------ ----
<S> <C> <C> <C>
Erik Olesen, Custodian for Ryan 1,000 03/13/98
Olesen
Christopher L. Olesen 3,250 03/13/98
Nicole Olesen 3,250 03/13/98
Nicole Olesen, Custodian for 1,000 03/13/98
Austin Olesen
Kyle Olesen 6,600 03/13/98
Donald L. Olesen 237,015 03/13/98
</TABLE>
<PAGE>
EXHIBIT F
JOINT FILING AGREEMENT
The undersigned agree to file jointly with the Securities Exchange Commission
(the "SEC") any and all statements on Schedule 13D or Schedule 13G (and any
amendments or supplements thereto) required under section 13(d) of the
Securities Exchange Act of 1934, as amended, in connection with the merger of
Analog Acquisition Corp. with and into Allied Digital Technologies Corp. (the
"Transaction"). For that purpose, the undersigned hereby constitute and appoint
William H. Smith, Donald L. Olesen and George Fishman, and each or any one of
them as their true and lawful agents and attorneys-in-fact, with full power and
authority for and on behalf of the undersigned to prepare or cause to be
prepared, sign, file with the SEC and furnish to any other person all
certificates, instruments, agreements and documents necessary to comply with
section 13(d) and section 16(a) of the Securities Exchange Act of 1934, as
amended, in connection with the Transaction, and to perform every act necessary
and proper to be done incident to the exercise of the foregoing power, as fully
as the undersigned might or could do if personally present.
Dated: May 14, 1998
/s/ George N. Fishman
---------------------------------------
George N. Fishman
/s/ William H. Smith
---------------------------------------
William H. Smith
/s/ Patricia M. Smith
---------------------------------------
Patricia M. Smith
<PAGE>
William H. Smith Trust
By: William H. Smith
---------------------------
Name: William H. Smith
Title: Trustee
Patricia M. Smith Trust
By: /s/ Patricia M. Smith
---------------------------
Name: Patricia M. Smith
Title: Trustee
/s/ William L. Jacob
---------------------------------------
William L. Jacob
/s/ Laura L. Jacob
---------------------------------------
Laura L. Jacob
/s/ R. Thomas Jacob
---------------------------------------
R. Thomas Jacob
/s/ Barbara S. Jacob
---------------------------------------
Barbara S. Jacob
/s/ William L. Jacob, as Custodian
---------------------------------------
William L. Jacob,
as Custodian for Garth W. Jacob
/s/ William L. Jacob
---------------------------------------
William H. Jacob
/s/ William L. Jacob, as Custodian
---------------------------------------
William L. Jacob,
as Custodian for Veronika L. Jacob
/s/ Paul Kubitskey
---------------------------------------
Paul Kubitskey
<PAGE>
/s/ Wendy Kubitskey, as Custodian
---------------------------------------
Wendy Kubitskey,
as Custodian for Emily Kubitskey
/s/ Wendy Kubitskey, as Custodian
---------------------------------------
Wendy Kubitskey,
as Custodian for Kaitlyn Kubitskey
/s/ Scott D. Smith
---------------------------------------
Scott D. Smith
/s/ Scott D. Smith, as Custodian
---------------------------------------
Scott D. Smith,
as Custodian for Brittany F. Davies
/s/ Kendall A. Smith
---------------------------------------
Kendall A. Smith
/s/ Kathryn Smith
---------------------------------------
Kathryn Smith
/s/ Kendall A. Smith, as Custodian
---------------------------------------
Kendall A. Smith,
as Custodian for Melena Smith
/s/ Wendy Kubitskey
---------------------------------------
Wendy Kubitskey
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Emily Morell Kubitskey
<PAGE>
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of William H. Smith and
Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Kaitlyn Hunt Kubitskey
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust dated
April 2, 1998 for
Melena Renee Smith
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Brittany Frances Davies
William H. and Patricia M. Smith
Foundation
By: /s/ William H. Smith
---------------------------
Name: William H. Smith
Title: President
/s/ Donald L. Olesen
---------------------------------------
Donald L. Olesen
/s/ Erik Olesen
---------------------------------------
Erik Olesen
<PAGE>
/s/ Debra Olesen
---------------------------------------
Debra Olesen
/s/ Erik Olesen, as Custodian
---------------------------------------
Erik Olesen,
as Custodian for Ryan Olesen
/s/ Christopher L. Olesen
---------------------------------------
Christopher L. Olesen
/s/ Nicole Olesen
---------------------------------------
Nicole Olesen
/s/ Nicole Olesen
---------------------------------------
Nicole Olesen,
as Custodian for Austin Olesen
/s/ Kyle Olesen
---------------------------------------
Kyle Olesen
<PAGE>
EXHIBIT F
JOINT FILING AGREEMENT
The undersigned agree to file jointly with the Securities Exchange Commission
(the "SEC") any and all statements on Schedule 13D or Schedule 13G (and any
amendments or supplements thereto) required under section 13(d) of the
Securities Exchange Act of 1934, as amended, in connection with the merger of
Analog Acquisition Corp. with and into Allied Digital Technologies Corp. (the
"Transaction"). For that purpose, the undersigned hereby constitute and appoint
William H. Smith, Donald L. Olesen and George Fishman, and each or any one of
them as their true and lawful agents and attorneys-in-fact, with full power and
authority for and on behalf of the undersigned to prepare or cause to be
prepared, sign, file with the SEC and furnish to any other person all
certificates, instruments, agreements and documents necessary to comply with
section 13(d) and section 16(a) of the Securities Exchange Act of 1934, as
amended, in connection with the Transaction, and to perform every act necessary
and proper to be done incident to the exercise of the foregoing power, as fully
as the undersigned might or could do if personally present.
Dated: May 14, 1998
/s/ George N. Fishman
---------------------------------------
George N. Fishman
/s/ William H. Smith
---------------------------------------
William H. Smith
/s/ Patricia M. Smith
---------------------------------------
Patricia M. Smith
<PAGE>
William H. Smith Trust
By: William H. Smith
---------------------------
Name: William H. Smith
Title: Trustee
Patricia M. Smith Trust
By: /s/ Patricia M. Smith
---------------------------
Name: Patricia M. Smith
Title: Trustee
/s/ William L. Jacob
---------------------------------------
William L. Jacob
/s/ Laura L. Jacob
---------------------------------------
Laura L. Jacob
/s/ R. Thomas Jacob
---------------------------------------
R. Thomas Jacob
/s/ Barbara S. Jacob
---------------------------------------
Barbara S. Jacob
/s/ William L. Jacob, as Custodian
---------------------------------------
William L. Jacob,
as Custodian for Garth W. Jacob
/s/ William L. Jacob
---------------------------------------
William H. Jacob
/s/ William L. Jacob, as Custodian
---------------------------------------
William L. Jacob,
as Custodian for Veronika L. Jacob
/s/ Paul Kubitskey
---------------------------------------
Paul Kubitskey
<PAGE>
/s/ Wendy Kubitskey, as Custodian
---------------------------------------
Wendy Kubitskey,
as Custodian for Emily Kubitskey
/s/ Wendy Kubitskey, as Custodian
---------------------------------------
Wendy Kubitskey,
as Custodian for Kaitlyn Kubitskey
/s/ Scott D. Smith
---------------------------------------
Scott D. Smith
/s/ Scott D. Smith, as Custodian
---------------------------------------
Scott D. Smith,
as Custodian for Brittany F. Davies
/s/ Kendall A. Smith
---------------------------------------
Kendall A. Smith
/s/ Kathryn Smith
---------------------------------------
Kathryn Smith
/s/ Kendall A. Smith, as Custodian
---------------------------------------
Kendall A. Smith,
as Custodian for Melena Smith
/s/ Wendy Kubitskey
---------------------------------------
Wendy Kubitskey
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Emily Morell Kubitskey
<PAGE>
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of William H. Smith and
Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Kaitlyn Hunt Kubitskey
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust dated
April 2, 1998 for
Melena Renee Smith
/s/ Werner H. Jean, Trustee
---------------------------------------
Werner H. Jean, Trustee
of the William H. Smith
and Patricia M. Smith
Irrevocable Trust
dated April 2, 1998
for Brittany Frances Davies
William H. and Patricia M. Smith
Foundation
By: /s/ William H. Smith
---------------------------
Name: William H. Smith
Title: President
/s/ Donald L. Olesen
---------------------------------------
Donald L. Olesen
/s/ Erik Olesen
---------------------------------------
Erik Olesen
<PAGE>
/s/ Debra Olesen
---------------------------------------
Debra Olesen
/s/ Erik Olesen, as Custodian
---------------------------------------
Erik Olesen,
as Custodian for Ryan Olesen
/s/ Christopher L. Olesen
---------------------------------------
Christopher L. Olesen
/s/ Nicole Olesen
---------------------------------------
Nicole Olesen
/s/ Nicole Olesen
---------------------------------------
Nicole Olesen,
as Custodian for Austin Olesen
/s/ Kyle Olesen
---------------------------------------
Kyle Olesen
