As filed with the Securities and Exchange Commission on July 26, 1999
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
13d-2(a)
Intrav, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
460 930 100
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(CUSIP Number)
Ian Coghlan
Kuoni Reisen Holding AG
Neue Hard 7
CH-8010 Zurich
Switzerland
+41 (1) 277-4000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
with copies to:
James L. Nouss, Esq.
Bryan Cave llp
One Metropolitan Square
Suite 3600
St. Louis, Missouri 63102
(314) 259-2149
July 16, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box:
(Continued on following pages)
(Page 1 of 33 Pages)
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<PAGE>
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CUSIP No. 460 930 100 Schedule 13D Page 2 of 33 Pages
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1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
KUONI REISEN HOLDINGS AG
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2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) | |
(b) |_|
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3) SEC USE ONLY
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4) SOURCE OF FUNDS*
WC
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5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
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6) CITIZENSHIP OR PLACE OF ORGANIZATION
Switzerland
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7 SOLE VOTING POWER #
NUMBER OF SHARES -------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER #
OWNED BY EACH -------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER #
PERSON WITH -------------------------------------------------------
10 SHARED DISPOSITIVE POWER #
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11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
#
- --------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
#
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14) Type of Reporting Person*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
# The Reporting Persons are filing this Schedule 13D for information purposes
only and hereby expressly disclaim beneficial ownership of any of the
Shares. (See Item 4.)
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CUSIP No. 460 930 100 Schedule 13D Page 3 of 33 Pages
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1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
DIAMOND HOLDING DELAWARE, INC.
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2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) | |
(b) |_|
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3) SEC USE ONLY
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4) SOURCE OF FUNDS*
WC
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5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
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6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER #
NUMBER OF SHARES -------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER #
OWNED BY EACH -------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER #
PERSON WITH -------------------------------------------------------
10 SHARED DISPOSITIVE POWER #
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11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
#
- --------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
#
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14) Type of Reporting Person*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
# The Reporting Persons are filing this Schedule 13D for information purposes
only and hereby expressly disclaim beneficial ownership of any of the
Shares. (See Item 4.)
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CUSIP No. 460 930 100 Schedule 13D Page 4 of 33 Pages
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1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
DIAMOND ACQUISITION SUBSIDIARY MISSOURI, INC.
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2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) | |
(b) |_|
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3) SEC USE ONLY
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4) SOURCE OF FUNDS*
WC
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5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
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6) CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri
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7 SOLE VOTING POWER #
NUMBER OF SHARES -------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER #
OWNED BY EACH -------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER #
PERSON WITH -------------------------------------------------------
10 SHARED DISPOSITIVE POWER #
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11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
#
- --------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|_|
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13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
#
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14) Type of Reporting Person*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
# The Reporting Persons are filing this Schedule 13D for information purposes
only and hereby expressly disclaim beneficial ownership of any of the
Shares. (See Item 4.)
<PAGE>
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CUSIP No. 460 930 100 Schedule 13D Page 5 of 33 Pages
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Item 1. Security and Issuer.
This Statement on Schedule 13D (the "Schedule 13D") relates to the common
stock, par value $.01 per share (the "Shares"), of Intrav, Inc., a corporation
incorporated under the laws of the State of Missouri (the "Company"). The
principal executive offices of the Company are located at 7711 Bonhomme Avenue,
St. Louis, Missouri 63105.
Item 2. Identity and Background.
(a)-(c), (f) The names and business addresses of the persons filing this
statement are
Kuoni Reisen Holding AG
Neue Hard 7
CH-8010 Zurich
Switzerland
Diamond Holding Delaware, Inc.
c/o Kuoni Reisen Holding AG
Neue Hard 7
CH-8010 Zurich
Switzerland
Diamond Acquisition Subsidiary Missouri, Inc.
c/o Kuoni Reisen Holding AG
Neue Hard 7
CH-8010 Zurich
Switzerland
Diamond Acquisition Subsidiary Missouri, Inc. ("Diamond") is a wholly owned
subsidiary of Diamond Holding Delaware, Inc. ("Holding"), which is in turn a
wholly owned subsidiary of Kuoni Reisen Holding AG ("Kuoni"). Kuoni is a holding
company which, through its subsidiaries, is a global provider of travel related
services.
Information relating to the directors and executive officers of Kuoni,
Holding and Diamond (the "Reporting Persons") is contained in Appendix A
attached hereto and is incorporated herein by reference.
(d) and (e) Neither any Reporting Person nor, to the best knowledge of the
Reporting Persons, any of the persons listed in Appendix A, has during the last
five years (i) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction which has
resulted in a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal or State securities laws
or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Kuoni will obtain the funds to purchase the Shares under the Agreement and
Plan of Merger by and among Kuoni, Holding, Diamond and Intrav dated as of July
16, 1999 (the "Merger Agreement") from working capital and the operations of its
subsidiaries.
Item 4. Purpose of Transaction.
(a) - (j) On July 16, 1999, Kuoni, Holding, Diamond and Intrav entered into
the Merger Agreement, a copy of which is incorporated by reference as an exhibit
hereto and hereby expressly incorporated herein by reference. Kuoni entered into
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CUSIP No. 460 930 100 Schedule 13D Page 6 of 33 Pages
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the Merger Agreement with the intent of acquiring control of, and the entire
equity interest in, Intrav and replacing the Board of Directors of Intrav. The
Merger Agreement provides for the merger of Diamond with and into Intrav, with
Intrav becoming a wholly-owned subsidiary of Kuoni (the "merger"). The
affirmative vote of at least two-thirds (2/3) of the outstanding Intrav common
shares is required to approve the Merger Agreement. As a result of the merger,
each Intrav common share issued and outstanding when the merger becomes
effective (other than shares held by Intrav, Kuoni, Diamond and shareholders, if
any, who properly exercise their dissenters' rights under Missouri law) will be
converted into the right to receive $21.32 in cash, without interest. Intrav has
advised Kuoni that, as of July 16, 1999, there were 5,114,200 shares of Intrav
common stock outstanding. Additionally, Intrav has agreed to cause outstanding
options to become payable for cash, subject to any applicable withholding tax,
equal to the difference between $21.32 and the per share exercise price of such
options. Intrav has advised Kuoni that there are outstanding options to purchase
515,000 shares of Intrav common stock with an aggregate exercise price of such
options being $5,734,000. It is expected that Kuoni will pay approximately
$114,280,544 to the holders of Intrav common stock and options to purchase
Intrav common stock upon the consummation of the merger.
On the same date, Kuoni, Holding and Diamond entered into a Majority
Shareholder Agreement (the "Majority Shareholder Agreement") with the holder of
approximately 74.8% of the outstanding shares of Intrav common stock, The
Revocable Trust of Barney A. Ebsworth, dated July 23, 1986, as amended (the
"Majority Shareholder") and Barney A. Ebsworth, individually. A copy of the
Majority Shareholder Agreement is incorporated by reference as an exhibit hereto
and hereby expressly incorporated herein by reference. Pursuant to the Majority
Shareholder Agreement, the Majority Shareholder granted to Kuoni, Holding and
Diamond an irrevocable option to purchase at a price of $21.32 per share, under
certain circumstances, up to 24.9% of the total number of shares of Intrav
common stock outstanding on the date of exercise of the option (the "Kuoni
Option") and agreed to vote in favor of the merger at a shareholders' meeting
called to consider the merger. The Kuoni Option is only exercisable if the
Majority Shareholder fails to vote all of its shares of Intrav common stock in
favor of the merger or Intrav receives a certain type of takeover proposal. The
Majority Shareholder Agreement also provides that, during the time that the
Kuoni Option is exercisable, if the Majority Shareholder sells or agrees to sell
its shares of Intrav common stock and receives in consideration for such sale an
amount in excess of $21.32 per share, the Majority Shareholder will pay to
Holding the excess of such price over $21.32 on all shares sold by the Majority
Shareholder in such transaction. The Majority Shareholder Agreement was entered
into by the Majority Shareholder and Mr. Ebsworth as an inducement to Kuoni to
enter into the Merger Agreement.
Summaries of the Merger Agreement and Majority Shareholder Agreement are
contained in Appendix B and Appendix C, respectively, attached hereto and are
incorporated herein by reference.
Article Eleven of Intrav's Restated Articles of Incorporation, as amended,
and Article XV of Intrav's Amended and Restated Bylaws, as amended, generally
restrict beneficial ownership of more than 24.9% of the outstanding shares of
Intrav common stock by non-United States citizens in order to ensure compliance
with the federal Merchant Marine Act of 1936, as amended (the "Merchant Marine
Act"), and the federal Shipping Act of 1916, as amended (the "Shipping Act"),
and applicable regulations thereunder. In connection with the execution of the
Merger Agreement, Intrav's Board of Directors amended its By-Laws to set forth
rules and regulations pursuant to Article Eleven.H which (i) interpret Article
Eleven to provide that the agreement to vote by the Majority Shareholder
pursuant to the Majority Shareholder Agreement, does not constitute "Beneficial
Ownership" (as defined in the Restated Articles of Incorporation) by Kuoni,
Holding or Diamond in Intrav for purposes of such Article Eleven and (ii)
confirm that for purposes of calculating "Excess Shares," (as defined in the
Restated Articles of Incorporation) that the date of the Majority Shareholder
Agreement shall be deemed to be the acquisition date of the shares of Intrav
common stock subject to the Kuoni Option if it is ever exercised.
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CUSIP No. 460 930 100 Schedule 13D Page 7 of 33 Pages
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As a condition to the consummation of the merger, Intrav will restructure
the ownership and operation of its two U.S. flagged vessels so that they will
continue to be owned and operated by U.S. citizens following the merger. On July
16, 1999, Kuoni and Holding entered into a letter agreement with Paul H.
Duynhouwer, the President and Chief Executive Officer of Intrav (the "Letter
Agreement"). Pursuant to the Letter Agreement, Mr. Duynhouwer agreed to make an
equity investment and take an ownership interest in one or more newly formed
entities that will own and operate the two U.S. flagged vessels so that
non-United States citizens can beneficially own 25% or more of the shares of
Intrav common stock without violating the Merchant Marine Act or the Shipping
Act.
Pursuant to the Merger Agreement, Intrav agreed to recommend to its
shareholders that they approve an amendment to the Restated Articles of
Incorporation to remove Article Eleven and to remove Article XV of its Amended
and Restated Bylaws to remove the restriction on beneficial ownership of more
than 24.9% of the outstanding shares of Intrav common stock by non-United States
citizens. Pursuant to the Majority Shareholder Agreement, the Majority
Shareholder has agreed to vote in favor of the amendment to the Restated
Articles of Incorporation. The taking of such actions is a condition to the
consummation of the merger.
Kuoni expects that the business and operations of Intrav will be continued
substantially as they are currently being conducted (other than the change of
ownership of Intrav's two U.S. flagged vessels, as described above), although it
plans to evaluate and review Intrav's business, operations and properties and
make such changes as are deemed appropriate in light of the increasing
competition in the travel industry and other circumstances as they arise.
Following the consummation of the merger, Kuoni intends to cause Intrav to
discontinue paying regularly quarterly dividends.
Following consummation of the transactions contemplated by the Merger
Agreement, Kuoni will take steps to cease the listing of the shares of Intrav
common stock on the Nasdaq National Market and Kuoni will file a Form 15 to
terminate the registration of Intrav common stock under Section 12(g) of the
Securities Exchange Act of 1934, which will become effective within 90 days
thereafter unless withdrawn or denied.
Except as described above or as referred to in Appendix B or Appendix C
attached hereto, Kuoni, Holding and Diamond have no present plans or proposals
that would relate to or result in an extraordinary corporate transaction such as
a merger, reorganization or liquidation involving Intrav or any of its
subsidiaries or a sale or other transfer of a material amount of assets of
Intrav or any of its subsidiaries, any material change in the capitalization of
Intrav or any other material change in Intrav's corporate structure or business.
Item 5. Interest in Securities of the Issuer.
The Reporting Persons are filing this Schedule 13D for informational
purposes only and hereby expressly disclaim beneficial ownership of any of the
Shares.
(a) - (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Neither Kuoni, Holding nor Diamond have any contract, arrangement,
understanding, or relationship (legal or otherwise) with any person with respect
to any securities of Intrav other than as indicated elsewhere herein. See Item 4
and Appendices B and C hereto for descriptions of the Merger Agreement, the
Majority Shareholder Agreement and Letter Agreement, which descriptions are
incorporated by reference herein.
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CUSIP No. 460 930 100 Schedule 13D Page 8 of 33 Pages
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Item 7. Material To Be Filed As Exhibits.
(a) Agreement and Plan of Merger dated July 16, 1999 by and among Kuoni,
Holding, Diamond and Intrav (incorporated by reference to Intrav's Current
Report on Form 8-K dated July 16, 1999 (filed July 22, 1999)).
(b) Majority Shareholder Agreement dated July 16, 1999 by and among Kuoni,
Holding, Diamond, the Majority Shareholder and Barney A. Ebsworth (incorporated
by reference to Intrav's Current Report on Form 8-K dated July 16, 1999 (filed
July 22, 1999)).
(c) Letter Agreement dated July 16, 1999 by and among Kuoni, Holding and
Paul H. Duynhouwer.
(d) Powers of Attorney of Kuoni, Holding and Diamond (contained on
Signature and Power of Attorney pages).
The undersigned hereby agree to jointly file a statement on Schedule 13D,
together with any amendments thereto, with the SEC pursuant to the requirements
of Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended.
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CUSIP No. 460 930 100 Schedule 13D Page 9 of 33 Pages
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SIGNATURE
After due inquiry and to the best of the undersigned's knowledge and
belief, the undersigned each certify that the information set forth in this
statement is true, complete and correct.
Dated: July 26, 1999
KUONI REISEN HOLDING AG
Kuoni Reisen Holding AG ("Kuoni") hereby constitutes and appoints Peter
Diethelm, Stephan Hitz and Ian Coghlan, and each of them (with full power to
each of them to act alone), the true and lawful attorneys-in-fact and agents
for Kuoni, to act on behalf of and in the name of Kuoni in connection with
this Schedule 13D, including the authority to sign any amendments hereto, and
to file the same, with exhibits and any and all other documents filed with
respect thereto, with the Securities and Exchange Commission (or any other
governmental or regulatory authority), and Kuoni ratifies and confirms all
that said attorneys in fact and agents may lawfully do or cause to be done by
virtue hereof.
By: /s/ Stephan Hitz
-----------------
Name: Stephan Hitz
Title: Direktor
DIAMOND HOLDING DELAWARE, INC.
Diamond Holding Delaware, Inc. ("Holding") hereby constitutes and appoints
Peter Diethelm, Stephan Hitz and Ian Coghlan, and each of them (with full
power to each of them to act alone), the true and lawful attorneys-in-fact and
agents for Holding, to act on behalf of and in the name of Holding in
connection with this Schedule 13D, including the authority to sign any
amendments hereto, and to file the same, with exhibits and any and all other
documents filed with respect thereto, with the Securities and Exchange
Commission (or any other governmental or regulatory authority), and Holding
ratifies and confirms all that said attorneys in fact and agents may lawfully
do or cause to be done by virtue hereof.
By: /s/ Ian Coghlan
-------------------------
Name: Ian Coghlan
Title: Secretary
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CUSIP No. 460 930 100 Schedule 13D Page 10 of 33 Pages
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DIAMOND ACQUISITION
SUBSIDIARY MISSOURI, INC.
Diamond Acquisition Subsidiary Missouri, Inc. ("Diamond") hereby constitutes
and appoints Peter Diethelm, Stephan Hitz and Ian Coghlan, and each of them
(with full power to each of them to act alone), the true and lawful
attorneys-in-fact and agents for Diamond, to act on behalf of and in the name
of Diamond in connection with this Schedule 13D, including the authority to
sign any amendments hereto, and to file the same, with exhibits and any and
all other documents filed with respect thereto, with the Securities and
Exchange Commission (or any other governmental or regulatory authority), and
Diamond ratifies and confirms all that said attorneys in fact and agents may
lawfully do or cause to be done by virtue hereof.
By: /s/ Ian Coghlan
-------------------------------
Name: Ian Coghlan
Title: Secretary
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CUSIP No. 460 930 100 Schedule 13D Page 11 of 33 Pages
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APPENDIX A
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS OF THE KUONI, HOLDING AND DIAMOND
1. Directors and Executive Officers of Kuoni. Set forth below are the name,
current business address, citizenship and the present principal occupation or
employment and material occupations, positions, offices or employments for the
past five years of each director and executive officer of Kuoni. The principal
address of Kuoni and, unless otherwise indicated below, the current business
address for each individual listed below is Neue Hard 7, CH-8010 Zurich,
Switzerland. Each such person is a citizen of Switzerland. Unless otherwise
indicated, each occupation set forth opposite the individual's name refers to
employment with Kuoni.
Name and Current Present Principal Occupation or Employment;
Business Address Material Positions Held During the Past Five Years
---------------- --------------------------------------------------
Directors:
Daniel Affolter Chairman
Claudia Depuoz Senior Vice President, UTO Insurance Company
UTO Insurance Company
Verena Conzett-Strasse 11
PO Box 8230
CH-8036 Zurich
Hans Eisenring Retired Mechanical Engineer.
Landgarbenstrasse 21
CH-3052 Zollikofen
Heinz Muller Former Executive Vice President United Bank
Kurhausstrasse 84 of Switzerland (now retired)
CH-8032 Zurich
Dr. Gilbert Probst Professor, University of Geneva
University of Geneva
University MAIL
102, Bd. Carl-Vogt
CH-1211 Geneva 4
Dr. Roland Rasi Lawyer and Consultant, self-employed
Angensteinerstrasse 16
CH-4052 Basel
Executive Officers:
Hans Lerch Chief Executive Officer
Max E. Katz Chief Financial Officer
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CUSIP No. 460 930 100 Schedule 13D Page 12 of 33 Pages
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Name and Current Present Principal Occupation or Employment;
Business Address Material Positions Held During the Past Five Years
---------------- --------------------------------------------------
Marcel Herter Executive Vice-President SBU International
Reto Bacher Executive Vice-President SBU Business Travel
Peter Diethelm Executive Vice-President SBU United Kingdom
Kuoni Travel Ltd.
Kuoni House
GB-Dorking, Surrey RH5 4AZ
2. Directors and Executive Officers of Diamond and Holding. Set forth below
are the name, current business address, citizenship and the present principal
occupation or employment and material occupations, positions, offices or
employments for the past five years of each director and executive officer of
Diamond and Holding. The principal address of Diamond and Holding is c/o Kuoni
Reisen Holding AG, Neue Hard 7, CH-8010 Zurich, Switzerland. Unless otherwise
indicated, each such person is a citizen of Switzerland. Unless otherwise
indicated, each occupation set forth opposite the individual's name refers to
employment with Diamond and Holding.
Name and Current Present Principal Occupation or Employment;
Business Address Material Positions Held During the Past Five Years
---------------- --------------------------------------------------
Peter Diethelm Director and Chief Executive Officer
Kuoni Reisen Holding AG Executive Vice-President SBU United Kingdom,
Neue Hard 7 Kuoni
CH-8010 Zurich, Switzerland
Ian Coghlan Director and Secretary
(Citizen of the United Kingdom) Deputy Managing Director, Kuoni Travel Ltd.,
Kuoni Travel Ltd. Dorking
Kuoni House
Dorking, Surrey RH5 4AZ
United Kingdom
Max E. Katz Director and President
Kuoni Reisen Holding AG Chief Financial Officer, Kuoni Reisen Holding
Neue Hard 7 AG
CH-8010 Zurich
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CUSIP No. 460 930 100 Schedule 13D Page 13 of 33 Pages
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APPENDIX B
Summary of the Merger Agreement
General
Pursuant to the merger agreement, at the effective time of the merger,
Kuoni will acquire Intrav through the merger of Diamond Acquisition Subsidiary
with and into Intrav. At the effective time of the merger, Diamond Acquisition
Subsidiary will cease to exist, and Intrav will be the surviving corporation and
a wholly-owned subsidiary of Kuoni.
Merger Consideration
At the effective time of the merger, by virtue of the merger and without
any action on the part of any shareholder, each issued and outstanding Intrav
common share held by Intrav shareholders will be converted into the right to
receive $21.32 in cash, without interest, except for shares canceled as
described below and shares as to which dissenters' rights are exercised by a
dissenting shareholder.
All Intrav common shares held as treasury shares will automatically be
canceled and retired at the effective time of the merger and will cease to
exist. No consideration will be delivered in exchange for these shares. Each
Intrav common share issued and outstanding immediately prior to the effective
time of the merger that is owned by Kuoni, Diamond Holding, Diamond Acquisition
Subsidiary, Intrav or a subsidiary of Intrav will be canceled as of the
effective time of the merger, and no merger consideration will be payable with
respect to such shares.
As of the effective time of the merger, certificates representing all
Intrav common shares issued and outstanding immediately prior to the effective
time (except for shares as to which dissenters' rights are exercised by a
dissenting shareholder) will cease to have any rights with respect to those
shares, except the right to receive the merger consideration in accordance with
the terms of the merger agreement.
As of the effective time of the merger, all shares of Diamond Acquisition
Subsidiary issued and outstanding immediately prior to the effective time of the
merger will be converted into one share of common stock of Intrav and will
represent all of the issued and outstanding shares of Intrav common stock after
the merger.
No dissenting shareholder will be entitled to any portion of the merger
consideration or other distributions unless and until the dissenting shareholder
fails to exercise or otherwise effectively withdraws or loses his or her rights
to payment under Missouri law. Intrav common shares as to which dissenters'
rights have been exercised will be treated in accordance with Section 351.455 et
seq. of The General and Business Corporation Law of Missouri. If any person, who
otherwise would be deemed a dissenting shareholder, fails to properly exercise
or effectively loses dissenters' rights with respect to any Intrav common
shares, those shares will be treated as though they had been converted as of the
effective date of the merger into the right to receive the merger consideration,
without interest.
Exchange of Shares
Prior to the effective time of the merger, Kuoni will appoint an exchange
agent. Prior to the effective time of the merger, Kuoni will deposit with the
exchange agent funds in an amount sufficient to make the payments contemplated
by the merger agreement. Soon after the completion of the merger, Intrav, as the
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CUSIP No. 460 930 100 Schedule 13D Page 14 of 33 Pages
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surviving corporation, will send a letter to each person who was a Intrav
shareholder as of the date the merger became effective. The letter will contain
instructions on how to surrender Intrav stock certificates to the exchange agent
and receive the merger consideration. Intrav shareholders have no right to any
interest on the cash payable upon the surrender of Intrav stock certificates.
Any time following the sixth month after the effective time of the merger,
Intrav may require the exchange agent to deliver to it any portion of the funds
deposited by Kuoni with the exchange agent not already disbursed to Intrav
shareholders. In the event Intrav requires the exchange agent to deliver such
funds, Intrav shareholders must thereafter look to Intrav, as the surviving
corporation, for payment of any merger consideration that may be payable to them
upon surrender of their stock certificates. Any such shareholders will be deemed
general creditors of Intrav, as the surviving corporation, for such purpose.
Kuoni, Intrav, as the surviving corporation, and the exchange agent will be
entitled to withhold, from the merger consideration payable to any Intrav
shareholder, those amounts required to be deducted under tax law. All amounts so
withheld will be deemed to have been paid to the applicable Intrav shareholder.
Treatment of Stock Options
Prior to the effective time of the merger, each outstanding and unexpired
option to purchase Intrav common shares issued pursuant to its Amended Incentive
Stock Plan will be converted into the right to receive for each share subject to
such option an amount in cash, subject to any applicable withholding tax, equal
to the difference between $21.32 and the per share exercise price of such
option. At the effective time of the merger, the Intrav options will be
canceled. The payment of these amounts will be made by the surviving corporation
promptly following the effective time of the merger, provided that Kuoni
verifies the options and the optionee delivers a written instrument setting
forth:
o his or her number of options, their respective issue dates and
exercise prices;
o certain representations by the optionee; and
o a confirmation of and consent to the conversion of the options as
provided in the merger agreement.
Intrav agrees, if necessary, to cause all outstanding options to be amended
to provide for and give effect to the transactions contemplated by the merger
agreement.
Representations And Warranties
In the merger agreement, Intrav makes representations and warranties to
Kuoni and Diamond Holding with respect to, among other things:
o due organization and good standing of Intrav and its subsidiaries;
o capitalization, ownership of subsidiaries and other investments;
o corporate authorization;
o the vote required by the shareholders of Intrav in connection with the
merger agreement;
o the opinion of Stifel, Nicolaus & Company, Incorporated;
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CUSIP No. 460 930 100 Schedule 13D Page 15 of 33 Pages
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o governmental approvals;
o absence of any breach of organizational documents or material
agreements or applicable law as a result of the contemplated
transactions;
o required, third-party consents under material contracts or any other
obligation of Intrav or any of its subsidiaries;
o absence of any lien or encumbrance upon any asset of Intrav or any of
its subsidiaries;
o accuracy of its filings with the Securities and Exchange Commission
and other regulatory entities;
o litigation, investigations or proceedings regarding violations of law;
o accuracy of financial statements;
o the absence of specified changes or events;
o compliance with applicable law;
o required licenses and permits;
o engagement of and payments to brokers, investment bankers, finders and
financial advisors in connection with the merger agreement;
o material contracts;
o matters relating to compliance with the Employee Retirement Income
Security Act of 1974, as amended, and other employee benefit matters;
o tax matters;
o liabilities;
o environmental matters affecting Intrav;
o intellectual property matters;
o owned and leased real property;
o corporate records;
o title to and condition of Intrav's personal property;
o absence of adverse actions against Intrav and its subsidiaries or
challenging the merger agreement;
o labor and employee relations matters;
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CUSIP No. 460 930 100 Schedule 13D Page 16 of 33 Pages
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o change of control agreements;
o insurance;
o satisfaction of Missouri takeover statutes;
o efforts to resolve any "Year 2000" computer problems;
o outstanding Intrav options;
o transactions with affiliates;
o absence of existing discussions by Intrav with any third party
relating to an alternative transaction;
o the accuracy of other information supplied by Intrav; and
o the preparation of the proxy statement.
In the merger agreement, Kuoni and Diamond Holding make representations and
warranties to Intrav with respect to, among other things:
o due organization and good standing of Kuoni, Diamond Holding and
Diamond Acquisition Subsidiary;
o corporate authorization;
o governmental approvals;
o absence of any breach of organizational documents or material
agreements or applicable law as a result of the contemplated
transactions;
o required, third-party consents under any material contracts or any
other obligation of Kuoni, Diamond Holding or Diamond Acquisition
Subsidiary;
o absence of any lien or encumbrance upon any asset of Kuoni, Diamond
Holding or Diamond Acquisition Subsidiary;
o engagement of and payments to brokers, investment bankers, finders and
financial advisors in connection with the merger agreement;
o the accuracy of information regarding Kuoni, Diamond Holding and
Diamond Acquisition Subsidiary contained in the proxy statement, and
the preparation of the proxy statement; and
o Kuoni's financial ability to pay the merger consideration.
Conditions to Closing
Intrav's and Kuoni's obligation to effect the merger is subject to the
satisfaction or waiver on or prior to the closing date of the merger of the
following customary closing conditions:
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CUSIP No. 460 930 100 Schedule 13D Page 17 of 33 Pages
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o the requisite approval by Intrav shareholders of the merger
agreement;
o no order, statute, rule, regulation, executive order, stay, decree,
judgment or injunction enacted, entered, promulgated, or enforced by
any court or other governmental authority being in effect prohibiting
or preventing the consummation of the merger or the other transactions
contemplated under the merger agreement (Intrav and Kuoni being
required to use their reasonable best efforts to have any of the
foregoing vacated, dismissed or withdrawn by the effective time of the
merger);
o the waiting period, including any extensions, applicable to the
consummation of the merger under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 having expired or been terminated;
o all approvals under the applicable provisions of Section 721 of Title
VII of the Defense Production Act of 1950, as amended;
o the opinion of Stifel, Nicolaus & Company, Incorporated not being
withdrawn; and
o all consents, approvals and actions of, filings with and notices to
any governmental authority required to consummate the merger and the
other transactions contemplated by the merger agreement having been
obtained by final order (other than those consents the failure of
which to obtain, in Diamond Holding's judgment, would not have a
material adverse effect on the surviving corporation).
In addition, Kuoni's and Diamond Acquisition Subsidiary's obligation to
effect the merger is subject to the satisfaction or waiver of the following
conditions:
o the representations and warranties of Intrav which are modified by
materiality or material adverse effect being true and correct in all
respects, and those not so modified by materiality or material adverse
effect being true and correct in all material respects, as of the date
of the merger agreement and as of the closing date, except for such
changes not prohibited under the merger agreement; and none of
Intrav's representations and warranties being untrue or incorrect,
disregarding any materiality qualifications, to the extent that such
untrue or incorrect representations and warranties when taken as a
whole, have had or would have a material adverse effect on Intrav; and
the environmental representations and warranties of Intrav being true
and correct in all material respects, without reference to any
knowledge qualifier contained in such environmental representations
and warranties;
o Intrav having, in all material respects, performed and complied with
all covenants and agreements and satisfied all conditions required to
be performed or complied with or satisfied by it under the merger
agreement at or prior to the effective time of the merger;
o there having been no event that has or reasonably could be expected to
have a material adverse effect on Intrav;
o no action, investigation or proceeding having been instituted, pending
or threatened by any governmental authority, and there not being
instituted, pending or threatened any action or proceeding by any
other person, before any governmental authority, which is reasonably
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CUSIP No. 460 930 100 Schedule 13D Page 18 of 33 Pages
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likely to be determined adversely to Kuoni, Diamond Holding or Diamond
Acquisition Subsidiary:
-- challenging or seeking to make illegal, delay materially or
restrain or prohibit the consummation of the merger or seeking to
obtain material damages or imposing any material adverse
conditions in connection therewith or otherwise directly or
indirectly relating to the transactions contemplated by the
merger,
-- seeking to restrain, prohibit or delay the exercise of full
rights of ownership or operation by Kuoni, Diamond Holding or
Diamond Acquisition Subsidiary or their affiliates of all or any
portion of the business or assets of Intrav and its subsidiaries,
taken as a whole, or of Kuoni, Diamond Holding or Diamond
Acquisition Subsidiary or any of their affiliates to dispose of
or hold separate all or any material portion of the business or
assets of Intrav and its subsidiaries, taken as a whole, or of
Kuoni, Diamond Holding or Diamond Acquisition Subsidiary or any
of their affiliates,
-- seeking to impose or confirm material limitations on the ability
of Kuoni, Diamond Holding or Diamond Acquisition Subsidiary or
any of their affiliates to exercise full rights of ownership of
the Intrav common shares,
-- seeking to require divestiture by Kuoni, Diamond Holding or
Diamond Acquisition Subsidiary or any of their affiliates of the
Intrav common shares, or
-- that otherwise would reasonably be expected to have a material
adverse effect on Intrav;
o at the effective time of the merger, holders of no more than 200,000
Intrav common shares having taken actions to assert dissenters' rights
under Missouri law;
o Intrav having obtained or made the consents, approvals, waivers,
authorizations or filings required in connection with the merger under
all agreements or instruments to which it or any of its subsidiaries
is a party, on terms and conditions reasonably acceptable to Diamond
Holding and such consents and approvals being in full force and
effect, except those for which failure to obtain such consents and
approvals would not in the judgment of Diamond Holding have a material
adverse effect on the surviving corporation;
o Intrav having furnished Diamond Holding with:
-- a certificate dated the closing date signed on its behalf by its
President or another duly authorized officer to the effect that
certain specified conditions regarding accuracy of its
representations and warranties and performance of its obligations
have been satisfied,
-- certificates of good standing,
-- duly adopted Board and shareholder resolutions,
-- copies of charter documents and by-laws,
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CUSIP No. 460 930 100 Schedule 13D Page 19 of 33 Pages
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-- certain Noncompete and Confidentiality Agreements with Barney A.
Ebsworth, Chairman, and Paul H. Duynhouwer, President and Chief
Executive Officer, of Intrav,
-- certain resignations,
-- a list of shareholders of record,
-- comfort letters,
-- an opinion of counsel, and
-- such other documents and instruments as Diamond Holding
reasonably may request; and
o Intrav having transferred or otherwise disposed of its two U.S.
flagged vessels to a person or persons as designated by, and as
directed by and on such terms and conditions as specified by, Diamond
Holding, and such U.S. flagged vessels having been registered in the
name(s) of the new owner(s) with an endorsement for the coastwise
trade and all applicable mortgages with respect to such U.S. flagged
vessels having been recorded with the National Vessel Documentation
Center; and Intrav having entered into certain time charters and
operating agreements with respect to its vessels and a transitional
services agreement providing for certain transition services with a
person, in a form and on terms and conditions as reasonably specified
by Acquiror.
In addition, Intrav's obligation to effect the merger is subject to the
satisfaction or waiver of the following conditions:
o the representations and warranties of Kuoni and Diamond Holding which
are modified by materiality or material adverse effect being true and
correct in all respects, and those not so modified by materiality or
material adverse effect being true and correct in all material
respects, as of the date of the merger agreement and as of the closing
date, except for such changes not prohibited under the merger
agreement; and none of the representations and warranties of Kuoni and
Diamond Holding being untrue or incorrect, disregarding any
materiality qualifications, to the extent that such untrue or
incorrect representations or warranties, when taken as a whole, have
had or would have a material adverse effect on Kuoni, Diamond Holding
and its subsidiaries;
o Kuoni and Diamond Holding having, in all material respects, performed
and complied with all covenants and agreements and satisfied all
conditions required to be performed or complied with or satisfied by
them under the merger agreement at or prior to the effective time of
the merger; and
o Diamond Holding having furnished Intrav with a certificate dated the
closing date signed on its behalf by an authorized officer to the
effect that certain specified conditions have been satisfied.
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CUSIP No. 460 930 100 Schedule 13D Page 20 of 33 Pages
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Covenants
Conduct of Business. The merger agreement provides that, until the merger
is completed, Intrav will conduct its business in the ordinary course and
consistent with past practice. Intrav has agreed to use its reasonable business
efforts to:
o preserve its business organizations;
o retain the services of its officers, agents and employees; and
o maintain satisfactory existing business relationships.
During the interim period between signing the merger agreement and the
completion of the merger, Intrav has agreed that it will not take certain
actions without the prior written consent of Diamond Holding. More specifically,
it has agreed not to:
o amend its organizational documents;
o issue, sell, dispose of or encumber any shares of capital stock,
options or warrants to acquire any shares of such capital stock;
o declare or pay dividends or recapitalize or redeem capital shares,
except for a quarterly dividend not in excess of $0.125 per share
payable to shareholders of record on September 30, 1999 to be paid on
October 15, 1999;
o incur any indebtedness, except for debt set forth in certain approved
budgets;
o assume or guarantee any obligations of another person;
o make any capital expenditures or loans, advances or investments in
another person, except as provided in the merger agreement;
o acquire the stock or assets of, or merge or consolidate with, any
other person or business;
o voluntarily incur any material liability or obligation;
o sell, lease or encumber property or assets;
o increase any compensation or benefits payable, except for changes that
are required under certain material contracts and increases in the
ordinary course consistent with past practice of the lesser of 15% of
the current compensation or $10,000 per annum, or increase in any
manner the compensation of any director, except that Mr. Duynhouwer's
annual salary will increase by $15,194 as of August 1, 1999;
o enter into, establish, amend, or make any material interpretation with
respect to, or terminate, any employment, consulting or related
arrangement or employee benefit plan or arrangement;
o make certain elections with respect to taxes;
o compromise, settle, forgive, cancel, grant any waiver or release
relating to or otherwise adjust any debts, claims, rights or
litigation owed to or involving Intrav or its subsidiaries, other than
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CUSIP No. 460 930 100 Schedule 13D Page 21 of 33 Pages
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in the ordinary course of business consistent with past practice,
subject to certain limitations;
o enter into or amend any lease as to real property;
o take any action, or omit to take any action, which action or omission
would result in the breach of any of Intrav's covenants,
representations or warranties or would have an material adverse effect
on Intrav;
o enter into or amend certain agreements;
o enter into, amend, modify, terminate or waive any rights under any
material contract, any material agreement or material obligation that
restricts in any material respect, its activities or the activities of
its subsidiaries, or any agreement or obligation that restricts in any
material respect any other person;
o take any action with respect to indemnification of any person;
o change accounting practices or policies; and
o adopt a plan of liquidation, dissolution, merger, consolidation, share
exchange, restructuring, recapitalization or other reorganization.
Notification of Certain Matters. Intrav is required to notify Diamond
Holding promptly if:
o Intrav receives any notice of, or other communication relating to, a
default or an event which, with notice or lapse of time or both, would
become a default under any material contract of Intrav;
o Intrav receives any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by the merger agreement;
o Intrav receives any material notice or other communication from any
governmental authority in connection with the transactions
contemplated by the merger agreement;
o an event occurs which would have a material adverse effect on Intrav;
o any litigation commences or is threatened involving or affecting
Intrav or any of its subsidiaries or affiliates, or any of their
respective properties or assets, or, to its knowledge, any employee,
agent, director or officer of Intrav or any of its subsidiaries, in
his or her capacity as such or as a fiduciary under a benefit plan of
Intrav, which, if pending on the date of the merger agreement, would
have been required to have been disclosed or which relates to the
consummation of the merger or any material development occurs in
connection with any litigation previously disclosed by Intrav; and
o any event occurs that would cause a breach by Intrav of any provision
of the merger agreement or a related agreement, including any such
breach that would occur if such event had taken place on or prior to
the date of the merger agreement.
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CUSIP No. 460 930 100 Schedule 13D Page 22 of 33 Pages
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Access to Information; Confidentiality. Intrav has agreed to give
Diamond Holding, its lenders and their respective authorized representatives, at
all reasonable times full access to all of Intrav's offices and other
facilities, to all personnel and to all contracts, agreements, commitments,
books and records, and to furnish to Acquiror financial and operating data and
other information with respect to its business, assets, liabilities, obligations
and operations as Diamond Holding reasonably requests and copies of reports or
other documents filed with the SEC or a securities exchange.
Shareholders' Meeting; Articles of Incorporation; By-Laws. Intrav has
agreed to hold a meeting of its shareholders to vote on the merger and an
amendment to its Restated Articles of Incorporation to allow for the ownership
of 25% or more of the outstanding shares of Intrav common stock by non-United
States citizens. Intrav's board of directors will present and recommend to
Intrav's shareholders that they adopt the merger agreement and approve the
merger and will use reasonable best efforts to obtain the adoption and approval
of the merger agreement and the merger by Intrav's shareholders. The board of
directors has unanimously recommended the merger and the merger agreement.
Intrav has agreed to amend its Amended and Restated By-Laws to remove Article
XV, relating to foreign ownership of Intrav common shares.
Efforts; Cooperation. Subject to the terms and conditions provided in the
merger agreement, Intrav has agreed to cooperate and use reasonable best efforts
to take, or cause to be taken, all things necessary, proper or advisable to
consummate the merger as promptly as practicable. Intrav has agreed to obtain
all consents need to complete the merger and to make all filings necessary or
proper under applicable laws and regulations to consummate and make effective
the transactions contemplated by the merger agreement, including cooperation in
the preparation and filing of a proxy statement, any required filings under the
Hart-Scott-Rodino Act.
Year 2000 Plan. Intrav is required to use all commercially reasonable
efforts to ensure that its "Year 2000" plan is completed in a timely manner.
Intrav must:
o allow Diamond Holding to monitor Intrav's Year 2000 compliance issues
and its Year 2000 plan;
o notify Diamond Holding if Intrav does not achieve, or if it reasonably
expect that it will not achieve, milestones and objectives identified
in its Year 2000 plan; and
o cooperate in good faith with Diamond Holding's efforts to cause Intrav
to be Year 2000 compliant.
Purchase of Intrav Common Shares. Subject to the Article Eleven of Intrav's
Restated Articles of Incorporation which currently restrict ownership of more
than 24.9% of Intrav's common shares by non-United States citizens, Intrav may
not prohibit Diamond Holding or any of its affiliates or associates from
purchasing Intrav common shares or entering into option, lock-up, voting or
proxy agreements or any other similar agreements with respect to Intrav common
shares at any time prior to the consummation of the merger.
Conversion of Options. Intrav must offer to modify each outstanding option
to purchase Intrav common shares exercisable on or prior to the effective time
of the merger, and cause each such option either to be exercised prior to the
effective time of the merger, or to be canceled as of the effective time of the
merger, in exchange for the option consideration described in the merger
agreement
Disposition of U.S. Flagged Vessels. Intrav has agreed to transfer or
otherwise dispose of its two U.S. flagged vessels to a person or persons as
designated by, and as directed by and on such terms and conditions as specified
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CUSIP No. 460 930 100 Schedule 13D Page 23 of 33 Pages
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by, Diamond Holding, and to register such U.S. flagged vessels in the name(s) of
the new owner(s) with an endorsement for the coastwise trade and to record all
applicable mortgages with respect to such U.S. flagged vessels with the National
Vessel Documentation Center. Intrav also agreed to enter into certain time
charters and operating agreements with respect to its vessels and a transitional
services agreement providing for certain transition services with a person, in a
form and on terms and conditions as reasonably specified by Acquiror.
Indemnification and Insurance. The merger agreement provides that the
articles of incorporation and by-laws of the surviving corporation must contain
similar provisions with respect to indemnification and exculpation from
liability set forth in the Restated Articles of Incorporation and Amended and
Restated By-Laws of Intrav. Kuoni may not, and shall cause the surviving
corporation not to, amend, repeal or otherwise modify these provisions for a
period of five years from the effective time of the merger in any manner that
would materially and adversely affect the rights of individuals who at the
effective time of the merger were directors, officers, employees or agents of
Intrav, unless such modification is required by law.
Kuoni has agreed to indemnify and hold each director and officer of Intrav
(determined as of the effective time of the merger) harmless against any costs
or expenses (including reasonable attorneys' fees), judgments, fines, losses,
claims, damages or liabilities incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to matters existing or occurring at
or prior to the effective time of the merger, whether asserted or claimed prior
to, at or after such time, to the fullest extent that Intrav would have been
permitted under Connecticut law and Intrav's certificate of incorporation or
by-laws in effect on July 16, 1999 to indemnify such person.
The merger agreement also provides that for five years after the effective
time of the merger, and to the extent available, the surviving corporation or
Kuoni will maintain officers' and directors' liability insurance with respect to
those persons who were covered by Intrav's directors' and officers' liability
insurance policy on terms and amounts no less favorable than those in effect on
the date of the merger agreement. Kuoni, however, is not required to expend in
any one year an amount in excess of 150% of the annual premiums currently paid
by Intrav for the insurance.
If Kuoni, the surviving corporation or any of its successors or assigns (1)
consolidates with or merges into any other corporation or entity and is not the
continuing or surviving corporation or entity of such consolidation or merger,
or (2) transfers all or substantially all of its properties and assets to any
person, corporation or entity, then, and in each case, proper provisions will be
made so that the successors and assigns of Kuoni or the surviving corporation,
as the case may be, assume the indemnification and insurance obligations set
forth in the merger agreement.
No Solicitation Covenant
Intrav has agreed (1) to immediately terminate any discussions or
negotiations with any parties with respect to a Takeover Proposal (as described
below) and (2) that neither Intrav nor any of its officers, directors,
employees, subsidiaries or advisors will, directly or indirectly through another
person:
o solicit, initiate or encourage or take any other action designed to
facilitate any Takeover Proposal; or
o participate in any discussions or negotiations regarding any Takeover
Proposal.
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CUSIP No. 460 930 100 Schedule 13D Page 24 of 33 Pages
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However, if prior to receipt of shareholder approval for the merger Intrav
receives a Takeover Proposal that was not solicited by Intrav or its
representatives or a breach of the no solicitation provision, Intrav may:
o furnish information regarding Intrav to another person (pursuant to a
customary confidentiality agreement containing customary standstill
provisions as determined by Intrav after consultation with its outside
counsel); and
o participate in negotiations regarding such Takeover Proposal.
Provided, however, that before taking either of the two actions described above,
Intrav's board of directors must reasonably determine in good faith, after
receiving the written advice of outside counsel and an independent financial
advisor, that failing to take such action could reasonably be expected to be a
breach of its fiduciary duties to Intrav's shareholders under applicable law.
The term "Takeover Proposal" means any inquiry, proposal or offer relating
to any direct or indirect acquisition or purchase of:
o 15% or more of the assets of Intrav or any of its subsidiaries or 5%
or more of any class of equity securities of Intrav or any of its
subsidiaries;
o any tender offer or exchange offer that could result in any person
owning 15% or more of any class of equity securities of Intrav or any
of its subsidiaries; or
o any merger, consolidation, share exchange, business combination,
recapitalization, liquidation, dissolution or similar transaction
involving Intrav or any of its subsidiaries (other than the merger
with Kuoni); or
o any other transaction reasonably expected to impede, interfere with,
prevent or materially delay the merger or which could reasonably be
expected to dilute materially the benefits to Kuoni of the
transactions contemplated by the merger agreement.
The merger agreement requires Intrav to recommend to its shareholders that
they approve the merger agreement and the transactions contemplated by the
merger agreement. The Intrav board and its committees are prohibited from:
o withdrawing or modifying, or proposing publicly to withdraw or modify,
the approval of the Intrav board or its recommendation to its
shareholders;
o approving or recommending, or proposing publicly to approve or
recommend, any Takeover Proposal; and
o causing Intrav to enter into any letter of intent, agreement in
principal, acquisition agreement or other agreement related to any
Takeover Proposal.
However, in response to a Superior Proposal (as described below), which was not
solicited by Intrav or did not otherwise result from a breach of the no
solicitation provision of the merger agreement, the Intrav board of directors
may:
o withdraw or modify its approval of the merger and the merger
agreement;
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CUSIP No. 460 930 100 Schedule 13D Page 25 of 33 Pages
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o approve or recommend the Superior Proposal; or
o terminate the merger agreement;
but, only
o at a time before receipt of shareholder approval of the merger and
after the tenth business day following Diamond Holding's receipt of
written notice advising Diamond Holding that the Intrav board of
directors has received a Superior Proposal, specifying the material
terms and conditions of such Superior Proposal and identifying the
person making the Superior Proposal; and
o if Intrav's board of directors determines in good faith, after
receiving the written opinions of outside counsel and an independent
financial advisor, that it has received a Takeover Proposal that
constitutes a Superior Proposal and that failing to take such action
could reasonably be expected to be a breach of its fiduciary duties to
Intrav's shareholders under applicable law.
The term "Superior Proposal" means any proposal made by a third party to
acquire, directly or indirectly, for consideration consisting of cash and/or
securities:
o 100% of the shares of Intrav common stock then outstanding; or
o all or substantially all the assets of Intrav
on terms that the Intrav board of directors determines in its good faith
judgment, based upon a written opinion of an independent financial advisor, to
be materially more favorable to Intrav's shareholders than the merger and for
which financing, to the extent required, is then committed or which, in the good
faith judgment of the Intrav board of directors, is reasonably capable of being
obtained by the third party.
In addition, Intrav is required to immediately advise Diamond Holding of
any request for information or of any Takeover Proposal, the material terms and
conditions of any such request or Takeover Proposal and the identity of the
person making such request or Takeover Proposal. Intrav is required to keep
Diamond Holding fully informed of the status and details of any such request or
Takeover Proposal. Intrav has agreed to negotiate in good faith with Diamond
Holding if, after Intrav receives a Superior Proposal, Diamond Holding desires
to continue negotiations with Intrav with respect to the merger.
The merger agreement does not prohibit Intrav from (1) taking and
disclosing to its shareholders a position consistent with its obligations under
the merger agreement with respect to a tender offer required by law or (2)
making any disclosure consistent with its obligations under the merger agreement
to its shareholders if, in the good faith judgment of the board of directors,
after receipt of advice from outside counsel, failure to disclose would be
inconsistent with applicable law. The board of directors, however, cannot
withdraw or modify its position or recommendation of the merger contemplated by
the merger agreement.
Termination and Termination Fees
The merger agreement may be terminated at any time prior to the effective
time of the merger, whether before or after shareholder approval:
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CUSIP No. 460 930 100 Schedule 13D Page 26 of 33 Pages
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o by mutual written consent of Diamond Holding and Intrav;
o by either Diamond Holding or Intrav:
-- if the merger has not been completed by March 31, 2000; provided,
however, that either party may extend such date to a date no
later than June 30, 2000, if such party determines that
additional time is necessary in connection with obtaining certain
specified consents from governmental authorities; and provided,
further, that the right to terminate the merger agreement will
not be available to any party whose failure to perform any of its
obligations under the merger agreement results in the failure of
the merger to be completed by such time;
-- if the special meeting has concluded and the approval of the
shareholders of Intrav has not been obtained; or
-- if any court of competent jurisdiction or other governmental
authority shall have issued an order, decree or ruling or taken
any other action permanently enjoining, restraining or otherwise
prohibiting the consummation of the merger and such order, decree
or ruling or other action shall have become final and
nonappealable;
o by Diamond Holding, if Intrav:
-- breaches any of its representations modified by materiality or
material adverse effect;
-- materially breaches any of its representations not modified by
materiality or material adverse effect; or
-- breaches or fails to perform any material covenant or agreement
contained in the merger agreement about which Diamond Holding
notifies Intrav, if Intrav fails to cure or otherwise resolve
such breach or failure to perform to the reasonable satisfaction
of Diamond Holding within 20 days after Intrav receives Diamond
Holding's notice;
o by Intrav, if Diamond Holding:
-- breaches any of its representations modified by materiality or
material adverse effect;
-- materially breaches any of its representations not modified by
materiality or material adverse effect; or
-- breaches or fails to perform any material covenant or agreement
contained in the merger agreement about which Intrav notifies
Diamond Holding, if Diamond Holding fails to cure or otherwise
resolve such breach or failure to perform to the reasonable
satisfaction of Intrav within 20 days after Diamond Holding
receives Intrav's notice;
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CUSIP No. 460 930 100 Schedule 13D Page 27 of 33 Pages
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o by Diamond Holding, if Intrav breaches the no solicitation and
shareholder recommendation provisions of the merger agreement;
o by Diamond Holding, if Intrav's board of directors withdraws or
modifies in a manner adverse to Diamond Holding its approval or
recommendation of the merger, or failed to reconfirm its
recommendation within ten days of a request to do so, or if Intrav's
board of directors approves or recommends a Takeover Proposal;
o by Diamond Holding, if Intrav's shareholders do not approve an
amendment to Intrav's Restated Articles of Incorporation, or Intrav's
board of directors does not amend Intrav's Amended and Restated
By-Laws, in each case to remove the restriction on foreign ownership
of Intrav common shares;
o by Intrav, if Intrav's board of directors exercises its fiduciary
duties in connection with a Superior Proposal in accordance with the
procedures set forth in the merger agreement.
If either Intrav or Diamond Holding terminates the merger agreement,
the merger agreement will become void and have no effect, without any liability
or obligation on the part of Intrav, Kuoni, Diamond Holding or Diamond
Acquisition Subsidiary, other than the following provisions, which survive
termination:
o the obligation of the parties to keep all non-public information
connected with the merger confidential and the agreement among the
parties to consult with each other before issuing press releases or
other public statements and to only issue press releases or other
public statements if required by law or a national securities
exchange;
o the agreement of the parties to each pay their own fees and expenses
(except in certain circumstances), and Intrav's obligation to pay
Diamond Holding a termination fee in certain circumstances;
o the agreement of the parties that the merger agreement is to be
governed by Missouri law and any disputes arising out of the merger
agreement are to be heard in the United States District Court for the
Eastern District of Missouri or the Circuit Court of St. Louis County,
Missouri;
o Intrav's obligation to transfer or otherwise dispose of its two
non-U.S. flagged vessels as directed by Diamond Holding and to enter
into certain time charter, operating and transition services
agreements;
o Intrav's obligation to:
o propose and recommend to its shareholders, and use reasonable
best efforts to obtain any necessary adoption and approval by its
shareholders, an amendment to its Restated Articles of
Incorporation; and
o amend its Amended and Restated By-Laws;
in each case, in order to allow ownership by non-United States citizens of
more than 24.9% of Intrav's common shares;
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CUSIP No. 460 930 100 Schedule 13D Page 28 of 33 Pages
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o the effects of termination as described under this "Termination and
Termination Fees" section.
If Diamond Holding terminates the merger agreement solely due to a breach
of any of its representations modified by materiality or material adverse effect
or materially breaches any of its representations not modified by materiality or
material adverse effect, and such breach occurred in the ordinary course of
Intrav's business, then Intrav is obligated to pay to Diamond Holding, as
liquidated damages, a fee of $1,000,000.
Intrav is obligated to pay to Diamond Holding a termination fee of
$8,000,000 if the merger agreement is terminated:
o after a bona fide Takeover Proposal (or an announced intention to make
a Takeover Proposal) has been made known to Intrav, its shareholders
or announced publicly
o by Diamond Holding because the merger was not consummated by
March 31, 2000; or
o by Intrav because the merger was not consummated prior to the
earlier of (i) June 30, 2000 or (ii) one additional month
following March 31, 2000 fore each bona fide Takeover Proposal
received by Intrav;
o by either Diamond Holding or Intrav if Intrav's shareholders do not
approve the merger at a meeting duly convened to approve the merger;
o by Intrav if Intrav's board of directors exercises its fiduciary
duties in connection with a Superior Proposal in accordance with the
procedures set forth in the merger agreement;
o by Diamond Holding
o if Intrav breaches any of its representations modified by
materiality or material adverse effect or materially breaches any
of its representations not modified by materiality or material
adverse effect (except if such breach occurred in the ordinary
course of Intrav's business, in which case Intrav would be
obligated to pay a $1,000,000 fee, as described above);
o if Intrav breaches the no solicitation covenant;
o if Intrav's board of directors withdraws or modifies in a manner
adverse to Diamond Holding its approval or recommendation of the
merger, or failed to reconfirm its recommendation within ten days
of a request to do so, or if Intrav's board of directors approves
or recommends a Takeover Proposal; or
o if Intrav's shareholders do not approve an amendment to Intrav's
Restated Articles of Incorporation by March 31, 2000, or Intrav's
board of directors does not amend Intrav's Amended and Restated
By-Laws, in each case to remove the restriction on foreign
ownership of Intrav common shares; or
o by either Diamond Holding or Intrav if Stifel, Nicolaus & Company,
Incorporated withdraws its fairness opinion after Intrav receives a
bona fide Takeover Proposal.
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CUSIP No. 460 930 100 Schedule 13D Page 29 of 33 Pages
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Additional Agreements
Advisory Committee. After the merger, the surviving corporation will form
an Advisory Committee, and each of Intrav's current non-employee directors other
than Barney A. Ebsworth will be offered the opportunity to serve as an Advisory
Director for a two-year term. Each Advisory Director will receive an annual fee
of $12,000, a fee of $600 for each Advisory Committee meeting attended and a
$5,000 annual credit for traveling on the surviving corporation's travel
programs.
Expenses. All costs and expenses incurred in connection with the merger,
the merger agreement and the transactions contemplated thereby will be paid by
the party incurring those costs or expenses.
Amendment; Waiver. To the extent permitted by law, the merger agreement may
be amended by the parties at any time before or after the approval of the merger
agreement by the Intrav shareholders. The failure of any party to the merger
agreement to assert its rights under the merger agreement or otherwise will not
constitute a waiver of these rights.
Dissenters' Rights
Under Section 351.455 of The General and Business Corporation Law of
Missouri, shareholders who do not wish to accept the merger consideration to
which they are entitled pursuant to the terms of the merger agreement have the
right to make written demand for payment of the "fair value" of their shares.
Any shareholder who wishes to object to the merger agreement and make
written demand for payment of the fair value of his or her shares must mail or
deliver to Intrav a written objection to the merger agreement, which must be
received by Intrav prior to or at the special meeting of the shareholders of
Intrav. In addition, the shares covered by such demand for payment must not be
voted in favor of the merger agreement. A failure to vote will not affect the
rights to make written demand for payment of the fair value of shares of Intrav
common stock, but a vote in favor of the merger agreement, in person or by
proxy, will constitute a waiver of a shareholder's right to make written demand
for payment of the fair value of shares of Intrav common stock and will void any
previous written objection. The mere filing of a proxy directing a vote against
the merger agreement, or a purported objection to the merger agreement submitted
on a proxy card, does not constitute, and will not be treated by Intrav as, a
written objection within the meaning of Section 351.455.
Within 20 days of the effective date of the merger, any objecting
shareholder must, in addition, make written demand on the surviving corporation
to the merger, which will be Intrav, for payment of the fair value of his or her
shares of common stock as of the day prior to the date on which the shareholder
vote approving the merger agreement was taken. This demand must state the number
and class of the dissenting shares owned by the dissenting shareholder. Any
shareholder who fails to make this demand within the 20 day period is
conclusively presumed to have consented to the merger agreement and shall be
bound by its terms. Intrav, as the surviving corporation, will promptly notify
any dissenting shareholder of the effective date of the merger.
If a dissenting shareholder and the surviving corporation agree as to the
fair value of his or her dissenting shares within 30 days after the effective
date of the merger, payment for such dissenting shares will be made within 90
days after the effective date of the merger upon the surrender of the
certificates representing such dissenting shares. If the dissenting shareholder
and the surviving corporation do not agree as to the fair value of such
dissenting shares within such 30 days, then, in order to preserve his or her
statutory rights, the dissenting shareholder must, within 60 days after the
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CUSIP No. 460 930 100 Schedule 13D Page 30 of 33 Pages
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expiration of the 30 day period, file a petition in a court of competent
jurisdiction within the county in which the registered office of the surviving
corporation is located (St. Louis County, Missouri), asking for a finding and
determination of the fair value of such dissenting shares, and shall be entitled
to judgment against the surviving corporation for the amount of such fair value
as of the day prior to the date on which the vote was taken approving the merger
agreement, together with interest thereon to the date of such judgment. By
statute, the right of a dissenting shareholder to be paid the fair value of his
or her dissenting shares shall cease if and when the merger is abandoned.
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CUSIP No. 460 930 100 Schedule 13D Page 31 of 33 Pages
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APPENDIX C
Summary of the Majority Shareholder Agreement
On July 16, 1999, Kuoni Reisen Holding AG, Diamond Holding Delaware,
Inc. and Diamond Acquisition Subsidiary Missouri, Inc. entered into a majority
shareholder agreement with the majority shareholder and Barney A. Ebsworth.
Under the majority shareholder agreement, the majority shareholder granted
Kuoni, Diamond Holding and Diamond Acquisition Subsidiary (the "optionees") an
irrevocable option to purchase, for $21.32 per share, up to 24.9% of the total
number of shares of Intrav common stock outstanding on the date of exercise of
the option (the "option").
The optionees may exercise the option, in whole or in part, at any time if
either of the following occurs:
o the majority shareholder fails to vote all of its shares of Intrav
common stock in favor of the merger and the merger agreement in
accordance with the terms of the majority shareholder agreement; or
o a "Takeover Proposal" (as defined in the merger agreement; see
Appendix B to this Schedule 13D) occurs prior to the termination of
the merger agreement.
Diamond Holding will send a notice to Intrav if it wishes to exercise
the option. If prior notification to or approval of any governmental authority
is required in connection with the exercise of the option, Diamond Holding will
cooperate in the filing of the required notice or application for approval and
the obtaining of such approval. Diamond Holding's purchase of Intrav's common
shares will close after receipt of such regulatory approvals (and any mandatory
waiting periods).
The option will terminate on the earlier of:
o six months following the termination of the merger agreement in
accordance with its terms, or
o the effective time of the Merger.
However, if the merger agreement is terminated: (i) as a result of Intrav's
board of directors exercising certain rights under the merger agreement, or (ii)
as a result of Intrav's financial advisor withdrawing its fairness opinion, or
(iii) as a result of a material breach of the merger agreement following receipt
of a Takeover Proposal, then the merger agreement will not be deemed to
terminate until the majority shareholder fulfills its obligations to restructure
the ownership of the Intrav's two U.S. Flagged vessels, as described below.
The majority shareholder agreed to vote all of its shares of Intrav common
stock in favor of the merger and the merger agreement and in favor of deleting
Article Eleven from Intrav's Articles of Incorporation at any meeting of the
shareholders of the Company held for any such purposes. Article Eleven of
Intrav's Restated Articles of Incorporation currently restricts non-United
States citizens from owning more than 24.9% of the total outstanding shares of
Intrav's common stock. If the merger agreement is terminated as a result of (i),
(ii) or (iii) of the preceding paragraph, the majority shareholder will promptly
cause Intrav to restructure the ownership of its U.S. flagged ships to allow the
ownership 25% or more of Intrav's common stock by a non-United States citizen.
The majority shareholder agreement contains representations and warranties
of the majority shareholder, including:
o record and beneficial ownership of Intrav's common stock;
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CUSIP No. 460 930 100 Schedule 13D Page 32 of 33 Pages
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o capacity of the majority shareholder;
o except for the filing under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and securities filings, absence
of any other required consents, permits or approvals of any state or
federal public body or authority for execution of the agreement or
consummation of the contemplated transactions;
o absence of any conflict with or breach of any agreement to which the
majority shareholder is bound as a result of the contemplated
transactions; and
o absence of any liens or encumbrances on the shares owned by the
majority shareholder.
The majority shareholder agreement also contains representations and
warranties of Diamond Holding and Diamond Acquisition Subsidiary, including
corporate authority and investment representations.
Each of the majority shareholder and Barney A. Ebsworth covenanted not to:
o directly or indirectly, solicit in any manner proposals from third
parties that may lead to a Takeover Proposal. Notwithstanding the
foregoing, Mr. Ebsworth may vote as a director of Intrav in connection
with the board of directors exercising certain rights under the merger
agreement;
o directly or indirectly, transfer any shares of Intrav common stock or
any interest therein unless Intrav's board of directors approves a
"Superior Proposal" (as defined in the merger agreement; see Appendix
B to this Schedule 13D) following the exercise of certain rights under
the merger agreement and so long as Intrav has not breached the merger
agreement;
o except as contemplated by the majority shareholder agreement, grant
any proxies or powers of attorney, deposit any of the shares of Intrav
common stock into a voting trust or enter into a voting agreement with
respect to any of the shares of Intrav common stock; or
o take any action that would make any representation or warranty of the
majority shareholder untrue or incorrect or which would prevent the
majority shareholder from performing its obligations under the
majority shareholder agreement or the optionees from enjoying the
benefits of the option.
The majority shareholder and Mr. Ebsworth must inform Diamond Holding
and Diamond Acquisition Subsidiary promptly upon receipt any inquiry or proposal
regarding any Takeover Proposal and provide a summary of the details thereof.
If, during the time the option is exercisable, the majority shareholder
o transfers any of the shares of Intrav common stock (including a
transfer pursuant to a merger of Intrav with another entity), or the
majority shareholder or Intrav agree to a transaction that would
result in such transfer of the shares of Intrav common stock, and
o receives as consideration for such transfer of shares of Intrav common
stock an amount that exceeds $21.32 per share,
then the majority shareholder will pay to Diamond Holding the excess amount
received. If the aggregate consideration received by Diamond Holding does not
consist of cash in an amount necessary to satisfy the foregoing obligation, the
optionees may, at their discretion, receive the excess amount in cash or, so
long as the majority shareholder would not suffer any adverse tax consequences,
in any non-cash consideration received in the transaction.
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CUSIP No. 460 930 100 Schedule 13D Page 33 of 33 Pages
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The majority shareholder also (i) waived any rights of appraisal or rights
to dissent from the merger that it may have and (ii) agreed with, and covenanted
to, Diamond Holding not to request that Intrav register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
its shares of Intrav common stock, unless such transfer is made in compliance
with the majority shareholder agreement.
Exhibit 99.(c)
July 16, 1999
Mr. Paul H. Duynhouwer
c/o Intrav, Inc.
7711 Bonhomme Avenue
St. Louis, Missouri 63105-1961
Re: Certain actions with respect to Newco A and Newco B
Dear Paul,
This letter sets forth an agreement between you, Kuoni Reisen Holding AG, a
Swiss corporation incorporated in the Canon of Zurich, Switzerland ("Parent")
and Diamond Holdings Delaware, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Diamond"). This letter agreement is being entered into
concurrently with and as an inducement to the execution of that certain
Agreement and Plan of Merger dated as of July 16, 1999 (the "Merger Agreement")
by Intrav, Inc., a Missouri corporation ("Sapphire"), Parent, Diamond and
Diamond Acquisition Subsidiary Missouri, Inc., a Missouri corporation and
wholly-owned subsidiary of Diamond ("Acquisition Subsidiary").
As you know, because Parent is not a U.S. citizen eligible to own vessels
for operating in the U.S. coastwise trade, prior to the consummation of the
acquisition, Sapphire must restructure the ownership and operation of its two
U.S. flagged vessels so that they will continue to be owned and operated by U.S.
citizens following the merger. It may also be advisable from an economic
perspective for the operator of Sapphire's two non-U.S. flagged vessels to be
the same as the operator of the two U.S. flagged vessels. Because of the breadth
and depth of your experience in the ownership and operation of Sapphire's
vessels as Sapphire's President and Chief Executive Officer and your nearly 40
years of experience in the travel and cruise ship industries, it is a logical
solution for you to remain involved with ongoing ownership and operation of
Sapphire's vessels.
Below we will describe the currently expected structure of the ownership
and operation of the vessels, and refer to certain proposed agreements regarding
such structure. It may be advisable to change such proposed structure prior to
the consummation of the merger. But whatever the exact structure, the nature of
your involvement in the ownership and operation of the vessels currently owned
by Sapphire, and the provision of transitional consulting services, would have
the following characteristics:
1. You would invest $300,000 and receive a 15% return on such investment
each year.
2. You will have ownership interests in and will manage the entities that
own and operate the two U.S. flagged vessels and that operate the two
non-U.S. flagged vessels.
<PAGE>
3. One of these entities managed by you shall be responsible for
providing transitional consulting services to Sapphire following
closing under a transitional services agreement. 4. The aggregate
amounts received by you, whether as the return on your investment
described above, as compensation for your management of or services
for the companies that own and operate the vessels, as distributions
on your ownership interests in those companies, or otherwise, would be
structured to ensure that you receive not less than the following
amounts during each of the first three years following the closing:
year one--$400,000; year two--$300,000; year three--$215,000. 5. On
six months' notice given at any time after one year following the
closing, you would have the right to terminate your ownership
interests in, and your management of, the companies that own and
operate the vessels, and to transfer your ownership interests to a
purchaser who would preserve the eligibility of the vessels for
operation in the U.S. coastwise trade. The transaction documents would
be structured to ensure that you recovered your initial investment in
such a sale. No termination fee would be payable by you upon such
termination. 6. At the same time, we would have the right, on six
months' notice given at any time after one year following the closing,
to designate a purchaser of your ownership interests in the companies
that own and operate the vessels, who would preserve the eligibility
of the vessels for operation in the U.S. coastwise trade and to whom
you would be required to sell your ownership interests. The
transaction documents would be structured to ensure that you recovered
your initial investment in such a sale. No termination fee would be
payable by us upon such ownership changes. 7. We expect that you would
require the companies owning and operating the vessels to provide you
with fringe benefits substantially comparable to those that you are
currently receiving as the President and Chief Executive Officer of
Sapphire. 8. You will be indemnified with respect to risks attendant
upon the ownership and operation of the vessels.
We currently expect that the restructuring of the ownership and operation
of the two U.S. flagged vessels owned by Sapphire would take the form of the
following:
A. Immediately prior to closing, Sapphire will sell the two U.S. flagged
vessels for book value to a new entity ("Newco A"), of which you would
own 75.1% of the equity interest and Sapphire or an affiliate would
own 24.9%, or to two new entities wholly owned by Newco A (the
"Purchasers"). The Purchasers would borrow the difference between the
purchase price of the vessels and the equity contributions.
B. Each Purchaser would time charter its vessel to Sapphire or an entity
wholly owned by Sapphire (the "Time Charterer") under a long-term Time
Charter in substantially the form set forth as Exhibit 4.18(a) to the
Merger Agreement.
<PAGE>
C. In order to fulfill its obligations to the Time Charterer under the
Time Charter, each Purchaser would enter into an Operating Agreement
with another new entity ("Newco B") in substantially the form set
forth as Exhibit A to the Time Charter. You would own 75.1% of the
equity interest of Newco B and Sapphire or an affiliate would own
24.9%. D. Newco B may also enter into contracts with Sapphire or
entities wholly owned by Sapphire for the operation of the two
non-U.S. flagged vessels. E. Newco B would enter into a transitional
services contract with Sapphire on terms and conditions to be mutually
agreed upon by the parties.
By execution and delivery of this letter agreement, you hereby agree to
take the actions reasonably necessary to facilitate and complete the
transactions contemplated in paragraphs a) through e) above or such other
transactions as we reasonably may determine to be advisable regarding the
ownership and operation of the vessels in conformance with applicable law, and
that have the economic characteristics for you described in paragraphs 1 through
8 above.
This letter agreement is contingent upon the consummation of the
acquisition contemplated by the Merger Agreement, and does not obligate us to
consummate the Merger Agreement, or to waive any conditions to our obligations
therein.
If the foregoing is acceptable, please indicate your agreement by
countersigning this letter in the space provided below and returning one fully
executed original to the above address.
Very truly yours,
DIAMOND HOLDINGS KUONI REISEN HOLDING AG
DELAWARE, INC.
By /s/ Peter Diethelm
By /s/ Peter Diethelm Name: Peter Diethelm
Name: Peter Diethelm Title: Chief Executive Officer
Title: Chief Executive Officer
and /s/ Stephan Hitz
Name: Stephan Hitz
Title: Director
Agreed and accepted this 16th day of July, 1999.
/s/ Paul H. Duynhouwer
Paul H. Duynhouwer
