<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
OF
BAAN COMPANY N.V.
AT
E2.85 NET PER SHARE
BY
INVENSYS HOLDINGS LIMITED
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
INVENSYS PLC
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 3:00 P.M. AMSTERDAM
TIME (9:00 A.M., NEW YORK CITY TIME), ON THURSDAY, JULY 13, 2000,
UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS HEREINAFTER DEFINED) OF THE
OFFER THAT NUMBER OF SHARES THAT WOULD WHEN ADDED TO THE SHARES PREVIOUSLY
ACQUIRED BY INVENSYS HOLDINGS LIMITED, INVENSYS PLC, AND THEIR SUBSIDIARIES
REPRESENT AT LEAST 95% OF THE OUTSTANDING SHARES. SEE SECTIONS 12 AND 14.
------------------------
EACH OF THE BOARD OF MANAGEMENT AND THE SUPERVISORY BOARD OF BAAN COMPANY N.V.
("BAAN" OR THE "COMPANY") HAS UNANIMOUSLY APPROVED THE OFFER AND DETERMINED THAT
THE TERMS OF THE OFFER ARE IN THE BEST INTERESTS OF THE COMPANY AND ITS
SHAREHOLDERS AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER ALL OF THEIR SHARES IN THE OFFER.
------------------------
THIS OFFER IS MADE IN ACCORDANCE WITH DUTCH LAW, IN PARTICULAR WITH THE
SER-BESLUIT FUSIEGEDRAGSREGELS 1975 ("DUTCH MERGER CODE").
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF
THIS TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED
IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
------------------------
The date of this Offer to Purchase is June 14, 2000.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
QUESTIONS AND ANSWERS ABOUT THE OFFER....................... ii
IMPORTANT INFORMATION: HOW TO TENDER YOUR SHARES............ vi
INTRODUCTION................................................ 1
THE OFFER................................................... 3
Section 1. Terms of the Offer; Expiration Date........... 3
Section 2. Acceptance for Payment and Payment for
Shares................................................. 5
Section 3. Procedure for Tendering Shares................ 6
Section 4. Withdrawal Rights............................. 9
Section 5. Certain Dutch and U.S. Federal Income Tax
Consequences........................................... 10
Section 6. Price Range of Shares......................... 12
Section 7. Effect of the Offer on the Market for Shares;
Stock Quotation; Exchange Act Registration and
Margin Securities............................. 13
Section 8. Certain Information Concerning the Company.... 14
Section 9. Certain Information Concerning Parent and
Offeror................................................ 22
Section 10. Source and Amount of Funds.................... 23
Section 11. Background of the Offer....................... 23
Section 12. Purpose of the Offer; Delisting and
Deregistration of Shares; Plans for the
Company; the Transaction Documents............ 24
Section 13. Dividends and Distributions................... 35
Section 14. Certain Conditions to the Offer............... 37
Section 15. Certain Regulatory and Legal Matters.......... 37
Section 16. Fees and Expenses............................. 38
Section 17. Miscellaneous................................. 38
Section 18. Other Statements Required by the Dutch Merger
Code................................................... 39
Schedule I -- Certain Information Concerning the Directors
and Officers of Parent and Offeror............ S-1
Annex I -- Index of Defined Terms......................... I-1
Annex II -- Price Range of Shares.......................... II-1
Annex III -- English Translation of Dutch Language Summary
Provided to Shareholders in The Netherlands... III-1
</TABLE>
i
<PAGE> 3
QUESTIONS AND ANSWERS ABOUT THE OFFER
Q: WHO IS OFFERING TO BUY MY BAAN SHARES?
A: The offer is being made by Invensys Holdings Limited, a private limited
company organized under the laws of England and Wales. We are an indirect
wholly owned subsidiary of Invensys plc, a public limited company organized
under the laws of England and Wales. Invensys plc is a global electronics
and engineering company and a worldwide leader in automation and controls.
To read more about Invensys Holdings Limited and Invensys plc, see page 21.
Q: WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
A: We are making the offer for any and all of the outstanding common shares of
Baan. There are no other outstanding equity securities of Baan. The offer
does not relate to Baan's convertible bonds and this offer to purchase is
not an offer to purchase Baan's convertible bonds.
Q: HOW MUCH IS THE BIDDER OFFERING TO PAY AND WHAT IS THE FORM OF PAYMENT?
A: We are offering to pay E2.85 per Baan share in cash, without interest. Each
holder of shares registered in the United States will receive cash payments
in U.S. dollars rather than in euros unless the holder elects to receive
cash payments in euros instead of U.S. dollars.
For more information on payments for shares, see page 5.
Q: DO WE HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
A: Yes. Invensys plc will provide us with sufficient funds to purchase tendered
Baan shares. Invensys plc will provide these funds to us from available
working capital and existing credit lines.
Q: IS OUR FINANCIAL CONDITION RELEVANT TO YOUR DECISION ON WHETHER TO TENDER IN
THE OFFER?
A: No. We do not believe that our financial condition is important to your
decision. We base this conclusion on several factors. We are paying you cash
for your shares. The offer is not subject to any financing condition. The
offer is for any and all of the outstanding common shares of Baan.
Q: HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
A: You have until the expiration of the offer at 3:00 p.m. Amsterdam time (9:00
a.m. New York City time) on Thursday, July 13, 2000 to tender your Baan
shares. We will purchase all properly tendered shares on the expiration date
if the conditions to the offer are then met. After making these purchases,
we will continue for a limited period of time to purchase shares submitted
to us in accordance with applicable U.S. and Dutch law. On the other hand,
if the conditions to the offer are not met on the expiration date, we may
terminate or extend the offer.
For more information on when you can tender your shares in the offer, see
pages 3 through 4.
Q: HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
A: If the offer is extended past 3:00 p.m. Amsterdam time (9:00 a.m. New York
City time) on July 13, 2000, we will make a public announcement of the new
expiration date.
Q: IS THERE GOING TO BE A SHAREHOLDERS MEETING IN CONNECTION WITH THE OFFER?
A: Yes. Baan has scheduled an informational extraordinary shareholders meeting
for June 29, 2000. While no shareholder vote or action is to be taken with
respect to the offer at the meeting, the Company's management is expected to
make a presentation on the terms of, and answer questions regarding, the
offer.
ii
<PAGE> 4
Q: WHAT ARE THE MOST SIGNIFICANT CONDITIONS OF THE OFFER?
A: The most significant condition of the offer is that at least 95% of the
outstanding Baan shares be previously acquired by us or be validly tendered
and not withdrawn at the expiration date of Thursday, July 13, 2000.
For a complete discussion of the conditions to the offer, see pages 34
through 36.
Q. HOW MANY BAAN SHARES DOES INVENSYS OWN?
A. As of the close of business on June 12, 2000, Invensys Holdings Limited,
Invensys plc, and their subsidiaries owned 46,306,326 Baan shares, which
represented 17.3% of the aggregate outstanding shares.
Q. HAVE THE WORKS COUNCILS OF BAAN BEEN INFORMED ABOUT THE OFFER?
A: Yes. The Works Councils have been notified of the offer. On June 14, 2000,
the Central Works Council announced that the Company had received the
positive advice of the Central Works Council.
Q: HOW DO I TENDER MY SHARES?
A: If you hold your Baan shares through a custodian, bank or broker in The
Netherlands, you will by customary practice be contacted by the custodian,
bank or broker through which you hold your shares. The custodian, bank or
broker will inquire as to whether you desire to tender your shares in the
offer. If you desire to tender your shares in the offer, then you must
instruct your custodian, bank or broker to tender your shares in accordance
with the procedures of your custodian, bank or broker and in any event
before the date which will precede the expiration of the offer.
If you have Baan shares registered in the United States and hold your shares
"of record," you can tender your shares by sending the share certificates
representing the tendered shares and the enclosed letter of transmittal to
the U.S. depositary, Morgan Guaranty Trust Company of New York, at the
address listed in the enclosed letter of transmittal and the back cover of
this offer to purchase. If you have Baan shares registered in the United
States and your broker holds your shares in "street name" for you, you must
direct your broker to tender your shares. Please contact your broker.
For a complete discussion of how to tender your shares, see pages 6 through
9.
Q: UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
A: You can withdraw tendered Baan shares at any time prior to the expiration of
the offer at 3:00 p.m. Amsterdam time (9:00 a.m. New York City time) on
Thursday, July 13, 2000. If the stated expiration date of the offer is
extended, you can withdraw tendered shares at any time prior to the new time
and date of expiration.
Q: HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
A: If you have directed your custodian, bank or broker in The Netherlands to
tender your shares, you will need to contact your custodian, bank or broker
and comply with their requirements for withdrawing shares. If you have
tendered your share certificates directly to Morgan Guaranty Trust Company
of New York you can withdraw shares that you have already tendered by
sending a notice of withdrawal to the appropriate depositary.
For a complete discussion of how to withdraw previously tendered shares, see
pages 9 through 10.
iii
<PAGE> 5
Q: WHEN WILL THE OFFER BE COMPLETED?
A: If all of the conditions have been satisfied, the offer will expire on July
13, 2000 and the closing would occur promptly thereafter. If the conditions
have not been satisfied by July 13, 2000, we may extend or terminate the
offer.
Q: WHEN WILL I RECEIVE PAYMENT FOR MY SHARES?
A: As soon as practicable after the offer is completed. If you hold your shares
through a custodian, bank or broker in The Netherlands, your custodian, bank
or broker will distribute the cash payment. If you are a holder of shares
registered in the United States, Morgan Guaranty Trust Company of New York
will distribute to each holder the cash payment.
Q: WHAT DO THE BOARD OF MANAGEMENT AND SUPERVISORY BOARD OF BAAN THINK OF THE
OFFER?
A: The board of management and supervisory board of Baan both unanimously
recommend the offer. The members of the board of management and the
supervisory board have indicated they intend to accept the offer with
respect to the Baan shares they hold.
For a more detailed description of the board of management's and supervisory
board's recommendations, see page 1.
Q: WHY ARE THE BOARD OF MANAGEMENT AND SUPERVISORY BOARD OF BAAN RECOMMENDING
THE OFFER?
A: The board of management and supervisory board of Baan have both determined
that the offer is in the best interests of Baan and its shareholders. The
board of management negotiated the terms of the offer and recommended that
the supervisory board approve the offer.
Q: DID THE BOARD OF MANAGEMENT AND SUPERVISORY BOARD OF BAAN RECEIVE AN OPINION
REGARDING THE FAIRNESS OF THE OFFER?
A: Yes. The board of management and supervisory board of Baan received a
written opinion, dated May 30, 2000, from Lazard Freres & Co. LLC to the
effect that, as of that date and subject to the qualifications and
assumptions set forth in that opinion, the consideration to be received by
the holders of Baan shares pursuant to the offer was fair, from a financial
point of view.
Q: WHAT WILL HAPPEN IF NOT ALL OF THE OUTSTANDING BAAN SHARES ARE TENDERED IN
THE OFFER?
A: If we acquire at least 95% of the outstanding Baan shares, we intend to
pursue a statutory buy out procedure (uitkoopprocedure) to seek an order
requiring the sale to us of the shares held by the remaining shareholders
under Dutch law. We intend to pay in cash the same per share consideration
in the statutory buy out procedure as we pay in the offer; however, because
the price to be paid in the statutory buy out procedure will be determined
by the Dutch court hearing the proceeding, the price may be different from
the price paid in the offer.
For more information on our intent to pursue the statutory buy out
procedure, see page 23.
Q: IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
A: If a significant number of shares are purchased in the offer, we will likely
request delisting of the Baan shares from the Amsterdam Exchanges and/or the
Nasdaq/National Market System. In addition, if you do not tender your Baan
shares pursuant to the offer, you will not be entitled to receive any
consideration for your shares from us at any time, unless we effect a
statutory buy out procedure under Dutch law or agree to acquire your shares
in accordance with applicable law.
For a more complete description of how the offer will affect Baan's shares,
see pages 13 through 14.
iv
<PAGE> 6
Q: WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
A: On May 24, 2000, the last trading day before Baan publicly confirmed it was
engaged in negotiations with a third party interested in acquiring Baan, the
reported closing sale price of Baan shares was E1.61 on the Amsterdam
Exchanges and $1 11/16 on the Nasdaq/National Market System. On May 29,
2000, the last trading day before the date Invensys and Baan reached
agreement on substantially all of the terms of the offer agreement regarding
the offer, the reported closing sales price was E2.69 on the Amsterdam
Exchanges; there was no trading on the Nasdaq/National Market System on May
29. On June 13, 2000, the last trading day before the commencement of the
offer, the reported closing sale price of Baan shares was E2.86 on the
Amsterdam Exchanges and $2 21/32 on the Nasdaq/National Market System.
For more information on the price range of Baan's shares, see page 12 and
Annex II.
Q: IF I OBJECT TO THE PRICE BEING OFFERED, WILL I HAVE APPRAISAL OR DISSENTERS'
RIGHTS?
A: No. Dutch law does not recognize the concept of appraisal or dissenters'
rights. If you object to the price, you may continue to hold your shares
subject, however, to any order issued as a result of the statutory buy out
procedure described above.
Q. IS THIS OFFER TO PURCHASE DOCUMENT BEING SENT OR BEING MADE AVAILABLE TO ALL
BAAN SHAREHOLDERS?
A. Yes. This offer to purchase is being sent or being made available to all
Baan shareholders. In addition, a Dutch language version of this Questions
and Answers section and a Dutch language summary of the offer is being made
available to all Baan shareholders in The Netherlands. An English language
version of the summary made available to all Baan shareholders in The
Netherlands is appended to this offer to purchase as Annex III.
Q: WHOM SHOULD I CONTACT IF I HAVE QUESTIONS ABOUT THE OFFER?
A: If you have more questions about the offer, you can call:
Our Information Agent:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005-4495
In the U.S. and Canada Call Toll Free (800) 848-3409
All Others Call Collect (212) 269-5550
Holders of Baan shares in The Netherlands may also contact the custodian,
bank or broker through which they hold their shares.
v
<PAGE> 7
IMPORTANT INFORMATION:
HOW TO TENDER YOUR SHARES
The Offer is being made to all holders of Shares. For purposes of this
Offer to Purchase, (i) "Dutch Shares" means Shares held in bearer form in The
Netherlands and administered through the book-entry system of The Netherlands
Central Institute for Book-Entry Securities Transactions ("NECIGEF"), and (ii)
"U.S. Registered Shares" means Shares held in certificated form and registered
in the shareholders' registry in New York City, for which Morgan Guaranty Trust
Company of New York serves as the transfer agent and registrar.
Dutch Shares. Following a public notice by Parent concerning the Offer and
the availability of this Offer to Purchase, each holder of Dutch Shares will by
customary practice be contacted by the bank or broker through which such Dutch
Shares are held (any such bank or broker, a "Custodian"). The Custodian will
inquire as to whether such holder desires to tender its Dutch Shares pursuant to
the Offer. Any holder of Dutch Shares who wishes to tender its Dutch Shares must
instruct its Custodian to that effect in accordance with the procedures of, and
in any event before the date (which will precede the Expiration Date)
established by, the Custodian.
All Custodians will notify ABN AMRO Bank N.V., in its role as receiving
agent and exchange agent in connection with the Offer (the "Dutch Depositary")
on the Expiration Date of the number of Dutch Shares tendered by their
respective clients pursuant to the Offer. By notifying the Dutch Depositary of
the number of Dutch Shares tendered by their respective clients pursuant to the
Offer, which must be in writing, the Custodians declare that they have the
offered Shares in custody and that they will deliver the Shares to the Dutch
Depositary if the Offer becomes unconditional. If Invensys Holdings Limited
accepts all tendered Dutch Shares pursuant to the Offer, then on the date
Offeror makes available to the Dutch Depositary the funds necessary to purchase
the tendered Shares (the "Closing Date") the Custodians will cause the Dutch
Shares tendered by their respective clients to be transferred in book-entry form
into the NECIGEF account of the Dutch Depositary in accordance with NECIGEF
procedures and subsequently into the account of Offeror with the Dutch
Depositary against payment of the Offer Price to the Custodians for the benefit
of their respective clients. See Section 2.
U.S. Registered Shares. Any holder of U.S. Registered Shares desiring to
tender all or any portion of such shareholder's Shares should either (i)
complete and sign the letter of transmittal provided with this Offer to Purchase
(the "Letter of Transmittal") (or a facsimile thereof) in accordance with the
instructions in the Letter of Transmittal and mail or deliver the certificate(s)
representing such tendered Shares, and all other required documents, to Morgan
Guaranty Trust Company of New York (the "U.S. Depositary" and, together with the
Dutch Depositary, the "Depositaries") or tender such Shares pursuant to the
procedure for book-entry transfer set forth in Section 3 or (ii) request his
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for him. A shareholder whose U.S. Registered Shares are registered
in the name of a broker, dealer, commercial bank, trust company or other nominee
must contact such person if he desires to tender such U.S. Registered Shares.
Any holder of U.S. Registered Shares who desires to tender Shares and whose
certificates representing such Shares are not immediately available or who
cannot comply with the procedures for book-entry transfer on a timely basis may
tender such Shares by following the procedure for guaranteed delivery set forth
in Section 3.
General. Questions and requests for assistance may be directed to D.F.
King & Co., Inc. (the "Information Agent") at its address and telephone number
set forth on the back cover of this Offer to Purchase. Holders of Dutch Shares
may obtain copies of this Offer to Purchase from the Dutch Depositary or from
the Custodians through whom they own their Shares. Holders of U.S. Registered
Shares may obtain additional copies of this Offer to Purchase, the Letter of
Transmittal, a notice of guaranteed delivery (the "Notice of Guaranteed
Delivery") and other related materials from D.F. King & Co., Inc. or from
brokers, dealers, commercial banks and trust companies.
For purposes of this Offer to Purchase, "Dutch Law" means the laws of The
Netherlands, including the Dutch Civil Code (the "DCC"), the SER-Besluit
Fusiegedragsregels 1975 (the "Dutch Merger Code") and the Listing and Issuing
Rules (Fondsenreglement) (the "AEX Rules") of Amsterdam Exchanges N.V. (the
"Amsterdam Exchanges").
vi
<PAGE> 8
To the Holders of Common Shares of
Baan Company N.V.:
INTRODUCTION
Invensys Holdings Limited, a private limited company organized under the
laws of England and Wales ("Offeror") and an indirect wholly owned subsidiary of
Invensys plc, a public limited company organized under the laws of England and
Wales ("Parent"), hereby offers to purchase all outstanding common shares, par
value NLG 0.06 per share (the "Shares"), of Baan Company N.V., a corporation
organized under the laws of The Netherlands ("Baan" or the "Company"), at a
purchase price of E2.85 per Share, net to the seller in cash, without interest
(the "Offer Price"), upon the terms and subject to the conditions set forth in
this Offer to Purchase and in the Letter of Transmittal (which, together with
any amendments or supplements hereto or thereto, collectively constitute the
"Offer").
For information concerning Offeror and Parent, see Section 9.
EACH OF THE BOARD OF MANAGEMENT AND THE SUPERVISORY BOARD OF THE COMPANY
HAS UNANIMOUSLY APPROVED THE OFFER AND DETERMINED THAT THE TERMS OF THE OFFER
ARE IN THE BEST INTERESTS OF THE COMPANY AND ITS SHAREHOLDERS AND RECOMMENDS
THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER ALL OF THEIR
SHARES IN THE OFFER.
LAZARD FRERES & CO. LLC, THE COMPANY'S FINANCIAL ADVISOR ("LAZARD FRERES"),
HAS DELIVERED TO THE BOARD OF MANAGEMENT AND THE SUPERVISORY BOARD OF THE
COMPANY, LAZARD FRERES' WRITTEN OPINION DATED MAY 30, 2000 TO THE EFFECT THAT,
AS OF SUCH DATE AND SUBJECT TO THE QUALIFICATIONS AND ASSUMPTIONS SET FORTH IN
THE OPINION, THE CONSIDERATION TO BE RECEIVED BY THE HOLDERS OF THE SHARES
PURSUANT TO THE OFFER IS FAIR TO SUCH HOLDERS FROM A FINANCIAL POINT OF VIEW.
SUCH OPINION IS SET FORTH IN FULL AS AN ANNEX TO THE COMPANY'S
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9")
FILED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), WHICH IS
BEING MAILED TO OR MADE AVAILABLE TO SHAREHOLDERS OF THE COMPANY CONCURRENTLY
WITH THIS OFFER TO PURCHASE.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER THAT NUMBER
OF SHARES WHICH WOULD, WHEN ADDED TO THE SHARES PREVIOUSLY ACQUIRED BY PARENT,
OFFEROR, OR THEIR SUBSIDIARIES, REPRESENT AT LEAST 95% OF THE OUTSTANDING SHARES
(SUCH CONDITION, THE "MINIMUM CONDITION"). AS OF JUNE 12, 2000, OFFEROR, PARENT
AND THEIR SUBSIDIARIES OWNED APPROXIMATELY 46,306,326 SHARES, REPRESENTING 17.3%
OF THE OUTSTANDING SHARES. SEE SECTIONS 12 AND 14.
The Offer is being made pursuant to the offer agreement, dated as of May
31, 2000 between Parent, on behalf of itself and two subsidiaries (then intended
to be formed), and the Company (the "Offer Agreement"). Subsequent to entering
into the Offer Agreement, Parent on behalf of the contemplated subsidiaries,
assigned the rights and obligations of those subsidiaries under the Offer
Agreement to Offeror. Pursuant to the Offer Agreement, Offeror intends to pursue
as promptly as is practicable following the later of the consummation of the
Offer and the satisfaction or waiver of certain conditions the Statutory Buy Out
Procedure of any remaining Shares pursuant to the DCC. See Section 12.
If by the Expiration Date, any or all conditions to the Offer have not been
satisfied or waived, Offeror reserves the right (but shall not be obligated),
subject to the terms and conditions contained in the Offer Agreement and to the
applicable rules and regulations of the SEC and Dutch Law, to (i) terminate the
Offer and not accept for payment any Shares and return all tendered Shares to
tendering shareholders, (ii) waive all the unsatisfied conditions and, subject
to complying with the terms of the Offer Agreement and the applicable rules and
regulations of the SEC and Dutch Law, accept for payment and pay for all Shares
validly tendered prior to the Expiration Date and not theretofore withdrawn,
(iii) extend the Offer and, subject to the right of shareholders to withdraw
Shares until such extension of the Expiration Date, retain the Shares that have
been tendered during the period or periods for which the Offer is extended and,
on the extended Expiration Date, subject to satisfaction or waiver of the
conditions of the Offer Agreement and the applicable rules and regulations of
the SEC and Dutch Law, then accept for payment and pay for all Shares validly
tendered prior to such extension of the Expiration Date or (iv) amend the Offer.
The Offer Agreement provides that, so long
1
<PAGE> 9
as the Offer Agreement is in effect and the Offer conditions are not satisfied
on any scheduled Expiration Date of the Offer, then, provided that all such
conditions could reasonably be expected to be satisfied within 30 days after the
then scheduled Expiration Date, Parent and Offeror shall extend the Offer. Under
Dutch Law, a material change in the terms of the Offer may obligate Offeror to
terminate the Offer and commence a new offer for Shares. In the event of any
such termination, Offeror would return all tendered Shares to tendering
shareholders. Shareholders would then have the opportunity to tender their
Shares in any new offer. See Section 14.
There can be no assurance that Offeror will exercise its right to extend
the Offer. Any extension, waiver, amendment or termination will be followed as
promptly as practicable by public announcement thereof with such announcement in
the case of an extension to be made no later than 9:00 a.m., New York City time,
on the next business day after the previously scheduled Expiration Date in
accordance with the public announcement requirements of Rule 14e-1 under the
U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"). Subject
to applicable Law (including Dutch Law and Rules 14d-4(c), 14d-6(d) and 14e-1
under the Exchange Act, which require that material changes to a tender offer be
promptly disseminated to shareholders in a manner reasonably designed to inform
them of such changes) and without limiting the obligations of Offeror under
Dutch Law or the manner in which Offeror may choose to make any public
announcement, Offeror will not have any obligation to publish, advertise or
otherwise communicate any such public announcement other than by (a) complying
with the applicable public announcement requirements of Dutch Law and the AEX
Rules and (b) issuing a release to the Dow Jones News Service.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the sale of Shares pursuant to the Offer. Offeror
will pay all fees and expenses of ABN AMRO Bank N.V., which is acting as Dutch
Depositary, Morgan Guaranty Trust Company of New York, which is acting as U.S.
Depositary, and D.F. King & Co., Inc., which is acting as Information Agent,
incurred in connection with the Offer. See Section 16.
In contemplation of entering into the Offer Agreement, and in order to
expedite its acquisition of the Company, Parent entered into agreements on May
30, 2000 and May 31, 2000, described in Section 12 under "The Transaction
Documents -- The Share Purchase Agreements" providing for Parent to purchase the
Shares held by certain significant shareholders of the Company. Parent assigned
its rights under the agreements to Offeror, which completed the purchases
contemplated by these agreements. In addition, Offeror may purchase Shares
during but outside the Offer for a price not to exceed the Offer Price, in
accordance with the terms of an exemptive order under Rule 14e-5 under the
Exchange Act issued by the SEC. In connection with the exemptive order, Parent
has entered into a letter agreement, described in Section 12 below, providing
for Goldman Sachs International ("GSI") to purchase Shares for the account of
Offeror from time to time outside of the United States at a price not to exceed
the Offer Price. As a result of the transactions described in this paragraph,
Parent, Offeror and their subsidiaries own, as of June 12, 2000, 46,306,293
Shares.
Based on the representations and warranties of the Company contained in the
Offer Agreement and information provided by the Company, as of May 31, 2000, (i)
267,337,252 Shares were outstanding and (ii) 15,471,212 employee and
non-employee director and other certain stock options were outstanding
(approximately 9,627 of which options have exercise prices below E2.85 per Share
(or the U.S. dollar equivalent)).
Based on the foregoing, and assuming only the in the money options are
exercised prior to the Expiration Date, the Minimum Condition will be satisfied
if 253,979,536 Shares are validly tendered and not withdrawn prior to the
Expiration Date or have been otherwise acquired by Parent or Offeror at such
time. The number of Shares required to be validly tendered and not withdrawn in
order to satisfy the Minimum Condition will decrease to the extent Parent,
Offeror or their subsidiaries acquire Shares outside the Offer and will increase
to the extent additional Shares are issued by the Company after the date of the
Offer Agreement or out of the money options are exercised.
2
<PAGE> 10
THE OFFER
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
SECTION 1. TERMS OF THE OFFER; EXPIRATION DATE.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Offeror will accept for payment and pay for all Shares validly
tendered prior to the Expiration Date and not withdrawn in accordance with
Section 4. The Offer extends equally to all Shares. The term "Expiration Date"
means 3:00 p.m. Amsterdam time (9:00 a.m., New York City time) on Thursday, July
13, 2000, unless and until Offeror (subject to the terms of the Offer Agreement)
shall have extended the period of time during which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by Offeror, shall expire.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition and the other conditions set forth in Section 14. Subject to the terms
and conditions contained in the Offer Agreement, Offeror reserves the right (but
shall not be obligated) to waive any or all such conditions. Unless otherwise
specified in the relevant condition, any determination concerning the
satisfaction or waiver of such terms and conditions will be within the
reasonable discretion of Offeror, and such determination will be final and
binding for purposes of the Offer.
Pursuant to Rule 14d-11 under the Exchange Act, Offeror may, subject to
certain conditions, provide a subsequent offering period of from three business
days to twenty business days in length following the purchase of Shares on the
Expiration Date (the "Subsequent Offering Period"). Offeror currently intends to
provide a Subsequent Offering Period of at least three business days and, if
Offeror owns less than 95% of the outstanding Shares following expiration of the
initial offering period and the purchase of all Shares tendered pursuant to the
Offer during that period and the first three business days of the Subsequent
Offering Period, Offeror will extend the Subsequent Offering Period until the
earlier of (i) 20 business days after the Expiration Date and (ii) the time at
which Offeror becomes the owner of at least 95% of the outstanding Shares so
that a Statutory Buy Out Procedure can be effected. A Subsequent Offering Period
is an additional period of time, following the expiration of the Offer and the
purchase of Shares in the Offer, during which shareholders may tender Shares
that had not been previously purchased in the Offer. A Subsequent Offering
Period is not an extension of the Offer, which already will have been completed.
During a Subsequent Offering Period, tendering shareholders will not have
withdrawal rights, and Offeror will promptly purchase and pay for any Shares
tendered at the same price per Share paid in the Offer. Rule 14d-11 under the
Exchange Act provides that Offeror may provide a Subsequent Offering Period so
long as, among other things, (i) the initial 20 business day period of the Offer
has expired, (ii) Offeror offers the same form and amount of consideration for
Shares in the Subsequent Offering Period as in the Offer, (iii) Offeror accepts
and promptly pays for all Shares tendered during the Offer prior to the
Expiration Date, (iv) Offeror announces the results of the Offer, including the
approximate number and percentage of outstanding Shares deposited in the Offer,
no later than 9:00 a.m. New York City time on the next business day after the
Expiration Date and immediately begins the Subsequent Offering Period, and (v)
Offeror immediately accepts and promptly pays for Shares as they are tendered
during the Subsequent Offering Period. If Offeror elects to extend the
Subsequent Offering Period, it will notify shareholders of the Company
consistent with the requirements of the SEC.
In the Offer Agreement, Offeror has agreed that it will not, without the
prior consent of the Company, extend the Offer if all of the Offer conditions
are satisfied or waived, except that Offeror may, without the consent of the
Company, extend the Offer at any time and from time to time (i) if at the then
scheduled Expiration Date of the Offer any of the conditions to Offeror's
obligation to accept for payment and pay for Shares shall not have been
satisfied or waived, (ii) for any period required by the Dutch Merger Code or
any statute or rule, regulation, interpretation or position of the Amsterdam
Exchanges or the SEC or its staff applicable to the Offer and (iii) for any
period required by applicable Law in connection with an increase in
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<PAGE> 11
the consideration to be paid pursuant to the Offer. In addition, Offeror has
agreed that, without the prior written consent of the Company, it will not (i)
reduce the price per Share to be paid pursuant to the Offer or (ii) add to the
conditions of the Offer in any manner adverse to the holders of Shares or which
makes the successful completion of the Offer less likely.
If Offeror extends the Offer, or if Offeror (whether before or after its
acceptance for payment of Shares) is delayed in its acceptance for payment of,
or payment for, Shares or is unable to pay for Shares pursuant to the Offer for
any reason, then, without prejudice to Offeror's rights under the Offer, the
Depositaries may retain tendered Shares on behalf of Offeror, and such Shares
may not be withdrawn except to the extent tendering shareholders are entitled to
withdrawal rights as described in Section 4.
If Offeror makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
Offeror will (i) disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-l under the
Exchange Act and the AEX Rules and the Dutch Merger Code or (ii) with respect to
any change of the Offer conditions, terminate the Offer and commence a new
offer, if so required by Dutch Law. The minimum period during which an offer
must remain open following material changes in the terms of such offer or
information concerning such offer, other than a change in price or a change in
the percentage of securities sought, will depend upon the facts and
circumstances then existing, including the relative materiality of the changed
terms or information. With respect to a change in price or an increase in the
percentage of securities sought, a minimum period of ten business days is
generally required under applicable U.S. Law to allow for adequate dissemination
to shareholders. However, under U.S. Law, Offeror may waive or reduce the
Minimum Condition on the Expiration Date without extending withdrawal rights if
Offeror satisfies certain requirements, including that Offeror must announce
that it may reduce the Minimum Condition five business days prior to the time it
waives or reduces the Minimum Condition. Any announcement of a possible waiver
or reduction of the Minimum Condition will be through a press release or other
method designed to inform shareholders. As used in this Offer to Purchase,
"business day" has the meaning set forth in Rule 14d-1 under the Exchange Act.
Subject to the terms of the Offer Agreement and applicable Law, Offeror
expressly reserves the right, at any time and from time to time, (i) to extend
the period of time during which the Offer is open, and thereby delay acceptance
for payment of and the payment for any Shares, by giving oral or written notice
of such extension to the Depositaries and (ii) to amend the Offer in any other
respect by giving oral or written notice of such amendment to the Depositaries.
Under Dutch Law, any change in the terms of the Offer following commencement
thereof could require the commencement of a new offer and the termination of the
original offer in accordance with its terms. In the event of any such
termination, Offeror would return all tendered Shares to tendering shareholders.
Shareholders would then have the opportunity to tender their Shares in any new
offer. With respect to immaterial changes in the terms of the Offer, however,
The Netherlands Committee for Merger Affairs (the "Dutch Merger Committee")
could grant an exemption from the requirement to commence a new offer. Any such
exemption would likely be conditioned on Offeror's (i) publicly disclosing the
receipt of the exemption and the nature of the change in the Offer and (ii)
providing shareholders that tendered Shares prior to such change the right to
withdraw their Shares. Offeror is not aware of any provision of Dutch Law that
addresses the types of changes that would constitute an "immaterial change" for
these purposes, although Offeror has been advised that a reduction of the Offer
Price or a change to material Offer conditions would not constitute an
"immaterial change." Offeror has also been advised that the Dutch Merger
Committee has granted exemptions in cases where the offer consideration has been
increased.
Offeror reserves the right to transfer or assign, in whole or from time to
time in part, to a wholly owned subsidiary of Parent, the right to make the
Offer and/or to purchase Shares tendered pursuant to the Offer, but any such
transfer or assignment will not relieve Offeror of its obligations under the
Offer and will in no way prejudice the rights of tendering shareholders to
receive payment for Shares validly tendered and accepted for payment pursuant to
the Offer.
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<PAGE> 12
SECTION 2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Offeror will accept for payment and will pay the Offer Price for
all Shares validly tendered prior to the Expiration Date, and not properly
withdrawn in accordance with Section 4, as soon as practicable after the
Expiration Date. If Offeror extends the Offer, is delayed in its acceptance for
payment of, or payment for, Shares or is unable to accept for payment or pay for
Shares pursuant to the Offer for any reason, then, without prejudice to
Offeror's rights under the Offer, the Depositaries may, nevertheless, on behalf
of Offeror, retain tendered Shares, and any such Shares may not be withdrawn
except to the extent tendering shareholders are entitled to exercise, and duly
exercise, withdrawal rights as described in Section 4. Offeror expressly
reserves the right to delay acceptance for payment of, or payment for, Shares in
order to comply in whole or in part with any applicable Law.
For purposes of the Offer, Offeror will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Offeror and not
withdrawn, if and when Offeror gives oral or written notice to the Depositaries
of Offeror's acceptance for payment of such Shares pursuant to the Offer. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositaries, which will act as agents for
tendering shareholders for the purpose of receiving payments from Offeror and
transmitting payments to tendering shareholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY OFFEROR,
REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
If, prior to the Expiration Date, Offeror increases the consideration to be
paid per Share pursuant to the Offer, Offeror will pay such increased
consideration for all Shares purchased pursuant to the Offer, whether or not
such Shares were tendered prior to such increase in consideration.
Payment for Dutch Shares
Payment for tendered Dutch Shares accepted pursuant to the Offer will be
made only after timely receipt by the Dutch Depositary of confirmation from
NECIGEF of a book-entry transfer of such Dutch Shares into the Dutch
Depositary's account at NECIGEF pursuant to the procedures set forth in Section
3.
On the Closing Date, Offeror will deposit with the Dutch Depositary cash in
an amount equal to the product of the Offer Price and the number of tendered
Dutch Shares. At, or as soon as practicable after, the Closing Date, the Dutch
Depositary shall distribute to each holder of tendered Dutch Shares pursuant to
the Offer, an amount equal to the product of the Offer Price and the number of
Shares tendered by such shareholder by making a payment to the relevant
Custodians for the benefit of their respective clients.
Payment for U.S. Registered Shares
Payment for U.S. Registered Shares accepted for payment pursuant to the
Offer will be made only after timely receipt by the U.S. Depositary of (i)
certificates for such U.S. Registered Shares or timely confirmation (a
"Book-Entry Confirmation") of the book-entry transfer of such U.S. Registered
Shares into the U.S. Depositary's account at The Depository Trust Company (the
"Book-Entry Transfer Facility") pursuant to the procedures set forth in Section
3, (ii) a Letter of Transmittal (or a facsimile thereof) properly completed and
duly executed, with any required signature guarantees, or an Agent's Message (as
hereinafter defined) in connection with a book-entry transfer and (iii) any
other documents required by the Letter of Transmittal.
On the Closing Date, Offeror will deposit, in trust, with the U.S.
Depositary cash in an amount equal to the product of the Offer Price and the
number of tendered U.S. Registered Shares. At, or as soon as practicable after,
the Closing Date, the U.S. Depositary shall distribute to each holder of
tendered U.S. Registered Shares pursuant to the Offer a check for an amount
equal to the product of the Offer Price and the number of Shares tendered by
such shareholder. If such check is to be issued in a name other than that in
which the certificate for tendered U.S. Registered Shares is registered, it
shall be a condition of such issuance that the person requesting such issuance
shall pay to the U.S. Depositary any transfer or other taxes required
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<PAGE> 13
by reason of issuance of such check for such Shares in a name other than the
registered holder of the certificate surrendered, or shall establish to the
reasonable satisfaction of the U.S. Depositary that such tax has been paid or is
not applicable.
Currency Election. Although the Offer Price is stated in euros, the U.S.
Depositary will make payments for U.S. Registered Shares tendered and accepted
pursuant to the Offer in U.S. dollars based on the U.S. dollar/euro exchange
rate prevailing when funds are made available to the U.S. Depositary, unless
holders of U.S. Registered Shares elect to receive all such payments in euros.
Holders of U.S. Registered Shares who tender U.S. Registered Shares by
book-entry transfer and who wish to receive cash payments pursuant to the Offer
in euros instead of U.S. Dollars must submit with their Letter of Transmittal a
copy of the Agent's Message used to tender such U.S. Registered Shares. See
Instruction 8 of the Letter of Transmittal. Holders of U.S. Registered Shares
who elect to receive cash payments pursuant to the Offer in euros and who do not
tender such Shares by book-entry transfer must provide the U.S. Depositary with
wire instructions for an account in The Netherlands to which such payment may be
made and have their signature on the Letter of Transmittal guaranteed by an
Eligible Institution. See Instructions 1 and 8 of the Letter of Transmittal.
For holders who tender U.S. Registered Shares pursuant to the Offer, and do
not opt to receive cash payments in euros, all cash payable to such holders will
be converted from euros to U.S. dollars at the exchange rate prevailing when
funds are made available by Offeror to the U.S. Depositary for delivery in
respect of the applicable U.S. Registered Shares.
THE ACTUAL AMOUNT OF U.S. DOLLARS RECEIVED WILL DEPEND UPON THE U.S.
DOLLAR/EURO EXCHANGE RATE PREVAILING ON THE DATE ON WHICH FUNDS ARE MADE
AVAILABLE TO THE U.S. DEPOSITARY BY OFFEROR. HOLDERS OF U.S. REGISTERED SHARES
SHOULD BE AWARE THAT THE EXCHANGE RATE WHICH IS PREVAILING ON THE DATE ON WHICH
SUCH HOLDER EXECUTES THE LETTER OF TRANSMITTAL AND ON THE DATE OF DISPATCH OF
PAYMENT MAY BE DIFFERENT FROM THAT PREVAILING ON THE DATE ON WHICH FUNDS ARE
MADE AVAILABLE TO THE U.S. DEPOSITARY BY OFFEROR. See "Exchange Rates" in
Section 8 for historical information regarding the U.S. dollar/euro exchange
rates. In all cases, fluctuations in the U.S. dollar/euro exchange rate are at
the risk of tendering holders of U.S. Registered Shares who do not elect to
receive their cash payments in euros. Such currency exchange will be effected by
Offeror or the U.S. Depositary on behalf of each requesting holder of U.S.
Registered Shares and Offeror shall have no responsibility or obligation with
respect to any such currency exchange effected by the U.S. Depositary.
If any tendered U.S. Registered Shares are not accepted pursuant to the
Offer for any reason or if Share certificates are submitted for more U.S.
Registered Shares than are tendered, Share certificates evidencing un-exchanged
or un-tendered U.S. Registered Shares will be returned, without expense to the
tendering shareholder (or, in the case of U.S. Registered Shares tendered by
book-entry transfer into the U.S. Depositary's account at the Book-Entry
Transfer Facility pursuant to the procedures described in Section 3, such U.S.
Registered Shares will be credited to an account maintained at the Book-Entry
Transfer Facility), promptly following the expiration, termination or withdrawal
of the Offer.
SECTION 3. PROCEDURE FOR TENDERING SHARES.
For Holders of Dutch Shares
Dutch Shares. Following a public notice by Parent concerning the Offer and
the availability of this Offer to Purchase, each holder of Dutch Shares will by
customary practice be contacted by the Custodian through which such holder's
Dutch Shares are held. Such Custodian will inquire as to whether such holder
desires to tender its Dutch Shares pursuant to the Offer. Any holder of Dutch
Shares who wishes to tender its Dutch Shares must instruct its Custodian to that
effect in accordance with the procedures of, and in any event before the date
(which will precede the Expiration Date) established by, such Custodian.
All Custodians will notify the Dutch Depositary on the Expiration Date of
the number of Dutch Shares tendered by their respective clients pursuant to the
Offer. By notifying the Dutch Depositary of the number of Dutch Shares tendered
by their respective clients pursuant to the Offer, which must be in writing (or
a facsimile thereof), the Custodian declares that he has the offered Shares in
custody and that he will deliver
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<PAGE> 14
the Shares to the Dutch Depositary if the Offer becomes unconditional. If
Offeror accepts all tendered Dutch Shares pursuant to the Offer, then on the
Closing Date the Custodians will cause the Dutch Shares tendered by their
respective clients to be transferred in book-entry form into the NECIGEF account
of the Dutch Depositary in accordance with NECIGEF procedures and subsequently
into the account of Offeror with the Dutch Depositary against payment of the
Offer consideration to the Custodians for the benefit of their respective
clients. See Section 2.
For Holders of U.S. Registered Shares
Valid Tender of Shares. In order for U.S. Registered Shares to be validly
tendered pursuant to the Offer, the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees, or an Agent's Message in connection with a book-entry
delivery of U.S. Registered Shares, and any other documents required by the
Letter of Transmittal, must be received by the U.S. Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase on or prior to
the Expiration Date and either (i) the Share certificates evidencing tendered
U.S. Registered Shares must be received by the U.S. Depositary at such address
or such tendered U.S. Registered Shares must be tendered pursuant to the
procedure for book-entry transfer described below and a Book-Entry Confirmation
must be received by the U.S. Depositary, in each case on or prior to the
Expiration Date or (ii) the guaranteed delivery procedures described below must
be complied with. The term "Agent's Message" means a message, transmitted by the
Book-Entry Transfer Facility to, and received by, the U.S. Depositary and
forming a part of a Book-Entry Confirmation, which states that the Book Entry
Transfer Facility has received an express acknowledgment from the participant in
the Book-Entry Transfer Facility tendering the Shares that are the subject of
such Book-Entry Confirmation, that such participant has received and agrees to
be bound by the terms of the Letter of Transmittal and that Offeror may enforce
such agreement against such participant.
Book-Entry Transfer. The U.S. Depositary will make a request to establish
accounts with respect to the U.S. Registered Shares at the Book-Entry Transfer
Facility for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant in the
system of the Book-Entry Transfer Facility may make book-entry delivery of
tendered U.S. Registered Shares by causing the Book-Entry Transfer Facility to
transfer such tendered U.S. Registered Shares into the U.S. Depositary's account
at the Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's procedures for such transfer. However, although delivery of tendered
U.S. Registered Shares may be effected through book-entry transfer at the
Book-Entry Transfer Facility, the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees, or an Agent's Message, and any other documents required by
the Letter of Transmittal, must, in any case, be received by the U.S. Depositary
at one of its addresses set forth on the back cover of this Offer to Purchase
prior to the Expiration Date, or the guaranteed delivery procedures described
below must be complied with.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE U.S. DEPOSITARY.
Signature Guarantees. Signatures on Letters of Transmittal must be
guaranteed by a firm that is a member in good standing of the Securities
Transfer Agents Medallion Program, or by any other firm that is a bank, broker,
dealer, credit union or savings association (each of the foregoing being
referred to as an "Eligible Institution" and, collectively, as "Eligible
Institutions"), except in cases where U.S. Registered Shares are tendered (i) by
a registered holder of such U.S. Registered Shares who has not completed either
the box labeled "Special Payment Instructions" or the box labeled "Special
Delivery Instructions" on the Letter of Transmittal or (ii) for the account of
an Eligible Institution. See Instructions 1 and 5 of the Letter of Transmittal.
In addition, any holder completing the box labeled "Special Currency
Instructions" and not tendering such holder's Shares by book-entry transfer must
have its signature guaranteed by an Eligible Institution. See Instructions 1 and
8 of the Letter of Transmittal.
If the Share certificates evidencing tendered U.S. Registered Shares are
registered in the name of a person other than the signer of the Letter of
Transmittal, or if payment is to be made, or Share certificates not accepted
pursuant to the Offer or not tendered are to be returned, to a person other than
the registered
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<PAGE> 15
holder(s), the Share certificates must be endorsed or accompanied by appropriate
stock powers, signed exactly as the name(s) of the registered holder(s) appear
on such certificates, with the signature(s) on such certificates or stock powers
guaranteed as aforesaid. See Instructions 1 and 5 of the Letter of Transmittal.
If Share certificates evidencing tendered U.S. Registered Shares are
forwarded separately to the U.S. Depositary, a properly completed and duly
executed Letter of Transmittal (or a facsimile thereof) must accompany each such
delivery.
Guaranteed Delivery. If a shareholder desires to tender U.S. Registered
Shares pursuant to the Offer and such shareholder's Share certificates are not
immediately available or such shareholder cannot deliver Share certificates and
all other required documents to the U.S. Depositary on or prior to the
Expiration Date, or such shareholder cannot complete the procedure for delivery
by book-entry transfer on a timely basis, such U.S. Registered Shares may
nevertheless be tendered, provided that all of the following conditions are
satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by Offeror, is received
by the U.S. Depositary, as provided below, on or prior to the Expiration
Date; and
(iii) the Share certificates (or a Book-Entry Confirmation)
representing all tendered U.S. Registered Shares, in proper form for
transfer, in each case together with the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, with any required
signature guarantees or, in the case of a book entry delivery, an Agent's
Message, and any other documents required by the Letter of Transmittal are
received by the U.S. Depositary within three Nasdaq/National Market System
("Nasdaq/NMS") trading days after the date of execution of such Notice of
Guaranteed Delivery.
The Notice of Guaranteed Delivery must be delivered by hand or mailed to
the U.S. Depositary and must include a guarantee by an Eligible Institution in
the form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for tendered U.S.
Registered Shares accepted pursuant to the Offer will in all cases be made only
after timely receipt by the U.S. Depositary of Share certificates for (or of
Book-Entry Confirmation with respect to) such tendered U.S. Registered Shares, a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof), together with any required signature guarantees, or, in the case of a
book-entry delivery, an Agent's Message, and any other documents required by the
Letter of Transmittal. Accordingly, payment for tendered U.S. Registered Shares
might not be made to all tendering shareholders at the same time, and will
depend upon when Share certificates, or Book-Entry Confirmations of such
tendered Shares, and such other documents are actually received by the U.S.
Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID BY OFFEROR, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
Appointment as Proxy. By executing a Letter of Transmittal (or a facsimile
thereof) (or delivering an Agent's Message) as set forth above, a tendering
shareholder irrevocably appoints each designee of Offeror as such shareholder's
attorney-in-fact and proxy, with full power of substitution, to vote in such
manner as such attorney-in-fact and proxy (or any substitute thereof) shall deem
proper in its sole discretion, and to otherwise act (including pursuant to
written consent) to the full extent of such shareholder's rights with respect to
the Shares tendered by such shareholder and accepted for payment by Offeror (and
any and all dividends, distributions, rights or other securities issued or
issuable in respect of such Shares on or after January 1, 2000). All such
proxies shall be considered coupled with an interest in the tendered Shares and
shall be irrevocable. This appointment will be effective if, when, and only to
the extent that, Offeror accepts such Shares for payment pursuant to the Offer.
Upon such acceptance for payment, all prior proxies given by such shareholder
with respect to such Shares and other securities will, without further action,
be revoked, and no subsequent proxies may be given (and, if given, will not be
deemed effective). The designees of Offeror will, with respect to the Shares and
other securities for which the appointment is effective, be empowered to
exercise all voting and other rights of such shareholder as they in their sole
discretion may deem proper at any annual, special, adjourned or postponed
meeting of the Company's shareholders, by written consent in lieu of any such
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<PAGE> 16
meeting or otherwise. Offeror reserves the right to require that, in order for
Shares to be deemed validly tendered, immediately upon Offeror's acceptance for
payment of such Shares, Offeror must be able to exercise all rights (including,
without limitation, all voting rights) with respect to such Shares and receive
all dividends and distributions in respect of such Shares.
Determination of Validity
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any tender of Shares will be determined by Offeror,
in its sole discretion, which determination shall be final and binding on all
parties. Offeror reserves the absolute right to reject any and all tenders
determined by it not to be in proper form or the acceptance for exchange of
which may, in the opinion of its counsel, be unlawful. Except as otherwise
described in this Offer to Purchase or in the Offer Agreement, Offeror also
reserves the absolute right to waive any defect or irregularity in any tender of
Shares of any particular shareholder whether or not similar defects or
irregularities are waived in the case of other shareholders. No tender of Shares
will be deemed to have been validly made until all defects and irregularities
have been cured or waived. None of Offeror, the Depositaries, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in tenders or incur any liability for failure to give
any such notification. Offeror's interpretation of the terms and conditions of
the Offer will be final and binding.
Backup U.S. Federal Tax Withholding
To prevent U.S. federal income tax backup withholding equal to 31% of the
gross proceeds pursuant to the Offer, a shareholder that is a U.S. person should
provide the U.S. Depositary with such shareholder's correct taxpayer
identification number ("TIN") (or certify that such taxpayer is awaiting a TIN)
and provide certain other information by completing a Substitute Form W-9 and
signing the main signature form included as part of the Letter of Transmittal
(unless an applicable exemption exists and is proved in a manner satisfactory to
Offeror and the U.S. Depositary). Non-U.S. shareholders that own U.S. Registered
Shares should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the U.S.
Depositary, in order to avoid backup withholding. See Instruction 10 to the
Letter of Transmittal.
Other Matters
Tender Constitutes an Agreement. The valid tender of Shares pursuant to
one of the procedures described above will constitute a binding agreement
between the tendering shareholder and Offeror on the terms and subject to the
conditions of the Offer.
THE METHOD OF DELIVERY OF TENDERED SHARES, AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH NECIGEF OR THE BOOK ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
SECTION 4. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
tenders of Shares pursuant to the Offer may be withdrawn at any time on or prior
to the Expiration Date and, unless theretofore accepted by Offeror pursuant to
the Offer, may also be withdrawn at any time after August 13, 2000 (or such
later date as may apply if the Offer is extended), in each case to the fullest
extent permitted by the Exchange Act and the rules and regulations promulgated
thereunder, applicable Dutch Law and AEX Rules and according to the procedures
described below.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Offeror, in its sole discretion,
whose determination will be final and binding. None of Offeror, Parent, any of
their affiliates or assigns, the Depositaries, the Information Agent or any
other person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
9
<PAGE> 17
Any Shares for which the tender has been properly withdrawn will thereafter
be deemed not to have been validly tendered for purposes of the Offer. Shares
for which the tender has been at any time withdrawn on or prior to the
Expiration Date may be retendered on or prior to the Expiration Date by
following the procedures described in Section 3.
If Offeror extends the Offer, is delayed in its acceptance for payment of
Shares or is unable to accept Shares for payment pursuant to the Offer for any
reason, then, without prejudice to Offeror's rights under the Offer, the
Depositaries may, nevertheless, on behalf of the Offeror, retain tendered
Shares, and such Shares may not be withdrawn except to the extent that tendering
shareholders are entitled to withdrawing rights as described below. Any such
delay will be an extension of the Offer to the extent required by applicable
Law.
For Holders of Dutch Shares
Dutch Shares. For a withdrawal of a tender of Dutch Shares to be
effective, a holder of such Shares must notify such holder's Custodian in
accordance with the procedures of the Custodian. With respect to a tender of
Dutch Shares withdrawn prior to the Expiration Date, each Custodian shall
exclude such Shares from the notice to the Dutch Depositary of the number of
such Dutch Shares tendered by its clients. See "For Holders of Dutch Shares" in
Section 3. With respect to a tender of Dutch Shares withdrawn after August 13,
2000 (after the Expiration Date but prior to the earlier of (i) the termination
of the Offer and (ii) the acceptance of the tendered Shares pursuant to the
Offer), each Custodian must provide timely notice to the Dutch Depositary of the
number of such Dutch Shares to be withdrawn. Any such notice of withdrawal from
such Custodian may be effected by written, telegraphic, telex or facsimile
transmission.
For Holders of U.S. Registered Shares
For a withdrawal of a tender of U.S. Registered Shares to be effective, a
written, telegraphic or facsimile transmission notice of withdrawal must be
timely received by the U.S. Depositary at one of its addresses set forth on the
back cover of this Offer to Purchase. Any notice of withdrawal must specify the
name of the person who tendered the Shares for which the tender is to be
withdrawn, the number of Shares for which the tender is to be withdrawn and the
name of the registered holder of the Shares to be withdrawn, if different from
the name of the person who tendered the Shares. If certificates for Shares have
been delivered or otherwise identified to the U.S. Depositary, then, prior to
the physical release of such certificates, the serial numbers shown on such
certificates must be submitted to the U.S. Depositary and, unless such Shares
have been tendered by an Eligible Institution, the signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution. If Shares have been
tendered pursuant to the procedures for book-entry transfer set forth in Section
3, any notice of withdrawal must specify the name and number of the account at
the appropriate Book-Entry Transfer Facility to be credited with the Shares for
which the tender is to be withdrawn, in which case a notice of withdrawal will
be effective if delivered to the U.S. Depository by any method described in the
first sentence of this paragraph.
SECTION 5. CERTAIN DUTCH AND U.S. FEDERAL INCOME TAX CONSEQUENCES.
The following summary describes the principal Dutch and U.S. federal income
tax consequences of the Offer and the Statutory Buy Out Procedure. This summary
does not purport to be a comprehensive description of all the tax considerations
that may be relevant to a decision to tender Shares in the Offer.
This summary does not address the tax treatment of employees of the Company
and related entities and beneficial owners of the Company's stock options.
Holders of Shares should consult their own tax advisors as to the Dutch and
U.S. tax consequences of the disposition of Shares in the Offer and the
Statutory Buy Out Procedure, as well as the effect of any foreign, state,
provincial or local laws.
Dutch Tax Consequences
The summary of Dutch consequences does not address the tax treatment of a
holder of Shares that has a substantial interest or deemed substantial interest
(as such terms are defined by statute; a so-called
10
<PAGE> 18
"aanmerkelijk belang") in the Company, or Dutch tax consequences due to the
application of a special tax regime. This summary is based upon tax laws and
published case law of The Netherlands as in effect on the date of this Offer to
Purchase, which are subject to change, possibly with retroactive effect. This
summary does not take into account the Income Tax Act 2001, which was approved
by the Dutch Parliament on 9 May 2000 and is expected to enter into effect on 1
January 2001 and which will substantially change the Dutch tax consequences of
ownership and transfer of the Shares. This summary assumes that the Company will
not declare or pay any dividends on the Shares until the Offer and the Statutory
Buy Out Procedure have been consummated.
A shareholder that is resident or deemed to be resident in The Netherlands
(a "Netherlands Holder") will not be subject to any Dutch taxes on income or
capital gains arising on the disposal of Shares pursuant to the Offer or the
Statutory Buy Out Procedure, unless:
(i) such Netherlands Holder is subject to Dutch corporate income tax
and such income or capital gain is not exempt under the so-called
"participation exemption"; or
(ii) such Netherlands Holder is an individual, who has an enterprise
or an interest in an enterprise, to which enterprise or part of an
enterprise the Shares are attributable; or
(iii) such Netherlands Holder is an individual and such income or
capital gain is or can be construed as income from activities or services
not within an employment relationship.
A shareholder that is not resident or deemed to be resident in The
Netherlands (a "Non-Netherlands Holder") will not be subject to any Dutch taxes
on income or capital gains arising on the disposal of the Shares pursuant to the
Offer or the Statutory Buy Out Procedure, provided that such Non-Netherlands
Holder (i) does not have an enterprise or an interest in an enterprise which is,
in whole or in part, carried on through a permanent establishment or a permanent
representative in The Netherlands and to which enterprise or part of an
enterprise the Shares are attributable or, in the event that the Shares are
attributable to such enterprise or such part of an enterprise, the
Non-Netherlands Holder is subject to Dutch corporate income tax and such income
or capital gain is exempt under the so-called "participation exemption" and (ii)
is not entitled to a share in the profits of an enterprise to which the Shares
are attributable and that is effectively managed in The Netherlands, other than
by way of a shareholder interest or through an employment relationship.
The payment of cash consideration pursuant to the Offer or the Statutory
Buy Out Procedure may be made free of any withholding or deduction of, for or on
account of any taxes of whatever nature imposed, levied, withheld or assessed by
The Netherlands or any political subdivision or taxing authority thereof or
therein.
No Dutch registration tax, transfer tax, stamp duty or any similar
documentary tax or duty will be payable in The Netherlands in respect of or in
connection with the disposition of Shares pursuant to the Offer or the Statutory
Buy Out Procedure.
U.S. Tax Consequences
The summary of U.S. federal income tax consequences applies only to a U.S.
Holder that is a Non-Netherlands Holder that is not subject to Dutch tax on the
disposition of the Shares as described above under "-- Dutch Tax Consequences."
In particular, the summary deals only with beneficial owners that hold the
Shares as capital assets and does not address the tax treatment of a beneficial
owner that owns, directly or indirectly, 10% or more of the voting stock of the
Company, or that may be subject to special tax rules, such as financial
institutions, broker-dealers, traders in securities, tax-exempt entities,
insurance companies, persons that hold the Shares as part of a straddle,
hedging, conversion or integrated transaction, and persons that have a
functional currency other than the U.S. dollar. This summary is based upon tax
laws, regulations, practice, administrative pronouncements and court decisions,
all as of the date of this Offer to Purchase and all of which are subject to
change or differing interpretation, possibly with retroactive effect. In
addition, the following discussion assumes that the Company is not and has not
been classified as a "passive foreign investment company" (a "PFIC") as defined
in section 1296 of the United States Internal Revenue Code of
11
<PAGE> 19
1986, as amended (the "U.S. Internal Revenue Code"). If the Company is or was
classified as a PFIC, a disposition of the Shares pursuant to the Offer could
have less favorable U.S. federal income tax consequences to a U.S. Holder than
those described below.
As used herein, the term "U.S. Holder" means a beneficial owner of Shares
that is (i) a citizen or individual resident of the United States, (ii) a
corporation or partnership organized in or under the laws of the United States
or any state thereof (including the District of Columbia), (iii) an estate the
income of which is subject to United States federal income taxation regardless
of its source or (iv) a trust if, in general, the trust is subject to the
supervision of a court within the United States and the control of one or more
United States persons as described in section 7701(a)(30) of the U.S. Internal
Revenue Code.
The receipt of cash for Shares pursuant to the Offer or the Statutory Buy
Out Procedure will be a taxable transaction for U.S. federal income tax
purposes. In general, a U.S. Holder who receives cash for its Shares will
recognize gain or loss for U.S. federal income tax purposes equal to the
difference between (i) the amount of cash received in exchange for the Shares
sold and (ii) such holder's adjusted basis in such Shares. In general, such gain
or loss will be treated as arising from sources within the United States for
U.S. federal income tax purposes, unless it is attributable to an office or
other fixed place of business maintained by the U.S. Holder outside the United
States and certain other conditions are satisfied.
The gain or loss recognized will be capital gain or loss. The maximum
non-corporate U.S. federal income tax rate on net capital gains is currently 20%
for capital assets held for more than one year. Net capital gains on the sale of
capital assets held for one year or less are subject to U.S. federal income tax
at ordinary income tax rates. For a corporate U.S. Holder, all capital gains are
currently taxed at the same rate as ordinary income. The deductibility of
capital losses is subject to limitations.
If the cash received by a U.S. Holder is paid in euros, the amount received
will equal the U.S. dollar value of the euros received (determined by
translating the euros received at the "spot rate" for euros on the date payment
is received) regardless of whether the payment is in fact converted into U.S.
dollars. A U.S. Holder's tax basis in euros received will be the U.S. dollar
value thereof at the spot rate at the time such U.S. Holder received such euros.
Any gain or loss recognized by a U.S. Holder on a sale, exchange, retirement or
other disposition of such euros will be ordinary income or loss. Such gain or
loss will generally be income from sources within the United States.
For a discussion of Dutch taxes on U.S. Holders, see "-- Dutch Tax
Consequences" above.
Information Reporting and Backup Withholding. In general, information
reporting requirements will apply to proceeds received on the sale of the Shares
which are paid within the United States (and in certain cases, outside of the
United States) to U.S. Holders other than certain exempt recipients (such as
corporations), and a 31% backup withholding may apply to such amounts if the
U.S. Holder fails to provide an accurate taxpayer identification number or to
report interest and dividends required to be shown on its federal income tax
returns. The amount of any backup withholding from a payment to a U.S. Holder
will be allowed as a credit against the U.S. Holder's United States federal
income tax liability.
SECTION 6. PRICE RANGE OF SHARES.
According to the Company's Annual Report on Form 20-F for the fiscal year
ended December 31, 1998 (the "Company Form 20-F") and information supplied to
Parent by the Company, the Shares were approved for listing on the Nasdaq/NMS
under the trading symbol "BAANF" on May 19, 1995. The Shares have also been
quoted on the Official Market of the Amsterdam Exchanges under the symbol "BAAN"
since May 23, 1995. The Company has never paid or declared cash dividends on the
Shares. The table below sets forth, for the periods indicated, the high and low
closing bid prices per Share on the Nasdaq/NMS and the Amsterdam Exchanges for
the applicable periods. Additionally, more detailed information for the years
1999 and 2000 (through June 12) is contained in Annex II. In respect of the
prices per Share as quoted on the Amsterdam Exchanges, all prices are provided
in euros. Prices for 1998 have been converted from Dutch guilders at an exchange
rate of EUR 1 = NLG 2.20371.
12
<PAGE> 20
<TABLE>
<CAPTION>
AMSTERDAM
NASDAQ/NMS EXCHANGES
------------------- ---------------
U.S. $ PER SHARE EUROS PER SHARE
------------------- ---------------
HIGH LOW HIGH LOW
---- --- ------ -----
<S> <C> <C> <C> <C>
1998:
First Quarter............................................ 50 1/4 29 1/8 46.74 28.86
Second Quarter........................................... 54 1/8 35 3/4 48.92 33.17
Third Quarter............................................ 43 1/4 25 9/16 40.16 22.10
Fourth Quarter........................................... 24 1/4 9 3/4 20.51 8.08
1999:
First Quarter............................................ 14 1/8 7 1/8 12.60 6.40
Second Quarter........................................... 17 5/8 7 3/16 16.15 6.60
Third Quarter............................................ 15 7/8 12 1/4 15.30 10.85
Fourth Quarter........................................... 14 7/8 11 3/4 14.63 11.13
2000:
First Quarter............................................ 14 13/16 4 1/8 14.78 4.20
Second Quarter (through June 13, 2000)................... 5 1/4 1 1/8 5.64 1.26
</TABLE>
On May 24, 2000, the last trading day before the Company publicly confirmed
it was engaged in negotiations with a third party interested in acquiring the
Company, the closing sales price per Share as reported on the Amsterdam
Exchanges was E1.61 and as reported on the Nasdaq/NMS was U.S.$1 11/16. On May
29, 2000, the last trading day before the date Parent and the Company reached
agreement on substantially all of the terms of the Offer Agreement, the reported
closing sales price per Share was E2.69 on the Amsterdam Exchanges; there was no
trading on the Nasdaq/NMS on May 29. On June 13, 2000, the last full trading day
before the commencement of the Offer, the closing sales price per Share as
reported on the Amsterdam Exchanges was E2.86 and as reported on the Nasdaq/NMS
was U.S. $2 21/32. SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS
FOR THE SHARES.
SECTION 7. EFFECT OF THE OFFER ON THE MARKET FOR SHARES; STOCK QUOTATION;
EXCHANGE ACT REGISTRATION AND MARGIN SECURITIES.
The purchase of Shares pursuant to the Offer will reduce the number of
holders of Shares and the number of Shares that might otherwise trade publicly
and could adversely affect the liquidity and market value of the remaining
Shares, if any, held by the public.
Shares are currently listed and traded on the Amsterdam Exchanges, which
constitutes the principal trading market for the Shares. The Shares are also
listed on the Nasdaq/NMS and are registered under the Exchange Act. Depending
upon the number of Shares purchased pursuant to the Offer and the number of
Shares accumulated by other parties, the Shares may be delisted either by the
unilateral action of either such exchange or at the request of the Company. In
addition, the Shares may be eligible for deregistration under the Exchange Act
following consummation of the Offer.
According to the AEX Rules, the Amsterdam Exchanges would consider
delisting the Shares if, among other things, (i) the outstanding amount or
number of Shares should fall below the amount or number of Shares that justified
a listing at the time when the original application for listing was made, (ii)
the trading volume of the Shares on the Amsterdam Exchanges should be too
limited in the opinion of the Amsterdam Exchanges or (iii) other circumstances
arise that would cause the Amsterdam Exchanges to be of the opinion that a
normal and regular market for the Shares cannot be maintained.
The rules for continued inclusion on the Nasdaq/NMS require that an issuer
either (i) have at least 750,000 publicly held shares, held by at least 400
round lot shareholders, with a market value of at least U.S.$5,000,000, have at
least two market makers, have net tangible assets of at least U.S.$4,000,000 and
have a minimum bid price of U.S.$1 or (ii) have at least 1,100,000 publicly held
shares, held by at least 400 round lot shareholders, with a market value of at
least U.S.$15,000,000, have a minimum bid price of U.S.$5, have at least four
market makers and have either (A) a market capitalization of at least
U.S.$50,000,000 or
13
<PAGE> 21
(B) total assets and revenues each of at least U.S.$50,000,000. If the
Nasdaq/NMS were to cease to publish quotations for the Shares, it is possible
that the Shares would continue to trade in the over-the-counter market and that
price or other quotations would be reported by other sources. The extent of the
public market for such Shares and the availability of such quotations would
depend, however, upon such factors as the number of shareholders and/or the
aggregate market value of such Shares remaining at such time, the interest in
maintaining a market in the Shares on the part of securities firms, the possible
termination of registration under the Exchange Act as described below, and other
factors. Offeror cannot predict whether the reduction in the number of Shares
that might otherwise trade publicly would have an adverse or beneficial effect
on the market price for, or marketability of, the Shares or whether it would
cause future market prices to be greater or lesser than the Offer Price.
Under the requirements of the Amsterdam Exchanges, if the Company does not
maintain positive shareholders' equity, the Shares will be subject to "special
listing conditions." On June 6, 2000, the Amsterdam Exchanges issued a press
release stating that although it is likely that the Company would fall into a
negative equity position, it would not impose such special listing conditions
because of the announcement and pendency of the Offer. The press release went on
to state that the position of the Amsterdam Exchanges is based on the Offer
becoming unconditional by August 1, 2000. If the Shares become subject to such
special listing conditions, the liquidity and the trading price of the Shares
may be materially and adversely affected in the absence of the Offer.
The U.S. Registered Shares are currently registered under the Exchange Act.
Registration of the U.S. Registered Shares under the Exchange Act may be
terminated upon application of the Company to the SEC if the U.S. Registered
Shares are neither listed on a national securities exchange nor held by 300 or
more holders of record. Termination of registration of the Shares under the
Exchange Act would substantially reduce the information required to be furnished
by the Company to its shareholders and to the SEC and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
requirements of Rule 13e-3 under the Exchange Act with respect to "going
private" transactions. Furthermore, the ability of "affiliates" of the Company
and persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or 144A promulgated under the U.S. Securities
Act of 1933, as amended (the "Securities Act"), may be impaired or eliminated.
Parent and Offeror intend to cause the Company to seek delisting of the
Shares from the Amsterdam Exchanges and the Nasdaq/NMS and to cause the Company
to apply for termination of registration of the Shares under the Exchange Act as
soon after the completion of the Offer as the requirements for such delisting
and termination are met. If registration of the Shares is not terminated prior
to the Statutory Buy Out Procedure, then the Shares will cease to be listed on
the Amsterdam Exchanges and Nasdaq/NMS and the registration of the Shares under
the Exchange Act will be terminated following the Statutory Buy Out Procedure.
Delisting and/or deregistration of the Shares could materially adversely affect
the liquidity and the market price of the Shares in The Netherlands or the
United States, as applicable.
The Shares are currently "margin securities," as such term is defined under
the rules of the Board of Governors of the U.S. Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of such securities. Depending upon
factors similar to those described above regarding listing and market
quotations, following the Offer it is possible that the Shares might no longer
constitute "margin securities" for purposes of the margin regulations of the
Federal Reserve Board, in which event Shares could no longer be used as
collateral for loans made by brokers.
SECTION 8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as specifically set forth herein, the historical information
concerning the Company contained in this Offer to Purchase, including financial
information, has been taken from or is based upon publicly available documents
and records on file with the SEC, other public sources, or has been provided by
the Company to Parent and Offeror for inclusion in this Offer to Purchase. None
of Parent, Offeror, Parent's financial advisors, the Depositaries or the
Information Agent assumes any responsibility for the accuracy or completeness of
the information concerning the Company contained in such documents and records
or provided by the Company
14
<PAGE> 22
for any failure by the Company to disclose events which may have occurred or may
affect the significance or accuracy of any such information to Parent or
Offeror.
Founded in The Netherlands in 1978, the Company is a leading global
provider of enterprise business software. The Company offers a comprehensive
portfolio of component-based software applications that are in use by more than
7,000 customers at over 15,000 sites worldwide. Software applications and
related services offered by the Company help customers gain competitive
advantage through improvements to core business processes and by supporting
Internet commerce. The Company's products reduce complexity, improve core
business processes, and are flexible in adapting to business changes to optimize
the management of information throughout an enterprise's entire commerce chain.
The Company offers products that address an organization's commerce chain.
Specific business functions and processes supported by the Company's suite of
enterprise applications include automation and control of:
- Corporate Management: accounting/financials.
- Customer Relationship Management (CRM): sales force automation, order
management, product configuration, field service, call center activities,
Operations Management; Enterprise Resource Planning (ERP), Supply Chain
Management (SCM), strategic sourcing and procurement, planning and
scheduling, manufacturing, finished-goods delivery, transportation, and
logistics.
With roots in the ERP market, the Company shipped its first products in
1982. Through a series of acquisitions beginning in 1996, the Company
transitioned from providing "point" solutions to providing an integrated suite
of enterprise applications components to support the complete business
requirements of, principally, manufacturing and engineering companies.
The Company's product strategy is based on delivery of scalable, flexible,
component-based solutions that can be implemented rapidly in heterogeneous
computing environments and rapidly reconfigured as business conditions and needs
change.
The Company has direct and indirect sales, service and support channels
operating in 80 countries throughout Europe, North America, Latin America and
certain Asian, African and Middle Eastern markets.
The Company is a Netherlands holding company with its statutory seat in
Barneveld, The Netherlands, and conducts business through its domestic and
international subsidiaries. Baan Holding B.V., the predecessor of the Company,
was incorporated in 1983. The Company maintains its principal executive offices
at Baron van Nagellstraat 89, 3770 LK Barneveld, The Netherlands, telephone
number +31 (0) 342-428888, with a second headquarters at 2191 Fox Mill Road,
Herndon, Virginia, 20171, USA, telephone number (703) 234-6000.
Set forth below is certain selected historical consolidated financial
information with respect to the Company and its subsidiaries excerpted or
derived from unaudited consolidated financial statements included in the
Company's Form 6-K dated April 24, 2000 (in the case of financial information
for the quarter ended March 31, 2000). This information should be read in
conjunction with the Company's earnings announcement dated April 20, 2000 and
the Company's reports and documents filed by the Company with the SEC.
The consolidated statement of operations for the three months ended March
31, 2000 and the consolidated balance sheet as of March 31, 2000 have been
prepared in accordance with generally accepted accounting principles in The
Netherlands ("Dutch GAAP"). All other financial statements below have been
prepared in accordance with generally accepted accounting principles in the
United States ("U.S. GAAP"). Until the first quarter of 2000, the Company's
financial statements under Dutch GAAP were not significantly different from the
Company's financial statements under U.S. GAAP. In the first quarter of 2000
there were two differences. Under Dutch GAAP, the $44 million increase in equity
through the conversion of outstanding convertible subordinated notes has no
impact to the Company's income statement. Under U.S. GAAP, Baan has recorded
non-cash debt conversion expense charges of $25 million with a corresponding
amount in additional paid in capital. In addition, the Company's income
statement as prepared under U.S. GAAP reflects an additional charge of $9
million concerning the Bear Stearns transaction, with a corresponding
15
<PAGE> 23
amount in additional paid in capital. Total shareholders' equity as of March 31,
2000 under Dutch GAAP and U.S. GAAP is identical.
The Company's financial statements for the year ended December 31, 1999
have not been issued. A holder of Shares should be aware that the Company must
consider the impact of subsequent events and additional information on its
financial statements up through the actual date of issuance. As a result, the
1999 financial statements of the Company could be adjusted based on subsequent
events and additional information.
16
<PAGE> 24
BAAN COMPANY N.V.
CONSOLIDATED STATEMENT OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
2000 1999
-------- --------
<S> <C> <C>
Net revenues:
License revenue........................................... $ 26,612 $ 65,178
Maintenance and service revenue........................... 79,498 110,593
-------- --------
Total net revenues..................................... 106,110 175,771
-------- --------
Cost of revenues:
Cost of license revenue................................... 11,910 14,392
Cost of maintenance and service revenue................... 64,518 84,545
-------- --------
Total cost of revenues................................. 76,428 98,937
-------- --------
Gross profit................................................ 29,682 76,834
-------- --------
Operating and non-recurring expenses:
Sales and marketing....................................... 49,570 49,057
Research and development.................................. 30,636 36,788
General and administrative................................ 21,984 16,862
Non-recurring expenses.................................... 2,047 --
-------- --------
Total operating and non-recurring expenses............. 104,237 102,707
-------- --------
Loss from operations........................................ (74,555) (25,873)
Gain on sale of CODA........................................ 30,995 --
Other income (expense), net................................. 17,815 (1,382)
-------- --------
Loss before income taxes.................................... (25,745) (27,255)
Benefit for income taxes.................................... -- 8,177
-------- --------
Net loss.................................................... $(25,745) $(19,078)
======== ========
Net loss per Share:
Basic..................................................... $ (0.11) $ (0.09)
Diluted................................................... $ (0.11) $ (0.09)
Shares used in computing per Share amounts:
Basic..................................................... 242,360 210,038
Diluted................................................... 242,360 210,038
</TABLE>
17
<PAGE> 25
BAAN COMPANY N.V.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
--------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and marketable securities............................ $ 161,136 $ 196,665
Trade accounts receivable, net............................ 141,034 178,455
Income taxes receivable................................... 4,139 4,569
Other current assets...................................... 64,656 61,017
--------- ---------
Total current assets........................................ 370,965 440,706
--------- ---------
Property and equipment, at cost............................. 117,476 123,447
Less accumulated depreciation............................... (85,123) (86,102)
--------- ---------
Net property and equipment.................................. 32,353 37,345
Software development costs, net............................. 61,099 62,821
Intangible assets, net...................................... 57,459 62,430
Other non-current assets.................................... 10,054 11,087
--------- ---------
Total assets................................................ $ 531,930 $ 614,389
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term borrowings..................................... $ 76 $ 188
Accounts payable and other current liabilities............ 176,046 202,043
Income taxes payable...................................... 26,691 24,925
Deferred revenue.......................................... 122,851 136,067
--------- ---------
Total current liabilities................................... 325,664 363,223
--------- ---------
Long-term debt.............................................. 145,389 189,041
Long-term deferred revenue.................................. 14,261 15,069
Other long-term liabilities................................. 37,861 38,036
Common stock and additional paid-in capital................. 611,237 565,475
Accumulated deficit......................................... (550,172) (524,427)
Accumulated translation adjustment.......................... (52,310) (32,028)
--------- ---------
Shareholders' equity........................................ 8,755 9,020
--------- ---------
Total liabilities and shareholders' equity.................. $ 531,930 $ 614,389
========= =========
</TABLE>
The Company has not yet completed and filed its audited financial results
for the year ended December 31, 1999. Set forth below are unaudited statements
of operations data for the year ended December 31, 1999 and unaudited balance
sheet data as of December 31, 1999 which have been provided to Parent by the
Company. This information should be read in conjunction with the Company's
earnings announcement dated February 3, 2000 and the Company's reports and
documents filed by the Company with the SEC. The statement of operations data
set forth below for the years ended December 31, 1997 and 1998, respectively,
and the balance sheet data as of December 31, 1997 and 1998 have been derived
from the audited consolidated financial statements of the Company included in
the Company Form 20-F for the year ended December 31, 1998. More comprehensive
financial information is included in such reports and other documents filed by
the Company with the SEC, and the following summary is qualified in its entirety
by reference to such reports and such other documents and all the financial
information (including any related
18
<PAGE> 26
notes) contained therein. The reports and other documents filed with the SEC
should be available for inspection and copies thereof should be obtainable in
the manner set forth below under "-- Available Information." The statement of
operations data for the years ended December 31, 1995 and 1996 and the balance
sheet data at December 31, 1995, 1996 and 1997 have been derived from audited
financial statements not included in the Company Form 20-F for the year ended
December 31, 1998. The operating results for any period are not necessarily
indicative of results for any future period.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- -------- --------- -----------
(IN THOUSANDS, EXCEPT PER SHARE DATA) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net revenues(1):
License revenue................. $118,894 $226,135 $367,101 $ 285,778 $ 199,619
License revenue from related
parties...................... -- 14,532 66,325 50,600 5,000
-------- -------- -------- --------- ---------
Total license revenues....... 118,894 240,667 433,426 336,378 204,619
Maintenance and service
revenue...................... 107,791 174,875 246,170 399,271 430,131
-------- -------- -------- --------- ---------
Total net revenues........... 226,685 415,542 679,596 735,649 634,750
-------- -------- -------- --------- ---------
Cost of revenues:
Cost of license revenue......... 6,678 14,442 31,212 30,741 59,787
Write-down of capitalized
costs........................ -- -- -- -- 47,505
Cost of maintenance and service
revenue...................... 86,888 143,746 189,871 302,063 331,206
-------- -------- -------- --------- ---------
Total cost of revenues....... 93,566 158,188 221,083 332,804 438,498
-------- -------- -------- --------- ---------
Gross profit...................... 133,119 257,354 458,513 402,845 196,252
-------- -------- -------- --------- ---------
Operating and non-recurring
expenses:
Sales and marketing............. 62,901 102,191 171,572 272,497 168,779
Research and development........ 21,004 45,843 90,849 151,369 134,733
General and administrative...... 30,091 49,136 72,489 156,148 137,703
Asset write-downs............... -- -- 3,393 36,899 25,306
Loss on disposal of assets...... -- -- -- 58,030 --
Restructuring and other
charges...................... -- -- 8,675 59,972 10,722
-------- -------- -------- --------- ---------
Total operating expenses..... 113,996 197,170 346,978 734,915 477,243
-------- -------- -------- --------- ---------
Income (loss) from operations..... 19,123 60,184 111,535 (332,070) (280,991)
Net interest and other income
(expense)....................... 1,593 (317) 1,975 (3,122) (8,175)
-------- -------- -------- --------- ---------
Income (loss) before income taxes
and minority interest........... 20,716 59,867 113,510 (335,192) (289,166)
Provision (benefit) for income
taxes........................... 9,817 23,255 36,354 (20,000) --
Minority interest in earnings of
consolidated subsidiaries....... (72) -- -- -- --
-------- -------- -------- --------- ---------
Net income (loss)................. $ 10,827 $ 36,612 $ 77,156 $(315,192) $(289,166)
======== ======== ======== ========= =========
Net income (loss) per Share(2)
Basic........................... $ 0.07 $ 0.20 $ 0.40 $ (1.59) $ (1.34)
Diluted......................... $ 0.06 $ 0.19 $ 0.37 $ (1.59) $ (1.34)
Shares used in per share
calculation(2)
Basic........................... 164,929 179,512 190,842 198,519 215,760
Diluted......................... 182,866 196,496 206,071 198,519 215,760
</TABLE>
19
<PAGE> 27
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- -------- --------- -----------
(IN THOUSANDS, EXCEPT PER SHARE DATA) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash, cash equivalents and
marketable securities........... $ 38,522 $240,853 $216,264 $ 206,831 $ 196,665
Working capital................... 73,945 304,863 309,441 123,871 77,483
Total assets...................... 196,416 496,973 722,409 823,151 614,389
Long-term debt, less current
portion......................... 1,835 176,260 200,718 191,013 189,041
Shareholders' equity.............. 117,948 203,016 290,465 156,760 9,020
Dividends paid.................... -- -- -- -- --
</TABLE>
---------------
(1) For the period through December 31, 1998, see the Notes to Consolidated
Financial Statements contained in the Company's Form 20-F for the year ended
December 31, 1998 for information concerning transactions with related
parties.
(2) For the period through December 31, 1998, see the Notes to Consolidated
Financial Statements contained in the Company's Form 20-F for the year ended
December 31, 1998. The weighted average shares outstanding calculations have
been restated because of the adoption of Statement of Financial Accounting
Standards No. 128, Earnings Per Share.
To the best of the Company's knowledge the only shareholders owning five
percent or more of the outstanding Shares are Invensys Holdings Limited and ING
Groep NV. In addition, to the best of the Company's knowledge, the ABP pension
fund holds three to five percent of the outstanding Shares.
Legal Proceedings
The Company is party to legal proceedings from time to time. There is no
such proceeding currently pending that the Company believes is likely to have a
material adverse effect upon the Company's business as a whole. Any Litigation,
however, involves potential risk and potentially significant Litigation costs.
There can be no assurances, therefore, that any Litigation that is now pending
or which may arise in the future will not have a material adverse effect.
In October of 1998, the Company and certain of its current or former
officers and directors were named as defendants in a purported shareholder class
action lawsuit entitled Salerno v. Baan Company N.V. et al., which was brought
in the United States District Court for the District of Columbia. Seven
additional purported shareholder class action lawsuits were subsequently
brought, each in the same court with substantially similar allegations: that the
Company allegedly violated certain of the U.S. securities laws by making
purportedly false and misleading statements about the Company's operations
during the period from in or around the end of January 1997 through mid-October
1998. The several actions have been consolidated and lead plaintiffs and counsel
have been named. On August 4, 1999, the Company moved to dismiss the actions on
grounds, inter alia, that: (i) the U.S. courts do not have subject matter
jurisdiction over the claims of shareholders who purchased Baan securities on
foreign (non-U.S.) exchanges -- and such foreign traders appear to comprise
approximately 80% of the purported class; and (ii) the complaint fails to
adequately plead alleged claims for securities law violations. The motion has
been fully briefed and awaits oral argument and/or decision from the court. All
discovery in the case has been stayed pending resolution of the Company's
motion.
In September of 1999, the Company and certain of its current or former
officers and directors were named as defendants in a separate purported
shareholder class action lawsuit entitled Ratliff v. Baan Company N.V. et al.,
which was brought in the United States District Court for the District of
Georgia. The allegations are that the Company violated certain of the U.S.
securities laws by making purportedly false and misleading statements about the
Company's operations during the period from in or around the end of January 1997
through mid-October 1998, and that such supposed violations give rise to claims
in connection with the Company's acquisition in September 1998 of CAPS
Logistics, Inc. The plaintiffs are seeking rescission of the Company's purchase
of CAPS and return of CAPS to the plaintiffs, and unspecified economic damages.
In or
20
<PAGE> 28
around November 1999 the Company moved to dismiss the action on grounds that the
complaint fails to state a claim for breach of the relevant acquisition
agreement and fails to adequately plead alleged claims for securities law
violations. The motion has been fully briefed and awaits oral argument and/or
decision from the court. All discovery in the case has been stayed pending
resolution of the Company's motion.
Available Information
The Company is subject to the periodic reporting requirements of the
Exchange Act and, in accordance therewith, is required to file reports and other
information with the SEC relating to its business, financial condition and other
matters. Such reports and other information should be available for inspection
at the public reference facilities of the SEC located at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the SEC located in the
Northwestern Atrium Center, 500 West Madison Street (Suite 1400), Chicago,
Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies should be obtainable, by mail, upon payment of the SEC's customary
charges, by writing to the SEC's principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The SEC also maintains a World Wide Web site on the
Internet at http://www.sec.gov that contains reports, proxy statements and other
information regarding registrants that file electronically with the SEC.
The Company files its reports and other information with the SEC
electronically. As a foreign private issuer, the Company is exempt from the
rules under the Exchange Act requiring the filing of proxy statements.
Exchange Rates
The Offer Price is stated in euros and certain other amounts are presented
in U.S. dollars and Dutch guilders. In this Offer to Purchase, references to
"euro," "EUR" or "E" are to euros, references to "NLG" are to Dutch guilders,
references to "U.S. dollars", "U.S. $" or "$" are to United States dollars and
references to "L" are to British Pounds.
On January 1, 1999, the euro was introduced as a new currency in the
following eleven European Union member states (the "Participating Member
States"): Austria, Belgium, Finland, France, Germany, Ireland, Italy,
Luxembourg, The Netherlands, Portugal and Spain. The respective currencies of
the Participating Member States, including the Dutch guilder, will be nondecimal
subdivisions of the euro until January 1, 2002 and to up to six months
thereafter. The exchange rate at which the Dutch guilder has been irrevocably
fixed against the euro is EUR 1 = NLG 2.20371.
Fluctuations in the exchange rate between the euro and the U.S. dollar will
affect the U.S. dollar equivalent of the euro price of the Shares traded on
Amsterdam Exchanges and, as a result, are likely to affect the market price of
the Shares traded on the Nasdaq/NMS in the United States. Such fluctuations will
also affect any U.S. dollar amounts received by holders of U.S. Registered
Shares accepted for payment pursuant to the Offer.
The following table sets forth for the periods indicated the high, low,
average and period-end noon buying rate in New York City for cable transfers in
foreign currencies as certified for customs purposes by the Federal Reserve Bank
of New York, which are not materially different from the Midpoint Rate (the rate
settled each working day at 2:15 p.m. by the Dutch Central Bank). The average
rate means the average of the exchange
21
<PAGE> 29
rates on the last day of each month during a year. The figures for the years
1995 through 1998 have been recalculated using the exchange rate of EUR 1 = NLG
2.20371.
<TABLE>
<CAPTION>
PERIOD AVERAGE
CALENDAR PERIOD END RATE(1) HIGH LOW
--------------- -------- -------- -------- --------
<S> <C> <C> <C> <C>
1995............................................ 1.374312 1.380525 1.450573 1.259695
1996............................................ 1.275960 1.305218 1.374312 1.254960
1997............................................ 1.086749 1.126474 1.275960 1.040615
1998............................................ 1.174060 1.113130 1.214701 1.054911
1999............................................ 1.007000 1.058775 1.181200 1.001600
2000 (through June 12, 2000).................... 0.932800 0.94782 1.033500 0.889100
</TABLE>
---------------
(1) The average of the Noon Buying Rates on the last day of each month during
the period
SECTION 9. CERTAIN INFORMATION CONCERNING PARENT AND OFFEROR.
Parent is a global leader in automation and controls created by the merger
of BTR plc and Siebe plc in February 1999. Parent operates in over 40 countries
and employs over 90,000 people. Parent's business is controls and automation
based, with products ranging from advanced control systems for automating
industrial plants and controlling the environments of buildings, to electronic
devices found in many domestic and commercial appliances. For the year ended
March 31, 2000, Parent had revenues of approximately L9,034 million (U.S.$14,454
million) and operating profit (before goodwill amortization and exceptional
items) of L1,203 million (U.S.$1,925 million). Parent's shareholders' equity at
March 31, 2000 was approximately L1,024 million (U.S.$1,638 million) with
approximately L578 million (U.S.$925 million) of cash and cash equivalents. As
of March 31, 2000, the U.S. dollar/British pound exchange rate was U.S.$1.60 to
L1.00. Parent's offices are located at Invensys House, Carlisle Place, London
SW1P 1BX, United Kingdom.
Offeror is a private limited company organized under the laws of England
and Wales. The offices of Offeror are located at Invensys House, Carlisle Place,
London SW1P 1BX, United Kingdom. Parent indirectly owns all the outstanding
capital stock of Offeror. Offeror is an entity through which Parent holds
investments in various of its businesses.
For certain information concerning the directors and executive officers of
Parent and Offeror, see Schedule I to this Offer to Purchase.
Except as set forth in this Offer to Purchase: (i) none of Parent, Offeror
nor, to the best knowledge of any of the foregoing, any of the persons listed in
Schedule I to this Offer to Purchase or any associate or majority owned
subsidiary of any of the foregoing, beneficially owns or has a right to acquire
any Shares or any other equity securities of the Company, (ii) none of Parent,
Offeror nor, to the best knowledge of any of the foregoing, any of the persons
or entities referred to in clause (i) above or any of their executive officers,
directors, or subsidiaries has effected any transaction in the Shares or any
other equity securities of the Company within 60 days of the date of this Offer
to Purchase, (iii) none of Parent, Offeror nor, to the best knowledge of any of
the foregoing, any of the persons listed in Schedule I to this Offer to Purchase
has any contract, arrangement, understanding or relationship with any other
person with respect to any securities of the Company, including but not limited
to, contracts, arrangements, understandings or relationships concerning the
transfer or voting thereof, joint ventures, loan or option arrangements, puts or
calls, guaranties of loans, guaranties against loss or the giving or withholding
of proxies, consents or authorizations, (iv) since May 31, 1998, there have been
no transactions or business relationships which would be required to be
disclosed under the rules and regulations of the SEC between any of Parent,
Offeror or any of their respective subsidiaries or, to the best knowledge of any
of Parent, Offeror, or any of the persons listed in Schedule I to this Offer to
Purchase, on the one hand, and the Company or any of its executive officers,
directors or affiliates, on the other hand and (v) since May 31, 1998, there
have been no contacts, negotiations or transactions between any of Parent,
Offeror or any of their respective subsidiaries or, to the best knowledge of any
of Parent, Offeror or any of the persons listed in Schedule I to this Offer to
Purchase, on the one hand, and the Company or its subsidiaries or affiliates, on
the other hand, concerning a merger, consolidation or acquisition, tender offer
or
22
<PAGE> 30
other acquisition of securities, an election of directors or a sale or other
transfer of a material amount of assets of the Company or any of its
subsidiaries.
Neither Parent nor Offeror had any relationship with the Company prior to
the commencement of the discussions which led to the execution of the Offer
Agreement. See Section 11. Each of Parent and Offeror disclaims that it is an
"affiliate" of the Company within the meaning of Rule 13e-3 under the Exchange
Act.
Available Information
Neither Offeror nor Parent is subject to the periodic reporting
requirements of the Exchange Act, nor is either of them required to file reports
or other information with respect to its business, financial condition or other
matters. However, in connection with the Offer, Offeror has made filings on
behalf of itself and Parent, with the SEC on a Tender Offer Statement Schedule
TO (also constituting Amendment No. 1 to the Statement in Schedule 13D) (the
"Schedule TO"). This Offer to Purchase, which has been filed as part of the
Schedule TO, does not contain all of the information set forth in the Schedule
TO and the exhibits thereto. These documents and information are available from
the SEC's public reference facility in Washington, D.C. and world wide web site
of the SEC described under "-- Available Information" in Section 8.
SECTION 10. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by Offeror to purchase all of the
outstanding Shares including Shares issuable pursuant to employee stock options
with exercise prices below E2.85 per Share and to pay costs, fees and expenses
related to the Offer is expected to be approximately E858 million (or U.S.$802
million based on the U.S. dollar/euro exchange rate on May 30, 2000, of
U.S.$0.932498 per euro). Offeror intends to obtain all of such funds from
Parent. Parent expects such funds to be provided from Parent's available working
capital and existing credit lines.
SECTION 11. BACKGROUND OF THE OFFER.
On April 7, 2000, representatives of Parent had an initial meeting with
representatives of the Company in The Netherlands. Prior to this meeting, Parent
and the Company executed a mutual non-disclosure agreement effective as of March
24, 2000. Among those present at the April 7, 2000 meeting from the Company were
Pierre Everaert, Interim Chief Executive Officer, and representatives of Lazard
Freres. Parent presented its strategy for development of its business in the
automation and controls markets and the Company discussed its products and
services as well as its current business condition. As a result of this meeting,
the parties agreed there was a basis for further discussions.
On April 17, 2000, representatives of Parent and Goldman Sachs ("Goldman
Sachs" comprises Goldman Sachs International and its affiliates, including
Goldman, Sachs & Co.), the financial advisor to Parent met with representatives
of Lazard Freres in Paris to discuss the recent historical financial performance
of the Company, including non-public information regarding the Company's
preliminary operating results for the quarter ended March 31, 2000.
On April 19, 2000, representatives of Parent and Goldman Sachs met with
representatives of the Company and Lazard Freres in Barneveld, The Netherlands
to discuss the status of the Company's products and technology. In the afternoon
of that day, a further meeting was held in Schiphol, The Netherlands, which also
included other representatives of Parent.
On May 2, 2000, Mr. Everaert, together with representatives of Lazard
Freres met with Allen Yurko, Parent's Chief Executive, along with
representatives of Parent and Goldman Sachs. At that meeting, the parties
discussed the initial conclusions of the financial and technical discussions,
and Mr. Yurko indicated to Mr. Everaert that Parent might be interested in
acquiring the Company but that Parent would need to conduct substantial
additional due diligence before entering into definitive negotiations.
From May 3, 2000 to May 30, 2000, Parent and its legal and financial
advisors continued detailed legal, financial, operational and technical due
diligence of the Company.
23
<PAGE> 31
A telephone conference call was held on May 19, 2000 between Parent and the
Company. Participants in the call included Messrs. Yurko and Everaert as well as
representatives of Lazard Freres and Goldman Sachs. During the call, Mr. Yurko
expressed general satisfaction with the due diligence carried out to date,
outlined his proposed plans for the Company should an acquisition take place and
confirmed that Parent continued to have an interest in acquiring the Company if
agreement could be reached with the Company on price and if agreement could be
reached with certain large shareholders of the Company.
On May 22, 2000, Mr. Everaert and representatives of the Company met with
representatives of Parent and their respective financial and legal advisors in
London to discuss in more detail the due diligence and other work that needed to
be completed, including the drafting of a mutually satisfactory offer agreement
and the negotiation of price, if the terms of a recommended offer from the
Company were to be announced along with Parent's preliminary results
announcement on May 31, 2000.
On May 24, 2000, Parent and the Company entered into a letter agreement
that, subject to certain exceptions, provided for the Company to negotiate with
Parent and a limited number of other parties (all of whom had already contacted
the Company) until May 31, 2000. In addition, on May 24, 2000, legal counsel for
Parent sent a draft of the Offer Agreement to legal counsel for the Company.
Thereafter, commencing May 27, 2000 and continuing through the early morning of
May 31, 2000, the Company and Parent and their respective legal and financial
advisors engaged in definitive negotiations with respect to a possible
acquisition of the Company by Parent. On May 30, 2000, Parent's board of
directors held a meeting where they were informed of the current status of the
proposed transaction and approved the transaction subject to negotiation of
final agreement with a final price no greater than a specified amount and with
such additional terms and conditions as certain members of management approved.
The parties reached final agreement on a price of E2.85 per Share in the evening
(London time) of May 30, 2000 and reached final agreement on other terms and
conditions around 2:00 a.m. (London time) on May 31, 2000. The Offer Agreement,
together with the agreements providing for certain large shareholders to sell
their shares to Parent, was then executed and delivered in the early morning
hours of May 31, 2000, and the transaction was announced in London approximately
five hours later.
SECTION 12. PURPOSE OF THE OFFER; DELISTING AND DEREGISTRATION OF SHARES; PLANS
FOR THE COMPANY; THE TRANSACTION DOCUMENTS.
Purpose of the Offer
The purpose of the Offer is to enable Parent to acquire control of, and the
entire equity interest in, the Company.
Statutory Buy Out Procedure
At such time as Offeror acquires at least 95% of the outstanding issued
Shares, Offeror intends to pursue a statutory buy out procedure of any remaining
minority Shares pursuant to Dutch Law (the "Statutory Buy Out Procedure").
Section 2:92a of the DCC contains a procedure to compel minority shareholders of
a naamloze vennootschap or "N.V." -- a limited liability company such as the
Company, to sell their Shares. As soon as Parent, Offeror and their subsidiaries
hold for their own account at least 95% of the issued share capital of the
Company, Parent, Offeror and their subsidiaries intend to institute proceedings
against the other shareholders (the "Minority Shareholders") of the Company, in
accordance with Section 2:92a of the DCC, in order to force the Minority
Shareholders to transfer their Shares to Offeror. The Statutory Buy Out
Procedure may be initiated at any time upon fulfillment of the 95% ownership
condition. The proceedings are instituted by means of a writ of summons served
upon each of the Minority Shareholders in accordance with the provisions of the
Dutch Code of Civil Procedure. The proceedings are held before the Enterprise
Division of the Court of Appeals in Amsterdam, The Netherlands (the "Enterprise
Division"). The Enterprise Division may render the following judgments:
(i) deny the claim for compulsory acquisition in relation to all
Minority Shareholders if it is established that (a) one or more Minority
Shareholders will incur considerable financial loss by the forced transfer
of their Shares that would not be compensated by the fixed price for their
Shares, (b) one
24
<PAGE> 32
or more Minority Shareholders holds one or more Shares in which, according
to the Company's articles of association (the "Articles"), a special
control right regarding the Company is vested, or (c) the plaintiffs have
waived their rights to institute these proceedings vis-a-vis one or more of
the Minority Shareholders; and
(ii) if the claim is not denied, (a) appoint one or three auditors to
advise the Enterprise Division as to the price to be paid for the Minority
Shareholders' Shares after which the Enterprise Division will fix such
prices or (b) fix the price to be paid for the Shares of the Minority
Shareholders if the Enterprise Division does not deem it necessary to
appoint auditors (for instance, if the plaintiffs have already provided the
Enterprise Division with sufficient evidence that the price offered is
reasonable); and
(iii) if the claim is not denied, award the claim for compulsory
acquisition by way of an order to the Minority Shareholders to transfer
their Shares, as well as an order to the plaintiffs to pay the Minority
Shareholders the price fixed (with interest) against transfer of their
unencumbered Shares.
If the Enterprise Division fixes the price to be paid for the Shares of the
Minority Shareholders, such price shall be increased by the statutory interest
rate applicable in The Netherlands (at present 6% per annum) for the period from
a date determined by the Enterprise Division to the date of payment of the
price. However, any dividends or other distributions made by the Company to its
shareholders during that period will be deemed to be partial payments towards
the price fixed.
The Minority Shareholders will be required to transfer their Shares,
against payment of the price set by the Enterprise Division, only once a final,
nonappealable judgment described in clause (iii) above has been obtained. The
plaintiffs will notify the Minority Shareholders of the date and place of
payment for the Shares and the price to be paid for the Shares by notification
sent directly to the Minority Shareholders whose addresses are known and by
means of an advertisement in a national daily newspaper in The Netherlands. The
plaintiffs may also pay the price for the Minority Shareholders' Shares,
inclusive of interest accrued thereon, in escrow to the State of The
Netherlands. By this payment, the plaintiffs become the holders of the Shares by
operation of law subject to the same notice obligations. Any encumbrance on any
Shares for which payment in escrow has been made will be released from such
Shares and will transfer to the funds paid for such Shares. At such time, the
Minority Shareholders would cease to have any rights in their Shares, including
with respect to voting thereof. Their only right will be the right to receive
payment therefor upon proper transfer of their Shares.
BECAUSE THE STATUTORY BUY OUT PROCEDURE WOULD REQUIRE A COURT PROCEEDING
AND POSSIBLY EXPERT VALUATION, RECEIPT OF FUNDS COULD BE SUBSTANTIALLY DELAYED,
AND THE PRICE PAID IN THE STATUTORY BUY OUT PROCEDURE MAY BE MORE OR LESS THAN
E2.85 PER SHARE.
Those shareholders who do not tender their Shares pursuant to the Offer are
not entitled to receive consideration for their Shares from Offeror unless
Offeror effects the Statutory Buy Out Procedure or otherwise agrees to acquire
such holder's Shares in accordance with applicable Law.
In addition to the Statutory Buy Out Procedure, Offeror currently intends,
after completion of the Offer, to cause the effectuation by the Company and one
or more Dutch subsidiaries of Parent of a legal merger within the meaning of
Section 2:309 of the DCC, provided that the merger consideration if not payable
in cash at the same price per Share as is payable pursuant to the Offer shall
provide equivalent value to such cash amount.
Parent does not currently intend to amend the Company's Articles. However,
if the Company becomes a subsidiary of Parent, at such time, Parent may consider
amending the Company's Articles to contain provisions customary or appropriate
for a subsidiary of Parent.
Plans for the Company
Concurrently with the announcement of the Offer, Parent announced that it
is forming Invensys Software and Systems division ("ISS") of which the Company
will be a part. ISS will be a provider of manufacturing solutions, providing
software and services and the pro forma combined division is expected to have
annual
25
<PAGE> 33
revenues of approximately U.S.$2.0 billion. Bruce Henderson, currently the
division Chief Executive of Parent's Intelligent Automation division, will take
management responsibility for ISS. Laurens van der Tang, currently Executive
Vice President of Research and Development at the Company, will become President
of the Company upon closing of the Offer. It is expected that the Company will
continue operating under the name of "Baan" and will continue to compete in the
global market with the full range of its products. Barneveld, The Netherlands,
will be the headquarters of the Company. The headquarters of ISS will be in
Herndon, Virginia, USA.
The combination of the Company's and Parent's software and systems
businesses will create a leader in manufacturing solutions with the scale to
compete in the global market. ISS will have products in e-business, customer
relationship management and web-enabled enterprise resource planning and supply
chain management.
Parent also intends to establish an effective employee incentivisation
program to retain and attract employees within ISS.
Parent also plans to implement a restructuring and cost management program
with an estimated cost of $400 million over an 18 month period following the
acquisition of the Company. Approximately U.S.$300 million of these costs will
be in cash.
As a result of this program, Parent expects to achieve annualized cost
savings of approximately U.S.$250 million per year. Parent believes that the
restructuring program should return the Company to break even within 12 months.
The Transaction Documents
The Offer Agreement
The following is a summary of the material terms of the Offer Agreement.
This summary is not a complete description of the terms and conditions thereof
and is qualified in its entirety by reference to the full text thereof, which is
incorporated herein by reference and a copy of which has been filed with the SEC
in connection with the Offer as an exhibit to the Schedule TO. The Offer
Agreement may be examined, and copies thereof may be obtained, as set forth in
Section 8.
The Offer. The Offer Agreement provides for Offeror to make the Offer on
the terms described in "Introduction" and Section 1, "Terms of the Offer;
Expiration Date." Offeror's obligation to accept for payment and pay for Shares
tendered in the Offer is subject to the conditions described in Section 14,
"Certain Conditions of the Offer." Offeror may provide for a "subsequent
offering period" as provided in Rule 14d-11 under the Exchange Act after the
purchase of Shares pursuant to the Offer.
Board Representation. The Offer Agreement provides that, promptly upon the
purchase of Shares representing not less than 51% of the outstanding Shares
pursuant to the Offer, the Company will convene an extraordinary general meeting
of shareholders in accordance with applicable law for the election of such
number of directors, rounded up to the next whole number, to serve on the
Supervisory Board and the Board of Management of the Company as will give
Offeror, subject to compliance with Section 14(f) of the Exchange Act,
representation on the Supervisory Board and the Board of Management of the
Company equal to the product of (i) the total number of members of each of the
Supervisory Board and the Board of Management (giving effect to the election of
any additional members pursuant to this section) and (ii) the percentage that
the number of Shares beneficially owned by Parent and/or Offeror (including
Shares accepted for payment in the Offer) bears to the number of Shares
outstanding. The Company will exercise its best efforts to secure the
resignations of such number of members of such Boards as is necessary to enable
Offeror's designees to be elected and will cause Offeror designees to be so
elected. The Company shall take all action required pursuant to Section 14(f) of
the Exchange Act and Rule 14(f)-1 under the Exchange Act in order to
26
<PAGE> 34
fulfill its obligations under this provision and shall include in the Schedule
14D-9 or otherwise timely mail to its shareholders all necessary information to
comply therewith. Prior to the mailing of the Schedule 14D-9 to the Company's
shareholders, Parent will supply to the Company in writing and be solely
responsible for any information with respect to itself and its nominees,
officers, directors and affiliates required by Section 14(f) of and Rule 14(f)-1
under the Exchange Act.
Following the election or appointment of Offeror's designees as described
above and until Parent, directly or indirectly, owns at least 95% of the
outstanding Shares of the Company, each of the Company's Supervisory Board and
the Board of Management shall have at least six members of which at least two
members shall be persons who are members on the date of the Offer Agreement (the
"Continuing Members"). In the event that the number of Continuing Members are
reduced below two for any reason whatsoever, the remaining Continuing Member
will be entitled to designate persons to fill such vacancies who will be deemed
to be Continuing Members. The approval of the Continuing Members will be
required to authorize (and such authorization will constitute the authorization
of the respective Boards on which the Continuing Members serve and no other
action on the part of the Company, including any action by any other Board
member of the Company, will be required to authorize) any termination of the
Offer Agreement by the Company, any amendment of the Offer Agreement requiring
action by the Supervisory Board and/or the Board of Management, any amendment of
the governing instruments of the Company which would adversely affect the rights
of the Company or its shareholders under the Offer Agreement, any extension of
time for performance of any obligation or action under the Offer Agreement by
Parent, Offeror or their affiliates and any enforcement of or any waiver of
compliance with any of the agreements or conditions contained in the Offer
Agreement for the benefit of the Company.
Shareholder Informational Meeting. In connection with the Offer, the
Company will convene an informational extraordinary shareholders meeting
pursuant to Dutch Law. This meeting will be held on June 29, 2000.
Representations and Warranties. The Offer Agreement contains various
representations and warranties of the parties thereto. These include
representations and warranties by the Company with respect to (i) the due
organization, existence and, subject to certain limitations, the qualification,
good standing, corporate or other power and authority of the Company and its
subsidiaries, (ii) the due authorization, execution, and delivery of the Offer
Agreement and the consummation of transactions contemplated thereby, the
validity and enforceability thereof and the absence of any additional required
corporate actions (other than the holding of the informational meeting prior to
the closing of the Offer or any shareholder vote required by a transaction
contemplated by the Offer Agreement) for authorization of the Offer Agreement
and the transaction contemplated thereby, (iii) subject to certain exceptions
and limitations, the compliance by the Company and its subsidiaries with all
applicable laws, statutes, ordinances, rules, regulations, orders, judgments,
and decrees ("Laws") of any national, federal, provincial, state or local
judicial, legislative, executive, administrative or regulatory body or
authority, or any court, arbitration, board or tribunal whether of The
Netherlands, the United States or another country ("Governmental Entity"), (iv)
the capitalization of the Company, including the number of Shares of the Company
outstanding, the number of Shares reserved for issuance on the exercise of
options and similar rights to purchase Shares, (v) the identity, ownership and
jurisdiction of organization of each of the Company's principal operating
subsidiaries and ownership by the Company and its principal operating
subsidiaries of interests or investments in entities other than subsidiaries of
the Company or its principal operating subsidiaries, (vi) subject to certain
exceptions and limitations, the absence of any violations, conflicts or breaches
under the organization documents of the Company or its principal operating
subsidiaries or under contracts of the Company or its subsidiaries that would
result from compliance by the Company with any provision of the Offer Agreement
or the consummation by the Company of any of the transactions contemplated
thereby, (vii) subject to certain exceptions and limitations, compliance with
the Securities Act and the Exchange Act in connection with each report,
schedule, form, statement (information, registration or otherwise) and document
prepared by it since June 30, 1998 (including exhibits and any amendments
thereto) and filed with the SEC (including the financial statements included
therein), (viii) the absence of material misstatements or omissions from the
Schedule 14D-9 or any schedule required to be filed by the Company with the SEC
or the Stichting Toezicht Effectenverkeer, the Schedule 14D-9, the
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<PAGE> 35
information statement, if any, filed by the Company in connection with the
Offer, (ix) the Company's status as a "foreign private issuer," as defined in
the Exchange Act, of whom U.S. holders do not hold more than 40% of the Shares
as determined by Rule 14d-1(d) under the Exchange Act, (x) subject to certain
exceptions and limitations, the absence of pending or (to the knowledge of the
Company) threatened claims, actions, suits, proceedings, arbitrations,
investigations or audits (collectively, "Litigation"), (xi) subject to certain
exceptions and limitations, the absence of certain changes or effects, (xii)
certain tax matters, (xiii) certain employee benefit and ERISA matters, (xiv)
certain labor and employment matters, (xv) certain fees in connection with the
transactions contemplated by the Offer Agreement, (xvi) certain matters relating
to the Company's intellectual property, (xvii) subject to certain limitations,
the possession by the Company and its subsidiaries of necessary franchises,
grants, authorizations, licenses, permits, easements, variances, exceptions,
consents, certificates, approvals and orders of any court, governmental or
regulatory authority, (xviii) certain environmental matters, (xix) subject to
certain exceptions and limitations, title to assets, (xx) certain insurance
policy matters, (xxi) subject to certain limitations, material contracts of the
Company and its subsidiaries including contracts (a) for borrowed money or
guarantees involving a current outstanding principal amount in excess of
U.S.$1,000,000 (or any other currency equivalent), (b) containing material
non-compete covenants by the Company, (c) with any of Fletcher International
Limited, any holder of 5% or more of the outstanding Shares, and their
affiliates, and any officer, director or affiliate of the Company (d) with
members of the Baan family, Vanenburg Group B.V. or Vanenburg Business Systems
or their affiliates, (e) with ten of the most significant customers of the
Company, and (f) relating to or providing for the issuance of any equity
securities of the Company since March 31, 2000, (xxii) the fairness opinion of
Lazard Freres, (xxiii) anti-takeover statutes, (xxiv) the absence of any
required vote of shareholders of the Company to adopt the Offer Agreement or
approve the Offer, and (xxv) year 2000 and euro conversion compliance.
Parent and Offeror have jointly and severally made certain representations
and warranties, including with respect to (i) the due incorporation, existence,
good standing and, subject to certain limitations, corporate power and authority
of Parent and Offeror, (ii) the due authorization, execution and delivery of the
Offer Agreement and the consummation of the transactions contemplated thereby,
and the validity and enforceability thereof, (iii) subject to certain exceptions
and limitations, the absence of consents and approvals necessary for
consummation by Parent and Offeror and the absence of any violations, breaches
or defaults which would result from compliance by Parent and Offeror with any
provision of the Offer Agreement, (iv) the sufficiency of funds available to
Parent and Offeror for the consummation of the Offer and (v) the absence of
material misstatements or omissions in the Schedule TO and the related offer
documents.
Interim Operations. The Company has agreed that from the date of the Offer
Agreement to the earlier of (x) the date of initial purchase by Offeror of
Shares pursuant to the Offer and (y) the date of termination of the Offer
Agreement, with certain exceptions, unless Offeror has consented thereto (which
consent shall not be unreasonably withheld or delayed), the Company shall, and
shall cause each of its subsidiaries: (i) to the extent not inconsistent with
the Company's obligations under the Offer Agreement or any Ancillary Document,
conduct its operations according to its ordinary course of business consistent
with past practice, (ii) to the extent not inconsistent with the Company's
obligations under the Offer Agreement or any Ancillary Document, use its
commercially reasonable efforts to preserve intact its business organizations
and goodwill, keep available the services of its officers and employees and
maintain satisfactory relationships with those persons having business
relationships with them, (iii) upon the discovery thereof, promptly notify
Offeror of the existence of any breach of any representation or warranty
contained in the Offer Agreement (or, in the case of any representation and
warranty that makes no reference to Material Adverse Effect (as defined in the
Offer Agreement), any breach of such representation and warranty in any material
respect) or the occurrence of any event that would cause any representation or
warranty contained in the Offer Agreement no longer to be true and correct (or,
in the case of any representation and warranty that makes no reference to
Material Adverse Effect, to no longer be true and correct in any material
respect), (iv) to promptly deliver to Offeror true and correct copies of any
report, statement or schedule filed with the SEC subsequent to the date of the
Offer Agreement and (v) prior to consummation of the Offer, cause (A) all
indebtedness for borrowed money due and payable to the Company or any of its
subsidiaries from any officers, directors or affiliates thereof to be
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<PAGE> 36
repaid and (B) all related notes and instruments of indebtedness to be cancelled
and terminated without any cost or penalty to the Company or its subsidiaries.
The Company has agreed that from the date of the Offer Agreement to the
earlier of (x) the date of initial purchase by Offeror of Shares pursuant to the
Offer and (y) the date of termination of the Offer Agreement, with certain
exceptions, unless Offeror has consented thereto (which consent shall not be
unreasonably withheld or delayed), the Company shall not, and shall not permit
any of its subsidiaries to, (i) amend its articles of association, certificate
of incorporation or other organizational documents, (ii) issue, sell or pledge
any of its capital shares or other ownership interest in the Company (other than
issuances of Shares in respect of any exercise of share options or conversion of
convertible notes, in either case, outstanding on the date of the Offer
Agreement and disclosed to Offeror) or any of its subsidiaries, or any
securities convertible into or exchangeable for any such shares or ownership
interest, or any rights, warrants or options to acquire or with respect to any
such capital shares, ownership interest, or convertible or exchangeable
securities (or derivative securities in respect of the foregoing), (iii) effect
any share split or otherwise change its capitalization as it exists on the date
of the Offer Agreement, (iv) grant, confer or award any option, warrant,
convertible security or other right to acquire any of its capital shares or take
any action to cause to be exercisable any otherwise unexercisable option under
any existing share option plan (except as otherwise required by the terms of
such unexercisable options), (v) declare, set aside or pay any dividend or make
any other distribution or payment with respect to any of its capital shares or
other ownership interests (other than such payments by any subsidiary of the
Company to another subsidiary of the Company or to the Company), (vi) directly
or indirectly redeem, purchase or otherwise acquire any of the Company's capital
shares or capital shares of its subsidiaries which are not owned by the Company
or its subsidiaries, (vii) sell, lease or otherwise dispose of any of its assets
(including capital stock of subsidiaries), except the sale or disposition of
inventory or the license of the Company's products in the ordinary course of
business or the sale, lease or other disposition of assets that, individually or
in the aggregate, are obsolete or not material to the Company and its
subsidiaries, taken as a whole, (viii) acquire by merger, purchase or any other
manner, any business or entity or otherwise acquire any assets that would be
material, individually or in the aggregate, to the Company and its subsidiaries
taken as a whole, except for purchases of inventory, supplies or capital
equipment in the ordinary course of business consistent with past practice, (ix)
incur or assume any long-term or short-term debt aggregating in excess of
U.S.$1,000,000, (x) assume, guarantee or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the debt or other obligations
of any other person except obligations of its subsidiaries or parent entity
incurred in the ordinary course of business, (xi) make or forgive any loans,
advances or capital contributions to, or investments in, any other person other
than its subsidiary or any parent entity, (xii) grant any share-related or
equity performance awards, (xiii) except as contractually obligated on the date
of the Offer Agreement (but only to the extent a copy of such contractual
commitment, if written, or a written summary of such contractual commitment, if
oral, has been previously provided to Parent) or as otherwise required by
applicable Law, enter into any new employment, severance, consulting or salary
continuation agreements with any officers, directors or employees or, except as
contractually obligated on the date of the Offer Agreement (but only to the
extent written copies or written summaries of oral contracts have been
previously provided to Parent) or as otherwise required by applicable Law, grant
any increases in compensation, benefits or non-equity performance awards, except
for normal merit bonuses or salary increases for non-officer employees
consistent with past practices, (xiv) except to the extent required by Law,
adopt or amend in any material respect any material employee benefit plan or
arrangement, (xv) permit any material insurance policy naming the Company or any
subsidiary of the Company as a beneficiary or a loss payee to be cancelled or
terminated other than in the ordinary course of business, (xvi) settle or
compromise any pending or threatened Litigation for an amount in excess of
U.S.$1,000,000 for any single matter of Litigation, or U.S.$5,000,000 in the
aggregate for all such matters settled or compromised, (xvii) make any tax
election or settle any tax liability other than settlements involving solely the
payment of money (without admission of liability) not to exceed U.S.$1,000,000
or (xviii) agree in writing or otherwise to take any of the foregoing actions;
provided that the Company or any of its subsidiaries will not be prohibited from
agreeing to take any of the foregoing if the agreement's effectiveness is
contingent upon the termination of the Offer Agreement.
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Access to Information. From the date of the Offer Agreement until the
consummation of the Offer, the Company shall, and shall cause its subsidiaries
to, upon reasonable advance notice to the Company, during ordinary business
hours, to the extent legally permitted, (i) give Offeror and its authorized
representatives full access to all books, records, personnel, offices and other
facilities and properties of the Company and its subsidiaries and their
accountants and accountants' work papers, (ii) permit Offeror to make such
copies and inspections thereof as Offeror may reasonably request and (iii)
furnish Offeror with such financial and operating data and other information
with respect to the business and properties of the Company and its subsidiaries
as Offeror may from time to time reasonably request; provided that no
investigation or information furnished pursuant to the Offer Agreement shall
affect any representations or warranties made by the Company in the Offer
Agreement or the conditions to the obligations of Offeror to consummate the
transactions contemplated thereby. All information provided pursuant to the
Offer Agreement will be subject to the confidentiality agreement between Parent
and the Company, dated March 24, 2000.
No Solicitation. The Company has agreed in the Offer Agreement (a) that
from the date of the Offer Agreement to the consummation of the Offer, neither
it nor any of its subsidiaries shall, and it shall direct and use its best
efforts to cause its officers, directors, managing directors, employees, agents
and representatives (including, without limitation, any investment banker,
attorney or accountant retained by it or any of its subsidiaries) (collectively,
"Representatives") not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any proposal or
offer (including, without limitation, any proposal or offer to its shareholders)
with respect to a merger, acquisition, consolidation, recapitalization, business
combination or similar transaction involving, or any purchase of all or any
significant portion of the assets or any equity securities of, the Company or
any of its subsidiaries (any such proposal or offer being hereinafter referred
to as an "Alternative Proposal") or engage in any negotiations concerning, or
provide any confidential information or data to, afford access to the
properties, books or records of the Company or any of its subsidiaries to, or
have any discussions with, any person relating to an Alternative Proposal, or
otherwise facilitate any effort or attempt to make or implement an Alternative
Proposal or any agreement or arrangement requiring the Company to abandon,
terminate or delay the consummation of the Offer or other transactions
contemplated by the Offer Agreement; (b) that it 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, and it
will take the necessary steps to inform such parties of the obligations
undertaken under the Offer Agreement; and (c) that it will notify Offeror
promptly of the identity of the potential acquiror and the terms of such
person's or entity's proposal if any such inquiries or proposals are received
by, any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with, the Company; provided,
however, that these provisions shall not prohibit the Company's Supervisory
Board or Board of Management from (i) prior to the acceptance for payment of
Shares by Offeror pursuant to the Offer, furnishing information to, or entering
into discussions or negotiations with, any person or entity that makes an
unsolicited bona fide proposal to acquire the Company pursuant to a merger,
consolidation, share exchange, purchase of substantially all of the assets of
the Company, a business combination or other similar transaction, if, and only
to the extent that, (A) such proposal was not initially solicited, encouraged or
knowingly facilitated by the Company, its subsidiaries or their Representatives
in violation of the Offer Agreement, (B) if each Board determines in good faith,
after receiving the advice of its outside advisors, including outside counsel
and others, (i) that such Alternative Proposal is more favorable from a
financial point of view as compared to the Offer and (ii) failure to furnish
such information or enter into such discussions or negotiations with such person
would violate the Boards' fiduciary duties, (C) the Boards of the Company
determine in good faith in the exercise of reasonable business judgment that
such proposal is likely to be successfully financed if accepted by shareholders,
and (D) prior to furnishing information to, or entering into discussions or
negotiations with, such person or entity, the Company enters into a
confidentiality agreement with such person or entity no less favorable to the
Company than the confidentiality agreement between Parent and the Company, dated
March 24, 2000, and provides written notice to Offeror to the effect that it is
furnishing information to, or entering into discussions or negotiations with,
such person or entity (additionally, the Offer Agreement requires the Company to
keep Offeror reasonably informed of the status of any such discussions or
negotiations permitted pursuant to the previous sentence (including the identity
of such person or entity and the terms of any proposal)) and to the extent
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applicable, complying with Rule 14e-2(a) under the Exchange Act or applicable
Dutch Law with regard to an Alternative Proposal. Nothing in the provision of
the Offer Agreement described above will permit the Company to terminate the
Offer Agreement (except as described under the heading "-- Termination" below),
enter into any agreement with respect to an Alternative Proposal during the term
of the Offer Agreement or affect any other obligation of the Company under the
Offer Agreement.
Other Agreements. The Offer Agreement provides that, subject to the terms
and conditions provided in the Offer Agreement, the Company, Parent and Offeror
shall: (a) use their reasonable best efforts to cooperate with one another in
(i) determining which filings are required to be made prior to the Expiration
Date or the consummation of the Offer with, and which consents, approvals,
permits or authorizations are required to be obtained prior to the consummation
of the Offer from, Governmental Entities or other third parties in connection
with the execution and delivery of the Offer Agreement and the ancillary
documents and the consummation of the transactions contemplated thereby and (ii)
timely making all such filings and timely seeking all such consents, approvals,
permits, authorizations and waivers; and (b) use their reasonable best efforts
to take, or cause to be taken, all other action and do, or cause to be done, all
other things necessary, proper or appropriate to consummate and make effective
the transactions contemplated by the Offer Agreement.
In the event the Works Councils of the Company shall give negative advice
with respect to the recommendation of the Company's Supervisory Board or Board
of Management in connection with the Offer and has initiated legal proceedings
in the relevant Dutch courts that prevent the consummation of the transactions
contemplated by the Offer Agreement, Parent and the Company shall use good faith
efforts for a period of one month to convert the Works Councils' negative advice
to positive advice. In the event that the Works Councils shall not have so
converted their advice to positive advice during such one month period, the
Company shall be entitled to withdraw or modify its approval or recommendation
in favor of the Offer Agreement and so advise the Company's shareholders and to
terminate the Offer Agreement. On June 14, 2000, the Central Works Council
announced that the Company had received the positive advice of the Central Works
Council on the Offer.
Termination. The Offer Agreement may be terminated at any time prior to
the consummation of the Offer:
(a) by mutual written consent of Offeror and the Company;
(b) by Offeror or the Company:
(i) if the consummation of the Offer shall not have occurred on or
before December 31, 2000 (provided that the right to terminate the Offer
Agreement pursuant to this clause (i) shall not be available to any
party whose failure to fulfill any obligation under the Offer Agreement
has been the cause of or resulted in the failure of the consummation of
the Offer to occur on or before such date);
(ii) if there shall be any Law that makes consummation of the Offer
illegal or prohibited, or if any court of competent jurisdiction or
other Governmental Entity shall have issued an order, judgment, decree
or ruling, or taken any other action restraining, enjoining or otherwise
prohibiting consummation of the Offer and such order, judgment, decree,
ruling or other action shall have become final and non-appealable; or
(iii) if the Offer terminates or expires on account of the failure
of any condition specified in Section 14 without Offeror having
purchased any Shares thereunder (provided that the right to terminate
the Offer Agreement pursuant to this clause (iii) shall not be available
to any party whose failure to fulfill any obligation under the Offer
Agreement has been the cause of or resulted in the failure of any such
condition);
(c) by the Company if there is an Alternative Proposal which the
Company's Board of Management and the Supervisory Board in good faith
determine after receiving the advice of its outside advisors, including
outside counsel and others that (i) such Alternative Proposal is more
favorable from a financial point of view as compared to the Offer and (ii)
the failure to accept such Alternative Proposal and
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terminate the Offer Agreement would violate each Board's fiduciary duties;
provided, however, that the right to terminate the Offer Agreement in such
event shall not be available (i) if the Company has breached in any
material respect its obligations with respect to Alternative Proposals, or
(ii) if prior to or concurrently with any purported termination pursuant to
this clause (c), the Company shall not have paid the Termination Fee (as
defined below) or (iii) if the Company has not provided Offeror with five
business days' prior written notice of its intent to terminate the Offer
Agreement and has not delivered to Offeror a copy of the written agreement
embodying the Alternative Proposal in its then most definitive form; and
provided further that the Company may not approve or recommend approval of
an Alternative Proposal unless it complies with its obligations under the
Offer Agreement and terminates the Offer Agreement pursuant to the
provision described in this clause (c); or
(d) by Offeror if either of the Board of Management and the
Supervisory Board shall have failed to recommend, or shall have withdrawn,
modified or amended its approval or recommendation of the Offer, or shall
have approved or recommended acceptance of any Alternative Proposal or
shall have resolved to do any of the foregoing.
Fees and Expenses. Whether or not the Offer is consummated, all fees,
costs and expenses incurred in connection with the Offer Agreement and the
transactions contemplated by the Offer Agreement shall be paid by the party
incurring such fees, costs and expenses.
The Offer Agreement provides that, under certain circumstances, the Company
shall pay to Offeror a fee equal to E22,800,000 (the "Termination Fee"). The
Company is obligated to pay the Termination Fee under the following
circumstances:
(1) immediately if (i) a corporation, entity, "group" or "person"
(each as defined in the Exchange Act), other than Offeror, shall have
acquired beneficial ownership of a majority of the outstanding Shares and
Offeror or the Company terminates the Offer Agreement without Offeror
having purchased any Shares under the Offer; or (ii) the Company terminates
the Offer Agreement because there is an Alternative Proposal which each
Board determines, in good faith after receiving the advice of its outside
advisors, including outside counsel and others that such Alternative
Proposal is more favorable from a financial point of view as compared to
the Offer and the failure to accept such Alternative Proposal would violate
each Board's fiduciary duties; and
(2) if an Alternative Proposal is made known to the Company or has
been made directly to shareholders of the Company generally or is otherwise
publicly known or any person has publicly announced an intention (whether
or not conditional) to make an Alternative Proposal and thereafter
(i) Offeror terminates the Offer Agreement because either of the
Boards has failed to recommend, or have withdrawn, modified or amended
its approval or recommendation of the Offer, or approved or recommended
acceptance of any Alternative Proposal, or resolved to do any of the
foregoing,
(ii) Offeror or the Company terminates the Offer Agreement because
(x) the Offer has not been consummated on or before December 31, 2000
(provided that such party has the right to terminate the Offer
Agreement) or (y) failure of the Minimum Condition to the Offer to be
satisfied prior to the expiration of the Offer, unless in the case of
(x) and (y) more than 51% of the outstanding Shares have been tendered
and not withdrawn or held by Parent or its affiliates, or
(iii) the Company terminates the Offer Agreement in the event that
the Works Councils at the Company and/or its subsidiaries have given
negative advice with respect to the recommendation of the Boards in
connection with the Offer and after one month such negative advice has
not been converted to positive advice;
provided that no such Termination Fee will be payable under this clause (2)
unless an Alternative Proposal is consummated within 12 months of such
termination.
Indemnification. Following the consummation of the Offer, Parent and
Offeror all cause the governing instruments of the Company to contain provisions
with respect to indemnification substantially to the same
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effect as those set forth in the governing instruments of the Company on the
date of the Offer Agreement, which provisions shall not be amended, modified or
otherwise repealed for a period of six years after the consummation of the Offer
in any manner that would adversely affect the rights thereunder as of the date
of consummation of the Offer of individuals who on the date of consummation of
the Offer were members of the Boards, officers, employees or agents of the
Company, unless such modification is required after the date of consummation of
the Offer by applicable Law.
Parent has also agreed to cause the Company, to the fullest extent
permitted under applicable Law or under the Company's governing instruments or
any indemnification agreement in effect as of the date hereof, to indemnify and
hold harmless, each present and former member of the Boards, officer or employee
of the Company or any of its subsidiaries (collectively, the "Indemnified
Parties") against any costs or expenses (including attorneys' fees), judgments,
fines, losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, (x) arising out of or
pertaining to the transactions contemplated by the Offer Agreement or (y)
otherwise with respect to any acts or omissions occurring at or prior to the
date of consummation of the Offer, to the same extent as provided in the
Company's governing instruments or any applicable contract or agreement as in
effect on the date hereof, in each case for a period of six years after the date
hereof. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the date of consummation of the
Offer) and subject to the specific terms of any indemnification contract, (i)
after the date of consummation of the Offer, the Company shall pay the
reasonable fees and expenses of any counsel retained by the Indemnified Parties,
promptly after statements therefore are received and (ii) the Company shall
cooperate in the defense of any such matter; provided, however, that in the
event that any claim or claims for indemnification are asserted or made within
such six-year period, all rights to indemnification in respect of any such claim
or claims shall continue until the disposition of any and all such claims; and,
provided, further, that any determination to be made with respect to whether an
Indemnified Party's conduct complies with the standards set forth under
applicable Law, the Company's governing instruments or any such agreement, as
the case may be, shall be made by independent legal counsel, which shall be
selected by such Indemnified Party and reasonably acceptable to Parent.
In addition, the Offer Agreement provides that the Company will provide,
for a period of not less than six years after the date of consummation of the
Offer, the Company's current directors and officers insurance and
indemnification policy that provides coverage for events occurring at or prior
to the date of consummation of the Offer (the "D&O Insurance") that is no less
favorable than the existing policy or, if substantially equivalent insurance
coverage is unavailable, the best available coverage; provided, however, that
the Company shall not be required to pay an annual premium for the D&O Insurance
in excess of one hundred seventy-five percent (175%) of the annual premium
currently paid by the Company for such insurance, but in the case the Company is
required to expend amounts for annual premiums in excess of the Company's
current expenditures, it shall, subject to such 175% limitation, purchase as
much of such coverage as possible for such amount; in no event, however, shall
the Company be required to provide coverage in excess of current coverage.
Amendment. To the extent permitted by applicable law, the Offer Agreement
may be amended by action taken by or on behalf of its Company's Board of
Management and Supervisory Board and Parent and Offeror jointly at any time. The
Offer Agreement may not be amended except by an instrument in writing signed on
behalf of all of the parties. From the completion of such Offer, until Parent
owns directly or indirectly, 95% of the outstanding Shares, termination and
certain amendments of and waivers under the Offer Agreement will require the
approval of the Continuing Members. See "-- Board Representation" above.
The Share Purchase Agreements.
The following is a summary of the material terms of various share purchase
agreements between Parent and certain major holders of Shares (the "Share
Purchase Agreements"). This summary is not a complete description of the terms
and conditions of the Share Purchase Agreements and is qualified in its entirety
by reference to the full text thereof, which is incorporated herein by reference
and a copy of which has been filed with the SEC as an exhibit to the Schedule
TO. The rights and obligations to purchase Shares under the
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agreements described above were assigned by Parent to Offeror prior to
completion of such purchases and Offeror completed all such purchases described
below.
Jan Baan. Jan Baan and Parent (on behalf of itself and a contemplated
subsidiary), entered into a Share Purchase Agreement dated as of May 31, 2000
(the "Baan Purchase Agreement"). Pursuant to the Baan Purchase Agreement, Jan
Baan agreed to sell to Parent 256,410 Shares at the Offer Price. Jan Baan
represented and warranted that, at the closing of the transactions contemplated
under the Baan Purchase Agreement, he held free and clear title to such Shares
and all necessary authorizations had taken place to transfer such Shares to
Parent. The transfer of 256,410 Shares pursuant to the Baan Purchase Agreement
occurred on June 5, 2000.
Stichting Oikonomos. Stichting Oikonomos and Parent (on behalf of itself
and a contemplated subsidiary), entered into a Share Purchase Agreement dated as
of May 31, 2000 (the "Oikonomos Purchase Agreement"). Pursuant to the Oikonomos
Purchase Agreement, Stichting Oikonomos agreed to sell to Parent 386,542 Shares
at the Offer Price. Stichting Oikonomos represented and warranted that, at the
closing of the transactions contemplated under the Oikonomos Purchase Agreement,
it held free and clear title to such Shares. The transfer of 386,542 Shares
pursuant to the Oikonomos Purchase Agreement occurred on June 5, 2000.
Vanenburg Group B.V. Vanenburg Group B.V. and Parent (on behalf of itself
and a contemplated subsidiary), entered into a Share Purchase Agreement dated as
of May 31, 2000 and amended on June 2, 2000 (the "Vanenburg Purchase
Agreement"). Pursuant to the Vanenburg Purchase Agreement, Vanenburg Group B.V.
agreed to sell to Offeror 14,817,528 Shares at the Offer Price. Vanenburg Group
B.V. represented and warranted that, at the closing of the transactions
contemplated under the Vanenburg Purchase Agreement, it held free and clear
title to such Shares. Transfer of 13,812,028 Shares pursuant to the Vanenburg
Purchase Agreement occurred on June 5, 2000 and transfer of 1,005,500 Shares
occurred on June 8, 2000. Based on the annual accounts of 1998, the economic
interest in Vanenburg Group B.V. is held by Stichting Oikonomos; however, the
ultimate voting control in respect of such interest rests with Jan Baan and J.G.
Paul Baan.
General Atlantic Partners. General Atlantic Partners II, L.P., General
Atlantic Partners V, L.P., General Atlantic Partners 10, L.P., GAP Coinvestment
Partners, L.P. (together, the "GAP Sellers") and Parent entered into a Share
Purchase Agreement dated as of May 30, 2000 (the "GAP Purchase Agreement").
Pursuant to the GAP Purchase Agreement, the GAP Sellers agreed to sell to
Offeror 5,105,570 Shares at the U.S. dollar equivalent of the Offer Price. The
GAP Sellers represented and warranted that, at the Closing of the transactions
contemplated under the GAP Purchase Agreement, they held free and clear title to
such Shares. Transfer of the 5,105,570 Shares pursuant to the GAP Purchase
Agreement occurred at closings occurring on June 2, 2000 and on June 5, 2000.
Fletcher International Limited. The Company and Fletcher International
Limited ("Fletcher") entered into a Termination and Standstill Agreement dated
as of May 29, 2000 (the "Fletcher Agreement"). Company and Fletcher had
previously entered into a Share Rights Agreement dated as of December 31, 1998
(as amended on November 24, 1999, the "Share Rights Agreement") under which
Fletcher agreed to make an equity investment in the Company. In exchange, the
Company issued to Fletcher rights to purchase Shares. Under the Share Rights
Agreement, Fletcher was permitted to purchase Shares from the Company from time
to time at prices based on historical trading prices. Pursuant to the Fletcher
Agreement (i) Fletcher covenanted that it would not, until the earlier of (a)
December 31, 2000 and (b) the date that the Company publicly announces it is no
longer pursuing strategic alternatives involving a sale or other disposition of
the Company and no person shall have publicly announced that a proposed
Transaction is pending (the earlier of such dates is the "Fletcher Expiration
Date"), exercise any of its rights or acquire any Shares under the Share Rights
Agreement or otherwise, and (ii) Fletcher agreed to sell to the Company
8,121,236 Shares held by Fletcher at the U.S. dollar equivalent price of the
Offer Price. The Company and Fletcher also agreed that if a Transaction is
consummated prior to the Fletcher Expiration Date, then the Company will pay
Fletcher the sum of (a) U.S.$10,000,000 in exchange for extinguishing its
unexercised rights and (b) U.S.$16,623,392.48 (plus interest at 8.5% per year
after May 29, 2000) in repayment of monies already advanced to the Company
34
<PAGE> 42
but not yet converted into Shares. Fletcher and the Company agreed that, upon
such payment, the Share Rights Agreement shall be terminated and that the Shares
Rights Agreement and all rights granted thereunder shall be null and void and of
no further force or effect. Fletcher represented and warranted to the Company
that as of the date of the Fletcher Agreement it held free and clear title to
its Shares other than an identified lien that was released prior to the Share
purchase. The Company and Parent entered into an Assignment and Assumption
Agreement regarding the Fletcher Agreement dated as of May 31, 2000 (the
"Assignment Agreement"). Pursuant to the Assignment Agreement, the Company
transferred and assigned to Parent all of its rights to purchase Shares pursuant
to the Fletcher Agreement. Parent subsequently assigned these rights to Offeror.
The transfer of 8,121,236 Shares to Offeror pursuant to the Fletcher Agreement
occurred on June 5, 2000.
As used above, the term "Transaction" means a transaction or series of
transactions in which a party or group acting in concert, other than Fletcher or
any of its affiliates, purchases or otherwise acquires more than 50% of the then
outstanding Shares, or (ii) all or substantially all of the assets of the
Company are sold, leased or otherwise transferred to one or more parties other
than Fletcher or any of its affiliates or (iii) the Company is merged with
and/or into another entity in which the shareholders of the Company as of the
date of the Fletcher Agreement do not hold more than 50% of the voting power of
the resulting entity.
GSI Purchase Letter. On June 2, 2000, Parent entered into a letter
agreement with GSI whereby Parent authorized GSI to purchase up to an aggregate
of E250 million worth of Shares (unless a higher number is authorized), at a
price of no more than E2.85 per Share, in purchases outside of the United
States. These purchases by GSI are for the account of Offeror.
The table below sets forth purchases of Shares by Offeror through its agent
GSI, from June 2, 2000 through June 12, 2000.
<TABLE>
<CAPTION>
APPROXIMATE PRICE PER SHARE
(EURO)
DATE NO. OF SHARES PURCHASED (EXCLUSIVE OF COMMISSIONS)
---- ----------------------- ---------------------------
<S> <C> <C>
6/2/2000 1,096,382 2.81
6/5/2000 5,500,000 2.81
6/6/2000 4,043,133 2.83
6/7/2000 2,220,629 2.83
6/8/2000 3,536,160 2.83
6/9/2000 1,222,736 2.85
6/12/2000 -- --
</TABLE>
SECTION 13. DIVIDENDS AND DISTRIBUTIONS.
Pursuant to the terms of the Offer Agreement, from and after the date of
the Offer Agreement until the consummation of the Offer, unless Offeror has
consented in writing thereto, the Company shall not, and shall not permit its
subsidiaries to, (a) effect any share split or otherwise change its
capitalization as it exists on the date of the Offer Agreement; (b) declare, set
aside or pay any dividend or make any other distribution or payment with respect
to any of its capital shares or other ownership interests (other than such
payments by its subsidiaries to the Company); or (c) directly or indirectly
redeem, purchase or otherwise acquire any of its capital shares or capital
shares of its subsidiaries.
SECTION 14. CERTAIN CONDITIONS TO THE OFFER.
Notwithstanding any other term of the Offer, Offeror shall not be required
to accept for payment or pay for, subject to any applicable rules and
regulations of the SEC and applicable Dutch Law, any Shares not theretofore
accepted for payment or paid for and may terminate or amend the Offer as to such
Shares to the extent permitted by the Offer Agreement, unless there shall have
been validly tendered and not withdrawn prior to the expiration of the Offer
that number of Shares which would represent at least 95% of the outstanding
Shares (including any Shares previously acquired by Parent, Offeror and their
subsidiaries) and
35
<PAGE> 43
any waiting period under the U.S. Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and any applicable mandatory waiting periods under any
applicable non-U.S. Laws, in each case, applicable to the purchase of Shares
pursuant to the Offer shall have been expired or terminated. Furthermore,
notwithstanding any other term of the Offer or the Offer Agreement, Offeror
shall not be required to accept for payment or, subject as aforesaid, to pay for
any Shares not theretofore accepted for payment or paid for, and may terminate
or amend the Offer to the extent permitted by the Offer Agreement, if at any
time on or after the date of the Offer Agreement and before the acceptance of
such Shares for payment or the payment therefor, any of the following conditions
shall exist or occur and remain in effect:
(a) there shall have been instituted and pending any Litigation by any
Governmental Entity or person (other than, with respect to any Litigation
brought by a person (other than a Governmental Entity), any such action or
proceeding in which a motion for a temporary restraining order, a
preliminary injunction or a permanent injunction shall have been denied or
shall have expired, or a judicial order granting any such temporary
restraining order, preliminary injunction or permanent injunction shall
have been reversed on appeal and not reinstated), that seeks to (i)
challenge the acquisition by Offeror (or any of its affiliates) of Shares
pursuant to the Offer or restrain or prohibit the making or consummation of
the Offer, impose limitations on the ability of Offeror (or any of its
affiliates) effectively to acquire or hold, or to require Offeror or the
Company or any of their respective affiliates or subsidiaries to dispose of
or hold separate, any material portion of their assets or the business of
any one of them, (iii) impose limitations on the ability of Offeror or its
affiliates to exercise full rights of ownership of the Shares purchased by
it, including, without limitation, the right to vote the Shares purchased
by it on all matters properly presented to the shareholders of the Company,
provided, that, if such Litigation is by a person other than a Governmental
Entity, such litigation is reasonably likely to have a Material Adverse
Effect or materially and adversely affecting the likelihood of consummation
of the Offer; or
(b) there shall have been promulgated, enacted, entered, enforced or
deemed applicable to the Offer, by any Governmental Entity any Law that
would reasonably be expected to result in any of the consequences referred
to in clause (a) above; or
(c) the Offer Agreement shall have been terminated in accordance with
its terms; or
(d) (i) any of the representations and warranties made by the Company
in the Offer Agreement (which for purposes of this clause (d) be
interpreted without giving effect to any materiality or Material Adverse
Effect qualification contained in such representation or warranty) shall
not have been true and correct in all respects when made, or shall
thereafter have ceased to be true and correct in all respects as if made at
the scheduled or extended expiration of the Offer (except to the extent
that any such representation or warranty refers specifically to another
date, in which case such representation or warranty shall be true and
correct in all respects as of such other date), except to the extent that
any such failure to be true and correct, individually and in the aggregate
with all such other failures, would not have a Material Adverse Effect or
(ii) the Company shall have materially breached or failed to comply in any
material respect with any of its material obligations under the Offer
Agreement except to the extent that any such breach or failure to comply,
individually or in the aggregate with all such other breaches or failures,
would not have a Material Adverse Effect; or
(e) any corporation, entity, "group" or "person" (each as defined in
the Exchange Act), other than Offeror, shall have acquired beneficial
ownership of a majority of the outstanding Shares; or
(f) the Company's Board of Management Directors or Supervisory Board
shall have modified or amended its recommendation of the Offer in any
manner adverse to Offeror shall have withdrawn its recommendation of the
Offer or shall have approved or recommended acceptance of any Alternative
Proposal or shall have resolved to do any of the foregoing; or
(g) since the date of the Offer Agreement, any change or event shall
have occurred which, individually or in the aggregate, has had, or is
reasonably likely to have, a Material Adverse Effect; or
(h) the parties shall have not received clearance of the European
Union Merger Task Force; or
36
<PAGE> 44
(i) the Works Councils of the Company and any of its subsidiaries in
The Netherlands shall have given a negative advice with respect to the
recommendation of the Boards in connection with the Offer contemplated by
the Offer Agreement and have initiated legal proceedings in the relevant
Dutch courts to prevent the consummation of the transactions contemplated
by the Offer Agreement.
The foregoing conditions may be asserted by Offeror regardless of the
circumstances (excluding any action or inaction by Parent or Offeror) giving
rise to any such condition and may be waived by Offeror, in whole or in part, at
any time and from time to time, in the reasonable discretion of Offeror. The
failure by Offeror at any time to exercise any of the foregoing rights will not
be deemed a waiver of any right, the waiver of such right with respect to any
particular facts or circumstances shall not be deemed a waiver with respect to
any other facts or circumstances, and each right will be deemed an ongoing right
which may be asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions, all
tendered Shares shall promptly be returned by the Depositaries to the tendering
shareholders.
Under Dutch Law, any change in the terms of the Offer following
commencement thereof could require the commencement of a new offer and the
termination of the original offer in accordance with its terms. In the event of
any such termination, Offeror will return all tendered Shares to tendering
shareholders. Shareholders would then have the opportunity to tender their
Shares in any new offer. With respect to immaterial changes in the terms of the
Offer, however, the Dutch Merger Committee could grant an exemption from the
requirement to commence a new offer. Any such exemption would likely be
conditioned on Offeror (i) publicly disclosing the receipt of the exemption and
the nature of the change in the Offer and (ii) providing shareholders that
tendered Shares prior to such change the right to withdraw such Shares. Offeror
is not aware of any provision of Dutch Law that addresses the types of changes
that would constitute an "immaterial change" for these purposes, although
Offeror has been advised that a reduction of the Offer Price or a change to
material Offer conditions would not constitute an "immaterial change." Offeror
has also been advised that the Dutch Merger Committee has granted exemptions in
cases where the offer consideration has been increased.
SECTION 15. CERTAIN REGULATORY AND LEGAL MATTERS.
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the SEC and other publicly available
information concerning the Company, as well as certain representations made to
Parent and Offeror in the Offer Agreement by the Company, neither Parent nor
Offeror is aware of any license or regulatory permit that appears to be material
to the business of the Company and its subsidiaries, taken as a whole, that
might be adversely affected by Offeror's acquisition of Shares as contemplated
by this Offer to Purchase or of any approval or other action by any Governmental
Entity that would be required for the acquisition or ownership of Shares by
Offeror as contemplated herein. Should any such approval or other action be
required, Offeror and Parent currently contemplate that such approval or other
action will be sought. While, except as otherwise expressly described in this
Section 15, Offeror does not currently intend to delay the acceptance for
payment of, or payment for, Shares tendered pursuant to the Offer, pending the
outcome of any such matter, there can be no assurance that any such approval or
other action, if needed, would be obtained or would be obtained without
substantial conditions or that failure to obtain any such approval or other
action might not result in consequences adverse to the Company's business, or
that certain parts of the Company's business might not have to be disposed of if
such approvals were not obtained or such other actions were not taken or in
order to obtain any such approval or other action. If certain types of adverse
action are taken with respect to the matters discussed below (or if any required
governmental approval is not obtained), Offeror could decline to accept for
payment or pay for any Shares tendered. See Section 14 for certain conditions to
the Offer.
U.S. Antitrust. The Federal Trade Commission (the "FTC") and the Antitrust
Division of the United States Department of Justice frequently scrutinize the
legality under the antitrust laws of transactions such as Offeror's proposed
acquisition of the Company. At any time before or after Offeror's purchase of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it
37
<PAGE> 45
deems necessary or desirable in the public interest, including seeking to enjoin
the purchase of Shares pursuant to the Offer or seeking the divestiture of
Shares acquired by Offeror or the divestiture of substantial assets of Parent or
its subsidiaries, or the Company or its subsidiaries. Private parties may also
bring legal action under the antitrust laws under certain circumstances. There
can be no assurance that a challenge to the Offer on antitrust grounds will not
be made or, if such a challenge is made, of the results thereof.
European Commission. The present Offer is subject to the approval of the
European Commission under the Merger Regulation. Parent and Company each conduct
substantial operations within the European Economic Area. The Merger Regulation
and Article 57 of the EEA Agreement require that concentrations with a
"Community dimension" be notified to the European Commission for review and
approval for compatibility with competition law prior to being put into effect.
When a concentration (such as the present Offer) falls within the scope of the
Merger Regulations, the European Commission, as opposed to individual member
states, has exclusive jurisdiction to review that offer, subject to certain
exceptions.
Parent filed the required notification on June 5, 2000, to the European
Commission. The Commission is now examining this notification, and has one month
to approve the transaction, or to decide to investigate the transaction in more
depth.
SECTION 16. FEES AND EXPENSES.
Parent has retained D.F. King & Co., Inc. as Information Agent, Morgan
Guaranty Trust Company of New York as the U.S. Depositary and ABN AMRO Bank N.V.
as the Dutch Depositary in connection with the Offer. Each of the Information
Agent, the U.S. Depositary and the Dutch Depositary will receive reasonable and
customary compensation for their services, be reimbursed for certain reasonable
out-of-pocket expenses and be indemnified against certain liabilities and
expenses in connection therewith, including certain liabilities under the
federal securities laws.
Except as described herein, neither Offeror nor Parent will pay any fees or
commissions to any broker or dealer or other person to make solicitations or
recommendations in connection with the Offer. Brokers, dealers, banks and trust
companies will be reimbursed by Offeror upon request for customary mailing and
handling expenses incurred by them in forwarding material to their customers.
SECTION 17. MISCELLANEOUS.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the Laws of such
jurisdiction. Neither Offeror nor Parent is aware of any jurisdiction in which
the making of the Offer or the tender of Shares in connection therewith would
not be in compliance with the Laws of such jurisdiction. If Offeror or Parent
becomes aware of any state Law prohibiting the making of the Offer or the
acceptance of Shares pursuant thereto in such state, Offeror will make a good
faith effort to comply with any such state Law or seek to have such state Law
declared inapplicable to the Offer. If, after such good faith effort, Offeror
cannot comply with any such state Law, the Offer will not be made to (nor will
tenders be accepted from or on behalf of) the holders of Shares in such
jurisdiction. In any jurisdiction where the securities, blue sky or other Laws
require the Offer to be made by a licensed broker or dealer, the Offer will be
made on behalf of Offeror by one or more registered brokers or dealers that are
licensed under the Laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF OFFEROR OR PARENT NOT CONTAINED HEREIN OR IN THE
LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER THE DELIVERY OF THIS
OFFER TO PURCHASE NOR ANY PURCHASE PURSUANT TO THE OFFER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF OFFEROR, PARENT OR THE COMPANY SINCE THE DATE AS OF WHICH INFORMATION
IS FURNISHED OR THE DATE OF THIS OFFER TO PURCHASE.
Offeror or Parent has filed with the SEC the Schedule TO pursuant to Rule
14d-3 under the Exchange Act, furnishing certain additional information with
respect to the Offer. In addition, the Company has filed
38
<PAGE> 46
with the SEC the Schedule 14D-9 pursuant to Rule 14d-9 under the Exchange Act,
setting forth its recommendation with respect to the Offer and the reasons for
such recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Sections 8 and 9 (except that they will not be available at the regional offices
of the SEC).
To the extent possible, the Company is providing Offeror with its list of
shareholders and security position listings for the purpose of disseminating the
Offer to holders of Shares. This Offer to Purchase and the related Letter of
Transmittal and other relevant materials will be mailed by Offeror to record
holders of Shares and will be furnished by Offeror to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the shareholders list or, if applicable, who are
listed as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of Shares.
Goldman Sachs are acting as financial advisors to Parent in respect of the
Offer. Lazard Freres is acting as financial advisor to Baan in respect of the
Offer.
SECTION 18. OTHER STATEMENTS REQUIRED BY THE DUTCH MERGER CODE
Certain Notices. The Dutch Merger Committee, the trade unions involved and
the Amsterdam Exchanges have been informed of the Offer. Dutch counsel to the
Company has received a confirmation of notifications relating to compliance with
the Dutch Merger Code. The Dutch Merger Committee has assumed that the
requirements of the Dutch Merger Code have been met or will be met correctly,
unless data, notifications or complaints will be made known to the Dutch Merger
Committee possibly showing the contrary. Furthermore, the Dutch Merger Committee
has indicated that it has at all times the authority to ask for such information
as it deems necessary to judge any merger transaction sufficiently.
Cross-Ownership. The Company does not own any Shares of capital stock of
Parent or Offeror. Parent and Offeror, respectively, own Shares as described in
Section 12 of this Offer under the heading "-- The Share Purchase Agreements."
Commitments. At the time of publication of this Offer to Purchase, no
shareholders of the Company have yet made known their intended tendering of
Shares in connection with the Offer, except for the members of the Board of
Management and the Supervisory Board of the Company who hold a combined interest
of in excess of approximately 800,000 Shares, or 0.3%, in the Company.
Payments to Supervisory Board Members. Upon the consummation of the Offer,
certain current Supervisory Board members are expected to resign. See Section
12. No payment will be made to resigning board members other than ordinary
compensation payable in respect of such board member's tenure.
Offer Price. The Offer Price was determined as part of the overall
negotiations between Parent and the Company regarding the Offer, taking into
account the other terms of the transaction. In particular, determination of the
Offer Price was based on the trading price of the Shares shortly before
execution of the Offer Agreement and the recent financial results of the
Company.
Personal Statements. The personal statements as referred to in Section 8
of the Dutch Merger Code have been or are being provided to the Dutch Merger
Committee.
Statement of Responsibility. The following statement of responsibility is
being furnished in compliance with the Dutch Merger Code. The information
included in sections 9, 10 and 16 and the information included in Schedule I of
this Offer to Purchase has been provided by Parent and Offeror. The information
included in sections 8 and 13 of this Offer to Purchase has been provided by the
Company. The information included in the other sections of this Offer to
Purchase (including the information up to The Offer as well as the Annexes) has
been provided by Parent, Offeror and/or the Company. Parent and Offeror, on the
one hand, and the Company, on the other hand, are exclusively responsible for
the accuracy and completeness of the information contained in this Offer to
Purchase and provided by them for inclusion herein. Each of Parent, Offeror and
the Company confirm that the information provided by it and, contained in this
Offer to Purchase is, to the best of its knowledge, true and accurate in any
material aspect and there are no other facts the
39
<PAGE> 47
omission of which would make any statement provided by it in this Offer to
Purchase misleading in any material aspect.
Dutch Merger Code Cross References. Set forth below is a listing of Dutch
Merger Code requirements for this Offer to Purchase and the location of the
required information in this Offer to Purchase.
<TABLE>
<S> <C> <C>
A. The name of the bidder: front page, section 1, p [1]
B. The proposal to acquire the shares in Q & A, page ii, Introduction, p [1]
accordance with the stated price or
exchange ratio:
C. A statement whether or not consultative Q & A, page iv, Introduction, page [1]
discussions with the target's managing
board were held and if agreement was
reached with the target's management:
D. A statement that the offer extends to all Q & A, page [ii], page [vi], Introduction,
shares in circulation of the types to which page [1]
the offer relates, except that the bidder
may exclude shares which had not been
issued at the time that the offer was made
or whose issue had not been publicly
announced or notified to the bidder:
E. A statement that the same offer is made to section 1, page [3]
all holders of the same type of shares:
F. Conditions attached to the offer, relating section 1, page [3]; section 14, page [34]
to any minimum number or percentage of
shares to be tendered:
G. Any further conditions attached to the section 14, page [34-36]
offer:
H. A clear statement of the reasons for the section 10, page [22], section 18, page
offer price or the exchange ratio and [38]
details about the nature of the bidder's
funding if the offer is for cash:
I. An arrangement for the transfer and payment page [vi], section 2, page [5-7]
of the shares tendered:
J. If the offer relates to more than one type not applicable
of share, a clear statement of the reasons
for any differences in the offer for the
various types:
K. The tender period: frontpage, section 1 page [3]
L. Where available to the bidder, clear section 8, pages [14-21]
information concerning the assets and
results of the target, including available
information relating to the then current
financial year if more than a quarter
thereof has passed:
M. A statement relating to the reasons for the section 12, pages [22-25]
offer, the bidder's plans for the target
following completion of the offer,
including plans to amend the target's
articles, and intended business policies:
N. A statement about the proposed composition section 12, pages [25-26]
of the target's managing board and
supervisory board following the acceptance
of the offer:
</TABLE>
40
<PAGE> 48
<TABLE>
<S> <C> <C>
O. The aggregate amount of compensation to be section 18, page 38
paid to the supervisory directors, who will
resign if the offer is accepted:
P. Details of any cross-participations of the section 12, pages 32-34, section 18, page
target and the bidder, whether direct or 38
indirect, at the date of publication of the
Offer Memorandum:
Q. Information as to whether any shares section 18, page 38
included in the offer have been committed
and if so, the aggregate par value of such
shares:
R. Specific details of any acquisitions of not applicable
shares in the target (or contracts for the
same) by the bidder from managing or
supervisory directors of the target or from
their family-members or from legal entities
directly or indirectly controlled by them
over the last three years:
S. Specific details of any acquisitions (or section 12, pages 30, 32-34
contracts to acquire as set out in (p)
above from other parties):
T. Specific details of any acquisition (or section 12, pages 32-34
contracts to acquire) as set out in (p) and
(q) by any group company of the bidder:
U. Any other information required by the section 18, page 38
Amsterdam Exchanges:
V. A statement relating to compliance with the section 18, page 38
obligation to give notice to the Dutch
Merger Committee of any share dealings by
directors:
W. A statement by the Dutch Merger Committee section 18, page 38
as to the observance of the rules set forth
in the chapters II and III of the
Fusiegedragsregels:
</TABLE>
Invensys Holdings Limited
June 14, 2000
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<PAGE> 49
SCHEDULE I
CERTAIN INFORMATION CONCERNING THE
DIRECTORS AND OFFICERS OF PARENT AND OFFEROR
The names and ages of the directors and executive officers of Parent and
Offeror, and their present principal occupations, are set forth below. Unless
otherwise indicated, each individual is a citizen of the United Kingdom and his
or her business address is Carlisle Place, London SW1P 1BX United Kingdom.
PARENT
NAME AND AGE; PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
PARENT; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
Lord Marshall of Knightsbridge
(66).......................... Chairman since June 1998 and Deputy Chairman
from January 1998 until June 1998. Chairman of
British Airways plc since 1993. Chairman of
Inchcape plc since 1996. Deputy Chairman of
British Telecommunications plc since 1995.
Non-Executive Director of HSBC Holdings plc.
President of the Confederation of British
Industry from May 1996 until July 1998. Member
of the Board of the New York Stock Exchange
from June 1994 to May 2000.
Allen M. Yurko (48)(*)........ Member of Board of Directors since 1991, Chief
Executive since February 1999, Managing
Director and Chief Executive Officer from
January 1994 until February 1999, and Managing
Director and Chief Operating Officer from
October 1992 until January 1994. Member of the
Board of Directors of Tate & Lyle plc since
April 1996.
Kathleen A. O'Donovan (43).... Member of Board of Directors and Chief
Financial Officer since February 1999. Member
of Board of Directors of BTR plc since July
1991 and Finance Director of BTR plc from July
1991 until February 1999. Partner at Ernst &
Young from 1989 until June 1991. Member of
Board of Directors of EMI Group plc since
November 1997 and the Bank of England since
August 1999.
Robert Bauman (69)(*)......... Member of Board of Directors since February
1999. Member of Board of Directors of BTR since
August 1997 and Chairman of BTR from May 1998
until February 1999. Chief Executive of
SmithKline Beecham plc from July 1989 until
April 1994. Chairman of British Aerospace plc
from May 1994 until April 1998. Member of Board
of Directors of Reuters Limited from 1994 to
1998 and Reuters Group plc from 1997 to April
2000.
Sir Philip Beck (65).......... Member of Board of Directors since 1991,
Chairman from March 1998 until June 1998 and
Deputy Chairman from June 1998 until February
1999. Deputy Chairman of Railtrack plc from May
1999 until July 1999 and Chairman since July
1999. Member of Board of Directors of Delta plc
since August 1994. Member of Board of Directors
of Kitagawa Europe Limited since June 1990.
Rolf Borjesson (57)(**)....... Member of Board of Directors since July 1998.
Chief Executive and Managing Director of Rexam
plc since July 1996. Member of Board of
Directors of Midway Holding AB since May 1995.
Member of Board of Directors of Svenska
Handelsbanken AB
S-1
<PAGE> 50
since August 1995. Chief Executive of PLM AB
from March 1988 until June 1996.
Hugh Collum (59).............. Member of Board of Directors since October
1998. Executive Vice President and Chief
Financial Officer of SmithKline Beecham plc
from 1989 until 1998. Member of Board of
Directors of Whitehead Mann Group plc since
1997, Safeway plc since 1997, and South African
Breweries plc since 1999. Non-Executive
Chairman of Chiroscience Group plc since 1998.
Member of Board of Directors of British Nuclear
Fuels plc in July 1999 and Chairman since
October 1999. Member of the Board of Directors
of Celltech Group plc since August 1999.
Sir Graham Hearne (62)........ Member of Board of Directors since February
1999. Member of Board of Directors of BTR plc
since June 1998. Chairman of Enterprise Oil
since 1991. Member of Board of Directors of
N.M. Rothschild & Sons Limited since 1977,
Rothschilds Continuation Limited since 1997,
Gallagher Group plc since 1987 and Sea Scope
Shipping Holdings since October 1999.
Simon Robertson (59).......... Member of Board of Directors since February
1999. Member of Board of Directors of BTR plc
since March 1997. Managing Director of Goldman
Sachs International since September 1997.
Chairman of Kleinwort Benson Group plc
("Kleinwort") from 1996 until 1997 and Deputy
Chairman of Kleinwort from 1992 until 1996.
Member of Board of Directors of Inchcape plc
since May 1996, Berry Bros. & Rudd since June
1998 and The London Stock Exchange Limited
since July 1998.
James F. Mueller (53)(*)...... Chief Operating Officer since February 1999 and
member of Board of Directors from March 2000
and from April 1996 until February 1999.
President and Chief Operating Officer of Siebe
Temperature and Compliance Control from 1993
until February 1999.
James C. Bays (50)(*)......... Senior Vice President since February 1999,
General Counsel and Chief Legal Officer since
March 1996 and Vice President from March 1996
until February 1999. Vice President, Law and
Assistant General Counsel of GenCorp. Inc. from
April 1993 until March 1996.
Barry C. Francis (55)......... Senior Vice President and Director of Corporate
Communications since February 1999. Group
Public Relations Director from 1993 until
February 1999.
John B. Saunders (57)......... Senior Vice President and Director of Corporate
Strategy and Development since February 1999.
Director, Corporate Strategy and Development
from January 1994 until February 1999. Senior
Vice President and Director Corporate Strategy
at SmithKline Beecham plc from 1988 until 1994.
Bruce Henderson (51).......... Division Chief Executive, Intelligent
Automation since September 1999. Divisional
chief executive, Invensys Controls division
February 1999 to September 1999. President of
Invensys appliance controls business July 1995
to February 1999. Vice President, General
Manager of Electronic Convenience Systems of
TRW Inc., 1994 to July 1995.
S-2
<PAGE> 51
Roderick H. Powell (52)....... Division Chief Executive, Controls division
since January 2000. President of Invensys
Metering Systems from January 1998 to December
1999. President of the Fujitsu-ICL Retails
Systems Division and Chief Executive of
Fujitsu-ICL Inc from 1994 to 1998.
Richard Armbrust (48)......... Division Chief Executive, Industrial Drive
Systems since January 2000. President,
Intelligent Building Systems from May 1996 to
December 1999. President of ABB's Robotics and
Flexible Automation Division from 1991 to 1996.
Thomas Gutierrez (51)......... Division Chief Executive, Power Systems
division from February 1999. President of Exide
Electronics January 1998 to February 1999.
Chief executive of Exide Electronics from
January 1995 to January 1998.
John R. W. Clayton (49)....... Company Secretary and Group Senior Counsel from
November 1999. Company Secretary and Director
of Legal and Secretariat, Guardian Royal
Exchange plc from May 1992 to October 1999.
OFFEROR
DIRECTORS AND EXECUTIVE OFFICERS
James C. Bays (50)*........... Member of the board of directors since February
2000. (Other biographical details set forth
above under Invensys plc)
R P A Coles (57).............. Member of the board of directors since April
1994. Secretary of the company from 1991 to
February 2000. Director of Legal Affairs, Group
Senior Counsel of Invensys plc since February
1998 and Director of Legal Affairs and Company
Secretary of Invensys plc.
JD Thom (53).................. Member of the board of directors since February
2000. Group Tax and Treasury Strategist,
Invensys plc from February 1999 and with BTR
plc from September 1998 to February 1999. Group
Treasurer BTR plc from 1977 to September 1998.
Allen M. Yurko (48)*.......... Member of the board of directors since April
1994. (Other biographical details set forth
above under Invensys plc)
Invensys Secretaries
Limited....................... Appointed corporate secretary of Offeror from
February 2000.
---------------
* Citizen of the United States of America, with business address at Carlisle
Place, London SW1P 1BX United Kingdom.
** Citizen of Sweden, with business address at Carlisle Place, London SW1P 1BX
United Kingdom.
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<PAGE> 52
ANNEX I
INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AEX Rules................................................... vi
Agent's Message............................................. 7
Alternative Proposal........................................ 29
Amsterdam Exchanges......................................... vi
Articles.................................................... 24
Assignment Agreement........................................ 34
Baan........................................................ 1
Baan Purchase Agreement..................................... 33
Book-Entry Confirmation..................................... 5
Book-Entry Transfer Facility................................ 5
business day................................................ 4
Closing Date................................................ vi
Company..................................................... 1
Company Form 20-F........................................... 12
Continuing Members.......................................... 26
Custodian................................................... vi
D&O Insurance............................................... 32
DCC......................................................... vi
Depositaries................................................ vi
Dutch Depositary............................................ vi
Dutch GAAP.................................................. 15
Dutch Law................................................... vi
Dutch Merger Code........................................... vi
Dutch Merger Committee...................................... 4
Dutch Shares................................................ vi
Eligible Institution........................................ 7
Enterprise Division......................................... 23
Exchange Act................................................ 2
Expiration Date............................................. 3
Federal Reserve Board....................................... 14
Fletcher.................................................... 33
Fletcher Agreement.......................................... 33
Fletcher Expiration Date.................................... 33
FTC......................................................... 36
GAP Purchase Agreement...................................... 33
GAP Sellers................................................. 33
Goldman Sachs............................................... 22
Governmental Entity......................................... 26
GSI......................................................... 2
</TABLE>
I-1
<PAGE> 53
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Indemnified Parties......................................... 32
Information Agent........................................... vi
ISS......................................................... 24
Laws........................................................ 26
Lazard Freres............................................... 1
Letter of Transmittal....................................... vi
Litigation.................................................. 27
Minimum Condition........................................... 1
Minority Shareholders....................................... 23
Nasdaq/NMS.................................................. 8
NECIGEF..................................................... vi
Netherlands Holder.......................................... 11
NLG......................................................... 20
Non-Netherlands Holder...................................... 11
Notice of Guaranteed Delivery............................... vi
Offer....................................................... 1
Offer Agreement............................................. 1
Offer Price................................................. 1
Offeror..................................................... 1
Oikonomos Purchase Agreement................................ 33
Parent...................................................... 1
Participating Member States................................. 20
PFIC........................................................ 11
Representatives............................................. 29
Schedule 14D-9.............................................. 1
Schedule TO................................................. 22
SEC......................................................... 1
Securities Act.............................................. 14
Share Purchase Agreements................................... 32
Share Rights Agreement...................................... 33
Shares...................................................... 1
Statutory Buy Out Procedure................................. 23
Subsequent Offering Period.................................. 3
Termination Fee............................................. 31
TIN......................................................... 9
Transaction................................................. 34
U.S. Depositary............................................. vi
U.S. GAAP................................................... 15
U.S. Holder................................................. 12
U.S. Internal Revenue Code.................................. 12
U.S. Registered Shares...................................... vi
Vanenburg Purchase Agreement................................ 33
</TABLE>
I-2
<PAGE> 54
ANNEX II
PRICE RANGE OF SHARES
The following table sets forth, for the periods indicated, the high and low
closing bid prices per Share on the Nasdaq/NMS and the Amsterdam Exchanges for
the applicable periods.
<TABLE>
<CAPTION>
AMSTERDAM NASDAQ/NMS
EXCHANGES U.S.$ PER SHARE
EUROS PER SHARE ---------------
MONTH HIGH LOW HIGH LOW
----- ----- ----- ---- --------
<S> <C> <C> <C> <C>
1999
June........................................... 16.15 13.25 17 5/8 13 13/16
July........................................... 15.30 12.45 15 7/8 13 3/16
August......................................... 13.00 10.85 14 12 1/4
September...................................... 15.05 11.65 15 5/8 12 1/2
October........................................ 13.80 11.13 14 5/8 11 3/4
November....................................... 13.51 11.73 13 14/16 12 2/8
December....................................... 14.63 13.18 14 7/8 13 1/8
2000
January........................................ 14.78 6.96 14 13/16 6 13/16
February....................................... 7.50 5.06 7 7/16 5 5/16
March.......................................... 6.45 4.20 5 7/8 4 1/8
April.......................................... 5.64 3.57 5 1/4 3 3/8
May............................................ 3.45 1.26 4 3/16 1 3/16
June (through June 12, 2000)................... 2.85 2.83 2 11/16 2 1/2
</TABLE>
The following table sets forth, for the dates indicated, intraday high and
low prices per Share on the Nasdaq/NMS and the Amsterdam Exchanges for the
applicable dates.
<TABLE>
<CAPTION>
AMSTERDAM
EXCHANGES NASDAQ/NMS
---------------- -----------------
EUROS PER SHARE U.S.$ PER SHARE
---------------- -----------------
DATE LOW HIGH LOW HIGH
---- ----- ----- --- --------
<S> <C> <C> <C> <C>
12-May-00.......................................... 2.25 2.50 2 1/16 2 3/16
15-May-00.......................................... 2.05 2.38 1 7/8 2 1/16
16-May-00.......................................... 1.91 2.18 1 3/4 1 15/16
17-May-00.......................................... 1.83 2.10 1 3/4 1 15/16
18-May-00.......................................... 1.75 2.06 1 5/8 1 7/8
19-May-00.......................................... 1.32 1.88 1 2/8 1 1/2
22-May-00.......................................... 1.16 1.40 1 1/8 1 3/8
23-May-00.......................................... 1.15 1.36 1 2/16 1 1/4
24-May-00.......................................... 1.25 1.61 1 5/16 1 7/8
25-May-00.......................................... 1.80 3.06 2 1/4 3 3/4
26-May-00.......................................... 2.40 3.49 2 7/16 2 13/16
29-May-00.......................................... 2.35 2.86 --(2) --(2)
30-May-00.......................................... 2.51 2.72 2 7/16 4 1/4
31-May-00.......................................... 2.91 3.35 2 5/8 2 3/4
1-Jun-00.......................................... --(1) --(1) 2 7/16 2 11/16
2-Jun-00.......................................... 2.65 2.85 2 1/2 2 5/8
</TABLE>
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<PAGE> 55
<TABLE>
<CAPTION>
AMSTERDAM
EXCHANGES NASDAQ/NMS
---------------- -----------------
EUROS PER SHARE U.S.$ PER SHARE
---------------- -----------------
DATE LOW HIGH LOW HIGH
---- ----- ----- --- --------
<S> <C> <C> <C> <C>
5-Jun-00.......................................... 2.71 2.85 2 1/2 2 5/8
6-Jun-00.......................................... 2.79 2.85 2 4/8 2 5/8
7-Jun-00.......................................... 2.80 2.84 2 10/16 2 11/16
8-Jun-00.......................................... 2.79 2.85 2 5/8 2 12/16
9-Jun-00.......................................... 2.81 2.88 2 1/2 2 11/16
12-Jun-00.......................................... --(1) --(1) 2 9/16 2 5/8
</TABLE>
---------------
(1) Bank holiday.
(2) Trading suspended.
II-2
<PAGE> 56
ANNEX III
ENGLISH TRANSLATION OF DUTCH LANGUAGE SUMMARY
PROVIDED TO SHAREHOLDERS IN THE NETHERLANDS
This annex contains an English translation of a Dutch language summary of
the Offer, which summary, together with a Dutch translation of the "Questions
and Answers" section of the Offer to Purchase of which this annex is a part, is
being made available to shareholders in The Netherlands.
III-1
<PAGE> 57
THIS SUMMARY IS PROVIDED MERELY FOR THE CONVENIENCE OF SHAREHOLDERS AND
SHALL NOT BE DEEMED TO CREATE ANY OBLIGATION ON THE PART OF INVENSYS PLC,
INVENSYS HOLDINGS LIMITED OR THEIR SUBSIDIARIES OR THEIR REPRESENTATIVES OR
AGENTS. IN THE EVENT OF ANY INCONSISTENCY OR CONFLICT BETWEEN THIS SUMMARY AND
THE DEFINITIVE OFFER TO PURCHASE, THE TERMS AND PROVISIONS OF THE DEFINITIVE
OFFER TO PURCHASE SHALL GOVERN.
THE DESCRIPTION BELOW IS ONLY A SUMMARY OF THE OFFER TO PURCHASE, AND MAY
NOT CONTAIN ALL INFORMATION IMPORTANT TO SHAREHOLDERS. SHAREHOLDERS ARE URGED TO
READ THE DEFINITIVE OFFER TO PURCHASE IN ITS ENTIRETY.
SUMMARY
INTRODUCTION
The Boards of Invensys plc (together with its subsidiaries, "Invensys") and
Baan Company N.V. (together with its subsidiaries, "Baan" or the "Company")
announced on May 31, 2000 the terms of a recommended cash offer by Invensys (the
"Offer") to acquire the entire issued share capital of Baan. The Offer provides
for a price of E2.85 in cash (the "Offer Price") for each Baan share, valuing
the entire existing issued share capital of Baan at approximately E762 million
(L474 million). The Supervisory and Management Boards of Baan, who have been
advised by Lazard Freres & Co. LLC, unanimously recommend all Baan shareholders
to accept the Offer.
The Netherlands Committee on Merger Affairs ("Dutch Merger Committee"),
trade unions involved with Baan and Baan's Works Councils have been informed of
the proposed transaction, which is subject to the Works Councils' positive
advice. On June 14, 2000, the Central Works Council announced that the Company
had received the positive advice of the Central Works Council on the Offer.
All members of the Supervisory and Management Boards of Baan intend to
tender their shares on the first day the Offer commences. In addition, Invensys
has purchased at the Offer Price from Vanenburg Group (controlled by Jan and
Paul Baan) and certain of their affiliates, Fletcher International Limited and
General Atlantic Partners, their entire holdings in Baan Shares (as defined
below), representing approximately 5.8%, 3.0% and 1.9%, respectively, of Baan's
entire existing issued share capital. Following the announcement on May 31,
2000, and through June 12, 2000, Invensys purchased through its agent Goldman
Sachs International 17,619,007 Baan Shares in transactions outside of the United
States. As a result, as of the close of business on June 12, 2000, Invensys had
already purchased and owns approximately 17.3% of Baan's entire existing issued
share capital.
THE OFFER
The Offer has been made by Invensys on the terms and subject to the
conditions summarized herein, including:
<TABLE>
<S> <C>
Offer Price.................................. E2.85 per common share of Baan ("Shares"),
net to the seller in cash, without interest.
Applicable Shares............................ Offer extends equally to all Shares.
Expiration Date.............................. July 13, 2000, 3:00 p.m. Amsterdam time,
unless extended.
Minimum Condition............................ The Offer is conditioned on, among other
things, there being validly tendered and not
withdrawn prior to the Expiration Date that
number of Shares which would, when added to
the Shares previously acquired by Invensys,
represent at least 95% of the outstanding
Shares. See "Conditions" below.
</TABLE>
Tender of Shares. Holders of Shares held in bearer form ("Dutch Shares")
will by customary practice be contacted by a broker, bank or custodian
("Custodian") through which such Shares are held. Any holder of Dutch Shares
wishing to tender their Shares must instruct the Custodian to that effect in
accordance with
III-2
<PAGE> 58
the Custodian's procedures, as set forth in the announcement published on June
14, 2000 in the Dutch Financial Times and the official price list of the
Amsterdam Exchanges.
Holders of Shares held in certificates and registered in the shareholder
registry in New York City ("U.S. Registered Shares") should refer to Section 3
of the Offer to Purchase.
Questions and requests for assistance may be directed to D.F. King & Co.,
Inc. (the "Information Agent"), at the address and telephone numbers set forth
on the back cover of the Offer to Purchase. Holders of Dutch Shares in The
Netherlands may also contact the custodian, bank or broker through which they
hold their shares. Holders of Dutch Shares may obtain additional copies of the
Offer to Purchase from ABN AMRO Bank N.V. or from the Custodian through which
such holder's Shares are held. Holders of U.S. Registered Shares may obtain
additional copies of the Offer to Purchase, the letter of transmittal provided
with the Offer to Purchase (the "Letter of Transmittal"), a notice of guaranteed
delivery and other related materials from the Information Agent or from brokers,
dealers, commercial banks and trust companies.
Brokerage Fees; Transfer Taxes. Tendering shareholders will not be
required to pay brokerage fees or commissions or, except in the case of holders
of U.S. Registered Shares, as set forth in Instruction 6 to the Letter of
Transmittal, transfer taxes on the sale of Shares pursuant to the Offer.
Extension or Amendment of Offer. The Offer may not be amended except in
accordance with its terms and as permitted by Dutch or United States law. Under
Dutch law, any change in the terms of the Offer could require the termination of
the existing Offer and a commencement of a new offer. With respect to immaterial
changes, or in cases where the Offer Price is increased, The Dutch Merger
Committee could grant an exemption from the requirement to commence a new offer.
Amendment of Price. If prior to the Expiration Date, Invensys increases
the Offer Price to be paid per Share pursuant to the Offer, the increased price
will be paid for all Shares purchased pursuant to the Offer, whether or not such
Shares were tendered prior to such increase in the Offer Price.
Payment. On or prior to the completion of the Offer, Invensys will deposit
with the Depositaries (as defined below) cash in an amount equal to the product
of the Offer Price and the number of tendered Shares. Promptly after the
completion of the Offer, ABN AMRO Bank N.V. (in its role as receiving agent or
exchange agent the "Dutch Depositary") or Morgan Guaranty Trust Company of New
York (the "U.S. Depositary" and, together with the Dutch Depositary, the
"Depositaries") shall distribute to each holder of tendered Shares pursuant to
the Offer, an amount equal to the product of the Offer Price and the number of
Shares tendered by such shareholder by making a payment to the relevant
Custodians for the benefit of their respective clients.
Currency Election. Although the Offer Price is stated in euros, the U.S.
Depositary will make payments for U.S. Registered Shares tendered and accepted
pursuant to the Offer in U.S. dollars based on the U.S. dollar/euro exchange
rate prevailing when funds are made available to the U.S. Depositary, unless
holders of U.S. Registered Shares elect to receive all such payments in euros.
Withdrawal Rights. Tenders of Shares made pursuant to the Offer may be
withdrawn at any time on or prior to the Expiration Date and, unless theretofore
accepted for payment by Invensys pursuant to the Offer, may also be withdrawn at
any time after August 13, 2000.
For a withdrawal of a tender of Dutch Shares to be effective, a holder of
Dutch Shares must notify such holder's Custodian in accordance with the
procedures of the Custodian. With respect to a tender of Dutch Shares withdrawn
prior to the Expiration Date, each Custodian shall exclude such Shares from the
notice to the Dutch Depositary of the number of such Dutch Shares tendered by
its clients.
For a withdrawal of a tender of U.S. Registered Shares to be effective, a
written, telegraphic or facsimile transmission notice of withdrawal must be
timely received by the U.S. Depositary at the address set forth on the back
cover of the Offer to Purchase. Any notice of withdrawal must specify the name
of the person who tendered the Shares for which the tender is to be withdrawn,
the number of Shares for which the tender is to
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<PAGE> 59
be withdrawn and the name of the registered holder of the Shares to be
withdrawn, if different from the name of the person who tendered the Shares.
Delisting of Shares. Invensys intends to cause the Company to seek
delisting of the Shares from the Amsterdam Exchanges and the Nasdaq/NMS and to
cause the Company to apply for termination of registration of the Shares under
the U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
soon after the completion of the Offer as the requirements for such delisting
and termination are met.
Purpose; Post-Offer Intentions. The purpose of the Offer is to enable
Invensys to acquire control of, and the entire equity interest in, Baan. At such
time as Invensys acquires at least 95% of the outstanding issued Shares,
Invensys intends to pursue a statutory buy out procedure of any remaining
minority shares pursuant to Dutch Law (the "Statutory Buy Out Procedure").
In addition to the Statutory Buy Out Procedure, Invensys currently intends,
after completion of the Offer, to cause the effectuation by Baan and one or more
Dutch subsidiaries of Invensys of a legal merger within the meaning of Section
2:309 of the Dutch Civil Code, provided that the merger consideration if not
payable in cash at the same price per share as is payable pursuant to the Offer
shall provide equivalent value to such cash amount.
Invensys. Invensys is a global leader in the automation and controls
industry created by the merger of BTR plc and Siebe plc in February 1999.
Invensys operates in over 40 countries and employs over 90,000 people. Invensys'
business is controls and automation based, with products ranging from advanced
control systems for automating industrial plants and controlling the
environments of buildings, to electronic devices found in many domestic and
commercial appliances. For the year ended March 31, 2000, Invensys had revenues
of approximately L9,034 million (U.S.$14,454 million) and operating profit
(before goodwill amortization and exceptional items) of L1,203 million
(U.S.$1,925 million). Invensys shareholders' equity at March 31, 2000 was
approximately L1,024 million (U.S.$1,638 million) with approximately L578
million (U.S.$925 million) of cash and cash equivalents. As of March 31, 2000,
the U.S. dollar/British pound exchange ratio was U.S. $1.60 to L1.00. Invensys
offices are located at Invensys House, Carlisle Place, London SW1P 1BX, England.
The offeror in the transaction is a wholly owned subsidiary of Invensys and a
private limited company organized under the laws of England and Wales.
Conditions. Invensys shall not be required to accept for payment or pay
for Shares and may terminate or amend the Offer if on or after the Expiration
Date any of the following conditions exist or occur and remain in effect:
(a) prior to the expiration of the Offer, there shall not have been
validly tendered (and not withdrawn) that number of Shares which would,
when added to the Shares previously acquired by Invensys, represent at
least 95% of the outstanding Shares;
(b) any waiting period under the U.S. Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or any applicable mandatory waiting
periods under any applicable non-U.S. laws shall not have expired or been
terminated;
(c) any governmental entity or person has instituted and has pending
certain litigation seeking to:
(i) challenge the acquisition by Invensys (or any of its
affiliates) of any Shares pursuant to the Offer or restrain, prohibit
the making or completion of the Offer;
(ii) impose limitations on the ability of Invensys (or any of its
affiliates) effectively to acquire or hold (or to require Invensys or
Baan or any of their respective affiliates or subsidiaries to dispose of
or hold separate) any material portion of their assets or the business
of any one of them; or
(iii) impose limitations on the ability of Invensys (or any of its
affiliates) to exercise full rights of ownership of any Shares purchased
by it;
provided that, if such litigation is by a person other than a governmental
entity, such litigation is reasonably likely to have a material adverse
effect;
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<PAGE> 60
(d) there has been promulgated, enacted, entered, enforced or deemed
applicable to the Offer, by any governmental entity, any law that would
reasonably be expected to result in any of the consequences referred to in
clause (c) above;
(e) the Offer Agreement dated May 31, 2000 between Invensys on behalf
of itself and two subsidiaries (then intended to be formed) and Baan has
been terminated in accordance with its terms;
(f) (i) any of the representations and warranties made by Baan in the
Offer Agreement was not true and correct in all respects when made, or
thereafter has ceased to be true and correct in all respects as if made at
the scheduled or extended expiration of the Offer (except to the extent
that any such representation or warranty refers specifically to another
date, in which case such representation or warranty shall be true and
correct in all respects as of such other date), except to the extent that
any such failure to be true and correct, individually and in the aggregate
with all such other failures, would not have a material adverse effect, or
(ii) Baan has materially breached or failed to comply in any material
respect with any of its material obligations under the Offer Agreement,
except to the extent that any such breach or failure to comply,
individually or in the aggregate with all such other breaches or failures,
would not have a material adverse effect;
(g) any corporation, entity, "group" or "person" (each as defined in
the U.S. Securities Exchange Act of 1934, as amended) other than Invensys
has acquired beneficial ownership of a majority of the outstanding Shares;
(h) Baan's Supervisory or Management Board has modified or amended its
recommendation of the Offer in any manner adverse to Invensys, withdrawn
its recommendation of the Offer, approved or recommended acceptance of any
alternative proposal by a third party or resolved to do any of the
foregoing;
(i) since March 31, 2000 and save for any change or event previously
disclosed to Invensys in writing, any change or event has occurred which,
individually or in aggregate, has had or is reasonably likely to have a
material adverse effect;
(j) Invensys or Baan have not received clearance from the European
Union Merger Task Force; or
(k) the Works Councils of Baan have (i) given a negative advice with
respect to the recommendation of the Supervisory Board or Management Board
of Baan in connection with the Offer and (ii) initiated legal proceedings
in the relevant Dutch courts to prevent the completion of the Offer.
The conditions described above may be waived by Invensys, in whole or in
part, at any time and from time to time, in its reasonable discretion.
Should the Offer be terminated pursuant to any provision above, all
tendered Shares not accepted for payment at the time of such termination shall
promptly be returned by the depositary to the tendering Baan shareholders.
Invensys has agreed that if any Offer conditions are not satisfied or
waived on any scheduled Expiration Date, Invensys will extend the Offer on one
or more occasions, if such Offer condition or Offer conditions could reasonably
be expected to be satisfied within thirty days following the scheduled or
extended Expiration Date of the Offer. In the event of an extension of the
Offer, Invensys will issue a press release announcing the new expiration date.
Dutch Merger Code Matters. The Dutch Merger Committee, trade unions
involved with Baan and the Amsterdam Exchanges have been informed of the Offer.
In addition, Invensys has received confirmation from the Dutch Merger Committee
that the Offer is in compliance with the Dutch Merger Code.
The Offer Price was determined as part of the overall negotiations between
Invensys and Baan regarding the Offer, taking into account the other terms of
the transaction. In particular, determination of the Offer Price was based on
the trading price of Baan's stock shortly before execution of the Offer
Agreement and the recent financial results of Baan.
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<PAGE> 61
Facsimile copies of the Letter of Transmittal will be accepted. The Letter
of Transmittal and certificates for Shares and any other required documents
should be sent or delivered by each shareholder of the Company or his broker,
dealer, commercial bank, trust company or other nominee to the appropriate
Depositary at one of the addresses set forth below:
The U.S. Depositary for the Offer is:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
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By Mail: By Hand: By Overnight Mail or Courier:
c/o Securities Transfer & Reporting
c/o EquiServe Corporate Services, Inc. (STARS) c/o Colbent Management
Reorganization 100 William Street, Galleria Corporate Reorganization
P.O. Box 842007 New York, New York 10038 40 Campanelli Drive
Boston, MA 02284-2007 Facsimile Copy Number: Braintree, MA 02184
(781) 575-4826
For Confirmation Telephone:
(781) 575-4816
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The Dutch Depositary for the Offer is:
ABN AMRO BANK N.V.
Dept. Issuing Institutions/Corporate Actions
MF 2020
KemelsteDe 2
4817 ST Breda
Amsterdam, The Netherlands
Facsimile Copy Number:
076-5799620
(For Eligible Institutions Only)
For Confirmation Telephone:
076-5799482
For Information Telephone:
076-5799482
Any questions or requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent at its telephone number and location listed
below. Shareholders may also contact their broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
In the U.S. and Canada Call Toll Free: (800) 848-3409
All Others Call Collect: (212) 269-5550
