<PAGE>
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
TRICO PRODUCTS CORPORATION
(NAME OF SUBJECT COMPANY)
------------------------
STANT EXPANSION CORPORATION
STANT CORPORATION
(BIDDERS)
------------------------
COMMON STOCK, NO PAR VALUE
(TITLE OF CLASS OF SECURITIES)
------------------------
896114105
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
ANTHONY W. GRAZIANO, JR., ESQ.
STANT EXPANSION CORPORATION
C/O STANT CORPORATION
425 COMMERCE DRIVE
RICHMOND, INDIANA 47374
(317) 962-6655
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
------------------------
COPIES TO:
TIMOTHY G. MASSAD, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
------------------------
NOVEMBER 8, 1994
(DATE OF EVENT WHICH REQUIRES FILING STATEMENT ON SCHEDULE 13D)
------------------------
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
<S> <C>
$176,494,765 $35,298.96
</TABLE>
* For purposes of calculating amount of filing fee only. The amount assumes the
purchase of 2,076,409 shares of Common Stock, no par value, at a price per
Share of $85.00 in cash. Such number of Shares represents all the Shares
outstanding as of November 8, 1994, plus the number of Shares issuable upon
the exercise of all existing options.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
<TABLE>
<S> <C>
Amount Previously Paid: None Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
</TABLE>
PAGE 1 OF PAGES
EXHIBIT INDEX ON PAGE
________________________________________________________________________________
<PAGE>
<TABLE>
<S> <C> <C>
CUSIP No. 896114105 14D-1 and 13D Page 2 of Pages
</TABLE>
<TABLE>
<S> <C>
1 NAME OF REPORTING PERSONS:
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stant Expansion Corporation (35-1936445)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCES OF FUNDS
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
614,296
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES [ ]
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
Approximately 33% of the Shares Outstanding as of
November 8, 1994.*
10 TYPE OF REPORTING PERSON
CO
</TABLE>
* See footnote on following page.
<PAGE>
<TABLE>
<S> <C> <C>
CUSIP No. 896114105 14D-1 and 13D Page 3 of Pages
</TABLE>
<TABLE>
<S> <C>
1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stant Corporation (35-1768429)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCES OF FUNDS
BK
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
614,296
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES [ ]
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
Approximately 33% of the Shares Outstanding as of
November 8, 1994.*
10 TYPE OF REPORTING PERSON
CO
</TABLE>
* On November 8, 1994, Stant Corporation ('Parent') and Stant Expansion
Corporation, a wholly owned subsidiary of Parent (the 'Purchaser'), entered
into a Stockholders Agreement (the 'Stockholders Agreement') with the John R.
Oishei Appreciation Charitable Trust, The Julia R. & Estelle L. Foundation
Inc. and Rupert Warren, individually and in his capacity as sole trustee of
several trusts established by John R. Oishei (collectively, the 'Principal
Stockholders'), pursuant to which the Principal Stockholders have agreed to
tender to Purchaser pursuant to the Offer (as defined herein) all the Shares
owned by them (representing an aggregate of 614,296 Shares, or approximately
33% of the Shares outstanding as of November 8, 1994). Pursuant to the
Stockholders Agreement, the Principal Stockholders have further irrevocably
granted to the Purchaser an option (the 'Option'), exercisable upon certain
events and subject to the conditions set forth in the Stockholders Agreement,
to purchase the Shares held by such Principal Stockholders at a price of
$85.00 per Share. The Purchaser's option to purchase the Shares subject to the
Stockholders Agreement and the Shares subject to the Option are reflected in
Rows 7 and 9 of each of the tables above. The Stockholders Agreement further
provides that each Principal Stockholder revokes any and all previous proxies
granted with respect to the Shares owned by such Principal Stockholder and
further provides that each Principal Stockholder consents to the Merger
Agreement (as defined herein) and the transactions contemplated thereby,
including the Merger (as defined herein). In addition, the Principal
Stockholders agree pursuant to the Stockholders Agreement (i) to vote all
Shares now or in the future owned by such Principal Stockholder in favor of
the Merger Agreement, the Merger and the transactions contemplated thereby and
(ii) to oppose any Acquisition Proposal (as defined herein) and to vote all
Shares now or in the future owned by such Principal Stockholder against any
Acquisition Proposal. The Stockholders Agreement is described more fully in
Section 12 ('Purpose of the Offer; the Merger Agreement and the Stockholders
Agreement') of the Offer to Purchase dated November 14, 1994 (the 'Offer to
Purchase').
<PAGE>
This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement
on Schedule 13D with respect to the acquisition by the Purchaser and Parent of
beneficial ownership of the Shares subject to the Stockholders Agreement. The
item numbers and responses thereto below are in accordance with the requirements
of Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY
(a) The name of the subject company is Trico Products Corporation, a New
York corporation (the 'Company'), which has its principal executive offices at
817 Washington Street, Buffalo, New York 14203.
(b) This Schedule 14D-1 relates to the offer by the Purchaser to purchase
all outstanding Shares at a price of $85.00 per Share, net to the seller in cash
(the 'Offer Price'), upon the terms and subject to the conditions set forth in
the Offer to Purchase and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, collectively constitute the
'Offer'), copies of which are attached hereto as Exhibits (a)(1) and (a)(2),
respectively. Information concerning the number of outstanding Shares is set
forth in 'Introduction' of the Offer to Purchase and is incorporated herein by
reference.
(c) Information concerning the principal market in which the Shares are
traded and the high and low sales prices of the Shares for each quarterly period
during the past two years is set forth in Section 6 ('Price Range of the Shares;
Dividends on the Shares') of the Offer to Purchase and is incorporated herein by
reference.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(d) and (g) This Schedule 14D-1 is being filed by the Purchaser, a New
York corporation, and Parent, a Delaware corporation. The Purchaser is a wholly
owned subsidiary of Parent. Information concerning the principal business and
the address of the principal offices of the Purchaser and Parent is set forth in
Section 9 ('Certain Information Concerning the Purchaser and Parent') of the
Offer to Purchase and is incorporated herein by reference. The names, business
addresses, present principal occupations or employment, material occupations,
positions, offices or employment during the last five years and citizenship of
the directors and executive officers of the Purchaser and Parent are set forth
in Schedule I to the Offer to Purchase and are incorporated herein by reference.
The names, business addresses, present principal occupations or employment,
material occupations, positions, offices or employment during the last five
years and citizenship of the controlling persons of Kylix Partners, L.P. and the
directors and executive officers of Quentin Corporation, Belisarius Corporation,
East Harbor Corporation and Bessemer Securities Corporation are set forth in
Schedule II to the Offer to Purchase and are incorporated herein by reference.
(e) and (f) The information set forth in Section 9 ('Certain Information
Concerning the Purchaser and Parent') and Section 15 ('Certain Legal Matters')
of the Offer to Purchase is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY
(a) None.
(b) The information set forth in Section 11 ('Contacts with the Company;
Background of the Offer') and Section 12 ('Purpose of the Offer; the Merger
Agreement and the Stockholders Agreement') of the Offer to Purchase is
incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a) and (b) The information set forth in Section 10 ('Source and Amount of
Funds') of the Offer to Purchase is incorporated herein by reference.
(c) Not applicable.
<PAGE>
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
(a)-(e) The information set forth in Section 12 ('Purpose of the Offer; the
Merger Agreement and the Stockholders Agreement') of the Offer to Purchase is
incorporated herein by reference.
(f) and (g) The information set forth in Section 7 ('Effect of the Offer on
the Market for the Shares, Stock Quotation and Exchange Act Registration') of
the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
(a) and (b) The information set forth in 'Introduction' and Section 12
('Purpose of the Offer; the Merger Agreement and the Stockholders Agreement') of
the Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES
The information set forth in 'Introduction' Section 11 ('Contacts with the
Company; Background of the Offer') and Section 12 ('Purpose of the Offer; the
Merger Agreement and the Stockholders Agreement') of the Offer to Purchase is
incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
The information set forth in the Introduction and in Section 16 ('Fees and
Expenses') of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS
The information set forth in Section 9 ('Certain Information Concerning the
Purchaser and Parent') of the Offer to Purchase is incorporated herein by
reference and Parent's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 and Parent's Quarterly Report on Form 10-Q for the nine months
ended September 30, 1994 are also incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION
(a) The information set forth in Section 12 ('Purpose of the Offer; the
Merger Agreement and the Stockholders Agreement') of the Offer to Purchase is
incorporated herein by reference.
(b) and (c) The information set forth in Section 15 ('Certain Legal
Matters') of the Offer to Purchase is incorporated herein by reference.
(d) Not applicable.
(e) None.
(f) The information set forth in the Offer to Purchase, the Letter of
Transmittal, the Agreement and Plan of Merger dated as of November 8, 1994,
among the Purchaser, Parent and the Company, the Stockholders Agreement dated as
of November 8, 1994, among Parent, the Purchaser and the stockholders of the
Company named therein, Parent's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, Parent's Report on Form 10-Q for the quarterly period
ended September 30, 1994, the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993, and the Company's Report on Form 10-Q for
the quarterly period ended September 30, 1994 is incorporated herein by
reference.
<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<S> <C>
(a)(1) Offer to Purchase.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
(a)(7) Form of Summary Advertisement dated November 14, 1994.
(a)(8) Press release dated November 8, 1994.
(a)(9) Press release dated November 14, 1994.
(b) Commitment letter dated October 20, 1994, between Chemical Bank and Parent, and amendments thereto dated
October 27, 1994 and November 10, 1994.
(c)(1) Agreement and Plan of Merger dated as of November 8, 1994, among the Purchaser, Parent and the Company.
(c)(2) Stockholders Agreement dated as of November 8, 1994, among Parent, the Purchaser, John R. Oishei
Appreciation Charitable Trust, The Julia R. and Estelle L. Foundation Inc. and Rupert Warren.
(c)(3) Confidentiality Agreement dated as of August 17, 1994, between Parent and the Company.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: November 14, 1994
STANT EXPANSION CORPORATION
By /s/ Anthony W. Graziano, Jr.
..................................
NAME: ANTHONY W. GRAZIANO, JR.
TITLE: VICE PRESIDENT,
AND SECRETARY
STANT CORPORATION
By /s/ Anthony W. Graziano, Jr.
..................................
NAME: ANTHONY W. GRAZIANO, JR.
TITLE: VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME PAGE NO.
- ------- ----------------------------------------------------------------------------------------------- --------
<C> <S> <C>
(a)(1) Offer to Purchase. ............................................................................
(a)(2) Letter of Transmittal. ........................................................................
(a)(3) Notice of Guaranteed Delivery. ................................................................
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees. ........................
(a)(5) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees. .....
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. ........
(a)(7) Form of Summary Advertisement dated November 14, 1994. ........................................
(a)(8) Press release dated November 8, 1994. .........................................................
(a)(9) Press release dated November 14, 1994. ........................................................
(b) Commitment letter dated October 20, 1994, between Chemical Bank and Parent, and amendments
thereto dated October 27, 1994 and November 10, 1994. .........................................
(c)(1) Agreement and Plan of Merger dated as of November 8, 1994, among the Purchaser, Parent and the
Company. ......................................................................................
(c)(2) Stockholders Agreement dated as of November 8, 1994, among Parent, the Purchaser, John R.
Oishei Appreciation Charitable Trust, The Julia R. and Estelle L. Foundation Inc. and Rupert
Warren. .......................................................................................
(c)(3) Confidentiality Agreement dated as of August 17, 1994, between Parent and the Company. ........
(d) None. .........................................................................................
(e) Not applicable. ...............................................................................
(f) None. .........................................................................................
</TABLE>
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TRICO PRODUCTS CORPORATION
AT
$85.00 NET PER SHARE
BY
STANT EXPANSION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
STANT CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, DECEMBER 12, 1994, UNLESS EXTENDED.
THE BOARD OF DIRECTORS OF TRICO PRODUCTS CORPORATION HAS, BY UNANIMOUS
VOTE, APPROVED THE OFFER AND THE MERGER REFERRED TO HEREIN AND DETERMINED THAT
THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF,
THE STOCKHOLDERS OF THE COMPANY AND RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER THEIR SHARES.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WLTHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES WHICH WOULD REPRESENT AT LEAST TWO-THIRDS OF ALL OUTSTANDING SHARES.
---------------------------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (1) complete and sign the Letter of Transmittal or a
facsimile copy thereof in accordance with the instructions in the Letter of
Transmittal, have such stockholder's signature thereon guaranteed if required by
Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal or such facsimile and any other required documents to the Depositary
and either deliver the certificates for such Shares to the Depositary along with
the Letter of Transmittal or facsimile or deliver such Shares pursuant to the
procedure for book-entry transfer set forth in Section 2 or (2) request such
stockholder's broker, dealer, bank, trust company or other nominee to effect the
transaction for such stockholder. A stockholder having Shares registered in the
name of a broker, dealer, bank, trust company or other nominee must contact such
broker, dealer, bank, trust company or other nominee if such stockholder desires
to tender such Shares.
A stockholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply in a timely manner
with the procedure for book-entry transfer, or who cannot deliver all required
documents to the Depositary prior to the expiration of the Offer, may tender
such Shares by following the procedure for guaranteed delivery set forth in
Section 2.
Questions and requests for assistance or for additional copies of this
Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed
Delivery may be directed to the Information Agent at its address and telephone
number set forth on the back cover of this Offer to Purchase.
---------------------------------
The Information Agent for the Offer is:
MACKENZIE PARTNERS
November 14, 1994
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Introduction.............................................................................................. 1
1. Terms of the Offer..................................................................................... 2
2. Procedure for Tendering Shares......................................................................... 4
3. Withdrawal Rights...................................................................................... 6
4. Acceptance for Payment and Payment..................................................................... 7
5. Certain Federal Income Tax Consequences................................................................ 8
6. Price Range of the Shares; Dividends on the Shares..................................................... 9
7. Effect of the Offer on the Market for the Shares, Stock Quotation and Exchange Act
Registration.......................................................................................... 9
8. Certain Information Concerning the Company............................................................. 10
9. Certain Information Concerning the Purchaser and Parent................................................ 12
10. Source and Amount of Funds............................................................................. 15
11. Contacts with the Company; Background of the Offer..................................................... 16
12. Purpose of the Offer; the Merger Agreement and the Stockholders Agreement.............................. 18
13. Dividends and Distributions............................................................................ 26
14. Certain Conditions of the Offer........................................................................ 27
15. Certain Legal Matters.................................................................................. 28
16. Fees and Expenses...................................................................................... 30
17. Miscellaneous.......................................................................................... 30
Schedule I Directors and Executive Officers of Parent and the Purchaser.................................... 31
Schedule II Controlling Persons of Kylix and Directors and Executive Officers of Such Controlling Persons;
Directors and Executive Officers of BSC.................................................................. 33
</TABLE>
<PAGE>
To the Holders of Common Stock
of Trico Products Corporation:
INTRODUCTION
Stant Expansion Corporation, a New York corporation (the 'Purchaser') and a
wholly owned subsidiary of Stant Corporation, a Delaware corporation ('Parent'),
hereby offers to purchase all outstanding shares (the 'Shares') of Common Stock
(the 'Common Stock'), no par value, of Trico Products Corporation, a New York
corporation (the 'Company'), at $85.00 per Share (the 'Offer Price'), net to the
seller in cash, upon the terms and subject to the conditions set forth in this
Offer to Purchase and in the related Letter of Transmittal (which, together with
any amendments or supplements hereto or thereto, collectively constitute the
'Offer').
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The
Purchaser will pay all fees and expenses of Harris Trust Company of New York,
which is acting as the Depositary (the 'Depositary'), and MacKenzie Partners,
Inc., which is acting as Information Agent (the 'Information Agent'), incurred
in connection with the Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS, BY UNANIMOUS VOTE, APPROVED THE
OFFER AND THE MERGER (AS DEFINED BELOW) AND DETERMINED THAT THE TERMS OF THE
OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS
OF THE COMPANY AND RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER
AND TENDER THEIR SHARES.
GOLDMAN, SACHS & CO., THE COMPANY'S FINANCIAL ADVISOR ('GOLDMAN SACHS'),
HAS DELIVERED TO THE BOARD OF DIRECTORS OF THE COMPANY ITS WRITTEN OPINION THAT,
BASED UPON CERTAIN CONSIDERATIONS AND ASSUMPTIONS AS OF NOVEMBER 8, 1994, THE
$85.00 PER SHARE IN CASH TO BE RECEIVED BY THE HOLDERS OF SHARES IN THE OFFER
AND THE MERGER WAS FAIR TO SUCH HOLDERS. SUCH OPINION IS SET FORTH IN FULL AS AN
EXHIBIT TO THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9
(THE 'SCHEDULE 14D-9'), WHICH IS BEING MAILED TO STOCKHOLDERS OF THE COMPANY.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN SECTION
1) THAT NUMBER OF SHARES (THE 'MINIMUM NUMBER OF SHARES') WHICH WOULD REPRESENT
AT LEAST TWO-THIRDS OF ALL OUTSTANDING SHARES (THE 'MINIMUM CONDITION'). THE
PURCHASER RESERVES THE RIGHT (SUBJECT TO OBTAINING THE CONSENT OF THE COMPANY
AND THE APPLICABLE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION (THE 'COMMISSION')), WHICH IT PRESENTLY HAS NO INTENTION OF
EXERCISING, TO WAIVE OR REDUCE THE MINIMUM CONDITION AND TO ELECT TO PURCHASE,
PURSUANT TO THE OFFER, LESS THAN THE MINIMUM NUMBER OF SHARES. SEE SECTIONS 1
AND 14. IF THE PURCHASER PURCHASES THE MINIMUM NUMBER OF SHARES IN THE OFFER, IT
WILL BE ABLE TO EFFECT THE MERGER WITHOUT THE AFFIRMATIVE VOTE OF ANY OTHER
STOCKHOLDER OF THE COMPANY. SEE SECTION 12.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of November 8, 1994 (the 'Merger Agreement'), among Parent, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, with the Company surviving the merger (as such, the
'Surviving Corporation') as a wholly owned subsidiary of Parent (the 'Merger').
In the Merger, each outstanding Share (other than Shares held by the Company as
treasury stock or owned by any subsidiary of the Company, Parent, the Purchaser
or any other subsidiary of Parent or by stockholders, if any, who are entitled
to and who properly exercise dissenters' rights under New York law) will be
converted into the right to receive the per Share price paid in the Offer in
cash, without interest (the 'Merger Consideration'). See Section 12.
The Merger is subject to a number of conditions, including approval by
stockholders of the Company, if such approval is required by applicable law. In
the event the Purchaser acquires 90% or more of the outstanding Shares pursuant
to the Offer or otherwise, the Purchaser would be able to effect the Merger
pursuant to the short-form merger provisions of the New York Business
Corporation Law (the 'NYBCL'), without prior notice to, or any action by, any
other stockholder of the Company. Under the Merger Agreement, if the Purchaser
has accepted Shares for payment pursuant to the Offer and owns at least
two-thirds of the outstanding number of Shares, the Purchaser may exercise an
option
1
<PAGE>
granted under the Merger Agreement to purchase at the Offer Price that number of
Shares held in treasury by the Company that would result in Parent owning 90% of
the then outstanding Shares, provided that such number of Shares shall not
exceed all Shares held by the Company in its treasury. See Section 12.
In connection with the execution of the Merger Agreement, the Purchaser and
Parent entered into a Stockholders Agreement dated as of November 8, 1994 (the
'Stockholders Agreement'), with the John R. Oishei Appreciation Charitable
Trust, The Julia R. & Estelle L. Foundation Inc. and Rupert Warren, individually
and in his capacity as sole trustee of several trusts established by John R.
Oishei (collectively, the 'Principal Stockholders'), pursuant to which the
Principal Stockholders have agreed to tender to the Purchaser pursuant to the
Offer all the Shares owned by them, representing an aggregate of 614,296 Shares
or approximately 33% of the Shares outstanding as of November 8, 1994. Pursuant
to the Stockholders Agreement, the Principal Stockholders also have irrevocably
granted to the Purchaser an option (the 'Stockholders Option'), exercisable upon
certain events and subject to the conditions set forth in the Stockholders
Agreement, to purchase the Shares held by the Principal Stockholders at a price
of $85.00 per Share. The Stockholders Agreement is described more fully under
Section 12 ('Purpose of the Offer; the Merger Agreement and the Stockholders
Agreement').
The Company has represented to the Purchaser that, as of November 8, 1994,
there were 1,878,629 Shares issued and outstanding and 197,780 Shares reserved
for issuance upon the exercise of outstanding employee stock options. Based upon
the foregoing, the Purchaser believes that approximately 1,252,420 Shares
constitutes two-thirds of the outstanding Shares (and approximately 1,384,273
Shares would constitute two-thirds of the outstanding Shares if all employee
stock options were exercised). Accordingly, the Minimum Condition will be
satisfied if, in addition to the Shares owned by the Principal Stockholders, at
least 638,124 Shares, or approximately 51% of those Shares issued and
outstanding at November 8, 1994 and not owned by the Principal Stockholders, are
validly tendered and not withdrawn prior to the Expiration Date (as defined in
Section 1). If all employee stock options were exercised prior to the Expiration
Date, approximately 769,977 Shares not owned by the Principal Stockholders would
have to be validly tendered and not withdrawn for the Minimum Condition to be
satisfied. If the Minimum Condition is satisfied and the Purchaser accepts for
payment Shares tendered pursuant to the Offer, the Purchaser will be able to
elect a majority of the members of the Company's Board of Directors and to
effect the Merger without the affirmative vote of any other stockholder of the
Company.
The Merger Agreement and the Stockholders Agreement are more fully
described in Section 12. Certain Federal income tax consequences of the sale of
Shares pursuant to the Offer and the exchange of Shares for the Merger
Consideration pursuant to the Merger are described in Section 5.
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term 'Expiration Date' means 12:00 Midnight, New York City time, on Monday,
December 12, 1994, unless and until the Purchaser 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
the Purchaser, shall expire.
Subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Commission, the Purchaser expressly reserves the right, in
its sole discretion, at any time and from time to time, and regardless of
whether or not any of the events set forth in Section 14 hereof shall have
occurred or shall have been determined by the Purchaser to have occurred, to (a)
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 Depositary and (b) amend the Offer in
any other respect by giving oral or written notice of such amendment to the
Depositary. THE PURCHASER SHALL NOT HAVE ANY OBLIGATION TO PAY INTEREST ON THE
PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS
RIGHT TO EXTEND THE OFFER.
2
<PAGE>
If by 12:00 Midnight, New York City time, on Monday, December 12, 1994 (or
any other date or time then set as the Expiration Date), any or all conditions
to the Offer have not been satisfied or waived, the Purchaser reserves the right
(but shall not be obligated), subject to the terms and conditions contained in
the Merger Agreement and to the applicable rules and regulations of the
Commission, to (1) terminate the Offer and not accept for payment any Shares and
return all tendered Shares to tendering stockholders, (2) waive all the
unsatisfied conditions and, subject to complying with the terms of the Merger
Agreement and the applicable rules and regulations of the Commission, accept for
payment and pay for all Shares validly tendered prior to the Expiration Date and
not theretofore withdrawn, (3) extend the Offer and, subject to the right of
stockholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended or (4) amend the Offer.
There can be no assurance that the Purchaser will exercise its right to
extend the Offer (other than as required by the Merger Agreement). Any
extension, waiver, amendment or termination will be followed as promptly as
practicable by public announcement. In the case of an extension, Rule 14e-1(d)
under the Securities Exchange Act of 1934, as amended (the 'Exchange Act'),
requires that the announcement be issued 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 14d-4(c) under the
Exchange Act. Subject to applicable law (including Rules 14d-4(c) and 14d-6(d)
under the Exchange Act, which require that any material change in the
information published, sent or given to stockholders in connection with the
Offer be promptly disseminated to stockholders in a manner reasonably designed
to inform stockholders of such change), and without limiting the manner in which
the Purchaser may choose to make any public announcement, the Purchaser will not
have any obligation to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow Jones News
Service.
In the Merger Agreement the Purchaser has agreed that it will not, without
the prior consent of the Company, extend the Offer, except that the Purchaser
may extend the Offer, without the consent of the Company, (1) if at the
Expiration Date any of the conditions to the Purchaser's obligation to accept
Shares for payment are not satisfied or waived, until such time as such
conditions are satisfied or waived, (2) for any period required by any rule,
regulation, interpretation or position of the Commission or the staff thereof
and (3) for an aggregate period of not more than 15 business days beyond the
latest expiration date that would otherwise be permitted under the terms of the
Merger Agreement as described in clause (1) or (2) of this sentence. As used in
this Offer to Purchase, 'business day' has the meaning set forth in Rule 14d-1
under the Exchange Act.
In addition, the Purchaser has agreed in the Merger Agreement that it will
not, without the consent of the Company, (1) reduce the number of Shares subject
to the Offer, (2) reduce the Offer Price, (3) modify or add to the conditions
set forth in Section 14 of this Offer to Purchase in any manner adverse to the
Company's stockholders, (4) change the form of consideration payable in the
Offer or (5) otherwise amend the Offer in any manner adverse to the Company's
stockholders.
If the Purchaser extends the Offer or if the Purchaser (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 the Purchaser's rights under
the Offer, the Depositary may retain tendered Shares on behalf of the Purchaser,
and such Shares may not be withdrawn except to the extent tendering stockholders
are entitled to withdrawal rights as described in Section 3. However, the
ability of the Purchaser to delay the payment for Shares that the Purchaser has
accepted for payment is limited by Rule 14e-1 under the Exchange Act, which
requires that a bidder pay the consideration offered or return the securities
deposited by or on behalf of holders of securities promptly after the
termination or withdrawal of such bidder's offer.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including, with the Company's consent, a waiver of the Minimum Condition), the
Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in the percentage of
3
<PAGE>
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 a change in the percentage of securities sought,
a minimum period of 10 business days is generally required to allow for adequate
dissemination to stockholders.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition, the expiration or termination of all waiting periods imposed by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
regulations thereunder (the 'HSR Act') and the other conditions set forth in
Section 14. Subject to the terms and conditions contained in the Merger
Agreement, the Purchaser reserves the right (but shall not be obligated) to
waive any or all such conditions. However, if the Purchaser (with the Company's
consent) waives or amends the Minimum Condition during the last five business
days during which the Offer is open, the Purchaser will be required to extend
the Expiration Date so that the Offer will remain open for at least five
business days after the announcement of such waiver or amendment is first
published, sent or given to holders of Shares.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of the Shares. This Offer to Purchase, the related Letter of Transmittal
and other relevant materials will be mailed by the Purchaser to record holders
of Shares and will be furnished by the Purchaser to brokers, dealers, banks,
trust companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder lists or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
2. PROCEDURE FOR TENDERING SHARES
Valid Tender. For a stockholder validly to tender Shares pursuant to the
Offer, either (1) a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), together with any required signature guarantees and any
other documents required by the Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase and either certificates for tendered Shares must be received by the
Depositary at one of such addresses or such Shares must be delivered pursuant to
the procedure for book-entry transfer set forth below (and a Book-Entry
Confirmation (as defined below) must be received by the Depositary), in each
case prior to the Expiration Date, or (2) the tendering stockholder must comply
with the guaranteed delivery procedure set forth below.
The Depositary will establish an account with respect to the Shares at The
Depository Trust Company, the Midwest Securities Trust Company and the
Philadelphia Depository Trust Company (the 'Book-Entry Transfer Facilities') 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 any of the
Book-Entry Transfer Facilities' systems may make book-entry delivery of Shares
by causing a Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees and
any other required documents, must, in any case, be transmitted to, and received
by, the Depositary at one of its addresses set forth on the back cover of this
Offer to Purchase prior to the Expiration Date, or the tendering stockholder
must comply with the guaranteed delivery procedure described below. The
confirmation of a book-entry transfer of Shares into the Depositary's account at
a Book-Entry Transfer Facility as described above is referred to herein as a
'Book-Entry Confirmation'. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER
FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL
4
<PAGE>
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if (1) the Letter of Transmittal is signed by the registered holder
of Shares (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) tendered therewith and
such registered holder has not completed either the box entitled 'Special
Delivery Instructions' or the box entitled 'Special Payment Instructions' on the
Letter of Transmittal or (2) such Shares are tendered for the account of a firm
that is a participant in the Security Transfer Agent's Medallion Program or the
New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program (each, an 'Eligible Institution'). In all other
cases, all signatures on the Letters of Transmittal must be guaranteed by an
Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal. If
the certificates for 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
certificates for Shares not tendered or not accepted for payment are to be
issued to a person other than the registered holder of the certificates
surrendered, the tendered certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name or names of
the registered holders or owners appear on the certificates, with the signatures
on the certificates or stock powers guaranteed as aforesaid. See Instruction 5
to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
(1) such tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by the Purchaser is received by
the Depositary, as provided below, prior to the Expiration Date; and
(3) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to such Shares),
together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees and any
other documents required by the Letter of Transmittal, are received by the
Depositary within five trading days after the date of execution of such
Notice of Guaranteed Delivery. A 'trading day' is any day on which The
Nasdaq National Market is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
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 Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (1) certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares, (2) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and (3) any other documents required by the Letter of
Transmittal. Accordingly, tendering stockholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations are
actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE
PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering stockholder and
the Purchaser upon the terms and subject to the conditions of the Offer,
including the tendering stockholder's representation and warranty that the
tender of such Shares will have complied with Rule 14e-4 under the Exchange Act.
Appointment. By executing a Letter of Transmittal as set forth above, the
tendering stockholder will irrevocably appoint designees of the Purchaser as
such stockholder's attorneys-in-fact and proxies in
5
<PAGE>
the manner set forth in the Letter of Transmittal, each with full power of
substitution, to the full extent of such stockholder's rights with respect to
the Shares tendered by such stockholder and accepted for payment by the
Purchaser and with respect to any and all other Shares or other securities or
rights issued or issuable in respect of such Shares on or after November 8,
1994. All such proxies shall be considered coupled with an interest in the
tendered Shares. Such appointment will be effective when, and only to the extent
that, the Purchaser accepts for payment Shares tendered by such stockholder as
provided herein. Upon such acceptance for payment, all prior powers of attorney
and proxies given by such stockholder with respect to such Shares or other
securities or rights will, without further action, be revoked and no subsequent
powers of attorney and proxies may be given (and, if given, will not be deemed
effective). The designees of the Purchaser will thereby be empowered to exercise
all voting and other rights with respect to such Shares or other securities or
rights in respect of any annual, special or adjourned meeting of the Company's
stockholders, or otherwise, as they in their sole discretion deem proper. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, immediately upon the Purchaser's acceptance for payment of
such Shares, the Purchaser must be able to exercise full voting and other rights
with respect to such Shares and other securities or rights, including voting at
any meeting of stockholders then scheduled.
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 the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for which may, in the opinion of the Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right to waive
any defect or irregularity in any tender with respect to any particular Shares,
whether or not similar defects or irregularities are waived in the case of other
Shares. No tender of Shares will be deemed to have been validly made until all
defects or irregularities relating thereto have been cured or waived. None of
the Purchaser, Parent, the Depositary, 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. The
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the instructions thereto) will be final and
binding.
Backup Withholding. In order to avoid 'backup withholding'of Federal income
tax on payments of cash pursuant to the Offer, a stockholder surrendering Shares
in the Offer must provide the Depositary with such stockholder's correct
taxpayer identification number ('TIN') on a Substitute Form W-9 and certify
under penalties of perjury that such TIN is correct and that such stockholder is
not subject to backup withholding. Certain stockholders (including, among
others, all corporations and certain foreign individuals and entities) are not
subject to backup withholding. If a stockholder does not provide its correct TIN
or fails to provide the certifications described above, the Internal Revenue
Service ('IRS') may impose a penalty on such stockholder and payment of cash to
such stockholder pursuant to the Offer may be subject to backup withholding at a
rate of 31%. All stockholders surrendering Shares pursuant to the Offer should
complete and sign the main signature form and the Substitute Form W-9 included
as part of the Letter of Transmittal to provide the information and
certification necessary to avoid backup withholding (unless an applicable
exemption exists and is proved in a manner satisfactory to the Purchaser and the
Depositary). Noncorporate foreign stockholders 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 Depositary, in order to avoid backup withholding. See
Instruction 9 to the Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after January 12, 1995.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover
6
<PAGE>
of this Offer to Purchase and must specify the name of the person having
tendered the Shares to be withdrawn, the number of Shares 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 Depositary, then, prior to
the physical release of such certificates, the serial numbers shown on such
certificates must be submitted to the 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
delivered pursuant to the procedure for book-entry transfer as set forth in
Section 2, any notice of withdrawal must also specify the name and number of the
account at the appropriate Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's
procedures. Withdrawals of tenders of Shares may not be rescinded, and any
Shares properly withdrawn will thereafter be deemed not validly tendered for any
purposes of the Offer. However, withdrawn Shares may be retendered by again
following one of the procedures described in Section 2 at any time prior to the
Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser in its sole
discretion, which determination will be final and binding. None of the
Purchaser, Parent, the Depositary, the Information Agent or any other person
will be under any duty to give notification of any defects or irregularities in
any notice of withdrawal or incur any liability for failure to give any such
notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn in
accordance with Section 3 promptly after the Expiration Date. Any determination
concerning the satisfaction of such terms and conditions will be within the sole
discretion of the Purchaser, and such determination will be final and binding on
all tendering stockholders. See Sections 1 and 14. The Purchaser expressly
reserves the right, in its sole discretion, to delay acceptance for payment of
or payment for Shares in order to comply in whole or in part with any applicable
law, including, without limitation, the HSR Act. Any such delays will be
effected in compliance with Rule 14e-1(c) under the Exchange Act (relating to
the Purchaser's obligation to pay for or return tendered Shares promptly after
the termination or withdrawal of the Offer).
Parent expects to file a Notification and Report Form with respect to the
Offer under the HSR Act on November 15, 1994. The waiting period under the HSR
Act with respect to the Offer will expire at 11:59 p.m., New York City time, on
the 15th day after the date such form is filed unless early termination of the
waiting period is granted. In addition, the Antitrust Division of the Department
of Justice (the 'Antitrust Division') or the Federal Trade Commission (the
'FTC') may extend the waiting period by requesting additional information or
documentary material from Parent. If such a request is made, such waiting period
will expire at 11:59 p.m., New York City time, on the 10th day after substantial
compliance by Parent with such request. See Section 15 hereof for additional
information concerning the HSR Act and the applicability of the antitrust laws
to the Offer.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (1) certificates for
such Shares (or timely Book-Entry Confirmation of a transfer of such Shares as
described in Section 2), (2) a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
and (3) any other documents required by the Letter of Transmittal. The per Share
consideration paid to any stockholder pursuant to the Offer will be the highest
per Share consideration paid to any other stockholder pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Payment
for Shares accepted for payment pursuant to the Offer will be made by deposit of
the purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of
7
<PAGE>
receiving payment from the Purchaser and transmitting payment to tendering
stockholders. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE
OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
If the Purchaser 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 the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act,
which requires that a tender offeror pay the consideration offered or return the
tendered securities promptly after the termination or withdrawal of a tender
offer), the Depositary may, nevertheless, on behalf of the Purchaser, retain
tendered Shares, and such Shares may not be withdrawn except to the extent
tendering stockholders are entitled to exercise, and duly exercise, withdrawal
rights as described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer because of
an invalid tender or otherwise, certificates for any such Shares will be
returned, without expense to the tendering stockholder (or, in the case of
Shares delivered by book-entry transfer of such Shares into the Depositary's
account at a Book-Entry Transfer Facility pursuant to the procedure set forth in
Section 2, such Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility), as promptly as practicable after the
expiration or termination of the Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to Parent, or to one or more direct or indirect wholly
owned subsidiaries of Parent, the right to purchase Shares tendered pursuant to
the Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Sales of Shares pursuant to the Offer (and the receipt of the right to
receive cash by stockholders of the Company pursuant to the Merger) will be
taxable transactions for Federal income tax purposes under the Internal Revenue
Code of 1986, as amended (the 'Code'), and may also be taxable transactions
under applicable state, local, foreign and other tax laws. For Federal income
tax purposes, a tendering stockholder will generally recognize gain or loss
equal to the difference between the amount of cash received by the stockholder
pursuant to the Offer (or to be received pursuant to the Merger) and the
aggregate tax basis in the Shares tendered by the stockholder and purchased
pursuant to the Offer (or exchanged pursuant to the Merger). Gain or loss will
be calculated separately for each block of Shares tendered and purchased
pursuant to the Offer (or exchanged pursuant to the Merger).
If tendered Shares are held by a tendering stockholder as capital assets,
gain or loss recognized by the tendering stockholder will be capital gain or
loss, which will be long-term capital gain or loss if the tendering
stockholder's holding period for the Shares exceeds one year. Under present law,
long-term capital gains recognized by a tendering individual stockholder will
generally be taxed at a maximum Federal marginal tax rate of 28%, and long-term
capital gains recognized by a tendering corporate stockholder will be taxed at a
maximum Federal marginal tax rate of 35%.
A stockholder (other than certain exempt stockholders including, among
others, all corporations and certain foreign individuals) that tenders Shares
may be subject to 31% backup withholding unless the stockholder provides its TIN
and certifies that such number is correct or properly certifies that it is
awaiting a TIN. A stockholder that does not furnish its TIN may be subject to a
penalty imposed by the IRS. Each stockholder should complete and sign the
Substitute Form W-9 included as part of the Letter of Transmittal so as to
provide the information and certification necessary to avoid backup withholding.
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the Federal income tax liability of the person subject to the backup
withholding, provided that the required information is given to the IRS. If
backup withholding results in an overpayment of tax, a refund can be obtained by
the stockholder upon filing an income tax return.
8
<PAGE>
THE FOREGOING DISCUSSION MAY NOT BE APPLICABLE WITH RESPECT TO SHARES
RECEIVED PURSUANT TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS
COMPENSATION OR WITH RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX
TREATMENT UNDER THE CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES,
TAX-EXEMPT ORGANIZATIONS AND FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A
HOLDER OF SHARES IN LIGHT OF ITS INDIVIDUAL CIRCUMSTANCES. STOCKHOLDERS ARE
URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX
CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL
OR FOREIGN INCOME AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
The Shares are traded in the over-the-counter market and prices are quoted
on The Nasdaq National Market under the symbol 'TRCO'. The following table sets
forth, for each of the periods indicated, the high and low last reported sales
prices per Share as reported by The Nasdaq National Market and the Dow Jones
News Retrieval Service, as well as the amount of dividends paid per Share, based
upon public sources. All dividends were paid in cash.
<TABLE>
<CAPTION>
SALES PRICE
---------------------
HIGH LOW DIVIDENDS
------------ --- ---------
<S> <C> <C> <C>
1992
First Quarter...................................................... 28 18 $0.25
Second Quarter..................................................... 26 19 $0.25
Third Quarter...................................................... 26 18 $0.25
Fourth Quarter..................................................... 22 15 1/2 *
1993
First Quarter...................................................... 26 1/2 16 *
Second Quarter..................................................... 27 23 *
Third Quarter...................................................... 32 24 *
Fourth Quarter..................................................... 33 24 1/2 *
1994
First Quarter...................................................... 27 16 *
Second Quarter..................................................... 32 15 *
Third Quarter...................................................... 56 26 *
Fourth Quarter (through November 11, 1994)......................... 82 1/2 42 *
</TABLE>
- ------------
* According to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 (the 'Form 10-K'), the Board of Directors suspended
payment of the regular quarterly dividend in December 1992.
------------------------
On November 7, 1994, the last full day of trading before the public
announcement of the execution of the Merger Agreement, the reported closing sale
price of the Shares on The Nasdaq National Market was $61 per Share. On November
11, 1994, the last full day of trading before the commencement of the Offer, the
reported closing sale price of the Shares on The Nasdaq National Market was
$82 1/2 per Share. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS
FOR THE SHARES.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES, STOCK QUOTATION AND
EXCHANGE ACT REGISTRATION
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 held by the public.
Depending upon the number of Shares purchased pursuant to the Offer, the
Shares may no longer meet the requirements of the National Association of
Securities Dealers, Inc. (the 'NASD') for continued inclusion in The Nasdaq
National Market (the top tier market of The Nasdaq Stock Market), which require,
among other things, that an issuer have at least 200,000 publicly held shares,
held by at
9
<PAGE>
least 400 shareholders or 300 shareholders of round lots, with a market value of
$1,000,000, and have net tangible assets of at least either $1,000,000,
$2,000,000 or $4,000,000, depending on profitability levels during the issuer's
four most recent fiscal years. If these standards are not met, the Shares might
nevertheless continue to be included in The Nasdaq Stock Market with quotations
published in the Nasdaq 'additional list' or in one of the 'local lists', but if
the number of holders of the Shares were to fall below 300, or if the number of
publicly held Shares were to fall below 100,000 or there were not at least two
registered and active market makers for the Shares, the NASD's rules provide
that the Shares would no longer be 'qualified' for Nasdaq reporting and Nasdaq
would cease to provide any quotations. Shares held directly or indirectly by
directors, officers or beneficial owners of more than 10% of the Shares are not
considered as being publicly held for this purpose. According to the Company, as
of November 8, 1994, there were approximately 1,856 holders of record of Shares
and 1,878,629 Shares were outstanding. If, as a result of the purchase of Shares
pursuant to the Offer, the Shares no longer meet the requirements of the NASD
for continued inclusion in The Nasdaq Stock Market or The Nasdaq National
Market, as the case may be, the market for Shares could be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD
for quotation through Nasdaq and the Shares are no longer included in The Nasdaq
Stock Market, it is possible that the Shares would continue to trade in the
over-the-counter market and that price quotations would be reported by other
sources. The extent of the public market for the Shares and the availability of
such quotations would, however, depend upon the number of holders of Shares
remaining at such time, the interests in maintaining a market in Shares on the
part of securities firms, the possible termination of registration of the Shares
under the Exchange Act, as described below, and other factors.
The Shares are currently registered under the Exchange Act. Registration of
the Shares under the Exchange Act may be terminated upon application of the
Company to the Commission if the 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 stockholders and to
the Commission and would make certain provisions of the Exchange Act no longer
applicable to the Company, such as the short-swing profit recovery provisions of
Section 16(b) of the Exchange Act, the requirement of furnishing a proxy
statement pursuant to Section 14(a) of the Exchange Act in connection with
stockholders' meetings and the related requirement of furnishing an annual
report to stockholders and 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 promulgated under the
Securities Act of 1933, as amended, may be impaired or eliminated. The Purchaser
intends to seek 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 termination are met.
If registration of the Shares is not terminated prior to the Merger, then
the Shares will cease to be reported on The Nasdaq Stock Market and the
registration of the Shares under the Exchange Act will be terminated following
the consummation of the Merger.
The Shares are currently 'margin securities' under the regulations of the
Board of Governors of the Federal Reserve System (the 'Federal Reserve Board'),
which has the effect, among other things, of allowing brokers to extend credit
on the collateral of the Shares. Depending upon factors similar to those
described above regarding listing and market quotations, it is possible that,
following the Offer, the Shares would no longer constitute 'margin securities'
for the purposes of the margin regulations of the Federal Reserve Board and
therefore could no longer be used as collateral for loans made by brokers. If
registration of Shares under the Exchange Act were terminated, the Shares would
no longer be 'margin securities' or be eligible for Nasdaq reporting.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a New York corporation with its principal executive offices
at 817 Washington Street, Buffalo, New York 14203. According to the Form 10-K,
the Company's principal line of business
10
<PAGE>
is the manufacture and sale of automotive wiper systems and parts for use both
as original equipment and as replacement parts.
Set forth below is certain selected consolidated financial information with
respect to the Company and its subsidiaries excerpted or derived from the
information contained in the Form 10-K, as well as the Company's Report on
Form 10-Q for the quarterly period ended September 30, 1994, which are
incorporated by reference herein. More comprehensive financial information is
included in such reports and other documents filed by the Company with the
Commission, 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 notes) contained therein. Such reports and other
documents should be available for inspection and copies thereof should be
obtainable in the manner set forth below under 'Available Information'.
TRICO PRODUCTS CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------------- --------------------------------
1994 1993 1993 1992 1991
-------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales................................ $270,557 $229,721 $311,855 $265,423 $228,690
Operating income (loss).................. 12,334 (4,162) (4,924) (760) (14,084)
Net income (loss)........................ 6,481 (8,127) 3,257 2,421 (14,583)
Net income (loss) per share.............. $ 3.46 $ (4.38) $ 1.75 $ 1.31 $ (7.89)
</TABLE>
<TABLE>
<CAPTION>
AT SEPTEMBER 30, AT DECEMBER 31,
---------------- --------------------
1994 1993 1992
---------------- -------- --------
(UNAUDITED)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Total current assets....................................... $101,870 $107,427 $100,282
Total assets............................................... 173,490 177,872 177,839
Total current liabilities.................................. 59,389 62,272 55,426
Long-term debt............................................. 30,791 39,714 49,814
Total shareholders' equity................................. $ 76,991 $ 69,452 $ 69,235
</TABLE>
Certain Company Projections. During the course of discussions between
Parent and the Company that led to the execution of the Merger Agreement (see
Section 11), the Company provided Parent with certain non-public business and
financial information about the Company. This information included forecasts for
(i) fiscal year 1994 of net sales of approximately $351 million, operating
income of approximately $19.3 million and earnings before interest, taxes,
depreciation and amortization ('EBITDA') of approximately $33.8 million, (ii)
fiscal year 1995 of net sales of approximately $361.7 million, operating income
of approximately $26.6 million and EBITDA of approximately $41.2 million, (iii)
fiscal year 1996 of net sales of approximately $393.4 million, operating income
of approximately $43.0 million and EBITDA of approximately $57.8 million and
(iv) fiscal year 1997 of net sales of approximately $407.9 million, operating
income of approximately $44.9 million and EBITDA of approximately $60 million.
The Company does not as a matter of course make public any projections as
to future performance or earnings, and the projections set forth above are
included in this Offer to Purchase only because the information was provided to
Parent. The projections were not prepared with a view to public disclosure or
compliance with the published guidelines of the Commission or the guidelines
established by the American Institute of Certified Public Accountants regarding
projections or forecasts. The Company's internal operating projections (upon
which the projections provided to Parent were based in part) are, in general,
prepared solely for internal use and capital budgeting and other management
decisions and are subjective in many respects and thus susceptible to various
interpretations and periodic revision based on actual experience and business
developments. The projections were based on a number of
11
<PAGE>
assumptions (not all of which were stated in the projections and not all of
which were provided to Parent) that are beyond the control of the Company, the
Purchaser or Parent or their respective financial advisors. Many of the
assumptions upon which the projections were based are dependent upon economic
forecasting (both general and specific to the Company's business), which is
inherently uncertain and subjective. None of the Company, the Purchaser or
Parent or their respective financial advisors assumes any responsibility for the
accuracy of any of the projections. The inclusion of the foregoing projections
should not be regarded as an indication that the Company, the Purchaser, Parent
or any other person who received such information considers it an accurate
prediction of future events.
Available Information. The Company is subject to the reporting requirements
of the Exchange Act and, in accordance therewith, is required to file reports
and other information with the Commission relating to its business, financial
condition and other matters. Information as of particular dates concerning the
Company's directors and officers, their remuneration, stock options and other
matters, the principal holders of the Company's securities and any material
interest of such persons in transactions with the Company is required to be
disclosed in proxy statements distributed to the Company's stockholders and
filed with the Commission. Such reports, proxy statements and other information
should be available for inspection at the public reference facilities of the
Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
regional offices of the Commission 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 Commission's customary charges, by writing to the
Commission's principal office at 450 Fifth Street, N.W., Washington, D.C. 20549.
Such information should also be on file at The Nasdaq National Market, 1735 K
Street, N.W., Washington, D.C. 20006.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although the Purchaser and Parent do not have any
knowledge that any such information is untrue, neither the Purchaser nor Parent
takes any responsibility for the accuracy or completeness of such information or
for any failure by the Company to disclose events that may have occurred and may
affect the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT
The Purchaser, a New York corporation and a wholly owned subsidiary of
Parent, was organized to acquire the Company and has not conducted any unrelated
activities since its organization. The principal offices of the Purchaser are
located at 425 Commerce Drive, Richmond, Indiana 47374. All outstanding shares
of capital stock of the Purchaser are owned by Parent.
Parent's principal line of business is the design, manufacture and
distribution of a broad range of automotive parts and tools for the original
equipment, aftermarket and industrial markets. Parent is a Delaware corporation
with its principal office located at 425 Commerce Drive, Richmond, Indiana
47374. Approximately 57% of the common stock of Parent is owned by Bessemer
Capital Partners, L.P., a Delaware limited partnership ('BCP'), which has its
principal office at 630 Fifth Avenue, New York, New York 10111. BCP's only
activity is making private structured investments, which activity is principally
conducted at its 630 Fifth Avenue offices. The sole general partner of BCP is
Kylix Partners, L.P., a Delaware limited partnership ('Kylix'), which has its
principal office at 630 Fifth Avenue, New York, New York 10111. Kylix's only
activity is acting as the general partner of BCP, which activity is principally
conducted at its 630 Fifth Avenue offices. The general partners of Kylix are
Quentin Corporation, a Delaware corporation ('Quentin') (Quentin is the managing
general partner of Kylix), Belisarius Corporation, a Delaware corporation
('Belisarius'), and East Harbor Corporation, a Delaware corporation ('East
Harbor'), each of which has its principal office at 630 Fifth Avenue, New York,
New York 10111. Quentin, Belisarius and East Harbor are wholly owned by,
respectively, Mr. Ward W. Woods, Mr. Robert D. Lindsay and Mr. Michael B.
Rothfeld. Mr. Woods is the President and Chief Executive Officer of BSC (as
defined below) and is a director of Parent. Mr. Lindsay is also a director of
Parent.
12
<PAGE>
The primary limited partner of BCP is Bessemer Securities Corporation, a
Delaware corporation ('BSC'), which has its principal office at 630 Fifth
Avenue, New York, New York 10111. BSC, as a limited partner of BCP, owns an
investment interest in BCP. BSC's principal activity is making investments,
which activity is principally conducted at its 630 Fifth Avenue offices.
Approximately 93% of the common stock of BSC is owned by trusts for the benefit
of heirs of Henry Phipps, including Ogden Mills Phipps, a member of the Board of
Directors of Parent.
The name, address and principal occupation or employment of Mr. Woods, Mr.
Lindsay, Mr. Rothfeld, the executive officers and directors of Quentin,
Belisarius and East Harbor and the executive officers and directors of BSC are
set forth in Schedule II, which Schedule is incorporated herein by reference.
Except as otherwise indicated, each such person is a United States citizen.
Set forth below is certain selected unaudited consolidated financial
information with respect to Parent and its subsidiaries excerpted or derived
from the information contained in Parent's Report on Form 10-Q for the
quarterly period ended September 30, 1994, which is incorporated by reference
herein. Pro forma financial data set forth below give effect to the initial
public offering of the common stock of Parent (which occurred in July 1993), the
redemption of preferred stock and the retirement of certain indebtedness of
Parent, as if such events occurred at the beginning of the relevant period, and
excludes non-recurring charges. Audited consolidated financial information with
respect to Parent and its subsidiaries for the fiscal years ended December 31,
1991, December 31, 1992, and December 31, 1993, is contained in Parent's Annual
Report on Form 10-K for the fiscal year ended December 31, 1993, which is
incorporated by reference herein. The following summary is qualified in its
entirety by reference to such reports and other documents filed by Parent with
the Commission and all the financial information (including any related notes)
contained therein. Such reports and other documents should be available for
inspection and copies thereof should be obtainable in the manner set forth below
under 'Available Information'.
13
<PAGE>
STANT CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30
----------------------------------
ACTUAL PRO FORMA*
-------------------- ----------
1994 1993 1993
-------- -------- ----------
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales................................................................. $203,697 $187,185 $187,185
Income from operations.................................................... 24,864 18,785 21,688
Income before income taxes, extraordinary (loss) and cumulative effect of
accounting changes..................................................... 22,729 13,480 19,561
Income before extraordinary (loss) and cumulative effect of accounting
changes................................................................ 13,118 7,217 10,866
Net income (loss)......................................................... 12,700** (3,210)** 3,761**
Net income (loss) applicable to common stock.............................. 12,700 (4,486) 3,761
</TABLE>
- ------------
* See immediately preceding paragraph.
** The 1994 net income includes a change in accounting method of $418 (net of
tax benefit of $279) related to Statement of Financial Accounting Standard
(SFAS) No. 112, 'Employers' Accounting for Post Employment Benefits'. The
1993 net income (loss) (both pro forma and actual) includes changes in
accounting methods of $7,105 (net of tax benefit of $1,003) related to SFAS
No. 106, 'Employers' Accounting for Post Retirement Benefits Other Than
Pensions' and SFAS No. 109, 'Accounting for Income Taxes'. The 1993 actual
net loss includes an extraordinary loss of $3,322 related to the early
extinguishment of debt.
<TABLE>
<CAPTION>
AT SEPTEMBER 30, 1994
---------------------
<S> <C>
BALANCE SHEET DATA:
Total current assets....................................... $ 126,818
Total assets............................................... 284,956
Total current liabilities.................................. 38,389
Long-term debt............................................. 59,064
Total stockholders' equity................................. $ 163,784
</TABLE>
Except as described in this Offer to Purchase, neither the Purchaser nor
Parent or, to the best knowledge of the Purchaser, any of the persons or
entities listed in Schedules I and II or any associate or majority-owned
subsidiary of the Purchaser or Parent or any of the persons or entities so
listed, beneficially owns any equity security of the Company, and neither the
Purchaser nor Parent or, to the best knowledge of the Purchaser, any of the
other persons or entities referred to above, or any of the respective directors,
executive officers or subsidiaries of any of the foregoing, has effected any
transaction in any equity security of the Company during the past 60 days.
Except as described in this Offer to Purchase, (1) there have not been any
contacts, transactions or negotiations between the Purchaser or Parent, any of
their respective subsidiaries or, to the best knowledge of the Purchaser, any of
the persons or entities listed in Schedules I and II, on the one hand, and the
Company or any of its directors, officers or affiliates, on the other hand, that
are required to be disclosed pursuant to the rules and regulations of the
Commission and (2) neither the Purchaser nor Parent or, to the best knowledge of
the Purchaser, any of the persons or entities listed in Schedules I and II has
any contract, arrangement, understanding or relationship with any person with
respect to any securities of the Company.
Except as described in this Offer to Purchase, during the last five years,
neither the Purchaser nor Parent or, to the best knowledge of the Purchaser, any
of the persons or entities listed in Schedules I and II (a) has been convicted
in a criminal proceeding (excluding traffic violations and similar misdemeanors)
or (b) was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, Federal or state securities laws or finding any violation
of such laws. The name, business address, present principal occupation or
employment, five-year employment history and citizenship of each of the
directors and executive
14
<PAGE>
officers of the Purchaser and Parent are set forth in Schedule I. The name,
business address, present principal occupation or employment, five year
employment history and citizenship of each of the controlling persons of Kylix,
the directors and executive officers of Quentin, Belisarius and East Harbor and
the directors and executive officers of BSC are set forth in Schedule II.
Available Information. Parent is subject to the reporting requirements of
the Exchange Act and, in accordance therewith, is required to file reports and
other information with the Commission relating to its business, financial
condition and other matters. Information as of particular dates concerning
Parent's directors and officers, their remuneration, stock options and other
matters, the principal holders of Parent's securities and any material interest
of such persons in transactions with Parent is disclosed in proxy statements
distributed to Parent's stockholders and filed with the Commission. Such
reports, proxy statements and other information should be available for
inspection at the Commission, and copies thereof should be obtainable from the
Commission, in the same manner as set forth with respect to information
concerning the Company in Section 8. Such material should also be available for
inspection at The Nasdaq National Market, as provided in Section 8.
10. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser to purchase all
outstanding Shares pursuant to the Offer and to pay fees and expenses related to
the Offer and the Merger is estimated to be approximately $181 million. The
Purchaser plans to obtain all funds needed for the Offer and the Merger through
a capital contribution which will be made by Parent to the Purchaser. Parent
plans to obtain funds for such capital contribution pursuant to a credit
agreement to be entered into pursuant to a commitment letter dated October 20,
1994, as amended on October 27, 1994, and as further amended on November 10,
1994 (the 'Commitment Letter'), with Chemical Bank ('Chemical').
Pursuant to the Commitment Letter, Chemical has committed to provide (i) a
senior secured term facility of up to $200 million (the 'Term Facility') and
(ii) a senior secured revolving credit facility of up to $100 million (the
'Revolving Facility', and together with the Term Facility collectively, the
'Credit Facilities'). Loans under the Term Facility (the 'Term Loans') will be
incurred pursuant to an initial borrowing on the consummation of the Offer and a
second borrowing on the date the Merger is consummated to (i) finance the
acquisition of the Shares, (ii) refinance indebtedness of the Company, (iii)
refinance indebtedness under the Parent's existing revolving credit facility
(the 'Existing Bank Facility') and (iv) pay related fees and expenses. Once
repaid, Term Loans may not be reborrowed. Loans under the Revolving Facility
(the 'Revolving Loans', and together with the Term Loans collectively, the
'Loans') will be available on and after the consummation of the Offer and may be
incurred (a) for the same purposes as the Term Loans (provided that Revolving
Loans in excess of $60 million shall not be incurred for the purposes described
in this clause (a) without the prior consent of Chemical), and (b) to finance
general corporate and working capital requirements.
The Commitment Letter provides, among other things, for the payment by
Parent of a commitment fee on the aggregate unutilized commitments of each
lender under the Credit Facilities. Such commitment fee shall be 3/8 of 1% per
annum, subject to reductions at times and based upon financial criteria to be
mutually agreed upon in the definitive documentation in respect of the Credit
Facilities.
The Commitment Letter provides that interest rates in respect of Loans
under the Credit Facilities shall be, at Parent's option, either (i) the Base
Rate plus the Applicable Margin or (ii) the Eurodollar Rate (adjusted for
maximum reserves) plus the Applicable Margin for one, two, three or six month
interest periods. 'Base Rate' is defined in the Commitment Letter as the highest
of (i) the announced prime rate of Chemical, (ii) the Federal Reserve reported
certificate of deposit rate plus 1% and (iii) the federal funds rate plus 1/2 of
1%. 'Applicable Margin' is defined in the Commitment Letter to equal (x) 1/4 of
1% per annum for Base Rate Loans and (y) 1 1/4% per annum for Eurodollar Loans,
in each case subject to reductions based upon financial criteria to be mutually
agreed upon in the definitive documentation in respect of the Credit Facilities.
'Eurodollar Rate' is to be defined in the definitive documentation in respect of
the Credit Facilities.
The Commitment Letter provides that Term Loans will mature on the date
seven years after consummation of the Offer, subject to an amortization schedule
to be agreed upon in the definitive
15
<PAGE>
documentation in respect of the Credit Facilities. The Revolving Facility will
mature and terminate on the date seven years after the consummation of the
Offer.
The Commitment Letter provides that, subject to certain limited exceptions,
each subsidiary of Parent (including the Surviving Corporation) shall be
required to provide an unconditional guarantee of all of the obligations of
Parent with respect to the Credit Facilities. The Commitment Letter further
provides that Parent and each of its subsidiaries shall provide collateral
security on substantially the same terms as contained in the Existing Bank
Facility. The Existing Bank Facility is secured by perfected first priority
liens on (i) all capital stock of the Company's subsidiaries (other than foreign
subsidiaries) and joint ventures held by the Company, (ii) 65% of the capital
stock of foreign subsidiaries held by the Company, (iii) subject to certain
exceptions, all accounts receivable and inventory of the Company and its
subsidiaries and (iv) certain of the Company's manufacturing facilities.
Substantially all the Company's patents and trademarks are also pledged to
secure indebtedness under the Existing Bank Facility. In addition, Parent is
required to pledge the capital stock of the Purchaser and, on the Effective
Date, Parent is required to pledge the capital stock of the Surviving
Corporation and cause the Surviving Corporation to pledge the capital stock of
its subsidiaries.
The Commitment Letter further states that the definitive documentation in
respect of the Credit Facilities shall include mandatory prepayment (and
commitment reduction) provisions in respect of the net proceeds of any sale or
other disposition (including a sale-leaseback) by Parent and/or any of its
subsidiaries of any assets (subject to certain exceptions) and certain
incurrences of debt and, subject to reduction upon satisfaction of financial
criteria to be agreed upon in the definitive documentation in respect of the
Credit Facilities, from a percentage to be agreed upon of excess cash flow.
The Credit Facilities are conditioned on certain customary conditions,
including conditions substantially similar to those set forth in Section 14
hereof, and are expected to contain customary representations, warranties,
covenants and events of default.
It is anticipated that the indebtedness incurred by Parent under the
Facilities will be repaid from funds generated internally by Parent and its
subsidiaries (including, after the Merger, funds generated by the Company) and
from other sources. No final decisions have been made concerning the method
Parent will employ to repay such indebtedness. Such decisions will be based on
Parent's review from time to time of the advisability of particular actions, as
well as on prevailing interest rates and financial and other economic
conditions.
In connection with the Commitment Letter, Parent agreed to indemnify
Chemical against certain liabilities.
The foregoing summary of the Commitment Letter is qualified in its entirety
by reference to the text of the Commitment Letter, which was filed as an exhibit
to the Purchaser's Tender Offer Statement on Schedule 14D-1 (the 'Schedule
14D-1'). See Section 17.
11. CONTACTS WITH THE COMPANY; BACKGROUND OF THE OFFER
In January 1994, Mr. David R. Paridy, President and Chief Executive Officer
of Parent, called Mr. Richard L. Wolf, Chairman and Chief Executive Officer of
the Company, to inquire about the possibility of an acquisition transaction
between Parent and the Company. As a result of this discussion, no timetable was
set for future meetings or discussions, but Mr. Paridy called Mr. Wolf on two or
three occasions over the course of the next two months to further emphasize
Parent's interest in the Company.
As a result of these subsequent conversations, Mr. Wolf agreed to allow Mr.
Paridy and certain other personnel of Parent to tour the manufacturing
facilities of the Company. Mr. Paridy and Mr. Wolf attempted on two occasions to
arrange these tours, but scheduling conflicts prevented them from taking place.
In May 1994, Mr. Rupert Warren, one of the Principal Stockholders, was
contacted on behalf of Parent by an attorney, Arnold B. Gardner, who expressed
to Mr. Warren the interest of Parent in acquiring the Company. During May and
June 1994, Mr. Gardner had a series of conversations with Mr.
16
<PAGE>
Warren with regard to such a proposed acquisition and also had discussions with
Christopher T. Dunstan, the Vice-Chairman and Chief Financial Officer of the
Company, and Albert R. Mugel, a director of the Company, in order to convey the
Parent's interest in the Company and to seek meetings between representatives of
the Parent and the Company to explore the subject. In late May and June 1994,
Mr. Ward W. Woods, Jr., the Chairman of the Board of Directors of Parent, spoke
on several occasions with Mr. Warren to convey directly and to reaffirm Parent's
interest in the Company. Mr. Woods and Mr. Warren agreed to meet at a subsequent
time but no such meeting took place. During June and July 1994, Mr. Gardner also
had conversations on the same subject with Mr. Wolf.
On July 14, 1994, the Company issued a press release which indicated, among
other things, that the Company had received expressions of interest to acquire
the Company and that the Company had retained Goldman Sachs to advise it with
respect thereto. In mid-to-late July 1994, Mr. Gardner had discussions with Mr.
Wolf and Mr. Mugel to express the Parent's continuing interest in an acquisition
of the Company, seeking to elicit further information in respect of the plans of
Company management in response to the interest expressed by Parent and by other
prospective acquirors.
In August 1994, there were numerous telephone calls between and among Mr.
Paridy, Mr. Wolf, Mr. Woods, Mr. Warren, Mr. Dunstan and Mr. Gardner regarding
the possibility of an acquisition of the Company by Parent. On August 17, 1994,
and pursuant to the process established by Goldman Sachs, Parent executed a
confidentiality agreement with the Company pursuant to which Parent agreed that
the confidential information provided to it by the Company would be used solely
for the purpose of evaluating a possible transaction of the Company and that any
such information, as well as discussions between the Parent and the Company
would be kept confidential by Parent. The standstill provisions of the
confidentiality agreement prohibited Parent from, among other things, acquiring
or offering to acquire any voting securities of the Company (or any rights or
options to acquire such voting securities) or soliciting proxies to vote the
voting securities of the Company, unless, in any case, the Company otherwise
consented in writing. A copy of the confidentiality agreement has been filed
with the Commission as an exhibit to the Purchaser's and Parent's Tender Offer
Statement on Schedule 14D-1.
On September 1, 1994, Parent received a confidential information memorandum
from Goldman Sachs which provided financial analysis and certain other business
information with respect to the Company. Shortly thereafter a proposed form of
merger agreement was distributed by the Company to Parent.
Throughout September and October 1994, as part of Parent's due diligence
investigation of the Company, Parent and several of its employees and advisors
visited the document repository established by the Company for prospective
acquirors, and numerous representatives of Parent had conversations with the
Company and its advisors and employees with respect to due diligence matters as
well as Parent's continuing interest in the Company. During this period,
representatives and employees of Parent also toured the Company's facilities in
Buffalo, Detroit, Atlanta, Mexico and the United Kingdom.
On October 21, 1994, Parent submitted an initial proposal to acquire the
Company to Goldman Sachs. Between November 2, 1994 and November 7, 1994, there
were several meetings and conversations between the Company, Parent and their
respective legal and financial advisors with respect to Parent's proposal to
acquire the Company, as well as the proposed form of merger agreement and the
Stockholders Agreement which was required by Parent as a condition to its
proposal. See Section 12 for a description of the Merger Agreement and the
Stockholders Agreement.
On November 7, 1994, Parent submitted a revised proposal to the Board of
Directors of the Company to acquire the outstanding shares of the Company for a
purchase price of $85.00 per share. In the afternoon of November 7, 1994, Parent
was informed by Goldman Sachs that the Board of Directors of the Company had
approved Parent's proposal and that the Company was prepared to enter into
definitive documentation with respect thereto.
In the morning of November 8, 1994, Parent, the Purchaser and the Company
entered into the Merger Agreement and Parent and the Purchaser entered into the
Stockholders Agreement with the Principal Stockholders and the terms of the
Merger Agreement were publicly announced. See Section 12 for a description of
the Merger Agreement and the Stockholders Agreement.
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12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT AND THE STOCKHOLDERS AGREEMENT
Purpose
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. Following the Offer, the Purchaser and Parent intend
to acquire any remaining Shares not acquired in the Offer or pursuant to the
Stockholders Option or the Contingent Option (as defined below) by consummating
the Merger.
Merger Agreement
The Merger Agreement provides that, following the satisfaction or waiver of
the conditions described below under 'Conditions Precedent to the Obligations of
Each Party If the Offer Is Consummated' or 'Additional Conditions Precedent to
the Obligations of Purchaser and Parent If the Offer Is Not Consummated', as
applicable, the Purchaser will be merged with and into the Company, and each
then outstanding Share (other than Shares held by the Company as treasury stock
or by any subsidiary of the Company, Parent, the Purchaser or any other
subsidiary of Parent or by stockholders, if any, who are entitled to and who
properly exercise dissenters' rights under New York law) will be converted into
the right to receive an amount in cash equal to the price per Share paid
pursuant to the Offer.
VOTE REQUIRED TO APPROVE MERGER. The NYBCL requires, among other things,
that the adoption of any plan of merger of the Company must be approved by the
Board of Directors and generally by the holders of the Company's outstanding
voting securities. The Board of Directors of the Company has approved the Offer
and the Merger; consequently, the only additional action of the Company that may
be necessary to effect the Merger is approval by such stockholders if the
'short-form' merger procedure described below is not available. Under the NYBCL,
the affirmative vote of holders of two-thirds of the outstanding Shares
(including any Shares owned by the Purchaser and any Shares subject to the
Stockholders Agreement) is generally required to approve the Merger. If the
Purchaser acquires, through the Offer or otherwise (including in respect of the
Stockholders Option), voting power with respect to at least two-thirds of the
outstanding Shares (which would be the case if the Minimum Condition were
satisfied and the Purchaser were to accept for payment Shares tendered pursuant
to the Offer), it would have sufficient voting power to effect the Merger
without the vote of any other stockholder of the Company. The NYBCL also
provides that if a parent company owns at least 90% of each class of stock of a
subsidiary, the parent company can effect a short-form merger with that
subsidiary without the action of the other stockholders of the subsidiary.
Accordingly, if, as a result of the Offer or otherwise, the Purchaser acquires
at least 90% of the outstanding Shares, the Purchaser could, and intends to,
effect the Merger without prior notice to, or any action by, any other
stockholder of the Company. For a discussion of certain terms of the Merger
Agreement that increase the likelihood that the Purchaser could acquire at least
90% of the outstanding Shares, see the discussion of the Contingent Option in
the immediately following paragraph.
CONTINGENT OPTION OF PURCHASER. Pursuant to the Merger Agreement, the
Company has granted to Parent an irrevocable option (the 'Contingent Option') to
purchase for a price of $85.00 per share (the 'Per Share Price') in cash a
number of Shares equal to the Applicable Amount. 'Applicable Amount' is defined
to be the number of Shares which, when added to the number of Shares owned by
the Purchaser and Parent immediately prior to its exercise of the Contingent
Option, would result in Parent owning immediately after its exercise of the
Contingent Option 90% of the then outstanding Shares; provided that such number
shall not exceed all Shares held by the Company in its treasury. Parent may
exercise the Contingent Option only if at the time of exercise, it (x) shall
have accepted Shares for payment pursuant to the Offer and (y) shall own at
least two-thirds of the number of outstanding Shares. The Contingent Option
shall expire if not exercised prior to the earlier of the Effective Date and
12:00 midnight, Eastern time, on the date 15 business days after termination of
the Offer.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF EACH PARTY IF THE OFFER IS
CONSUMMATED. If the Offer is consummated, the obligations of the Company, Parent
and the Purchaser to effect the Merger shall be subject to the fulfillment at or
prior to the effective time of the Merger (the 'Effective Date') of the
following conditions: (a) if approval of the Merger Agreement by Company
stockholders is required by law, the holders of the shares of capital stock of
the Company and the Purchaser entitled to vote
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thereon shall have duly approved the Merger Agreement and the transactions
contemplated hereby, all in accordance with the requirements of the NYBCL and
the respective certificates of incorporation and by-laws of the Company and the
Purchaser, (b) no temporary restraining order, preliminary or permanent
injunction or other order by any court of competent jurisdiction or other legal
restraint which prohibits the consummation of the transactions contemplated by
the Merger Agreement shall have been issued; provided, that the parties shall
have used all reasonable efforts to have such order or injunction vacated or
reversed, and (c) the waiting period (and any extension thereof) as prescribed
by the regulations promulgated under the HSR Act shall have expired or shall
have been terminated.
ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER AND PARENT
IF THE OFFER IS NOT CONSUMMATED. The Merger Agreement provides that, in certain
circumstances, the Merger may be consummated in the event the Offer is not
consummated so long as certain conditions are satisfied. The obligations of the
Purchaser and Parent to effect the Merger in the event that the Offer is not
consummated and the Merger Agreement shall not have been terminated in
accordance with its terms shall be subject to (i) the conditions specified in
clause (a) and clause (c) of 'Conditions Precedent to the Obligations of Each
Party If the Offer Is Consummated' above and (ii) conditions substantially the
same as those set forth in paragraphs (a)-(g) of Section 14 hereof.
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
at any time prior to the Effective Date, whether before or after approval by the
stockholders of the Company:
(a) by mutual written consent of the Board of Directors of Parent and
the Board of Directors of the Company;
(b) by either Parent or the Company if the Offer shall not have been
consummated on or before April 30, 1995 (provided the terminating party is
not otherwise in breach of its representations, warranties or obligations
under the Merger Agreement; and provided further that the Company may not
terminate the Merger Agreement pursuant to the provisions set forth in this
clause (b) if at any time (x) any of the conditions described in paragraph
(d) of Section 14 of this Offer to Purchase shall have occurred or (y) any
Acquisition Proposal (as defined below) shall have been publicly announced
or otherwise been made publicly known);
(c) by the Company if any of the conditions specified in 'Conditions
Precedent to the Obligations of Each Party If the Offer Is Consummated'
have not been met or waived by the Company at such time as such condition
is no longer capable of satisfaction as long as the Company is not in
breach of the Merger Agreement;
(d) by Parent if any of the conditions specified in 'Conditions
Precedent to the Obligations of Each Party If the Offer Is Consummated' or
'Additional Conditions Precedent to the Obligations of Purchaser and Parent
If the Offer Is Not Consummated' have not been met or waived by Parent at
such time as such condition is no longer capable of satisfaction as long as
Parent is not in breach of the Merger Agreement;
(e) by the Purchaser or Parent if either the Purchaser or Parent is
entitled to terminate the Offer as a result of the occurrence of any event
described in paragraph (d) of Section 14 of this Offer to Purchase; and
(f) by the Company if all of the following conditions are satisfied:
(i) prior to the consummation of the Offer, the Company or its Board of
Directors shall have received a Superior Proposal (as defined under
'Acquisition Proposals' below) from a Third Party (as defined under
'Acquisition Proposals' below), which Third Party (x) is not referred to in
the engagement letter between the Company and Goldman Sachs and (y) shall
not have entered into a confidentiality agreement with the Company with
respect to a potential acquisition proposal under 'Acquisition Proposals'
since November 1, 1993, (ii) the Board of Directors of the Company shall
have received the written opinion of outside legal counsel to the Company
to the effect that the fiduciary obligations of the Board of Directors
require that the Company terminate the Merger Agreement and enter into an
agreement with respect to the Superior Proposal, (iii) the Board of
Directors of the Company shall have resolved to enter into definitive
documentation with respect to the Superior Proposal within 48 hours of the
termination of the Merger Agreement and (iv) the Company shall have paid to
the Purchaser an amount in cash equal to the Termination Fee.
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TERMINATION FEE. The Company shall pay to Parent upon demand an amount in
cash equal to $7,000,000 ('the Termination Fee') if (i) the Company terminates
the Merger Agreement pursuant to paragraph (f) under 'Termination of the Merger
Agreement' above or (ii) the Purchaser or Parent terminates the Merger Agreement
pursuant to paragraph (e) under 'Termination of the Merger Agreement' above.
ACQUISITION PROPOSALS. The Merger Agreement provides that neither the
Company nor any of its subsidiaries shall, directly or indirectly, take (nor
shall the Company authorize or permit its subsidiaries, officers, directors,
employees, representatives, investment bankers, attorneys, accountants or other
agents or affiliates, to take) any action to (i) encourage, solicit or initiate
the submission of any Acquisition Proposal (as defined below), (ii) enter into
any agreement with respect to any Acquisition Proposal or (iii) participate in
discussion or negotiations with, or furnish any information to, any person in
connection with any Acquisition Proposal; provided that, to the extent required
by the fiduciary obligations of the Board of Directors of the Company (as
determined in good faith by the Board of Directors of the Company based on the
written advice of outside legal counsel to the Company), upon receipt of (x) an
unsolicited and written Superior Proposal (as defined below) or (y) an
unsolicited and written Potential Superior Proposal (as defined below), in
either case from a Third Party not referred to in the engagement letter between
the Company and Goldman Sachs and with which the Company shall not have entered
into a confidentiality agreement with respect to a potential Acquisition
Proposal since November 1, 1993, the Company may (1) take the action referred to
in clause (ii) with respect to such Superior Proposal or Potential Superior
Proposal but only in connection with a simultaneous termination of the Merger
Agreement in accordance with the provision set forth in paragraph (f) under
'Termination of the Merger Agreement' above, and (2) take any of the actions
referred to in clause (iii) with respect to such Superior Proposal or Potential
Superior Proposal. For purposes of the Merger Agreement 'Acquisition Proposal'
means, except for the transactions contemplated by the Merger Agreement, any
proposed (i) merger, consolidation or similar transaction involving the Company,
(ii) sale, lease or other disposition directly or indirectly by merger,
consolidation, share exchange or otherwise of assets of the Company or its
subsidiaries representing 10% or more of the consolidated assets of the Company
and its subsidiaries, (iii) issue, sale or other disposition of (including by
way of merger, consolidation, share exchange or any similar transaction)
securities (or options, rights or warrants to purchase, or securities
convertible into, such securities) representing 10% or more of the voting power
of the Company or (iv) transaction in which any person shall acquire beneficial
ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the
right to acquire beneficial ownership or any 'group' (as such term is defined
under the Exchange Act) shall have been formed which beneficially owns or has
the right to acquire beneficial ownership of 10% or more of the outstanding
Shares. The Merger Agreement requires that the Company shall notify Parent
promptly of any Acquisition Proposal and shall provide Parent all available
information with respect thereto.
The Merger Agreement further provides that the provisions of the prior
paragraph shall not be deemed to prohibit the Board of Directors of the Company,
prior to the consummation of the Offer, from withdrawing or modifying its
approval or recommendation of the Offer, the Merger Agreement, the Stockholders
Agreement or the Merger if a Superior Proposal is made, provided that (i) such
action is required by the fiduciary obligations of the Board of Directors of the
Company as determined in good faith by a majority of the disinterested members
thereof, taking into account (x) the financial and other terms and conditions of
the Superior Proposal and (y) the time period within which the transactions
contemplated by such Superior Proposal can be consummated and (ii) the Board of
Directors of the Company shall have received the written opinion of outside
legal counsel to the Company to the effect that such action is required by the
fiduciary obligations of the Board of Directors of the Company.
For purposes of the Merger Agreement, 'Superior Proposal' means a bona fide
proposal made by a Third Party to acquire all the outstanding Shares or all or
substantially all the assets of the Company pursuant to a tender or exchange
offer, a merger or otherwise on terms which a majority of the disinterested
members of the Board of Directors of the Company determine in its good faith
judgment to be financially superior to the Company's stockholders than the Offer
and the Merger (based on a valuation letter of Goldman Sachs stating that, as of
the date of withdrawal or modification of the approval or recommendation of the
Offer and the Merger by the Board of Directors of the Company, the value of the
consideration provided for in such proposal exceeds the value of the
consideration
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provided for in the Offer and the Merger, which valuation letter shall be
prepared specifically for use by the Company's Board of Directors in connection
with such modification or withdrawal). For purposes of the Merger Agreement, a
'Potential Superior Proposal' means a proposal that a majority of the
disinterested members of the Board of Directors of the Company determines in its
good faith judgment to be reasonably likely to lead to a Superior Proposal. For
purposes of the Merger Agreement, 'Third Party' means any corporation,
partnership, person or other entity or 'group' (as defined in Section 13(d)(3)
of the Exchange Act) other than Parent, any affiliate of the Purchaser or any of
their respective directors, trustees, officers, employees, representatives and
agents or any entity controlled by one or more such persons. The Merger
Agreement provides that no withdrawal or modification by the Board of Directors
of the Company of its approval or recommendation of the Offer, the Merger
Agreement, the Stockholders Agreement or the Merger pursuant to the provisions
of the Merger Agreement set forth in this paragraph shall affect any of the
Company's obligations under the Merger Agreement, and notwithstanding any such
withdrawal or modification, the Company shall continue to be obligated to carry
out the provisions of the Merger Agreement unless the Merger Agreement is
terminated in accordance with its terms.
CONDUCT OF BUSINESS BY THE COMPANY. The Merger Agreement provides that,
prior to the Effective Date, unless Parent shall otherwise agree in writing: (a)
the Company shall, and shall cause its subsidiaries to, carry on their
respective businesses in the usual, regular and ordinary course in substantially
the same manner as heretofore conducted, and shall, and shall cause its
subsidiaries to, use their best efforts to preserve intact their present
business organizations, keep available the services of their present officers
and employees and preserve their relationships with customers, suppliers and
others having business dealings with them; (b) except as required by the Merger
Agreement, the Company shall not, shall not permit any of its subsidiaries to,
and shall not propose to, (i) sell or pledge or agree to sell or pledge any
capital stock owned by it in any of its subsidiaries, (ii) amend its certificate
of incorporation or by-laws, (iii) split, combine or reclassify its outstanding
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of capital
stock of the Company, or declare, set aside or pay any dividend or other
distribution payable in cash, stock or property, (iv) directly or indirectly
redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise
acquire any Shares, any shares of capital stock of any of the Company's
subsidiaries or any other rights, interests or securities of the Company or any
of its subsidiaries or any rights, warrants or options to acquire any such
shares or other securities; (v) issue, deliver or sell or agree to issue,
deliver or sell any additional shares of, or rights of any kind to acquire any
shares of, its capital stock of any class, or any option, rights or warrants to
acquire, or securities convertible into, shares of capital stock other than
issuance of Shares pursuant to the exercise of the Contingent Option or employee
stock options outstanding on the date of the Merger Agreement and disclosed in
the Merger Agreement, (vi) acquire, lease or dispose or agree to acquire, lease
or dispose of any capital assets or any other assets other than sales of
inventory in the ordinary course of business consistent with past practice,
(vii) incur additional indebtedness or encumber or grant a security interest in
any asset or enter into any other material transaction other than short-term
borrowings in the ordinary course of business consistent with past practice
which do not result in the aggregate indebtedness of the Company and its
subsidiaries exceeding $53,000,000, (viii) make any loans or advances to any
person (other than customary travel or other allowances to employees consistent
with past practice), (ix) terminate, alter or amend certain agreements required
to be disclosed in the Merger Agreement or enter into any agreement which would
be required to be disclosed in the Merger Agreement if such agreement were
entered into on or prior to the date of the Merger Agreement, (x) acquire or
agree to acquire by merging or consolidating with, or by purchasing a
substantial equity interest in, or substantial assets of, or by any other
manner, any person, (xi) make or agree to make any new capital expenditure or
expenditures which, individually, is in excess of $100,000 or, in the aggregate,
are in excess of $2,000,000, (xii) make or agree to make any investment in
securities other than investments in investment grade debt securities with a
maturity of less than one year in an aggregate amount of less than $1,000,000,
(xiii) make any tax election or settle or compromise any tax liability, (xiv)
pay, discharge or satisfy any claims, liabilities or obligations (absolute,
accrued, asserted or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction, in the ordinary course of business
consistent with past practice or in accordance with their terms, of liabilities
reflected
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or reserved against in, or contemplated by, the most recent consolidated
financial statements (or the notes thereto) of the Company included in certain
public reports of the Company or incurred in the ordinary course of business
consistent with past practice, (xv) waive the benefits of, or agree to modify in
any manner, any confidentiality, standstill or similar agreement to which the
Company or any of its subsidiaries is a party, (xvi) take or omit to take any
action which would cause any of the representations or warranties of the Company
to become untrue, or (xvii) authorize, commit or agree to take any of, the
foregoing actions; and (c) subject to certain exceptions or as required to
comply with applicable law, the Company shall not, nor shall it permit, any of
its subsidiaries to, (i) adopt, enter into, terminate or amend any bonus, profit
sharing, compensation, severance, termination, stock option, pension,
retirement, deferred compensation, employment or other benefit plan, agreement,
trust, fund or other arrangement for the benefit or welfare of any director,
officer or current or former employee, (ii) increase in any manner the
compensation or fringe benefits of, or pay any bonus to, any director, officer
or employee (except for normal increases or bonuses in the ordinary course of
business consistent with past practice to employees other than directors,
officers or senior management personnel and that, in the aggregate, do not
result in a material increase in benefits or compensation expense to the Company
and its subsidiaries relative to the level in effect prior to such action (but
in no event shall the aggregate amount of all such increases exceed 5% of the
aggregate annualized compensation expense of the Company and its subsidiaries
reported in the most recent audited financial statements of the Company included
in certain public reports of the Company)), (iii) pay any benefit not provided
for under any of certain defined benefit plans and arrangements, (iv) except as
permitted in clause (c) (ii), grant any awards under any bonus, incentive,
performance or other compensation plan or arrangement or benefit plan
(including, without limitation, the grant of stock options, stock appreciation
rights, stock based or stock related awards, performance units or restricted
stock, or the removal of existing restrictions in any benefit plans or
agreements or awards made thereunder), (v) take any action to fund or in any
other way secure the payment of compensation or benefits under any employee
plan, agreement, contract or arrangement or benefit plan other than in the
ordinary course of business consistent with past practice, or (vi) authorize,
commit or agree to take, any of the foregoing actions.
BOARD OF DIRECTORS. The Merger Agreement provides that promptly upon the
acceptance for payment of, and payment for, any Shares by the Purchaser pursuant
to the Offer, all of the present directors of the Company shall resign, the
number of directors on the Board of Directors shall be reduced to five and the
Purchaser shall be entitled to designate replacement directors on the Board of
Directors of the Company such that the Purchaser, subject to compliance with
Section 14(f) of the Exchange Act, will control a majority of such directors,
and the Company and its Board of Directors of the Company shall take all such
action needed to cause the Purchaser's designees to be appointed to the
Company's Board of Directors. Subject to applicable law, the Company shall take
all action requested by Parent necessary to effect any such election, including
mailing to its shareholders the Information Statement containing the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder, and the Company agrees to make such mailing with the mailing of the
Schedule 14D-9.
EMPLOYEE ARRANGEMENTS. The Merger Agreement provides that after the date of
consummation of the Offer, Parent shall not take any action that would cause the
Company not to honor in accordance with their terms, all employment, severance,
consulting, indemnification, change of control and other compensation contracts
between the Company or any of its subsidiaries and any current or former
director, officer or employee thereof disclosed in the Merger Agreement. The
Merger Agreement further provides that, after the Effective Date, the Purchaser
intends to cause the Surviving Corporation to provide generally to the officers
and employees of the Surviving Corporation and its subsidiaries employee
benefits, including, without limitation, pension benefits, health and welfare
benefits, and severance arrangements that are in the aggregate comparable to the
benefits currently provided by the Company to such employees or to the benefits
currently provided by Parent to similarly situated employees of Parent.
STOCK OPTIONS PLANS. The Merger Agreement provides that on or before the
date of the Merger Agreement, the Board of Directors of the Company (or, if
appropriate, any committee administering the Stock Option Plans (as defined
below)) has adopted such resolutions or taken such other actions as
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are required to provide that (i) each outstanding stock option to purchase
Shares (a 'Stock Option') heretofore granted under any stock option, stock
appreciation rights or stock purchase plan, program or arrangement of the
Company (collectively, the 'Stock Option Plans') outstanding immediately prior
to the consummation of the Offer, whether or not then exercisable, shall be
cancelled immediately prior to the consummation of the Offer in exchange for an
amount in cash, payable at the time of such cancellation, equal to the product
of (y) the number of Shares subject to such Stock Option immediately prior to
the date of consummation of the Offer and (z) the excess of the price per share
to be paid in the Offer over the per share exercise price of such Stock Option
and (ii) each stock appreciation right ('SAR') granted under the Stock Option
Plans outstanding immediately prior to the date of consummation of the Offer
shall be cancelled immediately prior to the date of consummation of the Offer in
exchange for an amount of cash, payable at the time of such cancellation, equal
to the product of (y) the number of Shares covered by such SAR and (z) the
excess of the price per share to be paid in the Offer over the appreciation base
per share of such SAR; provided that no such cash payment shall be made with
respect to any SAR which is related to a Stock Option with respect to which such
a cash payment has been made. The Merger Agreement further provides that any
Stock Option or SAR not cancelled as contemplated by this paragraph immediately
prior to the date of consummation of the Offer, shall be cancelled at the
Effective Date in exchange for an amount in cash, payable at the Effective Date,
equal to the amount which would have been paid had such Stock Option or SAR been
cancelled immediately prior to the consummation of the Offer. In the event that
the Company does not have sufficient cash available to make payments in exchange
of any Stock Option or SAR, Parent will, when and only if the Offer is
consummated, make available to the Company cash sufficient to make such
purchases.
The Merger Agreement provides that all Stock Option Plans shall terminate
as of the Effective Date and the provisions in any other benefit plan providing
for the issuance, transfer or grant of any capital stock of the Company or any
interest in respect of any capital stock of the Company shall be deleted as of
the Effective Date, and the Company shall ensure that following the Effective
Date no holder of a Stock Option or any participant in any Stock Option Plan
shall have any right thereunder to acquire any capital stock of the Company, the
Purchaser or Parent, except as provided in the prior paragraph.
INDEMNIFICATION AND INSURANCE. The Merger Agreement provides that Parent
agrees that all rights to indemnification existing in favor of the directors,
officers or employees of the Company (the 'Indemnified Parties') as provided in
the Company's certificate of incorporation, by-laws or indemnification
agreements listed in the Merger Agreement that the Company has entered into with
directors and officers of the Company and its subsidiaries, as in effect as of
the date hereof, with respect to matters occurring through the Effective Date,
shall survive the Merger and shall continue in full force and effect for a
period of not less than six years from the Effective Date. The Merger Agreement
provides that Parent agrees to cause the Surviving Corporation to maintain in
effect for not less than three years after the Effective Date the current
policies of directors' and officers' liability insurance maintained by the
Company with respect to matters occurring prior to the Effective Date for all
persons who are directors or officers of the Company or any of its subsidiaries
on the date of the Merger Agreement; provided that (i) Parent may substitute
therefor policies of at least the same coverage (with carriers comparable to the
Company's existing carriers) containing terms and conditions which are no less
advantageous to the Indemnified Parties and (ii) Parent shall not be required to
pay an annual premium for such insurance in excess of two times the last annual
premium paid prior to the date hereof, but in such case shall purchase as much
coverage as possible for such amount. In the Merger Agreement, the Company
represents to Parent that the last annual premium paid prior to the date hereof
for such insurance does not exceed $300,000.
Stockholders Agreement
In connection with the execution of the Merger Agreement, the Purchaser and
Parent entered into the Stockholders Agreement, pursuant to which the Principal
Stockholders have agreed to tender to the Purchaser, pursuant to the Offer, all
the Shares owned by them, representing an aggregate of 614,296 Shares or
approximately 33% of the Shares outstanding as of November 8, 1994. Accordingly,
the
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Minimum Condition will be satisfied if, in addition to the Shares owned by the
Principal Stockholders, at least 638,124 Shares, or approximately 51% of those
Shares issued and outstanding at November 8, 1994 and not owned by the Principal
Stockholders, are validly tendered and not withdrawn prior to the Expiration
Date. If all employee stock options were exercised prior to the Expiration Date,
approximately 769,977 Shares not owned by the Principal Stockholders would have
to be validly tendered and not withdrawn for the Minimum Condition to be
satisfied.
The Stockholders Agreement provides that within five business days of the
commencement by the Purchaser of the Offer, each Principal Stockholder shall
tender to the Depositary (i) a letter of transmittal with respect to the Shares
owned or held by the relevant Principal Stockholder complying with the terms of
this Offer to Purchase, (ii) the certificates representing the Shares and (iii)
all other documents or instruments required to be delivered pursuant to the
terms of this Offer to Purchase. The Stockholders Agreement further provides
that no Principal Stockholder shall, subject to applicable law, withdraw the
tender effected in accordance with the Stockholders Agreement; provided,
however, that (i) a Principal Stockholder may decline to tender, or may
withdraw, any and all Shares owned by such Principal Stockholder if (A) the
amount or form of consideration to be paid for such Shares is less than $85.00
per share in cash, net to such Principal Stockholder, or (B) the Merger
Agreement is terminated in accordance with its terms and (ii) each Principal
Stockholder shall give the Purchaser at least three business days' prior notice
of any withdrawal of Shares owned by such Principal Stockholder.
The Stockholders Agreement further provides that Principal Stockholders
irrevocably grant to the Purchaser the Stockholders Option exercisable only upon
the events and subject to the conditions set forth in the Stockholders
Agreement, to purchase all of the Shares subject to the Stockholders Agreement
at a purchase price per share equal to $85.00 (the 'Option Price'). The
Stockholders Option will terminate upon termination of the Merger Agreement.
Subject to the conditions set forth in the following paragraph, under the
Stockholders Agreement, the Purchaser may exercise the Stockholders Option in
whole as to all Shares at any time prior to the date 60 days after the
expiration or termination of the Offer if (x) any Principal Stockholder fails to
comply with any of its obligations under the Stockholders Agreement or withdraws
the tender of the Shares except under the circumstances set forth in the proviso
to the preceding paragraph (but the Stockholders Option shall not limit any
other right or remedy available to the Purchaser or Parent against any Principal
Stockholder for breach of the Stockholders Agreement) or (y) the Offer is not
consummated because of the existence of any of the conditions to the Offer set
forth in Section 14 of this Offer to Purchase (other than as a result of any
action or inaction of the Purchaser or Parent which constitutes a breach of the
Merger Agreement) and (1) the Board of Directors of the Company or any committee
thereof shall have withdrawn or modified in a manner adverse to the Purchaser or
Parent its approval or recommendation of the Offer, the Merger, the Merger
Agreement or the Stockholders Agreement or (2) there shall have been publicly
announced or otherwise publicly disclosed any Acquisition Proposal. Upon the
occurrence of any of such circumstances, the Purchaser shall be entitled to
exercise the Stockholders Option and (subject to the following paragraph) the
Purchaser shall be entitled to purchase the Shares owned by the Principal
Stockholders and the Principal Stockholders shall sell such Shares to the
Purchaser.
The Stockholders Agreement provides the obligation of the Purchaser to
purchase the Shares at the Option Price is subject to the following conditions:
(a) all waiting periods under the HSR Act applicable to such purchase shall have
expired or been terminated; and (b) there shall be no preliminary or permanent
injunction or other order, decree or ruling issued by any Governmental Entity,
nor any statute, rule, regulation or order promulgated or enacted by any
Governmental Entity prohibiting, or otherwise restraining, such purchase.
Under the Stockholders Agreement the Purchaser may allow the Offer to
expire without accepting for payment or paying for any Shares, as set forth in
this Offer to Purchase, and may allow the Stockholders Option to expire without
exercising the Stockholders Option and purchasing all or any Shares pursuant to
such exercise. If any Shares are not accepted for payment in accordance with the
terms of this Offer to Purchase or pursuant to the exercise of the Stockholders
Option, they shall be returned to the applicable Principal Stockholder,
whereupon they shall continue to be held by such Principal Stockholder subject
to the terms and conditions of the Stockholders Agreement.
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<PAGE>
The Stockholders Agreement further provides that each Principal Stockholder
revokes any and all previous proxies granted with respect to the Shares owned by
such Principal Stockholder. By entering into the Stockholders Agreement, each
Principal Stockholder consents to the Merger Agreement and the transactions
contemplated thereby, including the Merger. So long as the Merger Agreement is
in effect, each Principal Stockholder agrees (i) to vote all Shares now or
hereafter owned by such Principal Stockholder in favor of the Merger Agreement,
the Merger and the transactions contemplated thereby and (ii) to oppose any
Acquisition Proposal and to vote all Shares now or hereafter owned by such
Principal Stockholder against any Acquisition Proposal.
Each Principal Stockholder covenants and agrees in the Stockholders
Agreement that, so long as the Merger Agreement is in effect: (a) such Principal
Stockholder shall not directly or indirectly (i) solicit, initiate or encourage
(or authorize any person to solicit, initiate or encourage) any Acquisition
Proposal or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or participate in, facilitate or encourage any effort
or attempt by any other person to do or seek the foregoing and such Principal
Stockholder shall promptly advise the Purchaser of the terms of any
communications it or any of its affiliates may receive relating to any
Acquisition Proposal, and (b) in the event of any change in the Company's
capital stock by reason of stock dividends, stock splits, mergers,
consolidations, recapitalization, combinations, conversions, exchanges of
shares, extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the effect of
diluting or changing the Purchaser's rights hereunder, the number and kind of
shares or securities subject to the Stockholders Agreement and the purchase
price shall be appropriately and equitably adjusted so the Purchaser shall
receive pursuant to the Offer or the exercise of the Stockholders Option the
number and class of shares or other securities or property that the Purchaser
would have received in respect of the Shares purchasable pursuant to the Offer
or the exercise of the Stockholders Option if such purchase had occurred
immediately prior to such event and that such Principal Stockholder shall
request the Company to take, and shall use reasonable efforts to take, such
steps in connection with the foregoing as may be necessary to assure that the
provisions hereof shall thereafter apply as nearly as possible to any securities
or property thereafter deliverable pursuant to the Offer or the exercise of the
Stockholders Option.
Appraisal Rights
Holders of Shares do not have dissenters' rights as a result of the Offer.
However, if the Merger is consummated, holders of Shares will have certain
rights pursuant to the provisions of Sections 910 and 623 of the NYBCL to
dissent and demand appraisal of, and to receive payment in cash of the fair
value of, their Shares. If the statutory procedures were complied with, such
rights could lead to a judicial determination of the fair value required to be
paid in cash to such dissenting holders for their Shares. Any such judicial
determination of the fair value of Shares could be based upon considerations
other than or in addition to the Offer Price, the consideration receivable in
connection with the Merger (the 'Merger Price') or the market value of the
Shares, including asset values and the investment value of the Shares. The value
so determined could be more or less than the Offer Price or the Merger Price.
If any holder of Shares who demands appraisal under the NYBCL fails to
perfect, or effectively withdraws or loses his right to appraisal, as provided
in the NYBCL, the Shares of such stockholder will be converted into the right to
receive the Merger Price in accordance with the Merger Agreement. A stockholder
may withdraw his demand for appraisal by delivery to Parent of a written
withdrawal of his demand for appraisal and acceptance of the Merger.
FAILURE TO FOLLOW THE STEPS REQUIRED BY THE NYBCL FOR PERFECTING APPRAISAL
RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
Going Private Transactions
The Merger would have to comply with any applicable Federal law operative
at the time of its consummation. Rule 13e-3 under the Exchange Act is applicable
to certain 'going private' transactions. The Purchaser does not believe that
Rule 13e-3 will be applicable to the Merger unless the Merger is
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<PAGE>
consummated more than one year after the termination of the Offer. If
applicable, Rule 13e-3 would require, among other things, that certain financial
information concerning the Company and certain information relating to the
fairness of the Merger and the consideration offered to minority shareholders be
filed with the Commission and disclosed to minority shareholders prior to
consummation of the Merger.
Other Matters
Parent intends to conduct a detailed review of the Company and its assets,
corporate structure, dividend policy, capitalization, operations, properties,
policies, management and personnel and to consider, subject to the terms of the
Merger Agreement, what, if any, changes would be desirable in light of the
circumstances then existing, and reserves the right to take such actions or
effect such changes as it deems desirable. Such changes could include changes in
the Company's business, corporate structure, capitalization, Board of Directors,
management or dividend policy.
Except as otherwise described in this Offer to Purchase, the Purchaser and
Parent have no current plans or proposals that would relate to, or result in,
any extraordinary corporate transaction involving the Company, such as a merger,
reorganization or liquidation involving the Company or any of its subsidiaries,
a sale or transfer of a material amount of assets of the Company or any of its
subsidiaries, any change in the Company's capitalization or dividend policy or
any other material change in the Company's business, corporate structure or
personnel.
13. DIVIDENDS AND DISTRIBUTIONS
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two succeeding paragraphs, and
nothing herein shall constitute a waiver by the Purchaser or Parent of any of
its rights under the Merger Agreement or a limitation of remedies available to
the Purchaser or Parent for any breach of the Merger Agreement, including
termination thereof.
If, on or after the date of the Merger Agreement, the Company should (a)
split, combine or otherwise change the Shares or its capitalization, (b) acquire
currently outstanding Shares or otherwise cause a reduction in the number of
outstanding Shares or (c) issue or sell additional Shares, shares of any other
class of capital stock, other voting securities or any securities convertible
into, or rights, warrants or options, conditional or otherwise, to acquire, any
of the foregoing, other than Shares issued pursuant to the exercise of
outstanding employee stock options, then, subject to the provisions of Section
14 below, the Purchaser, in its sole discretion, may make such adjustments as it
deems appropriate in the Offer Price and other terms of the Offer.
If, on or after the date of the Merger Agreement, the Company should
declare or pay any cash dividend on the Shares or other distribution on the
Shares, or issue with respect to the Shares any additional Shares, shares of any
other class of capital stock, other voting securities or any securities
convertible into, or rights, warrants or options, conditional or otherwise, to
acquire, any of the foregoing, payable or distributable to stockholders of
record on a date prior to the transfer of the Shares purchased pursuant to the
Offer to the Purchaser or its nominee or transferee on the Company's stock
transfer records, then, subject to the provisions of Section 14 below, (a) the
Offer Price may, in the sole discretion of the Purchaser, be reduced by the
amount of any such cash dividend or cash distribution and (b) the whole of any
such noncash dividend, distribution or issuance to be received by the tendering
stockholders will (i) be received and held by the tendering stockholders for the
account of the Purchaser and will be required to be promptly remitted and
transferred by each tendering stockholder to the Depositary for the account of
the Purchaser, accompanied by appropriate documentation of transfer, or (ii) at
the direction of the Purchaser, be exercised for the benefit of the Purchaser,
in which case the proceeds of such exercise will promptly be remitted to the
Purchaser. Pending such remittance and subject to applicable law, the Purchaser
will be entitled to all rights and privileges as owner of any such noncash
dividend, distribution, issuance or proceeds and may withhold the entire Offer
Price or deduct from the Offer Price the amount or value thereof, as determined
by the Purchaser in its sole discretion.
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<PAGE>
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Merger Agreement, the
Purchaser shall not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
under the Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered Shares after the termination or withdrawal of the Offer), to pay
for any Shares tendered pursuant to the Offer unless (i) the Minimum Condition
shall have been satisfied and (ii) any waiting period under the HSR Act
applicable to the purchase of Shares pursuant to the Offer shall have expired or
been terminated. Furthermore, notwithstanding any other term of the Offer or the
Merger Agreement, the Purchaser 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 the Offer if, at any time on or after the date of
the Merger Agreement and before the acceptance of such Shares for payment or the
payment therefor, any of the following conditions exist (other than as a result
of any action or inaction of Parent or any of its subsidiaries which constitutes
a breach of the Merger Agreement):
(a) there shall be threatened or pending by any Governmental Entity or
any other person any suit, action or proceeding (in the case of a suit,
action or proceeding by a person other than a Governmental Entity, such
suit, action or proceeding having a reasonable likelihood of success), (i)
challenging the acquisition by the Purchaser or Parent of any Shares under
the Offer, seeking to restrain or prohibit the making or consummation of
the Offer or the Merger or any of the other transactions contemplated by
the Merger Agreement, or seeking to obtain from the Company, the Purchaser
or Parent any damages that are material in relation to the Company and its
subsidiaries taken as a whole, (ii) seeking to prohibit or limit the
ownership or operation by the Company, Parent or any of their respective
subsidiaries of a material portion of the business or assets of the Company
and its subsidiaries, taken as a whole, or Parent and its subsidiaries,
taken as a whole, or to compel the Company or Parent to dispose of or hold
separate any material portion of the business or assets of the Company and
its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken
as a whole, as a result of the Offer, the Merger or any of the other
transactions contemplated by the Merger Agreement, (iii) seeking to impose
material limitations on the ability of the Purchaser or Parent to acquire
or hold, or exercise full rights of ownership of, any Shares accepted for
payment pursuant to the Offer including, without limitation, the right to
vote such Shares on all matters properly presented to the stockholders of
the Company, (iv) seeking to prohibit Parent or any of its subsidiaries
from effectively controlling in any material respect the business or
operations of the Company or of its subsidiaries, or (v) which otherwise is
reasonably likely to have a Material Adverse Effect (as defined below);
(b) there shall be any statute, rule, regulation, legislation,
interpretation, judgment, order or injunction threatened, proposed, sought,
enacted, entered, enforced, promulgated or deemed applicable to (i) the
Parent, the Company, or any of their respective subsidiaries or (ii) the
Offer or the Merger, or any other action shall be taken by any Governmental
Entity, other than the application to the Offer or the Merger of applicable
waiting periods under the HSR Act, that is reasonably likely to result,
directly or indirectly, in any of the consequences referred to in clauses
(i) through (v) of paragraph (a) above;
(c) there shall have occurred any Material Adverse Change (as defined
below);
(d) the Board of Directors of the Company or any committee thereof
shall have withdrawn or modified in a manner adverse to the Purchaser or
Parent its approval or recommendation of the Offer, the Merger or the
Merger Agreement;
(e) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market in the United States that
continues for a period of two days (excluding any coordinated trading halt
triggered solely as a result of a specified decrease in a market index) or
(ii) a declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States;
(f) any of the representations and warranties of the Company set forth
in the Merger Agreement shall not be true and correct as of the date of the
Merger Agreement and as of any
27
<PAGE>
time thereafter through the time of the acceptance of Shares or the time of
payment therefor pursuant to the Offer as if made as of such time, taking
into account in accordance with the applicable terms of the Merger
Agreement any materiality qualifications contained in such representations
and warranties (except to the extent such representations and warranties
expressly relate to an earlier date);
(g) the Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by it under the
Merger Agreement; or
(h) the Merger Agreement shall have been terminated in accordance with
its terms.
For purposes of the Merger Agreement, the terms 'Material Adverse Change'
and 'Material Adverse Effect' mean any change, effect or circumstance (or any
development that, insofar as can reasonably be foreseen, is likely to result in
any change, effect or circumstance) that (i) is materially adverse to the
business, properties, assets, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole, (ii) would
materially impair the ability of the Company to perform its obligations under
the Merger Agreement or (iii) would prevent the consummation of the Offer, the
Merger or the other transactions contemplated by the Merger Agreement, provided
that changes resulting from automotive industry conditions or general economic
conditions shall not constitute a Material Adverse Effect or a Material Adverse
Change.
The foregoing conditions are for the sole benefit of Parent and the
Purchaser and may, subject to the terms of the Merger Agreement, be waived by
Parent and the Purchaser in whole or in part at any time and from time to time
in their sole discretion. The failure by the Purchaser or Parent at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
15. CERTAIN LEGAL MATTERS
Based on a review of publicly available filings made by the Company with
the Commission and other publicly available information concerning the Company,
neither the Purchaser nor Parent 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 the Purchaser's
acquisition of Shares as contemplated herein or of any approval or other action,
except as otherwise described in this Section 15, by any Governmental Entity
that would be required for the acquisition or ownership of Shares by the
Purchaser as contemplated herein. Should any such approval or other action be
required, the Purchaser and Parent currently contemplate that such approval or
other action will be sought, except as described below under 'State Takeover
Laws'. While, except as otherwise expressly described in this Section 15, the
Purchaser does not presently 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, the Purchaser could decline to accept
for payment or pay for any Shares tendered. See Section 14.
State Takeover Laws. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, stockholders, executive offices or places of business in such states.
Section 912 of the NYBCL purports to regulate certain business combinations
of a corporation organized under New York law having certain contacts in New
York, such as the Company, with a stockholder beneficially owning 20% or more of
the voting stock of such corporation after the date the
28
<PAGE>
relevant person or entity first becomes a 20% stockholder. Section 912 provides
that the corporation shall not engage at any time in any business combination
with such a stockholder with certain exceptions, including a business
combination approved by the board of directors of the corporation prior to the
date such stockholder became a 20% stockholder or where the purchase of stock by
such stockholder had been approved by the board of directors prior to the
stockholder acquiring 20% of the voting stock of the corporation. The Company's
Board of Directors has approved the Merger Agreement, the Stockholders Agreement
and the transactions contemplated thereby, including the Merger, and, therefore,
Section 912 of the NYBCL is inapplicable to the Merger.
Article 16 of the NYBCL also requires a bidder for shares of a New York
corporation to file a registration statement with the attorney general and
satisfy certain disclosure requirements in respect thereof. The Purchaser and
Parent have filed such a registration statement.
Based on information supplied by the Company, the Purchaser does not
believe that any state takeover statutes purport to apply to the Offer or the
Merger. Neither the Purchaser nor Parent has currently complied with any state
takeover statute or regulation. The Purchaser reserves the right to challenge
the applicability or validity of any state law purportedly applicable to the
Offer or the Merger and nothing in this Offer to Purchase or any action taken in
connection with the Offer or the Merger is intended as a waiver of such right.
If it is asserted that any state takeover statute is applicable to the Offer or
the Merger and an appropriate court does not determine that it is inapplicable
or invalid as applied to the Offer or the Merger, the Purchaser might be
required to file certain information with, or to receive approvals from, the
relevant state authorities, and the Purchaser might be unable to accept for
payment or pay for Shares tendered pursuant to the Offer, or be delayed in
consummating the Offer or the Merger. In such case, the Purchaser may not be
obligated to accept payment or pay for any Shares tendered pursuant to the
Offer.
Antitrust. Under the provisions of the HSR Act applicable to the Offer, the
purchase of Shares under the Offer may be consummated following the expiration
of a 15-calendar day waiting period following the filing by Parent of a
Notification and Report Form with respect to the Offer, unless Parent receives a
request for additional information or documentary material from the Antitrust
Division or the FTC or unless early termination of the waiting period is
granted. Parent expects to make such filing on November 15, 1994. If, within the
initial 15-day waiting period, either the Antitrust Division or the FTC requests
additional information or material from Parent concerning the Offer, the waiting
period will be extended and would expire at 11:59 p.m., New York City time, on
the tenth calendar day after the date of substantial compliance by Parent with
such request. Only one extension of the waiting period pursuant to a request for
additional information is authorized by the HSR Act. Thereafter, such waiting
period may be extended only by court order or with the consent of Parent. In
practice, complying with a request for additional information or material can
take a significant amount of time. In addition, if the Antitrust Division or the
FTC raises substantive issues in connection with a proposed transaction, the
parties frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue.
The Merger would not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company. At any time before or after the Purchaser's purchase of Shares
pursuant to the Offer, the Antitrust Division or the FTC could take such action
under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by the Purchaser 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.
Foreign Approvals. The Company has informed the Purchaser and Parent that
the Company and certain of its subsidiaries conduct business in Australia,
Mexico and the United Kingdom. Based on the
29
<PAGE>
information made available to the Purchaser and Parent by the Company concerning
these foreign operations, the Purchaser and Parent believe that no regulatory
filings or approvals are required in such countries in connection with the
consummation of the Offer, although the Purchaser and Parent may determine to
make certain voluntary filings.
16. FEES AND EXPENSES
Bessemer Partners & Co., a New York general partnership ('BP&Co.') and an
affiliate of BCP, has provided certain financial advisory services to Parent in
connection with the Offer and the Merger pursuant to a management advisory
services agreement (the 'Advisory Agreement'). The Advisory Agreement provides,
among other things, that BP&Co. shall receive an annual fee of $500,000 from
Parent for the provision of various financial advisory services. The Advisory
Agreement further provides that Parent will indemnify BP&Co. and certain of its
affiliates, employees and agents for any losses incurred in connection with
BP&Co.'s services under the Advisory Agreement and reimburse BP&Co. and such
parties for certain reasonable out-of-pocket expenses. BP&Co. and Parent have
agreed that upon consummation of the Merger the annual fee payable under this
arrangement will be increased to $850,000. Parent has also agreed to pay to
BP&Co. a one-time fee of $1,800,000 as compensation for certain financial
advisory services provided to BP&Co. in connection with the Offer and the
Merger. Such fee is only payable if the Offer and the Merger are consummated.
The Purchaser has retained MacKenzie Partners, Inc. to act as the
Information Agent and Harris Trust Company of New York to serve as the
Depositary in connection with the Offer. The Information Agent and the
Depositary each 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.
Neither the Purchaser nor Parent will pay any fees or commissions to any
broker or dealer or other person (other than the Information Agent) in
connection with the solicitation of tenders of Shares pursuant to the Offer.
Brokers, dealers, banks and trust companies will be reimbursed by the Purchaser
upon request for customary mailing and handling expenses incurred by them in
forwarding material to their customers.
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. None of the Purchaser or 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. To the extent the
Purchaser or Parent becomes aware of any state law that would limit the class of
offerees in the Offer, the Purchaser will amend the Offer and, depending on the
timing of such amendment, if any, will extend the Offer to provide adequate
dissemination of such information to holders of Shares prior to the expiration
of the Offer.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER 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.
The Purchaser or Parent has filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional
information with respect to the Offer. In addition, the Company has filed with
the Commission 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 Commission).
STANT EXPANSION CORPORATION
November 14, 1994
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SCHEDULE I
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The name, business address,
present principal occupation or employment and five-year employment history of
each of the directors and executive officers of Parent are set forth below.
Unless otherwise indicated, the business address of each such director and
executive officer is 425 Commerce Drive, Richmond, Indiana 47374. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to employment with Parent. All directors and executive officers listed
below are citizens of the United States.
<TABLE>
<CAPTION>
POSITION WITH PARENT;
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND BUSINESS ADDRESS 5-YEAR EMPLOYMENT HISTORY
- -------------------------------------------- -------------------------------------------------------------------
<S> <C>
Ward W. Woods, Jr. ........................ Chairman of the Board of Directors since 1989; sole stockholder and
630 Fifth Avenue President of La Hoya Corporation since September 1993 which is the
New York, NY 10111 managing general partner of BP&Co.; President and Chief Executive
Officer of BSC; sole stockholder and President of Quentin since
December 1989 which is the managing general partner of Kylix, the
sole general partner of BCP; sole stockholder and President of
North Hailey Corporation and Nebris Corporation since September
1993 and March 1994, respectively, the managing general
partner and a limited partner, respectively, of Kylix Holdings,
L.P. ('KH'), the general partner of Bessemer Holdings, L.P. ('BH');
sole stockholder and President of Tappan Corporation since December
1989 which is the managing general partner of Bessemer Partners,
L.P. (predecessor to BP&Co.); Director of Freeport-McMoRan Inc.,
Boise Cascade Corporation, Overhead Door Incorporated, BCP/Essex
Holdings Inc., Essex Group Inc. and several private companies.
David R. Paridy ............................ Director and Chief Executive Officer since 1987.
Thomas F. Plocinik ........................ Senior Vice President -- Finance since 1991; from 1989 to 1991 held
executive positions at Standard-Thomson.
Robert W. Priebe .......................... Senior Vice President -- International since June 1994; from 1991
to June 1994 was Senior Vice President -- Original Equipment Sales
and International; from 1990 to 1991 was Vice President for
Corporate Development of the predecessor company of Parent; from
1988 to 1989 was Executive Vice President and General Manager of
Standard-Thomson.
Anthony W. Graziano, Jr. ................... Vice President, General Counsel and Secretary since October 1994;
from April 1993 to June 1994 was Executive Vice President and
General Counsel of Triarc Companies, Inc.; from its formation in
January 1989 to April 1993 was Senior Vice President -- Legal
Affairs of Trian Group, Limited Partnership; from September 1985 to
January 1989 was Senior Vice President -- Legal Affairs of Triangle
Industries, Inc.
W. Thomas Margetts ........................ Senior Vice President -- Corporate Development since October 1994;
from 1991 to October 1994 was Senior Vice President -- Human
Resources and Legal; from July 1993 to October 1994 was Secretary;
from 1987 to 1991 was Vice President -- Administration and General
Counsel of the predecessor company of Parent.
Marvin E. Whetter ......................... Senior Vice President -- Aftermarket Sales and Marketing since
January 1993; from October 1991 to January 1993 was Vice
President -- Aftermarket Sales; from 1988 to 1991 held similar
positions at Epicor and its predecessor company.
</TABLE>
31
<PAGE>
<TABLE>
<CAPTION>
POSITION WITH PARENT;
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND BUSINESS ADDRESS 5-YEAR EMPLOYMENT HISTORY
- -------------------------------------------- -------------------------------------------------------------------
<S> <C>
Robert D. Lindsay .......................... Director since 1991; from July 1991 to June 1993 was Vice President
630 Fifth Avenue of the predecessor company of Parent; sole stockholder and
New York, NY 10111 President of Pierpole Corporation since September 1993 which is a
general partner of BP&Co.; sole stockholder and President of
Belisarius since January 1991 which is a general partner of Kylix,
the sole general partner of BCP; sole stockholder and President of
Demarest Corporation and Old Hundred Corporation since September
1993 and March 1994, respectively, a general partner and limited
partner, respectively, of KH which is the sole general partner of
BH; sole stockholder and President since January 1991 of Shattuck
Corporation which is a general partner of Bessemer Partners, L.P.
(the predecessor to BP&Co.); from January 1991 to June 1993 was a
Managing Director of BSC; from January 1990 to January 1991 was a
Managing Director at Morgan Stanley & Co. Incorporated ('Morgan
Stanley'); prior to January 1990 was a Principal at Morgan Stanley;
Director of BCP/Essex Holdings Inc., Essex Group, Inc., InterMetro
Industries Corporation and several other private companies.
Thomas E. Schmitt .......................... Treasurer since July 1993; from 1991 to July 1993 served as
Corporate Tax Manager; prior to 1991 was Senior Tax Manager with
the Indianapolis office of Coopers & Lybrand.
Paul A. Cameron ............................ Director since 1987.
Edward O. Gaylord .......................... Director; Chairman of EOTT Energy Corp. since January 1993;
operates Gaylord & Company; Director of Imperial Holly Corporation
and Seneca Foods Corporation and a trustee of MD Anderson Hospital
and Baylor College of Medicine.
Ogden Mills Phipps ......................... Director; Chairman of the Board of BSC, Bessemer Group,
630 Fifth Avenue Incorporated ('BGI'); Bessemer Trust Company, N.A. ('BTNA') and
New York, NY 10111 Bessemer Trust Company ('BTC').
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name, business
address, present principal occupation or employment and five-year employment
history of each of the directors and executive officers of the Purchaser are set
forth below. The business address of each such director and executive officer is
425 Commerce Drive, Richmond, Indiana 47374. All directors and executive
officers listed below are citizens of the United States.
<TABLE>
<CAPTION>
POSITION WITH PURCHASER;
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME 5-YEAR EMPLOYMENT HISTORY
- -------------------------------------------- -------------------------------------------------------------------
<S> <C>
David R. Paridy ............................ President and Director; see also Item 1 of this Schedule I.
Thomas F. Plocinik ......................... Senior Vice President -- Finance and Director; see also Item 1 of
this Schedule I.
Anthony W. Graziano, Jr. ................... Vice President, General Counsel and Secretary and Director; see
also Item 1 of this Schedule I.
Thomas E. Schmitt ......................... Treasurer; see also Item 1 of this Schedule I.
</TABLE>
32
<PAGE>
SCHEDULE II
1. CONTROLLING PERSONS OF KYLIX AND DIRECTORS AND EXECUTIVE OFFICERS OF
QUENTIN, BELISARIUS AND EAST HARBOR. The name, business address, present
principal occupation or employment and five-year employment history of each of
the controlling persons of Kylix and directors and executive officers of
Quentin, Belisarius and East Harbor are set forth below. The business address of
each such person is 630 Fifth Avenue, New York, New York 10111. All persons
listed below are citizens of the United States.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME 5-YEAR EMPLOYMENT HISTORY
- -------------------------------------------- -------------------------------------------------------------------
<S> <C>
Ward W. Woods, Jr. ......................... See Item 1 of Schedule I.
Robert D. Lindsay .......................... See Item 1 of Schedule I.
Michael B. Rothfeld ........................ Sole stockholder and President of Northwest Harbor Corporation
since September 1993 which is a general partner of BP&Co.; sole
stockholder and President of East Harbor since December 1989 which
is a general partner of Kylix, the sole general partner of BCP;
sole stockholder and President of North Harbor Corporation and Race
Rock Corporation since September 1993 and March 1994, respectively,
a general partner and limited partner, respectively, of KH which is
the general partner of BH; sole stockholder and President since
December 1989 of West Harbor Corporation which is a general partner
of Bessemer Partners, L.P. (BP&Co.'s predecessor); Managing
Director of BSC from June 1989 to June 1993; Director of Overhead
Door Incorporated and several other private companies.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF BSC. The name, business address,
present principal occupation or employment and five-year employment history of
each of the directors and executive officers of BSC are set forth below. Unless
otherwise indicated, the business address of each such director and executive
officer is 630 Fifth Avenue, New York, New York 10111. All directors and
executive officers listed below are citizens of the United States.
<TABLE>
<CAPTION>
POSITION WITH BSC;
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME 5-YEAR EMPLOYMENT HISTORY
- -------------------------------------------- -------------------------------------------------------------------
<S> <C>
Ogden Mills Phipps ......................... See Item 1 of Schedule I.
Richard L. Gelb ............................ Director of BSC; Chairman of the Board of Bristol-Myers Squibb
Bristol-Myers Squibb Company Company.
345 Park Avenue
New York, New York 10154
Raymond R. Guest, Jr. ...................... Director of BSC, BGI, BTNA and BTC; Vice Chairman of the Board of
P.O. Box 147 BSC; Member of the Virginia House of Delegates.
Front Royal, Virginia 22630
Stuart S. Janney, III ...................... Director of BSC; Managing Director, Alex. Brown & Sons
Brown Asset Management Incorporated.
19-21 South Street
P.O. Box 515
Baltimore, Maryland 21203
Dorothy B. Moore ........................... Director of BSC, BGI, BTNA and BTC.
John A. Moran .............................. Director of BSC; Chairman of the Board of The Dyson- Kissner-Moran
The Dyson-Kissner-Moran Corporation.
Corporation
230 Park Avenue, Suite 659
New York, New York 10169
</TABLE>
33
<PAGE>
<TABLE>
<S> <C>
George D. Phipps ........................... Director of BSC, BGI, BTNA and BTC; Associate, Patricof & Co.
Patricof & Co. Ventures, Inc. Ventures, Inc. since 1993; Investment Officer, Czech & Slovak
445 Park Avenue American Enterprise Fund from July 1991 to September 1992; student,
New York, New York 10022 Stanford University Graduate School of Business from September 1989
to June 1991.
Howard Phipps, Jr. ........................ Director of BSC, BGI, BTNA and BTC; President of The New York
Zoological Society.
John E. Phipps ............................. Director of BSC, BGI, BTNA and BTC; Chairman and Chief Executive
P.O. Box 3048 Officer of John H. Phipps, Inc.
Tallahassee, Florida 32315
Rueben F. Richards ......................... Director of BSC; Chairman of Minorco (U.S.A.) Inc. ('Minorco')
250 Park Avenue since May 1990; President and Chief Executive Officer of Minorco
New York, New York 10177 since February 1994; Chairman of Terra Industries Inc. ('Terra')
prior to 1989; President and Chief Executive Officer of Terra prior
to May 1991.
John R. Whitmore .......................... Director of BSC; President and Chief Executive Officer and Director
of BGI, BTNA and BTC.
Ward W. Woods, Jr. ......................... See Item 1 of Schedule I.
Richard R. Davis ........................... Senior Vice President, Secretary and General Counsel of BSC since
January 1992; from September 1991 to January 1992 was Senior Vice
President of BSC; Senior Vice President, Secretary and General
Counsel of BGI, BTNA and BTC since January 1992; from September
1991 to January 1992 was Senior Vice President of BGI, BTNA and
BTC; prior to September 1991 was Senior Vice President and General
Counsel of Inspiration Resources Corporation.
Patrick J. Waide, Jr. ...................... Senior Vice President and Chief Financial Officer of BSC; Executive
Vice President of BGI, BTNA and BTC.
</TABLE>
34
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates of Shares and any other
required documents should be sent or delivered by each stockholder of the
Company or such stockholder's broker, dealer, bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
By Hand By Overnight Courier: By Mail:
Receive Window 77 Water Street, 4th Floor Wall Street Station
77 Water Street, 5th Floor New York, NY 10005 P.O. Box 1023
New York, NY 10005 New York, NY 10268-1023
By Facsimile:
(212) 701-7636
(212) 701-7640
Confirm by telephone:
(212) 701-7624
</TABLE>
Questions and requests for assistance or for additional copies of this
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. You may also contact your broker, dealer, bank, trust
company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
MACKENZIE PARTNERS
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll Free (800) 322-2885
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
TRICO PRODUCTS CORPORATION
PURSUANT TO THE OFFER TO PURCHASE DATED NOVEMBER 14, 1994
BY
STANT EXPANSION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
STANT CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, DECEMBER 12, 1994, UNLESS EXTENDED.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
By Hand By Overnight Courier By Mail:
Receive Window 77 Water Street, 4th Floor Wall Street Station
77 Water Street, 5th Floor New York, NY 10005 P.O. Box 1023
New York, NY 10005 New York, NY 10268- 1023
By Facsimile:
(212) 701-7636
(212) 701-7640
Confirm by telephone:
(212) 701-7624
</TABLE>
------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used either if certificates are to be
forwarded herewith or if delivery of Shares (as defined below) is to be made by
book-entry transfer to an account maintained by the Depositary at The Depository
Trust Company, the Midwest Securities Trust Company or the Philadelphia
Depository Trust Company (each, a 'Book-Entity Transfer Facility') pursuant to
the procedures set forth in Section 2 of the Offer to Purchase. Stockholders who
deliver Shares by book-entry transfer are referred to herein as 'Book-Entry
Stockholders' and other stockholders are referred to herein as 'Certificate
Stockholders'. Stockholders whose certificates for Shares are not immediately
available or who cannot deliver either the certificates for, or a Book-Entry
Confirmation (as defined in Section 2 of the Offer to Purchase) with respect to,
their Shares and all other documents required hereby to the Depositary prior to
the Expiration Date (as defined in Section 1 of the Offer to Purchase) must
tender their Shares in accordance with the guaranteed delivery procedures set
forth in Section 2 of the Offer to Purchase. See Instruction 2.
<PAGE>
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A
BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution __________________________________________
Check Box of Book-Entry Transfer Facility:
[ ] The Depository Trust Company
[ ] Midwest Securities Trust Company
[ ] Philadelphia Depository Trust Company
Account Number _________________________________________________________
Transaction Code Number ________________________________________________
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Owner(s) _________________________________________
Window Ticket Number (if any) __________________________________________
Date of Execution of Notice of Guaranteed Delivery _____________________
Name of Institution that Guaranteed Delivery ___________________________
If delivered by Book-Entry Transfer check box of Book-Entry Transfer
Facility:
[ ] The Depository Trust Company
[ ] Midwest Securities Trust Company
[ ] Philadelphia Depository Trust Company
Account Number _________________________________________________________
Transaction Code Number ________________________________________________
<TABLE>
<S> <C> <C> <C>
DESCRIPTION OF SHARES TENDERED
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
APPEAR(S) ON CERTIFICATE(S))
TOTAL NUMBER OF
SHARES NUMBER OF
CERTIFICATE REPRESENTED SHARES
NUMBER(S)(1) BY CERTIFICATE(S)(1) TENDERED(2)
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
(1) Need not be completed by Book-Entry Stockholders.
(2) Unless otherwise indicated, it will be assumed that all Shares described above are being tendered. See
Instruction 4.
</TABLE>
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Stant Expansion Corporation, a New York
corporation (the 'Purchaser') and a wholly owned subsidiary of Stant
Corporation, a Delaware corporation ('Parent'), the above-described shares of
common stock, no par value (the 'Shares'), of Trico Products Corporation, a New
York corporation (the 'Company'), pursuant to the Purchaser's offer to purchase
all outstanding Shares at a price of $85.00 per Share, net to the seller in
cash, in accordance with the terms and conditions of the Purchaser's Offer to
Purchase dated November 14, 1994 (the 'Offer to Purchase'), and this Letter of
Transmittal (which, together with any amendments or supplements thereto or
hereto, collectively constitute the 'Offer'), receipt of which is hereby
acknowledged.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer (including, if the Offer is extended or amended, the terms or
conditions of any such extension or amendment), the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Purchaser all right, title
and interest in and to all the Shares that are being tendered hereby (and any
and all other Shares or other securities or rights issued or issuable in respect
of such Shares on or after November 8, 1994) and irrevocably constitutes and
appoints the Depositary the true and lawful agent and attorney-in-fact of the
undersigned with respect to such Shares (and any such other Shares or securities
or rights), with full power of substitution (such power of attorney being deemed
to be an irrevocable power coupled with an interest), to (a) deliver
certificates for such Shares (and any such other Shares or securities or rights)
or transfer ownership of such Shares (and any such other Shares or securities or
rights) on the account books maintained by a Book-Entry Transfer Facility
together, in any such case, with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Purchaser, (b) present such Shares
(and any such other Shares or securities or rights) for transfer on the
Company's books and (c) receive all benefits and otherwise exercise all rights
of beneficial ownership of such Shares (and any such other Shares or securities
or rights), all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the tendered
Shares (and any and all Shares or other securities or rights issued or issuable
in respect of such Shares on or after November 8, 1994), the tender of the
tendered Shares complies with Rule 14e-4 under the Securities and Exchange Act
of 1934, as amended, and, when the same are accepted for payment by the
Purchaser, the Purchaser will acquire good title thereto, free and clear of all
liens, restrictions, claims and encumbrances. The undersigned will, upon
request, execute any additional documents deemed by the Depositary or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the tendered Shares (and any such other Shares or other securities
or rights).
All authority conferred or agreed to be conferred pursuant to this Letter
of Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators, trustees in bankruptcy and legal representatives of the
undersigned and shall not be affected by, and shall survive, the death or
incapacity of the undersigned. Except as stated in the Offer to Purchase, this
tender is irrevocable.
The undersigned hereby irrevocably appoints David R. Paridy, Thomas F.
Plocinik and Anthony W. Graziano, Jr., in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them, and any other designees of the Purchaser,
the attorneys-in-fact and proxies of the undersigned, each with full power of
substitution, to vote at any annual, special or adjourned meeting of the
Company's stockholders or otherwise in such manner as each such attorney and
proxy or his substitute shall in his sole discretion deem proper with respect
to, to execute any written consent concerning any matter as each such attorney
and proxy or his substitute shall in his sole discretion deem proper with
respect to, and to otherwise act as each such attorney and proxy or his
substitute shall in his sole discretion deem proper with respect to, all the
Shares tendered hereby that have been accepted for payment by the Purchaser
prior to the time any such action is taken and with respect to which the
undersigned is entitled to vote (and with respect to any and all other Shares or
other securities or rights issued or issuable in respect of such Shares on or
after November 8, 1994). This appointment is effective when, and only to the
extent that, the Purchaser accepts for payment such Shares as provided in the
Offer to Purchase. This power of attorney and proxy are irrevocable and are
granted in consideration of the acceptance for payment of such Shares in
accordance with the terms of the Offer. Such acceptance for payment shall,
without further action, revoke all prior powers of attorney and proxies
appointed by the undersigned at any time with respect to such Shares (and any
such other Shares or securities or rights) and no
<PAGE>
subsequent powers of attorney or proxies will be appointed by the undersigned,
or be effective, with respect thereto.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in Section 2 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under 'Special Payment Instructions',
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or accepted for payment in the name(s) of the registered
holder(s) appearing under 'Description of Shares Tendered'. Similarly, unless
otherwise indicated under 'Special Delivery Instructions', please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under 'Description of Shares
Tendered'. In the event that both the Special Delivery Instructions and the
Special Payment Instructions are completed, please issue the check for the
purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and any accompanying documents, as appropriate) in the
name of, and deliver such check and/or return such certificates (and any
accompanying documents, as appropriate) to, the person or persons so indicated.
The undersigned recognizes that the Purchaser has no obligation pursuant to the
Special Payment Instructions to transfer any Shares from the name of the
registered holder thereof if the Purchaser does not accept for payment any of
the Shares so tendered.
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not accepted
for payment and/or the check for the purchase price of Shares accepted for
payment are to be issued in the name of someone other than the undersigned, or
if Shares delivered by book-entry transfer that are not accepted for payment
are to be returned by credit to an account maintained at a Book-Entry Transfer
Facility other than the account indicated above.
Issue check and/or certificate(s) to:
Name: ________________________________________________________________________
(PLEASE PRINT)
Address: _____________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(INCLUDE ZIP CODE)
______________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not accepted
for payment and/or the check for the purchase price of Shares accepted for
payment are to be sent to someone other than the undersigned or to the
undersigned at an address other than that indicated above.
Mail check and/or certificate(s) to:
Name: ________________________________________________________________________
(PLEASE PRINT)
Address: _____________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(INCLUDE ZIP CODE)
<PAGE>
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
________________________________________________________________________________
________________________________________________________________________________
(SIGNATURE(S) OF STOCKHOLDER(S))
Dated: ______________, 1994
(Must be signed by registered holder(s) as name(s) appear(s) on the
certificate(s) for the Shares or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, please provide the following information
and see Instruction 5.)
Name(s) ________________________________________________________________________
(PLEASE PRINT)
Capacity (Full Title) __________________________________________________________
Address ________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No. ____________________________________________________
Taxpayer Identification or Social Security No. _________________________________
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5)
Authorized Signature ___________________________________________________________
Name ___________________________________________________________________________
(PLEASE PRINT)
Name of Firm ___________________________________________________________________
Address ________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No. ____________________________________________________
Dated: ___________________________________________________________________, 1994
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURE. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including most banks, savings and loans associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion Program
or the New York Stock Exchange Medallion Signature Guarantee Program or the
Stock Exchange Medallion Program (an Eligible Institution). No signature
guarantee is required on this Letter of Transmittal (a) if this Letter of
Transmittal is signed by the registered holder(s) (which term, for purposes of
this document, shall include any participant in a Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Shares) of
Shares tendered herewith, unless such holder(s) has completed either the box
entitled 'Special Delivery Instructions' or the box entitled 'Special Payment
Instructions' on the reverse hereof, or (b) if such Shares are tendered for the
account of an Eligible Institution. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
stockholders either if certificates are to be forwarded herewith or if delivery
of Shares is to be made pursuant to the procedures for book-entry transfer set
forth in Section 2 of the Offer to Purchase. For a stockholder validly to tender
Shares pursuant to the Offer, either (a) a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), together with any required
signature guarantees and any other required documents, must be received by the
Depositary at one of its addresses set forth herein prior to the Expiration Date
and either (i) certificates for tendered Shares must be received by the
Depositary at one of such addresses prior to the Expiration Date or (ii) Shares
must be delivered pursuant to the procedures for book-entry transfer set forth
herein and a Book-Entry Confirmation must be received by the Depositary prior to
the Expiration Date or (b) the tendering stockholder must comply with the
guaranteed delivery procedures set forth below and in Section 2 of the Offer to
Purchase.
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase.
Pursuant to such procedures, (a) such tender must be made by or through an
Eligible Institution, (b) a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form provided by the Purchaser must be
received by the Depositary prior to the Expiration Date and (c) the certificates
for all physically delivered Shares or a Book-Entry Confirmation with respect to
all tendered Shares, as well as a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Depositary within five Nasdaq National Market trading days after the date of
execution of the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF SHARES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. 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.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE STOCKHOLDERS ONLY). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares that are to be tendered in the box entitled 'Number
of Shares Tendered'. In any such case, new certificate(s) for the remainder of
the Shares that were evidenced by the old certificate(s) will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal as soon as practicable after the expiration of the Offer.
All Shares represented by certificates delivered to the Depositary will be
deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTERS OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the certificate(s) without any change whatsoever.
<PAGE>
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to the Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered holder(s) of
the Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to or
certificates for Shares not tendered or accepted for payment are to be issued to
a person other than the registered holder(s). Signatures on such certificates or
stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of certificates listed, the certificates must be endorsed
or accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner or owners appear on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or if
certificates for Shares not tendered or accepted for payment are to be
registered in the name of, any persons other than the registered holder(s), or
if tendered certificates are registered in the name of any person other than the
person(s) signing this Letter of Transmittal, the amount of any stock transfer
taxes (whether imposed on the registered holder(s) or such person) payable on
account of the transfer to such person will be deducted from the purchase price
unless satisfactory evidence of the payment of such taxes or exemption therefrom
is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of and/or certificates for Shares not tendered or not accepted for
payment are to be returned to, a person other than the signer of this Letter of
Transmittal or if a check is to be sent and/or such certificates are to be
returned to a person other than the signer of this Letter of Transmittal or to
an address other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed. Any stockholder(s) delivering Shares by
book-entry transfer may request that Shares not accepted for payment be credited
to such account maintained at a Book-Entry Transfer Facility as such
stockholder(s) may designate.
8. WAIVER OF CONDITIONS. Subject to the terms of the Offer, the Purchaser
reserves the absolute right in its sole discretion to waive any of the specified
conditions of the Offer, in whole or in part, in the case of any Shares
tendered.
9. 31% BACKUP WITHHOLDING. Under U.S. Federal income tax law, a stockholder
whose tendered Shares are accepted for payment is required to provide the
Depositary with such stockholder's correct taxpayer identification number
('TIN') (i.e., social security number or employer identification number) on
Substitute Form W-9 below. If the Depositary is not provided with the correct
TIN, the Internal Revenue Service may subject the stockholder or other payee to
a $50 penalty. In addition, payments that are made to such stockholder or other
payee with respect to Shares purchased pursuant to the Offer may be subject to a
31% backup withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the stockholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Depositary. See the enclosed 'Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9' for more instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any such payments made to the stockholder or other payee. Backup withholding
is not an additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld, provided that the
required information is given to the Internal Revenue Service. If withholding
results in an overpayment of taxes a refund may be obtained from the Internal
Revenue Service.
<PAGE>
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering stockholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked,
the stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
The stockholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares or of the last transferee appearing on the transfers attached to, or
endorsed on, the Shares. If the Shares are in more than one name or are not in
the name of the actual owner, consult the enclosed 'Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9' for additional
guidance on which number to report.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for additional
copies of the Offer to Purchase, this Letter of Transmittal, the Notice of
Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 should be directed to the
Information Agent at its address set forth below. Questions or requests for
assistance may be directed to the Information Agent.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE COPY THEREOF (TOGETHER
WITH CERTIFICATES FOR, OR A BOOK-ENTRY CONFIRMATION WITH RESPECT TO, TENDERED
SHARES WITH ANY REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS)
MUST BE RECEIVED BY THE DEPOSITARY, OR THE NOTICE OF GUARANTEED DELIVERY MUST BE
RECEIVED BY THE DEPOSITARY, PRIOR TO THE EXPIRATION DATE.
<TABLE>
<S> <C> <C> <C>
PAYER'S NAME: HARRIS TRUST COMPANY OF NEW YORK
PART 1 -- PLEASE PROVIDE YOUR TIN IN SOCIAL SECURITY NUMBER
THE BOX AT RIGHT AND CERTIFY BY EMPLOYER IDENTIFICATION NUMBER
SIGNING AND DATING BELOW OR
SUBSTITUTE
PART 2 -- CERTIFICATES -- Under penalties of perjury, I certify that:
FORM W-9 (1) The number shown on this form is my correct Taxpayer Identification Number (or I
DEPARTMENT OF THE TREASURY am waiting for a number to be issued for me) and
INTERNAL REVENUE SERVICE (2) I am not subject to backup withholding either because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal Revenue Service
(the 'IRS') that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because
of underreporting interest or dividends on your tax return. However, if after
being notified by the IRS that you are subject to backup withholding, you
received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out such item (2).
PAYER'S REQUEST FOR TAXPAYER PART 3 --
IDENTIFICATION NUMBER ('TIN') SIGNATURE DATE Awaiting TIN [ ]
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO
YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
</TABLE>
<PAGE>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (2) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, 31% of all
reportable payments made to me will be withheld, but that such amounts will be
refunded to me if I then provide a Taxpayer Identification Number within sixty
(60) days.
Signature __________________________________________ Date _____________________
Questions and requests for assistance or additional copies of the Offer to
Purchase, this Letter of Transmittal and other tender offer materials may be
directed to the Information Agent as set forth below.
THE INFORMATION AGENT FOR THE OFFER IS:
MACKENZIE PARTNERS
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll Free (800) 322-2885
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
TRICO PRODUCTS CORPORATION
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates representing shares of common stock, no par value
(the 'Shares'), of Trico Products Corporation, a New York corporation (the
'Company'), are not immediately available or if the procedures for book-entry
transfer cannot be completed on a timely basis or time will not permit all
required documents to reach the Depositary prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase). Such form may be delivered by
hand or transmitted by telegram or facsimile transmission or mailed to the
Depositary and must include a guarantee by an Eligible Institution (as defined
in Section 2 of the Offer to Purchase). See Section 2 of the Offer to Purchase.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
By Hand: By Overnight Courier By Mail:
Receive Window 77 Water Street, 4th Floor Wall Street Station
77 Water Street, 5th Floor New York, NY 10005 P.O. Box 1023
New York, NY 10005 New York, NY 10268-1023
By Facsimile:
(212) 701-7636
(212) 701-7640
Confirm by Telephone:
(212) 701-7624
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a Letter
of Transmittal is required to be guaranteed by an Eligible Institution under the
instructions thereto, such signature guarantee must appear in the applicable
space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Stant Expansion Corporation, a New York
corporation (the 'Purchaser') and a wholly owned subsidiary of Stant
Corporation, a Delaware corporation, upon the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase dated November 14,
1994 (the 'Offer to Purchase'), and in the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
'Offer'), receipt of which is hereby acknowledged, Shares pursuant to the
guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase.
Number of Shares: ______________________________________________________________
Certificate Nos. (if available): _______________________________________________
________________________________________________________________________________
Check ONE box if Shares will be tendered by book-entry transfer:
[ ] The Depository Trust Company
[ ] Midwest Securities Trust Company
[ ] Philadelphia Depository Trust Company
Account Number: ________________________________________________________________
Dated: _________________________________________________________________________
Name(s) of Record Holder(s):
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Address(es): ___________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
Area Code and Tel. No.: ________________________________________________________
Signature(s): __________________________________________________________________
________________________________________________________________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agent's Medallion
Program or the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program hereby (a) represents that the tender of
Shares effected hereby complies with Rule 14e-4 under the Securities Exchange
Act of 1934, as amended, and (b) guarantees to deliver to the Depositary either
the certificates representing the Shares tendered hereby, in proper form for
transfer, or a Book-Entry Confirmation (as defined in Section 2 of the Offer to
Purchase) of a transfer of such Shares, in any such case together with a
properly completed and duly executed Letter of Transmittal, or a manually signed
facsimile thereof, with any required signature guarantees, and any other
documents required by the Letter of Transmittal within five New York Stock
Exchange, Inc. trading days after the date hereof.
Name of Firm: __________________________________________________________________
Address: _______________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
Area Code and Tel. No. _________________________________________________________
________________________________________________________________________________
(AUTHORIZED SIGNATURE)
Title: _________________________________________________________________________
Date: __________________________________________________________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. SHARE
CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
MACKENZIE PARTNERS
156 FIFTH AVENUE
NEW YORK, NEW YORK 10010
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TRICO PRODUCTS CORPORATION
AT
$85.00 NET PER SHARE
BY
STANT EXPANSION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
STANT CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, DECEMBER 12, 1994, UNLESS EXTENDED.
November 14, 1994
TO BROKERS, DEALERS, BANKS,
TRUST COMPANIES AND OTHER NOMINEES:
We have been appointed by Stant Expansion Corporation, a New York
corporation (the Purchaser') and a wholly owned subsidiary of Stant Corporation,
a Delaware corporation ('Parent'), to act as Information Agent in connection
with the Purchaser's offer to purchase all outstanding shares of common stock,
no par value (the 'Shares'), of Trico Products Corporation, a New York
corporation (the 'Company'), at $85.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Purchaser's Offer
to Purchase dated November 14, 1994 (the 'Offer to Purchase'), and the related
Letter of Transmittal (which, together with any supplements or amendments
thereto, collectively constitute the 'Offer').
Please furnish copies of the enclosed materials to those of your clients
for whom you hold Shares registered in your name or in the name of your nominee.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase;
2. Letter of Transmittal to be used by stockholders of the Company
accepting the Offer;
3. The Letter to Stockholders of the Company from the President and
Chief Executive Officer of the Company accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9;
4. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with
space provided for obtaining such client's instructions with regard to the
Offer;
5. Notice of Guaranteed Delivery;
<PAGE>
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE OFFER
AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON
MONDAY, DECEMBER 12, 1994, UNLESS EXTENDED.
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer that number of
Shares which would represent at least two-thirds of all outstanding Shares.
The Board of Directors of the Company has, by unanimous vote, approved the
Offer and the Merger (as defined below) and determined that the terms of the
Offer and the Merger are fair to, and in the best interests of, the stockholders
of the Company and recommends that stockholders of the Company accept the Offer
and tender their Shares.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of November 8, 1994 (the 'Merger Agreement'), among Parent, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, with the Company surviving the merger as a wholly owned
subsidiary of Parent (the 'Merger'). In the Merger, each outstanding Share
(other than Shares held by the Company as treasury stock or owned by any
subsidiary of the Company, Parent, the Purchaser or any other subsidiary of
Parent or by stockholders, if any, who are entitled to and who properly exercise
dissenters' rights under New York law) will be converted into the right to
receive $85.00 per Share, without interest, as set forth in the Merger Agreement
and described in the Offer to Purchase.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of certificates for
such Shares (or timely Book-Entry Confirmation of a transfer of such Shares as
described in Section 2 of the Offer to Purchase), a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) and any other documents
required by the Letter of Transmittal.
Neither the Purchaser nor Parent will pay any fees or commissions to any
broker or dealer or other person (other than as described in Section 16 of the
Offer to Purchase) in connection with the solicitation of tenders of Shares
pursuant to the Offer. You will be reimbursed upon request for customary mailing
and handling expenses incurred by you in forwarding the enclosed offering
materials to your customers.
Questions and requests for additional copies of the enclosed material may
be directed to the undersigned at its address and telephone number set forth on
the back cover of the enclosed Offer to Purchase.
Very truly yours,
MacKenzie Partners, Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, PARENT, THE DEPOSITARY OR THE
INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM OR AUTHORIZE YOU OR ANY OTHER
PERSON TO GIVE ANY INFORMATION OR USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON
BEHALF OF ANY OF THEM WITH RESPECT TO THE OFFER OTHER THAN THE ENCLOSED
DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
2
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TRICO PRODUCTS CORPORATION
AT
$85.00 NET PER SHARE
BY
STANT EXPANSION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
STANT CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, DECEMBER 12, 1994, UNLESS EXTENDED.
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated November 14,
1994 (the 'Offer to Purchase'), and a related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
'Offer') relating to an offer by Stant Expansion Corporation, a New York
corporation (the 'Purchaser') and a wholly owned subsidiary of Stant
Corporation, a Delaware corporation ('Parent'), to purchase shares of Common
Stock, no par value (the 'Shares'), of Trico Products Corporation, a New York
corporation (the 'Company'), at $85.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer. Also
enclosed is the Letter to Stockholders of the Company from the Chairman and
Chief Executive Officer of the Company accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
We request instructions as to whether you wish to tender any of or all the
Shares held by us for your account, pursuant to the terms and conditions set
forth in the Offer.
Your attention is invited to the following:
1. The tender price is $85.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer.
2. The Board of Directors of the Company has, by unanimous vote,
approved the Offer and the Merger (as defined below) and determined that
the terms of the Offer and the Merger are fair to, and in the best
interests of, the stockholders of the Company and recommends that the
stockholders of the Company accept the Offer and tender their Shares.
3. The Offer is being made for all outstanding Shares.
4. The Offer is being made pursuant to the Agreement and Plan of
Merger dated as of November 8, 1994 (the 'Merger Agreement'), among Parent,
the Purchaser and the Company pursuant to which, following the consummation
of the Offer and the satisfaction or waiver of certain conditions, the
Purchaser will be merged with and into the Company, with the Company
surviving the merger as a wholly owned subsidiary of Parent (the 'Merger').
In the Merger, each outstanding Share (other than Shares held by the
Company as treasury stock or owned by any subsidiary of the Company,
Parent, the Purchaser or any other subsidiary of Parent or by stockholders,
if any, who are entitled to and who properly exercise dissenters' rights
under New York law) will be converted into the right to receive $85.00 per
Share, without interest, as set forth in the Merger Agreement and described
in the Offer to Purchase.
5. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the expiration of the Offer
that number of Shares which, together with the Shares subject to the
Stockholders Agreement referred to in the Offer to Purchase that shall not
have been so tendered, would represent at least two-thirds of all
outstanding Shares.
6. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on Monday, December 12, 1994, unless the Offer is extended
by the Purchaser. In all cases, payment
<PAGE>
for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of certificates for such Shares (or
timely Book-Entry Confirmation of a transfer of such Shares as described in
Section 2 of the Offer to Purchase), a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) and any other documents
required by the Letter of Transmittal.
7. The Purchaser will pay any stock transfer taxes with respect to the
transfer and sale of Shares to it or its order pursuant to the Offer,
except as otherwise provided in Instruction 6 of the Letter of Transmittal.
If you wish to have us tender any of or all your Shares, please so instruct
us by completing, executing, detaching and returning to us the instruction form
set forth below. An envelope to return your instructions to us is enclosed. If
you authorize tender of your Shares, all such Shares will be tendered unless
otherwise specified below. Your instructions to us should be forwarded promptly
to permit us to submit a tender on your behalf prior to the expiration of the
Offer.
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 or
acceptance of the Offer would not be in compliance with the laws of such
jurisdiction.
TEAR HERE TEAR HERE
- --------------------------------------------------------------------------------
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE
ALL OUTSTANDING SHARES OF COMMON STOCK OF
TRICO PRODUCTS CORPORATION
The undersigned acknowledges receipt of your letter enclosing the Offer to
Purchase dated November 14, 1994, of Stant Expansion Corporation, a New York
corporation and a wholly owned subsidiary of Stant Corporation, a Delaware
corporation, and the related Letter of Transmittal, relating to shares of Common
Stock, no par value (the 'Shares'), of Trico Products Corporation, a New York
corporation.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned on the terms and conditions set forth
in such Offer to Purchase and the related Letter of Transmittal.
<TABLE>
<S> <C>
Dated: 1994
Number of Shares
to be Tendered*
Shares
----------------------------------------------------
(SIGNATURE(S))
----------------------------------------------------
----------------------------------------------------
PLEASE PRINT NAME(S)
----------------------------------------------------
Address ------------------------------------------
----------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and
Telephone No. -----------------------------------
Taxpayer Identification
or Social Security No. --------------------------
----------------------------------------------------
</TABLE>
- ------------
* Unless otherwise indicated, it will be assumed that all your Shares are
to be tendered.
<PAGE>
- --------------------------------------------------------------------------------
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
<S> <C>
FOR THIS TYPE OF GIVE THE SOCIAL
ACCOUNT: SECURITY NUMBER OF:
<CAPTION>
<S> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner of the
(joint account) account or, if combined funds,
any one of the individuals(1)
3. Husband and wife (joint The actual owner of the
account) account or, if joint funds,
either person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if the minor is
account) the only contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee for a incompetent person(3)
designated ward, minor, or
incompetent person
7. a The usual revocable The grantor-trustee(1)
savings trust account
(grantor is also trustee)
b So-called trust account The actual owner(4)
that is not a legal or
valid trust under State law
8. Sole proprietorship account The owner(4)
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
GIVE THE EMPLOYER
FOR THIS TYPE OF INDENTIFICATION
ACCOUNT: NUMBER OF:
<CAPTION>
<S> <C>
9. A valid trust, estate or The legal entity (Do not
pension trust furnish the identifying number
of the personal representative
or trustee unless the legal
entity itself is not
designated in the account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held The partnership
in the name of the
business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or nominee
nominee
15. Account with the The public entity
Department of Agriculture
in the name of a public
entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payments
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL BE
CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
A corporation.
A financial institution.
An organization exempt from tax under section 501(a), or an
individual retirement plan.
The United States or any agency or instrumentality thereof.
A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
An international organization or any agency, or instrumentality thereof.
A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
A real estate investment trust.
A common trust fund operated by a bank under section 584(a).
An exempt charitable remainder trust, or a non-exempt trust described in section
4947(a)(1).
An entity registered at all times under the Investment Company Act of 1940.
A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
Payments to nonresident aliens subject to withholding under section 1441.
Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
Payments of patronage dividends where the amount received is not paid in money.
Payments made by certain foreign organizations.
Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
Payments described in section 6049(b)(5) to non-resident aliens.
Payments on tax-free covenant bonds under section 1451.
Payments made by certain foreign organizations.
Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE MUST STILL COMPLETE THE SUBSTITUTE FORM W-9
ENCLOSED HEREWITH TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE
SUBSTITUTE FORM W-9 WITH THE PAYER, REMEMBERING TO CERTIFY YOUR TAXPAYER
IDENTIFICATION NUMBER ON
<PAGE>
PART III OF THE FORM AND WRITE 'EXEMPT' ON THE FACE OF THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. Section 6109 requires most recipients of dividend, interest,
or other payments to give taxpayer identification numbers to payers who must
report the payments to IRS. IRS uses the numbers for identification purposes.
Payers must be given the numbers whether or not recipients are required to file
tax returns. Beginning January 1, 1993, payers must generally withhold 31% of
taxable interest, dividend, and certain other payments to a payee who does not
furnish a taxpayer identification number to a payer. Certain penalties may also
apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income and such failure is due to negligence, a
penalty of 20% is imposed on any portion of an under-payment attributable to
that failure.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
Page 2
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated November
14, 1994 and the related Letter of Transmittal and 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.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TRICO PRODUCTS CORPORATION
AT
$85.00 NET PER SHARE
BY
STANT EXPANSION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
STANT CORPORATION
Stant Expansion Corporation, a New York corporation (the 'Purchaser') and a
wholly owned subsidiary of Stant Corporation, a Delaware corporation ('Parent'),
is offering to purchase all outstanding shares of Common Stock, no par value
(the 'Shares'), of Trico Products Corporation, a New York corporation (the
'Company'), at $85.00 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated November 14,
1994 and in the related Letter of Transmittal (which together constitute the
'Offer').
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY
DECEMBER 12, 1994, UNLESS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF SHARES
WHICH WOULD REPRESENT AT LEAST TWO-THIRDS OF ALL OUTSTANDING SHARES (THE
'MINIMUM CONDITION').
The Offer is being made pursuant to an Agreement and Plan of Merger dated as of
November 8, 1994 (the 'Merger Agreement'), among Parent, the Purchaser and th
Company pursuant to which, following the consummation of the Offer, the
Purchaser will be merged with and into the Company (the 'Merger'). On the
effective date of the Merger, each outstanding Share (other than Shares owned by
Parent, the Purchaser or any other subsidiary of Parent, or by stockholders, if
any, who are entitled to and who properly exercise dissenters' rights under New
York law) will be converted into the right to receive $85.00 in cash, without
interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE OFFER AND THE MERGER AND
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS THAT
STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES.
The Purchaser and Parent have also entered into a Stockholders Agreement dated
as of November 8, 1994 (the 'Stockholders Agreement') with certain stockholders
of the Company who beneficially own 614,296 Shares in the aggregate (or
approximately 33% of the aggregate number of Shares outstanding as of November
8, 1994). Under the Stockholders Agreement, those stockholders party thereto
have agreed to tender their Shares into the Offer and have also granted to
Parent an option to purchase such Shares under certain circumstances.
For purposes of the Offer, the Purchaser shall be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to the Purchaser and
not withdrawn as, if and when the Purchaser gives oral or written notice to the
depositary specified in the Offer to Purchase (the 'Depositary') of the
Purchaser's acceptance for payment of such Shares. Upon the terms and subject to
the conditions of the Offer, payment for Shares purchased pursuant to the Offer
will be made by deposit of the purchase price therefor with the Depositary,
which will act as agent for tendering stockholders for the purpose of receiving
payment from the Purchaser and transmitting payment to tendering stockholders.
In all cases, payment for Shares purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of (a) certificates for such Shares
or timely confirmation of book-entry transfer of such Shares into the
Depositary's account at a Book-Entry Transfer Facility (as defined in the Offer
to Purchase) pursuant to the procedures set forth in Section 2 of the Offer to
Purchase, (b) a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees and (c) any other
documents required by the Letter of Transmittal. Under no circumstances will
interest be paid by the Purchaser on the purchase price of the Shares,
regardless of any delay in making such payment.
<PAGE>
The term 'Expiration Date' means 12:00 Midnight, New York City time, on Monday,
December 12, 1994, unless and until the Purchaser, in its sole discretion (but
subject to the terms of the Merger 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 on which the Offer, as so extended by the
Purchaser, shall expire. The Purchaser expressly reserves the right, in its sole
discretion (but subject to the terms of the Merger Agreement), at any time or
from time to time, and regardless of whether or not any of the events set forth
in Section 14 of the Offer to Purchase shall have occurred, 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 Depositary. The Purchaser shall not have any obligation to pay
interest on the purchase price for tendered Shares in the event the Purchaser
exercises its right to extend the period of time during which the Offer is open.
There can be no assurance that the Purchaser will exercise its right to extend
the Offer (other than as required by the Merger Agreement). Any such extension
will be followed by a public announcement thereof no later than 9:00 A.M., New
York City time, on the next business day after the previously scheduled
Expiration Date. During any such extension, all Shares previously tendered and
not withdrawn will remain subject to the Offer, subject to the right of a
tendering stockholder to withdraw such stockholder's Shares.
Except as otherwise provided below, tenders of Shares are irrevocable. Shares
tendered pursuant to the Offer may be withdrawn at any time prior to 12:00
Midnight, New York City time, on Monday, December 12, 1994, or, if the Purchaser
shall have extended the period of time during which the Offer is open, the
latest time and date at which the Offer, as so extended by the Purchaser, shall
expire and, unless theretofore accepted for payment, may also be withdrawn at
any time after January 12, 1995. For a withdrawal to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must be timely
received by the Depositary at one of its addresses set forth on the back cover
of the Offer to Purchase and must specify the name of the person having tendered
the Shares to be withdrawn, the number of Shares 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 Depositary, then, prior to the physical
release of such certificates, the serial numbers shown on such certificates must
be submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution (as defined in Section 2 of the Offer to Purchase), the
signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution. If Shares have been delivered pursuant to the procedures for
book-entry transfer as set forth in Section 2 of the Offer to Purchase, any
notice of withdrawal must also specify the name and number of the account at the
appropriate Book-Entry Transfer Facility to be credited with the withdrawn
Shares and otherwise comply with such Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of the
procedures described in Section 2 of the Offer to Purchase at any time prior to
the Expiration Date. All questions as to the form and validity (including time
of receipt) of notices of withdrawal will be determined by the Purchaser, in its
sole discretion, whose determination will be final and binding.
The Offer to Purchase and the related Letter of Transmittal and other relevant
materials will be mailed to record holders of Shares and furnished to brokers,
dealers, banks, trust companies and similar persons whose names, or the names of
whose nominees, appear on the stockholder lists or, if applicable, who are
listed as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of Shares.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) under the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated herein by reference.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
Requests for copies of the Offer to Purchase, the Letter of Transmittal and all
other tender offer materials may be directed to the Information Agent as set
forth below, and copies will be furnished promptly at the Purchaser's expense.
The Information Agent for the Offer is:
MACKENZIE PARTNERS
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
Call Toll Free (800) 322-2885
November 14, 1994
<PAGE>
Contact: 317/962-6655
STANT CORPORATION
Thomas F. Plocinik
Sr. Vice President and
Chief Financial Officer
Contact: 716/857-3352
TRICO PRODUCTS CORPORATION
Christopher T. Dunstan
Vice Chairman and
Chief Financial Officer
FOR IMMEDIATE RELEASE November 8, 1994
(SUGGESTED HEADLINE)
'STANT CORPORATION AGREES TO ACQUIRE TRICO
PRODUCTS CORPORATION FOR $85 PER SHARE IN CASH'
Stant Corporation (NASDAQ:STNT), a leading manufacturer of automotive parts and
tools, announced today that it has entered into a merger agreement with Trico
Products Corporation (NASDAQ:TRCO), the leading manufacturer of windshield
wiping systems worldwide. Under the terms of the agreement, unanimously approved
by the Trico Board of Directors late Monday afternoon, Stant will commence a
tender offer to purchase all outstanding shares of Trico common stock for $85
per share, net to the seller in cash. The tender offer will be conditioned upon,
among other things, the tender of shares which represent at least two-thirds of
the outstanding shares and certain regulatory approvals. The Oishei Family
Charitable Foundation and other family trusts that own 33% of Trico's
outstanding shares have agreed to tender their shares and have granted Stant an
option to purchase their shares at the offer price. Following the tender offer,
a merger will be consummated in
<PAGE>
2
which each share of Trico common stock not purchased pursuant to the tender
offer will be converted into the right to receive $85 in cash. The aggregate
purchase price in the offer and merger will be approximately $160 million.
Stant and Trico expect that the necessary filings with the Securities and
Exchange Commission in connection with the tender offer will be made early next
week, and that these tender offer documents will be mailed to Trico's
shareholders promptly thereafter.
Stant Corporation President and CEO, David R. Paridy said, 'We are delighted at
the prospect of having Trico join our family of companies and intend to continue
and build on Trico's worldwide reputation for excellence.'
Richard L. Wolf, Chairman and CEO of Trico Products, which is headquartered in
Buffalo, NY, said, 'This alliance with Stant will enable Trico to meet the
challenges of our industry. We have long been aware of Stant's outstanding
position in the automotive industry and believe that this merger will enhance
our position as a world class automotive supplier.'
Goldman Sachs advised Trico in this transaction.
<PAGE>
November 14, 1994
FOR IMMEDIATE RELEASE
PRESS RELEASE
STANT CORPORATION
(NASDAQ STNT)
Richmond, Indiana, November 14, 1994 --- Stant Corporation
(NASDAQ:STNT) announced today that it had commenced a tender offer to purchase
all outstanding shares of common stock of Trico Products Corporation
(NASDAQ:TRCO) for $85.00 per share, net to the seller in cash. The tender offer
is being made pursuant to the previously announced merger agreement between
Stant and Trico. The tender offer is conditioned upon, among other things, the
tender of shares which represent at least two-thirds of the outstanding shares
and certain regulatory approvals. The Oishei Family Charitable Foundation and
other family trusts that own 33% of Trico's outstanding shares have agreed to
tender their shares and have granted Stant an option to purchase their shares at
the offer price. Following the tender offer, a merger will be consummated in
which each share of Trico stock not purchased pursuant to the tender offer will
be converted into the right to receive $85.00 in cash.
The offer and withdrawal rights expire at 12:00 midnight, New
York City time on Monday, December 12, 1994, unless extended.
Stant Corporation, headquartered in Richmond, Indiana, is a
manufacturer of automotive parts including closure caps, fuel and vapor control
valves, engine thermostats, hose clamps, automotive tools, grease guns and
automotive fittings, windshield wiper blades, heater parts and power steering
hoses and units. Trico, headquartered in Buffalo, New York, is the world's
largest manufacturer of windshield wiping and washing systems.
Contact: Thomas F. Plocinik
Stant Corporation
(317) 962-6655
<PAGE>
[Letterhead of Chemical Bank]
October 20, 1994
Stant Corporation
425 Commerce Drive
Richmond, Indiana 47374
Attention: Thomas F. Plocinik
Senior Vice President -
Chief Financial Officer
re: Acquisition Financing-Commitment Letter
Dear Sirs:
You have informed us that Stant Corporation (the 'Company')
may, through an acquisition subsidiary ('Acq. Sub.'), commence an all cash
tender offer (the 'Tender Offer') for all of the issued and outstanding shares
of common stock of Trico Products Corporation ('Trico'), which Tender Offer will
be followed by a merger (the 'Merger', and together with the Tender Offer
collectively, the 'Acquisition') of Trico with Acq. Sub.
We understand that up to $300 million of senior secured bank
financing (the 'Bank Financing') will be required to finance the Acquisition, to
refinance outstanding indebtedness of Trico, to replace the Company's existing
revolving credit arrangement (the 'Existing Bank Facility'), to pay related
costs and expenses and to provide for ongoing working capital and for general
corporate purposes. Such Bank Financing will consist of (i) up to $200 million
senior secured term loan facility (the 'Term Facility') and (ii) up to $100
million senior secured revolving credit facility (the 'Revolving Facility', and
together with the Term Facility collectively, the 'Credit Facilities').
Chemical Bank ('Chemical') is pleased to advise you of its
commitment to provide the entire principal amount of the Bank Financing upon the
terms and subject to the conditions set forth or referred to herein and in the
Summary of Principal Terms and Conditions attached hereto as Annex I (the 'Term
Sheet'). It is understood and agreed (a) that Chemical will act as sole and
exclusive administrative agent (the 'Agent') and collateral agent for the Bank
Financing and perform all functions and exercise all authority (including,
without limitation, selecting its counsel and
1
<PAGE>
negotiating the definitive credit documentation) customarily performed and
exercised by it in such capacity and (b) that co-agents will be appointed only
with Chemical's consent. The co-agent title and/or any other title awarded to
syndicate Lenders (as defined below), if approved by Chemical, would be in name
only, and no such syndicate Lender would have any role with respect to the
matters referred to in the preceding sentence. You have requested that Chemical
Securities Inc., a Chemical affiliate ('CSI'), act as sole arranger and manager
of the syndication effort.
Chemical reserves the right, prior to or after execution of
definitive documentation with respect to the Bank Financing, to syndicate
through CSI all or a portion of its commitment to one or more financial
institutions reasonably acceptable to you that will become parties to the
definitive documentation (the financial institutions becoming parties to such
documentation, the 'Lenders'). You understand that Chemical and CSI intend to
commence syndication efforts promptly, and you agree actively to assist CSI in
achieving a timely syndication that is satisfactory to CSI. This will be
accomplished by a variety of means, including direct contact during the
syndication among the senior officers, representatives and advisors of Bessemer
Holdings, L.P. (together with its direct affiliates, 'Bessemer'), the Company
and its subsidiaries and/or Trico and its subsidiaries, on the one hand, and the
proposed Lenders, on the other hand. Such assistance shall also include using
your best efforts to ensure that CSI's syndication efforts benefit materially
from your, Bessemer's and Trico's lending relationships.
You agree to assist CSI in forming any such syndicate and to
provide CSI and Chemical, promptly upon request, with all information reasonably
deemed necessary by them to complete the syndication successfully, including,
but not limited to, (a) assisting CSI in the preparation of a confidential
information package for delivery to potential syndicate members and participants
and (b) providing information and projections prepared by you or your advisers
relating to the transactions described herein (other than information or
projections which you have been advised by counsel are subject to
attorney-client privilege and/or other confidentiality agreement and which do
not contain material adverse information concerning you or Trico). You agree to
coordinate any other financings relating to the Acquisition with CSI's
syndication effort and to refrain from any such financings during such
syndication process until the execution and delivery of definitive documentation
relating to the Bank Financing unless otherwise agreed to by CSI. You further
agree to make appropriate officers and representatives of the Company and its
subsidiaries, and to use reasonable efforts to make appropriate officers and
representatives of Trico and its subsidiaries, available to participate in
information meetings for potential syndicate members and participants at such
times and places as CSI may reasonably request. You agree that no Lender will
receive any compensation of any kind from you for its participation in the Bank
Financing, except as expressly provided for in this letter or in the Fee Letter
referred to below.
2
<PAGE>
As consideration for Chemical's commitment hereunder and its
agreement contained herein as to, and CSI's efforts in connection with, the
management, structuring and syndication of the Bank Financing, you agree to pay
the fees as set forth in the Term Sheet and in the Fee Letter dated the date
hereof and delivered herewith (the 'Fee Letter').
You hereby represent and covenant that (a) all information and
data (excluding projections) concerning each of the Company and its subsidiaries
and Trico and its subsidiaries and the transactions contemplated hereby (the
'Information') which have been prepared by you and/or any of your
representatives and which have been made or will be made available to Chemical
and/or CSI by you or any of your representatives in connection with the
transactions contemplated hereby, when taken as a whole, do not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially
misleading and (b) all financial projections (the 'Projections') that have been
or are prepared by or on behalf of you and that have been or will be made
available to Chemical and/or CSI and/or any Lender hereafter have been and will
be prepared in good faith based upon assumptions believed by you at the time to
be reasonable. In arranging and syndicating the Bank Financing, CSI will be
using and relying on the Information and Projections without independent
verification thereof. Chemical acknowledges that all such Information relating
to Trico has been prepared by Trico and/or its advisers and not by the Company.
Chemical's commitment hereunder is also subject to (a)
Chemical's satisfactory completion of its business and legal due diligence
analysis and review with respect to the assets, liabilities, business,
properties, operations, condition (financial or otherwise) or prospects of Trico
and its subsidiaries, provided, that it is understood and agreed that this
condition shall be deemed satisfied when we have informed you that our counsel
has received and reviewed to their satisfaction documentation and information
relating to environmental, litigation, tax and capital structure matters
relating to Trico and its subsidiaries, and we hereby agree to use our best
efforts, and to cause our counsel to use their best efforts, to complete such
due diligence within three business days of our and their receipt of such
documentation and information, (b) the absence of any event or occurrence having
a material adverse effect on the assets, liabilities, business, properties,
operations, condition (financial or otherwise) or prospects of the Company and
its subsidiaries on a consolidated basis or of Trico and its subsidiaries on a
consolidated basis, (c) there not having occurred and be continuing a material
disruption of or material adverse change in the financial, banking or capital
market conditions that, in Chemical's reasonable judgment, could adversely
affect the satisfactory syndication of the Bank Financing, (d) Chemical's
satisfaction that there shall be no competing offering, placement or arrangement
of any debt securities of the Company or any subsidiary prior to or during the
syndication of the Bank Financing and until the date of executions of definitive
documentation relating to the Bank Financing and (e) the
3
<PAGE>
termination of the Existing Bank Facility. In addition, Chemical's commitment
hereunder shall terminate on (i) November 4, 1994 (or such later date as is
mutually agreed upon), unless a merger agreement in respect of the Merger (the
'Merger Agreement') containing terms and conditions satisfactory to Chemical is
executed by the parties thereto on or before such date and in any event on (ii)
January 31, 1995, unless there has theretofore occurred the Closing Date (i.e.
the day on which the initial borrowing under the Bank Financing has occurred).
Notwithstanding the foregoing, the compensation, reimbursement and
indemnification provisions hereof and of the Term Sheet and the Fee Letter shall
survive any termination of this letter or Chemical's commitment hereunder.
Chemical's commitment hereunder is also subject to the
negotiation, execution and delivery of definitive documentation with respect to
the Bank Financing satisfactory to Chemical. The terms and conditions of
Chemical's commitment hereunder and of the Bank Financing are not limited to the
terms and conditions set forth herein or in the Term Sheet. Those matters that
are not covered by or made clear under the provisions hereof or of the Term
Sheet are subject to the approval and agreement of Chemical and you (it being
understood that the terms and conditions of the definitive documentation with
respect to the Bank Financing shall not be inconsistent with the terms and
conditions set forth herein or in the Term Sheet).
By executing this letter, you agree (a) to indemnify and hold
harmless each of Chemical and CSI and its officers, directors, employees, agents
and controlling persons from and against any and all losses, claims, damages,
liabilities and expenses, joint or several, to which any such person may become
subject arising out of or in connection with this letter, the Fee Letter, the
Term Sheet, the Acquisition or any related transaction or any claim, litigation,
investigation or proceeding relating to any of the foregoing, regardless of
whether any of such indemnified parties is a party thereto, and to reimburse
each of such indemnified parties upon demand for any legal or other expenses
incurred in connection with investigating or defending any of the foregoing (it
being understood and agreed that any settlement of claims for monetary damages
involving Chemical or CSI shall be by mutual agreement between Chemical or CSI,
as the case may be, and you), provided that the foregoing indemnity will not
apply to losses, claims, damages, liabilities or related expenses to the extent
they are found by a final decision of a court of competent jurisdiction to have
resulted from the willful misconduct or gross negligence of such indemnified
party or its agents or representatives, and (b) to reimburse Chemical and CSI
from time to time for all reasonable out-of-pocket expenses (including
reasonable syndication expenses and reasonable fees, disbursements and other
charges of counsel) incurred in connection with the Bank Financing and the
preparation of this letter, the Term Sheet, the Fee Letter, the definitive
documentation for the Bank Financing and the security arrangements in connection
therewith. If an indemnified party shall be indemnified in respect of any
losses, claims, damages, liabilities or related expenses and such
4
<PAGE>
losses, claims, damages, liabilities or related expenses are found by a final
decision of a court of competent jurisdiction to have resulted from the wilful
misconduct or gross negligence of such indemnified party, then such indemnified
party shall refund all amounts received by it under this paragraph in excess of
those to which it shall have been entitled under the terms of this paragraph.
The provisions contained in this paragraph shall remain in full force and effect
regardless of whether definitive financing documentation shall be executed and
delivered and notwithstanding the termination of this letter or the commitment
hereunder, provided, that effective upon the Closing Date the provisions
contained in this paragraph shall be superseded in all respects by the terms of
definitive documentation for the Bank Financing. This letter is addressed solely
to you, and neither Chemical nor CSI shall be liable to you or any other person
for any consequential damages which may be alleged as a result of this letter or
any of the transactions referred to herein.
You agree that this Commitment Letter is for your confidential
use only and will not, without prior agreement of Chemical, be disclosed by you
to any person other than (a) Bessemer and your and their respective directors,
officers, employees, accountants, attorneys and other advisors on a need-to-know
basis, and (b) as required by law or compulsory legal process and (c) upon your
acceptance of this Commitment Letter as provided below, the Board of Directors
of Trico and each of Trico's and its significant subsidiaries' officers,
employees, accountants, attorneys and other advisers, in each case only in
connection with the transactions contemplated hereby and on a confidential and
need-to-know basis.
This letter and Chemical's commitment hereunder shall not be
assignable by you without the prior written consent of Chemical and may not be
amended or any provision hereof waived or modified except by an instrument in
writing signed by Chemical and you. This letter may be executed in any number of
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one agreement. This letter is intended to be solely
for the benefit of the parties hereto and is not intended to confer any benefits
upon, or create any rights in favor of, any person other than the parties
hereto. This letter shall be governed by, and construed in accordance with, the
laws of the State of New York.
Please indicate your acceptance of the terms hereof and of the
Fee Letter by signing in the appropriate space below and in the Fee Letter and
returning to Chemical (including by way of facsimile transmission) the enclosed
duplicate original of this Commitment Letter and the Fee Letter not later than
12:00 Noon, New York City time, on October 21, 1994, at which time Chemical's
commitment hereunder will expire in the event Chemical has not received such
executed duplicate originals in accordance with this sentence and in which case
you are to return all copies of this letter, the Term Sheet and the Fee Letter
to us as promptly as possible.
5
<PAGE>
Chemical is pleased to have been given the opportunity to
assist you in connection with the financing for the Acquisition.
Very truly yours,
CHEMICAL BANK
By /s/ Karen M. Bager
Title: Vice President
Accepted and Agreed to this
20th day of October, 1994:
STANT CORPORATION
By /s/ Thomas F. Plocinik
Title: Senior Vice President-Finance
6
<PAGE>
ANNEX I
SUMMARY OF PRINCIPAL
TERMS AND CONDITIONS *
Borrower: Stant Corporation (the 'Company').
Agent: Chemical Bank ('Chemical').
Arranger: Chemical Securities, Inc. ('CSI').
Lenders: A syndicate of banking and financial institutions
arranged by CSI (collectively with Chemical, the
'Lenders'
Facilities: The Bank Financing will consist of:
Up to $200 million senior secured term loan facility
(the 'Term Facility')
Up to $100 million senior secured
revolving credit facility (the 'Revolving Facility',
and together with the Term Facility collectively, the
'Credit Facilities').
Purpose: Loans (the 'Term Loans') under the Term Facility will
be incurred pursuant to an initial borrowing on the
Closing Date and a second borrowing on the date the
Merger is consummated (the 'Merger Date') (i) to
finance the Acquisition, (ii) to refinance
indebtedness of Trico, (iii) to refinance the
outstandings under the Existing Bank Facility and
(iv) to pay related fees and expenses. Once repaid,
Term Loans may not be reborrowed.
Loans (the 'Revolving Loans', and together with the
Term Loans collectively, the 'Loans') under the
Revolving Facility will be available on and after the
Closing Date and may be incurred (i) for the purposes
as described for the Term Loans, provided that
Revolving Loans in excess of $60 million shall not be
incurred for the purposes described in this clause
(i) without the prior consent of Chemical and (ii) to
finance general corporate and working capital
requirements. A portion of the Revolving Facility up
to $20 million will be available
- -------------------
* All capitalized terms used herein but not defined herein shall have the
meanings provided in the commitment letter to which this summary is attached.
7
<PAGE>
for the issuance of letters of credit ('Letters of
Credit') in support of trade and other specified
obligations. Up to $30 million of the Revolving
Facility may be utilized to effect permitted
acquisitions on substantially the same terms and
conditions as contained in the Existing Bank
Facility.
Swingline Loans: Chemical, or any other Lender acceptable to Chemical
and the Company, in its individual capacity (in such
capacity, the 'Swingline Lender'), shall, if
requested by the Company, make loans (the 'Swingline
Loans'), provided that such Swingline Loans (i) shall
be Base Rate loans (as referred to below), (ii) shall
not exceed in the aggregate principal amount $10
million at any time outstanding and (iii) may only be
incurred if there is sufficient availability under
the Revolving Facility at such time (with Swingline
Loans being treated as an incurrence of Revolving
Loans for purposes of determining availability
pursuant to the Revolving Facility, but not for
purposes of calculating commitment fees as described
below). The Revolving Facility shall contain
mechanisms which allow the Swingline Lender to
require the Lenders, in proportion to their
respective Revolving Facility commitments, to fund
borrowings of Base Rate Loans to refinance any
outstanding Swingline Loans, regardless of whether
any conditions to borrowing could then be met.
Interest Rate: At the Company's option:
(1) Base Rate + Applicable Margin; or
(2) Eurodollar Rate (adjusted for maximum reserves)
+ Applicable Margin for 1, 2, 3 or 6 month
interest period
The Base Rate is defined as the highest of (i) the
announced prime rate of Chemical, (ii) the Federal
Reserve reported certificate of deposit rate + 1% and
(iii) the federal funds rate + 1/2 of 1%.
The Applicable Margin shall equal (x) 1-1/4% per
annum for Eurodollar loans and (y) 1/4 of 1% per
annum for Base Rate loans, in each case subject to
reductions in amounts and upon financial criteria to
be mutually agreed upon.
The credit agreement governing the Bank Financing
(the 'Credit Agreement') shall include standard
protective provisions for such matters as increased
costs, funding
8
<PAGE>
losses, defaulting banks, capital adequacy,
illegality and withholding taxes.
Interest in respect of Base Rate loans shall be
payable quarterly in arrears on the last business day
of each fiscal quarter. Interest in respect of
Eurodollar loans shall be payable at the end of the
applicable interest period, but not less frequently
than quarterly. All interest and fees will be
calculated on the basis of the number of actual days
elapsed in a 360-day year (except that fees and
interest rate based on Chemical's prime shall be
based on a 365/366 day year). After and during
continuance of any payment default, overdue Loans and
other overdue amounts will bear interest at 2% above
the rate otherwise applicable thereto.
Letter of
Credit Fees: The Applicable Margin for Eurodollar loans from
time to time in effect on the stated amount of each
Letter of Credit, plus a fronting fee to be
negotiated, together with customary administrative
fees, for the Lender or Lenders (acceptable to the
Company and Chemical) that issues same.
Commitment Fees: The Company shall pay a commitment fee, which will
accrue on and after the date (the 'Allocation Date')
on which commitments are allocated among the Lenders
upon completion of the syndication of the Bank
Financing, on the aggregate unutilized commitments
under the Credit Facilities of each Lender, as in
effect from time to time. The commitment fee shall be
3/8 of 1% per annum, subject to reductions at times
and upon financial criteria to be mutually agreed
upon and shall be payable on the Closing Date, if the
same occurs, and thereafter quarterly in arrears.
Maturity: Term Loans will mature on the date seven years after
the Closing Date (the 'Final Maturity Date'), subject
to amortization to be determined.
The Revolving Facility will mature and terminate on
the Final Maturity Date, with Letters of Credit to
have in addition a specified maximum maturity upon
issuance.
Guaranty: Each subsidiary of the Company (including, without
limitation, Acq. Sub. and (and only) after giving
effect to the Merger, Trico and each of its
subsidiaries) (each a 'Subsidiary Guarantor') shall
be required to provide an unconditional guaranty
(collectively, the 'Subsidiary
9
<PAGE>
Guaranty') of all of the Company's obligations with
respect to the Credit Facilities.
Security: Each of the Company and each Subsidiary Guarantor
(other than Acq. Sub. and Trico and each of its
subsidiaries) shall provide collateral security on
substantially the same terms as contained in the
Existing Bank Facility and the Company shall pledge
and grant a first priority perfected security
interest in 100% of the capital stock of Acq. Sub. On
the Merger Date, after consummating the Merger, (i)
the Company shall pledge and grant a first priority
preferred security interest in 100% of the capital
stock of Trico and (ii) Trico and each of its
subsidiaries shall pledge and grant a first priority
perfected security interest in 100% of the capital
stock of each of its subsidiaries.
Voluntary
Prepayments;
Commitment
Reductions: At its option, the Company may (i) prepay the Term
Loans and Revolving Loans in whole or in part
(subject to specified minimum principal amounts)
without premium or penalty (except for breakage fees
on prepayments, other than on the last day of the
applicable interest period, on Eurodollar loans) and
(ii) reduce the unutilized commitment under the
Revolving Facility. Optional prepayments of the Term
Loans will be applied pro rata to the remaining
installments thereof.
Mandatory
Prepayments: Mandatory prepayments (and commitment reductions)
from net proceeds of any sale or other disposition
(including a sale/ leaseback) by the Company and/or
any of its subsidiaries of any assets (except sales
in the ordinary course of business, certain sales the
proceeds of which are used to acquire replacement
assets and other exceptions to be negotiated) and
certain incurrences of debt and, subject to reduction
upon satisfaction of financial criteria to be
mutually agreed upon, from a percentage to be
negotiated of annual Excess Cash Flow (to be mutually
agreed upon) beginning with the fiscal year of the
Company ending December 31, 1995, with those
prepayments to be applied to the Term Loans to be
applied pro rata among all remaining installments
thereof, it being understood that all mandatory
10
<PAGE>
prepayments will be applied to repay installments of
the Term Loans prior to any application thereof to
the Revolving Facility. All Loans will become due and
payable (and all Letters of Credit will terminate or
be required to be cash collateralized) upon the
occurrence of a Change of Control (to be defined in a
manner consistent with definition in the Existing
Bank Facility).
Representations
and Warranties: Customary for financings of this type and others
reasonably specified by the Lenders.
Affirmative
Covenants: Customary, including, without limitation, delivery of
financial statements, reports, accountants' letter,
projections on an annual basis, officers'
certificates and other information reasonably
requested by the Lenders; payment of taxes and other
obligations; continuation of business and maintenance
of existence, rights and privileges; compliance with
contractual obligations and laws; maintenance of
property and insurance; maintenance of books and
records; right of the Lenders to inspect property and
books and records; notices of defaults, litigation
and material events; agreement to grant security
interests in certain after-acquired property; and
agreement to obtain interest rate protection
satisfactory to Chemical.
Additionally, the Merger shall be required to be
consummated within 180 days of the Closing Date.
Financial
Covenants: To be determined but including, without limitation, a
maximum leverage ratio test, a minimum net worth test
and a minimum interest coverage test.
Negative
Covenants: Customary including, without limitation, restrictions
(subject to exceptions to be agreed upon) on
indebtedness (including guarantees), liens, asset
dispositions, dividends, capital expenditures,
investments, loans and advances, leases,
acquisitions, mergers, changes in business conducted,
transactions with affiliates, changes in fiscal
periods, sale and leaseback transactions, prepayment
of other indebtedness and amendments of debt and
other capitalization documents. There will be no
restrictions or other arrangements which would cause
the loans to be
11
<PAGE>
secured directly or indirectly by margin stock
(including the stock of Trico) in violation of
Regulation U.
Events of Default: Customary, including, without limitation, nonpayment
of principal, interest, fees or other amounts,
violation of covenants, material inaccuracy of
representations and warranties, cross-default,
bankruptcy, material judgements, ERISA and actual or
asserted invalidity of any loan documents, security
interests or subordination provisions, subject to
customary grace periods when appropriate.
Conditions
Precedent
to Loans: Usual and customary for transactions of this type,
including, without limitation, the conditions set
forth in the letter to which this Annex I is
attached, accuracy of representations and warranties,
absence of material adverse litigation as to the
Acquisition, the Bank Financing, the Company and its
subsidiaries taken as a whole (after giving effect to
the Acquisition), absence of defaults, evidence of
authority, satisfactory legal opinions, compliance
with applicable laws, rules and regulations, the
perfection of any security interest granted and
receipt of necessary consents and approvals and shall
also include, without limitation:
(1) Execution of the Credit Agreement and other
credit documents in form and substance
satisfactory to Chemical.
(2) Nothing shall have occurred (nor shall any of
Chemical or the Lenders become aware of any
facts not previously known) which Chemical or
the Required Lenders (as defined under
'Voting' below) shall determine is reasonably
likely to have a material adverse effect (i)
on the assets, liabilities, business,
properties, operations, condition (financial
or otherwise), or prospects of the Company
and its subsidiaries taken as a whole (after
giving effect to the Acquisition) from that
set forth in specified financial statements
or (ii) on the rights and remedies of the
Agent or the Lenders or on the ability of the
Company or any of its subsidiaries to perform
their respective obligations to the Agent and
the Lenders.
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<PAGE>
(3) The Tender Offer shall have been (or
simultaneously with the incurrence of Term
Loans on the Closing Date shall be)
consummated in compliance with the terms and
conditions (including the price paid for each
share pursuant thereto) set forth in an Offer
to Purchase containing such terms and
conditions as shall be reasonably
satisfactory to Chemical (or the Company
shall acquire such number of shares of Trico
on such terms and conditions as shall in each
case be satisfactory to Chemical in its sole
discretion). After giving effect to the
consummation of the Tender Offer, Acq. Sub.
shall own and control that number of shares
of Trico as shall be necessary to permit Acq.
Sub. to approve the Merger without the
affirmative vote or approval of any other
shareholders (or such lesser number of shares
as shall be satisfactory to Chemical in its
sole discretion), and there shall be no
applicable statute, order or other
restriction which would prohibit, materially
restrict or materially delay the consummation
of the Merger or which would be reasonably
likely to make the consummation of the Merger
economically unfeasible.
(4) The Merger Agreement shall be in full force
and effect, and no defaults shall be
continuing thereunder.
(5) Receipt of a solvency certificate from the
chief financial officer of the Company
(giving effect to the Acquisition and the
Bank Financing) satisfactory to Chemical.
Transfer Provisions: The Lenders may at any time assign (with the
consent of the Company, which shall not be
unreasonably withheld or, if determined by
the Agent after consultation with prospective
Lenders to be necessary for successful
syndication, without the consent of, but upon
reasonable consultation with, the Company) or
grant participations in (without the consent
of the Company) all or any part of, their
loans, commitments and other rights and
duties to one or more other financial
institutions, subject to a minimum assignment
amount to be agreed to. Non-pro rata
assignments will be permitted. Participations
shall be without restrictions (but
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<PAGE>
subject to customary voting restrictions) and
participants will have the same benefits as
the Lenders with respect to yield protection
and increased costs provisions (except a
participant shall not be entitled to any
greater amount than the relevant Lender would
have received if no participation had been
sold).
Governing Law: New York.
Expenses and
Indemnification: Shall be for the Company's account.
Voting: Amendments and waivers to require approval of Lenders
representing at least 51% (or if determined by the
Agent after consultation with prospective Lenders to
be necessary for successful syndication, 66-2/3%) of
the aggregate amount of the commitments and loans
(such Lenders, the 'Required Lenders'), except for
certain customary limited matters which shall be
subject to a 100% Lender vote.
Counsel for
the Agent: White & Case.
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<PAGE>
[Letterhead of Chemical Bank]
October 27, 1994
Stant Corporation
425 Commerce Drive
Richmond, Indiana 47375
Attention: Thomas F. Plocinik
Senior Vice President-
Chief Financial Officer
re Acquisition Financing-Commitment Letter
Dear Sirs:
Reference is made to our letter, dated October 20, 1994 (the
'Commitment Letter'). The terms used but not defined in this letter are used
with the meanings assigned to them in the Commitment Letter.
Upon your execution in the appropriate space below, the date
referred to in subclause (i) in the eighth paragraph of the Commitment Letter
shall be changed from 'November 4, 1994' to 'November 11, 1994.'
The change to the Commitment Letter specified in this letter is
limited as specified herein, and shall not constitute a modification, waiver or
amendment of any other provision of the Commitment Letter (including the Term
Sheet attached thereto) or the Fee Letter.
Very truly yours,
CHEMICAL BANK
By /s/ Karen M. Bager
Title: Vice President
Accepted and Agreed to this
28th day of October, 1994:
STANT CORPORATION
By /s/ Anthony Graziano
Title: Vice President and
General Counsel
<PAGE>
November 10, 1994
[Letterhead of Chemical Bank]
CHEMICAL BANK
270 Park Avenue
New York, NY 10017-2070
Stant Corporation
425 Commerce Drive
Richmond, Indiana 47375
Attention: Thomas F. Plocinik
Senior Vice President-
Chief Financial Officer
re Acquisition Financing-Commitment Letter
Dear Sirs:
Reference is made to our commitment letter, dated October 20,
1994 (as amended by our letter dated October 27, 1994, the 'Commitment Letter').
The terms used but not defined in this letter are used with the meanings
assigned to them in the Commitment Letter.
Upon your execution in the appropriate space below:
(i) the phrase 'three business days' contained in
subclause (a) in the eighth paragraph of the
Commitment Letter shall be changed to 'two business
days'; and
(ii) the dollar amount '$50 million' contained in the
second paragraph under the heading 'Purpose'
contained in the Term Sheet shall be changed to '$60
million'.
The changes to the Commitment Letter and the Term Sheet
specified in this letter are limited as specified herein, and shall not
constitute a modification, waiver or amendment of any other provision of the
Commitment Letter or the Term Sheet.
Very truly yours,
CHEMICAL BANK
By /s/
Title: Managing Director
Accepted and Agreed to this
10th day of November, 1994:
STANT CORPORATION
By /s/
Title:
<PAGE>
CONFORMED COPY
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the 'Merger Agreement'), dated as
of November 8, 1994, by and among STANT CORPORATION, a Delaware corporation
('Purchaser'), STANT EXPANSION CORPORATION, a New York corporation and a
wholly-owned subsidiary of Purchaser ('Sub'), and TRICO PRODUCTS CORPORATION, a
New York corporation (the 'Company').
W I T N E S S E T H :
WHEREAS, the Boards of Directors of Purchaser and the Company
have approved the acquisition of the Company by Purchaser;
WHEREAS, in furtherance of such acquisition, Purchaser proposes
to cause Sub to make a tender offer (as it may be amended from time to time as
permitted under this Merger Agreement, the 'Offer'), to purchase all the issued
and outstanding shares of Common Stock, no par value, of the Company (the
'Company Common Stock'), at a price per share of Company Common Stock of $85.00,
net to the seller in cash (such price, the 'Offer Price'), upon the terms and
subject to the conditions set forth in this Merger Agreement; and the Board of
Directors of the Company has approved the Offer and is recommending that the
Company's Stockholders accept the Offer;
WHEREAS, the Boards of Directors of Purchaser and the Company
have approved the Offer and the merger of Sub into the Company (the 'Merger'),
upon the terms and subject to the conditions set forth in the Offer and herein;
WHEREAS, concurrently with the execution and delivery of this
Merger Agreement the Purchaser and Sub have entered into an agreement with
certain stockholders of the Company pursuant to which such stockholders, among
other things, have agreed to tender pursuant to the Offer the shares of Company
Common Stock held by such stockholders and have granted to Sub the option to
purchase such shares in certain events;
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<PAGE>
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties and agreements contained herein the parties hereto
agree as follows:
ARTICLE I
THE OFFER
Section 1.1 The Offer. (a) Subject to the provisions of this
Merger Agreement, as promptly as practicable, but in no event later than
November 15, 1994, Sub shall, and Purchaser shall cause Sub to, commence the
Offer. The obligation of Sub to, and of Purchaser to cause Sub to, commence the
Offer and accept for payment, and pay for, any shares of Company Common Stock
tendered pursuant to the Offer shall be subject to the conditions set forth in
Exhibit A (any of which may be waived in whole or in part by Sub in its sole
discretion) and to the terms and conditions of this Merger Agreement; provided,
however, that Sub shall not, without the Company's consent, waive the Minimum
Condition (as defined in Exhibit A). Sub expressly reserves the right to modify
the terms of the Offer, except that, without the consent of the Company, Sub
shall not (i) reduce the number of shares of Company Common Stock to be
purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the
conditions set forth in Exhibit A in any manner adverse to the holders of
Company Common Stock, (iv) except as provided in the next sentence, extend the
Offer, (v) change the form of consideration payable in the Offer, or (vi) amend
any other term of the Offer in a manner adverse to the holders of Company Common
Stock. Notwithstanding the foregoing, Sub may, without the consent of the
Company, (x) extend the Offer beyond the scheduled expiration date (the initial
scheduled expiration date being 20 business days following commencement of the
Offer) if, at the scheduled expiration date of the Offer, any of the conditions
to Sub's obligation to accept for payment, and pay for, shares of Company Common
Stock shall not be satisfied or waived, until such time as such conditions are
satisfied or waived, (y) extend the Offer for any period required by any rule,
regulation, interpretation or position of the Securities and Exchange Commission
(the 'SEC') or the staff thereof applicable to the Offer, and (z) extend the
Offer for any reason for an aggregate period of not more than 15 business days
beyond the latest expiration date that would otherwise be permitted under clause
(x) or (y) of this sentence. Subject to the terms and conditions of the Offer
and this Merger Agreement, Sub shall, and Purchaser shall cause Sub to, accept
for payment, and pay for, all shares of Company Common Stock validly tendered
and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for
payment, and pay for, pursuant to the Offer as soon as practicable after the
expiration of the Offer.
(b) On the date of commencement of the Offer, Purchaser and Sub
shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect
to the Offer, which Statement shall contain an offer to purchase and a related
letter
2
<PAGE>
of transmittal and summary advertisement (such Schedule 14D-1 and the documents
included therein pursuant to which the Offer will be made, together with any
supplements or amendments thereto, the 'Offer Documents'). The Offer Documents
shall comply as to form in all material respects with the Securities Exchange
Act of 1934, as amended (the 'Exchange Act') and the rules and regulations
promulgated thereunder, and the Offer Documents, on the date first published,
sent or given to the Company's stockholders, shall not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that no
representation is made by Purchaser or Sub with respect to information supplied
by the Company for inclusion or incorporation by reference in the Offer
Documents. Each of Purchaser, Sub and the Company agrees promptly to correct any
information provided by it for use in the Offer Documents if and to the extent
that such information shall have become false or misleading in any material
respect, and each of Purchaser and Sub further agrees to take all steps
necessary to amend or supplement the Offer Documents and to cause the Offer
Documents as so amended or supplemented to be filed with the SEC and to be
disseminated to the Company's stockholders, in each case as and to the extent
required by applicable Federal securities laws. The Company and its counsel
shall be given a reasonable opportunity to review and comment upon the Offer
Documents and all amendments and supplements thereto prior to their filing with
the SEC or dissemination to stockholders of the Company. Purchaser and Sub agree
to provide the Company and its counsel any comments Purchaser, Sub or their
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments.
(c) Subject to the terms and conditions of the Offer, Purchaser
shall provide or cause to be provided to Sub on a timely basis the funds
necessary to accept for payment, and pay for, any shares of Company Common Stock
that Sub becomes obligated to accept for payment, and pay for, pursuant to the
Offer.
Section 1.2 Company Actions. (a) The Company hereby approves of
and consents to the Offer and represents that the Board of Directors of the
Company, at a meeting duly called and held, duly and unanimously adopted
resolutions approving the Offer, the Merger, this Merger Agreement and the
Stockholder Agreement (as defined below), determining that the terms of the
Offer and the Merger are fair to, and in the best interests of, the Company's
stockholders and recommending that the Company's stockholders accept the Offer
and tender their shares pursuant to the Offer and approve and adopt this Merger
Agreement. The Company has been advised by each of its directors and by each
executive officer who as of the date hereof is aware of the transactions
contemplated hereby, that each such person intends to tender pursuant to the
Offer all shares of Company Common Stock owned by such person. The Company
acknowledges that as a condition to Purchaser entering into this Merger
Agreement,
3
<PAGE>
Purchaser has entered into an agreement (the 'Stockholder Agreement') with the
holders of Company Common Stock identified on Exhibit B hereto, which holders
own in the aggregate 614,496 shares of Company Common stock (equal to 33% of the
outstanding shares of Company Common Stock), pursuant to which each such holder,
among other things, has agreed to tender all of its shares of Company Common
Stock pursuant to the Offer and has granted Sub the option to purchase such
Shares in certain events. The Company represents that its Board of Directors has
received the opinion of Goldman Sachs & Co. that the proposed consideration to
be received by the holders of shares of Company Common Stock pursuant to the
Offer and the Merger is fair to such holders from a financial point of view.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the 'Schedule 14D-9'), containing the recommendation described in
Section 1.2(a) and shall mail the Schedule 14D-9 to the stockholders of the
Company. The Schedule 14D-9 shall comply as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations
promulgated thereunder and, on the date filed with the SEC and on the date first
published, sent or given to the Company's stockholders, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that no representation is made by the Company with respect to information
supplied by Purchaser or Sub for inclusion or incorporation by reference in the
Schedule 14D-9. Each of the Company, Purchaser and Sub agrees promptly to
correct any information provided by it for use in the Schedule 14D-9 if and to
the extent that such information shall have become false or misleading in any
material respect, and the Company further agrees to take all steps necessary to
amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so
amended or supplemented to be filed with the SEC and disseminated to the
Company's stockholders, in each case as and to the extent required by applicable
Federal securities laws. Purchaser and its counsel shall be given a reasonable
opportunity to review and comment upon the Schedule 14D-9 and all amendments and
supplements thereto prior to their filing with the SEC or dissemination to
stockholders of the Company. The Company agrees to provide Purchaser and its
counsel in writing with any comments the Company or its counsel may receive from
the SEC or its staff with respect to the Schedule 14D-9 promptly after the
receipt of such comments.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Sub promptly with mailing labels containing the names
and addresses of the record holders of Company Common Stock as of a recent date
and of those persons becoming record holders subsequent to such date, together
with copies of all lists of stockholders, security position listings
4
<PAGE>
and computer files and all other information in the Company's possession or
control regarding the beneficial owners of Company Common Stock, and shall
furnish to Sub such information and assistance (including updated lists of
stockholders, security position listings and computer files) as Purchaser may
reasonably request in communicating the Offer to the Company's stockholders.
Subject to the requirements of applicable law, and except for such steps as are
necessary to disseminate the Offer Documents and any other documents necessary
to consummate the Merger, Purchaser and Sub and their agents shall hold in
confidence the information contained in any such labels, listings and files,
will use such information only in connection with the Offer and the Merger and,
if this Merger Agreement shall be terminated, will, upon request, deliver, and
will use their best efforts to cause their agents to deliver, to the Company all
copies of such information then in their possession or control.
ARTICLE II
THE MERGER
Section 2.1 The Merger. Upon the terms and subject to the
conditions hereof, on the Effective Date (as defined in Section 2.2), Sub shall
be merged into the Company and the separate existence of Sub shall thereupon
cease, and the name of the Company, as the surviving corporation in the Merger
(the 'Surviving Corporation'), shall by virtue of the Merger remain Trico
Products Corporation.
Section 2.2 Effective Date of the Merger. The Merger shall
become effective when a properly executed Certificate of Merger (the
'Certificate of Merger') is duly filed with the Secretary of State of the State
of New York, which filing shall be made as soon as practicable after the closing
of the transactions contemplated by this Merger Agreement in accordance with
Section 4.7. When used in this Merger Agreement, the term 'Effective Date' shall
mean the date and time at which the Certificate of Merger is so filed or at such
time thereafter as is provided in such Certificate of Merger.
ARTICLE III
THE SURVIVING CORPORATION
Section 3.1 Certificate of Incorporation. The Certificate of
Incorporation attached as Exhibit C hereto shall be filed with the Certificate
of Merger and shall be the Certificate of Incorporation of the Surviving
Corporation after the Effective Date, and thereafter may be amended in
accordance with its terms and as provided by law and this Merger Agreement.
Section 3.2 By-Laws. The By-Laws of Sub as in effect on the
Effective Date shall be the By-Laws of the Surviving Corporation.
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<PAGE>
Section 3.3 Board of Directors; Officers. (a) The directors of
Sub immediately prior to the Effective Date shall be the directors of the
Surviving Corporation until their successors are duly elected and qualified.
(b) The officers of the Company immediately prior to the
Effective Date shall be the officers of the Surviving Corporation until their
successors are duly elected and qualified.
Section 3.4 Effects of Merger. The Merger shall have the
effects set forth in Section 906 of the New York Business Corporation Law (the
'BCL').
ARTICLE IV
CONVERSION OF SHARES
Section 4.1 Merger Consideration. As of the Effective Date, by
virtue of the Merger and without any action on the part of any holder of Company
Common Stock:
(a) All shares of Company Common Stock which are held by the Company or
any subsidiary of the Company, and any shares of Company Common Stock owned
by Purchaser or Sub, shall be cancelled and no consideration shall be
delivered in exchange therefor.
(b) Each issued and outstanding share of the capital stock of Sub shall
be converted into and become one fully paid and nonassessable share of
Common Stock, without par value, of the Surviving Corporation.
(c) Subject to Section 4.4, each issued and outstanding share of
Company Common Stock (other than shares to be canceled in accordance with
Section 4.1(a)) shall be converted into the right to receive from the
Surviving Corporation in cash, without interest, the price per share of
Company Common Stock paid pursuant to the Offer (the 'Merger Price'). As of
the Effective Date, all such shares of Company Common Stock shall no longer
be outstanding and shall automatically be canceled and retired and shall
cease to exist, and each holder of a Certificate (as defined in Section 4.2)
representing any such shares of Company Common Stock shall cease to have any
rights with respect thereto, except the right to receive the Merger Price,
without interest.
Section 4.2 Surrender and Payment. (a) Prior to the Closing (as
defined in Section 4.7), the Purchaser shall appoint an agent (the 'Paying
Agent') for the purpose of paying the Merger Price in exchange for certificates
representing shares of Company Common Stock ('Certificates'). As soon as
practicable after the Effective Date, the Paying Agent shall send a notice and
transmittal form (which shall specify that delivery shall be
6
<PAGE>
effected, and risk of loss and title to Certificate(s) shall pass, only upon
delivery of such Certificate(s) to the Paying Agent and shall be in a form and
have such other provisions as Purchaser may reasonably specify) to each holder
of a Certificate(s) theretofore evidencing shares of Company Common Stock
outstanding immediately prior to the Effective Date, advising each such holder
of the effectiveness of the Merger and the procedure for surrendering to the
Paying Agent such Certificates for payment of the Merger Price.
(b) The Purchaser shall transmit, or shall cause the Surviving
Corporation to transmit, by wire, or other acceptable means to the Paying Agent
from time to time at and after the Effective Date, funds when and as required
for exchanges in accordance with this Merger Agreement. The Paying Agent shall
agree to deliver such funds (in the form of checks of the Paying Agent) in
accordance with this Section 4.2 and such additional terms as may be agreed upon
by the Paying Agent and the Purchaser. Any portion of such funds which has not
been paid pursuant to this Section 4.2 by six months after the Effective Date
shall promptly be paid to the Surviving Corporation, and thereafter any
stockholders of the Company who have not theretofore complied with this Section
4.2 shall look only to the Surviving Corporation for payment of the amount of
cash to which they are entitled in the Merger.
(c) Each holder of a Certificate(s) theretofore representing
shares of Company Common Stock which are converted into the right to receive the
Merger Price, upon surrender to the Paying Agent of such Certificate(s) for
cancellation, together with a duly completed transmittal form and such other
documents as may be reasonably requested by the Paying Agent, will be entitled
promptly to receive a check representing cash in the amount of the Merger Price
times the number of shares of Company Common Stock represented by such
Certificate(s) less any amount required to be withheld under applicable Federal
income tax regulations ('Backup Withholding') and such Certificate(s) so
surrendered shall forthwith be canceled.
(d) If payment of the Merger Price (or any portion thereof) is
to be made to a person other than the person in whose name the Certificate(s)
surrendered in exchange therefor is registered, it shall be a condition of such
payment that the Certificate(s) so surrendered shall be properly endorsed or
shall be otherwise in proper form for transfer and that the person requesting
such payment shall pay to the Paying Agent any transfer or other taxes required
by reason of such payment, or shall establish to the satisfaction of the Paying
Agent that such tax has been paid or is not applicable. Notwithstanding the
foregoing, neither the Paying Agent nor any party hereto shall be liable to any
person claiming the right to receive the Merger Price for any cash delivered to
a public official pursuant to any applicable abandoned property, escheat or
similar law. If any Certificate(s) shall not have been surrendered prior to five
years after the Effective Date (or immediately prior to such earlier date on
which any payment pursuant to this Article IV
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would otherwise escheat to or become the property of any Federal, state or local
government agency or court, administrative agency or commission or other
governmental authority or agency, domestic or foreign (a 'Governmental Entity'),
the payment in respect of such Certificate(s) shall, to the extent permitted by
applicable law, become the property of the Surviving Corporation, free and clear
of all claims or interest of any person previously entitled thereto.
(e) In the event any Certificate(s) theretofore representing
shares of Company Common Stock to be exchanged for the Merger Price has been
lost, stolen or destroyed, the Paying Agent shall pay to the person claiming
that such Certificate(s) has been lost, stolen or destroyed the cash into which
the shares theretofore represented by such Certificate(s) have been converted as
provided under the terms of this Merger Agreement (less any required Backup
Withholding), upon receipt of evidence of ownership of such Certificate(s) and
appropriate indemnification in each case satisfactory to the Paying Agent.
(f) Until surrendered as contemplated by this Section 4.02,
each Certificate shall be deemed at any time after the Effective Date to
represent only the right to receive upon such surrender the amount of cash,
without interest, into which the shares of Company Common Stock theretofore
represented by such Certificate shall have been converted pursuant to Section
4.1. No interest shall accrue or be paid on any portion of the Merger Price.
Section 4.3 Shareholders Meeting; Preparation of Proxy
Statement. (a) The Company will, at Purchaser's request, duly call, give notice
of, convene and hold a meeting of the holders of the Company Common Stock if
such meeting is required by applicable law for the purpose of approving this
Merger Agreement and the transactions contemplated by this Merger Agreement.
Subject to the provisions of Section 9.7(b), the Company will, through its Board
of Directors, recommend to its stockholders approval of this Merger Agreement,
the Merger and the other transactions contemplated by this Merger Agreement. At
the meeting, Purchaser shall cause all of the shares of the Company Common Stock
then actually or beneficially owned by Purchaser, Sub or any of their
subsidiaries to be voted in favor of the Merger. Notwithstanding the foregoing,
if Sub or any other subsidiary of Purchaser shall acquire at least 90% of the
outstanding shares of Company Common Stock, the parties shall, at the request of
Purchaser, take all necessary and appropriate action to cause the Merger to
become effective as soon as practicable after the expiration of the Offer and
the satisfaction of the conditions contained in Section 10.1 hereto without a
meeting in accordance with Section 905 of the BCL. Without limiting the
generality of the foregoing, the Company agrees that its obligations pursuant to
the first sentence of this Section shall not be affected by either the
commencement, public proposal, public disclosure or communication to the Company
of any Acquisition Proposal (as defined in Section 9.7(a)) or any change in the
recommendation of the Board
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of Directors of the Company approving the Offer, the Merger, this Merger
Agreement and the Stockholder Agreement.
(b) The Company will, at Purchaser's request, prepare and file
a preliminary Proxy Statement with the SEC and will use its best efforts to
respond to any comments of the SEC or its staff and to cause the Proxy Statement
to be mailed to the Company's stockholders as promptly as practicable after
responding to all such comments to the satisfaction of the staff. The Company
will notify Purchaser promptly of the receipt of any comments from the SEC or
its staff and of any requests by the SEC or its staff for amendments or
supplements to the Proxy Statement or for additional information and will supply
Purchaser with copies of all correspondence between the Company or any of its
representatives, on the one hand, and the SEC or its staff, on the other hand,
with respect to the Proxy Statement or the Merger. If at any time prior to the
meeting there shall occur any event that should be set forth in an amendment or
supplement to the Proxy Statement, the Company will promptly prepare and mail to
its stockholders such an amendment or supplement. The Company will not mail any
Proxy Statement, or any amendment or supplement thereto, to which Purchaser
reasonably objects.
Section 4.4 Dissenting Shares. Sections 910 and 623 of the BCL
provide dissenter's rights in connection with the Merger to the stockholders of
the Company. Notwithstanding anything in this Merger Agreement to the contrary,
any issued and outstanding shares of Company Common Stock held by a person (a
'Dissenting Stockholder') who objects to the Merger and complies with all the
provisions of the BCL concerning the right of holders of Company Common Stock to
dissent from the Merger and require appraisal of their shares of Company Common
Stock ('Dissenting Shares') shall not be converted as described in Section
4.1(c) but shall become the right to receive such consideration as may be
determined to be due to such Dissenting Stockholder pursuant to the laws of the
State of New York; provided, however, that the shares of Company Common Stock
outstanding immediately prior to the Effective Date and held by a Dissenting
Stockholder who shall, after the Effective Date, withdraw his demand for
appraisal or lose his right of appraisal, in either case pursuant to the BCL,
shall be deemed to be converted as of the Effective Date, into the right to
receive the Merger Price. The Company shall give Purchaser (i) prompt notice of
any demands for appraisal of shares of Company Common Stock received by the
Company and (ii) the opportunity to participate in and direct all negotiations
and proceedings with respect to any such demands. The Company shall not, without
the prior written consent of Purchaser make any payment with respect to, or
settle, offer to settle or otherwise negotiate, any such demands.
Section 4.5 Closing of the Company's Transfer Books. At the
Effective Date, each holder of a Certificate(s) theretofore representing shares
of Company Common Stock shall cease to have any rights as a stockholder of the
Company and shall not be deemed to be a stockholder of, or be entitled to any
rights of a stockholder with respect to, the Surviving
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Corporation but thereafter shall have only the rights set forth in Sections 4.1,
4.2, 4.3 and 4.4. At the Effective Date, the stock transfer books of the Company
shall be closed and no transfer of shares of Company Common Stock shall be made
thereafter. In the event that, after the Effective Date, Certificates are
presented to the Surviving Corporation, they shall be cancelled and exchanged
for cash as provided in Section 4.1.
Section 4.6 Assistance in Consummation of the Merger.
Purchaser, Sub and the Company shall provide all reasonable assistance to, and
shall cooperate with, each other to bring about the consummation of the Merger
as soon possible in accordance with the terms and conditions of this Merger
Agreement.
Section 4.7 Closing. The closing of the Merger (the 'Closing')
shall take place at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue,
New York, NY 10019, at 9:00 a.m. local time on a date to be specified by the
parties which, subject to the satisfaction of the conditions set forth in
Article X, shall be no later than the third business day after the day on which
the last of the conditions set forth in Article X is fulfilled or waived or at
such other time and place as Purchaser and the Company shall agree in writing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND SUB
Section 5.1 Representations and Warranties of the Purchaser and
Sub. The Purchaser and Sub represent and warrant to the Company that the
representations and warranties of Purchaser and Sub contained in this Merger
Agreement are correct and complete.
Section 5.2 Organization. Each of the Purchaser and Sub is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority to carry on its business as now being conducted.
Section 5.3 Capitalization of Sub. The entire authorized
capital stock of Sub consists of 1,000 shares of common stock, without par
value. All of the issued and outstanding capital stock of Sub has been duly
authorized and is validly issued, fully paid and nonassessable and is owned by
Purchaser.
Section 5.4 Authorization of Transaction. Each of Purchaser and
Sub has full power and authority (including full corporate power and authority)
to execute and deliver this Merger Agreement and to perform its obligations
hereunder. The execution and delivery of this Merger Agreement and the
consummation of the transactions contemplated by this Merger
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Agreement have been duly authorized by all necessary corporate action on the
part of Purchaser and Sub. This Merger Agreement has been duly executed and
delivered by each of Purchaser and Sub and constitutes the valid and legally
binding obligation of Purchaser and Sub, enforceable in accordance with its
terms and conditions. Other than in connection with the provisions of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the 'HSR
Act'), the BCL, the Securities Exchange Act, the Securities Act of 1933, as
amended (the 'Securities Act'), and the state securities laws, neither Purchaser
nor Sub needs to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any Governmental Entity in order for the
parties to consummate the transactions contemplated by this Merger Agreement,
except to the extent such failure to give notice to file or to obtain any
authorization, consent or approval would not (i) materially impair the ability
of Purchaser or Sub to perform its obligations under this Merger Agreement or
(ii) prevent the consummation of the Offer, the Merger or the other transactions
contemplated by this Merger Agreement (a 'Purchaser Material Adverse Effect').
Section 5.5 Noncontravention. Neither the execution and the
delivery of this Merger Agreement, nor the consummation of the transactions
contemplated hereby, nor compliance with the provisions hereof will (a) violate
any statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge, or other restriction of any Governmental Entity to which Purchaser or
Sub is subject, (b) violate any provision of the charter or By-Laws of Purchaser
or Sub or (c) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, give rise to a material loss under or create in
any party a material benefit or the right to accelerate, terminate, modify, or
cancel, or require any notice under any contract, lease, sublease, license,
franchise, permit, indenture, agreement or mortgage for borrowed money,
instrument of indebtedness, security interest, or other obligation to which
Purchaser or Sub is a party or by which either is bound or to which any of its
assets is subject, except to the extent such violation, conflict, breach,
default, acceleration, loss, benefit, termination, modification, cancellation or
failure to give notice would not have a Purchaser Material Adverse Effect.
Section 5.6 Brokers' Fees. Neither Purchaser nor Sub has any
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Merger Agreement for
which any of the Company or its subsidiaries could become liable or obligated
prior to the consummation of the Merger.
Section 5.7 Disclosure. None of the information supplied or to
be supplied by Purchaser or Sub for inclusion or incorporation by reference in
the Offer Documents, the Schedule 14D-9, the Information Statement (as defined
in Section 6.25) or the Proxy Statement will, in the case of the Offer
Documents, the Schedule 14D-9 and the Information Statement, at the respective
times the Offer Documents, the
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Schedule 14D-9 and the Information Statement are filed with the SEC or first
published, sent or given to the Company's stockholders, or, in the case of the
Proxy Statement, at the date the Proxy Statement is first mailed to the
Company's stockholders or at the time of the meeting of the Company's
stockholders held to vote on approval and adoption of this Merger Agreement,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Offer Documents will comply as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation or warranty is made by
Purchaser or Sub with respect to statements made or incorporated by reference
therein based on information supplied by the Company for inclusion or
incorporation by reference therein.
Section 5.8 Financing. The Purchaser will have, as of the date
of consummation of the Offer, cash, cash equivalent assets and/or financing in
an amount sufficient to consummate the Offer and the Merger, assuming the
conditions set forth in the commitment letter referred to in the next sentence
are satisfied. Purchaser has provided the Company with a commitment letter from
Chemical Bank dated October 20, 1994, as supplemented by a letter dated October
27, 1994, pursuant to which the Purchaser intends to obtain financing for the
consummation of the Offer and the Merger. Purchaser acknowledges that obtaining
the financing referred to in the commitment letter described in the preceding
sentence is not a condition to Purchaser's obligations under this Merger
Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 6.1 Representations and Warranties of the Company. The
Company represents and warrants to Purchaser and Sub that the representations
and warranties of the Company contained in this Merger Agreement are correct and
complete. The disclosure schedule delivered by the Company to Purchaser and Sub
concurrent with the execution of this Merger Agreement and which constitutes a
part of this Merger Agreement (the 'Disclosure Schedule') will be arranged in
paragraphs corresponding to the lettered and numbered paragraphs contained in
this Article VI. For purposes of this Merger Agreement, the terms 'Material
Adverse Change' and 'Material Adverse Effect' mean any change, effect or
circumstance (or any development that, insofar as can reasonably be foreseen, is
likely to result in any change, effect or circumstance) that (i) is materially
adverse to the business, properties, assets, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole,
(ii) would materially impair the ability of the Company to perform its
obligations under this Merger Agreement or (iii) would prevent the consummation
of the Offer, the Merger or
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the other transactions contemplated by this Merger Agreement, provided, however,
that changes resulting from automotive industry conditions generally or general
economic conditions shall not constitute a Material Adverse Effect or a Material
Adverse Change. Any qualification to any representation or warranty of the
Company herein to the effect that any exception to such representation or
warranty has not, does not, or would not have a Material Adverse Effect shall be
deemed to mean that such exception, together with similar exceptions to all
other representations and warranties of the Company that are so qualified, has
not, does not, or would not have a Material Adverse Effect.
Section 6.2 Organization, Qualification, Corporate Power and
Subsidiaries. (a) Each of the Company and its subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. Each of the Company and its subsidiaries is
duly authorized to conduct business and is in good standing under the laws of
each jurisdiction in which the nature of its businesses or the ownership or
leasing of its properties requires such qualification, except where the lack of
such qualification would not have a Material Adverse Effect. Each of the Company
and its subsidiaries has full corporate power and authority to carry on the
business in which it is engaged and to own and use the properties owned and used
by it.
(b) The Disclosure Schedule lists each subsidiary of the
Company. All the outstanding shares of capital stock of each such subsidiary
have been validly issued and are fully paid and nonassessable and, except as set
forth in the Disclosure Schedule, are owned by the Company, by another
subsidiary of the Company, by the Company and another subsidiary or by two
subsidiaries of the Company, all as set forth in the Disclosure Schedule, free
and clear of all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever (collectively, 'Liens'). Except for
the capital stock of its subsidiaries and except for the other ownership
interests set forth in the Disclosure Schedule, the Company does not own,
directly or indirectly, any capital stock or other ownership interest in any
corporation, partnership, joint venture or other entity.
Section 6.3 Capitalization. The entire authorized capital stock
of the Company consists of 2,700,000 shares of Company Common Stock. As of the
date of this Merger Agreement, 1,878,629 shares of Company Common Stock are
issued and outstanding and 821,371 shares of Company Common Stock are held by
the Company in its treasury. Of the shares of Company Common Stock held by the
Company in its treasury on the date of this Merger Agreement, 197,780 shares are
reserved for issuance upon the exercise of Stock Options (as defined in Section
9.3(c)) and 623,591 shares are reserved for issuance upon exercise by Purchaser
of the Option (as defined in Section 7.1). There are no authorized but unissued
shares of Company Common Stock. All of the issued and outstanding shares of
Company Common Stock and
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the shares of Company Common Stock which may be sold pursuant to the exercise of
Stock Options or the Option have been duly authorized and are (or, in the case
of shares which may be sold pursuant to the exercise of Stock Options or the
Option, will be when so sold) validly issued, fully paid, and nonassessable.
Except for the Option and grants of Stock Options under the 1990 Incentive Plan,
there are no outstanding or authorized options, warrants, rights, contracts,
calls, puts, rights to subscribe, conversion rights, or other agreements or
commitments to which the Company is a party or which are binding upon the
Company providing for the issuance, disposition, redemption, repurchase or
acquisition of any of its capital stock. Except for grants of SARs (as defined
in Section 9.3) under the 1990 Incentive Plan, there are no outstanding or
authorized stock appreciation, phantom stock, business performance units or
similar rights ('Stock Equivalents') with respect to the Company or any of its
subsidiaries.
Section 6.4 Authorization of Transaction. The Company has full
corporate power and authority to execute and deliver this Merger Agreement,
grant the Option and perform its obligations hereunder; provided, however, that
the Company cannot consummate the Merger unless and until it receives the
requisite Company stockholder approval under the BCL and the Company's
Certificate of Incorporation if such approval is required under the BCL. This
Merger Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms and conditions. To the
knowledge of the Company, other than in connection with the provisions of the
HSR Act, the BCL, the Securities Exchange Act, the Securities Act, and the state
securities laws, none of the Company and its subsidiaries needs to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any Governmental Entity in order for the parties hereto to
consummate the transactions contemplated by this Merger Agreement, except to the
extent the failure to give notice, to file, or to obtain any authorization,
consent, or approval would not have a Material Adverse Effect.
Section 6.5 Noncontravention. Except as set forth on the
Disclosure Schedule, to the knowledge of the Company, neither the execution and
the delivery of this Merger Agreement, nor the consummation of the transactions
contemplated hereby, nor compliance with the provisions hereof, will (a) violate
any statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge, or other restriction of any Governmental Entity to which any of the
Company and its subsidiaries is subject, (b) violate any provision of the
charter or By-Laws of any of the Company or any of its subsidiaries or (c)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, give rise to a material loss under, create in any party a
material benefit under or the right to accelerate, terminate, modify, or cancel,
or require any notice under any contract, lease, sublease, license, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument
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of indebtedness, security interest, or other obligation to which any of the
Company and its subsidiaries is a party or by which it is bound or to which any
of its assets is subject (or result in the imposition of any security interest
upon any of its assets) except to the extent the violation, conflict, breach,
default, acceleration, loss, benefit, termination, modification, cancellation or
failure to give notice would not have a Material Adverse Effect.
Section 6.6 Filings with the Securities and Exchange
Commission. The Company has made all filings with the SEC that it has been
required to make within the past three years under the Securities Act and the
Exchange Act and the rules and regulations promulgated thereunder (collectively
the 'Public Reports'). To the knowledge of the Company, each of the Public
Reports has complied with the Securities Act and the Exchange Act, respectively,
and the rules and regulations promulgated thereunder in all material respects.
None of the Public Reports, as of their respective dates, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. Except to the extent that information
contained in any Public Report has been revised or superseded by a later-filed
Public Report, none of the Public Reports contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 6.7 Financial Statements. The Company has filed a
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 1994
(the 'Most Recent Fiscal Quarter End'), and an Annual Report on Form 10-K for
the fiscal year ended December 31, 1993. The financial statements included in or
incorporated by reference into these Public Reports (including the related notes
and schedules) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered thereby, and present fairly in all material respects the consolidated
financial condition of the Company and its subsidiaries as of the indicated
dates and the results of operations and cash flows of the Company and its
subsidiaries for the indicated periods; provided, however, that the interim
statements are subject to normal year-end adjustments.
Section 6.8 Undisclosed Liabilities; Aggregate Indebtedness;
Fees. (a) Except as set forth or referred to in the Public Reports or on the
Disclosure Schedule, neither the Company nor any of its subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise), except for any liabilities or obligations (including any
liabilities or obligations that have arisen in the ordinary course of business)
which, individually or in the aggregate, have not had and would not have a
Material Adverse Effect.
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(b) The aggregate indebtedness of the Company and its
subsidiaries as of the date of this Merger Agreement does not and as of the
Effective Date will not exceed $53,000,000.
(c) Other than the fees, costs and expenses described in the
Disclosure Schedule, the aggregate fees, costs and expenses to be incurred by
the Company or any of its subsidiaries in connection with the Offer, the Merger,
and the other transactions contemplated by this Merger Agreement shall not
exceed $1,500,000 plus the fees and expenses payable to Goldman Sachs & Co.
pursuant to the agreement referred to in Section 6.15. The Disclosure Schedule
sets forth the calculation of the fee payable to Goldman, Sachs & Co. pursuant
to such agreement if the Offer and the Merger are consummated as provided
herein.
Section 6.9 Absence of Certain Changes. Except as disclosed in
the Public Reports or on the Disclosure Schedule, since December 31, 1993, the
Company and its subsidiaries have conducted their respective businesses in the
ordinary and usual course of such businesses and there has not been (i) any
declaration, setting aside or payment of any dividend or other distribution with
respect to its capital stock, (ii) any change by the Company in accounting
principles, practices or methods (except as required by changes in generally
accepted accounting principles concurred in by the Company's independent
auditors), (iii) any split, combination or reclassification of any of the
Company Common Stock or any issuance or the authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for shares of the
Company Common Stock, (iv) any granting by the Company or any of its
subsidiaries of any increase in compensation or in severance or termination pay,
except for (x) increases in the ordinary course of business consistent with
prior practice and (y) increases required under employment or severance
agreements listed in the Disclosure Schedule, (v) any entry (except as set forth
in the Disclosure Schedule) by the Company or any of its subsidiaries into any
employment, severance or termination agreement with any employee, (vi) any
damage, destruction or loss, whether or not covered by insurance, except for
such damage, destruction or loss that would not have a Material Adverse Effect
or (vii) any other changes which, individually or in the aggregate, have had a
Material Adverse Effect.
Section 6.10 Compliance with Laws. Except as disclosed in the
Public Reports or in the Disclosure Schedule or for matters relating to
Environmental Laws (as defined in Section 7.14), each of the Company and each
subsidiary has previously conducted and is conducting its respective business in
compliance with all applicable laws, regulations and requirements of each
jurisdiction in which such business is carried on, except for failures to comply
which individually or in the aggregate have not had and would not have a
Material Adverse Effect. Each of the Company and each subsidiary has all
approvals, consents, licenses, registrations and permits of Governmental
Entities necessary to carry on its business as presently conducted, except
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where the failure to have any such approvals, consents, licenses, registrations
and permits would not have a Material Adverse Effect, and no event has occurred
which would allow revocation or termination of, or would result in the
impairment of its rights with respect to, such approvals, consents, licenses,
registrations or permits, except to the extent such revocation, termination or
impairment has not had and would not have a Material Adverse Effect.
Section 6.11 Tax Returns and Audits.
(a) The Company and its subsidiaries have timely filed, or
timely requested an extension of, all Federal Income Tax Returns and all other
material returns, declarations, reports, estimates, information returns and
statements ('Returns') required to be filed or sent by them in respect of any
Taxes (as hereinafter defined). All such Returns were complete and correct in
all material respects at the time of filing.
(b) All Taxes required to be shown on such Returns (without
regard to extensions), and all material Taxes for which no return was required
to be filed, have been paid in full or adequate reserves have been made for any
such Taxes on the Company's balance sheet dated as of the Most Recent Fiscal
Quarter End included in the quarterly report on Form 10-Q filed by the Company
for the Most Recent Fiscal Quarter End.
(c) Except as set forth in the Disclosure Schedule, there are
no outstanding audit examinations, deficiencies or refund litigation with
respect to any Taxes of the Company or any subsidiary of the Company that are
not adequately reserved for in the Company's balance sheet dated as of the Most
Recent Fiscal Quarter End included in the Quarterly Report on Form 10-Q for the
Most Recent Fiscal Quarter End. All Taxes due with respect to completed and
settled examinations or concluded litigation relating to the Company have been
paid in full or adequate provision has been made for any such Taxes on the
Company's balance sheet (in accordance with generally accepted accounting
principles). The federal income Tax Returns of the Company and each of its
subsidiaries consolidated in such Returns have been examined by and settled with
the Internal Revenue Service for all taxable years through the taxable year
ending December 31, 1986.
For purposes of this Merger Agreement, 'Taxes' shall mean all
taxes, charges, fees, levies or other assessments, including without limitation
all net income, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, withholding payroll, employment, excise, severance,
stamp, occupation, property or other taxes, customs, duties, fees, assessments
or charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any Federal, state, local,
foreign or other authority upon the Company or any subsidiary of the Company.
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(d) Except as set forth in the Disclosure Schedule, the
disallowance of a deduction under Section 162(m) of the Code for employee
remuneration will not apply to any amount paid or payable by the Company or any
of its subsidiaries under any Arrangement, Plan or Foreign Benefit Plan (as such
terms are defined in Section 6.13), or under any other contract, program or
understanding (including any employment, severance, or termination agreement)
currently in effect.
(e) Except as set forth in the Disclosure Schedule, any amount
or other entitlement that could be received (whether in cash or property or the
vesting of property) as a result of any of the transactions contemplated by this
Merger Agreement by any employee, officer or director of the Company or any of
its subsidiaries who is a 'disqualified individual' (as such term is defined in
proposed Treasury Regulation Section 1.280G-1) under any Arrangement, Plan,
Foreign Benefit Plan, contract, program or understanding (including any
employment, severance or termination agreement) currently in effect would not be
characterized as an 'excess parachute payment' (as such term is defined in
Section 280G(b)(1) of the Code).
Section 6.12 Employee Relations. The Company has previously
made available to the Purchaser correct and complete copies of all labor and
collective bargaining agreements to which the Company or any subsidiary is a
party or by which any of them are bound. Except as set forth in the Disclosure
Schedule, no unfair labor practice charges, investigations or complaints are
pending or, to the knowledge of the Company, threatened against the Company or
any subsidiary. Except as set forth on the Disclosure Schedule, there has been
no strike, slowdown or work stoppage during the last five years and no strike,
slowdown, work stoppage or other labor controversy exists or, to the knowledge
of the Company, is threatened, except to the extent such strike, slowdown, work
stoppage or controversy has not had and would not have a Material Adverse
Effect.
Section 6.13 Employee Benefit Plans.
(a) Definitions. For purposes of this Section 6.13:
(i) Arrangements. The term 'Arrangement' means any
material written personnel policy (including, but not limited to, vacation time,
holiday pay, bonus programs, moving expense reimbursement programs and sick
leave), salary reduction agreement, change-in-control agreement, employment
agreement, stock option plan, consulting agreement or any other material written
benefit program, agreement or contract, other than a Plan or Foreign Benefit
Plan, (1) that currently is being maintained for current or former employees of
the Company, a subsidiary of the Company, or of any Control Group member or (2)
to which the Company, a subsidiary of the Company or any Control Group member
currently makes or is required to make contributions.
(ii) Foreign Benefit Plans. The term 'Foreign Benefit
Plans' means any pension, profit-sharing, stock bonus,
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supplemental retirement, retiring allowance, severance, deferred compensation,
stock purchase, payroll savings or supplementary unemployment benefit plan, any
life, health, insurance, dental, legal, disability, or welfare benefit plan,
program or arrangement and any personnel policy, salary reduction agreement,
change-in-control agreement, employment agreement, stock option plan or
consulting agreement, or any other plan, program, or arrangement, that is
maintained for current or former employees of the Company, a subsidiary of the
Company, or a Control Group member who are not employed in the United States.
(iii) Plan. The term 'Plan' means each employee
benefit plan as defined in Section 3(3) of ERISA (other than a Multiemployer
Plan and other than a Foreign Benefit Plan) (1) that currently is maintained for
current or former employees of the Company, a subsidiary of the Company or any
Control Group member or (2) to which the Company, a subsidiary of the Company,
or any Control Group member currently makes or is required to make
contributions.
(iv) Qualified Plan. The term 'Qualified Plan' means
any Plan that is an employee pension benefit plan as defined in Section 3(2) of
ERISA and that is intended to meet the qualification requirements of Section
401(a) of the Code.
(v) Title IV Plan. The term 'Title IV Plan' means any
Qualified Plan that is a defined benefit plan (as defined in Section 3(35) of
ERISA) and is subject to Title IV of ERISA.
(vi) Multiemployer Plan. The term 'Multiemployer
Plan' means any employee benefit plan that is a 'multiemployer plan' within the
meaning of Section 3(37) of ERISA and to which the Company, a subsidiary of the
Company or any Control Group member currently has or ever has had any obligation
to contribute.
(vii) Control Group. The term 'Control Group' means a
controlled group of persons that, together with the Company, is treated as a
single employer under Section 414(b), (c), (m), or (o) of the Code.
(viii) ERISA. The term 'ERISA' means the Employee
Retirement Income Security Act of 1974, as amended.
(ix) Code. The term 'Code' means the Internal Revenue
Code of 1986, as amended.
(x) PBGC. The term 'PBGC' means the Pension Benefit
Guaranty Corporation.
(b) Arrangements, Plans and Foreign Benefit Plans Listed. The
Disclosure Schedule sets forth a correct and complete list of all Plans that are
'pension benefit plans' as defined in Section 3(2) of ERISA; welfare benefit
plans as defined in Section 3(l) of ERISA providing medical, surgical or
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hospital care benefits or benefits in the event of sickness, accident,
disability, death or unemployment; all Foreign Benefit Plans; and all
Arrangements.
(c) Operations of Arrangements, Plans and Foreign Benefit
Plans. (i) Except as set forth in the Disclosure Schedule, each Arrangement,
Plan and Foreign Benefit Plan is being administered in material compliance with
its terms. Except as set forth in the Disclosure Schedule, to the knowledge of
the Company, (x) all the Plans, Foreign Benefit Plans and Arrangements thereof
are in compliance in all material respects with applicable provisions of ERISA,
the Code, and all other applicable Federal, state, county, municipal, local and
foreign laws, (y) all reports, returns and similar documents with respect to the
Plans, Foreign Benefit Plans and Arrangements required to be filed with any
Governmental Entity or distributed to any Plan, Foreign Benefit Plan or
Arrangement participant have been duly and timely filed or distributed and (z)
all reports, returns and similar documents actually filed or distributed were
true, complete and correct in all material respects. Except as set forth in the
Disclosure Schedule, all Plans that are welfare benefit plans may be amended or
terminated without material liability to the Company or any of its subsidiaries
at any time after the Effective Date.
(ii) Except as set forth in the Disclosure Schedule,
no action is pending or, to the knowledge of the Company, is threatened against
the Company, any subsidiary of the Company, any Control Group member, or any
fiduciary of an Arrangement or Plan, with respect to any Arrangement or Plan.
(iii) Except as set forth in the Disclosure Schedule,
neither the Company, nor any subsidiary of the Company, nor any other Control
Group member, nor any of their respective directors or their respective
employees, nor any fiduciary, has engaged in any transaction in violation of
Section 406(a) or (b) of ERISA or that is a 'prohibited transaction' (as defined
in Section 4975(c)(1) of the Code) for which no exemption exists under Section
408(b) of ERISA or Section 4975(d) of the Code or for which no administrative
exemption has been granted under Section 408(a) of ERISA that could subject the
Company, any subsidiary of the Company, or other Control Group member to a Tax
or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA
in an amount that would reasonably be likely to have a Material Adverse Effect.
Except as set forth in the Disclosure Schedule, no Plan has been terminated or
has been the subject of a 'reportable event' (as defined in Section 4043 of
ERISA and the regulations thereunder).
(iv) Except as set forth in the Disclosure Schedule,
no liability to the PBGC has been incurred or is expected to be incurred by the
Company, any subsidiary of the Company, or any other Control Group member with
respect to any Title IV Plan currently or formerly maintained by the Company,
any subsidiary of the Company, or any other Control Group member, other than
premium payment obligations. The PBGC has not
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instituted any proceedings, and there exists no event or condition that would
constitute grounds for institution of proceedings by the BGC, to terminate
any Title IV Plan under Sections 4042(a)(1), (2) or (3) of ERISA.
(v) Each Qualified Plan (together with its related
funding instrument) is intended to be qualified and tax exempt under Sections
401 and 501 of the Code and is the subject of a favorable Internal Revenue
Service determination with respect to such qualification and exemption;
provided, however, that no applications have yet been made for determinations
with respect to qualification under provisions of the Tax Reform Act of 1986 and
subsequent legislation. No such determination letter has been revoked, and, to
the knowledge of the Company, revocation has not been threatened; no event has
occurred and no circumstances exist that would reasonably be expected to
adversely affect the tax-qualification of such Qualified Plan; and such
Qualified Plan has not been amended since the effective date of its most recent
determination letter in any respect that might adversely affect its
qualification or require security under Section 307 of ERISA. No event has
occurred that could subject any Qualified Plan to Tax under Section 511 of the
Code.
(vi) To the knowledge of the Company and except as
set forth in the Disclosure Schedule, the Company has not received notice that
any material inquiry or investigation by the Department of Labor, the Internal
Revenue Service, or the PBGC (or any equivalent foreign authority) is pending
relating to any Plan, Foreign Benefit Plan or Arrangement, including any trust
related thereto or funding medium thereunder.
(vii) Except as set forth in the Disclosure Schedule
or as contemplated in this Merger Agreement, there are no Plans or Arrangements
to which the Company, any subsidiary of the Company, or any Control Group member
is a party or by which any of them is bound and under which, as a result of this
Merger Agreement or any transaction, contemplated by this Merger Agreement, any
director, officer, employee, or other agent of the Company, any subsidiary of
the Company, or any other Control Group member or any other party claiming
through such a person shall or may acquire rights with respect to any Plan or
Arrangement (including, without limitation, the creation, increase, or extension
of new or existing rights) that such person would not have acquired if this
Merger Agreement had not been signed or such transaction had not occurred, or
become entitled to a distribution or payment with respect to any Plan or
Arrangement at a date earlier than if this Merger Agreement had not been signed
or such transaction had not occurred.
(d) Arrangement, Plan and Foreign Benefit Plan Documents and
Records. The Company has provided or will undertake to provide complete copies
of the following documents, including all amendments thereto, with respect to
each Arrangement, Plan or Foreign Benefit Plan: (i) current Plan, Foreign
Benefit Plan or Arrangement documents, trust agreements, insurance contracts,
annuity contracts, funding agreements,
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summary plan descriptions, investment manager and investment adviser contracts
and to the extent applicable, Internal Revenue Service determination letters (or
equivalent foreign documentation), and (ii) to the extent applicable, the annual
actuarial reports as of January 1, 1991, January 1, 1992 and January 1, 1993,
and Annual Reports (Form 5500)(or equivalent foreign documentation) for the 1991
and 1992 plan years.
(e) Finances.
(i) Except as set forth in the Disclosure Schedule,
no Title IV Plan had an accumulated funding deficiency (as such term is defined
in Section 302 of ERISA) as of the last day of the most recent plan year of such
Plan ended prior to the date hereof. Except as set forth in the Disclosure
Schedule, as of the most recent valuation date for each Title IV Plan, there was
not any amount of 'unfunded benefit liabilities' (as defined in Section
4001(a)(18) of ERISA) under such Title IV Plan, and the Company is not aware of
any facts or circumstances that would materially change the funded status of any
such Title IV Plan.
(ii) All contributions payable to each Qualified Plan
that is not a Title IV Plan for all benefits earned and other liabilities
accrued through December 31, 1993, determined in accordance with the terms and
conditions of such Qualified Plan, ERISA and the Code, have been paid or
otherwise provided for. All such contributions to, and payments from, the
Qualified Plans, except those payments to be made from a trust qualified under
Section 401(a) of the Code, for any period ending before the Effective Date that
are not yet, but will be, required to be made, will be properly made up to and
including the Effective Date.
(iii) No waiver from the minimum funding standard
requirements of Section 302 of ERISA and Section 412 of the Code has been
obtained or applied for or is contemplated with respect to any Title IV Plan.
(f) Multiemployer Plans. Neither the Company, nor any
subsidiary of the Company, nor any Control Group member has had any obligation
to contribute to any Multiemployer Plan since January 1, 1980.
Section 6.14 Environmental Matters.
(a) Except as set forth on the Disclosure Schedule or in the
Public Reports, to the knowledge of the Company, the Company and each subsidiary
of the Company are in compliance with all applicable Federal, foreign, state and
local laws, rules and regulations, court and administrative orders, permits and
approvals relating to the release of chemicals, pollutants or contaminants
(collectively, 'Environmental Laws'), except for such non-compliance as has not
and would not in the aggregate be reasonably likely to have a Material Adverse
Effect. Environmental Laws include, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act
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('CERCLA'), the Resource Conservation and Recovery Act ('RCRA'), the Clean Air
Act, the Clean Water Act, the Toxic Substances Control Act, the Emergency
Planning and Community Right-to-Know Act of 1986, the Occupational Safety and
Health Act, the Safe Drinking Water Act, together with all rules and regulations
promulgated thereunder and any similar state, local or foreign laws, rules and
regulations.
(b) Except as set forth on the Disclosure Schedule, to the
knowledge of the Company, neither the Company nor any subsidiary of the Company
has received any claim, demand, notice, complaint, court order, administrative
order or request for information from any Governmental Entity or private party
in the past five years alleging violation of, or asserting any non-compliance
with or liability under or potential liability under or exceedance under, any
Environmental Laws by it.
(c) Except as set forth on the Disclosure Schedule, to the
knowledge of the Company, each of the Company and each subsidiary of the Company
possesses all material permits, licenses, orders, consents and approvals of
Governmental Entities required under all Environmental Laws and necessary to the
ownership of the properties, and to the conduct of the business of the Company
and each of its subsidiaries (collectively 'Environmental Permits'), and the
consummation of the Offer and the Merger will not result in any loss or
revocation of or limitation on any such Environmental Permit.
(d) Except as set forth on the Disclosure Schedule, to the
knowledge of the Company, (i) neither the Company nor any subsidiary of the
Company has transported, or arranged for the transportation of, any Hazardous
Materials to any site which is the subject of Federal, foreign, state or local
environmental enforcement actions, or other governmental environmental
investigations about which the Company has been notified in writing, and (ii)
except in accordance with applicable law, neither the Company nor any subsidiary
of the Company nor any other party has treated, stored for more than 90 days,
disposed of or recycled any Hazardous Materials on any real property owned,
leased or operated by the Company or any subsidiary of the Company at any time,
except in the case of clauses (i) and (ii) above for such transportation,
arrangement for transportation, release, treatment, storage, disposal or
recycling as has not and would not in the aggregate would be reasonably likely
to have a Material Adverse Effect.
(e) Except as set forth on the Disclosure Schedule, to the
knowledge of the Company, there has been no release, as defined in Environmental
Laws, of Hazardous Materials at, on, under or adjacent to any property currently
or formerly owned, leased or operated by the Company or any of its subsidiaries
that, individually or in the aggregate, would be reasonably likely to have a
Material Adverse Effect.
For purposes of this Section 6.14, 'Hazardous Materials' are
any materials containing any (i) 'hazardous
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substances' as defined by CERCLA or any similar applicable state or foreign law,
(ii) petroleum, including crude oil or any fraction thereof, (iii) natural gas,
natural gas liquids or synthetic gas usable fuel, and (iv) asbestos,
polychlorinated biphenyls ('PCBs') or isomers of dioxin.
(f) The Disclosure Schedule identifies all environmental
audits, assessments or studies within the possession of the Company or any
subsidiary of the Company with respect to the facilities or real property owned,
leased or operated by the Company or any subsidiary of the Company, which were
conducted within the last five years. The Company has previously furnished to
Purchaser complete and correct copies of all such audits, assessments and
studies.
Section 6.15 Broker's Fees. None of the Company and its
subsidiaries has any liability or obligation to pay any fees or commissions to
any broker, finder, or agent with respect to the transactions contemplated by
this Merger Agreement except for the fees of Goldman, Sachs & Co. provided for
in an agreement between the Company and Goldman, Sachs & Co. dated June 27,
1994, a complete and correct copy of which has been delivered to Purchaser.
Section 6.16 Takeover Provisions Inapplicable. As of the date
hereof and at all times on or prior to the Effective Date, Section 912 of the
BCL is, and shall be, inapplicable to the Offer, Merger and the transactions
contemplated by this Merger Agreement. The Board of Directors of the Company, at
a meeting duly called and held, has by the vote required by applicable law, (a)
taken any necessary steps to render Section 912 of the BCL inapplicable to the
Offer, the Merger and the transactions contemplated by this Merger Agreement and
(b) adopted a resolution having the effect of causing the Company not to be
subject, to the extent permitted by applicable law, to any state takeover law
that may purport to be applicable to the Offer, the Merger and the transactions
contemplated by this Merger Agreement.
Section 6.17. Voting Requirements. The affirmative vote of the
holders of two-thirds of the outstanding shares of Company Common Stock
approving this Merger Agreement is the only vote of the holders of any class or
series of the Company's capital stock necessary to approve this Merger
Agreement, and the transactions contemplated by this Merger Agreement.
Section 6.18. Opinion of Financial Advisor. The Company has
received the opinion of Goldman, Sachs & Co., to the effect that, as of the date
of this Merger Agreement, the consideration to be received in the Offer and the
Merger by the Company's stockholders is fair to the Company's stockholders from
a financial point of view, subject to only customary qualifications.
Section 6.19. Contracts; Debt Instruments. (a) Set forth in the
Disclosure Schedule is (i) a list of all loan or
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credit agreements, notes, bonds, mortgages, indentures and other agreements and
instruments pursuant to which any indebtedness of the Company or any of its
subsidiaries in an aggregate principal amount in excess of $500,000 is
outstanding or may be incurred, indicating the respective principal amounts
outstanding thereunder as of September 30, 1994, (ii) a list of all leases or
similar agreements under which (A) the Company or any of its subsidiaries is a
lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible
personal property owned by a third party or (B) the Company or any of its
subsidiaries is a lessor or sublessor of, or makes available for use by any
third party, any tangible personal property owned or leased by the Company or
any of its subsidiaries, in each such case which has an aggregate future
liability in excess of $100,000 and is not terminable by notice of not more than
60 days for a cost of less than $100,000, (iii) a list of all employment,
severance, consulting, indemnification, change of control and other compensation
contracts between the Company or any of its subsidiaries and any current or
former director, officer or employee thereof, (iv) all agreements of the Company
or any of its subsidiaries containing an unexpired covenant not to compete or
similar restriction applying to the Company or any of its subsidiaries, (v) any
interest rate, currency or commodity hedging, swap or similar derivative
transaction, (vi) all agreements (other than purchase orders obtained by the
Company or any of its subsidiaries in the ordinary course of business) between
the Company or any of its subsidiaries and customers in the original equipment
market, (vii) all other material agreements between the Company and its
subsidiaries and any customers with respect to price concessions, price rebates,
repricing or similar arrangements and (viii) all agreements of the Company or
any of its subsidiaries to sell any material assets of the Company or any such
subsidiary (other than inventory sold in the ordinary course) or to acquire any
material assets (other than raw materials purchased in the ordinary course of
business or the capital expenditures and customer rebillable tooling set forth
in the Disclosure Schedule).
(b) Except as set forth in the Disclosure Schedule, each of the
agreements listed in the Disclosure Schedule is a valid and binding obligation
of the Company or its subsidiary, as the case may be, and, to the Company's
knowledge, of each other party thereto, and each such agreement is in full force
and effect and is enforceable by the Company or its subsidiary in accordance
with its terms. There are no existing defaults (or circumstances or events that,
with the giving of notice or lapse of time or both would become defaults) of the
Company or any of its subsidiaries (or, to the knowledge of the Company, any
other party thereto) under any of the agreements listed in the Disclosure
Schedule except for defaults that have not and would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 6.20. Litigation. Except as disclosed in the Disclosure
Schedule, there is no suit, action, investigation or proceeding pending or, to
the knowledge of the Company,
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threatened against the Company or any of its subsidiaries or directly affecting
the business of the Company or any of its subsidiaries (and the Company is not
aware of any fact or circumstance that is reasonably likely to result in any
such suit, action or proceeding), except for such suits, actions, investigations
and proceedings, which, individually or in the aggregate, would not, if decided
adversely to the Company or any its subsidiaries, have a Material Adverse
Effect, nor is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against the Company or any of its
subsidiaries except such as do not and would not have a Material Adverse Effect.
Section 6.21 Title to Properties. (i) Except as set forth in
the Disclosure Schedule, each of the Company and each of its subsidiaries has
good and marketable title to, or valid leasehold interests in, all its
properties and assets except for such as are no longer used or useful in the
conduct of its businesses or as have been disposed of for fair value in the
ordinary course of business and except for defects in title, easements,
restrictive covenants and similar encumbrances or impediments that, in the
aggregate, do not and will not materially interfere with its ability to conduct
its business as currently conducted. All such assets and properties, other than
assets and properties in which the Company or any of its subsidiaries has
leasehold interests, are free and clear of all Liens other than those set forth
in the Disclosure Schedule and except for Liens that, in the aggregate, do not
and will not materially interfere with the ability of the Company and its
subsidiaries to conduct business as currently conducted.
(ii) Except as set forth in the Disclosure Schedule, each of
the Company and each of its subsidiaries has complied in all material respects
with the terms of all material leases to which it is a party, and all such
leases are in full force and effect. Each of the Company and each of its
subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
Section 6.22 Intellectual Property. To the knowledge of the
executive officers of the Company, the Company and its subsidiaries own, or are
valid licensees of or otherwise have the right to use, all patents, patent
rights, patent applications, inventions, designs, trademarks, trademark rights,
trademark applications, trade names, trade name rights, service marks, service
mark rights, service mark applications, copyrights and other proprietary
intellectual property rights and computer programs (collectively, 'Intellectual
Property Rights') which are material to the conduct of the business of the
Company and its subsidiaries taken as a whole, free and clear of all Liens,
except for those set forth in the Disclosure Schedule.
Section 6.23. Insurance. The Company and its Subsidiaries have
obtained and maintained in full force and effect, insurance with responsible and
reputable insurance companies or associations in such amounts, on such terms and
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covering such risks, including fire and other risks insured against by extended
coverage, as is usually carried by companies engaged in similar businesses and
owning similar properties similarly situated or otherwise required by law, and
each has maintained in full force and effect public liability insurance,
insurance against claims for personal injury or death or property damage
occurring in connection with any of activities of the Company or its
subsidiaries or any of any properties owned, occupied or controlled by the
Company or its subsidiaries, in such amount as reasonably deemed necessary by
the Company or its Subsidiaries.
Section 6.24. Disclosure. None of the information supplied or
to be supplied by the Company for inclusion or incorporation by reference in the
Offer Documents, the Schedule 14D-9, the information statement to be filed by
the Company in connection with the Offer pursuant to Rule 14f-1 promulgated
under the Exchange Act (the 'Information Statement') or the Proxy Statement,
will, in the case of the Offer Documents, the Schedule 14D-9 and the Information
Statement, at the respective times the Offer Documents, the Schedule 14D-9 and
the Information Statement are filed with the SEC or first published, sent or
given to the Company's stockholders, or, in the case of the Proxy Statement, at
the time the Proxy Statement is first mailed to the Company's stockholders or at
the time of the meeting of the Company's stockholders held to vote on approval
and adoption of this Merger Agreement, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Schedule 14D-9, the
Information Statement and the Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder, except that no representation or warranty is made by the
Company with respect to statements made or incorporated by reference therein
based on information supplied by Purchaser or Sub for inclusion or incorporation
by reference therein.
ARTICLE VII
CONTINGENT OPTION OF PURCHASER
Section 7.1. Grant of Option. The Company hereby grants to the
Purchaser an irrevocable option (the 'Option') to purchase for a price of $85.00
per share (the 'Per Share Price') in cash a number of shares of Company Common
Stock (the 'Optioned Shares') equal to the Applicable Amount. The 'Applicable
Amount' shall be the number of shares of Company Common Stock which, when added
to the number of shares of Company Common Stock owned by the Purchaser and Sub
immediately prior to its exercise of the Option, would result in Purchaser
owning immediately after its exercise of the Option 90% of the then outstanding
shares of Company Common Stock; provided that such number shall not exceed all
shares of Company Common Stock held by Company in its
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treasury. The Purchaser may exercise the Option only if at the time of exercise,
it (x) shall have accepted shares of Company Common Stock for payment pursuant
to the Offer and (y) shall own at least two-thirds of the number of shares of
Company Common Stock then outstanding. The Option shall expire if not exercised
prior to the earlier of the Effective Date and 12:00 midnight, Eastern time, on
the date 15 business days after termination of the Offer.
Section 7.2. Exercise of Option. Provided that the conditions
to exercise of the Option set forth in Section 7.1 are satisfied, the Purchaser
may exercise the Option only in whole at any time prior to the expiration of the
Option. In the event that the Purchaser wishes to exercise the Option, the
Purchaser shall give written notice (the date of such notice being herein called
the 'Notice Date') to the Company specifying the number of Optioned Shares it
will purchase pursuant to such exercise and a place and date (not later than ten
business days from the Notice Date) for the closing of such purchase.
Section 7.3. Payment of Purchase Price and Delivery of
Certificates for Optioned Shares. At any closing hereunder, (a) the Purchaser
will make payment to the Company of the full purchase price for the Optioned
Shares in New York Clearing House funds by certified or official bank check
payable to the order to Company, in an amount equal to the product of the Per
Share Price multiplied by the number of Optioned Shares being purchased at such
closing and (b) the Company will deliver to the Purchaser a duly executed
certificate or certificates representing the number of Optioned Shares so
purchased, registered in the name of the Purchaser or its nominee in the
denominations designated by the Purchaser in its notice of exercise.
Section 7.4. Securities Act. The Purchaser represents that any
Optioned Shares purchased by the Purchaser will be acquired for investment only
and not with a view to any public distribution thereof and the Purchaser will
not offer to sell or otherwise dispose of any Optioned Shares so acquired by it
in violation of the registration requirements of the Securities Act. The
certificate(s) representing the shares acquired pursuant to the exercise of the
Option will bear a legend indicating that such shares of Company Common Stock
were sold without registration under the Securities Act.
Section 7.5. Adjustment upon Changes in Capitalization. In the
event of any change in the number of outstanding shares of Company Common Stock
by reason of any stock dividend, stock split, recapitalization, combination,
exchange of shares, merger, consolidation, reorganization or the like or any
other change in the corporate or capital structure of the Company that would
have the effect of diluting the Purchaser's rights hereunder, the number of
Optioned Shares and the Per Share Price shall be adjusted appropriately so as to
restore the Purchaser to its rights hereunder with respect to the Option;
provided, however, that nothing in this Section 7.5 shall be construed as
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permitting the Company to take any action or enter into any transaction
prohibited by this Merger Agreement.
ARTICLE VIII
CONDUCT OF BUSINESS PENDING THE MERGER
Section 8.1 Conduct of Business by the Company Pending the
Merger. Prior to the Effective Date, unless Purchaser shall otherwise agree in
writing:
(a) the Company shall, and shall cause its
subsidiaries to, carry on their respective businesses in the usual,
regular and ordinary course in substantially the same manner as
heretofore conducted, and shall, and shall cause its subsidiaries
to, use their best efforts to preserve intact their present
business organizations, keep available the services of their
present officers and employees and preserve their relationships
with customers, suppliers and others having business dealings with
them;
(b) except as required by this Merger Agreement, the
Company shall not, shall not permit any of its subsidiaries to, and
shall not propose to, (i) sell or pledge or agree to sell or pledge
any capital stock owned by it in any of its subsidiaries, (ii)
amend its Certificate of Incorporation or By-Laws, (iii) split,
combine or reclassify its outstanding capital stock or issue or
authorize or propose the issuance of any other securities in
respect of, in lieu of or in substitution for shares of capital
stock of the Company, or declare, set aside or pay any dividend or
other distribution payable in cash, stock or property, (iv)
directly or indirectly redeem, purchase or otherwise acquire or
agree to redeem, purchase or otherwise acquire any shares of
Company Common Stock, any shares of capital stock of any of the
Company's subsidiaries or any other rights, interests or securities
of the Company or any of its subsidiaries or any rights, warrants
or options to acquire any such shares or other securities; (v)
issue, deliver or sell or agree to issue, deliver or sell any
additional shares of, or rights of any kind to acquire any shares
of, its capital stock of any class, or any option, rights or
warrants to acquire, or securities convertible into, shares of
capital stock other than issuance of Company Common Stock pursuant
to the exercise of the Option or Stock Options outstanding on the
date hereof and disclosed on the Disclosure Schedule, (vi) acquire,
lease or dispose or agree to acquire, lease or dispose of any
capital assets or any other assets other than sales of inventory in
the ordinary course of business consistent with past practice,
(vii) incur additional indebtedness or
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encumber or grant a security interest in any asset or enter into
any other material transaction other than short-term borrowings in
the ordinary course of business consistent with past practice which
do not result in the aggregate indebtedness of the Company and its
subsidiaries exceeding $53,000,000, (viii) make any loans or
advances to any person (other than customary travel or other
allowances to employees consistent with past practice), (ix)
terminate, alter or amend any of the agreements listed in Section
6.19 of the Disclosure Schedule or enter into any agreement which
would be required to be disclosed pursuant to such Section if
entered into on or prior to the date of this Merger Agreement, (x)
acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial equity interest in, or substantial assets
of, or by any other manner, any person, (xi) make or agree to make
any new capital expenditure or expenditures which, individually, is
in excess of $100,000 or, in the aggregate, are in excess of
$2,000,000, (xii) make or agree to make any investment in
securities other than investments in investment grade debt
securities with a maturity of less than one year in an aggregate
amount of less than $1,000,000, (xiii) make any Tax election or
settle or compromise any Tax liability, (xiv) pay, discharge or
satisfy any claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction, in the ordinary course of
business consistent with past practice or in accordance with their
terms, of liabilities reflected or reserved against in, or
contemplated by, the most recent consolidated financial statements
(or the notes thereto) of the Company included in the Public
Reports or incurred in the ordinary course of business consistent
with past practice, (xv) waive the benefits of, or agree to modify
in any manner, any confidentiality, standstill or similar agreement
to which the Company or any of its subsidiaries is a party, (xvi)
take or omit to take any action which would cause any of the
representations or warranties of the Company to become untrue, or
(xvii) authorize, commit or agree to take any of, the foregoing
actions.
(d) except as set forth on the Disclosure Schedule or
as required to comply with applicable law, the Company shall not,
nor shall it permit, any of its subsidiaries to, (i) adopt, enter
into, terminate or amend any bonus, profit sharing, compensation,
severance, termination, stock option, pension, retirement, deferred
compensation, employment or other benefit plan, agreement, trust,
fund or other arrangement for the benefit or welfare of any
director, officer or current or former employee, (ii) increase in
any manner the compensation or fringe benefit of, or pay any bonus
to, any director, officer or employee
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(except for normal increases or bonuses in the ordinary course of
business consistent with past practice to employees other than
directors, officers or senior management personnel and that, in the
aggregate, do not result in a material increase in benefits or
compensation expense to the Company and its subsidiaries relative
to the level in effect prior to such action (but in no event shall
the aggregate amount of all such increases exceed 5% of the
aggregate annualized compensation expense of the Company and its
subsidiaries reported in the most recent audited financial
statements of the Company included in the Public Reports)), (iii)
pay any benefit not provided for under any Arrangement, Plan or
Foreign Benefit Plan, (iv) except as permitted in clause (ii),
grant any awards under any bonus, incentive, performance or other
compensation plan or arrangement or benefit plan (including,
without limitation, the grant of stock options, stock appreciation
rights, stock based or stock related awards, performance units or
restricted stock, or the removal of existing restrictions in any
benefit plans or agreements or awards made thereunder), (v) take
any action to fund or in any other way secure the payment of
compensation or benefits under any employee plan, agreement,
contract or arrangement or benefit plan other than in the ordinary
course of business consistent with past practice, or (vi)
authorize, commit or agree to take, any of the foregoing actions.
ARTICLE IX
ADDITIONAL AGREEMENTS
Section 9.1 Access and Information. The Company and its
subsidiaries shall afford to Purchaser and Purchaser's accountants, counsel and
other representatives full access during normal business hours (and at such
other times as the parties may mutually agree) throughout the period prior to
the Effective Date, to all of its properties, books, contracts, commitments,
records, personnel and representatives, accountants and agents (including the
persons responsible for the preparation of Returns) and, during such period, the
Company shall, and shall cause each of its subsidiaries to, furnish promptly to
the Purchaser (a) a copy of each report, schedule and other document filed or
received by it pursuant to the requirements of federal or state securities laws,
and (b) all other information concerning its business, properties and personnel
as the Purchaser may reasonably request. Purchaser and Sub shall hold, and shall
cause their respective employees and agents to hold, in confidence all such
information in accordance with the terms of the Confidentiality Agreement
between the Company and Purchaser dated August 17, 1994.
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Section 9.2 Filings. Purchaser, Sub and the Company shall make
all necessary filings with respect to the Offer and the Merger under the
Securities Act and the Exchange Act and the rules and regulations thereunder,
under applicable Blue Sky or similar securities laws and under other applicable
state or foreign securities laws, rules and regulations and shall use all
reasonable efforts to obtain required approvals and clearances with respect
thereto.
Section 9.3 Employee Arrangements. (a) After the date of
consummation of the Offer, Purchaser shall not take any action that would cause
the Company not to honor in accordance with their terms, all employment,
severance, consulting, indemnification, change of control and other compensation
contracts between the Company or any of its subsidiaries and any current or
former director, officer or employee thereof listed in the Disclosure Schedule.
(b) After the Effective Date, Purchaser intends to cause the
Surviving Corporation to provide generally to the officers and employees of the
Surviving Corporation and its subsidiaries employee benefits, including, without
limitation, pension benefits, health and welfare benefits, and severance
arrangements that are in the aggregate comparable to the benefits currently
provided by the Company to such employees or to the benefits currently provided
by Purchaser to similarly situated employees of Purchaser.
(c) On or before the date of this Merger Agreement, the Board
of Directors of the Company (or, if appropriate, any committee administering the
Stock Option Plans (as defined below)) has adopted such resolutions or taken
such other actions as are required to provide that (i) each outstanding stock
option to purchase shares of Company Common Stock (a 'Stock Option') heretofore
granted under any stock option, stock appreciation rights or stock purchase
plan, program or arrangement of the Company (collectively, the 'Stock Option
Plans') outstanding immediately prior to the consummation of the Offer, whether
or not then exercisable, shall be cancelled immediately prior to the
consummation of the Offer in exchange for an amount in cash, payable at the time
of such cancellation, equal to the product of (y) the number of shares of
Company Common Stock subject to such Stock Option immediately prior to the date
of consummation of the Offer and (z) the excess of the price per share to be
paid in the Offer over the per share exercise price of such Stock Option and
(ii) each stock appreciation right ('SAR') granted under the Stock Option Plans
outstanding immediately prior to the date of consummation of the Offer shall be
cancelled immediately prior to the date of consummation of the Offer in exchange
for an amount of cash, payable at the time of such cancellation, equal to the
product of (y) the number of shares of Company Common Stock covered by such SAR
and (z) the excess of the price per share to be paid in the Offer over the
appreciation base per share of such SAR; provided, however, that no such cash
payment shall be made with respect to any SAR which is related to a Stock Option
with respect to which such a cash payment has been made. Any Stock
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Option or SAR not cancelled in accordance with this paragraph (c) immediately
prior to the date of consummation of the Offer, shall be cancelled at the
Effective Date in exchange for an amount in cash, payable at the Effective Date,
equal to the amount which would have been paid had such Stock Option or SAR been
cancelled immediately prior to the consummation of the Offer. A listing of all
outstanding Stock Options and SARs specifying the date such Stock Options or
SARs become exercisable (and the date upon which they expire) and their exercise
price and appreciation base, respectively, is set forth on the Disclosure
Schedule. In the event that the Company does not have sufficient cash available
to make payments in exchange of any Stock Option or SAR, Purchaser will, when
and only if the Offer is consummated, make available to the Company cash
sufficient to make such purchases.
(d) All Stock Option Plans shall terminate as of the Effective
Date and the provisions in any other benefit plan providing for the issuance,
transfer or grant of any capital stock of the Company or any interest in respect
of any capital stock of the Company shall be deleted as of the Effective Date,
and the Company shall ensure that following the Effective Date no holder of a
Stock Option or any participant in any Stock Option Plan shall have any right
thereunder to acquire any capital stock of the Company, Purchaser or Sub, except
as provided in Section 9.3(c). The Disclosure Schedule sets forth a mathematical
formula for determining the cost to the Company of the cancellation of
outstanding Stock Options and SARs provided for in this Section 9.3 and also
contains the Company's best estimate of the fees and expenses that will be
incurred by the Company in connection with the Merger.
Section 9.4 Indemnification. (a) Purchaser agrees that all
rights to indemnification existing in favor of the directors, officers or
employees of the Company (the 'Indemnified Parties') as provided in the
Company's Certificate of Incorporation, By-Laws or indemnification agreements
listed in the Disclosure Schedule that the Company has entered into with
directors and officers of the Company and its subsidiaries, as in effect as of
the date hereof, with respect to matters occurring through the Effective Date,
shall survive the Merger and shall continue in full force and effect for a
period of not less than six years from the Effective Date. Purchaser agrees to
cause the Surviving Corporation to maintain in effect for not less than three
years after the Effective Date the current policies of directors' and officers'
liability insurance maintained by the Company with respect to matters occurring
prior to the Effective Date for all persons who are directors or officers of the
Company or any of its subsidiaries on the date hereof; provided, however, that
(i) Purchaser may substitute therefor policies of at least the same coverage
(with carriers comparable to the Company's existing carriers) containing terms
and conditions which are no less advantageous to the Indemnified Parties and
(ii) Purchaser shall not be required to pay an annual premium for such insurance
in excess of two (2) times the last annual premium paid prior to the date
hereof, but in such case shall purchase as much coverage as possible for such
amount. The Company represents to Purchaser
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that the last annual premium paid prior to the date hereof for such insurance
does not exceed $300,000.
(b) In the event that any action, suit, proceeding or
investigation relating hereto or to the transactions contemplated by this Merger
Agreement is commenced, whether before or after the Effective Date, the parties
hereto agree to cooperate and use their respective reasonable efforts to
vigorously defend against and respond thereto.
Section 9.5 HSR Act; Other Action. The Company, Sub and
Purchaser shall (a) use their best efforts to file as soon as practicable
notifications under the HSR Act in connection with the Merger and the other
transactions contemplated hereby, and to respond as promptly as practicable to
any inquiries received from the Federal Trade Commission (the 'FTC') and the
Antitrust Division of the Department of Justice (the 'Antitrust Division') for
additional information or documentation and to respond as promptly as
practicable to all inquiries and requests received from any State Attorney
General or other Governmental Entity in connection with antitrust matters and
(b) use their best efforts to promptly take, or cause to be taken, all other
action and do, or cause to be done, all other things necessary, proper or
appropriate under applicable laws and regulations to consummate and make
effective in the most expeditious manner possible, the Offer, the Merger and the
transactions contemplated by this Merger Agreement as soon as practicable
including, without limitation, (i) the obtaining of all necessary actions or
nonactions, waivers, consents and approvals from Governmental Entities and the
making of all necessary registrations and filings (including filings with
Governmental Entities, if any) and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Merger Agreement or the consummation of any of the transactions
contemplated by this Merger Agreement, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (iv) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Merger Agreement; provided, however, that
a party shall not be obligated to take any action pursuant to the foregoing if
the taking of such action or the obtaining of any waiver, consent, approval or
exemption is reasonably likely (x) to be materially burdensome to such party and
its subsidiaries taken as a whole or to impact in a materially adverse manner
the economic or business benefits of the transactions contemplated by this
Merger Agreement so as to render inadvisable the consummation of the
transactions contemplated by this Merger Agreement or (y) to result in the
imposition of a condition or restriction of the type described in paragraph (a)
of Exhibit A hereto. In connection with and without limiting the foregoing, the
Company and its Board of
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Directors shall (i) take all action necessary to ensure that no state takeover
statute or similar statute or regulation is or becomes applicable to the Offer,
the Merger, this Merger Agreement or any of the other transactions contemplated
by this Merger Agreement, (ii) if any state takeover statute or similar statute
or regulation becomes applicable to the Offer, the Merger, this Merger Agreement
or any other transaction contemplated by this Merger Agreement, take all action
necessary to ensure that the Offer, the Merger and the other transactions
contemplated by this Merger Agreement may be consummated as promptly as
practicable on the terms contemplated by this Merger Agreement and otherwise to
minimize the effect of such statute or regulation on the Offer, the Merger and
the other transactions contemplated by this Merger Agreement and (iii) cooperate
with Purchaser and Sub in obtaining the Financing and fulfilling their
obligations under the commitment letter described in Section 5.8.
Section 9.6 Additional Agreements. The Company shall give
prompt notice to Purchaser, and Purchaser or Sub shall give prompt notice to the
Company, of (i) any representation or warranty made by it contained in this
Merger Agreement becoming untrue or inaccurate in any respect (including in the
case of representations or warranties by the Company, the Company or the
Purchaser receiving knowledge of any fact, event or circumstance which may cause
any representation qualified as to the knowledge of the Company to be or become
untrue or inaccurate in any respect) or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Merger Agreement; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under this Merger Agreement. The Company acknowledges that if after
the date of this Merger Agreement the Company or the Purchaser receives
knowledge of any fact, event or circumstance that would cause any representation
or warranty that is conditioned as to the knowledge of the Company to be or
become untrue or inaccurate in any respect, the receipt of such knowledge shall
constitute a breach of the representation or warranty that is so conditioned as
of the date of such receipt.
Section 9.7 No Solicitation. (a) Neither the Company nor any of
its subsidiaries shall, directly or indirectly, take (nor shall the Company
authorize or permit its subsidiaries, officers, directors, employees,
representatives, investment bankers, attorneys, accountants or other agents or
affiliates, to take) any action to (i) encourage, solicit or initiate the
submission of any Acquisition Proposal (as defined below), (ii) enter into any
agreement with respect to any Acquisition Proposal or (iii) participate in
discussions or negotiations with, or furnish any information to, any person in
connection with any Acquisition Proposal; provided, that, to the extent required
by the fiduciary obligations of the Board of Directors of the Company (as
determined in good faith by the Board of Directors of the Company based on the
written advice of Jaeckle, Fleischmann & Mugel), upon receipt of (x) an
unsolicited and
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written Superior Proposal (as defined in Section 9.7(b)) or (y) an unsolicited
and written Potential Superior Proposal, in either case from a Third Party not
referred to in the agreement specified in Section 6.15 and with which the
Company shall not have entered into a confidentiality agreement with respect to
a potential Acquisition Proposal since November 1, 1993, the Company may (1)
take the action referred to in clause (ii) with respect to such Superior
Proposal or Potential Superior Proposal but only in connection with a
simultaneous termination of this Merger Agreement in accordance with Section
11.1(f), and (2) take any of the actions referred to in clause (iii) with
respect to such Superior Proposal or Potential Superior Proposal. A Potential
Superior Proposal shall mean a proposal that a majority of the disinterested
members of the Board of Directors of the Company determines in its good faith
judgment to be reasonably likely to lead to a Superior Proposal. 'Acquisition
Proposal' shall mean, except for the transactions contemplated by this Merger
Agreement, any proposed (i) merger, consolidation or similar transaction
involving the Company, (ii) sale, lease or other disposition directly or
indirectly by merger, consolidation, share exchange or otherwise of assets of
the Company or its subsidiaries representing 10% or more of the consolidated
assets of the Company and its subsidiaries, (iii) issue, sale or other
disposition of (including by way of merger, consolidation, share exchange or any
similar transaction) securities (or options, rights or warrants to purchase, or
securities convertible into, such securities) representing 10% or more of the
voting power of the Company or (iv) transaction in which any person shall
acquire beneficial ownership (as such term is defined in Rule 13d-3 under the
Exchange Act), or the right to acquire beneficial ownership or any 'group' (as
such term is defined under the Exchange Act) shall have been formed which
beneficially owns or has the right to acquire beneficial ownership of 10% or
more of the outstanding Company Common Stock. The Company shall notify Purchaser
promptly of any Acquisition Proposal and shall provide Purchaser all available
information with respect thereto.
(b) The provisions of Section 9.7(a) shall not be deemed to
prohibit the Board of Directors of the Company, prior to the consummation of the
Offer, from withdrawing or modifying its approval or recommendation of the
Offer, this Merger Agreement, the Stockholder Agreement or the Merger if a
Superior Proposal is made, provided that (i) such action is required by the
fiduciary obligations of the Board of Directors of the Company as determined in
good faith by a majority of the disinterested members thereof, taking into
account (x) the financial and other terms and conditions of the Superior
Proposal and (y) the time period within which the transactions contemplated by
such Superior Proposal can be consummated and (ii) the Board of Directors of the
Company shall have received the written opinion of Jaeckle, Fleischmann & Mugel
to the effect that such action is required by the fiduciary obligations of the
Board of Directors of the Company. For purposes of this Merger Agreement,
'Superior Proposal' means a bona fide proposal made by a Third Party to acquire
all the outstanding Company Common Stock or all or substantially all the assets
of the Company pursuant to
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a tender or exchange offer, a merger or otherwise on terms which a majority of
the disinterested members of the Board of Directors of the Company determine in
its good faith judgment to be financially superior to the Company's stockholders
than the Offer and the Merger (based on a valuation letter of Goldman, Sachs &
Co. stating that, as of the date of withdrawal or modification of the approval
or recommendation of the Offer and the Merger by the Board of Directors of the
Company, the value of the consideration provided for in such proposal exceeds
the value of the consideration provided for in the Offer and the Merger, which
valuation letter shall be prepared specifically for use by the Company's Board
of Directors under this Section 9.7(b)). For purposes of this Merger Agreement,
'Third Party' shall mean any corporation, partnership, person or other entity or
'group' (as defined in Section 13(d)(3) of the Exchange Act) other than
Purchaser, any affiliate of Purchaser or any of their respective directors,
trustees, officers, employees, representatives and agents or any entity
controlled by one or more such persons. No withdrawal or modification by the
Board of Directors of the Company of its approval or recommendation of the
Offer, this Merger Agreement, the Stockholder Agreement or the Merger pursuant
to the foregoing provisions of this Section 9.7(b) shall affect any of the
Company's obligations under this Merger Agreement, and notwithstanding any such
withdrawal or modification, the Company shall continue to be obligated to carry
out the provisions of this Merger Agreement, including, without limitation, the
provisions of Section 9.5 hereof.
(c) The Company shall pay to Purchaser upon demand an amount in
cash equal to $7,000,000 (the 'Termination Fee') if (i) the Company terminates
this Merger Agreement pursuant to Section 11.1(f) or (ii) Purchaser or Sub
terminates this Merger Agreement pursuant to Section 11.1(e).
Section 9.8 Directors. Promptly upon the acceptance for payment
of, and payment for, any shares of Company Common Stock by Sub validly tendered
and not withdrawn pursuant to the Offer, all of the present directors of the
Company shall resign, the number of directors on the Board of Directors shall be
reduced to five (5) and Sub shall be entitled to designate replacement directors
on the Board of Directors of the Company such that Sub, subject to compliance
with Section 14(f) of the Exchange Act, will control a majority of such
directors, and the Company and its Board of Directors of the Company shall take
all such action needed to cause Sub's designees to be appointed to the Company's
Board of Directors. Subject to applicable law, the Company shall take all action
requested by Purchaser necessary to effect any such election, including mailing
to its shareholders the Information Statement containing the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder, and the Company agrees to make such mailing with the mailing of the
Schedule 14D-9.
Section 9.9 Opinion. Within three days of the date of this Merger
Agreement, the Company shall provide to Purchaser a signed
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copy of the written opinion of Goldman Sachs & Co. referred to in Section 6.18.
ARTICLE X
CONDITIONS PRECEDENT
Section 10.1 Conditions Precedent to the Obligations of Each
Party If the Offer is Consummated. If the Offer is consummated, the obligations
of Company, Sub and Purchaser to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Date of the following conditions:
(a) If approval of this Merger Agreement by Company
stockholders is required by law, the holders of the shares of capital stock of
the Company and the Sub entitled to vote thereon shall have duly approved this
Merger Agreement and the transactions contemplated hereby, all in accordance
with the requirements of the BCL and the respective Certificates of
Incorporation and By-Laws of the Company and Sub.
(b) No temporary restraining order, preliminary or permanent
injunction or other order by any court of competent jurisdiction or other legal
restraint which prohibits the consummation of the transactions contemplated by
this Merger Agreement shall have been issued; provided, however, that the
parties shall have used all reasonable efforts to have such order or injunction
vacated or reversed.
(c) The waiting period (and any extension thereof) as
prescribed by the regulations promulgated under the HSR Act shall have expired
or shall have been terminated.
Section 10.2. Additional Conditions Precedent to the Obligations of
Purchaser and Sub If the Offer is not Consummated. (a) The obligations of
Purchaser and Sub to effect the Merger in the event that the Offer is not
consummated and this Merger Agreement shall not have been terminated in
accordance with its terms shall be subject to (i) the conditions specified in
Sections 10.1(a) and 10.1(c) and (ii) the following further conditions:
(A) there shall not be threatened or pending by any
Governmental Entity or any other person any suit, action or proceeding
(in the case of a suit, action or proceeding by a person other than a
Governmental Entity, such suit action or proceeding having a reasonable
likelihood of success), (1) challenging the acquisition by Purchaser or
Sub of any shares of Company Common Stock, seeking to restrain or
prohibit the consummation of the Merger or any of the other
transactions contemplated by this Merger Agreement, or seeking to
obtain from the Company, Purchaser or Sub any damages that are material
in relation to the Company and its subsidiaries taken as a whole, (2)
seeking to prohibit or limit the ownership or operation by the Company,
Purchaser or any of their respective subsidiaries of a material portion
of the business or assets of the Company and its
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subsidiaries, taken as a whole, or Purchaser and its subsidiaries,
taken as a whole, or to compel the Company or Purchaser to dispose of
or hold separate any material portion of the business or assets of the
Company and its subsidiaries, taken as a whole, or Purchaser and its
subsidiaries, taken as a whole, as a result of the Offer, the Merger or
any of the other transactions contemplated by this Merger Agreement,
(3) seeking to impose material limitations on the ability of Purchaser
or Sub to acquire or hold, or exercise full rights of ownership of, any
shares of Company Common Stock including, without limitation, the right
to vote such Company Common Stock on all matters properly presented to
the stockholders of the Company, (4) seeking to prohibit Purchaser or
any of its subsidiaries from effectively controlling in any material
respect the business or operations of the Company or any of its
subsidiaries, or (5) which otherwise is reasonably likely to have a
Material Adverse Effect;
(B) there shall not be any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction threatened,
proposed, sought, enacted, entered, enforced, promulgated or deemed
applicable to (1) the Purchaser, the Company, or any of their
respective subsidiaries or (2) the Merger, or any other action shall be
taken by any Governmental Entity, other than the application to the
Offer or the Merger of applicable waiting periods under the HSR Act,
that is reasonably likely to result, directly or indirectly, in any of
the consequences referred to in clauses (1) through (5) of paragraph
(A) above;
(C) there shall not have occurred any Material Adverse Change;
(D) (1) the Board of Directors of the Company or any committee
thereof shall not have withdrawn or modified in a manner adverse to
Purchaser or Sub its approval or recommendation of the Offer, the
Merger or this Merger Agreement;
(E) there shall have not occurred (1) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market in the United
States that continues for a period of two days (excluding any
coordinated trading halt triggered solely as a result of a specified
decrease in a market index) or (2) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the
United States.
(F) all of the representations and warranties of the Company
set forth in this Merger Agreement shall be true and correct as of the
date of the Merger Agreement and as of the Effective Date, taking into
account in accordance with Section 6.1 any materiality qualifications
contained in such representations and warranties (except to the extent
such
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representations and warranties expressly relate to an earlier date);
and
(G) the Company shall not have failed to perform in any
material respect any obligation or to comply in any material respect
with any agreement or covenant of the Company to be performed or
complied with by it under this Merger Agreement.
(b) The obligation of the Company to effect the Merger if the
Offer is not consummated shall be subject to the fulfillment at or prior to the
Effective Date of all of the conditions set forth in Section 10.1.
ARTICLE XI
TERMINATION, AMENDMENT AND WAIVER
Section 11.1 Termination. This Merger Agreement may be
terminated at any time prior to the Effective Date, whether before or after
approval by the shareholders of the Company:
(a) by mutual written consent of the Board of Directors of
Purchaser and the Board of Directors of the Company;
(b) by either Purchaser or the Company if the Offer shall not
have been consummated on or before April 30, 1995 (provided the terminating
party is not otherwise in breach of its representations, warranties or
obligations under this Merger Agreement; and provided further that the Company
may not terminate this Merger Agreement pursuant to this Section 11.1(b) if at
any time (x) any of the conditions described in paragraph (d) of Exhibit A
hereto shall have occurred or (y) any Acquisition Proposal shall have been
publicly announced or otherwise been made publicly known);
(c) by the Company if any of the conditions specified in
Section 10.1 have not been met or waived by the Company at such time as such
condition is no longer capable of satisfaction as long as the Company is not in
breach of this Merger Agreement;
(d) by Purchaser if any of the conditions specified in Article
X have not been met or waived by Purchaser at such time as such condition is no
longer capable of satisfaction as long as the Purchaser is not in breach of this
Merger Agreement;
(e) by Purchaser or Sub if either Purchaser or Sub is entitled
to terminate the Offer as a result of the occurrence of any event described in
paragraph (d) of Exhibit A to this Merger Agreement;
(f) by the Company if all of the following conditions are
satisfied: (i) prior to the consummation of the Offer, the Company or its Board
of Directors shall have received a Superior Proposal from a Third Party, which
Third Party (x) is not
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referred to in the agreement specified in Section 6.15 and (y) shall not have
entered into a confidentiality agreement with the Company with respect to a
potential Acquisition Proposal since November 1, 1993, (ii) the Board of
Directors of the Company shall have received the written opinion of Jaeckle,
Fleischmann & Mugel to the effect that the fiduciary obligations of the Board of
Directors require that the Company terminate this Merger Agreement and enter
into an agreement with respect to the Superior Proposal, (iii) the Board of
Directors of the Company shall have resolved to enter into definitive
documentation with respect to the Superior Proposal within 48 hours of the
termination of this Merger Agreement and (iv) the Company shall have paid to
Purchaser an amount in cash equal to the Termination Fee; and
(g) by the Company if Chemical Bank shall not have informed the
Purchaser in writing (with a copy to be delivered by the Purchaser to the
Company) that its counsel has received and reviewed to their satisfaction
documentation relating to environmental, litigation, tax and capital structure
matters relating to the Company and its subsidiaries on or before 9:00 a.m.,
Eastern Standard Time, on November 10, 1994.
Section 11.2 Effect of Termination. In the event of termination
of this Merger Agreement by either Purchaser or the Company, as provided above,
this Merger Agreement shall forthwith become void and (except for the willful
breach of this Merger Agreement by any party hereto) there shall be no liability
on the part of either the Company, Purchaser or Sub or their respective officers
or directors; provided that the last sentence of Section 9.1 and Sections 5.6,
6.15, 9.7(c), 11.2, 12.3 and 12.7 shall survive the termination.
Section 11.3 Amendment. This Merger Agreement may be amended by
the parties hereto, at any time before or after any required approval of matters
presented in connection with the Merger by the stockholders of the Company;
provided, however, that after any such approval, there shall not be made any
amendment that by law requires further approval by such stockholders without the
further approval of such stockholders; and provided further, however that
following the consummation of the Offer, the provisions of Sections 9.3 and 9.4
may not be amended in any manner adverse to the directors, officers or employees
referred to therein.
Section 11.4 Waiver. At any time prior to the Effective Date,
the parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
documents delivered pursuant hereto, and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to this Merger Agreement to assert any of its rights under this Merger
41
<PAGE>
Agreement or otherwise shall not constitute a waiver of those rights.
ARTICLE XII
GENERAL PROVISIONS
Section 12.1 Non-Survival of Representations, Warranties and
Agreements. Only those agreements and covenants of the parties which by their
express terms apply in whole or in part after the Effective Date (including,
inter alia, the agreements and covenants expressed in Article III and Sections
9.1, 9.3 and 9.4 and this Section 12.1) shall survive the Effective Date. All
other representations, warranties, agreements and covenants shall expire at the
Effective Date.
Section 12.2 Notices. All notices or other communications under
this Merger Agreement shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, telex or other standard form of telecommunications, or by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to the Company:
Trico Products Corporation
817 Washington Street
Buffalo, New York 14203
Attention: Richard L. Wolf
Chairman of the Board of
Directors, President, and
Chief Executive Officer
Fax No.: (716) 857-3092
With a copy to:
Jaeckle, Fleischmann & Mugel
800 Fleet Bank Building
Twelve Fountain Plaza
Buffalo, New York 14202
Attention: Albert R. Mugel, Esq.
Joseph P. Kubarek, Esq.
Fax No.: (716) 856-0432
If to Purchaser or Sub:
Stant Corporation
425 Commerce Drive
Richmond, Indiana 47374
Attention: Anthony Graziano, Esq.
Fax No.: 317-962-6866
42
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With a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Attention: Timothy G. Massad, Esq.
Fax No.: 212-474-3700
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
Section 12.3 Fees and Expenses. Subject to Section 9.7(c),
whether or not the Merger is consummated, all costs and expenses incurred in
connection with this Merger Agreement and the transactions contemplated by this
Merger Agreement shall be paid by the party incurring such expenses.
Section 12.4 Publicity. So long as this Merger Agreement is in
effect, Purchaser, Sub and the Company agree to consult with each other in
issuing any press release or otherwise making any public statement with respect
to the Offer, the Merger and the transactions contemplated by this Merger
Agreement, and none of them shall issue any press release or make any public
statement prior to such consultation, except as may be required by law or by
obligations pursuant to any listing agreement with any national securities
exchange. The commencement of litigation relating to this Merger Agreement or
the transactions contemplated hereby or any proceedings in connection therewith
shall not be deemed a violation of this Section 12.4.
Section 12.5 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Merger Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Merger
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Section 12.6 Interpretation; Definitions. When a reference is
made in this Merger Agreement to a 'subsidiary' of Purchaser or the Company, the
word subsidiary means a corporation, partnership, joint venture, association,
trust, unincorporated organization or other entity, an amount of the voting
ownership or voting partnership interests of which sufficient to elect at least
a majority of its Board of Directors or other governing body (or, if there are
no such voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by the Company or Purchaser, as the case may be. For
purposes of this Merger Agreement, the term 'person' shall mean an individual,
corporation, partnership, joint venture, association, trust, unincorporated
organization or other entity and the term 'indebtedness' shall mean, with
respect to any person, without duplication, (A) all obligations of such
43
<PAGE>
person for borrowed money, or with respect to deposits or advances of any kind,
(B) all obligations of such person evidenced by bonds, debentures, notes or
similar instruments, (C) all obligations of such person upon which interest
charges are customarily paid (other than trade payables incurred in the ordinary
course of business), (D) all obligations of such person under conditional sale
or other title retention agreements relating to property purchased by such
person, (E) all obligations of such person issued or assumed as the deferred
purchase price of property or services (excluding obligations of such person to
creditors for raw materials, inventory, services and supplies incurred in the
ordinary course of such person's business) (F) all lease obligations of such
person capitalized on the books and records of such person, (G) all obligations
of others secured by any lien on property or assets owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (H)
all obligations of such person under interest rate, or currency or commodity
hedging, swap or similar derivative transactions (valued at the termination
value thereof), (I) all letters of credit issued for the account of such person
(excluding letters of credit issued for the benefit of suppliers to support
accounts payable to suppliers incurred in the ordinary course of business) and
(J) all guarantees and arrangements having the economic effect of a guarantee of
such person of any indebtedness of any other person.
Section 12.7 Miscellaneous. This Merger Agreement (including
the documents and instruments referred to herein) (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof (other than as provided in the Confidentiality Agreement between
Purchaser and the Company dated August 17, 1994), (b) is not intended to confer
upon any other person any rights or remedies hereunder, (c) shall not be
assigned by operation of law or otherwise, and (d) shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of New York (without giving effect to the provisions thereof relating to
conflicts of law). The headings contained in this Merger Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Merger Agreement. This Merger Agreement may be executed
in two or more counterparts which together shall constitute a single agreement.
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IN WITNESS WHEREOF, Purchaser, Sub the Company have caused this
Merger Agreement to be signed by their respective officers thereunder duly
authorized all as of the date first written above.
STANT CORPORATION,
By: /s/ Thomas F. Plocinik
Name: Thomas F. Plocinik
Title: Senior Vice President-Finance
STANT EXPANSION CORPORATION,
By: /s/ Thomas F. Plocinik
Name: Thomas F. Plocinik
Title: Vice President and Treasurer
TRICO PRODUCTS CORPORATION,
By: /s/ Christopher T. Dunstan
Name: Christopher T. Dunstan
Title: Vice Chairman, Senior
Vice President and
Chief Financial Officer
45
<PAGE>
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Merger
Agreement, Sub shall not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC, including Rule 14e-l(c) under the
Exchange Act (relating to Sub's obligation to pay for or return tendered shares
of Company Common Stock after the termination or withdrawal of the Offer), to
pay for any shares of Company Common Stock tendered pursuant to the Offer
unless, (i) there shall have been validly tendered and not withdrawn prior to
the expiration of the Offer such number of shares of Company Common Stock which
would constitute two-thirds of the outstanding shares of Company Common Stock
(the 'Minimum Condition') and (ii) any waiting period under the HSR Act
applicable to the purchase of shares of Company Common Stock pursuant to the
Offer shall have expired or been terminated (the 'HSR Condition'). Furthermore,
notwithstanding any other term of the Offer or this Merger Agreement, Sub shall
not be required to accept for payment or, subject as aforesaid, to pay for any
shares of Company Common Stock not theretofore accepted for payment or paid for,
and may terminate the Offer if, at any time on or after the date of this Merger
Agreement and before the acceptance of such shares for payment or the payment
therefor, any of the following conditions exist (other than as a result of any
action or inaction of Purchaser or any of its subsidiaries which constitutes a
breach of this Merger Agreement):
(a) there shall be threatened or pending by any Governmental
Entity or any other person any suit, action or proceeding (in the case of a
suit, action or proceeding by a person other than a Governmental Entity, such
suit action or proceeding having a reasonable likelihood of success), (i)
challenging the acquisition by Purchaser or Sub of any shares of Company Common
Stock under the Offer, seeking to restrain or prohibit the making or
consummation of the Offer or the Merger or any of the other transactions
contemplated by this Merger Agreement, or seeking to obtain from the Company,
Purchaser or Sub any damages that are material in relation to the Company and
its subsidiaries taken as a whole, (ii) seeking to prohibit or limit the
ownership or operation by the Company, Purchaser or any of their respective
subsidiaries of a material portion of the business or assets of the Company and
its subsidiaries, taken as
A-1
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a whole, or Purchaser and its subsidiaries, taken as a whole, or to compel the
Company or Purchaser to dispose of or hold separate any material portion of the
business or assets of the Company and its subsidiaries, taken as a whole, or
Purchaser and its subsidiaries, taken as a whole, as a result of the Offer, the
Merger or any of the other transactions contemplated by this Merger Agreement,
(iii) seeking to impose material limitations on the ability of Purchaser or Sub
to acquire or hold, or exercise full rights of ownership of, any shares of
Company Common Stock accepted for payment pursuant to the Offer including,
without limitation, the right to vote such Company Common Stock on all matters
properly presented to the stockholders of the Company, (iv) seeking to prohibit
Purchaser or any of its subsidiaries from effectively controlling in any
material respect the business or operations of the Company or of its
subsidiaries, or (v) which otherwise is reasonably likely to have a Material
Adverse Effect;
(b) there shall be any statute, rule, regulation, legislation,
interpretation, judgment, order or injunction threatened, proposed, sought,
enacted, entered, enforced, promulgated or deemed applicable to (i) the
Purchaser, the Company, or any of their respective subsidiaries or (ii) the
Offer or the Merger, or any other action shall be taken by any Governmental
Entity, other than the application to the Offer or the Merger of applicable
waiting periods under the HSR Act, that is reasonably likely to result, directly
or indirectly, in any of the consequences referred to in clauses (i) through (v)
of paragraph (a) above;
(c) there shall have occurred any Material Adverse Change;
(d) (i) the Board of Directors of the Company or any committee
thereof shall have withdrawn or modified in a manner adverse to Purchaser or Sub
its approval or recommendation of the Offer, the Merger or this Merger
Agreement;
(e) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market in the United States that continues
for a period of two days (excluding any coordinated trading halt triggered
solely as a result of a specified decrease in a market index) and (ii) a
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States;
(f) any of the representations and warranties of the Company set
forth in this Merger Agreement shall not be true and correct as of the date of
the Merger Agreement and as of any time
A-2
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thereafter through the time of the acceptance of shares of Company Common Stock
or the time of payment therefor pursuant to the Offer as if made as of such
time, taking into account in accordance with Section 6.1 any materiality
qualifications contained in such representations and warranties (except to the
extent such representations and warranties expressly relate to an earlier date);
(g) the Company shall have failed to perform in any material
respect any obligation or to comply in any material respect with any agreement
or covenant of the Company to be performed or complied with by it under this
Merger Agreement; or
(h) the Merger Agreement shall have been terminated in
accordance with its terms.
The foregoing conditions are for the sole benefit of Sub and
Purchaser and may, subject to the terms of the Merger Agreement, be waived by
Sub and Purchaser in whole or in part at any time and from time to time in their
sole discretion. The failure by Purchaser or Sub at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right, the waiver
of any such right with respect to particular facts and circumstances shall not
be deemed a waiver with respect to any other facts and circumstances and each
such right shall be deemed an ongoing right that may be asserted at any time and
from time to time.
A-3
<PAGE>
EXHIBIT B
CERTAIN SHAREHOLDERS
<TABLE>
<CAPTION>
Stockholder Number of
Stockholder Shares
<S> <C> <C> <C>
1. JOHN R. OISHEI, APPRECIATION CHARITABLE TRUST 319,260
2. JULIA R. & ESTELLE L. FOUNDATION INCORPORATED 150,924
3. MR. RUPERT WARREN, individually and as trustee 144,112
</TABLE>
B-1
<PAGE>
EXHIBIT C
CERTIFICATE OF INCORPORATION
OF
TRICO PRODUCTS CORPORATION
Under Section 402 of the Business Corporation Law
The undersigned, of the age of eighteen years or over, for the
purpose of forming a corporation pursuant to Section 402 of the Business
Corporation Law, does hereby certify:
FIRST: The name of the Corporation is 'TRICO PRODUCTS
CORPORATION', hereinafter referred to as the 'Corporation'.
SECOND: The purposes for which the Corporation is formed is to
engage in any lawful act or activity for which corporations may be organized
under the Business Corporation Law, provided that the corporation is not formed
to engage in any act or activity which requires the consent or approval of any
state official, department, board, agency or other body, without such consent or
approval first being obtained.
THIRD: The capital of the Corporation shall be at least equal to
the sum of the aggregate amount of consideration received by the Corporation for
the issuance of shares without par value, plus such amounts as from time to time
by resolution of the Board of Directors may be transferred thereto.
C-1
<PAGE>
FOURTH: The total number of shares which the Corporation is
authorized to issue is 1,000 shares, all of which are to be common shares
without par value.
FIFTH: The Secretary of State is designated as the agent of the
corporation upon whom process against the corporation may be served. The post
office address to which the Secretary of State shall mail a copy of any process
against the corporation served upon him is: c/o C T Corporation System, 1633
Broadway, New York, New York 10019.
SIXTH: The name and address of the registered agent which is to
be the agent of the corporation upon whom process against it may be served, is C
T CORPORATION SYSTEM, 1633 Broadway, New York, New York 10019.
SEVENTH: The office of the Corporation shall be located in
Buffalo, New York.
EIGHTH: The duration of the Corporation is to be perpetual.
NINTH: The number of directors of the Corporation is to be three
(3).
TENTH: The directors of the Corporation need not be stockholders
therein, unless the By-laws shall so require. The Board of Directors shall have
power to hold its meetings in the
C-2
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State of New York, or outside the State of New York, in such places as from time
to time may be designated by the By-laws, or by resolution of the Board of
Directors. No contract or other transaction of the Corporation shall be affected
by the fact that any of the directors of the Corporation are in any way
interested in, or connected with, any other party to such contract or
transaction, or are themselves parties to such contract or transaction.
ELEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision herein contained, in the manner now or hereafter
prescribed by law, and all rights conferred on stockholders hereunder are
granted subject to this provision.
TWELFTH: To the fullest extent permitted by the New York Business
Corporation Law, as the same exists on the date of the adoption of this
Certificate or to such greater extent permitted by any amendment of such law, a
director of the Corporation shall not be liable to the Corporation or its
stockholders for damages for any breach of duty as a director. No amendment or
repeal of this paragraph or adoption of any provision inconsistent herewith
shall have any effect on the liability of any director of the Corporation with
respect to any act or omission as a director occurring prior to the amendment,
repeal or adoption.
C-3
<PAGE>
CONFORMED COPY
AGREEMENT dated as of November 8, 1994 (this
'Agreement'), among STANT CORPORATION, a Delaware corporation
('Purchaser'), STANT EXPANSION CORPORATION, a New York
corporation and a wholly owned subsidiary of Purchaser
('Sub'), JOHN R. OISHEI APPRECIATION CHARITABLE TRUST
('Oishei'), THE JULIA R. & ESTELLE L. FOUNDATION INCORPORATED
('Foundation') and MR. RUPERT WARREN ('Warren') (Oishei,
Foundation and Warren being collectively referred to herein
as the 'Stockholders', each individually being a
'Stockholder').
WHEREAS, Purchaser, Sub, and Trico Products Corporation, a New
York corporation (the 'Company'), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (the 'Merger Agreement'), which provides,
among other things, that Sub shall make the Offer (as defined in the Merger
Agreement) to purchase all of the issued and outstanding shares of the Company's
Common Stock, no par value (the 'Company Common Stock'), and shall merge with
and into the Company (the 'Merger'), upon the terms and subject to the
conditions set forth in the Merger Agreement (any term used herein without
definition shall have the definition ascribed thereto in the Merger Agreement);
WHEREAS, the Stockholders collectively own 614,296 shares of
Company Common Stock (such shares of Company Common Stock being collectively
referred to herein as the 'Stockholder Shares') and each Stockholder owns the
number of Stockholder Shares set forth in Schedule I hereto and;
WHEREAS, as a condition to the willingness of Purchaser and Sub
to enter into the Merger Agreement, and as an inducement to them to do so, the
Stockholders have agreed for the benefit of Purchaser and Sub to tender the
Stockholder Shares and any other shares of Company Common Stock at any time
during the term of this Agreement held by the Stockholders, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of Company Common
Stock owned by the Stockholders in favor of the Merger, and to grant to Sub an
option to acquire all Stockholder Shares and all other shares of Company Common
Stock owned by the Stockholders under certain circumstances, all on the terms
and conditions contained in this Agreement; and
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement the parties
hereby agree as follows:
<PAGE>
ARTICLE I
Tender Offer and Option
SECTION 1.01. Tender of Shares. (a) Within five business days
of the commencement by Sub of the Offer, each Stockholder shall tender to the
Depository designated in the Offer to Purchase (the 'Offer to Purchase')
distributed by Sub in connection with the Offer (i) a letter of transmittal with
respect to the Stockholder Shares and any other shares of Company Common Stock
held by such Stockholder (whether or not currently held by such Stockholder; the
Stockholder Shares and all other shares owned by any Stockholder being
collectively referred to herein as the 'Shares'), complying with the terms of
the Offer to Purchase, (ii) the certificates representing the Shares and (iii)
all other documents or instruments required to be delivered pursuant to the
terms of the Offer to Purchase.
(b) No Stockholder shall, subject to applicable law, withdraw
the tender effected in accordance with Section 1.01(a); provided, however, that
(i) a Stockholder may decline to tender, or may withdraw, any and all Shares
owned by such Stockholder if (A) the amount or form of consideration to be paid
for such Shares is less than $85.00 per share in cash, net to such Stockholder
(the 'Purchase Price') or (B) the Merger Agreement is terminated in accordance
with its terms and (ii) Each Stockholder shall give Sub at least three business
days' prior notice of any withdrawal of Shares owned by such Stockholder.
SECTION 1.02. Option. (a) The Stockholders hereby irrevocably
grant Sub an option (the 'Option'), exercisable only upon the events and subject
to the conditions set forth herein, to purchase all of the Shares at a purchase
price per share equal to the Purchase Price.
(b) Subject to the conditions set forth in Section 1.03, Sub
may exercise the Option in whole as to all Shares at any time prior to the date
60 days after the expiration or termination of the Offer if (x) any Stockholder
fails to comply with any of its obligations under this Agreement or withdraws
the tender of the Shares except under the circumstances set forth in the proviso
to Section 1.01(b) (but the Option shall not limit any other right or remedy
available to Purchaser or Sub against any Stockholder for breach of this
Agreement) or (y) the Offer is not consummated because of the existence of any
of the conditions to the Offer set forth in Exhibit A to the Merger Agreement
(other than as a result of any action or inaction of Purchaser or Sub which
constitutes a breach of the Merger Agreement) and (1) the Board of Directors of
the Company or any committee thereof shall have withdrawn or modified in a
manner adverse to Purchaser or Sub its approval or recommendation of the Offer,
the Merger, the Merger Agreement or this Agreement or
2
<PAGE>
(2) there shall have been publicly announced or otherwise publicly disclosed any
Acquisition Proposal. Upon the occurrence of any of such circumstances, Sub
shall be entitled to exercise the Option and (subject to Section 1.03) Sub shall
be entitled to purchase the Shares and the Stockholders shall sell the Shares to
Sub. Sub shall exercise the Option by delivering written notice thereof to each
Stockholder, specifying the date, time and place for the closing of such
purchase. The closing of the purchase of Shares pursuant to this Section 1.02
(the 'Closing') shall take place on the date, at the time and at the place
specified in such notice; provided, that if at such date any of the conditions
specified in Section 1.03 shall not have been satisfied (or waived), Sub may
postpone the Closing until a date within five business days after such
conditions are satisfied.
(c) At the Closing, each Stockholder will deliver to Sub (in
accordance with Sub's instructions) the certificates representing the Shares
owned by such Stockholder and being purchased pursuant to Section 1.02(c), duly
endorsed or accompanied by stock powers duly executed in blank. At such Closing,
Sub shall deliver to each Stockholder a certified or bank cashier's check
payable to or upon the order of each Stockholder in an amount equal to the
number of Shares being purchased from such Stockholder at such Closing
multiplied by the Purchase Price.
(d) The Option will terminate upon termination of the Merger
Agreement.
SECTION 1.03. Conditions to Option. The obligation of Sub to
purchase the Shares at the Closing is subject to the following conditions:
(a) all waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder, (the 'HSR Act') applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Entity, nor
any statute, rule, regulation or order promulgated or enacted by any
Governmental Entity prohibiting, or otherwise restraining, such
purchase.
SECTION 1.04. No Purchase. Sub may allow the Offer to expire without
accepting for payment or paying for any Shares, on the terms and conditions set
forth in the Offer to Purchase, and may allow the Option to expire without
exercising the Option and purchasing all or any Shares pursuant to such
exercise. If any Shares are not accepted for payment in accordance with the
terms of the Offer to Purchase or pursuant to the exercise of the
3
<PAGE>
Option, they shall be returned to the applicable Stockholder, whereupon they
shall continue to be held by such Stockholder subject to the terms and
conditions of this Agreement.
ARTICLE II
Consent and Voting
Each Stockholder hereby revokes any and all previous proxies
granted with respect to the Shares owned by such Stockholder. By entering into
this Agreement, each Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as the Merger
Agreement is in effect, each Stockholder hereby agrees (i) to vote all Shares
now or hereafter owned by such Stockholder in favor of the Merger Agreement, the
Merger and the transactions contemplated thereby and (ii) to oppose any
Acquisition Proposal and to vote all Shares now or hereafter owned by such
Stockholder against any Acquisition Proposal.
ARTICLE III
Representations, Warranties and Covenants
of Stockholders
Each Stockholder represents, warrants and covenants to
Purchaser and the Sub that:
SECTION 3.01. Ownership. Such Stockholder is the sole, true,
lawful and beneficial owner of the Shares owned by such Stockholder and listed
in Schedule I hereto and that there are no restrictions on voting rights or
rights of disposition pertaining to such Shares. Such Stockholder will convey
good and valid title to the Shares owned by such Stockholder and being acquired
pursuant to the Offer, the Merger or the exercise of the Option, as the case may
be, free and clear of any and all Liens. None of the Shares owned by such
Stockholder is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Shares. Until this Agreement is
terminated, such Stockholder shall not, directly or indirectly, sell, exchange,
encumber, pledge, assign or otherwise transfer or dispose of, or agree to or
solicit any of the foregoing, or grant any right or power to any person that
limits such Stockholder's sole power to vote, sell, assign, transfer, pledge,
encumber or otherwise dispose of the Shares owned by such Stockholder or
otherwise directs such Stockholder with respect to such Shares. Such Stockholder
agrees to notify Purchaser and Sub promptly and to provide all details requested
by Purchaser or Sub if such Stockholder or any of its affiliates shall be
approached or
4
<PAGE>
solicited, directly or indirectly, by any person with respect to any of the
foregoing.
SECTION 3.02. Authority and Non-Contravention. The execution,
delivery and performance by such Stockholder of this Agreement and the
consummation of the transactions contemplated hereby (i) are within such
Stockholder's power and authority, have been duly authorized by all necessary
action (including any consultation, approval or other action by or with any
other person), (ii) require no action by or in respect of, or filing with, any
Governmental Entity (except as may be required under the HSR Act), and (iii) do
not and will not contravene or constitute a default under, or give rise to a
right of termination, cancellation or acceleration of any right or obligation of
such Stockholder or to a loss of any benefit of such Stockholder under, any
provision of applicable law or regulation of any agreement, judgment,
injunction, order, decree, or other instrument binding on such Stockholder or
result in the imposition of any Lien on any asset of such Stockholder.
SECTION 3.03. Binding Effect. This Agreement has been duly
executed and delivered by such Stockholder and is the valid and binding
agreement of such Stockholder, enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 3.04. Total Shares. The Stockholder Shares owned by
such Stockholder and listed in Schedule I opposite the name of such Stockholder
are the only shares of Company Common Stock beneficially owned as of the date
hereof by such Stockholder and such Stockholder has no option to purchase or
right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
SECTION 3.05. Finder's Fees. No investment banker, broker or
finder is entitled to a commission or fee from Sub or the Company in respect of
this Agreement based upon any arrangement or agreement made by or on behalf of
such Stockholder, except as otherwise provided in the Merger Agreement.
ARTICLE IV
Representations, Warranties and Covenants
of Purchaser and Sub
Purchaser and Sub represent, warrant and covenant to each
Stockholder:
5
<PAGE>
SECTION 4.01. Corporate Power and Authority. Purchaser and Sub
have all requisite corporate power and authority to enter into this Agreement
and to perform their obligations hereunder. The execution, delivery and
performance by Purchaser and Sub of this Agreement and the consummation by
Purchaser and Sub of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Purchaser and Sub.
SECTION 4.02. Binding Effect. This Agreement has been duly
executed and delivered by Purchaser and Sub and is a valid and binding agreement
of Purchaser and Sub, enforceable against each of them in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
SECTION 4.03. Acquisition for Sub's Account. Any Shares to be
acquired upon consummation of the Offer, or upon exercise of the Option will be
acquired by Sub for its own account and not with a view to the public
distribution thereof and will not be transferred except in compliance with the
Securities Act and the rules and regulations promulgated thereunder. The
certificates representing Shares acquired pursuant to the exercise of the Option
may bear a legend indicating that such Shares were sold without registration
under the Securities Act.
ARTICLE V
Additional Agreements
SECTION 5.01. Agreements of Stockholders. Each Stockholder
hereby covenants and agrees that, so long as the Merger Agreement is in effect:
(a) No Solicitation. Such Stockholder shall not directly or
indirectly (i) solicit, initiate or encourage (or authorize any person
to solicit, initiate or encourage) any Acquisition Proposal or (ii)
participate in any discussion or negotiations regarding, or furnish to
any other person any information with respect to, or otherwise
cooperate in any way with, or participate in, facilitate or encourage
any effort or attempt by any other person to do or seek the foregoing.
Such Stockholder shall promptly advise Purchaser of the terms of any
communications it or any of its affiliates may receive relating to any
Acquisition Proposal.
(b) Adjustment upon Changes in Capitalization or Merger. In the
event of any change in the Company's capital stock by reason of stock
dividends, stock splits, mergers, consolidations, recapitalization,
combinations, conversions,
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exchanges of shares, extraordinary or liquidating dividends, or other
changes in the corporate or capital structure of the Company which
would have the effect of diluting or changing the Sub's rights
hereunder, the number and kind of shares or securities subject to this
Agreement and the Purchase Price shall be appropriately and equitably
adjusted so that the Sub shall receive pursuant to the Offer or the
exercise of the Option the number and class of shares or other
securities or property that the Sub would have received in respect of
the Shares purchasable pursuant to the Offer or the exercise of the
Option if such purchase had occurred immediately prior to such event.
Such Stockholder shall request the Company to take, and shall use
reasonable efforts to take, such steps in connection with the foregoing
as may be necessary to assure that the provisions hereof shall
thereafter apply as nearly as possible to any securities or property
thereafter deliverable pursuant to the Offer or the exercise of the
Option.
ARTICLE VI
Miscellaneous
SECTION 6.01. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 6.02. Further Assurances. Purchaser, Sub and the
Stockholders will each execute and deliver or cause to be executed and delivered
all further documents and instruments and use its best efforts to secure such
consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby and by the Merger
Agreement.
SECTION 6.03. Additional Agreements. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement.
SECTION 6.04. Specific Performance. Each Stockholder agrees
that Purchaser and Sub would be irreparably damaged if for any reason any
Stockholder fails to perform any of its obligations under this Agreement, and
that Purchaser and Sub would not have an adequate remedy at law for money
damages in
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such event. Accordingly, Purchaser and Sub shall be entitled to specific
performance and injunctive and other equitable relief to enforce the performance
of this Agreement by each Stockholder. This provision is without prejudice to
any other rights that Purchase or Sub may have against any Stockholder for any
failure to perform its obligations under this Agreement.
SECTION 6.05. Notices. All notices, requests, claims, demands
and other communications hereunder shall be deemed to have been duly given when
delivered in person, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address set forth on the
signature page hereto.
SECTION 6.06 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Shares.
SECTION 6.07. Amendments; Termination. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
will terminate upon the termination of the Merger Agreement in accordance with
its terms.
SECTION 6.08. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that Sub may
assign its rights and obligations to another wholly-owned subsidiary of
Purchaser which is the assignee of Sub's rights under the Merger Agreement; and
provided further that except as set forth in the prior clause, a party may not
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be null and void.
SECTION 6.09. Governing Law. This Agreement shall be construed
in accordance with and governed by the law of New York without giving effect to
the principles of conflicts of laws thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effects as if the signatures thereto and thereof were upon the
same instrument. This Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
STANT CORPORATION,
by /s/ Thomas F. Plocinik
Name: Thomas F. Plocinik
Title: Senior Vice
President-Finance
Address for Notices:
425 Commerce Drive
Richmond, IN 47374
Attn: Anthony Graziano, Esq.
STANT EXPANSION CORPORATION,
by /s/ Thomas F. Plocinik
Name: Thomas F. Plocinik
Title: Vice President and
Treasurer
Address for Notices:
In care of Stant Corporation
425 Commerce Drive
Richmond, IN 47374
Attn: Anthony Graziano, Esq.
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JOHN R. OISHEI APPRECIATION
CHARITABLE TRUST,
by /s/ Rupert Warren
Name: Rupert Warren
Title: Co-Trustee
by /s/ Albert R. Mugel
Name: Albert R. Mugel
Title: Co-Trustee
by /s/ J. Walter Frey
Name: J. Walter Frey
Title: Co-Trustee
by /s/ Allan R. Wiegley
Name: Allan R.
Wiegley
Title: Co-Trustee
Address for Notices:
817 Washington Street
Buffalo, New York 14203
JULIA R. & ESTELLE L.
FOUNDATION INCORPORATED,
by /s/ Rupert Warren
Name: Rupert Warren
Title: President
Address for Notices:
817 Washington Street
Buffalo, New York 14203
/s/ Rupert Warren
Rupert Warren, individually
and as sole trustee of the
trusts established by John
R. Oshei listed on
Schedule II
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Address for Notices:
817 Washington Street
Buffalo, New York 14203
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SCHEDULE I
STOCKHOLDER SHARES
<TABLE>
<CAPTION>
Number of
Stockholder Stockholder Shares
----------- ------------------
<S> <C> <C>
1. John R. Oishei,
Appreciation
Charitable Trust 319,260
2. Julia R. & Estelle L.
Foundation Incorporated 150,924
3. Mr. Rupert Warren, individually
and as trustee of the trusts
listed on Schedule II 144,112
</TABLE>
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SCHEDULE II
Rupert Warren Holdings
<TABLE>
<CAPTION>
PERSONAL NUMBER OF SHARES
-------- ----------------
<S> <C>
R. Warren 17,320
</TABLE>
<TABLE>
<CAPTION>
AS TRUSTEE NUMBER OF SHARES
---------- ----------------
<S> <C>
JO Trust A 8,096
POM Trust A 8,096
JO Trust B 444
POM Trust B 444
Trust C 1,380
Trust for RJO (now Fdn.) 28,975
Trust for JO 29,281
Trust for JO 6,000
Trust for JO 1,255
Trust for POM 29,281
Trust for POM 6,000
Trustee for POM 1,255
Trust for Worth 4,685
Trust for Butman 1,600
</TABLE>
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<PAGE>
August 15, 1994
Stant Corporation
425 Commerce Drive
Richmond, IN 47374
Attention: Mr. Ward Woods
Chairman of the Board
Trico Products Corporation is furnishing you with certain information in order
for you to consider a possible business combination or other transaction with
the Company (as hereinafter defined). To induce the Company to furnish you such
information, you agree as follows with respect to any information supplied to
you by the Company or its representatives, whether supplied before, on or after
the date of this Agreement, and information which you obtain concerning the
Company as a result of the access to such information provided to you by the
Company, other than information that has been made available to the public
(hereinafter collectively referred to as the 'Confidential Material'):
(1) You recognize and acknowledge the confidential nature and
competitive value of the Confidential Material and the damage
that could result to the Company if information contained
therein is disclosed to any third party. You further
acknowledge that you are aware of your obligations under
federal and state securities laws and regulations, and agree
that you will not use the Confidential Material in any manner
that would constitute a violation of such laws and regulations.
(2) You will not use the Confidential Material in any way
detrimental to the Company, and it will be used solely for the
purpose of evaluating a possible transaction between the
Company and you. Except as may be provided below, you also
agree that you and Your Representatives (as hereinafter
defined) will not disclose any of the Confidential Material to
any person or entity without the prior written consent of the
Company; provided, however, that the Confidential Material may
be disclosed to your advisers and agents who (a) need to know
such information for the purpose of evaluating a
<PAGE>
possible transaction with the Company and (b) agree in writing
to keep such Information confidential and to be bound by this
Agreement to the same extent as if they were parties hereto.
You will be responsible for any breach of this Agreement by any
of Your Representatives. If you or any of Your Representatives
are requested or required (by legal process, civil
investigative demand or similar process) to disclose any
Confidential Material, you will promptly notify the Company so
that the Company may seek an appropriate protective order or
waive compliance with this Agreement. If you or any of Your
Representatives are nonetheless compelled to disclose
information concerning the Company to any tribunal, you or Your
Representative may disclose such to the tribunal, provided that
you shall use reasonable efforts to obtain, at the request of
the Company and at Company expense, an order or other
reasonable assurance that confidential treatment will be
accorded to such information.
(3) You and Your Representatives will not, without the prior
written consent of the Company, disclose to any person or
entity either the fact that discussions or negotiations are
taking place concerning a possible transaction with the Company
or any of the terms, conditions or other facts with respect to
any such possible transaction, including the status thereof.
(4) You also agree that except as stated in Exhibit A attached
hereto, for a period of three (3) years from the date hereof,
neither you nor any of Your Representatives will, without the
prior written consent of the Company:
(a) acquire, offer to acquire, or agree to
acquire, directly or indirectly, by purchase or
otherwise, any voting securities or direct or
indirect rights to acquire any voting securities of
the Company or any subsidiary thereof, or of any
successor to or person in control of the Company, or
any assets of the Company or any subsidiary or
division thereof or of any such successor or
controlling person;
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(b) make, or in any way participate, directly
or indirectly, in any 'solicitation' of 'proxies' (as
such terms are used in the rules of the Securities
and Exchange Commission) to vote, or seek to advise
or influence any person or entity with respect to the
voting, of any voting securities of the Company;
(c) make any public announcement with respect
to, or submit a proposal for, or offer of (with or
without conditions) any extraordinary transaction
(including but not limited to any tender or exchange
offer, merger, recapitalization or other business
combination) involving the Company or its securities
or assets; or
(d) form, join or in any way participate in a
'group' as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, in
connection with any of the foregoing.
You will promptly advise the Company of any inquiry or proposal made to you with
respect to any of the foregoing:
(5) In the event that the transaction whose possibility is
contemplated by this Agreement is not consummated, neither you
nor Your Representatives shall, without the prior written
consent of the Company, use any of the Confidential Material
for any purpose.
(6) If you determine that you do not wish to enter into a
transaction with the Company, you will promptly advise the
Company of that decision. In that event, or at any time upon
our request, all Confidential Material (and all copies,
summaries, extracts and notes of the contents or parts thereof)
shall be returned and not retained by you or Your
Representatives in any form for any reason; provided, however,
that you may destroy, in lieu of returning, any summaries,
notes, analyses or studies prepared by you and your advisers in
connection with the Confidential Material.
(7) You and Your Representatives shall have no obligation
hereunder with respect to any
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<PAGE>
information in the Confidential Material to the extent that
such information has been made public other than by acts of you
or Your Representatives in violation of this Agreement.
(8) You and Your Representatives shall direct all inquiries and
requests for Confidential Material to Goldman, Sachs & Co., and
you agree that you and Your Representatives shall not enter the
Company's premises without first receiving the Company's
permission and then only when accompanied by a representative
of the Company or Goldman, Sachs & Co.
(9) Although you understand that the Company has endeavored to
include in the Confidential Material information known to it
which it believes to be relevant for the purposes of your
investigation, you further understand that the Company does not
make any representation or warranty to the accuracy or
completeness of the Confidential Material. You agree that
neither the Company nor any of its officers, directors,
representatives or agents shall have any liability to you or
any of Your Representatives resulting from the use of the
Confidential Material by you or Your Representatives, except
such liability as may result from the terms of a definitive
agreement with respect to a transaction referred to above.
(10) You and Your Representatives agree that, without limiting
any other available remedies, the Company shall be entitled to
an injunction and other equitable relief in the event of Your
or Your Representatives' failure to comply with the provisions
of this Agreement. It is further understood and agreed that no
failure or delay by the Company in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other
or further exercise of any right, power or privilege.
(11) This letter agreement is for the benefit of the Company
and shall be governed by the internal laws of the State of New
York without regard to the principles of conflicts of laws.
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(12) As used in this Agreement, the following terms shall have
the following meaning:
(a) 'Company' shall mean, either collectively
or individually as the context may require, Trico
Products Corporation and its direct and indirect
subsidiaries.
(b) 'Your Representatives' shall mean,
collectively or individually as the context may
require, your parent corporations and its or their
other subsidiaries and affiliated companies, and your
and their respective directors, officers, employees,
attorneys, investment advisers, investment bankers,
commercial lenders, and all other advisers and
agents. As used herein, a person 'affiliated' with a
specified person shall mean a person that directly,
or indirectly through one or more intermediaries,
controls or is controlled by, or is under common
control with, the person specified.
Please acknowledge your agreement to the foregoing by countersigning this letter
in the space provided below.
Very truly yours,
TRICO PRODUCTS CORPORATION
By: /s/ Goldman, Sachs & Co.
Goldman, Sachs & Co.
on behalf of Trico Products Corporation
Confirmed and Agreed to:
STANT CORPORATION
by /s/ Ward Woods
Date: 8/17/94
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EXHIBIT A
The Bessemer Group, Incorporated ('BGI'), whose principal
business is owning and operating trust companies doing business in the states of
New York, New Jersey and Florida and in the Cayman Islands, may be alleged to be
an affiliate of Stant Corporation ('Stant') whose majority voting stockholder is
Bessemer Capital Partners, L.P. ('BCP') and of BCP's limited partner, Bessemer
Securities Corporation ('BSC') by virtue of being allegedly under common
control, through BSC, with Stant and BCP.
Five heirs of Henry Phipps, deceased, and the chief executive
officers of each of BGI and BSC are common directors of BGI, BSC and each of the
trust companies owned by BGI (with minor exceptions). The Chairman of the Board
of BGI is the same as the Chairman of the Board of BSC and is one of the heirs
of Henry Phipps, deceased, mentioned above.
Notwithstanding anything else in this agreement to the
contrary, nothing undertaken or agreed to by Stant shall in any way restrict the
normal investment activities of BGI or its subsidiaries with respect to
securities issued by the Company; provided, however, that Stant shall be fully
responsible for not disclosing the Confidential Material to BGI. It is
understood that the common officers and directors of BGI and BSC may receive the
Confidential Material in their capacity as officers and directors of BSC (or in
the capacity of president of one of the corporate general partners of the
general partner of BCP) but may not in any way disclose it to the other
personnel of BGI or use it in any way in BGI's business without causing Stant to
be in breach of this agreement. It is, of course, recognized by the parties to
this agreement that all of Stant, BCP, BSC, and BGI and the subsidiaries of BGI
are bound by the laws respecting purchasing and selling securities while in
possession of material, non-public information concerning the issuer of such
securities.
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