Common use of Dynamics Corp Clause in Contracts

Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the 23 affairs of a target corporation without prior approval of the remaining stockholders, provided that such laws were applicable only under certain conditions. The Company is incorporated under the laws of Delaware. Section 203 of the DGCL ('Section 203') prevents an 'Interested Stockholder' (defined generally as a person with 15% or more of the corporation's outstanding voting stock) from engaging in a 'Business Combination' (defined to include a variety of transactions, including mergers) with a Delaware corporation for three years following the date such person becomes an Interested Stockholder, unless (i) before such person became an Interested Stockholder, the board of directors of the corporation approved the transaction in which the Interested Stockholder became an Interested Stockholder or approved the Business Combination, or (ii) upon consummation of the transaction which resulted in the Interested Stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding stock held by directors who are also officers of the corporation and by certain employee stock ownership plans), or (iii) following the transaction in which such person became an Interested Stockholder, the Business Combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders by the affirmative vote of the holders of two-thirds of the outstanding voting stock of the corporation not owned by the Interested Stockholder. The Company's by-laws provide that the Company shall not be governed by Section 203 of the DGCL. If Section 203 were to apply for any reason, its prohibitions on Business Combinations would be inapplicable to the Offer, the purchase of the Sellers Shares and the Merger because the Board of Directors has approved the Tender Offer Agreement and the transactions contemplated thereby, including the Offer, subject to receipt of the Fairness Opinion, for purposes of Section 203 of the DGCL and has delivered the MOU to Purchaser. The restrictions of Section 203 are, accordingly, not applicable to Holdings, Purchaser or affiliates or associates of Purchaser as a result of the consummation of the transactions contemplated by this Offer to Purchase. The Michigan Control Share Statute provisions of the MBCA purport to apply to the corporations that have (A) 100 or more shareholders of record, (B) its principal place of business, principal office or substantial assets within Michigan, and (C)(i) more than 10% of its shareholders of record resident in Michigan, (ii) more than 10% of its shares owned of record by Michigan residents, or (iii) 10,000 shareholders of record in Michigan. On this basis, the Michigan Control Share Statute applies to the acquisition of the Shares, absent an exemption. The Michigan Control Share Statute generally requires that for a company to enter into a business combination with an interested stockholder it must obtain: (i) an advisory statement from the Board of Directors; (ii) approval of at least 90% of the votes of each class of voting stock outstanding; and (iii) two-thirds of the non-interested voting stock to approve the merger. The Company amended its by-laws to elect not to be governed by the Michigan Control Share Statute as permitted by Section 794 of the MBCA and no longer needs to comply with the Michigan Control Share Statute. Neither Purchaser nor Holdings has currently complied with any state takeover statute or regulation. Purchaser reserves the right to challenge the applicability or validity of any state law purportedly applicable to the Offer, the purchase of the Sellers Shares or the Merger, and nothing in this Offer to Purchase or any action taken in connection with the Offer, the purchase of the Sellers Shares 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, the purchase of the Sellers Shares or the Merger and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer, the purchase of the Sellers Shares or the merger, Purchaser might be required to file certain information with, or to receive approvals from, the relevant state authorities, and Purchaser might be unable to accept for payment or pay for Shares tendered pursuant to the Offer or be delayed in consummating the Offer, the purchase of the Sellers Shares or the Merger. In such case, Purchaser may not be obliged to accept for payment or pay for any Shares tendered pursuant to the Offer. Antitrust. The provisions of the HSR Act are applicable to the acquisition of Shares pursuant to the Purchase Agreement and the Offer. Under the provisions of the HSR Act applicable to the Offer, there is a 15-calendar day waiting period following the filing by Xxxxxxxxx, as the ultimate parent of the Purchaser, of a Notification and Report Form before the Offer may be consummated. A 30-calendar day waiting period applies to the purchase of the Sellers Shares. Such waiting periods may be extended if Xxxxxxxxx receives a request for additional information or documentary material from the Antitrust 24 Division of the Department of Justice (the 'Antitrust Division') or the Federal Trade Commission (the 'FTC'). The waiting period may also be terminated early. If, within the initial waiting period, either the Antitrust Division or the FTC requests additional information or material from Xxxxxxxxx concerning the Offer or the Purchase of Sellers Shares, the waiting period will be extended. 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 consent of Xxxxxxxxx. In practice, complying with a request for additional information or material can take a significant amount of time. The Antitrust Division and the FTC frequently scrutinize the legality under the antitrust laws of transactions such as Purchaser's acquisition of Shares pursuant to the Offer, the Purchase Agreement and the Merger. At any time before or after Purchaser's acquisition of Shares, 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 acquisition of Shares pursuant to the Offer or the Purchase Agreement or otherwise or seeking divestiture of Shares acquired by Purchaser or divestiture of substantial assets of Holdings or its subsidiaries. Private parties and state attorneys general may also bring legal action under the antitrust laws in certain circumstances. Based upon an examination of publicly available information relating to the business in which Holdings and the Company are engaged, Holdings and Purchaser believe that the acquisition of Shares by Purchaser will not violate the antitrust laws. Nevertheless, there can be no assurance that a challenge to the Offer or other acquisition of Shares by Purchaser on antitrust grounds will not be made or, if such challenge is made, of the result. See 'TENDER OFFER -- Certain Conditions to the Offer' for certain conditions of the Offer, including conditions with respect to litigation and certain governmental actions. Rule 13e-3. The Commission has adopted Rule 13e-3 under the Exchange Act ('Rule 13e-3'), which is applicable to certain 'going private' transactions. Rule 13e-3 requires, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the proposed transaction and the consideration offered to minority stockholders in such transaction be filed with the Commission and disclosed to stockholders prior to the consummation of the transaction. Holdings believes that Rule 13e-3 will not be applicable to the Merger or any other transaction covered by Rule 13e-3 because of the exemption afforded by Rule 13e-3(g)(1), among other things. However, under certain circumstances, Rule 13e-3 could be applicable to the Merger or other transaction in which Holdings seeks to acquire the remaining Shares it does not beneficially own following the purchase of Shares pursuant to the Offer. Holdings intends to comply with Rule 13e-3 with respect to any transaction that is subject to Rule 13e-3. FEES AND EXPENSES Purchaser has retained Xxxxxxxxxx to act as the Dealer Manager, Beacon Hill Partners, Inc. to act as Information Agent and The Bank of New York to act as the Depositary in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telegraph and personal interview and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer material to beneficial owners. The Dealer Manager is an affiliate of Holdings and Purchaser and will not be compensated for its services. The Information Agent and the Depositary each will receive reasonable and customary compensation for their services. Each of the Dealer Manager, Information Agent and Depositary will be reimbursed for certain reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under the federal securities laws. Except as described herein, Purchaser will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will be reimbursed by Purchaser for reasonable expenses incurred by them in forwarding material to their customers. 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 Offer or the acceptance thereof would not be in compliance with 25 the securities, 'blue sky' or other laws of such jurisdiction. None of Purchaser, Xxxxxxxxxx and Holdings is aware of any jurisdiction in which the making of the Offer or the tender of Shares in connection therewith would not be in compliance with the laws of such jurisdiction. If Purchaser or Holdings becomes aware of any state law prohibiting the making of the Offer or the acceptance of Shares pursuant thereto in such state, Purchaser will make a good faith effort to comply with any such state statute or seek to have such state statute declared inapplicable to the Offer. If, after such good faith effort, Purchaser cannot comply with any such state statute, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Shares in such jurisdictions. In any jurisdiction the securities laws or blue sky laws of which require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of Purchaser by the Dealer Manager or one or more registered brokers or dealers which are licensed under the laws of such jurisdiction. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF PURCHASER, XXXXXXXXXX OR HOLDINGS NOT CONTAINED IN THE OFFER, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PURCHASER, XXXXXXXXXX OR HOLDINGS. Purchaser, Xxxxxxxxxx and Holdings have filed with the Commission the Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional information with respect to the Offer. In addition, the Company will file with the Commission the Schedule 14D-9 (including exhibits) pursuant to Rule 14d-9 under the Exchange Act. Such Schedules and any amendments thereto, including exhibits, may be inspected and copies may be obtained in the manner set forth under 'TENDER OFFER -- Certain Information Concerning the Company' (except that they will not be available at the regional offices of the Commission). FMCC ACQUISITION CORP. June 18, 1997 26 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF HOLDINGS The following table sets forth the name, business address, present principal occupation or employment and five-year employment history of the directors and executive officers of Holdings. Unless otherwise indicated, the position listed is with Holdings. Each individual listed below is a citizen of Canada, other than Messrs. Xxxxxxxxx and Xxxxxxx who are citizens of the United States of America. None of the individuals named in Schedules I, II or III have, during the last five years, either (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the 23 affairs of a target corporation without prior approval of the remaining stockholders, provided that such laws were applicable only under certain conditions. The Company is incorporated under the laws of Delaware. Section 203 of the DGCL ('Section 203') prevents an 'Interested Stockholder' (defined generally prohibits a Delaware corporation such as a person with 15% or more of the corporation's outstanding voting stock) Company from engaging in a '"Business Combination' " (defined to include as a variety of transactions, including mergers, as set forth below) with an "Interested Stockholder" (defined generally as a Delaware corporation person that is the beneficial owner of 15% or more of a corporation's outstanding voting stock) for a period of three years following the 29 32 date that such person becomes became an Interested Stockholder, Stockholder unless (ia) before prior to the date such person became an Interested Stockholder, the board of directors of the corporation approved either the Business Combination or the transaction that resulted in which the Interested Stockholder became stockholder becoming an Interested Stockholder or approved the Business CombinationStockholder, or (iib) upon consummation of the transaction which that resulted in the Interested Stockholder stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (commenced, excluding stock held hold by directors who are also officers of the corporation and by certain employee stock ownership plans), plans that do not provide employees with the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer or (iiic) following on or subsequent to the transaction in which date such person became an Interested Stockholder, the Business Combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders Holders, and not by written consent, by the affirmative vote of the holders of two-thirds at least 66 2/3% of the outstanding voting stock of the corporation not owned by the Interested Stockholder. The Company's by-laws provide that the Company shall not be governed by Section 203 of the DGCL. If Section 203 were to apply for any reason, its prohibitions on Business Combinations would be inapplicable to the Offer, the purchase of the Sellers Shares and Under the Merger because Agreement, the Board of Directors has approved the Tender Offer Agreement and the transactions contemplated thereby, including the Offer, subject to receipt of the Fairness Opinion, for purposes of Company has taken such action sufficient to exempt the Merger from Section 203 of the DGCL and has delivered the MOU pursuant to Purchaser(a) above. The restrictions of Section 203 are, accordingly, not applicable to Holdings, Purchaser or affiliates or associates of Purchaser Except as a result of the consummation of the transactions contemplated by described in this Offer to Purchase. The Michigan Control Share Statute provisions of the MBCA purport to apply to the corporations that have (A) 100 or more shareholders of record, (B) its principal place of business, principal office or substantial assets within Michigan, and (C)(i) more than 10% of its shareholders of record resident in Michigan, (ii) more than 10% of its shares owned of record by Michigan residents, or (iii) 10,000 shareholders of record in Michigan. On this basis, the Michigan Control Share Statute applies to Parent and the acquisition of the Shares, absent an exemption. The Michigan Control Share Statute generally requires that for a company to enter into a business combination with an interested stockholder it must obtain: (i) an advisory statement from the Board of Directors; (ii) approval of at least 90% of the votes of each class of voting stock outstanding; and (iii) two-thirds of the non-interested voting stock to approve the merger. The Company amended its by-laws to elect Purchaser have not to be governed by the Michigan Control Share Statute as permitted by Section 794 of the MBCA and no longer needs to comply with the Michigan Control Share Statute. Neither Purchaser nor Holdings has currently complied with any state takeover statute laws. Should any government official or regulation. Purchaser reserves the right third party seek to challenge the applicability or validity of apply any state takeover law purportedly applicable to the Offer, the purchase of the Sellers Shares or the Merger, and nothing Offer other than those described in this Offer to Purchase or any action taken in connection with the OfferPurchase, the purchase of Parent and the Sellers Shares Purchaser will take such action as then appears desirable and currently anticipate that they will contest the validity or the Merger is intended as a waiver applicability of such rightstatute in appropriate court proceedings. If it is asserted that any one or more state takeover statute is applicable laws other than those described in this Offer to Purchase apply to the Offer, the purchase of the Sellers Shares or the Merger Offer and an appropriate court does not determine that it is inapplicable not determined by all appropriate courts that such act or acts do not apply or are invalid as applied to the Offer, the purchase of Parent and the Sellers Shares or the merger, Purchaser might be required to file certain information with, or to receive approvals from, the relevant state authorities. In addition, and if enjoined, the Purchaser might be unable to accept for payment or pay for any Shares tendered pursuant to the Offer Offer, or be delayed in consummating the Offer, the purchase of the Sellers Shares or the Merger. In such case, the Purchaser may not be obliged obligated to accept for payment or pay for any Shares tendered pursuant to the Offer. Antitrust. The provisions of the HSR Act are applicable to the acquisition of Shares pursuant to the Purchase Agreement and the Offer. Under the provisions of the HSR Act applicable to the Offer, there is a 15-calendar day waiting period following the filing by Xxxxxxxxx, as the ultimate parent of the Purchaser, of a Notification and Report Form before the Offer may be consummated. A 30-calendar day waiting period applies to the purchase of the Sellers Shares. Such waiting periods may be extended if Xxxxxxxxx receives a request for additional information or documentary material from the Antitrust 24 Division of the Department of Justice (the 'Antitrust Division') or the Federal Trade Commission (the 'FTC'). The waiting period may also be terminated early. If, within the initial waiting period, either the Antitrust Division or the FTC requests additional information or material from Xxxxxxxxx concerning the Offer or the Purchase of Sellers Shares, the waiting period will be extended. 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 consent of Xxxxxxxxx. In practice, complying with a request for additional information or material can take a significant amount of time. The Antitrust Division and the FTC frequently scrutinize the legality under the antitrust laws of transactions such as Purchaser's acquisition of Shares pursuant to the Offer, the Purchase Agreement and the Merger. At any time before or after Purchaser's acquisition of Shares, 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 acquisition of Shares pursuant to the Offer or the Purchase Agreement or otherwise or seeking divestiture of Shares acquired by Purchaser or divestiture of substantial assets of Holdings or its subsidiaries. Private parties and state attorneys general may also bring legal action under the antitrust laws in certain circumstances. Based upon an examination of publicly available information relating to the business in which Holdings and the Company are engaged, Holdings and Purchaser believe that the acquisition of Shares by Purchaser will not violate the antitrust laws. Nevertheless, there can be no assurance that a challenge to the Offer or other acquisition of Shares by Purchaser on antitrust grounds will not be made or, if such challenge is made, of the resulttendered. See 'TENDER OFFER -- Certain Conditions to the Offer' for certain conditions of the Offer, including conditions with respect to litigation and certain governmental actions. Rule 13e-3. The Commission has adopted Rule 13e-3 under the Exchange Act ('Rule 13e-3'), which is applicable to certain 'going private' transactions. Rule 13e-3 requires, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the proposed transaction and the consideration offered to minority stockholders in such transaction be filed with the Commission and disclosed to stockholders prior to the consummation of the transaction. Holdings believes that Rule 13e-3 will not be applicable to the Merger or any other transaction covered by Rule 13e-3 because of the exemption afforded by Rule 13e-3(g)(1), among other things. However, under certain circumstances, Rule 13e-3 could be applicable to the Merger or other transaction in which Holdings seeks to acquire the remaining Shares it does not beneficially own following the purchase of Shares pursuant to the Offer. Holdings intends to comply with Rule 13e-3 with respect to any transaction that is subject to Rule 13e-3. FEES AND EXPENSES Purchaser has retained Xxxxxxxxxx to act as the Dealer Manager, Beacon Hill Partners, Inc. to act as Information Agent and The Bank of New York to act as the Depositary in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telegraph and personal interview and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer material to beneficial owners. The Dealer Manager is an affiliate of Holdings and Purchaser and will not be compensated for its services. The Information Agent and the Depositary each will receive reasonable and customary compensation for their services. Each of the Dealer Manager, Information Agent and Depositary will be reimbursed for certain reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under the federal securities laws. Except as described herein, Purchaser will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will be reimbursed by Purchaser for reasonable expenses incurred by them in forwarding material to their customers. 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 Offer or the acceptance thereof would not be in compliance with 25 the securities, 'blue sky' or other laws of such jurisdiction. None of Purchaser, Xxxxxxxxxx and Holdings is aware of any jurisdiction in which the making of the Offer or the tender of Shares in connection therewith would not be in compliance with the laws of such jurisdiction. If Purchaser or Holdings becomes aware of any state law prohibiting the making of the Offer or the acceptance of Shares pursuant thereto in such state, Purchaser will make a good faith effort to comply with any such state statute or seek to have such state statute declared inapplicable to the Offer. If, after such good faith effort, Purchaser cannot comply with any such state statute, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Shares in such jurisdictions. In any jurisdiction the securities laws or blue sky laws of which require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of Purchaser by the Dealer Manager or one or more registered brokers or dealers which are licensed under the laws of such jurisdiction. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF PURCHASER, XXXXXXXXXX OR HOLDINGS NOT CONTAINED IN THE OFFER, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PURCHASER, XXXXXXXXXX OR HOLDINGS. Purchaser, Xxxxxxxxxx and Holdings have filed with the Commission the Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional information with respect to the Offer. In addition, the Company will file with the Commission the Schedule 14D-9 (including exhibits) pursuant to Rule 14d-9 under the Exchange Act. Such Schedules and any amendments thereto, including exhibits, may be inspected and copies may be obtained in the manner set forth under 'TENDER OFFER -- Certain Information Concerning the Company' (except that they will not be available at the regional offices of the Commission). FMCC ACQUISITION CORP. June 18, 1997 26 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF HOLDINGS The following table sets forth the name, business address, present principal occupation or employment and five-year employment history of the directors and executive officers of Holdings. Unless otherwise indicated, the position listed is with Holdings. Each individual listed below is a citizen of Canada, other than Messrs. Xxxxxxxxx and Xxxxxxx who are citizens of the United States of America. None of the individuals named in Schedules I, II or III have, during the last five years, either (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such lawsSection 14.

Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the 23 affairs of a target corporation without prior approval of the remaining stockholders, provided that such laws were applicable only under certain conditions. The Company is incorporated under the laws of Delaware. Section 203 of the DGCL ('Section 203') Delaware Law prevents an '"Interested Stockholder' " (defined generally as a person with 15% or more of the corporation's outstanding voting stock) from engaging in a '"Business Combination' " (defined to include a variety of transactions, including mergers) with a Delaware corporation for three years following the date such person becomes an Interested Stockholder, unless (i) before such person became an Interested Stockholder, the board of directors of the corporation approved the transaction in which the Interested Stockholder became an Interested Stockholder or approved the Business Combination, or (ii) upon consummation of the transaction which resulted in the Interested Stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding stock held by directors who are also officers of the corporation and by certain employee stock ownership plans), or (iii) following the transaction in which such person became an Interested Stockholder, the Business Combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders by the affirmative vote of the holders of two-thirds of the outstanding voting stock of the corporation not owned by the Interested Stockholder. The Company's by-laws provide that the Company shall not be governed by Section 203 of the DGCL. If Section 203 were to apply for any reason, its prohibitions on Business Combinations would be inapplicable to the Offer, the purchase of the Sellers Shares and the Merger because the Board of Directors of the Company has unanimously approved the Tender Offer Merger Agreement and the transactions contemplated thereby, including the Offer, subject to receipt Offer and the execution and delivery of the Fairness OpinionStockholders Agreement, for purposes of Section 203 of the DGCL Delaware Law, and has delivered the MOU to Purchaser. The restrictions of such Section 203 are, accordingly, not applicable to HoldingsParent, the Purchaser or affiliates or associates of the Purchaser as a result of the execution and delivery of the Stockholders Agreement or the consummation of the transactions contemplated by this Offer to Purchase. The Michigan Control Share Statute provisions of Neither the MBCA purport to apply to the corporations that have (A) 100 or more shareholders of record, (B) its principal place of business, principal office or substantial assets within Michigan, and (C)(i) more than 10% of its shareholders of record resident in Michigan, (ii) more than 10% of its shares owned of record by Michigan residents, or (iii) 10,000 shareholders of record in Michigan. On this basis, the Michigan Control Share Statute applies to the acquisition of the Shares, absent an exemption. The Michigan Control Share Statute generally requires that for a company to enter into a business combination with an interested stockholder it must obtain: (i) an advisory statement from the Board of Directors; (ii) approval of at least 90% of the votes of each class of voting stock outstanding; and (iii) two-thirds of the non-interested voting stock to approve the merger. The Company amended its by-laws to elect not to be governed by the Michigan Control Share Statute as permitted by Section 794 of the MBCA and no longer needs to comply with the Michigan Control Share Statute. Neither Purchaser nor Holdings 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, the purchase of the Sellers Shares Offer or the Merger, Merger and nothing in this Offer to Purchase or any action taken in connection with the Offer, the purchase of the Sellers Shares 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, the purchase of the Sellers Shares Offer or the Merger and an appropriate court does not determine that it is inapplicable or invalid as applied to the OfferOffer or the Merger, the purchase of the Sellers Shares or the merger, 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 Offer, or be delayed in consummating the Offer, the purchase of the Sellers Shares Offer or the Merger. In such case, the Purchaser may not be obliged to accept for payment or pay for any Shares tendered pursuant to the Offer. Antitrust. The provisions of the HSR Act are applicable to the acquisition of Shares pursuant to the Purchase Agreement and the Offer. Under the provisions of the HSR Act applicable to the Offer, there is the purchase of Shares under the Offer may be consummated following the expiration of a 15-calendar day waiting period following the filing by Xxxxxxxxx, as the ultimate parent of the Purchaser, 32 Parent of a Notification and Report Form before the Offer may be consummated. A 30-calendar day waiting period applies with respect to the purchase of the Sellers Shares. Such waiting periods may be extended if Xxxxxxxxx Offer, unless Parent receives a request for additional information or documentary material from the Antitrust 24 Division or the FTC or unless early termination of the Department of Justice (the 'Antitrust Division') or the Federal Trade Commission (the 'FTC'). The waiting period may also be terminated earlyis granted. Parent currently anticipates making such filing on or about July 20, 1995. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC requests additional information or material from Xxxxxxxxx Parent concerning the Offer or the Purchase of Sellers SharesOffer, the waiting period will be extendedextended 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 XxxxxxxxxParent. In practice, complying with a request for additional information or material can take a significant amount of time. The 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 FTC 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 Purchase Agreement and the Merger. At any time before or after Purchaser's acquisition of Shares, 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 acquisition purchase of Shares pursuant to the Offer or the Purchase Agreement or otherwise consummation of the Merger or seeking the divestiture of Shares acquired by the Purchaser or the divestiture of substantial assets of Holdings Parent or its subsidiaries, or the Company or its subsidiaries. Private parties and state attorneys general may also bring legal action under the antitrust laws in under certain circumstances. Based upon an examination of publicly available information relating to the business in which Holdings and the Company are engaged, Holdings and Purchaser believe that the acquisition of Shares by Purchaser will not violate the antitrust laws. Nevertheless, there There can be no assurance that a challenge to the Offer or other acquisition of Shares by Purchaser on antitrust grounds will not be made or, if such a challenge is made, of the resultresults thereof. See 'TENDER OFFER -- Certain Conditions Foreign Approvals. According to the Company Form 10-K, the Company owns property and conducts business in a number of other foreign countries and jurisdictions. In connection with the acquisition of the Shares pursuant to the Offer' for , the laws of certain conditions of those foreign countries and jurisdictions may require the filing of information with, or the obtaining of the Offerapproval of, including conditions with respect to litigation governmental authorities in such countries and certain governmental actions. Rule 13e-3jurisdictions. The Commission has adopted Rule 13e-3 under governments in such countries and jurisdictions might attempt to impose additional conditions on the Exchange Act ('Rule 13e-3'), which is applicable to certain 'going private' transactions. Rule 13e-3 requires, among other things, that certain financial information concerning the Company Company's operations conducted in such countries and certain information relating to the fairness jurisdictions as a result of the proposed transaction and the consideration offered to minority stockholders in such transaction be filed with the Commission and disclosed to stockholders prior to the consummation acquisition of the transaction. Holdings believes that Rule 13e-3 will not be applicable to the Merger or any other transaction covered by Rule 13e-3 because of the exemption afforded by Rule 13e-3(g)(1), among other things. However, under certain circumstances, Rule 13e-3 could be applicable to the Merger or other transaction in which Holdings seeks to acquire the remaining Shares it does not beneficially own following the purchase of Shares pursuant to the Offer. Holdings intends There can be no assurance that the Purchaser will be able to cause the Company or its subsidiaries to satisfy or comply with Rule 13e-3 with respect to any transaction such laws or that is subject to Rule 13e-3. FEES AND EXPENSES Purchaser has retained Xxxxxxxxxx to act as the Dealer Manager, Beacon Hill Partners, Inc. to act as Information Agent and The Bank of New York to act as the Depositary in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telegraph and personal interview and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer material to beneficial owners. The Dealer Manager is an affiliate of Holdings and Purchaser and compliance or noncompliance will not be compensated have adverse consequences for its services. The Information Agent and the Depositary each will receive reasonable and customary compensation for their services. Each Company or any subsidiary after purchase of the Dealer Manager, Information Agent and Depositary will be reimbursed for certain reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under the federal securities laws. Except as described herein, Purchaser will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will be reimbursed by Purchaser for reasonable expenses incurred by them in forwarding material to their customers. 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 Offer or the acceptance thereof would not be in compliance with 25 the securities, 'blue sky' or other laws of such jurisdiction. None of Purchaser, Xxxxxxxxxx and Holdings is aware of any jurisdiction in which the making of the Offer or the tender of Shares in connection therewith would not be in compliance with the laws of such jurisdiction. If Purchaser or Holdings becomes aware of any state law prohibiting the making of the Offer or the acceptance of Shares pursuant thereto in such state, Purchaser will make a good faith effort to comply with any such state statute or seek to have such state statute declared inapplicable to the Offer. If, after such good faith effort, Purchaser cannot comply with any such state statute, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Shares in such jurisdictions. In any jurisdiction the securities laws or blue sky laws of which require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of Purchaser by the Dealer Manager or one or more registered brokers or dealers which are licensed under the laws of such jurisdiction. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF PURCHASER, XXXXXXXXXX OR HOLDINGS NOT CONTAINED IN THE OFFER, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PURCHASER, XXXXXXXXXX OR HOLDINGS. Purchaser, Xxxxxxxxxx and Holdings have filed with the Commission the Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional information with respect to the Offer. In addition, the Company will file with the Commission the Schedule 14D-9 (including exhibits) pursuant to Rule 14d-9 under the Exchange Act. Such Schedules and any amendments thereto, including exhibits, may be inspected and copies may be obtained in the manner set forth under 'TENDER OFFER -- Certain Information Concerning the Company' (except that they will not be available at the regional offices of the Commission). FMCC ACQUISITION CORP. June 18, 1997 26 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF HOLDINGS The following table sets forth the name, business address, present principal occupation or employment and five-year employment history of the directors and executive officers of Holdings. Unless otherwise indicated, the position listed is with Holdings. Each individual listed below is a citizen of Canada, other than Messrs. Xxxxxxxxx and Xxxxxxx who are citizens of the United States of America. None of the individuals named in Schedules I, II or III have, during the last five years, either (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the 23 affairs of a target corporation without prior approval of the remaining stockholdersshareholders, provided that such laws were applicable only under certain conditions. The Company is incorporated under the laws of Delaware. Section 203 607.0901 of the DGCL ('Section 203') prevents an 'Interested Stockholder' (defined generally FBCA purports to regulate certain business combinations of a corporation organized under Florida law, such as the Company, with a person with 15shareholder beneficially owning 10% or more of the corporation's outstanding voting stock) from engaging in a 'Business Combination' (defined to include a variety of transactions, including mergers) with a Delaware corporation for three years following the date such person becomes an Interested Stockholder, unless (i) before such person became an Interested Stockholder, the board of directors of the corporation approved the transaction in which the Interested Stockholder became an Interested Stockholder or approved the Business Combination, or (ii) upon consummation of the transaction which resulted in the Interested Stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least 85% of the voting stock of such corporation after the date the relevant person or entity first becomes a 10% shareholder. Section 607.0901 provides that the corporation outstanding shall not engage at the any time the transaction commenced (excluding stock held by directors who are also officers of the corporation and by certain employee stock ownership plans), or (iii) following the transaction in which any business combination with such person became an Interested Stockholder, the Business Combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders by the affirmative vote shareholder without approval of the holders of two-thirds of the outstanding voting stock of shares (other than the corporation not shares owned by the Interested Stockholder10% shareholder), with certain exceptions, including a business combination approved by a majority of the disinterested directors of the corporation. The Company's by-laws provide that the Company shall not be governed by Section 203 of the DGCL. If Section 203 were to apply for any reason, its prohibitions on Business Combinations would be inapplicable to the Offer, the purchase of the Sellers Shares and the Merger because the Board of Directors has unanimously approved the Tender Offer Merger Agreement and the transactions contemplated thereby, including the OfferMerger, and, therefore, Section 607.0901 of the FBCA is inapplicable to the Merger. Section 607.0902 of the FBCA provides that an acquiror that acquires 20% or more of the shares of a Florida corporation having certain contacts in Florida may not vote such shares without the approval of a majority of the outstanding shares not owned by the acquiror, officers of the corporation or employee directors of the corporation subject to receipt certain exceptions, including approval of such acquisition by such corporation's board of directors. The Company's Board of Directors has approved the acquisition of Shares pursuant to the Merger Agreement (including the Offer and the Merger) and the Option Agreement and, therefore, Section 607.0902 of the Fairness OpinionFBCA is inapplicable to such acquisitions. Based on information supplied by the Company, for purposes of Section 203 of the DGCL and has delivered the MOU to Purchaser. The restrictions of Section 203 are, accordingly, Purchaser does not applicable to Holdings, Purchaser or affiliates or associates of Purchaser as a result of the consummation of the transactions contemplated by this Offer to Purchase. The Michigan Control Share Statute provisions of the MBCA believe that any other state takeover statutes purport to apply to the corporations that have (A) 100 or more shareholders of record, (B) its principal place of business, principal office or substantial assets within Michigan, and (C)(i) more than 10% of its shareholders of record resident in Michigan, (ii) more than 10% of its shares owned of record by Michigan residents, or (iii) 10,000 shareholders of record in Michigan. On this basis, the Michigan Control Share Statute applies to the acquisition of the Shares, absent an exemption. The Michigan Control Share Statute generally requires that for a company to enter into a business combination with an interested stockholder it must obtain: (i) an advisory statement from the Board of Directors; (ii) approval of at least 90% of the votes of each class of voting stock outstanding; and (iii) two-thirds of the non-interested voting stock to approve the merger. The Company amended its by-laws to elect not to be governed by the Michigan Control Share Statute as permitted by Section 794 of the MBCA and no longer needs to comply with the Michigan Control Share StatuteOffer. Neither the Purchaser nor Holdings 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, the purchase of the Sellers Shares Offer or the Merger, Merger and nothing in this Offer to Purchase or any action taken in connection with the Offer, the purchase of the Sellers Shares 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, the purchase of the Sellers Shares or the Merger Offer and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer, the purchase of the Sellers Shares or the merger, 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 Offer, or be delayed in consummating the Offer, the purchase of the Sellers Shares Offer or the Merger. In such case, the Purchaser may not be obliged to accept for payment or pay for any Shares tendered pursuant to the Offer. Antitrust. The provisions of the HSR Act are applicable to the acquisition of Shares pursuant to the Purchase Agreement and the Offer. Under the provisions of the HSR Act applicable to the Offer, there is a 15-calendar day waiting period following the filing by Xxxxxxxxx, as the ultimate parent of the Purchaser, of Parent filed a Notification and Report Form before with respect to the Offer may be consummatedunder the HSR Act on December 21, 1994. A 30-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 calendar day after the date such form is filed, unless early termination of the waiting period applies to is granted. In addition, the purchase of Antitrust Division or the Sellers Shares. Such FTC may extend the waiting periods may be extended if Xxxxxxxxx receives a request for period by requesting additional information or documentary material from the Antitrust 24 Division of the Department of Justice (the 'Antitrust Division') or the Federal Trade Commission (the 'FTC')Parent. The waiting period may also be terminated early. IfIf such request is made, within the initial waiting period, either the Antitrust Division or the FTC requests additional information or material from Xxxxxxxxx concerning the Offer or the Purchase of Sellers Shares, the such waiting period will be extendedexpire at 11:59 p.m., New York City time, on the 10th day after 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 XxxxxxxxxParent. In practice, complying with a request for additional information or material can take a significant amount of time. The 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 FTC 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 Purchase Agreement and the Merger. At any time before or after Purchaser's acquisition of Shares, 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 acquisition purchase of Shares pursuant to the Offer or seeking the Purchase Agreement or otherwise or seeking divestiture of Shares acquired by the Purchaser or the divestiture of substantial assets of Holdings Parent or its subsidiaries, or the Company or its subsidiaries. Private parties and state attorneys general may also bring legal action under the antitrust laws in under certain circumstances. Based upon an examination of publicly available information relating to the business in which Holdings and the Company are engaged, Holdings and Purchaser believe that the acquisition of Shares by Purchaser will not violate the antitrust laws. Nevertheless, there There can be no assurance that a challenge to the Offer or other acquisition of Shares by Purchaser on antitrust grounds will not be made or, if such a challenge is made, of the result. See 'TENDER OFFER -- Certain Conditions to the Offer' for certain conditions of the Offer, including conditions with respect to litigation and certain governmental actions. Rule 13e-3. The Commission has adopted Rule 13e-3 under the Exchange Act ('Rule 13e-3'), which is applicable to certain 'going private' transactions. Rule 13e-3 requires, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the proposed transaction and the consideration offered to minority stockholders in such transaction be filed with the Commission and disclosed to stockholders prior to the consummation of the transaction. Holdings believes that Rule 13e-3 will not be applicable to the Merger or any other transaction covered by Rule 13e-3 because of the exemption afforded by Rule 13e-3(g)(1), among other things. However, under certain circumstances, Rule 13e-3 could be applicable to the Merger or other transaction in which Holdings seeks to acquire the remaining Shares it does not beneficially own following the purchase of Shares pursuant to the Offer. Holdings intends to comply with Rule 13e-3 with respect to any transaction that is subject to Rule 13e-3. FEES AND EXPENSES Purchaser has retained Xxxxxxxxxx to act as the Dealer Manager, Beacon Hill Partners, Inc. to act as Information Agent and The Bank of New York to act as the Depositary in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telegraph and personal interview and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer material to beneficial owners. The Dealer Manager is an affiliate of Holdings and Purchaser and will not be compensated for its services. The Information Agent and the Depositary each will receive reasonable and customary compensation for their services. Each of the Dealer Manager, Information Agent and Depositary will be reimbursed for certain reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under the federal securities laws. Except as described herein, Purchaser will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will be reimbursed by Purchaser for reasonable expenses incurred by them in forwarding material to their customers. 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 Offer or the acceptance thereof would not be in compliance with 25 the securities, 'blue sky' or other laws of such jurisdiction. None of Purchaser, Xxxxxxxxxx and Holdings is aware of any jurisdiction in which the making of the Offer or the tender of Shares in connection therewith would not be in compliance with the laws of such jurisdiction. If Purchaser or Holdings becomes aware of any state law prohibiting the making of the Offer or the acceptance of Shares pursuant thereto in such state, Purchaser will make a good faith effort to comply with any such state statute or seek to have such state statute declared inapplicable to the Offer. If, after such good faith effort, Purchaser cannot comply with any such state statute, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Shares in such jurisdictions. In any jurisdiction the securities laws or blue sky laws of which require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of Purchaser by the Dealer Manager or one or more registered brokers or dealers which are licensed under the laws of such jurisdiction. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF PURCHASER, XXXXXXXXXX OR HOLDINGS NOT CONTAINED IN THE OFFER, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PURCHASER, XXXXXXXXXX OR HOLDINGS. Purchaser, Xxxxxxxxxx and Holdings have filed with the Commission the Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional information with respect to the Offer. In addition, the Company will file with the Commission the Schedule 14D-9 (including exhibits) pursuant to Rule 14d-9 under the Exchange Act. Such Schedules and any amendments thereto, including exhibits, may be inspected and copies may be obtained in the manner set forth under 'TENDER OFFER -- Certain Information Concerning the Company' (except that they will not be available at the regional offices of the Commission). FMCC ACQUISITION CORP. June 18, 1997 26 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF HOLDINGS The following table sets forth the name, business address, present principal occupation or employment and five-year employment history of the directors and executive officers of Holdings. Unless otherwise indicated, the position listed is with Holdings. Each individual listed below is a citizen of Canada, other than Messrs. Xxxxxxxxx and Xxxxxxx who are citizens of the United States of America. None of the individuals named in Schedules I, II or III have, during the last five years, either (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such lawsresults thereof.