OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
SUMMIT AUTONOMOUS INC.
(FORMERLY KNOWN AS SUMMIT TECHNOLOGY, INC.)
AT
$19.00 NET PER SHARE
BY
ALCON ACQUISITION CORP.,
A WHOLLY OWNED SUBSIDIARY OF
ALCON HOLDINGS INC.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 30, 2000,
UNLESS THE OFFER IS EXTENDED.
--------------------------------------------------------------------------------
THE OFFER IS BEING MADE PURSUANT TO THE AGREEMENT AND PLAN OF MERGER DATED
AS OF MAY 26, 2000, AMONG ALCON HOLDINGS INC., ALCON ACQUISITION CORP. AND
SUMMIT AUTONOMOUS INC. (THE "COMPANY"). THE BOARD OF DIRECTORS OF THE COMPANY
HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT, THE OFFER, THE MERGER (EACH AS
DEFINED HEREIN) AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT;
HAS UNANIMOUSLY 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
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND
TENDER THEIR SHARES (AS DEFINED HEREIN) PURSUANT TO THE OFFER.
--------------------------
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TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF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 THAT WOULD REPRESENT AT LEAST TWO-THIRDS OF ALL OUTSTANDING SHARES ON A
FULLY DILUTED BASIS.
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
facsimile 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 ChaseMellon
Shareholder Services, L.L.C. (the "DEPOSITARY") and deliver the certificates for
such Shares to the Depositary along with the Letter of Transmittal (or such
facsimile) or, in the case of a book-entry transfer effected pursuant to the
procedures described in Section 2, deliver an Agent's Message (as defined
herein) and any other required documents to the Depositary and deliver such
Shares pursuant to the procedures for book-entry transfer described in
Section 2, in each case prior to the expiration of the Offer, 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 procedures for guaranteed delivery described in
Section 2.
Questions and requests for assistance may be directed to ChaseMellon
Shareholder Services, L.L.C. (the "INFORMATION AGENT") or to Xxxxxxx, Xxxxx &
Co. at their respective addresses and telephone numbers set forth on the back
cover of this Offer to Purchase. Additional copies of this Offer to Purchase,
the Letter of Transmittal, the Notice of Guaranteed Delivery or any other tender
materials may be obtained from the Information Agent or from brokers, dealers,
banks, trust companies or other nominees.
--------------------------
THE DEALER MANAGER FOR THE OFFER IS:
XXXXXXX, XXXXX & CO.
June 5, 2000
TABLE OF CONTENTS
PAGE
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SUMMARY TERM SHEET.......................................... 3
INTRODUCTION................................................ 7
THE TENDER OFFER............................................ 9
1. Terms of the Offer.................................... 9
2. Procedures for Tendering Shares....................... 11
3. Withdrawal Rights..................................... 14
4. Acceptance for Payment and Payment.................... 15
5. Certain U.S. Federal Income Tax Consequences.......... 16
6. Price Range of the Shares; Dividends on the Shares.... 17
7. Effect of the Offer on the Market for the Shares;
Share Quotation; Exchange Act
Registration; Margin Regulations..................... 17
8. Certain Information Concerning the Company............ 18
9. Certain Information Concerning Parent and the
Purchaser............................................... 20
10. Source and Amount of Funds............................ 21
11. Contacts and Transactions with the Company; Background
of the Offer............................................ 21
12. Purpose of the Offer; the Merger Agreement; Plans for
the Company............................................. 22
13. Dividends and Distributions........................... 35
14. Certain Conditions of the Offer....................... 35
15. Certain Legal Matters................................. 37
16. Fees and Expenses..................................... 38
17. Miscellaneous......................................... 39
SCHEDULE I-- Directors and Executive Officers of Parent, the
Purchaser and Nestle S.A........................ I-1
2
SUMMARY TERM SHEET
Alcon Acquisition Corp. is offering to purchase all of the outstanding
common stock (including the associated preferred stock purchase rights) of
Summit Autonomous Inc. (formerly known as Summit Technology, Inc.) for $19.00
net per share, in cash. The following are some of the questions you, as a
stockholder of Summit Autonomous Inc., may have and answers to those questions.
We urge you to read carefully the remainder of this offer to purchase and the
letter of transmittal because the information in this summary is not complete.
Additional important information is contained in the remainder of this offer to
purchase and the letter of transmittal.
- WHO IS OFFERING TO BUY MY SHARES?
Our name is Alcon Acquisition Corp. We are a Massachusetts corporation
formed for the purpose of making a tender offer for all of the outstanding
common stock of Summit Autonomous Inc. We are a wholly owned subsidiary of Alcon
Holdings Inc., a Delaware corporation. Alcon Holdings Inc. is an indirect wholly
owned subsidiary of Nestle S.A., a Swiss corporation. See "Introduction" and
Section 9--"Certain Information Concerning Parent and the Purchaser"--of this
offer to purchase.
- WHAT SHARES ARE BEING SOUGHT IN THE OFFER?
We are seeking to purchase all of the outstanding common stock of Summit
Autonomous Inc. See "Introduction" and Section 1--"Terms of the Offer"--of this
offer to purchase.
- HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I HAVE
TO PAY ANY FEES OR COMMISSIONS?
We are offering to pay $19.00 per share, net to you, in cash. If you are the
record owner of your shares and you tender your shares to us in the offer, you
will not have to pay brokerage fees or similar expenses. If you own your shares
through a broker or other nominee, and your broker tenders your shares on your
behalf, your broker or nominee may charge you a fee for doing so. You should
consult your broker or nominee to determine whether any charges will apply. See
"Introduction" and Section 1--"Terms of the Offer"--of this offer to purchase.
- DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Alcon Holdings Inc., our parent company, will provide us with sufficient
funds to acquire all tendered shares and any shares to be acquired in the merger
that is expected to follow the successful completion of the offer. The offer is
not conditioned upon any financing arrangements. See Section 10--"Source and
Amount of Funds"--of this offer to purchase.
- IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not think our financial condition is relevant to your decision whether
to tender shares and accept the offer because:
- the offer is being made for all outstanding shares solely for cash,
- the offer is not subject to any financing condition, and
- if we consummate the offer, we will acquire all remaining shares for the
same cash price in the merger.
- HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have until 12:00 midnight, New York City time, on Friday, June 30,
2000, to tender your shares in the offer, unless the expiration date of the
offer is extended. Further, if you cannot deliver everything that is required in
order to make a valid tender by that time, you may be able to use a guaranteed
delivery procedure, which is described later in this offer to purchase. See
Section 1--"Terms of the Offer"--and Section 2--"Procedures for Tendering
Shares"--of this offer to purchase.
3
- CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
Subject to the terms of the merger agreement, we can extend the offer. We
have also agreed in the merger agreement that:
- at the request of Summit Autonomous Inc., if less than two-thirds of the
shares of Summit Autonomous Inc. outstanding on a fully diluted basis have
been tendered, we will extend the offer in such increments as we may
determine until such condition is satisfied or waived, or until we
reasonably determine that the condition is not capable of being satisfied;
however, we are not required to extend the offer beyond November 26, 2000;
and
- we may elect to provide a "subsequent offering period" for the offer. A
subsequent offering period, if one is included, will be an additional
period of time beginning after we have purchased shares tendered during
the offer, during which stockholders may tender, but not withdraw, their
shares and receive the offer consideration. We do not currently intend to
include a subsequent offering period, although we reserve the right to do
so.
See Section 1--"Terms of the Offer"--of this offer to purchase.
- HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform XxxxxXxxxxx Shareholder Services,
L.L.C., the depositary for the offer, of that fact and will make a public
announcement of the extension, not later than 9:00 a.m., New York City time, on
the next business day after the day on which the offer was scheduled to expire.
See Section 1--"Terms of the Offer"--of this offer to purchase.
- WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
There is no financing condition to the offer; however:
- we are not obligated to purchase any tendered shares unless the number of
shares validly tendered and not withdrawn before the expiration date of
the offer represents at least two-thirds of the shares of Summit
Autonomous Inc. outstanding on a fully diluted basis. We have agreed not
to waive this minimum tender condition without the consent of Summit
Autonomous Inc.
- we are not obligated to purchase any tendered shares if:
- there is a material adverse change in Summit Autonomous Inc. or its
business; or
- the applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 has not expired or been terminated.
The offer is also subject to a number of other conditions. See
Section 14--"Certain Conditions of the Offer"--of this offer to purchase.
- HOW DO I TENDER MY SHARES?
To tender shares, you must deliver the certificates representing your
shares, together with a completed letter of transmittal and any other documents
required, to ChaseMellon Shareholder Services, L.L.C., the depositary for the
offer, not later than the time the tender offer expires. If your shares are held
in street name, the shares can be tendered by your nominee through The
Depository Trust Company. If you cannot deliver something that is required to be
delivered to the depositary by the expiration of the tender offer, you may get a
little extra time to do so by having a broker, a bank or other fiduciary that is
a member of the Securities Transfer Agents Medallion Program or other eligible
institution guarantee that the missing items will be received by the depositary
within three Nasdaq trading days. For the tender to be valid, however, the
depositary must receive the missing items within that three trading day period.
See Section 2--"Procedures for Tendering Shares"--of this offer to purchase.
4
- UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw shares at any time until the offer has expired and, if we
have not by Friday, August 4, 2000, agreed to accept your shares for payment,
you can withdraw them at any time after such time until we accept shares for
payment. This right to withdraw will not apply to any subsequent offering
period, if one is included. See Section 1--"Terms of the Offer"--and
Section 3--"Withdrawal Rights"--of this offer to purchase.
- HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the depositary while you
still have the right to withdraw the shares. See Section 1--"Terms of the
Offer"--and Section 3--"Withdrawal Rights"--of this offer to purchase.
- WHAT DOES THE SUMMIT AUTONOMOUS INC. BOARD OF DIRECTORS THINK OF THE OFFER?
We are making the offer pursuant to a merger agreement among us, Alcon
Holdings Inc. and Summit Autonomous Inc. The Summit Autonomous Inc. board of
directors has unanimously approved the merger agreement, our tender offer and
our proposed merger with Summit Autonomous Inc. The board of directors of Summit
Autonomous Inc. has determined that the offer and the merger are fair to, and in
the best interests of, the stockholders of Summit Autonomous Inc. and
unanimously recommends that stockholders accept the offer and tender their
shares. See the "Introduction" to this offer to purchase.
- WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE SHARES ARE NOT
TENDERED IN THE OFFER?
If we accept for payment and pay for at least two-thirds of the outstanding
shares on a fully diluted basis of Summit Autonomous Inc., we will be merged
with Summit Autonomous Inc. If that merger takes place, Alcon Holdings Inc. will
own all of the shares of Summit Autonomous Inc., and all other stockholders of
Summit Autonomous Inc. will receive $19.00 per share in cash (or any higher
price per share that is paid in the offer).
There are no appraisal rights available in connection with the offer.
However, if the merger takes place, stockholders who have not sold their shares
in the offer will have appraisal rights under Massachusetts law. See
Section 12--"Purpose of the Offer; the Merger Agreement; Plans for the Company--
Appraisal Rights"--of this offer to purchase.
- IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
If the merger takes place, stockholders who do not tender in the offer will
receive the same amount of cash per share that they would have received had they
tendered their shares in the offer, subject to their right to pursue appraisal
under Massachusetts law. Therefore, if the merger takes place and you do not
perfect your appraisal rights, the only difference to you between tendering your
shares and not tendering your shares is that you will be paid earlier if you
tender your shares. However, if the merger does not take place, the number of
stockholders and of shares of Summit Autonomous Inc. that are still in the hands
of the public may be so small that there may no longer be an active public
trading market (or, possibly, any public trading market) for the shares. Also,
the shares may no longer be eligible to be traded on the Nasdaq National Market
or any securities exchange, and Summit Autonomous Inc. may cease making filings
with the SEC or otherwise cease being required to comply with the SEC's rules
relating to publicly held companies. See Section 7--"Effect of the Offer on the
Market for the Shares; Nasdaq Listing; Exchange Act Registration; Margin
Regulations"--and Section 12--"Purpose of the Offer; the Merger Agreement; Plans
for the Company"--of this offer to purchase.
5
- WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On May 25, 2000, the last trading day before Summit Autonomous Inc. and
Alcon Holdings Inc. announced that they had signed the merger agreement, the
last sale price of the shares reported on the Nasdaq National Market was
$12 11/16 per share. On Friday, June 2, 2000, the last trading day before we
commenced our tender offer, the last sale price of the shares was $18 9/16 per
share. We advise you to obtain a recent quotation for shares of Summit
Autonomous Inc. in deciding whether to tender your shares. See
Section 6--"Price Range of the Shares; Dividends"--of this offer to purchase.
- TO WHOM CAN I TALK IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call ChaseMellon Shareholder Services, L.L.C. at (000) 000-0000
(toll free) or Xxxxxxx, Xxxxx & Co. at (000) 000-0000 (call collect),
ChaseMellon Shareholder Services, L.L.C. is acting as the information agent and
Xxxxxxx, Xxxxx & Co. is acting as the dealer manager for our tender offer. See
the back cover of this offer to purchase.
6
To the Holders of Common Stock of SUMMIT AUTONOMOUS INC.
INTRODUCTION
ALCON ACQUISITION CORP., a Massachusetts corporation (the "PURCHASER") and a
wholly owned subsidiary of ALCON HOLDINGS INC., a Delaware corporation
("PARENT"), hereby offers to purchase all the outstanding shares of Common
Stock, par value $0.01 per share (the "SHARES"), of SUMMIT AUTONOMOUS INC.
(formerly known as Summit Technology, Inc.), a Massachusetts corporation (the
"COMPANY"), together with the associated rights (the "RIGHTS"), to purchase
Series A Preferred Stock, par value $0.01 per share, issued pursuant to the
Rights Agreement dated as of March 28, 2000 (as amended from time to time, the
"RIGHTS AGREEMENT"), between the Company and Fleet National Bank (the "RIGHTS
AGENT"), at a price of $19.00 per Share, net to the seller in cash, without
interest thereon, 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"). Unless the context otherwise requires, all references to the Shares
shall be deemed to include the associated Rights, and all references to the
Rights include the benefits that may inure to holders of the Rights pursuant to
the Rights Agreement.
Tendering stockholders whose shares are registered in their own names and
who tender directly to the Depositary (as defined below) 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. Stockholders who hold their Shares through banks or brokers should
check with such institutions as to whether they charge any service fees. The
Purchaser will pay all fees and expenses of Xxxxxxx, Xxxxx & Co., which is
acting as Dealer Manager (the "DEALER MANAGER"), ChaseMellon Shareholder
Services, L.L.C., which is acting as the Depositary (the "DEPOSITARY"), and
ChaseMellon Shareholder Services, L.L.C., which is acting as the Information
Agent (the "INFORMATION AGENT"), incurred in connection with the Offer. See
Section 16.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of May 26, 2000 (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 (or, at Parent's option, the Company will be merged with
and into the Purchaser), with the surviving entity becoming a wholly owned
subsidiary of Parent (the "MERGER"). In the Merger each outstanding Share (other
than Shares owned by Parent, the Purchaser or the Company or any subsidiary of
Parent or the Company or by stockholders, if any, who are entitled to and
properly exercise appraisal rights under Massachusetts law) will be converted
into the right to receive the price per Share paid pursuant to the Offer in
cash, without interest thereon.
The Merger Agreement is more fully described in Section 12.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT; HAS UNANIMOUSLY 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 UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT
THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER. THE FACTORS CONSIDERED
BY THE BOARD OF DIRECTORS OF THE COMPANY IN ARRIVING AT ITS DECISION TO APPROVE
THE MERGER AGREEMENT, THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT AND TO RECOMMEND THAT STOCKHOLDERS OF THE
COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER ARE
DESCRIBED IN THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON
SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"), WHICH HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION (THE "COMMISSION") AND IS BEING MAILED TO STOCKHOLDERS
OF THE COMPANY CONCURRENTLY HEREWITH.
7
CHASE H&Q, A DIVISION OF CHASE SECURITIES INC., HAS ACTED AS THE COMPANY'S
FINANCIAL ADVISOR IN CONNECTION WITH THE OFFER AND THE MERGER. THE OPINION OF
CHASE SECURITIES INC., DATED MAY 26, 2000, TO THE BOARD OF DIRECTORS OF THE
COMPANY TO THE EFFECT THAT, AS OF SUCH DATE, THE CONSIDERATION TO BE RECEIVED BY
THE HOLDERS OF SHARES IN THE OFFER AND THE MERGER IS FAIR TO SUCH HOLDERS FROM A
FINANCIAL POINT OF VIEW IS SET FORTH IN FULL AS AN ANNEX TO THE SCHEDULE 14D-9.
STOCKHOLDERS ARE URGED TO, AND SHOULD, READ THE SCHEDULE 14D-9 AND SUCH OPINION
CAREFULLY IN THEIR ENTIRETY.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1 HEREOF) THAT NUMBER OF SHARES WHICH, TOGETHER WITH THAT NUMBER OF
SHARES OWNED BY THE PURCHASER, PARENT AND PARENT'S OTHER SUBSIDIARIES, WOULD
REPRESENT AT LEAST TWO-THIRDS OF THE FULLY DILUTED SHARES (AS DEFINED IN
SECTION 14 HEREOF) ON THE DATE OF PURCHASE (THE "MINIMUM CONDITION") AND
(B) ANY WAITING PERIOD UNDER THE XXXX-XXXXX-XXXXXX ANTITRUST IMPROVEMENTS ACT OF
1976, AS AMENDED (THE "HSR ACT") APPLICABLE TO THE PURCHASE OF SHARES PURSUANT
TO THE OFFER OR TO THE MERGER HAVING EXPIRED OR BEEN TERMINATED.
Consummation of the Merger is subject to a number of conditions, including
approval by the stockholders of the Company, if such approval is required under
applicable law, and Shares having been purchased pursuant to the Offer. In the
event the Purchaser acquires 90% or more of the outstanding Shares pursuant to
the Offer or otherwise, the Purchaser will be able to merge the Company with and
into the Purchaser pursuant to the "short-form" merger provisions of the
Massachusetts Business Corporation Law (the "BCL"), without prior notice to, or
any action by, any other stockholder of the Company. See Section 12.
The Company has informed the Purchaser that, as of May 25, 2000, there were:
46,892,798 Shares issued and outstanding and 4,022,799 Shares reserved for
issuance upon the exercise of outstanding options, warrants or other rights to
purchase Shares from the Company, representing 50,915,597 Fully Diluted Shares.
Based upon the foregoing, the Minimum Condition will be satisfied if at least
33,943,732 Shares are validly tendered and not withdrawn prior to the Expiration
Date. The actual number of Shares required to be tendered to satisfy the Minimum
Condition will depend upon the actual number of Fully Diluted Shares on the date
that the Purchaser accepts Shares for payment pursuant to the Offer. 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. See
Section 12.
Certain U.S. federal income tax consequences of the sale of Shares pursuant
to the Offer and the conversion of Shares pursuant to the Merger are described
in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND YOU SHOULD READ THEM CAREFULLY AND IN THEIR ENTIRETY
BEFORE YOU MAKE ANY DECISION WITH RESPECT TO THE OFFER.
8
THE TENDER OFFER
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 Friday,
June 30, 2000, unless and until the Purchaser shall have extended the period of
time during which the Offer is open in accordance with the terms of Merger
Agreement, in which event the term "EXPIRATION DATE" shall mean the latest time
and date on which the Offer, as so extended by the Purchaser, will expire.
The Purchaser may, without the consent of the Company, and expressly
reserves the right (but shall not be obligated), to extend the Offer, 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, (a) for one
or more periods of time that the Purchaser determines, if at the Expiration Date
any of the conditions to the Purchaser's obligation to purchase Shares are not
satisfied or waived, or in increments not to exceed five business days if all
conditions other than the Minimum Condition are satisfied; (b) for any period
required by any rule, regulation, interpretation or position of the Commission
or the staff thereof applicable to the Offer; or (c) for up to ten business days
in the aggregate beyond the latest expiration date that would otherwise be
permitted under (a) or (b), if at the scheduled or any extended expiration date
of the Offer less than 90% of the Fully Diluted Shares (as defined in
Section 14 hereof) have been validly tendered and not withdrawn in the Offer.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR TENDERED
SHARES, REGARDLESS OF ANY EXTENSION OF OR AMENDMENT TO THE OFFER OR ANY DELAY IN
PAYING FOR SUCH SHARES.
The Purchaser expressly reserves the right (but shall not be obligated), at
any time and from time to time, to waive any condition to the Offer or modify
the terms of the Offer, by giving oral or written notice of such waiver or
modification to the Depositary, except that, without the consent of the Company,
the Purchaser shall not (i) reduce the number of Shares subject to the Offer,
(ii) reduce the price per Share to be paid pursuant to the Offer, (iii) waive or
change the Minimum Condition, (iv) modify in any manner adverse to the holders
of Shares or add to the conditions of the Offer, (v) except as provided above,
extend the Offer or (vi) change the form of consideration payable in the Offer.
In the event that the Minimum Condition has not been satisfied or waived at
the scheduled expiration date of the Offer, at the request of the Company, the
Purchaser shall extend the expiration date of the Offer in such increments as
the Purchaser may determine until the earliest to occur of (a) the satisfaction
or waiver of such condition, (b) Parent reasonably determines that such
condition to the Offer is not capable of being satisfied on or prior to the
Outside Date, (c) the termination of the Merger Agreement in accordance with its
terms and (d) the Outside Date. The term "Outside Date" means November 26, 2000.
If by 12:00 midnight, New York City time, on Friday, June 30, 2000 (or any
date or time then set as the Expiration Date), any of or all the conditions to
the Offer have not been satisfied or waived, the Purchaser, subject to the terms
of the Merger Agreement and the applicable rules and regulations of the
Commission, reserves the right (but shall not be obligated) (a) to terminate the
Offer and not accept for payment or pay for any Shares and return all tendered
Shares to tendering stockholders, (b) except as set forth above with respect to
the Minimum Condition, to waive all the unsatisfied conditions and accept for
payment and pay for all Shares validly tendered prior to the Expiration Date and
not theretofore validly withdrawn, (c) as set forth above, to 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 (d) except as set forth above, to
amend the Offer.
Any extension, waiver, amendment or termination will be followed as promptly
as practicable by public announcement thereof. An announcement in the case of an
extension will be made no later than
9
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. Without limiting the manner in which Purchaser may
choose to make any public announcement, subject to applicable law (including
Rules 14d-4(d) and 14d-6(c) under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), which require that material changes be promptly
disseminated to holders of Shares), the Purchaser will have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a release to the PR Newswire. As used in this Offer to Purchase,
"BUSINESS DAY" has the meaning set forth in Rule 14d-1 under the Exchange Act.
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,
the Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(d), 14d-6(c) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of such offer or information concerning
such offer, other than a change in price or a change in the percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the changed terms or information. With
respect to a change in price or 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.
Pursuant to Rule 14d-11 under the Exchange Act, although the Purchaser does
not currently intend to do so, the Purchaser may, subject to certain conditions,
elect to provide a subsequent offering period of from three business days to 20
business days in length following the expiration of the Offer on the Expiration
Date and acceptance for payment of the Shares tendered in the Offer (a
"SUBSEQUENT OFFERING PERIOD"). A Subsequent Offering Period would be an
additional period of time, following the expiration of the Offer and the
purchase of Shares in the Offer, during which stockholders may tender Shares not
tendered in the Offer.
During a Subsequent Offering Period, tendering stockholders will not have
withdrawal rights and the Purchaser will promptly purchase and pay for any
Shares tendered at the same price paid in the Offer. Rule 14d-11 provides that
the Purchaser may provide a Subsequent Offering Period so long as, among other
things, (i) the initial 20-business day period of the Offer has expired,
(ii) the Purchaser offers the same form and amount of consideration for Shares
in the Subsequent Offering Period as in the initial Offer, (iii) the Purchaser
immediately accepts and promptly pays for all securities tendered during the
Offer prior to its expiration, (iv) the Purchaser announces the results of the
Offer, including the approximate number and percentage of Shares deposited in
the Offer, no later than 9:00 a.m., New York City time, on the next business day
after the Expiration Date and immediately begins the Subsequent Offering Period
and (v) the Purchaser immediately accepts and promptly pays for Shares as they
are tendered during the Subsequent Offering Period. The Purchaser will be able
to include a Subsequent Offering Period, if it satisfies the conditions above,
after Friday, June 30, 2000. In a public release, the Commission has expressed
the view that the inclusion of a Subsequent Offering Period would constitute a
material change to the terms of the Offer requiring the Purchaser to disseminate
new information to stockholders in a manner reasonably calculated to inform them
of such change sufficiently in advance of the Expiration Date (generally five
business days). In the event the Purchaser elects to include a Subsequent
Offering Period, it will notify stockholders of the Company consistent with the
requirements of the Commission.
THE PURCHASER DOES NOT CURRENTLY INTEND TO INCLUDE A SUBSEQUENT OFFERING
PERIOD IN THE OFFER, ALTHOUGH IT RESERVES THE RIGHT TO DO SO IN ITS SOLE
DISCRETION. PURSUANT TO RULE 14D-7 UNDER THE EXCHANGE ACT, NO WITHDRAWAL RIGHTS
APPLY TO SHARES TENDERED DURING A SUBSEQUENT OFFERING PERIOD AND NO WITHDRAWAL
RIGHTS APPLY DURING THE SUBSEQUENT OFFERING PERIOD WITH RESPECT TO SHARES
TENDERED IN THE OFFER AND ACCEPTED FOR PAYMENT. THE SAME CONSIDERATION WILL BE
PAID TO STOCKHOLDERS TENDERING SHARES IN THE OFFER OR IN A SUBSEQUENT OFFERING
PERIOD, IF ONE IS INCLUDED.
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 Shares. This Offer to Purchase,
10
the related Letter of Transmittal and other relevant materials will be mailed to
record holders of Shares, and will be 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.
2. PROCEDURES FOR TENDERING SHARES
VALID TENDER. For a stockholder validly to tender Shares pursuant to the
Offer, (a) the certificates for tendered Shares, together with a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, any
required signature guarantees and any other required documents, must, prior to
the Expiration Date, be received by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase; (b) in the case of a transfer
effected pursuant to the book-entry transfer procedures described under
"Book-Entry Transfer", either a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, and any required signature guarantees, or
an Agent's Message (as defined below), and any other required documents, must be
received by the Depositary at one of such addresses, such Shares must be
delivered pursuant to the book-entry transfer procedures described below and a
Book-Entry Confirmation (as defined below) must be received by the Depositary,
in each case prior to the Expiration Date; or (c) the tendering stockholder
must, prior to the Expiration Date, comply with the guaranteed delivery
procedures described below under "Guaranteed Delivery".
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.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY
(AS DEFINED BELOW), 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 WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company (the "BOOK-ENTRY TRANSFER
FACILITY") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant of the
Book-Entry Transfer Facility's system may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with the 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 the
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message, and any other required documents, must be, in any case,
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 for a valid tender of
Shares by book-entry. The confirmation of a book-entry transfer of Shares into
the Depositary's account at the Book-Entry Transfer Facility as described above
is referred to herein as a "BOOK-ENTRY CONFIRMATION". DELIVERY OF DOCUMENTS TO
THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "AGENT'S MESSAGE" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
11
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal if (a) the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section 2, includes any participant
in the Book-Entry Transfer Facility's system whose name appears on a security
position listing as the owner of the Shares) of 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 (b) such Shares are tendered for the account of a
financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (such
participant, an "ELIGIBLE INSTITUTION"). In all other cases, all signatures on
the Letter 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 returned 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 Instructions 1 and 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 book-entry transfer procedures 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:
(a) such tender is 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, is 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; and
(c) Either (i) the certificates for tendered Shares together with a
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, and any required signature guarantees, and any other required
documents are received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase within three trading days after
the date of execution of such Notice of Guaranteed Delivery or (ii) in the
case of a book-entry transfer effected pursuant to the book-entry transfer
procedures described above under "Book-Entry Transfer", either a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
and any required signature guarantees, or an Agent's Message, and any other
required documents, are received by the Depositary at one of such addresses,
such Shares are delivered pursuant to the book-entry transfer procedures
above and a Book-Entry Confirmation is received by the Depositary, in each
case within three 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 (the "Nasdaq National Market") operated by the Nasdaq Stock
Market, Inc. ("Nasdaq"), a subsidiary of the National Association of
Securities Dealers, Inc. 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.
PREFERRED STOCK PURCHASE RIGHTS. Holders of Shares will be required to
tender one Right for each Share tendered to effect a valid tender of such Share.
Unless and until the Distribution Date (as defined in the Rights Agreement)
occurs, the Rights are represented by and transferred with the Shares.
Accordingly, if the Distribution Date does not occur prior to the Expiration
Date of the Offer, a tender of
12
Shares will constitute a tender of the associated Rights. If, however, pursuant
to the Rights Agreement or otherwise, a Distribution Date does occur,
certificates representing a number of Rights equal to the number of Shares being
tendered must be delivered to the Depositary in order for such Shares to be
validly tendered. If a Distribution Date has occurred, a tender of Shares
without Rights constitutes an agreement by the tendering shareholder to deliver
certificates representing a number of Rights equal to the number of Shares
tendered pursuant to the Offer to the Depositary within three trading days after
the date such certificates are distributed. The Purchaser reserves the right to
require that it receive such certificates prior to accepting Shares for payment.
Payment for Shares tendered and purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of, among other things, such
certificates, if such certificates have been distributed to holders of Shares.
The Purchaser will not pay additional consideration for the Rights tendered
pursuant to the Offer. The Rights Agreement has been amended as of May 26, 2000,
to exempt from the provisions of the Rights Agreement the Merger Agreement, the
acquisition of Shares by the Purchaser pursuant to the Offer and the other
transactions contemplated by the Merger Agreement.
OTHER REQUIREMENTS. Notwithstanding any 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 (a) certificates for (or a timely
Book-Entry Confirmation with respect to) such Shares, (b) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message in lieu of the Letter of Transmittal) and (c) 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 with respect to Shares are actually received
by the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID BY THE PURCHASER
ON THE PURCHASE PRICE OF THE SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR
ANY DELAY IN MAKING SUCH PAYMENT.
APPOINTMENT. By executing a Letter of Transmittal (or facsimile thereof)
(or, in the case of a book-entry transfer, by delivery of an Agent's Message, in
lieu of a Letter of Transmittal), a tendering stockholder will irrevocably
appoint designees of the Purchaser as such stockholder's attorneys-in-fact and
proxies in 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 May 26, 2000.
All such proxies will 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 the effectiveness of such appointment, all prior powers of
attorney, proxies and consents 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, proxies, consents or revocations may be
given (and, if given, will not be effective). The designees of the Purchaser
will thereby be empowered to exercise all voting and other rights with respect
to such Shares and other securities or rights in respect of any annual, special
or adjourned meeting of the Company's stockholders, actions by written consent
in lieu of any such meeting 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,
consent and other rights with respect to such Shares and other securities or
rights, including voting at any meeting of stockholders.
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, be
unlawful. The Purchaser also reserves the absolute right to
13
waive any defect or irregularity in the tender of any Shares of any particular
stockholder whether or not similar defects or irregularities are waived in the
case of other stockholders. 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 Company, the Depositary, the
Information Agent, the Dealer Manager 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 and any other related documents
thereto) will be final and binding.
BACKUP WITHHOLDING. In order to avoid "backup withholding" of U.S. federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must, unless an exemption applies, 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. If a
stockholder does not provide such stockholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service (the "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 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). Certain stockholders
(including, among others, all corporations, individual retirement accounts and
certain foreign individuals and entities) are not subject to backup withholding.
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 Friday, August 4, 2000.
For a withdrawal to be effective, a written 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 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, any and all
signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution. If Shares have been tendered pursuant to the book-entry transfer
procedures described in Section 2, any notice of withdrawal must also specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the 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 at
any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of any
notice 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 Company, the Depositary, the Information Agent, the Dealer Manager or any
14
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.
In the event the Purchaser provides a Subsequent Offering Period following
the Offer, no withdrawal rights will apply to Shares tendered during such
Subsequent Offering Period or to Shares tendered in the Offer and accepted for
payment.
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. The Purchaser,
subject to the Merger Agreement, 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 a bidder's obligation to pay
for or return tendered securities promptly after the termination or withdrawal
of such bidder's 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 (a) the certificates
for such Shares, together with a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, and any required signature guarantees or
(b) in the case of a transfer effected pursuant to the book-entry transfer
procedures described in Section 2, a Book-Entry Confirmation and either a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed, and
any required signature guarantees, or an Agent's Message, and any other required
documents. Accordingly, tendering stockholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations with
respect to Shares are actually received by the Depositary.
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 validly tendered to the Purchaser and not
properly 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. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as an agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering stockholders whose Shares have been
accepted for payment. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, REGARDLESS OF ANY EXTENSION OF OR AMENDMENT
TO THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES.
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
(relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer) and the
terms of the Merger Agreement (requiring that the Purchaser pay for Shares
accepted for payment as soon as practicable after the Expiration Date)), 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 do so as described in Section 3.
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer for any reason, the certificates for such Shares
will be returned (and, if certificates are submitted for more Shares than are
tendered, new certificates for the Shares not tendered will be sent) in each
case without expense to the tendering stockholder (or, in the case of Shares
delivered by book-entry transfer
15
of such Shares into the Depositary's account at the Book-Entry Transfer Facility
pursuant to the book-entry transfer procedures described in Section 2, such
Shares will be credited to an account maintained at the 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 U.S. FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for U.S. federal income tax purposes under the Internal Revenue Code
of 1986, as amended (the "CODE") and may also be a taxable transaction under
applicable state, local or foreign income tax laws.
Generally, for U.S. federal income tax purposes, a tendering stockholder
will recognize gain or loss equal to the difference between the amount of cash
received by the stockholder pursuant to the Offer or Merger and the aggregate
adjusted tax basis in the Shares tendered by the stockholder and purchased
pursuant to the Offer or converted into cash in the Merger, as the case may be.
Gain or loss will be calculated separately for each block of Shares tendered and
purchased pursuant to the Offer or converted into cash in the Merger, as the
case may be. If tendered Shares are held by a tendering stockholder as capital
assets, gain or loss recognized by such stockholder will be capital gain or
loss, which will be long-term capital gain or loss if such stockholder's holding
period for the Shares exceeds one year. In the case of a tendering noncorporate
stockholder, long--term capital gains will be eligible for a maximum U.S.
federal income tax rate of 20%. In addition, the ability to use capital losses
to offset ordinary income is limited.
A stockholder (other than certain exempt stockholders including, among
others, all corporations, individual retirement accounts and certain foreign
individuals and entities) 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) and
certifies as to no loss of exemption from backup withholding and otherwise
complies with the applicable requirements of the backup withholding rules. A
stockholder that does not furnish a required TIN or that does not otherwise
establish a basis for an exemption from backup withholding may be subject to a
penalty imposed by the IRS. See "Backup Withholding" under Section 2. 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 U.S. 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 by filing a U.S. federal income tax return.
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 individual circumstances, such as holding Shares as
a hedge or as part of a straddle or a hedging, constructive sale, integrated or
other risk-reduction transaction. STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN
TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING THE
16
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 listed on the Nasdaq National Market under the symbol "BEAM".
The following table sets forth, for each of the periods indicated, the high and
low sales prices per Share.
HIGH LOW
---------- ----------
Year Ended December 31, 1998:
First Quarter..................................... $ 7 1/4 $ 4 9/16
Second Quarter.................................... 7 1/2 4 1/2
Third Quarter..................................... 6 7/8 3 1/16
Fourth Quarter.................................... 6 1/8 3
Year Ended December 31, 1999:
First Quarter..................................... $11 9/16 $ 4 5/16
Second Quarter.................................... 23 7/16 10 7/16
Third Quarter..................................... 29 3/8 14 1/4
Fourth Quarter.................................... 21 5/8 10 1/4
Year Ending December 31, 2000:
First Quarter..................................... $14 11/16 $ 7
Second Quarter (through June 2, 2000)............. 18 5/8 7 1/8
On May 25, 2000, the last full trading day before the public announcement of
the execution of the Merger Agreement, the last reported sales price on the
Nasdaq National Market of the Shares was $12 11/16 per Share. On June 2, 2000,
the last full trading day before commencement of the Offer, the last reported
sales price on the Nasdaq National Market of the Shares was $18 9/16 per Share.
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
The Purchaser has been advised by the Company that the Company has never
declared or paid any cash dividends on the Shares. Although stock dividends have
been paid on the Shares in the past, the Company has advised the Purchaser that,
other than the Rights issued pursuant to the Rights Agreement, the Company has
not declared or paid any stock or other non-cash dividends on the Shares in the
last two years.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; SHARE QUOTATION; EXCHANGE
ACT REGISTRATION; MARGIN REGULATIONS
MARKET FOR THE SHARES. 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.
SHARE QUOTATION. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the requirements for continued
designation for the Nasdaq National Market. To maintain such designation, a
security must substantially meet one of two maintenance standards. The first
maintenance standard requires that there be 750,000 publicly held shares, the
publicly held shares have a market value of $5 million, the issuer have net
tangible assets of at least $4 million, there be 400 shareholders of round lots,
the minimum bid price per share be $1 and there be at least two registered and
active market makers. The second maintenance standard requires that the issuer
have either a market capitalization of $50 million or total assets and total
revenue of $50 million each for the most recently completed fiscal year or two
of the last three most recently completed fiscal years, there be 1,100,000
shares publicly held, the publicly held shares have a market value of
$15 million, the minimum bid price per share be $5, there be 400 shareholders of
round lots and there be at least four registered and active market makers.
17
If these standards for continued designation for the Nasdaq National Market
are not met, the Shares might nevertheless continue to be included in the Nasdaq
SmallCap Market. Continued inclusion in the Nasdaq SmallCap Market, however,
would require that there be 300 round-lot holders, there be at least 500,000
publicly held shares, the publicly held shares have a market value of at least
$1 million, there be two registered and active market makers, of which one may
be entering stabilizing bids, and the issuer have either net tangible assets of
at least $2 million, market capitalization of at least $35 million or net income
of $500,000 in the most recently completed fiscal year or in two of the last
three most recently completed fiscal years. 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.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Such registration 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 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 and the requirement of furnishing a proxy or
information statement pursuant to Section 14(a) or 14(c) of the Exchange Act in
connection with stockholders' meetings and the related requirement of furnishing
an annual report to stockholders. Furthermore, the ability of "affiliates" of
the Company and persons holding "restricted securities" of the Company to
dispose of such securities pursuant to Rule 144 or 144A promulgated under the
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.
MARGIN REGULATIONS. 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.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Massachusetts corporation with its principal offices at 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, telephone number (000) 000-0000.
According to the Company's 1999 Annual Report, the Company is engaged in the
manufacture and supply of excimer laser systems and related products used to
perform procedures that correct common refractive vision disorders such as
nearsightedness, farsightedness and astigmatism.
Set forth below is certain selected financial information with respect to
the Company and its subsidiaries excerpted from the information contained in the
Company's annual report on Form 10-K for the year ended December 31, 1999 and
quarterly report on Form 10-Q for the quarter ended March 31, 2000. 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, 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".
18
SUMMIT AUTONOMOUS INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(in thousands, except per share amounts)
THREE MONTHS ENDED
MARCH 31
YEAR ENDED AS OF DECEMBER 31 (UNAUDITED)
--------------------------------- ---------------------
1997 1998 1999 1999 2000
--------- --------- --------- --------- ---------
CONSOLIDATED STATEMENT OF OPERATIONS:
Total revenues......................... $ 79,650 $ 91,641 $111,099 $ 13,520 $ 20,718
Income (loss) from continuing
operations before provision (benefit)
for income taxes..................... 965 41,751 (22,650) 1,513 (13,609)
Provision (benefit) for income taxes... 137 5,021 375 (291) (437)
Net income (loss)...................... 21,398 27,570 (23,025) 2,386 (12,346)
Net income (loss) per share............ $0.68 $0.88 $(0.57) $0.08 $(0.26)
CONSOLIDATED BALANCE SHEET DATA:
Total current assets................... $100,741 $123,550 $117,497 $119,140
Total assets........................... 144,925 270,667 262,388 267,260
Total current liabilities.............. 21,788 23,720 18,799 32,633
Total liabilities...................... 25,591 34,499 26,220 41,556
Total stockholders' equity............. 119,334 236,168 236,168 225,704
CERTAIN COMPANY PROJECTIONS. During the course of discussions between
representatives of Parent and the Company, the Company provided Parent or its
representatives with certain non-public business and financial information about
the Company. This information included the following projections of total
revenues, net income and earnings per share for the Company for the years ended
December 31, 2000 through 2005:
2000 2001 2002 2003 2004 2005
--------- --------- --------- --------- --------- ---------
(in thousands, except per share amounts)
Total revenues..................... $108,060 $146,468 $237,280 $295,093 $366,180 $457,680
Operating income................... 2,804 29,848 96,325 136,861 191,030 263,247
Net income......................... 3,553 20,303 61,438 87,852 123,213 170,425
Earnings per share................. $0.08 $0.44 $1.30 $1.83 $2.55 $3.52
The Company has advised the Purchaser and Parent that it 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 this 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 projections do not purport to present operations in accordance
with generally accepted accounting principles, and the Company's independent
auditors have not examined or compiled the projections and accordingly assume no
responsibility for them. The Company has advised the Purchaser and Parent that
its internal financial forecasts (upon which the projections provided to Parent
and the Purchaser 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 interpretations and periodic
revision based on actual experience and business developments. The projections
also reflect numerous assumptions made by management of the Company, including
assumptions with respect to the market for the Company's products and services,
general business, economic, market and financial conditions and other matters,
including
19
effective tax rates consistent with historical levels for the Company and
interest rates and the anticipated amount of borrowings by the Company, all of
which are difficult to predict, many of which are beyond the Company's control,
and none of which were subject to approval by Parent or the Purchaser.
Accordingly, there can be no assurance that the assumptions made in preparing
the projections will prove accurate. It is expected that there will be
differences between actual and projected results, and actual results may be
materially greater or less than those contained in the projections. The
inclusion of the projections herein should not be regarded as an indication that
any of Parent, the Purchaser, the Company or their respective affiliates or
representatives considered or consider the projections to be a reliable
prediction of future events, and the projections should not be relied upon as
such. None of Parent, the Purchaser, the Company or any of their respective
affiliates or representatives has made or makes any representation to any person
regarding the ultimate performance of the Company compared to the information
contained in the projections, and none of them intends to update or otherwise
revise the projections to reflect circumstances existing after the date when
made or to reflect the occurrence of future events even in the event that any or
all of the assumptions underlying the projections are shown to be in error.
AVAILABLE INFORMATION. The Company is subject to the informational
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. Certain 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 the Company's 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 at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, XX 00000, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, NY 10048 and Northwestern Atrium
Center, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000. Copies of such
information should be obtainable, by mail, upon payment of the Commission's
customary charges, by writing to the Commission's principal office at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, XX 00000. The Commission also maintains a Web site on
the Internet at xxxx://xxx.xxx.xxx/ that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. Such information should also be on file at the Nasdaq Stock
Market, Inc., 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
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 Parent and the Purchaser 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 PARENT AND THE PURCHASER
The Purchaser, a Massachusetts corporation that is a wholly owned subsidiary
of Parent, was organized to acquire the Company and has not conducted any
unrelated activities since its organization. All outstanding shares of capital
stock of the Purchaser are owned by Parent.
Parent is a Delaware corporation and is a holding company. Parent's
principal operating subsidiary is Alcon Laboratories, Inc., which is engaged in
the business of researching, developing, manufacturing and marketing ophthalmic
products including surgical instruments and accessory products, intraocular
lenses, prescription drugs and contact lens care solutions. The principal office
of Parent and the Purchaser is located at 0000 Xxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxx
00000-0000, telephone number (000) 000-0000. Parent is an indirect wholly owned
subsidiary of Nestle S.A., a Swiss corporation ("NESTLE"). Nestle's subsidiaries
manufacture and sell food and beverage products throughout the world, engage in
research and development activities, manufacture and sell cosmetic products, and
20
develop, manufacture and sell pharmaceutical products. The address of Nestle's
principal office is Xxxxxx Xxxxxx 00, XX-0000 Xxxxx, Xxxxxxxxxxx.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history of each of the directors and
executive officers of the Purchaser, Parent and Nestle are set forth in
Schedule I hereto.
Because the only consideration in the Offer and Merger is cash and the Offer
covers all outstanding Shares, and in view of the absence of a financing
condition and financial capacity of Parent and its affiliates, the Purchaser
believes the financial condition of Parent and its affiliates is not material to
a decision by a holder of Shares whether to hold, sell or tender Shares pursuant
to the Offer.
10. SOURCE AND AMOUNT OF FUNDS
The Offer is not conditioned on any financing arrangements.
The total amount of funds required by the Purchaser to purchase all
outstanding Shares pursuant to the Offer (assuming the exercise of all
outstanding options and warrants and after deducting the proceeds of such
exercise) and to pay fees and expenses related to the Offer and the Merger is
estimated to be approximately $940 million. The Purchaser plans to obtain all
funds needed for the Offer and the Merger through capital contributions or
intercompany advances from Parent. Such funds will be made available to Parent
through intercompany advances from Nestle or an affiliate of Nestle.
11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
BACKGROUND OF THE OFFER
For the purposes of this Section references to Parent include Alcon
Laboratories, Inc., Parent's principal operating subsidiary. From time to time
during 1999, officers of Parent have discussed with officers of the Company
potential joint business arrangements, including a business combination.
On October 8, 1999, a representative of the Company's financial advisor
contacted Parent to determine if Xxxxxx was interested in acquiring the Company.
On November 5, 1999, Parent and the Company entered into a confidentiality
agreement covering nonpublic information regarding the Company to be furnished
to Parent.
From November 1999 through March 2000, there were a number of meetings and
conversations between the managements of Parent and the Company and the
financial advisors to Parent and the Company regarding a possible acquisition of
the Company. During this period representatives of Parent conducted a due
diligence investigation of the Company and discussed their analysis of the
valuation of the Company with the Company representatives.
On April 6, 2000, Xx. Xxxxxxx X. X. Xxxx, President and Chief Executive
Officer of Parent, sent a letter to Xx. Xxxxxx X. Xxxxxxxxx, Chief Executive
Officer of the Company, proposing to acquire all the outstanding Common Stock of
the Company for $15 per share in cash, which included a draft of a proposed form
of the Merger Agreement. The letter stated that the proposal was conditioned on,
among other things, Parent's completion of certain additional due diligence.
Shortly thereafter, the financial advisor to the Company informed the
financial advisor to Parent that Xxxxxx's proposed price was unacceptable and
that the Company would not review the draft of the proposed Merger Agreement.
On April 13, 2000, Xx. Xxxx sent a letter to Xx. Xxxxxxxxx expressing
disappointment in the Company's response to Xxxxxx's proposal and suggesting
that the parties meet to discuss a potential transaction between Parent and the
Company.
21
On April 14, 2000, Xx. Xxxxxxxxx sent a letter to Xx. Xxxx suggesting a
meeting in Florida to determine whether the parties could agree on a transaction
at an appropriate valuation.
On April 19, 2000, Xx. Xxxx and a representative of Parent's financial
advisor met with Xx. Xxxxxxxxx and a representative of the Company's financial
advisor in Miami, Florida, to discuss the potential market for the Company's
products and the valuation of the Company. During the meeting, Xx. Xxxxxxxxx
indicated that the Company's Board of Directors believed the Company was worth
significantly more than $15 per share.
On April 28, 2000, Xx. Xxxxxxxxx sent a letter to Xx. Xxxx providing
additional information regarding the potential market for the Company's
products.
During April 2000, representatives of Parent had several meetings with
representatives of the Company to discuss various aspects of the Company,
including the potential market for the Company's products, the Company's
financial projections, intellectual property and microkeratome technology.
On May 3, 2000, counsel for the Company provided to counsel for Parent their
initial comments on the draft of the proposed form of the Merger Agreement.
On May 9, 2000, Xx. Xxxx sent a letter to Xx. Xxxxxxxxx stating that,
following the additional due diligence by Parent, Parent was increasing its
proposed price to acquire the Company to $16.50 per share.
On May 11, 2000, Xx. Xxxxxxxxx and Xx. Xxxx had a telephone conversation in
which Xx. Xxxxxxxxx stated that the Company's Board of Directors had rejected
Xxxxxx's proposal of $16.50 per share. Xx. Xxxxxxxxx stated that the Company's
Board would not accept less than $19 per share.
From May 3 through May 24, 2000, representatives of Parent and the Company,
including their financial advisors and counsel, had a number of discussions
regarding the terms of the proposed Merger Agreement.
On May 24, 2000, Xxxxxx's financial advisor contacted the Company's
financial advisor to determine whether a price of $18.50 per share would be
acceptable. The Company's financial advisor stated that a price below $19 per
share would not be acceptable.
On May 25, 2000, Xxxxxx's financial advisor contacted the Company's
financial advisor to state that Parent would be willing to proceed with a
transaction at $19 per share. Beginning in the evening of May 25, 2000, and
continuing on May 26, 2000, representatives of Parent and the Company and their
respective counsel negotiated the final terms of the Merger Agreement.
On May 26, 2000, the Board of Directors of the Company met and approved the
proposed Merger Agreement and the parties executed the Merger Agreement. Alcon
and the Company then issued a joint press release announcing the transaction.
On June 5, 2000, in accordance with the Merger Agreement, the Purchaser
commenced the Offer.
12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; PLANS FOR THE COMPANY
PURPOSE
The purpose of the Offer is to enable Parent to acquire control of the
Company and is a first step to acquire all of the outstanding Shares. The
purpose of the Merger is to acquire all outstanding Shares not tendered and
purchased pursuant to the Offer or otherwise.
22
THE MERGER AGREEMENT
The following summary of the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement, a copy of which is filed as
Exhibit (d)(1) to the Schedule TO. You should read the Merger Agreement in its
entirety for a more complete description of the matters summarized below.
The Merger Agreement provides that, following the satisfaction or waiver of
the conditions described below under "Conditions to the Merger", the Purchaser
will be merged with and into the Company, with the Company being the surviving
corporation, or if Parent so elects, the Company will be merged with and into
the Purchaser, with the Purchaser being the surviving corporation. In either
case, each issued Share (other than Shares owned by Parent, the Purchaser or the
Company or a subsidiary of Parent, the Purchaser or the Company or by
stockholders, if any, who are entitled to and who properly exercise appraisal
rights under Massachusetts law) will be converted into the right to receive the
highest price per Share paid pursuant to the Offer in cash, without interest
thereon.
VOTE REQUIRED TO APPROVE MERGER. The BCL requires, among other things, that
the adoption of any plan of merger of the Company must be approved by the Board
of Directors of the Company and, if the "short-form" merger procedure described
below is not available, approved by the holders of two-thirds of the Company's
outstanding voting securities. The Board of Directors of the Company has
approved the Offer, the Merger and the Merger Agreement; consequently, the only
additional action of the Company that may be necessary to effect the Merger is
approval of the Merger Agreement by the Company's stockholders if such
"short-form" merger procedure is not available. If required by the BCL, the
Company will call and hold a meeting of its stockholders promptly following the
consummation of the Offer for the purposes of voting upon the approval of the
Merger Agreement. At any such meeting all Shares then owned by Parent or the
Purchaser will be voted in favor of the approval of the Merger Agreement. If the
Purchaser acquires, through the Offer or otherwise, 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 affirmative vote of any other stockholder of the
Company.
"SHORT-FORM" MERGER PROCEDURE. The BCL also provides that, if a parent
company owns at least 90% of the outstanding shares of each class of stock of a
subsidiary, the parent company may merge that subsidiary into the parent company
pursuant to the "short-form" merger procedures without prior notice to, or the
approval of, the other stockholders of the subsidiary. In order to consummate
the Merger pursuant to these provisions of the BCL, the Purchaser would have to
own at least 90% of the outstanding Shares. The Merger Agreement provides that
Parent may elect to merge the Company with and into the Purchaser rather than
merge the Purchaser with and into the Company. This provision is intended to
give the Purchaser the ability to use the "short-form" merger procedure provided
in the BCL if it acquires at least 90% of the outstanding Shares. If the
Purchaser acquires at least 90% of the outstanding Shares pursuant to the Offer
or otherwise, it intends to evaluate the feasibility of merging the Company into
the Purchaser under this procedure without prior notice to, or any action by,
any other stockholder of the Company.
CONDITIONS TO THE MERGER. The Merger Agreement provides that the respective
obligations of each party to effect the Merger are subject to the satisfaction
or waiver of certain conditions, including the following: (a) the Company's
stockholders shall have approved the Merger by an affirmative vote of the
holders of two-thirds of the outstanding shares (the "COMMON STOCK APPROVAL"),
if required; (b)(i) any requisite waiting period (and any extension thereof)
applicable to the Merger under the HSR Act shall have been terminated or shall
have expired, and (ii) any consents, approvals and filings under any other
foreign antitrust law the absence of which would prohibit the consummation of
the Merger, shall have been obtained or made; (c) no statute, rule, regulation,
executive order, decree, temporary restraining order, preliminary or permanent
injunction or other order enacted, entered, promulgated, enforced or
23
issued by any Governmental Entity (as defined below under "Termination of the
Merger Agreement"), or other legal restraint or prohibition (collectively,
"LEGAL RESTRAINTS") preventing the consummation of the Merger shall be in
effect; PROVIDED that each of the parties shall have used all reasonable efforts
to prevent the entry of any such injunction or other order and to appeal as
promptly as possible any such injunction or other order that may be entered; and
(d) the Purchaser shall have accepted Shares for payment pursuant to the Offer;
PROVIDED that a party may not assert this condition if the failure of the
Purchaser to accept Shares for payment pursuant to the Offer shall have
constituted or resulted from a material breach of the Offer or the Merger
Agreement by such party.
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
at any time prior to the effective time of the Merger (the "EFFECTIVE TIME"),
whether before or after adoption of the Merger Agreement by the stockholders of
the Company:
(a) by mutual written consent of Parent, the Purchaser and the Company;
(b) by either Parent or the Company:
(i) if the Offer is not consummated on or before November 26, 2000;
PROVIDED that this right to terminate the Offer is not available to any
party whose wilful and material breach of the Merger Agreement has
resulted in the failure to consummate the Offer;
(ii) if any Federal, state, local or foreign government or any court
of competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a
"GOVERNMENTAL ENTITY"), shall have issued an order, decree or ruling or
taken any other action permanently enjoining, restraining or otherwise
prohibiting the acceptance for payment of, or payment for, the Shares
pursuant to the Offer or the Merger and such order, decree, ruling or
other action shall have become final and nonappealable;
(iii) if as the result of the failure of any of the conditions set
forth in Section 14 hereof, the Offer shall have terminated or expired in
accordance with its terms without the Purchaser having accepted Shares
for payment pursuant to the Offer; PROVIDED that this right to terminate
the Merger Agreement is not available to any party whose failure to
fulfill any of its obligations under the Merger Agreement results in the
failure of any such condition or if the failure of such condition results
from facts or circumstances that constitute a wilful breach of any
representation or warranty under the Merger Agreement by such party; or
(iv) if, upon a vote at a duly held meeting to obtain the Company
Stockholder Approval, the Company Stockholder Approval is not obtained;
PROVIDED that Parent may not terminate the Merger Agreement pursuant to
this termination provision if the Purchaser, Parent or any other
subsidiary of Parent shall not have voted its Shares in favor of
obtaining the Company Stockholder Approval.
(c) by Parent, if the Company breaches or fails to perform in any
material respect any of its representations, warranties or covenants
contained in the Merger Agreement (other than a breach or failure to perform
for which Parent has the right to terminate the Merger Agreement described
in (d)(ii) below), which breach or failure to perform (i) would give rise to
the failure of a condition set forth in Section 14 hereof, and (ii) cannot
be or has not been cured within 30 days after the giving of written notice
to the Company of such breach (PROVIDED that Parent is not then in material
breach of any representation, warranty or covenant contained in the Merger
Agreement);
(d) by Parent prior to the first acceptance of Shares for payment
pursuant to the Offer (the "ACCEPTANCE DATE"):
(i) if the Board of Directors of the Company or any committee
thereof withdraws or modifies in a manner adverse to Parent or the
Purchaser, or publicly proposes to withdraw or modify in a manner adverse
to Parent or the Purchaser, its approval or recommendation of the
24
Merger Agreement, the Offer or the Merger, fails to recommend to the
Company's stockholders that they accept the Offer and give the Company
Stockholder Approval or publicly approves or recommends, or publicly
proposes to approve or recommend, any Takeover Proposal (as defined below
under "Takeover Proposals");
(ii) if the Company or any of its officers, directors, employees,
representatives or agents takes any of the actions that are prohibited by
the provisions described below under "Takeover Proposals";
(e) by the Company prior to the Acceptance Date in the circumstances
described below under "Takeover Proposals" in which such termination is
permitted, subject to compliance by the Company with the notice provisions
described below and the termination fee provisions described below; or
(f) by the Company prior to the Acceptance Date, if Parent breaches or
fails to perform in any material respect any of its representations,
warranties or covenants contained in the Merger Agreement, which breach or
failure to perform cannot be or has not been cured within 30 days after the
giving of written notice to Parent of such breach (provided that the Company
is not then in material breach of any representation, warranty or covenant
contained in the Merger Agreement).
TAKEOVER PROPOSALS. The Merger Agreement provides that the Company will
not, nor will it authorize or permit any of its subsidiaries to, nor will it
authorize or permit any director, officer or employee of, or any investment
banker, attorney or other advisor or representative of, the Company or any of
its subsidiaries to (i) directly or indirectly, solicit, initiate or encourage
the submission of any Takeover Proposal, (ii) enter into any agreement with
respect to any Takeover Proposal or (iii) directly or indirectly, participate in
any discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may reasonably be
expected to lead to, any Takeover Proposal; PROVIDED that prior to the
Acceptance Date, the Board of Directors of the Company may, to the extent
necessary to act in a manner consistent with its fiduciary obligations, as
determined in good faith by it after consultation with outside counsel, in
response to a Takeover Proposal that the Board of Directors determines, in good
faith after consultation with outside counsel and Chase Securities Inc. or
another nationally recognized independent financial advisor, is reasonably
likely to lead to a Superior Proposal (as defined below) that was unsolicited
and that did not otherwise result from a breach or a deemed breach of this
provision, and subject to compliance with the notification obligations described
below, (x) furnish information with respect to the Company to the person making
such Takeover Proposal (and its representatives) pursuant to a customary
confidentiality agreement; and (y) participate in discussions or negotiations
with the person making such Takeover Proposal (and its representatives)
regarding such Takeover Proposal.
"TAKEOVER PROPOSAL" means (i) any proposal or offer for a merger,
consolidation, dissolution, recapitalization or other business combination
involving the Company or any significant subsidiary of the Company, (ii) any
proposal for the issuance by the Company of over 20% of its equity securities as
consideration for the assets or securities of another person or (iii) any
proposal or offer to acquire in any manner, directly or indirectly, over 20% of
the equity securities or consolidated total assets of the Company, in each case
other than pursuant to the Offer, the Merger and the other transactions
contemplated by the Merger Agreement.
"SUPERIOR PROPOSAL" means any proposal made by a third party to acquire
substantially all the equity securities or assets of the Company, pursuant to a
tender or exchange offer, a merger, a consolidation, a liquidation or
dissolution, a recapitalization or a sale of all or substantially all its
assets, (i) on terms which the Board of Directors of the Company determines in
good faith to be superior from a financial point of view to the holders of
Shares to the Offer, the Merger and the other transactions contemplated by the
Merger Agreement (after consultation with the Company's financial advisor, which
shall be Chase Securities Inc. or another nationally recognized independent
financial advisor), taking into account all
25
the terms and conditions of such proposal and the Merger Agreement (including
any proposal by Parent to amend the terms of the Offer, the Merger and the
transactions contemplated by the Merger Agreement) and (ii) that is reasonably
capable of being completed, taking into account all financial, regulatory, legal
and other aspects of such proposal.
The Merger Agreement further provides that, unless the Board of Directors,
after consultation with outside counsel, determines in its good faith judgment
that it is necessary to do so to fulfill its fiduciary obligations, neither the
Board of Directors of the Company nor any committee thereof may (i) withdraw (or
modify in a manner adverse to Parent or the Purchaser) or publicly propose to
withdraw (or modify in a manner adverse to Parent or the Purchaser) the approval
or recommendation by such Board of Directors or any such committee of the Merger
Agreement, the Offer or the Merger, (ii) approve any letter of intent, agreement
in principle, acquisition agreement or similar agreement relating to any
Takeover Proposal, or (iii) approve or recommend, or publicly propose to approve
or recommend, any Takeover Proposal. Furthermore, the Company may not take the
actions set forth in clauses (ii) or (iii) of the preceding sentence unless:
(i) the Board of Directors of the Company has received a Superior Proposal,
(ii) in light of such Superior Proposal the Board of Directors of the Company
shall have determined in good faith, after consultation with outside counsel,
that it is necessary to withdraw or modify its approval or recommendation of the
Merger Agreement, the Offer or the Merger in order to act in a manner consistent
with its fiduciary duty under applicable law, (iii) the Company has notified
Parent in writing of the determinations described in clause (ii) above, (iv) at
least three business days following receipt by Parent of the notice referred to
in clause (iii) above, and taking into account any revised proposal made by
Parent since receipt of the notice referred to in clause (iii) above, such
Superior Proposal remains a Superior Proposal and the Board of Directors of the
Company has again made their determinations referred to in clause (ii) above,
(v) the Company is in compliance with the provisions related to Takeover
Proposals referenced above (other than breaches that, individually and in the
aggregate, are not material and do not prejudice Parent's rights under the
Merger Agreement), (vi) the Company has previously paid the Termination Fee
described below, (vii) the Board of Directors of the Company concurrently
approves, and the Company concurrently enters into, a definitive agreement,
providing for the implementation of such Superior Proposal and (viii) Parent is
not at such time entitled to terminate the Merger Agreement pursuant to a
Company breach or failure to perform in any material respect any of its
representations, warranties or covenants contained in the Merger Agreement (as
more fully described under paragraph (c) of "Termination of the Merger
Agreement" above).
In addition to the obligations of the Company described in the preceding
four paragraphs, the Merger Agreement provides that the Company will promptly
advise Parent orally and, within two business days, in writing of any Takeover
Proposal or of any inquiry that could reasonably be expected to lead to any
Takeover Proposal, the material terms and conditions of such Takeover Proposal
or inquiry (including any changes thereto) and the identity of the person making
any such Takeover Proposal or inquiry. The Company shall keep Parent fully
informed of the status and details (including any change to the terms thereof)
of any such Takeover Proposal or inquiry. In addition, the Company is required
to provide to Parent as soon as practicable after receipt or delivery thereof
with copies of all correspondence and other written material sent or provided to
the Company by any third party in connection with any Takeover Proposal or sent
or provided by the Company to any third party in connection with any Takeover
Proposal.
The Merger Agreement provides that the provisions described above will not
prohibit the Company from taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making any
required disclosure to the Company's stockholders if, in the good faith judgment
of the Board of Directors of the Company, after consultation with outside
counsel, failure so to disclose would be inconsistent with applicable law.
FEES AND EXPENSES; TERMINATION FEE. The Merger Agreement provides that
except as set forth below, all fees and expenses incurred in connection with the
Merger Agreement, the Offer, the Merger
26
and the other transactions contemplated by the Merger Agreement shall be paid by
the party incurring such fees or expenses, whether or not the Merger is
consummated.
The Company will pay to Parent a fee of $32.5 million (the "TERMINATION
FEE") if: (i) the Merger Agreement is terminated pursuant to the provisions
described above in clause (b)(iii) under "Termination of the Merger Agreement"
as a result of the failure of the condition set forth in paragraph (d) of
Section 14 of this Offer to Purchase; (ii) the Company terminates this Agreement
pursuant to clause (e) under "Termination of the Merger Agreement";
(iii) Parent terminates the Merger Agreement pursuant to the provisions
described above in clause (d)(i) or (d)(ii) under "Termination of the Merger
Agreement" as a result of the Company materially breaching its obligations
described under "Takeover Proposals"; (iv) after the date of the Merger
Agreement, any person makes a Takeover Proposal, (A) the Offer remains open
until the scheduled expiration date immediately following the date such Takeover
Proposal is made, (B) the Minimum Condition is not satisfied at such expiration
date, (C) the Merger Agreement is terminated pursuant to the provisions
described above in clause (b)(i) or (b)(iii) (other than as a result of the
failure of the condition set forth in paragraph (d) of Section 14 of this Offer
to Purchase) and (D) within 12 months of such termination the Company enters
into a definitive agreement to consummate, or consummates, the transactions
contemplated by the Takeover Proposal; or (v) the Merger Agreement is terminated
pursuant to clause (c) under "Termination of the Merger Agreement" as a result
of wilful breach by the Company and within 12 months of such termination the
Company enters into a definitive agreement to consummate, or consummates, the
transactions contemplated by a Takeover Proposal. Any fee due under the
provisions described above shall be paid by wire transfer of same-day funds on
the date of termination of the Merger Agreement (except that in the case of
clause (iv) or (v) above such payment shall be made on the date of execution of
such definitive agreement or, if earlier, consummation of such transactions).
If the Company becomes obligated to pay the Termination Fee pursuant to
clause (v) described above as a result of a wilful breach by the Company, Parent
may elect not to receive the Termination Fee and may instead pursue any and all
rights, claims and causes of action it may have with respect to such breach
under law. If Parent elects to receive the Termination Fee, and the Company pays
the Termination Fee as described above, the payment by the Company of such fee
will be Parent's sole remedy with respect to such breach and Parent shall waive,
to the fullest extent permitted by law, any and all rights, claims and causes of
action (other than claims of, or causes of action arising from, fraud) it may
have against the Company with respect to such breach.
CONDUCT OF BUSINESS. The Merger Agreement provides that during the period
from the date of the Merger Agreement to the earliest to occur of the date of
the termination of the Merger Agreement, the date directors designated by Parent
or Purchaser have been elected to and shall constitute a majority of the Board
of Directors of the Company (the "CONTROL DATE"), and the Effective Time, except
(i) as consented to in writing by Parent, (ii) as expressly permitted by the
Merger Agreement or (iii) as disclosed on the Company's disclosure schedule to
the Merger Agreement, the Company shall, and shall cause its subsidiaries to,
carry on their respective businesses taken as a whole in the usual, regular and
ordinary course in substantially the same manner as previously conducted and use
all reasonable efforts to preserve intact its current business organization,
keep available the services of its current officers and employees and keep their
relationships with customers, suppliers, licensors, licensees, distributors and
others having business dealings with them to the end that its goodwill and
ongoing business shall be unimpaired in all material respects at the Effective
Time. Without limiting the generality of the foregoing, but subject to clauses
(i), (ii) and (iii) above, from the date of the Merger Agreement to the earliest
to occur of the date of termination of the Merger Agreement, the Control Date or
the Effective Time the Company shall not, and shall not permit any of its
subsidiaries to:
(i) (A) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock except for
dividends and distributions by a direct or indirect wholly owned
subsidiary of the Company to its parent, (B) split, combine or reclassify
any of its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or
27
in substitution for shares of its capital stock, or (C) purchase, redeem
or otherwise acquire any shares of capital stock or any other securities
of the Company or its subsidiaries or any rights, warrants or options to
acquire any such shares or other securities;
(ii) issue, deliver, sell or grant any shares of its capital stock,
any other equity or voting interests or any securities convertible into,
or exchangeable for, or any options, warrants or rights to acquire, any
such shares, voting securities or convertible securities or "phantom"
stock, "phantom" stock rights, stock appreciation rights or stock based
performance units (other than the issuance of Shares and associated
Preferred Stock Purchase Rights upon the exercise of Company Stock
Options (as defined in the Merger Agreement) outstanding on May 26, 2000
and the issuance of Shares upon the exercise of the Rights).
(iii) amend its articles of incorporation or by-laws (or other
comparable charter or organizational documents);
(iv) acquire or agree to acquire (A) by merging or consolidating
with, or by purchasing a substantial equity interest in or portion of the
assets of, or by any other manner, any business or any corporation,
partnership, joint venture, association or other business organization or
division thereof, or (B) any assets that are material, individually or in
the aggregate, to the Company and its subsidiaries, taken as a whole,
except for purchases of inventory in the ordinary course of business
consistent with past practice;
(v) (A) grant to any current or former officer, director or
employee of the Company or any of its subsidiaries any increase in
compensation, except to the extent required under employment agreements
in effect as of the date of the most recent audited financial statements
included in the Company's filings with the Commission or, with respect to
employees (other than directors, officers or key employees) in the
ordinary course of business consistent with prior practice, (B) grant to
any current or former employee, officer or director of the Company or any
of its subsidiaries any increase in severance or termination pay, except
to the extent required under any agreement in effect as of the date of
the most recent audited financial statements included in the Company's
filings with the Commission, (C) enter into any employment, consulting,
indemnification, severance or termination agreement with any such
employee, officer or director, (D) establish, adopt, enter into or amend
in any material respect any collective bargaining agreement or Company
Benefit Plan (as defined in the Merger Agreement) or (E) take any action
to accelerate any rights or benefits, or make any material determinations
not in the ordinary course of business consistent with prior practice,
under any collective bargaining agreement or Company Benefit Plan;
(vi) make any change in accounting methods, principles or practices
materially affecting the reported consolidated assets, liabilities or
results of operations of the Company, except insofar as may have been
required by a change in Generally Accepted Accounting Principles
("GAAP");
(vii) sell, lease (as lessor), license or otherwise dispose of or
subject to any lien or other encumbrance any material properties or
assets, except (A) sales of obsolete assets in the ordinary course of
business consistent with past practice, (B) sales of inventory in the
ordinary course of business consistent with prior practice and (C) the
sale of Lens Express, Inc. on the terms set forth in the definitive
agreement providing for such sale, a copy of which has been filed with
the Commission;
(viii) (A) incur any indebtedness for borrowed money or guarantee
any such indebtedness of another person, issue or sell any debt
securities or warrants or other rights to acquire any debt securities of
the Company or any of its subsidiaries, guarantee any debt securities of
another person, enter into any "keep well" or other agreement to maintain
any financial statement condition of another person or enter into any
arrangement having the economic effect of any of the foregoing, except
for short-term borrowings from persons that are not
28
directors, officers or employees of the Company or any of its
subsidiaries incurred in the ordinary course of business consistent with
past practice, or (B) make any loans, advances or capital contributions
to, or investments in, any other person, other than to or in the Company
or any direct or indirect wholly owned subsidiary of the Company or
loans, investments and advances in connection with the sale of the
products of the Company and its subsidiaries in the ordinary course of
business consistent with prior practice to persons that are not
directors, officers or employees of the Company or any of its
subsidiaries, not to exceed $100,000 individually or $1,000,000 in the
aggregate;
(ix) make or agree to make any new capital expenditure or
expenditures that are in excess of $50,000 individually or $250,000 in
the aggregate;
(x) make or change any material tax election or settle or compromise
any material tax liability or refund, except for liabilities not in
excess of $100,000 individually or $1,000,000 in the aggregate;
(xi) (A) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise) in excess of $50,000 individually or $500,000 in the
aggregate, 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 Company's filings
with the Commission or incurred in the ordinary course of business
consistent with past practice, (B) cancel any indebtedness in excess of
$50,000 individually or $500,000 in the aggregate or waive any claims or
rights of substantial value or (C) 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;
(xii) enter into, renew, extend, amend, modify, waive any material
provision of, or terminate any lease or similar commitment, in each case
providing for payments in excess of $100,000 over the term of such lease
or commitment (or until the date on which such lease or commitment may be
terminated by the Company without penalty); or
(xiii) authorize, or commit or agree to take, any of the foregoing
actions.
BOARD OF DIRECTORS. The Merger Agreement provides that promptly upon the
first acceptance for payment of, and payment by the Purchaser for, any Shares
pursuant to the Offer, the Purchaser shall be entitled to designate such number
of directors on the Company's Board of Directors as will give the Purchaser,
subject to compliance with Section 14(f) of the Exchange Act, representation on
the Company's Board of Directors equal to at least that number of directors,
rounded up to the next whole number, which is the product of (a) the total
number of directors on the Company's Board of Directors (giving effect to the
directors elected pursuant to this sentence) multiplied by (b) the percentage
that (i) such number of Shares so accepted for payment and paid for by the
Purchaser plus the number of Shares otherwise owned by the Purchaser or any
other subsidiary of Parent bears to (ii) the number of such Shares outstanding,
and the Company shall, at such time, cause the Purchaser's designees to be so
elected; PROVIDED that in the event that the Purchaser's designees are appointed
or elected to the Company's Board of Directors, until the Effective Time the
Company's Board of Directors shall have at least three directors who are
directors on the date of the Merger Agreement and who are not officers of the
Company (the "INDEPENDENT DIRECTORS"); and PROVIDED FURTHER that, in such event,
if the number of Independent Directors is reduced below three for any reason
whatsoever, any remaining Independent Directors (or Independent Director, if
there is only one remaining) will be entitled to designate persons to fill such
vacancies who will be deemed to be Independent Directors for purposes of the
Merger Agreement or, if no Independent Directors then remain, the other
directors will designate three persons to fill such vacancies who are not
officers, stockholders or affiliates of the Company, Parent or the Purchaser,
and such persons will be deemed to be Independent Directors for purposes of the
Merger
29
Agreement. Subject to applicable Law, the Company is required under the Merger
Agreement to take all action requested by Parent necessary to effect any such
election, including mailing to its stockholders the Information Statement
containing the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder, and the Company will make such mailing with
the mailing of the Schedule 14D-9 (provided that the Purchaser has provided to
the Company on a timely basis all information required to be included in the
Information Statement with respect to the Purchaser's designees). In connection
with the foregoing, the Company is required to promptly, at the option of the
Purchaser, either increase the size of the Board of Directors of the Company or
obtain the resignation of such number of its current directors as is necessary
to enable the Purchaser's designees to be elected or appointed to the Board of
Directors of the Company as provided above.
STOCK OPTIONS. The Merger Agreement provides that the Board of Directors of
the Company (or, if appropriate, any committee administering the Company Stock
Plans (as defined in the Merger Agreement)) shall adopt such resolutions or take
such other actions as are required to adjust the terms of all outstanding
Company Stock Options (as defined in the Merger Agreement) and all outstanding
Company SARs (as defined in the Merger Agreement), in each case whether vested
or unvested granted before the date of the Merger Agreement under any Company
Stock Plan to provide that each such Company Stock Option (and any Company SAR
related thereto) outstanding immediately prior to the first acceptance for
payment of Shares pursuant to the Offer shall be canceled in exchange for a cash
payment by the Company as soon as practicable following the first acceptance for
payment of Shares pursuant to the Offer of an amount equal to (i) the excess, if
any, of (x) the highest price per Share to be paid pursuant to the Offer over
(y) the exercise price per Share subject to such Company Stock Option,
multiplied by (ii) the number of Shares issuable pursuant to the unexercised
portion of such Company Stock Options.
The Company has agreed to use its best efforts to obtain all consents of the
holders of Company Stock Options as shall be necessary to effectuate the
foregoing. At Parent's request, payment may be withheld in respect of any
Company Stock Option until all necessary consents with respect to such Company
Stock Option are obtained.
The Merger Agreement provides that the Company Stock Plans shall terminate
as of the Effective Time, 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 Time, and the Company shall ensure that following the Effective
Time no holder of a Company Stock Option or Company SAR or any participant in
any Company Stock Plan or other Company Benefit Plan shall have any right
thereunder to acquire any capital stock of the Company or the surviving
corporation in the Merger.
EMPLOYEE BENEFITS. The Merger Agreement provides that Parent will cause the
surviving corporation in the Merger (i) to maintain for a period of one year
after the Effective Time the Company Benefit Plans (other than equity-based
plans) in effect on the date of the Merger Agreement or (ii) to provide benefits
(other than equity-based plans) to each current employee of the Company and its
subsidiaries that are not materially less favorable in the aggregate to such
employees than those benefits in effect for such employees on the date of the
Merger Agreement.
In addition, from and after the Control Date and the Effective Time, Parent
is required to cause the Company or the surviving corporation in the Merger, as
applicable, to honor in accordance with their respective terms (as in effect on
the date of the Merger Agreement), all the Company's employment, severance and
termination agreements, plans and policies disclosed in the Company's disclosure
schedule to the Merger Agreement including any change in control provisions
contained therein.
The Merger Agreement further provides that with respect to any "employee
benefit plan", as defined in Section 3(3) of ERISA, maintained by Parent or any
of its subsidiaries (including any severance plan), for all purposes, including
determining eligibility to participate and vesting, service with the Company or
any of its subsidiaries shall be treated as service with Parent or any of its
subsidiaries; PROVIDED that such service need not be recognized to the extent
that such recognition would result in any duplication of benefits.
30
RIGHTS AGREEMENT; CONSEQUENCES IF RIGHTS TRIGGERED. The Merger Agreement
provides that the Board of Directors of the Company shall take all action
requested in writing by Parent in order to render the Rights inapplicable to the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement. Except as approved in writing by Parent, the Board of Directors of
the Company may not (i) amend the Company Rights Agreement (as defined in the
Merger Agreement), (ii) redeem the Rights or (iii) take any action with respect
to, or make any determination under, the Company Rights Agreement in each case
in a manner adverse to Parent or the Purchaser. The Merger Agreement further
provides that if any Distribution Date, Stock Acquisition Date or Common Stock
Event (each as defined in the Company Rights Agreement) occurs under the Company
Rights Agreement at any time during the period from the date of the Merger
Agreement to the Effective Time, the Company and Parent shall make such
adjustment to the price being offered for the Shares as the Company and Parent
shall mutually agree so as to preserve the economic benefits that the Company
and Parent each reasonably expected on the date of the Merger Agreement to
receive as a result of the consummation of the Offer, the Merger and the other
transactions contemplated by the Merger Agreement.
TRANSFERS OF CERTAIN INTANGIBLE ASSETS. The Merger Agreement provides that
no later than simultaneously with the first acceptance for payment of, and
payment by the Purchaser for, at least two-thirds of the Fully Diluted Shares
(a) the Company shall cause its subsidiary, Autonomous Technologies Corp.
("AUTONOMOUS") to transfer (x) certain of the intellectual property rights of
Autonomous and its subsidiaries and (y) certain licenses, approvals and
registrations issued by, or filed with, the United States Food and Drug
Administration, and all other Governmental Entities performing similar
functions, and all rights therein, of Autonomous and its subsidiaries with
respect to any products of Autonomous and its subsidiaries to Alcon
Universal Ltd. ("AUL"), an affiliate of Parent, in exchange for a cash payment
by AUL in an amount equal to the fair market value of the transferred assets,
and (b) the Company shall transfer to AUL all of the outstanding shares of stock
in its subsidiary, Summit Technology Ireland B.V., a Netherlands corporation
("DutchCo"), in exchange for a cash payment by AUL in an amount equal to the net
book value of DutchCo. If any consent required to transfer an asset has not been
obtained prior to the time at which such transfer would otherwise occur, Parent
and the Company shall cooperate in any lawful and reasonable arrangement
proposed by Parent under which AUL shall obtain the economic claims, rights and
benefits under such asset until such consent has been obtained.
INDEMNIFICATION AND INSURANCE. Parent and the Purchaser have agreed in the
Merger Agreement that Parent shall, to the fullest extent permitted by law,
cause the Company (from and after the Control Date) and the surviving
corporation in the Merger (from and after the Effective Time) to honor all the
Company's obligations to indemnify, defend and hold harmless (including any
obligations to advance funds for expenses) the current and former directors and
officers of the Company and its subsidiaries against all losses, claims, damages
or liabilities arising out of acts or omissions by any such directors and
officers occurring prior to the Effective Time to the maximum extent that such
obligations of the Company exist on the date of the Merger Agreement, whether
pursuant to the Company's charter, the Company's by-laws, the BCL, individual
indemnity agreements or otherwise, and such obligations shall survive the Merger
and shall continue in full force and effect in accordance with the terms of the
Company's charter, the Company's by-laws and such individual indemnity
agreements from the Effective Time until the expiration of the applicable
statute of limitations with respect to any claims against such directors or
officers arising out of such acts or omissions. In the event a current or former
director or officer of the Company or any of its subsidiaries is entitled to
indemnification, such director or officer shall be entitled to reimbursement
from the Company (from and after the Control Date) or the corporation surviving
the Merger (from and after the Effective Time) for reasonable attorney fees and
expenses incurred by such director or officer in pursuing such indemnification,
including payment of such fees and expenses by the corporation surviving the
Merger or the Company, as applicable, in advance of the final disposition of
such action upon receipt of an undertaking by such current or former director or
officer to repay such payment if it shall be adjudicated that such current or
former director or officer was not entitled to such payment.
31
The Merger Agreement also provides that from and after the Control Date for
a period of six years after the Effective Time, Parent shall cause to be
maintained in effect the current policies of directors' and officers' liability
insurance maintained by the Company (provided that Parent may either
(i) substitute therefor policies with reputable and financially sound carriers
or (ii) maintain self insurance or similar arrangements through a financially
sound insurance affiliate of Parent, in each case of at least the same coverage
and amounts containing terms and conditions which are no less advantageous) with
respect to claims arising from or related to facts or events which occurred at
or before the Effective Time; PROVIDED, HOWEVER, that Parent shall not be
obligated to make annual premium payments for such insurance to the extent such
premiums exceed 200% of the annual premiums paid as of the date hereof by the
Company for such insurance (such 200% amount, the "MAXIMUM PREMIUM"). If such
insurance coverage cannot be obtained at all, or can only be obtained at an
annual premium in excess of the Maximum Premium, Parent shall maintain the most
advantageous policies of directors' and officers' insurance obtainable for an
annual premium equal to the Maximum Premium. In the Merger Agreement, the
Company has represented to Parent that the Maximum Premium is $400,000.
The Company has agreed in the Merger Agreement to maintain, through the
Effective Time, the Company's existing directors' and officers' insurance in
full force and effect without reduction of coverage.
The Merger Agreement also provides that the by-laws of the corporation
surviving the Merger shall contain the provisions that are set forth, as of the
date of the Merger Agreement, in Article VIII of the by-laws of the Company,
which provisions shall not be directly or indirectly (by amending, repealing or
otherwise modifying the Articles of Organization of the Company) amended,
repealed or otherwise modified for a period of six years from the Effective Time
in any manner that would affect adversely the rights thereunder of individuals
who at or at any time prior to the Effective Time were directors, officers,
employees or other agents of the Company. Additionally, if the corporation
surviving the merger or any of its successors or assigns (i) consolidates with
or merges into any other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger and the continuing or
surviving entity does not assume the indemnification obligations of the
surviving corporation, or (ii) transfers all or substantially all of its
properties and assets to any person, then, and in each such case, proper
provision shall be made so that the successors and assigns of the corporation
surviving the merger assume, as a matter of law or otherwise, the obligations.
Parent has agreed in the Merger Agreement to guarantee that if for any
reason the Company or the corporation surviving the merger, as the case may be,
shall not meet its obligations, Parent shall meet such obligations described
above in full when and as such obligations arise.
REASONABLE EFFORTS; NOTIFICATION. The Merger Agreement provides that each
of the parties shall use all reasonable efforts to take, or cause to be taken,
all reasonable actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things reasonably necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Offer, the Merger and the other transactions
contemplated by the Merger Agreement, including (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 the Merger Agreement or the consummation of the
transactions contemplated by the Merger Agreement, including, when reasonable,
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 the Merger Agreement and to fully carry out the purposes of the
Merger Agreement; PROVIDED that the obligations set forth on this sentence shall
not be
32
deemed breached as a result of actions by the Company expressly permitted by the
provisions described under "Takeover Proposals". In connection with and without
limiting the foregoing, the Company and the Board of Directors of the Company
have agreed to (i) take all action necessary to ensure that no state takeover
statute or similar statute or regulation is or becomes applicable to the Merger
Agreement or any transaction contemplated by the Merger Agreement and (ii) if
any state takeover statute or similar statute or regulation becomes applicable
to the Merger Agreement, take all action necessary to ensure that the Offer, the
Merger and the other transactions contemplated by the Merger Agreement may be
consummated as promptly as practicable on the terms contemplated by the Merger
Agreement and otherwise to minimize the effect of such statute or regulation on
the Offer, the Merger and the other transactions contemplated by the Merger
Agreement. Nothing in the Merger Agreement is deemed to require any party to
waive any substantial rights or agree to any substantial limitation on its
operations or to dispose of any significant asset or collection of assets. As
promptly as practicable after the consummation of the Offer, the Company shall
use all reasonable efforts to notify Parent of any actions or nonactions of,
waivers, consents and approvals from, and registrations and filings with,
Governmental Entities, and any consents, approvals or waivers from third
parties, that would be required in connection with the consummation of the
Merger in the event that Parent elects to merge the Company with and into the
Purchaser instead of merging the Purchaser into the Company.
The Company shall give prompt notice to Parent, and Parent or the Purchaser
shall give prompt notice to the Company, of (i) any representation or warranty
made by it contained in the Merger Agreement that is qualified as to materiality
becoming untrue or inaccurate in any respect or any such representation or
warranty that is not so qualified becoming untrue or inaccurate in any material
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 the 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 the Merger
Agreement.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains various
customary representations and warranties, including representations relating to
corporate existence and power; capitalization; corporate authorizations;
subsidiaries; absence of conflicts; Commission filings; absence of certain
changes; contracts; absence of undisclosed liabilities; government
authorizations; litigation; compliance with laws; absence of changes in benefit
plans; excess parachute payments; employment agreements; taxes; intellectual
property; accuracy of certain disclosures; brokers' and other fees and the
opinion of the Company's financial advisor.
Certain representations and warranties in the Merger Agreement provide
exceptions for items that are not "material" or that are not reasonably likely
to have a "Company Material Adverse Effect". For purposes of the Merger
Agreement and the Offer, a "COMPANY MATERIAL ADVERSE EFFECT" means a material
adverse effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as a whole, a
material adverse effect on the ability of the Company to perform its obligations
under the Merger Agreement or a material adverse affect on the ability of the
Company to consummate the Offer, the Merger and the other transactions
contemplated by the Merger Agreement.
PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. The Merger
Agreement may be amended by the parties at any time, whether before or after the
Company Stockholder Approval has been obtained; PROVIDED that, after the Company
Stockholder Approval has been obtained, there shall be made no amendment that by
law requires further approval by the Company's stockholders without the further
approval of such stockholders and PROVIDED, FURTHER, that after the Merger
Agreement is adopted by the Company's stockholders, no such amendment or
modification shall be made that reduces the amount or changes the form of Merger
Consideration or otherwise materially and adversely affects the rights of the
Company's stockholders hereunder, without the further approval of such
33
stockholders. The Merger Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties thereto.
At any time prior to the Effective Time, the parties may (a) extend the time
for the performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and warranties
contained in the Merger Agreement or in any document delivered pursuant thereto
or (c) waive compliance with any of the agreements or conditions contained
therein. Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure by any party to the Merger Agreement to assert any of
its rights under the Merger Agreement or otherwise shall not constitute a waiver
of such rights.
A termination of the Merger Agreement, an amendment of the Merger Agreement
or an extension or waiver shall, in order to be effective, require in the case
of Parent, the Purchaser or the Company, action by its Board of Directors or the
duly authorized designee of its Board of Directors; PROVIDED that in the case of
the Company, such action shall also require action by a majority of the
Independent Directors.
THE CONFIDENTIALITY AGREEMENT
Alcon Laboratories, Inc., the principal operating subsidiary of Parent, and
the Company entered into a Confidentiality Agreement on November 5, 1999.
Pursuant to the Confidentiality Agreement, the Company and Alcon agreed to keep
confidential certain information provided by the Company or its representatives.
The Merger Agreement provides that certain information exchanged pursuant to the
Merger Agreement will be subject to the Confidentiality Agreement.
PLANS FOR THE COMPANY
After the purchase of Shares by the Purchaser pursuant to the Offer, Parent
may appoint its representatives to the Company's Board of Directors in
proportion to its ownership of the outstanding Shares. See "The Merger
Agreement--Board of Directors" above. Following completion of the Offer and the
Merger, Parent intends to operate the Company as a subsidiary of Parent under
the direction of Parent's management. Parent's principal reason for acquiring
the Company is the strategic fit of the Company's operations with Parent's
operations. Parent intends to continue to review 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 corporate structure, operational headquarters, capitalization,
management or dividend policy.
APPRAISAL RIGHTS
The holders of Shares do not have appraisal rights as a result of the Offer.
However, if the Merger is consummated, holders of Shares at the Effective Time
will have certain rights pursuant to the provisions of Sections 86 through 97 of
the BCL (the "APPRAISAL PROVISIONS") to dissent and demand appraisal of their
Shares. Under the Appraisal Provisions, dissenting stockholders who comply with
the applicable statutory procedures will be entitled to demand payment of fair
value for their stock. If a stockholder and the surviving corporation do not
agree on such fair value, the stockholder will have the right to a judicial
determination of fair value of such stockholder's Shares (exclusive of any
element of value arising from the accomplishment or expectation of the Merger)
and to receive payment of such fair value in cash, together with any interest as
determined by the court. Any such judicial determination of the fair value of
Shares could be based upon factors other than, or in addition to, the price per
Share to be paid in the Merger or the market value of the Shares. The value so
determined could be more or less than the price per Share to be paid in the
Merger.
34
The foregoing summary of the Appraisal Provisions does not purport to be
complete and is qualified in its entirety by reference to the Appraisal
Provisions. FAILURE TO FOLLOW THE STEPS REQUIRED BY THE APPRAISAL PROVISIONS FOR
PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
GOING-PRIVATE TRANSACTIONS
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 consummated more than one year after the
termination of the Offer. If applicable, Rule 13e-3 requires, among other
things, that certain financial information concerning the fairness of the Merger
and the consideration offered to minority stockholders in the Merger be filed
with the Commission and disclosed to stockholders prior to the consummation of
the Merger.
13. DIVIDENDS AND DISTRIBUTIONS
As discussed in Section 12, the Merger Agreement provides that from May 26,
2000, to the earliest to occur of the termination of the Merger Agreement, the
Control Date or the Effective Time, without the prior written consent of Parent,
the Company may not declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock except for dividends
and distributions by a direct or indirect wholly owned subsidiary of the Company
to its parent.
14. CERTAIN CONDITIONS OF THE OFFER
The Merger Agreement provides that the Purchaser will not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-l(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), to pay for any Shares tendered pursuant
to the Offer unless (i) there shall have been validly tendered and not withdrawn
prior to the expiration of the Offer that number of Shares which, together with
that number of Shares owned by Parent, the Purchaser and Parent's other
subsidiaries, would represent at least two-thirds of the Fully Diluted Shares
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. The term
"FULLY DILUTED SHARES" means all outstanding securities entitled generally to
vote in the election of directors of the Company on a fully diluted basis, after
giving effect to the exercise or conversion of all options, rights and
securities exercisable or convertible into such voting securities. Furthermore,
notwithstanding any other term of the Offer or the Merger Agreement, the
Purchaser shall not be required to accept for payment or to pay for any Shares
not theretofore accepted for payment or paid for, and may terminate or amend the
Offer, (A) with the consent of the Company or (B) without the consent of the
Company at any time on or after the date of the Merger Agreement and before the
first acceptance of such Shares for payment or the payment therefor, when any of
the following conditions exists:
(a) there shall be threatened or pending any suit, action or proceeding
by any Governmental Entity, or pending any suit, action or proceeding with a
reasonable likelihood or success by any other person, (i) challenging the
acquisition by Parent or the Purchaser of any Shares, seeking to restrain or
prohibit the making or consummation of the Offer or the Merger or any other
transaction contemplated by the Merger Agreement, or seeking to obtain from
the Company, Parent or the Purchaser 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 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, or to compel the Company, Parent or any
of their respective subsidiaries 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 other transaction
35
contemplated by the Merger Agreement, (iii) seeking to impose limitations on
the ability of Parent or the Purchaser to acquire or hold, or exercise full
rights of ownership of, any Shares, including the right to vote the Shares
acquired by it on all matters properly presented to the stockholders of the
Company, or (iv) seeking to prohibit Parent or any of its subsidiaries from
effectively controlling in any material respect the business or operations
of the Company and its subsidiaries;
(b) any statute, law (including common law), legislation,
interpretation, ordinance, rule or regulation, domestic or foreign or
judgment, order, injunction, or decree, domestic or foreign, enacted,
entered, enforced, promulgated, amended or issued with respect to, or deemed
applicable to, or any required consent or approval withheld with respect to,
(i) Parent, the Company or any of their respective subsidiaries or (ii) the
Offer, the Merger or any other transaction contemplated by the Merger
Agreement, by any Governmental Entity that is reasonably likely to result,
directly or indirectly, in any of the consequences referred to in
paragraph (a) above;
(c) except as disclosed in the Company's filings with the Commission or
the Company's disclosure letter delivered to Parent and referred to in the
Merger Agreement, since the date of the most recent audited financial
statements included in the Company's filings with the Commission there shall
have occurred any event, change, effect or development that, individually or
in the aggregate, has had or would reasonably be expected to have, a Company
Material Adverse Effect;
(d) the Board of Directors of the Company or any committee thereof
shall have withdrawn or modified in a manner adverse to Parent or the
Purchaser, or publicly proposed to withdraw or modify in a manner adverse to
Parent or the Purchaser, its approval or recommendation of the Merger
Agreement, the Offer or the Merger, failed to recommend to the Company's
stockholders that they accept the Offer and give the Company Stockholder
Approval or approved or recommended, or publicly proposed to approve or
recommend, any Takeover Proposal;
(e) any representation and warranty of the Company in the Merger
Agreement that is qualified as to materiality shall not be true and correct
or any such representation and warranty that is not so qualified shall not
be true and correct in any material respect, as of the date of the Merger
Agreement and as of such time, except to the extent such representation and
warranty expressly relates to an earlier date (in which case on and as of
such earlier date);
(f) 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, which failure to perform or comply cannot be or has not
been cured within five days after the giving of written notice to the
Company of such breach; or
(g) the Merger Agreement shall have been terminated in accordance with
its terms;
which, in the sole and good faith judgment of the Purchaser or Parent, in any
such case, and regardless of the circumstances giving rise to any such condition
(including any action or inaction by Parent or any of its affiliates), makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of the Purchaser and
Parent and may be asserted by the Purchaser or Parent regardless of the
circumstances giving rise to such condition or may be waived by the Purchaser
and Parent in whole or in part at any time and from time to time in their sole
discretion (subject to the terms in the Merger Agreement). The failure by
Parent, the Purchaser or any other affiliate of 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.
36
15. CERTAIN LEGAL MATTERS
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company and discussions of representatives
of Parent with representatives of the Company, none of the Purchaser, Parent or
the Company 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 (and
the indirect acquisition of the stock of the Company's subsidiaries) as
contemplated herein or of any approval or other action by any Governmental
Entity that would be required or desirable for the acquisition or ownership of
Shares by the Purchaser as contemplated herein. Should any such approval or
other action be required or desirable, Parent and the Purchaser 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, subject to the terms and conditions of the Merger
Agreement, decline to accept for payment or pay for any Shares tendered. See
Section 14 for a description of certain conditions to the Offer.
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. In
XXXXX X. MITE CORP., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS CORP.
V. 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 affairs of a target corporation without prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of U.S. federal courts
ruled that various state takeover statutes were unconstitutional insofar as they
apply to corporations incorporated outside the state of enactment.
Based on information supplied by the Company and the approval of the Merger
Agreement, the Merger and the Offer by the Board of Directors of the Company,
the Purchaser does not believe that any state takeover statutes or similar laws
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. See Section 14.
37
ANTITRUST
UNITED STATES ANTITRUST LAW. Under the provisions of the HSR Act applicable
to the Offer, the acquisition of Shares under the Offer may be consummated after
the expiration of a 15-calendar day waiting period commenced by the filing of a
Notification and Report Form, which is required to be filed by Nestle as the
ultimate parent entity of Parent, with respect to the Offer, unless Nestle
receives a request for additional information or documentary material from the
Antitrust Division of the Department of Justice or the Federal Trade Commission
(the "FTC") or unless early termination of the waiting period is granted. Nestle
is in the process of preparing such filing. If, within the initial 15-day
waiting period, either the Antitrust Division or the FTC requests additional
information 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 Nestle 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 Nestle. 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. Expiration or
termination of the applicable waiting period under the HSR Act is a condition to
the Purchaser's obligation to accept for payment and pay for Shares tendered
pursuant to the Offer.
The Merger will 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 Antitrust Division and the FTC 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 acquisition 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 the
Company or its subsidiaries or Nestle 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 result thereof.
FOREIGN ANTITRUST LAWS. Based on information provided by the Company, the
Purchaser believes that notices of the acquisition of the Company will have to
be filed under the laws of a number of foreign jurisdictions. There can be no
assurance that a challenge to the Offer under these foreign laws on competition
or other grounds will not be made or, if such a challenge is made, of the result
thereof.
16. FEES AND EXPENSES
Xxxxxxx, Xxxxx & Co. is acting as Dealer Manager for the Offer and is
providing certain financial advisory services to Parent and the Purchaser in
connection with the Offer. Xxxxxxx, Xxxxx & Co. will receive a fee in the range
of $6.5 million to $8.5 million if 50% or more of the outstanding Shares are
acquired pursuant to the Offer or otherwise. If less than 50% of the outstanding
Shares are acquired pursuant to the Offer or otherwise, Xxxxxxx, Xxxxx & Co.
will receive a fee to be mutually agreed between Parent and Xxxxxxx, Xxxxx & Co.
In addition, if the Merger Agreement is terminated and Parent receives the
Termination Fee from the Company, Xxxxxxx, Xxxxx & Co. will receive a fee equal
to 20% of the Termination Fee. Parent also has agreed to reimburse Xxxxxxx,
Xxxxx & Co. for reasonable out-of-pocket expenses, including reasonable fees and
expenses of its legal counsel, and to indemnify
38
Xxxxxxx, Xxxxx & Co. and certain related parties against certain liabilities,
including liabilities under the federal securities laws, arising out of its
engagement.
Parent and the Purchaser have retained ChaseMellon Shareholder Services,
L.L.C. to act as the Information Agent and ChaseMellon Shareholder Services,
L.L.C. 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 and expenses under the U.S. 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 Dealer Manager) in connection
with the solicitation of tenders of Shares pursuant to the Offer. Brokers,
dealers, banks, trust companies and other members 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. Neither the Purchaser nor Parent is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof 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.
In any jurisdiction where securities, blue sky or other laws require the Offer
to be made by a licensed broker or dealer, the Offer is being made on behalf of
the Purchaser by the Dealer Manager or one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
WE HAVE NOT AUTHORIZED ANY PERSON 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, YOU MUST NOT RELY UPON SUCH
INFORMATION OR REPRESENTATION AS HAVING BEEN AUTHORIZED.
Parent and the Purchaser have filed with the Commission the Schedule TO
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, 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
Section 8 (except that such material will not be available at the regional
offices of the Commission).
ALCON ACQUISITION CORP.
June 5, 2000
39
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
PARENT, THE PURCHASER AND NESTLE S.A.
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The name, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the directors and executive officers of Parent are set forth below. Unless
otherwise indicated, each director and executive officer is a citizen of the
United States. All occupations, offices or positions of employment listed
opposite an individual's name were with Alcon Laboratories, Inc. The business
address of each such director or executive officer is Alcon Holdings Inc., 0000
Xxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxx 00000-0000.
NAME, POSITION WITH PARENT AND PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
CITIZENSHIP MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
------------------------------ --------------------------------------------------------
Xxxxxxx X. X. Xxxx........................ Chairman of the Board, President and Chief Executive
Director, Chairman of the Board, Chief Officer since October 1997; Executive Vice President,
Executive Officer and President U.S. Operations from September 1996 to October 1997;
(United Kingdom) Executive Vice President, International from February
1996 to September 1996; Executive Vice President prior
thereto.
X. Xxxxx Xxxxx............................ Executive Vice President and Chief Operating Officer
Director, Executive Vice President and since October 1997; Executive Vice President,
Chief Operating Officer International from August 1996 to October 1997;
Executive Vice President, Surgical Division prior
thereto.
Xxxxxxx X. Xxxxxx, Xx..................... Senior Vice President, Finance and Chief Financial
Director, Chief Financial Officer Officer since April 1997; Vice President/Controller,
and Senior Vice President International prior thereto.
Xxxxxx X. Xxxxx........................... Senior Vice President, Research and Development since
Director and Senior Vice President, April 1997; Senior Vice President, Development prior
Research and Development thereto.
Xxxxxx X. Xxxxxx.......................... Vice President, United States Taxes and Tax Counsel
Vice President, Tax since March 2000; Vice President, Taxes from January
1999 to March 2000; Director, Taxes from January 1998 to
January 1999; Director, Tax Planning and Audits from
January 1997 to January 1998; Associate Director, Tax
Planning from March 1995 to January 1997.
Xxxxxxx X. XxxXxxxxx...................... Treasurer, International Operations since February 2000;
Treasurer Treasurer, United States Operations from January 1998 to
February 2000; Assistant Treasurer, Domestic Division
prior thereto.
Xxxxxx X. Xxxxxxxx........................ Vice President, Associate General Counsel and Assistant
Vice President and Secretary Secretary since February 1995.
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name,
citizenship, business address, present principal occupation or employment and
material occupations, positions, offices or employment for the past five years
of each of the directors and executive officers of the Purchaser are indicated
below. The business address of each such director and executive officer is Alcon
Acquisition Corp., in care of Alcon Holdings Inc., 0000 Xxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxx 00000-0000.
I-1
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND POSITION WITH PURCHASER MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
-------------------------------- --------------------------------------------------------
Xxxxxx X. Xxxxxxxx........................ (see above information)
Director and President
Xxxxxxx X. XxxXxxxxx...................... (see above information)
Director and Treasurer
Xxxxxx X. Xxxxxx.......................... (see above information)
Director and Clerk
3. EXECUTIVE OFFICERS AND DIRECTORS OF NESTLE S.A. The name, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the executive officers and directors of Nestle S.A. are set forth below. Unless
otherwise indicated, all occupations, positions, offices or employments were
with Nestle S.A. Unless otherwise indicated, all occupations, positions, offices
or employment were held during the last five years.
PRESENT PRINCIPAL OCCUPATION
MATERIAL POSITIONS HELD DURING THE PAST
NAME PRESENT BUSINESS ADDRESS FIVE YEARS CITIZENSHIP
---- -------------------------- ------------------------------------------- --------------------------------
EXECUTIVE OFFICERS
Xxxxx Xxxxxxx- Xxxxxx S.A. Managing Director and Chief Executive Austria
Letmathe Avenue Nestle 55 Officer since June 1997; General Manager
CH-1800 Vevey and Executive Vice President prior thereto.
Switzerland
Xxxxx X. Xxxxx Xxxxxx S.A. General Manager and Executive Vice Switzerland
Avenue Nestle 55 President, Finance/Control since June 1996;
CH-1800 Vevey President of the Swiss Society for
Switzerland Financial Market Research prior thereto.
Xxxxxxxxx Xxxxxxxx Nestle S.A. General Manager and Executive Vice Spain
Avenue Nestle 55 President, Pharma & Cosmetics, Human
CH-1800 Vevey Resources and Corporate Affairs since June
Switzerland 1997; Director and Vice Chairman of Nestle
Espana S.A. prior thereto.
Xxxxxxx X. Xxxxx Nestle S.A. General Manager and Executive Vice United States
Avenue Nestle 55 President, Strategic Business Units and
CH-1800 Vevey Marketing since January 2000; Managing
Switzerland Director and President of Nestle Canada
Inc. prior thereto.
Xxxxxxx X. Xxxxxxx Xxxxxx S.A. General Manager and Executive Vice United Kingdom
Avenue Nestle 55 President, Zone AOA.
CH-1800 Vevey
Switzerland
Xxxxxx X. Xxxxxx Nestle S.A. Executive Vice President, Technical Switzerland/
Avenue Nestle 55 Production and Research and Development. Austria
CH-1800 Vevey
Switzerland
Xxxxxx Xxxxxx Nestle S.A. Executive Vice President, Zone EUR since Switzerland
Avenue Nestle 55 January 1997; General Director of Nestle
CH-1800 Vevey Deutschland prior thereto.
Switzerland
Xxxxxx X. Represas de Nestle S.A. Executive Vice President, Zone AMS. Mexico
Xxxxxxx Xxxxxx Xxxxxx 00
XX-0000 Xxxxx
Xxxxxxxxxxx
I-2
PRESENT PRINCIPAL OCCUPATION
MATERIAL POSITIONS HELD DURING THE PAST
NAME PRESENT BUSINESS ADDRESS FIVE YEARS CITIZENSHIP
---- -------------------------- ------------------------------------------- --------------------------------
DIRECTORS
Xxxxxx X. Xxx Nestle S.A. Chairman of the Board since May 2000; Switzerland
Avenue Nestle 55 Chairman of the Board of Credit Suisse
CH-1800 Vevey Group from prior to June 1995 to May 2000;
Switzerland President of the Executive Board of Credit
Suisse Group from prior to June 1995 to
December 1996.
Xxxxx Xxxxxx Roche Holding S.A. Vice-Chairman of the Board since June 1997; Switzerland
P.O. Box Chairman of the Board of Roche Holding
CH-4070 Basel S.A.; Chief Executive Officer of Roche
Switzerland Holding S.A. from prior to June 1995 to
December 1996.
Xxxxx X.X. Boeckli Boeckli Bodmer & Partner Law Professor and Lawyer at Boeckli Xxxxxx Switzerland
Postfach 2348 & Partner.
CH-4002 Basel
Switzerland
Xxxxx Xxxxxxx-Lemathe Nestle S.A. (see above information) Austria
Xxxxxx Xxxxxx 00
XX-0000 Xxxxx
Xxxxxxxxxxx
Xxxx X. Xxxxxxxxxx Xxxx des Mesanges Vice-Chairman of Xstrata Holding AG since Switzerland/Italy
Ch. de Sainte-Croix 13 May 1997; Chairman of Xxxxxx & Co. AG from
CH-1807 Blonay prior to June 1995 to March 2000.
Switzerland
Xxxxxx Xxxxxx 00, Xxx xx Xxxxx Consultant. Switzerland
CH-1204 Geneve
Switzerland
Xxxx-Xxxxxx Xxxxxx L'Oreal Vice-Chairman of the Board of L'Oreal S.A. France
00, Xxx Xxxxxx
X-00000 Xxxxxx
Xxxxxx
Xxxxx xx Xxxx xx Xxxx, Pictet, Chairman of the Board and Partner of de Switzerland
Xxxxxxxxxx & Cie S.A. Pury, Pictet, Turrettini & Cie S.A. since
Binzmuhlestrasse 14 July 1996; Co-Chairman of the Board of Asea
8050 Zurich Brown Boveri Ltd. prior thereto.
Switzerland
Xxxxxxx Xxxxxxxxxxx Anova Holding S.A. Chairman of the Board of Anova Holding S.A. Switzerland
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxxxx Xxxxxxx plc Chief Executive Officer of Marconi plc United Kingdom
One Xxxxxx Street since September 1996; Chief Executive
London W1X 8AQ Officer of Xxxxx Industries plc prior
England thereto.
Xxxxx Xxxxxxx Claridenstrasse 3 Member of the Swiss Parliament; Vice- Switzerland
CH-8810 Xxxxxx Chairman of SV-Service AG since May 1999.
Switzerland
I-3
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for 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:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
BY MAIL: BY OVERNIGHT COURIER: BY HAND:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 0000 00 Xxxxxxxxxx Xxxx 000 Xxxxxxxx
Xxxxx Xxxxxxxxxx, XX 00000 Mail Stop--Reorg 13th Floor
Ridgefield Park, NJ 00000 Xxx Xxxx, XX 00000
BY FACSIMILE TRANSMISSION:
(000) 000-0000
(FOR ELIGIBLE INSTITUTIONS
ONLY)
CONFIRM BY TELEPHONE:
(000) 000-0000
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and locations
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery or any other tender offer
materials may be obtained from the Information Agent. 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:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Banks And Brokers Call: (000) 000-0000
All Others Please Call Toll-Free: (000) 000-0000
THE DEALER MANAGER FOR THE OFFER IS:
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (Call Collect)
