OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING COMMON SHARES
AND
SERIES A CONVERTIBLE PREFERRED SHARES
OF
ACME-CLEVELAND CORPORATION
AT
$27 NET PER SHARE
BY
WEC ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
XXXXXXX CORPORATION
----------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, APRIL 3, 1996, UNLESS THE OFFER IS EXTENDED.
----------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED A NUMBER OF SHARES WHICH, WHEN ADDED TO THE SHARES BENEFICIALLY
OWNED BY PARENT, WOULD REPRESENT AT LEAST A MAJORITY OF THE SHARES
OUTSTANDING ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE, (2) THE
ACQUISITION OF SHARES PURSUANT TO THE OFFER BEING AUTHORIZED BY THE
SHAREHOLDERS OF THE COMPANY PURSUANT TO THE OHIO CONTROL SHARE ACQUISITION
LAW OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT THE OHIO
CONTROL SHARE ACQUISITION LAW IS INVALID OR INAPPLICABLE TO SUCH ACQUISITION
AND (3) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT, AFTER
CONSUMMATION OF THE OFFER, THE RESTRICTIONS CONTAINED IN THE OHIO BUSINESS
COMBINATION LAW WILL NOT APPLY TO THE PURCHASER'S PROPOSED MERGER WITH THE
COMPANY. SEE SECTION 14. THE OFFER IS NOT CONDITIONED ON THE RECEIPT OF
FINANCING.
--------------
IMPORTANT
Any shareholder desiring to tender all or any portion of such
shareholder's Shares should either (i) complete and sign the Letter of
Transmittal (or a facsimile thereof) in accordance with the instructions in
the Letter of Transmittal, have such shareholder's signature thereon
guaranteed if required by Instruction 1 to the Letter of Transmittal, mail or
deliver the Letter of Transmittal (or such facsimile) and any other required
documents to the Depositary and either deliver the certificates for such
Shares to the Depositary along with the Letter of Transmittal (or facsimile)
or deliver such Shares pursuant to the procedure for book-entry transfer set
forth in Section 2 or (ii) request such shareholder's broker, dealer,
commercial bank, trust company or other nominee to effect the transaction for
such shareholder. A shareholder having Shares registered in the name of a
broker, dealer, commercial bank, trust company or other nominee must contact
such broker, dealer, commercial bank, trust company or other nominee if such
shareholder desires to tender such Shares.
If a shareholder desires to tender Shares and such shareholder's
certificates for Shares are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis, or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date, such shareholder's tender may be effected by following the procedure
for guaranteed delivery set forth in Section 2.
Questions and requests for assistance may be directed to Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, the Dealer Manager, or to X.X. Xxxx &
Co., Inc., the Information Agent, 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 and other related materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks and trust
companies.
--------------------------
The Dealer Manager for the Offer is:
XXXXXXX XXXXX & CO.
March 7, 1996
TABLE OF CONTENTS
Page
--------
Introduction .......................................................................... 1
Section 1. Terms of the Offer ........................................................ 3
Section 2. Procedures for Tendering Shares ........................................... 5
Section 3. Withdrawal Rights ......................................................... 7
Section 4. Acceptance for Payment and Payment ........................................ 8
Section 5. Certain Federal Income Tax Consequences ................................... 9
Section 6. Price Range of the Shares; Dividends on the Shares ........................ 10
Section 7. Effect of the Offer on the Market for the Shares; Exchange Act Registration;
Margin Regulations ........................................................ 10
Section 8. Certain Information Concerning the Company ................................ 11
Section 9. Certain Information Concerning Parent and the Purchaser ................... 12
Section 10. Source and Amount of Funds ................................................ 14
Section 11. Background of the Offer ................................................... 15
Section 12. Purpose of the Offer; Plans for the Company ............................... 16
Section 13. Dividends and Distributions ............................................... 18
Section 14. Certain Conditions of the Offer ........................................... 19
Section 15. Certain Legal Matters ..................................................... 22
Section 16. Fees and Expenses ......................................................... 27
Section 17. Miscellaneous ............................................................. 28
Schedule I--Directors and Executive Officers of Parent and the Purchaser ............. S-1
To the Holders of Shares of
ACME-CLEVELAND CORPORATION:
WEC Acquisition Corporation, a Delaware corporation (the "Purchaser") and
a wholly owned subsidiary of Xxxxxxx Corporation, a Delaware corporation
("Parent"), hereby offers to purchase all outstanding common shares, par
value $1 per share (the "Common Shares"), and all outstanding Series A
Convertible Preferred Shares, without par value (the "Preferred Shares" and,
together with the Common Shares, the "Shares"), of Acme-Cleveland Corporation,
an Ohio corporation (the "Company"), at a price of $27 per Share, net to the
seller in cash, without interest thereon (the "Offer Price"), upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the
related Letter of Transmittal (which, as amended from time to time, together
constitute the "Offer").
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to the
Offer. The Purchaser will pay all charges and expenses of Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), as Dealer Manager (in
such capacity, the "Dealer Manager"), First Chicago Trust Company of New
York, as Depositary (the "Depositary"), and X.X. Xxxx & Co., as Information
Agent (the "Information Agent"), incurred in connection with the Offer. See
Section 16.
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. Parent currently intends to propose and seek to
have the Company consummate, as soon as practicable following the
consummation of the Offer, a merger or similar business combination with the
Purchaser (the "Proposed Merger"), pursuant to which each then outstanding
Share (other than Shares owned by the Purchaser or Parent and Shares owned by
shareholders who perfect their dissenters' rights under the Ohio Revised Code
(the "ORC")), would be converted into the right to receive an amount in cash
equal to the price per Share paid pursuant to the Offer. See Sections 11 and 12.
Parent intends to seek to negotiate with the Company with respect to the
acquisition of the Company. If such negotiations result in a definitive
merger agreement between the Company and Parent, certain material terms of
the Offer may change and Parent would not proceed with any solicitation with
regard to the Special Meeting referred to below. Accordingly, such
negotiations could result in, among other things, termination of the Offer
and submission of a different acquisition proposal to the Company's
shareholders for their approval.
In order to increase the likelihood that the Company and the Purchaser
enter into the Proposed Merger, Parent and the Purchaser have taken
preliminary steps to commence a solicitation of appointments of designated
agents ("agent designations") to call a special meeting of the Company's
shareholders (the "Special Meeting") at which, among other things, Parent and
the Purchaser will propose that the holders of Shares (i) remove all of the
incumbent directors of the Company and (ii) elect the nominees of the
Purchaser as directors of the Company to fill the vacancies created thereby.
The nominees of the Purchaser will, if elected at the Special Meeting, and
subject to their fiduciary duties, be committed to take such actions as may
be required to facilitate prompt consummation of the Offer and the Proposed
Merger.
THE OFFER DOES NOT CONSTITUTE A SOLICITATION OF PROXIES OR AGENT
DESIGNATIONS FOR ANY MEETING OF THE COMPANY'S SHAREHOLDERS. ANY SUCH
SOLICITATION WILL BE MADE ONLY PURSUANT TO PROXY MATERIALS COMPLYING WITH THE
REQUIREMENTS OF SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934 (THE
"EXCHANGE ACT"), AND THE RULES AND REGULATIONS THEREUNDER.
The Offer is subject to the fulfillment of a number of conditions
including, without limitation, the following:
Minimum Condition. Consummation of the Offer is conditioned upon there
being validly tendered a number of Shares which, when added to the Shares
beneficially owned by Parent, constitutes at least a majority of the
Shares outstanding on a fully diluted basis on the date of purchase (the
"Minimum Condition"). For purposes of this Offer, "on a fully diluted basis"
means, as of any date, the number of Shares outstanding, together with Shares
that the Company is then required to issue pursuant to obligations
outstanding at that date under employee stock option or other benefit plans
or otherwise (assuming all such options are then exercisable).
Parent beneficially owns 305,000 Common Shares.
According to the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1995 (the "Company 10-Q"), as of January 25, 1996, there
were outstanding 6,411,578 Common Shares and 161,374 Preferred Shares. Each
Preferred Share is convertible into one Common Share and is entitled to one
vote. The Preferred Shares vote together with the Common Shares as a single
class. According to the Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1995 (the "Company 10-K"), there were 631,208 Common
Shares reserved for issuance under the Company stock plans and for conversion
of the Preferred Shares.
Control Share Condition. Consummation of the Offer is conditioned upon the
acquisition of Shares pursuant to the Offer by the Purchaser being authorized
by the shareholders of the Company pursuant to Section 1701.831 of the ORC
(the "Ohio Control Share Acquisition Law") at a special meeting of
shareholders of the Company (the "Ohio Control Share Acquisition Meeting")
duly and validly called and held in accordance with the Ohio Control Share
Acquisition Law, or the Purchaser being satisfied, in its sole discretion,
that the Ohio Control Share Acquisition Law is invalid or inapplicable to the
acquisition of Shares pursuant to the Offer (the "Control Share Condition").
Under the Ohio Control Share Acquisition Law, unless a corporation's
articles of incorporation or regulations otherwise provide, any "control
share acquisition" of an "issuing public corporation" (such as the Company)
may be made only with the prior authorization of its shareholders in
accordance with the Ohio Control Share Acquisition Law. Neither the Company's
Articles of Incorporation ("Articles") nor the Regulations of the Company
("Regulations") currently contains a provision by which the Company "opts
out" of the Ohio Control Share Acquisition Law. However, Parent and the
Purchaser intend to solicit from the Company's shareholders sufficient agent
designations for the call of a Special Meeting at which, among other things,
Parent and the Purchaser may propose that, if the Control Share Condition
shall not have theretofore been satisfied, the Regulations of the Company be
amended to provide that the Ohio Control Share Acquisition Law does not apply
to the purchase of the Shares pursuant to the Offer.
Unless and until such time as the Company's Articles or Regulations are
amended to include such an "opt out" provision, the Ohio Control Share
Acquisition Law requires shareholder approval of any proposed "control share
acquisition" of the Company. A "control share acquisition" is the
acquisition, directly or indirectly, by any person of control in respect of
shares that entitles such person to exercise or direct the exercise of 20% or
more of the voting power in the election of directors. A control share
acquisition must be approved in advance (i) by the holders of at least a
majority of the voting power of the corporation in the election of directors
represented at a Ohio Control Share Acquisition Meeting at which a quorum is
present and (ii) by the holders of a majority of such voting power excluding
the voting shares owned by the acquiring shareholder and certain other
"Interested Shares" (as defined in Section 15, below). The Ohio Control Share
Acquisition Law provides that a quorum shall be deemed to be present at the
Ohio Control Share Acquisition Meeting if at least a majority of the Shares,
and a majority of the Shares excluding those that are "Interested Shares,"
are represented at such meeting in person or by proxy.
Under the Ohio Control Share Acquisition Law, the Company must call the
Ohio Control Share Acquisition Meeting to consider the authorization of an
acquisition of Shares covered by the Ohio Control Share Acquisition Law no
later than ten days, and it must be held no later than 50 days, following its
receipt of an "acquiring person statement" from the acquiring person.
However, the acquiring person may request, at the time of delivery of the
acquiring person statement, that the Ohio Control Share Acquisition Meeting
not be held sooner than 30 days after receipt by the Company of such
statement.
Without waiving their right to challenge the validity of all or any part
of the Ohio Control Share Acquisition Law or to seek an amendment to the
Company's Regulations opting out of the Ohio Control Share Acquisition Law,
and reserving their right to take actions inconsistent with the applicability
of the Ohio Control Share Acquisition Law, Parent and the Purchaser delivered
to the Company on March 7, 1996 an acquiring person statement relating to
the Offer. Parent and the Purchaser have requested that the Ohio Control
Share Acquisition Meeting not be held for at least 30 days after the receipt
of the acquiring person statement by the Company. Accordingly, the Ohio
Control Share Acquisition Meeting
2
must be held no earlier than April 6, 1996 and no later than April 26, 1996.
In addition, Parent and the Purchaser brought an action for declaratory and
other relief against the Company on March 7, 1996 in the United States
District Court for the Southern District of Ohio, Eastern Division, (the
"Ohio Federal District Court"), seeking, among other things, that the Court
declare that certain provisions of the Ohio Control Share Acquisition Law and
Section 1701.01(CC)(2) of the ORC, to the extent they are applied to impair the
voting rights of the Disqualified Shares (as defined in Section 15 below) are
unconstitutional or otherwise invalid as such provisions may be applied to the
Offer. See Section 15.
Although Parent and the Purchaser have taken the foregoing actions
pursuant to the Ohio Control Share Acquisition Law with respect to the
matters to be considered at the Ohio Control Share Acquisition Meeting and
have described their purposes and plans with respect thereto in this Offer to
Purchase, in order to comply with the requirements of the Exchange Act,
Parent and the Purchaser are not, as of the date hereof, soliciting proxies
with respect to the proposed approval of the acquisition of Shares pursuant
to the Offer at the Ohio Control Share Acquisition Meeting. Parent and the
Purchaser presently intend, however, to solicit proxies from the shareholders
of the Company with respect to the Ohio Control Share Acquisition Meeting
(unless the Purchaser is satisfied that the provisions of the Ohio Control
Share Acquisition Law are invalid or are not applicable to the acquisition of
Shares pursuant to the Offer).
Business Combination Condition. Consummation of the Offer is conditioned
upon the Purchaser being satisfied, in its sole discretion, that after the
consummation of the Offer the restrictions contained in Chapter 1704 of the
ORC (the "Ohio Business Combination Law") will not apply to the Proposed
Merger (the "Business Combination Condition").
The Ohio Business Combination Law prohibits certain business combinations
and other transactions (each, a "Chapter 1704 Transaction"), such as the
Proposed Merger, between an issuing public corporation (such as the Company)
and any "Interested Shareholder" (defined generally as any person that,
directly or indirectly, is entitled to exercise or direct the exercise of 10%
or more of the outstanding voting power of a corporation in the election of
directors) for a period of three years after the date the person becomes an
Interested Shareholder. After such three year period, a Chapter 1704
Transaction between an issuing public corporation and such Interested
Shareholder is prohibited unless either certain "fair price" provisions are
complied with or the Chapter 1704 Transaction is approved by certain
supermajority shareholder votes. The Ohio Business Combination Law
restrictions do not apply to a Chapter 1704 Transaction with an Interested
Shareholder if either the acquisition of the corporation's shares that would
cause the Interested Shareholder to become an Interested Shareholder, or the
Chapter 1704 Transaction, is approved by a resolution of the board of
directors of the corporation adopted prior to the date on which the
Interested Shareholder became an Interested Shareholder. See Section 15.
Parent and the Purchaser are hereby requesting that the Company's Board of
Directors take appropriate action so that the Ohio Business Combination Law
is not applicable to the acquisition of Shares pursuant to the Offer or the
Proposed Merger. There can be no assurances that the Board of Directors will
do so. In the event that the Company's Board of Directors fails to do so
prior to the intended date of the consummation of the Offer, the Purchaser
expects its nominees to the Company's Board of Directors, if elected at the
Special Meeting, and subject to their fiduciary duties to take such
appropriate action as shall result in the satisfaction of the Business
Combination Condition.
Certain other conditions to the Offer are described in Section 14. The
Purchaser expressly reserves the right, in its sole discretion, to waive any
one or more of the conditions to the Offer. See Sections 14 and 15. The Offer
is not conditioned on the receipt of financing.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
SECTION 1. TERMS OF THE OFFER
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 extension
or amendment), the Purchaser will accept for payment and pay for all Shares
validly tendered prior to the Expiration Date. The term "Expiration Date"
means 12:00 midnight, New York City time, on Wednesday, April 3, 1996, unless
and until the Purchaser,
3
in its sole discretion, shall have extended the period of time during which
the Offer is open, in which event the term "Expiration Date" shall mean the
latest time and date at which the Offer, as so extended by the Purchaser,
will expire.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THE SATISFACTION OF THE
MINIMUM CONDITION, THE CONTROL SHARE CONDITION, THE BUSINESS COMBINATION
CONDITION, THE EXPIRATION OR TERMINATION OF ALL WAITING PERIODS IMPOSED BY
THE XXXX-XXXXX-XXXXXX ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE
REGULATIONS THEREUNDER (THE "HSR ACT") AND THE SATISFACTION OF THE OTHER
CONDITIONS SET FORTH IN SECTION 14. THE OFFER IS NOT CONDITIONED ON THE
RECEIPT OF FINANCING.
Subject to the applicable rules and regulations of the Securities Exchange
Commission (the "Commission"), the Purchaser reserves the right, in its sole
discretion, at any time and from time to time, and regardless of whether or
not any of the events set forth in Section 14 hereof shall have occurred or
shall have been determined by the Purchaser to have occurred, to (a) extend
the period of time during which the Offer is open, and thereby delay
acceptance for payment of and the payment for any Shares, by giving oral or
written notice of such extension and delay to the Depositary and (b) waive
any condition or amend the Offer in any other respect by giving oral or
written notice of such waiver or amendment to the Depositary. During any such
extension, all Shares previously tendered and not properly withdrawn will
remain subject to the Offer, subject to the right of a tendering shareholder
to withdraw such shareholder's Shares. See Section 3. UNDER NO CIRCUMSTANCES
WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR
NOT THE PURCHASER EXERCISES ITS RIGHT TO EXTEND THE OFFER.
If by the Expiration Date any or all of the conditions to the Offer have
not been satisfied or waived, the Purchaser reserves the right (but shall not
be obligated), subject to the applicable rules and regulations of the
Commission, to (a) terminate the Offer and not accept for payment or pay for
any Shares and return all tendered Shares to tendering shareholders, (b)
waive all the unsatisfied conditions and accept for payment and pay for all
Shares validly tendered prior to the Expiration Date, (c) extend the Offer
and, subject to the right of shareholders 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) amend the Offer.
The rights reserved by the Purchaser in the two preceding paragraphs are
in addition to the Purchaser's rights pursuant to Section 14. There can be no
assurance that the Purchaser will exercise its right to extend the Offer. Any
extension, amendment or termination will be followed as promptly as
practicable by public announcement. In the case of an extension, Rule
14e-l(d) under the Securities Exchange Act of 1934 (the "Exchange Act")
requires that the announcement be issued no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date, or the first opening of the New York Stock Exchange (the "NYSE") on the
next business day after the previously scheduled Expiration Date, in
accordance with the public announcement requirements of Rule 14d-4(c) under
the Exchange Act. Subject to applicable law (including Rules 14d-4(c) and
14d-6(d) under the Exchange Act, which require that any material change in
the information published, sent or given to shareholders in connection with
the Offer be promptly disseminated to shareholders in a manner reasonably
designed to inform shareholders of such change), and without limiting the
manner in which the Purchaser may choose to make any public announcement, the
Purchaser will not have any obligation to publish, advertise or otherwise
communicate any such public announcement other than by making a release to
the Dow Xxxxx News Service. 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 extends the Offer or if the Purchaser is delayed in its
acceptance for payment of or payment (whether before or after its acceptance
for payment of Shares) for Shares or it is unable to pay for Shares pursuant
to the Offer for any reason, then, without prejudice to the Purchaser's
rights under the Offer, the Depositary may retain tendered Shares on behalf
of the Purchaser, and such Shares may not be withdrawn except to the extent
tendering shareholders are entitled to withdrawal rights as described in
Section 3. However, the ability of the Purchaser to delay the payment for
Shares that the Purchaser has accepted for payment is limited by Rule
14e-1(c) under the Exchange Act, which requires that a bidder pay the
consideration offered or return the securities tendered by or on behalf of
holders of securities promptly after the termination or withdrawal of such
bidder's offer.
4
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 extend the Offer and disseminate additional tender offer
materials to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under
the Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer or information
concerning the Offer, other than a change in price or a change in the
percentage of 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 shareholders and investor
response.
Requests are being made to the Company pursuant to Rule 14d-5 of the
Exchange Act and Section 1701.37 of the ORC for the use of the Company's
shareholder lists and security position listings for the purpose of
disseminating the Offer to holders of Shares. This Offer to Purchase, the
related Letter of Transmittal and other relevant materials will be mailed to
record holders of Shares, and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the
names of whose nominees, appear on the shareholder 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, by the
Purchaser following receipt of such lists or listings from the Company, or by
the Company if it so elects.
SECTION 2. PROCEDURES FOR TENDERING SHARES
Valid Tender. For a shareholder validly to tender Shares pursuant to the
Offer, either (a) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message (as
defined below), and any other required documents, must be 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 either certificates for tendered
Shares ("Share Certificates") must be received by the Depositary at one of
such addresses or such Shares must be delivered pursuant to the procedures
for book-entry transfer set forth below (and a Book-Entry Confirmation (as
defined below) received by the Depositary), in each case prior to the
Expiration Date, or (b) the tendering shareholder must comply with the
guaranteed delivery procedures set forth below.
Book-Entry Transfer. The Depositary will establish accounts with respect
to the Shares at The Depository Trust Company, the Midwest Securities Trust
Company and the Philadelphia Depository Trust Company (the "Book-Entry
Transfer Facilities") for purposes of the Offer within two business days
after the date of this Offer to Purchase. Any financial institution that is a
participant in any of the Book-Entry Transfer Facilities' systems may make
book-entry delivery of Shares by causing a Book-Entry Transfer Facility to
transfer such Shares into the Depositary's account in accordance with such
Book-Entry Transfer Facility's procedures for such transfer. However,
although delivery of Shares may be effected through book-entry transfer into
the Depositary's account at a Book-Entry Transfer Facility, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or an Agent's Message (as defined
below), and any other required documents, must, in any case, be transmitted
to, and received by, the Depositary at one of its addresses set forth on the
back cover of this Offer to Purchase prior to the Expiration Date, or the
tendering shareholder must comply with the guaranteed delivery procedures
described below. The confirmation of a book-entry transfer of Shares into the
Depositary's account at a Book-Entry Transfer Facility as described above is
referred to herein as a "Book-Entry Confirmation." DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgement from the participant in such
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 such participant.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE
5
TENDERING SHAREHOLDER. SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS 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.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal (a) if the Letter of Transmittal is signed by the registered
holder (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) 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) if 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 Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(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 Share Certificates are
registered in the name of a person other than the signer of the Letter of
Transmittal, or if payment is to be made or Share Certificates for Shares not
tendered or not accepted for payment are to be returned to a person other
than the registered holder of the Share Certificates surrendered, the
tendered Share Certificates must be endorsed or accompanied by appropriate
stock powers, in either case signed exactly as the name or names of the
registered holders appear on the Share Certificates, with the signatures on
the Share Certificates or stock powers guaranteed as described above. See
Instructions 1 and 5 to the Letter of Transmittal.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's Share Certificates are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such shareholder's tender may be
effected if all the following conditions are met:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary, as provided below, prior to the Expiration Date; and
(iii) the Share Certificates, representing all tendered Shares, in
proper form for transfer (or a Book-Entry Confirmation with respect to all
such Shares), together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof), with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message,
and any other required documents are received by the Depositary within
three trading days after the date of execution of such Notice of
Guaranteed Delivery. A "trading day" is any day on which the NYSE is open
for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a guarantee by an Eligible Institution in the
form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted
for payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) Share 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, and (c) any other documents required by the
Letter of Transmittal. Accordingly, tendering shareholders may be paid at
different times depending upon when Share Certificates or Book-Entry
Confirmations with respect to Shares are actually received by the Depositary.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE
SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER
OR ANY DELAY IN MAKING SUCH PAYMENT.
6
The Purchaser's acceptance for payment of Shares validly tendered pursuant
to the Offer will constitute a binding agreement between the tendering
shareholder and the Purchaser upon the terms and subject to the conditions of
the Offer.
Appointment as Proxy. By executing a Letter of Transmittal as set forth
above, a tendering shareholder irrevocably appoints designees of the
Purchaser as such shareholder'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 shareholder's rights with respect to the Shares
tendered by such shareholder 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 March 5, 1996 (the
"Applicable Date"). All such proxies will be irrevocable and considered
coupled with an interest in the tendered Shares. Such appointment will be
effective when, and only to the extent that, the Purchaser accepts such
Shares for payment pursuant to the Offer. Upon such acceptance for payment,
all prior powers of attorney, proxies and consents given by such shareholder
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 deemed
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, adjourned or
postponed meeting of the Company's shareholders, 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 shareholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tender of Shares will be determined by the Purchaser, in its sole discretion,
whose determination will be final and binding on all parties. The Purchaser
reserves the absolute right to reject any or all tenders determined by it not
to be in proper form or the acceptance for payment of or payment for which
may, in the opinion of the Purchaser's counsel, be unlawful. The Purchaser
also reserves the absolute right to waive any defect or irregularity in the
tender of any Shares of any particular shareholder whether or not similar
defects or irregularities are waived in the case of other shareholders. No
tender of Shares will be deemed to have been validly made until all defects
or irregularities relating thereto have been cured or waived. None of the
Purchaser, Parent, 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) will be final and binding on all parties.
Backup Withholding. In order to avoid "backup withholding" of federal
income tax on payments of cash pursuant to the Offer, a shareholder
surrendering Shares in the Offer must, unless an exemption applies, provide
the Depositary with such shareholder'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 shareholder is not subject to backup
withholding. If a shareholder does not provide such shareholder's correct TIN
or fails to provide the certifications described above, the Internal Revenue
Service (the "IRS") may impose a penalty on such shareholder and the payment
of cash to such shareholder pursuant to the Offer may be subject to backup
withholding of 31% of the amount of such payment. All shareholders
surrendering Shares pursuant to the Offer should complete and sign the main
signature form and the Substitute Form W-9 included as part of the Letter of
Transmittal to provide the information and certification necessary to avoid
backup withholding (unless an applicable exemption exists and is proved in a
manner satisfactory to the Purchaser and the Depositary). Noncorporate
foreign shareholders 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.
SECTION 3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares pursuant
to the Offer 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 by the Purchaser
pursuant to the Offer, may also be withdrawn at any time after May 5, 1996.
7
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary
at its address 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 Share Certificates have been
delivered or otherwise identified to the Depositary, then, prior to the
physical release of such Share Certificates, the serial numbers shown on such
Share Certificates must be submitted to the Depositary and, unless such
Shares have been tendered by an Eligible Institution, the signatures on the
notice of withdrawal must be guaranteed by an Eligible Institution. If Shares
have been delivered pursuant to the procedure for book-entry transfer as set
forth in Section 2, any notice of withdrawal must also specify the name and
number of the account at the appropriate Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with such Book-Entry
Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares
properly withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. However, withdrawn Shares may be retendered by again
following one of the procedures described in Section 2 at any time prior to
the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination will be final and binding on all parties.
None of the Purchaser, Parent, 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 any notice of withdrawal or
incur any liability for failure to give any such notification.
SECTION 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 promptly after the Expiration Date. All
questions as to the satisfaction of such terms and conditions will be
determined by the Purchaser, in its sole discretion, whose determination will
be final and binding on all parties. See Sections 1 and 14. The Purchaser
expressly reserves the right, in its sole discretion, to delay acceptance for
payment of or payment for Shares in order to comply in whole or in part with
any applicable law, including, without limitation, the HSR Act. See Section
15. Any such delays will be effected in compliance with Rule 14e-l(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) Share
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, and (c) any other
documents required by the Letter of Transmittal. The per Share consideration
paid to any shareholder pursuant to the Offer will be the highest per Share
consideration paid to any other shareholder of the same class 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 as,
if and when the Purchaser gives oral or written notice to the Depositary of
the Purchaser's acceptance for payment of such Shares. Payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
validly tendering shareholders for the purpose of receiving payment from the
Purchaser and transmitting payment to tendering shareholders. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE
PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY
IN MAKING SUCH PAYMENT. Upon the deposit of funds with the Depositary for the
purpose of making payments to tendering shareholders, the Purchaser's
obligation to make such payment shall be satisfied and tendering shareholders
must thereafter look solely to the Depositary for payment of amounts owed to
them by reason of the acceptance for payment of Shares pursuant to the Offer.
The Purchaser will pay any stock transfer taxes with respect to the transfer
and sale
8
to it or its order pursuant to the Offer, except as otherwise provided in
Instruction 6 of the Letter of Transmittal, as well as any charges and
expenses of the Depositary and the Information Agent.
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), the Depositary may, nevertheless, on behalf of the Purchaser,
retain tendered Shares, and such Shares may not be withdrawn except to the
extent tendering shareholders are entitled to exercise, and duly exercise,
withdrawal rights as described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, Share Certificates for any such unpurchased Shares will be returned,
without expense to the tendering shareholder (or, in the case of Shares
delivered by book-entry transfer of such Shares into the Depositary's account
at a Book-Entry Transfer Facility pursuant to the procedure set forth in
Section 2, such Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility), as promptly as practicable after
the expiration, termination or withdrawal 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 shareholders to receive payment for Shares validly
tendered and accepted for payment pursuant to the Offer.
SECTION 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Proposed Merger will be a
taxable transaction for 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 or other tax
laws. Generally, for federal income tax purposes, a tendering shareholder
will recognize gain or loss equal to the difference between the amount of
cash received by the shareholder pursuant to the Offer or the Proposed Merger
and the aggregate tax basis in the Shares tendered by the shareholder and
purchased pursuant to the Offer or converted in the Proposed 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 in the
Proposed Merger, as the case may be.
If Shares are held by a shareholder as capital assets, gain or loss
recognized by the shareholder will be capital gain or loss, which will be
long-term capital gain or loss if the shareholder's holding period for the
Shares exceeds one year. Under present law, long-term capital gains
recognized by an individual shareholder will generally be taxed at a maximum
federal marginal tax rate of 28%, and long-term capital gains recognized by a
corporate shareholder will be taxed at a maximum federal marginal tax rate of
35%.
THE FOREGOING DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY
NOT BE APPLICABLE WITH RESPECT TO SHARES RECEIVED 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. SHAREHOLDERS ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES
TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN
INCOME AND OTHER TAX LAWS) OF THE OFFER AND THE PROPOSED MERGER.
9
SECTION 6. PRICE RANGE OF SHARES; DIVIDENDS ON THE SHARES
The Common Shares are listed on the NYSE under the symbol AMT. The
following table sets forth the high and low closing sales prices per Common
Share as reported on the NYSE Composite tape, together with the per Common
Share dividends paid by the Company as reported in publicly available sources.
HIGH LOW DIVIDENDS
------ ----- -----------
1994:
First quarter ......... 10 1/2 9 $0.11
Second quarter ........ 15 1/4 9 3/8 0.11
Third quarter ......... 14 10 1/2 0.11
Fourth quarter ........ 14 9 7/8 0.11
1995:
First quarter ......... 16 7/8 10 1/4 0.12
Second quarter ........ 28 16 1/2 0.12
Third quarter ......... 28 3/4 23 1/4 0.12
Fourth quarter ........ 26 3/4 16 1/8 0.12
1996:
First quarter (through
March 6) ............. 20 17 3/4 0.13
On March 6, 1996, the last full trading day before commencement of the
Offer, the closing sale price for the Common Shares was $20 per share.
SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE COMMON
SHARES.
By their terms, the Preferred Shares pay dividends of $1.80 per share per
year ($.45 per quarter). No price quotations are available for the Preferred
Shares.
SECTION 7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; 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.
Depending on the number of Common Shares purchased in the Offer, the
Common Shares may no longer meet the requirements of the NYSE for continued
listing. According to the NYSE's published guidelines, the NYSE would
consider delisting the Common Shares if, among other things, (i) the number
of record holders of at least 100 shares should fall below 1,200, (ii) the
number of publicly held Common Shares (exclusive of holdings of officers,
directors, members of their immediate families and other concentrated
holdings of 10% or more) should fall below 600,000 or (iii) the aggregate
market value of publicly held Common Shares should fall below $5,000,000.
According to the Company 10-K, as of September 30, 1995, there were 2,094
holders of record of Common Shares. If the NYSE were to delist the Common
Shares, it is possible that the Common Shares would trade on another securities
exchange or in the over-the-counter market and that price quotations for the
Common Shares would be reported by such exchange or through NASDAQ or other
sources. The extent of the public market for the Common Shares and availability
of such quotations would, however, depend upon such factors as the number of
holders, the aggregate market value of the publicly held Common Shares at such
time, the interest in maintaining a market in the Common Shares on the part of
securities firms, the possible termination of registration of the Common Shares
under the Exchange Act and other factors.
The Preferred Shares are not listed on any exchange or traded on NASDAQ.
According to the Company's Proxy Statement relating to its 1996 Annual
Meeting of Shareholders, all of the Preferred Shares are held by one person.
10
Exchange Act Registration. The Common Shares are currently registered
under the Exchange Act. Registration of the Common Shares under the Exchange
Act may be terminated upon application of the Company to the Commission if
the Common Shares are neither listed on a national securities exchange nor
held by 300 or more holders of record. Termination of registration of the
Common Shares under the Exchange Act would substantially reduce the
information required to be furnished by the Company to its shareholders and
to the Commission and would make certain provisions of the Exchange Act no
longer applicable to the Company, such as the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act, the requirement of
furnishing a proxy statement pursuant to Section 14(a) of the Exchange Act in
connection with shareholders' meetings and the related requirement of
furnishing an annual report to shareholders and the requirements of Rule
13e-3 under the Exchange Act with respect to "going private" transactions.
Furthermore, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities pursuant
to Rule 144 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 Common Shares under
the Exchange Act as soon after the completion of the Offer as the
requirements for such termination are met.
If registration of the Common Shares is not terminated prior to the
Proposed Merger, then the Shares will be delisted from all stock exchanges
and the registration of the Shares under the Exchange Act will be terminated
following the consummation of the Proposed Merger.
The Preferred Shares are not registered under the Exchange Act.
Margin Regulations. The Common 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 Common 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.
The Preferred Shares are not "margin securities."
SECTION 8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is an Ohio corporation with its principal offices at 00000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000-0000. According to the
Company 10-K, the Company's principal line of business has two major business
segments: (i) Telecommunication and Electronic Products and (ii) Precision
Products.
The Company's Telecommunication Products include automated data
transmission analyzers, single and multi-function test equipment,
computerized cable test and data base management systems, digital data access
devices, and molded cable closures and terminals used in outside plant and
network applications. Industrial controls include sensing devices and
switches, such as inductive, capacitive, and magnetic proximity sensors,
photoelectric sensors, encoders, and intelligent laser scanners that are
used in various industrial and power generation applications to detect and
communicate the presence or position of an object or part.
The Precision Products business segment is comprised of product businesses
that are based on, or relate to, precision measurement and analysis and other
technologies having precision needs and requirements. This segment includes
quality assurance products and systems, motion and positioning components and
systems, precision gauges, metal and punch form tooling, and specialty gears.
Set forth below is certain selected consolidated financial information
with respect to the Company and its subsidiaries excerpted from the
information contained in the Company 10-K and the Company 10-Q and the Company's
Quarterly Report on Form 10-Q for the quarter ended December 31, 1994. More
comprehensive financial information is included in the Company 10-K, such
Company 10-Qs and other documents filed by the Company with the Commission,
and the following summary is qualified in its entirety by reference to such
information. The Company 10-K, the Company 10-Qs and such other documents
should be available for inspection and copies thereof should be obtainable in
the manner set forth below under "Available Information."
11
ACME-CLEVELAND CORPORATION
SELECTED FINANCIAL INFORMATION
(in thousands, exept per share amounts)
THREE MONTHS ENDED
DECEMBER 31, FISCAL YEAR ENDED SEPTEMBER 30,
-------------------- --------------------------------
1995 1994 1995 1994 1993
--------- --------- --------- ---------- ---------
Income Statement Data:
Net Sales .......................... $ 30,575 $ 24,691 $120,716 $ 77,200 $ 81,510
Earnings from Continuing Operations
Before Extraordinary Item and
Cumulative Effect of Accounting
Changes (1) ....................... 1,441 [3,595] 3,791 2,511 4,792
Net Earnings (Loss) ................ 18,466 32,413 42,503 (23,421) 7,130
Earnings (Loss) per Share:
Earnings from Continuing Operations
Before Extraordinary Item and
Cumulative Effect of Accounting
Changes (1) ....................... $ 0.21 $ 0.54 $ 0.56 $ 0.35 $ 0.71
Net Earnings (Loss) ............... $ 2.73 $ 4.91 $ 6.30 $ (3.77) $ 1.07
Balance Sheet Data (at end of period):
Total Assets ....................... $149,122 $158,624 $140,253 $105,647 $123,889
Working Capital .................... 70,843 57,852 49,713 49,597 41,000
Long-Term Debt ..................... 610 1,151 687 1,219 2,286
Total Shareholders' Equity ......... 106,269 74,707 84,901 33,713 64,823
---------------
(1) Fiscal 1994 results include the impact of adopting three new accounting
standards, including SFAS No. 109 ("Accounting for Income Taxes"),
SFAS No. 106 ("Employers' Accounting for Postretirement Benefits Other
Than Pensions") and SFAS No. 112 ("Employeers' Accounting for
Postemployment Benefits").
Available Information. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file reports relating to its business, financial condition and other matters.
Information as of particular dates concerning the Company's directors and
officers, their remuneration, stock options and other matters, the principal
holders of the Company's securities and any material interest of such persons
in transactions with the Company is required to be disclosed in proxy
statements distributed to the Company's shareholders 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 Citicorp 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. Such
material should also be available for inspection at the offices of NYSE, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Company Information. The information concerning the Company contained in
this Offer to Purchase has been taken from or based upon publicly available
documents on file with the Commission and other publicly available
information. Although the 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.
SECTION 9. CERTAIN INFORMATION CONCERNING PARENT AND THE PURCHASER
Parent is a Delaware corporation which operates a variety of businesses
through two business segments: Tools and Components and Process/Environmental
Controls. The Tools and Components segment is one of the largest domestic
producers and distributors of general purpose mechanics' hand tools and
automotive specialty tools. Other products manufactured by this segment
include tool boxes and storage devices, diesel engine retarders, wheel
service equipment, drill chucks, custom designed headed tools and components,
hardware and components for the power generation and transmission industries,
high quality precision socket screws, fasteners, and high quality miniature
precision parts. The companies in the Process/Environmental segment produce
and sell underground storage tank leak detection systems and temperature,
level and position sensing devices, power switches and controls,
telecommunication line products, power protection products, liquid flow
measuring devices and electronic and mechanical counting and controlling
devices.
Approximately 43.4% of the outstanding common stock of the Parent is
beneficially owned by Xxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx. The aggregate
holdings for Xxxxxx and Xxxxxxxx Xxxxx include shares of Parent common stock
owned by Equity Group Holdings L.L.C. ("EGH") and Equity Group Holding II
12
L.L.C. ("EGH II"), of which Xxxxxx and Xxxxxxxx Xxxxx are the only members,
along with other shares of common stock of Parent which are directly owned by
such individuals. Xxxxxx and Xxxxxxxx Xxxxx are directors and executive officers
of Parent as well as directors of Purchaser. EGH and XXX XX are principally
engaged in the business of investing in the common stock of Parent. The offices
of Xxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxx, EGH and EGH II are located at 0000 00xx
Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000.
The Purchaser is a newly incorporated Delaware corporation and a wholly
owned subsidiary of Parent which to date has not conducted any business other
than in connection with the Offer and the Proposed Merger. The principal
executive offices of Parent and the Purchaser are located at 0000 00xx
Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000. DH Holdings Corporation, a
Delaware corporation and a direct wholly owned subsidiary of Parent ("DHHC"),
owns all outstanding shares of the Purchaser. Of the 305,000 Common Shares
beneficially owned by Parent, 304,900 are held by DHHC and 100 are held by the
Purchaser. DHHC contributed such shares to the Purchaser on March 5, 1996.
Set forth below is a summary of certain consolidated financial information
with respect to Parent and its subsidiaries excerpted or derived from the
information contained in Parent's Annual Report on Form 10-K for the year
ended December 31, 1994 (the "Parent 10-K"), Parent's Quarterly Reports on
Form 10-Q for the quarter ended September 30, 1994 and 1995 (the "Parent
10-Qs"). More comprehensive financial information is included in the complete
financial statements of Parent contained in the Parent 10-K and the Parent 10-Qs
on file with the Commission, and such financial statements are incorporated
herein by reference.
XXXXXXX CORPORATION
SELECTED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
NINE MONTHS ENDED
SEPTEMBER 30, FISCAL YEAR ENDED DECEMBER 31,
------------------------ --------------------------------------
1995 1994 1994 1993 1992
------------ ---------- ------------ ------------ ----------
Income Statement Data:
Net Revenues ......... $1,172,512 $933,621 $1,288,684 $1,075,529 $955,518
Income before change
in accounting
principle (1) ....... -- -- 81,650 53,749 31,601
Net Income ........... 77,868 56,892 81,650 17,749 31,601
Earnings per Share:
Income before change
in accounting
principle (1) ....... $ -- $ -- $ 1.40 $ .93 $ .55
Net Income ........... $ 1.30 $ .98 1.40 .31 .55
Balance Sheet Data
(at end of period):
Total Assets ......... $1,508,086 $985,636 $1,134,941 $ 872,472 $769,815
Working Capital ...... 16,173 97,339 (7,548) 42,398 17,614
Long-Term Debt ....... 176,399 131,215 116,515 131,350 137,305
Total Shareholders'
Equity .............. 554,286 424,925 476,100 363,666 348,379
------------
(1) On January 1, 1993, Parent adopted SFAS No. 106 requiring use of the
accrual method for post-retirement benefits other than pensions.
Available Information. Parent is subject to the informational requirements
of the Exchange Act and, in accordance therewith, files reports relating to
its business, financial condition and other matters. Information, as of
particular dates, concerning Xxxxxx's directors and officers, their
remuneration, stock options and other matters, the principal holders of
Parent's securities and any material interest of such persons in transactions
with Parent is required to be disclosed in proxy statements distributed to
Parent's shareholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection at the
Commission and copies thereof should be obtainable from the Commission and
the NYSE in the same manner as is set forth with respect to the Company in
Section 8. Such material should also be available on-line through XXXXX.
Contacts, etc. with the Company. Except as set forth in this Offer to
Purchase, no Purchaser Entity, or, to the best knowledge of any Purchaser
Entity, any of the persons listed in Schedule I hereto, or any
13
associate or majority-owned subsidiary of such persons, beneficially owns any
equity security of the Company, and no Purchaser Entity, or, to the best
knowledge of any Purchaser Entity, any of the other persons referred to
above, or any of the respective directors, executive officers or subsidiaries
of any of the foregoing, has effected any transaction in any equity security
of the Company during the past 60 days.
Except as set forth in this Offer to Purchase, no Purchaser Entity, or, to
the best knowledge of any Purchaser Entity, any of the persons listed in
Schedule I hereto has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Company, including, without limitation, any contract, arrangement,
understanding or relationship concerning the transfer or the voting of any
securities of the Company, joint ventures, loan or option arrangements, puts
or calls, guaranties of loans, guaranties against loss or the giving or
withholding of proxies. Except as set forth in this Offer to Purchase, no
Purchaser Entity, or, to the best knowledge of any Purchaser Entity, any of
the persons listed in Schedule I hereto has had any transactions with the
Company, or any of its executive officers, directors or affiliates that would
require reporting under the rules of the Commission.
Except as set forth in this Offer to Purchase, there have been no
contacts, negotiations or transactions between any Purchaser Entity, or their
respective subsidiaries, or, to the best knowledge of any Purchaser Entity,
any of the persons listed in Schedule I hereto, on the one hand, and the
Company or its executive officers, directors or affiliates, on the other
hand, concerning a merger, consolidation or acquisition, tender offer or
other acquisition of securities, election of directors, or a sale or other
transfer of a material amount of assets that would require reporting under
the rules of the Commission.
SECTION 10. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser to purchase all of the
Shares pursuant to the Offer and to pay fees and expenses related to the
Offer and the Proposed Merger is estimated to be approximately $185 million.
The Purchaser plans to obtain all funds needed for the Offer and the Proposed
Merger through a capital contribution from Parent.
Parent plans to obtain funds for such capital contribution through its
existing Credit Agreement, dated as of September 7, 1990, as amended, among
Parent and the banks listed therein (the "Credit Facility"). The Credit
Facility provides for revolving credit of up to $250 million for general
corporate purposes through November 1, 2000. At present, there is no
outstanding indebtedness under the Credit Facility. Loans under the Credit
Facility bear interest at one of the following rates, as selected by Parent
on the date of borrowing: (i) the Base Rate (as defined in the Credit
Facility), (ii) Adjusted CD Rate (as defined in the Credit Facility) or
(iii), the Eurodollar Rate (as defined in the Credit Facility) plus, in the
case of (ii) and (iii) a margin (ranging from 3/16 of one percent to 7/16 of
one percent) based on the leverage ratio of Parent at the end of the fiscal
quarter most recently then ended. As of the date of this Offer to Purchase,
the applicable margin would be 5/16 of one percent. The effective interest
rate as of the date of this Offer to Purchase would be approximately 5-11/16%.
The Credit Facility contains covenants relating to, among other things, the
maintenance of working capital, net worth, debt levels and interest coverage
and restrictions on the payment of dividends. The members of the bank group
providing the Credit Facility are Bankers Trust Company, Bank of America
Illinois, First Chicago Corp., The Chase Manhattan Bank (National
Association), Toronto Dominion Bank, Credit Suisse, Bank of Nova Scotia,
Industrial Bank of Japan, Bank of Tokyo, Chemical Banking Corporation, Credit
Lyonnais, NationsBank Corporation, Dresdner Bank Aktiengesellschaft, Wachovia
Bank, The Sanwa Bank, The Fuji Bank, SunTrust Bank, The Northern Trust
Company and The Sumitomo Bank.
The foregoing summary of the Credit Facility is qualified in its entirety
by reference to Exhibit 10(b) of Parent's Annual Report on Form 10-K for the
year ended December 31, 1990.
Although no definitive plan or arrangement for repayment of borrowings
under the Credit Facility has been made, Parent anticipates such borrowings
will be repaid with internally generated funds (including, if the Proposed
Merger is accomplished, those of the Company) and from other sources which
14
may include the proceeds of future bank refinancings or the public or private
sale of debt or equity securities. No decision has been made concerning the
method Parent will use to repay the borrowings under the Credit Facility.
Such decision will be made based on Parent's review from time to time of the
advisability of particular actions, as well as prevailing interest rates,
financial and other economic conditions and such other factors as Parent may
deem appropriate.
SECTION 11. BACKGROUND OF THE OFFER
On March 7, 1996, Xx. Xxxxxx X. Xxxxxxx, President and Chief Executive
Officer of Parent, sent the following letter to Xx. Xxxxx X. Xxxxx, Chairman
and Chief Executive Officer of the Company:
March 7, 1996
Xx. Xxxxx X. Xxxxx
Chairman and Chief Executive Officer
Acme-Cleveland Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxx 00000-0000
Dear Xx. Xxxxx:
Xxxxxxx Corporation is today commencing a cash tender offer to purchase
all outstanding common and preferred shares of Acme-Cleveland Corporation at a
price of $27 per share, a premium of 35% over yesterday's closing price of $20.
It is our intention to acquire any shares not purchased in the tender offer in a
subsequent merger for the same cash consideration paid to shareholders in the
tender offer.
Our offer is not subject to financing, but is subject to approval of the
offer under the Ohio Control Share Acquisition Law (unless such law is
invalid or inapplicable to the offer) and the inapplicability of the Ohio
Business Combination Law.
We believe that the transaction we are proposing represents a very
attractive opportunity for your shareholders. We are also convinced that the
combination of our companies will also be of great benefit for our respective
employees, suppliers and customers.
In light of the attractive terms of our offer, we request that the
Company's Board of Directors take appropriate actions so that the Ohio
Business Combination Law is rendered inapplicable to our proposed merger. We
expect that you will not take any other actions that would adversely affect
your shareholders' ability to receive the benefits of our proposed
transaction. It is our hope that we can proceed to complete a transaction
with a minimum of delay.
In order to increase the likelihood that our offer can be accepted by your
shareholders at the earliest possible date, we have today commenced an action
in the United States District Court for the Southern District of Ohio,
Eastern Division, challenging certain provisions of the Ohio Control Share
Acquisition Law and the Ohio Takeover Act.
Our proposed price is based upon our review of publicly available
information regarding the Company. If you believe that there are values not
reflected in your public filings, we ask that such information be made
available to us so that we can ensure that our offer reflects those values.
We and our advisors are ready to meet with you and your advisors to
discuss all aspects of our offer, and to answer any questions you or they may
have. Our objective is to promptly conclude a transaction that is supported
by you and the Company's Board of Directors.
Sincerely,
-------------------------
Xx. Xxxxxx X. Xxxxxxx
CEO and President
15
SECTION 12. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY
Purpose. The purpose of the Offer and the Proposed Merger is to enable
Parent to acquire control of, and the entire equity interest in, the Company.
The Offer, as the first step in the acquisition of the Company, is intended
to facilitate the acquisition of all the Shares. Parent currently intends to
propose and seek to consummate, as soon as practicable following the
consummation of the Offer, the Proposed Merger. The purpose of the Proposed
Merger is to acquire all Shares not purchased pursuant to the Offer or
otherwise. Pursuant to the Proposed Merger, each then outstanding Share
(other than Shares owned by Parent or any of its subsidiaries and Shares
owned by shareholders who perfect their dissenters' rights under the ORC) would
be converted into the right to receive an amount in cash equal to the price
per Share paid by the Purchaser pursuant to the Offer. Although it is the
Purchaser's current intention to propose and seek to enter into a definitive
merger agreement with the Company with respect to the Proposed Merger and to
consummate the Proposed Merger as promptly as practicable, there can be no
assurance that the Proposed Merger will be consummated or, if consummated, of
the timing or terms thereof. Consummation of the Proposed Merger will require
the adoption of a resolution by the Company's board of directors approving
the Proposed Xxxxxx and the affirmative vote of the holders of a majority of
the Shares. Alternatively, if the Purchaser purchases 90% or more of the
Common Shares and 90% or more of the Preferred Shares, the Proposed Merger
could be consummated without the approval of the shareholders through a
Short-Form Merger (described below under "The Proposed Merger").
In order to increase the likelihood that the Company and the Purchaser
enter into the Proposed Merger, Parent and the Purchaser have taken
preliminary steps to commence a solicitation of agent designations to call the
Special Meeting of the Company's shareholders at which, among other things,
Parent and the Purchaser will propose that the holders of Shares (i) remove all
of the incumbent directors of the Company and (ii) elect the nominees of the
Purchaser as directors of the Company to fill the vacancies created thereby.
The nominees of the Purchaser will, if elected at the Special Meeting, and
subject to their fiduciary duties, be committed to take such actions as may
be required to facilitate prompt consummation of the Offer and the Proposed
Merger.
In addition, the Purchaser presently intends to solicit proxies from the
shareholders of the Company with respect to the Ohio Control Share
Acquisition Meeting (unless the Purchaser is satisfied that the provisions of
the Ohio Control Share Acquisition Law are invalid or are not applicable to
the acquisition of Shares pursuant to the Offer).
THIS OFFER DOES NOT CONSTITUTE A SOLICITATION OF PROXIES OR AGENT
DESIGNATIONS FOR ANY MEETING OF THE COMPANY'S SHAREHOLDERS. ANY SUCH
SOLICITATION WILL BE MADE ONLY PURSUANT TO PROXY OR OTHER MATERIALS COMPLYING
WITH THE REQUIREMENTS OF SECTION 14(A) OF THE EXCHANGE ACT AND THE RULES AND
REGULATIONS THEREUNDER.
Plans for the Company. In connection with the Offer, Parent and the
Purchaser have reviewed, and will continue to review, on the basis of
publicly available information, various possible business strategies that
they might consider in the event that the Purchaser acquires control of the
Company, whether pursuant to this Offer, the Proposed Merger or otherwise. If
and to the extent that the Purchaser acquires control of the Company or
otherwise obtains access to the books and records of the Company, Parent and
Purchaser intend to conduct a detailed review of the Company and its assets,
corporate structure, dividend policy, capitalization, operations, properties,
policies, management and personnel and consider and determine what, if any,
changes would be desirable in light of the circumstances which then exist.
Such strategies could include, among other things, changes in the Company's
business, corporate structure, Articles, Regulations, capitalization,
management or dividend policy.
Except as described in this Offer to Purchase, Parent and the Purchaser
have no present plans or proposals that would result in an extraordinary
corporate transaction, such as a merger, consolidation, reorganization,
liquidation or sale or transfer of a material amount of assets, involving the
Company or any of its subsidiaries, or any material changes in the Company's
present capitalization, dividend policy, employee benefit plans, corporate
structure or business or any material changes or reductions in the
16
composition of its management or personnel. Except as so described, Parent
and the Purchaser have no present plans or proposals to establish, terminate,
convert or amend employee benefit plans, close any plant or facility of the
Company or any of its subsidiaries or affiliates, change or reduce the
workforce of the Company or any of its subsidiaries or affiliates or make any
other major changes in its business or policies of employment.
The Proposed Merger. In general, under the ORC and the Company's Articles,
the Proposed Merger requires the approval of the Company's Board of Directors
and the approval by the holders of a majority of all outstanding Shares.
Accordingly, if the Purchaser acquires more than a majority of the
outstanding Shares pursuant to the Offer, the Purchaser would have the voting
power to approve the Proposed Merger without the vote of any other
shareholders and could effect the Proposed Merger by so voting and by action
of the Boards of Directors of the Purchaser and the Company (subject to the
requirements of the Ohio Business Combination Law and the Ohio Control Share
Acquisition Law described below). This will be the case if the Minimum
Condition is satisfied.
Further, the ORC provides that if the parent corporation owns 90% or more
of each class of outstanding shares of an Ohio subsidiary, the Ohio
subsidiary may be the surviving corporation of a merger with its parent
corporation upon a majority vote of each corporation's entire board of
directors, without action or vote by the shareholders of either corporation
(a "Short-Form Merger"). Accordingly, if the Purchaser owns 90% or more of
the outstanding Common Shares and 90% or more of the outstanding Preferred
Shares after consummation of the Offer, a Short-Form Merger could be effected
by action of the Boards of Directors of the Purchaser and the Company without
the approval of the Company's shareholders (subject to the requirements of
the Ohio Business Combination Law and the Ohio Control Share Acquisition Law
described below).
In order to increase the likelihood that the Board of Directors of the
Company approves the Proposed Merger (whether or not the Proposed Merger can
be effected as a Short-Form Merger), Parent and the Purchaser have taken
preliminary steps to commence a solicitation of agent designations for the
calling of the Special Meeting at which, among other things, Parent and the
Purchaser will propose that the holders of Shares remove all of the incumbent
directors of the Company and elect the nominees of the Purchaser as directors
to fill the vacancies created thereby. The nominees of the Purchaser will, if
elected at the Special Meeting, and subject to their fiduciary duties, be
committed to ensuring that the Proposed Merger is approved by the Company's
Board of Directors.
Neither Parent nor the Purchaser can give any assurance as to whether, as
a result of information hereafter obtained by either Parent or the Purchaser,
changes in general economic or market conditions or in the business of the
Company, or other presently unforeseen factors, the Proposed Merger will be
submitted to the Company's shareholders or whether the Proposed Merger will
be delayed or abandoned. Whether or not the Proposed Merger is consummated,
Parent and the Purchaser reserve the right to acquire additional Shares
following the expiration of the Offer through private purchases, market
transactions, tender or exchange offers or otherwise on terms and at prices
that may be more or less favorable than those of the Offer or, subject to any
applicable legal restrictions, to dispose of any or all Shares acquired by
Parent and the Purchaser.
Dissenters' Rights. Each shareholder of record (as of the date fixed for
determining shareholders entitled to notice of the meeting of shareholders of
the Company at which the Proposed Merger is to be submitted or, if the
Proposed Merger is not subject to a vote of shareholders, the date on which
an agreement of merger with respect to the Proposed Merger is adopted by the
Board of Directors of the Company) will have the right to receive fair cash
value for such shareholder's Shares if such shareholder objects to the
Proposed Merger and otherwise properly exercises such shareholder's
dissenters' rights and the Proposed Merger is consummated. If the statutory
procedures for exercising or perfecting dissenters' rights are complied with
in accordance with the ORC, then a judicial determination will be made as to
the fair cash value required to be paid to the objecting shareholders for
their Shares. Any such judicial determination of fair cash value would be
based on the amount that a willing seller, under no compulsion
17
to sell, would be willing to accept, and a willing buyer, under no compulsion
to purchase, would be willing to pay (excluding any appreciation or
depreciation in the market value resulting from the Proposed Merger), and the
value so determined could be more or less than the price per share to be paid
in the Offer or the Proposed Merger.
From the time written demand for payment of the fair cash value is given
until either the termination of the rights and obligations arising from such
demand or the purchase of the Shares related thereto by the Company, all
rights accruing to the objecting shareholder, including voting and dividend
or distribution rights, will be suspended. If any dividend or distribution is
paid on Shares during the suspension, an amount equal to the dividend or
distribution which would have been payable on the Shares, but for such
suspension, shall be paid to the holder of record of the Shares as a credit
against the fair cash value of the Shares. If the right to receive the fair
cash value is terminated otherwise than by the purchase of the Shares by the
Company, all rights will be restored to the objecting shareholder and any
distribution that would have been made to the holder of record of the Shares,
but for the suspension, will be made at the time of such termination.
The foregoing summary of the rights of objecting shareholders does not
purport to be a complete statement of the procedures to be followed by
shareholders desiring to exercise their dissenters' rights. The preservation
and exercise of dissenters' rights are conditioned on strict adherence to the
applicable provisions of the ORC.
"Going Private" Transactions. The Commission has adopted Rule 13e-3 under
the Exchange Act which is applicable to certain "going private" transactions
and which may under certain circumstances be applicable to the Proposed
Merger. However, Rule 13e-3 would be inapplicable if (i) the Shares are
deregistered under the Exchange Act prior to the Proposed Merger or other
business combination or (ii) the Proposed Merger or other business
combination is consummated within one year after the purchase of the Shares
pursuant to the Offer and the amount paid per Share in the Proposed Merger or
other business combination is at least equal to the amount paid per Share in
the Offer. If applicable, Rule 13e-3 requires, among other things, that
certain financial information concerning the fairness of the proposed
transaction and the consideration offered to minority shareholders in such
transaction be filed with the Commission and disclosed to shareholders prior
to the consummation of the transaction.
SECTION 13. DIVIDENDS AND DISTRIBUTIONS
If, on or after the Applicable Date (March 5, 1996), the Company should
(a) split, combine or otherwise change the Shares or its capitalization, (b)
acquire or otherwise cause a reduction in the number of outstanding Shares or
other securities or (c) issue or sell additional Shares (other than the
issuance of Shares under option prior to the Applicable Date, in accordance
with the terms of such options as publicly disclosed prior to the Applicable
Date), shares of any other class of capital stock, other voting securities or
any securities convertible into, or rights, warrants or options, conditional
or otherwise, to acquire, any of the foregoing, then, subject to the
provisions of Section 14, the Purchaser, in its sole discretion, may make
such adjustments as it deems appropriate in the Offer Price and other terms
of the Offer, including, without limitation, the number or type of securities
offered to be purchased.
If, on or after the Applicable Date, the Company should declare or pay any
cash dividend on the Shares (other than regular quarterly cash dividends in
an amount not to exceed $0.13 per Common Share and $0.45 per Preferred Share)
or other distribution on the Shares, or issue with respect to the Shares any
additional Shares, shares of any other class of capital stock, other voting
securities or any securities convertible into, or rights, warrants or
options, conditional or otherwise, to acquire, any of the foregoing, payable
or distributable to shareholders of record on a date prior to the transfer of
the Shares purchased pursuant to the Offer to the Purchaser or its nominee or
transferee on the Company's stock transfer records, then, subject to the
provisions of Section 14, (a) the Offer Price may, in the sole discretion of
the Purchaser, be reduced by the amount of any such cash dividend or cash
distribution and (b) the whole of any such noncash dividend, distribution or
issuance to be received by the tendering shareholders will (i) be received
and held by the tendering shareholders for the account of the Purchaser and
will be required to be promptly remitted and transferred by each tendering
shareholder to the Depositary for the account of the Purchaser, accompanied
by appropriate documentation of transfer, or (ii) at the direction of the
18
Purchaser, be exercised for the benefit of the Purchaser, in which case the
proceeds of such exercise will promptly be remitted to the Purchaser. Pending
such remittance and subject to applicable law, the Purchaser will be entitled
to all rights and privileges as owner of any such noncash dividend,
distribution, issuance or proceeds and may withhold the entire Offer Price or
deduct from the Offer Price the amount or value thereof, as determined by the
Purchaser in its sole discretion.
SECTION 14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term or provision of the Offer, 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 a bidder's obligation to pay for or return tendered
securities promptly after the termination or withdrawal of such bidder's
offer), to pay for any Shares not theretofore accepted for payment or paid
for, and may terminate the Offer, unless (1) the Minimum Condition shall have
been satisfied, (2) the Control Share Condition shall have been satisfied,
(3) the Business Combination Condition shall have been satisfied and (4) any
waiting period under the HSR Act applicable to the purchase of Shares
pursuant to the Offer shall have expired or been terminated. Furthermore,
notwithstanding any other term or provision of the Offer, the Purchaser will
not be required to accept for payment or, subject as aforesaid, to pay for
any Shares not theretofore accepted for payment or paid for, and may
terminate or amend the Offer if, at any time on or after the Applicable Date
(March 5, 1996), and before the acceptance of such Shares for payment or,
subject to any applicable rules and regulations of the Commission, the
payment therefor, any of the following events or facts shall have occurred:
(a) there shall be threatened, instituted or pending any action,
proceeding, application or counterclaim by any government or governmental,
regulatory or administrative authority or agency, domestic, foreign or
supranational (each, a "Governmental Entity"), or by any other person,
before any court or Governmental Entity, (i)(A) challenging or seeking to,
or which is reasonably likely to, make illegal, delay or otherwise
directly or indirectly restrain or prohibit, or seeking to, or which is
reasonably likely to, impose voting, procedural, price or other
requirements, in addition to those required by Federal securities laws and
the ORC, in connection with, the making of the Offer, the acceptance for
payment of, or payment for, some of or all the Shares by the Purchaser,
Parent or any other affiliate of Parent or the consummation by the
Purchaser, Parent or any other affiliate of Parent of a merger or other
similar business combination with the Company, (B) seeking to obtain, or
which is reasonably likely to result in, material damages or (C) otherwise
directly or indirectly relating to the transactions contemplated by the
Offer or any such merger or business combination, (ii) seeking to, or
which is reasonably likely to, prohibit the ownership or operation by the
Purchaser, Parent or any other affiliate of Parent of all or any portion
of the business or assets of the Company and its subsidiaries or of the
Purchaser, Parent or any other affiliate of Parent or to compel the
Purchaser, Parent or any other affiliate of Parent to dispose of or hold
separate all or any portion of the business or assets of the Company or
any of its subsidiaries or of the Purchaser, Parent or any other affiliate
of Parent or seeking to impose, or which is reasonably likely to result
in, any limitation on the ability of the Purchaser, Parent or any other
affiliate of Parent to conduct such business or own such assets, (iii)
seeking to, or which is reasonably likely to, impose limitations on the
ability of the Purchaser, Parent or any other affiliate of Parent
effectively to exercise full rights of ownership of the Shares, including,
without limitation, the right to vote any Shares acquired or owned by the
Purchaser, Parent or any other affiliate of Parent on all matters properly
presented to the Company's shareholders, (iv) seeking to, or which is
reasonably likely to, require divestiture by the Purchaser, Parent or any
other affiliate of Parent of any Shares, (v) seeking, or which is
reasonably likely to result in, any material diminution in the benefits
expected to be derived by the Purchaser, Parent or any other affiliate of
Parent as a result of the transactions contemplated by the Offer or any
merger or other similar business combination with the Company, (vi)
otherwise directly or indirectly relating to the Offer or which otherwise,
in the sole judgment of the Purchaser, might materially adversely affect
the Company or any of its subsidiaries or the Purchaser, Parent or any
other affiliate of Parent or the value of the Shares or (vii) in the sole
judgment of the Purchaser, materially adversely affecting the business,
properties, assets, liabilities, capitalization, shareholders' equity,
condition (financial or otherwise), operations, licenses or franchises,
results of operations or prospects of the Company or any of its
subsidiaries;
19
(b) there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed,
enacted, enforced, promulgated, amended, issued or deemed applicable to
(i) the Purchaser, Parent or any other affiliate of Parent or the Company
or any of its subsidiaries or (ii) the Offer or any merger or other
similar business combination by the Purchaser, Parent or any other
affiliate of Parent with the Company, by any government, legislative body
or court, domestic, foreign or supranational, or Governmental Entity,
other than the routine application of the waiting period provisions of the
HSR Act to the Offer, that, in the sole judgment of the Purchaser, might,
directly or indirectly, result in any of the consequences referred to in
clauses (i) through (vii) of paragraph (a) above;
(c) any change (or any condition, event or development involving a
prospective change) shall have occurred or been threatened in the
business, properties, assets, liabilities, capitalization, shareholders'
equity, condition (financial or otherwise), operations, licenses or
franchises, results of operations or prospects of the Company or any of
its subsidiaries that, in the sole judgment of the Purchaser, is or may be
materially adverse to the Company or any of its subsidiaries, or the
Purchaser shall have become aware of any facts that, in the sole judgment
of the Purchaser, have or may have material adverse significance with
respect to either the value of the Company or any of its subsidiaries or
the value of the Shares to the Purchaser, Parent or any other affiliate of
Parent;
(d) there shall have occurred or been threatened (i) any general
suspension of trading in, or limitation on prices for, securities on any
national securities exchange or in the over-the-counter market in the
United States, (ii) any extraordinary or material adverse change in the
financial markets or major stock exchange indices in the United States or
abroad or in the market price of Shares, (iii) any change in the general
political, market, economic or financial conditions in the United States
or abroad that could, in the sole judgment of the Purchaser, have a
material adverse effect upon the business, properties, assets,
liabilities, capitalization, shareholders' equity, condition (financial or
otherwise), operations, licenses or franchises, results of operations or
prospects of the Company or any of its subsidiaries or the trading in, or
value of, the Shares, (iv) any material change in United States currency
exchange rates or any other currency exchange rates or a suspension of, or
limitation on, the markets therefor, (v) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States, (vi) any limitation (whether or not mandatory) by any government,
domestic, foreign or supranational, or Governmental Entity on, or other
event that, in the sole judgment of the Purchaser, might affect, the
extension of credit by banks or other lending institutions, (vii) a
commencement of a war or armed hostilities or other national or
international calamity directly or indirectly involving the United States
or (viii) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(e) the Company or any of its subsidiaries shall have (i) split,
combined or otherwise changed, or authorized or proposed a split,
combination or other change of, the Shares or its capitalization, (ii)
acquired or otherwise caused a reduction in the number of, or authorized
or proposed the acquisition or other reduction in the number of,
outstanding Shares or other securities, (iii) issued or sold, or
authorized or proposed the issuance, distribution or sale of, additional
Shares (other than the issuance of Shares under option prior to the
Applicable Date in accordance with the terms of such options as publicly
disclosed prior to the Applicable Date), shares of any other class of
capital stock, other voting securities or any securities convertible into,
or rights, warrants or options, conditional or otherwise, to acquire, any
of the foregoing, (iv) declared or paid, or proposed to declare or pay,
any dividend (other than regular quarterly cash dividends not to exceed
$0.13 per Common Share and $0.45 per Preferred Share) or other
distribution, whether payable in cash, securities or other property, on or
with respect to any shares of capital stock of the Company, (v) altered or
proposed to alter any material term of any outstanding security, (vi)
incurred any debt other than in the ordinary course of business or any
debt containing burdensome covenants, (vii) authorized, recommended,
proposed or entered into an agreement with respect to any merger,
consolidation, liquidation, dissolution, business combination, acquisition
of assets, disposition of assets, release or relinquishment of any
material contractual or other right of the Company or any of its
subsidiaries or any comparable event not in the ordinary course of
business, (viii) authorized, recommended,
20
proposed or entered into, or announced its intention to authorize,
recommend, propose or enter into, any agreement or arrangement with any
person or group that in the sole judgment of the Purchaser could adversely
affect either the value of the Company or any of its subsidiaries or the
value of the Shares to the Purchaser, Parent or any other affiliate of
Parent, (ix) entered into any employment, severance or similar agreement,
arrangement or plan with or for the benefit of any of its employees other
than in the ordinary course of business or entered into or amended any
agreements, arrangements or plans so as to provide for increased or
accelerated benefits to the employees as a result of or in connection with
the transactions contemplated by the Offer, (x) except as may be required
by law, taken any action to terminate or amend any employee benefit plan
(as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended) of the Company or any of its subsidiaries, or the
Purchaser shall have become aware of any such action that was not
disclosed in publicly available filings prior to the Applicable Date, (xi)
amended, or authorized or proposed any amendment to, its articles of
incorporation or its regulations (other than an amendment to make the Ohio
Control Share Acquisition Law inapplicable), or the Purchaser shall become
aware that the Company or any of its subsidiaries shall have proposed or
adopted any such amendment that was not disclosed in publicly available
filings prior to the Applicable Date or (xii) otherwise acted out of the
ordinary course of business, consistent with past practice;
(f) a tender or exchange offer for any Shares shall have been made or
publicly proposed to be made by any other person (including the Company or
any of its subsidiaries or affiliates), or it shall have been publicly
disclosed or the Purchaser shall have otherwise learned that (i) any
person, entity (including the Company or any of its subsidiaries) or
"group" (within the meaning of Section 13(d)(3) of the Exchange Act) shall
have acquired or proposed to acquire beneficial ownership of more than 5%
of any class or series of capital stock of the Company (including the
Shares), through the acquisition of stock, the formation of a group or
otherwise, or shall have been granted any right, option or warrant,
conditional or otherwise, to acquire beneficial ownership of more than 5%
of any class or series of capital stock of the Company (including the
Shares), other than acquisitions for bona fide arbitrage purposes only and
other than as disclosed in a Schedule 13G on file with the Commission
prior to the Applicable Date, (ii) any such person, entity or group that
prior to the Applicable Date, had filed such a Schedule with the
Commission has acquired or proposes to acquire, through the acquisition of
stock, the formation of a group or otherwise, beneficial ownership of 1%
or more of any class or series of capital stock of the Company (including
the Shares), or shall have been granted any right, option or warrant,
conditional or otherwise, to acquire beneficial ownership of 1% or more of
any class or series of capital stock of the Company (including the
Shares), (iii) any person or group shall have entered into a definitive
agreement or an agreement in principle or made a proposal with respect to
a tender offer or exchange offer or a merger, consolidation or other
business combination with or involving the Company or (iv) any person
shall have filed a Notification and Report Form under the HSR Act (or
amended a prior filing to increase the applicable filing threshold set
forth therein) or made a public announcement reflecting an intent to
acquire the Company or any assets or subsidiaries of the Company;
(g) the Purchaser shall become aware (i) that any contractual right of
the Company or any of its subsidiaries shall be impaired or otherwise
adversely affected or that any amount of indebtedness of the Company or
any of its subsidiaries shall become accelerated or otherwise become due
or become subject to acceleration prior to its stated due date, in any
case with or without notice or the lapse of time or both as a result of or
in connection with the transactions contemplated by the Offer or the
Proposed Merger or any other business combination involving the Company,
which, in the aggregate, would be material, (ii) of any covenant, term or
condition in any of the Company's or any of its subsidiaries' instruments
or agreements that has or may have, in the aggregate, a material adverse
effect on (x) the business, properties, assets, liabilities,
capitalization, shareholders' equity, condition (financial or otherwise),
operations, management, key personnel, licenses, franchises, results of
operations or prospects of the Company or any of its subsidiaries
(including, but not limited to, any event of default that may result from
the consummation of the Offer, the acquisition of control of the Company
or any of its subsidiaries or the Proposed Merger or any other business
combination involving the Company) or (y) the value of the Shares in the
hands of Parent, the Purchaser or any
21
of their respective affiliates or (z) the consummation by Parent, the
Purchaser or any of their respective affiliates of the Offer and the
Proposed Merger or any other business combination involving the Company or
(iii) that any report, document or instrument of the Company or any of its
subsidiaries filed with the Commission contained, when filed, an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading or that the Company or any of its subsidiaries shall have
failed to file any such report, document or instrument;
(h) any approval, permit, authorization, favorable review or consent
of any Governmental Entity (including those described or referred to in
Section 15) shall not have been obtained on terms satisfactory to
Purchaser in its sole discretion; or
(i) the Purchaser shall have reached an agreement or understanding
with the Company providing for termination of the Offer, or the Purchaser,
Parent or any other affiliate of Parent shall have entered into a
definitive agreement or announced an agreement in principle with the
Company providing for a merger or other business combination with the
Company or the purchase of stock or assets of the Company;
which, in the sole judgment of the Purchaser in any such case, and regardless of
the circumstances (including any action or inaction by the Purchaser, Parent or
any other affiliate of Parent) giving rise to any such condition, makes it
inadvisable to proceed with the Offer or 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 regardless of the circumstances
giving rise to any such condition or may be waived by the Purchaser in whole
or in part at any time and from time to time in its sole discretion. The
failure by the Purchaser at any time to exercise any of the foregoing rights
will not be deemed a waiver of any such right, the waiver of any such right
with respect to particular facts and circumstances will not be deemed a
waiver with respect to any other facts and circumstances and each such right
will be deemed an ongoing right that may be asserted at any time and from
time to time. Any determination by the Purchaser concerning the events
described in this Section 14 will be final and binding upon all parties.
SECTION 15. CERTAIN LEGAL MATTERS
General. Except as otherwise disclosed herein, based on a review of
publicly available information filed by the Company with the Commission,
neither the Purchaser nor Parent is aware of (i) 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
acquisition of Shares by the Purchaser pursuant to the Offer or the Proposed
Merger or (ii) any approval or other action, by any governmental,
administrative or regulatory agency or authority, domestic, foreign or
supranational, that would be required for the acquisition or ownership of
Shares by the Purchaser as contemplated herein. Should any such approval or
other action be required, the Purchaser currently contemplates that such
approval or action would be sought. While the Purchaser does not currently
intend to delay the acceptance for payment of Shares tendered pursuant to the
Offer pending the outcome of any such matter, there can be no assurance that
any such approval or action, if needed, would be obtained or would be
obtained without substantial conditions or that adverse consequences might
not result to the business of the Company, the Purchaser or Parent or that
certain parts of the businesses of the Company, the Purchaser or Parent might
not have to be disposed of in the event that such approvals were not obtained
or any other actions were not taken. The Purchaser's obligation under the
Offer to accept for payment and pay for Shares is subject to certain
conditions. See Section 14.
Antitrust. Under the HSR Act, and the rules and regulations that have been
promulgated thereunder by the Federal Trade Commission (the "FTC"), certain
acquisition transactions may not be consummated unless certain information
has been furnished to the Antitrust Division of the Department of Justice
(the "Antitrust Division") and the FTC and certain waiting period
requirements have been satisfied. Parent filed a Notification and Report Form
with respect to the Offer and the Proposed Merger on March 7, 1996.
22
Under the provisions of the HSR Act applicable to the Offer, the purchase
of Shares under the Offer may not be consummated until the expiration of a
15-calendar day waiting period following the filing by Parent. Accordingly,
the waiting period with respect to the Offer will expire at 11:59 p.m., New
York City time, on March 22, 1996 unless Xxxxxx receives a request for
additional information or documentary material, or the Antitrust Division and
the FTC terminate the waiting period prior thereto. If, within such 15-day
period, either the Antitrust Division or the FTC requests additional
information or material from Parent concerning the Offer, the waiting period
will be extended and would expire at 11:59 p.m., New York City time, on the
tenth calendar day after the date of substantial compliance by Parent with
such request. Only one extension of the waiting period pursuant to a request
for additional information is authorized by the HSR Act. Thereafter, such
waiting period may be extended only by court order or with the consent of
Parent. The Purchaser will not accept for payment Shares tendered pursuant to
the Offer unless and until the waiting period requirements imposed by the HSR
Act with respect to the Offer have been satisfied. See Section 14.
The FTC and the Antitrust Division frequently scrutinize the legality
under the antitrust laws of transactions such as the Purchaser's acquisition
of Shares pursuant to the Offer and the Proposed Merger. At any time before
or after the Purchaser's acquisition of Shares, the Antitrust Division or the
FTC could take such action under the antitrust laws as it deems necessary or
desirable in the public interest, including seeking to enjoin the acquisition
of Shares pursuant to the Offer or otherwise or seeking divestiture of Shares
acquired by the Purchaser or divestiture of substantial assets of Parent or
its subsidiaries. Private parties and state attorneys general may also bring
action under the antitrust laws under certain circumstances. Based upon an
examination of publicly available information relating to the businesses in
which Parent and the Company are engaged, Parent and the Purchaser believe
that the acquisition of Shares by the Purchaser will not violate the
antitrust laws. Nevertheless, there can be no assurance that a challenge to
the Offer or other acquisition of Shares by the Purchaser on antitrust
grounds will not be made or, if such a challenge is made, of the result. See
Section 14 for certain conditions to the Offer, including conditions with
respect to litigation and certain governmental actions.
Ohio Business Combination Law. The Ohio Business Combination Law provides
that an issuing public corporation shall not engage in certain business
combinations (including mergers) with an "Interested Shareholder" (generally,
a person entitled to control 10% or more of the outstanding voting shares of
the issuing public corporation in the election of directors) for a period of
three years following the date such person became an Interested Shareholder
(the "three year period"). This restriction does not apply if prior to the
date such person became an Interested Shareholder, the board of directors of
the issuing public corporation approved either the business combination or
the transaction which resulted in the Interested Shareholder becoming an
Interested Shareholder. The Ohio Business Combination Law further provides
that after the expiration of the three year period, an issuing public
corporation may not engage in a business combination (including a merger)
unless either: (i) the business combination is approved by both (x) the
holders of at least a majority of all Shares and (y) the holders of at least
a majority of the disinterested Shares or (ii) the consideration used in such
business combination, both in price and form, meets certain tests to insure
that such consideration is at least equal to each of (x) the amount paid, or
to be received, by the Interested Shareholder, (y) the fair market value on
the date a person becomes an Interested Shareholder and (z) the fair market
value on the announcement date of the business combination.
Parent and the Purchaser are requesting that the Company's Board of
Directors take appropriate action so that the Ohio Business Combination Law
is not applicable to the acquisition of Shares pursuant to the Offer or the
Proposed Merger. In order to increase the likelihood that the Board of
Directors will take such action, Parent and the Purchaser have taken
preliminary steps to commence a solicitation of agent designations for the
calling of the Special Meeting at which, among other things, Parent and the
Purchaser will propose that the holders of Shares remove all of the incumbent
directors of the Company and elect the nominees of the Purchaser as directors
to fill the vacancies created thereby. The nominees of the Purchaser will, if
elected at the Special Meeting, and subject to their fiduciary duties, be
committed to ensuring that the Ohio Business Combination Law is not
applicable to the acquisition of Shares pursuant to the Offer and the
Proposed Merger.
23
THE OFFER IS CONDITIONED UPON THE SATISFACTION OF THE BUSINESS COMBINATION
CONDITION. THE PURCHASER CURRENTLY CONTEMPLATES THAT SHARES WILL NOT BE
ACCEPTED FOR PAYMENT PURSUANT TO THE OFFER UNTIL THE BOARD OF DIRECTORS OF
THE COMPANY HAS TAKEN APPROPRIATE ACTION SO THAT THE RESTRICTIONS CONTAINED
IN THE OHIO BUSINESS COMBINATION LAW IS NOT APPLICABLE TO THE ACQUISITION OF
SHARES PURSUANT TO THE OFFER OR THE PROPOSED MERGER, UNLESS THE PURCHASER, IN
ITS SOLE DISCRETION, IS SATISFIED THAT AFTER CONSUMMATION OF THE OFFER THE
RESTRICTIONS CONTAINED IN THE OHIO BUSINESS COMBINATION LAW WILL NOT APPLY TO
THE PROPOSED MERGER.
The Ohio Control Share Acquisition Law. The Ohio Control Share Acquisition
Law provides that unless the articles of incorporation or the regulations of
an issuing public corporation provide otherwise, any control share
acquisition of such corporation shall be made only with the prior
authorization of the shareholders. An "issuing public corporation" is a
corporation organized for profit under the laws of Ohio, with 50 or more
shareholders, that has its principal place of business, principal executive
offices or substantial assets in Ohio, and as to which there is no close
corporation agreement in existence. The Company is an issuing public
corporation, as so defined.
A "control share acquisition" means the acquisition, directly or
indirectly, by any person of shares of an issuing public corporation that,
when added to all other shares of the issuing public corporation in respect
of which such person may exercise or direct the exercise of voting power,
would entitle such person, immediately after such acquisition, directly or
indirectly, alone or with others, to control any of the following ranges of
the voting power of such issuing public corporation in the election of
directors: (a) one-fifth or more but less than one-third of such voting
power; (b) one-third or more but less than a majority of such voting power;
or (c) a majority or more of such voting power. An acquisition of shares of
an issuing public corporation, however, does not constitute a control share
acquisition if, among other things, the acquisition is consummated pursuant
to a merger or consolidation effected in compliance with Sections 1701.78 or
1701.83 of the ORC if the issuing public corporation is the surviving or new
corporation in the merger or consolidation or is the acquiring corporation in
the combination or majority share acquisition.
Any person who proposes to make a control share acquisition must deliver
an "acquiring person statement" to the issuing public corporation, which
statement shall include: (a) the identity of the acquiring person, (b) a
statement that the acquiring person statement is being delivered pursuant to
the Ohio Control Share Acquisition Law, (c) the number of shares of the
issuing public corporation owned, directly or indirectly, by such acquiring
person, (d) the range of voting power in the election of directors under
which the proposed acquisition would, if consummated, fall (i.e., in excess
of 20%, 33-1/3% or 50%), (e) a description of the terms of the proposed
acquisition and (f) representations of the acquiring person that the
acquisition will not be contrary to the law and that such acquiring person
has the financial capacity to make the proposed acquisition (including the
facts upon which such representations are based).
Within ten days of receipt of a qualifying acquiring person statement, the
directors of the issuing public corporation must call a special shareholders
meeting to vote on the proposed acquisition. Unless the acquiring person
otherwise agrees, the meeting must be held within 50 days of receipt of such
statement. However, the acquiring person may, and Xxxxxx and the Purchaser
did, request, at the time of delivery of the acquiring person statement, that
the meeting not be held sooner than 30 days after the receipt of such
statement. The special meeting cannot be held later than certain other
special meetings of shareholders called by the corporation in compliance with
the ORC after receipt of a qualifying acquiring person statement.
The issuing public corporation is required to send a notice of the special
meeting as promptly as reasonably practicable to all shareholders of record
as of the record date set for such meeting, together with a copy of the
acquiring person statement and a statement of the issuing public corporation,
authorized by its directors, of its position or recommendation, or that it is
taking no position, with respect to the proposed control share acquisition.
The acquiring person may make the proposed control share acquisition only
if (a) at a meeting at which a quorum is present, a majority of the voting
power entitled to vote in the election of directors
24
represented (in person or by proxy) at such meeting and a majority of such
voting power excluding "Interested Shares," authorize the control share
acquisition and (b) such acquisition is consummated, in accordance with the
terms so authorized, within 360 days following such authorization.
"Interested Shares" means shares as to which any of the following may
exercise or direct the exercise of voting power in the election of directors:
(i) an acquiring person, (ii) an officer elected or appointed by the
directors of the issuing public corporation or (iii) any employee of the
issuing public corporation who is also a director of such corporation.
"Interested Shares" also means shares of the issuing public corporation
acquired, directly or indirectly, by any person or group for valuable
consideration during the period beginning with the date of the first public
disclosure of a proposed control share acquisition of the issuing public
corporation or any proposed merger, consolidation or other transaction which
would result in a change in control of the corporation or all or
substantially all of its assets, and ending on the date of any special
meeting of the corporation's shareholders held thereafter pursuant to the
Ohio Control Share Acquisition Law for the purpose of voting on a control
share acquisition proposed by an acquiring person, if either of the following
apply: (i) the aggregate consideration paid or otherwise given by the person
who acquired the shares, and any other persons acting in concert with it, for
all shares exceeds $250,000 or (ii) the number of shares acquired by the
person who acquired the shares, and any other persons acting in concert with
it, exceeds 1/2 of 1% of the outstanding shares of the corporation entitled
to vote in the election of directors (the Interested Xxxxxx described in this
sentence are referred to herein as "Disqualified Shares"). See "Litigation"
below.
Dissenters' rights are not available to shareholders of an issuing public
corporation in connection with the authorization of a control share
acquisition.
Without waiving their right to challenge the validity of all or any part
of the Ohio Control Share Acquisition Law or to seek an amendment to the
Company's Regulations opting out of the Ohio Control Share Acquisition Law,
and reserving their right to take actions inconsistent with the applicability
of the Ohio Control Share Acquisition Law, Parent and the Purchaser delivered
to the Company on March 7, 1996 an acquiring person statement relating to the
Offer. Pursuant to the Ohio Control Share Acquisition Law, Parent and the
Purchaser have requested that the Ohio Control Share Acquisition Meeting not
be held for at least 30 days after receipt of the acquiring person statement.
Accordingly, the Ohio Control Share Acquisition Meeting must be held no
earlier than April 6, 1996 and no later than April 26, 1996.
THE OFFER IS CONDITIONED UPON THE SATISFACTION OF THE CONTROL SHARE
CONDITION. THE PURCHASER CURRENTLY CONTEMPLATES THAT SHARES WILL NOT BE
ACCEPTED FOR PAYMENT PURSUANT TO THE OFFER UNTIL THE ACQUISITION BY THE
PURCHASER OF SHARES PURSUANT TO THE OFFER IS AUTHORIZED BY THE SHAREHOLDERS
OF THE COMPANY AT THE OHIO CONTROL SHARE ACQUISITION MEETING, UNLESS THE
PURCHASER, IN ITS SOLE DISCRETION, IS SATISFIED THAT THE PROVISIONS OF THE
OHIO CONTROL SHARE ACQUISITION LAW ARE INVALID OR INAPPLICABLE TO SUCH
ACQUISITION. SEE SECTION 14.
Ohio Take-Over Act. Sections 1707.041, 1707.042, 1707.23 and 1707.26 of
the ORC (collectively, the "Ohio Take-Over Act") regulate tender offers. The
Ohio Take-Over Act applies to the purchase of or offer to purchase any equity
security of a subject company from a resident of Ohio if, after the purchase,
the offeror would directly or indirectly be the beneficial owner of more than
10% of any class of issued and outstanding equity securities of the Company
(a "control bid"). A subject company includes an issuer, such as the Company,
that either has its principal place of business or principal executive
offices located in Ohio or owns or controls assets located in Ohio that have
a fair market value of at least one million dollars, and that has more than
one thousand beneficial or record equity security holders who reside in Ohio.
A subject company, however, need not be incorporated in Ohio. Notwithstanding
the definition of subject company contained in the Ohio Take-Over Act, the
Ohio Division of Securities (the "Ohio Division"), by rule or an adjudicatory
proceeding, may make a determination that an issuer does not constitute a
subject company if appropriate review of control bids involving the issuer is
to be made by any regulatory authority of another jurisdiction. The Ohio
Division has not adopted any rules under this provision.
The Ohio Take-Over Act prohibits an offeror from making a control bid for
securities of a subject company pursuant to a tender offer until the offeror
has filed specified information with the Ohio
25
Division. In addition, the offeror is required to deliver a copy of such
information to the subject company not later than the offeror's filing with
the Ohio Division and to send or deliver such information and the material
terms of the proposed offer to all offerees in Ohio as soon as practicable
after the offeror's filing with the Ohio Division.
Within three calendar days of such filing, the Ohio Division may by order
summarily suspend the continuation of the control bid if it determines that
the offeror has not provided all of the specified information or that the
control bid materials provided to offerees do not provide full disclosure of
all material information concerning the control bid. If the Ohio Division
summarily suspends a control bid, it must schedule and hold a hearing within
ten calendar days of the date on which the suspension is imposed and must
make its determination within three calendar days after the hearing has been
completed but no later than sixteen calendar days after the date on which the
suspension is imposed. The Ohio Division may maintain its suspension of the
continuation of the control bid if, based upon the hearing, it determines
that all of the information required to be provided by the Ohio Take-Over Act
has not been provided by the offeror, that the control bid materials provided
to offerees do not provide full disclosure of all material information
concerning the control bid, or that the control bid is in material violation
of any provision of the Ohio securities laws. If, after the hearing, the Ohio
Division maintains the suspension, the offeror has the right to correct the
disclosure and other deficiencies identified by the Ohio Division and to
reinstitute the control bid by filing new or amended information pursuant to
the Ohio Take-Over Act.
Litigation.
On March 7, 1996, Parent and the Purchaser commenced an action in the Ohio
Federal District Court against the Company, the Commissioner of Securities of
the Ohio Division of Securities and the Director of Commerce of the Ohio
Department of Commerce (the "Defendants") seeking, among other things, that the
Court declare unconstitutional and enjoin application of certain provisions of
the Ohio Control Share Acquisition Law (a) to the extent they are sought to be
applied to impair the voting rights of the Disqualified Shares, as such
provisions may be applied to the Offer and (b) to the extent they prohibit the
purchase or sale of shares in interstate commerce. In March, 1995, in Luxottica
Group S.p.A. v. The United States Shoe Corporation, the United States District
Court for the Southern District of Ohio, Eastern Division issued an order
declaring invalid the provisions described in (a), above, as they applied to
Luxottica's tender offer for shares of United States Shoe Corporation. Parent
and the Purchaser believe that such ruling should also be applicable to the
Offer.
The complaint seeks a declaration that certain provisions of the Ohio
Takeover Act are unconstitutional as applied to the Offer, and temporary,
preliminary and permanent injunctive relief against its enforcement.
Nevertheless, without prejudice to its position that the Ohio Take-Over Act
is unconstitutional or conceding its applicability, on March 7, 1996, Parent
and the Purchaser submitted Form 041 under the Ohio Take-Over Act, including
a copy of the Schedule 14D-1 relating to the Offer, to the Ohio Division. If
injunctive relief is not obtained against the enforcement of the Ohio
Take-Over Act and the Ohio Division takes action under the Ohio Take-Over
Act, then the Purchaser may not be obligated to accept for payment or pay for
Shares tendered pursuant to the Offer or may, among other things, terminate
the Offer or amend the terms and conditions of the Offer. See Section 14.
The complaint also seeks a declaration that Plaintiffs are in full compliance
with all federal laws and regulations governing tender offers and that
26
Defendants are prohibited from taking any action to impede the Offer. The
complaint seeks, inter alia, temporary, preliminary and permanent injunctive
relief.
Other State Laws. A number of other states have adopted laws and
regulations applicable to attempts to acquire securities of corporations
which are incorporated, or have substantial assets, shareholders, principal
executive offices or principal places of business, or whose business
operations otherwise have substantial economic effects, in such states. In
1982, in Xxxxx x. MITE Corp., the Supreme Court of the United States
invalidated on constitutional grounds the Illinois Business Takeover Statute,
which, as a matter of state securities law, made takeovers of corporations
meeting certain requirements more difficult. However, in 1987 in CTS Corp. v.
Dynamics Corp. of America, the Supreme Court held that the Indiana Control
Share Acquisition Act was constitutional. Such Act, by its terms, is
applicable only to corporations that have a substantial number of
shareholders in Indiana and are incorporated there. Subsequently, a number of
Federal courts ruled that various state takeover statutes were
unconstitutional insofar as they apply to corporations incorporated outside
the state of enactment.
The Company, directly or through subsidiaries, conducts business in a
number of states throughout the United States, some of which have enacted
takeover laws. The Purchaser does not know whether any of these laws will, by
their terms, apply to the Offer and has not complied with any such laws.
Should any person seek to apply any state takeover law, the Purchaser will
take such action as then appears desirable, which may include challenging the
validity or applicability of any such statute in appropriate court
proceedings. In the event it is asserted that one or more state takeover laws
is applicable to the Offer and the Merger, and an appropriate court does not
determine that it is inapplicable or invalid as applied to the Offer, the
Purchaser might be required to file certain information with, or receive
approvals from, the relevant state authorities. In addition, if enjoined, the
Purchaser might be unable to accept for payment any Shares tendered pursuant
to the Offer, or be delayed in continuing or consummating the Offer. In such
case, the Purchaser may not be obligated to accept for payment any Shares
tendered. See Section 14.
Foreign Approvals. According to the Company 10-K, the Company owns
property in a number of other foreign countries and jurisdictions. In
connection with the acquisition of the Shares pursuant to the Offer, the laws
of certain of those foreign countries and jurisdictions may require the
filing of information with, or the obtaining of the approval of, governmental
authorities in such countries and jurisdictions. The governments in such
countries and jurisdictions might attempt to impose additional conditions on
the Company's operations conducted in such countries and jurisdictions as a
result of the acquisition of the Shares pursuant to the Offer or the Proposed
Merger. There can be no assurance that the Purchaser will be able to cause
the Company or its subsidiaries to satisfy or comply with such laws or that
compliance or non-compliance will not have adverse consequences for the
Company or any subsidiary after purchase of the Shares pursuant to the Offer
or the Proposed Merger.
SECTION 16. FEES AND EXPENSES
Xxxxxxx Xxxxx is acting as Dealer Manager in connection with the Offer and
serving as financial advisor to the Purchaser and Parent in connection with
the Proposed Merger. As compensation for such services, Parent has agreed to
pay Xxxxxxx Xxxxx a fee of $500,000, of which $400,000 is payable upon
commencement of the Offer. Parent has also agreed to pay Xxxxxxx Xxxxx a fee
of up to $2,000,000 (less any fees theretofore paid) contingent upon
consummation of an Acquisition Transaction. "Acquisition Transaction" has
been defined to include (i) any merger, consolidation, reorganization or
other business combination pursuant to which the business of the Company is
combined with that of Parent or one of its affiliates, (ii) the acquisition,
directly or indirectly, by Parent or one of its affiliates by tender or
exchange offer, negotiated purchase or other means of at least 50% of the
then outstanding capital stock of the Company, (iii) the acquisition,
directly or indirectly, by Parent or one of its affiliates of at least 50% of
the assets of, or of any right to all or a substantial portion of the
revenues or income of the Company or (iv) the acquisition, directly or
indirectly, by Parent or one of its affiliates of control of the Company
through a proxy contest or otherwise than through the acquisition of the
Company's voting capital stock. In addition, Xxxxxx has agreed to reimburse
Xxxxxxx Xxxxx for its reasonable out-of-pocket expenses, including, without
limitation, reasonable fees and disbursements of its counsel, incurred in
connection with the Offer and the Proposed Merger or otherwise arising out of
Xxxxxxx Xxxxx'x engagement, and has
27
also agreed to indemnify Xxxxxxx Xxxxx (and certain affiliated persons)
against certain liabilities and expenses, including, without limitation,
certain liabilities under the federal securities laws. Xxxxxxx Xxxxx may from
time to time in the future render various investment banking services to
Parent and its affiliates, for which it is expected it would be paid
customary fees.
X.X. Xxxx & Co., Inc. has been retained by the Purchaser as Information
Agent in connection with the Offer. The Information Agent may contact holders
of Shares by mail, telephone, telex, telegraph and personal interview and may
request brokers, dealers and other nominee shareholders to forward material
relating to the Offer to beneficial owners of Shares. The Purchaser will pay
the Information Agent reasonable and customary compensation for all such
services in addition to reimbursing the Information Agent for reasonable
out-of-pocket expenses in connection therewith. The Purchaser has agreed to
indemnify the Information Agent against certain liabilities and expenses in
connection with the Offer, including, without limitation, certain liabilities
under the federal securities laws.
First Chicago Trust Company of New York has been retained as the
Depositary. The Purchaser will pay the Depositary reasonable and customary
compensation for its services in connection with the Offer, will reimburse
the Depositary for its reasonable out-of-pocket expenses in connection
therewith and will indemnify the Depositary against certain liabilities and
expenses in connection therewith, including, without limitation, certain
liabilities under the federal securities laws.
Except as set forth above, neither Parent nor the Purchaser will pay any
fees or commissions to any broker, dealer or other person for soliciting
tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks
and trust companies and other nominees will, upon request, be reimbursed by
Parent or the Purchaser for customary clerical and mailing expenses incurred
by them in forwarding offering materials to their customers.
SECTION 17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other 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 such holders of Shares prior to the expiration of the Offer. In any
jurisdiction the securities, blue sky or other laws of which 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.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR PARENT NOT CONTAINED HEREIN OR
IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THE PURCHASER AND PARENT HAVE FILED WITH THE COMMISSION A TENDER OFFER
STATEMENT ON SCHEDULE 14D-1 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. SUCH SCHEDULE 14D-1
AND ANY AMENDMENTS THERETO, INCLUDING EXHIBITS, MAY BE INSPECTED AND COPIES
MAY BE OBTAINED IN THE MANNER SET FORTH IN SECTION 8 WITH RESPECT TO THE
COMPANY (EXCEPT THAT SUCH MATERIAL WILL NOT BE AVAILABLE AT THE REGIONAL
OFFICES OF THE COMMISSION).
WEC ACQUISITION
CORPORATION
MARCH 7, 1996
28
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND THE PURCHASER
Parent. Set forth below are the name, business address and present
principal occupation or employment, and material occupations, positions,
offices or employments for the past five years of each director and executive
officer of Parent. Except as otherwise noted, the business address of each
such person is 0000 00xx Xxxxxx X.X., Xxxxxxxxxx, X.X. 20037, and each such
person is a United States citizen. In addition, except as otherwise noted,
each director and executive officer of Parent has been employed in his or her
present principal occupation listed below during the last five years.
Directors of Parent are indicated by an asterisk.
NAME PRINCIPAL OCCUPATION OR EMPLOYMENT, 5-YEAR EMPLOYMENT HISTORY
------------------------------- --------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx ............ Xx. Xxxxxxxx is Senior Vice President, Chief Financial Officer
and Secretary of Parent. He has held such position since 1987.
X. Xxxxx Xxxxxxx ............... Xx. Xxxxxxx is Vice President Administration and Controller of
Parent. He has held such position since 1987.
Xxxxxxxx X. Xxxxxx* ........... Xx. Xxxxxx has been Senior member of Xxxxxx & Xxxxxxxx, a law
Xxxxxx & Xxxxxxxx firm in Washington, D.C. for more than five years. He is a
One Xxxxxx Circle, N.W. Director of Xxxxxxxxx Industries, Inc., Xxxxxxxxx Corporation,
Suite 1100 Presidential Realty Corporation and Unigene Laboratories, Inc.
Washington, D.C. 20005
Xxxxxx X. Xxxxxxxxx ............ Xx. Xxxxxxxxx was appointed Vice President and Group Executive
of Parent in 1994. He has served as President of Xxxxxx Xxxxx
Manufacturing Company for more than five years.
Xxxxx X. Xxxxxxx ............... Xx. Xxxxxxx was appointed Vice President-Finance/Tax of Parent
in January, 1991. He has served in an executive capacity in
finance/tax for Parent since 1988.
Xxxxxx X. Xxxxxxx* ............ Xx. Xxxxxxx is the Chairman, President, Chief Executive
Wabash National Corporation Officer and a Director of Wabash National Corporation. He is a
0000 Xxxxxxxx Xxxxxxx Xxxxx Director of Indiana Secondary Market for Educational Loans,
Lafayette, IN 47905 Inc. and NBD Bank, N.A., Northwest.
Xxxxxx X. Xxxx, Xx.* .......... Xx. Xxxx has been a Partner of Xxxxx & Xxxxxxx, a law firm in
Xxxxx & Xxxxxxx Baltimore, Maryland since 1992. He was an attorney in private
000 Xxxxx Xxxxxxx Xxxxxx practice from 1987 to 1992.
Suite 1600
Baltimore, MD 21202-6191
Xxxxxxxx X. Xxxxx* ............. Xx. Xxxxx is Chairman of the Executive Committee of Parent. He
has held such position since February 1990. He has been a
General Partner of Equity Group Holdings, a general
partnership located in Washington, D.C., with interests in
manufacturing companies, media operations, and publicly traded
securities, since 1979.
S-1
NAME PRINCIPAL OCCUPATION OR EMPLOYMENT, 5-YEAR EMPLOYMENT HISTORY
------------------------------- --------------------------------------------------------------
Xxxxxx X. Xxxxxxx* ............. Xx. Xxxxxxx is President, Chief Executive Officer and a
Director of Parent. He has held such positions since February,
1990.
X. Xxxxx Xxxxxxxxxx, Xx.* .... Xx. Xxxxxxxxxx has been President of Xxxxxxxxxx & Company, a
Xxxxxxxxxx & Company private investment management firm in Denver, Colorado and
000 Xxxxxxxx Xxxxxx Senior Partner of Xxxxxxxxxx Merchant Banking for more than
Denver, CO 80206 five years.
Xxxx X. Xxxxxx ................. Xx. Xxxxxx was appointed Vice President and Group Executive of
Parent in 1993. He has served Parent in an executive capacity
in its Tool Group since September, 1990. He was Executive Vice
President for the Sterling Group, a division of the Kohler
Company.
Xxxxxx X. Xxxxx* ............... Xx. Xxxxx is Chairman of the Board of Parent, a position he
has held since 1984. He was Chief Executive Office of Parent
until February 1990. He has been a General Partner of Equity
Group Holdings, a general partnership located in Washington,
D.C., with interests in manufacturing companies, media
operations, and publicly traded securities, since 1979.
Xxxxxxx X. X. Xxxxxx ........... Xx. Xxxxxx was appointed Vice President and Group Executive of
Parent in 1995. He has served as President of Xxxxxx Vehicle
Equipment Company for more than the past five years.
X. Xxxxxxxx Xxxx, Xx. .......... Xx. Xxxx was appointed Vice President and Group Executive of
Parent in 1995. He has served Parent in an executive capacity
at Xxxxxx-Xxxx Company for more than the past five years.
The Purchaser. The name and position with the Purchaser of each director
and executive officer of the Purchaser are set forth below. The business
address, present principal occupation or employment, five-year employment
history and citizenship of each such person is set forth above.
NAME POSITION WITH THE PURCHASER
----------------------- --------------------------------
Xxxxxx X. Xxxxx ........ Director
Xxxxxxxx X. Xxxxx ...... Director
Xxxxxx X. Xxxxxxx ...... President and Director
Xxxxxxx X. Xxxxxxxx ... Vice President and Treasurer
X. Xxxxx Xxxxxxx ....... Vice President and Secretary
Xxxxx X. Xxxxxxx ....... Vice President
S-2
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 shareholder of the
Company or such shareholder's broker, dealer, commercial bank, trust company
or other nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Facsimile Transmission: By Hand or Overnight Delivery:
P.O. Box 2559 (201) 222-4720 or 00 Xxxx Xxxxxx
Xxxxx 0000-WEC or Eighth Floor
Jersey City, New Jersey (000) 000-0000 Suite 4680-WEC
07303-2559 New York, New York 10005
Confirm Receipt of Notice of Guaranteed Delivery by telephone:
(000) 000-0000
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses or telephone
numbers set forth below. Additional copies of this Offer to Purchase, the
Letter of Transmittal and all other tender offer materials may be obtained
from the Information Agent as set forth below, and will be furnished promptly
at the Purchaser's expense. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
X.X. XXXX & CO., INC.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (Call Collect)
or
(000) 000-0000
The Dealer Manager for the Offer is:
XXXXXXX XXXXX & CO.
World Financial Center
North Tower
New York, New York 10281-1305
(000) 000-0000 (Call Collect)
