EXHIBIT (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
OPTICNET, INC.
BY
OPTO ACQUISITION SUB, INC.,
A WHOLLY OWNED SUBSIDIARY OF
BEI TECHNOLOGIES, INC.
AT
$0.04 NET PER SHARE
THE OFFER (AS DEFINED HEREIN) AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON SEPTEMBER 15, 2003, UNLESS
THE OFFER IS EXTENDED.
Pursuant to an Agreement and Plan of Merger, dated as of July 1, 2003 (the
"Merger Agreement"), by and among BEI Technologies, Inc., a Delaware corporation
("BEI"), Opto Acquisition Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of BEI (the "Purchaser"), and OpticNet, Inc., a Delaware corporation
("OpticNet"), the Purchaser is offering to purchase all of the outstanding
shares of voting common stock and non voting common stock, par value $0.0001 per
share (collectively, the "common stock"), of OpticNet at a price of $0.04 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 the Letter of Transmittal enclosed with this Offer to Purchase, which,
together with any amendments or supplements hereto or thereto, collectively
constitute the "Offer" described in this Offer to Purchase. Following the
purchase by the Purchaser of shares of OpticNet common stock in the Offer and
the satisfaction or waiver of each of the applicable conditions set forth in the
Merger Agreement, the Purchaser will be merged with and into OpticNet (the
"Merger"), with OpticNet surviving the Merger as a wholly owned subsidiary of
BEI. As a result of the Merger, each outstanding share of OpticNet common stock
(other than shares owned by BEI, the Purchaser, OpticNet or any wholly owned
subsidiary of BEI or OpticNet, or by any stockholder of OpticNet who is entitled
to and properly exercises appraisal rights under Delaware law or dissenters'
rights under California law) will be converted into the right to receive the
Offer Price.
OpticNet's board of directors has, at a meeting held on May 20, 2003, by
the unanimous vote of all directors of OpticNet, (i) determined that the Offer
and the Merger are in the best interests of OpticNet and its stockholders, (ii)
approved and adopted the Merger Agreement and the transactions contemplated
thereby, including the Offer and the Merger, in accordance with the Delaware
General Corporation Law and (iii) declared that the Merger Agreement is
advisable. Accordingly, OpticNet's board of directors unanimously recommends
that the stockholders of OpticNet accept the Offer and tender their shares of
OpticNet common stock to the Purchaser in the Offer and, if required, vote to
adopt the Merger Agreement.
The Offer is conditioned upon, among other things, there being validly
tendered in accordance with the terms of the Offer and not withdrawn prior to
the Expiration Date (as defined in this Offer to Purchase) of the Offer shares
of OpticNet common stock that, together with any shares of OpticNet common stock
then owned by BEI or any wholly owned subsidiary of BEI (including the
Purchaser), represent greater than 80% of the "Adjusted Outstanding Share
Number," which is defined in the Merger Agreement as the sum of all then-
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outstanding shares of OpticNet common stock, plus, at the election of BEI, an
additional number of shares of OpticNet common stock up to but not exceeding the
aggregate number of shares of OpticNet common stock issuable upon the exercise
of any outstanding option, warrant or other right to acquire capital stock of
OpticNet, or upon the conversion of any security convertible into capital stock
of OpticNet. (The foregoing condition is referred to as the "Minimum Condition"
in this Offer to Purchase.) The Offer is also subject to other conditions
described in Section 15 (Certain Conditions to the Offer) of this Offer to
Purchase.
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IMPORTANT
Any stockholder of OpticNet who desires to tender all or any portion of
such stockholder's shares of OpticNet common stock to the Purchaser in the Offer
should either (i) complete and sign the Letter of Transmittal (or a facsimile
copy of it) for the Offer, which is enclosed with this Offer to Purchase, in
accordance with the instructions contained in the Letter of Transmittal (having
such stockholder's signature on the Letter of Transmittal guaranteed if required
by Instruction 1 to the Letter of Transmittal), mail or deliver the Letter of
Transmittal (or a facsimile copy of it) and any other required documents to the
depositary for the Offer, Mellon Investor Services (the "Depositary"), and
either deliver the certificates representing such shares to the Depositary along
with the Letter of Transmittal (or a facsimile copy of it) or tender such shares
by book-entry transfer by following the procedures described in Section 5
(Procedures for Tendering Shares of OpticNet Common Stock in the Offer) of this
Offer to Purchase, in each case prior to the Expiration Date of the Offer or
(ii) request such stockholder's broker, dealer, bank, trust company or other
nominee to effect the transaction for such stockholder. Any stockholder of
OpticNet with shares of OpticNet common stock registered in the name of a
broker, dealer, bank, trust company or other nominee must contact that
institution in order to tender such shares to the Purchaser in the Offer.
Any stockholder of OpticNet who desires to tender shares of OpticNet common
stock to the Purchaser in the Offer and whose certificates representing such
shares are not immediately available, or who cannot comply in a timely manner
with the procedures for tendering shares by book-entry transfer, or who cannot
deliver all required documents to the Depositary prior to the Expiration Date of
the Offer, may tender such shares to the Purchaser in the Offer by following the
procedures for guaranteed delivery described in Section 5 (Procedures for
Tendering Shares of OpticNet Common Stock in the Offer) of this Offer to
Purchase.
Questions regarding the Offer, and requests for assistance in connection
with the Offer, may be directed to the Information Agent for the Offer at its
address and telephone number listed below. 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.
The Information Agent for the Offer is:
Mellon Investor Services
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
CALL TOLL FREE: (000) 000-0000
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TABLE OF CONTENTS
PAGE
----
SUMMARY TERM SHEET................................................. 4
INTRODUCTION....................................................... 10
SPECIAL FACTORS.................................................... 12
1. Fairness of the Offer and the Merger........................ 12
2. Purpose, Structure, Alternatives and Effects; Plans for
OpticNet.................................................... 13
3. Certain United States Federal Income Tax Consequences....... 14
THE TENDER OFFER................................................... 15
4. Terms of the Offer.......................................... 15
5. Procedures for Tendering Shares of OpticNet Common Stock in
the Offer................................................... 17
6. Withdrawal Rights........................................... 21
7. Acceptance for Payment and Payment for Shares of OpticNet
Common Stock................................................ 21
8. Trading Market and Price of Shares of OpticNet Common
Stock....................................................... 23
9. Effect of the Offer on the Market for OpticNet Common Stock;
Exchange Act Registration of OpticNet Common Stock.......... 23
10. Certain Information Concerning OpticNet..................... 24
11. Certain Information Concerning the Purchaser and BEI........ 25
12. Source and Amount of Funds.................................. 26
13. Background of the Offer..................................... 27
14. The Merger Agreement........................................ 30
15. Certain Conditions to the Offer............................. 39
16. Certain Legal Matters....................................... 41
17. Fees and Expenses........................................... 42
18. Miscellaneous............................................... 42
SCHEDULE I Directors and Executive Officers of the Purchaser and
BEI.............................................................. S-1
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SUMMARY TERM SHEET
We are Opto Acquisition Sub, Inc., and we are making an offer to purchase
all of the outstanding shares of common stock of OpticNet, Inc. ("OpticNet").
Following are some of the questions you, as a stockholder of OpticNet, may have
about our offer and our answers to those questions. This Summary Term Sheet
provides important and material information about our offer that is described in
more detail elsewhere in this Offer to Purchase, but this Summary Term Sheet may
not include all of the information about our offer that is important to you. We
urge you to carefully read the remainder of this Offer to Purchase and the
Letter of Transmittal for our offer because the information in this Summary Term
Sheet is not complete. Additional important information about our offer is
contained in the remainder of this Offer to Purchase and the Letter of
Transmittal for our offer. We have included cross-references in this Summary
Term Sheet to other sections of this Offer to Purchase to direct you to the
sections of this Offer to Purchase in which a more complete description of the
topics covered in this Summary Term Sheet appear.
WHO IS OFFERING TO BUY MY OPTICNET SHARES?
Our name is Opto Acquisition Sub, Inc. We are a Delaware corporation
organized as a wholly owned subsidiary of BEI Technologies, Inc. ("BEI") for the
sole purpose of making a tender offer for the outstanding shares of common stock
of OpticNet. The principal business and operations of BEI are conducted within
one business segment and are carried out by operations which design, manufacture
and sell electronic devices that provide vital sensory input and actuation for
the control systems of advanced machinery and automation systems. Sensors
designed and manufactured by BEI, most of which are concerned with physical
motion, provide information that is essential to logical, safe and efficient
operation of sophisticated machinery. BEI also develops and produces motors and
actuators, which are the prime movers in high performance machinery. See
Introduction and Section 11 (Certain Information Concerning the Purchaser and
BEI) of this Offer to Purchase for more information.
HOW MANY SHARES OF OPTICNET COMMON STOCK ARE YOU OFFERING TO PURCHASE?
We are making an offer to purchase all of the outstanding shares of common
stock of OpticNet. See Introduction and Section 4 (Terms of the Offer) of this
Offer to Purchase for more information.
HOW MUCH ARE YOU OFFERING TO PAY FOR MY SHARES OF OPTICNET COMMON STOCK, WHAT IS
THE FORM OF PAYMENT AND WILL I HAVE TO PAY ANY FEES OR COMMISSIONS IF I TENDER
MY SHARES IN YOUR OFFER?
We are offering to pay $0.04 per share, net to you, in cash (without
interest) for each of your shares of OpticNet common stock. If you are the
record owner of your shares and you tender them in our offer, you will not have
to pay any brokerage fees or similar expenses to do so. If you own your shares
through a broker or other nominee, and your broker tenders your shares in our
offer on your behalf, your broker or nominee may charge you a fee for doing so.
You should consult your broker or nominee to determine whether it will charge
you a fee for tendering your shares in our offer. See Introduction and Section 4
(Terms of the Offer) of this Offer to Purchase for more information.
DO YOU HAVE THE FINANCIAL RESOURCES TO PAY FOR ALL OF THE SHARES OF OPTICNET
COMMON STOCK THAT YOU ARE OFFERING TO PURCHASE?
Yes. Our parent company, BEI, will contribute to us sufficient funds to pay
for all of the shares of OpticNet common stock that are accepted for payment by
us in our offer, and to make payments for all shares of OpticNet common stock
that are not accepted for payment in our offer and that will be converted into
the right to receive $0.04 per share in cash (without interest), unless
applicable California law requires the remaining OpticNet stockholders to
receive shares of BEI common stock instead, in the merger described below
following the successful completion of our offer. BEI expects to use its cash on
hand and cash equivalents to make this contribution. Our offer is not
conditioned upon any financing contingencies. See Section 12 (Source and Amount
of Funds) of this Offer to Purchase for more information.
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IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION WHETHER TO TENDER MY SHARES
OF OPTICNET COMMON STOCK IN YOUR OFFER?
No. We do not believe that our financial condition is relevant to your
decision whether to tender your shares of OpticNet common stock in our offer
because:
- cash is the only consideration that we are paying to the holders of
OpticNet common stock in connection with our offer;
- we are offering to purchase all of the outstanding shares of OpticNet
common stock in our offer;
- our offer is not subject to any financing contingencies; and
- BEI has sufficient cash on hand and cash equivalents to provide us with
the amount of cash consideration payable to holders of OpticNet common
stock in our offer and the merger described below.
See Section 12 (Source and Amount of Funds) of this Offer to Purchase for
more information.
HOW LONG DO I HAVE TO TENDER MY SHARES OF OPTICNET COMMON STOCK IN YOUR OFFER?
Unless we extend our offer, you will have until 12:00 midnight, New York
City time, on September 15, 2003, to tender your shares of OpticNet common stock
in our offer. If you cannot deliver everything that is required to tender your
shares by that time, you may be able to use a guaranteed delivery procedure to
tender your shares, as described in Section 5 (Procedures for Tendering Shares
of OpticNet Common Stock in the Offer) of this Offer to Purchase.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO YOUR OFFER?
We are not obligated to purchase any shares of OpticNet common stock that
are tendered in our offer unless, prior to the expiration of our offer, the
number of shares validly tendered in accordance with the terms of our offer and
not withdrawn, together with any shares of OpticNet common stock then owned by
BEI or any wholly owned subsidiary of BEI (including us), represent greater than
80% of the "adjusted outstanding share number," which is defined in the merger
agreement as the sum of all then-outstanding shares of OpticNet common stock,
plus, at the election of BEI, an additional number of shares of OpticNet common
stock up to but not exceeding the aggregate number of shares of OpticNet common
stock issuable upon the exercise of any outstanding option, warrant or other
right to acquire capital stock of OpticNet, or upon the conversion of any
security convertible into capital stock of OpticNet. (The foregoing condition is
referred to as the "minimum condition.")
Our offer is not subject to any financing contingencies, but it is subject
to a number of other conditions, including conditions with respect to the
accuracy of OpticNet's representations and warranties in the merger agreement as
of the date of the merger agreement and as of the date of the expiration of the
Offer, OpticNet's compliance in all material respects with its covenants set
forth in the merger agreement, and the absence of any legal proceeding involving
a governmental body related to our offer or the merger. See Section 15 (Certain
Conditions to the Offer) of this Offer to Purchase for more information about
these and other conditions to our offer.
We can waive any condition to our offer without OpticNet's consent, other
than the minimum condition.
UNDER WHAT CIRCUMSTANCES CAN OR MUST YOU EXTEND YOUR OFFER?
We are permitted to (but not required to) extend our offer beyond its
initial expiration date of September 15, 2003:
- for any period required by any rule or regulation of the Securities and
Exchange Commission applicable to our offer;
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- for such amount of time as we determine to be necessary to permit all of
the conditions to our offer to be satisfied; and
- for an additional period of not more than twenty business days, if the
minimum condition has been satisfied, but the sum of the number of shares
of OpticNet common stock that have been validly tendered and not
withdrawn in our offer as of the scheduled or any extended expiration
date of our offer, together with any shares of OpticNet common stock then
owned by BEI or any wholly owned subsidiary of BEI (including us),
represents less than 90% of the adjusted outstanding share number as of
that date.
See Section 4 (Terms of the Offer) of this Offer to Purchase for more
information.
At our option, we may (but are not required to) also provide for a
subsequent offering period, and one or more extensions thereof, following the
expiration of and acceptance for payment of shares tendered in our offer. During
any subsequent offering period, if there is one, you could tender your shares to
us for the same offer price payable in our offer. See Section 4 (Terms of the
Offer) of this Offer to Purchase for more information.
HOW WILL I BE NOTIFIED IF YOU EXTEND YOUR OFFER?
If we extend our offer, we will inform the Depositary, Mellon Investor
Services, of that fact and will make a public announcement of the extension not
later than 9:00 a.m., New York City time, on the next business day after the day
on which our offer was previously scheduled to expire. See Section 4 (Terms of
the Offer) of this Offer to Purchase for more information.
HOW DO I TENDER MY SHARES OF OPTICNET COMMON STOCK IN YOUR OFFER?
To tender all or any portion of your shares of OpticNet common stock in our
offer, you must either deliver the certificate or certificates representing your
tendered shares, together with the Letter of Transmittal (or a facsimile copy of
it) enclosed with this Offer to Purchase, properly completed and duly executed,
together with any required signature guarantees, and any other required
documents, to the Depositary, Mellon Investor Services, or tender your shares
using the book-entry procedure described in Section 5 (Procedures for Tendering
Shares of OpticNet Common Stock in the Offer), prior to the expiration of our
offer.
If you hold your shares of OpticNet common stock in street name through a
broker, dealer, bank, trust company or other nominee and you wish to tender all
or any portion of your shares of OpticNet common stock in our offer, the broker,
dealer, bank, trust company or other nominee that holds your shares must tender
them on your behalf through the Depositary.
If you cannot deliver the items that are required to be delivered to the
Depositary by the expiration of our offer, you may obtain additional time to do
so by having a broker, bank or other fiduciary that is a member of the
Securities Transfer Agent's Medallion Program or other eligible institution
guarantee that the missing items will be received by the Depositary within three
business days. You may use the Notice of Guaranteed Delivery enclosed with this
Offer to Purchase for this purpose. To tender shares of OpticNet common stock in
this manner, however, the Depositary must receive the missing items within such
three business day period. See Section 5 (Procedures for Tendering Shares of
OpticNet Common Stock in the Offer) of this Offer to Purchase for more
information.
CAN I WITHDRAW SHARES THAT I PREVIOUSLY TENDERED IN YOUR OFFER? UNTIL WHAT TIME
MAY I WITHDRAW PREVIOUSLY TENDERED SHARES?
Yes. You can withdraw some or all of the shares of OpticNet common stock
that you previously tendered in our offer at any time until the expiration date
of our offer as it may be extended. Further, if we have not accepted your shares
for payment by September 15, 2003, you can withdraw them at any time after
September 15, 2003. Once we accept your tendered shares for payment upon the
expiration of our offer, however, you will no longer be able to withdraw them.
In addition, your right to withdraw your previously tendered and accepted shares
will not apply to any subsequent offering period (which is not the same as an
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extension of our offer), if one is provided. See Section 4 (Terms of the Offer)
and Section 6 (Withdrawal Rights) of this Offer to Purchase for more
information.
HOW DO I WITHDRAW MY PREVIOUSLY TENDERED SHARES?
To withdraw any shares of OpticNet common stock that you previously
tendered in our offer, you (or, if your shares are held in street name, the
broker, dealer, bank, trust company or other nominee that holds your shares)
must deliver a written notice of withdrawal (or a facsimile copy of one), with
the required information, to the Depositary while you still have the right to
withdraw your shares. See Section 4 (Terms of the Offer) and Section 6
(Withdrawal Rights) of this Offer to Purchase for more information.
HAS OPTICNET'S BOARD OF DIRECTORS APPROVED YOUR OFFER?
Yes. Our offer is being made pursuant to an Agreement and Plan of Merger,
dated as of July 1, 2003, by and among BEI, OpticNet and us. OpticNet's board of
directors has, by the unanimous vote of all directors of OpticNet:
- determined that the offer and the merger contemplated by the merger
agreement, are in the best interests of OpticNet and its stockholders;
- approved and adopted the merger agreement and the transactions
contemplated thereby, including our offer and the merger contemplated by
the merger agreement in accordance with applicable law; and
- declared that the merger agreement is advisable.
Accordingly, OpticNet's board of directors unanimously recommends that you
accept our offer and tender your shares of OpticNet common stock pursuant to our
offer and, if required, vote to adopt the merger agreement.
The factors considered by OpticNet's board of directors in making the
determinations and the recommendation described above are described in
OpticNet's Solicitation/Recommendation Statement on Schedule 14D-9, which has
been filed with the Securities and Exchange Commission and is being mailed to
the stockholders of OpticNet with this Offer to Purchase.
American Appraisal Associates, which acted as the financial advisor to
OpticNet's board of directors, delivered an opinion to OpticNet's board of
directors, dated July 1, 2003, to the effect that, as of that date, based upon
and subject to the assumptions made, the procedures followed, other matters
considered and the limitations of the review undertaken in its opinion, the
offer price to be paid to stockholders whose shares of OpticNet common stock are
accepted for payment in our offer and to be paid to stockholders in the merger
was fair, from a financial point of view, to the holders of shares of OpticNet
common stock. Stockholders of OpticNet are urged to, and should, carefully read
OpticNet's Solicitation/Recommendation Statement on Schedule 14D-9 and the
opinion of American Appraisal Associates in their entirety.
WHAT ARE YOUR PLANS IF YOU SUCCESSFULLY COMPLETE YOUR OFFER BUT DO NOT ACQUIRE
ALL OF THE OUTSTANDING SHARES OF OPTICNET COMMON STOCK IN YOUR OFFER?
If we successfully complete our offer and certain limited conditions are
satisfied, as soon as practicable following the successful completion of our
offer, we intend to merge with and into OpticNet. As a result of that merger,
(i) all of the outstanding shares of OpticNet common stock that are not tendered
in our offer, other than shares that are owned by BEI, OpticNet or us (or any
wholly owned subsidiary of BEI or OpticNet), any shares that are owned by any
stockholder of OpticNet who is entitled to and properly exercises appraisal
rights under Delaware law in respect of their shares, and any shares that are
owned by any stockholder of OpticNet that are "dissenting shares" under
California law, will be canceled and converted into the right to receive $0.04
per share in cash (without interest), unless applicable California law requires
you to receive shares of BEI common stock instead and (ii) each issued and
outstanding share of our capital stock which is owned by BEI will be converted
into one share of OpticNet common stock, as a result of which BEI will own all
of the issued and outstanding shares of OpticNet.
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Our obligation to merge with OpticNet following the successful completion
of our offer is conditioned on the adoption of the merger agreement by
OpticNet's stockholders under Delaware law (if required) and no temporary
restraining order, preliminary or permanent injunction or other order preventing
the completion of the merger having been issued by any court of competent
jurisdiction and remaining in effect, and there not being any legal requirement
enacted or deemed applicable to the merger that makes completion of the merger
illegal. If we successfully complete our offer but own less than 90% of the
outstanding shares of OpticNet common stock, we will hold a sufficient number of
shares of OpticNet common stock to ensure the requisite adoption of the merger
agreement by OpticNet stockholders under Delaware law to complete the merger,
but we will be required by California law to either (i) obtain a favorable
ruling in a hearing before the California Department of Corporations as to the
fairness of providing cash to the remaining holders of OpticNet common stock or
(ii) issue shares of BEI common stock to the remaining holders of OpticNet
common stock in exchange for their OpticNet common stock. In this situation we
will be issuing these shares of BEI common stock pursuant to a registration
statement on Form S-4 or pursuant to exemptions to registration that may
otherwise be available. If we successfully complete our offer and we own at
least 90% of the outstanding shares of OpticNet common stock, we will not be
required to obtain stockholder approval to complete the merger and remaining
shares of OpticNet common stock will be cancelled and converted into the right
to receive the same amount of cash per share received in the Offer.
IF YOU SUCCESSFULLY COMPLETE YOUR OFFER AND MERGE WITH AND INTO OPTICNET, WHAT
WILL HAPPEN TO OPTICNET'S BOARD OF DIRECTORS AND OFFICERS?
If we successfully complete our offer and merge with and into OpticNet, our
directors and officers will become the directors and officers of OpticNet at the
effective time of the merger.
IF I DECIDE NOT TO TENDER MY SHARES OF OPTICNET COMMON STOCK IN YOUR OFFER, HOW
WILL YOUR OFFER AFFECT MY SHARES?
If you do not tender your shares in our offer but we successfully complete
our offer and the merger takes place, your shares will be canceled and converted
into the right to receive the same amount of cash that you would have received
had you tendered your shares in our offer (without interest) unless applicable
California law requires you to receive shares of BEI common stock instead,
subject to your right to pursue your appraisal rights under Delaware law or
rights as to "dissenting shares" under California law. Therefore, if we complete
the merger, unless you perfect your appraisal rights under Delaware law or
rights as to "dissenting shares" under California law, the only difference to
you between having your shares accepted for payment in our offer and not doing
so is that you will be paid earlier if you have your shares accepted for payment
in our offer.
If we successfully complete our offer, then until such time thereafter as
we complete the merger, the number of stockholders of OpticNet may be so small
that OpticNet may cease making filings with the Securities and Exchange
Commission or otherwise cease being required to comply with the Securities and
Exchange Commission's rules relating to publicly held companies. See Section 9
(Effect of the Offer on the Market for OpticNet Common Stock; Nasdaq Listing of
OpticNet Common Stock; Exchange Act Registration of OpticNet Common Stock) and
Section 2 (Purpose, Structure, Alternatives and Effects; Plans for OpticNet) of
this Offer to Purchase for more information.
ARE APPRAISAL RIGHTS AVAILABLE IN EITHER YOUR OFFER OR THE MERGER?
Appraisal rights are not available in connection with our offer. If you
choose not to tender your shares of OpticNet common stock in our offer, however,
and we purchase shares of OpticNet common stock in our offer, appraisal rights
will be available to you in connection with our merger with and into OpticNet.
If you choose to exercise your appraisal rights in connection with the merger,
and you comply with the applicable requirements under Delaware law or California
law, you will be entitled to payment for your shares based on the value of your
shares as of June 30, 2003, the date prior to public announcement of the
proposed transaction with BEI. This value may be more or less than the $0.04 per
share that we are offering to pay you for your shares in our offer or that you
would otherwise receive in the Merger. See Section 14 (The Merger Agreement) of
this Offer to Purchase for more information.
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WHAT ARE THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF HAVING MY SHARES
OF OPTICNET COMMON STOCK ACCEPTED FOR PAYMENT IN YOUR OFFER OR RECEIVING CASH IN
THE MERGER?
The receipt of cash pursuant to our offer (or the merger) will be a taxable
transaction for United States federal income tax purposes under the Internal
Revenue Code of 1986, as amended, and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for
United States federal income tax purposes, a stockholder having shares of
OpticNet common stock accepted for payment in our offer or receiving cash in the
merger will recognize gain or loss equal to the difference between the amount of
cash received by the stockholder in our offer (or the merger) and the
stockholder's aggregate adjusted tax basis in the shares tendered by the
stockholder and accepted for payment in our offer (or converted into cash in the
merger). Gain or loss will be calculated separately for each block of shares
tendered and accepted for payment in our offer (or converted into cash in the
merger). See Section 3 (Certain United States Federal Income Tax Consequences)
of this Offer to Purchase for more information.
STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE
PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY
STATE, LOCAL OR FOREIGN INCOME AND OTHER TAX LAWS) OF OUR OFFER AND THE MERGER.
WHAT IS THE MARKET VALUE OF MY SHARES OF OPTICNET COMMON STOCK?
Because there are transfer restrictions on OpticNet common stock contained
in OpticNet's bylaws and there is no authorized public trading market for
OpticNet common stock, there is no readily ascertainable market value for
OpticNet common stock. As described above, American Appraisal Associates has
delivered an opinion to OpticNet's board of directors, dated July 1, 2003, to
the effect that, as of that date, the offer price to be paid to stockholders
whose shares of OpticNet common stock are accepted for payment in our offer and
to be paid to stockholders in the merger was fair. See Section 8 (Trading Market
and Price of Shares of OpticNet Common Stock) of this Offer to Purchase for more
information.
WHOM CAN I CONTACT IF I HAVE QUESTIONS ABOUT YOUR OFFER?
You should contact the Information Agent for our offer at its address and
telephone numbers listed below if you have any questions about our offer.
The Information Agent for the Offer is:
Mellon Investor Services
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
CALL TOLL FREE: (000) 000-0000
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To: The Holders of Common Stock of OpticNet, Inc.:
INTRODUCTION
Opto Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of BEI Technologies, Inc., a Delaware corporation
("BEI"), hereby offers to purchase all of the outstanding shares of voting
common stock and non voting common stock (collectively, the "common stock"), par
value $0.0001 per share, of OpticNet, Inc., a Delaware corporation ("OpticNet"),
at a price of $0.04 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 the Letter of Transmittal enclosed with this
Offer to Purchase, which, together with any amendments or supplements hereto or
thereto, collectively constitute the "Offer" described in this Offer to
Purchase.
Tendering OpticNet stockholders whose shares of OpticNet common stock are
registered in their own names and who tender their shares directly to Mellon
Investor Services, which is acting as the Depositary for the Offer, will not be
obligated to pay brokerage fees or commissions in connection with the Offer or,
except as set forth in Instruction 6 to the Letter of Transmittal for the Offer,
transfer taxes on the sale of the shares in the Offer. A stockholder of OpticNet
who holds shares of OpticNet common stock through a broker, dealer, bank, trust
company or other nominee should consult with such institution to determine
whether it will charge any service fees for tendering such stockholder's shares
to the Purchaser in the Offer.
The Purchaser will pay all fees and expenses of Mellon Investor Services,
which is acting as the information agent for the Offer (the "Information Agent")
and as the Depositary, incurred in connection with the Offer. See Section 17
(Fees and Expenses) of this Offer to Purchase for more information.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of July 1, 2003, by and among BEI, the Purchaser and OpticNet (the "Merger
Agreement") pursuant to which, following the purchase by the Purchaser of shares
of OpticNet common stock in the Offer and the satisfaction or waiver of certain
conditions, the Purchaser will be merged with and into OpticNet (the "Merger"),
with OpticNet surviving the Merger as a wholly owned subsidiary of BEI. As a
result of the Merger, each outstanding share of OpticNet common stock (other
than shares owned by BEI, the Purchaser, OpticNet or any wholly owned subsidiary
of BEI or OpticNet, or by any stockholder of OpticNet who is entitled to and
properly exercises appraisal rights under Delaware law or California law) will
be converted into the right to receive the Offer Price, without interest
thereon. See Section 14 (The Merger Agreement) of this Offer to Purchase for
more information.
OPTICNET'S BOARD OF DIRECTORS HAS, AT A MEETING HELD ON MAY 20, 2003, BY
THE UNANIMOUS VOTE OF ALL DIRECTORS OF OPTICNET, (I) DETERMINED THAT THE OFFER
AND THE MERGER ARE IN THE BEST INTERESTS OF OPTICNET AND ITS STOCKHOLDERS, (II)
APPROVED AND ADOPTED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
THEREBY, INCLUDING THE OFFER AND THE MERGER, IN ACCORDANCE WITH THE DGCL (AS
DEFINED BELOW) AND (III) DECLARED THAT THE MERGER AGREEMENT IS ADVISABLE.
ACCORDINGLY, OPTICNET'S BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE
STOCKHOLDERS OF OPTICNET ACCEPT THE OFFER AND TENDER THEIR SHARES OF OPTICNET
COMMON STOCK TO THE PURCHASER IN THE OFFER AND, IF REQUIRED, VOTE TO ADOPT THE
MERGER AGREEMENT.
The factors considered by OpticNet's board of directors in making the
determinations and the recommendation described above are described in
OpticNet's Solicitation/Recommendation Statement on Schedule 14D-9, which has
been filed with the Securities and Exchange Commission and is being mailed to
the stockholders of OpticNet with this Offer to Purchase.
American Appraisal Associates, which acted as the financial advisor to
OpticNet's board of directors, delivered an opinion to OpticNet's board of
directors, dated July 1, 2003, to the effect that, as of that date, based upon
and subject to the assumptions made, the procedures followed, other matters
considered and the limitations of the review undertaken in its opinion, the
Offer Price to be paid to tendering stockholders in the Offer and to be paid to
holders of OpticNet common stock in the Merger was fair, from a financial point
of view, to the holders of shares of OpticNet common stock. Stockholders of
OpticNet are urged to, and should,
10
carefully read OpticNet's Solicitation/Recommendation Statement on Schedule
14D-9 and the opinion of American Appraisal Associates in their entirety.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED IN ACCORDANCE WITH THE TERMS OF THE OFFER AND NOT WITHDRAWN PRIOR TO
THE EXPIRATION DATE (AS DEFINED IN SECTION 1 OF THIS OFFER TO PURCHASE) OF THE
OFFER (EXCLUDING SHARES TENDERED BY NOTICE OF GUARANTEED DELIVERY THAT HAVE NOT
BEEN DELIVERED TO THE DEPOSITARY BY THE EXPIRATION DATE) SHARES OF OPTICNET
COMMON STOCK THAT, TOGETHER WITH ANY SHARES OF OPTICNET COMMON STOCK THEN OWNED
BY BEI OR ANY WHOLLY OWNED SUBSIDIARY OF BEI (INCLUDING THE PURCHASER),
REPRESENT GREATER THAN 80% OF THE "ADJUSTED OUTSTANDING SHARE NUMBER," WHICH IS
DEFINED IN THE MERGER AGREEMENT AS THE SUM OF ALL THEN-OUTSTANDING SHARES OF
OPTICNET COMMON STOCK, PLUS, AT THE ELECTION OF BEI, AN ADDITIONAL NUMBER OF
SHARES OF OPTICNET COMMON STOCK UP TO BUT NOT EXCEEDING THE AGGREGATE NUMBER OF
SHARES OF OPTICNET COMMON STOCK ISSUABLE UPON THE EXERCISE OF ANY OUTSTANDING
OPTION, WARRANT OR OTHER RIGHT TO ACQUIRE CAPITAL STOCK OF OPTICNET, OR UPON THE
CONVERSION OF ANY SECURITY CONVERTIBLE INTO CAPITAL STOCK OF OPTICNET. (THE
FOREGOING CONDITION IS REFERRED TO AS THE "MINIMUM CONDITION.") THE OFFER IS
ALSO SUBJECT TO OTHER CONDITIONS DESCRIBED IN SECTION 15 (CERTAIN CONDITIONS TO
THE OFFER) OF THIS OFFER TO PURCHASE.
Completion of the Merger is also subject to the satisfaction of certain
conditions, including (i) the acceptance for payment of, and payment for, shares
of OpticNet common stock by the Purchaser in the Offer and (ii) the adoption of
the Merger Agreement by the affirmative vote of the holders of greater than 50%
of the outstanding shares of OpticNet common stock, if required by applicable
law. If the Offer is successfully completed, the Purchaser will have sufficient
voting power to adopt the Merger Agreement without the vote of any other holder
of OpticNet common stock. In addition, if the Purchaser owns 90% or more of the
outstanding shares of OpticNet common stock, under applicable law, the Purchaser
and BEI will be able to complete the Merger without adoption of the Merger
Agreement by the other holders of OpticNet common stock. In such event, under
the terms of the Merger Agreement, BEI, the Purchaser and OpticNet have agreed
to take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable without a stockholders' meeting. See Section 14
(The Merger Agreement) of this Offer to Purchase for more information.
OpticNet has informed the Purchaser that, as of July 1, 2003, there were:
(i) 50,000,000 shares of common stock authorized, (A) of which 35,000,000 shares
were designated as voting common stock, of which 3,093,202 shares were issued
and outstanding, and (B) of which 5,000,000 shares were designated as nonvoting
common stock, of which 2,998,902 shares were issued and outstanding; (ii)
22,000,000 shares of preferred stock authorized, (A) of which 2,000,000 shares
were designated Series A preferred stock, of which 2,000,000 shares were issued
and outstanding, and (B) of which 18,146,420 shares were designated Series B
preferred stock, all of which were issued and outstanding; and (iii) 142,000
shares of OpticNet common stock subject to issuance pursuant to stock options
granted and outstanding under OpticNet's 2000 Equity Incentive Plan. Based upon
the foregoing, the Minimum Condition will be satisfied if between 4,873,684
shares of OpticNet common stock (assuming that BEI elects to include only
outstanding shares of OpticNet common stock in calculating OpticNet's Adjusted
Outstanding Share Number) and 4,987,284 shares of OpticNet common stock
(assuming that BEI elects to include both outstanding shares of OpticNet common
stock and the maximum permissible number of options in calculating OpticNet's
Adjusted Outstanding Share Number) are validly tendered and not withdrawn prior
to the Expiration Date of the Offer. The actual number of shares of OpticNet
common stock that are required to be tendered to satisfy the Minimum Condition
will depend upon the actual Adjusted Outstanding Share Number as determined by
BEI. BEI currently owns 37,613 shares of OpticNet's voting common stock, owns
2,000,000 shares of OpticNet's Series A preferred stock, which are convertible
at any time into an equal number of shares of OpticNet's voting common stock,
and owns 18,146,420 shares of OpticNet's Series B preferred stock, which is
non-convertible and nonvoting. To the extent BEI converts any of its shares of
OpticNet Series A preferred stock into shares of OpticNet voting common stock,
the Minimum Condition will be satisfied with a lower number of shares validly
tendered and not withdrawn prior to the Expiration Date of the Offer. BEI has no
current plans to convert its shares of OpticNet Series A preferred stock into
shares of OpticNet voting common stock in connection with or prior to
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this Offer. See Section 11 (Certain Information Concerning the Purchaser and
BEI) of this Offer to Purchase for more information.
Certain U.S. federal income tax consequences of the sale of the shares of
OpticNet common stock purchased by the Purchaser pursuant to the Offer and the
conversion of shares of OpticNet common stock pursuant to the Merger are
described in Section 3 (Certain United States Federal Income Tax Consequences)
of this Offer to Purchase.
If, between the date of the Merger Agreement and the date on which any
particular share of OpticNet common stock is accepted for payment and paid for
pursuant to the Offer, the outstanding shares of OpticNet common stock are
changed into a different number or class of shares by reason of any stock split,
division or subdivision of shares, stock dividend, reverse stock split,
consolidation of shares, reclassification, recapitalization or other similar
transaction, then the Offer Price applicable to such share will be appropriately
adjusted.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL FOR THE OFFER CONTAIN
IMPORTANT INFORMATION ABOUT THE OFFER AND SHOULD BE READ CAREFULLY AND IN THEIR
ENTIRETY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
SPECIAL FACTORS
1. FAIRNESS OF THE OFFER AND THE MERGER
The Purchaser and BEI have concluded that the consideration to be received
by the unaffiliated holders of shares of OpticNet common stock pursuant to the
Offer and the Merger is fair to such holders. In reaching their decision, the
Purchaser and BEI consulted with BEI's management, financial advisors and legal
counsel. Set forth below are the material factors that the Purchaser and BEI
considered in reaching their determination:
- the factors considered by, the analysis and conclusions of, and the
unanimous approval by, the board of directors of OpticNet, including a
special committee of the board of directors of OpticNet, as set forth in
the Schedule 14D-9, which factors (including the opinion rendered by
American Appraisal Associates), analyses and conclusions, as set forth
therein, are incorporated by reference herein;
- the amount of consideration to be received by the holders of shares of
OpticNet common stock pursuant to the Offer and the Merger;
- the consideration to be received by holders of shares of OpticNet common
stock pursuant to the Offer and the Merger will consist entirely of cash;
- the transfer restrictions on OpticNet common stock contained in
OpticNet's bylaws and the fact that there is no authorized public trading
market for OpticNet common stock;
- the process leading to the Offer and the Merger;
- the possible alternatives to the Offer and Merger, the range of possible
benefits to OpticNet's stockholders from such alternatives and the
expected timing and likelihood of accomplishing any of the alternatives;
- information with regard to the financial condition, results of
operations, business and prospects of OpticNet, the conditions to
consummation of the Offer and the Merger as well as current economic and
market conditions;
- the necessity that OpticNet consummate a transaction of some type,
whether an equity investment, or strategic sale of OpticNet in order to
secure OpticNet's survival in some form;
- OpticNet's inability, prior to the execution of the Merger Agreement and
related documents, to obtain serious interest or consideration for equity
financing or other strategic business combination transactions from third
parties;
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- the financial and other terms of the Offer and the Merger, including
without limitation, the terms of the Merger Agreement, should not unduly
discourage third parties from making bona fide proposals subsequent to
the singing of the Merger Agreement and, if any of these proposals were
made, the board of directors of OpticNet, in the exercise of its
fiduciary duties and in accordance with the Merger Agreement, could
authorize OpticNet to furnish information and negotiate with another
party in relation to a superior offer (see Section 12 (Purpose of the
Offer and the Merger; Plans for OpticNet; The Merger Agreement) of this
Offer to Purchase for more information);
- the efforts of OpticNet's management to solicit indications of interest
in acquiring OpticNet from other potential buyers, and the fact that no
other proposal that was both meaningful and acceptable to OpticNet's
board of directors resulted from that process; and
- the terms of the Merger Agreement were the result of arm's-length
negotiations between OpticNet and its advisors and BEI and its advisors.
In reaching their conclusion, the Purchaser and BEI have adopted the
analysis of the factors referred to in the Schedule 14D-9 as having been taken
into account by the board of directors of OpticNet. The Purchaser and BEI did
not find it practicable to, and did not, quantify or otherwise attach relative
weights to the foregoing factors or determine that any factor was of particular
importance independent of the analysis by the board of directors of OpticNet in
reaching its conclusion as to fairness. Rather the Purchaser and BEI viewed
their position as being based on the totality of the information present to and
considered by them.
The Purchaser and BEI have not received, nor sought to obtain, any report,
opinion or appraisal from an outside party, including without limitation, an
investment banker's opinion, relating to the consideration or fairness of the
consideration offered to the unaffiliated stockholders of OpticNet in the Offer
and the Merger or the fairness of the Offer and the Merger to OpticNet, the
Purchaser, BEI or any unaffiliated stockholders of OpticNet.
2. PURPOSE, STRUCTURE, ALTERNATIVES, AND EFFECTS; PLANS FOR OPTICNET
PURPOSE OF THE OFFER AND THE MERGER
The purpose of the Offer and Merger is to enable BEI to acquire the entire
equity interest in, and thus control of, OpticNet. The Offer, as the first step
in the acquisition of OpticNet, is intended to facilitate the acquisition of all
of the outstanding shares of OpticNet common stock or, if fewer than all of the
outstanding shares of OpticNet common stock are tendered in the Offer and not
withdrawn prior to the Expiration Date of the Offer, such lesser number of
shares of OpticNet common stock, subject to the conditions to the Offer
described in Section 15 (Certain Conditions to the Offer) of this Offer to
Purchase. The purpose of the Merger is for BEI to acquire any and all
outstanding shares of OpticNet common stock that are not tendered in the Offer
and accepted for payment by the Purchaser in the Offer.
STRUCTURE AND ALTERNATIVES TO THE OFFER AND THE MERGER
The acquisition of the entire equity interest in OpticNet has been
structured as a cash tender offer followed by a cash merger in order to provide
a prompt and orderly transfer of ownership of the equity interest in OpticNet
from the nonaffiliated stockholders of OpticNet to the Purchaser and BEI and to
provide cash to the holders of shares of OpticNet common stock. The Purchaser
and BEI proposed a cash tender offer followed by a cash merger rather than a
one-step merger because they believed that a one-step merger would take
significantly longer to complete and would involve greater transaction expenses.
EFFECTS OF THE OFFER AND THE MERGER
Following the Merger, the interest of BEI in OpticNet's net book value and
net income will be 100%. BEI, as the sole stockholder of OpticNet, will
thereafter benefit from any increases in the value of OpticNet and also bear the
risk of any decreases in the value of OpticNet's operations. Conversely,
following the Offer and the Merger, persons who were stockholders of OpticNet
immediately prior to the Offer and the Merger
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will no longer have the opportunity to continue their interests in OpticNet as
an ongoing corporation and therefore will not share in its future earnings and
potential growth.
PLANS FOR OPTICNET
Following successful completion of the Offer and the Merger, BEI intends to
integrate OpticNet's operations with those of BEI under the direction of BEI
management. BEI's principal reason for acquiring OpticNet is to cause OpticNet
to benefit from the research, development and production capabilities of BEI in
the field of advanced silicon sensors. Additionally, BEI will recognize
significant savings on a consolidated basis as the ongoing cost of maintaining
OpticNet as a public entity will be eliminated.
3. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash in the Offer or the Merger will be a taxable
transaction for United States federal income tax purposes under the Internal
Revenue Code of 1986, as amended (which is sometimes referred to as the "IRC" in
this Offer to Purchase), and may also be a taxable transaction under applicable
state, local or foreign income or other tax laws. Generally, for U.S. federal
income tax purposes, a U.S. stockholder whose shares of OpticNet common stock
are accepted for payment in the Offer (or who receives cash in the Merger) will
recognize gain or loss equal to the difference between the amount of cash
received by the stockholder in the Offer or the Merger and the stockholder's
aggregate adjusted tax basis in the shares tendered by the stockholder and
accepted for payment in the Offer or converted into cash in the Merger, as the
case may be. Gain or loss will be calculated separately for each block of shares
tendered and accepted for payment in the offer or converted into cash in the
merger, as the case may be.
If shares of OpticNet common stock that are tendered in the Offer are held
by a tendering U.S. stockholder as capital assets, gain or loss recognized by
such stockholder will be capital gain or loss, which will be long-term capital
gain or loss if such stockholder's holding period for such shares exceeds one
year. In the case of a tendering non-corporate stockholder, long-term capital
gains will be eligible for a maximum United States federal income tax rate of
15%. In addition, there are limits on the deductibility of capital losses.
A stockholder (other than certain exempt stockholders including, among
others, all corporations and certain foreign individuals) that tenders shares of
OpticNet common stock in the Offer may be subject to 28% backup withholding
unless such stockholder provides such stockholder's taxpayer identification
number and certifies under penalty of perjury that such taxpayer identification
number is correct (or properly certifies that it is awaiting a taxpayer
identification number) and certifies as to no loss of exemption from backup
withholding and otherwise complies with the applicable requirements of the
backup withholding rules. A stockholder whose shares of OpticNet common stock
are accepted for payment in the Offer that does not furnish a required taxpayer
identification number or which does not otherwise establish a basis for an
exemption from backup withholding may be subject to a penalty imposed by the
United States Internal Revenue Service. See Section 2 (Procedures for Tendering
Shares of OpticNet Common Stock in the Offer) of this Offer to Purchase under
the caption "Backup Withholding". Each stockholder that is tendering shares of
OpticNet common stock in the Offer who is a U.S. citizen or U.S. resident alien
should complete and sign the Substitute Form W-9 included as part of the Letter
of Transmittal enclosed with this Offer to Purchase to provide the information
and certification necessary to avoid backup withholding. Stockholders who are
not U.S. citizens or U.S. resident aliens should complete, sign and return to
the Depositary a Form W-8BEN, Certificate of Foreign Status of Beneficial Owner
for United States Tax Withholding, copies of which may be obtained by contacting
the Depositary, in order to avoid backup withholding.
If backup withholding applies to a stockholder that is tendering shares of
OpticNet common stock in the Offer, the Depositary is required to withhold 28%
of any amounts that would otherwise be paid to such stockholder in connection
with the Offer. Backup withholding is not an additional tax. Rather, the amount
of the backup withholding can be credited against the United States federal
income tax liability of the person subject to the backup withholding, provided
that the required information is given to the United States
14
Internal Revenue Service. If backup withholding results in an overpayment of
tax, the stockholder subject to such backup withholding can obtain a refund by
filing a United States federal income tax return.
The foregoing description is based on the IRC, regulations issued
thereunder, judicial decisions and administrative rulings, all of which are
subject to change, possibly with retroactive effect. The foregoing description
may not be applicable with respect to shares of OpticNet common stock that are
received pursuant to the exercise of employee stock options or otherwise as
compensation or with respect to holders of shares of OpticNet common stock who
are subject to special tax treatment under the IRC -- such as non-U.S. persons,
insurance companies, dealers or brokers in securities or currencies, tax-exempt
organizations and financial institutions -- and may not apply to a holder of
shares of OpticNet common stock in light of individual circumstances, such as
holding shares of OpticNet common stock as a hedge or as part of a hedging,
straddle, conversion, synthetic security, integrated investment or other
risk-reduction transaction.
STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE
PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY
STATE, LOCAL OR FOREIGN INCOME AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
THE TENDER OFFER
4. TERMS OF THE OFFER
Upon the terms of and subject to the conditions to the Offer (including, if
the Offer is extended or amended, the terms and conditions of such extension or
amendment), the Purchaser will accept for payment and pay for all shares of
OpticNet common stock that are validly tendered on or prior to the Expiration
Date of the Offer and not theretofore withdrawn in accordance with the
procedures for withdrawal described in Section 6 (Withdrawal Rights) of this
Offer to Purchase. The term "Expiration Date" as used in this Offer to Purchase
means 12:00 midnight, New York City time, on September 15, 2003, unless and
until the Purchaser extends the period of time during which the Offer is open in
accordance with the terms of the Merger Agreement, in which event the term
Expiration Date of the Offer as used in this Offer to Purchase will mean the
latest time at which the Offer, as so extended by the Purchaser, will expire.
Subject to the terms of the Merger Agreement, the Purchaser expressly
reserves the right (but is not obligated under the terms of the Merger Agreement
or for any other reason) to increase the Offer Price and to waive or make any
other changes to the terms and conditions of the Offer, except that, without the
prior written consent of OpticNet: (i) the Minimum Condition may not be amended
or waived; and (ii) no change may be made to the Offer that (A) changes the form
of consideration to be paid pursuant to the Offer, (B) decreases the Offer Price
or the number of shares of OpticNet common stock sought to be purchased in the
Offer, (C) imposes conditions to the Offer in addition to the Offer Conditions,
or (D) except as otherwise permitted by the Merger Agreement, extends the
Expiration Date of the Offer beyond the initial Expiration Date of the Offer.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE OFFER PRICE FOR TENDERED
SHARES OF OPTICNET COMMON STOCK, REGARDLESS OF ANY EXTENSION OF OR AMENDMENT TO
THE OFFER OR ANY DELAY IN PAYING FOR ANY SHARES.
If by 12:00 midnight, New York City time, on September 15, 2003 (or by any
other time and date then scheduled as the Expiration Date of the Offer), any or
all of the Offer Conditions have not been satisfied or waived, subject to the
terms of the Merger Agreement and the applicable rules and regulations of the
Securities and Exchange Commission, the Purchaser may (i) subject to the
qualification described in the immediately preceding paragraph of this Offer to
Purchase with respect to the Minimum Condition, waive all of the conditions to
the Offer that remain unsatisfied and accept for payment and pay for all shares
of OpticNet common stock that have been validly tendered and not withdrawn prior
to the Expiration Date of the Offer, (ii) extend the Offer and, subject to the
right of holders of shares of OpticNet common stock previously tendered to
withdraw such tendered shares at any time prior to the Expiration Date of the
Offer, retain all of the shares that have been previously tendered and not
withdrawn during the period or periods for which the Offer is extended, (iii)
subject to the qualifications described in the immediately preceding paragraph
of this Offer to Purchase, amend the Offer or (iv) terminate the Offer in
accordance with the
15
Merger Agreement, not accept for payment or pay for any shares of OpticNet
common stock and return all previously tendered shares to the owners of such
shares.
The rights reserved by the Purchaser described in the two preceding
paragraphs are in addition to its rights pursuant to Section 15 (Certain
Conditions to the Offer) of this Offer to Purchase. Any extension of the Offer,
waiver of conditions to the Offer, amendment to the Offer or termination will be
followed as promptly as practicable by a public announcement thereof. An
announcement in the case of an extension will be made no later than 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
Expiration Date of the Offer. Without limiting the manner in which the Purchaser
may choose to make any public announcement, subject to applicable law (including
Rules 13e-3, 14d-4(d), 14d-6(c) and 14e-1 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), which require that material changes be
promptly disseminated to holders of shares of OpticNet common stock), the
Purchaser will have no obligation to publish, advertise or otherwise communicate
any such public announcement other than by issuing a release to the PR Newswire
and/or Dow Xxxxx news services. The phrase "business day" as used in this
paragraph has the meaning set forth in Rule 14d-1 under the Exchange Act.
In the event that the Purchaser makes a material change in the terms of the
Offer or the information concerning the Offer, or waives a material condition to
the Offer, the Purchaser will disseminate additional tender offer materials and
extend the Offer to the extent required by Rules 13e-3, 14d-4(d), 14d-6(c) and
14e-1 under the Exchange Act. The minimum period during which the Offer must
remain open following a material change 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 ten business days is generally required
under the applicable rules and regulations of the Securities and Exchange
Commission to allow for adequate dissemination to stockholders.
Under Rule 14d-11 of the Exchange Act and subject to the conditions
described in the following paragraph of this Offer to Purchase, the Purchaser
may elect to provide for a subsequent offering period, immediately following the
Expiration Date of the Offer, of not fewer than three business days nor more
than twenty business days in length. If provided, a subsequent offering period
would be an additional period of time, following the Expiration Date of the
Offer and the acceptance for payment of, and the payment for, any shares of
OpticNet common stock that are validly tendered in the Offer and not withdrawn
prior to the Expiration Date of the Offer, during which holders of shares of
OpticNet common stock that were not previously tendered in the Offer may tender
such shares to the Purchaser in exchange for the Offer Price on the same terms
that applied to the Offer. A subsequent offering period is not the same as an
extension of the Offer, which will have been previously completed if a
subsequent offering period is provided. The Purchaser will accept for payment,
and pay for, any shares of OpticNet common stock that are validly tendered to
the Purchaser during a subsequent offering period, if provided, as promptly as
practicable after any such shares are validly tendered to the Purchaser during
such subsequent offering period, for the same price paid to holders of shares of
OpticNet common stock that were validly tendered in the Offer and not withdrawn
prior to the Expiration Date of the Offer, net to the holders thereof in cash.
Holders of shares of OpticNet common stock that are validly tendered to the
Purchaser during a subsequent offering period, if provided, will not have the
right to withdraw such tendered shares.
Under Rule 14d-11 of the Exchange Act, the Purchaser may provide for a
subsequent offering period so long as, among other things, (i) the initial
twenty business day period of the Offer has expired, (ii) the Purchaser offers
the same form and amount of consideration for shares of OpticNet common stock in
the subsequent offering period that was offered in the Offer, (iii) the
Purchaser immediately accepts and promptly pays for all shares of OpticNet
common stock that are validly tendered to the Purchaser and not withdrawn prior
to the Expiration Date of the Offer, (iv) the Purchaser announces the results of
the Offer, including the approximate number and percentage of shares of OpticNet
common stock that were validly tendered in the Offer, no later than 9:00 a.m.,
New York City time, on the next business day after the Expiration Date of the
Offer and immediately begins the subsequent offering period and (v) the
Purchaser immediately accepts and
16
promptly pays for shares of OpticNet common stock as they are tendered during
the subsequent offering period.
THE PURCHASER DOES NOT CURRENTLY INTEND TO PROVIDE FOR A SUBSEQUENT
OFFERING PERIOD FOLLOWING THE EXPIRATION OF THE OFFER, ALTHOUGH IT RESERVES THE
RIGHT TO DO SO IN ITS SOLE DISCRETION.
OpticNet has provided the Purchaser with a list and security position
listings of OpticNet's stockholders for the purpose of disseminating the Offer
to holders of shares of OpticNet common stock. This Offer to Purchase and the
Letter of Transmittal enclosed with this Offer to Purchase and other materials
related to the Offer will be mailed to record holders of shares of OpticNet
common stock, and will be furnished to brokers, dealers, banks, trust companies
and other nominees whose names, or the names of whose nominees, appear on the
list of OpticNet's stockholders, or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of shares of OpticNet common stock.
5. PROCEDURES FOR TENDERING SHARES OF OPTICNET COMMON STOCK IN THE OFFER
VALID TENDER
For a stockholder to validly tender shares of OpticNet common stock in the
Offer:
- the certificate(s) representing the tendered shares, together with the
Letter of Transmittal (or a facsimile copy of it), properly completed and
duly executed, together with any required signature guarantees (as
described below under the caption "Signature Guarantees") and any other
required documents, must be received by the Depositary at one of its
addresses listed on the back cover of this Offer to Purchase prior to the
Expiration Date of the Offer;
- in the case of a tender effected pursuant to the book-entry transfer
procedures described below under the caption "Book-Entry Transfer", (i)
either the Letter of Transmittal, properly completed and duly executed,
together with any required signature guarantees (as described below under
the caption "Signature Guarantees"), or an Agent's Message (as described
below under the caption "Book-Entry Transfer"), and any other required
documents, must be received by the Depositary at one of its addresses
listed on the back cover of this Offer to Purchase prior to the
Expiration Date of the Offer and (ii) the shares to be tendered must be
delivered pursuant to the book-entry transfer procedures described below
under the caption "Book-Entry Transfer," and a Book-Entry Confirmation
(as described below under the caption "Book-Entry Transfer") must be
received by the Depositary prior to the Expiration Date of the Offer; or
- the tendering stockholder must comply with the guaranteed delivery
procedures described below under the caption "Guaranteed Delivery" prior
to the Expiration Date of the Offer.
The valid tender of shares of OpticNet common stock in accordance with one
of the procedures described above will constitute a binding agreement between
the tendering stockholder and the Purchaser upon the terms of and subject to the
conditions to the Offer.
The method of delivery of shares of OpticNet common stock to be tendered in
the Offer, the Letter of Transmittal and all other required documents, including
delivery through the Book-Entry Transfer Facility described below, is at the
election and risk of the tendering stockholder. Shares of OpticNet common stock
to be tendered in the Offer will be deemed delivered only when actually received
by the Depositary (including, in the case of a Book-Entry Transfer, by
Book-Entry Confirmation described below). If delivery of shares is made by mail,
registered mail with return receipt requested, properly insured, is recommended.
In all cases, sufficient time should be allowed to ensure timely delivery.
BOOK-ENTRY TRANSFER
The Depositary will, if deemed necessary, establish an account with respect
to the shares of OpticNet common stock at The Depository Trust Company (the
"Book-Entry Transfer Facility") for purposes of the Offer within two business
days after the date of this Offer to Purchase. Any financial institution that is
a participant of the Book-Entry Transfer Facility's system may effect a
book-entry delivery of shares of
17
OpticNet common stock in the Offer by causing the Book-Entry Transfer Facility
to transfer such shares into the Depositary's account in accordance with the
Book-Entry Transfer Facility's procedures for such transfer. The confirmation of
a book-entry transfer of shares into the Depositary's account at the Book-Entry
Transfer Facility as described above is sometimes referred to in this Offer to
Purchase as a "Book-Entry Confirmation." The term "Agent's Message" as used in
this Offer to Purchase means a message, transmitted by the Book-Entry Transfer
Facility to, and received by, the Depositary and forming a part of a Book-Entry
Confirmation, which states that (i) the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the shares of OpticNet common stock that such
participant has received, (ii) the participant agrees to be bound by the terms
of the Letter of Transmittal and (iii) the Purchaser may enforce such agreement
against such participant.
Although delivery of shares of OpticNet common stock may be effected
through book-entry transfer into the Depositary's account at the Book-Entry
Transfer Facility, the Letter of Transmittal enclosed with this Offer to
Purchase (or a facsimile copy of it), properly completed and duly executed,
together with any required signature guarantees (as described below under the
caption "Signature Guarantees"), or an Agent's Message (as described above), and
any other required documents, must be received by the Depositary at one of its
addresses listed on the back cover of this Offer to Purchase prior to the
Expiration Date of the Offer to effect a valid tender of shares by book-entry.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
SIGNATURE GUARANTEES
No signature guarantee is required on the Letter of Transmittal that is
being returned with shares of OpticNet common stock being tendered in the Offer
if (i) the Letter of Transmittal is signed by the registered holder(s) of the
shares of OpticNet common stock tendered with such Letter of Transmittal, unless
such registered holder(s) has completed either the box labeled Special Payment
Instructions or the box labeled Special Delivery Instructions on such Letter of
Transmittal or (ii) shares of OpticNet common stock are tendered for the account
of a financial institution (including most banks, savings and loan associations
and brokerage houses) that is a participant in the Security Transfer Agent's
Medallion Program, Nasdaq Stock Market Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program or by any other eligible guarantor
institution, as such term is defined in Rule 17Ad-15 under the Exchange Act
(which are sometimes referred to as "Eligible Institutions" in this Offer to
Purchase). For purposes of the foregoing, a registered holder of shares of
OpticNet common stock includes any participant in the Book-Entry Transfer
Facility's system whose name appears on a security position listing as the owner
of such shares. In all other cases, all signatures on the Letter of Transmittal
that is being returned with shares of OpticNet common stock being tendered in
the Offer must be guaranteed by an Eligible Institution. See Instructions 1 and
5 to the Letter of Transmittal enclosed with this Offer to Purchase for more
information. If certificates representing shares of OpticNet common stock being
tendered in the Offer are registered in the name of a person other than the
signer of the Letter of Transmittal that is being returned with such shares, or
if payment is to be made or certificates representing shares of OpticNet common
stock not being tendered or not accepted for payment are to be returned to a
person other than the registered holder of the certificates surrendered, the
tendered certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on such certificates, with the signatures on such
certificates or stock powers guaranteed as aforesaid. See Instructions 1 and 5
to the Letter of Transmittal enclosed with this Offer to Purchase for more
information.
GUARANTEED DELIVERY
If a stockholder desires to tender shares of OpticNet common stock in the
Offer and such stockholder's certificates representing such shares are not
immediately available, or the book-entry transfer procedures described above
under the caption "Book-Entry Transfer" cannot be completed on a timely basis,
or time will
18
not permit all required documents to reach the Depositary prior to the
Expiration Date of the Offer, such stockholder may tender such shares of
OpticNet common stock if all the following conditions are met:
- such tender is made by or through an Eligible Institution (as described
above under the caption "Signature Guarantees");
- a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form enclosed with this Offer to Purchase, is
received by the Depositary at one of its addresses listed on the back
cover of this Offer to Purchase prior to the Expiration Date of the
Offer; and
- either (i) the certificates representing tendered shares of OpticNet
common stock being tendered in the Offer, together with the Letter of
Transmittal enclosed with this Offer to Purchase (or facsimile copy of
it), properly completed and duly executed, and any required signature
guarantees (as described above under the caption "Signature Guarantees"),
and any other required documents, are received by the Depositary at one
of its addresses listed on the back cover of this Offer to Purchase
within three trading days (as described below) after the date of
execution of such Notice of Guaranteed Delivery or (ii) in the case of a
book-entry transfer effected pursuant to the book-entry transfer
procedures described above under the caption "Book-Entry Transfer," (1)
either the Letter of Transmittal enclosed with this Offer to Purchase (or
facsimile copy of it), properly completed and duly executed, and any
required signature guarantees (as described above under the caption
"Signature Guarantees"), or an Agent's Message (as described above under
the caption "Book-Entry Transfer"), and any other required documents, is
received by the Depositary at one of its addresses listed on the back
cover of this Offer to Purchase and (2) such shares are delivered
pursuant to the book-entry transfer procedures described above under the
caption "Book-Entry Transfer" and a Book-Entry Confirmation (as described
above under the caption "Book-Entry Transfer") is received by the
Depositary, in each case within three trading days after the date of
execution of such Notice of Guaranteed Delivery. For purposes of the
foregoing, a trading day is any day on which The Nasdaq National Market
is open for business.
The Notice of Guaranteed Delivery described above may be delivered by hand
or transmitted by telegram, facsimile transmission or mail to the Depositary,
and must include a guarantee by an Eligible Institution (as described above
under the caption "Signature Guarantees") in the form set forth in such Notice
of Guaranteed Delivery. 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.
The method of delivery of share certificates, the Letter of Transmittal and
all other required documents is at the option and risk of the tendering
stockholder, and delivery will be made only when actually received by the
Depositary.
OTHER REQUIREMENTS
Notwithstanding any provision hereof, in all cases payment for shares of
OpticNet common stock that are accepted for payment in the Offer will be made
only after timely receipt by the Depositary of the following:
- certificates for such shares, or a timely Book-Entry Confirmation (as
described above under the caption "Book-Entry Transfer") with respect to
such shares;
- the Letter of Transmittal enclosed with this Offer to Purchase (or a
facsimile copy of it), properly completed and duly executed, with any
required signature guarantees (as described above under the caption
"Signature Guarantees"), or in the case of a Book-Entry Transfer, an
Agent's Message in lieu of the Letter of Transmittal, as described above
under the caption "Book-Entry Transfer"); and
- any other documents required by the Letter of Transmittal.
Accordingly, tendering stockholders may be paid at different times
depending upon when certificates for shares of OpticNet common stock being
tendered in the Offer or Book-Entry Confirmations with respect to shares of
OpticNet common stock being tendered in the Offer are actually received by the
Depositary.
19
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID BY THE PURCHASER ON THE OFFER
PRICE PAYABLE IN RESPECT OF SHARES OF OPTICNET COMMON STOCK BEING TENDERED IN
THE OFFER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
APPOINTMENT
By executing and returning the Letter of Transmittal enclosed with this
Offer to Purchase (or a facsimile copy of it), or in the case of a book-entry
transfer, by delivery of an Agent's Message in lieu of the Letter of Transmittal
as described above under the caption "Book-Entry Transfer," a stockholder
tendering shares of OpticNet common stock in the Offer will be irrevocably
appointing designees of the Purchaser as such stockholder's attorneys-in-fact
and proxies in the manner described in the Letter of Transmittal, each with full
power of substitution, to the full extent of such stockholder's rights with
respect to the shares of OpticNet common stock being tendered by such
stockholder and accepted for payment by the Purchaser and with respect to any
and all other shares of OpticNet common stock or other securities or rights
issued or issuable in respect of such shares on or after the date of this Offer
to Purchase. All such proxies will be considered coupled with an interest in the
shares of OpticNet common stock being tendered. Such appointment will be
effective when, and only to the extent that, the Purchaser accepts for payment
the shares of OpticNet common stock being tendered by such stockholder as
provided in this Offer to Purchase. Upon the effectiveness of such appointment,
all prior powers of attorney, proxies and consents given by such stockholder
with respect to such shares of OpticNet common stock or other securities or
rights will, without further action, be revoked and no subsequent powers of
attorney, proxies, consents or revocations may be given (and, if given, will not
be effective). The designees of the Purchaser will thereby be empowered to
exercise all voting and other rights with respect to such shares of OpticNet
common stock and other securities or rights in respect of any annual, special or
adjourned meeting of OpticNet's stockholders, actions by written consent in lieu
of any such meeting or otherwise, as they in their sole discretion deem proper.
The Purchaser reserves the right to require that, in order for shares of
OpticNet common stock to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment of such shares, the Purchaser must be able to
exercise full voting, consent and other rights with respect to such shares and
other securities or rights, including voting at any meeting of stockholders.
DETERMINATION OF VALIDITY
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any tender of shares of OpticNet common stock in the
Offer will be determined by the Purchaser in its sole discretion, which
determination will be final and binding. The Purchaser reserves the absolute
right to reject any or all tenders of shares of OpticNet common stock determined
by it not to be in proper form or the acceptance for payment of or payment for
which may, in the opinion of the Purchaser, be unlawful. The Purchaser also
reserves the absolute right to waive any defect or irregularity in the tender of
any shares of OpticNet common stock of any particular stockholder, whether or
not similar defects or irregularities are waived in the case of other
stockholders. No tender of shares of OpticNet common stock in the Offer will be
deemed to have been validly made until all defects or irregularities relating
thereto have been cured or waived. None of the Purchaser, BEI, OpticNet, the
Depositary, the Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification. The Purchaser's
interpretation of the terms and conditions of the Offer (including the Letter of
Transmittal and the instructions thereto and any other documents related to the
Offer) will be final and binding.
BACKUP WITHHOLDING
In order to avoid backup withholding of United States federal income tax on
payments of cash in connection with the Offer, a stockholder whose shares of
OpticNet common stock are accepted for payment in the Offer who is a U.S.
citizen or a U.S. resident alien must, unless an exemption applies, provide the
Depositary with such stockholder's correct taxpayer identification number on a
Substitute Form W-9 and certify under penalty of perjury that such taxpayer
identification number is correct and that such stockholder is
20
not subject to backup withholding. If a stockholder does not provide such
stockholder's correct taxpayer identification number or fails to provide the
certifications described above, the United States Internal Revenue Service may
impose a penalty on such stockholder and the payment of cash to such stockholder
in connection with the Offer may be subject to backup withholding at a rate of
28%. All stockholders tendering shares of OpticNet common stock in the Offer
should complete and sign the main signature form and the Substitute Form W-9
included as part of the Letter of Transmittal enclosed with this Offer to
Purchase to provide the information and certification necessary to avoid backup
withholding (unless an applicable exemption exists and is proved in a manner
satisfactory to the Purchaser and the Depositary). Certain stockholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Stockholders who are not U.S.
citizens or U.S. resident aliens should complete, sign and return to the
Depositary the main signature form and a Form W-8BEN, Certificate of Foreign
Status of Beneficial Owner for United States Tax Withholding, copies of which
may be obtained by contacting the Depositary, to provide the information and
certification necessary to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal enclosed with this Offer to Purchase.
6. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 6, tenders of shares of
OpticNet common stock in the Offer are irrevocable. Shares of OpticNet common
stock that are tendered in the Offer may be withdrawn pursuant to the procedures
described below at any time prior to the Expiration Date of the Offer and shares
that are tendered may also be withdrawn at any time after September 15, 2003
unless accepted for payment on or before that date as provided in this Offer to
Purchase. In the event that the Purchaser provides for a subsequent offering
period following the successful completion of the Offer, (i) no withdrawal
rights will apply to shares tendered during such subsequent offering period and
(ii) no withdrawal rights will apply to shares that were previously tendered in
the Offer and accepted for payment.
For a withdrawal of shares of OpticNet common stock previously tendered in
the Offer to be effective, a written or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses
listed on the back cover of this Offer to Purchase, specifying the name of the
person having tendered the shares to be withdrawn, the number of shares to be
withdrawn and the name of the registered holder of the shares to be withdrawn,
if different from the name of the person who tendered the shares. If
certificates for shares have been delivered or otherwise identified to the
Depositary, then, prior to the physical release of such certificates, the serial
numbers shown on such certificates must be submitted to the Depositary and,
unless such shares have been tendered by an Eligible Institution, any and all
signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution. If shares have been tendered pursuant to the book-entry transfer
procedures described in Section 5 of this Offer to Purchase, any notice of
withdrawal must also specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn shares and
otherwise comply with the Book-Entry Transfer Facility's procedures.
All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by the Purchaser in its sole
discretion, which determination will be final and binding. None of the
Purchaser, BEI, OpticNet, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
Withdrawals of shares of OpticNet common stock may not be rescinded. Any
shares withdrawn will thereafter be deemed not have to been validly tendered for
purposes of the Offer. However, withdrawn shares may be re-tendered at any time
prior to the Expiration Date of the Offer by following one of the procedures
described in Section 5 hereof.
7. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES OF OPTICNET COMMON STOCK
On the terms of and subject to the conditions to the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), promptly after the Expiration Date of the Offer, the Purchaser
will accept for payment, and will pay for, all shares of OpticNet common stock
21
validly tendered to the Purchaser in the Offer and not withdrawn prior to the
Expiration Date of the Offer. Subject to the terms of the Merger Agreement, the
Purchaser expressly reserves the right, in its sole discretion, to delay
acceptance for payment of or the payment for shares of OpticNet common stock
that are tendered in the Offer in order to comply in whole or in part with any
applicable law. Any such delays will be effected in compliance with Rule
14e-1(c) under the Exchange Act (relating to a bidder's obligation to pay for or
return tendered securities promptly after the termination or withdrawal of such
bidder's offer).
In all cases, payment for shares of OpticNet common stock that are accepted
for payment in the Offer will be made only after timely receipt by the
Depositary of:
- the certificates representing such shares, together with the Letter of
Transmittal enclosed with this Offer to Purchase (or a facsimile copy of
it), properly completed and duly executed, and any required signature
guarantees (as described in Section 5 (Procedures for Tendering Shares of
OpticNet Common Stock in the Offer) of this Offer to Purchase under the
caption "Signature Guarantees"); or
- in the case of a transfer effected pursuant to the book-entry transfer
procedures as described in Section 5 (Procedures for Tendering Shares of
OpticNet Common Stock in the Offer) of this Offer to Purchase under the
caption "Book-Entry Transfer" a Book-Entry Confirmation and either the
Letter of Transmittal enclosed with this Offer to Purchase (or a
facsimile copy of it), properly completed and duly executed, and any
required signature guarantees (as described in Section 5 of this Offer to
Purchase under the caption "Signature Guarantees") or an Agent's Message,
and any other required documents.
Accordingly, stockholders tendering shares of OpticNet common stock in the
Offer may be paid at different times depending upon when certificates for shares
or Book-Entry Confirmations with respect to shares are actually received by the
Depositary.
The per share consideration paid to any stockholder in the Offer will be
the highest per share consideration paid to any other stockholder in the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, shares of OpticNet common stock that are
validly tendered in the Offer and not withdrawn prior to the Expiration Date of
the Offer as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such shares. On the
terms of and subject to the conditions to the Offer, payment for shares of
OpticNet common stock that are accepted for payment in the Offer will be made by
deposit of the purchase price therefor with the Depositary, which will act as an
agent for stockholders tendering shares in the Offer for the purpose of
receiving payment from the Purchaser and transmitting payment to such
stockholders whose shares of OpticNet common stock have been accepted for
payment in the Offer.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE OFFER PRICE FOR SHARES
OF OPTICNET COMMON STOCK THAT ARE TENDERED IN THE OFFER, REGARDLESS OF ANY
EXTENSION OF, OR AMENDMENT TO, THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES.
If the Purchaser is delayed in its acceptance for payment of, or payment
for, shares of OpticNet common stock that are tendered in the Offer, or is
unable to accept for payment, or pay for, shares that are tendered in the Offer
for any reason, then, without prejudice to the Purchaser's rights under the
Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act
(relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer) and the
terms of the Merger Agreement), the Depositary may, nevertheless, on behalf of
the Purchaser, retain shares of OpticNet common stock that are tendered in the
Offer, and such shares may not be withdrawn except to the extent that
stockholders tendering such shares are entitled to do so as described in Section
6 (Withdrawal Rights) of this Offer to Purchase.
If any shares of OpticNet common stock that are tendered in the Offer are
not accepted for payment pursuant to the terms and conditions of the Offer for
any reason, the certificates for such shares will be returned (and, if
certificates are submitted for more shares than are tendered, new certificates
for the shares
22
not tendered will be sent) in each case without expense to the stockholder
tendering such shares (or, in the case of shares delivered by book-entry
transfer of such shares into the Depositary's account at the Book-Entry Transfer
Facility pursuant to the book-entry transfer procedures, such shares will be
credited to an account maintained at the Book-Entry Transfer Facility), as
promptly as practicable after the expiration or termination of the Offer.
8. TRADING MARKET AND PRICE OF SHARES OF OPTICNET COMMON STOCK
Because there are transfer restrictions on OpticNet common stock contained
in OpticNet's bylaws and there is no authorized public trading market for
OpticNet common stock, there is no readily ascertainable market value for
OpticNet common stock. American Appraisal Associates, which acted as the
financial advisor to OpticNet's board of directors, delivered an opinion to
OpticNet's board of directors, dated July 1, 2003, to the effect that, as of
that date, based upon and subject to the assumptions made, the procedures
followed, other matters considered and the limitations of the review undertaken
in its opinion, the Offer Price to be paid to tendering stockholders in the
Offer and to be paid to holders of OpticNet common stock in the Merger was fair,
from a financial point of view, to the holders of shares of OpticNet common
stock. Stockholders of OpticNet are urged to, and should, carefully read
OpticNet's Solicitation/Recommendation Statement on Schedule 14D-9 and the
opinion of American Appraisal Associates in their entirety.
9. EFFECT OF THE OFFER ON THE MARKET FOR OPTICNET COMMON STOCK; EXCHANGE ACT
REGISTRATION OF OPTICNET COMMON STOCK
EFFECT OF THE OFFER ON THE MARKET FOR OPTICNET COMMON STOCK
There is not currently a public market for OpticNet's common stock.
Currently, OpticNet's common stock is subject to significant transfer
restrictions set forth in OpticNet's bylaws. In particular, apart from
limitations on transfer created by applicable securities laws, OpticNet's bylaws
expressly forbid holders of OpticNet's common stock from assigning,
hypothecating, donating, encumbering or otherwise disposing of any beneficial
interest in their shares until OpticNet's common stock has been listed for
trading with a nationally recognized securities exchange or automated quotation
system. Due to these transfer restrictions, there is currently no liquidity for
OpticNet common stock. These transfer restrictions will be lifted with respect
to shares tendered in the Offer.
EXCHANGE ACT REGISTRATION OF OPTICNET COMMON STOCK
OpticNet common stock is currently registered under the Exchange Act. Such
registration may be terminated upon application of OpticNet to the Securities
and Exchange Commission if shares of OpticNet common stock are not held by 300
or more holders of record. Termination of registration of shares of OpticNet
common stock under the Exchange Act would reduce the information required to be
furnished by OpticNet to its stockholders and to the Securities and Exchange
Commission and would make certain provisions of the Exchange Act no longer
applicable to OpticNet, such as the short-swing profit recovery provisions of
Section 16(b) of the Exchange Act, the requirement of furnishing a proxy or
information statement pursuant to sections 14(a) and 14(c) of the Exchange Act
in connection with meetings of OpticNet's stockholders and the related
requirement of furnishing an annual report to OpticNet's stockholders, and the
requirements of Rule 13e-3 under the Exchange Act with respect to going private
transactions. Furthermore, the ability of affiliates of OpticNet and persons
holding restricted securities of OpticNet to dispose of such securities pursuant
to Rule 144 or 144A promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), may be impaired or eliminated if OpticNet common stock
is no longer registered under the Exchange Act. The Purchaser intends to seek to
cause OpticNet to apply for termination of registration of OpticNet common stock
under the Exchange Act as soon after the successful completion of the Offer as
the requirements for such termination are met.
23
MARGIN REGULATIONS
Because OpticNet's common stock is subject to significant transfer
restrictions and there is no public market for OpticNet's common stock, OpticNet
common stock does not constitute margin securities for the purposes of the
margin regulations of the Federal Reserve Board and therefore cannot be used as
collateral for loans made by brokers.
10. CERTAIN INFORMATION CONCERNING OPTICNET
GENERAL
OpticNet is a Delaware corporation with its principal offices located at
Xxx Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000. OpticNet's
telephone number at that address is (000) 000-0000. OpticNet is a development
stage company that aspires to design and manufacture optical components used to
interconnect, switch, attenuate and otherwise manage optical signals in fiber
optic circuits. OpticNet's products are being developed for use in broadband
telecommunications networks. Virtually all of its products developed to date are
based on micro electromechanical structures (MEMS) made from monocrystalline
silicon, a material similar to that used to manufacture electronic
microcircuits.
OpticNet was incorporated in February 2000 in Delaware as a majority-owned
subsidiary of BEI to extend proprietary MEMS production processes developed by
BEI to the field of optical networks. In November 2000, OpticNet was separated
from BEI in order to focus exclusively on the commercialization of MEMS
technology for optical telecommunications applications. OpticNet was established
as a separate company by BEI's distribution to its stockholders of approximately
42% of OpticNet's outstanding securities at the time of the distribution, with
BEI retaining approximately 24% of OpticNet's outstanding securities and the
remainder of OpticNet's securities continuing to be held by contributing
founders. At the time of OpticNet's separation from BEI certain MEMS-based
proprietary product designs were transferred to OpticNet and it was granted
exclusive, worldwide, royalty-free and perpetual rights to utilize BEI's
proprietary MEMS-based processing technologies in the manufacture of OpticNet's
products for the telecommunications market. In recognition of OpticNet's early
stage of development, immediately prior to its separation from BEI, OpticNet
imposed transfer restrictions on its common stock and accordingly there is
presently no authorized public trading market for our securities. OpticNet
continues to have significant intercompany arrangements with BEI, as describe
more fully in Section 13 (Background of the Offer).
AVAILABLE INFORMATION
OpticNet is subject to the informational requirements of the Exchange Act
and, in accordance therewith, is required to file reports and other information
with the Securities and Exchange Commission relating to its business, financial
condition and other matters. Certain information as of particular dates
concerning OpticNet's directors and executive officers, their remuneration,
stock options and other matters, the principal holders of OpticNet's securities
and any material interest of such persons in transactions with OpticNet is
required to be disclosed in OpticNet's annual reports on Form 10-K filed with
the Securities and Exchange Commission. Such reports and other information is
available for inspection at the public reference facilities of the Securities
and Exchange Commission at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Copies of such information is obtainable, by mail, upon payment of the
Securities and Exchange Commission's customary charges, by writing to the
Securities and Exchange Commission's principal office at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000. The Securities and Exchange Commission also maintains a
web site on the Internet at xxxx://xxx.xxx.xxx that contains reports, proxy and
information statements and other information regarding registrants that are
filed electronically with the Securities and Exchange Commission.
Except as otherwise stated in this Offer to Purchase, the information
concerning OpticNet contained in this Offer to Purchase has been taken from or
based upon publicly available documents on file with the Securities and Exchange
Commission and other publicly available information. Although the Purchaser and
BEI do not have any knowledge that any such information is untrue, neither the
Purchaser nor BEI takes any responsibility for the accuracy or completeness of
such information or for any failure by OpticNet to disclose events that may have
occurred and may affect the significance or accuracy of any such information.
24
11. CERTAIN INFORMATION CONCERNING THE PURCHASER AND BEI
The Purchaser is a Delaware corporation and a wholly owned subsidiary of
BEI. The Purchaser was organized by BEI to acquire OpticNet and has not
conducted any unrelated activities since its organization. All outstanding
shares of capital stock of the Purchaser are owned by BEI. The principal office
of the Purchaser is located at the same address as BEI's principal office listed
below, and its telephone number at that address is the same telephone number as
BEI's telephone number listed below.
BEI is a Delaware corporation with its principal office located at Xxx Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000. BEI's telephone number
at that address is (000) 000-0000. The principal business and operations of BEI
are conducted within one business segment and are carried out by operations
which design, manufacture and sell electronic devices that provide vital sensory
input and actuation for the control systems of advanced machinery and automation
systems. Sensors designed and manufactured by Technologies, most of which are
concerned with physical motion, provide information that is essential to
logical, safe and efficient operation of sophisticated machinery. BEI also
develops and produces motors and actuators, which are the prime movers in high
performance machinery.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history of each of the directors and
executive officers of the Purchaser and BEI are listed in Schedule I to this
Offer to Purchase.
During the last five years, none of the Purchaser, BEI or, to the best
knowledge of the Purchaser and BEI, any of the persons listed in Schedule I to
this Offer to Purchase (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) was a party to
any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment, decree or
final order enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a finding of any
violation of such laws.
The following table sets forth certain information regarding the ownership
of shares of OpticNet's common stock as of August 11, 2003 by BEI and each of
the directors and executive officers of the Purchaser and BEI listed in Schedule
I to this Offer to Purchase:
BENEFICIAL OWNERSHIP(1)
--------------------------------
NAME AND ADDRESS NUMBER OF SHARES % OF TOTAL(2)
---------------- ---------------- -------------
BEI(3).................................................. 2,037,613 25.18%
Xxxxxxx Xxxxxxx......................................... 229,468 3.77%
Xxxx X. Xxxxx........................................... 41,496 *
Xxxx XxXxxxxx........................................... 8,137 *
Xxxxxx X. Xxxx.......................................... 11,689 *
Xxxxxx X. Xxxxxxxx...................................... 408,246 6.70%
Xxxxx Xxxx.............................................. 4,161 *
Xxxxxxx X. Xxxxxx....................................... 4,000 *
Xxxxxx X. Xxxxx......................................... 2,900 *
C. Xxxxxx Xxxxxx, Xx.................................... 0 *
Xx. Xxxxxxx X. Xxxxxx, Xx............................... 2,000 *
J. Xxxxx Xxxxxx......................................... 0 *
Xxxx X. Wrench.......................................... 32,979 *
---------------
* Less than one percent.
(1) This table is based on information provided to BEI by OpticNet. Unless
otherwise indicated in the footnotes to this table and subject to community
property laws where applicable, BEI believes that each of the stockholders
named in this table has sole voting and investment power with respect to the
shares indicated as beneficially owned.
25
(2) Applicable percentages are based on 6,092,104 shares of OpticNet common
stock outstanding on August 11, 2003, adjusted as required by the rules
promulgated by the Securities and Exchange Commission.
(3) Includes 2,000,000 shares of OpticNet voting common stock issuable on
conversion of 2,000,000 shares of OpticNet Series A preferred stock held by
BEI and convertible at any time by BEI into share of OpticNet voting common
stock. BEI does not currently plan to convert any of such shares of OpticNet
Series A preferred stock into shares of OpticNet voting common stock prior
to or in connection with the Offer. If the shares of OpticNet Series A
preferred stock held by BEI are ignored for purposes of calculating BEI's
beneficial ownership of OpticNet common stock, BEI beneficially owns 37,613
shares of OpticNet common stock, representing less than 1% of the
outstanding shares of OpticNet common stock.
After reasonable inquiry and to the best knowledge of the Purchaser and
BEI, each director and executive officer of BEI who own shares of OpticNet
common stock intends to tender such shares pursuant to the Offer based on the
conclusion of the Purchaser and BEI that the consideration to be received by the
holders of shares of OpticNet common stock pursuant to the Offer is fair to such
holders.
Except as described in this Offer to Purchase, none of the Purchaser, BEI
or, to the knowledge of the Purchaser and BEI, any of the persons listed in
Schedule I to this Offer to Purchase, or any associate or majority-owned
subsidiary of BEI, the Purchaser or any of the persons listed in Schedule I to
this Offer to Purchase, beneficially owns any equity security of OpticNet, and
none of the Purchaser, BEI or, to the knowledge of the Purchaser and BEI, any of
the other persons or entities referred to above, or any of the respective
directors, executive officers or subsidiaries of any of the foregoing, has
effected any transaction in any equity security of OpticNet during the past 60
days.
Except as described in this Offer to Purchase or the Tender Offer Statement
on Schedule TO filed by BEI with the Securities and Exchange Commission to which
this Offer to Purchase is filed as an exhibit, (i) there have not been any
contacts, transactions or negotiations between the Purchaser or BEI, any of
their respective subsidiaries or, to the knowledge of the Purchaser and BEI, any
of the persons listed in Schedule I to this Offer to Purchase, on the one hand,
and OpticNet or any of its directors, officers or affiliates, on the other hand,
that are required to be disclosed pursuant to the rules and regulations of the
Securities and Exchange Commission and (ii) none of the Purchaser, BEI or, to
the knowledge of the Purchaser and BEI, any of the persons listed on Schedule I
to this Offer to Purchase, has any contract, arrangement, understanding or
relationship with any person with respect to any securities of OpticNet.
12. SOURCE AND AMOUNT OF FUNDS
The Offer is not conditioned on any financing contingencies.
The total amount of funds required by the Purchaser to pay for all
outstanding shares of OpticNet common stock that are tendered in the Offer and
converted into the right to receive cash in the Merger, and to pay all fees and
expenses related to the Offer and the Merger, is estimated to be approximately
$467,700. The Purchaser plans to obtain all funds needed for the Offer and the
Merger through capital contributions that will be made by BEI, either directly
or through one or more wholly owned subsidiaries of BEI, to the Purchaser. BEI
expects to use its cash on hand and cash equivalents to make this contribution.
The Purchaser believes that the financial condition of BEI and its
affiliates is not material to a decision by a holder of shares of OpticNet
common stock whether to tender such shares in the Offer because (i) cash is the
only consideration that will be paid to the holders of OpticNet common stock in
connection with the Offer and the Merger, (ii) the Purchaser is offering to
purchase all of the outstanding shares of OpticNet common stock in the Offer,
(iii) the Offer is not subject to any financing contingencies and (iv) BEI has
sufficient cash on hand and cash equivalents to provide the Purchaser with the
amount of cash consideration payable to holders of OpticNet common stock in the
Offer and the Merger.
26
13. BACKGROUND OF THE OFFER
BEI regularly evaluates different strategies to improve its competitive
position and enhance stockholder value, including opportunities for acquisitions
of other companies or their assets.
OpticNet was incorporated in February 2000 in Delaware as a majority-owned
subsidiary of BEI to extend proprietary MEMS production processes developed by
BEI to the field of optical networks.
During fiscal 2000, BEI made a $1.0 million equity investment in OpticNet
in exchange for the issuance to BEI of 2,000,000 shares of OpticNet's Series A
preferred stock. The equity investment was provided as initial financing with
the expectation that OpticNet would seek additional funding from third parties
in the future.
BEI entered into an intercompany services agreement with OpticNet in
October 2000, under which BEI provides certain administrative services to
OpticNet at a cost of $25,000 per fiscal quarter. During the third quarter of
fiscal 2002, BEI agreed to suspend current and future charges under the
agreement, in light of the inability of OpticNet to obtain outside financing.
At the close of business on October 30, 2000, OpticNet separated from BEI
in order to focus exclusively on the commercialization of MEMS technology for
optical telecommunications applications. OpticNet was established as a separate
company by BEI's distribution to its stockholders of approximately 42% of
OpticNet's outstanding securities at the time of the distribution, with BEI
retaining approximately 24% of OpticNet's outstanding securities and the
remainder of OpticNet's securities continuing to be held by contributing
founders. At the time of OpticNet's separation from BEI, certain MEMS-based
proprietary product designs were transferred to OpticNet and OpticNet was
granted exclusive, worldwide, royalty-free and perpetual rights to utilize BEI's
proprietary MEMS-based processing technologies in the manufacture of products
for the telecommunications market.
During fiscal 2001, BEI agreed to provide OpticNet with a line of credit
established for up to $3.0 million with maturity at December 31, 2002, as
amended. The outstanding principal on the note evidencing the line of credit
bears interest at prime plus 1.5% per annum. The parties intend to extend the
maturity date of the line of credit. The final terms of such an extension would
be determined when, and if, such an extension is consummated. During the fiscal
quarter ended June 29, 2002, BEI suspended the availability of advances to
OpticNet under the line of credit as BEI concluded that the note receivable
totaling $2.7 million in principal amount at such time was uncollectable and
BEI's original investment in OpticNet was impaired. This determination was a
result of OpticNet's inability to attract significant strategic partners or
third party financing necessary to sustain operations.
On September 28, 2001, BEI completed the leasing of research and
development equipment placed in service during the quarter ended September 29,
2001, which had been previously purchased by BEI for $0.7 million. In addition,
on December 20, 2001 and March 28, 2002, BEI executed additional equipment lease
schedules under this agreement to lease equipment similar to that described
above valued at approximately $3.5 million and $2.8 million, respectively. Under
the terms of the lease transaction, BEI sold the equipment and then immediately
leased the equipment from the sole purchaser under a non-cancelable operating
lease with a lease term of three years and an interest rate of approximately
6.9%. BEI entered into an agreement with OpticNet to rent capacity of this
equipment to OpticNet from month to month based on OpticNet's usage of the
equipment beginning in October 2001. In March 2002, OpticNet significantly
reduced operations to support only its current customer base, resulting in lower
use of this equipment.
BEI leases 15,571 square feet of office and manufacturing facilities used
for research and development and manufacturing activities in Hayward,
California, which it originally subleased entirely to OpticNet under an
agreement entered into in October 2001, for an initial term expiring December
2005. During March 2002, OpticNet concluded it was necessary to reduce operating
costs due to its inability to obtain significant strategic partners or third
party financing. The companies both agreed that a reduction in operations would
lower usage of the subleased facilities described above. Beginning March 31,
2002, BEI agreed to prorate the annual lease payments for the space and
equipment from OpticNet, based on the portion of the facilities OpticNet
requires to support its current customers.
27
In the six months ending September 28, 2002, BEI provided an additional
$1.8 million of financing to OpticNet, which was advanced with the intent to
convert such cash advances into additional equity in OpticNet, upon terms to be
decided. Effective September 28, 2002, BEI and OpticNet had determined that
OpticNet would authorize and issue to BEI a series of nonvoting preferred stock.
In November 2002, OpticNet issued a total of 18,146,420 shares of nonvoting and
nonconvertible Series B preferred stock to BEI, in consideration of the $1.8
million advanced during the third and fourth quarters of fiscal 2002.
During the months of November and December, 2002, OpticNet's management
reevaluated OpticNet's business outlook and available financing. OpticNet's
management explored with its outside legal counsel the alternatives and issues
regarding a possible shutdown or discontinuation of business. OpticNet's
management commissioned American Appraisal Associates to conduct an appraisal of
OpticNet's intellectual property.
On December 17, 2002, Xxxx Wrench, OpticNet's Chief Financial Officer,
initiated a request for a meeting of the OpticNet board of directors to discuss
forward planning and financial alternatives.
On January 23, 2003, OpticNet's board of directors, absent Chairman
Xxxxxxxx Xxx who was on an extended overseas trip, met informally to consider
"where do we go from here." The OpticNet's board's consensus was that current
conditions in the telecommunications industry are unlikely to improve soon and
the outlook for obtaining new investors remained very poor. The cost of
remaining a public company was noted and it was observed that OpticNet's current
and foreseeable scope of operations was more appropriate to being a product line
of a large company than a stand-alone company. The difficulty of attracting
alliances with other companies was noted because of the close linkage between
OpticNet's physical plant and BEI. Following the discussion, the Board
encouraged Mr. Wrench to explore with BEI its possible interest in making a
tender offer for OpticNet that would enable a merger with BEI. Mr. Wrench
reviewed the outcome of the informal meeting with Chairman Xxxxxxxx Xxx upon his
return. Dr. Wan supported the recommendation of the other board members.
In late January, 2003, Mr. Wrench explored interest in a tender
offer/merger with BEI management and its Chairman, Xxxxxxx Xxxxxxx.
From February 6 through February 11, 2003, Xx. Xxxxxxx formed a committee
of independent directors of the board of directors of BEI to consider a possible
merger with or other acquisition transaction concerning OpticNet. Xx. Xxxxxxx
requested that Mr. Wrench supply information about OpticNet to this committee.
Mr. Wrench sent material on February 6 and February 11, 2003.
On February 20, 2003, OpticNet received a list of common shareholders from
its transfer agent and management prepared an analysis of prospective sources of
shares necessary to successfully complete a tender offer/merger. This
information was forwarded to the BEI committee of independent directors.
On March 5, 2003, the BEI board of directors received a report from its
independent committee of directors recommending that negotiations proceed
regarding the tender offer/merger with OpticNet. Based on recommendation from
BEI's committee of independent directors, an offer of $0.03 per share and other
preliminary terms were approved. BEI management was directed to communicate this
offer to OpticNet and the BEI independent committee of directors was asked to
engage in any ongoing negotiations with OpticNet.
On March 6, 2003, Dr. Wan was informally told of the results of the meeting
of the board of directors of BEI.
On March 7, 2003, Dr. Wan convened a committee of two directors of OpticNet
to evaluate the BEI offer and to negotiate with the BEI committee of independent
directors. Messrs. Joslyn and Xxxxxx were judged the most nearly independent
directors possible to field from OpticNet's small board.
On March 13, 2003, Xxxx XxXxxxxx, Senior Vice President and Chief Financial
Officer of BEI, sent a letter on behalf of BEI to OpticNet's board of directors
formally confirming to the OpticNet board of directors that BEI was interested
in acquiring those shares of OpticNet's common stock that were not currently
owned by BEI. BEI was contemplating offering a cash price of $0.03 per share of
OpticNet's common stock.
28
On March 14, 2003, OpticNet's board of directors officially confirmed the
formation of the special committee and appointment of the OpticNet special
committee members and heard their preliminary report of negotiations with the
BEI committee of independent directors.
On March 24, 2003, BEI filed a Schedule 13D stating that as of March 13,
2003, BEI beneficially owned 2,037,613 shares of the common stock of OpticNet
(including 2,000,000 shares of OpticNet's common stock that are issuable on the
conversion of 2,000,000 shares of OpticNet's Series A preferred stock) (the
"Shares"). These Shares, reported as being beneficially owned by BEI, were
acquired by BEI (i) as to the 2,000,000 shares of OpticNet's Series A preferred
stock, through the payment of $1,000,000, at a split-adjusted purchase price of
$0.50 per share and (ii) as to the 37,613 shares of OpticNet's common stock,
through the retention of the aggregate of fractional shares resulting from the
distribution of shares of OpticNet's common stock to the stockholders of BEI on
October 30, 2000. BEI may be deemed to own beneficially approximately 25.2% of
the common stock of OpticNet, which percentage is calculated based upon
8,092,104 shares of common stock outstanding as of December 28, 2002, as
reported in OpticNet's Form 10-Q filed with the Securities and Exchange
Commission on February 11, 2003, including the outstanding shares of Series A
preferred stock convertible into common stock.
In the six months ended March 29, 2003, BEI provided approximately $0.7
million of additional funding to OpticNet for general operating expenses.
From March 10 through March 25, 2003, the BEI committee of independent
directors and OpticNet's special committee continued to discuss value, price and
other terms of the Offer and Merger.
On March 26, the OpticNet special committee informed the remaining members
of the OpticNet board of directors that over the previous ten days the special
committee had reviewed background information, conducted a number of telephonic
conferences relating to the valuation of OpticNet's assets and its market
potential as part of the fact finding phase of the special committee's mission.
The special committee on such date forwarded a proposed counter-offer to BEI's
committee of independent directors of $0.05 per share, with all other terms to
remain as originally proposed.
On March 27, 2003, Xxx Xxxxxx, a member of the OpticNet special committee,
spoke with Xxxx Xxxxxx, the chairman of BEI's committee of independent
directors, addressing some of Xx. Xxxxxx'x questions regarding information
provided by the special committee in relation to the counter-offer.
On March 31, 2003, the BEI committee of independent directors and
OpticNet's special committee agreed on a price of $0.04 per share in cash for
the outstanding shares of OpticNet not owned by BEI and other terms to be
recommended to their respective Board of Directors, including that once a
definitive agreement is signed and the Offer completed, OpticNet would be merged
with a subsidiary of BEI.
On April 3, 2003, OpticNet's board of directors heard the special
committee's report of negotiations with the BEI committee of independent
directors. The price and terms recommended were accepted subject to completion
of a definitive agreement.
On April 4, 2003, Mr. Wrench for and on behalf of the OpticNet board of
directors sent a letter to Xx. XxXxxxxx officially advising BEI of the decision
of its board of directors to accept an offer price of $0.04 per share, subject
to the review and approval by the OpticNet board of directors and its legal
counsel of a definitive legal agreement.
On April 8, 2003, the board of directors of BEI met to hear its committee
of independent director's report and was informed of the acceptance of the
jointly proposed terms by the OpticNet board of directors. The board of
directors of BEI accepted its committee of independent director's recommendation
and directed management to have its attorneys prepare a definitive agreement for
further consideration by both companies.
Also on April 8, 2003, attorneys for BEI and OpticNet commenced work on a
definitive agreement. Protracted negotiations ensued and the substantively
complete form of the Merger Agreement was presented as ready for board review as
of May 15, 2003.
29
On April 23, 2003, OpticNet's board of directors was asked to stand ready
to meet to consider the engagement of American Appraisal Associates to render a
fairness opinion. Due to delays in preparing the engagement documents, several
meetings were postponed.
Also on April 23, 2003, BEI publicly announced in its fiscal 2003 second
quarter earnings release that BEI had determined to offer $0.04 per share in
cash for the outstanding shares of common stock of OpticNet not owned by BEI.
On April 25, 2003, acting on advice of its legal counsel, OpticNet
initiated action to obtain a fairness opinion. An engagement with American
Appraisal Associates to provide such an opinion was negotiated and signed on May
9, 2003.
On May 8, 2003, OpticNet filed a 10-Q stating that OpticNet had received a
letter from BEI stating interest in acquiring those shares of OpticNet's common
stock that are not currently owned by BEI.
On May 11, 2003, BEI filed a 10-Q stating that BEI sent a letter to
OpticNet's board of directors stating that BEI is interested in acquiring those
shares of OpticNet's common stock that are not currently owned by BEI and BEI
expects the aggregate purchase price for all common stock of OpticNet not
already owned by BEI will not exceed $250,000 for the stock. Upon acquisition of
these securities, BEI would fully reserve their value in the period that the
transaction is finalized. BEI's management does not expect that the additional
cost to accomplish this transaction to be material. However, if the transaction
is completed, BEI will recognize significant savings on a consolidated basis as
the ongoing cost of maintaining OpticNet as a public entity will be eliminated.
On May 20, 2003, OpticNet's board of directors held a telephonic meeting to
review and discuss the tender offer proposed by BEI, as described in the Merger
Agreement. At that meeting counsel to OpticNet reviewed for the board of
directors the structure of the tender offer and the fiduciary duties of the
board of directors to OpticNet's stockholders. Also at the meeting, AAA provided
a draft of their opinion that the consideration being offered to OpticNet's
stockholders is fair, from a financial point of view, to the stockholders and
reviewed for the board of directors their work and the conclusion of their
analysis. Following discussion, the OpticNet board of directors unanimously
approved the Merger and the Offer.
On June 10, 2003, AAA delivered to the OpticNet board of directors its
written opinion that, based on and subject to the factors and assumptions set
forth therein, the consideration being offered to OpticNet's stockholders in
connection with the Offer and the Merger is fair, from a financial point of
view, to OpticNet's stockholders.
On July 1, 2003, BEI, OpticNet and Purchaser signed the definitive merger
agreement.
OpticNet received an updated opinion from AAA dated July 1, 2003 that the
consideration being offered to OpticNet's stockholders in connection with the
Offer and the Merger is fair, from a financial point of view, to OpticNet's
stockholders.
14. THE MERGER AGREEMENT
THE MERGER AGREEMENT
The following is a summary of the Merger Agreement. The following summary
does not purport to be a complete description of the terms and conditions of the
Merger Agreement and is qualified in its entirety by reference to the Merger
Agreement, a copy of which is filed as an exhibit to the Tender Offer Statement
on Schedule TO that has been filed with the Securities and Exchange Commission
by the Purchaser and BEI in connection with the Offer, and is incorporated in
this Offer to Purchase by reference. The Merger Agreement may be examined, and
copies obtained, by following the procedures described in Section 10 (Certain
Information Concerning OpticNet) of this Offer to Purchase.
30
The Offer
The Merger Agreement provides for the commencement of the Offer by the
Purchaser. The Purchaser's obligation to accept for payment shares of OpticNet
common stock that are tendered in the Offer is subject to the satisfaction or
waiver, if permitted under the Merger Agreement, of each of the conditions to
the Offer that are described in Section 15 (Certain Conditions to the Offer) of
this Offer to Purchase. Without OpticNet's prior written consent: (i) the
Minimum Condition may not be amended or waived; and (ii) no change may be made
to the Offer that (A) changes the form of consideration to be paid pursuant to
the Offer, (B) decreases the Offer Price or the number of shares of OpticNet
common stock sought to be purchased in the Offer, (C) imposes conditions to the
Offer in addition to the Offer Conditions, or (D) except as otherwise permitted
by the Merger Agreement, extends the Expiration Date of the Offer beyond the
initial Expiration Date of the Offer.
The Offer is initially scheduled to expire 20 business days following the
date of the commencement of the Offer. Notwithstanding anything to the contrary
contained in the Merger Agreement, but subject to the parties' respective
termination rights under the Merger Agreement: (i) if, on any date as of which
the Offer is scheduled to expire, any Offer Condition has not been satisfied or
waived, the Purchaser may, in its discretion, subject to the consent of
OpticNet, extend the Offer from time to time for such period of time as the
Purchaser reasonably determines to be necessary to permit such Offer Condition
to be satisfied; (ii) the Purchaser may, in its discretion, extend the Offer
from time to time for any period of time required by any rule or regulation of
the Securities and Exchange Commission applicable to the Offer; (iii) if, on any
date as of which the Offer is scheduled to expire, the Minimum Condition has
been satisfied but the sum of the number of shares of OpticNet common stock that
have been validly tendered pursuant to the Offer (and not withdrawn) plus the
number of shares of OpticNet common stock owned by BEI or any wholly-owned
subsidiary of BEI is less than 90% of the number of shares of OpticNet common
stock outstanding, then the Purchaser may, in its discretion, subject to the
consent of OpticNet, extend the offer for an additional period of not more than
twenty business days; and (iv) the Purchaser may, in its discretion, subject to
the consent of OpticNet, elect to provide for a subsequent offering period (and
one or more extensions thereof) in accordance with Rule 14d-11 under the
Exchange Act.
The Merger Agreement further provides that, on the terms of and subject to
the conditions to the Offer, BEI must cause the Purchaser to accept for payment
all the shares of OpticNet common stock that are validly tendered in the Offer
and not withdrawn as soon as practicable after the Purchaser is permitted to do
so under applicable legal requirements and BEI must cause the Purchaser to pay
for such shares promptly thereafter.
Top-Up Option
Pursuant to the Merger Agreement, BEI and Purchaser have an irrevocable
option (the "Top-Up Option") to purchase from OpticNet, at a price per share
equal to the Offer Price, a number of shares of OpticNet common stock (the
"Top-Up Option Shares") that, when added to the number of any outstanding shares
of OpticNet common stock owned by BEI or any wholly-owned subsidiary of BEI at
the time of exercise of the Top-Up Option, constitutes one share of OpticNet
common stock more than 90% of the number of shares of OpticNet common stock that
will be outstanding immediately after the issuance of the Top-Up Option Shares.
The Top-Up Option may be exercised by BEI or the Purchaser, in whole but not in
part, at any time on or after the first date on which Purchaser accepts any
shares of OpticNet common stock for payment pursuant to the Offer (the
"Acceptance Date"), but only if the Minimum Condition has been met.
The Merger
The Merger Agreement provides that, following the satisfaction or waiver of
the conditions to the Merger described below under the caption "Conditions to
the Merger", the Purchaser will be merged with and into OpticNet in accordance
with the applicable provisions of Delaware law, and OpticNet will continue as
the surviving corporation in the Merger and the separate corporate existence of
the Purchaser will cease.
31
Certificate of Incorporation and Bylaws of the Surviving Corporation
The Merger Agreement provides that upon the completion of the Merger, the
certificate of incorporation of the surviving corporation will be amended and
restated to conform to Annex III to the Merger Agreement, and the bylaws of the
surviving corporation will be amended and restated to conform to the bylaws of
the Purchaser as in effect immediately prior to the completion of the Merger.
Directors and Officers of the Surviving Corporation
Under the terms of the Merger Agreement, upon the completion of the Merger,
the directors and officers of the surviving corporation will be the respective
individuals who are directors and officers of the Purchaser immediately prior to
the completion of the Merger.
Conversion of Shares of OpticNet Common Stock
Pursuant to the Merger Agreement, each share of OpticNet common stock that
is issued and outstanding immediately prior to the completion of the Merger
(other than shares owned by BEI, the Purchaser or OpticNet, or by a wholly owned
subsidiary of BEI, the Purchaser or OpticNet, or by any stockholder of OpticNet
who is entitled to and properly exercises appraisal rights under Delaware law)
will be converted into the right to receive $0.04 (the price per share paid in
the Offer) in cash, without interest thereon, unless applicable California law
requires the remaining OpticNet stockholders to receive shares of BEI common
stock instead.
Appraisal Rights
Shares of OpticNet common stock that are outstanding immediately prior to
the completion of the Merger that are held by persons who have neither voted in
favor of the Merger nor consented thereto in writing and who have properly and
validly exercised their statutory rights of appraisal in respect of such shares
in accordance with Section 262 of the General Corporation Law of the State of
Delaware (the "DGCL") or in accordance with Chapter 13 of the California General
Corporations Law (the "CGCL") will not be converted into the right to receive
$0.04 per share (the price per share paid in the Offer). Instead, these
stockholders will only be entitled to receive payment of the fair value of their
shares of OpticNet common stock in accordance with Section 262 of the DGCL or
Chapter 13 of the CGCL. Shares of OpticNet common stock held by stockholders who
fail to perfect, or otherwise withdraw or lose, their rights to appraisal under
Section 262 of the DGCL or Chapter 13 of the CGCL, however, will be converted
into the right to receive $0.04 per share (the price per share paid in the
Offer) in cash, without interest thereon, unless applicable California law
requires the remaining OpticNet stockholders to receive shares of BEI common
stock instead. A stockholder may withdraw his demand for appraisal by delivering
to OpticNet a written withdrawal of his demand for appraisal. The foregoing
summary of Section 262 of the DGCL and Chapter 13 of the CGCL does not purport
to be complete and is qualified in its entirety by reference to Section 262 of
the DGCL and Chapter 13 of the CGCL. Failure to follow the steps that Section
262 of the DGCL and Chapter 13 of the CGCL requires for perfecting appraisal
rights may result in the loss of those rights.
Treatment of OpticNet Options
The Merger Agreement provides that OpticNet will terminate OpticNet's 2000
Equity Incentive Plan immediately prior to the completion of the Merger. BEI and
Purchaser will not assume any outstanding OpticNet options or substitute any
options for BEI's equity securities for outstanding OpticNet options. In
accordance with OpticNet's 2000 Equity Incentive Plan, any OpticNet options not
exercised immediately prior to the completion of the Merger will be canceled.
32
Representations and Warranties
OpticNet made representations and warranties to the Purchaser and BEI in
the Merger Agreement, effective as of the date of the Merger Agreement,
including representations relating to:
- its capitalization;
- its filings with the Securities and Exchange Commission and financial
statements;
- title to its assets;
- its intellectual property;
- its liabilities;
- its compliance with legal requirements;
- legal proceedings and orders;
- its authority to enter into, and the enforceability of, the Merger
Agreement;
- the necessary vote of its stockholders, if required under applicable
legal requirements;
- noncontravention of laws and agreements, and absence of needed consents;
- the financial advisory fees payable by OpticNet; and
- the information supplied by OpticNet for inclusion in this Offer to
Purchase and OpticNet's Solicitation/Recommendation Statement on Schedule
14D-9.
The Purchaser and BEI made representations and warranties to OpticNet in
the Merger Agreement, including representations relating to:
- their valid existence;
- their authority to enter into, and the enforceability of, the Merger
Agreement;
- noncontravention of laws and agreements, and absence of needed consents;
and
- the information supplied by them for inclusion in this Offer to Purchase
and OpticNet's Solicitation/ Recommendation Statement on Schedule 14D-9.
Non-Solicitation and Related Provisions
The Merger Agreement requires that OpticNet immediately cease and cause to
be terminated any existing discussions with any person that relate to any offer
or proposal (other than an offer or proposal made or submitted by BEI)
contemplating a transaction or series of transactions involving any of the
following:
- any merger, consolidation, amalgamation, share exchange, business
combination, issuance of securities, acquisition of securities,
recapitalization, tender offer, exchange offer or other similar
transaction in which OpticNet is a constituent corporation;
- any merger, consolidation, amalgamation, share exchange, business
combination, issuance of securities, acquisition of securities,
recapitalization, tender offer, exchange offer or other similar
transaction in which a person or "group" (as defined in the Exchange Act
and the rules thereunder) of persons directly or indirectly acquires
beneficial or record ownership of securities representing more than 15%
of the outstanding securities of any class of voting securities of
OpticNet;
- the issuance by OpticNet (in connection with a merger or otherwise) of
securities representing more than 15% of the outstanding securities of
any class of voting securities of OpticNet;
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- any sale, lease, exchange, transfer, license, acquisition or disposition
of any business or businesses or assets that constitute or account for
15% or more of the consolidated net revenues, net income or assets of
OpticNet; or
- any liquidation or dissolution of OpticNet.
Each of the transactions referred to above is referred to as an
"Acquisition Transaction," and any offer or proposal (other than an offer or
proposal made or submitted by BEI) contemplating any Acquisition Transaction, is
referred to as an "Acquisition Proposal." The Merger Agreement further provides
that OpticNet must not directly or indirectly, and must not authorize or permit
any of the executive officers, directors, employees, agents, attorneys,
accountants, advisors or representatives (collectively "Representatives") of
OpticNet directly or indirectly to:
- solicit, initiate, intentionally encourage, induce or facilitate the
making, submission or announcement of any Acquisition Proposal or take
any action that would reasonably be expected to lead to an Acquisition
Proposal;
- furnish any information regarding OpticNet to any person in connection
with or in response to an Acquisition Proposal or an inquiry or
indication of interest that would reasonably be expected to lead to an
Acquisition Proposal;
- engage in discussions or negotiations with any person with respect to any
Acquisition Proposal;
- approve, endorse or recommend any Acquisition Proposal; or
- enter into any letter of intent or similar document or any contract
contemplating or otherwise relating to any Acquisition Transaction.
However, prior to the adoption of the Merger Agreement by any required
OpticNet stockholder vote, and subject to OpticNet's right to terminate the
Merger Agreement to accept a Superior Offer (as defined below), OpticNet is not
prohibited by the non-solicitation and related provisions described above from
furnishing information regarding OpticNet, or entering into discussions or
negotiations with, any person in response to a Superior Offer that is submitted
to OpticNet by such person (and not withdrawn) if (1) neither OpticNet nor any
of its Representatives shall have breached or taken any action inconsistent with
any of the provisions described above, (2) the board of directors of OpticNet
concludes in good faith, upon the recommendation of a special committee of the
board of directors of OpticNet (the "Special Committee") after the Special
Committee has taken into account the written advice of its outside legal
counsel, that such action is required in order for the board of directors of
OpticNet to comply with its fiduciary obligations to OpticNet's stockholders
under applicable law, (3) at least one business day prior to furnishing any such
nonpublic information to, or entering into discussions with, such person,
OpticNet gives BEI written notice of the identity of such person and of
OpticNet's intention to furnish nonpublic information to, or enter into
discussions with, such person, and OpticNet receives from such person an
executed confidentiality agreement containing customary limitations on the use
and disclosure of all nonpublic written and oral information furnished to such
person by or on behalf of OpticNet, and (4) at least one business day prior to
furnishing any such nonpublic information to such person, OpticNet furnishes
such nonpublic information to BEI (to the extent such nonpublic information has
not been previously furnished by OpticNet to BEI). For purposes of the Merger
Agreement, "Superior Offer" means an unsolicited, bona fide written offer made
by a third party to purchase all of the outstanding shares of OpticNet common
stock on terms that the board of directors of OpticNet determines in its
reasonable judgment to be more favorable to OpticNet's stockholders than the
terms of the Offer and the Merger. However, any such offer will be deemed not to
be a "Superior Offer" if any financing required to complete the transaction
contemplated by such offer is not reasonably capable of being obtained by such
third party. The Merger Agreement provides that any action inconsistent with any
of the provisions described above taken by any Representative of OpticNet will
be deemed to be a breach of those provisions of the Merger Agreement, whether or
not such Representative is purporting to act on behalf of OpticNet.
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The Merger Agreement also requires that OpticNet promptly (and in no event
later than 24 hours) after receipt of any Acquisition Proposal, any inquiry or
indication of interest that would lead to an Acquisition Proposal or any request
for nonpublic information, advise BEI orally and in writing of such Acquisition
Proposal, inquiry, indication of interest or request (including the identity of
the person making or submitting such Acquisition Proposal, inquiry, indication
of interest or request, and the terms thereof) that is made or submitted by any
person prior to the completion of the Merger. OpticNet must keep BEI fully
informed with respect to the status of any such Acquisition Proposal, inquiry,
indication of interest or request and any modification or proposed modification
thereto.
OpticNet Stockholders' Meeting
As promptly as practicable following the Acceptance Date (and following the
expiration of any subsequent offering period), if the adoption of the Merger
Agreement by OpticNet's stockholders is required by law in order to complete the
Merger, OpticNet must take all action necessary under all applicable legal
requirements to call, give notice of and hold a meeting of the holders of
OpticNet common stock to vote on the adoption of the Merger Agreement and the
principal terms of the Merger.
Under the Merger Agreement, BEI has agreed to cause all shares of OpticNet
common stock owned by BEI or any subsidiary of BEI to be voted in favor of the
adoption of the Merger Agreement and completion of the Merger at the OpticNet
stockholder meeting. However, if the Purchaser owns, by virtue of the Offer or
otherwise, at least 90% of the outstanding shares of OpticNet common stock, then
the parties are required under the Merger Agreement to take all necessary and
appropriate action to cause the Merger to become effective as soon as
practicable without a stockholders' meeting in accordance with Section 253 of
the DGCL.
Recommendation of OpticNet's Board of Directors
OpticNet's board of directors has unanimously recommended that the
stockholders of OpticNet accept the Offer, tender their shares of OpticNet
common stock pursuant to the Offer and (if required by applicable law) adopt the
Merger Agreement (the "OpticNet Board Recommendation"). The Merger Agreement
provides that, except as provided below, neither OpticNet's board of directors
nor any committee thereof may withdraw the OpticNet Board Recommendation or
modify the OpticNet Board Recommendation in a manner adverse to BEI or the
Purchaser, and no resolution by the board of directors of OpticNet or any
committee thereof to withdraw or modify the OpticNet Board Recommendation in a
manner adverse to BEI or the Purchaser may be adopted.
Notwithstanding the foregoing, at any time prior to the Acceptance Date,
the OpticNet Board Recommendation may be withdrawn or modified in a manner
adverse to BEI and the Purchaser if: (i) an unsolicited, bona fide written offer
to purchase all of the outstanding shares of OpticNet common stock is made to
OpticNet and is not withdrawn; (ii) OpticNet provides BEI with at least one
business day's prior notice of any meeting of OpticNet's board of directors or
any committee thereof at which such board of directors or such committee will
consider or determine whether such offer is a Superior Offer; (iii) OpticNet's
board of directors and the Special Committee each determines in good faith
(based, in the case of the Special Committee's determination, upon a written
opinion of American Appraisal Associates) that such offer constitutes a Superior
Offer; (iv) OpticNet's board of directors and the Special Committee each
determines in good faith, after having taken into account the advice of
OpticNet's outside legal counsel, that, in light of such Superior Offer, the
withdrawal or modification of the OpticNet Board Recommendation in a manner
adverse to BEI or the Purchaser is required in order for OpticNet's board of
directors to comply with its fiduciary obligations to OpticNet's stockholders
under applicable legal requirements; and (v) no Representative of OpticNet has
breached or taken any action inconsistent with the provisions of the Merger
Agreement related to non-solicitation.
Reasonable Efforts to Complete Transactions
The Merger Agreement provides that, subject to the terms and conditions
thereof, BEI and OpticNet must use reasonable efforts to take, or cause to be
taken, all actions necessary to complete the transactions
35
contemplated by the Merger Agreement, including (i) making all filings (if any)
and giving all notices (if any) required to be made and given in connection with
the Offer and the Merger and the other transactions contemplated by the Merger
Agreement, (ii) using reasonable efforts to obtain each consent (if any)
required to be obtained in connection with the Offer and the Merger and the
other transactions contemplated by the Merger Agreement, and (iii) using
reasonable efforts to lift any restraint, injunction or other legal bar to the
Offer, the Merger or any of the other transactions contemplated by the Merger
Agreement.
Directors' and Officers' Indemnification and Insurance
The Merger Agreement provides that all rights to indemnification by
OpticNet existing in favor of those persons who are directors and officers of
OpticNet as of the date of the Merger Agreement (the "Indemnified Persons") for
their acts and omissions occurring prior to the completion of the Merger, as
provided in OpticNet's bylaws (as in effect as of the date of the Merger
Agreement) and as provided in the indemnification agreements between OpticNet
and said Indemnified Persons (as in effect as of the date of the Merger
Agreement) in the forms disclosed by OpticNet to BEI prior to the date of the
Merger Agreement, will survive the Merger and must be observed by OpticNet to
the fullest extent available under Delaware law for a period of six years after
the completion of the Merger.
In addition, the Merger Agreement provides that from the time of the
completion of the Merger until the sixth anniversary of the completion of the
Merger, OpticNet must maintain in effect, for the benefit of the Indemnified
Persons with respect to their acts and omissions occurring prior to the
completion of the Merger, the existing policy of directors' and officers'
liability insurance maintained by OpticNet as of the date of the Merger
Agreement on terms and conditions commercially reasonable to BEI.
Conditions to the Merger
The Merger Agreement provides that the respective obligations of the
parties to complete the Merger are subject to the satisfaction or waiver of the
following conditions:
- if required by applicable law, the Merger Agreement must be adopted by
the affirmative vote of the holders of greater than 50% of the shares of
OpticNet common stock outstanding on the record date for the meeting of
the holders of OpticNet common stock to vote on the adoption of the
Merger Agreement;
- no temporary restraining order, preliminary or permanent injunction or
other order preventing the completion of the Merger shall have been
issued by any court of competent jurisdiction and remain in effect, and
there shall not be any legal requirement enacted or deemed applicable to
the Merger that makes completion of the Merger illegal; and
- the Purchaser shall have accepted for payment and paid for shares of
OpticNet common stock pursuant to the Offer.
Termination of the Merger Agreement
The Merger Agreement provides that it may be terminated:
- by mutual written consent of BEI and OpticNet at any time prior to the
completion of the Merger;
- by either BEI or OpticNet at any time prior to the completion of the
Merger if a court of competent jurisdiction or other governmental body
shall have issued a final and nonappealable order, decree or ruling, or
shall have taken any other action, having the effect of permanently
restraining, enjoining or otherwise prohibiting the acquisition or
acceptance for payment of, or payment for, shares of OpticNet common
stock in the Offer or the Merger or making the purchase of, or payment
for, shares of OpticNet common stock in the Offer or completion of the
Merger illegal;
- by either BEI or OpticNet prior to the Acceptance Date if the Offer shall
have expired without the acceptance for payment of shares of OpticNet
common stock, except that a party shall not be permitted to terminate the
Merger Agreement on the foregoing basis if the failure to accept shares
of
36
OpticNet common stock for payment in the Offer is attributable to a failure on
the part of such party to perform any covenant in the Merger Agreement required
to be performed by such party on or prior to the Acceptance Date;
- by either BEI or OpticNet at any time prior to the Acceptance Date if the
acceptance for payment of shares of OpticNet common stock pursuant to the
Offer has not occurred on or prior to the close of business on September
27, 2003, except that a party may not terminate the Merger Agreement on
the foregoing basis if the failure to accept shares of OpticNet common
stock for payment pursuant to the Offer by the close of business on
September 27, 2003 is attributable to a failure on the part of such party
to perform any covenant in the Merger Agreement required to be performed
by such party on or prior to the Acceptance Date;
- by BEI at any time prior to the Acceptance Date if a Triggering Event (as
defined below) has occurred;
- by OpticNet at any time prior to the Acceptance Date, in order to accept
a Superior Offer, if (i) neither OpticNet nor any Representative of
OpticNet has breached or taken any action inconsistent with any of the
provisions in the Merger Agreement related to non-solicitation, (ii) the
board of directors of OpticNet, after satisfying all of the requirements
for withdrawing or modifying its recommendation of the Offer and
otherwise causing OpticNet to comply in all material respects with the
provisions of the Merger Agreement, has authorized OpticNet to enter into
a binding written definitive acquisition agreement providing for the
completion of a transaction constituting a Superior Offer (the "Specified
Agreement"), (iii) OpticNet has delivered to BEI a written notice,
confirming that the board of directors of OpticNet has authorized the
execution and delivery of the Specified Agreement on behalf of OpticNet,
(iv) a period of at least two business days has elapsed since the receipt
by BEI of such notice, and (v) BEI has not made an offer to OpticNet that
is at least as favorable to OpticNet's stockholders, from a financial
point of view, as the transaction contemplated by the Specified
Agreement;
- by BEI at any time prior to the Acceptance Date if (i) any of OpticNet's
representations and warranties contained in the Merger Agreement are
inaccurate as of the date of the Merger Agreement, or shall have become
inaccurate as of a date subsequent to the date of the Merger Agreement
(as if made on such subsequent date), such that the Accuracy Condition
(as defined in Section 13 (Certain Conditions to the Offer) of this Offer
to Purchase) would not be satisfied (except that, for purposes of
determining the accuracy of such representations and warranties as of the
date of the Merger Agreement or as of any subsequent date, all
materiality qualifications contained in such representations and
warranties will be disregarded), or (ii) any of OpticNet's covenants
contained in the Merger Agreement have been breached such that the
Covenant Condition (as defined in Section 13 (Certain Conditions to the
Offer) of this Offer to Purchase) would not be satisfied except that if
an inaccuracy in any of OpticNet's representations and warranties or a
breach of a covenant by OpticNet is curable by OpticNet within 15
business days after the date of the occurrence of such inaccuracy or
breach and OpticNet is continuing to exercise all reasonable efforts to
cure such inaccuracy or breach, then BEI may not terminate the Merger
Agreement on account of such inaccuracy or breach during the 15 business
day period commencing on the date on which OpticNet receives notice of
such inaccuracy or breach from BEI; or
- by OpticNet at any time prior to the Acceptance Date if (i) any of BEI's
representations and warranties contained in the Merger Agreement are
materially inaccurate as of the date of the Merger Agreement, or shall
have become inaccurate as of a date subsequent to the date of the Merger
Agreement (as if made on such subsequent date), such that the inaccuracy
in BEI's representations and warranties has a material adverse effect on
BEI's ability to satisfy its obligations under the Merger Agreement
(except that, for purposes of determining the accuracy of such
representations and warranties as of the date of the Merger Agreement or
as of any subsequent date, all materiality qualifications contained in
such representations and warranties will be disregarded), or (ii) any of
BEI's covenants contained in the Merger Agreement have been materially
breached; except that if an
37
inaccuracy in any of BEI's representations and warranties or a breach of
a covenant by BEI is curable by BEI within 10 days after the date of the
occurrence of such inaccuracy or breach and BEI is continuing to exercise
all reasonable efforts to cure such inaccuracy or breach, then OpticNet
may not terminate the Merger Agreement on the foregoing basis on account
of such inaccuracy or breach during the 10-day period commencing on the
date on which BEI receives notice of such inaccuracy or breach.
A "Triggering Event" will be deemed to have occurred if:
- the board of directors of OpticNet has failed to recommend unanimously
that OpticNet's stockholders accept the Offer and tender their shares of
OpticNet common stock pursuant to the Offer or (if required by applicable
law) vote to adopt the Merger Agreement and approve the principal terms
of the Merger, or has withdrawn or modified in a manner adverse to BEI
the OpticNet Board Recommendation, or has taken any other action which is
reasonably determined by BEI to suggest that the board of directors of
OpticNet might not unanimously support the Offer or the Merger or might
not believe that the Offer or the Merger is in the best interests of
OpticNet's stockholders;
- OpticNet has failed to include in the tender offer statement on Schedule
TO the OpticNet Board Recommendation or a statement to the effect that
the board of directors of OpticNet has unanimously determined and
believes that the Offer and the Merger are in the best interests of
OpticNet's stockholders;
- the board of directors of OpticNet fails to reaffirm the OpticNet Board
Recommendation, or fails to reaffirm its unanimous determination that the
Offer and the Merger are in the best interests of OpticNet's
stockholders, within five business days after BEI requests in writing
that such recommendation or determination be reaffirmed;
- the board of directors of OpticNet has approved, endorsed or recommended
any Acquisition Proposal;
- OpticNet has entered into any letter of intent or similar document or any
contract relating to any Acquisition Proposal;
- a tender or exchange offer relating to securities of OpticNet shall have
been commenced (other than by BEI) and OpticNet has not sent to its
securityholders, within ten business days after the commencement of such
tender or exchange offer, a statement disclosing that OpticNet recommends
rejection of such tender or exchange offer;
- an Acquisition Proposal is publicly announced, and OpticNet (A) fails to
issue a press release announcing its opposition to such Acquisition
Proposal within five business days after such Acquisition Proposal is
announced or (B) otherwise fails to actively oppose such Acquisition
Proposal;
- any person (other than a person that beneficially owns more than 15% of
the outstanding shares of OpticNet common stock as of the date of the
Merger Agreement) or "group" (as defined in the Exchange Act and the
rules promulgated thereunder) of persons directly or indirectly acquires
or agrees to acquire, or discloses an intention to acquire, beneficial or
record ownership of any securities of OpticNet and, as a result of the
acquisition thereof, owns or would own more than 15% of the outstanding
securities of any class of voting securities of OpticNet;
- any person that beneficially owns more than 15% of the outstanding shares
of OpticNet common stock as of the date of the Merger Agreement acquires
or agrees to acquire, or discloses an intention to acquire, beneficial or
record ownership of an additional two percent or more of the outstanding
securities of any class of voting securities of OpticNet; or
- OpticNet or any Representative of OpticNet has breached or taken any
action inconsistent with any of the provisions in the Merger Agreement
related to non-solicitation.
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Fees and Expenses
The Merger Agreement provides that all fees and expenses incurred in
connection with the Merger Agreement and the Offer, the Merger and the other
transactions contemplated by the Merger Agreement are to be paid by the party
incurring such expenses, whether or not any shares of OpticNet common stock are
purchased pursuant to the Offer and whether or not the Merger is completed,
except that BEI and OpticNet will share equally all fees and expenses, other
than attorneys' fees, incurred in connection with the filing, printing and
mailing of this Offer to Purchase and all related documents and the proxy
statement relating to the Merger, if required, and any amendments or supplements
thereto, and the filing of any notice or other document under any applicable
antitrust law or regulation.
Provisions for Unaffiliated Security Holders
The Purchaser and BEI have not agreed to grant to unaffiliated security
holders of OpticNet, in the Merger Agreement or otherwise, access to the
Purchaser's or BEI's files or to obtain counsel or appraisal services at the
expense of the Purchaser or BEI.
15. CERTAIN CONDITIONS TO THE OFFER
The following is a summary of all of the conditions to the Offer, and the
Offer is expressly conditioned on the satisfaction of these conditions. The
following summary does not purport to be a complete description of the
conditions to the Offer contained in the Merger Agreement and is qualified in
its entirety by reference to the Merger Agreement, a copy of which is filed as
an exhibit to the Tender Offer Statement on Schedule TO that has been filed with
the Securities and Exchange Commission by the Purchaser and BEI in connection
with the Offer, and is incorporated in this Offer to Purchase by reference. The
Merger Agreement may be examined, and copies obtained, by following the
procedures described in Section 10 (Certain Information Concerning OpticNet) of
this Offer to Purchase.
The Merger Agreement provides that the Purchaser is not required to accept
for payment, or (subject to any applicable rule or regulation of the Securities
and Exchange Commission) pay for, and may delay the acceptance for payment of,
or (subject to any applicable rule or regulation of the Securities and Exchange
Commission) the payment for, any tendered shares of OpticNet common stock, and
(subject to the terms of the Merger Agreement) may terminate the Offer on any
scheduled Expiration Date of the Offer and not accept for payment any tendered
shares of OpticNet common stock, if (i) the Minimum Condition has not been
satisfied by midnight, New York City time, on the Expiration Date of the Offer
or (ii) any of the following conditions shall not have been satisfied:
- any waiting period under any applicable antitrust or competition law or
regulation or other legal requirement shall have expired or been
terminated, and any consent required under any applicable antitrust or
competition law or regulation or other legal requirement shall have been
obtained;
- each of the representations and warranties of OpticNet contained in the
Merger Agreement shall have been accurate in all respects as of the date
of the Merger Agreement (except that any representation or warranty that,
by its express terms, speaks only as of an earlier date need only have
been accurate as of such earlier date); except that, for purposes of
determining the accuracy of such representations and warranties as of the
date of the Merger Agreement (or any applicable earlier date), all
materiality qualifications contained in such representations and
warranties shall be disregarded;
- each of the representations and warranties of OpticNet contained in the
Merger Agreement shall be accurate in all respects as of the Offer
Expiration Date as if made on and as of the Offer Expiration Date (except
that any representation or warranty that, by its express terms, speaks
only as of an earlier date need only have been accurate as of such
earlier date); except that the inaccuracies in such representations and
warranties shall be disregarded for purposes of this condition if all
such inaccuracies and the circumstances giving rise thereto, considered
collectively, have not had and could not reasonably be expected to have
or constitute a material adverse effect on the business, operations,
39
capitalization, assets, liabilities or prospects of OpticNet (together
with the previous condition, the "Accuracy Conditions");
- each covenant or obligation that OpticNet is required to comply with or
to perform at or prior to the Acceptance Date has been complied with and
performed in all material respects (the "Covenant Condition");
- all material consents required to be obtained in connection with the
Offer, the Merger and each of the other transactions contemplated by the
Merger Agreement shall have been obtained and shall be in full force and
effect (the "Consent Condition");
- BEI and OpticNet have received (i) a certificate executed by the Chief
Executive Officer and Chief Financial Officer of OpticNet confirming that
the Accuracy Conditions, the Covenant Condition, the Consent Condition,
the Legality Condition (as defined below) and the Legal Proceeding
Condition (as defined below) have been duly satisfied, which certificate
shall be in full force and effect and (ii) the written resignations of
all officers and directors of OpticNet, effective as of the Acceptance
Date;
- no temporary restraining order, preliminary or permanent injunction or
other order preventing the purchase of or payment for shares of OpticNet
common stock pursuant to the Offer, or preventing completion of the
Merger or any of the other transactions contemplated by the Merger
Agreement, shall have been issued by any court of competent jurisdiction
and remain in effect, and there is not any legal requirement enacted or
deemed applicable to the Offer, the Merger or any of the other
transactions contemplated by the Merger Agreement that makes the purchase
of or payment for shares of OpticNet common stock pursuant to the Offer,
or the completion of the Merger or any of the other transactions
contemplated by the Merger Agreement, illegal (the "Legality Condition");
- there shall not be pending or overtly threatened any legal proceeding by
or before any governmental body: (i) challenging or seeking to restrain
or prohibit the purchase of or payment for shares of OpticNet common
stock pursuant to the Offer, or the completion of the Merger or any of
the other transactions contemplated by the Merger Agreement; (ii)
relating to the Offer, the Merger or any of the other transactions
contemplated by the Merger Agreement and seeking to obtain from BEI or
OpticNet any damages or other relief that may be material to BEI or
OpticNet; (iii) seeking to prohibit or limit in any material respect
BEI's ability to vote, receive dividends with respect to or otherwise
exercise ownership rights with respect to the stock of OpticNet; (iv)
that could materially and adversely affect the right of BEI or OpticNet
to own the assets or operate the business of OpticNet (the "Legal
Proceeding Condition"); and
- there shall not have occurred: (i) a declaration by a governmental body
of a banking moratorium in the United States or any suspension of
payments in respect of banks in the United States, which declaration or
suspension is continuing; or (ii) a war, armed hostilities, an act of
terrorism or any other international or national calamity directly or
indirectly involving the United States, which is (or whose effects are)
continuing, which in any case in the good faith judgment of BEI would
make it inadvisable to proceed with the Offer or the Merger.
The foregoing conditions are for the sole benefit of BEI and the Purchaser
and, subject to the terms and conditions of the Merger Agreement, may be waived
by BEI or the Purchaser, in whole or in part, at any time and from time to time,
in the sole discretion of BEI and the Purchaser. The failure by BEI or the
Purchaser at any time to exercise any of the foregoing rights will not be deemed
a waiver of any such right and each such right will be deemed an ongoing right
that may be asserted at any time and from time to time. The Offer is expressly
subject to the satisfaction of each of the foregoing conditions.
If the Offer is terminated pursuant to the foregoing provisions, all
tendered shares of OpticNet common stock will be promptly returned to the
tendering stockholders.
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16. CERTAIN LEGAL MATTERS
Except as described in this Section 14, based on information provided by
OpticNet, OpticNet, the Purchaser, and BEI are not aware of any license or
regulatory permit that appears to be material to the business of OpticNet that
might be adversely affected by the Purchaser's acquisition of shares of OpticNet
common stock in connection with the Offer or the Merger, or of any approval or
other action by a domestic or foreign governmental, administrative or regulatory
agency or authority that would be required for the acquisition and ownership of
shares of OpticNet common stock by the Purchaser in connection with the Offer or
the Merger. Should any such approval or other action be required, the Purchaser
and BEI presently contemplate that such approval or other action will be sought,
except as described below under "State Takeover Laws". While, except as
otherwise described in this Offer to Purchase, the Purchaser does not presently
intend to delay the acceptance for payment of, or payment for, shares of
OpticNet common stock that are tendered in the Offer pending the outcome of any
such matter, there can be no assurance that any such approval or other action,
if needed, would be obtained or would be obtained without substantial conditions
or that failure to obtain any such approval or other action might not result in
consequences adverse to OpticNet's business or that certain parts of OpticNet's
business might not have to be disposed of or other substantial conditions
complied with in the event that such approvals were not obtained or such other
actions were not taken or in order to obtain any such approval or other action.
If certain types of adverse action are taken with respect to the matters
discussed below, the Purchaser could decline to accept for payment, or pay for,
shares of OpticNet common stock that are tendered in the Offer. See Section 13
(Certain Conditions to the Offer) of this Offer to Purchase for certain
conditions to the Offer, including conditions with respect to governmental
actions.
DELAWARE LAW
In general, Section 203 of the DGCL prevents an interested stockholder
(generally, a stockholder owning 15% or more of a corporation's outstanding
voting stock or an affiliate thereof) from engaging in a business combination
(generally defined to include a merger and certain other transactions) with a
Delaware corporation for a period of three years following the time when such
stockholder became an interested stockholder, except where certain board or
stockholder approvals have been obtained. However, Section 203 of the DGCL does
apply to a business combination if the subject Delaware corporation does not
have a class of voting stock that is (i) listed on a national securities
exchange, (ii) authorized for quotation on the NASDAQ Stock Market or (iii) held
of record by more than 2,000 stockholders. Because OpticNet common stock is not
listed on a national securities exchange, is not authorized for quotation on the
NASDAQ Stock Market and is held by less than 2,000 stockholders, Section 203 of
the DGCL is not applicable to the Merger Agreement, the Offer, the Merger and
the other transactions contemplated by the Merger Agreement.
STATE TAKEOVER STATUTES
A number of states have adopted laws that purport, to varying degrees, to
apply to attempts to acquire corporations that are incorporated in, or that have
substantial assets, stockholders, principal executive offices or principal
places of business or whose business operations otherwise have substantial
economic effects in, such states. OpticNet, directly or through subsidiaries,
conducts business in a number of states throughout the United States, some of
which have enacted such laws. Except as described in this Offer to Purchase, it
is not known whether any of these laws will, by their terms, apply to the Offer
or the Merger and the Purchaser has not complied with any such laws. To the
extent that certain provisions of these laws purport to apply to the Offer or
the Merger, it is believed that there are reasonable bases for contesting such
laws.
In 1982, in a case named 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. In 1987, however, in a
case named CTS Corp. v. Dynamics Corp. of America, the Supreme Court of the
United States held that the State of Indiana could, as a matter of corporate
law, constitutionally disqualify a potential acquiror from voting shares of a
target corporation without the prior approval of the remaining stockholders
where, among other things, the corporation is incorporated, and has a
substantial number of stockholders, in the state. Subsequently, in a
41
case named TLX Acquisition Corp. v. Telex Corp., a Federal District Court
located in the State of Oklahoma ruled that certain Oklahoma statutes were
unconstitutional insofar as they purported to apply to corporations incorporated
outside of the State of Oklahoma in that they would subject such corporations to
inconsistent regulations. Similarly, in a case named Tyson Foods, Inc. x.
XxXxxxxxxx, a Federal District Court located in the State of Tennessee ruled
that four Tennessee takeover statutes were unconstitutional as applied to
corporations incorporated outside of the State of Tennessee. This decision was
affirmed by the United States Court of Appeals for the Sixth Circuit. In
December 1988, a Federal District Court located in the State of Florida held in
a case named Grand Metropolitan PLC x. Xxxxxxxxxxx that the provisions of the
Florida Affiliated Transactions Act and the Florida Control Share Acquisition
Act were unconstitutional as applied to corporations incorporated outside of the
State of Florida.
ANTITRUST
Although all business combination transactions are subject to U.S.
antitrust laws and also may be subject to international antitrust laws, filings
with the Department of Justice and the Federal Trade Commission prior to closing
of the Merger are not required. However, the Department of Justice or the
Federal Trade Commission, as well as a state or private person, may challenge
the Merger at any time before or after its completion.
17. FEES AND EXPENSES
The Purchaser and BEI have retained Mellon Investor Services to act as the
Information Agent and the Depositary for the Offer. Mellon Investor Services,
acting as the Information Agent and the Depositary, will receive reasonable and
customary compensation for its services, will be reimbursed for certain
reasonable out-of-pocket expenses and will be indemnified against certain
liabilities and expenses in connection with its services, including certain
liabilities and expenses under United States federal securities laws.
The Information Agent may contact holders of OpticNet common stock by mail,
telephone, facsimile, email, telegraph and personal interview and may request
banks, brokers, dealers and other nominees to forward materials relating to the
Offer to beneficial owners of OpticNet common stock.
It is estimated that the Purchaser and BEI will incur expenses in
connection with the transactions contemplated by the Offer and the Merger
approximately as set forth below:
Filing fees................................................. $ 20
Printing and mailing fees................................... 25,000
Legal fees.................................................. 120,000
Depositary fees............................................. 65,000
Information Agent fees...................................... 7,500
Miscellaneous............................................... 8,000
Total....................................................... 225,520
Neither the Purchaser nor BEI will pay any fees or commissions to any
broker or dealer or other person (other than to the Depositary, the Information
Agent and in the event that the laws of one or more jurisdictions require the
Offer to be made by a broker or dealer licensed in such jurisdiction, to such
broker or dealer) in connection with the solicitation of tenders of shares of
OpticNet common stock in connection with the Offer. Upon request, the Purchaser
will reimburse brokers, dealers, banks, trust companies and other nominees for
customary mailing and handling expenses incurred by them in forwarding material
to their customers.
18. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of shares of OpticNet common stock in any jurisdiction in
which the making of the Offer or the acceptance of the Offer would not be in
compliance with the laws of such jurisdiction. Neither the Purchaser nor BEI is
aware of any
42
jurisdiction in which the making of the Offer or the acceptance of the Offer
would not be in compliance with the laws of such jurisdiction. To the extent
that the Purchaser or BEI becomes aware of any state law that would limit the
class of offerees in the Offer, the Purchaser may amend, in its discretion, the
Offer and, depending on the timing of such amendment, if any, may extend, in its
discretion, the Offer to provide adequate dissemination of such information to
holders of shares of OpticNet common stock prior to the expiration of the Offer.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of the Purchaser by one or more registered brokers or dealers
licensed under the laws of such jurisdiction to be designated by the Purchaser.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR BEI THAT IS NOT CONTAINED IN THIS
OFFER TO PURCHASE 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 BEI have filed with the Securities and Exchange
Commission a Tender Offer Statement on Schedule TO pursuant to Rules 13e-3 and
14d-3 under the Exchange Act, together with exhibits, furnishing certain
additional information with respect to the Offer, and may file amendments to
such document. In addition, OpticNet has filed with the Securities and Exchange
Commission a Solicitation/ Recommendation Statement on Schedule 14D-9 pursuant
to Rule 14d-9 under the Exchange Act and a Rule 13e-3 Transaction Statement on
Schedule 13E-3 pursuant to Rule 13e-3 under the Exchange Act, together with
exhibits, containing its recommendation with respect to the Offer and the
reasons for such recommendation and furnishing certain additional information
with respect to the Offer. Such documents and any amendments to such documents,
including the related exhibits, should be available for inspection and copies
should be obtainable in the manner described in Section 8 (Certain Information
Concerning OpticNet) of this Offer to Purchase, except that such material will
not be available at the regional offices of the Securities and Exchange
Commission.
OPTO ACQUISITION SUB, INC.
August 18, 2003
43
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
THE PURCHASER AND BEI
1. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER
The name, business address, present principal occupation or employment and
material occupations, positions, offices or employment for the past five years
of each of the directors and executive officers of the Purchaser are set forth
below. The business address of each such director and executive officer is Opto
Acquisition Sub, Inc., c/o BEI Technologies, Inc., Xxx Xxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000. All directors and officers listed below
are citizens of the United States.
NAME AND POSITION PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY
----------------- -----------------------------------------------------------------
XXXX XXXXXXXX........................ Xx. XxXxxxxx was appointed President of the Purchaser upon
President formation of the Purchaser in contemplation of the Offer and the
Merger. Xx. XxXxxxxx began serving as Senior Vice President and
Chief Financial Officer of BEI, in May 2000. He was appointed
Vice President and Chief Financial Officer of BEI Sensors &
Systems Company Inc., in October 1993, which was formed by the
consolidation of BEI Motion Systems Company and the BEI Sensors &
Controls Group, of which Xx. XxXxxxxx had served as Vice
President and Controller since 1992. Prior to joining BEI
Electronics, Inc. ("BEI Electronics") in 1992, he served for 7
years as Controller for Systron Xxxxxx Corporation, Microwave
Division, a manufacturer of avionics and aerospace sensors and
subsystems. Xx. XxXxxxxx'x degrees include a Bachelor of Arts
from the University of California, Irvine, and a Masters in
Business Administration from the University of Colorado. He is
also a graduate of the Executive Program from the University of
California, Los Angeles, Xxxxxxxx School of Management. He is a
Certified Management Accountant (CMA) through the Institute of
Management Accountants (IMA), and Certified in Production and
Inventory Management (CPIM) through the American Production and
Inventory Control Society (APICS).
XXXXXX X. XXXX....................... Xx. Xxxx was appointed Treasurer and Secretary of the Purchaser
Treasurer and Secretary upon formation of the Purchaser in contemplation of the Offer and
the Merger. Xx. Xxxx was named a Vice President of BEI in March
2000. He has served as Treasurer, Controller and Secretary of BEI
since September 1997 and held these same positions with BEI
Electronics prior to the distribution of shares of BEI to all of
the stockholders of record of BEI Electronics in September 1997
(the "Distribution"). Xx. Xxxx resigned from his positions with
BEI Electronics immediately prior to the Distribution. Xx. Xxxx
served as Secretary of Electronics in February 1995 and served as
Controller from November 1989 and as Treasurer from November 1987
until his resignation. From 1978 to 1987, he was employed by
AMPEX Corporation, an electronics and magnetic media company, in
various financial positions. From 1975 to 1978, he was an auditor
with Xxxxxx Xxxxxxxx LLP. Xx. Xxxx received a B.B.A. from Loyola
University in 1968 and his CPA in 1978 from the State of
California.
S-1
2. DIRECTORS AND EXECUTIVE OFFICERS OF BEI
The name, business address, present principal occupation or employment and
material occupations, positions, offices or employment for the past five years
of each of the directors and executive officers of BEI are set forth below.
Except as indicated below, the business address of each such director or
executive officer is c/o BEI Technologies, Inc., Xxx Xxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000. All directors and officers listed below
are citizens of the United States.
NAME AND POSITION PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY
----------------- -----------------------------------------------------------------
XXXXXXX XXXXXXX...................... Xx. Xxxxxxx began serving as a Director in June 1997 prior to the
Chief Executive Officer and Chairman Distribution and resulting spin-off of BEI from BEI Electronics
of the Board of Directors in September 1997. He was a founder of BEI Electronics and was
named Chairman of the Board of Directors of BEI Electronics in
October 1974. He continued to serve as a director of BEI Medical
Systems, Inc. (formerly BEI Electronics) until the sale of BEI
Medical Systems, Inc. in June 2002. Xx. Xxxxxxx has served as
Chairman of the Board of Directors of BEI since October 1997. Xx.
Xxxxxxx assumed the positions of President (in which position he
served until May 2000) and Chief Executive Officer of the
Company, effective October 1, 1997, after resigning as President
and CEO of BEI Electronics as a result of the Distribution. Xx.
Xxxxxxx served as President of Xxxxxxx Capital Corporation, a
Small Business Investment Company, from 1970 to 1985, and as
General Partner of Xxxxxxx Associates, a venture capital
investment partnership, from 1970 to 1990. He currently serves as
a director of Fiduciary Trust International, Xxxx & Xxxxxx, Inc.
and Teledyne Technologies, Inc. Xx. Xxxxxxx also serves as a
director of OpticNet. Xx. Xxxxxxx holds a B.S. from Stanford
University and an M.B.A. from the University of California,
Berkeley.
XXXX X. XXXXX........................ Xx. Xxxxx was appointed President and Chief Operating Officer of
President, Chief Operating Officer BEI in May 2000. He began serving as a Director and as a Vice
and Director President of BEI in June 1997 prior to the Distribution and
resulting spin-off of BEI from BEI Electronics in September 1997.
Xx. Xxxxx was appointed President of BEI Sensors & Systems
Company, Inc. in October 1993, which was formed by the
consolidation of BEI Motion Systems Company and the BEI Sensors &
Controls Group, of which Xx. Xxxxx had been President since
October 1992. Prior to joining BEI Electronics in 1992, he served
over 17 years in various senior level technical and executive
positions with Systron Xxxxxx Corporation, a manufacturer of
avionics and aerospace sensors and subsystems. He was most
recently Chairman, President and CEO of Systron Xxxxxx
Corporation, a subsidiary of Thorn/EMI. Dr. Madni's degrees
include a B.S. and M.S. in Engineering from the University of
California, Los Angeles, and a Ph.D. in Engineering from
California Coast University. He is also a graduate of the
Engineering Management Program from the California Institute of
Technology, the AEA/Stanford Executive Institute from Stanford
University, and the Program for Senior Executives from the
Massachusetts Institute of Technology, Xxxxx School of
Management. He is a Chartered Engineer and Fellow of the
Institute of Electrical and Electronics Engineers, the
Institution of Electrical Engineers, the Institute for the
Advancement of Engineering, the New York Academy of Sciences, the
American Association for the Advancement of Science, and the
International Biographical Association.
S-2
NAME AND POSITION PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY
----------------- -----------------------------------------------------------------
XXXX XXXXXXXX........................ Xx. XxXxxxxx began serving as Senior Vice President and Chief
Senior Vice President and Chief Financial Officer of BEI, in May 2000. He was appointed Vice
Financial Officer President and Chief Financial Officer of BEI Sensors & Systems
Company Inc., in October 1993, which was formed by the
consolidation of BEI Motion Systems Company and the BEI Sensors &
Controls Group, of which Xx. XxXxxxxx had served as Vice
President and Controller since 1992. Prior to joining BEI
Electronics in 1992, he served for 7 years as Controller for
Systron Xxxxxx Corporation, Microwave Division, a manufacturer of
avionics and aerospace sensors and subsystems. Xx. XxXxxxxx'x
degrees include a Bachelor of Arts from the University of
California, Irvine, and a Masters in Business Administration from
the University of Colorado. He is also a graduate of the
Executive Program from the University of California, Los Angeles,
Xxxxxxxx School of Management. He is a Certified Management
Accountant (CMA) through the Institute of Management Accountants
(IMA), and Certified in Production and Inventory Management
(CPIM) through the American Production and Inventory Control
Society (APICS).
XXXXXX X. XXXX....................... Xx. Xxxx was named a Vice President of BEI in March 2000. He has
Vice President, Secretary, Treasurer served as Treasurer, Controller and Secretary of BEI since
and Controller September 1997 and held these same positions with BEI Electronics
prior to the Distribution in September 1997. Xx. Xxxx resigned
from his positions with BEI Electronics immediately prior to the
Distribution. Xx. Xxxx served as Secretary of Electronics in
February 1995 and served as Controller from November 1989 and as
Treasurer from November 1987 until his resignation. From 1978 to
1987, he was employed by AMPEX Corporation, an electronics and
magnetic media company, in various financial positions. From 1975
to 1978, he was an auditor with Xxxxxx Xxxxxxxx LLP. Xx. Xxxx
received a B.B.A. from Loyola University in 1968 and his CPA in
1978 from the State of California.
XXXXXX X. XXXXXXXX................... Xx. Xxxxxxxx is Vice President and General Manager of the Systron
Vice President and General Manager, Xxxxxx Automotive Division of BEI. Xx. Xxxxxxxx was appointed to
BEI Systron Xxxxxx Automotive this position in December 2002. Xx. Xxxxxxxx also serves as
Division General Manager of OpticNet, a position he has held since June
2002. He served as General Manager of the Systron Xxxxxx Inertial
Division from October 1995 to February 2002. Until December 2002,
Xx. Xxxxxxxx held a Corporate Development Position. From 1985
until 1995 Xx. Xxxxxxxx held executive staff level positions at
Systron Xxxxxx Inertial Division in Program Management and
Contracts, Advanced Product Development and Manufacturing.
Between 1976 and 1986 Xx. Xxxxxxxx held various technical and
management positions at Systron Xxxxxx Inertial Division.
XXXXX XXXX........................... Xx. Xxxx serves as Senior Vice President of Divisional
Senior Vice President Divisional Administration and Human Resources for BEI. Xx. Xxxx joined BEI
Administration and Human Resources Electronics in 1983, and prior to his present position served in
various operational, administrative and financial positions with
BEI Sensors & Systems Company, a subsidiary of BEI. Prior to
joining Electronics, he was employed by Coastal Oil & Gas and
AFCO Metals in their respective financial departments. He
received a B.A. from Ouachita Baptist University in 1973 and his
CPA in 1979 from the State of Arkansas.
S-3
NAME AND POSITION PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY
----------------- -----------------------------------------------------------------
XXXXXXX X. XXXXXX.................... Xx. Xxxxxx, began serving as a Director in June 1997 prior to the
Director Distribution and resulting spin-off of BEI from BEI Electronics
in September 1997. From 1987 until his resignation as a result of
the Distribution, he served as a director of BEI Electronics. He
is currently an independent financial consultant, and also serves
as a director of Granite Construction, Inc. and the Western Farm
Credit Bank, a private company. Xx. Xxxxxx holds a B.S. from Yale
University and an M.B.A. from the University of California,
Berkeley.
XXXXXX X. XXXXX...................... Xx. Xxxxx began serving as a Director in June 1997 prior to the
Director Distribution and resulting spin-off of BEI from BEI Electronics
in September 1997. He served as a director of BEI Electronics
from October 1974 until his resignation as a result of the
Distribution. Xx. Xxxxx served as President and Chief Executive
Officer of BEI Electronics from October 1974 until July 1990. Xx.
Xxxxx served from 1971 until 1974 as Executive Vice President and
General Manager of Xxxxxxx Electronics, Inc., a subsidiary of
X.X. Xxxxxxx Company and the predecessor of BEI Electronics. Xx.
Xxxxx holds a B.S.E.E. from the University of Oklahoma.
C. XXXXXX XXXXXX, XX................. Xx. Xxxxxx began serving as a Director in June 1997 prior to the
Director Distribution and resulting spin-off of BEI from BEI Electronics
in September 1997. He was a director of BEI Electronics from 1978
until his resignation as a result of the Distribution. He served
as the Secretary of BEI Electronics from 1974 to early 1995. Xx.
Xxxxxx is the sole member of Xxxxxx, PLLC. He is also President
of Arkansas International Development Corporation II, LLC and
Chairman of the Board of Directors for Clinical Study Centers,
LLC. Xx. Xxxxxx holds a B.A. and an L.L.B. from the University of
Arkansas and an L.L.M. from Georgetown University.
XX. XXXXXXX X. XXXXXX, XX............ Xx. Xxxxxx began serving as a Director in June 1997 prior to the
Director Distribution and resulting spin-off of BEI from BEI Electronics
in September 1997. He was a director of BEI Electronics from
December 1992 until his resignation as a result of the
Distribution. He is currently an independent consulting engineer
in microelectronics and technology-based business planning. From
1987 to 1990, Xx. Xxxxxx served as Senior Fellow of the National
Academy of Engineering and, prior to that time, held various
technical and management positions with Motorola, Inc., most
recently as Senior Vice President and Director of Research and
Development. He currently serves as a director of RAMTRON
International Corp., Credence Systems, Inc., Thunderbird
Technologies, Inc., Xilinx, Inc., and Arete, a private company.
Xx. Xxxxxx holds a B.S.E.E. and an M.S. from Cornell University
and a Ph.D. in electrical engineering and computer sciences from
the University of California, Berkeley.
S-4
NAME AND POSITION PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY
----------------- -----------------------------------------------------------------
J. XXXXX XXXXXX...................... Xx. Xxxxxx began serving as a Director in January 2003. He is
Director Vice President Tax and Chief Internal Auditor for Arkansas Best
Corporation, a transportation company. Xx. Xxxxxx has been
responsible for the Audit and Tax Departments of that company
since January 1, 2000. From 1997 to 1999, Xx. Xxxxxx was
Vice-President Financial Reporting of Arkansas Best Corporation.
His responsibilities in that position included financial
statements contained in annual and quarterly SEC filings. From
1984 to 1996, Xx. Xxxxxx served as a Partner in Ernst & Young LLP
or its predecessors. During that time, Xx. Xxxxxx served as
engagement partner on a number of SEC registrants, including
manufacturing companies. Xx. Xxxxxx served as engagement partner
on the audit of BEI Electronics from 1984 to 1990 and from 1994
to 1996. Xx. Xxxxxx received a B.B.A. from the University of
Central Arkansas in 1972 and his CPA in 1974 from the State of
Arkansas.
XXXX X. WRENCH....................... Mr. Wrench began serving as a Director in June 1997 prior to the
Director Distribution and resulting spin-off of BEI from BEI Electronics
in September 1997. He was Senior Vice President and Chief
Financial Officer of BEI Electronics from July 1993 until his
resignation as a result of the Distribution, and held these same
positions with BEI until his retirement in May 2000. Mr. Wrench
was named a director of BEI Electronics in February 1986. He
continued to serve as a director of BEI Medical Systems, Inc.
(formerly BEI Electronics) until the sale of BEI Medical Systems,
Inc. in June 2002. He also serves as a director of OpticNet, and
has served as Chief Financial Officer of that company since May
2000. From April 1985 to July 1993, he served as Vice President
of BEI Electronics and President and Chief Executive Officer of
BEI Motion Systems Company, Inc., then a wholly owned subsidiary
of BEI Electronics that is now a part of BEI. Mr. Wrench holds a
B.A. from Pomona College and an M.B.A. from the University of
California, Los Angeles.
S-5
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for shares of OpticNet common
stock and any other required documents should be sent or delivered by each
stockholder of OpticNet or such stockholder's broker, dealer, bank, trust
company or other nominee to the Depositary at one of its addresses set forth
below.
MELLON INVESTOR SERVICES LLC
By Facsimile By Registered or By Overnight Courier: By Hand:
Transmission: Certified Mail:
Attn: Reorganization Dept. Attn: Reorganization Dept.
For Eligible Attn: Reorganization Xxxx. 00 Xxxxxxxxxx Xxxx 000 Xxxxxxxx, 00xx Xxxxx
Institutions Only: X.X. Xxx 0000 Xxxx-xxxx -- Xxxxx Xxx Xxxx, XX 00000
(000) 000-0000 Xxxxx Xxxxxxxxxx, XX 00000 Xxxxxxxxxx Xxxx, XX 00000
For Confirmation Only:
(000) 000-0000
Questions regarding the Offer, and requests for assistance in connection
with the Offer, may be directed to the Information Agent at its telephone number
and location listed below. Additional copies of this Offer to Purchase, the
Letter of Transmittal, the Notice of Guaranteed Delivery or any other materials
related to the Offer may be obtained from the Information Agent. You may also
contact your broker, dealer, bank, trust company or other nominee for assistance
concerning the Offer.
The Information Agent for the Offer is:
Mellon Investor Services
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
CALL TOLL FREE: (000) 000-0000
