OFFER TO PURCHASE
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
ENDOGEN, INC.
AT
$3.75 NET PER SHARE IN CASH
BY
EWOK ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY
OF
PERBIO SCIENCE AB
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, JUNE 29, 1999, UNLESS THE OFFER IS EXTENDED.
THE BOARD OF DIRECTORS OF ENDOGEN, INC. HAS APPROVED THE AGREEMENT AND PLAN OF
MERGER DATED AS OF MAY 27, 1999 (THE 'MERGER AGREEMENT') AND HAS DETERMINED THAT
THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST INTERESTS OF THE
STOCKHOLDERS OF ENDOGEN, INC. AND RECOMMENDS THAT ALL OF THE STOCKHOLDERS OF
ENDOGEN, INC. ACCEPT THE OFFER, TENDER THEIR SHARES AND APPROVE THE MERGER
AGREEMENT AND THE MERGER, IF REQUIRED BY LAW.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED BELOW) THAT
NUMBER OF OUTSTANDING SHARES WHICH, TOGETHER WITH THE OUTSTANDING SHARES SUBJECT
TO THE STOCKHOLDER AGREEMENT THAT SHALL NOT HAVE BEEN SO TENDERED, WOULD
REPRESENT AT LEAST TWO-THIRDS OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS
(AS DEFINED BELOW). SEE SECTION 14. THE OFFER IS NOT CONDITIONED ON OBTAINING
FINANCING.
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (1) complete and sign the Letter of Transmittal or a
facsimile copy thereof in accordance with the instructions in the Letter of
Transmittal, mail or deliver it and any other required documents to the
Depositary and either mail or deliver certificates evidencing or representing
such Shares to the Depositary (with the Letter of Transmittal and any other
required documents) or tender such Shares pursuant to the procedure for book
entry transfer set forth in Section 2 or (2) request such stockholder's broker,
dealer, commercial bank, trust company or other nominee to effect the
transaction for such stockholder. A stockholder having Shares registered in the
name of a broker, dealer, commercial bank, trust company or other nominee must
contact such stockholder's broker, dealer, commercial bank, trust company or
other nominee if such stockholder desires to tender such Shares.
Any stockholder who desires to tender such stockholder's Shares and whose
certificates evidencing or representing such Shares are not immediately
available, or who cannot comply with the procedures for book-entry transfer on a
timely basis, may tender such Shares by following the procedures for guaranteed
delivery set forth in Section 2.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of this Offer to Purchase. Requests for additional
copies of this Offer to Purchase, the Letter of Transmittal, the Notice of
Guaranteed Delivery or other related materials may be directed to the
Information Agent or to brokers, dealers, commercial banks or trust companies.
The Dealer Manager for the Offer is:
Vector Securities International, Inc.
June 2, 1999
TABLE OF CONTENTS
PAGE
----
3
Introduction.................................................................................................
1. Terms of the Offer..................................................................................... 4
2. Procedures for Tendering Shares........................................................................ 6
3. Withdrawal Rights...................................................................................... 9
4. Acceptance for Payment and Payment of Purchase Price................................................... 9
5. Certain Federal Income Tax Considerations.............................................................. 10
6. Price Range of Shares; Dividends....................................................................... 11
7. Effect of the Offer on the Market for the Shares; Nasdaq and Boston Stock Exchange Quotations; Exchange
Act Registration; Margin Regulations................................................................... 11
8. Certain Information Concerning the Company............................................................. 13
9. Certain Information Concerning Perstorp, the Purchaser and Parent...................................... 14
10. Background of the Offer; Contacts with the Company..................................................... 15
11. Purpose of the Offer and the Merger; Plans for the Company; Appraisal Rights........................... 16
12. The Merger Agreement; Stockholder Agreement; Employment Agreements And Confidentiality Agreement....... 17
13. Source and Amount of Funds............................................................................. 24
14. Certain Conditions of the Offer........................................................................ 25
15. Certain Legal Matters.................................................................................. 26
16. Fees and Expenses...................................................................................... 28
17. Miscellaneous.......................................................................................... 28
S-1
Schedule I...................................................................................................
2
TO ALL HOLDERS OF SHARES OF COMMON STOCK OF ENDOGEN, INC.:
INTRODUCTION
EWOK Acquisition Corp., a Massachusetts corporation (the 'Purchaser') and a
wholly owned subsidiary of PerBio Science AB, a Swedish corporation ('Parent'),
hereby offers to purchase all outstanding shares of the Common Stock (the
'Common Stock'), $.01 par value (the 'Shares'), of Endogen, Inc., a
Massachusetts corporation (the 'Company'), at a purchase price of $3.75 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 related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the 'Offer').
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The
Purchaser will pay all charges and expenses of Vector Securities International,
Inc. (the 'Dealer Manager'), American Stock Transfer & Trust Company (the
'Depositary') and Xxxxxxxxx & Company, Inc. (the 'Information Agent').
Parent and the Purchaser are corporations affiliated with Perstorp AB, a
Swedish corporation ('Perstorp'). All of the outstanding shares of the capital
stock of the Purchaser are owned by Parent and all of the outstanding shares of
the capital stock of Parent are owned by Perstorp. For more information
concerning Perstorp, Parent and the Purchaser, see Section 9.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1) THAT NUMBER OF OUTSTANDING SHARES WHICH, TOGETHER WITH THE
OUTSTANDING SHARES SUBJECT TO THE STOCKHOLDER AGREEMENT (AS DEFINED BELOW) THAT
SHALL NOT HAVE BEEN SO TENDERED, WOULD REPRESENT AT LEAST TWO-THIRDS OF ALL
OUTSTANDING SHARES ON A FULLY DILUTED BASIS (AS DEFINED BELOW) (THE 'MINIMUM
CONDITION'). THE PURCHASER RESERVES THE RIGHT (SUBJECT TO OBTAINING THE EXPRESS
WRITTEN CONSENT OF THE COMPANY AND COMPLIANCE WITH THE APPLICABLE RULES AND
REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION (THE 'COMMISSION')), WHICH
IT PRESENTLY HAS NO INTENTION OF EXERCISING, TO WAIVE OR REDUCE THE MINIMUM
CONDITION. SEE SECTIONS 1 AND 14.
THE OFFER IS NOT CONDITIONED ON OBTAINING FINANCING.
THE BOARD OF DIRECTORS OF THE COMPANY (THE 'BOARD') HAS APPROVED THE MERGER
AGREEMENT (AS DEFINED BELOW) AND HAS DETERMINED THAT THE OFFER AND THE MERGER
(AS DEFINED BELOW) ARE FAIR TO AND IN THE BEST INTERESTS OF THE STOCKHOLDERS OF
THE COMPANY AND RECOMMENDS THAT ALL OF THE STOCKHOLDERS OF THE COMPANY ACCEPT
THE OFFER, TENDER THEIR SHARES AND APPROVE THE MERGER AGREEMENT AND THE MERGER,
IF REQUIRED BY LAW. XXXXX, XXXXXXXX & XXXX, INC. ('AH&H'), THE COMPANY'S
FINANCIAL ADVISOR, HAS DELIVERED TO THE BOARD A WRITTEN OPINION DATED MAY 27,
1999, TO THE EFFECT THAT, AS OF SUCH DATE AND BASED UPON AND SUBJECT TO CERTAIN
MATTERS STATED IN SUCH OPINION, THE $3.75 PER SHARE CASH CONSIDERATION TO BE
RECEIVED BY HOLDERS OF SHARES (OTHER THAN PARENT AND ITS AFFILIATES) PURSUANT TO
THE OFFER AND THE MERGER WAS FAIR, FROM A FINANCIAL POINT OF VIEW, TO SUCH
HOLDERS. A COPY OF THE OPINION OF AH&H IS INCLUDED AS AN ANNEX TO THE COMPANY'S
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9, WHICH IS BEING MAILED
TO STOCKHOLDERS HEREWITH, AND SHOULD BE READ CAREFULLY IN ITS ENTIRETY.
The Offer is being made pursuant to an Agreement and Plan of Merger dated
as of May 27, 1999 (the 'Merger Agreement'), among Parent, the Purchaser and the
Company. The Merger Agreement provides that the Purchaser will be merged (the
'Merger') with and into the Company after the completion of the Offer and the
satisfaction of certain conditions. As a result of the Merger, each Share issued
and outstanding immediately prior to the Effective Time (as defined in the
Merger Agreement) (other than Shares then owned by the Company, Parent, any
direct or indirect subsidiary of Parent or by stockholders of the Company, if
any, who dissent from the Merger and comply with all of the provisions of the
Massachusetts Business Corporation Law (the 'MBCL') concerning the right, if
applicable, of holders of Shares to seek appraisal of their Shares) will be
converted into the right to receive the price paid in the Offer in cash, without
interest (the 'Merger Consideration'). See Section 12 'The Merger Agreement.'
3
The consummation of the Merger is subject to the satisfaction or waiver of
a number of conditions, including, if required by law, the approval and adoption
of the Merger Agreement by the stockholders of the Company. If the Minimum
Condition is satisfied, the Purchaser will have sufficient voting power under
the MBCL to effect the Merger without the concurrence of any other stockholder
of the Company. If at least 90% of the outstanding Shares are purchased in the
Offer, the Purchaser will be able to effect a short-form merger under the MBCL
without a vote of stockholders.
In connection with the execution of the Merger Agreement, the Purchaser and
Xxxxxx entered into a Stockholder Agreement, dated as of May 27, 1999 (the
'Stockholder Agreement'), with Xxxx X. Xxxxxxx, the President and Chief
Executive Officer of the Company, Xxxxxx X. Xxxxxx, Chairman of the Board,
Xxxxxxx X. Xxxxx, Xxxxxxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx
X. Xxxxxxxxx, G&G Diagnostics Limited Partnership I, Xxxxxx X. Xxxxxx Living
Trust DTD 3/6/98 and Xxxxxxxx Xxxxxxxxxx (collectively, the 'Selling
Stockholders'), pursuant to which such Selling Stockholders have agreed to
tender pursuant to the Offer, all Shares beneficially owned by them, including
569,600 Shares currently outstanding which represent approximately 16% of the
Shares issued and outstanding, plus Shares subsequently acquired by a Selling
Stockholder through the exercise of options or otherwise, at a price per Share
equal to the price paid in the Offer, provided that such obligation to tender is
subject to certain conditions, including the Minimum Condition having been
satisfied and the Purchaser having accepted Shares for payment under the Offer.
Pursuant to the Stockholder Agreement, each Selling Stockholder has also
executed and delivered a proxy for the benefit of the Purchaser with respect to
the Shares subject to the Stockholder Agreement owned by such Selling
Stockholder to vote such Shares against certain competing transactions, as more
fully described below in Section 12 'The Stockholder Agreement.'
Pursuant to the Merger Agreement, the Company has granted the Purchaser an
irrevocable option (the 'Purchaser Stock Option') to purchase up to 690,172
Shares, which represents approximately 19.9% of the Company's outstanding Common
Stock (the 'Option Shares') at a price per share equal to the Offer Price
payable in cash. The Purchaser Stock Option may be exercised, in whole or in
part, at any time and from time to time after the date on which the Purchaser
has accepted for payment the Shares tendered pursuant to the Offer and subject
to satisfaction of the Minimum Condition if, but only if, Parent and Purchaser
agree to permanently waive the Offer Conditions set forth in the Merger
Agreement. See Section 12 'The Merger Agreement.'
The Company has represented to Parent and the Purchaser that, as of May 26,
1999, there were 3,468,202 Shares issued and outstanding, and 1,249,450 Shares
reserved for issuance upon the exercise of outstanding options and warrants.
STOCKHOLDERS ARE URGED TO READ THIS OFFER TO PURCHASE AND THE RELATED
LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR SHARES
PURSUANT TO THE OFFER.
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions set forth in the Offer
(including, if the Offer is extended or amended, the terms and conditions of any
extension or amendment), the Purchaser will accept for payment (and thereby
purchase) all Shares that are validly tendered on or prior to the Expiration
Date and not properly withdrawn as permitted by Section 3. The term 'Expiration
Date' means 12:00 Midnight, New York City time, on Tuesday, June 29, 1999,
unless and until the Purchaser, in its sole discretion, shall have extended the
period of time for which the Offer is open, in which event the term 'Expiration
Date' shall mean the latest time and date at which the Offer, as so extended by
the Purchaser, shall expire.
If the conditions of the Offer are not satisfied or waived prior to the
Expiration Date, the Purchaser reserves the right (but shall not be obligated),
subject to the terms and conditions contained in the Merger Agreement and to the
applicable rules and regulations of the Commission, (1) to terminate the Offer
and not accept for payment any Shares and return all tendered Shares to
tendering stockholders, (2) to waive all the unsatisfied conditions (other than
the Minimum Condition) and, subject to complying with the terms of the Merger
Agreement and the applicable rules and regulations of the Commission, to waive
the Minimum Condition, to accept for payment and pay for all Shares
4
validly tendered prior to the Expiration Date and not theretofore withdrawn,
(3) to extend the Offer and, subject to the right of stockholders to withdraw
Shares until the Expiration Date, to retain the Shares that have been tendered
for the period or periods for which the Offer is extended or (4) to amend the
Offer.
There can be no assurance that the Purchaser will exercise its right to
extend the Offer (other than as required by the Merger Agreement or applicable
law). Any extension, amendment or termination of the Offer, or any waiver of any
condition of the Offer, will be followed as promptly as practicable by a public
announcement. In the case of an extension, Rule 14e-1(d) under the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), requires that the
announcement be issued no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date in accordance with
the public announcement requirements of Rule 14d-4(c) under the Exchange Act.
Subject to applicable law (including Rules 14d-4(c) and 14d-6(d) under the
Exchange Act, which require that any material change in the information
published, sent or given to stockholders in connection with the Offer be
promptly disseminated to stockholders in a manner reasonably designed to inform
stockholders of such change), and without limiting the manner in which the
Purchaser may choose to make any public announcement, the Purchaser will not
have any obligation to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow Xxxxx News
Service. During any such extension, all Shares previously tendered and not
withdrawn will remain subject to the Offer and the right of a tendering
stockholder to withdraw such stockholder's Shares in accordance with the
procedures set forth in Section 3.
In the Merger Agreement, the Purchaser has agreed that it will not, without
the prior consent of the Company, extend the Offer, except that, without the
consent of the Company, the Purchaser may extend the Offer (1) if at the
Expiration Date any of the conditions to the Purchaser's obligation to accept
Shares for payment are not satisfied or waived, until such time as such
conditions are satisfied or waived (provided, each individual extension will not
exceed five (5) business days after the previously scheduled Expiration Date),
(2) for any period required by any rule, regulation, interpretation or position
of the Commission or the staff thereof and (3) on up to two occasions in each
case for a period of not more than five (5) business days beyond the latest
Expiration Date if on such Expiration Date there shall have been tendered more
than the number of Shares sufficient to satisfy the Minimum Condition but less
than 90% of the Shares. As used in this Offer to Purchase, 'business day' has
the meaning set forth in Rule 14d-1 under the Exchange Act. THE PURCHASER SHALL
NOT HAVE ANY OBLIGATION TO PAY INTEREST ON THE PURCHASE PRICE FOR TENDERED
SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS RIGHT TO EXTEND THE OFFER.
In addition, the Purchaser has agreed in the Merger Agreement that it will
not, without the consent of the Company, (1) reduce the number of Shares subject
to the Offer, (2) reduce the Offer Price, (3) add to or modify the conditions
set forth in Section 14, including the Minimum Condition, (4) except as provided
in the previous paragraph, extend the Offer, (5) change the form of the
consideration payable in the Offer or (6) amend or alter any term of the Offer
in a manner materially adverse to the Company's stockholders; provided, however,
that nothing contained in the Merger Agreement will prohibit the Purchaser, in
its sole discretion without the consent of the Company, from waiving
satisfaction of any condition of the Offer other than the Minimum Condition.
If the Purchaser extends the Offer or if the Purchaser (whether before or
after its acceptance for payment of Shares) is delayed in its acceptance for
payment of or payment for Shares or it is unable to pay for Shares pursuant to
the Offer for any reason, then, without prejudice to the Purchaser's rights
under the Offer, the Depositary may retain tendered Shares on behalf of the
Purchaser, and such Shares may not be withdrawn except to the extent tendering
stockholders are entitled to withdrawal rights as described in Section 3.
However, the ability of the Purchaser to delay the payment for Shares that the
Purchaser has accepted for payment is limited by Rule 14e-1 under the Exchange
Act, which requires that a bidder pay the consideration offered or return the
securities deposited by or on behalf of holders of securities promptly after the
termination or withdrawal of such bidder's offer.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including, with the Company's consent, the Minimum Condition), the Purchaser
will disseminate additional tender offer materials and extend the
5
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in the percentage of
securities sought or any dealer solicitation fee, 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 to allow for adequate dissemination to stockholders.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition and the other conditions set forth in Section 14. For purposes of
determining the Minimum Condition, the term 'fully diluted basis' excludes the
following: (a) all outstanding stock options issued pursuant to the Company's
1992 Stock Plan that are irrevocably terminated, consistent with Section
7.4(a)(A)(i) or (B) of the Merger Agreement, effective as of the time that the
Purchaser accepts for payment, and pays for, all Shares tendered and not
withdrawn pursuant to the Offer; (b) all outstanding options issued pursuant to
the Company's 1993 Non-Employee Director Stock Option Plan that are irrevocably
terminated by the holders of those options, effective as of the time that the
Purchaser accepts for payment, and pays for, all Shares tendered, and not
withdrawn pursuant to the Offer; and (c) a certain warrant to purchase 125,000
shares of Common Stock held by Third Wave Technologies, Inc.; provided that such
warrant is irrevocably terminated by the holder thereof, effective as of the
time that the Purchaser accepts for payment, and pays for, all Shares tendered
and not withdrawn pursuant to the Offer. Subject to the terms and conditions
contained in the Merger Agreement, the Purchaser reserves the right (but shall
not be obligated) to waive any or all of such conditions.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of the Shares. This Offer to Purchase, the related Letter of Transmittal
and other relevant materials will be mailed by the Purchaser to record holders
of Shares and will be furnished by the Purchaser to brokers, dealers, banks,
trust companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder lists or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
2. PROCEDURES FOR TENDERING SHARES
Valid Tender. For a stockholder to validly tender Shares pursuant to the
Offer, either (1) a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), together with any required signature guarantees (or an
Agent's Message (as hereinafter defined) in connection with a book-entry
transfer of Shares) and any other documents required by the Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth on the back cover page of this Offer to Purchase and either certificates
for tendered Shares must be received by the Depositary at one of such addresses
or such Shares must be delivered pursuant to the procedure for book entry
transfer set forth below (and a Book-Entry Confirmation (as hereinafter defined)
received by the Depositary), in each case, on or prior to the Expiration Date,
or (2) the tendering stockholder must comply with the guaranteed delivery
procedure set forth below.
The Depositary will establish an account with respect to the Shares at The
Depository Trust Company (the '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 in any of the Book-Entry Transfer
Facility's systems may make book-entry delivery of Shares by causing the Book
Entry Transfer Facility to transfer such Shares into the Depositary's account in
accordance with such Book-Entry Transfer Facility's procedures for such
transfer. However, although delivery of Shares may be effected through book
entry transfer into the Depositary's account at the Book-Entry Transfer
Facility, the Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees (or an Agent's Message
in connection with a book-entry transfer) and any other required documents,
must, in any case, be transmitted to, and received by the Depositary, at one of
its addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date, or the tendering stockholder must comply with the guaranteed
delivery procedure described below. The confirmation of a book-entry transfer of
Shares into the Depositary's account at the Book-Entry
6
Transfer Facility as described above is referred to herein as a 'Book-Entry
Confirmation.' DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term 'Agent's Message' means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares which are the subject of such Book Entry
Confirmation that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal, and that the Purchaser may enforce such
agreement against such participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. 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.
DELIVERY OF THE LETTER OF TRANSMITTAL AND ACCOMPANYING SHARES WILL BE DEEMED
EFFECTIVE, AND RISK OF LOSS WITH RESPECT TO SUCH LETTER OF TRANSMITTAL AND
ACCOMPANYING CERTIFICATE(S) WILL PASS, ONLY WHEN SUCH LETTER OF TRANSMITTAL AND
ACCOMPANYING CERTIFICATE(S) ARE OFFICIALLY RECEIVED BY THE DEPOSITARY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if (1) the Letter of Transmittal is signed by the registered holder
of Shares (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facility's systems whose name appears on a
security position listing as the owner of the Shares) tendered therewith and
such registered holder has not completed either the box entitled 'Special
Delivery Instructions' or the box entitled 'Special Payment Instructions' on the
Letter of Transmittal or (2) such Shares are tendered for the account of a firm
that is a participant in the Securities Transfer Agents Medallion Program or the
New York Stock Exchange 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 (each, an 'Eligible
Institution'). In all other cases, all signatures on the Letter of Transmittal
must be guaranteed by an Eligible Institution. See Instructions 1 and 5 to the
Letter of Transmittal. If the certificates for Shares are registered in the name
of a person other than the signer of the Letter of Transmittal, or if payment is
to be made or certificates for Shares not tendered or not accepted for payment
are to be issued to a person other than the registered holder of the
certificates surrendered, the tendered certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered holders or owners appear on the certificates,
with the signatures on the certificates or stock powers guaranteed as aforesaid.
See Instructions 1 and 5 to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
(1) such tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary, as provided below, on or prior to the Expiration Date;
and
(3) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to such Shares),
together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees and any
other documents required by the Letter of Transmittal, are received by the
Depositary within three trading days after the date of execution of such
Notice of Guaranteed Delivery. A 'trading day' is any day on which the
Nasdaq Stock Market is open for business.
7
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary or
transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (1) certificates for Shares (or a Book-Entry
Confirmation with respect to such Shares), (2) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer of Shares, and (3) any other documents required by the Letter of
Transmittal. Accordingly, tendering stockholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations are
actually received by the Depositary. UNDER NO CIRCUMSTANCE WILL INTEREST BE PAID
ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF
ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The valid tender of Shares pursuant to any of the procedures described
above will constitute a binding agreement between the tendering stockholder and
the Purchaser upon the terms and subject to the conditions of the Offer.
Appointment as Proxy. By executing a Letter of Transmittal as set forth
above, the tendering stockholder will irrevocably appoint designees of the
Purchaser as such stockholder's attorneys-in-fact and proxies in the manner set
forth in the Letter of Transmittal, each with full power of substitution, to the
full extent of such stockholder's rights with respect to the Shares tendered by
such stockholder and accepted for payment by the Purchaser and with respect to
any and all other Shares or other securities or rights issued or issuable in
respect of such Shares on or after June 2, 1999. All such proxies shall be
considered coupled with an interest in the tendered Shares. Such appointment
will be effective when, and only to the extent that, the Purchaser accepts for
payment Shares tendered by such stockholder as provided herein. Upon such
acceptance for payment, all prior powers of attorney and proxies given by such
stockholder with respect to such Shares or other securities or rights will,
without further action, be revoked and no subsequent powers of attorney and
proxies may be given (and, if given, will not be deemed effective). The
designees of the Purchaser will thereby be empowered to exercise all voting and
other rights with respect to such Shares or other securities or rights in
respect of any annual, special or adjourned meeting of the Company's
stockholders, or otherwise, as they in their sole discretion deem proper. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, immediately upon the Purchaser's acceptance for payment of
such Shares, the Purchaser must be able to exercise full voting and other rights
with respect to such Shares and other securities or rights, including voting at
any meeting of stockholders then scheduled. Such powers of attorney and proxies
will be irrevocable and will be granted in consideration of the acceptance for
payment of such Shares in accordance with the terms of the Offer.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for Shares which may, in the opinion of the
Purchaser's counsel, be unlawful. The Purchaser also reserves the absolute right
to waive any defect or irregularity in any tender with respect to any particular
Shares, whether or not similar defects or irregularities are waived in the case
of other Shares. No tender of Shares will be deemed to have been validly made
until all defects or irregularities relating thereto have been cured or waived.
None of the Purchaser, Parent, the Dealer Manager, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
Backup Withholding. In order to avoid 'backup withholding' of Federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must (1) provide the Depositary with such stockholder's
correct taxpayer identification number ('TIN') on a Substitute Form W-9 and (2)
certify under penalty of perjury that such TIN is correct and that such
stockholder is not subject to backup withholding. Certain stockholders
(including, among others, all corporations and
8
certain foreign individuals and entities) are not subject to backup withholding.
If a stockholder does not provide its correct TIN or fails to provide the
certifications described above, the Internal Revenue Service ('IRS') may impose
a penalty on such stockholder and payment of cash to such stockholder pursuant
to the Offer may be subject to backup withholding of 31%. All stockholders
surrendering Shares pursuant to the Offer should complete and sign the
Substitute Form W-9 included as part of the Letter or Transmittal to provide the
information and certification necessary to avoid backup withholding (unless an
applicable exemption exists and is proved in a manner satisfactory to the
Purchaser and the Depositary). Noncorporate foreign stockholders should complete
and sign a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See
Instruction 9 to the Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn on or at any
time prior to the Expiration Date and, unless theretofore accepted for payment
and paid for as provided herein, may also be withdrawn on or after August 2,
1999 (or such other date as may apply if the Offer is extended).
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person who tendered the Shares to be withdrawn, the
number of Shares to be withdrawn and the name of the registered holder, if
different from that of the person who tendered such 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
the particular certificates evidencing the Shares to be withdrawn and a signed
notice of withdrawal with signatures guaranteed by an Eligible Institution,
except in the case of Shares tendered by an Eligible Institution, must also be
furnished to the Depositary as aforesaid. If Shares have been delivered pursuant
to the procedure for book-entry transfer set forth in Section 2, any notice of
withdrawal must also specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares and
otherwise comply with the Book-Entry Transfer Facility's procedures.
Any questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in its sole
discretion, which determination shall be final and binding on all parties. None
of the Purchaser, Parent, the Dealer Manager, 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. Any Shares withdrawn will be deemed to be
not validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered by following one of the procedures described in Section 2 at any time
on or prior to the Expiration Date.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT OF PURCHASE PRICE
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will purchase by accepting for payment, and will
pay for, all Shares validly tendered on or prior to the Expiration Date and not
properly withdrawn (in accordance with the procedures set forth in Section 3),
promptly after the Expiration Date. The Purchaser expressly reserves the right
to delay acceptance for payment of, or, subject to Rule 14e-l(c) promulgated
under the Exchange Act, payment for, Shares in order to comply in whole or in
part with any applicable law. See Sections 14 and 15. In all cases, payment for
Shares purchased pursuant to the Offer will be made only after timely receipt by
the Depositary of (1) certificates for such Shares (or a Book-Entry
Confirmation) pursuant to the procedures set forth in Section 2, (2) a Letter of
Transmittal (or a facsimile copy thereof), properly completed and duly executed,
or an 'Agent's Message,' and (3) any other documents required by the Letter of
Transmittal.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment (and thereby purchased) Shares validly tendered to the Purchaser on
or prior to the Expiration Date and not
9
properly withdrawn if, as and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares pursuant
to the Offer. Upon the terms and subject to the conditions of the Offer, payment
for Shares purchased pursuant to the Offer will be made by deposit of the
purchase price with the Depositary, which will act as agent for tendering
stockholders for the purpose of receiving payments from the Purchaser and
transmitting payments to tendering stockholders. Under no circumstances will
interest on the purchase price of the Shares be paid by the Purchaser by reason
of any delay in making such payment. If the Purchaser is delayed in its
acceptance for payment or payment for Shares or is unable to accept for payment
or pay for Shares tendered pursuant to the Offer for any reason, then, without
prejudice to the Purchaser's rights under the Offer, the Depositary may, subject
to Rule 14e-1(c) promulgated under the Exchange Act, retain tendered Shares on
behalf of the Purchaser, and such Shares may not be withdrawn except to the
extent tendering stockholders are entitled to withdrawal rights as set forth in
Section 3. The Purchaser will pay any transfer taxes incident to the transfer to
it of validly tendered Shares, except as otherwise provided in Instruction 6 to
the Letter of Transmittal, as well as charges and expenses of the Dealer
Manager, the Depositary and the Information Agent.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if certificates are submitted which represent more Shares than are
tendered, certificates for such Shares not purchased or tendered will be
returned (or, in the case of Shares delivered by book-entry transfer within the
Book-Entry Transfer Facility pursuant to the procedures set forth in Section 2,
such Shares will be credited to an account maintained within the Book Entry
Transfer Facility) without expense to the tendering stockholder, as promptly as
practicable following the expiration, termination or withdrawal of the Offer.
Certificates representing Shares cancelled in the Merger will not be returned.
If, prior to the Expiration Date, the Purchaser shall increase the
consideration offered to stockholders pursuant to the Offer, such increased
consideration shall be paid to all stockholders whose Shares are purchased
pursuant to the Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, with the consent of the Company, its right to purchase
Shares tendered pursuant to the Offer, but any such transfer or assignment will
not relieve the Purchaser of its obligations under the Offer and will not
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
5. CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain United States Federal income tax
consequences of the receipt of cash for Shares pursuant to the Offer or the
Merger. This discussion is based on the Internal Revenue Code of 1986, as
amended (the 'Code'), judicial and administrative decisions thereunder, existing
temporary and proposed regulations and Internal Revenue Service rulings and
other pronouncements.
THIS SUMMARY IS FOR GENERAL INFORMATION ONLY AND DOES NOT ADDRESS ALL
ASPECTS OF INCOME TAXATION THAT MAY BE RELEVANT TO STOCKHOLDERS. FOR EXAMPLE,
THIS DISCUSSION DOES NOT ADDRESS TAX CONSEQUENCES UNDER ANY APPLICABLE FOREIGN,
STATE, LOCAL OR OTHER TAX LAWS. IN ADDITION, THIS DISCUSSION DOES NOT ADDRESS
THE FEDERAL INCOME TAX CONSEQUENCES OF THE RECEIPT OF CASH FOR SHARES PURSUANT
TO THE OFFER OR THE MERGER TO PARTICULAR CATEGORIES OF TAXPAYERS SUBJECT TO
SPECIAL TREATMENT UNDER UNITED STATES FEDERAL INCOME TAX LAWS, SUCH AS TRUSTS,
FINANCIAL INSTITUTIONS, BROKER-DEALERS, PERSONS WHO ARE NOT CITIZENS OR
RESIDENTS OF THE UNITED STATES, TAX-EXEMPT ORGANIZATIONS, LIFE INSURANCE
COMPANIES, EMPLOYEES WHO ACQUIRED THEIR SHARES THROUGH THE EXERCISE OF AN
EMPLOYEE STOCK OPTION OR OTHERWISE AS COMPENSATION AND PERSONS WHO RECEIVED
PAYMENTS IN RESPECT OF OPTIONS TO ACQUIRE SHARES. EACH STOCKHOLDER SHOULD
CONSULT WITH SUCH STOCKHOLDER'S OWN TAX ADVISOR AS TO THE PARTICULAR TAX
CONSEQUENCES TO SUCH STOCKHOLDER OF THE RECEIPT OF CASH FOR SHARES PURSUANT TO
THE OFFER OR THE MERGER, INCLUDING THE CONSEQUENCES UNDER FEDERAL, STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for Federal income tax purposes. Generally, a stockholder
will recognize gain or loss in an amount equal to the difference between the
cash received and the stockholder's adjusted tax basis in the Shares. For
10
Federal income tax purposes, such gain or loss will be capital gain or loss if
the Shares are held as a capital asset by the stockholder, and long-term capital
gain or loss if the stockholder has held such Shares for more than one year,
measured as of the date the Purchaser accepts such Shares for payment pursuant
to the Offer or the Effective Time of the Merger, as the case may be.
Under current law, capital gains recognized by individuals on capital
assets held for more than one year ('long-term capital gains') will be taxable
at a maximum rate of 20%.
Capital losses are generally deductible only to the extent of capital gains
plus, in the case of noncorporate taxpayers, up to $3,000 of ordinary income.
Capital losses that do not offset capital gains or ordinary income as described
above may be carried forward to offset capital gains or up to $3,000 of ordinary
income per year in future years.
6. PRICE RANGE OF SHARES; DIVIDENDS
The Shares are traded on the Nasdaq SmallCap Market and quoted under the
symbol 'ENDG' and on the Boston Stock Exchange under the symbol 'EDG.' For the
period from June 1, 1997 the table below sets forth, the high and low sale
prices per Share, as reported by the Nasdaq SmallCap Market. The prices set
forth below are as reported in published financial sources and do not include
retail markups, markdowns or commissions.
HIGH LOW
YEAR ENDED MAY 31, 1998
First Quarter.............................................................. 4 5/8 3 1/8
Second Quarter............................................................. 6 3 3/8
Third Quarter.............................................................. 4 1/4 3 1/2
Fourth Quarter............................................................. 4 11/16 3 11/16
YEAR ENDED MAY 31, 1999
First Quarter.............................................................. 4 2 3/4
Second Quarter............................................................. 3 5/8 2 1/4
Third Quarter.............................................................. 4 3/4 3 1/32
Fourth Quarter............................................................. 3 9/16 2
YEAR ENDING MAY 31, 2000
First Quarter (through June 1, 1999)....................................... 3 9/16
On May 26, 1999, the last full trading day prior to the date of the
announcement of the Offer, the last sale price per Share as reported on the
Nasdaq SmallCap Market was $2.875. On June 1, 1999, the last trading day prior
to the date of this Offer to Purchase, the last sale price per Share as reported
on the Nasdaq SmallCap Market was $3.5625. Stockholders are urged to obtain
current market quotations for the Shares.
The Company has never paid any cash dividends on the Shares. The Merger
Agreement provides that, without the prior written consent of Parent, the
Company will not declare, set aside or pay any dividend on or make any other
distribution in respect of any of its capital stock. See Section 12.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NASDAQ AND BOSTON STOCK
EXCHANGE QUOTATIONS; EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS
The purchase of Shares pursuant to the Offer will reduce the number of
holders of Shares and the number of Shares that might otherwise trade publicly
and could adversely affect the liquidity and market value of the remaining
Shares held by the public.
Depending upon the number of Shares purchased pursuant to the Offer, the
Shares may no longer meet the requirements of the National Association of
Securities Dealers, Inc. (the 'NASD') for continued inclusion in the Nasdaq
SmallCap Market. Continued inclusion on Nasdaq generally requires (i) either at
least $2,000,000 in net tangible assets, a $35,000,000 market capitalization or
net income of at least $500,000 in two of the three prior years, (ii) at least
500,000 shares in the public float valued at
11
$1,000,000 or more, (iii) a minimum Common Stock bid price of $1.00, (iv) at
least two active market makers, and (v) at least 300 shareholders of Common
Stock. If these standards are not met, the Shares might nevertheless continue to
be included in The Nasdaq Stock Market with quotations published in the Nasdaq
'additional list' or in one of the 'local lists,' but if the number of holders
of the Shares were to fall below 300, or if the number of publicly held Shares
were to fall below 100,000 or there were not at least two registered and active
market makers for the Shares, the NASD's rules provide that the Shares would no
longer be 'qualified' for Nasdaq reporting and Nasdaq would cease to provide any
quotations. Shares held directly or indirectly by directors, officers or
beneficial owners of more than 10% of the Shares are not considered as being
publicly held for this purpose. According to the Company, as of May 26, 1999,
there were approximately 356 holders of record of Shares and 3,468,202 Shares
were outstanding. If, as a result of the purchase of Shares pursuant to the
Offer, the Shares no longer meet the requirements of the NASD for continued
inclusion in the Nasdaq SmallCap Market or The Nasdaq Stock Market, as the case
may be, the market for Shares could be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD
for quotation through Nasdaq and the Shares are no longer included in The Nasdaq
SmallCap Market, it is possible that, prior to the Effective Time, the Shares
would continue to trade in the over-the-counter market and that price quotations
would be reported by other sources. The extent of the public market for the
Shares and the availability of such quotations would, however, depend upon the
number of holders of Shares remaining at such time, the interests in maintaining
a market in Shares on the part of securities firms, the possible termination of
registration of the Shares under the Exchange Act, as described below, and other
factors.
Similarly, depending upon the number of Shares purchased pursuant to the
Offer, the Shares may no longer meet the requirements of the Boston Stock
Exchange for continued listing on the Boston Stock Exchange. Continued listing
on the Boston Stock Exchange generally requires that companies have (i) at least
$1,000,000 in total assets, (ii) at least 150,000 shares in the public float
valued at $500,000 or more, (iii) at least 250 beneficial holders of Common
Stock, and (iv) stockholders equity of at least $500,000.
The Shares are currently registered under the Exchange Act. Registration of
the Shares under the Exchange Act may be terminated upon application of the
Company to the Commission if the Shares are neither listed on a national
securities exchange nor held by 300 or more holders of record. Termination of
registration of the Shares under the Exchange Act would, subject to Section
15(d) of the Exchange Act, substantially reduce the information required to be
furnished by the Company to its stockholders and to the Commission and would
make certain provisions of the Exchange Act no longer applicable to the Company,
such as the short-swing profit recovery provisions of Section 16(b) of the
Exchange Act, the requirement of furnishing a proxy or information statement
pursuant to Section 14(a) or (c) of the Exchange Act in connection with
stockholders' meetings and the related requirement of furnishing an annual
report to stockholders and the requirements of Rule 13e-3 under the Exchange Act
with respect to 'going private' transactions. Furthermore, the ability of
'affiliates' of the Company and persons holding 'restricted securities' of the
Company to dispose of such securities pursuant to Rule 144 or 144A promulgated
under the Securities Act of 1933, as amended, may be impaired or eliminated.
THE PURCHASER INTENDS TO SEEK TO CAUSE THE COMPANY TO APPLY FOR DELISTING
OF THE SHARES FROM THE NASDAQ SMALLCAP MARKET AND THE BOSTON STOCK EXCHANGE AND
TERMINATION OF REGISTRATION OF THE SHARES UNDER THE EXCHANGE ACT AS SOON AFTER
THE COMPLETION OF THE OFFER AS THE REQUIREMENTS FOR SUCH DELISTING AND/OR
TERMINATION ARE MET. IF REGISTRATION OF THE SHARES IS NOT TERMINATED PRIOR TO
THE MERGER, THEN THE REGISTRATION OF THE SHARES UNDER THE EXCHANGE ACT WILL BE
TERMINATED FOLLOWING THE CONSUMMATION OF THE MERGER.
The Shares are currently 'margin securities' under the regulations of the
Board of Governors of the Federal Reserve System (the 'Federal Reserve Board'),
which has the effect, among other things, of allowing brokers to extend credit
on the collateral of the Shares. Depending upon factors similar to those
described above regarding listing and market quotations, it is possible that,
following the Offer, the Shares would no longer constitute 'margin securities'
for the purposes of the margin regulations of the Federal Reserve Board and
therefore could no longer be used as collateral for loans made by brokers. If
registration of Shares under the Exchange Act were terminated, the Shares would
no longer be 'margin securities.'
12
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Massachusetts corporation with its principal executive
offices located at 00 Xxxxxxxx Xxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and its
telephone number is (000) 000-0000. Except as otherwise set forth herein, the
information concerning the Company contained in this Offer to Purchase,
including financial information, has been furnished by the Company or has been
taken from or based upon publicly available documents and records on file with
the Commission and other public sources. Although neither Parent nor the
Purchaser has any knowledge that would indicate that statements contained herein
based upon such documents are untrue, none of the Purchaser, Parent, the Dealer
Manager, the Depositary or the Information Agent assumes any responsibility for
the accuracy or completeness of the information concerning the Company furnished
by the Company or contained in such documents and records or for the failure to
disclose events which may have occurred or may affect the significance or
accuracy of any such information but which are unknown to the Purchaser and
Parent.
The Company is a supplier of specialty reagents, immuno-assay test kits and
molecular research products to customers involved in biomedical research, the
biotechnology industry and pharmaceutical drug discovery. The Company uses
monoclonal antibody and recombinant DNA technology to develop and manufacture
products in the field of cytokines, chemokines and related immune system
factors, the chemical messengers which convey signals within the immune system.
Set forth below is certain selected consolidated financial information
excerpted from the information contained or incorporated by reference in the
Company's Annual Report on Form 10-KSB for the fiscal year ended May 31, 1998
(the 'Company 10-K') and the Company's Quarterly Report on Form 10-QSB for the
quarter ended February 28, 1999 (the 'Company 10-Q'). More comprehensive
financial information is included or incorporated by reference in the Company
10-K and the Company 10-Q, and the reports and other documents filed by the
Company with the Commission. The following summary is qualified in its entirety
by reference to such reports and other documents and all of the financial
information and notes contained therein. Such reports and other documents may be
examined at, and copies obtained from, the offices of the Commission in the
manner set forth below.
ENDOGEN, INC.
SELECTED CONSOLIDATED FINANCIAL DATA
FOR THE NINE MONTHS ENDED FOR THE FISCAL YEAR ENDED
FEBRUARY 28, MAY 31,
---------------------------- -----------------------------
1998 1999 1997 1998
------------ ------------ ------------- ------------
(UNAUDITED)
INCOME STATEMENT DATA
Revenue.............................................. $7,402,215 $7,469,232 $ 9,589,301 $ 10,033,451
Income (loss) from operations........................ $ 438,118 $ (458,524) $ 737,107 $ 509,166
Net income (loss).................................... $ 286,467 $ (461,511) $ 975,595 $ 457,654
Basic earnings (loss) per share...................... $ 0.08 $ (0.13) $ 0.32 $ 0.13
Diluted earnings (loss) per share.................... $ 0.08 $ (0.13) $ 0.29 $ 0.13
Weighted average shares outstanding (basic).......... 3,429,452 3,452,980 3,095,262 3,432,590
Weighted average shares outstanding (diluted)........ 3,634,221 3,452,980 3,394,662 3,626,311
FEBRUARY 28, MAY 31,
1999 1998
------------ ----------
(UNAUDITED)
BALANCE SHEET DATA
Working capital...................................... $3,590,443 $3,695,610
Total current assets................................. $5,030,477 $4,991,689
Total assets......................................... $7,563,273 $7,920,321
Term notes payable and capital lease obligations..... $ 85,287 $ 202,919
Total stockholders' equity........................... $6,037,952 $6,421,323
13
The Company is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports, proxy statements and other
information relating to its business, financial condition and other matters with
the Commission. Certain information as of particular dates concerning the
Company's directors and officers, their compensation, Company Stock Options (as
defined below) granted to them, the principal holders of the Company's
securities and any material interest of such persons in transactions with the
Company is required to be disclosed in proxy statements distributed to the
Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection by anyone
without charge at the Public Reference Section of the Commission at Room 0000,
Xxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, and at the
regional offices of the Commission located at Seven World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. Copies of such materials may be obtained
from the Public Reference Section of the Commission upon payment of prescribed
fees. The Commission also maintains a World Wide Web site on the internet at
xxxx://xxx.xxx.xxx that contains reports and certain other information regarding
registrants that file electronically with the Commission, including the Company.
Such information should also be on file at The Nasdaq Stock Market, 0000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 and the Boston Stock Exchange, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
9. CERTAIN INFORMATION CONCERNING PERSTORP, THE PURCHASER AND PARENT
Perstorp is a Swedish corporation engaged in the chemicals and materials
technology industry. Perstorp's shares are publicly traded and listed on the
Stockholm and London stock exchanges.
Parent is a Swedish corporation engaged in the biotechnology and medical
technology industries. Parent was formerly operated as Perstorp's life science
division. All of the outstanding shares of capital stock of Parent are owned by
Perstorp. On April 24, 1999, at Perstorp's Annual General Meeting, the
shareholders of Perstorp voted to approve the board of directors' proposal that
all of the outstanding shares of capital stock of Parent will be spun off to
Perstorp's shareholders in late 1999.
The Purchaser is a Massachusetts corporation formed solely for the purpose
of consummating the Offer and the Merger and carrying out related transactions.
Parent owns all of the outstanding shares of capital stock of the Purchaser. It
is not anticipated that the Purchaser will have any significant assets or
liabilities other than those arising under the Merger Agreement or in connection
with the Offer and the Merger, or engage in any activities other than those
incident to its formation and capitalization, the Offer and the Merger and
accordingly, no meaningful financial information regarding the Purchaser is
available. The address of the principal place of business of the Purchaser is
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and its telephone number is
(000) 000-0000. The address of the principal place of business of Parent and
Perstorp is SE-000 00, Xxxxxxxx, Xxxxxx and the telephone number is
000-00-000-000-00.
Except as described in the discussion of the Merger Agreement and the
Stockholder Agreement in Section 12, none of the entities referred to above in
this Section 9 or any of their respective subsidiaries or, to the best of their
knowledge, any of the persons listed on Schedule I beneficially owns or has the
right to acquire any Shares, and none of such persons or entities has effected
any transactions in the Shares during the past 60 days. For certain information
concerning Perstorp, the Purchaser and Parent, see Schedule I hereto.
Except as described in this Offer to Purchase, none of the entities
referred to above in this Section 9 or, to the best of their knowledge, any of
the persons listed on Schedule I, has any contract, arrangement, understanding
or relationship with any other person with respect to the securities of the
Company, including, but not limited to, any contract, arrangement, understanding
or relationship concerning the transfer or the voting of any such securities,
joint ventures, loan or option agreements, puts or calls, guarantees of loans,
guarantees against loss or the giving or withholding of proxies. Except as
described in this Offer to Purchase, none of the entities referred to above in
this Section 9 or, to the best of their knowledge, any of the persons listed on
Schedule I, has had, since January 1, 1995, any transactions with the Company or
any of its executive officers, directors or affiliates that would require
disclosure under the rules of the Commission. Except as described in this Offer
to Purchase, since such
14
date, there have been no contacts, negotiations or transactions between any of
the entities referred to in this Section 9 or, to the best of their knowledge,
any of the persons listed on Schedule I, and the Company or its affiliates
concerning a merger, consolidation or acquisition, a tender offer or other
acquisition of securities, an election of directors or a sale or other transfer
of a material amount of assets. None of the entities or persons referred to
above in this Section 9 or, to the best of their knowledge, any of the persons
listed on Schedule I, has had any relationship with the Company prior to the
commencement of discussions that led to the execution of the Merger Agreement.
Each of the entities referred to in this Section disclaims that it is an
'affiliate' of the Company within the meaning of Rule 13e-3 under the Exchange
Act.
For certain information concerning the directors and executive officers of
the Purchaser, Parent and Perstorp, see Schedule I to this Offer to Purchase.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY
In January 1999, representatives of AH&H, the Company's financial
advisor, contacted the senior management of Xxxxxx Chemical Company ('Xxxxxx'),
an affiliate of the Purchaser and a wholly-owned subsidiary of the Parent, to
inquire as to Xxxxxx'x interest in pursuing a transaction with the Company.
Following this contact, Xxxxxx initiated a review of certain publicly available
information concerning the Company and contacted representatives of AH&H to
advise them that Xxxxxx would be interested in reviewing non-public information
about the Company and meeting with members of the Company's senior management.
On January 11, 1999, Xxxxxx entered into a confidentiality agreement (the
'Confidentiality Agreement') with the Company.
On February 16, 1999, representatives of Xxxxxx met with certain members of
the Company's senior management regarding the business, strategies and prospects
of the Company.
On March 23, 1999, representatives of Xxxxxx and its financial advisor
Vector Securities International, Inc. ('Vector'), met with representatives of
the Company and AH&H and conducted a preliminary review of certain non-public
information. From March 23, 1999 through April 29, 1999, Xxxxxx, Xxxxxx'x
advisors, the Company's senior management and the Company's advisors engaged in
various discussions regarding the business, strategies and prospects of the
Company and the possible terms of a potential transaction.
On April 19, 1999, Vector, on behalf of Parent, submitted a non-binding
letter of interest to acquire all of the Shares for $3.00 per share in cash,
subject to, among other things, Parent completing a due diligence review of the
Company and the execution of a definitive agreement.
During the weeks of April 19 and April 26, 1999, AH&H, on behalf of the
Company, led negotiations with Parent.
On April 28, 1999, Vector, on behalf of Parent, submitted a revised
non-binding letter of interest to acquire all the Shares for $3.75
per Share in cash.
On May 3, 1999, Xxxxxx and its representatives continued their review of
the Company. On May 7, 1999 the Company's counsel received an initial draft
of the proposed Merger Agreement and the proposed Stockholder Agreement.
During the week of May 10, 1999 the Company's counsel and Xxxxxx's counsel
discussed a number of issues presented by the draft Merger Agreement and
draft Stockholder Agreement. Concurrently, management of Parent and the Company
began discussions of the continued employment of certain employees of the
Company.
During these discussions, Xxxxxx insisted that the Company enter into
an exclusivity agreement before it would continue negotiations. The Exclusivity
Agreement was executed on May 12, 1999 and subsequently expired on May 22, 1999.
During the week of May 17, 1999, AH&H and the Company's counsel, in
consultation with senior management and the Board of Directors, continued
to negotiate with Xxxxxx's counsel the terms and conditions of the proposed
Merger Agreement, including price, termination fee, representations and
warranties, covenants, termination provisions and conditions to the Offer.
During this period, Company counsel, in consultation with management and
the Board of Directors, also reviewed and continued to negotiate with
Xxxxxx's counsel the various terms of the Stock-holder Agreement.
15
On May 24, 1999, Xx. Xxxxxxx and several other employees of the Company
received draft employment agreements from Parent (the 'Employment Agreements'),
which Parent required to be entered into as a condition to entering into the
Merger Agreement. These employees of the Company retained counsel separate from
the Company's counsel to negotiate the Employment Agreements, and between May 24
and May 27, 1999, counsel to Parent and these employees, along with management
of Parent and these employees, negotiated the terms of the Employment
Agreements.
Counsel for the Company and Parent continued the final negotiation of
the transaction documents. The Merger Agreement, the Stockholder Agreement
and the Employment Agreements were executed and a joint press release was
issued by the parties announcing the Merger Agreement on the morning of
May 27, 1999.
11. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; APPRAISAL RIGHTS
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. Following the Offer, the Purchaser and Parent intend
to acquire any remaining equity interest in the Company not acquired in the
Offer by consummating the Merger.
The MBCL requires, among other things, that the adoption of any plan of
merger or consolidation of the Company must be approved by the Board and
generally by the holders of the Company's outstanding voting securities. The
Board has approved the Offer and the Merger; consequently, the only additional
action of the Company that may be necessary to effect the Merger is approval by
such stockholders if the 'short-form' merger procedure described below is not
available. Under the MBCL, the affirmative vote of holders of two-thirds of the
outstanding Shares (including any Shares owned by the Purchaser) is generally
required to approve the Merger. If the Purchaser acquires, through the Offer or
otherwise, voting power with respect to at least two-thirds of the outstanding
Shares (which would be the case if the Minimum Condition were satisfied and the
Purchaser were to accept for payment Shares tendered pursuant to the Offer,
including the Shares subject to the Stockholder Agreement tendered by the
Selling Stockholders pursuant to the Offer), it would have sufficient voting
power to effect the Merger without the vote of any other stockholder of the
Company. However, the MBCL also provides that if a parent company owns at least
90% of each class of stock of a subsidiary, the parent company can effect a
short-form merger with that subsidiary without the action of the other
stockholders of the subsidiary. Accordingly, if, as a result of the Offer or
otherwise, the Purchaser acquires or controls the voting power of at least 90%
of the outstanding Shares, the Purchaser could, and intends to, effect the
Merger without prior notice to, or any action by, any other stockholder of the
Company.
Plans for the Company. Except as otherwise set forth in this Offer to
Purchase, it is expected that, initially following the Merger, the business and
operations of the Company will be continued by the Surviving Corporation (as
defined below) substantially as they are currently being conducted. Parent
intends to operate the Company as a wholly owned subsidiary. Except as indicated
in this Offer to Purchase, Parent does not have any present plans or proposals
that relate to or would result in any material change in the Company's
capitalization or dividend policy or the composition of the Company's Board or
management. Parent and its affiliates regularly consider, and engage in
discussions concerning, potential investments in businesses, including
businesses that may be competitive with or complementary to the business of the
Company. There are currently no agreements with respect to an investment in any
such business. However, Parent may consider a merger, consolidation or other
extraordinary transaction involving the Company in connection with any such
investment.
Parent will evaluate the business, operations, capitalization and
management of the Company during the pendency of the Offer and after
consummation of the Offer, and will take such actions as it deems appropriate
under the circumstances then existing with a view to optimizing the Company's
financial performance.
The Merger Agreement provides that promptly upon the acceptance for payment
of, and payment for, any Shares by the Purchaser pursuant to the Offer, the
Purchaser shall be entitled to designate such number of the directors on the
Board such that the Purchaser, subject to compliance with Section 14(f) of the
Exchange Act, will control a majority of such directors, and the Company and its
Board shall, at
16
such time, take all such action needed to cause the Purchaser's designees to be
appointed to the Company's Board. Subject to applicable law, the Company has
agreed to take all action requested by Parent necessary to effect any such
election, including mailing to its stockholders the Information Statement
containing the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder, which Information Statement is attached as
Annex A to the Schedule 14D-9. Parent's current intentions are to designate
Xxxx Xxxxxxxx, a director of Parent, and the persons set forth in Schedule I
as directors of the Purchaser to serve on the Company's Board following
consummation of the Offer. In addition, following consummation of the Offer,
all of the current members of the Board will resign other than Xxxx X. Xxxxxxx.
Parent's current intentions are that, immediately after the Effective Time, the
members of the Company Board immediately prior to the Effective Time, other
than Xxxxxxx Xxxxxxxxx, will serve as directors of the Surviving Corporation,
and the initial officers of the Company will be the current officers of the
Company and such other persons as are designated by Parent.
The Company has entered into the Employment Agreements, pursuant to which
certain employees will continue to serve in their current positions with the
Company after consummation of the Merger. See Section 12 'Employment
Agreements.'
Appraisal Rights. Holders of Shares do not have dissenters' rights as a
result of the Offer. However, if the Merger is consummated, holders of Shares
will have certain rights pursuant to the provisions of Sections 85 through 98,
inclusive, of the MBCL to dissent in writing and demand appraisal of, and to
receive payment in cash of the 'fair value' (as such term is used in the MBCL)
of, their Shares. According to the provisions of Sections 85 through 98 of the
MBCL, the Parent and the dissenting holders of Xxxxxx may attempt to agree upon
the fair market value of their Shares. If the Parent and the dissenting holders
of the Shares fail to agree, and if the statutory procedures were complied with,
the dissenting holders of Shares could demand such rights could lead to a
judicial determination of the fair value required to be paid in cash to such
dissenting holders for their Shares. Any such judicial determination of the fair
value of Shares could be based upon considerations other than or in addition to
the Offer Price, the Merger Consideration or the market value of the Shares,
including asset values and the investment value of the Shares. The value so
determined could be more or less than the Offer Price or the Merger
Consideration.
If any holder of Shares who demands appraisal under Sections 85 through 98,
inclusive, of the MBCL fails to perfect, or effectively withdraws or loses his
right to appraisal, as provided in the MBCL, the Shares of such stockholder will
be converted into the Merger Consideration in accordance with the Merger
Agreement. A stockholder may withdraw his demand for appraisal by delivery to
Parent of a written withdrawal of his demand for appraisal and acceptance of the
Merger.
The foregoing discussion is not a complete statement of law pertaining to
appraisal rights under the MBCL and is qualified in its entirety by the full
text of Sections 85 through 98, inclusive of the MBCL.
FAILURE TO FOLLOW THE STEPS REQUIRED BY SECTIONS 85 THROUGH 98, INCLUSIVE,
OF THE MBCL FOR PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE LOSS OF SUCH
RIGHTS.
12. THE MERGER AGREEMENT; STOCKHOLDER AGREEMENT; EMPLOYMENT AGREEMENTS AND
CONFIDENTIALITY AGREEMENT
THE MERGER AGREEMENT
The Merger Agreement provides that following the satisfaction of the
conditions described below under 'Conditions to the Merger,' the Purchaser will
be merged with and into the Company, and each then outstanding Share (other than
Shares then owned by the Company, Parent, or any direct or indirect wholly owned
subsidiary of Parent or by stockholders, if any, who dissent from the Merger and
comply with all of the provisions of the MBCL concerning the right, if
applicable, of holders of Shares to seek appraisal of their Shares) will be
converted into the right to receive the price per Share paid in the Offer.
The Offer. The Merger Agreement provides for the making of the Offer. The
obligation of the Purchaser to accept for payment or pay for Shares tendered
pursuant to the Offer is subject to the
17
satisfaction of the Minimum Condition and certain other conditions that are
described in Section 14. The Merger Agreement provides that the Purchaser may
extend the Offer by giving oral or written notice of such extension to the
Depositary, without the consent of the Company, only (1) if at the Expiration
Date any of the conditions to the Purchaser's obligations to accept Shares for
payment are not satisfied or waived, until such time as such conditions are
satisfied or waived (each individual extension not to exceed five (5) business
days after the previously scheduled Expiration Date), (2) for any period
required by any rule, regulation, interpretation or position of the Commission
or the staff thereof applicable to the Offer, and (3) on up to two occasions
in each case for period of not more than five (5) business days beyond the
latest Expiration Date if on such Expiration Date there shall have been tendered
more than the number of Shares sufficient to satisfy the Minimum Condition but
less than 90% of the Shares. In addition, the Purchaser has agreed in the Merger
Agreement that it will not, without the express written consent of the Company
and after giving oral or written notice of such extension to the Depositary,
(1) reduce the number of Shares subject to the Offer, (2) reduce the Offer
Price, (3) add to or modify the conditions set forth in Section 14, including
the Minimum Condition, (4) except as provided above, extend the Offer if all of
the conditions set forth in Section 14 are satisfied or waived, (5) change the
form of the consideration payable in the Offer or (6) amend or alter any term
of the Offer in any manner materially adverse to the Company's stockholders;
provided, however, that nothing contained in the Merger Agreement will prohibit
the Purchaser, in its sole discretion without the consent of the Company, from
waiving satisfaction of any condition of the Offer other than the Minimum
Condition.
Pursuant to the Merger Agreement, the Company has granted the Purchaser the
Purchaser Stock Option, which is an irrevocable option to purchase the Option
Shares, which constitute up to 690,172 shares of Company Common Stock
representing approximately 19.9% of the Company's outstanding Common Stock
at a price per share equal to the Offer Price payable in cash. The Purchaser
Stock Option may be exercised, in whole or in part, at any time and from time
to time after the date on which the Purchaser has accepted for payment the
Shares tendered pursuant to the Offer and subject to satisfaction of the
Minimum Condition if, but only if, Parent and Purchaser agree to permanently
waive the Offer Conditions set forth in the Merger Agreement.
The Merger. The Merger Agreement provides that, upon the terms and subject
to the conditions thereof, the Purchaser shall be merged with and into the
Company. As a result of the Merger, the separate corporate existence of the
Purchaser will cease and the Company will be the surviving corporation (the
'Surviving Corporation'). As a result of the Merger, each Share issued and
outstanding immediately prior to the Effective Time (other than Shares then
owned by the Company, Parent, the Purchaser or any other direct or indirect
wholly owned subsidiary of Parent, or by stockholders of the Company, if any,
who dissent from the Merger and comply with all the provisions of the MBCL
concerning the right, if applicable, of holders of Shares to seek appraisal of
their Shares) will be converted into the right to receive the Merger
Consideration. As a result of the Merger each issued and outstanding share of
capital stock of Purchaser will be automatically converted into one share of the
common stock of the Surviving Corporation.
Termination of the Merger Agreement. The Merger Agreement may be terminated
at any time prior to the Effective Time, whether before or after approval of the
terms of the Merger Agreement by the stockholders of the Company, (1) by mutual
written consent of the Company and Parent, (2) by either the Company or Parent
if (a)(i) as a result of any of the conditions to the Offer not being satisfied,
the Offer shall have been terminated or expired in accordance with its terms
without the Purchaser having accepted for payment any Shares pursuant to the
Offer (including the Minimum Condition) or (ii) the Purchaser shall not have
accepted for payment any Shares pursuant to and subject to the conditions to the
Offer by July 31, 1999; provided, however, that the right to terminate the
Merger Agreement pursuant to clause (2)(a) will not be available to any party
whose failure to perform any of its obligations under the Merger Agreement
proximately contributed to the failure of any such condition or if the failure
of such condition results from facts or circumstances that constitute a breach
of any representation or warranty under the Merger Agreement by such party or
(b) if any Federal, state or local government or any court, tribunal,
administrative agency or commission or other regulatory authority or agency,
domestic, foreign or supranational (a 'Governmental Entity'), shall have issued
any order, decree or ruling or taken any action permanently enjoining,
restraining or otherwise
18
prohibiting the acceptance for payment of, or payment for, Shares pursuant to
the Offer or the Merger and such order, decree or ruling or other action has
become final and nonappealable, (3) by Parent or the Purchaser prior to the
Purchaser's obligation to accept Shares for payment pursuant to the Offer, in
the event of a material breach (as defined in the Merger Agreement) by the
Company of any representation, warranty, covenant or other agreement contained
in the Merger Agreement which would or reasonably would be expected to give rise
to the failure of a condition set forth in Section 14, (4) by Parent or the
Company if, prior to the obligation of the Purchaser to accept Shares for
payment pursuant to the Offer, the Company (i) amends the Schedule 14D-9 or
takes other action to modify its recommendation that the Offer and the Merger
are fair to and in the best interest of the Company and its stockholders and
its recommendation that the Company's stockholders accept the Offer, tender
their shares pursuant to the Offer and approve and adopt the Merger and the
Merger Agreement or (ii) enters into an acquisition agreement for an Alternative
Transaction (as defined below) that constitutes a Superior Proposal (as defined
below) and (5) by the Company if Parent or the Purchaser shall have (a) failed
to commence the Offer within five business days of the date of the Merger
Agreement, (b) failed to pay for Shares pursuant to the Offer in accordance
with the terms of the Merger Agreement or (c) breached in any material respect
any of their respective representations, warranties, covenants or other
agreements contained in the Merger Agreement, which breach or failure to
perform in respect of clause (c) is incapable of being cured or has not been
cured within 30 days after the giving of written notice to Parent or the
Purchaser, as applicable, except in any case under clause (c), such breaches
and failures which would not prevent the consummation of the Offer or the
Merger subject to the terms and conditions of the Merger Agreement.
Alternative Transactions. The Merger Agreement provides that the Company
and its subsidiaries shall not, and shall not authorize or permit any of its
officers, directors or employees or any investment banker, financial advisor,
attorney, accountant or other representative retained by it to, directly or
indirectly, (1) solicit, initiate or furnish any information in response to any
inquiries or the making of any proposal that may lead to an Alternative
Transaction or (2) participate in any discussions or negotiations regarding any
Alternative Transaction; provided, however, that if, at any time prior to the
acceptance for payment of Shares pursuant to and subject to the conditions
(including the Minimum Condition) of the Offer, the Board determines in good
faith, after consultation with its outside counsel, that action is required by
reason of the Board's fiduciary duties under applicable law, the Company may
(subject to compliance with the notification provisions discussed below), in
response to an unsolicited Third Party Proposal, (a) furnish information with
respect to the Company to any person making such Third Party Proposal pursuant
to a confidentiality agreement that is at least as protective of the Company's
interest as is the Confidentiality Agreement and (b) participate in negotiations
regarding such Alternative Transaction.
The Merger Agreement defines 'Third Party Proposal' as a bona fide proposal
from a third party, which proposal did not result from a breach of the
restrictions described above relating to a Third Party Proposal and which third
party the Board determines in good faith and upon the advice of AH&H or another
financial advisor of nationally recognized reputation to be reasonably capable
of completing a Superior Proposal. The Merger Agreement defines 'Alternative
Transaction' as any direct or indirect acquisition or purchase of assets of the
Company and its subsidiaries outside the ordinary course of business or
outstanding equity securities of the Company or any subsidiary, any tender offer
or exchange offer that if consummated would result in any person beneficially
owning equity securities of the Company or any merger, consolidation, business
combination, sale of substantially all the assets, recapitalization,
liquidation, dissolution or similar transaction that would result in the
acquisition of the Company or any subsidiary, other than the transactions
contemplated by the Merger Agreement and other than the acquisition of Shares
pursuant to the exercise of Company Stock Options or Warrants which are issued
and outstanding as of the date of the Merger Agreement.
The Merger Agreement provides further that unless the Board shall have
terminated the Merger Agreement as described below, neither the Board nor any
committee thereof will (1) withdraw or modify, or propose to withdraw or modify,
the approval or recommendation by such Board or such committee of the Offer, the
Merger Agreement or the Merger, (2) approve or recommend, or propose to approve
or recommend, any Alternative Transaction or (3) cause the Company to enter into
any letter of intent, agreement in principle, acquisition agreement or other
agreement (an 'Acquisition
19
Agreement') with respect to any Alternative Transaction, unless in connection
with the taking of any action described in clause (1), (2) or (3) the Board
shall have previously terminated the Merger Agreement in connection with a
Superior Proposal (as set forth above in clause (4) of the section entitled
'Termination of the Merger Agreement'). Notwithstanding the preceding sentence,
if the Company's Board determines in its good faith judgment, after taking into
consideration the advice of its outside legal counsel, that it is required by
reason of their fiduciary duties under applicable law, the Company's Board of
Directors may: (A) withdraw its recommendation of the Offer or the Merger and
the other transactions contemplated thereby, or (B) approve or recommend or
cause the Company to enter into an agreement with respect to a Superior
Proposal; provided, however, that the Company concurrently terminates this
Agreement and pays the Parent a termination fee, including Expenses (as defined
below), in the amount of one million dollars ($1,000,000).
The Merger Agreement defines a 'Superior Proposal' to be any Third Party
Proposal to acquire, directly or indirectly, all of the Shares or all or
substantially all of the assets of the Company; provided that (a) the Board
determines in its good faith judgment (after consulting with a financial advisor
of nationally recognized reputation) that such Third Party Proposal is on terms
that are more favorable to the Company's stockholders from a financial point of
view than the Offer and the Merger (taking into account all relevant factors,
including the amount and form of consideration to be received in respect of the
Shares, the relative value of any non-cash consideration and the timing and
certainty of closing), and (b) the Board determines in its good faith judgment
(after consultation with outside counsel) that the failure to recommend or
accept such Third Party Proposal would be required in order for its members to
comply with their fiduciary duties under applicable law.
In addition to the obligations of the Company set forth in the preceding
paragraphs, the Merger Agreement provides that the Company as promptly as
reasonably practicable shall advise Parent orally and in writing of any request
for information or of any proposal or any inquiry regarding any Alternative
Transaction and the material terms and conditions of such request, proposal or
inquiry. The Company is further required under the terms of the Merger
Agreement, to the extent reasonably practicable and not in violation of the
Board's fiduciary duties under applicable law, after consultation with its
outside counsel, to keep Parent fully informed of the status and details
(including amendments or proposed amendments) of any such request, proposal or
inquiry. The Merger Agreement provides that nothing contained therein shall
prohibit the Company from taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making
any disclosure to the Company's stockholders with respect to any Third Party
Proposal if (1) in the good faith judgment of the Board, after consultation with
its outside counsel, such disclosure is required by reason of the Board's
fiduciary duties under applicable law and (2) the Company shall have provided
Parent and the Purchaser with reasonable advance notice of its position and
proposed disclosure under the circumstances; provided, however, that neither the
Company nor its Board nor any committee thereof is permitted, except as
permitted by the Merger Agreement, to withdraw or modify, or propose to withdraw
or modify, its position with respect to the Offer, the Merger or the Merger
Agreement or approve or recommend, or propose to approve or recommend, an
Alternative Transaction.
Fees and Expenses. The Merger Agreement provides that in the event that the
Merger Agreement is terminated (1) by Parent or Purchaser pursuant to clause (3)
under the section above entitled 'Termination of the Merger Agreement,' (2) by
Parent pursuant to and in accordance with clause (2)(a)(i) under the section
above entitled 'Termination of the Merger Agreement' if such termination results
from the failure of the conditions described in clauses (c), (f) or (h) of
Section 14 entitled 'Certain Conditions of the Offer' as a result of any breach
by the Company of any covenant or agreement or any representation or warranty
made by the Company in the Merger Agreement or (3) pursuant to clause (4) under
the section above entitled 'Termination of the Merger Agreement,' the Company
shall promptly pay to Parent a termination fee, including all Expenses, in the
amount of one million dollars ($1,000,000). The Merger Agreement defines
'Expenses' as all out-of-pocket expenses incurred by the Purchaser and Parent in
connection with the Merger Agreement, the Stockholder Agreement and the
transactions contemplated thereby.
Conduct of Business by the Company. The Merger Agreement provides that
during the term of the Merger Agreement, the Company shall, and shall cause each
of its subsidiaries to, carry on its business
20
in the ordinary course and use its best efforts to preserve intact its current
business organization, keep available the services of its current officers and
employees as appropriate and preserve its relationships with customers,
suppliers, licensors, licensees and others having business dealings with it.
The Merger Agreement further provides that, except as otherwise expressly
contemplated by the Merger Agreement or approved by Parent in writing (which
approval shall not be unreasonably withheld or delayed), the Company shall not
and shall cause its subsidiaries not to (1) (a) declare, set aside or pay any
dividends on, or make any other distributions in respect of, any of its capital
stock, (b) split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock or (c) purchase, redeem or
otherwise acquire any shares of capital stock of the Company or any other
securities thereof or any rights, warrants or options to acquire any such
shares or other securities; (2) issue, deliver, sell, pledge or otherwise
encumber any shares of its capital stock, any other voting securities or any
securities convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities (other than the
issuance of Shares upon the exercise of Company Stock Options or warrants to
purchase Shares outstanding on the date of the Merger Agreement in accordance
with their present terms); (3) amend its articles of organization or by-laws;
(4) acquire or agree to acquire (A) by merging or consolidating with, or by
purchasing a substantial portion of the assets of, or by any other manner, any
business or any corporation, partnership, joint venture, association or other
business organization or division thereof or (B) any assets except for the
purchase of assets for an amount which does not exceed, individually or in the
aggregate, $100,000; (5) sell, lease, license, mortgage or otherwise encumber or
subject to any lien or otherwise dispose of any of its properties or assets,
except sales of inventory or sales of immaterial assets; (6) (A) except for
certain existing indebtedness and certain short-term borrowings incurred in the
ordinary course of business, incur any indebtedness for borrowed money or
guarantee any such indebtedness of another person, issue or sell any debt
securities or warrants or other rights to acquire any debt securities of the
Company, guarantee any debt securities of another person, enter into any 'keep
well' or other agreement to maintain any financial statement condition of
another person or enter into any arrangement having the economic effect of any
of the foregoing or (B) make any loans, advances or capital contributions to, or
investments in, any other person; (7) make or agree to make any capital
expenditure or expenditures with respect to property, plant or equipment which,
individually, is in excess of $75,000 or, in the aggregate, are in excess of
$250,000; (8) except as required by law or as consistent with past practice,
make any tax election or settle or compromise any income tax liability or take
any action or position inconsistent with the past tax or accounting practices of
the Company; (9) with certain exceptions, pay, discharge, settle or satisfy any
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction, in
the ordinary course of business consistent with past practice or in accordance
with their terms, of liabilities reflected or reserved against in, the most
recent consolidated financial statements (or the notes thereto) of the Company
included in any report of the Company filed with the Commission and publicly
available prior to the date of the Merger Agreement or incurred thereafter in
the ordinary course of business consistent with past practice, or waive the
benefits of, or agree to modify in any material respect, any confidentiality,
standstill or similar agreement to which the Company or any subsidiary is a
party, (10) except in the ordinary course of business, modify, amend or
terminate any material contract, agreement, arrangement or other instrument
(including any amendments thereto) to which the Company or any of its
subsidiaries is a party or waive, release or assign any rights or claims; (11)
enter into any contracts, agreements, arrangements or instruments (including any
amendments thereto) relating to the distribution, sale or marketing by third
parties of the Company's or its subsidiaries' products or services or enter into
any such arrangement with any supplier of the Company unless terminable upon no
more than thirty (30) days notice; (12) except as required to comply with
applicable law and subject to exceptions for the Employment Agreements, (A)
adopt, enter into, terminate or amend any benefit plan or other arrangement for
the benefit or welfare of any director, officer or current or former employee,
(B) increase in any manner the compensation or fringe benefits of, or pay any
bonus to, any director, officer or employee (except for normal increases or
bonuses, in the ordinary course of business consistent with past practice), (C)
pay any benefit not provided for under any benefit plan other than bonuses in
the ordinary course of business consistent with past practice, (D) except as
permitted in clause (B), grant any awards under any bonus, incentive,
performance or other compensation plan or arrangement or benefit plan (including
the grant of stock options, stock
21
appreciation rights, stock based or stock related awards, performance units or
restricted stock, or the removal of existing restrictions in any benefit plans
or agreement or awards made thereunder) or (E) take any action other than in the
ordinary course of business to fund or in any other way secure the payment of
compensation or benefits under any employee plan, agreement, contract or
arrangement or benefit plan; or (13) authorize any of, or commit or agree to
take any of, the foregoing actions.
Pursuant to the Merger Agreement, the Company shall not take any action or
omit to take any action, the taking or omission of which could reasonably be
expected to result in (1) any of its representations and warranties set forth in
the Merger Agreement becoming untrue or inaccurate in any material respect or
(2) any of the conditions to the Offer or to the Merger not being satisfied
(subject to exceptions specifically permitted by the Merger Agreement).
Stock Options. The Merger Agreement provides that as soon as practicable
following the date of the Merger Agreement but in no event later than the
consummation of the Offer, the Company (or, if appropriate, the Board or any
committee administering the Stock Option Plans) shall (including by adopting
resolutions or taking any other actions) take action so as to allow that each
outstanding option to purchase Shares (a 'Company Stock Option') granted under
any stock option, stock appreciation rights or stock purchase plan, or other
right, program, arrangement or agreement of the Company (collectively, the
'Stock Option Plans') and each outstanding warrant to purchase Shares (a
'Warrant') in each case outstanding immediately prior to the date of the Merger
Agreement: (A) to the extent then exercisable, either (1) to be cancelled
immediately after consummation of the Offer in exchange for an amount in cash,
payable at the time of such cancellation, equal to the product of (x) the number
of Shares subject to such Company Stock Option or Warrant immediately prior to
the Effective Time and (y) the excess, if any, of the price per Share to be paid
in the Offer over the per Share exercise price of such Company Stock Option or
Warrant (the 'Net Amount') or (2) to be converted immediately prior to the
Effective Time into the right solely to receive the Net Amount; provided,
however, that no such cash payment has been made or (B) to the extent not then
exercisable, to be canceled immediately after consummation of the Offer. The
Company shall not make, or agree to make, any payment of any kind to any holder
of a Company Stock Option or a Warrant (except for the payment described above)
without the consent of Parent.
The Merger Agreement provides further that subject to the provisions set
forth above, all Stock Option Plans and the Employee Stock Purchase Plan shall
terminate as of the Effective Time and the provisions in any other benefit plan
providing for the issuance, transfer or grant of any capital stock of the
Company or any interest in respect of any capital stock of the Company shall be
terminated as of the Effective Time. The Merger Agreement provides that the
Company shall ensure that following the Effective Time, no holder of a Company
Stock Option or Warrant nor any participant in any Stock Option Plan or the
Employee Stock Purchase Plan shall have any right thereunder to acquire any
capital stock of the Company, Parent or the Surviving Corporation, and that the
Company shall use its reasonable best efforts to ensure that following the
Effective Time, no holder of any remaining Company Stock Option or Warrant nor
any participant in any Stock Option Plan shall have any right thereunder to
acquire any capital stock of the Company, Parent or the Surviving Corporation.
The Merger Agreement also provides that the Surviving Corporation shall continue
to be obligated to pay the Net Amount to holders of any Company Stock Options or
Warrants converted in accordance with clause (y) of the immediately preceding
paragraph.
Indemnification and Exculpation. Parent has agreed in the Merger Agreement
that all rights to indemnification and exculpation (including the advancement of
expenses) from liabilities for acts or omissions occurring at or prior to the
Effective Time (including with respect to the transactions contemplated by the
Merger Agreement) existing now or at the Effective Time in favor of the current
or former directors or officers of the Company as provided in its articles of
organization, its by-laws and certain indemnification agreements shall be
assumed by the Surviving Corporation in the Merger, without further action, as
of the Effective Time and shall survive the Merger and shall continue in full
force and effect without amendment, modification or repeal in accordance with
their terms; provided however, that if any claims are asserted or made within
such period, all rights to indemnification (and to advancement of expenses)
hereunder in respect of any such claims shall continue, without diminution,
until disposition of any and all such claims.
22
Conditions to the Merger. The Merger Agreement provides that the Merger is
subject to the satisfaction or waiver of certain conditions, including the
following: (1) if required by applicable law, the Merger Agreement having been
approved and adopted by the affirmative vote of the Company's stockholders by
the requisite vote in accordance with applicable law and the Company's articles
of organization and (2) no statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other governmental entity or
other legal restraint or prohibition preventing the consummation of the Merger
being in effect; provided, however, that each of the Company, the Purchaser and
Parent has used reasonable efforts to prevent the entry of any such injunction
or other order and to appeal as promptly as possible any injunction or other
order that may be entered.
Reasonable Efforts. The Merger Agreement provides that, on the terms and
subject to the conditions of the Merger Agreement, each of the parties will use
all reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the Offer and the Merger and the other
transactions contemplated by the Merger Agreement.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties.
STOCKHOLDER AGREEMENT
The Stockholder Agreement provides that each Selling Stockholder will
tender in the Offer, and the Purchaser will purchase, all Shares beneficially
owned by such Selling Stockholder (the 'Subject Shares'), at a price per Share
equal to the Offer Price. Such obligations regarding the Subject Shares are
subject to the prior satisfaction or waiver of (1) the Purchaser having accepted
Shares for payment under the terms of the Offer, (2) the Minimum Condition
having been satisfied, (3) all regulatory approvals required by any applicable
law, rule or regulation having been obtained and being final, and (4) there
shall exist no preliminary or permanent injunction, or any other order by any
court of competent jurisdiction, restricting, preventing or prohibiting either
the purchase or the delivery of Subject Shares.
Each of the Selling Stockholders has agreed, until the Merger Agreement has
terminated, among other things, not to: (1) sell, transfer, give, pledge, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
with respect to the sale, transfer, pledge, assignment or other disposition of,
the Subject Shares owned by such Selling Stockholder other than pursuant to the
terms of the Offer or the Merger or (2) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, in connection with, directly or
indirectly, any takeover proposal.
Each of the Selling Stockholders has also agreed until the Stockholder
Agreement has terminated (and the Stockholder Agreement includes an irrevocable
proxy provision for the benefit of the Purchaser with respect to the Shares
subject to the Stockholder Agreement owned by each Selling Stockholder), (1) to
vote the Subject Shares at any meeting of stockholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, in favor of the Merger, the adoption by the Company of the
Merger Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement; and (2) to vote such Shares
at any meeting of stockholders of the Company or at any adjournment thereof or
in any other circumstances upon which a Selling Stockholder's vote, consent or
other approval is sought, against (x) any Alternative Transaction, (y) any
amendment of the Company's articles of organization or by-laws or other proposal
or transaction involving the Company, which amendment or other proposal or
transaction would be reasonably likely to impede, frustrate, prevent or nullify
the Merger, the Merger Agreement or any of the other transactions contemplated
by the Merger Agreement or change in any manner the voting rights of each class
of the Company's common stock or (z) any action that would cause the Company to
breach any representation, warranty or covenant contained in the Merger
Agreement.
23
EMPLOYMENT AGREEMENTS
The Purchaser has entered into employment agreements with certain employees
of the Company including Xxxx X. Xxxxxxx, the President of the Company and
Xxxxxxxxx X. Xxxxx, the Vice President of Product Development and Technology
(the 'Employment Agreements'), pursuant to which such persons will serve the
Company after consummation of the Offer. The Employment Agreements were executed
as of May 27, 1999 and are not effective until the date that the Purchaser
accepts for payment the Shares as specified in Section 4 of this Offer to
Purchase. The initial term of each of the Employment Agreements is 2 years.
Under the Employment Agreements, Xx. Xxxxxxx will receive a base salary of
$160,000 per year and Xx. Xxxxx will receive a base salary of $144,000 per year.
The Purchaser has agreed to provide each of Xx. Xxxxxxx and Xx. Xxxxx with a
yearly bonus pursuant to a bonus plan to be agreed upon by the Purchaser and
each of them within 90 days after the Employment Agreements become effective.
Under such bonus plans, Xx. Xxxxxxx will be entitled to earn up to an additional
$60,000 per year and Xx. Xxxxx will be entitled to earn up to an additional
$36,000 per year. In addition, the Purchaser has agreed to provide a yearly
vehicle allowance to Xx. Xxxxxxx equivalent in value to $10,000 and to Xx. Xxxxx
equivalent in value to $6,000.
Under the Employment Agreements, each of Xx. Xxxxxxx and Xx. Xxxxx and the
Purchaser have the right to terminate the agreement upon providing notice of
such party's intention not to renew the agreement at least 90 days prior to the
expiration of the agreement's initial term. The Purchaser may terminate the
Employment Agreements at any time for cause. The Purchaser and each of Xx.
Xxxxxxx and Xx. Xxxxx have the right to terminate their Employment Agreements
without cause upon at least 6 months' notice. In addition, each of Xx. Xxxxxxx
and Xx. Xxxxx has the right to terminate his or her employment for good reason,
(such as a reduction in salary, a relocation of more than 50 miles away from the
Employee's current place of employment, or any significant adverse change in the
nature of the Employee's duties or responsibilities), upon at least 30 days'
notice to the Purchaser.
If the Purchaser terminates the employment of Xx. Xxxxxxx or Xx. Xxxxx by
choosing not to renew their agreements after the initial term or by terminating
their employment without cause, Xx. Xxxxxxx and Xx. Xxxxx are entitled to
continue to receive their salary for 12 months after their employment is
terminated. If Xx. Xxxxxxx terminates his employment for good reason, he is
entitled to continue to receive his salary for 6 months after his employment is
terminated. If Xx. Xxxxx terminates her employment for good reason, she remains
entitled to continue to receive her salary for 12 months after her employment is
terminated.
CONFIDENTIALITY AGREEMENT
Xxxxxx Chemical Company, an affiliate of Purchaser and Parent, and the
Company have executed the Confidentiality Agreement, dated January 11, 1999,
pursuant to which Xxxxxx Chemical Company agreed to protect and treat as
confidential certain information provided to it by or on behalf of the Company.
Xxxxxx Chemical Company agreed to return to the Company all but 1 copy of any
confidential information provided to it and agreed that for a period of 2 years
after termination of the Confidentiality Agreement, it would not use or disclose
such confidential information as long as such information remains confidential.
Each of the Merger Agreement, the Stockholder Agreement and the Employment
Agreements contains other terms and conditions. The foregoing description of
certain terms and provisions of such agreements and documents is qualified in
its entirety by reference to the text of such agreements, which are filed as
exhibits to the Purchaser's Schedule 14D-1 and are incorporated herein by
reference.
13. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required to purchase all of the outstanding
Shares and to purchase and cancel all of the Company Stock Options and Warrants
pursuant to the Offer and the Merger and to pay related fees and expenses, is
expected to be approximately $15.5 million. Consummation of the Offer is not
conditioned on the obtaining of financing.
24
In order to fund the Offer, the Merger and the related fees and expenses,
the Purchaser will obtain approximately $15.5 million of equity financing from
Parent, which will obtain such funds pursuant to financing from the working
capital of Perstorp.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer, the Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including Rule 14e-1(c) under the Exchange Act
(relating to the Purchaser's obligation to pay for or return tendered Shares
after the termination or withdrawal of the Offer), to pay for any Shares
tendered pursuant to the Offer unless the Minimum Condition shall have been
satisfied. Furthermore, notwithstanding any other term of the Offer, the
Purchaser shall not be required to accept for payment or, subject as aforesaid,
to pay for any Shares not theretofore accepted for payment or paid for, and
except as otherwise provided in the Merger Agreement or under applicable law,
may terminate the Offer if, at any time on or after the date hereof and before
the acceptance of such Shares for payment or the payment therefor, any of the
following conditions exists and is continuing as of any Expiration Date (other
than as a result of any action or inaction of Parent or any of its subsidiaries
that constitutes a breach of the Merger Agreement):
(a) there shall be instituted or pending by any person or Governmental
Entity any suit, action or proceeding (i) challenging the acquisition by
Parent or the Purchaser of any Shares under the Offer or pursuant to the
Stockholder Agreement, seeking to restrain or prohibit the making or
consummation of the Offer or the Merger or the performance of any of the
other transactions contemplated by the Merger Agreement or the Stockholder
Agreement (including the voting provisions thereunder), or seeking to
obtain from the Company, Parent or the Purchaser any damages in connection
with the aforesaid transactions that are material in relation to the
Company, (ii) seeking to compel the Parent to dispose of or hold separate
any material portion of the business or assets of the Company or Parent and
its subsidiaries, taken as a whole, as a result of the Offer, (iii) seeking
to impose material limitations on the ability of Parent or the Purchaser to
acquire or hold, or exercise full rights of ownership of, any Shares to be
accepted for payment pursuant to the Offer or purchased under the
Stockholder Agreement, including, without limitation, the right to vote
such Shares on all matters properly presented to the stockholders of the
Company, or (iv) seeking to prohibit Parent or any of its subsidiaries from
effectively controlling in any material respect any material portion of the
assets, properties, business or operations of the Company and its
subsidiaries taken as a whole.
(b) there shall be any statute, rule, regulation, judgment, order,
injunction or other restraint enacted, entered, enforced, promulgated or
deemed applicable to the Offer or the Merger, or any other action shall be
taken by any Governmental Entity or court, that is reasonably likely to
result, directly or indirectly, in any of the consequences referred to in
clauses (i) through (iv) of paragraph (a) above; provided, however, that
each of Parent and the Purchaser shall have used reasonable efforts to
prevent the entry of any such injunction or other court order and to appeal
as promptly as possible any injunction or other court order that may be
entered;
(c) there shall have occurred and continue to exist as of any
Expiration Date any change or event that, individually or in the aggregate
with any other change or event, is materially adverse to the assets,
properties, business, financial condition, results of operations or
prospects of the Company and its subsidiaries, taken as a whole, or any
occurrence that with notice or lapse of time or both could reasonably be
expected to result in any such change or event;
(d) there shall have occurred and continue to exist as of any
Expiration Date (i) any general suspension of trading in, or limitation on
prices for, securities on the New York Stock Exchange or the NASDAQ, (ii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or any limitation by federal or state
authorities on the extension of credit by lending institutions, or a
disruption of or other event materially adversely affecting the extension
of credit by lending institutions, (iii) a commencement of a war or armed
hostilities or other national or international calamity directly or
indirectly involving the United States, which has and continues to
materially adversely affect the trading of securities on the NYSE involving
the United States or (iv) in the case of any of the foregoing existing at
the time of the commencement of the Offer, a material acceleration or
worsening thereof;
25
(e) the representations and warranties of the Company set forth in the
Merger Agreement shall not be true and correct at the date hereof and at
the scheduled or extended Expiration Date as though made on or as of such
date (except for representations and warranties made as of a specified
date) but only if the respects in which the representations and warranties
made by the Company are inaccurate would in the aggregate have a material
adverse effect and if such breaches of representations or warranties have
not been cured within five (5) business days of written notice to Company
by Parent or Purchaser; provided, however that in no event shall Parent be
obligated to extend the Offer for more than one five (5) business day
extension or beyond July 1, 1999 in order to permit Company to cure any
such breach. For purposes of this offer condition, 'material adverse
effect' shall mean that claims, demands, liabilities and losses arising
out of such inaccuracy will actually or may reasonably be expected to
result in Losses suffered or incurred by the Company, the Parent or the
Purchaser, when taken as a whole, in excess of $300,000.
(f) the Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by it under the
Merger Agreement and such failure has a material adverse effect;
(g) the Merger Agreement shall have been terminated in accordance with
its terms; or
(h) the Company's total stockholders equity as of May 31, 1999 shall
not be at least Five Million Five Hundred Thousand Dollars ($5,500,000) as
determined in accordance with Company's past practice consistently applied;
which in the reasonable judgment of Parent, in any such case, makes it
inadvisable to proceed with the Offer or acceptance for payment or payment
for the Shares.
The foregoing conditions in (a) through (h) above other than conditions
(b) and (g) are for the sole benefit of the Purchaser and Parent and, subject
to the terms of the Merger Agreement, may be waived by the Purchaser and
Parent in whole or in part at any time and from time to time in their sole
discretion. The failure by Parent or the Purchaser at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right,
the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts
and circumstances and each such right shall be deemed an ongoing right that
may be asserted at any time and from time to time, except as otherwise
provided in the Merger Agreement.
15. CERTAIN LEGAL MATTERS
STATE TAKEOVER LAWS
The Company conducts business in a number of states throughout the United
States, several of which have adopted laws and regulations purporting, to
various degrees, to apply to offers to acquire securities of entities which are
organized or have substantial assets, securityholders, employees, a principal
executive office and/or a principal place of business therein. In Xxxxx x. MITE
Corporation, the Supreme Court of the United States invalidated on
constitutional grounds the Illinois Business Takeover Act, which, as a matter of
state securities law, made takeovers of corporations meeting certain
requirements more difficult. In CTS Corp. v. Dynamics Corp. of America, however,
the Supreme Court held that a state may, as a matter of corporate law and, in
particular, those laws concerning corporate governance, constitutionally
disqualify a potential acquiror from voting on the affairs of a target
corporation without prior approval of the remaining stockholders, provided that
such laws were applicable only under certain conditions, in particular, that the
corporation has a substantial number of stockholders in the state and is
incorporated there.
MASSACHUSETTS ANTI-TAKEOVER LAW
Control Share Acquisitions. The Company's By-laws include a provision that
Chapter 110D of the Massachusetts General Laws will not apply to the Company.
This statute governs 'control share acquisitions' and provides, in general, that
if a stockholder acquires shares which would raise the voting power of the
acquiring stockholder to one-fifth or more of the total voting power of the
Company, then the shares acquired obtain voting rights only upon the
authorization from a majority of the stockholders other than the acquiring
stockholder. The stockholders of the Company may amend the Company's Articles of
Organization at any time to subject the Company to this statute prospectively by
a vote of a majority of the stock entitled to vote on such matter.
26
Restrictions on Business Combinations. The Company is subject to the
provisions of Chapter 110F of the Massachusetts General Laws, an anti-takeover
law. In general, Chapter 110F prohibits a Massachusetts corporation with more
than 200 stockholders from engaging in a business combination with a holder of
5% or more of the voting stock of a corporation (an 'interested stockholder')
for three years after the shareholder becomes an interested shareholder, unless
the acquiror receives prior Board of Directors' approval, acquires 90% or more
of the outstanding shares (excluding stock controlled by management and certain
employee stock ownership plans) or receives approval at an annual or special
meeting from two-thirds of the shareholders (other than the interested
shareholder). The stockholders, by vote of a majority of the stock entitled to
vote thereon, may amend the Company's Articles of Organization to provide that
the Company will not be governed by Chapter 110F. Such amendment will not be
effective for twelve months after its adoption and will not apply to any
stockholder who became an interested shareholder prior to the date of adoption
of such amendment.
Bid Regulation. The Company is subject to the provisions of Chapter 110C of
the Massachusetts Laws, an anti-takeover law known as the Massachusetts
Take-Over Bid Regulation Act. In general, Chapter 110C prohibits an entity from
acquiring more than 10% of any class of the issued and outstanding equity
securities of a corporation unless the Board of Directors of the target
corporation consents to the acquisition or such acquiring entity publicly
announces the terms of the proposed take-over bid and files with the Secretary
of State of Massachusetts, and with the target corporation, disclosure documents
pertaining to the transaction. Such public announcement and filings must be made
before the acquiring entity acquires, directly or indirectly, more than 5% of
the issued and outstanding equity securities of any class of the target
corporation, any of which were purchased within one year prior to the proposed
take-over bid. Courts, both at the state and federal level, have been reluctant
to enforce the Massachusetts Take-Over Bid Regulation Act. Such courts have
stated that the statute's one-year moratorium likely violates the Commerce
Clause of the United States Constitution. They also express concern that the
Massachusetts Take-Over Bid Regulation Act is preempted by the Xxxxxxxx Act. In
Hyde Park Partners XX x. Xxxxxxxx, 839 F.2d 837 (1st Cir. 1988), the Court held
that the Massachusetts Take-Over Bid Regulation Act altered the balance set by
Congress by favoring management and changing the point at which a takeover
bidder's control intent must be made public.
Due to the approval of the Merger Agreement by the Company's Board of
Directors, the restrictions described above in "Restrictions on Business
Combinations" and "Bid Regulation" are not applicable to the Offer and the
Merger.
It is a condition of the Offer that no statute, rule, regulation or order
impose any material limitation on the ability of Parent, the Purchaser or any of
their subsidiaries effectively to exercise full rights of ownership of the
Shares, including, without limitation, the right to vote the Shares. In the
event of the failure of such condition of the Offer, the Purchaser may terminate
or amend the Offer. See Section 14.
ANTITRUST
The Federal Trade Commission (the 'FTC') and the Antitrust Division of the
United States Department of Justice (the 'Antitrust Division') frequently
scrutinize the legality under the antitrust laws of transactions such as the
Purchaser's proposed acquisition of the Company. At any time before or after the
Purchaser's purchase of Shares pursuant to the Offer, the Antitrust Division or
the FTC could take such action under the antitrust laws as it deems necessary or
desirable in the public interest, including seeking to enjoin the purchase of
Shares pursuant to the Offer or the consummation of the Merger or seeking the
divestiture of Shares acquired by the Purchaser or the divestiture of
substantial assets of Parent or its subsidiaries, or the Company or its
subsidiaries. Private parties may also bring legal action under the antitrust
laws under certain circumstances. There can be no assurance that a challenge to
the Offer on antitrust grounds will not be made or, if such a challenge is made,
of the results thereof.
GOING-PRIVATE RULES
The Merger will have to comply with any applicable Federal law operative at
the time. Rule 13e-3 promulgated under the Exchange Act is applicable to certain
'going private' transactions. The Purchaser does not believe that Rule 13e-3
will be applicable to the Merger if the Merger is consummated within one year
after the Expiration Date at the same per Share price as paid in the
27
Offer. Rule 13e-3 would require, if applicable, among other things, that certain
financial information concerning the Company, and certain information relating
to the fairness of the proposed transaction and the consideration offered to
minority stockholders in such transaction, be filed with the Commission and
disclosed to minority stockholders prior to the consummation of the transaction.
16. FEES AND EXPENSES
The Dealer Manager, the Information Agent and the Depositary have been
retained by the Purchaser in connection with the Offer. The Information Agent
may contact holders of Shares by mail, telephone, telex, telegraph and personal
interview and may request brokers, dealers, banks, trust
companies and other nominees to forward the Offer material to beneficial owners.
The Dealer Manager, the Information Agent and the Depositary each will receive
reasonable and customary compensation for their services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities and expenses in connection therewith, including certain
liabilities under the Federal securities laws. Additionally, Vector is the
financial advisor to Parent and, as such, will receive a fee upon completion of
the acquisition of the Company. Neither the Information Agent nor the Depositary
has been retained to make solicitations or recommendations in connection with
the Offer.
No fees or commissions will be paid by or on behalf of the Purchaser to any
broker or dealer or other person (other than the Dealer Manager) for soliciting
tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks,
trust companies and other nominees will be reimbursed by the Purchaser for
reasonable expenses incurred by them in forwarding material to their customers.
17. MISCELLANEOUS
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither the Purchaser nor Parent is aware of any jurisdiction in
which the making of the Offer or the tender of the Shares in connection
therewith would not be in compliance with the laws of such jurisdiction. If the
Purchaser or Parent becomes aware of any valid state law prohibiting the making
of the Offer or the acceptance of the Shares pursuant thereto in such state, the
Purchaser will make a good faith effort to comply with any such state statute or
seek to have such statute declared inapplicable to the Offer. If after such good
faith effort, the Purchaser cannot comply with any state statute, the Offer will
not be made to, nor will tenders be accepted from or on behalf of, the holders
of Shares in such state. If the securities laws of any jurisdiction require that
the Offer be made by a licensed broker or dealer, the Offer shall be deemed to
be made on behalf of the Purchaser by the Dealer Manager or one or more
registered brokers or dealers that are licensed under the laws of such
jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR PARENT NOT CONTAINED IN THIS OFFER
TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, ANY SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
NEITHER THE DELIVERY OF THIS OFFER TO PURCHASE NOR ANY PURCHASE PURSUANT TO THE
OFFER, SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF PARENT, THE PURCHASER OR THE COMPANY SINCE THE
DATE AS OF WHICH INFORMATION IS FURNISHED OR THE DATE OF THIS OFFER TO PURCHASE.
The Purchaser has filed with the Commission a Tender Offer Statement on
Schedule 14D-1 ('Purchaser's Schedule 14D-1') and exhibits thereto pursuant to
Rule 14d-3 under the Exchange Act, furnishing certain additional information
with respect to the Offer. In addition, the Company has filed with the
Commission a Solicitation/Recommendation Statement on Schedule 14D-9 (including
exhibits) pursuant to Rule 14d-9 under the Exchange Act. Such statements and any
amendments thereto, including exhibits, may be examined at, and copies may be
obtained from, the offices of the Commission in the manner set forth in Section
9 of this Offer to Purchase (except that copies are not available at the
regional offices of the Commission).
28
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF EWOK ACQUISITION CORP.
The following sets forth the name, business address, present principal
occupation or employment and material occupations, positions, offices or
employment for the past five years and citizenship of each of the directors and
executive officers of the Purchaser. Unless otherwise specified herein, the
business address of each of the officers and directors of the Purchaser is 0000
Xxxxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000. Each person referred to herein is
a citizen of the United States.
OFFICES AND
NAME POSITIONS HELD
------------------------------------------------------ ----------------------------------
Xxxx Xxxxxxxx......................................... President and Director
Xxxxxxx Xxxxxxxxx..................................... Treasurer, Secretary and Director
XXXX XXXXXXXX is the President of the Purchaser. Xx. Xxxxxxxx serves as the
President of Xxxxxx Chemical Company, an affiliate of Purchaser, and has served
as an officer of certain affiliates of Perstorp since 1978. Xx. Xxxxxxxx is a
director of Purchaser and certain affiliates of Perstorp.
XXXXXXX XXXXXXXXX is the Treasurer and Secretary of the Purchaser. Xx.
Xxxxxxxxx has served as an officer of certain affiliates of Perstorp since 1988.
DIRECTORS AND EXECUTIVE OFFICERS OF PERBIO SCIENCE AB
The following sets forth the name, business address, present principal
occupation or employment and material occupations, positions, offices or
employment for the past five years and citizenship of each of the directors of
Parent. Parent does not have officers at this time and is being managed by its
Board of Directors. Unless otherwise specified herein, the business address of
each of the directors of Parent is SE-284 80, Perstorp, Sweden. Each person
referred to herein is a citizen of Sweden.
OFFICES AND
NAME POSITIONS HELD
------------------------------------------------------------------------------ --------------
Xxxxxxxx Xxxxxxxx............................................................. Director
Xxxx Xxxxxxxx................................................................. Director
Xxxxxx Xxxxxxxxx.............................................................. Director
XXXXXXXX XXXXXXXX is Vice President, Corporate Control of Perstorp Group.
From November 1997 to May 1999 he was Corporate Financial Controller of Perstorp
Group. From November 1996 to October 1997, Xx. Xxxxxxxx was Group Controller of
Salinity Group UK and from November 1993 through October 1996, he served as
Group Controller of PEAB, Sweden.
XXXX XXXXXXXX is Division Manager of Perstorp Life Science, a part of the
Perstorp Group. Since 1996, Mr. Xxxxxxxx has served in various capacities with
the Perstorp Group, including Division Manager of the Pernovo Division from
February 1997 to September 1998 and Division Manager of Perstorp Analytical from
January 1996 to February 1997. Prior thereto Mr. Xxxxxxxx served as a Division
Manager of Nobel Industrier of Akzo Nobel.
XXXXXX XXXXXXXXX is Chief Financial Officer of Perstorp AB. Prior to taking
on his current position, from September 1996 until May 1999 he served as Senior
Vice President, Corporate Control of Perstorp AB. From April 1993 through August
1996 he served as Chief Financial Officer of Stora Cell AB.
S-1
DIRECTORS AND EXECUTIVE OFFICERS OF PERSTORP AB
The following sets forth the name, business address, present principal
occupation or employment and material occupations, positions, offices or
employment for the past five years and citizenship of each of the directors and
executive officers of Perstorp AB, the ultimate parent of Purchaser and Parent.
Unless otherwise specified herein, the business address of each of the officers
and directors of Perstorp AB is SE-284 80, Perstorp, Sweden. Each person
referred to herein is a citizen of Sweden.
OFFICES AND
NAME POSITIONS HELD
--------------------------------------------------- ---------------------------------------------------
Xxxxx Xxxxxxx...................................... Chairman of the Board
Xxx Xxxxxxxxxxx.................................... President and Chief Executive Officer and Director
Xxxxxx Xxxxxxxxx................................... Chief Financial Officer
Xxxxxxx Xxx........................................ Director
Xxxxxx Xxxxx....................................... Director
Xxxxxxxx Xxxxxxx................................... Director
Xxxx Xxxxxxxx...................................... Director
Xxxx Xxxxxxx Xxxxx................................. Director
Xxxxxxx Xxxxx...................................... Director
XXXXX XXXXXXX is the Chairman of Scandic Hotels AB and the Deputy Chairman
of Investment AB Bure. Xx. Xxxxxxx has been the Chairman of Perstorp since April
1999. He is also a member of the Board of both SEB and SAS. From 1992 to June
1998, he was President and Chief Executive Officer of Forvaltnings AB Ratos.
XXX XXXXXXXXXXX has been the President and Chief Executive Officer of
Perstorp AB since 1997. Prior to this, Xx. Xxxxxxxxxxx served as the Executive
Vice President of Perstorp AB, and as a Division Manager of Perstorp Chemicals
from September 1996 to January 1997. From 1990 to August 1996, he was a Business
Area Manager of Perstorp Chemicals.
XXXXXX XXXXXXXXX is Chief Financial Officer of Perstorp AB. Prior to taking
on his current position, from September 1996 until May 1999 he served as Senior
Vice President, Corporate Control of Perstorp AB. From April 1993 through August
1996 he served as Chief Financial Officer of Stora Cell AB.
XXXXXXX XXX is the President and Chief Executive Officer of Trelleborg AB.
He was elected to the Board in April 1999. From June 1996 to January 1999, Xx.
Xxx was Managing Director and Chief Executive Officer of PLM. Prior to this,
from 1989 to May 1996, he was the Executive Vice President of Trelleborg AB.
XXXXXX XXXXX is the President and Chief Executive Officer of Tetra Pak
Group. He was elected to the Board of Perstorp AB in 1996. From 1992 to August
1994, Xx. Xxxxx was President and Chief Executive Officer of Alfa Laval.
XXXXXXXX XXXXXXX is the Chief Executive Officer of AB Custos. He was
elected to the Board of Perstorp AB in 1997. From 1995 to 1996, Xx. Xxxxxxx was
a Partner at Nordic Capital. Prior thereto, Xx. Xxxxxxx was a Partner at
McKinsey & Company.
XXXX XXXXXXXX has been the President of Molnlycke Health Care AB since
April 1998. He was elected to the Board in 1997. Before becoming President of
Molnlycke, Xx. Xxxxxxxx was the Managing Director of United Distillers in
London. From 1990 to 1994, he was President and Chief Executive Officer of
Euroc.
XXXX XXXXXXX XXXXX is the President of Gustafsborgs Sateri. He has been a
member of the Board of Perstorp AB since 1974.
XXXXXXX XXXXX is the President of Internal AB. Xx. Xxxxx was elected to the
Board of Perstorp in 1996.
S-2
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each stockholder of the
Company or his or her broker, dealer, commercial bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By Hand: Overnight Courier: By Mail:
Reorganization Department Reorganization Department Reorganization Department
00 Xxxx Xxxxxx, 46th Xxxxx 00 Xxxx Xxxxxx, 46th Floor 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 10005 New York, N.Y. 10005 New York, N.Y. 10005
Facsimile Transmission (for Eligible Institutions only):
(000) 000-0000
Confirm Receipt of Guaranteed Delivery by Telephone:
(000) 000-0000
Any questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Additional copies of the Offer to Purchase, the Letter of
Transmittal and the Notice of Guaranteed Delivery may be obtained from the
Information Agent. Stockholders may also contact their local broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
[Xxxxxxxxx & Company Inc. Logo]
Wall Street Plaza
New York, NY 10005
(000) 000-0000 (Collect)
or Call Toll Free (000) 000-0000
The Dealer Manager for the Offer is:
Vector Securities International, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
(000) 000-0000 (Collect)
