SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to (S)240.14a-11(c) or (S)240.14a-12
MEGAMATION INC.
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(Name of Registrant as Specified In Its Charter)
MEGAMATION INC.
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(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[_] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-6(i)(2) or
Item 22(a)(2) of Schedule 14A.
[_] $500 per each party to the controversy pursuant to Exchange Act Rule 14a-
6(i)(3).
[X] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
Common Stock, par value $.01 per share
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(2) Aggregate number of securities to which transaction applies:
9,204,832 shares
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
$.10 per share
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(4) Proposed maximum aggregate value of transaction:
$920,483.20
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(5) Total fee paid:
$184.10
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[X] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid: $184.10
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(2) Form, Schedule or Registration Statement No.: 0-18192
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(3) Filing Party: Megamation, Inc.
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(4) Date Filed: May 22, 1996
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THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
MEGAMATION INC.
The undersigned hereby appoints Tristram C. Colket, Jr., Max Cooper and
Edward F. Borkowski or any one of them acting singly, with full power of
substitution, the proxy or proxies of the undersigned to attend the Special
Meeting of Stockholders of Megamation Inc., to be held on June 18, 1996, and any
adjournments or postponements thereof, to vote all shares of stock that the
undersigned would be entitled to vote if personally present in the manner
indicated below and on the reverse side, and on any other matters properly
brought before the meeting or any adjournments or postponements hereof, all as
set forth in the Proxy Statement.
This proxy or proxies may be revoked by the undersigned at any time prior
to the meeting if written notice of revocation is given to the Secretary of the
Company prior to the vote being taken at the meeting, or by execution of a
subsequent proxy or proxies which are presented at the meeting, or if the
stockholder attends the meeting and votes by ballot, except as to any matter or
matters upon which a vote shall have been cast pursuant to the authority
conferred by such proxy or proxies prior to such revocation.
1. Approval of the Agreement and Plan of Merger by and among Megamation Inc.
and MI Merger Corp.
[_] FOR [_] AGAINST [_] ABSTAIN
The Board of Directors recommends that you vote FOR Proposal 1.
(Please date and sign on reverse side)
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(Continued from other side)
Unless otherwise indicated, the Proxy will be voted FOR Proposal 1 and in
the direction of the proxies on all matters properly brought before the meeting.
THE UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE NOTICE OF SPECIAL
MEETING AND PROXY STATEMENT OF MEGAMATION INC.
Date: , 1996
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Signature
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Signature
NOTE: Please sign exactly as name
appears hereon. Joint owners should
each sign. When signing as attorney,
executor, administrator, trustee or
guardian, please give full title as
such.
Please sign, date and return in the enclosed postage-prepaid envelope.
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MEGAMATION INC.
________
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held June 18, 1996
________
To our Stockholders:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of MEGAMATION
INC., a Delaware corporation (the "Company"), will be held at the offices of
Pepper, Hamilton & Scheetz, Two Logan Square, Eighteenth and Arch Streets,
Philadelphia, Pennsylvania 19103-2799, on June 18, 1996, at 10:00 a.m., local
time, for the following purposes:
1. To consider and act upon a proposal to approve and adopt an
Agreement and Plan of Merger dated as of March 19, 1996 and the First
Amendment to the Agreement and Plan of Merger dated as May 10, 1996
(together, the "Merger Agreement") providing for the merger (the
"Merger") of MI Merger Corp., a Delaware corporation ("Mergerco"),
with and into the Company, with the Company continuing as the
surviving corporation. All of the capital stock of Mergerco, which
was recently formed solely for the purpose of effecting the Merger,
is beneficially owned by Mr. Max Cooper, and certain of his
affiliates, and Mr. Tristram C. Colket, Jr. Messrs. Cooper and Colket
are currently the sole members of the Company's Board of Directors and
the largest beneficial owners of the Company. If the Merger is
approved, immediately prior to the effective time thereof, Messrs.
Cooper and Colket will contribute to Mergerco approximately 35.9% of
the outstanding shares of Common Stock of the Company. As a result of
the Merger, each outstanding share of Common Stock of the Company,
other than shares held by dissenting stockholders and shares held by
Mergerco, will be converted into the right to receive $.10 in cash,
and the Company will be wholly-owned by Messrs. Cooper and Colket.
2. To transact such other business as may properly be brought before
the Meeting or any adjournments or postponements thereof.
The Board of Directors has fixed the close of business on May 17, 1996
as the record date of the Meeting. Only stockholders of record on the stock
transfer books of the Company at the close of business on that date are entitled
to notice of, and to vote at, the Meeting.
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. IF THE
MERGER IS APPROVED, YOU WILL BE SENT INSTRUCTIONS REGARDING THE PROCEDURES TO
EXCHANGE YOUR EXISTING CERTIFICATES EVIDENCING COMMON STOCK OF THE COMPANY FOR
THE ABOVE-MENTIONED CONSIDERATION.
WHETHER OR NOT YOU EXPECT TO BE PRESENT AT THE MEETING, YOU ARE URGED
TO FILL IN, DATE, SIGN AND RETURN THE ENCLOSED PROXY IN THE ENVELOPE PROVIDED,
WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES. IF A STOCKHOLDER
DECIDES TO ATTEND THE SPECIAL MEETING, HE OR SHE MAY, IF SO DESIRED, REVOKE THE
PROXY AND VOTE THE SHARES IN PERSON.
By Order of the Board of Directors
Thomas D. Schmidt,
Secretary
Dated: May 23, 1996
MEGAMATION INC.
51 Everett Drive
Building #B4
Lawrenceville, New Jersey 08648
May 22, 1996
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders
(including any adjournment or postponement thereof, the "Special Meeting") of
Megamation Inc. (the "Company") to be held at the offices of Pepper, Hamilton &
Scheetz, 3000 Two Logan Square, Eighteenth and Arch Streets, Philadelphia, PA
19103-2799, on Tuesday, June 18, 1996 at 10:00 a.m., local time.
At the Special Meeting, you will be asked to consider and vote upon a
proposal to approve and adopt an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of March 19, 1996, by and between the Company and MI
Merger Corp., a Delaware corporation ("Mergerco"), pursuant to which Mergerco
will be merged (the "Merger") with and into the Company, with the Company
continuing as the surviving corporation.
All of the capital stock of Mergerco is beneficially owned by Mr. Max
Cooper and Mr. Tristram C. Colket, Jr., currently the sole members of the
Company's Board of Directors and largest beneficial owners of the Company
(together, the "Principal Stockholders"). Mergerco was recently formed by the
Principal Stockholders in order to enable them to acquire through the Merger all
of the outstanding Common Shares not already owned by them (the "Public
Shares"). Immediately prior to the effective time of the Merger, the Principal
Stockholders will contribute their equity in the Company, aggregating
approximately 35.9% of the outstanding Common Shares, to Mergerco and will fund
Mergerco with sufficient capital to purchase all of the Public Shares. In
addition, the Principal Stockholders will fund the surviving corporation with
sufficient capital to repay certain trade debt of the Company and provide
initial working capital for the surviving corporation's operations subsequent to
the Merger.
Pursuant to the terms of the Merger Agreement, all stockholders of the
Company, other than Mergerco and those stockholders who choose to exercise their
dissenters' rights, will be entitled to receive $.10 per share in cash in
exchange for each outstanding share of the Company's common stock, par value
$.01 per share (the "Common Shares"), held by them at the effective time of the
Merger. Each Common Share held by Mergerco will be canceled without
consideration and each share of common stock of Mergerco will be converted into
and exchangeable for one fully paid and non-assessable share of common stock of
the surviving corporation.
If the Merger is approved and consummated, all of the outstanding common
stock of the Company will be held by the Principal Stockholders and the holders
of the Public Shares will no longer have any equity interest in the Company or
rights as stockholders.
The Company's Board of Directors, in its capacity as such, has, among other
things, reviewed and considered the proposed Merger. In connection with its
review and consideration of the proposed Merger, the Board of Directors retained
TM Capital Corp. to act as its financial advisor. TM Capital has rendered its
opinion to the Board of Directors that the $.10 per Public Share to be received
by the holders of the Public Shares is fair, from a financial point of view.
Such opinion is attached to the accompanying Proxy Statement as an Exhibit and,
together with the analyses supporting it, is discussed in greater detail in the
Proxy Statement.
The Company's Board of Directors has unanimously approved the Merger as
being in the best interests of the Company and its stockholders (including those
who are not affiliated with the Principal Stockholders). Accordingly, the
Company's Board of Directors recommends that you vote FOR adoption of the Merger
Agreement.
Attached is a Notice of Special Meeting of Stockholders and a Proxy
Statement containing a discussion of the background of, reasons for and terms of
the Merger. We urge you to read this material carefully. Your vote is important.
Whether or not you plan to attend the Special Meeting, please complete, sign and
date the accompanying Proxy Card and return it in the enclosed prepaid envelope
as soon as possible. If you attend the Special Meeting, you may vote in person
if you wish, even if you have previously returned your Proxy Card. Your prompt
cooperation will be greatly appreciated.
Very truly yours,
Edward F. Borkowski,
President
MEGAMATION INC.
51 Everett Drive
Building #B4
Lawrenceville, New Jersey 08648
_______________________________
PROXY STATEMENT
FOR
SPECIAL MEETING OF STOCKHOLDERS
To Be Held June 18, 1996
_______________________________
INTRODUCTION
This Proxy Statement is being furnished to the holders of outstanding
shares of Common Stock, par value $.01 per share (the "Common Shares"), of
Megamation Inc., a Delaware corporation (the "Company"), in connection with the
solicitation of the accompanying Proxy by the Board of Directors on behalf of
the Company for use at the Special Meeting of Stockholders of the Company (the
"Meeting") to be held at the offices of Pepper, Hamilton & Scheetz, Two Logan
Square, Eighteenth and Arch Streets, Philadelphia, Pennsylvania 19103-2799 on
Tuesday, June 18, 1996 at 10:00 a.m., local time, or at any adjournments or
postponements thereof. The approximate date on which this Proxy Statement, the
foregoing Notice and the accompanying Proxy will first be sent or given to
stockholders is May 23, 1996.
At the Meeting, holders of the Common Shares on the applicable record
date will consider and vote upon a proposal to approve and adopt an Agreement
and Plan of Merger dated as of March 19, 1996 (the "Merger Agreement"), by and
between the Company and MI Merger Corp., a Delaware corporation ("Mergerco").
The Merger Agreement provides, subject to the approval of the stockholders of
the Company at the Meeting, that: (a) Mergerco will be merged with and into the
Company (the "Merger"), with the Company continuing as the surviving corporation
(the "Surviving Corporation") of the Merger; (b) each Common Share that is
outstanding at the Effective Time (as hereinafter defined) of the Merger,
excluding Common Shares held by Mergerco and Common Shares in respect of which
dissenters' rights have been perfected, will be converted into the right to
receive $.10 per share in cash, without interest, subject to applicable back-up
withholding taxes (the "Merger Consideration"); (c) all of the Common Shares
held by Mergerco will be canceled without consideration; and (d) each share of
common stock of Mergerco outstanding immediately prior to the effective time of
the Merger will be converted into one share of common stock of the Surviving
Corporation (collectively, the "Merger Proposal").
All of the capital stock of Mergerco is beneficially owned by Mr. Max
Cooper and Mr. Tristram C. Colket, Jr., currently the sole members of the
Company's Board of Directors and largest beneficial owners of the Company
(together, the "Principal Stockholders"). Mergerco was recently formed by the
Principal Stockholders solely in order to enable them to acquire through the
Merger all of the outstanding Common Shares not already owned by them (the
"Public Shares"). The Public Shares include approximately 3.5% of the
outstanding Common Shares which are owned by relatives of Mr. Cooper and for
which he holds voting proxies and powers of attorney (the "Cooper Affiliate
Shares"). The owners of the Cooper Affiliate Shares would receive the Merger
Consideration if the Merger Proposal is approved.
Immediately prior to the Effective Time, the Principal Stockholders
will contribute approximately 35.9% of the outstanding Common Shares to
Mergerco, as to which they have beneficial ownership (but which do not include
the Cooper Affiliate Shares), and will fund Mergerco with additional capital in
amounts sufficient to purchase all of the Public Shares. Subsequent to the
Effective Time, the Principal Stockholders will fund the Surviving Corporation
with additional capital in order to pay the expenses related to the Merger
Agreement and the transactions contemplated thereby, repay certain trade debt of
the Company and provide initial working capital for the Surviving Corporation's
operations.
(Cover continued to next page)
_____________________________________
The date of this Proxy Statement is May 23, 1996
(continuation of cover page)
Pursuant to the Delaware General Corporation Law ("DGCL"), the
affirmative vote of holders of at least a majority of all of the outstanding
Common Shares is required to approve and adopt the Merger Agreement. The
Principal Stockholders will vote the Common Shares that they subsequently intend
to contribute to Mergerco in favor of the Merger Proposal. In addition, the
Company has been informed that the Cooper Affiliate Shares and the approximately
8.0% of the outstanding Common Shares owned by Dr. Steven H. Pollack, a founder
and former officer and director of the Company, will be voted in favor of the
Merger Proposal. As a result, at least an aggregate of approximately 47.4% of
the outstanding Common Shares will be voted in favor of the Merger Proposal, and
the affirmative vote of less than an additional 3.0% of the outstanding Common
Shares, or approximately 373,325 of such shares, will be necessary to approve
the Merger Proposal. Mergerco, in its discretion, need not proceed with the
Merger if the holders of a majority of the Common Shares owned by unaffiliated
stockholders vote against the Merger Agreement.
The Board of Directors of the Company has fixed the close of business
on May 17, 1996 (the "Record Date") as the date for the determination of
stockholders entitled to notice of and to vote at the Meeting and any
adjournments or postponements thereof. At the close of business on the Record
Date, there were 14,358,666 Common Shares (held by 423 stockholders of record)
outstanding and entitled to vote at the Meeting. Each holder of record of
Common Shares on the Record Date is entitled to cast one vote per share in
person or by Proxy at the Meeting and any adjournments or postponements thereof.
Holders of Common Shares who do not vote in favor of, or who abstain
from voting on, the Merger Agreement and who comply with the provisions of
Section 262 of the DGCL will have the right to receive cash payments for the
"fair value" of their Common Shares. Any stockholder contemplating the exercise
of dissenters' rights should carefully review Section 262 of the DGCL,
particularly the procedural steps required to perfect dissenters' rights. A
stockholder who fails to comply with such procedural requirements will lose such
holder's dissenter's rights and will receive the Merger Consideration for the
Common Shares held by such stockholder. For a detailed description of
dissenter's rights, see "SPECIAL FACTORS -- Dissenters' Rights of Appraisal" and
Exhibit I, "Dissenters' Rights Under Section 262 of the DGCL." The Merger is
subject to the satisfaction or waiver by the Company and Mergerco of the
conditions that not more than 10% of the Common Shares entitled to vote thereon
shall exercise their dissenters' rights and that the holders of less than a
majority of the Common Shares owned by unaffiliated stockholders vote against
the Merger Agreement.
All Common Shares represented by properly executed Proxies received
prior to or at the Meeting and not revoked will be voted in accordance with the
instructions indicated in such Proxies. If no instructions are indicated, such
Proxies will be voted FOR the Merger Proposal and in the discretion of the
persons named in the Proxy with respect to such other matters as may properly be
presented at the Meeting. Abstentions and broker non-votes will have the effect
of a vote against the Merger Agreement. A stockholder may revoke his or her
Proxy at any time prior to its use by delivering to the Secretary of the Company
a signed notice of revocation or a later dated and signed Proxy or by attending
the Meeting and voting in person.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS PROXY STATEMENT. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
The Board of Directors knows of no additional matters that will be
presented for consideration at the Meeting. Execution of the accompanying
Proxy, however, confers on the designated proxyholders discretionary authority
to vote the Common Shares covered thereby in accordance with their best judgment
on such other business, if any, that may properly come before, and all matters
incident to the conduct of, the Meeting or any adjournments or postponements
thereof.
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TABLE OF CONTENTS
Page
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INTRODUCTION............................................................... 1
AVAILABLE INFORMATION...................................................... 5
SUMMARY.................................................................... 6
The Parties........................................................... 6
The Merger............................................................ 7
The Special Meeting................................................... 9
Special Factors....................................................... 10
SPECIAL FACTORS............................................................ 15
Background of the Merger.............................................. 15
Purpose of and Reasons for the Merger................................. 20
Determination of Fairness of the Merger by the Board of Directors..... 22
Opinion of TM Capital; Summary of Financial Analyses.................. 24
Financial Advisor to the Principal Stockholders....................... 27
Position of Principal Stockholders as to Fairness..................... 30
Conflict of Interests of Principal Stockholders in the Merger......... 30
Certain Effects of the Merger......................................... 31
Future Plans of the Company........................................... 31
Dissenters' Rights of Appraisal....................................... 32
Certain Federal Income Tax Consequences of the Merger................. 35
Estimated Fees and Expenses; Sources of Funds......................... 36
Accounting Treatment of the Merger.................................... 36
Regulatory Approvals.................................................. 36
THE MEETING; MECHANICS OF VOTING AND PROXIES............................... 37
Time, Date and Place.................................................. 37
Record Date; Voting Securities; Quorum................................ 37
Required Vote......................................................... 37
Voting of Proxies..................................................... 37
THE MERGER AGREEMENT....................................................... 39
General............................................................... 39
Effective Time of the Merger.......................................... 39
The Surviving Corporation............................................. 39
Consideration to be Paid to Public Stockholders; Conversion of
Common Shares........................................................ 39
Representations and Warranties........................................ 41
Covenants............................................................. 42
Additional Agreements................................................. 42
Indemnification....................................................... 43
Right to Solicit Alternative Proposals................................ 43
Termination........................................................... 44
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Page
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Fees and Expenses..................................................... 45
Amendments............................................................ 45
MARKET PRICE AND STOCKHOLDER INFORMATION................................... 46
SELECTED FINANCIAL DATA.................................................... 47
CERTAIN INFORMATION REGARDING THE BUSINESS OF
THE COMPANY; RECENT DEVELOPMENTS.......................................... 48
General Overview...................................................... 48
Recent Financial Condition............................................ 49
Recent Developments................................................... 49
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT.................................................... 52
PURCHASES OF COMMON SHARES BY AND OTHER
TRANSACTIONS WITH CERTAIN PERSONS........................................ 54
TRANSACTION OF OTHER BUSINESS.............................................. 56
EXPERTS.................................................................... 56
Change in and Disagreements with Accountants and Financial
Disclosure........................................................... 56
MISCELLANEOUS.............................................................. 56
EXHIBIT A-1- AGREEMENT AND PLAN OF MERGER
EXHIBIT A-2- FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EXHIBIT B-1- ANNUAL REPORT ON FORM 10-K FOR YEAR ENDED JUNE 30, 1995
EXHIBIT B-2- AMENDMENT NO. 1 TO THE ANNUAL REPORT ON FORM 10-K FOR YEAR
ENDED JUNE 30, 1995
EXHIBIT B-3- AMENDMENT NO. 2 TO THE ANNUAL REPORT ON FORM 10-K FOR YEAR
ENDED JUNE 30, 1995
EXHIBIT C -- QUARTERLY REPORT ON FORM 10-Q FOR QUARTER ENDED
SEPTEMBER 30, 1995
EXHIBIT D -- CURRENT REPORT ON FORM 8-K DATED NOVEMBER 6, 1995
EXHIBIT E-1- QUARTERLY REPORT ON FORM 10-Q FOR QUARTER ENDED
DECEMBER 31, 1995
EXHIBIT E-2- AMENDMENT NO. 1 TO THE QUARTERLY REPORT ON FORM 10-Q FOR
QUARTER REPORT ENDED DECEMBER 31, 1995
EXHIBIT F -- CURRENT REPORT ON FORM 8-K DATED FEBRUARY 2, 1996
EXHIBIT G -- QUARTERLY REPORT ON FORM 10-Q FOR QUARTER ENDED MARCH 31, 1996
EXHIBIT H -- OPINION OF FINANCIAL ADVISOR
EXHIBIT I -- DISSENTERS' RIGHTS UNDER SECTION 262 OF THE DGCL
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AVAILABLE INFORMATION
The Company and Mergerco have filed with the Securities and Exchange
Commission (the "SEC") a Rule 13e-3 Transaction Statement on Schedule 13E-3
(including any amendments thereto, the "Schedule 13E-3") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with respect to the
Merger. This Proxy Statement does not contain all the information set forth in
the Schedule 13E-3 and the Exhibits thereto, certain parts of which are omitted
in accordance with the rules and regulations of the SEC. The Company is subject
to the informational requirements of the Exchange Act and, in accordance
therewith, files reports, proxy statements and other information with the SEC.
The Schedule 13E-3 and the respective exhibits thereto (including the
opinion and the report of TM Capital Corp. and the report of Howard, Lawson &
Co., as discussed hereinafter), as well as such reports, proxy statements and
other information filed by the Company, can be inspected and copied at the
public reference facilities maintained by the SEC at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices at Suite
1300, Seven World Trade Center, New York, New York 10048, and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such materials also can be obtained at prescribed rates from the
public Reference Section of the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
Copies of the Schedule 13E-3 and the respective exhibits thereto
(including the reports and opinion of TM Capital Corp. and Howard, Lawson & Co.)
can be obtained directly from the Company at its offices located at 51 Everett
Drive, Building #B4, Lawrenceville, New Jersey 08648.
All information appearing in this Proxy Statement concerning the
Company has been supplied by the Company, and all information appearing in this
Proxy Statement concerning Mergerco and the Principal Stockholders has been
supplied by Mergerco and the Principal Stockholders, respectively.
NO PERSONS HAVE BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT IN CONNECTION
WITH THE SOLICITATION OF PROXIES MADE HEREBY, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY OTHER PERSON.
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SUMMARY
The following is a brief summary of certain information contained
elsewhere in this Proxy Statement. This summary is not intended to be a complete
description of the matters covered in this Proxy Statement and is subject to and
qualified in its entirety by reference to the more detailed information
contained elsewhere in this Proxy Statement, including the Exhibits attached
hereto and incorporated by reference herein. This Proxy Statement contains
certain statements of a forward-looking nature relating to future events and
future performance of the Company. Stockholders are cautioned that such
statements are only predictions and that actual events or results may differ
materially. In evaluating such statements, stockholders should specifically
consider the various factors identified in this Proxy Statement which could
cause actual results to differ materially from those indicated by such forward-
looking statements. Stockholders are urged to read carefully the entire Proxy
Statement, including the Exhibits attached hereto.
The Parties
The Company. The Company designs, develops, manufactures, markets and
services programmable, flexible, single and multiple tool, automation work cells
designed to help customers improve manufacturing and materials handling
processes by performing more work, in less space, more safely than by
traditional work methods. The Company's products can improve productivity,
increase product quality and decrease costs in the manufacturing workplace. The
Company was incorporated in Delaware in 1985. Its principal executive offices
are located at 51 Everett Drive, Building #B4, Lawrenceville, New Jersey 08648,
and its telephone number is (609) 799-7711. For a further discussion of the
Company, its business and its current financial condition, see "SPECIAL FACTORS
- --Background of the Merger," "CERTAIN INFORMATION REGARDING THE BUSINESS OF THE
COMPANY; RECENT DEVELOPMENTS" and Exhibits B-1, B-2, B-3, C, D, E-1, E-2, F and
G attached hereto and incorporated herein by reference, the Company's Annual
Report on Form 10-K for the year ended June 30, 1995, and Amendment Nos. 1 and 2
to its Annual Report on Form 10-K for the year ended June 30, 1995 (together
the "1995 Annual Report"), Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995 ("1996 First Quarterly Report"), Current Report on Form 8-K
dated November 6, 1995 ("November Current Report"), Quarterly Report on Form 10-
Q for the quarter ended December 31, 1995 and Amendment No. 1 to its Quarterly
Report on Form 10-Q for the quarter ended December 31, 1995 (together, the "1996
Second Quarterly Report"), Current Report on Form 8-K dated February 2, 1996
("February Current Report") and Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996 ("1996 Third Quarterly Report"), respectively.
Mergerco. Mergerco is a Delaware corporation recently organized by
the Principal Stockholders solely for the purpose of effecting the Merger.
Mergerco has no material assets, and will have no material assets other than
Common Shares representing approximately 35.9% of the outstanding equity of the
Company (which will be contributed by the Principal Stockholders), and
additional capital to be made available by the Principal Stockholders in amounts
sufficient to purchase the Public Shares of the Company. Mergerco has not
engaged in any activities except in connection with the Merger and will cease to
exist upon the consummation of the Merger. Mergerco's address is c/o Tekloc
Enterprises, 500 Chester Field Parkway, Suite 170, Malvern, Pennsylvania 19355.
Principal Stockholders. The Principal Stockholders are Mr. Max Cooper
and Mr. Tristram C. Colket, Jr., together the largest beneficial owners of the
Company. Mr. Cooper has beneficial ownership, directly or indirectly, including
voting control of the Cooper Affiliate Shares, of approximately 27.6% of the
outstanding Common Shares, and Mr. Colket has direct beneficial ownership of
approximately 11.8% of the outstanding Common Shares. See "SECURITY OWNERSHIP
OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT." In addition, Messrs. Cooper and
Colket are currently the sole members of the Board of Directors of the Company.
-6-
Mr. Colket has served as a Director of the Company and Chairman of the
Board since November 1992. Mr. Colket is a private investor and was the
Chairman of the Board of Cressona Aluminum Company between 1979 and 1995, and is
also a member of various other Boards of Directors including The Children's
Hospital of Philadelphia, the Aircraft Owners and Pilots Association and the QLF
Foundation.
Mr. Cooper has served as a director of the Company since November
1992. Mr. Cooper is the Chairman of the Board of CLP, Inc., a franchisee of
McDonald's Corporation, which currently controls 46 McDonald's restaurants. Mr.
Cooper started CLP, Inc. in 1966. He is also a member of the National Operators
Advisory Board, a franchisee organization which supervises the national co-op
advertising expenditures of McDonald's USA. Mr. Cooper is also a general
partner in Cooper Investments, whose primary investment is in the Company.
Mr. Cooper's business address is c/o CLP, Inc., 124 Summit Parkway,
Birmingham, Alabama 35209 and Mr. Colket's business address is c/o Tekloc
Enterprises, 500 Chester Field Parkway, Suite 170, Malvern, Pennsylvania 19355.
The Merger
General. Upon consummation of the Merger, Mergerco will be merged
with and into the Company and the Company will be the Surviving Corporation.
The Surviving Corporation will succeed to all the rights and obligations of the
Company and Mergerco. The Principal Stockholders, who will constitute all of
the directors and officers of Mergerco immediately prior to the Effective Time
(as hereinafter defined) of the Merger will, from and after the Effective Time,
be two of the three initial directors of the Surviving Corporation until their
successors have been duly elected or appointed and qualify in the manner
provided in the Certificate of Incorporation and By-Laws of the Surviving
Corporation. It is currently anticipated that Mr. Joel S. Lawson III, a
principal of Howard, Lawson & Co., the financial advisor to the Principal
Stockholders ("Howard Lawson"), will be appointed to the Board of Directors of
the Surviving Corporation and the current executive officers of the Company will
be the executive officers of the Surviving Corporation promptly after the
Effective Time. See "THE MERGER AGREEMENT -- General -- The Surviving
Corporation."
Effective Time of Merger. Pursuant to Section 1.1 of the Merger
Agreement, the Effective Time of the Merger (the "Effective Time") will occur,
after the satisfaction or waiver of all conditions to the Merger, upon the
filing of a Certificate of Merger with the Secretary of State of the State of
Delaware. See "THE MERGER AGREEMENT -- Effective Time of the Merger."
Certain Conditions to the Merger. Under Article 5 of the Merger
Agreement, the Merger is subject to the approval of the holders of at least a
majority of all of the outstanding Common Shares, and the satisfaction or waiver
of certain additional conditions, including the exercise by the holders of not
more than 10% of the Common Shares of their dissenters' rights and the vote
against the Merger by the holders of less than a majority of the Common Shares
owned by unaffiliated stockholders. However, the approval of the holders of a
majority of the Public Shares is not required to approve and adopt the Merger
Agreement. Persons with voting power for approximately 47.4% of the outstanding
Common Shares have advised the Company that they intend to vote such Common
Shares in favor of the Merger. See "--The Special Meeting" and "THE MERGER
AGREEMENT -- Conditions to Consummation of the Merger." Assuming the
satisfaction or waiver of all such conditions, the Merger is expected to be
consummated on or about June 18, 1996.
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Certain Effects of the Merger. Under Article 2 of the Merger
Agreement, upon consummation of the Merger, each Public Share, other than Public
Shares as to which dissenters' rights have been perfected under the DGCL, will
be converted into the right to receive the Merger Consideration of $.10 in cash,
subject to back-up withholding taxes, if applicable, payable to the holder
thereof, without interest thereon, upon surrender of the certificate
representing such Public Share. Each Common Share outstanding immediately prior
to the Effective Time which is then owned by Mergerco shall, by virtue of the
Merger and without any action on the part of the holder thereof, be canceled and
retired and cease to exist, without any conversion thereof. Each share of
Common Stock of Mergerco outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and exchangeable for one fully paid and non-
assessable share of Common Stock of the Surviving Corporation. See "THE MERGER
AGREEMENT--Consideration to be Paid to Public Stockholders; Conversion of
Common Shares."
Under Section 2.2 of the Merger Agreement, by following the procedures
prescribed by the DGCL, Public Stockholders have the right to dissent from the
Merger and to receive cash equal to the fair value of their Public Shares,
exclusive of any element of value arising from the accomplishment or expectation
of the Merger, as determined pursuant to appraisal proceedings in the Delaware
courts. A WRITTEN DEMAND FOR APPRAISAL OF PUBLIC SHARES MUST BE DELIVERED TO
THE PRESIDENT OF THE COMPANY WITHIN 20 DAYS AFTER THE DATE OF THE MAILING OF
THIS PROXY STATEMENT. The Delaware courts appraise dissenting shares by
considering, among other things, proof of value by any techniques or methods
which are generally acceptable in the financial community and otherwise
admissible in court taking into consideration market value, asset value,
dividends, earnings prospects, the nature of the enterprise and all other
relevant factors involving the value of a company. Because of the complexity of
the procedures for exercising the right to dissent, the Company believes that
Public Stockholders who consider exercising such right should seek the advice of
counsel. Failure to take any step in connection with the exercise of
dissenters' right of appraisal may result in the termination or waiver of such
rights. See "SPECIAL FACTORS--Dissenters' Rights of Appraisal and Exhibit I.
Under Section 2.4 of the Merger Agreement, holders of vested options
and warrants will agree to the cancellation of such options and warrants as a
result of the Merger without any consideration therefor, except the right to be
paid the difference between the Merger Consideration and the per share exercise
price of each such option or warrant, to the extent such difference is a
positive number. Because none of the exercise prices for such options or
warrants is less than the $.10 per share Merger Consideration, the practical
result of this provision is that no consideration will be delivered in exchange
for the cancellation of all outstanding options and warrants to purchase Common
Shares.
Following the Merger, the Principal Stockholders will own 100% of the
Surviving Corporation's outstanding shares of common stock. At such time, the
holders of the Public Shares, including the holders of the Cooper Affiliate
Shares (the "Public Stockholders"), will cease to have any ownership interest in
the Company or rights as stockholders. The Public Stockholders will no longer
benefit from any increases in the value of the Company or the payment of
dividends on the Common Shares and will no longer bear the risk of any decreases
in value of the Company. To date, the Company has never paid any dividends on
the Common Shares.
As a result of the Merger, the Surviving Corporation will be privately
held and there will be no public market for its common stock. Upon consummation
of the Merger, the Common Shares will cease to be traded over-the-counter with
quotations compiled by the OTC Bulletin Board. In addition, registration of the
Common Shares under the Exchange Act will be terminated.
As of the Effective Time, Howard, Lawson, the financial advisor to the
Principal Stockholders, will receive a warrant to purchase 8% of the Common
Stock of the Surviving Corporation then outstanding, on a fully-
-8-
diluted basis at the time of issuance, of which 5% will be vested immediately at
the Effective Time and an additional 1% will vest on each of the first three
anniversaries of the Effective Time, for an aggregate exercise price of
$240,000, provided that Mr. Lawson remains a member of the Board of Directors of
the Surviving Corporation on each such date. In addition, stock appreciation
rights of the Surviving Corporation are expected to be granted to Mr. Thomas D.
Schmidt, the Company's Vice President of Marketing and Sales.
Subsequent to the Merger, the Principal Stockholders intend to
contribute additional funds to the Surviving Corporation to allow the Surviving
Corporation to pay the expenses related to the transaction and certain trade
debt of the Company and to provide initial working capital of approximately $2.5
million for the Surviving Corporation.
Dr. Steven H. Pollack, who resigned as the Company's Chief Technical
Officer on March 16, 1996 (effective April 6, 1996), is currently in
negotiations with the Company to be retained as a consultant on a short-term
basis. However, the terms of such engagement are still under negotiation, and
no assurance can be made that Dr. Pollack will be so retained.
Payment of the Merger Consideration. Promptly after the Effective
Time, under Section 2.3 of the Merger Agreement, the Surviving Corporation will
deposit with American Stock Transfer and Trust Company, as paying agent (the
"Paying Agent"), monies sufficient to pay the aggregate Merger Consideration,
and the Paying Agent shall mail to each holder of record, as of the Effective
Time, of an outstanding certificate or certificates for Common Shares (other
than Mergerco), a letter of transmittal and instructions for use (the "Letter of
Transmittal") in effecting the surrender of such certificates for payment of
such Merger Consideration in accordance with the terms of the Merger Agreement.
In order to receive the Merger Consideration, Public Stockholders must send
their certificates representing Public Shares to the Paying Agent along with the
Letter of Transmittal. All certificates so surrendered will be canceled.
Under Section 2.3 of the Merger Agreement, upon surrender of a
certificate representing Public Shares together with a duly executed Letter of
Transmittal, a Public Stockholder will receive $.10 in cash in exchange for each
Public Share, without interest, subject to applicable back-up withholding taxes.
Any cash held by the Paying Agent that remains unclaimed by Public Stockholders
for six months after the Effective Time of the Merger will be returned to the
Surviving Corporation and any Public Stockholder who has not exchanged his
Public Shares for the Merger Consideration prior to that time shall look
thereafter only to the Surviving Corporation for payment of the Merger
Consideration in respect of his Public Shares. Any amounts remaining unclaimed
by Public Stockholders one year after the Effective Time will become the
property of the Surviving Corporation, to the extent permitted by applicable
abandoned property, escheat and other similar laws. Until surrendered pursuant
to the procedures described above, each certificate (other than certificates
representing Common Shares owned by Mergerco and certificates representing
Common Shares for which dissenters' rights have been perfected) shall represent
for all purposes solely the right to receive the Merger Consideration multiplied
by the number of Common Shares evidenced by such certificate. Stockholders
should NOT submit any stock certificates for Common Shares at the present time.
SEE "THE MERGER AGREEMENT--Consideration to be Paid to Public Stockholders;
Conversion of Common Shares."
The Special Meeting
Time, Date and Place. A Special Meeting of stockholders of the
Company will be held on Tuesday, June 18, 1996 at 10:00 a.m., local time, at the
offices of Pepper, Hamilton & Scheetz, 3000 Two Logan Square, Eighteenth and
Arch Streets, Philadelphia, Pennsylvania 19103-2799.
-9-
Purpose of the Meeting. The purpose of the Meeting is to consider and
vote upon the Merger Proposal, to approve and adopt the Merger Agreement, a copy
of which is attached to this Proxy Statement as Exhibits A-1 and A-2 and
incorporated by reference herein. See "SPECIAL FACTORS--Purpose of and
Reasons for the Merger." For a brief discussion of the terms of the Merger
Agreement, see "THE MERGER AGREEMENT."
Record Date; Quorum. The close of business on May 17, 1996 has been
fixed as the Record Date for determining holders of Common Shares entitled to
vote at the Meeting. Each Common Share outstanding on such date is entitled to
one vote at the Meeting. As of the Record Date, 14,358,666 Common Shares were
outstanding and held of record by 423 holders. The presence, in person or by
Proxy, of the holders of a majority of the Common Shares entitled to vote at the
Meeting is necessary to constitute a quorum for the transaction of business at
the Meeting. See "THE MEETING, MECHANICS OF VOTING AND PROXIES."
Required Vote. Pursuant to the DGCL, the affirmative vote of holders
of at least a majority of all of the outstanding Common Shares is required to
approve and adopt the Merger Agreement. The Principal Stockholders will vote
the Common Shares that they subsequently intend to contribute to Mergerco,
representing approximately 35.9% of the outstanding Common Shares, in favor of
the approval and adoption of the Merger Agreement. In addition, the Company has
been informed that the Cooper Affiliate Shares, representing an additional 3.5%
of the outstanding Common Shares, and the approximately 8.0% of the outstanding
Common Shares owned by Dr. Pollack, will be voted in favor of the Merger
Proposal. Therefore, the Company believes that at least approximately 47.4% of
the outstanding Common Shares will be voted in favor of the Merger Proposal, and
the affirmative vote of less than an additional 3.0% of the outstanding Common
Shares will be necessary to approve the Merger Proposal. The approval of the
holders of a majority of the Common Shares owned by unaffiliated stockholders is
not required to approve and adopt the Merger Agreement. However, if the holders
of a majority of the Common Shares owned by unaffiliated stockholders vote
against the Merger, then Mergerco may elect not to proceed with the Merger. See
"THE MEETING, MECHANICS OF VOTING AND PROXIES." For further information
concerning the terms and conditions of the Merger, see "THE MERGER AGREEMENT--
Conditions to Consummation of the Merger."
Proxies. A Proxy Card is enclosed for use at the Meeting. A Proxy
may be revoked at any time prior to its exercise at the Meeting if written
notice of revocation is given to the Secretary of the Company prior to the vote
being taken at the Meeting, or by execution of a subsequent Proxy which is
presented at the Meeting, or if the stockholder attends the Meeting and votes by
ballot, except as to any matter or matters upon which a vote shall have been
cast pursuant to the authority conferred by such Proxy prior to such revocation.
Common Shares represented by properly executed Proxies received at or prior to
the Meeting and which have not been revoked will be voted in accordance with the
instructions indicated therein. If no instructions are indicated on a properly
executed Proxy, such Proxy will be voted FOR the Merger Proposal to approve and
adopt the Merger Agreement. See "THE MEETING, MECHANICS OF VOTING AND PROXIES."
Special Factors
Background of the Merger. For a description of the events leading to
the approval and adoption of the Merger Agreement by the Company's Board of
Directors, see "SPECIAL FACTORS--Background of the Merger."
Purpose and Structure of the Merger. The Principal Stockholders'
purpose in seeking to effect the Merger is to acquire all of the remaining
equity interest in the Company not currently owned by them and to prevent the
effects of a bankruptcy court proceeding which could result in a discontinuation
of the Company's operations and/or the loss of all stockholder equity, including
that of the Principal Stockholders' existing investment in the
-10-
Company. The acquisition of Public Shares from the Public Stockholders is
structured as a cash merger in order to transfer ownership of that equity
interest to the Principal Stockholders in a single transaction. See "SPECIAL
FACTORS--Purpose of and Reasons for the Merger."
Reasons for the Merger. Throughout its history, the Company has
incurred significant net losses and corresponding negative cash flows from
operations. Due to the Company's past financial and operational performance and
current financial condition, management of the Company does not believe that the
Company will be able to continue to operate as a viable entity, absent
substantial additional financing. The Company's independent auditors for every
year since its initial public offering in 1989 (including with respect to its
most recent audit) have qualified their audit reports to the effect that there
was a substantial doubt as to the Company's ability to continue as a going
concern. The Company has met its capital requirements for the past 25 months
only as a result of periodic cash advances from the Principal Stockholders to
sustain its operations, in the form of term loans which, as of May 8, 1996,
aggregate $2,891,253.10 in principal and interest, and the Principal
Stockholders' willingness to personally guarantee the Company's bank line of
credit with New Jersey National Bank (the "Bank"), of which $1,700,000 is
currently outstanding. The Principal Stockholders are not willing at the
present time to guarantee any additional debt of the Company as a public
company. On the basis of such guarantees, the Bank has agreed to extend the
expiration of the Company's line of credit through June 30, 1996. See "SPECIAL
FACTORS--Background of the Merger" for a description of this indebtedness.
The Company is experiencing a critical shortage of working capital and
continuing negative cash flows, is in default under its borrowing agreements
with both the Bank and with the Principal Stockholders, and has a substantial
and increasing total shareholders' deficit. Absent guarantees of the Principal
Stockholders, the Company presently is unable to obtain additional debt
financing from third party lenders on any terms.
At least in part as a result of the Company's poor historical
financial and operational performance and condition, the Common Shares currently
are thinly and sporadically traded over-the-counter and do not represent a
liquid investment. In addition, they may not be pledged or hypothecated with
respect to certain credit arrangements because they do not constitute "margin
securities" under the rules of the Board of Governors of the Federal Reserve
System, and are considered "penny stock" with a value of less than $5 per share.
Moreover, due to the current trading range of the Common Shares of approximately
$.02 to $.05 per share (high and low sales prices) during the twelve week period
prior to the public announcement of the proposed Merger (as reported on the OTC
Bulletin Board), when such shares trade, and the resulting total market
capitalization of the Company, the Company believes it is unable to raise
sufficient, if any, additional capital through the sale of equity securities at
the present time to adequately improve its working capital shortage, without
substantially, if not completely, diluting the interests of its existing
stockholders.
The Company has undergone several changes in senior management during
the past 15 months, including the resignations of its Chief Executive Officer
and Chief Operating Officer as of February 1, 1996, its Controller and Secretary
as of March 8, 1996 and its Chief Technical Officer on March 16, 1996 (effective
April 6, 1996). In addition, the Company is experiencing certain operational
difficulties, including delays in the implementation of its largest contract on
which it was relying for the generation of significant cash flows and the
expansion of its business, and has experienced strained relations with a number
of its customers and vendors as a result of its limited working capital and the
changes in senior management.
Due to the foregoing factors, the Principal Stockholders have
concluded that they are no longer willing to continue, as stockholders of a
public corporation, to be the sole source of funding for the Company. They
believe that in order for them, as prudent businessmen, to make the decision to
invest additional capital in an amount believed necessary to revive the
Company's prospects, they should own its entire outstanding equity interest.
They
-11-
have determined that the best alternative for the Company to survive as a going
concern beyond the immediate future is to cause the Company to become a private
company that is substantially owned by them through a transaction such as the
one contemplated by the Merger Proposal and effect a substantial financial,
operational and managerial restructuring of the Company. Such a transaction
permits the Company to be taxed as an "S" corporation and will save the Company
the significant costs of remaining a public reporting company, including but not
limited to the expense of SEC counsel, accountants, and transfer agents, and the
cost of filing reports with the SEC and producing and printing and delivery of
annual reports and proxy statements to stockholders. The Company estimates that
these costs approximated $175,000 for each of the last two years, exclusive of
unquantifiable management time.
Recommendation of the Board of Directors; Fairness of the Merger. The
Board of Directors of the Company (the "Board of Directors") has concluded that
the terms of the Merger are fair to, and in the best interests of, the Public
Stockholders. Accordingly, the Board of Directors has unanimously approved and
adopted the Merger Agreement. The Board of Directors recommends a vote FOR
approval and adoption of the Merger Agreement. For a discussion of the factors
considered by the Board of Directors in making its recommendation, see "SPECIAL
FACTORS--Determination of Fairness of the Merger by the Board of Directors."
It must be noted, however, that the sole members of the Board of Directors at
the present time are the Principal Stockholders, who have formed Mergerco for
the purpose of acquiring all of the equity interest in the Company, and who
therefore have an economic interest in the consummation of the Merger. See
"SPECIAL FACTORS--Conflict of Interests of Principal Stockholders in the
Merger."
Opinion of Financial Advisor. On March 18, 1996, TM Capital Corp.
("TM Capital") delivered its oral opinion to the Board of Directors, which was
confirmed in writing on March 19, 1996, that, as of such date, the $.10 per
Public Share to be received by the Public Stockholders in the Merger is fair,
from a financial point of view, to the Public Stockholders. The full text of
the written opinion of TM Capital, which sets forth assumptions made, matters
considered and limitations on the review undertaken in connection with the
opinion, is attached hereto as Exhibit H and is incorporated herein by
reference. Holders of Public Shares are urged to, and should, read such opinion
in its entirety. See "SPECIAL FACTORS--Opinion of TM Capital; Summary of
Financial Analyses."
Conflict of Interests of Principal Stockholders in the Merger. In
considering the recommendation of the Board of Directors with respect to the
Merger, the Public Stockholders should be aware that the directors have certain
interests summarized below that present actual economic conflicts of interest in
connection with the Merger. For a more detailed discussion of such interests,
see "SPECIAL FACTORS--Conflict of Interests of Principal Stockholders in the
Merger." In making its determination with respect to the Merger Proposal in
accordance with its fiduciary duties to the stockholders, the Board of Directors
considered the actual conflicts of interest of its members, along with the other
matters described under "SPECIAL FACTORS--Determination of Fairness of the
Merger by the Board of Directors."
The Principal Stockholders are the only persons who currently serve on
the Company's Board of Directors. As the sole stockholders of Mergerco, they
have a direct economic interest in the Merger which creates a conflict of
interest with their roles as Board members in making the determination whether
the Merger is in the best interests of the Company and the Public Stockholders
so as to recommend its approval and adoption by the Public Stockholders. The
Principal Stockholders are also currently the Company's largest stockholders.
As of the date of this Proxy Statement, Mr. Cooper has beneficial ownership,
including voting control of the Cooper Affiliate Shares, of approximately 27.6%
of the outstanding Common Shares, and Mr. Colket has beneficial ownership of
approximately 11.8% of the outstanding Common Shares. On a fully-diluted basis,
assuming the exercise of warrants that have been issued to each of the Principal
Stockholders in connection with debt financings provided to the Company by the
Principal Stockholders (the exercise prices of which are greater than the
current trading price ($.04 on May 10, 1996) or the Merger Consideration of $.10
per Public Share), those percentages of beneficial ownership
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would have been approximately 30.4% and 17.3%, respectively. In addition, the
Company is indebted to each of Messrs. Cooper and Colket for loans aggregating
$1,017,167.92 and $1,874,085.18, respectively, including accrued interest
through May 8, 1996.
If the Merger is consummated, the Principal Stockholders will own the
entire outstanding equity interest of the Surviving Corporation. As a result of
the anticipated contributions to Mergerco and to the Surviving Company by the
Principal Stockholders, it is currently anticipated that the equity interest in
the Surviving Corporation ultimately will be evenly divided between the
Principal Stockholders. Additionally, the Principal Stockholders, together with
Mr. Lawson, will constitute the initial members of the Board of Directors of the
Surviving Corporation.
Future Plans for the Company. The Principal Stockholders have agreed
with each other to provide approximately $2,500,000 in funds to the Surviving
Corporation (not including payment of the Merger Consideration and expenses
related to the transaction) during the period from the Effective Time through
July 1, 1997 in order to pay certain trade debt of the Company and provide
initial capital. The Surviving Corporation's balance sheet will therefore be
improved from that of the Company's balance sheet immediately prior to the
Merger, although the Surviving Corporation will remain indebted to the Bank in
the aggregate amount of $1,700,000 and to the Principal Stockholders in the
aggregate amount of $2,891,253.10, including accrued interest through May 8,
1995. Moreover, such improvement in the Surviving Corporation's balance sheet
will occur only as a direct result of the going private transaction, in the
absence of which the Principal Stockholders do not currently intend, and are
under no obligation, to invest the additional capital.
Except as indicated in this Proxy Statement, the Principal
Stockholders do not have any present plans or proposals subsequent to the Merger
which relate to or would result in an extraordinary corporate transaction, such
as a merger, reorganization or liquidation, involving the Company, a sale or
transfer of a material amount of assets of the Company or any material change in
the Company's corporate structure. The Principal Stockholders do presently
contemplate that, if the Merger is consummated, the Surviving Corporation will
be converted from a "C" corporation to a corporation taxed under Subchapter "S"
of the Internal Revenue Code of 1986, as amended, for the tax year beginning
July 1, 1996 and consider the election of a Subchapter "S" corporate status to
be one of the significant benefits to them engaging in the contemplated
transactions because such election permits any losses or income that may be
incurred by the Surviving Corporation to be passed through to its stockholders
to be reported on such stockholders' personal income tax returns and to
eliminate a corporate level federal income tax to the extent of future profits,
if any. The election of Subchapter "S" corporation status is not practical
prior to the Merger because it is unavailable to the Company in its current
ownership structure as a result of, among other reasons, having more than 35
stockholders. The Principal Stockholders also expect that the Company will need
to undergo a significant financial, operational and managerial restructuring
subsequent to the Merger for it to have any possibility of attaining financial
stability and economic viability as a going concern, with realistic prospects
for long-term profitability and growth. See "SPECIAL FACTORS--Future Plans
for the Company."
Dissenters' Rights of Appraisal. Under Section 2.2 of the Merger
Agreement, by following the procedures prescribed by the DGCL, Public
Stockholders have the right to dissent from the Merger and to receive cash equal
to the fair value of their Public Shares, exclusive of any element of value
arising from the accomplishment or expectation of the Merger, as determined
pursuant to appraisal proceedings in the Delaware courts. A WRITTEN DEMAND FOR
APPRAISAL OF PUBLIC SHARES MUST BE DELIVERED TO THE PRESIDENT OF THE COMPANY
WITHIN 20 DAYS AFTER THE DATE OF THE MAILING OF THIS PROXY STATEMENT. The
Delaware courts appraise dissenting shares by considering, among other things,
proof of value by any techniques or methods which are generally acceptable in
the financial community and otherwise admissible in court taking into
consideration market value, asset value, dividends, earnings prospects, the
nature of the enterprise
-13-
and all other relevant factors involving the value of a company. Because of the
complexity of the procedures for exercising the right to dissent, the Company
believes that Public Stockholders who consider exercising such right should seek
the advice of counsel. Failure to take any step in connection with the exercise
of dissenters' right of appraisal may result in the termination or waiver of
such rights. See "SPECIAL FACTORS--Dissenters' Rights of Appraisal" and
Exhibit I.
Certain U.S. Federal Income Tax Consequences. The Company has
received an opinion of Pepper, Hamilton & Scheetz, which serves as counsel to
the Principal Stockholders, indicating its concurrence with the discussion set
forth below as to certain federal income tax consequences of the Merger to the
Public Stockholders. Specifically, the receipt of cash for Public Shares
pursuant to the Merger will be a taxable transaction for U.S. federal income tax
purposes under the Internal Revenue Code of 1986, as amended (the "Code"), and
may be a taxable transaction for foreign, state and local income tax purposes as
well. Public Stockholders should consult their own tax advisors regarding the
U.S. federal income tax consequences of the Merger, as well as any tax
consequences under the laws of any state or other jurisdiction. See "SPECIAL
FACTORS--Certain Federal Income Tax Consequences of the Merger."
Sources and Amounts of Funds. It is currently expected that
approximately $920,000 will be required to pay the Merger Consideration to the
Public Stockholders (assuming no such holder exercises dissenters' rights),
approximately $520,000 will be required to pay the expenses of the Company,
Mergerco and the Principal Stockholders in connection with the Merger Agreement
and the transactions contemplated thereby, approximately $600,000 will be
required to repay certain trade debt of the Company and approximately $1,960,000
will be required to provide initial capital for the Surviving Corporation's
operations subsequent to the Merger. Such funds will be furnished from
available personal funds of the Principal Stockholders. It is currently
anticipated that the Company's existing bank debt and debt outstanding to the
Principal Stockholders will remain in place immediately after the Effective
Time. See "SPECIAL FACTORS--Fees and Expenses; Sources of Funds."
Accounting Treatment. The Merger will be accounted for as a
"purchase" as such term is used under generally accepted accounting principles
for accounting and financial reporting purposes. See "SPECIAL FACTORS--
Accounting Treatment."
Regulatory Approvals. No federal or state regulatory approvals are
required to be obtained, nor are any regulatory requirements required to be
complied with, in connection with the Merger by any party to the Merger
Agreement, except for the requirements of the DGCL in connection with
stockholder approvals and consummation of the Merger and the SEC with respect to
the filing and dissemination of Proxy materials, including this Proxy Statement.
See "SPECIAL FACTORS--Regulatory Approvals."
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SPECIAL FACTORS
Background of the Merger
Overview and Current Condition of Company. The Company was organized
in 1985 and in 1989 consummated an initial public offering ("IPO") of Units at a
price of $5.00 per Unit. Each Unit consisted of five Common Shares and four
redeemable warrants to purchase Common Shares.
Throughout its history, the Company has experienced significant net
losses and corresponding negative cash flows from operations, which currently
continue. As of March 31, 1995, the Company had an accumulated deficit of
$9,525,949, the Company's current liabilities exceeded its current assets by
$4,228,683 and its total liabilities exceeded its total assets by $3,625,618, as
compared to $6,257,000, $743,000 and $356,000 for each such calculation,
respectively, as of December 31, 1994.
The Company continues to experience negative cash flows and a critical
shortage of working capital at the present time. In addition, the Company is in
default under certain of the terms of its bank line of credit, which is fully
extended at its current maximum borrowing availability of $1,700,000 and is
guaranteed by the Principal Stockholders, and the term loans owing to the
Principal Stockholders in the aggregate amount of $2,891,253.10, including
accrued interest thereon through May 8, 1996. The Bank and the Principal
Stockholders have agreed to extend the due dates on the Company's loans until
June 30, 1996, although such due dates remain subject to acceleration on demand
by the lenders at their sole discretion. Additionally, the extension of the
bank line of credit is also subject to the requirement of the extension of the
guarantees of the Principal Stockholders. In the absence of continued
forbearance by the Bank and Principal Stockholders, the Company would likely be
subject to bankruptcy proceedings.
The annual interest rate on both term loans is the prime rate plus 4%
with a maximum annual rate of 12%, payable quarterly in arrears. Substantially
all of the assets of the Company are pledged as collateral for the Company's
obligations under the term loans, however the terms loans have been subordinated
to the credit line (described below). The Principal Stockholder may terminate
the term loans and declare the entire outstanding amount due and payable,
together with accrued interest, and exercise such rights as are available under
a security agreement with respect to the collateral. Events of default include,
among other things, any breach of a representation or warranty in the term loan
agreements, default in the payment of principal or interest of the term loans,
insolvency or bankruptcy, failure to perform certain covenants under agreements
with the Principal Stockholders and failure to complete the development of the
Mega 2 project by January 31, 1994. The term loans impose various covenants on
the Company including the maintenance of its corporate existence, the
maintenance of insurance, the payment of taxes, a prohibition against the
incurrence of additional indebtedness (except the bank line of credit) or the
creation of any liens against Company assets and certain asset dispositions.
Provisions of the term loans also prohibit the Company from paying cash
dividends until these obligations are repaid.
The line of credit with the Bank provides for maximum borrowings of
$1,700,000 bearing an interest rate at the prime rate. The line is secured by
trade receivables and monies of the Company held in the Bank and is also
guaranteed by the Principal Stockholders. In the event of a default, the Bank
may declare the loans immediately due and payable, together with accrued
interest, exercise the right of set off including the right to take immediate
possession of or sell the collateral. Events of default under the bank line of
credit include nonpayment of principal or interest, failure to perform any
agreements or covenants the Company has with the Bank, insolvency or
dissolution, attachment, the occurrence of any materially adverse effects on the
Company, any disclaimer by the guarantors of liability or any defaults on other
debt of the Company. Additionally, the guarantee agreement with the Principal
Stockholders imposes borrowing formula limitations of the sum of 85% of trade
receivables and 40%
-15-
of the qualifying open order backlog. The Principal Stockholders each are
entitled to receive from the Company quarterly fees calculated at 1.5% annual
rate on the average outstanding balance of the line to which the Principal
Stockholders are the guarantors.
The Company's independent auditors have rendered qualified reports
every year since before its IPO in 1989 on the Company's audited financial
statements to the effect that, based on the above or similar factors, there is
substantial doubt about the Company's ability to continue as a going concern.
At least in part as a result of the Company's poor historical
financial and operational performance and condition, the Common Shares currently
are thinly traded over-the-counter and do not represent a liquid investment.
Moreover, they may not be pledged or hypothecated with respect to certain credit
arrangements because they do not constitute "margin securities" under the rules
of the Board of Governors of the Federal Reserve System, and are considered
"penny stock" with a value of less than $5 per share.
In December 1994 and January 1995, the Company's recently hired Chief
Executive Officer and Chief Operating Officer presented assessments to the Board
of Directors as to their view that the Company was in severe financial distress,
continued to face significant cash flow constraints and was in arrears on its
fiscal year 1994 financial statements and SEC filings and recommended that the
Company pursue a private placement financing with a strategic investor during
1995.
During 1995, the Company experienced delays in implementing its
automated system for its largest customer of 1995, SmithKline Beecham, a major
healthcare supplier, which resulted in delays in the receipt of revenues from
that installation. In addition, additional orders the Company had anticipated
from such customer have not materialized because the installation program for
such customer's remaining sites has been deferred and currently remains on hold.
There can be no assurance that all or any of the additional deliveries that the
Company had anticipated will ever be realized. Moreover, the Company
experienced delays in 1995 with respect to implementation of another significant
project for a different customer.
Also during calendar 1995, the Company, through its prior management,
implemented a strategy which focused primarily on building specialized
automation workstations for the healthcare industry and, specifically, the
completion of installations at one significant customer, a major health care
supplier. In February 1996, current management of the Company subsequently
determined to reverse this strategy because sales in the healthcare industry did
not materialize as expected and now is attempting to focus again on serving a
larger number of customers operating in multiple industries. The Company's
largest customers, accounting for 10% or more of the Company's gross revenues
for the period January 1, 1996 to May 5, 1996 were SmithKline Beecham at 22%,
Ford Motor Company at 13% and Progressive Tool & Industry at 10%. For fiscal
1995, customers which accounted for 10% or more of the Company's revenues were
SmithKline Beecham at 31% and Northern Telecom at 15%. For fiscal 1994,
customers which accounted for 10% or more of the Company's revenues were Micron
at 15%, TK Electronics at 15%, Northern Telecom at 12%, Alcoa at 11% and Hewlett
Packard at 11%. For further discussion of the Company's business and strategy,
see "CERTAIN INFORMATION REGARDING THE BUSINESS OF THE COMPANY; RECENT
DEVELOPMENTS."
The Principal Stockholders have, from time to time, considered the
possibility of committing sufficient capital in the Company to sustain its
operations for an indefinite period (beyond the scope of the frequent cash
advances that they have historically provided as needed to continue operations
on an interim basis). They have contemplated such substantial investment by
themselves or with possible partners, among other reasons, to prevent a
bankruptcy of the Company which could result in a discontinuation of operations
and/or the loss of their existing investment. Between January and October of
1995, the Company's then Chief Executive Officer contacted a few potential
investors that were considered to be promising, including a venture capital firm
and a large industrial
-16-
company, to inquire as to their possible interest in investing in the Company,
none of which proved to be interested in making an investment.
Between March and September of 1995, the Company considered
instituting, and began preparation of documentation for, a rights offering to
all existing stockholders to raise additional capital. However, as the
Company's financial condition and backlog continued to deteriorate during the
second half of calendar 1995, the Company recognized by November of 1995 that
such a public financing was not prudent at that time, given the Company's
financial condition and the fact that two significant projects, including the
one for its major health care customer, were substantially delayed, thereby
impacting the Company's results of operations. Moreover, the Company and the
Principal Stockholders determined that the amount of capital that could be
raised in this fashion would not adequately address the Company's operating and
financial difficulties. Instead, the Principal Stockholders began at this time
to focus their attention on other possible alternatives for the Company,
including bankruptcy protection or a going private transaction in which they
would acquire all of the Common Shares.
To assist in this evaluation, pursuant to an engagement letter (the
"HL Engagement Letter"), the Principal Stockholders retained Howard, Lawson to
advise them in analyzing the Company's financial and operational condition and
business prospects for the purpose of determining the feasibility of effecting a
turn-around of the Company. Howard, Lawson was also engaged to evaluate the
options available for financing the Company, including a possible acquisition of
the Public Shares by means of a tender offer financed by the Principal
Stockholders, and to render financial advisory services to the Principal
Stockholders in the event that the Principal Stockholders determined to seek to
acquire the Public Shares. Between November of 1995 and January of 1996, Howard,
Lawson reviewed certain public and non-public information with respect to the
Company, discussed with certain members of the Company's management, technical
employees and customers the business and financial condition and prospects of
the Company, analyzed the Company's ability to obtain financing and contacted
the most likely independent financing source, in their professional judgment,
due to such source's previous knowledge of the Company, and generally conducted
a financial analysis of the Company.
With respect to the non-public information regarding the Company,
Howard, Lawson received certain confidential information from the Company,
including certain intermittent summaries prepared by prior management setting
forth five year forecasts regarding operating results of the Company and
internally generated projected cash flow forecasts. The forecasts provided for
Total Revenues of $7,312,500, $15,371,875, $20,690,000, $36,693,750 and
$58,887,500 for the fiscal years ending June 30, 1996, 1997, 1998, 1999 and
2000, respectively. Gross Profit was projected to be $2,925,000, $6,609,906,
$9,310,500, $16,512,188 and $26,263,825 for the same periods, respectively.
Income from Operations was forecasted to be $825,000, $2,709,906, $4,810,500,
$8,012,188 and $14,763,825 for the same periods, respectively. Net Income was
projected to be $825,000, $2,709,906, $3,607,875, $4,807,313 and $8,858,295 for
the same periods, respectively. The Board, current management of the Company
and Howard, Lawson believe that certain assumptions used to prepare these
forecasts were highly optimistic and unattainable, and such assumptions are
substantially different from those used by current management in the forecasts
delivered to TM Capital.
On December 8, 1995, a meeting of the Board of Directors was held in
which the future viability of the Company was discussed in light of the
Company's inability to generate sufficient working capital from operations. The
Principal Stockholders informed the other two Board members that they had
retained Howard, Lawson to consider financing alternatives for the Company.
On February 1, 1996, due to differences in the direction and
implementation of the Company's strategies, the Company's Chief Executive
Officer and Chief Operating Officer resigned from their positions as executive
officers and members of the Board of Directors. As a result of such
resignations, the Principal Stockholders became the sole members of the Board of
Directors. Mr. Edward F. Borkowski was hired effective
-17-
February 12, 1996 to lead a transition team and assume the responsibilities of
President on an interim basis, becoming the Company's third chief executive
officer in 14 months.
During February and the first half of March 1996, various combinations
of the Principal Stockholders, their respective counsel, management of the
Company, Company counsel, Howard, Lawson and, after their engagement by the
Board of Directors on February 21, 1996, TM Capital, held several meetings and
telephonic conferences to discuss and negotiate the terms of a going private
transaction, and to prepare the documentation in connection therewith, including
this Proxy Statement and the Merger Agreement. In addition, the Company
consulted with its auditors on certain tax and accounting issues related to the
transaction during this period.
On March 15, 1996, Howard, Lawson presented its findings to the
Principal Stockholders with respect to the current status of the Company's
customer and employee relationships, financial condition and results of
operations and stock price activity and ownership. Howard, Lawson concluded
that the Company was in severe financial distress and would not be viable
without continued infusions of capital for a period of time that was estimated
to be at least 18 months. In addition, Howard, Lawson concluded that given the
historical performance of the Company, the delays with the two major customer
projects, and the current stock price and "pink sheet" status of the Common
Shares, other third party financing sources were not likely to be interested in
investing in the Company in time to meet the Company's immediate or long-term
capital needs.
Throughout this period, the Principal Stockholders, in conjunction
with Howard, Lawson, developed a set of implementation items which represent the
steps believed to be necessary, in addition to and assuming the infusion of
substantial capital, in order to effect a turnaround in the Company's business
within the 18-month time frame. These steps included the following: support
the Company's current customers; complete current projects in a manner so as to
promote customer satisfaction; contact certain past customers of the Company
with respect to whom recent contact had been limited; increase technical staff
to continue product enhancements and sales staff to address new potential
markets; recruit a permanent chief executive officer, possibly one with industry
specific experience; complete a cost engineering analysis of the Company's
products with the goal of significantly reducing the Company's costs in an
effort to increase gross margins; and develop an upgrade package to its existing
products for long-standing customers.
The Principal Stockholders believe that, if they invest an additional
$2,500,000 in capital and all of the above steps are effectively implemented,
and absent further material adverse changes to the Company's business, financial
condition and prospects, the Company could reach a breakeven cash flow position
in approximately 18 months. However, the Principal Stockholders recognize that
there is no assurance, even if all of the above steps are implemented, that the
Company will ever be profitable or that they will realize a return on or of
their investment (including the additional capital to be contributed).
The Principal Stockholders have determined that the strategy described
above requires them to continue to fund the Company and to infuse additional
capital into the Company and, as prudent businessmen, have concluded that they
are unwilling to pursue this strategy without the opportunity to obtain all of
the potential benefit, if any, of the equity in the Company.
On March 18, 1996, the Board of Directors met to consider the approval
of the Merger Agreement. At such meeting, TM Capital rendered its oral opinion
to the Board, which was confirmed with a written opinion dated March 19, 1996,
that the Merger Consideration was fair, from a financial point of view, to the
Public Stockholders. Following discussion, the Board of Directors unanimously
approved the Merger Agreement and determined to recommend adoption and approval
of the Merger Agreement by the stockholders of the Company. The Merger
Agreement was executed on March 19, 1996, and a press release announcing the
transaction and the preliminary filing of this Proxy Statement was issued after
the close of the stock markets on such date.
-18-
Potential Business Prospects. For all of the above reasons,
management of the Company and the Principal Stockholders presently do not
believe that the Company will be able to continue to operate as a viable
economic entity, absent substantial additional financing and a fundamental
operational and management restructuring. The Company will need to hire
additional management and technical personnel, recruit a permanent Chief
Executive Officer, improve relations with its current major customers and
vendors, reinitiate relationships with its other historical customers,
restructure its financial condition and obtain sufficient working capital in
order to execute its business plans and position itself to achieve financial and
operational stability. It should be noted, however, that recently the Company
has made certain operational changes in its business (new interim management was
hired on February 1, 1996 and the Company refocused its strategy by targeting a
larger spectrum of potential clients), although the Company continues to suffer
from the above-described working capital shortages and negative cash flows and
is unable to sustain its operations without continued capital infusions from the
Principal Stockholders or other sources. The Company is unaware of the
existence or availability of any other sources of capital.
Management of the Company does believe that, in the event the Company
is able to obtain sufficient working capital and financial resources, it has
several prospects which currently exist or could be developed and which may
potentially result in various business opportunities for the Company that could
counter its current negative cash flows. Among such potential opportunities,
during fiscal 1995, the Company negotiated a letter of intent with SmithKline
Beecham described above to supply, for approximately $4.5 million, 100 MEGA 2
single tool systems for automating operations in five regional clinical
laboratories. The letter of intent contemplated delivery and installation of
the 100 MEGA 2 systems over a 22 month period commencing in February, 1995.
During fiscal 1995 the potential value of this order increased to approximately
$9.5 million upon the customer's request that the Company provide engineering
services and specialized versions for the original 100 MEGA 2 systems. The
Company received a firm order late in the first quarter of fiscal 1995 for
delivery of 16 units for the first laboratory and subsequently sold the 16
systems and provided related engineering services to the customer which
generated revenues of approximately $1.25 million in fiscal 1995 and $244,000 to
date in fiscal 1996. In the event that the customer is satisfied with the
deliverables for the first laboratory, the customer could release an additional
order for its second laboratory by the first quarter of fiscal 1997. Although
no assurance can be given, additional orders may follow. Due to uncertainty
related principally to its cost structure, the Company is not able to predict
reliably at this time the effect such additional orders would have on the
Company's cash flows, gross profit and net income. Moreover, management
cautions that the customer is not obligated to make additional requests and that
the Company is only one of several vendors which is contributing to the project
and further orders are subject to the customer's satisfaction with the entire
project. In the event that the customer does not purchase the balance of the 84
units, the Company expects to receive an additional approximately $428,000,
which represents the recapture of revenue due to the loss of volume discounts
originally offered to such customer based upon the entire order of 100 units.
The Company has also been developing a product with Ford Motor Company
that supplies visual inspection systems for the automotive industry to customize
and integrate its workstations into a visual inspection product. In the event
that the Company is successful in engineering the product and if this customer
is satisfied with the product, it could request additional workstations to
integrate with its own product to sell to automotive plants. Such customer has
indicated that it may decide to resell this product to others in the automotive
industry. The Company is currently engineering the specifications of the
product.
In addition, the Company has developed a relationship with a potential
customer in the automobile industry which integrates layout and assembly of
various third-party provided conveyors and parts-feeders. The Company has
developed a high precision mechanical assembly product used in automotive
transmission assembly. A beta automation line has been developed which
integrates the Company's equipment with the equipment of other vendors.
However, other vendors participating in the project have not completed their
products to be integrated on the line. Consequently, no test of the entire line
has been performed.
-19-
Purpose of and Reasons for the Merger
The Principal Stockholders' purpose for the Merger is to acquire all
of the equity interest in the Company represented by the Public Shares and to
protect their existing investment in the Company for the reasons described
below. As a result of the Company's deteriorating financial and operational
condition and prospects, the Principal Stockholders are no longer willing to
continue to risk their personal capital and fund the Company to sustain its
operations if they cannot own all of its outstanding shares. The Principal
Stockholders have indicated that, absent any further material adverse change in
the Company's business, financial condition and prospects, they will finance the
Company's current cash needs through June 30, 1996. Subsequent to that time,
the Principal Stockholders will be willing to risk making available to the
Company the substantial additional capital that will be necessary to implement
effectively its business plans, which may make it possible for the Company to
achieve economic viability over time, only if the Company is privately owned
substantially by them. Therefore, the purpose of the Merger transaction is to
take the Company private while providing a fair price per Common Share to all
stockholders, other than the Principal Stockholders, for their Common Shares in
the Company.
The Principal Stockholders have advised the Company that, in
connection with the Merger Proposal, they did not consider any alternative that
would have allowed the Public Stockholders to maintain an equity interest in the
Company. As previously discussed, the possibility of a rights offering to
existing stockholders and potential investments by several third parties were
discussed at various times between the spring and fall of 1995, but none of
these alternatives materialized or proved feasible. An alternative structure
for the going private transaction of a cash tender offer for all of the Public
Shares was considered but ultimately rejected due to the possibility that such
tender offer would likely need to be followed by a long-form merger which would
require the preparation, filing with and clearance by the SEC and mailing to all
stockholders of an information statement similar to this Proxy Statement. This
two-step transaction would take significantly longer and would likely result in
greater expense than the proposed one-step structure and, accordingly, would
further expose the Principal Stockholders' investment in the Company to
unwarranted risks without providing any commensurate financial benefit to the
Public Stockholders.
The Board of Directors believes that there is little or no continued
benefit either to the Company, or to the Public Stockholders, in the Company's
continuing to be a public company for the following reasons:
. If the Merger Proposal is not adopted, in all likelihood the
Company will be unable to continue business operations without
substantial capital infusions, either from the Principal
Stockholders, who presently do not intend to make such
contributions under such circumstances, or another source that
has not been located to date. In the absence of such substantial
financings, the Company would be forced into bankruptcy
liquidation. In such a case, there is no possibility of any
return for any of the stockholders of the Company. There is not
currently any alternative transaction to the Merger Proposal
available that the Board of Directors is aware of to solve the
Company's current financial and operational crises and prevent a
bankruptcy. The Principal Stockholders are only willing to fund
the Company's operations as a public company through June 30,
1996, absent further material adverse changes to the Company.
. The spread between the price offered and the price asked for
Common Shares is disproportionate to the spread on shares with
greater trading volume and higher sales prices. Additionally,
because the trading volume is thin and stock trades are so
infrequent, "market makers" demand commissions that are
disproportionately large in comparison to their investment or the
net sale proceeds. Because the per share equity of the Common
Shares as of December 31, 1995 was a negative $.21, the proposed
Merger would result in holders of Public Shares receiving a price
per share which is $.31 in
-20-
excess of such amount. In addition, as is detailed hereafter, the
Merger Consideration represents a 186% premium over the closing
sale price on March 18, 1996, the last date in which the Common
Shares traded prior to the public announcement of the Merger.
See "Market Price and Shareholder Information."
. In the Company's current financial condition, absent the personal
guarantee of the Principal Stockholders, the Company is unable to
obtain additional debt financing from third party lenders on any
terms. The Company is in critical need of both substantial
operating capital and the establishment of new or additional
banking relationships which would allow it to refinance its
existing debt and to expand its credit limits. The Company is
unable to establish these banking relationships predicated on its
own credit worthiness. The Principal Stockholders believe that
if the Company is privately held, has an improved balance sheet
due to interim debt and capital infusions from the Principal
Stockholders and continued subordination of the Company's loan
made by them, it will be more likely in the future to be able to
obtain debt financing from third party sources on more
commercially reasonable terms. Thus far, the Principal
Stockholders have agreed to provide personal funds as working
capital without the Public Stockholders doing the same, and have
provided the Company's lender with such personal guarantees.
Presently, without such guarantees the Company would be unable to
borrow and, thus, could not conduct its financial affairs. In a
private company, financing arrangements can be structured where
all stockholders allocate amongst themselves the risk of loans
and guarantees in a more equitable manner. Such mutual
stockholder arrangements are unavailable to a public company such
as the Company.
. Under the market conditions which presently prevail for the
Common Shares, it is unlikely that the Company could take
advantage of the capital markets to secure funds through another
public offering of equity securities. Thus, one of the primary
benefits of being a public company, access to the equity capital
markets, does not exist for the Company. On the other hand, the
Company pays the cost of being a public company. Annually, the
Company pays auditors, SEC counsel, printers, brokerage
companies, its transfer agent and the postage in connection with
the costs of preparing and filing reports and proxy statements
with the SEC, producing, printing and delivering an annual report
and proxy statement to the stockholders and effecting transfers
of stock. The proposed Merger would eliminate the costs
(including the valuable time of certain employees of the Company)
which are exclusively related to being a public company and are
disproportionately large for a company with revenues the size of
the Company's.
. Similarly, the Company believes that, given its current total
market capitalization, the amount of funds that the Company may
be able to raise through a private placement would substantially,
if not completely, dilute the equity ownership of the existing
stockholders.
The effect of the transaction, if approved by the Public Stockholders,
will be that all Public Stockholders will be entitled to receive $.10 per share,
in cash, subject to applicable back-up withholding taxes, for each share of
Common Stock of the Company. The Principal Stockholders would then own 100% of
the outstanding shares of common stock of the Surviving Corporation. The
possible detriment to the Company, the Public Stockholders and the Principal
Stockholders if the proposed transaction is not consummated is a liquidation in
bankruptcy, in which the equity interests in the Company are extinguished
without any payment. The possible detriment to the Company if the transaction
is consummated is a lack of access to the public capital markets, which
-21-
could be a benefit to the Company in the future if it were to become financially
and operationally viable. The possible detriment to the Principal Stockholders
if the transaction is consummated is that there can be no assurance that the
Company will ever earn a profit, such that the Principal Stockholders would risk
the complete loss of their investment, including the additional $4,000,000 they
have agreed to fund for the transaction and the Surviving Corporation.
Determination of Fairness of the Merger by the Board of Directors
For the reasons discussed above, the Board of Directors believes that
the Merger, including the Merger Consideration, is fair to the Public
Stockholders of the Company. The Board of Directors considered the following in
making its determination with respect to the fairness of the Merger and the
Merger Consideration:
. The opinion of TM Capital, as financial advisor to the Board of
Directors, that the Merger Consideration is fair, from a
financial point of view, to the Public Stockholders, and the
analyses underlying such opinion.
. The fact that the Merger Consideration represents a 186% premium
over the last sales price on March 18, 1996, the last date prior
to the public announcement of the Merger Agreement in which the
Common Shares traded, and a 186% premium over the average of the
closing prices during the 120 days prior to such date.
. The fact that the Common Shares are not traded on a national
exchange or the Nasdaq Stock Market and, partially as a result,
the trading volume for Common Shares is thin, and trading is
extremely sporadic, in the over-the-counter market referred to as
the "pink sheets." Bid and ask spreads and commissions on sales
typically constitute a disproportionate portion of the net
proceeds of such sales and often no sales take place for a period
of several days. During the period between February 12, 1996 and
March 18, 1996, trading took place on 7 of 25 possible trading
days with total reported trading volume of 118,000 Common Shares
(or an average of 4,720 Common Shares per trading day) with high
and low sales prices for the period of $.05 and $.02,
respectively. During the six month period between September 18,
1995 and March 18, 1996, trading took place on 59 of 122 possible
trading days with total reported trading volume of 1,697,315
Common Shares (or an average of 13,912 Common Shares per trading
day). Moreover, the Common Shares may not be pledged or
hypothecated in certain credit arrangements because they may not
serve as "margin securities" under the rules of the Board of
Governors of the Federal Reserve System.
. The fact that the Company's financial condition, results of
operations and business prospects have deteriorated to such an
extent that management of the Company does not believe the
Company will be able to continue to operate without a substantial
infusion of working capital, which the Principal Stockholders are
willing to provide only if the Company is a private company. The
report of each of the Company's current and former auditors on
the Company's annual audited financial statements for every year
since before the IPO in 1989 has contained a going concern
qualification, which has affected the Company's ability to secure
additional debt financing for its operations at any cost (absent
the personal guarantees of the Principal Stockholders). The
Company is currently in default on its bank line of credit and
term loans to the Principal Stockholders.
. The availability of dissenters' rights under the DGCL.
-22-
. Even if the Company were to survive its present critical working
capital shortage, as previously detailed it currently is
continuing to suffer from negative cash flows from operations and
experiencing serious operational, customer and vendor relations,
management and employee morale problems which will take
substantial time and effort to correct, if they can be corrected
at all, and there can be no assurance that the Company will ever
become profitable.
. If the Company were to receive the working capital it requires
and improve upon its current operational, customer and vendor
relations, management and employee situations, substantial risks
to its business and future prospects will still remain. These
risks include intense competition with a number of established
companies with greater financial and other resources than the
Company, substantial reliance on a small concentration of
customers, rapid rates of technological change in the industry,
uncertainty of further market acceptance for the Company's
existing products and future system upgrades, and reliance on
outside sources for critical manufacturing components.
. The risks that the Company and its stockholders would not be able
to realize potentially greater values from any other alternative
transaction or restructuring.
. The fact that, as a result of the Merger, the Public Stockholders
will cease to have any ownership interest in the Company or right
as stockholders, and will not have the opportunity to benefit
from any increases in the value of the Company or the payment of
dividends, if the Company's financial condition, results of
operations and business prospects should improve, although the
Company has not paid any dividends since it was formed in 1985
and such stockholders will no longer bear the risk of any further
decreases in value of the Company, including a potential loss of
their entire investment.
The Board of Directors relied upon certain of TM Capital's analyses,
including the discounted cash flow analysis related to a range of values for the
Company as a going concern, to determine whether the Merger Consideration
offered to the Public Shareholders constitutes fair value. However, the Board
did not specifically conduct a liquidation value appraisal of the Company. It
was aware, however, of the advice of Howard, Lawson to the Principal
Stockholders that absent an additional capital infusion, the Company would be
forced into a liquidation in bankruptcy and that given the value of the
Company's liabilities compared to its assets, such an event would likely result
in the stockholders receiving no return of their invested capital.
In addition to the above factors, the Board believes that prior to the
execution of the Merger Agreement there has been, and during the substantial
period of time that will elapse between the announcement of the execution of the
Merger Agreement and the consummation of the Merger following the Meeting to be
held to vote upon the Merger there will be, sufficient time and opportunity for
other persons to propose alternative transactions to the Merger. For that
reason, the terms of the Merger Agreement authorize the Company to furnish
information to and negotiate with third parties in response to unsolicited
requests by such parties concerning any merger, sale of assets, sale of shares
of capital stock or similar transaction involving the Company if the Board deems
such action is appropriate in light of its fiduciary obligations to the
Company's stockholders after consultation with legal counsel. Because the Board
has a conflict of interest in reviewing competing offers, it may conclude in the
exercise of its fiduciary obligations to retain independent advisors to review
and advise on such offers.
In view of the wide variety of these factors considered by the Board
of Directors in connection with its evaluation of the Merger and the Merger
Consideration, the Board of Directors did not find it practicable to quantify or
otherwise attempt to assign relative weights to the specific factors considered
in making its determination,
-23-
nor did it evaluate whether such factors were of equal weight. However, based
upon these factors, the evaluation of all the relevant information provided to
them by the Company's financial advisors and taking into account the existing
trading ranges for the Company's stock, the Board determined that the Merger
Consideration was fair from a financial point of view to the Public
Stockholders.
Since the resignation of the two management directors of the Company
effective February 1, 1996 to pursue other interests, both remaining members of
the Board of Directors, as Principal Stockholders, are "interested" directors
under Section 144 of the DGCL with respect to the Merger Proposal. See
"--Conflict of Interests of Principal Stockholders in the Merger." The Board of
Directors has the authority under the Company's Bylaws to appoint additional
members of the Board in order to fill vacancies. However, the current members
of the Board have determined not to do so since any new members will be, by
definition, unfamiliar with the Company's business and history during the past
several years and, thereby, will be disadvantaged in evaluating a transaction of
such fundamental nature under the financial and time pressures presently
experienced by the Company. It would take a certain period for any independent
director named to fill a vacancy to learn enough of the Company's situation to
be comfortable making determinations that fundamentally affect its future, and
the Company presently does not have the financial capacity to survive for such
time.
In addition, given the Company's current financial condition, it would
be difficult if not impossible to locate qualified persons to fill such
vacancies without the offer of significant financial remuneration, which would
result in significant costs to the Company that are inordinate in comparison to
the perceived benefits of an independent Board member under the present
circumstances. The current members of the Board serve in those roles without
any compensation as such.
For these reasons, the Board made the determination that it would be
unable to fill the present vacancy with an independent member in the time-frame
necessary or at a cost which made fiscal sense for the Company at this time.
The members of the Board acknowledge and understand the actual conflict that
exists between them and the Company as a result of the interested transaction.
However, they believe that they are able to fulfill their fiduciary duties to
the Public Stockholders and bifurcate their separate roles as Principal
Stockholders proposing the Merger and Board members evaluating it on behalf of
the Company.
Opinion of TM Capital; Summary of Financial Analyses
On March 18, 1996, TM Capital delivered its oral opinion, which was
confirmed in writing on March 19, 1996, that the $0.10 per Public Share to be
received by the Public Stockholders in the Merger is fair, from a financial
point of view, to the Public Stockholders. TM Capital's opinion related only to
the consideration to be paid by Mergerco in connection with the Merger and does
not constitute a recommendation to any Public Stockholder of the Company as to
how such Public Stockholder should vote at the Special Meeting of Stockholders.
The full text of the written opinion of TM Capital, which sets forth the
assumptions made, the matters considered and the limitations of the review
undertaken in rendering such opinion, is attached hereto as Exhibit H and is
incorporated herein by reference.
As set forth in its opinion, TM Capital relied on the accuracy and
completeness of publicly available information and such other information
provided to it regarding the Company, including the views of management of the
Company, and has not assumed any responsibility for the independent verification
of such information. TM Capital further relied upon the assurance of management
of the Company that they were unaware of any facts that would make such
information incomplete or misleading. In arriving at its opinion, TM Capital
did not perform nor obtain any independent evaluation or appraisal of the assets
of the Company. TM Capital's opinion is necessarily based on the economic,
market and other conditions existing on the date of the opinion.
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In rendering its opinion, TM Capital, among other things, (i) reviewed
a draft of the Proxy Statement, (ii) reviewed publicly available information
relating to the Company, including annual reports on Form 10-K for the five
fiscal years ended June 30, 1995 and quarterly reports on Form 10-Q for the
periods ended September 30, 1995 and December 31, 1995, (iii) discussed with
senior management the Company's historical and current operations, financial
condition and future prospects and reviewed certain internal financial
information, business plans and forecasts prepared by management, (iv) visited
the headquarters and manufacturing facilities of the Company, (v) reviewed the
historical prices and trading volume of the Company's Common Stock, (vi)
reviewed certain financial and market data for the Company and compared such
information with similar information for certain publicly traded companies which
TM Capital deemed comparable, (vii) reviewed the financial terms of certain
mergers and acquisitions of businesses which TM Capital deemed comparable, and
(viii) performed such other analyses and investigations and considered such
other factors as TM Capital deemed appropriate. Senior management indicated to
TM Capital that, while the Company's technology was felt to be viable, the cash
flow problems of the Company would cause the Company to fail if it were not
recapitalized.
In rendering its opinion and making its presentation to the Board of
Directors, TM Capital discussed various financial analyses and certain other
factors it deemed relevant in rendering its opinion. Certain valuation
methodologies and certain other factors discussed and considered by the Board of
Directors are summarized below. The summary set forth below does not purport to
be a complete description of the analyses performed and the assumptions made by
TM Capital in reaching its opinion.
TM Capital considered the financial and stock market performance of a
group of selected publicly traded companies and certain recent transactions
involving acquisitions of companies deemed reasonably comparable to the Company.
The companies and transactions analyzed were deemed by TM Capital to be
reasonably comparable in certain relevant respects to the Company for the
purpose of this analysis. However, an analysis of these results is not
mathematical; rather, it involves complex considerations and judgments
concerning differences in financial and operating characteristics of the
comparable companies and transactions and other factors that could affect the
valuation of the companies to which they are being compared.
Analysis of Selected Publicly Traded Comparable Companies. TM Capital
compared selected historical operating financial data and financial ratios as
well as stock market data for the Company with similar data for a group of
selected publicly traded companies (the "Public Comparables"). The Public
Comparables included: Aetrium Inc., Adept Technology Inc., Amistar Corporation,
Brooks Automation Inc., Cognex Corporation, Perceptron, Inc., PPT Vision Inc.,
Quad Systems Corp., Robomatix Technologies and Robotic Vision Systems. TM
Capital considered these companies to be reasonably similar to the Company
because they compete in the same general industry. However, TM Capital noted
that the Public Comparables possess a wide range of revenues, market values and
profitability.
For the Public Comparables, TM Capital calculated the multiples of
market capitalization and debt-free market value for a variety of financial
parameters including net sales, earnings before interest expense, taxes,
depreciation and amortization ("EBITDA"), operating income, and net income for
the latest twelve months ("LTM") and book value as of the end of the latest
fiscal quarter. The analysis of Public Comparables (excluding certain companies
where multiples were not considered meaningful because the denominator was
negative or minimal or where information regarded that statistic was not
available) yielded the following ranges of debt-free market value multiples of
LTM net sales, EBITDA and operating income. With respect to debt-free market
value multiples to net sales, the range was from 0.5x to 4.8x; the Merger (in
all cases based upon consideration of $0.10 per Public Share) results in a
multiple of 1.3x. With respect to debt-free market value multiples to EBITDA,
the range was from 7.9x to 37.7x; the Merger results in multiples of EBITDA that
are not meaningful because the Company's LTM EBITDA results were negative. With
respect to debt-free market value multiples to operating income, the range was
-25-
from 9.3x to 60.1x for LTM operating income; the Merger results in multiples of
operating income that are not meaningful because the Company's LTM operating
income was negative. The analysis of the Public Comparables also resulted in
market capitalization multiples of 11.3x to 27.1x for current fiscal year
forecast net income and 9.4x to 22.1x for next fiscal year forecast net income;
the Merger results in multiples for current and next fiscal year forecast net
income that are not meaningful due to the Company's forecast that net income
will be negative for the 1996 and 1997 fiscal years. The analysis of this group
of companies yielded a range of multiples for book value as of the latest fiscal
quarter of 1.1x to 7.9x; the Merger results in a multiple that is not meaningful
because the Company has negative equity. Many of the comparisons of the Company
with the Public Comparables were not meaningful due to the poor performance of
the Company; these results emphasized the distressed nature of the Company and
assisted TM Capital, in conjunction with the various other analyses it
performed, in supporting its ultimate conclusion.
Analysis of Selected Acquisitions. TM Capital reviewed acquisition
premiums paid in acquisitions of technology companies (the "Premium Analysis")
since January 1, 1994. The Premium Analysis yielded a broad range of premiums,
with overall median premiums of 36.0% and 45.6% relative to the target
companies' stock prices one day and one month prior to announcement,
respectively; the Merger results in premiums of 400% and 150% respectively. The
multiples paid in an acquisition depend heavily upon the timing of the
acquisition relative to a variety of criteria, including the trading conditions
in the target's common stock and the overall market.
Stock Trading History. TM Capital examined the historical price and
trading volume of the Common Stock of the Company. TM Capital also compared the
share price performance of the Company to an index of the Public Comparables and
the S&P 500. Because of the illiquid nature of the Company's stock, this
analysis was not materially meaningful.
Discounted Cash Flow Analysis. TM Capital analyzed, through the use
of a discounted cash flow analysis, the present value of the future unleveraged
after-tax cash flow streams that the Company could produce over a five-year
period ending June 30, 2000, if the Company were to perform in accordance with
forecasts and other information provided by management. The forecasts supplied
to TM Capital by interim management provided for Revenues of $2.8 million, $4.2
million, $6.0 million, $7.5 million and $11.0 million for the fiscal years
ending June 30, 1996, 1997, 1998, 1999 and 2000, respectively. Gross Profit was
projected to be ($0.3) million, $0.8 million, $1.8 million, $3.0 million and
$5.0 million for the same periods, respectively. EBITDA was forecasted to be
($1.7) million, ($0.7) million, ($0.3) million, $0.3 million and $1.5 million
for the same periods, respectively. Operating Income was projected to be ($1.8)
million, ($0.9) million, ($0.5) million, $0.1 million and $1.2 million for the
same periods, respectively. Net Income was projected to be ($2.1) million,
($1.6) million, ($1.3) million, ($0.8) million and $0.3 million for the same
periods, respectively. After-tax cash flow was calculated by taking projected
operating income, adding depreciation, amortization and other non-cash items,
and then subtracting income taxes, increases in working capital and capital
expenditures. TM Capital estimated the terminal value for the Company at the
end of the five-year period by applying a range of multiples to the terminal-
year EBITDA. In performing this analysis, TM Capital utilized discount rates
ranging from 30% to 40% and EBITDA multiples ranging from 10x to 14x, which
resulted in common equity values for the Company ranging from negative $2.1
million to $0.8 million; the Merger results in a common equity value of $1.4
million. The discount rates used by TM Capital in this analysis were derived
from TM Capital's experience and knowledge of the returns expected in the market
for a high-risk investment such as this. The range of EBITDA multiples used in
this analysis was derived from the Public Comparables analysis, in which the
median EBITDA multiple was 14.6x. Due to the poor performance of the Company in
comparison with the Public Comparables, TM Capital used a range below the median
multiple.
In reaching its conclusion, TM Capital broadly considered all of the
above discussed analyses and did not assign specific weights to any analysis.
TM Capital did not consider any single analysis as a threshold
-26-
measurement for rendering its opinion. Ranges of fairness within each analysis
and with respect to the consideration to be paid in the Merger were not
established. In addition, TM Capital considered other factors, as discussed
above, including historical market and trading volume of the Company Common
Stock, past and current business prospects and projections prepared by
management. Based on the foregoing, TM Capital concluded that the consideration
to be paid by Mergerco in the proposed Merger was within the fair values
indicated by the above analyses considered in the aggregate.
The analysis conducted by TM Capital in arriving at its opinion
included numerous macroeconomic, operating and financial assumptions and
involved the application of complex methodologies and educated judgment. Such
analysis involves complex considerations and judgments concerning differences in
financial operating characteristics of the comparable companies and transactions
and other factors that could affect the valuations of the companies to which
they are being compared. As indicated above, in preparing its opinion, TM
Capital relied on the accuracy and the completeness of all information supplied
or otherwise made available to it by the Company and assumed, without
independent verification, that financial projections had been reasonably
prepared and reflected the best currently available estimates and judgments of
the Company's management as to the expected future financial performance of the
Company. TM Capital also made numerous assumptions regarding industry
performance, general business and economic conditions and other matters, many of
which are beyond the control of the Company. Any estimates incorporated in the
analyses performed by TM Capital are not necessarily indicative of the actual
past or future results or values, which may be significantly more or less
favorable than such estimates. Estimates of values do not purport to be
appraisals and do not necessarily reflect the prices at which companies may be
sold in the future.
Pursuant to a letter agreement dated February 21, 1996, the Company
engaged TM Capital to act as its financial advisor in connection with the
contemplated transaction. Pursuant to the terms of such engagement letter, it
was agreed that the Company would pay TM Capital a fee of $50,000 in connection
with the rendering of its opinion. In addition, the Company has also agreed to
reimburse TM Capital for its reasonable out-of-pocket expenses up to $5,000, and
to indemnify TM Capital against certain liabilities, including liabilities under
federal securities laws.
TM Capital is an investment banking firm engaged on a regular basis to
provide a range of investment banking and financial advisory services, including
the valuation of businesses and their securities in connection with mergers and
acquisitions. The Company selected TM Capital as its financial advisor on the
basis of the background, experience and reputation of TM Capital.
Financial Advisor to the Principal Stockholders
As described under "Special Factors / Background of the Merger,"
pursuant to the HL Engagement Letter, the Principal Stockholders retained
Howard, Lawson to act solely as their financial advisor (and not the advisor to
or agent of any other person) in connection with determining a course of action
for the Principal Stockholders relating to their investment in the Company.
Howard, Lawson was not requested to, and did not, make any valuation or render
any opinion (oral or written) or advice concerning the fairness of the Merger
Consideration to the Public Stockholders or to any other party (including the
Principal Stockholders), although Howard, Lawson did conduct various analyses in
connection with its engagement, as described below. A portion of Howard,
Lawson's engagement was to prepare a feasibility study regarding a possible
going private transaction and to initiate discussions with possible financing
sources regarding such a transaction. In connection with its engagement,
Howard, Lawson presented its report to the Principal Stockholders dated March
15, 1996 (the "Howard, Lawson Report"), which updated and superseded in its
entirety an earlier report.
-27-
As part of their activities, Howard, Lawson visited and interviewed
certain key customers, interviewed senior management of the Company, interviewed
several members of the Company's engineering staff, reviewed the stock price and
volume activity of the Common Shares since December 1, 1994, reviewed the
financial condition of the Company, estimated the Company's working capital
requirements through June 1996 and for fiscal 1997, reviewed the current
ownership and investments in the Company, and analyzed the financial performance
of other public companies in lines of business similar to that of the Company.
Howard, Lawson also prepared, for illustrative purposes only, a sample five-year
revenue and earnings scenario based on the five-year forecasts supplied by prior
management which are more particularly described above on page 17, and which
included various assumptions with respect to sales growth and gross margins,
which assumptions were developed, in part, from historical sales and gross
margin figures for a group of public companies deemed comparable for purposes of
the illustration. Howard, Lawson selected Quad Systems Corporation, Perceptron,
Inc., Robotic Vision Systems, Inc. and Adept Technology, Inc. as companies
generally in the same line of business as the Company. More specifically, these
companies provide industrial automation and robotics systems to the electronics
and automotive industries. Additionally, these companies were relatively modest
in absolute size with none having revenues in excess of $70 million annually or
total assets in excess of $45 million. An analysis of these public companies
indicated a median annual growth rate in sales of 35% and a median gross profit
margin of 45% for such companies. Such scenario yielded the following:
. The Fiscal 1996 operating results scenario was based on year-to-
date results of the Company and future orders projected by the
prior management as of January 31, 1996, and the existing expense
structure of the Company, which resulted in revenues of
approximately $3.6 million and a net loss of $1.1 million.
. The Fiscal 1997 operating results scenario was based on possible
orders to be delivered in Fiscal 1997 and existing expense
structure of the Company as of December, 1995, which resulted in
revenues of approximately $4.5 million and a loss of $600,000.
. The Fiscal 1998 operating results scenario was based on prior
management's October 1995 forecast for Fiscal 1996 which resulted
in revenues of approximately $7.3 million and profits before
taxes of $0.8 million.
. The Fiscal 1999-Fiscal 2001 operating results scenarios were
calculated by applying the prior years forecasts to the median
growth rates in sales and growth profit margin derived from the
analysis of the public companies discussed above. Operating
expenses were forecasted to grow at the same rate as revenues.
This calculation resulted in revenues of approximately $18.0
million and net income of $1.1 million for Fiscal 2001.
Such scenario presented the results that might be achieved by the
Company if it accomplished such assumed sales growth and gross margin levels,
received the substantial capital infusion it required and effectively
implemented the action items developed by the Principal Stockholders in
conjunction with Howard, Lawson. There can be no assurance that the actual
financial results of the Company will be consistent with those shown in such
scenario, and Public Stockholders should not rely upon such illustration as a
fair presentation of future financial performance of the Company. In addition,
Howard, Lawson illustrated the potential investment, costs and fees associated
with a going private transaction.
Howard, Lawson did not prepare any indications of value of the Company
or its Common Shares either prior to or after any potential transaction. The
review of public companies was limited to their historical operating
performance, such as sales growth and gross profit margins, and their public
market data for illustration purposes only.
-28-
Based on their activities, Howard, Lawson concluded that: the Company
required continuing infusions of capital to fund continuing operating losses;
approximately $550,000 of additional capital would be required to fund the
Company's operations from January to June 1996 (not including payment on trade
accounts payable past due or accrued interest expense to Messrs. Cooper and
Colket), the majority of which would be required between April and June of 1996;
at least $1 million in additional capital would be required to fund the
Company's operations during fiscal 1997; customer, vendor and employee
satisfaction were low; new sources of capital (i.e., new investors) would be
unlikely to be interested in an investment in the Company in the near term; and
the Company would not be viable as a going concern until a substantial financial
and operational restructuring had been completed.
Howard, Lawson has stated to the Principal Stockholders that, in its
view, the Howard, Lawson Report is not necessarily susceptible to partial
analysis or summary description. In addition, Howard, Lawson has advised the
Principal Stockholders that selecting portions of the Howard, Lawson Report or
of the summary set forth above, without considering the analyses as a whole,
could create an incomplete view of the processes underlying Howard, Lawson's
analyses. No company or transaction used in the above analyses as a comparison
is identical to the Company or the contemplated transaction. The Howard, Lawson
Report was prepared solely for the purposes described above. Analyses based
upon projected future results are not necessarily indicative of actual future
results, which may be significantly more or less favorable than suggested by
such analyses. Because such analyses are inherently subject to uncertainty,
being based upon numerous factors or events beyond the control of the parties or
their respective advisors, none of Mergerco, the Company or Howard, Lawson or
any other person assumes responsibility if future results are materially
different from those projected. The foregoing summary does not purport to be a
complete description of the Howard, Lawson Report and is qualified by reference
to the Howard, Lawson Report which is filed as an exhibit to the Schedule 13E-3.
In the course of its investigation, Howard, Lawson relied upon, and
assumed the accuracy and completeness of, publicly available information and the
financial and other information provided by the Company, but Howard, Lawson did
not assume any responsibility for independent verification for any of the
foregoing information. See "--Background of the Merger" for a description of
information provided by the Company. In addition, Howard, Lawson did not make
an independent evaluation or appraisal of the assets of the Company, nor was
Howard, Lawson furnished with any such evaluation or appraisals. The Howard,
Lawson Report was based on facts and circumstances existing and disclosed to
Howard, Lawson on the date such report was presented to the Principal
Stockholders.
Howard, Lawson provides financial advisory and investment banking
services for its clients. Howard, Lawson was selected to act as the Principal
Stockholders' financial advisor in connection with their interest in the Company
based upon Howard, Lawson's qualifications, expertise and reputation, including
the fact that Howard, Lawson, as part of its investment banking business, is
continually engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions and private placements, and valuations
for estate, corporate and other purposes. The Principal Stockholders selected
Howard, Lawson as their financial advisor because it is a recognized investment
banking firm that has substantial experience in transactions similar to the
Merger.
Pursuant to the terms of the HL Engagement Letter, the Principal
Stockholders agreed to pay Howard, Lawson a non-refundable cash fee of $20,000
plus a cash completion fee of $150,000 in the event the Principal Stockholders
elected to seek to acquire the Public Shares. The Principal Stockholders
further agreed that immediately following the closing of the transaction
pursuant to which the Principal Stockholders acquired the Public Shares, they
will cause the Surviving Corporation to issue to Howard, Lawson, or its
affiliate, a warrant to purchase 8% of the total number of shares of common
stock of the Surviving Corporation then outstanding, calculated on a fully-
diluted basis at the time of issuance of the warrant, of which 5% will be vested
immediately at the Effective Time and the remaining 3% will vest one-third on
each of the first three anniversaries of the Effective Time,
-29-
provided that Mr. Lawson remains on the Board of Directors of the Surviving
Corporation at each such date. The aggregate exercise price of the warrant will
be $240,000, which Howard, Lawson believes is a reasonable estimation of the
fair market value of the underlying common stock as of the date of issuance of
the warrant, in light of the capital contributions of approximately $2.5 million
to be made to the Surviving Corporation by the Principal Stockholders as
discussed above. The warrant will have a term of five (5) years. In addition,
the Principal Stockholders agreed to reimburse Howard, Lawson for its reasonable
out-of-pocket expenses during the term of the engagement.
Position of Principal Stockholders as to Fairness
The Principal Stockholders considered the analyses of and the factors
examined by Howard, Lawson, and have adopted those analyses and conclusions as
their own. See "--Background of the Merger" and "--Financial Adviser to the
Principal Stockholders." The Principal Stockholders determined the amount of
the Merger Consideration by taking into account these analyses and factors and
the existing trading ranges for the Company's stock and believe that these
analyses and factors as well as the consideration of the trading ranges when
considered together, provide a reasonable basis to believe that the Merger is
fair from a financial point of view to the unaffiliated Public Stockholders.
This belief should not, however, be construed as a recommendation by either of
the Principal Stockholders to the unaffiliated Public Stockholders to vote to
approve the Merger Agreement. The Principal Stockholders did not assign
specific relative weight to the analyses and factors considered in reaching
their belief as to fairness.
Conflict of Interests of Principal Stockholders in the Merger
The Principal Stockholders are the only persons who currently serve on
the Company's Board of Directors. As the sole stockholders of Mergerco, they
will have a direct economic interest in the Merger which creates a conflict of
interest with their roles as Board members in making the determination whether
the Merger is in the best interests of the Company and its stockholders so as to
recommend its approval and adoption by the stockholders of the Company. They
are also currently the Company's two largest stockholders. As of the date of
this Proxy Statement, Mr. Cooper has beneficial ownership (including voting
control of the Cooper Affiliate Shares) of approximately 27.6% of the
outstanding Common Shares, and Mr. Colket has beneficial ownership of
approximately 11.8% of the outstanding Common Shares. On a fully-diluted basis,
assuming the exercise of warrants that have been issued to each of the Principal
Stockholders in connection with debt financings provided to the Company by the
Principal Stockholders (the exercise prices of which are significantly greater
than the current market value, those percentages of beneficial ownership would
be 30.4% and 17.3%, respectively. In addition, the Company is currently
indebted to each of Messrs. Cooper and Colket for loans aggregating
$1,017,167.92 and $1,874,085.18, respectively, including accrued interest
through May 8, 1996.
In consideration of the anticipated contributions to Mergerco by the
Principal Stockholders and additional equity contributions to be made to the
Surviving Corporation by each of the Principal Stockholders, it is currently
anticipated that the equity interest in the Surviving Corporation ultimately
will be evenly divided between the Principal Stockholders. Additionally, the
Principal Stockholders, together with Mr. Lawson, will constitute the initial
members of the Board of Directors of the Surviving Corporation.
-30-
Certain Effects of the Merger
Following the Merger, the Principal Stockholders will own 100% of the
Surviving Corporation's outstanding shares of common stock. The Principal
Stockholders will be the sole beneficiaries of any future earnings and growth of
the Surviving Corporation (until shares of common stock are issued to other
stockholders) and will have the ability to benefit from any divestitures,
strategic acquisitions or other corporate opportunities that may be pursued by
the Company in the future. At such time, the Public Stockholders will cease to
have any ownership interest in the Company or rights as stockholders. The
Public Stockholders will no longer benefit from any increases in the value of
the Company or the payment of dividends on the Common Shares and will no longer
bear the risk of any decreases in value of the Company. To date, the Company
has never paid any dividends on the Common Shares.
As a result of the Merger, the Surviving Corporation will be privately
held and there will be no public market for its Common Stock. Upon consummation
of the Merger, the Common Shares will cease to be traded over-the-counter with
quotations compiled by the OTC Bulletin Board. In addition, registration of the
Common Shares under the Exchange Act will be terminated, which will eliminate
the reporting requirements under the Exchange Act.
Howard, Lawson will receive a warrant to purchase 8% of the Common
Stock of the Surviving Corporation under the terms set forth above, and certain
key employees and consultants of the Surviving Corporation are expected to
receive stock appreciation rights promptly after the Effective Time. In
particular, stock appreciation rights may be granted to Mr. Schmidt, the
Company's Vice President of Marketing and Sales. Moreover, the Surviving
Corporation may determine to initiate employee stock option and other employee
benefit plans in the future to compensate and incentives key employees.
Future Plans of the Company
The Principal Stockholders have agreed with each other to provide
approximately $2,500,000 in funds to the Surviving Corporation (not including
payment of the Merger Consideration and the expenses related to the transaction)
during the period from the Effective Time through July 1, 1997 in order to pay
certain trade debt of the Company and provide initial capital. The Surviving
Corporation's balance sheet will therefore be improved from that of the
Company's balance sheet immediately prior to the Merger, although the Surviving
Corporation will remain indebted to the Company's bank in the aggregate amount
of $1,700,000 and to the Principal Stockholders in the aggregate amount of
$2,891,253.10, including accrued interest thereon through May 8, 1996.
Moreover, such improvement in The Surviving Corporation's balance sheet will
occur only as a direct result of the proposed transaction, in the absence of
which the Principal Stockholders do not currently intend, and are under no
obligation, to invest the additional capital.
Except as indicated in this Proxy Statement, the Principal
Stockholders do not have any present plans or proposals subsequent to the Merger
which relate to or would result in an extraordinary corporate transaction, such
as a merger, reorganization or liquidation, involving the Company, a sale or
transfer of a material amount of assets of the Company or any material change in
the Company's corporate structure. The Principal Stockholders do presently
contemplate that, if the Merger is consummated, the Surviving Corporation will
be converted from a "C" corporation to a corporation taxed under Subchapter "S"
of the Internal Revenue Code of 1986, as amended, for the tax year beginning
July 1, 1996. The Principal Stockholders consider the election of a Subchapter
"S" corporate status to be one of the significant benefits to engaging in the
contemplated transactions because such election permits any losses or income
that may be incurred by the Surviving Corporation to be passed through and
reported on such stockholders' personal income tax returns and to eliminate a
corporate level federal income tax to the extent of future profits, if any.
Subchapter "S" status is not practical prior to the Merger because it is
unavailable to the Company
-31-
in its current ownership structure as a result of, among other reasons, it has
more than 35 stockholders. In addition, the Principal Stockholders expect that
the Company will need to undergo a significant financial, operational and
managerial restructuring subsequent to the Merger for it to have any possibility
of attaining financial stability and economic viability as a going concern, with
realistic prospects for long-term profitability and growth.
The Principal Stockholders anticipate that the Merger will result in
significant changes both in the management and financial structure of the
Company. They anticipate that, by providing or making available additional debt
financing, including continuing to guarantee corporate debt, and by injecting
additional equity capital into the Company, they can assist the Company to
restructure itself financially, which should result in eliminating much of its
delinquent trade credit and all of its bank debt currently in default. They
also anticipate that if they personally loan additional capital to the Company
to help solve the Company's financial problems, corporate assets would continue
to be used to collateralize the debt to them.
The Principal Stockholders anticipate that the assumption by the
Company of the status of a private company would allow the Company to eliminate
certain overhead costs (including the time devoted by employees and the fees and
expenses of various professional advisors and service providers of the Company)
which relate exclusively to the Company's being a public company. Some of those
costs include the following: the costs of certain accounting, auditing and SEC
counsel activities, the cost of preparing, printing and mailing corporate
reports and proxy statements, the expense of a transfer agent and the cost of
dealing with stockholder questions. The Company estimates that these costs
approximated $175,000 for each of the last two years exclusive of unquantifiable
management time.
Dissenters' Rights of Appraisal
The following is a summary of the provisions of Section 262 of the
DGCL relating to appraisal rights. Section 262 of the DGCL is reproduced in its
entirety as Exhibit I to this Proxy Statement, and this summary is qualified in
its entirety by reference to Exhibit I. Stockholders should read carefully
Exhibit I and, if they wish to exercise their rights to an appraisal, follow
carefully the procedures set forth therein. Any stockholder considering
demanding an appraisal is advised to consult legal counsel.
Under Section 262 of the DGCL, holders of record of shares of the
Company who do not wish to accept the consideration for their shares as provided
for in the Merger Agreement have the right to seek an appraisal of the fair
value of their shares exclusive of any element of value arising from the
accomplishment or expectation of the Merger in the Delaware Court of Chancery
(the "Delaware Court"). Each stockholder is urged to read carefully the
materials contained in this Proxy Statement and the other materials incorporated
herein in making a determination whether to accept the consideration for their
shares as provided for in the Merger Agreement or to seek an appraisal pursuant
to the DGCL. Stockholders desiring to exercise their appraisal rights under the
DGCL are referred to herein as "Appraisal Stockholders."
Each Appraisal Stockholder wishing to assert a right to such appraisal
must, before the taking of the vote at the Meeting to be held on June 18, 1996,
make a written demand for the appraisal of his or her shares to the Company at
the address set forth below. Failure to make such demand on or before such time
will foreclose an Appraisal Stockholder's right to an appraisal. The demand
must reasonably inform the Company of the identity of the Appraisal Stockholder
making the demand as well as the intention of such Appraisal Stockholder to
demand an appraisal of the fair value of the shares held by such stockholder.
For purposes of making an appraisal demand, the address of the Company
is: Megamation Inc., 51 Everett Drive, Building #B4, Lawrenceville, New Jersey
08648, Attention: Edward F. Borkowski, President.
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Only a holder of record of shares, or a person duly authorized and
explicitly purporting to act on the record holder's behalf, is entitled to
assert an appraisal right with respect to the shares registered in the record
holder's name. Beneficial owners who are not record holders and who wish to
exercise appraisal rights are advised to consult promptly with the appropriate
record holders as to the timely exercise of appraisal rights. A record holder,
such as a broker, who holds shares as a nominee for others may exercise
appraisal rights with respect to the shares held for one or more beneficial
owners, while not exercising such rights for other beneficial owners. In such a
case, the written demand should set forth the numbers of shares as to which the
demand is made. Where no shares are expressly mentioned, the demand will be
presumed to cover all shares held in the name of such record holder.
A holder of shares held in "street name" who desires an appraisal must
take such actions as may be necessary to ensure that a timely and proper demand
for an appraisal is made by the record holder of such shares. Shares held
through brokerage firms, banks and other financial institutions are frequently
deposited with and held of record in the name of a nominee of a central security
depository, such as Cede & Co. Any holder of shares desiring an appraisal who
held his or her shares through a brokerage firm, bank or other financial
institution is responsible for ensuring that the demand for an appraisal is made
by the record holder. The Appraisal Stockholder should instruct such firm, bank
or institution that the demand for an appraisal must be made by the record
holder of the shares, which might be the nominee of a central security
depository if the shares have been so deposited. As required by Section 262 of
the DGCL, a demand for an appraisal must reasonably inform the Company of the
identity of the record holder (which might be a nominee as described above) and
of such holder's intention to seek an appraisal of such shares.
A demand for an appraisal of shares owned of record by two or more
joint holders must identify and be signed by or for all of the holders. A
demand for an appraisal signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity must so identify the persons signing the
demand.
An appraisal demand may be withdrawn by an Appraisal Stockholder
within 60 days after the Effective Time, but thereafter the written approval of
the Company is needed for any such withdrawal. Upon withdrawal of an appraisal
demand, a holder of shares will be entitled to receive the consideration for
their shares as provided for in the Merger Agreement. No interest will be paid
on this amount.
Within 120 days after the Effective Time (the "120-Day Period"), any
Appraisal Stockholder who has properly demanded an appraisal and who has not
withdrawn his or her demand as provided above (such Appraisal Stockholders being
hereinafter referred to collectively as the "Dissenting Stockholders" and the
shares held by such Dissenting Stockholders being hereinafter referred to as
"Dissenting Shares") and the Company each has the right to file in the Delaware
Court a petition (the "Petition") demanding a determination of the fair value of
the Dissenting Shares held by all of the Dissenting Stockholders. If, within
the 120-Day Period, no Petition shall have been filed as provided above, all
rights to an appraisal will cease and all the Dissenting Stockholders will
become entitled to receive the consideration for their shares as provided for in
the Merger Agreement without interest thereon after the Effective Time, with
respect to such Dissenting Shares. The Company is not obligated and does not
intend to file such a Petition. Any Dissenting Stockholder is entitled,
pursuant to a written request to the Company made within the 120-Day Period, to
receive from the Company a statement setting forth the aggregate number of
shares with respect to which demands for appraisal have been received and the
aggregate number of Dissenting Stockholders.
Upon the filing of the Petition, service of a copy thereof is required
to be made upon the Company, which, within 20 days after such service, must file
in the office of the Register in Chancery in which the Petition was filed a duly
verified list containing the names and addresses of all Appraisal Stockholders.
The Delaware Court may order that notice of the time and place fixed for the
hearing on the Petition be sent by registered or certified
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mail to the Company and all of the Dissenting Stockholders, and be published at
least one week before the day of the hearing in a newspaper of general
circulation published in the City of Wilmington, Delaware or in another
publication determined by the Delaware Court. The Delaware Court will approve
the form of notice by mail and by publication. The costs relating to these
notices will be borne by the Company. If a hearing on the Petition is held, the
Delaware Court is empowered to determine which Appraisal Stockholders have
complied with the provisions of Section 262 of the DGCL and are entitled to an
appraisal of their shares. The Delaware Court may require that Dissenting
Stockholders submit their stock certificates which had represented shares for
notation thereon of the pendency of the appraisal proceedings. The Delaware
Court is empowered to dismiss the proceedings as to any Dissenting Stockholder
who does not comply with such requirement. Accordingly, Dissenting Stockholders
are cautioned to retain their stock certificates pending resolution of the
appraisal proceedings.
Dissenting Shares will be appraised by the Delaware Court at their
fair value as of the Effective Time, exclusive of any element of value arising
from the accomplishment or expectation of the Merger. The Delaware courts
appraise dissenting shares by considering, among other things, proof of value by
any techniques or methods which are generally acceptable in the financial
community and otherwise admissible in court taking into consideration market
value, asset value, dividends, earnings prospects, the nature of the enterprise
and all other relevant factors involving the value of a company. The value so
determined for the shares could be equal to, more or less than the consideration
for the shares as provided for in the Merger Agreement, and could be based upon
consideration other than, or in addition to, the consideration for the shares as
provided for in the Merger Agreement, the market value of the shares, asset
values and earnings capacity. The Company reserves the right to assert in any
appraisal proceeding that the fair value of the shares as of the Effective Time
is less than the consideration for the shares as provided for in the Merger
Agreement.
In Weinberger v. UOP, Inc., et al. (decided February 1, 1983), the
Delaware Supreme Court stated, among other things, that "proof of value by any
techniques or methods which are generally considered acceptable in the financial
community and otherwise admissible in court" should be considered in an
appraisal proceeding, and that "fair price obviously requires consideration of
all relevant factors involving the value of a company. . ." The Delaware
Supreme Court stated that in making this determination of fair value the court
must consider market value, asset value, dividends, earnings prospects, the
nature of the enterprise and any other factors which could be ascertained as of
the date of the merger that throw any light on future prospects of the merged
corporation. The Delaware Supreme Court also held that "elements of future
value, including the nature of the enterprise, which are known or susceptible of
proof as of the date of the merger and not the product of speculation, may be
considered." In addition, the Delaware Supreme Court stated in Weinberger that
while ordinarily a stockholder's only monetary remedy would be an appraisal,
such remedy may not be adequate "in certain cases, particularly where fraud,
misrepresentation, self-dealing, deliberate waste of corporate assets, or gross
and palpable overreaching are involved," and that in such cases the Delaware
Court would be free to fashion any form of appropriate relief.
The Delaware Court may also, on application, (i) determine a fair rate
of interest, simple or compound, if any, to be paid to Dissenting Stockholders
in addition to the value of the Dissenting Shares for the period from the
Effective Time to the date of payment, (ii) assess costs among the parties as
the Delaware Court deems equitable and (iii) order all or a portion of the
expenses incurred by any Dissenting Stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and fees
and expenses of experts, to be charged pro rata against the value of all
Dissenting Shares. Determinations by the Delaware Court are subject to
appellate review by the Delaware Supreme Court.
Dissenting Stockholders are generally permitted to participate in the
appraisal proceedings. No appraisal proceeding in the Delaware Court shall be
dismissed as to any Dissenting Stockholder without the approval of the Delaware
Court, and this approval may be conditioned upon terms which the Delaware Court
deems just.
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From and after the Effective Time, Dissenting Stockholders will not be
entitled to vote their shares for any purpose and will not be entitled to
receive payment of dividends or other distributions in respect of such shares
payable to stockholders of record thereafter.
Certain Federal Income Tax Consequences of the Merger
The Company has received an opinion of Pepper, Hamilton & Scheetz,
counsel to the Principal Stockholders, indicating its concurrence with the
following:
. The receipt of cash for Common Shares pursuant to the Merger will
be a taxable transaction for federal income tax purposes under
the Code, and also may be a taxable transaction under applicable
state, local, foreign and other tax laws.
. In general, for federal income tax purposes a stockholder will
recognize gain or loss equal to the difference between the tax
basis for the Common Shares held by such stockholder and the
amount of cash received in exchange therefor. Such gain or loss
will be capital gain or loss if the Common Shares are capital
assets in the hands of the stockholder and will be long-term
capital gain or loss if the holding period for the Common Shares
is more than one year. As of the date of this Proxy Statement,
long-term capital gains recognized in 1996 by stockholders who
are individuals are taxable at a maximum statutory rate of 28%
(as compared with a maximum statutory rate of 39.6% on ordinary
income). Corporations generally are subject to tax at a maximum
statutory rate of 35% on both capital gains and ordinary income.
The distinction between capital gain and ordinary income may be
relevant for certain other purposes, including the taxpayer's
ability to utilize capital loss carryovers to offset any gain
recognized.
The foregoing discussion may not be applicable to stockholders who
acquired their Common Shares pursuant to the exercise of options or other
compensation arrangements or who are not citizens or residents of the United
States or who are otherwise subject to special tax treatment under the Code.
If payments are made to option or warrant holders under the terms of
the Merger, it would be a taxable transaction for federal income tax purposes.
The character of the income or loss, if any, would be dependent on the facts and
circumstances under which the warrant or option was granted.
Certain noncorporate stockholders may be subject to back-up
withholding at a rate of 31% on the receipt of the Merger Consideration.
Generally, back-up withholding applies only when the taxpayer fails to furnish
or certify a proper taxpayer identification number or when the payor is notified
by the Internal Revenue Service that the taxpayer identification number used by
the stockholder is incorrect.
THE FOREGOING DISCUSSION OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF
THE MERGER IS INCLUDED FOR GENERAL INFORMATION ONLY AND IS BASED ON EXISTING TAX
LAWS AS OF THE DATE OF THIS PROXY STATEMENT, WHICH MAY DIFFER AT THE EFFECTIVE
TIME. PROPOSED LEGISLATION, IF ENACTED, MAY ALTER THE RATES OF TAXATION SHOWN
ABOVE. EACH STOCKHOLDER IS URGED TO CONSULT SUCH STOCKHOLDER'S OWN TAX ADVISOR
TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO SUCH STOCKHOLDER OF THE MERGER,
INCLUDING THE APPLICABILITY AND EFFECT OF STATE, LOCAL, FOREIGN AND OTHER TAX
LAWS AND BACK-UP WITHHOLDING.
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Estimated Fees and Expenses; Sources of Funds
Estimated fees and expenses incurred or to be incurred by Company or
Mergerco in connection with the Merger and the funds required to repay debt and
provide initial working capital to the Company subsequent to the Merger are
approximately as follows:
Payment of Merger Consideration (1)....... $ 920,483
Financial advisory fees and expenses (2).. 230,000
Legal fees and expenses (3)............... 260,000
Accounting fees and expenses.............. 15,000
SEC filing fees........................... 185
Printing and mailing expenses............. 5,000
Paying agent fees and expenses............ 5,000
Miscellaneous expenses.................... 4,332
Repayment of certain Company trade debt... 600,000
Working capital infusion.................. 1,960,000
----------
TOTAL.................................... $4,000,000
- --------------------
(1) Includes payment for all outstanding Common Shares other than those owned
by Mergerco.
(2) Includes the fees and estimated expenses of TM Capital and Howard, Lawson.
See "--Opinion of TM Capital; Summary of Financial Analyses--Financial
Advisor to the Principal Stockholders."
(3) Includes the estimated fees and expenses of counsel for the Company and
counsel for each of the Principal Stockholders.
The total amount of funds required to pay the Merger Consideration and the
expenses incident to the Merger Agreement and the consummation of the
transactions contemplated thereby, to repay certain trade debt of the Company
and to provide for initial working capital for the Surviving Corporation's
operations subsequent to the Merger will be provided from the personal funds of
the Principal Stockholders, and other than the Merger Consideration, which will
be contributed to Mergerco as equity immediately before the Merger, may take the
form of either a variety of debt financing arrangements, additional
contributions to equity capital or a combination of both. Each party shall pay
its own expenses if the Merger is not consummated. The total amount of
$4,000,000 in capital to be invested in the transaction represents a commitment
on the part of the Principal Stockholders to each other to support the
investment in the Company made by the other. A portion of such total will be
paid at or shortly after the Effective Time to pay the Merger Consideration and
the expenses of the transaction and to fund the initial working capital
requirements of the Surviving Corporation, and a portion of such total will be
phased-in during the period through July 1, 1997.
Accounting Treatment of the Merger
The Merger will be accounted for as a "purchase" as that term is used
under generally accepted accounting principles for accounting and financial
reporting purposes.
Regulatory Approvals
No federal or state regulatory approvals are required to be obtained,
nor are any regulatory requirements complied with, in connection with
consummation of the Merger by any party to the Merger Agreement, except for the
requirements of the DGCL in connection with obtaining shareholder approvals and
consummation of the Merger and the SEC in connection with the filing and
dissemination of this Proxy Statement and related documents.
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THE MEETING; MECHANICS OF VOTING AND PROXIES
Time, Date and Place
The Meeting of the stockholders of the Company to consider and vote
upon the Merger Proposal will be held on Tuesday, June 18, 1996 at 10:00 a.m.,
local time, at the offices of Pepper, Hamilton & Scheetz, Two Logan Square,
Eighteenth and Arch Streets, Philadelphia, Pennsylvania 19103-2799.
Record Date; Voting Securities; Quorum
Only stockholders of record at the close of business on June 18, 1996,
the Record Date for the Meeting, will be entitled to notice of, and to vote at,
the Meeting and any adjournments or postponements thereof. As of the close of
business on the Record Date, there were 14,358,666 outstanding Common Shares
held by 423 record holders of the Company. There was no other class of voting
securities of the Company outstanding on that date. Each Common Share is
entitled to one vote, and all Common Shares have equal voting rights. The
presence, in person or by Proxy, of the holders of a majority of the total
outstanding Common Shares entitled to vote is necessary to constitute a quorum
for the transaction of business at the Meeting. Abstentions and broker non-
votes (where a broker or other record holder submits a Proxy but does not have
authority to vote a customer's Common Shares) will be considered present for
purposes of establishing a quorum.
Required Vote
Pursuant to the DGCL, the affirmative vote of at least a majority of
all of the outstanding Common Shares is required to approve and adopt the Merger
Proposal. The approval of a majority of the Public Shares held by the Public
Stockholders is not required. The Principal Stockholders will vote the Common
Shares that they intend to contribute to Mergerco, representing approximately
35.9% of the outstanding Common Shares, in favor of the approval and adoption of
the Merger Agreement. In addition, the Company has been informed that Dr.
Pollack's Common Shares and the Cooper Affiliate Shares, aggregating
approximately 8.0% and 3.5%, respectively, of the outstanding Common Shares will
be voted in favor of the Merger Proposal. Therefore, an aggregate of
approximately 47.4% of the outstanding Common Shares shall be voted in the
affirmative. The vote in favor of the approval and adoption of the Merger
Agreement is not assured for purposes of the DGCL without the affirmative vote
of additional shares held by another stockholder of the Company. However, the
vote of only approximately 373,325 additional shares, or less than an additional
3.0% of the outstanding Common Shares, is necessary to approve the Merger
Agreement.
Voting of Proxies
Common Shares represented by Proxies, in the accompanying form of
Proxy, which are properly executed, duly returned and not revoked, will be voted
in accordance with the instructions contained therein. If no specification is
indicated on the Proxy, the Common Shares represented thereby will be voted (i)
FOR the Merger Proposal, and (ii) FOR any other matter that may properly be
brought before the Meeting in accordance with the judgment of the person or
persons voting the Proxies. The execution of a Proxy will in no way affect a
stockholder's right to attend the Meeting and vote in person. Attendance at the
Meeting will not in and of itself constitute the revocation of a Proxy.
A stockholder voting through a Proxy who abstains with respect to
approval of the Merger will be considered to be present and entitled to vote on
that matter and will be, in effect, a negative vote, but a stockholder
(including a broker) who does not give authority to a Proxy to vote, or
withholds authority to vote, on such matter shall not be considered present and
entitled to vote thereon.
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Any Proxy executed and returned by a stockholder may be revoked at any
time thereafter if written notice of revocation is given to the Secretary of the
Company prior to the vote to be taken at the Meeting, or by execution of a
subsequent Proxy which is presented at the Meeting, or if the stockholder
attends the Meeting and votes by ballot, except as to any matter or matters upon
which a vote shall have been cast pursuant to the authority conferred by such
Proxy prior to such revocation.
The cost of solicitation of Proxies from the stockholders on behalf of
the Board of Directors will be paid by the Company. In addition to solicitation
by mail, directors, officers and regular employees of the Company may solicit
Proxies by telephone, telegram, facsimile transmission or by personal
interviews. Such persons will receive no additional compensation for such
services but may be reimbursed for out-of-pocket expenses incurred in connection
therewith. The Company will reimburse banks, brokerage firms, nominees,
fiduciaries and custodians for their reasonable charges and expenses incurred in
forwarding Proxy material to the beneficial owners of Common Shares held of
record by such persons.
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THE MERGER AGREEMENT
General
The Merger Agreement provides for the Merger of Mergerco with and into
the Company at the Effective Time and the separate corporate existence of
Mergerco shall cease and the Company shall continue as the Surviving Corporation
to be governed by the laws of the State of Delaware. As a result of the Merger,
the Principal Stockholders will own all of the Surviving Corporation's common
stock. In the Merger, the stockholders of the Company, other than Mergerco and
stockholders who exercise their dissenters' rights under Delaware law, will
received the Merger Consideration described below. See "SPECIAL
FACTORS--Purpose and Reasons for the Merger."
Effective Time of the Merger
The Effective Time of the Merger will occur upon duly filing a
Certificate of Merger with the Secretary of State of the State of Delaware (as
required by the DGCL) or at such later time as is specified in such Certificate
of Merger. It is anticipated that such Certificate of Merger will be filed as
promptly as practicable on or after the Closing Date. Such filing will be made,
however, only upon satisfaction or waiver of all conditions to the Merger
contained in Article 5 of the Merger Agreement. The following discussion of the
Merger Agreement is qualified in its entirety by reference to the complete text
of the Merger Agreement, which is attached to this Proxy Statement as Exhibits
A-1 and A-2 and is incorporated herein by reference.
The Surviving Corporation
Under Article 1 of the Merger Agreement, at the Effective Time, the
effect of the Merger will be as provided in Section 251 of the DGCL. The
Company, as the Surviving Corporation, will possess all of the rights,
privileges, immunities, powers and franchises, of a public and private nature,
of the Company and Mergerco, and all property, real, personal and mixed, and all
other causes of action and all and every other interest of, or belonging to or
due to, Company or Mergerco, will be deemed to be transferred to and vested in
such Surviving Corporation without further act or deed; and the title to any
real estate, or any interest therein, vested in either of the merged companies
shall not revert or in any way be impaired by reason of the Merger. The
Surviving Corporation will thereafter be responsible and liable for all of the
liabilities and obligations of the Company and Mergerco; any claim existing or
action or proceeding pending by or against either of the merged companies may be
prosecuted to judgment as if such Merger had not taken place, or the Surviving
Corporation may be substituted in the place of the Company and Mergerco.
Section 1.4 of the Merger Agreement provides that the Principal Stockholders,
who will be the directors of Mergerco immediately prior to the Effective Time,
will become the directors, together with Mr. Lawson, of the Surviving
Corporation at the Effective Time, and the executive officers of the Company
immediately prior to the Effective Time will become the executive officers of
the Surviving Corporation after the Effective Time, until their respective
successors have been duly elected or appointed and qualified in the manner
provided in the Certificate of Incorporation and By-Laws of the Surviving
Corporation, or as otherwise provided by law. In addition, Sections 1.2 and 1.3
of the Merger Agreement provides that the Surviving Corporation will adopt as
its Certificate of Incorporation and By-laws the Certificate of Incorporation
and By-laws of Mergerco as in effect immediately prior to the Effective Time,
until duly amended in accordance with the terms thereof and the DGCL.
Consideration to be Paid to Public Stockholders; Conversion of Common Shares
Under Section 2.1 of the Merger Agreement, as a result of the Merger,
each Common Share (except shares held by the Company as treasury stock, shares
owned by Mergerco and shares owned by Public Stockholders who perfect their
dissenters' rights under the DGCL) issued and outstanding immediately prior to
the Effective Time
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will be converted into and represent the right to receive the Merger
Consideration of $.10 in cash, without interest, subject to applicable back-up
withholding taxes. Upon conversion, each Common Share will no longer be
outstanding and will automatically be canceled and retired and cease to exist
and certificates previously evidencing Common Shares immediately prior to the
Effective Time will thereafter represent only the right to receive the Merger
Consideration. Each Common Share owned by Mergerco or held by the Company as
treasury stock will be canceled without any conversion rights or consideration.
Each share of common stock, par value $.01 per share, of Mergerco issued and
outstanding immediately prior to the Effective Time will automatically be
converted into one newly and validly issued, fully paid and nonassessable share
of common stock, par value $.01 per share, of the Surviving Corporation.
Under Section 2.4 of the Merger Agreement, at the Effective Time,
except as otherwise provided in the Merger Agreement, each option and warrant
granted by the Company to purchase Common Shares, which is outstanding
immediately prior to the Effective Time, will be canceled and retired and will
cease to exist, subject to the written agreement of each option and warrant
holder. In the event that an option or warrant granted by the Company to
purchase Common Shares has vested and is exercisable (or vests and becomes
exercisable as a result of the Merger), each holder of such option or warrant
will, in settlement thereof, receive from the Surviving Corporation for each
Common Share subject to such option or warrant an amount in cash (subject to
applicable withholding tax) equal to the difference between the Merger
Consideration and the per share exercise price of such option or warrant, to the
extent such difference is a positive number. Upon receipt of such consideration,
the option or warrant will be canceled. Because none of the exercise prices for
such options or warrants is less than the $.10 per share Merger Consideration,
the practical result of this provision is that no consideration will be
delivered in exchange for the cancellation of all outstanding options and
warrants to purchase Common Shares.
As described above, upon consummation of the Merger, subject to the
provisions described below, each Common Share outstanding immediately prior to
the Effective Time (except shares held by the Company as treasury stock, shares
owned by Mergerco and shares owned by Public Stockholders who perfect their
dissenters' rights under the DGCL) will be converted into the right to receive
the Merger Consideration. Under Section 2.3 of the Merger Agreement, if the
Merger is consummated promptly after the Effective Time, the Surviving
Corporation shall deposit with the Paying Agent monies sufficient to pay the
aggregate Merger Consideration (the "Payment Fund"). In addition, instructions
with regard to the surrender of certificates formerly representing Common
Shares, together with the Letter of Transmittal to be used for that purpose,
will be mailed by the Paying Agent to the Public Stockholders as soon as
practicable after the Effective Time. The Paying Agent, as soon as practicable
following receipt from a Public Stockholder of a duly executed Letter of
Transmittal, together with certificates formerly representing Common Shares and
any other items required by the Surviving Corporation or the Paying Agent, shall
pay to such Public Stockholder the product of: (x) the number of Common Shares
previously evidenced by such certificates and (y) the Merger Consideration, out
of the Payment Fund and the certificates so surrendered will be canceled. If
payment is to be made to a person other than the person in whose name the
certificate surrendered is registered, it will be a condition of payment that
the certificate so surrendered be properly endorsed or otherwise in proper form
for transfer and that the person requesting such payment pay any transfer or
other taxes required by reason of such payment or establish to the satisfaction
of the Surviving Corporation that such taxes have been paid or are not
applicable.
STOCKHOLDERS OF THE COMPANY SHOULD NOT SEND ANY STOCK CERTIFICATES
EVIDENCING COMMON SHARES WITH THEIR PROXY CARDS AT THIS TIME. ALL QUESTIONS AND
REQUESTS FOR INFORMATION RELATING TO THE PROCEDURE FOR PAYMENT OF THE MERGER
CONSIDERATION FOR THE PUBLIC SHARES SHOULD BE DIRECTED TO THE PAYING AGENT.
Under Section 2.3(b) of the Merger Agreement, until surrendered, in
accordance with provisions of the Merger Agreement, from and after the Effective
Time, each certificate previously evidencing Common Shares
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(other than certificates previously evidencing shares held in treasury of the
Company or held by Mergerco) shall represent for all purposes only the right to
receive the Merger Consideration to which such holder is entitled and shall
cease to have any rights with respect to the Common Shares formerly represented
thereby except as otherwise provided by the Merger Agreement or by law.
Under Section 2.3(c) of the Merger Agreement, any funds remaining in
the Payment Fund that remain unclaimed by Public Stockholders for six months
after the Effective Time will be returned to the Surviving Corporation and any
Public Stockholder who has not exchanged his Public Shares for the Merger
Consideration prior to that time shall look thereafter only to the Surviving
Corporation for payment of the Merger Consideration in respect of his Public
Shares. Any amounts remaining unclaimed by Public Stockholders one year after
the Effective Time will, to the extent permitted by abandoned property and any
other applicable law, become the property of the Surviving Corporation without
further action or request, free and clear of all claims or interest of any
person previously entitled to such claims. All interest accrued in respect of
the Payment Fund shall inure to the benefit of and be paid to the Surviving
Corporation. Notwithstanding the foregoing, neither Mergerco nor the Surviving
Corporation shall be liable to any holder of Common Shares for any amount paid
to a public official pursuant to applicable abandoned property, escheat or
similar law.
Under Section 2.3(d) of the Merger Agreement, the Surviving
Corporation will be entitled to deduct and withhold from consideration payable
to any holder of Common Shares such amounts as the Surviving Corporation is
required to deduct and withhold with respect to the making of such payment under
applicable tax law. To the extent that amounts are so withheld by Surviving
Corporation, such amounts will be treated for all purposes of the Merger
Agreement as having been paid to the relevant holder of Common Stock.
Under Section 2.3(e) of the Merger Agreement, at the Effective Time,
the stock transfer books will be closed and there will be no further
registration of transfer of Common Shares thereafter on the records of the
Company.
Representations and Warranties
Article 4 of the Merger Agreement contains various representations and
warranties of the Company and Mergerco relating to, among other things, the
following matters (which representations and warranties are subject, in certain
cases, to specified exceptions and, generally, apply only to facts and
circumstances existing as of the date of the Merger Agreement): (a) due
incorporation, corporate existence, good standing and power of, and similar
corporate matters with respect to, each of the Company and Mergerco; (b)
corporate power and authority to enter into, and the valid and binding execution
and delivery of, the Merger Agreement by each such party; (c) the absence of any
governmental authorization, consent or approval required to consummate the
Merger, except as disclosed; (d) the Merger Agreement and the Merger not
resulting in contraventions or conflicts with respect to the Certificate of
Incorporation or By-laws of the Company or Mergerco and violations of laws,
regulations, judgments, injunctions, orders or decrees relating to the Company
and Mergerco; and (e) the accuracy of information supplied by the Company and
Mergerco included in this Proxy Statement and the Schedule 13E-3.
In Section 4.1 of the Merger Agreement, the Company has made certain
additional representations and warranties to Mergerco relating to the following
matters (which representations and warranties are subject, in certain cases, to
specified exceptions and, generally, apply only to facts and circumstances
existing as of the date of the Merger Agreement): (a) the capital structure of
the Company; (b) the delivery to Mergerco of certain documents filed by the
Company with the SEC and the accuracy of the information contained in such
documents; (c) the fair presentation of the financial statements of the Company;
(d) the absence of any material adverse changes to the Company's business
operations or financial conditions resulting in a Material Adverse Effect to the
Company; (e) the vote of the Board of Directors of the Company to approve the
Merger Agreement and the Merger, to elect
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not to be subject to the applicable state takeover law and to recommend the
approval and adoption of the Merger Agreement and the Merger by the Stockholders
of the Company; (f) the delivery of a fairness opinion from TM Capital; and
(g) certain tax matters.
In Section 4.2 of the Merger Agreement, Mergerco has made certain
additional representations and warranties to the Company relating to the
following matters (which representations and warranties are subject, in certain
cases, to specified exceptions and, generally, apply only to facts and
circumstances existing as of the date of the Merger Agreement): (a) the vote of
the Board of Directors and the Stockholders of Mergerco to approve the Merger
Agreement and the Merger and (b) at the Effective Time, the sufficiency of
available funds to provide all of the requisite Merger Consideration, to effect
all refinancing required in connection with the transactions contemplated by the
Merger Agreement and to pay all related fees and expenses.
Covenants
In Article 6 of the Merger Agreement, the Company has agreed that
during the period from the date of the Merger Agreement to the Effective Time,
except as otherwise provided in the Merger Agreement or consented to by
Mergerco, the Company will conduct its business only in the regular and ordinary
course of business consistent with past practice and shall use commercially
reasonable efforts to preserve substantially intact its business organizations
and preserve its relationships with third parties with whom they have business
dealings. The Company has further agreed that it shall not: (i) declare or pay
any dividends on or make any other distributions on any shares of its capital
stock, (ii) split, combine or reclassify any of its capital stock or issue or
authorize or propose the issuance of any other securities in respect of or in
substitution for shares of its capital stock, (iii) repurchase or otherwise
acquire any shares of its capital stock, except as required by the terms of its
securities already outstanding or as contemplated by the Merger Agreement;
(iv) grant any options, warrants or rights to purchase Common Shares or amend or
reprice any option or the stock option plan; (v) issue, deliver or sell, or
authorize, or propose to issue any shares of its capital stock, any Company
Voting Debt (as defined in the Merger Agreement) or any rights, warrants or
options to acquire such shares; (vi) make any changes in its Certificate of
Incorporation or By-laws; (vii) subject to the fiduciary responsibilities of the
Directors, acquire by merger or consolidation or purchase a substantial equity
interest in or substantial portion of the assets of any corporation, partnership
or associate or division thereof; (viii) subject to the fiduciary
responsibilities of the Directors, sell, lease, encumber or otherwise dispose of
any of its assets except dispositions in the ordinary course of business;
(ix) authorize, recommend or propose to adopt a plan of complete or partial
dissolution except as permitted by the Merger Agreement; (x) take or agree to
take any action that would make inaccurate any of the representations or
warranties contained in the Merger Agreement; (xi) increase in any manner the
compensation of directors, officers or key employees or enter into any new
employment agreement or materially amend any existing employment agreement with
any such director, officer or key employee or except as may be required by law,
become obligated under any new employee benefit plan or pension plan;
(xii) except for any indebtedness incurred to the Principal Stockholders as an
interim financing arrangement, assume or incur indebtedness or act as guarantor
or, other than an extension of its lease with its current landlord specifically
approved by the Board of Directors, enter into any lease or create any
mortgages, liens or security interests on the Company's property other than
certain specified arrangements; or (xiii) fail to provide Mergerco with copies
of all filings made by the Company with the Commission or any other Governmental
Entity in connection with the Merger Agreement.
Additional Agreements
Article 7 of the Merger Agreement provides that as soon as
practicable, the Company, with the cooperation of Mergerco, will prepare and
file with SEC the Proxy Statement. The Company shall use commercially
reasonable efforts to respond to all SEC comments with respect to the Proxy
Statement and to cause the Proxy Statement to be mailed to the Company's
stockholders at the earliest practicable date. The Company will, as soon
-42-
as practicable, use commercially reasonable efforts to duly call, give notice
of, convene and hold the Company Stockholders Meeting for the purpose of
approving the Merger Agreement and the Merger.
Under Section 7.2 of the Merger Agreement, from time to time, as and
when required by the Surviving Corporation or by its successors or assigns,
there shall be executed and delivered on behalf of the Company such deeds and
other instruments, and there shall be taken or caused to be taken by all such
further and other action, as shall be appropriate, advisable or necessary in
order to vest, perfect or confirm, or record or otherwise, in the Surviving
Corporation the title to and possession of all property interest, assets,
rights, privileges, immunities, powers, franchises and authority of the Company
and Mergerco, and otherwise to carry out the purposes of these resolutions. The
officers and directors of the Surviving Corporation are fully authorized in the
name and on behalf of the Company and Mergerco or otherwise, to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
In addition, under Section 7.3 of the Merger Agreement, the Company
will take such commercially reasonable steps as are appropriate, including the
giving of required notices, to preserve its rights under the Company Agreements
(as defined in the Merger Agreement) and to ensure that such rights will be
transferred to the Surviving Corporation.
Section 7.5 of the Merger Agreement provides that, until the Effective
time, Mergerco will use commercially reasonable efforts to maintain the
confidentiality and not disclose to any person or entity, other than its
employees, agents, attorneys and financial advisors who are participating in the
Merger, and will not use, other than in connection with the Agreement, any
proprietary and confidential information of the Company; provided, however,
Mergerco may make such disclosures if and to the extent required by applicable
law, legal process or other regulatory requirements. In the event that the
Merger is not consummated and the Merger Agreement is terminated, Mergerco
agrees to keep confidential all Confidential Information for a period of two (2)
years after such termination.
Indemnification
Article 8 of the Merger Agreement provides that the Surviving
Corporation will indemnify and hold harmless the present and former officers,
employees and agents of the Company to the extent provided in its charter, codes
of regulation or By-laws, by agreement or otherwise in effect. Notwithstanding
the foregoing, the Surviving Corporation will have no obligation to indemnify a
present or former director, officer, employee or agent of the Company against
any loss, cost, liability or expense arising out of or in connection with any
action or claim asserted by Surviving Corporation against such director,
officer, employee or agent for fraud, provided that Surviving Corporation
prevails in such action or claim. The indemnification provisions of the Merger
Agreement are binding on any successor entity to the Surviving Corporation with
respect to any action or omission occurring prior to the Effective Time and will
not amend, reduce or limit the rights of indemnity afforded to them or the
ability of Surviving corporation to indemnify them, nor hinder, delay or make
more difficult the exercise of such rights of indemnity.
Right to Solicit Alternative Proposals
Section 7 of the Merger Agreement provides that, from and after the
date thereof until the Closing Date, Mergerco grants the Company and any of its
officers, directors, employees, representatives, agents or affiliates
(including, without limitation, any investment banker, attorney or accountant
retained by the Company), the right to, directly or indirectly, initiate,
solicit and encourage (including by way of furnishing non-public information or
assistance), or take any other action to facilitate, any inquiries or the making
of any proposal as an alternative to the Merger (as defined in the Merger
Agreement, an "Alternative Proposal"), or enter into or maintain or continue
-43-
discussions or negotiate with any person or entity in furtherance of such
inquiries to obtain an Alternative Proposal or agree to or endorse any
Alternative Proposal, or authorize or permit any of its officers, directors or
employees or any investment banker, financial advisor, attorney, accountant or
other representative to take any such action.
Conditions to Consummation of the Merger
The respective obligations of the Company, on the one hand, and
Mergerco, on the other hand, to consummate the Merger are set forth in Article 5
of the Merger Agreement and are subject to the satisfaction or waiver (except
for stockholder approval), at or prior to the Closing Date, of the following
conditions, among others: (a) approval and adoption of the Merger Agreement and
the Merger by the holders of a majority of the outstanding Common Shares at the
Meeting; (b) the absence of any claim, action, suit, proceeding, arbitration or
litigation which has been threatened to be filed, has been filed or is
proceeding which has arisen in whole or in part out of, or pertaining to the
approval of the Board of Directors of either party of the Agreement and the
transactions contemplated hereby, the negotiation, execution or delivery of this
Agreement, the performance of obligations hereunder or the consummation of the
transactions contemplated hereby; (c) the absence of any statute, rule,
regulation, executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) enacted, issued, promulgated, enforced or
entered prohibiting or restricting the consummation of the Merger; (d) the
receipt of SEC clearance of the Proxy Statement, all state securities laws and
"Blue Sky" permits and other necessary authorizations, consents and approvals of
governmental authorities; (e) the recommendations of the Company's Board of
Directors that the Company's stockholders approve the Merger or the opinion of
TM Capital to the effect that the Merger Consideration is fair to the Company's
stockholders, from a financial point of view, shall not have been withdrawn; (f)
the performance of and compliance with, in all material respects, all agreements
and obligations contained in the Merger Agreement and required to be performed
or complied with at or prior to the Effective Time by the respective parties to
the Merger Agreement; (g) the material truth and correctness of all
representations and warranties of the parties to the Merger Agreement; (h) the
furnishing of officers' certificates as to the matters covered in clauses (f)
and (g) above; (i) the holders of less than 10% of the Common Shares entitled to
vote on the Merger Proposal exercise their dissenters' rights; (j) the holders
of outstanding options and warrants agree in writing to the cancellation of such
options and warrants solely for the consideration set forth in the Merger
Agreement.
Under Section 5.2 of the Merger Agreement, the obligation of Mergerco
to consummate the Merger is further subject to the satisfaction or waiver of the
following conditions, among others: (a) the Company shall have carried on its
business, between the date of the Agreement and the Closing Date, in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted and from and after February 2, 1996, there shall not be any adverse
change to the Company's business operations or financial condition which has
resulted in a Material Adverse Effect with respect to the Company (other than
adverse changes consistent with events occurring in 1995); (b) the Company shall
have obtained and delivered evidence to Mergerco of all material third party
consents and approvals necessary, proper and advisable to consummate the Merger
and to enable the Surviving Corporation to continue to carry on the business of
the Company as it is presently being conduct; and (c) the holders of less than a
majority of the Common Shares owned by unaffiliated shareholders vote against
the Merger.
Termination
Under Section 9 of the Merger Agreement, the Merger Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time, whether before or after approval of the matters presented in connection
with the Merger by the Stockholders of the Company or Mergerco by: (a) by
either the Company or Mergerco if either: (i) the Merger Agreement and the
Merger fail to receive the requisite vote for approval and adoption by the
stockholders of the Company at the Company's Stockholders Meeting or (ii) the
holders of 10% of the Common Shares entitled to vote on the Merger Proposal
exercise their dissenters' rights; (b) by mutual written consent of the Company
and Mergerco, if authorized or taken by mutual action of their respective Boards
-44-
of Directors; (c) either the Company or Mergerco (i) if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of the other party, which breach has not been cured within five (5)
business days following receipt by the breaching party of notice of such breach,
or (ii) if a claim, action, suit, proceeding, arbitration or litigation has been
threatened to be filed, has been filed or is proceeding which has arisen in
whole or in part out of, or pertaining to the approval of the Board of Directors
of this Agreement or the transactions contemplated hereby, the negotiation,
execution, or delivery of this Agreement, the performance of obligations
hereunder or the consummation of the transaction hereby; (d) either the Company
or Mergerco, so long as such party has not breached its obligations under the
Merger Agreement, if the Merger shall not have been consummated on or before
June 30, 1996; provided that such right to terminate the Merger Agreement is not
available to any party whose failure to fulfill any obligation under the Merger
Agreement has been the cause of or resulted in the failure of the Merger to
occur on or before such date; or (e) by the Company, if the Board of Directors
of the Company in the good faith exercise of its judgment reasonably determines
after consultation with and based upon the advice of independent legal counsel
to cause the Company to enter into an agreement regarding the Alternative
Proposal because such action is reasonably necessary for the Board of Directors
of the Company to comply with its fiduciary duties to its Stockholders under
applicable law. In the event of termination of the Merger Agreement by either
the Company or Mergerco as provided therein, the Merger Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of Mergerco or the Company or their respective affiliates, officers, directors
or shareholders, except as provided in the Merger Agreement.
Fees and Expenses
Under Section 7.4 of the Merger Agreement, if the Merger is not
consummated, all fees and expenses related to the consummation of the
transactions contemplated by the Merger (including attorneys' and consultants'
fees and expenses) incurred by each of the parties to the Merger Agreement shall
be borne by the party incurring such fees and expenses. If the Merger is
consummated, all such fees and expenses will be paid by the Surviving
Corporation from the funds provided by the Principal Stockholders to Mergerco or
the Company for such purpose, as discussed in "SPECIAL FACTORS--Estimated Fees
and Expenses; Sources of Funds."
Amendments
Section 9.2 of the Merger Agreement provides that any provision of the
Merger Agreement may be, at any time prior to the Effective Time: (i) waived by
the party benefitted by the provision or by both parties by a writing executed
by an executive officer of such party, or (ii) amended or modified at any time
(including the structure of the transaction) by an agreement in writing between
the Company and Mergerco approved by their respective Boards of Directors.
-45-
MARKET PRICE AND STOCKHOLDER INFORMATION
The Common Shares are traded over-the-counter under the symbol "MEGI,"
with market-makers submitting quotations in the so-called "pink sheets," and
through The Nasdaq Stock Market, Inc.'s automated OTC Bulletin Board. The
Common Shares began trading on the Nasdaq Stock Market after its IPO was
consummated in September 1989. The table below sets forth, for the calendar
quarters indicated, the reported high and low bid information for the Common
Shares, which represent quotations in the over-the-counter market as compiled by
the National Quotation Bureau, Inc., with respect to the first three quarters of
fiscal 1994, and the OTC Bulletin Board, with respect to the remainder of the
information presented below. The quotations reflect inter-dealer prices without
retail mark-ups, mark-downs or commissions and may not necessarily represent
actual transactions.
Bid
------------
High Low
----- -----
Fiscal 1994
First Quarter................................. $.344 $.063
Second Quarter................................ .260 .063
Third Quarter................................. .270 .010
Fourth Quarter................................ .130 .065
Fiscal 1995
First Quarter................................. $.240 $.130
Second Quarter................................ .220 .125
Third Quarter................................. .190 .100
Fourth Quarter................................ .375 .100
Fiscal 1996
First Quarter................................. $.344 $.100
Second Quarter................................ .13 .020
Third Quarter................................. .030 .020
Fourth Quarter (through May 5)................ .04 .03
On March 18, 1996, the last full trading day prior to the execution of
the Merger Agreement and the public announcement thereof, the last reported
sales price quoted by the OTC Bulletin Board was $.035 per Common Share. On May
17, 1996, the most recent practicable date prior to the printing of this Proxy
Statement, the last reported sales price quoted by the OTC Bulletin Board was
$.04 per Common Share. As of such date, there were 423 holders of record of
Common Shares of the Company.
The Company has not paid any dividends on the Common Shares and does
not anticipate paying any cash dividends on the Common Shares in the foreseeable
future. The Company is prohibited under the terms of its bank line of credit
and other credit instruments from paying cash dividends or from purchasing or
retiring any of its capital stock.
The Company's stockholders are urged to obtain a current market
quotation for the Common Shares.
-46-
SELECTED FINANCIAL DATA
The following selected financial data of the Company for the five
years ended June 30, 1995 are derived from the financial statements of the
Company which have been audited by KPMG Peat Marwick LLP (with respect to 1995),
and Deloitte & Touche LLP (with respect to the previous four years), independent
auditors. Each of such auditor's report on the financial statements for the
year ended June 30, 1995 and 1994, respectively, which appear in the Company's
1995 Annual Report attached hereto as Exhibit B-1 to this Proxy Statement,
includes an explanatory paragraph because of substantial doubt about the
Company's ability to continue as a going concern, described in Note 12 to the
financial statements that are part of the 1995 Annual Report. The financial
data for the six month periods ended December 31, 1995 and 1994 are derived from
unaudited financial statements which appear in the Company's 1996 Second
Quarterly Report attached hereto as Exhibits E-1 and E-2. The unaudited
financial statements include all adjustments, consisting of normal recurring
accruals, which the Company considers necessary for a fair presentation of the
financial position and results of operations for these periods. Operating
results for the six months ended December 31, 1995 are not necessarily
indicative of the results that may be expected for the entire year ended June
30, 1996. The data should be read in conjunction with the financial statements,
related notes and other financial information include in such Exhibits to this
Proxy Statement.
Six Months Ended
Years Ended June 30, December 31,
------------------------------------------------------------------------- ---------------------
1991 1992 1993 1994 1995 1994 1995
---- ---- ---- ---- ---- ---- ----
(In thousands, except per share data) (unaudited)
Operating Data:
Revenues................. $2,962 $6,307 $6,133 $3,094 $4,014 $1,967 $1,716
Cost of revenues......... 2,493 4,963 4,487 2,492 4,191 1,362 1,663
Research and
development............. 124 165 295 381 352 170 200
Net loss................. (1,629) (613) (155) (1,107) (1,991) (155) (875)
Net loss per share
(1)..................... $(.18) $(.07) $(.01) $(.08) $(.14) (.01) (.06)
Weighted average
shares outstanding
(1)..................... 9,106,000 9,406,000 12,352,749 13,343,324 14,207,982 14,059,752 14,358,666
As of June 30, December 31,
------------------------------------------------------------------------- ---------------------
1991 1992 1993 1994 1995 1994 1995
---- ---- ---- ---- ---- ---- ----
Balance Sheet Data: (In thousands) (unaudited)
Current assets............... $2,421 $2,074 $2,504 $1,712 $1,873 $2,670 $1,019
Working capital
(deficiency)................ 856 427 522 (726) (2,833) (743) (3,653)
Net plant and equipment...... 129 131 164 126 274 72 224
Total assets................. 2,724 2,409 2,913 2,132 2 ,513 3,057 1,604
Current liabilities.......... 1,565 1,647 1,982 2,439 4,706 3,413 4,672
Long-term debt............... 1,750 1,700 230 0 0 0 0
Shareholders' equity
(deficit)................... (591) (938) 701 (307) (2,193) (356) (3,068)
Book value per share......... ($0.06) ($0.10) $0.05 ($0.02) ($0.15) ($0.05) ($0.21)
- ------------------------
(1) Net loss per share is computed on the basis described in Note 1 of "Notes
to Financial Statements."
-47-
CERTAIN INFORMATION REGARDING THE BUSINESS OF
THE COMPANY; RECENT DEVELOPMENTS
General Overview
The Company designs, develops, manufactures and services programmable,
flexible, single and multiple tool, automation work cells designed to help
customers improve manufacturing and materials handling processes by performing
more work, in less space, more safely than by traditional work methods. The
Company's product can improve productivity, increase product quality and
decrease costs in the manufacturing workplace.
The Company sells its automation workstations under the trade name
MEGA 2(R). The MEGA 1 was the Company's first product line and the lower cost,
less complex MEGA 2 group of workstations, the single automatic tool version of
which was introduced in 1993, is the Company's current product line.
The automation workstations have been primarily sold to clinical
laboratories for test tube handling, to the automotive industry for light
mechanical assembly and to the computer and telecommunications industries for
electronic circuit board assembly. For many customers, the Company has also
performed the additional custom manufacturing and engineering design to prepare
for one or more automation workstations for a specific assembly application.
Known as "integration," this additional process involves design and fabrication
of gripper tools, layout and assembly of various third-party provided conveyors
and parts-feeders, and software modifications to permit the automation
workstations to control the additional equipment.
The Company has placed approximately 120 automation workstations using
approximately 330 automatic assembly tools since deliveries began in 1988.
The Company's largest customers, accounting for 10% or more of the
Company's gross revenues for the period January 1, 1996 to May 5, 1996 were
SmithKline Beecham at 22%, Ford Motor Company at 13% and Progressive Tool &
Industry at 10%. For fiscal 1995, customers which accounted for 10% or more of
the Company's revenues were SmithKline Beecham at 31% and Northern Telecom at
15%. For fiscal 1994, customers which accounted for 10% or more of the
Company's revenues were Micron at 15%, TK Electronics at 15%, Northern Telecom
at 12%, Alcoa at 11% and Hewlett Packard at 11%.
The Company's business strategy is to offer the automation
workstations as specialized, integrated products that perform tasks demanding
accuracy, repeatability, speed, reliability and safety. The Company is focusing
its efforts on identifying and penetrating vertical market product applications,
like clinical laboratories, for automation workstations where there is a large
and continuous demand. Accordingly, the Company is creating systems which
incorporate proprietary software and hardware that minimize the need for
customer application engineering or integration. The application software is
generally developed collaboratively with targeted customers in selected markets
to make sure the needs of the market are met. The Company's products in many
cases are used by production personnel in an in-line manufacturing environment.
The automation workstations are flexible and therefore re-configurable. The
automation workstations application software provide easy-to-use, intuitive,
graphical user interfaces operating under Microsoft Windows(R).
The Company, a Delaware corporation, was founded on July 8, 1985 and
its IPO was consummated September 21, 1989. The Company operates on a fiscal
year which ends on June 30th.
-48-
Recent Financial Condition
The Company experienced significant and increasing net losses and
corresponding negative cash flows from operations in fiscal 1994 and 1995, and
continuing during the first half of fiscal 1996, primarily due to insufficient
revenues relative to cost and expense levels, a declining gross profit margin
and the completion of all long term contracts of the Company which has resulted
in a reduction of revenues recognized from the percentage of completion method.
Additionally, substantial costs have been incurred associated with the
development of the MEGA 2 system. At June 30, 1994 and 1995, and December 31,
1995, respectively, the Company had accumulated deficits of $6,102,000,
$8,093,000 and $8,968,000, respectively, current liabilities exceeded current
assets of the Company by approximately $726,000, $2,833,000 and $3,653,000,
respectively, and its total liabilities exceeded its total assets by $307,000,
$2,193,000 and $3,068,000, respectively. The Company's independent auditors
have issued qualified reports on the Company's audited financial statements for
the fiscal years ended June 30, 1994 and 1995 (as well as every year since
before the Company's IPO in 1989) to the effect that, based on the above
factors, there is substantial doubt about the Company's ability to continue as a
going concern. The Company has met its capital requirements for the past 25
months only as a result of frequent cash advances from the Principal
Stockholders to sustain its operations in the form of term loans which at May 8,
1996 aggregated $2,891,253.10 in principal and interest, and the Principal
Stockholders' personal guarantee of the Company's bank line of credit, of which
$1,700,000 is currently outstanding. For more detailed information respecting
the Company's business, operations and financial condition, see "SPECIAL FACTORS
- -- Background of the Merger" and the Company's 1995 Annual Report, 1996 First
Quarterly Report, 1996 Second Quarterly Report and 1996 Third Quarterly Report
attached hereto as Exhibits B-1, B-2, B-3, E-1, E-2 and G, respectively.
To improve the Company's financial results, prior management
implemented during fiscal 1995 a business strategy that focused primarily on
building specialized automation workstations for the healthcare industry and,
specifically, the completion of installations at one significant customer, a
major health care supplier. The Company determined not to continue supplying
large-scale integrated systems for diverse industries, as it decided that it did
not possess the human and financial resources to effectively and profitably
compete in building large-scale integrated systems in that marketplace at this
time. The success of this strategy was primarily dependent on (a) the Company's
ability to successfully complete the current installation at its significant
healthcare customer, gain additional orders in the short-term from this and
other customers, and use the success in serving this customer to develop
customer relationships with other leading healthcare industry companies, and (b)
the Company's ability to obtain sufficient working capital and financial
resources to execute its business plans. In February 1996, current management
of the Company subsequently determined to reverse this strategy because sales in
the healthcare industry did not materialize as expected and is now attempting to
focus again on serving a larger number of customers operating in multiple
industries.
Recent Developments
Management believes that the Company will be able to finance its
operations only if the Principal Stockholders continue to provide debt
financings to counter the Company's working capital shortages and negative cash
flows, and the Principal Stockholders and the Company's bank lender do not
exercise their rights to elect to accelerate the due dates of the Company's bank
line of credit and term loans. The Principal Stockholders have agreed to
continue to fund the Company's operations as a public company only until May 31,
1996. On March 18, 1996, the Company obtained an agreement for the extension of
its bank line of credit and its term loans until May 31, 1996. See "SPECIAL
FACTORS -- Background of the Merger" for a description of this indebtedness.
However, as a result of the Company's deteriorating financial and operational
condition and business prospects, the Principal Stockholders are no longer
willing to continue to risk their personal capital (including debt and equity
already invested) to sustain the Company's operations beyond such date unless a
substantial restructuring occurs and the
-49-
Company becomes a private company in which they own all of the equity interest
(other than certain warrants, employee stock options or stock appreciation
rights that may be granted by the Surviving Corporation to certain key employees
and consultants of the Company). These factors among others indicate that there
is substantial likelihood that the Company will be unable to continue to operate
as a viable economic entity, absent substantial additional financing and a
fundamental operational restructuring.
The Company has experienced delays in implementing its automated
system for its largest customer of 1995, SmithKline Beecham, a major healthcare
supplier, which has resulted in delays in the receipt of revenues from that
installation. In addition, additional orders the Company had anticipated from
such customer have not materialized because the installation program for such
customer's remaining sites has been deferred and currently remains on hold.
There can be no assurance that all or any of the additional deliveries that the
Company had anticipated will ever be realized. Moreover, the Company
experienced delays in 1995 with respect to implementation of another significant
project for a different customer.
It should be noted that the Company has made certain operational
changes since the beginning of February 1996, although it continues to suffer
from the above-described working capital shortage and negative cash flows and is
unable to sustain its operations without continued capital infusions from the
Principal Stockholders or other sources, the existence or availability of which
the Company is not aware.
Management of the Company does believe that in the event the Company
is able to obtain sufficient working capital and financial resources it has
several prospects which currently exist or could be developed and which may
potentially result in various business opportunities for the Company. Among
such potential opportunities, during fiscal 1995, the Company negotiated a
letter of intent with SmithKline Beecham to supply, for approximately $4.5
million, 100 MEGA 2 single tool systems for automating operations in five
regional clinical laboratories. The letter of intent contemplated delivery and
installation of the 100 MEGA 2 systems over a 22 month period commencing in
February, 1995. During fiscal 1995 the potential value of this order increased
to approximately $9.5 million upon the customer's request that the Company
provide engineering services and specialized versions for the original 100 MEGA
2 systems. The Company received a firm order late in the first quarter of
fiscal 1995 for delivery of 16 units for the first laboratory. The Company sold
the 16 systems and provided engineering services to the customer which generated
revenues of approximately $1.25 million in fiscal 1995 and $244,000 to date in
fiscal 1996. In the event that the customer is satisfied with the deliverables
for the first laboratory, the customer could release an additional order for its
second laboratory by the first quarter of fiscal 1997. Although no assurance
can be given, additional orders may follow. Due to uncertainty principally
related to its cost structure, the Company is not able to predict reliably at
this time the effect such additional orders would have on the Company's cash
flows, gross profit and net income. Moreover, management cautions that the
customer is not obligated to make additional requests and that the Company is
only one of several vendors which is contributing to the project and further
orders are subject to the customer's satisfaction with the entire project. In
the event that the customer does not purchase the balance of the 84 units, the
Company expects to receive an additional approximately $428,000, which
represents the recapture of revenue due to the loss of volume discounts offered
to such customer based upon the entire order of 100 units.
The Company has also been developing a product with Ford Motor Company
that supplies visual inspection systems for the automotive industry to customize
and integrate its workstations into a visual inspection product. In the event
that the Company is successful in engineering the product and if this customer
is satisfied with the product, it could request additional workstations to
integrate with its own product to sell to automotive plants. Such customer has
indicated that it may decide to resell this product to others in the automotive
industry. The Company is currently engineering the specifications of the
product.
-50-
In addition, the Company has developed a relationship with a potential
customer in the automobile industry which integrates layout and assembly of
various third-party provided conveyors and parts-feeders. The Company has
developed a high precision mechanical assembly product used in automotive
transmission assembly. A beta automation line has been developed which
integrates the Company's equipment with products from other vendors. However,
other vendors participating in the project have not completed their products to
be integrated into the line. Consequently, no testing of the entire line has
been performed.
Throughout this period, the Principal Stockholders, in conjunction
with Howard, Lawson, developed a set of implementation items which represent the
steps believed to be necessary, in addition to and assuming the infusion of
substantial capital, in order to effect a turnaround in the Company's business
within the 18-month time frame. These steps included the following: support
the Company's current customers; complete current projects in a manner so as to
promote customer satisfaction; contact certain past customers of the Company
with respect to whom recent contact had been limited; increase technical staff
to continue product enhancements and sales staff to address new potential
markets; recruit a permanent chief executive officer, possibly one with industry
specific experience; complete a cost engineering analysis of the Company's
products with the goal of significantly reducing the Company's costs in an
effort to increase gross margins; and develop an upgrade package to its existing
products for long-standing customers.
The Principal Stockholders believe that, if they invest an additional
$2,500,000 in capital and all of the above steps are effectively implemented,
and absent further material adverse changes to the Company's business, financial
condition and prospects, the Company could reach a break-even cash flow position
in approximately 18 months. However, the Principal Stockholders recognize that
there is no assurance, even if all of the above steps are implemented, that the
Company will ever be profitable or that they will realize a return on or of
their investment (including the additional capital to be contributed).
The Principal Stockholders have determined that the strategy described
above requires them to continue to fund the Company and to infuse additional
capital into the Company and as prudent businessmen, have concluded that they
are unwilling to pursue this strategy without the opportunity to obtain all of
the potential benefit, if any, of the equity in the Company.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth, as of May 9, 1996 (but without taking
into account the contribution of Common Shares to Mergerco by the Principal
Stockholders): (i) certain information concerning the ownership of the Common
Shares by, and the addresses of, each person who is known by the Company to own
of record or beneficially more than 5% of the outstanding Common Shares; and
(ii) certain information concerning ownership of the Common Shares by each of
the Company's directors and all directors and executive officers as a group,
based upon reports filed by such persons. Except as otherwise indicated, and
subject to the proxies and powers of attorneys referred to in Note 1, the
stockholders listed in the table have sole voting and investment power with
respect to the shares indicated.
Name and Address of Number of Shares Percentage
Beneficial Owners Beneficially Owned(1) of Class
- ------------------------------------ --------------------- -----------
Max Cooper (2)(3) 4,538,167 30.4%
c/o CLP Inc.
124 Summit Parkway
Birmingham, Alabama 35209
Cooper Investments (3) 1,900,000 12.8%
124 Summit Parkway
Birmingham, Alabama 35209
Tristram C. Colket, Jr. (4) 2,656,667 17.3%
500 Chester Field Parkway
Suite 170
Malvern, Pennsylvania 19355
Steven H. Pollack (5) 1,251,666 8.7%
c/o 51 Everett Drive, Building #B4
Lawrenceville, New Jersey 08648
Thomas D. Schmidt (6) 354,662 2.4%
51 Everett Drive, Building #B4
Lawrenceville, NJ 08648
All Directors and -- --%
Executive Officers as
a group (4 persons)
(2)(3)(4)(5)(6)
______________________
(1) Beneficial ownership is determined in accordance with Rule 13d-3(d)
promulgated by the SEC under the Securities and Exchange Act of 1934, as
amended. Common Shares issuable pursuant to options, warrants and
convertible securities, to the extent such securities are currently
exercisable or convertible, or are exercisable or convertible within 60
days of the Record Date, May 17, 1996, are treated as outstanding for
computing the percentage of the person holding such securities but are not
treated as outstanding for
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computing the percentage of any other person (irrespective of whether such
options or warrants are currently in-the-money).
(2) Includes: (i) 1,657,167 shares for which Mr. Cooper is the holder of
record; (ii) 72,000 shares issuable upon the exercise of a warrant dated
February 10, 1994; (iii) 509,000 shares held by certain individual
stockholders for which Mr. Cooper is Proxy and Attorney-in-fact or
otherwise has voting control; (iv) 1,900,000 shares beneficially owned by
Cooper Investments, an Alabama general partnership, of which Mr. Cooper is
a general partner, and (v) 400,000 shares owned by CLP, Inc., an Alabama
corporation of which Mr. Cooper is Chairman of the Board.
(3) Includes (i) 250,000 shares issuable upon the exercise of a warrant dated
December 16, 1994 and (ii) 250,000 shares issuable upon exercise of a
warrant dated February 23, 1995. These shares are also included in the
shares beneficially owned by Mr. Cooper.
(4) Includes: (i) 1,696,667 shares for which Mr. Colket is the holder of
record; (ii) 460,000 shares issuable upon exercise of a warrant dated
February 10, 1994; (iii) 250,000 shares issuable upon exercise of a warrant
dated December 16, 1994; and (iv) 250,000 shares issuable upon the exercise
of a warrant dated February 8, 1995.
(5) Includes 100,000 shares issuable upon the exercise of options exercisable
within 60 days of the Record Date.
(6) Includes 354,662 shares issuable upon exercise of options exercisable
within 60 days of the Record Date.
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PURCHASES OF COMMON SHARES BY AND OTHER
TRANSACTIONS WITH CERTAIN PERSONS
Neither the Company, the Principal Stockholders nor, to the Company's
knowledge, any of the officers or directors of the Company have purchased Common
Shares within sixty days of the date of this Proxy Statement.
On December 21, 1988, Mr. Cooper extended a term loan to the Company
in an amount not to exceed $1,000,000 to mature on December 31, 1992. On
September 14, 1992, the Company underwent a recapitalization pursuant to which
Mr. Cooper extended the maturity date on the term loan to December 31, 1993 and
entered into a subscription agreement with the Company to purchase up to
1,136,000 shares of Common Stock from July 1, 1992 to October 15, 1993. The
Principal Stockholders also converted certain 12% Convertible Debentures and
exercised certain warrants so that Mr. Cooper received 216,667 Common Shares and
Mr. Colket received 1,191,667 Common Shares.
On February 11, 1994, Mr. Colket provided the Company with an
additional $230,000 in the form of a new term loan. In connection with the new
term loan, Mr. Colket was issued a warrant to purchase 460,000 Common Shares of
the Company at $.55 per share. In consideration for extending the due date of
the original term loan and modifying the security interest in the Company's
assets to recognize the co-priority of the new term loan, Mr. Cooper was issued
a warrant to purchase 72,000 Common Shares of the Company exercisable at $.55
per share. No value was assigned to these warrants as the amount was not
material.
In August 1994, the Principal Stockholders each purchased 500,000
Common Shares. Net proceeds to the Company were $105,000.
On December 16, 1994, the original term loan and the new term loan
were amended to provide for an additional $500,000 in borrowings from the
Principal Stockholders. Additionally, the due dates of both term loans were
extended to June 30, 1995. Coincident with these amendments, the Company
borrowed an additional $250,000. In consideration for the December 1994
amendments, the Principal Stockholders were each issued warrants to purchase
500,000 shares of the Common Stock of the Company at $.50 per share. No value
was assigned to these warrants as the amount was not material. In February 1995,
the Company borrowed the remaining $250,000 available under the term loans. See
"SPECIAL FACTORS--Background of the Merger" for a description of this
indebtedness.
On March 3, 1995, the Company entered into an agreement with the
Principal Stockholders to provide an additional $800,000 in the form of short
term loans through June 30, 1995, and the Company borrowed this amount during
fiscal 1995. In addition, past due interest of approximately $120,000 under the
existing term loans was deferred until July 1, 1995. On May 12, 1995, the
Company obtained an agreement to extend the term loans until January 1, 1996.
Additionally, the May 12, 1995 agreement modified the lending terms of the March
3, 1995 agreement whereby the Principal Stockholders provided $700,000 in the
form of short term loans and deferred $100,000 of the past due interest on the
term loans to January 1, 1996. The May 12, 1995 agreement set forth the
parties intention to convert the $700,000 of loans and the $100,000 of
deferred past due interest to shares of the Company's capital stock on terms and
conditions to be agreed upon by the parties as soon as practicable. At the
present time, no agreements or commitments for consummating such transaction
exists, and they no longer have such intention. At December 31, 1995, there was
accrued interest of $107,178 on the term loans. In December 1995, the Company
borrowed $100,000 from Mr. Colket.
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Between January 1, 1996 and May 8, 1996, the Company has borrowed a
total of $785,000 from the Principal Stockholders. These term loans follow the
same terms and conditions as previously issued term loans. On March 18, 1996,
the Company obtained an agreement for the extension of all of the term loans
until May 31, 1996.
In addition, under agreements entered into on May 12, 1994, and
amended on August 18, 1994, the Company is a party to a Credit and Security
Agreement with the Bank secured by trade receivables and guaranteed by the
Principal Stockholders pursuant to a Guarantee Agreement. The line provides for
maximum borrowings of $1,700,000. Under the terms of the agreement, the
Principal Stockholders each guarantee one-half of the outstanding balance of the
line. The guarantee agreement imposes borrowing formula limitations of the sum
of 85% of trade receivables and 40% of the qualifying open order backlog. At
June 30 and December 31, 1995, the Company was not in compliance with these
borrowing limitation requirements. Borrowings under the line bear interest at
the prime rate (9% and 7.25% at June 30, 1995 and 1994, respectively).
Additionally, the Principal Stockholders each accrue quarterly fees calculated
at 1.5% annual rate on the average outstanding balance of the line.
At December 31, 1995, there was accrued interest of $13,069 on the
line. The guarantee fee expense which is included in interest expense was
$45,187 for the year ended June 30, 1995 and $25,710 for the six months ended
December 31, 1995. The expiration of the line has been extended by the lender
until May 31, 1996. At June 30 and December 31, 1995, the Company was not in
compliance with several financial covenants under the term loans and the credit
lines. As of May 17, 1996, such noncompliance was continuing. The lenders have
not exercised their rights to accelerate payment under the loans, but may do so
at anytime. See "SPECIAL FACTORS -- Background of the Merger" for a description
of this indebtedness.
On July 29, 1992, Ms. Rose Fivelson, Mr. Scott Fivelson, Mr. Ed
Jacobson, Ms. Sarah Jacobson, Mr. Kenneth Neuman, Ms. Shirley Neuman and Mr.
Stephen Neuman (the "Cooper Stockholders") each executed a Durable Power of
Attorney and Proxy appointing Mr. Cooper as each stockholder's Proxy and
Attorney-in-Fact to represent and to vote in his or her discretion all of his or
her Common Shares at any annual or special meeting of the Company's Stockholders
until December 31, 1997.
On September 4, 1992, Mr. Cooper, CLP, Inc., Cooper Investments, the
Cooper Stockholders, Dr. Pollack, Messrs. Colket and Schmidt and two former
officers and directors of the Company, Mr. Brian Hoffman and Mr. Alan Leiderman,
entered into a Shareholders Agreement, which provides, among other things, that,
beginning with the Company's 1992 Annual Meeting of Stockholders and continuing
for a five-year period, each party to the Shareholders Agreement will vote the
shares they currently or may hereafter control in favor of such actions as may
be necessary to elect and maintain in office on the Board of Directors, each of
(i) Mr. Cooper or one individual designated by Mr. Cooper; (ii) Mr. Colket or
one individual designated by Mr. Colket; (iii) each of Mr. Hoffman, Dr. Pollack
and Mr. Schmidt (the "Management Directors") or up to three individuals
designated by a majority of the Management Directors (or their respective
successors); (iv) Mr. Leiderman, if nominated by the Board of Directors; and (v)
one additional Independent Director, if nominated by the Board of Directors.
The Shareholders' Agreement was terminated on November 6, 1995 pursuant to a
Termination Agreement of that same date.
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TRANSACTION OF OTHER BUSINESS
The Board of Directors knows of no other matters which may be
presented at the Meeting, but if other matters do properly come before the
Meeting, it is intended that the persons named in the Proxy will vote, pursuant
to their discretionary authority, according to their best judgment in the
interest of the Company.
EXPERTS
The financial statements of the Company as of June 30, 1995 and for
the year then ended included in Exhibit B-1 to this Proxy Statement have been
audited by KPMG Peat Marwick LLP, independent public accountants, as indicated
in its report with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in accounting and auditing. The report of
KPMG Peat Marwick LLP covering the June 30, 1995 financial statements contains
an explanatory paragraph that states that the Company has incurred significant
net losses, is in default under certain borrowing agreements, is in a negative
working capital position and has a net shareholders' deficit at June 30, 1995,
all of which raise substantial doubt about the Company's ability to continue as
a going concern. The financial statements do not include any adjustments that
might result from the outcome of this uncertainty. The financial statements of
the Company as of June 30, 1994 and for each of the two years in the period then
ended included in Exhibit B to this Proxy Statement have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report (which
report includes an explanatory paragraph relating to the Company's ability to
continue as a going concern) with respect thereto, and have been so included in
reliance upon the report of such firm as given upon their authority experts in
accounting and auditing.
It is expected that representatives of KPMG Peat Marwick LLP will be
present at the Meeting, where they will have an opportunity to respond to
appropriate questions of stockholders and to make a statement if they so desire.
Change in and Disagreements with Accountants and Financial Disclosure
See Item 9 of Exhibit B-1 to this Proxy Statement for information
respecting the Company's change in auditors.
MISCELLANEOUS
If the Merger is not consummated for any reason, proposals of
stockholders intended to be presented at the 1996 Annual Meeting of Stockholders
must be received by the Company at its principal executive offices on or prior
to June 30, 1996, to be eligible for inclusion in the Company's Proxy Statement
and form of Proxy relating to that meeting. Stockholders should mail any
proposals by certified mail -- return receipt requested.
BY ORDER OF THE BOARD OF DIRECTORS
Thomas D. Schmidt,
Secretary
PLEASE COMPLETE AND RETURN YOUR PROXY CARD PROMPTLY IN THE ENCLOSED
ENVELOPE. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED STATES.
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