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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
GRIFFIN TECHNOLOGY INCORPORATED
(Name of subject company)
GRIFFIN TECHNOLOGY INCORPORATED
(Name of person(s) filing statement)
COMMON STOCK, PAR VALUE
$0.05 PER SHARE
(Title of class of securities)
398268 10 2
((CUSIP) number of class of securities)
ROBERT S. URLAND
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GRIFFIN TECHNOLOGY INCORPORATED
1133 CORPORATE DRIVE
FARMINGTON, NEW YORK 14425
(Name, address and telephone number of person authorized
to receive notice and communications on behalf of
the person(s) filing statement)
With a copy to:
JOHN C. PARTIGAN, ESQ.
NIXON, HARGRAVE, DEVANS & DOYLE LLP
CLINTON SQUARE
P.O. BOX 1051
ROCHESTER, NEW YORK 14603
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ITEM 1. SECURITY AND SUBJECT COMPANY.
The subject company is Griffin Technology Incorporated, a New York
corporation (the "Company"). The principal address of the executive offices of
the Company is 1133 Corporate Drive, Farmington, New York 14425. The title of
the class of equity securities to which the statement relates is the Company's
common stock, par value $0.05 per share (the "Shares").
ITEM 2. TENDER OFFER OF THE BIDDER.
This statement relates to the tender offer made by D-GT Acquisition,
Incorporated, a New York corporation ("Purchaser") and a wholly-owned subsidiary
of Diebold, Incorporated, a Ohio corporation ("Parent"), to purchase all of the
issued and outstanding Shares at a price of $7.75 per share, net to the seller
in cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated October 26, 1995 of Purchaser (the "Offer to Purchase") and the
related Letter of Transmittal (which together constitutes the "Offer"),
disclosed in a tender offer statement on Schedule 14D-1 filed with the
Securities and Exchange Commission on October 26, 1995 (the "Schedule 14D-1").
The Schedule 14D-1 states that the principal executive offices of Purchaser are
located at 5995 Mayfair Road, North Canton, Ohio 44720.
ITEM 3. IDENTITY AND BACKGROUND.
(a) The name and business address of the Company, which is the person
filing this statement, are set forth in Item 1 above.
(b) Except as described below or incorporated herein by reference as
provided below, to the knowledge of the Company, as of the date hereof there are
no material contracts, agreements, arrangements or understandings or any actual
or potential conflicts of interest between Company or its affiliates and (1) the
Company, its executive officers, directors or affiliates; or (2) Purchaser or
Parent or their executive officers, directors or affiliates.
Certain contracts, agreements, arrangements or understandings between the
Company and certain of its directors and executive officers are described on
page 3 of the Company's Proxy Statement dated October 11, 1995 (the "1995 Proxy
Statement"). A copy of such page of the 1995 Proxy Statement is filed herewith
as Exhibit 10 and is incorporated herein by reference.
THE AGREEMENT AND PLAN OF MERGER
The following is a summary of certain provisions of the Agreement and Plan
of Merger dated as of October 20, 1995 (the "Merger Agreement") by and among the
Company, Purchaser and Parent. The Merger Agreement is filed as Exhibit 1 to
this Schedule 14D-9 and is incorporated herein by reference. Such summary is
qualified in its entirety by reference to the Merger Agreement.
The Offer. The Merger Agreement provides for the making of the Offer by
the Purchaser. The obligation of Purchaser to accept for payment and pay for
shares tendered pursuant to the Offer is subject to the satisfaction of the
condition that at least two-thirds of the outstanding Shares have been validly
tendered pursuant to the Offer and not withdrawn (the "Minimum Condition") and
certain other conditions that are described in the following paragraph. The
Purchaser has agreed that, without the written consent of the Company, no change
in the Offer may be made which changes the form of consideration to be paid or
decreases the price per Share or the number of Shares sought in the Offer or
which imposes conditions to the Offer in addition to the Minimum Condition and
those conditions described in the following paragraph or which broadens the
scope of such conditions.
Certain Conditions to the Offer. Notwithstanding any other provisions of
the Offer, Purchaser shall not be required to accept for payment or pay for, and
may postpone the acceptance for payment of, or the payment for, any Shares, and
may terminate the Offer and not accept for payment or pay for any Shares, or,
subject to the terms of the Merger Agreement, amend the Offer if (i) immediately
prior to the expiration of the Offer (as it may be extended in accordance with
the Offer), the Minimum Condition shall not have been satisfied, (ii) any
applicable waiting period under the HSR Act shall not have expired or been
terminated prior to the
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expiration of the Offer, or (iii) at any time prior to the acceptance for
payment of Shares, Purchaser makes a determination (which shall be based on any
reasonable determination by the Parent or Purchaser made in good faith) that any
of the following conditions exist:
(a) there shall have been instituted or be pending any action,
proceeding, application, claim or counterclaim by any government or
governmental authority or agency, domestic or foreign, before any court or
governmental regulatory or administrative agency, authority or tribunal,
domestic or foreign, (i) challenging the acquisition by Parent or the
Purchaser of the Shares, seeking to restrain or prohibit the making or
consummation of the Offer or the Merger or seeking to obtain from Parent or
the Purchaser any damages that would result in a Material Adverse Effect on
the Company if such were assessed against the Company, (ii) seeking to
prohibit or materially limit the ownership or operation by Parent of the
Surviving Corporation of all or any material portion of the business or
assets of the Company or compel Parent or the Surviving Corporation to
dispose of or to hold separate all or any material portion of the business
or assets of the Company, or to impose any material limitation on the
ability of the Company or the Surviving Corporation to conduct such
business or own such assets, or (iii) seeking to impose material
limitations on the ability of Parent (or any other affiliate of Parent) to
acquire or hold or to exercise full rights of ownership of the Shares,
including but not limited to, the right to vote the Shares, purchased by
them on all matters properly presented to the stockholders of the Company;
or
(b) there shall be any statute, rule, regulation, judgment, order or
injunction enacted, promulgated, entered, enforced or deemed applicable to
the Offer, the Merger or the Merger Agreement, or any other action shall
have been taken by any government, governmental authority or court,
domestic or foreign, other than the routine application to the Offer or the
Merger of waiting periods under the HSR Act, that has, or has a substantial
likelihood of resulting in, any of the consequences referred to in clauses
(i) through (iii) of paragraph (a) above; or
(c) the Company shall have breached or failed to perform in any
material respect any of its obligations, covenants or agreements contained
in the Merger Agreement, or any of the representations and warranties of
the Company set forth in the Merger Agreement shall not have been true and
correct in any material respect when made or, except for any
representations and warranties made as of a specific date, shall have
ceased to be true and correct in any material respect as if made on and as
of the Expiration Date (or, in the case of representations and warranties
that are specifically qualified as to materiality, shall not have been true
and correct when made or shall have ceased to be true and correct on and as
of the Expiration Date); or
(d) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on the New York Stock Exchange,
Inc. (ii) the declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States (whether or not
mandatory), (iii) the commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the
United States and having a Material Adverse Effect on the Company or
materially adversely affecting (or materially delaying) the consummation of
the Offer, (iv) any limitation (whether or not mandatory), by any U.S.
governmental authority or agency on, or any other event that, in the
judgment of Parent, is substantially likely to materially adversely affect,
the extension of credit by banks or other financial institutions, or (v)
from the date of the Merger Agreement through the date of termination or
expiration of the Offer, a decline of at least 25% in the Standard & Poor's
500 Index; or
(e) prior to the purchase of Shares pursuant to the Offer, the Board
of Directors shall have withdrawn or modified (including by amendment of
the Schedule 14D-9) in a manner adverse to Parent its approval or
recommendation of the Offer, the Merger Agreement or the Merger or shall
have recommended another offer for the purchase of the Shares, which, in
the sole judgment of the Parent in any such case, and regardless of the
circumstances (including any action or omission by Parent) giving rise to
such condition, makes it inadvisable to proceed with such acceptance for
payment except where as a result of the Company's receipt of an unsolicited
acquisition proposal from a third party (A) the Company issues to its
stockholders a communication that contains only the statements permitted by
Rule
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14d-9(e) under the Exchange Act (and does not otherwise withdraw, modify or
amend its approval or recommendation of the transactions contemplated
hereby) and (B) within five business days of issuing such communications
the Company publicly reconfirms its approval and recommendation of the
transactions contemplated by the Offer and the Merger Agreement; or
(f) There shall have occurred since June 30, 1995, a change,
occurrence or circumstance in the Company's business having a Material
Adverse Effect thereon;
which, in the sole judgment of Purchaser in any such case, and regardless of the
circumstances (including any action or omission by Purchaser) giving rise to any
such condition, makes it inadvisable to proceed with such acceptance for
payment.
The Merger. The Merger Agreement provides that, following the purchase of
Shares pursuant to the Offer, the approval of the Merger Agreement by the
shareholders of the Company (if required) and the satisfaction or waiver of the
other conditions to the Merger, the Purchaser will be merged with and into the
Company. The Merger shall become effective at such time as a certificate of
merger is filed by the Department of State of the State of New York, or at such
later time as is specified in such certificate of merger (the "Effective Time").
As a result of the Merger, all of the properties, rights, privileges and
franchises of the Company and the Purchaser shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and the
Purchaser shall become the debts, liabilities and duties of the Surviving
Corporation.
At the Effective Time, by virtue of the Merger (i) each issued and
outstanding Share held in the treasury of the Company, or by Parent, the
Purchaser or any other subsidiary of Parent shall be cancelled, and no payment
shall be made with respect thereto; (ii) each share of common stock of the
Purchaser then outstanding shall be converted into and become one share of
common stock of the Surviving Corporation; and (iii) each Share outstanding
immediately prior to the Effective Time shall, except as otherwise provided in
(i) above and except for Shares held by shareholders exercising appraisal rights
pursuant to Sections 623 and 910 of the New York Business Corporation Law (the
"NYBCL") ("Dissenting Shares"), be converted into the right to receive $7.75 in
cash or any higher price per Share that may be paid pursuant to the Offer,
without interest.
The Merger Agreement provides that the certificate of incorporation and
by-laws of the Company at the Effective Time will be the certificate of
incorporation of the Surviving Corporation. The Merger Agreement also provides
that the directors of the Purchaser at the Effective Time will be the directors
of the Surviving Corporation and the officers of the Company at the Effective
Time will be the officers of the Surviving Corporation.
Recommendation. The Board of Directors has (i) determined that the Merger
Agreement and the transactions contemplated thereby, including the Offer and the
Merger, are fair to, and in the best interests of shareholders of the Company,
(ii) approved the Merger Agreement and the transactions contemplated thereby,
including the Offer, the Merger and the Tender Agreements and the transactions
contemplated thereby, and (iii) resolved to recommend acceptance of the Offer
and approval and adoption of the Merger Agreement and the Merger by the
Company's shareholders. This recommendation of the Board of Directors may be
withdrawn, modified or amended if the Board by a majority vote determines in its
good faith judgment, based as to legal matters on the written opinion of legal
counsel, that such withdrawal, amendment or modification is required by the
Board in the exercise of its fiduciary duties. Any such withdrawal, modification
or amendment may give rise to certain termination rights on the part of Parent
and the Purchaser, as described below.
Interim Agreements of Parent, Purchaser and the Company. Pursuant to the
Merger Agreement, the Company has covenanted and agreed that, during the period
from the date of the Merger Agreement to the Effective Time, the Company will
conduct its business and operations according to its ordinary and usual course
of business consistent with past practice. Pursuant to the Merger Agreement,
without limiting the generality of the foregoing, and except as otherwise
expressly provided in the Merger Agreement, prior to the Effective Time, the
Company will not, without the prior written consent of Purchaser: (a) amend its
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certificate of incorporation or by-laws; (b) (i) create, incur or assume any
indebtedness for money borrowed, including obligations in respect of capital
leases, except (A) purchase money mortgages granted in connection with past
practice, (B) indebtedness for borrowed money incurred in the ordinary course of
business not aggregating in excess of $8.0 million outstanding at any time under
its existing Fifth Amended and Restated Revolving Credit and Term Loan Agreement
with The Chase Manhattan Bank, N.A. as the same may be amended from time to time
("Credit Agreement"), provided that the proceeds thereof are not distributed to
the shareholders of the Company; or (ii) assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently or otherwise) for
the obligations of any other person (except the Company); provided, however,
that the Company may endorse negotiable instruments in the ordinary course of
business consistent with past practice; (c) declare, set aside or pay any
dividend or other distribution (whether in cash, stock or property or any
combination thereof) in respect of the Shares; (d) issue, sell, grant, purchase
or redeem, or issue or sell any securities convertible into, or options with
respect to, or warrants to purchase or rights to subscribe to, or subdivide or
in any way reclassify, any Shares, except in any case above pursuant to
outstanding Company stock purchase rights; (e)(i) increase the rate of
compensation payable or to become payable by the Company to its directors,
officers or employees, whether by salary or bonus, by more than four percent per
person on an annual basis for directors and officers of the Company and by more
than four and one-half percent in the aggregate for all other employees of the
Company (excluding commission-only compensation, the rate of which shall not be
increased); or (ii) increase the rate or term of, or otherwise alter, any bonus,
insurance, pension or other employee benefit plan, payment or arrangement made
to, for or with any such directors, officers or employees; (f) enter into any
agreement, commitment or transactions (other than certain borrowings described
above), except agreements, commitments or transactions in the ordinary course of
business consistent with past practice; (g) sell, transfer, mortgage, pledge,
grant any security interest or permit the imposition of any lien or other
encumbrance on any asset other than in the ordinary course of business
consistent with past practice and except pursuant to the Credit Agreement; (h)
waive any right under certain contracts and other agreements if such waiver
would have a Material Adverse Effect; (i) make any material change in its
accounting methods or practices or make any material change in depreciation or
amortization policies or rates adopted by it for accounting purposes or, other
than normal writedowns or writeoffs consistent with past practices, make any
writedowns of inventory or writeoffs of notes or accounts receivable; (j) make
any loan or advance to any of its shareholders, officers, directors, employees
(other than advances to field sales personnel, vacation advances, relocation
advances and travel advances in each case made in the ordinary course of
business in a manner consistent with past practice), or make any other loan or
advance to any other person or group otherwise than in the ordinary course of
business consistent with past practice; (k) terminate or fail to renew, where
such renewal is at the Company's option, any contract or other agreement
(excluding customer leases or contracts), the termination or failure of which to
renew would have a Material Adverse Effect; (l) enter into any collective
bargaining agreement; (m) make any addition to or modification of the Company's
employee benefits plans; (n) take, agree to take, or knowingly permit to be
taken any action, or do or, with respect to anything within the Company's
control, knowingly permit to be done anything in the conduct of its business
which would be contrary to or in breach of any of the terms or provisions of the
Merger Agreement, or which would cause any of the representations of the Company
to be or become untrue in any material respect; or (o) agree to do any of the
foregoing.
The Merger Agreement provides that, when used in connection with a
corporation, the term "Material Adverse Effect" means a material adverse effect
or the business, assets, prospects, financial condition or results of operations
of such corporation or on the ability of the corporation to consummate the
transactions contemplated by the Merger Agreement.
Other Agreements of Parent, the Purchaser and the Company. In the Merger
Agreement, the Company, its affiliates and their respective officers, directors,
employees, representatives and agents have agreed that they shall immediately
cease any existing discussions or negotiations, if any, with any parties
conducted heretofore with respect to any acquisition of all or any material
portion of the assets of, or any equity interest in, the Company or any business
combination with the Company, subject to certain exceptions. The Company may,
directly or indirectly, furnish information and access, in each case only in
response to unsolicited requests therefor, to any corporation, partnership,
person or other entity or group pursuant to confidentiality agreements that do
not prohibit or restrict disclosure of any matter to Purchaser, and may
participate in discussions and
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negotiate with such entity or group concerning any merger, sale of assets, sale
of shares of capital stock or similar transaction involving the Company or any
division of the Company, only if such entity or group has submitted a written
proposal to the Board relating to any such transaction and the Board by a
majority vote determines in its good faith judgment, based as to legal matters
on the written opinion of legal counsel, that failing to take such action would
constitute a breach of the Board's fiduciary obligations. The Board shall
provide a copy of any such written proposal to Parent or Purchaser promptly
after receipt thereof and thereafter keep Parent and Purchaser promptly advised
of any development with respect thereto. Except as set forth above, neither the
Company or any of its affiliates, nor any of its or their respective officers,
directors, employees, representatives or agents shall directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations with,
or provide any information to, any corporation, partnership, person or other
entity or group (other than Parent and Purchaser, any affiliate or associate of
Parent and Purchaser or any designees of Parent and Purchaser) concerning any
merger, sale of assets, sale of shares of capital stock or similar transaction
involving the Company or any substantial portion of the assets of the Company or
take any other action to facilitate the making of a proposal that constitutes or
could reasonably be expected to lead to an acquisition proposal, provided,
however, that nothing in the Merger Agreement shall prevent the Board from
approving or recommending to the Company's shareholders any unsolicited tender
offer or exchange offer by a third party as contemplated by Rules 14d-9 and
14e-2 promulgated under the Exchange Act in the event any unsolicited takeover
proposal shall have been made by a third party, if, in the good faith judgment
of the Board, based as to legal matters on the written opinion of legal counsel,
that withdrawing or modifying such approval or recommendation is required under
applicable law in the proper discharge of its fiduciary duties.
Pursuant to the Merger Agreement, between the date hereof and the Effective
Time, the Company will give Parent and Purchaser and their authorized
representatives reasonable access to all personnel, books, records, plants,
offices, and other facilities and properties of the Company, will permit Parent
and Purchaser to make such inspections as Parent and Purchaser may reasonably
request and will cause the Company's officers to furnish Purchaser with such
financial and operating data and other information with respect to the business
and properties of the Company as Purchaser may from time to time reasonably
request; provided, however, that until such time as the Parent and/or its
affiliates are beneficial owners of a majority of the outstanding Shares, any
such activities prior to the purchase by the Purchaser of Shares pursuant to the
Offer shall be for the purpose of verifying the accuracy of representations and
warranties of the Company and compliance by the Company with its covenants
contained in the Merger Agreement.
The Merger Agreement provides that promptly upon the purchase of Shares by
Purchaser, the Purchaser shall be entitled to designate the number of directors,
rounded up to the next whole number, on the Company's Board of Directors that
equals the product of (i) the total number of directors on the Board of
Directors (giving effect to the election of any additional directors pursuant to
this paragraph) and (ii) the percentage that the number of Shares owned by the
Purchaser (including Shares accepted for payment) bears to the total number of
Shares outstanding on a fully-diluted basis, and the Company shall use its best
efforts to cause the Purchaser's designees to be elected or appointed to the
Board of Directors, including, without limitation, increasing the number of
directors, and seeking and accepting resignations of its incumbent directors.
Notwithstanding the foregoing, the Company has agreed to use its best efforts to
ensure that three of the current members of the Board who are not officers or
employees of the Company remain members of the Board until the Effective Time.
Pursuant to the Merger Agreement, the Company shall cause a meeting of its
shareholders (the "Company Shareholder Meeting") to be duly called and held, at
the Parent's request and in accordance with applicable law, for the purposes of
voting on the approval and adoption of the Merger Agreement and the Merger.
The Merger Agreement provides that the Company will promptly prepare and
file with the Commission under the Exchange Act a proxy statement relating to
the Company Shareholder Meeting (the "Proxy Statement"). The Company has agreed,
subject to the fiduciary duties of its Board of Directors, based as to legal
matters on the written opinion of legal counsel, to use all reasonable efforts
to obtain the necessary approvals by its shareholders of the Merger Agreement
and the transactions contemplated thereby. Parent has
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agreed to vote and to cause its affiliates (including, without limitation, the
Purchaser) to vote all Shares owned by them in favor of adoption of the Merger
Agreement. Notwithstanding the foregoing, in the event that Purchaser acquires
at least 90% of the outstanding Shares and Purchaser so requests, the Parent,
Purchaser and the Company will take all actions necessary and appropriate to
cause the Merger to become effective without a meeting of the shareholders of
the Company in accordance with Section 905 of the NYBCL.
Purchaser has agreed that all rights to indemnification now existing in
favor of the directors and officers of the Company as provided in the Company's
by-laws as of the date of the Merger Agreement shall survive the Merger and
shall continue in full force and effect for a period of six years. For a period
of six years after the Effective Time, Purchaser has agreed to indemnify and
hold harmless, to the maximum extent permitted by the NYBCL, each of the present
or former directors and officers of the Company and advance expenses in
connection with such indemnification. In addition, Purchaser has agreed that for
three years after the Effective Time, Purchaser will cause the Surviving
Corporation to use its best reasonable efforts to provide officers' and
directors' liability insurance in respect of acts or omissions occurring prior
to the Effective Time covering each such person currently covered by the
Company's officers' and directors' liability insurance policy on terms with
respect to coverage and amount no less favorable than those of such policy in
effect on the date of the Merger Agreement, except that the Surviving
Corporation shall not be required to pay annual premiums in excess of $60,000
for one year after the Effective Time and $60,000 thereafter.
The Merger Agreement provides that the Company, the Purchaser and Parent
will each use their best efforts to consummate the transactions contemplated by
the Merger Agreement.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties of the parties thereto including,
without limitation, representations by the Company as to undisclosed
liabilities, certain changes or events concerning it businesses, compliance with
applicable law, employee benefit plans, litigation and environmental
liabilities. In addition, the Company represented to Parent and the Purchaser
that the Board, at a meeting duly called and held, has (i) determined that the
Merger Agreement and the transactions contemplated thereby, including the Offer
and the Merger, are fair to, and in the best interests of, the Company and the
shareholders of the Company, and (ii) approved the Merger Agreement and the
transactions contemplated thereby, including the Offer and the Merger, in all
respects and that such approval constitutes approval of the Offer, the Merger
Agreement and the Merger for purposes of Sections 902 and 912 of the NYBCL and
similar statutes of other states that might be deemed applicable.
Conditions to the Merger. The obligations of each of the Parent, the
Purchaser and the Company to effect the Merger are subject to the satisfaction
of certain conditions, including (i) the Purchaser shall have accepted for
payment Shares tendered pursuant to the Offer; (ii) the Merger Agreement shall
have been adopted by the requisite vote, if any is required, of the shareholders
of the Company in accordance with applicable law; (iii) no order, statute, rule,
regulation, executive order, stay, decree, judgment or injunction shall have
been enacted, entered, issued, promulgated or enforced by any court or
governmental authority which prohibits or restricts the consummation of the
Merger; and (iv) any waiting period applicable to the Merger under the HSR Act
shall have terminated or expired. The obligation of the Purchaser and the Parent
to effect the Merger is further subject to satisfaction of the conditions,
unless waived by the Parent, that (i) the Company shall have performed and
complied in all material respects with the agreements and obligations contained
in the Merger Agreement required to be performed and complied with by it at or
prior to the Effective Time, (ii) all outstanding stock options of the Company
shall have been surrendered to the Company as provided in the Merger Agreement
and cancelled by the Company, and (iii) the Parent shall have received a comfort
letter, in form and substance reasonably requested by the Parent, from Price
Waterhouse LLP regarding the updating of the Company's most recent financial
statements. The obligation of the Company to effect the Merger is further
subject to the Parent and the Purchaser having performed and complied in all
material respects with the agreements and obligations contained in the Merger
Agreement required to be performed and complied with by each of them at or prior
to the Effective Time.
Termination. The Merger Agreement may be terminated: (a) by mutual written
consent of Parent, Purchaser and the Company; (b) by Parent and Purchaser or the
Company if any court of competent jurisdiction in the United States or other
United States governmental body shall have issued a final order,
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decree or ruling or taken any other final action restraining, enjoining or
otherwise prohibiting the Merger and such order, decree, ruling or other action
shall have become nonappealable; (c) by Parent and Purchaser if due to an
occurrence or circumstance which results in a failure to satisfy any of the
conditions to the Offer set forth herein, Purchaser shall have (i) failed to
commence the Offer within five days following the initial public announcement of
the Offer, (ii) terminated the Offer, or (iii) failed to pay for Shares pursuant
to the Offer within 75 days following the commencement of the Offer; (d) by the
Company if (i) there shall not have been a material breach of any
representation, warranty, covenant or agreement on the part of the Company and
the Purchaser shall have (A) failed to commence the Offer within five days
following the initial public announcement of the Offer, (B) terminated the
Offer, or (C) failed to pay for Shares pursuant to the Offer within 75 days
following the commencement of the Offer, or (ii) prior to the purchase of Shares
pursuant to the Offer, a corporation, partnership, person or other entity or
group shall have made a bona fide offer that the Board by a majority vote
determines in its good faith judgment and in the exercise of its fiduciary
duties, based as to legal matters on the written opinion of legal counsel, is
more favorable to the Company's shareholders than the Offer and the Merger,
provided that such termination under this clause (ii) shall not be effective
until payment of the Termination Fee described below; (e) by Parent and
Purchaser prior to the purchase of Shares pursuant to the Offer if (i) there
shall have been a breach of any representation or warranty on the part of the
Company having a Material Adverse Effect on the Company or materially adversely
affecting (or materially delaying) the consummation of the Offer, (ii) there
shall have been a breach of any covenant or agreement on the part of the Company
resulting in a Material Adverse Effect on the Company or materially adversely
affecting (or materially delaying) the consummation of the Offer, (iii) the
Company shall engage in negotiations with any entity or group (other than Parent
or Purchaser) that has proposed a Third Party Acquisition (as defined below),
(iv) the Board shall have withdrawn or modified (including by amendment of the
Schedule 14D-9) in a manner adverse to Purchaser its approval or recommendation
of the Offer, the Merger Agreement or the Merger or shall have recommended
another offer, or shall have adopted any resolution to effect any of the
foregoing, or (v) the Minimum Condition shall not have satisfied by the
expiration date of the Offer and on or prior to such date an entity or group
(other than Parent or Purchaser) shall have made and not withdrawn a proposal
with respect to a Third Party Acquisition; or (f) by the Company if (i) there
shall have been a breach of any representation or warranty on the part of Parent
or Purchaser which materially adversely affects (or materially delays) the
consummation of the Offer, or (ii) there shall have been a material breach of
any covenant or agreement on the part of Parent or Purchaser and which
materially adversely affects (or materially delays) the consummation of the
Offer.
Termination Fee and Expenses. In the event that Parent and Purchaser
terminate the Merger Agreement pursuant to clause (d)(ii) of the preceding
paragraph, the Company shall reimburse Parent, Purchaser and their affiliates
(not later than one business day after submission of statements therefor) for
all actual documented out-of-pocket fees and expenses actually and reasonably
incurred by any of them or on their behalf in connection with the Offer and the
Merger and the consummation of all transactions contemplated by the Merger
Agreement (including, without limitation, fees payable to financing sources,
investment bankers, counsel to any of the foregoing, and accountants and filing
fees and printing costs) (the "Expense Reimbursement Amount"). In the event that
Parent and Purchaser terminate the Merger Agreement pursuant to clause (c) of
the preceding paragraph (but only if such termination is based on a failure to
satisfy clause (i) or clause (iii)(c), (e) or (f) of Annex A of the Merger
Agreement) or clause (e) of the preceding paragraph, (i) the Company shall
reimburse the Parent, the Purchaser or their affiliates for up to $250,000 of
the Expense Reimbursement Amount and (ii) such amount shall be paid to Parent,
the Purchaser or their affiliates, as directed by the Parent, together with
interest thereon at the rate of 8% per annum, in 24 consecutive monthly
installments of an amount equal to 1/24 of the lesser of $250,000 or the Expense
Reimbursement Amount, commencing on the first business day of the month
immediately following the month in which the Parent, the Purchaser or such
affiliate(s) became entitled to receive such amount. Pursuant to the Merger
Agreement, in the event the Company terminates the Merger Agreement pursuant to
clause (d)(ii) of the preceding paragraph or in the event Parent and Purchaser
terminate the Merger Agreement pursuant to clause (e)(ii), (iii), (iv) or (v) of
the preceding paragraph, the Company shall pay to Parent the amount of $1
million as liquidated damages immediately upon such a termination (less the
aggregate amount paid to the Purchaser by the shareholders of the Company who
are parties to the Tender
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Agreement described below) (the "Termination Fee") as well as all amounts to
which Parent and Purchaser would be entitled pursuant to this paragraph.
"Third Party Acquisition" means the occurrence of any of the following
events: (i) the acquisition of the Company by merger or otherwise by any person
(which includes a "person" as such term is defined in Section 13(d)(3) of the
Exchange Act) or entity other than Parent, Purchaser or any affiliate thereof (a
"Third Party"); (ii) the acquisition by Third Party of 30% or more of the total
assets of the Company taken as a whole; (iii) the acquisition by Third Party of
30% or more of the outstanding Shares; (iv) the adoption by the Company of a
plan of liquidation or the declaration or payment of an extraordinary dividend;
or (v) the repurchase by the Company of more than 20% of the outstanding Shares.
Pursuant to the Merger Agreement, in the event of the termination and
abandonment of the Merger Agreement, the Merger Agreement will become void and
have no effect, without any liability on the part of any party or its
affiliates, directors, officers or shareholders, other than certain provisions
of the Merger Agreement relating to the termination fee, expenses of the parties
and confidentiality of information, provided, that a party will not be relieved
from liability for any breach of the Merger Agreement.
Costs and Expenses. Except as discussed above, the Merger Agreement
provides that all costs and expenses incurred in connection with the
transactions contemplated by the Merger Agreement shall be paid by the party
incurring such costs and expenses.
Amendments and modifications. Subject to applicable law, the Merger
Agreement may be amended, modified or supplemented only by a written agreement
of the Parent (for itself and the Purchaser) and the Company at any time prior
to the Effective Time expected by duly authorized officers of the respective
parties except that after the earlier of (i) the purchase by the Purchaser of
more than 50% of the outstanding Shares on a fully diluted basis, and (ii) the
meeting of shareholders to approve the Merger, the price per Share to be paid
pursuant to the Merger Agreement to the holders of Shares may not be decreased
at the form of consideration to be received by the holders of Shares in the
Merger may not be altered without approval of such holders.
SHAREHOLDER TENDER AGREEMENTS
Under the Shareholder Tender Agreements (the "Tender Agreements") executed
by and between Purchaser and each of the directors of the Company ("Tender
Shareholders"), each Tender Shareholder agrees to tender all Shares beneficially
owned by him or her in accordance with the terms of the Offer and to not
withdraw the tender of such shares. A copy of a form of Tender Agreement is
attached hereto as Exhibit 2 and is incorporated by reference herein, and the
following description of such agreement is qualified in its entirety by
reference thereto.
Pursuant to the Tender Agreements each Tender Shareholder acknowledges that
his obligation to accept payment for his Shares is subject to all the terms and
conditions of the Offer and agrees not to transfer or offer to sell any of the
Shares that he or she beneficially owns except pursuant to the Offer. Moreover,
the Tender Shareholder, by the terms of the Tender Agreement, appoints Purchaser
as its proxy, during and for the term of the Tender Agreement, to vote each
Share beneficially owned by him or her at any annual, special, or adjourned
meeting of the stockholders of the Company (a) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
and adoption of the terms thereof; (b) against any action or agreement that
would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Merger Agreement; and (c)
against the following actions (other than the Merger and the other transactions
contemplated by the Merger Agreement): (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or its subsidiaries; (ii) a sale, lease or transfer of a
material amount of assets of the Company or one of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (iii) (A) any change in a majority of the persons who
constitute the board of directors of the Company as of the date hereof; (B) any
change in the present capitalization of the Company or any amendment of the
Company's Certificate of Incorporation or By-Laws, as amended to date; (C) any
other material change in the Company's corporate structure or business; or (D)
any other action which, in the case
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of each of the matters referred to in clauses (iii)(A), (B), (C) and (D), is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the Merger and the other transactions contemplated
by this Agreement and the Merger Agreement. The Tender Agreement terminates on
the date the Merger Agreement is terminated in accordance with its terms.
If Purchaser or the Company terminates the Merger Agreement (other than
certain terminations by the Company based on a breach of a representation,
warranty or covenant of the Parent or Purchaser under the Merger Agreement) and
within two years from the date of such termination, the Board of Directors
approves or recommends any proposal concerning any merger, sale of assets, sale
of shares of capital stock or similar transaction involving the Company other
than from Purchaser at a per share price with a value in excess of $7.75, then
the Tender Shareholders agree to pay Purchaser an amount equal to the product of
(x) the excess of the other subsequent price over the current Offer price and
(y) the number of shares disposed of or otherwise participating in the
subsequent transaction. The fee payable by the Tender Shareholder to the
Purchaser under the Tender Agreement would also be applicable to certain other
transactions involving the Company or the Tender Shareholder within such
two-year period.
CONFIDENTIALITY AGREEMENT
On July 19, 1994, the Company, the Parent and DLJ entered into a
confidentiality agreement (the "Confidentiality Agreement"), pursuant to which
the Company agreed to provide certain confidential information (the "Evaluation
Material") to the Parent in connection with the Parent's evaluation of a
possible negotiated transaction involving the Company. The Confidentiality
Agreement provides, among other things, that (i) the Evaluation Material may
only be disclosed to directors, officers, employees, advisors and other
representatives of the Parent who need to know the Evaluation Material in order
to assist in the evaluation of a possible transaction, (ii) the Parent may
disclose Evaluation Material to relevant regulatory authorities, provided the
Parent has received an opinion of counsel that such disclosure is required by
applicable law, exchange requirement or similar obligation and, prior to such
disclosure, the Parent advises and consults with the Company and its legal
counsel regarding the information proposed to be disclosed; (iii) if the Parent
decides not to proceed with a transaction involving the Company, the Parent will
promptly notify DLJ and promptly redeliver to the Company all copies of the
Evaluation Material and all other related materials in its possession; and (iv)
it will remain in effect for two years from the date thereof.
COMPANY BENEFIT PLANS
1986 Employee Stock Purchase Plan. The terms and conditions of the 1986
Employee Stock Purchase Plan (the "Purchase Plan") provide that in the event of
any merger of which the Company is the survivor but becomes a subsidiary of
another corporation, each participant in the Purchase Plan has the right
immediately prior to the merger to elect to receive the number of whole shares
which can be purchased at the Purchase Price of the merger, as defined in the
Purchase Plan, with the full amount which has been withheld from and paid by him
or her pursuant to the Purchase Plan, together with any remaining excess cash in
his account. If such an election is not made, the participant's subscription
agreement shall terminate and he or she shall receive a prompt refund in cash of
the total amount of his or her account. A copy of the Purchase Plan is attached
hereto as Exhibit 6 and is incorporated herein by reference.
On October 20, 1995, the Board of Directors of the Company approved a
resolution providing that the Company would not accept any additional
subscriptions to purchase shares of the Company's Common Stock pursuant to the
Purchase Plan received after 11:59 p.m. (E.S.T.) on the date thereof, and that
the Purchase Plan would be deemed amended accordingly. Under the Merger
Agreement, participants in the Purchase Plan who agree to cancel their
subscriptions prior to the effective date of the Merger will be entitled to
receive at such date an amount in cash equal to the total amount of their
account under the Purchase Plan plus an amount equal to the difference between
the "purchase price," as defined in the Purchase Plan, of each share covered by
such subscription agreement, and the Merger Consideration.
1988 Stock Option Plan. The terms and conditions of the Company's 1988
Stock Option Plan (the "Option Plan") provide that in the event that the Company
is merged with another corporation, the Board of
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Directors of any corporation assuming the obligations of the Company thereunder,
shall either (i) make appropriate provision for the protection of any
outstanding options by the substitution on an equitable basis of appropriate
stock of the Company, or of the merged corporation, which will be issuable in
respect to the shares of Common Stock of the Company, provided only that the
excess of the aggregate fair market value of the shares subject to such options
immediately after such substitution over the purchase price thereof is not more
than the excess of the aggregate fair market value of the shares subject to
options immediately before such substitution over the purchase price thereof, or
(ii) upon written notice to the participant provide that the option must be
exercised with sixty (60) days of the date of such notice or it will be
terminated. A copy of the Option Plan is attached hereto as Exhibit 7 and is
incorporated herein by reference.
On October 20, 1995, the Board of Directors of the Company approved a
resolution providing that with respect to options outstanding under the Option
Plan, the proper officers of the Company would be authorized: (i) if the
exercise price of the option is greater than $7.75 per share, to obtain
agreements from each holder to surrender the option and cancel his or her stock
option agreement effective upon the consummation of the Merger; or (ii) if the
exercise price of the option is less than $7.75 per share, to obtain agreements
from each holder to surrender the option and cancel his or her stock option
agreement effective upon consummation of the Merger, in consideration of a cash
payment at the effective date of the Merger equal to the difference between the
exercise price and $7.75 per share; and (iii) if the holder refuses to sign the
agreement described in clauses (i) and (ii) above, to provide the 60-day notice
of termination of the option set forth in the Option Plan as described above.
The Board also approved and adopted a resolution providing that each
outstanding option under the Option Plan would be accelerated so as to be fully
exercisable prior to the consummation of the Offer, subject to the condition
that the holder of each such option would surrender all of his or her
outstanding and unexercised options (whether or not presently exercisable), and
would sign the agreement relating to the surrender and payment or surrender and
cancellation of the options, as described in the preceding paragraph.
1991 Directors Stock Plan. Under the Company's 1991 Directors Stock Plan
(the "Directors Plan") a total of 2,400 shares of Common Stock are available for
issuance and will be issued and fully vested upon consummation of the Offer in
accordance with the terms of the Directors Plan. A copy of the Directors Plan is
attached hereto as Exhibit 8 and is incorporated herein by reference.
1994 Severance Plan. Under the terms of the Merger Agreement, the Parent
will, and will cause the Surviving Corporation to, provide severance benefits to
all of the employees of the Company (as of the date of acceptance for payment of
the Shares pursuant to the Offer) of equal or greater value to those set forth
in the Company's 1994 Severance Plan for a period of two years following the
date of acceptance for payment of the Shares. This covenant shall survive the
Effective Time, as defined in the Merger Agreement, until fully discharged and
is intended to benefit all of the employees of the Company as of the date of
acceptance for payment of the Shares pursuant to the Offer. A copy of the 1994
Severance Plan is attached hereto as Exhibit 9 and is incorporated herein by
reference.
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
(a) and (b) At a meeting held on October 20, 1995, the Company's Board of
Directors unanimously determined that the Merger Agreement and the Offer and the
Merger described therein are fair to, and in the best interests of, the Company
stockholders, and recommended that all of the Company's shareholders tender
their shares pursuant to the Offer.
In reaching its conclusion, the Board of Directors of the Company carefully
considered the terms and conditions of the Offer and other matters, including
presentations by the Company's management, the Company's financial advisor,
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), and the Company's
legal advisor.
DLJ reviewed with the Board, among other things, the Company's need to find
a strong strategic partner to remain competitive in a changing and increasingly
competitive market. DLJ also provided a brief history of
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its efforts on behalf of the Company to identify a strategic partner since DLJ
was retained by the Company in November of 1992.
On or about July, 1994, DLJ received a verbal indication of interest from a
company which is a major financial transaction processor for a possible
transaction at a price of $5.25 per share. During a subsequent conversation with
DLJ, this entity expressed an unwillingness to explore a potential transaction
at a higher price, and the Company subsequently broke off discussions.
Parent and the Company first discussed the possibility of Parent's
acquisition of the Company in February of 1994. Subsequently, from April of 1994
until October of 1994 both entities took steps to explore the feasibility of an
acquisition. These steps included due diligence investigations, visits to
facilities, evaluations of operations, analyzes of products and technological
capabilities, and reviews of opportunities for profit improvements based on
synergies resulting from a business combination. Based on these visits and other
due diligence inquires, Parent and the Company prepared tentative business plans
and strategies for an eventual business combination. However, negotiation
discussions were broken off on October 17, 1994 when the Parent learned that
certain liabilities of the Company were not capable of being quantified before
the proposed transaction date.
In September of 1994, the Company began discussions with a major financial
services company regarding a possible acquisition of the Company. A
non-disclosure agreement between this entity and the Company was entered into on
February 1, 1995. In December of 1994, DLJ received a verbal indication of
interest from this entity at a proposed price of around $9.00 per share. This
entity conducted extensive due diligence on the Company during the period from
December of 1994 until May, 1995, and the parties and their counsel negotiated a
draft merger agreement for the proposed transaction. During the month of June,
1995, however, the Company was advised by representatives of this entity that,
as a result of a proxy fight with a dissident shareholder group (which group,
according to published reports, is seeking to limit the entity's involvement in
certain non-traditional businesses), the entity decided not to pursue a
transaction with the Company.
In June 1995, DLJ contacted Greg Searle and Gerald Morris of Parent
regarding a possible transaction. Initial price indications were at $7.00 per
share. During this conversation, DLJ said that the proposed price was below the
current market price of the Company's Shares at such time, and would not be
acceptable to the Company. On or about September 21, 1995, Parent increased its
proposed offer price to $7.50 per share. As a result of further discussions on
or about September 28, 1995 between DLJ and Goldman, Sachs & Co., Inc., Parent's
financial advisor, Parent increased its proposed offer price to $7.75 per share.
On October 3, 1995, Goldman Sachs & Co., Inc. advised DLJ that $7.75 was
Parent's best offer.
DLJ advised the Board at its October 20, 1995 meeting that, in DLJ's view,
further negotiation as to price would be unlikely to cause Parent to increase
the Offer price, based on its discussion with Goldman, Sachs & Co., Inc. DLJ
further advised the Board that DLJ was not aware of any other strategic partners
available to the Company at this time.
After a review of the negotiation history, DLJ made a presentation to the
Board which included, among other things, (i) a comparison of certain financial
and securities data of the Company with various other companies whose securities
are traded in public markets; (ii) a review of the historical stock prices and
trading volumes of the Common Stock of the Company; and (iii) a review of prices
and premiums paid in other business combinations. DLJ delivered its oral opinion
to the Board that the $7.75 cash consideration per share proposed to be paid to
the holders of shares pursuant to the Offer was fair to the shareholders from a
financial point of view. DLJ subsequently confirmed its oral fairness opinion in
writing. The written fairness opinion of DLJ dated October 20, 1995 (the
"Fairness Opinion") is filed as Exhibit 3 to this Schedule 14D-9 and is
incorporated herein by reference, and the preceding description of such opinion
is qualified in its entirety by reference thereto.
The Company's senior management and legal advisors summarized the principal
terms of the transaction and the final form of the Merger Agreement with the
Board, including certain considerations relating to the regulatory and antitrust
aspects of the Offer, the termination and break-up fee provisions, the
continuation of
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indemnification and director's and officer's liability insurance and the Board's
fiduciary obligations to the Company's stockholders.
Based on the presentations described above and the Board's own
deliberations and discussions, the Board unanimously determined that the Offer
and the Merger pursuant to the draft Merger Agreement would be fair to, and in
the best interests of, the Company's stockholders and that it would recommend to
the Company's stockholders that they accept the Offer and tender all their
shares pursuant to the Offer. In the evening following the October 20 Board
meeting, the definitive Merger Agreement was executed by the parties. The
Company and Parent issued a joint press release announcing the execution of the
Merger Agreement on October 23, 1995. A copy of the joint press release is
attached as Exhibit 4 hereto.
In reaching its conclusion to approve the Merger Agreement and recommend
that shareholders accept the Offer, the Company's Board of Directors considered
a number of factors, including, without limitation, the following:
(1) The business, financial condition, results of operations and
competitive position of the Company, on both a historical and a prospective
basis, as well as the current industry, economic and market conditions and the
Company's current operating strategies.
(2) Historical trading prices and recent trading patterns of the Company's
Common Stock. The Board noted that the offer price constitutes a premium over
current market prices for the Company's Common Stock.
(3) The Fairness Opinion of DLJ, the Company's financial advisor, that, on
the basis of its review and analysis and subject to the limitations set forth
therein, the $7.75 per share cash consideration to be received by the
shareholders of the Company pursuant to the Offer is fair, from a financial
point of view, to such shareholders.
(4) The terms and conditions of the Offer and Merger, as reviewed by and
discussed with the Company's management and legal counsel.
(5) The Board's belief that the Offer and the Merger represent the best
alternative available to the Company and its shareholders under present
circumstances, based on presentations from the management of the Company and the
consideration of all other relevant factors. In this regard, the Board
considered the Company's extensive recent history of discussions with third
parties regarding the possibility of an acquisition or other strategic
transaction.
The Board of Directors did not assign relative weights to the foregoing
factors or determine that any factor was of more importance than other factors.
Rather, the Board of Directors viewed its position and recommendations as being
based on the totality of the information presented to and considered by it.
A copy of the written Fairness Opinion of DLJ, setting forth the
assumptions made, factors considered and scope of the review undertaken by DLJ
is attached hereto as Exhibit 3 and incorporated herein by reference.
SHAREHOLDERS ARE URGED TO READ THE OPINION OF DLJ IN ITS ENTIRETY.
ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The Company and DLJ have entered into a letter agreement dated November 10,
1992, as amended on April 8, 1994 (the "Engagement Letter").
Pursuant to the Engagement Letter, DLJ has been engaged to act as the
exclusive financial advisor to the Company for a period of four years with
respect to the sale, merger, consolidation or any other business combination, in
one or a series of transactions, involving all or a substantial amount (more
than fifty percent) of the business, securities or assets of the Company (each a
"Transaction"). The Engagement Letter provides that the Company will pay to DLJ
for its services (i) a retainer fee of $100,000, (ii) a fee of $100,000 at the
time DLJ notifies the Board that DLJ is prepared to deliver its opinion as to
the fairness from a financial point of view of any proposed acquisition
transaction, if requested by the Company, (iii) additional cash which is an
amount equal to two and one quarter percent (2.25%) of the aggregate amount of
consideration received by
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the Company and/or its shareholders, plus the amount of any debt securities
assumed or preferred stock redeemed or remaining outstanding in connection with
the Transactions, including, in the case of a sale or other disposition by the
Company of assets, the net value of any assets not sold by the Company, less the
amount paid to DLJ pursuant to clause (i) above. Such additional compensation
shall be contingent upon and payable in cash promptly upon consummation of a
Transaction.
Except as described above, neither the Company nor any person acting on its
behalf has retained any other person to make solicitations or recommendations to
security holders on its behalf concerning the Offer.
ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES.
(a) To the best of the Company's knowledge, there has been no transaction
in securities referred to in Item 1 which was effected during the past sixty
(60) days by the person(s) named in response to Item 3(a) and by any executive
officer, director or affiliate or subsidiary of such persons.
(b) The members of the Board of Directors have signed Shareholder Tender
Agreements and intend to tender to Purchaser the Shares being sought by
Purchaser which are held of record or beneficially owned by such persons.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY.
(a) Except as described under Items 3(b) and 4 above, the Company is not
engaged in any negotiations in response to the Offer which relates to or would
result in: (i) an extraordinary transaction such as a merger or reorganization,
involving the Company or any subsidiary of the Company; (ii) a purchase, sale or
transfer of a material amount of assets by the Company or any subsidiary of the
Company; (iii) a tender offer for or other acquisition of securities by or of
the Company; or (iv) any material change in the present capitalization or
dividend policy of the Company.
(b) Except as otherwise set forth in response to Item 4 above, there is no
transaction, Board resolution, agreement in principle or signed contract in
response to the Offer.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Annex I is being furnished in connection with the possible designation by
the Purchaser, pursuant to the Merger Agreement, of certain persons to be
appointed to the Board of Directors other than at a meeting of the Company's
shareholders.
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INFORMATION CONCERNING THE PURCHASER DESIGNEES
TO THE BOARD OF DIRECTORS OF THE COMPANY
(ALL ARE CITIZENS OF THE UNITED STATES)
NAME AND AGE (AS OF PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
10/23/95) FIVE-YEAR EMPLOYMENT HISTORY
- ---------------------------------------------------------------------------------------------
William T. Blair (62) 1993-present, Executive Vice President, Diebold; 1989-93 Vice
c/o Diebold, Incorporated President and General Manager, North American Sales and Services,
5995 Mayfair Road Diebold
North Canton, OH 44720
Gerald F. Morris (52) 1993-present, Executive Vice President and Chief Financial
c/o Diebold, Incorporated Officer,
5995 Mayfair Road Diebold; 1994-present, Vice President, Treasurer and Director,
North Canton, OH 44720 D-GT Acquisition; 1990-93, Senior Vice President and Chief
Financial Officer, Diebold
Gregg A. Searle (47) 1993-present, Executive Vice President, Diebold; 1994-present,
c/o Diebold, Incorporated President and Director, D-GT Acquisition; 1990-1993, Vice
5995 Mayfair Road President,
North Canton, OH 44720 Diebold; 1991-93, General Manager, InterBold; 1990-91, Vice
President,
U.S. Sales & Marketing, InterBold
Alben W. Warf (57) 1994-present, Group Vice President, Self-Service Systems,
c/o Diebold, Incorporated Diebold;
5995 Mayfair Road 1993-94, Vice President, Diebold, and General Manager, InterBold;
North Canton, OH 44720 1990-93, Vice President, Development and Manufacturing, Diebold
Robert J. Warren (49) 1990-present, Vice President and Treasurer, Diebold;
c/o Diebold, Incorporated 1994-present,
5995 Mayfair Road Director, D-GT Acquisition
North Canton, OH 44720
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 -- Agreement and Plan of Merger dated as of October 20, 1995 by
and among Company, Purchaser and Parent.
Exhibit 2 -- Form of Shareholder Tender Agreement between Purchaser and
each Tender Shareholder of the Company.
Exhibit 3 -- Fairness Opinion delivered by DLJ to the Board of Directors of
the Company dated October 20, 1995.
Exhibit 4 -- Joint Press Release of the Company and Parent dated October
23, 1995.
Exhibit 5 -- Information concerning the Purchaser Designees to the Board of
Directors of the Company.
Exhibit 6 -- 1986 Employee Stock Purchase Plan.
Exhibit 7 -- 1988 Stock Option Plan.
Exhibit 8 -- 1991 Directors Stock Plan.
Exhibit 9 -- 1994 Severance Plan.
Exhibit 10 -- Page 3 of 1995 Proxy Statement.
Exhibit 11 -- Confidentiality Agreement between Parent and Company, dated
July 19, 1994.
Exhibit 12 -- Letter to Shareholders of the Company.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 26, 1995
GRIFFIN TECHNOLOGY INCORPORATED
By: /s/ Robert S. Urland
---------------------------
Name: Robert S. Urland
Title: President and Chief
Executive Officer
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EXHIBIT INDEX
Exhibit 1 -- Agreement and Plan of Merger dated as of October 20, 1995 by
and among Company, Purchaser and Parent.
Exhibit 2 -- Form of Shareholder Tender Agreement between Purchaser and
each Tender Shareholder of the Company.
Exhibit 3 -- Fairness Opinion delivered by DLJ to the Board of Directors of
the Company dated October 20, 1995.
Exhibit 4 -- Joint Press Release of the Company and Parent dated October
23, 1995.
Exhibit 5 -- Information concerning the Purchaser Designees to the Board of
Directors of the Company.
Exhibit 6 -- 1986 Employee Stock Purchase Plan.
Exhibit 7 -- 1988 Stock Option Plan.
Exhibit 8 -- 1991 Directors Stock Plan.
Exhibit 9 -- 1994 Severance Plan.
Exhibit 10 -- Page 3 of 1995 Proxy Statement.
Exhibit 11 -- Confidentiality Agreement between Parent and Company, dated
July 19, 1994.
Exhibit 12 -- Letter to Shareholders of the Company.