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OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
DRAVO CORPORATION
AT
$13.00 NET PER SHARE
BY
DLC ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
CARMEUSE LIME, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, OCTOBER 19, 1998
UNLESS THE OFFER IS EXTENDED.
THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER DATED
AS OF SEPTEMBER 15, 1998, AMONG DRAVO CORPORATION (THE "COMPANY"), CARMEUSE
LIME, INC. ("PARENT") AND DLC ACQUISITION CORP. ("PURCHASER"). THE BOARD OF
DIRECTORS OF THE COMPANY UNANIMOUSLY HAS DETERMINED THAT EACH OF THE OFFER AND
THE MERGER (AS HEREINAFTER DEFINED) IS FAIR TO, AND IN THE BEST INTERESTS OF,
THE SHAREHOLDERS OF THE COMPANY, AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER. THE SHARES ARE
LISTED FOR TRADING ON THE NEW YORK STOCK EXCHANGE UNDER THE SYMBOL "DRV." SEE
"SECTION 6 -- PRICE RANGE OF SHARES; DIVIDENDS."
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER SUCH NUMBER OF
SHARES WHICH CONSTITUTES AT LEAST A MAJORITY OF THE ACTUAL SHARES OUTSTANDING ON
A FULLY DILUTED BASIS AND OF THE VOTING POWER OF THE COMPANY'S OUTSTANDING
VOTING SECURITIES ENTITLED TO VOTE ON THE MERGER (AS HEREINAFTER DEFINED) (THE
"MINIMUM CONDITION"). ALTHOUGH UNDER THE TERMS OF THE MERGER AGREEMENT (AS
HEREINAFTER DEFINED) PARENT AND PURCHASER MAY WAIVE THE MINIMUM CONDITION, THEY
DO NOT CURRENTLY INTEND TO DO SO, AND PARENT AND PURCHASER MAY TERMINATE THE
MERGER AGREEMENT IF THE MINIMUM CONDITION IS NOT SATISFIED. THE OFFER IS ALSO
SUBJECT TO OTHER TERMS AND CONDITIONS. SEE "SECTION 14 -- CONDITIONS OF THE
OFFER."
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IMPORTANT
Any shareholder desiring to tender all or any portion of such shareholder's
shares of common stock, $1.00 par value, of the Company (the "Shares") should
either (i) complete and sign the Letter of Transmittal (or a facsimile thereof)
in accordance with the instructions in the Letter of Transmittal and mail or
deliver it together with the Certificates(s) evidencing tendered Shares, and any
other required documents, to the Depositary, or tender such Shares pursuant to
the procedures for book-entry transfer set forth in "Section 3 -- Procedure for
Tendering Shares" or (ii) request such shareholder's broker, dealer, commercial
bank, trust company or other nominee to effect the transaction for such
shareholder. A shareholder whose Shares are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee must contact such
broker, dealer, commercial bank, trust company or other nominee if such
shareholder desires to tender such Shares.
A shareholder who desires to tender Shares and whose certificates
evidencing such Shares are not immediately available, or who cannot comply with
the procedures for book-entry transfer described in this Offer to Purchase on a
timely basis, may tender such Shares by following the procedures for guaranteed
delivery set forth in "Section 3 -- Procedure for Tendering Shares."
Questions and requests for assistance, or for additional copies of this
Offer to Purchase, the Letter of Transmittal or other tender offer materials,
may be directed to the Information Agent or the Dealer Manager at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase. A shareholder may also contact brokers, dealers, commercial
banks and trust companies for assistance concerning the Offer.
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The Dealer Manager for the Offer is:
ING BARING FURMAN SELZ LLC
September 21, 1998
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TABLE OF CONTENTS
PAGE
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INTRODUCTION................................................ 1
THE TENDER OFFER............................................ 3
1. Terms of the Offer................................. 3
2. Acceptance for Payment and Payment for Shares...... 4
3. Procedures for Tendering Shares.................... 5
4. Withdrawal Rights.................................. 7
5. Certain Federal Income Tax Consequences............ 8
6. Price Range of Shares; Dividends................... 9
7. Certain Information Concerning the Company......... 9
8. Certain Information Concerning Purchaser, Parent,
Carmeuse NA, Carfin, LVI and
Carmeuse SA........................................ 11
9. Source and Amount of Funds......................... 13
10. Background of the Offer; Contacts with the
Company............................................... 14
11. Purpose of the Offer; Plans for the Company; Merger
Agreement; and Other Agreements....................... 15
12. Dividends and Distributions; Changes in Stock...... 23
13. Effect of the Offer on the Market for the Shares;
NYSE Listing and Exchange Act
Registration........................................ 24
14. Conditions of the Offer............................ 25
15. Regulatory Approvals; State Takeover Laws.......... 26
16. Fees and Expenses.................................. 30
17. Miscellaneous...................................... 30
SCHEDULE I -- Information Concerning the Directors and
Executive Officers of Parent, Purchaser and LVI........... I-1
ANNEX A -- Text of Subchapter 25E of the Pennsylvania
Business Corporation Law.................................. A-1
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TO THE HOLDERS OF COMMON STOCK OF
DRAVO CORPORATION:
INTRODUCTION
DLC Acquisition Corp. ("Purchaser"), a Pennsylvania corporation and wholly
owned subsidiary of Carmeuse Lime, Inc. ("Parent"), a Delaware corporation and
indirect subsidiary of LVI Holding N.V. ("LVI"), a Dutch corporation, hereby
offers to purchase all outstanding shares of common stock, $1.00 par value (the
"Shares"), of Dravo Corporation, a Pennsylvania corporation (the "Company"), at
a price of $13.00 per Share, net to the seller in cash, without interest thereon
(the "Offer Price"), upon the terms and subject to the conditions set forth in
this Offer to Purchase and in the related Letter of Transmittal (which, as
amended from time to time, together constitute the "Offer").
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of September 15, 1998 (the "Merger Agreement"), by and among Parent,
Purchaser and the Company. The Merger Agreement provides that, among other
things, as soon as practicable after the purchase of Shares pursuant to the
Offer and the satisfaction of the other conditions set forth in the Merger
Agreement and in accordance with the relevant provisions of the Pennsylvania
Business Corporation Law ("Pennsylvania Law"), Purchaser will be merged with and
into the Company (the "Merger"). Following consummation of the Merger, the
Company will continue as the surviving corporation (the "Surviving Corporation")
and will be a wholly owned subsidiary of Parent. At the effective time of the
Merger (the "Effective Time"), which will occur when Articles of Merger are
filed with the Pennsylvania Department of State, each Share issued and
outstanding immediately prior to the Effective Time (other than Shares held by
the Company or any subsidiary of the Company or owned by Purchaser, Parent or
any other subsidiary of Parent, or Shares held by dissenting shareholders who
perfect their dissenter's rights under Pennsylvania Law), will be converted into
the right to receive the Offer Price, without interest thereon. The Merger
Agreement is more fully described in "Section 11 -- Purpose of the Offer; Plans
for the Company; Merger Agreement; and Other Agreements."
THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD"), BY UNANIMOUS VOTE, HAS
APPROVED EACH OF THE OFFER AND THE MERGER (AS HEREINAFTER DEFINED), HAS
DETERMINED THAT EACH OF THE OFFER AND THE MERGER IS FAIR TO AND IN THE BEST
INTERESTS OF THE COMPANY'S SHAREHOLDERS AND UNANIMOUSLY RECOMMENDS THAT
SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
The Offer is conditioned upon, among other things, there having been
validly tendered and not withdrawn prior to the expiration of the Offer at least
a majority of the actual Shares outstanding on a fully diluted basis and of the
voting power of the Company's outstanding voting securities entitled to vote on
the Merger (the "Minimum Condition"). Although under the terms of the Merger
Agreement (as hereinafter defined) Parent and Purchaser may waive the Minimum
Condition, they do not currently intend to do so, and Parent and Purchaser may
terminate the Merger Agreement if the Minimum Condition is not satisfied. See
"Section 14 -- Conditions of the Offer." The Offer is not conditioned upon
obtaining financing. See "Section 9 -- Source and Amount of Funds."
The Company has advised Purchaser and Parent that Salomon Smith Barney Inc.
("Salomon Smith Barney"), the Company's financial advisor, has delivered to the
Board its written opinion dated September 15, 1998 to the effect that, as of
such date and based upon and subject to certain matters stated therein, the
$13.00 per Share cash consideration to be received in the Offer and the Merger
by holders of Shares (other than Parent and its affiliates) was fair, from a
financial point of view, to such holders. A copy of the written opinion dated
September 15, 1998 of Salomon Smith Barney, which sets forth the assumptions
made, matters considered and limitations on the review undertaken by Salomon
Smith Barney, is contained in the Company's Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9"), which is being mailed to the
Company's shareholders together with this Offer to Purchase.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase by Purchaser of Shares
pursuant to the Offer. However, any tendering shareholder or other payee who
fails to complete and sign the
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Substitute Form W-9 included in the Letter of Transmittal may be subject to a
required backup federal income tax withholding of 31% of the gross proceeds
payable to such shareholder or other payee pursuant to the Offer. Purchaser will
pay all charges and expenses of ING Baring Furman Selz LLC ("ING Barings"), as
Dealer Manager (the "Dealer Manager"), Continental Stock Transfer & Trust
Company, as Depositary (the "Depositary"), and Morrow & Co., Inc., as
Information Agent (the "Information Agent") incurred in connection with the
Offer. See "Section 16 -- Fees and Expenses."
The Merger Agreement provides that, promptly upon the purchase by
Purchaser, pursuant to the Offer and in accordance with the Merger Agreement, of
such number of Shares as represents a majority of the Shares, on a fully diluted
basis, Purchaser will be entitled to designate such number of directors, rounded
up to the next whole number, on the Board as is equal to the product of (a) the
total number of directors (after giving effect to the appointment of such
directors) and (b) the percentage that such number of Shares so purchased bears
to the number of Shares outstanding; provided that in no event will the number
of directors be less than a majority of the total number of directors of the
Company. The Company must, upon written request of Purchaser, increase the size
of the Board and/or take all action necessary to secure the resignations of such
number of its incumbent directors as is necessary to enable Parent's designees
to be so elected or appointed to the Board, and to cause Parent's designees to
be so elected or appointed. The Merger Agreement requires that, in the event
that Purchaser's designees are elected or appointed to the Board, until the
Effective Time the Board must have at least two directors who are neither an
officer of the Company or its subsidiaries nor a designee, stockholder,
affiliate or associate of Parent (the "Independent Directors"); provided that if
the number of Independent Directors is reduced below two for any reason, any
remaining Independent Directors will be entitled to fill such vacancy(ies) and
if no Independent Directors remain, the other directors will designate one
person who will not be either an officer of the Company or its subsidiaries or a
designee, shareholder, affiliate or associate of Parent to fill one of the
vacancies, which person will be deemed to be an Independent Director for
purposes of the Merger Agreement and will be entitled to fill any remaining
vacancy in the number of Independent Directors.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including, if required by law, the approval and adoption of
the Merger Agreement by the requisite vote of the shareholders of the Company.
See "Section 11 -- Purpose of the Offer; Plans for the Company; Merger
Agreement; and Other Agreements." Under Pennsylvania Law, except as otherwise
described below, the Merger contemplated by the Merger Agreement must be
approved by the affirmative vote of a majority of the shares voted on a proposal
to approve the Merger at a duly convened meeting of the shareholders of the
Company. However, under Pennsylvania Law, if Purchaser acquires at least 80% of
each class of the then outstanding shares of the Company, the parties will be
able to cause the Merger under the Merger Agreement to become effective without
the approval of the Company's shareholders. In the event that Parent, Purchaser
or any permitted assignee of Purchaser acquires at least 80% of each class of
the then outstanding shares of the Company, Parent, Purchaser and the Company
have agreed to take, at the request of Parent and subject to the conditions of
the Merger Agreement, all necessary and appropriate action to cause the Merger
to become effective as soon as practicable after such acquisition, without
approval of the Company's shareholders. See "Section 11 -- Purpose of the Offer;
Plans for the Company; Merger Agreement; and Other Agreements." If, however,
Purchaser does not acquire at least 80% of each class of the then outstanding
shares of the Company and a vote of the Company's shareholders is required under
Pennsylvania Law, a significantly longer period of time will be required to
effect the Merger. Although under the terms of the Merger Agreement, Parent and
Purchaser may waive the Minimum Condition, they do not currently intend to do so
and Parent and Purchaser may terminate the Merger Agreement if the Minimum
Condition is not satisfied.
The obligations of Parent and Purchaser under the Merger Agreement are
guaranteed by Carmeuse S.A., a Belgian corporation and an affiliate of Parent
and Purchaser ("Carmeuse SA").
The Company has informed Purchaser that, as of September 15, 1998, there
were 14,718,693 Shares issued and outstanding, 392,413 Shares issued and held in
the treasury of the Company, 51,456 Shares reserved for issuance upon conversion
of the issued and outstanding shares of Series B Preference Stock, par value
$1.00 per share (the "Series B Preference Stock") and 1,600,000 Shares reserved
for issuance upon conversion of the issued and outstanding shares of Series D
Preferred Stock, par value $1.00 per share (the
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"Series D Preferred Stock" and, together with the Series B Preference Stock, the
"Preference Stock") and 1,373,300 Shares reserved for issuance upon exercise of
outstanding options granted under the Company's option plans.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
THE TENDER OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer (including
without limitation the Minimum Condition and, if the Offer is extended or
amended, the terms and conditions of any extension or amendment), Purchaser will
accept for payment and pay for all Shares validly tendered prior to the
Expiration Date (as hereinafter defined) and not withdrawn, subject to the
Minimum Condition and in accordance with "Section 4 -- Withdrawal Rights." The
term "Expiration Date" means 12:00 Midnight, New York City time, on Monday,
October 19, 1998, unless and until Purchaser, in its sole discretion (but
subject to the terms of the Merger Agreement), has extended the period of time
during which the Offer is open, in which event the term "Expiration Date" will
mean the latest time and date at which the Offer, as so extended by Purchaser,
will expire.
Purchaser expressly reserves the right, in its sole discretion (but subject
to the terms of the Merger Agreement), at any time and from time to time, to
extend for any reason the period of time during which the Offer is open,
including the occurrence of any of the events specified in "Section
14 -- Conditions of the Offer," by giving oral or written notice of such
extension to the Depositary. During any such extension, all Shares previously
tendered and not withdrawn will remain subject to the Offer, subject to the
rights of a tendering shareholder to withdraw its Shares. See "Section
4 -- Withdrawal Rights." UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE TO BE PAID BY PURCHASER FOR THE TENDERED SHARES, REGARDLESS OF
ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
Subject to the applicable regulations of the Securities and Exchange
Commission (the "Commission"), Purchaser expressly reserves the right, in its
sole discretion (but subject to the terms of the Merger Agreement), at any time
and from time to time, (i) to delay acceptance for payment of, or, regardless of
whether such Shares were theretofore accepted for payment, payment for, any
Shares pending receipt of any regulatory approval specified in "Section
15 -- Regulatory Approvals; State Takeover Laws" or in order to comply in whole
or in part with any other applicable law, (ii) to terminate the Offer and not
accept for payment any Shares if any of the conditions referred to in "Section
14 -- Conditions of the Offer" has not been satisfied or upon the occurrence of
any of the events specified in "Section 14 -- Conditions of the Offer" and (iii)
to waive any condition or otherwise amend the Offer in any respect by giving
oral or written notice of such delay, termination, waiver or amendment to the
Depositary and by making a public announcement thereof.
The Merger Agreement provides that, without the consent of the Company,
Purchaser will not decrease, or change the form of, the Offer Price, decrease
the number of Shares sought, amend any condition of or impose additional
conditions on the Offer, amend any term of the Offer, amend the Minimum
Condition, or amend any other term of the Offer in any manner adverse to the
shareholders, except that Purchaser must extend the Offer (i) for ten business
days beyond the initial scheduled Expiration Date until Monday, November 2, 1998
if the Minimum Condition has not then been satisfied; and (ii) on one or more
occasions, in each instance for up to ten business days, beyond the then
scheduled Expiration Date, but not beyond December 14, 1998, if the Company,
Parent or Purchaser receives a request for additional information with respect
to their filings under the Hart-Scott Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), in which case the Offer will be extended until the
waiting period under the HSR Act is terminated or until the Merger Agreement is
terminated in accordance with its terms.
Purchaser acknowledges that (i) Rule 14e-1(c) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), requires Purchaser to pay the
consideration offered or return the Shares tendered promptly after the
termination or withdrawal of the Offer, and (ii) Purchaser may not delay
acceptance for payment of, or payment for (except as provided in clause (i) of
the first sentence of the second preceding
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paragraph), any Shares upon the occurrence of any of the conditions specified in
"Section 14 -- Conditions of the Offer" without extending the period of time
during which the Offer is open.
Any such extension, delay, termination, waiver or amendment will be
followed as promptly as practicable by public announcement thereof, with such
announcement in the case of an extension to be made no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. Subject to applicable law (including Rules 14d-4(c), 14d-6(d)
and 14e-1 under the Exchange Act, which require that material changes be
promptly disseminated to shareholders in a manner reasonably designed to inform
them of such changes) and without limiting the manner in which Purchaser may
choose to make any public announcement, Purchaser will have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a press release to the Dow Jones News Service.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, Purchaser will extend the Offer to the extent required by Rules 14d-4(c),
14d-6(d) and 14e-1 under the Exchange Act.
Subject to the terms of the Merger Agreement, if, prior to the Expiration
Date, Purchaser should decide to decrease the number of Shares being sought or
to increase or decrease the consideration being offered in the Offer, such
decrease in the number of Shares being sought or such increase or decrease in
the consideration being offered will be applicable to all shareholders whose
Shares are accepted for payment pursuant to the Offer and, if at the time notice
of any such decrease in the number of Shares being sought or such increase or
decrease in the consideration being offered is first published, sent or given to
holders of such Shares, the Offer is scheduled to expire at any time earlier
than the period ending on the tenth business day from and including the date
that such notice is first so published, sent or given, the Offer will be
extended at least until the expiration of such ten business day period. For
purposes of the Offer, a "business day" means any day other than a Saturday,
Sunday or Federal holiday and consists of the time period from 12:01 a.m.
through 12:00 Midnight, New York City time.
The Company has provided Purchaser with the Company's shareholder list and
security position listings for the purpose of disseminating the Offer to holders
of Shares. This Offer to Purchase, the related Letter of Transmittal, and other
relevant materials, will be mailed to record holders of Shares whose names
appear on the Company's shareholder list and will be furnished, for subsequent
transmittal to beneficial owners of Shares, to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the shareholder list or, if applicable, who are listed as
participants in a clearing agency's security position listing.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Purchaser will purchase, by accepting for payment, and will pay
for, all Shares validly tendered prior to the Expiration Date (and not properly
withdrawn in accordance with "Section 4 -- Withdrawal Rights") promptly after
the later to occur of (i) the Expiration Date and (ii) the satisfaction or
waiver of the conditions set forth in "Section 14 -- Conditions of the Offer."
Subject to applicable rules of the Commission and the terms of the Merger
Agreement, Purchaser expressly reserves the right, in its discretion, to delay
acceptance for payment of, or payment for, Shares pending receipt of any
regulatory approvals specified in "Section 15 -- Regulatory Approvals; State
Takeover Laws."
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of (i) the certificates
evidencing such Shares (the "Share Certificates") or timely confirmation of a
book-entry transfer (a "Book-Entry Confirmation") of such Shares, if such
procedure is available, into the Depositary's account at The Depository Trust
Company (the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in "Section 3 -- Procedures for Tendering Shares," (ii) the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed and
(iii) any other documents required by the Letter of Transmittal.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, tendered Shares if, as and when Purchaser gives
oral or written notice to the Depositary of
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Purchaser's acceptance of such Shares for payment. Payment for Shares accepted
pursuant to the Offer will be made by deposit of the purchase price therefor
with the Depositary, which will act as agent for tendering shareholders for the
purpose of receiving payments from Purchaser and transmitting payments to such
tendering shareholders. Under no circumstances will interest on the purchase
price for Shares be paid by Purchaser, regardless of any extension of the Offer
or any delay in making such payment.
If any tendered Shares are not accepted for payment for any reason pursuant
to the terms and conditions of the Offer, or if Share Certificates are submitted
evidencing more Shares than are tendered, Share Certificates evidencing
unpurchased Shares will be returned, without expense to the tendering
shareholder (or, in the case of Shares tendered by book-entry transfer into the
Depositary's account at the Book-Entry Transfer Facility pursuant to the
procedure set forth in "Section 3 -- Procedures for Tendering Shares," such
Shares will be credited to an account maintained at the Book-Entry Transfer
Facility), as promptly as practicable following the expiration, termination or
withdrawal of the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration to
be paid per Share pursuant to the Offer, Purchaser will pay such increased
consideration for all such Shares purchased pursuant to the Offer, whether or
not such Shares were tendered prior to such increase in consideration.
Purchaser reserves the right to transfer or assign, in whole at any time,
or in part from time to time, to one or more direct or indirect subsidiaries of
Parent, the right to purchase all or any portion of the Shares tendered pursuant
to the Offer, but any such transfer or assignment will not relieve Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering shareholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
3. PROCEDURES FOR TENDERING SHARES.
Valid Tender of Shares. In order for Shares to be validly tendered pursuant
to the Offer, either (i) the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message, and any other
required documents, must be received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase prior to the Expiration
Date and either the Share Certificates evidencing tendered Shares must be
received by the Depositary at such address or Shares must be tendered pursuant
to the procedure for book-entry transfer described below and a Book-Entry
Confirmation must be received by the Depositary, in each case prior to the
Expiration Date, or (ii) the tendering shareholder must comply with the
guaranteed delivery procedures described below.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT
THE OPTION AND RISK OF THE TENDERING SHAREHOLDER, AND THE DELIVERY WILL BE
DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase, and any
financial institution that is a participant in the Book-Entry Transfer
Facility's system may make book-entry delivery of Shares by causing the
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account at the Book-Entry Transfer Facility in accordance with the Book-Entry
Transfer Facility's procedures for transfer. However, although delivery of
Shares may be effected through book-entry transfer at the Book-Entry Transfer
Facility, the Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, and any other required documents, must, in any case, be
transmitted to and received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase prior to the Expiration Date or the
tendering shareholder must comply with the guaranteed delivery procedures
described below. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
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Signature Guarantee. Signatures on all Letters of Transmittal must be
guaranteed by a participant in the Securities Transfer Association Medallion
Program or the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each, an "Eligible Institution"), unless
the Shares tendered thereby are tendered (i) by a registered holder of Shares
who has not completed either the box entitled "Special Delivery Instructions" or
the box entitled "Special Payment Instructions" on the Letter of Transmittal, or
(ii) for the account of an Eligible Institution. See Instruction 1 of the Letter
of Transmittal.
If a Share Certificate is registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made, or a Share
Certificate not accepted for payment or not tendered is to be returned, to a
person other than the registered holder(s), then the Share Certificate must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear on the Share
Certificate, with the signature(s) on such Share Certificate or stock powers
guaranteed as described above. See Instructions 1 and 5 of the Letter of
Transmittal.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's Share Certificates are not immediately
available or time will not permit all required documents to reach the Depositary
prior to the Expiration Date or the procedure for book-entry transfer cannot be
completed on a timely basis, such Shares may nevertheless be tendered if all the
following conditions are satisfied:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Purchaser herewith, is
received by the Depositary, as provided below, prior to the Expiration
Date; and
(iii) in the case of a guarantee of Shares, the Share Certificates for
all tendered Shares, in proper form for transfer, or a Book-Entry
Confirmation, together with a properly completed and duly executed Letter
of Transmittal (or manually signed facsimile thereof) with any required
signature guarantee and any other documents required by such Letter of
Transmittal, are received by the Depositary within three New York Stock
Exchange ("NYSE") trading days after the date of execution of the Notice of
Guaranteed Delivery.
Any Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Depositary and must include a
guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares purchased
pursuant to the Offer will, in all cases, be made only after timely receipt by
the Depositary of (i) the Share Certificates evidencing such Shares, or a
Book-Entry Confirmation of the delivery of such Shares, if available, (ii) a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) and (iii) any other documents required by the Letter of
Transmittal.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tendered Shares pursuant to any of the procedures described above will be
determined by Purchaser, in its sole discretion, whose determination will be
final and binding on all parties. Purchaser reserves the absolute right to
reject any or all tenders of any Shares determined by it not to be in proper
form or if the acceptance for payment of, or payment for, such Shares may, in
the opinion of Purchaser's counsel, be unlawful. Purchaser also reserves the
absolute right, in its sole discretion, to waive any of the conditions of the
Offer or any defect or irregularity in any tender with respect to Shares of any
particular shareholder, whether or not similar defects or irregularities are
waived in the case of other shareholders. No tender of Shares will be deemed to
have been validly made until all defects and irregularities have been cured or
waived.
Purchaser's interpretation of the terms and conditions of the Offer
(including the Letter of Transmittal and the instructions thereto) will be final
and binding. None of Parent, Purchaser, the Dealer Manager, the
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Depositary, the Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in tenders or will incur any
liability for failure to give any such notification.
Appointment as Proxy. By executing a Letter of Transmittal as set forth
above, a tendering shareholder irrevocably appoints designees of Purchaser as
such shareholder's proxies, each with full power of substitution, to the full
extent of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by Purchaser (and any and all non-cash
dividends, distributions, rights, other Shares, or other securities issued or
issuable in respect of such Shares on or after September 15, 1998). All such
proxies will be considered coupled with an interest in the tendered Shares. This
appointment will be effective if, when, and only to the extent that, Purchaser
accepts such Shares for payment pursuant to the Offer. Upon such acceptance for
payment, all prior proxies given by such shareholder with respect to such Shares
and other securities will, without further action, be revoked, and no subsequent
proxies may be given. The designees of Purchaser will, with respect to the
Shares and other securities for which the appointment is effective, be empowered
to exercise all voting and other rights of such shareholder as they in their
sole discretion may deem proper at any annual, special, adjourned or postponed
meeting of the Company's shareholders, by written consent or otherwise, and
Purchaser reserves the right to require that, in order for Shares or other
securities to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Shares Purchaser must be able to exercise full
voting rights with respect to such Shares, except as otherwise limited by
applicable Pennsylvania Law.
Backup Withholding. To prevent federal income tax "backup withholding" with
respect to payment to certain shareholders of the purchase price of Shares
purchased pursuant to the Offer, each such shareholder must provide the
Depositary with such shareholder's correct taxpayer identification number
("TIN") and certify that such shareholder is not subject to federal income tax
backup withholding by completing the substitute Form W-9 in the Letter of
Transmittal. If backup withholding applies with respect to a shareholder, the
Depositary is required to withhold 31% of any payments made to such shareholder.
Certain shareholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign shareholders should complete and sign the main signature
form and a Form W-8, certificate of foreign status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See
Instruction 9 of the Letter of Transmittal.
Acceptance of Shares. Purchaser's acceptance for payment of Shares tendered
pursuant to the Offer will constitute a binding agreement between the tendering
shareholder and Purchaser upon the terms and subject to the conditions of the
Offer.
4. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer are irrevocable except that
such Shares may be withdrawn at any time prior to the Expiration Date and,
unless theretofore accepted for payment by Purchaser pursuant to the Offer, may
also be withdrawn at any time after November 20, 1998. If Purchaser extends the
Offer, is delayed in its acceptance for payment of Shares or is unable to accept
Shares for payment pursuant to the Offer for any reason, then, without prejudice
to Purchaser's rights under the Offer, the Depositary may, nevertheless, on
behalf of Purchaser, retain tendered Shares, and such Shares may not be
withdrawn except to the extent that tendering shareholders are entitled to
withdrawal rights as described in this Section 4. Any such delay will be by an
extension of the Offer to the extent required by law.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder, if different from that of the person who tendered such
Shares. If Share Certificates evidencing Shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then, prior to the physical
release of such Share Certificates, the serial numbers shown on such Share
Certificates must be submitted to the Depositary and the signature(s) on the
notice of withdrawal must be guaranteed by an Eligible Institution, unless such
Shares have been tendered for the account of an Eligible Institution. If Shares
have been tendered pursuant to the procedure for book-entry transfer as set
forth in "Section 3 -- Procedures for Tendering Shares," any notice of
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withdrawal must also specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination will be final and binding. None of Parent, Purchaser, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Shares properly withdrawn will thereafter be deemed to not
have been validly tendered for purposes of the Offer. However, withdrawn Shares
may be re-tendered at any time prior to the Expiration Date by following one of
the procedures described in "Section 3 -- Procedures for Tendering Shares."
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The receipt of cash for Shares pursuant to the Offer or in the Merger will
be a taxable transaction for Federal income tax purposes and may also be a
taxable transaction under applicable state, local or foreign tax laws. In
general, a shareholder will recognize gain or loss for Federal income tax
purposes equal to the difference between the amount of cash received in exchange
for the Shares sold and the shareholder's adjusted tax basis in such Shares.
Assuming the Shares constitute capital assets in the hands of the shareholder,
such gain or loss will be capital gain or loss and will be long term capital
gain or loss if the holder has held the Shares for more than one year at the
time of the sale. Gain or loss will be calculated separately for each block of
Shares tendered pursuant to the Offer.
The foregoing discussion may not be applicable to certain types of
shareholders, including shareholders who acquired Shares pursuant to the
exercise of stock options or otherwise as compensation, individuals who are not
citizens or residents of the United States and foreign corporations, or entities
that are otherwise subject to special tax treatment under the Internal Revenue
Code of 1986, as amended (the "Code").
A shareholder (other than certain exempt shareholders including, among
others, all corporations and certain foreign individuals) that tenders Shares
may be subject to 31% backup withholding unless the shareholder provides its TIN
and certifies that such number is correct or properly certifies that it is
awaiting a TIN and certifies as to no loss of exemption from backup withholding
and otherwise complies with the applicable requirements of the backup
withholding rules. A shareholder that does not furnish its correct TIN or that
does not otherwise establish a basis for exemption from backup withholding may
be subject to a penalty imposed by the Internal Revenue Service ("IRS"). Each
shareholder should complete and sign the Substitute Form W-9 included as part of
the Letter of Transmittal so as to provide the information and certification
necessary to avoid backup withholding.
If backup withholding applies to a shareholder, the Depositary is required
to withhold 31% from payments to such shareholder. Backup withholding is not an
additional tax. Rather, the amount of backup withholding can be credited against
the Federal income tax liability of the person subject to the backup
withholding, provided that the required information is given to the IRS. If
backup withholding results in an overpayment of tax, a refund can be obtained by
the shareholder upon filing an income tax return.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND IS BASED UPON PRESENT LAW. SHAREHOLDERS ARE URGED TO
CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES OF THE
OFFER AND THE MERGER TO THEM, INCLUDING THE APPLICATION AND EFFECT OF THE
ALTERNATIVE MINIMUM TAX, AND STATE, LOCAL AND FOREIGN TAX LAWS.
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6. PRICE RANGE OF SHARES; DIVIDENDS.
The Shares are quoted on the NYSE under the symbol "DRV." The following
table sets forth, for the quarters indicated, the high and low sales prices per
Share on the NYSE as reported in publicly available sources for each of the
quarters indicated.
SALES PRICES
----------------------------------
HIGH LOW
-------------- ------------
1996:
First Quarter...................................... $13 3/4 $11 1/4
Second Quarter..................................... $14 7/8 $12 3/4
Third Quarter...................................... $14 5/8 $12
Fourth Quarter..................................... $15 3/4 $12 1/2
1997
First Quarter...................................... $14 1/8 $10 1/8
Second Quarter..................................... $11 3/4 $ 8 3/4
Third Quarter...................................... $11 15/16 $10
Fourth Quarter..................................... $12 9/16 $ 9 1/2
1998
First Quarter...................................... $11 5/8 $ 9 3/4
Second Quarter..................................... $12 $ 9
Third Quarter through September 14, 1998........... $ 9 5/8 $ 6 1/2
On September 14, 1998, the last full trading day prior to the public
announcement of the execution of the Merger Agreement, the reported closing
sales price of the Shares on the NYSE was $6 15/16 per Share. On September 18,
1998, the last full trading day prior to the date of this Offer to Purchase, the
reported closing sales price of the Shares on the NYSE was $12 7/16 per Share.
SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
The Company has not paid a dividend on the Shares since April, 1987. In the
Merger Agreement, the Company has agreed that it will not declare, set aside or
pay any dividends on or make other distributions in respect of any shares of its
capital stock (other than regularly scheduled dividends on the Preference Stock
in accordance with the terms of the Preference Stock). Moreover, under certain
loan agreements, the Company would be required to obtain the lenders' consent
prior to paying dividends in excess of certain amounts.
7. CERTAIN INFORMATION CONCERNING THE COMPANY.
The information concerning the Company contained in this Offer to Purchase,
including financial information, has been taken from or based upon publicly
available documents and records on file with the Commission and other public
sources. Neither Parent nor Purchaser assumes any responsibility for the
accuracy or completeness of the information concerning the Company contained in
such documents and records or for any failure by the Company to disclose events
which may have occurred or may affect the significance or accuracy of any such
information but which are unknown to Parent or Purchaser.
The Company is a Pennsylvania corporation and its principal executive
offices are located at 11 Stanwix Street, Pittsburgh, Pennsylvania 15222. The
telephone number of the Company at such offices is (412) 995-5535. The Company,
through a wholly owned subsidiary, produces lime for utility, metallurgical,
pulp and paper, municipal, construction and miscellaneous chemical and
industrial applications. The Company also develops and markets related
environmental technologies, products and services.
Financial Information. Set forth below is certain selected consolidated
financial information relating to the Company and its subsidiaries which has
been excerpted or derived from the financial statements contained in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997
(the "1997 Form 10-K") and the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998 (the "June 30, 1998 Form 10-Q"). More comprehensive
financial information is included in such reports and other
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documents filed by the Company with the Commission. The financial information
that follows is qualified in its entirety by reference to such reports and other
documents, including the financial statements and related notes contained
therein. The 1997 Form 10-K, the June 30, 1998 Form 10-Q and other documents may
be examined and copies may be obtained from the offices of the Commission in the
manner set forth below.
DRAVO CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
------------------ --------------------------------
1998 1997 1997 1996 1995
---- ---- ---- ---- ----
Income Statement Data
Revenue................................... $84,257 $80,059 $162,476 $158,133 $146,067
Gross profit.............................. 20,905 19,300 40,835 39,968 36,526
Earnings from operations.................. 10,948 8,519 16,971 18,998 15,289
Other income (expense), net............... (3,125) (2,723) (5,928) (4,870) (3,968)
Earnings before taxes..................... 7,823 5,796 11,043 14,128 11,321
Net earnings.............................. 6,376 5,386 15,116 14,128 10,981
Preference dividends...................... 1,255 1,259 2,517 2,529 2,535
Per share information
Earnings per share -- diluted............. $ .35 $ .28 $ .85 $ .78 $ .57
Number of shares used in computation...... 14,758 14,851 14,835 14,894 14,875
AT DECEMBER 31,
AT JUNE 30, --------------------------------
1998 1997 1996 1995
----------- ---- ---- ----
Balance Sheet Data
Total current assets.............................. $ 41,342 $ 45,655 $ 43,018 $ 43,072
Total assets...................................... 249,556 255,230 225,409 213,261
Current portion of long-term notes................ 9,767 9,736 6,166 6,099
Total current liabilities......................... 41,198 41,745 34,541 33,307
Long-term notes................................... 64,549 74,396 63,535 64,292
Redeemable preference stock....................... 15,000 15,000 20,000 20,000
Total shareholders' equity........................ 114,845 109,666 93,915 79,855
The Company is subject to the information and reporting requirements of the
Exchange Act and is required to file reports and other information with the
Commission relating to its business, financial condition and other matters.
Information, as of particular dates, concerning the Company's directors and
officers, their remuneration, stock options granted to them, the principal
holders of the Company's securities, any material interests of such persons in
transactions with the Company and other matters is required to be disclosed in
proxy statements distributed to the Company's shareholders and filed with the
Commission. These reports, proxy statements and other information should be
available for inspection at the public reference facilities of the Commission
located in Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
also should be available for inspection and copying at prescribed rates at the
following regional offices of the Commission: Seven World Trade Center, New
York, New York 10048; and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of this material may also be obtained by mail, upon payment of the
Commission's customary fees, from the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also maintains an Internet
web site at http://www.sec.gov that contains reports, proxy statements and other
information. Reports, proxy statements and other information concerning the
Company should also be available for inspection at the offices of the NYSE.
Except as otherwise noted in this Offer to Purchase, all of the information with
respect to the Company and its affiliates set forth in this Offer to Purchase
has been derived from publicly available information.
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8. CERTAIN INFORMATION CONCERNING PURCHASER, PARENT, CARMEUSE NA, CARFIN,
LVI AND CARMEUSE SA.
Purchaser. Purchaser, a newly incorporated Pennsylvania corporation, has
not conducted any business other than in connection with the Offer and the
Merger Agreement. All of the issued and outstanding shares of capital stock of
Purchaser are beneficially owned by Parent. The principal executive offices of
Purchaser are located at 390 E. Joe Orr Road, Chicago Heights, Illinois 60411.
The telephone number of Purchaser at such offices is (708) 757-6201.
Parent. Parent is a Delaware corporation. All of the issued and outstanding
shares of capital stock of Parent are beneficially owned by Carmeuse NA. The
principal executive offices of Parent are located at 390
E. Joe Orr Road, Chicago Heights, Illinois 60411. The telephone number of Parent
at such offices is (708) 757-6201. Parent is the principal holding company for
the U.S. operations of LVI.
Carmeuse NA. Carmeuse North America, B.V. ("Carmeuse NA") is a Dutch
corporation. All of the issued and outstanding shares of capital stock of
Carmeuse NA are beneficially owned by Carfin. The principal executive offices of
Carmeuse NA are located at Nijverheidsstraat 34, P.O. Box 648, 2800 AP Gouda,
The Netherlands. The telephone number of Carmeuse NA at such offices is
011-31-182-527-255. Carmeuse NA is a holding company for Parent and certain
other subsidiaries of LVI.
Carfin. Carfin S.A. ("Carfin") is a Belgian corporation, 99.9% of the
issued and outstanding shares of capital stock of which are beneficially owned
by LVI. The principal executive offices of Carfin are located at Parc
Scientifique Athena, Boulevard de Lauzelle 65, 1348 Louvain-la-Neuve Nord,
Belgium. The telephone number of Carfin at such offices is 011-32-10-48-1600.
Carfin is a holding company for Carmeuse NA, the parent company of Parent, and
certain other subsidiaries of LVI.
LVI. LVI is a Dutch corporation. The principal executive offices of LVI are
located at Nijverheidsstraat 34, P.O. Box 648, 2800 AP Gouda, The Netherlands.
The telephone number of LVI at such offices is 011-31-182-527-255. Through its
subsidiaries, LVI is a leading worldwide manufacturer and marketer of limestone,
lime and lime-related products.
Carmeuse SA. Carmeuse SA is a Belgian corporation and an affiliate of
Parent and Purchaser, 99.9% of the issued and outstanding shares of capital
stock of which are beneficially owned by LVI. The principal executive offices of
Carmeuse SA are located at Parc Scientifique Athena, Boulevard de Lauzelle 65,
1348 Louvain-la-Neuve Nord, Belgium. The telephone number of Carmeuse SA at such
offices is 011-32-10-48-1600. Carmeuse SA is the principal European operating
company of LVI and has guaranteed the obligations of Parent and Purchaser under
the Merger Agreement.
None of Purchaser, Parent or LVI is subject to the informational and
reporting requirements of the Exchange Act. However, in connection with the
Offer, Purchaser and Parent have filed a Tender Offer Statement on Schedule
14D-1 (the "Schedule 14D-1") with the Commission. The Schedule 14D-1 should be
available for inspection and copies may be obtained from the Commission in the
same manner as set forth for the Company in Section 7.
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Set forth below are certain selected consolidated financial data with
respect to Parent and its subsidiaries for Parent's last three fiscal years,
excerpted or derived from audited financial statements and, for Parent's fiscal
quarter ended June 30, 1998, excerpted or derived from unaudited financial
statements. Parent's audited financial statements have been filed with the
Commission as an exhibit to the Schedule 14D-1. Parent's audited financial
statements have been prepared in accordance with generally accepted accounting
principles; however, because Parent is not a reporting company under the
Exchange Act, its financial statements have not been prepared in accordance with
the Commission's Regulation S-X. The financial information summary set forth
below is qualified in its entirety by reference to the Schedule 14D-1 which has
been filed with the Commission and all the financial information and related
notes contained therein.
CARMEUSE LIME, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS)
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------------- ----------------------------
1998 1997 1997 1996 1995
---- ---- ---- ---- ----
Income Statement Data
Revenue..................................... $62,175 $56,663 $124,550 $80,695 $91,727
Gross profit................................ 8,633 7,100 16,665 6,667 5,982
Earnings (loss) from operations............. 4,428 2,699 8,512 308 (2,127)
Other income (expense), net................. (2,289) (2,631) (4,845) (316) (841)
Earnings (loss) before taxes................ 2,139 68 3,667 (8) (2,968)
Net earnings (loss)......................... 1,343 42 3,511 (130) (1,820)
AT DECEMBER 31,
AT JUNE 30, -------------------------------
1998 1997 1996 1995
----------- ---- ---- ----
Balance Sheet Data
Total current assets............................... $ 42,569 $ 46,345 $ 45,791 $35,927
Total assets....................................... 110,297 112,755 103,047 44,902
Total current liabilities.......................... 18,594 23,843 23,301 19,269
Long-term debt..................................... 61,000 70,000 64,500 12,000
Total shareholder's equity......................... 27,615 16,230 12,683 12,790
The name, citizenship, business address, principal occupation or employment
and five-year employment history for each of the directors and executive
officers of Purchaser, Parent and LVI are set forth in Schedule I hereto.
Except as described in this Offer to Purchase, (i) none of Carmeuse SA,
LVI, Carfin, Carmeuse NA, Purchaser, Parent or, to the best knowledge of
Purchaser and Parent, any of the persons listed in Schedule I to this Offer to
Purchase or any associate or majority-owned subsidiary of Carmeuse SA, LVI,
Carfin, Carmeuse NA, Purchaser, Parent or any of the persons so listed (other
than William S. Brown III who currently beneficially owns 125 Shares, an
insignificant percentage of the outstanding Shares) beneficially owns or has any
right to acquire, directly or indirectly, any Shares and (ii) none of Carmeuse
SA, LVI, Carfin, Carmeuse NA, Purchaser, Parent nor, to the best knowledge of
Purchaser and Parent, any of the persons or entities referred to above nor any
director, executive officer or subsidiary of any of the foregoing has effected
any transaction in the Shares during the past 60 days. Except as provided in the
Merger Agreement and as otherwise described in this Offer to Purchase, none of
Carmeuse SA, LVI, Carfin, Carmeuse NA, Purchaser, Parent or, to the best
knowledge of Purchaser and Parent, any of the persons listed in Schedule I to
this Offer to Purchase, has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Company, including, but not limited to, any contract, arrangement, understanding
or relationship concerning the transfer or voting of such securities, joint
ventures, loan or option arrangements, puts or calls, guaranties of loans,
guaranties against loss or the giving or withholding of proxies. Except as set
forth in this Offer to Purchase, since January 1, 1995, none of Carmeuse SA,
LVI, Carfin, Carmeuse NA,
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Purchaser, Parent or, to the best knowledge of Purchaser and Parent, any of the
persons listed on Schedule I hereto, has had any business relationship or
transaction with the Company or any of its executive officers, directors or
affiliates that is required to be reported under the rules and regulations of
the Commission applicable to the Offer. Except as set forth in this Offer to
Purchase, since January 1, 1995, there have been no contacts, negotiations or
transactions between any of Carmeuse SA, LVI, Carfin, Carmeuse NA, Purchaser,
Parent, or any of their respective subsidiaries, or, to the best knowledge of
Purchaser and Parent, any of the persons listed in Schedule I to this Offer to
Purchase, on the one hand, and the Company or its affiliates, on the other hand,
concerning a merger, consolidation or acquisition, tender offer or other
acquisition of securities, an election of directors or a sale or other transfer
of a material amount of assets.
9. SOURCE AND AMOUNT OF FUNDS.
The amount required to fund the purchase of Shares tendered in the Offer,
consummate the Merger, refinance existing indebtedness of the Company and to pay
all related fees and expenses of the transaction, is estimated to be
approximately $311 million.
Purchaser plans to obtain the necessary funds through capital contributions
made by Parent. Parent plans to obtain the funds for such capital contributions
from advances made by Carmeuse SA pursuant to a loan agreement dated September
18, 1998 between Parent and Carmeuse SA (the "Intercompany Loan Agreement"),
which agreement is incorporated herein by reference and a copy of which has been
filed with the Commission as an Exhibit to the Schedule 14D-1. Pursuant to the
Intercompany Loan Agreement, Parent will be permitted to borrow an amount up to
US $350 million. Interest is payable at a rate equal to the London Interbank
Offered Rate ("LIBOR") plus 0.75%, for interest periods of one, three or six
months. Amounts borrowed pursuant to the Intercompany Loan Agreement, together
with accrued and unpaid interest, are required to be repaid in six months.
Carmeuse SA plans to obtain the funds for advances made to Parent pursuant to
the Intercompany Loan Agreement from borrowings under the Lafarge Facility (as
hereinafter defined) and the BBL Facility (as hereinafter defined).
LVI and Lafarge S.A. (Lafarge S.A., together with its affiliates,
"Lafarge"), a French corporation, have entered into a Memorandum of
Understanding dated June 3, 1998 (the "Memorandum of Understanding") pursuant to
which they have agreed to establish a joint venture (the "Joint Venture") to
which each party has agreed to contribute its North American lime operations. As
described below, LVI and Lafarge currently intend that, following establishment
of the Joint Venture, the business of the Company will be contributed by LVI to
the Joint Venture. See "Section 10 -- Purpose of the Offer; Plans for the
Company; Merger Agreement; and Other Agreements." Consummation of the Offer is
not subject to the timing or the consummation of the Joint Venture.
Pursuant to a letter dated September 14, 1998 from Olivier Legrain, Deputy
General Manager of Lafarge, to Dominique Collinet, Chairman of the Board of
Directors of LVI, which letter is incorporated herein by reference and a copy of
which has been filed with the Commission as an Exhibit to the Schedule 14D-1,
Lafarge has agreed to provide financing to Carmeuse SA for up to 40% of the
funds required to consummate the Offer and the Merger, not to exceed US$124
million (the "Lafarge Facility"). Under the Lafarge Facility, Carmeuse SA is not
required to pay interest on amounts borrowed unless LVI and Lafarge are unable
to establish the Joint Venture. If LVI and Lafarge are unable for any reason to
establish the Joint Venture, Carmeuse SA has agreed (i) to pay interest on the
amounts borrowed at a rate equal to LIBOR plus 0.25%, determined on the basis of
three month interest periods, (ii) to repay such amounts at any time upon six
months prior notice and, in any event, no later than December 31, 1999, and
(iii) to pledge, or cause to be pledged, the shares of common stock of the
Company or equivalent security, equivalent to the value of the credit, until
such amounts are repaid.
In connection with the Offer and the Merger, Bank Brussels Lambert SA
("BBL") has agreed to provide credit to Carmeuse SA in the amount of US $230
million (the "BBL Facility") pursuant to a letter dated September 14, 1998 from
BBL to Carmeuse SA, which letter is incorporated herein by reference and a copy
of which has been filed with the Commission as an Exhibit to the Schedule 14D-1.
Proceeds of the BBL Facility will be used by Carmeuse SA to advance funds to
Parent pursuant to the Intercompany Loan Agreement, which in turn will be used
by Parent to finance the purchase of Shares pursuant to the Offer and the
Merger.
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Under the BBL Facility, amounts may be borrowed by Carmeuse SA for a period
ending on December 14, 1998, which period may be renewed at the option of
Carmeuse SA for an additional three month period ending on March 14, 1999. Full
repayment of amounts borrowed is required at the end of the three or six month
period, as the case may be. Under the BBL Facility, interest rates for
outstanding loans are based upon three month LIBOR plus 0.25%.
It is anticipated that the indebtedness incurred by Carmeuse SA under the
BBL Facility will be refinanced with permanent financing. It is anticipated that
the indebtedness incurred by Carmeuse SA under the Lafarge Facility will be
assumed by, or converted into capital in, the Joint Venture when established. If
LVI and Lafarge are unable to establish the Joint Venture and the indebtedness
incurred under the Lafarge Facility is required to be repaid, it is anticipated
that such indebtedness will be refinanced with permanent financing. In each
case, no final decisions have been made concerning the amount or terms of such
permanent financing. Such decisions, when made, will be based on a review from
time to time of the advisability of particular actions, as well as on prevailing
interest rates and financial and other economic conditions.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY. INFORMATION SET
FORTH BELOW REGARDING THE COMPANY, OR DISCUSSIONS TO WHICH REPRESENTATIVES OF
LVI, PARENT AND PURCHASER WERE NOT PARTICIPANTS, WAS PROVIDED BY THE COMPANY.
In April, 1998, Parent learned that the Company was receptive to
acquisition proposals. Following informal telephone conversations between Mr.
Brown, then President of Carmeuse North American Group, and Mr. Carl A. Gilbert,
President and Chief Executive Officer of the Company, Parent was invited to
conduct due diligence of the Company and its operations. On April 29, 1998,
Parent and the Company entered into the Confidentiality Agreement (as
hereinafter defined).
On May 14 and 15, 1998, members of Parent's senior management and legal and
accounting representatives conducted a due diligence review of certain
non-public information regarding the Company at the offices of the Company's
attorneys and participated in due diligence discussions with the Company's
senior officers, legal counsel and accountants. Subsequent to the due diligence
meetings, informal discussions continued between senior officers of Parent and
the Company during which Parent expressed continued interest in the Company;
however, Parent and the Company did not engage in substantive discussions
regarding the terms and conditions of a potential transaction.
Following the execution of the Memorandum of Understanding with Lafarge,
Parent renewed its discussions with the Company. On August 6, 1998, Mr.
Dominique Collinet, President of LVI, and Mr. Alain R. Crouy, President and
Chief Executive Officer of Lafarge, delivered a letter to Mr. Arthur E. Byrnes,
Chairman of the Board of the Company, setting forth the interest of LVI and
Lafarge to acquire all of the outstanding shares of capital stock of the Company
for $13 per share in cash, subject to negotiation of a definitive agreement,
approval of the transaction by the Board of Directors of each party and certain
other conditions. Messrs. Collinet and Crouy requested a meeting to discuss more
fully the proposed transaction.
On August 10, 1998, Mr. Gilbert indicated to Mr. Brown that the Company
desired to pursue negotiations with Parent regarding a potential transaction and
Mr. Brown requested an update to the previous due diligence conducted by Parent.
On August 11, 1998, the Confidentiality Agreement was amended to include
Lafarge.
From August 27 through September 1, 1998, senior management of Parent and
Lafarge met with senior management and legal counsel of the Company to conduct
further due diligence, including an investigation of the financial performance
of the Company since the May, 1998 due diligence meetings. In addition, a
representative of Lafarge conducted a physical inspection of Company facilities.
Thereafter, on September 2 and 3, 1998, Parent and the Company, together with
their legal and financial advisors, conducted negotiations regarding the terms
of a proposed tender offer and merger.
On September 8, 1998, Carmeuse SA's Board of Directors authorized the
proposed transaction, on September 11, 1998, Parent's Board of Directors
authorized the proposed transaction, and on September 14, 1998, Lafarge
authorized the Lafarge Facility. In the afternoon of September 14, 1998,
immediately prior to a meeting of the Company's Board of Directors, Mr. Jacques
Germay, Chairman of the Board of Parent,
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delivered a letter to the Company's Board of Directors reasserting Parent's
intent to commence a tender offer to purchase all of the outstanding shares of
common stock of the Company for a purchase price of $13 per share in cash upon
the terms and conditions set forth in the form of the Merger Agreement
previously negotiated by the parties and their respective counsel. The letter
further indicated that the Boards of Directors of Purchaser, Parent and Carmeuse
SA had each approved the tender offer and the Merger Agreement and executed the
Merger Agreement, and enclosed an executed signature page to the Merger
Agreement. The letter also indicated that unless Parent's offer was accepted by
the Company prior to 11:59 p.m. (Pittsburgh time) on September 14, 1998, Parent
would not proceed with its offer.
On September 14, 1998, Mr. Gilbert called Mr. Brown and Mr. Germay to
inform Parent that the Company's Board of Directors unanimously had accepted
Parent's proposal, authorized the execution of the Merger Agreement and agreed
to recommend that the Company's shareholders accept the Offer and tender their
Shares pursuant thereto. The Merger Agreement was executed by the Company as of
September 15, 1998, and on September 15, 1998, Parent and the Company issued a
joint press release announcing the Offer and the execution of the Merger
Agreement.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; MERGER AGREEMENT; AND
OTHER AGREEMENTS.
Purpose of the Offer. The purpose of the Offer, the Merger and the Merger
Agreement is to enable Parent to acquire control of the Board and all of the
Shares. Upon consummation of the Merger, the Company will become a wholly owned
subsidiary of Parent. The Offer is being made pursuant to the Merger Agreement.
Plans for the Company. As promptly as practicable following the purchase of
and payment for Shares representing a majority of the outstanding Shares of
Common Stock, on a fully diluted basis, under the Offer, Parent intends (i) to
exercise its right under the Merger Agreement to designate such number of
directors for the Board as it is then entitled to designate and (ii) cause a
merger of Purchaser and the Company under Pennsylvania Law.
It is expected that initially following the Merger, except as set forth
below, the business and operations of the Company will be conducted in a manner
substantially similar to how they are conducted currently.
Pursuant to the Memorandum of Understanding, LVI and Lafarge have agreed to
establish a Joint Venture to which LVI and Lafarge will contribute each of their
businesses within North America relating to lime, dolomite and limestone, but
not including construction, buildings and public works (the "Limestone
Businesses"). In each case, the Limestone Businesses to be contributed will
include title to deposits and quarries, title to industrial extraction and
production facilities, permits and authorizations to operate, production
quantities, customers, personnel, and all other assets required by the Joint
Venture to operate such business. The Limestone Businesses will also include the
limestone business of each subsidiary in which either party owns a controlling
interest. Pursuant to the Memorandum of Understanding, each party has agreed to
conduct all of its Limestone Businesses exclusively through the Joint Venture.
The Memorandum of Understanding provides that LVI will own 60% of the Joint
Venture and Lafarge will own 40% of the Joint Venture. If, following
contribution by either party of its Limestone Businesses, such party owns less
than its anticipated percentage of the Joint Venture, such party may be required
to make additional contributions in cash in order to achieve the agreed
percentage. LVI and Lafarge currently anticipate that the Joint Venture will be
established following receipt of all necessary regulatory approvals, including
expiration of the applicable waiting period under the HSR Act. Following
establishment of the Joint Venture, and consistent with the Memorandum of
Understanding, LVI plans to cause to be contributed to the Joint Venture all of
the equity interest in or assets of Parent, including its equity interest in or
assets of Purchaser, or, following the Merger, the Company.
Purchaser and Parent have no present plans regarding the Preference Stock,
but prior to the Merger, may engage in discussions with the holders of the
Preference Stock regarding various alternatives including the possible purchase
of the Preference Stock. If those discussions do not result in a satisfactory
resolution, then following the Merger, the Company will consider what, if any,
rights it may exercise under the terms of the Preference Stock and applicable
law.
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Merger Agreement. The following is a summary of certain provisions of the
Merger Agreement. The summary is qualified in its entirety by reference to the
full text of the Merger Agreement which is incorporated herein by reference and
a copy of which has been filed with the Commission as an exhibit to the Schedule
14D-1. The Merger Agreement may be examined and copies may be obtained at the
place and in the manner set forth in "Section 7 -- Certain Information
Concerning the Company" of this Offer to Purchase.
The Offer. The Merger Agreement provides that Purchaser will commence the
Offer and that, upon the terms and subject to the prior satisfaction or waiver
of the conditions of the Offer, including the valid tender prior to the
expiration of the Offer of such number of Shares that represents at least a
majority of (i) the actual outstanding Shares on a fully diluted basis and (ii)
the voting power of the Company's outstanding voting securities entitled to vote
on the Merger (the "Minimum Condition"), Purchaser will accept for payment and
pay for Shares tendered as soon as practicable after it is legally permitted to
do so under applicable law. The Merger Agreement provides that, without the
written consent of the Company, Purchaser will not decrease, or change the form
of, the Offer Price, decrease the number of Shares sought, amend the conditions
or impose additional conditions to the Offer, amend any term of the Offer, amend
the Minimum Condition, or amend any other term of the Offer in a manner adverse
to the holders of the Common Stock, except that Purchaser may, at any time, in
its sole discretion extend the Offer. In addition, Purchaser must extend the
Offer for (i) ten business days beyond the initial scheduled expiration date if
the Minimum Condition has not then been satisfied; and (ii) on one or more
occasions, in each instance for up to ten business days beyond the then
scheduled expiration date, but not beyond December 14, 1998, if the Company,
Parent or Purchaser receives a request for additional information with respect
to their filings under the HSR Act, in which case, the Offer will be extended
until the waiting period under the HSR Act is terminated or until the Merger
Agreement is terminated in accordance with its terms.
The Merger. The Merger Agreement provides that subject to the terms and
conditions thereof, and pursuant to Pennsylvania Law, at the Effective Time,
Purchaser will be merged with and into the Company. As a result of the Merger,
the separate corporate existence of Purchaser will cease and the Company will
continue as the Surviving Corporation.
The respective obligations of Parent and Purchaser, on the one hand, and
the Company, on the other hand, to effect the Merger are subject to the
conditions that: (i) the Offer shall have been consummated in accordance with
its terms; (ii) the waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or been terminated; (iii) the Merger
Agreement shall have been adopted by the requisite vote of the Company's
shareholders or, if permitted under Pennsylvania law, by the Board; and (iv) no
preliminary or permanent injunction or other order by any Federal or state court
in the United States which prevents the consummation of the Merger shall have
been issued and remain in effect.
The Merger Agreement provides that at the Effective Time, (a) all issued
and outstanding Shares owned by the Company or any subsidiary of the Company or
by Parent, Purchaser or any other subsidiary of Parent will be canceled, and (b)
each remaining Share issued and outstanding immediately prior to the Effective
Time will be converted into the right to receive the Offer Price, without
interest.
Pursuant to the Merger Agreement, each issued and outstanding share of
common stock of Purchaser will be converted into one fully paid and
non-assessable share of common stock of the Company.
After the Effective Time, the Articles of Incorporation of the Company will
remain the Articles of Incorporation of the Company and the Bylaws of the
Purchaser will be the Bylaws of the Company.
Guarantee. Carmeuse SA has executed the Merger Agreement for the limited
purpose of guaranteeing the obligations of Parent and Purchaser under the Merger
Agreement.
The Company's Board of Directors. The Merger Agreement provides that
promptly upon the purchase by Purchaser, pursuant to the Offer and in accordance
with the Merger Agreement, of such number of Shares as represents a majority of
the Shares, on a fully diluted basis, Purchaser will be entitled to designate
such number of directors, rounded up to the next whole number, on the Board as
is equal to the product of (a) the total number of directors (after giving
effect to the appointment of such directors) and (b) the percentage
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that such number of Shares so purchased bears to the number of Shares
outstanding; provided that in no event will the number of directors be less than
a majority of the total number of directors of the Company. The Company must,
upon written request of Purchaser, increase the size of the Board and/or take
all action necessary to secure the resignations of such number of its incumbent
directors as is necessary to enable Parent's designees to be so elected or
appointed to the Board, and cause Parent's designees to be so elected or
appointed. The Merger Agreement requires that, in the event that Purchaser's
designees are elected or appointed to the Board, until the Effective Time the
Board must have at least two directors who are neither an officer of the Company
or its subsidiaries nor a designee, stockholder, affiliate or associate of
Parent (the "Independent Directors"); provided that if the number of Independent
Directors is reduced below two for any reason, any remaining Independent
Directors will be entitled to fill such vacancy(ies) and if no Independent
Directors remain, the other directors will designate one person who will not be
either an officer of the Company or its subsidiaries or a designee, shareholder,
affiliate or associate of Parent to fill one of the vacancies, which person will
be deemed to be an Independent Director and will be entitled to fill any
remaining vacancy in the number of Independent Directors.
The Merger Agreement further provides that, at the request of Purchaser,
the Company will promptly take all actions required pursuant to Section 14(f) of
the Exchange Act and Rule 14f-1 promulgated thereunder, including mailing to
shareholders as part of the Company's Schedule 14D-9 the information required by
such Section 14(f) and Rule 14f-1, as is necessary to enable Parent's designees
to be elected to the Board. Upon consummation of the Offer and prior to the
Effective Time, any amendment or termination of the Merger Agreement by the
Company, any waiver of any of the Company's rights or exercise of any of its
remedies under the Merger Agreement, any extension of the time for performance
of any of the obligations of Purchaser thereunder, and any other action by the
Company thereunder required to be taken by the Board may be effected only if the
action is approved by the affirmative vote of a majority of the Independent
Directors.
Shareholders Meeting. Pursuant to the Merger Agreement, the Company will,
if required by applicable law in order to consummate the Merger: (i) duly call,
give notice of, convene and hold a special meeting of its shareholders (the
"Special Meeting") as soon as practicable following consummation of the Offer
for the purpose of considering and taking action upon the Merger Agreement and
the Merger; (ii) file with the Commission, and use all reasonable efforts to
have processed to completion by the Commission, a proxy or information statement
relating to the Merger and the Merger Agreement; and (iii) include in the proxy
statement or information statement the recommendation of the Board that
shareholders of the Company vote in favor of the approval of the adoption of the
Merger Agreement. Purchaser has agreed that it will vote, or will cause to be
voted, all of the Shares entitled to vote which are then owned by it or any of
its subsidiaries in favor of the Merger and adoption of the Merger Agreement.
The Merger Agreement provides that in the event Purchaser acquires at least
80% of the outstanding shares of each class of the Company, the parties will
take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after expiration of the Offer, without approval
of the Company's shareholders. In the event Purchaser does not acquire 80% of
the Shares and 80% of each class of the Preference Stock which remains
outstanding, a shareholder vote will be required. No offer is being made
hereunder to acquire the Preference Stock. There can be no assurance that
Purchaser will acquire 80% of the Shares and 80% of each series of the
Preference Stock.
Interim Operations. In the Merger Agreement, the Company has agreed that,
prior to the Effective Time, unless Parent otherwise agrees in writing:
(a) the business of the Company and its subsidiaries will be conducted
only in the ordinary and usual course and in compliance with all applicable
material legal requirements and, to the extent inconsistent therewith, each
of the Company and its subsidiaries will use its commercially reasonable
efforts to preserve its business organization intact and to maintain its
existing relations with customers, suppliers, employees, creditors and
business partners;
(b) the Company will not, directly or indirectly, amend its or any of
its subsidiaries' articles or certificates of incorporation or bylaws or
similar organizational documents;
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(c) the Company will not, and it will not permit any of its
subsidiaries to: (i) (A) declare, set aside or pay any dividend or other
distribution payable in cash, stock or property with respect to the
Company's capital stock or that of any of its subsidiaries (other than
regularly scheduled dividends on the Preference Stock in accordance with
its terms) or (B) redeem, purchase, or otherwise acquire directly or
indirectly any of the Company's capital stock (or options, warrants, calls,
commitments or rights of any kind to acquire any shares of capital stock)
or that of any of its subsidiaries, other than redemptions of Preference
Stock required by the Company's articles of incorporation; (ii) issue,
sell, pledge, dispose of or encumber any additional shares of, or
securities convertible into or exchangeable for, or options, warrants,
calls, commitments or rights of any kind to acquire, any shares of capital
stock of any class of the Company or any of its subsidiaries, other than
common stock issuable upon the exercise of options, or upon the conversion
of the Series B Preference Stock or the Series D Preferred Stock
outstanding on the date of the Merger Agreement; or (iii) split, combine or
reclassify the outstanding capital stock of the Company or any of its
subsidiaries;
(d) the Company will not, and it will not permit any of its
subsidiaries to, acquire or agree to acquire, or dispose of or agree to
dispose of, any material assets other than in the ordinary course of
business, either by purchase, merger, consolidation, sale of shares in any
of its subsidiaries or otherwise;
(e) the Company will not, and it will not permit any of its
subsidiaries to, transfer, lease, license, sell, mortgage, pledge, dispose
of, or encumber any of its owned real property or leased real property
(except for mortgages on such real property existing on the date of the
Merger Agreement) or, other than in the ordinary course of business,
intellectual properties;
(f) neither the Company nor any of its subsidiaries will: (i) grant
any increase in the compensation payable or to become payable by the
Company or any of its subsidiaries to any of its officers, directors or key
employees, except for (A) increases in the ordinary course of business
consistent with past practices or to the extent required by any contract,
and (B) payment immediately prior to consummation of the Offer, of a pro
rata portion of the 1998 target award under the Company's Annual Incentive
Plan for which amounts have been accrued on the Company's financial
statements; or (ii) (A) adopt any new, (B) grant any award under any, or
(C) amend or otherwise increase, or accelerate the payment or vesting of
the amounts payable or to become payable under, any existing employee
benefit or compensation plan other than as contemplated by the Merger
Agreement or in accordance with the provisions of such benefit plan; or
(iii) increase the number of directors of the Company, enter into or modify
or amend any existing employment or severance agreements with, or grant any
severance or termination rights to any officer, director or employee of the
Company or any of its subsidiaries or terminate any of the employees of the
Company other than in the ordinary course of business; or (iv) enter into
or modify in any material respect any collective bargaining agreement;
(g) neither the Company nor any of its subsidiaries will modify, amend
or terminate in any material respect any of its material contracts or
waive, release or assign any material rights or claims;
(h) neither the Company nor any of its subsidiaries will: (i) incur or
assume any indebtedness other than indebtedness with respect to working
capital in amounts consistent with past practice; (ii) materially modify
any existing indebtedness or obligation; (iii) assume, guarantee, endorse
or otherwise become liable or responsible (whether directly, contingently
or otherwise) for the obligations of any other person (other than a
subsidiary), other than immaterial amounts in the ordinary course of
business consistent with past practice; (iv) make any loans, advances or
capital contributions to, or investments in, any other person (other than
to wholly owned subsidiaries of the Company or customary advances to
employees in accordance with past practice); or (v) enter into any material
commitment or transaction other than in the ordinary course of business;
(i) neither the Company nor any of its subsidiaries will change any of
the accounting methods, practices or policies used by it, unless required
by generally accepted accounting principles or Commission rules and
regulations;
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(j) the Company will not, and it will not permit any of its
subsidiaries to, make or agree to make any capital expenditures, except for
capital expenditures that are not materially inconsistent with the
Company's 1998 strategic plan;
(k) the Company will not, and it will not permit any of its
subsidiaries to, make any material tax election (unless required by law) or
settle or compromise any material income tax liability;
(l) the Company will not, and it will not permit any of its
subsidiaries to, (i) waive the benefits of, or agree to modify in any
material manner, any confidentiality, standstill or similar agreement to
which the Company or any of its subsidiaries is a party, or (ii) pay,
discharge or satisfy any legal proceeding, other than a payment, discharge
or satisfaction, (A) involving payments by the Company or its subsidiaries
of less than $100,000 in the aggregate or (B) for which liabilities are
fully reflected on or are fully reserved against in the Company's most
recent consolidated financial statements (or the notes thereto) included in
the reports filed by the Company with the Commission, in each case in
complete satisfaction, and with a complete release, of such matter with
respect to all parties to such matter;
(m) the Company will not, and will not permit any of its subsidiaries
to, make any payment or incur any liability or obligation for the purpose
of obtaining any consent from any third party to the transactions
contemplated hereby; and
(n) neither the Company nor any of its subsidiaries will enter into an
agreement, contract, commitment or arrangement to do any of the foregoing,
or to authorize, recommend, propose or announce an intention to do any of
the foregoing.
No Solicitation. In the Merger Agreement, the Company has agreed that the
Company and its subsidiaries and affiliates will not, and will use their
reasonable efforts to ensure that their respective officers, directors,
employees, counsel, investment bankers, financial advisors, accountants, other
representatives and agents do not, directly or indirectly, initiate, solicit,
encourage or participate in, or enter into any agreement with respect to a
Takeover Proposal (as hereinafter defined). The Company has agreed and will
cause its subsidiaries and affiliates, and their respective officers, directors,
employees, counsel, investment bankers, financial advisors, accountants, other
representatives and agents to, immediately cease discussions and negotiations,
if any, with any parties conducted heretofore with respect to such matters.
Nonetheless, the Company may, directly or indirectly, furnish information
concerning the Company to any person pursuant to an appropriate confidentiality
agreement, and may participate in discussions and negotiations with such person
concerning a Takeover Proposal if, in the opinion of the Board after
consultation with legal counsel to the Company, the failure to provide such
information or to engage in such discussions or negotiations would be
inconsistent with their fiduciary duties under applicable law.
Under the Merger Agreement, neither the Board nor any committee thereof may
(i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to
Parent, the approval or recommendation by the Board or such committee of the
Merger Agreement or the Offer or the Merger, (ii) approve or recommend, or
propose to approve or recommend, any Takeover Proposal, or (iii) cause the
Company to enter into any agreement with respect to any Takeover Proposal.
However, in the event that prior to the Effective Time the Board determines in
good faith, in consultation with its legal counsel as to legal matters, that it
is necessary to do so in order to comply with its fiduciary duties, the Board
may withdraw or modify its approval or recommendation of the Merger Agreement,
the Offer and the Merger, approve or recommend a Superior Proposal (as
hereinafter defined) or cause the Company to enter into an agreement with
respect to a Superior Proposal, but in each case only at a time that is after
the fifth business day following Parent's receipt of written notice advising
Parent that the Board has received a Superior Proposal. The Company is also
required to promptly advise Parent orally of any request for information or of
any Takeover Proposal, including the terms of the Takeover Proposal.
"Takeover Proposal" means any inquiry, proposal or offer from any person
relating to any: (A) merger, consolidation or similar transaction involving the
Company, (B) sale, lease or other disposition directly or indirectly by merger,
consolidation, share exchange or otherwise of assets of the Company or its
subsidiaries outside the ordinary course of business representing 10% or more of
the consolidated assets of the Company
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and its subsidiaries, (C) issue, sale, or other disposition of (including by way
of merger, consolidation, share exchange or any similar transaction) securities
(or options, rights or warrants to purchase, or securities convertible into,
such securities) representing 20% or more of the voting power of the Company or
(D) transaction in which any person will acquire beneficial ownership or the
right to acquire beneficial ownership or any group is formed which beneficially
owns or has the right to acquire beneficial ownership of more than 20% of the
outstanding Shares, in each case, other than the transactions with Parent
contemplated by the Merger Agreement. "Superior Proposal" means any bona fide
written offer for a Takeover Proposal to acquire, directly or indirectly, for
consideration consisting of cash or securities, more than 20% of the outstanding
Shares on a fully diluted basis or all or substantially all of the assets of the
Company and otherwise on terms which the Board determined in its good faith
judgment in consultation with a financial advisor of nationally recognized
reputation that the consideration offered pursuant to such Takeover Proposal is
more favorable to the shareholders than the Offer and the Merger from a
financial point of view.
Directors' and Officers' Indemnification. For six years after the Effective
Time, Parent will indemnify, defend and hold harmless the present and former
officers, directors, employees and agents of the Company and its subsidiaries
(each an "Indemnified Party") against all losses, obligations, expenses, claims,
damages or liabilities (including interest, penalties, out-of-pocket expenses
and attorneys' fees) resulting from or arising out of actions or omissions
occurring on or prior to the Effective Time to the full extent permitted under
applicable law, the Company's Articles of Incorporation or Bylaws in effect as
of the date of the Merger Agreement or certain written indemnification
agreements, including provisions therein relating to the advancement of expenses
incurred in the defense of any action or suit; provided that in the event any
claim or claims are asserted or made within such six-year period, all rights to
indemnification in respect of any such claim or claims will continue until final
disposition of any and all such claims. If Parent or the Company (i) reorganizes
or consolidates with or merges into any other person and is not the resulting
corporation or (ii) liquidates, dissolves or transfers all or substantially all
of its assets to any person, then in either case, provision will be made so that
the successors and assigns of Parent or the Company assume the indemnification
obligations of Parent or the Company, as the case may be.
Parent must use commercially reasonable efforts for a period of six years
after the Effective Time to provide officers' and directors' liability insurance
in respect of acts or omissions occurring prior to the Effective Time, including
but not limited to the transactions contemplated by the Merger Agreement,
covering each person currently covered by the Company's existing officers' and
directors' liability insurance policy, or who becomes covered by such policy
prior to the Effective Time, 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; provided that in satisfying such obligation, Parent will not be
obligated to pay premiums in excess of 150% of the per annum amount the Company
paid in 1997; and provided further that Parent will nevertheless be obligated to
provide such coverage as may be obtained for such amount.
Benefit Plans and Certain Contracts. Under the Merger Agreement, until at
least December 31, 1999, Parent has agreed to cause the Company to maintain
either the employee benefit plans of the Company and its subsidiaries in effect
on the date of the Merger Agreement or other benefits to employees of the
Company and its subsidiaries that are not materially less favorable in the
aggregate to such employees than those in effect on the date of the Merger
Agreement; provided that the Company will not maintain any plan that provides
for the issuance of securities of the Company. Prior to consummation of the
Merger, the Company may pay eligible participants a pro rata portion of the 1998
target award under the Company's Annual Incentive Plan for which amounts have
been accrued on the Company's financial statements from January 1, 1998 through
the Effective Time. Under the Merger Agreement, Parent has also acknowledged the
existence of certain agreements between the Company and various employees and
former employees of the Company and has agreed that after the Effective Time
such agreements will continue to remain an obligation of the Company and will
remain in full force and effect.
Company Stock Options. Under the Merger Agreement, each option (an
"Option") to purchase Common Stock issued by the Company which is outstanding at
the Effective Time will be canceled by virtue of the Merger, without
consideration, and will cease to exist. Each holder of an Option, whether or not
such Option is immediately exercisable, will be entitled to receive at the
Effective Time, for each share of Common
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Stock issuable upon exercise of such Option, an amount in cash equal to the
excess of (x) the Offer Price over (y) the per share exercise price of the
Option as in effect immediately prior to the Effective Time. No consideration
will be payable with respect to any Option if the exercise price of such Option
exceeds the Offer Price.
Representations and Warranties. The Company has made customary
representations and warranties to Parent and Purchaser with respect to, among
other things, its organization and qualification, subsidiaries, capitalization,
the reports filed by the Company with the Commission, financial statements,
title to assets, liens, information supplied, consents and approvals, no
violations, no default, no undisclosed liabilities, litigation, compliance with
applicable law, employee plans, environmental matters, tax matters, intangible
property, opinion of financial advisor, brokers, labor matters, absence of
certain changes, millennium, full disclosure, real property and contracts.
Termination; Fees. The Merger Agreement may be terminated at any time prior
to the Effective Time, whether before or after shareholder approval thereof:
(i) by mutual consent of the Board of Directors of Parent and the
Board;
(ii) by either Parent or the Company if the Offer has not been
consummated on or before December 14, 1998 (provided the terminating party
is not otherwise in material breach of its representations, warranties or
obligations under the Merger Agreement);
(iii) by the Company if any of the conditions to the Merger have not
been satisfied or waived by the Company at such time as such condition is
no longer capable of satisfaction;
(iv) by Parent if any of any of the conditions to the Merger have not
been satisfied or waived by Parent at such time as such condition is no
longer capable of satisfaction;
(v) by the Company, if Parent or Purchaser has breached or failed to
perform in any material respect any of its representations, warranties or
covenants contained in the Merger Agreement, which breach or failure to
perform would give rise to a failure of a condition to the Merger or to the
Offer and cannot be or has not been cured within 30 days after the giving
of notice to Parent of such breach; or
(vi) by the Company, in connection with entering into an agreement for
a Superior Proposal as permitted by the Merger Agreement; provided the
Company has complied with all provisions of the Merger Agreement related
thereto.
If either (A)(i) the Company receives a bona fide Takeover Proposal at any
time after the date of the Merger Agreement and prior to the termination of the
Merger Agreement, (ii) the Merger Agreement terminates prior to the consummation
of the Offer for any reason (other than a breach of the Merger Agreement by
Parent or Purchaser), and (iii) by the date which is six months after the date
of termination of the Merger Agreement, either (1) a Takeover Proposal with a
third party is thereafter consummated, or (2) the Company enters into an
agreement for a Takeover Proposal with a third party which is thereafter
consummated, or (B) the Company terminates the Merger Agreement by reason of its
entering into an agreement for a Superior Proposal, then, in either event, the
Company must pay to Parent, by wire transfer of immediately available funds,
within two days after the consummation of the Takeover Proposal or Superior
Proposal, as the case may be, a fee of $9,500,000 (the "Topping Fee"). For
purposes of the requirement regarding payment of the Topping Fee only, "Takeover
Proposal" means any proposal or offer from any person relating to any: (A)
merger, consolidation or similar transaction involving the Company, (B) sale,
lease or other disposition directly or indirectly by merger, consolidation,
share exchange or otherwise of assets of the Company or its subsidiaries outside
the ordinary course of business representing 10% or more of the consolidated
assets of the Company and its subsidiaries, (C) issue, sale, or other
disposition of (including by way of merger, consolidation, share exchange or any
similar transaction) securities (or options, rights or warrants to purchase, or
securities convertible into, such securities) representing 20% or more of the
voting power of the Company or (D) transaction in which any person will acquire
beneficial ownership or the right to acquire beneficial ownership or any group
is formed which beneficially owns or has the right to acquire
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beneficial ownership of more than 50% of the outstanding Shares, in each case,
other than the transactions with Parent and Purchaser contemplated by the Merger
Agreement.
Confidentiality Agreement. The following is a summary of the material terms
of the confidentiality agreement. This summary is qualified in its entirety by
reference to the full text of the confidentiality agreement which is
incorporated herein by reference and a copy of which has been filed with the
commission as an Exhibit to the Schedule 14D-1. The confidentiality agreement
may be examined and copies may be obtained at the place and in the manner as set
forth in "Section 7 -- Certain Information concerning the Company."
Parent entered into a Letter Agreement dated April 29, 1998 (the
"Confidentiality Agreement") with the Company pursuant to which Parent has
agreed, among other things, to keep confidential certain non-public confidential
or proprietary information of the Company furnished to Parent by or on behalf of
the Company. Pursuant to the Confidentiality Agreement, Parent agreed that,
without the prior written consent of the Board, for a period of eighteen months
from the date of the Confidentiality Agreement, neither Parent nor its
affiliates will acquire or offer or agree to acquire, directly or indirectly, by
purchase or otherwise, any voting securities of the Company, or otherwise seek
to influence or control the management or policies of the Company.
Notwithstanding the foregoing, Parent and its affiliates are not prohibited from
making an offer to acquire the voting securities of the Company if the Board has
authorized an auction of such securities or Parent is making a counteroffer to a
proposed transaction for such securities.
Vote Required to Approve Merger. Pennsylvania Law provides that the
adoption of any plan of merger or consolidation by the Company requires the
approval of the Board and the affirmative vote of a majority of the votes cast
by all shareholders entitled to vote thereon (including the votes of any Shares
owned by Parent and Purchaser that have voting rights at such time), if the
"short form" merger procedure described below is not available. The Board has
authorized and approved the Offer and the Merger; consequently, the only
additional action of the Company that may be necessary to effect the Merger is
approval by such shareholders at a meeting of the Company's shareholders
convened for that purpose (the "Shareholders Meeting"). If the Minimum Condition
is satisfied, then Purchaser will own a majority of the outstanding Shares on a
fully diluted basis, and upon voting its Shares in favor of the Merger, the
Merger will be approved. Although under the terms of the Merger Agreement,
Parent and Purchaser may waive the Minimum Condition, they do not currently
intend to do so and Parent and Purchaser may terminate the Merger Agreement if
the Minimum Condition is not satisfied. Pennsylvania Law also provides that the
Merger will not require the approval of the Company's shareholders, and can be
adopted by Purchaser's Board of Directors, if Purchaser owns at least 80% of
each class of the outstanding shares of the Company. Consequently, unless
Purchaser acquires 80% of the Shares and 80% of each class of the Preference
Stock which remains outstanding, a shareholder vote will be required. No offer
is being made hereunder to acquire the Preference Stock. There can be no
assurance that Purchaser will acquire 80% of the Shares and 80% of each series
of the Preference Stock.
The Commission has adopted Rule 13e-3 under the Exchange Act which is
applicable to certain "going private" transactions and which may under certain
circumstances be applicable to the Merger or another business combination
following the purchase of Shares pursuant to the Offer in which Purchaser seeks
to acquire the remaining Shares not held by it. Purchaser believes, however,
that Rule 13e-3 will not be applicable to the Merger because it is anticipated
that the Merger will be effected within one year following consummation of the
Offer. Rule 13e-3 requires, among other things, that certain financial
information concerning the Company and certain information relating to the
fairness of the proposed transaction and the consideration offered to minority
shareholders in such transaction, be filed with the Commission and disclosed to
shareholders prior to consummation of the transaction.
Appraisal Rights. Notwithstanding anything in the Merger Agreement to the
contrary, any issued and outstanding Shares held by persons who object to the
Merger and comply with all the provisions of Pennsylvania Law concerning the
right of holders of Shares to dissent from the Merger and require appraisal of
their Shares ("Dissenting Shareholder") will not be converted into the right to
receive the Offer Price, without interest, pursuant to the Merger Agreement, but
will be converted into the right to receive such consideration as may be
determined to be due to such Dissenting Shareholder pursuant to Pennsylvania
Law;
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provided, however, that the Shares outstanding immediately prior to the
Effective Time and held by a Dissenting Shareholder who will, after the
Effective Time, withdraw his demand for appraisal or lose his right of
appraisal, in either case pursuant to the Pennsylvania Law, will be deemed to be
converted as of the Effective Time into the right to receive the Offer Price,
payable to the holder thereof, without interest. In addition, each holder of
issued and outstanding shares of Preference Stock who objects to the Merger and
complies with all the provisions of Pennsylvania Law concerning the right of
holders of shares of Preference Stock to dissent from the Merger and require
appraisal of their shares ("Dissenting Preference Holder") will, unless such
Dissenting Preference Holder withdraws or loses his right of appraisal, be
entitled to payment of the fair value of his shares determined in accordance
with Pennsylvania Law. If such Dissenting Preference Holder withdraws or loses
his right of appraisal, his shares of Preference Stock will remain outstanding
and unaffected by the Merger. The Company will give Parent (i) prompt notice of
any written demands for appraisal of the Shares or shares of Preference Stock
received by the Company and (ii) the opportunity to direct all negotiations and
proceedings with respect to any such demands. The Company will not, without the
prior written consent of Parent, voluntarily settle or compromise any such
demands.
In addition to the appraisal rights discussed above, shareholders also have
certain rights ("Subchapter 25E Rights") under Subchapter 25E of the
Pennsylvania Law ("Subchapter 25E") which will become applicable prior to the
Effective Time in the event that the Purchaser (or a group of related persons,
or any other person or group of related persons) were to acquire Shares
representing at least 20% of the voting power of the Company, in connection with
the Offer or otherwise (a "Control Transaction"). In such event, shareholders of
the Company would have the right to demand "fair value" of such shareholders'
Shares and to be paid such fair value upon compliance with the requirements of
Subchapter 25E. Under Subchapter 25E, "fair value" may not be less than the
highest price per share paid by the controlling person or group at any time
during the 90-day period ending on and including the date of the Control
Transaction, plus an increment, if any, representing any value, including,
without limitation, any proportion of value payable for acquisition of control
of the Company, that may not be reflected in such price. Purchaser believes that
the Offer Price represents fair value of the Shares within the meaning of
Subchapter 25E. Subchapter 25E Rights would attach immediately upon consummation
of a Control Transaction and require that any shareholder seeking such appraisal
must make a demand for fair value within a reasonable time after the notice to
shareholders that a Control Transaction has occurred is given by the controlling
person or group in accordance with Subchapter 25E, which time period may be
specified in such notice, as well as comply with the other procedures of
Subchapter 25E. Subchapter 25E Rights are available only with respect to shares
of a registered corporation held by a shareholder after the occurrence of a
Control Transaction; accordingly, Subchapter 25E Rights would not be available
with respect to any Shares tendered in the Offer and accepted for payment.
Although under the terms of the Merger Agreement, Parent and Purchaser may waive
the Minimum Condition, they do not currently intend to do so; and Parent and
Purchaser may terminate the Merger Agreement and the transactions contemplated
thereby (including, without limitation, the Offer) if the Minimum Condition is
not satisfied. The foregoing summary of rights under Subchapter 25E is qualified
in its entirety by reference to the full text of Subchapter 25E, which is
attached hereto as Annex A.
Except as noted in this Offer to Purchase, neither Parent nor Purchaser has
any present plans or proposals that would result in an extraordinary corporate
transaction, such as a merger, reorganization, liquidation, relocation of
operations, or sale or transfer of assets, involving the Company or any material
changes in the Company's corporate structure, business or composition of its
management or personnel.
12. DIVIDENDS AND DISTRIBUTIONS; CHANGES IN STOCK.
The Merger Agreement provides that prior to the Effective Time, unless
Parent otherwise agrees in writing the Company will not, and it will not permit
any of its subsidiaries to: (i) (A) declare, set aside or pay any dividend or
other distribution payable in cash, stock or property with respect to the
Company's capital stock or that of any of its subsidiaries (other than regularly
scheduled dividends on the Preference Stock in accordance with its terms) or (B)
redeem, purchase, or otherwise acquire directly or indirectly any of the
Company's capital stock (or options, warrants, calls, commitments or rights of
any kind to acquire any shares of capital stock) or that of any of its
subsidiaries, other than redemptions of Preference Stock required by the
Company's articles of incorporation; (ii) issue, sell, pledge, dispose of or
encumber any additional shares of, or
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securities convertible into or exchangeable for, or options, warrants, calls,
commitments or rights of any kind to acquire, any shares of capital stock of any
class of the Company or any of its subsidiaries, other than Shares issuable upon
the exercise of the Options, or upon the conversion of the Series B Preference
Stock or Series D Preferred Stock outstanding on the date of the Merger
Agreement; or (iii) split, combine or reclassify the outstanding capital stock
of the Company or any of its subsidiaries.
13. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NYSE LISTING AND
EXCHANGE ACT REGISTRATION.
The purchase of Shares by Purchaser pursuant to the Offer will reduce the
number of Shares that might otherwise trade publicly and will reduce the number
of holders of Shares, which could adversely affect the liquidity and market
value of the remaining Shares held by the public.
According to the NYSE's published guidelines, the NYSE would consider
delisting the Shares if, among other things, the number of record holders of at
least 100 Shares should fall below 1,200, the number of publicly held Shares
(exclusive of holdings of officers, directors and their families and other
concentrated holdings of 10% or more ("NYSE Excluded Holdings")) should fall
below 600,000 or the aggregate market value of publicly held Shares (exclusive
of NYSE Excluded Holdings) should fall below $5,000,000. If, as a result of the
purchase of Shares pursuant to the Offer, the Shares no longer meet the
requirements of the NYSE for continued listing and the listing of Shares is
discontinued, the market for the Shares could be adversely affected. If the NYSE
were to delist the Shares, it is possible that the Shares would continue to
trade on another securities exchange or in the over-the-counter market and that
price or other quotations would be reported by other sources. The extent of the
public market for such and the availability of such quotations would depend,
however, upon such factors as the number of shareholders and/or the aggregate
market value of such securities remaining at such time, the interest in
maintaining a market in the Shares on the part of securities firms, the possible
termination of registration under the Exchange Act as described below, and other
factors. The Purchaser cannot predict whether the reduction in the number of
Shares that might otherwise trade publicly would have an adverse or beneficial
effect on the market price for, or marketability of, the Shares or whether it
would cause future market prices to be greater or lesser than the Offer Price.
The Shares are currently "margin securities," as such term is defined under
the rules of the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"), which has the effect, among other things, of allowing brokers
to extend credit on the collateral of such securities. Depending upon factors
similar to those described above regarding listing and market quotations,
following the Offer it is possible that the Shares might no longer constitute
"margin securities" for purposes of the margin regulations of the Federal
Reserve Board, in which event such Shares could no longer be used as collateral
for loans made by brokers.
The Shares are currently registered under the Exchange Act. Such
registration may be terminated upon application of the Company to the Commission
if the Shares are not listed on a national securities exchange and there are
fewer than 300 record holders of the Shares. The termination of registration of
the Shares under the Exchange Act would substantially reduce the information
required to be furnished by the Company to holders of Shares and to the
Commission and would make certain provisions of the Exchange Act, such as the
short-swing profit recovery provisions of Section 16(b), and the requirement of
furnishing a proxy statement in connection with shareholders' meetings pursuant
to Section 14(a), no longer applicable to the Shares. In addition, "affiliates"
of the Company and persons holding "restricted securities" of the Company may be
deprived of the ability to dispose of such securities pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended.
If registration of the Shares under the Exchange Act were terminated, the
Shares would no longer be "margin securities" or be eligible for NYSE reporting.
In addition, if registration of the Shares under the Exchange Act is terminated,
Pennsylvania Law provides that the applicability of Chapter 25 thereof to the
Company (see below) shall terminate immediately upon the termination of the
Company's status as a "registered corporation."
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Purchaser intends to seek to cause the Company to terminate the
registration of the Shares under the Exchange Act as soon after consummation of
the Offer as the requirements for termination of the registration of the Shares
are met.
14. CONDITIONS OF THE OFFER.
Notwithstanding any other provisions of the Offer, and in addition to (and
not in limitation of) Purchaser's rights to extend and amend the Offer at any
time in its sole discretion (subject to the provisions of the Merger Agreement),
Purchaser will not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
under the Exchange Act (relating to Purchaser's obligation to pay for or return
tendered Shares promptly after termination or withdrawal of the Offer), pay for,
and may delay the acceptance for payment of or, subject to the restriction
referred to above, the payment for, any tendered Shares, and may terminate the
Offer as to any Shares not then paid for, if (i) the applicable waiting period
under the HSR Act or the Exon-Florio Amendment (as hereinafter defined) has not
expired or terminated, (ii) the Minimum Condition has not been satisfied or
waived, or (iii) at any time on or after September 15, 1998 and before the time
for payment of any such Shares, any of the following events occur or are
determined by Purchaser to have occurred:
(a) there shall be pending or in effect an injunction or other order,
decree, judgment or ruling by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission of
competent jurisdiction or a statute, rule, regulation, executive order or
other action shall have been promulgated, enacted, or taken by a
governmental authority or a governmental, regulatory or administrative
agency or commission of competent jurisdiction which in any case (i)
restrains or prohibits the making or consummation of the Offer or the
consummation of the Merger, (ii) prohibits or restricts the ownership or
operation by Parent (or any of its affiliates or subsidiaries) of any
portion of its or the Company's business or assets which is material in
light of the size and scope of the business of the Company and its
subsidiaries taken as a whole, or compels Parent (or any of its affiliates
or subsidiaries) to dispose of or hold separate any portion of its or the
Company's business or assets which is material to the business of the
Company and its subsidiaries taken as a whole, (iii) imposes material
limitations on the ability of Parent effectively to acquire or to hold or
to exercise full rights of ownership of the Shares, including, without
limitation, the right to vote the Shares purchased by Purchaser on all
matters properly presented to the shareholders of the Company, or (iv)
imposes any material limitations on the ability of Parent or any of its
affiliates or subsidiaries effectively to control in any material respect
the business and operations of the Company and its subsidiaries (each of
clauses (i) through (iv) being referred to as a "Prohibited Result"); or
(b) an action or a proceeding shall have been commenced by a
governmental entity under federal or state antitrust laws or any other
applicable law before any court or any governmental or other administrative
or regulatory authority or agency, domestic or foreign, which would
reasonably be expected to have a Prohibited Result; or
(c) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on any national securities
exchange or the over-the-counter market for a period in excess of 24 hours
(excluding suspensions or limitations resulting solely from physical damage
or interference with such exchanges not related to market conditions), (ii)
a declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States (whether or not mandatory), (iii) a
commencement of a war, armed hostilities or other international or national
calamity directly or indirectly involving the United States, (iv) any
limitation (whether or not mandatory) by any United States governmental
authority on the extension of credit generally by banks or other financial
institutions, (v) a change in general financial, bank or capital market
conditions which materially and adversely affects the ability of financial
institutions in the United States to extend credit or syndicate loans, or
(vi) in the case of any of the foregoing existing at the time of the
execution of the Merger Agreement, a material acceleration or worsening
thereof; or
(d) the representations and warranties of the Company contained in the
Merger Agreement shall not be true and correct on and as of the Expiration
Date, with the same force and effect as if made on and
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as of the Expiration Date, in all respects, except for such breaches which,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect (as hereinafter defined) on the
Company; or
(e) the Company shall have failed to perform in all material respects
any obligations or to comply with any material agreement or covenant to be
performed or complied with by it under the Merger Agreement, which failure
to perform has had or would reasonably be expected to have a Material
Adverse Effect on the Company; or
(f) the Company shall have failed to obtain any consent from any
third-party required to be obtained by it in order to permit consummation
of the Offer, other than those consents the failure of which to obtain
would not have and would not reasonably be expected to have, a Material
Adverse Effect on the Company; or
(g) the Merger Agreement shall have been terminated by the Company or
Parent in accordance with its terms; or
(h) the Offer shall not have been consummated by December 14, 1998.
"Material Adverse Effect" means, in respect of any party, a material
adverse effect on (i) the business, financial condition or results of operations
of such party and its subsidiaries, taken as a whole, except effects that are
(x) generally applicable in the United States economy and/or the economy in any
other region of the world which do not have a disproportionate effect on such
party and its subsidiaries (as the case may be), or (y) relate to the securities
market in general, or (z) relate to such party's industry in general or (ii) the
ability of such party to consummate the transactions contemplated by the Merger
Agreement without unreasonable delay; provided, however, that (I) the
institution of a lawsuit by a shareholder of Parent or the Company challenging
the Merger Agreement or the transactions contemplated thereby (or any threat to
do so) will not be deemed to be a Material Adverse Effect, and (II) with respect
to the Company, the commencement, public proposal, public disclosure or
communication to the Company of any Takeover Proposal will not be deemed to be a
Material Adverse Effect.
The foregoing conditions are for the sole benefit of Parent and Purchaser
and may be waived by Parent or Purchaser, in whole or in part at any time and
from time to time in the sole discretion of Parent or Purchaser. The failure by
Parent or Purchaser at any time to exercise any of the foregoing rights will not
be deemed a waiver of any such right and each such right will be deemed an
ongoing right which may be asserted at any time and from time to time.
15. REGULATORY APPROVALS; STATE TAKEOVER LAWS.
General. Except as otherwise disclosed herein, based on a review of
publicly available information filed by the Company with the Commission, neither
Purchaser nor Parent is aware of (i) any license or regulatory permit that
appears to be material to the business of the Company and its subsidiaries,
taken as a whole, that might be adversely affected by the acquisition of Shares
by Purchaser pursuant to the Offer or the Merger or (ii) any approval or other
action by any governmental, administrative or regulatory agency or authority,
domestic or foreign, that would be required for the acquisition or ownership of
Shares by Purchaser as contemplated herein. Should any such approval or other
action be required, Purchaser currently contemplates that such approval or
action would be sought. While Purchaser does not currently intend to delay the
acceptance for payment of Shares tendered pursuant to the Offer pending the
outcome of any such matter, there can be no assurance that any such approval or
action, if needed, would be obtained or would be obtained without substantial
conditions or that adverse consequences might not result to the business of the
Company, Purchaser or Parent or that certain parts of the businesses of the
Company, Purchaser or Parent might not have to be disposed of in the event that
such approvals were not obtained or any other actions were not taken.
Purchaser's obligation under the Offer to accept for payment and pay for Shares
is subject to certain conditions. See "Section 14 -- Conditions of the Offer."
Antitrust. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission ("FTC"), certain acquisition
transactions may not be consummated unless certain
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information has been furnished to the Antitrust Division of the Department of
Justice (the "Antitrust Division") and the FTC and certain waiting period
requirements have been satisfied. The acquisition of Shares by Purchaser
pursuant to the Offer is subject to the HSR Act requirements.
Under the provisions of the HSR Act applicable to the purchase of Shares
pursuant to the Offer, unless early termination of the waiting period is granted
or LVI receives a request for additional information of documentary material
prior thereto, such purchase may not be made until the expiration of a
15-calendar day waiting period following the required filing under the HSR Act
by LVI. LVI made its required filing on September 17, 1998. Accordingly, the
waiting period under the HSR Act will expire at 11:59 P.M., New York City time,
on October 2, 1998. Pursuant to the HSR Act, LVI has requested early termination
of the waiting period applicable to the Offer. There can be no assurances,
however, that the 15-day HSR Act waiting period will be terminated before such
period is set to expire.
If the FTC or the Antitrust Division issues a request for additional
information or documentary material pursuant to the HSR Act, the waiting period
under the HSR Act will be extended for an additional period of ten days after
the request is substantially complied with, unless sooner terminated by the FTC
or the Antitrust Division, and no Shares will be acquired until such waiting
period has expired. See "Section 2 -- Acceptance for Payment and Payment for
Shares." Only one extension of such waiting period pursuant to a request for
additional information is authorized by the rules promulgated under the HSR Act,
except by court order. Although the Company is required to file certain
information and documentary material with the Antitrust Division and the FTC in
connection with the Offer, neither the Company's failure to make such filings
nor a request to the Company from the Antitrust Division or the FTC for
additional information or documentary material will extend the waiting period.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Shares by
Purchaser pursuant to the Offer. At any time before or after Purchaser's
purchase of Shares, either the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of Shares pursuant to the
Offer or seeking divestiture of Shares acquired by Purchaser or divestiture of
substantial assets of Parent, the Company or any of their respective
subsidiaries. Private parties may also bring legal action under the antitrust
laws under certain circumstances. Based upon an examination of publicly
available information relating to the businesses in which Parent and its
subsidiaries and the Company and its subsidiaries are involved, Parent and
Purchaser believe that the Offer will not violate the antitrust laws.
Nevertheless, there can be no assurance that a challenge to the Offer on
antitrust grounds will not be made or, if a challenge is made, what the result
will be.
Exon-Florio Amendment. The acquisition of Shares pursuant to the Offer by
Purchaser and Parent is also subject to the requirements of Section 721 of Title
VII of the Defense Production Act of 1950, as amended by Section 5021 of the
Omnibus Trade and Competitiveness Act of 1988, and commonly referred to as the
"Exon-Florio Amendment." The Exon-Florio Amendment may apply to any merger,
acquisition or takeover that is by or with foreign persons and that could result
in foreign control (or a change in foreign control to a different foreign
person) of an entity engaged in interstate commerce in the United States.
Pursuant to the Exon-Florio Amendment, Purchaser and Parent will provide notice
of the transaction to the Committee on Foreign Investment in the United States
("CFIUS").
Upon the filing of such notice, CFIUS has a 30-day period in which to
review the notice and consider whether the proposed transaction is subject to
the Exon-Florio Amendment and to determine whether the acquisition will impair
the national security of the United States. During such 30-day period, CFIUS
must decide whether to undertake a formal investigation. If no further
investigation is undertaken, the waiting period will terminate at the end of the
30-day review period. If an investigation is undertaken, CFIUS will have up to
45 days to complete its formal investigation and submit a report to the
President of the United States, who will then have an additional 15 days to take
action or to determine that no action is necessary.
Parent made the notice filing under the Exon-Florio Amendment on September
18, 1998. Accordingly, the waiting period under the Exon-Florio Amendment will
expire at 11:59 p.m., New York City time, on October 19, 1998, unless CFIUS
undertakes a further investigation.
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State Takeover Laws. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, stockholders, executive offices or places of business in such states. In
Edgar v. Mite Corp., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions.
The Pennsylvania Takeover Disclosure Law ("PTDL") purports to regulate
certain attempts to acquire a corporation which (1) is organized under the laws
of Pennsylvania or (2) has its principal place of business and substantial
assets located in Pennsylvania. In Crane Co. v. Lam, 509 F. Supp. 782 (E.D. Pa.
1981), the United States District Court for the Eastern District of Pennsylvania
preliminarily enjoined, on grounds arising under the United States Constitution,
enforcement of at least the portion of the PTDL involving the pre-offer waiting
period thereunder. Section 8(a) of the PTDL provides an exemption for any offer
to purchase securities as to which the board of directors of the target company
recommends acceptance to its shareholders, if at the time such recommendation is
first communicated to shareholders the offeror files with the Pennsylvania
Securities Commission ("PSC") a copy of the Schedule 14D-1 and certain other
information and materials, including an undertaking to notify security holders
of the target company that a notice has been filed with the PSC which contains
substantial additional information about the offer and which is available for
inspection at the PSC's principal office during business hours. The Board has
unanimously approved the transactions contemplated by the Merger Agreement and
recommended acceptance of the Offer and the Merger to the Company's
shareholders. While reserving and not waiving its right to challenge the
validity of the PTDL or its applicability to the Offer, Purchaser is making a
Section 8(a) filing with the PSC in order to qualify for the exemption from the
PTDL. Pursuant to Section 10 of the PTDL, Purchaser will submit the appropriate
$100 notice filing fee along with the Section 8(a) filing. Additional
information about the Offer has been filed with the Pennsylvania Securities
Commission pursuant to the Pennsylvania Takeover Disclosure Law and is available
for inspection at the Pennsylvania Securities Commission's office at Eastgate
Office Building, 1010 North 7th Street, Harrisburg, PA 17102-1410, during
business hours.
Chapter 25 of Pennsylvania Law contains other provisions relating generally
to takeovers and acquisitions of certain publicly owned Pennsylvania
corporations such as the Company that have a class or series of shares entitled
to vote generally in the election of directors registered under the Exchange Act
(a "registered corporation"). The following discussion is a general and highly
abbreviated summary of certain features of such chapter, is not intended to be
complete or to completely address potentially applicable exceptions or
exemptions, and is qualified in its entirety by reference to the full text of
Chapter 25 of Pennsylvania Law.
In addition to other provisions not applicable to the Offer or the Merger,
Subchapter 25D of Pennsylvania Law includes provisions requiring approval of a
merger of a registered corporation with an "interested shareholder" in which the
"interested shareholder" is treated differently from other shareholders, by the
affirmative vote of the shareholders entitled to cast at least a majority of the
votes that all shareholders other than the interested shareholder are entitled
to cast with respect to the transaction without counting the votes of the
interested shareholders. This disinterested shareholder approval requirement is
not applicable to a transaction (i) approved by a majority of disinterested
directors, (ii) in which the consideration to be received by shareholders is not
less than the highest amount paid by the interested shareholder in acquiring his
shares, or (iii) effected without submitting the Merger to a vote of
shareholders as permitted in Section 1924(b)(1)(ii) of the Pennsylvania Law.
Purchaser currently believes that the disinterested shareholder approval
requirement of Subchapter 25D will not be applicable to the contemplated Merger
because of prior disinterested Board approval.
Subchapter 25E of Pennsylvania Law, which addresses "control transactions,"
requires under certain circumstances any person who acquires at least 20% of the
voting power of a registered corporation to offer to
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purchase up to the balance of the voting shares of the corporation at the price
determined under the statute, which may not be less than the highest price per
share paid by the controlling person or group at any time during the 90-day
period ending on and including the date of the control transaction, plus an
increment representing any value, including without limitation, any proportion
of value payable for acquisition of control of the corporation, that may not be
reflected in such price. A "control transaction" will occur if Purchaser
acquires voting power over 20% or more of the Shares of the Company by
purchasing Shares pursuant to the Offer. See "Section 11 -- Purpose of the
Offer; Plans for the Company; Merger Agreement; and Other Agreements."
Subchapter 25F of Pennsylvania Law prohibits under certain circumstances
certain "business combinations," including mergers and sales or pledges of
significant assets, of a registered corporation with an "interested shareholder"
for a period of five years. Subchapter 25F exempts business combinations
approved by the board of directors prior to a shareholder becoming an interested
shareholder and transactions with interested shareholders who beneficially owned
shares with at least 15% of the total voting power of a corporation on March 23,
1988 and remain so. The Company has represented to the Purchaser that Subchapter
25F is not applicable to the contemplated Merger.
Subchapter 25G of Pennsylvania Law, relating to "control-share
acquisitions," prevents under certain circumstances the owner of a control-share
block of shares of a registered corporation from voting such shares unless a
majority of the "disinterested" shares approve such voting rights. Failure to
obtain such approval may result in a forced sale by the control-share owner of
the control-share block to the corporation at a possible loss. The purchase by
Purchaser of Shares may be deemed to constitute a control-share acquisition,
with the result that Purchaser would not have voting rights with respect to such
control-shares unless the voting rights are restored by a disinterested
shareholder vote. The Company has represented to the Purchaser that Subchapter
25G is not applicable to the transactions contemplated by the Merger Agreement.
Subchapter 25H of Pennsylvania Law, relating to disgorgement by certain
controlling shareholders of a registered corporation, provides that under
certain circumstances any profit realized by a controlling person from the
disposition of shares of the corporation to any person (including to the
corporation under Subchapter 25G or otherwise) will be recoverable by the
corporation. The Company has represented to the Purchaser that Subchapter 25H is
not applicable to the transactions contemplated by the Merger Agreement.
Subchapter 25I of Pennsylvania Law entitles "eligible employees" of a
registered corporation to a lump sum payment of severance compensation under
certain circumstances if the employee is terminated, other than for willful
misconduct, within 90 days before voting rights lost as a result of a
control-share acquisition are restored by a vote of disinterested shareholders.
Subchapter 25J of Pennsylvania Law provides protection against termination or
impairment under certain circumstances of "covered labor contracts" of a
registered corporation as a result of a "business combination" transaction if
the business operation to which the covered labor contract relates was owned by
the registered corporation at the time voting rights are restored by shareholder
vote after a control-share acquisition. The Company has represented to Purchaser
that Subchapters 25I and 25J are not applicable to the transactions contemplated
by the Merger Agreement.
Section 2504 of Pennsylvania Law provides that the applicability of Chapter
25 of Pennsylvania Law to a registered corporation having a class or series of
shares entitled to vote generally in the election of directors registered under
the Exchange Act or otherwise satisfying the definition of a registered
corporation under Section 2502(1) of Pennsylvania Law shall terminate
immediately upon the termination of the status of the corporation as a
registered corporation. Purchaser intends to seek to cause the Company to
terminate the registration of the Shares under the Exchange Act as soon after
consummation of the Offer as the requirements for termination of the
registration of the Shares are met.
Except for the filing pursuant to Section 8(a) of the PTDL described above,
neither Purchaser nor Parent has currently complied with any state takeover
statute or regulation; however Purchaser intends to comply with Subchapter 25E
to the extent it is applicable upon consummation of the Offer. Purchaser
reserves the right to challenge the applicability or validity of any state law
purportedly applicable to the Offer or the Merger and nothing in this Offer to
Purchase or any action taken in connection with the Offer or the Merger is
intended as a waiver of such right. If it is asserted that any state takeover
statute is applicable to the Offer or
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the Merger and an appropriate court does not determine that it is inapplicable
or invalid as applied to the Offer or the Merger, Purchaser might be required to
file certain information with, or to receive approvals from, the relevant state
authorities, and Purchaser might be unable to accept for payment or pay for
Shares tendered pursuant to the Offer, or be delayed in consummating the Offer
or the Merger. In such case, Purchaser may not be obliged to accept for payment
or pay for any Shares tendered pursuant to the Offer.
16. FEES AND EXPENSES.
Except as set forth below, neither Parent nor Purchaser will pay any fees
or commissions to any broker, dealer or other person for soliciting tenders of
Shares pursuant to the Offer.
ING Barings is acting as Dealer Manager in connection with the Offer and
has provided certain financial advisory services to Parent and Purchaser in
connection with the Offer and the Merger. As compensation for ING Barings'
services as financial advisor, Parent or its affiliate will pay ING Barings a
transaction fee upon the consummation of the Offer. In addition, Parent has
agreed to reimburse ING Barings for all out-of-pocket expenses, including
reasonable attorneys' fees, incurred by ING Barings in connection with its role
as financial advisor and Dealer Manager, and Parent has agreed to indemnify ING
Barings and certain related persons against certain losses, claims, damages,
liabilities, costs and expenses in connection with its role as financial advisor
and Dealer Manager. In addition, Parent has agreed to pay directly, or reimburse
ING Barings for, (i) all expenses incurred by ING Barings relating to the
preparation, printing, filing, mailing and publishing of all Offer material,
(ii) all fees and expenses of the Depositary and the Information Agent referred
to in this Offer to Purchase, (iii) all advertising charges in connection with
the Offer, (iv) all fees, if any, payable to dealers (including ING Barings),
banks and trust companies as reimbursement for their customary mailing and
handling expenses incurred in forwarding the Offer material to their customers
and (v) all other fees and expenses incurred by ING Barings in connection with
the Offer. All payments to be made by Parent pursuant to the Dealer Manager
Agreement will be made promptly against delivery to Parent of statements
therefor. Parent will be liable for the foregoing payments whether or not the
Offer is made or the Purchaser purchases any Shares pursuant to the Offer.
Purchaser has retained Morrow & Co., Inc. to act as the Information Agent
in connection with the Offer. The Information Agent may contact holders of
Shares by mail, telephone, facsimile, telegraph and personal interviews and may
request brokers, dealers and other nominee shareholders to forward materials
relating to the Offer to beneficial owners of Shares. The Information Agent will
receive reasonable and customary compensation for its services, will be
reimbursed for certain reasonable out-of-pocket expenses and will be indemnified
against certain liabilities and expenses in connection therewith, including
certain liabilities under the Federal securities laws.
In addition, Continental Stock Transfer & Trust Company has been retained
as the Depositary. The Depositary has not been retained to make solicitations or
recommendations in its role as Depositary. The Depositary will receive
reasonable and customary compensation for its services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities and expenses in connection therewith, including certain
liabilities under the Federal securities laws. Brokers, dealers, commercial
banks and trust companies will be reimbursed by Purchaser for customary mailing
and handling expenses incurred by them in forwarding offering material to their
customers.
17. MISCELLANEOUS.
Purchaser is not aware of any jurisdiction where the making of the Offer is
prohibited by any administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of the Shares pursuant thereto, Purchaser
will make a good faith effort to comply with such state statute. If, after such
good faith effort, Purchaser cannot comply with any such state statute, the
Offer will not be made to (nor will tenders be accepted from or on behalf of)
the holders of Shares in such state. In any jurisdiction where the securities,
blue sky or other laws require the Offer to be made by a licensed broker or
dealer, the Offer will be deemed to be made on behalf of Purchaser by one or
more registered brokers or dealers which are licensed under the laws of such
jurisdiction.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR PURCHASER NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Parent and Purchaser have filed with the Commission the Schedule 14D-1,
together with Exhibits, pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. The Schedule 14D-1
and any amendments thereto, including Exhibits, may be inspected at, and copies
may be obtained from, the same places and in the same manner as set forth in
"Section 7 -- Certain Information Concerning the Company" (except that they will
not be available at the regional offices of the Commission).
DLC Acquisition Corp.
September 21, 1998
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SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS OF PARENT, PURCHASER AND LVI
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. Set forth below is the name,
current business address, citizenship and the present principal occupation or
employment and material occupations, positions, offices or employments for the
past five years of each director and executive officer of Parent. Unless
otherwise indicated, each person identified below is employed by Parent or its
affiliates, and has been employed by Parent or its affiliates, in positions of
increasing responsibility, for the past five years. The principal address of
Parent and, unless otherwise indicated below, the current business address for
each individual listed below is 390 E. Joe Orr Road, Chicago Heights, Illinois
60411. Except as otherwise noted below, each such person is a citizen of the
United States. Directors are identified by an asterisk.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
Yves R. Collinet*............................ Vice President of Parent and Purchaser; Vice
Parc Scientifique Athena President -- Technical of The Carmeuse Group
Boulevard de Lauzelle 65
1348 Louvain-la-Neuve Nord
Belgium
citizen of Belgium
Jacques A. Germay*........................... Chairman of Parent and Purchaser; Chief Executive
47 Rue de L'Abbaye Officer of Alpha, S.A.
4432 Alleur, Belgium
citizen of Belgium
Yves Willems*................................ Vice President of Parent and Purchaser; Managing
Parc Scientifique Athena Director of Carmeuse Coordination Center, S.A.; Chief
Boulevard de Lauzelle 65 Financial Officer of The Carmeuse Group; Director of
1348 Louvain-la-Neuve Nord Coil, S.A.
Belgium
citizen of Belgium
Alfredo Riefkohl Henrichsen*................. Chief Executive Officer of Grupo Calidra, S.A. de
Vasco de Quiroga No. 1800 C.V.
01210 Mexico, D.F.
citizen of Mexico
Richard C. Kraus............................. President and Chief Executive Officer of Parent and
Purchaser; President and Chief Executive Officer of
Echo Bay Mines from 1981 to April, 1997; Director of
St. Mary Land and Exploration Company
William S. Brown III......................... Director of Strategic Development of Parent; Vice
President of Carmeuse North American Group and
Chairman of Marblehead Lime Company since July, 1998;
President and Chief Executive Officer of Carmeuse
North American Group from November, 1994 to July,
1998; President and Chief Executive Officer of Brown
Group from July, 1991 to November, 1994
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
Scott A. Deininger........................... Executive Vice President of Parent; Treasurer of
Purchaser; Chief Financial Officer of Carmeuse North
American Group since April, 1998; Group Controller of
the Carmeuse North American Group from March, 1997 to
April, 1998; Region Controller of Tarmac Minerals,
Inc. from March, 1996 to March, 1997; Corporate
Controller of Wimpey Minerals USA, Inc. from January,
1993 to March, 1996
Suzanne E. Ritzler........................... Executive Vice President and Secretary of Parent;
Secretary of Purchaser; Executive Vice President --
Legal and General Counsel of Carmeuse North American
Group since March, 1997; attorney with law firm of
Seyfarth, Shaw, Fairweather & Geraldson from March,
1992 to March, 1997
2. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER. Set forth below is the
name, current business address, citizenship and the present principal occupation
or employment and material occupations, positions, offices or employments for
the past five years of each director and executive officer of Purchaser. The
principal address of Purchaser and the current business address for each
individual listed below, unless otherwise indicated, is 390 E. Joe Orr Road,
Chicago Heights, Illinois 60411. Except as otherwise noted below, each such
person is a citizen of the United States. Directors are identified by an
asterisk.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
Jacques A. Germay*........................... Chairman of Parent and Purchaser; Chief Executive
47 Rue de L'Abbaye Officer of Alpha, S.A.
4432 Alleur, Belgium
citizen of Belgium
Yves Willems*................................ Vice President of Parent and Purchaser; Managing
Parc Scientifique Athena Director of Carmeuse Coordination Center, S.A.; Chief
Boulevard de Lauzelle 65 Financial Officer of The Carmeuse Group; Director of
1348 Louvain-la-Neuve Nord Coil, S.A.
Belgium
citizen of Belgium
Richard C. Kraus*............................ President and Chief Executive Officer of Parent and
Purchaser; President and Chief Executive Officer of
Echo Bay Mines from 1981 to April, 1997; Director of
St. Mary Land and Exploration Company
William S. Brown III*........................ Director of Strategic Development of Parent; Vice
President of Carmeuse North America Group and
Chairman of Marblehead Lime Company since July, 1998;
President and Chief Executive Officer of Carmeuse
North American Group from November, 1994 to July,
1998; President and Chief Executive Officer of Brown
Group from July, 1991 to November, 1994
Scott A. Deininger........................... Executive Vice President of Parent; Treasurer of
Purchaser; Chief Financial Officer of Carmeuse North
American Group since April, 1998; Group Controller of
the Carmeuse North American Group from March, 1997 to
April, 1998; Region Controller of Tarmac Minerals,
Inc. from March, 1996 to March, 1997; Corporate
Controller of Wimpey Minerals USA, Inc. from January,
1993 to March, 1996
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PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
Suzanne E. Ritzler........................... Executive Vice President and Secretary of Parent;
Secretary of Purchaser; Executive Vice President --
Legal and General Counsel of Carmeuse North American
Group since March, 1997; attorney with law firm of
Seyfarth, Shaw, Fairweather & Geraldson from March,
1992 to March, 1997
3. DIRECTORS AND EXECUTIVE OFFICERS OF LVI. Set forth below is the name,
current business address, citizenship and the present principal occupation or
employment and material occupations, positions, offices or employments for the
past five years of each director and executive officer of LVI. Unless otherwise
indicated, each person identified below is employed by LVI or its subsidiaries,
and has held positions of increasing responsibility at LVI or its subsidiaries,
for the past five years. The principal address of LVI and, unless otherwise
indicated below, the current business address for each individual listed below
is Nijverheids-straat 34, P.O. Box 648, 2800 AP Gouda, The Netherlands.
Directors are identified by an asterisk.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
Dominique Collinet*.................. Chairman of LVI and The Carmeuse Group; Director of
Parc Scientifique Athena Compagnie Generale Mosane, S.A., Spadel, S.A. and Banque
Boulevard de Lauzelle 65 Brussels Lambert, S.A.
1348 Louvain-la-Neuve Nord
Belgium
citizen of Belgium
J.J. de Niet......................... Managing Director of LVI and Carmeuse NA
Nijverheidsstraat 34
P. O. Box 648
2800 AP Gouda
The Netherlands
citizen of The Netherlands
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ANNEX A
PENNSYLVANIA BUSINESS CORPORATION LAW OF 1988
CHAPTER 25
SUBCHAPTER E. CONTROL TRANSACTIONS
2541 Application and Effect of Subchapter. -- (a) General rule. -- Except
as otherwise provided in this section, this subchapter shall apply to a
registered corporation unless: (1) the registered corporation is one described
in section 2502(1)(ii) or (2) (relating to registered corporation status): (2)
the bylaws, by amendment adopted either: (i) by March 23, 1984; or (ii) on or
after March 23, 1988, and on or before June 21, 1988; and, in either event, not
subsequently rescinded by an article amendment, explicitly provide that this
subchapter shall not be applicable to the corporation in the case of a
corporation which on June 21, 1988, did not have outstanding one or more classes
or series of preference shares entitled, upon the occurrence of a default in the
payment of dividends or another similar contingency, to elect a majority of the
members of the board of directors (a bylaw adopted on or before June 21, 1988,
by a corporation excluded from the scope of this paragraph by the restriction of
this paragraph relating to certain outstanding preference shares shall be
ineffective unless ratified under paragraph (3)); (3) the bylaws of which
explicitly provide that this subchapter shall not be applicable to the
corporation by amendment ratified by the board of directors on or after December
19, 1990, and on or before March 19, 1991, in the case of a corporation: (i)
which on June 21, 1988, had outstanding one or more classes or series of
preference shares entitled, upon the occurrence of a default in the payment of
dividends or another similar contingency, to elect a majority of the members of
the board of directors; and (ii) the bylaws of which on that date contained a
provision described in paragraph (2); or (4) the articles explicitly provide
that this subchapter shall not be applicable to the corporation by a provision
included in the original articles, by an article amendment adopted prior to the
date of the control transaction and prior to or on March 23, 1988, pursuant to
the procedures then applicable to the corporation, or by an article amendment
adopted prior to the date of the control transaction and subsequent to March 23,
1988, pursuant to both: (i) the procedures then applicable to the corporation;
and (ii) unless such proposed amendment has been approved by the board of
directors of the corporation, in which event this subparagraph shall not be
applicable, the affirmative vote of the shareholders entitled to cast at least
80% of the votes which all shareholders are entitled to cast thereon. A
reference in the articles or bylaws to former section 910 (relating to right of
shareholders to receive payment for shares following a control transaction) of
the act of May 5, 1933 (P.L. 364, No. 106), known as the Business Corporation
Law of 1933, shall be a reference to this subchapter for the purposes of this
section. See section 101(c) (relating to references to prior statutes).
(b) Inadvertent transactions. -- This subchapter shall not apply to any
person or group that inadvertently becomes a controlling person or group if that
controlling person or group, as soon as practicable, divests itself of a
sufficient amount of its voting shares so that it is no longer a controlling
person or group.
(c) Certain subsidiaries. -- This subchapter shall not apply to any
corporation that on December 23, 1983, was a subsidiary of any other
corporation.
2542 Definitions. -- The following words and phrases when used in this
subchapter shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Control transaction." The acquisition by a person or group of the status
of a controlling person or group.
"Controlling person or group." A controlling person or group as defined in
section 2543 (relating to controlling person or group).
"Fair value." A value not less than the highest price paid per share by the
controlling person or group at any time during the 90-day period ending on and
including the date of the control transaction plus an increment representing any
value, including, without limitation, any proportion of any value payable for
acquisition of control of the corporation, that may not be reflected in such
price.
"Partial payment amount." The amount per share specified in section 2545
(c) (2) (relating to contents of notice).
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"Subsidiary." Any corporation as to which any other corporation has or has
the right to acquire, directly or indirectly, through the exercise of all
warrants, options and rights and the conversion of all convertible securities,
whether issued or granted by the subsidiary or otherwise, voting power over
voting shares of the subsidiary that would entitle the holders thereof to cast
in excess of 50% of the votes that all shareholders would be entitled to cast in
the election of directors of such subsidiary, except that a subsidiary will not
be deemed to cease being a subsidiary as long as such corporation remains a
controlling person or group within the meaning of this subchapter.
"Voting shares." The term shall have the meaning specified in section 2552
(relating to definitions).
2543 Controlling Person or Group. -- (a) General rule. -- For the purpose
of this subchapter, a "controlling person or group" means a person who has, or a
group of persons acting in concert that has, voting power over voting shares of
the registered corporation that would entitle the holders thereof to cast at
least 20% of the votes that all shareholders would be entitled to cast in an
election of directors of the corporation.
(b) Exceptions generally. -- Notwithstanding subsection (a): (1) A person
or group which would otherwise be a controlling person or group within the
meaning of this section shall not be deemed a controlling person or group
unless, subsequent to the later of March 23, 1988, or the date this subchapter
becomes applicable to a corporation by bylaw or article amendment or otherwise,
that person or group increases the percentage of outstanding voting shares of
the corporation over which it has voting power to in excess of the percentage of
outstanding voting shares of the corporation over which that person or group had
voting power on such later date, and to at least the amount specified in
subsection (a), as the result of forming or enlarging a group or acquiring, by
purchase, voting power over voting shares of the corporation. (2) No person or
group shall be deemed to be a controlling person or group at any particular time
if voting power over any of the following voting shares is required to be
counted at such time in order to meet the 20% minimum: (i) Shares which have
been held continuously by a natural person since January 1, 1983, and which are
held by such natural person at such time. (ii) Shares which are held at such
time by any natural person or trust, estate, foundation or other similar entity
to the extent the shares were acquired solely by gift, inheritance, bequest,
devise or other testamentary distribution or series of these transactions,
directly or indirectly, from a natural person who had acquired the shares prior
to January 1, 1983. (iii) Shares which were acquired pursuant to a stock split,
stock dividend, reclassification or similar recapitalization with respect to
shares described under this paragraph that have been held continuously since
their issuance by the corporation by the natural person or entity that acquired
them from the corporation or that were acquired, directly or indirectly, from
such natural person or entity, solely pursuant to a transaction or series of
transactions described in subparagraph (ii), and that are held at such time by a
natural person or entity described in subparagraph (ii). (iv) Control shares as
defined in section 2562 (relating to definitions) which have not yet been
accorded voting rights pursuant to section 2564(a) (relating to voting rights of
shares acquired in a control-share acquisition). (v) Shares, the voting rights
of which are attributable to a person under subsection (d) if: (A) the person
acquired the option or conversion right directly from or made the contract,
arrangement or understanding or has the relationship directly with the
corporation; and (B) the person does not at the particular time own or otherwise
effectively possess the voting rights of the shares. (vi) Shares acquired
directly from the corporation or an affiliate or associate, as defined in
section 2552 (relating to definitions), of the corporation by a person engaged
in business as an underwriter of securities who acquires the shares through his
participation in good faith in a firm commitment underwriting registered under
the Securities Act of 1933. (3) In determining whether a person or group is or
would be a controlling person or group at any particular time, there shall be
disregarded voting power arising from a contingent right of the holders of one
or more classes or series of preference shares to elect one or more members of
the board of directors upon or during the continuation of a default in the
payment of dividends on such shares or another similar contingency.
(c) Certain record holders. -- A person shall not be a controlling person
under subsection (a) if the person holds voting power, in good faith and not for
the purpose of circumventing this subchapter, as an agent, bank, broker, nominee
or trustee for one or more beneficial owners who do not individually or, if they
are a group acting in concert, as a group have the voting power specified in
subsection (a), or who are not deemed a controlling person or group under
subsection (b).
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(d) Existence of voting power. -- For the purposes of this subchapter, a
person has voting power over a voting share if the person has or shares,
directly or indirectly, through any option, contract, arrangement,
understanding, conversion right or relationship, or by acting jointly or in
concert or otherwise, the power to vote, or to direct the voting of, the voting
share.
2544 Right of Shareholders to Receive Payment for Shares. -- Any holder of
voting shares of a registered corporation that becomes the subject of a control
transaction who shall object to the transaction shall be entitled to the rights
and remedies provided in this subchapter.
2545 Notice to Shareholders. -- (a) General rule. -- Prompt notice that a
control transaction has occurred shall be given by the controlling person or
group to: (1) Each shareholder of record of the registered corporation holding
voting shares. (2) To the court, accompanied by a petition to the court praying
that the fair value of the voting shares of the corporation be determined
pursuant to section 2547 (relating to valuation procedures) if the court should
receive pursuant to section 2547 certificates from shareholders of the
corporation or an equivalent request for transfer of uncertificated securities.
(b) Obligations of the corporation. -- If the controlling person or group
so requests, the corporation shall, at the option of the corporation and at the
expense of the person or group, either furnish a list of all such shareholders
to the person or group or mail the notice to all such shareholders.
(c) Contents of notice. -- The notice shall state that: (1) All
shareholders are entitled to demand that they be paid the fair value of their
shares. (2) The minimum value the shareholder can receive under this subchapter
is the highest price paid per share by the controlling person or group within
the 90-day period ending on and including the date of the control transaction,
and stating that value. (3) If the shareholder believes the fair value of his
shares is higher, that this subchapter provides an appraisal procedure for
determining the fair value of such shares, specifying the name of the court and
its address and the caption of the petition referenced in subsection (a) (2),
and stating that the information is provided for the possible use by the
shareholder in electing to proceed with a court-appointed appraiser under
section 2547. There shall be included in, or enclosed with, the notice a copy of
this subchapter.
(d) Optional procedure. -- The controlling person or group may, at its
option, supply with the notice referenced in subsection (c) a form for the
shareholder to demand payment of the partial payment amount directly from the
controlling person or group without utilizing the court-appointed appraiser
procedure of section 2547, requiring the shareholder to state the number and
class or series, if any, of the shares owned by him, and stating where the
payment demand must be sent and the procedures to be followed.
2546 Shareholder Demand for Fair Value. -- (a) General rule. -- after the
occurrence of the control transaction, any holder of voting shares of the
registered corporation may, prior to or within a reasonable time after the
notice required by section 2545 (relating to notice to shareholders) is given,
which time period may be specified in the notice, make written demand on the
controlling person or group for payment of the amount provided in subsection (c)
with respect to the voting shares of the corporation held by the shareholder,
and the controlling person or group shall be required to pay that amount to the
shareholder pursuant to the procedures specified in section 2547 (relating to
valuation procedures).
(b) Contents of demand. -- The demand of the shareholder shall state the
number and class or series, if any, of the shares owned by him with respect to
which the demand is made.
(c) Measure of value. -- A shareholder making written demand under this
section shall be entitled to receive cash for each of his shares in an amount
equal to the fair value of each voting share as of the date on which the control
transaction occurs, taking into account all relevant factors, including an
increment representing a proportion of any value payable for acquisition of
control of the corporation.
(d) Purchases independent of subchapter. -- The provisions of this
subchapter shall not preclude a controlling person or group subject to this
subchapter from offering, whether in the notice required by section 2545 or
otherwise, to purchase voting shares of the corporation at a price other than
that provided in subsection (c), and the provisions of this subchapter shall not
preclude any shareholder from agreeing to sell his voting shares at that or any
other price to any person.
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2547 Valuation Procedures. -- (a) General rule. -- If, within 45 days (or
such other time period, if any, as required by applicable law) after the date of
the notice required by section 2545 (relating to notice to shareholders), or, if
such notice was not provided prior to the date of the written demand by the
shareholder under section 2546 (relating to shareholder demand for fair value),
then within 45 days (or such other time period, if any, required by applicable
law) of the date of such written demand, the controlling person or group and the
shareholder are unable to agree on the fair value of the shares or on a binding
procedure to determine the fair value of the shares, then each shareholder who
is unable to agree on both the fair value and on such a procedure with the
controlling person or group and who so desires to obtain the rights and remedies
provided in this subchapter shall, no later than 30 days after the expiration of
the applicable 45-day or other period, surrender to the court certificates
representing any of the shares that are certificated shares, duly endorsed for
transfer to the controlling person or group, or cause any uncertificated shares
to be transferred to the court as escrow agent under subsection (c) with a
notice stating that the certificates or uncertificated shares are being
surrendered or transferred, as the case may be, in connection with the petition
referenced in section 2545 or, if no petition has theretofore been filed, the
shareholder may file a petition within the 30-day period in the court praying
that the fair value (as defined in this subchapter) of the shares be determined.
(b) Effect of failure to give notice and surrender certificates. -- Any
shareholder who does not so give notice and surrender any certificates or cause
uncertificated shares to be transferred within such time period shall have no
further right to receive, with respect to shares the certificates of which were
not so surrendered or the uncertificated shares which were not so transferred
under this section, payment under this subchapter from the controlling person or
group with respect to the control transaction giving rise to the rights of the
shareholder under this subchapter.
(c) Escrow and notice. -- The court shall hold the certificates surrendered
and the uncertificated shares transferred to it in escrow for, and shall
promptly, following the expiration of the time period during which the
certificates may be surrendered and the uncertificated shares transferred,
provide a notice to the controlling person or group of the number of shares so
surrendered or transferred.
(d) Partial payment for shares. -- The controlling person or group shall
then make a partial payment for the shares so surrendered or transferred to the
court, within ten business days of receipt of the notice from the court, at a
per-share price equal to the partial payment amount. The court shall then make
payment as soon as practicable, but in any event within ten business days, to
the shareholders who so surrender or transfer their shares to the court of the
appropriate per-share amount received from the controlling person or group.
(e) Appointment of appraiser. -- Upon receipt of any share certificate
surrendered or uncertificated share transferred under this section, the court
shall, as soon as practicable but in any event within 30 days, appoint an
appraiser with experience in appraising share values of companies of like nature
to the registered corporation to determine the fair value of the shares.
(f) Appraisal procedure. -- The appraiser so appointed by the court shall,
as soon as reasonably practicable, determine the fair value of the shares
subject to its appraisal and the appropriate market rate of interest on the
amount then owed by the controlling person or group to the holders of the
shares. The determination of any appraiser so appointed by the court shall be
final and binding on both the controlling person or group and all shareholders
who so surrendered their share certificates or transferred their shares to the
court, except that the determination of the appraiser shall be subject to review
to the extent and within the time provided or prescribed by law in the case of
other appointed judicial officers. See 42 Pa.C.S. Section 5105(a)(3) (relating
to right to appellate review) and 5571(b) (relating to appeals generally).
(g) Supplemental payment. -- Any amount owed, together with interest, as
determined pursuant to the appraisal procedures of this section shall be payable
by the controlling person or group after it is so determined and upon and
concurrently with the delivery or transfer to the controlling person or group by
the court (which shall make delivery of the certificate or certificates
surrendered or the uncertificated shares transferred to it to the controlling
person or group as soon as practicable but in any event within ten business days
after the final determination of the amount owed) of the certificate or
certificates representing shares surrendered or the uncertificated shares
transferred to the court, and the court shall then make payment, as soon as
practicable but in any event within ten business days after receipt of payment
from the controlling person or group, to the
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shareholders who so surrendered or transferred their shares to the court of the
appropriate per-share amount received from the controlling person or group.
(h) Voting and dividend rights during appraisal proceedings. --
Shareholders who surrender their shares to the court pursuant to this section
shall retain the right to vote their shares and receive dividends or other
distributions thereon until the court receives payment in full for each of the
shares so surrendered or transferred of the partial payment amount (and,
thereafter, the controlling person or group shall be entitled to vote such
shares and receive dividends or other distributions thereon). The fair value (as
determined by the appraiser) of any dividends or other distributions so received
by the shareholders shall be subtracted from any amount owing to such
shareholders under this section.
(i) Powers of the court. -- The court may appoint such agents, including
the transfer agent of the corporation, or any other institution, to hold the
share certificates so surrendered and the shares surrendered or transferred
under this section, to effect any necessary change in record ownership of the
shares after the payment by the controlling person or group to the court of the
amount specified in subsection (h), to receive and disburse dividends or other
distributions, to provide notices to shareholders and to take such other actions
as the court determines are appropriate to effect the purposes of this
subchapter.
(j) Costs and expenses. -- The costs and expenses of any appraiser or other
agents appointed by the court shall be assessed against the controlling person
or group. The costs and expenses of any other procedure to determine fair value
shall be paid as agreed to by the parties agreeing to the procedure.
(k) Jurisdiction exclusive. -- The jurisdiction of the court under this
subchapter is plenary and exclusive and the controlling person or group and all
shareholders who so surrendered or transferred their shares to the court shall
be made a party to the proceeding as in an action against their shares.
(l) Duty of corporation. -- The corporation shall comply with requests for
information, which may be submitted pursuant to procedures maintaining the
confidentiality of the information, made by the court or the appraiser selected
by the court. If any of the shares of the corporation are not represented by
certificates, the transfer, escrow or retransfer of those shares contemplated by
this section shall be registered by the corporation, which shall give the
written notice required by section 1528(f) (relating to uncertificated shares)
to the transferring shareholder, the court and the controlling shareholder or
group, as appropriate in the circumstances.
(m) Payment under optional procedure. -- Any amount agreed upon between the
parties or determined pursuant to the procedure agreed upon between the parties
shall be payable by the controlling person or group after it is agreed upon or
determined and upon and concurrently with the delivery of any certificate or
certificates representing such shares or the transfer of any uncertificated
shares to the controlling person or group by the shareholder.
(n) Title to shares. -- Upon full payment by the controlling person or
group of the amount owed to the shareholder or to the court, as appropriate, the
shareholder shall cease to have any interest in the shares.
2548 Coordination with Control Transaction. -- (a) General rule. -- A
person or group that proposes to engage in a control transaction may comply with
the requirements of this subchapter in connection with the control transaction,
and the effectiveness of the rights afforded in this subchapter to shareholders
may be conditioned upon the consummation of the control transaction.
(b) Notice. -- The person or group shall give prompt written notice of the
satisfaction of any such condition to each shareholder who has made demand as
provided in this subchapter.
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Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, certificates for the Shares
and any other required documents should be sent by each shareholder of the
Company or his broker, dealer, commercial bank, trust company or other nominee
to the Depositary as follows:
The Depositary for the Offer is:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
2 Broadway
19th Floor
New York, New York 10004
Facsimile (212) 509-5150
Questions or to confirm fax (212) 509-4000, extension 535
(Reorganization Department)
Any questions or requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery or
other tender offer materials may be directed to the Dealer Manager or the
Information Agent at their respective telephone numbers and addresses listed
below. You may also contact your broker, dealer, commercial bank or trust
company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
MORROW & CO., INC.
445 Park Avenue
Fifth Floor
New York, New York 10022
Banks & Brokers Call Toll-Free (800) 662-5200
All Others Call Toll-Free (800) 566-9061
The Dealer Manager for the Offer is:
ING BARING FURMAN SELZ LLC
230 Park Avenue
New York, New York 10169
Call Collect (212) 309-6469
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