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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 2)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
COHR INC.
(Name of Subject Company)
COHR INC.
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
192567105
(CUSIP Number of Class of Securities)
RAYMOND E. LIST
PRESIDENT AND CHIEF EXECUTIVE OFFICER
21540 PLUMMER STREET
CHATSWORTH, CA 91311
(818) 773-2647
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
WITH A COPY TO:
ROBERT B. KNAUSS
MUNGER, TOLLES & OLSON LLP
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CALIFORNIA 90071-1560
(213) 683-9100
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This Amendment No. 2 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9, as amended (the
"Schedule 14D-9) of COHR Inc., a Delaware corporation (the "Company"), relating
to the Revised Offer (as defined below) made by TCF Acquisition Corporation, a
Delaware corporation (the "Purchaser"), which is currently owned by Three Cities
Fund II, L.P. and Three Cities Offshore II, C.V., disclosed in its Tender Offer
Statement on Schedule 14D-1 (as may be amended or supplemented from time to
time, the "Schedule 14D-1") to purchase all the outstanding Shares of the
Company upon the terms and subject to the conditions set forth in the Offer to
Purchase (as may be amended or supplemented from time to time, the "Offer to
Purchase") and the related Letter of Transmittal (the terms and conditions of
which, together with any amendments or supplements thereto, collectively
constitute the "Revised Offer"). The purpose of this Amendment No. 2 is to
describe the changes in the Revised Offer from the Purchaser's initial tender
offer described in the Offer to Purchase dated January 4, 1999, including the
increase in the tender offer price per Share being offered by the Purchaser to
$6.50 net cash per Share, and to amend and supplement Items 2, 3(b), 4, 5, 8,
and 9 of the Schedule 14D-9, as set forth below. All capitalized terms used
herein but not otherwise defined shall have the meanings ascribed to such terms
in the Schedule 14D-9.
ITEM 2. TENDER OFFER OF THE BIDDER
Item 2 is hereby amended and restated in its entirety as follows:
This Schedule 14D-9 relates to the Revised Offer made by the Purchaser,
disclosed in the Schedule 14D-1 to purchase all the outstanding Shares at a
price of $6.50 per Share, net to the seller in cash (the "Offer Price"), upon
the terms and subject to the conditions set forth in the Offer to Purchase and
the related Letter of Transmittal. The Supplement, dated February 5, 1999 (the
"Supplement"), to the Offer to Purchase, dated January 4, 1999, is filed as
Exhibit (a)(8) hereto, and the Letter of Transmittal (as amended) is filed as
Exhibit (a)(9) hereto.
The Revised Offer is being made pursuant to an Amended and Restated
Plan and Agreement of Merger dated as of February 4, 1999, between the Company
and the Purchaser (the "Amended Merger Agreement"), which provides for the
making of the Revised Offer by the Purchaser, subject to the conditions and upon
the terms of the Amended Merger Agreement, and for the subsequent merger of the
Purchaser with and into the Company (the "Merger"). The Amended Merger Agreement
amends and restates the Plan and Agreement of Merger dated as of December 24,
1999 (the "Original Merger Agreement"). In the Merger, each Share outstanding at
the Effective Time (as defined in the Amended Merger Agreement) (other than
Shares held by Three Cities Funds, the Purchaser, or Shares held by stockholders
validly exercising appraisal rights pursuant to the General Corporation Law of
the State of Delaware (the "DGCL")) will, by virtue of the Merger and without
any action by the holder thereof, be converted into the right to receive,
without interest, $6.50 per Share in cash (the "Merger Consideration"). The
principal changes from the Original Merger Agreement to the Amended Merger
Agreement are summarized in Item 4(b)(1) below, and the Amended Merger Agreement
is filed as Exhibit (c)(3) hereto and is incorporated herein by reference.
The Schedule 14D-1 states that the principal executive offices of the
Purchaser and Three Cities are located at 650 Madison Avenue, New York, New York
10022.
ITEM 3. IDENTITY AND BACKGROUND
The second paragraph under "Stock Options" in Item 3(b)(i) is hereby
amended and restated in its entirety as follows:
The transactions contemplated by the Amended Merger Agreement will
constitute a "change in control" for purposes of the Company's existing stock
option plans and stock option grants. As a result, all outstanding options will
become vested and exercisable upon the occurrence of a "change in control" (as
respectively defined in such plans and grants). Mr. Daniel F. Clark was granted
50,000 options in June 1998 with an exercise price of $5.125, and Messrs.
Bernie Bartoszek, Ed Gravell, David Roesler, and Joseph Strange were granted
(i) 5,000, (ii) 10,000, (iii) 10,000, and (iv) 5,000 options, respectively, in
November 1998 with an exercise price of $5.125, and are the only executive
officers having options with an exercise price that is less than $6.50. No
director of the Company has options with an exercise price of less than $6.50.
The paragraph under "Indemnification" in Item 3(b)(i) is hereby amended
and restated in its entirety as follows:
Indemnification. Under the terms of the Amended Merger Agreement, the
Company (as the surviving corporation in the Merger) will honor, and will not
amend or modify for a period of not less than six years after the date of the
Amended Merger Agreement, any and all obligations of the Company and its
subsidiaries to indemnify present and former directors, officers or employees of
the Company or its subsidiaries with respect to matters which occur on or prior
to the date of the
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Merger, whether provided in the certificate of incorporation or by-laws of the
Company or any of its subsidiaries, in certain of the Company's employment
agreements listed on an exhibit to the Amended Merger Agreement or under the
DGCL. The Company will maintain in effect for not less than six years after the
date of the Merger with respect to occurrences or omissions prior to the date of
the Merger the Company's policies of directors and officers' liability insurance
(which need not insure the Company against risk other than the Company's
obligation to insure officers and directors) with coverage limits comparable to
those of the policies in effect at the date of the Amended Merger Agreement (the
"Current Policies") to the extent that insurance can be purchased for premiums
totaling not more than $100,000 plus any premiums paid for the Current Policies
which are refunded because the Current Policies are terminated before their
expiration dates (if that occurs), or to the extent that coverage cannot be
purchased for that amount, reduce the coverage or increase the deductible amount
in order to obtain the maximum coverage which can be purchased for that amount.
Item 3(b)(ii) is hereby amended and restated in its entirety as
follows:
(ii) Terms of the Amended Merger Agreement. The summary of the Amended
Merger Agreement contained in the "Introduction" and in Sections 2, 7, 11 and 16
of the Offer to Purchase, dated January 4, 1999, as supplemented by the those
terms summarized in Item 4(b)(1) below, is incorporated herein by reference.
Such summary should be read in its entirety for a description of the terms and
provisions of the Amended Merger Agreement, and the Amended Merger Agreement is
incorporated herein by reference.
ITEM 4. THE SOLICITATION OR RECOMMENDATION
(a) RECOMMENDATIONS OF THE BOARD OF DIRECTORS
Item 4(a) is hereby amended and supplemented by addition of the
following:
At a meeting held on February 4, 1999, the Company's Board of Directors
(the "Board") unanimously (i) approved the Revised Offer and the terms of the
Amended Merger Agreement, (ii) determined that the terms of the Revised Offer
and the Merger are fair to, and in the best interests of, holders of Shares and
(iii) recommended that holders of Shares accept the Revised Offer and tender
their Shares pursuant to the Revised Offer. Messrs. Uhrig and Wright did not
participate in such meeting since they are affiliated with the Purchaser.
Accordingly, the Board (excluding Messrs. Uhrig and Wright) unanimously
recommend that the stockholders of the Company tender their Shares pursuant to
the Revised Offer. A copy of the Company's letter to the stockholders of the
Company communicating the Board's recommendation is filed as Exhibit (a)(10)
hereto and is incorporated herein by reference.
(b)(1) BACKGROUND
Item 4(b)(1) is hereby amended and supplemented by addition of the
following:
On January 25, 1999 , the Company received a letter from Managed Health
Care Associates, Inc. ("MHA") in which MHA expressed interest in making a
proposal to acquire all of the Common Shares at a price of $8.00 per Share
contingent on MHA's being satisfied with the results of a due diligence
investigation of the Company, which MHA stated it could complete in 8 days.
Additionally, MHA informed the Company that it had commenced litigation against
the Company in the Delaware Chancery Court. (See Item 8(e) of this Amendment No.
2). In MHA's complaint filed in connection with such litigation, MHA alleged,
among other things, that on December 22, 1998, Mr. Ritterbush, a director of the
Company, met with several directors of MHA and that MHA informed Mr. Ritterbush
that it was prepared to pay $8.00 per Share in cash for each outstanding Share.
Mr. Ritterbush did meet with MHA on December 22, 1998 but strongly disagrees
with MHA's characterization of its interest.
On January 26, 1999, counsel for the Company received a letter from
counsel for MHA which stated, among other things, that (i) MHA's proposal was to
purchase the Company for $8.00 per Share, net to the seller in cash, (ii) MHA
was seeking to obtain the financing necessary to complete the transaction,
(iii) MHA intended to perform a due diligence investigation of the Company and
(iv) MHA expected the Company to pay any termination fees due to the Purchaser
upon
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termination of the Original Merger Agreement. The letter also stated that MHA
would withdraw, without prejudice, its previously commenced litigation once the
Company confirmed to MHA that the Company would not commence litigation in
connection with MHA's proposal. A copy of this letter has been filed as Exhibit
(a)(11) hereto and is incorporated by reference herein.
As required under the Original Merger Agreement, the Company informed
the Purchaser of its discussions with MHA and continued to do so throughout
such discussions.
The Board met by teleconference on January 26, 1999, with the Company's
financial and legal advisors participating. Messrs. Uhrig and Wright did not
participate in such meeting. At such meeting, the Board created a Special
Committee, consisting of Messrs. Reitnouer, Barber, Meyer, and Simpson (the
"Special Committee"), to assist the Board in considering the MHA proposal. After
discussion, the Board decided to permit representatives of MHA to begin a due
diligence investigation of the Company on January 27, 1999.
On January 29, 1999, the Company received from MHA a letter signed by
representatives of Banque Nationale de Paris ("BNP") and MHA in which BNP stated
that, assuming satisfactory completion by MHA and BNP of a due diligence
investigation with respect to the assets and businesses of the Company,
including satisfaction as to the status of the Stockholder Suits and the
operating performance of the Company's MasterPlan division, BNP was highly
confident that it would be able to arrange a syndicate of lenders for the
proposed financing necessary to complete an acquisition of the Company by MHA at
a price of $8.00 per Share. A copy of this letter has been filed as Exhibit
(a)(12) hereto and is incorporated by reference herein.
Under the Original Merger Agreement, the Company had the right to
consider an acquisition proposal which met the definition of a Superior Proposal
if it was submitted within 20 business days after the Purchaser filed its
Schedule 14D-1. February 2, 1999 was the last day of that 20 business day
period. On February 2, 1999, after MHA had completed its initial due diligence,
counsel for the Company received a letter from counsel for MHA stating that MHA
wished to consummate a transaction in which it would be willing to pay $7.00 per
Share in cash for all outstanding Common Shares, contingent on MHA's being
satisfied with the results of its further due diligence and negotiating a
satisfactory merger agreement, and conditioned upon the Company's not disclosing
MHA's identity or the identities of its stockholders in the Company's public
filings (the "MHA Proposal"). A copy of this letter has been filed as Exhibit
(a)(13) hereto and is incorporated by reference herein. The letter from counsel
for MHA was accompanied by a new letter from BNP which was revised later in the
day by BNP. The revised letter stated that BNP was highly confident that BNP
could arrange a syndicate of lenders to finance a transaction at a price of $7
per Share (stating the proposed financing needs to be $46 million plus closing
costs), conditioned on, among other things, BNP's and MHA's "completing due
diligence of the assets and business of COHR" with results satisfactory to MHA
and BNP, "including satisfaction as to the status of pending litigation and the
operating performance of MasterPlan" and subject to final agreement by MHA, MHA
stockholders, and BNP on the final terms, conditions and pricing of the
syndicated loan. A copy of this letter has been filed as Exhibit (a)(14) hereto
and is incorporated by reference herein.
The Special Committee met once and the Board met twice by
teleconference on February 2, 1999 to discuss the letters from MHA and BNP, with
the Company's financial and legal advisors participating at such meetings.
Messrs. Uhrig and Wright left the first Board meeting after an informational
report on the status of the MHA discussions and did not participate in the
second Board meeting. After its first meeting, the Board instructed the
Company's financial and legal advisors to attempt to obtain further
clarification of the MHA Proposal.
On February 2, 1999, counsel for the Purchaser sent a letter to counsel
for the Company expressing its view that the letters from counsel for MHA and
from BNP did not constitute a Superior Proposal, as defined in the Original
Merger Agreement. The letter from counsel for the Purchaser asserted, among
other things, that (1) the letters from counsel to MHA and BNP did not
constitute a proposal but at most constituted a statement that at some time in
the reasonably near future MHA might be in a position to make a proposal and (2)
the letters made it clear that MHA did not have the financial resources
necessary to carry out the transaction described in the letter. Therefore, the
Purchaser asserted (i) the letters from counsel for MHA and from BNP did not
satisfy the requirement in the Original Merger Agreement that a Superior
Proposal be received within 20 business days after the Purchaser's Schedule
14D-1 was filed with the SEC (which period ended on February 2, 1999), (ii) MHA
could not meet a requirement that to be a "Superior Proposal," a proposal had to
be from a proposed acquirer which the Board determines in good faith has the
financial resources necessary to carry out the transaction, and (iii) the highly
contingent nature of the confidence expressed in the letter from BNP, combined
with the fact that MHA was seeking 100% financing, made it difficult to view
what was described in the letter from MHA's counsel as "not subject to a
financing contingency" (another requirement for a proposal to constitute a
Superior Proposal). A copy of this letter has been filed as Exhibit (a)(15)
hereto and is incorporated by reference herein.
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At the Board's second meeting on February 2, 1999, the Board, after
consultation with the Company's financial and legal advisors (who, among other
things, reported on their further discussions with MHA), deemed itself to be in
receipt of a Superior Proposal (as defined in the Original Merger Agreement).
The Board considered, among other things, that it had been told that Advent
International Corporation, a stockholder of MHA, and other MHA stockholders had
agreed to guarantee up to $30 million of MHA's borrowings. On the next day, the
Company received a letter in which Advent and the other MHA stockholders
confirmed that they had committed up to $30 million in the form of cash or
guarantees to BNP and further stated that the commitment "is subject to all the
limitations contained in the letter dated February 2, 1998 [sic] and BNP's
highly confident letter attached thereto, which limitations are incorporated
herein by reference." A copy of this letter has been filed as Exhibit (a)(16)
hereto and is incorporated by reference herein.).
Later on February 2, 1999, counsel for the Company informed counsel for
the Purchaser of the Board's determination. Counsel for the Company stated that
(i) the Board did not agree with the Purchaser's interpretation of the Original
Merger Agreement, (ii) the Board deemed itself to be in receipt of a Superior
Proposal (as defined in the Original Merger Agreement), (iii) the Board had 10
business days to consider and accept, if it resolved to do so, such proposal,
and (iv) if the Board resolved to accept such proposal, the Purchaser would have
10 business days from notice thereof to match the price per Share offered in
such proposal.
On February 3, 1999, the Purchaser sent a letter to Lynn Reitnouer, the
Chairman of the Board, in which the Purchaser (i) reiterated its belief that the
February 2, 1999 letter from counsel for MHA, as supplemented, did not meet the
minimum requirements for receipt of a Superior Proposal, but (ii) proposed to
modify the Original Merger Agreement so (a) the Purchaser would pay $5.50 per
Share for Shares which are purchased through the Offer, (b) the expiration date
of the Offer would be not less than 10 business days and not more than 20
business days after the revised terms of the Offer are announced, (c) the
Purchaser would pay, promptly after the Offer expires, $5.50 for each Share
properly tendered and not withdrawn, (d) as promptly as practicable after the
expiration of the Offer, the Purchaser would cause the Merger to take place and
the Company's stockholders to receive $5.50 per Share as a result of the Merger,
(e) if the Stockholder Suits were settled by August 2, 1999 on a basis which
would not require the Company to pay more than $1 million, net of any insurance
proceeds, the Purchaser would pay an additional $1.50 per Share to the persons
whose Shares were purchased through the Offer or who were stockholders at the
time of the Merger (increasing the total payment to $7.00 per Share), and (f)
provisions relating to offers by persons other than the Purchaser would be
deleted from the Original Merger Agreement. The letter said that proposal would
remain available until 7:00 P.M., New York City time, on February 3, 1999. A
copy of this letter has been filed as Exhibit (a)(17) hereto and is incorporated
by reference herein.
The Board met on February 3, 1999 to consider the new proposal from the
Purchaser, with the Company's financial and legal advisors participating.
Messrs. Uhrig and Wright did not participate in the meeting. Following the
meeting, at the request of the Board, the Company's financial and legal advisors
informed the Purchaser that the members of the Board participating had
unanimously rejected the Purchaser's new proposal. They said that the Board
would continue to pursue the MHA transaction, but would consider a further offer
from the Purchaser if the Purchaser offered $7.00 per Share, without
contingencies. After that proposal was rejected by the Purchaser, such advisors
indicated that the Board had authorized them to state that the Board might be
willing to consider an offer of $6.50 per Share which is payable quickly and not
subject to contingencies (including the outcome of efforts to settle the
Stockholder Suits).
On February 3, 1999, the Purchaser announced that the Expiration Time
would be extended to 12:00 Midnight, New York City time, on February 16, 1999.
On February 3, 1999, the Company received a draft merger agreement from
MHA.
On February 4, 1999, Mr. Uhrig, on behalf of the Purchaser, met with
Mr. Reitnouer in Los Angeles and said the Purchaser would be willing to offer
$6.50 per Share, payable without regard to whether or on what basis the
Stockholder Suits might be settled, and set forth the terms of the Revised
Offer. This offer expired at the end of the day on February 4, 1999, and was
conditioned on the Company not disclosing it to MHA until the next day.
Later on February 4, 1999, the Board met to consider the new proposal
from the Purchaser, with the Company's financial and legal advisors
participating. Messrs. Uhrig and Wright did not participate in the meeting. The
Board (i) approved the Revised Offer proposed by the Purchaser, the Merger, and
the terms of the Amended Merger Agreement, (ii) determined that the terms of the
Revised Offer and the Merger are fair to and in the best interests of the
Company's stockholders (other
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than the Purchaser and its affiliates), and (iii) recommended that the
Company's stockholders accept the Revised Offer and tender their Shares in
response to it. At that meeting, Lehman Brothers discussed with the Board the
Revised Offer and various factors that should be considered in connection with
such offer, including the alternative of negotiating further with MHA.
Later at the February 4, 1999 Board meeting, at the request of the
Board, Lehman Brothers orally presented its opinion to the Board that the
consideration of $6.50 per Share was fair from a financial point of view to the
Company's stockholders (other than the Purchaser and its affiliates) and later
delivered its written opinion confirming such oral opinion. The Board also
approved amending the Original Merger Agreement to incorporate the terms of the
Revised Offer and Merger.
Prior to the opening of trading on February 5, 1999, the Company
announced the amended terms of the Revised Offer and the extension of the
Expiration Time of the Revised Offer to midnight, New York City time, on
February 24, 1999.
On February 5, 1999 the Company and the Purchaser entered into the
Amended Merger Agreement.
The Amended Merger Agreement differs from the Original Merger Agreement
principally in that:
- the cash price of the Revised Offer is $6.50 per Share,
without regard to the outcome of efforts to settle the
Stockholder Suits (i.e., with no change in what is being paid
based upon whether the Stockholder Suits are settled);
- the Expiration time of the Revised Offer (midnight, New York
City time, on February 24, 1999) may not be extended beyond
March 8, 1999 without the Company's consent;
- the Merger is no longer conditioned on the Purchaser and its
stockholders owning at least 85% of the outstanding Shares
after the Purchaser acquires the Shares which are tendered in
response to the Revised Offer;
- because the price being paid in the Revised Offer will be
$6.50 per Share without regard to the outcome of the efforts
to settle the Stockholder Suits, the Merger Consideration will
be $6.50 per share without regard to the outcome of the
efforts to settle the Stockholder Suits; and
- the provisions which permitted the Company to entertain
unsolicited acquisition proposals and terminate the Original
Merger Agreement because of a Superior Proposal were deleted
(the last day for the Company to receive an acquisition
proposal which could have been a basis for it to terminate the
Original Merger Agreement was February 2, 1999).
(2) REASONS FOR THE RECOMMENDATIONS
Item 4(b)(2) is hereby amended and supplemented by addition of the
following:
In addition to the factors the Board considered in making
determinations and recommendations with respect to the initial Offer of the
Purchaser pursuant to the Original Merger Agreement, the Board considered
numerous other factors in making determinations and recommendations with respect
to the Revised Offer, including, without limitation, the following:
(i) The cash price of $6.50 per Share in the Revised Offer,
without regard to the outcome of the efforts to settle the Stockholder
Suits, is significantly greater than the Purchaser's price of $5.375 in
the initial Offer and significantly more certain than the contingent
price of $6.375 in the initial Offer. Such price is also more certain
than the $7.00 per Share price contained in the MHA Proposal.
Additionally, the difference between the $7.00 per Share contained in
the MHA Proposal and the $6.50 per Share contained in the Revised Offer
decreases if such amounts are risk adjusted to their respective present
values because the Revised Offer has fewer contingencies and can be
consummated more quickly.
(ii) The high likelihood that the Revised Offer and Merger
would be consummated, including the ability of the Three Cities Funds
to finance the Revised Offer and the Merger, the absence of a financing
condition, and the absence of a condition that there be no material
adverse change in the Company after December 24, 1998.
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(iii) Although the Board received a bid from MHA for $7.00 per
Share and deemed it a receipt of a Superior Proposal (as defined in the
Original Merger Agreement), there was no certainty that the MHA
Proposal would be consummated. The MHA Proposal was subject to MHA and
its stockholders being satisfied with the results of their additional
due diligence, and BNP being satisfied with its due diligence,
including with respect to the pending litigation and the operating
performance of the Company's MasterPlan division, and the execution of
a satisfactory merger agreement. Additionally, MHA's initial draft of
its merger agreement with the Company contained significantly more
representations and warranties by the Company than the Original Merger
Agreement, and MHA discussed the possibility of adding a material
adverse change condition and a cash or cash equivalent condition to
consummating the MHA Proposal. This, together with the Company's
further discussions with MHA, indicated to the Company that negotiating
definitive agreements with MHA providing for $7.00 per Share would
likely be more difficult than it originally anticipated, as compared to
the relative certainty of completing a transaction with the Purchaser
at $6.50 per Share more quickly.
(iv) The risks to the Company, if it continued to pursue the
MHA Proposal, of not completing a transaction with MHA, including (a)
the adverse effect a failed transaction would have on the Company's
customer and vendor relationships and employee morale and (b) the
potential competitive harm to the Company in light of the confidential
and proprietary information provided or to be provided to MHA, a
competitor of the Company.
(v) The harm to the Company's financial position if the
Original Merger Agreement was terminated and the MHA Proposal was not
consummated since the Company would have had to pay to the Purchaser a
termination fee of $1.7 million and certain other costs and expenses.
(vi) The low probability that the MHA Proposal would be
improved with a higher price per Share or with a reduction in
contingencies. The Board specifically considered that MHA reduced the
price at which it expressed interest from $8.00 per Share to $7.00 per
Share after its initial due diligence. In addition, the Original Merger
Agreement effectively required MHA to make its best bid by February 2,
1999 since such bid could be matched by the Purchaser under the
Original Merger Agreement, and the Board therefore believed that if MHA
were willing to make a bid higher than $7.00 per Share, it would have
done so by February 2, 1999.
(vii) The fact that the Purchaser's revised proposal to the
Company setting forth the Revised Offer expired on February 4, 1999,
the same day it was first offered to the Company, and the condition
that such offer not be disclosed to MHA until the next day.
(viii) The oral opinion of Lehman Brothers delivered on
February 4, 1999 (which opinion was subsequently confirmed in writing
on the same day), to the effect that, as of the date of such opinion
and based upon and subject to certain matters stated in such opinion,
the $6.50 per Share cash consideration to be offered to holders of
Shares (other than the Purchasers and its affiliates) in the Revised
Offer and the Merger was fair, from a financial point of view, to such
holders. The full text of Lehman Brothers' written opinion, which sets
forth the assumptions made, matters considered and limitations on the
review undertaken by Lehman Brothers, is attached hereto as Annex A and
is incorporated herein by reference. Lehman Brothers' opinion is
directed only to the fairness, from a financial point of view, of the
$6.50 per Share consideration to be offered in the Revised Offer and
the Merger by holders of Shares (other than the Purchaser and its
affiliates) and is not intended to constitute, and does not constitute
a recommendation as to whether any stockholders should tender Shares
pursuant to the Offer. Holders of Shares are urged to read such opinion
carefully in its entirety.
In considering the Revised Offer, the Board did not assign relative
weights to the above factors or any of the other factors considered by the Board
or determine that any factor was more significant than another. Rather, the
Board viewed its position and recommendations as being based on the totality of
the information presented to and considered by it. In addition, it is possible
that different members of the Board assigned different weights to the various
factors described above.
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ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Item 5 is hereby amended and supplemented by addition of the following:
As part of its role as exclusive financial advisor, Lehman Brothers has
delivered to the Board an opinion that the consideration of $6.50 per Share to
be offered in the Revised Offer and Merger was, as of February 4, 1999, fair to
the Company's stockholders (other than the Purchaser and its affiliates).
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8 is hereby amended and supplemented by addition of the following:
(d) ANTITRUST COMPLIANCE. Pursuant to the requirements of the Hart
Scott Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the
Company filed a Notification and Report Form with respect to the Offer and the
Merger with the Antitrust Division of the Department of Justice and the Federal
Trade Commission ("FTC") on January 15, 1999. On January 26, 1999, the FTC
informed counsel for the Company that the FTC had granted early termination of
the waiting period under the HSR Act for the purchase of the Shares by the
Purchaser pursuant to the Offer and the Merger.
(e) CERTAIN LITIGATION. On January 25, 1999, MHA filed a complaint in
the matter of Managed Healthcare Associates, Inc., a New Jersey corporation, v.
COHR Inc., a Delaware corporation in Delaware Chancery Court. Among other
things, MHA sought declaratory and injunctive relief requiring the Company to
permit MHA to make its proposal despite standstill provisions of an existing
confidentiality agreement between MHA and the Company and enjoining the Company
from consummating the transaction contemplated by the Original Merger Agreement.
ITEM 9. MATERIALS TO BE FILED AS EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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+(a)(8) Supplement, dated February 5, 1999, to Offer to Purchase dated
January 4, 1999.
+(a)(9) Letter of Transmittal (amended).
*(a)(10) Text of letter to stockholders of the Company dated January 8, 1999.
(a)(11) Text of letter from counsel for MHA to counsel for the Company
dated January 26, 1999.
(a)(12) Text of letter from BNP to MHA dated January 27, 1999.
(a)(13) Text of letter from counsel for MHA to counsel for the Company
dated February 2, 1999.
(a)(14) Text of letter from BNP to MHA dated February 2, 1999.
+(a)(15) Text of letter from counsel for the Purchaser to counsel for the
Company dated February 2, 1999.
(a)(16) Text of letter from MHA stockholders to the Company dated February
3, 1999.
+(a)(17) Text of letter from the Purchaser to the Company dated February 3,
1999.
*(a)(18) Opinion of Lehman Brothers Inc. dated February 4, 1999.
(c)(3) Amended and Restated Plan and Agreement of Merger, dated as of
February 4, 1999.
- ----------
* Included in materials delivered to stockholders of the Company.
+ Filed as an exhibit to the Purchaser's Amendment No. 1 to Tender Offer
Statement on Schedule 14D-1 filed on February 5, 1999.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
COHR Inc.
By:/s/ RAYMOND E. LIST
-------------------------------------
Raymond E. List
Chief Executive Officer
Dated as of February 8, 1999
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