SCHEDULE 14C
(RULE 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[X] Preliminary Information Statement Confidential, for use by
the Commission only as
(as permitted by Rule 14c-5(d) (2))
Definitive Information Statement
RVM INDUSTRIES, INC.
(Name of Registrant as Specified in Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (check the appropriate box):
No fee required
[X] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11
(1) Title of each class of securities to which the transaction
applies: Common Stock
(2) Aggregate number of securities to which transaction applies:
175,765 shares
(3) The filing fee is based upon a purchase price of $0.05 per
share, which is the most recent bid price per share of common stock.
(4) Proposed maximum aggregate value of transaction: $8,788.25
(5) Total fee paid: $1.76
Fee paid previously with preliminary materials
Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
RVM INDUSTRIES, INC.
753 WEST WATERLOO ROAD
AKRON, OH 44314-1519
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER 16, 2002
TO THE STOCKHOLDERS OF RVM INDUSTRIES, INC.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of RVM
Industries, Inc. (the "Company" or "RVM") for the fiscal year ended March 31,
2002 will be held at the RVM Industries, Inc. Corporate Offices, 753 W. Waterloo
Road, Akron, Ohio on Monday, December 16, 2002 at 9:00 a.m., Eastern Standard
Time, for the following purposes:
1. To elect one (1) individual as a director of the Company for a term
of three (3) years.
2. To transact such other business as may properly come before the
Annual Meeting and any adjournments thereof.
The directors have set the close of business on November 1, 2002 as the record
date for the Annual Meeting. Stockholders of record at the close of business on
the record date have the right to receive notice of and to vote at the Annual
Meeting and any adjournments thereof. Management of the Company is not
soliciting proxies in connection with the Annual Meeting, and stockholders are
requested NOT to send proxies to the Company
On July 3, 2002, JTB Enterprises, Inc., a Delaware corporation ("JTB")
incorporated by Jacob Pollock, Chairman and Chief Executive Officer of RVM, and
Richard D. Pollock, a director and President of RVM, acquired 1,761,74 shares or
90.93% of RVM's Common Stock from members of the Pollock families. Acting
pursuant to Section 253 of the Delaware General Corporation Law, and the
approval of its board of directors and stockholders, JTB, on November 13, 2002,
took preliminary steps to merge RVM into JTB. No vote of the Board of Directors
of RVM or of its stockholders is required to approve the merger. JTB will be the
surviving corporation in the merger. However, in order to satisfy federal and
state notice requirements, the merger will not be effective until December 19,
2002. As soon as practicable after the effective date of the merger, and upon
surrender of any certificate for RVM shares, each stockholder of RVM, other than
JTB, will receive cash consideration for the surrendered shares. Each
stockholder, other than JTB, may exercise appraisal rights under Delaware law in
lieu of receiving the offered merger consideration. The reasons for the merger
and a more detailed description of its terms, as well as a description of
Delaware appraisal rights are contained in the accompanying Information
Statement under the caption "Questions and Answers about the Merger" and "Merger
of the Company into JTB Enterprises, Inc."
Jacob Pollock
Secretary
Akron, Ohio
November 25, 2002
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE TRANSACTION CONTEMPLATED IN THIS
INFORMATION STATEMENT, PASSED UPON THE MERITS OR FAIRNESS OF THE TRANSACTION OR
PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS INFORMATION
STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
OTHER THAN THOSE CONTAINED IN THIS INFORMATION STATEMENT, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. YOUR PROXY IS NOT BEING SOLICITED. THE INFORMATION IN THIS
INFORMATION STATEMENT MAY ONLY BE ACCURATE ON THE DATE OF THIS INFORMATION
STATEMENT.
WE URGE YOU TO READ AND CONSIDER CAREFULLY THIS INFORMATION STATEMENT IN ITS
ENTIRETY.
RVM INDUSTRIES, INC.
INFORMATION STATEMENT
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD DECEMBER 16, 2002
GENERAL INFORMATION
This Information Statement is being furnished to stockholders of RVM Industries,
Inc., a Delaware corporation (the "Company" or "RVM"), on or about November 25,
2002, in connection with the Annual Meeting of Stockholders of the Company, to
be held at the RVM Industries, Inc. Corporate Offices, 753 W. Waterloo Road,
Akron, Ohio at 9:00 a.m., Eastern Standard Time, on December 16, 2002 and at any
adjournment thereof (the "Annual Meeting"). The Company's principal executive
offices are located at 753 W. Waterloo Road, Akron, Ohio 44314-1519; telephone
(330) 753-4545.
WE ARE NOT ASKING YOU FOR A PROXY, AND YOU
ARE REQUESTED NOT TO SEND US A PROXY
VOTING SECURITIES AND RECORD DATE
Only stockholders of record at the close of business on November 1, 2002 (the
"Record Date") have the right to receive notice of and to vote at the Annual
Meeting and any adjournment thereof. As of the Record Date, 1,937,505 shares of
the Company's $0.01 par value common stock (the "Common Stock") were issued and
outstanding. There were no shares of preferred stock of the Company issued and
outstanding as of the Record Date, and there are presently no such shares issued
and outstanding. Each stockholder of record is entitled to one vote for each
share held.
Under Delaware law and the Company's Certificate of Incorporation and By-Laws,
if a quorum is present at the Annual Meeting, the one nominee for election as
director who receives the greatest number of votes cast for the election of a
director at the Annual Meeting by the shares present and entitled to vote will
be elected as directors. The election of the one director is the subject of
Proposal No. 1 below. An abstention from voting any share with respect to the
election of any nominee for director will have the practical effect of a vote
against that nominee. A broker non-vote with respect to any share will not
affect the election of any director, since the share is not considered present
for voting purposes. However, JTB Enterprises, Inc. ("JTB"), which holds 90.93%
of the shares of Common Stock, can ensure the election of the nominee for
director by voting its shares in favor of the nominee. (See "Vote of Principal
Stockholder," below). One-third of the outstanding shares of the Common Stock is
required to be present in person or by proxy at the Annual Meeting to constitute
a quorum for the transaction of business.
VOTE OF PRINCIPAL STOCKHOLDERS
No shares of the Company's Preferred Stock are outstanding. The board of
directors of JTB, which holds 90.93% of the outstanding shares of RVM Common
Stock, has advised the Company that JTB intends to vote its shares for the
election of each nominee for director (Proposal No. 1). Thus, the required vote
is assured, and it is expected that each nominee will receive the necessary
votes for election. Jacob Pollock, Chairman of the Board and Chief Executive
Officer of RVM, his son Richard D. Pollock, a director and President of RVM, and
members of the Pollock families are JTB's sole stockholders.
SUMMARY TERM SHEET
- JTB Enterprises, Inc., a Delaware corporation ("JBT"), with its
principal executive offices co-located with the offices of RVM
Industries, Inc., a Delaware Corporation ("RVM"), at 753 West
Waterloo Road, Akron, Ohio 44314-1519 (telephone, 330.753.4545),
owns 1,761,740 shares of RVM's common stock, par value $0.01 per
share, or 90.93% of the 1,937,505 shares of such stock ("RVM
Common Stock") outstanding. RVM has no other class of capital
stock outstanding.
- JBT is a privately-owned Delaware corporation formed on July 2,
2002. Since the date of its incorporation, JTB has engaged in no
business operations. In the future it may engage in (i) the
manufacture of aluminum billets, steel trailers or aluminum sign
blanks and traffic, warning, and street signs or (ii) in an
entirely different and unrelated line of business. JTB has not
been convicted in a criminal proceeding during the past five
years and it has not been a party to a judicial or administrative
proceeding during the past five years that resulted in a
judgment, decree or final order enjoining it from future
violations of, or prohibiting activities subject to, federal or
state securities laws, or a finding of any violation of federal
or state securities laws.
- RVM is a publicly held holding company. Its principal executive
offices are co-located with the offices of JTB at 753 West
Waterloo Road, Akron, Ohio 44314-1519 (telephone, 330.753.4545),
Waterloo Holding Company (fka Ravens, Inc.), Albex Aluminum,
Inc., and Signs and Blanks, Inc. are wholly owned subsidiaries of
RVM. RVM's predecessor, Ravens Metal Products, Inc., was
incorporated in the State of West Virginia on April 9, 1956 and
reincorporated in the State of Delaware on September 3, 1986.
Jacob Pollock acquired majority control on May 3, 1991.
- Prior to the sale of most of its assets, the principal business
of Waterloo Holding Company (then operated as Ravens, Inc.) was
the design and manufacture of truck trailers, consisting of
platform (flatbed) trailers, drop deck trailers, dump trailers,
and dump truck bodies. Since the late 1950s, Ravens designed and
manufactured durable, lightweight aluminum trailers and bodies,
which provide the advantage of lower operating costs plus higher
legal payload capacity. Ravens' products were primarily made with
aluminum bodies and aluminum chassis. Albex operated three
extrusion presses (1,400 ton, 2,200 ton, and 3,000 ton) for
standard and custom soft alloy aluminum extruded shapes. Several
of aluminum's physical properties such as tensile strength,
corrosion resistance, thermal conductivity, lighter weight than
steel, and scrap value for recycling are attractive to a wide
range of markets. Albex sold to manufacturers, fabricators and
distributors in the transportation, building and construction,
consumer durables, and other aluminum extrusion markets. SABI is
a fully automated manufacturer of aluminum sign blanks and
traffic, warning, and street signs. SABI distributes its
manufactured products and purchased sign posts to a market
approximating $350 million per year. Approximately two-thirds of
SABI's sales are to fabricator/dealers that purchase aluminum
blanks, cover them with reflective sheeting that is often silk
screened, and then sell the finished signs to governmental
agencies. Approximately one-third of SABI's sales are directly to
governmental agencies in the form of blanks or signs
silk-screened by SABI's print shop.
- The name, business address and business telephone number of each
of RVM's executive officers and directors are as follows:
Jacob Pollock President, Secretary and Director
753 West Waterloo Road
Akron, Ohio 44134-1519
330.753.4545
Richard D. Pollock Vice President, Treasurer and Director
753 West Waterloo Road
Akron, Ohio 44134-1519
330.753.4545
Each director and executive officer of RVM also currently serves
as a director and executive officer of JTB. No director or
officer of RVM or JTB has been convicted in a criminal proceeding
during the past five years or been a party to a judicial or
administrative proceeding during the past five years that
resulted in a judgment, decree or final order enjoining him from
future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation
of federal or state securities laws.
- RVM will merge into JTB on or about December 19, 2002, pursuant
to the provisions of Section 253 of the Delaware General
Corporation Law.
- The proposed merger was approved by JTB's Board of Directors on
November 13, 2002 and by its stockholders on November 15, 2002.
- The approval of RVM's Board of Directors or stockholders is not
required to complete the merger.
- The 175,765 shares of RVM Common Stock not owned by JBT will be
purchased in the merger at a purchase price of $0.05 per share,
or an aggregate of $8,788.25 for these 175,765 shares. The price
of $0.05 per share has been determined by JTB's Board of
Directors to be the fair market value; $0.05 per share is the
most recent bid price per share of RVM Common Stock and the
highest bid price per share of such stock since March 12, 2002.
- Each holder of RVM Common Stock, other than JTB, may exercise
appraisal rights under Delaware law in lieu of receiving the
offered merger consideration. To exercise appraisal rights, a
holder of RVM Common Stock must strictly follow the requirements
of Delaware law. A summary describing the requirements that must
be met in order to exercise appraisal rights is set forth below
under the caption "Dissenters' Rights of Appraisal." In addition,
the full text of Section 262 of the Delaware General Corporation
Law, which sets forth appraisal rights as a stockholder of a
Delaware corporation, appears as Appendix B hereto.
- The merger will be effective on or about December 19, 2002.
- In the merger, no security holder of RVM will be treated
differently from any other security holders of RVM, except that
only Jacob Pollock, members of his family and related entities
are stockholders of JTB.
- No provision has been made for any RVM stockholder to gain access
to JTB's corporate files or to permit any stockholder to obtain
legal counsel or appraisal services at JTB's expense.
- There have been no transactions between JBT and RVM during the
past two years. However, on July 3, 2002, JTB acquired 1,761,740
shares of RVM Common Stock in transactions with five RVM
stockholders. Two of those five stockholders, Jacob Pollock and
Richard D. Pollock, serve as executive officers and directors of
RVM and JTB; of the remaining three stockholders, one is the
spouse of Richard D. Pollock, one is the Pollock Family
Foundation and the third is a trust established for the benefit
of the children of Richard D. Pollock. Companies controlled by
Jacob Pollock and Richard D. Pollock also have had dealings with
RVM during the past two years. See the information set forth
below under the captions "Certain Relationships and Related
Transactions" and "Interest of Certain Persons in the Merger."
- There have been no negotiations, transactions or material
contacts between JTB and RVM during the past two years, except as
described above.
- For additional information, see the discussion under the captions
"Questions and Answers about the Merger" and "Special Factors -
Merger of the Company into JTB Enterprises, Inc." below.
TRADING MARKET AND PRICE
RVM's fiscal year end date is March 31st. There is no active trading market for
RVM's common stock (trading symbol "RVMI"); however, the stock is infrequently
traded over-the-counter and quoted on the OTC Bulletin Board and on "pink
sheets" which are published periodically. The high and low trade prices and
shares traded of RVM's common stock as reported by the OTC Bulletin Board for
each quarterly fiscal period during the current fiscal year and the last two
full fiscal years were as follows:
Shares
High Low Traded
--------- ------- ---------
2003
First quarter $ 0.05 $ 0.04 0
Second quarter $ 0.04 $ 0.02 15,600
2002
First quarter $4.500 $1.010 900
Second quarter 1.010 1.010 100
Third quarter 1.010 1.010 200
Fourth quarter 1.010 0.040 16,500
2001
First quarter $4.750 $4.000 7,900
Second quarter 4.750 4.000 11,800
Third quarter 4.250 4.125 3,700
Fourth quarter 4.250 4.000 2,500
The trade prices do not include retail mark-ups, markdowns or commissions.
QUESTIONS AND ANSWERS ABOUT THE MERGER
The following questions and answers are intended to address briefly some
commonly asked questions regarding the merger. These questions and answers may
not address all questions that may be important to you as a stockholder. For
additional information, please refer to the information contained elsewhere in
this Information Statement, the appendices to this Information Statement and the
documents referred to or incorporated by reference in this Information
Statement.
Q. WHAT IS THE PROPOSED TRANSACTION?
A. JTB Enterprises, Inc. will acquire RVM Industries, Inc. through a merger
in which JTB Enterprises, Inc. will be the surviving entity. The terms of
the merger are set forth in the Certificate of Ownership and Merger that
will be filed with the Office of the Secretary of State of the State of
Delaware on or about December 18, 2002 (included with the Information
Statement as Appendix A).
Q. WHAT IS THE PURPOSE OF THE MERGER?
A. As a public company, RVM must comply with reporting and other onerous
requirements of the Securities Exchange Act of 1934 (the "Exchange Act").
The annual cost of legal and accounting fees and other costs associated
with such compliance is many times the market value of the shares held by
non-affiliates. The number of the Company's stockholders has not
measurably increased, nor has there been an active market for RVM Common
Stock, in many years. In addition, RVM recently sold most of its assets
and used the sale proceeds to pay a portion of its bank and other debt.
RVM now has only one asset of potential significant value - certain tax
losses that the Company has not been able to use in recent years. On July
2, 2002, Jacob Pollock, Chairman and Chief Executive Officer of RVM, and
his son, Richard D. Pollock, a director and President of RVM, formed JTB
in contemplation of a possible "going private" transaction. On July 3,
2002, they and other members of the Pollock families transferred to JTB
all their shares of RVM Common Stock, an aggregate of 1,761,740 shares.
As a result of these transfers, JTB now holds 90.93% of the outstanding
RVM Common Stock. The price of $0.05 per share has been determined by
JTB's Board of Directors to be the fair market value; $0.05 per share is
the most recent bid price per share of RVM Common Stock and the highest
bid price per share of such stock since March 12, 2002. Only 175,765
shares are held by persons other than JTB, and the market value of such
shares, based upon the bid price, aggregates only $8,788.25. There have
been no recent trades in RVM Common Stock. RVM's tax losses
(non-operating loss carry-forwards or "NOLs") have potential value only
as an offset against taxes that may be owed if the Company or JTB, as its
successor, enjoys profitable operations in the future. There is no
assurance the NOLs will ever be used, and thus that they ever will have
real value. Following the merger, JTB will be able to make application to
the Securities and Exchange Commission to be relieved of RVM's reporting
and other responsibilities under the Exchange Act. The NOLs will be
unaffected by the merger and will continue to be available for use by
JTB, as successor to RVM.
Q. IF THE MERGER IS COMPLETED, WHAT WILL I RECEIVE FOR MY RVM COMMON STOCK?
A. You will receive $0.05 in cash, without interest, for each share of RVM
Common Stock you own, upon surrender of your stock certificates.
Q. WHEN IS THE MERGER EXPECTED TO BE COMPLETED?
A. The merger will be completed immediately after the Annual Meeting; the
effective date is expected to be not later than December 19, 2002.
Q. WHO IS ENTITLED TO VOTE AT THE ANNUAL MEETING?
A. There will be NO VOTE of RVM stockholders on the merger. However, holders
of record of RVM Common Stock as of the close of business on November 1,
2002 are entitled to vote at the Annual Meeting on the election of
directors. Each stockholder is entitled to one vote for each share of RVM
Common Stock owned. In regard to the election of directors, see the answer
to the next question.
Q. DO I NEED TO ATTEND THE ANNUAL MEETING IN PERSON?
A. It is not necessary for you to attend the Annual Meeting, unless you
intend to vote your shares with respect to the election of directors.
However, as noted above, JTB intends to vote its shares for the nominee
for director, assuring his election. Thus, your vote for or against the
nominee likely will have no effect on the outcome of the election.
Q. WILL I HAVE THE RIGHT TO HAVE MY SHARES APPRAISED IF I DISSENT FROM THE
MERGER AND ELECT NOT TO ACCEPT THE MERGER CONSIDERATION?
A. Yes, you will have appraisal rights for your shares of RVM Common Stock.
If you wish to exercise your appraisal rights, you must strictly follow
the requirements of Delaware law. A summary describing the requirements
you must meet in order to exercise your appraisal rights is set forth
below in the section entitled "Dissenters' Rights of Appraisal." In
addition, the full text of Section 262 of the Delaware General
Corporation, which sets forth your appraisal rights as a stockholder of a
Delaware corporation, appears as Appendix B hereto.
Q. SHOULD I SEND IN MY STOCK CERTIFICATES NOW?
A. No. However, as soon as practicable after December 19, 2002, unless the
Company notifies you otherwise, or unless you decide to dissent from the
merger and exercise your appraisal rights, please return your stock
certificate(s) to RVM Industries, Inc., 753 West Waterloo Road, Akron,
Ohio 44314-1519; ATTENTION: Corporate Secretary. Upon receipt of your
stock certificate(s), the Company promptly will send you a check in the
amount of the merger consideration due you for the surrendered shares of
RVM Common Stock.
Q. WILL I OWE TAXES AS A RESULT OF THE MERGER?
A. The merger may be taxable to each holder of RVM Common Stock receiving
merger consideration. The cash you receive in the merger for your shares
of RVM Common Stock and any cash you receive from exercising your
appraisal rights will be subject to United States federal income tax and
also may be taxed under applicable state, local and other tax laws. In
general, you will recognize gain or loss equal to the difference between
(1) the amount of cash you receive (other than cash that represents
interest you receive in connection with the exercise of appraisal rights,
which will be taxable as ordinary income) and (2) the tax basis of your
shares of RVM Common Stock. You should consult your tax advisor on how
specific tax consequences of the merger apply to you.
Q. WHERE CAN I FIND MORE INFORMATION ABOUT THE COMPANY?
A. RVM files periodic reports and other information with the SEC. You may
read and copy this information at the SEC's public reference facilities.
Please call the SEC at 1-800-SEC-0330 for information about these
facilities. This information is also available at the Internet site
maintained by the SEC at http://www.sec.gov.
Q. WHO CAN HELP ANSWER MY QUESTIONS?
A. If you have questions about the merger after reading this Information
Statement, please contact James R. McCourt, at 330.753.4545.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Each owner of record or holder, to the knowledge of RVM as of November 1, 2002,
of more than 5% of RVM's Common Stock is set forth in the following table:
Title of Name and Address of Beneficial Amount and Nature of Percent of
Class Owner Beneficial Ownership Class
- ------------ ------------------------------ -------------------- ----------
Common Stock JTB Enterprises, Inc. 1,761,470 (1) 90.93
753 West Waterloo Road
Akron, Ohio 44314
Jacob Pollock 1,680,205 (1)(2) 86.70
753 W. Waterloo Road
Akron, Ohio 44314
Richard D. Pollock 120,270 (1)(2)(3) 6.21
753 W. Waterloo Road
Akron, Ohio 44314
The following table shows the ownership of RVM's Common Stock beneficially owned
directly or indirectly by each director, and by all directors and officers of
RVM as a group, as of November 1, 2002:
Title of Name and Address of Beneficial Amount and Nature of Percent of
Class Owner Beneficial Ownership Class
- ------------ ------------------------------ -------------------- ----------
Common Stock Jacob Pollock 1,680,205 (1)(2) 86.70
C. Stephen Clegg 250(4) 0.01
Richard D. Pollock 120,270 (1)(2)(3) 6.21
All directors and officers as a
group (4 persons) 1,761,990 90.94
(1) Jacob Pollock, Richard D. Pollock and other members of the Pollock family
own all the shares of capital stock of JTB and thus indirectly own a
controlling interest in RVM. The RVM shares listed in the table for Jacob
Pollock and Richard D. Pollock represent an indirect interest in RVM
through their respective ownership of JTB stock.
(2) Although Jacob Pollock directly owns no shares of Common Stock, he may be
deemed indirectly to have sole voting and investment power with respect to
1,641,470 shares through his ownership of JTB stock. The remaining 38,735
shares attributed to him are held indirectly by the Pollock Family
Foundation, which also is a JTB stockholder. Jacob Pollock, Gertrude
Pollock, Richard D. Pollock and Bruce Pollock, as trustees, equally share
voting and investment power with respect to these 38,735 shares.
(3) Although Richard D. Pollock directly owns no shares of Common Stock, he
may be deemed to have sole voting and investment power with respect to
4,615 shares through his ownership of JTB stock. Of the remaining 115,655
shares attributed to him, 38,735 shares (as noted in footnote 2) are held
indirectly by the Pollock Family Foundation, of which Richard D. Pollock
is a co-trustee sharing voting and investment power, and 57,690 shares are
held indirectly by an irrevocable trust (also a JTB stockholder) for the
benefit of Richard D. Pollock's children, of which Richard D. Pollock is a
co-trustee, sharing voting and investment power. The remaining 19,230
shares attributed to Richard D. Pollock are indirectly owned by his spouse
through her ownership of JTB, and Richard D. Pollock disclaims beneficial
ownership of these shares.
(4) C. Stephen Clegg has sole voting and investment power with respect to 250
shares.
1,937,505 shares of RVM's common stock are outstanding; RVM has no other class
of equity securities outstanding. JTB owns 1,761,740 shares of RVM's common
stock or 90.93% of the outstanding shares of such stock. Ownership of such
shares by JTB indirectly may be imputed to its five stockholders, as follows:
- --------------------------- ------------------ -------------------- ----------------- ------------------
Stockholder RVM Common Stock Percent of RVM JTB Common Percent of JTB
Shares Common Stock Stock Shares Common Stock
Surrendered Outstanding Issued Outstanding
- --------------------------- ------------------ -------------------- ----------------- ------------------
Jacob Pollock 1,641,470 84.721 1,641.470 93.173
- --------------------------- ------------------ -------------------- ----------------- ------------------
Richard D. Pollock 4,615 0.238 4.615 0.262
- --------------------------- ------------------ -------------------- ----------------- ------------------
Jane E. Pollock 19,230 0.992 19.230 1.092
- --------------------------- ------------------ -------------------- ----------------- ------------------
Pollock Family Foundation 38,735 1.999 38.735 2.199
- --------------------------- ------------------ -------------------- ----------------- ------------------
Richard D. Pollock 57,690 2.978 57.690 3.274
Irrevocable Trust FBO
Brock L. Pollock, Joshua
C. Pollock and Tara M.
Pollock, dated January 4,
1994
- --------------------------- ------------------ -------------------- ----------------- ------------------
TOTAL 1,761,740 90.928 1761.740 100.00
- --------------------------- ------------------ -------------------- ----------------- ------------------
JTB acquired all its ownership of RVM on July 3, 2002; there have been no
transactions in RVM stock within the last sixty days by JTB or any of its
affiliated persons.
PROPOSAL NO. 1
ELECTION OF DIRECTORS
One (1) current director, whose term is expiring, is proposed for re-election at
the Annual Meeting to serve for a term of three (3) years; provided, however,
that he would continue to serve thereafter until his successor were elected and
qualified.
The following information is furnished with respect to the one current director
with a term expiring this year, who has been nominated for re-election as a
director of the Company and has agreed to serve a three-year term if re-elected:
NAME AGE DIRECTOR SINCE PRINCIPAL OCCUPATION; BUSINESS EXPERIENCE
& OTHER DIRECTORSHIPS
Jacob Pollock 78 May 3, 1991 (Term Chairman of the Board of Directors, Chief Executive
expires in 2002) Officer, and Treasurer since May 3, 1991, the date he
acquired controlling interest in the Company; Chairman
of the Board and President of J. Pollock & Company, a
company principally engaged in the sale of aluminum,
private investment, and consulting, since April 1989;
chief Executive officer of Barmet Aluminum corporation,
an aluminum company, from 1949-1989; Director of
Mid-West Spring Manufacturing Company, Inc., Diamond
Home Services, Inc. and several nonpublic companies.
Each of the following individuals is a current member of the Board of Directors,
whose present term of office will continue beyond the Annual Meeting for the
period indicated:
NAME AGE DIRECTOR SINCE PRINCIPAL OCCUPATION; BUSINESS EXPERIENCE
& OTHER DIRECTORSHIPS
C. Stephen Clegg 52 May 3, 1991 (Term Chairman of the Board of Directors and Chief Executive
expires in 2004) Officer of Diamond Home Services, Inc., a marketer and
contractor of installed home improvement products, since
February 1996; Chairman of the Board of Directors of
Mid-West Spring Manufacturing Company, Inc., a
manufacturer of specialty springs, and Globe Building
Materials, Inc., a manufacturer of home building
products, for more than five years; and Director of
Birmingham Steel Corporation.
Richard D. Pollock 46 May 3, 1991 (Term President of the Company since March 31, 1997; President
expires in 2004) of Albex since May 1991; Vice President of J. Pollock &
Company since February 1990; and prior to joining J.
Pollock & Company, Vice President and then President of
Barmet Aluminum Corporation for more than five years.
Richard D. Pollock is the son of Jacob Pollock.
BOARD OF DIRECTORS
During the fiscal year ended March 31, 2002, the Company's Board of Directors
held three regular meetings, and each director attended all meetings of the
Board. Each director attended all committees on which he served during the
fiscal year.
The Company has a standing Audit Committee of the Board of Directors, currently
composed of Richard D. Pollock, Chairman, and C. Stephen Clegg. Functions of the
Audit Committee include recommending the independent public accountants to be
engaged by the Company, approving the scope of the audit performed by the
independent public accountants, reviewing with the independent public
accountants the
financial statements and their accompanying report, and reviewing the Company's
system of internal controls. The Audit Committee held one meeting during the
fiscal year ended March 31, 2002.
The Board of Directors does not have a standing Nominating Committee. The
functions of a nominating committee are performed by the Board of Directors as a
whole.
The Company's Board of Directors has a standing Compensation Committee composed
of Jacob Pollock, Chairman, and C. Stephen Clegg. The Compensation Committee did
not meet during the fiscal year ended March 31, 2002.
The Board's Pension Committee is currently composed of Jacob Pollock, Chairman,
and C. Stephen Clegg. Functions of this committee include administration of the
plans and recommending amounts of contributions by the Company to the plans. The
Committee did not meet during the fiscal year ended March 31, 2002.
The Stock Option Committee consists of Jacob Pollock, Chairman, and Richard D.
Pollock. The Stock Option Committee is responsible for administering the RVM
Industries, Inc. Stock Option Plan. The Committee did not meet during the fiscal
year ended March 31, 2002.
EXECUTIVE OFFICERS
The Company has two executive officers, Jacob Pollock and Richard D. Pollock,
each of whom also serves as a director of the Company; information concerning
these two persons appears above under the caption "Proposal No. 1, Election of
One Director." James R. McCourt, who is not a director, served as Chief
Financial Officer of the Company until his resignation on February 8, 2002; Mr.
McCourt remains a consultant at will to the Company, and no longer is an officer
of the Company. All officers serve at the pleasure of the Board of Directors
without specific terms of office.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Based solely upon a review of copies of Forms 3, 4 and 5 furnished to RVM during
or with respect to the fiscal year ended March 31, 2002, RVM is not aware of any
person subject to Section 16 of the Securities Exchange Act of 1934 with respect
to RVM that failed to file on a timely basis reports required by Section 16(a)
during the most recent fiscal year or prior fiscal years.
COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
The following table discloses compensation in excess of $100,000 awarded to,
earned by or paid to any executive officer:
Name and Principal Fiscal All Other
Position Year Salary Bonus Compensation (1)
- --------------------------- ------ -------- ------- ----------------
Jacob Pollock 2002 $125,000 $ 0 $ 0
Chief Executive Officer 2001 125,000 0 0
2000 129,808 0 0
Richard D. Pollock (2) 2002 193,000 0 376,860
President 2001 193,000 0 4,825
2000 203,776 0 5,011
James R. McCourt (2)(3) 2002 135,000 0 287,700
2001 136,267 0 4,023
(1) Amount contributed to the named person's 401(k) plan account
(2) Mr. Pollock and Mr. McCourt were provided a key executive retention and
compensation package in 2002. The package included (i) a bonus to remain with
the Company through the sale of Ravens, Inc. and the close down and sale of
Albex, Inc. and (ii) a payment in the amount of one-year base salary as
severance pay.
(3) Mr. McCourt resigned as Chief Financial Officer of the Company on February
8, 2002 and remains a consultant at will with the company.
In 1993, RVM adopted a Stock Option Plan, which provides for the granting of
options to acquire up to 50,000 shares of Common Stock. The Plan authorizes the
granting of incentive stock options to employees of the Company and nonqualified
stock options to employees, officers and directors, whether or not on the
Company's payroll or otherwise paid for services. The Plan provides that the
option price shall not be less than 100% (110% in the case of a person owning
more than 10% of the Company's stock) of the current market price of the stock
on the date of the grant and that the term of the option shall be fixed at the
date of the grant. The Plan terminates on July 7, 2003.
Each outside director of RVM is paid $1,000 for each Board of Directors meeting
attended. No additional compensation is paid for attending committee meetings.
In 1998, Mr. Clegg was granted an option to purchase 1,000 shares of Common
Stock. The option has an exercise price of $12.00 per share and expires on March
27, 2003. As of the date of this Information Statement, with the bid price of
the Company's stock at $0.05 per share, these options are substantially
underwater and must be viewed as worthless.
OPTION GRANTS IN LAST FISCAL YEAR
The Company did not grant options in 2002.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
Aggregated Option Exercises in Last Fiscal Year and Fiscal Year End
Option Values
Number of Securities Underlying Value of Unexercised
Unexercised Options at In-the-Money Options at
March 31, 2002 (#) March 31, 2002
Shares
Acquired on Value
Name Exercise (#) Realized Exercisable Unexercisable Exercisable Unexercisable
Jacob Pollock 4,000 0 $ 0 $ 0
Richard D. Pollock 4,625 0 0 0
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee of RVM's Board of Directors consists of Jacob
Pollock, Chief Executive Officer, and C. Stephen Clegg. Mr. Pollock is a
director and Mr. Clegg is Chairman of the Board of Directors of Mid-West Spring
Manufacturing Company, Inc. and Diamond Home Services, Inc., each a public
company, and Globe Building Products, Inc., a nonpublic company. Mr. Pollock is
a member of the Compensation and Benefits Committee of the Board of Directors of
Mid-West Spring Manufacturing Company, Inc.
REPORT OF COMPENSATION COMMITTEE
The Committee has not formulated policies for compensation to either of its two
executive officers, Jacob Pollock and Richard D. Pollock, or to any other
officer that relate compensation to corporate performance. The compensation of
each executive officer is determined by negotiation between the officer and
Jacob Pollock subject to the approval of the Committee and the Board of
Directors.
By: Jacob Pollock, Chairman
C. Stephen Clegg
PERFORMANCE GRAPH
The following line graph shows a comparison of cumulative total returns,
assuming reinvestment of dividends, for a hypothetical investment of $100 made
on March 31, 1996, in the Common Stock of RVM, the NASDAQ Composite Index, and
an index of peer companies ("peer group") selected by RVM. The peer group
consists of the following companies: Dorsey Trailers, Inc., Featherlite Mfg.,
Inc., Miller Industries, Inc./TN, Wabash National Corp., Supreme Industries,
Inc., Easco, Inc., International Aluminum Corporation and Tredegar Industries,
Inc.
RVM believes that the large returns in 1998 and 1997 are due to J.C. Bradford &
Co. making a market in RVM's Common Stock beginning in the first quarter of 1997
and Herzeg Heine Geduld making a market beginning in the fourth quarter of 1998.
In addition, the Company retained investor relation's consultants in January
1998. The decrease in 1999 may be attributed to lower profits and the low volume
of trades.
RVM S&P 500
Industries, Inc. Composite Peer
Index Group
3/31/96 100.00 100.00 100.00
3/31/97 733.33 119.83 131.40
3/31/98 1,599.98 177.34 179.48
3/31/99 587.73 210.08 152.10
3/31/00 620.41 247.77 136.42
3/31/01 522.45 194.06 88.99
3/31/02 0.00 194.18 96.28
[INSERT PERFORMANCE GRAPH]
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
J. Pollock & Company, wholly owned by Jacob Pollock but dissolved on March 15,
2000, purchased materials and provided or contracted for certain administrative
services for the Company and charged the Company at its cost. The cost of such
services totaled $343,420 in 2000, the last year of the service provider's
existence.
The Company leases office and manufacturing space from a corporation in which
Richard Pollock and Bruce Pollock are shareholders. The five-year lease was
extended one year to December 31, 2002, at a monthly base rent of $6,500 with
annual increases determined by the change in the Consumer Price Index, plus the
Company's share of utilities, real estate taxes, insurance, and property
maintenance. The Company paid approximately $129,000 $128,539, and $129,000 in
2002, 2001, and 2000 respectively. Richard Pollock and Bruce Pollock are sons of
Jacob Pollock.
Since September 1, 2000 the Company has leased office space from 753 W. Waterloo
Rd. Limited Partnership, of which Jacob Pollock and his wife are members. The
lease is for three years expiring August 31, 2003 at a monthly base rent of
$5,500 plus the Company's share of utilities, real estate taxes, insurance and
property maintenance. The Company paid $84,000, $82,446, and $83,882 in 2002,
2001, and 2000, respectively.
The Company purchased aluminum materials from The Aluminum Warehouse, Inc.,
owned by Richard D. Pollock Living Trust U/A/D 8/2/94 and Richard D. Pollock
Irrevocable Trust U/A/D 1/4/94, totaling $300,000, $103,076, and $117,906, in
2002 2001, and 2000 respectively. The Company sold aluminum extrusions to The
Aluminum Warehouse, Inc. totaling $ 0, 220,880, and $536,529, in 2002, 2001, and
2000 respectively. $0, $20,836, and$147,826, was receivable at March 31, 2002,
2001, and 2000 respectively.
The Company hired temporary personnel from Flex-Team Incorporated, wholly owned
by the Jacob Pollock Irrevocable Trust. Amounts paid by the Company totaled
$141,420, $88,570 and $378,090, in 2002, 2001, and 2000, respectively.
See Notes 4 and 13 to the consolidated financial statements regarding
acquisitions from and notes payable to related parties. Mr. Pollock as described
in note 13 forgave interest and principle on related party debt. See Notes 7 and
8 to the consolidated financial statements regarding guarantees of certain debt
of the Company by related parties.
Management believes that the terms of the above transactions are comparable to
those that would have been obtainable from unaffiliated sources.
SPECIAL FACTORS -- MERGER OF THE COMPANY INTO JTB ENTERPRISES, INC.
REASONS FOR THE MERGER
As a public company, RVM must comply with reporting and other onerous
requirements of the Securities Exchange Act of 1934 (the "Exchange Act"). The
annual cost of legal and accounting fees and other costs associated with such
compliance is many times the market value of the shares held by non-affiliates.
The number of the Company's stockholders has not measurably increased, nor has
there been an active market for RVM Common Stock, in many years. In addition,
RVM recently sold most of its assets and used the sale proceeds to pay a
portion of its bank and other debt. RVM now has only one asset of potential
significant value - certain tax losses that the Company has not been able to
use in recent years.
On July 2, 2002, Jacob Pollock, Chairman and Chief Executive Officer of RVM,
and his son, Richard D. Pollock, a director and President of RVM formed JTB
Enterprises, Inc. ("JTB") in contemplation of a possible "going private"
transaction. On July 3, 2002, they and other members of the Pollock families
transferred to JTB all their shares of RVM Common Stock, an aggregate of
1,761,740 shares. As a result of these transfers, JTB now holds 90.93% of RVM's
Common Stock.
Only 175,765 shares of RVM Common Stock are held by persons other than JTB, and
the market value of those non-affiliate shares, based upon the bid price,
aggregates only $8,788.25. There have been no recent trades in RVM Common
Stock. RVM's tax losses (non-operating loss carry-forwards or "NOLs") have
potential value only as an offset against taxes that may be owed if the Company
or JTB, as its successor, enjoys profitable operations in the future. There is
no assurance the NOLs will ever be used and have any real value. JTB has no
business operations, and its shares have no readily ascertainable value.
Indeed, the principal value, if any, of JTB's shares will relate to its ability
to utilize the NOLs; that ability will depend upon future profitable operations
and is far from certain.
Following the merger, JTB will be able to make application to the Securities and
Exchange Commission to be relieved of RVM's reporting and other responsibilities
under the Exchange Act. The NOLs will be unaffected by the merger and will
continue to be available for use by JTB, as successor to RVM.
A copy of the Certificate of Ownership and Merger to be filed with the Secretary
of State of the State of Delaware is attached as Appendix A.
VOTING ON THE MERGER
The merger has been approved by the board of directors and stockholders of JTB.
No approval of the Board of Directors or stockholders of RVM is required. There
will be no solicitation and no recommendation, since no stockholder of RVM has
the right or will be given the opportunity to vote on the proposed transaction.
TERMS AND FAIRNESS OF THE MERGER
Each holder of Common Stock, other than JTB, will receive a cash payment of
$0.05 per share, without interest, for each share of Common Stock held on the
effective date of the merger, upon surrender of such holder's stock
certificate(s) (the "merger consideration").
The merger consideration was determined by JTB's Board of Directors based upon
current and recent bid prices per share of RVM Common Stock. No approval of the
Board of Directors or stockholders of RVM is required, the transaction has not
been structured to make such approval necessary and neither RVM's Board of
Directors nor its stockholders have voted on the proposed merger. During the
past two years, RVM has not received any acquisition offer from any
unaffiliated person. No one acting on behalf of the unaffiliated holders of the
175,765 shares of RVM Common Stock to be acquired in the merger has retained an
unaffiliated representative to act on their behalf in negotiating the terms of
the merger that will result in RVM going private. JTB believes the
going-private transaction resulting from the merger is fair to the
unaffiliated security holders of the 175,765 shares of RVM Common Stock to be
acquired in the merger. No director or stockholder of JTB dissented or
abstained from voting on the proposed merger.
The price of $0.05 per share determined by JTB's Board of Directors to be the
fair market value is the most recent bid price per share of RVM Common Stock and
the highest bid price per share of such stock since March 12, 2002. The
directors also considered the fact that RVM has no liquidation value, since its
liabilities exceed its assets. No report, opinion or appraisal was obtained to
support the directors' determination of fair market value. If you are unwilling
to receive the merger consideration, because you
believe the merger consideration to be unfair, or for any other reason, you may
exercise your appraisal rights under Section 262 of the Delaware General
Corporation Law. These rights are described below under the caption "Dissenters'
Rights of Appraisal."
The merger will be completed on or about December 19, 2002. As soon as
practicable after that date, unless the Company notifies you otherwise, or
unless you decide to exercise your appraisal rights, please complete, sign and
return the enclosed Form W-9 and your stock certificate(s) to RVM Industries,
Inc., 753 West Waterloo Road, Akron, Ohio 44314-1519; ATTENTION: Corporate
Secretary. Upon receipt of your Form W-9 and stock certificate(s), the Company
promptly will send you a check in the amount of the merger consideration due you
for the surrendered shares of Common Stock.
SOURCE OF FUNDS; EXPENSES
The aggregate amount of $8,788.25 to be paid to unaffiliated stockholders for
the purchase of 175,765 shares of RVM's common stock will be loaned to JTB by
one or more of its five stockholders. Expenses, detailed below, are estimated
to aggregate $100,000, and will be paid from funds loaned to JTB by one or more
of its five stockholders, extent that legal and accounting fees in
connection with the transaction that are directly related to the preparation of
RVM's periodic reports under the Securities Exchange Act of 1934 will be paid
by RVM. James R. McCourt, a consultant to RVM, has devoted some time to
preparing RVM's Information Statement for its Annual Meeting of Stockholders,
as well as to the preparation of RVM's periodic reports. Although JTB has
benefited indirectly from Mr. McCourt's labors, these labors also directly
benefited RVM and, in large measure, would have been necessary even absent the
existence of the proposed transaction. In addition, there has been an
immaterial use of RVM's assets to the benefit of JTB in connection with the
proposed transaction. There are no material conditions to the funding by JTB.
Filing fees: $ 150.00
Legal fees: $ 35,000.00
Accounting fees $ 60,000.00
Printing fees $ 2,500.00
Miscellaneous $ 2,350.00
Total $100,000.00
EFFECTS OF THE MERGER
The shares of RVM common stock purchased in the merger will be retired. As a
result of the merger, which will occur on or about December 19, 2002, the
separate corporate existence of RVM will cease, the common stock of RVM will be
eligible for termination of registration under Section 12(g)(4) of the
Securities Exchange Act of 1934 and JTB will apply to the Securities and
Exchange Commission for such termination.
DISSENTERS' RIGHTS OF APPRAISAL
Under Section 262 ("Section 262") of the Delaware General Corporation Law (the
"DGCL"), since you will not have the opportunity to vote your shares of RVM
Common Stock with respect to adoption of the merger, you will be entitled to
dissent and elect to receive the "fair value" of your shares, exclusive of any
element of value arising from the accomplishment or expectation of the merger,
together with a fair rate of interest, if any, judicially determined by the
Delaware Court of Chancery and paid to you in cash.
The following discussion is not a complete statement of the law pertaining to
appraisal rights under the DGCL, and this discussion is qualified in its
entirety by the full text of Section 262, a copy of which is provided as
Appendix B to this Information Statement. All references in Section 262 and in
this summary to a "stockholder" are to the record holder of the shares of RVM
Common Stock as to which appraisal rights are asserted. If you have a
beneficial interest in shares of RVM Common Stock held of record in the name of
another person, such as a broker or nominee, you must act promptly to cause the
record holder to follow properly the steps summarized below and in a timely
manner to perfect your appraisal rights.
Under Section 262 and Rule 14c-2 under the Securities Exchange Act of 1934, if a
merger is adopted without a vote of its stockholders, the Company, not less than
20 days prior to the Annual Meeting, must notify each of its stockholders (as of
the Record Date) entitled to appraisal rights that appraisal rights are
available, and the Company must include with the notice a copy of Section 262.
This Information Statement is that notice to you, and a copy of Section 262 is
attached to this Information Statement as Appendix B. If you wish to exercise
your appraisal rights or wish to preserve the right to do so, you should review
carefully Section 262 and seek advice of legal counsel, since failure to comply
fully with the procedures of Section 262 will result in the loss of appraisal
rights.
If you wish to exercise the right to dissent from the merger and demand
appraisal under Section 262, you must satisfy each of the following conditions:
(1) You must deliver to the Company a written demand for appraisal of
your shares of RVM Common Stock FOR RECEIPT NO LATER THAN THE DATE
OF THE ANNUAL MEETING, which demand will be sufficient if it
reasonably informs the Company of your identity and that you intend
to demand the appraisal of your shares.
(2) You must continuously hold your shares from your date of making a
written demand through the effective time of the merger. If you are
the record holder of shares of RVM Common Stock on the date the
written demand for appraisal is made, but thereafter transfer these
shares prior to the effective time of the merger, you will lose any
right to appraisal in respect of the shares.
Only a holder of record of shares of RVM Common Stock issued and outstanding
immediately prior to the effective time of the merger is entitled to assert
appraisal rights for the shares of RVM Common Stock registered in that holder's
name. A demand for appraisal should be executed by or on behalf of the
stockholder of record, fully and correctly, as that stockholder's name appears
on the stock certificate(s), should specify the stockholder's name and mailing
address, the number of shares of RVM Common Stock owned and that the
stockholder intends thereby to demand appraisal of the stockholder's shares of
RVM Common Stock.
If your shares of RVM Common Stock are owned of record in a fiduciary capacity,
such as by a trustee, guardian or custodian, execution of a written demand
should be made in that capacity.
If your shares of RVM Common Stock are owned of record by more than one person
as in a joint tenancy or tenancy in common, the demand should be executed by
or on behalf of all owners. An authorized agent, including one or more joint
owners, may execute a demand for appraisal on behalf of a stockholder; however,
the agent must identify the record owner or owners and expressly disclose the
fact that, in executing the demand, the agent is acting as agent for the owner
or owners.
A record holder such as a broker who holds shares of RVM Common Stock as
nominee for several beneficial owners may exercise appraisal rights with
respect to the shares of RVM Common Stock held for one or more other beneficial
owners while not exercising those rights with respect to the shares of RVM
Common Stock held for one or more beneficial owners; in that case, the written
demand should set forth the number of shares of RVM Common Stock as to which
appraisal is sought, and where no number of shares is expressly mentioned, the
demand will be presumed to cover all shares of RVM Common Stock held in the
name of the record owner. If you hold your shares of RVM Common Stock in
brokerage accounts or other nominee forms and wish to exercise appraisal
rights, you are urged to consult with your broker to determine the appropriate
procedures for the making of a demand for appraisal by the nominee.
A stockholder who elects to exercise appraisal rights under Section 262 should
mail or deliver a written demand to RVM Industries, Inc., 753 West Waterloo
Road, Akron, Ohio 44314-1519; Attention: Corporate Secretary.
Within ten days after the completion of the merger, JTB will send a notice as
to the effectiveness of the merger to each former stockholder who has made a
written demand for appraisal in accordance with Section 262. Within 120 days
after the completion of the merger, but not thereafter, either the Company or
any holder of dissenting shares of RVM Common Stock who has complied with the
requirements of Section 262 may file a petition in the Delaware Court of
Chancery demanding a determination of the value of all shares of RVM Common
Stock held by dissenting stockholders. The Company is under no obligation to
and has no present intent to file a petition for appraisal, and you should not
assume that the Company will file a petition or that the Company will initiate
any negotiations with respect to the fair value of the shares. Accordingly, if
you desire to have your shares appraised, you should initiate any petitions
necessary for the perfection of your appraisal rights within the time periods
and in the manner prescribed in Section 262.
Within 120 days after the effective time of the merger, any stockholder who has
complied with the provisions of Section 262 to that point in time will be
entitled to receive from the Company, upon written request, a statement setting
forth the aggregate number of shares of RVM Common Stock with respect to which
demands for appraisal have been received and the aggregate number of holders of
the shares. The Company must mail this statement to the stockholder within 10
days of receipt of a request.
A stockholder timely filing a petition for appraisal with the Delaware Court of
Chancery must deliver a copy to the Company, which will then be obligated
within 20 days to provide the Delaware Court of Chancery with a duly verified
list containing the names and addresses of all stockholders who have
demanded appraisal of their shares of RVM Common Stock. After notice to the
stockholders, the Delaware
Court of Chancery is empowered to conduct a hearing on the petition to determine
which stockholders are entitled to appraisal rights. The Delaware Court of
Chancery may require stockholders who have demanded an appraisal for their
shares and who hold stock represented by certificates to submit their
certificates to the Register in Chancery for notation thereon of the pendency of
the appraisal proceedings, and if any stockholder fails to comply with the
requirement, the Delaware Court of Chancery may dismiss the proceedings as to
that stockholder.
After determining the stockholders entitled to an appraisal, the Delaware Court
of Chancery will appraise the "fair value" of their shares, exclusive of any
element of value arising from the accomplishment or expectation of the merger,
together with a fair rate of interest, if any, to be paid upon the amount
determined to be the fair value. The costs of the action may be determined by
the Delaware Court of Chancery and taxed upon the parties as the Delaware Court
of Chancery deems equitable. Upon application of a holder of dissenting shares
of Common Stock, the Delaware Court of Chancery may also order that all or a
portion of the expenses incurred by any stockholder in connection with the
appraisal proceeding, including, reasonable attorneys' fees and the fees and
expenses of experts, be charged pro rata against the value of all of the shares
of Common Stock entitled to appraisal.
IF YOU CONSIDER SEEKING APPRAISAL, YOU SHOULD BE AWARE THAT THE FAIR VALUE OF
YOUR SHARES AS DETERMINED UNDER SECTION 262 COULD BE MORE THAN, THE SAME AS OR
LESS THAN THE $0.05 PER SHARE YOU WOULD RECEIVE UNDER THE MERGER AGREEMENT IF
YOU DID NOT SEEK APPRAISAL OF YOUR SHARES. YOU SHOULD ALSO BE AWARE THAT
INVESTMENT BANKING OPINIONS ARE NOT OPINIONS AS TO FAIR VALUE UNDER SECTION 262.
In determining fair value and, if applicable, a fair rate of interest, the
Delaware Court of Chancery is to take into account all relevant factors. In
Weinberger v. UOP, Inc., the Delaware Supreme Court discussed the factors that
could be considered in determining fair value in an appraisal proceeding,
stating that "proof of value by any techniques or methods which are generally
considered acceptable in the financial community and otherwise admissible in
court" should be considered, and that "fair price obviously requires
consideration of all relevant factors involving the value of a company." The
Delaware Supreme Court stated that, in making this determination of fair value,
the court must consider market value, asset value, dividends, earnings
prospects, the nature of the enterprise and any other facts that could be
ascertained as of the date of the merger that throw any light on future
prospects of the merged corporation. In Weinberger, the Delaware Supreme Court
further stated that "elements of future value, including the nature of the
enterprise, which are known or susceptible of proof as of the date of the merger
and not the product of speculation, may be considered." Section 262 provides
that fair value is to be "exclusive of any element of value arising from the
accomplishment or expectation of the merger."
Any stockholder who has duly demanded an appraisal in compliance with Section
262 will not, after the completion of the merger, be entitled to vote the shares
subject to this demand for any purpose or to receive payment of dividends or
other distributions on those shares (except dividends or other distributions
payable to holders of record of shares as of a record date prior to the
completion of the merger).
If any stockholder who demands appraisal of shares of Common Stock under
Section 262 fails to perfect, or effectively withdraws or loses, the right to
appraisal, the stockholder's shares of RVM Common Stock will be converted
into the right to receive $0.05 per share in cash in accordance with the merger
terms, without interest. A stockholder will fail to perfect, or effectively
lose or withdraw, the right to appraisal if no petition for appraisal is filed
within 120 calendar days after the completion of the merger. A stockholder may
withdraw a demand for appraisal by delivering to the Company a written
withdrawal of the demand for appraisal and acceptance of the merger
consideration, except that any such attempt to withdraw made more than 60
calendar days after the completion of the merger will require the written
approval of the Company. Once a petition for appraisal has been filed, the
appraisal proceeding may not be dismissed as to any stockholder, absent
approval of the Delaware Court of Chancery.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material United States federal income tax
consequences of the merger to RVM stockholders. This summary is based upon the
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
applicable current and proposed United States Treasury Regulations, judicial
authority, and administrative rulings and practice. Legislative, judicial or
administrative rules and interpretations are subject to change, possibly on a
retroactive basis, at any time and, therefore, the following statements and
conclusions could be altered or modified. It is assumed that shares of Common
Stock are held as capital assets by a United States person (i.e., a citizen or
resident of the United States or a domestic corporation). This discussion does
not address all aspects of United States federal income taxation that may be
relevant to a particular stockholder in light of that stockholder's personal
investment circumstances, or those stockholders subject to special treatment
under the United States federal income tax laws (for example, life insurance
companies, tax-exempt organizations, financial institutions, United States
expatriates, foreign corporations and nonresident alien individuals),
stockholders who hold shares of Common Stock as part of a hedging, "straddle,"
conversion or other integrated transaction or stockholders, if any, who
acquired their shares of RVM Common Stock through the exercise of employee
stock options or other compensation arrangements. In addition, the discussion
does not address any aspect of foreign, state or local taxation or estate and
gift taxation that may be applicable to a stockholder.
The receipt of the merger consideration in the merger (including any cash
amounts received by stockholders that exercise appraisal rights) may be a
taxable transaction for United States federal income tax purposes (and also may
be a taxable transaction under applicable state, local and other income tax
laws). In general, for United States federal income tax purposes, a holder of
Common Stock will recognize gain or loss equal to the difference between his or
her adjusted tax basis in RVM Common Stock converted in the merger or subject
to appraisal rights, and the amount of cash received. Gain or loss will be
calculated separately for each block of shares converted in the merger (i.e.,
shares acquired at the same cost in a single transaction). The gain or loss
will be capital gain or loss (other than, with respect to the exercise of
appraisal rights, amounts, if any, which are or are deemed to be interest for
federal income tax purposes, which amounts will be taxed as ordinary income),
and will be short-term gain or loss if, at the effective time of the merger,
the shares of RVM Common Stock so converted were held for one year or less. If
the shares were held for more than one year, the gain or loss would be
long-term, subject (in the case of stockholders who are individuals) to tax at
a maximum United States federal income tax rate of 20%.
Under the United States federal income tax backup withholding rules, unless an
exemption applies, RVM is required to and will withhold 31% of all payments to
which a stockholder or other payee is entitled in the merger, unless the
stockholder or other payee provides a tax identification number (social security
number, in the case of an individual, or employer identification number, in the
case of other stockholders), and certifies under penalties of perjury that this
number is correct. Each stockholder and, if applicable, each other payee, should
complete and sign the substitute Form W-9 included with this Information
Statement and return the Form W-9 to the Company in order to provide the
information and certification necessary to avoid backup withholding, unless an
applicable exemption exists and is otherwise proved in a manner satisfactory to
the Company. The exemptions provide that certain stockholders (including, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements.
In order for a foreign individual to qualify as an exempt recipient, however, he
or she must submit a signed statement (such as a Certificate of Foreign Status
on Form W-8) attesting to his or her exempt status. Any amounts withheld will be
allowed as a credit against the holder's United States federal income tax
liability for that year.
THIS SECTION DOES NOT DISCUSS ALL ASPECTS OF UNITED STATES FEDERAL INCOME
TAXATION THAT MAY BE RELEVANT TO A PARTICULAR STOCKHOLDER IN LIGHT OF THE
STOCKHOLDER'S PARTICULAR CIRCUMSTANCES AND INCOME TAX SITUATION. EACH
STOCKHOLDER SHOULD CONSULT A TAX ADVISOR TO DETERMINE THE UNITED STATES
FEDERAL, STATE AND LOCAL AND FOREIGN TAX CONSEQUENCES OF THE MERGER TO THAT
STOCKHOLDER IN VIEW OF THE STOCKHOLDER'S OWN PARTICULAR CIRCUMSTANCES.
INTEREST OF CERTAIN PERSONS IN THE MERGER
Jacob Pollock, Chairman and Chief Executive Officer of RVM, and Richard D.
Pollock, a director and President of RVM are stockholders of JTB. Other members
of the Pollock families also are stockholders of JTB. Although no stockholder of
JTB will receive merger consideration, JTB, following the merger will own all
the assets of RVM, including unused tax losses in the aggregate amount of
$2,864,792. The tax losses may be carried forward and used by JTB to offset
income that it might earn in the future. Any use of these tax losses will inure
to the benefit of JTB and its stockholders and not to any stockholder of RVM
whose shares are cashed out in the merger. Jacob Pollock and Richard D. Pollock
may be deemed to have a conflict of interest in the transfer of their RVM Common
Stock to JTB and the resulting merger.
ADDITIONAL INFORMATION AND QUESTIONS
The Company's integrated 2002 Annual Report to Stockholders and Form 10-K is
being delivered to stockholders with this Information Statement. RVM files
periodic reports and other information with the SEC. You may read and copy this
information at the SEC's public reference facilities. Please call the SEC at
1-800-SEC-0330 for information about these facilities. This information is
also available at the Internet site maintained by the SEC at
http://www.sec.gov.
If you have questions about the merger after reading this Information Statement,
please contact James R. McCourt, at 330.753.4545.
INDEPENDENT PUBLIC ACCOUNTANTS
No independent public accountants have yet been selected or recommended to the
stockholders because the Company desires to maintain flexibility regarding the
choice of auditors. Under the Company's by-laws and Certificate of
Incorporation, the authority to select the Company's independent public
accountants is reserved to the Board of Directors. Ernst & Young LLP served as
the Company's independent public accountants for the fiscal years ended March
31, 2000, 2001 and 2002. On December 20, 2001, Ernst & Young LLP resigned, and
on July 9, 2002 the Company selected SS&G Financial Services, Inc. as the
independent accountants to audit the Company's financial statements. A
representative of SS&G Financial Services, Inc. is not expected to be present at
the Annual Meeting. The Company filed its annual report on Form 10-K for the
fiscal year ended March 31, 2002 with unaudited financial statements. The
Company's financial statements for that fiscal year now have been audited by
SS&G Financial Services, Inc. and are included in the Company's amended Form
10-K for that fiscal year, as filed with the Securities and Exchange Commission
on November 14, 2002.
STOCKHOLDER PROPOSALS
In the event that the merger is abandoned, all proposals intended to be
presented by a stockholder at the 2003 Annual Meeting of the Company's
Stockholders must be received by the Company no later than July 16, 2003 at the
Company's offices addressed to 753 W. Waterloo Road, Akron, Ohio 44314-1519, for
inclusion in the Company's proxy material or Information Statement for the 2001
Annual Meeting of Stockholders.
By Order of the Board of Directors,
Jacob Pollock
Secretary
November 15, 2002
APPENDIX A
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
RVM INDUSTRIES, INC.
INTO
JTB ENTERPRISES, INC.
(Pursuant to Section 253 of the General Company Law of Delaware)
JTB Enterprises, Inc., a corporation organized and existing under the laws of
Delaware (the "Company"), does hereby certify:
1. That the Company owns 1,761,740 shares of the common stock of RVM
industries, Inc., a Delaware company ("RVM Industries"), or more than
ninety percent (90%) of the outstanding shares of each class of the
capital stock of RVM Industries. The Certificate of Incorporation of RVM
Industries authorizes the issuance of preferred stock, but no shares are
outstanding, and no shares of any other class of stock of RVM Industries,
other than its common stock, are outstanding.
2. That the Board of Directors of the Company, by written action dated
November 13, 2002, determined to merge RVM Industries into the Company and
in furtherance thereof adopted the following resolutions:
RESOLVED, that, upon written consent of stockholders of the Company
holding at least a majority of the outstanding shares of the Company's
common stock, JBT Enterprises, Inc. shall merge into itself RVM
industries, Inc. and shall assume all the obligations of said RVM
Industries, Inc.
RESOLVED, that the terms of the merger shall be as follows:
1. In accordance with Section 253 of the Delaware General Corporation
Law, JBT Enterprises, Inc. shall be merged with RVM Industries,
Inc., the separate corporate existence of RVM Industries shall cease
and the Company shall continue as the surviving corporation and
shall change its name to "RVM Industries, Inc."
2. The merger shall become effective upon the filing with the Secretary
of State of the State of Delaware of a Certificate of Ownership and
Merger, or at such later date and time as shall be specified therein
(the "Effective Time").
3. From and after Effective Time, until thereafter amended, the
certificate of incorporation of the Company, as in effect
immediately prior to the Effective Time, will be the certificate of
incorporation of the surviving corporation.
4. The Company owns 1,761,740 shares of the common stock of RVM
Industries ("RVM Common Stock"), or more than 90.928% of the
1,937,505 shares of RVM Common Stock outstanding. RVM Industries has
no other class of outstanding capital stock.
5. Upon surrender thereof to the Company, each of the 175,765 shares of
RVM Common Stock that are outstanding and not owned by the Company
on the Effective Date will be purchased by the Company at a price of
$0.05 per share. The price of $0.05 per share has been determined by
the
Company's Board of Directors to be the fair market value; $0.05 per
share is the most recent bid price per share of RVM Common Stock and
the highest bid price per share of such stock since March 12, 2002.
RESOLVED, that said merger shall become effective upon the filing of a
Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware or at such later time as set forth therein.
RESOLVED, that upon effectiveness of said merger, the name of the Company
shall be changed to RVM Industries, Inc. and Article First of the
Certificate of Incorporation of the Company shall be amended in its
entirety to read as follows:
FIRST: The name of this corporation is RVM Industries, Inc.
RESOLVED, that the officers of the Company hereby are, and each of them
hereby is, authorized, for and on behalf of the Company, to take each and
every action necessary or appropriate, whether within or without the State
of Delaware, to carry out the foregoing resolutions.
AND FURTHER RESOLVED, that any and all actions heretofore taken by the
officers of the Company, or any of them, with respect to, and in
contemplation of, the actions authorized by any of the foregoing
resolutions, hereby are authorized, approved, ratified and confirmed and
such officers hereby are, and each of them hereby is, authorized and
directed, for and on behalf of the Company, to make and execute a
Certificate of Ownership and Merger setting forth a copy of these
resolutions to merge RVM Industries, Inc. and the terms thereof and to
cause the same to be filed with the Secretary of State of the State of
Delaware.
3. That by written action dated November 13, 2002, stockholders of the
Company holding at least a majority of the outstanding shares of the
Company's common stock adopted resolutions approving the merger as
contemplated in the resolutions of the Company's Board of Directors.
4. This Certificate shall be effective at 12:01 a.m., E.S.T., on December 19,
2002.
In Witness Whereof, JTB Enterprises, Inc. has caused this certificate to be
signed by its duly authorized officer, this 16th day of December 2002.
JTB ENTERPRISES, INC.
By:
---------------------------
Jacob Pollock
President and Secretary
APPENDIX B
SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW
APPRAISAL RIGHTS
Section 262 Appraisal Rights -- (a) Any stockholder of a corporation of this
State who holds shares of stock on the date of the making of a demand pursuant
to subsection (d) of this section with respect to such shares, who continuously
holds such shares through the effective date of the merger or consolidation, who
has otherwise complied with subsection (d) of this section and who has neither
voted in favor of the merger or consolidation nor consented thereto in writing
pursuant to Section 228 of this title shall be entitled to an appraisal by the
Court of Chancery of the fair value of the stockholder's shares of stock under
the circumstances described in subsections (b) and (c) of this section. As used
in this section, the word "stockholder" means a holder of record of stock in a
stock corporation and also a member of record of a nonstock corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a nonstock
corporation; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or series of
stock of a constituent corporation in a merger or consolidation to be effected
pursuant to Section 251 (other than a merger effected pursuant to Section 251(g)
of this title), Section 252, Section 254, Section 257, Section 258, Section 263
or Section 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall be
available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of and to vote at the meeting of
stockholders to act upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000 holders;
and further provided that no appraisal rights shall be available for any shares
of stock of the constituent corporation surviving a merger if the merger did not
require for its approval the vote of the stockholders of the surviving
corporation as provided in subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights under
this section shall be available for the shares of any class or series of stock
of a constituent corporation if the holders thereof are required by the terms of
an agreement of merger or consolidation pursuant to Sections 251, 252, 254, 257,
258, 263 and 264 of this title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or resulting from such merger or
consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in respect
thereof, which shares of stock (or depository receipts in respect thereof) or
depository receipts at the effective date of the merger or consolidation will be
either listed on a national securities exchange or designated as a national
market system security on an interdealer quotation system by the National
Association of Securities Dealers, Inc. or held of record by more than 2,000
holders;
c. Cash in lieu of fractional shares or fractional depository receipts described
in the foregoing subparagraphs a. and b. of this paragraph; or
d. Any combination of the shares of stock, depository receipts and cash in lieu
of fractional shares or fractional depository receipts described in the
foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation party to
a merger effected pursuant to Section 253 Of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall be
available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting, shall
notify each of its stockholders who was such on the record date for such meeting
with respect to shares for which appraisal rights are available pursuant to
subsection (b) or (c) hereof that appraisal rights are available for any or all
of the shares of the constituent corporations, and shall include in such notice
a copy of this section. Each stockholder electing to demand the appraisal of
such stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of such
stockholder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such stockholder's shares. A proxy or
vote against the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written demand
as herein provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become effective;
or
(2) If the merger or consolidation was approved pursuant to Section 228 or
Section 253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days thereafter,
shall notify each of the holders of any class or series of stock of such
constituent corporation who are entitled to appraisal rights of the approval of
the merger or consolidation and that appraisal rights are available for any or
all shares of such class or series of stock of such constituent corporation, and
shall include in such notice a copy of this section; provided that, if the
notice is given on or after the effective date of the merger or consolidation,
such notice shall be given by the surviving or resulting corporation to all such
holders of any class or series of stock of a constituent corporation that are
entitled to appraisal rights. Such notice may, and, if given on or after the
effective date of the merger or consolidation, shall, also notify such
stockholders of the effective date of the merger or consolidation. Any
stockholder entitled to appraisal rights may, within 20 days after the date of
mailing of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the appraisal of
such holder's shares. If such notice did not notify stockholders of the
effective date of the merger or consolidation, either (i) each such constituent
corporation shall send a second notice before the effective date of the merger
or consolidation notifying each of the holders of any class or series of stock
of such constituent corporation that are entitled to appraisal rights of the
effective date of the merger or consolidation or (ii) the surviving or resulting
corporation shall send such a second notice to all such holders on or within 10
days after such effective date; provided, however, that if such second notice is
sent more than 20 days following the sending of the first notice, such second
notice need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary or of the
transfer agent of the corporation that is required to give
either notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of determining
the stockholders entitled to receive either notice, each constituent corporation
may fix, in advance, a record date that shall be not more than 10 days prior to
the date the notice is given, provided, that if the notice is given on or after
the effective date of the merger or consolidation, the record date shall be such
effective date. If no record date is fixed and the notice is given prior to the
effective date, the record date shall be the close of business on the day next
preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation, the
surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw such
stockholder's demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for
appraisal have been received and the aggregate number of holders of such shares.
Such written statement shall be mailed to the stockholder within 10 days after
such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery
in which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreements as to the value of their shares have not been reached by
the surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by 1 or more publications at least 1 week before the day of
the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the stockholders
who have complied with this section and who have become entitled to appraisal
rights. The Court may require the stockholders who have demanded an appraisal
for their shares and who hold stock represented by certificates to submit their
certificates of stock to the Register in Chancery for notation thereon of the
pendency of the appraisal proceedings; and if any stockholder fails to comply
with such direction, the Court may dismiss the proceedings as to such
stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court shall
appraise the shares, determining their fair value exclusive of any element of
value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its
discretion, permit discovery or other pretrial proceedings and may proceed to
trial upon the appraisal prior to the final determination of the stockholder
entitled to an appraisal. Any stockholder whose name appears on the list filed
by the surviving or resulting corporation pursuant to subsection (f) of this
section and who has submitted such stockholder's certificates of stock to the
Register in Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that such stockholder is not entitled
to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares, together
with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed upon
the parties as the Court deems equitable in the circumstances. Upon application
of a stockholder, the Court may order all or a portion of the expenses incurred
by any stockholder in connection with the appraisal proceeding, including,
without limitation, reasonable attorney's fees and the fees and expenses of
experts, to be charged pro rata against the value of all the shares entitled to
an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the shares of
such objecting stockholders would have been converted had they assented to the
merger or consolidation shall have the status of authorized and unissued shares
of the surviving or resulting corporation.