Tender-Offer Statement — Third-Party Tender Offer — Schedule 14D-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D1 Tender-Offer Statement -- Third-Party Tender Offer 8 37K
10: EX-99.(C)(1) Miscellaneous Exhibit 42 160K
11: EX-99.(C)(2) Miscellaneous Exhibit 10 33K
2: EX-99.1(A) Miscellaneous Exhibit 40 202K
3: EX-99.2(A) Miscellaneous Exhibit 12 56K
4: EX-99.3(A) Miscellaneous Exhibit 2 15K
5: EX-99.4(A) Miscellaneous Exhibit 2 14K
6: EX-99.5(A) Miscellaneous Exhibit 3 14K
7: EX-99.6(A) Miscellaneous Exhibit 5± 17K
8: EX-99.7(A) Miscellaneous Exhibit 2 11K
9: EX-99.A(8) Miscellaneous Exhibit 4 20K
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AUDITS & SURVEYS WORLDWIDE, INC.
AT
$3.24 PER SHARE, NET
BY
UNITED INFORMATION ACQUISITION CORP.
A WHOLLY-OWNED SUBSIDIARY
OF
UNITED INFORMATION GROUP, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, FEBRUARY 23, 1999, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST A
MAJORITY OF THE OUTSTANDING SHARES OF COMMON STOCK OF AUDITS & SURVEYS
WORLDWIDE, INC. (THE "COMPANY") ON A FULLY DILUTED BASIS AND (II) THE EXPIRATION
OR TERMINATION OF ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED. THE OFFER IS ALSO SUBJECT TO
OTHER TERMS AND CONDITIONS WHICH ARE CONTAINED IN THIS OFFER TO PURCHASE. SEE
SECTION 14.
THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY HAS DETERMINED THAT EACH
OF THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER
AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
IMPORTANT
Any stockholder desiring to tender all or any portion of such
stockholder's shares of common stock, par value $.01 per share (the "Shares"),
of the Company, should either (1) complete and sign the Letter of Transmittal,
or a facsimile copy thereof, in accordance with the instructions in the Letter
of Transmittal and mail or deliver it together with the certificate(s)
evidencing tendered Shares (the "Share Certificates"), and any other required
documents, to the Depositary named on the back cover of this Offer to Purchase
or tender such Shares pursuant to the procedure for book-entry transfer set
forth in Section 3, or (2) request such stockholder's broker, dealer, commercial
bank, trust company or other nominee to effect the transaction for such
stockholder. Any stockholder whose Shares are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee must contact
such broker, dealer, commercial bank, trust company or other nominee if such
stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose Share Certificates
are not immediately available, or who cannot comply with the procedures for
book-entry transfer described in this Offer to Purchase on a timely basis, may
tender such Shares by following the procedure for guaranteed delivery set forth
in Section 3.
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number set forth on the back cover of this
Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of
Transmittal and the Notice of Guaranteed Delivery may also be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
--------------------------
January 26, 1999
TABLE OF CONTENTS
[Enlarge/Download Table]
PAGE
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INTRODUCTION............................................................................................. 1
SECTION 1. Terms of Offer; Expiration Date....................................................... 3
SECTION 2. Acceptance for Payment and Payment for Shares......................................... 4
SECTION 3. Procedure for Accepting the Offer and Tendering Shares................................ 5
SECTION 4. Withdrawal Rights..................................................................... 8
SECTION 5. Certain Federal Income Tax Consequences............................................... 9
SECTION 6. Price Range of the Shares............................................................. 10
SECTION 7. Certain Information Concerning the Company............................................ 10
SECTION 8. Certain Information Concerning Purchaser and Parent................................... 12
SECTION 9. Financing of the Offer and the Merger................................................. 14
SECTION 10. Background of the Offer; Contacts with the Company; Merger Agreement; Inducement
Agreement; Employment Amendments...................................................... 14
SECTION 11. Purpose of the Offer; Plans for the Surviving Corporation after the Offer and the
Merger................................................................................ 24
SECTION 12. Dividends and Distributions........................................................... 26
SECTION 13. Effect of the Offer on Market for Shares; American Stock Exchange Listing;
Registration under the Exchange Act................................................... 26
SECTION 14. Certain Conditions of the Offer....................................................... 26
SECTION 15. Certain Legal Matters and Regulatory Approvals........................................ 28
SECTION 16. Fees and Expenses..................................................................... 31
SECTION 17. Miscellaneous......................................................................... 31
SCHEDULE I. Directors and Executive Officers of Parent, Purchaser and United...................... 32
i
TO THE HOLDERS OF COMMON STOCK OF
AUDITS & SURVEYS WORLDWIDE, INC.
INTRODUCTION
United Information Acquisition Corp., a Delaware corporation (the
"Purchaser") and wholly-owned subsidiary of United Information Group, Inc., a
Delaware corporation ("Parent"), hereby offers to purchase all outstanding
shares of common stock, par value $.01 per share (the shares subject to the
Offer being hereinafter called the "Shares"), of Audits & Surveys Worldwide,
Inc., a Delaware corporation (the "Company"), at a price of $3.24 per share, net
to the seller in cash, upon the terms and subject to the conditions set forth in
this Offer to Purchase and in the related Letter of Transmittal (which together
constitute the "Offer").
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by Purchaser
pursuant to the Offer. Purchaser will pay all charges and expenses of United
States Trust Company of New York (the "Depositary") and D.F. King & Co., Inc.
(the "Information Agent") incurred in connection with the Offer.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD") UNANIMOUSLY HAS
DETERMINED THAT EACH OF THE OFFER AND THE MERGER (AS DEFINED BELOW) IS FAIR TO,
AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS
THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE
OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST A
MAJORITY OF THE OUTSTANDING SHARES OF THE COMPANY ON A FULLY DILUTED BASIS (THE
"MINIMUM CONDITION"), AND (II) THE EXPIRATION OR TERMINATION OF ALL APPLICABLE
WAITING PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976,
AS AMENDED (THE "HSR ACT"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND
CONDITIONS WHICH ARE CONTAINED IN THIS OFFER TO PURCHASE. SEE SECTION 14.
The Offer is being made pursuant to an Agreement and Plan of Merger dated as
of January 19, 1999 (the "Merger Agreement") by and among Purchaser, the Company
and United News & Media Group Limited. The Merger Agreement provides, among
other things, for the making of the Offer by Purchaser and further provides
that, following the purchase of Shares pursuant to the Offer and promptly after
the satisfaction or waiver of certain other conditions and in accordance with
the relevant provisions of the General Corporation Law of the State of Delaware
(the "DGCL"), Purchaser will be merged with and into the Company and the
separate corporate existence of Purchaser will cease (the "Merger"). (The
Company, as the entity which will survive the Merger, is sometimes referred to
herein as the "Surviving Corporation.") The Surviving Corporation will be a
wholly-owned subsidiary of Parent. At the time of the Merger (the "Effective
Time"), each Share issued and outstanding immediately prior to the Effective
Time (other than Shares owned by Purchaser, Parent or any affiliate of Parent or
owned by the Company or any direct or indirect wholly-owned subsidiary of the
Company or held by stockholders who shall have demanded and perfected appraisal
rights, if any, under the DGCL) will be canceled and converted automatically
into the right to receive $3.24 in cash, or any higher price that may be paid
per share in the Offer, without interest (the "Merger Consideration"). See
Section 10 for a more detailed description of the Merger Agreement.
Purchaser has entered into an agreement with certain stockholders of the
Company (the "Inducement Agreement"), pursuant to which, among other things,
each such stockholder has (i) granted Purchaser an irrevocable proxy to vote and
otherwise act with respect to the Shares then owned by such stockholder in favor
of the approval and adoption of the Merger Agreement, the Merger and all the
transactions
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contemplated by the Merger Agreement and the Inducement Agreement and any other
actions required in furtherance thereof, and against certain transactions with
competing third-party bidders and any action in furtherance thereof, (ii)
granted Purchaser an irrevocable option to purchase such stockholder's Shares at
a price of $3.24 per Share, under certain circumstances (see Section 10) and
(iii) agreed to tender such stockholder's Shares in the Offer.
The Merger Agreement provides that, promptly upon the acceptance for payment
of, and payment for, all of the Shares subject to the Inducement Agreement or
any Shares pursuant to the Offer, Purchaser shall from time to time be entitled
to designate such number of Directors (rounded up to the next whole number) on
the Board as will give Purchaser that percentage of the total number of
Directors on the Board equal to the percentage of the then outstanding Shares
owned by Purchaser, subject to compliance with Section 14(f) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), provided that such
percentage of the total Directors shall not be less than a majority of the
Board. In the Merger Agreement, the Company has agreed to take all actions
necessary to cause Purchaser's designees to be elected as members of the Board,
including increasing the size of the Board or securing the resignations of
incumbent directors or both. See Section 10.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including the approval and adoption of the Merger Agreement
by the requisite vote of the stockholders of the Company. See Section 11. Under
the Company's Certificate of Incorporation and the DGCL, the affirmative vote of
the holders of a majority of the outstanding Shares is required to approve and
adopt the Merger Agreement and the Merger. Consequently, if Purchaser acquires
(pursuant to the Offer or otherwise) at least a majority of the outstanding
Shares, Purchaser will have sufficient voting power to approve and adopt the
Merger Agreement and the Merger without the vote of any other stockholder.
The DGCL generally permits a merger of a subsidiary with a parent
corporation which owns at least 90% of the outstanding shares of each class of
the stock of the subsidiary, without a vote of the stockholders of the
subsidiary and Purchaser reserves the right, subject to certain conditions
described below, to extend the Offer for up to 10 business days if less than 90%
of the outstanding Shares have been tendered. However, the Certificate of
Incorporation of the Company includes a provision, Article Eleventh, which
effectively will require a meeting of the Company's shareholders to approve the
Merger whether or not Purchaser acquires 90% of the outstanding Shares.
The Company has advised Purchaser that as of January 19, 1999, 13,116,136
Shares were issued and outstanding. The Company has advised Purchaser that as of
January 19, 1999, the Company had duly reserved a total of 819,219 Shares for
future issuance pursuant to outstanding employee stock options granted pursuant
to the Company's 1994 Stock Option Plan and 1997 Stock Option Plan
(collectively, the "Company Stock Option Plans"), of which 665,887 entitled the
holders thereof to payment under the terms of the Merger Agreement. See Section
10 for a description of the treatment of options under the Company Stock Option
Plans.
The Company has been advised by each of its directors and officers that they
intend to tender all Shares beneficially owned by them pursuant to the Offer.
Such persons hold in the aggregate approximately 58.0% of the issued and
outstanding Shares and approximately 57.1% of the Shares on a fully diluted
basis, including in each case Shares held by family members and other
affiliates, as set forth in the Information Statement attached as Annex I to the
Schedule 14D-9 of the Company of even date herewith.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ IN ITS ENTIRETY BEFORE ANY DECISION
IS MADE WITH RESPECT TO THE OFFER.
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SECTION 1. TERMS OF OFFER; EXPIRATION DATE.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and will pay for all Shares duly
tendered on or prior to the Expiration Date (as hereinafter defined) and not
properly withdrawn in accordance with the provisions set forth in Section 4. The
term "Expiration Date" shall mean 12:00 Midnight, New York City time, on
February 23, 1999, unless and until Purchaser, in its sole discretion (but
subject to the terms and conditions of the Merger Agreement), shall have
extended the period of time during which the Offer is open, in which event the
term "Expiration Date" shall mean the latest time and date at which the Offer,
as so extended by Purchaser, shall expire.
Purchaser expressly reserves the right, in its sole discretion (but subject
to the terms and conditions of the Merger Agreement), at any time or from time
to time, to extend for any reason the period of time during which the Offer is
open, including the occurrence of any of the conditions set forth in Section 14,
by giving oral or written notice of such extension to the Depositary and by
providing notice thereof, if applicable, as required by rules promulgated by the
Securities and Exchange Commission (the "SEC"). During any such extension, all
Shares previously tendered and not properly withdrawn will remain subject to the
Offer, subject to the right of a tendering stockholder to withdraw such
stockholder's Shares. See Section 4.
Purchaser expressly reserves the right, at any time and from time to time,
if any of the conditions to the Offer are not satisfied, to (i) terminate the
Offer, (ii) postpone acceptance of, and payment for, any Shares or (iii) waive
any condition or otherwise amend the Offer in any respect, by giving notice
thereof to the Depositary (and such other persons as required by the SEC),
subject in each case to the applicable rules and regulations of the SEC and the
terms and conditions of the Merger Agreement. The Merger Agreement states that,
without the prior written consent of the Company, Purchaser shall not (i)
decrease the price per Share payable in the Offer or change the form of
consideration payable in the Offer, (ii) decrease the number of Shares sought,
(iii) amend or waive satisfaction of the Minimum Condition or (iv) impose
additional conditions to the Offer or amend any other term of the Offer in any
manner adverse to the holders of Shares; except that Purchaser may, without the
consent of the Company, extend the Offer (a) beyond its scheduled expiration
date if, at such scheduled expiration date, any of the conditions to Purchaser's
obligation to accept for payment, and to pay for, the Shares, shall not be
satisfied or waived, (b) for any period required by any rule, regulation or
interpretation of the SEC or the staff thereof applicable to the Offer, or (c)
for an aggregate period of not more than 10 business days beyond the latest
applicable date that would otherwise be permitted under clause (a) or (b) of
this sentence, if the number of Shares validly tendered and not withdrawn
pursuant to the Offer is less than 90 percent of the outstanding Shares and as
of such date Purchaser expressly waives any condition (other than the Minimum
Condition) that subsequently may not be satisfied during such extension of the
Offer.
If Purchaser extends the Offer, or, subject to the provision of Rule
14e-1(c) under Exchange Act, if Purchaser (whether before or after its
acceptance for payment of Shares) is delayed in its payment for Shares or is
unable to pay for the Shares pursuant to the Offer for any reason, then, without
prejudice to Purchaser's rights under the Offer, the Depositary may
nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares
may not be withdrawn except to the extent tendering stockholders are entitled to
withdrawal rights. See Section 4.
Any extension, delay in payment, amendment or termination of the Offer will
be followed as promptly as practicable by a public announcement in accordance
with the public announcement requirements of Rule 14e-1(d) under the Exchange
Act. Subject to applicable law (including Rules 14d-4(c) and 14d-6(d) under the
Exchange Act, which require that any material change in the information
published, sent or given to stockholders in connection with the Offer be
promptly disseminated to stockholders in a manner reasonably designed to inform
stockholders of such change) and without limiting the manner in which Purchaser
may choose to make any public announcement, Purchaser shall have no obligation
to
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publish, advertise or otherwise communicate any such public announcement other
than by making a release to the Dow Jones News Service.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
Purchaser will extend the Offer to the extent required by Rules 14d-4(c),
14d-6(d) and 14e-1 under the Exchange Act.
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to holders
of Shares. This Offer to Purchase and the related Letter of Transmittal will be
mailed to record holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the stockholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares.
SECTION 2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the purchase of and payment for Shares validly tendered on or prior
to the Expiration Date and not properly withdrawn as permitted by Section 4 will
be made as promptly as reasonably practicable after the latest to occur of (i)
the Expiration Date, (ii) the expiration or termination of any applicable
waiting period under the HSR Act and (iii) the satisfaction or waiver of the
conditions to the Offer set forth in Section 14. Any determination concerning
the satisfaction of the terms and conditions of the Offer shall be within the
sole discretion of Purchaser and such determination shall be final and binding
on all tendering stockholders. In addition, Purchaser reserves the right, in its
sole discretion, subject to applicable rules promulgated by the SEC, (A) to
accelerate the acceptance for payment of, and the payment for, Shares consistent
with any applicable withdrawal rights and (B) to delay acceptance for payment
of, or payment for, Shares pending receipt of any regulatory approvals specified
in Section 15 or in order to comply, in whole or in part, with any other
applicable law.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of (i) the
Share Certificates or timely confirmation (a "Book-Entry Confirmation") of a
book-entry transfer of such Shares into the Depositary's account at the
Depository Trust Company (the "Book-Entry Transfer Facility"), pursuant to the
procedures set forth in Section 3, (ii) a properly completed and duly executed
Form of Acceptance and Letter of Transmittal (or a facsimile thereof), with any
required signature guarantees or an Agent's Message (as defined in Section 3) in
connection with a book-entry transfer, and (iii) any other documents required by
the Letter of Transmittal.
United News & Media public limited company ("United"), as the ultimate
parent entity of Purchaser, expects to file by January 29, 1999 with the Federal
Trade Commission (the "FTC") and the Antitrust Division of the Department of
Justice (the "Antitrust Division") a Premerger Notification and Report Form
under the HSR Act with respect to the Offer. Accordingly, it is anticipated that
the waiting period with respect to the Offer under the HSR Act will expire at
11:59 P.M., New York City time, by not later than February 13, 1999. Prior to
such time the FTC or the Antitrust Division may extend such waiting period by
requesting additional information or material from Parent. If such request is
made, the waiting period will expire at 11:59 P.M., New York City time, on the
tenth calendar day after substantial compliance by Purchaser with such a
request. Thereafter, the waiting period may only be extended by court order. Any
waiting period under the HSR Act may be terminated in individual cases by the
FTC and the Antitrust Division prior to its expiration. See Section 15.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment and purchased Shares validly tendered and not properly withdrawn if and
when Purchaser gives oral or written notice to the Depositary of its acceptance
of payment for such Shares pursuant to the Offer. In all cases, upon the terms
and subject to the conditions of the Offer, payment for Shares so accepted for
payment will be made
4
by the deposit of the purchase price thereafter with the Depositary, which will
act as agent for the tendering stockholders for the purpose of receiving payment
from Purchaser and transmitting payment to validly tendering stockholders whose
Shares have been accepted for payment. UNDER NO CIRCUMSTANCES WILL INTEREST ON
THE PURCHASE PRICE FOR SHARES TENDERED PURSUANT TO THE OFFER BE PAID BY
PURCHASER REGARDLESS OF ANY EXTENSION OR DELAY IN MAKING SUCH PAYMENT.
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer or if Share Certificates are submitted evidencing
more Shares than are tendered, Share Certificates for such unpurchased or
untendered Shares will be returned (or, in the case of Shares tendered by book-
entry transfer within the Book-Entry Transfer Facility, such Shares will be
credited to an account maintained within the Book-Entry Transfer Facility),
without expense to the tendering stockholder, as promptly as practicable
following the expiration or termination of the Offer. Return of such Share
Certificates will be made to and at the risk of the tendering stockholder. Upon
the deposit of funds with the Depositary for the purpose of making payments to
tendering stockholders, Purchaser's obligation to make such payments shall be
satisfied and tendering stockholders must thereafter look solely to the
Depositary for payment of amounts owed to them by reason of the acceptance for
payment of Shares pursuant to the Offer.
If Purchaser is delayed in its acceptance for payment of, or payment for
tendered Shares, or is unable to accept for payment or pay for such Shares
pursuant to the Offer for any reason, then, without prejudice to Purchaser's
rights under the Offer (but subject to Purchaser's obligations under Rule
14e-1(c) under the Exchange Act to pay for or return the tendered Shares
promptly after the termination or withdrawal of the Offer), the Depositary may,
nevertheless, retain tendered Shares on behalf of Purchaser, and such Shares may
not be withdrawn except to the extent tendering stockholders are entitled to
exercise, and duly exercise, withdrawal rights in accordance with the provisions
set forth in Section 4.
If, prior to the Expiration Date, Purchaser varies the terms of the Offer by
increasing the consideration to be paid for Shares, Purchaser will pay such
increased consideration for all Shares purchased pursuant to the Offer, whether
or not such Shares have been tendered or purchased prior to such variation in
the terms of the Offer.
Purchaser reserves the right to transfer or assign, in whole or from time to
time in part, to one or more of its subsidiaries or to other affiliates of
Parent the right to purchase all or any portion of the Shares tendered pursuant
to the Offer, but any such transfer or assignment will not relieve Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
SECTION 3. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES.
VALID TENDER OF SHARES. For a stockholder validly to tender Shares pursuant
to the Offer, a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), with any required signature guarantees (or an Agent's
Message in connection with a book-entry transfer of Shares) and any other
required documents, must be transmitted to and received by the Depositary at its
address set forth on the back cover of this Offer to Purchase and either (i)
Share Certificates for tendered Shares must be received by the Depositary at
such address or such Shares must be tendered pursuant to the procedures for
book-entry transfer set forth below (and a confirmation of receipt of such
tender received by the Depositary), in each case, prior to the Expiration Date,
or (ii) the tendering stockholder must comply with the guaranteed delivery
procedure described below.
BOOK-ENTRY TRANSFERS. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in the Book-Entry Transfer Facility may make
book-entry delivery of the Shares by causing the Book-Entry Transfer Facility to
transfer such Shares into
5
the Depositary's account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer. However, although delivery of Shares may be
effected through book-entry transfer at the Book-Entry Transfer Facility, the
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, and any other required documents, must,
in any case, be received by the Depositary at its address set forth on the back
cover of this Offer to Purchase on or prior to the Expiration Date, or the
tendering stockholder must comply with the guaranteed delivery procedure
described below. The confirmation of a book-entry transfer of Shares into the
Depositary's account at the Book-Entry Transfer Facility as described above is
referred to herein as a "Book-Entry Confirmation." DELIVERY OF DOCUMENTS TO THE
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH ITS BOOK-ENTRY PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of the
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the Shares that such participant has received the
Letter of Transmittal and agrees to be bound by the terms of the Letter of
Transmittal and that Purchaser may enforce such agreement against such
participant.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND SOLE RISK OF THE TENDERING STOCKHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
SIGNATURE GUARANTEES. No signature guarantee on the Letter of Transmittal
is required if (a) the Letter of Transmittal is signed by the registered holder
of Shares (which term, for purposes of this Section, includes any participant in
the Book-Entry Transfer Facility system whose name appears on a security
position listing as the owner of the Shares) tendered therewith and such
registered holder has not completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on such Letter
of Transmittal or (b) such Shares are tendered for the account of a bank,
broker, dealer, credit union, savings association or other entity that is a
member in good standing of the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program (each, an "Eligible Institution"). In all other
cases, all signatures on the Letter of Transmittal must be guaranteed by an
Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal. If
the Share Certificates are registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made to, or Share
Certificates not validly tendered or not accepted for payment are to be issued
or returned to, a person other than the registered holder of the Share
Certificates, the tendered Share Certificates must be endorsed in blank or
accompanied by appropriate stock powers, signed exactly as the name of the
registered holder appears on the Share Certificates with the signature on such
Share Certificates or stock powers guaranteed by an Eligible Institution. See
Instructions 1 and 5 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share Certificates are not immediately
available or time will not permit all required documents to reach the Depositary
on or prior to the Expiration Date, or the procedures for book-entry transfer
cannot be completed on a timely basis, such Shares may nevertheless be tendered,
provided that all of the following conditions are satisfied:
(i) such tender is made by or through an Eligible Institution;
6
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by Purchaser, is received
by the Depositary as provided below on or prior to the Expiration Date; and
(iii) the Share Certificates, in proper form for transfer (or Book-Entry
Confirmation with respect to such Shares), together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and
any other documents required by the Letter of Transmittal, are received by
the Depositary within three American Stock Exchange ("Amex") trading days
after the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or may be
transmitted by telegram, facsimile transmission or mail, to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery provided by Purchaser.
Notwithstanding any other provision hereof, payment for Shares tendered and
accepted for payment pursuant to the Offer will in all cases be made only after
timely receipt by the Depositary of (i) Share Certificates (or a timely
Book-Entry Confirmation with respect thereto), (ii) a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) or, in the case of
Book-Entry Transfer, an Agent's Message and (iii) any other documents required
by the Letter of Transmittal.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Purchaser, in its sole discretion, which
determination shall be final and binding. Purchaser reserves the absolute right
to reject any or all tenders of any particular Shares that it determines are not
in proper form or the acceptance for payment of which may, in the opinion of
Purchaser's counsel, be unlawful. Purchaser also reserves the absolute right to
waive any of the conditions of the Offer or to waive any defect or irregularity
in the tender of any Shares with respect to any particular stockholder, whether
or not similar defects or irregularities are waived in the case of other
stockholders. No tender of any Shares will be deemed to have been validly made
until all defects and irregularities have been cured or waived. None of
Purchaser, Parent, the Depositary, the Information Agent or any other person
will be under any duty to give notice of any defects or irregularities in
tenders or incur any liability for failure to give any such notice. Purchaser's
interpretation of the terms and conditions of the Offer (including the Letter of
Transmittal and the instructions thereto) will be final and binding.
OTHER REQUIREMENTS. By executing a Letter of Transmittal as set forth
herein, a tendering stockholder irrevocably appoints designees of Purchaser as
such stockholder's proxies, each with full power of substitution, in the manner
set forth in the Letter of Transmittal to the full extent of such stockholder's
rights with respect to the Shares tendered by such stockholder and accepted for
payment by Purchaser (and with respect to any and all other Shares or other
securities issued or issuable in respect of such Shares on or after January 19,
1999), effective when, if and to the extent that Purchaser accepts such Shares
for payment pursuant to the Offer. All such proxies shall be considered coupled
with an interest in the tendered Shares. Such appointment is effective when, and
only to the extent that, Purchaser accepts such Shares for payment. Upon such
acceptance for payment, all prior proxies given by such stockholder with respect
to such Shares will, without further action, be revoked, and no subsequent
proxies may be given nor any subsequent written consent executed by such
stockholder with respect to such Shares (and if given or executed, will not be
deemed to be effective). The designees of Purchaser will be empowered, with
respect to such Shares for which the appointment is effective, to exercise all
voting and other rights (whether by written consent or otherwise) of such
stockholder as they, in their sole discretion, may deem proper at any annual or
special meeting of the Company's stockholders or any adjournment of postponement
thereof, by written consent in lieu of any such meeting or otherwise. Purchaser
reserves the right to require that, in order for Shares to be deemed validly
tendered, immediately upon Purchaser's payment for such Shares Purchaser must be
able to exercise full voting rights with respect to such Shares.
7
Purchaser's acceptance for payment of Shares tendered pursuant to any of the
procedures described above will constitute a binding agreement between the
tendering stockholder and Purchaser upon the terms and subject to the conditions
of the Offer.
TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING ON PAYMENTS OF CASH
PURSUANT TO THE OFFER, A STOCKHOLDER TENDERING SHARES IN THE OFFER MUST PROVIDE
THE DEPOSITARY WITH SUCH STOCKHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER
("TIN") ON A SUBSTITUTE FORM W-9 AND CERTIFY UNDER PENALTIES OF PERJURY THAT
SUCH TIN IS CORRECT AND THAT SUCH STOCKHOLDER IS NOT SUBJECT TO BACKUP
WITHHOLDING. All stockholders tendering Shares pursuant to the Offer should
complete and sign the Substitute Form W-9 included as a part of the Letter of
Transmittal to provide the information and certification necessary for
stockholders not subject thereto to avoid backup withholding. Noncorporate
foreign stockholders should complete and sign a Form W-8, Certificate of Foreign
Status, a copy of which may be obtained from the Depositary, in order to avoid
backup withholding. See Instruction 9 to the Letter of Transmittal.
SECTION 4. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer are irrevocable except as
otherwise provided in this Section 4. Shares tendered pursuant to the Offer may
be withdrawn at any time prior to the Expiration Date. Shares may also be
withdrawn at any time after March 27, 1999 unless theretofore accepted for
payment as provided herein. If Purchaser extends the Offer or if Purchaser is
delayed in its acceptance for payment of Shares or is unable to accept Shares
for payment pursuant to the Offer for any reason, then, without prejudice to
Purchaser's rights under the Offer, the Depositary may nevertheless, on behalf
of Purchaser, retain tendered Shares, and such Shares may not be withdrawn
except to the extent that tendering stockholders properly withdraw such Shares
as set forth in this Section 4.
For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
its address specified on the back cover page of this Offer to Purchase. Any
notice of withdrawal must specify the name of the person who tendered the Shares
to be withdrawn, the number of Shares to be withdrawn and (if Share Certificates
for such Shares have been tendered) the names in which the Share Certificate(s)
representing such Shares are registered, if different from that of the person
tendering such Shares. If Share Certificate(s) have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such Share
Certificate(s), the serial numbers shown on such Share Certificate(s) must be
submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution, the signature(s) on the notice of withdrawal must be
guaranteed by an Eligible Institution. If Shares to be withdrawn have been
tendered pursuant to the procedure for book-entry transfer as set forth in
Section 3, any notice of withdrawal of such Shares must specify the name and
number of the account at the Book-Entry Transfer Facility and otherwise comply
with the Book-Entry Transfer Facility's procedures for withdrawal.
Withdrawals of tenders of Shares may not be rescinded, and any Shares
properly withdrawn will thereafter be deemed not validly tendered for purposes
of the Offer. However, properly withdrawn Shares may be retendered at any
subsequent time prior to the Expiration Date by following any of the procedures
set forth in Section 3.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be resolved by Purchaser, in its sole discretion,
which resolution shall be final and binding. None of Purchaser, Parent, the
Depositary, the Information Agent or any other person will be under any duty to
give notice of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notice.
8
SECTION 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The summary of federal income tax consequences set forth below is for
general information only and is based on Purchaser's understanding of the law as
currently in effect. The tax consequences to each stockholder will depend in
part upon such stockholder's particular situation. Special tax consequences not
described herein may be applicable to particular classes of taxpayers, such as
financial institutions, broker-dealers, persons who are not citizens or
residents of the United States, stockholders who acquired their Shares through
the exercise of an employee stock option or otherwise as compensation and other
stockholders who do not hold their Shares as capital assets. ALL STOCKHOLDERS
SHOULD CONSULT WITH THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES
OF THE OFFER AND THE MERGER TO THEM, INCLUDING THE APPLICABILITY AND EFFECT OF
THE ALTERNATIVE MINIMUM TAX AND ANY STATE, LOCAL OR FOREIGN INCOME AND OTHER TAX
LAWS AND OF CHANGES IN SUCH TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or in the Merger will
be a taxable sale or exchange for U.S. federal income tax purposes under the
Internal Revenue Code of 1986, as amended (the "Code"), and may also be a
taxable transaction under applicable state, local or foreign tax laws. In
general, a stockholder who receives cash for Shares pursuant to the Offer or the
Merger will recognize gain or loss for U.S. federal income tax purposes equal to
the difference between the amount of cash received in exchange for the Shares
sold and such stockholder's adjusted tax basis in such Shares. Assuming the
Shares constitute capital assets in the hands of the stockholder, such gain or
loss will be capital gain or loss and will be long term capital gain or loss if
the stockholder has held the Shares for more than one year at the time of sale.
Under current law, gain or loss will be calculated separately for each Share or,
where applicable, block of Shares (i.e., a group of Shares with the same tax
basis and holding period) tendered pursuant to the Offer.
A stockholder (other than certain exempt stockholders including, among
others, all corporations and certain foreign individuals and entities) that
tenders Shares may, although not otherwise subject to backup withholding be
subject to backup withholding if the stockholder fails to provide its TIN, fails
to certify that such number is correct or properly certify that it is awaiting a
TIN or if the Internal Revenue Service (the "IRS") notifies the Depositary that
the TIN is incorrect. A stockholder who does not furnish its TIN may be subject
to a penalty imposed by the IRS. See Section 3.
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the federal income tax liability of the person subject to the backup
withholding, provided that the required information is given to the IRS. If
backup withholding results in an overpayment of tax, a refund can be obtained by
the stockholder upon filing an appropriate income tax return.
THE FOREGOING DISCUSSION MAY NOT BE APPLICABLE TO CERTAIN TYPES OF
STOCKHOLDERS, INCLUDING STOCKHOLDERS WHO ACQUIRED SHARES PURSUANT TO THE
EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS COMPENSATION, INDIVIDUALS WHO
ARE NOT CITIZENS OR RESIDENTS OF THE UNITED STATES AND FOREIGN CORPORATIONS.
9
SECTION 6. PRICE RANGE OF THE SHARES.
The Shares are listed and principally traded on Amex under the symbol ASW.
The following table sets forth, for the periods indicated, the high and low
sales prices per Share on Amex, as reported by Amex:
[Enlarge/Download Table]
HIGH LOW
-------- ---------
Year Ended December 31, 1996:
First Quarter...................................................................................... $ 2 3/4 $ 1 3/4
Second Quarter..................................................................................... 2 3/4 2
Third Quarter...................................................................................... 3 2 3/8
Fourth Quarter..................................................................................... 3 2 1/8
Year Ended December 31, 1997:
First Quarter...................................................................................... $ 4 7/16 $ 2 13/16
Second Quarter..................................................................................... 3 1/16 2 7/16
Third Quarter...................................................................................... 3 3/4 2 1/2
Fourth Quarter..................................................................................... 3 5/8 2 1/2
Year Ended December 31, 1998:
First Quarter...................................................................................... $ 3 $ 2 5/8
Second Quarter..................................................................................... 3 5/8 2 3/4
Third Quarter...................................................................................... 2 7/8 1 5/8
Fourth Quarter..................................................................................... 2 1/2 1
Year Ending December 31, 1999:
First Quarter (through January 22, 1999)........................................................... $ 3 3/16 $ 1 3/8
As of January 19, 1999, there were 581 holders of record of the Shares. On
January 15, 1999, the last full trading day prior to the approval of the Merger
Agreement by the Board and the announcement of the execution of the Merger
Agreement, the closing sales price on the Amex was $2 7/16 per Share.
Stockholders are urged to obtain a current market quotation for the Shares.
SECTION 7. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as otherwise set forth herein, the information concerning the Company
contained in this Offer to Purchase, including financial information, has been
furnished by the Company or has been taken from, or based upon, publicly
available documents and records on file with the SEC and other sources.
Stockholders are urged to review the publicly available information concerning
the Company before acting on the Offer. Neither Purchaser, Parent nor any of
their respective affiliates assumes any responsibility for the accuracy or
completeness of the information concerning the Company furnished by the Company
or contained in such documents and records or for any failure by the Company to
disclose events which may have occurred or may affect the significance or
accuracy of any such information but which are unknown to Purchaser, Parent or
their respective affiliates.
GENERAL. The Company is an international marketing research firm providing
clients with a broad selection of services to assist in the development of
marketing, advertising and investment strategies. The Company's marketing
research services, conducted in over 80 countries, are provided to major
commercial, industrial, institutional and academic organizations. Its most
significant clients, by 1998 revenue, include AT&T, Amerada Hess, The Coca-Cola
Company, IBM, MasterCard International, Shell Oil Company, Sunstar Inc., Volvo
Corporation of North America, United Parcel Service and Xerox. The Company was
incorporated in Delaware and its principal executive offices are at 650 Avenue
of the Americas, New York, New York 10011.
FINANCIAL INFORMATION. Set forth below is a summary of certain selected
consolidated financial information relating to the Company and its subsidiaries
which has been excerpted or derived from the
10
audited consolidated financial statements contained in Part I, Item 8 of the
Company's Annual Report on Form 10-K for the fiscal years ended December 31,
1996 and 1997 (the "Form 10-Ks") and the unaudited consolidated financial
statements contained in Part I, Item 1 of the Company's Quarterly Reports on
Form 10-Q for the nine months ended September 30, 1998, 1997 and 1996 (the "Form
10-Qs"), which financial statements are incorporated herein by this reference.
More comprehensive financial information is included in the Form 10-Ks, Form
10-Qs and other documents filed by the Company with the SEC. The financial
information that follows is qualified in its entirety by reference to such
reports and other documents, including the consolidated financial statements and
related notes contained therein. Such reports and other documents may be
examined and copies may be obtained from the offices of the SEC in the same
places and in the same manner as set forth below.
AUDITS & SURVEYS WORLDWIDE, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
[Enlarge/Download Table]
FISCAL YEAR ENDED
DECEMBER 31,
-------------------------------------------
1997 1996 1995
------------- ------------- -------------
INCOME STATEMENT:
Revenues.......................................................... $ 68,870 $ 60,368 $ 54,626
Income before provision for income taxes.......................... 2,395 4,408 1,553
Net Income........................................................ 1,418 2,589 846
Basic Earnings per common shares.................................. .11 .20 .07
Weighted Average common shares outstanding........................ 13,104,759 13,099,103 12,499,213
BALANCE SHEET (AT END OF PERIOD):
Cash and cash equivalents......................................... 1,524 3,827 936
Total assets...................................................... 28,455 26,509 24,887
Long-term debt (net of current portion)........................... 1,702 1,943 2,647
Stockholders' equity.............................................. 9,806 8,467 6,627
AUDITS & SURVEYS WORLDWIDE, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
[Enlarge/Download Table]
NINE MONTHS ENDED SEPT. 30,
-------------------------------------------
1998 1997 1996
------------- ------------- -------------
(UNAUDITED)
-------------------------------------------
INCOME STATEMENT:
Revenues.......................................................... $ 40,438 $ 49,903 $ 44,997
Income (loss) before provision (benefit for income taxes.......... (158) 2,376 3,470
Net income (loss)................................................. (29) 1,402 1,904
Basic earnings (loss) per common share............................ -- .11 .15
Weighted Average common shares outstanding........................ 13,113,646 13,103,095 13,099,103
BALANCE SHEET (AT END OF PERIOD):
Cash and cash equivalents......................................... 849 1,072 2,093
Total assets...................................................... 24,893 29,302 24,090
Long-term debt (net of current portion)........................... 1,238 1,857 2,083
Stockholders' equity.............................................. 9,770 9,788 8,449
11
In connection with Parent's review of the Company and in the course of the
discussions between Parent and the Company described in Section 10, the Company
provided Parent with certain business and financial information that Purchaser
and Parent believe is not publicly available. For the year ended December 31,
1998, the Company forecast revenues of $58.3 million, operating income of $0.8
million, income before taxes of $1.1 million and net income per Share of $0.06
based on 13,115,000 Shares outstanding. For the year ending December 31, 1999,
the Company forecast revenues of $68.5 million, operating income of $6.3
million, income before taxes of $4.2 million and net income per Share of $0.19
based on 13,116,000 Shares outstanding.
PROJECTED INFORMATION OF THIS TYPE IS BASED ON ESTIMATES AND ASSUMPTIONS
ABOUT COMPLEX ECONOMIC AND OPERATING FACTORS THAT ARE INHERENTLY SUBJECT TO
SIGNIFICANT ECONOMIC AND COMPETITIVE UNCERTAINTIES AND CONTINGENCIES, ALL OF
WHICH ARE DIFFICULT TO PREDICT AND MANY OF WHICH ARE BEYOND THE COMPANY'S
CONTROL. ACCORDINGLY, THERE IS NO ASSURANCE THAT THE PROJECTED RESULTS WOULD BE
REALIZED OR THAT ACTUAL RESULTS WOULD NOT BE SIGNIFICANTLY HIGHER OR LOWER THAN
THOSE SET FORTH ABOVE. IN ADDITION, THESE PROJECTIONS WERE NOT PREPARED WITH A
VIEW TO PUBLIC DISCLOSURE OR COMPLIANCE WITH THE PUBLISHED GUIDELINES OF THE SEC
OR THE GUIDELINES ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC
ACCOUNTANTS REGARDING PROJECTIONS AND FORECASTS AND ARE INCLUDED IN THIS OFFER
TO PURCHASE ONLY BECAUSE SUCH INFORMATION WAS MADE AVAILABLE TO PURCHASER AND
PARENT BY THE COMPANY. NONE OF PURCHASER, PARENT, THE COMPANY, ANY OF THEIR
RESPECTIVE AFFILIATES OR ANY OTHER PARTY ASSUMES ANY RESPONSIBILITY FOR THE
ACCURACY OR VALIDITY OF THE FOREGOING PROJECTIONS.
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information with the SEC. The reports, proxy statements and other information
filed by the Company with the SEC can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices at
7 World Trade Center, 13th Floor, New York, New York 10048, and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information relating to the public reference rooms.
Copies of such material also can be obtained from the Public Reference Section
of the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. In addition, the SEC maintains a worldwide web site
(http://www.sec.gov) that contains certain reports, proxy statements and other
information regarding registrants, such as the Company, that file electronically
with the SEC. Material filed by the Company also can be inspected at the offices
of the Amex, 86 Trinity Place, New York, New York 10006.
Purchaser and Parent have filed a Tender Offer Statement on Schedule 14D-1
(together with any amendments thereto, the "Schedule 14D-1") with the SEC in
connection with the Offer. This Offer to Purchase does not contain all the
information set forth in the Schedule 14D-1 and the exhibits thereto. Such
additional information may be obtained from the SEC's principal office in
Washington, D.C. Statements contained in this Offer to Purchase or in any
document incorporated in this Offer to Purchase by reference as to the contents
of any contract or other document referred to herein or therein are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Schedule 14D-1 or such
other document, each such statement being qualified in all respects by such
reference.
SECTION 8. CERTAIN INFORMATION CONCERNING PURCHASER AND PARENT.
PURCHASER. Purchaser is a newly incorporated Delaware corporation organized
in connection with the Offer and the Merger and has not carried on any
activities other than in connection with the Offer and the
12
Merger. The principal offices of Purchaser are located at Two World Trade
Center, Suite 5550, New York, New York 10048. Purchaser is a direct wholly-owned
subsidiary of Parent. Until immediately prior to the time that Purchaser will
purchase Shares pursuant to the Offer, it is not anticipated that Purchaser will
have any significant assets or liabilities or engage in activities other than
those incident to its formation and capitalization and the transactions
contemplated by the Offer and the Merger. Because Purchaser is newly formed and
has minimal assets and capitalization, no meaningful financial information
regarding Purchaser is available.
PARENT. Parent is a Delaware corporation and its principal offices are at
the same address as given above for Purchaser. Parent is a wholly-owned indirect
subsidiary of United News & Media public limited company, a public limited
company registered in England and Wales ("United"), which is a leading trade
exhibition organizer, business magazine and advertising periodical publisher and
corporate news distributor. Within the United Kingdom, United also is a leading
national newspaper publisher and has significant broadcasting operations.
The name, current business address, citizenship, and present principal
occupation or employment, and five-year employment history for each of the
directors and executive officers of Purchaser, Parent and United, and certain
other information, are set forth on Schedule I hereto.
United is subject to certain limited informational filing requirements of
the Exchange Act as a foreign private issuer, and in accordance therewith is
obligated to file periodic reports, proxy statements and other information with
the SEC relating to its business, financial statements and other matters. Such
reports, proxy statements and other information filed by United are available
for inspection and copying at the public reference facilities of the SEC in the
same places and in the same manner as set forth with respect to the Company in
Section 7, except that such documents are not available on EDGAR.
For the year ended December 31, 1997, United had revenues of approximately
$3.7 billion and profit after tax of approximately $259.9 million. United's
stockholders' equity at June 30, 1998 was approximately $1,743.7 million with
approximately $502.1 million of cash and cash equivalents.
United's consolidated balance sheet and the related consolidated profit and
loss account and consolidated cash flow statement for the three years ended
December 31, 1997, 1996 and 1995 contained in Part IV, Item 19 of United's
Annual Report on Form 20-F for the year ended December 31, 1997 filed with the
SEC (the "Annual Report") are hereby incorporated by reference. A copy of the
Annual Report may be obtained (i) by writing to United at Ludgate House, 245
Blackfriars Road, London SE1 9UY, United Kingdom, attention: Corporate Secretary
or (ii) upon payment of the SEC's customary fees, by writing to its principal
office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
Additionally, the Annual Report may be inspected at the SEC's offices.
Except as provided in the Merger Agreement, the Inducement Agreement and as
otherwise described in this Offer to Purchase, (i) none of Purchaser, Parent
nor, to the knowledge of Purchaser and Parent, any of the persons listed in
Schedule I to this Offer to Purchase, or any associate or majority-owned
subsidiary of Purchaser, Parent or any of the persons so listed beneficially
owns or has any right to acquire, directly or indirectly, any Shares or has any
contract, arrangement, understanding or relationship with any other person with
respect to any securities of the Company, including, but not limited to, any
contract, arrangement, understanding or relationship concerning the transfer or
the voting of such securities, joint ventures, loan or option arrangements, puts
or calls, guaranties of loans, guaranties against loss or the giving or
withholding of proxies and (ii) none of Purchaser, Parent nor, to the knowledge
of Purchaser and Parent, any of the persons or entities referred to above nor
any director, executive officer or subsidiary of any of the foregoing has
effected any transactions in any Shares during the past 60 days.
13
Except as provided in the Merger Agreement, the Inducement Agreement and as
otherwise described in this Offer to Purchase, since January 1, 1996 none of
Purchaser, Parent nor to the knowledge of Purchaser and Parent, any of the
persons listed in Schedule I to this Offer to Purchase, has had any transactions
with the Company or any of its executive officers, directors or affiliates that
is required to be reported under the rules and regulations of the SEC applicable
to the Offer. Except as provided in the Merger Agreement, the Inducement
Agreement and as otherwise outlined in this Offer to Purchase, since January 1,
1996 there have been no contacts, negotiations or transactions between any of
Purchaser, Parent, or any of their subsidiaries or, to the best knowledge of
Purchaser and Parent, any of the persons listed in Schedule I to this Offer to
Purchase, on the one hand, and the Company or its affiliates, on the other hand,
concerning a merger, consolidation or acquisition, a tender offer for or other
acquisition of securities of any class of the Company, an election of directors
of the Company, or a sale or other transfer of a material amount of assets of
the Company or any of its subsidiaries.
SECTION 9. FINANCING OF THE OFFER AND THE MERGER.
The total amount of funds required by Purchaser to consummate the Offer and
the Merger is estimated to be approximately $43.9 million, including
approximately $0.8 million to pay related fees and expenses. Purchaser will
obtain all such funds from Parent. Parent will obtain such funds from the
working capital of its affiliates.
SECTION 10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY; MERGER
AGREEMENT; INDUCEMENT AGREEMENT; EMPLOYMENT AMENDMENTS.
BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY.
On April 23, 1997, the Company executed a letter agreement engaging Allen &
Company Incorporated ("Allen") as its financial advisor. A summary of the terms
and provisions of that letter agreement, including the terms of the engagement
and fees payable to Allen upon consummation of the transactions contemplated by
the Merger Agreement, are described below in Item 16. Allen prepared a list of
prospects which included United Information Group Limited, a subsidiary of
United ("UIG").
In late May 1997, Alain Tessier, the Chief Executive Officer of Mediamark
Research Inc ("MRI"), a subsidiary of UIG, approached Solomon Dutka, Chairman
and Chief Executive of the Company as to the possibility of some type of
transaction between UIG and the Company. On June 2, 1997, Mr. Tessier and Graham
Hill, the Chief Executive Officer of UIG, met with Dr. Dutka and H. Arthur
Bellows, Jr., President of the Company, at the offices of the Company to discuss
UIG's interest in acquiring all of the outstanding common stock of the Company
in a transaction which valued the Company at between $40 million and $60
million. On June 4, 1997, Mr. Hill sent an initial draft of a Confidentiality
Letter and the Company furnished to UIG a "press kit" containing current SEC
filings, press releases and investment analyst reports about the Company. On
June 5, 1997, the Company and UIG signed the Confidentiality Letter.
On June 27, 1997, Mr. Hill wrote to Mr. Bellows to indicate that based upon
its initial review of the "press kit", UIG valued the Company at $50 million. On
July 2, 1997, Mr. Bellows contacted Mr. Hill by telephone and informed him that
such valuation was not acceptable to the Company and agreed to provide UIG with
additional internal, non-public information with respect to the Company to
assist in UIG's valuation process. In early July 1997, Mr. Bellows provided UIG
with additional internal, non-public information on the Company as well as an
analytical memorandum prepared by Allen.
On July 18, 1997, Mr. Hill contacted Mr. Bellows by telephone and informed
him that all of the data reviewed by UIG suggested a valuation of the Company at
$50 million. Mr. Bellows reiterated to Mr. Hill that such a valuation was not
acceptable to the Company. In August 1997, Mr. Hill contacted Mr. Bellows by
telephone to request updated data on the Company in order for UIG to attempt to
justify a higher
14
valuation for the Company. On September 23, 1997, Mr. Bellows sent the updated
data on the Company to UIG for its review.
On September 25, 1997, Mr. Hill and Michael Spedding, the Finance Director
of UIG, met with Mr. Bellows, Alan Ritter and Robert Miller of the Company (Mr.
Miller also being a Vice President and a Director of Allen) at the offices of
the Company to discuss the updated data. Mr. Hill requested additional data from
the Company and set forth UIG's review process and schedule which would
ultimately include its review by Charles Gregson, the Executive Director of
United.
In early November 1997, Dr. Dutka and Lou Bender, the President of MRI met
at the Company's offices to discuss the involvement Dr. Dutka might have with
the Company in the event the proposed transaction were consummated.
On November 14, 1997, Mr. Hill wrote to Dr. Dutka to indicate that UIG
valued the Company at $55 million, subject to UIG's review of the Company's
audited 1997 financial statements and further due diligence. On November 20,
1997, the Board of Directors of the Company met to review the proposed
transaction and UIG's valuation of the Company and the Board of Directors voted
to end further discussions with UIG.
In early January 1998, Mr. Gregson met with Dr. Dutka at the Company's
offices and reiterated UIG's continuing interest in acquiring all of the
outstanding capital stock of the Company and agreed to reexamine UIG's November
1997 valuation of the Company. On January 14, 1998, Mr. Gregson contacted Dr.
Dutka by telephone and suggested that UIG now valued the Company at $60 million.
On January 15, 1998, Dr. Dutka expressed the Company's interest in considering
the revised valuation, but urged that the transaction proceed on a more
expeditious basis.
On February 3, 1998, Mr. Gregson wrote to Dr. Dutka to confirm that UIG
valued the Company at $60 million, to define the conditions that justified such
a valuation and to set forth a process to close the transaction. During February
and March 1998, the Company's updated financial statements for 1997 and
additional operating and financial schedules and analyses were furnished to UIG
by the Company.
On April 21, 1998, Messrs. Bellows, Ritter, Klein, Miller, Hill, Spedding
and Bender met at the Company's offices to review the Company's financial
results for the first quarter of 1998. Mr. Hill requested additional analyses of
the Company's financial prospects and Mr. Bellows agreed to provide such
analyses. On April 23, 1998, Messrs. Bellows, Ritter, Klein, Miller, Hill,
Spedding and Bender met at the Company's offices to review the special analyses
and preliminary estimates of the Company's financial results for the remainder
of 1998. On April 24, 1998, Messrs. Bellows, Ritter, Klein, Miller, Hill and
Spedding met at the Company's offices to discuss UIG's reaction to the Company's
lower than projected first quarter earnings for 1998 and the outlook for the
remainder of 1998. Mr. Hill expressed to the Company that a valuation of $60
million could not be justified due to the lower than expected earnings for the
first quarter of 1998. Mr. Bellows suggested that the Company develop additional
analyses of its future performance, Mr. Hill agreed to review such additional
analyses, which were delivered to UIG in mid-May 1998.
On May 20, 1998, Messrs. Hill, Spedding, Bender and Matthew Kirby, Chief
Financial Officer of UIG's affiliate, Bruskin/Goldring Research, Inc., met with
Messrs. Bellows, Klein, Ritter and Miller at the Company's offices to place a
final valuation on the Company based on the additional analyses provided to UIG.
Mr. Hill suggested a possible transaction for $50 million, less the value of any
outstanding employment agreements, vested stock options and any additional
incentives necessary to retain key employees of the Company. This proposal was
deemed unacceptable by the Company's representatives. By letter dated May 29,
1998 Mr. Hill reiterated UIG's offer to Mr. Miller and expressed UIG's hope that
the Company would reconsider the transaction.
On July 8, 1998, Mr. Ravitch contacted James Rose, the new Chief Executive
Officer of UIG in London, and in meetings held that day at the Parent's offices
in London Mr. Rose indicated to Mr. Ravitch
15
that UIG was willing to enter into new negotiations concerning the acquisition
of all of the capital stock of the Company. Mr. Ravitch informed Mr. Bellows of
UIG's renewed interest in the transaction. Mr. Bellows suggested that Mr. Rose
meet with him and Dr. Dutka in Berlin in mid-September to discuss the matter
further.
On September 14, 1998, Dr. Dutka and Mr. Bellows met Mr. Rose at the Adlon
Hotel in Berlin. Mr. Rose indicated that, subject to the satisfaction of a
number of matters and updated due diligence, the Parent would be prepared to
proceed with a transaction which valued the Company at the equivalent of $3.43
per Share in cash ($45 million), which would exclude any deductions for the
value of any outstanding employment agreements, vested stock options and any
additional incentives necessary to retain key employees of the Company. The
Company agreed to explore reopening negotiations on that basis.
On September 23, 1998, Mr. Rose wrote to Mr. Bellows to outline the process
for a final due diligence review of the Company. On October 6, 1998, Messrs.
Bellows and Rose met in New York, where Mr. Bellows presented Mr. Rose with
financial projections for the remainder of 1998 and they agreed to proceed with
the transaction which valued the Company at the equivalent of $3.43 per Share in
cash ($45 million) calculated as agreed at the meeting in Berlin. On October 9,
1998, at a meeting in New York attended by Messrs. Bellows, Ritter, Klein,
Miller, Rose, Bender, Spedding and Kirby, as well as representatives of counsel
to the Company and UIG and the independent auditors of the Company and UIG, the
Company presented additional information and analysis to UIG. The parties and
their counsel also discussed certain provisions that would be contained in the
Merger Agreement and the Inducement Agreement.
On November 2, 1998, Messrs. Bellows, Ritter, Klein, Miller, Rose, Spedding,
Bender and Kirby met at the offices of the Company's counsel in New York, where
the Company presented its financial projections for the fourth quarter of 1998
and for 1999 to UIG.
The first draft of the Merger Agreement was distributed in early November
1998. Thereafter the parties and their counsel negotiated the terms of the
Merger Agreement, the Inducement Agreement and the Employment Agreement
Amendments.
On November 5, 1998, Mr. Rose met separately with each of Dr. Dutka and Mr.
Bellows in New York to discuss the involvement each of them might have with the
Company in the event the proposed transaction were consummated.
On November 6, 1998, the Company and UIG entered into a new Confidentiality
Agreement and on November 14, 1998, the parties entered into an Exclusivity
Period Letter Agreement. On November 24, 1998, Messrs. Bellows and Rose
confirmed by telephone the closing schedule and the timing of each party's Board
of Directors meeting, each scheduled for December 10, 1998. On November 25,
1998, Peter Andrews of the Company discussed the Company's Y2K compliance with
consultants to UIG at the offices of the Company. On December 1, 1998, Messrs.
Dutka and Rose met at the offices of the Company to discuss Dr. Dutka's future
role in the Company.
On the morning of December 9, 1998, Mr. Rose contacted Mr. Bellows by
telephone and informed him that UIG was prepared to offer the equivalent of
$3.05 per Share in cash ($40 million) and that such proposal would be presented
to the Board of Directors of UIG on December 10, 1998. Mr. Bellows, after
consultation with Dr. Dutka and Mr. Ravitch, contacted Mr. Rose by telephone
later that morning and expressed the Company's position that it was only
prepared to accept the $45 million in cash proposal, without deductions of any
kind and would therefore cancel its Board of Directors meeting scheduled for
December 10, 1998.
On December 14, 1998, Messrs. Rose and Gregson met with Mr. Miller at the
offices of Allen in New York, at which time Mr. Miller reiterated the Company's
position of December 9, 1998. Later that day, Messrs. Rose, Gregson, Dutka,
Bellows and Miller met to discuss certain tax issues that had arisen. UIG
indicated that it was prepared to proceed with the transaction for the
equivalent of $3.24 per Share in cash
16
($42.5 million) less any deduction for possible tax liabilities. UIG requested
48 hours to further examine the tax issue. On December 17, 1998, Messrs. Ritter
and Bellows met with Arthur Gelber, a tax accountant retained by the Company,
Richard Block, the Chief Financial Officer of United's U.S. head office, and a
representative of Arthur Andersen & Co. to discuss the Company's tax issues.
On December 22, 1998, Messrs. Gregson and Spedding contacted Mr. Bellows by
telephone and indicated that the Parent was prepared to proceed with the
transaction at the equivalent of $3.18 per Share in cash ($41.75 million). Later
that day, Mr. Bellows informed Mr. Gregson by telephone that such a valuation
was unacceptable to the Company.
On January 4, 1999, Mr. Gregson contacted Mr. Miller by telephone to inquire
as to the status of the transaction and was informed by Mr. Miller that the
transaction could not proceed at the $41.75 million proposal. Mr. Gregson
requested that Mr. Miller contact the Company to ascertain its willingness to
proceed with the transaction. On January 5, Mr. Miller contacted Dr. Dutka and
Mr. Bellows by telephone, who advised Mr. Miller that the Company was willing to
enter into the transaction at the equivalent of $3.24 per Share in cash ($42.5
million), with no allowance for deductions of any kind. Mr. Miller advised Mr.
Gregson of the Company's position.
On January 6, 1999, Mr. Miller contacted Dr. Dutka by telephone and advised
him that UIG had revised its offer to the equivalent of $3.22 per Share in cash
($42.25 million). Dr. Dutka informed Mr. Miller that the Company would not
accept such a valuation. On January 8, 1999, John Botts, a non-executive
Director of United, contacted Mr. Miller by telephone and informed Mr. Miller
that UIG would enter into the transaction for the equivalent of $3.24 per Share
in cash ($42.5 million). Mr. Miller contacted Mr. Gregson by telephone to
confirm such offer, without allowance for deductions of any kind, subject to the
approval of their respective boards and the mutually satisfactory negotiation of
the remaining terms and conditions of the Merger Agreement and the Inducement
Agreement.
On January 14, 1999, Allen delivered its written opinion to the Board of
Directors of the Company to the effect that, as of such date and based upon and
subject to certain matters stated in such opinion, the cash consideration of
$3.24 per Share to be received by holders of Shares in the Offer and the Merger,
taken together, was fair, from a financial point of view, to such holders. A
copy of Allen's letter is attached as Annex II to the Company's Schedule 14D-9
and incorporated by reference herein. The Board reviewed the letter as well as
the principal terms of the Offer and Merger at a meeting held on such date.
On January 19, 1999, the Board of Directors of the Company met and (i)
approved the Merger Agreement and the transactions contemplated thereby and
authorized the execution and delivery thereof, (ii) determined that the Offer
and the Merger, taken together, are fair to, and in the best interests of, the
Company and its stockholders, and (iii) recommended that the Company's
stockholders accept the Offer and tender their Shares to the Purchaser.
On January 19, 1999, the Purchaser, the Company and United News & Media
Group Limited executed the Merger Agreement. On January 19, 1999, the Purchaser
and the Company separately announced the transaction.
THE MERGER AGREEMENT.
The following summary of certain provisions of the Merger Agreement is
presented only as a summary and is qualified in its entirety by reference to the
Merger Agreement, a copy of which has been filed as an exhibit to Purchaser's
and Parent's Schedule 14D-1 and 13D.
THE OFFER. The Merger Agreement provides that as promptly as reasonably
practicable after the date of execution of the Merger Agreement, but in no event
later than five business days after the public announcement of the execution of
the Merger Agreement, Purchaser will commence the Offer for all of the
outstanding Shares at a price of not less than $3.24 per share in cash, net to
the seller, subject to the satisfaction of conditions set forth in Section 14 of
this Offer to Purchase and, subject only to the terms and
17
conditions of the Offer, will pay, as promptly as reasonably practicable, after
expiration of the Offer for all Shares duly tendered thereunder and not
withdrawn. Purchaser may waive any condition to the Offer, increase the price
per Share payable in the Offer and make any other changes in the terms and
conditions of the Offer. However, no change may be made which decreases the
price per Share payable in the Offer or changes the form of consideration
payable in the Offer, which reduces the maximum number of Shares to be purchased
in the Offer or which imposes conditions to the Offer other than those described
in Section 14 of this Offer to Purchase or which extends the Offer (except as
set forth in the following sentence). Notwithstanding the foregoing, Purchaser
may, without the consent of the Company, (i) extend the Offer beyond the
scheduled expiration date (the initial scheduled expiration date being 20
business days following the commencement of the Offer) if, at the scheduled
expiration date of the Offer, any of the conditions to Purchaser's obligation to
accept for payment, and to pay for, the Shares, shall not be satisfied or
waived, (ii) extend the Offer for any period required by any rule, regulation or
interpretation of the SEC or the staff thereof applicable to the Offer, or (iii)
extend the Offer for an aggregate period of not more than 10 business days
beyond the latest applicable date that would otherwise be permitted under clause
(i) or (ii) of this sentence, if as of such date, Purchaser expressly waives any
condition (other than the Minimum Condition) that subsequently may not be
satisfied during such extension of the Offer and the number of shares validly
tendered and not withdrawn pursuant to the Offer is less than 90 percent of the
outstanding Shares on a fully diluted basis.
THE MERGER. The Merger Agreement provides that, subject to the terms and
conditions thereof, at the Effective Time, at the election of Parent, Purchaser
will be merged with and into the Company and the separate corporate existence of
Purchaser will cease. At the Effective Time, by virtue of the Merger and without
any action on the part of Purchaser, the Company or the holders of Shares, each
Share issued and outstanding immediately prior to the Effective Time (other than
Shares owned by Purchaser, Parent or any direct or indirect wholly-owned
subsidiary of Parent or owned by the Company or any direct or indirect
wholly-owned subsidiary of the Company and Shares that are outstanding
immediately prior to the Effective Time and which are held by stockholders who
shall have not voted in favor of the Merger or consented thereto in writing and
who shall have demanded properly in writing appraisal for such Shares in
accordance with Section 262 of the DGCL) will be converted into the right to
receive the Merger Consideration. Pursuant to the Merger Agreement, each share
of common stock, par value $.01 per share, of Purchaser issued and outstanding
immediately prior to the Effective Time will be converted into and exchanged for
one validly issued, fully paid and nonassessable share of common stock of the
Surviving Corporation.
CHARTER DOCUMENTS; INITIAL DIRECTORS AND OFFICERS. The Certificate of
Incorporation of Purchaser in effect at the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, until duly amended in
accordance with the terms thereof and the DGCL, provided, that the Certificate
of Incorporation of the Surviving Corporation will (i) state that the name of
the Surviving Corporation is Audits & Surveys Worldwide, Inc. and (ii) for a
period of at least six years after the Effective Time, include certain
exculpation provisions which presently appear as Article Ninth of the Restated
and Amended Certificate of Incorporation of the Company. The Merger Agreement
also provides that the By-Laws of Purchaser in effect at the Effective Time
shall be the By-Laws of the Surviving Corporation, until duly amended in
accordance with the terms thereof, the Certificate of Incorporation of the
Surviving Corporation and the DGCL, provided, that, the By-Laws of the Surviving
Corporation will include, for a period of at least six years after the Effective
Time, certain indemnification provisions which presently appear as Article VII
of the Restated and Amended By-Laws of the Company. Pursuant to the Merger
Agreement, the directors of Purchaser and the officers of the Company at the
Effective Time shall be as designated by Purchaser prior to the Effective Time
and shall hold office until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Certificate of Incorporation and By-Laws.
18
STOCKHOLDERS MEETING. The Merger Agreement provides that following
consummation of the Offer, Purchaser and Parent shall, as soon as reasonably
possible, cause the Company to take all action necessary in accordance with the
DGCL, the Company's Certificate of Incorporation and By-Laws and the Exchange
Act to hold a meeting of its stockholders to consider and vote upon the adoption
of this Agreement and the authorization of the Merger. In no event shall such
meeting be held earlier than 20 business days following the date on which a
proxy statement (the "Proxy Statement") is sent to the stockholders of the
Company.
Purchaser will vote all Shares directly or indirectly beneficially owned by
it in favor of the Merger Agreement and the Merger. A vote of the Company's
stockholders will be required whether or not Purchaser acquires 90% of the
outstanding Shares. See Section 11 for a further discussion of certain
provisions of the DGCL and the Company Certificate of Incorporation applicable
to the Merger.
CONDUCT OF BUSINESS. Pursuant to the Merger Agreement, prior to the
Effective Time, except to the extent that Purchaser shall otherwise consent
(including by virtue of action by the Board approved by all of Purchaser's or
Parent's designees), the Company shall, and shall cause its subsidiaries (the
"Subsidiaries") to, except as expressly permitted by the Merger Agreement,
conduct their respective businesses in, and to not take any action except in,
the ordinary course of business in a manner consistent with past practice. The
Company shall, and shall cause its Subsidiaries to, use their respective
reasonable best efforts to preserve intact the business organization of the
Company and its Subsidiaries, to keep available the services of the current
officers, employees and consultants of the Company and its Subsidiaries and to
preserve the current relationships of the Company and its Subsidiaries with
their respective customers and suppliers. Without limiting the generality of the
foregoing, and except as expressly permitted or specifically contemplated by the
Merger Agreement, between the date of the Merger Agreement and the Effective
Time, without the prior written consent of Purchaser:
(i) the Company will not, and will not cause or permit any of the
Subsidiaries to, engage in any activities or transactions which will be
outside the ordinary course of their respective businesses consistent with
past practices, except as shall be provided for or specifically contemplated
by the Merger Agreement, and the Company and the Subsidiaries will consult
with Purchaser (which will be entitled to have two of its designated
representatives present on a full-time basis at the Company's principal
executive offices until the closing or termination of the Merger Agreement
to observe the conduct of the Company's business and be available for such
consultations) prior to making any material business decisions;
(ii) the Company will not subdivide or reclassify the Shares, issue any
shares of its capital stock, except upon the exercise of outstanding options
under the Option Plan, or amend its Certificate of Incorporation or By-Laws;
(iii) the Company will not declare or pay any dividend or other
distribution in respect of its shares of capital stock or acquire for value,
or permit any Subsidiary to acquire for value, any shares of capital stock
of the Company;
(iv) the Company will afford to the officers, attorneys, accountants and
other authorized representatives of Purchaser reasonable access to its and
the Subsidiaries' offices, properties, books, tax returns and minute books
and other corporate records during normal business hours. If for any reason
the Merger is not consummated, Purchaser will cause confidential information
obtained in connection with such investigation to be treated as
confidential;
(v) the Company will not, and will not cause or permit the Subsidiaries
to, take any action to institute any new severance or termination pay
practices with respect to any directors, officers, or employees of the
Company or any of the Subsidiaries or to increase the benefits payable under
its severance or termination pay practices in effect on the date of the
Merger Agreement;
19
(vi) the Company will not, and will not cause or permit the Subsidiaries
to, adopt or amend, in any material respect, except as may be required by
applicable law or regulation, any collective bargaining, bonus, profit
sharing, compensation, stock option, restricted stock, pension, retirement,
deferred compensation, employment or other employee benefit plan, agreement,
trust, fund, plan or arrangement for the benefit or welfare of any
directors, officers or employees of the Company or any of the Subsidiaries
or make any increase in the salaries, compensation or pay scales of any such
directors, officers or employees without Purchaser's prior written consent;
(vii) the Company and the Subsidiaries will use their reasonable best
efforts to maintain their relationships with their material suppliers and
customers, and if and as requested by Purchaser, (a) the Company and the
Subsidiaries shall make reasonable arrangements for representatives of
Purchaser to meet with suppliers and customers of the Company and the
Subsidiaries, and (b) the Company and the Subsidiaries shall schedule, and
the management of the Company and the Subsidiaries shall participate in,
meetings of representatives of Purchaser with employees of the Company and
the Subsidiaries;
(viii) the Company will, and will cause the Subsidiaries to, maintain all
of their material properties (taken as a whole) in customary repair, order
and condition, reasonable wear and tear excepted, and will maintain, and
will cause the Subsidiaries to maintain, insurance upon all of its and their
properties and with respect to the conduct of its and their businesses in
such amounts and of such kinds comparable to that in effect on the date of
the Merger Agreement;
(ix) the Company and the Subsidiaries will maintain their books,
accounts and records in the usual, regular and ordinary manner, on a basis
substantially consistent with prior years;
(x) the Company and the Subsidiaries will duly comply with all laws
applicable to each of them and to the conduct of their respective
businesses, consistent with their past practice;
(xi) no change shall be made in the banking and safe deposit
arrangements of the Company or the Subsidiaries existing on the date hereof
and no powers of attorney shall be granted by the Company or any of the
Subsidiaries;
(xii) except as contemplated by the Merger Agreement, the Company will
not, and will not permit any of the Subsidiaries to, acquire or agree to
acquire by merging or consolidating with, purchasing substantially all of
the assets of or otherwise, any business or any corporation, partnership,
association, or other business organization or division thereof or enter
into any joint venture, partnership, limited liability company operating
agreement or other similar business arrangement;
(xiii) the Company will not, and will not permit the Subsidiaries to,
enter into any contract or commitment containing obligations in excess of
$100,000 or take any action which would have a material adverse effect on
the cash flows of the Company; and
(xiv) the Company will promptly advise Purchaser in writing of any change
in the financial condition, business or operations of the Company and the
Subsidiaries, taken as a whole, and of any breach of its representations or
warranties contained herein which could have a Material Adverse Effect and
will promptly advise Acquisition in writing of all material order
cancellations;
NO SOLICITATION. The Company will not, directly or indirectly, through any
officer, director, agent, financial adviser or otherwise, solicit, initiate or
encourage submission of proposals or offers from any person relating to any
acquisition or purchase of all or a portion of the assets of (other than
immaterial or insubstantial assets or inventory in the ordinary course of
business or assets held for sale), or any equity interest in, the Company or any
material Subsidiary or any business combination with the Company or any material
Subsidiary (an "Acquisition Transaction"), or participate in any negotiations
regarding, or furnish to any other person any information (except for
information which has been previously publicly disseminated by the Company in
the ordinary course of business) with respect to, or otherwise cooperate in any
20
way with, or assist or participate in, facilitate or encourage, any effort or
attempt by any other person to do or seek any of the foregoing; PROVIDED, that
the Company may, in response to an unsolicited Superior Proposal (as hereinafter
defined), furnish information to, and negotiate, explore or otherwise engage in
substantive discussions with such third party, and enter into any agreement,
arrangement or understanding, in each case only if the Board of Directors
determines in good faith, after consultation with and on the basis of advice
from its financial advisors and outside legal counsel, that failing to take such
action would constitute a breach of the fiduciary duties of the Board of
Directors. "Superior Proposal" shall mean a bona fide written proposal made by a
third party to acquire the Company pursuant to a tender or exchange offer, a
merger, a share exchange, a sale of all or substantially all its assets or
otherwise on terms which a majority of the members of the Board of Directors of
the Company determines in good faith (taking into account the advice of
independent financial advisors) to be more favorable to the Company and its
stockholders than the Merger (and any revised proposal made by Purchaser) and
for which financing, to the extent required, is then fully committed or
reasonably determined to be available by the Board of Directors of the Company.
DIRECTORS. Promptly upon the purchase by the Purchaser of all Shares
subject to the Inducement Agreement or any Shares pursuant to the Offer, and
from time to time thereafter as Shares are acquired by the Purchaser, the
Purchaser shall be entitled to designate such number of directors, rounded up to
the next whole number, on the Board of Directors as will give the Purchaser,
subject to compliance with Section 14(f) of the Exchange Act, representation on
the Board of Directors equal to at least that number of directors which equals
the product of the total number of directors on the Board of Directors (giving
effect to the directors appointed or elected pursuant to this sentence and
including current directors serving as officers of the Company) multiplied by
the percentage obtained by dividing (a) the aggregate number of Shares
beneficially owned by the Purchaser or any affiliate of the Purchaser (including
such Shares as are accepted for payment pursuant to the Offer, but excluding
Shares held by the Company) by (b) the number of Shares outstanding (excluding
Shares held by the Company). At such times, if requested by the Purchaser, the
Company will also cause each committee of the Board of Directors to include
persons designated by the Purchaser constituting the same percentage of each
such committee as the Purchaser's designees are of the Board of Directors. The
Company shall, upon request by the Purchaser, promptly increase the size of the
Board of Directors or exercise its best efforts to secure the resignations of
such number of directors as is necessary to enable the Purchaser designees to be
elected to the Board of Directors and shall cause the Purchaser's designee to be
so elected; PROVIDED, HOWEVER, that, in the event that the Purchaser's designees
are appointed or elected to the Board of Directors, until the Effective Time the
Board of Directors shall have at least one director who is a director on the
date of the Merger Agreement and who is neither an officer of the Company nor a
designee, stockholder, affiliate or associate (within the meaning of the Federal
securities laws) of the Purchaser (one or more of such directors, the
"Independent Directors"); PROVIDED FURTHER, that if no Independent Directors
remain, the other directors shall designate one person to fill one of the
vacancies who shall not be either an officer of the Company or a designee,
shareholder, affiliate or associate of the Purchaser, and such person shall be
deemed to be an Independent Director for purposes of the Merger Agreement.
Subject to applicable law, the Company shall take all actions requested by
Parent necessary to effect any such election, including mailing to its
stockholders the Information Statement containing the information required by
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder by the
SEC, and the Company agrees to make such mailing with the mailing of its
Schedule 14D-9.
The Merger Agreement also provides that following the approval of the Merger
Agreement by the stockholders of the Company, any amendment or termination of
the Merger Agreement or waiver of any of the Company's rights thereunder shall
require the concurrence of a majority of the Independent Directors.
DIRECTORS' AND OFFICERS' INDEMNIFICATION. The Merger Agreement provides
that, as of the Effective Time and for six years thereafter (or such later time
as to which the statute of limitations shall have been
21
extended by action of the Surviving Corporation), Purchaser shall, and shall
cause the Surviving Corporation to, indemnify, defend and hold harmless the
present and former officers, directors, employees and agents of the Company and
its Subsidiaries (each an "Indemnified Party") against all losses, claims,
damages or liabilities arising out of actions or omissions occurring on or prior
to the Effective Time (including, without limitation, the transactions
contemplated by the Merger Agreement) to the full extent permitted or required
under Delaware law and by the relevant provisions of the Certificate of
Incorporation and By-laws of the Company (and requires that such provisions
shall be included in the Certificate of Incorporation and By-laws, respectively,
of the Surviving Corporation and shall not be amended to adversely affect such
indemnity for the six year period). Also pursuant to the Merger Agreement, the
Surviving Corporation will purchase a non-cancellable extension of the existing
directors' and officers' liability insurance of the Company covering parties who
are currently covered by such policy for a period of five years after the
Effective Time in respect of acts or omissions occurring prior to the Effective
Time on terms with respect to coverage and amount no less favorable than those
of such policy in effect on the date of the Merger Agreement.
COMPANY OPTIONS. The Merger Agreement provides that, with respect to all
outstanding options (referred to collectively as the "Options" and individually
as an "Option") to purchase Shares, each holder of an Option which is
surrendered by the holder for cancellation shall be entitled to receive from the
Company, immediately prior to the Effective Time, for each Share purchasable
under the vested portion (but not the unvested portion) of an Option issued
under the Company's 1997 Stock Option Plan and for each Share purchasable under
both the vested and unvested portion of an Option issued under the Company's
1994 Stock Option Plan, an amount in cash in cancellation of such Option equal
to the excess, if any, of the Per Share Amount over the per share exercise price
of such Option (or such greater amount as Purchaser shall agree in writing), as
such amount may be reduced by any required withholding in accordance with
applicable income tax laws. The Merger Agreement requires the Company's Board of
Directors to adopt a resolution terminating the Option Plans effective as of the
Effective Date. The receipt by Purchaser of the binding agreements of all
holders of Options agreeing to the cancellation thereof, as of the Effective
Time, is a condition to the consummation of the Offer (see Section 14), and the
Merger Agreement obligates the Company to use its best efforts to obtain such
agreements.
CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The Merger Agreement provides
that the respective obligations of each party to consummate the Merger are
subject to the satisfaction of a number of conditions, including, but not
limited to, (i) the approval of the Merger Agreement, and consent to the Merger,
by the stockholders of the Company (if required), (ii) the expiration of any
waiting period applicable to the consummation of the Merger under the HSR Act,
(iii) the approval of the Irish Minister for Enterprise, Trade and Employment
and (iv) no order to restrain, enjoin or otherwise prevent the consummation of
the Merger Agreement or the Merger shall have been entered by any court or
administrative body and shall then remain effective. The Merger Agreement
further provides that the accuracy of representations and warranties of the
Company, and the performance, in all material respects, of agreements and
covenants of the Company contained in the Merger Agreement, and the absence of
any event which has or may have a material adverse effect on the Company, are
conditions to the obligations of Purchaser and Parent to consummate the Merger,
and that the accuracy of representations and warranties of Purchaser and Parent,
and the performance, in all material respects, of agreements and covenants of
Purchaser and Parent contained in the Merger Agreement, are conditions to the
obligations of the Company to consummate the Merger.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains various
customary representations and warranties of the parties thereto including, but
not limited to, representations by the Company as to corporate organization and
qualification, Subsidiaries, capitalization, authority to enter into the Merger
Agreement, filings with the SEC and other governmental authorities, the absence
of certain changes or events, intellectual property, material contracts,
environmental matters, employee benefit matters, the opinion of the Company's
financial advisor, tax returns, audits, brokers and litigation.
22
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
and canceled, and the Offer and the Merger may be abandoned at any time prior to
the Effective Time:
(a) by mutual consent of Purchaser and the Company;
(b) by any party not in material breach of the Merger Agreement, in the
event that any of the mutual conditions described above in "--Conditions to
the Obligations of Each Party" shall not have been satisfied within the time
contemplated by the Merger Agreement;
(c) by Purchaser if not in material breach of the Merger Agreement, if
any of the conditions of Purchaser described above in "--Conditions to the
Obligations of Each Party" shall not have been satisfied within the time
contemplated by the Merger Agreement, and the condition is not or could not
be satisfied within ten days of notice thereof;
(d) by the Company if not in material breach of the Merger Agreement, if
any of the conditions of the Company described above in "--Conditions to the
Obligations of Each Party" shall not have been satisfied within the time
contemplated by the Merger Agreement, and the condition is not or could not
be satisfied within ten days of notice thereof;
(e) by Purchaser if the Offer shall have expired or been terminated
without any Shares being purchased thereunder by Purchaser and its
subsidiaries as a result of the occurrence of any of the events described in
Section 14 of this Offer to Purchase; and
(f) by the Purchaser if the Board of Directors of the Company shall have
modified or withdrawn its approval of the Merger Agreement or the Merger in
favor of a Superior Proposal.
EXPENSES. The Merger Agreement provides that, if Purchaser terminates the
Merger Agreement in the manner described in clause (f) of "--Termination of
Merger Agreement" above, or in the manner described in clause (e) of
"--Termination of Merger Agreement" above because the failure of any condition
set forth in Section 14 hereof resulted from a willful and intentional breach by
the Company of any provision of the Merger Agreement, then promptly after such
termination, the Company shall pay to Parent $1,250,000 and shall reimburse
Parent for all of its substantiated out of pocket costs and expenses up to
$500,000.
Except as set forth in the above paragraph, all expenses incurred in
connection with the Merger Agreement and the transactions contemplated by the
Merger Agreement will be paid by the party incurring such expenses, whether or
not any transaction contemplated by the Merger Agreement is consummated.
The Merger Agreement states that, from the date thereof through the
consummation of the Offer, Analyze will not issue any stock options under the
Option Plans or any other options, warrants, convertible securities or other
capital stock, and will not accelerate the vesting or otherwise modify the terms
of any option outstanding under the Option Plans.
INDUCEMENT AGREEMENT. Under the Inducement Agreement, certain stockholders
of the Company, holding approximately 48.7% of the Shares outstanding as of
January 19, 1999, have (i) granted Purchaser an irrevocable proxy to vote and
otherwise act with respect to the Shares then owed by such stockholder in favor
of the approval and adoption of the Merger Agreement, the Merger and all the
transactions contemplated by the Merger Agreement and the Inducement Agreement
and any other actions required in furtherance thereof and against any
Acquisition Transaction and any action in furtherance thereof, (ii) granted
Purchaser an irrevocable option to purchase such stockholder's Shares at a price
of $3.24 per Share, under certain circumstances (see Section 10) and (iii)
agreed to tender such stockholder's Shares in the Offer.
EMPLOYMENT AMENDMENTS. The Company has entered into Employment Agreement
Amendments (the "Employment Agreement Amendments"), which, effective upon the
consummation of the acquisition
23
(the "Acquisition") of the Shares of the Company by Purchaser, amend the current
employment agreements (the "Employment Agreements") between the Company and each
of Dr. Dutka, Carl Ravitch, Joel Klein, and Mr. Ritter (each an "Employee" and
collectively, the "Employees"). Pursuant to the Employment Agreement Amendments,
among other things, (i) the duties of the Employees are, in certain cases,
modified for the term of the Employment Agreement Amendments, (ii) the Company
agrees to continue to provide the Employees following the Merger with the same
benefits as enjoyed by them on the date of the Employment Agreement Amendments,
(iii) Mr. Ravitch waives, in connection with the transactions (the
"Transactions") contemplated by the Merger Agreement, any termination rights he
may otherwise be entitled to, and (iv) Mr. Klein agrees that on the date of his
Employment Agreement Amendment and in connection with the Transactions, he does
not have an option to and may not purchase any treasury shares of the Company
and that any provisions allowing him to do so are invalid and ineffective. Under
the terms of the Employment Agreements, the employment terms of both Dr. Dutka
and Mr. Ravitch end March 24, 2002, Mr. Klein's employment term ends April 1,
2002 and Mr. Ritter's employment term ends September, 2002.
In addition, the Company has entered into a new Employment Agreement (the
"Bellows Employment Agreement") with Mr. Bellows which becomes effective upon
consummation of the Acquisition and replaces any prior employment agreements
between Mr. Bellows and the Company. Pursuant to the Bellows Employment
Agreement, Mr. Bellows will perform, for a period through and including March
24, 2002 (automatically extended thereafter for one year terms, unless either
party gives notice) (the "Term"), such consultative and advisory services
involving, among other things, the finances of and prospective mergers and
acquisitions by the Company as will be agreed upon by Mr. Bellows and the Board
of Directors of the Company for compensation consisting of $350,000 per year
(plus $36,000 per year for the costs of maintaining a Connecticut office) and
other reasonable business expenses and the benefits currently being enjoyed by
Mr. Bellows. During the Term, Mr. Bellows can devote the balance of his time to
non-competitive businesses.
SECTION 11. PURPOSE OF THE OFFER; PLANS FOR THE SURVIVING CORPORATION AFTER THE
OFFER AND THE MERGER.
PURPOSE OF THE OFFER. The purpose of the Offer and the Merger is for Parent
to acquire control of, and the entire equity interest in, the Company. The
purpose of the Merger is for Parent to acquire all Shares not purchased pursuant
to the Offer. Upon consummation of the Merger, the Surviving Corporation will
become a wholly-owned subsidiary of Parent. The Offer is being made pursuant to
the Merger Agreement.
PLANS FOR MERGER CONSUMMATION. Under the DGCL, the approval of the Board
and the affirmative vote of the holders of a majority of the outstanding Shares
are required to approve and adopt the Merger Agreement and the transactions
contemplated thereby, including the Merger. The Board has unanimously approved
and adopted the Merger Agreement and the transactions contemplated thereby, and
the only remaining required corporate action of the Company is the approval and
adoption of the Merger Agreement and the transactions contemplated thereby by
the affirmative vote of the holders of a majority of the Shares. Accordingly, if
the Minimum Condition is satisfied, Purchaser will have sufficient voting power
to cause the approval and adoption of the Merger Agreement and the transactions
contemplated thereby without the affirmative vote of any other stockholder.
In the Merger Agreement, the Company has agreed to take all action
necessary, as promptly as practicable after the expiration of the Offer, to
convene a meeting of its stockholders to consider and vote upon the approval of
the Merger Agreement, the Merger and such other matters as may be necessary to
effectuate the transactions contemplated by the Merger Agreement. Parent and
Purchaser have agreed that all Shares owned by them and their subsidiaries will
be voted in favor of the Merger Agreement and the transactions contemplated by
the Merger Agreement at any such meeting.
24
The Merger Agreement provides that if Purchaser purchases Shares sufficient
to constitute a majority of the then outstanding Shares, Purchaser will be
entitled to designate representatives to serve on the Board in proportion to
Purchaser's ownership of Shares following such purchase constituting at least a
majority of the Board. See Section 10. Purchaser expects that such
representation would permit Purchaser to exert control over the conduct of the
Company's business and operations.
The DGCL generally permits a merger of a subsidiary with a parent
corporation which owns at least 90% of the outstanding shares of each class of
the stock of the subsidiary, without a vote of the stockholders of the
subsidiary. However, the Certificate of Incorporation of the Company includes a
provision, Article Eleventh, which effectively will require a meeting of the
Company's shareholders to approve the Merger whether or not Purchaser acquires
90% of the outstanding Shares.
APPRAISAL RIGHTS. No appraisal rights are available in connection with the
Offer. However, if the Merger is consummated, stockholders will have certain
rights under the DGCL to dissent and demand appraisals of, and to receive
payment in cash of the fair value of their Shares. Such rights to dissent, if
the statutory procedures are complied with, could lead to a judicial
determination of the fair value of the Shares, as of the day prior to the date
on which the stockholders' vote was taken approving the Merger (excluding any
element of value arising from the accomplishment or expectation of the Merger),
required to be paid in cash to such dissenting holders for their Shares. In
addition, such dissenting stockholders would be entitled to receive payment of a
fair rate of interest from the date of consummation of the Merger on the amount
determined to be the fair value of their Shares. In determining the fair value
of the Shares, the court is required to take into account all relevant factors.
Accordingly, such determination could be based upon considerations other than,
or in addition to, the market value of the Shares, including, among other
things, asset values and earning capacity. In Weinberger v. UOP, Inc., the
Delaware Supreme Court stated, among other things, that "proof of value by any
techniques or methods which are generally considered acceptable in the financial
community and otherwise admissible in court" should be considered in an
appraisal proceeding. Therefore, the value so determined in any appraisal
proceeding could be the same, more or less than the purchase price per Share in
the Offer or the Merger Consideration.
The SEC has adopted Rule 13e-3 under the Exchange Act, which is applicable
to certain "going private" transactions. Rule 13e-3, if applicable to the Offer
and the Merger, would require, among other things, that certain financial
information concerning the Company and certain information relating to the
fairness of the proposed transactions contemplated by the Merger Agreement and
the consideration offered to minority stockholders in such transaction be filed
with the SEC and disclosed to stockholders prior to consummation of such
transaction. Purchaser believes that Rule 13e-3 will not be applicable to the
Offer or the Merger.
PLANS FOR THE SURVIVING CORPORATION. It is expected that, initially
following the Merger, the business and operations of the Surviving Corporation
will, except as set forth in this Offer to Purchase, be continued by the
Surviving Corporation substantially as they are currently being conducted.
Parent will continue to evaluate the business and operations of the Company
during the pendency of the Offer and after the consummation of the Offer and the
Merger, and will take such actions as it deems appropriate under the
circumstances then existing. Parent intends to seek additional information about
the Company during this period. Thereafter, Parent intends to review such
information as part of a comprehensive review of the Company's business,
operations, capitalization, Board and management with a view to optimizing
realization of the Company's potential in conjunction with the businesses of
Parent's affiliates. It is expected that the business and operations of the
Surviving Corporation would form an important part of Parent's future business
plans.
Except as indicated in this Offer to Purchase, Parent does not have any
present plans or proposals which relate to or would result in an extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company, a sale or transfer of a material change in the Company's
capitalization or dividend policy or any other material changes in the Company's
corporate structure or business.
25
SECTION 12. DIVIDENDS AND DISTRIBUTIONS.
The Merger Agreement provides that the Company will not, between the date of
the Merger Agreement and the Effective Time, without the prior written consent
of Parent, declare or pay any dividends or other distributions in respect of any
of its capital stock.
SECTION 13. EFFECT OF THE OFFER ON MARKET FOR SHARES; AMERICAN STOCK EXCHANGE
LISTING; REGISTRATION UNDER THE EXCHANGE ACT.
The purchase of Shares by Purchaser pursuant to the Offer will reduce the
number of Shares that might otherwise trade publicly, may reduce the number of
holders of Shares and could thereby adversely affect the liquidity and market
value of the remaining publicly held Shares.
Depending upon the aggregate market value and per share price of any Shares
not purchased pursuant to the Offer, the Shares may no longer meet the standards
for continued inclusion in the Amex, which require, among other things, that an
issuer have at least 200,000 publicly held shares with a market value of $1
million held (in round lots) by at least 300 stockholders. In the event the
Shares were no longer eligible for Amex quotation, quotations might still be
available from other sources. The extent of the public market for the Shares and
availability of such quotations would, however, depend upon the number of
holders of Shares remaining at such time, the interest in maintaining a market
in the Shares on the part of securities firms, the possible termination of
registration under the Exchange Act, as described below, and other factors.
The Shares are currently registered under the Exchange Act. Such
registration may be terminated upon application by the Company to the SEC if the
Shares are not listed on a national securities exchange and there are fewer than
300 record holders. The termination of the registration of the Shares under the
Exchange Act would substantially reduce the information required to be furnished
by the Company to holders of Shares and to the SEC and would make certain
provisions of the Exchange Act, such as the short-swing profit recovery
provisions of Section 16(b), the requirement of furnishing a proxy statement in
connection with stockholders' meetings and the requirements of Rule 13e-3 under
the Exchange Act with respect to "going private" transactions, no longer
applicable to the Shares. In addition, "affiliates" of the Company and persons
holding "restricted securities" of the Company may be deprived of the ability to
dispose of such securities pursuant to Rule 144 promulgated under the Securities
Act. If registration of the Shares under the Exchange Act were terminated, the
Shares would no longer be eligible for Amex reporting. Purchaser currently
intends to seek to cause the Company to terminate the registration of the Shares
under the Exchange Act as soon after consummation of the Offer as the
requirements for termination of registration are met.
SECTION 14. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, Purchaser shall not be
required to accept for payment or pay for any Shares tendered, and may terminate
or amend the Offer (subject to the provisions of the Merger Agreement) and may
postpone the acceptance of, and, subject to Rule 14e-1(c) of the Exchange Act,
payment for, any Shares tendered, (A) unless the following conditions shall have
been satisfied: (i) there shall be validly tendered and not withdrawn prior to
the expiration of the Offer a number of Shares which represents on a fully
diluted basis (including for purposes of such calculation all Shares issuable
upon exercise of all vested stock options and warrants and conversion of
convertible securities or other rights to purchase or acquire shares) at least
51% of the number of shares of Company Common Stock then outstanding (the
"Minimum Condition") and (ii) any applicable waiting period under the HSR Act
shall have expired or been terminated prior to the expiration of the Offer and
any required approval of the Republic of Ireland shall have been obtained or (B)
if at any time after the date of this Agreement and before the time of payment
for any such Shares (whether or not any Shares have
26
theretofore been accepted for payment or paid for pursuant to the Offer) any of
the following conditions exists:
(a) there shall be in effect an injunction or other order, decree,
judgment or ruling by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission of competent
jurisdiction or a statute, rule, regulation, executive order or other action
or proceeding shall have been promulgated, enacted, taken, initiated or
instituted by a government or a governmental authority or a governmental,
regulatory or administrative agency or commission of competent jurisdiction
which in any such case (i) seeks to restrain or prohibit the making or
consummation of the Offer or the consummation of the Merger, (ii) seeks to
prohibit or restrict the ownership or operation by the Purchaser (or any of
its affiliates or subsidiaries) of any material portion of the Company's
business or assets, or seeks to compel the Purchaser (or any of its
affiliates or subsidiaries) to dispose of or hold separate any material
portion of the Company's business or assets, (iii) seeks to impose material
limitations on the ability of the Purchaser effectively to acquire or to
hold or to exercise full rights of ownership of the Shares, including,
without limitation, the right to vote the Shares purchased by the Purchaser
on all matters properly presented to the stockholders of the Company, or
(iv) seeks to impose any material limitations on the ability of the
Purchaser or any of its affiliates or subsidiaries effectively to control in
any material respect the business and operations of the Company; or
(b) the Merger Agreement shall have been terminated by the Company or
the Purchaser in accordance with its terms; or
(c) there shall have occurred and be continuing (i) any general
suspension of, or limitation on prices for, trading in securities on any
national securities exchange or the over-the-counter market, (ii) a
declaration of a banking moratorium or any suspension of payments in respect
of banks in the United States, (iii) any limitation (whether or not
mandatory) by any government or Governmental Authority of the United States
on the extension of credit by banks or other lending institutions or (iv) in
the case of any of the foregoing existing at the time of the execution of
the Merger Agreement, a material acceleration or worsening thereof; or
(d) (i) the Board of Directors or any committee thereof shall have
withdrawn, materially modified or changed in a manner adverse to the
Purchaser or Parent the approval or recommendation of the Offer, the Merger
or the Merger Agreement, or approved or recommended any Acquisition
Transaction or any other acquisition of Shares other than the Offer or the
Merger, or (ii) the Board of Directors or any committee thereof shall have
resolved to do any of the foregoing; or
(e) the representations and warranties of the Company in the Merger
Agreement shall not be true and correct as of the date of the Merger
Agreement or as of the expiration of the Offer except for (i) changes
specifically contemplated by the Merger Agreement and (ii) those
representations and warranties that address matters only as of a particular
date (which shall remain true and correct as of such date) and in each case
except in where failure to be so true and correct would not (in the
aggregate for all representations and warranties of the Company) have a
Material Adverse Effect (other than representations and warranties that are
already so qualified or that are qualified as to the prevention or delay of
the consummation of any of the Transactions or as to the performance by the
Company of its obligations under the Merger Agreement, which in each such
case shall be true and correct as written); or
(f) the Company shall have failed to perform any obligation or to comply
with any agreement or covenant of the Company to be performed or complied
with by it under the Merger Agreement unless all such failures together in
their entirety, would not, individually or in the aggregate, have a Material
Adverse Effect; or
(g) the Company shall not have delivered to the Purchaser binding
agreements signed by the holders of Options representing all of the Shares
issuable upon exercise of all of the outstanding
27
Options (whether or not exercisable) which are vested or unvested under the
Company's 1994 Stock Option Plan or vested under the Company's 1997 Stock
Option Plan, agreeing to the cancellation of the Options of such holders on
the terms described in Section 10 above (it being understood that the
Company additionally shall use reasonable efforts to obtain acknowledgments
from the holders of unvested Options under the Company's 1997 Stock Option
Plan that such Options shall become null as of the Effective Time by the
terms of such Plan); or
(h) the Employment Agreement Amendments shall not have been executed and
delivered by the parties thereto; or
(i) there shall have occurred since September 30, 1998 any event that,
individually or when considered together with any other matter, has had or
is reasonably likely in the future to have a Material Adverse Effect (other
than as set forth in the reports filed by the Company with the SEC prior to
the date hereof or in the disclosure schedules to the Merger Agreement); or
(j) the Purchaser and the Company shall have agreed that the Purchaser
shall amend the Offer to terminate the Offer or postpone the payment for
Shares pursuant thereto.
As used in the Merger Agreement, "Material Adverse Effect" means, with
respect to the Company or the Subsidiaries, any effect that is materially
adverse to the business, operations, properties, assets, liabilities, results of
operations or condition (whether financial or otherwise) of the Company and the
Subsidiaries, taken as a whole.
The foregoing conditions are for the sole benefit of Parent and Purchaser
and may be asserted by Parent or Purchaser regardless of the circumstances
giving rise to any such condition or may be waived by Parent or Purchaser in
whole or in part at any time and from time to time in their sole discretion,
subject in each case to the terms of the Merger Agreement. The failure by Parent
or Purchaser at any time to execute any of the foregoing rights shall not be
deemed a waiver of any such right with respect to particular facts and other
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances; and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
SECTION 15. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS.
GENERAL. Based upon its examination of publicly available information with
respect to the Company and its review of certain information furnished by the
Company to Parent and discussions by representatives of Parent with
representatives of the Company during Parent's investigation of the Company,
Parent is not aware of any license or regulatory permit that appears to be
material to the business of the Company and its subsidiaries, taken as a whole,
that might be adversely affected by Purchaser's acquisition of the Shares
pursuant to the Offer. Except as disclosed herein, Parent is not aware of any
approval or other action by any domestic (federal or state) or foreign
governmental, administrative or regulatory authority or public body that would
be required for the acquisition or ownership of Shares by Purchaser pursuant to
the Offer. Should any such approval or other action be required, it is Parent's
and Purchaser's current intention to seek such approval or action. There is,
however, no current intent to delay acceptance for payment of Shares tendered
pursuant to the Offer pending the outcome of any such matter or the receipt of
any such approval (subject to Purchaser's right to decline to purchase Shares if
any of the conditions in Section 14 shall have occurred). There is no assurance
that any such approval or other action, if needed, would be obtained without
substantial conditions or that adverse consequences might not result to the
business of the Company, Purchaser or Parent or that certain parts of the
business of the Company, Purchaser or Parent might not have to be disposed of or
held separate or other substantial conditions complied with in order to obtain
such approval or other action or in the event that such approvals were not
obtained or such other actions were not taken. Purchaser's obligation under the
Offer to accept the Shares for payment and to pay for such Shares is subject to
certain conditions, including conditions relating to certain legal matters
discussed in this Section 15, which are described in Section 14.
28
ANTITRUST. Under the HSR Act and the rules that have been promulgated
thereunder by the FTC, certain acquisition transactions contemplated by the
Merger Agreement may not be consummated unless certain information has been
furnished to the Antitrust Division and the FTC and certain waiting period
requirements have been satisfied. The acquisition of Shares pursuant to the
Offer is subject to such requirements. See Section 14.
United expects to file by January 29, 1999 a Premerger Notification and
Report Form under the HSR Act with respect to the purchase of Shares pursuant to
the Offer with the Antitrust Division and the FTC. Under the provisions of the
HSR Act applicable to the Offer, the purchase of Shares pursuant to the Offer
may not be consummated until the expiration of a 15-calendar day waiting period
following the filing by Parent. Accordingly, it is anticipated that the waiting
period with respect to the Offer under the HSR Act will expire at 11:59 p.m. New
York City time, by not later than February 13, 1999, unless early termination of
the waiting period is granted. In addition, the Antitrust Division or the FTC
may extend such waiting periods by requesting additional information or
documentary material from Parent prior to the expiration of the waiting period.
If such a request is made with respect to the Offer by either the Antitrust
Division or the FTC, the waiting period related to the Offer will expire at
11:59 p.m. New York City time on the tenth calendar day after substantial
compliance by Parent with such request. Thereafter, the waiting period could be
extended only by court order. With respect to each acquisition, the Antitrust
Division or the FTC may issue only one request for additional information. In
practice, complying with a request for additional information or material can
take a significant amount of time. In addition, if the Antitrust Division or the
FTC raises substantive issues in connection with a proposed transactions
contemplated by the Merger Agreement, the parties may engage in negotiations
with the relevant governmental agency concerning possible means of addressing
those issues and may agree to delay consummation of the transactions
contemplated by the Merger Agreement while such negotiations continue.
Expiration or termination of applicable waiting periods under the HSR Act is a
condition to Purchaser's obligation to accept for payment and pay for Shares
tendered pursuant to the Offer.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed purchase of the Shares
by Purchaser pursuant to the Offer. At any time before or after such purchase,
the Antitrust Division or the FTC could take such action under the antitrust
laws as it deems necessary or desirable in the public interest, including
seeking to enjoin the purchase of Shares pursuant to the Offer by Purchaser or
seeking divestiture of the Shares so acquired or divestiture of substantial
assets of Parent, the Company or their respective subsidiaries. Litigation
seeking similar relief could be brought by private parties.
Based upon an examination of information available to Parent relating to the
business in which Parent, the Company and their respective subsidiaries are
engaged, Parent and Purchaser believe that the Offer and the other transactions
contemplated by the Merger Agreement will not violate the antitrust laws and
that such transactions will lead to increased competition. However, there is no
assurance that a challenge to the Offer and the other transactions contemplated
by the Merger Agreement on such grounds will not be made, or if such a challenge
is made, what the result will be. See Section 14 for certain conditions to the
purchase of the Shares, including conditions with respect to litigation and
certain governmental actions.
The parties expect to file on January 26, 1999, a notification with the
Minister for Enterprise, Trade and Employment under the Irish Mergers and
Take-Overs (Control) Acts, 1978 to 1996 (the "Irish Merger Act"). This is
because under Irish law the Minister may require a transaction involving at
least one enterprise engaged in the printing and/or publication of one or more
newspapers, to be notified under the Irish Merger Act regardless of the assets
or turnover of the parties concerned. Where the Minister decides that the Irish
Merger Act applies, he will have one month from notification to clear or refer
the merger to the Competition Authority. If the Minister does not state in
writing that he has decided not to prohibit or make conditional the merger in
that time, three months from notification (or the date on which information
requested by the Minister within a month of notification was supplied) must
elapse before an
29
automatic clearance is obtained. If the Minister within one month from
notification refers the proposal to the Competition Authority, the Authority has
at least one month, or any longer period specified by the Minister to report on
its investigation to the Minister. The Minister must publish the report within a
further two months. The Minister may only make an order prohibiting a
transaction or permitting a transaction subject to conditions in cases in which
he has made a reference to the authority. Title to any shares or assets in
Ireland will not pass until a legal clearance has been obtained or confirmation
is received from the Minister that the Irish Merger Act does not apply.
Based upon an examination of the information available to Parent relating to
the business in which Parent, the Company and their respective subsidiaries are
engaged, Parent and Purchaser believe that the Offer and the other transactions
contemplated by the Merger Agreement will not raise competition concerns in
Ireland and that, if the Irish Merger Act applies, clearance from the Minister
should be forthcoming within three to four weeks of the notification being made.
STATE TAKEOVER LAWS. The Company is incorporated under the laws of the
State of Delaware. In general, Section 203 of the DGCL prevents an "interested
stockholder" (generally a person who owns or has the right to acquire 15% or
more of a corporation's outstanding voting stock, or an affiliate or associate
thereof) from engaging in a "business combination" (defined to include mergers
and certain other transactions) with a Delaware corporation for a period of
three years following the time such person became an interested stockholder
unless, among other things, prior to such time the board of directors of the
corporation approved either the business combination or the transaction in which
the interested stockholder became an interested stockholder. On January 19,
1999, prior to the execution of the Merger Agreement and the Inducement
Agreement, the Board, by unanimous vote of all directors at a meeting held on
such date, approved the Merger Agreement, the Inducement Agreement, the Merger,
the Offer and the other transactions contemplated by the Merger Agreement,
including the Inducement Agreement, and exempted Parent and Purchaser from the
application of Section 203 in connection therewith. Accordingly, Section 203 is
inapplicable to the Offer and the Merger and the transactions contemplated by
the Merger Agreement.
A number of other states have adopted laws and regulations applicable to
attempts to acquire securities of corporations which are incorporated, or have
substantial assets, stockholders, principal executive offices or principal
places of business, or whose business operations otherwise have substantial
economic effects, in such states. In Edgar v. Mite Corp., the Supreme Court of
the United States invalidated on constitutional grounds the Illinois Business
Takeover Statute, an anti-takeover statute, which, as a matter of state
securities law, made takeovers of corporations meeting certain requirements more
difficult. However, in 1987, in CTS Corp. v. Dynamics Corp. of America, the
Supreme Court held that the State of Indiana may, as a matter of corporate law
and, in particular, with respect to those aspects of corporate law concerning
corporate governance, constitutionally disqualify a potential acquiror from
voting on the affairs of a target corporation without the prior approval of the
remaining stockholders. The state law before the Supreme Court was a shareholder
rights statute that was, by its terms, applicable only to corporations that had
a substantial number of stockholders in the state and were incorporated there.
The Company, directly or through subsidiaries, conducts business in a number
of states throughout the United States, some of which have enacted takeover
laws. Purchaser does not know whether any of these laws will, by their terms,
apply to the Offer or the Merger and has not complied with any such laws. Should
any person seek to apply any state takeover law, the Purchaser will take such
action as then appears desirable, which may include challenging the validity or
applicability of any such statute in appropriate court proceedings. In the event
it is asserted that one or more state takeover laws is applicable to the Offer
or the Merger, and an appropriate court does not determine that it is
inapplicable or invalid as applied to the Offer, Purchaser might be required to
file certain information with, or receive approvals from, the relevant state
authorities. In addition, if enjoined, Purchaser might be unable to accept for
payment any Shares tendered pursuant to the Offer, or be delayed in continuing
or consummating the Offer and the
30
Merger. In such case, Purchaser may not be obligated to accept for payment any
Shares tendered. See Section 14.
SECTION 16. FEES AND EXPENSES.
Except as set forth below, neither Parent nor Purchaser will pay any fees or
commissions to any broker, dealer or other person for soliciting tenders of
Shares pursuant to the Offer.
Allen has provided certain financial advisory services in connection with
the acquisition of the Company, and for those services has received $100,000 and
additionally will be entitled to receive approximately $440,000 upon the closing
of the Merger. Parent has also agreed to reimburse Allen for all reasonable
out-of-pocket expenses incurred by Allen, including the reasonable fees and
expenses of legal counsel, and to indemnify Allen against certain liabilities
and expenses in connection with its engagement, including certain liabilities
under the federal securities laws.
Purchaser has retained D.F. King & Co., Inc. as the Information Agent, and
United States Trust Company of New York as the Depositary, in connection with
the Offer. The Information Agent may contact holders of Shares by mail,
telephone, telex, telecopy, telegraph and personal interview and may request
banks, brokers, dealers and other nominee stockholders to forward materials
relating to the Offer to beneficial owners.
As compensation for acting as Information Agent in connection with the
Offer, D.F. King & Co., Inc. will be paid a fee of $10,000 and will also be
reimbursed for certain out-of-pocket expenses and may be indemnified against
certain liabilities and expenses in connection with the Offer, including certain
liabilities under the federal securities laws. Purchaser will pay the Depositary
reasonable and customary compensation for its services in connection with the
Offer, plus reimbursement for out-of-pocket expenses, and will indemnify the
Depositary against certain liabilities and expenses in connection therewith,
including under federal securities laws. Brokers, dealers, commercial banks and
trust companies will be reimbursed by Purchaser for customary handling and
mailing expenses incurred by them in forwarding material to their customers.
SECTION 17. MISCELLANEOUS.
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of Shares pursuant thereto, Purchaser will
make a good faith effort to comply with such state statute. If, after such good
faith effort, Purchaser cannot comply with such state statute, the Offer will
not be made to (nor will tenders be accepted from or on behalf of) the holders
of Shares in such state.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of Purchaser by one or more registered broker-dealers licensed
under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER NOT CONTAINED IN THIS OFFER OR IN THE
LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Pursuant to Rule 14d-3 of the General Rules and Regulations under the
Exchange Act, Parent and Purchaser have filed with the SEC a Schedule 14D-1 and
13D, together with exhibits, furnishing certain additional information with
respect to the Offer. The Schedule 14D-1 and 13D and any amendments thereto,
including exhibits, may be inspected at, and copies may be obtained from, the
same places and in the same manner as set forth in Section 7 (except that they
will not be available at the regional offices of the SEC).
31
UNITED INFORMATION ACQUISITION CORP.
JANUARY 26, 1999
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The following table sets
forth the name, current business address, citizenship, and present principal
occupation or employment, and material occupations and positions, offices or
employments and business addresses thereof for the past five years, of each
member of the Board of Directors and each executive officer of Parent. Unless
otherwise indicated, each such person (i) has held his principal occupation for
the past five years, (ii) has as his or its current business address, Ludgate
House, 245 Blackfriars Road, London SE1 9UY, England, and (iii) has not been
convicted in a criminal proceeding and has not been party to a proceeding
related to U.S. state and federal securities laws.
The directors and executive officers of Parent are:
[Enlarge/Download Table]
CITIZENSHIP OR PRESENT PRINCIPAL OCCUPATION
PLACE OF OR EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS INCORPORATION FIVE-YEAR EMPLOYMENT HISTORY
--------------------------------------------- -------------------- --------------------------------------------
James Rose................................... United States Chief Executive Officer, United Information
Group Limited, since July 1998. Chief
Executive Officer, Blackwell Information
Services division of B.H. Blackwell Ltd.,
December 1996-July 1998. Managing Director,
A.C. Nielsen, Inc., 1990-December 1996.
Charles R. Stern............................. British Finance Director, United News & Media plc,
since 1992.
David C. Bender.............................. United States President and Chief Operating Officer,
Mediamark Research, Inc. Mediamark Research Inc., since 1990.
708 Third Avenue
8th Floor
New York, NY 10017
Richard M. Block............................. United States Executive Vice President and Chief Financial
2 World Trade Center Officer, United News & Media, since April
Suite 5550 1996. Vice President - Director of Taxation,
New York, NY 10048 MAI North America, Inc., 1985 - April 1996.
Anne W. Gurnsey.............................. United States Corporate Counsel and Secretary, United News
2 World Trade Center & Media, since April 1996. Corporate
Suite 5550 Secretary, MAI North America, Inc., 1990 -
New York, NY 10048 April 1996.
2. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER. The following table sets
forth the name, current business address, citizenship, and present principal
occupation or employment, and material occupations positions, offices or
employments and business addresses thereof for the past five years, of each
member of the Board of Directors and each executive officer of Purchaser. Unless
otherwise indicated, each such person (i) has held his or her principal
occupation for the past five years, has as his or
32
her current business address, 2 World Trade Center, Suite 5550, New York, New
York 10048, and (ii) has not been convicted in a criminal proceeding and has not
been party to a proceeding related to state and federal securities laws.
[Enlarge/Download Table]
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
--------------------------------------------- --------------- -------------------------------------------------
Richard M. Block............................. United States Executive Vice President and Chief Financial
Officer, United News & Media, since April 1996.
Vice President - Director of Taxation, MAI North
America, Inc., 1985 - April 1996.
Anne W. Gurnsey.............................. United States Corporate Counsel and Secretary, United News &
Media, since April 1996. Corporate Secretary, MAI
North America, Inc., 1990 - April 1996.
3. DIRECTORS AND EXECUTIVE OFFICERS OF UNITED. The following table sets
forth the name, current business address, citizenship, and present principal
occupation or employment, and material occupations and positions, offices or
employments and business addresses thereof for the past five years, of each
member of the Board of Directors and executive officer of United. Unless
otherwise indicated, each such person (i) has held his principal occupation for
the past five years, (ii) has as his current business address Ludgate House, 245
Blackfriars Road, London SE1 9UY England, and (iii) has not been convicted in a
criminal proceeding and has not been party to a proceeding related to U.S. state
and federal securities laws.
[Enlarge/Download Table]
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
--------------------------------------------- --------------- -------------------------------------------------
Lord Stevens of Ludgate...................... British Chairman since 1981.
Sir James McKinnon........................... British Deputy Chairman and Non-Executive Director since
Huxley House, April 1996. Chairman, MAI plc, 1992 - April 1996.
28 Copsem Lane,
Esher, Surrey KT10 9HE
Clive Hollick................................ British Group Chief Executive since April 1996. Group
Managing Director, MAI plc, 1974 - February 1997.
Charles Stern................................ British Finance Director since 1992.
Charles Gregson.............................. British Executive Director since April 1996. Director,
MAI plc, since 1984.
Nigel Donaldson.............................. British Executive Director since 1991.
Roger Laughton............................... British Executive Director since April 1996. Chief
Executive Officer, MAI Broadcasting, 1990 - April
1996.
33
[Enlarge/Download Table]
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT POSITION AND
NAME AND BUSINESS ADDRESS CITIZENSHIP FIVE-YEAR EMPLOYMENT HISTORY
--------------------------------------------- --------------- -------------------------------------------------
Tony Tillin.................................. British Executive Director since March 1998 and Chief
Blenheim House, Executive of Miller Freeman subsidiary since
630 Chiswick High Road, August 1997. Senior executive, EMAP Group, May
London W4 5BG 1996 -August 1997. Senior executive, Reed
International, 1989 - December 1994.
Christopher Powell........................... British Non-Executive Director since April 1996. Chief
12 Bishops Bridge Road Executive, BMP DDB, since 1984.
London W2 6AA
Geoffrey Unwin............................... British Non-Executive Director since April 1996. Chief
Cap Gemini House, Executive Officer, Cap Gemini Group, since 1992.
130 Shaftsbury Avenue
London W1V 8HH
John Botts................................... United States Non-Executive Director since July 1997. Chairman,
Lintas House, Botts & Company Limited, since August 1988.
15-19 New Fetter Lane
London EC4A 1BA
Fields Wicker-Miurin......................... United States Non-Executive Director since March 1998. Director
Lansdowne House of finance and strategy, London Stock Exchange,
Berkeley Square September 1994 - December 1997. Partner, Mercer
London W1X 5DH Management Consulting, 1989 - September 1994.
Partner, A.T. Kearney, since August 1998.
Anne Claire Siddell.......................... British Company Secretary since June 1997. Company
Secretary and Group Legal Director House of
Fraser plc, December 1993 - May 1997.
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Facsimile copies of the Letter of Transmittal will be accepted. The Letter
of Transmittal and the Share Certificates should be sent by each stockholder of
the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary at one of the following addresses:
THE DEPOSITARY FOR THE OFFER IS:
UNITED STATES TRUST COMPANY OF NEW YORK
[Download Table]
BY REGISTERED OR CERTIFIED MAIL: BY HAND BEFORE 4:30 P.M.:
The United States Trust Company The United States Trust Company
of New York of New York
P.O. Box 843 Cooper Station 111 Broadway
New York, New York 10276 New York, New York 10006
Attention: Corporate Trust Services Attention: Lower Level Corporate Trust Window
BY OVERNIGHT COURIER AND BY FACSIMILE TRANSMISSION:
BY HAND AFTER 4:30 P.M. (212) 780-0592
ON EXPIRATION DATE ONLY: Attention: Customer Service
The United States Trust Company CONFIRM BY TELEPHONE TO:
of New York (800) 548-6565
770 Broadway, 13th Floor
New York, New York 10003
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number listed below. Additional copies of the
Offer to Purchase and the Letter of Transmittal and other tender offer materials
may be obtained from the Information Agent as set forth below and will be
furnished promptly at Purchaser's expense. You may also contact your broker,
dealer, commercial bank, or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, NY 10005-4495
Telephone: (800) 488-8075
38
Dates Referenced Herein and Documents Incorporated by Reference
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