UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
SCHEDULE
TO
(RULE
14d-100)
Tender
Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1) of the Securities
Exchange Act of 1934
____________________
LOJACK
CORPORATION
(Name
of Subject Company)
____________________
LEXUS ACQUISITION SUB,
INC.
(Offeror)
CALAMP
CORP.
(Parent of
Offeror)
(Names of Filing Persons)
COMMON STOCK, $0.01 PAR
VALUE PER SHARE
(Title of
Class of Securities)
539451104
(CUSIP
Number of Class of Securities)
Stephen M.
Moran
Vice President and General Counsel
CalAmp Corp.
1401 N. Rice
Avenue
Oxnard, California 93030
(805) 987-9000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing
Persons)
____________________
Copy to:
Peter W.
Wardle
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California
90071
(213) 229-7900
CALCULATION OF FILING FEE
Transaction Valuation* |
Amount of Filing Fee** |
$125,319,945.45 |
$12,619.72 |
* |
Estimated for purposes
of calculating the filing fee only. The transaction value was calculated
by adding (i) 18,969,614 shares of common stock, par value $0.01 per share
("Shares"), of LoJack Corporation ("LoJack") issued and outstanding as of
January 29, 2016 multiplied by the offer price of $6.45 per share (the
"Offer Price"); (ii) 714,289 Shares underlying LoJack restricted stock
awards as of January 29, 2016, which will accelerate and become fully
vested in connection with the transaction, multiplied by the Offer Price;
(iii) 1,447,866 Shares subject to issuance pursuant to LoJack options as
of January 29, 2016, multiplied by the Offer Price less the weighted
average exercise price for such options of $3.85; and (iv) 12,010 Shares subject to issuance pursuant to LoJack
restricted stock units as of January 29, 2016, multiplied by the Offer
Price; and subtracting an amount equal to (a) 850,100 Shares beneficially
owned as of the date of this document by Parent of Offeror, Offeror and
its subsidiaries, multiplied by (b) the Offer Price. The calculation of
the filing fee is based on information provided by LoJack as of January
29, 2016. |
** |
The amount of the filing fee is calculated
in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as
amended, by multiplying the transaction valuation by
.0001007. |
[
] |
Check box if any part of the fee
is offset as provided by Rule 0-11(a)(2) and identify the filing with
which the offsetting fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and the date of
its filing. |
Amount Previously
Paid: |
Not
applicable. |
Filing
Party: |
Not
applicable. |
Form
or Registration No.: |
Not
applicable. |
Date
Filed: |
Not
applicable. |
[
] |
Check the box if the filing
relates solely to preliminary communications made before the commencement
of a tender offer. |
Check the appropriate boxes
below to designate any transactions to which the statement relates:
[x] |
third-party tender offer subject to Rule 14d-1. |
[
] |
issuer tender offer subject to Rule 13e-4. |
[
] |
going-private transaction subject to Rule 13e-3. |
[
] |
amendment to Schedule 13D under Rule
13d-2. |
Check the following box if the
filing is a final amendment reporting the results of the tender offer. [ ]
If applicable, check the
appropriate box(es) below to designate the appropriate rule provision(s) relied
upon:
[
] |
Rule
13e-4(i) (Cross-Border Issuer Tender Offer) |
[
] |
Rule
14d-1(d) (Cross-Border Third-Party Tender
Offer) |
This Tender Offer Statement on
Schedule TO is filed by CalAmp Corp., a Delaware corporation (CalAmp), and
Lexus Acquisition Sub, Inc. (Purchaser), a Massachusetts corporation and a
wholly-owned subsidiary of CalAmp. This Schedule TO relates to the offer by
Purchaser to purchase all outstanding shares of common stock, par value $0.01
per share (the Shares), of LoJack Corporation, a Massachusetts corporation
(LoJack), at $6.45 per Share, net to the seller in cash, without interest and
less any applicable withholding taxes, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated February 16, 2016 (the Offer to Purchase), and in the related Letter of Transmittal, copies
of which are attached hereto as Exhibits (a)(1)(A) and (a)(1)(B), respectively
(which, together with any amendments or supplements thereto, collectively
constitute the Offer).
|
Items 1 through 9; Item 11.
|
All information contained in
the Offer to Purchase and the accompanying Letter of Transmittal, including all
schedules thereto, is hereby incorporated herein by reference in response to
Items 1 through 9 and Item 11 in this Schedule TO.
Item 10. Financial
Statements.
Not
applicable.
Item 12. Exhibits.
See Exhibit Index.
Item 13. Information
Required by Schedule 13E-3.
Not applicable.
1
After due inquiry and to the
best of my knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Dated: February 16, 2016
CALAMP CORP. |
|
By: |
/s/ Richard Vitelle |
Name: |
Richard Vitelle |
Title: |
Executive Vice President, Chief Financial
Officer and Secretary |
|
|
|
LEXUS ACQUISITION SUB, INC. |
|
By: |
/s/ Richard Vitelle |
Name: |
Richard Vitelle |
Title: |
Treasurer and
Secretary |
2
Index
No. |
|
(a)(1)(A) |
Offer to Purchase, dated February 16,
2016. |
(a)(1)(B) |
Form
of Letter of Transmittal. |
(a)(1)(C) |
Form
of Notice of Guaranteed Delivery. |
(a)(1)(D) |
Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees. |
(a)(1)(E) |
Form
of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. |
(a)(1)(F) |
Form
of Summary Advertisement, dated February 16,
2016. |
(a)(5)(A) |
Joint Press Release issued by CalAmp Corp. and LoJack Corporation on February 16, 2016. |
(b) |
Not
applicable. |
(d) |
Agreement and Plan of Merger, dated February 1, 2016, by and
among LoJack Corporation, CalAmp Corp. and Lexus Acquisition Sub, Inc. (incorporated by reference to Exhibit
2.1 to the Current Report on Form 8-K filed by CalAmp Corp.
on February 2, 2016). |
(g) |
Not
applicable. |
(h) |
Not
applicable. |
3
Exhibit (a)(1)(A)
Notice of Offer to
Purchase for Cash
All Outstanding Shares of Common Stock
of
LoJack
Corporation
at
$6.45 Net Per Share
by
Lexus Acquisition Sub,
Inc.,
a Wholly-Owned Subsidiary of
CalAmp Corp.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME,
ON MONDAY, MARCH 14, 2016 (ONE MINUTE AFTER 11:59 P.M., EASTERN TIME, ON MONDAY,
MARCH 14, 2016), UNLESS THE OFFER IS EXTENDED. |
The Offer (as defined below)
is being made pursuant to an Agreement and Plan of Merger, dated as of February
1, 2016 (the "Merger
Agreement"), by and among
LoJack Corporation, a Massachusetts corporation (the "Company"), CalAmp Corp., a Delaware corporation ("CalAmp"), and Lexus Acquisition Sub, Inc., a Massachusetts corporation and a
wholly-owned subsidiary of CalAmp ("Purchaser").
Purchaser is offering to
purchase all of the outstanding shares of common stock, par value $0.01 per
share (the "Shares"), of the
Company at $6.45 per Share (the "Offer Price"), net to the seller in cash, without interest
thereon and less any applicable withholding taxes, upon the terms and subject to
the conditions set forth in this Offer to Purchase (this "Offer to Purchase") and the related letter of transmittal that
accompanies this Offer to Purchase (the "Letter of Transmittal" which, together with this Offer to Purchase, as
each may be amended or supplemented from time to time, collectively constitute
the "Offer").
Consummation of the Offer is conditioned
upon, among other things, immediately prior to expiration of the Offer: (i) there being validly tendered and not withdrawn
a number of Shares that, considered together with all other Shares then owned by CalAmp and its subsidiaries
(including Purchaser), represents at least two-thirds (66 ⅔%) of the total number of outstanding Shares on a fully
diluted basis; (ii) the applicable waiting period (or any extension thereof) or approval under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), or other antitrust laws having expired or been terminated or
obtained; and (iii) no governmental body having enacted, issued, promulgated, enforced or entered any law or order that is
then in effect and has the effect of enjoining or otherwise preventing or prohibiting the making of the Offer or
consummation of the Merger. Provided that the conditions set forth above and all other conditions are satisfied or waived,
Purchaser will purchase all Shares validly tendered and not validly withdrawn before the expiration of the Offer.
Consummation of the Offer is not conditioned upon any financing arrangements or subject to a financing condition. On February
12, 2016, the Federal Trade Commission granted early termination of the waiting period under the HSR Act applicable to the
Offer and the Merger. With such early termination, the condition of the Offer relating to the expiration or termination of
the HSR Act waiting period has been satisfied.
Following the purchase by
Purchaser of Shares tendered in the Offer at the Offer Price and, if applicable,
the issuance of Shares pursuant to the Top-Up Option (as defined below) granted
to Purchaser in the Merger Agreement, subject to the satisfaction or waiver of
the conditions to the Merger that are described in "The OfferSection 12The
Merger Agreement." Purchaser will be merged with and into the Company (the
"Merger"), with the Company surviving the Merger as a
direct wholly-owned subsidiary of CalAmp. At the closing of the Merger (the
"Effective
Time"), each issued and
outstanding Share (other than Shares owned by (i) Parent or Purchaser, which
will be cancelled with no consideration; and (ii) any stockholders of the
Company who properly exercise their appraisal rights, if applicable) will be
cancelled and converted into the right to receive an amount equal to the Offer
Price, in cash, without interest (the "Merger Consideration").
____________________
After careful
consideration, the Board of Directors of the Company (the "Company Board") has
unanimously determined that it is in the best interests of the Company and its
stockholders to enter into the Merger Agreement providing for, among other
things, the acquisition of the Company by Parent and, in furtherance thereof,
the Company Board has: (i) determined that the Merger Agreement, the Offer and
the Merger are in the best interests of the stockholders of the Company; (ii)
adopted the Merger Agreement and approved and declared advisable the Offer, the
Merger and the other transactions contemplated by the Merger Agreement, each in
accordance with the requirements of the Massachusetts Business Corporation Act
(the "MBCA"); and (iii)
resolved to recommend acceptance of the Offer and, if necessary, approval of the
Merger Agreement by the stockholders of the Company.
____________________
This transaction has not
been approved or disapproved by the Securities and Exchange Commission
("SEC") or any state
securities commission, nor has the SEC or any state securities
commission passed upon the fairness or merits of this transaction or upon the
accuracy or adequacy of the information contained in this document. Any
representation to the contrary is a criminal offense.
____________________
This Offer to Purchase and
the related Letter of Transmittal contain important information, and you should
carefully read both in their entirety before making a decision with respect to
the Offer.
February 16, 2016
2
IMPORTANT
Any stockholder of the Company
who desires to tender all or a portion of such stockholders Shares in the Offer
should either (i) complete and sign the accompanying Letter of Transmittal in accordance with the instructions in the Letter of
Transmittal, and mail or deliver the Letter of Transmittal together with the
certificates representing tendered Shares and all other required documents to
Computershare Trust Company, N.A., the depositary for the Offer, or tender such
Shares pursuant to the procedure for book-entry transfer set forth in "The
OfferSection 3Procedure for Tendering Shares"; or (ii) request that such
stockholders bank, broker firm, dealer, trust company or other nominee effect
the transaction for such stockholder. Stockholders whose Shares are registered
in the name of a bank, broker firm, dealer, trust company or other nominee must
contact such person if they desire to tender their Shares.
Any stockholder who desires to
tender Shares and whose certificates representing such Shares are not
immediately available, or who cannot comply with the procedures for book-entry
transfer on a timely basis, may tender such Shares pursuant to the guaranteed
delivery procedure set forth in "The OfferSection 3Procedure for Tendering
Shares."
Questions and requests for
assistance may be directed to the Information Agent (as defined in
"Introduction") at the addresses and telephone numbers set forth on the back
cover of this Offer to Purchase. Requests for copies of this Offer to Purchase,
the related Letter of Transmittal, the Notice of Guaranteed Delivery and all
other related materials may be directed to the Information Agent or your bank,
broker firm, dealer, trust company or other nominee, and copies will be
furnished promptly at Purchasers expense. Additionally, this Offer to Purchase,
the related Letter of Transmittal and other materials relating to the Offer may
be found at http://www.sec.gov.
____________________
3
TABLE OF CONTENTS
SUMMARY TERM SHEET |
1 |
INTRODUCTION |
9 |
THE OFFER |
11 |
|
1. |
|
Terms of the Offer |
11 |
|
2. |
|
Acceptance for Payment and Payment for
Shares |
12 |
|
3. |
|
Procedure for Tendering Shares |
13 |
|
4. |
|
Withdrawal Rights |
16 |
|
5. |
|
Certain Material U.S. Federal Income Tax
Consequences |
16 |
|
6. |
|
Price Range of Shares; Dividends |
18 |
|
7. |
|
Possible Effects on the Market for the Shares;
Stock Exchange Listing; Registration Under the Exchange Act; Margin
Regulations |
19 |
|
8. |
|
Certain Information Concerning the
Company |
20 |
|
9. |
|
Certain Information Concerning Purchaser and
CalAmp |
21 |
|
10. |
|
Source and Amount of Funds |
22 |
|
11. |
|
Background of the Offer; Other Transactions
with the Company |
22 |
|
12. |
|
The
Merger Agreement |
28 |
|
13. |
|
Purpose of the Offer; Plans for the Company;
Statutory Requirements; Short Form Merger |
43 |
|
14. |
|
Dividends and Distributions |
45 |
|
15. |
|
Conditions of the Offer |
45 |
|
16. |
|
Certain Legal Matters; Regulatory Approvals;
Appraisal Rights |
46 |
|
17. |
|
Legal Proceedings |
49 |
|
18. |
|
Fees
and Expenses |
49 |
|
19. |
|
Miscellaneous |
49 |
SCHEDULE IDIRECTORS AND EXECUTIVE
OFFICERS OF CALAMP AND PURCHASER |
50 |
i
SUMMARY TERM SHEET
Lexus Acquisition Sub, Inc.
("Purchaser"), a
Massachusetts corporation and a wholly-owned subsidiary of CalAmp Corp., a
Delaware corporation ("CalAmp"), is offering
to purchase all outstanding shares of common stock, par value $0.01 per share
(the "Shares"), of LoJack
Corporation, a Massachusetts corporation (the "Company"), at $6.45 per Share (the "Offer Price"), net to
the seller in cash, without interest and less any applicable withholding taxes,
upon the terms and subject to the conditions set forth in this Offer to Purchase
(this "Offer to
Purchase") and the related
letter of transmittal that accompanies this Offer to Purchase (the
"Letter of
Transmittal" which, together
with this Offer to Purchase, as each may be amended or supplemented from time to
time, collectively constitute the "Offer").
The following are some of the
questions you, as a stockholder of the Company, may have and answers to such
questions. You should carefully read this Offer to Purchase and the accompanying
Letter of Transmittal in their entirety because the information in this summary
term sheet is not complete and additional important information is contained in
the remainder of this Offer to Purchase and in the Letter of Transmittal. CalAmp
and Purchaser have included cross-references in this summary term sheet to other
sections of this Offer to Purchase where you will find more complete
descriptions of the topics mentioned below.
The information concerning the
Company contained herein and elsewhere in this Offer to Purchase has been taken
from or is based upon publicly available documents or records of the Company on
file with the SEC or other public sources at the time of the Offer. CalAmp and
Purchaser have not independently verified the accuracy and completeness of such
information. CalAmp and Purchaser have no knowledge that would indicate that any
statements contained herein relating to the Company taken from or based upon
such documents and records filed with the SEC are untrue or incomplete in any
material respect.
In this Offer to Purchase,
unless the context requires otherwise, the terms "we," "our" and "us" refer to
CalAmp and its subsidiaries including Purchaser, collectively.
Who is offering to buy my
securities?
Purchaser, Lexus Acquisition
Sub., Inc., is a Massachusetts corporation formed for the purpose of making this
Offer to acquire the outstanding Shares of the Company subject to the terms and
conditions set forth herein. Purchaser is a wholly-owned subsidiary of CalAmp.
CalAmp is a leading provider of wireless communications solutions for a broad
array of applications to customers globally. See "The OfferSection 9Certain
Information Concerning Purchaser and CalAmp."
What securities are you
offering to purchase?
We are offering to acquire all
of the outstanding Shares of the Company. We refer to one share of the Companys
common stock as a "share" or "Share." As of January 29,
2016, based on information provided by the Company, there were 19,683,903 Shares issued
and outstanding. See
"Introduction."
Why are you conducting the
Offer?
We are conducting the Offer
because we want to acquire all of the outstanding equity interests of the
Company. If the Offer is successfully completed, we intend to consummate the
Merger as promptly as practicable after consummation of the Offer. Upon
consummation of the Merger, the Company will be the surviving company (the
"Surviving
Company") and will be a
direct wholly-owned subsidiary of the Parent. See "The OfferSection
11Background of the Offer; Other Transactions with the Company" and "The
OfferSection 13Purpose of the Offer; Plans for the Company; Statutory
Requirements; Short Form Merger."
1
Is there an agreement
governing the Offer?
Yes. The Agreement and Plan of
Merger, dated as of February 1, 2016 (the "Merger Agreement"), by and among Parent, Purchaser and the
Company, provides for, among other things, the terms and conditions of the
Offer. See "The OfferSection 12The Merger Agreement."
How much are you offering
to pay for my Shares and what is the form of payment?
We are offering to pay
$6.45 per Share to you, in cash, without interest and
less any applicable withholding taxes. If you are the record owner of your
Shares and you directly tender your Shares to us in the Offer, you will not be
required to pay brokerage fees or similar expenses. If you own your Shares
through a bank, broker firm, dealer, trust company or other nominee, and your
bank, broker firm, dealer, trust company or other nominee tenders your Shares on
your behalf, it may charge you a fee for doing so. You should consult your bank,
broker firm, dealer, trust company or other nominee to determine whether any
charges will apply. See "Introduction."
How long will it take to
complete the Offer?
The timing of our ability to
complete the Offer will depend on, among other things, the number of Shares we
acquire pursuant to the Offer and if and when any necessary approvals or waiting
periods under the laws of the U.S. or any foreign jurisdictions applicable to
the purchase of Shares pursuant to the Offer expire or are terminated or
obtained, as applicable, without any actions or proceedings having been
threatened or commenced by any federal, state or foreign government,
governmental authority or agency seeking to challenge the Offer on antitrust
grounds, as described herein.
Do you have the financial
resources to pay for the Shares?
Yes. We estimate that we will
need approximately $128.7 million to acquire all of the
Shares pursuant to the Offer, to provide funding for the consideration to be
paid in the Merger (including amounts payable in respect of (i) restricted stock
units and (ii) options to purchase Shares converted into a right to receive the
Offer Price in connection with the Offer) and to pay certain fees and expenses
related to the transactions contemplated by the Merger Agreement (such amounts,
in the aggregate, the "Funding
Amount"). The Funding Amount
excludes Shares owned by CalAmp and its subsidiaries.
As of November 30, 2015,
CalAmp and its subsidiaries had cash, cash equivalents and short-term marketable
securities in the aggregate amount of approximately $223 million. CalAmp expects
to obtain the necessary funds from existing cash and marketable securities
balances. The Offer is not conditioned on any financing arrangements or subject
to a financing condition. See "The OfferSection 10Source and Amount of Funds."
Is your financial condition
material to my decision to tender in the Offer?
We do not think that our
financial condition is material to your decision whether to tender Shares and
accept the Offer because:
● |
the Offer is being made
for all outstanding Shares solely for cash; |
● |
the Offer is not subject
to any financing condition; and |
● |
Purchaser, through our
parent company, CalAmp (in light of CalAmps financial capacity in
relation to the amount of consideration payable), will have sufficient
funds available to purchase all Shares validly tendered in the Offer and
not validly withdrawn. |
See "The OfferSection
10Source and Amount of Funds."
2
How long do I have to
decide whether to tender in the Offer?
You will have until 12:00 midnight, Eastern
time, on Monday, March 14, 2016 (one minute after 11:59 P.M., Eastern time, on Monday, March 14, 2016) to tender your Shares
in the Offer, subject to extension of the Offer in accordance with the terms of the Offer and the Merger Agreement, and the
applicable rules and regulations of the SEC. If you cannot deliver everything that is required in order to make a valid
tender by that time, you may be able to use a guaranteed delivery procedure, which is described later in this Offer to
Purchase. See "The OfferSection 3Procedure for Tendering Shares."
What are the most
significant conditions to the Offer?
Consummation of the Offer is
conditioned upon, among other things, immediately prior to expiration of the
Offer: (i) there being validly tendered and not withdrawn a number of Shares
that, considered together with all other Shares then owned by CalAmp and its
subsidiaries (including Purchaser), represents at least two-thirds (66 ⅔%) of the total number of outstanding Shares on a fully diluted basis
(the "Minimum
Condition"); (ii) the
applicable waiting period (or any extension thereof) or approval under the HSR
Act or other antitrust laws having expired or been terminated or obtained; and
(iii) no governmental body having enacted, issued, promulgated, enforced or
entered any law or order that is then in effect and has the effect of enjoining
or otherwise preventing or prohibiting the making of the Offer or consummation
of the Merger. Provided that the conditions set forth above and all other
conditions are satisfied or waived, Purchaser will purchase all Shares validly
tendered and not validly withdrawn before the expiration of the Offer.
Consummation of the Offer is not conditioned upon any financing arrangements or
subject to a financing condition.
CalAmp and Purchaser have
expressly reserved the right to waive any of the Offer Conditions, in their sole
discretion, provided that, without the
consent of the Company, Purchaser cannot: (i) change the form of consideration
payable in the Offer, decrease the Offer Price or the number of Shares subject
to or sought pursuant to the Offer; (ii) extend the Expiration Time, except as
required by the Merger Agreement or applicable law (including for any period
required by any rule, regulation, interpretation or position of the SEC or its
staff); (iii) waive or amend the Minimum Condition; (iv) impose any condition to
the Offer not set forth in the Offer Conditions; or (v) modify, amend or
supplement any of the Offer Conditions or any term of the Offer in a manner
adverse to the holders of the Shares. See "The OfferSection 1Terms of the
Offer."
On February 12, 2016, the Federal Trade
Commission granted early termination of the waiting period under the HSR Act applicable to the Offer and the Merger. With
such early termination, the condition of the Offer relating to the expiration or termination of the HSR Act waiting period
has been satisfied.
Can the Offer be extended
and under what circumstances?
Yes. Under the terms of the
Merger Agreement if, at the initial expiration date of the Offer or upon
expiration of any extension period, any Offer Condition is not satisfied and has
not been waived (if permitted by the Merger Agreement), we must extend the Offer
on one or more occasions in consecutive increments of up to ten business days
each (as determined in good faith by CalAmp and the Company), until the earlier
of (i) the date on which all of the Offer Conditions are satisfied or waived and
(ii) the date on which the Merger Agreement is terminated in accordance with its
terms. See "The OfferSection 1Terms of the Offer."
How will I be notified if
the Offer is extended?
If we decide to extend the
Offer, we will inform Computershare Trust Company, N.A., the depositary for the
Offer (the "Depositary"), of that
fact and will make a public announcement of the extension, no later than 9:00
a.m., Eastern time, on the next business day after the date the Offer was
scheduled to expire. See "The OfferSection 1Terms of the Offer."
3
Will there be a Subsequent
Offering Period?
Maybe. We may, without the
consent of the Company, elect to provide a Subsequent Offering Period in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as
amended (the "Exchange
Act") following our
acceptance for payment of the Shares in the Offer. See "The OfferSection
1Terms of the Offer."
How do I tender my Shares?
To tender Shares, you must
deliver the certificates representing your Shares, together with a completed
Letter of Transmittal and any other required documents, to the Depositary, or
tender such Shares pursuant to the procedure for book-entry transfer set forth
in "The OfferSection 3Procedure for Tendering SharesBook-Entry Transfer", not
later than the time the Offer expires. If your Shares are held in street name by
your bank, broker firm, dealer, trust company or other nominee, such nominee can
tender your Shares through The Depository Trust Company. If you cannot deliver
everything required to make a valid tender to the Depositary before the
expiration of the Offer, you may have a limited amount of additional time by
having a financial institution (including most banks, savings and loan
associations and brokerage houses) that is a member of a recognized Medallion
Program approved by The Securities Transfer Association Inc., including the
Securities Transfer Agents Medallion Program (STAMP), the Stock Exchange
Medallion Program (SEMP) and the New York Stock Exchange Medallion Signature
Program (MSP), guarantee, pursuant to a Notice of Guaranteed Delivery, that the
missing items will be received by the Depositary within three NASDAQ Global
Select Market ("NASDAQ") trading days.
However, the Depositary must receive the missing items within that three trading
day period. See "The OfferSection 3Procedure for Tendering Shares."
Until what time can I
withdraw tendered Shares?
You can withdraw tendered
Shares at any time before the Offer has expired, and, Shares may also be
withdrawn after Saturday, April 16, 2016 unless theretofore
accepted for payment as provided herein. Once we accept Shares for payment, you
will no longer be able to withdraw them. You also may not withdraw Shares
tendered during a Subsequent Offering Period, if one is provided. See "The
OfferSection 4Withdrawal Rights."
How do I withdraw tendered
Shares?
To withdraw tendered Shares,
you must deliver a written notice of withdrawal with the
required information, to the Depositary while you have the right to withdraw the
Shares. See "The OfferSection 4Withdrawal Rights."
When and how will I be paid
for my tendered Shares?
Subject to the terms and
conditions of the Merger Agreement and to the satisfaction or waiver of the
Offer Conditions, Purchaser will promptly pay for all Shares validly tendered
and not withdrawn.
We will pay for your Shares
validly tendered and not withdrawn by depositing the purchase price with the
Depositary, which will act as your agent for the purpose of receiving payments
from us and transmitting such payments to you. In all cases, payment for
tendered Shares will be made only after timely receipt by the Depositary of
certificates for such Shares (or of a confirmation of a book-entry transfer of
such Shares as described in "The OfferSection 3Procedures for Tendering
Shares"), a properly completed, timely received and duly executed Letter of
Transmittal or Agents Message (as defined in "The
OfferSection 3Procedure for Tendering Shares") in lieu of a Letter of
Transmittal and any other required documents for such Shares. See "The
OfferSection 2Acceptance for Payment and Payment of Shares" and "The
OfferSection 15Conditions of the Offer."
4
What is the recommendation
of the Board of Directors of the Company (the "Company Board") with respect to the Offer?
We are conducting the Offer pursuant to the Merger
Agreement, which has been approved by the Company Board. The Company Board has
unanimously determined that it is in the best interests of the Company and its
stockholders to enter into the Merger Agreement providing for, among other
things, the acquisition of the Company by Parent and, in furtherance thereof,
the Company Board has:
● |
determined that the
Merger Agreement, the Offer and the Merger are in the best interests of
the stockholders of the Company; |
● |
adopted the Merger
Agreement and approved and declared advisable the Offer, the Merger and
the other transactions contemplated by the Merger Agreement, each in
accordance with the requirements of the Massachusetts Business Corporation
Act (the "MBCA");
and |
● |
resolved to recommend
acceptance of the Offer and, if necessary, approval of the Merger
Agreement by the stockholders of the Company;
|
in each case subject to the
terms and conditions of the Merger Agreement.
See "Introduction" and "The
OfferSection 11Background of the Offer; Other Transactions with the Company."
The full text of the recommendation and a more complete description of the
Company Boards reasons for approving the Offer and the Merger will be set forth
in the Companys Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule
14-D"), which has been filed
with the SEC and is being mailed to the stockholders of the Company together
with this Offer to Purchase.
Has the Company Board
received a fairness opinion in connection with the Offer and the Merger?
Yes. Pacific Crest Securities
(the "Company Financial
Advisor"), the financial
advisor to the Company Board, has delivered to the Company Board its written
opinion, dated as of February 1, 2016, to the effect that, as of such date and
subject to the assumptions, qualifications and limitations set forth in that
opinion, the Offer Price is fair, from a financial point of view, to the
stockholders of the Company (other than Parent and its Affiliates). The full
text of the Company Financial Advisors written opinion, which describes the
aforementioned assumptions, qualifications and limitations, will be included as
an annex to the Schedule 14D-9. The Companys stockholders are urged to read the
full text of that opinion carefully and in its entirety.
What are the effects of the
Offer and the Merger?
If the Offer is completed and
the Merger takes place, each issued and outstanding Share (other than Shares
owned (i) by CalAmp or Purchaser, which will be cancelled with no consideration,
and (ii) by any stockholders of the Company who properly exercise their
appraisal rights, if applicable) will be cancelled and converted into the right
to receive the Merger Consideration, which is an amount equal to the Offer
Price, in cash, without interest (the "Merger Consideration"). See the "Introduction" and "The OfferSection 12The Merger
Agreement."
The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application of the Company to the SEC if the Shares are neither listed
on a national securities exchange nor held by 300 or more holders of record. Termination of the registration of the Shares
under the Exchange Act would substantially reduce the information required to be furnished by the Company to its stockholders
and to the SEC and would make certain of the provisions of the Exchange Act inapplicable to the Company. Furthermore,
"affiliates" of the Company and persons holding "restricted securities" of the Company may be deprived of, or delayed in,
the ability to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended. We
will terminate the registration of Shares under the Exchange Act as promptly as practicable after the effective time of the
Merger. See "The OfferSection 7Possible Effects on the Market for the Shares; Stock Exchange Listing; Registration Under
the Exchange Act; Margin Regulations."
What is the Top-Up Option
and when could it be exercised?
The Company has granted an
irrevocable top-up option (the "Top-Up Option") to
Purchaser. If the Top-Up Option is exercised, Purchaser will purchase, at a
price per share equal to the greater of (i) the closing price of a Share on
NASDAQ on the last trading day prior to the exercise of the Top-Up Option or
(ii) the Offer Price, the number of newly issued Shares equal to the lowest
number of Shares that, when added to the number of Shares owned by Purchaser at
the time of exercise of the Top-Up Option (after giving effect to the issuance
of the Top-Up Shares but excluding Shares tendered pursuant to guaranteed
delivery procedures that have not yet been delivered in settlement or
satisfaction of such guarantee), will constitute at least 90% of the number of
Shares then outstanding.
5
Based on the Companys representations in the
Merger Agreement relating to capitalization, there will be 15,316,097 Shares available for the Top-Up Option and, therefore,
we must acquire at least 16,183,903 Shares or approximately 82.22% of the number of Shares outstanding in order for there to
be sufficient authorized but unissued Shares for us to exercise the Top-Up Option and acquire at least 90% of the number of
Shares then outstanding. The actual number of Shares that we must acquire in order for there to be sufficient authorized but
unissued Shares for us to exercise the Top-Up Option and acquire at least 90% of the number of Shares then outstanding will
depend upon the actual number of then outstanding Shares at the expiration time of the Offer.
The Top-Up Option is intended
to expedite the timing of the completion of the Merger by permitting us to
effect a "short-form" merger pursuant to the applicable provisions of the MBCA
without a vote of the Companys stockholders at a time when the approval of the
Merger at a meeting of the Companys stockholders would be assured in any case
because of our control of at least two-thirds (66 ⅔%) of
the Shares following completion of the Offer. Although we currently expect to
meet the requirements to purchase Shares pursuant to the Top-Up Option to the extent necessary for this
purpose, there can be no assurance that we will ultimately do so. See "The
OfferSection 12The Merger Agreement."
Will the Offer be followed
by the Merger if all Shares are not tendered in the Offer?
If, as a result of the Offer,
the exercise of the Top-Up Option or otherwise, we directly or indirectly own at
least 90% of the issued and outstanding Shares, we intend to effect the Merger
without prior notice to, or any action by, any other stockholder of the Company,
without vote of the Company Board and in accordance with the terms of the Merger
Agreement, if permitted to do so under the MBCA's "short-form" merger rules.
However, if we are unable to
effect a "short-form" merger pursuant to the MBCA for any reason, the Merger
Agreement also contemplates the filing by the Company of a proxy statement to
solicit proxies of holders of Shares to vote in favor of the approval of the
Merger Agreement at a meeting of the Company's stockholders. Following the
clearance of any such proxy statement by the SEC, the Merger Agreement requires
that the Company call, give notice of and hold a stockholders meeting to adopt
the Merger Agreement, where any such proxies can be voted. See "The
OfferSection 12The Merger Agreement" and "The OfferSection 13Purpose of the
Offer; Plans for the Company; Statutory Requirements; Short Form Merger."
If you do not complete the
Offer, will you nevertheless complete the Merger?
No. None of Purchaser, Parent
or the Company are under any obligation to pursue or consummate the Merger if
the Offer has not been earlier consummated.
If the conditions to
consummation of the Offer have been satisfied and Shares are purchased, will the
Company continue as a public company?
If we purchase all the
tendered Shares, it is possible that there may be so few remaining stockholders
and publicly held Shares that the Shares will no longer be eligible to be traded
on a securities exchange, that there may not be an active or liquid public
trading market for the Shares, and/or that the Company may cease to make filings
with the SEC or otherwise cease to be required to comply with the SEC rules
relating to publicly held companies. In addition, we intend to continue to
pursue the Merger to acquire all outstanding Shares as described above. The
Merger would cause the Shares to be no longer publicly traded. See "The
OfferSection 7Possible Effects on the Market for the Shares; Stock Exchange
Listing; Registration Under the Exchange Act; Margin Regulations."
6
If I decide not to tender,
how will the completion of the Merger affect my Shares?
If we accept Shares for
payment pursuant to the Offer, but you do not tender your Shares in the Offer,
and the Merger takes place, your Shares will be cancelled and converted into the
right to receive the same amount of cash that you would have received had you
tendered your Shares in the Offer, without interest and subject to deduction for
any applicable withholding taxes. Therefore, if the Merger takes place, the
difference to you between tendering your Shares and not tendering your Shares is
that you may be paid earlier if you tender your Shares. See "The OfferSection
12The Merger Agreement" and "The OfferSection 7Possible Effects on the Market
for the Shares; Stock Exchange Listing; Registration Under the Exchange Act;
Margin Regulations."
Are appraisal rights
available in the Offer?
You do not have appraisal
rights as a result of the Offer.
Moreover, you may not have
appraisal rights if the Merger is consummated following consummation of the
Offer. Section 13.02(a)(1) of the MBCA generally provides that stockholders of a
Massachusetts corporation are entitled to appraisal rights in the event of a
merger, but contains an exception for transactions where cash is the sole
consideration received by the stockholders and certain other conditions are met.
In addition, Section 13.02 of the MBCA has not yet been the subject of judicial
interpretation. In the event of the Merger, any stockholder of the Company
believing it is entitled to appraisal rights and wishing to preserve such rights
should carefully review Part 13 of the MBCA, which set forth the procedures to
be complied with in perfecting any such rights. Failure to strictly comply with
the procedures set forth in Part 13 of the MBCA may result in the loss of any
appraisal rights to which such stockholder otherwise may be entitled. In light
of the complexity of Part 13 of the MBCA, any stockholder of the Company wishing
to pursue appraisal rights with respect to the Merger, if available, should consult their legal
advisors. See "The OfferSection 16Certain Legal Matters; Regulatory Approvals;
Appraisal Rights."
What is the market value of
my Shares as of a recent date?
On February 1, 2016, the last
trading day before public announcement of the execution of the Merger Agreement,
the closing price of the Shares on NASDAQ was $5.36 per share. The Offer Price
of $6.45 per Share represents:
● | an 85.6% premium to the closing price of the Shares on December 9, 2015, the day before CalAmp made public its offer to acquire the Company's shares;
|
● | a 97.9% premium to the trailing average price of the Shares for the 30-day period ended on December 9, 2015; and
|
● | a 103.5% premium to the trailing average price of the Shares for the 90-day period ended on December 9, 2015. |
We advise you to
obtain a recent quotation for the Shares when deciding whether to tender your
Shares in the Offer. See "The OfferSection 6Price Range of Shares; Dividends."
If you successfully
complete the Offer, what will happen to the Company Board?
If Purchaser accepts Shares
for payment, promptly after such time, Purchaser will become entitled to
designate such number of directors, rounded up to the nearest whole number, on
the Company Board (the "Purchaser
Designees"), as will give
Purchaser representation on the Company Board equal to the product of (x) the
total number of members on the Company Board (after giving effect to the
directors elected pursuant to this sentence) multiplied by (y) the percentage
that the number of Shares beneficially owned by CalAmp or Purchaser at such time
(including Shares accepted for payment) bears to the total number of Shares then
outstanding on a fully diluted basis. The Company will also, upon CalAmps
request, to the extent permitted by the applicable requirements of the SEC and
NASDAQ, use commercially reasonable efforts to cause Purchaser Designees to
constitute at least the same percentage (rounded up to the next whole number) as
is on the Company Board of (i) each committee of the Company Board; (ii) each
board of directors (or similar body) of each wholly-owned Subsidiary of the
Company; and (iii) each committee (or similar body) of each such board.
7
Notwithstanding the foregoing,
at least three of the members of the Company Board will, at all times prior to
the Effective Time, be directors of the Company who were directors of the
Company on the date of the Merger Agreement and who qualify as independent
directors for purposes of the continued listing requirements of NASDAQ. See "The
OfferSection 12The Merger Agreement."
What are the material U.S.
federal income tax consequences of participating in the Offer?
The receipt of cash in
exchange for Shares pursuant to the Offer or pursuant to the Merger will be a
taxable transaction for U.S. federal income tax purposes if you are a U.S.
Holder (as defined in "The OfferSection 5Certain Material U.S. Federal Income
Tax Consequences"), and you will generally recognize gain or loss equal to the
difference between your adjusted tax basis in Shares that you tender into the
Offer or exchange in the Merger and the amount of cash you receive for such
Shares. If you are a U.S. Holder and you hold your Shares as a capital asset,
the gain or loss that you recognize will be a capital gain or loss and will be
treated as a long-term capital gain or loss if you have held such Shares for
more than one year. If you are a Non-U.S. Holder (as defined in "The
OfferSection 5Certain Material U.S. Federal Income Tax Consequences"), you
will generally not be subject to U.S. federal income tax on gain recognized on
Shares you tender into the Offer or exchange in the Merger. See "The
OfferSection 5Certain Material U.S. Federal Income Tax Consequences" for a
discussion of certain material U.S. federal income tax consequences of tendering
Shares into the Offer or exchanging Shares in the Merger.
We recommend that you
consult your own tax advisor about the particular tax consequences to you of
tendering your Shares in the Offer or exchanging your Shares in the Merger
(including the application and effect of any state, local or non-U.S. income and
other tax laws).
Who can I talk to if I have
questions about the Offer?
You can call D.F. King &
Co., Inc., the information agent for the Offer, at (212) 269-5550 (collect) or
(866) 828-0221 (toll-free). See the back cover of this Offer to Purchase.
8
To the Stockholders of LoJack
Corporation:
INTRODUCTION
We, Lexus Acquisition Sub,
Inc. ("Purchaser"), a
Massachusetts corporation and a wholly-owned subsidiary of CalAmp Corp., a
Delaware corporation ("CalAmp"), are offering
to purchase all outstanding shares of common stock, par value $0.01 per share
(the "Shares"), of LoJack
Corporation., a Massachusetts corporation (the "Company"), at $6.45 per Share (the "Offer Price"), net to
the seller in cash, without interest and less any required applicable taxes,
upon the terms and subject to the conditions set forth in this Offer to Purchase
(this "Offer to
Purchase") and the related
letter of transmittal that accompanies this Offer to Purchase (the
"Letter of
Transmittal" which, together
with this Offer to Purchase, as each may be amended or supplemented from time to
time, collectively constitute the "Offer").
The Offer is being made
pursuant to an Agreement and Plan of Merger dated as of February 1, 2016 (the
"Merger
Agreement"), by and among
Parent, Purchaser and the Company. The Merger Agreement provides, among other
things, subject to the satisfaction or waiver of each of the applicable
conditions set forth in the Merger Agreement (including the successful
completion of the Offer) and in accordance with the relevant provisions of the
Massachusetts Business Corporation Act (the "MBCA"), that Purchaser will be merged with and into the Company (the
"Merger") with the Company continuing as the surviving
company (the "Surviving
Company") and a wholly-owned
subsidiary of Parent. Pursuant to the Merger Agreement, at the effective time of
the Merger (the "Effective
Time"), each Share
outstanding immediately prior to the Effective Time (other than Shares owned (i)
by CalAmp or Purchaser, which will be cancelled with no consideration, and (ii)
by any stockholders of the Company who properly exercise their appraisal rights,
if applicable) will be cancelled and converted into the right to receive the
Merger Consideration, which is an amount equal to the Offer Price, in cash,
without interest (the "Merger
Consideration"). See "The
OfferSection 12The Merger Agreement."
Consummation of the Offer is
conditioned upon, among other things, immediately prior to expiration of the
Offer: (i) there being validly tendered and not withdrawn a number of Shares
that, considered together with all other Shares then owned by CalAmp and its
subsidiaries (including Purchaser), represents at least two-thirds (66 ⅔%) of the total number of outstanding Shares on a fully diluted basis;
(ii) the applicable waiting period (or any extension thereof) or approval under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), or other antitrust laws having expired or been
terminated or obtained; and (iii) no governmental body having enacted, issued,
promulgated, enforced or entered any law or order that is then in effect and has
the effect of enjoining or otherwise preventing or prohibiting the making of the
Offer or consummation of the Merger. Provided that the conditions set forth
above and all other conditions are satisfied or waived, Purchaser will purchase
all Shares validly tendered and not validly withdrawn before the expiration of
the Offer. Consummation of the Offer is not conditioned upon any financing
arrangements or subject to a financing condition. Based on the Company's
representations in the Merger Agreement relating to capitalization, the Minimum
Condition (as defined in "The OfferSection 15Conditions of the Offer") would
be satisfied if at least 13,122,602 Shares are validly tendered and not withdrawn prior to the Expiration Time. The actual number of Shares that are required to be tendered to satisfy the Minimum Condition will depend upon the actual number of then outstanding Shares at the Expiration Time. See "The OfferSection 15Conditions of the Offer." On February 12, 2016, the Federal Trade Commission (the "FTC") granted early termination of the waiting period under the HSR Act applicable to the Offer and the Merger. With such early termination, the condition of the Offer relating to the expiration or termination of the HSR Act waiting period has been satisfied.
Under the Merger Agreement,
the Company has granted Purchaser an irrevocable top-up option (the
"Top-Up
Option"), which Purchaser may
exercise in certain circumstances following the consummation of the Offer to
purchase additional Shares of newly issued common stock of the Company, such
that following such purchase Purchaser would own at least 90% of the total
Shares that would be outstanding immediately after such issuance. If Purchaser
acquires at least 90% of the issued and outstanding Shares in the Offer
(including pursuant to the Top-Up Option), Purchaser may consummate the Merger
under the MBCA without action by the Company's stockholders. Based on the
Companys representations in the Merger Agreement relating to capitalization,
there will be 15,316,097 Shares available for the Top-Up Option and, therefore, we must acquire at least 16,183,903 Shares or approximately 82.22% of the number of Shares outstanding in order for there to be sufficient authorized but unissued Shares for us to exercise the Top-Up Option and acquire at least 90% of the number of Shares then outstanding. The actual number of Shares that we must acquire in order for there to be sufficient authorized but unissued Shares for us to exercise the Top-Up Option and acquire at least 90% of the number of Shares then outstanding will depend upon the actual number of then outstanding Shares at the expiration time of the Offer. See "The OfferSection 12The Merger Agreement" and "The OfferSection 13Purpose of the Offer; Plans for the Company; Statutory Requirements; Short Form Merger."
9
Consummation of the Offer is
not conditioned upon any financing arrangements or subject to a financing
condition.
After careful
consideration, the Board of Directors of the Company (the
"Company
Board") has unanimously
determined that it is in the best interests of the Company and its stockholders
to enter into the Merger Agreement providing for, among other things, the
acquisition of the Company by Parent and, in furtherance thereof, the Company
Board has: (i) determined that the Merger Agreement, the Offer and the Merger
are in the best interests of the stockholders of the Company; (ii) adopted the
Merger Agreement and approved and declared advisable the Offer, the Merger and
the other transactions contemplated by the Merger Agreement, each in accordance
with the requirements of the Massachusetts Business Corporation Act (the
"MBCA"); and (iii)
resolved to recommend acceptance of the Offer and, if necessary, approval of the
Merger Agreement by the stockholders of the Company. The full text of the recommendation and a more
complete description of the Company Board's reasons for approving the Offer and
the Merger is set forth in the Company's Solicitation/Recommendation Statement
on Schedule 14D-9 (the "Schedule 14D-9") under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which has been filed with the SEC and is being
mailed concurrently with this Offer to Purchase.
On February 1, 2016, Pacific Crest Securities,
a division of KeyBanc Capital Markets Inc. and the financial advisor to the Company Board (the "Company Financial Advisor"),
delivered to the Company Board its opinion that, as of such date, and based upon and subject to the assumptions, limitations
and qualifications contained in its opinion, the consideration to be received by the stockholders of the Company pursuant to
the Merger Agreement is fair, from a financial point of view, to the stockholders of the Company. The full text of the
Company Financial Advisors written opinion, which describes the aforementioned assumptions, qualifications and limitations,
will be included as an annex to the Schedule 14D-9. The Companys stockholders are urged to read the full text of that
opinion carefully and in its entirety.
Stockholders who have Shares
registered in their own names and tender directly to Computershare Trust
Company, N.A., the depositary for the Offer (the "Depositary"), will not have to pay brokerage fees,
commissions or similar expenses. Stockholders with Shares held in street name by
a bank, broker firm, dealer, trust company or other nominee should consult with
their nominee to determine whether such nominee will charge a fee for tendering
Shares on their behalf. Except as set forth in Instruction 6 of the Letter of
Transmittal, stockholders will not be obligated to pay transfer taxes on the
sale of Shares pursuant to the Offer. We will pay all charges and expenses of
the Depositary and D.F. King & Co., Inc. (the "Information Agent") incurred in connection with their services in
such capacities in connection with the Offer. See "The OfferSection 18Fees and
Expenses."
This Offer to Purchase and
the related Letter of Transmittal contain important information, and you should
carefully read both in their entirety before you make a decision with respect to
the Offer.
10
THE OFFER
1. Terms of the Offer.
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) and the Merger
Agreement, we will accept for payment and pay for all Shares validly tendered
prior to the Expiration Time (as defined herein) and not previously validly
withdrawn in accordance with "The OfferSection 15Conditions of the Offer."
"Expiration
Time" means 12:00 midnight, Eastern time, on Monday, March 14, 2016 (one minute after 11:59 P.M., Eastern time, on
Monday, March 14, 2016), unless extended, in which event "Expiration Time" means the time and date at which the
Offer, as so extended, expires.
The Offer is conditioned
upon, among other things, the satisfaction of the Minimum Condition.
The Offer is also subject to
certain other conditions set forth in "The OfferSection 15Conditions of the
Offer." CalAmp and Purchaser have expressly reserved the right to waive any of
the Offer Conditions, in their sole discretion, provided that, without the consent of the Company, Purchaser cannot: (i) change
the form of consideration payable in the Offer, decrease the Offer Price or the
number of Shares subject to or sought pursuant to the Offer; (ii) extend the
Expiration Time, except as required by the Merger Agreement or Applicable Law
(including for any period required by any rule, regulation, interpretation or
position of the Securities and Exchange Commission (the "SEC") or its staff); (iii) waive or amend the Minimum Condition; (iv) impose
any condition to the Offer not set forth in the Offer Conditions; or (v) modify,
amend or supplement any of the Offer Conditions or any term of the Offer in a
manner adverse to the holders of the Shares.
The Merger Agreement provides,
among other things, that if prior to the effective time of the Merger, any
change in the outstanding shares of capital stock of the Company occurs by
reason of any reclassification, recapitalization, stock split (including reverse
stock split) or combination, exchange or readjustment of shares, or any stock
dividend, the Offer Price, the Merger Consideration and any other amounts
payable pursuant to the Offer and the Merger Agreement will be appropriately
adjusted.
In accordance with the terms
of the Offer and the Merger Agreement, and subject to the applicable rules and
regulations of the SEC, we may, and in certain instances are required to, extend
the Offer at any time and from time to time. Under the terms of the Merger
Agreement if, at the initial expiration date of the Offer or upon expiration of
any extension period, any Offer Condition is not satisfied and has not been
waived (if permitted by the Merger Agreement), we must extend the Offer on one
or more occasions in consecutive increments of up to ten business days each (as
determined in good faith by CalAmp and the Company), until the earlier of (i)
the date on which all of the Offer Conditions are satisfied or waived and (ii)
the date on which the Merger Agreement is terminated in accordance with its
terms. Any such extension requires that we give oral or written notice of the
extension to the Depositary and by making a public announcement of the
extension. During any extension, all Shares previously tendered and not validly
withdrawn will remain subject to the Offer and subject to the right of a
tendering stockholder to withdraw Shares. If we make any material change in the
terms of or information concerning the Offer as permitted by the Merger
Agreement or waive a material condition of the Offer, we will extend the Offer,
to the extent required by applicable law, for a period sufficient to allow you
to consider the amended terms of the Offer. In a published release, the SEC has
stated that in its view an offer must remain open for a minimum period of time
following a material change in the terms of such offer. The release states that
an offer should remain open for a minimum of five business days from the date
the material change is first published, sent or given to stockholders, and that
if material changes are made with respect to information that approaches the
significance of price and number of shares tendered for, a minimum of ten
business days may be required to allow adequate dissemination and investor
response.
If we extend the Offer, are
delayed in accepting for payment of or paying for Shares or are unable to accept
for payment or pay for Shares pursuant to the Offer for any reason (subject to
the terms and conditions of the Merger Agreement), then, without prejudice to
our rights under the Offer, the Depositary may retain all Shares tendered on our
behalf, and such Shares may not be withdrawn except to the extent tendering
stockholders are entitled to withdrawal rights as provided in "The OfferSection
4Withdrawal Rights." Our reservation of the right to delay acceptance for
payment of or payment for Shares is subject to applicable law, which requires
that we pay the consideration offered or return the Shares deposited by or on
behalf of stockholders promptly after the termination or withdrawal of the
Offer.
11
Any extension, delay,
termination, waiver or amendment of the Offer will be followed as promptly as
practicable by a public announcement thereof. In the case of an extension of the
Offer, we will make a public announcement of such extension no later than 9:00
a.m., Eastern time, on the next business day after the previously scheduled
Expiration Time. For purposes of the Offer, the term "business day" means any
day, other than Saturday, Sunday or a federal holiday, and consists of the time
period from 12:01 a.m. through 12:00 midnight Eastern time.
After the expiration of the
Offer, we may, in our sole discretion, but are not obligated to, provide a
Subsequent Offering Period of at least three business days to permit additional
tenders of Shares so long as, among other things, (i) the initial offering
period of at least 20 business days has expired; (ii) we immediately accept and
promptly pay for all securities validly tendered during the Offer; (iii) we
announce the results of the Offer, including the approximate number and
percentage of Shares deposited in the Offer, no later than 9:00 a.m., Eastern
time, on the next business day after the Expiration Time and immediately begin
the Subsequent Offering Period; and (iv) we immediately accept and promptly pay
for Shares as they are tendered during the Subsequent Offering Period. A
Subsequent Offering Period would be an additional period of time, following the
expiration of the Offer and the purchase of Shares in the Offer, during which
stockholders may tender Shares not tendered in the Offer. A Subsequent Offering Period, if one is provided, is
not an extension of the Offer, which already will have been completed. We do not
currently intend to provide a Subsequent Offering Period, although we reserve
the right to do so. If we elect to include or extend a Subsequent Offering
Period, we will make a public announcement of such inclusion or extension no
later than 9:00 a.m., Eastern time, on the next business day after the
Expiration Time or date of termination of any prior Subsequent Offering Period.
No withdrawal rights apply
to Shares tendered in any Subsequent Offering Period, and no withdrawal rights
apply during any Subsequent Offering Period with respect to Shares previously
tendered in the Offer and accepted for payment. The price per Share paid in the
Offer of $6.45 per Share will be paid to stockholders tendering Shares in a
Subsequent Offering Period, if one is provided.
The Company's transfer agent,
American Stock Transfer & Trust Company, LLC (the "Transfer Agent"), has provided Purchaser with the Company's
stockholder list and security position listings, including the most recent list
of names, addresses and security positions of non-objecting beneficial owners in
the possession of the Company or the Transfer Agent, for the purpose of
disseminating the Offer to holders of the Shares. This Offer to Purchase, the
related Letter of Transmittal and other relevant materials will be mailed to
record holders of the Shares whose names appear on the Company's stockholder
list and will be furnished, for subsequent transmittal to beneficial owners of
the Shares, 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. The Schedule 14D-9 is being mailed to the
stockholders of the Company together with this Offer to Purchase.
2. Acceptance for Payment and Payment for Shares.
Upon the terms and subject to
the conditions of the Offer (including, if we extend or amend the Offer, the
terms and conditions of any such extension or amendment), we will accept for
payment and pay for all Shares validly tendered before the Expiration Time and
not validly withdrawn promptly after the Expiration Time. We expressly reserve
the right, in our sole discretion, but subject to applicable laws, to delay
acceptance for and thereby delay payment for Shares in order to comply with
applicable laws or if any of the conditions referred to in "The OfferSection
14Conditions of the Offer" have not been satisfied or if any event specified in
such Section has occurred. Subject to any applicable rules and regulations of
the SEC, including Rule 14e-1(c) under the Securities Exchange Act of 1934, as
amended (the "Exchange
Act"), we reserve the right,
in our sole discretion and subject to applicable law, to delay the acceptance
for payment or payment for Shares until satisfaction of all conditions to the
Offer. For a description of our right to terminate the Offer and not accept for
payment or pay for Shares or to delay acceptance for payment or payment for
Shares, see "The OfferSection 14Conditions of the Offer."
12
We will pay for Shares
accepted for payment pursuant to the Offer by depositing the purchase price with
the Depositary, which will act as your agent for the purpose of receiving
payments from us and transmitting such payments to you. In all cases, payment
for Shares accepted for payment pursuant to the Offer will be made only after
timely receipt by the Depositary of (i) certificates for such Shares (or a
confirmation of a book-entry transfer of such Shares into the Depositarys
account at the Book-Entry Transfer Facility (as defined in "The Offer Section
3Procedure for Tendering Shares")), (ii) a properly completed and duly executed
Letter of Transmittal or Agents Message in lieu of a
Letter of Transmittal and (iii) any other required documents. For a description
of the procedure for tendering Shares pursuant to the Offer, see "The
OfferSection 3Procedure for Tendering Shares." Accordingly, payment may be
made to tendering stockholders at different times if delivery of the Shares and
other required documents occurs at different times. Under no circumstances will we pay interest on the
consideration paid for tendered Shares, regardless of any extension of or
amendment to the Offer or any delay in making such payment.
For purposes of the Offer, we
will be deemed to have accepted for payment tendered Shares when, as and if we
give oral or written notice of our acceptance to the Depositary. Upon the terms
and subject to the conditions of the Offer, payment for Shares accepted for
payment pursuant to the Offer will be made by deposit of the Offer Price
therefor with the Depositary, which will act as agent for tendering stockholders
for the purpose of receiving payments from Purchaser and transmitting such
payments to tendering stockholders whose Shares have been accepted for payment.
Upon the deposit of funds with the Depositary for the purpose of making payments
to tendering stockholders, Purchaser's obligation to make such payment will be
satisfied, and tendering stockholders must thereafter look solely to the
Depositary for payments of amounts owed to them by reason of acceptance for
payment of Shares pursuant to the Offer. If, for any reason whatsoever,
acceptance for payment of any Shares tendered pursuant to the Offer is delayed,
or Purchaser is unable to accept for payment Shares tendered pursuant to the
Offer, then, without prejudice to Purchaser's rights under the Offer hereof, the
Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares,
and such Shares may not be validly withdrawn, except to the extent that the
tendering stockholders are entitled to withdrawal rights as described in "The
OfferSection 4Withdrawal Rights" and as otherwise required by Rule 14e-1(c)
under the Exchange Act.
We will pay the same per Share
consideration pursuant to the Offer to all stockholders. The per Share
consideration paid to any stockholder pursuant to the Offer will be the highest
per Share consideration paid to any other stockholder pursuant to the Offer.
If any tendered Shares are not
accepted for payment pursuant to the Offer for any reason, or if certificates
are submitted for more Shares than are tendered, certificates for such
unpurchased or untendered Shares will be returned (or, in the case of Shares
tendered by book-entry transfer, such Shares will be credited to an account
maintained at the Book-Entry Transfer Facility), without expense to you, as
promptly as practicable following the expiration or termination of the Offer.
3. Procedure for Tendering Shares.
Valid Tender of Shares.
In order for you to validly
tender Shares pursuant to the Offer, either (i) the Depositary must receive at
one of its addresses set forth on the back cover of this Offer to Purchase (a) a
properly completed and duly executed Letter of Transmittal or Agents Message (as defined below) in lieu of a Letter of
Transmittal and any other documents required by the Letter of Transmittal and
(b) certificates for the Shares to be tendered or delivery of such Shares
pursuant to the procedures for book-entry transfer described below (and a
confirmation of such delivery including an Agents Message if the tendering
stockholder has not delivered a Letter of Transmittal), in each case by the
Expiration Time, or (ii) the guaranteed delivery procedure described below must
be complied with.
The method of delivery of
Shares, the Letter of Transmittal and all other required documents, including
delivery through the Book-Entry Transfer Facility, is at your sole option and
risk, and delivery of your Shares will be deemed made only when actually
received by the Depositary (including, in the case of a book-entry transfer, by
book-entry confirmation). If certificates for Shares are sent by mail, we
recommend registered mail with return receipt requested, properly insured, in
time to be received on or prior to the Expiration Time.
The valid tender of Shares
pursuant to any one of the procedures described above will constitute your
acceptance of the Offer, as well as your representation and warranty that (i)
you own the Shares being tendered within the meaning of Rule 14e-4 under the
Exchange Act; (ii) the tender of such Shares complies with Rule 14e-4 under the
Exchange Act; (iii) you have the full power and authority to tender, sell,
assign and transfer the Shares tendered, as specified in the Letter of
Transmittal; and (iv) when the same are accepted for payment by Purchaser,
Purchaser will acquire good and unencumbered title thereto, free and clear of
all liens, restrictions, charges and encumbrances and not subject to any adverse
claims.
13
Our acceptance for payment of
Shares tendered by you pursuant to the Offer will constitute a binding agreement
between us with respect to such Shares, upon the terms and subject to the
conditions of the Offer.
Book-Entry Transfer.
The Depositary will establish an
account with respect to the Shares for purposes of the Offer at The Depository
Trust Company (the "Book-Entry
Transfer Facility") after the
date of this Offer to Purchase. Any financial institution that is a participant
in the Book-Entry Transfer Facilitys system may make book-entry transfer of
Shares by causing the Book-Entry Transfer Facility to transfer such Shares into
the Depositarys account in accordance with the Book-Entry Transfer Facilitys
procedures for such transfer. However,
although delivery of Shares may be effected through book-entry transfer, the Letter of Transmittal, properly
completed and duly executed, together with any required signature guarantees or an Agents Message and any other
required documents must, in any case, be transmitted to, and received by, the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase by the Expiration Time, or the guaranteed delivery procedure
described below must be complied with. Delivery of the
Letter of Transmittal and any other required documents to the Book-Entry
Transfer Facility does not constitute delivery to the
Depositary.
The term "Agents Message"
means a message, transmitted by the Book-Entry Transfer Facility to, and
received by, the Depositary and forming a part of a book-entry confirmation
stating 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, and agrees to be bound
by, the terms of the Letter of Transmittal and that we may enforce such
agreement against such participant.
Signature Guarantees.
All signatures on a Letter of
Transmittal must be guaranteed by a financial institution (including most banks,
savings and loan associations and brokerage houses) that is a member of a
recognized Medallion Program approved by The Securities Transfer Association
Inc., including the Securities Transfer Agents Medallion Program (STAMP), the
Stock Exchange Medallion Program (SEMP) and the New York Stock Exchange
Medallion Signature Program (MSP) or any other "eligible guarantor institution"
(as such term is defined in Rule 17Ad-15 under the Exchange Act) (each an
"Eligible Institution"), unless (i) the Letter of Transmittal is signed by the
registered holder of the Shares tendered therewith and such holder has not
completed the box entitled "Special Payment Instructions" on the Letter of
Transmittal or (ii) such Shares are tendered for the account of an Eligible
Institution. See Instructions 1, 5 and 7 of the Letter of Transmittal. If the
certificates for Shares are registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made or certificates
for Shares not tendered or not accepted for payment are to be returned to a
person other than the registered holder of the certificates surrendered, the
tendered certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on the certificates, with the signatures on the
certificates or stock powers guaranteed as aforesaid. See Instructions 1, 5 and
7 of the Letter of Transmittal.
Guaranteed Delivery.
If you wish to tender Shares
pursuant to the Offer and cannot deliver such Shares and all other required
documents to the Depositary by the Expiration Time or cannot complete the
procedure for delivery by book-entry transfer on a timely basis, you may
nevertheless tender such Shares if all of the following conditions are met:
(i) such tender is made by or
through an Eligible Institution;
(ii) a properly completed and
duly executed Notice of Guaranteed Delivery in the form provided by us is
received by the Depositary, as provided below, by the Expiration Time; and
(iii) the certificates for
such Shares (or a confirmation of a book-entry transfer of such Shares into the
Depositarys account at the Book-Entry Transfer Facility), together with a
properly completed and duly executed Letter of Transmittal, any required signature guarantee or an Agents Message and any other
required documents, are received by the Depositary within three NASDAQ trading
days after the date of execution of the Notice of Guaranteed Delivery.
14
The Notice of Guaranteed
Delivery may be delivered or transmitted by 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.
Backup Withholding.
Under U.S. federal income tax
laws, payments in connection with the Offer may be subject to "backup
withholding" unless a tendering holder (1) provides a correct taxpayer
identification number (which, for an individual, is the holders social security
number) and any other required information, or (2) is a corporation or comes
within certain other exempt categories, demonstrates this fact when required,
and otherwise complies with applicable requirements of the backup withholding
rules. A holder that does not provide a correct taxpayer identification number
may be subject to penalties imposed by the Internal Revenue Service (the
"IRS"). To avoid backup withholding of U.S. federal
income tax on payments made pursuant to the Offer, each tendering U.S. Holder
should complete and return the IRS Form W-9 included with the Letter of
Transmittal. Each tendering Non-U.S. Holder should complete and submit IRS Form
W-8BEN (or other applicable IRS Form W-8), which can be obtained from the
Depositary or at http://www.irs.gov. For a more detailed discussion of backup
withholding, see Instruction 8 of the Letter of Transmittal and "The
OfferSection 5Certain Material U.S. Federal Income Tax Consequences."
Appointment of Proxy.
By executing a Letter of Transmittal or, in the case of a book-entry transfer, by
delivery of an Agents Message in lieu of a Letter of Transmittal, you irrevocably appoint our designees as your
attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of
substitution, to the full extent of your rights with respect to the Shares tendered and accepted for payment by us (and
any and all other Shares or other securities issued or issuable in respect of such Shares on or after the date of this
Offer to Purchase). This power-of-attorney and proxy will be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts and applicable federal securities laws. All such powers-of-attorney
and proxies are irrevocable and coupled with an interest in the tendered Shares (and such other Shares and
securities). Such appointment is effective only upon our acceptance for payment of such Shares. Upon such
acceptance for payment, all prior powers-of-attorney, proxies and consents granted by you with respect to such
Shares (and such other Shares and securities) will, without further action, be revoked, and no subsequent powers-of-attorney,
proxies or consents may be given (and, if previously given, will cease to be effective). Our designees will
be empowered to exercise all your voting and other rights with respect to such Shares (and such other Shares and
securities) as they, in their sole discretion, may deem proper at any annual, special or adjourned meeting of the
Company's stockholders, or with respect to any actions by written consent in lieu of any such meeting or otherwise.
We reserve the right to require that, in order for Shares to be deemed validly tendered, immediately upon our
acceptance for payment of such Shares, we or our designee must be able to exercise full voting, consent and other
rights with respect to such Shares (and such other Shares and securities) (including voting at any meeting of
stockholders).
The foregoing proxies are
effective only upon acceptance for payment of Shares pursuant to the Offer. The
Offer does not constitute a solicitation of proxies, absent a purchase of
Shares, for any meeting of the Company's stockholders.
Determination of Validity.
CalAmp will interpret the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto). All questions as to the form of documents and the
validity, form, eligibility (including time of receipt) and acceptance for
payment of any tender of Shares will be determined by us, in our discretion.
We reserve the absolute right to
reject any and all tenders determined by us not to be in proper form or the
acceptance of or payment for which may, in the opinion of our counsel, be
unlawful. We also reserve the right to waive any condition of the Offer to the
extent permitted by applicable law (and subject to the terms and conditions of
the Merger Agreement) or any defect or irregularity in the tender of any Shares
of any particular stockholder, whether or not similar defects or irregularities
are waived in the case of other stockholders. No tender of Shares will be deemed
to have been validly made until all defects and irregularities have been cured
or waived. None of Purchaser, CalAmp or any of their respective affiliates or
assigns, the Depositary, the Information Agent or any other person will be under
any duty to give any notification of any defects or irregularities in tenders or
incur any liability for failure to give any such notification.
15
4. Withdrawal Rights.
Except as otherwise provided in this Section 4, tenders of Shares are irrevocable. You may withdraw
Shares that you have previously tendered pursuant to the Offer pursuant to the procedures set forth below at any
time before the Expiration Time. Thereafter, such tenders are irrevocable, except that they may be withdrawn after
Saturday, April 16, 2016, unless such Shares have been accepted for payment as provided in this Offer to Purchase.
If we extend the Offer, delay acceptance for payment or payment for Shares or are unable to accept for payment or
pay for Shares pursuant to the Offer for any reason (subject to the terms and conditions of the Merger Agreement),
then, without prejudice to our rights under the Offer, the Depositary may, on our behalf, retain all Shares tendered,
and such Shares may not be withdrawn except as otherwise provided in this Section 4.
For your withdrawal to be
effective, a written notice of withdrawal with respect
to the Shares must be timely received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase, and the notice of
withdrawal must specify the name of the person who tendered the Shares to be
withdrawn, the number of Shares to be withdrawn and the name of the registered
holder of Shares, if different from that of the person who tendered such Shares.
If the certificates evidencing Shares to be withdrawn have been delivered to the
Depositary, a signed notice of withdrawal with (except in the case of Shares
tendered by an Eligible Institution) signatures guaranteed by an Eligible
Institution must be submitted before the release of such Shares. In addition,
such notice must specify, in the case of Shares tendered by delivery of
certificates, the name of the registered holder (if different from that of the
tendering stockholder) and the serial numbers shown on the particular
certificates evidencing the Shares to be withdrawn or, in the case of Shares
tendered by book-entry transfer, the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares.
Withdrawals may not be
rescinded, and Shares validly withdrawn will thereafter be deemed not validly
tendered. However, withdrawn Shares may be re-tendered by again following one of
the procedures described in "The OfferSection 3Procedure for Tendering Shares"
at any time before the Expiration Time.
If we provide a Subsequent
Offering Period (as described in more detail in "The OfferSection 1Terms of
the Offer") following the Offer, no withdrawal rights will apply to Shares
tendered in such Subsequent Offering Period and no withdrawal rights will apply
during such Subsequent Offering Period with respect to Shares previously
tendered in the Offer and accepted for payment.
We will determine, in our
discretion, all questions as to the form and validity (including time of
receipt) of any notice of withdrawal, and our determination will be final and
binding. We also reserve the absolute right to waive any defect or irregularity
in the withdrawal of Shares by any stockholder, whether or not similar defects
or irregularities are waived in the case of any stockholder. None of CalAmp,
Purchaser, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defect or irregularity
in any notice of withdrawal or waiver of any such defect or irregularity or
incur any liability for failure to give any such notification.
5. Certain Material U.S. Federal Income Tax Consequences.
The following is a summary of
certain material U.S. federal income tax consequences to holders whose Shares
are tendered and accepted for payment pursuant to this Offer. This summary is
based on current provisions of the Internal Revenue Code of 1986, as amended
(the "Code"), regulations thereunder and administrative and
judicial interpretations thereof, all of which are subject to change, possibly
with retroactive effect, and any such change could affect the accuracy of the
statements and conclusions set forth in this discussion.
This summary is not a
comprehensive description of all U.S. federal income tax considerations that may
be relevant to the Offer. This discussion applies to holders who hold Shares as
capital assets for U.S. federal income tax purposes, and may not apply to Shares
received pursuant to the exercise of employee stock options or otherwise as
compensation or to holders of Shares who are in special tax situations
(including, without limitation, expatriates and certain former citizens of the
United States, "controlled foreign corporations", "passive foreign investment
companies", financial institutions, insurance companies, brokers, dealers or
traders in securities, commodities or currencies, tax-exempt organizations, tax
qualified retirement plans, or persons liable for the alternative minimum tax)
or to persons holding Shares as part of a hedge, straddle or other risk
reduction strategy or as part of a conversion transaction or other integrated
investment or U.S. Holders whose functional currency is not the U.S. dollar.
This discussion does not address any tax consequences arising under state, local
or foreign tax laws or U.S. federal estate or gift tax laws.
16
If a partnership (or other
entity or arrangement treated as a partnership for U.S. federal income tax
purposes) holds Shares, the tax treatment of a partner in the partnership will
generally depend upon the status of the partner and the activities of the
partner and the partnership. Partnerships and partners in such partnerships
should consult their tax advisors with regard to the U.S. federal income tax
consequences of exchanging Shares pursuant to the Offer and selling Shares
pursuant to the Merger.
We recommend that you
consult your own tax advisor about the particular tax consequences to you of
tendering your Shares in the Offer (including the application and effect of any
state, local or non-U.S. income and other tax laws).
U.S. Holders
For purposes of this
discussion, the term "U.S. Holder" means a beneficial owner of Shares that is,
for U.S. federal income tax purposes: (i) an individual who is a citizen or
resident of the United States; (ii) a corporation (or other entity taxable as a
corporation for U.S. federal income tax purposes) created or organized under the
laws of the United States, any state thereof or the District of Columbia; (iii)
an estate, the income of which is subject to U.S. federal income taxation
regardless of its source; or (iv) a trust if (1) a court within the United
States is able to exercise primary supervision over its administration and one
or more U.S. persons have the authority to control all of the substantial
decisions of the trust, or (2) it has a valid election in effect under
applicable Treasury regulations to be treated as a U.S. person.
The receipt of cash by U.S.
Holders for Shares exchanged or sold pursuant to the Offer or pursuant to the
Merger will be a taxable transaction for U.S. federal income tax purposes. In
general, you will recognize a capital gain or loss in an amount equal to the
difference between the amount of cash received and your adjusted basis in the
Shares exchanged or sold pursuant to the Offer or the Merger. Gain or loss will
be determined separately for each block of Shares (that is, Shares acquired at
the same price in a single transaction) exchanged or sold. If you are a
non-corporate U.S. Holder who has held the Shares for more than one year, any
such capital gain will generally be taxed at preferential rates. The
deductibility of capital losses is subject to limitations.
A U.S. Holder of Shares that
is an individual or estate, or a trust that does not fall into a special class
of trusts that is exempt from such tax (the "Medicare tax"), is subject to a
3.8% tax on the lesser of (i) the U.S. Holders "net investment income" (or
"undistributed net investment income" in the case of an estate or trust) for the
relevant taxable year and (ii) the excess of the U.S. Holders modified adjusted
gross income for the taxable year over a certain threshold (which in the case of
individuals is between $125,000 and $250,000, depending on the individuals
circumstances). A U.S. Holders net investment income generally includes its net
gains recognized upon an exchange or sale of Shares pursuant to the Offer or the
Merger, unless such net gains are derived in the ordinary course of the conduct
of a trade or business (other than a trade or business that consists of certain
passive or trading activities). A U.S. Holder of Shares that is an individual,
estate or trust should consult its tax advisor regarding the applicability of
the Medicare tax to gains in respect of the exchange or sale of Shares pursuant
to the Offer and the Merger.
Non-U.S. Holders
For purposes of this
discussion, the term "Non-U. S. Holder" means a beneficial owner of Shares that
is not a U.S. Holder.
In general, a Non-U.S. Holder
who receives cash for Shares exchanged or sold pursuant to the Offer or the
Merger will not be subject to U.S. federal income tax on any gain recognized,
unless:
● |
the gain is effectively
connected with the Non-U.S. Holders conduct of a trade or business in the
United States, and if required by an applicable income tax treaty as a
condition for subjecting such holder to U.S. taxation on a net income
basis, attributable to a permanent establishment maintained by the
Non-U.S. Holder in the United States; |
17
● |
the Non-U.S. Holder is
an individual present in the United States for 183 days or more during the
taxable year of the exchange or sale of Shares pursuant to the Offer or
the Merger, and certain other requirements are met;
or |
● |
the Company is or has
been a United States real property holding corporation for U.S. federal
income tax purposes and the Non-U.S. Holder held, directly or indirectly,
at any time during the five-year period ending on the date of exchange or
sale, more than 5% of Shares and such holder is not eligible for any
treaty exemption. |
"Effectively connected" gains
that are recognized by a corporate Non-U.S. Holder may also, under certain
circumstances, be subject to an additional "branch profits tax" at a 30% rate or
at a lower rate if such holder is eligible for the benefits of an income tax
treaty that provides for a lower rate.
We have made no determination
as to whether the Company is or has been a United States real property holding
corporation during the past five years for U.S. federal income tax purposes.
Information Reporting
and Backup Withholding
Payments made to U.S. Holders
pursuant to the Offer or the Merger generally will be subject to information
reporting and may be subject to backup withholding. To avoid backup withholding,
each U.S. Holder that does not otherwise establish an exemption should complete
and return the IRS Form W-9 included with the Letter of Transmittal, certifying
that such U.S. Holder is a U.S. person, the taxpayer identification number
provided is correct and such U.S. Holder is not subject to backup withholding.
Certain holders (including corporations) generally are not subject to backup
withholding. A Non-U.S. Holder generally will be exempt from information
reporting and backup withholding if it provides the Depositary with a properly
executed IRS Form W-8BEN (or other applicable IRS Form W-8) certifying such
Non-U.S. Holders non-U.S. status or by otherwise establishing an exemption.
Backup withholding is not an
additional tax. Holders may use amounts withheld as a credit against their U.S.
federal income tax liability or may claim a refund of any excess amounts
withheld by timely filing a claim for refund with the IRS. Certain penalties
apply for failure to furnish correct information and for failure to include
reportable payments in income. Each stockholder should consult with his or her
own tax advisor as to his or her qualification for exemption from backup
withholding and the procedure for obtaining such exemption.
6. Price Range of Shares; Dividends.
The Shares are listed and
traded on NASDAQ under the symbol "LOJN." The following table sets forth, for
each of the periods indicated, the high and low reported sales price for the
Shares on NASDAQ, based on published financial sources.
|
High |
|
Low |
Year Ended December 31, 2013 |
|
|
|
|
Quarter Ended March
31, 2013 |
$ |
3.45 |
|
2.63 |
Quarter Ended June
30, 2013 |
$ |
3.74 |
|
2.96 |
Quarter Ended
September 30, 2013 |
$ |
3.54 |
|
2.97 |
Quarter Ended
December 31, 2013 |
$ |
5.10 |
|
3.15 |
|
Year Ended December
31, 2014 |
|
|
|
|
Quarter Ended March
31, 2014 |
$ |
6.85 |
|
3.57 |
Quarter Ended June
30, 2014 |
$ |
6.13 |
|
4.32 |
Quarter Ended
September 30, 2014 |
$ |
6.18 |
|
3.77 |
Quarter Ended
December 31, 2014 |
$ |
3.97 |
|
2.20 |
|
|
|
|
|
Year Ending December 31, 2015 |
|
|
|
|
Quarter Ended March
31, 2015 |
$ |
3.12 |
|
2.03 |
Quarter Ended June
30, 2015 |
$ |
4.43 |
|
2.16 |
Quarter Ended
September 30, 2015 |
$ |
4.20 |
|
2.73 |
Quarter Ending
December 31, 2015 |
$ |
5.76 |
|
2.54 |
|
Year Ending December
31, 2016 |
|
|
|
|
Quarter Ended March
31, 2016 (through February 12, 2016) |
$ |
6.43 |
|
4.54 |
18
According to the Company's
publicly available documents, it has never paid a cash dividend on the Shares.
If we acquire control of the Company, we currently intend that no dividends will
be declared on the Shares prior to the Merger.
On February 1, 2016, the last
trading day before public announcement of the execution of the Merger Agreement,
the closing price of the Shares on NASDAQ was $5.36 per share. The Offer Price
of $6.45 per Share represents:
● |
an 85.6% premium to the closing price of the
Shares on December 9, 2015, the day before CalAmp made public its offer to
acquire the Company's shares; |
|
|
● |
a 97.9% premium to the trailing average
price of the Shares for the 30-day period ended on December 9, 2015; and
|
|
|
● |
a
103.5% premium to the trailing average price of the Shares for the 90-day
period ended on December 9, 2015. |
On February 12, 2016, the last
trading day before the commencement of the Offer, the last reported sale price
of the Shares on NASDAQ was $6.41 per Share. You are urged to obtain current market quotations
for the Shares.
7. Possible Effects on the Market for the Shares; Stock Exchange Listing;
Registration Under the Exchange Act; Margin Regulations.
Possible Effects on the
Market for the Shares. The
purchase of Shares pursuant to the Offer and the Merger (including Shares
purchased pursuant to the exercise, if any, of the Top-Up Option) will result in
all of the equity of the Surviving Company being held by Parent. Therefore,
there will be no public market for the equity of the Surviving Company.
Stock Exchange Listing.
The Shares are listed on NASDAQ.
However, the purchase of Shares pursuant to the Offer and of Shares pursuant to
the subsequent Merger will result in all of the equity of the Surviving Company
being held by Parent. According to NASDAQ's published guidelines, NASDAQ would
consider delisting the Shares if, among other things, (i) the number of total
stockholders of the Company should fall below 400; (ii) the bid price is less
than $1 per share; or (iii) none of the following conditions is met: (A) (1)
stockholders' equity is less than $10 million, (2) there are less than 750,000
publicly held shares or (3) the market value of publicly held shares is less
than $5 million; (B) (1) the market value of the listed securities (as defined
by NASDAQ rules) is less than $50 million, (2) there are less than 1,100,000
publicly held shares or (3) the market value of publicly held shares is less
than $15 million; or (C) (1) total assets and total revenue is less than $50
million each for the most recently completed fiscal year or two of the three
most recently completed fiscal years, (2) there are less than 1,100,000 publicly
held shares or (3) the market value of publicly held shares is less than $15
million. Shares held by officers or directors of the Company or their immediate
families, or by any beneficial owner of 10% or more of the Shares, ordinarily
will not be considered to be publicly-held for this purpose. We will terminate
listing of Shares on NASDAQ as promptly as practicable after the effective time
of the Merger.
Registration Under the
Exchange Act. The Shares are
currently registered under the Exchange Act. Such registration may be terminated
upon application of the Company to the SEC if the Shares are neither listed on a
national securities exchange nor held by 300 or more holders of record.
Termination of the registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by of the Company
to its stockholders and to the SEC and would make certain of the provisions of
the Exchange Act, such as the short-swing profit recovery provisions of Section
16(b), the requirement to furnish a proxy statement pursuant to Section 14(a) in connection
with a stockholders meeting and the related requirement to furnish an annual
report to stockholders and the requirements of Rule 13e-3 under the Exchange Act
with respect to "going private" transactions, no longer applicable to the
Shares. Furthermore, "affiliates" of the Company and persons holding "restricted
securities" of the Company may be deprived of, or delayed in, the ability to
dispose of such securities pursuant to Rule 144 promulgated under the Securities
Act of 1933, as amended. We will terminate the registration of Shares under the
Exchange Act as promptly as practicable after the effective time of the Merger.
19
Margin Regulations.
The Shares are currently "margin
securities" under the regulations of the Board of Governors of the Federal
Reserve System (the "Federal
Reserve Board"), which has
the effect, among other things, of allowing brokers to extend credit on the
collateral of such Shares. If registration of the Shares under the Exchange Act
were terminated, the Shares would no longer constitute "margin securities." We
will terminate the registration of Shares under the Exchange Act as promptly as
practicable after the effective time of the Merger.
8. Certain Information Concerning the Company.
Except as otherwise expressly
set forth in this Offer to Purchase, the information concerning the Company
contained in this Offer to Purchase has been taken from or based upon publicly
available documents and records on file with the SEC and other public sources
and is qualified in its entirety by reference thereto. None of CalAmp,
Purchaser, the Information Agent or the Depositary can take responsibility for
the accuracy or completeness of the information 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 CalAmp, Purchaser, the Information Agent or the Depositary.
CalAmp, Purchaser, the Information Agent and the Depositary have relied upon the
accuracy of the information included in such publicly available documents and
records and other public sources and have not made any independent attempt to
verify the accuracy of such information.
According to the Company's
Annual Report on Form 10-K filed with the SEC on March 16, 2015, the Company was
organized as a Massachusetts corporation in 1978, and the Company's principal
executive office is located at 40 Pequot Way, Canton, Massachusetts, 02021, and
its telephone number is (781) 302-4200. According to the Company 10-Q filed with
the SEC on November 9, 2015, the Company provides after-market safety, security
and protection products and services for tracking and recovering cars, trucks
and other valuable mobile assets, and according to the Company's Annual Report
on Form 10-K filed with the SEC on March 16, 2015, as of February 2015, the
Company had a total of 670 full-time employees.
The Company is subject to the
informational requirements of the Exchange Act and, in accordance therewith,
files periodic reports, proxy statements and other information with the SEC
relating to its business, financial condition and other matters. The Company is
required to disclose in such proxy statements certain information, as of
particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company. Such reports, proxy statements and other information may be
read and copied at the public reference facilities maintained by the SEC at 100
F Street, N.E., Washington, D.C. 20549. Copies of such material can also be
obtained free of charge at the website maintained by the SEC at http://www.sec.gov.
Certain Projections.
In connection with CalAmps
review process prior to finalizing the Merger Agreement, the Company provided
CalAmp certain unaudited prospective financial information prepared by the
Companys management for the Company on a standalone basis based on the
Companys long range plan, without giving effect to the Offer and the Merger
(the Projections). The
Projections were not prepared with a view toward public disclosure and,
accordingly, do not necessarily comply with published guidelines of the SEC or
established by the American Institute of Certified Public Accountants for
preparation and presentation of prospective financial information or generally
accepted accounting principles. The Companys independent registered public
accounting firm, or any other independent accountants, did not compile, examine,
audit, or perform any procedures with respect to the Projections, and has not
expressed any opinion or any other form of assurance on this information or its
achievability.
20
Set forth below are the
material portions of the Projections provided to CalAmp. The inclusion of this
information should not be regarded as an indication that the Companys
management, the Company Board or CalAmp considered, or now
consider, this information to be a reliable prediction of actual future results,
and such data should not be relied upon as such. The Projections neither take
into account any circumstances or events occurring after the date they were
prepared, including the announcement of the Offer and Merger pursuant to the
Merger Agreement, nor do they take into account the effect of any failure to
occur of the Offer or the Merger. The Company has not updated or revised, and
the Company does not intend to update or otherwise revise, the Projections to
reflect circumstances existing since their preparation or to reflect the
occurrence of unanticipated events even in the event that any or all of the
underlying assumptions are shown to be in error.
For a more detailed
description of the underlying assumptions of, limitations on and uncertainties
inherent in the Projections, and for more information on factors that may cause
the future financial results of the Company to materially vary from the
Projections, see Projected Financial Information in the Schedule 14D-9.
The following is a summary of
the Projections (in thousands):
|
|
2016P |
|
2017P |
|
2018P |
Net Revenue |
|
$ |
127,750 |
|
$ |
154,518 |
|
$ |
178,484 |
Gross Profit |
|
|
67,189 |
|
|
77,220 |
|
|
89,226 |
Operating
Expenses |
|
|
63,300 |
|
|
70,121 |
|
|
74,360 |
Operating Income |
|
|
3,889 |
|
|
7,099 |
|
|
14,866 |
Net Income |
|
|
2,403 |
|
|
5,214 |
|
|
12,653 |
EBITDA(1) |
|
|
8,544 |
|
|
12,219 |
|
|
20,498 |
Adjusted EBITDA(2) |
|
|
10,455 |
|
|
14,419 |
|
|
22,998 |
(1) |
EBITDA means net
income plus interest expense, taxes, depreciation and
amortization. |
(2) |
Adjusted EBITDA
excludes the impact of stock-based compensation
expense. |
9. Certain Information Concerning Purchaser and CalAmp.
Purchaser. Purchaser is a Massachusetts corporation and, to
date, has engaged in no activities other than those incident to its formation
and the commencement of the Offer. Purchaser is a wholly-owned subsidiary of
CalAmp. The principal executive offices of Purchaser are located at 1401 N. Rice
Avenue, Oxnard, California 93030 (telephone number (805) 987-9000).
CalAmp. CalAmp is a Delaware corporation and was formed in
1981. CalAmps principal corporate and executive offices are located at 1401 N.
Rice Avenue, Oxnard, California 93030 (telephone number (805) 987-9000). CalAmp
is a leading provider of wireless communications solutions for a broad array of
applications to customers globally. CalAmps business activities are organized
into Wireless DataCom and Satellite business segments. The Wireless DataCom
segment offers solutions to address the markets for Mobile Resource Management (MRM) applications, the broader
Machine-to-Machine (M2M) communications space and other emerging markets that
require connectivity anytime and anywhere. CalAmps Satellite segment develops,
manufactures and sells direct-broadcast satellite (DBS) outdoor customer premise
equipment and whole home video networking devices enabling the delivery of
digital and high definition satellite television services. As of February 28,
2015, CalAmp had approximately 410 employees and approximately 120 contracted
workers.
The principal trading market
for CalAmps common shares is NASDAQ. CalAmp is subject to the informational
requirements of the Exchange Act and in accordance therewith files reports and
other information with the SEC relating to its business, financial condition and
other matters. Such reports and other information are available for inspection
and copying at the offices of the SEC in the same manner as set forth below
under "Available Information."
Additional Information.
The name, business address,
citizenship, present principal occupation and employment history for the past
five years of each of the members of the board of directors and the executive
officers of CalAmp and the members of the board of directors and the executive
officers of Purchaser are set forth in Schedule I to this Offer
to Purchase.
21
None of CalAmp, Purchaser or,
to the knowledge of CalAmp or Purchaser after reasonable inquiry, any of the
persons listed in Schedule
I, has during the last five years
(a) been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (b) been a party to any judicial or administrative
proceeding (except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, U.S.
federal or state securities laws or a finding of any violation of U.S. federal
or state securities laws.
As of the date of this Offer
to Purchase, CalAmp and its subsidiaries own of record 850,100 Shares, representing approximately 4.4% of the outstanding Shares. Except as set forth elsewhere in this Offer to Purchase (including Schedule I) and except for the purchase by CalAmp of 115,619 Shares from December 18, 2015 through December 22, 2015, CalAmp has not engaged in any transaction involving the securities of the Company in the past 60 days.
Available Information.
Pursuant to Rule 14d-3 under the
Exchange Act, we have filed with the SEC a Tender Offer Statement on Schedule TO
(the "Schedule
TO"), of which this Offer to
Purchase forms a part, and exhibits to the Schedule TO. The Schedule TO and the
exhibits thereto, as well as other information filed by Purchaser with the SEC,
are available for inspection at the SECs Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Copies of such information may be
obtainable by mail, upon payment of the SECs customary charges, by writing to
the SEC at 100 F Street, N.E., Washington, D.C. 20549-0213. The SEC also
maintains a website at http://www.sec.gov that contains the Schedule TO and the
exhibits thereto and other information that Purchaser has filed electronically
with the SEC. Additionally, requests for copies of this Offer to Purchase, the
related Letter of Transmittal, the Notice of Guaranteed Delivery and all other
related materials may be directed to the Information Agent or your bank, broker
firm, dealer, trust company or other nominee and copies will be furnished
promptly at Purchasers expense.
10. Source and Amount of Funds.
Purchaser estimates that it
will need approximately $128.7 million to acquire all of the Shares pursuant to
the Offer, to provide funding for the consideration to be paid in the Merger
(including amounts payable in respect of (i) restricted stock units and (ii)
options to purchase Shares converted into a right to receive the Offer Price in
connection with the Offer) and to pay certain fees and expenses related to the
transactions contemplated by the Merger Agreement. This amount excludes Shares
owned by CalAmp and its subsidiaries. As of November 30, 2015, CalAmp and its
subsidiaries had cash, cash equivalents and short-term marketable securities in
the aggregate amount of approximately $223 million. CalAmp expects to obtain the
necessary funds from existing cash and marketable securities balances. The Offer
is not conditioned on any financing arrangements or subject to a financing
condition.
We do not think that our
financial condition is material to your decision whether to tender Shares and
accept the Offer because (i) the Offer is being made for all outstanding Shares
solely for cash; (ii) the Offer is not subject to any financing condition; and
(iii) Purchaser, through our parent company, CalAmp (in light of CalAmps
financial capacity in relation to the amount of consideration payable), will
have sufficient funds available to purchase all Shares validly tendered in the
Offer and not validly withdrawn, including Shares issuable upon acceleration of
restricted stock awards.
11. Background of the Offer; Other Transactions with the Company.
The following is a description
of participation by CalAmp and its representatives (collectively referred to in
"The OfferSection 11Background of the Offer; Other Transactions with the
Company" as "CalAmp") in a process
with the Company that culminated in the execution of the Merger Agreement. For a
review of the Company's activities
relating to that process, including strategic alternatives considered by the
Company, see the Company's Schedule 14D-9, which will be mailed to the
stockholders of the Company together with this Offer to Purchase.
22
On October 20, 2014, Michael
Burdiek, President and Chief Executive Officer of CalAmp, contacted Randy Ortiz,
President and Chief Executive Officer of the Company, and indicated that he
would be sending a non-binding proposal to Mr. Ortiz that would outline the
proposed terms of a strategic transaction between CalAmp and the Company. Thereafter, Mr.
Burdiek, on behalf of CalAmp, sent Mr. Ortiz a written, non-binding proposal to
acquire all of the outstanding shares of the Company at a price of $6.00 per
share in cash with no financing contingency. The proposal was subject to
completion of due diligence, negotiation of a definitive merger agreement and
receipt of board, shareholder and regulatory approvals. The proposal was
accompanied by a form of confidentiality agreement and an exclusivity agreement
providing for exclusive negotiations between the parties for a 45-day period.
The letter requested a formal response from the Company by October 27, 2014.
On October 31, 2014, the
Company provided us with a proposed form of confidentiality agreement that
included a standstill provision. Thereafter, the parties and their respective
counsel negotiated the terms of the confidentiality agreement.
On November 12, 2014, CalAmp
entered into a confidentiality agreement with the Company pursuant to which we
agreed to keep confidential certain non-public information about the Company in
connection with the consideration of a possible negotiated transaction between
the parties. The confidentiality agreement had a two-year term and included a
customary one-year standstill provision.
On November 21, 2014, members
of CalAmps management, including Mr. Burdiek, met with members of the Company's
management, including Mr. Ortiz, at the offices of the Company's outside legal
counsel, Goodwin Procter, LLP ("Goodwin Procter") in
Boston, Massachusetts. At this meeting, the Company's management provided an
overview of the Company, its products and technology, as well as a review of key
financial highlights. The parties did not discuss price or any other terms for a
possible strategic transaction during this meeting.
On December 30, 2014, Rory
Cowan, Chairman of the Company Board, and Mr. Ortiz contacted Mr. Burdiek to
convey the Company Board's rejection of CalAmps October 20th
proposal.
On January 6, 2015, Mr.
Burdiek sent a letter to Mr. Cowan requesting that the Company Board provide an
opportunity for Mr. Burdiek and Bert Moyer, Chairman of the board of directors
of CalAmp (the "CalAmp
Board"), to deliver an
in-person presentation to the Company Board at its next scheduled meeting to
state our case and explain the strategic rationale of our proposal.
On January 13, 2015, Mr. Cowan
sent a letter to Mr. Burdiek responding to his January 6th request
and reiterating the Company Boards position. The letter noted, however, that
the Company would contact CalAmp in the event that the Company Board determined
to consider a potential strategic transaction involving the Company in the
future.
On January 15, 2015, Mr.
Burdiek sent a letter to Mr. Cowan expressing his disappointment in the Company
Boards position. The letter indicated that if the Company was not prepared to
begin a due diligence process within two weeks from the date of the letter, we
would be forced to consider formally withdrawing our October 20th
proposal and would be considering all of our other options.
On January 27, 2015, Mr. Cowan
sent a letter to Mr. Burdiek formally rejecting CalAmps October 20th
proposal and reminding CalAmp of its standstill obligations under the
confidentiality agreement.
On January 28, 2015, Mr.
Burdiek sent a letter to Mr. Cowan formally withdrawing CalAmps October
20th proposal.
On March 25, 2015, Mr. Burdiek
contacted Mr. Ortiz and indicated that he would be sending another non-binding
proposal regarding a potential strategic transaction between CalAmp and the
Company. Thereafter, Mr. Burdiek, on behalf of CalAmp, sent a written,
non-binding proposal to acquire all of the outstanding shares of the Company at
a price of $5.25 per share in cash, with no financing contingency and subject to
similar terms and conditions as the October 20th proposal. The letter
again requested that the parties enter into a 45-day period of exclusive
negotiations. The letter requested a written response by April 14, 2015, and
noted that we reserved our right to make the letter public at a later date in
accordance with the terms of the existing confidentiality agreement between the
parties.
23
On April 14, 2015, Mr. Cowan
sent a letter to Mr. Burdiek formally rejecting CalAmps March 25th
proposal.
On April 15, 2015, Messrs.
Burdiek and Moyer contacted Messrs. Ortiz and Cowan to request a meeting with
the Company Board. Messrs. Ortiz and Cowan declined the request, on the grounds
that the Company Board had decided to pursue the long-range plan of the
Company's management.
On August 7, 2015, Mr. Burdiek
contacted Mr. Ortiz to request a dinner meeting with Mr. Ortiz in Boston,
Massachusetts during the week of August 10, 2015. Mr. Ortiz declined the
request, citing previously scheduled commitments with international visitors
during that week.
On November 10, 2015, Mr.
Burdiek contacted Mr. Ortiz and indicated that he would be sending another
non-binding proposal regarding a potential strategic transaction between CalAmp
and the Company. Thereafter, Mr. Burdiek, on behalf of CalAmp, sent a written,
non-binding proposal to acquire all of the outstanding shares of the Company at
a price of $5.50 per share in cash, with no financing contingency and subject to
similar terms and conditions as were included in CalAmps prior proposals. The
letter again requested that the parties enter into a 45-day period of exclusive
negotiations. The letter requested a written response by November 17, 2015, and
noted that if the Company did not timely engage in substantive discussions
regarding the proposed transaction, we were prepared to proceed promptly with
presenting our case publicly to the Company's stockholders after the standstill
provision in the confidentiality agreement expired.
On November 12, 2015, the
standstill provision included in the confidentiality agreement between CalAmp
and the Company expired.
On November 16, 2015, a
representative from Goodwin Procter contacted a representative of Gibson, Dunn
& Crutcher LLP ("Gibson
Dunn"), outside counsel to
CalAmp, on behalf of the Company and indicated that the Company would be
commencing a formal process to review strategic alternatives for the Company,
including a potential business combination with CalAmp. On the same day, Mr.
Ortiz contacted Mr. Burdiek to deliver the same message.
On November 18, 2015, a
representative from Gibson Dunn contacted Goodwin Procter on behalf of CalAmp
requesting a written confirmation from the Company no later than November 23,
2015 that the Company would enter into exclusive negotiations with CalAmp with
respect to its November 10th proposal. The representative from Gibson
Dunn indicated that CalAmp would be open to considering a go shop provision in
a definitive agreement for the transaction that would allow the Company to
explore strategic alternatives on a post-signing basis. Later in the same day,
Mr. Burdiek sent an e-mail to Mr. Ortiz with the same message.
On November 19, 2015, a
representative from Canaccord Genuity, Inc., CalAmp's financial advisor (the
"CalAmp Financial
Advisor"), discussed with Mr.
Cowan the status of CalAmps November 10th proposal and CalAmps
desire to engage on an exclusive basis. On the same day, a representative from
Gibson Dunn contacted Goodwin Procter and communicated that CalAmp wanted to
make it clear that they would not enter into a further standstill agreement with
the Company. Mr. Burdiek sent another e-mail to Mr. Ortiz reiterating these
messages.
On November 23, 2015, Mr.
Cowan sent a letter to Mr. Burdiek formally inviting CalAmp to participate in
the Company's strategic alternatives process and communicating that the Company
was not willing to enter into an exclusivity arrangement at that time, but was
will willing to move forward with discussions despite the expiration of the
standstill provision.
On November 30, 2015,
representatives from the Company Financial Advisor contacted the CalAmp
Financial Advisor to advise them that the Company Financial Advisor had been
retained by the Company Board. The representative from the CalAmp Financial
Advisor reiterated that CalAmp wanted to move forward on an immediate and
exclusive basis based on its November 10th proposal, which CalAmp
believed to be compelling. The representative from the CalAmp Financial Advisor
also noted that CalAmp was considering all of its options in light of the
expired standstill provision. The representatives from the Company Financial
Advisor indicated that they would revert to the CalAmp Financial Advisor shortly
with a proposal for next steps.
24
On December 1, 2015, Mr.
Burdiek left a voicemail message for Mr. Ortiz indicating again that CalAmp was
frustrated with the timing and was considering all of its options.
On December 2, 2015, Mr. Ortiz
returned Mr. Burdieks telephone call from the previous day. During that call,
Mr. Ortiz reiterated that CalAmp was invited to participate in the Company's
strategic alternatives process, that a financial advisor had been engaged by the
Company Board, and that the Company would be providing further information to
CalAmp shortly.
On December 4, 2015,
representatives of the Company Financial Advisor contacted the CalAmp Financial
Advisor and proposed a meeting between the CalAmp and Company management teams
for December 21st or 22nd.
On December 5, 2015,
representatives from the CalAmp Financial Advisor contacted the Company
Financial Advisor and indicated that CalAmp would be declining the Company's
offer for a meeting unless the Company agreed to accept CalAmps November
10th proposal and enter into an agreement providing for exclusive
negotiations between CalAmp and the Company.
On December 10, 2015, Mr.
Burdiek sent another letter to Mr. Ortiz reiterating CalAmps non-binding
proposal to acquire all of the outstanding shares of the Company at a price of
$5.50 per share in cash with no financing contingency. CalAmp made this letter
public through a press release prior to the opening of the U.S. stock markets on
December 10th.
Subsequently on December 10,
2015, the Company issued a press release confirming that it had received the
unsolicited proposal from CalAmp to acquire all of the Company's outstanding
shares for $5.50 per share in cash and announcing that the Company Board had
previously commenced a formal process for conducting a review of the Company's
strategic alternatives to maximize shareholder value. Following the Company's
press release, CalAmp issued another press release noting its disappointment
that the Company had not moved forward with its proposal and indicating that
CalAmp was ready to engage in discussions to negotiate a definitive agreement.
On December 11, 2015, representatives from the Company Financial Advisor
contacted the CalAmp Financial Advisor to reiterate the Company's invitation for
CalAmp to participate in the Company's strategic alternatives process.
On December 15, 2015,
representatives from the Company Financial Advisor contacted the CalAmp
Financial Advisor to invite CalAmp to attend a presentation by the Company's
management in early January 2016.
On December 16, 2015,
representatives of the CalAmp Financial Advisor and the Company Financial
Advisor again discussed the possibility of scheduling a management meeting with
representatives of CalAmp and the Company.
On December 17, 2015,
representatives from the CalAmp Financial Advisor contacted the Company
Financial Advisor and indicated that CalAmp would accept the Company's
invitation for a management meeting in early January 2016, subject to the
Company agreeing to certain amendments to the existing confidentiality agreement
between the parties.
On December 18, 2015,
representatives of Gibson Dunn contacted Goodwin Procter to discuss CalAmps
proposed amendments to the confidentiality agreement. Later that day, Gibson
Dunn provided a draft amendment to the confidentiality agreement to Goodwin
Procter to facilitate a proposed due diligence meeting between representatives
of CalAmp and the Company. As a result of this amendment, CalAmp would be
allowed to use the Company's confidential information (including any such
information provided to CalAmp at the proposed management meeting) for the
purpose of pursuing either a negotiated or hostile acquisition of the Company.
On December 23, 2015, Goodwin
Procter provided a revised draft of the proposed amendment to the
confidentiality agreement to Gibson Dunn. Thereafter, the parties and their
respective counsel negotiated the terms of such amendment to the confidentiality
agreement.
25
On December 29, 2015, the
parties entered into the amendment to the confidentiality agreement and
confirmed a management meeting between the parties to be held on January 6,
2016.
On January 5, 2016,
representatives of CalAmp had dinner with members of the Company's management
and representatives of the Company Financial Advisor. The parties did not
discuss price or any other terms for a possible strategic transaction during
this dinner.
On January 6, 2016,
representatives of CalAmp met with members of the Company's management and
representatives of the Company Financial Advisor at the offices of Goodwin
Procter in Boston, Massachusetts, during which the Company's management provided
an overview of the Company's business, its operations and financial matters. The
parties did not discuss price or any other terms for a possible strategic
transaction during this meeting, although we reiterated our desire to engage in
exclusive negotiations with the Company.
On January 7, 2016,
representatives of the Company Financial Advisor and the CalAmp Financial
Advisor discussed timing and next steps in the process.
On January 13, 2016,
representatives of the Company Financial Advisor and the CalAmp Financial
Advisor again discussed timing and next steps in the process. During this call,
the representatives of the CalAmp Financial Advisor indicated that CalAmp was
prepared to move expeditiously and could be in a position to sign a definitive
agreement in a few weeks.
On January 15, 2016,
representatives of the CalAmp Financial Advisor contacted the Company Financial
Advisor and indicated that CalAmp was frustrated with the pace of the Company's
process and, as a result, CalAmp was considering its options, including public
actions. The Company Financial Advisor informed the CalAmp Financial Advisor of
the preliminary and final bid dates and other process instructions, and the
opportunity for CalAmp to commence its confirmatory due diligence. The Company
Financial Advisor noted, however, that the Company Board did not believe that
CalAmps current proposal of $5.50 per share provided adequate value to the
Company's stockholders to preempt this process.
On January 15, 2016, the
Company Financial Advisor distributed a formal bid letter on behalf of the
Company to CalAmp. The bid letter requested preliminary indications of interest
by January 29, 2016, with the expectation that parties who proceeded to the
second round would perform due diligence and submit final proposals by February
12, 2016.
Subsequently on January 15,
2016, CalAmp submitted a revised written, non-binding proposal to the Company to
acquire all of the outstanding shares of the Company at a price of $6.10 per
share in cash, with no financing contingency and subject to similar terms and
conditions as the December 10th proposal. The letter indicated that
CalAmps proposal was intended to be preemptive, and requested that the parties
enter into a 10-day period of exclusive negotiations. The letter also indicated
that, unless the Company provided written confirmation by January
20th that it would proceed on the terms outlined in the letter,
CalAmp would immediately initiate the next steps to take its offer directly to
the Company's stockholders.
On January 19, 2016,
representatives of the Company Financial Advisor contacted the CalAmp Financial
Advisor several times to discuss CalAmps January 15th proposal and
request for exclusivity and next steps in the process. During these
conversations, the Company Financial Advisor and the CalAmp Financial Advisor
agreed to schedule a call for the following day, including the principals of
both the Company and CalAmp, to attempt to reach an agreement on price.
On January 20, 2016, Messrs.
Burdiek and Moyer and representatives of the CalAmp Financial Advisor had a call
with Messrs. Cowan and Ortiz and representatives of the Company Financial
Advisor. During this call, the parties discussed CalAmps January
15th proposal, certain opportunities and risks facing the Company,
and the price at which the Company might be willing to enter into exclusive
negotiations with CalAmp. Messrs. Cowan and Ortiz proposed a price of $6.75 per
share, and CalAmp countered with a price of $6.30 per share. Messrs. Cowan and
Ortiz proposed a potential contingent payment to the Company's stockholders in
the event of the successful resolution of the Company's pending arbitration
matter in an effort to further increase the price to the Company's stockholders,
which structure was rejected by CalAmp. Following these discussions, it was
agreed that, subject to the approval of the
CalAmp Board and negotiation of an exclusivity agreement acceptable to the
parties, CalAmp and the Company would proceed with discussions on an exclusive
basis for a 10-day period to finalize a transaction in which CalAmp would
acquire all of the Company's outstanding shares on a fully diluted basis at a
price of $6.45 per share in cash. Later in the day, the parties exchanged
letters confirming this understanding, including the approval of the CalAmp
Board. Thereafter, Goodwin Procter provided a draft exclusivity agreement to
Gibson Dunn, which the parties and their counsel proceeded to negotiate through
the following day.
26
On January 21, 2016, the
parties executed the exclusivity agreement which provided for an exclusive
negotiation period through 11:59 p.m. ET on January 31, 2016, subject to certain
conditions, including that CalAmp would not (1) reduce, or propose a reduction,
in the purchase price offered by CalAmp of $6.45 per share in cash for all
outstanding shares on a fully diluted basis, or change, or propose to change,
the form of such consideration, or (2) make a public offer to acquire the
Company's securities or any other public statement regarding a potential
transaction.
On January 22, 2016, the
Company provided CalAmp and its advisors with access to a virtual data room
containing business and legal due diligence materials. Thereafter, the parties
and their advisors had numerous discussions, and the Company provided answers to
numerous questions posed by CalAmp and its advisors, regarding the due diligence
materials provided by the Company and related matters.
Also on January 22, 2016,
Goodwin Procter provided an initial draft of the Merger Agreement to Gibson
Dunn. The draft Merger Agreement provided for, among other things, a transaction
structure consisting of an all cash tender offer with a second-step merger, the
right of the Company to terminate the Merger Agreement to accept a superior
proposal, and a termination fee equal to 2% of the equity value of the proposed
transaction.
On January 25, 2016, Gibson
Dunn provided comments to the initial draft of the Merger Agreement on behalf of
CalAmp. Thereafter, from January 25 to February 1, 2016, the parties and their
counsel had discussions regarding a number of issues in the Merger Agreement.
These issues included: (1) the scope of the Company's representations and
warranties and operating covenants; (2) the definition of material adverse
effect; (3) the triggers for payment of the termination fee by the Company; (4)
the size of the termination fee (CalAmp initially proposed $5.0 million or 3.8%
of equity value, and the parties negotiated a final termination fee of $4.5
million or 3.4% of equity value); (5) the treatment of the Company's outstanding
equity awards; (6) CalAmps obligations with respect to the Company's employees;
and (7) CalAmps obligations to obtain necessary regulatory approvals.
On January 26 and 27, 2016,
representatives of CalAmp and members of the Company's management team held
meetings at the offices of Goodwin Procter in Boston, Massachusetts, to conduct
confirmatory due diligence. Representatives from the CalAmp Financial Advisor
and the Company Financial Advisor were present at the meetings held on January
27th.
On January 29, 2016, the preliminary bid deadline set forth in the bid
letter distributed by the Company Financial Advisor on January 15th
passed.
On January 31, 2016, the
Company and CalAmp executed a letter agreement extending the end date in the
exclusivity agreement to 11:59 p.m. ET on February 1, 2016.
Also on January 31, 2016, the
CalAmp Board held a telephonic meeting at which representatives of Gibson Dunn
and the CalAmp Financial Advisor were present. During such meeting, Gibson Dunn
provided an update on the negotiations with the Company and Goodwin Procter and
answered questions from the CalAmp Board regarding the terms and conditions of
the Merger Agreement. In addition, the CalAmp Board reviewed draft resolutions
approving the Merger Agreement, the Offer, the Merger and the other transactions
contemplated by the Merger Agreement.
On January 31, 2016 and
February 1, 2016, the parties and their counsel had various telephonic meetings
to negotiate the unresolved issues in the Merger Agreement, as well as to
finalize CalAmps confirmatory due diligence.
27
On February 1, 2016, the
CalAmp Board held a telephonic meeting at which representatives of Gibson Dunn
and the CalAmp Financial Advisor were present. During such meeting, Gibson Dunn
provided an update on the final negotiations with the Company and Goodwin
Procter and answered questions from the CalAmp Board. After discussion, the
CalAmp Board unanimously adopted resolutions approving the Merger Agreement, the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement.
Also on February 1, 2016,
following the closing of the U.S. stock markets, CalAmp and the Company executed
the Merger Agreement and issued a joint press release regarding the
transaction.
The preceding discussion of
CalAmp's participation in the Companys process for exploring strategic
alternatives that culminated in the execution of the Merger Agreement is not,
and is not intended to be, exhaustive. For a full description of such process,
see the Company's Schedule 14D-9, which will be mailed to the stockholders of
the Company together with this Offer to Purchase.
12. The Merger Agreement.
The following section
summarizes material provisions of the Merger Agreement, a copy of which has been
filed as Exhibit (d) to the Schedule TO filed by CalAmp with the SEC on February
16, 2016. This summary is qualified in its entirety by reference to the Merger
Agreement, which is incorporated by reference herein. The rights and obligations
of the parties are governed by the express terms and conditions of the Merger
Agreement and not by this summary or any other information contained in the
Offer to Purchase. Capitalized terms used in this "The OfferSection 12The
Merger Agreement," but not defined herein have the respective meanings given to
them in the Merger Agreement.
The Merger Agreement is
included as an exhibit to the Schedule TO only for the purpose of providing
public disclosure regarding its terms and conditions as required by U.S. federal
securities laws, and it is not intended to provide any factual information about
the Company, CalAmp or Purchaser. The Merger Agreement contains representations
and warranties by each of the parties to the Merger Agreement. These
representations and warranties:
● |
were made only for purposes of the Merger
Agreement and as of specific dates and may be subject to more recent
developments; |
|
|
● |
may not be intended as
statements of fact, but rather as a way of allocating risk between the
parties in the event that the statements therein prove to be
inaccurate; |
|
|
● |
have been qualified by
certain disclosures that were made between the parties in connection with
the negotiation of the Merger Agreement, which disclosures are not
reflected in the merger agreement itself;
and |
|
|
● |
may apply standards of
materiality in a way that is different from what may be viewed as material
by you or other investors. |
Accordingly, the
representations and warranties and other provisions of the Merger Agreement
should not be read alone, but instead should be read only in conjunction with
information provided elsewhere in this Offer to Purchase and the exhibits.
Moreover, information concerning the subject matter of the representations and
warranties may change after the date of the Merger Agreement, which subsequent
information may or may not be fully reflected in the Companys public
disclosures. CalAmp will provide additional disclosure in its public reports to
the extent that it is aware of the existence of any material facts that are
required to be disclosed under the U.S. federal securities laws and that might
otherwise contradict the terms and information contained in the Merger Agreement
and will update such disclosure as required by U.S. federal securities laws.
The
Offer
The Merger Agreement provides
for the making of the Offer. The obligation of Purchaser to accept for payment
and pay for Shares tendered pursuant to the Offer is subject to the satisfaction
or waiver of the Minimum Condition and the other Offer Conditions that are
described in "The OfferSection 15Conditions of the Offer."
28
Waiver of Certain
Conditions of the Offer.
CalAmp and Purchaser have
expressly reserved the right to waive any of the Offer Conditions, in their sole
discretion, provided that, without the
consent of the Company, Purchaser cannot: (i) change the form of consideration
payable in the Offer, decrease the Offer Price or the number of Shares subject
to or sought pursuant to the Offer; (ii) extend the Expiration Time, except as
required by the Merger Agreement or Applicable Law (including for any period
required by any rule, regulation, interpretation or position of the SEC or its
staff); (iii) waive or amend the Minimum Condition; (iv) impose any condition to
the Offer not set forth in the Offer Conditions; or (v) modify, amend or
supplement any of the Offer Conditions or any term of the Offer in a manner
adverse to the holders of the Shares.
Extension of the
Offer.
The initial expiration date of the Offer will
be 12:00 midnight, Eastern time, on Monday, March 14, 2016 (one minute after 11:59 P.M., Eastern time, on Monday, March 14,
2016) (such time, as it may be extended, the "Expiration
Time").
In accordance with the terms
of the Offer and the Merger Agreement, and subject to the applicable rules and
regulations of the SEC, we may, and in certain instances are required to, extend
the Offer at any time and from time to time. Under the terms of the Merger
Agreement if, at the initial expiration date of the Offer or upon expiration of
any extension period, any Offer Condition is not satisfied and has not been
waived (if permitted by the Merger Agreement), we must extend the Offer on one
or more occasions in consecutive increments of up to ten (10) business days each
(as determined in good faith by CalAmp and the Company), until the earlier of
(i) the date on which all of the Offer Conditions are satisfied or waived and
(ii) the date on which the Merger Agreement is terminated in accordance with its
terms.
We may, without the consent of
the Company, elect to provide a Subsequent Offering Period in accordance with
Rule 14d-11 of the Exchange Act following our acceptance for payment of the
Shares in the Offer.
Directors.
If Purchaser accepts Shares
for payment, promptly after such time, Purchaser will become entitled to
designate such Purchaser Designees, rounded up to the nearest whole number, on
the Company Board, as will give Purchaser representation on the Company Board
equal to the product of (x) the total number of members on the Company Board
(after giving effect to the directors elected pursuant to this sentence)
multiplied by (y) the percentage that the number of Shares beneficially owned by
CalAmp or Purchaser at such time (including Shares accepted for payment) bears
to the total number of Shares then outstanding on a Fully Diluted basis. Upon
the request of Purchaser, the Company must promptly either increase the size of
the Company Board or use its commercially reasonable efforts to seek the
resignations of such number of the Companys incumbent directors as necessary to
enable Purchaser Designees to be so elected or appointed. The Company will also,
upon CalAmps request, to the extent permitted by the applicable requirements of
the SEC and NASDAQ, use commercially reasonable efforts to cause Purchaser
Designees to constitute at least the same percentage (rounded up to the next
whole number) as is on the Company Board of (i) each committee of the Company
Board; (ii) each board of directors (or similar body) of each wholly-owned
Subsidiary of the Company; and (iii) each committee (or similar body) of each
such board. The Companys obligation to appoint Purchaser Designees to the
Company Board will be subject to Section 14(f) of the Exchange Act.
Notwithstanding the foregoing,
at least three of the members of the Company Board will, at all times prior to
the Effective Time, be directors of the Company who were directors of the
Company on the date of the Merger Agreement and who qualify as independent
directors for purposes of the continued listing requirements of NASDAQ;
provided that if there are in office less than three
Independent Directors for any reason, the Company Board will elect the Person
designated by the remaining Independent Director or Directors to fill such
vacancy, or if no Independent Directors then remain, the other directors of the
Company then in office will designate and elect three Persons to fill such
vacancies who will not be directors, officers, employees or Affiliates of CalAmp
or Purchaser. From and after the time that
any Purchaser Designees join the Company Board and prior to the Effective Time,
subject to the terms of the Merger Agreement, (i) any amendment or modification
of the Merger Agreement, (ii) any termination of the Merger Agreement by the
Company, (iii) any extension of time for performance of any of the obligations
of CalAmp or Purchaser under the Merger Agreement, (iv) any waiver of any
condition to the Companys obligations or any of the Companys rights under the
Merger Agreement or (v) any amendment to the Company Charter Documents will be
effected only if (in addition to the approval of the Company Board as a whole)
there are in office one or more Independent Directors and such action is
approved by a majority of the Independent Directors then in office.
29
Company Board
Recommendation.
The Company has represented in
the Merger Agreement that the Company Board, at a meeting duly called and held,
has: (i) determined that the Merger Agreement and the Offer and the Merger are
in the best interests of the stockholders of the Company, (ii) adopted the
Merger Agreement and approved and declared advisable the Offer, the Merger and
the other transactions contemplated by the Merger Agreement, in accordance with
the requirements of the MBCA; and (iii) resolved to recommend acceptance of the
Offer and, if necessary, approval of the Merger Agreement by the stockholders of
the Company.
The Top-Up
Option.
The Company has granted an
irrevocable Top-Up Option to Purchaser. If the Top-Up Option is exercised,
Purchaser will purchase, at a price per share equal to the greater of (i) the
closing price of a Share on NASDAQ on the last trading day prior to the exercise
of the Top-Up Option or (ii) the Offer Price, the number of newly issued Shares
equal to the lowest number of Shares that, when added to the number of Shares
owned by Purchaser at the time of exercise of the Top-Up Option (after giving
effect to the issuance of the Top-Up Shares but excluding Shares tendered
pursuant to guaranteed delivery procedures that have not yet been delivered in
settlement or satisfaction of such guarantee), will meet the Short Form
Threshold of at least 90% of the number of Shares then outstanding. The Top-Up
Option may only be exercised one time by Purchaser, in whole but not in part,
and only if clauses (i) and (ii) of the following sentence are satisfied.
Purchaser must exercise the Top-Up Option promptly (but in no event later than
one business day) after the Acceptance Time or the expiration of a Subsequent
Offering Period, as applicable, if the number of Shares owned by Purchaser at
such time does not meet the Short Form Threshold, and if and only if, after
giving effect to the exercise of the Top-Up Option, (i) Purchaser would own in
the aggregate Shares sufficient to meet the Short Form Threshold and (ii) the
number of Top-Up Shares to be issued does not exceed the number of authorized
and unissued Shares available under the Companys articles of organization (and
that are not subscribed for or otherwise reserved for issuance).
Based on the Companys
representations in the Merger Agreement relating to capitalization, there will
be 15,316,097 Shares available for the Top-Up Option and, therefore, we must
acquire at least 16,183,903 Shares or approximately 82.22% of the number of
Shares outstanding in order for there to be sufficient authorized but unissued
Shares for us to exercise the Top-Up Option and acquire at least 90% of the
number of Shares then outstanding. The actual number of Shares that we must
acquire in order for there to be sufficient authorized but unissued Shares for
us to exercise the Top-Up Option and acquire at least 90% of the number of
Shares then outstanding will depend upon the actual number of then outstanding
Shares at the expiration time of the Offer.
The aggregate purchase price
payable for Shares in exercising the Top-Up Option will be paid by Purchaser as
follows: (i) the portion of the aggregate purchase price equal to the par value
of such Shares will be paid in cash; and (ii) the balance of the remaining
aggregate purchase price may be paid, at Purchasers option, in cash or by
executing and delivering to the Company a promissory note having a principal
amount equal to the balance of the remaining aggregate purchase price, or some
combination thereof. We expect the promissory note would be cancelled in
connection with the Merger. The Top-Up Option is intended to expedite the timing
of the completion of the Merger by permitting us to effect a "short form" merger
pursuant to the applicable provisions of the MBCA without a vote of the
Companys stockholders at a time when the approval of the Merger at a meeting of
the Companys stockholders would be assured in any case because of our control
of at least two-thirds (66 ⅔%) of the Shares
following completion of the Offer. Although we currently expect to meet the
requirements to purchase Shares pursuant to
the Top-Up Option to the extent necessary for this purpose, there can be no
assurance that we will ultimately do so.
30
The
Merger.
Following completion of the
Offer and in accordance with the MBCA, Purchaser will be merged with and into
the Company with the Company being the surviving corporation (the
"Surviving
Company").
Articles of Organization
and Bylaws.
At the Effective Time, the
articles of organization, as amended, of the Company, as in effect immediately
before the Effective Time, will be amended pursuant to the filing of the
articles of merger (which will include the amendments set forth in the exhibit
to the Merger Agreement) with the Secretary of the Commonwealth of
Massachusetts, and as so amended, will be the articles of organization of the
Surviving Company. The bylaws of the Company will be amended at the Effective
Time to read in their entirety as set forth in the exhibit to the Merger
Agreement, and as so amended, will be the bylaws of the Surviving
Company.
Directors.
From the Effective Time, the
directors of Purchaser immediately before the Effective Time will be the
directors of the Surviving Company.
Officers.
From the Effective Time, the
officers of the Company immediately before the Effective Time will be the
officers of the Surviving Company.
Merger
Consideration.
At the Effective Time, each
issued and outstanding Share (other than Shares owned (i) by CalAmp or
Purchaser, which will be cancelled with no consideration and (ii) by any
stockholders of the Company who properly exercise their appraisal rights, if
applicable) will be cancelled and converted into the right to receive the Merger
Consideration, which is an amount equal to the Offer Price, in cash, without
interest. All Shares that have been converted into the right to receive the
Merger Consideration will automatically be canceled and will cease to
exist.
The Merger Agreement provides,
among other things, that if prior to the Effective Time, there occurs any change
in the outstanding Shares, including by reason of any reclassification,
recapitalization, stock split (including reverse stock split) or combination,
exchange or readjustment of Shares, or any stock dividend thereon, the Offer
Price and the Merger Consideration (as applicable) and any other amounts payable
pursuant to the Merger Agreement will be appropriately and proportionately
adjusted to reflect the effects of such change.
Payment for
Shares.
CalAmp has designated Computershare
Trust Company, N.A. (the "Paying Agent")
to make payment of the Merger Consideration. Prior to each of the Acceptance Time and the Effective Time, CalAmp
will deposit or cause to be deposited, with the Paying Agent, immediately available funds equal to the aggregate Offer
Price and the aggregate Merger Consideration (the "Exchange
Fund"). As soon as reasonably practicable after the Effective Time,
CalAmp or the Surviving Company will cause the Paying Agent to mail to each holder of record of Shares a Letter of
Transmittal and instructions for use in effecting the surrender of Certificates in exchange for the Merger Consideration.
The Paying Agent will pay the Merger Consideration to the stockholders upon receipt of (i)
surrendered Certificates representing the Shares and (ii) a signed Letter of Transmittal and any other items specified by
the Paying Agent. Surrendering stockholders will receive in exchange the Merger Consideration, without
interest. CalAmp, Purchaser, the Surviving Company and the Paying Agent will be entitled to reduce the amount of any Merger
Consideration paid to the stockholders by any applicable withholding taxes.
31
Any portion of the Exchange
Fund that remains unclaimed by the holders of Shares twelve months after the
Effective Time will be delivered to the Surviving Company, upon demand, and such
holder who has not previously exchanged Shares for the Merger Consideration in
accordance with the aforementioned procedures will thereafter look only to
CalAmp for payment of the Merger Consideration.
Treatment of Company
Equity Awards.
At the Acceptance Time, each
outstanding option to purchase Company common stock, whether or not vested and
exercisable, will be cancelled and converted into the right to receive an amount
in cash (without interest and less any applicable withholding taxes) equal to
the product of (i) the excess, if any, of (A) the Offer Price minus (B) the per
share exercise price for such option, and (ii) the total number of shares
underlying such option. At the Acceptance Time, each outstanding restricted
stock unit award, whether vested or unvested, will be cancelled and converted
into the right to receive an amount in cash (without interest and less any
applicable withholding taxes) equal to the product of (i) the Offer Price and
(ii) the total number of Shares underlying such restricted stock unit award. At
the Acceptance Time, each outstanding Company restricted stock award will
accelerate and become fully vested such that the Companys right of
reacquisition or repurchase, as applicable, will lapse in full effective
immediately prior to, and contingent upon, the Acceptance Time. Each Share
underlying such restricted stock awards will be treated as an outstanding Share,
including for purposes of tendering pursuant to the Offer.
Representations and
Warranties.
Pursuant to the Merger
Agreement, the Company has made customary representations and warranties to
CalAmp and Purchaser, including representations relating to:
● |
corporate organization; |
|
|
● |
subsidiaries; |
|
|
● |
capitalization;
|
|
|
● |
SEC filings, controls and
procedures; |
|
|
● |
financial
statements; |
|
|
● |
the Schedule 14D-9 and
other disclosure documents; |
|
|
● |
absence of certain
changes or events; |
|
|
● |
title to
assets; |
|
|
● |
real property and
equipment; |
|
|
● |
intellectual
property; |
|
|
● |
material
contracts; |
|
|
● |
absence of undisclosed
liabilities; |
|
|
● |
compliance with
law; |
|
|
● |
regulatory
matters; |
|
|
● |
privacy
policies; |
|
|
● |
certain business
practices; |
|
|
● |
tax
matters; |
|
|
● |
employee matters and
benefit plans; |
|
|
● |
labor
matters; |
|
|
● |
environmental
matters; |
|
|
● |
insurance; |
|
|
● |
litigation
matters; |
|
|
● |
authority;
|
32
● |
takeover laws; |
|
|
● |
non-contravention; |
|
|
● |
consents; |
|
|
● |
the fairness opinion
received by the Company Board; and |
|
|
● |
the Companys financial
advisor. |
Certain representations and
warranties in the Merger Agreement made by the Company are qualified as to
"materiality" or "Company Material Adverse Effect." For the purposes of the
Merger Agreement, "Company
Material Adverse Effect"
means a material adverse effect on (i) the business, assets, liabilities,
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole; or (ii) the ability of the Company to consummate
the transactions contemplated by the Merger Agreement, excluding in each case
any such adverse effect resulting from or arising out of:
● |
the announcement, pendency or consummation
of the Offer or the Merger (including any loss of or adverse change in the
relationship (contractual or otherwise) of the Company and its
Subsidiaries with their respective employees, contractors, customers,
licensees, licensors, partners or suppliers as a result
thereof); |
|
|
● |
the identity of CalAmp
or any of its Affiliates as the acquirer of the Company or any facts or
circumstances concerning CalAmp or any of its Affiliates; |
|
|
● |
general economic,
financial, debt, capital, credit or securities markets or political
conditions in the United States or elsewhere in the world to the extent
such conditions impact the United States or elsewhere in the world where
the Company and its Subsidiaries operate; |
|
|
● |
general conditions in
the automotive industry and other industries in which the Company and its
Subsidiaries operate in the United States and elsewhere in the
world; |
|
|
● |
any changes or
prospective changes in GAAP (or the rules and regulations thereof) or
Applicable Law (or any interpretations thereof); |
|
|
● |
the taking of any
specific action, or refraining from taking any specific action, in each
case at the request of CalAmp or Purchaser or as required by the Merger
Agreement; |
|
|
● |
any Shareholder
Litigation; |
|
|
● |
any outbreak or
escalation of hostilities, any acts of terrorism, sabotage, military
action or war, or any weather-related event, fire or natural or man-made
disaster or any escalation thereof; or |
|
|
● |
any failure by the
Company to meet internal or analysts estimates or projections,
performance measures, operating statistics or revenue or earnings
predictions for any period or a decline in the price or trading volume of
Shares (provided,
however, that, except as otherwise provided in this
definition, the underlying causes of such failure or decline may be taken
into account in determining whether a Company Material Adverse Effect has
occurred); |
provided that, in the case of the third, fourth and fifth
bullet points above, such effect may be taken into account in determining
whether or not there has been a Company Material Adverse Effect to the extent
such effect has a materially disproportionate adverse effect on the Company and
its Subsidiaries, taken as a whole, as compared to other participants in the
industry in which the Company and its Subsidiaries operate.
Pursuant to the Merger
Agreement, CalAmp and Purchaser have made customary representations and
warranties to the Company, including representations relating to:
● |
corporate organization; |
|
|
● |
capitalization; |
|
|
● |
operation of
Purchaser; |
|
|
33
● |
the Offer to Purchase and other disclosure
documents; |
|
|
● |
absence of
litigation; |
|
|
● |
availability of
funds; |
|
|
● |
ownership of
Shares; |
|
|
● |
absence of certain
agreement; and |
|
|
● |
CalAmps financial
advisor. |
None of the representations
and warranties in the Merger Agreement will survive consummation of the
Merger.
Covenants.
Company Conduct of Business
Covenants.
The Merger Agreement provides
that, at all times from the execution of the Merger Agreement until the Control
Time, except: (i) as required or otherwise contemplated under the Merger
Agreement; (ii) with the prior written consent of CalAmp (not to be unreasonably
withheld, conditioned or delayed); (iii) as required by Applicable Law; or (iv)
as set forth in schedules to the Merger Agreement, the Company will ensure that
it and each of its Subsidiaries conducts its business and operations in the
ordinary course, consistent with past practice and use its commercially
reasonable efforts to: (a) preserve intact its business organization and
material assets; (b) keep available the services of its officers and employees
who are integral to the operation of the business as presently conducted; (c)
maintain in effect all of its Governmental Authorizations; and (d) maintain
satisfactory relationships with customers, lenders, suppliers, licensors,
licensees, distributors and others having material business relationships with
the Company. The Company also agreed that, at all times from the execution of
the Merger Agreement until the Control Time, except as set forth in clauses (i)
through (iv) above, the Company will not, and will not permit any of its
Subsidiaries to:
● |
declare, accrue, set aside or pay any
dividend or make any other distribution (whether in cash, stock or
property) in respect of any shares of the Companys capital stock, or
repurchase, redeem or otherwise reacquire any shares of the Companys
capital stock, other than (i) dividends or distributions between or among
the Company and its Subsidiaries to the extent consistent with past
practices; and (ii) other acquisitions or distributions of Shares
resulting from the forfeiture, vesting or settlement (including tax
withholding) or exercise of Company Options, Company RSUs or Company
Restricted Shares, as applicable, outstanding on the date of the Merger
Agreement; |
|
|
● |
sell, issue, grant or authorize the issuance
or grant of (i) any capital stock or other security of the Company; (ii)
any option, call, warrant, share of phantom stock or phantom stock right,
stock purchase or stock appreciation right, restricted stock unit,
performance stock unit or right to acquire any capital stock or other
security of the Company; or (iii) any instrument convertible into or
exchangeable for any capital stock or other security of the Company, in
each of clauses (i) through (iii) other than: (A) the issuance of Shares
upon the exercise or settlement of Company Options or Company RSUs, or
pursuant to the terms of the Company Restricted Stock Awards that are
outstanding on the date of the Merger Agreement, in each case in
accordance with the applicable equity awards terms as in effect on the
date of the Merger Agreement (or as may be amended, or granted or awarded
not in violation of the Merger Agreement), and (B) grants or awards of
Shares (including Company Restricted Shares) or Company Options or Company
RSUs required to be made pursuant to the terms of existing employment or
other compensation agreements or arrangements (including new hire offer
letters) in effect as of the date of the Merger Agreement (or as may be
amended or entered into not in violation of the Merger Agreement);
|
34
● |
split, combine or reclassify its outstanding
shares of capital stock of the Company or enter into any agreement with
respect to voting of any of the capital stock of any of the Company or any
securities convertible into or exchangeable for such capital stock;
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● |
increase the salary, wages, benefits,
bonuses or other compensation payable or to become payable to the
Companys current or former directors or executive officers, except for
(i) increases required to be made pursuant to the terms of existing
employment or other compensation agreements or arrangements in effect as
of the date of the Merger Agreement (or as may be amended or entered into
not in violation of the Merger Agreement); or (ii) increases required
under any Employee Plan or under Applicable Law (for the avoidance of
doubt, the Company will be permitted to pay its employees (or those of its
Subsidiaries) bonuses earned for the fiscal year ended December 31, 2015);
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● |
except to the extent required by (i)
Applicable Law (including Section 409A of the Code), or (ii) any Employee
Plan in effect as of the date of the Merger Agreement, accelerate the
vesting of, or the lapsing of restrictions with respect to, any Company
Options or other Company stock-based compensation prior to the Acceptance
Time; |
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● |
amend or modify, or authorize or formally
propose to amend or modify, any of the Company Charter Documents;
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● |
incur, or assume or otherwise become liable
for any long-term or short-term Indebtedness except (i) for borrowings
under the Companys current credit facilities in the ordinary course of
business consistent with past practice; or (ii) in respect of Indebtedness
owing by any wholly-owned Subsidiary of the Company to the Company or
another wholly-owned Subsidiary of the Company; |
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● |
incur or commit to incur any capital
expenditures in an amount in excess of $500,000 individually or $1,500,000
in the aggregate in any three month period;
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● |
sell, lease, license, pledge, transfer,
subject to any Encumbrance or otherwise abandon, cease to prosecute, or
dispose of any Intellectual Property Assets, or other material assets or
properties except (i) pursuant to existing contracts or commitments; (ii)
non-exclusive licenses of Company Intellectual Property Assets to its
customers, contractors, partners or suppliers in the ordinary course of
business consistent with past practice; (iii) sales of inventory or used
equipment in the ordinary course of business consistent with past
practice; (iv) Permitted Encumbrances incurred in the ordinary course of
business consistent with past practice; or (v) abandonment or cessation of
prosecution of Intellectual Property Assets no longer used in the
Business, where the Company has determined in its reasonable business
judgment that such abandonment or cessation is desired; |
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● |
change any of its methods of accounting or
accounting practices in any material respect unless required by GAAP or
Applicable Law or as otherwise specifically disclosed in the Company SEC
Documents; |
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● |
enter into any collective bargaining,
agreement to form a work council or other union or similar agreement or
commit to enter into any such agreements; |
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● |
(i) modify or amend in any material respect,
or terminate or cancel (excluding terminations or cancellations upon
expiration of the term thereof in accordance with their terms) or extend
any Material Contract, except in the ordinary course of business
consistent with past practice; or (ii) enter into any Contract that if in
effect on the date of the Merger Agreement would be a Material Contract;
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● |
enter into any new line of business outside
of the ordinary course of business; |
35
● |
settle, pay or discharge any litigation,
investigation, or arbitration, other than the settlement, payment,
discharge or satisfaction in the ordinary course of business consistent
with past practice; |
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● |
enter into any agreement providing for the
divestiture of certain interests held by the Company, or the sale of any
material assets or properties related to such interests, other than in the
ordinary course of business; |
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● |
adopt or enter into a plan of complete or
partial liquidation, dissolution, restructuring, recapitalization or other
reorganization; or |
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● |
authorize, or agree, resolve or commit to
take, any of the foregoing actions. |
Control Time means the
earlier of (i) such time as Purchaser Designees first constitute at least a
majority of the Company Board, and (ii) the Effective Time.
No
Solicitation.
The Company has agreed that it
will not, nor will the Company permit any of its Subsidiaries to, nor will the
Company authorize any of its Representatives or any of its Subsidiarys
Representatives to, and the Company will not publicly propose to, directly or
indirectly (other than with respect to CalAmp and Purchaser):
● |
solicit, initiate, facilitate or knowingly
encourage any inquiries, proposals or offers that constitute, or that
would reasonably be expected to lead to, an Acquisition
Proposal; |
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● |
engage in, continue or
otherwise participate in any discussions or negotiations with any Third
Party regarding an Acquisition Proposal, or furnish to any Third Party
information or provide to any Third Party access to the businesses,
properties, assets or personnel of the Company or any of its Subsidiaries,
in each case for the purpose of encouraging or facilitating an Acquisition
Proposal; or |
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● |
enter into any letter of
intent, agreement, contract, commitment or agreement in principle with
respect to an Acquisition Proposal (other than an Acceptable
Confidentiality Agreement) or enter into any agreement, contract or
commitment requiring the Company to abandon, terminate or fail to
consummate the transactions contemplated by the Merger Agreement.
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In addition, the Company will,
and will cause its Subsidiaries to, and will direct the Companys and its
Subsidiaries Representatives to, immediately cease and terminate any existing
discussions or negotiations with any Third Party theretofore conducted by the
Company, its Subsidiaries or their respective Representatives with respect to an
Acquisition Proposal.
Notwithstanding anything to
the contrary contained in the Merger Agreement, if, at any time prior to the
Acceptance Time:
● |
the Company receives a written Acquisition
Proposal from a Third Party; |
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● |
such Acquisition
Proposal did not result from a breach of the Merger Agreement (except for
any immaterial breach by a Representative of the Company who is not an
officer or director of the Company); |
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● |
the Company Board or any
committee thereof determines in good faith, after consultation with the
Company Financial Advisor and outside legal counsel, that such Acquisition
Proposal constitutes, or could reasonably be expected to lead to, a
Superior Proposal; and |
36
● |
the Company Board determines in good faith
after consultation with outside legal counsel that the failure to take the
actions referred to below would constitute a breach of its fiduciary
duties to the stockholders of the Company under Applicable Law,
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then the Company may furnish
information and data with respect to the Company and its Subsidiaries to the
Third Party making such Acquisition Proposal and afford such Third Party access
to the businesses, properties, assets and personnel of the Company and its
Subsidiaries, and enter into, maintain and participate in discussions or
negotiations with the Third Party making such Acquisition Proposal regarding
such Acquisition Proposal or otherwise cooperate with or assist or participate
in, or facilitate, any such discussions or negotiations; provided, however, that the Company:
● |
will not, and will not permit its
Subsidiaries or its or their Representatives to, furnish any non-public
information except pursuant to an Acceptable Confidentiality Agreement;
and |
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● |
will promptly provide to
CalAmp any material non-public information concerning the Company or its
Subsidiaries or access provided to such Third Party which was not
previously provided to CalAmp. |
Notwithstanding anything to
the contrary contained in the Merger Agreement, the Company and its
Representatives may (without any determination by the Company Board or any
committee thereof or consultation with the Company Financial Advisor or outside
legal counsel) (i) following the receipt of an Acquisition Proposal from a Third
Party that did not result from a breach of the Merger Agreement (except for any
immaterial breach by a Representative of the Company who is not an officer or
director of the Company), contact such Third Party solely in order to clarify
and understand the terms and conditions of an Acquisition Proposal made by such
Third Party so as to determine whether such Acquisition Proposal constitutes, or
could reasonably be expected to lead to, a Superior Proposal and/or (ii) direct
any Persons to the Merger Agreement.
From and after the date of the
Merger Agreement, and except to the extent expressly prohibited by a
confidentiality agreement in place as of the date of the Merger Agreement, the
Company will as promptly as practicable (and in any event within twenty-four
(24) hours) notify CalAmp of any Acquisition Proposal, which notification will
include a copy of the applicable written Acquisition Proposal (or, if oral, the
material terms and conditions of such Acquisition Proposal) and the identity of
the Third Party making such Acquisition Proposal. The Company will thereafter
keep CalAmp reasonably informed on a reasonably current basis of the status of
any material developments, discussions or negotiations regarding any such
Acquisition Proposal, and the material terms and conditions thereof (including
any change in price or form of consideration or other material amendment
thereto), including by providing a copy of material documentation relating
thereto that is exchanged between the Third Party (or its Representatives)
making such Acquisition Proposal and the Company (or its Representatives) within
twenty four (24) hours after receipt thereof (except to the extent expressly
prohibited by a confidentiality agreement in place as of the date of the Merger
Agreement).
The Company has agreed not to
release or permit the release of any Person from, or to waive or permit the
waiver or termination of any provision of, any confidentiality, "standstill" or
similar agreement to which any of the Company or any of its Subsidiaries is a
party, other than to the extent the Company Board or any committee thereof
determines in good faith, after consultation with the Company Financial Advisor
and outside legal counsel, that failure to do so would constitute a breach of
the directors fiduciary duties under Applicable Law.
For purposes of the Merger
Agreement, "Acquisition
Proposal" means any inquiry,
offer, proposal or indication of interest (in writing or otherwise) from any
Third Party relating to any transaction or series of related transactions
involving (i) any acquisition or purchase by any Third Party, directly or
indirectly, of 20% or more of any class of outstanding voting or equity
securities of the Company, or any tender offer (including a self-tender) or
exchange offer that, if consummated, would result in any Third Party
beneficially owning 20% or more of any class of outstanding voting or equity
securities of the Company; (ii) any merger, amalgamation, consolidation, share
exchange, business combination, joint venture or other similar transaction
involving the Company, the business of which constitutes 20% or more of the net
revenues, net income or assets of the Company and its Subsidiaries, taken as a
whole; or (iii) any liquidation, dissolution, recapitalization, extraordinary
dividend or other significant corporate reorganization of the Company, the business of which constitutes 20% or
more of the net revenues, net income or assets of the Company and its
Subsidiaries, taken as a whole.
37
For the purposes of the Merger
Agreement, "Superior
Proposal" means any
unsolicited bona fide written Acquisition Proposal that the Company Board or any
committee thereof determines in good faith (after consultation with the Company
Financial Advisor and outside legal counsel), taking into account, among other
things, all legal, financial, regulatory, and other aspects of the Acquisition
Proposal and the Third Party making the Acquisition Proposal, including the form
of consideration, financing terms (which shall not include a financing
condition) thereof, timing and the likelihood of consummation, would, if
consummated, result in a transaction that is more favorable to the Companys
stockholders than the Offer and the Merger (including any adjustment to the
terms and conditions proposed by CalAmp in response to such proposal, if
applicable); provided, however, that, for purposes of this definition of "Superior Proposal," references in the term "Acquisition Proposal" to "20% or more" will be deemed to be references
to "more than 50%".
Change in
Recommendation/Termination in Connection with a Superior
Proposal.
The Company has agreed that,
except as set forth below, neither the Company Board nor any committee thereof
will (i) fail to make, withdraw, amend or modify, or publicly propose to
withhold, withdraw, amend or modify the Company Board Recommendation, in each
case in any manner adverse to the transactions contemplated by the Merger
Agreement; or (ii) approve or recommend, or publicly propose to approve or
recommend, an Acquisition Proposal (each of the actions described in clauses (i)
and (ii) is an "Adverse Change
Recommendation").
At any time prior to the
Control Time, the Company Board may, if the Company Board determines in good
faith (after consultation with the Company Financial Advisor and outside legal
counsel), that the failure to do so would constitute a breach of the fiduciary
duties of the Company Board under Applicable Law, (i) make an Adverse Change
Recommendation in response to either (a) a Superior Proposal received after the
date of the Merger Agreement or (b) any material fact, event, change,
development or circumstance not known by the Company Board as of the date of the
Merger Agreement and not relating to the receipt, existence or terms of any
Acquisition Proposal or consequence thereof (such fact, event, change,
development or circumstance, an "Intervening Event") or
(ii) cause the Company to terminate the Merger Agreement and authorize the
Company to enter into a definitive agreement with respect to a Superior Proposal
(which agreement will be entered into substantially concurrently with such
termination (or no later than the next business day if such termination occurs
on a day that is not a business day)), subject in each case to compliance with
the terms below, as applicable.
In the case of a Superior
Proposal, no Adverse Change Recommendation and/or no termination of the Merger
Agreement may be made:
● |
until after the third business day following
written notice from the Company advising CalAmp that the Company Board
intends to make an Adverse Change Recommendation and/or terminate the
Merger Agreement and specifying the reasons therefor, including, if
applicable, the material terms and conditions of, and the identity of the
Third Party making, such Superior Proposal, and a copy of any other
relevant transaction documents; |
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|
● |
unless during such three
business day period, the Company negotiates, and causes its
Representatives to negotiate, to the extent requested by CalAmp, with
CalAmp in good faith to make such adjustments to the terms and conditions
of the Merger Agreement as would enable the Company Board to maintain the
Company Board Recommendation and not make an Adverse Change Recommendation
and/or terminate the Merger Agreement; and |
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|
● |
unless, prior to the
expiration of such three business day period, CalAmp does not make a
proposal to adjust the terms and conditions of the Merger Agreement that
the Company Board determines in good faith (after consultation with the
Company Financial Advisor and outside legal counsel) to be at least as
favorable to the Companys stockholders as the Superior Proposal.
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38
In the case of an Intervening
Event, no Adverse Change Recommendation may be made:
● |
until after the third business day following
written notice from the Company advising CalAmp that the Company Board
intends to take such action and specifying the facts underlying the
determination by the Company Board that an Intervening Event has occurred,
and the reason for the Adverse Change Recommendation, in reasonable detail
(and the Company will keep CalAmp reasonably informed of material
developments with respect thereto); and |
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|
● |
unless during such three
business day period, the Company negotiates, and causes its
Representatives to negotiate, to the extent requested by CalAmp, with
CalAmp in good faith to enable CalAmp to amend the Merger Agreement in
such a manner that obviates the need for an Adverse Change Recommendation;
and |
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|
● |
unless, by the
expiration of such three business day period, the Company Board determines
in good faith, taking into consideration any amendments to the Merger
Agreement proposed by CalAmp (after consultation with the Company
Financial Advisor and outside legal counsel), that the failure to effect
an Adverse Change Recommendation would constitute a breach of the
fiduciary duties of the Company Board under Applicable Law.
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The Company is not prohibited
from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule
14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act,
or (ii) making any disclosure to the Companys stockholders if, in the good
faith judgment of the Company Board, after consultation with outside legal
counsel, the failure to make such disclosure would constitute a breach of the
fiduciary duties of the Company Board under Applicable Law or any disclosure
requirements under Applicable Law; provided, however, that
any disclosure of a position contemplated by Rule 14d-9 or Rule 14e-2(a)
promulgated under the Exchange Act (other than a "stop, look and listen"
communication or similar communication of the type contemplated by Section
14d-9(f) promulgated under the Exchange Act) will be deemed an Adverse Change
Recommendation unless the Company Board publicly states that its recommendation
with respect to the Merger Agreement has not changed or refers stockholders to
the prior recommendation of the Company Board with respect to the Merger
Agreement.
Employee
Benefits.
For a period commencing upon
the Control Time and continuing through December 31, 2016, CalAmp has agreed to
provide each Continuing Employee with (i) base salary or base hourly rate, in
each case in an amount at least equal to the level that was provided to each
such Continuing Employee immediately prior to the Control Time, and (ii)
employee benefits (other than equity awards) that are no less favorable in the
aggregate than those provided to the Continuing Employees immediately prior to
the Control Time. In addition, (i) each Continuing Employee will be eligible to
receive certain scheduled severance benefits in the event such Continuing
Employee is terminated without cause at any time before the first anniversary of
the Control Time, (ii) CalAmp will assume and honor the terms of certain
existing scheduled agreements and (iii) CalAmp will honor certain base salary or
base hourly rate merit increases agreed by the parties.
CalAmp has also agreed to
cause the service of each Continuing Employee to be recognized for purposes of
eligibility to participate, levels of benefits (but not for benefit accruals
under any defined benefit pension plan) and vesting under each CalAmp benefit
plan in which any Continuing Employee is or becomes eligible to participate, but
solely to the extent service was credited to such employee for such purposes
under a comparable Company Employee Plan immediately prior to the Control Time
and to the extent such credit would not result in a duplication of benefits.
39
CalAmp has also agreed, with
respect to each CalAmp benefit plan that provides for dental, medical or vision
benefits in which any Continuing Employee is or becomes eligible to participate,
to use commercially reasonable efforts to cause each such CalAmp benefit plan to
(i) waive all limitations as to pre-existing conditions, waiting periods, required physical examinations and
exclusions with respect to participation and coverage requirements applicable
under such CalAmp benefit plan for such Continuing Employees and their eligible
dependents to the same extent that such pre-existing conditions, waiting
periods, required physical examinations and exclusions would not have applied or
would have been waived under the corresponding Company Employee Plan in which
such Continuing Employee was a participant immediately prior to his commencement
of participation in such CalAmp benefit plan but, with respect to long-term
disability and life insurance benefits and coverage, solely to the extent
permitted under the terms and conditions of CalAmps applicable insurance
contracts in effect as of the Control Time; and (ii) provide each Continuing
Employee and their eligible dependents with credit for any co-payments and
deductibles paid in the calendar year that, and prior to the date that, such
Continuing Employee commences participation in such CalAmp benefit plan in
satisfying any applicable co-payment or deductible requirements under such
CalAmp benefit plan for the applicable calendar year, to the extent that such
expenses were recognized for such purposes under the comparable Company Employee
Plan.
Indemnification and Insurance of the Companys Directors and
Officers.
CalAmp has agreed that, for six years after the Effective Time, CalAmp
will, or will cause the Surviving Company to, maintain officers and directors
liability insurance in respect of acts or omissions occurring on or prior to the
Effective Time covering each such person currently covered by the Companys
officers and directors liability insurance policy on terms with respect to
coverage and amount no less favorable than those of such policy in effect on the
date of the Merger Agreement; provided, that in
satisfying this obligation, neither CalAmp nor the Surviving Company will be
obligated to pay annual premiums in excess of 250% of the amount per policy
period the Company paid in its last full fiscal year prior to the date of the
Merger Agreement, and if such premiums for such insurance would at any time
exceed such maximum amount, then the Surviving Company will maintain policies of insurance that, in the Surviving Companys and CalAmps good faith judgment,
provide the maximum coverage available at an annual premium equal to such
maximum amount.
CalAmp has also agreed that, from and after the Effective Time for a
period of six years, each of CalAmp and the Surviving Company will: (i)
indemnify and hold harmless each Indemnified Party for any and all costs,
expenses (including reasonable fees and expenses of legal counsel, which shall
be advanced as they are incurred, provided that the
Indemnified Party shall have made an undertaking, if required by Applicable Law,
to repay such expenses if it is ultimately determined that such Indemnified
Party was not entitled to indemnification), judgments, fines, penalties, taxes
or liabilities (including amounts paid in settlements or compromises) imposed
upon or reasonably incurred by such Indemnified Party in connection with or
arising out of any Proceeding (A) by reason of such Indemnified Partys being or
having been such director or officer or an employee or agent of the Company or
otherwise in connection with any action taken or not taken at the request of the
Company or (B) arising out of such Indemnified Partys service in connection
with any other corporation or organization for which he or she serves or has
served as director, officer, employee, agent, trustee or fiduciary at the
request of the Company or any Subsidiary of the Company (including in any
capacity with respect to any employee benefit plan) to the fullest extent
permitted under Applicable Law; and (ii) fulfill and honor in all respects the
obligations of the Company and its Subsidiaries pursuant to: (x) each
indemnification agreement in effect between the Company or any of its
Subsidiaries and any Indemnified Party as of the date of the Merger Agreement;
and (y) any indemnification provision (including advancement of expenses) and
any exculpation provision set forth in the articles of organization, bylaws or
resolutions of the Company as in effect on the date of the Merger Agreement.
Reasonable Best Efforts.
Each
of the parties to the Merger Agreement has, subject to certain limitations,
agreed to use its reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable under
Applicable Law to consummate the transactions contemplated by the Merger
Agreement, including:
● |
the obtaining of all
necessary actions or non-actions, waivers, consents and approvals from
Governmental Bodies and the making of all necessary registrations and
filings (including filings with Governmental Bodies, if any) and the
taking of such steps as may be necessary (it being understood that the
Company and CalAmp will be obligated only to use reasonable best efforts
in so doing) to obtain an approval or waiver from, or to avoid an action
or proceeding by, any Governmental Bodies; |
40
● |
the delivery of required
notices to, and the obtaining of required consents or waivers from, Third
Parties; and |
● |
the execution and delivery of any additional
instruments necessary to consummate the Offer and the Merger and to fully
carry out the purposes of the Merger Agreement.
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Takeover Laws.
The
parties have agreed that if any Takeover Law becomes or is deemed to become
applicable to the Company, CalAmp, Purchaser, the Offer, the acquisition of
Shares pursuant to the Offer, the Top-Up Option or the Merger, then the parties
will take all action necessary to render such Takeover Law inapplicable to the
foregoing.
Other Covenants.
The
Merger Agreement contains other covenants among the parties, including covenants
relating to obtaining third party consents and regulatory approvals, stockholder
litigation, public announcements, access to information and confidentiality,
certain matters relating to Rule 14d-10(d) and Rule 16b-3 under the Exchange
Act, stock exchange delisting and deregistration of the Shares and additional
agreements.
Conditions to the
Merger.
Each
partys obligation to effect the Merger on the Closing Date is subject to
satisfaction of the following conditions:
● |
if required by law, the Shareholder Approval has been obtained; |
● |
Purchaser has accepted for payment and paid
for the Shares validly tendered and not withdrawn in the Offer;
and |
● |
there is no Order
(whether temporary, preliminary or permanent) in effect precluding,
restraining, enjoining or prohibiting consummation of the Merger and no
Applicable Law shall have been enacted or promulgated by any federal or
state Governmental Body of competent jurisdiction and remain in effect
that precludes, restrains, enjoins or prohibits the consummation of the
Merger. |
Conditions to the
Offer.
For
a description of the conditions to the Offer, see "The OfferSection
15Conditions of the Offer."
Termination of the
Merger Agreement.
The
Merger Agreement may be terminated prior to the Effective Time:
● |
by mutual written consent of CalAmp and the
Company; |
● |
by either CalAmp or the Company by written
notice to the other if a court of competent jurisdiction or other
Governmental Body has issued a final and nonappealable Order or has taken
any other action, having the effect of permanently restraining, enjoining
or otherwise prohibiting the Offer or the Merger or making consummation of
the Offer or the Merger illegal; provided, that this
right is not available to any party whose breach of any representation,
warranty, covenant or agreement set forth in the Merger Agreement has been
the cause of, or resulted in, the issuance, promulgation, enforcement or
entry of any such Order;
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41
● |
by CalAmp by written notice to the Company
if prior to the Acceptance Time the Company Board (i) has effected an
Adverse Change Recommendation, (ii) has failed to recommend against
acceptance of any tender offer or exchange offer for the Shares by a Third
Party within ten (10) business days after commencement of such offer, or
(iii) has materially breached any of its obligations described in
"No
Solicitation" above, and
such breach has resulted in an Acquisition Proposal;
|
● |
by the Company by written notice to CalAmp
if the Company fails to commence the Offer provided, that the Company may not terminate the
Merger Agreement if such failure to commence the Offer resulted from the
breach of the Merger Agreement by the Company;
|
● |
by either the Company or CalAmp if the
Acceptance Time shall not have occurred by August 1, 2016; provided, that this right is not available to any
party whose breach of any representation, warranty, covenant or agreement
set forth in the Merger Agreement has been the cause of, or resulted in,
the failure of the Acceptance Time to have occurred on or before such
date;
|
● |
by the Company by written notice to CalAmp
at any time prior to the Acceptance Time in order to accept a Superior
Proposal, and substantially concurrently with such termination the Company enters into a definitive
agreement with respect to such Superior Proposal and pays the Company
Termination Fee described below;
|
● |
by CalAmp by written notice to the Company
at any time prior to the Acceptance Time in the event of a breach by the
Company of any representation or warranty or failure to perform any
covenant or obligation contained in the Merger Agreement that would result
in any of the Offer Conditions not being satisfied; provided, that if such a breach or failure is
curable by the Company within the earlier of August 1, 2016 and twenty
business days of the date CalAmp gives the Company notice of such breach
or failure and the Company is continuing to use its reasonable best
efforts to cure such breach or failure, then CalAmp will not terminate on
account of such breach or failure unless such breach or failure remains
uncured upon the earlier of August 1, 2016 and the expiration of such
twenty business day period; provided
further, that CalAmp cannot exercise this right of
termination if either CalAmp or Purchaser is in breach of its obligations
under the Merger Agreement such that the Company is entitled to terminate;
or
|
● |
by the Company by written notice to CalAmp
at any time prior to the Acceptance Time in the event of a breach by
CalAmp or Purchaser of any representation or warranty or failure to
perform any covenant or obligation contained in the Merger Agreement that
would result in any of the Offer Conditions not being satisfied;
provided, that if such a breach or failure is
curable by CalAmp within the earlier of August 1, 2016 and twenty business
days of the date the Company gives CalAmp notice of such breach or failure
and CalAmp is continuing to use its reasonable best efforts to cure such
breach or failure, then the Company will not terminate on account of such
breach or failure unless such breach or failure remains uncured upon the
earlier of August 1, 2016 and the expiration of such twenty business day
period; provided
further, that the Company cannot exercise this
right of termination if either the Company is in breach of its obligations
under the Merger Agreement such that CalAmp is entitled to terminate.
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42
Effects of
Termination.
In
the event of termination of the Merger Agreement, the Merger Agreement will be
of no further force or effect without liability of any party (or any
Representative of such party) to each other party hereto, except that none of
CalAmp, Purchaser or the Company will be relieved or released from any
liabilities or damages arising out of its knowing or intentional breach of any
provision of the Merger Agreement or any fraud, subject only, with respect to
any such liabilities of the Company, to payment by the Company of the
termination fee described below.
Termination Fees and
Expenses.
The
Company has agreed to pay CalAmp a $4.5 million termination fee (the
"Termination
Fee") if:
● |
the Merger Agreement is terminated by CalAmp
pursuant to the third bullet point above under "Termination of the Merger
Agreement"; |
● |
the Merger Agreement is terminated by the
Company pursuant to the sixth bullet point above under "Termination of the Merger
Agreement"; or |
● |
the Merger Agreement is terminated by CalAmp
or the Company pursuant to the fifth or seventh bullet point above under
"Termination of the Merger
Agreement," after the date
of the Merger Agreement and at or prior to the time of the termination of
the Merger Agreement an Acquisition Proposal was publicly made, commenced,
submitted or announced and not withdrawn and the Company consummates an
Acquisition Proposal within twelve months after such termination or the
Company enters into a definitive agreement within twelve months after such
termination to effect an Acquisition Proposal, and such Acquisition
Proposal is later consummated (provided that, all percentages in the
definition of Acquisition Proposal will be replaced with 50% for this
purpose). |
Modification or
Amendment.
Prior to the Effective Time, the Merger Agreement may be amended with the
mutual agreement of the Company and CalAmp at any time by an instrument in
writing signed on behalf of each of the parties to the Merger Agreement, with certain amendments being subject to the approval of the Independent Directors.
Specific
Performance.
The
parties to the Merger Agreement have agreed that irreparable damage would occur
and that the parties would not have any adequate remedy at law in the event that
any of the provisions of the Merger Agreement were not performed in accordance
with their specific terms or were otherwise breached. The parties have
accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches or threatened breaches of the Merger Agreement
and to enforce specifically the terms and provisions of the Merger Agreement in
the Massachusetts Courts and, in any action for specific performance, each party
waives the defense of adequacy of a remedy at law and waives any requirement for
the securing or posting of any bond in connection with such remedy, this being
in addition to any other remedy to which they are entitled at law or in equity.
13. Purpose of the Offer; Plans for the Company; Statutory Requirements;
Short Form Merger.
Purpose of the Offer; Plans for the Company. The Offer is being made pursuant to the Merger
Agreement. The purpose of the Offer is for Parent, through Purchaser, to acquire
at least a two-thirds (66 ⅔%) of the voting interest in
the Company as the first step in acquiring 100% of the equity interests in the
Company. The Offer, as the first step in the acquisition of the Company, is
intended to facilitate the acquisition of all outstanding Shares. The purpose of
the Top-Up Option and the Merger is to acquire all outstanding Shares not
tendered and purchased pursuant to the Offer. If the Offer is successful,
Purchaser may exercise and consummate the Top-Up Option and expects to complete
the Merger as promptly as practicable. The Merger Agreement provides, among
other things, that Purchaser will be merged with and into the Company, with the
Company continuing as the Surviving Company and a wholly-owned subsidiary of
Parent. Also upon consummation of the Merger, the Merger Agreement provides
that:
● |
the articles of
organization of the Company, as in effect immediately before the effective
time of the Merger, will be amended pursuant to the filing of the articles
of merger (which includes the amendments set forth in the exhibit to the
Merger Agreement) with the Secretary of the Commonwealth of Massachusetts,
and as so amended, will be the articles of organization of the Surviving Company; |
43
● |
the bylaws of the Company will be amended at
the effective time of the Merger to read in their entirety as set forth in
the exhibit to the Merger Agreement, and as so amended, will be the bylaws
of the Surviving Company; and |
● |
the directors of Purchaser immediately
before the Effective Time will be the directors of the Surviving Company.
|
See "The OfferSection 12The
Merger Agreement."
If
you sell your Shares in the Offer, you will cease to have any equity interest in
the Company or any right to participate in its earnings and future growth. If
you do not tender your Shares, but the Merger is consummated, you also will no
longer have an equity interest in the Surviving Company. Similarly, after
selling your Shares in the Offer or the exchange of your Shares in the
subsequent Merger, you will not bear the risk of any decrease in the value of
the Company or Surviving Company, as applicable.
If
Purchaser acquires at least 90% of the outstanding Shares pursuant to the Offer
and the Top-Up Option, if applicable, the Merger may be consummated without
action of the Company's stockholders. After careful consideration, the Company Board has unanimously
recommended that the Company's stockholders accept the Offer, tender their Shares into the Offer and, to
the extent required by applicable law, approve the Merger
Agreement.
Except as provided in the Letter of Transmittal, this Offer does not
constitute a solicitation of proxies, and Purchaser is not soliciting proxies at
this time.
If
Purchaser accepts Shares for payment, promptly after such time, Purchaser will
become entitled to designate such number of directors, rounded up to the nearest
whole number, on Company Board (the "Purchaser Designees"),
as will give Purchaser representation on the Company Board equal to the product
of (x) the total number of members on the Company Board (after giving effect to
the directors elected pursuant to this sentence) multiplied by (y) the
percentage that the number of Shares beneficially owned by CalAmp or Purchaser
at such time (including Shares accepted for payment) bears to the total number
of Shares then outstanding on a fully diluted basis. The Company will also, upon
CalAmps request, to the extent permitted by the applicable requirements of the
SEC and NASDAQ, use commercially reasonable efforts to cause Purchaser Designees
to constitute at least the same percentage (rounded up to the next whole number)
as is on the Company Board of (i) each committee of the Company Board; (ii)
each board of directors (or similar body) of each wholly-owned Subsidiary of the
Company; and (iii) each committee (or similar body) of each such board.
Notwithstanding the foregoing, at least three of the members of the
Company Board will, at all times prior to the Effective Time, be directors of
the Company who were directors of the Company on the date of the Merger
Agreement and who qualify as independent directors for purposes of the continued
listing requirements of NASDAQ.
The
purpose of any exercise by Purchaser of the Top-Up Option following completion
of the Offer would be to acquire an additional number of Shares sufficient to
permit Purchaser to effect a "short-form" merger in accordance with the
applicable provisions of the MBCA and to thereby acquire the remaining
outstanding ownership interests in the Company without requiring a vote of the
stockholders of the Company. Although Purchaser currently intends to purchase
Shares pursuant to the Top-Up Option to the extent necessary for this purpose,
there can be no assurance that Purchaser will ultimately do so.
44
Statutory Requirements; Short Form Merger. The MBCA provides that if a Massachusetts parent
company owns at least 90% of each class of outstanding voting shares of a
subsidiary, the parent company can effect a short-form merger with that
subsidiary without the action of the board of directors or the other
stockholders of the subsidiary. Accordingly, if as a result of the Offer,
exercise of the Top-Up Option or otherwise, Purchaser directly or indirectly
owns at least 90% of the outstanding Shares, CalAmp and Purchaser expect to
effect the Merger as a "short-form merger" pursuant to Section 11.05 of the
MBCA, as soon as practicable. Under such circumstances, neither the approval of
any holder of Shares other than Purchaser, or of the Company Board, would be
required. Even if CalAmp and Purchaser do not own 90% of the outstanding Shares
following consummation of the Offer and the Top-Up Option, CalAmp and Purchaser
could seek to purchase additional Shares in the open market, from the Company or
otherwise in order to reach the 90% threshold and effect a short-form merger.
The price per Share that may be paid for any Shares so acquired may be greater
or less than that paid in the Offer. We also reserve the right to dispose of
Shares that we have acquired or may acquire.
14. Dividends and Distributions.
If,
between the date of this Offer to Purchase and the effective time of the Merger,
any change in the outstanding shares of capital stock of the Company occurs by
reason of any reclassification, recapitalization, stock split (including reverse
stock split) or combination, exchange or readjustment of shares, or any stock
dividend, the Offer Price, Merger Consideration and any other amounts payable
pursuant to the Offer and the Merger Agreement will be appropriately adjusted.
15. Conditions of the Offer.
Capitalized terms used in this "The OfferSection 15Conditions
of the Offer," but not defined herein have the respective meanings given to them
in the Merger Agreement.
Notwithstanding any other provisions of the Offer, but subject to the
terms and conditions set forth in the Merger Agreement, we are not required to
accept for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchasers
obligation to pay for or return tendered Shares promptly after termination or
expiration of the Offer), pay for any Shares validly tendered and not withdrawn,
if immediately prior to the Expiration Time:
(i) there has not been validly tendered and not
validly withdrawn such number of Shares that, considered together with all other
Shares (if any) then beneficially owned by Parent, Purchaser and their
controlled Affiliates (excluding any Shares tendered pursuant to guaranteed
delivery procedures that have not yet been delivered in settlement or
satisfaction of such guarantees), represent at least two-thirds (66 ⅔%) of
the total number of outstanding Shares on a fully diluted basis (such condition
in this subsection (i), the "Minimum Condition");
(ii) any applicable waiting period (or any extension
thereof) or approval under the HSR Act or other Antitrust Laws has not expired
or been terminated or obtained (which applicable waiting period under the HSR Act has expired);
(iii) any of the following conditions exists:
(1)
a Governmental Body has enacted, issued, promulgated, enforced or entered any
Applicable Law or Order which is then in effect and has the effect of enjoining
or otherwise preventing or prohibiting the making of the Offer or the
consummation of the Offer or the Merger;
(2)
there is pending any Legal Proceeding by any Governmental Body that seeks to
make illegal or otherwise prohibit the consummation of the Offer or the Merger
(which will remain subject to Section 6.1 of the Merger Agreement);
45
(3)
(A) the representations and warranties of the Company set forth in Section
3.5(c) of the Merger Agreement are not true and correct as of the date of the
Merger Agreement and as of the Expiration Time as though made on and as of such
date or time, (B) the representations and warranties of the Company set forth in
the first sentence of each of Sections 3.2(a) and (c) of the Merger Agreement
are not true and correct as of the date of the Merger Agreement (in each case,
other than de
minimis inaccuracies) (except to
the extent that any such representation and warranty expressly speaks as of an
earlier date, in which case such representation and warranty need only be true
and correct other than de
minimis inaccuracies as of such
earlier date) and (C) the representations and warranties set forth in Sections
3.2(e), 3.21(a) and (c) and 3.22, and in the first sentence of each of Sections
3.1(a) and (c), of the Merger Agreement are not true and correct in all material
respects as of the date of the Merger Agreement and as of the Expiration Time as
though made on and as of such date or time (except to the extent that any such
representation and warranty expressly speaks as of an earlier date, in which
case such representation and warranty need only be true and correct in all
material respects as of such earlier date);
(4)
the other representations and warranties of the Company set forth in the Merger
Agreement are not true and correct as of the date of the Merger
Agreement and as of the Expiration Time as though made on
and as of such date or time (except to the extent that any such representation
and warranty expressly speaks as of an earlier date, in which case such
representation and warranty need only be true and correct as of such earlier
date), except where the failure of such representations and warranties to be so
true and correct (disregarding all qualifications or limitations as to
"materiality," "Company Material Adverse Effect" or words of similar import)
would not, individually or in the aggregate, have a Company Material Adverse
Effect;
(5)
the Company has breached or failed to perform in all material respects the
agreements and covenants required to be performed by it under the Merger
Agreement, and such breach or failure to perform has not been cured to the good
faith satisfaction of Parent; or
(6)
Parent and Purchaser have not received a certificate executed on behalf of the
Company by an authorized officer confirming that the conditions set forth in
clauses (3), (4) and (5) of this subsection (iii) have been satisfied; or
(iv) the Merger Agreement has been terminated in
accordance with its terms.
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 conditions and may be waived by Parent or Purchaser in whole or in part
at any time and from time to time in their sole discretion (except for the
Minimum Condition), in each case subject to the terms of the Merger Agreement
and the applicable rules and regulations of the SEC. The failure by Parent or
Purchaser at any time to exercise any of the foregoing rights will not be deemed
a waiver of any such right and each such right will be deemed an ongoing right
which may be asserted at any time and from time to time.
Consummation of the Offer is not conditioned upon any financing
arrangements or subject to a financing condition.
16. Certain Legal Matters; Regulatory Approvals; Appraisal Rights.
General. Based on our
examination of publicly available information filed by the Company with the SEC
and other publicly available information concerning the Company, we are not
aware of any governmental license or regulatory permit that appears to be
material to the Company's business that might be adversely affected by our
acquisition of Shares pursuant to the Offer or, except as set forth below, of
any approval or other action by any government or governmental administrative or
regulatory authority or agency, domestic or foreign, that would be required for
our acquisition or ownership of Shares pursuant to the Offer. Should any such
approval or other action be required or desirable, we currently contemplate
that, except as described below under "Other State Takeover Statutes," such
approval or other action will be sought. Except as described below under
"Antitrust," there is, however, no current intent to delay the purchase of
Shares tendered pursuant to the Offer pending the outcome of any such matter.
There can be no assurance that any such approval or other action, if needed,
would be obtained (with or without substantial conditions), or that, if such
approvals were not obtained or such other actions were not taken, adverse
consequences might not result to the Company's business or certain parts of the
Company's business might not have to be disposed of, any of which could cause
Purchaser to elect to terminate the Offer without the purchase of Shares
thereunder under certain conditions and subject to the terms of the Merger Agreement. See "The OfferSection 15Conditions of the
Offer."
46
Massachusetts Takeover Statutes. The Company is incorporated under the laws of the Commonwealth of
Massachusetts and is subject to (i) Chapter 110C of the Massachusetts General
Laws, which requires the person commencing a takeover bid, defined to include
any acquisition of or offer to acquire equity securities of a target company
that would result in the offeror beneficially owning more than 10% of the issued
and outstanding equity securities of the target company, to file certain
information with the Secretary of the Commonwealth and the target company and
provides that a person who beneficially owns more than 5% of the stock of a
Massachusetts corporation may not make a takeover bid if during the preceding
year such person acquired any of the subject corporations stock and failed to
disclose their intent to gain control of the corporation; (ii) Chapter 110D of
the Massachusetts General Laws, which regulates control share acquisitions; and
(iii) Chapter 110F of the Massachusetts General Laws, which prohibits a
publicly-held Massachusetts corporation from engaging in a business combination
with an interested stockholder for a period of three years after the date of the
transaction in which the person becomes an interested stockholder, unless
certain conditions are met.
The
Company has represented that the Company Board (i) has approved and adopted the
Merger Agreement and the transactions
contemplated thereby; and (ii) has taken and will take all actions necessary to
render Chapters 110C, 110D and 110F of the Massachusetts General Laws
inapplicable to the Merger Agreement, the Offer, the Merger and the other
transactions contemplated by the Merger Agreement.
Other State Takeover Statutes. A number of states have adopted laws which purport, to varying degrees,
to apply to attempts to acquire corporations that are incorporated in, or which
have substantial assets, stockholders, principal executive offices or principal
places of business or whose business operations otherwise have substantial
economic effects in, such states. The Company, directly or through subsidiaries,
conducts business in a number of states throughout the United States, some of
which have enacted such laws. Except as described herein, we do not know whether
any of these laws will, by their terms, apply to the Offer or the Merger, and we
have not made efforts to comply with any such laws. To the extent that certain
provisions of these laws purport to apply to the Offer or the Merger, we believe
that there are reasonable bases for contesting such laws.
In
1982, in Edgar v. MITE
Corp., the Supreme Court of the
United States invalidated on constitutional grounds the Illinois Business
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 could, as a matter of corporate law, constitutionally
disqualify a potential acquiror from obtaining voting rights in shares of a
target corporation without the prior approval of the remaining stockholders
where, among other things, the corporation is incorporated, and has a
substantial number of stockholders, in the state. Subsequently,
in TLX Acquisition Corp. v. Telex
Corp., a U.S. federal district
court in Oklahoma ruled that the Oklahoma statutes were unconstitutional as
applied to corporations incorporated outside Oklahoma in that they would subject
such corporations to inconsistent regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a U.S. federal district court in Tennessee ruled
that four Tennessee takeover statutes were unconstitutional as applied to
corporations incorporated outside Tennessee. This decision was affirmed by the
United States Court of Appeals for the Sixth Circuit. In December 1988, a U.S.
federal district court in Florida held in Grand Metropolitan PLC v. Butterworth that the provisions of the Florida Affiliated
Transactions Act and the Florida Control Share Acquisition Act were
unconstitutional as applied to corporations incorporated outside of Florida.
If
any government official or third party seeks to apply any state takeover law to
the Offer or the Merger, we will take such action as then appears desirable,
which action may include challenging the applicability or validity of such
statute in appropriate court proceedings. If it is asserted that one or more
state takeover statutes are applicable to the Offer or the Merger and an
appropriate court does not determine that they are inapplicable or invalid as
applied to the Offer or the Merger, we might be required to file certain
information with, or to receive approvals from, the relevant state authorities
or holders of Shares, and we may be unable to accept for payment or pay for
Shares tendered pursuant to the Offer, or be delayed in continuing or
consummating the Offer and the Merger. In such case, we may not be obligated to
accept for payment or pay for any tendered Shares. See "The OfferSection
15Conditions of the Offer."
47
Antitrust. Under the HSR
Act and the rules that have been promulgated thereunder by the FTC, certain
acquisition transactions may not be consummated unless certain information has
been furnished to the Antitrust Division of the Department of Justice (the
"Antitrust
Division") and the FTC and
certain waiting period requirements have been satisfied. The purchase of Shares
pursuant to the Offer is subject to such requirements.
Pursuant to the requirements of the HSR Act, we
filed a Notification and Report Form with respect to the Offer with the Antitrust Division and the FTC on February 8, 2016.
On February 12, 2016, the Federal Trade Commission granted early termination of the waiting period under the HSR Act
applicable to the Offer and the Merger. With such early termination, the condition of the Offer relating to the expiration or
termination of the HSR Act waiting period has been satisfied.
At
any time before or after the consummation of any such transactions, 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 or seeking divestiture of
the Shares so acquired or divestiture of our or the Company's substantial
assets. Private parties and individual states may also bring legal action under
the antitrust laws. There can be no assurance that a challenge to the Offer on
antitrust grounds will not be made, or if such a challenge is made, what the
result will be. See "The OfferSection 15Conditions of the Offer" for certain
conditions to the Offer, including conditions with respect to litigation and
certain governmental actions. Shares will not be accepted for payment or paid
for pursuant to the Offer if, before or after the expiration of the applicable
waiting period under the HSR Act, the Antitrust Division, the FTC, a state or
other governmental body has commenced a proceeding that seeks to make illegal or
otherwise prohibit the consummation of the Offer or the Merger. See "The
OfferSection 15Conditions of the Offer."
Appraisal Rights. You do
not have appraisal rights as a result of the Offer.
In
addition, you may not have appraisal rights if the Merger is consummated
following consummation of the Offer. Section 13.02(a)(1) of the MBCA generally
provides that stockholders of a Massachusetts corporation are entitled to
appraisal rights in the event of a merger, but contains an exception for
transactions where cash is the sole consideration received by the stockholder
and certain other conditions are met. In addition,
Section 13.02 of the MBCA has not yet been the subject of judicial
interpretation. In the event of the Merger, any stockholder of the Company
believing it is entitled to appraisal rights and wishing to preserve such rights
should carefully review Sections 13.01 through 13.31 of Part 13 of the MBCA,
which set forth the procedures to be complied with in perfecting any such
rights. Failure to strictly comply with the procedures set forth in Part 13 of
the MBCA may result in the loss of any appraisal rights to which such
stockholder otherwise may be entitled.
If
any holder of Shares who demands appraisal under Part 13 of the MBCA fails to
perfect, or effectively withdraws or loses its rights to appraisal as provided
in the MBCA, the Shares of such stockholder will be converted into the right to
receive the price per Share paid in the Merger. A stockholder may withdraw its
demand for appraisal by delivering to the Company a written withdrawal of its demand for
appraisal and acceptance of the Merger. A stockholders right to obtain payment
for the fair value of its shares will also terminate if the Merger is abandoned
or rescinded, if a court having jurisdiction permanently enjoins or sets aside
the Merger, or if the stockholders demand for payment is withdrawn with the
consent of the Company.
In
light of the complexity of Part 13 of the MBCA, any stockholders of the Company
wishing to pursue appraisal rights with respect to the Merger, if available, should consult
their legal advisors.
The foregoing summary of appraisal rights under the MBCA does not purport
to be a complete statement of law pertaining to appraisal rights under the MBCA
or of the procedures to be followed by the Company's stockholders of desiring to
exercise any appraisal rights available thereunder and is qualified in its
entirety by reference to the MBCA.
Additional notices regarding appraisal rights, if required, will be sent to
non-tendering holders of Shares in connection with the completion of the Merger.
48
Going Private Transactions. The SEC has adopted Rule 13e-3 under the Exchange Act which is applicable
to certain "going private" transactions. This rule may, under certain
circumstances, be applicable to the Merger or another business combination
between Purchaser (or its affiliates) and the Company following consummation of
the Offer; however, based on Purchaser's current expectations with
respect to the Company, Purchaser does not believe that Rule 13e-3 will be
applicable. If applicable, Rule 13e-3 would require, among other things, that
certain financial information concerning the Company and certain information
relating to the fairness of the proposed transaction and the consideration
offered to minority stockholders in the proposed transaction be filed with the
SEC and disclosed to stockholders prior to consummation of the proposed
transaction.
17. Legal Proceedings.
As of the date of this Offer to Purchase, we
are not aware of any legal proceedings relating to the Offer.
18. Fees and Expenses.
We
have retained D.F. King & Co., Inc. to act as the Information Agent and
Computershare Trust Company, N.A. to act as the Depositary in connection with
the Offer. The Information Agent may contact holders of Shares by mail,
telephone and personal interviews and may request brokers, dealers, banks, trust
companies and other nominees to forward materials relating to the Offer to
beneficial owners. The Information Agent and the Depositary each will receive
reasonable and customary compensation for their respective services, will be
reimbursed for certain reasonable out-of-pocket expenses, and will be
indemnified against certain liabilities in connection therewith, including
certain liabilities under the U.S. federal securities laws.
We
will not pay any fees or commissions to any broker or dealer or any other person
(other than the Information Agent and the Depositary) for soliciting tenders of
Shares pursuant to the Offer. Brokers, dealers, banks, trust companies and other
nominees will, upon request, be reimbursed by us for reasonable and necessary
costs and expenses incurred by them in forwarding materials to their customers.
19. Miscellaneous.
The
Offer is not being made to, nor will tenders be accepted from or on behalf of,
holders of Shares in any jurisdiction in which the making of the Offer or
acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, we may, in our sole discretion, take such action as we
may deem necessary to make the Offer in any such jurisdiction and extend the
Offer to holders of Shares in such jurisdiction.
No person has been authorized to give any information or make any
representation on behalf of CalAmp or Purchaser not contained in this Offer to
Purchase or in the Letter of Transmittal and, if given or made, such information
or representation must not be relied upon as having been authorized.
Purchaser has filed with the SEC a Tender Offer Statement on Schedule TO
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits furnishing
certain additional information with respect to the Offer, and may file
amendments thereto. In addition, the Company will file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9, together with exhibits,
pursuant to Rule 14d-9 under the Exchange Act, setting forth the recommendation
of the Company Board with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. A copy of
such documents, and any amendments thereto, may be examined at, and copies may
be obtained from, the SEC in the manner set forth under "The OfferSection
9Certain Information Concerning Purchaser and CalAmp."
Lexus Acquisition Sub,
Inc.
February 16, 2016
49
SCHEDULE
I
DIRECTORS AND EXECUTIVE
OFFICERS OF CALAMP AND PURCHASER
DIRECTORS AND EXECUTIVE
OFFICERS OF CALAMP
The name, current principal
occupation or employment, and material occupations, positions, offices or
employment for the past five (5) years of each director and executive officer of
CalAmp and Purchaser are set forth below. The business address of each director
and officer is c/o CalAmp Corp., 1401 N Rice Ave, Oxnard, California 93030 and the business telephone number
of each director and officer is (805) 987-9000. Unless otherwise indicated, each
occupation set forth opposite an individuals name refers to employment with
CalAmp. None of the directors and officers of CalAmp listed below has, during
the past five (5) years, (i) been convicted in a criminal proceeding or (ii)
been a party to any judicial or administrative proceeding that resulted in a
judgment, decree or final order enjoining the person from future violations of,
or prohibiting activities subject to, U.S. federal or state securities laws, or
a finding of any violation of U.S. federal or state securities laws. All
directors and officers listed are citizens of the United States. No director or
officer of CalAmp has engaged in any transaction or material contract with the
Company or its affiliates in the past two years. No director or officer of
CalAmp is the beneficial owner of shares of the Company's stock, and no director
or officer of CalAmp has engaged in a transaction involving the securities of
the Company in the past 60 days.
BOARD OF DIRECTORS AND
EXECUTIVE OFFICERS
Name |
|
Current Principal
Occupation or Employment and Five-Year Employment History |
A.J. Moyer, Chairman of the Board of
Directors |
|
A.J. "Bert" Moyer, a
director of CalAmp since 2004, is currently a business consultant and
private investor. He previously served as Executive Vice President and
Chief Financial Officer of QAD Inc., a publicly held software company that
is a provider of enterprise resource planning software applications, from
1998 until 2000. Prior to joining QAD in 1998, Mr. Moyer served as Chief
Financial Officer of Allergan Inc., a specialty pharmaceutical company
based in Irvine, California, from 1995 to 1998. Earlier in his career Mr.
Moyer served as Chief Financial Officer of Western Digital, National
Semiconductor and Coldwell Banker. Mr. Moyer currently serves on the
boards of Collectors Universe, Inc., a company engaged in authentication
and grading services for high-end collectibles, and MaxLinear, Inc., a
provider of semiconductor products for broadband communications. During
the past five years he has also served on the boards of Virco
Manufacturing Corporation, RedFlex Holdings Limited, Lasercard and Occam
Networks. Mr. Moyer received a BS degree in Finance from Duquesne
University and graduated from the Advanced Management Program at the
University of Texas, Austin. Mr. Moyer holds a Masters Professional
Director Certification from the American College of Corporate Directors, a
national public company director education and credentialing organization.
|
Kimberly Alexy, Director |
|
Kimberly Alexy was
appointed a director of CalAmp in 2008. She is the Principal of Alexy
Capital Management, a private investment management firm that she founded
in 2005. From 1998 to 2003, she was senior vice president and managing
director of equity research for Prudential Securities, where she served as
principal technology hardware analyst for the firm. Prior to joining
Prudential, Ms. Alexy was vice president of equity research at Lehman
Brothers, where she covered the computer hardware sector, and assistant
vice president of corporate finance at Wachovia Bank. Ms. Alexy currently
serves on the board of directors of Five9, Inc., VIZIO Holdings, Inc., and
FireEye, Inc. During the past five years, Ms. Alexy also served on the
boards of Dot Hill Systems Corp., SouthWest Water Company and SMART
Modular Technologies (WWH), Inc. Ms. Alexy is a Chartered Financial
Analyst (CFA), and holds a BA degree in Psychology from Emory University
and an MBA with a concentration in Finance and Accounting from the College
of William and Mary. |
50
Name |
|
Current Principal
Occupation or Employment and Five-Year Employment History |
Jeffery Gardner, Director |
|
Jeffery Gardner was
appointed a director of CalAmp effective January 1, 2015. He is the
President and Chief Executive Officer of Monitronics Security, the
nations second-largest residential security provider. Mr. Gardner
currently serves on the board of Qorvo, Inc., the company created by the
combination of RF Micro Devices, Inc. and TriQuint Semiconductor, Inc. in
December 2014. Prior to that Mr. Gardner served on the board of RF Micro
Devices since 2004. In addition, from 2005 until February 2015, Mr.
Gardner was a director of Windstream Corporation ("Windstream"), a leading
provider of advanced network communications and technology solutions,
including cloud computing and managed services. Mr. Gardner also served as
the President and Chief Executive Officer of Windstream from 2005 until
December 2014. Before joining Windstream, Mr. Gardner served as Executive
Vice President and Chief Financial Officer of Alltel Corp. Earlier, Mr.
Gardner held a variety of senior management positions at 360
Communications, which merged with Alltel in 1998. Mr. Gardner received a
Bachelor of Arts degree in Finance from Purdue University and an MBA
degree from The College of William and Mary. He is currently a National
Association of Corporate Directors Board Leadership Fellow, and he
previously served on several national associations including the Business
Roundtable and the United States Telecom Association. |
Amal
Johnson, Director |
|
Amal Johnson was
appointed a director of CalAmp in December 2013. Ms. Johnson is currently the Executive
Chairman of Author-IT Inc., a Software as a Service private company that
provides a platform for creating, maintaining, and distributing
single-sourced technical content. Prior to joining Author-IT, Ms. Johnson
led MarketTools, Inc. a software and services company as Chief Executive
Officer from 2005 to 2008, and then as Chairman of the Board until the
company was acquired in January 2012. Prior to MarketTools, Ms. Johnson
was a general partner at Lightspeed Venture Partners, focusing on
enterprise software and infrastructure, from March 1999 to March 2004.
Previously, Ms. Johnson was President of Baan Supply Chain Solutions,
President of Baan Affiliates, and President of Baan Americas, from October
1994 to January 1999. Prior to that, Ms. Johnson served as President of
ASK Manufacturing Systems from August 1993 to July 1994 and held executive
positions at IBM from 1977 to June 1993. Ms. Johnson holds a BA degree in
Mathematics from Montclair State University and studied Computer Science
at Stevens Institute of Technology graduate school of engineering. Ms.
Johnson also serves as a director of Intuitive Surgical, Inc. and Mellanox
Technologies, Ltd. |
Jorge
Titinger, Director |
|
Jorge Titinger was
appointed a director of CalAmp in June 2015. Mr. Titinger currently serves
as President, Chief Executive Officer and a member of the board of
directors of Silicon Graphics International Corp., a position he has held
since February 2012. Mr. Titinger served as President, Chief Executive
Officer and board member of Verigy Ltd. from January 2011 until October
2011, as President and Chief Operating Officer from July 2010 to January
2011, and as Chief Operating Officer from June 2008 to July 2010. Verigy
was acquired by Advantest Corporation in July 2011 and Mr. Titinger
continued to serve in a transitional role following the acquisition until
October 2011 as President and Chief Executive Office of Verigy, then a
subsidiary of Advantest Corporation. Prior to his service at Verigy, Mr.
Titinger held executive positions at FormFactor, Inc. from November 2007
to June 2008 and KLA-Tencor Corporation from December 2002 to November
2007. In addition to serving as a director of Silicon Graphics, Mr.
Titinger currently serves on the board of Xcerra Corporation. Mr. Titinger
holds BS and MS degrees in Electrical Engineering and an MS degree in
Engineering Management, all from Stanford University.
|
51
Name |
|
Current Principal
Occupation or Employment and Five-Year Employment History |
Larry Wolfe, Director |
|
Larry Wolfe was
appointed a director of CalAmp in 2008. From 2006 to 2010, Mr. Wolfe was
the President and Chief Executive Officer of Taxcient, Inc., a privately
held provider of sales and use tax compliance software and services that
merged with Avalara, Inc. in 2010. In conjunction with this merger, Mr.
Wolfe joined Avalara's Board and served as a director of that company
until April 2014. Mr. Wolfe also served as a director of QAD Inc. from
2002 to 2006. From 1987 until 2001, Mr. Wolfe was employed by Intuit Inc.
and certain predecessor companies, most recently as senior vice president
responsible for the tax division. In addition to his role as senior vice
president, Mr. Wolfe was vice president and general manager of Intuit's
Personal Tax Group where he guided the successful launch of the online
version of TurboTax for web-based tax return preparation and filing
services. Mr. Wolfe is also a former board member of the San Diego
Software Industry Council. Earlier in his career, Mr. Wolfe was a managing
partner at two certified public accounting firms, Wolfe & Co. and
Strand Wolfe & Lutton. He began his career at the accounting firm
Deloitte Haskins & Sells, where he earned his CPA license. Mr. Wolfe
received a BS degree in Business Administration from the University of
Southern California. |
Michael
Burdiek, Director, President and Chief Executive Officer |
|
Michael Burdiek joined
CalAmp in June 2006 and was appointed President of CalAmps Wireless
DataCom segment in March 2007. He was appointed Chief Operating Officer of
CalAmp in June 2008 and was promoted to President and Chief Operating
Officer in April 2010. Effective June 1, 2011, Mr. Burdiek was appointed
President and Chief Executive Officer of CalAmp and was also appointed to
the Board of Directors. Mr. Burdiek also serves on the board of directors
of Five9, a leading provider of cloud contact center software. Prior to
joining CalAmp, Mr. Burdiek was the President and Chief Executive Officer
of Telenetics Corporation, a manufacturer of data communications products.
From 1987 to 2003, Mr. Burdiek held a variety of technical and executive
management roles with Comarco, Inc., a provider of test solutions to the
wireless industry. Mr. Burdiek began his career as a design engineer with
Hughes Aircraft Company. He holds MBA and MSEE degrees from California
State University - Fullerton, and a BS degree in Electrical Engineering
from Kansas State University. |
Richard
Vitelle, Executive Vice President, Chief Financial Officer
and Corporate Secretary |
|
Rick Vitelle joined
CalAmp in 2001 and currently serves as Executive Vice President, Chief
Financial Officer and Corporate Secretary. Prior to joining CalAmp, Mr.
Vitelle served as Vice President of Finance and Administration and Chief
Financial Officer of SMTEK International Inc. (formerly known as DDL
Electronics Inc.). Earlier in his career, Mr. Vitelle served as a senior
manager with Price Waterhouse where he managed financial statement audit
engagements for publicly traded companies, privately held businesses and
large, complex governmental entities. Mr. Vitelle graduated summa cum
laude with a bachelors degree in business administration from California
State Polytechnic University, Pomona. He also holds a masters degree in
business administration from the University of California, Los Angeles. He
has been licensed as a certified public accountant in the state of
California since 1979. |
Garo
Sarkissian, Senior Vice President Corporate Development |
|
Garo Sarkissian joined
CalAmp in 2005 and currently serves as Senior Vice President Corporate
Development. Prior to joining CalAmp, Mr. Sarkissian served as Principal
and Vice President of Business Development for Global Technology
Investments, a private equity firm, from 2003 to 2005. From 1999 to 2003,
he held senior management and business development roles at California
Eastern Laboratories, a private company developing and marketing radio
frequency, microwave and optical components. Mr. Sarkissian began his
career as an RF engineer in 1988 and developed state-of-the-art RF power
products over a span of 10 years for M/A Com and NEC. Mr. Sarkissian holds
a masters degree in business administration from INSEAD in Fontainebleau,
France; a masters degree in electrical engineering from the University of
California, Irvine; and a bachelors degree in electrical and computer
engineering from California State Polytechnic University, Pomona.
|
52
DIRECTORS AND EXECUTIVE
OFFICERS OF PURCHASER
BOARD OF DIRECTORS AND
EXECUTIVE OFFICERS
Name |
|
Current Principal
Occupation or Employment and Five-Year Employment History |
Michael Burdiek, President |
|
Michael Burdiek joined
CalAmp in June 2006 and was appointed President of CalAmps Wireless
DataCom segment in March 2007. He was appointed Chief Operating Officer of
CalAmp in June 2008 and was promoted to President and Chief Operating
Officer in April 2010. Effective June 1, 2011, Mr. Burdiek was appointed
President and Chief Executive Officer of CalAmp and was also appointed to
the Board of Directors. Mr. Burdiek also serves on the board of directors
of Five9, a leading provider of cloud contact center software. Prior to
joining CalAmp, Mr. Burdiek was the President and Chief Executive Officer
of Telenetics Corporation, a manufacturer of data communications products.
From 1987 to 2003, Mr. Burdiek held a variety of technical and executive
management roles with Comarco, Inc., a provider of test solutions to the
wireless industry. Mr. Burdiek began his career as a design engineer with
Hughes Aircraft Company. He holds MBA and MSEE degrees from California
State University - Fullerton, and a BS degree in Electrical Engineering
from Kansas State University. |
Richard Vitelle,
Chief Financial Officer, Treasurer and Secretary |
|
Rick Vitelle joined
CalAmp in 2001 and currently serves as Executive Vice President, Chief
Financial Officer and Corporate Secretary. Prior to joining CalAmp, Mr.
Vitelle served as Vice President of Finance and Administration and Chief
Financial Officer of SMTEK International Inc. (formerly known as DDL
Electronics Inc.). Earlier in his career, Mr. Vitelle served as a senior
manager with Price Waterhouse where he managed financial statement audit
engagements for publicly traded companies, privately held businesses and
large, complex governmental entities. Mr. Vitelle graduated summa cum
laude with a bachelors degree in business administration from California
State Polytechnic University, Pomona. He also holds a masters degree in
business administration from the University of California, Los Angeles. He
has been licensed as a certified public accountant in the state of
California since 1979. |
53
The Depositary for the
Offer is:
By First Class Mail: |
By Facsimile: |
By Registered, Certified or
Express |
Computershare |
For Eligible
Institutions Only: |
Mail, or Overnight Courier: |
c/o
Voluntary Corporate Actions |
(617)
360-6810 |
Computershare |
P.O. Box
43011 |
|
c/o
Voluntary Corporate Actions |
Providence,
RI 02940-3011 |
Confirm
Facsimile Transmission: |
250 Royall
Street, Suite V |
|
(781)
575-2332 |
Canton, MA
02021 |
Questions or requests for
assistance may be directed to the Information Agent at the telephone numbers,
address and/or email addresses set forth below. Requests for copies of this
Offer to Purchase, the related Letter of Transmittal, the Notice of Guaranteed
Delivery and all other related materials may be directed to the Information
Agent or your bank, broker firm, dealer, trust company or other nominee, and
copies will be furnished promptly at Purchasers expense. Stockholders may also
contact their bank, broker firm, dealer, trust company or other nominee for
assistance concerning the Offer.
The Information Agent
for the Offer is:
D.F. King & Co.,
Inc.
48 Wall Street, 22nd Floor
New York, New York
10005
Bankers and Brokers Call
Collect: (212) 269-5550
All Others Call Toll Free: (866) 828-0221
Email:
lojack@dfking.com
54
Exhibit (a)(1)(B)
Letter of Transmittal to
Tender Shares of Common Stock
of
LOJACK
CORPORATION
at $6.45 Net
Per Share in Cash Pursuant to the Offer to Purchase dated February 16, 2016 by
Lexus Acquisition Sub,
Inc., a wholly-owned
subsidiary of CalAmp Corp.
The undersigned represents
that I (we) have full authority to surrender without restriction the
certificate(s) listed below. You are hereby authorized and instructed to deliver
to the address indicated below (unless otherwise instructed in the boxes in the
following page) a check representing a cash payment for shares of common stock,
par value $0.01 per share, of LoJack Corporation (LoJack) (collectively, the Shares) tendered pursuant to this Letter of Transmittal
(this Letter of
Transmittal), at a price
of $6.45 per share, net to the seller in cash, without interest and less any
applicable withholding taxes, upon the terms and subject to the conditions set
forth in this Letter of Transmittal and the related Offer to Purchase dated
February 16, 2016 (the Offer to Purchase
which, together with this Letter of Transmittal, as each may be amended or
supplemented from time to time, collectively constitute the
Offer).
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME, ON MONDAY, MARCH 14, 2016 (ONE MINUTE AFTER 11:59
P.M., EASTERN TIME, ON MONDAY, MARCH 14, 2016), UNLESS THE OFFER IS
EXTENDED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE EXPIRATION DATE). |
Method of delivery of the
certificate(s) is at the option and risk of the owner thereof. See Instruction 2.
Mail or deliver this Letter
of Transmittal, together with the certificate(s) representing your shares, to
the Depositary for this Offer:
By First Class Mail: |
|
By
Registered, Certified or Express |
Computershare |
|
Mail, or Overnight Courier: |
c/o
Voluntary Corporate Actions |
|
Computershare |
P.O. Box
43011 |
|
c/o
Voluntary Corporate Actions |
Providence,
RI 02940-3011 |
|
250 Royall
Street, Suite V |
|
|
Canton, MA
02021 |
Pursuant to the Offer of Lexus
Acquisition Sub, Inc. to purchase all outstanding Shares of LoJack, the
undersigned encloses herewith and surrenders the following Share Certificates:
DESCRIPTION OF SHARES
SURRENDERED |
Name(s)
and Address(es) of Registered Owner(s) (If blank, please fill in exactly as name(s)
appear(s) on share certificate(s)) |
Shares
Surrendered (attached additional list if necessary) |
|
Certificated
Shares** |
|
Certificate Number(s)* |
Total
Number of Shares Represented by Certificate(s)* |
Number
of Shares Surrendered** |
Book
Entry Shares Surrendered |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Shares |
|
|
|
|
* Need
not be completed by book-entry shareholders. ** Unless otherwise indicated, it will be
assumed that all shares of common stock represented by certificates
described above are being surrendered hereby.
|
CORPORATE
ACTIONS VOLUNTARY COY CALC |
1 |
ALL QUESTIONS REGARDING THE
OFFER SHOULD BE DIRECTED TO THE INFORMATION AGENT, D.F. KING & CO., INC., AT
THE ADDRESS AND TELEPHONE NUMBERS SET FORTH ON THE BACK COVER PAGE OF THE OFFER
TO PURCHASE.
DELIVERY OF THIS LETTER OF
TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE FOR THE DEPOSITARY WILL
NOT CONSTITUTE A VALID DELIVERY.
THIS LETTER OF TRANSMITTAL AND
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
THE UNDERSIGNED TENDERS ALL
UNCERTIFICATED SHARES THAT MAY BE HELD IN THE NAME OF THE REGISTERED HOLDER(S)
BY THE TRANSFER AGENT.
You have received this Letter
of Transmittal in connection with the offer by Lexus Acquisition Sub, Inc., a
Massachusetts corporation (Purchaser) and a
wholly-owned subsidiary of CalAmp Corp., a Delaware corporation
(CalAmp), to purchase all outstanding Shares, par value
$0.01 per share, of LoJack, at a price of $6.45 per Share, net to the seller in
cash, without interest and subject to deduction for any applicable withholding
taxes, as described in the Offer to Purchase.
You should use this Letter of
Transmittal to deliver to Computershare Trust Company, N.A. (the
Depositary) Shares represented by Share Certificates, or,
unless an Agents Message (as defined in the Offer to Purchase) is utilized, if
delivery of Shares is to be made by book-entry transfer to the Depositarys
account at The Depository Trust Company (the Book-Entry Transfer Facility), pursuant to the procedures set forth in
Section 3 of the Offer to Purchase.
If Share Certificates for your
Shares are not immediately available or you cannot deliver such certificates and
all other required documents to the Depositary on or prior to the expiration of
the Offer, or you cannot complete the procedure for book-entry transfer on a
timely basis, then you must tender your Shares according to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. See
Instruction 2 below. Delivery of
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Depositary.
NOTE: SIGNATURES MUST BE
PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
☐ |
CHECK HERE IF TENDERED
SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARYS
ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE
FOLLOWING: |
|
|
|
Name
of Tendering Institution |
|
☐ |
CHECK HERE IF TENDERED
SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING (PLEASE
ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY): |
|
|
|
Name(s) of Tendering Shareholder(s) |
|
|
Date
of Execution of Notice of Guaranteed Delivery |
|
|
Name
of Institution that Guaranteed Delivery |
|
If
delivery is by book-entry transfer:
|
Name
of Tendering Institution |
|
CORPORATE
ACTIONS VOLUNTARY COY CALC |
2 |
Ladies and Gentlemen:
The undersigned hereby tenders
to Lexus Acquisition Sub, Inc. (Purchaser), a
Massachusetts corporation and a wholly-owned subsidiary of CalAmp Corp., a
Delaware corporation (CalAmp), the
above-described shares of common stock, par value $0.01 per share (the
Shares), of LoJack Corporation, a Massachusetts
corporation (LoJack), pursuant to
Purchasers offer to purchase all outstanding Shares at $6.45 per Share, net to
the seller in cash, without interest and less any applicable withholding taxes,
upon the terms and subject to the conditions set forth in this Letter of
Transmittal (the Letter of
Transmittal) and in the
related Offer to Purchase dated February 16, 2016 that accompanies this Letter
of Transmittal (the Offer to
Purchase which, together
with this Letter of Transmittal, as each may be amended or supplemented from
time to time, collectively constitute the Offer), receipt of which is hereby acknowledged.
The Offer expires at 12:00
midnight, Eastern time, on Monday, March 14, 2016 (one minute after 11:59 P.M.,
Eastern time, on Monday, March 14, 2016), unless extended as described in the
Offer to Purchase (as extended, the Expiration Date).
Purchaser reserves the right to transfer or assign, in whole or from time to
time in part, to one or more of its affiliates the right to purchase Shares
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve Purchaser of its obligations under the Offer or prejudice your rights to
receive payment for Shares validly tendered and accepted for payment.
Upon the terms and subject to
the conditions of the Offer and effective upon acceptance for payment of and
payment for the Shares tendered herewith, the undersigned hereby sells, assigns
and transfers to, or upon the order of, Purchaser all right, title and interest
in and to all the Shares that are being tendered hereby (and any and all other
Shares or other securities issued or issuable in respect thereof on or after the
commencement of the Offer) and appoints the Depositary the true and lawful agent
and attorney-in-fact of the undersigned with respect to such Shares (and all
such other Shares or securities), with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest), to
(i) deliver certificates for such Shares (and all such other Shares or
securities), or transfer ownership of such Shares (and all such other Shares or
securities) on the account books maintained by The Depository Trust Company (the
Book-Entry Transfer
Facility), together, in any
such case, with all accompanying evidences of transfer and authenticity, to or
upon the order of Purchaser, (ii) present such Shares (and all such other Shares
or securities) for transfer on the books of LoJack, and (iii) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and all such other Shares or securities), all in accordance with the
terms of the Offer.
The undersigned hereby
irrevocably appoints Purchaser and its officers, and each of them, and any other
designees of Purchaser, the attorneys and proxies of the undersigned, each with
full power of substitution, to exercise all voting and other rights of the
undersigned in such manner as each such attorney and proxy or its, his or her
substitute shall in its, his or her sole discretion deem proper, with respect to
all of the Shares tendered hereby which have been accepted for payment by
Purchaser prior to the time of any vote or other action (and any and all other
Shares or other securities issued or issuable in respect thereof on or after the
commencement of the Offer), at any meeting of shareholders of LoJack (whether
annual or special and whether or not an adjourned meeting), or otherwise. This
proxy is irrevocable and is granted in consideration of, and is effective upon,
the acceptance for payment of such Shares by Purchaser in accordance with the
terms of the Offer. Such acceptance for payment shall revoke any other proxy,
power of attorney and consents granted by the undersigned at any time with
respect to such Shares (and all such other Shares or securities), and no
subsequent proxies, power of attorney or consents will be given by the
undersigned (and if given, will not be deemed to be effective). Purchaser
reserves the right to require that, in order for Shares to be deemed validly
tendered, immediately upon Purchasers acceptance for payment of such Shares,
Purchaser must be able to exercise full voting, consent and other rights, to the
extent permitted under applicable law, with respect to such Shares, including
voting at any meeting of shareholders or executing a written consent concerning
any matter.
The undersigned hereby
represents and warrants that the undersigned has full power and authority to
tender, sell, assign and transfer the Shares tendered herein (and any and all
other Shares or other securities issued or issuable in respect thereof on or
after the commencement of the Offer) and that when the same are accepted for
payment by Purchaser, Purchaser will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claims. The undersigned hereby represents and
warrants that the undersigned is the registered owner of the Shares, or the
Share Certificate(s) have been endorsed to the undersigned in blank, or the
undersigned is a participant in the Book-Entry Transfer Facility whose name
appears on a security position listing as the owner of the Shares.
The undersigned will, upon
request, execute and deliver any additional documents deemed by the Depositary
or Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Shares tendered hereby (and all such other Shares or
securities).
The undersigned understands
that he, she or it will not receive payment for the Shares unless and until the
Shares are accepted for payment and until the Share Certificate(s) owned by the
undersigned are received by the Depositary at the address set forth above,
together with such additional documents as the Depositary may require, or, in
the case of Shares held in book-entry form, ownership of Shares is validly transferred on the account books
maintained by the Book-Entry Transfer Facility, and until the same are processed
for payment by the Depositary.
CORPORATE
ACTIONS VOLUNTARY COY CALC |
3 |
IT IS UNDERSTOOD THAT THE
METHOD OF DELIVERY OF THE SHARES, THE SHARE CERTIFICATE(S) AND ALL OTHER
REQUIRED DOCUMENTS (INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY) IS AT THE OPTION AND
RISK OF THE UNDERSIGNED AND THAT THE RISK OF LOSS OF SUCH SHARES, SHARE
CERTIFICATE(S) AND OTHER DOCUMENTS SHALL PASS ONLY AFTER THE DEPOSITARY HAS
ACTUALLY RECEIVED THE SHARES OR SHARE CERTIFICATE(S) (INCLUDING, IN THE CASE OF
A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL, IT
IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
All authority herein conferred
or agreed to be conferred shall survive the death or incapacity of the
undersigned, and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as stated in the Offer, this tender is irrevocable.
The undersigned understands
that tenders of Shares pursuant to any one of the procedures described in
Section 3 of the Offer to Purchase and in the instructions hereto will
constitute a binding agreement between the undersigned and Purchaser upon the
terms and subject to the conditions of the Offer.
Unless otherwise indicated
under Special Payment Instructions, please issue the check for the purchase
price of any Shares purchased, and return any Shares not tendered or not
purchased, in the name(s) of the undersigned (and, in the case of Shares
tendered by book-entry transfer, by credit to the account at the Book-Entry
Transfer Facility). Similarly, unless otherwise indicated under Special
Delivery Instructions, please mail the check for the purchase price of any
Shares purchased and any certificates for Shares not tendered or not purchased
(and accompanying documents, as appropriate) to the undersigned at the address
shown below the undersigneds signature(s). In the event that both Special
Payment Instructions and Special Delivery Instructions are completed, please
issue the check for the purchase price of any Shares purchased and return any
Shares not tendered or not purchased in the name(s) of, and mail said check and
any certificates to, the person(s) so indicated. The undersigned recognizes that
Purchaser has no obligation, pursuant to the Special Payment Instructions, to
transfer any Shares from the name of the registered holder(s) thereof if
Purchaser does not accept for payment any of the Shares so tendered.
CORPORATE
ACTIONS VOLUNTARY COY CALC |
4 |
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 6 and 7)
To be completed ONLY if the
check for the purchase price of Shares purchased (less any required withholding
taxes) or certificates for Shares not tendered or not purchased are to be issued
in the name of someone other than the undersigned.
|
|
|
Issue: |
☐
check |
☐
certificates to: |
|
Taxpayer Identification
Number |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6 and 7)
To be completed ONLY if the
check for the purchase price of Shares purchased (less any applicable
withholding taxes) or certificates for Shares not tendered or not purchased are
to be mailed to someone other than the undersigned or to the undersigned at an
address other than that shown below the undersigneds signature(s).
|
|
|
Mail: |
☐
check |
☐
certificates to: |
CORPORATE
ACTIONS VOLUNTARY COY CALC |
5 |
|
SIGN
HERE (PLEASE COMPLETE
ENCLOSED FORM W-9) |
Sign
Here: |
|
|
Sign
Here: |
|
|
(Signature(s) of
Shareholder(s)) |
Dated _______________, 2016
Area Code and Telephone Number |
|
(Must be signed by
registered holder(s) exactly as name(s) appear(s) on stock certificate(s) or on
a security position listing or by person(s) authorized to become registered
holder(s) by certificates and documents transmitted herewith. If signature is by
a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer
of a corporation or other person acting in a fiduciary or representative
capacity, please set forth full title and see Instruction 5.)
|
Guarantee of
Signature(s) (If required; see Instructions 1 and 5) (For use by
Eligible Institutions only Place medallion guarantee in space below)
|
Name of
Firm |
|
Area
Code and Telephone Number |
|
Dated _______________,
2016
CORPORATE
ACTIONS VOLUNTARY COY CALC |
6 |
CORPORATE ACTIONS VOLUNTARY COY CALC |
7 |
Form W-9 (Rev. 12-2014) |
Page 2 |
Note. If you are a U.S.
person and a requester gives you a form other than Form W-9 to request your TIN,
you must use the requesters form if it is substantially similar to this Form
W-9.
Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you
are:
● |
An individual who is a U.S. citizen or U.S. resident
alien; |
● |
A partnership, corporation, company, or association created or
organized in the United States or under the laws of the United
States; |
● |
An estate (other than a foreign estate); or |
● |
A domestic trust (as defined in Regulations section 301.7701-7). |
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are
generally required to pay a withholding tax under section 1446 on any foreign
partners share of effectively connected taxable income from such business.
Further, in certain cases where a Form W-9 has not been received, the rules
under section 1446 require a partnership to presume that a partner is a foreign
person, and pay the section 1446 withholding tax. Therefore, if you are a U.S.
person that is a partner in a partnership conducting a trade or business in the
United States, provide Form W-9 to the partnership to establish your U.S. status
and avoid section 1446 withholding on your share of partnership
income.
In
the cases below, the following person must give Form W-9 to the partnership for
purposes of establishing its U.S. status and avoiding withholding on its
allocable share of net income from the partnership conducting a trade or
business in the United States:
● |
In the case of a disregarded entity with a U.S. owner, the U.S.
owner of the disregarded entity and not the entity; |
● |
In the case of a grantor trust with a U.S. grantor or other U.S.
owner, generally, the U.S. grantor or other U.S. owner of the grantor
trust and not the trust; and |
● |
In the case of a U.S. trust (other than a grantor trust), the U.S.
trust (other than a grantor trust) and not the beneficiaries of the
trust. |
Foreign person. If you are
a foreign person or the U.S. branch of a foreign bank that has elected to be
treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form
W-8 or Form 8233 (see Publication 515, Withholding of Tax on Nonresident Aliens
and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual
may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain
types of income. However, most tax treaties contain a provision known as a
saving clause. Exceptions specified in the saving clause may permit an
exemption from tax to continue for certain types of income even after the payee
has otherwise become a U.S. resident alien for tax purposes.
If
you are a U.S. resident alien who is relying on an exception contained in the
saving clause of a tax treaty to claim an exemption from U.S. tax on certain
types of income, you must attach a statement to Form W-9 that specifies the
following five items:
1.
The treaty country. Generally, this must be the same treaty under which you
claimed exemption from tax as a nonresident alien.
2.
The treaty article addressing the income.
3.The article number (or location) in the tax treaty that contains the
saving clause and its exceptions.
4.
The type and amount of income that qualifies for the exemption from
tax.
5.
Sufficient facts to justify the exemption from tax under the terms of the treaty
article.
Example.
Article 20 of the U.S.-China
income tax treaty allows an exemption from tax for scholarship income received
by a Chinese student temporarily present in the United States. Under U.S. law,
this student will become a resident alien for tax purposes if his or her stay in
the United States exceeds 5 calendar years. However, paragraph 2 of the first
Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions
of Article 20 to continue to apply even after the Chinese student becomes a
resident alien of the United States. A Chinese student who qualifies for this
exception (under paragraph 2 of the first protocol) and is relying on this
exception to claim an exemption from tax on his or her scholarship or fellowship
income would attach to Form W-9 a statement that includes the information
described above to support that exemption.
If
you are a nonresident alien or a foreign entity, give the requester the
appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding? Persons making certain payments to you must
under certain conditions withhold and pay to the IRS 28% of such payments. This
is called backup withholding. Payments that may be subject to backup
withholding include interest, tax-exempt interest, dividends, broker and barter
exchange transactions, rents, royalties, nonemployee pay, payments made in
settlement of payment card and third party network transactions, and certain
payments from fishing boat operators. Real estate transactions are not subject
to backup withholding.
You will not be subject to backup withholding on payments you receive if
you give the requester your correct TIN, make the proper certifications, and
report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding
if:
1.You do not furnish your TIN to the requester,
2.You do not certify your TIN when required (see the Part II instructions
on page 3 for details),
3.
The IRS tells the requester that you furnished an incorrect TIN,
4.
The IRS tells you that you are subject to backup withholding because you did not
report all your interest and dividends on your tax return (for reportable
interest and dividends only), or
5.
You do not certify to the requester that you are not subject to backup
withholding under 4 above (for reportable interest and dividend accounts opened
after 1983 only).
Certain payees and payments are exempt from backup withholding. See
Exempt payee code on page 3 and the separate Instructions for the
Requester of Form W-9 for more information.
Also see Special rules for
partnerships above.
What is FATCA reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating
foreign financial institution to report all United States account holders that
are specified United States persons. Certain payees are exempt from FATCA
reporting. See Exemption from
FATCA reporting code on page 3
and the Instructions for the Requester of Form W-9 for more
information.
Updating Your Information
You must provide updated information to any person to whom you claimed to
be an exempt payee if you are no longer an exempt payee and anticipate receiving
reportable payments in the future from this person. For example, you may need to
provide updated information if you are a C corporation that elects to be an S
corporation, or if you no longer are tax exempt. In addition, you must furnish a
new Form W-9 if the name or TIN changes for the account; for example, if the
grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If
you fail to furnish your correct TIN to a requester, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
Civil penalty for false information with respect to
withholding. If you make a false
statement with no reasonable basis that results in no backup withholding, you
are subject to a $500 penalty.
Criminal penalty for falsifying information. Willfully falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
Misuse of TINs. If the
requester discloses or uses TINs in violation of federal law, the requester may
be subject to civil and criminal penalties.
Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax
return.
If
this Form W-9 is for a joint account, list first, and then circle, the name of
the person or entity whose number you entered in Part I of Form W-9.
a.
Individual. Generally, enter the name shown on your tax
return. If you have changed your last name without informing the Social Security
Administration (SSA) of the name change, enter your first name, the last name as
shown on your social security card, and your new last name.
Note. ITIN applicant:
Enter your individual name as it was entered on your Form W-7 application, line
1a. This should also be the same as the name you entered on the Form
1040/1040A/1040EZ you filed with your application.
b.
Sole proprietor or single-member
LLC. Enter your individual name
as shown on your 1040/1040A/1040EZ on line 1. You may enter your business,
trade, or doing business as (DBA) name on line 2.
c.
Partnership, LLC that is not a
single-member LLC, C Corporation, or S Corporation. Enter the entity's name as shown on the entity's
tax return on line 1 and any business, trade, or DBA name on line 2.
d.
Other entities. Enter your name as shown on required U.S.
federal tax documents on line 1. This name should match the name shown on the
charter or other legal document creating the entity. You may enter any business,
trade, or DBA name on line 2.
e.
Disregarded entity. For U.S. federal tax purposes, an entity that is
disregarded as an entity separate from its owner is treated as a disregarded
entity. See Regulations section 301.7701-2(c)(2)(iii). Enter the owner's name
on line 1. The name of the entity entered on line 1 should never be a
disregarded entity. The name on line 1 should be the name shown on the income
tax return on which the income should be reported. For example, if a foreign LLC
that is treated as a disregarded entity for U.S. federal tax purposes has a
single owner that is a U.S. person, the U.S. owner's name is required to be
provided on line 1. If the direct owner of the entity is also a disregarded
entity, enter the first owner that is not disregarded for federal tax purposes.
Enter the disregarded entity's name on line 2, Business name/disregarded entity
name. If the owner of the disregarded entity is a foreign person, the owner
must complete an appropriate Form W-8 instead of a Form W-9. This is the case
even if the foreign person has a U.S. TIN.
CORPORATE ACTIONS VOLUNTARY COY CALC |
8 |
Form W-9 (Rev. 12-2014) |
Page 3 |
Line 2
If
you have a business name, trade name, DBA name, or disregarded entity name, you
may enter it on line 2.
Line 3
Check the appropriate box in line 3 for the U.S. federal tax
classification of the person whose name is entered on line 1. Check only one box
in line 3.
Limited Liability Company (LLC). If the name on line 1 is an LLC treated as a partnership for U.S.
federal tax purposes, check the Limited Liability Company box and enter P in
the space provided. If the LLC has filed Form 8832 or 2553 to be taxed as a
corporation, check the Limited Liability Company box and in the space provided
enter C for C corporation or S for S corporation. If it is a single-member
LLC that is a disregarded entity, do not check the Limited Liability Company
box; instead check the first box in line 3 Individual/sole proprietor or
single-member LLC.
Line 4, Exemptions
If
you are exempt from backup withholding and/or FATCA reporting, enter in the
appropriate space in line 4 any code(s) that may apply to you.
Exempt payee code.
● |
Generally, individuals (including sole proprietors) are not exempt
from backup withholding. |
● |
Except as provided below, corporations are exempt from backup
withholding for certain payments, including interest and
dividends. |
● |
Corporations are not exempt from backup withholding for payments
made in settlement of payment card or third party network
transactions. |
● |
Corporations are not exempt from backup withholding with respect to
attorneys' fees or gross proceeds paid to attorneys, and corporations that
provide medical or health care services are not exempt with respect to
payments reportable on Form 1099-MISC. |
The following codes identify payees that are exempt from backup
withholding. Enter the appropriate code in the space in line 4.
1An organization exempt from tax under section 501(a), any IRA, or a
custodial account under section 403(b)(7) if the account satisfies the
requirements of section 401(f)(2)
2The United States or any of its agencies or
instrumentalities
3A state, the District of Columbia, a U.S. commonwealth or possession,
or any of their political subdivisions or instrumentalities
4A foreign government or any of its political subdivisions, agencies, or
instrumentalities
5A corporation
6A dealer in securities or commodities required to register in the
United States, the District of Columbia, or a U.S. commonwealth or
possession
7A futures commission merchant registered with the Commodity Futures
Trading Commission
8A real estate investment trust
9An entity registered at all times during the tax year under the
Investment Company Act of 1940
10A common trust fund operated by a bank under section 584(a)
11A financial institution
12A middleman known in the investment community as a nominee or
custodian
13A trust exempt from tax under section 664 or described in section
4947
The following chart shows types of payments that
may be exempt from backup withholding. The chart applies to the exempt payees
listed above, 1 through 13.
IF the payment is for . . . |
THEN the payment is exempt for . . . |
Interest and dividend
payments |
All
exempt payees except for 7 |
Broker transactions |
Exempt payees 1 through 4 and 6 through 11
and all C corporations. S corporations must not enter an exempt payee code
because they are exempt only for sales of noncovered securities acquired
prior to 2012. |
Barter
exchange transactions and patronage dividends |
Exempt payees 1 through 4 |
Payments over $600 required to be reported and direct sales over
$5,0001 |
Generally, exempt payees 1 through
52 |
Payments made in settlement of payment card or third party network
transactions |
Exempt payees 1 through
4 |
1See Form 1099-MISC, Miscellaneous Income, and its
instructions.
2 However, the following payments made to a corporation and
reportable on Form 1099-MISC are not exempt from backup withholding: medical and
health care payments, attorneys' fees, gross proceeds paid to an attorney
reportable under section 6045(f), and payments for services paid by a federal
executive agency.
Exemption from FATCA reporting code. The following codes identify payees that are
exempt from reporting under FATCA. These codes apply to persons submitting this
form for accounts maintained outside of the United States by certain foreign
financial institutions. Therefore, if you are only submitting this form for an
account you hold in the United States, you may leave this field blank. Consult
with the person requesting this form if you are uncertain if the financial
institution is subject to these requirements. A requester may indicate that a
code is not required by providing you with a Form W-9 with Not Applicable (or
any similar indication) written or printed on the line for a FATCA exemption
code.
AAn organization exempt from tax under section 501(a) or any individual
retirement plan as defined in section 7701(a)(37)
BThe United States or any of its agencies or
instrumentalities
CA state, the District of Columbia, a U.S. commonwealth or possession,
or any of their political subdivisions or instrumentalities
DA corporation the stock of which is regularly traded on one or more
established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
EA corporation that is a member of the same expanded affiliated group as
a corporation described in Regulations section 1.1472-1(c)(1)(i)
FA dealer in securities, commodities, or derivative financial
instruments (including notional principal contracts, futures, forwards, and
options) that is registered as such under the laws of the United States or any
state
GA real estate investment trust
HA regulated investment company as defined in section 851 or an entity
registered at all times during the tax year under the Investment Company Act of
1940
IA common trust fund as defined in section 584(a)
JA bank as defined in section 581
KA broker
LA trust exempt from tax under section 664 or described in section
4947(a)(1)
MA tax exempt trust under a section 403(b) plan or section 457(g)
plan
Note. You may wish to
consult with the financial institution requesting this form to determine whether
the FATCA code and/or exempt payee code should be completed.
Line 5
Enter your address (number, street, and apartment or suite number). This
is where the requester of this Form W-9 will mail your information
returns.
Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and
you do not have and are not eligible to get an SSN, your TIN is your IRS
individual taxpayer identification number (ITIN). Enter it in the social
security number box. If you do not have an ITIN, see How to get a TIN below.
If
you are a sole proprietor and you have an EIN, you may enter either your SSN or
EIN. However, the IRS prefers that you use your SSN.
If
you are a single-member LLC that is disregarded as an entity separate from its
owner (see Limited Liability
Company (LLC) on this page),
enter the owners SSN (or EIN, if the owner has one). Do not enter the
disregarded entitys EIN. If the LLC is classified as a corporation or
partnership, enter the entitys EIN.
Note. See the chart on page 4 for further clarification of name and TIN
combinations.
How to get a TIN. If you
do not have a TIN, apply for one immediately. To apply for an SSN, get Form
SS-5, Application for a Social Security Card, from your local SSA office or get
this form online at www.ssa.gov. You may also get this form by calling
1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer
Identification Number, to apply for an ITIN, or Form SS-4, Application for
Employer Identification Number, to apply for an EIN. You can apply for an EIN
online by accessing the IRS website at www.irs.gov/businesses and
clicking on Employer Identification Number (EIN) under Starting a Business. You
can get Forms W-7 and SS-4 from the IRS by visiting IRS.gov or by calling
1-800-TAX-FORM
(1-800-829-3676).
If
you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and
write Applied For in the space for the TIN, sign and date the form, and give
it to the requester. For interest and dividend payments, and certain payments
made with respect to readily tradable instruments, generally you will have 60
days to get a TIN and give it to the requester before you are subject to backup
withholding on payments. The 60-day rule does not apply to other types of
payments. You will be subject to backup withholding on all such payments until
you provide your TIN to the requester.
Note. Entering Applied
For means that you have already applied for a TIN or that you intend to apply
for one soon.
Caution: A disregarded U.S. entity that has a foreign owner
must use the appropriate Form W-8.
CORPORATE ACTIONS VOLUNTARY COY CALC |
9 |
Form W-9 (Rev. 12-2014) |
Page 4 |
Part II. Certification
To
establish to the withholding agent that you are a U.S. person, or resident
alien, sign Form W-9. You may be requested to sign by the withholding agent even
if items 1, 4, or 5 below indicate otherwise.
For a joint account, only the person whose TIN is shown in Part I should
sign (when required). In the case of a disregarded entity, the person identified
on line 1 must sign. Exempt payees, see Exempt payee code earlier.
Signature requirements.
Complete the certification as indicated in items 1 through 5 below.
1. Interest, dividend, and barter exchange accounts opened before 1984 and
broker accounts considered active during 1983. You must give your correct TIN, but you do not
have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after
1983 and broker accounts considered inactive during 1983. You must sign the certification or backup
withholding will apply. If you are subject to backup withholding and you are
merely providing your correct TIN to the requester, you must cross out item 2 in
the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the
certification.
4. Other payments. You
must give your correct TIN, but you do not have to sign the certification unless
you have been notified that you have previously given an incorrect TIN. Other
payments include payments made in the course of the requesters trade or
business for rents, royalties, goods (other than bills for merchandise), medical
and health care services (including payments to corporations), payments to a
nonemployee for services, payments made in settlement of payment card and third
party network transactions, payments to certain fishing boat crew members and
fishermen, and gross proceeds paid to attorneys (including payments to
corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured
property, cancellation of debt, qualified tuition program payments (under
section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or
distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the
certification.
What Name and Number To Give the Requester
For this type of
account: |
|
|
Give name and SSN of: |
|
1. |
Individual |
|
|
The individual |
|
2. |
Two or more individuals (joint
account)
|
|
|
The actual owner of the account or, if
combined funds, the first individual on the
account1 |
|
3. |
Custodian account of a minor (Uniform Gift
to Minors Act) |
|
|
The minor2 |
|
4. |
a. The usual revocable savings trust
(grantor is also trustee) b. So-called trust account that
is not a legal or valid trust under state law |
|
|
The grantor-trustee1 |
|
5. |
Sole proprietorship or disregarded entity
owned by an individual |
|
|
The actual owner1 |
|
6. |
Grantor trust filing under Optional Form
1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)
(A)) |
|
|
The owner3 The grantor* |
|
|
|
|
For this type of
account: |
|
|
Give name and EIN
of: |
|
7. |
Disregarded entity not owned by an
individual |
|
|
The owner |
|
8. |
A valid trust, estate, or pension
trust |
|
|
Legal entity4 |
|
9. |
Corporation or LLC electing corporate status
on Form 8832 or Form 2553 |
|
|
The corporation |
|
10. |
Association, club, religious, charitable,
educational, or other tax- exempt organization |
|
|
The organization |
|
11. |
Partnership or multi-member LLC |
|
|
The partnership |
|
12. |
A broker or registered nominee |
|
|
The broker or nominee |
|
13. |
Account with the Department of Agriculture
in the name of a public entity (such as a state or local government,
school district, or prison) that receives agricultural program
payments |
|
|
The public entity |
|
14. |
Grantor trust filing under the Form 1041 Filing Method or the
Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i) (B)) |
|
|
The trust |
1List first and circle the name of the person whose number you
furnish. If only one person on a joint account has an SSN, that persons number
must be furnished.
2Circle the minors name and furnish
the minors SSN.
3You must show
your individual name and you may also enter your business or DBA name on the
Business name/disregarded entity name line. You may use either your SSN or EIN
(if you have one), but the IRS encourages you to use your SSN.
4List first and circle the name of the trust, estate, or
pension trust. (Do not furnish the TIN of the personal representative or trustee
unless the legal entity itself is not designated in the account title.) Also see
Special rules for partnerships
on page 2.
*Note. Grantor also must provide a Form W-9 to trustee of
trust.
Note. If no name is
circled when more than one name is listed, the number will be considered to be
that of the first name listed.
Secure Your Tax Records from Identity Theft
Identity theft occurs when someone uses your personal information such as
your name, SSN, or other identifying information, without your permission, to
commit fraud or other crimes. An identity thief may use your SSN to get a job or
may file a tax return using your SSN to receive a refund.
To
reduce your risk:
● |
Protect your SSN, |
● |
Ensure your employer is protecting your SSN, and |
● |
Be careful when choosing a tax
preparer. |
If
your tax records are affected by identity theft and you receive a notice from
the IRS, respond right away to the name and phone number printed on the IRS
notice or letter.
If
your tax records are not currently affected by identity theft but you think you
are at risk due to a lost or stolen purse or wallet, questionable credit card
activity or credit report, contact the IRS Identity Theft Hotline at
1-800-908-4490 or submit Form 14039.
For more information, see Publication 4535, Identity Theft Prevention and
Victim Assistance.
Victims of identity theft who are experiencing economic harm
or a system problem, or are seeking help in resolving tax problems that have not
been resolved through normal channels, may be eligible for Taxpayer Advocate
Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case
intake line at
1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing
schemes. Phishing is the creation
and use of email and websites designed to mimic legitimate business emails and
websites. The most common act is sending an email to a user falsely claiming to
be an established legitimate enterprise in an attempt to scam the user into
surrendering private information that will be used for identity
theft.
The IRS does not initiate contacts with taxpayers via emails. Also, the
IRS does not request personal detailed information through email or ask
taxpayers for the PIN numbers, passwords, or similar secret access information
for their credit card, bank, or other financial accounts.
If
you receive an unsolicited email claiming to be from the IRS, forward this
message to phishing@irs.gov.
You may also report misuse of the
IRS name, logo, or other IRS property to the Treasury Inspector General for Tax
Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to
the Federal Trade Commission at: spam@uce.gov or contact
them at www.ftc.gov/idtheft
or 1-877-IDTHEFT
(1-877-438-4338).
Visit IRS.gov to learn more about identity theft and how to reduce your
risk.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your
correct TIN to persons (including federal agencies) who are required to file
information returns with the IRS to report interest, dividends, or certain other
income paid to you; mortgage interest you paid; the acquisition or abandonment
of secured property; the cancellation of debt; or contributions you made to an
IRA, Archer MSA, or HSA. The person collecting this form uses the information on
the form to file information returns with the IRS, reporting the above
information. Routine uses of this information include giving it to the
Department of Justice for civil and criminal litigation and to cities, states,
the District of Columbia, and U.S. commonwealths and possessions for use in
administering their laws. The information also may be disclosed to other
countries under a treaty, to federal and state agencies to enforce civil and
criminal laws, or to federal law enforcement and intelligence agencies to combat
terrorism. You must provide your TIN whether or not you are required to file a
tax return. Under section 3406, payers must generally withhold a percentage of
taxable interest, dividend, and certain other payments to a payee who does not
give a TIN to the payer. Certain penalties may also apply for providing false or
fraudulent information.
CORPORATE ACTIONS VOLUNTARY COY CALC |
10 |
INSTRUCTIONS
Forming
Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. Except as otherwise provided below, all signatures
on this Letter of Transmittal must be guaranteed by a financial institution
(including most banks, savings and loan associations and brokerage houses) that
is a member of a recognized Medallion Program approved by The Securities
Transfer Association, Inc., including the Securities Transfer Agents Medallion
Program (STAMP), the Stock Exchange Medallion Program (SEMP) and the New York
Stock Exchange Medallion Signature Program (MSP) or any other eligible
guarantor institution (as such term is defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended) (each an Eligible Institution). Signatures on this Letter of Transmittal need
not be guaranteed (i) if this Letter of Transmittal is signed by the registered
holder(s) of the Shares (which term, for purposes of this document, shall
include any participant in the Book-Entry Transfer Facility whose name appears
on a security position listing as the owner of Shares) tendered herewith and
such holder(s) has not completed the box entitled Special Payment Instructions
or Special Delivery Instructions on this Letter of Transmittal or (ii) if such
Shares are tendered for the account of an Eligible Institution. See Instruction
5.
2. Delivery of Letter of Transmittal and Shares.
This Letter of Transmittal is to
be used either if certificates or book entry shares at the Transfer Agent are to
be forwarded herewith or, unless an Agents Message is utilized, if delivery of
Shares is to be made by book-entry transfer pursuant to the procedures set forth
in Section 3 of the Offer to Purchase. Certificates for all physically delivered
Shares, or a confirmation of a book-entry transfer into the Depositarys account
at the Book-Entry Transfer Facility of all Shares delivered electronically, as
well as a properly completed and duly executed Letter of Transmittal and any
other documents required by this Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the front page of this Letter of
Transmittal by the Expiration Date. Shareholders who cannot deliver their Shares
and all other required documents to the Depositary by the Expiration Date must
tender their Shares pursuant to the guaranteed delivery procedure set forth in
Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) such tender
must be made by or through an Eligible Institution, (ii) a properly completed
and duly executed Notice of Guaranteed Delivery substantially in the form
provided by Purchaser must be received by the Depositary by the Expiration Date,
and (iii) the certificates for all physically delivered Shares, or a
confirmation of a book-entry transfer into the Depositarys account at the
Book-Entry Transfer Facility of all Shares delivered electronically, as well as
a properly completed and duly executed Letter of Transmittal and any other
documents required by this Letter of Transmittal, must be received by the
Depositary within three NASDAQ trading days after the date of execution of such
Notice of Guaranteed Delivery, all as provided in Section 3 of the Offer to
Purchase.
The method of delivery of
Shares, this Letter of Transmittal and all other required documents, including
through the Book-Entry Transfer Facility, is at the sole option and risk of the
tendering shareholder, and delivery of the Shares will be deemed made only when
actually received by the Depositary (including, in the case of a book-entry
transfer, by book-entry confirmation). If certificates for Shares are sent by
mail, we recommend registered mail with return receipt requested, properly
insured, in time to be received on or prior to the Expiration Date.
No alternative, conditional or
contingent tenders will be accepted, and no fractional Shares will be purchased.
By executing this Letter of Transmittal, the tendering shareholder waives any
right to receive any notice of the acceptance for payment of the Shares.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. Partial Tenders (not applicable to shareholders
who tender by book-entry transfer). If fewer than all the Shares represented by any certificate delivered to
the Depositary are to be tendered, fill in the number of Shares which are to be
tendered in the box entitled Number of Shares Tendered. In such case, a new
certificate for the remainder of the Shares represented by the old certificate
will be issued and sent to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the boxes entitled Special Payment Instructions
or Special Delivery Instructions, as the case may be, on this Letter of
Transmittal, as promptly as practicable following the expiration or termination
of the Offer. All Shares represented by certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers
and Endorsements. If this Letter
of Transmittal is signed by the registered holder(s) of the Shares tendered
hereby, the signature(s) must correspond with the name(s) as written on the face
of the certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered
hereby is held of record by two or more persons, all such persons must sign this
Letter of Transmittal.
CORPORATE ACTIONS VOLUNTARY COY CALC |
11 |
If any of the Shares tendered
hereby are registered in different names on different certificates, it will be
necessary to complete, sign and submit as many separate Letters of Transmittal
as there are different registrations of certificates.
If this Letter of Transmittal
is signed by the registered holder(s) of the Shares tendered hereby, no
endorsements of certificates or separate stock powers are required unless
payment of the purchase price is to be made, or Shares not tendered or not
purchased are to be returned, in the name of any person other than the
registered holder(s). Signatures on any such certificates or stock powers must
be guaranteed by an Eligible Institution.
If this Letter of Transmittal
is signed by a person other than the registered holder(s) of the Shares tendered
hereby, certificates must be endorsed or accompanied by appropriate stock
powers, in either case, signed exactly as the name(s) of the registered
holder(s) appear(s) on the certificates for such Shares. Signature(s) on any
such certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal
or any certificate or stock power is signed by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such person should so
indicate when signing, and proper evidence satisfactory to Purchaser of the
authority of such person so to act must be submitted.
6. Stock Transfer Taxes. Purchaser will pay any stock transfer taxes with
respect to the sale and transfer of any Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or
Shares not tendered or not purchased are to be returned in the name of, any
person other than the registered holder(s), or if a transfer tax is imposed for
any reason other than the sale or transfer of Shares to Purchaser pursuant to
the Offer, then the amount of any stock transfer taxes (whether imposed on the
registered holder(s), such other person or otherwise) will be deducted from the
purchase price unless satisfactory evidence of the payment of such taxes, or
exemption therefrom, is submitted herewith.
7. Special Payment and Delivery Instructions.
If the check for the purchase
price of any Shares purchased is to be issued, or any Shares not tendered or not
purchased are to be returned, in the name of a person other than the person(s)
signing this Letter of Transmittal or if the check or any certificates for
Shares not tendered or not purchased are to be mailed to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal at an address other than that shown above, the appropriate
boxes on this Letter of Transmittal should be completed. Shareholders tendering
Shares by book-entry transfer may request that Shares not purchased be credited
to such account at the Book-Entry Transfer Facility as such shareholder may
designate under Special Payment Instructions. If no such instructions are
given, any such Shares not purchased will be returned by crediting the account
at the Book-Entry Transfer Facility designated above.
8. Tax Information. Payments made to certain shareholders pursuant to
the Offer may be subject to backup withholding. To avoid backup withholding,
each U.S. Holder (as defined in the Offer to Purchase), and, if applicable, each
other payee, must provide the Depositary with such shareholder's or payees
correct taxpayer identification number and certify that such shareholder or
payee is not subject to such backup withholding by completing the enclosed Form
W-9. In general, if a shareholder or payee is an individual, the taxpayer
identification number is the social security number of such individual. If the
Depositary is not provided with the correct taxpayer identification number, the
shareholder or payee may be subject to a $50 penalty imposed by the Internal
Revenue Service. Certain shareholders or payees (including, among others, all
corporations and certain Non-U.S. Holders (as defined in the Offer to Purchase))
are not subject to these backup withholding and reporting requirements. In order
to avoid backup withholding, a Non-U.S. Holder (as defined in the Offer to
Purchase) should submit a properly completed Form W-8BEN (or other applicable
IRS Form W-8), including certification of such holders foreign status, and
signed under penalty of perjury. Such certificates can be obtained from the
Depositary or at http://www.irs.gov.
Failure to complete the
enclosed Form W-9 or any other applicable form will not, by itself, cause Shares
to be deemed invalidly tendered, but may require the Depositary to withhold a
portion (currently 28%) of the amount of any payments made pursuant to the
Offer. Backup withholding is not an additional U.S. federal income tax. Rather,
the U.S. federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained provided that the required
information is furnished to the Internal Revenue Service. We recommend that you consult your own tax advisor
or the Depositary for further guidance regarding the completion of the enclosed
Form W-9 or Form W-8BEN (or other applicable IRS Form W-8) to claim exemption
from backup withholding.
CORPORATE ACTIONS VOLUNTARY COY CALC |
12 |
9. Mutilated, Lost, Stolen or Destroyed Certificates.
If the certificate(s)
representing Shares to be tendered have been mutilated, lost, stolen or
destroyed, shareholders should (i) complete this Letter of Transmittal and (ii)
contact LoJacks transfer agent, American Stock Transfer & Trust Company,
LLC, immediately by calling (800) 937-5449. LoJacks transfer agent will provide
such holder with all necessary forms and instructions to replace any such
mutilated, lost, stolen or destroyed certificates. The shareholder may be
required to post a bond as indemnity against any claim that may be made against
it with respect to the certificate(s) alleged to have been mutilated, lost,
stolen or destroyed. The
Depositary will not accept any Letter of Transmittal without the accompanying
Shares. LoJack shareholders wishing to tender their certificates must first
obtain replacement certificates from American Stock Transfer & Trust
Company, LLC and present such replacement certificates to the Depositary with
this Letter of Transmittal.
10. Waiver of Conditions. Subject to the terms and conditions of the
Merger Agreement (as defined in the Offer to Purchase) and the applicable rules
and regulations of the Securities and Exchange Commission, the conditions of the
Offer may be waived by the Offeror in whole or in part at any time and from time
to time in its sole discretion.
IMPORTANT: THIS LETTER OF
TRANSMITTAL OR AN AGENT'S MESSAGE, TOGETHER WITH SHARE CERTIFICATE(S) OR
BOOK-ENTRY CONFIRMATION OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF
GUARANTEED DELIVERY AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE
EXPIRATION DATE.
The Depositary for the
Offer is:
By First Class Mail: |
By Registered, Certified or
Express |
Computershare |
Mail, or Overnight Courier: |
c/o
Voluntary Corporate Actions |
Computershare |
P.O.
Box 43011 |
c/o
Voluntary Corporate Actions |
Providence, RI 02940-3011 |
250
Royall Street, Suite V |
|
Canton, MA
02021 |
Any questions or requests
for assistance or additional copies of the Offer to Purchase and this Letter of
Transmittal may be obtained from the Information Agent at the address or
telephone numbers set forth below.
The Information Agent for
the Offer is:
D.F. King & Co.,
Inc.
48 Wall Street, 22nd
Floor
New York, New York 10005
Bankers and Brokers Call Collect: (212) 269-5550
All Others Call Toll
Free: (866) 828-0221
Email: lojack@dfking.com
CORPORATE ACTIONS VOLUNTARY COY CALC |
13 |
Exhibit (a)(1)(C)
NOTICE OF GUARANTEED
DELIVERY
To Tender Shares of
Common Stock
of
LoJack Corporation
Pursuant to the Offer to
Purchase
Dated February 16, 2016 of
Lexus Acquisition Sub,
Inc.
a wholly-owned subsidiary of
CalAmp Corp.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME,
ON MONDAY, MARCH 14, 2016 (ONE MINUTE AFTER 11:59
P.M., EASTERN TIME, ON MONDAY,
MARCH 14, 2016), UNLESS THE OFFER IS
EXTENDED. |
This form, or a substantially
equivalent form, must be used to accept the Offer (as defined herein) if the
certificates for shares of common stock, par value $0.01 per share, of LoJack
Corporation and any other documents required by the Letter of Transmittal (as
defined herein) cannot be delivered to the Depositary by the expiration of the
Offer. Such form may be delivered or transmitted by facsimile transmission (for
eligible institutions only) or mail to the Depositary. See Section 3 of the
Offer to Purchase (as defined herein).
The Depositary for the
Offer is:
|
By First Class Mail: |
|
By Facsimile: |
|
By Registered, Certified or Express |
Computershare |
|
For
Eligible Institutions Only: |
|
Mail, or Overnight Courier: |
c/o
Voluntary Corporate Actions |
|
(617) 360-6810 |
|
Computershare |
P.O.
Box 43011 |
|
|
|
c/o
Voluntary Corporate Actions |
Providence, RI 02940-3011 |
|
Confirm Facsimile Transmission: |
|
250
Royall Street, Suite V |
|
|
(781) 575-2332 |
|
Canton, MA 02021 |
For information call D.F.
King & Co., Inc. at the following numbers:
Bankers and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: (866) 828-0221
Delivery of this Notice of
Guaranteed Delivery to an address other than one set forth above, or
transmission of instructions via facsimile to a number other than the facsimile
number set forth above will not constitute a valid delivery to the
Depositary.
This Notice of Guaranteed
Delivery is not to be used to guarantee signatures. If a signature on a Letter
of Transmittal is required to be guaranteed by an Eligible Institution (as
defined in Section 3 of the Offer to Purchase) under the instructions thereto,
such signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders
to Lexus Acquisition Sub, Inc., a Massachusetts corporation and a wholly-owned
subsidiary of CalAmp Corp., a Delaware corporation, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated February 16, 2016
(the Offer to
Purchase), and the related
letter of transmittal that accompanies the Offer to Purchase (the
Letter of
Transmittal which, together
with the Offer to Purchase, as each may be amended or supplemented from time to
time, collectively constitute the Offer), receipt of
which is hereby acknowledged, the number of shares indicated below of common
stock, par value $0.01 per share (the Shares), of LoJack
Corporation, a Massachusetts corporation, pursuant to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase.
Number of Shares Tendered |
|
|
Certificate Numbers (if available) |
|
|
☐ Check if securities
will be tendered by book-entry transfer
Name
of Tendering Institution |
|
|
Account Number |
|
|
SIGN HERE |
|
(Signature(s)) |
|
(Name(s)) (Please
Print) |
|
(Addresses) |
|
(Zip Code) |
|
(Area Code and Telephone
Number) |
2
GUARANTEE (Not to be used
for signature guarantee)
The undersigned, an Eligible
Institution (as defined in Section 3 of the Offer to Purchase), hereby
guarantees (i) that the above named person(s) own(s) the Shares tendered
hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of
1934 (the Exchange
Act), as amended; (ii) that
such tender of Shares complies with Rule 14e-4 of the Exchange Act; and (iii) to
deliver to the Depositary the Shares tendered hereby, together with a properly
completed and duly executed Letter(s) of Transmittal and certificates for the
Shares to be tendered or an Agents Message (as defined in Section 3 of the
Offer to Purchase) in the case of a book-entry delivery, and any other required
documents, all within three NASDAQ Stock Market trading days of the date
hereof.
|
(Name of Firm) |
|
(Addresses) |
|
(Zip Code) |
|
(Authorized Signature) |
|
(Name) |
|
(Area Code and Telephone
Number) |
Dated: _________ ___,
2016
3
Exhibit (a)(1)(D)
Offer to Purchase for
Cash
All Outstanding Shares of Common Stock
of
LoJack
Corporation
at
$6.45 Net Per
Share
by
Lexus Acquisition Sub,
Inc.
a wholly-owned subsidiary
of
CalAmp
Corp.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, EASTERN TIME, ON MONDAY, MARCH 14, 2016 (ONE MINUTE
AFTER 11:59 P.M., EASTERN TIME, ON MONDAY, MARCH 14, 2016), UNLESS THE
OFFER IS EXTENDED. |
February 16, 2016
To Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees:
We have been engaged by Lexus
Acquisition Sub, Inc. (Purchaser), a
Massachusetts corporation and a wholly-owned subsidiary of CalAmp Corp., a
Delaware corporation (CalAmp), to act as
Information Agent in connection with its offer to purchase all outstanding
shares of common stock, par value $0.01 per share (the Shares), of LoJack Corporation, a Massachusetts corporation
(LoJack), at $6.45 per Share, net to the seller in cash,
without interest and less any applicable withholding taxes, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated February 16,
2016 (the Offer to
Purchase) and the related letter
of transmittal that accompanies the Offer to Purchase (the Letter of Transmittal which, together with the Offer to Purchase, as
each may be amended or supplemented from time to time, collectively constitute
the Offer).
Consummation of the Offer is
conditioned upon, among other things, immediately prior to expiration of the
Offer: (i) there being validly tendered and not withdrawn a number of Shares
that, considered together with all other Shares then owned by CalAmp and its
subsidiaries (including Purchaser), represents at least two-thirds (66 ⅔%) of
the total number of outstanding Shares on a fully diluted basis; (ii) the
applicable waiting period (or any extension thereof) or approval under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), or other antitrust laws having expired or been
terminated or obtained; and (iii) no governmental body having enacted, issued,
promulgated, enforced or entered any law or order that is then in effect and has
the effect of enjoining or otherwise preventing or prohibiting the making of the
Offer or consummation of the merger of Purchaser with and into LoJack pursuant
to the Agreement and Plan of Merger, dated as of February 1, 2016. On February
12, 2016, the Federal Trade Commission granted early termination of the waiting
period under the HSR Act applicable to the Offer and the Merger. With such early
termination, the condition of the Offer relating to the expiration or
termination of the HSR Act waiting period has been satisfied.
Please furnish copies of the
following enclosed materials to those of your clients for whose accounts you
hold Shares registered in your name or in the name of your nominee.
1. Offer to Purchase, dated
February 16, 2016;
2. Letter of Transmittal, for
your use and for the information of your clients, together with the included
Internal Revenue Service Form W-9 or W-8BEN (if applicable);
3. Notice of Guaranteed
Delivery to be used to accept the Offer if the Shares and all other required
documents cannot be delivered to Computershare Trust Company, N.A. (the
Depositary) for the Offer, or if the procedures for
book-entry transfer cannot be completed, by the expiration of the Offer;
4. A form of letter which may
be sent to your clients for whose accounts you hold Shares registered in your
name or in the name of your nominee, with space provided for obtaining such
clients instructions with regard to the Offer; and
5. Return envelope addressed
to the Depositary.
YOUR PROMPT ACTION IS
REQUIRED.
WE URGE YOU TO
CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
In order to accept the Offer,
a duly executed and properly completed Letter of Transmittal and any required
signature guarantees, or an Agents Message (as defined in the Offer to
Purchase) in connection with a book-entry delivery of Shares, and any other
required documents, should be sent to the Depositary by 12:00 midnight, Eastern
time, on Monday, March
14, 2016 (one minute after 11:59
P.M., Eastern time, on Monday, March 14, 2016).
Shareholders whose share
certificates are not immediately available or who cannot deliver such
certificates, or who cannot complete the procedure for delivery by book-entry
transfer on a timely basis or who cannot deliver all other required documents to
the Depositary prior to the expiration of the Offer (the Expiration Date) may tender their Shares by properly completing
and duly executing Notice of Guaranteed Delivery enclosed with the Offer to
Purchase pursuant to the guaranteed delivery procedure set forth in Section 3 of
the Offer to Purchase.
Purchaser will not pay any
fees or commissions to any broker, dealer or other person (other than the
Information Agent or the Depositary as described in the Offer to Purchase) for
soliciting tenders of Shares pursuant to the Offer. Purchaser will, however,
upon request, reimburse brokers, dealers, banks, trust companies and other
nominees for reasonable and necessary costs and expenses incurred by them in
forwarding materials to their customers. Purchaser will pay all stock transfer
taxes applicable to its purchase of Shares pursuant to the Offer, except as
otherwise provided in Instruction 6 of the Letter of Transmittal.
Any extension, delay,
termination, waiver or amendment of the Offer will be followed as promptly as
practicable by public announcement thereof, such announcement in the case of an
extension to be made no later than 9:00 a.m., Eastern time, on the next business
day after the previously scheduled Expiration Date or the previously scheduled
termination of any subsequent offering period, as applicable, in accordance with
the public announcement requirements of Rule 14e-1(d) under the Exchange Act.
The procedures for guaranteed delivery described in Section 3 of the Offer to
Purchase may not be used during any subsequent offering period.
Any inquiries you may have
with respect to the Offer should be addressed to the Information Agent or the
undersigned, and additional copies of the enclosed materials may be obtained
from the Information Agent, at the addresses and telephone numbers set forth on
the back cover of the Offer to Purchase.
Very truly yours,
D.F. King & Co., Inc.
2
NOTHING CONTAINED HEREIN OR
IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU THE AGENT OF LEXUS ACQUISITION
SUB, INC., CALAMP CORP., THE INFORMATION AGENT OR THE DEPOSITARY, OR AUTHORIZE
YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF
ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED
HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
3
Exhibit (a)(1)(E)
Offer to Purchase for
Cash
All Outstanding Shares of Common Stock
of
LoJack Corporation
at
$6.45 Net Per
Share
by
Lexus Acquisition Sub,
Inc.
a wholly-owned subsidiary
of
CalAmp
Corp.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME, ON MONDAY, MARCH 14, 2016 (ONE MINUTE AFTER
11:59 P.M., EASTERN TIME, ON MONDAY, MARCH 14, 2016), UNLESS THE OFFER
IS EXTENDED. |
February 16, 2016
To Our Clients:
Enclosed for your
consideration are the Offer to Purchase, dated February 16, 2016 (the
Offer to
Purchase), and the
related letter of transmittal that accompanies the Offer to Purchase (the
Letter of
Transmittal which, together
with the Offer to Purchase, as each may be amended or supplemented from time to
time, collectively constitute the Offer) in connection
with the offer by Lexus Acquisition Sub, Inc. (Purchaser), a Massachusetts corporation and a wholly-owned
subsidiary of CalAmp Corp., a Delaware corporation (CalAmp), to purchase all outstanding shares of common stock, par value $0.01
per share (the Shares), of LoJack
Corporation, a Massachusetts corporation (LoJack), at $6.45 per Share (the Offer Price), net to
the seller in cash, without interest and less any applicable withholding taxes,
upon the terms and subject to the conditions set forth in the Offer to Purchase
and the related Letter of Transmittal.
We or our nominees are the
holder of record of Shares held for your account. A tender of such Shares can be
made only by us as the holder of record and pursuant to your instructions. The
enclosed Letter of Transmittal is furnished to you for your information only and
cannot be used by you to tender Shares held by us for your account.
We request instructions as
to whether you wish us to tender any or all of the Shares held by us for your
account, upon the terms and subject to the conditions set forth in the Offer to
Purchase and the related Letter of Transmittal.
Your attention is directed to
the following:
1. The tender offer price is
$6.45, net to you in cash, without interest and less any required withholding
taxes.
2. The Offer is being made for
all outstanding shares.
3. The Offer is being made
pursuant to the Agreement and Plan of Merger, dated as of February 1, 2016 (the Merger Agreement), by and among CalAmp, Purchaser, and LoJack.
The Merger Agreement provides, among other things, that CalAmp shall cause
Purchaser to, and Purchaser shall make, the Offer and, after the purchase of
Shares pursuant to the Offer and subject to the satisfaction or waiver of each
of the other conditions set forth in the Merger Agreement and in accordance with
the relevant provisions of the Massachusetts Business Corporation Act (the
MBCA), Purchaser will be merged with and into LoJack
(the Merger) with LoJack
continuing as the surviving corporation, wholly-owned by CalAmp. Pursuant to the
Merger Agreement, at the effective time of the Merger (the Effective Time), each Share outstanding immediately prior to
the Effective Time (other than Shares owned (i) by CalAmp or Purchaser or any of
their respective wholly-owned subsidiaries, and (ii) by any shareholders of
LoJack who properly exercise their appraisal rights, if applicable) will be
cancelled and converted into the right to receive the Offer Price in cash,
without interest and subject to deduction for any applicable withholding taxes.
Under no circumstances will interest be paid on the Offer Price for Shares,
regardless of any extension of the Offer or any delay in making payment for the
Shares. See Section 12 of the Offer to Purchase.
4. THE BOARD OF DIRECTORS OF LOJACK HAS UNANIMOUSLY
(I) DETERMINED THAT THE MERGER
AGREEMENT AND THE OFFER AND THE MERGER ARE IN THE BEST INTERESTS OF THE
SHAREHOLDERS OF LOJACK; (II) ADOPTED THE MERGER AGREEMENT AND APPROVED AND
DECLARED ADVISABLE THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED
BY THE MERGER AGREEMENT, IN ACCORDANCE WITH THE REQUIREMENTS OF THE MBCA; AND
(III) RESOLVED TO RECOMMEND ACCEPTANCE OF THE OFFER AND, IF NECESSARY, APPROVAL
OF THE MERGER AGREEMENT BY THE SHAREHOLDERS OF LOJACK.
5. The Offer and withdrawal
rights expire at 12:00 midnight, Eastern time, on Monday, March 14, 2016 (one minute after 11:59
P.M., Eastern time, on Monday, March 14, 2016), unless extended or earlier
terminated (the latest time and date on which the Offer expires, as it may be
extended, the Expiration
Date). If on or prior to the
Expiration Date, all of the Offer Conditions (as defined in the Merger
Agreement) shall not have been satisfied, or waived by CalAmp or Purchaser if
permitted, Purchaser shall (and CalAmp shall cause Purchaser to) extend the
Offer for successive periods of up to ten business days each (the length of such
period to be determined in good faith by CalAmp and LoJack) until the earlier of
(x) the date on which all of the Offer Conditions are satisfied or waived or (y)
the date on which the Merger Agreement is terminated.
6. Any extension, delay,
termination, waiver or amendment of the Offer will be followed as promptly as
practicable by public announcement thereof, such announcement in the case of an
extension to be made no later than 9:00 a.m., Eastern time, on the next business
day after the previously scheduled Expiration Date or the previously scheduled
termination of any subsequent offering period, as applicable, in accordance with
the public announcement requirements of Rule 14e-1(d) under the Exchange Act.
The procedures for guaranteed delivery described in Section 3 of the Offer to
Purchase may not be used during any subsequent offering period.
7. Consummation of the Offer
is conditioned upon, among other things, immediately prior to expiration of the
Offer: (i) there being validly tendered and not withdrawn a number of Shares
that, considered together with all other Shares then owned by CalAmp and its
subsidiaries (including Purchaser), represents at least two-thirds (66 ⅔%) of
the total number of outstanding Shares on a fully diluted basis; (ii) the
applicable waiting period (or any extension thereof) or approval under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), or other antitrust laws having expired or been
terminated or obtained; and (iii) no governmental body having enacted, issued,
promulgated, enforced or entered any law or order that is then in effect and has
the effect of enjoining or otherwise preventing or prohibiting the making of the
Offer or consummation of the Merger. On February 12, 2016, the Federal Trade
Commission granted early termination of the waiting period under the HSR Act
applicable to the Offer and the Merger. With such early termination, the
condition of the Offer relating to the expiration or termination of the HSR Act
waiting period has been satisfied.
8. Any stock transfer taxes
applicable to the sale of Shares to Purchaser pursuant to the Offer will be paid
by Purchaser, except as otherwise provided in the Letter of Transmittal.
2
9. Tendering shareholders who
are registered shareholders or who tender their Shares directly to Computershare Trust Company,
N.A. (the Depositary) will not
be obligated to pay any brokerage commissions or fees, solicitation fees, or,
except as set forth in the Offer to Purchase and the Letter of Transmittal,
stock transfer taxes on Purchasers purchase of Shares pursuant to the Offer.
10. See Section 5 of the Offer
to Purchase, which sets forth important information with respect to U.S. federal
income tax consequences.
If you wish to have us
tender any or all of your Shares, please so instruct us by completing,
executing, detaching and returning to us the instruction form below.
An envelope to return your
instructions to us is enclosed. If you authorize tender of your Shares, all such
Shares will be tendered unless otherwise specified on the instruction form. Your
instructions should be forwarded to us in ample time to permit us to submit a
tender on your behalf by the Expiration Date.
The Offer is not being made
to, nor will tenders be accepted from or on behalf of, holders of Shares in any
jurisdiction in which the making of the Offer or acceptance thereof would not be
in compliance with the laws of such jurisdiction.
Payment for Shares purchased
pursuant to the Offer will in all cases be made only after timely receipt by the
Depositary of (i) certificates representing the Shares tendered or timely
confirmation of the book-entry transfer of such Shares into the account
maintained by the Depositary at The Depository Trust Company (the
Book-Entry Transfer
Facility), pursuant to the
procedures set forth in Section 3 of the Offer to Purchase; (ii) the Letter of
Transmittal, properly completed and duly executed, with any required signature
guarantees or an Agents Message (as defined in the Offer to Purchase), in
connection with a book-entry delivery; and (iii) any other documents required by
the Letter of Transmittal. Accordingly, payment may not be made to all tendering
shareholders at the same time depending upon when certificates for or
confirmations of book-entry transfer of such Shares into the Depositarys
account at the Book-Entry Transfer Facility are actually received by the
Depositary.
3
Instruction Form with
Respect to
Offer to Purchase for Cash
All Outstanding Shares of
Common Stock
of
LoJack Corporation
at
$6.45 Net Per
Share
by
Lexus Acquisition Sub,
Inc.
a wholly-owned subsidiary
of
CalAmp
Corp.
The undersigned acknowledge(s)
receipt of your letter and the enclosed Offer to Purchase (the
Offer to
Purchase), dated February
16, 2016, and the related letter of transmittal that accompanies the Offer to
Purchase (the Letter of
Transmittal which, together
with the Offer to Purchase, as each may be amended or supplemented from time to
time, collectively constitute the Offer), in connection
with the offer by Lexus Acquisition Sub, Inc., a Massachusetts corporation
(Purchaser), to purchase all outstanding shares of common
stock, par value $0.01 per share (the Shares), of LoJack
Corporation, a Massachusetts corporation, at a purchase price of $6.45 per
Share, net to the seller in cash, without interest, subject to any withholding
taxes required by applicable law and upon the terms and conditions set forth in
the Offer.
The undersigned hereby
instruct(s) you to tender to Purchaser the number of Shares indicated below held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer furnished to the undersigned.
The method of delivery of this
Instruction Form is at the election and risk of the tendering shareholders. This
Instruction Form should be delivered to us in ample time to permit us to submit
the tender on your behalf prior to the expiration of the Offer.
Number of Shares to be Tendered: |
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Shares* |
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Dated |
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,
2016 |
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Signature(s) |
*Unless otherwise indicated, it
will be assumed that all Shares held for the
undersigneds account are to be tendered. |
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Name(s) |
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Address(es) |
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Zip Code |
4
Exhibit (a)(1)(F)
This announcement is
neither an offer to purchase nor a solicitation of an offer to sell Shares (as
defined herein). The Offer (as defined herein) is made solely by the Offer to
Purchase, dated February 16, 2016, and the related Letter of Transmittal and any
amendments or supplements thereto. Purchaser (as defined herein) is not aware of
any state where the making of the Offer is prohibited by any administrative or
judicial action pursuant to any valid state statute. If Purchaser becomes aware
of any valid state statute prohibiting the making of the Offer or the acceptance
of the Shares pursuant thereto, Purchaser will make a good faith effort to
comply with that state statute or seek to have such statute declared
inapplicable to the Offer. If, after a good faith effort, Purchaser cannot
comply with the state statute, Purchaser will not make the Offer to, nor will
tenders be accepted from or on behalf of, the holders of Shares in that state.
Except as set forth above, the Offer is being made to all holders of Shares.
Notice of Offer to
Purchase for Cash
All Outstanding Shares of Common Stock
of
LoJack
Corporation
at
$6.45 Net Per Share
by
Lexus Acquisition Sub,
Inc.,
a Wholly-Owned Subsidiary of
CalAmp Corp.
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME, ON MONDAY, MARCH 14, 2016 (ONE MINUTE AFTER
11:59 P.M., EASTERN TIME, ON MONDAY, MARCH 14, 2016), UNLESS THE OFFER
IS EXTENDED. |
Lexus Acquisition Sub, Inc.
(Purchaser), a Massachusetts corporation and a wholly-owned
subsidiary of CalAmp Corp., a Delaware corporation (CalAmp), is offering to purchase all outstanding shares of common stock, par
value $0.01 per share (the Shares), of LoJack
Corporation, a Massachusetts corporation (LoJack), at $6.45 per Share, net to the seller in cash, without interest and
less any required withholding taxes (the Offer Price), upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated February 16, 2016 (the
Offer to
Purchase), and the related
letter of transmittal that accompanies the Offer to Purchase (the
Letter of
Transmittal which, together
with the Offer to Purchase, as each may be amended or supplemented from time to
time, collectively constitute the Offer).
The Offer is being made
pursuant to the Agreement and Plan of Merger, dated as of February 1, 2016 (the
Merger
Agreement), by and among
CalAmp, Purchaser, and LoJack. The Merger Agreement provides, among other
things, that CalAmp will cause Purchaser to, and Purchaser will make, the Offer
and, after the purchase of Shares pursuant to the Offer and subject to the
satisfaction or waiver of each of the other conditions set forth in the Merger
Agreement and in accordance with the relevant provisions of the Massachusetts
Business Corporation Act (the MBCA), Purchaser will
be merged with and into LoJack (the Merger) with LoJack
continuing as the surviving corporation, wholly-owned by CalAmp. Pursuant to the
Merger Agreement, at the effective time of the Merger (the Effective Time), each Share outstanding immediately prior to
the Effective Time (other than Shares owned (i) by CalAmp or Purchaser or any of
their respective wholly-owned subsidiaries, and (ii) by any shareholders of
LoJack who properly exercise their appraisal rights, if applicable) will be
cancelled and converted into the right to receive the Offer Price in cash,
without interest and subject to deduction for any applicable withholding taxes.
Under no circumstances will interest be paid on the Offer Price for Shares,
regardless of any extension of the Offer or any delay in making payment for the
Shares. See Section 12 of the Offer to Purchase.
Consummation of the Offer is
conditioned upon, among other things, immediately prior to expiration of the
Offer: (i) there being validly tendered and not withdrawn a number of Shares
that, considered together with all other Shares then owned by CalAmp and its
subsidiaries (including Purchaser), represents at least two-thirds (66 ⅔%) of the total number of outstanding Shares on a fully diluted basis;
(ii) the applicable waiting period (or any extension thereof) or approval under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or other antitrust laws having expired or been terminated or
obtained; and (iii) no governmental body having enacted, issued, promulgated,
enforced or entered any law or order that is then in effect and has the effect
of enjoining or otherwise preventing or prohibiting the making of the Offer or
consummation of the Merger. Consummation of the Offer is
not conditioned upon any financing arrangements or subject to a financing
condition. On February 12, 2016, the Federal Trade Commission granted early
termination of the waiting period under the HSR Act applicable to the Offer and
the Merger. With such early termination, the condition of the Offer relating to
the expiration or termination of the HSR Act waiting period has been satisfied.
The purpose of the Offer is
for CalAmp, through Purchaser, to acquire at least a 66 ⅔%
voting interest in LoJack as the first step in acquiring 100% of the equity
interests in LoJack. Following the consummation of the Offer, Purchaser intends
to effectuate the Merger.
THE BOARD OF DIRECTORS OF
LOJACK HAS UNANIMOUSLY (I) DETERMINED THAT THE MERGER AGREEMENT AND THE OFFER
AND THE MERGER ARE IN THE BEST INTERESTS OF THE SHAREHOLDERS OF LOJACK; (II)
ADOPTED THE MERGER AGREEMENT AND APPROVED AND DECLARED ADVISABLE THE OFFER, THE MERGER AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, IN ACCORDANCE WITH THE
REQUIREMENTS OF THE MBCA; AND (III) RESOLVED TO RECOMMEND ACCEPTANCE OF THE
OFFER AND, IF NECESSARY, APPROVAL OF THE MERGER AGREEMENT BY THE
SHAREHOLDERS OF LOJACK.
The Offer and withdrawal
rights expire at 12:00 midnight, Eastern time, on Monday, March 14, 2016 (one
minute after 11:59 P.M., Eastern time, on Monday, March 14, 2016), unless
extended or earlier terminated (the latest time and date on which the Offer
expires, as it may be extended, the Expiration Date). If
on or prior to the Expiration Date, all of the Offer Conditions (as defined in
the Merger Agreement) have not been satisfied, or waived by CalAmp or Purchaser
if permitted, Purchaser will (and CalAmp will cause Purchaser to) extend the
Offer for subsequent periods of up to ten (10) business days each (the length of
such period to be determined in good faith by CalAmp and LoJack) until the
earlier of (x) the date on which all of the Offer Conditions are satisfied or
waived or (y) the date on which the Merger Agreement is terminated. A subsequent
offering period would be an additional period of time, following the expiration
of the Offer and the purchase of Shares in the Offer, during which shareholders
may tender Shares not tendered in the Offer. A subsequent offering period, if
one is provided, is not an extension of the Offer, which already will have been
completed. CalAmp and Purchaser do not currently intend to provide a subsequent
offering period, although they reserve the right to do so.
Any extension, delay,
termination, waiver or amendment of the Offer will be followed as promptly as
practicable by public announcement thereof, such announcement in the case of an
extension to be made no later than 9:00 a.m., Eastern time, on the next business
day after the previously scheduled Expiration Date or the previously scheduled
termination of any subsequent offering period, as applicable, in accordance with
the public announcement requirements of Rule 14e-1(d) under the Exchange Act.
The procedures for guaranteed delivery described in Section 3 of the Offer to
Purchase may not be used during any subsequent offering period.
This transaction has not
been approved or disapproved by the Securities and Exchange Commission (the
SEC) or any state securities commission, nor has the
SEC or any state securities commission passed upon the fairness or merits of the
transaction or upon the accuracy or adequacy of the information contained in the
Offer to Purchase. Any representation to the contrary is a criminal offense.
For purposes of the Offer,
CalAmp and Purchaser will be deemed to have accepted for payment tendered Shares
when, as and if they give oral or written notice of the acceptance to
Computershare Trust Company, N.A., the depositary for the Offer (the
Depositary). Purchaser will pay for Shares accepted for
payment pursuant to the Offer by depositing the purchase price with the
Depositary, which will act as agent for the tendering shareholders for purposes
of receiving payments from Purchaser and transmitting such payments to the
tendering shareholders. Under no circumstances will
Purchaser pay interest on the consideration paid for tendered Shares, regardless
of any extension of or amendment to the Offer or any delay in making such
payment.
2
If you wish to tender Shares
to Purchaser and cannot deliver the share certificates evidencing those Shares
and all other required documents to the Depositary on or prior to the Expiration
Date, or you otherwise cannot comply with the procedures for book-entry transfer
of Shares held in book-entry form at The Depository Trust Company on a timely
basis, you may be able to tender such Shares pursuant to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase.
Tendering shareholders who
have Shares registered in their names and who tender directly to the Depositary
will not be charged brokerage fees or commissions or, except as set forth in the
Letter of Transmittal, transfer taxes on the purchase of Shares pursuant to the
Offer. Shareholders who hold their Shares through a broker or bank should
consult such institution as to whether it charges any service fees. Purchaser
will pay all charges and expenses of the Depositary and D.F. King & Co.,
Inc., which is acting as the information agent (the Information Agent). Following the consummation of the Offer,
Purchaser intends to effect the merger described below.
In all cases, Purchaser will
pay for Shares tendered and accepted for payment pursuant to the Offer only
after timely receipt by the Depositary of (i) certificates for such Shares (or a
confirmation of a book-entry transfer of such Shares into the Depositarys
account at the Book-Entry Transfer Facility (as defined in Section 3 of the
Offer to Purchase)), (ii) a properly completed and duly executed Letter of
Transmittal or Agents Message in lieu of a Letter of Transmittal and (iii) any
other required documents. For a description of the procedure for tendering
Shares pursuant to the Offer, see Section 3 in the Offer to Purchase.
Accordingly, payment may be made to tendering shareholders at different times if
delivery of the Shares and other required documents occurs at different times.
A shareholder may withdraw
Shares that it has previously tendered pursuant to the Offer by following the
procedures set forth below at any time before the Expiration Date. Thereafter,
such tenders are irrevocable, except that they may be withdrawn after Saturday,
April 16, 2016, unless such Shares have been accepted for payment as provided in
the Offer to Purchase. If CalAmp and Purchaser extend the Offer, delay
acceptance for payment or payment for Shares or are unable to accept for payment
or pay for Shares pursuant to the Offer for any reason, then, without prejudice
to CalAmps and Purchasers rights under the Offer, the Depositary may, on
CalAmps and Purchasers behalf, retain all Shares tendered, and such Shares may
not be withdrawn except as otherwise described in Section 4 of the Offer to
Purchase. For a withdrawal to be effective, a written transmission notice of
withdrawal with respect to the Shares must be timely received by the Depositary
at one of its addresses set forth on the back cover of the Offer to Purchase,
and the notice of withdrawal must specify the name of the person that tendered
the Shares to be withdrawn, the number of Shares to be withdrawn and the name of
the registered holder of Shares, if different from that of the person that
tendered such Shares. If the certificates evidencing Shares to be withdrawn have
been delivered to the Depositary, a signed notice of withdrawal with (except in
the case of Shares tendered by an Eligible Institution (as defined in the Offer
to Purchase)) signatures guaranteed by an Eligible Institution must be submitted
before the release of such Shares. In addition, such notice must specify, in the
case of Shares tendered by delivery of certificates, the name of the registered
holder (if different from that of the tendering shareholder) and the serial
numbers shown on the particular certificates evidencing the Shares to be
withdrawn or, in the case of Shares tendered by book-entry transfer, the name
and number of the account at the Book-Entry Transfer Facility to be credited
with the withdrawn Shares. See Section 4 of the Offer to Purchase.
All questions as to the form
and validity (including time of receipt) of notices of withdrawal will be
determined by Purchaser and CalAmp, in their sole discretion, and their
determination will be final and binding on all parties. No tender of Shares will
be deemed to have been validly made until all defects and irregularities have
been cured or waived to the satisfaction of Purchaser and CalAmp. None of
CalAmp, Purchaser, the Depositary, the Information Agent or any other person
will be under any duty to give notification of any defects or irregularities in
tenders, or any waiver thereof, or incur any liability for failure to give any
such notification. Withdrawals of tenders of Shares may not be rescinded, and
Shares validly withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. However, validly withdrawn Shares may be retendered by
again following the procedures described in the Offer to Purchase, at any time
prior to the Expiration Date or during any subsequent offering period if one is
provided (except that Shares may not be retendered using the procedures for
guaranteed delivery during any subsequent offering period).
LoJacks transfer agent,
American Stock Transfer & Trust Company, LLC (the Transfer Agent), has provided to Purchaser the list of LoJacks
shareholders and security position listings, including the most recent list of
names, addresses and security positions of non-objecting beneficial owners in
the possession of LoJack or the Transfer
Agent, for the purpose of disseminating the Offer to holders of Shares. The
Offer to Purchase, the related Letter of Transmittal and other related materials
are being 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 shareholder list or, if applicable,
who are listed as participants in a clearing agencys security position listing,
for subsequent transmittal to beneficial owners of Shares.
3
In general, the receipt of
cash in exchange for Shares pursuant to the Offer will be a taxable transaction
for U.S. federal income tax purposes. See Section 5 of the Offer to Purchase.
Each holder of Shares should
consult its own tax advisor about the particular tax consequences to you of
tendering your Shares in the Offer (including the application and effect of any
state, local or non-U.S. income and other tax laws).
The information required to be
disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended, is contained in the Offer
to Purchase and is incorporated herein by reference.
The Offer to Purchase and
the related Letter of Transmittal contain important information and both
documents should be read carefully and in their entirety before any decision is
made with respect to the Offer.
Questions or requests for
assistance may be directed to the Information Agent at the telephone numbers,
address and/or email addresses set forth below. Requests for copies of the Offer
to Purchase, the related Letter of Transmittal and all other tender offer
materials may be directed to the Information Agent or brokers, dealers,
commercial banks and trust companies, and copies will be furnished promptly at
Purchasers expense. Shareholders may also contact their broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for
the Offer is:
D.F. King & Co., Inc.
48 Wall Street, 22nd
Floor
New York, New York 10005
Banks and Brokers Call
Collect: (212) 269-5550
All Others Call Toll Free: (866) 828-0221
Email:
lojack@dfking.com
February 16, 2016
4
|
|
Exhibit
(a)(5)(A) |
|
N E W S B U L L E T I
N |
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FROM: |
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|
FOR IMMEDIATE RELEASE
CALAMP COMMENCES
TENDER OFFER FOR
ALL OUTSTANDING SHARES OF LOJACK
OXNARD, CA and CANTON, MA February 16, 2016 CalAmp Corp. (NASDAQ: CAMP) (CalAmp) and LoJack
Corporation (NASDAQ: LOJN) (LoJack) today announced that CalAmps wholly-owned
subsidiary, Lexus Acquisition Sub, Inc. (Purchaser), is commencing a cash
tender offer to purchase all outstanding shares of LoJack. CalAmp and LoJack
previously announced on Monday, February 1, 2016 that they had entered into a
definitive merger agreement under which CalAmp would acquire
LoJack.
The tender offer is being made pursuant to an Offer to Purchase, dated as
of the date hereof. Upon successful completion of the tender offer, shareholders
of LoJack will receive $6.45 in cash for each share of LoJack common stock
validly tendered and not validly withdrawn in the offer, without interest and
less any applicable withholding tax.
CalAmp and Purchaser will file today with the U.S. Securities and
Exchange Commission (the SEC) a Tender Offer Statement on Schedule TO that
includes the Offer to Purchase and related Letter of Transmittal that set forth
the terms and conditions of the tender offer. Additionally, LoJack will file
with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 that
includes the recommendation of the LoJack board of directors that LoJack
shareholders tender their shares in the tender offer.
The tender offer will expire at 12:00 midnight (Eastern time) on Monday,
March 14, 2016, unless the offer period is extended in accordance with the
definitive merger agreement and the applicable rules and regulations of the SEC.
The completion of the tender offer will be conditioned on LoJacks shareholders
tendering at least 66 ⅔% of LoJacks
outstanding shares, determined on a fully diluted basis, and other customary
closing conditions.
D.F. King & Co., Inc. is acting as information agent for CalAmp in
the tender offer. Computershare Trust Company, N.A. is acting as depositary and
paying agent in the tender offer. Requests for documents and questions regarding
the tender offer may be directed to D.F. King & Co., Inc. by telephone at
(212) 269-5550 (collect) or (866) 828-0221 (toll-free), or by email at
lojack@dfking.com.
Advisors
Canaccord Genuity is serving as financial advisor
to CalAmp, and Gibson, Dunn & Crutcher LLP is serving as its legal counsel.
Pacific Crest Securities, a division of KeyBanc Capital Markets Inc.,
is
serving as financial advisor to LoJack, and Goodwin Procter LLP is serving as
its legal counsel.
About CalAmp Corp.
CalAmp is a proven
leader in providing wireless communications solutions to a broad array of
vertical market applications and customers. CalAmps extensive portfolio of
intelligent communications devices, robust and scalable cloud service platform,
and targeted software applications streamline otherwise complex
Machine-to-Machine (M2M) deployments. These solutions enable customers to
optimize their operations by collecting, monitoring and efficiently reporting
business critical data and desired intelligence from high-value mobile and
remote assets. For more information, please visit www.calamp.com.
About LoJack Corporation
LoJack, the company
that has helped more than nine million people protect their vehicles in the
event of theft over the past 25+ years, today provides safety, security and
protection for an ever-growing range of valuable assets and people. Leveraging
its core strengths, including its well-known brand, direct integration with law
enforcement and dealer distribution network, LoJack is expanding our business to
include our traditional vehicle and equipment theft recovery, people at risk and
new telematics-based products and services. LoJack is delivering new
telematics-based solutions for on-road and off-road fleet management, as well as
dealer inventory management. By expanding our brand beyond stolen vehicle
recovery, LoJack is committed to creating a new level of value for its dealer,
licensee, customer and investor communities by delivering innovative offerings
and multiple technologies in expanding geographies. For more information, visit
www.lojack.com.
Forward-Looking Statements
This release contains
forward-looking statements related to the proposed transaction and business
combination between CalAmp and LoJack, including statements regarding the
benefits and timing of the transaction, as well as statements regarding the
companies products, markets and growth opportunities. Forward-looking
statements are predictions, projections and other statements about future events
that are based on current expectations and assumptions and, as a result, are
subject to risks and uncertainties. Many factors could cause actual future
events to differ materially from the forward-looking statements in this release,
including the following, among others: the minimum percentage of tendered shares
in the tender offer necessary to complete the offer or the second-step merger
promptly following the offer may not be attained; closing of the transaction may
not occur or may be delayed; expected synergies and other financial benefits of
the transaction may not be realized; integration of the acquisition post-closing
may not occur as anticipated; litigation or alternative dispute resolution
related to the transaction or limitations or restrictions imposed by regulatory
authorities may delay or negatively impact the transaction; the pendency of the
transaction may result in disruptions to LoJacks business and make it more
difficult to maintain relationships with employees, customers, vendors and other
business partners; delays, disruptions or increased costs in the integration of
LoJacks technology in existing or new products and services may arise;
unanticipated restructuring costs may be incurred; attempts to retain key
personnel and customers may not succeed; the business combination or the
combined companies products may not be supported by third parties; actions by
competitors may negatively impact results; and there may be negative changes in
general economic conditions in the regions or the industries in which CalAmp and
LoJack operate. In addition, please refer to the documents that CalAmp and LoJack
file with the SEC on Forms 10-K, 10-Q, and 8-K, including the specific risk
factors included in such filings. These filings identify and address other
important risks and uncertainties that could cause events and results to differ
materially from those contained in the forward-looking statements set forth in
this release. Readers are cautioned not to put undue reliance on these
forward-looking statements, and CalAmp and LoJack assume no obligation to
update, and do not intend to update, these forward-looking statements, whether
as a result of new information, future events or
otherwise.
Additional Information
This release relates
to a pending business combination transaction between CalAmp and LoJack. No
statement in this release constitutes an offer to buy, or the solicitation of an
offer to sell, any securities. A solicitation and an offer to buy shares of
LoJack will be made only pursuant to an offer to purchase and related materials
that CalAmp files with the SEC. CalAmp is filing today a Tender Offer Statement
on Schedule TO related to the transaction with the SEC and may file amendments
thereto, and thereafter LoJack will file a Solicitation/Recommendation Statement
on Schedule 14D-9 with respect to the tender offer. CalAmp and LoJack may also
file other documents with the SEC regarding the transaction. This document is
not a substitute for Schedule TO, the Schedule 14D-9 or any other document that
CalAmp or LoJack may file with the SEC in connection with the transaction.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE SCHEDULE TO (INCLUDING THE
OFFER TO PURCHASE, THE RELATED LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS),
THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 AND THE OTHER
RELEVANT MATERIALS WITH RESPECT TO THE TRANSACTION CAREFULLY AND IN THEIR
ENTIRETY WHEN THEY BECOME AVAILABLE BEFORE MAKING ANY INVESTMENT DECISION WITH
RESPECT TO THE TRANSACTION, BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION.
The Tender Offer Statement on Schedule TO and the
Solicitation/Recommendation Statement on Schedule 14D-9 (when available) will be
sent free of charge to LoJacks shareholders. Such materials (and all other
offer documents filed with the SEC) will be available at no charge on the SEC's
Web site: www.sec.gov or by directing such
requests to the Information Agent for the tender offer who will be named in the
Tender Offer Statement. In addition, copies of LoJacks filings with the SEC may
also be obtained free of charge at the Investor Relations section of LoJacks
website at http://investors.lojack.com/financials.cfm.
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