-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BRxUEP0B1xoQMRFRS5qW5g61e1p2CD7Ft7Z5suhikdjMfKJMIG6x0W6E5fXzoiMS 1dHef7rAsthBqm4Ia1E6uw== 0000889812-96-000553.txt : 19960525 0000889812-96-000553.hdr.sgml : 19960525 ACCESSION NUMBER: 0000889812-96-000553 CONFORMED SUBMISSION TYPE: SC 14D1 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19960524 SROS: NYSE GROUP MEMBERS: GAC ACQUISITION I CORP. GROUP MEMBERS: GENERAL ELECTRIC CAPITAL CORP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERIDATA TECHNOLOGIES INC CENTRAL INDEX KEY: 0000876346 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-COMPUTER & PERIPHERAL EQUIPMENT & SOFTWARE [5045] IRS NUMBER: 061302103 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-42131 FILM NUMBER: 96572405 BUSINESS ADDRESS: STREET 1: 700 CANAL ST CITY: STAMFORD STATE: CT ZIP: 06902 BUSINESS PHONE: 2033571464 FORMER COMPANY: FORMER CONFORMED NAME: SAGE TECHNOLOGIES INC DATE OF NAME CHANGE: 19931203 FORMER COMPANY: FORMER CONFORMED NAME: SAGE ALERTING SYSTEMS INC DATE OF NAME CHANGE: 19930328 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERIDATA TECHNOLOGIES INC CENTRAL INDEX KEY: 0000876346 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-COMPUTER & PERIPHERAL EQUIPMENT & SOFTWARE [5045] IRS NUMBER: 061302103 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 SEC ACT: 1934 Act SEC FILE NUMBER: 005-42131 FILM NUMBER: 96572406 BUSINESS ADDRESS: STREET 1: 700 CANAL ST CITY: STAMFORD STATE: CT ZIP: 06902 BUSINESS PHONE: 2033571464 FORMER COMPANY: FORMER CONFORMED NAME: SAGE TECHNOLOGIES INC DATE OF NAME CHANGE: 19931203 FORMER COMPANY: FORMER CONFORMED NAME: SAGE ALERTING SYSTEMS INC DATE OF NAME CHANGE: 19930328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL ELECTRIC CAPITAL CORP CENTRAL INDEX KEY: 0000040554 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE LESSORS [6172] IRS NUMBER: 131500700 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 BUSINESS ADDRESS: STREET 1: 260 LONG RIDGE RD CITY: STAMFORD STATE: CT ZIP: 06927 BUSINESS PHONE: 2033574000 MAIL ADDRESS: STREET 1: 260 LONG RIDGE ROAD CITY: STAMFORD STATE: CT ZIP: 06927 FORMER COMPANY: FORMER CONFORMED NAME: GENERAL ELECTRIC CREDIT CORP DATE OF NAME CHANGE: 19871216 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL ELECTRIC CAPITAL CORP CENTRAL INDEX KEY: 0000040554 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE LESSORS [6172] IRS NUMBER: 131500700 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 BUSINESS ADDRESS: STREET 1: 260 LONG RIDGE RD CITY: STAMFORD STATE: CT ZIP: 06927 BUSINESS PHONE: 2033574000 MAIL ADDRESS: STREET 1: 260 LONG RIDGE ROAD CITY: STAMFORD STATE: CT ZIP: 06927 FORMER COMPANY: FORMER CONFORMED NAME: GENERAL ELECTRIC CREDIT CORP DATE OF NAME CHANGE: 19871216 SC 14D1 1 TENDER OFFER STATEMENT - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-1 TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES AND EXCHANGE ACT OF 1934 AND SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 ------------------------ AMERIDATA TECHNOLOGIES, INC. (NAME OF SUBJECT COMPANY) ------------------------ GAC ACQUISITION I CORP. GENERAL ELECTRIC CAPITAL CORPORATION (BIDDERS) ------------------------ COMMON STOCK, $.01 PAR VALUE (TITLE OF CLASS OF SECURITIES) ------------------------ 03069V 10 3 (CUSIP NUMBER OF CLASS OF SECURITIES) ------------------------ NANCY E. BARTON, ESQ. GENERAL ELECTRIC CAPITAL CORPORATION 260 LONG RIDGE ROAD STAMFORD, CONNECTICUT 06927 (203) 357-4000 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS) Copies to: WILLIAM M. GUTOWITZ, ESQ. WEIL, GOTSHAL & MANGES LLP 767 FIFTH AVENUE NEW YORK, NEW YORK 10153 (212) 310-8000 ------------------------ MAY 20, 1996 (DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT) CALCULATION OF FILING FEE ================================================================================ TRANSACTION VALUATION* AMOUNT OF FILING FEE - -------------------------------------------------------------------------------- $496,664,240 $99,333 ================================================================================ * Estimated for purposes of calculating the amount of the filing fee only. The amount assumes the purchase of 31,041,515 shares of common stock, $.01 par value (the 'Shares'), at a price per Share of $16 in cash. Such number of Shares represents all the Shares outstanding as of May 20, 1996 and assumes the exercise of all existing options, warrants and other rights to acquire Shares from the Company. / / Check box if any part of this 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: None Filing Party: Not Applicable Form or Registration No.: Not Applicable Date Filed: Not Applicable Page 1 of Pages (Exhibit Index is located on Page ) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SCHEDULE 14D-1 CUSIP No. 03069V 10 3 Page __ of __ Pages 1 NAME OF REPORTING PERSONS GAC Acquisition I Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Applied For 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f) / / N/A 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware 7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,819,771* 8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES / / N/A 9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7) 8%* 10 TYPE OF REPORTING PERSON CO - ------------------ * On May 20, 1996, General Electric Capital Corporation, a New York corporation ('Parent'), and GAC Acquisition I Corp., a Delaware corporation and an indirect wholly-owned subsidiary of Parent ('Purchaser'), entered into a Stockholders Agreement (the 'Stockholders Agreement') with certain stockholders of AmeriData Technologies, Inc. (collectively, the 'Selling Stockholders'), pursuant to which the Selling Stockholders have agreed to validly tender (and not to withdraw) pursuant to and in accordance with the terms of the Offer all of the Shares beneficially owned by them. The Selling Stockholders beneficially own approximately 1,819,771 Shares, representing approximately 8%, in the aggregate of the Company's outstanding common stock (assuming the exercise of all of such Selling Stockholders' options subject to the Stockholders Agreement). The Stockholders Agreement is described more fully in Section 12 of the Offer to Purchase, dated May 24, 1996. 2 SCHEDULE 14D-1 CUSIP No. 03069V 10 3 Page __ of __ Pages 1 NAME OF REPORTING PERSONS General Electric Capital Corporation S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS 13-1500700 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(e) OR 2(f) / / N/A 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of New York 7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,819,771* 8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES / / N/A 9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7) 8%* 10 TYPE OF REPORTING PERSON CO - ------------------ * The footnote on page 2 is incorporated by reference herein. 3 TENDER OFFER This Tender Offer Statement on Schedule 14D-1 is filed by GAC Acquisition I Corp., a Delaware corporation ('Purchaser'), and General Electric Capital Corporation ('Parent'), a New York corporation and the indirect owner of all of the outstanding capital stock of Purchaser, relating to the offer by Purchaser to purchase all outstanding shares of common stock, $.01 par value (the 'Shares'), of AmeriData Technologies, Inc. (the 'Company'), at $16 per Share, net to the seller in cash, on the terms and subject to the conditions set forth in the Offer to Purchase, dated May 24, 1996 (the 'Offer to Purchase'), and in the related Letter of Transmittal and any amendments or supplements thereto, copies of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively (which collectively constitute the 'Offer'). This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement on Schedule 13D with respect to the acquisition by Parent and Purchaser of beneficial ownership of the Selling Stockholders' Shares. The item numbers and responses thereto below are in accordance with the requirements of Schedule 14D-1. ITEM 1. SECURITY AND SUBJECT COMPANY (a) The name of the subject company is AmeriData Technologies, Inc., a Delaware corporation (the 'Company'). The address of the Company's principal executive offices is 700 Canal Street, Stamford, Connecticut 06902. (b) The information set forth on the cover page and under 'Introduction' in the Offer to Purchase is incorporated herein by reference. (c) The information set forth in Section 6 of the Offer to Purchase is incorporated herein by reference. ITEM 2. IDENTITY AND BACKGROUND This Statement is filed by Purchaser and Parent. The information set forth on the cover page, under 'Introduction,' in Section 9 and in Schedule I of the Offer to Purchase is incorporated herein by reference. ITEM 3. PAST CONTACTS, TRANSACTIONS, OR NEGOTIATIONS WITH THE SUBJECT COMPANY (a) The information set forth in Section 11 of the Offer to Purchase is incorporated herein by reference. (b) The information set forth under 'Introduction' and in Sections 9, 11 and 12 of the Offer to Purchase is incorporated herein by reference. ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION (a)-(b) The information set forth in Section 10 of the Offer to Purchase is incorporated herein by reference. (c) Not applicable. ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER (a)-(e) The information set forth in Section 12 of the Offer to Purchase is incorporated herein by reference. (f)-(g) The information set forth in Section 7 of the Offer to Purchase is incorporated herein by reference. ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY (a)-(b) The information set forth under 'Introduction' and in Sections 9, 11 and 12 of the Offer to Purchase is incorporated herein by reference. ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SUBJECT COMPANY'S SECURITIES The information set forth under 'Introduction' and in Sections 9, 11, 12 and 13 of the Offer to Purchase is incorporated herein by reference. 4 ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED The information set forth under 'Introduction' and in Section 16 of the Offer to Purchase is incorporated herein by reference. ITEM 9. FINANCIAL STATEMENTS TO CERTAIN BIDDERS The information set forth in Section 9 of the Offer to Purchase is incorporated herein by reference. ITEM 10. ADDITIONAL INFORMATION (a) The information set forth under 'Introduction' and in Sections 11 and 12 of the Offer to Purchase is incorporated herein by reference. (b)-(c),(e) The information set forth in Section 15 of the Offer to Purchase is incorporated herein by reference. (d) The information set forth in Section 7 of the Offer to Purchase is incorporated herein by reference. (f) The information set forth in the Offer to Purchase and the Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively, is incorporated herein by reference. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS (a)(1) Offer to Purchase, dated May 24, 1996. (a)(2) Letter of Transmittal. (a)(3) Notice of Guaranteed Delivery. (a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(7) Form of Summary Advertisement, dated May 24, 1996. (a)(8) Text of Joint Press Release, dated May 20, 1996, by Parent and the Company. (b) Not applicable. (c)(1) Agreement and Plan of Merger, dated May 20, 1996, among Parent, Purchaser and the Company. (c)(2) Stockholders Agreement, dated May 20, 1996, among Parent, Purchaser and the Selling Stockholders. (d) None (e) Not applicable (f) None (g)(1) Complaint filed in Steiner v. AmeriData Technologies, Inc. et al. filed in the Court of Chancery of the State of Delaware in and for New Castle County on May 21, 1996. 5 SIGNATURES 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: May 24, 1996 GENERAL ELECTRIC CAPITAL CORPORATION By: /s/ MICHAEL S. FORD Name: Michael S. Ford Title: Vice President GAC ACQUISITION I CORP. By: /s/ MICHAEL S. FORD Name: Michael S. Ford Title: President EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE - ------- ----------------------------------------------------------------- ---- (a)(1) Offer to Purchase, dated May 24, 1996............................ (a)(2) Letter of Transmittal............................................ (a)(3) Notice of Guaranteed Delivery.................................... (a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees................................................... (a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees............................... (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.............................................. (a)(7) Form of Summary Advertisement, dated May 24, 1996................ (a)(8) Text of Joint Press Release, dated May 20, 1996, by Parent and the Company...................................................... (c)(1) Agreement and Plan of Merger, dated as of May 20, 1996, among Parent, Purchaser and the Company................................ (c)(2) Stockholders Agreement, dated as of May 20, 1996, among Parent, Purchaser and the Selling Stockholders........................... (d) None............................................................. (e) Not Applicable................................................... (f) None............................................................. (g)(1) Complaint filed in Steiner v. AmeriData Technologies, Inc. et al. filed in the Court of Chancery of the State of Delaware in and for New Castle County on May 21, 1996............................
EX-99.(A)(1) 2 OFFER TO PURCHASE, DATED MAY 24, 1996 Offer to Purchase for Cash All Outstanding Shares of Common Stock of AMERIDATA TECHNOLOGIES, INC. at $16 NET PER SHARE by GAC ACQUISITION I CORP. an indirect wholly-owned subsidiary of GENERAL ELECTRIC CAPITAL CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY AND ITS STOCKHOLDERS, HAS APPROVED THE MERGER AGREEMENT, THE STOCKHOLDERS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND THE STOCKHOLDERS AGREEMENT, INCLUDING THE OFFER AND THE MERGER, AND RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE OFFER AND TENDER ALL OF THEIR SHARES PURSUANT THERETO. PARENT AND PURCHASER HAVE ENTERED INTO A STOCKHOLDERS AGREEMENT WITH CERTAIN STOCKHOLDERS PURSUANT TO WHICH, AMONG OTHER THINGS, SUCH STOCKHOLDERS HAVE AGREED TO TENDER IN THE OFFER, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE STOCKHOLDERS AGREEMENT, APPROXIMATELY 8% OF THE COMPANY'S OUTSTANDING SHARES (ASSUMING THE EXERCISE OF SUCH STOCKHOLDERS' OPTIONS SUBJECT TO THE STOCKHOLDERS AGREEMENT). THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) A NUMBER OF THE COMPANY'S SHARES REPRESENTING A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER, (2) PREFERRED SECURITIES OUTSTANDING ON MAY 20, 1996 HAVING AN AGGREGRATE LIQUIDATION PREFERENCE OF MORE THAN 50% OF THE AGGREGATE LIQUIDATION PREFERENCE OF ALL PREFERRED SECURITIES OUTSTANDING ON MAY 20, 1996 HAVING BEEN CONVERTED BY THE HOLDERS THEREOF INTO SHARES PRIOR TO THE EXPIRATION OF THE OFFER AND (3) THE RECEIPT OF CERTAIN REGULATORY CONSENTS AND APPROVALS. SEE INTRODUCTION AND SECTIONS 1, 14 AND 15 OF THIS OFFER TO PURCHASE. ------------------------ IMPORTANT Any stockholder desiring to tender all or a portion of that stockholder's shares of common stock, par value $.01 per share, of the Company (the 'Shares') should either (1) complete and sign the Letter of Transmittal (or a manually signed facsimile thereof) in accordance with the instructions in the Letter of Transmittal, mail or deliver it and any other required documents to the Depositary and either deliver the certificates for those Shares to the Depositary along with the Letter of Transmittal or tender those Shares pursuant to the procedures for book-entry transfer set forth in Section 3 hereof, or (2) request such stockholder's broker, dealer, commercial bank, trust company or other nominee to effect the transaction for the stockholder. Any stockholder whose Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact that broker, dealer, commercial bank, trust company or other nominee, if the stockholder wishes to tender such Shares. Any stockholder who wishes to tender Shares and whose certificates representing those Shares are not immediately available or who cannot comply with the procedure for book-entry transfer on a timely basis should tender those Shares by following the procedures for guaranteed delivery set forth in Section 3. Questions and requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth on the back cover of this Offer to Purchase. Requests for additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other related materials may be directed to the Information Agent or to brokers, dealers, commercial banks and trust companies. ------------------------ The Dealer Manager for the Offer is: LAZARD FRERES & CO. LLC May 24, 1996 TABLE OF CONTENTS
PAGE ---- INTRODUCTION.......................................................... 1 1. Terms of the Offer.......................................... 2 2. Acceptance for Payment and Payment for Shares............... 4 3. Procedure for Tendering Shares.............................. 5 4. Withdrawal Rights........................................... 7 5. Certain Federal Income Tax Consequences of the Offer and the Merger...................................................... 8 6. Price Range of the Shares; Dividends on the Shares.......... 9 7. Effect of the Offer on the Market for the Shares, Stock Exchange Listing and Exchange Act Registration and Margin Securities.................................................. 9 8. Certain Information Concerning the Company.................. 10 9. Certain Information Concerning Purchaser, Parent, GE Capital Services and GE............................................. 12 10. Source and Amount of Funds.................................. 13 11. Background.................................................. 14 12. Purpose of the Offer and the Merger; Plans for the Company; the Merger Agreement; the Stockholders Agreement; Other Agreements.................................................. 15 13. Dividends and Distributions................................. 26 14. Certain Conditions of the Offer............................. 27 15. Certain Legal Matters....................................... 29 16. Fees and Expenses........................................... 35 17. Miscellaneous............................................... 35
i TO THE HOLDERS OF COMMON STOCK OF AMERIDATA TECHNOLOGIES, INC.: INTRODUCTION GAC Acquisition I Corp., a Delaware corporation ('Purchaser'), hereby offers to purchase all the outstanding shares of common stock, $.01 par value (the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation (the 'Company'), at a purchase price of $16 per Share (the 'Offer Price'), net to the seller in cash, upon the terms and subject to the conditions set forth in this Offer to Purchase and in the related Letter of Transmittal (which, together with any amendments or supplements hereto or thereto, collectively constitute the 'Offer'). Purchaser is an indirect, wholly-owned subsidiary of General Electric Capital Corporation, a New York corporation ('Parent'). Parent is an indirect wholly-owned subsidiary of General Electric Company, a New York corporation ('GE'). The Offer is being made pursuant to an Agreement and Plan of Merger, dated May 20, 1996 (the 'Merger Agreement'), among Parent, Purchaser and the Company. The Merger Agreement provides, among other things, for the commencement of the Offer by Purchaser and further provides that, after the purchase of Shares pursuant to the Offer and subject to the satisfaction or waiver of certain conditions set forth therein, Purchaser will be merged with and into the Company (the 'Merger'), with the Company surviving the Merger as an indirect wholly-owned subsidiary of Parent (the 'Surviving Corporation'), which shall continue under the name 'AmeriData Technologies, Inc.' In the Merger, each Share issued and outstanding (excluding Shares owned, directly or indirectly, by the Company or any wholly-owned subsidiary of the Company or by Parent, Purchaser or any other wholly-owned subsidiary of Parent and excluding Shares owned by stockholders of the Company who shall have properly perfected their appraisal rights under Delaware law) immediately prior to the effective time of the Merger (the 'Effective Time') will be converted at the Effective Time into the right to receive the Offer Price in cash, without any interest thereon (the 'Merger Consideration'). It is currently contemplated that following the consummation of the Merger, Parent will cause to be effected the merger (the 'Second-Step Merger') of the Surviving Corporation with and into a direct wholly-owned subsidiary of Parent, with such subsidiary being the surviving corporation in the Second-Step Merger. See Section 12 for a discussion of the Second-Step Merger. THE BOARD OF DIRECTORS OF THE COMPANY (THE 'BOARD') HAS UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY AND THE COMPANY'S STOCKHOLDERS (THE 'STOCKHOLDERS'); HAS APPROVED THE MERGER AGREEMENT, THE STOCKHOLDERS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND THE STOCKHOLDERS AGREEMENT, INCLUDING THE OFFER AND THE MERGER; AND RECOMMENDS THAT THE STOCKHOLDERS ACCEPT THE OFFER AND TENDER ALL OF THEIR SHARES PURSUANT THERETO. ALEX. BROWN & SONS, INC., THE COMPANY'S FINANCIAL ADVISOR ('ALEX BROWN'), HAS DELIVERED TO THE COMPANY ITS WRITTEN OPINION THAT THE CONSIDERATION TO BE RECEIVED BY HOLDERS OF THE SHARES IN THE OFFER AND THE MERGER AS CONTEMPLATED BY THE MERGER AGREEMENT IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO SUCH STOCKHOLDERS. A COPY OF THE WRITTEN OPINION OF ALEX BROWN IS CONTAINED IN THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 ('SCHEDULE 14D-9') FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE 'COMMISSION') IN CONNECTION WITH THE OFFER, A COPY OF WHICH IS BEING FURNISHED TO STOCKHOLDERS CONCURRENTLY WITH THIS OFFER TO PURCHASE. The Offer is conditioned upon, among other things, (i) a number of the Shares representing a majority of all outstanding Shares on a fully diluted basis being validly tendered and not withdrawn prior to the Expiration Date (as defined in Section 1 hereof) (the 'Minimum Tender Condition'); (ii) Preferred Securities (as defined below) outstanding on May 20, 1996 having an aggregate liquidation preference of more than 50% of the aggregate liquidation preference of all Preferred Securities outstanding on May 20, 1996 having been converted by the holders thereof into Shares prior to the expiration of the Offer (the 'Preferred Securities Condition'); and (3) the receipt of certain regulatory consents and approvals. See Sections 1 and 14, which set forth the conditions of the Offer, and Section 15, which discusses certain legal matters and regulatory consents and approvals. 1 The Company has represented and warranted to Purchaser that, as of May 20, 1996, 22,281,302 Shares (excluding (i) 64,550 Shares to be issued pursuant to the Company's restricted stock award plan (the 'Restricted Stock Award Plan') and (ii) 113,732 Shares to be issued pursuant to an acquisition agreement previously entered into by the Company) were issued and outstanding, 2,310,512 Shares were reserved for issuance pursuant to outstanding stock options granted by the Company ('Company Options'), 1,458,041 Shares were reserved for issuance pursuant to the Company's stock purchase plan, 3,521,576 Shares were reserved for issuance upon conversion of the Company's 8% convertible subordinated debentures held by Delaware LLC (as defined below) (the 'Subordinated Debentures') and 2,418,737 Shares were reserved for issuance pursuant to certain warrants to purchase Shares issued by the Company (the 'Company Warrants'). According to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1996 (the 'Company 10-Q'), AmeriData Delaware, L.L.C., a special purpose limited liability company of which the Company, directly or indirectly, owns all of the outstanding equity interests other than the Preferred Securities ('Delaware LLC'), has outstanding, as of March 31, 1996, 8% Convertibile Fixed Life Aggregated Securities ('Preferred Securities') having a liquidation preference of $25 per security and an aggregate liquidation preference of $30,880,000. The Company 10-Q also indicates that the Preferred Securities are guaranteed in certain respects by the Company and are convertible into Shares at 2.851 shares for each Preferred Security. The consummation of the Merger is subject to the satisfaction or waiver of a number of conditions, including, if required, the approval of the Merger by the requisite vote or consent of the Stockholders. Under the Delaware General Corporation Law (the 'DGCL'), the stockholder vote necessary to approve the Merger will be the affirmative vote of at least a majority of the outstanding Shares, including Shares held by Purchaser and its affiliates. If the Minimum Tender Condition is satisfied and Purchaser purchases at least a majority of the outstanding Shares in the Offer, Purchaser will be able to effect the Merger without the affirmative vote of any other Stockholders. If Purchaser acquires at least 90% of the outstanding Shares pursuant to the Offer or otherwise, Purchaser will be able to effect the Merger pursuant to the 'short-form' merger provisions of Section 253 of the DGCL, without prior notice to, or any action by, any other Stockholder. In that event, Purchaser intends to effect the Merger as promptly as practicable following the purchase of Shares in the Offer. See Section 12. The Merger Agreement is more fully described in Section 12. Certain federal income tax consequences of the sale of Shares pursuant to the Offer and the exchange of Shares for the Merger Consideration pursuant to the Merger are described in Section 5. Tendering Stockholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 to the Letter of Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer or the Merger. Purchaser will pay all charges and expenses of Lazard Freres & Co. LLC ('Lazard Freres'), as the dealer manager (the 'Dealer Manager'), The Chase Manhattan Bank (National Association), as the depositary (the 'Depositary'), and Georgeson & Company Inc., as the information agent (the 'Information Agent'), in connection with the Offer. See Section 16. THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO 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), Purchaser will accept for payment (and thereby purchase) all Shares that are validly tendered and not withdrawn in accordance with Section 4 below prior to the Expiration Date. As used in the Offer, the term 'Expiration Date' means 12:00 midnight, New York City time, on Friday, June 21, 1996, unless and until Purchaser, in accordance with the terms of the Offer and the Merger Agreement, shall have extended the period of time during which the Offer is open, in which event the term 'Expiration Date' means the latest time and date at which the Offer, as so extended, expires. As used in this Offer to Purchase, 'business day' has the meaning set forth in Rule 14d-1(c)(6) under the Securities Exchange Act of 1934, as amended (the 'Exchange Act'). In the event that the Offer is not consummated, Purchaser may seek to acquire additional Shares through open market purchases, privately negotiated transactions or otherwise, upon such terms and conditions and at 2 such prices as it shall determine, which may be more or less than the Offer Price and could be for cash or other consideration. The Offer is conditioned upon, among other things, satisfaction of the Minimum Tender Condition, the Preferred Securities Condition, the expiration or termination of all waiting periods imposed by the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the 'HSR Act') and the receipt of all required regulatory consents and approvals, including the consent of the Federal Communications Commission (the 'FCC') and certain foreign regulatory consents and approvals. See Section 15 for a full discussion of required regulatory consents and approvals. The Offer is also subject to certain other conditions that are set forth in Section 14 below. Pursuant to the terms of the Merger Agreement, Purchaser expressly reserves the right (but will not be obligated) to waive any or all of the conditions of the Offer. Subject to the terms of the Merger Agreement, if any condition to the Offer is not satisfied, Purchaser may extend the Offer (x) for up to twenty (20) business days after the initial expiration date or (y) for longer periods (not to exceed 120 calendar days from the date of the Offer to Purchase). Purchaser may also extend the Offer as required by law or the applicable rules and regulations of the Commission. Subject to the terms of the Merger Agreement, Purchaser expressly reserves the right, subject to applicable law, to extend the period of time during which the Offer is open by giving oral or written notice of such extension to the Depositary and by making a public announcement of such extension. There can be no assurance that Purchaser will exercise its right to extend the Offer. Purchaser also expressly reserves the right, subject to applicable law (including applicable rules and regulations of the Commission promulgated under the Exchange Act) and the terms of the Merger Agreement, at any time or from time to time, to (i) delay acceptance for payment of, or payment for, any Shares, regardless of whether the Shares were theretofore accepted for payment, or to terminate the Offer and not accept for payment or pay for any Shares not theretofore accepted for payment or paid for, upon the occurrence of any of the conditions specified in Section 14 below, by giving oral or written notice of such delay in payment or termination to the Depositary, and (ii) waive any conditions or otherwise amend the Offer in any respect, by giving oral or written notice to the Depositary. Any extension, delay in payment, termination or amendment will be followed as promptly as practicable by public announcement, the announcement in the case of an extension to be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which Purchaser may choose to make any public announcement, Purchaser will have no obligation to publish, advertise or otherwise communicate any such announcement, other than by issuing a release to the Dow Jones News Service or as otherwise required by law. The reservation by Purchaser of the right to delay acceptance for payment of or payment for Shares is subject to the provisions of Rule 14e-1(c) under the Exchange Act, which requires that Purchaser pay the consideration offered or return the Shares deposited by or on behalf of Stockholders promptly after the termination or withdrawal of the Offer. Subject to the terms of the Merger Agreement, Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer, except that without the prior written consent of the Company, Purchaser shall not (i) decrease or change the form of the Offer Price or decrease the number of Shares sought pursuant to the Offer, (ii) impose additional conditions to the Offer, or (iii) amend any term of the Offer in any manner adverse to Stockholders. Assuming the prior satisfaction or waiver of the conditions to the Offer, Purchaser shall accept for payment, and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the Expiration Date. If Purchaser makes a material change in the terms of the Offer or the information concerning the Offer or waives a material condition of the Offer, Purchaser will disseminate additional tender offer materials and extend the Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period during which an offer must remain open following material changes in the terms of the Offer or information concerning the Offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances then existing, including the relative materiality of the changed terms or information. If Purchaser decides to increase or, subject to the consent of the Company, to decrease the consideration in the Offer, or to change or waive the Minimum Tender Condition and if, at the time that notice of any such change or waiver is first published, sent or given to Stockholders, the Offer is scheduled to expire at any 3 time earlier than the tenth business day after (and including) the date of that notice, the Offer will be extended at least until the expiration of that period of ten business days. The Company has provided Purchaser with its stockholder list and security position listings for the purpose of disseminating the Offer to Stockholders. This Offer to Purchase, the related Letter of Transmittal and other relevant materials will be mailed to record holders of Shares and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the Company's stockholder list or, if applicable, who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of Shares. 2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES Upon the terms and subject to the conditions of the Merger Agreement and the Offer (including, if the Offer is extended or amended, the terms and conditions of any such extension or amendment), Purchaser will accept for payment, and will pay for, all Shares that are validly tendered on or prior to the Expiration Date, and not properly withdrawn in accordance with Section 4 below, as soon as practicable after the Expiration Date. All questions as to the satisfaction of such terms and conditions will be determined by Purchaser in its sole discretion, which determination will be final and binding. Subject to the applicable rules of the Commission, Purchaser expressly reserves the right to delay acceptance for payment of or payment for Shares in order to comply, in whole or in part, with any applicable law or government regulation. Any such delays will be effected in compliance with Rule 14e-1(c) under the Exchange Act (relating to a bidder's obligation to pay for or return tendered securities promptly after the termination or withdrawal of such bidder's offer). See Section 15 below. In all cases, payment for Shares purchased pursuant to the Offer will be made only after timely receipt by the Depositary of (i) certificates evidencing (or a timely Book-Entry Confirmation (as defined in Section 3 below) with respect to) such Shares, (ii) a Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message (as defined below), and (iii) any other documents required by the Letter of Transmittal. See Section 3 below. The term 'Agent's Message' means a message, transmitted by a Book-Entry Transfer Facility (as defined in Section 3 below) to, and received by, the Depositary and forming part of a Book-Entry Confirmation, which states that (i) such Book-Entry Transfer Facility has received an express acknowledgment from the participant in such Book-Entry Transfer Facility tendering Shares that are the subject of such Book-Entry Confirmation, (ii) such participant has received and agrees to be bound by the terms of the Letter of Transmittal, and (iii) Purchaser may enforce such agreement against such participant. For purposes of the Offer, Purchaser will be deemed to have accepted for payment (and thereby purchased) Shares properly tendered to Purchaser and not withdrawn, if and when Purchaser gives oral or written notice to the Depositary of Purchaser's acceptance of such Shares. In all cases, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary, which will act as agent for tendering Stockholders for the purpose of receiving payment from Purchaser and transmitting payment to tendering Stockholders. If, for any reason, 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 (but subject to Rule 14e-1(c) under the Exchange Act), the Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares may not be withdrawn, except to the extent that the tendering Stockholders are entitled to exercise, and do exercise, withdrawal rights as described in Section 4 below. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE OFFER PRICE BY PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. If any tendered Shares are not purchased pursuant to the Offer for any reason or if certificates are submitted for more Shares than are tendered, certificates for Shares not purchased or tendered will be returned pursuant to the instructions of the tendering Stockholder without expense to the tendering Stockholder (or, in the case of Shares delivered by book-entry transfer into the Depositary's account at a Book-Entry Transfer Facility pursuant 4 to the procedures set forth in Section 3 below, the Shares will be credited to an account maintained at the appropriate Book-Entry Transfer Facility) as promptly as practicable following the expiration or termination of the Offer. If, prior to the Expiration Date, Purchaser increases the consideration to be paid per Share pursuant to the Offer, Purchaser will pay the increased consideration for all Shares purchased pursuant to the Offer, whether or not the Shares were tendered prior to the increase in consideration. Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to Parent or 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 and will in no way prejudice the rights of tendering Stockholders to receive payment for Shares validly tendered and accepted for payment pursuant to the Offer. 3. PROCEDURE FOR TENDERING SHARES Valid Tenders. For a Stockholder to tender validly pursuant to the Offer, either (i) a Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message, and any other required documents, must be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Date and either (a) certificates evidencing Shares must be received by the Depositary at any such address prior to the Expiration Date or (b) the Shares must be delivered pursuant to the procedures for book-entry transfer set forth below and a Book-Entry Confirmation (as defined below) must be received by the Depositary prior to the Expiration Date; or (ii) the tendering Stockholder must comply with the guaranteed delivery procedures set forth below. No alternative, conditional or contingent tenders will be accepted. Book-Entry Transfer. The Depositary will establish accounts with respect to the Shares at The Depository Trust Company, Midwest Securities Trust Company and Philadelphia Depository Trust Company (each, a 'Book-Entry Transfer Facility' and, collectively, the 'Book-Entry Transfer Facilities') for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in any of the Book-Entry Transfer Facilities' systems may make book-entry delivery of Shares by causing a Book-Entry Transfer Facility to transfer the Shares into the Depositary's account at the Book-Entry Transfer Facility in accordance with that Book-Entry Transfer Facility's procedures for such transfer. However, although delivery of the Shares may be effected through book-entry transfer into the Depositary's account at a Book-Entry Transfer Facility, the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any required signature guarantees, or an Agent's 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 prior to the Expiration Date, or the tendering Stockholder must comply with the guaranteed delivery procedures described below. The confirmation of a book-entry transfer of Shares into the Depositary's account at a Book-Entry Transfer Facility as described above is referred to as a 'Book-Entry Confirmation.' DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. THE METHOD OF DELIVERY OF CERTIFICATES FOR SHARES, THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS MADE BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. Signature Guarantees. No signature guarantee is required on the Letter of Transmittal (i) if the Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Section, includes any participant in any of the Book-Entry Transfer Facilities' systems whose name appears on a security position listing as the owner of the Shares) of Shares tendered therewith and such registered holder has not completed either the box entitled 'Special Delivery Instructions' or the box entitled 'Special Payment Instructions' on the Letter of Transmittal; or (ii) if such Shares are tendered for the account of a financial institution (including most 5 commercial banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (an 'Eligible Institution'). In all other cases, all signatures on the Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If the certificates evidencing 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, then the tendered certificates evidencing Shares must be endorsed or accompanied by appropriate stock powers, in each case signed exactly as the name (or names) of the registered holder or owners appears on the certificates, with the signatures on the certificates or stock powers guaranteed as described above and as provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of Transmittal. Guaranteed Delivery. If a Stockholder wishes to tender Shares pursuant to the Offer and the Stockholder's certificates are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary prior to the Expiration Date, such Stockholder's tender may be effected if all of the following conditions are met: (i) the tender is made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by Purchaser, is received by the Depositary (as provided below) prior to the Expiration Date; and (iii) the certificates for all tendered Shares in proper form for transfer (or a Book-Entry Confirmation with respect to all such tendered Shares), together with a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof) with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message, and any other documents, are received by the Depositary within three trading days after the date of execution of the Notice of Guaranteed Delivery. A 'trading day' is any day on which the New York Stock Exchange, Inc. (the 'NYSE') is open for business. The Notice of Guaranteed Delivery may be delivered by hand or transmitted by telegram, facsimile transmission or mailed to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in the Notice of Guaranteed Delivery. IN ALL CASES, SHARES SHALL NOT BE DEEMED VALIDLY TENDERED UNLESS A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE THEREOF) IS RECEIVED BY THE DEPOSITARY. Notwithstanding any other provision of this Offer to Purchase, payment for Shares accepted for payment pursuant to the Offer will in all cases be made only after timely receipt by the Depositary of certificates for (or a timely Book-Entry Confirmation with respect to) such Shares, a Letter of Transmittal (or a manually signed facsimile), properly completed and duly executed, with any required signature guarantees and any other documents required by the Letter of Transmittal (or in the case of a book-entry transfer, an Agent's Message). Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Shares pursuant to any of the procedures described above will be determined by Purchaser in its sole discretion, which determination shall be final and binding on all parties. Purchaser reserves the absolute right to reject any or all tenders of Shares determined not to be in proper form or the acceptance of or payment for which may, in the opinion of Purchaser's counsel, be unlawful. Purchaser also reserves the absolute right to waive any defect or irregularity in any tender of any Shares of any particular Stockholder whether or not similar defects or irregularities are waived in the case of other Stockholders. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructions) 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. None of Parent, Purchaser, the Dealer Manager, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. 6 Backup Federal Income Tax Withholding. To prevent backup federal income tax withholding of 31% of the payments made to Stockholders with respect to the purchase price of Shares purchased pursuant to the Offer or the Merger, a Stockholder must provide the Depositary with his or her correct taxpayer identification number ('TIN') and certify that he or she is not subject to backup federal income tax withholding by completing the substitute Form W-9 included in the Letter of Transmittal. See Instruction 10 of the Letter of Transmittal; see Section 5 below. A tender of Shares pursuant to any of the procedures described above will constitute the tendering Stockholder's acceptance of the terms and conditions of the Offer, as well as the tendering Stockholder's representation and warranty to Purchaser that (i) the Stockholder has a net long position in the Shares being tendered, within the meaning of Rule 14e-4 under the Exchange Act, and (ii) the tender of the Shares complies with Rule 14e-4. It is a violation of Rule 14e-4 for a person, directly or indirectly, to tender Shares for his or her own account, unless, at the time of tender, the person so tendering (i) has a net long position equal to or greater than the amount of (a) Shares tendered or (b) other securities immediately convertible into or exchangeable or exercisable for the Shares tendered and that person will acquire the Shares for tender by conversion, exchange or exercise and (ii) will cause Shares to be delivered in accordance with the terms of the Offer. Rule 14e-4 provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. Purchaser's acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering Stockholder and Purchaser upon the terms and conditions of the Offer. Appointment as Proxy. By executing a Letter of Transmittal, a tendering Stockholder irrevocably appoints designees of Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of the Stockholder's rights with respect to the Shares tendered by the Stockholder and purchased by Purchaser and with respect to any and all other Shares or other securities issued or issuable in respect of those Shares, on or after the date of the Offer. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Shares. Such appointment will be effective when, and only to the extent that, Purchaser accepts the Shares for payment. Upon acceptance for payment, all prior powers of attorney and proxies given by the Stockholder with respect to the Shares (and any other Shares or other securities so issued in respect of such purchased Shares) will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the Stockholder. The designees of Purchaser will be empowered to exercise all voting and other rights of the Stockholder with respect to such Shares (and any other Shares or securities so issued in respect of such purchased Shares) as they in their sole discretion may deem proper, including, without limitation, in respect of any annual or special meeting of the Stockholders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise (including any such meeting or action by written consent to approve the Merger). Purchaser reserves the absolute right to require that, in order for Shares to be validly tendered, immediately upon Purchaser's acceptance for payment of the Shares, Purchaser must be able to exercise full voting and other rights with respect to the Shares, including voting at any meeting of Stockholders then scheduled. 4. WITHDRAWAL RIGHTS Tenders of Shares made pursuant to the Offer are irrevocable, except as otherwise provided in this Section 4. Shares tendered pursuant to the Offer may be withdrawn pursuant to the procedures set forth below at any time prior to the Expiration Date and, unless theretofore accepted for payment and paid for by Purchaser pursuant to the Offer, may also be withdrawn at any time after Monday, July 22, 1996. If Purchaser extends the Offer, is delayed in its purchase of or payment for Shares or is unable to purchase or pay for Shares for any reason, then, without prejudice to the rights of Purchaser, tendered Shares may be retained by the Depositary on behalf of Purchaser and may not be withdrawn, except to the extent that tendering Stockholders are entitled to withdrawal rights as set forth in this Section 4. The reservation by Purchaser of the right to delay the acceptance or purchase of or payment for Shares is subject to the provisions of Rule 14e-1(c) under the Exchange Act, which requires Purchaser to pay the consideration offered or return Shares deposited by or on behalf of Stockholders promptly after the termination or withdrawal of the Offer. For a withdrawal to be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase. 7 Any such notice of withdrawal must specify the name of the persons who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder, if different from that of the person who tendered the Shares. If certificates evidencing Shares have been delivered or otherwise identified to the Depositary, then, prior to the physical release of the certificates, the tendering Stockholder must also submit to the Depositary the serial numbers shown on the particular certificates that evidence the Shares to be withdrawn, and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution (except in the case of Shares tendered for the account of an Eligible Institution). If Shares have been tendered pursuant to the procedure for book-entry transfer set forth in Section 3 above, the notice of withdrawal must also specify the name and number of the account at the applicable Book-Entry Transfer Facility to be credited with the withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's procedures. All questions as to the form and validity (including time of receipt) of notices of withdrawal will be determined by Purchaser, in its sole discretion, whose determination will be final and binding on all parties. No withdrawal of Shares will be deemed to have been properly made until all defects and irregularities have been cured or waived. None of Parent, Purchaser, the Dealer Manager, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failing to give such notification. Any Shares properly withdrawn will be deemed not validly tendered for purposes of the Offer, but may be tendered at any subsequent time prior to the Expiration Date by following any of the procedures described in Section 3 above. 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER The following is a summary of the principal federal income tax consequences of the Offer and the Merger to Stockholders whose Shares are purchased pursuant to the Offer or whose Shares are converted into the right to receive the Merger Consideration in the Merger (including any cash amounts received by dissenting Stockholders pursuant to the exercise of appraisal rights). This discussion is based upon the provisions of the Internal Revenue Code of 1986, as amended (the 'Code'), the applicable Treasury Regulations promulgated and proposed thereunder, judicial authority and administrative rulings and practice. Legislative, judicial or administrative changes or interpretations are subject to change, possibly on a retroactive basis, at any time and therefore could alter or modify the statements and conclusions set forth below. This discussion assumes that the Stockholders hold the Shares as 'capital assets' within the meaning of Section 1221 of the Code (i.e., property held for investment). This discussion does not address all aspects of federal income taxation that may be relevant to a particular Stockholder in light of such Stockholder's personal investment circumstances, or those Stockholders subject to special treatment under the federal income tax laws (for example, life insurance companies, tax-exempt organizations, foreign corporations and nonresident alien individuals) or to Stockholders who acquired their Shares through the exercise of employee stock options or other compensation arrangements. In addition, the discussion does not address any aspect of foreign, state, local or estate and gift taxation that may be applicable to a Stockholder. Consequences of the Offer and the Merger to Stockholders. The receipt of the Offer Price and the Merger Consideration (including any cash amounts received by dissenting Stockholders pursuant to the exercise of appraisal rights) will be a taxable transaction for federal income tax purposes (and also may be a taxable transaction under applicable state, local and other income tax laws). In general, for federal income tax purposes, a Stockholder will recognize gain or loss equal to the difference between his or her adjusted tax basis in the Shares sold pursuant to the Offer or converted to cash in the Merger and the amount of cash received therefor. Gain or loss must be determined separately for each block of Shares (i.e., Shares acquired at the same cost in a single transaction) sold pursuant to the Offer or converted to cash in the Merger. Such gain or loss will be capital gain or loss and will be long-term gain or loss if, on the date of sale (or, if applicable, the date of the Merger), the Shares were held for more than one year. Backup Tax Withholding. Under the Code, a Stockholder may be subject, under certain circumstances, to 'backup withholding' at a 31% rate with respect to payments made in connection with the Offer or the Merger. Backup withholding generally applies if the Stockholder (i) fails to furnish his or her Social Security Number or employer identification number ('TIN'), (ii) furnishes an incorrect TIN, (iii) fails properly to report interest or dividends or (iv) under certain circumstances, fails to provide a certified statement, signed under penalties of 8 perjury, that the TIN provided is his or her correct number and that he or she is not subject to backup withholding. Backup withholding is not an additional tax but merely an advance payment, which may be refunded to the extent it results in an overpayment of tax. Certain persons generally are exempt from backup withholding, including corporations and financial institutions. Certain penalties apply for failure to furnish correct information and for failure to include the reportable payments in income. Each Stockholder should consult with his or her own tax advisor as to his or her qualifications for exemption from withholding and the procedure for obtaining such exemption. THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION PURPOSES ONLY. STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE OFFER AND THE MERGER TO THEM IN VIEW OF THEIR OWN PARTICULAR CIRCUMSTANCES. 6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES According to the Company 10-K, the principal trading market for the Shares is the NYSE, where the trading symbol is 'ADA'. Prior to October 3, 1994, the Company's common stock traded in the Nasdaq National Market ('NNM') under the symbol 'SASZ'. The following table sets forth, for the periods indicated, the high and low sales prices per Share, as reported by the NNM (prior to October 3, 1994) and the NYSE Composite Tape (since October 3, 1994): High and low sale prices per Share as reported by the NNM for the periods indicated:
HIGH LOW ------ ------ 1994: First Quarter.......................................... $23.25 $11.00 Second Quarter......................................... 17.25 11.00 Third Quarter (through September 30, 1994)............. 17.25 11.50
High and low sale prices per Share as reported by the NYSE Composite Tape:
HIGH LOW ------ ------ 1994: Fourth Quarter (October 3, 1994 through December 31, 1994)............................................... $15.50 $ 9.50 1995: First Quarter.......................................... 10.75 7.00 Second Quarter......................................... 9.50 6.875 Third Quarter.......................................... 14.00 9.125 Fourth Quarter......................................... 11.75 9.00 1996: First Quarter.......................................... 11.75 8.375 Second Quarter (through May 23, 1996).................. 15.375 9.125
On May 17, 1996, the last full trading day before the public announcement by Parent and the Company of the execution of the Merger Agreement and Purchaser's intention to commence the Offer, the last reported sale price on the NYSE was $15.375 per Share. On May 23, 1996, the last full trading day before the commencement of the Offer, the last reported sale price on the NYSE was $15.875 per Share. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES. According to published financial sources, the Company has not paid any dividends on the Shares for the periods presented above. 7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES, STOCK EXCHANGE LISTING AND EXCHANGE ACT REGISTRATION AND MARGIN SECURITIES The purchase of Shares pursuant to the Offer will reduce the number of Shares that might otherwise trade publicly and may reduce the number of holders of Shares, which could adversely affect the liquidity and market value of the remaining Shares held by Stockholders other than Purchaser. Purchaser cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect 9 on the market price for, or marketability of, the Shares or whether such reduction would cause future market prices to be greater or less than the Offer Price. Depending upon the number of Shares purchased pursuant to the Offer, the Shares may no longer meet the requirements of the NYSE for continued listing and may, therefore, be delisted from such exchange. According to the NYSE's published guidelines, the NYSE would consider delisting the Shares if, among other things, the number of publicly held Shares (excluding Shares held by officers, directors, their immediate families and other concentrated holdings of 10% or more) were less than 600,000, there were less than 1,200 holders of at least 100 Shares or the aggregate market value of the publicly held Shares were less than $5 million. The Company has represented that, as of May 20, 1996, there were 22,281,302 Shares outstanding and 23,074 Shares held in the Company's treasury. If, as a result of the purchase of Shares pursuant to the Offer, the Shares no longer meet the requirements of the NYSE for continued listing and the listing of Shares is discontinued, the market for the Shares could be adversely affected. If the NYSE were to delist the Shares (which Purchaser intends to cause the Company to seek if it acquires control of the Company and the Shares no longer meet the NYSE listing requirements), it is possible that the Shares would trade on another securities exchange or in the over-the-counter market and that price quotations for the Shares would be reported by such exchange or through the National Association of Securities Dealers Automated Quotation System ('NASDAQ') or other sources. The extent of the public market for the Shares and availability of such quotations would, however, depend upon such factors as the number of holders and/or the aggregate market value of the publicly held Shares at such time, the interest in maintaining a market in the Shares on the part of securities firms, the possible termination of registration of the Shares under the Exchange Act and other factors. The Shares are currently registered under the Exchange Act. Such registration may be terminated upon application of the Company to the Commission if the Shares are 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 holders of Shares and to the Commission 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 of furnishing a proxy statement pursuant to Section 14(a) in connection with a shareholders' meeting and the related requirement of 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 Company. Furthermore, 'affiliates' of the Company and persons holding 'restricted securities' of the Company may be deprived of the ability to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended (the 'Securities Act'). If registration of the Shares under the Exchange Act were terminated, the Shares would no longer be 'margin securities' or eligible for listing or NASDAQ reporting. Purchaser intends to seek to cause the Company to terminate registration of the Shares under the Exchange Act as soon after consummation of the Offer as the requirements for termination of registration of the Shares are met. 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. Depending upon factors similar to those described above regarding listing and market quotations, the Shares might no longer constitute 'margin securities' for the purposes of the Federal Reserve Board's margin regulations and, therefore, could no longer be used as collateral for loans made by brokers. 8. CERTAIN INFORMATION CONCERNING THE COMPANY The Company is a Delaware corporation with its principal executive offices located at 700 Canal Street, Stamford, Connecticut 06902. According to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995 (the 'Company 10-K'), the Company is an international provider of computing and networking products and services to commercial, governmental and educational users. The Company provides additional services, including network design and support, maintenance, facilities management and outsourcing through its sales offices nationwide. Through its subsidiaries, the Company also provides advance systems consulting, application-specific systems development services and personal computer equipment and networks. 10 Set forth below is certain selected consolidated financial data, with respect to the Company and its subsidiaries excerpted from the Company 10-K and the Company 10-Q. More comprehensive financial information is included in such reports and other documents filed by the Company with the Commission, and the following summary is qualified in its entirety by reference to such reports and other documents and all the financial information (including any related notes) contained therein. Such reports and other documents are available for inspection and copies are obtainable in the manner set forth below under 'Available Information.' SELECTED CONSOLIDATED FINANCIAL DATA (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
THREE MONTHS YEAR ENDED DECEMBER 31, ENDED MARCH ------------------------------------ INCOME STATEMENT DATA 31, 1996 1995 1994 1993 - --------------------------- ------------ ---------- ---------- -------- (UNAUDITED) Total net revenues......... $ 452,799 $1,515,557 $1,018,545 $219,663 Total cost of revenues..... 390,055 1,311,445 895,094 187,959 Selling, general and administrative expenses................. 47,857 145,618 86,211 22,492 Operating income (loss).... 13,571 53,352 34,638 8,473 Interest income (expense)................ (8,007) (24,951) (11,611) (1,648) Net income (loss).......... $ 3,451 $ 17,268 $ 13,931 $ 4,257 Net income (loss) per common share: Primary............... $ .15 $ .79 $ .78 $ .36 Fully diluted......... $ .15 $ .77 $ .78 $ .35
AT DECEMBER 31, AT MARCH 31, -------------------------------- BALANCE SHEET DATA 1996 1995 1994 1993 - --------------------------- ------------ -------- -------- -------- (UNAUDITED) Total assets............... $ 713,327 $710,384 $438,085 $153,382 Total current liabilities.............. 495,411 502,026 278,583 87,111 Long-term debt............. 12,206 11,605 36,221 1,119 Company-obligated, mandatorily redeemable preferred securities of AmeriData Delaware, L.L.C.................... 30,880 30,880 Stockholders' equity....... 164,983 156,951 121,494 65,002
General Electric Pension Trust (the 'Pension Trust') is a master trust which is tax exempt pursuant to Section 501(a) of the Code, and is the funding vehicle for certain of the qualified defined benefit pension plans of GE and those trades or businesses which are under common control as set forth in Sections 414(b) and (c) of the Code and Section 4001(b)(1) of the Employee Retirement Income Security Act of 1974, as amended ('ERISA'), including Parent. As indicated in the Company's proxy statement dated April 4, 1996, as of December 31, 1995, the Pension Trust owned 2,101,404 Shares (or approximately 9.7% of the outstanding Shares as of such date). Certain Company Projections. During the course of discussions between Parent and the Company that led to the execution of the Merger Agreement (see Section 11 below), in a telephone call, the Company discussed with Lazard Freres certain limited non-public business and financial information about the Company. Subsequently, the Company provided Parent with more detailed written, non-public business and financial information. The written information provided to Parent included (i) a preliminary plan projecting profit for 1996 of approximately $30 million based on projected total revenue of approximately $2.1 billion, (ii) balance sheet information that projected for 1996 (A) total assets of between approximately $650 million and $763 million for each quarter of 1996, (B) total liabilities of between approximately $461 million and $547 million for each 11 quarter of 1996, and (C) total stockholders' equity of between approximately $189 million and $216 million, and (iii) cash flow information projecting cash from operations of approximately $36 million for 1996. The Company does not as a matter of course make public any projections as to future performance or earnings, and the projections set forth above are included in this Offer to Purchase only because the information was provided to Purchaser and Parent. The projections were not prepared with a view to public disclosure or for compliance with the published guidelines of the Commission or the guidelines established by the American Institute of Certified Public Accountants regarding projections or forecasts. The Company has advised Purchaser and Parent that its internal financial forecasts (upon which the projections provided to Parent were based in part) are, in general, prepared solely for internal use and capital budgeting and other management decisions, and are subjective in many respects and thus susceptible to interpretation and periodic revision based on actual experience and business developments. None of the Company, Purchaser or Parent or their respective financial advisors or any of their respective directors or officers assumes any responsibility for the accuracy of any of the projections. Because the estimates and assumptions underlying the projections are inherently subject to significant economic and competitive uncertainties and contingencies that are difficult or impossible to predict accurately and are beyond the Company's, Purchaser's and Parent's control, there can be no assurance that the projections will be realized. Accordingly, it is expected that there will be differences between actual and projected results, and actual results may be materially higher or lower than those projected. Available Information. The Company is subject to the informational filing requirements of the Exchange Act. In accordance with the Exchange Act, the Company files periodic reports, proxy statements and other information with the Commission that relates 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 those persons in transactions with the Company. Such reports, proxy statements and other information may be inspected at the Commission's office at 450 Fifth Street, N.W., Washington, D.C. 20549, and also are available for inspection and copying at the regional offices of the Commission located at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies may be obtained upon payment of the Commission's prescribed fees by writing to its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material can also be obtained at the offices of the NYSE, 20 Broad Street, New York, New York 10005. Except as otherwise stated 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 on file with the Commission and other publicly available information. Although Purchaser and Parent do not have any knowledge that any such information is untrue, neither Purchaser nor Parent takes any responsibility for the accuracy or completeness of such information or for any failure by the Company to disclose events that may have occurred and may affect the significance or accuracy of any such information. 9. CERTAIN INFORMATION CONCERNING PURCHASER, PARENT, GE CAPITAL SERVICES AND GE Purchaser, a Delaware corporation, was organized to acquire all of the outstanding Shares pursuant to the Offer and has not conducted any unrelated activities since its organization. GAC Acquisition II Corp., a Delaware corporation ('GAC II'), was organized for the purpose of effecting the Second-Step Merger; and has not conducted any unrelated activities since its organization. All of the outstanding capital stock of Purchaser is owned directly by GAC II. GAC II is a direct wholly-owned subsidiary of Parent. The principal executive offices of Purchaser and GAC II are located at 6875 Jimmy Carter Boulevard, Suite 3200, Norcross, Georgia 30071. Parent is a New York corporation and a direct, wholly-owned subsidiary of General Electric Capital Services, Inc. ('GE Capital Services') which, in turn, is a wholly-owned subsidiary of GE. Parent, together with its subsidiaries, engages in financing services that include lending, equipment management services and annuities. The principal executive offices of Parent are located at 260 Long Ridge Road, Stamford, Connecticut 06927. GE Capital Services is a Delaware corporation and a direct, wholly-owned subsidiary of GE. The business of GE Capital Services consists of the ownership of two principal subsidiaries which, together with their 12 affiliates, constitute GE's principal financial services businesses. The principal executive offices of GE Capital Services are located at 260 Long Ridge Road, Stamford, Connecticut 06927. GE, a New York corporation, engages in providing a wide variety of industrial, commercial and consumer products and services. The National Broadcasting Company, Inc. ('NBC'), a wholly-owned subsidiary of GE, is engaged principally in furnishing network television services, in operating television stations and in providing cable programming and distribution services. The principal executive offices of GE are located at 3135 Easton Turnpike, Fairfield, Connecticut 06431. Except as described in this Offer to Purchase, during the last five years, none of Purchaser, Parent, GE, GE Capital Services and GAC II or, to the best knowledge of Purchaser and Parent, any of the persons listed in Schedule I hereto (i) has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws. The name, business address, present principal occupation or employment, five-year employment history and citizenship of each director and executive officer of Purchaser, Parent, GE, GE Capital Services and GAC II are set forth in Schedule I. Set forth below is certain selected consolidated financial information with respect to Parent and its subsidiaries excerpted from Parent's Annual Report on Form 10-K for the fiscal year ended December 31, 1995 and Parent's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1996, in each case filed with the Commission by Parent. More comprehensive financial information is included in such reports and other documents filed with the Commission by Parent, and the following summary is qualified in its entirety by reference to such reports and other documents and all financial information (including any related notes) contained therein. Such reports and other documents should be available for inspection and copies should be obtainable in the manner set forth with respect to information about the Company in Section 8 (except that they will not be available at the regional offices of the Commission). SELECTED CONSOLIDATED FINANCIAL DATA (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
THREE MONTHS YEAR ENDED DECEMBER 31, ENDED -------------------------------- MARCH 31, 1996 1995 1994 1993 -------------- -------- -------- -------- (UNAUDITED) Statement of Current & Retained Earnings: Earned income.......... $ 5,620 $ 21,179 $ 16,923 $ 14,444 Net earnings........... 605 2,261 1,918 1,478 Financing Receivables-- net.................. 92,208 93,272 76,357 63,948
THREE MONTHS YEAR ENDED DECEMBER 31, ENDED -------------------------------- MARCH 31, 1996 1995 1994 1993 -------------- -------- -------- -------- (UNAUDITED) Statement of Financial Position: Total assets............ $ 160,975 $160,825 $130,904 $117,939 Short-term borrowings... 59,891 59,264 54,579 52,903 Long-term senior notes................. 48,508 47,794 33,615 25,112 Long-term subordinated notes................. 697 697 697 697 Minority interest....... 696 703 615 426 Equity.................. 14,249 14,202 10,540 10,370
Except as described in this Offer to Purchase, (i) none of Purchaser, Parent, GAC II, GE or GE Capital Services or, to the best knowledge of Purchaser and Parent, any of the persons listed in Schedule I or any associate or majority-owned subsidiary of any such person, beneficially owns or has a right to acquire any equity security of the Company and (ii) none of Purchaser, Parent, GAC II, GE or GE Capital Services or, to the best knowledge of Parent and Purchaser, any of the other persons referred to above, or any of the respective directors, 13 executive officers or subsidiaries of any of the foregoing, has effected any transaction in any equity security of the Company during the past 60 days. 10. SOURCE AND AMOUNT OF FUNDS The Offer is not conditioned upon any financing arrangements. Purchaser estimates that the total amount of funds required to consummate the Offer and the Merger, to pay related fees and expenses and to pay outstanding indebtedness of the Company that may become due as a result of the Offer and the Merger is approximately $825 million. Purchaser expects to obtain these funds in the form of capital contributions from GAC II. GAC II expects to obtain these funds from capital contributions and/or loans from Parent. Parent expects to fund the capital contributions and/or loans provided to GAC II from existing available working capital and/or from existing commercial paper programs. 11. BACKGROUND Background of the Offer In early 1995, representatives of the Company contacted representatives of Parent with respect to the possible acquisition by the Company of Parent's third party computer maintenance business. The parties subsequently engaged in several additional discussions concerning the possible acquisition, which discussions ceased in early 1995. In early 1996, a representative of Parent was contacted by a third party to inquire whether Parent was interested in discussing a possible business relationship between Parent and the Company. Parent's representative then contacted a representative of the Company and arranged for an informal meeting between representatives of each of the Company and Parent, which meeting was held thereafter. On February 6, 1996, Mr. Gerald Poch and Mr. Leonard Fassler, two of the three Co-Chairmen of the Company, had dinner with Mr. Michael Ford, President and Chief Executive Officer of Parent's Technology Management Services business (the 'Technology Management Business'), and Mr. Michael Upton, Senior Vice President of the Technology Management Business, to explore whether the parties had an interest in entering into discussions relating to a possible business relationship or business combination between Parent and the Company. The parties determined to continue discussions and on February 15, 1996, the Company and Parent entered into a Confidentiality Agreement. On February 21, 1996, Mr. Poch met again with Mr. Upton. At that meeting, Mr. Poch and Mr. Upton discussed a possible sale of the Company to Parent and Mr. Poch described the Company's structure and capabilities. On March 6, 1996, representatives of the Company including Messrs. Poch and Fassler and the Company's chief accounting officer met with representatives of Parent, including Mr. Upton, to further discuss the possibility of a sale of the Company. On March 7, 1996, Mr. Poch met with representatives of Parent and Lazard Freres, Parent's financial advisor, and made a formal presentation relating to the Company's business, financial condition and results of operations, as well as the Company's new computer system. During mid to late March of 1996, representatives of the Company and Parent continued to hold discussions regarding a possible sale of the Company to Parent. In these discussions, the Company's representatives indicated that the Company's board of directors was likely to require a price somewhat in excess of $15 per Share. Parent's representatives, however, did not engage in negotiations relating to price at that time. On April 1, 1996, a representative of the Company met with a representative of Parent and a representative of Lazard Freres. At this meeting, the Company's representative indicated that he believed, based on his informal discussions with the Company's board of directors, that a price somewhat in excess of $15 per Share would be required in order for the Company's board of directors to approve a transaction. During March, April and early May of 1996, representatives of Parent, Lazard Freres, Weil, Gotshal & Manges LLP ('Weil Gotshal'), counsel to Parent, and a consultant to Parent requested and received non-public information with respect to the Company. In connection with Parent's due diligence of the Company during this 14 period, representatives of Parent, Lazard Freres, Weil Gotshal and representatives of Parent's consultant and representatives of the Company and Dewey Ballantine ('Dewey Ballantine'), legal counsel to the Company, contacted each other from time to time to discuss issues relating to due diligence. In early May of 1996, Parent's legal counsel furnished the Company and the Company's legal counsel with a draft merger agreement. During the first three weeks of May of 1996, representatives of Parent, Lazard Freres and Weil Gotshal negotiated the terms of a merger agreement with representatives of the Company and Dewey Ballantine. During these negotiations, representatives of Parent indicated to representatives of the Company and the Company's legal counsel that it was a condition to Parent's willingness to enter into a merger agreement that certain Stockholders enter into a stockholders agreement pursuant to which such Stockholders would agree, among other things, to tender their Shares in the Offer. Also during the first three weeks of May of 1996, amendments to the employment agreements of each of the three Co-Chairmen were negotiated with the Company and Parent (the 'Amendment Agreements'). From Thursday, May 16 through the morning of Monday, May 20, 1996, representatives of the Company and its legal counsel continued to meet with representatives of Parent, Lazard Freres and Parent's legal counsel to negotiate the terms of the merger agreement. During this same period, representatives of Parent and its legal counsel negotiated the terms of the Stockholders Agreement with the Selling Stockholders and representatives of Dewey Ballantine, and the terms of the Amendment Agreements with the Company's three Co-Chairmen and representatives of Dewey Ballantine. On May 17, 1996, Mr. Poch spoke with a representative of Lazard Freres and indicated that the Company's board of directors would not be prepared to accept an offer from Parent for the sale of the Company at a price below $16 per Share. Later that day, a representative of Alex Brown spoke with a representative of Lazard Freres and discussed Alex Brown's valuation analysis of the Company. The negotiations from Thursday, May 16, 1996 through Monday, May 20, 1996 culminated in the Company and Parent agreeing upon the form of definitive Merger Agreement, the Selling Stockholders and Parent agreeing upon the form of definitive Stockholders Agreement and the three Co-Chairmen of the Company, the Company and Parent agreeing upon the form of definitive Amendment Agreements. During the evening of May 19, 1996, Parent's board of directors approved the Merger Agreement and the Stockholders Agreement and the transactions contemplated therein, subject to satisfactory negotiation of the remaining unresolved issues, including price. Later that evening, Parent's representatives informed the Company's representatives that Parent was prepared to pay $16 per Share to acquire the Company. During that same evening, the Company's representatives informed Parent's representatives that the Company's board of directors had approved the Merger Agreement and the transactions contemplated therein and representatives of Dewey Ballantine informed representatives of Parent that the Selling Stockholders had agreed to the terms of the Stockholders Agreement and the transactions contemplated therein and that the Company's three Co-Chairmen had agreed to the terms of the Amendment Agreements. On May 20, 1996, the Merger Agreement, the Stockholders Agreement and the Amendment Agreements were executed and the transaction was publicly announced. Other The Company 10-K indicates that during October 1994, the Company acquired the business of American Computer Rental, Inc. ('ACR'), a provider of short-term computer rental equipment to commercial and governmental users, and that in connection with such acquisition the Company assumed certain obligations of ACR to Parent related to the financing of rental equipment. As indicated in the Company 10-K, at December 31, 1995, such obligations aggregated approximately $4.3 million and bear interest at the prime rate plus 1.5%. 12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; THE MERGER AGREEMENT; THE STOCKHOLDERS AGREEMENT; OTHER AGREEMENTS Purpose of the Offer and the Merger The purpose of the Offer and the Merger is to enable Purchaser to acquire, in one or more transactions, control of the Company and the entire equity interest in the Company. The Offer is intended to increase the likelihood that the Merger will be completed promptly. 15 Parent believes that the Company's business will strengthen Parent's capabilities as a global desktop systems integrater by geographically expanding the markets in which Parent's desktop systems integrater business operates. Plans for the Company It is currently contemplated that following the consummation of the Merger, Parent will cause the Second-Step Merger to be effected. As a result of the Second-Step Merger, certain options to purchase Shares granted by the Company will thereafter represent the right to receive for each Share subject to such option, upon exercise thereof in accordance with their terms, an amount in cash equal to the difference between (i) the Offer Price, and (ii) the exercise price with respect to such option. Parent intends, from time to time after completion of the Offer, to evaluate and review the Company's operations and consider what, if any, changes would be desirable in light of circumstances that then exist. Except as noted in this Offer to Purchase, Purchaser and Parent have no present plans or proposals that would result in an extraordinary corporate transaction, such as a merger, reorganization, liquidation or sale or transfer of a material amount of assets involving the Company or any subsidiary or any other material changes in the Company's capitalization, dividend policy, corporate structure, business or composition of its management or Board. The Merger Agreement The following is a summary of the material terms of the Merger Agreement. This summary is not a complete description of the terms and conditions of the Merger Agreement and is qualified in its entirety by reference to the full text of the Merger Agreement, which is incorporated by reference and a copy of which has been filed with the Commission as an exhibit to the Schedule 14D-1. The Merger Agreement may be examined, and copies obtained, as set forth in Section 8 above. The Offer. The Merger Agreement provides for the commencement of the Offer. Purchaser has expressly reserved the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer, except that without the prior written consent of the Company, Purchaser has agreed that it will not (i) decrease or change the form of the Offer Consideration or decrease the number of Shares sought pursuant to the Offer, (ii) impose additional conditions to the Offer, (iii) extend the Expiration Date of the Offer (except as required by law or the applicable rules and regulations of the Commission and except that Purchaser may extend the Expiration Date of the Offer (x) for up to twenty (20) business days after the initial Expiration Date or (y) for longer periods (not to exceed 120 calendar days from the date of commencement) in the event that any condition to the Offer is not satisfied), or (iv) amend any term of the Offer in any manner adverse to Stockholders; provided, however, that, except as set forth above, Purchaser may waive any condition to the Offer in its sole discretion; and provided further, that the Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the Commission. Assuming the prior satisfaction or waiver of the conditions to the Offer, Purchaser will accept for payment, and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practical after the Expiration Date thereof. Payment for Shares. Prior to the Effective Time, Parent will deposit or shall cause to be deposited with the Paying Agent (as defined in the Merger Agreement) in a separate fund established for the benefit of the holders of Shares, for payment in accordance with the Merger Agreement (the 'Payment Fund'), immediately available funds in amounts necessary to make the payments pursuant to the Merger Agreement to holders of Shares (other than the Company or any wholly-owned subsidiary of the Company or Parent, Purchaser or any other wholly-owned Subsidiary of Parent, or holders of Dissenting Shares (as defined below)). The Paying Agent shall, pursuant to irrevocable instructions, pay the Merger Consideration out of the Payment Fund. Any portion of the Payment Fund which remains undistributed to the holders of Shares for six months after the Effective Time shall be delivered to the Company, upon demand, and any holders of Shares who have not theretofore complied with the Merger Agreement and the Instructions set forth in the Letter of Transmittal mailed to such holder after the Effective Time shall thereafter look only to the Company for payment of the Merger Consideration to which they are entitled; provided that if, but only if, the Company shall have defaulted in its obligation to make such payment within a reasonable period of time after receipt of written request therefor from 16 any such holder, such holder may thereafter look to Parent for payment of the Merger Consideration to which they are entitled. All interest accrued in respect of the Payment Fund shall inure to the benefit of and be paid to Parent. Board Representation. The Merger Agreement provides that promptly upon the purchase pursuant to the Offer by Parent or any of its subsidiaries (including Purchaser) of such number of Shares that represents at least a majority of the Shares outstanding, and from time to time thereafter, Parent will be entitled to designate such number of directors, rounded up to the next whole number, on the Board that equals the product of (x) the number of directors (the 'Parent Designees') on the Board (giving effect to any increase in the number of directors pursuant to the Merger Agreement) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being the 'Board Percentage'), and the Company will, subject to Parent's having theretofore provided the Company with the information with respect to Parent's Designees required pursuant to compliance with Section 14(f) of the Exchange Act, promptly satisfy the Board Percentage by (i) increasing the size of the Board or (ii) securing the resignations of such number of directors as is necessary to enable Parent's Designees to be elected to the Board (and the Company shall use its best efforts to cause the then remaining members of the Board to promptly so elect Parent's Designees). At the request of Parent, the Company will take, at the Company's expense, all lawful action necessary to effect any such election, including, without limitation, mailing to the Stockholders the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, unless such information has previously been provided to the Company's Stockholders in the Schedule 14D-9. Following the election or appointment of Parent's Designees pursuant to the Merger Agreement and prior to the Effective Time, any amendment or termination of the Merger Agreement, extension for the performance or waiver of the obligations or other acts of Parent or Purchaser, or waiver of the Company's rights under the Merger Agreement will require the concurrence of a majority of directors of the Company then in office who are directors on the date of the Merger Agreement and who voted to approve the Merger Agreement; provided that if there are no such directors, such actions may be effected by majority vote of the entire Board. Consideration to be Paid in the Merger. The Merger Agreement provides that, upon the terms and subject to the conditions set forth in the Merger Agreement, and in accordance with the DGCL, Purchaser will be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate existence of Purchaser will cease, and the Company will continue as the Surviving Corporation. At the Effective Time, by virtue of the Merger, each Share issued and outstanding immediately prior to the Effective Time (excluding Shares owned, directly or indirectly, by the Company or any wholly-owned subsidiary of the Company or by Parent, Purchaser or any other wholly-owned subsidiary of Parent and excluding Dissenting Shares (as defined below)) will be converted into the right to receive the Merger Consideration, without any interest thereon, upon surrender and exchange of a certificate which immediately prior to the Effective Time represented such Shares (each, a 'Certificate'). Each share of the capital stock of Purchaser issued and outstanding immediately prior to the Effective Time will be converted into one fully paid and nonassessable share of common stock, par value $.01 per share, of the Surviving Corporation, which will thereupon become an indirect, wholly-owned subsidiary of Parent. Each Share and all other shares of capital stock of the Company that are owned by the Company and all Shares and other shares of capital stock of the Company owned by Parent, Purchaser or any other wholly-owned subsidiary of Parent or the Company will be cancelled and retired and will cease to exist and no consideration will be delivered or deliverable in exchange therefor. The Merger will become effective upon the filing of a Certificate of Merger with the Secretary of State of the State of Delaware or at such time thereafter as is provided in the Certificate of Merger. Options, Warrants and Other Purchase Rights. After the Effective Time, each holder of (i) a then outstanding option (collectively, the 'Employee Options') to purchase Shares under the Company's 1991 Stock Option Plan and the Option Agreements between the Company and certain of its officers, directors, employees and consultants (the 'Stock Option Plans'), (ii) a Warrant (as defined in the Merger Agreement ), and (iii) except as provided in the Merger Agreement, any other option, warrant or other right to acquire (upon purchase, exchange, conversion or otherwise) Shares (collectively, the 'Other Options' and, together with the Employee Options, the 'Options'), shall upon exercise of such Option or Warrant in accordance with its terms, be entitled to receive for each Share subject to such Option or Warrant, in settlement and cancellation thereof, an amount (subject to any applicable withholding tax) in cash equal to the difference between the Offer Price and the per 17 Share exercise price of such Option or Warrant, as the case may be, to the extent such difference is a positive number; provided, however, that with respect to any person subject to Section 16(a) of the Exchange Act, any such amount shall be paid as soon as practicable after the first date payment can be made without liability to such person under Section 16(b) of the Exchange Act. The surrender of an Option or Warrant to the Company in exchange for the Option/Warrant Consideration shall be deemed a release of any and all rights the holder had or may have in respect of such Option or Warrant. At the Effective Time, each holder of a right to purchase Shares under the Company's 1991 Stock Purchase Plan (the 'Stock Purchase Plan') pursuant to any offering under the Stock Purchase Plan (a 'Right'), whether or not then exercisable, shall, in settlement and cancellation thereof, receive for such Right an amount (subject to any applicable withholding tax) in cash (such amount being hereinafter referred to as the 'Rights Consideration') equal to the sum of (i) the product of such holder's Accrued Shares (as defined below) with respect to such offering times the difference between (A) the Offer Price and (B) the lower of (I) 85% of the fair market value of the Shares on the effective date of the related offering under the Stock Purchase Plan (determined in accordance with the Stock Purchase Plan) and (II) 85% of the fair market value of the Shares on the date immediately prior to the public announcement of the Offer (such lower amount with respect to an offering, the 'Applicable Per Share Price'), to the extent such difference is a positive number, plus (ii) an amount equal to the aggregate amount in such holder's payroll deduction account with the Company with respect to such offering at the Effective Time (the 'Related Deduction Account Amount'); provided, however, that with respect to any person subject to Section 16(a) of the Exchange Act, any such amount shall be paid as soon as practicable after the first date payment can be made without liability to such person under Section 16(b) of the Exchange Act. Upon receipt of the related Rights Consideration, the Right shall be canceled and such receipt shall be deemed a release of any and all rights the holder had or may have had in respect of such Right. The 'Accrued Shares' of a holder of a Right with respect to any offering under the Stock Purchase Plan shall mean the amount obtained by dividing (I) the Related Deduction Account Amount with respect to such offering by (II) the Applicable Per Share Price with respect to such offering, rounded up to the next whole share. After the Effective Time, each holder of a Subordinated Debenture shall be entitled to receive, upon conversion thereof in accordance with the terms thereof, in settlement and cancellation thereof, solely an amount (subject to any applicable withholding tax) in cash equal to the amount receivable upon the consummation of the Merger by a holder of that number of Shares into which the Subordinated Debentures of such holder were convertible immediately prior to the Merger. The foregoing will apply whether such conversion of the Subordinated Debenture occurs upon conversion of any of the Preferred Securities in accordance with the terms thereof or otherwise. Prior to the Effective Time, the Company will use its commercially reasonable efforts to obtain all necessary consents or releases from holders of Options, Warrants, Rights, Preferred Securities and Subordinated Debentures (collectively, the 'Equity Purchase Rights') and shall take all such other lawful action as may be necessary to give effect to the transactions described above. Prior to the Effective Time, the Company will (i) terminate the Stock Option Plans and Stock Purchase Plan without liability to the Company or the Surviving Corporation (other than as contemplated by the Merger Agreement) as of the Effective Time and terminate or cancel as of the Effective Time the provisions in any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any subsidiary thereof and (ii) take all action reasonably necessary to ensure that following the Effective Time no holder of any Equity Purchase Right or participant in any other plan, program or arrangement shall have any right thereunder to acquire equity securities of the Company, the Surviving Corporation or any subsidiary thereof. Dissenting Shares. Shares that are outstanding immediately prior to the Effective Time and which are held by Stockholders who shall have not voted in favor of the Merger or consented thereto in writing and who shall have demanded properly in writing appraisal for such shares in accordance with Section 262 of the DGCL (collectively, the 'Dissenting Shares') will not be converted into or represent the right to receive the Merger Consideration. Such Shares instead will, from and after the Effective Time, represent only the right to receive payment of the appraised value of such Shares held by them in accordance with the provisions of such Section 262, except that all Dissenting Shares held by Stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such Shares under such Section 262 shall thereupon be deemed to have been converted into and to have become exchangeable, as of the Effective Time, for the right to 18 receive, without any interest thereon, the Merger Consideration upon surrender, in the manner provided in the Merger Agreement, of the Certificate or Certificates that, immediately prior to the Effective Time, evidenced such Shares. Stockholders' Meeting. The Merger Agreement provides that the Company will, as soon as practicable following the acceptance for payment of and payment for Shares by Purchaser in the Offer, duly call, give notice of, convene and hold a stockholders' meeting (the 'Company Stockholders' Meeting') for the purpose of approving the Merger Agreement and the transactions contemplated thereby. At the Company Stockholders' Meeting, the Board will recommend to its stockholders the adoption and approval of the Merger Agreement and the transactions contemplated thereby. As soon as practicable following the acceptance for payment of and payment for Shares by Purchaser in the Offer, the Company and Parent will prepare and file with the Commission a proxy statement, if necessary. The Company shall use its best efforts to respond to all Commission comments with respect to the proxy statement and to cause the proxy statement and the form of proxy, which will comply as to form with all applicable laws, to be mailed to the Stockholders at the earliest practicable date. Notwithstanding the preceding paragraph, in the event that Purchaser or any other subsidiary of Parent acquires at least 90% of the outstanding Shares in the Offer, the parties to the Merger Agreement have agreed, at the request of Purchaser, to take all necessary and appropriate action to cause the Merger to become effective, as soon as practicable after the expiration of the Offer, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL. Subject to the foregoing sentence, Parent will cause Purchaser to take all actions necessary to approve the Merger Agreement and the transactions contemplated thereby. Representations and Warranties. The Merger Agreement contains various representations and warranties of the parties. These include representations and warranties by the Company to the Parent and Purchaser with respect to (i) organization; standing and power, (ii) capital structure, (iii) authority; no violations; consents and approvals, (iv) Commission documents; financial statements, (v) information supplied, (vi) compliance with applicable laws, (vii) litigation, (viii) taxes, (ix) pension and benefit plans; ERISA, (x) absence of certain changes or events, (xi) no undisclosed material liabilities, (xii) opinion of financial advisor, (xiii) vote required, (xiv) labor matters, (xv) intangible property, (xvi) environmental matters, (xvii) real property; other assets, (xviii) insurance, (xix) material contracts, (xx) related party transactions, (xxi) liens, (xxii) brokerage fees and commissions other fees, (xxiii) no excess parachute payments, (xxiv) state takeover statutes, (xxv) pending and proposed transactions and (xxvi) media interests. Parent and Purchaser also have made certain representations and warranties to the Company with respect to (i) organization; standing and power, (ii) authority; no violations; consents and approvals; (iii) interim operations of Purchaser, (iv) information supplied, (v) brokerage fees and commissions and (vi) financial capability. Conduct of Business Pending the Merger. The Company has agreed that during the period from the date of the Merger Agreement and continuing until the Effective Time (except as Parent otherwise consents to in writing), the Company and its subsidiaries will carry on their businesses in the ordinary course in substantially the same manner as previously conducted, and will use all reasonable efforts to preserve intact its present business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business will not be impaired in any material respect at the Effective Time. Except as provided in the Merger Agreement, the Company has further agreed that neither it, nor any of its subsidiaries will: (i) declare or pay any dividends on or make other distributions in respect of any of its capital stock, except for cash dividends or distributions paid on or with respect to the capital stock of a wholly-owned subsidiary and except for cash distributions payable with respect to the Preferred Securities in accordance with their present terms; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock; (iii) redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, any shares of its capital stock; (iv) grant any options, warrants or rights to purchase Shares; (v) amend or reprice any Option or Warrant or the Stock Option Plans or the Rights or the Stock Purchase Plan; (vi) issue, deliver or sell, or pledge or otherwise encumber, or authorize or propose to issue, deliver or sell, or pledge or otherwise encumber, any shares of its capital stock of any class or series, any Company Voting Debt (as defined in the Merger Agreement) or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, Company Voting Debt or convertible or exchangeable securities, 19 other than the issuance of Shares upon (A) the exercise of Options outstanding on the date of the Merger Agreement in accordance with their present terms, (B) the exercise of the Warrants outstanding on the date of the Merger Agreement in accordance with their present terms, (C) the exercise of Rights pursuant to the Stock Purchase Plan in accordance with their present terms, and (D) the conversion of the Subordinated Debentures by the holders thereof in accordance with their present terms; (vii) amend or propose to amend its Certificate of Incorporation or Bylaws or other comparable constituent documents; (viii) acquire or agree to acquire by merger or consolidation or purchase of a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or any assets that are material, individually or in the aggregate, to the Company and its subsidiaries as a whole; (ix) sell, lease, encumber or otherwise dispose of or agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of any asset (except for dispositions in the ordinary course of business consistent with past practice which are not (other than sales of inventory) material, individually or in the aggregate to the Company and its subsidiaries); (x) authorize, recommend, propose, adopt or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its subsidiaries other than the dissolution of Dormant Subsidiaries (as defined in the Merger Agreement); (xi) take or agree or commit to take any action that is reasonably likely to result in any of the Company's representations or warranties pursuant to the Merger Agreement being untrue in any material respect, or in any of the conditions to the Merger Agreement not being satisfied; (xii) grant any increases in the compensation of any of its directors, officers or key employees other than regularly scheduled increases representing (in the case of all directors and officers, and all key employees whose annual compensation (including salary and bonus) exceeds $100,000) an aggregate increase of not more than 5%; pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing Company Benefit Plans or Company Pension Plans (each as defined in the Merger Agreement) as in effect on the date of the Merger Agreement to any such director, officer or key employee, whether past or present; enter into any new, or materially amend any existing, employment or severance or termination agreement with any such director, officer or key employee other than At-Will Employment Agreements providing for total annual compensation (including salary and bonus) of less than $100,000; terminate or amend the employment agreements of Messrs. Poch and McCleary or the employment or advisory agreements with Mr. Fassler; or, except as may be required to comply with applicable law, become obligated under any new Company Employee Benefit Plan or Company Pension Plan, which was not in existence on the date of the Merger Agreement, or amend any such plan or arrangement in existence on the date of the Merger Agreement if such amendment would have the effect of materially enhancing any benefits thereunder; (xiii) except as permitted by the Merger Agreement, assume or incur any Indebtedness (as defined in the Merger Agreement) for borrowed money (other than pursuant to credit facilities existing on the date of the Merger Agreement in accordance with their present terms) or guarantee any such Indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any of its subsidiaries or guarantee any debt securities of others or enter into any lease (whether such lease is an operating or capital lease) or create any mortgages, liens, security interests or other encumbrances on the assets or property of the Company or any of its subsidiaries in connection with any Indebtedness thereof (other than security interests arising pursuant to mortgages or other security agreements in effect on the date of the Merger Agreement covering credit facilities existing on the date of the Merger Agreement), or enter into any 'keep well' or other agreement or arrangement to maintain the financial condition of another Person (as defined in the Merger Agreement) or make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company and other than loans or advances to customers and employees in the ordinary course of business consistent with past practice; (xiv) enter into, modify, rescind, terminate, waive, release or otherwise amend in any material respect any of the terms or provisions of any contract agreement, commitment, arrangement or right specified on a certain schedule to the Merger Agreement or which, if such contract, agreement, arrangement or right had existed as of the date of the Merger Agreement, would have been required to be so specified; provided, however, that the foregoing does not limit the right of the Company or any of its subsidiaries to enter into certain contracts in the ordinary course of business consistent with past practice and involving annual payments of not more than $5,000,000; (xv) permit a material change in any of its financial reporting, tax, or accounting practices or policies or in any assumption underlying such practices or policies, or in any method of calculating any bad debt, contingency, or other reserve for financial reporting purposes or for other accounting purposes, except as may be required by GAAP; (xvi) except as permitted by the Merger Agreement and except for capital expenditures for MIS and rental inventory purchases, 20 make or authorize any capital expenditures in excess of $100,000 individually and $500,000 in the aggregate per month; (xvii) make any tax election or settle or compromise any material tax liability; or (xviii) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of any of its liabilities or obligations, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party. The Company has further agreed that it and its subsidiaries will: (i) confer with Parent to the extent reasonably requested by Parent, report on operational matters and promptly advise Parent orally and in writing of any change or event having, or which, insofar as reasonably can be foreseen, could have, a Material Adverse Effect (as defined in the Merger Agreement) on the Company, and promptly provide Parent (or its counsel) with copies of all filings made by the Company with the Commission or any other state, federal or foreign Governmental Entity in connection with the Merger Agreement and the transactions contemplated thereby; (ii) prepare and timely file any income tax return of the Company or any subsidiary that has not yet been filed and is required to be filed on or prior to the Effective Time, in a manner consistent with prior years and all applicable laws and regulations (or shall obtain a valid extension of time in which to make such filings); (iii) inform Parent of any notice or other communication from any person alleging that their consent is or may be required in connection with the transactions contemplated by the Merger Agreement; (iv) provide Parent with copies of all filings made by the Company with the Commission or other governmental authority or instrumentality, domestic or foreign (a 'Governmental Entity') in connection with the Merger Agreement; and (v) promptly notify Parent of any actions, suits, claims, investigations or proceedings commenced or, to the best of its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any subsidiary which, if pending on the date of the Merger Agreement, would have been required to have been disclosed pursuant to the Merger Agreement or which relate to the consummation of the transactions contemplated by the Merger Agreement. Other Agreements. The Company, Purchaser and Parent have agreed to take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on such party with respect to the Offer, the Merger (including furnishing all information required under the HSR Act and in connection with approvals of or filings with any other Governmental Entity) and the Stockholders Agreement and to cooperate with and furnish information to each other. Without limiting the generality or effect of the foregoing, the Company will, and will cause its subsidiaries to, take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party, required to be obtained or made by the Company, Parent or any of their subsidiaries in connection with the Offer, the Merger, the Merger Agreement, or the taking of any action contemplated hereby or thereby; provided, however, that Parent need not agree with the Department of Justice or any other Governmental Entity to hold separate, sell or otherwise dispose of any subsidiary of Parent or the Company or assets or properties of any of the foregoing, or to agree to any conditions deemed by Parent to be adverse to it or the Company (or any of their respective subsidiaries). No Solicitation. The Merger Agreement provides that from and after the date of the Merger Agreement until the termination of the Merger Agreement, the Company will not, and will not permit any of its subsidiaries, or any of its or their officers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its subsidiaries) to, directly or indirectly, initiate, solicit or encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain or with respect to an Acquisition Proposal or agree to or endorse any Acquisition Proposal, provided, however, that prior to the Company Stockholders Meeting, if in the good faith opinion of the Board, based on the advice of outside legal counsel, the failure to proceed in accordance with clause (A) and/or (B) below of this paragraph would violate its fiduciary duties to the Stockholders under applicable law, the Company may, subject to compliance with certain notice requirements to Parent concerning any inquiry with respect to or which could lead to any Acquisition Proposal as specified in the Merger Agreement, in response to an unsolicited written bona fide Acquisition Proposal that in the good faith opinion of the Board, based on the advice of an independent nationally recognized financial advisor and outside legal counsel, would reasonably be 21 expected to result in a Superior Proposal (as defined below), (A) furnish information with respect to the Company to such person making such proposal pursuant to a customary confidentiality agreement with such person and (B) participate in negotiations regarding such Acquisition Proposal; provided that, in the case of clauses (A) and (B) above, the Company has provided a written notice to Parent of its intention to proceed under such clause (A) or (B) above. The Merger Agreement further provides that without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any director or executive officer of the Company or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of the Company or any of its subsidiaries, acting on behalf or under authority of the Company or any subsidiary of the Company, would be deemed to be a breach of this paragraph by the Company. For purposes of the Merger Agreement, 'Acquisition Proposal' means an inquiry, offer or proposal regarding any of the following (other than the transactions between the Company, Parent and Purchaser contemplated under the Merger Agreement) involving the Company or any of its subsidiaries: (w) any merger, consolidation, share exchange, recapitalization, business combination, or other similar transaction; (x) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets of the Company and its subsidiaries, taken as a whole, in a single transaction or series of transactions; (y) any tender offer or exchange offer for or other purchase of 20% or more of the outstanding shares of capital stock of the Company or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. The Company has also agreed that, except as set forth in the Merger Agreement, the Board and any committee thereof will not (A) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by such Board or any such committee of the Merger or the Merger Agreement, (B) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (C) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the preceding sentence, in the event that prior to the Company Stockholders' Meeting the Board determines in good faith, based on the advice of outside counsel, that the failure to proceed in accordance with clause (x), (y) and/or (z) below of this paragraph would violate its fiduciary duties to the Company's stockholders under applicable law, the Board may (subject to the terms of this sentence and the following sentence) (x) withdraw or modify its recommendation of the Merger or the Merger Agreement, (y) approve or recommend a Superior Proposal, and (z) cause the Company to enter into an agreement with respect to a Superior Proposal, in each case at any time following Parent's receipt of a written notice advising Parent that the Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal; provided that the Company will not take any of the actions specified in such clauses (x), (y) or (z) unless the Company has furnished Parent with written notice (defined in the Merger Agreement) specifying such actions to be taken no later than 12:00 noon New York City time four business days prior to the date such actions are proposed to be taken and will not take any of the actions set forth in clauses (y) or (z) above if, after taking into account modifications to the Merger Agreement proposed by Parent, such Acquisition Proposal would not be a Superior Proposal. In addition, if the Board or the Company proposes to take any of the actions permitted by the preceding sentence with respect to any Acquisition Proposal, then the Company will, prior to taking such action, pay, or cause to be paid, to Parent the Termination Payment (as defined below), and, in the case of clauses (y) and (z), cause the person making the Superior Proposal to acknowledge such obligations. Under the Merger Agreement, the term 'Superior Proposal' means any bona fide Acquisition Proposal that has the following characteristics: (x) it is a proposal to acquire, directly or indirectly, for consideration consisting of cash and/or readily marketable securities, (A) Shares representing 100% of the voting power of (I) the outstanding Shares, (II) the Shares issuable upon (aa) the conversion of the Subordinated Debentures, (bb) the exercise of the options outstanding and (cc) the exercise of the warrants outstanding, or (B) all or substantially all the assets of the Company, (y) the terms of such proposal in the good faith judgment of the Board (based on the written opinion of an independent financial advisor of nationally recognized reputation) provide a per share consideration to the Stockholders which is higher than the per share consideration provided by the Merger (after taking into account any modifications to the Merger Agreement proposed by Parent) and (z) the transactions envisioned by such proposal, in the good faith judgment of the Board, based on the advice of an independent nationally recognized financial advisor and outside legal counsel, is readily financeable and reasonably likely to be consummated without unreasonable delay or unusual conditions compared to the transactions contemplated by the Merger Agreement. 22 In addition to the obligations set forth in the Merger Agreement with respect to an Acquisition Proposal as stipulated in the Merger Agreement, the Company will immediately advise Parent orally and in writing of any request for information relating to an Acquisition Proposal or of any Acquisition Proposal, or any inquiry with respect to or which could lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the person making any such request, Acquisition Proposal or inquiry. The Company will keep Parent fully and timely informed of the status and details (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. Fees and Expenses. The Merger Agreement provides that, except as described below, all costs and expenses incurred in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement will be paid by the party incurring the expense. The Company has agreed to immediately pay, or cause to be paid, in same day funds to Parent the Termination Payment (as defined below) upon demand if (a) Parent terminates the Merger Agreement in the event that (i) the Board or any committee thereof withdraws or modifies its approval or recommendation of the Merger Agreement or the Merger or approves or recommends an Acquisition Proposal or resolves to do any of the foregoing or (ii) the Company enters into an agreement with respect to an Acquisition Proposal; (b) the Company terminates the Merger Agreement in the event that (x) the Board withdraws or modifies its approval or recommendation of the Merger Agreement or the Merger or (y) the Company enters into a definitive agreement pursuant to an Acquisition Proposal as stipulated in the Merger Agreement; (c) the Offer terminates, is withdrawn, is abandoned or expires by reason of the failure of any condition set forth in Exhibit A to the Merger Agreement to be satisfied and prior to such termination a bona fide Acquisition Proposal shall have been made; (d) Parent or the Company terminates the Merger Agreement in the event that Company Stockholder Approval has not been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of shareholders or at any adjournment thereof and prior to such termination a bona fide Acquisition Proposal shall have been made; or (e) the Company terminates the Merger Agreement in the event that the Offer shall have expired or have been withdrawn, abandoned or terminated without any Shares being purchased by Purchaser thereunder on or prior to the 120th day after May 24, 1996 and, prior to such termination, a bona fide Acquisition Proposal shall have been made. 'Termination Payment' means the sum of (i) all of Parent's out-of-pocket expenses incurred in connection with the transactions contemplated by the Merger Agreement (the 'Expenses') and (ii) $10,000,000 (the 'Termination Fee'); provided that if at or prior to the time the Termination Payment is payable the Company has entered into a definitive agreement with a third party for such third party to acquire the Company in a transaction which would qualify to be accounted for, under applicable guidelines of the Commission, as a pooling of interests transaction but for the size of the Termination Payment, then the amount of the Termination Payment shall be reduced to the extent necessary to enable such transaction to qualify as a pooling of interests (but in no event will the Termination Payment be reduced below 1% of the transaction value). The amount of Expenses so payable shall be the amount set forth in an estimate delivered by Parent upon termination subject to upward or downward adjustment as provided in the next sentence. In the event that Parent's actual out-of-pocket expenses exceed such estimate, the amount of any such excess shall be payable upon demand, and in the event that Parent's actual expenses are less than the amount of such estimate, Parent shall promptly refund such lesser amount. Brokers or Finders Fees. Pursuant to the Merger Agreement the Company agrees to indemnify and hold Parent harmless from and against any and all claims, liabilities or obligations with respect to any fees, commissions or expenses asserted by any person to the extent such fee, commission or expense is attributable to any action taken by or on behalf of the Company or any of its subsidiaries or affiliates. Parent agrees to indemnify and hold Company harmless from and against any and all claims, liabilities or obligations with respect to any fees, commissions or expenses asserted by any person to the extent such fee, commission or expense is attributable to any action taken by or on behalf of Parent. Conditions to the Merger. Pursuant to the Merger Agreement, the obligation of each party to effect the Merger is subject to the satisfaction, prior to the closing date of the Merger, of the following conditions: (i) the Merger Agreement and the Merger will have been approved and adopted by the affirmative vote of the holders of a majority of the Shares entitled to vote thereon if such vote is required by applicable law, (ii) the waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act will have expired or been terminated, and any formal investigations relating to the Merger that may have been opened by the Department of Justice or the Federal Trade Commission (by means of a written request for additional information or otherwise) will have been terminated, (iii) no temporary restraining order, preliminary or permanent injunction 23 or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger will be in effect; provided, however, that prior to invoking this condition, each party will use all commercially reasonable efforts to have any such order, injunction, restraint or prohibition vacated; and (iv) the FCC will have granted the Pro Forma Application. The obligations of Parent and Purchaser to effect the Merger are subject to the satisfaction of the following conditions, any or all of which may be waived in whole or in part by Parent and Purchaser: (a) Purchaser will have accepted for payment and paid for all Shares tendered in the Offer such that, after such acceptance and payment, Parent and its affiliates will own, at consummation of the Offer, a sufficient number of outstanding Shares to satisfy the Minimum Tender Condition, except if the failure of this condition to occur is caused by the material breach of the Merger Agreement by Parent or Purchaser; (b) the representations and warranties of the Company set forth in the Merger Agreement will be true and correct as of the date of the Merger Agreement and (except to the extent such representations and warranties expressly speak as of an earlier date) as of the closing date of the Merger (the 'Closing Date') as though made on and as of the Closing Date, and Parent will have received a certificate signed on behalf of the Company by the chief executive officer and by the chief accounting officer of the Company to such effect; (c) the Company will have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants, required to be performed or complied with by it under the Merger Agreement at or prior to the Effective Time, and Parent will have received a certificate signed on behalf of the Company by the chief executive officer and by the chief accounting officer of the Company to such effect; (d) all consents and approvals (collectively, 'Consents') of third parties as are necessary to cure any violation of any agreement arising out of the transactions contemplated by the Merger Agreement will have been obtained, except with respect to those agreements listed or referred to on a certain schedule of the Merger Agreement and such Consents the failure to deliver which could not reasonably be expected to have a Material Adverse Effect (as defined in the Merger Agreement) with respect to the Company; (e) other than the filing of the Certificate of Merger as provided for in the Merger Agreement, all licenses, permits, authorizations, consents, orders, qualifications or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity (including those in connection with: (1) premerger notification under the HSR Act and the expiration or termination of the applicable waiting period thereunder, (2) the proxy statement, Schedule 14D-9 or other reports required to be filed with the Commission, (3) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and (4) certain filings, consents and approvals, as may be required pursuant to the Competition Act (Canada), the Federal Law on Economic Competition of Mexico, the Austrian Cartel Act of 1988, as amended, and the FCC) requisite to consummation of the Merger and the transactions contemplated thereby, will have been filed, occurred or been obtained, as the case may be; (f) the transactions referred to in 'FCC Matters' below shall have been consummated on terms reasonably satisfactory to Parent, and the Long-Form Application (as defined below) shall have been filed; (g) there will not be pending or threatened any suit, action or proceeding by any governmental entity (i) challenging the acquisition by Parent of any Shares, seeking to restrain or prohibit the consummation of the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement or seeking to obtain from the Company, Parent, or any of their respective subsidiaries any damages that are material in relation to the Company and its subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent, or any of their respective subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, or to compel the Company, Parent or any of their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries as a result of the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement, (iii) seeking to impose limitations on the ability of Parent or Purchaser to acquire or hold, or exercise full rights of ownership of, any Shares or shares of capital stock of the Company or the Surviving Corporation, including, without limitation, the right to vote such capital stock on all matters properly presented to the stockholders of the Surviving Corporation, (iv) seeking to prohibit Parent from effectively controlling in any material respect the business or operations of the Company or any of its subsidiaries or (v) which otherwise is reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on Parent; and (h) on or prior to the date of the Merger Agreement, the Company will have caused (i) the Stock Option Plan and the Stock Purchase Plan to be amended, and (ii) the Subordinated Debentures to be amended, in each case effective not later than the Effective Time, in such manner as to provide 24 that after the Effective Time, the holders of the Equity Purchase Rights evidenced thereby will only be entitled to receive the consideration specified in the Merger Agreement. The obligation of the Company to effect the Merger is subject to the satisfaction of the following conditions, any or all of which may be waived in whole or in part by the Company: (i) the representations and warranties of Parent and Purchaser set forth in the Merger Agreement will be true and correct as of the date of the Merger Agreement and (except to the extent such representations and warranties expressly speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by the Merger Agreement, and the Company will have received a certificate signed on behalf of Parent by an officer of Parent to such effect, (ii) Parent and Purchaser will have performed in all material respects all obligations required to be performed by them under the Merger Agreement at or prior to the Closing Date, and the Company will have received a certificate signed on behalf of Parent by an officer of Parent to such effect and (iii) other than the filing of the Certificate of Merger as provided for in the Merger Agreement, all licenses, permits, authorizations, consents, orders, qualifications or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity (including those in connection with: (1) premerger notification under the HSR Act and the expiration or termination of the applicable waiting period thereunder, (2) the proxy statement, Schedule 14D-9 or other Commission reports, (3) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and (4) certain filings, consents and approvals, as may be required pursuant to the Competition Act (Canada), the Federal Law on Economic Competition of Mexico, the Austrian Cartel Act of 1988, as amended and the FCC) requisite to consummation of the Merger and the transactions contemplated thereby, will have been filed, occurred or been obtained, as the case may be. FCC Matters. The Merger Agreement obligates the Company to restructure its interests in two subsidiaries that own and operate radio stations serving Stowe, Vermont and Waco, Texas in order that, subject to FCC approval, control of such subsidiaries will be transferred to a group (the 'Control Group') comprised of not less than a majority of the directors of the Company as of the date of the Merger Agreement. The Company is further obligated to file with the FCC an application (the 'Pro Forma Application') for consent to the pro forma transfer of control of these subsidiaries from the Company to the Control Group. The Control Group is obligated to prepare and file with the FCC an application (the 'Long-Form Application') for consent to the transfer of control of such subsidiaries to the Company following the consummation of the Offer. See Section 15. Termination. The Merger Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company or Parent by: (a) mutual written consent of the Company and Parent; (b) either the Company or Parent (i) if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other as set forth in the Merger Agreement which breach has not been cured within five business days following receipt by the breaching party of notice of such breach from the other party, or (ii) if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Merger has become final and non-appealable; (c) either the Company or Parent if the Merger shall not have been consummated on or before December 20, 1996; provided, that the right to terminate the Merger Agreement under this paragraph will not be available to any party whose failure to fulfill any obligation under the Merger Agreement has been the cause of or resulted in the failure of the Merger to occur on or before such date; (d) Parent if (i) the Board or any committee thereof withdraws or modifies its approval or recommendation of the Merger Agreement or the Merger or approves or recommends an Acquisition Proposal or resolves to do any of the foregoing or (ii) the Company enters into an agreement with respect to an Acquisition Proposal; (e) the Company, if Purchaser fails to commence the Offer within five business days following the date of the initial public announcement of the Offer; (f) Parent, if the Offer terminates, is withdrawn, is abandoned or expires by reason of the failure of any condition set forth in Exhibit A to the Merger Agreement; (g) the Company, if the Offer expires or is withdrawn, abandoned or terminated without any Shares being purchased by Purchaser thereunder on or prior to the 120th day after the date of commencement of the Offer pursuant to the Merger Agreement; (h) the Company if (i) the Board withdraws or modifies its approval or recommendation of the Merger Agreement or the Merger pursuant to an Acquisition Proposal as stipulated in the Merger Agreement and (ii) the Company simultaneously with terminating the Merger Agreement pays Parent the Termination Payment in cash and otherwise complies with the Merger Agreement; (i) Parent or the Company if the Company Stockholder Approval has not been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of shareholders or at any adjournment thereof; (j) the Company if (i) the Company enters 25 into a definitive agreement pursuant to an Acquisition Proposal as stipulated in the Merger Agreement and (ii) the Company simultaneously with terminating the Merger Agreement pays Parent the Termination Payment in cash and otherwise complies with the Merger Agreement; (k) Parent if any of the conditions precedent with respect to each party or with respect to the Parent and the Purchaser shall become impossible to fulfill (other than as a result of any breach by Parent of the terms of the Merger Agreement) and have not been waived in accordance with the terms of the Merger Agreement; or (l) the Company, if any of the conditions precedent with respect to each party or with respect to the Company shall become impossible to fulfill (other than as a result of any breach by the Company of the terms of the Merger Agreement) and have not been waived in accordance with the terms of the Merger Agreement. Indemnification. The Merger Agreement provides that the indemnification obligations set forth in the Company's Certificate of Incorporation and By-laws, as amended to the date of the Merger Agreement, will survive the Merger and will not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors (including any members of the Company's Compensation Committee), officers, employees or agents of the Company (the 'Indemnified Parties'). Parent will cause Company to fulfill its indemnification obligations as set forth in this paragraph. For a period of two years after the Effective Time, the Surviving Corporation will maintain in effect the employed lawyers' errors and omissions liability policy maintained by the Company and its subsidiaries (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous in any material respect to the Indemnified Parties covered thereby) with respect to matters arising before the Effective Time, provided that Surviving Corporation will not be required to pay an annual premium for such insurance in excess of $60,000, but in such case will purchase as much coverage as possible for such amount. Amendment. Subject to applicable law, the Merger Agreement may be amended, modified or supplemented only by written agreement of Parent, Purchaser and the Company at any time prior to the Effective Time with respect to any of the terms contained in the Merger Agreement; provided, however, that after the Company Stockholder Approval (as defined in the Merger Agreement) is obtained, no such amendment or modification will reduce the amount or change the form of consideration to be delivered to the Stockholders of the Company. Timing. The exact timing and details for the Merger will depend upon legal requirements and a variety of other factors, including the number of Shares acquired by Purchaser pursuant to the Offer. Although Purchaser has agreed to cause the Merger to be consummated on the terms and subject to the conditions set forth above, there can be no assurance as to the timing of the Merger. THE STOCKHOLDERS AGREEMENT As an inducement and a condition to entering into the Merger Agreement, Parent required that certain Stockholders (the 'Selling Stockholders') agree, and the Selling Stockholders agreed, to enter into the Stockholders Agreement. The following is a summary of the material terms of the Stockholders Agreement. This summary is not a complete description of the terms and conditions thereof and is qualified in its entirety by reference to the full text thereof which is incorporated herein by reference and a copy of which has been filed with the Commission as an exhibit to the Schedule 14D-1. The Stockholders Agreement may be examined, and copies thereof may be obtained, as set forth in Section 8 above. Tender of Shares. Upon the terms and subject to the conditions of the Stockholders Agreement, each Selling Stockholder has agreed to validly tender (and not to withdraw) pursuant to and in accordance with the terms of the Offer, not later than the fifth business day after commencement of the Offer, the number of Shares set forth opposite such Stockholder's name on Schedule I to the Stockholders Agreement (the 'Existing Shares'), as well as any Shares acquired by such Stockholder after the date of the Stockholders Agreement and prior to the termination of the Stockholders Agreement, whether upon the exercise of options, warrants or rights, the conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend, distribution or otherwise (collectively with the Existing Shares, the 'Shares'). 26 Voting. Each Selling Stockholder has agreed that during the period commencing on the date of the Stockholders Agreement and continuing until the first to occur of the Effective Time or termination of the Merger Agreement in accordance with its terms, at any meeting of the Stockholders, however called, or in connection with any written consent of the Stockholders, the Selling Stockholders will vote (or cause to be voted) the Shares held of record or beneficially owned by the Selling Stockholder whether now owned or hereafter acquired, (i) in favor of the Merger, the execution and delivery by the Company of the Merger Agreement and the approval of the terms thereof and each of the other actions contemplated by the Merger Agreement and the Stockholders Agreement and any actions required in furtherance thereof; (ii) against any action or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or the Stockholders Agreement (before giving effect to any materiality or similar qualifications contained therein); and (iii) except as otherwise agreed to in writing in advance by Parent, against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or its subsidiaries; (B) a sale, lease or transfer of a material amount of assets of the Company or its subsidiaries, or a reorganization, recapitalization, dissolution or liquidation of the Company or its subsidiaries; (C) (1) any change in a majority of the persons who constitute the Board; (2) any change in the present capitalization of the Company or any amendment of the Company's Certificate of Incorporation or By-Laws; (3) any other material change in the Company's corporate structure or business; or (4) any other action involving the Company or its subsidiaries which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, or materially adversely affect the Merger and the transactions contemplated by the Stockholders Agreement and the Merger Agreement. Each Selling Stockholder has further agreed not to enter into any agreement or understanding with any person or entity the effect of which would be inconsistent or violative of the provisions and agreements described above. Representations and Warranties, Covenants and Other Agreements. Each Selling Stockholder has made certain representations, warranties and covenants, including with respect to (i) ownership of Shares, (ii) legal capacity, power and authority to enter into and perform its obligations under the Stockholders Agreement, (iii) absence of conflicts, (iv) absence of liens and encumbrances with respect to the Shares, (v) absence of fees other than those arising from existing financial advisory and investment banking agreements, (vi) prohibition on solicitation, (vii) restrictions on the transfer of the Shares, and (viii) waiver of appraisal rights. EMPLOYMENT AGREEMENTS Messrs. Poch, Fassler and McCleary have each amended their respective employment agreements with the Company pursuant to their respective Amendment Agreements effective upon, and subject to, the acceptance by Purchaser of, or payment by Purchaser for, Shares pursuant to the Offer. Upon effectiveness of the Amendment Agreements for each of Messrs. Poch and McCleary, such Amendment Agreements shall (i) modify and extend to 48 months following the executive's termination of employment the provisions relating to such executive's non-competition with the Company, non-solicitation of customers of the Company and non-disclosure of Company information, (ii) provide that the Company can terminate the executive at any time, (iii) provide that the executive's employment with the Company shall be deemed terminated if there is an attempt to change the executive's place of work to a location more than 15 miles from its present location and, in the case of Mr. Poch, if there is a material diminution in the executive's duties, (iv) provide for severance pay if the executive's employment is terminated (other than for cause or on account of death or disability) (A) in the amount of $1,000,000 if such termination occurs during the 12-month period following the effective date of the Amendment Agreement and (B) if such termination occurs subsequent to such 12-month period, in a lump-sum amount equal to the compensation not yet paid under the terms of such Amendment Agreement, (v) provide that the Company and the executive will negotiate to amend the bonus provisions in the executive's employment agreement so as not to result in an enlargement or diminution of the executive's right to bonus compensation following the Merger (except as provided in clause (vi)) and (vi) in the case of Mr. Poch, provide for a $100,000 increase in the amount of his bonus in respect of each of the first two years following the effective date of his Amendment Agreement. Upon the effectiveness of Mr. Fassler's Amendment Agreement, Mr. Fassler will serve, pursuant to such agreement, as an advisor to the Company for a period of two and one-half years in connection with future mergers and acquisitions by the Company. During the first two years of the term of his Amendment Agreement, 27 Mr. Fassler will be available to the Company for up to 50 days per year and, during the last six months of such agreement, he will be available to the Company for up to 25 days. Mr. Fassler will not be required to perform advisory services on a regular basis at a location which is more than 15 miles from Stamford, Connecticut, other than reasonable travel requirements. The Company will pay Mr. Fassler (i) $500,000 at the effective date of his Amendment Agreement, (ii) $275,000 per year for the first two years of the term of his Amendment Agreement and (iii) $100,000 for the last six months of the term of his Amendment Agreement, in each case irrespective of whether the Company uses Mr. Fassler's advisory services. To the extent that the employee benefits which Mr. Fassler received prior to the effective date of his Amendment Agreement cannot reasonably be provided to him under the Company's benefit plans, he will receive a cash payment economically equivalent to such benefits. In the event of termination of Mr. Fassler's employment prior to the end of the term of his Amendment Agreement (other than for cause), Mr. Fassler is entitled to receive a lump sum payment equal to his compensation pursuant to such agreement, discounted based on the prime rate of Chemical Bank then in effect. The non-competition, non-solicitation and non-disclosure provisions of Mr. Fassler's employment agreement have been amended by his Amendment Agreement in the same manner described above concerning Messrs. Poch and McCleary. Mr. Fassler's Amendment Agreement does not provide for the future bonuses that he would otherwise have been entitled to under his employment agreement. Copies of the Amendments and the Advisory Agreement have been filed as an exhibit to the Schedule 14D-1 of the Purchaser filed pursuant to Rule 14d-1 under the Exchange Act, and copies thereof may be obtained from the principal office of the Commission in the manner set forth in Section 8 above (except that they will not be available at the regional offices of the Commission). OTHER MATTERS Appraisal Rights. No appraisal rights are available to Stockholders in connection with the Offer. However, if the Merger is consummated, a Stockholder will have certain rights under Section 262 of the DGCL to dissent and to demand appraisal of, and payment in cash for the fair value of, that Stockholder's Shares. Those rights, if the statutory procedures are complied with, could lead to a judicial determination of the fair value (excluding any value arising from the Merger) required to be paid in cash to dissenting Stockholders for their Shares. Any judicial determination of the fair value of Shares could be based upon considerations other than or in addition to the Offer Price and the market value of the Shares, including asset values and the investment value of the Shares. The value so determined could be more or less than the Offer Price or the Merger Consideration. If a Stockholder who demands appraisal under Section 262 of the DGCL fails to perfect, or effectively withdraws or loses, his or her right to appraisal, as provided in the DGCL, the Shares of that Stockholder will be converted into the Merger Consideration in accordance with the Merger Agreement. A Stockholder may withdraw his or her demand for appraisal by delivering to Purchaser a written withdrawal of such demand for appraisal and acceptance of the Merger. Failure to follow the steps required by Section 262 of the DGCL for perfecting appraisal rights may result in the loss of those rights. Going Private Transactions. Rule 13e-3 under the Exchange Act is applicable to certain 'going-private' transactions. Purchaser does not believe that Rule 13e-3 will be applicable to the Merger unless, among other things, the Merger is completed more than one year after termination of the Offer. If applicable, Rule 13e-3 would require, among other things, that certain financial information regarding the Company and certain information regarding the fairness of the Merger and the consideration offered to minority Stockholders be filed with the Commission and disclosed to minority Stockholders prior to consummation of the Merger. 13. DIVIDENDS AND DISTRIBUTIONS If, on or after the date of the Merger Agreement, the Company should (i) split, combine or otherwise change the Shares or its capitalization, (ii) acquire currently outstanding Shares or otherwise cause a reduction in the number of outstanding Shares or (iii) issue or sell additional Shares, shares of any other class of capital stock, other voting securities or any securities convertible into, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, then, subject to the provisions of Section 14 below, Purchaser, in its sole discretion, may make such adjustments as it deems appropriate in the Offer Price and other terms of the Offer, including, without limitation, the number or type of securities offered to be purchased. 28 If, on or after the date of the Merger Agreement, the Company declares or pays any cash dividend on the Shares, makes other distributions on the Shares or issues, with respect to the Shares, any additional Shares, shares of any other class of capital stock, other voting securities or any securities convertible into, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, payable or distributable to Stockholders of record prior to the transfer of the Shares purchased pursuant to the Offer to Purchaser or its nominee or transferee on the Company's stock transfer records, then, subject to Section 14 below, (i) the Offer Price may, in the sole discretion of Purchaser, be reduced by the amount of any cash dividend or cash distribution and (ii) the whole of any non-cash dividend, distribution or issuance to be received by the tendering Stockholders will (a) be received and held by the tendering Stockholders for the account of Purchaser and will be required to be remitted promptly and transferred by each tendering Stockholder to the Depositary for the account of Purchaser, accompanied by appropriate documentation of transfer or (b) at the direction of Purchaser, exercised for the benefit of Purchaser, in which case the proceeds of exercise promptly will be remitted to Purchaser. Pending the remittance and subject to applicable law, Purchaser will be entitled to all rights and privileges as owner of any non-cash dividend, distribution, issuance or proceeds and may withhold the entire Offer Price or deduct from the Offer Price the amount or value of the non-cash dividend, distribution, issuance or proceeds, as determined by Purchaser in its sole discretion. Pursuant to the terms of the Merger Agreement, the Company is prohibited from taking any of the actions described in the two preceding paragraphs and nothing in this Offer to Purchase shall constitute a waiver by Purchaser or Parent of any of its rights under the Merger Agreement or a limitation of remedies available to Purchaser or Parent for any breach of the Merger Agreement, including termination of the Merger Agreement. 14. CERTAIN CONDITIONS OF THE OFFER Notwithstanding any other provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the Commission, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares tendered, and may postpone the acceptance for payment or, subject to the restriction referred to above, payment for any Shares tendered, and may amend or terminate the Offer (whether or not any Shares have theretofore been purchased or paid for) (A) unless the following conditions have been satisfied: (i) there have been validly tendered and not withdrawn prior to the time the Offer shall otherwise expire a number of Shares which constitutes a majority of the Shares outstanding on a fully-diluted basis on the date of purchase ('on a fully-diluted basis' for purposes of such condition meaning, as of any date, the number of Shares outstanding, together with Shares the Company is or may be required to issue pursuant to obligations outstanding at that date under employee stock option or other benefit plans, options, warrants or convertible or exchangeable securities, or otherwise); (ii) prior to the time the Offer shall otherwise expire, Preferred Securities outstanding on the date of the Merger Agreement having an aggregate liquidation preference of more than 50% of the aggregate liquidation preference of all Preferred Securities outstanding on the date of the Merger Agreement will have been converted by the holders thereof into Shares; (iii) all regulatory and related approvals of Governmental Entities have been obtained or made on terms reasonably satisfactory to Purchaser (including, without limitation, pursuant to the Competition Act (Canada), the Federal Law on Economic Competition of Mexico and the Austrian Cartel Act of 1988, as amended); (iv) any applicable waiting periods under the HSR Act shall have expired or been terminated prior to the expiration of the Offer; (v) the Company shall have caused the Stock Option Plan, the Stock Purchase Plan and the Subordinated Debentures to be amended, in each case effective no later than the Effective Time, in such manner as to provide that after the Effective Time, the holders of the Equity Purchase Rights evidenced thereby shall only be entitled to receive the consideration specified in the Merger Agreement; (vi) the FCC shall have granted the Pro-Forma Application, and the transactions contemplated by the Merger Agreement with respect thereto shall have been consummated on terms reasonably satisfactory to Parent (the 'FCC Condition'); and/or (B) if, at any time on or after the date of the Merger Agreement and before acceptance for payment of, or payment for, such Shares any of the following events shall occur or shall be deemed by Purchaser to have occurred: (i) there shall be threatened, instituted or pending by any United States, Canadian or other court or Governmental Entity any suit, action or proceeding (1) challenging the acquisition by Parent or Purchaser of any Shares under the Offer or seeking to restrain or prohibit the making or consummation of the Offer or Merger or seeking to obtain from the Company, Parent or any of their respective subsidiaries any damages 29 that are material in relation to the Company and its subsidiaries taken as a whole, (2) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, or to compel the Company or Parent to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by the Merger Agreement, (3) seeking to impose material limitations on the ability of Parent or Purchaser to acquire or hold, or exercise full rights of ownership of, any Shares accepted for payment pursuant to the Offer, including, without limitation, the right to vote such Shares on all matters properly presented to the Stockholders, or (4) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect any material portion of the business or operations of the Company and its subsidiaries; or (ii) any United States, Canadian or other Governmental Entity or authority or United States, Canadian or other domestic or foreign court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect and which (1) materially restricts, prevents or prohibits consummation of the Offer, the Merger or any other transaction contemplated by the Merger Agreement or results in the obligation to pay material damages as a result of or in connection with the transactions contemplated by the Merger Agreement, (2) prohibits or limits materially the ownership or operation by the Company, Parent or any of their subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or compels the Company, Parent or any of their subsidiaries to dispose of or hold separate all or any material portion of the business or assets of the Parent or any of its subsidiaries, or of the Company and its subsidiaries taken as a whole, (3) imposes limitations on the ability of Parent, Purchaser or any other subsidiary of Parent to acquire or hold, or to exercise effectively full rights of ownership of, any Shares, including, without limitation, the right to vote any Shares acquired by Purchaser pursuant to the Offer or otherwise on all matters properly presented to the Stockholders, including, without limitation, the approval and adoption of the Merger Agreement and the transactions contemplated thereby or (4) requires divestitures by Parent, Purchaser or any other affiliate of Parent of any Shares; (iii) the representations and warranties of the Company contained in the Merger Agreement will not be true and correct when made or (except for those representations and warranties that address matters as of a specific date) will have ceased to be true as of the date of consummation of the Offer as though made on and as of such date; (iv) the Company shall not have performed or complied in all material respects with any of its obligations under the Merger Agreement to be performed or complied with by it; (v) the Merger Agreement shall have been terminated in accordance with its terms; (vi) the Board will have (1) withdrawn or materially modified or changed (including by amendment of the Schedule 14D-9) in a manner adverse to Purchaser, its recommendation of the Offer, the Merger Agreement or the Merger, or (2) the Board will have approved or recommended an Acquisition Proposal; (vii) all consents of third parties as are necessary in connection with the transactions contemplated hereby (including consents necessary to prevent any conflict, violation or breach of any agreement of the Company or any of its subsidiaries, other than conflicts, breaches or violations of the agreements identified on Schedule 4.1(c)(ii) to the Merger Agreement) will have been obtained, except such consents the failure to deliver which could not reasonably be expected to have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or prospects of the Company and its subsidiaries, taken as a whole; (viii) other than the filing of the Certificate of Merger with respect to the Merger as provided for by Section 2.3 of the Merger Agreement, all licenses, permits, authorizations, consents, orders, qualifications or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity requisite to consummation of the Merger and the transactions contemplated thereby, will have been filed, occurred or been obtained, as the case may be; (ix) (1) it shall have been publicly disclosed or Purchaser will have otherwise learned that, except as contemplated by the Stockholders Agreement, any person or 'group' (as defined in Section 13(d)(3) of the Exchange Act), other than Parent or its affiliates or any group of which any of them is a member, will have 30 acquired beneficial ownership (determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of more than 20% of any class or series of capital stock of the Company (including the Shares), through the acquisition of stock, the formation of a group or otherwise, or will have been granted an option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than 20% of any class or series of capital stock of the Company (including the Shares); or (2) any person or group will have entered into a definitive agreement or agreement in principle with the Company with respect to (A) a merger, consolidation or other business combination with, or acquisition of a material portion of the assets of, the Company, or (B) a tender or exchange offer for Shares; or (x) there will have occurred, developed or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence or any law, regulation, action, government regulation, inquiry or other occurrence of any nature whatsoever which, in the opinion of Purchaser, materially adversely affects or involves, or is reasonably likely to materially adversely affect or involve, (1) the financial markets in the United States generally, or (2) the financial condition, business, operations, assets, affairs or prospects of the Company and its subsidiaries taken as a whole or the value of the Shares; or which, in the judgment of Purchaser in any such case, and regardless of the circumstances (including any action or omission by Parent or Purchaser) giving rise to any such condition, makes it inadvisable to proceed with such acceptance for payment or payment. The foregoing conditions are for the sole benefit of Purchaser and its affiliates and may be asserted by Purchaser regardless of the circumstances (including, without limitation, any action or inaction by Purchaser or any of its affiliates) giving rise to any such condition or may be waived by Purchaser, in whole or in part, from time to time in its sole discretion, except as otherwise provided in the Merger Agreement. The failure by 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 and may be asserted at any time and from time to time. Any determination by Purchaser concerning any of the events described in the Merger Agreement will be final and binding. 15. CERTAIN LEGAL MATTERS Except as described in this Section 15, based on a review of publicly available filings made by the Company with the Commission and other publicly available information concerning the Company, but without any independent investigation, neither Purchaser nor Parent is aware of any license or regulatory permit that appears to be material to the business of the Company and its subsidiaries, taken as a whole, that might be adversely affected by Purchaser's acquisition of Shares as contemplated in this Offer to Purchase or of any approval or other action by any governmental authority that would be required for the acquisition or ownership of Shares by Purchaser as contemplated in this Offer to Purchase. Should any such approval or other action be required, Purchaser and Parent presently contemplate that such approval or other action will be sought, except as described below under 'State Takeover Laws.' There can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial conditions; or that failure to obtain any such approval or other action might not result in consequences adverse to the Company's business; or that certain parts of the Company's business might not have to be disposed of if such approvals were not obtained or other actions were not taken or in order to obtain any such approval or other action. If certain types of adverse action are taken with respect to the matters discussed below, Purchaser could decline to accept for payment or pay for any Shares tendered. See Section 14 above for certain conditions to the Offer. Litigation. On May 20, 1996, a purported class action was commenced in the Court of Chancery of the State of Delaware, New Castle County, on behalf of holders of Shares. The defendants are Leonard J. Fassler, Edward A. Kerbs, Gerald M. LeBow, Gerald A. Poch, Anthony T. Towell, James K. McCleary, Richard J. Williams (all of whom are Company directors), the Company and GE Capital Services. The complaint alleges that the individual defendants breached a fiduciary duty, and that the Company and GE Capital Services aided and abetted a breach of fiduciary duty by, among other things, failing to implement 'procedures for the maximization of shareholder value' and arranging for the payment of 'an unreasonably low and unfair price' in connection with GE Capital Services' proposed purchase of the outstanding Shares of the Company. Damages in an unspecified amount and injunctive relief, including an order enjoining GE Capital Services' proposed 31 purchase of the outstanding Shares of the Company, are sought. The absence of an injunction, among other things, is a condition to Purchaser's obligation to purchase the Shares tendered pursuant to the Offer. See Section 14. The foregoing description of the complaint is qualified in its entirety by reference to such complaint, filed as Exhibit (g)(1) to Purchaser's and Parent's Tender Offer Statement on Schedule 14D-1 with respect to the Offer, filed with the Commission on the date hereof and incorporated herein by reference. State Takeover Laws. A number of states throughout the United States have enacted takeover statutes that purport, in varying degrees, to be applicable to attempts to acquire securities of corporations that are incorporated or have assets, stockholders, executive offices or places of business in those states. In Edgar v. MITE Corp., the Supreme Court of the United States held that the Illinois Business Takeover Act, which involved state securities laws that made the takeover of certain corporations more difficult, imposed a substantial burden on interstate commerce and was therefore unconstitutional. In CTS Corp. v. Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the affairs of a target corporation without prior approval of the remaining stockholders, provided that the laws were applicable only under certain conditions. Section 203 of the DGCL limits the ability of a Delaware corporation to engage in business combinations with 'interested stockholders' (defined as any beneficial owner of 15% or more of the outstanding voting stock of the corporation) unless, among other things, the corporation's board of directors has given its prior approval of either the business combination or the transaction that resulted in the stockholder becoming an 'interested stockholder.' The Company has represented in the Merger Agreement that it approved the Merger Agreement, the Stockholders Agreement and the transactions contemplated thereby, including the Offer and the Merger, and has taken all necessary steps to render Section 203 of the DGCL inapplicable to the Merger Agreement, the Stockholders Agreement and the transactions contemplated thereby, including the Offer and the Merger. Based on information supplied by the Company and the Company's representations in the Merger Agreement, Purchaser does not believe that any state takeover statutes apply to the Offer or the Merger. Neither Purchaser nor Parent has currently complied with any state takeover statute or regulation. Purchaser reserves the right to challenge the applicability or validity of any state law purportedly applicable to the Offer or the Merger and nothing in this Offer to Purchase or any action taken in connection with the Offer or the Merger is intended to be a waiver of that right. If it is asserted that any state takeover statute is applicable to the Offer or the Merger and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Merger, Purchaser might be required to file certain information with, or to receive approvals from, the relevant state authorities, and Purchaser might be unable to accept for payment or pay for Shares tendered pursuant to the Offer, or be delayed in consummating the Offer or the Merger. In such case, Purchaser may not be obligated to accept for payment or pay for any Shares tendered pursuant to the Offer. Antitrust. Under the provisions of the HSR Act applicable to the Offer, the purchase of Shares under the Offer may be consummated following the expiration of a 15-calendar day waiting period that follows the filing by Purchaser of a Notification and Report Form with respect to the Offer, unless Purchaser receives a request for additional information or documentary material from the Antitrust Division or the Federal Trade Commission (the 'FTC') or unless early termination of the waiting period is granted. Such filing was made on May 23, 1996 and such waiting period will expire at 11:59 p.m. on Friday , June 7, 1996. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC requests additional information or documentary material from Purchaser concerning the Offer, the waiting period will be extended and would expire 11:59 P.M., New York City time, on the tenth calendar day after the date of substantial compliance by Purchaser with such request. Only one extension of the waiting period pursuant to a request for additional information is authorized by the HSR Act. Thereafter, the waiting period may be extended only by court order or with the consent of Purchaser. In practice, complying with a request for additional information or documentary material can take a significant amount of time. In addition, if the Antitrust Division or the FTC raises substantive issues in connection with a proposed transaction, the parties frequently engage in negotiations with the relevant governmental agency concerning possible means of addressing those issues and may agree to delay consummation of the transaction while the negotiations continue. Moreover, the Merger Agreement provides that the Offer may be extended for (x) for up to twenty (20) business days after the initial expiration date of the Offer or (y) for longer periods (not to exceed 120 calendar days from the commencement of the Offer) in the event that any condition to the Offer is not satisfied. 32 The FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions such as Purchaser's proposed acquisition of the Company. At any time before or after Purchaser's purchase of Shares pursuant to the Offer, 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 the consummation of the Merger or seeking the divestiture of Shares acquired by Purchaser or the divestiture of substantial assets of Purchaser or its subsidiaries, or of the Company or its subsidiaries. Private parties may also bring legal action under the antitrust laws under certain circumstances. 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, of the result of that challenge. FCC Regulations. (i) The Company, through certain wholly owned subsidiaries that it controls (the 'Licensee Subsidiaries'), owns and operates an FM radio station serving Stowe, Vermont and an AM/FM combination station serving Waco, Texas (the 'Waco Station'). In addition, a subsidiary of the Company has a limited partnership interest in Radio Equity Partners, Limited Partnership, certain subsidiaries of which own and operate radio stations. These stations are subject to the Communications Act of 1934, as amended (the 'Communications Act') and the rules and regulations of the FCC. The Communications Act and applicable FCC regulations prohibit the transfer of control of a corporation, such as the Licensee Subsidiaries, that holds a broadcast license or the assignment of such license without prior FCC approval. An application must be filed with the FCC in order to obtain such approval. The Communications Act requires the FCC to find that the proposed transfer or assignment would serve the public interest, convenience and necessity and that the proposed transferee or assignee possesses the requisite legal, financial, technical and other qualifications to operate the stations before it may grant the proposed transfer of control or assignment. The Offer, if consummated, will result in a transfer of control of the Licensee Subsidiaries that requires the prior approval of the FCC. Transfer of the limited partnership interest in Radio Equity Partners, Limited Partnership to the Purchaser does not require the prior approval of the FCC. The FCC's regulations recognize two categories of transfers of control and assignments: (i) pro forma or short-form transfers or assignments which, among other things, do not involve a substantial change in ownership or control either because less than 50% of the voting control of the licensed entity is changing hands or because the same persons or entities will exercise de facto control over the licensed entity both before and after the transfer of control or assignment and (ii) long-form transfers or assignments that do involve a substantial change in control. Applications for approval of short-form transfers or assignments are filed on FCC Form 316 and do not require a 30-day public notice period prior to action by the FCC. Applications for approval of long-form transfers or assignments are filed on FCC Form 314 (assignments) or 315 (transfers of control) and do require a 30-day public notice period prior to action by the FCC on such applications. To permit the Offer to proceed and to be consummated in advance of FCC approval of a long-form application that transfers control of the Licensee Subsidiaries to Purchaser, the Company intends to file promptly one or more applications on FCC Form 316 (collectively, the 'Short-Form Application') that seeks FCC approval of a transfer of control of the Licensee Subsidiaries to a group (the 'Control Group') comprised of not less than a majority of the Company's current directors. To effect this transfer of control, the Licensee Subsidiaries (or a newly-formed corporation which would acquire the capital stock of the Licensee Subsidiaries) would authorize two classes of capital stock, Class A voting shares (the 'Voting Stock') representing one percent (1%) of the equity and one percent (1%) of the total number of shares of outstanding capital stock of the issuer and Class B non-voting shares (the 'Non-Voting Stock') representing ninety-nine percent (99%) of the equity and ninety-nine percent (99%) of the total number of shares of outstanding capital stock of the issuer. The Voting Stock would be issued to the Control Group (either directly or through a newly formed limited liability company ('New LLC'), the sole members of which would be the Control Group). The Non-Voting Stock would be held by the Company. The Control Group would have the right to vote all of the Voting Stock. The Company would have no right to vote, except that the Company may vote on certain matters deemed to be outside the ordinary course of business, as long as the right to vote on such matters does not result in the Company holding an 'attributable' ownership interest in the Licensee Subsidiaries under and within the meaning of the FCC's regulations. Because the Control Group currently exercises de facto control over the Licensee Subsidiaries and would exercise both de facto and de jure control over the Licensee Subsidiaries, Purchaser believes that the proposed 33 direct or indirect transfer of control of the Licensee Subsidiaries to the Control Group does not involve a substantial change in ownership under and within the meaning of the FCC's regulations and that approval therefor is appropriately sought through the FCC's short-form application procedures. There can be no assurance, however, that approval of the Short-Form Application will be granted or, if granted, that such approval will be on terms and conditions acceptable to the Company. Upon grant of the Short-Form Application and transfer of control of the Licensee Subsidiaries to the Control Group, the Control Group, the Licensee Subsidiaries and Purchaser will promptly file with the FCC an application on FCC Form 315 (the 'Long-Form Application') that seeks FCC approval of a transfer of control of the Licensee Subsidiaries to Purchaser. Receipt of approval by the FCC of the Short-Form Application will not eliminate the requirement that the Purchaser seek and receive FCC approval of the Long-Form Application prior to assuming direct or indirect control of the Licensee Subsidiaries. Approval of the Short-Form Application and the filing of the Long-Form Application would, however, satisfy the FCC Condition. The FCC has recently granted an application to assign the licenses of the Waco Station to a third party. It is not anticipated that the assignment of the Waco Station will have been consummated prior to FCC action on the Short-Form Application or that the filing of the Short-Form Application will have an adverse effect on the assignment of the licenses of the Waco Station. It is anticipated that consummation of the assignment of the Waco Station will occur prior to the approval and consummation of the Long-Form Application in which event the Waco Licensee Subsidiary will be omitted from the Long-Form Application. The FCC generally acts upon unopposed short-form applications within two to three weeks of the filing of such applications. There can be no assurance that the FCC will reach a decision on the Short-Form Application within such a time period. Interested parties may file informal objections to the Short-Form Application at any time prior to FCC action on the Short-Form Application. If an objection is filed to a short-form application, the FCC generally will take longer to reach a decision. There can be no assurance that an informal objection will not be filed to the Short-Form Application. Interested parties may file petitions to deny approval of the Long-Form Application within 30 days after the date of the FCC's public notice announcing the acceptance for filing of the Long-Form Application, and the FCC may not grant the Long-Form Application prior to the completion of this 30-day public notice period. Interested parties may file informal objections to the Long-Form Application at any time prior to FCC action on the Long-Form Application. The parties to the Long-Form Application are entitled to file an opposition to any petitions to deny or informal objections filed against the Long-Form Application. In recent years, the FCC has generally reached decisions regarding applications for transfer of control in substantial mergers involving entities with significant FCC regulated interests within 12 months or less of the filing of the long-form application. There can be no assurance, however, that the FCC will reach a decision on the Long-Form Application within such a time period. The Communications Act and the FCC's regulations permit the FCC to delegate authority to its staff in matters that do not present novel questions of fact, law or policy. Under this delegated authority, FCC staff members regularly review and either grant or deny applications for approval to transfer control of FCC-licensed entities. Staff decisions made pursuant to delegated authority are subject to reconsideration and to review by the full FCC. Petitions for reconsideration and applications for review must be filed within 30 days after public notice of the staff action at issue. In addition, the FCC may on its own motion review actions taken pursuant to delegated authority. The FCC has 40 days after public notice of such actions to begin such review. Generally, decisions made by the FCC staff acting under delegated authority are reached in less time than decisions made by the full FCC. Purchaser believes that action on the Short-Form Application and the Long-Form Application will be taken by the FCC staff acting under delegated authority, but there can be no assurance that the full FCC will not act in the first instance on either or both of the Short-Form Application and the Long-Form Application. If the full FCC, rather than the staff, grants either or both of the Short-Form Application or the Long-Form Application, interested parties may file petitions for reconsideration of such orders granting approval. As to each such application, petitions for reconsideration must be filed within 30 days after the date on which the FCC releases public notices of its approval orders. The filing of such a petition would not stay the FCC's approval automatically, although a stay can be sought from the FCC or from a court. In addition, the FCC may reconsider its approval orders within 30 days of the public notice even if no such petitions are filed. Interested parties may also seek judicial review of the FCC's decision, a request for which must also be filed within 30 days after the date on which the FCC releases public notice of its order either approving or disapproving the Short-Form 34 Application or the Long-Form Application or its order disposing of any petitions for reconsideration of the FCC's initial decision. (ii) Alien Ownership. The Communications Act and the FCC's regulations impose restrictions on the percentage of the stock of a corporation that holds a broadcast license issued by the FCC that may be owned by foreign corporations or persons who are not citizens of the United States. Purchaser does not believe that its acquisition of control of the Licensee Subsidiaries through consummation of the Long-Form Application would violate any of the restrictions relating to ownership and control by foreign corporations and non-U.S. citizens, (iii) Directors, Officers and Certain Shareholders. The FCC assesses, as part of the process of considering applications for consent to transfers of control, certain information with respect to the persons and entities deemed to have an 'attributable interest' in the entity to which control is being transferred. Through such consideration, the FCC determines whether the proposed transferee of control possesses the requisite legal, financial, technical and other qualifications to hold the FCC licenses. Under existing FCC regulations, the officers, directors and, in most circumstances, equity holders who own five percent (5%) or more of the outstanding voting stock (and their officers and directors, if any) of a company that holds broadcast licenses are deemed to have an attributable interest in the company for purposes of determining compliance with the FCC's local and national multiple-ownership rules for television broadcast stations, the local multiple-ownership rules for radio stations, the cable/television broadcast station cross-ownership rule and the newspaper/broadcast cross-ownership rule. Passive institutional investors, such as mutual funds, insurance companies and bank trust departments, may own up ten percent (10%) of the outstanding voting stock without being subject to attribution. Indirect voting stock interests will be deemed attributable if the product of the ownership percentages in each link of the vertical ownership chain (excluding interests in excess of 50%) is equal to or greater than five percent (5%). The FCC also has a 'cross-interest' policy, which operates as an extension of the multiple and cross-ownership rules to bar certain relationships not expressly prohibited by the FCC's regulations. Under this policy, a person or entity may be prohibited from having both an attributable interest in one media property and a substantial non-attributable equity ownership interest in another media property which serves substantially the same area if attributable ownership interests in both media properties would violate the FCC's ownership regulations. Parent currently owns and operates through subsidiaries a television station in San Juan, Puerto Rico. Parent also owns directly or through subsidiaries non-attributable ownership interests in television broadcast stations and cable television systems. GE currently owns and operates through its NBC subsidiary nine television stations located in New York, New York; Washington, D.C.; Philadelphia, Pennsylvania; Miami, Florida; Chicago, Illinois; Los Angeles, California; Columbus, Ohio; Providence, Rhode Island; and Raleigh-Durham (Goldsboro), North Carolina. Purchaser does not believe that any of the attributable or non-attributable interests in media properties held by it or its affiliates will result in a violation of the FCC's multiple or cross-ownership rules or cross-interest policy when combined with the attributable media interests of the Company. Competition Act (Canada). Certain provisions of the Competition Act require pre-merger notification to the Director of Investigation and Research (the 'Canadian Director') of significant transactions, which may include the acquisition of a large percentage of the stock of a public company that has Canadian operations, or a merger or amalgamation involving such an entity. Pre-merger notification is generally required with respect to transactions in which the parties to the transaction and their affiliates have assets in Canada, or annual gross revenues from sales in, from or into Canada in excess of Cdn. $400 million and which involve the direct or indirect acquisition of an operating business in Canada of which the value of the Canadian assets, or the annual gross revenues from sales in or from Canada generated by such assets, exceed Cdn. $35 million (or, in the case of an amalgamation of two or more corporations, one or more of which carries on or controls a corporation that carries on an operating business in Canada, the Canadian assets or the annual gross revenues from sales in or from Canada of the entity that results from such amalgamation or the entities controlled by such entity exceed Cdn. $70 million). In the case of an acquisition of shares of a public company, the transaction must also result in the acquiror holding voting shares that carry more than 20% of the outstanding votes (or more than 50% if the acquiror already holds 20% or more) attached to all the voting shares of the public company. If a transaction is subject to the pre-merger notification requirements, the parties must file either a short-form or long-form notification and wait the applicable waiting period before completing the transaction. The waiting period for a 35 short-form notification is seven days after a complete notification is filed, and 21 days in the case of a long-form notification. If a short-form notification is filed, the Canadian Director may require the filing of a long-form notification at any time prior to the expiration of the seven-day waiting period, in which event the waiting period would be extended to 21 days after a complete long-form notification is filed. A 'no-action' advisory opinion, while confirming that the Canadian Director does not currently intend to challenge a transaction, does not bring with it the statutory bar on subsequent challenge. The Canadian Director may apply to the 'Competition Tribunal,' a specialized tribunal empowered to deal with certain matters governed by the Competition Act with respect to a 'merger' (as defined in the Competition Act) and, if the Competition Tribunal finds that the merger prevents or lessens or is likely to prevent or lessen competition substantially, it may order that the merger not proceed or, in the event that the merger has been completed, order its dissolution or the disposition of some or all the assets or shares involved. A merger may be subjected to an order of the Competition Tribunal whether or not it is a notifiable transaction. Notwithstanding the giving of the required notice and expiration of the applicable waiting period, the Canadian Director may apply for an order of the Competition Tribunal at a time up to three years after the merger has been substantially completed. In some instances, the Canadian Director may issue an 'advance ruling certificate,' in which he certifies that he would not have sufficient grounds on which to apply to the Competition Tribunal under the merger provisions of the Competition Act or a 'no-action' advisory opinion. If the Canadian Director issues an advance ruling certificate in respect of a proposed transaction, that transaction is exempt from the pre-merger notification provisions and the Canadian Director is statutorily barred from challenging the merger solely on the basis of information that is the same or substantially the same as the information on the basis of which the advance ruling certificate was issued. Parent intends to cause a short-form notification to be filed with respect to the Offer and the Merger with the Canadian Director and, to the extent necessary, to observe any applicable waiting period. Cartel Act (Austria). Pursuant to certain provisions of the Austrian Cartel Act of 1988, as amended (the 'Cartel Act'), certain significant acquisition transactions require either pre-merger or post-merger notification to the Oberlandesgericht Wien als Kartellgericht (the 'Cartel Court'). Transactions subject to pre-merger or post-merger notification include acquisitions of shares of another company if, as a result, a 25% or 50% interest in such company is achieved or exceeded. Post-merger notification is required if the combined worldwide turnover ('turnover') of the parties involved was ATS 150 million in the last financial year. Pre-merger notification is required if the combined world-wide total turnover of the parties to the transaction was ATS 3.5 billion or more in the financial year immediately preceding the proposed merger and if at least two of the parties to the transaction achieved a turnover of ATS 5 million or more in the financial year immediately preceding the proposed merger. A notice of merger may be submitted to the Cartel Court upon the execution of the acquisition agreement. The transaction may be consummated after clearance by the Cartel Court. Upon receipt of the notice, the Cartel Court serves copies of the pre-merger notification filing to the Federal Chamber of Commerce, the Attorney General's Office, the Federal Chamber of Labour, and the Presidents' Conference of the Chambers of Agriculture (collectively, the 'Statutory Interveners'). Within four weeks of receipt of such filing, any of the Statutory Interveners may request an investigation of the transaction by the Cartel Court. A third party would only be entitled to file a petition with the Cartel Court if a merger subject to pre-notification was implemented without or prior to clearance by the Cartel Court. If no request by any Statutory Intervenors is made within the four-week period, the Cartel Court is obligated to issue a 'negative clearance,' which constitutes approval of the transaction. If a request for an investigation is made, the Cartel Court is obligated to review the competitive effects of the transaction. Pursuant to such an investigation, the Cartel Court may prohibit the consummation of the transaction. The Cartel Court is required to issue a prohibition order within five months of receipt of the pre-merger notification in order to prohibit consummation of the transaction. Parent intends to file any required notice with respect to the Offer and the Merger with the Cartel Court and, to the extent necessary, to observe any applicable waiting period. Federal Law on Economic Competition (Mexico). The Federal Law on Economic Competition requires notification to the Mexican Federal Competition Commission (the 'MFCC') regarding transactions that could be deemed a 'concentration' prior to the consummation of the transaction in question. Such notification is required for (a) any transaction or series of related transactions that exceed 12 million times the prevailing minimum wage for the Federal District of Mexico (approximately US $36,747,000 based on the U.S. dollar to Mexican peso exchange rate on May 22, 1996), (b) any transaction or series of related transactions that result in 36 the accumulation of 35% or more of the assets or shares of stock of an economic agent whose assets or sales exceed 12 million times the prevailing minimum wage for the Federal District of Mexico, or (c) any transaction that involves the participation of two or more economic agents whose assets or annual sales volume exceed, jointly or separately, 48 million times the prevailing minimum wage for the Federal District of Mexico (approximately US $146,990,000 based on the U.S. dollar to Mexican peso exchange rate on May 22, 1996), and such transaction results in an additional accumulation of assets or capital stock in excess of 4.8 million times such minimum wage (approximately US $14,699,000 based on the U.S. dollar to Mexican peso exchange rate on May 22, 1996). Once notification has been received, the MFCC is required to raise any objection within 45 calendar days from the date of notification or, as the case may be, from the date of filing of any additional information requested by the MFCC. If the 45-day period lapses without the MFCC raising any objection, the transaction will be deemed approved. Parent intends to file any required notice with respect to the Offer and the Merger with the MFCC and, to the extent necessary, to observe any applicable waiting period. Other Foreign Approvals. According to the 1995 Annual Report, the Company also owns property and conducts business in a number of other foreign countries and jurisdictions. In connection with the acquisition of the Shares pursuant to the Offer, the laws of certain of those foreign countries and jurisdictions may require the filing of information with, or the obtaining of the approval of, governmental authorities in such countries and jurisdictions. The governments in such countries and jurisdictions might attempt to impose additional conditions on the Company's operations conducted in such countries and jurisdictions as a result of the acquisition of the Shares pursuant to the Offer or the proposed Second-Step Merger. There can be no assurance that Parent or the Purchaser will be able to cause the Company or its subsidiaries to satisfy or comply with such laws or that compliance or noncompliance will not have adverse consequences for the Company or any subsidiary after purchase of the Shares pursuant to the Offer or the proposed Second-Step Merger. 16. FEES AND EXPENSES Lazard Freres is acting as Dealer Manager in connection with the Offer and has provided certain financial advisory services to Parent in connection with the proposed acquisition of the Company. Parent has agreed to pay Lazard Freres a fee of approximately $3.9 million, which became payable upon consummation of the transaction. The fee is based on a percentage of the aggregate consideration paid in connection with the Merger. The term 'aggregate consideration' is defined in the letter agreement between Lazard Freres and the Company to be an amount equal to the total amount of cash and the fair market value (on the date of payment) of all other property paid or payable by Parent to the Company or its Stockholders, including amounts paid or payable in respect of convertible securities, warrants, stock appreciation rights, options and other similar rights, plus the principal amount of all indebtedness for money borrowed as set forth in the consolidated balance sheet of the Company. In addition, Parent has agreed to reimburse Lazard Freres for all reasonable out-of-pocket expenses incurred by Lazard Freres in connection with the transaction, including the fees and reasonable expenses of counsel, and to indemnify Lazard Freres and certain related persons against certain losses, claims, damages, liabilities and expenses, including certain liabilities under the federal securities laws. Lazard Freres Asset Management, a division of Lazard Freres, holds Shares on behalf of clients and other accounts over which it may have discretionary authority. Purchaser has retained Georgeson & Company Inc. to act as the Information Agent, and The Chase Manhattan Bank (National Association) to act as the Depositary, in connection with the Offer. The Information Agent and the Depositary each will receive reasonable and customary compensation for their services, will be reimbursed for certain reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under the federal securities laws. Except as set forth above, Purchaser will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding the offering materials to their customers. 17. MISCELLANEOUS The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares who reside in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of the jurisdiction. However, Purchaser may, in its discretion, take such 37 action as it may deem necessary to make the Offer in any jurisdiction and to extend the Offer to holders of Shares in that jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers that are licensed under the laws of the jurisdiction. Purchaser has filed the Schedule 14D-1 with the Commission containing certain additional information with respect to the Offer pursuant to Rule 14d-1 under the Exchange Act. The Schedule and any amendments to the Schedule, including exhibits, may be examined and copies may be obtained from the principal office of the Commission in the manner set forth in Section 8 above (except that they will not be available at the regional offices of the Commission). NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION ON BEHALF OF THE PURCHASER THAT IS NOT CONTAINED IN THE OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, THE INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. GAC ACQUISITION I CORP. May 24, 1996 38 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER, GAC ACQUISITION II CORP., PARENT, GENERAL ELECTRIC CAPITAL SERVICES, INC. AND GENERAL ELECTRIC COMPANY A. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT The following table sets forth the name, present principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of Parent. Unless otherwise indicated below, the business address of each such person is 260 Long Ridge Road, Stamford, Connecticut 06927 and each such person is a citizen of the United States.
PRESENT PRINCIPAL OCCUPATION OR NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT BUSINESS ADDRESS HISTORY - --------------------------------------- --------------------------------------- Nigel D. T. Andrews(1) ................ Director; Executive Vice President of Parent and GE Capital Services (1993-present); Vice President and General Manager of GE Plastics America (1990-1993); Director of GE Capital Services. Nancy E. Barton ....................... Director; Senior Vice President, General Counsel of Parent and GE Capital Services (1995-present); Vice President and Senior Litigation Counsel (1991-1995); Partner, Weil, Gotshal & Manges LLP (1991). James R. Bunt ......................... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Dennis D. Dammerman ................... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Paolo Fresco(2) ....................... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Dale F. Frey .......................... Director. See Part E. General Electric Investment Corporation 3003 Sumner Street Stamford, CT 06904 Benjamin W. Heineman, Jr. ............. Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Hugh J. Murphy ........................ Director. See Part D. GE Power Generation Customer Service One River Road Schenectady, NY 12345 Denis J. Nayden ....................... Director; President and Chief Operating Officer of Parent and Executive Vice President of GE Capital Services; President and Chief Operating Officer, Kidder Peabody (1994-1995); Executive Vice President of Parent (1991-1994); Director of GE Capital Services.
- ------------------ 1. Mr. Andrews is a citizen of the United Kingdom. 2. Mr. Fresco is a citizen of Italy. I-1
PRESENT PRINCIPAL OCCUPATION OR NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT BUSINESS ADDRESS HISTORY - --------------------------------------- --------------------------------------- Michael A. Neal ....................... Director; Executive Vice President of Parent and GE Capital Services (1993-present); Vice President and General Manager of Commercial Equipment Financing (1991-1993); Director of GE Capital Services. James A. Parke ........................ Director; Senior Vice President, Finance of Parent and GE Capital Services (1989-present); Director of Montgomery Ward. John M. Samuels ....................... Director; Vice President and Senior General Electric Company Counsel, Taxes of GE (1991-present); 3135 Easton Turnpike Director of GE Capital Services. Fairfield, CT 06431 Edward D. Stewart ..................... Director; Executive Vice President of Parent and GE Capital Services (1992-present); Vice President and General Manager, GE Capital Auto Financial Services (1991-1992); Director of Manheim Auto Auctions, Stamford Hospital Foundation, Child Guidance Center of Stamford and INROADS of Fairfield-Westchester County, and GE Capital Services. John F. Welch, Jr. .................... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Gary C. Wendt ......................... Chairman and Chief Executive Officer of Parent and Chairman, President and Chief Executive Officer of GE Capital Services (1986-present); member of the National Board of Governors Boys & Girls Clubs of America; Trustee of the Boy's and Girl's Club of Stamford and past Campaign Chairman of its Capital Fund Campaign; a Trustee of Outward Bound USA; Chairman of The Regional Plan Association; Director and past Chairman of the Southwestern Area Commerce & Industry Association of Connecticut (SACIA); member of the Board of Governors for the United Way of Tri State. James A. Colica ....................... Senior Vice President, Risk Management & Credit Policy (1991-present). Michael D. Fraizer .................... Senior Vice President, Insurance/ General Electric Capital Corporation Investment Products; employee of 292 Long Ridge Road Parent since 1991. Stamford, CT 06927 Robert L. Lewis ....................... Senior Vice President, Finance of General Electric Capital Corporation Parent and President of GE Capital 1600 Summer Street, 6th Floor Transportation and Industrial Stamford, CT 06905 Financing; employed by Parent since 1973. Lawrence J. Toole ..................... Senior Vice President, Human Resources of Parent and GE Capital Services (1991-present). Jeffrey S. Werner ..................... Senior Vice President, Corporate General Electric Capital Corporation Treasury and Global Funding Operation 777 Long Ridge Road of Parent and GE Capital Services Stamford, CT 06927 (1992-present); Vice President and Treasurer (1988-1992).
I-2 B. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER The following table sets forth the name, present principal occupation or employment and material occupation, positions, offices or employment for the past five years of each director and executive officer of Purchaser. The business address of each such person is 6875 Jimmy Carter Boulevard, Suite 3200, Norcross, Georgia 30071, and each such person is a citizen of the United States.
PRESENT PRINCIPAL OCCUPATION OR NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT BUSINESS ADDRESS HISTORY - --------------------------------------- --------------------------------------- Michael S. Ford........................ Director and President of Purchaser and GAC II (May 1996-present); President and Chief Executive Officer of GE Capital Technology Management Services (1994-present); President and Chief Executive Officer of GE Capital Computer Leasing (1990-1994). David J. Lidstone...................... Director, Vice President and Secretary of Purchaser and GAC II (May 1996-present); Senior Vice President and General Counsel, GE Capital Technology Management Services (1994-1996); Vice President and General Counsel, GE Capital Computer Leasing (1991-1994). D. Michael Upton....................... Director, Vice President and Treasurer of Purchaser and GAC II (May 1996- present); Senior Vice President, Business Developments, GE Capital Technology Management Services (1993-present); Manager, GE Rental/ Lease Operations (1991-1993).
C. DIRECTORS AND EXECUTIVE OFFICERS OF GAC ACQUISITION II CORP. The following table sets forth the name, present principal occupation or employment and material occupation, positions, offices or employment for the past five years of each director and executive officer of GAC II. The business address of each such person is 6875 Jimmy Carter Boulevard, Suite 3200, Norcross, Georgia 30071, and each such person is a citizen of the United States.
PRESENT PRINCIPAL OCCUPATION OR NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT BUSINESS ADDRESS HISTORY - --------------------------------------- --------------------------------------- Michael S. Ford........................ Director and President (May 1996- present). See Part B. David J. Lidstone...................... Director, Vice President and Secretary (May 1996-present). See Part B. D. Michael Upton....................... Director, Vice President and Treasurer (May 1996-present). See Part B.
I-3 D. DIRECTORS AND EXECUTIVE OFFICERS OF GENERAL ELECTRIC CAPITAL SERVICES, INC. The following table sets forth the name, present principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of General Electric Capital Services, Inc. Unless otherwise indicated below, the business address of each such person is 260 Long Ridge Road, Stamford, Connecticut 06927 and each such person is a citizen of the United States.
NAME AND PRESENT PRINCIPAL OCCUPATION OR BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY - ------------------------- -------------------------------------------------- Kaj Ahlmann(1) .......... Director; Chairman, President and Chief Executive Employers Reinsurance Officer, Employers Reinsurance Corporation Corp. (1993-present); Chief Operating Officer, Employers 5200 Metcalf Reinsurance International Company (1992-1993); Overland Park, KS 66201 Managing Director, Nordisk Reinsurance Company (1988-1992). Nigel D. T. Andrews(1) .. Director; Executive Vice President of Parent and GE Capital Services (1993-present); Vice President and General Manager of GE Plastics America (1990-1993); Director of Parent. James R. Bunt ........... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Dennis D. Dammerman ..... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Paolo Fresco(2) ......... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Dale F. Frey ............ Director. See Part E. General Electric Investment Corporation 3003 Summer Street Stamford, CT 06904 Benjamin W. Heineman, Jr. Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Hugh J. Murphy .......... Director; Senior Vice President, GE Power GE Power Generation Generation Customer Service (1991-present); Customer Service Director of Parent. One River Road Schenectady, NY 12345 Denis J. Nayden.......... Director; Executive Vice President. See Part A. Michael A. Neal.......... Director; Executive Vice President. See Part A. John M. Samuels ......... Director. See Part A. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Edward D. Stewart........ Director; Executive Vice President. See Part A. John F. Welch, Jr. ...... Director. See Part E. General Electric Company 3135 Easton Turnpike Fairfield, CT 06431 Gary C. Wendt............ Chairman, President and Chief Executive Officer. See Part A.
- ------------------ (1) Mr. Ahlmann is a citizen of Denmark. (2) Mr. Fresco is a citizen of Italy. I-4
NAME AND PRESENT PRINCIPAL OCCUPATION OR BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY - ------------------------- -------------------------------------------------- Nancy E. Barton.......... Senior Vice President and General Counsel, Parent and GE Capital Services (1995-present); Vice President and Senior Litigation Counsel, Parent (1991-1995); Partner, Weil, Gotshal & Manges LLP (1991); Director of Parent. James A. Parke........... Senior Vice President, Finance. See Part A. Lawrence J. Toole........ Senior Vice President, Human Resources. See Part A. Jeffrey S. Werner ....... Senior Vice President, Corporate Treasury and GE Capital Corporation Global Funding Operation. See Part A. 777 Long Ridge Road Stamford, CT 06927
E. DIRECTORS AND EXECUTIVE OFFICERS OF GE The following table sets forth the name, present principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of GE. Unless otherwise indicated below, the business address of each such person is 3135 Easton Turnpike, Fairfield, Connecticut 06431 and each such person is a citizen of the United States.
NAME AND PRESENT PRINCIPAL OCCUPATION OR BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY - ------------------------- -------------------------------------------------- D. Wayne Calloway ....... Chairman of the Board, and Director, PepsiCo, PepsiCo, Inc. Inc., Beverages, Snack Foods and Restaurants, 700 Anderson Hill Road Purchase, N.Y. Director since 1991. A graduate Purchase, NY 10577 of Wake Forest University, Mr. Calloway joined PepsiCo in 1967, became president and chief operating officer of Frito-Lay, Inc. in 1976 and chairman of the board and chief executive officer of Frito-Lay in 1978. Mr. Calloway became executive vice president, chief financial officer and director of PepsiCo in 1983, president and chief operating officer in 1985 and chairman and chief executive officer in 1986. Mr. Calloway was Chief Executive Officer of PepsiCo from 1986 to 1996. He is a director of Citicorp and Exxon, chairman of Grocery Manufacturers of America, and a member of the Business Council and the Business Roundtable. He is also a trustee of the Wake Forest University. Silas S. Cathcart ....... Director and retired Chairman of the Board, 222 Wisconsin Avenue Illinois Tool Works, Inc., Diversified Products, Suite 103 Chicago, Ill. Director 1972-1987 and since 1990. Lake Forest, IL 60045 Following his graduation from Princeton in 1943, Mr. Cathcart joined Illinois Tool Works, Inc., a manufacturer of tools, fasteners, packaging and other products. He was named a vice president in 1954, executive vice president in 1962, president and director in 1964, and served as chairman from 1972 to 1986. From 1987 to 1989, he served as chairman of the board of Kidder, Peabody Group Inc. Mr. Cathcart is a director of Baxter International, Inc., Montgomery Ward & Co., Inc. and Quaker Oats Company. He is also on the board of the Chicago Botanic Garden and is a trustee of the Buffalo Bill Historical Society. Dennis D. Dammerman ..... Senior Vice President, Finance, and Chief Financial Officer, General Electric Company. Director since 1994. Mr. Dammerman joined GE after graduating from the University of Dubuque in 1967. He had financial assignments in several GE businesses before being named vice president and comptroller of General Electric Credit Corporation (now General Electric Capital Corporation) in 1979. In 1981, he became vice president and general manager of GE Capital's Commercial Financial Services Department and, later that year, of GE Capital's Real Estate Financial Services Division. In 1984, he was elected senior vice president for finance and became an executive officer of GE. Paolo Fresco(1) ......... Vice Chairman of the Board and Executive Officer, General Electric Company General Electric Company. Director since 1990. Mr. (U.S.A) Fresco received a law degree from the University 3 Shortlands, Hammersmith of Genoa. After practicing law in Rome, he London W6 8BX, England joined GE's Italian subsidiary, Compagnia Generale di Elettricita (COGENEL), in 1962 as corporate counsel, becoming president and general manager of that
- ------------------ (1) Mr. Fresco is a citizen of Italy. I-5
NAME AND PRESENT PRINCIPAL OCCUPATION OR BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY - ------------------------- -------------------------------------------------- company in 1972. In 1976, he joined GE's International Group and was elected a vice president in 1977. Mr. Fresco became vice president and general manager--Europe and Africa Operations in 1979, and in 1985 was named vice president and general manager--International Operations. In 1987, he was elected senior vice president--GE International. He became a member of the Board in 1990, and was elected vice chairman of the Board and executive officer in 1992. Claudio X. Gonzalez(2) .. Chairman of the Board and Chief Executive Officer, Kimberly-Clark de Mexico, Kimberly-Clark de Mexico, S.A. de C.V., Mexico S.A. de C.V. City, and Director, Kimberly-Clark Corporation, Jose Luis Lagrange 103, Consumer and Paper Products. Director since Tercero Piso 1993. Mr. Gonzalez is a graduate of Stanford Colonia Los Morales University. He was employed by Kimberly-Clark in Mexico, D.F. 11510, 1956 and by Kimberly-Clark de Mexico, S.A. in Mexico 1957. He was elected vice president of operations of Kimberly-Clark de Mexico, S.A. in 1962 and executive vice president and managing director in 1966. He assumed his present position in 1973. Mr. Gonzalez is a director of Kellogg Company, The Mexico Fund, Inc., Banco Nacional de Mexico, Grupo Industrial ALFA, Grupo Industrial Saltillo, Grupo Carso, Synkro and Telefonos de Mexico. Robert E. Mercer ........ Retired Chairman of the Board and former Director, The Goodyear Tire & Rubber Company, Akron, Ohio. Director since 1984. A graduate of Yale University, Mr. Mercer joined Goodyear in 1947. He became president of the Kelly-Springfield Tire Company subsidiary in 1974 and was elected an executive vice president of Goodyear in 1976. Mr. Mercer was elected president of Goodyear in 1978, president and chief operating officer in 1981, vice chairman and chief executive officer in 1982, and served as chairman and chief executive officer from 1983 to 1989. He is also chairman of the board of Roadway Express, Inc. Gertrude G. Michelson ... Former Senior Vice President--External Affairs and 151 West 34th Street former Director, R. H. Macy & Co., Inc., New York, NY 10001 Retailers, New York, N.Y. Director since 1976. Mrs. Michelson received a BA degree from Pennsylvania State University in 1945 and an LLB degree from Columbia University in 1947, at which time she joined Macy's--New York. Mrs. Michelson was elected a vice president in 1963, senior vice president in 1979, and was named senior vice president--external affairs in 1980. She served as senior advisor to R. H. Macy & Co., Inc. from 1992 to 1994. She is also a director of The Chubb Corporation, The Goodyear Tire & Rubber Company and Stanley Works. Mrs. Michelson is chairman emeritus of the Board of Trustees of Columbia University and a governor of the American Stock Exchange. John D. Opie ............ Vice Chairman of the Board and Executive Officer, General Electric Company. Director since 1995. Mr. Opie joined GE after graduating from Michigan College of Mining and Technology with a BS degree in 1961. He has held key leadership positions in several GE materials and electrical products businesses. He was named vice president of the Lexan Products Division in 1980, vice president of the Specialty Plastics Division in 1982, vice president of the Construction Equipment Business Operations in 1983, and senior vice president and head of General Electric Lighting in 1986. He was elected vice chairman of the Board and executive officer in 1995. Roger S. Penske ......... Chairman of the Board, President and Director, Penske Corporation Penske Corporation and Detroit Diesel Corporation, 13400 Outer Drive, West Transportation and Automotive Services, Detroit, Detroit, MI 48239-4001 Mich. Director since 1994. A 1959 graduate of Lehigh (Pa.) University, Mr. Penske became president of Penske Corporation in 1969. He became chief executive officer of Detroit Diesel Corporation in 1988. Mr. Penske is also a director of Philip Morris Companies Inc. He serves as a trustee of the Henry Ford Museum and Greenfield Village and as a director of Detroit Renaissance.
- ------------------ (2) Mr. Gonzalez is a citizen of Mexico. I-6
NAME AND PRESENT PRINCIPAL OCCUPATION OR BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY - ------------------------- -------------------------------------------------- Barbara Scott Preiskel .. Former Senior Vice President, Motion Picture Suite 3125 Associations of America, New York, NY. Director 60 East 42nd Street since 1982. Mrs. Preiskel graduated from New York, NY 10165 Wellesley College and Yale Law School. She joined the Motion Picture Associations of America in 1959 as deputy attorney and served as senior vice president and general counsel from 1977 to 1983. Mrs. Preiskel is a trustee of Wellesley College and Tougaloo College, and is the chairman of the New York Community Trust. She is a director of American Stores Company, Massachusetts Mutual Life Insurance Company, Textron Inc. and the Washington Post Company. Frank H.T. Rhodes ....... President Emeritus, Cornell University, Ithaca, Cornell University N.Y. Director since 1984. An English-born 3104 Snee Building naturalized U.S. citizen, Dr. Rhodes holds Ithaca, NY 14853 bachelor of science, doctor of philosophy and doctor of science degrees from the University of Birmingham (U.K.). He served as president of Cornell University from 1977 to 1995. Dr. Rhodes is a director of Tompkins County Trust Company. He is a trustee of the Mellon Foundation and the Committee for Economic Development. He was appointed by President Reagan as a member of the National Science Board, of which he is chairman, and by President Bush as a member of the President's Education Policy Advisory Committee. Andrew C. Sigler ........ Chairman of the Board, Chief Executive Officer and Champion International Director, Champion International Corporation, Corporation Paper and Forest Products, Stamford, Conn. 1 Champion Plaza Director since 1984. A graduate of Dartmouth Stamford, CT 06921 College with an MBA degree from its Amos Tuck School of Business Administration, Mr. Sigler joined Champion Papers Inc., a predecessor of Champion International, in 1956. He because executive vice president of Champion International in 1972, a director in 1973, president and chief executive officer in 1974, and chairman in 1979. Mr. Sigler is also a director of AlliedSignal, Inc., Bristol-Myers Squibb Company and Chemical Banking Corporation, and is a member of the Board of Trustees of Dartmouth College. He is a member of the Business Roundtable and the Business Council and is active in various civic organizations. Douglas A. Warner III ... Chairman of the Board, President, Chief Executive J.P. Morgan & Co., Inc. & Officer and Director, J.P. Morgan & Co. Morgan Guaranty Trust Co. Incorporated and Morgan Guaranty Trust Company, 60 Wall Street New York, N.Y. Director since 1992. Following New York, NY 10260 graduation from Yale University in 1968, Mr. Warner joined Morgan Guaranty Trust Company, a wholly owned subsidiary of J.P. Morgan & Co. Incorporated. He was named a senior vice president of the bank in 1985, executive vice president in 1987, executive vice president of the parent in 1989, and managing director of the bank and its parent in 1989. He was elected president and director of the bank and its parent in 1990 and became chairman and chief executive officer in 1995. Mr. Warner is also a director of Anheuser-Busch Companies, Inc., a member of the Board of Managers and the Board of Overseers of the Memorial Sloan-Kettering Cancer Center, a trustee of Cold Spring Harbor Laboratory and a trustee of the Pierpont Morgan Library. John F. Welch, Jr. ...... Chairman of the Board and Chief Executive Officer, General Electric Company. Director since 1980. A 1957 graduate of the University of Massachusetts with MS and PhD degrees from the University of Illinois, Mr. Welch joined GE in 1960. Following managerial assignments in the plastics and chemical and metallurgical businesses, he was elected a vice president in 1972. In 1973, he was named vice president and group executive of the Components and Materials Group. He became a senior vice president and sector executive of the Consumer Products and Services Sector in 1977 and was elected a vice chairman and named an executive officer in 1979. Mr. Welch was elected chairman and named chief executive officer in 1981. Philip D. Ameen ......... Vice President and Comptroller of GE; executive of GE for the last five years. James R. Bunt ........... Vice President and Treasurer; executive of GE for the last five years; Director of Parent and GE Capital Services.
I-7
NAME AND PRESENT PRINCIPAL OCCUPATION OR BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY - ------------------------- -------------------------------------------------- David L. Calhoun ........ Vice President, GE Transportation Systems; General Electric Company executive of GE for the last five years. 2901 East Lake Road Erie, PA 16531 William J. Conaty ....... Senior Vice President--Human Resources; executive of GE for the last five years. Lewis S. Edelheit ....... Senior Vice President--Corporate Research and General Electric Company Development (1992-present). Manager of Electronic P.O. Box 8 Systems Research Center (1991-1992). Schenectady, NY 12301 Dale F. Frey ............ Vice President and Chairman; President, General General Electric Company Electric Investment Corporation; executive of GE 3003 Sumner Street for the last five years; Director of Parent and Stamford, CT 06905 GE Capital Services. Benjamin W. Heineman, Jr. Senior Vice President, General Counsel and Secretary; executive of GE for the last five years; Director of Parent and GE Capital Services. W. James McNerney, Jr. .. Senior Vice President, GE Lighting; executive of General Electric Company GE for the last five years. Nela Park Cleveland, OH 44122 Eugene F. Murphy ........ Senior Vice President, GE Aircraft Engines; General Electric Company executive of GE for the last five years. 1 Newmann Way Cincinnati, OH 05215 Robert L. Nardelli ...... Senior Vice President, GE Power Systems; executive General Electric Company of GE since 1992. President of Camco (1991-1992). 1 River Road Schenectady, NY 12345 Robert W. Nelson ........ Vice President, Corporate Financial Planning and Analysis; executive of GE for the last five years. Gary M. Reiner .......... Senior Vice President, Chief Information Officer; executive of GE for the last five years. Gary L. Rogers .......... Senior Vice President, GE Plastics; executive of General Electric Company GE for the last five years. 1 Plastics Avenue Pittsfield, MA 01201 James W. Rogers ......... Vice President, GE Motors; executive of GE for the General Electric Company last five years. 1635 Broadway Fort Wayne, IN 46801 J. Richard Stonesifer ... Senior Vice President, GE Appliances; executive of General Electric Company GE for the last five years. Appliance Park Louisville, KY 40225 John M. Trani ........... Senior Vice President, GE Medical Systems; General Electric Company executive of GE for the last five years. P.O. Box 414 Milwaukee, WI 53201 Lloyd G. Trotter ........ Vice President, GE Electrical Distribution and General Electric Company Control; executive of GE for the last five years. 41 Woodford Avenue Plainville, CT 06062
I-8 Facsimile copies of the Letter of Transmittal, properly completed and duly signed, will be accepted. The Letter of Transmittal, certificates for Shares and any other required documents should be sent or delivered by each stockholder of the Company or his broker, dealer, commercial bank, trust company or other nominee to the Depository, at one of the addresses set forth below: The Depositary for the Offer is: THE CHASE MANHATTAN BANK (National Association) By Mail: By Overnight Delivery: By Hand: Box 3032 c/o Chase Securities (9.00 a.m.--5:00 p.m. 4 Chase MetroTech Center Processing Corp. New York City Time) Brooklyn, NY 11245 Fort Lee Executive Park 1 Chase Manhattan Plaza 1 Executive Drive Floor 1-B (6th floor) Nassau and Liberty Fort Lee, NJ 07024 Streets By Facsimile Transmission New York, NY 10081 (201) 592-4372 Information and Confirm by Telephone (201) 592-4370 Questions and requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers listed below. Additional copies of this Offer to Purchase, the Letter of Transmittal and other tender offer materials may be obtained from the Information Agent as set forth below and will be furnished promptly at Purchaser's expense. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: GEORGESON & COMPANY INC. WALL STREET PLAZA NEW YORK, NEW YORK 10005 TOLL-FREE (800) 223-2064 BROKERS AND BANKS, PLEASE CALL COLLECT (212) 440-9800 THE DEALER MANAGER FOR THE OFFER IS: LAZARD FRERES & CO. LLC 30 ROCKEFELLER PLAZA NEW YORK, NEW YORK 10020 (CALL COLLECT) 212-632-6717 EX-99.(A)(2) 3 LETTER OF TRANSMITTAL LETTER OF TRANSMITTAL TO TENDER SHARES OF COMMON STOCK OF AMERIDATA TECHNOLOGIES, INC. PURSUANT TO THE OFFER TO PURCHASE DATED MAY 24, 1996 BY GAC ACQUISITION I CORP. AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF GENERAL ELECTRIC CAPITAL CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED. The Depositary for the Offer is: THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) By Mail: By Overnight Delivery: By Hand: Box 3032 c/o Chase Securities (9:00 a.m.-5:00 p.m. 4 Chase MetroTech Center Processing Corp. New York City Time) Brooklyn, NY 11245 Fort Lee Executive Park 1 Chase Manhattan Plaza 1 Executive Drive (6th Floor) Floor 1-B Fort Lee, NJ 07024 Nassau and Liberty Streets By Facsimile Transmission New York, NY 10081 (201) 592-4372 Information and Confirmation by Telephone (201) 592-4370
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. This Letter of Transmittal is to be completed by holders of Shares (as defined below) of AmeriData Technologies, Inc. (the 'Stockholders') if certificates evidencing Shares ('Certificates') are to be forwarded with this Letter of Transmittal or if delivery of Shares is to be made by book-entry transfer to an account maintained by The Chase Manhattan Bank (National Association) (the 'Depositary') at The Depository Trust Company ('DTC'), the Midwest Securities Trust Company ('MSTC') or the Philadelphia Depository Trust Company ('PDTC') (each a 'Book-Entry Transfer Facility') pursuant to the procedures set forth in Section 3 of the Offer to Purchase (as defined below). Stockholders whose Certificates are not immediately available or who cannot deliver either their Certificates for, or a Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to, their Shares and all other required documents to the Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase) may tender their Shares according to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. See Instruction 2 hereof. Delivery of documents to a Book-Entry Transfer Facility does not constitute delivery to the Depositary. / / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY, AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER). Name of Tendering Institution: ____________________________________________ Check Box of Book-Entry Transfer Facility: / / DTC / / MSTC / / PDTC Account Number: ___________________________________________________________ Transaction Code Number: __________________________________________________ / / CHECK HERE IF 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 Registered Holder(s): __________________________________________ Window Ticket Number (if any): ____________________________________________ Date of Execution of Notice of Guaranteed Delivery: _______________________ Name of Institution that Guaranteed Delivery: _____________________________ If delivered by book-entry transfer, check box of applicable Book-Entry Transfer Facility: / / DTC / / MSTC / / PDTC Account Number: ___________________________________________________________ Transaction Code Number: __________________________________________________
DESCRIPTION OF SHARES TENDERED Name(s) and Address(es) of Registered Holder(s) Share Number of Shares Number of (Please fill in, if blank, exactly as name(s) Certificates Represented by Shares appear(s) on the Certificate(s)) Number(s)(1) Certificate(s)(1) Tendered(2) - ------------------------------------------------------------------------------------------------------------------------------ ------------- ----------------- ------------ ------------- ----------------- ------------ ------------- ----------------- ------------ ------------- ----------------- ------------ ------------- ----------------- ------------ ------------- ----------------- ------------ Total Shares - ------------------------------------------------------------------------------------------------------------------------------
(1) Need not be completed by Stockholders delivering Shares by Book-Entry Transfer. (2) Unless otherwise indicated, it will be assumed that all Shares represented by Certificates delivered to the Depositary are being tendered. See Instruction 4. NOTE: SIGNATURE(S) MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. Ladies and Gentlemen: The undersigned hereby tenders to GAC Acquisition I Corp., a Delaware corporation ('Purchaser'), and an indirect wholly-owned subsidiary of General Electric Capital Corporation, a New York corporation ('Parent'), the above-described shares of common stock, $.01 par value (the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation (the 'Company'), for $16.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 24, 1996 (the 'Offer to Purchase'), receipt of which is hereby acknowledged, and in this Letter of Transmittal (which together constitute the 'Offer'). The undersigned understands that Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to any newly formed direct or indirect wholly-owned subsidiary of Purchaser, the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment will not relieve Purchaser of its obligations under the Offer or prejudice the rights of tendering Stockholders to receive payment for Shares validly tendered and accepted for payment pursuant to the Offer. Subject to, and effective upon, acceptance for payment of, or payment for, Shares tendered with this Letter of Transmittal in accordance with the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms or conditions of any such extension or amendment), the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser all right, title and interest in and to all of the Shares that are being tendered hereby and any and all other Shares or other securities issued or issuable in respect of such Shares on or after May 24, 1996 (a 'Distribution') and irrevocably constitutes and appoints the Depositary as the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares (and any Distributions), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (i) deliver Certificates evidencing such Shares (and any Distributions), or transfer ownership of such Shares (and all Distributions) on the account books maintained by a Book-Entry Transfer Facility together, in any such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, Purchaser, upon receipt by the Depositary as the undersigned's agent, of the purchase price with respect to such Shares; (ii) present such Shares (and any Distributions) for transfer on the books of the Company; and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any Distributions), all in accordance with the terms and subject to the conditions of the Offer. The undersigned hereby irrevocably appoints each designee of Purchaser as the attorney-in-fact and proxy of the undersigned, each with full power of substitution, to the full extent of the undersigned's rights with respect to all Shares tendered hereby and accepted for payment and paid for by Purchaser (and any Distributions) including, without limitation, the right to vote such Shares (and any Distributions) in such manner as each such attorney and proxy or his substitute shall, in his sole discretion, deem proper. All such powers of attorney and proxies, being deemed to be irrevocable, shall be considered coupled with an interest in the Shares tendered with this Letter of Transmittal. Such appointment will be effective when, and only to the extent that, Purchaser accepts such Shares for payment. Upon such acceptance for payment, all prior powers of attorney and proxies given by the undersigned with respect to such Shares (and any Distributions) will be revoked, without further action, and no subsequent powers of attorneys and proxies may be given with respect thereto (and, if given, will be deemed ineffective). The designees of Purchaser will, with respect to the Shares (and any Distributions) for which such appointment is effective, be empowered to exercise all voting and other rights of the undersigned with respect to such Shares (and any Distributions) as they in their sole discretion may deem proper. Purchaser reserves the absolute right to require that, in order for Shares to be deemed validly tendered, immediately upon the acceptance for payment of such Shares, Purchaser or its designees are able to exercise full voting rights with respect to such Shares (and any Distributions), including voting at any meeting of Stockholders then scheduled. All authority conferred or agreed to be conferred by this Letter of Transmittal shall be binding upon the successors, assigns, heirs, executors, administrators and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares tendered hereby (and any Distributions) and that, when the same are accepted for payment and paid for by Purchaser, Purchaser will acquire good, marketable and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances, and that the Shares tendered hereby (and any Distributions) will not be subject to any adverse claim. The undersigned, upon request, will 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 Shares tendered hereby (and any Distributions). In addition, the undersigned shall promptly remit and transfer to the Depositary for the account of Purchaser any and all Distributions issued to the undersigned on or after May 24, 1996 in respect of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and pending such remittance and transfer or appropriate assurance thereof, Purchaser shall be entitled to all rights and privileges as owner of any such Distributions and may withhold the entire purchase price or deduct from the purchase price the amount of value thereof, as determined by Purchaser in its sole discretion. The undersigned understands that the valid tender of Shares pursuant to any one of the procedures described in Section 3 of the Offer to Purchase and in the instructions to this Letter of Transmittal will constitute a binding agreement between the undersigned and Purchaser with respect to such Shares, upon the terms and subject to the conditions of the Offer. The undersigned recognizes that, under certain circumstances set forth in the Offer to Purchase, Purchaser may not be required to accept for payment any of the Shares tendered hereby. Unless otherwise indicated in this Letter of Transmittal under 'Special Payment Instructions,' please issue the check for the purchase price and return any Certificates evidencing Shares not tendered or not accepted for payment in the name(s) of the registered holder(s) appearing under 'Description of Shares Tendered.' Similarly, unless otherwise indicated under 'Special Delivery Instructions,' please mail the check for the purchase price and return any Certificates evidencing Shares not tendered or not accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under 'Description of Shares Tendered.' In the event that both the 'Special Payment Instructions' and the 'Special Delivery Instructions' are completed, please issue the check for the purchase price and return any such Certificates evidencing Shares not tendered or not accepted for payment (and accompanying documents, as appropriate) in the name(s) of, and deliver such check and return such Certificates (and accompanying documents, as appropriate) to, the person(s) so indicated. Unless otherwise indicated in this Letter of Transmittal under 'Special Payment Instructions,' in the case of a book-entry delivery of Shares, please credit the account maintained at the Book-Entry Facility indicated above with respect to any Shares not accepted for payment. 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 if Purchaser does not accept for payment any of the Shares tendered hereby. / / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11. Number of Shares represented by the lost or destroyed Certificates: _____________________________________ SPECIAL PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) TO BE COMPLETED ONLY IF CERTIFICATES FOR SHARES NOT TENDERED OR NOT ACCEPTED FOR PAYMENT AND/OR THE CHECK FOR THE PURCHASE PRICE OF SHARES ACCEPTED FOR PAYMENT ARE TO BE ISSUED IN THE NAME OF SOMEONE OTHER THAN THE UNDERSIGNED, OR IF SHARES DELIVERED BY BOOK-ENTRY TRANSFER THAT ARE NOT ACCEPTED FOR PAYMENT ARE TO BE RETURNED BY CREDIT TO AN ACCOUNT MAINTAINED AT A BOOK-ENTRY TRANSFER FACILITY, OTHER THAN TO THE ACCOUNT INDICATED ABOVE. Issue Check/Certificate(s) to: Name: ---------------------------------------------------- (Please type or Print) Address: ------------------------------------------------- - --------------------------------------------------------- (Include Zip Code) - --------------------------------------------------------- (Tax Identification or Social Security No.) (See Substitute Form W-9) Credit unpurchased Shares delivered by book-entry transfer to the Book-Entry Transfer Facility account set forth below: / / DTC / / MSTC / / PDTC (Check One) - --------------------------------------------------------- (DTC/MSTC/PDTC Account Number) SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) TO BE COMPLETED ONLY IF CERTIFICATES FOR SHARES NOT TENDERED OR NOT ACCEPTED FOR PAYMENT AND THE CHECK FOR THE PURCHASE PRICE OF SHARES ACCEPTED FOR PAYMENT ARE TO BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED OR TO THE UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE. Mail Check/Certificate(s) to: Name: ---------------------------------------------------- (Please type or Print) Address: ------------------------------------------------- - ---------------------------------------------------------- (Include Zip Code) - ---------------------------------------------------------- (Tax Identification or Social Security No.) INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, no signature guarantee is required on this Letter of Transmittal (a) if this Letter of Transmittal is signed by the registered holder(s) (which term, for the purposes of this document, includes any participant in any of the Book-Entry Facilities' systems whose name appears on a security position listing as the owner of the Shares) of Shares tendered herewith and such registered holder has not completed either the box entitled 'Special Delivery Instructions' or the box entitled 'Special Payment Instructions' on this Letter of Transmittal or (b) if such Shares are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (an 'Eligible Institution'). In all other cases, all signatures on the Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5. If the Certificates are registered in the name of a person other than the signer of this Letter of Transmittal, or if payment is to be made or delivered to, or Certificates evidencing unpurchased Shares are to be issued or returned to, a person other than the registered owner, then the tendered Certificates must be endorsed or accompanied by duly executed stock powers, in either case signed exactly as the name or names of the registered owner or owners appear on the Certificates, with the signatures on the Certificates or stock powers guaranteed by an Eligible Institution as provided in this Letter of Transmittal. See Instruction 5. 2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by Stockholders if Certificates evidencing Shares are to be forwarded with this Letter of Transmittal or if delivery of Shares is to be made pursuant to the procedures for book-entry transfer set forth in Section 3 of the Offer to Purchase. For a Stockholder to validly tender Shares pursuant to the Offer, either (a) a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile), with any required signature guarantees and any other required documents, must be received by the Depositary at one of its addresses set forth in this Letter of Transmittal on or prior to the Expiration Date (as defined in the Offer to Purchase) and either (i) Certificates for tendered Shares must be received by the Depositary at one of those addresses on or prior to the Expiration Date or (ii) Shares must be delivered pursuant to the procedures for book-entry transfer set forth in Section 3 of the Offer to Purchase and a Book-Entry Confirmation must be received by the Depositary on or prior to the Expiration Date or (b) the tendering Stockholder must comply with the guaranteed delivery procedures set forth below and in Section 3 of the Offer to Purchase. Stockholders whose Certificates are not immediately available or who cannot deliver their Certificates and all other required documents to the Depositary or complete the procedures for book-entry transfer on or prior to the Expiration Date may tender their Shares by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) 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 made available by Purchaser, must be received by the Depositary prior to the Expiration Date, and (iii) Certificates representing all tendered Shares in proper form for transfer, or a Book-Entry Confirmation with respect to all the tendered Shares, together with a Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any required signature guarantees or an Agent's Message (as defined in Section 2 of the Offer to Purchase) in connection with a book-entry transfer and any other documents required by this Letter of Transmittal, must be received by the Depositary within three New York Stock Exchange, Inc. trading days after the date of such Notice of Guaranteed Delivery. If Certificates are forwarded separately to the Depositary, a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile) must accompany each delivery. THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING STOCKHOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted and no fractional Shares will be purchased. All tendering Stockholders, by execution of this Letter of Transmittal (or a facsimile thereof), waive any right to receive any notice of the acceptance of their Shares for payment. 3. INADEQUATE SPACE. If the space provided in this Letter of Transmittal is inadequate, the information required under 'Description of Shares Tendered' should be listed on a separate signed schedule attached to this Letter of Transmittal. 4. PARTIAL TENDERS. If fewer than all of the Shares represented by any Certificates delivered to the Depositary with this Letter of Transmittal are to be tendered, fill in the number of Shares that are to be tendered in the box entitled 'Number of Shares Tendered.' In such cases, a new Certificate for the remainder of the Shares that were evidenced by your old Certificate(s) will be sent, without expense, to the person(s) signing this Letter of Transmittal, unless otherwise provided in the box entitled 'Special Payment Instructions' or the box entitled 'Special Delivery Instructions' on this Letter of Transmittal, as soon as practicable after the Expiration Date. All Shares represented by Certificate(s) delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. SIGNATURES ON LETTER OF TRANSMITTAL, INSTRUMENTS OF TRANSFER AND ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the Certificate(s) without alteration, enlargement or any change whatsoever. If any of the Shares tendered hereby are owned of record by two or more joint owners, all the owners must sign this Letter of Transmittal. If any of the tendered Shares are registered in different names on several 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 or any Certificates or instruments of transfer are signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, that person should so indicate when signing, and proper evidence satisfactory to Purchaser of that person's authority to so act must be submitted. If this Letter of Transmittal is signed by the registered holder(s) of the Shares listed and transmitted hereby, no endorsements of Certificates or separate instruments of transfer are required unless payment is to be made, or Certificates not tendered or not purchased are to be issued or returned, to a person other than the registered holder(s). Signatures on the Certificates or instruments of transfer 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 evidenced by the Certificate(s) listed and transmitted hereby, the Certificate(s) must be endorsed or accompanied by appropriate instruments of transfer, in either case signed exactly as the name(s) of the registered holder(s) appear on the Certificate(s). Signatures on the Certificate(s) or instruments of transfer must be guaranteed by an Eligible Institution. 6. TRANSFER TAXES. Except as set forth in this Instruction 6, Purchaser will pay or cause to be paid any transfer taxes with respect to the transfer and sale of Shares to it or its order pursuant to the Offer. If, however, payment of the purchase price is to be made to, or (in the circumstances permitted hereby) if Certificates for Shares not tendered or not purchased are to be registered in the name of, any person other than the registered holder(s), or if tendered Certificates are registered in the name of any person other than the person(s) signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the registered holder(s) or such person) payable on account of the transfer to such person will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted. Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Certificate(s) listed in this Letter of Transmittal. 7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check and Certificates for unpurchased Shares are to be issued in the name of a person other than the signer of this Letter of Transmittal or if a check is to be sent and Certificates are to be returned to someone other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. If any tendered Shares are not purchased for any reason and the Shares are delivered by Book-Entry Transfer Facility, the Shares will be credited to an account maintained at the appropriate Book-Entry Transfer Facility. 8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for assistance may be directed to the Information Agent (as defined below) at its address or telephone number set forth below and requests for additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be directed to the Information Agent or brokers, dealers, commercial banks and trust companies and such materials will be furnished at Purchaser's expense. 9. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by Purchaser (subject to certain limitations in the Merger Agreement (as defined in the Offer to Purchase)), in whole or in part, at any time or from time to time, in Purchaser's sole discretion. 10. BACKUP WITHHOLDING TAX. Each tendering Stockholder is required to provide the Depositary with a correct Taxpayer Identification Number ('TIN') on Substitute Form W-9, which is provided under 'Important Tax Information' below and to certify that the Stockholder is not subject to backup withholding. Failure to provide the information on the Substitute Form W-9 may subject the tendering Stockholder to a penalty and 31% backup federal income tax withholding on the payment of the purchase price for the Shares. If the tendering Stockholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future, the tendering Stockholder should check the box in Part III of the Substitute Form W-9 and sign and date both the Substitute Form W-9 and the 'Certificate of Awaiting Taxpayer Identification.' If the Stockholder has indicated in the box in Part III that a TIN has been applied for and the Depositary is not provided with a TIN by the time of payment, the Depositary will withhold 31% of all payments of the purchase price, if any, made thereafter pursuant to the Offer until a TIN is provided to the Depositary. 11. LOST OR DESTROYED CERTIFICATES. If any Certificate(s) representing Shares has been lost, destroyed or stolen, the Stockholder should promptly notify the Depositary by checking the box immediately preceding the special payment/special delivery instructions and indicating the number of Shares lost. The Stockholders will then be instructed as to the steps that must be taken in order to replace the Certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost or destroyed Certificates have been followed. IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE THEREOF (TOGETHER WITH CERTIFICATES OR A BOOK-ENTRY CONFIRMATION FOR SHARES AND ANY OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE DEPOSITARY, OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY, ON OR PRIOR TO THE EXPIRATION DATE. IMPORTANT TAX INFORMATION Under current federal income tax law, a Stockholder whose tendered Shares are accepted for payment is required to provide the Depositary (as payer) with such Stockholder's correct TIN on Substitute Form W-9 below. If such Stockholder is an individual, the TIN is his Social Security Number. If the tendering Stockholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future, the Stockholder should so indicate on the Substitute Form W-9. See Instruction 10. If the Depositary is not provided with the correct TIN, the Stockholder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, payments that are made to the Stockholder with respect to Shares purchased pursuant to the Offer may be subject to backup federal income tax withholding at a 31% rate. Certain Stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements and should indicate their status by writing 'exempt' across the face of, and by signing and dating, the Substitute Form W-9. In order for a foreign individual to qualify as an exempt recipient, that Stockholder must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Forms for such statements can be obtained from the Depositary. See the enclosed Guidelines for Certificates of Taxpayer Identification Number on Substitute Form W-9 for additional instructions. If backup withholding applies, the Depositary is required to withhold 31% of any payments made to the Stockholder. Backup withholding is not an additional tax. Rather, the federal income tax liability of persons 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 from the Internal Revenue Service. PURPOSE OF SUBSTITUTE FORM W-9 To prevent backup federal income tax withholding with respect to payment of the purchase price for Shares purchased pursuant to the Offer, a Stockholder must provide the Depositary with his correct TIN by completing the Substitute Form W-9 below, certifying that the TIN provided on Substitute Form W-9 is correct (or that the Stockholder is awaiting a TIN) and that (1) the Stockholder has not been notified by the Internal Revenue Service that he is subject to backup withholding as a result of failure to report all interest or dividends or (2) the Internal Revenue Service has notified the Stockholder that he is no longer subject to backup withholding. WHAT NUMBER TO GIVE THE DEPOSITARY The Stockholder is required to give the Depositary the Social Security Number or employer identification number of the record holder of the Shares tendered hereby. If the Shares are registered in more than one name or are not in the name of the actual owner, consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional guidance on which number to report. IMPORTANT STOCKHOLDER: SIGN HERE AND COMPLETE SUBSTITUTE FORM W-9 ON REVERSE --) (-- - -------------------------------------------------------------------------------- (Signature(s) of Stockholder(s)) --) (-- - -------------------------------------------------------------------------------- (Signature(s) of Stockholder(s)) Dated: ______________, 1996 (Must be signed by the registered holder(s) exactly as name(s) appear(s) on the Certificate 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 trustees, executors, administrators, guardians, attorneys-in-fact, agents, officers or corporations or others acting in a fiduciary or representative capacity, please provide the following information. See Instruction 5.) Name(s): ------------------------------------------------------------------------ - -------------------------------------------------------------------------------- (Please Type or Print) Capacity (Full Title): ---------------------------------------------------------- (See Instruction 5) Address: ------------------------------------------------------------------------ - -------------------------------------------------------------------------------- (Include Zip Code) Daytime Area Code and Telephone Number: ----------------------------------------- (Home) - -------------------------------------------------------------------------------- (Business) Taxpayer Identification or Social Security No.: --------------------------------- (See Substitute Form W-9 on Reverse Side) GUARANTEE OF SIGNATURE(S) (SEE INSTRUCTIONS 1 AND 5) - -------------------------------------------------------------------------------- (Authorized Signature(s)) - -------------------------------------------------------------------------------- (Name) - -------------------------------------------------------------------------------- (Name of Firm) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Address Including Zip Code) - -------------------------------------------------------------------------------- (Area Code and Telephone Number) Dated: ______________, 1996 PAYER'S NAME: THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) SUBSTITUTE FORM W-9 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER (TIN) PART I -- PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. PART II -- For Payees exempt from backup withholding, see the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 and complete as instructed therein. PART III -- Social Security Number OR Employer Identification Number - ------------------------------------- (If awaiting TIN write 'Applied for') Certifications--Under penalties of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me); and (2) I am not subject to backup withholding either because I have not been notified by the Internal Revenue Service ('IRS') that I am subject to backup withholding as a result of a failure to report all interest or dividends, or the IRS has notified me that I am no longer subject to backup withholding. Certification Instructions--You must cross out item (2) above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you are subject to backup withholding, you receive another notification from the IRS that you were no longer subject to backup withholding, do not cross out item (2). (Also see instructions in the enclosed guidelines). SIGNATURE DATE -------------------------------------- ----------------------- NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER TO PURCHASE. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE 'APPLIED FOR' IN THE BOX IN PART III OF THE SUBSTITUTE FORM W-9. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a Taxpayer Identification Number has not been issued to me, and either (1) I have mailed or delivered an application to receive a Taxpayer Identification Number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a Taxpayer Identification Number by the time of payment, 31% of all payments of the purchase price pursuant to the Offer made to me thereafter will be withheld until I provide a number. Signature Date -------------------------------------- ----------------------- The Information Agent for the Offer is: GEORGESON & COMPANY INC. ------------- Wall Street Plaza New York, New York 10005 Call Toll-Free (800) 223-2064 Banks and Brokers, please call collect (212) 440-9800 The Dealer Manager for the Offer is: LAZARD FRERES & CO. LLC 30 Rockefeller Plaza New York, New York 10020 (212) 632-6717 (Call Collect) May 24, 1996 EX-99.(A)(3) 4 NOTICE OF GUARANTEED DELIVERY NOTICE OF GUARANTEED DELIVERY FOR TENDER OF SHARES OF COMMON STOCK OF AMERIDATA TECHNOLOGIES, INC. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED. This Notice of Guaranteed Delivery or a notice substantially equivalent hereto must be used to accept the Offer (as defined below) if certificates representing the common stock, $.01 par value (the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation, are not immediately available or the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach The Chase Manhattan Bank (National Association) (the 'Depositary') prior to the Expiration Date (as defined in the Offer to Purchase). This Notice of Guaranteed Delivery may be delivered by hand or transmitted by facsimile transmission or mail to the Depositary. See Section 3 of the Offer to Purchase. The Depositary for the Offer is: THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) By Mail: By Overnight Delivery: By Hand: Box 3032 c/o Chase Securities (9:00 a.m.--5:00 p.m. 4 Chase MetroTech Center Processing Corp. New York City Time) Brooklyn, NY 11245 Fort Lee Executive Park 1 Chase Manhattan Plaza 1 Executive Drive (6th Floor) Floor 1-B Fort Lee, NJ 07024 Nassau and Liberty Streets By Facsimile Transmission New York, NY 10081 (201) 592-4372 Information and Confirmation by Telephone (201) 592-4370
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. 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' under the instructions thereto, such signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal. The Eligible Institution that completes this form must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal and certificates for Shares to the Depositary within the time period shown herein. Failure to do so could result in a financial loss to the Eligible Institution. THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED Ladies and Gentlemen: The undersigned hereby tenders to GAC Acquisition I Corp., a Delaware corporation ('Purchaser') and an indirect wholly-owned subsidiary of General Electric Capital Corporation, a New York corporation ('Parent'), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 24, 1996 (the 'Offer to Purchase'), and in the related Letter of Transmittal (which together constitute the 'Offer'), receipt of each of which is hereby acknowledged, the number of Shares indicated below pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Number of Shares: ______________________________________________________________ Certificate Nos. (if available): _______________________________________________ ________________________________________________________________________________ Check ONE box if Shares will be tendered by book-entry transfer: / / The Depository Trust Company / / Midwest Securities Trust Company / / Philadelphia Depository Trust Company Account Number: ________________________________________________________________ Date: ____________________________________________________________________, 1996 Name(s) of Record Holder(s): ___________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Please Type or Print) Address(es): ___________________________________________________________________ ________________________________________________________________________________ (Zip Code) Area Code and Tel. No.: ________________________________________________________ Signature(s): __________________________________________________________________ ________________________________________________________________________________ THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, an Eligible Institution (as such term is defined in Section 3 of the Offer to Purchase), hereby guarantees to deliver to the Depositary the certificates representing the Shares tendered hereby, in proper form for transfer, or a Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to such Shares, in either case together with a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof), with any required signature guarantees or an Agent's Message (as defined in Section 2 of the Offer to Purchase) in connection with a book-entry transfer, and any other documents required by the Letter of Transmittal, all within three New York Stock Exchange, Inc. trading days after the date hereof. Name of Firm: __________________________________________________________________ Address: _______________________________________________________________________ ________________________________________________________________________________ (Zip Code) Area Code and Tel. No.: ________________________________________________________ ________________________________________________________________________________ (Authorized Signature) Name: __________________________________________________________________________ (Please Type or Print) Title: _________________________________________________________________________ Date: __________________________________________________________________________ NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED DELIVERY. CERTIFICATES FOR SHARES SHOULD ONLY BE SENT TOGETHER WITH EX-99.(A)(4) 5 LETTER TO BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES AND OTHER NOMINEES LAZARD FRERES & CO. LLC 30 ROCKEFELLER PLAZA NEW YORK, NEW YORK 10020 OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF AMERIDATA TECHNOLOGIES, INC. AT $16 NET PER SHARE BY GAC ACQUISITION I CORP. AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF GENERAL ELECTRIC CAPITAL CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED. May 24, 1996 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been engaged by GAC Acquisition I Corp., a Delaware corporation and an indirect wholly-owned subsidiary of General Electric Capital Corporation ('Purchaser'), to act as Dealer Manager in connection with Purchaser's offer to purchase for cash all of the outstanding shares of common stock, $.01 par value (the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation (the 'Company'), for $16 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 24, 1996 (the 'Offer to Purchase'), and in the related Letter of Transmittal (which, together with the Offer to Purchase, constitute the 'Offer') enclosed. Please furnish copies of the enclosed materials to those of your clients for whose accounts you hold Shares in your name or in the name of your nominee. Enclosed herewith for your information and forwarding to your clients are copies of the following documents: 1. The Offer to Purchase, dated May 24, 1996. 2. The Letter of Transmittal to tender Shares for your use and for the information of your clients. Facsimile copies of the Letter of Transmittal may be used to tender Shares. 3. A letter to stockholders of the Company from Gerald A. Poch, Co-Chairman and Co-President of the Company, together with a Solicitation/Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission by the Company and mailed to stockholders of the Company. 4. The Notice of Guaranteed Delivery for Shares to be used to accept the Offer if neither of the two procedures for tendering Shares set forth in the Offer to Purchase can be completed on a timely basis. 5. A printed form of letter that 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 regarding the Offer. 6. Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9. 7. A return envelope addressed to The Chase Manhattan Bank (National Association), the Depositary. YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED. Please note the following: 1. The tender price is $16 per Share, net to the seller in cash. 2. The Offer is subject to there being validly tendered and not properly withdrawn prior to the Expiration Date (as defined in the Offer to Purchase) a majority of the outstanding Shares (on a fully diluted basis) and certain other conditions. See the Introduction and Sections 1 and 14 of the Offer to Purchase. 3. The Offer is being made for all of the outstanding Shares. 4. Tendering stockholders will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. However, backup federal income tax withholding at a rate of 31% may be required, unless an exemption applies or unless the required taxpayer identification information is provided. See Instruction 10 of the Letter of Transmittal. 5. The Offer and withdrawal rights will expire at 12:00 midnight, New York City time, on Friday, June 21, 1996, unless the Offer is extended. 6. The board of directors of the Company has unanimously determined that the Offer and the Merger (as defined in the Offer to Purchase) are fair to, and in the best interests of, the Company and its stockholders; has approved the Merger Agreement (as defined in the Offer to Purchase), the Stockholders Agreement (as defined in the Offer to Purchase) and the transactions contemplated by the Merger Agreement and the Stockholders Agreement, including the Offer and the Merger; and recommends that the Company's stockholders accept the Offer and tender all of their Shares pursuant thereto. 7. Notwithstanding any other provision of the Offer, payment for Shares accepted for payment pursuant to the Offer will in all cases be made only after timely receipt by the Depositary of (a) certificates for (or a timely Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to) such Shares, (b) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed with any required signature guarantees or an Agent's Message (as defined in the Offer to Purchase) in connection with a book-entry transfer, and (c) any other documents required by the Letter of Transmittal. Accordingly, payment to all tendering stockholders may not be made at the same time depending upon when certificates for Shares or Book-Entry Confirmation with respect to Shares are actually received by the Depositary. In order to take advantage of the Offer, (a) a duly executed and properly completed Letter of Transmittal (or a manually signed facsimile thereof) and any required signature guarantees or other required documents should be sent to the Depositary and (b) certificates representing the tendered Shares or a timely Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to such Shares should be delivered to the Depositary in accordance with the instructions set forth in the Letter of Transmittal and in the Offer to Purchase. If holders of Shares wish to tender, but it is impracticable for them to forward their certificates or other required documents or complete the procedures for book-entry transfer prior to the Expiration Date (as defined in the Offer to Purchase), a tender may be effected by following the guaranteed delivery procedures specified in Section 3 of the Offer to Purchase. Neither Purchaser nor Parent will pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer (other than the Dealer Manager, the Depositary and the 2 Information Agent as described in the Offer to Purchase). Purchaser will, however, upon request, reimburse you for customary mailing and handling expenses incurred by you in forwarding any of the enclosed materials to your clients. Purchaser will pay or cause to be paid any transfer taxes payable on the transfer of Shares to it, except as otherwise provided in Instruction 6 of the Letter of Transmittal. Any inquiries you may have with respect to the Offer should be addressed to Lazard Freres & Co. LLC, the Dealer Manager for the Offer, at 30 Rockefeller Plaza, New York, New York 10020, (212) 632-6717 or Georgeson & Company Inc., the Information Agent for the Offer, at Wall Street Plaza, New York, New York 10005, (212) 440-9800. Requests for copies of the enclosed materials may also be directed to the Dealer Manager or the Information Agent at the above addresses and telephone numbers. Very truly yours, LAZARD FRERES & CO. LLC NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON THE AGENT OF PURCHASER, THE COMPANY, THE DEALER MANAGER, THE DEPOSITARY, THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN. 3 EX-99.(A)(5) 6 LETTER TO CLIENTS FOR USE BY BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES AND OTHER NOMINEES OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF AMERIDATA TECHNOLOGIES, INC. AT $16 NET PER SHARE BY GAC ACQUISITION I CORP. AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF GENERAL ELECTRIC CAPITAL CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED. May 24, 1996 To Our Clients: Enclosed for your consideration are the Offer to Purchase, dated May 24, 1996 (the 'Offer to Purchase'), and the related Letter of Transmittal (which together constitute the 'Offer') relating to the offer by GAC Acquisition I Corp., a Delaware corporation ('Purchaser') and an indirect wholly-owned subsidiary of General Electric Capital Corporation, a New York corporation ('Parent'), to purchase all of the outstanding shares of common stock, $.01 par value (the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation (the 'Company'), at a purchase price of $16 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer. Holders of Shares whose certificates for such Shares are not immediately available or who cannot deliver their certificates and all other required documents to the depositary (the 'Depositary') or complete the procedures for book-entry transfer prior to the Expiration Date (as defined in the Offer to Purchase) must tender their Shares according to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US 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 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. Accordingly, we request instruction as to whether you wish to have us tender, on your behalf, any or all Shares held by us for your account pursuant to the terms and conditions set forth in the Offer. Please note the following: 1. The tender price is $16 per Share, net to the seller in cash. 2. The Offer is subject to there being validly tendered and not properly withdrawn prior to the Expiration Date a majority of the outstanding Shares (on a fully diluted basis) and certain other conditions. See the Introduction and Sections 1, 14 and 15 of the Offer to Purchase. 3. The Offer is being made for all of the outstanding Shares. 4. Tendering stockholders will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. However, backup federal income tax withholding at a rate of 31% may be required, unless an exemption applies or unless the required taxpayer identification information is provided. See Instruction 10 of the Letter of Transmittal. 5. The Offer and withdrawal rights will expire at 12:00 midnight, New York City time, on Friday, June 21, 1996, unless the Offer is extended. 6. The board of directors of the Company has unanimously determined that the Offer and the Merger (as defined in the Offer to Purchase) are fair to, and in the best interests of, the Company and its stockholders; has approved the Merger Agreement (as defined in the Offer to Purchase), the Stockholders Agreement (as defined in the Offer to Purchase) and the transactions contemplated by the Merger Agreement and the Stockholders Agreement, including the Offer and the Merger; and recommends that the Company's stockholders accept the Offer and tender all of their Shares pursuant thereto. 7. Notwithstanding any other provision of the Offer, payment for Shares accepted for payment pursuant to the Offer will in all cases be made only after timely receipt by the Depositary of (a) certificates for (or a timely Book-Entry Confirmation (as defined in Section 3 to the Offer to Purchase) with respect to) such Shares, (b) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed with any required signature guarantees or an Agent's Message (as defined in the Offer to Purchase) in connection with a book-entry transfer, and (c) any other documents required by the Letter of Transmittal. Accordingly, payment to all tendering stockholders may not be made at the same time depending upon when certificates for Shares or Book-Entry Confirmation with respect to Shares are actually received by the Depositary. If you wish to have us tender any or all of the Shares held by us for your account, please so instruct us by completing, executing, detaching and returning to us the instruction form set forth below. If you authorize the tender of your Shares, all such Shares will be tendered unless otherwise specified below. An envelope to return your instructions to us is enclosed herewith. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf prior to the expiration of the Offer. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares residing in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. However, Purchaser may, in its discretion, take such action as it may deem necessary to make the Offer to holders of Shares in such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers that are licensed under the laws of such jurisdiction. INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF AMERIDATA TECHNOLOGIES, INC. The undersigned acknowledge(s) receipt of your letter, the enclosed Offer to Purchase, dated May 24, 1996, and the related Letter of Transmittal (which together constitute the 'Offer') in connection with the offer by GAC Acquisition I Corp., a Delaware corporation ('Purchaser') and an indirect wholly-owned subsidiary of General Electric Capital Corporation, to purchase all outstanding shares of common stock, par value $.01 per share ('Shares'), of AmeriData Technologies, Inc., a Delaware corporation. This will instruct you to tender to Purchaser the number of Shares indicated below (or if no number is indicated below, all Shares) which are held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer. Number of Shares to be Tendered*: ______________________________________________ Date: __________________________________________________________________________ ________________________________________________________________________________ SIGN HERE Signature(s): __________________________________________________________________ (Print Name(s)): _______________________________________________________________ (Print Address(es)): ___________________________________________________________ (Area Code and Telephone Number(s)): ___________________________________________ (Taxpayer Identification or Social Security Number(s)): ________________________ * Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. EX-99.(A)(6) 7 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer. - -------------------------------------------------------------------------------- GIVE THE SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - -------------------------------------------------------------------------------- 1. An individual's account The individual 2. Two or more individuals The actual owner of the account or, (joint account) if combined funds, any one of the individuals(1) 3. Husband and wife The actual owner of the account or, (joint account) if joint funds, either person(1) 4. Custodian account of a minor (Uniform The minor(2) Gift to Minors Act) 5. Adult and minor The adult or, if the minor is the (joint account) only contributor, the minor(1) 6. Account in the name of guardian or The ward, minor, or incompetent committee for a designated ward, person(3) minor, or incompetent person 7. a. The usual revocable savings trust The grantor-trustee(1) account (grantor is also trustee) b. So-called trust account that is The actual owner(1) not a legal or valid trust under State law 8. Sole proprietorship account The owner(4) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- GIVE THE EMPLOYER IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - -------------------------------------------------------------------------------- 9. A valid trust, estate, or pension The legal entity (Do not furnish the trust identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)(5) 10. Corporate account The corporation 11. Association, club, religious, The organization charitable, educational or other tax-exempt organization account 12. Partnership account The partnership 13. A broker or registered nominee The broker or nominee 14. Account with the Department of The public entity Agriculture in the name of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments - -------------------------------------------------------------------------------- (1) List first and circle the name of the person whose number you furnish. (2) Circle the minor's name and furnish the minor's social security number. (3) Circle the ward's, minor's or incompetent person's name and furnish such person's social security number. (4) You must show your individual name, but you may also enter your business or "doing business as" name. You may use your social security number or employer identification number. (5) List first and circle the name of the legal trust, estate, or pension trust. NOTE: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 OBTAINING A NUMBER If you don't have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on ALL payments include the following: o A corporation. o A financial institution. o An organization exempt from tax under section 501(a), or an individual retirement plan. o The United States or any agency or instrumentality thereof. o A State, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof. o A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. o An international organization or any agency, or instrumentality thereof. o A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. o A real estate investment trust. o A common trust fund operated by a bank under section 584(a). o An exempt charitable remainder trust, or a nonexempt trust described in section 4947(a)(1). o An entity registered at all times under the Investment Company Act of 1940. o A foreign central bank of issue. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: o Payments to nonresident aliens subject to withholding under section 1441. o Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. o Payments of patronage dividends where the amount received is not paid in money. o Payments made by certain foreign organizations. o Payments made to a nominee. Payments of interest not generally subject to backup withholding include the following: o Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. o Payments of tax-exempt interest (including exempt-interest dividends under section 852). o Payments described in section 6049(b)(5) to non-resident aliens. o Payments on tax-free covenant bonds under section 1451. o Payments made by certain foreign organizations. o Payments made to a nominee. Exempt payees described above should file Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE 'EXEMPT' ON THE FACE OF THE FORM IN PART II, SIGN AND DATE THE FORM, AND RETURN IT TO THE PAYER. Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under sections 6041, 6041(a), 6045, and 6050A. PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend, interest, or other payments to give taxpayer identification numbers to payers who must report the payments to IRS. IRS uses the numbers for identification purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail to furnish your taxpayer identification number to a payer, 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. (2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to include any portion of an includible payment for interest, dividends, or patronage dividends in gross income and such failure is due to negligence, a penalty of 20% is imposed on any portion of an under-payment attributable to that failure. (3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.-- Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-99.(A)(7) 8 FORM OF SUMMARY ADVERTISEMENT, DATED MAY 24, 1996 This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares. The Offer is made solely by the Offer to Purchase, dated May 24, 1996, and the related Letter of Transmittal and any amendments or supplements thereto, and is being made to all holders of Shares. 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 the acceptance thereof would not be in compliance with the laws of such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of GAC Acquisition I Corp., by Lazard Freres & Co. LLC or one or more registered brokers or dealers licensed under the laws of such jurisdiction. Notice of Offer to Purchase for Cash All Outstanding Shares of Common Stock of AmeriData Technologies, Inc. at $16 Net Per Share by GAC Acquisition I Corp. an indirect wholly-owned subsidiary of General Electric Capital Corporation GAC Acquisition I Corp., a Delaware corporation ("Purchaser") and an indirect wholly-owned subsidiary of General Electric Capital Corporation, a New York corporation ("Parent"), is offering to purchase all outstanding shares of common stock, $.01 par value (the "Shares"), of AmeriData Technologies, Inc., a Delaware corporation (the "Company"), at a price of $16 per Share (the "Offer Price"), net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 24, 1996, and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). Tendering stockholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The purpose of the Offer is to acquire for cash as many outstanding Shares as possible as a first step in acquiring the entire equity interest in the Company. Following consummation of the Offer, Purchaser intends to effect the merger described below. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED. The Offer is conditioned upon, among other things, (1) a number of the Shares representing a majority of all outstanding Shares on a fully diluted basis being validly tendered and not withdrawn prior to the expiration of the Offer, (2) Preferred Securities (as defined in the Offer to Purchase) outstanding on May 20, 1996 having an aggregate liquidation preference of more than 50% of the aggregate liquidation preference of all Preferred Securities outstanding on May 20, 1996 having been converted by the holders thereof into Shares prior to the expiration of the Offer and (3) the receipt of certain regulatory consents and approvals. The Offer is being made pursuant to an Agreement and Plan of Merger, dated May 20, 1996 (the "Merger Agreement"), among Parent, Purchaser and the Company. The Merger Agreement provides, among other things, for the commencement of the Offer by Purchaser and further provides that after the purchase of Shares pursuant to the Offer, subject to the satisfaction or waiver of certain conditions, Purchaser will be merged with and into the Company (the "Merger"), with the Company surviving the Merger as an indirect wholly-owned subsidiary of Parent. At the effective time of the Merger, each outstanding Share (other than Shares owned by the Company or any wholly-owned subsidiary of the Company or by Parent, Purchaser or any other wholly-owned subsidiary of Parent, and Shares owned by stockholders who shall have properly exercised their appraisal rights under Delaware law) will be converted into the right to receive $16 in cash or any greater amount paid pursuant to the Offer, without interest. Concurrently with the execution of the Merger Agreement, Parent and Purchaser entered into a Stockholders Agreement, dated May 20, 1996 (the "Stockholders Agreement"), with certain stockholders of the Company (the "Selling Stockholders"), pursuant to which such Selling Stockholders have agreed to validly tender (and not to withdraw) in the Offer Shares beneficially owned by such Selling Stockholders representing, in the aggregate, approximately 8% of the Company's outstanding Shares (assuming the exercise of all such Selling Stockholders' options subject to the Stockholders Agreement). The Board of Directors of the Company (the "Board") has unanimously determined that the Offer and the Merger are fair to, and in the best interests of, the Company and its stockholders, has approved the Merger Agreement, the Stockholders Agreement and the transactions contemplated by the Merger Agreement and the Stockholders Agreement, including the Offer and the Merger, and recommends that the Company's stockholders accept the Offer and tender all of their Shares pursuant thereto. For purposes of the Offer, Purchaser will be deemed to have accepted for payment (and thereby purchased) tendered Shares as, if and when Purchaser gives oral or written notice to The Chase Manhattan Bank (National Association) (the "Depositary") of its acceptance of such Shares for payment pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares purchased pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary, which will act as agent for tendering stockholders for the purposes of receiving payment from Purchaser and transmitting payment to tendering stockholders whose Shares have theretofore been accepted for payment. In all cases, payment for Shares purchased pursuant to the Offer will be made only after timely receipt by the Depositary of (i) certificates for (or a timely Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to) such Shares and (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed with all required signature guarantees or an agent's message, and (iii) all other documents required by the Letter of Transmittal. Under no circumstances will interest be paid on the purchase price for Shares to be paid by Purchaser, regardless of any delay in making such payment. The term "Expiration Date" shall mean 12:00 midnight, New York City time, on Friday, June 21, 1996, unless and until Purchaser, in accordance with the terms of the Offer and the Merger Agreement, shall have extended the period of time during which the Offer is open, in which event the term "Expiration Date" shall mean the latest time and date at which the Offer, as so extended by Purchaser, shall expire. Subject to the terms of the Merger Agreement and applicable law, Purchaser expressly reserves the right, at any time or from time to time, to extend the period of time during which the Offer is open and thereby delay acceptance for payment of, or payment for, any Shares by giving oral or written notice of such extension to the Depositary and by making a public announcement of such extension. Purchaser shall not have any obligation to pay interest on the purchase price for tendered Shares whether or not Purchaser exercises its right to extend the period of time during which the Offer is open. Any such extension will be followed by a public announcement thereof by no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. During any such extension, all Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of a tendering stockholder to withdraw such stockholder's Shares. Without limiting the manner in which Purchaser may choose to make any public announcement, Purchaser will have no obligation to publish, advertise or otherwise communicate any such announcement other than by issuing a release to the Dow Jones News Service or as otherwise may be required by law. Except as otherwise provided in the Offer to Purchase, tenders of Shares are irrevocable. Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date and, unless theretofore accepted for payment by Purchaser as provided for in the Offer to Purchase, may also be withdrawn at any time after Monday, July 22, 1996. For a withdrawal to be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Depositary at its address set forth on the back cover of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder, if different from that of the person who tendered such Shares. If certificates evidencing Shares have been delivered or otherwise identified to the Depositary, then, prior to the release of such certificates, the tendering stockholder must also submit the serial numbers shown on the particular certificates evidencing the Shares to be withdrawn, and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution, as defined in Section 3 of the Offer to Purchase (except in the case of Shares tendered for the account of an Eligible Institution). If Shares have been tendered pursuant to the procedure for book-entry transfer set forth in Section 3 of the Offer to Purchase, the notice of withdrawal must specify the name and number of the account at the applicable Book-Entry Transfer Facility (as defined in Section 3 of the Offer to Purchase) to be credited with the withdrawn Shares. All questions as to the form and validity (including time of receipt) of notices of withdrawal will be determined by Purchaser, in its sole discretion, whose determination shall be final and binding on all parties. Any Shares properly withdrawn will be deemed not validly tendered for purposes of the Offer, but may be tendered at any subsequent time prior to the Expiration Date by following any of the procedures described in Section 3 of the Offer to Purchase. The Company has provided Purchaser with the Company's stockholder list and security position listings for the purpose of disseminating the Offer to holders of Shares. The Offer to Purchase, the related Letter of Transmittal and, if required, any other relevant materials will be mailed to record holders of Shares and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the name of whose nominees, appear on the Company's stockholders list or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of Shares by Purchaser. The information required to be disclosed by paragraph (e)(1)(vii) 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 which should be read carefully before any decision is made with respect to the Offer. Requests for copies of the Offer to Purchase, the Letter of Transmittal and other tender offer documents may be directed to the Information Agent as set forth below, and copies will be furnished promptly at Purchaser's expense. Questions or requests for assistance may be directed to the Information Agent or the Dealer Manager. Neither Purchaser nor Parent will pay any fees or commissions to any broker or dealer or other person (other than the Dealer Manager, the Depositary and the Information Agent) in connection with the solicitation of tenders of Shares pursuant to the Offer. The Information Agent for the Offer is: [LOGO] GEORGESON & COMPANY INC. Wall Street Plaza New York, New York 10005 (212) 509-6240 (collect) Banks and Brokers call collect (212) 440-9800 Call Toll Free: 1-800-223-2064 The Dealer Manager for the Offer is: LAZARD FRERES & CO. LLC 30 Rockefeller Plaza New York, New York 10020 (212) 632-6717 (call collect) May 24, 1996 EX-99.(A)(8) 9 JOINT PRESS RELEASE, DATED MAY 20, 1996, BY PARENT AND THE COMPANY EXHIBIT 99.(a)(8) [GE LOGO] GE Capital Services - ------------------------------------------------------------------------------- General Electric Capital Services 260 Long Ridge Road, Stamford, CT 06927 Contact: GE Capital Services Mary Home Office: 203-357-6978 David Elliott Office: 404-249-8550 AmeriData Technologies Inc. Jean Gleason Office: 203-357-1464 FOR IMMEDIATE RELEASE GE CAPITAL SERVICES AGREES TO ACQUIRE AMERIDATA TECHNOLOGIES, INC. STAMFORD, CT, May 20, 1996 -- GE Capital Services (GECS) and AmeriData Technologies, Inc. (NYSE:ADA) jointly announced today the signing of a definitive merger agreement pursuant to which GECS will acquire all of the outstanding common stock of AmeriData at $16 per share or approximately $490 million. The purchase price represents a premium of approximately 40% over the average trading price of the last 60 days. To implement the agreement, GECS will commence a cash tender offer within five business days. The completion of the tender offer is subject to a number of customary conditions, including the acquisition of a majority of AmeriData's outstanding common stock on a fully diluted basis, receipt of regulatory approvals and the expiration of the waiting periods under the Hart-Scott-Rodino Act. Management shareholders owning approximately 6% of the outstanding shares of AmeriData have entered into binding agreements to tender their shares. Shares not purchased under the tender offer will be acquired in a subsequent merger at the same price as soon as practicable after completion of the tender offer. AmeriData, with 1995 revenues of more than US $1.5 billion and more than 3600 employees worldwide, is an international provider of distributed computer products and services, as well as business and technology consulting services. AmeriData was recently ranked #1 by Computerworld Magazine for customer satisfaction among corporate information technology users. AmeriData further announced that it has adjourned its Annual Meeting of Stockholders which has been previously scheduled for Tuesday, May 21, 1996. "The addition of AmeriData to GE Capital is another step in broadening the range of services provided by our equipment management businesses in this fast growing, high tech services market," explained Gary Wendt, chairman, president and CEO of GE Capital Services. "We continue to build value for our information technology (IT) customers by providing an ever increasing range of services on a global basis." AmeriData will become a subsidiary of GE Capital Technology Management Services (TMS), one of GE Capital Services' equipment management businesses. GE Capital TMS' strengths in the information technology services market include procurement, logistics, asset tracking, help desk, network and data center outsourcing services. GE Capital TMS is now the largest desktop systems integrator in Canada, providing hardware, software, networking products and support services. It is also a leading computer rental and leasing company in North America, supporting desktop and mobile IT users. "GE Capital TMS can now provide its customers in North America with a comprehensive range of services that are unmatched in the industry," said Mike Ford, president and CEO of GE Capital TMS. "Moreover, we can offer customers consistent IT services on an increasingly global basis." In April, GE Capital TMS acquired Ferntree Computer Corporation, the leading desktop services integrator in Australia. "The acquisition by a company with the financial strength of GE Capital Services provides us with the ability to deliver stronger and more complete information technology solutions to our customers," noted Gerald A. Poch, co-chairman and co-president of AmeriData. GE Capital Technology Management Services, headquartered in Norcross, GA, is a GE Capital Services company that provides full life cycle services to help customers more cost-effectively control and manage their technology investments. GE Capital Services, a wholly owned subsidiary of General Electric Company, is a diversified financial services company headquartered in Stamford, CT. GE Capital Services' activities include equipment management, mid-market financing, specialized financing, specialty insurance and consumer service. General Electric Company is a diversified manufacturing, technology and services company with operations worldwide. ### EX-99.(C)(1) 10 AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER among GENERAL ELECTRIC CAPITAL CORPORATION GAC ACQUISITION I CORP. and AMERIDATA TECHNOLOGIES, INC. dated May 20, 1996 TABLE OF CONTENTS Section Page ------- ---- ARTICLE I THE OFFER 1.1 The Offer.......................................... 2 1.2 Offer Documents.................................... 2 1.3 Company Actions.................................... 3 1.4 Directors.......................................... 4 ARTICLE II THE MERGER 2.1 The Merger......................................... 5 2.2 Closing............................................ 5 2.3 Effective Time of the Merger....................... 5 2.4 Effects of the Merger.............................. 6 ARTICLE III EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES 3.1 Effect on Capital Stock............................ 6 (a) Capital Stock of Sub......................... 6 (b) Cancellation of Treasury Stock and Parent-Owned Stock........................... 6 3.2 Conversion of Securities........................... 7 3.3 Payment for Shares................................. 7 (a) Paying Agent................................. 7 (b) Payment Procedures........................... 8 (c) Termination of Payment Fund; Interest........ 9 (d) No Liability................................. 9 (e) Withholding Rights........................... 9 3.4 Stock Transfer Books............................... 9 3.5 Options, Warrants and Other Purchase Rights........ 9 3.6 Dissenting Shares.................................. 11 ARTICLE IV REPRESENTATIONS AND WARRANTIES 4.1 Representations and Warranties of the Company...... 12 (a) Organization, Standing and Power............. 12 (b) Capital Structure............................ 12 (c) Authority; No Violations; Consents and Approvals..................... 15 (d) SEC Documents; Financial Statements.......... 17 (e) Information Supplied......................... 17 i (f) Compliance with Applicable Laws.............. 18 (g) Litigation................................... 18 (h) Taxes........................................ 19 (i) Pension And Benefit Plans; ERISA............. 20 (j) Absence of Certain Changes or Events......... 23 (k) No Undisclosed Material Liabilities.......... 24 (l) Opinion of Financial Advisor................. 24 (m) Vote Required................................ 24 (n) Labor Matters................................ 25 (o) Intangible Property.......................... 26 (p) Environmental Matters........................ 27 (q) Real Property; Other Assets.................. 30 (r) Insurance.................................... 31 (s) Material Contracts........................... 31 (t) Related Party Transactions................... 33 (u) Liens........................................ 33 (v) Brokerage Fees and Commissions; Other Fees... 34 (w) No Excess Parachute Payments................. 34 (x) State Takeover Statutes...................... 34 (y) Pending and Proposed Transactions............ 34 (z) Media Interests.............................. 34 4.2 Representations and Warranties of Parent and Sub... 35 (a) Organization, Standing and Power............. 35 (b) Authority; No Violations; Consents and Approvals..................... 35 (c) Interim Operations of Sub.................... 36 (d) Information Supplied......................... 36 (e) Brokerage Fees and Commissions............... 36 (f) Financial Capability......................... 37 ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS 5.1 Covenants of the Company........................... 37 (a) Ordinary Course.............................. 37 (b) Dividends; Changes in Stock.................. 37 (c) Issuance of Securities....................... 37 (d) Governing Documents.......................... 38 (e) No Solicitation.............................. 38 (f) No Acquisitions.............................. 40 (g) No Dispositions.............................. 40 (h) Advice of Changes; SEC Filings............... 40 (i) No Dissolution, Etc.......................... 41 (j) Other Actions................................ 41 (k) Certain Employee Matters..................... 41 ii (l) Indebtedness; Advances....................... 41 (m) Material Contracts........................... 42 (n) Accounting................................... 42 (o) Capital Expenditures......................... 42 (p) Tax Matters.................................. 42 (q) Discharge of Liabilities..................... 42 (r) Agreement to Take Action..................... 43 (s) Notices of Certain Events.................... 43 ARTICLE VI ADDITIONAL AGREEMENTS 6.1 Preparation of the Proxy Statement; Company Stockholders Meeting; Merger without a Company Stockholders Meeting............................... 43 6.2 Access to Information.............................. 44 6.3 Legal Conditions to Merger......................... 44 6.4 Fees and Expenses.................................. 45 6.5 Brokers or Finders................................. 45 6.6 Indemnification.................................... 46 6.7 Best Efforts; Notification......................... 46 6.8 Conduct of Business of Sub......................... 47 6.9 Publicity.......................................... 47 6.10 Benefit Plans...................................... 47 6.11 State Takeover Statutes............................ 48 6.12 Warrants........................................... 48 6.13 FCC Matters........................................ 48 6.14 Issuance of Shares................................. 50 ARTICLE VII CONDITIONS PRECEDENT 7.1 Conditions to Each Party's Obligation to Effect the Merger............................. 50 (a) Stockholder Approval......................... 51 (b) HSR Act...................................... 51 (c) No Injunctions or Restraints................. 51 (d) FCC Approvals and Applications............... 51 7.2 Conditions of Obligations of Parent and Sub........ 51 (a) Payment for Shares........................... 51 (b) Representations and Warranties............... 51 (c) Performance of Obligations of the Company.... 51 (d) Consents, Etc................................ 52 (e) Other Approvals.............................. 52 (f) [Intentionally Omitted]...................... 52 (g) No Litigation................................ 52 iii (h) Options and Rights........................... 52 7.3 Conditions of Obligations of the Company........... 53 (a) Representations and Warranties............... 53 (b) Performance of Obligations of Parent and Sub. 53 (c) Government Approvals......................... 53 ARTICLE VIII TERMINATION AND AMENDMENT 8.1 Termination........................................ 53 8.2 Effect of Termination.............................. 55 8.3 Amendment.......................................... 55 8.4 Extension; Waiver.................................. 55 ARTICLE IX GENERAL PROVISIONS 9.1 Nonsurvival of Representations and Warranties...... 55 9.2 Notices............................................ 56 9.3 Interpretation..................................... 57 9.4 Counterparts....................................... 57 9.5 Entire Agreement; No Third Party Beneficiaries; Rights of Ownership................. 57 9.6 Governing Law...................................... 57 9.7 No Remedy in Certain Circumstances................. 57 9.8 Assignment......................................... 57 9.9 Enforcement........................................ 58 SCHEDULES 4.1(a) Subsidiaries 4.1(b)(i) Restricted Stock Award Plan Shares 4.1(b)(ii)(A) Equity Purchase Rights 4.1(b)(ii)(B) Preferred Security Holders 4.1(b)(ii)(C) Company Voting Debt 4.1(b)(ii)(D) Contingent Payouts 4.1(b)(ii)(E) Incomplete Equity Purchase Rights 4.1(b)(iii)(A) Liens and Voting Restrictions with respect to Subsidiary Stock 4.1(b)(iii)(B) Director Election Rights 4.1(b)(iv) Registration Rights 4.1(c)(ii) Conflicts 4.1(f) Compliance with Laws; Permits 4.1(g) Litigation 4.1(h) Tax Matters iv 4.1(i) Employee Benefit Matters 4.1(j) Certain Changes or Events 4.1(k) Undisclosed Material Liabilities 4.1(n) Labor Matters 4.1(o) Intangible Property 4.1(p) OSHA Complaints 4.1(q)(i) Owned Real Property 4.1(q)(ii) Leased Real Property 4.1(q)(iii) Liens on Real Property 4.1(q)(iv) Other Assets 4.1(r) Insurance 4.1(s) Material Contracts 4.1(t) Related Party Transactions 4.1(u) Liens 4.1(v) Fees 4.1(w) Excess Parachute Payments 4.1(y) Pending and Proposed Transactions 5.1(c) Securities to be Issued 5.1(g) Permitted Dispositions 5.1(k) Employee Matters 5.1(o) Capital Expenditures v Glossary of Defined Terms Defined Terms Defined in Section - ------------- ------------------ Acquisition Proposal.................................................5.1(e) Agreement..........................................................preamble Alex Brown..............................................................1.3 At-Will Employment Agreement.........................................4.1(j) Balance Sheet.....................................................4.1(q)(i) Board Percentage........................................................1.4 CERCLA...............................................................4.1(p) Certificate of Merger...................................................2.3 Certificates.........................................................3.3(b) Closing.................................................................2.2 Closing Date............................................................2.2 Code............ ...................................................3.3(e) Company............................................................preamble Company Common Stock...............................................preamble Company Employee Benefit Plans....................................4.1(i)(i) Company ERISA Affiliate...........................................4.1(i)(i) Company Intangible Property.......................................4.1(o)(i) Company Intangible Property Licenses............................4.1(o)(iii) Company Litigation...................................................4.1(g) Company Order........................................................4.1(g) Company Pension Plans.............................................4.1(i)(i) Company Permits......................................................4.1(f) Company SEC Documents................................................4.1(d) Company Stockholder Approval....................................4.1(c)(iii) Company Stockholders Meeting.........................................6.1(b) Company Voting Debt..............................................4.1(b)(ii) Confidentiality Agreement...............................................6.2 Constituent Corporations................................................2.1 Control Group..........................................................6.13 DGCL....................................................................2.2 Dissenting Shares.......................................................3.6 Dormant Subsidiary...................................................4.1(a) Effective Time..........................................................2.3 Employee Options.....................................................3.5(a) Equity Purchase Rights...............................................3.5(d) ERISA.............................................................4.1(i)(i) ERISA Affiliate...................................................4.1(i)(i) Exchange Act............................................................1.1 FCC.............................................................6.13(a)(ii) vi Foreign Plan......................................................4.1(i)(i) GAAP............ ...................................................4.1(d) Governmental Entity.............................................4.1(c)(iii) HSR Act.........................................................4.1(c)(iii) Indebtedness.........................................................4.1(s) Indemnified Parties.....................................................6.6 Injunction...........................................................7.1(c) IRS..................................................................4.1(h) Laws.............................................................4.1(c)(ii) Legal Proceedings ..............................................4.1(p)(xii) Material Adverse Effect..............................................4.1(a) Merger.............................................................preamble Merger Consideration.................................................3.2(a) Multiemployer Plans...............................................4.1(i)(i) Multiple Employer Plans...........................................4.1(i)(i) OSHA...........................................................4.1(p)(i)(A) Offer................................................................1.1(a) Offer Consideration..................................................1.1(a) Offer Documents.........................................................1.2 Options..............................................................3.5(a) Option/Warrant Consideration.........................................3.5(a) Other Options........................................................3.5(a) Parent.............................................................preamble Paying Agent.........................................................3.3(a) Payment Fund.........................................................3.3(a) PBGC............ ...............................................4.1(i)(iv) Person...............................................................3.3(b) Preferred Security...................................................3.5(c) Preferred Stock......................................................4.1(b) Permitted Investments................................................3.3(a) Proxy Statement.................................................4.1(c)(iii) Real Property Leases.............................................4.1(q)(ii) Right................................................................3.5(b) Rights Consideration.................................................3.5(b) SEC..................................................................1.1(b) Schedule 14D-1..........................................................1.2 Schedule 14D-9..........................................................1.3 Second-Step Merger.................................................preamble Securities Act...................................................4.1(b)(iv) Shares.............................................................preamble Stock Option Plans...................................................3.5(a) Stockholders Agreement.............................................preamble Sub................................................................preamble vii Subordinated Debenture...............................................3.5(c) Subsidiary...........................................................3.1(b) Superior Proposal ..............................................5.1(e)(iii) Surviving Corporation...................................................2.1 Terminated Pension Plans..........................................4.1(i)(i) Violation........................................................4.1(c)(ii) Warrants..........................................................4.1(b)(i) viii AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER, dated May 20, 1996 (the "Agreement"), among GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("Parent"), GAC Acquisition I Corp., a Delaware corporation and an indirect, wholly-owned subsidiary of Parent ("Sub"), and AMERIDATA TECHNOLOGIES, INC., a Delaware corporation (the "Company"). WHEREAS, the respective Boards of Directors of Parent, Sub and the Company have unanimously approved the acquisition of the Company by Parent, by means of the merger of Sub with and into the Company (the "Merger"), upon the terms and subject to the conditions set forth in the Agreement; WHEREAS, to effectuate the acquisition, Parent and the Company each desires that Parent cause Sub to commence a cash tender offer to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company ("Shares" or "Company Common Stock"), upon the terms and subject to the conditions set forth in this Agreement and the Offer Documents (as defined in Section 1.2), and the Board of Directors of the Company has unanimously approved such tender offer and is recommending to its stockholders that they accept the tender offer and tender their shares of Company Common Stock pursuant thereto; and WHEREAS, Parent and Sub are unwilling to enter into this Agreement (and effect the transactions contemplated hereby) unless, contemporaneously with the execution and delivery hereof, certain beneficial and record holders of the Company Common Stock enter into agreements (collectively, the "Stockholders Agreement") providing for certain matters with respect to their Shares, the tender of their Shares and certain other actions relating to the Offer (as defined in Section 1.1) and the other transactions contemplated by this Agreement, and in order to induce Parent and Sub to enter into this Agreement, the Company has approved the execution and delivery of the Stockholders Agreement, and such stockholders have agreed to execute and deliver the Stockholders Agreement; and WHEREAS, it is currently contemplated that immediately following the consummation of the Merger, the Company will be merged with and into GAC Acquisition II Corp., a Delaware corporation and a direct, wholly-owned subsidiary of Parent ("Sub II"), with Sub II continuing as the surviving corporation (the "Second-Step Merger" and, together with the Merger, the "Acquisition Mergers"); WHEREAS, Parent, Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and also to prescribe various conditions to consummation thereof; NOW, THEREFORE, in consideration of the foregoing and the mutual premises, representations, warranties, covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I THE OFFER 1.1 The Offer. (a) Provided that this Agreement shall not have been terminated pursuant to Article VIII and none of the events set forth in Exhibit A hereto shall have occurred and be continuing, as promptly as practicable (but in any event not later than five business days after the public announcement of the execution and delivery of this Agreement), Parent shall cause Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of the Company Common Stock at a price of $16.00 per share, net to the seller in cash (the "Offer Consideration"). The obligation of Parent and Sub to commence the Offer, consummate the Offer, accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer and not withdrawn shall be subject to those conditions set forth in Exhibit A hereto, including the condition that a number of Shares representing a majority of all outstanding Shares on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer. (b) Sub expressly reserves the right to increase the price per share payable in the Offer or to make any other changes in the terms and conditions of the Offer, except that without the prior written consent of the Company, Sub shall not (i) decrease or change the form of the Offer Consideration or decrease the number of Shares sought pursuant to the Offer, (ii) impose additional conditions to the Offer, (iii) extend the expiration date of the Offer (except as required by law or the applicable rules and regulations of the SEC and except that Sub may extend the expiration date of the Offer (x) for up to twenty (20) business days after the initial expiration date or (y) for longer periods (not to exceed 120 calendar days from the date of commencement) in the event that any condition to the Offer is not satisfied), or (iv) amend any term of the Offer in any manner adverse to holders of shares of Company Common Stock; provided, however, that, except as set forth above, Sub may waive any condition to the Offer in its sole discretion; and provided further, that the Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). Assuming the prior satisfaction or waiver of the conditions to the Offer, Sub shall accept for payment, and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration date thereof. 1.2 Offer Documents. On the date of commencement of the Offer, Parent and Sub shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule 2 14D-1 (the "Schedule 14D-1") with respect to the Offer which shall contain the offer to purchase and related letter of transmittal (such Schedule 14D-1, letter of transmittal and other ancillary Offer documents and instruments pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents") and shall contain (or shall be amended in a timely manner to contain) all information which is required to be included therein in accordance with the Exchange Act and the rules and regulations thereunder and any other applicable law, and shall conform in all material respects with the requirements of the Exchange Act and any other applicable law; provided, however, that no agreement or representation hereby is made or shall be made by Parent or Sub with respect to information supplied by the Company in writing expressly for inclusion in, or with respect to Company information derived from the Company's public SEC filings which is included or incorporated by reference in, the Offer Documents. Parent, Sub and the Company each agrees promptly to correct any information provided by them for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Sub further agrees to take all lawful action necessary to cause the Offer Documents as so corrected to be filed promptly with the SEC and to be disseminated to holders of Company Common Stock, in each case as and to the extent required by applicable law. The Company and its counsel shall be given the opportunity to review and comment upon the Offer Documents to be filed with the SEC prior to any such filing. 1.3 Company Actions. The Company hereby approves of and consents to the Offer and represents and warrants that (a) the Company's Board of Directors (at a meeting duly called and held) has (i) unanimously determined that each of this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company and its stockholders, (ii) approved this Agreement, the Stockholders Agreement and the transactions contemplated hereby and thereby, including the Offer and the Merger, (iii) resolved to elect not to be subject to any state takeover law that is or purports to be applicable to the Offer, the Merger or the transactions contemplated by this Agreement or the Stockholders Agreement, (iv) taken all steps necessary to render Section 203 of the DGCL inapplicable to this Agreement, the Stockholders Agreement, and the transactions contemplated hereby and thereby, including the Offer and the Merger and (v) subject to the fiduciary duties of the Board of Directors applicable from time to time, resolved to recommend that the holders of the Company Common Stock (the "Stockholders") accept the Offer and tender all of their Shares pursuant thereto and approve the Merger, and (b) Alex. Brown & Sons Incorporated ("Alex Brown") has delivered to the Board of Directors of the Company its written opinion that the Offer Consideration to be received by the holders of Company Common Stock in the Offer and the Merger as contemplated in this Agreement is fair, from a financial point of view, to such holders. The Company hereby consents to the inclusion in the Offer Documents of the recommendation referred to in this Section 1.3. The Company hereby agrees to file with the SEC simultaneously with the filing by Parent and Sub of the Schedule 14D-1, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing such recommendations of the Board of Directors of the Company in favor of the Offer and 3 the Merger and otherwise complying with Rule 14d-9 under the Exchange Act. The Company covenants that the Schedule 14D-9 shall comply in all material respects with the Exchange Act and any other applicable law and shall contain (or shall be amended in a timely manner to contain) all information which is required to be included therein in accordance with the Exchange Act and the rules and regulations thereunder and any other applicable law. The Company, Parent and Sub each agree promptly to correct any information provided by them for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect and the Company further agrees to take all lawful action necessary to cause the Schedule 14D-9 as so corrected to be filed promptly with the SEC and disseminated to the holders of Company Common Stock, in each case as and to the extent required by applicable law. Parent, Sub and their counsel shall be given an opportunity to review and comment upon the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. In connection with the Offer, the Company shall (or shall cause its transfer agent to) promptly furnish Parent with mailing labels, security position listings and all available listings or computer files containing the names and addresses of the record holders of the Company Common Stock as of the latest practicable date and shall furnish Parent with such information and assistance (including updated lists of stockholders, mailing labels and lists of security positions) as Parent or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Company Common Stock. Subject to the requirements of applicable law, and except for such actions as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Parent and Sub shall hold in confidence the information contained in such labels and lists, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated in accordance with its terms, shall deliver promptly to the Company (or destroy and certify to the Company the destruction of) all copies of such information then in their possession. 1.4 Directors. (a) Promptly upon the purchase by Parent or any of its Subsidiaries (including Sub) of such number of shares of Company Common Stock which represents at least a majority of the outstanding shares of Company Common Stock, and from time to time thereafter, Parent shall be entitled to designate such number of directors (the "Parent's Designees"), rounded up to the next whole number as will give Parent representation on the Board of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in the number of directors pursuant to this Section 1.4) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being, the "Board Percentage"), and the Company shall, subject to Parent's having theretofore provided the Company with the information with respect to Parent's Designees required pursuant to Section 14(f) of the Exchange Act, promptly satisfy the Board Percentage by (i) increasing the size of the Board of Directors of the Company or (ii) securing the resignations of such number of directors as is necessary to enable Parent's Designees to be elected to the Board of Directors of the Company (and the Company shall use its best efforts to cause the then-remaining members of the Company's Board of Directors to promptly so 4 elect Parent's Designees). At the request of Parent, the Company shall take, at the Company's expense, all lawful action necessary to effect any such election, including, without limitation, mailing to the Company's stockholders the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, unless such information has previously been provided to the Company's stockholders in the Schedule 14D-9. (b) Following the election or appointment of Parent's Designees pursuant to this Section 1.4 and prior to the Effective Time (as defined in Section 2.3) of the Merger, any amendment or termination of this Agreement, extension for the performance or waiver of the obligations or other acts of Parent or Sub hereunder or waiver of the Company's rights hereunder shall require the concurrence of a majority of directors of the Company then in office who are directors on the date hereof and who voted to approve this Agreement; provided that if there shall be no such directors, such actions may be effected by majority vote of the entire Board of Directors of the Company. ARTICLE II THE MERGER 2.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the "DGCL"), Sub shall be merged with and into the Company at the Effective Time. At the Effective Time, the separate corporate existence of Sub shall cease, and the Company shall continue as the surviving corporation and an indirect wholly owned subsidiary of Parent (Sub and the Company are sometimes hereinafter referred to as "Constituent Corporations" and, as the context requires, the Company is sometimes hereinafter referred to as the "Surviving Corporation"), and shall continue under the name "AMERIDATA TECHNOLOGIES, INC." 2.2 Closing. Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Section 8.1, the closing of the Merger (the "Closing") shall take place at 10:00 a.m., New York time, on the third business day following satisfaction or waiver of the conditions set forth in Article VII (the "Closing Date"), at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, unless another date, time or place is agreed to in writing by the parties hereto. 2.3 Effective Time of the Merger. Subject to the provisions of this Agreement, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger (the "Certificate of Merger") with the Secretary of State of the State of Delaware, as provided in the DGCL, as soon as practicable on or after the Closing Date. The Merger shall become effective upon such filing or at such time thereafter as is provided in the Certificate of Merger (the "Effective Time"). 5 2.4 Effects of the Merger. (a) The Merger shall have the effects as set forth in the applicable provisions of the DGCL. (b) The directors and the officers of Sub immediately prior to the Effective Time shall, from and after the Effective Time, be the initial directors and officers of the Surviving Corporation until their successors have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the Surviving Corporation's Certificate of Incorporation and Bylaws. (c) The Certificate of Incorporation of the Sub immediately prior to the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation, until duly amended in accordance with the terms thereof and the DGCL. (d) The Bylaws of the Sub as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation until thereafter amended as provided by applicable law, the Certificate of Incorporation or the Bylaws. ARTICLE III EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES 3.1 Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of Company Common Stock or the holder of any capital stock of Sub: (a) Capital Stock of Sub. Each share of the capital stock of Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and nonassessable shares of Common Stock, par value $.01 per share, of the Surviving Corporation. (b) Cancellation of Treasury Stock and Parent-Owned Stock. Each share of Company Common Stock and all other shares of capital stock of the Company that are owned by the Company and all shares of Company Common Stock and other shares of capital stock of the Company owned by Parent, Sub or any other wholly-owned Subsidiary (as defined below) of Parent or the Company shall be canceled and retired and shall cease to exist and no consideration shall be delivered or deliverable in exchange therefor. As used in this Agreement, the word "Subsidiary", with respect to any party, means any corporation, partnership, joint venture or other organization, whether incorporated or unincorporated, of which: (i) such party or any other Subsidiary of such party is a general partner; (ii) voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation, partnership, joint venture or other organization is held by such party or by any one or more of 6 its Subsidiaries, or by such party and any one or more of its Subsidiaries; or (iii) at least 50% of the equity, other securities or other interests is, directly or indirectly, owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and any one or more of its Subsidiaries. 3.2 Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of Sub, the Company or the holders of any of the shares thereof: (a) Subject to the other provisions of this Section 3.2, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (excluding shares owned, directly or indirectly, by the Company or any wholly-owned Subsidiary of the Company or by Parent, Sub or any other wholly-owned Subsidiary of Parent and excluding Dissenting Shares (as defined in Section 3.6)) shall be converted into the right to receive the Offer Consideration, payable to the holder thereof, without any interest thereon (the "Merger Consideration"), upon surrender and exchange of the Certificates (as defined in Section 3.3). (b) All shares of Company Common Stock, when converted as provided in Section 3.2(a), no longer shall be outstanding and shall automatically be canceled and retired and shall cease to exist, and each Certificate previously evidencing such Shares shall thereafter represent only the right to receive the Merger Consideration. The holders of Certificates previously evidencing Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to the Company Common Stock except as otherwise provided herein or by law and, upon the surrender of Certificates in accordance with the provisions of Section 3.3 (but subject to Section 3.6), such certificates shall represent only the right to receive for their Shares the Merger Consideration, without any interest thereon. 3.3 Payment for Shares. (a) Paying Agent. Prior to the Effective Time, Sub shall appoint a United States bank or trust company selected by Parent and reasonably acceptable to the Company to act as paying agent (the "Paying Agent") for the payment of the Merger Consideration, and Parent shall deposit or shall cause to be deposited with the Paying Agent in a separate fund established for the benefit of the holders of shares of Company Common Stock, for payment in accordance with this Article III, through the Paying Agent (the "Payment Fund"), immediately available funds in amounts necessary to make the payments pursuant to Section 3.2(a) and this Section 3.3 to holders of shares of Company Common Stock (other than the Company or any wholly-owned Subsidiary of the Company or Parent, Sub or any other wholly-owned Subsidiary of Parent, or holders of Dissenting Shares). The Paying Agent shall, pursuant to irrevocable instructions, pay the Merger Consideration out of the Payment Fund. From time to time at or after the Effective Time, Parent shall take all lawful action necessary to make or cause to be made the appropriate cash payments, if any, to 7 holders of Dissenting Shares. Prior to the Effective Time, Parent shall enter into such appropriate commercial arrangements, if any, as may be necessary to ensure effectuation of the immediately preceding sentence. The Paying Agent shall invest portions of the Payment Fund as Parent directs in obligations of or guaranteed by the United States of America, in commercial paper obligations receiving the highest investment grade rating from both Moody's Investors Services, Inc. and Standard & Poor's Corporation, or in certificates of deposit, bank repurchase agreements or banker's acceptances of commercial banks with capital exceeding $1,000,000,000 (collectively, "Permitted Investments"); provided, however, that the maturities of Permitted Investments shall be such as to permit the Paying Agent to make prompt payment to former holders of Company Common Stock entitled thereto as contemplated by this Section. All earnings on Permitted Investments shall be paid to Parent. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Common Stock shall be entitled under this Section 3.3, Parent shall promptly restore such amount of the inadequacy to the Payment Fund, and in any event shall be liable for payment thereof. The Payment Fund shall not be used for any purpose except as expressly provided in this Agreement. (b) Payment Procedures. As soon as reasonably practicable after the Effective Time, Parent shall instruct the Paying Agent to mail to each holder of record (other than the Company or any wholly-owned Subsidiary of the Company or Parent, Sub or any other wholly-owned Subsidiary of Parent) of a Certificate or Certificates which, immediately prior to the Effective Time, evidenced outstanding shares of Company Common Stock (the "Certificates"), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent, and shall be in such form and have such other provisions as Parent reasonably may specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for payment therefor. Upon surrender of a Certificate for cancellation to the Paying Agent together with such letter of transmittal, duly executed, and such other customary documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in respect thereof cash in an amount equal to the product of (x) the number of shares of Company Common Stock represented by such Certificate and (y) the Merger Consideration, and the Certificate so surrendered shall forthwith be canceled. No interest shall be paid or accrued on the Merger Consideration payable upon the surrender of any Certificate. If payment is to be made to a Person (as defined below) other than the Person in whose name the surrendered Certificate is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the surrendered Certificate or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 3.3, after the Effective Time each Certificate (other than Certificates representing Shares owned by the Company or any wholly-owned Subsidiary of the Company or Parent, Sub or any other wholly-owned Subsidiary of Parent) 8 shall represent for all purposes only the right to receive the Merger Consideration. For purposes of this Agreement, "Person" means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity. (c) Termination of Payment Fund; Interest. Any portion of the Payment Fund which remains undistributed to the holders of Company Common Stock for six months after the Effective Time shall be delivered to the Company, upon demand, and any holders of Company Common Stock who have not theretofore complied with this Article III and the instructions set forth in the letter of transmittal mailed to such holder after the Effective Time shall thereafter look only to the Company for payment of the Merger Consideration to which they are entitled; provided that if, but only if, the Company shall have defaulted in its obligation to make such payment within a reasonable period of time after receipt of written request therefor from any such holder, such holder may thereafter look to Parent for payment of the Merger Consideration to which they are entitled. All interest accrued in respect of the Payment Fund shall inure to the benefit of and be paid to Parent. (d) No Liability. Neither Parent nor the Surviving Corporation shall be liable to any holder of shares of Company Common Stock for any cash from the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. (e) Withholding Rights. Parent or the Company shall be entitled to deduct and withhold, or cause the Paying Agent to deduct and withhold, from the consideration otherwise payable pursuant to this Agreement to any holder of Certificates such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of state, local or foreign tax law. To the extent that amounts are so withheld, (i) such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificates in respect of which such deduction and withholding was made, and (ii) Parent or the Company shall provide, or cause the Paying Agent to provide, to the holders of such Certificates written notice of the amounts so deducted or withheld. 3.4 Stock Transfer Books. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Common Stock thereafter on the records of the Company. 3.5 Options, Warrants and Other Purchase Rights. (a) After the Effective Time, each holder of (i) a then outstanding option (collectively, the "Employee Options") to purchase Shares under the Company's 1991 Stock Option Plan and the Option Agreements between the Company and certain of its officers, directors, employees and consultants (the "Stock Option Plans"), (ii) a Warrant (as defined in Section 4.1(b)), and (iii) except as provided in Sections 3.5(b) and (c) below, any other 9 option, warrant or other right to acquire (upon purchase, exchange, conversion or otherwise) shares of Company Common Stock (collectively, the "Other Options" and, together with the Employee Options, the "Options"), shall, upon exercise of such Option or Warrant in accordance with its terms, be entitled to receive for each Share subject to such Option or Warrant, in settlement and cancellation thereof, an amount (subject to any applicable withholding tax) in cash equal to the difference between the Offer Consideration and the per Share exercise price of such Option or Warrant, as the case may be, to the extent such difference is a positive number (such amount being hereinafter referred to as, the "Option/Warrant Consideration"); provided, however, that with respect to any Person subject to Section 16(a) of the Exchange Act, any such amount shall be paid as soon as practicable after the first date payment can be made without liability to such Person under Section 16(b) of the Exchange Act. The Company represents and warrants to Parent and Sub that the Stock Option Plans have been amended to the extent necessary to give effect to the foregoing. Upon receipt of the related Option/Warrant Consideration, the Option or Warrant, as the case may be, shall be canceled. The surrender of an Option or Warrant to the Company in exchange for the Option/Warrant Consideration shall be deemed a release of any and all rights the holder had or may have had in respect of such Option or Warrant. (b) At the Effective Time, each holder of a right to purchase Shares under the Company's 1991 Stock Purchase Plan (the "Stock Purchase Plan") pursuant to any offering under the Stock Purchase Plan (a "Right"), whether or not then exercisable, shall, in settlement and cancellation thereof, receive for such Right an amount (subject to any applicable withholding tax) in cash (such amount being hereinafter referred to as the "Rights Consideration") equal to the sum of (i) the product of such holder's Accrued Shares (as defined below) with respect to such offering times the difference between (A) the Offer Consideration and (B) the lower of (I) 85% of the fair market value of the Company Common Stock on the effective date of the related offering under the Stock Purchase Plan (determined in accordance with the Stock Purchase Plan) and (II) 85% of the fair market value of the Company Common Stock on the date immediately prior to the public announcement of the Offer (such lower amount with respect to an offering, the "Applicable Per Share Price"), to the extent such difference is a positive number, plus (ii) an amount equal to the aggregate amount in such holder's payroll deduction account with the Company with respect to such offering at the Effective Time (the "Related Deduction Account Amount"); provided, however, that with respect to any Person subject to Section 16(a) of the Exchange Act, any such amount shall be paid as soon as practicable after the first date payment can be made without liability to such Person under Section 16(b) of the Exchange Act. Upon receipt of the related Rights Consideration, the Right shall be canceled and such receipt shall be deemed a release of any and all rights the holder had or may have had in respect of such Right. The "Accrued Shares" of a holder of a Right with respect to any offering under the Stock Purchase Plan shall mean the amount obtained by dividing (I) the Related Deduction Account Amount with respect to such offering by (II) the Applicable Per Share Price with respect to such offering, rounded up to the next whole share. The Company 10 represents and warrants to the Parent and Sub that the Stock Purchase Plan has been amended to give effect to the foregoing. (c) After the Effective Time, each holder of an 8% Convertible Subordinated Debenture due 2003 of the Company (a "Subordinated Debenture") shall be entitled to receive, upon conversion thereof in accordance with the terms thereof, in settlement and cancellation thereof, solely an amount (subject to any applicable withholding tax) in cash equal to the amount receivable upon the consummation of the Merger by a holder of that number of shares of Company Common Stock into which the Subordinated Debentures of such holder were convertible immediately prior to the Merger. The foregoing shall apply whether such conversion of the Subordinated Debenture occurs upon conversion of any of the 8% Convertible Fixed Life Aggregated Securities (each, a "Preferred Security") in accordance with the terms thereof or otherwise. The Company represents and warrants to Parent and Sub that the Subordinated Debenture and the Preferred Securities provide, by their terms, for the foregoing. (d) Prior to the Effective Time, the Company shall use its commercially reasonable efforts to obtain all necessary consents or releases from holders of Options, Warrants, Rights, Preferred Securities and Subordinated Debentures (collectively, the "Equity Purchase Rights") and shall take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 3.5. Prior to the Effective Time, the Company shall (i) terminate the Stock Option Plans and Stock Purchase Plan without liability to the Company or the Surviving Company (other than as contemplated by this Section 3.5) as of the Effective Time and terminate or cancel as of the Effective Time the provisions in any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary thereof and (ii) take all action reasonably necessary to ensure that following the Effective Time no holder of any Equity Purchase Right or participant in any other plan, program or arrangement shall have any right thereunder to acquire equity securities of the Company, the Surviving Corporation or any Subsidiary thereof. The Company shall take such steps as are reasonably necessary to satisfy Parent that no holder of an Equity Purchase Right will have the right to acquire any stock or other interest in the Company, the Surviving Corporation or any Subsidiary thereof as a result of such Equity Purchase Right on or after the Effective Time. 3.6 Dissenting Shares. Notwithstanding any other provisions of this Agreement to the contrary, shares of Company Common Stock that are outstanding immediately prior to the Effective Time and which are held by stockholders who shall have not voted in favor of the Merger or consented thereto in writing and who shall have demanded properly in writing appraisal for such shares in accordance with Section 262 of the DGCL (collectively, the "Dissenting Shares") shall not be converted into or represent the right to receive the Merger Consideration. Such shares instead shall, from and after the Effective Time, represent only the right to receive payment of the appraised value of such shares of Company Common Stock held by them in accordance with the provisions of such Section 11 262, except that all Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such shares of Company Common Stock under such Section 262 shall thereupon be deemed to have been converted into and to have become exchangeable, as of the Effective Time, for the right to receive, without any interest thereon, the Merger Consideration upon surrender, in the manner provided in Section 3.3, of the Certificate or Certificates that, immediately prior to the Effective Time, evidenced such shares of Company Common Stock. ARTICLE IV REPRESENTATIONS AND WARRANTIES 4.1 Representations and Warranties of the Company. The Company represents and warrants to Parent and Sub as follows: (a) Organization, Standing and Power. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its respective jurisdiction of incorporation, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to conduct business in each jurisdiction in which the business it is conducting, or the operation, ownership or leasing of its properties, makes such qualification necessary, other than in such jurisdictions where the failure so to qualify could not reasonably be expected to have a Material Adverse Effect (as defined below) with respect to the Company. The Company has heretofore made available to Parent complete and correct copies of its and its Subsidiaries' respective Certificates of Incorporation and Bylaws. All Subsidiaries of the Company (other than those that do not have, and have not since January 1, 1996, had, any business operations or any significant assets or liabilities, contingent or otherwise (each, a "Dormant Subsidiary")), and their respective jurisdictions of incorporation or organization are identified on Schedule 4.1(a). As used in this Agreement, a "Material Adverse Effect" shall mean, with respect to any party, the result of one or more events, changes or effects which, individually or in the aggregate, would have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or prospects of such party and its Subsidiaries, taken as a whole. (b) Capital Structure. (i) The authorized capital stock of the Company consists of 50,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, $.01 par value ("Preferred Stock"). As of the date of this Agreement, (A) 22,281,302 shares of Company Common Stock (excluding (I) 64,550 shares of Company Common Stock to be issued pursuant to the Company's Restricted Stock Award Plan and held in custody by the Company for participants' accounts and (II) 113,732 shares of Company Common Stock to be issued pursuant to the Asset Purchase Agreement, dated April 3, 1995, among AmeriData of Texas, Inc., AmeriData Technologies, MicroComputer Power, Inc., MicroComputer Power of Virginia, Inc., MicroComputer Power of Texas, Inc., Debra Wexler 12 and Victor Grinshtein (the "MCP Shares")) and no shares of Preferred Stock were issued and outstanding, (B) 2,310,512 shares of Company Common Stock were reserved for issuance pursuant to the Stock Option Plans, (C) 1,458,041 shares of Company Common Stock were reserved for issuance pursuant to the Stock Purchase Plan, (D) 3,521,576 shares were reserved for issuance upon conversion of the Subordinated Debentures, (E) 2,418,737 Shares were reserved for issuance pursuant to the warrants listed on Schedule 4.1(b)(ii)(A) hereto under the heading "Warrants" (the "Warrants"), and (F) 23,074 Shares were held by the Company. Except as set forth above, as of the date of this Agreement no shares of capital stock or other voting or equity securities of the Company were issued, reserved for issuance or outstanding. Other than as set forth on Schedule 4.1(b)(i), there are no Shares granted, allocated or otherwise awarded under the Company's Restricted Stock Award Plan (whether subject to any contingencies or otherwise) that are not already issued by the Company and outstanding. The Subordinated Debenture is owned by AmeriData Delaware LLC. (ii) Schedule 4.1(b)(ii)(A) sets forth, as of the date hereof, a list of (A) each outstanding Employee Option, Other Option and Warrant, the holder thereof, the date of grant, the number of such Options and Warrants that are exercisable, the dates upon which such Other Options and Warrants expire and the exercise prices applicable to such Options and Warrants, (B) the aggregate number of Shares subject to Rights under the Stock Purchase Plan with respect to each offering (as such term is used in the Stock Purchase Plan) under the Stock Purchase Plan, the aggregate amount of each participant's payroll deduction account with the Company with respect to each such offering, the amount that is 85% of the fair market value of the Company Common Stock on the effective date of each offering, and the date of the expiration of the payroll deduction period (as defined in the Stock Purchase Plan) with respect to each offering, and (C) each other right to acquire shares of Company Common Stock pursuant to any other agreement or instrument (other than Preferred Securities), describing such right and indicating the holder thereof. Schedule 4.1(b)(ii)(B) sets forth (x) the list provided by Continental Stock Transfer & Trust Company, the Company's transfer agent, of the record holders of the Preferred Securities, including the amount held by each such holder and (y) each beneficial holder of Preferred Securities of which the Company is aware. Except as set forth on Schedule 4.1(b)(ii)(E), the Company has provided to Parent true and complete copies of all agreements or instruments evidencing each Equity Purchase Right. Except as set forth on Schedule 4.1(b)(ii)(A) or Schedule 4.1(b)(ii)(C), there are (x) no employment, executive termination or other agreements providing or which may provide, upon the occurrence of any contingencies or otherwise, for the issuance of Shares at any time on or after the date hereof, and (y) no bonds, debentures, notes or other instruments or evidence of Indebtedness (as defined in Section 4.1(s)) having the right to vote (or, other than the Subordinated Debentures, convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which the Company stockholders may vote ("Company Voting Debt") issued or outstanding. There are no outstanding stock appreciation rights and, except as set forth on Schedule 4.1(b)(ii)(D), there are no other outstanding contractual rights the value of which is derived from the financial performance of the Company or any of its Subsidiaries or the value of shares of Company Common Stock. All 13 rights granted pursuant to Article III of that certain Asset Purchase Agreement, dated September 9, 1994, among the Company, Mobile Systems Integration, Inc., the MSI Group, Inc. and the shareholders named therein (the "MSI Shareholders") have been validly terminated in accordance with the terms of the MSI Agreement, and none of the MSI shareholders currently have or will hereafter have any right to any payment pursuant to Article III of the MSI Agreement. (iii) All outstanding Shares are validly issued, fully paid and nonassessable and are not subject to preemptive or other similar rights. Except as set forth on Schedule 4.1(b)(iii)(A), all outstanding shares of capital stock of the Subsidiaries of the Company are owned by the Company or a direct or indirect Subsidiary of the Company, free and clear of all liens, charges, encumbrances, claims and options of any nature. Except for the Equity Purchase Rights set forth on Schedule 4.1(b)(ii)(A) and except for changes since the date hereof resulting from the exercise of Equity Purchase Rights set forth on Schedule 4.1(b)(ii)(A), there are outstanding: (A) no shares of capital stock, Company Voting Debt or other voting or equity securities of the Company, other than the outstanding Shares referred to in Section 4.1(b)(i); (B) no securities of the Company or any Subsidiary of the Company convertible into, or exchangeable or exercisable for (or which may in the future be convertible into or exchangeable or exercisable for), shares of capital stock, Company Voting Debt or other voting or equity securities of the Company or any Subsidiary of the Company; and (C) no options, warrants, calls, rights (including preemptive rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound, in any case obligating (or which may in the future obligate) the Company or any Subsidiary of the Company to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or acquired, additional shares of capital stock or any Company Voting Debt or other voting or equity securities of the Company or of any Subsidiary of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, call, right, commitment or agreement. Except for the Stockholders Agreement, there are not as of the date hereof and there will not be at the Effective Time any stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or disposition of any shares of the capital stock of the Company (including any such agreements or understandings that may limit in any way the solicitation of proxies by or on behalf of the Company from, or the casting of votes by, the stockholders of the Company with respect to the Merger) or, except as set forth on Schedule 4.1(b)(iii)(B), granting to any Person or group of Persons the right to elect, or to designate or nominate for election, a director to the Board of Directors of the Company. There are no restrictions on the Company's right or ability to vote the stock of any of its Subsidiaries. (iv) Set forth on Schedule 4.1(b)(iv) is a true and complete list of all agreements or other obligations of the Company or any of its Subsidiaries requiring the Company or any Subsidiary to register, under the Securities Act of 1933, as amended (the "Securities Act"), any capital stock, warrants, options, or other debt or equity securities of the 14 Company or any of its Subsidiaries, including incidental registration rights exercisable by any Person only upon the filing by the Company of a registration statement (whether on its behalf or on behalf of any other security holder), in each case indicating the securities so required to be registered, the Persons to whom such registration rights were granted, the duration of the obligation to register and maintain effective registration of such securities, and whether such registration rights, by their terms, continue after the consummation of the Merger. Except as set forth on Schedule 4.1(b)(iv), neither the Company nor any of its Subsidiaries has any agreement or other obligation requiring the Company or any Subsidiary to so register any such securities. (v) Immediately following the Effective Time no holder of an Equity Purchase Right or other Person (other than Parent or Sub) shall have any right, contingent or otherwise, to acquire any capital stock of the Company or any of its Subsidiaries. (c) Authority; No Violations; Consents and Approvals. (i) The Company has all requisite corporate power and authority to enter into this Agreement and the Stockholders Agreement and, subject, if required with respect to consummation of the Merger, to the Company Stockholder Approval (as defined in Section 4.1(c)(iii)), to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Stockholders Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company, subject, if required with respect to consummation of the Merger, to the Company Stockholder Approval. Each of this Agreement and the Stockholders Agreement has been duly executed and delivered by the Company and, assuming that such agreement constitutes the valid and binding agreement of Parent and Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms except that the enforcement hereof may be limited by (A) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). (ii) The execution and delivery of this Agreement and the Stockholders Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the Second-Step Merger) and thereby will not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, enhancement or acceleration of any obligation or the loss of a material benefit under, or give rise to the creation of a lien, pledge, security interest or other encumbrance on assets or property, or any right of first refusal with respect to any asset or property (any such conflict, violation, default, right of termination, cancellation, enhancement or acceleration, loss, creation or right of first refusal, a "Violation"), pursuant to (A) any provision of the Certificate of Incorporation or Bylaws of the Company or any of its 15 Subsidiaries, (B) except as set forth on Schedule 4.1(c)(ii) hereto, any loan or credit agreement, note, mortgage, indenture, lease, Company Employee Benefit Plan (as defined in Section 4.1(i)) or other agreement, obligation, instrument, Company Permit (as defined in Section 4.1(f)), concession, franchise or license to which the Company or any of its Subsidiaries is a party or by which it or any of its properties or assets are bound, or (C) assuming the consents, approvals, authorizations or permits and filings or notifications referred to in paragraph (iii) of this Section 4.1(c) are duly and timely obtained or made and, if required, the Company Stockholder Approval is obtained, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or their respective properties or assets (collectively, "Laws"), other than, in the case of clauses (B) and (C) of this Section 4.1(c)(ii), any such conflicts, violations, defaults, rights or liens that individually or in the aggregate could not reasonably be expected to (W) have a Material Adverse Effect with respect to the Company, (X) impair in any material respect the ability of the Company to perform its obligations under this Agreement, (Y) prevent or impede the consummation of any of the transactions contemplated by this Agreement or (Z) result in any payment or repurchase obligation (or the loss of any benefit or right having a value) exceeding, individually or in the aggregate, $10,000,000. (iii) No consent, approval, order or authorization of, or registration, declaration or filing with, notice to, or permit from any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity"), is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby (including, without limitation, the Second-Step Merger), except for: (A) the filing of a premerger notification and report form by the Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") and the expiration or termination of the applicable waiting period thereunder; (B) the filing with the SEC of (1), if required by applicable law, a proxy or information statement in definitive form relating to a meeting of the holders of Company Common Stock to approve the Merger ("Company Stockholder Approval") (such proxy or information statement as amended or supplemented from time to time, together with the letter to stockholders, notice of meeting, and form of proxy, being hereinafter collectively referred to as the "Proxy Statement"), (2) the Schedule 14D-9 in connection with the Offer, and (3) such reports under and such other compliance with the Exchange Act and the rules and regulations thereunder, as may be required in connection with this Agreement and the transactions contemplated hereby; (C) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware; (D) such filings, consents and approvals as may be required pursuant to (i) the Competition Act (Canada), (ii) the Federal Law on Economic Competition of Mexico and (iii) the Austrian Cartel Act of 1988, as amended; and (E) the Pro Forma Application (as defined below) shall have been filed with and granted by the Federal Communications Commission. 16 (d) SEC Documents; Financial Statements. The Company has made available to Parent a true and complete copy of each report, schedule, registration statement and definitive proxy statement filed by the Company with the SEC (the "Company SEC Documents") which are all the documents (other than preliminary material) that the Company was required to file with the SEC. As of their respective filing dates (or, in the case of registration statements, their respective effective dates), the Company SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations thereunder. None of the Company SEC Documents at the time filed (or in the case of registration statements, their respective effective dates) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore delivered to Parent (i) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of March 31, 1996, and (ii) the unaudited statements of consolidated liabilities and stockholder's equity, consolidated operations and consolidated cash flows of the Company and its Subsidiaries for the three months ended March 31, 1996 ((i) and (ii) collectively, the "Interim Financial Statements"). The financial statements of the Company included in the Company SEC Documents and the Interim Financial Statements complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved ("GAAP") (except, in the case of unaudited financial statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of unaudited statements, to normal, recurring adjustments, none of which will be material) the consolidated financial position of the Company and its Subsidiaries as of their respective dates and the consolidated results of operations and the consolidated cash flows of the Company and its Subsidiaries for the periods presented therein. (e) Information Supplied. None of the information relating to the Company and its Subsidiaries included in the Proxy Statement will, at the time of (i) the mailing of the Proxy Statement or (ii) the meeting of the stockholders to which the Proxy Statement relates or at the Effective Time, be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. None of the information relating to the Company and its affiliates supplied in writing by the Company specifically for inclusion in the Offer Documents will, at the respective times the Offer Documents are filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time the Company should become aware of any event relating to the Company or any of its Subsidiaries that is required by applicable law to be set forth in an amendment of, 17 or supplement to, the Offer Documents, the Company shall promptly so inform the Sub or the Parent and will furnish to the Sub or the Parent all information relating to such event that is required under applicable law to be disclosed in an amendment or supplement to the Offer Documents. The Schedule 14D-9 will comply as to form in all material respects with the Exchange Act, and shall not, when filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no agreement or representation hereby is made or shall be made by the Company with respect to information supplied by Parent or Sub in writing expressly for inclusion in the Schedule 14D-9. (f) Compliance with Applicable Laws. The Company and its Subsidiaries hold all permits, licenses, variances, exemptions, orders, franchises and approvals of all Governmental Entities necessary for the lawful conduct of their respective businesses (the "Company Permits"), except where the failure to possess the same could not reasonably be expected to have a Material Adverse Effect with respect to the Company. The Company and its Subsidiaries are in all material respects in compliance with the terms of the Company Permits. Except as disclosed on Schedule 4.1(f), the businesses of the Company and its Subsidiaries are not being conducted (i) in violation of (A) any federal, state or foreign anti-trust or competition Laws, (B) any federal, state or foreign Laws regarding government procurement, or (C) the Foreign Corrupt Practices Act of 1977, as amended (and the Company and its Subsidiaries are in compliance with all such Laws), and (ii) in material violation of any other Laws (and the Company and its Subsidiaries are in compliance in all material respects with all such other Laws). To the knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company or any of its Subsidiaries is pending or threatened. (g) Litigation. Except as disclosed in Schedule 4.1(g), (i) there is no suit, action or proceeding pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary of the Company ("Company Litigation"), (ii) the Company and its Subsidiaries have no knowledge (after due inquiry) of any facts which are reasonably likely to give rise to any Company Litigation, and (iii) there is no judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against the Company or any Subsidiary of the Company ("Company Order"), in each case which, (A) involves a claim, or related claims arising out of the same facts or circumstances, for amounts in excess of $1,000,000, (B) involves an allegation of criminal misconduct or a violation of the Racketeer and Influenced Corrupt Practices Act, as amended, (C) involves claims for equitable relief, (D) involves claims made by the Company's ten largest customers and suppliers (based upon the aggregate dollar amount of purchases made by such customer or from such supplier during fiscal 1995), or (E) individually or in the aggregate, is reasonably likely to (I) if adversely determined, result in a Material Adverse Effect on the Company, (II) prevent, hinder or materially delay its ability to consummate the transactions contemplated by or perform its obligations under this Agreement (including the Acquisition Mergers) or (III) 18 prevent the consummation of the transactions contemplated by this Agreement (including the Acquisition Mergers). (h) Taxes. The Company and each of its Subsidiaries have timely filed all material tax returns required to be filed by such party (giving effect to any valid extensions of time), have paid (or the Company has paid on behalf of any such Subsidiary), or the Company has established an adequate reserve for the payment of, all taxes required to be paid in respect of all taxable periods of the Company and its Subsidiaries as to which the applicable statute of limitations for assessment has not expired, and have properly withheld and paid over to the appropriate taxing authorities all taxes required to be so withheld and paid over. The most recent financial statements contained in the Company SEC Documents filed prior to the date of this Agreement reflect an adequate reserve for all taxes payable by the Company and its Subsidiaries accrued through the date of such financial statements. All material deficiencies for taxes which have been proposed, asserted or assessed against the Company or any of its Subsidiaries have been fully paid, are reflected as a liability in such financial statements in accordance with Statement of Financial Accounting Standards No. 5, are being contested and an adequate reserve therefor has been established and is reflected in such financial statements in accordance with Statement of Financial Accounting Standards No. 5 or, to the extent set forth on Schedule 4.1(h), the Company or such Subsidiary is entitled to indemnification therefor. There are no liens for taxes (other than for current taxes not yet due and payable) on the assets of the Company or its Subsidiaries. Except as set forth on Schedule 4.1(h), no federal or state income tax returns of, or that include, the Company or any of its Subsidiaries are under examination currently by the United States Internal Revenue Service (the "IRS") or any state taxing authority. Except as set forth on Schedule 4.1(h), no waiver of the statute of limitations for the assessment of any tax against the Company or any of its Subsidiaries has been granted and remains in effect. The Company has previously delivered or made available to Parent true and complete copies of its federal and state income tax returns for each of the taxable years ended December 31, 1993 through December 31, 1994. Except as set forth on Schedule 4.1(h), neither the Company nor any of its Subsidiaries is a party to or bound by any agreement providing for the allocation or sharing of taxes with any entity which is not, either directly or indirectly, a Subsidiary of the Company. Except as set forth on Schedule 4.1(h), neither the Company nor any of its Subsidiaries has (i) filed a consent pursuant to or agreed to the application of Section 341(f) of the Code, (ii) entered into a closing agreement pursuant to Section 7121 of the Code or (iii) agreed to, or is required to make, any adjustments pursuant to Section 481(a) of the Code which, in the case of items (ii) and (iii), has continuing effect. The Company is not a "United States real property holding corporation" as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. For the purpose of this Agreement, the term "tax" (and, with correlative meaning, the terms "taxes" and "taxable") shall include all federal, state, local and foreign income, profits, franchise, gross receipts, payroll, sales, employment, use, property, capital, transactions, value-added, stamp, customs, withholding, excise and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts. 19 (i) Pension And Benefit Plans; ERISA. (i) Schedule 4.1(i)(i) hereto contains a true and complete list of (A) all "employee benefit plans", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other employee benefit arrangements or payroll practices, including, without limitation, severance pay, sick leave or other leave of absence, vacation or holiday pay, salary continuation for disability, consulting, retirement, deferred compensation, bonus or other incentive compensation, stock option, award or purchase, hospitalization, medical insurance, life insurance and scholarship or other educational assistance programs or agreements maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributed or is obligated to contribute thereunder other than Foreign Plans (as defined below), "Multiemployer Plans" as defined in Section 4001(a)(3) of ERISA ("Multiemployer Plans") and terminated "Employee Benefit Plans," as defined in Section 3(2) of ERISA, for which the Company or any of its Subsidiaries or ERISA Affiliates (as defined below) have no further liability, whether direct, contingent or otherwise ("Terminated Pension Plans") (collectively, "Company Employee Benefit Plans"), and (B) all "employee pension plans", as defined in Section 3(2) of ERISA maintained by the Company or any of its Subsidiaries or any corporation, trade or business which is under common control, or which is treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which the Company or any of its Subsidiaries or any ERISA Affiliate contributed or is obligated to contribute thereunder other than Multiemployer Plans, Foreign Plans or Terminated Pension Plans ("Company Pension Plans"). Except as disclosed on Schedule 4.1(i)(i), none of the Company Employee Benefit Plans or the Company Pension Plans is or has been subject to Sections 4063 or 4064 of ERISA ("Multiple Employer Plans"). Except as disclosed in Schedule 4.1(i)(i), neither the Company nor any of its Subsidiaries nor any ERISA Affiliate contributed to or is obligated to contribute to any Multiemployer Plan. Except as disclosed in Schedule 4.1(i)(i) or as required by Section 3.5 hereof, there has not been any amendment in any material respect by the Company or any of its Subsidiaries of any Company Employee Benefit Plan or Company Pension Plan since December 31, 1995. Except as disclosed on Schedule 4.1(i)(i), there are no Terminated Pension Plans. For purposes of this Agreement, "Foreign Plan" means each employee benefit plan, including any statutory benefit, maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens. (ii) Except as disclosed on Schedule 4.1(i)(ii), the Company Pension Plans intended to qualify under Section 401 of the Code so qualify and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and nothing has occurred with respect to the operation of the Company Pension Plans which could cause the loss of such qualification or exemption or the imposition of any material liability (except for benefits, insurance premiums or administrative expenses), penalty, or tax under ERISA or the Code. 20 (iii) All contributions required by law to have been made under any of the Company Employee Benefit Plans or the Company Pension Plans to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension) and no accumulated funding deficiencies (without regard to any waivers granted under Section 412 of the Code) exist in any of the Company Employee Benefit Plans or the Company Pension Plans subject to Section 412 of the Code. (iv) Except as disclosed on Schedule 4.1(i)(iv), there is no "amount of unfunded benefit liabilities" (as defined in Section 4001(a)(18) of ERISA) in any of the Company Pension Plans which are subject to Title IV of ERISA, as calculated in accordance with the actuarial assumptions used by the Pension Benefit Guaranty Corporation (the "PBGC") to determine the level of funding required in the event of the termination of such Company Pension Plan. (v) Except as disclosed in Schedule 4.1(i)(v), there has been no "reportable event" as that term is defined in Section 4043 of ERISA and the regulations thereunder with respect to the Company Pension Plans subject to Title IV of ERISA which would require the giving of notice or any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA. (vi) True, correct and complete copies of the following documents, with respect to each of the Company Employee Benefit Plans and the Company Pension Plans, have been made available or delivered by the Company to Parent: (A) any plans and related trust documents, and amendments thereto, (B) the most recent Form 5500 (with Schedules), (C) the most recent actuarial report and valuation, (D) the most recent Internal Revenue Service determination letter, (E) summary plan descriptions, (F) written descriptions of all material non-written agreements relating to the Company Employee Benefit Plans and the Company Pension Plans and (G) employment, consulting or individual compensation, severance, deferred compensation or any similar agreement (and any amendments to such agreements). (vii) There are no pending actions, claims or lawsuits which have been instituted or, to the knowledge of the Company or any of its Subsidiaries, threatened against Company Employee Benefit Plans or the Company Pension Plans, the assets of any of the trusts under such plans, the plan sponsor, the plan administrator or any fiduciary of the Company Employee Benefit Plans or the Company Pension Plans with respect to the operation of such plans (other than routine benefit claims). (viii) The Company Employee Benefit Plans and the Company Pension Plans have been maintained and administered, in all material respects, in accordance with their terms and with all provisions of ERISA (including applicable regulations thereunder) and other applicable Federal and state law, and neither the Company nor any of its Subsidiaries nor, to the Company's best knowledge, any "party in interest" or "disqualified person" with 21 respect to the Company Employee Benefit Plans and the Company Pension Plans has engaged in a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA. (ix) None of the Company, any of its Subsidiaries or any Company ERISA Affiliate has terminated any Company Pension Plan subject to Title IV as to which there is any remaining liability, or incurred any outstanding liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA. (x) Except as disclosed on Schedule 4.1(i)(x), none of the Company Employee Benefit Plans provide for post-employment continuing health or medical benefits or coverage for any participant or any beneficiary of a participant except as may be required under Section 4980B of the Code, and at the sole expense of the participant or the participant's beneficiary. (xi) Except as disclosed on Schedule 4.1(i)(xi), none of the Company, any of its Subsidiaries or any ERISA Affiliate has withdrawn in a complete or partial withdrawal from any Multiemployer Plan prior to the Effective Date, nor has any of them incurred any liability due to the termination or reorganization of a Multiemployer Plan other than any such withdrawal or liability as to which all liability has been fully satisfied. (xii) None of the Company, any of its Subsidiaries, any ERISA Affiliate or any organization to which the Company is a successor or parent corporation within the meaning of Section 4069(b) of ERISA, has engaged in any transaction within the meaning of Section 4069 of ERISA. (xiii) Except as disclosed on Schedule 4.1(i)(xiii) or as provided in Section 3.5 hereof, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in any payment becoming due to any employee or group of employees of the Company or any of its Subsidiaries, (B) increase any benefits otherwise payable under any Company Employee Benefit Plan or Company Pension Plan or (C) result in the acceleration of the time of payment or vesting of any such benefits. (xiv) None of the Company or any of its Subsidiaries has any contract, plan, or commitment, to create any additional Company Employee Benefit Plan or Company Pension Plan or to modify any existing Company Employee Benefit Plan or Company Pension Plan. (xv) With respect to any period for which any contribution to or in respect of any Company Employee Benefit Plan or Company Pension Plan is not yet due or owing, the Company and each of its Subsidiaries has made due and sufficient current accruals for such contributions and other payments in accordance with GAAP and such current accruals 22 through March 31, 1996 are duly and fully provided for in the Interim Financial Statements of such entity for the period then ended. (xvi) All Foreign Plans are duly registered where required by all applicable laws, and any regulations thereunder, and no events have occurred or conditions exist that could materially jeopardize such status. All Foreign Plans are in material compliance and have been maintained and are properly funded in accordance with their terms and applicable law in all material respects. In the aggregate, there exists no unfunded actuarial liabilities or solvency deficiencies with respect to Foreign Plans. Neither the Company nor any of its Subsidiaries have removed any actuarial surplus nor has any surplus ever been used to offset any contributions obligations of the Company or any of its Subsidiaries under any Foreign Plan. (j) Absence of Certain Changes or Events. Except as disclosed in the Company SEC Documents filed prior to the date of this Agreement or as set forth on Schedule 4.1(j), since December 31, 1995, the business of the Company has been carried on only in the ordinary and usual course and there has not been (i) any change in its business, operations or financial condition which has resulted in or reasonably could be expected to result in a Material Adverse Effect with respect to the Company, (ii) any declaration, setting aside or payment of any dividend or other distribution with respect to any capital stock of the Company (except for cash distributions payable with respect to the Preferred Securities in accordance with their present terms), (iii) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (iv) any redemption, repurchase or other acquisition by the Company or any of its Subsidiaries of any equity security of the Company, (v) other than with respect to directors, officers and executive employees employed outside of the United States, (A) any granting by the Company or any of its Subsidiaries to any director, officer or executive employee of the Company or any of its Subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice, as disclosed in Schedule 4.1(j), or as was required under employment agreements listed on Schedule 4.1(n)(i) hereto as in effect as of December 31, 1995, (B) any granting by the Company or any of its Subsidiaries to any such Person of any increase in severance or termination pay or any agreement or commitment to increase severance or termination pay, except (x) in the ordinary course of business consistent with past practice, (y) as was required under employment, severance or termination agreements listed on Schedule 4.1(n)(i) hereto as in effect as of December 31, 1995 or (z) as disclosed in Schedule 4.1(j) or (C) any entry by the Company or any of its Subsidiaries into any employment, severance or termination agreement with any such Person, other than "at-will" employment agreements terminable by the Company without penalty or cost at any time, with or without cause, on not more than 30 days prior notice ("At-Will Employment Agreements") and providing for total annual compensation (including salary and bonus) of less than $100,000, (vi) any damage, destruction or loss, whether or not covered by insurance, that has or reasonably could be expected to have a Material Adverse Effect with respect to 23 the Company, (vii) any change in accounting methods, principles or practices by the Company, except insofar as may have been required by a change in GAAP or (viii) any other event that would have required Parent's consent under Section 5.1 had this Agreement been in effect on and after December 31, 1995. (k) No Undisclosed Material Liabilities. Except as set forth in the Company SEC Documents filed prior to the date of this Agreement or in the Interim Financial Statements, and except for liabilities and obligations incurred in the ordinary course of business consistent with past practice since March 31, 1996 that are not in the aggregate material, neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto. Except as specifically and individually set forth on Schedule 4.1(k) or the other schedules hereto (specific reference to which shall be made on Schedule 4.1(k)), as of the date hereof, there are no liabilities of the Company or any Subsidiary of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, that are reasonably likely to have a Material Adverse Effect with respect to the Company, other than (i) liabilities reflected on the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996 and the Company's Annual Report on Form 10-K for the year ended December 31, 1995 and (ii) liabilities under this Agreement. As of the date hereof, there is no pending claim by any director or officer of the Company or any of its Subsidiaries for indemnification by the Company or any of its Subsidiaries, and no director or officer has indicated to the Company or any of its Subsidiaries his or her intention to assert any such claim. (l) Opinion of Financial Advisor. The Company has received the opinion of Alex Brown dated May 20, 1996, to the effect that, as of the date hereof, the Offer Consideration to be received by the holders of Company Common Stock in the Offer and the Merger as contemplated in this Agreement is fair from a financial point of view to such holders, a signed, true and complete copy of which opinion has been delivered to Parent, and such opinion has not been withdrawn or modified. (m) Vote Required. In the event that Section 253 of the DGCL is inapplicable and unavailable to effectuate the Merger, the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock is the only vote of the holders of any class or series of the Company's capital stock or other securities necessary (under applicable law or otherwise) to approve the Merger and this Agreement and the transactions contemplated hereby. (n) Labor Matters. (i) Except as set forth on Schedule 4.1(n)(i) hereto and other than At-Will Employment Agreements, neither the Company nor any of its Subsidiaries is a party to any 24 employment, severance, consulting, change of control or other compensation contracts or any indemnification agreements entered into in connection with any employment or consulting arrangements (collectively, "Employment Agreements"), or any labor or collective bargaining agreement, in each case involving expenditures in excess of $100,000 annually. The Company has heretofore made available to Parent true and complete copies of (A) the Employment Agreements listed on Schedule 4.1(n)(i) and (B) the labor or collective bargaining agreements listed on Schedule 4.1(n)(i), together with all amendments, modifications, supplements and side letters affecting the duties, rights and obligations of any party thereunder. (ii) Except as set forth in Schedule 4.1(n)(ii), no employees of the Company or any of its Subsidiaries are represented by any labor organization; no labor organization or group of employees of the Company or any of its Subsidiaries has made a pending demand for recognition or certification, and, to the Company's knowledge, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To the knowledge of the Company, there are no organizing activities involving the Company or any of its Subsidiaries pending with any labor organization or group of employees of the Company or any of its Subsidiaries. (iii) Except as set forth on Schedule 4.1(n)(iii), there are no unfair labor practice charges, grievances or complaints pending or, to the Company's knowledge, threatened in writing by or on behalf of any employee or group of employees of the Company or any of its Subsidiaries. (iv) Except as set forth on Schedules 4.1(n)(iii) and 4.1(n)(iv) hereto, there are no complaints, charges or claims against the Company or any of its Subsidiaries pending, or, to the Company's knowledge, threatened in writing to be brought or filed, with any Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or any of its Subsidiaries. (v) Except as set forth on Schedule 4.1(n)(v) hereto, the Company and each of its Subsidiaries is in compliance with all laws and orders relating to the employment of labor, including all such laws and orders relating to wages, hours, collective bargaining, discrimination, civil rights, safety and health workers' compensation and the collection and payment of withholding and/or Social Security taxes and similar taxes except where the failure to so comply, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect with respect to the Company. (vi) Notwithstanding the foregoing, the representations set forth in clauses (i), (ii), (iii) and (iv) of this Section 4.1(n) shall not apply to employees of the Company 25 employed outside of the United States or any agreements or labor matters with respect to such non-U.S. Persons. (o) Intangible Property. (i) Schedule 4.1(o) sets forth a list of all software utilized by the Company or any of its Subsidiaries that is not owned by the Company or any of its Subsidiaries (the "Third Party Software"), other than (A) commercially available software and (B) software that has been developed by the Company or such Subsidiaries for use by a customer of such company and that is not otherwise utilized by the Company or any of its Subsidiaries in its business. Each material trademark, trade name, patent, service mark, brand mark, brand name, computer program, database, industrial design and copyright owned, used or useful in connection with the operation of the businesses of each of the Company and its Subsidiaries (collectively, the "Company Intangible Property") is owned by the Company or its Subsidiaries free and clear of any and all liens, claims or encumbrances. The use of the Company Intangible Property and the Third Party Software by the Company or its Subsidiaries does not conflict with, infringe upon, violate or interfere with or constitute an appropriation of any right, title, interest or goodwill, including, without limitation, any intellectual property right, trademark, trade name, patent, service mark, brand mark, brand name, computer program, database, industrial design, copyright or any pending application therefor of any other Person and there have been no claims made and neither the Company nor any of its Subsidiaries has received any notice of any claim or otherwise knows that any of the Company Intangible Property is invalid or conflicts with the asserted rights of any other Person or has not been used or enforced or has failed to be used or enforced in a manner that would result in the abandonment, cancellation or unenforceability of any of the Company Intangible Property. (ii) Each of the Company and its Subsidiaries own or have a right to use all Company Intangible Property and Third Party Software necessary for the operation of its respective business and has not forfeited or otherwise relinquished any Company Intangible Property or right to use Third Party Software. (iii) Each of the material licenses or other contracts relating to the Company Intangible Property and Third Party Software (collectively, the "Company Intangible Property Licenses") is in full force and effect and is valid and enforceable in accordance with its terms, and there is no default under any Company Intangible Property License either by the Company or any of its Subsidiaries or, to the knowledge of the Company, by any other party thereto. 26 (p) Environmental Matters. (i) For purposes of this Agreement: (A) "Environmental Costs and Liabilities" means any and all losses, liabilities, obligations, damages, fines, penalties, judgments, actions, claims, costs and expenses (including, without limitation, the reasonable fees, disbursements and expenses of legal counsel, experts, engineers and consultants and the costs of investigation and feasibility studies and Remedial Action (as defined below)) arising from or under any Environmental Law (as defined below) or any order, agreement or contract with any governmental authority or other person; (B) "Environmental Law" means any applicable federal, state, local or foreign law (including common law), statute, regulation, code, ordinance, rule, regulation, governmental order or other legal requirement, and any administrative interpretation thereof, regulating or prohibiting Releases (as defined below) or threatened Releases or pertaining to pollution or the protection of natural resources, the environment and public and employee health and safety including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.) ("CERCLA"), the Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Clean Water Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act (33 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 7401 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 et seq.), and the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.) ("OSHA") and the regulations promulgated pursuant thereto, as such laws have been and may be amended or supplemented through the Closing Date; (C) "Hazardous Material" means any substance, material or waste which is regulated by any public or governmental authority in the jurisdictions in which the applicable party or its Subsidiaries conducts business, or the United States, including, without limitation, any material or substance or waste which is defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste" or "restricted hazardous waste," "solid waste," "contaminant," "toxic waste" or "toxic substance" under any provision of any Environmental Law and shall also include petroleum or any petroleum product; (D) "Release" means any release, spill, effluent, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or 27 migration of Hazardous Materials into any part of the indoor or outdoor environment, including, but not limited to, any property owned, operated or leased by the Company or any of its Subsidiaries; and (E) "Remedial Action" means all actions, including, without limitation, any capital expenditures, required by a governmental entity or required under any Environmental Law, or voluntarily undertaken to (I) clean up, remove, remediate, treat, or in any other way ameliorate or address any Hazardous Materials in the indoor or outdoor environment, (II) prevent the Release or threat of Release, or minimize the further Release of any Hazardous Material so it does not endanger or threaten to endanger natural resources, or the public health or welfare of the indoor or outdoor environment, (III) perform pre-remedial studies and investigations or post-remedial monitoring and care pertaining or relating to a Release or threat of Release, or (IV) bring the applicable party into compliance with any Environmental Law. (ii) The operations of the Company and its Subsidiaries have been and, as of the Closing Date, will be, in compliance with all Environmental Laws, except where the failure to so comply could not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $250,000 individually or $750,000 in the aggregate with respect to any of the operations of the Company or its Subsidiaries. (iii) The Company and its Subsidiaries have obtained and will, as of the Closing Date, maintain in full force and effect, and be in material compliance with all material permits, licenses, authorizations or other approvals required under applicable Environmental Laws for the continued operations of their respective businesses, except where failure to possess or comply could not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $250,000 individually or $750,000 in the aggregate or materially interfere with the anticipated operations of the Company and its Subsidiaries. (iv) The Company and its Subsidiaries are not subject to any outstanding orders, agreements or contracts with any Governmental Entity or other Person respecting (A) Environmental Laws, (B) Remedial Action or (C) any Release or threatened Release and to the knowledge of the Company none are threatened. (v) The Company and its Subsidiaries have not received any written communication alleging, with respect to any such party, the violation of or liability under any Environmental Law, which could reasonably be expected to result in material Environmental Costs and Liabilities. 28 (vi) Neither the Company nor any of its Subsidiaries has any contingent liability in connection with the Release of any Hazardous Material (whether on-site or off-site) which would reasonably be likely to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $250,000 individually or $750,000 in the aggregate. (vii) There is not now, nor to the knowledge of the Company, has there been on or in any property owned, operated or leased by the Company or its Subsidiaries any of the following, the presence of which could reasonably be expected to result, either individually or in the aggregate, in material Environmental Costs and Liabilities: (A) any underground storage tanks or surface impoundments, containing Hazardous Materials; (B) any asbestos-containing materials; or (C) any polychlorinated biphenyls. (viii) The Company has delivered to Parent copies of all environmental investigations, studies, audits, tests, reviews and other analyses, including soil and groundwater analysis, conducted by or on behalf of, or that are in the possession custody or control of the Company or any of its Subsidiaries, in relation to any site or facility owned or leased, at any time, by the Company or any of its Subsidiaries (collectively the "Sites") or any of their respective predecessors. (ix) None of the Sites are subject to any statutory land use regulation or prohibition under any Environmental Law or any law of any Governmental Authority relating to the protection of wetlands, woodlands and the like, which would prevent or significantly impair current or reasonably anticipated use and development of the Site. (x) Except as set forth on Schedule 4.1(p) hereto, there have been no citations, notices or complaints issued to any of the Company or any Subsidiary by the Occupational Safety and Health Administration or any state occupational safety and health administration since January 1, 1992. (xi) None of the operations of the Company or its Subsidiaries or of any of their predecessors, or, to the knowledge of the Company, of any owner of premises leased or operated by Company or any Subsidiary involves or previously involved the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. parts 260-270 or any state, local or foreign equivalent and neither the Company nor any of its Subsidiaries or any of their predecessors, nor any owner of premises leased or operated by the Company or its Subsidiaries has filed any notice under federal, state, local or foreign law indicating past or present treatment, storage, or disposal of, or reporting a Release of, Hazardous Materials. (xii) There are no judicial, administrative or arbitral actions, suits, proceedings (public or private) or governmental proceedings (collectively "Legal Proceedings") pending or, to the knowledge of the Company, threatened against the Company 29 or its Subsidiaries and, to the knowledge of the Company, there is no investigation pending or threatened, against the Company or its Subsidiaries alleging the violation of or seeking to impose liabilities pursuant to any Environmental Law, except for Legal Proceedings that do not or would not require disclosure under rules and regulations of the Securities and Exchange Commission and could not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $250,000 individually or $750,000 in the aggregate. (xiii) The Company and its Subsidiaries have not caused or suffered to occur any Release at, under, above, or within any real property owned or leased by the Company or any Subsidiary. (q) Real Property; Other Assets. (i) Schedule 4.1(q)(i) sets forth all of the real property owned in fee by the Company and its Subsidiaries (the "Owned Real Property"). Each of the Company and its Subsidiaries has good and marketable title to each parcel of Owned Real Property free and clear of all mortgages, pledges, liens, encumbrances and security interests, except (A) those reflected or reserved against in the balance sheet of the Company dated as of December 31, 1995 (the "Balance Sheet"), (B) taxes and general and special assessments not in default and payable without penalty and interest, and (C) other liens, mortgages, pledges, encumbrances and security interests which do not materially interfere with the Company's use and enjoyment of the Owned Real Property or Leased Real Property (as defined below), as applicable, or materially detract from or diminish the value thereof and, if related to a dollar amount, are reflected on the Balance Sheet (collectively "Permitted Liens"). (ii) Schedule 4.1(q)(ii) sets forth all leases, subleases and other agreements (the "Real Property Leases") under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real property (the "Leased Real Property"). The Company has heretofore delivered to Parent true, correct and complete copies of all Real Property Leases (including all modifications, amendments and supplements hereto). Each Real Property Lease is valid, binding and in full force and effect, all rent and other sums and charges payable by the Company and its Subsidiaries as tenants thereunder are current in all material respects, and no termination event or condition or uncured default of a material nature on the part of the Company or any such Subsidiary or, to the Company's knowledge, the landlord, exists under any Real Property Lease. Each of the Company and its Subsidiaries has a good and valid leasehold interest in each parcel of Leased Real Property free and clear of all mortgages, pledges, liens, encumbrances and security interests, except for Permitted Liens. (iii) The Company or one of its Subsidiaries has good and valid title to all its properties and assets, in each case free and clear of all liens, except (A) such as are set forth in Schedule 4.1(q)(iii), (B) mechanics', carriers', workmen's, repairmen's or other 30 similar liens arising or incurred in the ordinary course of business, (C) liens arising under conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (D) liens for taxes which are not due and payable or which may thereafter be paid without penalty, (E) liens which secure Indebtedness that is set forth on Schedule 4.1(s) and (F) other imperfections of title or encumbrances, if any, which do not, individually or in the aggregate, materially impair the continued use and operation of the assets to which they relate in the business of the Company and its Subsidiaries or materially impair the value of such assets. This paragraph (iii) does not relate to interests in real property, such items being the subject of paragraph (ii) above. (iv) Except for its Subsidiaries or as set forth on Schedule 4.1(q)(iv), the Company does not own, directly or indirectly, through any Subsidiaries or otherwise, any capital stock or other equity interests in any corporation, partnership, limited liability company, joint venture or other Person. (r) Insurance. Set forth on Schedule 4.1(r) is a list of insurance policies (including information on the premiums (other than premiums with respect to any insurance policies maintained outside of the United States) payable in connection therewith and the scope and amount of the coverage provided thereunder) maintained by the Company or any of its Subsidiaries. (s) Material Contracts. Set forth in Schedule 4.1(s) is a list of (i) all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any Indebtedness (as defined below) of the Company or any of its Subsidiaries in a principal amount in excess of $100,000 is outstanding or may be incurred, other than pursuant to performance bonds, performance guarantees or letters of credit securing performance granted in the ordinary course of business in each case for amounts not exceeding $5,000,000, indicating (A) with respect to any term or fixed loans, the respective principal amounts outstanding thereunder as of March 31, 1996, and (B) whether such Indebtedness is prepayable and any applicable prepayment or similar penalties, (ii) all agreements of the Company or any of its Subsidiaries involving annual payments in excess of $200,000 or aggregate payments in excess of $500,000, other than agreements of the type referred to in clause (iv) of this Section 4.1(s), (iii) (A) the twelve largest U.S. vendor contracts (measured by dollar purchase amount) of the Company and its Subsidiaries in the United States for fiscal 1995 and the name of each vendor agreement pursuant to which the Company or any of its Subsidiaries is currently making purchases in excess of $500,000 outside the United States; (iv) (A) all domestic contracts for the delivery of goods or services pursuant to which the Company and its Subsidiaries recognized revenues during fiscal 1995 of $1,000,000 or more or, with respect to domestic contracts of AmeriData Computer Rental Inc. or AmeriData Consulting, Inc., the top ten customers in fiscal year 1995 of each such Subsidiary, and (B) all foreign contracts pursuant to which the Company or any of its Subsidiaries is receiving payments of $500,000 or more, (v) all agreements ("Acquisition Agreements") pursuant to which the Company or any of its Subsidiaries has acquired, or 31 agreed to acquire, all or a substantial portion of the assets of or equity interests in any corporation, partnership or other entity (or any Subsidiary, division or business thereof), (vi) all agreements pursuant to which the Company or any of its Subsidiaries has merged with or into, or agreed to merge with or into, any other Person, (vii) all agreements pursuant to which the Company or any of its Subsidiaries has disposed of, or agreed to dispose of, any business or Subsidiary or all or a substantial portion of the assets of any business or Subsidiary, (viii) all commitments of the Company or any Subsidiary for capital expenditures in excess of $100,000 individually or $500,000 in the aggregate per month, excluding MIS and rental inventory purchases, (ix) all agreements of the Company or any of its Subsidiaries containing an unexpired covenant not to compete or similar restriction applying to the Company or any of its Subsidiaries or affiliates or, to the Company's knowledge, any of their respective officers or directors (other than covenants of such officers or directors not to compete with the Company or any of its Subsidiaries), (x) any interest rate, currency or commodity hedging, swap or similar derivative transaction, (xi) all contracts, agreements or arrangements with holders of equity interests in Subsidiaries of the Company, (xii) all agreements or arrangements to which the Company or any Subsidiary is a party providing for the escrow of any assets (including, without limitation, cash or securities) of the Company or any of its Subsidiaries or any other Person and (xiii) any other contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-K filed by the Company with the SEC as of the date of this Agreement. Except as set forth in Schedule 4.1(s), each of the agreements listed in Schedule 4.1(s) and each Employment Agreement is a valid and binding obligation of the Company or a Subsidiary of the Company, as the case may be, and, to the Company's knowledge, of each other party thereto, and each such agreement is in full force and effect and is enforceable by the Company or a Subsidiary of the Company in accordance with its terms, except that the enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). There are no existing defaults (or circumstances or events that, with the giving of notice or lapse of time or both, would become defaults) of the Company or any of its Subsidiaries (or, to the knowledge of the Company, any other party thereto) under any of the agreements listed in Schedule 4.1(s) or any Employment Agreement except for defaults that have not and are not reasonably likely to, individually or in the aggregate, have a Material Adverse Effect with respect to the Company. Except as set forth on Schedule 4.1(s) under the heading "Contingent Payments", the Company has no undischarged obligations (other than contingent indemnification obligations) for the payment of any deferred consideration pursuant to any Acquisition Agreement, or any undischarged obligations to make any payment to any third party that is contingent upon the financial performance of the Company or any of its Subsidiaries (other than obligations pursuant to employee benefit plans that are based upon the performance of the particular employees participating therein). For purposes of this Agreement, "Indebtedness" means, with respect to any Person, without duplication, (A) all obligations of such Person for borrowed money, or with 32 respect to deposits or advances of any kind, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such Person upon which interest charges are customarily paid (other than trade payables incurred in the ordinary course of business), (D) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (E) all obligations of such Person issued or assumed as the deferred purchase price of property or services (exclud- ing obligations of such Person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such Person's business), (F) all lease obligations of such Person capitalized on the books and records of such Person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such Person under interest rate, or currency or commodity hedging, swap or similar derivative transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such Person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (J) all guarantees and arrangements having the economic effect of a guarantee of such Person of any indebtedness of any other Person. (t) Related Party Transactions. Except as set forth on Schedule 4.1(t) hereto or in the Company's proxy statement, dated April 4, 1996, no director, officer, partner, employee, "affiliate" or "associate" (as such terms are defined in Rule 12b-2 under the Exchange Act) of the Company or any of its Subsidiaries (i) has loaned or otherwise advanced money to, or has outstanding any Indebtedness or other similar obligations to, the Company or any of its Subsidiaries, in each case in an amount exceeding $60,000; (ii) owns any direct or indirect interest of any kind in, or is a director, officer, employee, partner, affiliate or associate of, or consultant or lender to, or borrower from, or has the right to participate in the management, operations or profits of, any Person or entity which is (A) a competitor, supplier, customer, distributor, lessor, tenant, creditor or debtor of the Company or any of its Subsidiaries, (B) engaged in a business related to the business of the Company or any of its Subsidiaries or (C) participating in any transaction to which the Company or any of its Subsidiaries is a party involving an amount in excess of $60,000 or goods or services having a value in excess of $60,000 or (iii) is otherwise a party to any contract, arrangement or understanding with the Company or any of its Subsidiaries for or involving an amount in excess of $60,000 or goods or services having a value in excess of $60,000. (u) Liens. Except as set forth on Schedule 4.1(u) and other than liens, including but not limited to liens under Environmental Law, mortgages, security interests, pledges and encumbrances which do not materially interfere with the Company's use and enjoyment of real property or materially diminish or detract from the value thereof, neither the Company nor any of its Subsidiaries has granted, created or suffered to exist with respect to any of its assets, any mortgage, pledge, charge, hypothecation, collateral assignment, lien (statutory or otherwise), encumbrance or security agreement of any kind or nature whatsoever. 33 (v) Brokerage Fees and Commissions; Other Fees. Except for Alex Brown (a copy of whose engagement letter with the Company has been furnished to Parent) and Am- Tech Corporation ("Am Tech") and Triumph Capital Group, Inc. ("Triumph"), no Person or entity is entitled to receive from the Company or any of its Subsidiaries any investment banking, brokerage or finder's fee or fees for financial consulting or other advisory services in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by or on behalf of the Company or any of its Subsidiaries. The aggregate fees required to be paid by the Company or any of its Subsidiaries to each of Alex Brown, Am Tech and Triumph and each other Person listed on Schedule 4.1(v) in connection with this Agreement and the transactions contemplated hereby will not exceed the amounts set forth on Schedule 4.1(v) with respect to each such Person. (w) No Excess Parachute Payments. Except as set forth in Schedule 4.1(w), any amount that could be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as such term is defined in Section 280G(b)(1) of the Code). (x) State Takeover Statutes. The Board of Directors of the Company has approved this Agreement and the Stockholders Agreement and the transactions contemplated hereby and thereby, including the Merger, and such approval is sufficient to render the provisions of Section 203 of the DGCL inapplicable to the Merger, this Agreement, the Stockholders Agreement and the other transactions contemplated by this Agreement. No other state takeover statute or similar statute or regulation applies or purports to apply to the Merger, this Agreement, the Stockholders Agreement or the other transactions contemplated by this Agreement or the Stockholders Agreement. (y) Pending and Proposed Transactions. Except as set forth on Schedule 4.1(y), neither the Company nor any of its Subsidiaries has entered into any agreement, whether oral or written, with respect to, or is engaged in negotiations with respect to, the acquisition (whether by purchase of assets or securities, or by merger or otherwise) or disposition of all or a substantial portion of the business of any Subsidiary or any business or division of the Company or any of its Subsidiaries. (z) Media Interests. SBC Technologies, Inc. holds a limited partner interest in Radio Equity Partners, Limited Partnership (the "REP Interest"). SBG Communications Corp. owns the non-license assets of the radio stations WACO-AM and WACO-FM, located in Waco, Texas (the "WACO Stations"), and SBG Communications of Texas, Inc. is the licensee of, and operates, the WACO Stations. Sage Broadcasting Corp. of Vermont owns and operates the radio station WVMX (the "Vermont Station" and, together with the WACO 34 Stations, the "Radio Stations"). Except for the Radio Stations and the REP Interest, neither the Company nor any of its Subsidiaries has any direct or indirect interest in any radio, television, cable or other business subject to regulation by the FCC, except SBC Technologies, Inc. holds certain notes issued by Americus Communications #1 Limited Partnership and Muzzy Broadcasting, LLC, and two additional promissory notes in the aggregate principal amount of approximately $440,000 (none of which notes constitute an attributable ownership interest in a media property within the meaning of or subject to the regulations of the FCC). Other than the WACO Stations and the Vermont Station and the licenses, equipment and other assets related thereto, neither SBG Communications Corp. nor Sage Broadcasting Corp. of Vermont own or operate any other businesses or material assets or, other than SBG Communications of Texas, Inc., have any direct or indirect Subsidiaries. Except with respect to the Radio Stations, none of the Company or any of its Subsidiaries owns or holds any media licenses issued by the FCC or any state or federal authority requiring the prior approval of such authority of any transfer of control. 4.2 Representations and Warranties of Parent and Sub. Parent and Sub represent and warrant to the Company as follows: (a) Organization, Standing and Power. Each of Parent and Sub is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. (b) Authority; No Violations; Consents and Approvals. (i) Each of Parent and Sub has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent and Sub. This Agreement has been duly executed and delivered by each of Parent and Sub and, assuming this Agreement constitutes the valid and binding agreement of the Company, constitutes a valid and binding obligation of Parent and Sub enforceable in accordance with its terms except that the enforcement hereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). (ii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by each of Parent and Sub will not result in any Violation pursuant to any provision of the Articles of Incorporation or Bylaws (or comparable governing instruments) of Parent or Sub. (iii) No consent, approval, order or authorization of, or registration, declaration or filing with, notice to, or permit from any Governmental Entity is required by or 35 with respect to Parent or Sub in connection with the execution and delivery of this Agreement by each of Parent and Sub or the consummation by each of Parent or Sub of the transactions contemplated hereby, which the failure to obtain or make would have a material adverse effect on the ability of Parent or Sub to consummate the transactions contemplated by this Agreement, except for: (A) filings under the HSR Act; (B) the filing with the SEC of (I) the Schedules 14D-1 and 14F-1, respectively, in connection with the commencement and consummation of the Offer and (II) such reports under and such other compliance with the Exchange Act and the rules and regulations thereunder, as may be required in connection with this Agreement and the transactions contemplated hereby; (C) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware; and (D) such filings and approvals as may be required by any foreign pre-merger notification, securities, corporate or other law, rule or regulation. (c) Interim Operations of Sub. Sub was formed solely for the purpose of engaging in the transactions contemplated hereby and has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated hereby. (d) Information Supplied. None of the information relating to Parent and its affiliates supplied in writing by Parent specifically for inclusion in the Schedule 14D-9 will, at the time the Schedule 14D-9 is filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time Parent should become aware of any event relating to Parent or any of its Subsidiaries that is required by applicable law to be set forth in an amendment of, or supplement to, the Schedule 14D-9, Parent shall promptly so inform the Company and will furnish to the Company all information relating to such event that is required under applicable law to be disclosed in an amendment or supplement to the Schedule 14D-9. The Schedule 14D-1 will comply as to form in all material respects with the requirements of the Exchange Act, and shall not, when filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no agreement or representation hereby is made or shall be made by Parent or Sub with respect to information supplied by the Company in writing expressly for inclusion in, or with respect to Company information derived from the Company's public SEC filings which is included or incorporated by reference in, the Schedule 14D-1. (e) Brokerage Fees and Commissions. Except for Lazard, Freres & Co. LLC, no Person or entity is entitled to receive from Parent or Sub any investment banking, brokerage or finder's fee or fees for financial consulting or other advisory services in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by or on behalf of Parent or Sub. 36 (f) Financial Capability. Parent has sufficient available cash and marketable securities to consummate the transactions contemplated hereby. ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS 5.1 Covenants of the Company. During the period from the date of this Agreement and continuing until the Effective Time, the Company agrees that (except as Parent shall otherwise consent in writing): (a) Ordinary Course. The Company shall, and shall cause each of its Subsidiaries to, carry on their businesses in the ordinary course in substantially the same manner as heretofore conducted and shall use all reasonable efforts to preserve intact its present business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries to, comply with the provisions of Sections 5.1(b) through 5.1(r) below. (b) Dividends; Changes in Stock. The Company shall not, and shall not permit any of its Subsidiaries to: (i) declare or pay any dividends on or make other distributions in respect of any of its capital stock, except for cash dividends or distributions paid on or with respect to the capital stock of a wholly-owned Subsidiary of the Company and except for cash distributions payable with respect to the Preferred Securities in accordance with their present terms; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock; or (iii) redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or otherwise acquire, or permit any Subsidiary to purchase or otherwise acquire, any shares of its capital stock. (c) Issuance of Securities. Except as set forth in Schedule 5.1(c), the Company shall not, and shall not permit any of its Subsidiaries to, (i) grant any options, warrants or rights to purchase shares of Company Common Stock, (ii) amend or reprice any Option or Warrant or the Stock Option Plans or the Rights or the Stock Purchase Plan, or (iii) issue, deliver or sell, or pledge or otherwise encumber, or authorize or propose to issue, deliver or sell, or pledge or otherwise encumber, any shares of its capital stock of any class or series, any Company Voting Debt or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, Company Voting Debt or convertible or exchangeable securities, other than the issuance of Company Common Stock upon (A) the exercise of Options outstanding on the date of this Agreement in accordance with their present terms, (B) the exercise of the Warrants outstanding on the date of this 37 Agreement in accordance with their present terms, (C) the exercise of Rights pursuant to the Stock Purchase Plan in accordance with their present terms, and (D) the conversion of the Subordinated Debentures by the holders thereof in accordance with their present terms. (d) Governing Documents. The Company shall not, and shall not permit any of its Subsidiaries to, amend or propose to amend its Certificate of Incorporation or Bylaws, or other comparable constituent documents. (e) No Solicitation. (i) From and after the date hereof until the termination of this Agreement, the Company shall not, and shall not authorize or permit any of its Subsidiaries, or any of its or their officers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries), to, directly or indirectly, initiate, solicit or encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any Person in furtherance of such inquiries or to obtain or with respect to an Acquisition Proposal or agree to or endorse any Acquisition Proposal, provided, however, that prior to the Company Stockholders Meeting (as defined in Section 6.1(b)), if in the good faith opinion of the Board of Directors of the Company, based on the advice of outside legal counsel, the failure to proceed in accordance with clause (A) and/or (B) below of this Section 5.1(e)(i) would violate its fiduciary duties to the Company's stockholders under applicable law, the Company may, subject to compliance with Section 5.1(e)(iv), in response to an unsolicited written bona fide Acquisition Proposal that in the good faith opinion of the Board of Directors, based on the advice of an independent nationally recognized financial advisor and outside legal counsel, would reasonably be expected to result in a Superior Proposal (as defined below), (A) furnish information with respect to the Company to such Person making such proposal pursuant to a customary confidentiality agreement with such Person and (B) participate in negotiations regarding such Acquisition Proposal; provided that, in the case of clauses (A) and (B) above, the Company has provided a written notice to Parent of its intention to proceed under such clause (A) or (B) above. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any director or executive officer of the Company or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of the Company or any of its Subsidiaries, acting on behalf or under authority of the Company or any Subsidiary of the Company, shall be deemed to be a breach of this Section 5.1(e)(i) by the Company. For purposes of this Agreement, "Acquisition Proposal" shall mean an inquiry, offer or proposal regarding any of the following (other than the transactions between the Company, Parent and Sub contemplated hereunder) involving the Company or any of its Subsidiaries: (w) any merger, consolidation, share exchange, recapitalization, business combination, or other similar transaction; (x) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets of the Company and its Subsidiaries, taken as a whole, in a single 38 transaction or series of transactions; (y) any tender offer or exchange offer for or other purchase of 20% or more of the outstanding shares of capital stock of the Company or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Except as set forth in this Section 5.1(e)(ii), neither the Board of Directors of the Company nor any committee thereof shall (A) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Sub, the approval or recommendation by such Board of Directors or any such committee of the Merger or this Agreement, (B) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (C) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Company Stockholders Meeting, if in the good faith opinion of the Board of Directors, based on the advice of outside counsel, the failure to proceed in accordance with clause (x), (y) and/or (z) below of this Section 5.1(e)(ii) would violate its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors may (subject to the terms of this sentence and the following sentence) (x) withdraw or modify its recommendation of the Merger or this Agreement, (y) approve or recommend a Superior Proposal, and (z) cause the Company to enter into an agreement with respect to a Superior Proposal, in each case at any time following Parent's receipt of a written notice advising Parent that the Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal; provided that the Company shall not take any of the actions specified in such clauses (x), (y) or (z) unless the Company shall have furnished Parent with written notice (a "Section 5.1(e)(i) Notice") specifying such actions to be taken no later than 12:00 noon New York City time four business days prior to the date such actions are proposed to be taken and shall not take any of the actions set forth in clauses (y) or (z) above if, after taking into account modifications to this Agreement proposed by Parent, such Acquisition Proposal would not be a Superior Proposal. In addition, if the Board of Directors or the Company proposes to take any of the actions permitted by the preceding sentence with respect to any Acquisition Proposal, then the Company shall, prior to taking such action, pay, or cause to be paid, to Parent the Termination Payment (as defined in Section 6.4), and, in the case of clauses (y) and (z), cause the Person making the superior proposal to acknowledge such obligations. (iii) The term "Superior Proposal" shall mean any bona fide Acquisition Proposal that has the following characteristics: (x) it is a proposal to acquire, directly or indirectly, for consideration consisting of cash and/or readily marketable securities, (A) shares of Company Common Stock representing 100% of the voting power of (I) the outstanding shares of Company Common Stock, (II) the shares of Company Common Stock issuable upon (aa) the conversion of the Subordinated Debentures, (bb) the exercise of the Options outstanding and (cc) the exercise of the Warrants outstanding, or (B) all or substantially all the assets of the Company, (y) the terms of such proposal in the good faith judgment of the 39 Board of Directors of the Company (based on the written opinion of an independent financial advisor of nationally recognized reputation) provide a per share consideration to the Company's stockholders which is higher than the per share consideration provided by the Merger (after taking into account any modifications to this Agreement proposed by Parent) and (z) the transactions envisioned by such proposal, in the good faith judgment of the Board of Directors of the Company, based on the advice of an independent nationally recognized financial advisor and outside legal counsel, is readily financeable and reasonably likely to be consummated without unreasonable delay or unusual conditions compared to the transactions contemplated by this Agreement. (iv) In addition to the obligations set forth in clause (ii) of this Section 5.1(e), the Company shall immediately advise Parent orally and in writing of any request for information which may relate to an Acquisition Proposal or of any Acquisition Proposal, or any inquiry with respect to or which could lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making any such request, Acquisition Proposal or inquiry. The Company will keep Parent fully and timely informed of the status and details (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. (f) No Acquisitions. The Company shall not, and shall not permit any of its Subsidiaries to, acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or (ii) any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries as a whole. (g) No Dispositions. Other than as set forth on Schedule 5.1(g) hereto and dispositions in the ordinary course of business consistent with past practice which are not (except for sales of inventory) material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, the Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, encumber or otherwise dispose of, or agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of, any of its assets. (h) Advice of Changes; SEC Filings. The Company shall confer with Parent to the extent reasonably requested by Parent, report on operational matters and promptly advise Parent orally and in writing of any change or event having, or which, insofar as reasonably can be foreseen, could have, a Material Adverse Effect on the Company. The Company shall promptly provide Parent (or its counsel) with copies of all filings made by the Company with the SEC or any other state, federal or foreign Governmental Entity in connection with this Agreement and the transactions contemplated hereby. 40 (i) No Dissolution, Etc. The Company shall not authorize, recommend, propose, adopt or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its Subsidiaries, other than the dissolutions of Dormant Subsidiaries. (j) Other Actions. Except as provided by this Agreement, the Company will not and will cause its Subsidiaries not to take or agree or commit to take any action that is reasonably likely to result in any of the Company's representations or warranties hereunder being untrue in any material respect or in any of the conditions to the Merger not being satisfied. (k) Certain Employee Matters. Except as set forth on Schedule 5.1(k) hereto, the Company and its Subsidiaries shall not (without the prior written consent of Parent): (i) grant any increases in the compensation of any of its directors, officers or key employees, other than regularly scheduled increases representing (in the case of all directors and officers, and all key employees whose annual compensation (including salary and bonus) exceeds $100,000) an aggregate increase for any such Person of not more than 5%; (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing Company Benefit Plans or Company Pension Plans as in effect on the date hereof to any such director, officer or key employee, whether past or present; (iii) enter into any new, or materially amend any existing, employment or severance or termination agreement with any such director, officer or key employee, other than At-Will Employment Agreements providing for total annual compensation (including salary and bonus) of less than $100,000; or (iv) terminate or amend the employment agreements of Messrs. Poch and McCleary or the employment or advisory agreement with Mr. Fassler; or (v) except as may be required to comply with applicable law, become obligated under any new Company Employee Benefit Plan or Company Pension Plan, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof if such amendment would have the effect of materially enhancing any benefits thereunder. (l) Indebtedness; Advances. The Company shall not, and shall not permit any of its Subsidiaries to, (i) other than Indebtedness under capital leases, entered into as permitted under Section 5.1(o), assume or incur any Indebtedness for borrowed money (other than pursuant to credit facilities existing on the date hereof in accordance with their present terms) or guarantee any such Indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of others or enter into any lease (whether such lease is an operating or capital lease) or create any mortgages, liens, security interests or other encumbrances on the assets or property of the Company or any of its Subsidiaries in connection with any Indebtedness thereof (other than security interests arising pursuant to mortgages or other security agreements in effect on the date hereof covering credit facilities existing on the date hereof), or enter into any "keep well" or other agreement or arrangement to maintain the financial condition of another Person, or (ii) make any loans, advances or 41 capital contributions to, or investments in, any other Person, other than to the Company or any direct or indirect wholly owned Subsidiary of the Company and other than loans or advances to customers and employees in the ordinary course of business consistent with past practice. (m) Material Contracts. The Company shall not, and shall not permit any of its Subsidiaries to, enter into, modify, rescind, terminate, waive, release or otherwise amend in any material respect any of the terms or provisions of any contract, agreement, commitment, arrangement or right listed on Schedule 4.1(s) hereto or which, if such contract, agreement, arrangement or right had existed as of the date of this Agreement, would have been required to be listed on Schedule 4.1(s); provided, however, that the foregoing shall not limit the right of the Company or any of its Subsidiaries to enter into any contracts of the type referred to in Section 4.1(s)(iv) in the ordinary course of business consistent with past practice and involving annual payments of not more than $5,000,000. (n) Accounting. The Company will, and will cause each of its Subsidiaries to, maintain its books and records in the usual manner and consistent with past practice and not permit a material change in any of its financial reporting, tax, or accounting practices or policies or in any assumption underlying such practices or policies, or in any method of calculating any bad debt, contingency, or other reserve for financial reporting purposes or for other accounting purposes, except as may be required by GAAP or applicable law. (o) Capital Expenditures. Except as set forth on Schedule 5.1(o) and except for capital expenditures for MIS and rental inventory purchases, the Company shall not make or authorize nor shall the Company permit any of its Subsidiaries to make or authorize any capital expenditures in excess of $100,000 individually and $500,000 in the aggregate per month. (p) Tax Matters. If any income tax return of the Company or any Subsidiary that has not yet been filed is required to be filed on or prior to the Effective Time, the Company or its Subsidiaries, as the case may be, shall prepare and timely file such tax return in a manner consistent with prior years and all applicable laws and regulations (or shall obtain a valid extension of time in which to make such filings). The Company shall not, and shall not permit any of its Subsidiaries to, make any tax election or settle or compromise any material tax liability. (q) Discharge of Liabilities. The Company shall not, and shall not permit any of its Subsidiaries to, pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of any of its liabilities or obligations, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party. 42 (r) Agreement to Take Action. The Company shall not, and shall not permit any of its Subsidiaries to, authorize any of, or commit or agree to take any of, the foregoing actions. (s) Notices of Certain Events. The Company shall promptly notify Parent of: (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; (ii) any notice or other communication from any Governmental Entity in connection with the transactions contemplated by this Agreement; and (iii) any actions, suits, claims, investigations or proceedings commenced or, to the best of its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any Subsidiary which, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 4.1(g) or which relate to the consummation of the transactions contemplated by this Agreement. ARTICLE VI ADDITIONAL AGREEMENTS 6.1 Preparation of the Proxy Statement; Company Stockholders Meeting; Merger without a Company Stockholders Meeting. (a) As soon as practicable following the acceptance for payment of and payment for shares of Company Common Stock by Sub in the Offer, the Company and Parent shall prepare and file with the SEC the Proxy Statement. The Company shall use its best efforts to respond to all SEC comments with respect to the Proxy Statement and to cause the Proxy Statement and the form of proxy, which shall comply as to form with all applicable laws, to be mailed to the Company's stockholders at the earliest practicable date. (b) The Company will, as soon as practicable following the acceptance for payment of and payment for shares of Company Common Stock by Sub in the Offer, duly call, give notice of, convene and hold a stockholders meeting (the "Company Stockholders Meeting") for the purpose of approving this Agreement and the transactions contemplated hereby. At the Company Stockholders Meeting, the Board of Directors of the Company will recommend to its stockholders the adoption and approval of this Agreement and the transactions contemplated hereby. (c) Notwithstanding the foregoing clauses (a) and (b), in the event that Parent or any other Subsidiary of Parent shall acquire at least 90% of the outstanding shares 43 of Company Common Stock in the Offer, the parties hereto agree, at the request of Sub, to take all necessary and appropriate action to cause the Merger to become effective, as soon as practicable after the expiration of the Offer, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL. (d) Subject to Section 6.1(c) above, Parent shall (i) cause Sub promptly to submit this Agreement and the transactions contemplated hereby for approval and adoption by the written consent of its sole stockholder; (ii) cause the shares of capital stock of Sub to be voted for adoption and approval of this Agreement and the transactions contemplated hereby; and (iii) cause to be taken all additional actions necessary for Sub to adopt and approve this Agreement and the transactions contemplated hereby. 6.2 Access to Information. The Company shall (and shall cause each of its Subsidiaries to) afford to the officers, employees, accountants, counsel and other representatives of the Parent access, during normal business hours and in a manner so as to not unreasonably interfere with the conduct of the business of the Company during the period prior to the Effective Time, to all of the personnel, properties, books, contracts, commitments and records (including, without limitation, tax returns) of the Company and its Subsidiaries and to use its commercially reasonable efforts to cause the Company's and its Subsidiaries' independent accountants to provide access to their work papers and such other information as the Parent or Subsidiary may reasonably request and, during such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to the Parent (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to SEC requirements and (b) all other information concerning its business, properties and personnel as the Parent may reasonably request. Parent agrees that it will not, and will cause its representatives not to, use any information obtained pursuant to this Section 6.2 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement, and will hold confidential, and will cause its officers, employees, accountants, counsel, financial advisors and other representatives and affiliates to hold confidential, all such information in accordance with the Confidentiality Agreement, dated February 15, 1996, between GE Capital Technology Management Services and the Company (the "Confidentiality Agreement"). 6.3 Legal Conditions to Merger. Each of the Company, Parent and Sub will take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on such party with respect to the Offer, the Merger (including furnishing all information required under the HSR Act and in connection with approvals of or filings with any other Governmental Entity) and the Stockholders Agreement and will promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or any of their Subsidiaries in connection with the Offer, the Merger and the Stockholders Agreement; provided, however, that Parent need not so comply if required by the Department of Justice or any other Governmental Entity to hold separate, sell or otherwise dispose of any Subsidiary of Parent or the Company or assets or 44 properties of any of the foregoing, or to agree to any conditions deemed by Parent to be adverse to it or the Company (or any of their respective Subsidiaries). The Company will, and will cause its Subsidiaries to, take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party, required to be obtained or made by the Company or any of its Subsidiaries in connection with the Offer, the Merger, the Stockholders Agreement or the taking of any action contemplated hereby or thereby. 6.4 Fees and Expenses. (a) Except as otherwise provided in this Section 6.4, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense. (b) The Company shall immediately pay, or cause to be paid, in same day funds to Parent the Termination Payment (as defined below) upon demand if (A) Parent terminates this Agreement in accordance with Section 8.1(d), (B) the Company terminates this Agreement in accordance with Section 8.1(h) and/or Section 8.1(j), or (C) Parent or the Company terminates this Agreement in accordance with Section 8.1(f), 8.1(g) or 8.1(i) and prior to such termination a bona fide Acquisition Proposal shall have been made. "Termination Payment" shall mean the sum of (i) all of Parent's out-of-pocket expenses incurred in connection with the transactions contemplated by this Agreement (the "Expenses") and (ii) $10,000,000 (the "Termination Fee"); provided that if at or prior to the time the Termination Payment is payable the Company shall have entered into a definitive agreement with a third party for such third party to acquire the Company in a transaction which would qualify to be accounted for, under applicable guidelines of the SEC, as a pooling of interests transaction but for the size of the Termination Payment, then the amount of the Termination Payment shall be reduced to the extent necessary to enable such transaction to qualify as a pooling of interests (but in no event shall the Termination Payment be reduced below 1% of the transaction value). The amount of Expenses so payable shall be the amount set forth in an estimate delivered by Parent upon termination subject to upward or downward adjustment as provided in the next sentence. In the event that Parent's actual out-of-pocket expenses exceed such estimate, the amount of any such excess shall be payable upon demand, and in the event that Parent's actual expenses are less than the amount of such estimate, Parent shall promptly refund such lesser amount. Promptly after the date hereof, the Parent and the Company shall seek an appropriate determination as to whether any circumstances could exist so as to require reduction of the Termination Payment as provided in the foregoing paragraph. 6.5 Brokers or Finders. (a) The Company agrees to indemnify and hold Parent harmless from and against any and all claims, liabilities or obligations with respect to any fees, commissions or expenses asserted by any Person to the extent such fee, commission 45 or expense is attributable to any action taken by or on behalf of the Company or any of its Subsidiaries or affiliates. (b) Parent agrees to indemnify and hold Company harmless from and against any and all claims, liabilities or obligations with respect to any fees, commissions or expenses asserted by any Person to the extent such fee, commission or expense is attributable to any action taken by or on behalf of Parent. 6.6 Indemnification. (a) The indemnification obligations set forth in the Company's Certificate of Incorporation and by-laws, as amended to the date of this Agreement, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors (including any members of the Company's Compensation Committee), officers, employees or agents of the Company (the "Indemnified Parties"). Parent shall cause the Company to fulfill its indemnification obligations as set forth in this Section 6.6(a). (b) For a period of two years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect the employed lawyers' errors and omissions liability policy maintained by the Company and its Subsidiaries (provided that the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are no less advantageous in any material respect to the Indemnified Parties covered thereby) with respect to matters arising before the Effective Time, provided that Surviving Corporation shall not be required to pay an annual premium for such insurance in excess of $60,000, but in such case shall purchase as much coverage as possible for such amount. (c) The provisions of this Section 6.6 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, his heirs and his personal representatives and shall be binding on all successors and assigns of Sub, the Company and the Surviving Corporation. 6.7 Best Efforts; Notification. (a) Subject to the terms and conditions of this Agreement, each of the parties hereto agrees to use its reasonable commercial efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement and the Stockholders Agreement, subject, as applicable, to the Company Stockholder Approval, including cooperating fully with the other party, including by provision of information and making of all necessary filings in connection with, among other things, approvals under the HSR Act; provided, however, that neither Parent nor Sub need comply with any requirement by the Department of Justice or any other Governmental Entity to hold separate, sell or otherwise dispose of any Subsidiary of Parent or the Company or assets or properties of Parent, the Company or any of their Subsidiaries or to 46 agree to conditions deemed by Parent to be adverse to it or the Company (or any of their respective Subsidiaries). In case at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full title to all properties, assets, rights, approvals, immunities and franchises of either of the Constituent Corporations, the proper officers and directors of each party to this Agreement shall take all such necessary action. (b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any representation or warranty made by it contained in this Agreement that is qualified as to materiality becoming untrue or inaccurate in any respect or any representation or warranty not so qualified becoming untrue or inaccurate in any material respect (including in the case of representations or warranties by the Company or Parent, as applicable, such party's receiving knowledge of any fact, event or circumstance which may cause any representation qualified as to the knowledge of such party to be or become untrue or inaccurate in any respect or material respect, as applicable) or (ii) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. 6.8 Conduct of Business of Sub. During the period of time from the date of this Agreement to the Effective Time, Sub shall not engage in any activities of any nature except as provided in or contemplated by this Agreement. 6.9 Publicity. The parties will consult with each other and will mutually agree upon any press release or public announcement pertaining to the Offer and the Merger and shall not issue any such press release or make any such public announcement prior to such consultation and agreement, except as may be required by applicable law or by the rules of any national securities exchange or national securities quotation system, in which case the party proposing to issue such press release or make such public announcement shall use reasonable efforts to consult in good faith with the other party before issuing any such press release or making any such public announcement. 6.10 Benefit Plans. Parent shall cause the Surviving Corporation to take such actions as are reasonably necessary so that, for a period of not less than one year after the Effective Time, nonunion employees of the Company and its Subsidiaries who continue their employment after the Effective Time will be provided employee benefits which in the aggregate are at least generally comparable to those provided to such employees as of the date hereof; provided, that it is understood that after the Effective Time (a) with respect to employees covered by Foreign Plans prior to the Effective Time, Parent shall cause the Surviving Corporation to provide such employees with employee benefits which are either comparable to the Foreign Plans or comparable plans which are offered to similarly situated employees of the Parent, (b), neither Parent nor the Surviving Corporation will have any 47 obligation to issue or adopt any plans or arrangements to provide for the issuance of shares of capital stock, warrants, options, stock appreciation rights or other rights in respect of any shares of capital stock of any entity or any securities convertible or exchangeable into such shares pursuant to any such plan or program, (c) nothing herein shall require the Surviving Corporation to maintain any particular plan or arrangement or to employ or to continue to employ any Person and (d) nothing herein shall prevent or preclude the Surviving Corporation from continuing any requirements for employee contributions under any employee benefit plans in the same proportions as the employee-paid portion under such plans constituted prior to the Effective Time. 6.11 State Takeover Statutes. The Company shall, upon the request of Parent, take all reasonable steps to assist in any challenge by Parent to the validity or applicability to the Offer or the Merger of any state takeover law. 6.12 Warrants. On or prior to the Effective Time, the Company shall cause effective provisions to be made with respect to the Warrants such that following the Effective Time, each Warrant shall be exercisable only for the consideration specified in Section 3.5(a)(iii). 6.13 FCC Matters. (a) Within 7 business days after the execution of this Agreement, the Company shall create a new holding company ("SBC") to which the capital stock of SBG Communications Corp. and Sage Broadcasting Corp. of Vermont (the "Radio Licensees") would be contributed by SBC Technologies, Inc. in exchange for all of the outstanding capital stock of SBC, all in a manner satisfactory to Parent and reasonably satisfactory to the Company, so as to provide for two classes of capital stock, Class A voting shares (the "Voting Stock") representing one percent (1%) of the equity (and 1% of the total number of shares of outstanding capital stock) of SBC and Class B non-voting shares (the "Non-Voting Stock") representing ninety-nine percent (99%) of the equity (and 99% of the total number of shares of outstanding capital stock) of SBC. (i) Each holder of Voting Stock shall have one vote per share of Voting Stock. Each holder of Non-Voting Stock shall have no right to vote except that such holder shall be entitled to vote (on the basis of one vote per share of Non-Voting Stock) on all extraordinary matters outside the ordinary course of business (subject to clause (ii) below), including the following matters: (A) the termination or removal of any officer or director of SBC or any of its Subsidiaries in the event of an act or omission by such officer or director that constitutes Cause for Termination, which shall mean fraud, conviction of a felony, dishonesty, gross negligence or willful misconduct in the performance of such person's duties to SBC or breach of such person's duty of loyalty or duty of care to SBC or any of its Subsidiaries; 48 (B) any amendment of the certificate of incorporation or bylaws of SBC or any of its Subsidiaries; (C) the sale of all or a substantial portion of the assets of SBC or any of its Subsidiaries except for the sale of the assets owned by SBC Communications of Texas, Inc. pursuant to that certain Asset Purchase Agreement, dated as of December 4, 1995, among SBG Communications Corp., SBG Communications of Texas, Inc. and Gulfstar Communications, Inc., as amended as of January 11, 1996; (D) the liquidation or dissolution of SBC or any of its Subsidiaries; (E) any acquisition by SBC or any of its Subsidiaries of, or merger of SBC or any of its Subsidiaries with or into, another Person or business; (F) any incurrence by SBC or any of its Subsidiaries of indebtedness, or the granting by SBC or any of its Subsidiaries of any liens, not in the ordinary course of its business; and (G) any dividend or distribution by SBC in respect of its capital stock. No action of the type referred to in clauses (B) through (F) above shall be taken without the approval of the holders of Non-Voting Stock; and SBC shall (and shall cause its Subsidiaries to) take the action described in clause (A) above upon the affirmative vote of the holders of the Non-Voting Stock. (ii) Notwithstanding the foregoing, the holder of the Non-Voting Stock will not have the rights set forth in Section 6.12(a)(i) above to the extent that the exercise of such rights would result in the attribution to such holder of a cognizable interest in SBC under (and within the meaning of) the regulations of the Federal Communications Commission (the "FCC"). (b) Within 7 business days after the execution of this Agreement, the Company shall duly prepare and file with the FCC an application on FCC Form 316 (the "Pro Forma Application") for consent to the pro forma transfer of control of SBC from the Company to not less than a majority of the directors of the Company as of the date hereof (the "Control Group"). The Company shall use its reasonable efforts to cause such application to be approved as promptly as practicable. (c) Within 2 business days after the grant of the Pro Forma Application by the FCC, the Company shall transfer the Voting Stock to the Control Group (without representation, warranty or recourse) equally among the Control Group in consideration of $10.00 pursuant to an agreement between SBC, the Company and the Control Group 49 reasonably satisfactory to Parent, which will include without limitation the following obligations: (i) Within 2 business days after the transfer of the Voting Stock to the Control Group, the Control Group shall duly prepare and file with the FCC an application on FCC Form 315 (the "Long Form Application") for consent to the transfer of control of SBC to the holder of the Non-Voting Stock following the consummation of the Offer. The Parent shall cooperate with the Company in the preparation and filing of the Long Form Application, and the Company and the Control Group shall use their reasonable efforts to cause such application to be approved as promptly as practicable (and the Parent shall reasonably cooperate with such efforts). (ii) Within 2 business days after the grant of the Long Form Application by the FCC, the Control Group shall transfer the Voting Stock to the Company (without representation, warranty or recourse), free and clear of all liens created by such Control Group member or arising after the acquisition of such stock by such member. (iii) Except as provided in clause (ii) above, the Voting Stock shall be non-transferrable by the Control Group. (d) If requested by the Company or Parent after the date hereof, the parties will consider and negotiate in good faith the alternative of revising the transactions described above so as to (i) in lieu of the creation of SBC, effect the recapitalization of each of the Radio Licensees such that their capital stock would consist of Voting Stock and Non-Voting Stock, with the Voting Stock of each Radio Licensee held by the Control Group and the Non- Voting Stock of each Radio Licensee held by the Company, and/or (ii) issuing the Voting Stock to either (x) a limited liability company the members of which are not less than a majority of the directors of the Company as of the date hereof reasonably satisfactory to Parent and Company, or (y) any other person or entity satisfactory to Parent and Company to whom such transfer does not result in a change of control for purposes of applicable FCC rules and regulations (either of which will then be deemed to be the Control Group). 6.14 Issuance of Shares. Within 10 business days after the execution of this Agreement, the Company shall issue (A) the shares granted pursuant to the Restricted Stock Award Plan and (B) the MCP Shares, which shares are identified on Schedule 4.1(b)(ii)(A) hereto, such that such shares shall be legally issued and outstanding. 50 ARTICLE VII CONDITIONS PRECEDENT 7.1 Conditions to Each Party's Obligation to Effect the Merger. The respective obligation of each party to effect the Merger shall be subject to the satisfaction prior to the Closing Date of the following conditions: (a) Stockholder Approval. This Agreement and the Merger shall have been approved and adopted by the affirmative vote of the holders of a majority of the Shares entitled to vote thereon if such vote is required by applicable law. (b) HSR Act. The waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated; and any formal investigations relating to the Merger that may have been opened by the Department of Justice or the Federal Trade Commission (by means of a written request for additional information or otherwise) shall have been terminated. (c) No Injunctions or Restraints. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect; provided, however, that prior to invoking this condition, each party shall use all commercially reasonable efforts to have any such order, injunction, restraint or prohibition vacated. (d) FCC Approvals and Applications. The FCC shall have granted the Pro Forma Application. 7.2 Conditions of Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are subject to the satisfaction of the following conditions, any or all of which may be waived in whole or in part by Parent and Sub: (a) Payment for Shares. Sub shall have accepted for payment and paid for the shares of Company Common Stock tendered in the Offer such that, after such acceptance and payment, Parent and its affiliates shall own, at consummation of the Offer, a sufficient number of outstanding shares of the Company Common Stock to satisfy the Minimum Condition (as defined in Exhibit A), except if the failure of this condition to occur is caused by the material breach of this Agreement by Parent or Sub. (b) Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and (except to the extent such representations and warranties expressly speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and 51 Parent shall have received a certificate signed on behalf of the Company by the chief executive officer and by the chief accounting officer of the Company to such effect. (c) Performance of Obligations of the Company. The Company shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants, required to be performed or complied with by it under this Agreement at or prior to the Effective Time, and Parent shall have received a certificate signed on behalf of the Company by the chief executive officer and by the chief accounting officer of the Company to such effect. (d) Consents, Etc. All consents and approvals (collectively, "Consents") of third parties as are necessary to cure any Violation of any agreement arising out of the transactions contemplated hereby shall have been obtained, except with respect to those agreements listed or referred to on Schedule 4.1(c)(ii) and such Consents the failure to deliver which could not reasonably be expected to have a Material Adverse Effect with respect to the Company. (e) Other Approvals. Other than the filing provided for by Section 2.3, all licenses, permits, authorizations, consents, orders, qualifications or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity (including those described in Section 4.1(c)(iii) and 4.2(b)(iii)) requisite to consummation of the Merger and the transactions contemplated thereby, shall have been filed, occurred or been obtained, as the case may be. (f) FCC Matters. (i) The transactions contemplated by Section 6.13 above shall have been consummated on terms reasonably satisfactory to Parent. (ii) The Long Form Application shall have been filed. (g) No Litigation. There shall not be pending or threatened any suit, action or proceeding by any Governmental Entity (i) challenging the acquisition by Parent of any shares of capital stock of the Company, seeking to restrain or prohibit the consummation of the Offer or the Merger or any of the other transactions contemplated by this Agreement or seeking to obtain from the Company, Parent, or any of their respective Subsidiaries any damages that are material in relation to the Company and its Subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent, or any of their respective Subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, or to compel the Company, Parent or any of their respective Subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries as a result of the Offer or the Merger or any of the other transactions contemplated by this Agreement, (iii) seeking to impose limitations on the ability of Parent or Sub to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock or shares of capital stock 52 of the Company or the Surviving Corporation, including, without limitation, the right to vote such capital stock on all matters properly presented to the stockholders of the Surviving Corporation, (iv) seeking to prohibit Parent from effectively controlling in any material respect the business or operations of the Company or any of its Subsidiaries or (v) which otherwise is reasonably likely to have a Material Adverse Effect on the Company or a Material Adverse Effect on Parent. (h) Options and Rights. On or prior to the date hereof, the Company shall have caused (i) the Stock Option Plan and the Stock Purchase Plan to be amended and (ii) the Subordinated Debentures to be amended, in each case effective not later than the Effective Time, in such manner as to provide that after the Effective Time, the holders of the Equity Purchase Rights evidenced thereby shall only be entitled to receive the consideration specified in Section 3.5 hereof. 7.3 Conditions of Obligations of the Company. The obligation of the Company to effect the Merger is subject to the satisfaction of the following conditions, any or all of which may be waived in whole or in part by the Company: (a) Representations and Warranties. The representations and warranties of Parent and Sub set forth in this Agreement shall be true and correct as of the date of this Agreement and (except to the extent such representations and warranties expressly speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, and the Company shall have received a certificate signed on behalf of Parent by an officer of Parent to such effect. (b) Performance of Obligations of Parent and Sub. Parent and Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date, and the Company shall have received a certificate signed on behalf of Parent by an officer of Parent to such effect. (c) Government Approvals. Other than the filing provided for by Section 2.3, all licenses, permits, authorizations, consents, orders, qualifications or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity (including those described in Section 4.1(c)(iii) and 4.2(b)(iii)) requisite to consummation of the Merger and the transactions contemplated thereby, shall have been filed, occurred or been obtained, as the case may be. 53 ARTICLE VIII TERMINATION AND AMENDMENT 8.1 Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company or Parent: (a) by mutual written consent of the Company and Parent; (b) by either the Company or Parent (i) if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other set forth in this Agreement which breach has not been cured within five business days following receipt by the breaching party of notice of such breach from the other party, or (ii) if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Merger shall have become final and non-appealable; (c) by either the Company or Parent if the Merger shall not have been consummated on or before December 20, 1996; provided, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of or resulted in the failure of the Merger to occur on or before such date; (d) by Parent if (i) the Board of Directors or any committee thereof withdraws or modifies its approval or recommendation of this Agreement or the Merger or approves or recommends an Acquisition Proposal or resolves to do any of the foregoing or (ii) the Company shall have entered into an agreement with respect to an Acquisition Proposal; (e) by the Company, if Sub shall have failed to commence the Offer within five business days following the date of the initial public announcement of the Offer; (f) by Parent, if the Offer terminates, is withdrawn, is abandoned or expires by reason of the failure of any condition set forth in Exhibit A hereto to be satisfied; (g) by the Company, if the Offer shall have expired or have been withdrawn, abandoned or terminated without any shares of Company Common Stock being purchased by Sub thereunder on or prior to the 120th day after the date of commencement of the Offer pursuant to Section 1.2 hereof; (h) by the Company if (i) the Board of Directors pursuant to Section 5.1(e)(ii) withdraws or modifies its approval or recommendation of this Agreement or the Merger and 54 (ii) the Company simultaneously with terminating this Agreement pays Parent the Termination Payment in cash and otherwise complies with the provisions of Section 5.1(e)(ii); (i) by Parent or the Company if the Company Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of shareholders or at any adjournment thereof; (j) by the Company if (i) the Company enters into a definitive agreement in accordance with Section 5.1(e)(ii) and (ii) the Company simultaneously with terminating pays Parent the Termination Payment in cash and otherwise complies with the provisions of Section 5.1(e)(ii); (k) by Parent if any of the conditions set forth in Section 7.1 or 7.2 shall become impossible to fulfill (other than as a result of any breach by Parent of the terms of this Agreement) and shall not have been waived in accordance with the terms of this Agreement; or (l) by the Company, if any of the conditions set forth in Section 7.1 or 7.3 shall become impossible to fulfill (other than as a result of any breach by the Company of the terms of this Agreement) and shall not have been waived in accordance with the terms of this Agreement. 8.2 Effect of Termination. In the event of termination of this Agreement by either the Company or Parent as provided in Section 8.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Parent, Sub or the Company or their respective affiliates, officers, directors or shareholders except (a) pursuant to the second sentence of Section 6.2, and Sections 6.4, 6.5, this Section 8.2 and Article IX, and (b) to the extent that such termination results from the willful breach by a party hereto of any of its representations or warranties, or of any of its covenants or agreements, in each case, as set forth in this Agreement, other than as provided in the second sentence of Section 9.7. 8.3 Amendment. Subject to applicable law, this Agreement may be amended, modified or supplemented only by written agreement of Parent, Sub and the Company at any time prior to the Effective Date with respect to any of the terms contained herein; provided, however, that, after the Company Stockholder Approval is obtained, no such amendment or modification shall reduce the amount or change the form of consideration to be delivered to the stockholders of the Company. 8.4 Extension; Waiver. At any time prior to the Effective Time, the parties hereto, by action taken or authorized by their respective Boards of Directors, may, to the extent legally allowed: (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto; (b) waive any inaccuracies in the representations and 55 warranties of the other parties contained herein or in any document delivered pursuant hereto; and (c) waive compliance by the other parties with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party. The failure of any party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights. ARTICLE IX GENERAL PROVISIONS 9.1 Nonsurvival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time. 9.2 Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, telegraphed or telecopied or sent by certified or registered mail, postage prepaid, and shall be deemed to be given, dated and received when so delivered personally, telegraphed or telecopied or, if mailed, five business days after the date of mailing to the following address or telecopy number, or to such other address or addresses as such Person may subsequently designate by notice given hereunder: (a) if to Parent or Sub, to: General Electric Capital Corporation 260 Long Ridge Road Stamford, CT 06902 Attn: Victor Guaglianone, Esq. Telephone: (203) 357-4584 Telecopy: (203) 357-4729 with a copy to: Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 Attn: William M. Gutowitz, Esq. Telephone: (212) 310-8000 Telecopy: (212) 310-8007 56 (b) if to the Company, to: AmeriData Technologies, Inc. 700 Canal Street Stamford, CT 06902 Attn: President Telephone: (203) 357-1464 Telecopy: (203) 357-1531 with copies to: Dewey Ballantine 1301 Sixth Avenue New York, New York 10019 Attn: Jonathan L. Freedman, Esq. Telephone: (212) 259-8000 Telecopy: (212) 259-6333 9.3 Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. The table of contents, and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the word "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". The phrase "made available" in this Agreement shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available. 9.4 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. 9.5 Entire Agreement; No Third Party Beneficiaries; Rights of Ownership. This Agreement (together with the Confidentiality Agreement, the Stockholders Agreement and any other documents and instruments referred to herein) constitutes the entire agreement (and supersedes all prior agreements and understandings, both written and oral) among the parties hereto with respect to the subject matter hereof and, except as provided in Section 6.6, is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder. 9.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW 57 YORK, WITHOUT REGARD TO ANY APPLICABLE CONFLICTS OF LAW, EXCEPT TO THE EXTENT THE DGCL SHALL BE HELD TO GOVERN THE TERMS OF THE MERGER. 9.7 No Remedy in Certain Circumstances. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take an action consistent herewith or required hereby, the validity, legality and enforceability of the remaining provisions and obligations contained or set forth herein shall not in any way be affected or impaired thereby. Except as otherwise provided by this Agreement, to the extent that a party hereto took an action inconsistent herewith or failed to take action consistent herewith or required hereby pursuant, in each case, to an order or judgment of a court or other competent authority, such party shall incur no liability or obligation unless such party did not in good faith seek to resist or object to the imposition or entering of such order or judgment. 9.8 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties, except that Sub may assign, in its sole discretion, any or all of its rights, interests and obligations hereunder to any newly-formed wholly-owned Subsidiary of Parent. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. 9.9 Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States located in the State of New York or in New York state court, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of any Federal court located in the State of New York or any New York state court in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, and (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. 58 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above. AMERIDATA TECHNOLOGIES, INC. By: /s/ Gerald A. Poch ----------------------------------- GENERAL ELECTRIC CAPITAL CORPORATION By: /s/ Michael S. Ford ----------------------------------- GAC ACQUISITION I CORP. By: /s/ Michael S. Ford ----------------------------------- 59 EXHIBIT A CONDITIONS TO THE OFFER Notwithstanding any other provision of the Offer, Sub shall not be 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 Sub's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares tendered, and may postpone the acceptance for payment or, subject to the restriction referred to above, payment for any Shares tendered, and may amend or terminate the Offer (whether or not any Shares have theretofore been purchased or paid for) (A) unless the following conditions have been satisfied: (i) there have been validly tendered and not withdrawn prior to the time the Offer shall otherwise expire a number of Shares which constitutes a majority of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" for purposes hereof meaning, as of any date, the number of Shares outstanding, together with Shares the Company is or may be required to issue pursuant to obligations outstanding at that date under employee stock option or other benefit plans, options, warrants or convertible or exchangeable securities, or otherwise) (the "Minimum Condition"); (ii) prior to the time the Offer shall otherwise expire, Preferred Securities outstanding on the date of the Merger Agreement having an aggregate liquidation preference of more than 50% of the aggregate liquidation preference of all Preferred Securities outstanding on the date of the Merger Agreement shall have been converted by the holders thereof into Shares; (iii) all regulatory and related approvals of Governmental Entities have been obtained or made on terms reasonably satisfactory to Sub (including, without limitation, pursuant to the Competition Act (Canada), the Federal Law on Economic Competition of Mexico and the Austrian Cartel Act of 1988, as amended); (iv) any applicable waiting periods under the HSR Act shall have expired or been terminated prior to the expiration of the Offer; (v) the Company shall have caused the Stock Option Plan, the Stock Purchase Plan and the Subordinated Debentures to be amended, in each case effective not later than the Effective Time, in such manner as to provide that after the Effective Time, the holders of the Equity Purchase Rights evidenced thereby shall only be entitled to receive the consideration specified in the Merger Agreement; (vi) the FCC shall have granted the Pro Forma Application, and the transactions contemplated by the Merger Agreement with respect thereto shall have been consummated on terms reasonably satisfactory to Parent; and/or (B) if, at any time on or after the date of the Merger Agreement and before acceptance for payment of, or payment for, such Shares any of the following events shall occur or shall be deemed by Sub to have occurred: (a) there shall be threatened, instituted or pending by any United States, Canadian or other court or governmental entity any suit, action or proceeding (1) challenging the acquisition by Parent or Sub of any Shares under the Offer or seeking to restrain or prohibit the making or consummation of the Offer or Merger or seeking to obtain from the Company, Parent or any of their respective Subsidiaries any damages that are material in relation to the Company and its Subsidiaries taken as a A-1 whole, (2) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, or to compel the Company or Parent to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by this Agreement, (3) seeking to impose material limitations on the ability of Parent or Sub to acquire or hold, or exercise full rights of ownership of, any Shares accepted for payment pursuant to the Offer, including, without limitation, the right to vote such Shares on all matters properly presented to the shareholders of the Company, or (4) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect any material portion of the business or operations of the Company and its subsidiaries; or (b) any United States, Canadian or other governmental entity or authority or United States, Canadian or other domestic or foreign court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect and which (1) materially restricts, prevents or prohibits consummation of the Offer, the Merger or any other transaction contemplated by the Merger Agreement or results in the obligation to pay material damages as a result of or in connection with the transactions contemplated by this Agreement, (2) prohibits or limits materially the ownership or operation by the Company, Parent or any of their Subsidiaries of all or any material portion of the business or assets of the Company and its Subsidiaries taken as a whole or compels the Company, Parent, or any of their Subsidiaries to dispose of or hold separate all or any material portion of the business or assets of the Parent or any of its Subsidiaries, or of the Company and its Subsidiaries taken as a whole, (3) imposes limitations on the ability of Parent, Sub or any other Subsidiary of Parent to acquire or hold, or to exercise effectively full rights of ownership of, any Shares, including, without limitation, the right to vote any Shares acquired by Sub pursuant to the Offer or otherwise on all matters properly presented to the Company's stockholders, including, without limitation, the approval and adoption of the Merger Agreement and the transactions contemplated thereby or (4) requires divestitures by Parent, Sub or any other affiliate of Parent of any Shares; (c) the representations and warranties of the Company contained in the Merger Agreement shall not be true and correct when made or (except for those representations and warranties that address matters as of a specific date) shall have ceased to be true as of the date of consummation of the Offer as though made on and as of such date; A-2 (d) the Company shall not have performed or complied in all material respects with any of its obligations under the Merger Agreement to be performed or complied with by it; (e) the Merger Agreement shall have been terminated in accordance with its terms; (f) the Board of Directors of the Company shall have (i) withdrawn or materially modified or changed (including by amendment of the Schedule 14D-9) in a manner adverse to Sub its recommendation of the Offer, the Merger Agreement or the Merger, or (ii) the Board of Directors shall have approved or recommended an Acquisition Proposal; (g) all consents of third parties as are necessary in connection with the transactions contemplated hereby (including consents necessary to prevent any conflict, violation or breach of any agreement of the Company or any of its Subsidiaries, other than conflicts, breaches or violations of the agreements identified on Schedule 4.1(c)(ii) to the Merger Agreement) shall have been obtained, except such Consents the failure to deliver which could not reasonably be expected to have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or prospects of the Company and its Subsidiaries, taken as a whole; (h) other than the filing of the Certificate of Merger with respect to the Merger as provided for by Section 2.3 of the Merger Agreement, all licenses, permits, authorizations, consents, orders, qualifications or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity requisite to consummation of the Merger and the transactions contemplated thereby, shall have been filed, occurred or been obtained, as the case may be; (i) (1) it shall have been publicly disclosed or Sub shall have otherwise learned that, except as contemplated by the Stockholders Agreement, any Person or "group" (as defined in Section 13(d)(3) of the Exchange Act), other than Parent or its affiliates or any group of which any of them is a member, shall have acquired beneficial ownership (determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of more than 20% of any class or series of capital stock of the group or otherwise, or shall have been granted an option, right or warrant, conditional of capital stock of the Company (including the Shares); or (2) any person or group Company with respect to (A) a merger, consolidation or other business combination with, or acquisition of a material portion of the assets of, the Company, or (B) a tender or exchange offer for Shares; A-3 (j) there shall have occurred, developed or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence or any law, regulation, action, government regulation, inquiry or other occurrence of any nature whatsoever which, in the opinion of Sub, materially adversely affects or involves, or is reasonably likely to materially adversely affect or involve, (1) the financial markets in the United States generally, or (2) the financial condition, business, operations, assets, affairs or prospects of the Company and its Subsidiaries taken as a whole or the value of the Shares; which, in the judgment of Sub in any such case, and regardless of the circumstances (including any action or omission by Parent or Sub) giving rise to any such condition, makes it inadvisable to proceed with such acceptance for payment or payment. The foregoing conditions are for the sole benefit of Sub and its affiliates and may be asserted by Sub regardless of the circumstances (including, without limitation, any action or inaction by Sub or any of its affiliates) giving rise to any such condition or may be waived by Sub, in whole or in part, from time to time in its sole discretion, except as otherwise provided in the Agreement. The failure by Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right and may be asserted at any time and from time to time. Any determination by Sub concerning any of the events described herein shall be final and binding. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Agreement and Plan of Merger among the Parent, Sub and the Company to which this Exhibit A is attached. A-4 EX-99.(C)(2) 11 STOCKHOLDERS AGREEMENT STOCKHOLDERS AGREEMENT AGREEMENT, dated May 20, 1996, among General Electric Capital Corporation, a New York corporation ("Parent"), GAC Acquisition I Corp., a Delaware corporation and an indirect wholly-owned subsidiary of Parent ("Sub"), and the other parties signatory hereto (each a "Stockholder", and collectively, the "Stockholders"). W I T N E S S E T H: WHEREAS, concurrently herewith, Parent, Sub and AmeriData Technologies, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger (as such agreement may hereafter be amended from time to time, the "Merger Agreement"; capitalized terms used and not defined herein have the respective meanings ascribed to them in the Merger Agreement), pursuant to which, among other things, Sub will be merged with and into the Company (the "Merger"); WHEREAS, in furtherance of the Merger, Parent and the Company have agreed that as soon as practicable (and not later than five business days) after the first public announcement of the execution and delivery of the Merger Agreement, Sub will commence a cash tender offer to purchase all outstanding shares of Company Common Stock (as defined in Section 1), including all of the Shares (as defined in Section 2) Beneficially Owned (as defined in Section 1) by the Stockholders; and WHEREAS, as an inducement and a condition to entering into the Merger Agreement, Parent has required that the Stockholders agree, and the Stockholders have agreed, to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing and the mutual premises, representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Definitions. For purposes of this Agreement: (a) "Beneficially Own" or "Beneficial Ownership" with respect to any securities shall mean having "beneficial ownership" of such securities as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including pursuant to any agreement, arrangement or understanding, whether or not in writing. Without duplicative counting of the same securities by the same holder, securities Beneficially Owned by a Person shall include securities Beneficially Owned by all other Persons with whom such Person would constitute a "group" as within the meaning of Section 13(d)(3) of the Exchange Act. (b) "Company Common Stock" shall mean at any time the common stock, $.01 par value, of the Company. (c) "Person" shall mean an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity. 2. Tender of Shares. (a) Each Stockholder hereby agrees to validly tender (and not to withdraw) pursuant to and in accordance with the terms of the Offer, not later than the fifth business day after commencement of the Offer pursuant to Section 1.1 of the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares of Company Common Stock set forth opposite such Stockholder's name on Schedule I hereto (the "Existing Shares"), as well as any shares of Company Common Stock acquired by such Stockholder after the date hereof and prior to the termination of this Agreement, whether upon the exercise of options, warrants or rights, the conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend, distribution or otherwise (collectively with the Existing Shares, the "Shares"; provided, however, that with respect to any Shares the tender of which would result in liability under Section 16(b) of the Exchange Act, such tender need not take place until such tender may be made without liability under Section 16(b) of the Exchange Act. Each Stockholder hereby acknowledges and agrees that Sub's obligation to accept for payment and pay for Shares in the Offer is subject to the terms and conditions of the Offer. (b) Each Stockholder hereby agrees to permit Parent and Sub to publish and disclose in the Offer Documents and, if approval of the Merger by the Company's shareholders (other than Parent or any of its wholly-owned subsidiaries) is required under applicable law, in the Proxy Statement (including all documents and schedules filed with the SEC) his or its identity and ownership of Company Common Stock and the nature of his or its commitments under this Agreement. 3. Provisions Concerning Company Common Stock. Each Stockholder hereby agrees that during the period commencing on the date hereof and continuing until the first to occur of the Effective Time or termination of the Merger Agreement in accordance with its terms, at any meeting of the holders of Company Common Stock, however called, or in connection with any written consent of the holders of Company Common Stock, such Stockholder shall vote (or cause to be voted) the Shares held of record or Beneficially Owned by such Stockholder, whether now owned or hereafter acquired, (i) in favor of the Merger, the execution and delivery by the Company of the Merger Agreement and the approval of the terms thereof and each of the other actions contemplated by the Merger Agreement and this Agreement and any actions required in furtherance thereof and hereof; (ii) against any action or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or this Agreement (before giving effect to any materiality or similar qualifications contained therein); and (iii) except as otherwise agreed to in writing in advance by Parent, against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or its subsidiaries; (B) a sale, lease or transfer of a material amount of assets of the Company or its subsidiaries, or a reorganization, recapitalization, dissolution or liquidation of the Company or its subsidiaries; (C) (1) any change in a majority of the persons who constitute the Board of Directors of the Company; (2) any change in the present capitalization of the Company or any amendment of the Company's Certificate of Incorporation or Bylaws; (3) any other 2 material change in the Company's corporate structure or business; or (4) any other action involving the Company or its subsidiaries which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, or materially adversely affect the Merger and the transactions contemplated by this Agreement and the Merger Agreement. Such Stockholder shall not enter into any agreement or understanding with any person or entity the effect of which would be inconsistent or violative of the provisions and agreements contained in this Section 3. 4. Other Covenants, Representations and Warranties. Each Stockholder severally and not jointly hereby represents and warrants to Parent as follows: (a) Ownership of Shares. Such Stockholder is either (i) the record and Beneficial Owner of, or (ii) the Beneficial Owner but not the record holder of, the number of Shares set forth opposite such Stockholder's name on Schedule I hereto. On the date hereof, the Existing Shares set forth opposite such Stockholder's name on Schedule I hereto constitute all of the shares of securities issued by the Company owned of record or Beneficially Owned by such Stockholder. Such Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in Sections 2 and 3 hereof, sole power of disposition, sole power of conversion, sole power to demand appraisal rights and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I hereto, with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. (b) Power; Binding Agreement. Such Stockholder has the legal capacity, power and authority to enter into and perform all of such Stockholder's obligations under this Agreement. The execution, delivery and performance of this Agreement by such Stockholder will not violate any other agreement to which such Stockholder is a party including, without limitation, any voting agreement, shareholders agreement or voting trust. This Agreement has been duly and validly executed and delivered by such Stockholder and constitutes a valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity regardless of whether enforceability is considered in a proceeding at law or in equity. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which such Stockholder is Trustee whose consent is required for the execution and delivery of this Agreement or the consummation by such shareholder of the transactions contemplated hereby. (c) No Conflicts. Except for filings under the Hart-Scott- Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if applicable, (A) no filing with, and no permit, authorization, consent or approval of, any state or federal public body or authority or any other Person is necessary for the execution of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby and (B) none of the execution and delivery of this Agreement by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any of the provisions hereof shall (1) conflict with or result in any breach of any applicable organizational documents applicable to such Stockholder, (2) result in a violation or breach of, or constitute (with or without notice or lapse of time 3 or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which such Stockholder is a party or by which such Stockholder or any of such Stockholder's properties or assets may be bound, or (3) violate any order, writ, injunction, decree, judgment, order, statute, rule or regulation applicable to such Stockholder or any of such Stockholder's properties or assets. (d) No Encumbrances. Except as applicable in connection with the transactions contemplated by Section 2 hereof, such Stockholder's Shares and the certificates representing such Shares are now, and at all times during the term hereof will be, held by such Stockholder, or by a nominee or custodian for the benefit of such Stockholder, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for any such encumbrances arising hereunder and except for the liens on up to an aggregate of $350,000 in value of shares and an aggregate of $500,000 in value of shares held by Mr. Poch and Mr. Fassler, respectively, arising out of such Shares being held in margin accounts. The transfer by each Stockholder of his or its Shares to Sub in the Offer or upon exercise of the Stock Option shall pass to and unconditionally vest in Sub good and valid title to the number of Shares set forth opposite such Stockholder's name on Schedule I hereto, free and clear of all claims, liens, restrictions, security interests, pledges, limitations and encumbrances whatsoever, except for those created by any action or inaction of Parent or Sub. (e) No Finder's Fees. Other than existing financial advisory and investment banking arrangements and agreements entered into by the Company, no broker, investment banker, financial adviser or other person is entitled to any broker's, finder's, financial adviser's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder. (f) No Solicitation. No Stockholder shall, in his or its capacity as such, directly or indirectly, solicit (including by way of furnishing information) or respond to the making of any proposal by any person or entity (other than Parent or any affiliate of Parent) with respect to his or its Shares or with respect to the Company that constitutes an Acquisition Proposal, except that a Stockholder may take actions in his capacity as a director of the Company to the extent permitted by the Merger Agreement. If any Stockholder receives any such inquiry or proposal, then such Stockholder shall promptly inform Parent of the existence thereof. Each Stockholder will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. (g) Restriction on Transfer, Proxies and Non-Interference. Except as applicable in connection with the transactions contemplated by Section 2 hereof, no Stockholder shall (i) directly or indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any or all of such Stockholder's Shares or any interest therein; (ii) except as contemplated by this Agreement, grant any proxies or powers of attorney, deposit any Shares into a voting trust or enter into a voting 4 agreement with respect to any Shares; or (iii) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect in any material respect or have the effect of preventing or disabling such Stockholder from performing such Stockholder's obligations under this Agreement. (h) Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger that such Stockholder may have. (i) Reliance by Parent. Such Stockholder understands and acknowledges that Parent is entering into, and causing Sub to enter into, the Merger Agreement in reliance upon such Stockholder's execution and delivery of this Agreement. (j) Further Assurances. From time to time, at the other party's reasonable request and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further lawful action as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. 5. Stop Transfer; Changes in Shares. Each Stockholder agrees with, and covenants to, Parent that such Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of such Stockholder's Shares, unless such transfer is made in compliance with this Agreement (including the provisions of Section 2 hereof). In the event of a stock dividend or distribution, or any change in the Company Common Shares by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term "Shares" shall be deemed to refer to and include the Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Shares may be changed or exchanged. 6. Termination. Except as otherwise provided herein, the covenants and agreements contained herein with respect to the Shares shall terminate upon the earlier of (x) the Effective Time and (y) the first anniversary of the date hereof; provided, however, that the provisions of Sections 4(f), 4(g)(i) and 4(g)(ii) shall terminate upon any earlier termination of the Merger Agreement. 7. Stockholder Capacity. No person executing this Agreement who is or becomes during the term hereof a director of the Company makes any agreement or understanding herein in his or her capacity as such director. 8. Miscellaneous. (a) Entire Agreement. This Agreement and the Merger Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. 5 (b) Certain Events. Each Stockholder agrees that this Agreement and the obligations hereunder shall attach to such Stockholder's Shares and shall be binding upon any person or entity to which legal or beneficial ownership of such Shares shall pass, whether by operation of law or otherwise, including, without limitation, such Stockholder's heirs, guardians, administrators or successors. Notwithstanding any transfer of Shares, the transferor shall remain liable for the performance of all obligations under this Agreement of the transferor. (c) Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other party, provided that Parent may assign, in its sole discretion, its rights and obligations hereunder to any direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Parent of its obligations hereunder if such assignee does not perform such obligations. (d) Amendments, Waivers, Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, with respect to any one or more Stockholders, except upon the execution and delivery of a written agreement executed by Parent and such Stockholder or Stockholders; provided that Schedule I hereto may be supplemented by Parent by adding the name and other relevant information concerning any shareholder of the Company who agrees to be bound by the terms of this Agreement without the agreement of any other party hereto, and thereafter such added shareholder shall be treated as a "Stockholder" for all purposes of this Agreement. (e) Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly received if so given) by hand delivery, telegram, telex or telecopy, or by mail (registered or certified mail, postage prepaid, return receipt requested) or by any courier service, such as Federal Express, providing proof of delivery. All communications hereunder shall be delivered to the respective parties at the following addresses: If to Stockholders: At the addresses set forth on Schedule I hereto copy to: Dewey Ballantine 1301 Sixth Avenue New York, New York 10019 Attention: Jonathan Freedman, Esq. If to Parent: General Electric Capital Corporation 260 Long Ridge Road Stamford, CT 06927 Attention: Victor Guaglianone, Esq. 6 copy to: Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000 (telephone) (212) 310-8007 (telecopier) Attention: William M. Gutowitz, Esq. or to such other address as the person to whom notice is given may have previously furnished to the others in writing in the manner set forth above. (f) Severability. Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. (g) Specific Performance. Each of the parties hereto recognizes and acknowledges that a breach by it of any covenants or agreements contained in this Agreement will cause the other party to sustain damages for which it would not have an adequate remedy at law for money damages, and therefore each of the parties hereto agrees that in the event of any such breach the aggrieved party shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. (h) Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. (i) No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance. (j) No Third Party Beneficiaries. This Agreement is not intended to be for the benefit of, and shall not be enforceable by, any person or entity who or which is not a party hereto. (k) Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof. 7 (l) Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. (m) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement. 8 IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this Agreement to be duly executed as of the day and year first above written. GENERAL ELECTRIC CAPITAL CORPORATION By: /s/ Michael S. Ford ------------------------------ Name: Michael S. Ford Title: President GAC ACQUISITION I CORP. By: /s/ Michael S. Ford ------------------------------ Name: Michael S. Ford Title: President /s/ Gerald A. Poch ----------------------------------- GERALD A. POCH /s/ Leonard J. Fassler ----------------------------------- LEONARD J. FASSLER /s/ James K. McCleary ----------------------------------- JAMES K. MCCLEARY AGREED TO AND ACKNOWLEDGED (with respect to Section 5): AMERIDATA TECHNOLOGIES, INC. By: /s/ Gerald A. Poch ------------------------------ Name: Gerald A. Poch Title: Co-President 9 SCHEDULE I TO STOCKHOLDERS AGREEMENT Percentage of Out- Name and Address Number of standing Common Stock of Stockholder Shares Owned (to nearest hundredth) - ------------------ ------------ ---------------------- Gerald A. Poch 653,098 2.86 c/o AmeriData Technologies, Inc. 700 Canal Street Stamford, CT 06902 Leonard J. Fassler 633,537 2.78 c/o AmeriData Technologies, Inc. 700 Canal Street Stamford, CT 06902 James McCleary 533,136 2.34 c/o AmeriData Technologies, Inc. 5121 Winnetka Avenue Minneapolis, MN 55428 10 EX-99.(G)(1) 12 COMPLAINT FILED IN STEINER V. AMERIDATA TECHNOLOGIES, INC., ET AL. EXHIBIT 99.(g)(1) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY | KENNETH STEINER, Individually and | Civil Action No. 15005 on behalf of all others similarly | situated | Plaintiff | SUMMONS | v. | | LEONARD J. FASSLER, EDWARD A. | KERBS, GERALD M. LeBOW, | GERALD A. POCH, ANTHONY P. TOWELL, | JAMES K. McCLEARY, RICHARD J. | WILLIAMS, AMERIDATA TECHNOLOGIES, | INC. AND GE CAPITAL SERVICES, INC. | | Defendants | | | | THE STATE OF DELAWARE TO THE SPECIAL PROCESS SERVER YOU ARE COMMANDED: To Summon the above named defendants so that, within 20 days after service hereof upon defendants, exclusive of the day of service, defendants shall serve upon Joseph A. Rosenthal, Esquire, plaintiff's attorney whose address is Suite 1401, Mellon Bank Center, PO Box 1070, Wilm., DE an answer to the complaint. To serve upon defendants a copy hereof and of the complaint. /s/ Priscilla B. Rakestraw -------------------------- Register in Chancery Dated May 21, 1996 TO THE ABOVE NAMED DEFENDANTS: In case of your failure, within 20 days after service hereof upon you, exclusive of the day of service, to serve on plaintiff's attorney named above an answer to the complaint, judgement by default will be rendered against you for the relief demanded in the complaint. /s/ Priscilla B. Rakestraw -------------------------- Register in Chancery IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - - - - - - - - - - - - - - - - - - - - - x : KENNETH STEINER, Individually and : On Behalf of All Others Similarly : Civil Action No. 15005 Situated, : : : Plaintiff, : CLASS ACTION : COMPLAINT - v. - : : LEONARD J. FASSLER, EDWARD A. : KERBS, GERALD M. LeBOW, GERALD A. : POCH, ANTHONY P. TOWELL, JAMES K. : McCLEARY, RICHARD J. WILLIAMS, : AMERIDATA TECHNOLOGIES, INC. and GE : CAPITAL SERVICES, INC. : : Defendants. : : - - - - - - - - - - - - - - - - - - - - - x Plaintiff alleges on information and belief, except as to the allegations of paragraph 2 which are alleged on knowledge, as follows: 1. Plaintiff brings this action as a class action on behalf of himself and all other stockholders of AmeriData Technologies, Inc. ("AmeriData" or the "Company") who are similarly situated, to enjoin certain actions of the defendants related to the proposed purchase of the outstanding shares of AmeriData stock by defendant GE Capital Services, Inc. ("GE"). PARTIES 2. Plaintiff is and has been at all relevant times the owner of shares of AmeriData common stock. 3. (a) Defendant AmeriData, a corporation organized and existing under the laws of the State of Delaware, provides computer products and services to commercial, governmental and educational users. The Company also designs, manufactures and sells public alerting, notification and emergency response systems for use in the event of natural disasters. As of March 31, 1996, AmeriData had approximately 22.1 million shares of common stock issued and outstanding held by 6,900 shareholders of record. (b) AmeriData is named herein as nominal defendant in order to effectuate the relief sought. 4. (a) Defendant Leonard J. Fassler ("Fassler") is and was at all relevant times AmeriData's Co-Chairman. Fassler is also President of Sage Equities, Inc., a private investment company. (b) Defendant James K. McCleary ("McCleary") it and was at all relevant times AmeriData's Co-Chairman and Co-President. (c) Defendant Gerald A. Poch ("Poch") is and was at all relevant times AmeriData's Co-Chairman, Co- President and Chief Executive Officer. (d) Defendant Gerald M. LeBow ("LeBow") is and was at all relevant times AmeriData'a Executive Vice President, General Manager and a director. (e) Defendants Edward A. Kerbs ("Kerbs") Anthony P. Towell ("Towell") and Richard J. Williams 2 ("Williams") are and were at all relevant times directors of AmeriData. Defendant Williams is also a principal of Triumph Connecticut Limited Partnership ("TCLP") an entity which has invested in the Company. 5. Defendant GE is a New York corporation and a wholly-owned subsidiary of General Electric Company, which through General Electric Pension Trust owns 2,101,404 shares of AmeriData common stock representing 9.7% of the Company's outstanding common stock. GE is named herein as an aider and abettor of the individual defendants' breach of fiduciary duty. 6. By virtue of the individual defendants' positions as directors and officers of AmeriData, said defendants were and are in a fiduciary relationship with plaintiff and the other public stockholders of the Company, and owe to plaintiff and the other members of the Class the highest obligations of good faith and fair dealing. CLASS ACTION ALLEGATIONS 7. Plaintiff brings this action for declaratory, injunctive and other relief on his own behalf and as a class action, pursuant to Rule 23 of the Rules of the Court of Chancery and on behalf of all common stockholders of AmeriData (except defendants herein and any person, firm, trust, corporation or other entity related to or affiliated with any of the defendants) or their successors in interest, who are being deprived of the opportunity to maximize the value of 3 their AmeriData shares by the wrongful acts of the defendants as described herein. 8. This action is properly maintainable as a class action for the following reasons: (a) The Class of stockholders for whose benefit this action it brought is so numerous that joinder of all Class members is impracticable. There are more than 9 million common shares of AmeriData outstanding, owned by thousands of stockholders. Members of the Class are scattered throughout the United States. (b) There are questions of law and fact which are common to members of the Class and which predominate over all questions affecting only individual members, including whether the defendants have breached the fiduciary duties owed by them to plaintiff and members of the Class by reason of the acts described herein. (c) The claims of plaintiff are typical of the claims of the other members of the Class and plaintiff has no interests that are adverse or antagonistic to the interests of the Class. (d) Plaintiff is committed to the vigorous prosecution of this action and has retained competent counsel experienced in litigation of this nature. Accordingly, plaintiff is an adequate representative of the Class and will fairly and adequately protect the interests of the Class. - 4 - (e) The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class and establish incompatible standards of conduct for the party opposing the Class. (f) Defendants have acted and are about to act on grounds generally applicable to the Class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the Class as a whole. FACTUAL BACKGROUND 9. On or about May 20, 1996, GE announced that it has entered into a definitive agreement to acquire AmeriData. Pursuant to the terms of the agreement, GE will pay $16 cash per share for each share of AmeriData common stock (the "Transaction"). 10. The Transaction will be effected in two steps, commencing with a tender offer by GE for the Company's outstanding common stock at $16 cash per share. Shares not purchased in the tender offer will be acquired in a subsequent merger at $16 per share. 11. The market price of AmeriData closed at $15 3/8 per share on the trading day prior to the announcement of the Transaction. 12. AmeriData just released, on May 14, 1996, its financial results for the quarter ended March 31, l996, which results were outstanding. The Company reported revenues of -5- $452,799,000 and net income of $3,451,000 or $0.15 per share, compared with revenues of $274,901,000 and net income of $1,604,000 or $0.08 per share for the same period in 1995. The news propelled the Company's stock to close at $15 3/8 per share by May 17, 1996. 13. Additionally, on April 1, 1996, AmeriData confirmed to the investment community that it expected to record revenue of $2 billion for the 1996 fiscal year, exclusive of additional acquisitions in 1996. 14. AmeriData's growth has been fueled in part by the acquisition of nearly 36 smaller re-sellers and service companies over the past few years. In fact, in January 1996, the Company, in a stock swap, purchased Brenner Technology, Inc., a company which provides consulting services in the New York City area. Thus, the market has yet to fully absorb all the information about the Company, and the corresponding impact which this news will have on AmeriData's future trading price. 15. By virtue of its ownership in AmeriData, GE has been privy to material non-public information concerning AmeriData's business, products and financial results. Accordingly, GE has, in part based upon non-public information, positioned itself to purchase the remaining interest in AmeriData at an unreasonably low and unfair price, to the detriment of plaintiff and the other public stockholders of the Company. -6- 16. The Transaction, if consummated, will transfer control of AmeriData and its valuable assets and businesses from its present stockholders to GE. The individual defendants are obligated in connection with any contemplated transfer of such control of AmeriData to seek to maximize shareholder value by such means as an auction, active market check or other exploration of strategic alternatives under the circumstances. The individual defendants have failed to implement such procedures for the maximization of shareholder value and are permitting the transfer of control of AmeriData and its assets at a value which fails to reflect the long-term value of its stock given the positive trends AmeriData has shown, as described above. Defendants have not engaged in any effort to solicit competing bids for the Company or to explore other strategic alternatives involving other potential parties. 17. If consummated, the merger agreement will deny Class members their right to share proportionately in the true value of AmeriData's valuable assets, profitable businesses and future growth. 18. The actions taken by the individual defendants are in gross disregard of their fiduciary duties owed to plaintiff and the other members of the Class 19. AmeriData knowingly aided and abetted the breaches of fiduciary duty committed by the individual defendants complained of herein. Indeed, the Transaction - 7 - between AmeriData and GE could not take place without the knowing participation of AmeriData. 20. Plaintiff and the other members of the Class will suffer irreparable injury unless the Transaction is enjoined. 21. Plaintiff and the Class have no adequate remedy at law. WHEREFORE, plaintiff demands judgment and preliminary and permanent relief, including injunctive relief, in his favor and in favor of the Class and against defendants as follows: A. Declaring that this action is properly maintainable as a class action, and certifying plaintiff as class representative; B. Enjoining the Transaction; C. Ordering the individual defendants to carry out their fiduciary duties to plaintiff and other members of the Class by announcing their intention to: (i) cooperate fully with any person or entity, having a bona fide interest in proposing any transaction which would maximize shareholder value, including, but not limited to, a buyout or takeover of the Company; (ii) undertake an appropriate evaluation of AmeriData's worth as a merger acquisition candidate; - 8 - (iii) take all appropriate steps to enhance AmeriData's value and attractiveness as a merger/acquisition candidate; (iv) take all appropriate steps to effectively expose AmeriData to the market place to create an active auction of AmeriData; (v) act independently so that the interests of AmeriData's public shareholders will be protected; and (vi) adequately ensure that no conflicts of interest exist between the individual defendants' own interests and their fiduciary obligation to maximize shareholder value or, if such conflicts exist, ensure that all conflicts are resolved in the best interests of AmeriData's public shareholders. D. Awarding plaintiff and the Class rescissory damages, if the Transaction is consummated before judgment, and compensatory damages; E. Awarding plaintiff the costs and disbursements of this action, including reasonable attorneys' and experts' fees; and - 9 - F. Granting such other and further relief as this Court may deem just and proper. Dated: May 20, 1996 ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A. By: /s/ Authorized Signature ----------------------------- Mellon Bank Center, Suite 1401 919 North Market Street Wilmington, Delaware 18801 (302) 656-4433 Attorneys for Plaintiff OF COUNSEL: GOODKIND LABATON RUDOFF & SUCHAROW 100 Park Avenue New York, New York 10017 (212) 907-0700 - 10 - IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY | KENNETH STEINER, Individually and | Civil Action No. 15005 on behalf of all others similarly | situated | Plaintiff | SUMMONS PURSUANT | TO 10 DEL.C. SECTION 3114 v. | | LEONARD J. FASSLER, EDWARD A. | KERBS, GERALD M. LeBOW, | GERALD A. POCH, ANTHONY P. TOWELL, | JAMES K. McCLEARY, RICHARD J. | WILLIAMS, AMERIDATA TECHNOLOGIES, | INC. AND GE CAPITAL SERVICES, INC. | | Defendants | | | | THE STATE OF DELAWARE TO THE SPECIAL PROCESS SERVER YOU ARE COMMANDED: To Summon the above named individual defendants by service pursuant to 10 Del. C. Section 3114 upon their designated agent for service of process in Delaware, The Prentice-Hall Corporation Systems, Inc. being the registered agent for Ameridata Technologies, Inc., a Delaware corporation, so that within the time required by law, such defendants shall serve upon Joseph A. Rosenthal, Esquire, plaintiff's attorney whose address is Suite 1401, PO Box 1070, Wilm., DE an answer to the complaint. To serve upon defendants a copy hereof, of the complaint and of a statement of plaintiff filed pursuant to Chancery Court Rule 4(dc) ( l ). /s/ Priscilla B. Rakestraw -------------------------- Dated May 21, 1996 Register in Chancery TO THE ABOVE NAMED DEFENDANTS: In case of your failure, within the time permitted by l0 Del. C. Section 3114*, to serve on plaintiff's attorney named above an answer to the complaint, judgment by default may be rendered against you for the relief demanded in the complaint. /s/ Priscilla B. Rakestraw ------------------------- Register in Chancery *The text of 10 Del. C. Section 3114 is set out on the reverse of this Summons. CIVIL ACTION NO. 15005 KENNETH STEINER Plaintiff v. LEONARD J. FASSLER, ET AL Defendant SUMMONS 1. Leonard J. Fassler 2. Edward A. Kerbs 3. Gerald M. LeBow 4. Gerald A. Poch 5. Anthony P. Towell 6. James K. McCleary 7. Richard J. Williams by serving the registered agent for Ameridata Technologies, Inc. The Prentice-Hall Corporation Systems, Inc. c/o The Corporation Service Company 1013 Centre Road Wilmington, De SERVICE TO BE COMPLETED BY SPECIAL PROCESS SERVER Section 3114. Service of process on non-resident directors, trustees or members of the governing body of Delaware corporations. (a) Every non-resident of this State who after September 1, 1977, accepts election or appointment as a director, trustee or member of the governing body of a corporation organized under the laws of this State or who after June 30, 1978, serves in such capacity and every resident of this State who so accepts election or appointment or serves in such capacity and thereafter removes his residence from this State shall, by such acceptance or by such service, be deemed thereby to have consented to the appointment of the registered agent of such corporation (or, if there is none, the Secretary of State) as his agent upon whom service of process may be made in all civil actions or proceedings brought in this State, by or on behalf of, or against such corporation, in which such director, trustee or member is a necessary or proper party, or in any action or proceeding against such director, trustee or member for violation of his duty in such capacity, whether or not he continues to serve as such director, trustee or member at the time suit is commenced. Such acceptance or service as such director, trustee or member shall be a signification of the consent of such director, trustee or member that any process when so served shall be of the same legal force and validity as if served upon such director, trustee or member within this State and such appointment of the registered agent (or, if there is none, Secretary of State) shall be irrevocable. (b) Service of process shall be effected by serving the registered agent (or, if there is none, the Secretary of State) with 1 copy of such process in the manner provided by law for service of writs of summons. In addition, the Prothonotary or the Register in Chancery of the court in which the civil action or proceeding is pending shall, within 7 days of such service, deposit in the United States mails, by registered mail, postage prepaid, true and attested copies of the process, together with a statement that service is being made pursuant to this section, addressed to such director, trustee or member at the corporation's principal place of business and at his residence address as the same appears on the records of the Secretary of State, or, if no such residence address appears, at his address last known to the party desiring to make such service. (c) In any action in which any such director, trustee or member has been served with process as hereinabove provided, the time in which a defendant shall be required to appear an file a responsive pleading shall be computed from the date of mailing by the Prothonotary or the Register in Chancery as provided in subsection (b) of this section; however, the court in which such action has been commenced may order such continuance or continuances as may be necessary to afford such director, trustee or member reasonable opportunity to defend the action. (d) Nothing herein contained limits or affects the right to serve process in any other manner now or hereafter provided by law. This section is an extension of and not a limitation upon the right otherwise existing of service of legal process upon non-residents. (e) The Court of Chancery and the Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof and such other rules which may be necessary to implement this section and are not inconsistent with this section (61 Del. Laws, c. 119, Section 1.) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - - - - - - - - - - - - - - - - - - - - - x : KENNETH STEINER, Individually and : On Behalf of All Others Similarly : Civil Action No. 15005 Situated, : : : Plaintiff, : CLASS ACTION : COMPLAINT - v. - : : LEONARD J. FASSLER, EDWARD A. : KERBS, GERALD M. LeBOW, GERALD A. : POCH, ANTHONY P. TOWELL, JAMES K. : McCLEARY, RICHARD J. WILLIAMS, : AMERIDATA TECHNOLOGIES, INC. and GE : CAPITAL SERVICES, INC. : : Defendants. : : - - - - - - - - - - - - - - - - - - - - - x Plaintiff alleges on information and belief, except as to the allegations of paragraph 2 which are alleged on knowledge, as follows: 1. Plaintiff brings this action as a class action on behalf of himself and all other stockholders of AmeriData Technologies, Inc. ("AmeriData" or the "Company") who are similarly situated, to enjoin certain actions of the defendants related to the proposed purchase of the outstanding shares of AmeriData stock by defendant GE Capital Services, Inc. ("GE"). PARTIES 2. Plaintiff is and has been at all relevant times the owner of shares of AmeriData common stock. 3. (a) Defendant AmeriData, a corporation organized and existing under the laws of the State of Delaware, provides computer products and services to commercial, governmental and educational users. The Company also designs, manufactures and sells public alerting, notification and emergency response systems for use in the event of natural disasters. As of March 31, 1996, AmeriData had approximately 22.1 million shares of common stock issued and outstanding held by 6,900 shareholders of record. (b) AmeriData is named herein as a nominal defendant in order to effectuate the relief sought. 4. (a) Defendant Leonard J. Fassler ("Fassler") is and was at all relevant times AmeriData's Co-Chairman. Fassler is also President of Sage Equities, Inc., a private investment company. (b) Defendant James K. McCleary ("McCleary") is and was at all relevant times AmeriData's Co-Chairman and Co-President. (c) Defendant Gerald A. Poch ("Poch") is and was at all relevant times AmeriData's Co-Chairman, Co- President and Chief Executive Officer. (d) Defendant Gerald M. LeBow ("LeBow") is and was at all relevant times AmeriData'a Executive Vice President, General Manager and a director. (e) Defendants Edward A. Kerbs ("Kerbs") Anthony P. Towell ("Towell") and Richard J. Williams - 2 - ("Williams") are and were at all relevant times directors of AmeriData. Defendant Williams is also a principal of Triumph Connecticut Limited Partnership ("TCLP") an entity which has invested in the Company. 5. Defendant GE is a New York corporation and a wholly-owned subsidiary of General Electric Company, which through General Electric Pension Trust owns 2,101,404 shares of AmeriData common stock representing 9.7% of the Company's outstanding common stock. GE is named herein as an aider and abettor of the individual defendants' breach of fiduciary duty. 6. By virtue of the individual defendants' positions as directors and officers of AmeriData, said defendants were and are in a fiduciary relationship with plaintiff and the other public stockholders of the Company, and owe to plaintiff and the other members of the Class the highest obligations of good faith and fair dealing. CLASS ACTION ALLEGATIONS 7. Plaintiff brings this action for declaratory, injunctive and other relief on his own behalf and as a class action, pursuant to Rule 23 of the Rules of the Court of Chancery and on behalf of all common stockholders of AmeriData (except defendants herein and any person, firm, trust, corporation or other entity related to or affiliated with any of the defendants) or their successors in interest, who are being deprived of the opportunity to maximize the value of - 3 - their AmeriData shares by the wrongful acts of the defendants as described herein. 8. This action is properly maintainable as a class action for the following reasons: (a) The Class of stockholders for whose benefit this action is brought is so numerous that joinder of all Class members is impracticable. There are more than 9 million common shares of AmeriData outstanding, owned by thousand of stockholders. Members of the Class are scattered throughout the United States. (b) There are questions of law and fact which are common to members of the Class and which predominate over all questions affecting only individual members, including whether the defendants have breached the fiduciary duties owed by them to plaintiff and members of the Class by reason of the acts described herein. (c) The claims of plaintiff are typical of the claims of the other members of the Class and plaintiff has no interests that are adverse or antagonistic to the interests of the Class. (d) Plaintiff it committed to the vigorous prosecution of this action and has retained competent counsel experienced in litigation of this nature. Accordingly, plaintiff is an adequate representative of the Class and will fairly and adequately protect the interests of the Class. - 4 - (e) The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class and establish incompatible standards of conduct for the party opposing the Class. (f) Defendants have acted and are about to act on grounds generally applicable to the Class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the Class as a whole. FACTUAL BACGROUND 9. On or about May 20, 1996, GE announced that it has entered into a definitive agreement to acquire AmeriData. Pursuant to the terms of the agreement, GE will pay $16 cash per share for each share of AmeriData common stock (the "Transaction" ). 10. The Transaction will be effected in two steps, commencing with a tender offer by GE for the Company's outstanding common stock at $16 cash per share. Shares not purchased in the tender offer will be acquired in a subsequent merger at $16 per share 11. The market price of AmeriData closed at $15-3/8 per share on the trading day prior to the announcement of the Transaction. 12. AmeriData just released, on May 14, 1996, its financial results for the quarter ended March 31, 1996, which results were outstanding. The Company reported revenues of - 5 - $452,799,000 and net income of $3,451,000 or $0.15 per share, compared with revenues of $274,901,000 and net income of $1,604,000 or $0.08 per share for the same period in 1995. The news propelled the Company's stock to close at $15 3/8 per share by May 17, 1996. 13. Additionally, on April 1, 1996, AmeriData confirmed to the investment community that it expected to record revenue of $2 billion for the 1996 fiscal year, exclusive of additional acquisitions in 1996. 14. AmeriData's growth has been fueled in part by the acquisition of nearly 36 smaller re-sellers and service companies over the past few years. In fact, in January 1996, the Company, in a stock swap, purchased Brenner Technology, Inc., a company which provides consulting services in the New York City area. Thus, the market has yet to fully absorb all the information about the Company, and the corresponding impact which this news will have on AmeriData's future trading price. 15. By virtue of its ownership in AmeriData, GE has been privy to material non-public information concerning AmeriData's business, products and financial results. Accordingly, GE has, in part based upon non-public information, positioned itself to purchase the remaining interest in AmeriData at an unreasonably low and unfair price, to the detriment of plaintiff and the other public stockholders of the Company. - 6 - 16. The Transaction, if consummated, will transfer control of AmeriData and its valuable assets and businesses from its present stockholders to GE. The individual defendants are obligated in connection with any contemplated transfer of such control of AmeriData to seek to maximize shareholder value by such means as an auction, active market check or other exploration of strategic alternatives under the circumstances. The individual defendants have failed to implement such procedures for the maximization of shareholder value and are permitting the transfer of control of AmeriData and its assets at a value which fails to reflect the long-term value of its stock given the positive trends AmeriData has shown, as described above. Defendants have not engaged in any effort to so1icit competing bids for the Company or to explore other strategic alternatives involving other potential parties. 17. If consummated, the merger agreement will deny Class members their right to share proportionately in the true value of AmeriData's valuable assets, profitable businesses and future growth. 18. The actions taken by the individual defendants are in gross disregard of their fiduciary duties owed to plaintiff and the other members of the Class. 19. AmeriData knowingly aided and abetted the breaches of fiduciary duty committed by the individual defendants complained of herein. Indeed, the Transaction - 7 - between AmeriData and GE could not take place without the knowing participation of AmeriData. 20. Plaintiff and the other members of the Class will suffer irreparable injury unless the Transaction is enjoined. 21. Plaintiff and the Class have no adequate remedy at law. WHEREFORE, plaintiff demands judgment and preliminary and permanent relief, including injunctive relief, in his favor and in favor of the Class and against defendants as follows: A. Declaring that this action is properly maintainable as a class action, and certifying plaintiff as class representative; B. Enjoining the Transaction; C. Ordering the individual defendants to carry out their fiduciary duties to plaintiff and other members of the Class by announcing their intention to: (i) cooperate fully with any person or entity, having a bona fide interest in proposing any transaction which would maximize shareholder value, including, but not limited to, a buyout or takeover of the Company; (ii) undertake an appropriate evaluation of AmeriData's worth as a merger/acquisition candidate; - 8 - (iii) take all appropriate steps to enhance AmeriData's value and attractiveness as a merger/acquisition candidate; (iv) take all appropriate steps to effectively expose AmeriData to the market place to create an active auction of AmeriData; (v) act independently so that the interests of AmeriData's public shareholders will be protected; and (vi) adequately ensure that no conflicts of interest exist between the individual defendants' own interests and their fiduciary obligation to maximize shareholder value or, if such conflicts exist, ensure that all conflicts are resolved in the best interests of AmeriData's public shareholders. D. Awarding plaintiff and the Class rescissory damages, if the Transaction is consummated before judgment, and compensatory damage; E. Awarding plaintiff the costs and disbursements of this action, including reasonable attorneys' and experts' fees; and - 9 - F. Granting such other and further relief as this Court may deem just and proper. Dated: May 20, 1996 ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A. By: /s/ Authorized Signature ----------------------------- Mellon Bank Center, Suite 1401 919 North Market Street Wilmington, Delaware 18801 (302) 656-4433 Attorneys for Plaintiff OF COUNSEL: GOODKIND LABATON RUDOFF & SUCHAROW 100 Park Avenue New York, New York 10017 (212) 907-0700 - 10 - -----END PRIVACY-ENHANCED MESSAGE-----