SC TO-T/A

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE TO-T/A

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)

WEGENER CORPORATION
(Name of Subject Company (Issuer))

RADYNE COMSTREAM INC.
WC ACQUISITION CORP.
(Name of Filing Person (Offeror))

Common Stock, $.01 Par Value Per Share
(Title of Class of Securities)

948585104
(CUSIP Number of Class of Securities)

Richard P. Johnson
Chief Financial Officer
Radyne ComStream Inc.
3138 E. Elwood Street
Phoenix, Arizona 85034
(602) 437-9620
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing person)

Copy to:

Steven D. Pidgeon, Esq.
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004-2202
(602) 382-6300

CALCULATION OF FILING FEE

TRANSACTION VALUATION*	AMOUNT OF FILING FEE**
$21,207,373.00		$	1,715.68

* Estimated for purposes of calculating the amount of the filing fee only. This amount assumes the purchase of (i) 12,341,751 shares of the common stock, par value $0.01, of Wegener Corporation, representing all of the outstanding shares of such class as of March 13, 2003 (less 100 shares of such class owned by WC Acquisition Corp.) and (ii)

	1,340,425 shares reserved for issuance upon the exercise of outstanding options to purchase common stock.
**	The amount of the filing fee, calculated in accordance with Rule 0-11(a)(2) of the Securities and Exchange Act of 1934, as supplemented by Securities & Exchange Commission Fee Rate Advisory #11 for Fiscal Year 2003, equals .00008090 multiplied by the transaction value.

x Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

     Amount Previously Paid: $1,715.68

     Filing Party: Radyne ComStream Inc./WC Acquisition Corp.

     Form or Registration No.: Schedule TO-T

     Date Filed: April 23, 2003

o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

     Check the appropriate boxes below to designate any transactions to which the statement relates:

x third-party tender offer subject to Rules 14d-1.

o issuer tender offer subject to Rule 13e-4.

o going-private transaction subject to Rule 13e-3.

o amendment to Schedule 13D under Rule 13d-2.

     Check the following box if the filing is a final amendment reporting the results of the tender offer: o

2

     This Amendment No. 1 to the Tender Offer Statement on Schedule TO (the “Schedule TO”), filed with the Securities and Exchange Commission on April 23, 2003, relates to an offer by WC Acquisition Corp., a Delaware corporation (the “Purchaser”) and a wholly owned subsidiary of Radyne ComStream Inc., a Delaware corporation (“Radyne ComStream”), to purchase all outstanding shares of common stock, par value $.01 per share (the “Shares”), of Wegener Corporation, a Delaware corporation (“Wegener”), at a purchase price of $1.55 per Share, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 23, 2003 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, as amended, modified or supplemented from time to time, together constitute the “Offer”).

     The information in the Offer to Purchase and the related Letter of Transmittal is incorporated in this Amendment No. 1 to the Schedule TO by reference to all of the applicable items in the Schedule TO, except as such information is hereby amended and supplemented to the extent specifically provided herein.

     Capitalized terms used and not defined herein have the meanings specified in the Offer to Purchase and the Schedule TO.

     The item numbers and responses thereto below are in accordance with the requirements of Schedule TO.

Item 5. Past Contacts, Transactions, Negotiations and Agreements.

The following is hereby added to the end of Section 11— “Contacts and Transactions with Wegener; Background of the Offer” of the Offer to Purchase:

     On April 21, 2003, Wegener issued a press release announcing that its board of directors had made a preliminary determination that the $1.55 per Share price made in the Offer was inadequate.

     On April 24, 2003, Wegener issued a press release announcing the formation of a special committee charged with evaluating the Offer and requesting that Wegener stockholders defer making any determination on tendering their Shares until the Wegener board of directors has provided formal recommendation to the stockholders.

     On April 25, 2003, Radyne ComStream provided Wegener and Mr. James “Harry” Morgan, counsel for Wegener, with copies of the complaints filed in Delaware Chancery Court and United States District Court in Delaware, an amendment to the Schedule TO-T and a draft of a merger agreement and again requested that Wegener engage in substantive discussions regarding a negotiated business combination.

Item 11. Additional Information.

Item 11 is amended to add the following:

Legal Proceedings between Radyne ComStream, Purchaser and Wegener

     On April 24, 2003, Radyne ComStream and Purchaser commenced litigation against Wegener and certain members of Wegener’s board of directors in the Court of Chancery of the State of Delaware seeking, among other things, an order:

3

• compelling Wegener’s directors to approve the Offer and a subsequent merger for purposes of Section 203 of the General Corporation Law of the State of Delaware and enjoining them from taking any action to enforce or to apply Section 203 that would impede, thwart, frustrate or interfere with the Offer and a subsequent merger;

• temporarily, preliminarily and permanently enjoining Wegener from adopting any defensive measures, or taking any action designed to impede the Offer or a subsequent merger; and

• enjoining Wegener and its directors from taking any action to delay, impede, postpone or thwart the voting or other rights of Wegener’s stockholders in connection with an action by written consent in lieu of a meeting.

     Also on April 24, 2003, Radyne ComStream and Purchaser commenced litigation against Wegener in the United States District Court for the District of Delaware seeking, among other things:

• a declaratory judgment that Radyne ComStream and Purchaser have disclosed all information required by, and are otherwise in full compliance with, the Exchange Act and any other federal securities laws, rules or regulations deemed applicable to any purchases of Wegener’s securities by Radyne ComStream or Purchaser; and

• enjoining Wegener from making any false or misleading statements with respect to the Offer.

Item 12. Exhibits.

Item 12 is hereby amended and supplemented to add the following exhibits:

(a)	(10)	Complaint filed in the United States District Court for the District of Delaware on April 24, 2003
	(11)	Complaint filed in the Chancery Court, New Castle County, Delaware on April 24, 2003

4

SIGNATURE

     After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.

Dated: April 25, 2003
	RADYNE COMSTREAM INC.
	By:	/s/ Robert C. Fitting
		Robert C. Fitting Chief Financial Officer
	WC ACQUISITION CORP.
	By:	/s/ Robert C. Fitting
		Robert C. Fitting President

5

EXHIBIT INDEX

EXHIBIT NO.	DESCRIPTION
(a)(1)	Offer to Purchase, dated April 23, 2003*
(a)(2)	Form of Letter of Transmittal*
(a)(3)	Notice of Guaranteed Delivery*
(a)(4)	Letter to Brokers, Dealers, Commercial Banks, Trust Companies, Commercial Banks and Other Nominees*
(a)(5)	Form of Letter to Clients for Use by Brokers, Dealers, Trust Companies, Commercial Banks, and Other Nominees*
(a)(6)	Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9*
(a)(7)	Summary Advertisement as published on April 23, 2003 and appearing in the New York Times and the Atlanta Journal-Constitution*
(a)(8)	Press Release issued by Radyne ComStream, dated April 21, 2003*
(a)(9)	Letter to Wegener Corporation Stockholders, dated April 23, 2003*
(a)(10)	Complaint filed in the United States District Court for the District of Delaware on April 24, 2003
(a)(11)	Complaint filed in the Chancery Court, New Castle County, Delaware on April 24, 2003
(b)	None
(d)	Not applicable
(g)	Not applicable
(h)	Not applicable

* previously filed

6 EX-99.A.10 3 p67717a1exv99waw10.htm EX-99.A.10

Exhibit (a)(10)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RADYNE COMSTREAM INC. a Delaware	)
Corporation, and WC ACQUISITION CORP., a	)
Delaware Corporation,	)
	)
Plaintiffs,	)
	)	Civil Action No._________
v.	)
	)
WEGENER CORPORATION, a Delaware	)
Corporation,	)
	)
Defendant.	)

COMPLAINT

     Plaintiffs Radyne ComStream Inc., a Delaware corporation (“Radyne ComStream”) and WC Acquisition Corp. (“WC Acquisition” or the “Purchaser”), by their undersigned attorneys, file this Complaint seeking declaratory and injunctive relief arising out of Purchaser’s offer to purchase shares of stock of defendant Wegener Corporation, a Delaware corporation (“Wegener”).

INTRODUCTION

     1.        On April 23, 2003, plaintiff Purchaser commenced a non-coercive, non-discriminatory, all-cash, all-shares, fully-funded, premium tender offer for all outstanding shares of Wegener common stock that are not already owned by Purchaser (the “Tender Offer”). If successful, plaintiff Purchaser contemplates that the Tender Offer will be followed by a merger with Purchaser or another subsidiary of Radyne ComStream (the “Proposed Merger,” and together with the Tender Offer, the “Proposed Acquisition”). This action seeks declaratory relief confirming the adequacy of Purchaser’s disclosures and injunctive relief prohibiting Wegener from making any false or misleading statements with respect to the Tender Offer or taking any further action to frustrate the efforts of Wegener stockholders to reap the benefits of the Proposed Acquisition.

JURISDICTION AND VENUE

     2.        This Court has jurisdiction over this action pursuant to 15 U.S.C. § 78aa, 28 U.S.C. § 1331 and 28 U.S.C. § 1337(a).

     3.        Venue in this Court is proper pursuant to 15 U.S.C. § 78aa and 28 U.S.C. § 1391(b).

THE PARTIES

     4.        Plaintiff Radyne ComStream is a corporation incorporated under Delaware law having its principal executive offices at 3138 East Elwood Street, Phoenix, Arizona 85034. Radyne ComStream designs, manufactures, sells, integrates and installs products, systems and software used for the transmission and reception of data and video over satellite, microwave and cable communications networks. Through one of its subsidiaries, Radyne ComStream supplies HDTV and SDTV encoding and transmission equipment. Through another subsidiary, Radyne ComStream provides innovative solutions for the integration and installation of turnkey communications systems.

     5.        Plaintiff WC Acquisitions is a Delaware corporation and a wholly-owned subsidiary of Radyne ComStream with its principal place of business in Phoenix, Arizona. WC Acquisition is the record owner of 100 shares of Wegener common stock.

     6.        Defendant Wegener is a Delaware corporation with its principal executive offices at 11350 Technology Circle, Duluth, Georgia 30097. According to its Form 10-K for the year ended August 30, 2002, Wegener conducts is business through Wegener Communications, Inc., its wholly-owned subsidiary (“WCI”) and Wegener Communications International, Inc., a wholly-owned subsidiary of WCI. According to Wegener’s Form 10-K, WCI, “a market leader in digital and analog compression technology, designs and manufactures communications transmission and receiving equipment for the business broadcast, data communications, internet, cable and broadcast radio and television industries for worldwide markets.”

-2-

     7.        Wegener common stock is registered pursuant to Section 12(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 781(b), and is listed and traded on The NASDAQ SmallCap Market under the symbol “WGNR.”

BACKGROUND

     8.        Radyne ComStream believes that the industry in which both Radyne ComStream and Wegener compete needs to consolidate. Given the prolonged down-turn in the world economy, Radyne ComStream believes (in the short-term at least) that companies in Radyne ComStream’s and Wegener’s industry will be able to grow more readily by acquisition rather than organically. Radyne ComStream believes that a combination of Radyne ComStream and Wegener would produce a larger, more competitive enterprise which Radyne ComStream believes is necessary given the increased regulatory, auditing and legal costs of small public companies like itself and Wegener.

     9.        Radyne ComStream attempted to initiate general discussions regarding a potential business combination involving Radyne ComStream and Wegener at a meeting on July 24, 2000. Robert A. Placek, Wegener’s current President, Chief Executive Officer and Chairman of the Board, who is intending to retire in November, expressed no interest in such discussions.

     10.        During the weeks of February 3, 2003 and February 10, 2003, Robert Fitting, Radyne ComStream’s Chief Executive Officer, placed several calls to Mr. Placek to attempt to revisit the issue of a negotiated business combination involving Radyne ComStream and Wegener. Mr. Placek failed to return Mr. Fitting’s calls.

     11.        Thereafter, Steven D. Pidgeon, Esq., a partner in the law firm of Snell & Wilmer L.L.P., which represents Radyne ComStream, placed a call to James H. Morgan, Jr., a director of Wegener and a partner at Smith, Gambrell & Russell, LLP, an Atlanta, Georgia firm that currently acts as general counsel to Wegener, to determine if he could assist in arranging a phone call or

-3-

conference between Messrs. Fitting and Placek. Mr. Morgan indicated to Mr. Pidgeon that he would do so.

     12.        After no further contact transpired for several days, Mr. Fitting made several additional phone calls to Mr. Placek on or about March 23, 2003. When these attempts proved unsuccessful, Mr. Fitting directed Mr. Pidgeon again to contact Mr. Morgan. Mr. Pidgeon’s attempt to contact Mr. Morgan proved unsuccessful. Radyne ComStream received no further response from Wegener.

     13.        Thereafter, on April 1, 2003, Mr. Fitting, at the direction of the Radyne ComStream board of directors, sent a letter to the Wegener Board offering to meet with the Wegener Board to discuss a possible acquisition of Wegener at $1.55 per share. On April 3, 2003, Mr. Placek contacted Mr. Fitting and arranged for the two to meet on April 8, 2003 at the National Association of Broadcasters trade show. At the trade show, Mr. Fitting spoke at length with Mr. Placek about the aforesaid letter. Mr. Placek told Mr. Fitting that he would discuss the matter with Wegener’s management team and the Wegener Board and get back to Mr. Fitting on or before April 15, 2003.

     14.        Mr. Fitting did not hear back from Mr. Placek. On April 17, 2003, the Radyne ComStream’s board of directors determined to proceed with the Tender Offer, and on April 21, 2003, Radyne ComStream publicly announced its intention to make the Tender Offer.

     15.        Thereafter, on April 21, 2003 Wegener filed a press release wherein Mr. Placek stated that “[a]fter discussing Radyne’s [Tender Offer] announcement, the Wegener [B]oard has made a preliminary determination that an offer of $1.55 per share would be inadequate in light of the value of the Company’s assets, its strong balance sheet, and, most importantly, its business plan and prospects.” This same press release also states that “Wegener Corporation has in place various anti-takeover measures permitted under Delaware law, including, specifically, a provision in its

-4-

Certificate of Incorporation which would prohibit Radyne from consummating a merger with Wegener without the recommendation of the Wegener [B]oard, unless holders of not less than 80% of Wegener’s common stock vote to approve the merger.”

     16.        In light of Wegener’s failure to even discuss a proposed business combination with Radyne ComStream, the current Wegener Board cannot be expected to facilitate the Proposed Acquisition, but instead can be expected to maintain existing, or adopt new, anti-takeover devices and to actively oppose the Proposed Acquisition. Because Wegener failed to even consider the substantial benefits of the Proposed Acquisition, Radyne ComStream is taking its offer directly to the Wegener stockholders.

THE TENDER OFFER

     17.        On April 23, 2003, Purchaser commenced its non-coercive, non-discriminatory, all-cash, all-shares, fully-funded, premium Tender Offer for all outstanding shares of Wegener common stock that are not already owned by Purchaser. In connection with the commencement of the Tender Offer, on April 23, 2003 Radyne ComStream issued a press release summarizing the terms of the Tender Offer (the “Press Release”), and a summary advertisement of the Tender Offer was published in the April 23, 2003 editions of The New York Times and Atlanta Journal-Constitution (the “Summary Advertisements”).

     18.        Wegener stockholders whose shares are purchased by Purchaser in the Tender Offer will receive $1.55 per share in cash, representing a 70% premium above the average closing price for the Shares over the thirty (30) trading days preceding the announcement of the Tender Offer. The $1.55 per Share Tender Offer price is roughly equal to the highest price Shares have traded in almost a year (and, even then, only for a short time).

-5-

     19.        The Tender Offer is conditioned upon, among other things, (i) there being validly tendered and not withdrawn prior to the expiration date of the Tender Offer, a number of Shares that would constitute at least a majority of all outstanding Shares (the “Minimum Tender Condition”), (ii) the inapplicability of any anti-takeover statute, including Section 203, to the Tender Offer or the Proposed Merger, (iii) there being no amendment to the certificate of incorporation of Wegener, as the same has been amended (the “Wegener Charter”), or the bylaws of Wegener (the “Wegener Bylaws”), proposed or authorized, and (iv) there being no distribution of rights to purchase debt securities or other securities, including capital stock, of Wegener, including a dividend or distribution in connection with the adoption of a stockholder rights plan or “poison pill.”

     20.        The Tender Offer is the initial step in a two-step transaction pursuant to which Purchaser proposes to acquire all of the outstanding shares of Wegener stock. If successful, the Tender Offer will be followed by the Proposed Merger with Purchaser or another subsidiary of Radyne ComStream. Pursuant to the Proposed Merger, it is currently anticipated that each then-outstanding share of Wegener (other than shares owned by Radyne ComStream or any of its subsidiaries or shares held in the treasury of Wegener) will be converted into the right to receive an amount in cash equal to the price paid in the Tender Offer.

     21.        The Wegener Board will be able to prevent Purchaser from consummating the Proposed Acquisition for at least three years unless the Wegener Board exempts the Tender Offer and the Proposed Merger from restrictions imposed by Section 203 of the General Corporation Law of the State of Delaware (“Section 203”). Section 203, which applies to any Delaware corporation that has not opted out of its coverage, provides that if a person acquires 15% or more of a corporation’s voting stock (thereby becoming an “interested stockholder”), such interested stockholder may not engage in a “business combination” with the corporation (defined to include a

-6-

merger or consolidation) for three years after becoming an interested stockholder, unless: (i) prior to the person’s acquisition of 15% or more of a corporation’s voting stock, the board of directors approved either the acquisition resulting in the stockholder becoming an interested stockholder or the business combination; (ii) the interested stockholder acquires at least 85% of the corporation’s voting stock in the same transaction in which it became an interested stockholder; or (iii) on or subsequent to the date of the person’s becoming an interested stockholder, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders (and not by written consent) by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. Wegener is subject to Section 203 and has chosen not to opt-out of Section 203’s coverage.

     22.        The Tender Offer is, and will continue to be, in full compliance with all applicable federal laws and regulations governing tender offers, i.e., the provisions of the Williams Act, embodied in Sections 14(d) and 14(e) of the Exchange Act, 15 U.S.C. §§ 78n(d) and (e) and the rules and regulations promulgated thereunder by the Securities and Exchange Commission (“SEC”). In accordance with the Exchange Act and the rules and regulations promulgated thereunder by the SEC, Purchaser commenced the Tender Offer by the publication of the Summary Advertisements in the April 23, 2003 editions of The New York Times and Atlanta Journal-Constitution. In connection with the Tender Offer and in accordance with the Exchange Act and the rules and regulations promulgated thereunder by the SEC, Purchaser also filed a Schedule TO, an Offer to Purchase, and a pre-filing communication under Rule 14a-12 with the SEC.

     23.        Section 14(d) of the Exchange Act, 15 U.S.C. § 78n(d), and the rules and regulations promulgated thereunder by the SEC, require that any person or entity making a tender offer for beneficial ownership of more than five percent of a class of registered equity securities file and

-7-

disclose certain specified information with respect to the tender offer. Any such bidder must disclose, among other things, its identity and background, past contacts, transactions or negotiations between the bidder and the company in whom the bidder seeks to acquire stock, the source and amount of funds needed for the tender offer, and any plans the bidder may have to change the capitalization, corporate structure or business of the company whose stock it seeks to acquire.

     24.        In addition, Section 14(e) of the Exchange Act, 15 U.S.C. § 78n(e) makes it “unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statement made, in light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices in connection with any tender offer.” Purchaser has complied fully with the Exchange Act and all rules and regulations promulgated thereunder.

     25.        In connection with the Tender Offer, Purchaser is disseminating to Wegener stockholders an offer to purchase containing all material information required by applicable law to be disclosed (the “Offer to Purchase”). A true and correct copy of the Offer to Purchase is attached hereto as Exhibit A.

     26.        The Offer to Purchase contains all such information and is in full compliance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder by the SEC, including Rule 14a-9.

     27.        In furtherance of Radyne ComStream’s full disclosure of all material terms, Purchaser is demanding that Wegener produce a list of its stockholders and related stocklist materials and is in the process of disseminating to Wegener’s stockholders the Offer to Purchase containing all material information required by applicable law to be disclosed.

-8-

     28.        Despite the significant benefits of the Tender Offer for Wegener stockholders, Wegener has refused to even consider the Radyne ComStream offer. Wegener’s efforts will, in all likelihood, also include the commencement of baseless litigation against plaintiffs under the provisions of the federal securities laws regulating tender offers and acquisition efforts. In light of the inevitable dispute over the adequacy of plaintiffs’ SEC filings and in anticipation of any litigation brought by Wegener, plaintiffs seek declaratory and injunctive relief from this Court.

COUNT I

(For Declaratory Relief)

     29.        Plaintiffs repeat and reallege the above paragraphs as if fully set forth herein.

     30.        The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.” Plaintiffs are entitled to a declaratory judgment that the Schedule TO and the Offer to Purchase and any exhibits thereto are proper and comply with all applicable securities laws, rules and regulations.

     31.        Although the Proposed Merger is fairly and attractively priced, plaintiffs reasonably expect that Wegener will attempt to thwart or delay plaintiffs’ lawful attempts to consummate the Tender Offer. Plaintiffs believe that Wegener will seek to delay and defeat the Tender Offer through a variety of efforts, including the filing of a meritless suit claiming that public disclosures and filings made by plaintiffs in conjunction with the Tender Offer violate applicable federal securities laws and regulations. Thus, there is a substantial controversy between parties having adverse interests, which is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

-9-

     32.        In the absence of declaratory relief, plaintiffs will suffer irreparable harm. As evidenced by the course of action that Wegener has pursued to date and the actions taken generally by companies that receive unsolicited acquisition proposals, Wegener will likely defend against the Tender Offer and Proposed Merger by, among other things, filing meritless claims designed to delay or defeat the Tender Offer. A declaratory judgment that the Offer to Purchase, the Schedule TO and pre-filing communications under Rule 14a-12 comply with all applicable federal laws, will serve the purpose of adjudicating the interests of the parties, resolving any complaints concerning the propriety of the Proposed Acquisition under federal law, and permitting this lawful transaction to proceed.

     33.        Plaintiffs therefore request, pursuant to the Declaratory Judgment Act, 28 U.S.C §§ 201 and 2202, that this Court enter a declaratory judgment that the public disclosures and documents filed with the SEC by plaintiffs and which are being disseminated to Wegener stockholders in connection with the Proposed Merger comply fully with all applicable provisions of law.

     WHEREFORE, plaintiffs respectfully request that this Court:

          1.   declare that plaintiffs have disclosed all information required by, and are otherwise in all respects in compliance with, all applicable laws and other obligations, including, without limitation, Sections 14(a), 14(d) and 14(e) of the Exchange Act and any other federal securities laws, rules or regulations deemed or claimed to be applicable to the Schedule TO, Offer to Purchase, or the Tender Offer;

          2.   preliminarily and permanently enjoin Wegener, its agents, employees and anyone acting on its behalf, from making any false or misleading statements with respect to the Tender Offer;

          3.   award plaintiffs their costs and disbursements in this action, including reasonable attorneys’ fees; and

-10-

          4.   grant plaintiffs such other and further relief as this Court may deem just and proper.

Of Counsel:	Srinivas M. Raju (Bar No. 3313)
	Kelly A. Herring (Bar No. 3638)
Steven D. Pidgeon	Dawn N. Zubrick (Bar No. 4327)
Snell & Wilmer L.L.P.	Richards, Layton & Finger, P.A.
One Arizona Center	One Rodney Square
Phoenix, Arizona 85002-2202	P.O. Box 551
(602) 382-6300	Wilmington, Delaware 19899
	(302) 651-7700
	Attorneys for Plaintiffs
Dated: April 24, 2003

Exhibit A

[Offer to Purchase]

-11- EX-99.A.11 4 p67717a1exv99waw11.htm EX-99.A.11

Exhibit (a)(11)

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

RADYNE COMSTREAM INC., a Delaware	)
Corporation, and WC ACQUISITION CORP.,	)
a Delaware Corporation,	)
	)
Plaintiffs,	)
	)
v.	)
	)	Civil Action No.__________
WEGENER CORPORATION, a Delaware	)
Corporation, ROBERT A. PLACEK,	)
THOMAS G. ELLIOT, JAMES H.	)
MORGAN, JR., C. TROY WOODBURY,	)
JR., WENDELL BAILEY and JOE K.	)
PARKS,	)
	)
Defendants.

VERIFIED COMPLAINT

     Plaintiffs Radyne ComStream Inc., a Delaware corporation (“Radyne ComStream”) and WC Acquisition Corp., a Delaware corporation (“WC Acquisition” or “Purchaser”), a wholly-owned subsidiary of Radyne ComStream, by and through their undersigned counsel, upon knowledge as to themselves and their own acts and upon information and belief as to all other matters, allege as follows:

NATURE OF THE ACTION

     1.         On April 23, 2003, plaintiff Purchaser commenced a non-coercive, non-discriminatory, all-cash, all-shares, fully-funded, premium tender offer for outstanding shares of common stock of Wegener Corporation, a Delaware corporation (“Wegener” or the “Company”) that are not already owned by Purchaser (the “Tender Offer”). This action seeks declaratory and injunctive relief requiring Wegener to dismantle its existing takeover defenses, and enjoining Wegener from adopting additional takeover defenses, amending its bylaws or certificate of

incorporation, adopting a stockholder rights plan or “poison pill,” or taking any other action to thwart or to frustrate the efforts of Wegener’s stockholders to reap the benefits of the Tender Offer.

     2.         Those stockholders whose shares of common stock, par value $0.01 per share, of Wegener (the “Shares”) are purchased by Purchaser in the Tender Offer will receive $1.55 per share in cash, representing a 70% premium to the average closing price for the shares over the thirty (30) trading days preceding the announcement of the Tender Offer. The $1.55 per share cash price is roughly equal to the highest price that Shares have traded in almost a year (and, even then, only for a short time). The Tender Offer therefore represents an aggregate value for Wegener of approximately $19 million. The Tender Offer is the initial step in a contemplated two-step transaction pursuant to which Purchaser proposes to acquire all of the outstanding shares of Wegener’s common stock. If successful, Purchaser contemplates that the Tender Offer will be followed by a merger with Purchaser or another subsidiary of Radyne ComStream (the “Proposed Merger,” and together with the Tender Offer, the “Proposed Acquisition”). Pursuant to the Proposed Merger, it is anticipated that each then outstanding share of Wegener (other than shares held by Radyne ComStream or any of its subsidiaries or shares held in the treasury of Wegener) will be converted into the right to receive an amount in cash equal to the price paid in the Tender Offer.

     3.         The board of directors of Wegener (the “Wegener Board”) will be able to prevent Radyne ComStream and Purchaser from consummating the Proposed Merger for at least three years unless the Wegener Board exempts the Tender Offer and the Proposed Merger from restrictions imposed by Section 203 of the General Corporation Law of the State of Delaware (“Section 203”).

     4.         The Wegener Board also effectively will be able to prevent Radyne ComStream and Purchaser from consummating the Proposed Merger unless the Wegener Board approves the

-2-

Proposed Merger pursuant to Article EIGHTH of the certificate of incorporation, as the same has been amended, of Wegener (the “Wegener Charter”).

     5.         Radyne ComStream anticipates that the Wegener Board will adopt measures intended to impede the right of Wegener stockholders to accept the premium offer for the Shares offered to them by the Tender Offer and thereby impose substantial obstacles to Purchaser’s consummation of the Tender Offer and the Proposed Merger.

     6.         The Tender Offer is conditioned upon, among other things, (i) there being validly tendered and not withdrawn prior to the expiration date of the Tender Offer, a number of Shares that would constitute at least a majority of all outstanding Shares (the “Minimum Tender Condition”), (ii) the inapplicability of any anti-takeover statute, including Section 203, to the Tender Offer or the Proposed Merger, (iii) there being no amendment to the Wegener Charter or the bylaws of Wegener (the “Wegener Bylaws”), proposed or authorized, and (iv) there being no distribution of rights to purchase debt securities or other securities, including capital stock, of Wegener, including a dividend or distribution in connection with the adoption of a stockholder rights plan or “poison pill.” Wegener stockholders, including Purchaser, will be irreparably harmed absent relief from this Court.

THE PARTIES

     7.         Plaintiff Radyne ComStream is a corporation incorporated under the laws of Delaware having its principal executive offices at 3138 East Elwood Street, Phoenix, Arizona 85034. Radyne ComStream designs, manufactures, sells, integrates and installs products, systems and software used for the transmission and reception of data and video over satellite, microwave and cable communications networks. Through one of its subsidiaries, Radyne ComStream supplies HDTV and SDTV encoding and transmission equipment. Through another subsidiary, Radyne

-3-

ComStream provides innovative solutions for the integration and installation of turnkey communications systems.

     8.         Plaintiff WC Acquisitions is a Delaware corporation and a wholly-owned subsidiary of Radyne ComStream with its principal executive offices in Phoenix, Arizona. WC Acquisitions is the record owner of 100 Shares.

     9.         Defendant Wegener is a Delaware corporation with its principal executive offices at 11350 Technology Circle, Duluth, Georgia 30097. According to its Form 10-K for the year ended August 30, 2002, Wegener conducts its business through Wegener Communications, Inc., its wholly-owned subsidiary (“WCI”) and Wegener Communications International, Inc., a wholly-owned subsidiary of WCI. According to Wegener’s Form 10-K, WCI is “a market leader in digital and analog compression technology, [and] designs and manufactures communications transmission and receiving equipment for the business broadcast, data communications, internet, cable and broadcast radio and television industries for worldwide markets.”

     10.        Defendant Robert A. Placek (“Placek”) is the current President and Chief Executive Officer of Wegener, and is the Chairman of the Wegener Board. Mr. Placek is also a Class II director of Wegener. Mr. Placek also served as President of WCI from 1979 to June 1998, and from March 2002 to the present.

     11.        Defendant Thomas G. Elliot (“Elliot”) is a Class III director of Wegener, and has served as a director of Wegener since September 1998. Mr. Elliot has served as Senior Vice President, Technical Projects, at Cable Television Laboratories, Inc., a research and development consortium of cable television system operators representing most of the cable subscribers in North America, since July 1997.

     12.        Defendant James H. Morgan, Jr. (“Morgan”) is a Class III director of Wegener, and

-4-

is a partner of the law firm of Smith, Gambrell & Russell, LLP, Atlanta, Georgia. According to Wegener’s Proxy Statement for the annual meeting of stockholders of Wegener held on Tuesday, January 21, 2003, Smith, Gambrell & Russell, LLP currently acts as general counsel to Wegener and receives fees for services rendered to Wegener.

     13.        Defendant C. Troy Woodbury, Jr. (“Woodbury”) is a Class I director of Wegener, and has served as Treasurer and Chief Financial Officer of Wegener since June 1988. Mr. Woodbury also has served as Treasurer and Chief Financial Officer of WCI since September 1992.

     14.        Defendant Wendell Bailey (“Bailey”) has been a Class II director of Wegener since February 2003. Mr. Bailey most recently served as Chief Technologist for NBC in New York.

     15.        Defendant Joe K. Parks (“Parks”) is a Class I director of Wegener, and served as Laboratory Director, Threat Systems Development Laboratory of the Georgia Tech Research Institute, a department of the Georgia Institute of Technology, from 1980 to July 1996.

     16.        Defendants Placek, Elliot, Morgan, Woodbury, Bailey and Parks are referred to collectively herein as the “Director Defendants.” The Director Defendants, as directors of Wegener, owe fiduciary duties of care, loyalty, candor and good faith to Wegener stockholders.

FACTUAL BACKGROUND

A. Radyne ComStream’s Repeated Attempts To Negotiate a Business Combination With Wegener.

     17.        Radyne ComStream’s desire to purchase Wegener is prompted by Radyne ComStream’s belief that the industry in which both Radyne ComStream and Wegener compete needs to consolidate. Given the prolonged down-turn in the world economy Radyne ComStream believes (in the short-term at least) that companies in Radyne ComStream’s and Wegener’s industry will be able to grow more readily by acquisition rather than organically. Radyne ComStream believes that a

-5-

combination of Radyne ComStream and Wegener would produce a larger, more competitive enterprise, which Radyne ComStream believes is essentially mandated by the increased regulatory, auditing and legal costs of small public companies such as itself and Wegener. Radyne ComStream has concluded, therefore, that it must grow both organically and through acquisitions, to create substantial shareholder value and to support its infrastructure costs, including the costs of being a public corporation.

     18.        On July 24, 2000, in an effort to discuss a potential business combination with Wegener, Robert Fitting, the Chief Executive Officer of Radyne ComStream, met with Mr. Placek, Keith Smith, President of Wegener, and Debra Fiakas, at that time Radyne ComStream’s investment banker from the HD Brous Co. Mr. Placek expressed no interest in pursuing these discussions with Mr. Fitting.

     19.        During the weeks of February 3, 2003 and February 10, 2003, Mr. Fitting placed several calls to Mr. Placek in an attempt to revisit the issue of a negotiated business combination involving Radyne ComStream and Wegener. Mr. Placek failed to return Mr. Fitting’s calls.

     20.        Thereafter, Steven D. Pidgeon, Esq., a partner in the law firm of Snell & Wilmer L.L.P., which represents Radyne ComStream, placed a call to Mr. Morgan to determine if he could assist in arranging a phone call or conference between Messrs. Fitting and Placek. Mr. Morgan indicated to Mr. Pidgeon that he would do so.

     21.        After no further contact transpired for several days, Mr. Fitting made several additional phone calls to Mr. Placek on or about March 23, 2003. When these attempts proved unsuccessful, Mr. Fitting directed Mr. Pidgeon again to contact Morgan. Mr. Pidgeon’s attempt to contact Mr. Morgan also proved unsuccessful.

-6-

     22.        After receiving no further response from Messrs. Placek or Morgan, Mr. Fitting, at the direction of the board of directors of Radyne ComStream, sent a letter to the Wegener Board offering to meet with the Wegener Board to discuss a possible acquisition of Wegener at $1.55 per Share. This letter was sent to the Wegener Board on April 1, 2003, at a time when the Shares were trading at $0.89 per Share.

     23.        After receiving this letter from Mr. Fitting on April 3, 2003, Mr. Placek contacted Mr. Fitting. Messrs. Placek and Fitting arranged to meet on April 8, 2003 at the National Association of Broadcasters trade show. At the trade show, Mr. Fitting spoke to Mr. Placek at length about the aforesaid letter. Mr. Placek indicated to Mr. Fitting that he would discuss the matter with Wegener’s management team and the Wegener Board and get back to Mr. Fitting prior to April 15, 2003.

     24.        Mr. Fitting did not hear from Mr. Placek. On April 17, 2003, the board of directors of Radyne ComStream determined to proceed with the Tender Offer directly to the stockholders of Wegener, and on April 21, 2003, Radyne ComStream publicly announced its intention to make the Tender Offer.

     25.        On April 21, 2003 Wegener filed a press release wherein Mr. Placek stated that “[a]fter discussing Radyne’s [Tender Offer] announcement, the Wegener [B]oard has made a preliminary determination that an offer of $1.55 per share would be inadequate in light of the value of the Company’s assets, its strong balance sheet, and, most importantly, its business plan and prospects.” This same press release also states that “Wegener Corporation has in place various anti-takeover measures permitted under Delaware law, including, specifically, a provision in its Certificate of Incorporation which would prohibit Radyne from consummating a merger with Wegener without the recommendation of the Wegener [B]oard, unless holders of not less than 80% of Wegener’s common stock vote to approve the merger.”

-7-

B. Radyne ComStream Initiates Tender Offer and Proposed Merger.

     26.        Given the refusal of Wegener to engage in any meaningful discussions with Radyne ComStream despite Radyne ComStream’s repeated efforts, it became clear that the Wegener Board would not accept the Proposed Acquisition despite its clear and significant economic benefits to the Wegener stockholders. Rather, and as indicated in Wegener’s April 21, 2003 press release, the Wegener Board proposes to maintain Wegener’s existing anti-takeover devices, adopt additional defensive measures, and actively oppose the Proposed Acquisition. Because Wegener has declined to accept the substantial benefits of the Proposed Acquisition, Radyne ComStream has been forced to take its offer directly to the Wegener stockholders by causing Purchaser to commence the Tender Offer.

     27.        In furtherance of the solicitation of the Tender Offer, Purchaser is demanding that Wegener produce a list of its stockholders and related stock list materials.

C. The Delaware Business Combination Statute.

     28.        Section 203 of the General Corporation Law, entitled “Business Combinations with Interested Stockholders,” applies to any Delaware corporation that has not opted out of Section 203’s coverage. Wegener has not opted out of Section 203’s coverage.

     29.        Section 203 was designed to impede coercive and inadequate tender and exchange offers. Section 203 provides that if a person acquires 15% or more of a corporation’s voting stock (thereby becoming an “interested stockholder”), such interested stockholder may not engage in a “business combination” with the corporation (defined to include a merger or consolidation) for three years after becoming an interested stockholder, unless: (i) prior to such person’s acquisition of 15% or more of a corporation’s voting stock, the board of directors has approved either the acquisition resulting in the stockholder becoming an interested stockholder or the business combination; (ii) the

-8-

interested stockholder acquires at least 85% of the corporation’s voting stock in the same transaction in which it became an interested stockholder; or (iii) on or subsequent to the date of the person’s becoming an interested stockholder, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders (and not by written consent) by the affirmative vote of at least 66   % of the outstanding voting stock which is not owned by the interested stockholder.

     30.        The Tender Offer is a non-coercive, non-discriminatory, all-cash, all-shares, fully-funded, premium tender offer which is to be followed by the Proposed Merger at the same price. Nonetheless, application of Section 203 to the Proposed Acquisition will delay the Proposed Merger for at least three years. Accordingly, three years of the substantial benefits of the Proposed Merger will be forever lost. In addition, any number of events could occur within those three years that would prevent the Proposed Merger altogether.

D. Article EIGHTH of the Wegener Charter.

     31.        Section A of Article EIGHTH of the Wegener Charter (“Article Eighth”) provides that the “adoption of any agreement for, or approval of, the merger or consolidation of the Corporation or any subsidiary . . . with or into a five percent beneficial owner” requires “the affirmative vote or consent of the holders of not less than eighty percent (80%) of the issued and outstanding securities of the Corporation entitled to vote thereon,” except as provided in Section B of Article Eighth. Section C of Article Eighth construes the “beneficial owner” of “voting securities of the Corporation” broadly to encompass securities (i) directly or indirectly owned by such person or its affiliates or associates, (ii) which such person or its affiliates or associates has the right to acquire pursuant to any agreement, exercise of conversion rights, warrants or options, (iii) which such person or its affiliates or associates has an “agreement, arrangement or understanding for the purpose of

-9-

acquiring, holding, voting or disposing of” such securities, or (iv) which such person or its affiliates or associates “has the right to acquire by reason of tenders of securities submitted to them by other holders of securities of the Corporation in connection with or pursuant to a tender offer made by such specified person or any of its affiliates or associates.”

     32.        Section B of Article Eighth provides that the provisions of Section A requiring the affirmative vote of not less than eighty percent (80%) of the outstanding shares of capital stock of Wegener discussed above (the “Supermajority Vote”) do not apply to a merger or consolidation “if the Board of Directors by resolution shall have approved an agreement with such five percent beneficial owner setting forth the principal terms of such transaction and such transaction is substantially consistent therewith. . . .” In addition, Section B of Article Eighth requires that “a majority of those members of the Board of Directors voting in favor of the resolution approving the [merger] agreement were duly elected and acting members of the Board of Directors prior to the time such five percent beneficial owner first became such beneficial owner.”

     33.        Based upon Wegener’s public filings, Wegener management owns approximately 15% of the currently outstanding Shares, and, including options, up to approximately 18% of the outstanding Shares. Given these circumstances, Article Eighth prevents Radyne ComStream and Purchaser from consummating the Proposed Merger absent approval by the Wegener Board or the approval of almost every holder of Shares other than those Shares held by management — a practical impossibility.

     34.        As in the case of Section 203, application of Article Eighth to the Proposed Merger, as a practical matter, will prevent the Proposed Merger absent the prior approval thereof by a majority of the members of the current Wegener Board. Under such circumstances, the substantial benefits of the Proposed Merger to Wegener stockholders will be forever lost.

-10-

IRREPARABLE INJURY

     35.        The unlawful actions of Wegener, including its failure to accept the Proposed Acquisition, its failure to exempt the Tender Offer and the Proposed Merger from Section 203, its failure to approve the Proposed Merger in accordance with Article Eighth, and any other actions taken by Wegener to thwart or impede the Tender Offer and the Proposed Merger will prevent its stockholders from receiving the benefits of the Proposed Acquisition and will thereby cause Wegener stockholders irreparable harm. Unless the Wegener Board is restrained by this Court, the substantial benefits of the Proposed Acquisition may be forever lost. The injury to Radyne ComStream and Purchaser will not be compensable in money damages and plaintiffs have no adequate remedy at law.

COUNT I
(Breach of Fiduciary Duty: Section 203)

     36.        Plaintiffs repeat and reallege each and every allegation set forth in the preceding paragraphs as if fully set forth herein.

     37.        The Director Defendants owe Wegener stockholders the highest duties of care, loyalty, candor and good faith.

     38.        The Wegener Board is empowered by Section 203 to render Section 203 inapplicable to the Proposed Acquisition by approving the Tender Offer and the Proposed Merger.

     39.        In light of the superior value offered to Wegener stockholders by the Proposed Acquisition, there is no legitimate reason for the Wegener Board to fail to approve the Tender Offer and the Proposed Merger or to fail to take any other steps necessary to render Section 203 inapplicable to the Proposed Acquisition. Such failures only have the effect of withholding from Wegener stockholders the right to maximize their wealth by selling their Shares at the premium price offered by the Proposed Acquisition.

-11-

     40.        The Director Defendants’ failure to approve the Tender Offer and the Proposed Merger or otherwise render Section 203 inapplicable to the Proposed Acquisition has no economic justification, serves no legitimate purpose, and is not a reasonable response to the Proposed Acquisition, which poses no threat to the interests of Wegener stockholders or to Wegener corporate policy and effectiveness. As such, the actions of the Director Defendants are in breach of the fiduciary duties the Director Defendants owe to Wegener’s stockholders under applicable Delaware law.

     41.        Radyne ComStream and Purchaser have no adequate remedy at law.

COUNT II
(Breach of Fiduciary Duty: Article Eighth)

     42.        Plaintiffs repeat and reallege each and every allegation set forth in the preceding paragraphs as if fully set forth herein.

     43.        The Director Defendants owe Wegener stockholders the highest duties of care, loyalty, candor and good faith.

     44.        The Wegener Board is empowered by Section B of Article Eighth to render Article Eighth’s Supermajority Vote inapplicable to the Proposed Merger by approving the Proposed Merger in accordance with the terms thereof.

     45.        In light of the superior value offered to the Wegener stockholders by the Proposed Acquisition, there is no legitimate reason for the Wegener Board to fail to approve the Proposed Merger pursuant to Section B of Article Eighth or fail to take any other steps necessary to make the provisions of Article Eighth inapplicable to the Proposed Merger. Such failures only have the effect of withholding from Wegener stockholders the right to maximize their wealth by selling their Shares at the premium price offered by the Proposed Acquisition.

-12-

     46.        The Director Defendant’s failure to approve the Proposed Merger or otherwise render the Supermajority Vote provisions of Article Eighth inapplicable to the Proposed Merger has no economic justification, serves no legitimate purpose, and is not a reasonable response to the Proposed Merger, which poses no threat to the interests of Wegener stockholders or to Wegener’s corporate policy and effectiveness.

     47.        Radyne ComStream and Purchaser have no adequate remedy at law.

COUNT III
(Declaratory and Injunctive Relief: Anti-Takeover Devices)

     48.        Plaintiffs repeat and reallege each and every allegation set forth in the preceding paragraphs as if fully set forth herein.

     49.        The Director Defendants owe Wegener stockholders the highest duties of care, loyalty, candor and good faith.

     50.        The Tender Offer is non-coercive and non-discriminatory, is fair to Wegener stockholders, poses no threat to Wegener corporate policy and effectiveness, and represents a substantial premium over the market price of Wegener common stock prior to the public announcement of the Tender Offer.

     51.        Adoption of any defensive measures against the Tender Offer and the Proposed Merger or possible future actions by Radyne ComStream in furtherance of consummating the Proposed Acquisition that would prevent a future board of directors of Wegener from exercising its fiduciary duties — including, but not limited to, amendments to Wegener Bylaws or the Wegener Charter, pursuit of alternative transactions with substantial break-up fees and/or lock-ups, “White Knight” stock issuances, changes to licensing agreements, adoption of a stockholder rights plan, or executive compensation arrangements with substantial payments triggered by a change in control — would itself be a breach of the Director Defendants’ fiduciary duties to Wegener stockholders.

-13-

     52.        Radyne ComStream and Purchaser have no adequate remedy at law.

     WHEREFORE, plaintiffs respectfully request that this Court:

          1.        declare that the Director Defendants have breached their fiduciary obligations to Wegener stockholders under Delaware law by failing to render Section 203 inapplicable to the Proposed Acquisition;

          2.        compel the Director Defendants to approve the Proposed Acquisition for purposes of Section 203 and enjoin them from taking any action to enforce or to apply Section 203 that would impede, thwart, frustrate or interfere with the Proposed Acquisition;

          3.        declare that the Director Defendants have breached their fiduciary obligations to Wegener stockholders under Delaware law by failing to render the Supermajority Vote provision of Article Eighth inapplicable to the Proposed Merger.

          4.        compel the Director Defendants to approve the Proposed Merger for purposes of Section B of Article Eighth and enjoin them from taking any action to enforce or to apply Article Eighth that would impede, thwart, frustrate or interfere with the Proposed Merger.

          5.        temporarily, preliminarily and permanently enjoin Wegener, its employees, agents and all persons acting on its behalf or in concert with it from taking any action or adopting any other measures, or taking any other action designed to impede, or which has the effect of impeding, the Proposed Acquisition or the efforts of Radyne ComStream or Purchaser to acquire control of Wegener;

          6.        temporarily, preliminarily and permanently enjoin defendants, their affiliates, subsidiaries, officers, directors and all others acting in concert with them or on their behalf from bringing any action concerning Section 203, Article Eighth, or any existing or prospective defensive measure adopted by the Wegener Board or otherwise in any other court;

-14-

          7.        declare that the adoption of any further measure — including, but not limited to, amendments to the Wegener Bylaws or the Wegener Charter, pursuit of alternative transactions with substantial break-up fees and/or lock-ups, “White Knight” stock issuances, changes to licensing agreements, adoption of a stockholder rights plan, or executive compensation arrangements with substantial payments triggered by a change in control — that has the effect of impeding, thwarting, frustrating or interfering with the Proposed Acquisition or the efforts of Radyne ComStream or Purchaser to obtain control of Wegener constitutes a breach of the Director Defendant’s fiduciary duties;

          8.        enjoin Wegener and the Director Defendants from adopting any further measure — including, but not limited to, amendments to the Wegener Bylaws or Wegener Charter, pursuit of alternative transactions with substantial break-up fees and/or lock-ups, “White Knight” stock issuances, changes to licensing agreements, adoption of a stockholder rights plan, or executive compensation arrangements with substantial payments triggered by a change in control — that has the effect of impeding, thwarting, frustrating or interfering with the Proposed Acquisition or the efforts of Radyne ComStream or Purchaser to obtain control of Wegener;

          9.        award plaintiffs their costs and disbursements in this action, including reasonable attorneys’ and experts’ fees; and

-15-

     10.        grant plaintiffs such other and further relief as this Court may deem just and proper.

Of Counsel:	Srinivas M. Raju
	Kelly A. Herring
Steven D. Pidgeon	Dawn N. Zubrick
Snell & Wilmer L.L.P.	Richards, Layton & Finger, P.A.
One Arizona Center	One Rodney Square
Phoenix, Arizona 85002-2202	P.O. Box 551
(602) 382-6300	Wilmington, Delaware 19899
	(302) 651-7700
	Attorneys for Plaintiffs
Dated: April 24, 2003

-16- -----END PRIVACY-ENHANCED MESSAGE-----

EX-99.A.10

exv99waw10

EX-99.A.11

exv99waw11