-----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, At3WGYh3uR975cj+nt3xdrHL7o264wOIjL6E+VUODXHEL2X3rqCpjYjeLgZyPOtt ZRHWH7xY0mgtwyoPeZashw== /in/edgar/work/0000950130-00-005335/0000950130-00-005335.txt : 20001006 0000950130-00-005335.hdr.sgml : 20001006 ACCESSION NUMBER: 0000950130-00-005335 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20001005 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ACUSON CORP CENTRAL INDEX KEY: 0000717014 STANDARD INDUSTRIAL CLASSIFICATION: [3845 ] IRS NUMBER: 942784998 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: SEC FILE NUMBER: 005-37247 FILM NUMBER: 735246 BUSINESS ADDRESS: STREET 1: 1220 CHARLESTON RD STREET 2: PO BOX 7393 CITY: MOUNTAIN VIEW STATE: CA ZIP: 94039 BUSINESS PHONE: 4159699112 MAIL ADDRESS: STREET 1: P O BOX 7393 STREET 2: 1220 CHARLESTON RD CITY: MOUNTAIN VIEW STATE: CA ZIP: 74039 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SIEMENS AKTIENGESELLSCHAFT CENTRAL INDEX KEY: 0000790925 STANDARD INDUSTRIAL CLASSIFICATION: [ ] FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: WITTE ISBACHERPLATZ 2 STREET 2: D-80333 CITY: MUNICH GERMANY SC TO-T 1 0001.txt SCHEDULE TO - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- SCHEDULE TO (Rule 14d-100) TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 Acuson Corporation (Name of Subject Company (Issuer)) Sigma Acquisition Corp. a wholly owned subsidiary of Siemens Corporation an indirect wholly owned subsidiary of Siemens Aktiengesellschaft (Name of Filing Persons (Offeror)) Common Stock, $0.0001 par value (Title of Class of Securities) 005113105 (CUSIP Number of class of securities) Kevin M. Royer Siemens Corporation 153 East 53rd Street New York, New York 10022 (212) 258-4000 (Name, Address and Telephone No. of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) with a copy to: John A. Healy, Esq. Clifford Chance Rogers & Wells LLP 200 Park Avenue, New York, New York 10166 (212) 878-8000 ---------------- Calculation of Filing Fee Transaction Valuation* Amount of Filing Fee $812,694,742 $162,539 * For purposes of calculating the fee only. Based on the offer to purchase all of the outstanding shares of common stock, together with the associated rights to purchase shares of series A preferred stock of Acuson Corporation at a purchase price of $23.00 cash per share. According to Acuson, there were 27,753,671 shares outstanding and outstanding options with respect to 7,580,883 shares, in each case as of September 22, 2000. The amount of the filing fee was calculated in accordance with Rule 0-11(d) of the Securities Exchange Act of 1934 as amended. [_]Check the box if any part of the fee is offset as provided by Rule 0- 11(a)(2) and identify the offsetting fee with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form of Schedule and the date of its filing. Amount Previously Paid: Not Applicable Filing Parties: Not Applicable ---------------- ------------------ Form or Registration No.: Not Applicable Date Filed: Not Applicable -------------- ------------------ [_]Check the box if the filing relates solely to preliminary communications made before commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [X]third-party tender offer subject to Rule 14d-1. [_]issuer tender offer subject to Rule 13e-4. [_]going-private transaction subject to Rule 13e-3. [_]amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: [_] - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SCHEDULE TO Item 1. Summary Term Sheet. The information set forth in the section of the Offer to Purchase entitled "Summary Term Sheet" is incorporated herein by reference. Item 2. Subject Company Information. (a) The name of the subject company is Acuson Corporation, a Delaware corporation (the "Company"), and the address of its principal executive offices is 1220 Charleston Road, P.O. Box 7393, Mountain View, California 94039-7393. The telephone number of the Company is (650) 969-9112. (b) This Tender Offer Statement on Schedule TO relates to the commencement by Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Parent"), which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany ("Siemens AG"), of its offer to purchase all of the outstanding shares of common stock, par value $0.0001 per share ("Common Stock"), of the Company, together with the associated rights to purchase shares of series A preferred stock ("Rights") issued pursuant to the Amended and Restated Rights Agreement, dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), at a price of $23.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 5, 2000 (the "Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1), and in the related Letter of Transmittal, a copy of which is attached hereto as Exhibit (a)(2) (which, as they may be amended and supplemented from time to time, together constitute the "Offer"). The information set forth in the introduction to the Offer to Purchase (the "Introduction") is incorporated herein by reference. (c) The information concerning the principal market in which the Shares are traded and certain high and low sales prices for the Shares in such principal market are set forth in Section 6 in the Offer to Purchase ("Price Range of Shares; Dividends") and is incorporated herein by reference. Item 3. Identity and Background of the Filing Person. (a), (b), (c) The information set forth in Section 9 in the Offer to Purchase ("Certain Information Concerning Siemens AG, Parent and Purchaser") and Schedule A to the Offer to Purchase is incorporated herein by reference. Item 4. Terms of the Transaction. (a)(1)(i)-(viii), (xii) The information set forth in the Introduction, Section 1 in the Offer to Purchase ("Terms of the Offer"), Section 2 in the Offer to Purchase ("Acceptance for Payment and Payment for Shares"), Section 3 in the Offer to Purchase ("Procedure for Tendering Shares"), Section 4 in the Offer to Purchase ("Rights of Withdrawal"), Section 5 in the Offer to Purchase ("Certain Federal Income Tax Consequences of the Offer") and Section 11 in the Offer to Purchase ("Purpose of the Offer; Plans for the Company; the Merger") in the Offer to Purchase is incorporated herein by reference. (a)(1)(ix), (x), (xi) Not applicable. (a)(2)(i)-(iv), (vii) The information set forth in the Introduction, Section 1 in the Offer to Purchase ("Terms of the Offer"), Section 5 in the Offer to Purchase ("Certain Federal Income Tax Consequences of the Offer"), Section 10 in the Offer to Purchase ("Background of the Offer; Contacts with the Company") and Section 11 in the Offer to Purchase ("Purpose of the Offer; Plans for the Company; the Merger") is incorporated herein by reference. (a)(2)(v), (vi) Not applicable. 2 Item 5. Past Contacts, Transactions, Negotiations and Agreements. (a), (b) The information set forth in Section 10 in the Offer to Purchase ("Background of the Offer; Contacts with the Company") is incorporated herein by reference. Item 6. Purpose of the Tender Offer and Plans or Proposals. (a), (c)(1), (3-7) The information set forth in Section 11 in the Offer to Purchase ("Purpose of the Offer; Plans for the Company; the Merger") is incorporated herein by reference. (c)(2) None. Item 7. Source and Amount of Funds or Other Consideration. (a) The information set forth in Section 12 in the Offer to Purchase ("Source and Amount of Funds") is incorporated herein by reference. (b) Not applicable. (c) Not applicable. Item 8. Interest in Securities of the Subject Company. The information set forth in the Introduction, Section 8 in the Offer to Purchase ("Certain Information Concerning the Company"), Section 9 in the Offer to Purchase ("Certain Information Concerning Siemens AG, Parent and Purchaser"), Section 11 in the offer to Purchase ("Purpose of the Offer; Plans for the Company; the Merger") and Schedule A to the Offer to Purchase is incorporated herein by reference. Item 9. Persons/Assets, Retained, Employed, Compensated or Used. The information set forth in the Introduction and Section 16 in the Offer to Purchase ("Fees and Expenses") is incorporated herein by reference. Item 10. Financial Statements. (a) Financial information. Not applicable. (b) Pro forma information. Not applicable. Item 11. Additional Information. (a) Other material information. The information set forth in the Letter of Transmittal attached hereto as Exhibit (a)(2) is incorporated herein by reference. Item 12. Exhibits. The following are attached as exhibits to this Schedule TO: (a)(1) Offer to Purchase, dated October 5, 2000. (a)(2) Letter of Transmittal. (a)(3) Notice of Guaranteed Delivery. (a)(4) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(5) Form of Letter to brokers, dealers, commercial banks, trust companies and other nominees. 3 (a)(6) Form of Letter to be used by brokers, dealers, commercial banks, trust companies and other nominees to their clients. (a)(7) Summary newspaper advertisement, dated October 5, 2000 and published in The Wall Street Journal. Exhibit (b) None. Exhibit (d)(1)Agreement and Plan of Merger, dated as of September 26, 2000, by and among Parent, Purchaser and the Company. Exhibit (d)(2)None. Exhibit (g) None. Exhibit (h) None. Item 13. Information Required by Schedule 13E-3. Not applicable. 4 SIGNATURE 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. Date: October 5, 2000 Sigma Acquisition Corp. /s/ Michael W. Schiefen _____________________________________ Name:Michael W. Schiefen Title:President /s/ E. Robert Lupone _____________________________________ Name:E. Robert Lupone Title:Vice President Siemens Corporation /s/ Michael W. Schiefen _____________________________________ Name:Michael W. Schiefen Title:Vice President--Corporate Development /s/ E. Robert Lupone _____________________________________ Name:E. Robert Lupone Title: Senior Vice President, General Counsel and Secretary Siemens Aktiengesellschaft /s/ Goetz Steinhardt _____________________________________ Name:Goetz Steinhardt Title:Corporate Vice President, Medical Engineering Division of Siemens /s/ Erich Reinhardt _____________________________________ Name:Erich Reinhardt Title:Chief Executive Officer and Group President, Medical Engineering Divisionof Siemens 5 EX-99.(A)(1) 2 0002.txt OFFER TO PURCHASE Exhibit (a)(1) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (Including the Associated Rights to Purchase Shares of Series A Preferred Stock) of ACUSON CORPORATION at $23 Net Per Share in Cash by SIGMA ACQUISITION CORP. a wholly owned subsidiary of SIEMENS CORPORATION an indirect wholly owned subsidiary of SIEMENS AKTIENGESELLSCHAFT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY, NOVEMBER 2, 2000, UNLESS THE OFFER IS EXTENDED. THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER, DATED AS OF SEPTEMBER 26, 2000 (THE "MERGER AGREEMENT"), BY AND AMONG SIEMENS CORPORATION, A DELAWARE CORPORATION ("PARENT"), SIGMA ACQUISITION CORP., A DELAWARE CORPORATION ("PURCHASER") AND ACUSON CORPORATION, A DELAWARE CORPORATION (THE "COMPANY"). PURSUANT TO THE MERGER AGREEMENT, AFTER COMPLETION OF THE OFFER AND PROVIDED CERTAIN CONDITIONS ARE MET, PURCHASER WILL BE MERGED WITH AND INTO THE COMPANY (THE "MERGER") AND AS A RESULT OF THE MERGER, SIEMENS CORPORATION WILL BECOME THE SOLE STOCKHOLDER OF THE MERGED COMPANY AND THE STOCKHOLDERS OF THE COMPANY (OTHER THAN PURCHASER AND ITS AFFILIATES) WILL RECEIVE IN THE MERGER THE SAME AMOUNT OF CASH PER SHARE AS IS PAID FOR SHARES PURCHASED THROUGH THE OFFER. THE BOARD OF DIRECTORS OF THE COMPANY, AT A MEETING HELD ON SEPTEMBER 26, 2000, BY UNANIMOUS VOTE DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY AND THE COMPANY'S STOCKHOLDERS, APPROVED THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND APPROVED THE MERGER AGREEMENT. THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE OFFER, TENDER THEIR SHARES IN THE OFFER AND, IF REQUIRED UNDER DELAWARE LAW OR THE COMPANY'S CERTIFICATE OF INCORPORATION OR BYLAWS, VOTE TO ADOPT THE MERGER AGREEMENT. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) A NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $0.0001 PER SHARE (THE "COMMON STOCK"), TOGETHER WITH THE ASSOCIATED RIGHTS TO PURCHASE SHARES OF SERIES A PREFERRED STOCK (THE "RIGHTS" AND, TOGETHER WITH THE COMMON STOCK, THE "SHARES"), OF THE COMPANY BEING VALIDLY TENDERED AND NOT WITHDRAWN ON THE APPLICABLE EXPIRATION DATE OF THE OFFER THAT, TOGETHER WITH ANY SHARES OWNED BY PARENT OR ANY OF ITS AFFILIATES (INCLUDING PURCHASER), REPRESENTS AT LEAST A MAJORITY OF THE TOTAL NUMBER OF (A) ALL OUTSTANDING SHARES PLUS (B) ALL SHARES ISSUABLE UPON THE EXERCISE OF OPTIONS AND OTHER SIMILAR RIGHTS TO PURCHASE SHARES THAT BY THEIR TERMS ARE OR WILL BECOME EXERCISABLE BEFORE DECEMBER 31, 2000 (OR, UNDER CERTAIN CIRCUMSTANCES DESCRIBED IN THIS OFFER TO PURCHASE, MARCH 31, 2001) (THE "MINIMUM CONDITION") AND (II) THE RECEIPT OF APPROVALS REQUIRED BY OR THE EXPIRATION OR TERMINATION OF THE APPLICABLE WAITING PERIODS UNDER UNITED STATES AND GERMAN ANTITRUST AND COMPETITION LAWS. THE OFFER IS ALSO SUBJECT TO THE SATISFACTION OR WAIVER OF CERTAIN OTHER CONDITIONS. SEE SECTIONS 1 AND 13 OF THIS OFFER TO PURCHASE. IMPORTANT Any stockholder desiring to tender all or any portion of such stockholder's Shares should (1) complete and sign the Letter of Transmittal or a facsimile thereof in accordance with the instructions in the Letter of Transmittal, including any required signature guarantees, and mail or deliver the Letter of Transmittal or such facsimile with such stockholder's certificate(s) for the tendered Shares and any other required documents to the Depositary named in this Offer to Purchase, (2) follow the procedure for book-entry tender of Shares set forth in Section 3 of this Offer to Purchase or (3) request such stockholder's broker, dealer, commercial bank, trust company or other nominee to effect the transaction for such stockholder. Stockholders having Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if they desire to tender Shares so registered. Unless the context requires otherwise, all references to Shares or to shares of Company Common Stock in this Offer to Purchase shall include the associated Rights. The Rights are presently evidenced by the certificates for the shares of Company Common Stock and a tender by a stockholder of such stockholder's shares of Common Stock will also constitute a tender of the associated Rights. A stockholder of the Company who desires to tender Shares and whose certificates for such Shares are not immediately available, or who cannot comply with the procedure for book-entry transfer on a timely basis, may tender such Shares by following the procedures for guaranteed delivery set forth in Section 3 of this Offer to Purchase. 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 tender offer materials may be directed to the Information Agent or the Dealer Manager. Stockholders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Dealer Manager for the Offer is: Deutsche Banc Alex. Brown October 5, 2000 TABLE OF CONTENTS
Page SUMMARY.................................................................. i INTRODUCTION............................................................. 1 1.Terms of the Offer.................................................... 3 2.Acceptance for Payment and Payment for the Shares..................... 5 3.Procedure for Tendering Shares........................................ 6 4.Rights of Withdrawal.................................................. 9 5.Certain Federal Income Tax Consequences of the Offer.................. 10 6.Price Range of the Shares; Dividends.................................. 10 7. Effect of the Offer on the Market for the Shares; Stock Quotation, Margin Regulations and Exchange Act Registration..................... 11 8.Certain Information Concerning the Company............................ 12 9.Certain Information Concerning Siemens AG, Parent and Purchaser....... 14 10.Background of the Offer; Contacts with the Company.................... 15 11.Purpose of the Offer; Plans for the Company; the Merger............... 17 12.Source and Amount of Funds............................................ 27 13.Certain Conditions of the Offer....................................... 27 14.Dividends and Distributions........................................... 30 15.Certain Legal Matters................................................. 30 16.Fees and Expenses..................................................... 32 17.Miscellaneous......................................................... 33 INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF SIEMENS AG, PARENT AND PURCHASER.................................................... A-1
SUMMARY This summary highlights important and material information from this Offer to Purchase but does not purport to be complete. To fully understand the offer described in this document and for a more complete description of the terms of the offer described in this document, you should read carefully this entire Offer to Purchase and the Letter of Transmittal (which together, as amended and supplemented, constitute the "Offer"). We have included section references to direct you to a more complete description of the topics contained in this summary. WHO IS OFFERING TO BUY MY SECURITIES? Sigma Acquisition Corp., a Delaware corporation, is offering to buy your Shares as described in this document. That company (which is sometimes referred to in this document as "Purchaser") is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation, which in turn is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany ("Siemens AG"). See Section 9 of this document for further information about Sigma Acquisition Corp., Siemens Corporation and Siemens AG. WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER? Sigma Acquisition Corp. is offering to buy all of the outstanding shares of common stock, including the associated rights to purchase shares of Series A Preferred Stock, of Acuson Corporation. For information about the conditions to which the Offer is subject, see Section 13 of this document. HOW MUCH IS SIGMA ACQUISITION CORP. OFFERING TO PAY AND WHAT IS THE FORM OF PAYMENT? Sigma Acquisition Corp. is offering to pay $23.00, net to each seller in cash, without interest, for each share of common stock, including the associated rights, of Acuson Corporation. See Section 1 of this document for information about the terms of the Offer. DOES SIGMA ACQUISITION CORP. HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT? Yes. Siemens Corporation, the parent of Sigma Acquisition Corp., will be financing the Offer described in this document with funds provided by Siemens AG and its affiliates. See Section 12 of this document for more information about how Siemens Corporation will finance the Offer. ARE SIEMENS CORPORATION'S FINANCIAL RESULTS RELEVANT TO MY DECISION AS TO WHETHER TO TENDER IN THE OFFER? Since the Offer is for cash and is not subject to any financing condition, Siemens Corporation's financial results should not be relevant to your decision on whether to tender your shares of common stock in the Offer. HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE INITIAL OFFERING PERIOD? You may tender your shares of common stock into the Offer until 12:00 midnight, New York City time, on Thursday, November 2, 2000, which is the initial expiration date of the offering period, unless Sigma Acquisition Corp. decides (or is required pursuant to the Merger Agreement) to extend the offering period or to provide a subsequent offering period. See Section 3 of this document for information about tendering your shares of common stock. i CAN THE OFFER BE EXTENDED, AND, IF SO, UNDER WHAT CIRCUMSTANCES? Yes. Sigma Acquisition Corp. may (and must if Acuson requests it in writing to do so), (i) extend and re-extend the Offer on one or more occasions for such period as may be determined by Sigma Acquisition Corp. (each such extension period not to exceed 10 business days at a time), if at the then-scheduled expiration date of the Offer any of the conditions to Sigma's obligations to accept for payment and pay for shares of common stock is not satisfied or waived and (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission or the staff thereof applicable to the Offer. Subject to the terms of the Merger Agreement, Sigma Acquisition Corp. also may extend the Offer on one occasion for an aggregate period of not more than 10 business days if a number of shares of common stock representing at least a majority but less than 90% of the total number of outstanding shares of common stock (plus, in each case, all shares of common stock issuable upon exercise of options and other similar rights that are or will become exercisable before December 31, 2000 (or, if that date is extended, before March 31, 2001)) shall have been validly tendered prior to the expiration of the Offer and not withdrawn. See Section 1 of this document for more information regarding extension of the Offer. WILL THERE BE A SUBSEQUENT OFFERING PERIOD? Following the satisfaction of all the conditions to the Offer and the acceptance of and payment for all the shares of common stock tendered during the offering period, Sigma Acquisition Corp. may elect to provide a subsequent offering period, although Sigma Acquisition Corp. currently has no intention to do so. HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED? Sigma Acquisition Corp. will announce by press release any extension of the Offer no later than 9:00 a.m., New York City time, on the next day after the previously scheduled expiration date. See Section 1 of this document for more information about extension of the Offer. If Sigma Acquisition Corp. determines to provide a subsequent offering period, it will publicly disclose its intentions in accordance with applicable rules, regulations and interpretations of the Securities and Exchange Commission and will issue a press release no later than 9:00 a.m., New York City time, on the next day after the expiration date of the offering period. Any such press release will state the approximate number and percentage of outstanding shares of common stock tendered to date. WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER? The Offer is conditioned upon, among other things, (i) a number of shares of common stock being validly tendered and not withdrawn on the applicable expiration date for the Offer that, together with any shares of common stock owned by Siemens Corporation or any of its affiliates (including Sigma Acquisition Corp.), represents at least a majority of the total number of (a) all outstanding shares of common stock plus (b) all shares of common stock issuable upon exercise of options and other similar rights that by their terms are or will become exercisable before December 31, 2000 (or, under certain circumstances, March 31, 2001)) and (ii) the receipt of approvals required by or the expiration or termination of the applicable waiting periods under United States and German antitrust and competition laws. For a complete description of all of the conditions to which the Offer is subject, see Section 13 of this document. HOW DO I TENDER MY SHARES OF COMMON STOCK? If you hold the certificates for your shares of common stock, you should complete the Letter of Transmittal that was provided with this document and enclose all the documents required by it, including your certificates, and send them to the Depositary at the address listed on the back cover of this document. If your broker holds your shares of common stock for you in "street name" you must instruct your broker to tender your shares of common stock on your behalf. In any case, the Depositary must receive all required documents prior to 12:00 midnight, New York City time, on Thursday, November 2, 2000, which is the initial expiration date of the Offer, unless Sigma Acquisition Corp. decides or is required to extend the Offer. If you cannot comply with any of these procedures, you still may be able to tender your shares of common stock by using the guaranteed delivery procedures described in this document. See Section 3 of this document for more information on the procedures for tendering your shares of common stock. ii UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES OF COMMON STOCK? The tender of your shares of common stock may be withdrawn at any time prior to the expiration date of the offering period. There will be no withdrawal rights during any subsequent offering period; all shares tendered during any such period will be immediately accepted for payment and paid for as tendered. See Section 4 of this document for more information. HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES OF COMMON STOCK? You (or your broker or bank if your shares of common stock were held in "street name") must notify the Depositary at the address and telephone number listed on the back cover of this document, and the notice must include the name of the stockholder that tendered the shares of common stock, the number of shares of common stock to be withdrawn and the name in which the tendered shares of common stock are registered. For complete information about the procedures for withdrawing your previously tendered shares of common stock, see Section 4 of this document. WHAT DOES MY BOARD OF DIRECTORS THINK OF THE OFFER? The Board of Directors of Acuson, at a meeting held on September 26, 2000, by unanimous vote determined that the terms of the Offer and the Merger are fair to, and in the best interests of, Acuson Corporation and Acuson Corporation's stockholders, approved the Merger and the other transactions contemplated by the Merger Agreement and unanimously approved the Merger Agreement. The Board of Directors unanimously recommends that Acuson Corporation's stockholders accept the Offer, tender their shares of common stock in the Offer and, if required under Delaware law or Acuson Corporation's Certificate of Incorporation or Bylaws, vote to adopt the Merger Agreement. IF SIGMA ACQUISITION CORP. CONSUMMATES THE TENDER OFFER, WHAT ARE SIGMA ACQUISITION CORP.'S PLANS WITH RESPECT TO ALL THE SHARES OF COMMON STOCK THAT ARE NOT TENDERED IN THE OFFER? If Sigma Acquisition Corp. purchases at least a majority of the outstanding shares of common stock pursuant to the Offer, it intends to cause a merger to occur between Sigma Acquisition Corp. and Acuson Corporation in which stockholders of Acuson Corporation who have not previously tendered their shares of common stock will also receive $23.00 in cash, subject to their right to dissent and demand the fair cash value of their shares. If Sigma Acquisition Corp. is not able to acquire at least a majority of the outstanding shares of common stock in the Offer, it does not presently intend to acquire any shares of Acuson Corporation common stock. IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES OF COMMON STOCK? The purchase of shares of common stock by Sigma Acquisition Corp. in the Offer will reduce the number of the shares of Acuson Corporation common stock that might otherwise trade publicly and probably will reduce the number of holders of the shares of common stock. These changes could adversely affect the liquidity and market value of the remaining shares of common stock held by the public. The shares of common stock may also cease to be listed on the New York Stock Exchange. Also, Acuson Corporation may cease making filings with the Securities and Exchange Commission or may otherwise cease being required to comply with the Securities and Exchange Commission's disclosure and other rules relating to publicly held companies. See Section 7 of this document for complete information about the effect of the Offer on your shares of common stock. iii WHAT IS THE MARKET VALUE OF MY SHARES OF COMMON STOCK AS OF A RECENT DATE? On September 26, 2000, the last full trading day prior to the public announcement of the Offer, the reported closing price of the common stock on the New York Stock Exchange was $15 11/16 per Share. On October 4, 2000, the last full trading day for which prices were available before the commencement of the Offer, the reported closing price of the common stock on the New York Stock Exchange was $22 11/16 per Share. You should obtain a recent market quotation for your shares of common stock in deciding whether to tender them. See Section 6 of this document for recent high and low sales prices for the shares of common stock. WHO IS RESPONSIBLE FOR THE PAYMENT OF TAXES AND BROKERAGE FEES? Stockholders of record who tender shares of common stock directly will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of the shares of common stock by Sigma Acquisition Corp. pursuant to the Offer. However, any tendering stockholder or other payee who fails to complete and sign the Substitute Form W-9 included in the Letter of Transmittal may be subject to backup federal income tax withholding of 31% of the gross proceeds payable to such stockholder or other payee pursuant to the Offer. See Section 3 of this document for more information. Stockholders who hold their shares of common stock through a broker, bank or other nominee should check with such institution as to whether they charge any service fees. WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER? If you have any questions you can call the Dealer Manager, Deustche Bank Securities Inc. at (877) 305-4920 (toll-free), or the Information Agent, Georgeson Shareholder Communications Inc. at (800) 223-2064 (toll-free). See the back cover of this document for additional contact information. iv To the Holders of Shares of Common Stock of Acuson Corporation INTRODUCTION Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Parent"), which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany ("Siemens AG"), hereby offers to purchase all of the outstanding shares of common stock, par value $0.0001 per share (the "Common Stock"), of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase shares of Series A Preferred Stock (the "Rights" and, together with the Common Stock, the "Shares") issued pursuant to the Amended and Restated Rights Agreement (the "Rights Agreement"), dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended, at $23.00 per Share, net to the seller in cash (the "Common Stock Price"), without interest, 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"). Tendering stockholders who are record holders of their Shares and tender directly to EquiServe Trust Company, N.A. (the "Depositary") will not be obligated to pay brokerage fees or commissions or, subject to Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of the Shares purchased by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker or bank should consult that institution as to whether it charges any service fees. Purchaser will pay all charges and expenses of Deutsche Bank Securities Inc., as dealer manager (the "Dealer Manager"), the Depositary and Georgeson Shareholder Communications Inc. (the "Information Agent"). Unless the context requires otherwise, all references to Shares or shares of Company Common Stock in this Offer to Purchase include the associated Rights, and all references to the Rights include all benefits that may inure to the holders of the Rights pursuant to the Rights Agreement. The Offer and withdrawal rights will expire at 12:00 Midnight, New York City time, on Thursday, November 2, 2000 (the "Expiration Date") unless Purchaser extends (or is required to extend) the time during which the Offer is open, in which event the term "Expiration Date" will mean the latest time and date at which the Offer, as extended, will expire. The Offer is being made pursuant to an Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 26, 2000, by and among Parent, Purchaser and the Company, pursuant to which, upon the terms and subject to the conditions of the Merger Agreement, at the Effective Time (as defined below), in accordance with the Delaware General Corporation Law (the "DGCL"), Purchaser will be merged with and into the Company and the separate corporate existence of Purchaser will thereupon cease (the "Merger") and, following the Merger, the Company will continue its existence under the laws of the State of Delaware. As a result of the Merger, the Company (sometimes referred to in this Offer to Purchase as the "Surviving Corporation") will become a wholly owned subsidiary of Parent. The Merger will become effective at the time (the "Effective Time") of the filing of a certificate of merger with the Secretary of State of the State of Delaware in accordance with the DGCL. In the Merger, each issued and outstanding Share (other than Shares, if any, that are held by stockholders who are entitled to and who properly exercise dissenters' rights ("Dissenting Stockholders") pursuant to Section 262 of the DGCL) shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive, without interest, an amount in cash equal to the Common Stock Price. The Board of Directors of the Company, at a meeting held on September 26, 2000, by unanimous vote determined that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company and the Company's stockholders, approved the Merger and the other transactions contemplated by the Merger Agreement and approved the Merger Agreement. The Board of Directors unanimously recommends that the Company's stockholders accept the Offer, tender their Shares in the Offer and, if required under the DGCL or the Company's Certificate of Incorporation or Bylaws, vote to adopt the Merger Agreement. UBS Warburg LLC ("UBS Warburg"), financial advisor to the Company, has delivered to the Board of Directors of the Company its opinion, dated September 26, 2000 to the effect that, as of that date and based on and subject to the matters set forth in that opinion, the $23.00 per Share cash consideration to be received in the Offer and the Merger by holders of the Shares was fair, from a financial point of view, to such holders (other than Parent and its affiliates). A copy of UBS Warburg's opinion, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken, is attached as an exhibit to the Company's Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D- 9"), which has been filed by the Company with the Securities and Exchange Commission (the "SEC") in connection with the Offer and which is being mailed to stockholders with this Offer to Purchase. Stockholders are urged to, and should, read UBS Warburg's opinion carefully in its entirety. The Offer is conditioned upon, among other things, (i) a number of Shares being validly tendered and not withdrawn on the applicable expiration date for the Offer that, together with any Shares owned by Parent or any of its affiliates (including Purchaser), represents at least a majority of the total number of (a) all outstanding Shares plus (b) all Shares issuable upon exercise of options and other similar rights to purchase Shares that by their terms are or will become exercisable before the Outside Date or, if applicable, the Extended Outside Date (the "Minimum Condition") and (ii) the receipt of approvals required by or the expiration or termination of the applicable waiting periods under United States and German antitrust and competition laws. The Offer is also subject to the other conditions set forth in this Offer to Purchase. See Sections 1 and 13. The Outside Date is December 31, 2000. The Extended Outside Date is March 31, 2001 and will be applicable if at the Outside Date any condition related to antitrust or competition law requirements has not been satisfied. The Merger is subject to Purchaser's accepting and paying for the Shares which are properly tendered in response to the Offer and not withdrawn and to the satisfaction or waiver of certain conditions, including, if required by law, the adoption of the Merger Agreement and the approval of the Merger by the requisite vote of the holders of a majority of the outstanding Shares. Consequently, if Purchaser acquires (pursuant to the Offer or otherwise) at least a majority of the then outstanding Shares, Purchaser will have sufficient voting power to adopt the Merger Agreement and approve the Merger without the vote of any other stockholder. Under the DGCL, if Purchaser acquires (through the Offer or otherwise) at least 90% of the then outstanding Shares, Purchaser will be able to adopt the Merger Agreement and approve the Merger without a vote of the Company's stockholders. If Purchaser acquires (through the Offer or otherwise) at least 90% of the then outstanding Shares, Purchaser intends to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable without a meeting of the Company's stockholders. If, however, Purchaser does not acquire at least 90% of the then outstanding Shares and a vote of the Company's stockholders is required under Delaware law, a longer period of time will be required to effect the Merger. According to the Company, as of September 22, 2000 there were 27,753,671 Shares outstanding and there were 7,580,883 Shares reserved for issuance under then-exercisable stock options pursuant to the Company's stock option and other equity-based incentive plans. Based on that information and on information provided by the Company regarding the number of Shares that will be issuable upon the exercise of options and other similar rights to purchase Shares that are or will become exercisable before the Outside Date (4,190,604 Shares issuable upon exercise of options and other similar rights to purchase Shares according to the Company), the Minimum Condition would be satisfied if 15,972,140 Shares were validly tendered and not withdrawn and in the case of the Extended Outside Date (4,342,250 Shares issuable upon exercise of options and other similar rights to purchase Shares according to the Company), the Minimum Condition would be satisfied if 16,047,962 Shares were validly tendered and not withdrawn. The Company has distributed one Right for each outstanding share of Company Common Stock pursuant to the Rights Agreement. The Company has represented in the Merger Agreement that it has taken, and will take, all action necessary to cause the Rights Agreement to be inapplicable to the transactions contemplated by the Merger Agreement, including the Offer and the Merger, without any payment to the stockholders of the Company. THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION AND THEY SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. 2 THE TENDER OFFER 1.Terms of the Offer. On the terms and subject to the conditions of the Offer, Purchaser will accept for payment and pay for all Shares which are validly tendered on or prior to the Expiration Date (as defined in this Offer to Purchase) and not withdrawn as permitted by Section 4. The term "Expiration Date" means 12:00 Midnight, New York City time, on Thursday, November 2, 2000, unless Purchaser, in accordance with the terms of the Merger Agreement, extends the period during which the Offer is open, in which event the term "Expiration Date" will mean the latest time and date at which the Offer, as extended, will expire. The period from the date of this Offer to Purchase until 12:00 Midnight, New York City time, on Thursday, November 2, 2000, as such period may be extended, is referred to as the "Offering Period." Purchaser may elect, in its sole discretion, to provide a subsequent offering period of three to 20 business days (the "Subsequent Offering Period"). For purposes of the Offer, a "business day" means any day other than a Saturday, Sunday or federal holiday and consists of the time period from 12:01 a.m. through 12:00 midnight, New York City time. A Subsequent Offering Period, if one is provided, is not an extension of the Offering Period. A Subsequent Offering Period would be an additional period of time, following the expiration of the Offering Period, in which stockholders may tender Shares not tendered during the Offering Period. Purchaser will announce its intention to provide a Subsequent Offering Period in accordance with applicable rules, regulations and interpretations of the SEC. Any decision to provide a Subsequent Offering Period will be announced no later than 9:00 a.m., New York City time, on the next business day after the expiration of the Offering Period. Purchaser will announce the approximate number and percentage of the Shares deposited as of the expiration of the Offering Period no later than 9:00 a.m., New York City time, on the next business day following the expiration of the Offering Period, and such securities will be immediately accepted and promptly paid for. All conditions to the Offer (including, if the Offer is extended or amended, the terms and conditions of the extension or amendment (collectively, the "Offer Conditions")) must be satisfied or waived prior to the commencement of any Subsequent Offering Period. The Rights presently are transferable only with the certificates for the Shares, and the surrender for transfer of certificates for any Shares will also constitute the transfer of the Rights associated with the Shares represented by such certificates. Pursuant to the terms of the Merger Agreement, the Company has taken all necessary action so that the Offer will not result in the grant of any Rights or enable or require any Rights to be exercised, distributed or triggered. Subject to the terms of the Merger Agreement (see Section 11 of this Offer to Purchase) and applicable rules and regulations of the SEC, Purchaser expressly reserves the right, in its sole discretion, at any time or from time to time, to extend the Offering Period by giving oral or written notice of such extension to the Depositary. During any such extension of the Offering Period, 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. See Section 4 to this Offer to Purchase for a description of withdrawal rights. Subject to the applicable regulations of the SEC and the terms of the Merger Agreement, Purchaser also expressly reserves the right, in its sole discretion, at any time or from time to time, (i) to delay acceptance for payment of, or payment for, any tendered Shares not theretofore accepted for payment or paid for, (ii) to amend the Offer on the failure of any of the conditions specified in the Merger Agreement and (iii) to waive any condition (other than the Minimum Condition described in this Offer to Purchase) and to modify or change any other term or condition of the Offer, by giving oral or written notice of such delay, amendment, waiver, modification or change to the Depositary. Purchaser will make a public announcement of any such delay, amendment, waiver, modification or change. Subject to the terms of the Merger Agreement, Purchaser has the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer except that Purchaser has agreed that it will not, without the prior written consent of the Company, (i) decrease the Common Stock Price; (ii) change the form of 3 consideration payable in the Offer; (iii) change the Minimum Condition; (iv) limit the number of Shares sought pursuant to the Offer; (v) change the conditions to the Offer (other than conditions that are immaterial and administrative in nature) in a manner adverse to the stockholders of the Company; or (vi) impose additional conditions to the Offer other than conditions that are immaterial and administrative in nature. Pursuant to the Merger Agreement, Purchaser may (and if requested in writing by the Company, will) (i) extend and re-extend the Offering Period on one or more occasions for such period as may be determined by Purchaser in its sole discretion (each such extension period not to exceed 10 business days at a time), if at the then-scheduled expiration date of the Offer any of the Offer Conditions are not satisfied or waived and (ii) extend and re-extend the Offering Period for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Purchaser also may extend the Offering Period on one occasion for not more than 10 business days if the Minimum Condition has been satisfied but less than 90% of the total number of (a) all outstanding Shares plus (b) all Shares issuable upon exercise of options and other similar rights to purchase Shares that by their terms are or will become exercisable before the Outside Date or, if applicable, the Extended Outside Date has been validly tendered and not properly withdrawn as of the Expiration Date; provided, however, that if Purchaser elects to extend the Offering Period for this reason, then all remaining Offer Conditions will be deemed to be irrevocably waived except to the limited extent described in Section 13 of this Offer to Purchase. Upon the terms and subject to the conditions of the Offer (including the Offer Conditions and, 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 validly tendered and not withdrawn promptly after the expiration of the Offering Period. If Purchaser elects to provide a Subsequent Offering Period, it expressly reserves the right, in its sole discretion, at any time or from time to time, to extend the Subsequent Offering Period, not beyond a total of 20 business days, by giving oral or written notice of such extension to the Depositary. Consistent with applicable regulations of the SEC, Purchaser may not accept Shares for payment upon expiration of the Offer while any condition to the Offer remains unsatisfied and unwaived. If there is a Subsequent Offering Period, all Shares tendered during the Subsequent Offering Period will be immediately accepted for payment and paid for as they are tendered. Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by public announcement thereof, such announcement in the case of an extension to be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Subject to applicable law (including Rules 14d-4(d), 14d-6(c) and 14e-1 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), which require that any material change in the information published, sent or given to stockholders in connection with the Offer be promptly disseminated to stockholders in a manner reasonably designed to inform stockholders of such change) and without limiting the manner in which Purchaser may choose to make any public announcement, Purchaser shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a press release to the Dow Jones News Service. Purchaser confirms that if it makes a material change in the terms of the Offer or the information concerning the Offer, or if it waives a material condition of the Offer, Purchaser will extend the Offer to the extent required by Rules 14d-4(d) and 14e-1 under the Exchange Act. If, during the Offering Period, Purchaser, with the prior written approval of the Company, decreases the number of Shares sought pursuant to the Offer or the Common Stock Price, that decrease will be applicable to all holders whose Shares are accepted for payment pursuant to the Offer and, if at the time notice of any decrease is first published, sent or given to holders of such Shares, the Offer is scheduled to expire at any time earlier than the tenth business day from and including the date that notice is first so published, sent or given, the Offer will be extended until the expiration of that ten- business day period. Consummation of the Offer is also conditioned upon expiration or termination of all waiting periods imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations thereunder (the "HSR Act"), obtaining clearance from the German Federal Cartel Authority and the other 4 conditions set forth in Section 13 of this Offer to Purchase. With respect to antitrust matters, see Section 15 of this Offer to Purchase. Purchaser reserves the right but is not obligated, in accordance with applicable rules and regulations of the SEC, to waive any or all of those conditions other than the Minimum Condition. If, by the Expiration Date, any or all of those conditions have not been satisfied, Purchaser may, in its sole discretion, elect to: (i) extend the Offer and, subject to applicable withdrawal rights, retain all tendered Shares until the expiration of the Offer, as extended, subject to the terms of the Offer; (ii) waive all of the unsatisfied conditions (other than the Minimum Condition) and, subject to complying with applicable rules and regulations of the SEC, accept for payment all Shares so tendered; or (iii) terminate the Offer and not accept for payment any Shares and return all tendered Shares to tendering stockholders (subject to the Company's right to require Purchaser to extend the Offering Period in certain instances). In the event that Purchaser waives any condition set forth in Section 13 of this Offer to Purchase, the SEC or its staff may, if the waiver is deemed to constitute a material change to the information previously provided to the stockholders, require that the Offer remain open for an additional period of time and/or that Purchaser disseminate information concerning the waiver. The Company has provided Purchaser with the Company's stockholder lists and security position listings for the purpose of disseminating the Offer to holders of the Shares. This Offer to Purchase, the related Letter of Transmittal and other relevant materials will be mailed by Purchaser to record holders of the Shares and will be furnished by Purchaser to brokers, dealers, banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder lists or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of the Shares. 2.Acceptance for Payment and Payment for the Shares. On the terms and subject to the conditions of the Offer (including the Offer Conditions set forth in Section 13 of this Offer to Purchase and, 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 validly tendered (and not properly withdrawn in accordance with the procedures described in Section 4 of this Offer to Purchase) promptly after the expiration of the Offering Period. Shares will be accepted as soon as practicable after the later to occur of (i) the Expiration Date and (ii) the satisfaction or waiver of the Offer Conditions set forth in Section 13 of this Offer to Purchase. Any determination concerning the satisfaction of the terms and conditions of the Offer will be in the sole discretion of Purchaser. Purchaser expressly reserves the right, in its sole discretion, to delay acceptance for payment of, or, subject to the applicable SEC rules, payment for, Shares in order to comply in whole or in part with any applicable law. If there is a Subsequent Offering Period, all Shares tendered during the Subsequent Offering Period will be immediately accepted for payment and paid for as they are tendered. Parent and its affiliates filed a Notification and Report Form with respect to the Offer under the HSR Act on October 3, 2000. The waiting period under the HSR Act with respect to the Offer will expire at 11:59 p.m. New York City time, on October 18, 2000, unless that waiting period is earlier terminated. Either the Antitrust Division of the United States Department of Justice (the "Antitrust Division") or the United States Federal Trade Commission (the "FTC") may extend the waiting period by requesting additional information or documentary material. If there is such a request, the waiting period will expire at 11:59 p.m., New York City time, on the 10th day after there has been substantial compliance with the request. Any extension of the waiting period will delay acceptance of the Shares for payment. See Section 15 of this Offer to Purchase for additional information concerning the HSR Act and the applicability of the antitrust laws of the United States and foreign jurisdictions to the Offer. For purposes of the Offer, Purchaser will be deemed to have accepted for payment Shares validly tendered and not withdrawn as, if and when Purchaser gives oral or written notice to the Depositary of its acceptance for payment of such Shares pursuant to the Offer. Payment for any 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 the tendering stockholders for the purpose of receiving payments from Purchaser and transmitting such payments to the tendering stockholders. UNDER NO CIRCUMSTANCES WILL PURCHASER PAY INTEREST ON THE COMMON STOCK PRICE REGARDLESS OF ANY EXTENSION OF THE OFFER OR OF ANY 5 DELAY IN PAYING FOR SHARES. In all cases, payment for any Shares accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (i) certificates for such Shares (the "Share Certificates") (or a timely Book Entry Confirmation (as defined below) with respect thereto), (ii) the 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. The price paid to any holder of Shares pursuant to the Offer will be the highest price per Share paid to any other holder of Shares pursuant to the Offer. Upon the deposit of funds with the Depositary for the purpose of making payments to tendering stockholders, Purchaser's obligation to pay for Shares will be satisfied and tendering stockholders must look solely to the Depositary for payment of amounts owed to them by reason of the acceptance of their Shares pursuant to the Offer. If, for any reason, acceptance for payment of or payment for any Shares tendered in response to the Offer is delayed, or Purchaser is prevented from accepting for payment or paying for Shares which are tendered in response to the Offer, the Depositary nevertheless may retain, subject to applicable SEC rules, tendered Shares on behalf of Purchaser and those Shares may not be withdrawn, except to the extent the tendering stockholder properly exercises withdrawal rights as described in Section 4 of this Offer to Purchase. If any tendered Shares are not accepted for payment pursuant to the terms and conditions of the Offer for any reason, or if Share Certificates are submitted evidencing more Shares than are tendered, Share Certificates evidencing unpurchased Shares will be returned, without expense to the tendering stockholder, or such other person as the tendering stockholder shall specify in the Letter of Transmittal, as promptly as practicable following the expiration or termination of the Offer. In the case of any Shares delivered by book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility (as defined below) pursuant to the procedures set forth in Section 3 of this Offer to Purchase, such Shares will be credited to such account maintained at the Book-Entry Transfer Facility as the tendering stockholder shall specify in the Letter of Transmittal, as promptly as practicable following the expiration or termination of the Offer. If no such instructions are given with respect to any Shares delivered by book-entry transfer, any such Shares not tendered or not purchased will be returned by crediting the account at the Book-Entry Transfer Facility designated in the Letter of Transmittal as the account from which such Shares were delivered. Subject to the provisions of the Merger Agreement, Purchaser reserves the right to transfer or assign in whole or in part from time to time to one or more direct or indirect subsidiaries of Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment will not relieve Purchaser of its obligations under the Offer and will in no way prejudice the rights of tendering stockholders to receive payment for any Shares validly tendered and accepted for payment pursuant to the Offer. 3.Procedure for Tendering Shares. Valid Tender. To tender Shares pursuant to the Offer, either (i) a Letter of Transmittal (or a manually signed facsimile thereof) properly completed and duly executed in accordance with the instructions of the Letter of Transmittal, together with any required signature guarantees and certificates for the Shares to be tendered, or, in the case of a book-entry transfer, an Agent's Message (as defined below), and any other required documents must be received by the Depositary prior to the applicable Expiration Date, or the expiration of any Subsequent Offering Period, at one of its addresses set forth on the back cover of this Offer to Purchase or (ii) the tendering stockholder must comply with the guaranteed delivery procedures set forth below. The Rights presently are transferred only with the Share Certificates and the surrender for transfer of Share Certificates will also constitute the transfer of the Rights associated with the shares of Company Common Stock represented by such Share Certificates. Pursuant to the terms of the Merger Agreement, the Company has taken all necessary action so that the Offer will not result in the grant of any Rights or enable or require any Rights to be exercised, distributed or triggered. 6 Book-Entry Delivery. The Depositary will establish an account with respect to the Shares at The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the Book-Entry Transfer Facility's systems may make book-entry transfer of the Shares by causing the Book-Entry Transfer Facility to transfer such Shares into the Depositary's account in accordance with the Book-Entry Transfer Facility's procedures for such transfer. However, although delivery of the Shares may be effected through book-entry transfer, either the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or an Agent's Message in lieu of the Letter of Transmittal, and any other required documents, must, in any case, be transmitted to and received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase by the Expiration Date, or the expiration of any Subsequent Offering Period, or the tendering stockholder must comply with the guaranteed delivery procedures described below. The confirmation of a book-entry transfer of the Shares into the Depositary's account at the Book-Entry Transfer Facility as described above is referred to in this Offer to Purchase as a "Book-Entry Confirmation." The term "Agent's Message" means a message transmitted by the Book-Entry Transfer Facility to, and received by, the Depositary and forming a part of a Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has received an express acknowledgment from the participant in the Book-Entry Transfer Facility tendering the Shares which are the subject of such Book-Entry Confirmation, that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that Purchaser may enforce such agreement against the participant. 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 any Share Certificates, the Letter of Transmittal and all other required documents, including delivery through the Book-Entry Transfer Facility, is at the election and risk of the tendering stockholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by Book-Entry Confirmation). If delivery is by mail, it is recommended that the stockholder use properly insured registered mail with return receipt requested. In all cases, sufficient time should be allowed to ensure timely delivery. Signature Guarantees. Except as otherwise provided below, all signatures on a Letter of Transmittal must be guaranteed by 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 (each, an "Eligible Institution"). Signatures on a Letter of Transmittal need not be guaranteed (i) if the Letter of Transmittal is signed by the registered holder (which term, for purposes of this section, includes any participant in the Book-Entry Transfer Facility's system whose name appears on a security position listing as the owner of the Shares) of the Shares tendered therewith and such registered holder has not completed the box entitled "Special Payment Instructions" or the box entitled "Special Delivery Instructions" on the Letter of Transmittal or (ii) if such Shares are tendered for the account of an Eligible Institution. See Instructions 1 and 5 of the Letter of Transmittal. If the certificates for any 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 any 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 must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered holders or owners appear on the Share Certificates, with the signatures on the certificates or stock powers guaranteed as described above. See Instructions 1 and 5 of the Letter of Transmittal. Guaranteed Delivery. A stockholder who desires to tender Shares pursuant to the Offer and whose Share Certificates are not immediately available or who cannot comply with the procedure for book-entry transfer on a timely basis, or who cannot deliver all required documents to the Depositary prior to the applicable Expiration Date, or the expiration of any Subsequent Offering Period, may tender such Shares by following all of the procedures set forth below: 7 (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 applicable Expiration Date, or the expiration of any Subsequent Offering Period; and (iii) the certificates for all tendered Shares, in proper form for transfer (or a Book-Entry Confirmation with respect to all such 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 in lieu of the Letter of Transmittal), and any other required documents, are received by the Depositary within three trading days after the date of execution of such 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 to the Depositary or transmitted by telegram, facsimile transmission or mail to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in such Notice of Guaranteed Delivery. In all cases, Shares will not be deemed validly tendered unless a properly completed and duly executed Letter of Transmittal (or a facsimile thereof) or, in the case of a book-entry transfer, an Agent's Message in lieu of the Letter of Transmittal is received by the Depositary. Other Requirements. Notwithstanding any provision of this document, payment for the Shares accepted for payment pursuant to the Offer will in all cases be made only after timely receipt by the Depositary of the instruments and documents referred to in Section 2 of this Offer to Purchase. Tender Constitutes an Agreement. The valid tender of any Shares pursuant to one of the procedures described above will constitute a binding agreement between the tendering stockholder and Purchaser upon the terms and subject to the conditions of the Offer. Appointment. By executing a Letter of Transmittal as set forth above, the tendering stockholder will irrevocably appoint designees of Purchaser as such stockholder's attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of such stockholder's rights with respect to the Shares tendered by such stockholder and accepted for payment by Purchaser and with respect to any and all non-cash dividends, distributions, rights, and other shares of Company Common Stock or other securities issued or issuable in respect of such Shares on or after September 26, 2000 (collectively, "Distributions"). All such 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 deposits the payment for such Shares with the Depositary. All such powers of attorney and proxies will be irrevocable and will be deemed granted in consideration of the acceptance for payment by Purchaser of the Shares tendered in accordance with the terms of the Offer. Upon the effectiveness of such appointment, all prior powers of attorney, proxies and consents given by such stockholder will be revoked, and no subsequent powers of attorney, proxies and consents may be given (and, if given, will not be deemed effective). Purchaser's designees will be empowered to exercise all voting and other rights of such stockholder with respect to such Shares (and any and all Distributions) as they, in their sole discretion, may deem proper at any annual, special or adjourned meeting of the stockholders of the Company, actions by written consent in lieu of any such meeting or otherwise. Purchaser reserves the right to require that, in order for any Shares to be deemed validly tendered, immediately upon Purchaser depositing the payment for such Shares with the Depositary, Purchaser must be able to exercise full voting, consent and other rights with respect to such Shares (and any and all Distributions). Determination of Validity. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of any tender of the Shares will be determined by Purchaser in its sole discretion, which determination will be final and binding. Purchaser reserves the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of or payment for which may, in the 8 opinion of Purchaser's counsel, be unlawful. Purchaser also reserves the absolute right to waive any defect or irregularity in the tender of any Shares by any particular stockholder whether or not similar defects or irregularities are waived in the case of other stockholders. No tender of any Shares will be deemed to have been validly made until all defects and irregularities relating thereto have been cured or waived. None of Siemens AG, Parent, Purchaser, the Depositary, the Information Agent, the Dealer Manager 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. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and Instructions thereto) will be final and binding. Backup Withholding. In order to avoid "backup withholding" of Federal income tax on payments of cash pursuant to the Offer, a stockholder surrendering Shares in the Offer must, unless an exemption applies, provide the Depositary with such stockholder's correct taxpayer identification number ("TIN") on a Substitute Form W-9 and certify under penalties of perjury that such TIN is correct and that such stockholder is not subject to backup withholding. If a stockholder does not provide such stockholder's correct TIN or fails to provide the certifications described above, the Internal Revenue Service (the "IRS") may impose a penalty on such stockholder and payment of cash to such stockholder pursuant to the Offer may be subject to backup withholding of 31%. All stockholders surrendering Shares pursuant to the Offer should complete and sign the main signature form and the Substitute Form W-9 included as part of the Letter of Transmittal to provide the information and certification necessary to avoid backup withholding (unless an applicable exemption exists and is proved in a manner satisfactory to Purchaser and the Depositary). Certain stockholders (including, among others, all corporations and certain foreign individuals and entities) are not subject to backup withholding. Non- corporate foreign stockholders should complete and sign the main signature form and a Form W-8, Certificate of Foreign Status, a copy of which may be obtained from the Depositary, in order to avoid backup withholding. See Instruction 8 to the Letter of Transmittal. 4.Rights of Withdrawal. Tenders of the Shares made pursuant to the Offer are irrevocable except that Shares tendered pursuant to the Offer may be withdrawn at any time prior to the expiration of the Offering Period and, unless theretofore accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn at any time after December 3, 2000. There will be no withdrawal rights during any Subsequent Offering Period for any Shares tendered during the Subsequent Offering Period. 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. Any such notice of withdrawal must specify the name of the person having tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the names in which the certificate(s) evidencing the Shares to be withdrawn are registered, if different from that of the person who tendered such Shares. The signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry tender as set forth in Section 3 of this Offer to Purchase, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares. If certificates for the Shares to be withdrawn have been delivered or otherwise identified to the Depositary, the name of the registered holder and the serial numbers of the particular certificates evidencing the Shares to be withdrawn must also be furnished to the Depositary as aforesaid prior to the physical release of such certificates. All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by Purchaser, in its sole discretion, which determination shall be final and binding. None of Siemens AG, 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 failure to give such notification. Withdrawals of tendered Shares may not be rescinded, and any Shares properly withdrawn will be deemed not to have been validly tendered for purposes of the Offer. However, 9 withdrawn Shares may be re-tendered by following one of the procedures described in Section 3 of this Offer to Purchase at any time prior to the applicable Expiration Date, or the expiration of any Subsequent Offering Period. If Purchaser extends the Offer, is delayed in its acceptance for payment of any Shares, or is unable to accept for payment any Shares pursuant to the Offer, for any reason, then, without prejudice to Purchaser's rights under this Offer, the Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares, but such Shares may be withdrawn to the extent that tendering stockholders are entitled to withdrawal rights as set forth in this Section 4. 5.Certain Federal Income Tax Consequences of the Offer. Sales of the Shares pursuant to the Offer and the exchange of the Shares for cash pursuant to the Merger will be taxable transactions for Federal income tax purposes and may also be taxable under applicable state, local and other tax laws. For Federal income tax purposes, a stockholder whose Shares are purchased pursuant to the Offer or who receives cash as a result of the Merger will realize gain or loss equal to the difference between the adjusted basis of the Shares tendered or exchanged and the amount of cash received therefor. Such gain or loss will be capital gain or loss if the Shares are held as capital assets by the stockholder. Long-term capital gain of a non-corporate stockholder is generally subject to a maximum tax rate of 20% in respect of property held for more than one year. The income tax discussion set forth above is included for general information only and may not be applicable to stockholders in special situations such as stockholders who received their Shares upon the exercise of stock options or otherwise as compensation and stockholders who are not United States persons. Stockholders should consult their own tax advisors with respect to the specific tax consequences to them of the Offer and the Merger, including the application and effect of federal, state, local, foreign or other tax laws. 6.Price Range of the Shares; Dividends. The Shares are listed on the NYSE under the symbol "ACN". The following table sets forth, for the calendar quarters indicated, the high and low closing sales prices for the Shares on the NYSE based on public sources:
Sales Price ------------- High Low ------ ------ Calendar Year 1998: First Quarter............................................... $20.19 $16.88 Second Quarter.............................................. 19.69 17.31 Third Quarter............................................... 18.19 14.63 Fourth Quarter.............................................. 19.06 13.63 1999: First Quarter............................................... $15.44 $13.00 Second Quarter.............................................. 17.94 14.88 Third Quarter............................................... 17.44 12.06 Fourth Quarter.............................................. 12.69 10.00 2000: First Quarter............................................... $15.50 $12.31 Second Quarter.............................................. 15.63 11.88 Third Quarter............................................... 22.75 12.13 Fourth Quarter (through October 4, 2000).................... 22.75 22.69
On September 26, 2000, the last full trading day prior to the public announcement of the terms of the Offer and the Merger, the reported closing price on the NYSE was $15 11/16 per Share. On October 4, 2000, the last full 10 trading day prior to commencement of the Offer, the reported closing price on the NYSE was $22 11/16 per Share. Stockholders are urged to obtain a current market quotation for the shares of Company Common Stock. According to the Company's publicly available documentation and filings with the SEC, the Company did not declare or pay any cash dividends during any of the periods indicated in the above table. In addition, under the terms of the Merger Agreement, the Company is not permitted to declare or pay dividends with respect to the Shares without the prior written consent of Parent, and Parent does not intend to consent to any such declaration or payment. See Section 11 of this Offer to Purchase. 7. Effect of the Offer on the Market for the Shares; Stock Quotation, Margin Regulations and Exchange Act Registration. Market for the Shares. The purchase of any Shares by Purchaser pursuant to the Offer will reduce the number of Shares that might otherwise trade publicly and may reduce the number of holders of the Shares, which could adversely affect the liquidity and market value of the remaining Shares held by the public. Stock Quotation. The Shares are listed on the NYSE under the symbol "ACN." After consummation of the Offer and depending upon the aggregate market value and the per share price of any Shares not purchased pursuant to the Offer, the Shares may no longer meet the requirements for continued listing on the NYSE. According to the NYSE's published guidelines, the NYSE will consider delisting shares if, among other things, the number of publicly held shares (excluding shares held by officers, directors, their immediate families and other concentrated holders of 10% or more ("NYSE Excluded Holdings")) is less than 600,000 (subject to proportionate reduction if the unit of trading is less than 100 shares), there are fewer than 400 stockholders (or, if the average trading volume for the most recent 12 months is less than 100,000 shares, fewer than 1,200 stockholders), or the aggregate market value of publicly-held Shares (excluding NYSE Excluded Holdings), subject to certain adjustments based upon market conditions, is less than $8,000,000. According to information furnished to Purchaser by the Company as of the close of business on September 22, 2000, there were approximately 1,290 holders of record of the Shares not including beneficial holders of any Shares in street name, and there were 27,753,671 Shares outstanding. If the Shares were to be delisted, the associated Rights would be delisted as well. If the NYSE were to delist the Shares, the market for the Shares could be adversely affected. It is possible that the Shares would be traded or quoted on other securities exchanges or in the over-the-counter market, and that price quotations would be reported by such exchanges, or other sources. The extent of the public market for the Shares and the availability of such quotations would, however, depend upon the number of stockholders and/or the aggregate market value of the Shares remaining at such time, the interest in maintaining a market in the Shares on the part of securities firms, the possible termination of registration of the Shares under the Exchange Act and other factors. Purchaser cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect on the market price for, or marketability of, the Shares or whether it would cause future market prices to be greater or lesser than the Common Stock Price. Margin Regulations. The Shares are presently "margin securities" under the regulations of the Board of Governors of the Federal Reserve Board (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 in which event the Shares would be ineligible as collateral for margin loans made by brokers. Exchange Act Registration. The Shares are currently registered under the Exchange Act. Such registration may be terminated by the Company upon application to the SEC if the outstanding Shares are not listed on a national securities exchange and if there are fewer than 300 holders of record of such Shares. Termination of registration of the Shares under the Exchange Act would reduce the information required to be furnished by the 11 Company to its stockholders and to the SEC and would make certain provisions of the Exchange Act, such as the short-swing profit recovery provisions of Section 16(b) and the requirement to furnish a proxy statement in connection with stockholders' meetings pursuant to Section 14(a) and the related requirement to furnish an annual report to stockholders, no longer applicable with respect to the Shares. Furthermore, the ability of "affiliates" of the Company and persons holding "restricted securities" of the Company to dispose of such securities pursuant to Rule 144 under the Securities Act of 1933, as amended, may be impaired or eliminated. If registration of the Shares under the Exchange Act were terminated, the Shares would no longer be eligible for listing on the NYSE or for continued inclusion on the Federal Reserve Board's list of "margin securities". Purchaser intends to seek to cause the Company to apply for termination of registration of the Shares as soon as possible after consummation of the Offer if the requirements for termination of registration are met. If registration of the Shares is not terminated prior to the Merger, then the registration of such Shares under the Exchange Act and the listing of such Shares on the NYSE will be terminated following the completion of the Merger. 8.Certain Information Concerning the Company. The Company is a Delaware corporation with its principal executive offices located at 1220 Charleston Road, Mountain View, California 94039 (telephone number 650-969-9112). The Company, incorporated in 1981, is a manufacturer, worldwide marketer and service provider of high-performance medical diagnostic ultrasound systems and image management products. The Company's customers include hospitals, clinics, and healthcare delivery systems throughout the world which use the Company's products for a broad range of clinical applications including radiology, cardiology, obstetrical/gynecological and peripheral vascular. The Company is organized based upon the nature of the products and services it offers. Under this organizational structure, the Company operates in two fundamental business segments: product and service. The product segment includes the development, manufacture and sale of the Company's systems that generate, display, archive and retrieve medical diagnostic ultrasound images. The service segment provides service and support for the Company's products in accordance with the various service contracts and other purchase arrangements the Company makes available to its customers. The following selected consolidated financial data relating to the Company and its subsidiaries has been taken or derived from the audited financial statements contained in the Company's Annual Reports on Form 10-K for the fiscal years ended December 31, 1999 and December 31, 1998 (the "Company 10- K's") and the unaudited financial statements contained in the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended July 1, 2000 (the "Company 10-Q"), each as filed with the SEC pursuant to the Exchange Act. More comprehensive financial information is included in the Company 10-K's and the Company 10-Q (including management's discussion and analysis of financial condition and results of operation) and the other documents filed by the Company with the SEC, and the following summary is qualified in its entirety by reference to such reports and other documents and all of the financial information and notes contained in those reports and documents. Copies of such reports and other documents may be examined at or obtained from the SEC (including through the SEC's website) and the NYSE in the manner set forth below. 12 ACUSON CORPORATION SELECTED CONSOLIDATED FINANCIAL INFORMATION (in thousands, except per share data)
Six Months Year Ended December 31, Ended July 1, -------------------------- 2000 1999 1998 1997 ------------- -------- -------- -------- (unaudited) Income Statement Data: Total Net Sales...................... $231,451 $475,901 $455,089 $437,762 Total Cost of Sales.................. 125,952 255,354 239,740 231,003 -------- -------- -------- -------- Gross Profit......................... 105,499 220,547 215,349 206,759 Total Operating Expenses............. 98,898 202,484 185,048 177,785 -------- -------- -------- -------- Income from Operations............... 6,601 18,063 30,301 28,974 -------- -------- -------- -------- Income before Income Taxes........... 4,628 14,409 28,661 29,833 Provision for Income Taxes........... 1,273 7,749 7,839 7,456 -------- -------- -------- -------- Net Income........................... $ 3,355 $ 6,660 $ 20,822 $ 22,377 ======== ======== ======== ======== Earnings per Share: Basic................................ $ 0.12 $ 0.25 $ 0.75 $ 0.78 ======== ======== ======== ======== Diluted.............................. $ 0.12 $ 0.24 $ 0.73 $ 0.73 ======== ======== ======== ======== Balance Sheet Data (at period end): Total Current Assets................. $316,391 $321,024 $288,880 $271,334 ======== ======== ======== ======== Total Assets......................... $429,334 $439,521 $395,072 $362,828 ======== ======== ======== ======== Total Current liabilities............ $120,894 $135,019 $189,484 $152,729 Total Stockholders' Equity........... 224,040 219,302 205,588 201,099 ======== ======== ======== ======== Total Liabilities and Stockholders' Equity.............................. $429,334 $439,521 $395,072 $362,828 ======== ======== ======== ========
Except as otherwise set forth in this Offer to Purchase, the information concerning the Company contained in this Offer to Purchase has been taken from or based upon publicly available documents and records on file with the SEC and other public sources and is qualified in its entirety by reference to those documents and records. Although Siemens AG, Purchaser, Parent and the Dealer Manager have no knowledge that would indicate that any statements contained in this Offer to Purchase based on those documents and records are untrue, Siemens AG, Parent, Purchaser and the Dealer Manager cannot take responsibility for the accuracy or completeness of the information contained in such documents and records, or for any failure by the Company to disclose events which may have occurred or may affect the significance or accuracy of any such information but which are unknown to the Siemens AG, Parent, Purchaser or the Dealer Manager. Other Financial Information. During the course of the discussions and information exchange between Parent, Siemens AG and the Company that led to the execution of the Merger Agreement, the Company provided Parent and Siemens AG and its financial advisors with certain information about the Company and its financial performance which is not publicly available. The information provided included financial projections for the Company as an independent company for fiscal years 2000, 2001 and 2002 (i.e., without regard to the impact on the Company of a transaction with Parent and Purchaser) and the Company's budget for fiscal year 2000. The financial projections included, among other things, the following forecasts of the Company's consolidated revenues and net income, respectively: in 2000, $502.7 million and $16.7 million; in 2001, $595.9 million and $35.4 million; and in 2002, $687.3 million and $55.0 million. 13 The Company has advised Siemens AG, Parent and Purchaser that it does not as a matter of course make public any projections as to future performance or earnings, and the aforementioned projections are included in this Offer to Purchase solely because such information was provided to Parent, Siemens AG and their financial advisors during the course of Siemens AG's and Parent's evaluation of the Company. Siemens AG, Parent and Purchaser did not rely on such information in their valuation of the Company. The projections were not prepared with a view to public disclosure or compliance with the published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants regarding projections or forecasts. The Company has advised Siemens AG, Parent and Purchaser that (i) its internal operating projections 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 various interpretations and periodic revision based on actual experience and business developments and (ii) the projections were based on a number of internal assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters that are inherently subject to significant economic and competitive uncertainties, all of which are difficult to predict and some of which are beyond the control of the Company. Accordingly, there can be no assurance, and no representation or warranty is or has been made by any of the Company, Siemens AG, Parent, Purchaser or any of their representatives that actual results will not vary materially from those described above. The foregoing information is forward-looking in nature and inherently subject to significant uncertainties and contingencies, including industry performance, general business and economic conditions, currency exchange rates, customer requirements, competition, adverse changes in applicable laws, regulations or rules governing environmental, tax and accounting matters and other matters. The inclusion of this information should not be regarded as an indication that the Company, Siemens AG, Parent, Purchaser or anyone who received this information then considered, or now considers, it a reliable prediction of future events, and this information should not be relied on as such. None of the Company, Siemens AG, Parent, Purchaser or any of their respective financial advisors or the Dealer Manager assumes any responsibility for the validity, reasonableness, accuracy or completeness of the projections described above. None of the Company, Siemens AG, Parent, Purchaser or any of their respective financial advisors or the Dealer Manager intends to, and each of them disclaims any obligation to, update, revise or correct such projections if they are or become inaccurate (even in the short term). The projections have not been adjusted to reflect the effects of the Offer or the Merger. Available Information. The Company is subject to the information and reporting requirements of the Exchange Act and in accordance therewith is obligated to file reports and other information with the SEC relating to its business, financial condition and other matters. 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, any material interests of such persons in transactions with the Company and other matters is required to be disclosed in proxy statements distributed to the Company's stockholders and filed with the SEC. Such reports, proxy statements and other information should be available for inspection at the public reference room at the SEC's offices at 450 Fifth Street, N.W., Washington, D.C., 20549 and also should be available for inspection and copying at the regional offices of the SEC located at Seven World Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60611. Copies may be obtained, by mail, upon payment of the SEC's customary charges, by writing to its principal office at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and can be obtained electronically on the SEC's Website at http://www.sec.gov. Such material should also be available for inspection at the NYSE, 20 Broad Street, New York, New York 10005, on which exchange the Shares are traded. 9.Certain Information Concerning Siemens AG, Parent and Purchaser. Siemens AG is a corporation organized under the laws of the Federal Republic of Germany, with its principal executive offices at Wittelsbacherplatz 2, D- 80333 Munich, Federal Republic of Germany. The telephone number of Siemens AG at such location is 011-49-89-636-00. Siemens AG's principal business is the design, development, manufacture and marketing of a wide range of electrical and electronic products and systems. 14 Parent is a corporation organized under the laws of the State of Delaware, with its principal executive offices at 153 East 53rd Street, New York, NY 10022. All of the outstanding capital stock of Parent is held by Siemens Beteiligungsverwaltungs, GmbH ("SBV"), Siemens Nixdorf Information systeme AG ("SNI") (each of which is a corporation organized under the laws of the Federal Republic of Germany), Siemens Building Technologies Ltd. ("SBT"), a corporation organized under the laws of Switzerland, and Italian Holding Company Incorporated ("IHC"), a Delaware corporation. Each of SBV, SNI and SBT is a direct wholly owned subsidiary of Siemens AG and IHC is a direct wholly owned subsidiary of SBV. Parent serves as the holding company for businesses of Siemens AG in the United States, and is responsible for developing, coordinating and maintaining the overall business strategy of Siemens AG in the United States. Purchaser is a Delaware corporation organized in order to enter into the transactions which are the subject of the Merger Agreement (including the Offer and the Merger). The principal executive offices of Purchaser are located at 153 East 53rd Street, New York, NY 10022. Purchaser is a wholly owned subsidiary of Parent. Purchaser does not have any significant assets or liabilities and has not engaged in activities other than those incident to its formation and capitalization, its execution of the Merger Agreement and the preparation of the Offer and the Merger. Other Information Regarding Siemens AG, Parent and Purchaser. The name, citizenship, business address, business telephone number, current principal occupation (including the name, principal business and address of the organization in which such occupation is conducted), and material positions held during the past five years (including the name, principal business and address of the organization in which such occupation was conducted), of each of the directors and executive officers of Siemens AG, Parent and Purchaser are set forth in Schedule A to this Offer to Purchase. None of Siemens AG, Parent or Purchaser, or, to the best of their knowledge, any of the persons listed in Schedule A hereto nor any associate or majority- owned subsidiary of any of the foregoing, beneficially owns or has a right to acquire any Shares or has engaged in any transactions in the Shares in the past 60 days. None of Siemens AG, Parent or Purchaser has purchased any Shares during the past two years. Except as set forth in Section 10 of this Offer to Purchase, there have been no negotiations, transactions or material contacts between Siemens AG, Parent or Purchaser, or, to the best of their knowledge, any of the persons listed in Schedule A hereto, on the one hand, and the Company or its affiliates, on the other hand, concerning a merger, consolidation or acquisition, a tender offer or other acquisition of securities, an election of directors, or a sale or other transfer of a material amount of assets. Except as described in Section 10 of this Offer to Purchase, none of Siemens AG, Parent or Purchaser, or, to the best of their knowledge, any of the persons listed in Schedule A hereto, had any transaction with the Company or any of its executive officers, directors or affiliates that would require disclosure under the rules and regulations of the SEC applicable to the Offer. 10.Background of the Offer; Contacts with the Company. Siemens and its affiliates have been generally aware of the Company and its business activities for some time. Various Siemens personnel also have, from time to time, had contact in a business setting with the Company's officers and employees at industry related conferences and otherwise. In addition, the Company and a Siemens affiliate are parties to a Patent Cross-License Agreement pursuant to which they share certain of their patents and technology relating to medical ultrasound equipment. Except as set forth below, however, in the past two years, Siemens AG, Parent and the Company had no previous contacts in the form of contracts, agreements or other business dealings relating to a business combination or similar transaction. In early April 2000, at the direction of the Company, representatives of UBS Warburg contacted representatives of Siemens to express the Company's interest in exploring the possibility of a business combination involving the Company and Siemens or one of its affiliates. The Company and Siemens agreed to hold further discussions in Nuremberg, Germany on May 5, 2000. On May 5, 2000, the Company and Siemens AG entered into a confidentiality agreement on customary terms that would permit Siemens AG and Parent to obtain confidential information required to evaluate a 15 potential transaction with the Company. Also on May 5, 2000, in Nuremberg, Dr. Samuel H. Maslak, Chairman of the Board and Chief Executive Officer of the Company and Mr. Barry Zwarenstein, Vice President and Chief Financial Officer of the Company, along with representatives of UBS Warburg, met with Prof. Dr. Erich Reinhardt, Chief Executive Officer and Group President of Siemens Medical Engineering, Bernhard Halfpap, Head of Business Planning of Siemens Medical Engineering and John Pavlidis, President of the Ultrasound Division of Siemens Medical Systems, Inc., to discuss the strategic advantages of combining the operations of the Company and Siemens, the complementary nature of their respective businesses and the potential advantages to their customers of a combination. Telephone conversations among members of Siemens senior management, and members of the Company's senior management and representatives of the Company's financial advisors were held throughout May and early June 2000 to discuss further a possible business combination. On June 9, 2000, certain members of Siemens' management met with the Executive Committee of the Management Board of Siemens AG (the "Siemens Board") to discuss the merits of a possible acquisition of the Company. After discussing a presentation made by Siemens' management, the Siemens Board authorized its management team to proceed with negotiations for an acquisition or other business combination with the Company. On June 19, 2000, Siemens AG engaged Deutsche Banc Alex. Brown as its financial advisor with respect to a potential business combination between Siemens and the Company. On June 26, 2000, members of Siemens management met with Siemens' financial advisor to discuss the potential business combination with the Company. During the period from June 26, 2000 through July 7, 2000, further meetings and telephone conversations among members of Siemens' management and representatives of Siemens' financial advisor were held to evaluate and consider a business combination with the Company. On July 12, 2000, Siemens delivered to the Company a letter indicating Siemens' interest in exploring further a possible business combination with the Company, subject to completion of due diligence and the negotiation of satisfactory definitive agreements. On July 27, 2000 and July 31, 2000, Dr. Maslak and Prof. Dr. Reinhardt had telephone conversations in which they discussed a process and timetable for exploring the potential advantages of a business combination and the method by which due diligence could be pursued. On August 8, 2000, members of the Company's senior management and members of Siemens' senior management and financial advisors for the Company and Siemens AG, met to continue to discuss the benefits of a proposed business combination and additional due diligence matters. On August 16, 2000, Dr. Maslak and Prof. Dr. Reinhardt held a telephone conversation in which they discussed the results of the August 8 meeting and arranged for further meetings between the two companies. Between August 16, 2000 and August 29, 2000, members of the Company's senior management and members of Siemens' senior management, as well as the two companies' advisors, held meetings in Palo Alto, California and Boston, Massachusetts and had a number of telephone conversations to continue exploring the potential advantages of a transaction and the nature and structure of a business combination. Also during this period, Siemens personnel and Siemens' legal and financial advisors conducted a limited legal and financial due diligence investigation of the Company. On September 7, 2000, members of the Company's senior management and members of Siemens' management, together with the financial advisors for the Company and Siemens AG, met to discuss further the terms of a possible business combination, including a price that Siemens would be willing to pay for each Share. After negotiations over the purchase price, Siemens proposed a price of $23.00 for each Share. On September 8, 2000, Dr. Maslak contacted Prof. Dr. Reinhardt and indicated that the Company wished to proceed with the proposed transaction, subject to the negotiation of a definitive agreement. 16 On September 11, 2000, Clifford Chance Rogers and Wells LLP, Siemens' legal counsel, circulated an initial draft of the Merger Agreement to the Company and Cooley Godward. On September 16, 2000, members of the Company and Siemens' management and their respective legal and financial advisors met to discuss the principal terms of the proposed transaction. The principal issues discussed among the parties during these discussions included the nature and extent of the parties' representations and warranties, the conditions to the Offer, the covenants regarding interim operation of the Company, the parties' respective rights to terminate the Merger Agreement, the amount of the termination payment that would be required of the Company and the circumstances under which such termination payment would become payable, and Parent's commitment with respect to the Company's benefit plans and awards for employees. Between September 16 and September 26, 2000, Siemens and its legal counsel, financial advisors and accountants conducted additional confirmatory due diligence on the Company, and representatives of both parties continued to negotiate the terms of the definitive Merger Agreement. On September 25, 2000, the Board of Directors of the Company held a special meeting to review the principal terms of the proposed transaction. On September 26, 2000, certain members of Siemens' management met with the Siemens Board to present the findings of their due diligence inquiries regarding the possible acquisition of the Company and to seek the Siemens Board's approval to acquire all of the outstanding Shares. After considering the issues presented by its management, the Siemens Board authorized management of Siemens to proceed with the acquisition on substantially the terms negotiated. On September 26, 2000, the Board of Directors of the Company held a special meeting to review the status of final negotiations with Siemens. At the meeting, Cooley Godward updated the Board on the changes negotiated to the definitive Merger Agreement since the previous day's special meeting of the Board. Also at this meeting, UBS Warburg rendered to the Board its oral opinion (confirmed by delivery of a written opinion dated September 26, 2000) to the effect that, as of September 26, 2000 and based on and subject to certain matters stated in its opinion, the $23.00 per Share cash consideration to be received in the Offer and the Merger by the holders of Shares was fair, from a financial point of view, to such holders (other than Parent and its affiliates). Siemens and Parent were advised that after full discussion of the matters considered by the Company's Board at such meeting, the Company's Board unanimously approved the proposed transaction and the Merger Agreement, declared the Merger Agreement advisable, authorized the executive officers of the Company to negotiate any final changes necessary to the Merger Agreement and related ancillary documents on behalf of the Company and determined to recommend to the Company's stockholders that they accept the Offer, tender their Shares in the Offer and, if required under the DGCL or the Company's Certificate of Incorporation or Bylaws, vote to adopt the Merger Agreement. On the evening of September 26, 2000, the Company, Parent and Purchaser executed the Merger Agreement. The Company and Siemens issued separate press releases announcing the transaction before the opening of trading on the New York Stock Exchange on September 27, 2000. On October 5, 2000, Purchaser commenced the Offer. 11.Purpose of the Offer; Plans for the Company; the Merger. Purpose. The purpose of the Offer and the Merger is to enable Siemens AG indirectly to acquire control of, and the entire equity interest in, the Company. The Offer is being made pursuant to the Merger Agreement and is intended to increase the likelihood that the Merger will be effected. The purpose of the Merger is to acquire all of the outstanding Shares not purchased pursuant to the Offer. The Company will, as of the effective time of the Merger, be a direct wholly owned subsidiary of Parent and an indirect wholly owned subsidiary of Siemens AG. Plans for the Company. Except as disclosed in this Offer to Purchase, none of Siemens AG, Parent or Purchaser has any present plans or proposals that would result in an extraordinary corporate transaction, such as 17 a merger, reorganization, liquidation, or sale or transfer of a material amount of assets, involving the Company or any of its subsidiaries, or any material changes in the Company's capitalization, corporate structure, business or composition of its management or the Company's Board of Directors. Parent and Siemens AG will continue to evaluate and review the Company and its business, assets, corporate structure, capitalization, operations, properties, policies, management and personnel with a view towards determining how optimally to realize any potential benefits which arise from the rationalization of the operations of the Company with those of other business units and subsidiaries of Siemens AG and Parent. Such evaluation and review is ongoing and is not expected to be completed until after the consummation of the Offer and the Merger. If, as and to the extent that Parent and Siemens AG acquire control of the Company, Parent and Siemens AG will complete such evaluation and review of the Company and will determine what, if any, changes would be desirable in light of the circumstances and the strategic business portfolio which then exist. Such changes could include, among other things, restructuring the Company through changes in the Company's business, corporate structure, Certificate of Incorporation, Bylaws, capitalization or management or could involve consolidating and streamlining certain operations and reorganizing other businesses and operations. Effective upon the acceptance for payment of and payment for Shares by Purchaser or any of its affiliates pursuant to the Offer, by the terms of the Merger Agreement, Parent shall be entitled to designate such number of directors of the Company's Board of Directors as determined by Parent, rounded up to the next whole number, for election or appointment to the Board of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors of the Company (giving effect to the increase in the size of such Board pursuant to the Merger Agreement) and (ii) the percentage that the number of Shares beneficially owned by Purchaser and Parent (including Shares so accepted for payment and purchased) bears to the number of Shares then outstanding. In furtherance thereof, concurrently with such acceptance for payment and payment for such Shares the Company shall, upon request of Parent or Purchaser and in compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, promptly take all action necessary to increase the size of its Board of Directors by such number as is necessary to enable such designees of Parent and Purchaser to be so elected or appointed to the Company's Board of Directors, and, subject to applicable law, the Company shall cause such designees of Parent and Purchaser to be so elected or appointed. Purchaser or an affiliate of Purchaser may, following the consummation or termination of the Offer, seek to acquire additional Shares through open market purchases, privately negotiated transactions, a tender offer or exchange offer or otherwise, upon such terms and at such prices as it shall determine, which may be more or less than the price paid in the Offer. The Company's Board of Directors has approved the Merger Agreement and Purchaser's acquisition of the Shares pursuant to the Offer and, therefore, Section 203 of the DGCL is inapplicable. The Merger Agreement. The following is a summary of certain provisions 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 filed with the SEC as an exhibit to the Tender Offer Statement on Schedule TO filed by Siemens AG, Parent and Purchaser (the "Schedule TO") and is incorporated in this Offer to Purchase by reference. Capitalized terms not otherwise defined below shall have the meanings set forth in the Merger Agreement. The Schedule TO which includes a copy of the Merger Agreement may be examined, and copies obtained, as set forth in Section 8 of this Offer to Purchase. The Offer. The Merger Agreement provides that Parent will cause Purchaser to commence the Offer and that upon the terms and subject to prior satisfaction or waiver (to the extent permitted to be waived) of the conditions of the Offer, promptly after expiration of the Offer, Parent will cause Purchaser to accept for payment, and to pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Purchaser is permitted to accept and pay for under applicable law. The Merger Agreement provides that Purchaser has the right to modify and make certain changes to the terms and conditions of the Offer as described above in Section 1 of this Offer to Purchase. 18 If Purchaser acquires 90% or more of the outstanding Shares pursuant to the Offer, it will have the votes necessary under Delaware law to approve the Merger without a meeting of the Company's stockholders. Under the DGCL, if Purchaser owns at least 90% of the outstanding Shares, the Merger may be effected without the vote of, or notice to, the Company's stockholders. Therefore, if at least approximately 28,749,849 Shares (or such greater number as may be necessary if options are exercised) are acquired pursuant to the Offer or otherwise, Purchaser will be able to and intends to effect the Merger without a meeting of holders of the Shares. The Merger Agreement provides that, as soon as practicable after expiration of the Offer, receipt of any required approval by the Company's stockholders of the Merger Agreement and the satisfaction or waiver of certain other conditions, Purchaser will be merged into the Company. At the Effective Time, each then outstanding Share not owned by Parent or any subsidiary of Parent or held in treasury by the Company or any subsidiary of the Company (other than Shares held by stockholders of the Company who properly exercise dissenters' rights under the applicable provisions of the DGCL) will be converted into the right to receive $23.00 in cash or any higher price which may be paid for the Shares pursuant to the Offer, without interest (the "Merger Consideration"). Vote Required to Approve Merger. The DGCL requires that the adoption of any plan of merger or consolidation of the Company must be approved by the holders of a majority of the Company's outstanding Shares if the "short form" merger procedure described above is not available. In such case, under the DGCL, the affirmative vote of holders of a majority of the outstanding Shares (including any Shares owned by Purchaser) is required to approve the Merger and to adopt the Merger Agreement. If Purchaser acquires, through the Offer or otherwise, voting power with respect to at least a majority of the outstanding Shares (which would be the case if the Minimum Condition were satisfied and Purchaser were to accept for payment, and pay for, Shares tendered pursuant to the Offer), it would have sufficient voting power to effect the Merger without the vote of any other stockholder of the Company. Conditions to the Merger. The respective obligations of each party to effect the Merger are subject to the satisfaction or waiver, where permissible, at or prior to the Effective Time, of each of the following conditions: . if required by the DGCL, the Merger Agreement shall have been duly adopted by the requisite affirmative vote of the stockholders of the Company in accordance with applicable law and the Certificate of Incorporation and Bylaws of the Company; . no statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction shall have been enacted, entered, promulgated, issued or enforced by any court or other Governmental Authority which is in effect and has the effect of prohibiting, restraining or enjoining the consummation of the Merger except to the extent the prohibition, restraint or injunction (i) arises under any antitrust, competition or similar laws, rules or regulations of a jurisdiction outside of the United States or Germany or (ii) (A) arises under other laws, rules or regulations of a jurisdiction outside of the United States or Germany, (B) relates to or arises out of the failure to obtain or make any consent, registration, approval, permit, authorization or notice and (C) would not reasonably be expected to result in (1) a Company Material Adverse Effect; (2) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (3) any other material non-financial liability or disability (x) of the Company or its material subsidiaries; (y) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (z) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (4) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation); and . Purchaser shall have accepted for payment and paid for Shares pursuant to the Offer, provided that Parent and Purchaser may not assert this condition if the failure to accept such Shares for payment was in breach of the Merger Agreement or related to a breach of the Merger Agreement by Parent or Purchaser. Termination of the Merger Agreement. The Merger Agreement may be terminated at any time before the Effective Time, whether before or after approval of the Merger Agreement and the Merger by the stockholders of the Company (if required by applicable law): . by mutual written consent, duly authorized by the Boards of Directors of Parent and the Company; 19 . by either the Company or Parent if: . any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction of or by any court or other Governmental Authority of competent jurisdiction which makes the consummation of the Merger illegal shall be in effect and shall have become final and nonapppealable except to the extent such illegality (A) arises under any antitrust, competition or similar laws, rules or regulations of a jurisdiction outside of the United States or Germany, or (B) arises under other laws, rules or regulations of a jurisdiction outside of the United States or Germany, and (in the case of this clause (B) only) either (1) would not reasonably be expected to result (in the case of a termination by Parent) in (w) a Company Material Adverse Effect; (x) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (y) any other material non-financial liability or disability (I) of the Company or its material subsidiaries; (II) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (III) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (z) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Company following the Merger) or (2) would not reasonably be expected to result (in the case of a termination by the Company) in any material liability, exposure or disability or any criminal liability of or to any officer or director of the Company or any of its subsidiaries; . the Offer (as extended and re-extended) shall have expired without the acceptance for payment of Shares; or . the purchase of the Shares pursuant to the Offer (as extended and re- extended) shall not have occurred on or prior to the close of business on December 31, 2000 (the "Outside Date") (provided that if on the Outside Date, the conditions set forth in either clause (ii) or clause (iii) of the first paragraph of Annex A to the Merger Agreement, or any other condition relating to antitrust or competition law clearance with respect to the Offer or the Merger, has not been satisfied, then the Outside Date may be extended by either the Company or Parent until March 31, 2001 (the "Extended Outside Date"); unless, in the case of any of the clauses relating to this termination right (as described in this and the two preceding bullet points), such event has been caused by a breach of the Merger Agreement by the party seeking such termination; . by Parent (the "Parent Competing Offer Termination Right"), if before the purchase of Shares pursuant to the Offer, the Board of Directors of the Company or any committee thereof shall: . have recommended an Acquisition Proposal (as defined under "Acquisition Proposal" below) or failed to publicly announce its recommendation against an Acquisition Proposal within five business days after the first public announcement of the Acquisition Proposal; . have withdrawn, modified in a manner adverse to Parent or amended in a manner adverse to Parent its approval or recommendation of the Offer, the Merger Agreement or the Merger or failed to reaffirm its approval or recommendation of the Offer or the Merger or the adoption of the Merger Agreement upon Parent's reasonable written request; . have executed a letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement providing for consummation of an Acquisition Proposal with a third party; or . have resolved to do any of the foregoing; . by Parent (the "Parent Breach Termination Right"), if before the purchase of Shares pursuant to the Offer: . any of the Company's representations and warranties contained in the Merger Agreement shall be inaccurate as of the date of the Merger Agreement, or (except for the representation of the Company 20 contained in Section 5.7(b) of the Merger Agreement) shall have become inaccurate as of a date subsequent to the date of the Merger Agreement (as if made on such subsequent date) such that the condition set forth in clause (c)(i) of Annex A to the Merger Agreement would not be satisfied; or . any of the Company's covenants contained in the Merger Agreement shall have been breached such that the condition set forth in clause (c)(i) of Annex A to the Merger Agreement would not be satisfied if, in the case of this or the preceding clause, the Company shall have failed to cure such breach within 30 days after written notice of the breach; provided, however, that if an inaccuracy in the Company's representations and warranties or a breach of a covenant by the Company is not curable by the Company prior to the Outside Date or the Extended Outside Date, whichever is applicable, no such 30-day notice shall be required; . by the Company prior to the acceptance for purchase of shares pursuant to the Offer if: . there shall have been a breach in any material respect of any representation or warranty in the Merger Agreement of Parent or Purchaser; . Parent or Purchaser shall have failed to commence the Offer within the time required under the Merger Agreement; or . Parent or Purchaser shall not have performed or complied with any other material covenant or material agreement contained in the Merger Agreement, which breach, in the case of the first two clauses above, shall not have been cured prior to 20 business days following notice of such breach to Parent and Purchaser by the Company; or . by the Company (the "Company Competing Offer Termination Right") at any time after the Initial Expiration Date and prior to the acceptance for purchase of Shares pursuant to the Offer, if: . at any time after the date of the Merger Agreement, a third party shall have disclosed, announced, submitted or made a Superior Proposal (as defined under "Acquisition Proposal" below), and . the Company's Board of Directors has determined in good faith after consultation with outside counsel that termination of the Merger Agreement by the Company is necessary in order for the Company's Board of Directors to comply with its fiduciary duties; provided, however, that the Company must give Parent two business days prior written notice of the Company's intention to terminate the Merger Agreement prior to exercising this termination right. Effect of Termination. In the event of termination of the Merger Agreement by either Parent or the Company pursuant to any of the provisions described in the immediately preceding section, the Merger Agreement will become void and there will be no liability or further obligation on the part of the Company, Parent, Purchaser or their respective officers or directors, except for obligations enumerated below under "Fees and Expenses" and provisions of the Merger Agreement with respect to confidentiality of non-public data regarding the Company and the allocation of liability for payment of expenses and fees, all of which would survive any termination of the Merger Agreement. Fees and Expenses. The Company will be required to pay Parent a termination payment of $27,500,000 if the Merger Agreement is terminated: . by Parent as a result of exercising its Parent Competing Offer Termination Right; . by the Company as a result of exercising its Company Competing Offer Termination Right; or . by (i) either Parent or the Company as a result of the Offer expiring without any Shares being purchased by Purchaser; (ii) either Parent or the Company if the purchase of Shares pursuant to the Offer shall not have occurred by the Outside Date or the Extended Outside Date, as applicable; or (iii) by Parent as a result of exercising its Parent Breach Termination Right, if in addition, . if the termination was a result of subclause (i) or (ii) of the preceding bullet point, between the date of the Merger Agreement and the termination of the Merger Agreement, a third party (other than Parent or an affiliate of Parent) shall have publicly announced an Acquisition Proposal that is pending on the date of termination of the Merger Agreement, 21 . if the termination was a result of subclause (iii) of the preceding bullet point, between the date of the Merger Agreement and the date of termination, an Acquisition Proposal was received by the Company (whether or not publicly announced) and the Acquisition Proposal was not withdrawn, by bona fide action of the third party who made the Acquisition Proposal; and, in any case, . within 270 days after the termination of the Merger Agreement, either (a) the Company enters into a definitive acquisition agreement providing for an Acquisition Proposal or (b) an Acquisition Proposal is consummated (provided that for purposes of this provision of the Merger Agreement, all references in the definition of "Acquisition Proposal" to "20%" and "80%" shall be deemed to be "50%"). Acquisition Proposals. The Company has agreed that none of the officers or directors of the Company or any of the Company's Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause the Company's and the Company's subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of the Company's subsidiaries) not to, directly or indirectly: . initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer (including without limitation an offer to stockholders of the Company) for a transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of the Company's subsidiaries that, if consummated would result in the stockholders of the Company immediately prior to the consummation of such transaction beneficially owning less than 80% of the voting power of the Company immediately after the consummation of such transaction, or any purchase or sale of 50% or more of the consolidated assets (including without limitation stock of the Company's subsidiaries) of the Company and the Company's subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, the equity securities of the Company that, if consummated, would result in any person (or the stockholders of such person) beneficially owning securities representing 20% or more of the total voting power of the Company (or of the surviving parent entity in such transaction) or any of the Company's material subsidiaries (any such proposal, offer or transaction, other than a proposal or offer made by Parent or an affiliate thereof, being referred to as an "Acquisition Proposal"); . have any discussion with or provide any confidential information or data to any person relating to an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; . approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; or . approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any of the foregoing related to any Acquisition Proposal. Notwithstanding the foregoing restrictions, the Company or its Board of Directors is permitted at any time prior to the time of the stockholders' meeting to adopt the Merger Agreement: . to the extent applicable, (a) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (b) to make disclosure to the Company's stockholders that, in the good faith judgment of the Company's Board of Directors after consultation with outside counsel, is required under applicable law; . to withdraw or change the recommendation of the Company's Board of Directors in respect of the Offer, the Merger or the Merger Agreement or to approve or recommend or to propose publicly to approve or recommend any Acquisition Proposal; . to engage in any discussions or negotiations with, or provide any information to, any person in response to an unsolicited bona fide written Acquisition Proposal by any such person; or . to enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement, with respect to a Superior Proposal (as defined below), if and only to the extent that, in any such case referred to in this or the preceding two clauses, 22 . (x) in the case of the second clause above, it has received an unsolicited bona fide written Acquisition Proposal from a third party and the Company's Board of Directors concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal and (y) in the case of the third clause above, the Company's Board of Directors concludes in good faith that such Acquisition Proposal reasonably could be expected (without any change in the amount or type of consideration offered) to constitute a Superior Proposal, . in the case of the second, third and fourth clauses above, the Board of Directors, after consultation with outside counsel, determines in good faith that taking such action is necessary in order for the Board of Directors to comply with its fiduciary duties under applicable law, . prior to the Company's Board of Directors taking or authorizing any action described in the second or fourth clauses above, Parent shall have been afforded the right for at least three business days to amend the terms of the Offer in response to such Acquisition Proposal, . prior to providing any information or data to any person, the Board of Directors receives from such person an executed confidentiality agreement having provisions that are customary in such agreements, as advised by counsel, and no less restrictive of such person than the confidentiality agreement entered into between Parent and the Company, and . prior to providing any information or data to any person or entering into discussions or negotiations with any person, the Company notifies Parent promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any inquiries, proposals or offers. For purposes of the Merger Agreement, the term "Superior Proposal" means a bona fide written proposal made by a person other than Parent or an affiliate of Parent which the Company's Board of Directors concludes in good faith (following receipt of the advice of its financial advisors and after consultation with outside legal counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (i) would, if consummated, result in a transaction that is more favorable to the Company's stockholders (in their capacities as stockholders), from a financial point of view, than the transactions contemplated by the Merger Agreement and (ii) is probable of completion. The Company also agreed that it will, and will cause its officers, directors and representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of the Merger Agreement with any parties conduct prior to the date of the Merger Agreement with respect to any Acquisition Proposal. In addition, the Company shall promptly request each person that within the past 13 months has executed a confidentiality agreement in connection with its consideration of a possible Acquisition Proposal to return (or, if required under the provisions of the confidentiality agreement, destroy) all confidential information previously furnished to such person. The Company agreed to promptly inform its directors, officers, key employees, agents and representatives of its obligations undertaken in this section of the Merger Agreement and agreed that it will not to submit to the vote of its stockholders any Acquisition Proposal other than the Merger. In the Merger Agreement, the Company agreed to (i) notify Parent promptly (and in any event within one business day) after receipt of any Acquisition Proposal (or any indication that any person is considering making an Acquisition Proposal) or any request for non-public information relating to the Company or any of its subsidiaries or for access to the properties, books or records of the Company or any of its subsidiaries by any person that may be considering making, or has made, an Acquisition Proposal, (ii) notify Parent promptly of any material change to any such Acquisition Proposal, indication or request and (iii) upon reasonable request by Parent, provide Parent with all material information about any such Acquisition Proposal, indication or request. Covenants and Representations and Warranties. The Merger Agreement contains certain other restrictions as to the conduct of business by the Company pending the Merger, including covenants restricting the Company's 23 ability to take actions which would change or affect the capital structure of the Company, as well as representations and warranties of each of the parties customary in transactions of this kind. Amendment of the Merger Agreement. The Merger Agreement may not be amended except by action taken by the parties' respective Boards of Directors or duly authorized committees thereof and then only by an instrument in writing signed on behalf of each of the parties to the Merger Agreement and in compliance with applicable law and the Merger Agreement. Subject to the terms of the Merger Agreement and applicable law, such amendment may take place at any time prior to the Closing Date and whether before or after the Company Stockholders' Approval is obtained; provided, however, that after the Company Stockholders' Approval is obtained, no amendment may be made which would reduce the amount or change the kind of consideration to be received by the holders of Shares upon consummation of the Merger or alter or change any of the terms and conditions of the Merger Agreement if such alteration or change would adversely effect the holders of any class or series of securities of the Company. Treatment of Options and Restricted Shares. The Merger Agreement provides that, as of the Effective Time, each outstanding option to purchase Shares granted under any stock option agreement, compensation plan or arrangement (each, an "Option") will automatically be cancelled, whether or not then vested or exercisable, and the holder of such Option will thereafter be entitled to receive an amount in cash equal to the product obtained by multiplying (1) the difference between the Common Stock Price and the per share exercise price of such Option, by (2) the number of Shares covered by such Option. The Surviving Corporation will deliver such payment to the holder of such Option on the date on which such option would have vested, subject to the conditions for vesting in the applicable award for such option; provided, however, that payment will be made on each outstanding and fully vested option at the Effective Time. Pursuant to the conversion of Options, based upon the Options outstanding at September 22, 2000 and a $23.00 Common Stock Price, a total of approximately $69.2 million would be paid to optionees, including approximately $26.8 million to executive officers and approximately $0.9 million to non-employee directors of the Company. Indemnification of Officers and Directors. Parent agreed in the Merger Agreement that all rights to indemnification now existing in favor of any current or former director or officer of the Company as provided in the Company's Certificate of Incorporation or Bylaws or in a written agreement between any such person and the Company in effect on September 26, 2000 shall survive the Merger and shall continue in full force and effect until the expiration of all applicable statutes of limitation. Parent also agreed in the Merger Agreement to (or to cause the Surviving Corporation to) indemnify all current and former directors and officers of the Company to the fullest extent the Company would be permitted by Delaware law to indemnify them with respect to all acts and omissions arising out of such individuals' service as officers or directors of the Company or any of its subsidiaries or as trustees, fiduciaries or administrators of any plan for the benefit of employees occurring prior to the Effective Time. Without limitation of the foregoing, in the event any such person is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including, without limitation, the transactions contemplated by the Merger Agreement, occurring prior to, and including, the Effective Time, Parent will (or will cause the Surviving Corporation to) pay such person's reasonable legal and other expenses of counsel selected by such person and reasonably acceptable to Parent (including the cost of any investigation, preparation and settlement) incurred in connection therewith promptly after statements therefor are received by Parent; provided, however, that neither Parent nor the Surviving Corporation shall, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified persons (it being understood, however, that if any indemnified person or counsel for any indemnified person determines in good faith that there is, under applicable standards of professional conduct, a conflict on any significant issue between two or more indemnified persons, then each such indemnified person may engage separate counsel at the expense of Parent and the Surviving Corporation). Parent is entitled to participate in the defense of any such action or proceeding, and counsel selected by the indemnified person shall, to the extent consistent with their professional responsibilities, 24 cooperate with Parent and any counsel designated by Parent (it being understood that no indemnified person shall be liable for any settlement effected without his express written consent). Parent shall pay all reasonable fees and expenses, including attorneys' fees, that may be incurred by any indemnified person in enforcing the indemnity and other obligations provided for in the Merger Agreement. In addition, Parent agreed in the Merger Agreement that the Company shall maintain and, from and after the Effective Time, the Surviving Corporation shall cause to be maintained, in effect for not less than six years from the Effective Time the current policies of directors' and officers' liability insurance maintained by the Company; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to such persons; and provided, further, that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time; and provided, further, that the Surviving Corporation shall not be required to pay an annual premium in excess of 200% of the last annual premium paid by the Company prior to the date of the Merger Agreement; and if the Surviving Corporation is unable to obtain the insurance required by the Merger Agreement, it shall obtain as much comparable insurance as possible for an annual premium equal to such maximum amount. Treatment of Employee Benefits. Following the Effective Time, Parent shall honor, and cause the Surviving Corporation to honor, each Company Plan and the related funding arrangements of such Company Plan in accordance with its terms and shall interpret such Company Plan in accordance with the past practice of the Company. Without limiting the generality of the foregoing, Parent shall honor, and cause the Surviving Corporation to honor, all vacation, personal and sick days accrued by employees of the Company and its subsidiaries under any plans, policies, programs and arrangements of the Company and its ERISA Affiliates immediately prior to the Effective Time. From the Effective Time until December 31, 2001, Parent shall provide, and cause the Surviving Corporation to provide, employee benefits under employee benefit plans to the employees and former employees of the Company and its subsidiaries that are in the aggregate no less favorable than those provided to such persons pursuant to Company Plans on the date of the Merger Agreement (excluding equity and equity-based compensation); provided, however, that the provisions of the Merger Agreement will not prohibit Parent or the Surviving Corporation from requiring normal and customary employee contributions with respect to medical and other similar employee benefit plans. Nothing in the Merger Agreement shall prohibit any changes to any Company Plan that are (i) required by law (including, without limitation, any applicable qualification requirements of Section 401(a) of the Code); (ii) necessary as a technical matter to reflect the transactions contemplated by the Merger Agreement; or (iii) required for the Surviving Corporation to provide for or permit investment in its securities or Parent's securities. Furthermore, nothing in the Merger Agreement shall require Parent to continue any particular Company Plan or prevent the amendment or termination thereof (subject to the maintenance, in the aggregate, of the benefits as provided in the Merger Agreement and to the obligation to provide benefits as provided in the Merger Agreement). With respect to any employee benefit plans in which any employees of the Company or its subsidiaries first become eligible to participate, on or after the Effective Time, and in which the Company employees did not participate prior to the Effective Time, Parent shall: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the employees of the Company and its subsidiaries under any such new plans in which such employees may be eligible to participate after the Effective Time, except to the extent such pre- existing conditions, exclusions or waiting periods would apply under the analogous Company Plan; (ii) provide each employee of the Company and its subsidiaries with credit for any co-payments and deductibles paid prior to the Effective Time (to the same extent such credit was given under the analogous Company Plan prior to the Effective Time) in satisfying any applicable deductible or out-of-pocket requirements under any such new plan in which such employees may be eligible to participate after the Effective Time; (iii) recognize all service of such employees for all purposes (including, without limitation, purposes of eligibility to participate, vesting, and, except with respect to grandfathered provisions contained in Parent's health plans applicable to employees hired prior to September 30, 1991, entitlement to benefits, and, except with respect to defined benefit pension plans, benefit accrual) in any such new plan in which such 25 employees may be eligible to participate after the Effective Time, and (iv) with respect to flexible spending accounts, provide each employee of the Company and its subsidiaries with a credit for any salary reduction contributions made thereto and a debit for any expenses incurred thereunder with respect to the plan year in which the Effective Time occurs; provided, that the foregoing shall not apply to the extent it would result in duplication of benefits. Composition of the Board of Directors. Effective upon the acceptance for payment of and payment for Shares by Purchaser or any of its affiliates pursuant to the Offer, Parent shall be entitled to designate such number of directors of the Board of Directors of the Company as determined by Parent, rounded up to the next whole number, for election or appointment to the Board of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors of the Company (giving effect to the increase in the size of such Board pursuant to this provision) and (ii) the percentage that the number of Shares beneficially owned by Purchaser and Parent (including Shares so accepted for payment and purchased) bears to the number of Shares then outstanding. Concurrently with such acceptance for payment and payment for such Shares the Company shall, upon request of Parent or Purchaser and in compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, promptly take all action necessary to increase the size of its Board of Directors by such number as is necessary to enable such designees of Parent and Purchaser to be so elected or appointed to the Company's Board of Directors, and, subject to applicable law, the Company shall cause such designees of Parent and Purchaser to be so elected or appointed. At such time, the Company shall, if requested by Parent or Purchaser and subject to applicable law, cause persons designated by Parent and Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors; (ii) each board of directors (or similar body) of each subsidiary of the Company; and (iii) each committee (or similar body) of each such board. From and after the Effective Time, the directors of the Surviving Corporation shall be those individuals appointed by Parent in its capacity as sole stockholder of the Surviving Corporation and such directors shall serve in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal. Appraisal Rights. Holders of Shares do not have appraisal rights as a result of the Offer. However, if the Merger is consummated, each holder of Shares who has neither voted in favor of the Merger nor consented thereto in writing will be entitled to an appraisal by the Delaware Court of Chancery of the fair value of his or her Shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with a fair rate of interest, if any, to be paid. In determining such fair value, the Court may consider all relevant factors. The value so determined could be more or less than the consideration to be paid in the Offer and the Merger. Any judicial determination of the fair value could be based upon considerations other than or in addition to the market value of the shares of Company Common Stock, including, among other things, asset values and earning capacity. If any holder of Shares who demands appraisal under Section 262 of the DGCL fails to perfect, or effectively withdraws or loses his right to appraisal as provided in the DGCL, the Shares of such stockholder will be converted into the Merger Consideration in accordance with the Merger Agreement. A stockholder may withdraw his demand for appraisal by delivery to Parent of a written withdrawal of his or her demand for appraisal and acceptance of the Merger. The foregoing discussion is not a complete statement of law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262 of the DGCL. Failure to follow the steps required by Section 262 of the DGCL for perfecting appraisal rights may result in the loss of such rights. Rule 13e-3. The Merger would have to comply with any applicable federal law operative at the time of its consummation. Rule 13e-3 under the Exchange Act is applicable to certain "going private" transactions. 26 Purchaser does not believe that Rule 13e-3 will be applicable to the Merger unless the Merger is consummated more than one year after the termination of the Offer. If applicable, Rule 13e-3 would require, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the Merger and the consideration offered to minority stockholders be filed with the SEC and disclosed to minority stockholders prior to consummation of the Merger. The Rights presently are transferable only with the Share Certificates. The surrender for transfer of Share Certificates evidencing any Shares will also constitute the transfer of the Rights associated with the Shares represented by such Share Certificates. Pursuant to the terms of the Merger Agreement, the Company has taken all necessary action so that the Offer will not result in the grant of any Rights or enable or require any Rights to be exercised, distributed or triggered. 12.Source and Amount of Funds. Purchaser estimates that the total amount of funds required to purchase all of the outstanding Shares pursuant to the Offer and the Merger and to pay related fees and expenses will be approximately $825 million. Siemens AG and its affiliates will finance the Offer and the Merger with internally generated funds. 13.Certain Conditions of the Offer. Notwithstanding any provision of the Offer or the Merger Agreement, in addition to (and except as otherwise set forth in the Merger Agreement, not in limitation of) Purchaser's rights pursuant to the Merger Agreement to extend and amend the Offer in accordance with the Merger Agreement, and subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act) relating to Purchaser's obligation to pay for or return tendered Shares after termination of the Offer, Purchaser shall not be required to accept for payment or pay for and may delay the acceptance for payment of or, subject to Rule 14e-1(c) of the Exchange Act, the payment for, any tendered Shares not theretofore accepted for payment or paid for, and Purchaser may amend the Offer (subject to the terms of the Merger Agreement) if (i) the Minimum Condition is not met; (ii) any applicable waiting period under the HSR Act shall not have expired or been terminated; (iii) the approval period with respect to the German Federal Cartel Authority shall not have been terminated; or (iv) at any time on or after the date of the Merger Agreement and prior to the time of acceptance of such Shares for payment pursuant to the Offer or the payment therefor, any of the following conditions has occurred and continues to exist through the time of acceptance for payment or payment: . there shall be pending any suit, action, or proceeding that is reasonably likely to succeed, brought by a Governmental Authority against Parent or any affiliate of Parent or the Company or any affiliate of the Company (other than any suit, action or proceeding relating to antitrust, competition or other similar laws, rules or regulations of a jurisdiction outside of the United States or Germany): . challenging the acquisition by Parent or Purchaser of the Shares, seeking to make illegal, materially delay, make materially more costly or otherwise directly or indirectly restrain or prohibit the making or consummation of the Offer and the Merger or the performance of any of the other transactions contemplated by the Merger Agreement or seeking to obtain from the Company, Parent or Purchaser any damages or penalties, that in any case referred to in this clause for which the standard in the preamble to this condition is met is reasonably likely to result in consequences that are materially adverse to Parent, the Company or their respective material affiliates; . seeking to prohibit or materially limit the ownership or operation by the Company, Parent or any of their respective subsidiaries or affiliates of any of the businesses or assets of the Company, Parent or any of their respective subsidiaries or affiliates, or to compel the Company, Parent or any of their respective subsidiaries or affiliates to dispose of or hold separate all or any material portion of the businesses or assets of the Company or Parent, as a result of the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement; . 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 the Shares accepted for payment by it on all matters properly presented to the stockholders of the Company; 27 . seeking to prohibit Parent or any of its subsidiaries or affiliates from effectively controlling in any material respect the business or operations of the Company or its subsidiaries; . requiring divestiture by Purchaser or any of its affiliates of any Shares; or . which otherwise is reasonably likely to have a Company Material Adverse Effect; . there shall be any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction (including with respect to competition or antitrust matters) enacted, entered, promulgated, issued or enforced, or any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction which has been proposed by the relevant legislative or regulatory body and is reasonably likely to be enacted, entered, promulgated, issued or enforced with respect to or deemed applicable to: . Parent, the Company or any of their respective subsidiaries or affiliates or . the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement, by any court or other Governmental Authority, other than applicable waiting periods under the HSR Act as specified in the first paragraph of this Section 13 of the Offer to Purchase or the approval period applicable to the German Federal Cartel Authority and other than any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction of any court or other Governmental Authority relating to antitrust, competition or other similar laws, rules or regulations of a jurisdiction outside of the United States or Germany, in any case, that have resulted or would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in the proceeding condition; . the representations and warranties of the Company contained in the Merger Agreement shall not be true and correct (without giving effect in any such representation or warranty (other than in Section 5.7(b) of the Merger Agreement)) to any Company Material Adverse Effect standard, qualification or exception contained therein but after giving effect to any other materiality standard, qualification or exception contained therein) at the date of the Merger Agreement and as of the consummation of the Offer with the same effect as if made at and as of the consummation of the Offer (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that for purposes of this clause, none of the following, to the extent arising after the date of the Merger Agreement, shall be deemed to constitute a Company Material Adverse Effect and none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur: (A) any effect resulting from the announcement or pendency of the Offer or the Merger (including, without limitation, any cancellations of or delays in customer orders or shipments, any disruption in supplier, distributor, partner or similar relationships or any loss of employees); (B) any effect resulting from compliance with the terms of, or the taking of any action required by, the Merger Agreement; or (C) any effect resulting from the matters disclosed pursuant to Section 5.7(b) of the Merger Agreement; . the Company shall have failed to perform or comply in all material respects with its covenants and obligations contained in the Merger Agreement, which failure to perform has not been cured within ten business days after the giving of written notice to the Company; . there shall have occurred since the date of the Merger Agreement any events or changes which, individually or in the aggregate, constitute or would reasonably be expected to have a Company Material Adverse Effect; provided, however, that for purposes of this condition only, none of the following, to the extent arising after the date of the Merger Agreement, shall be deemed to constitute a Company Material Adverse Effect, and none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur: (i) any effect resulting from any material fluctuations in currency prices; (ii) any effect relating to conditions generally affecting companies operating in the ultrasound industry, in the same general manner and to the same general extent; (iii) any effect resulting from the announcement or pendency of the Offer or the Merger (including, without limitation, any 28 cancellations of or delays in customer orders or product shipments, any disruption in supplier, distributor, partner or similar relationships or any loss of employees); (iv) any effect resulting from compliance with the terms of, or the taking of any action required by, the Merger Agreement; or (v) any effect resulting from the matters disclosed pursuant to Section 5.7(b) of the Merger Agreement. In addition, any failure by the Company following the date of the Merger Agreement to meet internal projections or forecasts or published revenue or earnings predictions, in and of itself, shall not be deemed to constitute a Company Material Adverse Effect (it being understood that such failure may nonetheless be evidence of other events that have resulted in the occurrence of a Company Material Adverse Effect); . the Board of Directors of the Company or any committee thereof shall: . have recommended an Acquisition Proposal or failed to publicly announce its recommendation against an Acquisition Proposal within five business days after the first public announcement of the Acquisition Proposal; . have withdrawn, modified in a manner adverse to Parent or amended in a manner adverse to Parent its approval or recommendation of the Offer, the Merger Agreement or the Merger or failed to reaffirm its approval or recommendation of the Offer or the Merger or the adoption of the Merger Agreement upon Parent's reasonable written request; . have executed a letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement providing for consummation of an Acquisition Proposal with a third party; or . have resolved to do any of the foregoing; . the Merger Agreement shall have been terminated in accordance with its terms, or any event shall have occurred which gives Parent or Purchaser the right to terminate the Merger Agreement or not consummate the Merger; . there shall have occurred and be continuing: . any general suspension of trading in, or limitation in prices for securities on any national securities exchange or in the over-the- counter market (other than as a result of market circuit-breakers or other similar procedures); . the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory); . a commencement of war or armed hostilities or other national or international calamity directly or indirectly involving the United States, which has a significant adverse effect on the functioning of financial markets in the United States; or . in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof; . there shall not have been obtained any third party non-governmental consent that is required to be obtained in connection with the Offer or the Merger that (i) is not disclosed pursuant to Section 5.4(b) of the Merger Agreement and (ii) does not arise solely by reason of a contract or other agreement entered into after the date of the Merger Agreement with the express written consent of Parent, unless the failure to obtain such consent, individually or in the aggregate with other such failures, would not reasonably be expected to result in (A) a Company Material Adverse Effect; (B) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (C) any other material non-financial liability or disability (1) of the Company or its material subsidiaries; (2) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (3) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such 29 liability or disability is material to Parent and its affiliates taken as a whole; or (D) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation); . any consent, registration, approval, permit, authorization or notice required to be obtained or made by the Company, Parent or Purchaser or any of their respective affiliates from or with any Governmental Authority (other than with respect to any U.S. or foreign antitrust, competition or other similar law, rule or regulation) in connection with the execution, delivery and performance of the Agreement, the making or consummation of the Offer or the consummation of the Merger shall not have been obtained or made, unless the failure to obtain or make any such consent, registration, approval, permit, authorization or notice, individually or in the aggregate, would not reasonably be expected to result in (A) a Company Material Adverse Effect; (B) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (C) any other material non- financial liability or disability (1) of the Company or its material subsidiaries; (2) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (3) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (D) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation); or . it shall have been publicly disclosed that any Person, entity or "group" (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of more than 20% of the then-outstanding Shares, through the acquisition of stock, the formation of a group or otherwise. Subject to the Merger Agreement, the foregoing conditions are solely for the benefit of Parent and Purchaser and may be waived by either Parent or Purchaser, in whole or in part at any time and from time to time, in the sole discretion of Parent and Purchaser. The failure by Parent and Purchaser 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 which may be asserted at any time and from time to time. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver. All Offer Conditions must be satisfied or waived prior to the commencement of any Subsequent Offering Period. 14.Dividends and Distributions. Pursuant to the Merger Agreement, the Company has agreed that during the term of the Merger Agreement the Company may not declare, set aside or pay any dividend on or any other distributions (whether in cash, stock, property or otherwise) with respect to any Shares (except for any dividends paid by a wholly owned direct or indirect subsidiary of the Company to such subsidiary's parent). 15.Certain Legal Matters. General. Except as otherwise disclosed in this Offer to Purchase, based upon an examination of publicly available filings with respect to the Company, Parent and Purchaser are not aware of any licenses or other regulatory permits which appear to be material to the business of the Company and which might be adversely affected by the acquisition of the Shares by Purchaser pursuant to the Offer or of any approval or other action by any governmental, administrative or regulatory agency or authority which would be required for the acquisition or ownership of the Shares by Purchaser pursuant to the Offer. Should any such approval or other action be required, it is currently contemplated that such approval or action would be sought or taken. There can be no assurance that any such approval or action, if needed, would be obtained or, if obtained, that it will be obtained without substantial conditions or that adverse consequences might not result to the Company's or Parent's 30 business or that certain parts of the Company's or Parent's business might not have to be disposed of in the event that such approvals were not obtained or such other actions were not taken, any of which might enable Purchaser to elect to terminate the Offer without the purchase of the Shares thereunder, if the relevant conditions to termination were met. Purchaser's obligation under the Offer to accept for payment and pay for the Shares is subject to certain conditions. See Section 13. United States Antitrust Compliance. Under the HSR Act and the rules that have been promulgated thereunder by the Federal Trade Commission ("FTC"), certain acquisition transactions may not be consummated unless certain information has been furnished to the Antitrust Division of the Department of Justice (the "Antitrust Division") and the FTC and certain waiting period requirements have been satisfied. The acquisition of the Shares by Purchaser is subject to these requirements. See Section 2 of this Offer to Purchase as to the effect of the HSR Act on the timing of Purchaser's obligation to accept Shares for payment. Pursuant to the HSR Act, Parent and its affiliates filed a Notification and Report Form with respect to the acquisition of the Shares pursuant to the Offer and the Merger with the Antitrust Division and the FTC on October 3, 2000. Under the provisions of the HSR Act applicable to the purchase of the Shares pursuant to the Offer, such purchases may not be made until the expiration of a 15-calendar day waiting period following the filing by Parent. Accordingly, the waiting period under the HSR Act will expire at 11:59 p.m., New York City time, on or about October 18, 2000, unless early termination of the waiting period is granted or Parent receives a request for additional information or documentary material prior thereto. Pursuant to the HSR Act, Parent will request early termination of the waiting period applicable to the Offer. There can be no assurances given, however, that the 15-day HSR Act waiting period will be terminated early. If either the FTC or the Antitrust Division were to request additional information or documentary material from Parent, the waiting period would expire at 11:59 p.m., New York City time, on the tenth calendar day after the date of substantial compliance by Parent with such request unless the waiting period is sooner terminated by the FTC or the Antitrust Division. Only one extension of such waiting period pursuant to a request for additional information is authorized by the rules promulgated under the HSR Act, except by agreement or by court order. Any such extension of the waiting period will not give rise to any withdrawal rights not otherwise provided for by applicable law. See Section 4. Parent expects the waiting period under the HSR Act to expire at the end of the 15-day period, if not earlier terminated. The Antitrust Division and the FTC frequently scrutinize the legality under the antitrust laws of transactions such as the proposed acquisition of the Shares by Purchaser pursuant to the Offer. At any time before or after Purchaser's purchase of the Shares, 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 acquisition of the Shares pursuant to the Offer or seeking divestiture of the Shares acquired by Purchaser or the divestiture of substantial assets of Parent, the Company or any of their respective subsidiaries or affiliates. 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 a challenge is made, what the result will be. See Section 13 of this Offer to Purchase for certain conditions to the Offer that could become applicable in the event of such a challenge. German Antitrust Compliance. Under German laws and regulations relating to the regulation of monopolies and competition, certain acquisition transactions may not be consummated in Germany unless certain information has been furnished to the German Federal Cartel Office (the "FCO" or "Bundeskartellamt") and certain waiting period requirements have been satisfied without issuance by the FCO of an order to refrain. The purchase of the Shares by Purchaser pursuant to the Offer and the consummation of the Merger are subject to such requirements. Under such laws, the FCO has one month (unless earlier terminated by the FCO) from the time of filing of such information with the FCO to clear the Offer and the Merger or to advise the parties of its intention to investigate the Offer and the Merger in-depth, in which case the FCO has four months from the date of filing in which to take steps to oppose the Offer and the Merger. According to the German law against restraints of competition, the purchase of the Shares pursuant to the Offer may not be consummated before the end of the one-month period, and, provided that the FCO has informed the parties about the initiation of an in- 31 depth review within such period, before the end of the four-month period or its agreed-upon extension, unless the FCO has given its clearance to the transaction in writing before the end of such periods. In the course of its reviews, the FCO will examine whether the proposed acquisition of the Shares by Purchaser pursuant to the Offer would create a dominant market position or strengthen an already-existing dominant position in Germany. If the FCO makes such a finding, it will act to prohibit the transaction. While Siemens AG, Parent and Purchaser do not believe that there is any basis for the FCO to investigate the Offer and the Merger in-depth, there can be no assurance that the FCO will not investigate or oppose the transactions or that the FCO will not extend the waiting period. Siemens AG filed the information with the FCO on September 29, 2000. Siemens AG and Parent currently expect to obtain the requisite clearance by the FCO prior to the scheduled Expiration Date. In the event that such clearance is not obtained prior to the Expiration Date, the Offer may be extended until March 31, 2001. Other Antitrust and Competition Law Requirements. Parent and Purchaser have been advised that notice filings with respect to the Offer and the Merger may be required in Austria, Italy, Brazil and Argentina, among other countries. Pursuant to the terms of the Merger Agreement, Parent and Purchaser have agreed to assume the risk of obtaining antitrust and competition law clearances in each of these jurisdictions and as a result do not have the right to refuse to purchase Shares pursuant to the Offer or to terminate the Offer or the Merger Agreement if Parent, Purchaser or any of their respective affiliates incur any liability or disability in connection with obtaining antitrust or competition clearances in these jurisdictions. For a description of the conditions to the Offer, see Section 13 of this Offer to Purchase. State Takeover Laws. Section 203 of the DGCL limits the ability of a Delaware corporation to engage in business combinations with "interested stockholders" (defined generally as any beneficial owner of 15% or more of the outstanding voting stock in the corporation) unless, among other things, the corporation's board of directors has given its prior approval to either the business combination or the transaction which resulted in the stockholder becoming an "interested stockholder." The Company's Board of Directors has approved the Merger Agreement and Purchaser's acquisition of the Shares pursuant to the Offer and, therefore, Section 203 of the DGCL is inapplicable to the Offer and the Merger. Based on information supplied by or on behalf of the Company, Purchaser does not believe that any state takeover laws purport to apply to the Offer or the Merger. None of Siemens AG, Parent or Purchaser has currently complied with any state takeover statute or regulation with respect to the transactions contemplated by the Merger Agreement. 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 as a waiver of such right. If it is asserted that any state takeover statute is applicable to the Offer or the Merger and if 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 any Shares tendered pursuant to the Offer, or be delayed in consummating the Offer or the Merger. In such case, Purchaser may not be obliged to accept for payment or pay for any Shares tendered pursuant to the Offer. 16.Fees and Expenses. Deutsche Bank Securities Inc. is acting as Dealer Manager in connection with the Offer and has provided certain financial advisory services to Siemens AG, Parent and Purchaser in connection therewith. Siemens AG has agreed to pay Deutsche Bank AG reasonable and customary compensation for its services and as financial advisor in connection with the Offer (including those of Deutsche Bank Securities Inc. as Dealer Manager). Parent has agreed to reimburse Deutsche Bank Securities Inc. for its reasonable out-of-pocket expenses, including the fees and expenses of its counsel, in connection with the Offer, and has agreed to indemnify Deutsche Bank Securities Inc. against certain liabilities and expenses in connection with the Offer, including liabilities under the federal securities laws. At any time Deutsche Bank Securities Inc. and its affiliates may 32 actively trade the Shares for their own account or for the account of customers and, accordingly, may at any time hold a long or short position in the Shares. Georgeson Shareholder Communications Inc. is acting as Information Agent in connection with the Offer. The Information Agent may contact holders of the Shares by personal interview, mail, telephone, telex, telegraph and other methods of electronic communication and may request brokers, dealers, banks, trust companies and other nominees to forward the Offer materials to beneficial holders. The Information Agent will receive reasonable and customary compensation for its services, be reimbursed for certain reasonable out-of-pocket expenses and be indemnified against certain liabilities and expenses in connection with its services, including certain liabilities under the Federal securities laws. Brokers, dealers, commercial banks and trust companies will be reimbursed by Parent for customary mailing and handling expenses incurred by them in forwarding material to their customers. 17.Miscellaneous. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of the 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. However, Purchaser may, in its sole discretion, take such action as it may deem necessary to make the Offer in any such jurisdiction and extend the Offer to holders of such Shares. None of Siemens AG, Parent or Purchaser is aware of any jurisdiction in which the making of the Offer or the acceptance of the Shares in connection therewith would not be in compliance with the laws of such jurisdiction. Siemens AG, Parent and Purchaser have filed a Schedule TO with the SEC pursuant to Rule l4d-3 of the General Rules and Regulations under the Exchange Act, furnishing certain additional information with respect to the Offer, and may file amendments thereto from time to time. The Schedule TO and any amendments thereto, including exhibits, may be examined and copies may be obtained from the principal office of the SEC in Washington, D.C. and the NYSE, or electronically, in each case in the manner set forth in Section 8. No person has been authorized to give any information or make any representation on behalf of Siemens AG, Parent or Purchaser not contained in this Offer to Purchase or in the Letter of Transmittal and, if given or made, such information or representation must not be relied upon as having been authorized. Sigma Acquisition Corp. October 5, 2000 33 SCHEDULE A INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF SIEMENS AG, PARENT AND PURCHASER 1. Directors and Executive Officers of Siemens AG. The following table sets forth the name and present principal occupation or employment, and material occupations, positions, offices or employment for the past five years, of each member of the Supervisory Board and the Board of Managing Directors and executive officers of Siemens AG. Unless otherwise indicated, each such person is a citizen of the Federal Republic of Germany and the business address of each such person is c/o Siemens AG, Wittelsbacherplatz 2, D-80333 Munich, Federal Republic of Germany. Unless otherwise indicated, each such person has held his or her present occupation as set forth below, or has been an executive officer at Siemens AG for the past five years.
Present Principal Occupation or Employment; Name and Address Material Positions Held During the Past Five Years ---------------- -------------------------------------------------- Supervisory Board Dr. Karl-Hermann Baumann....... Chairman of the Supervisory Board since February 1998. Chief Financial Officer until February 1998. Alfons Graf.................... First Deputy Chairman of the Supervisory Board. Chairman of the Central Works Council. Dr. Rolf-E. Breuer............. Second Deputy Chairman of the Supervisory Board. Taunusanlage 12 Spokesman of the Board of Managing Directors of Deutsche D-60325 Frankfurt am Main Bank AG, Frankfurt am Main. Federal Republic of Germany Helmut Cors.................... Member of the Supervisory Board. Member of the Federal Johannes-Brahms-Platz 1 Executive Committee, Deutsche Angestellten Gewerkschaft. D-20355 Hamburg Federal Republic of Germany Bertin Eichler................. Member of the Supervisory Board. Executive Member of the Lyoner Strasse 32 Board of Management of Industriegewerkschaft Metall since D-60528 Frankfurt September 1996. First Representative of Federal Republic of Germany Industriegewerkschaft Metall, Amberg until September 1996. Jean Gandois................... Member of the Supervisory Board. Independent consultant 72 rue du Faubourg Saint since April 1999. President of Cockerill Sambre S.A., Honore Belgium, until April 1999. Citizen of France. 75008 Paris France Birgit Grube................... Member of the Supervisory Board. Member of the Works Council. Heinz Hawreliuk................ Member of the Supervisory Board. Union Secretary, Laubenheimer Strasse 88 Industriegewerkschaft Metall. D-55130 Mainz Federal Republic of Germany Ralf Heckmann.................. Member of the Supervisory Board. Chairman of the Combined Works Council.
A-1
Present Principal Occupation or Employment; Name and Address Material Positions Held During the Past Five Years ---------------- -------------------------------------------------- Robert M. Kimmitt.............. Member of the Supervisory Board. President and Vice 1600 Riviera Ave. Chairman of the Board of Commerce One, Inc. Senior Suite 200 partner, Wilmer, Cutler & Pickering, Washington D.C., Walnut Creek, CA 94596 until February 2000. Banker, Lehman Brothers until April 1997. Citizen of the United States of America. Dr. Heinz Kriwet............... Member of the Supervisory Board. Chairman of the August-Thyssen-Strasse 1 Supervisory Board of Thyssen Krupp AG since March 1999. D-40211 Duesseldorf Chairman of the Supervisory Board of Thyssen AG from Federal Republic of Germany March 1996 until March 1999. Chairman of the Board of Management of Thyssen AG until March 1996. Prof. Dr. Hubert Markl......... Member of the Supervisory Board. President of the Max- Hofgartenstrasse 8 Planck-Gesellschaft, Munich, since 1996. Professor at the D-80539 Munich University of Konstanz until 1996. Federal Republic of Germany George Nassauer................ Member of the Supervisory Board. Member of the Works Siemensdamm 50-54 Council. D-13629 Berlin Federal Republic of Germany Dr. Albrecht Schmidt........... Member of the Supervisory Board. Spokesman for the Am Tucherpark 15 Managing Directors, Bayerische Hypo-und Vereinsbank AG, D-80538 Munich Munich. Federal Republic of Germany Dr. Henning Schulte-Noelle..... Member of the Supervisory Board. Chairman of the Board of Koeniginstrasse 28 Managing Directors, Allianz AG, Munich. D-80790 Munich Federal Republic of Germany George Seubert................. Member of the Supervisory Board. Member of the Works Humboldstrasse 64 Council. D-90459 Nuremberg Federal Republic of Germany Peter von Siemens.............. Member of the Supervisory Board. Dr. Daniel L. Vasella.......... Member of the Supervisory Board. President of Novartis CH-4002 Basel International AG, Basel, Switzerland. Citizen of Switzerland Switzerland. Klaus Wigand................... Member of the Supervisory Board. Head of Department Information and Communication of Central Human Resources. Erwin Zahl..................... Member of the Supervisory Board. Member of the Works Von-der-Tann-Strasse 30 Council. D-90439 Nuremberg Federal Republic of Germany
A-2
Present Principal Occupation or Employment; Name and Address Material Positions Held During the Past Five Years - ---------------- -------------------------------------------------- Board of Managing Directors Dr. Heinrich v. Pierer......... President and Chief Executive Officer. Dr. Volker Jung................ Member of the Board of Managing Directors. Roland Koch.................... Member of the Board of Managing Directors since 1997. Hofmannstrasse 51 Member of the Group Executive Committee for Public D-81359 Munich Networks since 1995. Federal Republic of Germany Dr. Edward G. Krubasik......... Member of the Board of Managing Directors since 1997. Werner-von-Siemens-Strasse 50 Director at McKinsey & Company Inc., Munich, until D-91052 Erlangen January 1997. Federal Republic of Germany Rudi Lamprecht................. Member of the Board of Managing Directors and Chief Hofmannstrasse 51 Executive Officer and Group President of the Information D-81359 Munich and Communication Mobile Division of Siemens AG since Federal Republic of Germany April 2000. Chief Executive Officer and Group President of the Information and Communication Products Division of Siemens AG from September 1998 until April 2000. Chairman of the Group Executive Committee of the Private Communication Systems Division of Siemens AG from June 1998 until September 1998. Member of the Board of Managing Directors of Siemens Nixdorf Informationssysteme AG from January 1998 until June 1998. President of Region Europe Siemens Nixdorf Informationssysteme AG prior to January 1998. Heinz-Joachim Neubuerger....... Member of the Board of Managing Directors and Head of the Corporate Finance Department since 1997. Executive Director at Siemens Ltd., Bombay, from April 1996 until November 1997. Head of Treasury Department until April 1996. Prof. Peter Pribilla........... Member of the Board of Managing Directors. Juergen Radomski............... Member of the Board of Managing Directors. Werner-von-Siemens-Strasse 50 D-91052 Erlangen Federal Republic of Germany Dr. Uriel J. Sharef............ Member of the Board of Managing Directors since 2000. Paul-Gossen-Strasse 100 President of Siemens S.A. from 1991 through September 91052 Erlangen 1996. Chief Executive Officer and President of the Power Federal Republic of Germany Transmission and Distribution Group of Siemens AG from October 1996 through October 2000. Prof. Dr. Claus Weyrich........ Member of the Board of Managing Directors since 1996. Otto-Hahn-Ring 6 Head of Corporate Research since 1994. D-81739 Munich Federal Republic of Germany Dr. Klaus Wucherer............. Member of the Board of Managing Directors since August Gleiwitzer Strasse 555 1999. President of the Automation & Drives Group since D-90475 Nuremberg September 1998. Vice President of the Automation & Drives Federal Republic of Germany Group since 1996. Division Head until 1996.
A-3 2. Directors and Executive Officers of Parent. The following table sets forth the name and present principal occupation or employment, and material occupations, positions, offices or employment's for the past five years, of each director and executive officer of Parent. Each such person is a citizen of the United States of America, unless otherwise noted, and the business address of each such person is c/o Siemens Corporation, 153 East 53rd Street, New York, NY 10022.
Present Principal Occupation or Employment; Name and Address Material Positions Held During the Past Five Years ---------------- -------------------------------------------------- Prof. Peter Pribilla........... Director and Chairman of the Board of Directors of Parent Siemens AG and Member of the Board of Managing Directors of Siemens Wittelsbacherplatz 2 AG. Citizen of Federal Republic of Germany. D-80333 Munich Federal Republic of Germany Heinz-Joachim Neubuerger....... Member of the Board of Managing Directors and Head of the Siemens AG Corporate Finance Department of Siemens AG since 1997. Wittelsbacherplatz 2 Executive Director at Siemens Ltd., Bombay, from April D-80333 Munich 1996 until November 1997. Head of Treasury Department Federal Republic of Germany until April 1996. Citizen of Federal Republic of Germany. Gerhard Schulmeyer............. Director, President and Chief Executive Officer of Parent. Formerly President and Chief Executive Officer of Siemens Nixdorf Informationssysteme AG, Munich. Citizen of the Federal Republic of Germany. Gerald Wright.................. Director since July 19, 2000. Executive Vice President and Chief Financial Officer of Parent since October 1998. Executive Vice President and Chief Financial Officer of Siemens Business Communication Systems until October 1998. Citizen of the Federal Republic of Germany. Michael W. Schiefen............ Vice President--Corporate Development of Parent. E. Robert Lupone............... Senior Vice President, General Counsel and Secretary of Parent since July 19, 2000; Vice President, General Counsel and Secretary of Parent from September 1999 to July 18, 2000; Associate General Counsel of Parent from 1998 until September 1999. Senior Counsel of Parent until 1998. Ruth Fattori................... Senior Vice President of Human Resources of Parent since July 19, 2000; Vice President of Human Resources of Parent from September 1999 to July 18, 2000; Managing Director, Operations Europe of GE Capital until September 1999. Dana Scott Deasy............... Vice President and Chief Information Officer of Parent since September 1999. Chief Information Officer of Locomotive Group of General Motors until September 1999. Dr. Doris Larmann.............. Vice President (Acting) of Corporate Communications of Parent since October 1999. Chief Communications and Marketing Consultant to Information and Communication Products Group of Siemens AG until October 1999.
A-4 3. Directors and Executive Officers of Purchaser. The following table sets forth the name and present principal occupation or employment, and material occupations, positions, offices or employments for the past five years, of each director and executive officer of Purchaser. Each such person is a citizen of the United States of America, unless otherwise noted, and the business address of each such person is c/o Siemens Corporation, 153 East 53rd Street, New York, NY 10022.
Present Principal Occupation or Employment; Name and Address Material Positions Held During the Past Five Years ---------------- -------------------------------------------------- E. Robert Lupone............... Senior Vice President, General Counsel and Secretary of Parent since July 19, 2000; Vice President of Purchaser. Vice President, General Counsel and Secretary of Parent from September 1999 to July 18, 2000; Associate General Counsel of Parent from 1998 until September 1999. Senior Counsel of Parent until 1998. Michael W. Schiefen............ President of Purchaser. Vice President--Corporate Development of Parent. Kevin M. Royer................. Secretary of Purchaser. Counsel to Parent since 1999. Associate Counsel of Parent from 1997 until 1999. Associate with Shearman & Sterling from 1995 until 1997.
A-5 Manually signed facsimile copies of the Letter of Transmittal, properly completed and duly executed, will be accepted. The Letter of Transmittal, certificates for the shares of Company Common Stock 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 Depositary as follows: The Depositary for the Offer is: EquiServe Trust Company, N.A. By First Class Mail: By Hand Delivery: By Overnight, Certified or Express Mail: EquiServe Trust Company, Securities Transfer & Reporting EquiServe Trust Company, N.A. Services, Inc. N.A. Corporate Actions c/o EquiServe Trust Company, N.A. Corporate Actions P.O. Box 8029 100 William St./Galleria 150 Royall Street Boston, MA 02266-8029 New York, New York 10038 Canton, MA 02021 By Facsimile Transmission: (781) 575-2232 or (781) 575-2233 (for eligible institutions only) Confirm Facsimile by Telephone Only: (781) 575-3120
Any questions or requests for assistance or additional copies of the Offer to Purchase and the Letter of Transmittal, the Notice of Guaranteed Delivery and related materials may be directed to the Information Agent or the Dealer Manager at their respective telephone numbers and locations listed below. You may also contact your broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: 17 State Street, 10th Floor New York, New York 10004 Banks and Broker Call Collect: (212) 440-9800 All Others Call Toll Free: (800) 223-2064 The Dealer Manager for the Offer is: Deutsche Banc Alex. Brown Deutsche Bank Securities Inc. 130 Liberty Street, 33rd Floor New York, New York 10006 Call Toll Free: (877) 305-4920 EX-99.(A)(2) 3 0003.txt LETTER OF TRANSMITTAL Exhibit (a)(2) LETTER OF TRANSMITTAL to Tender Shares of Common Stock (Including the Associated Rights to Purchase Shares of Series A Preferred Stock) of ACUSON CORPORATION at $23 Net Per Share in Cash Pursuant to the Offer to Purchase dated October 5, 2000 by SIGMA ACQUISITION CORP. a wholly owned subsidiary of SIEMENS CORPORATION an indirect wholly owned subsidiary of SIEMENS AKTIENGESELLSCHAFT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY, NOVEMBER 2, 2000 UNLESS THE OFFER IS EXTENDED. The Depositary for the Offer is: EquiServe Trust Company, N.A. By First Class Mail: By Hand Delivery: By Overnight, Certified Securities Transfer & or Express Mail: EquiServe Trust Company, Reporting Services, Inc. N.A. c/o EquiServe Trust EquiServe Trust Company, Corporate Actions Company, N.A. N.A. P.O. Box 8029 100 William St./Galleria Corporate Actions Boston, MA 02266-8029 New York, New York 10038 150 Royall Street Canton, MA 02021 By Facsimile Transmission: (781) 575-2232 or (781) 575-2233 Confirm Facsimile by Telephone Only: (781) 575-3120 DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED BELOW, WITH SIGNATURE GUARANTEE IF REQUIRED, AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW. THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. DESCRIPTION OF TENDERED SHARES - -------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) (Please fill in exactly as name(s) appear(s) on Share Certificate(s) Tendered certificate(s) (Attach additional signed list if necessary) - ------------------------------------------------------------------------------ Total Number of Shares Total Number Certificate Represented By of Shares Number(s)(1) Certificate(s)(1) Tendered(2) -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- Total Shares - ------------------------------------------------------------------------------
(1) Need not be completed by stockholders tendering by book-entry transfer. (2) Unless otherwise indicated, it will be assumed that all Shares described above are being tendered. See Instruction 4. [_]Check here if certificates have been lost, destroyed or mutilated. See Instruction 11. Number of Shares represented by lost, destroyed or mutilated certificates: The names and addresses of the registered holders of the tendered shares should be printed, if not already printed above, exactly as they appear on the Share Certificates (as defined below) tendered hereby. This Letter of Transmittal is to be used by stockholders of Acuson Corporation if certificates for the Shares (as defined below) are to be forwarded with this Letter of Transmittal or, unless an Agent's Message (as defined in Instruction 2 below) is utilized, if delivery of the Shares is to be made by book-entry transfer to an account maintained by the Depositary at the Book-Entry Transfer Facility (as defined in and pursuant to the procedures set forth in Section 3 of the Offer to Purchase as defined below). Holders who deliver Shares by book-entry transfer are referred to herein as "Book-Entry Stockholders" and other stockholders who deliver Shares are referred to herein as "Certificate Stockholders." Stockholders whose certificates for the Shares are not immediately available or who cannot deliver either the 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 documents required hereby to the Depositary prior to the Expiration Date (as defined in the Offer to Purchase), or the expiration of any Subsequent Offering Period (as defined in the Offer to Purchase), must tender their Shares pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. TENDER OF SHARES [_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): Name of Tendering Institution: ____________________________________________ Account Number: ___________________________________________________________ Transaction Code Number: __________________________________________________ - ------------------------------------------------------------------------------- [_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING. Name(s) of Registered Holder(s): __________________________________________ Window Ticket Number (if any): ____________________________________________ Date of Execution of Notice of Guaranteed Delivery: _______________________ Name of Eligible Institution which Guaranteed Delivery: ___________________ 2 NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL CAREFULLY Ladies and Gentlemen: The undersigned hereby tenders to Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Parent"), which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany, the above-described shares of common stock, par value $0.0001 per share, of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase shares of Series A Preferred Stock (the "Rights") issued pursuant to the Amended and Restated Rights Agreement (the "Rights Agreement"), dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), at $23.00 per Share, net to the seller in cash (the "Common Stock Price"), upon the terms and subject to the conditions set forth in the Offer to Purchase dated October 5, 2000 (the "Offer to Purchase") and in this related Letter of Transmittal (which, together with any amendments or supplements hereto or thereto, collectively constitute the "Offer"). Receipt of the Offer is hereby acknowledged. The Company has distributed one Right for each outstanding share of Common Stock pursuant to the Rights Agreement. The Rights are currently evidenced by and trade with certificates evidencing the shares of Common Stock. The Company has taken such action so as to make the Rights Agreement inapplicable to Parent, Purchaser and their respective affiliates in connection with the Offer and the other transactions contemplated by the Merger Agreement (as defined below). The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of September 26, 2000 (the "Merger Agreement"), by and among Parent, Purchaser and the Company. Upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms of any such extension or amendment), subject to, and effective upon, acceptance for payment of the Shares tendered herewith in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser all right, title and interest in and to all the Shares that are being tendered hereby (and any and all non-cash dividends, distributions, rights, other shares of common stock or other securities issued or issuable in respect thereof on or after September 26, 2000 (collectively, "Distributions")) and irrevocably constitutes and appoints EquiServe Trust Company, N.A. (the "Depositary") the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares (and all 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 for such Shares (and any and all Distributions), or transfer ownership of such Shares (and any and all Distributions) on the account books maintained by the Book-Entry Transfer Facility, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of Purchaser, (ii) present such Shares (and any and all 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 and all Distributions), all in accordance with the terms of the Offer. By executing this Letter of Transmittal, the undersigned hereby irrevocably appoints Purchaser, its officers and designees, and each of them, and any other designees of Purchaser, the attorneys-in-fact and proxies of the undersigned, each with full power of substitution, (i) to vote at any annual or special meeting of the Company's stockholders or any adjournment or postponement thereof or otherwise in such manner as each such attorney-in-fact and proxy or his substitute shall in his sole discretion deem proper with respect to, (ii) to execute any written consent concerning any matter as each such attorney-in-fact and proxy or his substitute shall in his sole discretion deem proper with respect to, and (iii) to otherwise act as each such attorney- in-fact and proxy or his substitute shall in his sole discretion deem proper with respect to, all of the Shares (and any and all Distributions) tendered hereby and accepted for payment by Purchaser. This appointment will be effective if and when, and only to the 3 extent that, Purchaser accepts such Shares for payment pursuant to the Offer. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such Shares in accordance with the terms of the Offer. Such acceptance for payment shall, without further action, revoke any prior powers of attorney and proxies granted by the undersigned at any time with respect to such Shares (and any and all Distributions), and no subsequent powers of attorney, proxies, consents or revocations may be given by the undersigned with respect thereto (and, if given, will not be deemed effective). Purchaser reserves the right to require that, in order for the Shares to be deemed validly tendered, immediately upon Purchaser's acceptance for payment of such Shares, Purchaser must be able to exercise full voting, consent and other rights with respect to such Shares (and any and all Distributions), including voting at any meeting of the Company's stockholders. 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 all Distributions, that the undersigned owns the Shares tendered hereby within the meaning of Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that the tender of the tendered Shares complies with Rule 14e-4 under the Exchange Act, and that when the same are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered title thereto and to all Distributions, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claims. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby and all Distributions. In addition, the undersigned shall remit and transfer promptly to the Depositary for the account of Purchaser all Distributions 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 each such Distribution and may withhold the entire purchase price of the Shares tendered hereby or deduct from such purchase price the amount or value of such Distribution as determined by Purchaser in its sole discretion. All authority conferred in this Letter of Transmittal or agreed to be conferred shall survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, the tender made by this Letter of Transmittal is irrevocable. The undersigned understands that the valid tender of the 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 upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms or conditions of any such extension or amendment). Without limiting the foregoing, if the price to be paid in the Offer is amended in accordance with the terms of the Merger Agreement, the price to be paid to the undersigned will be the amended price notwithstanding the fact that a different price is stated in this Letter of Transmittal. 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 under "Special Payment Instructions," please issue the check for the purchase price of all Shares purchased and/or return any certificates for any Shares not tendered or accepted for payment in the name(s) of the registered holder(s) appearing above under "Description of the Shares Tendered." Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail the check for the purchase price of all Shares purchased and/or return any certificates for any Shares not tendered or not accepted for payment (and any accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing above under "Description of the Shares Tendered." In the event that the boxes entitled "Special Payment Instructions" and "Special Delivery Instructions" are both completed, please issue the check for the purchase price of all Shares purchased and/or return any certificates evidencing Shares not tendered or not accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, and deliver such check and/or return any such certificates (and any accompanying documents, as appropriate) to, the person(s) so 4 indicated. Unless otherwise indicated herein in the box entitled "Special Payment Instructions," please credit any Shares tendered herewith by book- entry transfer that are not accepted for payment by crediting the account at the Book-Entry Transfer Facility designated above. 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 thereof if Purchaser does not accept for payment any of the Shares so tendered. SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (See Instructions 1, 5, 6 and 7) (See Instructions 1, 5, 6 and 7) To be completed ONLY if the To be completed ONLY if check for the purchase price of certificates for any Shares not the Shares accepted for payment is tendered or not accepted for to be issued in the name of payment and/or the check for the someone other than the purchase price of any Shares undersigned, if certificates for accepted for payment is to be sent any Shares not tendered or not to someone other than the accepted for payment are to be undersigned or to the undersigned issued in the name of someone at an address other than that other than the undersigned or if shown under "Description of the any Shares tendered hereby and Shares Tendered." Mail check delivered by book-entry transfer and/or stock certificates to: that are not accepted for payment are to be returned by credit to an account maintained at a Book-Entry Transfer Facility other than the account indicated above. Mail check and/or stock certificates to: Name ______________________________ (Please Print) Address ___________________________ Issue check and/or stock (Include Zip Code) certificates to: ___________________________________ Name ______________________________ (Taxpayer Identification or Social (Please Print) Security Number) (See Substitute Address ___________________________ Form W-9) (Include Zip Code) ___________________________________ (Taxpayer Identification or Social Security Number) (See Substitute Form W-9) [_]Credit Shares delivered by book-entry transfer and not purchased to the Book-Entry Transfer Facility account. Account number: ___________________ 5 IMPORTANT: STOCKHOLDER SIGN HERE (Complete Substitute Form W-9 included) ----------------------------------------------------------------------------- ----------------------------------------------------------------------------- Signature(s) of Owner(s) DATED: _____________________________, 2000 (Must be signed by the registered holder(s) exactly as name(s) appear(s) on the stock certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted with this Letter of Transmittal. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, agents, officers of corporations or others acting in a fiduciary or representative capacity, please provide the necessary information described in Instruction 5.) Name(s): ____________________________________________________________________ ----------------------------------------------------------------------------- (Please Print) Capacity (Full Title): ______________________________________________________ Address: ____________________________________________________________________ ----------------------------------------------------------------------------- (Include Zip Code) Area Code and Telephone Number: ( ) _________ _________ _________ Tax Identification or Social Security No.: __________________________________ (Complete Substitute Form W-9 included) GUARANTEE OF SIGNATURE(S) (See Instructions 1 and 5) Authorized Signature: _______________________________________________________ Name: _______________________________________________________________________ Title: ______________________________________________________________________ Name of Firm: _______________________________________________________________ Address: ____________________________________________________________________ Area Code and Telephone Number: ( ) _____________ _____________ Dated: _____________________________, 2000 6 INSTRUCTIONS Forming Part of the Terms and Conditions of the Offer 1. Guarantee of Signatures. 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 purposes of this Section, includes any participant in any of the Book-Entry Transfer Facility's systems whose name appears on a security position listing as the owner of the Shares) of the Shares tendered herewith, unless such registered holder(s) has completed either the box entitled "Special Payment Instructions" or the box entitled "Special Delivery Instructions" on the 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 or by any other "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Exchange Act (each, an "Eligible Institution"). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5. 2. Requirements of Tender. This Letter of Transmittal is to be completed by stockholders of the Company either if certificates are to be forwarded with this Letter of Transmittal or, unless an Agent's Message is utilized, if delivery of the Shares is to be made by book-entry transfer pursuant to the procedures set forth herein and in Section 3 of the Offer to Purchase. For a stockholder validly to tender Shares pursuant to the Offer, either (a) a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof), together with any required signature guarantees or an Agent's Message (in connection with book-entry transfer of the Shares) and any other required documents, must be received by the Depositary at one of its addresses set forth herein prior to the Expiration Date, or the expiration of any Subsequent Offering Period, and either (i) certificates for tendered Shares must be received by the Depositary at one of such addresses prior to the Expiration Date, or the expiration of any Subsequent Offering Period, or (ii) Shares must be delivered pursuant to the procedures for book-entry transfer set forth herein and in Section 3 of the Offer to Purchase and a Book-Entry Confirmation must be received by the Depositary prior to the Expiration Date, or the expiration of any Subsequent Offering Period, or (b) the tendering stockholder must comply with the guaranteed delivery procedures set forth herein and in Section 3 of the Offer to Purchase. Stockholders whose certificates for the Shares are not immediately available or who cannot deliver their certificates and all other required documents to the Depositary prior to the Expiration Date, or the expiration of any Subsequent Offering Period, or who cannot comply with the book-entry transfer procedures on a timely basis may tender their Shares by properly completing and duly executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth herein and in Section 3 of the Offer to Purchase. Pursuant to such guaranteed delivery procedures, (i) such tender must be made by or through an Eligible Institution, (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by Purchaser, must be received by the Depositary prior to the Expiration Date, or the expiration of any Subsequent Offering Period, and (iii) the certificates for all tendered Shares, in proper form for transfer (or a Book-Entry Confirmation with respect to all 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 required documents must be received by the Depositary within three trading days after the date of execution of such Notice of Guaranteed Delivery. A "trading day" is any day on which the New York Stock Exchange is open for business. The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to, and received by, the Depositary and forming a part of a Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has received an express acknowledgment from the participant in such Book-Entry Transfer Facility tendering the Shares, that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that Purchaser may enforce such agreement against the participant. The signatures on this Letter of Transmittal cover the Shares tendered hereby. 7 The method of delivery of the Shares, this Letter of Transmittal and all other required documents, including delivery through the Book-Entry Transfer Facility, is at the election and risk of the tendering stockholder. The Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by Book-Entry Confirmation). 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 executing this Letter of Transmittal (or a manually signed facsimile thereof), waive any right to receive any notice of acceptance of their Shares for payment. 3. Inadequate Space. If the space provided herein under "Description of Shares Tendered" is inadequate, the number of Shares tendered and the certificate numbers with respect to such Shares should be listed on a separate signed schedule which should be attached to this Letter of Transmittal. 4. Partial Tenders. (Not applicable to stockholders who tender by book-entry transfer). If fewer than all the Shares evidenced by any certificate delivered to the Depositary with this Letter of Transmittal are to be tendered hereby, fill in the number of Shares that are to be tendered in the box entitled "Total Number of Shares Tendered." In any such case, new certificate(s) for the remainder of the Shares that were evidenced by the old certificates will be sent to the registered holder, unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the Expiration Date, or the expiration of any Subsequent Offering Period, or the termination of the Offer. All Shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever. If any of the Shares tendered hereby are held of record by two or more joint owners, all such 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 stock certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to Purchaser of the authority of such person 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 stock powers are required unless payment or certificates for any Shares tendered or not accepted for payment are to be issued in the name of a person other than the registered holder(s). Signatures on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Shares evidenced by certificates listed and transmitted hereby, the certificates must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear(s) on the certificates. Signature(s) on any such certificates or stock powers must be guaranteed by an Eligible Institution. 6. Stock Transfer Taxes. Except as otherwise provided in this Instruction 6, Purchaser will pay all stock transfer taxes with respect to the transfer and sale of any Shares to it or its order pursuant to the Offer. If, however, payment of the purchase price of any Shares purchased is to be made to, or if certificates for any Shares not tendered or not accepted for payment 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 8 Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered holder(s) or such other person) payable on account of the transfer to such other person will be deducted from the purchase price of such Shares purchased unless evidence satisfactory to Purchaser 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 certificates evidencing the Shares tendered hereby. 7. Special Payment And Delivery Instructions. If a check for the purchase price of any Shares accepted for payment is to be issued in the name of, and/or certificates for any Shares not accepted for payment or not tendered are to be issued in the name of and/or returned to, a person other than the signer of this Letter of Transmittal or if a check is to be sent, and/or such certificates are to be returned, to a person 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. Any stockholder(s) delivering Shares by book-entry transfer may request that Shares not purchased be credited to such account maintained at the Book-Entry Transfer Facility as such stockholder(s) may designate in the box entitled "Special Payment Instructions." If no such instructions are given, any such Shares not purchased will be returned by crediting the account at the Book- Entry Transfer Facility designated above as the account from which such Shares were delivered. 8. Backup Withholding. In order to avoid "backup withholding" of Federal income tax on payments of cash pursuant to the Offer, a stockholder surrendering Shares in the Offer must, unless an exemption applies, provide the Depositary with such stockholder's correct taxpayer identification number ("TIN") on the Substitute Form W-9 in this Letter of Transmittal and certify, under penalties of perjury, that such TIN is correct. If a tendering stockholder is subject to backup withholding, such stockholder must cross out item (2) of the Certification box on the Substitute Form W-9. Backup withholding is not an additional income tax. Rather, the amount of the backup withholding can be credited against the Federal income tax liability of the person subject to the backup withholding, provided that the required information is given to the IRS. If backup withholding results in an overpayment of tax, a refund can be obtained by the stockholder upon filing an income tax return. The stockholder is required to give the Depositary the TIN (i.e., social security number or employer identification number) of the record owner of the Shares tendered with this Letter of Transmittal. If the Shares are held 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. 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, such stockholder should write "Applied For" in the space provided for the TIN in Part 1 of the Substitute Form W-9 and sign and date the Substitute Form W-9, and the stockholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the Certificate of Awaiting Taxpayer Identification Number is completed, the Depositary will withhold 31% on all payments made prior to the time a properly certified TIN is provided to the Depositary. However, such amounts will be refunded to such stockholder if a TIN is provided to the Depositary within 60 days. Certain stockholders (including, among others, all corporations and certain foreign individuals and entities) are not subject to backup withholding. Noncorporate foreign stockholders should complete and sign the main signature form and a Form W-8, Certificate of Foreign Status, a copy of which may be obtained from the Depositary, in order to avoid backup withholding. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for more instructions. 9. Requests For Assistance Or Additional Copies. Questions and requests for assistance or additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines 9 for Certification of Taxpayer Identification Number on Substitute Form W-9 may be directed to the Information Agent or the Dealer Manager at the addresses and phone numbers set forth below, or from brokers, dealers, commercial banks or trust companies. 10. Waiver Of Conditions. Subject to the Merger Agreement, Purchaser reserves the absolute right in its sole discretion to waive, at any time or from time to time, any of the specified conditions of the Offer, in whole or in part, in the case of any Shares tendered. 11. Lost, Destroyed Or Stolen Certificates. If any certificate(s) representing Shares has been lost, destroyed or stolen, the stockholder should promptly notify the Depositary by either checking the box provided under the table "Description of Tendered Shares" or by calling (781) 575-3120 and indicating the number of Shares lost. The stockholder 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, destroyed or stolen certificates have been followed. IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE HEREOF) 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 PRIOR TO THE EXPIRATION DATE, OR THE EXPIRATION OF ANY SUBSEQUENT OFFERING PERIOD, AND EITHER CERTIFICATES FOR TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE EXPIRATION OF ANY SUBSEQUENT OFFERING PERIOD, OR THE TENDERING STOCKHOLDERS MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY. 10 IMPORTANT TAX INFORMATION Under 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 taxpayer identification number on Substitute Form W-9 below. If such stockholder is an individual, the taxpayer identification number is his or her social security number. If the Depositary is not provided with the correct taxpayer identification number, the stockholder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, payments that are made to such stockholder with respect to Shares purchased pursuant to the Offer may be subject to backup withholding of 31%. Certain stockholders (including, among others, all corporations, and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, that stockholder must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Such statements can be obtained from the Depositary. Exempt stockholders, other than foreign individuals, should furnish their TIN, write "Exempt" on the face of the Substitute Form W-9 below, and sign, date and return the Substitute Form W-9 to the Depositary. See the enclosed Guidelines for Certification 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 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 withholding on payments that are made to a stockholder with respect to Shares purchased pursuant to the Offer, the stockholder is required to notify the Depositary of such stockholder's correct taxpayer identification number by completing the form contained herein certifying that the taxpayer identification number provided on Substitute Form W-9 is correct (or that such stockholder is awaiting a taxpayer identification number). 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 owner of the Shares. If the Shares are 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. 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, such stockholder should write "Applied For" in the space provided for the TIN in Part 1 of the Substitute Form W-9 and sign and date the Substitute Form W-9, and the stockholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the Certificate of Awaiting Taxpayer Identification Number is completed, the Depositary will withhold 31% on all payments made prior to the time a properly certified TIN is provided to the Depositary. However, such amounts will be refunded to such stockholder if a TIN is provided to the Depositary within 60 days. 11 PAYER'S NAME: EquiServe Trust Company, N.A. Part 1--PLEASE PROVIDE YOUR Social Security Number TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW SUBSTITUTE OR __________________ Form W-9 Department of Employer the Treasury Identification Number Internal ------------------------------------------------------ Revenue Service Part 2--Check the box if you are NOT subject to backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code because (1) you are exempt from backup withholding, or (2) you have not been notified that you are subject to backup withholding as a result of failure to report all interest or dividends or (3) the Internal Revenue Service has notified you that you are no longer subject to backup withholding. [_] Payer's Request for CERTIFICATION--UNDER THE PENALTIES OF Part 3 -- Taxpayer Identification PERJURY, I CERTIFY THAT THE INFORMATION Awaiting Number (TIN) PROVIDED ON THIS FORM IS TRUE, CORRECT TIN [_] AND COMPLETE. SIGNATURE _________________ DATE _______ ------------------------------------------------------ NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF 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 made to me will be withheld, but that such amounts will be refunded to me if I then provide a Taxpayer Identification Number within sixty (60) days. SIGNATURE ________________________________ DATE ____________________________ MANUALLY SIGNED FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL WILL BE ACCEPTED. THE LETTER OF TRANSMITTAL, CERTIFICATES FOR THE SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH STOCKHOLDER OF THE COMPANY OR SUCH STOCKHOLDER'S BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE TO THE DEPOSITARY AT ONE OF ITS ADDRESSES SET FORTH ON THE FIRST PAGE. 12 Questions and requests for assistance or for additional copies of the Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other tender offer materials may be directed to the Information Agent or the Dealer Manager at their respective telephone numbers and locations listed 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: 17 State Street, 10th Floor New York, New York 10004 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll Free: (800) 223-2064 The Dealer Manager for the Offer is: Deutsche Banc Alex. Brown Deutsche Bank Securities Inc. 130 Liberty Street, 33rd Floor New York, New York 10006 Call Toll Free: (877) 305-4920 EX-99.(A)(3) 4 0004.txt NOTICE OF GUARANTEED DELIVERY Exhibit (a)(3) NOTICE OF GUARANTEED DELIVERY for Tender of Shares of Common Stock (Including the Associated Rights to Purchase Shares of Series A Preferred Stock) of ACUSON CORPORATION Pursuant to the Offer to Purchase dated October 5, 2000 by SIGMA ACQUISITION CORP. a wholly owned subsidiary of SIEMENS CORPORATION an indirect wholly owned subsidiary of SIEMENS AKTIENGESELLSCHAFT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME ON THURSDAY, NOVEMBER 2, 2000, UNLESS THE OFFER IS EXTENDED. This Notice of Guaranteed Delivery, or a form substantially equivalent hereto, must be used to accept the Offer (as defined below) (i) if certificates for the Shares (as defined below) are not immediately available, (ii) if the procedure for book-entry transfer cannot be completed prior to the Expiration Date (as defined in the Offer to Purchase described below) or the expiration of any Subsequent Offering Period (as defined in the Offer to Purchase described below), or (iii) if time will not permit all required documents to reach the Depositary prior to the Expiration Date, or the expiration of any Subsequent Offering Period. This Notice of Guaranteed Delivery may be delivered by hand, transmitted by facsimile transmission or mailed to the Depositary. See Section 3 of the Offer to Purchase. The Depositary for the Offer is: EquiServe Trust Company, N.A. By First Class Mail: By Hand Delivery: By Overnight, Certified or Express Mail Delivery: EquiServe Trust Securities Transfer & EquiServe Trust Company, N.A. Reporting Services, Company, N.A. Corporate Corporate Actions Inc. Actions P.O. Box 8029 c/o EquiServe Trust 150 Royall Street Boston, MA 02266-8029 Company, N.A. Canton, MA 02021 100 Williams Street/Galleria New York, New York 10038 By Facsimile Transmission: (781) 575-2232 or (781) 575-2233 Confirm Facsimile by Telephone Only: (781) 575-3120 DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. THIS FORM 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. Ladies and Gentlemen: The undersigned hereby tenders to Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation, which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany, upon the terms and subject to the conditions set forth in Purchaser's Offer to Purchase dated October 5, 2000 (the "Offer to Purchase") and the related Letter of Transmittal, receipt of which is hereby acknowledged, the number of shares set forth below of common stock, par value $0.0001 per share (the "Common Stock"), of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase Series A Preferred Stock (the "Rights"), issued pursuant to the Amended and Restated Rights Agreement, dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Number of Shares: ___________________________________________________________ Name(s) of Record Holder(s): ________________________________________________ (Please Print) Address(es): ________________________________________________________________ (Include Zip Code) Area Code and Tel. No: ( ) __________ __________ __________ Certificate Nos. (if available): ____________________________________________ Taxpayer Identification or Social Security Number: __________________________ Check box if Shares will be tendered by book-entry transfer: [_] The Depository Trust Company Signature(s): _______________________________________________________________ Account Number: _____________________________________________________________ Dated: ________________________________ , 2000 THE GUARANTEE ON THE FOLLOWING PAGE MUST BE COMPLETED. 2 GUARANTEE (Not to be used for signature guarantee) The undersigned, a participant in the Security Transfer Agents Medallion Program, hereby guarantees to deliver to the Depositary, at one of its addresses set forth above, either the certificates representing the Shares tendered hereby, in proper form for transfer, or a Book-Entry Confirmation (as defined in the Offer to Purchase) of a transfer of such Shares into the Depositary's account at The Depository Trust Company, in any such 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 the Offer to Purchase), and any other documents required by the Letter of Transmittal within three New York Stock Exchange trading days after the date of execution of this Notice of Guaranteed Delivery. 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 financial loss to such Eligible Institution. Name of Firm: _______________________________________________________________ (Authorized Signature) Address: ___________________________________________________________________ (Zip Code) Area Code and Tel. No: ( ) ____________ ____________ ____________ Name: _______________________________________________________________________ Title: ______________________________________________________________________ Dated: ________________________________ , 2000 NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL 3 EX-99.(A)(4) 5 0005.txt FORM W-9 Exhibit (a)(4) 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 (joint account) the account or, if combined funds, the first individual on the account(1) 3. Custodian account of a The minor(2) minor (Uniform Gift to Minors Act) 4.a The usual revocable The grantor- savings trust account trustee(1) (grantor is also trustee) b So-called trust account The actual owner(1) that is not a legal or valid trust under State law 5. Sole proprietorship The owner(3) account 6. Sole proprietorship The owner(3) 7. A valid trust, estate, The legal entity or pension trust (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)(4) - ----------------------------------------------- -----
Give the EMPLOYER IDENTIFICATION For this type of account: number of-- ---- 8. Corporate account The corporation 9. Religious, charitable, The organization or educational organization account 10. Partnership account The partnership held in the name of the partnership 11. Association, club, or The organization other tax-exempt organization 12. A broker or registered The broker or nominee nominee 13. Account with the The public entity Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments
(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) You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or employer identification number. (4) 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 do not have a TIN or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card (for individuals), or Form SS-4, Application for Employer Identification Number (for business and all other entities), at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. Payees and Payments Exempt from Backup Withholding Payees specifically exempted from backup withholding on broker transactions include the following: . A corporation. . An organization exempt from tax under section 501(a) of the Internal Revenue Code of 1986, as amended (the "Code"), or an individual retirement plan. . The United States of America (the "U.S.") or any of its agencies or instrumentalities. . A state, the District of Columbia, a possession of the U.S., or any of their political subdivisions or instrumentalities. . A foreign government or any of its political subdivisions, agencies, or instrumentalities. . An international organization or any of its agencies or instrumentalities. . A foreign central bank of issue. . A dealer in securities or commodities required to register in the U.S. or a possession of the U.S. . A futures commission merchant registered with the Commodity Futures Trading Commission. . A real estate investment trust. . An entity registered at all times during the tax year under the Investment Company Act of 1940. . A common trust fund operated by a bank under section 584(a) of the Code. . A financial institution. . A person registered under the Investment Advisors Act of 1940 who regularly acts as a broker. Payments of dividends not generally subject to backup withholding include the following: . Payments to nonresident aliens subject to withholding under Section 1441 of the Code. . Payments to partnership not engaged in a trade or business in the U.S. and which have at least one nonresident partner. . Payments described in Section 404(k) of the Code made by an employee stock ownership plan. . Payments made by certain foreign organizations. Payments of interest not generally subject to backup withholding include the following: . 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 TIN to the payer. . Payments of tax-exempt interest (including exempt interest dividends under section 852 of the Code). . Payments described in section 6049(b)(5) of the Code to nonresident aliens. . Payments on tax-free covenant bonds under section 1451 of the Code. . Payments made by certain foreign organizations. . Mortgage interest paid to you. Exempt payees described above should complete a Substitute Form W-9 to avoid possible erroneous backup withholding. YOU MUST FILE THE FORM W-9 WITH THE PAYER. FURNISH YOUR TIN, WRITE "EXEMPT" ON THE FACE OF THE FORM W-9, SIGN AND DATE THE FORM W-9 AND RETURN IT TO THE PAYER. IF YOU ARE A NONRESIDENT ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACK-UP WITHHOLDING, FILE WITH THE PAYER A COMPLETED INTERNAL REVENUE FORM W-8BEN (CERTIFICATE OF FOREIGN STATUS). 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 Sections 6041, 6041A(a), 6042, 6044, 6045, 6049 and 6050A and 6050N of the Code and the regulations promulgated therein. Privacy Act Notice.--Section 6109 of the Code requires most recipients of dividends, interest, or other payments to give their TIN to payers who must report the payments to IRS. The IRS uses the TIN for identification purposes. Payers must generally withhold 31% of taxable interest, dividends, and certain other payments to a payee who does not furnish a TIN to a payer. Certain penalties may also apply. Penalties (1) Penalty for Failure to Furnish TIN.--If you fail to furnish your TIN 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) 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 penalty of $500. (3) 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 IRS EX-99.(A)(5) 6 0006.txt FORM OF LETTERS TO BROKERS Exhibit (a)(5) Deutsche Banc Alex. Brown OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (Including the Associated Rights to Purchase Shares of Series A Preferred Stock) of ACUSON CORPORATION at $23 Net Per Share in Cash by SIGMA ACQUISITION CORP. a wholly owned subsidiary of SIEMENS CORPORATION an indirect wholly owned subsidiary of SIEMENS AKTIENGESELLSCHAFT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY, NOVEMBER 2, 2000, UNLESS THE OFFER IS EXTENDED. October 5, 2000 To Brokers, Dealers, Commercial Bank, Trust Companies and Other Nominees: We have been appointed by Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Parent"), which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany, to act as Dealer Manager in connection with Purchaser's offer to purchase all outstanding Shares of common stock, par value $0.0001 per share (the "Common Stock"), of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase shares of Series A Preferred Stock (the "Rights") issued pursuant to the Amended and Restated Rights Agreement (the "Rights Agreement"), dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), at $23.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated October 5, 2000, and in the related Letter of Transmittal (which, together with any amendments or supplements hereto or thereto, collectively constitute the "Offer") enclosed herewith. Please furnish copies of the enclosed materials to those of your clients for whose accounts you hold Shares registered in your name or in the name of your nominee. The Offer is being made in accordance with an Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 26, 2000, by and among Parent, Purchaser and the Company. The Merger Agreement provides for, among other things, the making of the Offer by Purchaser, and further provides that Purchaser will merge with and into the Company (the "Merger") as soon as practicable following the satisfaction or waiver of each of the conditions to the Merger set forth in the Merger Agreement. Following the Merger, the Company will continue as the surviving corporation, wholly owned by Parent, and the separate corporate existence of Purchaser will cease. The Board of Directors of the Company, at a meeting held on September 26, 2000, by unanimous vote determined that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company and the Company's stockholders, approved the Merger and the other transactions contemplated by the Merger Agreement and approved the Merger Agreement. The Board of Directors unanimously recommends that the Company's stockholders accept the Offer, tender their Shares in response to the Offer and, if required under Delaware law or the Company's Certificate of Incorporation or Bylaws, vote to adopt the Merger Agreement. The Offer is conditioned upon, among other things, (i) a number of Shares being validly tendered and not withdrawn on the applicable Expiration Date (as defined in the Offer to Purchase) for the Offer that, together with any Shares owned by Parent or any of its affiliates (including Purchaser), represents at least a majority of the total number of (a) all outstanding Shares plus (b) all Shares issuable upon exercise of options and other similar rights that by their terms are or will become exercisable before December 31, 2000 (or, under certain circumstances described in the Offer to Purchase, March 31, 2001) and (ii) the receipt of approvals required by or the expiration or termination of the applicable waiting period under United States and German antitrust and competition laws. The Offer is also subject to the satisfaction or waiver of certain other conditions. See Sections 1 and 13 the Offer to Purchase. For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we are enclosing the following documents: 1. Offer to Purchase dated October 5, 2000; 2. Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients; 3. Notice of Guaranteed Delivery to be used to accept the Offer if certificates for the Shares and all other required documents cannot be delivered to EquiServe Trust Company, N.A. (the "Depositary"), or if the procedures for book-entry transfer cannot be completed, by the Expiration Date or the expiration of any Subsequent Offering Period (as defined in the Offer to Purchase); 4. A printed form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Offer; 5. A letter to stockholders of the Company from Samuel H. Maslak, Chief Executive Officer of the Company, together with a Solicitation/Recommendation Statement on Schedule 14D-9 dated October 5, 2000, which has been filed by the Company with the Securities and Exchange Commission which includes the recommendation of the Board of Directors of the Company that stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer; 6. Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9; and 7. A return envelope addressed to the Depositary. 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 pay for any Shares which are validly tendered prior to the Expiration Date, or any Subsequent Offering Period, and not theretofore properly withdrawn, when permitted, when, as and if Purchaser gives oral or written notice to the Depositary of Purchaser's acceptance of such Shares for payment pursuant to the Offer. Purchaser does not currently intend to make a Subsequent Offering Period available following the Expiration Date pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended, although it reserves the right to do so in its sole discretion. Payment for any Shares purchased pursuant to the Offer will in all cases be made only after timely receipt by the Depositary of (i) certificates for the Shares, or timely confirmation of a book-entry transfer of such Shares into the Depositary's account at The Depository Trust Company, pursuant to the procedures described in Section 3 of the Offer to Purchase, (ii) a properly completed and duly executed Letter of Transmittal (or a properly completed and manually signed facsimile thereof) or an Agent's Message (as defined in the Offer to Purchase) in connection with a book-entry transfer and (iii) all other documents required by the Letter of Transmittal. Purchaser will not pay any fees or commissions to any broker or dealer or other person (other than the Depositary, the Information Agent and the Dealer Manager as described in the Offer to Purchase) for soliciting tenders of the Shares pursuant to the Offer. Purchaser will, however, upon request, reimburse brokers, dealers, commercial banks and trust companies for customary mailing and handling costs incurred by them in forwarding the enclosed materials to their customers. Purchaser will pay or cause to be paid all stock transfer taxes applicable to its purchase of the Shares pursuant to the Offer, except as otherwise provided in Instruction 6 of the Letter of Transmittal. 2 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 THURSDAY, NOVEMBER 2, 2000 UNLESS THE OFFER IS EXTENDED. In order to take advantage of the Offer, (i) a duly executed and properly completed Letter of Transmittal (or a manually signed facsimile thereof), with any required signature guarantees, or an Agent's Message (as defined in the Offer to Purchase) in connection with a book-entry transfer of the Shares, and any other required documents, should be sent to the Depositary and (ii) certificates representing the tendered Shares should be delivered or tendered by book-entry transfer, all in accordance with the Instructions set forth in the Letter of Transmittal and in the Offer to Purchase. If holders of the Shares wish to tender, but it is impracticable for them to forward their certificates or other required documents or to complete the procedures for delivery by book-entry transfer prior to the Expiration Date, a tender may be effected by following the guaranteed delivery procedures specified in Section 3 of the Offer to Purchase. Any inquiries you may have with respect to the Offer should be addressed to, and additional copies of the enclosed materials may be obtained from, the Information Agent or the undersigned at the addresses and telephone numbers set forth on the back cover of the Offer to Purchase. Very truly yours, DEUTSCHE BANK SECURITIES INC. NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU AS AN AGENT OF PURCHASER, PARENT, THE COMPANY, THE DEALER MANAGER, THE INFORMATION AGENT, THE DEPOSITARY, OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. 3 EX-99.(A)(6) 7 0007.txt FORM OF LETTER TO CLIENTS Exhibit (a)(6) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (Including the Associated Rights to Purchase Shares of Series A Preferred Stock) of ACUSON CORPORATION at $23 Net Per Share in Cash by SIGMA ACQUISITION CORP. a wholly owned subsidiary of SIEMENS CORPORATION an indirect wholly owned subsidiary of SIEMENS AKTIENGESELLSCHAFT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY, NOVEMBER 2, 2000, UNLESS THE OFFER IS EXTENDED. October 5, 2000 To Our Clients: Enclosed for your consideration are the Offer to Purchase dated October 5, 2000 (the "Offer to Purchase") and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") in connection with the offer by Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Parent"), which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany, to purchase all outstanding shares of common stock, par value $0.0001 per share (the "Common Stock"), of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase shares of Series A Preferred Stock (the "Rights") issued pursuant to the Amended and Restated Rights Agreement (the "Rights Agreement"), dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), at $23.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase. We are the holder of record of the Shares held for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The enclosed Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account. We request instructions as to whether you wish us to tender any or all of the Shares held by us for your account, upon the terms and subject to the conditions set forth in the Offer to Purchase. Your attention is invited to the following: 1. The tender price is $23.00 per Share, net to you in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase. 2. The Offer is being made for all outstanding Shares. 3. This Offer is being made in accordance with an Agreement and Plan of Merger (the "Merger Agreement") dated as of September 26, 2000, by and among Parent, Purchaser and the Company. The Board of Directors of the Company, at a meeting held on September 26, 2000, by unanimous vote determined that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company and the Company's stockholders, approved the Merger and the other transactions contemplated by the Merger Agreement and approved the Merger Agreement. The Board of Directors unanimously recommends that the Company's stockholders accept the Offer, tender their Shares in the Offer and, if required under Delaware law or the Company's Certificate of Incorporation or Bylaws, vote to adopt the Merger Agreement. 4. The Offer and withdrawal rights expire at 12:00 Midnight, New York City time, on Thursday, November 2, 2000, unless the Offer is extended. Purchaser does not currently intend to make a subsequent offering period available following the expiration of the Offer pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended, although it reserves the right to do so in its sole discretion. 5. The Offer is conditioned upon, among other things, (i) a number of Shares being validly tendered and not withdrawn on the applicable expiration date of the Offer that, together with any Shares owned by Parent or any of its affiliates (including the Purchaser), represents at least a majority of the total number of (a) all outstanding Shares plus (b) all Shares issuable upon exercise of options and other similar rights that by their terms are or will become exercisable before December 31, 2000 (or, under certain circumstances described in the Offer to Purchase, March 31, 2001) and (ii) the receipt of approvals required by or the expiration or termination of the applicable waiting periods under United States and German antitrust and competition laws. The Offer is also subject to the satisfaction or waiver of certain other conditions. See Sections 1 and 13 of the Offer to Purchase. 6. Any stock transfer taxes applicable to the sale of the Shares to Purchaser pursuant to the Offer will be paid by Purchaser, except as otherwise provided in Instruction 6 of the Letter of Transmittal. The Offer is being made solely by the Offer to Purchase and the related Letter of Transmittal and is being made to all holders of the Shares. Purchaser is not aware of any state where the making of the Offer is prohibited by administrative or judicial action pursuant to any valid state statute. If Purchaser becomes aware of any valid state statute prohibiting the making of the Offer or the acceptance of the Shares pursuant thereto, Purchaser shall make a good faith effort to comply with such statute or seek to have such statute declared inapplicable to the Offer. If, after such good faith effort, Purchaser cannot comply with such state statute, the Offer will not be made to (nor will tenders be accepted from or on behalf of) holders of the Shares in such state. In those jurisdictions where the blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of Purchaser by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdictions. If you wish to have us tender any or all of your Shares, please so instruct us by completing, executing and returning to us the instruction form set forth on the reverse side of this letter. An envelope to return your instructions to us is enclosed. If you authorize the tender of your Shares, all such Shares will be tendered unless otherwise specified on the reverse side of this letter. 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. 2 INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK of ACUSON CORPORATION by SIGMA ACQUISITION CORP. a wholly owned subsidiary of SIEMENS CORPORATION an indirect wholly owned subsidiary of SIEMENS AKTIENGESELLSCHAFT The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase dated October 5, 2000 and the related Letter of Transmittal in connection with the Offer by Sigma Acquisition Corp., a Delaware corporation, which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation, which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany, to purchase all outstanding shares of common stock, par value $0.0001 per share (the "Common Stock"), of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase shares of Series A Preferred Stock (the "Rights") issued pursuant to the Amended and Restated Rights Agreement (the "Rights Agreement"), dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), at $23.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). This will instruct you to tender to Purchaser the number of Shares indicated below (or if no number is indicated below, all Shares) 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:* ___________________________________________ Certificate Nos. (if available): ____________________________________________ Account No.: ________________________________________________________________ Dated: _______________________________________________________________ , 2000 SIGN HERE Signature(s): _______________________________________________________________ Please type or print address(es): ___________________________________________ Area Code and Telephone Number: ( )______ ______ ______ 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. 3 EX-99.(A)(7) 8 0008.txt SUMMARY NEWSPAPER ADVERTISEMENT Exhibit (a)(7) This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made solely by the Offer to Purchase, dated October 5, 2000, and the related Letter of Transmittal (and any amendments or supplements thereto) and is being made to all holders of Shares. Purchaser (as defined below) is not aware of any state where the making of the Offer is prohibited by any applicable law. If Purchaser becomes aware of any jurisdiction where the making of the Offer or the acceptance of Shares is not in compliance with applicable law, Purchaser will make a good faith effort to comply with such law. If, after such good faith effort, Purchaser cannot comply with such law, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the 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 shall be deemed to be made on behalf of Purchaser by Deutsche Bank Securities Inc., the Dealer Manager for the Offer, or one or more registered brokers or dealers licensed under the laws of such jurisdiction. Notice of Offer to Purchase for Cash All of the Outstanding Shares of Common Stock (Including the Associated Rights to Purchase Shares of Series A Preferred Stock) of Acuson Corporation at $23 Net Per Share in Cash by Sigma Acquisition Corp. a wholly owned subsidiary of Siemens Corporation an indirect wholly owned subsidiary of Siemens Aktiengesellschaft Sigma Acquisition Corp., a Delaware corporation ("Purchaser"), which is a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Parent"), which is an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany ("Siemens AG"), is offering to purchase all of the outstanding shares of common stock, par value $0.0001 per share (the "Common Stock"), of Acuson Corporation, a Delaware corporation (the "Company"), together with the associated rights to purchase shares of Series A Preferred Stock (the "Rights") issued pursuant to the Amended and Restated Rights Agreement, dated as of November 5, 1998, between the Company and Fleet National Bank (f/k/a BankBoston, N.A.), as amended (the Common Stock and the Rights together being referred to herein as the "Shares"), at a price of $23.00 per Share, net to the seller in cash (less any required withholding taxes), without interest, on the terms and subject to the onditions set forth in the Offer to Purchase, dated October 5, 2000 (the "Offer to Purchase"), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY, NOVEMBER 2, 2000, UNLESS THE OFFER IS EXTENDED. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (i) A NUMBER OF SHARES BEING VALIDLY TENDERED AND NOT WITHDRAWN ON THE APPLICABLE EXPIRATION DATE OF THE OFFER THAT, TOGETHER WITH ANY SHARES OWNED BY PARENT OR ANY OF ITS AFFILIATES (INCLUDING PURCHASER), REPRESENTS AT LEAST A MAJORITY OF THE TOTAL NUMBER OF (A) ALL OUTSTANDING SHARES PLUS (B) ALL SHARES ISSUABLE UPON EXERCISE OF OPTIONS AND OTHER SIMILAR RIGHTS THAT BY THEIR TERMS ARE OR WILL BE EXERCISABLE BEFORE DECEMBER 31, 2000 (OR, UNDER CERTAIN CIRCUMSTANCES DESCRIBED IN THE OFFER TO PURCHASE, MARCH 31, 2001) (THE "MINIMUM CONDITION") AND (ii) THE RECEIPT OF APPROVALS REQUIRED BY OR THE EXPIRATION OR TERMINATION OF THE APPLICABLE WAITING PERIODS UNDER UNITED STATES AND GERMAN ANTITRUST AND COMPETITION LAWS. THE OFFER IS ALSO SUBJECT TO THE SATISFACTION OR WAIVER OF CERTAIN OTHER CONDITIONS. SEE SECTIONS 1 AND 13 OF THE OFFER TO PURCHASE. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of September 26, 2000 (the "Merger Agreement"), by and among Parent, Purchaser and the Company. The purpose of the Offer is for Siemens AG, indirectly through Purchaser, to acquire a majority voting interest in the Company as the first step in a business combination. The Merger Agreement provides that, among other things, Purchaser will make the Offer and that as soon as practicable after completion of the Offer, receipt of any required approval by the Company's stockholders of the Merger Agreement and the satisfaction or waiver of the other conditions set forth in the Merger Agreement, Purchaser will be merged with and into the Company in accordance with the relevant provisions of the General Corporation Law of the State of Delaware (the "DGCL"), with the Company continuing as the surviving corporation (the "Merger"). At the effective time of the Merger (the "Effective Time"), each then outstanding Share not owned by Parent or any of its affiliates or held in treasury by the Company or any subsidiary of the Company, all of which will be canceled and retired and will cease to exist (other than Shares held by stockholders of the Company who properly exercise dissenters' rights under the applicable provisions of the DGCL), will be converted into the right to receive $23.00 in cash or any higher price which may be paid for Shares pursuant to the Offer, without interest (the "Merger Consideration"). The Board of Directors of the Company, at a meeting held on September 26, 2000, by unanimous vote determined that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company and the Company's stockholders, approved the Merger and the other transactions contemplated by the Merger Agreement and approved the Merger Agreement. The Board of Directors unanimously recommends that the Company's stockholders accept the Offer, tender their Shares in the Offer and, if required under the DGCL or the Company's Certificate of Incorporation or Bylaws, vote to adopt the Merger Agreement. Tendering stockholders who have Shares registered in their names and who tender directly to EquiServe Trust Company, N.A. (the "Depositary") will not be charged brokerage fees or commissions or, subject to Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such institution as to whether it charges any service fees. Parent or Purchaser will pay all charges and expenses of the Dealer Manager, the Depositary and Georgeson Shareholder Communications Inc., which is acting as the information agent for the Offer (the "Information Agent"), incurred in connection with the Offer. For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when Purchaser gives oral or written notice to the Depositary of Purchaser's acceptance for payment of such Shares pursuant to the Offer. On the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the purchase price with the Depositary, which will act as agent for tendering stockholders for the purpose of receiving payment from Purchaser and transmitting such payment to tendering stockholders. Under no circumstances will interest on the purchase price of Shares be paid by Purchaser because of any extension of the Offer or delay in making any payment. In all cases, payment for Shares tendered and accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (i) certificates for such Shares or timely confirmation of a book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility (as defined in the Offer to Purchase), pursuant to the procedures set forth in the Offer to Purchase, (ii) a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) with any required signature guarantees or, in the case of a book-entry transfer, an Agent's Message (as defined in the Offer to Purchase), and (iii) any other documents required by the Letter of Transmittal. Subject to the applicable rules and regulations of the Securities and Exchange Commission and to applicable law, Purchaser may, without the consent of the Company (and if requested in writing by the Company, will), (i) extend and re- extend the Offer on one or more occasions for such period as may be determined by Purchaser in its sole discretion (each such extension period not to exceed 10 business days at a time), if at the then scheduled Expiration Date (as defined below) any of the conditions to Purchaser's obligations to accept for payment and pay for Shares shall not be satisfied or waived and (ii) extend and re- extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission or the staff thereof applicable to the Offer. Purchaser also may extend the Offer on one occasion for an aggregate period of not more than 10 business days if the Minimum Condition has been satisfied but less than 90% of the total number of (a) all outstanding Shares plus (b) all Shares issuable upon exercise of options and other similar rights that by their terms are or will be exercisable before December 31, 2000 (or, under certain circumstances described in the Offer to Purchase, March 31, 2001), has been validly tendered and not properly withdrawn as of the Expiration Date. Any such extension will be followed by a public announcement thereof no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date; provided, however, that if Purchaser elects to extend the Offer pursuant to the preceding sentence, then all remaining conditions to the Offer will be deemed to be irrevocably waived except to the limited extent described in Section 13 of the Offer to Purchase. The term "Expiration Date" means 12:00 Midnight, New York City time, on Thursday, November 2, 2000, unless Purchaser, subject to the terms of the Merger Agreement, shall have extended the period of time for 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 the Purchaser shall expire. The Purchaser does not currently intend to make a subsequent offering period available following the Expiration Date (the "Subsequent Offering Period") pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), although it reserves the right to do so in its sole discretion. Subject to the terms of the Merger Agreement and applicable rules and regulations of the Securities and Exchange Commission, Purchaser expressly reserves the right, in its sole discretion, at any time or from time to time, to extend the offering period by giving oral or written notice of such extension to the Depositary. During any such extension of the offering period, 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. Subject to the applicable regulations of the Securities and Exchange Commission and the terms of the Merger Agreement, Purchaser also expressly reserves the right, in its sole discretion, at any time or from time to time, (i) to delay acceptance for payment of or payment for, any tendered Shares not theretofore accepted for payment or paid for, (ii) to amend the Offer on the failure of any of the conditions specified in the Merger Agreement and (iii) to waive any condition (other than the Minimum Condition) and to modify or change any other term or condition of the Offer, by giving oral or written notice of such delay, amendment, waiver, modification or change to the Depositary. Purchaser will make a public announcement of any such delay, amendment, waiver, modification or change. Unless previously approved by the Company in writing, no term or condition of the Offer may be modified or changed which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, limits the number of Shares sought in the Offer, changes the conditions to the Offer (other than conditions that are immaterial and administrative in nature) in a manner adverse to the holders of the Shares or imposes additional conditions to the Offer (other than conditions that are immaterial and administrative in nature). If Purchaser elects to provide a Subsequent Offering Period, it expressly reserves the right, in its sole discretion, at any time or from time to time, to extend the Subsequent Offering Period, not beyond a total of 20 business days, by giving oral or written notice of such extension to the Depositary. On the terms and subject to the conditions of the Offer, promptly after expiration of the Offer, Purchaser will accept for payment and pay for all Shares validly tendered during the offering period and not withdrawn pursuant to the Offer that Purchaser is permitted to accept and pay for under applicable law. Purchaser will immediately accept for payment and promptly pay for all Shares as they are tendered in any Subsequent Offering Period. Shares tendered in any Subsequent Offering Period and accepted for payment may not be withdrawn. Purchaser confirms that its reservation of the right to delay payment for Shares which it has accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which requires that a tender offeror pay the consideration offered or return the tendered securities promptly after the termination or withdrawal of a tender offer. Any decision to provide a Subsequent Offering Period will be disseminated in accordance with applicable rules, regulations and interpretations of the Securities and Exchange Commission. Purchaser will announce the decision to provide a Subsequent Offering Period and the approximate number and percentage of Shares deposited as of the expiration of the offering period no later than 9:00 a.m., New York City time, on the next business day following the expiration of the offering period, and such securities will be immediately accepted and promptly paid for. All conditions to the Offer must be satisfied or waived prior to the commencement of any Subsequent Offering Period. Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date and, unless theretofore accepted for payment pursuant to the Offer, also may be withdrawn at any time after December 3, 2000. Except as otherwise provided below and in Section 4 of the Offer to Purchase, tenders of Shares made pursuant to the Offer are irrevocable. For a withdrawal of Shares tendered pursuant to the Offer 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 the Offer to Purchase. Any notice of withdrawal must specify the name of the person having tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name in which the certificates representing such Shares are registered if different from that of the person who tendered the Shares. If certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such certificates, the serial numbers shown on such certificates must be submitted to the Depositary and, unless such Shares have been tendered for the account of an Eligible Institution (as defined in the Offer to Purchase), the signatures on the notice of withdrawal must be guaranteed by an Eligible Institution. If Shares have been delivered pursuant to the procedures for book-entry transfer set forth in Section 3 of the Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares and otherwise comply with the Book-Entry Transfer Facility's procedures. All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by Purchaser, in its sole discretion, which determination shall be final and binding. None of Siemens AG, Purchaser, Parent, 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 failure to give such notification. Withdrawals of tender for Shares may not be rescinded, and any Shares properly withdrawn will be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by following one of the procedures described in Section 3 of the Offer to Purchase at any time prior to the Expiration Date. The receipt of cash in exchange for Shares pursuant to the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local or foreign tax laws. Stockholders should consult with their own tax advisors as to the particular tax consequences of the Offer and the Merger to them, including the applicability and effect of the alternative minimum tax and any state, local or foreign income and other tax laws and of changes in such tax laws. For a more complete description of certain U.S. federal income tax consequences of the Offer and the Merger, see Section 5 of the Offer to Purchase. The information required to be disclosed by Paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference. The Company has provided to Purchaser its list of stockholders and security posit ion listing for the purpose of disseminating the Offer to holders of Shares. The Offer to Purchase, the related Letter of Transmittal and other related materials will be mailed to record holders of Shares and will be mailed to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of Shares. 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. Questions and requests for assistance and copies of the Offer to Purchase, the Letter of Transmittal and all other tender offer materials may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth below, and will be furnished promptly at Purchaser's expense. Purchaser will not pay any fees or commissions to any broker or dealer or any other person (other than the Dealer Manager and the Information Agent) for soliciting tenders of Shares pursuant to the Offer. The Information Agent for the Offer is: Georgeson Shareholder Communications Inc. 17 State Street, 10th Floor New York, New York 10004 Call Collect: (212) 440-9800 Call Toll Free: (800) 223-2064 The Dealer Manager for the Offer is: Deutsche Banc Alex. Brown Deutsche Bank Securities Inc. 130 Liberty Street, 33rd Floor New York, New York 10006 Call Toll Free: (877) 305-4920 October 5, 2000 EX-99.(D)(1) 9 0009.txt AGREEMENT AND PLAN OF MERGER EXHIBIT (d)(1) EXECUTION COPY ____________________________________________________ AGREEMENT AND PLAN OF MERGER by and among SIEMENS CORPORATION, SIGMA ACQUISITION CORP. and ACUSON CORPORATION dated as of September 26, 2000 ________________________________________________________ ARTICLE I THE OFFER............................................... 1 Section 1.1 The Offer.............................................. 1 Section 1.2 Company Actions........................................ 3 Section 1.3 Stockholder Lists...................................... 4 Section 1.4 Directors; Section 14(f)............................... 5 ARTICLE II THE MERGER.............................................. 6 Section 2.1 The Merger............................................. 6 Section 2.2 Effective Time of the Merger........................... 6 Section 2.3 Effects of the Merger.................................. 6 Section 2.4 Closing................................................ 6 ARTICLE III THE SURVIVING AND PARENT CORPORATIONS................... 6 Section 3.1 Certificate of Incorporation........................... 6 Section 3.2 Bylaws................................................. 7 Section 3.3 Directors.............................................. 7 Section 3.4 Officers............................................... 7 ARTICLE IV EFFECT OF THE MERGER ON THE STOCK OF THE CONSTITUENT CORPORATIONS; SURRENDER OF CERTIFICATES................. 7 Section 4.1 Conversion of Company Common Stock in the Merger....... 7 Section 4.2 Conversion of Subsidiary Shares........................ 7 Section 4.3 Surrender and Exchange of Certificates................. 8 Section 4.4 Tax Withholding........................................ 9 Section 4.5 Closing of the Company's Transfer Books................ 9 Section 4.6 Option Plans; Restricted Stock......................... 9 Section 4.7 Dissenting Shares...................................... 10 Section 4.8 Further Assurances..................................... 10 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......... 10 Section 5.1 Organization and Qualification......................... 11 Section 5.2 Capitalization......................................... 11 Section 5.3 Subsidiaries........................................... 12 Section 5.4 Authority; Non-Contravention; Approvals................ 13 Section 5.5 Reports and Financial Statements....................... 14 Section 5.6 Absence of Undisclosed Liabilities; Affiliate Transactions........................................... 15 Section 5.7 Absence of Certain Changes or Events................... 15 Section 5.8 Litigation............................................. 16 i Section 5.9 Information Supplied................................... 16 Section 5.10 No Violation of Law.................................... 16 Section 5.11 Compliance with Agreements............................. 17 Section 5.12 Taxes.................................................. 17 Section 5.13 Employee Benefit Plans; ERISA.......................... 19 Section 5.14 Labor Controversies.................................... 20 Section 5.15 Environmental Matters.................................. 20 Section 5.16 Title to Assets........................................ 21 Section 5.17 Intellectual Property; Software........................ 21 Section 5.18 Brokers and Finders.................................... 22 Section 5.19 Opinion of Company Financial Advisor................... 22 Section 5.20 Vote Required.......................................... 22 Section 5.21 Insurance.............................................. 23 Section 5.22 Contracts.............................................. 23 Section 5.23 Accounts Receivable.................................... 24 Section 5.24 Product Warranty....................................... 24 Section 5.25 Product Liability...................................... 24 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY. 24 Section 6.1 Organization and Qualification......................... 24 Section 6.2 Authority; Non-Contravention; Approvals................ 24 Section 6.3 Information Supplied................................... 25 Section 6.4 Financing.............................................. 25 Section 6.5 Subsidiary............................................. 26 Section 6.6 Brokers and Finders.................................... 26 ARTICLE VII COVENANTS OF THE PARTIES................................ 26 Section 7.1 Mutual Covenants....................................... 26 Section 7.2 Conduct of the Company's Business...................... 28 ARTICLE VIII ADDITIONAL AGREEMENTS OF THE PARTIES.................... 30 Section 8.1 Access to Information.................................. 30 Section 8.2 Acquisition Proposals.................................. 31 Section 8.3 Expenses and Fees...................................... 32 Section 8.4 Directors' and Officers' Indemnification............... 32 Section 8.5 Employee Benefits...................................... 33 Section 8.6 Litigation............................................. 34 ii ARTICLE IX CONDITIONS.............................................. 34 Section 9.1 Conditions to Each Party's Obligation to Effect the Merger............................................. 34 ARTICLE X TERMINATION, AMENDMENT AND WAIVER....................... 35 Section 10.1 Termination............................................ 35 Section 10.2 Effect of Termination.................................. 37 Section 10.3 Amendment.............................................. 37 Section 10.4 Extension; Waiver...................................... 38 ARTICLE XI GENERAL PROVISIONS...................................... 38 Section 11.1 Non-Survival of Representations and Warranties......... 38 Section 11.2 Notices................................................ 38 Section 11.4 Third Party Beneficiaries.............................. 39 Section 11.5 Severability........................................... 39 Section 11.6 Assignment............................................. 40 Section 11.7 Enforcement............................................ 40 Section 11.8 Counterparts........................................... 40 Section 11.9 Entire Agreement....................................... 40 iii Acquisition Proposal.............. 31 - -------------------- Agreement......................... 1 - --------- Antitrust Division................ 26 - ------------------ Closing........................... 6 - ------- Closing Date...................... 6 - ------------ Code.............................. 9 - ---- Common Stock Price................ 1 - ------------------ Company........................... 1 - ------- Company Certificates.............. 8 - -------------------- Company Common Stock.............. 1 - -------------------- Company Disclosure Schedule....... 10 - --------------------------- Company Financial Advisor......... 4 - ------------------------- Company Financial Statements...... 14 - ---------------------------- Company Intellectual Property Rights........................... 21 - ------- Company Material Adverse Effect... 11 - ------------------------------- Company Permits................... 17 - ---------------------------------- Company Plan...................... 20 - ------------ Company Preferred Stock........... 11 - ----------------------- Company Regulatory Approvals...... 14 - ---------------------------- Company Rights.................... 11 - -------------- Company Rights Agreement.......... 11 - ------------------------ Company SEC Reports............... 14 - ------------------- Company Stock Plans............... 9 - ------------------- Company Stockholders' Approval.... 23 - ------------------------------ Company Subsidiary................ 12 - ------------------ Confidentiality Agreement......... 30 - ------------------------- Contract.......................... 23 - -------- DGCL.............................. 3 - ---- Dissenting Shares................. 10 - ----------------- Dissenting Stockholder............ 10 - ---------------------- Effective Time.................... 6 - -------------- environment....................... 21 - ----------- Environmental Event............... 20 - ------------------- Environmental Law................. 20 - ----------------- ERISA............................. 20 - ----- ERISA Affiliate................... 20 - --------------- ESPP.............................. 10 - ---- ESPP Date......................... 10 - --------- Exchange Act...................... 1 - ------------ Extended Outside Date............. 36 - --------------------- FTC............................... 26 - --- GAAP.............................. 14 - ---- Governmental Authority............ 14 - ---------------------- HSR Act........................... 13 - ------- Independent Directors............. 5 - --------------------- Initial Expiration Date........... 2 - ----------------------- IRS............................... 17 - --- Liens............................. 12 - ----- Merger............................ 1 - ------ Merger Filing..................... 6 - ------------- Minimum Condition................. 1 - ----------------- Offer............................. 1 - ----- Offer Documents................... 3 - --------------- Option Payment.................... 9 - -------------- Options........................... 9 - ------- Outside Date...................... 36 - ------------ Parent............................ 1 - ------ Parent Representatives............ 30 - ---------------------- Parent Required Statutory 25 Approvals........................ - ---------- Paying Agent...................... 8 - ------------ Pension Plan...................... 20 - ------------ Permitted Lien.................... 15 - -------------- Proxy Statement................... 27 - --------------- release........................... 21 - ------- Schedule 14D-9.................... 3 - -------------- Schedule TO....................... 2 - ----------- SEC............................... 2 - --- Securities Act.................... 12 - -------------- Stock Rights...................... 11 - ------------ Stockholders Meeting.............. 27 - -------------------- subsidiary........................ 12 - ---------- Subsidiary........................ 1 - ---------- Subsidiary Common Stock........... 7 - ----------------------- Superior Proposal................. 32 - ----------------- Surviving Corporation............. 6 - --------------------- Tax Return........................ 18 - ---------- Taxes............................. 18 - ----- Violation......................... 17 - --------- Welfare Plan...................... 20 - ------------ AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER, dated as of September 26, 2000 (this "Agreement"), is made and entered into by and among Siemens Corporation, a - ---------- Delaware corporation ("Parent"), Sigma Acquisition Corp., a Delaware corporation ------ and a wholly-owned subsidiary of Parent ("Subsidiary"), and Acuson Corporation, ---------- a Delaware corporation (the "Company"). ------- BACKGROUND WHEREAS, the Boards of Directors of Parent, Subsidiary and the Company have approved the acquisition of the Company by Parent upon the terms and subject to the conditions set forth in this Agreement; WHEREAS, in furtherance of such acquisition, Parent, Subsidiary and the Company have agreed that, upon the terms and subject to the conditions set forth in this Agreement, Subsidiary shall commence an offer (as amended or supplemented in accordance with this Agreement, the "Offer") to purchase for ----- cash all of the issued and outstanding shares of common stock, par value $.0001 per share, of the Company (the "Company Common Stock," which term as used herein -------------------- shall include the associated Company Rights (as defined in Section 5.2(a)), unless the context otherwise requires), at a price per share of $23.00, net to the seller in cash (such price, or such higher price per share as may be paid in the Offer, the "Common Stock Price"); ------------------ WHEREAS, the Boards of Directors of Parent, Subsidiary and the Company have each approved the merger of Subsidiary with and into the Company (the "Merger"), ------ upon the terms and subject to the conditions set forth in this Agreement, whereby each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (as defined in Section 2.2), other than the shares of Company Common Stock owned directly or indirectly by Parent, Subsidiary or the Company and Dissenting Shares (as defined in Section 4.7), will be converted into the right to receive the Common Stock Price; WHEREAS, the Board of Directors of the Company has resolved to recommend that the holders of shares of Company Common Stock tender their shares pursuant to the Offer and has approved, adopted and declared advisable this Agreement and the Merger; and WHEREAS, Parent, Subsidiary and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger; NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound, agree as follows: ARTICLE I THE OFFER Section 1.1 The Offer. --------- (a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 10.1 and so long as none of the events or circumstances set forth in Annex A hereto shall have occurred and be continuing, not later than the seventh business day from the date of public announcement of the execution of this Agreement (counting the business day on which such announcement is made), Parent shall cause Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer at a price equal to the ------------ Common Stock Price for each share of Company Common Stock. The obligations of Subsidiary to consummate the Offer, and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer shall be subject solely to those conditions set forth in Annex A. It is agreed that the conditions to the Offer set forth in ------- Annex A are for the benefit of Subsidiary and may be asserted by Subsidiary and - ------- Subsidiary expressly reserves the right, in its sole discretion, to waive any such condition; provided, that without the prior written consent of the Company, Subsidiary shall not waive the Minimum Condition (as defined in Annex A). The ------- initial expiration date of the Offer (the "Initial Expiration Date") shall be ----------------------- the 20th business day following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer. (b) Subsidiary expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer; provided, that without the prior written consent of the Company, no modification or change may be made which (i) decreases the Common Stock Price (except as permitted by this Agreement); (ii) changes the form of consideration payable in the Offer; (iii) changes the Minimum Condition; (iv) limits the number of shares of Company Common Stock sought pursuant to the Offer; (v) changes the conditions to the Offer (other than conditions that are immaterial and administrative in nature) in a manner adverse to the holders of the Company Common Stock; or (vi) imposes additional conditions to the Offer other than conditions that are immaterial and administrative in nature. Notwithstanding the foregoing, Subsidiary may, without the consent of the Company (and, in the case of clauses (i) and (ii) below, Subsidiary shall if the Company requests Subsidiary in writing to do so), (i) extend and re- extend the Offer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed 10 business days at a time), if at the then-scheduled expiration date of the Offer any of the conditions to Subsidiary's obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied or waived and (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. Subsidiary --- also may extend the Offer on one occasion for an aggregate period of not more than 10 business days if the Minimum Condition has been satisfied but less than 90% of the sum of (y) the total number of shares of outstanding Company Common Stock plus (z) the total number of shares of Company Common Stock issuable on or prior to the Outside Date (or the Extended Outside Date if the Outside Date has been extended in accordance with Section 10.1(b)(iii)) upon the exercise of any outstanding Options, warrants, conversion privileges or similar rights with respect to Company Common Stock that are currently vested or that will vest on or prior to the Outside Date or Extended Outside Date, as the case may be, has been validly tendered and not properly withdrawn as of the Initial Expiration Date; provided, however, that if Subsidiary elects to extend the Offer pursuant to this sentence, then all conditions to the Offer set forth in Annex A shall be ------- deemed to be irrevocably waived except to the extent that a breach by the Company of any covenant in this Agreement or a failure of a representation or warranty of the Company to be true and correct as of the date of this Agreement has occurred in either case because of one or more willful and intentional acts or omissions by the Company following the date of Subsidiary's election to extend the Offer pursuant to this sentence, which would cause any of the conditions to the Offer set forth in clauses (c)(i) and (c)(ii) of Annex A not ------- to be satisfied. Subject to the terms and the conditions of the Offer and this Agreement, as soon as practicable after expiration of the Offer, Subsidiary shall accept for payment and pay for, and Parent shall cause Subsidiary to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Notwithstanding the foregoing, Subsidiary may in its sole discretion elect to provide for a subsequent offering period pursuant to, and on the terms required by, Rule 14d-11 under the Exchange Act. (c) On the date of commencement of the Offer, Parent and Subsidiary shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto and including all exhibits thereto, the "Schedule TO") which will comply in all ----------- 2 material respects with the provisions of the Exchange Act and the rules and regulations thereunder and other applicable United States federal securities laws, and will contain the offer to purchase relating to the Offer and forms of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). Parent --------------- shall provide the Company and its counsel a reasonable opportunity to review and comment upon the initial Offer Documents prior to the filing thereof with the SEC. To the extent reasonably practicable under the circumstances, the Company and its counsel shall be given a reasonable opportunity to review any amendments and supplements to the initial Offer Documents prior to their filing with the SEC or dissemination to the Company's stockholders. Parent shall advise the Company and its counsel in writing of any comments (and provide a copy of any comments furnished in writing) that Subsidiary, Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Each of the Company, Parent and Subsidiary shall promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respects and Parent and Subsidiary further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the stockholders of the Company, in each case, as and to the extent required by applicable United States federal securities laws. Section 1.2 Company Actions. --------------- (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) its Board of Directors, at a meeting duly called and held on September 26, 2000, has duly and unanimously adopted resolutions declaring the advisability of this Agreement and approving the Offer, the Merger, this Agreement and the transactions contemplated hereby, determining that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's Stockholders accept the Offer and tender their respective shares of Company Common Stock to Subsidiary, and, if required, adopt this Agreement; (ii) the Company has taken all necessary action to ensure that the restrictions contained in Section 203 of the Delaware General Corporation Law (the "DGCL") applicable to an "interested ---- stockholder" or a "business combination" (as defined in Section 203 of the DGCL) will not apply to the Offer, the Merger, this Agreement or the transactions contemplated hereby; and (iii) the Company has taken all necessary action to render the Company Rights Agreement (as defined in Section 5.2) inapplicable to the execution of this Agreement, the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement such that none of the execution of this Agreement or the consummation of the Offer, the Merger or the other transactions contemplated by this Agreement will result in the grant of any rights to any person under the Company Rights Agreement or enable or require any outstanding rights thereunder to be exercised, distributed or triggered. Subject to Sections 7.1(d) and 8.2(b), the Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Company's Board of Directors described in this Section 1.2(a). The Company shall use reasonable efforts to cause all of its directors and executive officers to vote (in their capacity as stockholders) in favor of the Merger. As of the date of this Agreement, the Company has been advised by each of the directors and executive officers listed on Schedule 1.2 that such person intends to tender all shares of ------------ Company Common Stock owned by such person pursuant to the Offer. (b) The Company shall file with the SEC on the date of the commencement of the Offer a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-9") which shall comply in all material respects with the -------------- provisions of the Exchange Act and the rules and regulations thereunder and other applicable United States federal securities laws, and, subject to Sections 7.1(d) and 8.2(b), will contain the recommendations of the Company's Board of Directors referred to in subsection (a) above, 3 and shall disseminate the Schedule 14D-9 to the Company's stockholders. The Company shall deliver the proposed forms of the Schedule 14D-9 to Parent and its counsel as far in advance of the commencement of the Offer as is reasonably practicable under the circumstances for review and comment by Parent and its counsel. Parent and its counsel shall be given a reasonable opportunity to review and comment on any amendments and supplements to the Schedule 14D-9 prior to their filing with the SEC or dissemination to the Company's stockholders; provided, however, that, if the Company shall have complied in all material respects with its obligations under Section 8.2. of this Agreement, neither Parent nor its counsel need be given an opportunity to review and comment on any amendment or supplement to the Schedule 14D-9 prior to its being filed with the SEC or disseminated to the Company's stockholders if the amendment or supplement relates to any of the matters referred to in Section 8.2(b) (and such filing or dissemination will not be a breach of Section 8.2(b)), but to the extent reasonably practicable under the circumstances the Company will furnish Parent with a copy of the amendment or supplement a reasonable period prior to filing or dissemination. The Company shall provide Parent and its counsel in writing any comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt thereof. Each of the Company, Parent and Subsidiary shall promptly correct any information provided by it for use in the Schedule 14D-9 that shall have become false or misleading in any material respect and the Company further agrees to take all steps necessary to cause such Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws. (c) UBS Warburg LLC (the "Company Financial Advisor") has rendered to the ------------------------- Company's Board of Directors its opinion to the effect that, as of the date of this Agreement, the Common Stock Price to be received pursuant to the Offer and the Merger by the holders of Company Common Stock is fair, from a financial point of view, to such holders (other than Parent and its affiliates). The Company has been informed that the Company Financial Advisor will permit the inclusion of the opinion in its entirety and, subject to prior review and consent by the Company Financial Advisor, a reference to the opinion in the Schedule 14D-9 and the Proxy Statement (as defined in Section 7.1(d)). Section 1.3 Stockholder Lists. In connection with the Offer, the Company ----------------- shall promptly furnish to, or cause to be furnished to, Parent and Subsidiary mailing labels, security position listings, a list of non-objecting beneficial owners and any available listing or computer file containing the names and addresses of the record holders of the shares of Company Common Stock as of a recent date and of those persons becoming record holders subsequent to such date (to the extent available), together with all other relevant information in the Company's possession or control regarding the beneficial owners of shares of Company Common Stock and shall furnish Parent and Subsidiary with such additional information and assistance as Parent, Subsidiary or their respective agents may reasonably request in communicating the Offer to the record and beneficial holders of shares of Company Common Stock. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger (including, without limitation, the solicitation of stockholder votes), Parent and Subsidiary shall, and shall cause each of their agents to, hold the information contained in any of such labels and lists in confidence, use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, will, upon request, deliver, and will use their reasonable efforts to cause their agents to deliver to the Company or destroy, all copies of such information or extracts therefrom then in their possession or under their control. 4 Section 1.4 Directors; Section 14(f). ------------------------ (a) Effective upon the acceptance for payment of and payment for shares of Company Common Stock by Subsidiary or any of its affiliates pursuant to the Offer, Parent shall be entitled to designate such number of directors of the Board of Directors as determined by Parent, rounded up to the next whole number, for election or appointment to the Board of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors of the Company (giving effect to the increase in the size of such Board pursuant to this Section 1.4) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Subsidiary and Parent (including shares of Company Common Stock so accepted for payment and purchased) bears to the number of shares of Company Common Stock then outstanding. In furtherance thereof, concurrently with such acceptance for payment and payment for such shares of Company Common Stock the Company shall, upon request of Parent or Subsidiary and in compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, promptly take all action necessary to increase the size of its Board of Directors by such number as is necessary to enable such designees of Parent and Subsidiary to be so elected or appointed to the Company's Board of Directors, and, subject to applicable law, the Company shall cause such designees of Parent and Subsidiary to be so elected or appointed. At such time, the Company shall, if requested by Parent or Subsidiary and subject to applicable law, cause persons designated by Parent and Subsidiary to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors; (ii) each board of directors (or similar body) of each subsidiary of the Company; and (iii) each committee (or similar body) of each such board. Subject to applicable law, the Company shall promptly take all action reasonably requested by Parent in order to effect any such election or appointment, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule 14(f)-1 promulgated thereunder as part of the Schedule 14D-9 initially filed with the SEC and distributed to the stockholders of the Company (or, at Parent's request, furnishing such information to Parent for inclusion in the Offer Documents initially filed with the SEC and distributed to the stockholders of the Company) as is necessary to enable Subsidiary's designees to be elected to the Company's Board of Directors. (b) Notwithstanding the foregoing, the Company shall use its best efforts to ensure that, if Parent's and Subsidiary's designees are elected to the Board of Directors of the Company, such Board of Directors shall have, at all times prior to the Effective Time (as defined in Section 2.2 hereof), at least two directors who are directors on the date of this Agreement and who are not officers or affiliates of the Company (it being understood that for purposes of this sentence, a director of the Company shall not be deemed an affiliate of the Company solely as a result of his status as a director of the Company), Parent or any of their respective subsidiaries (the "Independent Directors"); and --------------------- provided further, that, (i) if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director may designate a person to fill such vacancy who is not an officer, employee or affiliate of the Company, Parent, or any of their respective subsidiaries and such person shall be deemed to be an Independent Director for purposes of this Agreement; or (ii) if no Independent Directors then remain, the other directors may designate two persons to fill such vacancies who shall not be officers or affiliates of the Company, Parent or any of their respective subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. (c) Prior to the Effective Time and from and after the time that Parent's and Subsidiary's designees constitute a majority of the Company's Board of Directors, if applicable, (i) any amendment or any termination of this Agreement by the Company, (ii) any extension of time for performance of any of the obligations of Parent or Subsidiary hereunder for which the Company's consent or approval is required, and any waiver by the Company of any condition, (iii) any amendment to the Company's 5 Certificate of Incorporation or Bylaws, (iv) any waiver of compliance with any covenant of Parent or Subsidiary or any condition to any obligation of the Company or of any of the Company's rights under this Agreement, and (v) any amendment or withdrawal by the Company's Board of Directors of its recommendation of the Merger pursuant to Section 7.1(d) may be effected only by the action of a majority of the Independent Directors, which action shall be deemed to constitute the action of the full Board of Directors of the Company (and any committee specifically designated by the Board of Directors of the Company) to approve the actions contemplated hereby and no other action on the part of the Company, including any action by any other director of the Company shall be required for such authorization; provided, that, if there shall be no Independent Directors, such actions may be effected by majority vote of the entire Board of Directors of the Company. ARTICLE II THE MERGER Section 2.1 The Merger. Subject to the terms and conditions of this ---------- Agreement, at the Effective Time (as defined in Section 2.2), in accordance with this Agreement and the DGCL, Subsidiary shall be merged with and into the Company and the separate existence of Subsidiary shall thereupon cease. The Company in its capacity as the surviving corporation in the Merger is sometimes referred to in this Agreement as the "Surviving Corporation." --------------------- Section 2.2 Effective Time of the Merger. The Merger shall become effective ---------------------------- (such time, the "Effective Time") upon the filing of a certificate of merger (in -------------- such form as required by and executed in accordance with the relevant provisions of the DGCL) with the Secretary of State of the State of Delaware in accordance with the DGCL (the "Merger Filing"). The Merger Filing shall be made ------------- simultaneously with or as soon as practicable following the Closing (as defined in Section 2.4). Section 2.3 Effects of the Merger. The Merger shall have the effects set --------------------- forth in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided in this Agreement, all the property, rights, privileges, powers and franchises, and all and every other interest, of Subsidiary and the Company shall vest in the Surviving Corporation, and all debts, liabilities and duties of Subsidiary and the Company shall become the debts, liabilities and duties of the Surviving Corporation. Section 2.4 Closing. Subject to the satisfaction or waiver of the ------- conditions to the obligations of the parties to effect the Merger set forth herein, the consummation of the Merger (the "Closing") will take place as ------- promptly as practicable, but in no event later than 10:00 a.m. on the second business day following the satisfaction or waiver of all the conditions (other than conditions which, by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions) to the obligations of the parties to effect the Merger set forth herein (the "Closing Date"), at the ------------ offices of Clifford Chance Rogers & Wells LLP, 200 Park Avenue, New York, New York, unless another time, date or place is agreed to by the parties hereto in writing. ARTICLE III THE SURVIVING AND PARENT CORPORATIONS Section 3.1 Certificate of Incorporation. The Certificate of Incorporation ---------------------------- of the Company as in effect immediately prior to the Effective Time shall be amended in the Merger to be identical to the Certificate of Incorporation of Subsidiary as in effect immediately prior to the Effective Time (except that such Certificate of Incorporation shall be amended to provide that the name of the Surviving Corporation shall be the name of the Company) and, as so amended, shall be the Certificate of Incorporation of the Surviving Corporation 6 after the Effective Time until thereafter amended in accordance with its terms and the DGCL. Section 3.2 Bylaws. The Bylaws of Subsidiary as in effect immediately prior ------ to the Effective Time shall be the Bylaws of the Surviving Corporation after the Effective Time and (subject to Section 8.4(a) hereof) thereafter may be amended in accordance with their terms and as provided by the Certificate of Incorporation of the Surviving Corporation and the DGCL. Section 3.3 Directors. From and after the Effective Time, the directors of --------- the Surviving Corporation shall be those individuals appointed by Parent in its capacity as sole stockholder of the Surviving Corporation and such directors shall serve in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal. Section 3.4 Officers. From and after the Effective Time, the officers of -------- the Surviving Corporation shall be those individuals appointed by Parent in its capacity as sole stockholder of the Surviving Corporation and such officers shall serve in accordance with the Bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal. ARTICLE IV EFFECT OF THE MERGER ON THE STOCK OF THE CONSTITUENT CORPORATIONS; SURRENDER OF CERTIFICATES Section 4.1 Conversion of Company Common Stock in the Merger. At the ------------------------------------------------ Effective Time, by virtue of the Merger and without any action on the part of any holder of any capital stock of Parent, Subsidiary or the Company: (a) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares canceled pursuant to Section 4.1(b) and any Dissenting Shares (as defined in Section 4.7)) shall be converted into the right to receive the Common Stock Price, payable to the holder thereof, in each case without interest, less any required withholding taxes, upon surrender of the certificate formerly representing such share of the Company Common Stock and such other documents as reasonably may be required in accordance with Section 4.3. All such shares of Company Common Stock, when so converted, no longer shall be outstanding and automatically shall be cancelled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Common Stock Price per share therefor, without interest, upon the surrender of such certificate in accordance with Section 4.3 or to perfect any rights of appraisal as a holder of Dissenting Shares that such holder may have pursuant to the DGCL; and (b) each share of capital stock of the Company, if any, owned by Parent or Subsidiary or held in treasury by the Company or any subsidiary of the Company immediately prior to the Effective Time automatically shall be canceled and retired and shall cease to exist and no cash or other consideration shall be delivered or deliverable in exchange therefor. Section 4.2 Conversion of Subsidiary Shares. At the Effective Time, by ------------------------------- virtue of the Merger and without any action on the part of Parent as the sole stockholder of Subsidiary, each issued and outstanding share of common stock, par value $.0001 per share, of Subsidiary ("Subsidiary Common Stock") that is ----------------------- 7 issued and outstanding prior to the Effective Time shall be converted into and become one fully paid and nonassessable share of common stock, par value $.0001 per share, of the Surviving Corporation. Section 4.3 Surrender and Exchange of Certificates. -------------------------------------- (a) Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as paying agent in the Merger (the "Paying Agent"), and prior to the Effective Time, Parent shall ------------ deposit, or cause the Surviving Corporation to deposit with the Paying Agent, cash in the amount necessary for the payment of the aggregate merger consideration as provided in Section 4.1 upon surrender of certificates formerly representing shares of Company Common Stock in the manner provided in Section 4.3(b). Funds made available to the Paying Agent shall be invested by the Paying Agent as directed by Parent (it being understood that any and all interest or income earned on funds deposited with the Paying Agent pursuant to this Agreement shall be turned over to Parent). (b) Promptly after the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") whose shares were converted -------------------- into the right to receive the Common Stock Price pursuant to Section 4.1 (i) a letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon actual delivery of the Company Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent may reasonably specify, and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the Common Stock Price. Upon surrender of Company Certificates for cancellation to the Paying Agent, together with a duly executed letter of transmittal and such other documents as the Paying Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor the Common Stock Price for each share of Company Common Stock formerly represented thereby, in accordance with Section 4.1(a), and the Company Certificates so surrendered shall be canceled. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, a check representing the proper amount of merger consideration may be issued to a transferee if the Company Certificate representing such shares of Company Common Stock is presented to the Paying Agent accompanied by all documents and endorsements required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as provided in this Section 4.3, each Company Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Common Stock Price for each share of Company Common Stock represented thereby. No interest will be paid or accrue on any amounts payable upon surrender of any Company Certificate. (c) Promptly following the date which is six months after the Effective Time, the Paying Agent shall deliver to Parent all cash and any documents in its possession relating to the transactions described in this Agreement, and the Paying Agent's duties shall terminate. Thereafter, each holder of a Company Certificate may surrender such Company Certificate to the Surviving Corporation or Parent and (subject to applicable abandoned property, escheat or other similar laws) receive in exchange therefor the Common Stock Price, payable upon due surrender of their Company Certificates without any interest thereon. Notwithstanding the foregoing, none of the Paying Agent, Parent, Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of shares of Company Common Stock for any amounts properly delivered to a public official pursuant to any applicable abandoned property, escheat or other similar laws. (d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Company Certificate the Common 8 Stock Price deliverable in respect thereof determined in accordance with this Article IV; provided, however, that Parent or the Paying Agent may, in its discretion, require the delivery of a reasonable indemnity or bond against any claim that may be made against the Surviving Corporation with respect to such Company Certificate or ownership thereof. Section 4.4 Tax Withholding. Each of Parent and Surviving Corporation shall --------------- be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any former holder of shares of Company Common Stock such amounts as Parent or Surviving Corporation is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any other provision of federal, state, ---- local or foreign tax law. To the extent that amounts are so withheld by Parent or Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the former holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent. Section 4.5 Closing of the Company's Transfer Books. At and after the --------------------------------------- Effective Time, holders of Company Certificates shall cease to have any rights as stockholders of the Company, except for the right to receive the Common Stock Price pursuant to Section 4.1, without interest. At the Effective Time, the stock transfer books of the Company shall be closed and no transfer of shares of Company Common Stock which were outstanding immediately prior to the Effective Time shall thereafter be made. If, after the Effective Time, subject to the terms and conditions of this Agreement, Company Certificates formerly representing shares of Company Common Stock are presented to the Surviving Corporation, they shall be canceled and exchanged for the Common Stock Price in accordance with this Article IV. Section 4.6 Option Plans; Restricted Stock. ------------------------------ (a) As of the Effective Time, each of the then outstanding stock options to purchase Company Common Stock (the "Options") granted under any stock option or ------- compensation plan or arrangement of the Company (the "Company Stock Plans"), ------------------- whether or not then vested or exercisable, shall automatically be cancelled, and each holder of any Option thereafter shall be entitled (subject to the provisions set forth in this Section 4.6(a)) to be paid by the Surviving Corporation with respect to each share subject to the Option an amount in cash (subject to any applicable withholding taxes) equal to the excess, if any, of the Common Stock Price over the applicable exercise price of such Option (the "Option Payment"). The Surviving Corporation shall make each Option Payment to -------------- the Option holder as of the date on which the applicable number of shares of Common Stock subject to such Option would have otherwise vested, subject to the conditions for vesting contained in the applicable Option award, notwithstanding the cancellation of such Option. Notwithstanding the foregoing, the Surviving Corporation shall make such Option Payment at the Effective Time with respect to any outstanding and fully vested Options as of such date. Prior to the Effective Time, the Company will use its reasonable best efforts to obtain all consents and make all amendments, if any, to the terms of the Company Stock Plans that are necessary to give effect to the provisions of this Section 4.6(a). (b) Upon the consummation of the Merger, each holder of a restricted share of Company Common Stock outstanding at the Effective Time shall be entitled to receive the Common Stock Price payable with respect to such restricted share in accordance with the restricted stock agreement or other agreement applicable to such restricted share. The Surviving Corporation shall make such payment to the holder, subject to the conditions for vesting contained in the applicable restricted stock or other agreement, on the date on which the restricted share was to have vested. (c) The Company shall take all actions as may be necessary to terminate, as of the Closing Date, any long-term incentive plan, (to the extent permitted) any employee stock purchase plan or any other similar equity based plan or portion of such plan providing for equity-based compensation. Without 9 limiting the generality of the foregoing, as of a date selected by Parent (which date shall be the last day of a regular payroll period of the Company) (the "ESPP Date"), all offering and purchase periods under way under the Company's --------- Employee Stock Purchase Plan (the "ESPP") shall be terminated and no new ---- offering or purchasing periods shall be commenced. The rights of participants in the ESPP with respect to any such offering or purchase periods shall be determined by treating the ESPP Date as the last day of such offering and purchase periods and by making such other pro-rata adjustments as may be necessary to reflect the shortened offering and purchase periods but otherwise treating such shortened offering and purchase periods as a fully effective and completed offering and purchase periods for all purposes under such Plan. The Company shall take all actions as may be necessary in order to freeze the rights of the participants in the ESPP, effective as of the date of this Agreement, to existing participants and (to the extent permissible under the ESPP) existing participation levels. Section 4.7 Dissenting Shares. ----------------- (a) Notwithstanding any provision of this Agreement to the contrary, any issued and outstanding shares of Company Common Stock ("Dissenting Shares") held ----------------- by a Dissenting Stockholder (as defined below) shall not be converted into the Common Stock Price but shall become the right to receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to the DGCL; provided, however, that each share of Company Common Stock outstanding immediately prior to the Effective Time and held by a Dissenting Stockholder who, after the Effective Time, withdraws his demand or fails to perfect or otherwise loses his right of appraisal, pursuant to the DGCL, shall be deemed to be converted as of the Effective Time into the right to receive the Common Stock Price, without interest. As used in this Agreement, the term "Dissenting ---------- Stockholder" means any record holder or beneficial owner of shares of Company - ------------ Common Stock who does not vote for the Merger and complies with all provisions of the DGCL (including all provisions of Section 262 of the DGCL) concerning the right of holders of Company Common Stock to dissent from the Merger and obtain fair value for their shares. (b) The Company shall give Parent (i) prompt notice of any demands for appraisal pursuant to the applicable provisions of the DGCL received by the Company, withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall not, except with the prior written consent of Parent, make any payment with respect to any such demands for appraisal, or settle, or offer to settle, or otherwise negotiate any such demands. Section 4.8 Further Assurances. At and after the Effective Time, the ------------------ officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the Company or Subsidiary, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Subsidiary, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger. ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to Parent and Subsidiary that, except as set forth in the disclosure schedule delivered by the Company to Parent and dated on the date of this Agreement (the "Company Disclosure Schedule"): --------------------------- 10 Section 5.1 Organization and Qualification. The Company is a corporation ------------------------------ duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, license, use, lease and operate its assets and properties and to carry on its business as it is now being conducted. The Company is qualified to transact business and is in good standing (with respect to jurisdictions that recognize such concept) in each jurisdiction in which the properties owned, license, used, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified, would not have a Company Material Adverse Effect. As used in this Agreement, a "Company Material Adverse Effect" means a material adverse effect on the ------------------------------- business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole. The Company has heretofore made available to Parent and Subsidiary complete and correct copies of the Certificate of Incorporation, Bylaws and minute books of the Company as in effect on the date of this Agreement. Section 5.2 Capitalization. -------------- (a) The authorized capital stock of the Company consists solely of 50,000,000 shares of Company Common Stock and 10,000,000 shares of preferred stock, par value $.0001 per share ("Company Preferred Stock"), of which ----------------------- 1,500,000 shares have been designated as Series A Preferred Stock. As of the close of business on September 22, 2000, (i) 27,753,671 shares of Company Common Stock were issued and outstanding (each, together with a preferred stock purchase right (the "Company Rights") issued pursuant to the Amended and -------------- Restated Rights Agreement dated as of June 8, 1998, by and between the Company and Bank Boston, N.A., as rights agent (the "Company Rights Agreement"), all of ------------------------ which were duly and validly issued and are fully paid, nonassessable and free of preemptive rights; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) no shares of Company Common Stock or Company Preferred Stock were held in the treasury of the Company; and (iv) 7,580,883 shares of Company Common Stock were reserved for issuance upon exercise, conversion or exchange of securities (the "Stock Rights") issued and outstanding pursuant to the Company ------------ Stock Plans. Since the close of business on September 22, 2000, except as permitted by this Agreement, no shares of capital stock of the Company have been issued except in connection with exercise, exchange or conversion of the outstanding Stock Rights. Section 5.2 of the Company Disclosure Schedule ---------------------------------------------- completely and accurately sets forth as of the date of this Agreement (i) the name and, for those Company Stock Plans not filed with the SEC, principal features of each Company Stock Plan and each restricted stock, phantom stock and other equity-based compensation plan of the Company; (ii) the names of each holder of Options, restricted stock or other rights awarded or held pursuant to any plan described in clause (i); and (iii) for each holder described in clause (ii), the number of shares issuable upon exercise of the holder's Options, the number of shares of restricted stock held, the other Stock Rights held, and in each such instance the applicable exercise price, vesting schedule, restrictions and other equivalent provisions, including any acceleration of vesting, lapse of restriction or other change that will or may be triggered by the Merger or the occurrence of any other event contemplated by this Agreement. (b) No bonds, debentures, notes or other indebtedness of the Company having the right to vote on any matters on which stockholders of the Company may vote are authorized, issued or outstanding. (c) As of the date of this Agreement, there are no outstanding subscriptions, options, calls, contracts, scrip, commitments, understandings, restrictions, arrangements, rights, or warrants, stock appreciation or other rights (contingent or other) including phantom stock rights or preemptive rights, or rights of conversion or exchange under any outstanding security, instrument or other agreement, obligating the Company or any subsidiary of the Company to issue, deliver or sell, redeem or repurchase, or cause to be issued, delivered or sold or repurchased, additional shares of the capital stock of the Company or obligating the Company or any subsidiary of the Company to grant, extend or enter into any such agreement or commitment and there is no commitment of the Company or any subsidiary to 11 distribute to holders of any class of its capital stock, any dividends, distributions, evidences of indebtedness or assets. Except as permitted by this Agreement, there are no voting trusts, proxies or other agreements or understandings to which the Company or any subsidiary of the Company is a party or is bound with respect to the voting of any shares of capital stock of the Company and no shares of capital stock of the Company are subject to transfer restrictions imposed by or with the knowledge, consent or approval of the Company or other similar arrangements imposed by or with the knowledge, consent or approval of the Company, except for restrictions on transfer imposed by the Securities Act of 1933, as amended (the "Securities Act"), and state securities -------------- laws. The Company Common Stock (including the associated Company Rights) constitutes the only class of equity securities of Company or its subsidiaries registered or required to be registered under the Exchange Act. Section 5.3 Subsidiaries. ------------ (a) The only subsidiaries of the Company (each a "Company Subsidiary") are ------------------ those set forth in Section 5.3 of the Company Disclosure Schedule. Except for ---------------------------------------------- shares of, or ownership interests in, the Company Subsidiaries, the Company does not own of record or beneficially, directly or indirectly (i) any shares of outstanding capital stock or securities convertible into or exchangeable or exercisable for capital stock of any other corporation or (ii) any participating interest in any partnership, joint venture or other similar non-corporate business enterprise. Each Company Subsidiary is a corporation, partnership or limited liability company duly organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the laws of the jurisdiction of its incorporation or organization and has all requisite corporate, partnership or limited liability company power and authority to own, use, license, lease and operate its properties and assets and to carry on its business as it is now being conducted. Each Company Subsidiary is duly qualified as a foreign corporation to do business and is in good standing (with respect to jurisdictions that recognize such concept), in each jurisdiction in which the character of its properties and assets owned or leased or the nature of its activities makes such qualification necessary, except where the failure to be so qualified, individually or in the aggregate, would not have a Company Material Adverse Effect. The Company has heretofore made available to Parent and Subsidiary complete and correct copies of the charter and bylaws (or other comparable organizational documents) of all material Company Subsidiaries as in effect on the date of this Agreement. (b) All of the issued and outstanding shares of capital stock of or other ownership interests in, each corporate subsidiary of the Company are validly issued, fully paid, nonassessable and free of preemptive or similar rights and (other than director qualifying shares and shares held by nominees of the Company, all of which are listed in Section 5.3(b) of the Company Disclosure ---------------------------------------- Schedule) are owned directly or indirectly by the Company free and clear of any - -------- liens, claims, mortgages, pledges, charges, encumbrances, security interests or adverse claims of any kind ("Liens"). There are no subscriptions, options, warrants, rights, calls, contracts, voting trusts, proxies or other commitments, understandings, restrictions or arrangements relating to the issuance, sale, voting, transfer, ownership or other rights with respect to any shares of capital stock of or other ownership interest in any Company Subsidiary, including any right of conversion or exchange under any outstanding security, instrument or agreement. As used in this Agreement, the term "subsidiary" means with respect to any party any corporation or other business entity (i) of which such party or any other subsidiary of such party is a general partner or (ii) of which of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions with respect to such corporation or other business entity are at the time owned by such party and/or one or more subsidiaries. 12 Section 5.4 Authority; Non-Contravention; Approvals. --------------------------------------- (a) The Company has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, subject, in the case of the consummation of the Merger, to the Company Stockholders' Approval (as defined in Section 5.20), if required. This Agreement and the consummation by the Company of the transactions contemplated hereby have been approved by the Board of Directors of the Company, and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby, except for the Company Stockholders' Approval, if required. This Agreement has been duly executed and delivered by the Company and assuming the due authorization, execution and delivery hereof by Parent and Subsidiary, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms except as enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium and similar laws, both state and federal, affecting the enforcement of creditors' rights or remedies in general as from time to time in effect or (ii) the exercise by courts of equity powers. (b) Subject to obtaining the Company Stockholders' Approval, if required, the execution, delivery and performance of this Agreement by the Company and the consummation of the Offer, the Merger and the other transactions contemplated hereby do not and will not violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with or without notice or lapse of time or both, would constitute a default) under, or result in the termination of, or the loss of a benefit under or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any Lien, upon any of the properties or assets of the Company or any of its subsidiaries under any of the terms, conditions or provisions of (i) the respective certificates of incorporation or bylaws of the Company or any Company Subsidiary (or, in the case of any Company Subsidiary that is not a corporation, its comparable organizational documents); (ii) any statute, law, ordinance, rule, regulation, judgment, decree, order, injunction, writ, permit or license of any court or governmental authority applicable to the Company or any of its subsidiaries or any of their respective properties or assets; or (iii) any material note, bond, mortgage, indenture, deed of trust, loan, credit agreement, license, franchise, permit, concession, contract, lease or other material instrument, obligation or agreement of any kind to which the Company or any Company Subsidiary is now a party or by which the Company or any Company Subsidiary or any of their respective properties or assets may be bound or affected; other than (in the case of clauses (ii) and (iii) above), such violations, conflicts, breaches, defaults, terminations, accelerations or creations of Liens that would not, individually or in the aggregate, have a Company Material Adverse Effect. None of the Contracts (as defined in Section 5.22) described in Section 5.22(h) or (i) requires the consent of a third party to enter into this Agreement or to consummate the transactions contemplated hereby. Except for third party consents the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not a party to any material contract (excluding for purposes of this representation any Contract described in Section 5.22(h) or (i)) requiring the consent of a third party to enter into this Agreement or to consummate the transactions contemplated hereby. (c) Except for (i) the filings by the Company required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR --- Act"); (ii) the competition filings required before the Bundeskartellamt; (iii) - --- the filing of the Schedule 14D-9 and the Proxy Statement, if required, with the SEC and such other reports under and such other compliance with the Exchange Act and the Securities Act and the rules and regulations thereunder as may be required in connection with this Agreement and the transactions contemplated hereby; (iv) the making of the Merger Filing with the Secretary of State of the State of Delaware in connection with the Merger; and (v) compliance with the rules and regulations of the New York Stock Exchange (the filings and approvals referred to in clauses (i) through (v) are 13 collectively referred to as the "Company Regulatory Approvals"), no declaration, ---------------------------- filing or registration with, or notice to, or authorization, consent, order or approval of, any federal, state, local, municipal or foreign government, any instrumentality, subdivision, court, administrative agency or commission or other authority thereof, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority (a "Governmental Authority") is required to be obtained or made in ---------------------- connection with or as a result of the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated hereby, other than such declarations, filings, registrations, notices, authorizations, consents or approvals which, if not made or obtained, as the case may be, would not, individually or in the aggregate, have a Company Material Adverse Effect. Section 5.5 Reports and Financial Statements. -------------------------------- (a) Since December 31, 1997, the Company has filed with the SEC all forms, statements, reports and documents (including all exhibits, post-effective amendments and supplements thereto) required to be filed by it under each of the Securities Act, the Exchange Act and the respective rules and regulations promulgated thereunder, all of which, as amended (if applicable), complied in all material respects when filed with all applicable requirements of the appropriate act and the rules and regulations thereunder. The Company has previously delivered or made available (including via the SEC EDGAR System) to Parent copies (including all exhibits, post-effective amendments and supplements thereto) of its (i) Annual Reports on Form 10-K for the years ended December 31, 1997, 1998 and 1999, as filed with the SEC; (ii) proxy and information statements relating to all meetings of its stockholders (whether annual or special) from December 31, 1997 until the date hereof; and (iii) all other reports, including quarterly reports, and registration statements filed by the Company with the SEC since December 31, 1997 (other than registration statements filed on Form S-8) (the documents referred to in clauses (i), (ii) and (iii) being referred to as the "Company SEC Reports"). As of their respective dates, ------------------- the Company SEC Reports did not or will not (as the case may be) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company Subsidiaries is required to file any forms, reports, schedules, statements or other documents with the SEC. (b) The audited consolidated financial statements of the Company included in the Company's Annual Report on Form 10-K for the years ended December 31, 1997, 1998 and 1999 and the unaudited consolidated interim financial statements included in the Company's Quarterly Report on Form 10-Q for the quarter ending June 30, 2000 (collectively, the "Company Financial Statements") have been ---------------------------- prepared in accordance with United States generally accepted accounting principles ("GAAP") applied on a basis consistent with prior periods and fairly ---- presented the consolidated financial position of the Company and the Company Subsidiaries as of the dates thereof and the related consolidated statement of operations, cash flows and stockholders' equity included in the Company SEC Reports fairly presented the consolidated results of operations of the Company and the Company Subsidiaries for the respective periods then ended (subject, in the case of unaudited interim statements to normal year-end adjustments and the absence of certain footnote disclosures). (c) As of the date of this Agreement, except as set forth in the Company SEC Reports filed prior to the date of this Agreement, neither the Company nor any of its subsidiaries is a party to or bound by (i) any "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or (ii) any non-competition agreement or any other agreement or arrangement that materially limits the Company or any of its subsidiaries or any of their respective affiliates, or that would, after the Effective Time similarly materially limit Parent or the Surviving Corporation or any successor thereto, from engaging or competing in any line of business or in any geographic area after giving effect to the Merger. 14 Section 5.6 Absence of Undisclosed Liabilities; Affiliate Transactions. ---------------------------------------------------------- (a)Except as specifically disclosed in the Company SEC Reports filed since June 30, 2000 and prior to the date of this Agreement, at June 30, 2000 and from that date to the date of this Agreement, neither the Company nor any of the Company Subsidiaries had or has incurred any liabilities or obligations (whether absolute, accrued, contingent or otherwise) of any nature, except (i) liabilities, obligations or contingencies (A) which are accrued or reserved against in the Company Financial Statements or reflected in the notes thereto or (B) which were incurred after June 30, 2000 in the ordinary course of business and consistent with past practices; or (ii) liabilities, obligations or contingencies which are of a nature not required to be reflected in the consolidated financial statements of the Company and the Company Subsidiaries prepared in accordance with GAAP consistently applied and which were incurred in the ordinary course of business. (b) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, there are no other transactions, agreements, arrangements or understandings between the Company or the Company Subsidiaries, on the one hand, and the Company's affiliates (other than wholly-owned subsidiaries of the Company) or other Persons, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act. Section 5.7 Absence of Certain Changes or Events. ------------------------------------ (a) From June 30, 2000 to the date of this Agreement, neither the Company nor any Company Subsidiary has (i) borrowed any amount or incurred any material liabilities (absolute or contingent) except in the ordinary course of business; (ii) declared, set aside or made any payment or distribution to stockholders, other than regular semi-annual cash dividends, or purchased or redeemed any shares of its capital stock or other securities; (iii) mortgaged, pledged or subjected to Lien (other than (x) liens for current taxes, payments of which are not yet due or delinquent and (y) imperfections or irregularities in title, if any, as do not materially affect the use of the properties or assets subject thereto or affected thereby, or otherwise materially impair the Company's business operations, (each a "Permitted Lien")) any of its material assets, -------------- tangible or intangible; (iv) sold, assigned or transferred any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets (it being understood that a license in the ordinary course of business of any asset of the type referred to in this clause (iv) shall not be deemed a sale, assignment or transfer of such asset); (v) made any changes in officer or executive compensation other than in the ordinary course of business; (vi) waived any rights of substantial value, other than in the ordinary course of business; (vii) entered into any transaction, except in the ordinary course of business consistent with past practice or as otherwise contemplated hereby; (viii) changed, in any material way, its accounting principles, practices or methods except as required by GAAP or the rules and regulations promulgated by the SEC; or (ix) agreed, in writing or otherwise, to take any of the actions listed in clauses (i) through (ix) above. (b) Since December 31, 1999, neither the Company nor any Company Subsidiary has, except as specifically disclosed in the narrative portion of any Company SEC Report (including in the notes to the financial statements contained therein) filed between December 31, 1999 and the date of this Agreement, suffered or experienced any change, event or development which, individually or in the aggregate, constitutes or would reasonably be expected to have a Company Material Adverse Effect; provided, however, that for purposes of this section (and paragraph (c)(iii) of Annex A) only, none of the following, to the extent ------- arising after the date of this Agreement, shall be deemed to constitute a Company Material Adverse Effect and none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur: (i) any effect resulting from any material fluctuations in currency prices; (ii) any effect relating to conditions generally affecting companies operating in the ultrasound industry, in the same general manner and to the same general extent; (iii) any effect resulting from the announcement or pendency of the Offer or the Merger (including, without limitation, any cancellations of or delays in customer orders or products shipments, 15 any disruption in supplier, distributor, partner or similar relationships or any loss of employees); or (iv) any effect resulting from compliance with the terms of, or the taking of any action required by, this Agreement. In addition, any failure by the Company following the date of this Agreement to meet internal projections or forecasts or published revenue or earnings predictions, in and of itself, shall not be deemed to constitute a Company Material Adverse Effect (it being understood that such failure may nonetheless be evidence of other events that have resulted in the occurrence of a Company Material Adverse Effect). Section 5.8 Litigation. Except as disclosed in the Company SEC Reports ---------- filed prior to the date of this Agreement, there are no claims, suits, actions, investigations or proceedings pending or, to the best knowledge of the Company, threatened, against the Company or any Company Subsidiary or relating to or affecting their respective properties, assets or rights (including, without limitation, any claim based on a theory of product liability), or any of their respective directors or officers, before any court, governmental department, commission, agency, instrumentality or authority, or any arbitration board or tribunal that either alone or with other similar actions would reasonably by expected to result in, individually or in the aggregate, liability to the Company or any Company Subsidiary of more than $1,000,000 or a Company Material Adverse Effect or to materially adversely affect the Company's ability to perform its obligations under this Agreement. Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, neither the Company nor any Company Subsidiary is subject to any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality or authority, or any arbitrator which would reasonably be expected to result in, individually or in the aggregate, liability to the Company or any Company Subsidiary of more than $1,000,000 or a Company Material Adverse Effect. Section 5.9 Information Supplied. -------------------- (a) Each of the Schedule 14D-9 and the other documents required to be filed by the Company with the SEC in connection with the Offer, the Merger and the other transactions contemplated hereby, including the Proxy Statement in connection with the Merger, and the information supplied by the Company to Parent for inclusion or incorporation by reference in the Offer Documents and any other documents to be filed with the SEC or disseminated to stockholders in connection with the Offer, will comply in all material respects with the requirements of the Exchange Act and the Securities Act and the rules and regulations promulgated thereunder, as the case may be, and will not, on the date of its filing or dissemination, as the case may be, 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. (b) Notwithstanding the foregoing, no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied in writing by Parent or any of its subsidiaries for inclusion or incorporation by reference therein. Section 5.10 No Violation of Law. Neither the Company nor any of its ------------------- subsidiaries is or, since December 31, 1997, has been in material default under or in material violation of or has been charged with any material violation of, any law, statute, order, rule, regulation, ordinance or judgment (including, without limitation, any applicable environmental, labor, export control and foreign corrupt practices law, ordinance, decree or regulation) of any Governmental Authority to which the Company or any Company Subsidiary or any of their respective assets or properties is or was subject, except for defaults or violations which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company and the Company Subsidiaries have all permits, licenses, franchises, variances, exemptions, orders and other governmental authorizations, consents and approvals necessary to conduct their businesses as presently conducted and to own their assets and 16 properties (collectively, the "Company Permits"), except for such permits, --------------- licenses, franchises, variances, exemptions, orders, authorizations, consents and approvals the absence of which would not have, individually or in the aggregate, a Company Material Adverse Effect. Correct and complete copies of all material Company Permits have been provided or made available to Parent. The Company and its subsidiaries are not in violation in any material respect of the terms of any Company Permit, except for such violations which have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Section 5.11 Compliance with Agreements. Neither the Company nor any -------------------------- Company Subsidiary is in breach or violation of or in default in the performance or observance of any term or provision of, and no event has occurred which, with or without lapse of time, notice or action by a third party, would result in a default under, or the loss of a benefit under, or the right to terminate or accelerate (each a "Violation") (a) the respective certificates of --------- incorporation, bylaws or similar organizational instruments of the Company or any of the Company Subsidiaries, or (b) any material contract, commitment, agreement, indenture, mortgage, loan agreement or credit agreement, note, lease, bond, license, deed of trust, approval or other material instrument to which the Company or any of the Company Subsidiaries is a party or by which any of them is bound or to which any of their material properties or material assets are subject, other than, in the case of clause (b) of this Section 5.11, such breaches, violations and defaults which have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Section 5.12 Taxes. ----- (a) Each of the Company and the Company Subsidiaries has timely filed or will timely file with the appropriate Governmental Authorities all Tax Returns required to be filed by it for all periods ending on or prior to the Effective Time, and all such Tax Returns are true, complete and correct in all material respects. Each of the Company and the Company Subsidiaries has timely paid in full all Taxes due with respect to such Tax Returns and has made adequate provision for Taxes in accordance with GAAP. (b) There is, with respect to the Company or any of the Company Subsidiaries, no pending, or, to the knowledge of the Company, threatened action, audit, proceeding or investigation involving (i) the assessment or collection of Taxes or (ii) a claim for refund with respect to Taxes previously paid. (c) Neither the Company nor any of the Company Subsidiaries has received notice that the Internal Revenue Service (the "IRS") or any other taxing --- authority has asserted any deficiency or claim for Taxes, and no issue has been raised by any taxing authority in any audit which would result in a proposed deficiency of the Company or any Company Subsidiary for any period not so examined, and all Tax deficiencies asserted or assessed against the Company or any of the Company Subsidiaries have been paid or finally settled with no remaining amounts owed. (d) Neither the Company nor any Company Subsidiary has requested or obtained an extension of the time within which to file any United States Federal Tax Return which has not yet been filed. (e) There are no outstanding waivers of any statute of limitation with respect to the assessment or collection of any Tax of the Company or any of the Company Subsidiaries. (f) Neither the Company nor any of the Company Subsidiaries has received any written notice from any taxing authority to the effect that it may be subject to taxation by such taxing authority (other than with respect to Taxes for which it already files Tax Returns). 17 (g) All amounts that are required to be collected or withheld by the Company or any of the Company Subsidiaries with respect to Taxes have been duly collected or withheld, and all such amounts that are required to be remitted to any taxing authority have been duly remitted, and the transactions contemplated by this Agreement are not subject to Tax withholding pursuant to the provisions of Section 3406 or Sections 1441 through 1446 of the Code or any other provision of applicable law. (h) There are no liens for Taxes upon the assets of the Company or any of the Company Subsidiaries other than liens for Taxes not yet due. (i) Neither the Company nor any Company Subsidiary has any liability for the Taxes of any other person which is not included in the Company's consolidated United States Federal Tax Return (i) under Section 1.1502-6 of the Treasury regulations; (ii) as a transferee or successor; (iii) by contract; or (iv) otherwise. Neither the Company nor any Company Subsidiary has agreed to make nor is required to make any adjustment under Section 481 of the Code by reason of a change in accounting method. (j) Neither the Company nor any Company Subsidiary is a party to or bound by any obligations under any tax sharing, tax allocation, tax indemnity or similar agreement or arrangement with any person or entity which is not included in the Company's consolidated United States Federal Tax Return. (k) Neither the Company nor any Company Subsidiary has made any payments, is obligated to make any payments, or is a party to any contract that could require it to make any payments, that are not deductible as a result of the provisions set forth in Section 280G of the Code or the proposed Treasury regulations thereunder or would result in an excise tax liability with respect to any such payment under Section 4999 of the Code. (l) There are no material elections with respect to Taxes affecting the Company and the Company Subsidiaries. (m) The Company is not nor has it ever been a United States real property holding corporation within the meaning of Section 897(c)(1)(A)(ii) of the Code. (n) The information contained in the Tax Returns and Tax workpapers of the Company and the Company Subsidiaries with respect to (i) the amount of unused net operating losses and net capital losses, ownership changes pursuant to Code Sections 382 and 383 and related matters, unused foreign tax credits, unused R&D tax credits, unused business tax credits and any other unused tax credits, (ii) the amount of tax credit that is potentially subject to recapture, (iii) the amount of overall foreign losses potentially subject to recapture, if any, (iv) the aggregate amount of ordinary losses on Section 1231(b) property potentially subject to recapture, and (v) the adjusted bases of assets, copies of which have been provided or made available to Parent, is complete and correct in all material respects. (o) For purposes of this Agreement, (i) the term "Taxes" means all taxes, ----- including, without limitation, income, gross receipts, excise, property, sales, withholding, social security, occupation, use, service, license, payroll, franchise, transfer and recording taxes, fees and charges, windfall profits, severance, customs, import, export, employment or similar taxes, charges, fees, levies or other assessments imposed by the United States, or any state, local or foreign government or subdivision or agency thereof, whether computed on a separate, consolidated, unitary, combined, or any other basis, and such term shall include any interest, fines, penalties or additional amounts of any interest in respect of any additions, fines or penalties attributable or imposed or with respect to any such taxes, charges, fees, levies or other assessments, and (ii) the term "Tax Return" means any return, report or other document ---------- required to be supplied to a taxing authority in connection with Taxes. 18 Section 5.13 Employee Benefit Plans; ERISA. ----------------------------- (a) With respect to each Company Plan, the Company has made available to Parent a true, correct and complete copy of: (i) any plan documents, trust agreements, insurance contracts and other funding vehicles, and amendments thereto in effect as of the date of this Agreement; (ii) for the most recently ended plan year, all IRS Form 5500 series forms (and any financial statements and other schedules attached thereto) filed with respect to any Company Plan; (iii) all summary plan descriptions and subsequent summaries of material modifications with respect to each Company Plan in effect as of the date of this Agreement for which such descriptions and modifications are required under ERISA; and (iv) the most recent IRS determination letter for each Pension Plan which is intended to be qualified under Section 401(a) of the Code. (b) Neither the Company nor any of its ERISA Affiliates maintains or has, within the previous six years, maintained a Pension Plan which is subject to Section 412 of the Code or Title IV of ERISA. (c) Neither the Company nor any of its ERISA Affiliates currently maintains or has, within the previous six years, maintained or been obligated to contribute to any multiemployer plan, as defined in Section 3(37) of ERISA. (d) No Company Plan that is a "welfare benefit plan" as defined in Section 3(1) of ERISA provides for continuing benefits or coverage for any participant or beneficiary or covered dependent or a participant after such participant's termination of employment, except to the extent required by law. (e) Neither the Company nor any of its ERISA Affiliates is bound by any collective bargaining agreement or similar agreement to maintain or contribute to any Company Plan. (f) Each Company Plan (i) has been administered in material compliance with its terms and is in material compliance with the applicable provisions of ERISA and has been administered in material compliance with the applicable provisions of ERISA, the Code and other applicable laws; (ii) which is intended to be a qualified plan within the meaning of Section 401(a) of the Code has a favorable determination from the IRS as to its qualified status or is within the remedial amendment period for making any required changes and the Company is not aware of any circumstances likely to result in revocation of any such favorable determination letter; and (iii) may, without liability, be amended, terminated or otherwise discontinued, except as specifically prohibited by applicable law. (g) With respect to each Company Plan, (i) there are no proceedings pending or, to the knowledge of the Company, threatened by the IRS, the Department of Labor, or any participant or beneficiary (other than claims for benefits in the ordinary course) with respect to the design or operation of the Company Plans; (ii) the Company has made or provided for all contributions required under the material terms of such Company Plans and any applicable laws for all periods through the date of this Agreement; and (iii) there have been no "prohibited transactions" (as described in Section 4975 of the Code or in Part 4 of Subtitle B of Title I of ERISA) for which a statutory, administrative, or regulatory exemption is not available. (h) Section 5.13(h) of the Company Disclosure Schedule contains a true and -------------------------------------------------- complete list of all material employment contracts and other employee benefit arrangements with "change of control" or similar provisions and all severance agreements, in each case with executive officers or directors of the Company. The consummation of the transactions contemplated by this Agreement in and of themselves without regard to any other event, will not (i) entitle any employees of the Company or any of its subsidiaries to severance pay, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount 19 payable or trigger any other material obligation pursuant to, any of the Company Plans, (iii) result in any payments under any of the Company Plans which would not be deductible under Section 280G of the Code, or (iv) cause any payments under any Company Plan to cease to be excluded from "applicable employee remuneration" for purposes of Section 162(m) of the Code. Neither the Company nor any of its subsidiaries has any obligations under non-qualified retirement plans under ERISA. (i) For purposes of this Section 5.13, (i) "Company Plan" means (x) each ------------ employee pension benefit plan (as such term is defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) ("Pension ----- ------- Plan"); (y) each employee welfare benefit plan (as such term is defined in - ---- Section 3(1) of ERISA) ("Welfare Plan") maintained by the Company and any of its ------------ ERISA Affiliates, and (z) each stock option, stock purchase, stock appreciation right and stock based plan and each material deferred compensation, employment, severance, change in control, incentive and bonus plan or agreement maintained by the Company for the benefit of current or former employees or current or former directors of the Company whether written or oral, and whether or not subject to ERISA; and (ii) "ERISA Affiliate" means any trade or business whether --------------- or not incorporated, under common control with the Company within the meaning of Section 414(b), (c), (m), or (o) of the Code or Section 4001(b) of ERISA. Section 5.14 Labor Controversies. There are no material controversies ------------------- pending or, to the knowledge of the Company, threatened between the Company or its subsidiaries and any of their respective employees. The Company and its subsidiaries are in compliance in all material respects with all applicable laws respecting employment and employment practices, terms, and conditions of employment, and wages and hours and have not engaged in any unfair labor practices. Neither the Company nor any of its subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by the Company or its subsidiaries, nor does the Company know of any activities or proceedings of any labor union to organize any such employees. The Company has no knowledge of any strikes, slowdowns, work stoppages, lockouts or threats thereof, by or with respect to any employees of the Company or any of its subsidiaries. The Company has no knowledge of any actions or events taken by it or its subsidiaries that would give rise to obligations of the Company or any of its subsidiaries under the Workers Adjustment and Retraining Notification Act, 29 U.S.C. (S) 2101, et seq. -- --- Section 5.15 Environmental Matters. --------------------- (a) Each of the Company and the Company Subsidiaries conducts its business and operations in compliance in all material respects with all material applicable Environmental Laws (as defined below). Since January 1, 1997, none of the Company or the Company Subsidiaries has received written notice of, or is the subject of, any material claim, suit, inquiry, investigation, information request, demand or notice based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling, or the emission, discharge, release or threatened release into the environment, of any pollutant, contaminant, or hazardous or toxic material or waste (collectively, an "Environmental Event"). For purposes of this Agreement, the term ------------------- "Environmental Law" means any foreign, federal, state or local law, statute, ----------------- rule or regulation or the common law relating to the environment or occupational health and safety, including without limitation, any statute, regulation or order pertaining to (i) treatment, storage, disposal, generation or transportation of industrial, toxic or hazardous substances or solid hazardous waste; (ii) air, water and noise pollution; (iii) groundwater and soil contamination; (iv) the release or threatened release into the environment of industrial, toxic or hazardous substances, or solid or hazardous waste, including without limitation emissions, discharges, injections, spills, escapes or dumping of pollutants, contaminants or chemicals; (v) the protection of wildlife, marine sanctuaries and wetlands, including without limitation all endangered and threatened species; (vi) underground and other storage tanks or vessels, abandoned, disposed or discarded barrels, containers and other closed receptacles; (vii) health and safety of employees and other persons; and (viii) manufacture, processing, use, distribution, 20 treatment, storage, disposal, transportation or handling of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or oil or petroleum products or solid or hazardous waste. As used above, the terms "release" and "environment" shall have the meaning set forth in the federal ------- ----------- Comprehensive Environmental Compensation, Liability and Response Act of 1980. (b) To the best knowledge of the current officers and directors of the Company, no notice of any Environmental Event was given to any person or entity that occupied any of the premises occupied by or used by the Company or any Company Subsidiary prior to the date such premises were so occupied. Without limiting the generality of the foregoing, neither the Company or any Company Subsidiary has disposed of or placed on or in any property or facility used in its business any waste materials or hazardous substances in violation of law. (c) Complete and correct copies of all environmental reports, investigations and audits conducted by or on behalf of the Company or any of the Company Subsidiaries and, to the knowledge of the Company, conducted by or on behalf of a third party (whether done at the initiative of the Company or directed by a Governmental Authority or other third party) issued or conducted during the past three years relating to premises currently or previously owned or operated by the Company or any of the Company Subsidiaries or the results of each such investigation or audit, have been provided or made available to Parent. Section 5.15(c) of the Company Disclosure Schedule sets forth a complete -------------------------------------------------- and correct list of all such reports, investigations and audits. Section 5.16 Title to Assets. The Company and each of the Company --------------- Subsidiaries has good and valid title to all of its owned material assets and material properties as reflected in the most recent balance sheet included in the Company Financial Statements, except for properties and assets that have been disposed of in the ordinary course of business since the date of such balance sheet, free and clear of all Liens, except Permitted Liens. Any material property or material assets held or used under license or lease by the Company or any of the Company Subsidiaries are held by them under valid, subsisting and enforceable licenses or leases with such exceptions as are not material and do not interfere with the use made of the property and assets. The Company and each of the Company Subsidiaries own or have sufficient right to use all material assets and material properties necessary to conduct their businesses in the manner in which they are currently conducted. Section 5.17 Intellectual Property; Software. ------------------------------- (a) (i) Each of the Company and the Company Subsidiaries owns, or possesses adequate licenses or other valid rights to use, all existing United States and foreign patents, trademarks, trade names, service marks, copyrights, trade secrets, know-how, software, databases and intellectual property rights and all applications therefor that are material to its business as currently conducted (the "Company Intellectual Property Rights"); (ii) all Company Intellectual ------------------------------------ Property Rights are either owned by the Company or its subsidiaries free and clear of all Liens (other than Permitted Liens) or are used pursuant to a license agreement or are otherwise being validly used; (iii) each such license agreement is valid and enforceable and in full force and effect; (iv) neither the Company nor any of the Company Subsidiaries is in default thereunder in any material respect, and to the knowledge of the Company, no corresponding licensor is in default thereunder in any material respect; (v) none of the Company Intellectual Property Rights materially infringes any material right of any person; (vi) there is no pending or, to the knowledge of the Company, threatened litigation, adversarial proceeding, administrative action or other challenge or claim relating to any Company Intellectual Property Rights; (vii) there is no outstanding order of a Governmental Authority relating to any Company Intellectual Property Rights; (viii) to the knowledge of Company, there is currently no infringement by any person of any Company Intellectual Property Rights; and (ix) the Company Intellectual Property Rights owned, used or possessed by the Company and the 21 Company Subsidiaries is sufficient and adequate to conduct the business of the Company and the Company Subsidiaries in all material respects as such business is currently conducted. (b) The Company and the Company Subsidiaries have taken reasonable steps to protect, maintain and safeguard the Company Intellectual Property Rights, including any Company Intellectual Property Rights for which improper or unauthorized disclosure would impair its value or validity, and have executed and required nondisclosure agreements and made any required filings and registrations in connection with the foregoing. (c) The conduct of the business of the Company and the Company Subsidiaries as now conducted does not, infringe any valid patents, trademarks, trade names, service marks or copyrights of others. The consummation of the transactions contemplated hereby will not result in the loss or impairment of any Company Intellectual Property Rights. (d) Except in the ordinary course of business, neither the Company nor any Company Subsidiary has licensed (or otherwise entered into any agreement permitting) any Person to use or market any material Company Intellectual Property Rights. (e) The hardware and software of the Company and the Company Subsidiaries has, in all material respects, (i) accurately and consistently processed date information during the transition from 1999 to the year 2000, including, but not limited to accepting input, providing date output and performing calculations on dates or portions of dates, and (ii) functioned accurately and without interruption during the transition from 1999 to the year 2000, without any change in operations associated with the advent of the new century. There are no disputes concerning the functionality of any software products of the Company or any Company Subsidiary which, individually or in the aggregate, are or would be material to the Company or such Company Subsidiary. (f) To the knowledge of the Company, no employee of the Company or any of the Company Subsidiaries is in material violation or material breach of any term of any employment contract, patent disclosure agreement or any other contract or agreement with the Company or any other party, which is a breach or violation of provisions relating to the nondisclosure or confidentiality of intellectual property rights or of noncompete covenants designed to protect intellectual property rights. Section 5.18 Brokers and Finders. No agent, broker, investment banker, ------------------- financial advisor or other firm or person is entitled to any brokerage, finder's, financial advisor's or other similar fee or commission for which Parent or any of its subsidiaries could become liable in connection with the transactions contemplated by this Agreement as a result of any action taken by or on behalf of the Company or any of its subsidiaries, other than the Company Financial Advisor, whose fees and expenses will be paid by the Company pursuant to the Company's engagement letter with the Company Financial Advisor, a correct and complete copy of which has been delivered to Parent. Section 5.19 Opinion of Company Financial Advisor. The Company Financial ------------------------------------ Advisor has rendered an opinion to the Board of Directors of the Company, dated the date of this Agreement, to the effect that, as of such date, the Common Stock Price is fair from a financial point of view to the holders of Company Common Stock (other than Parent and its affiliates). A correct and complete copy of that opinion (to the extent reduced to or confirmed in writing) will be delivered to Parent for informational purposes only upon request by the Company. Section 5.20 Vote Required. If a vote of the stockholders of the Company is ------------- required by the DGCL or the Certificate of Incorporation or Bylaws or the Company in connection with the adoption of this Agreement, the affirmative vote of holders of a majority of the shares of Company Common Stock 22 outstanding on the record date for any meeting of the stockholders of the Company held in order to adopt this Agreement (the "Company Stockholders' --------------------- Approval") is the only vote of the holders of any class or series of the - -------- Company capital stock or debt instruments necessary to adopt this Agreement. Section 5.21 Insurance. The Company and the Company Subsidiaries maintain --------- policies of fire and casualty, liability and other forms of insurance in such amounts, with such deductibles and against such risks and losses as are customary for companies of similar size in the Company's industry, and also maintain all policies of insurance which are required by their material commercial contracts, in such amounts as specified in the respective contracts. The Company has made available to Parent summaries of all of the Company's material insurance policies in effect as of the date of this Agreement. All such policies are in full force and effect, all premiums due and payable thereon have been paid, and no notice of cancellation or termination has been received with respect to any such policy. The insurance policies referred to in this Section 5.21 will remain in full force and effect and will not in any way be affected by or terminate by reason of, any of the transactions contemplated hereby. Section 5.22 Contracts. Section 5.22 of the Company Disclosure Schedule --------- ----------------------------------------------- lists, under the relevant heading, all oral or written executory contracts, agreements, arrangements, guarantees, licenses, leases and commitments (each, a "Contract") other than Contracts heretofore filed as an exhibit to any Company -------- SEC Reports filed prior to the date of this Agreement, that exist as of the date hereof to which the Company or any Company Subsidiary is a party or by which the Company or such Company Subsidiary is bound and which fall within any of the following categories: (a) material Contracts not entered into in the ordinary course of the Company's and the Company Subsidiaries' businesses which require payments by the Company or any Company Subsidiaries in excess of $1,000,000; (b) material joint venture and partnership agreements that cannot be terminated by the Company by providing notice of 90 days or less and without liability to the Company or any Company Subsidiary; (c) Contracts which contain requirements for payments by the Company or any Company Subsidiary in excess of $1,000,000; (d) Contracts relating to any outstanding commitment for capital expenditures in excess of $1,000,000; (e) indentures, mortgages, promissory notes, loan agreements or guarantees of borrowed money, letters of credit or other agreements or instruments of the Company or the Company Subsidiaries or commitments for the borrowing or the lending by the Company or any Company Subsidiary of amounts in excess of $250,000 in the aggregate or providing for the creation of any Lien (other than money purchase or similar Liens) upon any of the assets or properties of the Company or any Company Subsidiary with an aggregate value in excess of $250,000; (f) Contracts providing for "earn-outs" or other similar contingent payments by the Company or any Company Subsidiary involving more than $250,000 per contract over the terms of all such Contracts; (g) Contracts associated with off balance sheet financing in excess of $1,000,000 in the aggregate, including but not limited to arrangements for the sale of receivables; (h) exclusive distribution Contracts entered into by the Company or any Company Subsidiary; (i) supply Contracts providing for payments by the Company or any Company Subsidiary in excess of $1,000,000; and (j) stock purchase agreements, asset purchase agreements or other acquisition or divestiture agreements where the consideration payable by the Company or any Company Subsidiary in any individual transaction exceeds $2,000,000; and each other agreement which is material to the Company, irrespective of amount. All material Contracts to which the Company or any of the Company Subsidiaries is a party or by which it or such subsidiary is bound are valid and binding obligations of the Company or the Company Subsidiary and, to the knowledge of the Company, the valid and binding obligation of each other party thereto except as may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws, both state and federal, affecting the enforcement of creditors' rights or remedies in general as from time to time in effect or the exercise by courts of equity powers and except such Contracts which, if not so valid and binding, have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor, to the knowledge of the Company, any 23 other party thereto is in violation of or in default in respect of, nor has there occurred an event or condition which with the passage of time or giving of notice (or both) would constitute a default under or permit the termination of, any such material Contract except such violations or defaults under or terminations which have not had and would not be reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Section 5.23 Accounts Receivable. All accounts receivable of the Company ------------------- and the Company Subsidiaries shown in the Company Financial Statements have arisen from bona fide transactions by the Company or the Company Subsidiaries in ---- ---- the ordinary course of business consistent with past practice. Section 5.24 Product Warranty. Each product manufactured, sold, leased, or ---------------- delivered by the Company or any of the Company Subsidiaries has been in conformity in all material respects with all applicable contractual commitments and all express and implied warranties, and neither the Company nor any of the Company Subsidiaries has any liabilities or obligations for replacement or repair thereof or other damages in connection therewith, subject only to the reserve for product warranty claims set forth on the face of the Company Financial Statements, as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company. Section 5.25 Product Liability. Except as set forth in the Company SEC ----------------- Reports filed prior to the date of this Agreement, neither the Company nor any of the Company Subsidiaries has any material liabilities or material obligations arising out of any injury to persons or property as a result of the ownership, possession or use of any product manufactured, sold, leased or delivered by the Company or any of the Company Subsidiaries. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY Parent and Subsidiary each represent and warrant to the Company that: Section 6.1 Organization and Qualification. Each of Parent and Subsidiary ------------------------------ is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to own, license, use or lease and operate its assets and properties and to carry on its business as it is now being conducted. Each of Parent and Subsidiary is qualified to transact business and is in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified and in good standing could not reasonably be expected to prevent or delay the consummation of the Offer or the Merger. Section 6.2 Authority; Non-Contravention; Approvals. --------------------------------------- (a) Parent and Subsidiary each has all requisite corporate power and authority to enter into this Agreement and to consummate the Offer, the Merger and the other transactions contemplated hereby. This Agreement has been approved by the Boards of Directors of Parent and Subsidiary and the sole stockholder of Subsidiary, and no other corporate proceedings on the part of Parent or Subsidiary are necessary to authorize the execution and delivery of this Agreement or the consummation by Parent and Subsidiary of the transactions contemplated hereby. This Agreement has been duly executed and delivered by each of Parent and Subsidiary, and constitutes a valid and legally binding agreement of each of Parent and Subsidiary enforceable against each of them in accordance with its terms. (b) The execution, delivery and performance of this Agreement by each of Parent and Subsidiary and the consummation of the Offer, the Merger and the other transactions contemplated hereby do not and 24 will not violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with, or without notice or lapse of time or both, would constitute a default) under, or result in the termination of or a loss of a benefit under, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any Lien upon any of the properties or assets of Parent or Subsidiary under any of the terms, conditions or provisions of (i) the respective certificates of incorporation or bylaws of Parent or any of its subsidiaries; (ii) any statute, law, ordinance, rule, regulation, judgment, decree, order, injunction, writ, permit or license of any court or Governmental Authority applicable to Parent or any of its subsidiaries or any of their respective properties or assets; or (iii) any note, bond, mortgage, indenture, deed of trust, loan, credit agreement, license, franchise, permit, concession, contract, lease or other instrument, obligation or agreement of any kind to which Parent or any of its subsidiaries is now a party or by which Parent or any of its subsidiaries or any of their respective properties or assets may be bound or affected; other than (in the case of clauses (ii) and (iii) above), such violations, conflicts, breaches, defaults, terminations, accelerations or creations of Liens that could not reasonably be expected to prevent or delay the consummation of the Offer or the Merger. (c) Except for (i) the filings by Parent required by the HSR Act; (ii) the competition filing required by the Bundeskartellamt; (iii) publication after consummation of the Offer of an "ad hoc" disclosure pursuant to Section 15 of the German Securities Trading Act; (iv) the filing of the Offer Documents with the SEC and such other reports under and such compliance with the Exchange Act and the Securities Act and the rules and regulations thereunder as may be required in connection with this Agreement and the other transactions contemplated thereby; (v) the making of the Merger Filing with the Secretary of State of the State of Delaware in connection with the Merger; (vi) the filing of reports with the U.S. Department of Commerce regarding foreign direct investment in the United States; (vii) compliance with the rules and regulations of New York Stock Exchange; and (viii) compliance with state securities or Blue Sky Laws, (the filings and approvals referred to in clauses (i) through (vi) are collectively referred to as the "Parent Required Statutory Approvals"), no ----------------------------------- declaration, filing or registration with, or notice to, or authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Parent or Subsidiary or the consummation by Parent or Subsidiary of the transactions contemplated hereby, and to the knowledge of the executive officers of Parent and Parent's Medical Engineering Group, no statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction of any court or Governmental Authority is in effect or is proposed which would make the consummation of the Merger illegal other than the laws referred to in clauses (i) through (viii) of this sentence. Section 6.3 Information Supplied. -------------------- (a) Each of the Offer Documents and the other documents required to be filed by Parent with the SEC in connection with the Offer, the Merger and the other transactions contemplated hereby, and the written information supplied by Parent to the Company for inclusion in the Schedule 14D-9, will comply as to form, in all material respects, with the requirements of the Exchange Act and the Securities Act, as the case may be, and will not, on the date of its filing or dissemination, as the case may be, 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. (b) Notwithstanding the foregoing, no representation or warranty is made by Parent or Subsidiary with respect to statements made or incorporated by reference therein based on information supplied in writing by the Company for inclusion or incorporation by reference therein. Section 6.4 Financing. Parent has and will have at each of (i) the time of --------- acceptance for purchase by Subsidiary of the shares of Company Common Stock pursuant to the Offer and (ii) the Effective Time, 25 and will make available to Subsidiary (or cause to be made available), the funds necessary to consummate the Offer and the Merger on the terms contemplated by this Agreement. Section 6.5 Subsidiary. Subsidiary was formed solely for the purposes of ---------- engaging in the transactions contemplated hereby, and has engaged in no other business activities and has conducted its operations only as contemplated hereby. Section 6.6 Brokers and Finders. No agent, broker, investment banker, ------------------- financial advisor or other firm or person is entitled to any brokerage, finder's, financial advisor's or other similar fee or commission for which the Company or any of its subsidiaries could become liable in connection with the transactions contemplated by this Agreement as a result of any action taken by or on behalf of Parent or any of its subsidiaries, other than Deutsche Bank AG and Deutsche Banc Alex. Brown, whose fees and expenses will be paid by Siemens AG. ARTICLE VII COVENANTS OF THE PARTIES Section 7.1 Mutual Covenants. ---------------- (a) General. Subject to the terms and conditions of this Agreement, each of the parties shall (and shall cause its respective subsidiaries to) use its reasonable best efforts to take all actions and to do all things necessary, proper or advisable to consummate the Offer and the Merger and the other transactions contemplated by this Agreement as promptly as possible, including, without limitation, using its reasonable best efforts to (i) prepare, execute and deliver such instruments and take or cause to be taken such actions as any other party shall reasonably request, and (ii) after consultation with the other parties, obtain any consent, waiver, approval or authorization from any third party reasonably requested by such other party in order to maintain in full force and effect any of the Company's contracts, permits, licenses or other rights following the Offer, the Merger and the other transactions contemplated hereby. (b) HSR Act. Without limiting the generality of anything contained in ------- Section 7.1(a) or elsewhere in this Agreement, each of the parties undertakes and agrees to file as soon as practicable, (with the expectation of filing within seven business days after the date hereof), a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the "FTC") and the United States Department of Justice, Antitrust Division (the --- "Antitrust Division"), the Bundeskartellamt and other applicable antitrust or ------------------ competition laws, rules or regulations. Each of the parties shall (i) respond as promptly as practicable to any inquiries received from the FTC, the Antitrust Division, the Bundeskartellamt or other applicable Governmental Authorities for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Authority in connection with antitrust matters; and (ii) take all commercially reasonable steps to avoid any extension of the waiting period under the HSR Act and under other applicable antitrust or competition laws, rules and regulations; and (iii) refrain from entering into any agreement with the FTC, the Antitrust Division, the Bundeskartellamt or other applicable Governmental Authorities not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto. Parent shall use its reasonable best efforts to avoid or eliminate impediments under any antitrust, competition, or trade regulation law that may be asserted by the FTC, the Antitrust Division, any State Attorney General, the Bundeskartellamt or any other Governmental Authority with respect to the Offer or the Merger so as to enable the Closing to occur as soon as reasonably possible; provided, however, that nothing in this Agreement shall require Parent or any of its affiliates to divest or hold separate, or to agree to any material restrictions with respect to the operation of, any business, division or operating unit of Parent or any of its affiliates. Each of the parties or its counsel shall 26 promptly notify the other party or its counsel of any written or oral communication to that party or counsel from the FTC, the Antitrust Division, any State Attorney General, the Bundeskartellamt or any other Governmental Authority and permit the other party or its counsel to review in advance any proposed written communication to any of the foregoing. (c) Other Governmental Matters. Without limiting the generality of anything -------------------------- contained in Section 7.1(a) or Section 7.1(b) or elsewhere in this Agreement, and subject to the terms and conditions of this Agreement, each of the parties hereto shall (and shall cause its subsidiaries to) use its reasonable best efforts to take any additional action that may be necessary, proper or advisable to (i) obtain from any Governmental Authority any consent, license, permit, waiver, approval, authorization (including, without limitation, SEC "no-action" letters) required or appropriate to be obtained by either Parent or the Company or any of their subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the Offer and the Merger and the other transactions contemplated hereby; (ii) make all necessary filings, and thereafter make any required submissions with respect to the Offer and the Merger and the other transactions contemplated hereby required under the Securities Act and the Exchange Act and the rules and regulations thereunder, and any other applicable federal or state securities or other laws; and (iii) effect all other necessary registrations, filings and submissions. Each of the parties shall (and shall cause each of their respective subsidiaries to) cooperate and use reasonable best efforts vigorously to contest and resist any action, including legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order whether temporary, preliminary or permanent that is in effect and restricts, prevents, prohibits or otherwise bars the consummation of the Offer or the Merger or any other transaction contemplated hereby. (d) Recommendation of the Company's Board of Directors; Stockholder --------------------------------------------------------------- Approval; Preparation of Proxy Statement. - ---------------------------------------- (i) Subject to Section 8.2, the Company's Board of Directors shall not withdraw or modify in any manner adverse to Parent its recommendations to the Company's stockholders described in Section 1.2(a), and as long as the Company's Board of Directors shall not have withdrawn or modified in any manner adverse to Parent its recommendation to the Company's stockholders described in Section 1.2(a) in accordance with Section 8.2(b), the Company shall use its reasonable best efforts to solicit the acceptance of the Offer and, if required, the Company Stockholders' Approval. (ii) If the Company Stockholders' Approval is required by law to consummate the Merger, the Company shall, in accordance with applicable law, its Certificate of Incorporation and Bylaws, as promptly as practicable following the expiration of the Offer duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of -------------------- obtaining such approval. Subject to the fiduciary duties of the Company's Board of Directors under applicable law, the Company shall, through its Board of Directors, recommend to its stockholders that the Company Stockholders' Approval be given. Notwithstanding the foregoing, if Parent or Subsidiary shall acquire 90% or more of the then outstanding shares of Company Common Stock pursuant to the Offer or otherwise, the parties shall take all necessary and appropriate actions to cause the Merger, pursuant to the terms thereof, to become effective as soon as practicable after such acquisition without a meeting of the stockholders of the Company and otherwise in accordance with Section 253 of the DGCL (including, without limitation, adoption by the board of directors of Subsidiary of a short-form plan of merger in accordance with the DGCL and consistent with the terms of the Merger). (iii) If the Company Stockholders' Approval is required by law, the Company shall, as soon as practicable following the expiration of the Offer, prepare and file a preliminary proxy statement (as amended and supplemented, the "Proxy Statement") with the SEC and shall use its best --------------- 27 efforts to respond to any comments of the SEC or its staff, and to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after responding to all such comments to the satisfaction of the staff. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. If at any time prior to the Stockholders Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare, and, after consultation with Parent and mail to its stockholders such an amendment or supplement. Parent shall cooperate with the Company in the preparation of the Proxy Statement or any amendment or supplement thereto and shall furnish the Company with all information required to be included therein with respect to Parent or Subsidiary. Parent and its counsel shall be given a reasonable opportunity to review and comment upon the Proxy Statement and related proxy materials and any such correspondence with the SEC or its staff or any proposed amendment or supplement to the Proxy Statement prior to its filing with the SEC or dissemination to the Company's stockholders and the Company shall not transmit any such material to which Parent reasonably objects. (iv) Parent agrees to cause all shares of Company Common Stock purchased pursuant to the Offer and all other shares of the Company Common Stock owned by Parent or Subsidiary to be voted in favor of the Merger. (v) Without limiting the generality of the foregoing, each of the parties shall correct promptly any information provided by it to be used specifically in the Proxy Statement, if required, that shall have become false or misleading in any material respect and shall take all steps necessary to file with the SEC and have declared effective or cleared by the SEC any amendment or supplement to the Proxy Statement so as to correct the same and to cause the Proxy Statement as so corrected to be disseminated to the stockholders of the Company, in each case to the extent required by applicable law. (e) Notification of Certain Matters. Each of the parties agrees to (and to ------------------------------- cause their respective subsidiaries to) use reasonable best efforts to give prompt notice to each other of, and to remedy, (i) the occurrence or failure to occur of any event which occurrence or failure to occur would be likely to cause any of such party's representations or warranties in this Agreement to be untrue or inaccurate in any material respect at the Effective Time, and (ii) any material failure on the part of the notifying party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 7.1(e) shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice. (f) Public Statements. Unless otherwise required by applicable law or by ----------------- obligations pursuant to any listing agreement with or rules of any securities exchange, (i) the initial press release with respect to the Offer, the Merger and the other transactions contemplated by this Agreement shall require the prior mutual agreement and approval of both Parent and the Company and (ii) any subsequent press releases or other public statements with respect to the Offer or the Merger or the other transactions contemplated by this Agreement shall require prior consultation between Parent and the Company. Section 7.2 Conduct of the Company's Business. During the period from the --------------------------------- date of this Agreement and continuing until the earlier of (i) the Effective Time; (ii) the date designees of Parent or Subsidiary constitute a majority of the members of the Board of Directors of the Company or (iii) termination of this Agreement pursuant to its terms, the Company covenants and agrees that unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed) or as set forth in Section 7.2 of the Company -------------------------- Disclosure Schedule or as otherwise expressly contemplated or - ------------------- 28 permitted by this Agreement and except as required in order to comply with the current terms of any Contract provided or made available to Parent on or prior to the date of this Agreement: (a) the business of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and the Company shall use reasonable best efforts to preserve intact its and its subsidiaries present business organizations and goodwill and keep available the services of its and its subsidiaries officers and key employees; (b) neither the Company nor any Company Subsidiary shall, directly or indirectly, do any of the following: (i) sell, pledge, lease, dispose of or encumber (or permit any subsidiary to sell pledge, lease dispose of or encumber) any property or assets, except for sales, leases or other dispositions of inventory and immaterial assets and encumbrances and pledges in the ordinary course of business consistent with past practice; (ii) except as contemplated hereby, amend or propose to amend its certificate or articles of incorporation or by-laws (or comparable organizational documents); (iii) split, combine, or reclassify any shares of its capital stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid by a wholly- owned direct or indirect Company Subsidiary to such Company Subsidiary's parent); (iv) redeem, purchase, acquire or offer to acquire (or permit any subsidiary to redeem, purchase, acquire, or offer to acquire) any shares of its capital stock except in connection with the termination of the employment of any employee in a manner consistent with past practice; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters set forth in this paragraph (b); (c) neither the Company nor any Company Subsidiary shall (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class whether pursuant to the Company Stock Plans or otherwise; provided that the Company may issue shares of Company Common Stock upon exercise of Options that are outstanding on the date hereof and are exercised in accordance with their respective terms as in effect on the date hereof; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof (except an existing wholly-owned subsidiary); (iii) except in the ordinary course of business, consistent with past practice, make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly owned subsidiary of the Company to the Company or any wholly owned subsidiary of the Company; (iv) except in the ordinary course of business, consistent with past practice, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (v) enter into or modify any material lease, contract, agreement or commitment (including, without limitation, any such contract, lease, agreement or commitment of a nature that would be required to be filed as an exhibit to Form 10-K under the Exchange Act), other than contracts for sale, lease or rent of the Company's or the Company Subsidiaries' products in the ordinary course of business consistent with past practice or supply contracts in the ordinary course of business consistent with the practice of the Company during the 12 months preceding the date of this Agreement; (vi) terminate modify, assign, waive, release or relinquish any material contract rights or amend any material rights or claims; (vii) settle or compromise any claim, action, suit or proceeding pending or threatened against the Company, or, if the Company may be liable or obligated to provide indemnification against the Company's directors or officers, before any court, governmental agency or arbitrator, except in the ordinary course of business; provided that nothing shall require any action that might impair or otherwise affect the obligation of any insurance carrier under any insurance policy maintained by the Company; (viii) sell, assign or transfer any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets (it being understood that a license in the ordinary course of business of any asset of the type referred to in this clause (ix) shall not be deemed a sale, assignment or transfer of such assets); (ix) make any change in officer or executive 29 compensation other than in the ordinary course of business; (x) change, in any material way, its accounting principles, practices or methods except as required by GAAP or the rules and regulations promulgated by the SEC; or (xi) agree, in writing or otherwise, to take any of the actions listed in clauses (i) through (x) above; (d) neither the Company nor any Company Subsidiary shall take any action that would knowingly make any representation or warranty of the Company hereunder, untrue or inaccurate in any respect at, or as of any time prior to, the Effective Time, or omit to take any action necessary to prevent any such representation or warranty from being untrue or inaccurate in any such time; (e) each of the Company and the Company Subsidiaries shall use its reasonable best efforts, to the extent not prohibited by the foregoing provisions of this Section 7.2, to maintain its relationships with its customers, licensors, licensees, distributors and others having business dealings with them, and if requested by Parent, the Company shall schedule, and the management of the Company shall participate in, meetings of representatives of Parent with employees of the Company or any Company Subsidiary; and (f) the Company shall cause its management to consult with Parent regarding the Company's cash position and borrowing needs and the Company shall reasonably cooperate with Parent in seeking to operate the business in a way that avoids or minimizes the need to incur borrowings under its existing credit facilities; provided, however, that nothing in this sentence shall require the Company or its management to take any action that in the reasonable opinion of the Company's management would be contrary to the best interests of the Company. ARTICLE VIII ADDITIONAL AGREEMENTS OF THE PARTIES. Section 8.1 Access to Information. --------------------- (a) The Company and the Company Subsidiaries shall and shall cause its and their officers, directors, employees, representatives and agents to, afford to Parent and Subsidiary and each of their accountants, counsel, financial advisors, employees, agents, officers and directors and other representatives (the "Parent Representatives") reasonable access during normal business hours ---------------------- with reasonable notice throughout the period from the date hereof through the Effective Time to all of the Company's properties, books, contracts, commitments and records (including, but not limited to, Tax Returns and records) and, during such period, shall furnish promptly to Parent or the Parent Representatives (i) a copy of each report, schedule and other document filed by the Company pursuant to the requirements of federal or state securities laws or filed by the Company with the SEC in connection with the transactions contemplated by this Agreement, and (ii) such other information concerning the Company's business, properties and personnel as Parent shall reasonably request. Except as required by law, Parent and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Parent Representatives to hold in strict confidence all nonpublic documents and confidential information furnished to Parent, Subsidiary and any Parent Representative in connection with the transactions contemplated by this Agreement in accordance with the confidentiality agreement dated as of May 5, 2000 between the Company and Parent (the "Confidentiality Agreement"). ------------------------- (b) No investigation pursuant to this Section 8.1 shall affect, add to or subtract from any representations or warranties of the parties hereto or the conditions to the obligations of the parties hereto to effect the Merger. 30 Section 8.2 Acquisition Proposals --------------------- (a) Without limiting any of its other obligations under this Agreement, the Company agrees that none of the officers or directors of the Company or any of the Company Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause the Company and the Company Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of the Company Subsidiaries) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer (including without limitation an offer to stockholders of the Company) for a transaction to effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving it or any of the Company Subsidiaries that, if consummated would result in the stockholders of the Company immediately prior to the consummation of such transaction beneficially owning less than 80% of the voting power of the Company immediately after the consummation of such transaction, or any purchase or sale of 50% or more of the consolidated assets (including without limitation stock of the Company Subsidiaries) of the Company and the Company Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, the equity securities of the Company that, if consummated, would result in any person (or the stockholders of such person) beneficially owning securities representing 20% or more of the total voting power of the Company (or of the surviving parent entity in such transaction) or any of the material Company Subsidiaries (any such proposal, offer or transaction, other than a proposal or offer made by Parent or an affiliate thereof, being hereinafter referred to as an "Acquisition Proposal"); (ii) have -------------------- any discussion with or provide any confidential information or data to any person relating to an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; or (iv) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any of the foregoing related to any Acquisition Proposal. (b) Notwithstanding anything in this Agreement to the contrary, the Company or its Board of Directors shall be permitted at any time prior to the time of the Stockholders' Meeting (i) to the extent applicable, (y) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (z) to make disclosure to the Company's stockholders that, in the good faith judgment of the Company's Board of Directors after consultation with outside counsel, is required under applicable law; (ii) to withdraw or change the recommendation of the Company's Board of Directors in respect of the Offer, the Merger or this Agreement or to approve or recommend or to propose publicly to approve or recommend any Acquisition Proposal; (iii) to engage in any discussions or negotiations with, or provide any information to, any person in response to an unsolicited bona fide written Acquisition Proposal ---- ---- by any such person; or (iv) to enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement, with respect to a Superior Proposal (as defined below), if and only to the extent that, in any such case referred to in clause (ii), (iii) or (iv), (A)(x) in the case of clause (ii) above, it has received an unsolicited bona fide written Acquisition Proposal from a third party and the - ---- ---- Company's Board of Directors concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal and (y) in the case of clause (iii) above, the Company's Board of Directors concludes in good faith that such Acquisition Proposal reasonably could be expected (without any change in the amount or type of consideration offered) to constitute a Superior Proposal, (B) in the case of clause (ii), (iii) and (iv) above, the Board of Directors, after consultation with outside counsel, determines in good faith that taking such action is necessary in order for the Board of Directors to comply with its fiduciary duties under applicable law, (C) prior to the Company's Board of Directors taking or authorizing any action described in clause (ii) or clause (iv) above, Parent shall have been afforded the right for at least three business days to amend the terms of the Offer in response to such Acquisition Proposal, (D) prior to providing any information or data to any 31 person, the Board of Directors receives from such person an executed confidentiality agreement having provisions that are customary in such agreements, as advised by counsel, and no less restrictive of such person than the Confidentiality Agreement, and (E) prior to providing any information or data to any person or entering into discussions or negotiations with any person, the Company notifies Parent promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any inquiries, proposals or offers. (c) The Company agrees that it will, and will cause its officers, directors and representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly request each person that within the past 13 months has executed a confidentiality agreement in connection with its consideration of a possible Acquisition Proposal to return (or, if required under the provisions of the confidentiality agreement, destroy) all confidential information previously furnished to such Person. The Company will promptly inform its directors, officers, key employees, agents and representatives of the obligations undertaken in this Section 8.2. (d) Nothing in this Section 8.2 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article VIII hereof) or (ii) affect any other obligation of the Company. The Company shall not submit to the vote of its stockholders any Acquisition Proposal other than the Merger. (e) As used in this Agreement, "Superior Proposal" means a bona fide ----------------- ---- ---- written proposal made by a person other than Parent or an affiliate of Parent which the Company's Board of Directors concludes in good faith (following receipt of the advice of its financial advisors and after consultation with outside legal counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (i) would, if consummated, result in a transaction that is more favorable to the Company's stockholders (in their capacities as stockholders), from a financial point of view, than the transactions contemplated by this Agreement and (ii) is probable of completion. (f) The Company shall (i) notify Parent promptly (and in any event within one business day) after receipt of any Acquisition Proposal (or any indication that any person is considering marking an Acquisition Proposal) or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its subsidiaries by any person that may be considering making, or has made, an Acquisition Proposal, (ii) notify Parent promptly of any material change to any such Acquisition Proposal, indication or request and (iii) upon reasonable request by Parent, provide Parent with all material information about any such Acquisition Proposal, indication or request. Section 8.3 Expenses and Fees. Whether or not the Merger is consummated, ----------------- all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, except that the expenses incurred in connection with the filing, printing and mailing of the Proxy Statement and the Offer Documents shall be borne equally by Parent and the Company. Section 8.4 Directors' and Officers' Indemnification. ---------------------------------------- (a) Parent agrees that all rights to indemnification now existing in favor of any current or former director or officer of the Company as provided in the Company's Certificate of Incorporation or Bylaws or in a written agreement between any such person and the Company in effect on the date hereof shall survive the Merger and shall continue in full force and effect until the expiration of all applicable statutes 32 of limitation. Parent also agrees to (or to cause the Surviving Corporation to) indemnify all current and former directors and officers of the Company to the fullest extent the Company would be permitted by Delaware Law to indemnify them with respect to all acts and omissions arising out of such individuals' service as officers or directors of the Company or any of its subsidiaries or as trustees, fiduciaries or administrators of any plan for the benefit of employees occurring prior to the Effective Time. Without limitation of the foregoing, in the event any such person is or becomes involved in any capacity in any action, proceeding or investigation in connection with any matter, including, without limitation, the transactions contemplated by this Agreement, occurring prior to, and including, the Effective Time, Parent will (or will cause the Surviving Corporation to) pay such person's reasonable legal and other expenses of counsel selected by such person and reasonably acceptable to Parent (including the cost of any investigation, preparation and settlement) incurred in connection therewith promptly after statements therefor are received by Parent; provided, however, that neither Parent nor the Surviving Corporation shall, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified persons (it being understood, however, that if any indemnified person or counsel for any indemnified person determines in good faith that there is, under applicable standards of professional conduct, a conflict on any significant issue between two or more indemnified persons, then each such indemnified person may engage separate counsel at the expense of Parent and the Surviving Corporation). Parent shall be entitled to participate in the defense of any such action or proceeding, and counsel selected by the indemnified person shall, to the extent consistent with their professional responsibilities, cooperate with Parent and any counsel designated by Parent (it being understood that no indemnified person shall be liable for any settlement effected without his express written consent). Parent shall pay all reasonable fees and expenses, including attorneys' fees, that may be incurred by any indemnified person in enforcing the indemnity and other obligations provided for in this Section. (b) Parent agrees that the Company and, from and after the Effective Time, the Surviving Corporation shall cause to be maintained in effect for not less than six years from the Effective Time the current policies of directors' and officers' liability insurance maintained by the Company; provided that the Surviving Corporation may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to such persons; and provided, further, that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Effective Time; and provided, further, that the Surviving Corporation shall not be required to pay an annual premium in excess of 200% of the last annual premium paid by the Company prior to the date hereof; and if the Surviving Corporation is unable to obtain the insurance required by this Section, it shall obtain as much comparable insurance as possible for an annual premium equal to such maximum amount. Section 8.5 Employee Benefits. ----------------- (a) Following the Effective Time, Parent shall honor, and cause the Surviving Corporation to honor, each Company Plan and the related funding arrangements of such Company Plan in accordance with its terms and shall interpret such Company Plan in accordance with the past practice of the Company. Without limiting the generality of the foregoing, Parent shall honor, and cause the Surviving Corporation to honor, all vacation, personal and sick days accrued by employees of the Company and its subsidiaries under any plans, policies, programs and arrangements of the Company and its ERISA Affiliates immediately prior to the Effective Time. From the Effective Time until December 31, 2001, Parent shall provide, and cause the Surviving Corporation to provide, employee benefits under employee benefit plans to the employees and former employees of the Company and its subsidiaries that are in the aggregate no less favorable than those provided to such persons pursuant to Company Plans on the date of this Agreement (excluding equity and equity-based compensation); provided, however, that the provisions of this Section 8.5(a) will not prohibit Parent or the Surviving Corporation from requiring normal and 33 customary employee contributions with respect to medical and other similar employee benefit plans. Nothing herein shall prohibit any changes to any Company Plan that are (i) required by law (including, without limitation, any applicable qualification requirements of Section 401(a) of the Code); (ii) necessary as a technical matter to reflect the transactions contemplated hereby; or (iii) required for the Surviving Corporation to provide for or permit investment in its securities or Parent's securities. Furthermore, nothing herein shall require Parent to continue any particular Company Plan or prevent the amendment or termination thereof (subject to the maintenance, in the aggregate, of the benefits as provided in this Section 8.5(a) and to the obligation to provide benefits as provided above). (b) With respect to any employee benefit plans in which any employees of the Company or its subsidiaries first become eligible to participate, on or after the Effective Time, and in which the Company employees did not participate prior to the Effective Time, Parent shall: (i) waive all pre- existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the employees of the Company and its subsidiaries under any such new plans in which such employees may be eligible to participate after the Effective Time, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the analogous Company Plan; (ii) provide each employee of the Company and its subsidiaries with credit for any co-payments and deductibles paid prior to the Effective Time (to the same extent such credit was given under the analogous Company Plan prior to the Effective Time) in satisfying any applicable deductible or out-of-pocket requirements under any such new plan in which such employees may be eligible to participate after the Effective Time; (iii) recognize all service of such employees for all purposes (including, without limitation, purposes of eligibility to participate, vesting, and, except with respect to grandfathered provisions contained in Parent's health plans applicable to employees hired prior to September 30, 1991, entitlement to benefits, and, except with respect to defined benefit pension plans, benefit accrual) in any such new plan in which such employees may be eligible to participate after the Effective Time, and (iv) with respect to flexible spending accounts, provide each employee of the Company and its subsidiaries with a credit for any salary reduction contributions made thereto and a debit for any expenses incurred thereunder with respect to the plan year in which the Effective Time occurs; provided, that the foregoing shall not apply to the extent it would result in duplication of benefits. Section 8.6 Litigation. The Company shall give Parent the opportunity to ---------- participate in the defense or settlement of any shareholder litigation against the Company and its directors relating to the Offer, the Merger and the other transactions contemplated by this Agreement until the consummation of the Offer, and thereafter, Parent shall direct the defense of such litigation and shall give the Company and its directors an opportunity to participate in such litigation; provided, however, that no settlement shall be agreed to prior to the consummation of the Offer without Parent's consent, which consent shall not be unreasonably withheld or delayed; and provided further that no settlement requiring a payment or an admission of any wrongdoing by a director shall be agreed to without such director's consent. ARTICLE IX CONDITIONS Section 9.1 Conditions to Each Party's Obligation to Effect the Merger. The ---------------------------------------------------------- respective obligations of each party to effect the Merger are subject to the satisfaction or waiver, where permissible, at or prior to the Effective Time, of each of the following conditions: (a) if required by the DGCL, this Agreement shall have been duly adopted by the requisite affirmative vote of the stockholders of the Company in accordance with applicable law and the Certificate of Incorporation and Bylaws of the Company; 34 (b) no statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction shall have been enacted, entered, promulgated, issued or enforced by any court or other Governmental Authority which is in effect and has the effect of prohibiting, restraining or enjoining the consummation of the Merger except to the extent the prohibition, restraint or injunction (i) arises under any antitrust, competition or similar laws, rules or regulations of a jurisdiction outside of the United States or Germany or (ii) (A) arises under other laws, rules or regulations of a jurisdiction outside of the United States or Germany, (B) relates to or arises out of the failure to obtain or make any consent, registration, approval, permit, authorization or notice and (C) would not reasonably be expected to result in (1) a Company Material Adverse Effect; (2) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (3) any other material non-financial liability or disability (x) of the Company or its material subsidiaries; (y) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (z) of any immaterial corporate affiliate of Parent or of immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (4) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation); and (c) Subsidiary shall have accepted for payment and paid for shares of Company Common Stock pursuant to the Offer, provided that Parent and Subsidiary may not assert this condition if the failure to accept such shares of Company Common Stock for payment was in breach of this Agreement or related to a breach of this Agreement by Parent or Subsidiary. ARTICLE X TERMINATION, AMENDMENT AND WAIVER Section 10.1 Termination. This Agreement may be terminated and the Merger ----------- may be abandoned at any time before the Effective Time, whether before or after approval of this Agreement and the Merger by the stockholders of the Company (if required by applicable law): (a) by mutual written consent, duly authorized by the Boards of Directors of Parent and, subject to Section 1.4(c), the Company; (b) by either the Company or Parent if (i) any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction of or by any court or other Governmental Authority of competent jurisdiction which makes the consummation of the Merger illegal shall be in effect and shall have become final and nonapppealable except to the extent such illegality (A) arises under any antitrust, competition or similar laws, rules or regulations of a jurisdiction outside of the United States or Germany, or (B) arises under other laws, rules or regulations of a jurisdiction outside of the United States or Germany, and (in the case of this clause (B) only) either (1) would not reasonably be expected to result (in the case of a termination by Parent) in (w) a Company Material Adverse Effect; (x) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (y) any other material non-financial liability or disability (I) of the Company or its material subsidiaries; (II) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (III) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (z) any material liability, exposure or disability, or any 35 criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation) or (2) would not reasonably be expected to result (in the case of a termination by the Company) in any material liability, exposure or disability or any criminal liability of or to any officer or director of the Company or any of its subsidiaries; (ii) the Offer (as extended and re-extended in accordance with Section 1.1) shall have expired without the acceptance for payment of shares of Company Common Stock thereunder; or (iii) the purchase of the shares of Company Common Stock pursuant to the Offer (as extended and re- extended in accordance with Section 1.1) shall not have occurred on or prior to the close of business on December 31, 2000 (the "Outside Date") (provided that if on the Outside Date, the ------------ conditions set forth in either clause (ii) or clause (iii) of the first paragraph of Annex A, or any other condition relating to antitrust or ------- competition law clearance with respect to the Offer or the Merger, has not been satisfied, then the Outside Date may be extended by either the Company or Parent until March 31, 2001 (the "Extended Outside Date"); unless, in the case of any ---------------------- of clause (i), clause (ii) or clause (iii) above, such event has been caused by a breach of this Agreement by the party seeking such termination; (c) by Parent, if before the purchase of shares of Company Common Stock pursuant to the Offer, the Board of Directors of the Company or any committee thereof shall (i) have recommended an Acquisition Proposal or failed to publicly announce its recommendation against an Acquisition Proposal within five business days after the first public announcement of the Acquisition Proposal; (ii) have withdrawn, modified in a manner adverse to Parent or amended in a manner adverse to Parent its approval or recommendation of the Offer, this Agreement or the Merger or failed to reaffirm its approval or recommendation of the Offer or the Merger or the adoption of the Agreement upon Parent's reasonable written request; (iii) have executed a letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement providing for consummation of an Acquisition Proposal with a third party; or (iv) have resolved to do any of the foregoing; (d) by Parent, if before the purchase of shares of Company Common Stock pursuant to the Offer, (i) any of the Company's representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or (except for the representation contained in Section 5.7(b)) shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date) such that the condition set forth in clause (c)(i) of Annex A would not be satisfied or (ii) any of the Company's covenants ------- contained in this Agreement shall have been breached such that the condition set forth in clause (c)(i) of Annex A would not be satisfied if, in either case the ------- Company shall have failed to cure such breach within 30 days after written notice of the breach; provided, however, that if an inaccuracy in the Company's representations and warranties or a breach of a covenant by the Company is not curable by the Company prior to the Outside Date or the Extended Outside Date, whichever is applicable, no 30 day notice shall be required; (e) by the Company prior to the acceptance for purchase of shares pursuant to the Offer if (i) there shall have been a breach in any material respect of any representation or warranty in this Agreement of Parent or Subsidiary, (ii) Parent or Subsidiary shall have failed to commence the Offer within the time required under this Agreement, or (iii) Parent or Subsidiary shall not have performed or complied with any other material covenant or material agreement contained in this Agreement, which breach, in the case of both clause (i) and clause (ii) above, shall not have been cured prior to 20 business days following notice of such breach to Parent and Subsidiary by the Company; or (f) by the Company at any time after the Initial Expiration Date and prior to the acceptance for purchase of shares pursuant to the Offer, if (i) at any time after the date of this Agreement, a third party shall have disclosed, announced, submitted or made a Superior Proposal, and (ii) the Company's Board of Directors has determined in good faith after consultation with outside counsel that termination of this Agreement by the Company is necessary in order for the Company's Board of Directors to comply with 36 its fiduciary duties; provided, however, that the Company must give Parent two - business days prior written notice of the Company's intention to terminate this Agreement pursuant to this clause (f). Section 10.2 Effect of Termination. --------------------- (a) In the event of termination of this Agreement by either Parent or the Company pursuant to the provisions of Section 10.1, this Agreement shall forthwith become void and there shall be no liability or further obligation on the part of the Company, Parent, Subsidiary or their respective officers or directors (except for obligations in this Section 10.2(a), in the second sentence of Section 8.1(a) and in Sections 8.3 and this Section 10.2, all of which shall survive the termination). Nothing in this Section 10.2 shall relieve any party hereto from liability for any willful and intentional breach of any covenant or other agreement of such party contained in this Agreement. (b) Parent and the Company agree that (i) if Parent shall terminate this Agreement pursuant to Section 10.1(c) or if the Company shall terminate this Agreement pursuant to Section 10.1(f), or (ii) if (A) this Agreement shall have been terminated pursuant to Sections 10.1(b)(ii), 10.1(b)(iii) or 10.1(d), (B) if the termination was pursuant to Section 10.1(b)(ii) or Section 10.1(b)(iii), between the date of this Agreement and the termination of this Agreement, a third party (other than Parent or an affiliate of Parent) shall have publicly announced an Acquisition Proposal that is pending on the date of termination of this Agreement, (C) if the termination was pursuant to Section 10.1(d), between the date of this Agreement and the date of termination, an Acquisition Proposal was received by the Company (whether or not publicly announced) and the Acquisition Proposal was not withdrawn, by bona fide action of the third party who made the Acquisition Proposal, and (D) within 270 days after the termination of this Agreement, either (1) the Company enters into a definitive acquisition agreement providing for an Acquisition Proposal or (2) an Acquisition Proposal is consummated, then the Company shall pay to Parent a fee equal to $27,500,000 (it being understood that for purposes of this Section 10.2(b), all references in the definition of "Acquisition Proposal" to "20%" and "80%" shall be deemed to be "50%"). (c) Any payment required to be made pursuant to Section 10.2(b) shall be made to Parent not later than three business days after the termination of this Agreement or in the case of any payment required to be made by the Company under Section 10.2(b)(ii), three business days after the execution of the definitive agreement referred to therein, as applicable. All payments under this Section 10.2 shall be made by wire transfer of immediately available funds to an account designated by the party entitled to receive payment. (d) The Company and Parent agree that any payment required to be made pursuant to Section 10.2(b) shall represent liquidated damages and not a penalty. The provisions of this Section 10.2 shall not be the exclusive remedy for any breach of any representation, warranty, covenant or agreement contained in this Agreement. Section 10.3 Amendment. This Agreement may not be amended except by action --------- taken by the parties' respective Boards of Directors or duly authorized committees thereof and then only by an instrument in writing signed on behalf of each of the parties hereto and in compliance with applicable law and Section 1.4(c). Subject to Section 1.4(c) and applicable law, such amendment may take place at any time prior to the Closing Date and whether before or after the Company Stockholders' Approval is obtained; provided, however, that after the Company Stockholders' Approval is obtained, no amendment may be made which would reduce the amount or change the kind of consideration to be received by the holders of Company Common Stock upon consummation of the Merger or alter or change any of the terms and conditions of this Agreement if such alteration or change would adversely effect the holders of any class or series of securities of the Company. 37 Section 10.4 Extension; Waiver. At any time prior to the Effective Time, ----------------- subject to Section 1.4(c), any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document, certificate or writing delivered pursuant hereto, or (c) waive compliance by the party with any of the agreements or conditions contained herein. Any agreement on the part of any party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing 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 XI GENERAL PROVISIONS Section 11.1 Non-Survival of Representations and Warranties. None of the ---------------------------------------------- representations, warranties, covenants or agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time, and after the Effective Time, none of the Company, Parent, Subsidiary or their respective officers or directors shall have any further obligation with respect thereto except for the representations, warranties or agreements that by their terms apply or are to be performed in whole in part after the Effective Time. Section 11.2 Notices. All notices and other communications hereunder shall ------- be in writing and shall be deemed given if delivered personally, mailed by registered or certified mail, postage prepaid return receipt requested) or sent via facsimile to the parties at the following addresses: If to Parent or Subsidiary, to: Siemens Corporation 153 East 53rd Street New York, New York 10022-4611 Telecopier: (212) 258-4490 Attention: E. Robert Lupone, Esq. with a copy to: Clifford Chance Rogers & Wells LLP 200 Park Avenue New York, New York 10166 Telecopier: (212) 878-8375 Attention: John A. Healy, Esq. and Siemens Aktiengesellschaft Medical Engineering Henkestr. 127 Postfach 32 40 91050 Erlangen Telecopier: (011) 49 (9131) 84-3754 Attention: Prof. Dr. Erich Reinhardt and 38 Siemens Aktiengesellschaft Legal Services Erlangen Werner-von-Siemens-Strafe 50 91052 Erlangen Telecopier: (011) 49 (9131)72-8667 Attention: Robert Kirschbaum If to the Company, to: Acuson Corporation 1220 Charleston Road Mountain View, California 94039 Telecopier: (650) 943-7206 Attention: Samuel H. Maslak with a copy to: Cooley Godward LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 Telecopier: (650) 849-7400 Attention: Keith A. Flaum, Esq. or at such other address as any party hereto shall have designated by notice in writing to the other parties hereto. Notices shall be deemed duly received (a) on the date of delivery if delivered personally, (b) two business days after delivery if delivered by telecopy or facsimile (if confirmed by receipt) or (c) on the tenth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. Section 11.3 Governing Law. This Agreement shall be governed in all ------------- respects including validity, interpretation and effect, by the laws of the State of Delaware applicable to contracts executed and to be performed wholly within such state. Section 11.4 Third Party Beneficiaries. This Agreement shall be binding ------------------------- upon and inure solely to the benefit of each party hereto, and except as set forth in this Agreement, nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement; provided that the provisions of Section 8.4 hereof are for the benefit of, and shall be enforceable by, each of the current and former directors and officers of the Company. Section 11.5 Severability. If any term or other provision of this Agreement ------------ is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. 39 Section 11.6 Assignment. Neither this Agreement nor any of the rights, ---------- interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties. Any assignment in violation of the preceding sentence shall be null and void. 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. Section 11.7 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. It is accordingly agreed that the parties shall be entitled to specific performance of the terms hereof, this being in addition to any other remedy to which they are entitled at law or in equity. Section 11.8 Counterparts. This Agreement may be executed in two or more ------------ counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Section 11.9 Entire Agreement. This Agreement (including Annex A and the ---------------- documents and instruments referred to herein) constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior agreements and understandings, both oral and written, among the parties with respect to the subject matter of this Agreement. No representations, warranty, promise, inducement or statement of intention has been made by any party that is not embodied in this Agreement or such other documents, and none of the parties shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. [SIGNATURE PAGE FOLLOWS] 40 IN WITNESS WHEREOF, Parent, Subsidiary and the Company have caused this Agreement and Plan of Merger to be signed by their respective officers as of the date first written above. SIEMENS CORPORATION By: /s/ Michael W. Schiefen ----------------------- Name: Michael W. Schiefen Title: Vice President By: /s/ E. Robert Lupone -------------------- Name: E. Robert Lupone Title: Vice President, General Counsel and Secretary SIGMA ACQUISITION CORP. By: /s/ Michael W. Schiefen ----------------------- Name: Michael W. Schiefen Title: President By: /s/ E. Robert Lupone -------------------- Name: E. Robert Lupone Title: Vice President ACUSON CORPORATION By: /s/ Samuel H. Maslak -------------------- Name: Samuel H. Maslak Title: Chairman of the Board and Chief Executive Officer 41 ANNEX A to Agreement and Plan of Merger ---------------------------- Conditions to the Offer. Notwithstanding any other provision of the Offer ----------------------- or the Agreement, in addition to (and except as set forth in the proviso to the third sentence of Section 1.1(b) of the Agreement, not in limitation of) Subsidiary's rights pursuant to the Agreement to extend and amend the Offer in accordance with the Agreement, and subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act) relating to Subsidiary's obligation to pay for or return tendered shares of Company Common Stock after termination of the Offer, Subsidiary shall not be required to accept for payment or pay for and may delay the acceptance for payment of or, subject to Rule 14e-1(c) of the Exchange Act, the payment for, any tendered shares of Company Common Stock not theretofore accepted for payment or paid for, and Subsidiary may amend the Offer (subject to Section 1.1 of the Agreement) if (i) a number of shares of Company Common Stock that, together with any shares of Company Common Stock owned by Parent or any affiliate of Parent, represents at least a majority of the sum of (y) the total number of shares of outstanding Company Common Stock plus (z) the total number of shares of Company Common Stock issuable on or prior to the Outside Date (or the Extended Outside Date if the Outside Date has been extended in accordance with Section 10.1(b)(iii)) upon the exercise of any outstanding Options, warrants, conversion privileges or similar rights with respect to Company Common Stock that are currently vested or that will vest on or prior to the Outside Date or Extended Outside Date, as the case may be, shall not have been validly tendered prior to the expiration of the Offer and not withdrawn or otherwise acquired by Parent or any of its affiliates prior to the expiration of the Offer ("Minimum Condition"); (ii) any applicable ----------------- waiting period under the HSR Act shall not have expired or been terminated; (iii) the approval period with respect to the Bundeskartellamt shall not have been terminated; or (iv) at any time on or after the date of the Agreement and prior to the time of acceptance of such shares of Company Common Stock for payment pursuant to the Offer or the payment therefor, any of the following conditions has occurred and continues to exist through the time of acceptance for payment or payment: (a) there shall be pending any suit, action, or proceeding that is reasonably likely to succeed, brought by a Governmental Authority against Parent or any affiliate of Parent or the Company or any affiliate of the Company (other than any suit, action or proceeding relating to antitrust, competition or other similar laws, rules or regulations of a jurisdiction outside of the United States or Germany), (i) challenging the acquisition by Parent or Subsidiary of the shares of Company Common Stock, seeking to make illegal, materially delay, make materially more costly or otherwise directly or indirectly restrain or prohibit the making or consummation of the Offer and the Merger or the performance of any of the other transactions contemplated by this Agreement or seeking to obtain from the Company, Parent or Subsidiary any damages or penalties, that in any case referred to in this clause (i) for which the standard in the preamble to this paragraph is met is reasonably likely to result in consequences that are materially adverse to Parent, the Company or their respective material affiliates; (ii) seeking to prohibit or materially limit the ownership or operation by the Company, Parent or any of their respective subsidiaries or affiliates of any of the businesses or assets of the Company, Parent or any of their respective subsidiaries or affiliates, or to compel the Company, Parent or any of their respective subsidiaries or affiliates to dispose of or hold separate all or any material portion of the businesses or assets of the Company or Parent, as a result of the Offer, the Merger or any of the other transactions contemplated by this Agreement; (iii) seeking to impose material limitations on the ability of Parent or Subsidiary to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock accepted for payment pursuant to the Offer including, without limitation, the right to vote the shares of Company Common Stock accepted for payment by it on all matters properly presented to the stockholders of the Company; (iv) seeking to prohibit Parent or any of its subsidiaries or affiliates from effectively controlling in any material respect the business or operations of the Company or its subsidiaries; (v) requiring divestiture by Subsidiary or any of its affiliates of any shares of Company Common Stock; or (vi) which otherwise is reasonably likely to have a Company Material Adverse Effect; (b) there shall be any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction (including with respect to competition or antitrust matters) enacted, entered, promulgated, issued or enforced, or any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction which has been proposed by the relevant legislative or regulatory body and is reasonably likely to be enacted, entered, promulgated, issued or enforced with respect to or deemed applicable to, (i) Parent, the Company or any of their respective subsidiaries or affiliates or (ii) the Offer or the Merger or any of the other transactions contemplated by this Agreement, by any court or other Governmental Authority, other than applicable waiting periods under the HSR Act as specified in the introductory paragraph above or the approval period applicable to the Bundeskartellamt and other than any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order or injunction of any court or other Governmental Authority relating to antitrust, competition or other similar laws, rules or regulations of a jurisdiction outside of the United States or Germany, in any case, that have resulted or would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in clauses (i) though (vi) of paragraph (a) above; (c) (i) the representations and warranties of the Company contained in the Agreement shall not be true and correct (without giving effect in any such representation or warranty (other than in Section 5.7(b)) to any Company Material Adverse Effect standard, qualification or exception contained therein but after giving effect to any other materiality standard, qualification or exception contained therein) at the date hereof and as of the consummation of the Offer with the same effect as if made at and as of the consummation of the Offer (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that for purposes of this clause (i), none of the following, to the extent arising after the date of the Agreement, shall be deemed to constitute a Company Material Adverse Effect and none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur: (A) any effect resulting from the announcement or pendency of the Offer or the Merger (including, without limitation, any cancellations of or delays in customer orders or shipments, any disruption in supplier, distributor, partner or similar relationships or any loss of employees); (B) any effect resulting from compliance with the terms of, or the taking of any action required by, the Agreement; or (C) any effect resulting from the matters disclosed in Section 5.7(b) of the Company Disclosure ---------------------------------------- Schedule; (ii) the Company shall have failed to perform or comply in all - -------- material respects with its covenants and obligations contained in the Agreement, which failure to perform has not been cured within ten business days after the giving of written notice to the Company; or (iii) there shall have occurred since the date of the Agreement any events or changes which, individually or in the aggregate, constitute or would reasonably be expected to have a Company Material Adverse Effect; provided, however, that for purposes of this section only, none of the following, to the extent arising after the date of the Agreement, shall be deemed to constitute a Company Material Adverse Effect, and none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur: (a) any effect resulting from any material fluctuations in currency prices; (b) any effect relating to conditions generally affecting companies operating in the ultrasound industry, in the same general manner and to the same general extent; (c) any effect resulting from the announcement or pendency of the Offer or the Merger (including, without limitation, any cancellations of or delays in customer orders or product shipments, any disruption in supplier, distributor, partner or similar relationships or any loss of employees); (d) any effect resulting from compliance with the terms of, or the taking of any action required by, the Agreement; or (e) any effect resulting from the matters disclosed in Section 5.7(b) of the Company Disclosure Schedule. In addition, any ------------------------------------------------- failure by the 2 Company following the date of the Agreement to meet internal projections or forecasts or published revenue or earnings predictions, in and of itself, shall not be deemed to constitute a Company Material Adverse Effect (it being understood that such failure may nonetheless be evidence of other events that have resulted in the occurrence of a Company Material Adverse Effect); (d) the Board of Directors of the Company or any committee thereof shall (i) have recommended an Acquisition Proposal or failed to publicly announce its recommendation against an Acquisition Proposal within five business days after the first public announcement of the Acquisition Proposal; (ii) have withdrawn, modified in a manner adverse to Parent or amended in a manner adverse to Parent its approval or recommendation of the Offer, this Agreement or the Merger or failed to reaffirm its approval or recommendation of the Offer or the Merger or the adoption of the Agreement upon Parent's reasonable written request; (iii) have executed a letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement providing for consummation of an Acquisition Proposal with a third party; or (iv) have resolved to do any of the foregoing; (e) the Agreement shall have been terminated in accordance with its terms, or any event shall have occurred which gives Parent or Subsidiary the right to terminate the Agreement or not consummate the Merger; (f) there shall have occurred and be continuing (i) any general suspension of trading in, or limitation in prices for securities on any national securities exchange or in the over-the-counter market (other than as a result of market circuit-breakers or other similar procedures); (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory); (iii) a commencement of war or armed hostilities or other national or international calamity directly or indirectly involving the United States, which has a significant adverse effect on the functioning of financial markets in the United States; or (iv) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof; (g) there shall not have been obtained any third party non-governmental consent that is required to be obtained in connection with the Offer or the Merger that (i) is not listed in Section 5.4(b) of the Company Disclosure ---------------------------------------- Schedule and (ii) does not arise solely by reason of a contract or other - -------- agreement entered into after the date of the Agreement with the express written consent of Parent, unless the failure to obtain such consent, individually or in the aggregate with other such failures, would not reasonably be expected to result in (A) a Company Material Adverse Effect; (B) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (C) any other material non-financial liability or disability (1) of the Company or its material subsidiaries; (2) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (3) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (D) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation); (h) (i) any consent, registration, approval, permit, authorization or notice required to be obtained or made by the Company, Parent or Subsidiary or any of their respective affiliates from or with any Governmental Authority (other than with respect to any U.S. or foreign antitrust, competition or other similar law, rule or regulation) in connection with the execution, delivery and performance of the Agreement, the making or consummation of the Offer or the consummation of the Merger shall not have been obtained or made, unless the failure to obtain or make any such consent, registration, approval, permit, authorization or notice, individually or in the aggregate, would not reasonably be expected to 3 result in (A) a Company Material Adverse Effect; (B) the imposition on the Company or any of its subsidiaries or Parent or any of its affiliates of fines, penalties or other charges, the assessment against any such person of damages, or the incurrence by any such person of any other loss, liability or injury, in an aggregate amount in excess of $8,000,000; (C) any other material non- financial liability or disability (1) of the Company or its material subsidiaries; (2) of Parent or any material corporate affiliate of Parent or any material business unit of Parent or any such material corporate affiliate; or (3) of any immaterial corporate affiliate of Parent or of any immaterial business unit of Parent or any such immaterial corporate affiliate to the extent such liability or disability is material to Parent and its affiliates taken as a whole; or (D) any material liability, exposure or disability, or any criminal liability of or to any officer or director of Parent or any of its corporate affiliates (including the Surviving Corporation); or (i) it shall have been publicly disclosed that any Person, entity or "group" (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of more than 20% of the then-outstanding shares of Company Common Stock, through the acquisition of stock, the formation of a group or otherwise. Subject to the provisions of Section 1.1 of the Agreement, the foregoing conditions are solely for the benefit of Parent and Subsidiary and may be waived by either Parent or Subsidiary, in whole or in part at any time and from time to time, in the sole discretion of Parent and Subsidiary. The failure by Parent and Subsidiary 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 which may be asserted at any time and from time to time. 4 -----END PRIVACY-ENHANCED MESSAGE-----