sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 3)1
TAB PRODUCTS CO.
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(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
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(Title of Class of Securities)
873197107
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(CUSIP Number)
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 10, 2001
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box |_|.
NOTE. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. SEE Rule 13d-7
for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 36 Pages)
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1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, SEE
the NOTES).
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CUSIP No. 873197107 13D Page 2 of 36 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STEEL PARTNERS II, L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 515,900
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
515,900
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
515,900
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
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14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 873197107 13D Page 3 of 36 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WARREN G. LICHTENSTEIN
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 515,900
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
-0-
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
515,900
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
515,900
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.9%
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14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 873197107 13D Page 4 of 36 Pages
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The following constitutes Amendment No. 3 ("Amendment No. 3") to the
Schedule 13D filed by the undersigned. This Amendment No. 3 amends the Schedule
13D as specifically set forth.
Item 2 is hereby amended to add the following:
On August 2, 2001, the Fund terminated the Services Agreement
with Steel Partners Services under which Steel Partners Services previously
managed on a discretionary basis certain of the Fund's assets, including 70,000
Shares of the Issuer (the "Fund Shares"). Immediately upon termination of the
Services Agreement, the Reporting Persons ceased to be beneficial owners of the
70,000 Fund Shares. Accordingly, Steel Partners Services is no longer a
Reporting Person.
Item 3 is hereby amended and restated as follows:
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The aggregate purchase price of the 515,900 Shares of Common
Stock owned by Steel Partners II is $1,905,603. The Shares of Common Stock owned
by Steel Partners II were acquired with partnership funds.
Item 4 is hereby amended to add the following paragraphs:
On September 10, 2001, the Reporting Persons and their
affiliates Steel Partners, L.L.C. and Steel Partners Services, Ltd. (the "Steel
Parties") entered into an Agreement with the Issuer (the "Agreement"), a copy of
which is attached hereto as Exhibit 4. The Agreement relates to the pending
solicitation by a stockholder unaffiliated with the Steel Parties for election
to the Issuer's Board of Directors at the 2001 Annual Meeting of Stockholders
(the "Annual Meeting") scheduled to be held on October 16, 2001 (the "Proxy
Contest"). Pursuant to the terms of the Agreement, Warren Lichtenstein has been
appointed to the Issuer's Board of Directors and will be added to the Issuer's
slate of directors at the Annual Meeting. The Issuer's Board of Directors has
been expanded from five to seven members to include Mr. Lichtenstein as well as
another stockholder (the "Other Stockholder") unaffiliated with the Steel
Parties. At the Annual Meeting, Mr. Lichtenstein has agreed to vote the Shares
owned by the Reporting Persons in favor of the election of the Issuer's slate of
director nominees. The Issuer's bylaws have also been amended pursuant to the
Agreement as follows: (1) effective as of February 1, 2002, holders of at least
25% of the outstanding shares of the Issuer will be permitted to call a special
meeting of stockholders, which must be held within 55 days of a valid demand;
(2) effective immediately, the Issuer's Board is prohibited from forming an
executive committee to act on behalf of the Board without a majority Board vote
that includes whichever of
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CUSIP No. 873197107 13D Page 5 of 36 Pages
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Mr. Lichtenstein or the Other Stockholder is still serving on the Board; (3)
effective immediately, the Issuer's Board is prohibited from increasing its size
above seven directors as long as Mr. Lichtenstein and the Other Stockholder are
directors of the Issuer; (4) effective immediately, none of the bylaw amendments
described in subsections (1) through (3) of this paragraph, nor the amendment
described in this subsection (4), shall be repealed or amended by the Issuer's
Board other than by a majority vote that includes whichever of Mr. Lichtenstein
or the Other Stockholder is still serving on the Board; and (5) effective
immediately, if the Issuer increases the number of directors to be elected at a
stockholder meeting after a stockholder has previously nominated one or more
candidates for election to the Board at that meeting in accordance with the
Issuer's advance notice bylaw, that stockholder will be entitled to nominate an
equal number of additional candidates within ten days following the Issuer's
public announcement of the increase. In addition to these bylaw amendments, the
Issuer also amended the Issuer's stockholder rights plan so that the stock
purchase rights issued thereunder will be triggered if, without prior Board
approval, a person or group becomes the beneficial owner of 20% of the Issuer's
outstanding shares. The previous trigger level of the rights was 15%. The
amendment also confirms that the act of demanding or participating in a demand
for a special meeting of stockholders will not by itself trigger the rights.
On September 11, 2001, the Issuer issued a press release
announcing the execution of the Agreement (the "Press Release"), a copy of which
is attached hereto as Exhibit 5. Reference is made to Exhibit 5 for the complete
text of the Press Release.
Items 5(a)-(b) are hereby amended and restated as follows:
The aggregate percentage of Shares of Common Stock reported
owned by each person named herein is based upon 5,187,457 Shares outstanding,
which is the total number of Shares of Common Stock outstanding as reported in
the Issuer's Annual Report on Form 10-K for the fiscal year ended May 31, 2001.
As of the close of business on September 11, 2001, Steel
Partners II beneficially owned 515,900 Shares of Common Stock, constituting
approximately 9.9% of the Shares outstanding. Mr. Lichtenstein beneficially
owned 515,900 Shares, constituting approximately 9.9% of the Shares outstanding.
Mr. Lichtenstein has sole voting and dispositive power with respect to the
515,900 Shares owned by Steel Partners II by virtue of his authority to vote and
dispose of such Shares. All of such Shares were acquired in open-market
transactions, except the 70,000 Fund Shares which were transferred to Steel
Partners II directly from the account of the Fund after the Services Agreement
was terminated.
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CUSIP No. 873197107 13D Page 6 of 36 Pages
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Item 5(c) is hereby amended to add the following:
(c) Schedule A annexed hereto lists all transactions in the
Issuer's Common Stock by the Reporting Persons and Steel Partners Services since
the filing of Amendment No. 2.
Item 6 is hereby amended to add the following paragraph:
On September 10, 2001, the Steel Parties entered into the
Agreement, a copy of which is attached hereto as Exhibit 4. See Item 4 for a
brief description of the Agreement.
Item 7 is hereby amended to add the following items as exhibits to the
Schedule 13D:
4. Agreement by and among TAB Products Co., Steel Partners
II, L.P., Steel Partners, L.L.C., Steel Partners Services,
Ltd. and Warren Lichtenstein, dated as of September 10,
2001.
5. Press Release dated September 11, 2001.
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CUSIP No. 873197107 13D Page 7 of 36 Pages
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SIGNATURES
----------
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: September 17, 2001 STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C.
General Partner
By: /s/ Warren G. Lichtenstein
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Warren G. Lichtenstein
Chief Executive Officer
/s/ Warren G. Lichtenstein
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WARREN G. LICHTENSTEIN
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CUSIP No. 873197107 13D Page 8 of 36 Pages
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SCHEDULE A
Transactions in the Shares Since the Filing of
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Amendment No. 2 to the Schedule 13D
-----------------------------------
Shares of Common Stock Price Per Date of
Purchased / (Sold) Share($) Purchase / (Sale)
-------------------- ---------- -------------------
STEEL PARTNERS II, L.P.
-----------------------
70,000 4.11143 8/06/01
STEEL PARTNERS SERVICES, LTD.
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(70,000) 4.11000 (8/06/01)
WARREN LICHTENSTEIN
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None
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CUSIP No. 873197107 13D Page 9 of 36 Pages
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EXHIBIT LIST
Exhibit Page
------- ----
1. Joint Filing Agreement, dated May 23, --
2001 (previously filed).
2. Joint Filing Agreement, dated June 14, --
2001 (previously filed).
3. Letter from Steel Partners II, L.P. to --
Gary W. Ampulski, President and Chief
Executive Officer of TAB Products Co.,
dated June 28, 2001 (previously filed).
4. Agreement by and among TAB Products 10 to 33
Co., Steel Partners II, L.P., Steel
Partners, L.L.C., Steel Partners
Services, Ltd. and Warren Lichtenstein,
dated as of September 10, 2001.
5. Press Release dated September 11, 2001. 34 to 36
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CUSIP No. 873197107 13D Page 10 of 36 Pages
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AGREEMENT
This Agreement is made as of September 10, 2001 by and among the
following parties (collectively, the "Parties"):
(1) Tab Products Co., a Delaware corporation (the "Company"); and
(2) Steel Partners II, L.P., a Delaware limited partnership, Steel
Partners, L.L.C., a Delaware limited liability company, Steel
Partners Services, Ltd., a Delaware corporation, and Warren G.
Lichtenstein, a natural person and a citizen of the United
States of America ("Mr. Lichtenstein" and, collectively with
the three entities listed in this paragraph (2), the "WL
Parties").
RECITALS
--------
A. The WL Parties are collectively the beneficial owners of a total
of 515,900 shares (the "WL Shares") of the Common Stock, par value $0.01 per
share, of the Company ("Company Common Shares"), representing approximately 9.9%
of the outstanding shares of Company Common Stock;
B. Thaddeus S. Jaroszewicz ("Mr. Jaroszewicz") and the Company are
engaged in a proxy contest (the "Proxy Contest") in connection with the election
of members of the Board of Directors of the Company (the "Company Board") at the
2001 annual meeting of stockholders of the Company (the "2001 Annual Meeting,"
which term includes any and all postponements and adjournments of the original
meeting scheduled for October 16, 2001) by reason of Mr. Jaroszewicz having
nominated himself and four other nominees (collectively, the "Jaroszewicz
Nominees") for election to the Company Board in place of the current members of
the Company Board, who have been nominated for reelection by the Company Board's
Nominating Committee (the "Current Company Nominees");
C. The WL Parties have a choice as to how to vote the WL Shares in
the Proxy Contest and are willing to commit to vote the WL Shares in favor of
the Current Company Nominees, and enter into certain related commitments
regarding the WL Shares, in consideration for certain commitments from the
Company, all as more particularly set forth in this Agreement;
D. The existing Company Board has unanimously determined that it is
in the best interests of all of the stockholders of the Company to authorize the
Company to enter into, and perform its obligations under, this Agreement,
provided that, concurrently herewith, an agreement is entered into (the "Other
Agreement") by and among the Company and certain other beneficial owners of
shares of Company Common Stock (together with the Company, the "Other Agreement
Parties"), including David W. Wright (the "Other Additional Director"), who are
unaffiliated with the WL Parties;
E. Subject to the terms and conditions of this Agreement, the
Company Board has determined to increase its size from five to seven members by
the addition of Mr. Lichtenstein and the Other Additional Director as additional
directors (each, an "Additional Director"),
1
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CUSIP No. 873197107 13D Page 11 of 36 Pages
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Mr. Lichtenstein being so added pursuant to this Agreement and the Other
Additional Director being added pursuant to the Other Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the
parties contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. ADDITION OF MR. LICHTENSTEIN TO THE COMPANY BOARD AND ITS
COMMITTEES AND TO THE SLATE OF COMPANY NOMINEES
1.1 The Company represents and warrants to the WL Parties that
the Company Board, in connection with its approval of this Agreement, and
subject to the execution and delivery of this Agreement by all Parties, has
taken all action necessary to: (a) expand the size of the Company Board,
effective automatically upon the execution and delivery of this Agreement by all
Parties, from five to seven; (b) cause Mr. Lichtenstein to be added to (i) the
Company Board, and (ii) the slate of Current Company Nominees for election to
the Company Board at the 2001 Annual Meeting (the Current Company Nominees, Mr.
Lichtenstein and the Other Additional Director being sometimes referred to in
this Agreement collectively as the "Company Nominees"); and (c) cause one or the
other of the Additional Directors (to be determined by the Chairman of the Board
after consultation with each of the Additional Directors and the chairs of each
of the Current Board's current standing committees) to be added to each of such
standing committees (namely, the Audit Committee, the Compensation Committee,
the Nominating Committee and the Employee Benefits Committee). Mr. Lichtenstein
shall serve as a member of the Company Board until the final certification of
the vote on the election of directors at the 2001 Annual Meeting and, if he is
elected at the 2001 Annual Meeting, he shall serve for the same term as all
other nominees elected to the Company Board at the 2001 Annual Meeting, which
term shall expire when he or his successor is duly elected at the 2002 annual
meeting of stockholders of the Company and qualified or upon his earlier death,
resignation, retirement, disqualification or removal, all as provided in Article
II of the Company's Second Amended and Restated Bylaws (the "Company Bylaws").
During his term of office on the Company Board, Mr. Lichtenstein shall have the
same rights, powers, privileges, access to information, compensation and
entitlements as all other members of the Company Board and of any committees
thereof on which he serves. In connection with the 2001 Annual Meeting, the
Company shall solicit proxies on behalf of all Company Nominees.
1.2 Mr. Lichtenstein hereby confirms his consent to (i) his
immediate appointment to the Company Board pursuant to Section 1.1(b)(i) of this
Agreement, (ii) his addition to the slate of Company Nominees standing for
election at the 2001 Annual Meeting together with the other Company Nominees
pursuant to Section 1.1(b)(ii) of this Agreement, and (iii) his agreement to
serve as a member of the Company Board, if elected at the 2001 Annual Meeting,
and Mr. Lichtenstein consents to the inclusion in the Company's proxy materials
for the 2001 Annual Meeting (the "Company Proxy Materials," which term shall
include both the Company's preliminary and definitive proxy statement and all
other solicitation material issued by the Company) of his consent and agreement
as aforesaid.
1.3 Mr. Lichtenstein agrees that, in addition to the information
he has provided to the Company in connection with the negotiation and execution
of this Agreement, he
2
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CUSIP No. 873197107 13D Page 12 of 36 Pages
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shall provide to the Company such additional information as it may from time to
time reasonably request for inclusion in the Company Proxy Materials or
otherwise in order for it to carry out its disclosure obligations under the
Securities Acts.
1.4 If Mr. Lichtenstein is elected to the Company Board at the
2001 Annual Meeting and if at least a majority of the nominees elected at the
2001 Annual Meeting consists of Company Nominees, the Company Board shall cause
an Additional Director to serve on each standing and special committee of the
Company Board during the applicable Additional Director's term of office on the
Company Board, except to the extent that a majority of the other members of the
Company Board determine in good faith, after consultation with the Company's
outside counsel and taking into account its advice, that such Additional
Director is legally disqualified from serving on any such committee by reason of
an actual conflict of interest or a failure to meet a qualification criterion
imposed by applicable law or the rules of the American Stock Exchange. If both
Additional Directors are elected to the Company Board at the 2001 Annual
Meeting, the selection of which of them shall serve on any individual committee
of the Company Board pursuant to the preceding sentence shall be made by the
Chairman of the Board after consultation with each of the Additional Directors
and the chairs of each of such committees.
1.5 If, at any time, Mr. Lichtenstein becomes unable or
unwilling to serve, or for any other reason ceases to serve, as a member of the
Company Board, the Company Board shall have no obligation to nominate, elect or
appoint a successor or replacement to him.
2. CERTAIN AMENDMENTS TO THE COMPANY BYLAWS AND THE COMPANY'S
STOCKHOLDER RIGHTS PLAN
2.1 The Company represents and warrants to the WL Parties that
the Company Board, in connection with its approval of this Agreement and subject
to the execution and delivery of this Agreement by all Parties, has taken all
action necessary to amend the Company Bylaws in the following respects:
(a) Article I, Section 2 of the Company Bylaws shall be
amended, effective as of February 1, 2002, to permit special meetings of the
stockholders to be called, for the purpose or purposes prescribed in the
request, upon the request of holders of record of at least 25% of the
outstanding shares of Company Common Stock, as more fully set forth in Exhibit A
to this Agreement;
(b) Article II, Section 1 of the Company Bylaws shall be
amended, effective immediately, to provide that during the period that either of
the Additional Directors is serving on the Company Board, the Company Board
shall not increase the size of the Company Board above a number that is equal to
the sum of five plus the number of Additional Directors then serving, as more
fully set forth in Exhibit B to this Agreement;
(c) Article III, Section 1 of the Company Bylaws shall be
amended, effective immediately, to provide that the Company Board shall not form
an executive committee to act on behalf of the Board unless the Company Board,
by a majority vote that includes, for so long as either Additional Director is
3
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CUSIP No. 873197107 13D Page 13 of 36 Pages
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serving on the Company Board, the affirmative vote of such Additional Director
and, if both are then serving, the vote of each of them, as more fully set forth
in Exhibit C to this Agreement;
(d) Article IX of the Company Bylaws shall be amended,
effective immediately, to provide that none of the amendments referred to in
Sections 2.1(a), 2.1(b) and 2.1(c) of this Agreement, nor the amendment referred
to in this Section 2.1(d), shall be repealed or amended by the Company Board
other than by a majority vote that includes, for so long as either Additional
Director is serving on the Company Board, the affirmative vote of such
Additional Director and, if both are then serving, the vote of each of them, as
more fully set forth in Exhibit D to this Agreement; and
(e) Article II, Section 11 of the Company Bylaws shall be
amended, effective immediately, to provide that if the Company increases the
number of directors to be elected at a stockholder meeting after a stockholder
has nominated one or more candidates for election to the Company Board at such
meeting in accordance with the requirements of said Article II, Section 11, such
stockholder shall be entitled to nominate an equal number of additional
candidates within 10 days following the Company's public announcement of such
increase, as more fully set forth in Exhibit E to this Agreement;
2.2 The Company represents and warrants to the WL Parties that
the Company Board, in connection with its approval of this Agreement, and
subject to the execution and delivery of this Agreement by all Parties, has
taken all action necessary to approve and authorize the execution and delivery
of an amendment (the "Rights Agreement Amendment"), in the form of Exhibit F to
this Agreement, to the Rights Agreement dated as of October 24, 1996 between the
Company and the Rights Agent (the "Rights Agreement"), and that, promptly
following the execution and delivery of this Agreement by all Parties, the
Company shall, and shall direct ChaseMellon Shareholder Services, L.L.C. as
Rights Agent (the "Rights Agent") to, execute and deliver the Rights Agreement
Amendment, to be effective immediately upon execution and delivery thereof by
the Company and the Rights Agent, providing (among other things) that (a) the
phrase "20%" shall be substituted for the phrase "15%" in all places where such
words appear in the Rights Agreement and (b) the mere act of demanding, or
participating with other persons in demanding, a special meeting of stockholders
under the amendment to the Company Bylaws made pursuant to Section 2.1(a) of
this Agreement shall not trigger the exerciseability of the share purchase
rights issued under the Rights Agreement.
3. CERTAIN AGREEMENTS RELATING TO COMPANY VOTING SECURITIES
Provided that the Company is not in material default under this
Agreement, each of the WL Parties agree that, at the 2001 Annual Meeting, such
WL Party shall vote, or cause to be voted, all Company Voting Securities
Beneficially owned by such WL Party as of the record date for the 2001 Annual
Meeting in favor of the election of all Company Nominees to the Company Board.
Other than as set forth in the immediately preceding sentence, each of the WL
Parties shall be free to vote, or cause to be voted, all Company Voting
Securities Beneficially owned by such WL Party in any manner it chooses.
4
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CUSIP No. 873197107 13D Page 14 of 36 Pages
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4. SPECIAL RELEASES, COVENANTS NOT TO SUE, AND INDEMNIFICATION
4.1 The Company: (a) fully releases, remises, exonerates forever
and unconditionally discharges each of the WL Parties and each of their
respective Affiliates, Associates, Representatives, employees, agents and
advisors (each, a "Stockholder Releasee") from any and all liability and
responsibility for any and all Company Claims (as hereinafter defined); and (b)
covenants and agrees not to participate in, commence or permit (to the extent
within its control) the assertion or commencement of any demand, allegation,
litigation, proceeding or action relating to any Company Claim, and not to
encourage, assist or cooperate with any other Person in pursuing or asserting
any Company Claim, against any Stockholder Releasee. As used in this Agreement,
"Company Claim" means any actual or alleged liability, claim, action, suit,
cause of action, obligation, debt, controversy, promise, contract, lien,
judgment, account, reckoning, bond, bill, covenant, agreement, demand of any
kind or nature, loss, cost, damage, penalty or expense (including, without
limitation, reasonable attorneys' fees and expenses, and the cost of
investigation and litigation), whether in law or in equity, whether known or
unknown, whether matured or unmatured and whether foreseen or unforeseen, that
the Company may or could have had or now or hereafter may have, for, upon, or by
reason of, any matter, cause or thing whatsoever resulting from, arising out of,
relating to, connected in any way with, or alleged, suggested or mentioned in
connection with, (i) the Proxy Contest or any part or aspect thereof, (ii) any
action taken, or statement made, in connection with the Proxy Contest, (iii) the
acquisition or ownership of any shares of Company Common Stock by any of the
Stockholder Releasees, or (iv) any action, failure to act, representation,
event, transaction, occurrence or other subject matter resulting from, arising
out of, relating to, connected in any way with, or alleged, suggested or
mentioned, in connection with the foregoing.
4.2 Each of the WL Parties: (a) fully releases, remises,
exonerates and forever and unconditionally discharges the Company and each of
its Affiliates, Associates, Representatives, employees, agents and advisors
(each, a "Company Releasee") from any and all liability and responsibility for
any and all Stockholder Claims (as hereinafter defined); and (b) covenants and
agrees not to participate in, commence or permit (to the extent within its
respective control) the assertion or commencement of any demand, allegation,
litigation, proceeding or action relating to any Stockholder Claim, and not to
encourage, assist or cooperate with any other Person in pursuing or asserting
any Stockholder Claim against any Company Releasee. As used in this Agreement,
"Stockholder Claim" means any actual or alleged liability, claim, action, suit,
cause of action, obligation, debt, controversy, promise, contract, lien,
judgment, account, reckoning, bond, bill, covenant, agreement, demand of any
kind or nature, loss, cost, damage, penalty or expense (including, without
limitation, reasonable attorneys' fees and expenses, and the costs of
investigation and litigation), whether in law or in equity, whether known or
unknown, whether matured or unmatured and whether foreseen or unforeseen, that
any Stockholder may or could have had or now or hereafter may have, for, upon,
or by reason of, any matter, cause or thing whatsoever resulting from, arising
out of, relating to, connected in any way with, or alleged, suggested or
mentioned in connection with, (i) the Proxy Contest or any part or aspect
thereof, (ii) any action taken, or statement made, in connection with the Proxy
Contest, or (iii) any action, failure to act, representation, event,
transaction, occurrence or other subject matter resulting from, arising out of,
relating to, connected in any way with, or alleged, suggested or mentioned in
connection with the foregoing or with the actions, omissions, decisions and
5
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CUSIP No. 873197107 13D Page 15 of 36 Pages
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conduct of the Company, the Company Board or any of its committees or any other
Company Releasee prior to the execution of this Agreement.
4.3 The Company, in connection with its release and covenant
contained in Section 5.1 of this Agreement, and each of the WL Parties, in
connection with its release and covenant contained in Section 4.2 of this
Agreement, hereby waives the provisions of 1542 of the California Civil Code
(and any corresponding provision of the applicable laws of any other
jurisdiction), but only to the extent it applies to its respective release
contained in the applicable such Section. Section 1542 of the California Civil
Code provides as follows:
A general release does not extend the claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected settlement
with the debtor.
4.4 The Company expressly acknowledges that each Stockholder
Releasee that is not a WL Party is an intended third party beneficiary of its
release and covenant contained in Section 4.1. Each of the WL Parties
acknowledges that each Company Releasee other than the Company is an intended
third party beneficiary of its release and covenant contained in Section 4.2.
Each Party acknowledges that any claim determined, in a final nonappealable
judgment or order of a court of competent jurisdiction, to have been based
primarily on intentional fraud shall not be released under this Section 5.
4.5 The Company shall indemnify and hold harmless each of the
Stockholder Releasees from and against any and all debts, obligations and other
liabilities, losses, damages, claims, fines, fees, penalties, interest
obligations, deficiencies, and expenses (including, without limitation, amounts
paid in settlement but only if such settlement is approved in advance by the
Company, such approval not to be unreasonably withheld), court costs, reasonable
out-of-pocket fees and expenses of counsel (provided such counsel is reasonably
acceptable to the Company and subject to the limitation that only one counsel
shall be engaged by all Stockholder Releasees except to the extent that multiple
representation would give rise to a disqualifying conflict of interest), and
other reasonable out-of-pocket expenses of litigation, whether or not such
litigation is resolved against the applicable Stockholder Releasee
(collectively, "Damages"), solely to the extent arising directly from any
litigation, whether at law or in equity, instituted against any Stockholder
Releasee by a third party on the basis of the actions of such Stockholder
Releasee with respect to the Proxy Contest or in authorizing, approving,
executing, delivering, and/or performing this Agreement (a "Covered Claim"),
except to the extent to which it is determined, in a final nonappealable
judgment or order of a court of competent jurisdiction, that any Damages were
primarily the result of the bad faith or willful misconduct of, or the breach of
this Agreement by, any Stockholder Releasee. The Company shall advance all
expenses (to the extent they constitute Damages) incurred by a Stockholder
Releasee in connection with a Covered Claim pending the final disposition
thereof but only upon the basis of (a) a written understanding executed by such
Stockholder Releasee, in a form reasonably acceptable to the Company, to repay
all of such expenses to the Company in the event it is determined, in accordance
with the immediately preceding sentence, that such expenses did not constitute
Damages, and (b) documentary evidence that such expenses have been incurred.
6
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CUSIP No. 873197107 13D Page 16 of 36 Pages
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5. CERTAIN REPRESENTATIONS AND WARRANTIES
5.1 The Company represents and warrants to each of the WL
Parties that: (a) the Company's execution, delivery and performance of this
Agreement have been approved by the Company Board and do not violate its
Certificate of Incorporation, the Company Bylaws or any agreement to which it is
a party; and (b) this Agreement constitutes the Company's valid and binding
obligation, enforceable against it in accordance with the terms thereof, except
as such enforcement may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by doctrines
relating to the availability of equitable remedies.
5.2 Each of the WL Parties represents and warrants to the
Company that: (a) if the WL Party making such representation and warranty is not
a natural person, its execution, delivery and performance of this Agreement has
been approved by its respective general partner, managing member, board of
directors, trustee or other governing body or authority, as the case may be, and
does not violate its respective organizational or constituent document; (b) its
execution, delivery and performance of this Agreement does not violate any
agreement to which it is a party; (c) this Agreement constitutes its valid and
binding obligation, enforceable against it in accordance with the terms thereof,
except as such enforcement may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by doctrines
relating to the availability of equitable remedies; (d) it has consulted with
counsel of its choice in connection with its decision to enter into and be bound
by this Agreement; and (e) Recital A to this Agreement is a true statement of
the current aggregate beneficial ownership of Company Common Stock on the part
of the WL Parties and, to its best knowledge, after due inquiry, none of its
respective Affiliates Beneficially owns any other Company Voting Securities.
6. CERTAIN ANNOUNCEMENTS AND OTHER DISCLOSURES
6.1 As soon as reasonably practicable following the execution of
this Agreement: (a) the Company shall issue a press release in the form of
Exhibit G to this Agreement (the "Press Release"), which the Company shall file,
together with a copy of this Agreement, with the SEC under Rule 14a-12
promulgated pursuant to the 1934 Act; (b) the Company shall file with the SEC a
Current Report on Form 8-K to disclose this Agreement in a manner consistent, in
all material respects, with the Press Release, the contents of which Current
Report shall be subject to the approval of each of the other Parties (not to be
unreasonably withheld); and (c) the WL Parties shall file with the SEC a
Schedule 13D amendment to disclose this Agreement in a manner consistent, in all
material respects, with the Press Release, the contents of which amendment shall
be subject to the approval of the Company (not to be unreasonably withheld).
6.2 As soon as reasonably practicable following the execution of
this Agreement, the Company shall revise the amended preliminary Company Proxy
Materials it
7
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CUSIP No. 873197107 13D Page 17 of 36 Pages
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filed with the SEC on August 31, 2001 to reflect this Agreement and the
information furnished to it by the other Parties for inclusion in such revised
Company Proxy Materials under Section 1.3 of this Agreement. Such revised
Company Proxy Materials shall be submitted to the WL Parties for their review
and approval (not to be unreasonably withheld). Such revised Company Proxy
Materials shall include such information as the Company may reasonably request
in order to enable Mr. Lichtenstein to be included as a Company participant in
the Proxy Contest and to solicit proxies on behalf of the Company Board in
accordance with clause (b) of Section 6.3 of this Agreement. In the event that
the SEC comments on such revised Company Proxy Materials in any respect relevant
to the additional disclosures contemplated by this Section 6.2, the Company
shall share the applicable comments with the WL Parties, which shall hold such
information in confidence, and the Company and the WL Parties shall cooperate
with each other in responding thereto.
6.3 Without limiting the generality of the final sentence of
Section 1.1 of this Agreement, Mr. Lichtenstein shall have the same opportunity
as is afforded all of the other members of the Company Board (a) to review and
discuss, in advance, any SEC filing, press release or stockholder communications
proposed to be made or issued by the Company in connection with the Proxy
Contest, and (b) to solicit proxies on behalf of the Company Board in accordance
with the policies and procedures established, and written solicitation material
approved, by the Company Board.
6.4 None of the WL Parties shall make any public statement
(including any statement in a filing with the SEC or any other governmental
agency) regarding this Agreement or any event occurring prior to the date hereof
that is inconsistent with, or otherwise contrary to, the Press Release.
6.5 Any public statement (including any statement in any filing
with the SEC or any other governmental agency) by any Party regarding this
Agreement or any event occurring prior to the date of this Agreement that is not
otherwise prohibited by this Section 6 shall be made in compliance with
applicable securities laws and consistently with any fiduciary duties such Party
owes to the Company.
7. CERTAIN DEFINITIONS
In addition to the other definitions contained elsewhere in this
Agreement, the following terms shall have the meanings specified below for the
purposes hereof:
"Affiliate" has the meaning set forth in the 1934 Act.
"Associate" has the meaning set forth in the 1934 Act.
"Beneficially own" has the meaning set forth in Rule 13d-3
promulgated under the 1934 Act; provided, however, that for purposes of this
Agreement, any option, warrant, right, conversion privilege or arrangement to
purchase, acquire or vote Company Voting Securities, regardless of the time
period during, or the time at which, it may be exercised, and regardless of the
consideration paid, shall be deemed to give the holder thereof beneficial
ownership of the Company Voting Securities to which it relates.
8
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CUSIP No. 873197107 13D Page 18 of 36 Pages
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"Company Voting Securities" means all classes of capital stock of
the Company which are then entitled to vote generally in the election of
directors and any securities exchanged for such classes of capital stock and any
securities convertible into or exchangeable or exercisable for such classes of
capital stock.
"1933 Act" means the Securities Act of 1933, as amended, and the
regulations promulgated by the SEC under such statute.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the regulations promulgated by the SEC under such statute.
"Person" means a natural person or any legal, commercial or
governmental entity, including, but not limited to, a corporation, partnership,
joint venture, trust, limited liability company, group acting in concert or any
person acting in a representative capacity.
"SEC" means the United States Securities and Exchange Commission.
"Securities Acts" means the 1933 Act and the 1934 Act.
8. MISCELLANEOUS
8.1 This Agreement constitutes the entire agreement of the
Parties with respect to its subject matter and supersedes any and all prior
representations, agreements or understandings, whether written or oral, between
or among any of them with respect to such subject matter. This Agreement may be
amended only by a written agreement duly executed by the Parties.
8.2 This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to its
conflict of law principles. Exclusive jurisdiction to resolve any dispute
arising under or in connection with this Agreement is hereby conferred on the
Delaware Chancery Court (or, if such Court determines that it lacks jurisdiction
over the particular dispute, any other applicable court of the State of
Delaware) or, if the dispute involves issues of federal law or over which the
Delaware Chancery Court (or such other court of the State of Delaware) lacks or
declines jurisdiction, on the United States Federal District Court for the
District of Delaware. The Parties hereby submit to the exclusive jurisdiction of
each of such courts for the resolution of any such dispute.
8.3 This Agreement may not be assigned by any Party without the
prior written consent of the other Parties. This Agreement shall be binding
upon, and inure to the benefit of, the respective successors and permitted
assigns of the Parties. Except as expressly set forth in Section 4, this
Agreement shall confer no rights or benefits upon any Person other than the
Parties.
8.4 Any waiver by any Party of a breach of any provision of this
Agreement shall not be deemed to be a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement.
9
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CUSIP No. 873197107 13D Page 19 of 36 Pages
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8.5 This Agreement may be executed in counterparts, each of
which shall constitute an original but all of which shall together constitute a
single instrument.
8.6 The WL Parties covenant that they shall each use their
commercially reasonable efforts to cause their respective Affiliates to comply
with Sections 3 and 4 of this Agreement.
8.7 Each of the other WL Parties hereby appoints Mr.
Lichtenstein as the authorized representative of such WL Party for all purposes
of this Agreement (including, without limitation, the giving of binding
approvals and waivers) and the Company shall be entitled to deal with Mr.
Lichtenstein accordingly.
8.8 Notwithstanding anything to the contrary in this Agreement,
none of the Parties shall have any obligations under this Agreement unless and
until the Other Agreement has been executed and delivered by all of the Other
Agreement Parties. However, nothing in this Agreement is intended to create any
joint and several obligations, or any agency or group, as between any one or
more of the WL Parties, on the one hand, and any one or more of the Other
Agreement Parties, on the other hand.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
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CUSIP No. 873197107 13D Page 20 of 36 Pages
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IN WITNESS WHEREOF, this Agreement has been executed by each of
the Parties, through their respective duly authorized representative, as of the
date first above written.
TAB PRODUCTS CO. STEEL PARTNERS II, L.P.
By: /s/ Gary W. Ampulski By: Steel Partners, LLC.
----------------------- Its General Partner
Gary W. Ampulski
President and
Chief Executive Officer
By:/s/ Warren G. Lichtenstein
-----------------------------
Warren G. Lichtenstein
Chief Executive Officer
STEEL PARTNERS, L.L.C.
By:/s/ Warren G. Lichtenstein
----------------------------------
Warren G. Lichtenstein
Chief Executive Officer
STEEL PARTNERS SERVICES, LTD.
By:/s/ Warren G. Lichtenstein
----------------------------------
Warren G. Lichtenstein
Chief Executive Officer
WARREN G. LICHTENSTEIN
/s/ Warren G. Lichtenstein
-------------------------------------
Warren G. Lichtenstein
11
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CUSIP No. 873197107 13D Page 21 of 36 Pages
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EXHIBIT A
---------
FORM OF AMENDED VERSION OF ARTICLE I, SECTION 2 OF THE COMPANY BYLAWS
(SECTION 2.1(a))
Effective immediately, Article I, Section 2 of the Company Bylaws
shall be amended by the addition of the following two paragraphs following the
current paragraph:
Effective automatically on February 1, 2002, the
preceding paragraph of this Section 2 shall be
replaced in its entirety with this paragraph and the
following paragraph. Special meetings of the
stockholders may be called for any purpose or purposes
prescribed in the notice of the meeting, only (a) by
the Board of Directors pursuant to a resolution
adopted by a majority of the total number of
authorized directors (whether or not there exists any
vacancies in previously authorized directorships at
the time any such resolution is presented to the Board
of Directors for adoption), or (b) by the holders of
record not less than 25% of all shares entitled to
cast votes at the meeting, voting together as a single
class, and shall be held at such place, on such date
and at such time as the Board of the Directors may
fix. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the
notice.
Upon request in writing sent by registered mail to the
president or chief executive officer by any
stockholder or stockholders entitled to request a
special meeting of stockholders pursuant to the
immediately preceding paragraph of this Section 2, and
containing the information required pursuant to
Article I, Section 7, and Article II, Section 11, the
Board of Directors shall determine a place and time
for such meeting, which time shall be not less than 45
nor more than 55 days after the receipt of such
request, and a record date for the determination of
stockholders entitled to vote at such meeting shall be
fixed by the Board of Directors, in advance, which
shall not be more than 60 days nor less than 10 days
before the date of such meeting. Following such
receipt of a request and determination by the
Secretary of the validity thereof, it shall be the
duty of the Secretary to present the request to the
Board of Directors, and upon Board action as provided
in this Section 2, to cause notice to be given to the
stockholders entitled to vote at such meeting, in the
manner set forth in Section 3 hereof, that a meeting
will be held at the place and time so determined, for
such purposes, as well as any purpose or purposes
determined by the Board of Directors.
A-1
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CUSIP No. 873197107 13D Page 22 of 36 Pages
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EXHIBIT B
---------
FORM OF AMENDED VERSION OF ARTICLE II, SECTION 1 OF THE COMPANY BYLAWS
(SECTION 2.1(b))
Effective immediately, Article II, Section 1 of the Company Bylaws
shall be amended by the addition of the following sentence immediately following
the first sentence thereof and immediately before what is currently the second
sentence thereof:
Notwithstanding the preceding sentence, during the
period that either Warren G. Lichtenstein or David W.
Wright (each, an "Additional Director") is serving on
the Board of Directors, the number of directors shall
not be increased above the number that is equal to the
sum of five plus the number of Additional Directors
then serving.
B-1
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CUSIP No. 873197107 13D Page 23 of 36 Pages
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EXHIBIT C
---------
FORM OF AMENDED VERSION OF ARTICLE III, SECTION 1 OF THE COMPANY BYLAWS
(SECTION 2.1(c))
Effective immediately, Article III, Section 1 of the Company Bylaws
shall be amended to read in its entirety as follows:
SECTION 1. COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors, by a vote of a majority of the
whole Board, may from time to time designate
committees of the Board, with such lawfully delegable
powers and duties as it thereby confers, to serve at
the pleasure of the Board and shall, for those
committees and any others provided for herein, elect a
director or directors to serve as the member or
members, designating, if it desires, other directors
as alternate members who may replace any absent or
disqualified member at any meeting of the committee.
Any committee so designated may exercise the power and
authority of the Board of Directors to declare a
dividend, to authorize the issuance of stock or to
adopt a certificate of ownership and merger pursuant
to Section 253 of the Delaware General Corporation Law
if the resolution which designates the committee or a
supplemental resolution of the Board of Directors
shall so provide. In the absence or disqualification
of any member of any committee and any alternate
member in his place, the member or members of the
committee present at the meeting and not disqualified
from voting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint
another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified
member. Notwithstanding the foregoing, the Board of
Directors shall not form an executive committee to act
on behalf of the Board of Directors other than by a
vote of a majority of the directors then in office
(whether or not there exist any vacancies in
previously authorized directorships at the time any
such resolution is presented to the Board) that
includes, for so long as either Additional Director is
serving on the Board of Directors, the affirmative
vote of the Additional Director then serving or, if
both Additional Directors are then serving, both
Additional Directors.
C-1
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CUSIP No. 873197107 13D Page 24 of 36 Pages
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EXHIBIT D
---------
FORM OF AMENDED VERSION OF ARTICLE IX OF THE COMPANY BYLAWS
(SECTION 2.1(d))
Effective immediately, Article IX of the Company Bylaws shall be
amended to read in its entirety as follows:
The Board of Directors is expressly empowered to
adopt, amend or repeal Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the
Corporation by the Board of Directors shall require
the approval of a majority of the total number of
authorized directors (whether or not there exist any
vacancies in previously authorized directorships at
the time any resolution providing for adoption,
amendment or repeal is presented to the Board);
provided, however, that none of (i) Article I, Section
2, (ii) the second sentence of Article II, Section 1,
(iii) the second sentence of Article III, Section 1,
or (iv) this proviso to the second sentence of this
Article IX shall be amended other than by a vote of a
majority of the directors then in office (whether or
not there exist any vacancies in previously authorized
directorships at the time any such resolution is
presented to the Board) that includes, for so long as
either of the Additional Directors is serving on the
Board of Directors, the affirmative vote of the
Additional Director then serving or, if both
Additional Directors are then serving, both Additional
Directors. The stockholders shall also have power to
adopt, amend or repeal the Bylaws of the Corporation.
In addition to any vote of the holders of any class or
series of stock of this Corporation required by law or
by these Bylaws, the affirmative vote of the holders
of at least 66 2/3 percent of the voting power of all
of the then-outstanding shares of the capital stock of
the Corporation entitled to vote generally in the
election of directors, voting together as a single
class, shall be required to adopt, amend or repeal
Article VIII or IX of these Bylaws.
D-1
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CUSIP No. 873197107 13D Page 25 of 36 Pages
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EXHIBIT E
---------
FORM OF AMENDMENT TO ARTICLE II, SECTION 11 OF THE COMPANY BYLAWS
(SECTION 2.1(e))
Effective immediately, the following paragraph shall be added as the
penultimate paragraph of Article II, Section 11 of the Company Bylaws:
In the event a stockholder has duly nominated pursuant
to this Section 11, at an annual or special meeting at
which Directors are to be elected, one or more persons
for election as Director and the Board of Directors
subsequently increases the number of Directors to be
elected at such annual or special meeting, such
stockholder may nominate an additional person or
person(s) (as the case may be) for election to such
additional position(s) as are specified in the
Corporation's notice relating to the additional
nominees, provided that such stockholder shall deliver
a supplemental notice, containing the same information
with respect to such additional nominee(s) as is
required by paragraph (a) of this Bylaw with respect
to stockholder nominees generally to the Secretary at
the principal executive offices of the Corporation not
later than the tenth day following the day on which a
public announcement (including by way of a publicly
available filing with the Securities Exchange
Commission) is first made of the additional nominees
proposed by the Corporation to be elected at such
meeting. In no event shall the public announcement of
such additional nominees commence a new time period
for the giving of a stockholder's notice under
subsection (a) other than as provided herein.
E-1
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CUSIP No. 873197107 13D Page 26 of 36 Pages
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EXHIBIT F
---------
FORM OF AMENDMENT TO THE COMPANY'S STOCKHOLDER RIGHTS PLAN
(SECTION 2.2)
TAB PRODUCTS CO.
and
MELLON INVESTOR SERVICES LLC
Rights Agent
AMENDMENT NO. 1
Dated as of September ___, 2001
to
RIGHTS AGREEMENT
Dated as of October 24, 1996
F-1
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CUSIP No. 873197107 13D Page 27 of 36 Pages
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This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment") is dated
as of September _____, 2001 between TAB Products Co., a Delaware corporation
(the "Company"), and Mellon Investor Services LLC (f/k/a ChaseMellon Shareholder
Services, L.L.C.) (the "Rights Agent").
WITNESSETH:
The Company and the Rights Agent (the "Parties") entered into a
Rights Agreement dated as of October 24, 1996 (the "Original Rights Agreement").
As of the date of this Agreement, the rights issued pursuant to the Original
Rights Agreement are redeemable. The Parties wish to amend the Original Rights
Agreement in the manner set forth below. The Company's Board of Directors has
approved this Amendment and authorized its execution.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the Parties agree as follows:
1. EFFECTIVENESS OF THIS AMENDMENT. This Amendment is executed
pursuant to the first sentence of Section 27 of the Original Rights Agreement.
The Company, by its execution of this Amendment, hereby directs the Rights
Agent, pursuant to such sentence of Section 27, to execute this Amendment. This
Amendment shall take effect immediately upon the execution hereof by the Company
and the Rights Agent.
2. DEFINED TERMS. All capitalized terms used but not defined in this
Amendment shall have the meanings assigned to them in the Original Rights
Agreement. For the resolution of doubt, the Company hereby clarifies that no
Person shall be deemed an Acquiring Person solely by reason of such Person, as a
holder of record or Beneficial Owner of shares of Common Stock making, or
conferring on another Person a proxy or other authority to make, or
participating with one or more other persons in making or directing another
Person as holder of record to make, a demand under Article I, Section 2 of the
Company's Amended and Restated By Laws (or any successor provision) for a call
of a special meeting of stockholders of the Company.
3. NO OTHER PROVISIONS AFFECTED. Except to the extent expressly
amended by this Amendment, all of the provisions of the Original Rights
Agreement shall remain in full force and effect, unaffected by this Amendment.
4. AMENDMENT TO SECTION 1(a) OF THE ORIGINAL RIGHTS AGREEMENT. The
Original Rights Agreement is hereby amended by substituting the term "20%" for
the term "15%" in each place where the term "15%" is used in the Original Rights
Agreement and the exhibits thereto, including, without limitation, all places in
which such phrase is used in Sections 1(a) and 3 of the Original Rights
Agreement.
5. REFERENCES TO THE ORIGINAL RIGHTS AGREEMENT. All references in
the Original Rights Agreement and the exhibits thereto to the Rights Agreement
or any specific provision thereof (including references that use the terms
"hereto" and "hereof"), as well as in the legends affixed to certificates issued
for Common Stock pursuant to Section 3(d) of the Original Rights Agreement,
shall, without any specific references expressly and individually to any of the
foregoing amendments, automatically be deemed references to the Original Rights
F-2
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CUSIP No. 873197107 13D Page 28 of 36 Pages
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Agreement or the applicable specific provisions thereof (as the case may be) as
amended by this Amendment, with the same force and effect as if expressly and
individually amended in that respect by this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
F-3
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CUSIP No. 873197107 13D Page 29 of 36 Pages
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IN WITNESS WHEREOF the Parties have caused this Amendment to be duly
executed and attested, all as of the date and year first above written.
[ATTEST] TAB PRODUCTS CO.
By: By:
----------------------------- ----------------------------------
Name: Name:
Title: Title:
[ATTEST] MELLON INVESTOR SERVICES LLC
By: By:
----------------------------- ----------------------------------
Name: Name:
Title: Title:
F-4
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CUSIP No. 873197107 13D Page 30 of 36 Pages
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EXHIBIT G
---------
FORM OF PRESS RELEASE
(SECTION 6.1)
TAB PRODUCTS CO. NEWS RELEASE
CONTACTS:
Donald Hotz
TAB Products Co.
(847) 968-2433
or
Daniel H. Burch
(212) 929-5748
Mark H. Harnett
(212) 929-5877
MacKenzie Partners, Inc.
FOR IMMEDIATE RELEASE:
TWO SUBSTANTIAL STOCKHOLDERS JOIN TAB PRODUCTS CO. BOARD AND WILL SUPPORT
COMPANY NOMINEES IN PROXY CONTEST
WARREN G. LICHTENSTEIN OF STEEL PARTNERS AND DAVID W. WRIGHT OF HENRY INVESTMENT
TRUST ENTER INTO SEPARATE AGREEMENTS WITH TAB PRODUCTS CO. RELATING TO PENDING
PROXY CONTEST WITH THADDEUS JAROSZEWICZ.
Vernon Hills, IL, September 11, 2001 -- TAB Products Co. (AMEX:TBP) announced
today that the Tab Board has elected Warren G. Lichtenstein and David W. Wright,
representatives of two substantial stockholders, to the TAB Board and has
entered into separate agreements with Messrs. Lichtenstein and Wright and their
respective affiliates relating to the pending proxy contest for election to the
Company's Board of Directors at the 2001 annual meeting scheduled for October
16, 2001. One of the separate agreements applies to a total of 515,900 TAB
shares, representing approximately 9.9% of the outstanding shares, beneficially
owned by Steel Partners II, L.P. and its affiliates. The other agreement applies
to a total of 194,600 shares, or approximately 3.8% of the outstanding shares,
beneficially owned by two private investment partnerships of which Henry
Investment Trust, L.P. is the general partner.
Hans A. Wolf, Chairman of TAB's Board, and Gary Ampulski, TAB's President and
Chief Executive Officer, stated:
G-1
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CUSIP No. 873197107 13D Page 31 of 36 Pages
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"The TAB Board is gratified that Mr. Lichtenstein and Mr.
Wright have been willing to make this important statement
of support. We look forward to working with them in
building stockholder value. We are confident that they
will both make constructive contributions to our
deliberations and we welcome them to the TAB Board."
Mr. Lichtenstein, the executive officer and managing member of Steel Partners'
general partner, and Mr. Wright, the President and managing member of Henry
Investment Trust's general partner, are each being added to the Company's slate
of directors for election to a one-year term at the 2001 annual meeting, along
with the five other current directors. The TAB Board has been expanded from five
to seven.
One or the other of Mr. Lichtenstein or Mr. Wright will be added, immediately,
to each of the Board's four current standing committees. If reelected at the
annual meeting, and if at least a majority of the elected Board consists of
TAB's nominees, one or the other of them will be appointed, so long as he serves
on the Board, to each of the Board's standing committees and any special
committees for which they are not legally disqualified.
Provided TAB is not in material default under either of the two agreements, at
the annual meeting all of the shares beneficially owned by the stockholders who
have signed that agreement, and their affiliates, must be voted in favor of the
election of all of the Company's nominees.
None of these stockholders is a participant in the proxy contest, which was
initiated by Thaddeus S. Jaroszewicz. Mr. Jaroszewicz has reported that he, his
affiliates and two of his four other nominees own, in the aggregate,
approximately 6.6% of the outstanding TAB shares.
In accordance with each of the two agreements, the TAB Board has amended the
Company's bylaws in several respects:
o Effective as of February 1, 2002, holders of at least 25% of the
outstanding shares will be permitted to call special meetings of
stockholders, which must be held within 55 days of a valid demand.
o Effective immediately, the Board is prohibited from forming an executive
committee to act on behalf of the Board without a majority Board vote that
includes Mr. Lichtenstein and Mr. Wright so long as they are still serving
on the Board. This same vote is required to repeal or amend this provision
and the provision regarding the call of special stockholder meetings.
o Effective immediately, the Board is prohibited from increasing its size
above seven directors so long as Mr. Lichtenstein and Mr. Wright are
directors.
The TAB Board has also amended the Company's bylaws to provide that, if the
Company increases the number of directors to be elected at a stockholder meeting
after a stockholder has previously nominated one or more candidates for election
to the Board at that meeting in accordance with the Company's advance notice
G-2
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CUSIP No. 873197107 13D Page 32 of 36 Pages
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bylaw, that stockholder will be entitled to nominate an equal number of
additional candidates within ten days following the Company's public
announcement of the increase. Accordingly, Mr. Jaroszewicz will be entitled to
nominate two additional candidates on or before September 21, 2001 in accordance
with the notice requirements of the bylaw.
In addition to these bylaw amendments, in accordance with the two agreements,
the TAB Board has also amended the Company's stockholder rights plan so that the
stock purchase rights issued thereunder will be triggered if, without prior
Board approval, a person or group becomes the beneficial owner of 20% of TAB's
outstanding shares. The previous trigger level of the rights was 15%. The
amendment also confirms that the act of participating in a demand for a special
meeting of stockholders will not by itself trigger the rights.
Both agreements, including the texts of the amendments of TAB's bylaws and
stockholder rights plan, will be filed shortly with the Securities and Exchange
Commission and will be reflected in final proxy materials to be distributed by
the Company in connection with the 2001 Annual Meeting.
TAB also announced today that the stockholder proposal that had been included in
its preliminary proxy materials has been withdrawn by the proponent and will not
be presented for consideration at the annual meeting.
ADDITIONAL INFORMATION:
YOU ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT OF TAB PRODUCTS CO. FOR ITS
2001 ANNUAL MEETING OF STOCKHOLDERS WHEN IT BECOMES AVAILABLE BECAUSE IT WILL
CONTAIN IMPORTANT INFORMATION. Security holders may obtain a free copy of the
proxy statement and other related documents filed by TAB at the SEC's website at
www.sec.gov or at the SEC's public reference room located at 450 Fifth Street,
NW, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. When available, the definitive proxy
statement and other related documents may also be obtained from TAB by
contacting TAB Products Co., Attention: Corporate Secretary, 935 Lakeview
Parkway, Suite 195, Vernon Hills, IL 60061-1442. Information regarding the
participants in the proxy solicitation and a description of their direct and
indirect interests, by security holdings or otherwise, is contained in the
amended preliminary proxy statement filed with the SEC on Schedule 14A by TAB
Products Co. on August 31, 2001.
ABOUT TAB PRODUCTS:
TAB Products Co. (AMEX:TBP), is a leading document management company
specializing in the re-engineering of the records management process. The
Company provides efficient solutions that enable its customers to better
organize, control and find their critical documents. TAB leverages its knowledge
of paper-based systems with expertise in emerging digital document management
technologies. Currently headquartered in Vernon Hills, Illinois, TAB employs
approximately 800 people with offices in the United States, Canada, Europe and
G-3
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CUSIP No. 873197107 13D Page 33 of 36 Pages
------------------------------- -------------------------------
Australia. With over 50 years of experience in document management, TAB serves
customers in a variety of industries including Finance, Healthcare, Government
and Insurance. Additional information can be found at www.tab.com.
G-4
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CUSIP No. 873197107 13D Page 34 of 36 Pages
------------------------------- -------------------------------
TAB PRODUCTS CO. NEWS RELEASE
CONTACTS:
Donald Hotz
TAB Products Co.
(847) 968-2433
or
Daniel H. Burch
(212) 929-5748
Mark H. Harnett
(212) 929-5877
MacKenzie Partners, Inc.
FOR IMMEDIATE RELEASE:
TWO SUBSTANTIAL STOCKHOLDERS JOIN TAB PRODUCTS CO. BOARD AND WILL SUPPORT
COMPANY NOMINEES IN PROXY CONTEST
WARREN G. LICHTENSTEIN OF STEEL PARTNERS AND DAVID W. WRIGHT OF HENRY INVESTMENT
TRUST ENTER INTO SEPARATE AGREEMENTS WITH TAB PRODUCTS CO. RELATING TO PENDING
PROXY CONTEST WITH THADDEUS JAROSZEWICZ.
Vernon Hills, IL, September 11, 2001 -- TAB Products Co. (AMEX:TBP) announced
today that the Tab Board has elected Warren G. Lichtenstein and David W. Wright,
representatives of two substantial stockholders, to the TAB Board and has
entered into separate agreements with Messrs. Lichtenstein and Wright and their
respective affiliates relating to the pending proxy contest for election to the
Company's Board of Directors at the 2001 annual meeting scheduled for October
16, 2001. One of the separate agreements applies to a total of 515,900 TAB
shares, representing approximately 9.9% of the outstanding shares, beneficially
owned by Steel Partners II, L.P. and its affiliates. The other agreement applies
to a total of 194,600 shares, or approximately 3.8% of the outstanding shares,
beneficially owned by two private investment partnerships of which Henry
Investment Trust, L.P. is the general partner.
Hans A. Wolf, Chairman of TAB's Board, and Gary Ampulski, TAB's President and
Chief Executive Officer, stated:
"The TAB Board is gratified that Mr. Lichtenstein and Mr. Wright
have been willing to make this important statement of support. We
look forward to working with them in building stockholder value. We
are confident that they will both make constructive contributions to
our deliberations and we welcome them to the TAB Board."
------------------------------- -------------------------------
CUSIP No. 873197107 13D Page 35 of 36 Pages
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Mr. Lichtenstein, the executive officer and managing member of Steel Partners'
general partner, and Mr. Wright, the President and managing member of Henry
Investment Trust's general partner, are each being added to the Company's slate
of directors for election to a one-year term at the 2001 annual meeting, along
with the five other current directors. The TAB Board has been expanded from five
to seven.
One or the other of Mr. Lichtenstein or Mr. Wright will be added, immediately,
to each of the Board's four current standing committees. If reelected at the
annual meeting, and if at least a majority of the elected Board consists of
TAB's nominees, one or the other of them will be appointed, so long as he serves
on the Board, to each of the Board's standing committees and any special
committees for which they are not legally disqualified.
Provided TAB is not in material default under either of the two agreements, at
the annual meeting all of the shares beneficially owned by the stockholders who
have signed that agreement, and their affiliates, must be voted in favor of the
election of all of the Company's nominees.
None of these stockholders is a participant in the proxy contest, which was
initiated by Thaddeus S. Jaroszewicz. Mr. Jaroszewicz has reported that he, his
affiliates and two of his four other nominees own, in the aggregate,
approximately 6.6% of the outstanding TAB shares.
In accordance with each of the two agreements, the TAB Board has amended the
Company's bylaws in several respects:
o Effective as of February 1, 2002, holders of at least 25% of the
outstanding shares will be permitted to call special meetings of
stockholders, which must be held within 55 days of a valid demand.
o Effective immediately, the Board is prohibited from forming an executive
committee to act on behalf of the Board without a majority Board vote that
includes Mr. Lichtenstein and Mr. Wright so long as they are still serving
on the Board. This same vote is required to repeal or amend this provision
and the provision regarding the call of special stockholder meetings.
o Effective immediately, the Board is prohibited from increasing its size
above seven directors so long as Mr. Lichtenstein and Mr. Wright are
directors.
The TAB Board has also amended the Company's bylaws to provide that, if the
Company increases the number of directors to be elected at a stockholder meeting
after a stockholder has previously nominated one or more candidates for election
to the Board at that meeting in accordance with the Company's advance notice
bylaw, that stockholder will be entitled to nominate an equal number of
additional candidates within ten days following the Company's public
announcement of the increase. Accordingly, Mr. Jaroszewicz will be entitled to
nominate two additional candidates on or before September 21, 2001 in accordance
with the notice requirements of the bylaw.
------------------------------- -------------------------------
CUSIP No. 873197107 13D Page 36 of 36 Pages
------------------------------- -------------------------------
In addition to these bylaw amendments, in accordance with the two agreements,
the TAB Board has also amended the Company's stockholder rights plan so that the
stock purchase rights issued thereunder will be triggered if, without prior
Board approval, a person or group becomes the beneficial owner of 20% of TAB's
outstanding shares. The previous trigger level of the rights was 15%. The
amendment also confirms that the act of participating in a demand for a special
meeting of stockholders will not by itself trigger the rights.
Both agreements, including the texts of the amendments of TAB's bylaws and
stockholder rights plan, will be filed shortly with the Securities and Exchange
Commission and will be reflected in final proxy materials to be distributed by
the Company in connection with the 2001 Annual Meeting.
TAB also announced today that the stockholder proposal that had been included in
its preliminary proxy materials has been withdrawn by the proponent and will not
be presented for consideration at the annual meeting.
ADDITIONAL INFORMATION:
YOU ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT OF TAB PRODUCTS CO. FOR ITS
2001 ANNUAL MEETING OF STOCKHOLDERS WHEN IT BECOMES AVAILABLE BECAUSE IT WILL
CONTAIN IMPORTANT INFORMATION. Security holders may obtain a free copy of the
proxy statement and other related documents filed by TAB at the SEC's website at
www.sec.gov or at the SEC's public reference room located at 450 Fifth Street,
NW, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. When available, the definitive proxy
statement and other related documents may also be obtained from TAB by
contacting TAB Products Co., Attention: Corporate Secretary, 935 Lakeview
Parkway, Suite 195, Vernon Hills, IL 60061-1442. Information regarding the
participants in the proxy solicitation and a description of their direct and
indirect interests, by security holdings or otherwise, is contained in the
amended preliminary proxy statement filed with the SEC on Schedule 14A by TAB
Products Co. on August 31, 2001.
ABOUT TAB PRODUCTS:
TAB Products Co. (AMEX:TBP), is a leading document management company
specializing in the re-engineering of the records management process. The
Company provides efficient solutions that enable its customers to better
organize, control and find their critical documents. TAB leverages its knowledge
of paper-based systems with expertise in emerging digital document management
technologies. Currently headquartered in Vernon Hills, Illinois, TAB employs
approximately 800 people with offices in the United States, Canada, Europe and
Australia. With over 50 years of experience in document management, TAB serves
customers in a variety of industries including Finance, Healthcare, Government
and Insurance. Additional information can be found at www.tab.com.