Misleading proxy statement ???????? Anyone?
Just had a chance to read TTR proxy on EDGAR and it look’s to me that in order to convince fellow shareholders to vote for this bad deal management may using misleading tactic
In the proxy company wants you to believe that they may do a liquidation and dissolution, distribution of cash when in fact in the Execution Version ANNEX a page A-32 und 9. INDEMNIFICATION, ETC the company must survive for at least 18 month and the way this guys are spending the moneys there may be nothing left
freeedgar.com
Business of the Company Following the Asset Sale
Following (and subject to) the approval by the Company's Stockholders of the Asset Sale, the Company will cease to be engaged in the field of copy protection in which it has been actively engaged since its inception in 1994. The Company has agreed not to compete with Macrovision respecting the Business, following the closing of the Asset Sale. Following the closing of the Asset Sale, the Company will continue to own 50% of the ComSign Business.
Following the consummation of the Asset Sale, payment of estimated transactions costs and other wind-down liabilities associated with TTR Ltd, the Company's management estimates that the Company will have approximately $6 million in cash. In addition, management estimates that the Company has a net operating loss carry forward (NOL) of approximately $13 million, which will be available to offset future U.S. taxable income subject to limitations Under
Section 382 of the Internal Revenue Code pertaining to changes in stock ownership. TTR Ltd., the Company's wholly owned Israeli subsidiary, has a net operating loss carry forward of approximately $9.7 million available to offset future taxable income in Israel.
The Board has not yet determined what the Company's strategic direction will be following the consummation of the Asset Sale and is considering several possible general alternatives. Immediately following the closing of the Asset Sale, the Company will have no material liabilities other than ordinary course payables. It will also continue to be a defendant in the one lawsuit and possibly an additional lawsuit, if an amended complaint is filed by January 3, 2003, all as described above, and have contingent liabilities for any potential breach of the Asset Purchase Agreement. Currently, the Company anticipates pursuing one of the following three directions: liquidation and dissolution, retention of the proceeds and acquisition, investment in, or development of new lines of business, or a partial distribution of cash and acquisition, investment in, or development of new lines of business. The Company has not determined which option it will pursue. Furthermore, the Company may not choose any of the options described above and instead may pursue one or more other options the Company has not yet considered. Although the Board may explore opportunities to acquire, invest in, or develop new lines of business, to date the Board has not adopted a new strategic direction for the company and cannot predict what, if
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any, businesses it may enter or strategies it may adopt. Therefore, the Board can offer no indication of what risks and opportunities might arise in the context of such a new direction or directions.
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9. INDEMNIFICATION, ETC.
9.1 Survival of Representations and Covenants.
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(a) The representations and warranties of each of the Seller
Corporations set forth in this Agreement shall survive (without limitation): (i)
the Closing and the sale of the Designated Assets to the Purchaser; (ii) any
sale or other disposition of any or all of the Designated Assets by the
Purchaser; and (iii) the dissolution or liquidation of any Party to this
Agreement. The representations and warranties of the Purchaser and Parent set
forth in this Agreement shall expire at the Closing and shall thereafter be of
no further force or effect.
(b) The representations, warranties, covenants and obligations of
the Seller Corporations, and the rights and remedies that may be exercised by
the Indemnitees, shall not be limited or otherwise affected by or as a result of
any information furnished to, or any investigation made by or any knowledge of,
any of the Indemnitees or any of their Representatives; provided, however, that
notwithstanding the foregoing, qualifications set forth in the Disclosure Letter
shall be deemed to qualify the corresponding representations and warranties set
forth in Section 2 to the extent of such qualifications.
(c) The representations and warranties of the Seller Corporations
set forth in this Agreement shall expire on the 18-month anniversary of the
Closing Date (the "Expiration Date"); provided, however, that if a Claim Notice
(as defined below) relating to any representation or warranty of the Seller or
Seller Sub is given to the Seller on or prior to the Expiration Date, then,
notwithstanding anything to the contrary contained in this Section 9.1(c), such
representation or warranty shall not so expire, but rather shall remain in full
force and effect until such time as each and every claim (including any
indemnification claim asserted by any Indemnitee under Section 9.2) that is
based directly or indirectly upon, or that relates directly or indirectly to,
any Breach or alleged Breach of such representation or warranty has been fully
and finally resolved, either by means of a written settlement agreement executed
on behalf of the Seller and the Purchaser or by means of a final, non-appealable
judgment issued by a court of competent jurisdiction.
(d) For purposes of this Agreement, a "Claim Notice" relating to a
particular representation or warranty shall be deemed to have been given if any
Indemnitee, acting in good faith, delivers to the Seller a written notice
stating that such Indemnitee believes that there is or has been a possible
Breach of such representation or warranty and containing (i) a brief description
of the circumstances supporting such Indemnitee's belief that there is or has
been such a possible Breach, and (ii) a non-binding, preliminary estimate of the
aggregate dollar amount of the actual and potential Damages that have arisen and
may arise as a direct or indirect result of such possible Breach.
(e) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Letter or in any update to the
Disclosure Letter shall be deemed to be a representation and warranty made by
the Seller Corporations in this Agreement.
9.2 Indemnification by the Seller Corporations.
(a) The Seller Corporations, jointly and severally, shall hold
harmless and indemnify each of the Indemnitees from and against, and shall
compensate and reimburse each of the Indemnitees for, any Damages that are
directly or indirectly suffered or incurred by any of
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the Indemnitees or to which any of the Indemnitees may otherwise become subject
at any time (regardless of whether or not such Damages relate to any third-party
claim) and that arise directly or indirectly from or as a direct or indirect
result of, or are directly or indirectly connected with:
(i) any Breach of any of the representations or warranties
made by the Seller or Seller Sub in this Agreement or the Disclosure
Letter (without giving effect to any update to the Disclosure Letter) both
as of the date of this Agreement and as of the Closing Date as if made on
and as of the Closing Date, or in the Seller Closing Certificate, the
Seller Sub Closing Certificate, or any of the other Transactional
Agreements;
(ii) any Breach of any covenant or obligation of the Seller
Corporations contained in any of the Transactional Agreements;
(iii) any Liability of the Seller Corporations or of any
Related Party, other than the Designated Contractual Obligations;
(iv) any noncompliance with any Bulk Sales Laws or fraudulent
transfer laws in respect of any of the Transactions;
(v) any matter identified or referred to in the Disclosure
Statement dated October 29, 2002 attached to the Disclosure Letter as
Schedule C thereto, including the Purchaser not having received the First
Consent and/or the Second Consent, as the case may be, prior to the
Closing Date (even if (A) the condition set forth in Section 6.11 has been
waived by the Purchaser in whole or in part, and (B) the Purchaser
receives the First Consent and/or the Second Consent, as the case may be,
following the Closing Date);
(vi) any Proceeding relating directly or indirectly to any
Breach, alleged Breach referred to in clause "(i)" or "(ii)" above
(including any Proceeding commenced by any Indemnitee for the purpose of
enforcing any of its rights under this Section 9); or
(vii) any Proceeding relating directly or indirectly to any
Breach, alleged Breach, Liability or matter of the type referred to in
clause "(iii)," "(iv)" or "(v)" above (including any Proceeding commenced
by any Indemnitee for the purpose of enforcing any of its rights under
this Section 9).
(b) The total amount of the indemnification payments that the Seller
Corporations shall be required to make under or in connection with this
Agreement shall be limited in the aggregate to an amount equal to the Adjusted
Payment Amount; provided, however, that the foregoing limitation shall not apply
to the indemnification obligations described in clauses "(iii)," "(iv)," "(v)"
and "(vii)" of Section 9.2(a).
(c) In the event that the Seller Corporations' obligation to
indemnify, hold harmless, compensate and reimburse any Indemnitees arises under
or may be attributable to more
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than one clause of Section 9.2(a), the Indemnitee shall have the option to claim
such indemnification, compensation or reimbursement by or from the Seller
Corporations under any or all such applicable clauses, and the limitation set
forth in Section 9.2(b) on any one such clause shall not apply to any other
clause to which such limitation does not otherwise apply pursuant to the terms
of Section 9.2(b).
9.3 Exclusivity of Indemnification Remedies. The indemnification remedies
and other remedies provided in this Section 9 shall be deemed to be the
exclusive remedy of the Indemnitees for Breaches of the representations,
warranties and covenants of the Seller Corporations contained in this Agreement
and the other indemnification obligations set forth in this Section 9 that are
asserted subsequent to Closing, except with respect to claims arising out of
fraud or the willful breach of covenants by either of the Seller Corporations;
provided, however, that the foregoing shall not prohibit any Party from seeking
an injunction or other equitable relief in respect thereof.
9.4 Defense of Third Party Claims. In the event of the assertion or
commencement by any Person of any claim or Proceeding against or involving any
of the Indemnitees with respect to which either of the Seller or the Seller Sub
may become obligated to indemnify, hold harmless, compensate or reimburse any
Indemnitee pursuant to Section 9 of this Agreement, the Purchaser shall have the
right, at its election, to designate the Seller to assume the defense of such
claim or Proceeding at the sole expense of the Seller. If the Purchaser so
elects to designate the Seller to assume the defense of any such claim or
Proceeding:
(a) the Seller shall proceed to defend such claim or Proceeding in a
diligent manner with counsel satisfactory to the Purchaser;
(b) the Purchaser shall make available to the Seller any
non-privileged documents and materials in the possession of the Purchaser
that may be necessary to the defense of such claim or Proceeding;
(c) the Seller shall keep the Purchaser informed of all material
developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense
of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or
Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior
designation of the Seller to assume the defense of such claim or
Proceeding) assume the defense of such claim or Proceeding.
If the Purchaser does not elect to designate the Seller to assume the defense of
any such claim or Proceeding (or if, after initially designating the Seller to
assume such defense, the Purchaser elects to assume such defense), the Purchaser
may proceed with the defense of such claim or
A-35
Proceeding on its own. If the Purchaser so proceeds with the defense of any such
claim or Proceeding on its own:
(i) all reasonable expenses relating to the defense of such
claim or Proceeding shall be borne and paid exclusively by the Seller and
the Seller Sub;
(ii) the Seller shall make available to the Purchaser any
documents and materials in the possession or control of the Seller
Corporations that may be necessary to the defense of such claim or
Proceeding;
(iii) the Purchaser shall keep the Seller informed of all
material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the right to settle, adjust or
compromise such claim or Proceeding with the consent of the Seller;
provided, however, that the Seller shall not unreasonably withhold such
consent.
10. MISCELLANEOUS PROVISIONS.
10.1 Further Assurances. Each Party hereto shall execute and/or cause to
be delivered to each other Party hereto such instruments and other documents,
and shall take such other actions, as such other Party may reasonably request
(prior to, at or after the Closing) for the purpose of carrying out or
evidencing any of the Transactions.
10.2 Fees and Expenses. Without limiting Section 10.3, the Parties shall
each bear their own expenses incurred in connection with the transactions
contemplated herein.
10.3 Attorneys' Fees. If any legal action or other legal proceeding
relating to any of the Transactional Agreements or the enforcement of any
provision of any of the Transactional Agreements is brought against any Party to
this Agreement, the prevailing Party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing Party may be entitled).
10.4 Notices. Any notice or other communication required or permitted to
be delivered to any Party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service) to the address set
forth beneath the name of such Party below (or to such other address as such
Party shall have specified in a written notice given to the other Parties
hereto): |
