Novatel Inc - Statement of Ownership: Private Transaction
October 26 2007 - 5:01PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
(Rule 14d-1 and Rule 13e-3)
Tender Offer Statement under Section 14(d)(1)
or 13(e)(1)
of the Securities Exchange Act of 1934
NOVATEL
INC.
(Name of Subject Company
(Issuer))
HEXAGON
CANADA ACQUISITION INC.
(as Offeror)
HEXAGON
AB
(as Parent of Offeror)
(Names of Filing
Persons)
Common
Shares
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669954109
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(Title of Class of
Securities)
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(CUSIP Number of Class
of Securities)
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Edwin S.
Maynard, Esq.
Ariel J.
Deckelbaum, Esq.
Paul,
Weiss, Rifkind, Wharton & Garrison LLP
1285
Avenue of the Americas
New
York, NY 10019-6064
(212)
373-3000
(Name, address and
telephone number of person authorized to
receive notices
and communications on behalf of filing persons)
With a Copy to
Brett
Cooper, Esq.
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Kenneth
G. Ottenbreit, Esq.
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Orrick,
Herrington & Sutcliffe LLP
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Stikeman
Elliott LLP
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405
Howard Street
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Tower
56, 14
th
Floor
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San
Francisco, CA 94105-2625
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126
East 56
th
Street
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(415)
773-5700
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New
York, NY 10022
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(212)
371-8855
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CALCULATION
OF FILING FEE*
Transaction
Valuation*
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Amount
of Filing Fee*
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$463,654,850.00
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$14,234.20
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*
Estimated solely for purposes of
calculating the filing fee in accordance with Rule 0-11 under the Securities
Exchange Act of 1934. The amount of the filing fee is calculated by
multiplying the transaction value by 0.0000307. The transaction value was
determined by multiplying the purchase price of
U.S. $50.00 per share by 9,273,097 shares of common stock, no par value
per share, of NovAtel Inc. (NovAtel) (including 639,061 shares issuable upon
exercise of options and up to a maximum of 1,325 shares that may be issued
pursuant to outstanding retired share units) as of October 8, 2007, as
represented by NovAtel in the Subscription and Support Agreement, dated as of
October 8, 2007, between NovAtel and Hexagon AB (Hexagon).
o
Check the box if any part of the fee is
offset as provided by Rule 0-11(a)(2) and identify the filing with which
the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its
filing.
Amount Previously Paid:
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N/A
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Filing Party:
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N/A
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Form or Registration No.:
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N/A
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Date Filed:
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N/A
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o
Check the box if the filing relates
solely to preliminary communications made before the commencement of a tender
offer.
Check the appropriate
boxes below to designate any transactions to which the statement relates:
S
third-party tender offer subject to
Rule 14d-1.
o
issuer tender offer subject to Rule 13e-4.
S
going-private transaction subject to
Rule 13e-3.
o
amendment to Schedule 13D under
Rule 13d-2.
Check the following box if the filing is a final amendment reporting
the results of the tender offer:
o
EXPLANATORY NOTE
This Schedule TO is being refiled by Hexagon Canada
Acquisition Inc. (the Offeror), Hexagon AB (Hexagon) and NovAtel Inc.
(NovAtel) to correct a technical error in the filing process of the
previously filed Schedule TO, which was filed on October 19, 2007 (File Number
005-50460). Due to the fact that under a potential interpretation of Rule 13e-3
under the Securities Exchange Act of 1934 governing going private
transactions, either the Offeror or Hexagon, or both, may be deemed to be an
affiliate of NovAtel, this Schedule TO was to be filed as both a Schedule TO
and as a Schedule 13e-3. However, when the Schedule TO was filed on October 19,
2007 it was not filed as a Schedule 13e-3.
Accordingly, the Offeror, Hexagon and NovAtel are correcting this
technical error by filing the exact same Schedule TO as a Schedule 13e-3 as
well.
SCHEDULE TO
This
Tender Offer Statement and Rule 13E-3 Transaction Statement filed
under cover of Schedule TO (this Schedule TO) relates to a tender offer by
Hexagon Canada Acquisition Inc.
(the Offeror),
a wholly-owned subsidiary of Hexagon, pursuant to Rule 14d-1 and 13e-3
under the Securities Exchange Act of 1934, as amended (the Exchange Act), to
purchase all of the outstanding shares of common stock, no par value per share
(Shares), of NovAtel, not owned by the Offeror or Hexagon, at a price of U.S. $50.00 per Share, net to the
sellers in cash, without interest. The terms and conditions of the offer
are described in the Offer to Purchase For Cash, dated October 8, 2007
(the Offer to Purchase) and the related Letter of Transmittal (which,
together with any supplements or amendments, collectively the Offer), copies
of which are attached as Exhibits (a)(1) and (a)(2) hereto, respectively.
The information
set forth in the Offer to Purchase and the related Letter of Transmittal is
incorporated herein by reference with respect to all items of this Schedule TO,
including, without limitation, all of the information required by
Schedule 13E-3 that is not included in or covered by the items in
Schedule TO, and is supplemented by the information specifically provided
therein.
ITEM
1.
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SUMMARY
TERM SHEET
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Reference is made to
the information set forth in the Offer to Purchase under the heading SUMMARY
TERM SHEET, which is incorporated herein by reference.
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ITEM
2.
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SUBJECT
COMPANY INFORMATION
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(a) The
name of the subject company is NovAtel Inc., a corporation incorporated under
the federal laws of Canada. The address of the principal executive offices of
NovAtel is 1120-68th Avenue N.E., Calgary, Alberta, Canada T2E 8S5, and the
telephone number of NovAtel is 403-295-4500. Reference is made to the
information set forth in the Offer to Purchase under the heading
CIRCULARSection 2. NovAtel, which is incorporated herein by reference.
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(b)
Reference is made to the information set forth in the Offer to Purchase under
the headings CIRCULARSection 2. NovAtel, DEFINITIONSShares and THE
OFFERSection 1. The Offer, which is incorporated herein by reference.
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(c)
Reference is made to the information set forth in the Offer to Purchase under
the heading CIRCULARSection 18. Price Range and Trading Volumes of the
Shares, which is incorporated herein by reference.
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ITEM
3.
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IDENTITY
AND BACKGROUND OF FILING PERSON
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(a)
Reference is made to the information set forth in the Offer to Purchase under
the headings CIRCULARSection 1. The Offeror and Hexagon, CIRCULARSection
4. Agreements Relating to the Offer and Annex ACertain Information
Regarding the Directors and Executive Officers of Hexagon and the Offeror,
which is incorporated herein by reference. The address and principal
executive offices of Hexagon is Cylindervagen 12, Nacka Strand, Sweden SE-131
26 and its telephone number is + 46 8 601 26 20. The address of the principal
executive offices of the Offeror is c/o Hexgon, Cylindervagen 12, Nacka
Strand, Sweden SE-131 26 and its telephone number is + 46 8 601 26 20. Under
a potential interpretation of Rule 13e-3 under the Exchane Act governing
going private transactions, either the Offeror or Hexagon, or both, may be
demed to be an affiliate of NovAtel. Hexgon and the Offeror are filing this
statement solely for the purposes of complying with the requirements of Rule
13e-3 under the Exchange Act. Hexagaons and the Offerors compliance with
the requirements of Rule 13e-3 under the Exchange Act does not costitute the
admission by either Hexagon or the Offeror that either of them, or both, is,
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or
should be deemed as an affiliate of NovAtel for the purpose of the Offer.
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(b)
Reference is made to the information set forth in the Offer to Purchase under
the headings CIRCULARSection 1. The Offeror and Hexagon and Annex
ACertain Information Regarding the Directors and Executive Officers of
Hexagon and the Offeror, which is incorporated herein by reference.
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(c)
Reference is made to the information set forth in the Offer to Purchase under
the headings CIRCULARSection 1. The Offeror and Hexagon and Annex
ACertain Information Regarding the Directors and Executive Officers of
Hexagon and the Offeror, which is incorporated herein by reference.
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Information relating to
the transaction has been made available with the Securities and Exchange
Commision (Commision). Such documents are available at www.sec.gov.
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ITEM
4.
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TERMS
OF THE TRANSACTION
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(a) Reference is made
to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, THE OFFERSection 1. The Offer, THE
OFFERSection 2. Time for Acceptance, THE OFFERSection 3. Manner for
Acceptance, THE OFFERSection 4. Conditions of the Offer, THE
OFFERSection 5. Extension, Variation or Change in the Offer, THE
OFFERSection 6. Take up of and Payment for Deposited Shares, THE
OFFERSection 7. Right to Withdrawal Deposited Shares, CIRCULARSection 21.
Acquisition of Shares Not Deposited Under the Offer, CIRCULARSection 22. Certain
Canadian Federal Income Tax Considerations, and CIRCULARSection 23.
Certain U.S. Federal Income Tax Considerations, which is incorporated herein
by reference.
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ITEM
5.
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PAST
CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
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(a), (b) Reference is
made to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3. Background of the
Offer, CIRCULARSection 4. Agreements Relating to the Offer,
CIRCULARSection 13. Beneficial Ownership of and Trading in Shares of
NovAtel, CIRCULARSection 14. Commitments to Acquire Shares of NovAtel and
CIRCULARSection 15. Past Contracts, Transactions, Negotiations and
Agreements, and Present or Proposed Material Agreements, Arrangements,
Understandings and Relationships, which is incorporated herein by reference.
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ITEM
6.
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PURPOSES
OF THE TRANSACTION AND PLANS OR PROPOSALS
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(a), (c)(1)-(7)
Reference is made to the information set forth in the Offer to Purchase under
the headings SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3. Background
of the Offer, CIRCULARSection 4. Agreements Relating to the Offer,
CIRCULARSection 6. Purpose, Alternatives and Reasons for the Offer,
CIRCULARSection 7. Plans for NovAtel, CIRCULARSection 17. Certain
Information Concerning NovAtel and its Shares and CIRCULARSection 19.
Effect of the Offer on the Market for Shares; Stock Exchange Listing and
Public Disclosure, which is incorporated herein by reference.
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ITEM
7.
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SOURCE
AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
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(a), (b), (d) Reference
is made to the information set forth in the Offer to Purchase under the
headings SUMMARY TERM SHEET and CIRCULARSection 12. Sources of Funds,
which is incorporated herein by reference.
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ITEM
8.
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INTEREST
IN SECURITIES OF THE SUBJECT COMPANY
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(a), (b) Reference is
made to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3. Background of the
Offer, CIRCULARSection 4. Agreements Relating to the Offer,
CIRCULARSection 15. Past Contracts, Transactions, Negotiations and
Agreements, and Present or Proposed Material Agreements, Arrangements, Understandings
and Relationships, CIRCULARSection 13. Beneficial Ownership of and Trading
in Shares of NovAtel, CIRCULARSection 14. Commitments to Acquire Shares of
NovAtel and in the Directors Circular (attached as Exhibit (a)(4) hereto)
under the headings Directors CircularTRADING IN SECURITIES OF NOVATEL and
Directors CircularISSUANCES OF SECURITIES OF NOVATEL, which is
incorporated herein by reference.
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ITEM
9.
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PERSONS/ASSETS,
RETAINED, EMPLOYED, COMPENSATED OR USED
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(a) Reference is made
to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 8. Recommendation of the
Board of Directors, CIRCULARSection 10. Third Party Evaluation and
Opinion, CIRCULARSection 24. Certain Fees and Expenses, which is
incorporated herein by reference.
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ITEM
10.
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FINANCIAL
STATEMENTS
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(a) N/A
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(b) N/A
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ITEM
11.
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ADDITIONAL
INFORMATION
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(a)(1)
N/A
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(a)(2)
Reference is made to the information set forth in the Offer to Purchase under
the headings CIRCULARSection 19. Effect of the Offer on the Market for
Shares; Stock Exchange Listing and Public Disclosure and CIRCULARSection
20. Regulatory Matters, which is incorporated herein by reference.
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(a)(3)-(5)
N/A
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(b)
Reference is made to the information set forth in the Offer to Purchase under
the heading CIRCULARSection 11. Projected Financial Information with
Respect to NovAtel, which is incorporated herein by reference.
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ITEM
12.
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MATERIALS
TO BE FILED AS EXHIBITS
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See Exhibit Index
immediately following signature page.
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ITEM
13.
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INFORMATION
REQUIRED BY SCHEDULE 13E-3
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Item 2. Subject Company
Information
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(d) Reference is made
to the information set forth in the Offer to Purchase under the heading
CIRCULARSection 17. Certain Information Concerning NovAtel and its Shares,
which is incorporated herein by reference.
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(e) Neither Hexagon nor
the Offeror has made an underwritten public offering of the subject
securities for cash during the past three years.
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(f) Reference is made
to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 4. Agreements Relating to
the Offer, CIRCULARSection 13. Beneficial Ownership of and Trading in the
Shares of NovAtel and CIRCULARSection 15. Past Contracts, Transactions,
Negotiations and Agreements, and Present or Proposed Material Agreements,
Arrangements, Understandings and Relationships, which is incorporated herein
by reference.
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Item 4. Terms of the
Transaction
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(c) Reference is made
to the information set forth in the Directors Circular under the heading
Directors CircularARRANGEMENTS BETWEEN NOVATEL AND ITS DIRECTORS AND
SENIOR OFFICERS, which is incorporated herein by reference.
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(d) Reference is made
to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, THE OFFERSection 1. The Offer,
CIRCULARSection 21. Acquisition of Shares Not Deposited Under the Offer,
which is incorporated herein by reference.
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(e) Neither Hexagon nor
the Offeror made any provisions in connection with the transaction to grant
unaffiliated security holders access to the corporate files of the filing
person or to obtain counsel or appraisal services at the expense of the
filing person. Reference is made to the information set forth in the Offer to
Purchase under the headings SUMMARY, and THE OFFERSection 1. The Offer,
which is incorporated herein by reference.
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(f) N/A
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Item 5. Past Contracts,
Transactions, Negotiations and Agreements
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(c), (e) Reference is
made to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3. Background of the
Offer, CIRCULARSection 4. Agreements Relating to the Offer,
CIRCULARSection 5. Treatment of Options and RSUs and CIRCULARSection 15.
Past Contracts, Transactions, Negotiations and Agreements, and Present or
Proposed Material Agreements, Arrangements, Understandings and
Relationships, which is incorporated herein by reference.
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Item 6. Purposes of the
Transaction and Plans or Proposals
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(b) Reference is made
to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 7. Plans for NovAtel,
CIRCULARSection 19. Effect of the Offer on the Market for Shares; Stock
Exchange Listing and Public Disclosure and CIRCULARSection 21. Acquisition
of Shares Not Deposited Under the Offer, which is incorporated herein by
reference.
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(c)(8) Reference is
made to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY and CIRCULARSection 19. Effect of the Offer
on the Market for Shares; Stock Exchange Listing and Public Disclosure,
which is incorporated herein by reference.
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Item 7. Purposes, Alternatives,
Reasons and Effects
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(a)-(d) Reference is
made to the information set forth in the Offer to Purchase under the headings
SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3.
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Background of the
Offer, CIRCULARSection 6. Purpose, Alternatives and Reasons for the Offer,
CIRCULARSection 7. Plans for NovAtel, CIRCULARSection 19. Effect of the
Offer on the Market for Shares; Stock Exchange Listing and Public Disclosure
and CIRCULARSection 21. Acquisition of Shares Not Deposited Under the
Offer, which is incorporated herein by reference.
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Item 8. Fairness of the
Transaction
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(a)-(f)
Reference is made to the information set forth in the Offer to Purchase under
the headings SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3. Background
of the Offer, CIRCULARSection 6. Purpose, Alternatives and Reasons for the
Offer, CIRCULARSection 8. Recommendation of the Board of Directors,
CIRCULARSection 9. Hexagons and the Offerors Position Regarding the
Fairness of the Offer, CIRCULARSection 10. Third Party Evaluation and
THE OFFERSection 4. Conditions of the Offer, and the Directors Circular
under the headings Directors CircularRECOMMENDATION OF THE BOARD OF
DIRECTORS, Directors CircularREASONS FOR THE RECOMMENDATION, Directors
CircularFAIRNESS OPINION, Directors CircularPERSONS OR ASSETS RETAINED,
EMPLOYED, COMPENSATED OR USED and Directors CircularDIRECTORS APPROVAL,
which is incorporated herein by reference.
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Item 9.
Reports, Opinions, Appraisals and Negotiations
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(a)-(b)
Reference is made to the information set forth in the Offer to Purchase under
the headings SUMMARY TERM SHEET, SUMMARY, CIRCULARSection 3. Background
of the Offer and CIRCULARSection 10. Third Party Evaluation, and in the
Directors Circular under the headings Directors CircularFAIRNESS OPINION
and Directors CircularPERSONS OR ASSETS RETAINED, EMPLOYED, COMPENSATED OR
USED, which is incorporated herein by reference.
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(c)
Copies of any documents filed by NovAtel in connection with the Offer will be
available free of charge at the Security and Exchange Commisions (Commission)
website at www.sec.gov, from NovAtel at www.novatel.ca or from the
information agent, Morrow & Co., by calling (800) 607-0088.
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Item
10. Source and Amount of Funds or Other Consideration
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(c)
Reference is made to the information set forth in the Offer to Purchase under
the headings CIRCULARSection 5. Treatment of Options and RSUs and
CIRCULARSection 24. Certain Fees and Expenses, which is incorporated
herein by reference.
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Item
12. The Solicitation or Recommendation
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(d),
(e) Reference is made to the information set forth in the Offer to Purchase
under the headings SUMMARY TERM SHEET, SUMMARY and CIRCULARSection 8.
Recommendation of the Board of Directors, which is incorporated herein by
reference.
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Item
13. Financial Statements
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(a)(1)
The audited consolidated financial statements of NovAtel as of and for the
fiscal years ended December 31, 2006 and 2005 are incorporated herein by
reference from NovAtels Annual Report on Form 20-F (File No. 000-29004)
filed with the Commission on May 9, 2007.
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(a)(2)
The unaudited consolidated financial statements of NovAtel for the six month
period ended June 30, 2007 are incorporated herein by reference of NovAtels
Quarterly Report on Form 6-K (File No. 000-29004) filed with the Commission
on August 10, 2007.
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(a)(3)
Ratio of earnings to fixed charges, is set forth in the Offer to Purchase
under the headings CIRCULARSection 2. NovAtel, which is incorporated
herein by reference.
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(a)(4)
Book value per share is set forth in the Offer to Purchase under the headings
CIRCULARSection 2. NovAtel, which is incorporated herein by reference.
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(b) The
pro-forma information disclosing the effect of the transaction is not
material and therefore is not presented herein.
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Item
14. Persons/Assets, Retained, Employed, Compensated or Used
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(b)
Except as disclosed in the Directors Circular, in connection with the Offer
contemplated hereby, Hexagon, the Offeror and NovAtel have not, as of the
date hereof, employed, retained or compensated other persons to make
solicitations or recommendations to the holders of Shares. The boards of
directors of Hexagon and the Offeror were assisted by a working group of
senior finance, accounting and legal personnel from Hexagon. While no
specific use of corporate assets of NovAtel is contemplated by Hexagon, the
Offeror or NovAtel in connection with the Offer, it is possible that some
such use, none of which is expected to be material, may occur.
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Item
16. Exhibits
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See
Exhibit Index immediately following signature page.
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SIGNATURE
After
due inquiry and to the best of their knowledge and belief, the undersigned
hereby certify as of October 19, 2007 that the information set forth in
this statement is true, complete and correct.
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HEXAGON CANADA ACQUISITION INC.
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By:
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/s/ Frederick W. London
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Name: Frederick W.
London
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Title: Vice President
& Secretary
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HEXAGON AB
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By:
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/s/ Frederick W. London
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Name: Frederick W.
London
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Title: General Counsel
& Attorney-in-Fact
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NOVATEL INC.
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By:
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/s/ Jonathan W. Ladd
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Name: Jonathan W. Ladd
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Title: President and
Chief Executive Officer
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8
EXHIBIT
INDEX
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EXHIBIT
NO.
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DESCRIPTION
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(a)(1)
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Offer to Purchase For
Cash, dated October 19, 2007.
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(a)(2)
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Letter of Transmittal.
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(a)(3)
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Notice of Guaranteed
Delivery.
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(a)(4)
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Directors Circular,
dated October 19, 2007.
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(a)(5)
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Press release by
Hexagon, dated October 19, 2007, announcing the commencement of the Offer.
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(a)(6)
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Press release relating
to Hexagon proposed acquisition of NovAtel, announced by Hexagon on October
8, 2007.*
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(a)(7)
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Powerpoint presentation
that accompanied a conference call with Hexagons Chief Executive Officer and
President, Ola Rollén, to discuss Hexagons proposed acquisition of NovAtel.*
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(a)(8)
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Transcript
of a conference call with Hexagons Chief Executive Officer and President,
Ola Rollén, to discuss Hexagons proposed acquisition of NovAtel.*
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(a)(9)
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Press
release relating to Hexagon proposed acquisition of NovAtel, announced by
NovAtel on October 8, 2007.**
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|
(a)(10)
|
|
Email communication to
the employees of NovAtel regarding the proposed acquisition by Hexagon.**
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|
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|
(a)(11)
|
|
Transcript of October
8, 2007 conference call regarding Hexagons proposed acquisition of NovAtel.**
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|
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|
(a)(12)
|
|
Letter to Shareholders
of NovAtel, dated October 19, 2007.***
|
|
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|
(a)(13)
|
|
Request for Taxpayer
Identification Number and Certification on Form W-9 (including guidelines).
|
|
|
|
|
|
(a)(14)
|
|
Certificate of Foreign
Status of Beneficial Owner for United States Tax Withholding on Form W-8BEN
(including guidelines).
|
|
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|
|
|
(c)
|
|
Savvian - Presentation
to the Special Committee of the Board of Directors, dated October 7, 2007.
|
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|
|
(d)(1)
|
|
Subscription and
Support Agreement, dated October 8, 2007, by and between Hexagon and NovAtel.
|
|
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|
|
(d)(2)
|
|
4% Senior Unsecured
Convertible Debenture Issued by NovAtel in favor of Hexagon, dated as of
October 17, 2007.
|
|
|
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|
|
(d)(3)
|
|
Assignment, Assumption
and Novation Agreement, by and among Hexagon, Offeror and NovAtel, dated as
of October 18, 2007.
|
|
|
|
|
|
(d)(4)
|
|
Strategic Cooperation
Agreement, by and among Leica Geosystems A.G., NovAtel,
|
9
|
|
CMC Electronics Inc.
and Oncap L.P., dated as of April 5, 2003 (previously filed with the SEC as
Exhibit 10.14 to NovAtels Annual Report on Form 20-F on May 27, 2004 (File
No. 000-29004)).
|
|
|
|
(f)
|
|
Shareholders rights
under compulsory acquisition - Section 206 and 206.1 of Part XVII of the
Canadian Business Corporation Act.
|
|
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|
|
|
(i)
|
|
Power of Attorney.
|
|
|
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|
|
*
|
|
Previously
filed with the SEC as an Exhibit to Hexagons Schedule TO-c on
October 9, 2007 (File No. 005-50460).
|
|
|
|
|
|
|
|
**
|
|
Previously
filed with the SEC as an Exhibit to NovAtels Schedule 14D-9 on October 9,
2007 (File No. 005-50460).
|
|
|
|
|
|
|
|
***
|
|
Previously
filed with the SEC as an Exhibit to NovAtels Schedule 14D-9 on October 19,
2007 (File No. 005-50460).
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|
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