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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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GRADALL INDUSTRIES, INC.
(NAME OF SUBJECT COMPANY)
GRADALL INDUSTRIES, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $.001 PER SHARE
SERIES B PARTICIPATING CUMULATIVE PREFERRED STOCK
(TITLES OF CLASSES OF SECURITIES)
38411P107
(CUSIP NUMBERS OF CLASSES OF SECURITIES)
BARRY L. PHILLIPS
GRADALL INDUSTRIES, INC.
406 MILL AVENUE, S.W.
NEW PHILADELPHIA, OH 44663
(330) 339-2211
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICE AND COMMUNICATIONS
ON BEHALF OF THE PERSON(S) FILING STATEMENT)
COPY TO:
ROBERT A. CANTONE, ESQ.
PROSKAUER ROSE LLP
1585 BROADWAY
NEW YORK, NEW YORK 10036-8299
(212) 969-3000
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
GRADALL INDUSTRIES, INC.
By: /s/ BARRY L. PHILLIPS
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Barry L. Phillips,
President and Chief Executive
Officer
Dated: June 2, 1999
2
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EXHIBIT INDEX
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
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Exhibit 24 Agreement dated September 26, 1997
between Gradall Industries, Inc. and
Morgan Lewis Githens & Ahn
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EXHIBIT 24
[MORGAN LEWIS GITHENS & AHN LETTERHEAD]
September 26, 1997
Gradall Industries, Inc.
406 Mill Avenue, S.W.
New Philadelphia, OH 44663
Attention: Barry L. Phillips
President & Chief Executive Officer
Gentlemen:
Morgan Lewis Githens & Ahn ("MLGA") is pleased to act as a financial
advisor to Gradall Industries, Inc. (the "Company") in connection with the
Company's exploration of possible strategic business alternatives including (i)
acquisitions, (ii) divestitures, (iii) restructurings through a
recapitalization, extraordinary dividend, stock repurchase, spin-off, joint
venture or otherwise and/or (iv) any proposed Business Combination involving
the Company and another party (a "Purchaser"). This letter agreement is to
confirm our understanding with respect to our engagement. As used in this
letter agreement, the term "Business Combination" means, whether effected in
one transaction or a series of transactions, (a) any merger, consolidation,
reorganization or other business combination pursuant to which the business of
the Company is combined with that of one or more Purchasers or one or more
persons formed by or affiliated with a Purchaser, including, without
limitation, any joint venture (b) the acquisition, directly or indirectly, by
one or more Purchasers of more than 70% (or more than 50% up to and including
70% in the event that the Company's Board of Directors approves the Business
Combination) of the then outstanding capital stock of the Company by way of a
tender or exchange offer, a negotiated purchase or other means or (c) the
acquisition, directly or indirectly, by one or more Purchasers of all or
substantial portion of the assets of, or of any right to all or a substantial
portion of the revenues or income of, the Company by way of a negotiated
purchase, lease, license, exchange, joint venture or other means.
MLGA will assist the Company in identifying Purchasers and in
analyzing, structuring, negotiating and effecting potential strategic
alternatives on the terms and conditions of this letter agreement, and will work
with Merrill Lynch and Co. ("Merrill Lynch") in this connection as long as
Merrill Lynch is retained by the Company, and MLGA agrees that the Company will
approve any potential Purchaser prior to MLGA contacting any such Purchaser.
<PAGE> 2
Mr. Barry L. Phillips
September 26, 1997
Page 2
If, during the period MLGA is retained by the Company or within one
year thereafter, (a) a Business Combination is consummated or (b) the Company
enters into an agreement with any Purchaser which subsequently results in a
Business Combination, the Company agrees to pay a fee to MLGA for its financial
advisory services in the amounts of (x) an amount equal to 0.42% of the
aggregate purchase price ("Aggregate Purchase Price") paid in any such Business
Combination involving an Aggregate Purchase Price of $192.1 million or less, and
(y) an amount equal to 1.6667% of the incremental Aggregate Purchase Price paid
above $192.1 million in any such Business Combination, payable in cash upon the
closing of such Business Combination or, in the case of a tender offer or
exchange offer, upon the first purchase or exchange of shares pursuant to such
tender offer or exchange offer, as the case may be.
The Company and MLGA agree that any fee payable hereunder with respect
to a Business Combination described in clause (b) of the first paragraph of
this letter agreement will be computed as if all the then outstanding shares of
capital stock of the Company were acquired in such Business Combination at the
price per share equal to the price paid per share of capital stock in such
Business Combination, in which event no additional fee will become payable by
the Company hereunder with respect to any other Business Combination thereafter
consummated.
For purposes of this letter agreement, the term "Aggregate Purchase
Price" means an amount equal to the sum of the aggregate fair market value of
my securities issued and any other non-cash consideration delivered (including,
without limitation, any joint venture interest delivered to, or retained by,
the Company), and any cash consideration paid, to the Company or its security
holders in connection with Business Combination and the amount of all
indebtedness of the Company or any subsidiary of the Company, which is assumed
or acquired by a Purchaser or retired or defeased in connection with such
Business Combination. The fair market value of any securities issued and any
other non-cash consideration delivered or retained in connection with a
Business Combination will be the value determined by the Company, Merrill
Lynch, and MLGA on the date that the Board of Directors of the Company approves
the Business Combination.
In addition to any fees that may be payable to MLGA under this letter
agreement, the Company agrees to reimburse MLGA, upon request made from time to
time, for its reasonable out-of-pocket expenses incurred in connection with
MLGA's activities under this letter agreement, including, without limitation,
the reasonable fees and disbursements of its legal counsel; PROVIDED HOWEVER,
that the Company must approve in advance all expenses in excess of a cumulative
total of $50,000.
The company will furnish MLGA (and will request that each prospective
Purchaser with which the Company enters into negotiations furnish MLGA) with
such information as MLGA believes appropriate to its assignment (all such
information so furnished being the "Information"). The Company recognizes and
confirms that MLGA
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Mr. Barry L. Phillips
September 26, 1997
Page 3
(a) will use and rely primarily on the Information and on information available
from generally recognized public sources in performing the services contemplated
by this letter agreement, (b) does not assume responsibility for the accuracy or
completeness of the Information and such other information and (c) will not make
an appraisal of any assets of the Company or any prospective Purchaser.
The Company agrees to indemnify MLGA and its affiliates and their
respective partners, directors, officers, employees, agents and controlling
persons (MLGA and each such person being an "Indemnified Party") from and
against any and all losses, claims, damages and liabilities, joint or several,
to which such Indemnified Party may become subject under any applicable federal
or state law, or otherwise, and related to or arising out of any Business
Combination contemplated by this letter agreement or the engagement of MLGA
pursuant to, and the performance by MLGA of the services contemplated by, this
letter agreement and will reimburse any Indemnified Party for all expenses
(including counsel fees and expenses) as they are incurred in connection with
the investigation of, preparation for or defense of any pending or threatened
claim or any action or proceeding arising therefrom, whether or not such
Indemnified Party is a party and whether or not such claim, action or proceeding
is initiated or brought by or on behalf of the Company. The Company will not be
liable under the foregoing indemnification provision to the extent that any
loss, claim, damage, liability or expense is found in a final judgment by a
court to have resulted from MLGA's bad faith or gross negligence. The Company
also agrees that no Indemnified Party shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the Company or its security
holders or creditors related to or arising out of the engagement of MLGA
pursuant to, or the performance by MLGA of the services contemplated by, this
letter agreement except to the extent that any loss, claim, damage or liability
is found in a final judgment by a court to have resulted from MLGA's bad faith
or gross negligence.
If the indemnification of an Indemnified Party provided for in this
letter agreement is for any reason held unenforceable the Company agrees to
contribute to the losses, claims, damages and liabilities for which such
indemnification is held unenforceable (i) in such proportion as is appropriate
to reflect the relative benefits to the Company, on the one hand, and MLGA on
the other hand, of the Business Combination as contemplated (whether or not the
Business Combination is consummated) or (ii) if (but only if) the allocation
provided for in clause (i) is for any reason held unenforceable, in such
proportion as is appropriate to reflect not only the relative benefits, referred
to in clause (i) but also the relative fault of the Company, on the one hand,
and MLGA on the other hand, as well as any other relevant equitable
considerations. The Company agrees that for the purposes of this paragraph the
relative benefits to the Company and MLGA of the Business Combination as
contemplated shall be deemed to be in the same proportion that the total value
received or contemplated to be received by the Company or its security holders,
as the case may be, as a result of or in connection with the Business
Combination bears to the fees paid or to be paid to MLGA under this letter
agreement;
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Mr. Barry Phillips
September 26, 1997
Page 4
PROVIDED HOWEVER, that, to the extent permitted by applicable law, in no event
shall the Indemnified Parties be required to contribute an aggregate amount in
excess of the aggegate fees actually paid to MLGA under this letter agreement.
The Company agrees that, without MLGA's prior written consent, it will
not settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which indemnification could
be sought under the indemnification provision of this letter agreement (whether
or not MLGA or any otber Indemnified Party is an actual or potential party to
such claim, action or proceeding), unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party from all liability
arising out of such claim, action or proceeding.
The Company acknowledges and agrees that MLGA has been retained to act
solely as financial advisor to the Company. In such capacity, MLGA shall act as
an independent contractor, and any duties of MLGA arising out of its engagement
pursuant to this letter agreement shall be owed solely to the Company.
MLGA's engagement hereunder may be terminated by either the Company or
MLGA following ninety (90) days written notice to that effect to the other
party, it being understood that the provisions relating to the payment of fees
and expenses, indemnification, limitations on the liability of Indemnified
Parties, contribution, settlements, the status of MLGA as an independent
contractor, the limitation on to whom MLGA shall owe any duties and waiver of
the right to trial by jury will survive any such termination.
In the event that an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company or any Purchaser in which such Indemnified Party is not named as a
defendant, the Company agrees to reimburse MLGA for all expenses incurred by it
in connection with such Indemnified Party's appearing and preparing to appear as
such a witness, including, without limitation, the fees and disbursements of its
legal counsel.
No waiver, amendment or other modification of this letter agreement
shall be effective unless in writing and signed by each party to be bound
thereby.
This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of Connecticut applicable to contracts executed in
and to be performed in that state.
Each of MLGA and the Company (in its own behalf and, to the extent
permitted by applicable law, on behalf of its shareholders) waives all right to
trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise)
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Mr. Barry L. Phillips
September 26, 1997
Page 5
related to or arising out of the engagement of MLGA pursuant to, or the
performance by MLGA of the services contemplated by, this letter agreement.
Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to MLGA the duplicate copy of this letter enclosed
herewith.
Very truly yours,
MORGAN LEWIS GITHENS & AHN
BY /s/ Perry J. Lewis
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Partner
Accepted and Agreed
to as of the date first
written above:
GRADALL INDUSTRIES, INC.
By /s/ Barry L. Phillips
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Barry L. Phillips
President and Chief Executive Officer
