SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
(AMENDMENT NO. 2)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
-------------------------------
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
(Name of Subject Company)
WHX CORPORATION
GT ACQUISITION CORP.
(Bidders)
COMMON STOCK, PAR VALUE $.25 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
379335 10 2
(CUSIP Number of Class of Securities)
MR. RONALD LABOW
CHAIRMAN OF THE BOARD
WHX CORPORATION
110 EAST 59TH STREET
NEW YORK, NY 10022
TELEPHONE: (212) 355-5200
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
with a copy to:
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 753-7200
-------------------------------
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
$223,557,012.00 $44,711.40
* For purposes of calculating the filing fee only. This calculation
assumes the purchase of an aggregate of 21,291,144 shares of Common
Stock, par value $.25 per share (the "Shares") (and the associated
Preferred Stock Purchase Rights (the "Rights")) of the subject company
at a price of $10.50 per Share (and Right), net to the seller in cash,
without interest thereon. The amount reflects the purchase of
22,039,455 outstanding Shares and 1,425,489 Shares issuable pursuant to
the exercise of presently exercisable options, less 2,173,800 shares
owned by the bidders.
** The amount of the filing fee, calculated in accordance with Rule
0-11(d) of the Securities Exchange Act of 1934, as amended, equals
1/50th of one percent of the aggregate value of cash offered by the
bidders.
<PAGE>
[ ] Check 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: Not applicable
Form or Registration No.: Not applicable
Filing Party: Not applicable
Date Filed: Not applicable
-2-
<PAGE>
CUSIP NO. 379335 10 2 PAGE 3 OF 10
14D-1
1. NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WHX Corporation (E.I.N.: 13-3768097)
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(e) or 2(f) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
2,173,8001(1)
- --------------------------------------------------------------------------------
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW
(7) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (7)
9.9%
- --------------------------------------------------------------------------------
10. TYPE OF REPORTING PERSON
HC and CO
- --------------------------------------------------------------------------------
- ----------------------------
(1) By virtue of the fact that Wheeling-Pittsburgh Capital Corp.
is a wholly-owned subsidiary of WHX Corporation, WHX
Corporation is deemed to beneficially own the shares held by
Wheeling-Pittsburgh Capital Corp.
<PAGE>
CUSIP NO. 379335 10 2 PAGE 4 OF 10
14D-1
1. NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WHEELING-PITTSBURGH CAPITAL CORPORATION (E.I.N: 13-3723443)
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(e) or 2(f) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
2,173,800 Common Shares
- --------------------------------------------------------------------------------
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7)
EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
9. PERCENT OF CLASS REPRESENTED BY AMOUNT
IN ROW (7)
9.9%
- --------------------------------------------------------------------------------
10. TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 379335 10 2 PAGE 5 OF 10
14D-1
1. NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GT ACQUISITION CORP. (E.I.N.: 13-4035558)
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(e) or 2(f) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0 Common Shares
- --------------------------------------------------------------------------------
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7)
EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
9. PERCENT OF CLASS REPRESENTED BY AMOUNT
IN ROW (7)
0.0%
- --------------------------------------------------------------------------------
10. TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 379335 10 2 PAGE 6 OF 10
14D-1
This Schedule 14D-1 also constitutes Amendment No. 2 to the statement
on Schedule 13D of WHX Corporation and Wheeling-Pittsburgh Capital Corp. filed
on October 5, 1998, as amended by Amendment No. 1 on December 15, 1998. The item
numbers and responses thereto set forth below are in accordance with the
requirements of Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Global Industrial Technologies,
Inc., a Delaware corporation (the "Company"). The address of the Company's
principal executive offices is 2121 San Jacinto Street, Suite 2500, L.B. 31,
Dallas, Texas 75201.
(b) This Tender Offer Statement on Schedule 14D-1 relates to the offer
by GT Acquisition Corp. (the "Purchaser"), a Delaware corporation and a wholly
owned subsidiary of WHX Corporation, a Delaware corporation (the "Parent"), to
purchase all outstanding shares of Common Stock, par value $.25 per share (the
"Shares") of the Company, including the associated Preferred Stock Purchase
Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of
October 31, 1995, as amended on February 16, 1998, September 18, 1998 and
October 5, 1998 (as so amended, the "Rights Agreement"), between the Company and
The Bank of New York, as Rights Agent, at a price of $10.50 per Share, net to
the seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated December 17, 1998 (the
"Offer to Purchase"), and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, constitute the "Offer"). The
information set forth under "Introduction" in the Offer to Purchase annexed
hereto as Exhibit (a)(1) is incorporated herein by reference.
(c) The information set forth in Section 6 "Price Range of Shares;
Dividends" in the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d); (f)-(g) This Statement is being filed by the Purchaser and the
Parent. The information set forth in the Offer to Purchase under "Introduction,"
in Section 9 "Certain Information Concerning the Purchaser and the Parent" and
in Schedule I is incorporated herein by reference.
(e) During the last five years, neither the Purchaser, the Parent nor
any persons controlling the Purchaser, nor, to the best knowledge of the
Purchaser or the Parent, any of the persons listed on Schedule I to the Offer to
Purchase has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) The information set forth under "Introduction," in Section 11
"Background of the Offer; Contacts with the Company," Section 8 "Certain
Information Concerning the Company" and in Section 9 "Certain Information
Concerning the Purchaser and the Parent" in the Offer to Purchase is
incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth under "Introduction" and in Section
10 "Source and Amount of Funds" in the Offer to Purchase is incorporated herein
by reference.
(c) Not applicable.
<PAGE>
CUSIP NO. 379335 10 2 PAGE 7 OF 10
14D-1
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(d) The information set forth under "Introduction," and in Section
12 "Purpose of the Offer; Proposed Merger; Plans for the Company" in the Offer
to Purchase is incorporated herein by reference.
(e)-(g) The information set forth in Section 12 "Purpose of the Offer;
Proposed Merger; Plans for the Company," and in Section 7 "Effect on the Market
for the Shares, Stock Exchange Listing and Exchange Act Registration" in the
Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) The information set forth in the Offer to Purchase under
"Introduction," in Section 9 "Certain Information Concerning the Purchaser and
the Parent" and in Schedule II to the Offer to Purchase is incorporated herein
by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in Section 10 "Source and Amount of Funds,"
and Section 12 "Purpose of the Offer; The Proposed Merger; Plans for the
Company" in the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in Section 16 "Fees and Expenses" in the
Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 9 "Certain Information Concerning
the Purchaser and the Parent" and in Schedule III to the Offer to Purchase is
incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
(a) Not applicable.
(b)-(c) The information set forth under "Introduction" and in Section
15 "Certain Legal Matters; Regulatory Approvals" in the Offer to Purchase is
incorporated herein by reference.
(d)-(e) Not applicable.
(f) The information set forth in the Offer to Purchase and the Letter
of Transmittal, copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), respectively, is incorporated herein by reference.
<PAGE>
CUSIP NO. 379335 10 2 PAGE 8 OF 10
14D-1
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a) (1) Offer to Purchase, dated December 17, 1998.
(2) Letter of Transmittal.
(3) Notice of Guaranteed Delivery.
(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(5) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(7) Text of Press Release issued by WHX Corporation on
December 17, 1998.
(8) Summary Advertisement published in the New York Times on
December 17, 1998.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: December 17, 1998
WHX CORPORATION
By: /s/ Stewart E. Tabin
------------------------
Name: Stewart E. Tabin
Title: Assistant Treasurer
GT ACQUISITION CORP.
By: /s/ Stewart E. Tabin
------------------------
Name: Stewart E. Tabin
Title: Vice President
-9-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
(a) (1) Offer to Purchase, dated December 17, 1998.
(2) Letter of Transmittal.
(3) Notice of Guaranteed Delivery.
(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(5) Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
(6) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(7) Text of Press Release issued by WHX Corporation on
December 17, 1998.
(8) Summary Advertisement published in the New York Times
on December 17, 1998.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
-10-
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
AT
$10.50 PER SHARE
BY
GT ACQUISITION CORP.,
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS EXTENDED.
- ------------------------ THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS,
(1)THE PREFERRED STOCK PURCHASE RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF
DIRECTORS OF THE COMPANY OR THE PURCHASER BEING SATISFIED, IN ITS REASONABLE
JUDGMENT, THAT SUCH PREFERRED STOCK PURCHASE RIGHTS ARE INVALID OR OTHERWISE
INAPPLICABLE TO THE OFFER (THE "RIGHTS CONDITION"), (2) THE PURCHASER BEING
SATISFIED, IN ITS REASONABLE JUDGMENT, THAT THE PROPOSED MERGER CAN BE
CONSUMMATED WITHOUT THE NEED FOR A SUPERMAJORITY VOTE OF THE COMPANY'S
STOCKHOLDERS PURSUANT TO ARTICLE VI OF THE COMPANY'S CHARTER (THE "SUPERMAJORITY
CONDITION"), (3) THE PURCHASER BEING SATISFIED, IN ITS REASONABLE JUDGMENT, THAT
THE PROVISIONS OF SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW HAVE BEEN
COMPLIED WITH OR ARE INVALID OR OTHERWISE INAPPLICABLE TO THE OFFER AND THE
PROPOSED MERGER (THE "BUSINESS COMBINATION CONDITION"), (4) THE COMPANY NOT
HAVING ENTERED INTO OR EFFECTUATED ANY AGREEMENT OR TRANSACTION WITH ANY PERSON
OR ENTITY (INCLUDING ITS STOCKHOLDERS) HAVING THE EFFECT OF IMPAIRING THE
PURCHASER'S ABILITY TO ACQUIRE THE COMPANY OR OTHERWISE DIMINISHING THE EXPECTED
ECONOMIC VALUE TO THE PURCHASER OF THE ACQUISITION OF THE COMPANY, OR THE
COMPANY NOT POSTPONING ITS 1999 ANNUAL MEETING OF STOCKHOLDERS OR TAKING ANY
OTHER ACTION THAT WOULD IMPEDE THE PARENT'S ABILITY TO NOMINATE ONE OR MORE
DIRECTORS FOR ELECTION OR ITS ABILITY TO MAKE ANY OTHER PROPOSALS TO BE VOTED
UPON BY STOCKHOLDERS AT SUCH MEETING (THE "DEFENSIVE ACTION CONDITION"), AND (5)
ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS
ACT OF 1976, AS AMENDED, HAVING EXPIRED OR BEEN TERMINATED PRIOR TO THE
EXPIRATION OF THE OFFER (THE "HSR CONDITION"), SEE INTRODUCTION AND SECTION 14.
THE OFFER IS NOT SUBJECT TO ANY MINIMUM NUMBER OF SHARES BEING TENDERED AND IS
NOT CONDITIONED ON OBTAINING FINANCING.
------------------------
December 17, 1998
<PAGE>
IMPORTANT
Any stockholder desiring to tender all or any portion of such
stockholder's Shares, and the associated Rights, should either (i) complete and
sign the Letter of Transmittal (or a facsimile thereof) in accordance with the
instructions in the Letter of Transmittal, have such stockholder's signature
thereon guaranteed if required by Instruction 1 to the Letter of Transmittal,
mail or deliver the Letter of Transmittal (or such facsimile thereof) and any
other required documents to the Depositary and either deliver the certificates
for such Shares and, if separate, the certificate(s) representing the associated
Rights, to the Depositary along with the Letter of Transmittal (or a facsimile
thereof) or deliver such Shares (and associated Rights, if applicable) pursuant
to the procedure for book-entry transfer set forth in Section 3 prior to the
expiration of the Offer or (ii) request such stockholder's broker, dealer,
commercial bank, trust company or other nominee to effect the transaction for
such stockholder. A stockholder having Shares (and associated Rights, if
applicable) registered in the name of a broker, dealer, commercial bank, trust
company or other nominee must contact such person if he or she desires to tender
such Shares (and associated Rights, if applicable).
Any stockholder who desires to tender Shares, and the associated
Rights, and whose certificates for such Shares (and associated Rights, if
applicable) are not immediately available, or who cannot comply with the
procedures for book-entry transfer described in this Offer to Purchase on a
timely basis, may tender such Shares (and associated Rights, if applicable) by
following the procedures for guaranteed delivery set forth in Section 3.
Questions and requests for assistance or for additional copies of this
Offer to Purchase, the Letter of Transmittal or other tender offer materials may
be directed to the Information Agent at its address and telephone number set
forth on the back cover of this Offer to Purchase.
-i-
<PAGE>
TABLE OF CONTENTS
PAGE
INTRODUCTION................................................................1
1. Terms of the Offer; Expiration Date................................6
2. Acceptance for Payment and Payment for Shares......................7
3. Procedures for Tendering Shares....................................8
4. Withdrawal Rights.................................................11
5. Certain Federal Income Tax Consequences...........................12
6. Price Range of Shares; Dividends..................................13
7. Effect on the Market for the Shares, Stock Exchange Listing and
Exchange Act Registration.........................................14
8. Certain Information Concerning the Company........................15
9. Certain Information Concerning the Purchaser and the Parent.......17
10. Source and Amount of Funds........................................21
11. Background of the Offer; Contacts with the Company................21
12. Purpose of the Offer; Proposed Merger; Plans for the Company......23
13. Dividends and Distributions.......................................25
14. Conditions of the Offer...........................................26
15. Certain Legal Matters; Regulatory Approvals.......................29
16. Fees and Expenses.................................................31
17. Miscellaneous.....................................................31
Schedule I -- Information Concerning the Directors and Executive Officers
of the Parent and the Purchaser..............................32
Schedule II -- Transactions in the Securities of the Company...............36
Schedule III - WHX Corporation Unaudited Pro Forma Condensed
Financial Statements........................................37
-ii-
<PAGE>
TO THE HOLDERS OF COMMON STOCK OF GLOBAL INDUSTRIAL TECHNOLOGIES, INC.:
INTRODUCTION
GT Acquisition Corp. (the "Purchaser") hereby offers to purchase any and all
of the outstanding shares of Common Stock, par value $0.25 per share (the
"Shares"), of Global Industrial Technologies, Inc., a Delaware corporation (the
"Company"), including the associated Preferred Stock Purchase Rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of October 31, 1995,
as amended on February 16, 1998, September 18, 1998 and October 5, 1998 (as so
amended, the "Rights Agreement"), between the Company and The Bank of New York,
as Rights Agent (the "Rights Agent"), at a price of $10.50 per Share, net to the
seller in cash, without interest thereon (the "Offer Price"), upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the related
Letter of Transmittal (which, as amended from time to time, together constitute
the "Offer"). The Purchaser is a Delaware corporation and a wholly owned
subsidiary of WHX Corporation, a Delaware corporation (the "Parent"). Unless the
context otherwise requires, all references to Shares include the associated
Rights and all references to the Rights include the benefits that may inure to
holders of the Rights pursuant to the Rights Agreement, including the right to
receive any payment due upon redemption of the Rights. Based on publicly
available information, the Purchaser believes that one Right is currently
associated with each Share.
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes upon the purchase of Shares by the Purchaser
pursuant to the Offer. The Purchaser will pay all charges and expenses of Harris
Trust Company of New York, as depositary (the "Depositary"), and Innisfree M&A
Incorporated, as information agent (the "Information Agent"), incurred in
connection with the Offer.
See Section 16.
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The Purchaser intends to propose, and to seek to have
the Company consummate as soon as practicable after consummation of the Offer, a
merger or similar business combination (the "Proposed Merger") with the
Purchaser or another direct or indirect subsidiary of the Parent, pursuant to
which each then outstanding Share (other than Shares held by the Parent, the
Purchaser or any other wholly owned subsidiary of the Parent, Shares held in the
treasury of the Company and Shares held by stockholders who properly exercise
appraisal rights under Delaware law) would be converted into the right to
receive in cash the price per Share paid by the Purchaser pursuant to the Offer
and the Company would become a wholly owned subsidiary of the Parent.
Although the Purchaser will seek to have the Company consummate the Proposed
Merger as soon as practicable after consummation of the Offer, if the Board of
Directors of the Company (the "Company Board") opposes the Offer and/or the
Proposed Merger, certain terms of the Rights and certain provisions of the
Delaware General Corporation Law (the "DGCL"), the Company's Certificate of
Incorporation, as amended (the "Company Charter"), and the Company's By-Laws
(the "By-Laws") may affect the ability of the Purchaser to obtain control of the
Company and to effect the Proposed Merger. Depending on the Company's response
to the Offer and the Proposed Merger, the Parent may take such further actions
as it deems appropriate to achieve its objective of acquiring control of the
Company, including conducting a proxy contest at the Company's 1999 Annual
Meeting of Stockholders (the "Company Annual Meeting"). However, the Parent has
not yet made any determination whether to do so. Accordingly, the timing and
final terms of the Proposed Merger will depend on a variety of factors and legal
requirements, the actions of the Company Board of the Company, the number of
Shares acquired by the Purchaser pursuant to the Offer, and whether the Rights
Condition, the Supermajority Condition and the Business Combination Condition
(each as defined below) are satisfied or waived. For a discussion of certain
appraisal rights that will be available to stockholders upon consummation of the
Proposed Merger, see Section 12.
In connection with the Offer and the Proposed Merger, the Parent and the
Purchaser intend, if necessary, to nominate, and solicit proxies for the
selection of, one or more nominees who support the Offer and the Proposed Merger
(the "Parent Nominees") at the Company Annual Meeting and to solicit proxies for
certain other proposals. The Parent expects that, if elected, and subject to
their fiduciary duties under applicable law, the Parent Nominees would be
proponents of Board
<PAGE>
action to: approve the Proposed Merger; amend the Rights Agreement or redeem the
Rights, or otherwise act to ensure that the Rights Condition is satisfied;
satisfy the Supermajority Condition, satisfy the Business Combination Condition;
and take any other actions necessary to permit the Offer and the Proposed Merger
to be consummated. Such solicitation will be made pursuant to separate proxy
materials complying with the requirements of Section 14(a) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "Exchange Act"). The Company has disclosed in its Proxy
Statement filed with the SEC on February 4, 1998 that the Company Annual Meeting
will be held on Wednesday, March 17, 1999. In accordance with the applicable
provisions of the Company Charter, any nominations for the class of directors to
be elected at the Company Annual Meeting by the Parent must be submitted to the
Company on or before January 25, 1999.
The Parent intends to continue to seek to negotiate with the Company with
respect to the acquisition of the Company by the Parent. The Purchaser reserves
the right to amend the Offer upon entry into an acquisition agreement regarding
a business combination with the Company or otherwise or to negotiate an
acquisition agreement or other agreement regarding a business combination with
the Company not involving a tender offer. See Section 14.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY,
CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO THE COMPANY ANNUAL MEETING OR
ANY SPECIAL MEETING OF THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION WHICH
THE PARENT AND/OR THE PURCHASER MAY MAKE WILL BE MADE ONLY PURSUANT TO SEPARATE
PROXY SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF
SECTION 14(a) OF THE EXCHANGE ACT, AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
CERTAIN CONDITIONS TO THE OFFER
The Offer is conditioned upon, among other things, (i) the Rights having
been redeemed by the Company Board or the Purchaser being satisfied, in its
reasonable judgment, that the Rights are invalid or otherwise inapplicable to
the Offer (the "Rights Condition"); (ii) the Purchaser being satisfied, in its
reasonable judgment, that the Proposed Merger can be consummated without the
need for a supermajority vote of the Company's stockholders pursuant to Article
VI of the Company Charter (the "Supermajority Condition"); (iii) the Purchaser
being satisfied, in its reasonable judgment, that the provisions of Section 203
of the DGCL have been complied with or are invalid or otherwise inapplicable to
the Offer and the Proposed Merger (the "Business Combination Condition"); (iv)
the Company not having entered into or effectuated any agreement or transaction
with any person or entity (including its stockholders) having the effect of
impairing the Purchaser's ability to acquire the Company or otherwise
diminishing the expected economic value to the Purchaser of the acquisition of
the Company, or the Company not postponing the Company Annual Meeting or taking
any other action that would impede the Parent's ability to nominate one or more
directors for election or its ability to make any other proposals to be voted
upon by stockholders at such meeting (the "Defensive Action Condition"); and (v)
any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act") having expired or been terminated prior
to the expiration of the Offer (the "HSR Condition"). See Section 14.
The Rights Condition. Consummation of the Offer is conditioned upon the
Rights having been redeemed by the Company Board or the Purchaser being
satisfied, in its reasonable judgment, that the Rights are invalid or otherwise
inapplicable to the Offer.
The following discussion is based upon the Company's Form 8-B filed with the
Securities and Exchange Commission (the "SEC") on October 31, 1995, as amended
by Forms 8-A/A on March 12, 1998, September 21, 1998 and October 5, 1998 (the
"Form 8-A").
On October 20, 1995, the Company Board declared a dividend distribution of
one Right for each Share and executed the Rights Agreement. One Right was
distributed with respect to each outstanding Share to stockholders of record on
-2-
<PAGE>
November 1, 1995. Under the Rights Agreement, each Right entitles the holder to
purchase one Share at an exercise price of $45.00, subject to adjustment.
Under the Rights Agreement, until the close of business on the Distribution
Date (which is defined as the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (the
"Acquiring Person") has become the beneficial owner of 10% or more of the
outstanding voting stock of the Company and (ii) 10 business days (or such later
date as the Company Board shall determine) following the commencement of a
tender offer or exchange offer which would result in a person or group
beneficially owning 10% or more of the outstanding Shares), the Rights will be
evidenced by the certificates evidencing Shares ("Share Certificates") and will
be transferred with and only with Share Certificates. As soon as practicable
after the Distribution Date, certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Shares as of the close
of business on the Distribution Date, and thereafter the separate Rights
Certificates alone will evidence the Rights. Under the terms of the Rights
Agreement, the Parent's acquisition of beneficial ownership of less than 10% of
the Shares pursuant to the Offer or otherwise would not cause the Distribution
Date to occur.
The Rights are not exercisable until the Distribution Date. The Rights will
expire at the close of business on July 28, 2002 unless earlier redeemed by the
Company as described below.
At any time prior to the Distribution Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (the "Redemption
Price"). Immediately upon the action of the Company Board ordering redemption of
the Rights, the Rights will terminate and the only right to which the holders of
Rights will be entitled will be the right to receive the Redemption Price.
Based on publicly available information, the Purchaser believes that, as of
the date of this Offer, the Rights were not exercisable, Rights Certificates
have not been issued and the Rights were evidenced by the Share Certificates.
The Purchaser believes that, as a result of the Purchaser's public announcement
of the Offer, the Distribution Date will be no later than Monday, January 4,
1999 unless prior to such date the Company Board redeems the Rights or amends
the Rights Agreement to delay the Distribution Date.
The foregoing summary of the Rights Agreement does not purport to be
complete and is qualified in its entirety by reference to the Form 8-A, the text
of the Rights Agreement as an exhibit thereto filed with the SEC and subsequent
amendments to the Rights Agreement as filed with the SEC. Copies of these
documents may be obtained in the manner set forth in Section 8 below.
Stockholders are required to tender one Right for each Share tendered in
order to effect a valid tender of such Share. If the Distribution Date does not
occur prior to the Expiration Date, a tender of Shares will automatically
constitute a tender of the associated Rights. See Section 3.
The Purchaser is hereby requesting that the Company Board redeem the Rights
or take the other action described below. The Purchaser believes that, under
applicable law and under the circumstances of the Offer, the Company Board is
obligated by its fiduciary responsibilities to give careful consideration to
redeeming the Rights or rendering the Rights Agreement inapplicable to the
Offer, and that its failure to do so would be a violation of law. However, there
can be no assurance that the Company Board will do so.
Supermajority Condition - Consummation of the Offer is conditioned upon the
Purchaser being satisfied, in its sole discretion, that the Proposed Merger can
be consummated without the need for a supermajority vote of the Company's
stockholders pursuant to Article VI of the Company Charter.
Article VI of the Company Charter requires that certain business
combinations, such as the Proposed Merger, between the Company and any person
that, directly or indirectly, is the beneficial owner of 10% or more of the
outstanding voting power of the Company (an "Interested Person") be approved by
70% of the outstanding Shares (the "70% Vote
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Requirement") unless (i) the combination shall have been approved by a majority
of the directors who are unaffiliated with and not a nominee of such Interested
Person (the "Continuing Directors") or (ii) certain "fair price" provisions are
satisfied. The "fair price" provisions generally require, among other things,
(i) that the stockholders receive at least the same amount of cash or fair
market value of other consideration as such Interested Person paid for any of
its Shares; (ii) that such Interested Person not receive any loans or guarantees
from the Company or make major changes in the Company's business or equity
capital structure prior to the consummation of the such business combination;
and (iii) that a proxy statement relating to the proposed business combination
be mailed to the stockholders soliciting their approval of the proposed business
combination. The 70% Vote Requirement may be amended only by the vote or consent
of 70% of the stockholders of the Company.
The foregoing summary of Article VI of the Company Charter is qualified by
reference to the text thereof as filed by the Company with the SEC and which can
be examined or copies thereof obtained as set forth in Section 8 (except that it
will not be available at the regional offices of the SEC).
The Purchaser is hereby requesting that the Company Board promptly adopt a
resolution approving the Offer and the Proposed Merger for purposes of Article
VI of the Company Charter. The Purchaser believes that, under applicable law,
and under circumstances of the Offer, the Company Board is obligated by its
fiduciary responsibilities to give careful consideration to approving the Offer
and the Proposed Merger for purposes of Article VI of the Company Charter and
that its failure to do so would be a violation of law. However, there can be no
assurance that the Company Board will do so.
The Business Combination Condition. Consummation of the Offer is conditioned
upon the Purchaser being satisfied, in its reasonable judgment, that the
provisions of Section 203 of the DGCL have been complied with or are invalid or
otherwise inapplicable to the Offer and the Proposed Merger.
The acquisition by the Parent of beneficial ownership of 15% or more of the
Shares pursuant to the Offer, the Proposed Merger or otherwise, including the
timing and details thereof, are subject to, among other things, the provisions
of the DGCL, including Section 203 ("Section 203"). In general, Section 203
prevents a Delaware corporation from engaging in a "Business Combination"
(defined as any of a variety of transactions including mergers) with an
"Interested Stockholder" (defined generally as a person owning 15% or more of
the outstanding voting stock of a corporation) for a period of three years
following the date such person became an Interested Stockholder, unless, before
such person became an Interested Stockholder, the corporation's board of
directors approved either the Business Combination or the transaction in which
the stockholder became an Interested Stockholder.
The foregoing summary of Section 203 of the DGCL does not purport to be
complete and is qualified in its entirety by reference to the provisions of
Section 203 of the DGCL.
The Business Combination Condition would be satisfied if, prior to the
acquisition of beneficial ownership of 15% or more of the Shares pursuant to the
Offer or otherwise, (i) the Company Board approves either the Proposed Merger or
the purchase of Shares pursuant to the Offer, or (ii) the Purchaser, in its
reasonable judgment, were satisfied that Section 203 was invalid or otherwise
inapplicable to the Proposed Merger for any reason, including, without
limitation, those specified in Section 203.
The Purchaser is hereby requesting that the Company Board promptly adopt a
resolution approving the Offer and the Proposed Merger for purposes of Section
203. The Purchaser believes that, under applicable law and under the
circumstances of the Offer, the Company Board is obligated by its fiduciary
responsibilities to give careful consideration to approving the Offer and the
Proposed Merger for purposes of Section 203 and that its failure to do so would
be a violation of law. However, there can be no assurance that the Company Board
will do so.
The Defensive Action Condition. Consummation of the Offer is conditioned
upon the Company not having entered into or effectuated any agreement or
transaction with any person or entity (including its stockholders) having the
effect
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of impairing the Purchaser's ability to acquire the Company or otherwise
diminishing the expected economic value to the Purchaser of the acquisition of
the Company, or the Company not postponing the Company Annual Meeting or taking
any other action that would impede the Parent's ability to nominate one or more
directors for election or its ability to make any other proposals to be voted
upon by stockholders at such meeting. In connection with the Offer and Proposed
Merger, the Parent and the Purchaser intend, if necessary, to nominate, and
solicit proxies for the election of, the Parent Nominees to the class of
directors of the Board at the Company Annual Meeting and to solicit proxies for
certain other proposals. See Section 11. The Company has disclosed in its Proxy
Statement filed with the SEC on February 4, 1998 that the Company Annual Meeting
will be held on Wednesday, March 17, 1999. In accordance with the applicable
provisions of the Company Charter, any nominations for director by the Parent
must be submitted to the Company on or before January 25, 1999. Notwithstanding
the foregoing, a postponement of the Company Annual Meeting resulting from the
Company's change in its fiscal year from October 31 to December 31 shall not
violate the Defensive Action Condition, provided that the Company Annual Meeting
is not postponed beyond May 31, 1999.
The HSR Condition. Consummation of the Offer is conditioned upon the
expiration or termination of the waiting period applicable to the acquisition of
Shares pursuant to the Offer under the HSR Act.
The Parent will file on the date hereof with the Federal Trade Commission
(the "FTC") and the Antitrust Division of the Department of Justice (the
"Antitrust Division") a Premerger Notification and Report Form under the HSR Act
with respect to the Offer. Accordingly, the waiting period under the HSR Act
applicable to the Offer will expire at 11:59 p.m., New York City time, on
Monday, January 4, 1999, unless prior to the expiration or termination of the
waiting period the FTC or the Antitrust Division extends the waiting period by
requesting additional information or documentary material from the Parent. If
such a request is made, the waiting period applicable to the Offer will expire
on the tenth calendar day after the date of substantial compliance by the Parent
with such request. Thereafter, the waiting period may be extended by court order
or by consent of the Parent. The waiting period under the HSR Act may be
terminated by the FTC and the Antitrust Division prior to its expiration. For
information with respect to approvals required to be obtained prior to the
consummation of the Offer, including under the HSR Act, see Section 15.
* * * * *
In the event the Offer is not consummated for any reason, or in the event
that the Company does not act in a timely manner to assist in satisfying the
Rights Condition, the Supermajority Condition or the Business Combination
Condition, or in the event the Company takes any of the actions specified in the
Defensive Action Condition, the Purchaser and the Parent intend to explore all
options which may be available to them at such time, which may include without
limitation terminating this Offer, the acquisition of Shares through open market
purchases, privately negotiated transactions, or through amending the terms and
conditions of the Offer, making another tender offer or exchange offer or
otherwise, in each case upon such terms and at such prices as the Purchaser and
the Parent shall determine, which may be more or less than the Offer Price. The
Purchaser also reserves the right to dispose of Shares, to change the Offer
Price, and to decrease the number of Shares sought to be purchased in the Offer.
Certain other conditions to the consummation of the Offer are described in
Section 14. The Purchaser expressly reserves the right, in its sole discretion,
to waive any one or more of the conditions to the Offer. See Sections 14 and 15.
The Offer is not conditioned on the Purchaser obtaining financing. See Section
10.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
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1. TERMS OF THE OFFER; EXPIRATION DATE.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any extension or
amendment), the Purchaser will accept for payment and pay for any and all Shares
which are validly tendered prior to the Expiration Date (as hereinafter defined)
and not properly withdrawn in accordance with Section 4. The term "Expiration
Date" means 12:00 Midnight, New York City time, on Friday, January 15, 1999,
unless and until the Purchaser, in its sole discretion, shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall refer to the latest time and date at which the Offer, as
so extended by the Purchaser, shall expire.
Subject to the applicable regulations of the SEC, the Purchaser also
expressly reserves the right, in its sole discretion, at any time or from time
to time, to (i) subject to the conditions of the Offer set forth in Section 14,
decline to purchase any of the Shares tendered in the Offer and terminate the
Offer, and return all tendered Shares to the tendering stockholders, (ii) waive
or amend any or all conditions to the Offer to the extent permitted by
applicable law and, subject to complying with applicable rules and regulations
of the SEC, purchase any and all Shares validly tendered, or (iii) extend the
Offer and, subject to the right of stockholders to withdraw Shares until the
Expiration Date, retain the Shares which have been tendered during the period or
periods for which the Offer is extended.
The Purchaser expressly reserves the right, in its sole discretion, at any
time and from time to time, to extend for any reason the period of time during
which the Offer is open in accordance with the applicable regulations of the
SEC, including the occurrence of any of the conditions specified in the
Introduction and Section 14, by giving oral or written notice of such extension
to the Depositary. During any such extension, all Shares previously tendered and
not properly withdrawn will remain subject to the Offer, subject to the rights
of a tendering stockholder to withdraw Shares in accordance with the procedures
set forth in Section 4.
Subject to the applicable regulations of the SEC, the Purchaser also
expressly reserves the right, in its reasonable discretion, at any time and from
time to time, (i) to delay acceptance for payment of, or, regardless of whether
such Shares were theretofore accepted for payment, payment for, any Shares in
order to comply in whole or in part with any applicable law and (ii) to waive
any condition or otherwise amend the Offer in any respect, by giving oral or
written notice of such delay, waiver or amendment to the Depositary and by
making a public announcement thereof.
The Purchaser acknowledges that (i) Rule 14e-1(c) under the Exchange Act
requires the Purchaser to pay the consideration offered or return the Shares
tendered promptly after the expiration, termination or withdrawal of the Offer,
and (ii) the Purchaser may not delay acceptance for payment of, or payment for
(except as provided in clause (i) of the first sentence of the second preceding
paragraph), any Shares upon the occurrence of any of the conditions specified in
Section 14 without extending the period of time during which the Offer is open.
Any such extension, delay, termination, waiver or amendment will be followed
as promptly as practicable by public announcement thereof, with such
announcement in the case of an extension to be made no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. Subject to applicable law (including Rules 14d-4(c), 14d-6(d)
and 14e-1 under the Exchange Act, which require that material changes be
promptly disseminated to stockholders in a manner reasonably designed to inform
them of such changes) and without limiting the manner in which the Purchaser may
choose to make any public announcement, the Purchaser shall have no obligation
to publish, advertise or otherwise communicate any such public announcement
other than by issuing a press release to the Dow Jones News Service.
If the Purchaser makes a material change in the terms of the Offer or
information concerning the Offer, or if it waives a material condition of the
Offer, the Purchaser will disseminate additional tender offer materials and
extend the Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1
under the Exchange Act. The minimum period during which the Offer must remain
open following material changes in the terms of the Offer or information
concerning the Offer, other than a change in price or a change in percentage of
securities sought, will depend upon the facts and circumstances,
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<PAGE>
including the relative materiality of the changed terms or information. The SEC
has taken the position that an offer should generally remain open for a minimum
of five business days from the date a material change is first published, sent
or given to stockholders. With respect to a change in price or a change in
percentage of securities sought (other than an increase in the number of Shares
sought not in excess of 2% of the outstanding Shares), a minimum ten business
day period is required to allow for adequate dissemination to stockholders and
investor response. As used in this Offer to Purchase, "business day" has the
meaning set forth in Rule 14d-1 under the Exchange Act. Accordingly, if, prior
to the Expiration Date, the Purchaser increases or decreases the consideration
offered pursuant to the Offer, and if the Offer is scheduled to expire at any
time earlier than the period ending on the tenth business day from the date that
notice of such increase or decrease is first published, sent or given to holders
of Shares, the Offer will be extended at least until the expiration of such ten
business day period.
As of the date of this Offer to Purchase, the Rights are evidenced by the
certificates representing Shares and do not trade separately. Accordingly, by
tendering a certificate representing Shares, a stockholder is automatically
tendering a similar number of associated Rights. If, however, pursuant to the
Rights Agreement or for any other reason, the Rights detach and separate Rights
Certificates are issued, stockholders will be required to tender one Right for
each Share tendered in order to effect a valid tender of such Share.
A request is being made to the Company pursuant to Rule 14d-5 of the
Exchange Act and under Delaware Law for the use of the Company's stockholder
lists and security position listings for the purpose of disseminating the Offer
to stockholders. Upon compliance by the Company with this request, this Offer to
Purchase, the Letter of Transmittal, and all other relevant materials will be
mailed to record holders of Shares and will be furnished to brokers, dealers,
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the stockholders lists, or, if applicable, who are listed as
participants in a clearing agency's security position listing for subsequent
transmittal to beneficial owners of Shares following receipt of their lists or
listings from the Company or by the Company, if it so elects.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will purchase, by accepting for payment, and will pay
for, any and all Shares validly tendered prior to the Expiration Date (and not
properly withdrawn in accordance with Section 4) promptly after the later to
occur of (i) the Expiration Date and (ii) the satisfaction or waiver of the
conditions set forth in the Introduction and Section 14. The Purchaser expressly
reserves the right, in its discretion, to delay acceptance for payment of, or,
subject to applicable rules of the SEC, payment for, Shares in order to comply
in whole or in part with any applicable law. See Section 15. For a description
of the Purchaser's right to terminate the Offer and not accept for payment or
pay for Shares or to delay acceptance for payment of Shares, see Section 14.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of (i) the certificates
evidencing such Shares (the "Share Certificates") or timely confirmation of a
book-entry transfer (a "Book-Entry Confirmation") of such Shares, if such
procedure is available, into the Depositary's account at The Depository Trust
Company or the Philadelphia Depository Trust Company (each a "Book-Entry
Transfer Facility" and, collectively, the "Book-Entry Transfer Facilities")
pursuant to the procedures set forth in Section 3, (ii) the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, or, in
the case of a book-entry transfer, an Agent's Message (as defined below), and
(iii) any other documents required by the Letter of Transmittal. See Section 3.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering Shares, that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
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For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not properly
withdrawn if, as and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance of such Shares for payment. Payment for
Shares accepted pursuant to the Offer will be made by deposit of the purchase
price therefor with the Depositary, which will act as agent for tendering
stockholders for the purpose of receiving payments from the Purchaser and
transmitting payments to such tendering stockholders. Under no circumstances
will interest be paid on the Offer Price by the Purchaser, regardless of any
delay in making such payment. Upon the deposit of funds with the Depositary for
the purpose of making payments to tendering stockholders, the Purchaser's
obligation to make such payment shall be satisfied and tendering stockholders
must thereafter look solely to the Depositary for payment of amounts owed to
them by reason of the acceptance for payment of Shares pursuant to the Offer.
The Purchaser will pay any stock transfer taxes incident to the transfer to it
of validly tendered Shares, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, as well as any charges and expenses of the Depositary and
the Information Agent.
If any tendered Shares are not accepted for payment for any reason pursuant
to the terms and conditions of the Offer, or if Share Certificates are submitted
evidencing more Shares than are tendered, Share Certificates evidencing Shares
not purchased will be returned without expense to the tendering stockholder (or,
in the case of Shares tendered by book-entry transfer into the Depositary's
account at a Book-Entry Transfer Facility pursuant to the procedure set forth in
Section 3, such Shares will be credited to an account maintained at such
Book-Entry Transfer Facility) as promptly as practicable following the
expiration or termination of the Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration
to be paid per Share pursuant to the Offer, the Purchaser will pay such
increased consideration for all such Shares purchased pursuant to the Offer,
whether or not such Shares were tendered prior to such increase in
consideration.
The Purchaser reserves the right to transfer or assign, in whole at any
time, or in part from time to time, to the Parent or one or more direct or
indirect wholly owned subsidiaries of the Parent, the right to purchase all or
any portion of the Shares tendered pursuant to the Offer; provided, that any
such transfer or assignment will not relieve the Purchaser of its obligations
under the Offer and will in no way prejudice the rights of tendering
stockholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
3. PROCEDURES FOR TENDERING SHARES.
Valid Tender of Shares. In order for Shares to be validly tendered pursuant
to the Offer, the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or an
Agent's Message (in the case of any book-entry transfer), and any other required
documents, must be received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase prior to the Expiration Date and
either (i) the Share Certificates evidencing tendered Shares must be received by
the Depositary at one of such addresses or Shares must be tendered pursuant to
the procedure for book-entry transfer described below and a Book-Entry
Confirmation must be received by the Depositary, in each case prior to the
Expiration Date, or (ii) the tendering stockholder must comply with the
guaranteed delivery procedures described below.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY, IS AT THE
OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND DELIVERY WILL BE DEEMED MADE
ONLY WHEN ITEMS ARE ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at each of the Book-Entry Transfer Facilities for purposes of the
Offer within two business days after the date of this Offer to Purchase, and any
financial institution that is a participant in either of the Book-Entry Transfer
Facilities' system may make book-entry
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delivery of Shares by causing the Book-Entry Transfer Facility to transfer such
Shares into the Depositary's account at a Book-Entry Transfer Facility in
accordance with such Book-Entry Transfer Facility's procedures for transfer.
However, although delivery of Shares may be effected through book-entry transfer
at the Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees or an Agent's Message, and any other required documents must, in any
case, be transmitted to and received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase prior to the Expiration
Date or the tendering stockholder must comply with the guaranteed delivery
procedures described below. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER
FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Signature Guarantee. Signatures on all Letters of Transmittal must be
guaranteed by a firm which is a bank, broker, dealer, credit union, savings
association or other entity that is a member in good standing of the Securities
Transfer Agents Medallion Program (each, an "Eligible Institution"), unless the
Shares tendered thereby are tendered (i) by a registered holder of Shares who
has not completed either the box entitled "Special Delivery Instructions" or the
box entitled "Special Payment Instructions" on the Letter of Transmittal or (ii)
for the account of an Eligible Institution. See Instruction 1 of the Letter of
Transmittal.
If a Share Certificate is registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made, or Shares not
accepted for payment or not tendered are to be returned, to a person other than
the registered holder(s), then the Share Certificate must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appear on the Share Certificate, with the
signature(s) on such Share Certificate or stock powers guaranteed as described
above. See Instructions 1 and 5 of the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share Certificates are not immediately
available or time will not permit all required documents to reach the Depositary
prior to the Expiration Date or the procedure for book-entry transfer cannot be
completed on a timely basis, such Shares may nevertheless be tendered if all the
following conditions are satisfied:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser herewith, is
received by the Depositary as provided below prior to the Expiration Date;
and
(iii) the Share Certificates for all tendered Shares, in proper form
for transfer, or a Book-Entry Confirmation, together with a properly
completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantee (or, in the case of
a book-entry transfer, an Agent's Message) and any other documents required
by such Letter of Transmittal, are received by the Depositary within three
New York Stock Exchange ("NYSE") trading days after the date of execution of
the Notice of Guaranteed Delivery.
Any Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, facsimile transmission or mail to the Depositary and must include a
guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
IN ALL CASES, SHARES SHALL NOT BE DEEMED VALIDLY TENDERED, UNLESS A PROPERLY
COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED
FACSIMILE), OR AN AGENTS MESSAGE IN THE CASE OF A BOOK-ENTRY TRANSFER, IS
RECEIVED BY THE DEPOSITARY.
Notwithstanding any other provision hereof, payment for Shares purchased
pursuant to the Offer will, in all cases, be made only after timely receipt by
the Depositary of (i) the Share Certificates evidencing such Shares, or a
Book-Entry
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Confirmation of the delivery of such Shares, (ii) a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof) and (iii)
any other documents required by the Letter of Transmittal.
Distribution Of Rights. Holders of Shares will be required to tender one
Right for each Share tendered to effect a valid tender of such Share. Unless and
until the Distribution Date occurs, the Rights are represented by and
transferred with the Shares. See Introduction. Accordingly, if the Distribution
Date does not occur prior to the Expiration Date, a tender of Shares will
constitute a tender of the associated Rights. If a Distribution Date has
occurred, certificates representing a number of Rights equal to the number of
Shares being tendered must be delivered to the Depositary in order for such
Shares to be validly tendered. If a Distribution Date has occurred, a tender of
Shares without Rights constitutes an agreement by the tendering stockholder to
deliver certificates representing a number of Rights equal to the number of
Shares tendered pursuant to the Offer to the Depositary within three NYSE
trading days after the date such certificates are distributed. The Purchaser
reserves the right to require that it receive such certificates prior to
accepting Shares for payment. If a Distribution Date has occurred, unless the
Rights are redeemed prior to the Expiration Date, stockholders who sell their
Rights separately from their Shares and do not otherwise acquire Rights may not
be able to satisfy the requirements of the Offer for the tender of Shares. The
Purchaser will not pay any additional consideration for the Rights tendered
pursuant to the Offer.
Determination Of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tendered Shares pursuant to any of the procedures described above will be
determined by the Purchaser in its reasonable discretion, which determination
will be final and binding on all parties. The Purchaser reserves the absolute
right to reject any or all tenders of Shares determined by it not to be in
proper form or if the acceptance for payment of, or payment for, such Shares
may, in the opinion of the Purchaser's counsel, be unlawful. The Purchaser also
reserves the absolute right, in its sole discretion, to waive any of the
conditions of the Offer or any defect or irregularity in any tender with respect
to Shares of any particular stockholder, whether or not similar defects or
irregularities are waived in the case of other stockholders. In such event the
Purchaser will, if required, extend the Offer in accordance with the applicable
regulations of the SEC. No tender of Shares will be deemed to have been validly
made until all defects and irregularities have been cured or waived.
The Purchaser's interpretation of the terms and conditions of the Offer
(including the Letter of Transmittal and the instructions thereto) will be final
and binding. No tender of Shares will be deemed to have been validly made until
all defects and irregularities have been cured or waived by the Purchaser. None
of the Parent, the Purchaser, the Company, the Depositary, the Information Agent
or any other person will be under any duty to give notification of any defects
or irregularities in tenders or will incur any liability for failure to give any
such notification.
Appointment As Proxy. By executing a Letter of Transmittal as set forth
above, a tendering stockholder irrevocably appoints designees of the Purchaser
as such stockholder's proxies, each with full power of substitution, to the full
extent of such stockholder's rights with respect to the Shares tendered by such
stockholder and accepted for payment by the Purchaser (and any and all noncash
dividends, distributions, rights, other Shares, or other securities issued or
issuable in respect of such Shares). All such proxies shall be considered
coupled with an interest in the tendered Shares. This appointment will be
effective if, when, and only to the extent that, the Purchaser accepts such
Shares for payment pursuant to the Offer. Upon such acceptance for payment, all
prior proxies given by such stockholder with respect to such Shares and other
securities will, without further action, be revoked, and no subsequent proxies
may be given. The designees of the Purchaser will, with respect to the Shares
and other securities for which the appointment is effective, be empowered to
exercise all voting and other rights of such stockholder as they in their sole
discretion may deem proper at any annual, special, adjourned or postponed
meeting of the Company's stockholders, by written consent or otherwise, and the
Purchaser reserves the right to require that, in order for Shares or other
securities to be deemed validly tendered, immediately upon the Purchaser's
acceptance for payment of such Shares, the Purchaser must be able to exercise
full voting rights with respect to such Shares.
Backup Federal Income Tax Withholding. TO PREVENT BACKUP FEDERAL INCOME TAX
WITHHOLDING WITH RESPECT TO PAYMENT TO CERTAIN STOCKHOLDERS OF THE PURCHASE
PRICE FOR SHARES
-10-
<PAGE>
PURCHASED PURSUANT TO THE OFFER, EACH SUCH STOCKHOLDER MUST PROVIDE THE
DEPOSITARY WITH SUCH STOCKHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER AND
CERTIFY THAT SUCH STOCKHOLDER IS NOT SUBJECT TO BACKUP FEDERAL INCOME TAX
WITHHOLDING BY COMPLETING THE SUBSTITUTE FORM W-9 IN THE LETTER OF TRANSMITTAL.
IF BACKUP WITHHOLDING APPLIES WITH RESPECT TO A STOCKHOLDER, THE DEPOSITARY IS
REQUIRED TO WITHHOLD 31% OF ANY PAYMENTS MADE TO SUCH STOCKHOLDER. SEE
INSTRUCTION 9 OF THE LETTER OF TRANSMITTAL.
The Purchaser's acceptance for payment of Shares tendered pursuant to the
Offer will constitute a binding agreement between the tendering stockholder and
the Purchaser upon the terms and subject to the conditions of the Offer.
4. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 4, tenders of Shares (and, if
applicable, Rights) made pursuant to the Offer are irrevocable. Shares tendered
pursuant to the Offer may be withdrawn at any time prior to the Expiration Date
and, unless theretofore accepted for payment pursuant to the Offer, may also be
withdrawn at any time after February 15, 1999. Shares (and, if applicable,
Rights) may not be withdrawn unless the associated Rights are also withdrawn. A
withdrawal of Shares (and, if applicable, Rights) will also constitute a
withdrawal of the associated Rights.
If the Purchaser extends the Offer, is delayed in its acceptance for payment
of Shares or is unable to accept Shares for payment pursuant to the Offer for
any reason, then, without prejudice to the Purchaser's rights under the Offer,
the Depositary may, nevertheless, on behalf of the Purchaser, retain tendered
Shares, and such Shares may not be withdrawn except to the extent that tendering
stockholders are entitled to withdrawal rights as described in this Section 4.
Any such delay will be by an extension of the Offer to the extent required by
law.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder, if different from that of the person who tendered such
Shares. If Share Certificates evidencing Shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then, prior to the physical
release of such Share Certificates, the serial numbers shown on such Share
Certificates must be submitted to the Depositary and the signature(s) on the
notice of withdrawal must be guaranteed by an Eligible Institution, unless such
Shares have been tendered for the account of an Eligible Institution. If Shares
have been tendered pursuant to the procedure for book-entry transfer as set
forth in Section 3, any notice of withdrawal must also specify the name and
number of the account at a Book-Entry Transfer Facility to be credited with the
withdrawn Shares, in which case a notice of withdrawal will be effective if
delivered to the Depositary by any method of delivery described in the first
sentence of this paragraph. Withdrawals of Shares may not be rescinded. Any
Shares properly withdrawn will be deemed not validly tendered for purposes of
the Offer, but may be retendered at any subsequent time prior to the Expiration
Date by following any of the procedures described in Section 3.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in its reasonable
discretion, which determination will be final and binding. None of the Parent,
the Purchaser, the Company, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
Any Shares properly withdrawn will thereafter be deemed not to have been
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered at any time prior to the Expiration Date by following the procedures
described in Section 3.
-11-
<PAGE>
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The receipt of cash for Shares pursuant to the Offer or the Proposed Merger
will be a taxable transaction for federal income tax purposes under the Internal
Revenue Code of 1986, as amended (the "Code"), and will likely be a taxable
transaction under applicable state, local, foreign and other tax laws as well.
Generally, for federal income tax purposes, a tendering stockholder will
recognize gain or loss equal to the difference, if any, between the amount of
cash received by the stockholder pursuant to the Offer and the aggregate tax
basis in the Shares tendered by the stockholder and purchased pursuant to the
Offer. Gain or loss will be computed separately for each block of Shares (i.e.,
Shares acquired at the same time and price) tendered and purchased pursuant to
the Offer.
If Shares are held by a stockholder as a capital asset, gain or loss
recognized by the stockholder will be capital gain or loss. Under the recently
enacted Taxpayer Relief Act of 1997, net capital gain (i.e., generally, capital
gain in excess of capital loss) recognized by an individual upon the sale or
exchange of a capital asset that has been held for more than 12 months will
generally be subject to tax at a rate not to exceed 20%, and net capital gain
recognized from the sale or exchange of a capital asset that has been held for
12 months or less will continue to be subject to tax at ordinary tax rates. In
addition, net capital gain recognized by a corporate taxpayer will continue to
be subject to tax at the ordinary income tax rates applicable to corporations.
Ordinary income recognized by an individual (including dividends and short-term
capital gains recognized by individuals) is subject to Federal income tax at a
maximum rate of 39.6%. The maximum federal tax rate applicable to all capital
gains and ordinary income recognized by a corporation is 35%.
Withholding. Unless a stockholder complies with certain reporting and/or
certification procedures, or is an exempt recipient under applicable provisions
of the Code (and regulations promulgated thereunder), such stockholder may be
subject to "backup" withholding of 31% with respect to any payments received in
the Offer. Stockholders should contact their brokers to ensure compliance with
such procedures. Foreign Stockholders should consult with their tax advisors
regarding U.S. withholding taxes in general. Those tendering their Shares in the
Offer may prevent backup withholding by completing the Substitute Form W-9
included in the Letter of Transmittal.
THE FOREGOING DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY
NOT BE APPLICABLE WITH RESPECT TO SHARES RECEIVED PURSUANT TO THE EXERCISE OF
EMPLOYEE STOCK OPTIONS OR OTHERWISE AS COMPENSATION OR WITH RESPECT TO HOLDERS
OF SHARES WHO ARE SUBJECT TO SPECIAL TAX TREATMENT UNDER THE CODE, SUCH AS
NON-U.S. PERSONS, LIFE INSURANCE COMPANIES, TAX-EXEMPT ORGANIZATIONS AND
FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A HOLDER OF SHARES IN LIGHT OF
INDIVIDUAL CIRCUMSTANCES. STOCKHOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS
TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING ANY STATE, LOCAL
OR OTHER TAX CONSEQUENCES) OF THE OFFER AND THE PROPOSED MERGER.
-12-
<PAGE>
6. PRICE RANGE OF SHARES; DIVIDENDS.
According to the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1997 (the "Company Form 10-K") and other publicly-available
information, the Shares are listed and principally traded on the NYSE. The
following table sets forth, for the quarters indicated, the high and low sales
prices per Share on the NYSE as reported in the Company Form 10-K for periods in
1996 and 1997 and as reported by published financial sources with respect to
periods in 1998, which were changed to correspond with the change in the
Company's fiscal year from October 31 to December 31:
HIGH LOW
QUARTER ENDED:
January 31, 1996............................... $22 3/4 $16 1/2
April 30, 1996................................. 25 18 3/8
July 31, 1996.................................. 20 5/8 16
October 31, 1996............................... 20 1/8 16 1/8
QUARTER ENDED:
January 31, 1997............................... $22 1/2 $16 1/8
April 30, 1997................................. 19 1/4 16 7/8
July 31, 1997.................................. 20 3/4 16 3/4
October 31, 1997............................... 21 5/8 15 11/16
TWO MONTHS ENDED
December 31, 1997.............................. $18 9/16 $16 1/16
QUARTER ENDED:
March 31, 1998................................. $17 3/8 $14 9/16
June 30, 1998.................................. 18 5/8 13 3/4
September 30, 1998............................. 15 3/8 5 9/16
December 31, 1998 (through December 16)........ 11 5/16 7 1/2
On December 14, 1998, the last trading day prior to the announcement of
the Parent's intention to commence the Offer, the reported closing sales price
of the Shares on the NYSE Composite Tape was $8 3/8 per Share. On December 16,
1998 the last trading day prior to the commencement date of the Offer, the
reported closing sales price of the Shares on the NYSE Composite Tape was $11
5/16 per Share. In addition, on October 2, 1998, the last trading day prior to
the Parent's filing of its Schedule 13D disclosing its 9.9% interest in the
Company, the reported closing sales price of the Shares on the NYSE Composite
Tape was $7 3/8 per Share. STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET
QUOTATION FOR THE SHARES.
According to the Company Form 10-K, the Company has not declared or
paid dividends on the Shares since it became a publicly-owned Company.
The Purchaser believes, based upon publicly available information, that
as of the date of this Offer to Purchase, the Rights are listed on the NYSE and
all Rights are attached to the associated Shares and are not traded separately.
As a result, the sale prices per Share set forth above are also the high and low
sale prices per Share and associated Right
-13-
<PAGE>
during all such periods. Upon the occurrence of the Distribution Date, the
Rights are to detach, and may trade separately, from the Shares. See Section 11.
The Purchaser believes that, as a result of the commencement of the Offer on
December 17, 1998, the Distribution Date may occur as early as January 4, 1999,
unless prior to such date the Company Board redeems the Rights or takes action
to delay the Distribution Date. The Distribution Date may also occur sooner. See
Section 14. IF THE DISTRIBUTION DATE OCCURS AND THE RIGHTS BEGIN TO TRADE
SEPARATELY FROM THE SHARES, STOCKHOLDERS ARE ALSO URGED TO OBTAIN A CURRENT
MARKET QUOTATION FOR THE RIGHTS.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES, STOCK EXCHANGE
LISTING AND EXCHANGE ACT REGISTRATION.
Stock Exchange Listings. The purchase of Shares pursuant to the Offer
will reduce the number of Shares that might otherwise trade publicly and will
reduce the number of holders of Shares. This could adversely affect the
liquidity and market value of the remaining Shares held by the public. Depending
upon the number of Shares purchased pursuant to the Offer, the Shares may no
longer meet the requirements for continued listing on the NYSE and may therefore
be delisted from the NYSE. According to the NYSE's published guidelines, the
NYSE would consider delisting the Shares if, among other things: (i) the number
of record holders of 100 or more Shares should fall below 1,200; (ii) the number
of publicly held Shares (exclusive of holdings of the Parent and the Purchaser
and any other subsidiaries or affiliates of the Parent and of officers or
directors of the Company or their immediate families or other concentrated
holdings of 10% or more ("Excluded Holdings")) should fall below 600,000; or
(iii) the aggregate market value of such publicly held Shares (exclusive of
Excluded Holdings) should fall below $5,000,000.
According to the Company Form 10-K, there are approximately 7,434
holders of record of Shares. If as a result of the purchase of Shares pursuant
to the Offer or otherwise, the Shares no longer meet the requirements of the
NYSE for continued listing and the listing of the Shares is discontinued, the
market and prices for the Shares could be adversely affected.
If the NYSE were to delist the Shares, it is possible that the Shares
would continue to trade on other securities exchanges or in the over-the-counter
market and that price quotations would be reported by such exchanges or through
the National Association of Securities Dealers Automated Quotation System
("NASDAQ") or other sources. However, the extent of the public market for the
Shares and the availability of such quotations would depend upon such factors as
the number of stockholders and/or the aggregate market value of the
publicly-traded Shares remaining at such time, the interest in maintaining a
market in the Shares on the part of securities firms, the possible termination
of registration under the Exchange Act as described below and other factors.
Exchange Act Registration. The Shares are currently registered under
the Exchange Act. The purchase of Shares pursuant to the Offer may result in the
Shares becoming eligible for deregistration under the Exchange Act. Registration
of the Shares may be terminated upon application of the Company to the SEC if
the Shares are not listed on a national securities exchange and there are fewer
than 300 record holders. The termination of the registration of the Shares under
the Exchange Act would substantially reduce the information required to be
furnished by the Company to holders of the Shares and would make certain
provisions of the Exchange Act, such as the short-swing profit recovery
provisions of Section 16(b), the requirement of furnishing a proxy statement in
connection with stockholders' meetings, and the requirements of Rule 13e-3 under
the Exchange Act with respect to "going private" transactions, no longer
applicable to the Shares. Furthermore, "affiliates" of the Company and persons
holding "restricted securities" of the Company could be deprived of the ability
to dispose of the securities pursuant to Rule 144 under the Securities Act of
1933, as amended. If registration of the Shares under the Exchange Act were
terminated, the Shares would no longer be "margin securities" or eligible for
NASDAQ reporting. The Purchaser intends to seek to cause the Company to
terminate the registration of the Shares as soon after the consummation of the
Offer or the Proposed Merger as the requirements for termination of registration
are met.
-14-
<PAGE>
Based upon publicly available information, the Purchaser believes that,
as of the date of this Offer to Purchase, the Rights are registered under the
Exchange Act and are listed on the NYSE, but are attached to the Shares and are
not separately transferable. The Purchaser believes that, as a result of the
commencement of the Offer on December 17, 1998, the Distribution Date may occur
as early as January 4, 1998, unless prior to such date the Company Board redeems
the Rights or takes action to delay the Distribution Date. The Distribution Date
may also occur sooner. See Section 14. The Rights Agreement provides that,
following the Distribution Date, certificates evidencing the Rights will be sent
to all holders of Rights and Rights will become transferable apart from the
Shares. See Section 14. If the Distribution Date occurs and the Rights separate
from the Shares, the foregoing discussion with respect to the effect of the
Offer on the market for the Shares, stock exchange listings and Exchange Act
registration would apply to the Rights in a similar manner.
Margin Regulations. The Shares are currently "margin securities" under
the rules of the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"), which has the effect, among other things, of allowing brokers
to extend credit on the collateral of the Shares for the purpose of buying,
carrying or trading in securities ("purpose loans"). Depending upon factors
similar to those described above with respect to stock exchange listing and
market quotations, the Shares might no longer constitute "margin securities" for
the purposes of the Federal Reserve Board's margin regulations and, therefore,
could no longer be used as collateral for purpose loans made by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as otherwise noted below, the information concerning the Company
contained in this Offer to Purchase, including financial information, has been
taken from or based upon publicly available documents and records on file with
the SEC and other public sources. Neither the Parent nor the Purchaser assumes
any responsibility for the accuracy or completeness of the information
concerning the Company contained in such documents and records or for any
failure by the Company to disclose events which may have occurred or may affect
the significance or accuracy of any such information but which are unknown to
the Parent or the Purchaser.
The Company is a Delaware corporation whose principal executive offices
are located at 2121 San Jacinto Street, Suite 2500, L.B. 31, Dallas, Texas 75201
The Company was incorporated in the State of Delaware in 1995, when the
Company's predecessor INDRESCO, Inc. established a holding company structure.
Unless the context indicates otherwise, the term the "Company" also refers to
its consolidated subsidiaries.
The Company is a major manufacturer of technologically advanced
industrial products that support high-growth markets around the world. Products
include forged flanges; undercarriage parts for track-mounted vehicles; modular
cells for refining non-ferrous metals; premium refractories for lining heat-
containing industrial vessels such as steel furnaces; raw materials used to make
refractory products, processing and recycling equipment.
Financial Information on the Company. Set forth below is a summary of
certain consolidated financial information with respect to the Company for its
fiscal years ended October 31, 1997, 1996 and 1995, excerpted from financial
statements presented in the Company Form 10-K, the Company's Transition Report
on Form 10-Q for the transition period ended December 31, 1997 (the "Company
Transition Report") the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998 (the "Company Form 10-Q") and other documents filed by
the Company with the SEC. According to the Company Form 10-Q, on July 30, 1998,
the Company Board voted to change the Company's annual fiscal accounting period
from October 31 to December 31. More comprehensive financial information is
included in such reports (including management's discussion and analysis of
results of operations and financial condition) and other documents filed by the
Company with the SEC, and the financial information summary set forth below is
qualified in its entirety by reference to such reports and other documents,
which are incorporated herein by reference, as well as all the financial
information and related notes contained therein. The Company Form 10-K, the
Company Transition Report, the Company Form 10-Q and such other documents may be
examined and copies may be obtained from the offices of the SEC or the NYSE in
the manner set forth below.
-15-
<PAGE>
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Two Months
Year Ended Ended December
--------------------------------------------------------------------
SEPTEMBER JULY 31,
1997 1996 1995 1997 1996 30, 1998 1997
---- ---- ---- ---- ---- -------- ----
INCOME STATEMENT DATA: (unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues................................ $602.4 $647.9 $597.1 $68.0 $66.3 $415.1 $360.4
Costs and expenses...................... 609.1 592.5 554.6 71.6 86.4 486.5 387.3
Pretax income (loss) from continuing
operations ............................. (6.7) 55.4 42.5 (3.6) (20.1) (71.4) (26.9)
Pretax income (loss) from discontinued __ __ __
operations.............................. 2.4 .9 107.1 11.3
Net income (loss)....................... (4.4) 45.4 38.7 (1.2) (14.5) 35.7 (15.6)
INCOME PER COMMON SHARE
INFORMATION:
Income (loss from continuing $(.20) $2.01 $1.70 $(0.12) $(0.67) $(2.00) $(1.07)
operations.....................
Income (loss) from
discontinued operations........ __ __ __ 0.07 0.03 3.62 0.38
Net income (loss).............. (.20) 2.01 1.70 (0.05) (0.64) 1.62 (0.69)
</TABLE>
<TABLE>
<CAPTION>
At October 31, At September 30,
----------------------- ----------------
1997 1996 1998
---- ---- -----
(unaudited)
BALANCE SHEET DATA:
<S> <C> <C> <C>
Total current assets............ $356.1 $375.5 $513.1
Total current liabilities....... 245.4 207.2 305.2
Total assets.................... 807.0 752.6 1,309.0
Total liabilities............... 522.9 452.7 1,003.5
Total stockholders' equity...... 284.1 299.9 305.5
</TABLE>
The Company is subject to the information and reporting requirements of
the Exchange Act and is required to file reports and other information with the
SEC relating to its business, financial condition and other matters.
Information, as of particular dates, concerning the Company's directors and
officers, their remuneration, stock options granted to them, the principal
holders of the Shares, any material interests of such persons in transactions
with the Company and other matters is required to be disclosed in proxy
statements distributed to the Company's stockholders and filed with the SEC.
These reports, proxy statements and other information should be available for
inspection at the public reference facilities of the SEC located in Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and also should be
available for inspection and copying at prescribed rates at the following
regional offices of the SEC: Seven World Trade Center, New York, New York 10048;
and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of this
material may also be obtained by mail, upon payment of the SEC's customary fees,
from the SEC's principal office at 450 Fifth Street, N.W., Washington, D.C.
20549. The SEC also maintains an Internet web site at http://www.sec.gov that
contains reports, proxy statements and other information. The Shares are listed
on the NYSE, and reports, proxy statements and other information concerning the
Company should also be available for inspection at the offices of the NYSE, 20
Broad Street, New York, New York 10005.
-16-
<PAGE>
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND THE PARENT.
The Purchaser. The Purchaser is a Delaware corporation which was
organized in 1998. The principal offices of the Purchaser are located at 110
East 59th Street, New York, NY 10022. The Purchaser is a wholly owned subsidiary
of the Parent. Until immediately prior to the time that the Purchaser will
purchase Shares pursuant to the Offer, it is not expected that the Purchaser
will have any significant assets or liabilities or engage in activities other
than the ownership of Shares and those activities incident to the transactions
contemplated by the Offer.
The Parent. The Parent is a Delaware corporation with its principal
executive offices located at 110 East 59th Street, New York, NY 10022.
The Parent is a holding company that has been structured to invest in
and/or acquire a diverse group of businesses on a decentralized basis, with a
corporate staff providing strategic direction and support where appropriate. The
Parent's primary businesses currently are Handy & Harman ("H&H"), a diversified
manufacturing company whose strategic business segments encompass, among others,
specialty wire and tubing, and precious metals plating, stamping and
fabrication, and Wheeling-Pittsburgh Steel Corporation ("WPSC"), a vertically
integrated manufacturer of value-added and flat rolled steel products. Parent's
other businesses include Unimast Incorporated ("Unimast"), a leading
manufacturer of steel framing and other products for commercial and residential
construction and WHX Entertainment Corp., a co-owner of a racetrack and video
lottery facility located in Wheeling, West Virginia.
Financial Information. Set forth below is a summary of certain
consolidated financial information with respect to the Parent and its
subsidiaries for its fiscal years ended December 31, 1997 and 1996, and for the
nine months ended September 30, 1998, excerpted from financial statements
presented in the Parent's Annual Report on Form 10-K for the year ended December
31, 1997 and Quarterly Report on Form 10-Q for the period ended September 30,
1998 filed with the SEC. More comprehensive financial information is included in
such reports (including management's discussion and analysis of results of
operations and financial position) and other documents filed by the Parent with
the SEC including additional operating information of the Parent contained in
the Parent's Current Report on Form 8-K dated June 22, 1998, and the financial
information summary set forth below is qualified in its entirety by reference to
such reports, which are incorporated herein by reference, and all the financial
information and related notes contained therein.
-17-
<PAGE>
WHX CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Year Ended Nine Months Ended
---------------------------------------- ------------------------
1997 1996 1995 1998 1997
---- ---- ---- ---- ----
INCOME STATEMENT DATA: (unaudited)
<S> <C> <C> <C> <C> <C>
Net sales..................................... $642,096 $1,232,695 $1,364,614 $1,228,096 $386,717
Income (loss) before taxes.................... (267,341) (3,460) 100,075 60,832 (251,105)
Net (loss) income............................. (199,762) 658 78,018 39,177 (163,218)
Dividend requirement for Preferred Stock...... 20,657 22,313 22,875 15,456 15,505
Net income (loss) available to Common Stock... (220,419) (21,655) 55,143 23,721 (178,723)
INCOME PER COMMON SHARE
INFORMATION:
Income (loss) per share of Common Stock...
Primary................................. $(10.01) $(.83) $2.13 $1.29 $(7.84)
Fully Diluted........................... (10.01) (.83) 1.72 1.09 (7.84)
</TABLE>
<TABLE>
<CAPTION>
1997 1996 (unaudited)
---- ----
BALANCE SHEET DATA:
<S> <C> <C> <C>
Total current assets.................................... $938,883 $ 737,731 $1,137,840
Property, plant and equipment at cost, less
accumulated depreciation and amortization............. 738,660 755,412 827,670
Total assets............................................ 2,070,403 1,718,779 2,564,863
Total liabilities....................................... 1,603,719 998,571 2,107,360
Total stockholders' equity.............................. 461,876 $714,437 453,799
</TABLE>
On April 13, 1998, the Parent completed the acquisition of H&H. Set
forth below is a summary of certain consolidated financial information with
respect to H&H for its fiscal years ended December 31, 1997, 1996 and 1995,
excerpted or derived from the audited financial information of H&H contained in
H&H's Form 10-K for the fiscal year ended December 31, 1997 and other documents
filed by H&H with the SEC. More comprehensive financial information is included
in such reports (including management's discussion and analysis and results of
operations and financial condition) and other documents filed by H&H with the
SEC, and the financial information summary set forth below is qualified in its
entirety by reference to such reports and other documents, which are
incorporated herein by reference, as well as all the financial information and
related notes contained therein. Such reports and other documents may be
examined and copies may be obtained from the offices of SEC or the NYSE in the
manner set forth below.
-18-
<PAGE>
HANDY & HARMAN
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------
1997 1996 1995
---- ---- ----
INCOME STATEMENT DATA:
<S> <C> <C> <C>
Sales......................................... $451,110 $407,107 $427,188
Income from continuing operations, net of
income taxes and before extraordinary item,
excluding net LIFO gains..................... 17,193 14,513 7,509
Net LIFO gains................................ 3,717 19,260 --
Loss from extraordinary item.................. -- (2,889) --
Income (loss) from discontinued operations ... -- (14,515) 11,131
Net income.................................... 20,910 16,369 18,640
INCOME PER COMMON SHARE
INFORMATION:
Continuing operations net of income taxes
and before extraordinary item, excluding net
LIFO gains................................ $1.44 $1.05 $.53
Net LIFO gains............................ .31 1.40 --
Loss from extraordinary item.............. -- (.21) --
Income (loss) from discontinued operations -- (1.05) .79
Net income................................ $1.75 $1.19 $1.32
</TABLE>
<TABLE>
<CAPTION>
At December 31,
--------------------------
1997 1996
---- ----
BALANCE SHEET DATA:
<S> <C> <C>
Total current assets.................................... $158,248 $138,674
Total current liabilities............................... 67,007 76,838
Total assets............................................ 392,797 316,464
Total liabilities....................................... 280,389 220,858
Total shareholders' equity.............................. $112,408 $ 95,606
</TABLE>
Set forth on Schedule III attached hereto is certain unaudited pro forma
condensed financial data giving effect to the H&H acquisition.
The Parent is and, prior to the H&H acquisition, H&H was, subject to the
information and reporting requirements of the Exchange Act and The Parent is
and, prior to the H&H acquisition, H&H was required to file reports and other
information with the SEC relating to their respective businesses, financial
condition and other matters. Information, as of particular dates, concerning the
Parent's and H&H's directors and officers, their remuneration, stock options
granted to them, the principal holders of the Parent's and H&H's respective
securities, any material interests of such persons in transactions with the
Parent and H&H and other matters is required to be disclosed in proxy statements
distributed to the Parent's and H&H's respective stockholders and filed with the
SEC. These reports, proxy statements and other information should be available
for inspection and copies may be obtained in the same manner as set forth for
the Company in Section 8. The Parent's Common Stock is listed on the NYSE, and
reports, proxy statements and other information concerning the Parent should
also be available for inspection at the offices of the NYSE, 20 Broad Street,
New York, New York 10005.
The name, citizenship, business address, principal occupation or employment
and five-year employment history for each of the directors and executive
officers of the Parent and the Purchaser are set forth in Schedule I hereto.
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Ownership of Shares. The Parent (through a wholly owned subsidiary)
currently beneficially owns an aggregate of 2,173,800 Shares, representing
approximately 9.9% of the 22,039,455 Shares stated by the Company in the Company
Form 10-Q to be outstanding at November 13, 1998, all of which Shares were
acquired in the transactions described in Schedule II to this Offer to Purchase.
The aggregate purchase price of such Shares was approximately $14.9 million,
which was obtained from the Parent's working capital funds.
Except as set forth in Schedule II of this Offer to Purchase, neither the
Parent nor the Purchaser, nor, to the knowledge of the Parent or the Purchaser,
any of the persons listed in Schedule I hereto, or any associate or
majority-owned subsidiary of such persons, beneficially owns any equity security
of the Company, and neither the Parent nor the Purchaser, nor, to the knowledge
of the Parent or the Purchaser, any of the other persons referred to above, or
any of the respective directors, executive officers or subsidiaries of any of
the foregoing, has effected any transaction in any equity security of the
Company during the past 60 days.
Except as set forth in this Offer to Purchase, neither the Parent nor the
Purchaser, nor, to the knowledge of the Parent or the Purchaser, any of the
persons listed in Schedule I hereto has any contract, arrangement, understanding
or relationship with any other person with respect to any securities of the
Company, including, without limitation, any contract, arrangement, understanding
or relationship concerning the transfer or the voting of any securities of the
Company, joint ventures, loan or option arrangements, puts or calls, guaranties
of loans, guaranties against loss or the giving or withholding of proxies.
Except as set forth in this Offer to Purchase, neither the Parent nor the
Purchaser, nor, to the knowledge of the Parent or the Purchaser, any of the
persons listed in Schedule I hereto has had any transactions with the Company,
or any of its executive officers, directors or affiliates that would require
reporting under the rules of the SEC.
Civil Proceedings. On March 31, 1997, the Parent, through a wholly owned
subsidiary, commenced a tender offer for shares of Dynamics Corporation of
America, Inc. ("DCA"), a NYSE-listed company. On April 14, 1997, DCA commenced
an action against the Parent in the United States District Court for the
District of Connecticut, alleging, among other things, that the Parent's tender
offer violated Section 14(d) of the Exchange Act and the rules thereunder (the
"DCA Action"). The Parent denied all allegations and contested the action. On
April 29, 1997, Judge Gerard L. Goettel of the United States District Court,
District of Connecticut, issued an order granting a motion for a preliminary
injunction filed by DCA against the Parent and the Purchaser. The District Court
found that the disclosure contained in the Parent's tender offer materials to
DCA stockholders was improper because (i) it stated that under certain
circumstances the Parent "may be required" to comply with Section 203(b) of the
DGCL and a provision in DCA's charter, instead of disclosing that the Parent
"will be required" to do so; and (ii) it failed to disclose the Parent's future
plans in the event that it was prohibited from merging with DCA for five years.
The Court (i) directed the Parent and the Purchaser to make "further and
complete disclosures" pertaining to those subjects described above, and (ii)
specified that such tender offer be extended for an additional twenty days. This
order was promptly complied with in all respects by the Parent and the
Purchaser. The DCA Action was later discontinued by stipulation between the
parties.
On April 8, 1997, the SEC entered an Order Directing Private Investigation
concerning possible violations of Sections 14(d) and 14(e) of the Exchange Act
and Rules 14d-10(a)(1) and 14e-1(b) thereunder in connection with the Parent's
tender offer for DCA. On June 25, 1998, the SEC instituted an administrative
proceeding against the Parent alleging that it had violated certain SEC rules in
connection with the tender offer for DCA. Specifically, the Order Instituting
Proceedings (the "Order") alleges that, in its initial form, the DCA tender
offer violated Rule 14d-10(a)(1) under the Exchange Act ( the "All Holders
Rule") based on the Parent's inclusion of a "record holder condition" in the DCA
tender offer. No shareholder had tendered any shares at the time the condition
was removed. The Order further alleges that the Parent violated Rules 14d-4(c)
and 14d-6(d) under the Exchange Act upon expiration of the DCA tender offer, by
allegedly waiving material conditions to the offer without prior notice to
shareholders and purchasing the approximately 10.6% of DCA's outstanding shares
tendered pursuant to the offer. The SEC does not claim that the DCA tender offer
was intended to or in fact defrauded any investor.
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The Order institutes proceedings to determine whether the SEC should enter
an order requiring the Parent (a) to cease and desist from committing or causing
any future violation of the rules alleged to have been violated and (b) to pay
approximately $1.3 million in disgorgement of profits. The Parent has filed an
Answer denying any violations and seeking dismissal of the proceeding. Although
there can be no assurance that an adverse decision will not be rendered, the
Parent intends to vigorously defend against the SEC's charges. The Parent
believes that even if an adverse decision were to be rendered, there would be no
material financial impact on the Parent.
Except as set forth above, during the past five years neither the Parent nor
the Purchaser, nor, to the knowledge of the Parent or the Purchaser, any of the
persons listed in Schedule I hereto has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting activities subject to, federal or state
securities laws, or finding any violation of such laws.
10. SOURCE AND AMOUNT OF FUNDS.
According to the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, as of November 13, 1998 there were 22,039,455 Shares
issued and outstanding. According to the Company's Annual Report on Form 10-K
for the year ended October 31,1997, as of October 31, 1997 1,425,489 Shares were
issuable under then outstanding options. The Parent currently beneficially owns
2,173,800 Shares. Based on the foregoing and assuming that no options were
granted after October 31, 1997, and that no options were exercised or expired
from November 1, 1997 through the date hereof, there would be 23,464,944 Shares
outstanding on a fully diluted basis and the number of Shares subject to the
Offer and the Proposed Merger would be 21,291,144. The actual number of Shares
subject to the Offer and the Proposed Merger will depend upon the facts as they
exist on the date of the purchase or the Effective Date.
The Purchaser estimates that the total amount of funds required to purchase
all of the Shares pursuant to the Offer and to pay all related costs and
expenses will be approximately $224 million. The Purchaser plans to obtain such
funds through capital contributions or advances made by the Parent. The Parent
has on hand all of the funds necessary to fund this Offer and the Proposed
Merger, but reserves the right to finance this Offer and the Proposed Merger
through public or private financing sources.
THE OFFER IS NOT CONDITIONED UPON THE PURCHASER OBTAINING FINANCING.
11. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY.
In the ordinary course of the Parent's long-term strategic review process,
the Parent and its subsidiaries routinely analyze investments and potential
combinations with various companies. In September and October 1998, the Parent
purchased approximately 9.9% of the Company's outstanding Shares; and filed a
Schedule 13D relating to such purchases on October 5, 1998. In its Schedule 13D
filing, the Reporting Persons (as defined in the Schedule 13D) stated, among
other things, that they were "currently assessing whether to propose an
acquisition of 100% of the Issuer's Common Stock, or whether to propose that the
Issuer's Board of Directors consider evaluating various strategic alternatives
aimed at enhancing shareholder value."
After the Parent filed the Schedule 13D, Mr. Ronald LaBow, Chairman of the
Board of the Parent had conversations with representatives of an investment
banking firm that has previously worked with the Company. Such representatives
informed Mr. LaBow that the Company would discuss proposals to enhance
shareholder value with the Parent but that it would not discuss a sale of the
Company. On October 5, 1998, the Company issued a press release in response to
the Schedule 13D announcing that it had amended its stockholder rights agreement
to reduce the triggering threshold from 15% to 10%. In such release, Mr. Rawles
Fulgham, the Company's Chairman of the Board stated that "the directors of
Global, all of whom are independent and with long experience in business
matters, are committed to enhancing shareholder value. Having only recently
disposed of our Industrial Tool business, restructured our operations and
completed our acquisition of A. P. Green, we have made significant strides in
repositioning Global for the company's long-term growth.
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While the corporate transformation process, our search for a Chief Executive
Officer to lead our company into the future and current global and market
conditions have clearly taken their toll on our stock price, the fact that our
stock price is at such low, and grossly undervalued levels only strengthens our
resolve to prevent anyone from seeking to take advantage of the situation and
reap for itself the significant values inherent in our strategic plan. WHX
Corporation itself noted in its filing that it believes Global's shares are an
attractive investment opportunity due to the recent sharp decline in stock
market prices."
On December 7, 1998, Mr. LaBow contacted Mr. Rawles Fulgham and Mr. Graham
Adelman, then Senior Vice President and General Counsel of the Company (and
currently President of the Company) to discuss the possible combination of the
Parent and the Company. Mr. LaBow was informed that the Company had no interest
in entertaining discussions concerning the possible combination of the Parent
and the Company.
In December 1998, the Parent had additional conversations with
representatives of an investment banking firm that has previously worked with
the Company. Such discussions have not resulted in any substantive conversations
about a possible combination of the Parent and the Company.
On December 15, 1998, the Parent issued the following press release:
"WHX CORP. PLANS TO COMMENCE $10.50 PER SHARE
TENDER OFFER FOR GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
New York--December 15, 1998--WHX Corporation (NYSE: WHX) announced that it
intends to commence a cash tender offer for any and all outstanding shares of
Global Industrial Technologies, Inc. (NYSE: GIX ) at $10.50 per share. This
price represents a premium of approximately 25% over yesterday's closing trade
price.
Global Industrial Technologies, Inc. currently has outstanding approximately 22
million shares. WHX Corporation currently beneficially owns 9.9% of the
outstanding shares of Global, which it acquired in open market purchases during
September and October 1998.
The tender offer will not be subject to any minimum number of shares being
tendered, nor will it be subject to financing. The tender offer will, however,
be subject to various other terms and conditions, including the inapplicability
or removal of the restrictions on stock purchases arising from Global's
stockholder rights plan, the supermajority voting provision set forth in Article
VI of Global's Charter and Section 203 of the Delaware General Corporation Law.
Further details will be contained in a filing which WHX will be making with the
SEC by December 21, 1998.
WHX stated, "We are announcing this tender offer after our requests for
discussions concerning a merger were ignored by Global's management. No
substantive discussion has been forthcoming, so we believe it is now appropriate
to make an offer directly to Global's stockholders. Notwithstanding Global's
inability to date to communicate with its largest shareholder, we are hopeful
that we can still have an amicable and productive dialogue on the merits of our
offer."
WHX is a holding company that has been structured to invest in and/or acquire a
diverse group of businesses on a decentralized basis. WHX's primary businesses
currently are Handy & Harman ("H&H"), a diversified manufacturing company whose
strategic business segments encompass, among others, specialty wire and tubing,
and precious metals plating, stamping and fabrication, and Wheeling-Pittsburgh
Steel Corporation ("WPSC"), a vertically integrated manufacturer of value-added
and flat rolled steel products. WHX's other businesses include Unimast
Incorporated ("Unimast"), a leading manufacturer of steel framing and other
products for commercial and residential construction and WHX Entertainment
Corp., a co-owner of a racetrack and video lottery facility located in Wheeling,
West Virginia."
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On December 15, 1998, the Company issued the following press release:
"Global Industrial Technologies, Inc. Urges
Stockholders to Wait for Board Recommendation
DALLAS, Dec. 15 /PRNewswire/ -- Global Industrial Technologies, Inc. (NYSE: GIX
- - news) stated today that in response to an announcement by WHX Corporation
(NYSE: WHX - news) that it intends to commence an unsolicited offer for any and
all of the common stock of Global for $10.50 in cash per share, the Board of
Directors of Global will carefully review the offer and will make their
recommendation to stockholders no later than ten (10) business days after the
tender offer has commenced. The Board of Directors urges stockholders not to
take any action with respect to such offer until they have received the Board of
Directors' formal recommendation.
Global is a major manufacturer of technologically advanced industrial products
that support high-growth markets around the world. Products include forged
flanges; undercarriage parts for track-mounted vehicles; modular cells for
refining non-ferrous metals; premium refractories for lining heat- containing
industrial vessels such as steel furnaces; raw materials used to make refractory
products, processing and recycling equipment. Statements the Company may
publish, including those in this announcement, that are not strictly historical
are "forward-looking" statements under the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Although the Company believes the
expectations reflected in such forward-looking statements are based on
reasonable assumptions, it can give no assurance that its expectations will be
realized. Forward-looking statements involve known and unknown risks, which may
cause the Company's actual results, and corporate developments to differ
materially from those expected. Factors that could cause results and
developments to differ materially from the Company's expectations include,
without limitation, changes in manufacturing and shipment schedules, delays in
completing plant construction and acquisitions, currency exchange rates, new
product and technology developments, competition within each business segment,
cyclicity of the markets for the products of a major segment, litigation,
significant cost variances, the effects of acquisitions and divestitures, and
other risks described from time to time in the Company's SEC reports including
quarterly reports on Form 10-Q, annual reports on Form 10-K and reports on Form
8-K."
Depending on the Company's response to this Offer, the Parent may take
such further actions as it deems appropriate to achieve its objective of
acquiring control of the Company, including conducting a proxy contest at the
Company Annual Meeting. See also "Introduction" for a description of various
actions which the Parent and the Purchaser may take if the Company does not act
in a timely manner to assist in satisfying the Business Combination Condition,
the Supermajority Condition or the Rights Condition, or in the event that the
Company takes any of the actions described in the Defensive Action Condition.
Other than as set forth above, there have not been any contacts,
negotiations or transactions between the Parent or the Purchaser, or their
respective subsidiaries, or, to the knowledge of the Parent or the Purchaser,
any of the persons listed in Schedule I hereto, on the one hand, and the Company
or its executive officers, directors or affiliates, on the other hand,
concerning a merger, consolidation or acquisition, tender offer or other
acquisition of securities, election of directors, or a sale or other transfer of
a material amount of assets.
12. PURPOSE OF THE OFFER; PROPOSED MERGER; PLANS FOR THE COMPANY.
Purpose of the Offer and the Proposed Merger. The purpose of the Offer
is for the Parent, through the Purchaser, to acquire control of, and the entire
equity interest in, the Company. The Parent and the Purchaser currently intend,
as soon as practicable following completion of the Offer, to seek to consummate
the Proposed Merger. The Parent and the Purchaser intend that in the Proposed
Merger, each then outstanding Share (other than Shares owned by the Parent, the
Purchaser or any of their wholly owned subsidiaries and Shares held in the
treasury of the Company) would be converted into the right to receive $10.50 in
cash, without interest. Pursuant to the DGCL, consummation of the Proposed
Merger would require the adoption of a resolution by the Company Board approving
the Proposed Merger and the affirmative vote of the holders of a majority of all
of the Shares entitled to vote. Consummation of the Proposed Merger would also
require approval by the Parent, as the sole stockholder of the Purchaser.
Accordingly, the timing and final terms of the Proposed Merger will depend on a
variety of factors and legal requirements, the actions of the Company Board, the
number of
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Shares acquired by the Purchaser pursuant to the Offer and whether the Rights
Condition. the Supermajority Condition and the Business Combination Condition
have been satisfied.
Stockholders do not have statutory appraisal rights as a result of the
Offer. However, if the Proposed Merger is consummated, stockholders of the
Company at the time of the Proposed Merger will have certain rights to dissent
and demand appraisal of their Shares under the DGCL. Dissenting stockholders who
comply with the requisite statutory procedures in accordance with Section 262 of
the DGCL will be entitled to a judicial determination and payment of the "fair
value" of their Shares as of the close of business on the day prior to the date
of stockholder authorization of the Proposed Merger, together with interest
thereon, at such rate as the court finds equitable, from the date the Proposed
Merger is consummated until the day of payment. Under the DGCL, in fixing the
fair value of the Shares, a court would consider the nature of the transaction
giving rise to the stockholders' right to receive payment for Shares and its
effects on the Company and its stockholders, the concepts and methods then
customary in the relevant securities and financial markets for determining fair
value of shares of a corporation engaging in a similar transaction under
comparable circumstances, and all other relevant factors. The value so
determined could be more or less than the purchase price offered pursuant to the
Offer or the Proposed Merger.
The SEC has adopted Rule 13e-3 under the Exchange Act, which is
applicable to certain "going private" transactions and which may under certain
circumstances be applicable to the Proposed Merger following the purchase of
Shares pursuant to the Offer. Rule 13e-3 should not be applicable to the
Proposed Merger if the Proposed Merger is consummated within one year after the
expiration or termination of the Offer and the price paid in the Proposed Merger
is not less than the per Share price paid pursuant to the Offer. However, in the
event that the Purchaser is deemed to have acquired control of the Company
pursuant to the Offer and if the Proposed Merger is consummated more than one
year after completion of the Offer or an alternative acquisition transaction is
effected whereby stockholders of the Company receive consideration less than
that paid pursuant to the Offer, in either case at a time when the Shares are
still registered under the Exchange Act, the Purchaser may be required to comply
with Rule 13e-3 under the Exchange Act. If applicable, Rule 13e-3 would require,
among other things, that certain financial information concerning the Company
and certain information relating to the fairness of the Proposed Merger or such
alternative transaction and the consideration offered to the stockholders other
than the Purchaser, the Parent and their affiliates in the Proposed Merger or
such alternative transaction, be filed with the SEC and disclosed to
stockholders prior to consummation of the Proposed Merger or such alternative
transaction. If such registration were terminated, Rule 13e-3 would be
inapplicable to any such transaction.
The Purchaser and the Parent reserve the right to purchase, following
consummation, termination, or withdrawal of the Offer, additional Shares or
Rights in the open market, in privately negotiated transactions, in another
tender offer or exchange offer or otherwise. In addition, in the event that the
Purchaser decides not to propose the Proposed Merger, to propose a merger on
terms other than those described above, or to withdraw any merger previously
proposed, the Purchaser and the Parent will evaluate their other alternatives.
These alternatives could include purchasing Shares or Rights in the open market,
in privately negotiated transactions, in another tender offer or exchange offer
or otherwise, or taking no further action to acquire Shares or Rights. Any
additional purchases of Shares or Rights could be at a price greater or less
than the price to be paid for Shares and Rights in the Offer and could be for
cash or other consideration. Alternatively, the Purchaser and the Parent may
sell or otherwise dispose of any or all Shares or Rights acquired pursuant to
the Offer or otherwise. Such transactions may be effected on terms and at prices
then determined by the Purchaser and the Parent, which may vary from the price
proposed to be paid for Shares and Rights in the Offer.
In connection with the Offer and Proposed Merger, the Parent and the
Purchaser intend, if necessary, to nominate, and solicit proxies for the
election of, the Parent Nominees to the class of directors of the Board at the
Company Annual Meeting and to solicit proxies for certain other proposals. The
Parent expects that, if elected, and subject to their fiduciary duties under
applicable law, the Parent Nominees would be proponents of Board action to
approve the Proposed Merger; amend the Rights Agreement or redeem the Rights, or
otherwise act to ensure that the Rights Condition is satisfied; satisfy the
Business Combination Condition; satisfy the Supermajority Condition; and take
any other actions necessary to permit the Offer and the Proposed Merger to be
consummated. Such solicitation will be made pursuant to separate proxy materials
complying with the requirements of Section 14(a) of the Exchange Act. The
Company has disclosed in its Proxy
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Statement filed with the SEC on February 4, 1998 that the Company Annual Meeting
will be held on Wednesday, March 17, 1999. In accordance with the applicable
provisions of the Company Charter, any nominations for director by the Parent
must be submitted to the Company on or before January 25, 1999.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY,
CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO THE COMPANY ANNUAL MEETING OR
ANY SPECIAL MEETING OF THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION WHICH
THE PARENT AND/OR THE PURCHASER MAY MAKE WILL BE MADE ONLY PURSUANT TO SEPARATE
PROXY SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF
SECTION 14(A) OF THE EXCHANGE ACT, AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
Plans For the Company. The Purchaser and the Parent have no present
intention to make any significant changes in the business strategies of the
Company, and they have not identified any specific assets, corporate structure,
or other business strategy which warrants change. However, the Purchaser has
made a preliminary review of, and will continue to review, on the basis of
available information, various possible business strategies that it might
consider if it acquires control of the Company. If the Purchaser acquires
control of the Company, the Purchaser intends to conduct a detailed review of
the Company and its assets, corporate structure, dividend policy,
capitalization, operations, properties, policies, management and personnel and
consider what, if any, changes or sale of assets would be desirable in light of
the circumstances which then exist.
Except as noted in this Offer to Purchase, neither the Parent nor the
Purchaser has any present plans or proposals that would result in an
extraordinary corporate transaction, such as a reorganization, liquidation,
relocation of operations, or sale or transfer of assets, involving the Company
or any of its subsidiaries, or any material changes in the Company's corporate
structure, business or composition of its Board of Directors, management or
personnel.
13. DIVIDENDS AND DISTRIBUTIONS.
If, on or after the date of this Offer to Purchase, the Company should
(i) split, combine or otherwise change the Shares or its capitalization, (ii)
issue or sell any additional securities of the Company or otherwise cause an
increase in the number of outstanding securities of the Company or (iii) acquire
currently outstanding Shares or otherwise cause a reduction in the number of
outstanding Shares, then, without prejudice to the Purchaser's rights under
Sections 1 and 14, the Purchaser, in its sole discretion, may make such
adjustments as it deems appropriate in the purchase price and other terms of the
Offer, including, without limitation, the amount and type of securities offered
to be purchased.
If, on or after the date of this Offer to Purchase, the Company should
declare or pay any dividend on the Shares, or make any distribution (including,
without limitation, the issuance of additional Shares pursuant to a stock
dividend or stock split, the issuance of other securities or the issuance of
rights for the purchase of any securities) with respect to the Shares that is
payable or distributable to stockholders of record on a date prior to the
transfer to the name of the Purchaser or its nominee or transferee on the
Company's stock transfer records of the Shares purchased pursuant to the Offer,
then, without prejudice to the Purchaser's rights under Sections 1 and 14, (i)
the purchase price per Share payable by the Purchaser pursuant to the Offer will
be reduced by the amount of any such cash dividend or cash distribution, and
(ii) any such non-cash dividend, distribution or right to be received by the
tendering stockholders will be received and held by such tendering stockholders
for the account of the Purchaser and will be required to be promptly remitted
and transferred by each such tendering stockholder to the Depositary for the
account of the Purchaser, accompanied by appropriate documentation of transfer.
Pending such remittance and subject to applicable law, the Purchaser will be
entitled to all rights and privileges as owner of any such non-cash dividend,
distribution or right and may withhold the entire purchase price or deduct from
the purchase price the amount of value thereof, as determined by the Purchaser
in its sole discretion.
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14. CONDITIONS OF THE OFFER.
Notwithstanding any other provisions of the Offer, and in addition to
(and not in limitation of) the Purchaser's right to extend and amend the Offer
at any time in its reasonable discretion, the Purchaser shall not be required to
accept for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) under the Exchange Act (relating to the Purchaser's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for, and may delay the acceptance for payment of
or, subject to the restriction referred to above, the payment for, any tendered
Shares, and may terminate the Offer as to any Shares not then paid for, if in
the reasonable judgment of the Purchaser, at any time on or after December 17,
1998 and prior to the Expiration Date, (i) the Rights Condition, the
Supermajority Condition, the Business Combination Condition, the Defensive
Action Condition or the HSR Condition has not been satisfied, or (ii) any of the
following events shall occur or shall be determined by the Purchaser to have
occurred:
(a) there shall have been threatened, instituted or pending
any action, proceeding, claim or application by any government or
governmental regulatory or administrative authority or agency,
domestic, foreign or supranational, or by any other person, domestic or
foreign, before any court or governmental, regulatory or administrative
agency, authority or tribunal, domestic, foreign or supranational, that
(i) challenges or seeks to make illegal, to delay or otherwise directly
or indirectly to restrain or prohibit, or which is likely to impose, in
the reasonable judgment of the Purchaser, voting, procedural, price or
other requirements in connection with the acquisition of Shares by the
Purchaser or any of its affiliates, the making of the Offer, the
acceptance for payment of or payment for Shares by the Purchaser or any
of its affiliates or the consummation of the Proposed Merger or any
other business combination involving the Company or the performance of
any of the contracts or other arrangements entered into by the
Purchaser or any of its affiliates in connection with the acquisition
of the Company or seek to obtain any material damages as a result
thereof or otherwise directly or indirectly relating to the Offer or
the Proposed Merger or such other business combination, (ii) seeks to
restrain, prohibit or limit the exercise of full rights of ownership or
operation by the Purchaser or any of its affiliates of all or any
portion of the business or assets of the Company or any of its
subsidiaries or the Purchaser or any of its affiliates or to compel the
Purchaser or any of its affiliates to dispose of or to hold separately
all or any portion of the business or assets of the Company or any of
its subsidiaries or the Purchaser or any of its affiliates, (iii)
imposes or seeks to impose limitations on the ability of the Purchaser
or any of its affiliates effectively to acquire or hold or to exercise
full rights of ownership of Shares, including without limitation the
right to vote the Shares acquired or owned by the Parent or the
Purchaser or any of its affiliates on all matters properly presented to
the stockholders of the Company, or the right to vote any shares of
capital stock of any subsidiary directly or indirectly owned by the
Company, (iv) seeks to require divestiture by the Parent or the
Purchaser or any of its affiliates of any Shares, (v) might result, in
the reasonable judgment of the Purchaser, in a diminution of the
benefits expected to be derived by the Purchaser or any of its
affiliates as a result of the Offer or the Proposed Merger or any other
business combination involving the Company, or in a diminution of the
value of the Shares or the Company or any of its subsidiaries to the
Purchaser or any of its affiliates, or (vi) challenges or adversely
affects the Proposed Merger or any other business combination involving
the Company; or
(b) other than the waiting period under the HSR Act and the
necessity for the approvals and other actions by any domestic (federal
and state) or foreign or supranational governmental, administrative or
regulatory agency described in Section 15, there shall have been
proposed, sought, promulgated, enacted, entered, enforced or deemed
applicable to the Offer, the Proposed Merger or any other business
combination involving the Company, by any government or governmental,
regulatory or administrative agency or authority or by any court or
tribunal, in each case whether domestic, foreign or supranational, any
statute, rule, regulation, judgment, decree, decision, order or
injunction that, in the reasonable judgment of the Purchaser, might,
directly or indirectly, result in any of the consequences referred to
in clauses (i) through (vi) of paragraph (a) above; or
(c) any change (or any condition, event or development
involving a prospective change) shall have occurred or been threatened
in the business, properties, assets, liabilities, stockholders' equity,
financial condition,
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capitalization, licenses, franchises, permits, operations, results of
operations or prospects of the Company or any of its subsidiaries or
affiliates (or the Purchaser shall have become aware thereof) or in
general economic or financial market conditions in the United States or
abroad that, in the reasonable judgment of the Purchaser, is or may be
materially adverse to the Company or any of its subsidiaries or
affiliates, or the Purchaser shall have become aware of any facts that,
in the reasonable judgment of the Purchaser, have or may have material
adverse significance with respect to either the value of the Company or
any of its subsidiaries or affiliates, or the value of the Shares to
the Parent or the Purchaser or any of its affiliates; or
(d) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the United States over-the-counter market,
(ii) the declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States, (iii) any material
adverse change (or any existing or threatened condition, event or
development involving a prospective material adverse change) in United
States or any other currency exchange rates or a suspension of, or a
limitation on, the markets therefor, (iv) any other material adverse
change in the market price of the Shares or in the United States
securities or financial markets generally, including without
limitation, a decline of at least 10% in either the Dow Jones Average
of Industrial Stocks or the Standard & Poor's 500 Stock Index from
December 17, 1998 through the date of termination or expiration of the
Offer, (v) the commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the
United States, (vi) any limitation (whether or not mandatory) by any
governmental authority or any other event that, in the reasonable
judgment of the Purchaser, may have material adverse significance with
respect to the extension of credit by banks or other lending
institutions or the financing of the Offer or the Proposed Merger or
any other business combination involving the Company or (vii) in the
case of any of the situations described in clauses (i) through (vi)
above existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof; or
(e) a tender or exchange offer for some or all of the Shares
shall have been publicly proposed to be made or shall have been made by
another person (including the Company or any of its subsidiaries or
affiliates), or it shall have been publicly disclosed or the Purchaser
shall have otherwise learned that (i) any person, entity (including the
Company or any of its subsidiaries or affiliates) or "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) shall have
acquired or proposed to acquire beneficial ownership of more than 10%
of any class or series of capital stock of the Company (including the
Shares) through the acquisition of stock, the formation of a group or
otherwise, or shall have been granted any option, right or warrant,
conditional or otherwise, to acquire beneficial ownership of more than
10% of any class or series of capital stock of the Company (including
the Shares), other than acquisitions for bona fide arbitrage purposes
only and other than as disclosed in a Schedule 13D or 13G on file with
the SEC prior to December 17, 1998, (ii) any such person, entity or
group which, prior to such date, had filed such a Schedule with the
SEC, shall have acquired or proposed to acquire, through the
acquisition of stock, the formation of a group or otherwise, beneficial
ownership of additional shares of any class or series of capital stock
of the Company (including the Shares) constituting 2% or more of any
such class or series, or shall have been granted any option, right or
warrant, conditional or otherwise, to acquire beneficial ownership of
shares of any class or series of capital stock of the Company
(including the Shares) constituting 2% or more of any such class or
series, (iii) any person, entity or group shall have entered into a
definitive agreement or an agreement in principle or made a proposal
with respect to a tender or exchange offer for some or all the Shares
or a merger, consolidation or other business combination with or
involving the Company or any of its subsidiaries or affiliates or (iv)
any person, entity or group shall have filed a Notification and Report
Form under the HSR Act or made a public announcement reflecting an
intent to acquire the Company or any of its subsidiaries or any assets
or securities of the Company or any of its subsidiaries; or
(f) the Company or any of its subsidiaries shall have,
directly or indirectly, (i) split, combined or otherwise changed, or
authorized or proposed the split, combination or other change of, the
Shares or its capitalization, (ii) acquired or otherwise caused a
reduction in the number of, or authorized or proposed the acquisition
or other reduction in the number of, any outstanding Shares (other than
a redemption of the Rights
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in accordance with the terms of the Rights Agreement as publicly
disclosed to be in effect on December 17, 1998) or other securities of
the Company or any subsidiary thereof, (iii) issued, distributed or
sold, or authorized, proposed or announced the issuance, distribution
or sale of, (A) any additional Shares, shares of any other class or
series of capital stock, other voting securities, or any securities
convertible into or exchangeable or exercisable for any of the
foregoing, or options, rights or warrants, conditional or otherwise, to
acquire any of the foregoing in accordance with their terms, or (B) any
other securities or rights in respect of, in lieu of or in substitution
or exchange for any shares of its capital stock, (iv) permitted the
issuance or sale of any shares of any class of capital stock or other
debt or equity securities of any subsidiary of the Company or any
securities convertible into or exchangeable or exercisable for any of
the foregoing, (v) declared, paid or proposed to declare or pay any
dividend or other distribution, whether payable in cash, securities or
other property, on, or in respect of, any Shares (other than a
redemption of the Rights in accordance with the Rights Agreement as
publicly disclosed to be in effect on December 17, 1998), (vi) altered
or proposed to alter any material term of any outstanding security of
the Company or any of its subsidiaries (including the Rights), (vii)
issued, distributed or sold, or authorized or proposed the issuance,
distribution or sale of, any debt securities or securities convertible
into or exchangeable or exercisable for debt securities or any rights,
warrants or options entitling the holder thereof to purchase or
otherwise acquire any debt securities, or otherwise incurred,
authorized or proposed the incurrence of, any debt other than in the
ordinary course of business and consistent with past practice or any
debt containing burdensome covenants, (viii) authorized, recommended,
proposed, effected or announced its intention to engage in any merger
(other than the Proposed Merger), consolidation, liquidation,
dissolution, business combination, acquisition (including by way of
exchange) of assets or securities, disposition (including by way of
exchange) of assets or securities, joint venture, any release or
relinquishment of any material contract or other rights of the Company
or any of its affiliates or any comparable event not in the ordinary
course of business, (ix) authorized, recommended, proposed or announced
its intent to enter into, or entered into any agreement or arrangement
with any person, entity or group that in the reasonable judgment of the
Purchaser, has or may have material adverse significance with respect
to the value of the Company or any of its affiliates, or the value of
the Shares to the Purchaser or any of its affiliates, (x) amended or
proposed, adopted or authorized any amendment (other than any amendment
which provides that the Rights or that the 70% Voting Requirement are
inapplicable to the Offer and the Proposed Merger) to the Charter or
the By-Laws or similar organizational documents of the Company or any
of its subsidiaries or the Rights Agreement or the Purchaser shall have
learned that the Company or any of its subsidiaries shall have proposed
or adopted any such amendment which shall not have been previously
disclosed, (xi) entered into or amended any employment, severance or
similar agreement, arrangement or plan with or for the benefit of any
employee of the Company or any of its subsidiaries (other than in the
ordinary course of business) or so as to provide for increased or
accelerated benefits to employees as a result of or in connection with
the making of the Offer, the acceptance for payment of or payment for
Shares by the Purchaser or the consummation by the Purchaser or any of
its affiliates of the Proposed Merger or any other business combination
involving the Company, (xii) except as may be required by law, taken
any action to terminate or amend any employee benefit plan (as defined
in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended) of the Company or any of its affiliates, or the Purchaser
shall have become aware of any such action which shall not have been
previously disclosed, or (xiii) agreed in writing or otherwise to take
any of the foregoing actions; or
(g) the Purchaser shall become aware (i) that any material
contractual right of the Company or any of its subsidiaries shall be
impaired or otherwise adversely affected or that any material amount of
indebtedness of the Company or any of its subsidiaries shall become
accelerated or otherwise become due or become subject to acceleration
prior to its stated due date, in each case with or without notice or
the lapse of time or both, as a result of or in connection with the
Offer or the consummation by the Purchaser or any of its affiliates of
the Proposed Merger or any other business combination involving the
Company, (ii) of any covenant, term or condition in any of the
instruments or agreements of the Company or any of its subsidiaries
that, in the reasonable judgment of the Purchaser, is or may be
(whether considered alone or in the aggregate with other such
covenants, terms or conditions) materially adverse to either the value
of the Company or any of its subsidiaries (including without limitation
any event of default that may occur as a result of or in connection
with the Offer, the
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consummation by the Purchaser or any of its affiliates of the Proposed
Merger or any other business combination involving the Company) or the
value of the Shares to the Purchaser or any of its affiliates or the
consummation by the Purchaser or any of its affiliates of the Proposed
Merger or any other business combination involving the Company, or
(iii) that any report, document, instrument, financial statement or
schedule of the Company filed with the SEC contained, when filed, an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading; or
(h) any approval, permit, authorization or consent of any
domestic or foreign or supranational governmental, administrative or
regulatory agency (federal, state, local, provincial or otherwise)
(including those described or referred to in Section 15) which is
required or believed to be appropriate shall not have been obtained on
terms satisfactory to the Purchaser in its reasonable discretion; or
(i) the Purchaser or any of its affiliates shall have entered
into a definitive agreement or announced an agreement in principle with
respect to the Proposed Merger or any other business combination with
the Company or any of its affiliates or the purchase of any material
portion of the securities or assets of the Company or any of its
subsidiaries, or the Purchaser or any of its affiliates and the Company
shall have agreed that the Purchaser shall amend or terminate the Offer
or postpone payment for the Shares pursuant thereto.
The foregoing conditions (in addition to the Rights Condition, the
Supermajority Condition, the Business Combination Condition, the Defensive
Action Condition and the HSR Condition described in the Introduction) are for
the sole benefit of the Purchaser and may be waived by the Purchaser in whole or
in part at any time and from time to time in its reasonable discretion. Any
determination by the Purchaser concerning the events described above shall be
final and binding upon all parties including tendering stockholders. The failure
by the Purchaser at any time to exercise any of the foregoing rights shall not
be deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
A public announcement will be made of a material change in, or waiver
of, such conditions, to the extent required by Rules 14d-4(c) and 14d-6(d) under
the Exchange Act, and the Offer will be extended in connection with any such
change or waiver to the extent required by such rules.
15. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS.
General. Except as set forth below, based upon an examination of
publicly available filings made by the Company with the SEC and other publicly
available information concerning the Company, neither the Purchaser nor the
Parent is aware of any licenses or other regulatory permits that appear to be
material to the business of the Company and its subsidiaries, taken as a whole,
that might be adversely affected by the Purchaser's acquisition of Shares (and
the indirect acquisition of the stock of the Company's subsidiaries) as
contemplated herein, or of any filings, approvals or other actions by or with
any domestic (federal or state), foreign or supranational governmental authority
or administrative or regulatory agency that would be required prior to the
acquisition of Shares (or the indirect acquisition of the stock of the Company's
subsidiaries) by the Purchaser pursuant to the Offer as contemplated herein.
Should any such approval or other action be required, it is the Purchaser's
present intention to seek such approval or action. However, the Purchaser does
not presently intend to delay the purchase of Shares tendered pursuant to the
Offer pending the receipt of any such approval or the taking of any such action
(subject to the Purchaser's right to delay or decline to purchase Shares if any
of the conditions in Section 14 shall have occurred). There can be no assurance
that any such approval or other action, if needed, would be obtained without
substantial conditions or that adverse consequences might not result to the
business of the Company, the Parent or the Purchaser or that certain parts of
the businesses of the Company, the Parent or the Purchaser might not have to be
disposed of or held separate or other substantial conditions complied with in
order to obtain such approval or other action or in the event that such approval
was not obtained or such other action was not taken, any of which could cause
the Purchaser to elect to terminate the Offer without the purchase of the Shares
thereunder. The Purchaser's obligation under
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the Offer to accept for payment and pay for Shares is subject to certain
conditions, including conditions relating to the legal matters discussed in this
Section 15. See Section 14.
State Takeover Statutes. The Company is incorporated under the laws of
the State of Delaware. In general, Section 203 of the DGCL prohibits a Delaware
corporation from engaging in a "Business Combination" (defined as any of a
variety of transactions including mergers) with an "Interested Stockholder"
(defined generally as a person owning 15% or more of the outstanding voting
stock of a corporation) for a period of three years following the date such
person became an Interested Stockholder, unless, before such person became an
Interested Stockholder, the corporation's board of directors approved either the
Business Combination or the transaction in which the stockholder became an
Interested Stockholder.
A number of other states have adopted laws and regulations applicable
to attempts to acquire securities of corporations that are incorporated, or have
substantial assets, stockholders, or whose business operations otherwise have
substantial economic effects in such states. The Company, directly or through
subsidiaries, conducts business in a number of states throughout the United
States, some of which may have enacted takeover laws as described above. The
Purchaser does not believe that any such takeover statutes are applicable to the
Offer or the Proposed Merger and has not attempted to comply with any such state
takeover statutes in connection therewith. The Purchaser reserves the right to
challenge the validity or applicability of any state law allegedly applicable to
the Offer or the Proposed Merger and nothing in this Offer to Purchase nor any
action taken in connection herewith is intended as a waiver of that right.
Antitrust. Under the HSR Act and the rules that have been promulgated
thereunder, certain acquisition transactions may not be consummated unless
certain information has been furnished to the Antitrust Division and the FTC and
certain waiting period requirements have been satisfied. The acquisition of
Shares pursuant to the Offer is subject to such requirements. See the
Introduction and Section 14.
The Parent will file on the date hereof with the FTC and the Antitrust
Division a Premerger Notification and Report Form in connection with the
purchase of Shares pursuant to the Offer. Under the provisions of the HSR Act
applicable to the Offer, the purchase of Shares pursuant to the Offer may not be
consummated until the expiration of a 15-calendar day waiting period following
the filing by the Parent and notification to the Company of such filing.
Accordingly, it is expected that the waiting period under the HSR Act applicable
to the Offer will expire at 11:59 p.m., New York City time, on Monday, January
4, 1999, unless, prior to the expiration or termination of the waiting period,
the FTC or the Antitrust Division extends the waiting period by requesting
additional information or documentary material from the Parent. If either the
FTC or the Antitrust Division were to request additional information or
documentary material from the Parent, the waiting period would expire at 11:59
p.m., New York City time, on the tenth calendar day after the date of
substantial compliance by the Parent with such request. Thereafter, the waiting
period could be extended by court order or by consent of the Parent. The waiting
period under the HSR Act may be terminated by the FTC and the Antitrust Division
prior to its expiration. If the acquisition of Shares is delayed pursuant to a
request by the FTC or the Antitrust Division for additional information or
documentary material pursuant to the HSR Act, the Offer may, but need not, be
extended and in any event the purchase of and payment for Shares will be
deferred until ten days after the request is substantially complied with, unless
the waiting period is sooner terminated by the FTC and the Antitrust Division.
Only one extension of such waiting period pursuant to a request for additional
information is authorized by the HSR Act and the rules promulgated thereunder,
except by court order or by consent of the Parent. Any such extension of the
waiting period will not give rise to any withdrawal rights not otherwise
provided for by applicable law. See Section 4. Although the Company is required
to file certain information and documentary material with the Antitrust Division
and the FTC in connection with the Offer, neither the Company's failure to make
such filings nor a request from the Antitrust Division or the FTC for additional
information or documentary material made to the Company will extend the waiting
period.
The FTC and the Antitrust Division frequently scrutinize the legality
under the antitrust laws of transactions such as the proposed acquisition of
Shares by the Purchaser pursuant to the Offer. At any time before or after the
purchase by the Purchaser of Shares pursuant to the Offer, either the FTC or the
Antitrust Division could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking to enjoin the
purchase of Shares
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<PAGE>
pursuant to the Offer or seeking the divestiture of Shares purchased by the
Purchaser or the divestiture of substantial assets of the Parent, its
subsidiaries or the Company. Private parties and state attorneys general may
also bring legal action under federal or state antitrust laws under certain
circumstances.
Based upon an examination of publicly available information relating to
the businesses in which the Company is engaged, the Parent believes that the
acquisition of Shares pursuant to the Offer and the Proposed Merger would not
violate antitrust laws. The Parent believes that retention of all of the
operations of the Company and the Parent should be permitted under the antitrust
laws. Nevertheless, there can be no assurance that a challenge to the Offer on
antitrust grounds will not be made, or, if such challenge is made, what the
result will be.
16. FEES AND EXPENSES.
The Purchaser has retained Innisfree M&A Incorporated to act as the
Information Agent in connection with the Offer. The Information Agent may
contact holders of Shares by mail, telephone, facsimile, telegraph and personal
interviews and may request brokers, dealers and other nominee stockholders to
forward materials relating to the Offer to beneficial owners of Shares. The
Information Agent will receive reasonable and customary compensation for its
services, will be reimbursed for certain reasonable out-of-pocket expenses and
will be indemnified against certain liabilities and expenses in connection
therewith, including certain liabilities under the federal securities laws.
In addition, Harris Trust Company of New York has been retained as the
Depositary. The Depositary has not been retained to make solicitations or
recommendations in its role as Depositary. The Depositary will receive
reasonable and customary compensation for its services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities and expenses in connection therewith, including certain
liabilities under the federal securities laws.
Except as set forth above, the Purchaser will not pay any fees or
commissions to any broker or dealer or any other person for soliciting tenders
of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust
companies will, upon request only, be reimbursed by the Purchaser for customary
mailing and handling expenses incurred by them in forwarding material to their
customers.
17. MISCELLANEOUS.
The Purchaser is not aware of any jurisdiction where the making of the
Offer is prohibited by any administrative or judicial action pursuant to any
valid state statute. If the Purchaser becomes aware of any valid state statute
prohibiting the making of the Offer or the acceptance of the Shares pursuant
thereto, the Purchaser will make a good faith effort to comply with such state
statute. If, after such good faith effort, the Purchaser cannot comply with any
such state statute, the Offer will not be made to (nor will tenders be accepted
from or on behalf of) the holders of Shares in such state. In any jurisdiction
where the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of the
Purchaser by one or more registered brokers or dealers which are licensed under
the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF THE PARENT OR THE PURCHASER NOT CONTAINED IN THIS
OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
The Parent and the Purchaser have filed with the SEC a Tender Offer
Statement on Schedule 14D-1, together with exhibits (the "Schedule 14D-1"),
pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional
information with respect to the Offer. The Schedule 14D-1, and any amendments
thereto, may be inspected at, and copies may be obtained from, the same places
and in the same manner as set forth in Section 8 (except that they will not be
available at the regional offices of the SEC).
GT ACQUISITION CORP.
December 17, 1998
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SCHEDULE I
INFORMATION CONCERNING DIRECTORS AND EXECUTIVE
OFFICERS OF THE PARENT AND THE PURCHASER
Directors and Executive Officers of the Parent. The following table
sets forth the name, business address, present principal occupation, and
employment and material occupations, positions, offices, or employments for the
past five years of certain directors, officers and employees of the Parent.
Unless otherwise indicated, the principal business address of each executive
officer of the Parent is 110 East 59th Street, New York, NY 10022 and each
occupation set forth opposite an individual's name refers to employment with the
Parent. Where no date is given for the commencement of the indicated office or
position, such office or position was assumed prior to December 17, 1993. Each
person listed below is a citizen of the United States.
PRINCIPAL OCCUPATION OR
NAME AND PRINCIPAL EMPLOYMENT; MATERIAL POSITIONS
BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- ------------------------------------ --------------------------------------
Neil D. Arnold...................... Director. Group Finance Director since
Varity Corporation December 1996 and Executive Vice
672 Delaware Avenue President, Corporate Development from
Buffalo, NY 14209 September 1996 through December 1996
of Lucas Varity PLC, Senior Vice
President and Chief Financial Officer
from July 1990 through September 1996
of Varity Corporation. Lucas Varity
PLC designs, manufactures and supplies
advanced technology systems, products
and services in the world's
automotive, diesel engine and
aerospace industries.
James G. Bradley.................... Executive Vice President. Executive
Vice President of Parent and President
and Chief Executive Officer of WPSC
since April 1998. President and Chief
Operating Officer of Koppel Steel
Company from November 1997 to March
1998. Vice President of WHX from
October 1995 to October 1997.
Executive Vice President- Operations
of WPSC from October 1995 to October
1997. Vice President-Operations of
International Mill Service from 1992
to October 1995. Vice President-
Operations/Plant Manager of USS/Kobe
Steel Company from 1990 to 1992.
Paul W. Bucha....................... Director. Chairman of the Board of
Paul W. Bucha and Company, Inc. Wheeling- Pittsburgh Steel Corporation
Foot of Chapel Avenue ("WPSC") since April 1998. President,
Jersey City, NJ 07305 Paul W. Bucha & Company, Inc., an
international marketing consulting
firm from 1979 to April 1998.
President, BLHJ, Inc., an
international consulting firm, from
July 1991 to April 1998. President,
Congressional Medal of Honor Society
of U.S., since September 1995.
Robert A. Davidow................... Director and Vice Chairman of the
11601 Wilshire Boulevard Board. Private investor since January
Suite 1940 1990. Mr. Davidow is also a director
Los Angeles, CA 90025 of Arden Group, Inc., a supermarket
holding company.
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<PAGE>
PRINCIPAL OCCUPATION OR
NAME AND PRINCIPAL EMPLOYMENT; MATERIAL POSITIONS
BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- ----------------------------------- --------------------------------------
William Goldsmith.................. Director. Management and Marketing
Fiber Fuel International, Inc. Consultant since 1984. Chairman of the
221 Executive Circle Board of TMP, Inc. from January 1991
Suite II to 1993. Chairman of Overspin Golf
Savannah, GA 31406 since 1993. Chief Executive Officer of
Overspin Golf from January 1994
through October 1994. Chairman of the
Board and Chief Executive Officer of
Fiber Fuel International, Inc., from
1994 to 1997. Life Trustee to Carnegie
Mellon University since 1980.
Ronald LaBow....................... Chairman of the Board. President,
Stonehill Investment Corp. since
February 1990. Mr. LaBow is also a
director of Regency Equities Corp., a
real estate company.
Robert D. LeBlanc.................. Executive Vice President. Executive
Vice President of Parent since April
1998. President and Chief Executive
Officer of Handy & Harman since April
1998. (Handy & Harman was acquired by
Parent in April 1998). President and
Chief Operating Officer of Handy &
Harman from July 1997 to April 1998.
Executive Vice President of Handy &
Harman from November 1996 to July
1997. Executive Vice President of Elf
Atochem North America, Inc. ("Elf
Atochem") from January 1994 to
November 1996. Group President of Elf
Atochem from February 1990 to January
1994.
Howard Mileaf...................... Vice President -- General Counsel.
Vice President -- General Counsel of
Parent since April 1998; Vice
President -- Special Counsel of Parent
from April 1993 to April 1998. Special
Counsel to Parent, from February 1992
to April 1993. Vice President and
General Counsel, Keene Corporation,
from August 1981 to August 1991.
Trustee/Director of Neuberger & Berman
Equity Mutual Funds, since 1984.
Paul J. Mooney..................... Vice President. Executive Vice
President of WPC and WPSC since
November 1997. National Director of
Cross Border Filing Services with the
Accounting, Auditing and SEC Services
department of Price Waterhouse LLP
from July 1996 to November 1997.
Accounting and Business Advisory
Services Department--Pittsburgh Site
Leader of Price Waterhouse LLP from
1988 until November 1997. Client
Service and Engagement Partner of
Price Waterhouse LLP from 1985 until
November 1997.
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<PAGE>
PRINCIPAL OCCUPATION OR
NAME AND PRINCIPAL EMPLOYMENT; MATERIAL POSITIONS
BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- ----------------------------------- --------------------------------------
Arnold Nance....................... Vice President -- Finance. Vice
President -- Finance since April 1998.
Vice President of Development and
Planning of Handy & Harman since May
1998. Special Assistant to the
Chairman of the Board of Directors
since November 1995. Vice President of
Wheeling- Pittsburgh Radio Corporation
from July 1993 to November 1995. Vice
President and Chief Financial Officer
of SH Holdings, Inc. from May 1991
through July 1993.
Marvin L. Olshan................... Director and, since 1991, Secretary of
Olshan Grundman Frome & Parent. Partner, Olshan Grundman Frome
Rosenzweig LLP & Rosenzweig LLP, since 1956.
505 Park Avenue
New York, NY 10022
Stewart E. Tabin................... Assistant Treasurer. Vice President,
Stonehill Investment Corp.
Neale X. Trangucci................. Assistant Treasurer. Vice President,
Stonehill Investment Corp
Raymond S. Troubh.................. Director. Financial Consultant for
10 Rockefeller Plaza Parent in excess of past five years.
Suite 712 Mr. Troubh is also a director of ARIAD
New York, NY 10021 Pharmaceuticals, Inc., Becton,
Dickinson and Company, a medical
instrumentation and equipment company,
Diamond Offshore Drilling, Inc.,
Foundation Health Systems, Inc.,
General American Investors Company,
Olsten Corporation, a temporary help
company, Petrie Stores Corporation, a
retail chain, Starwood Hotels &
Resorts, Time Warner Inc. and Triarc
Companies, Inc., restaurants and soft
drinks.
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Directors and Officers of the Purchaser. Set forth below are the name
and position with the Purchaser of each director of the Purchaser. The principal
address of the Purchaser and the current business address of each individual
listed below is 110 East 59th Street, New York, NY 10022. Each such person is a
citizen of the United States. Information with respect to Mr. LaBow, who is a
director and executive officer of the Parent, and Messrs. Tabin and Trangucci,
who are officers of the Parent, is set forth above in "Directors and Executive
Officers of the Parent".
PRESENT POSITION
WITH PURCHASER AND PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS HELD DURING
NAME THE PAST FIVE YEARS
- ------------------------------- -------------------------------------------
Ronald LaBow................... Director: President
Stewart E. Tabin............... Director; Vice-President; and Secretary
Neale X. Trangucci............. Treasurer
-34-
<PAGE>
SCHEDULE II
TRANSACTIONS IN THE SECURITIES OF THE COMPANY
The following table sets forth all of the transactions in Shares by the
Parent and the Purchaser. Unless otherwise indicated, all such transactions took
place on the NYSE.
Shares of Common Stock Purchase Price Per Share Date of Purchase
- ---------------------- ------------------------ ----------------------
300,000 $6.083 September 15, 1998
317,500 $6.721 September 16, 1998
403,000 $6.813 September 25, 1998
640,000 $7.000 September 28, 1998
63,300 $7.052 September 29,1998
440,000 $7.119 October 1, 1998
10,000 $7.356 October 2, 1998
-36-
<PAGE>
SCHEDULE III
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL DATA
The following unaudited pro forma consolidated financial data give
effect to the acquisition by the Parent of H&H in a transaction accounted for as
a purchase. The unaudited pro forma consolidated balance sheet is based on the
individual balance sheet of the Parent and the individual balance sheet of H&H,
which is publicly available, and was prepared to reflect the acquisition by the
Parent of H&H as of December 31, 1997. The unaudited pro forma consolidated
statement of operations is based on the individual statement of operations of
the Parent and the individual statement of operations of H&H, which is publicly
available, and combines the results of operations of the Parent and of H&H for
the fiscal year ended December 31, 1997, as if the acquisition occurred on
January 1, 1997. The unaudited pro forma consolidated financial data do not
purport to represent what the Parent's results of operations or financial
position actually would have been if the transactions had been consummated on
the dates indicated, or what such results or financial position will be for any
future period or as of any future date. EBITDA is operating income plus
depreciation, amortization and special charges. The Parent has included EBITDA
because it is commonly used by certain investors and analysts to analyze and
compare companies on the basis of operating performance, leverage and liquidity
and to determine a company's ability to service debt. EBITDA does not represent
cash flows as defined by generally accepted accounting principles and does not
necessarily indicate that cash flows are sufficient to fund all of the Parent's
cash needs. EBITDA should not be considered in isolation or as a substitute for
net income (loss), cash flows from operating activities or other measures of
liquidity determined in accordance with generally accepted accounting
principles. The unaudited pro forma consolidated financial data should be read
in conjunction with the Parent's audited historical financial statements and
notes thereto, the H&H 10-K and other publicly available information regarding
H&H.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FISCAL YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
WHX H&H(1) ADJUSTMENTS PRO FORMA
--- ------ ----------- ---------
(In Thousands, Except Per Share Data)
<S> <C> <C> <C> <C>
Net Sales.............................................. $642,096 $451,110 $ - $1,093,206
Cost of products sold (excluding depreciation)......... 720,722 337,478 6,408(2) 1,064,608
Depreciation and amortization.......................... 49,445 13,509 5,729(3) 68,683
Selling, administrative and general expenses........... 68,190 52,540 - 120,730
Special charge......................................... 92,701 - - 92,701
Operating income (loss)................................ (288,962) 47,583 (12,137) (253,516)
Interest expense on debt............................... 29,047 14,452 41,472(4) 84,971
Other income........................................... 50,668 2,920 (9,280)(5) 44,308
Income (loss) before income taxes and extraordinary items (267,341) 36,051 (62,889) (294,179)
Tax provision (benefit)................................ (93,569) 15,141 (21,444)(6) (99,872)
Income (loss) before extraordinary items............... (173,772) 20,910 41,445 (194,307)
Dividend requirement for preferred stock............... 20,657 - - 20,657
Income (loss) before extraordinary items applicable to common $(194,429) $20,910 $(41,445) $(214,964)
stock..................................................
Income (loss) per share of common stock before extraordinary - -
items - basic and diluted.............................. $(8.83) $(9.76)
Weighted average shares of common stock outstanding -- basic
and diluted............................................ 22,028 - - 22,028
OTHER DATA:
Cash flow from:
Operations........................................... $(12,916) $32,897 $(48,752)(8) $(28,771)
Investing............................................ (79,724) (71,149) - (9) (150,873)
</TABLE>
-37-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Financing.............................................. 58,622 35,913 - 94,535
EBITDA, adjusted for special charge(7)................. $(146,816) $54,684 $ - $(92,132)
Capital expenditures................................... 36,779 18,460 - 55,239
Cash, cash equivalent and short-term investments....... $582,552 $7,259 $(94,858) $(494,953)
Margin borrowings...................................... (276,618) - - (276,618)
Cash, cash equivalent and short-term investments,
net................................................... $305,934 $ 7,259 $(94,858) $218,335
</TABLE>
FOOTNOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS)
- ------------------------------------
(1) Certain H&H line items have been reclassified, based upon publicly
available information, to conform to the Parent's Financial
presentation.
(2) Represents elimination of H&H LIFO liquidation gain.
(3) Represents amortization of goodwill on a straight line basis over 40
years.
(4) Represents interest expense on notes, amortization of related deferred
financing costs and interest on H&H borrowings used to make payments to
cancel various stock options held by employees and directors of H&H, to
make certain severance payments and various other employee-related
commitments and to pay certain expenses incurred in connection with the
acquisition.
(5) Represents reduction in investment earnings related to cash used to
fund a portion of the acquisition.
(6) Represents income tax benefit on the above adjustments.
(7) H&H EBITDA excludes LIFO gains of $6,408, which LIFO gains are included
in cost of sales.
(8) Represents interest expense on notes, interest on H&H borrowings
incurred in connection with the acquisition and reduction in investment
earnings related to cash used to fund a portion of the acquisition.
(9) Non-recurring adjustments to the balance sheet are presented in the
Unaudited Pro Forma Consolidated Balance Sheet.
-38-
<PAGE>
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1997
<TABLE>
<CAPTION>
WHX H&H(1) ADJUSTMENTS PRO FORMA
(In Thousands)
ASSETS
Current assets:
<S> <C> <C> <C> <C> <C>
Cash and cash equivalents............................. $ 1,002 $7,259 $(6,000)(1) $2,261
Short-term investments................................ 581,550 -- (88,858)(2) 492,692
Trade receivables..................................... 44,993 59,084 - 104,077
Inventories........................................... 284,757 77,294 107,000(3) 469,051
Prepaid expenses, deferred charges and
other current assets.............................. 26,581 14,611 8,462(4) 49,654
Total current assets.......................... 938,883 158,248 20,604 1,117,735
Investment in associated companies..................... 80,409 3,870 - 84,279
Property, plant and equipment, net..................... 738,660 94,988 - 833,648
Deferred income taxes.................................. 196,966 -- - 196,966
Prepaid/intangible pensions............................ 76,714 60,659 (69,854)(5) 67,519
Goodwill and other intangibles......................... 4,053 65,058 262,026(6) 331,137
Deferred charges and other assets...................... 34,718 9,974 - 44,692
Total assets.................................. $2,070,403 $392,797 $212,776 $2,675,976
LIABILITIES AND STOCKHOLDERS EQUITY
Current liabilities:
Trade payables........................................ $123,872 $36,999 $ - $160,871
Short-term debt....................................... 366,418 -- 38,884(7) 405,302
Deferred income taxes - current....................... 32,196 -- 44,940(8) 77,136
Other current liabilities............................. 86,559 30,008 - 116,567
Long-term debt due in one year......................... 466 -- - 466
Total current liabilities..................... 609,511 67,007 83,824 760,342
Long-term debt......................................... 350,453 190,880 350,000(9) 891,333
Pension liability...................................... 166,652 -- (133,605)(5) 33,047
Other employee benefit liabilities..................... 427,124 - 8,504(10) 435,628
Other liabilities...................................... 49,979 22,502 23,456(8) 95,937
Total liabilities............................. 1,603,719 280,389 332,179 2,216,287
Redeemable common stock................................ 4,808 - - 4,808
Stockholders' equity:
Preferred stock....................................... 589 - - 589
Common stock.......................................... 193 14,611 (14,611)(11) 193
Treasury stock (at cost).............................. (2,218) (45,586) 45,586(11) (2,218)
</TABLE>
-39-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Unrealized gain on securities......................... 24,237 - (6,995)(12) 17,242
Foreign currency translation adjustment................ - (1,462) 1,462(11) -
Additional paid-in capital............................. 602,657 14,410 (14,410)(11) 602,657
Accumulated earnings (deficit)......................... (163,582) 130,435 (130,435)(11) (163,582)
Total stockholders' equity.................... 461,876 112,408 (119,403) 454,881
=======
Total liabilities and stockholders' equity.... $2,070,403 $392,797 $212,776 $2,675,976
</TABLE>
FOOTNOTES TO UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
(IN THOUSANDS)
- ------------------------------
(1) Represents certain estimated H&H advisory and professional fees related
to the acquisition.
(2) Reflects the Parent cash used to fund a portion of the purchase price
of the acquisition and the use of the H&H Shares, valued as of December
31, 1997, currently owned by the Parent to fund a portion of the
purchase price of the acquisition.
(3) Represents adjustment to reflect inventories at estimated fair value.
(4) Represents adjustment to reduce funded supplemental retirement benefits
of $1,700 and to reflect deferred tax benefits related to cancellation
of stock options, severance payments and other benefits of $10,162.
(5) Represents adjustment of H&H pension asset to fair value and to reflect
the merging of the Parent and H&H defined benefit pension plans, based
upon the historical actuarial assumptions of the separate plans.
(6) Represents the excess of acquisition cost over fair market value of net
assets acquired ($248,026) and deferred transaction fees and expenses
($14,000). Fixed assets have not been stated at fair value, as this
information is not readily available. The following sets forth the
calculation of additional goodwill associated with the acquisition:
Purchase price.............................................$431,864
Historical net assets acquired............................. 112,408)
Fair market value adjustments...............................(93,852)
Transaction fees and expenses...............................(14,000)
H&H acquisition related fees and expenses, net of tax........36,422
Additional goodwill........................................$248,026
(7) Represents debt incurred by H&H to make payments to cancel various
stock options held by employees and directors of H&H, to make certain
severance payments and various other employee-related commitments and
to pay certain expenses incurred in connection with the acquisition.
(8) Represents deferred taxes on fair market value adjustments.
(9) Represents the issuance of the Notes.
(10) Represents adjustment to reclassify historical H&H retiree medical
liabilities from prepaid pension and to reflect liability at fair
value.
(11) Represents adjustment to eliminate common shareholder equity accounts
of H&H.
(12) Reflects the elimination of unrealized gain on H&H Shares held by the
Parent as of December 31, 1997.
-40-
<PAGE>
Manually executed facsimile copies of the Letter of Transmittal,
properly completed and duly signed, will be accepted. The Letter of Transmittal,
certificates for the Shares and any other required documents should be sent by
each shareholder of the Company or his broker, dealer, commercial bank, trust
company or other nominee to the Depositary at one of its addresses set forth
below:
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand/Overnight Deliver:
Wall Street Station Receive Window
P.O. Box 1023 Wall Street Plaza
New York, NY 10268-1023 88 Pine Street, 19th Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636
For Information (call collect):
(212) 701-7624
Any questions or requests for assistance or additional copies of the
Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed
Delivery may be directed to the Information Agent at its address and telephone
number set forth below. You may also contact your broker, dealer, commercial
bank or trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
INNISFREE M&A INCORPORATED
501 Madison Avenue, 20th Floor
New York, New York 10022
Telephone: (212) 750-5833
or
CALL TOLL FREE: (888) 750-5834
[Back Cover]
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
Pursuant to the Offer to Purchase, Dated December 17, 1998
by
GT ACQUISITION CORP.
a wholly owned subsidiary
of
WHX CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JANUARY 15,
1999, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand/Overnight Delivery:
Wall Street Station Receive Window
P.O. Box 1023 Wall Street Plaza
New York, NY 10268-1023 88 Pine Street, 19th Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636 or 7637
For Information Telephone (call collect):
(212) 701-7624
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OR TELEX TRANSMISSION
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST
SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE
SUBSTITUTE FORM W-9 PROVIDED BELOW.
The instructions accompanying this Letter of Transmittal should be read
carefully before this letter of transmittal is completed.
This Letter of Transmittal is to be completed by the stockholders of
Global Industrial Technologies, Inc. either if Certificates (as defined below)
evidencing Shares (as defined below) are to be forwarded herewith, or if
delivery of Shares is to be made by book-entry transfer to the Depositary's
account at the Depository Trust Company or the Philadelphia Depository Trust
Company (each a "Book-Entry Transfer Facility") pursuant to the book-entry
transfer procedure described in "Procedures for Tendering Shares" of the Offer
to Purchase (as defined below). DELIVERY OF
<PAGE>
DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY. Unless the Rights are redeemed, holders of Shares will also be
required to tender one Right for each Share tendered in order to effect a valid
tender of such Shares.
Stockholders whose Certificates are not immediately available or who
cannot deliver their Certificates for Shares and all other required documents to
the Depositary before the Expiration Date (as defined in the Offer to Purchase)
or whose Shares cannot be delivered on a timely basis pursuant to the procedure
for book-entry transfer must tender their Shares according to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. See
Instruction 2.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:________________________
CHECK BOX OF APPLICABLE BOOK-ENTRY TRANSFER FACILITY:
/ / DTC / / PDTC
Account Number: ______________________________________________
Transaction Code Number: _________________________________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING TENDERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Holder(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
IF DELIVERED BY BOOK-ENTRY TRANSFER, CHECK BOX OF BOOK-ENTRY TRANSFER
FACILITY:
/ / DTC / / PDTC
Account Number: _______________________________
Transaction Code Number: _________________________
-2-
<PAGE>
DESCRIPTION OF SHARES TENDERED
Name(s) and Address(es) of Share Certificate(s) Tendered
Registered Holder(s) (Attach additional list if necessary)
(Please fill in, if blank)
Total Number of Number of
Certificate Shares Represented Shares
Number(s)* By Certificate(s)* Tendered**
Total Shares
* Need not be completed by stockholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares being
delivered to the Depositary are being tendered. See Instruction 4.
The names and addresses of the registered holders should be printed, if
not already printed above, exactly as they appear on the Certificates
representing Shares tendered hereby. The Certificates and number of
Shares that the undersigned wishes to tender should be indicated in the
appropriate boxes.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL CAREFULLY.
-3-
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to GT Acquisition Corp., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of WHX Corporation, a
Delaware corporation, the above described shares of common stock, par value $.25
per share (the "Shares") of Global Industrial Technologies, Inc., a Delaware
corporation (the "Company"), including the associated Preferred Stock Purchase
Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of
October 31, 1995, as amended on February 16, 1998, September 18, 1998 and
October 5, 1998, between the Company and The Bank of New York, as Rights Agent,
at a price of $10.50 per Share, net to the seller in cash, without interest
thereon (the "Offer Price"), upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated December 17, 1998 (the "Offer to
Purchase"), and in this Letter of Transmittal (which, as amended from time to
time, together constitute the "Offer"). Unless the Rights are redeemed by the
Company, a tender of the Shares will also constitute a tender of the associated
Rights. Unless the context requires otherwise, all references herein to the
Shares shall include the associated Rights, and all references to the Rights
shall include all benefits that may inure to the holders of the Rights pursuant
to the Rights Agreement.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby (and any and all non-cash dividends, distributions,
rights, other Shares or other securities issued or issuable in respect thereof
or declared, paid or distributed in respect of such Shares on or after December
17, 1998 (collectively, "Distributions")), purchased pursuant to the Offer and
irrevocably appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares and all
Distributions, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to (i) deliver
Certificates for such Shares (individually, a "Certificate") and all
Distributions, or transfer ownership of such Shares and all Distributions on the
account books maintained by the Book-Entry Transfer Facility, together, in
either case, with all accompanying evidence of transfer and authenticity to, or
upon the order of Purchaser, (ii) present such Shares and all Distributions for
transfer on the books of the Company, and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares and all
Distributions, all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and all Distributions, that the undersigned own(s) the Shares
tendered hereby and that, when such Shares are accepted for payment by
Purchaser, Purchaser will acquire good, marketable and unencumbered title
thereto and to all Distributions, free and clear of all liens, restrictions,
charges and encumbrances, and that none of such Shares and Distributions will be
subject to any adverse claim. The undersigned, upon request, shall execute and
deliver all additional documents deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned shall
remit and transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer, and, pending such remittance and transfer
or appropriate assurance thereof, Purchaser shall be entitled to all rights and
privileges as owner of each such Distribution and may withhold the entire
purchase price of the Shares tendered hereby or deduct from such purchase price,
the amount or value of such Distribution as determined by Purchaser in its sole
discretion. The undersigned further represents and warrants that the undersigned
has read and agrees to all terms of the Offer.
No authority herein conferred or agreed to be conferred shall be
affected by, and all such authority shall survive, the death or incapacity of
the undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, executors, personal and legal representatives, administrators,
trustees in bankruptcy, successors and assigns of the undersigned. Except as
stated in the Offer to Purchase, this tender is irrevocable.
-4-
<PAGE>
The undersigned understands that tenders of Shares pursuant to any one
of the procedures described in "Procedures for Tendering Shares" of the Offer to
Purchase and in the Instructions hereto will constitute the undersigned's
acceptance of the terms and conditions of the Offer. Purchaser's acceptance for
payment of Shares tendered pursuant to the Offer will constitute a binding
agreement between the undersigned and Purchaser upon the terms and subject to
the conditions of the Offer. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, Purchaser may not be required
to accept for payment any of the Shares tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price and/or return any
Certificates evidencing Shares not tendered or accepted for payment, in the
name(s) of the registered holder(s) appearing above under "Description of Shares
Tendered." Similarly, unless otherwise indicated in the box entitled "Special
Delivery Instructions," please mail the check for the purchase price and/or
return any Certificates evidencing Shares not tendered or accepted for payment
(and accompanying documents, as appropriate) to the address(es) of the
registered holder(s) appearing above under "Description of Shares Tendered." In
the event that the box entitled "Special Payment Instructions" and/or "Special
Delivery Instructions" are completed, please issue the check for the purchase
price and/or return any Certificates for Shares not purchased or not tendered or
accepted for payment in the name(s) of, and/or mail such check and/or return
such Certificates to, the person(s) so indicated. Unless otherwise indicated
herein in the box entitled "Special Payment Instructions," please credit any
Shares tendered hereby and delivered by book-entry transfer, but which are not
purchased, by crediting the account at the Book-Entry Transfer Facility
designated above. The undersigned recognizes that Purchaser has no obligation,
pursuant to the Special Payment Instructions, to transfer any Shares from the
name of the registered holder(s) thereof if Purchaser does not accept for
payment any of the Shares tendered hereby.
-5-
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7 OF THIS (SEE INSTRUCTIONS 1, 5, 6 AND 7 OF THIS
LETTER OF TRANSMITTAL) LETTER OF TRANSMITTAL)
To be completed ONLY if Certificates To be completed ONLY if Certificates
for Shares not purchased and/or the tendered or not purchased and/or the
not for Shares not tendered or check for the purchase price of Shares
check for the purchase price of purchased are to be sent to someone
Shares purchased are to be issued other than the undersigned, or to the
in the name of someone other than undersigned at an address other than
the undersigned. that shown above.
Issue check and/or Certificates to:
Name: _____________________________
(PLEASE PRINT) Mail check and/or Certificates to:
Address:___________________________ Name:_________________________________
(PLEASE PRINT)
___________________________________ Address:______________________________
(INCLUDE ZIP CODE)
___________________________________
Taxpayer Identification or Social
Security Number ________________________________
(See Substitute Form W-9 on reverse) (INCLUDE ZIP CODE)
-6-
<PAGE>
SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
-----------------------------------
(SIGNATURE(S) OF HOLDER(S)
Dated:______________, 199__
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by Certificates and documents transmitted herewith.
If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, please provide the following information. See
Instruction 5 of this Letter of Transmittal.)
Name(s):____________________________________________________________
(PLEASE PRINT)
Capacity (full title):______________________________________________
Address:____________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_____________________________________
Tax Identification or Social Security Number:_______________________
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
-7-
<PAGE>
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5 OF THIS LETTER OF TRANSMITTAL)
Authorized Signature:__________________________________________
Name:__________________________________________________________
(PLEASE PRINT)
Title:_________________________________________________________
Name of Firm:__________________________________________________
Address:_______________________________________________________
_______________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:________________________________
Dated:_________________, 199__
-8-
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a firm which is a
bank, broker, dealer, credit union, savings association, or other entity that is
a member in good standing of the Securities Transfer Agents Medallion Program
(each, an "Eligible Institution"). No signature guarantee is required on this
Letter of Transmittal (i) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this document, shall include
any participant in the Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of Shares) of Shares tendered herewith,
unless such holder(s) has completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" included
herein, or (ii) if such Shares are tendered for the account of an Eligible
Institution. See Instruction 5.
2. Delivery of Letter of Transmittal and Share Certificates; Guaranteed
Delivery Procedures. This Letter of Transmittal is to be used either if
Certificates evidencing Shares are to be forwarded herewith or if Shares are to
be delivered by book-entry transfer pursuant to the procedure set forth in
"Procedures for Tendering Shares" of the Offer to Purchase. Certificates
evidencing all tendered Shares, or confirmation of a book-entry transfer of such
Shares, if such procedure is available, into the Depositary's account at a
Book-Entry Transfer Facility pursuant to the procedures set forth in "Procedures
for Tendering Shares" of the Offer to Purchase, together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message, as defined below) and any other documents required by this
Letter of Transmittal, must be received by the Depositary at one of its
addresses set forth herein prior to the Expiration Date (as defined in "Terms of
the Offer; Expiration Date" of the Offer to Purchase). If Certificates are
forwarded to the Depositary in multiple deliveries, a properly completed and
duly executed Letter of Transmittal must accompany each such delivery.
Stockholders whose Certificates are not immediately available, who cannot
deliver their Certificates and all other required documents to the Depositary
prior to the Expiration Date or who cannot complete the procedure for delivery
by book-entry transfer on a timely basis may tender their Shares pursuant to the
guaranteed delivery procedure described in "Procedures for Tendering Shares" of
the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made
by or through an Eligible Institution; (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Purchaser herewith, must be received by the Depositary prior to the Expiration
Date; and (iii) in the case of a guarantee of Shares, the Certificates, in
proper form for transfer, or a confirmation of a book-entry transfer of such
Shares, if such procedure is available, into the Depositary's account at a
Book-Entry Transfer Facility, together with a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof) with any
required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message), and any other documents required by this Letter of
Transmittal, must be received by the Depositary within three New York Stock
Exchange trading days after the date of execution of the Notice of Guaranteed
Delivery, all as described in "Procedures for Tendering Shares" of the Offer to
Purchase.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, CERTIFICATES AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE SOLE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and
no fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering stockholders waive any right
to receive any notice of the acceptance of their Shares for payment.
-9-
<PAGE>
3. Inadequate Space. If the space provided herein under "Description of
Shares Tendered" is inadequate, the Certificate numbers, the number of Shares
evidenced by such Certificates and the number of Shares tendered should be
listed on a separate schedule and attached hereto.
4. Partial Tenders. (Not applicable to stockholders who tender by
book-entry transfer.) If fewer than all the Shares evidenced by any Certificate
delivered to the Depositary herewith are to be tendered hereby, fill in the
number of Shares which are to be tendered in the box entitled "Number of Shares
Tendered." In such cases, new Certificate(s) evidencing the remainder of the
Shares that were evidenced by the Certificates delivered to the Depositary
herewith will be sent to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the box entitled "Special Delivery Instructions,"
as soon as practicable after the expiration or termination of the Offer. All
Shares evidenced by Certificates delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the Certificates evidencing such Shares without
alteration, enlargement or any other change whatsoever.
If any Shares tendered hereby are owned of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
Certificates.
If this Letter of Transmittal is signed by the registered holder(s) of
the Shares tendered hereby, no endorsements of Certificates or separate stock
powers are required, unless payment is to be made to, or Certificates evidencing
Shares not tendered or not purchased are to be issued in the name of, a person
other than the registered holder(s), in which case, the Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Certificate(s). Signatures on such
Certificate(s) and stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Certificate(s) tendered
hereby must be endorsed or accompanied by appropriate stock powers, in either
case signed exactly as the name(s) of the registered holder(s) appear(s) on such
Certificate(s). Signatures on such Certificate(s) and stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Certificate(s) or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of such person's authority so to act must be
submitted.
6. Stock Transfer Taxes. Except as otherwise provided in this
Instruction 6, Purchaser will pay all stock transfer taxes with respect to the
sale and transfer of any Shares to it or its order pursuant to the Offer. If,
however, payment of the purchase price of any Shares purchased is to be made to,
or Certificate(s) evidencing Shares not tendered or not purchased are to be
issued in the name of, a person other than the registered holder(s), the amount
of any stock transfer taxes (whether imposed on the registered holder(s), such
other person or otherwise) payable on account of the transfer to such other
person will be deducted from the purchase price of such Shares purchased, unless
evidence satisfactory to Purchaser of the payment of such taxes, or exemption
therefrom, is submitted. Except as provided in this Instruction 6, it will not
be necessary for transfer tax stamps to be affixed to the Certificate(s)
evidencing the Shares tendered hereby.
-10-
<PAGE>
7. Special Payment and Delivery Instructions. If a check for the
purchase price of any Shares tendered hereby is to be issued, or Certificate(s)
evidencing Shares not tendered or not purchased are to be issued, in the name of
a person other than the person(s) signing this Letter of Transmittal or if such
check or any such Certificate is to be sent to someone other than the person(s)
signing this Letter of Transmittal or to the person(s) signing this Letter of
Transmittal but at an address other than that shown in the box entitled
"Description of Shares Tendered," the appropriate boxes on this Letter of
Transmittal must be completed. Shares tendered hereby by book-entry transfer may
request that Shares not purchased be credited to such account maintained at the
Book-Entry Transfer Facility as such stockholder may designate in the box
entitled "Special Payment Instructions" on the reverse hereof. If no such
instructions are given, all such Shares not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility as the account from
which such Shares were delivered.
8. Requests for Assistance or Additional Copies. Requests for
assistance may be directed to the Information Agent at its address and phone
number set forth herein. Additional copies of the Offer to Purchase, this Letter
of Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
obtained from the Information Agent or from brokers, dealers, commercial banks
or trust companies.
9. Substitute Form W-9. Each tendering stockholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN") on
the Substitute Form W-9 which is provided under "Important Tax Information"
below, and to certify, under penalties of perjury, that such number is correct
and that such stockholder is not subject to backup withholding of federal income
tax. If a tendering stockholder has been notified by the Internal Revenue
Service that such stockholder is subject to backup withholding, such stockholder
must cross out item (2) of the Certification box of the Substitute Form W-9,
unless such stockholder has since been notified by the Internal Revenue Service
that such stockholder is no longer subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
stockholder to 31% federal income tax withholding on the payment of the purchase
price of all Shares purchased from such stockholder. If the tendering
stockholder has not been issued a TIN and has applied for one or intends to
apply for one in the near future, such stockholder should write "Applied For" in
the space provided for the TIN in Part I of the Substitute Form W-9, and sign
and date the Substitute Form W-9. If "Applied For" is written in Part I and the
Depositary is not provided with a TIN within 60 days, the Depositary will
withhold 31% on all payments of the purchase price to such stockholder until a
TIN is provided to the Depositary.
10. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary. The stockholder will then be instructed as to
the steps that must be taken in order to replace the Certificate(s). This Letter
of Transmittal and related documents cannot be processed until the procedures
for replacing lost or destroyed Certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED, WITH ANY REQUIRED SIGNATURE GUARANTEES, OR AN
AGENT'S MESSAGE (TOGETHER WITH CERTIFICATES FOR SHARES OR CONFIRMATION OF
BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR, IF APPLICABLE, A
PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE
RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE.
-11-
<PAGE>
IMPORTANT TAX INFORMATION
Under the federal income tax law, a stockholder whose tendered Shares
are accepted for payment is required by law to provide the Depositary (as payer)
with such stockholder's correct TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If the Depositary is not provided with the correct TIN, the stockholder
may be subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such stockholder with respect to Shares
purchased pursuant to the Offer may be subject to backup withholding of 31%.
Certain stockholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such individual must submit a statement, signed under
penalties of perjury, attesting to such individual's exempt status. Forms of
such statements can be obtained from the Depositary. See the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies with respect to a stockholder, the
Depositary is required to withhold 31% of any payments made to such stockholder.
Backup withholding is not an additional tax. Rather, the tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a
stockholder with respect to Shares purchased pursuant to the Offer, the
stockholder is required to notify the Depositary of such stockholder's correct
TIN by completing the form below certifying (a) that the TIN provided on
Substitute Form W-9 is correct (or that such stockholder is awaiting a TIN), and
(b) that (i) such stockholder has not been notified by the Internal Revenue
Service that such stockholder is subject to backup withholding as a result of a
failure to report all interest or dividends or (ii) the Internal Revenue Service
has notified such stockholder that such stockholder is no longer subject to
backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance on
which number to report. If the tendering stockholder has not been issued a TIN
and has applied for a number or intends to apply for a number in the near
future, the stockholder should write "Applied For" in the space provided for the
TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For" is
written in Part I and the Depositary is not provided with a TIN within 60 days,
the Depositary will withhold 31% of all payments of the purchase price to such
stockholder until a TIN is provided to the Depositary.
-12-
<PAGE>
<TABLE>
<CAPTION>
PAYER'S NAME: HARRIS TRUST COMPANY OF NEW YORK, AS DEPOSITARY
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT
AND CERTIFY BY SIGNING AND DATING BELOW.
<S> <C> <C>
FORM W-9 Social Security Number
Department of the Treasury OR
Internal Revenue Service
Employer Identification
Number
(If awaiting TIN write
"Applied For")
</TABLE>
Payer's Request for PART II--For Payees Exempt From Backup Withholding,
Taxpayer Identification see the enclosed Guidelines and complete
Number (TIN) as instructed therein.
CERTIFICATION--Under penalties of perjury, I certify
that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or a Taxpayer
Identification Number has not been issued to me
and either (a) I have mailed or delivered an
application to receive a Taxpayer
Identification Number to the appropriate
Internal Revenue Service ("IRS") or Social
Security administration office or (b) I intend
to mail or deliver an application in the near
future. I understand that if I do not provide a
Taxpayer Identification Number within sixty
(60) days, 31% of all reportable payments made
to me thereafter will be withheld until I
provide a number), and
(2) I am not subject to backup withholding because
(a) I am exempt from backup withholding, (b) I
have not been notified by the IRS that I am
subject to backup withholding as a result of
failure to report all interest or dividends or
(c) the IRS has notified me that I am no longer
subject to backup withholding.
CERTIFICATE INSTRUCTIONS--You must cross out item
(2) above if you have been notified by the IRS that
you are subject to backup withholding because of
under reporting interest or dividends on your tax
return. However, if after being notified by the IRS
that you were subject to backup withholding you
received another notification from the IRS that you
are no longer subject to backup withholding, do not
cross out item (2). (Also see instructions in the
enclosed Guidelines.)
SIGNATURE: _______________________ DATE: , 199__
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
Questions and requests for assistance or additional copies of the Offer
to Purchase, Letter of Transmittal and other tender offer materials may be
directed to the Information Agent set forth below:
The Information Agent for the Offer is:
INNISFREE M&A INCORPORATED
501 Madison Avenue, 20th Floor
New York, New York 10022
(212) 750-5833
or
CALL TOLL FREE: (888) 750-5834
-13-
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
TO
GT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in Section 3 of the Offer to Purchase (as defined below),
this form, or a form substantially equivalent to this form, must be used to
accept the Offer (as defined below) if the certificates representing shares of
common stock, par value $.25 per share of Global Industrial Technologies, Inc.
(the "Shares"), are not immediately available or time will not permit all
required documents to reach the Depositary prior to the Expiration Date (as
defined in the Offer to Purchase) or the procedures for book-entry transfer
cannot be completed on a timely basis. Such form may be delivered by hand or
transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution (as defined in Section 3 of
the Offer to Purchase). See Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Hand/Overnight Delivery:
Wall Street Station Receive Window
P.O. Box 1023 Wall Street Plaza
New York, NY 10268-1023 88 Pine Street, 19th Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636 or 7637
For Information Telephone (call collect):
(212) 701-7624
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on
a Letter of Transmittal is required to be guaranteed by an "Eligible
Institution" under the instructions thereto, such signature guarantee must
appear in the applicable space provided in the signature box on the Letter of
Transmittal.
<PAGE>
LADIES AND GENTLEMEN:
The undersigned hereby tenders to GT Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of WHX Corporation, a Delaware
corporation, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated December 17, 1998 (the "Offer to Purchase"), and the related
Letter of Transmittal (which, as amended from time to time, together constitute
the "Offer"), receipt of each of which is hereby acknowledged, the number of
Shares specified below pursuant to the guaranteed delivery procedures described
in "Procedures for Tendering Shares" of the Offer to Purchase.
-2-
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
Number of Shares:___________________ Name(s) of Record Holder(s):
Share Certificate Numbers (if available): _____________________________
________________________________________ PLEASE TYPE OR PRINT
________________________________________
Address(es)_________________________
____________________________________
/ / Check here if Shares will be delivered Zip Code
by book-entry transfer.
Check box of applicable book-entry Area Code and Telephone Number:
transfer facility: ____________________________________
____________________________________
____________________________________
____________________________________
/ / DTC / / PDTC SIGNATURE(S)
Account Number_______________________ Dated:___________________, 199__
Dated:_________________________, 199__
The undersigned, a participant in the Security Transfer Agents Medallion
Program (each, an "Eligible Institution"), hereby guarantees that either the
certificates representing the Shares tendered hereby in proper form for
transfer, or timely confirmation of a book-entry transfer of such Shares into
the Depositary's account at The Depository Trust Company or the Philadelphia
Depository Trust Company (pursuant to procedures set forth in Section 3 of the
Offer to Purchase), together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees and
any other documents required by the Letter of Transmittal, will be received by
the Depositary at one of its addresses set forth above within three (3) New York
Stock Exchange trading days after the date of execution hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares and associated Rights to the Depositary within the time
period shown herein. Failure to do so could result in financial loss to such
Eligible Institution.
Name of Firm:___________________ _________________________________
AUTHORIZED SIGNATURE
Address:________________________ Name:___________________________
PLEASE TYPE OR PRINT
________________________
Zip Code Title:__________________________
Dated:__________________, 199___
Area Code and
Telephone Number:______________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR ASSOCIATED RIGHTS WITH THIS
NOTICE. SUCH CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
-3-
OFFER TO PURCHASE FOR CASH
ANY AND ALL OF THE OUTSTANDING SHARES
OF
COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
AT
$10.50 NET PER SHARE
BY
GT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JANUARY 15,
1999, UNLESS THE OFFER IS EXTENDED.
DECEMBER 17, 1998
TO BROKERS, DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND OTHER NOMINEES:
WE ARE ASKING YOU TO CONTACT YOUR CLIENTS FOR WHOM YOU HOLD SHARES OF
COMMON STOCK, PAR VALUE $.25 PER SHARE (THE "SHARES"), OF GLOBAL INDUSTRIAL
TECHNOLOGIES, INC., A DELAWARE CORPORATION (THE "COMPANY"). PLEASE BRING TO
THEIR ATTENTION AS PROMPTLY AS POSSIBLE THE OFFER BEING MADE BY GT ACQUISITION
CORP., A DELAWARE CORPORATION ("PURCHASER") AND A WHOLLY OWNED SUBSIDIARY OF WHX
CORPORATION, A DELAWARE CORPORATION ("PARENT"), TO PURCHASE ANY AND ALL OF THE
OUTSTANDING SHARES, INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS
ISSUED PURSUANT TO THE RIGHTS AGREEMENT, DATED AS OF OCTOBER 31, 1995, AS
AMENDED ON FEBRUARY 16, 1998, SEPTEMBER 18, 1998 AND OCTOBER 5, 1998, BETWEEN
THE COMPANY AND THE BANK OF NEW YORK, AS RIGHTS AGENT, AT A PRICE OF $10.50 PER
SHARE, NET TO THE SELLER IN CASH, WITHOUT INTEREST THEREON (THE "OFFER PRICE"),
UPON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN THE OFFER TO PURCHASE,
DATED DECEMBER 17, 1998 (THE "OFFER TO PURCHASE"), AND THE RELATED LETTER OF
TRANSMITTAL (WHICH, AS AMENDED FROM TIME TO TIME, TOGETHER CONSTITUTE THE
"OFFER") ENCLOSED HEREWITH.
FOR YOUR INFORMATION AND FOR FORWARDING TO YOUR CLIENTS FOR WHOM YOU
HOLD SHARES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE, OR WHO HOLD
SHARES REGISTERED IN THEIR OWN NAMES, WE ARE ENCLOSING THE FOLLOWING DOCUMENTS:
1. OFFER TO PURCHASE, DATED DECEMBER 17, 1998;
2. LETTER OF TRANSMITTAL TO BE USED BY HOLDERS OF SHARES IN
ACCEPTING THE OFFER. FACSIMILE COPIES OF THE LETTER OF
TRANSMITTAL MAY BE USED TO ACCEPT THE OFFER;
3. NOTICE OF GUARANTEED DELIVERY TO BE USED TO ACCEPT THE OFFER
IF THE CERTIFICATES EVIDENCING SUCH SHARES ARE NOT IMMEDIATELY
AVAILABLE OR TIME WILL NOT PERMIT ALL REQUIRED DOCUMENTS TO
REACH THE DEPOSITARY
<PAGE>
PRIOR TO THE EXPIRATION DATE OR THE PROCEDURE FOR BOOK-ENTRY
TRANSFER CANNOT BE COMPLETED ON A TIMELY BASIS;
4. A LETTER WHICH MAY BE SENT TO YOUR CLIENTS FOR WHOSE ACCOUNTS
YOU HOLD SHARES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR
NOMINEES, WITH SPACE PROVIDED FOR OBTAINING SUCH CLIENTS'
INSTRUCTIONS WITH REGARD TO THE OFFER;
5. GUIDELINES OF THE INTERNAL REVENUE SERVICE FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9; AND
6. RETURN ENVELOPE ADDRESSED TO THE DEPOSITARY.
WE ARE ASKING YOU TO CONTACT YOUR CLIENTS FOR WHOM YOU HOLD SHARES
REGISTERED IN YOUR NAME (OR IN THE NAME OF YOUR NOMINEE) OR WHO HOLD SHARES
REGISTERED IN THEIR OWN NAMES. PLEASE BRING THE OFFER TO THEIR ATTENTION AS
PROMPTLY AS POSSIBLE. THE PURCHASER WILL NOT PAY ANY FEES OR COMMISSIONS TO ANY
BROKER OR DEALER OR ANY OTHER PERSON (OTHER THAN THE INFORMATION AGENT) FOR
SOLICITING TENDERS OF SHARES PURSUANT TO THE OFFER. YOU WILL BE REIMBURSED BY
THE PURCHASER FOR CUSTOMARY MAILING EXPENSES INCURRED BY YOU IN FORWARDING ANY
OF THE ENCLOSED MATERIALS TO YOUR CLIENTS. THE PURCHASER WILL PAY OR CAUSE TO BE
PAID ANY STOCK TRANSFER TAXES PAYABLE ON THE SALE AND TRANSFER OF SHARES TO IT
OR ITS ORDER, EXCEPT AS OTHERWISE PROVIDED IN INSTRUCTION 6 OF THE LETTER OF
TRANSMITTAL.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS
EXTENDED.
In order to take advantage of the Offer, (1) a duly executed and
properly completed Letter of Transmittal, and, if necessary, any other required
documents should be sent to the Depositary and (2) either certificates
representing the tendered Shares should be delivered to the Depositary, or such
Shares should be tendered by book-entry transfer into the Depositary's account
at one of the book-entry transfer facilities (as defined in the Offer to
Purchase), all in accordance with the Instructions set forth in the Letter of
Transmittal and the Offer to Purchase.
Any inquiries you may have with respect to the Offer should be
addressed to the Information Agent at the address and telephone number as set
forth on the back cover page of the Offer to Purchase.
Additional copies of the above documents may be obtained from the
Information Agent, at the address and telephone number set forth on the back
cover of the Offer to Purchase.
Very truly yours,
GT ACQUISITION CORP.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY OTHER PERSON AS AN AGENT OF PARENT, PURCHASER, THE DEPOSITARY OR
THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY
STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE
OFFER OTHER THAN THE DOCUMENTS ENCLOSED AND THE
STATEMENTS CONTAINED THEREIN.
-2-
OFFER TO PURCHASE FOR CASH
ANY AND ALL OF THE OUTSTANDING SHARES
OF
COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK RIGHTS)
OF
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
AT
$10.50 NET PER SHARE
BY
GT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JANUARY 15,
1999, UNLESS THE OFFER IS EXTENDED.
DECEMBER 17, 1998
TO OUR CLIENTS:
ENCLOSED FOR YOUR CONSIDERATION IS AN OFFER TO PURCHASE, DATED DECEMBER
17, 1998 (THE "OFFER TO PURCHASE") AND THE RELATED LETTER OF TRANSMITTAL (WHICH,
AS AMENDED FROM TIME TO TIME, TOGETHER CONSTITUTE THE "OFFER") IN CONNECTION
WITH THE OFFER BY GT ACQUISITION CORP., A DELAWARE CORPORATION ("PURCHASER") AND
A WHOLLY OWNED SUBSIDIARY OF WHX CORPORATION, A DELAWARE CORPORATION ("PARENT"),
TO PURCHASE ANY AND ALL OF THE OUTSTANDING SHARES OF COMMON STOCK, PAR VALUE
$.25 PER SHARE (THE "SHARES") OF GLOBAL INDUSTRIAL TECHNOLOGIES, INC., A
DELAWARE CORPORATION (THE "COMPANY"), INCLUDING THE ASSOCIATED PREFERRED STOCK
PURCHASE RIGHTS ISSUED PURSUANT TO THE RIGHTS AGREEMENT, DATED AS OF OCTOBER 31,
1995, AS AMENDED ON FEBRUARY 16, 1998, SEPTEMBER 18, 1998 AND OCTOBER 5, 1998,
BETWEEN THE COMPANY AND THE BANK OF NEW YORK, AS RIGHTS AGENT, AT A PRICE OF
$10.50 PER SHARE, NET TO THE SELLER IN CASH, WITHOUT INTEREST THEREON, UPON THE
TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN THE OFFER.
THE MATERIAL IS BEING SENT TO YOU AS THE BENEFICIAL OWNER OF SHARES
HELD BY US FOR YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME. WE ARE THE HOLDER
OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE
MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE
LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT
BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR ACCOUNT.
WE REQUEST INSTRUCTIONS AS TO WHETHER YOU WISH TO HAVE US TENDER ON
YOUR BEHALF ANY OR ALL OF THE SHARES HELD BY US FOR YOUR ACCOUNT, UPON THE TERMS
AND SUBJECT TO THE CONDITIONS SET FORTH IN THE OFFER.
YOUR ATTENTION IS INVITED TO THE FOLLOWING:
1. THE OFFER PRICE IS $10.50 PER SHARE, NET TO THE SELLER IN CASH
WITHOUT INTEREST THEREON.
<PAGE>
2. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON FRIDAY, JANUARY 15, 1999, UNLESS THE OFFER IS
EXTENDED.
3. THE OFFER IS BEING MADE FOR ANY AND ALL OF THE OUTSTANDING SHARES.
4. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THE
PREFERRED STOCK PURCHASE RIGHTS HAVING BEEN REDEEMED BY THE BOARD
OF DIRECTORS OF THE COMPANY OR THE PURCHASER BEING SATISFIED, IN
ITS REASONABLE JUDGMENT, THAT SUCH PREFERRED STOCK PURCHASE RIGHTS
ARE INVALID OR OTHERWISE INAPPLICABLE TO THE OFFER, (2) THE
PURCHASER BEING SATISFIED, IN ITS REASONABLE JUDGMENT, THAT THE
PROPOSED MERGER CAN BE CONSUMMATED WITHOUT THE NEED FOR A
SUPERMAJORITY VOTE OF THE COMPANY'S STOCKHOLDERS PURSUANT TO
ARTICLE VI OF THE COMPANY'S CHARTER, (3) THE PURCHASER BEING
SATISFIED, IN ITS REASONABLE JUDGMENT, THAT THE PROVISIONS OF
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW HAVE BEEN
COMPLIED WITH OR ARE INVALID OR OTHERWISE INAPPLICABLE TO THE
OFFER AND THE PROPOSED MERGER, (4) THE COMPANY NOT HAVING ENTERED
INTO OR EFFECTUATED ANY AGREEMENT OR TRANSACTION WITH ANY PERSON
OR ENTITY (INCLUDING ITS STOCKHOLDERS) HAVING THE EFFECT OF
IMPAIRING THE PURCHASER'S ABILITY TO ACQUIRE THE COMPANY OR
OTHERWISE DIMINISHING THE EXPECTED ECONOMIC VALUE TO THE PURCHASER
OF THE ACQUISITION OF THE COMPANY, OR THE COMPANY NOT POSTPONING
ITS 1999 ANNUAL MEETING OF STOCKHOLDERS THAT IS SCHEDULED TO BE
HELD ON MARCH 17, 1999 OR TAKING ANY OTHER ACTION THAT WOULD
IMPEDE THE PARENT'S ABILITY TO NOMINATE ONE OR MORE DIRECTORS FOR
ELECTION OR ITS ABILITY TO MAKE ANY OTHER PROPOSALS TO BE VOTED
UPON BY STOCKHOLDERS AT SUCH MEETING, AND (5) ANY APPLICABLE
WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS
ACT OF 1976, AS AMENDED, HAVING EXPIRED OR BEEN TERMINATED PRIOR
TO THE EXPIRATION OF THE OFFER.
5. TENDERING STOCKHOLDERS WILL NOT BE OBLIGATED TO PAY BROKERAGE FEES
OR COMMISSIONS OR, EXCEPT AS SET FORTH IN INSTRUCTION 6 OF THE
LETTER OF TRANSMITTAL, STOCK TRANSFER TAXES ON THE PURCHASE OF
SHARES BY THE PURCHASER PURSUANT TO THE OFFER. HOWEVER, FEDERAL
INCOME TAX BACKUP WITHHOLDING AT A RATE OF 31% MAY BE REQUIRED,
UNLESS AN EXEMPTION IS PROVIDED OR UNLESS THE REQUIRED TAXPAYER
IDENTIFICATION INFORMATION IS PROVIDED. SEE INSTRUCTION 9 OF THE
LETTER OF TRANSMITTAL.
THE OFFER IS MADE SOLELY BY THE OFFER TO PURCHASE, AND THE RELATED
LETTER OF TRANSMITTAL AND IS BEING MADE TO ALL HOLDERS OF SHARES. THE PURCHASER
IS NOT AWARE OF ANY STATE WHERE THE MAKING OF THE OFFER IS PROHIBITED BY
ADMINISTRATIVE OR JUDICIAL ACTION PURSUANT TO ANY VALID STATE STATUTE. IF THE
PURCHASER BECOMES AWARE OF ANY VALID STATE STATUTE PROHIBITING THE MAKING OF THE
OFFER OR THE ACCEPTANCE OF SHARES PURSUANT THERETO, THE PURCHASER WILL MAKE A
GOOD FAITH EFFORT TO COMPLY WITH SUCH STATE STATUTE. IF, AFTER SUCH GOOD FAITH
EFFORT, THE PURCHASER CANNOT COMPLY WITH SUCH STATE STATUTE, THE OFFER WILL NOT
BE MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) THE HOLDERS OF
SHARES IN SUCH STATE. IN ANY JURISDICTION WHERE THE SECURITIES, BLUE SKY OR
OTHER LAWS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE
OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF THE PURCHASER BY ONE OR MORE
REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
IF YOU WISH TO HAVE US TENDER ANY OR ALL OF YOUR SHARES, PLEASE SO
INSTRUCT US BY COMPLETING, EXECUTING AND RETURNING TO US THE INSTRUCTION FORM
CONTAINED IN THIS LETTER. AN ENVELOPE IN WHICH TO RETURN YOUR INSTRUCTIONS TO US
IS ENCLOSED. IF YOU AUTHORIZE THE TENDER OF YOUR SHARES, ALL SUCH SHARES WILL BE
TENDERED UNLESS OTHERWISE SPECIFIED ON THE INSTRUCTION FORM SET FORTH IN THIS
LETTER. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US
TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
-2-
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER
TO PURCHASE FOR CASH ANY AND ALL OF THE OUTSTANDING
SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
The undersigned acknowledge(s) receipt of your letter, the enclosed
Offer to Purchase, dated December 17, 1998, and the related Letter of
Transmittal (which, as amended from time to time, together constitute the
"Offer"), in connection with the offer by GT Acquisition Corp., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of WHX Corporation,
a Delaware corporation, to purchase all of the shares of common stock, par value
$.25 per share (the "Shares") of Global Industrial Technologies, Inc. (the
"Company"), a Delaware corporation, including the associated Preferred Stock
Purchase Rights issued pursuant to the Rights Agreement, dated as of October 5,
1995, as amended on February 16, 1998, September 18, 1998 and October 5, 1998,
between the Company and The Bank of New York, as Rights Agent, at a price of
$10.50 per Share, net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer.
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or, if no number is indicated in either appropriate space
below, all Shares) held by you for the account of the undersigned, upon the
terms and subject to the conditions set forth in the Offer.
NUMBER OF SHARES TO BE TENDERED:*
SIGN HERE
________________Shares ___________________________________
Account Number:_______________ ___________________________________
Signature(s)
Dated: _____________, 199__ ___________________________________
___________________________________
Please Type or Print Name(s)
___________________________________
___________________________________
Please Type or Print
Address(es) Here
___________________________________
Area Code and Telephone Number
___________________________________
Taxpayer Identification or
Social Security Number(s)
- --------
* Unless otherwise indicated, it will be assumed that all Shares held by
us for your account are to be tendered.
-3-
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
GIVE THE TAXPAYER GIVE THE TAXPAYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF-- FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF--
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate, or Legal entity (Do not furnish
pension trust the trust identifying number of
the personal representative or
trustee unless the legal entity
itself is not designated in the
account title.)(5)
2. Two or more individuals The actual owner of the 10. Corporate account The corporation
(joint account) account or, if combined funds,
any one of the individuals(1)
3. Husband and wife (joint The actual owner of the 11. Religious, charitable, or The organization
account) account if joint funds, educational organization
either person(2) account
4. Custodian account of a The minor(2) 12. Partnership account held The partnership
minor (Uniform Gift to in the name of the
Minors Act) business
5. Adult and minor (joint The adult or, if the minor is 13. Association, club, or other The organization
account) the only contributor, the tax-exempt organization
minor(1)
6. Account in the name of The ward, minor, or 14. A broker or registered The broker or nominee
guardian or committee for incompetent nominee
a designated ward, minor,
or incompetent person(3)
7. a. The usual revocable The grantor-trustee(1) 15. Account with the The public entity
savings trust account Department of Agriculture
(grantor is also in the name of a public
trustee) entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payments
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under State law
8. Sole proprietorship The owner(4)
account
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's, or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a), or an individual
retirement plan.
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
o An international organization or any agency or instrumentality thereof.
o A registered dealer in securities or commodities registered in the U.S.
or a possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of 1940.
o A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
o Payments to nonresident aliens subject to withholding under section
1441.
o Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
o Payments of patronage dividends where the amount received is not paid in
money.
o Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the
following:
o Payments of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the payer.
o Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
o Payments described in section 6049(b)(5) to nonresident aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Payments of mortgage interest to you.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
-2-
<PAGE>
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE--Section 6109 requires most recipients of dividend, interest,
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file a tax return. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS--If you fail to
include any portion of an includable payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 20% on any portion of an
underpayment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE
-3-
CONTACTS:
Abernathy MacGregor Frank
Patricia Sturms/Joele Frank
(212) 371-5999
WHX COMMENCES TENDER OFFER
FOR GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
New York--December 17, 1998--WHX Corporation (NYSE: WHX) announced today that it
has commenced a cash tender offer for any and all outstanding shares of Global
Industrial Technologies, Inc. (NYSE: GIX ) at $10.50 per share. The expiration
and withdrawal date for the tender offer is 12:00 midnight, New York City time,
on Friday, January 15, 1999.
On Tuesday, December 15, 1998, WHX announced its intent to consummate the offer,
which is not conditioned upon WHX obtaining financing. The offer is conditioned
on other terms and conditions specified in the Offer to Purchase. The full terms
and conditions of the offer are set forth in the tender offer materials filed
today with the Securities and Exchange Commission to be mailed promptly to
Global stockholders.
Innisfree M&A Corporation is acting as information agent for WHX in the tender
offer. Copies of the tender offer materials may be obtained by calling Innisfree
at (888) 750-5834. There is no dealer manager.
WHX is a holding company that has been structured to invest in and/or acquire a
diverse group of businesses on a decentralized basis. WHX's primary businesses
currently are Handy & Harman ("H&H"), a diversified manufacturing company whose
strategic business segments encompass, among others, specialty wire and tubing,
and precious metals plating, stamping and fabrication, and Wheeling-Pittsburgh
Steel Corporation ("WPSC"), a vertically integrated manufacturer of value-added
and flat rolled steel products. WHX's other businesses include Unimast
Incorporated ("Unimast"), a leading manufacturer of steel framing and other
products for commercial and residential construction and WHX Entertainment
Corp., a co-owner of a racetrack and video lottery facility located in Wheeling,
West Virginia.
This announcement is neither an offer to purchase nor a solicitation of
an offer to sell Shares or Rights. The Offer is made solely by the Offer to
Purchase dated December 17, 1998 and the related Letter of Transmittal and is
not being made to (nor will tenders be accepted from or on behalf of) holders of
Shares or Rights in any jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the laws of such
jurisdiction. In those jurisdictions where securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer shall be
deemed to be made on behalf of GT Acquisition Corp. by one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ANY AND ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
AT $10.50 PER SHARE
BY
GT ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
GT Acquisition Corp. (the "Purchaser") is offering to purchase any and
all of the outstanding shares of common stock, par value $.25 per share (the
"Shares") of Global Industrial Technologies, Inc., a Delaware corporation (the
"Company"), including the associated Preferred Stock Purchase Rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of October 31, 1995,
as amended on February 16, 1998, September 18, 1998 and October 5, 1998, between
the Company and The Bank of New York, as Rights Agent, at a price of $10.50 per
Share, net to the seller in cash, without interest thereon (the "Offer Price"),
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated December 17, 1998 (the "Offer to Purchase") and in the related Letter of
Transmittal (which, as amended from time to time, together constitute the
"Offer"). The Purchaser is a Delaware corporation and a wholly owned subsidiary
of WHX Corporation, a Delaware corporation (the "Parent"). Unless the context
requires otherwise, all references to Shares herein include the associated
Rights, and all references to the Rights include all benefits that may inure to
the holders of the Rights pursuant to the Rights Agreement. Unless the Rights
are redeemed prior to the Expiration Date (as defined below), holders of Shares
will be required to tender one associated Right for each Share tendered in order
to effect a valid tender of such Share. Accordingly, stockholders who sell their
Rights separately from their Shares and do not otherwise acquire Rights may not
be able to satisfy the requirements of the Offer for the tender of Shares.
The Purpose of the Offer is to enable the Parent to acquire control of
and the entire equity interest in the Company.
<PAGE>
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THE PREFERRED
STOCK PURCHASE RIGHTS HAVING BEEN REDEEMED BY THE BOARD OF DIRECTORS OF THE
COMPANY OR THE PURCHASER BEING SATISFIED, IN ITS REASONABLE JUDGMENT, THAT SUCH
PREFERRED STOCK PURCHASE RIGHTS ARE INVALID OR OTHERWISE INAPPLICABLE TO THE
OFFER, (2) THE PURCHASER BEING SATISFIED, IN ITS REASONABLE JUDGMENT, THAT THE
PROPOSED MERGER CAN BE CONSUMMATED WITHOUT THE NEED FOR A SUPERMAJORITY VOTE OF
THE COMPANY'S STOCKHOLDERS PURSUANT TO ARTICLE VI OF THE COMPANY'S CHARTER, (3)
THE PURCHASER BEING SATISFIED, IN ITS REASONABLE JUDGMENT, THAT THE PROVISIONS
OF SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW HAVE BEEN COMPLIED WITH
OR ARE INVALID OR OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER,
(4) THE COMPANY NOT HAVING ENTERED INTO OR EFFECTUATED ANY AGREEMENT OR
TRANSACTION WITH ANY PERSON OR ENTITY (INCLUDING ITS STOCKHOLDERS) HAVING THE
EFFECT OF IMPAIRING THE PURCHASER'S ABILITY TO ACQUIRE THE COMPANY OR OTHERWISE
DIMINISHING THE EXPECTED ECONOMIC VALUE TO THE PURCHASER OF THE ACQUISITION OF
THE COMPANY, OR THE COMPANY NOT POSTPONING ITS 1999 ANNUAL MEETING OF
STOCKHOLDERS THAT IS SCHEDULED TO BE HELD ON MARCH 17, 1999 OR TAKING ANY OTHER
ACTION THAT WOULD IMPEDE THE PARENT'S ABILITY TO NOMINATE ONE OR MORE DIRECTORS
FOR ELECTION OR ITS ABILITY TO MAKE ANY OTHER PROPOSALS TO BE VOTED UPON BY
STOCKHOLDERS AT SUCH MEETING, AND (5) ANY APPLICABLE WAITING PERIOD UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, HAVING EXPIRED
OR BEEN TERMINATED PRIOR TO THE EXPIRATION OF THE OFFER.
THE OFFER IS NOT SUBJECT TO ANY MINIMUM NUMBER OF SHARES BEING TENDERED
AND IS NOT CONDITIONED ON OBTAINING FINANCING.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JANUARY 15, 1999 (THE "EXPIRATION DATE"), UNLESS THE OFFER IS
EXTENDED.
The Purchaser expressly reserves the right, in its sole discretion, at
any time and from time to time, to extend for any reason the period of time
during which the Offer is open in accordance with applicable regulations of the
Securities and Exchange Commission, including as a result of the occurrence of
any of the events specified in Section 14 of the Offer to Purchase, by giving
oral or written notice of such extension to the Depositary (as defined in the
Offer to Purchase) and by making a public announcement thereof. During any such
extension, all Shares previously tendered and not properly withdrawn will remain
subject to the Offer, subject to the rights of a tendering stockholder to
withdraw any tendered Shares.
For purposes of the Offer, the Purchaser will be deemed to have
accepted for payment, and thereby purchased, tendered Shares if, as and when the
Purchaser gives oral or written notice to the Depositary of the Purchaser's
acceptance of such Shares for payment. Payment for Shares accepted pursuant to
the Offer will be made by deposit of the aggregate purchase price therefor with
the Depositary, which will act as agent for tendering stockholders for the
purpose of receiving payment from the Purchaser and transmitting payment to such
tendering stockholders. Under no circumstances will interest be paid by the
Purchaser by reason of any delay in making such payment. Upon the deposit of
funds with the Depositary for the purpose of making payments to tendering
stockholders, the Purchaser's obligation to make such payment shall be satisfied
and tendering stockholders must thereafter look solely to the Depositary for
payment of amounts owed to them by reason of the acceptance for payment of
Shares pursuant to the Offer. In all cases, payment for Shares tendered and
accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (a) certificates evidencing such Shares ("Share
Certificates"), or a timely confirmation of the book-entry transfer of such
Shares and, if applicable, Rights into the Depositary's account at a Book-Entry
Transfer Facility (as defined in the Offer to Purchase), pursuant to the
procedures set forth in Section 3 of the Offer to Purchase, (b) the Letter of
Transmittal (or a manually signed facsimile thereof), properly completed and
duly executed, with any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase) in connection with a book-entry transfer, and
(c) any other documents required by the Letter of Transmittal.
If, for any reason whatsoever, acceptance for payment of or payment for
any Shares tendered pursuant to the Offer is delayed, or the Purchaser is unable
to accept for payment or pay for Shares tendered pursuant to the Offer, then,
without prejudice to the Purchaser's rights set forth herein, the Depositary
may, nevertheless, on behalf of the Purchaser
-2-
<PAGE>
and subject to Rule 14e-1(c) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), retain tendered Shares and such Shares may not be
withdrawn except to the extent that the tendering stockholder is entitled to and
duly exercises withdrawal rights as described in Section 4 of the Offer to
Purchase.
The Purchaser will pay any stock transfer taxes incident to the
transfer to it of validly tendered Shares, except as otherwise provided in the
Letter of Transmittal, as well as any charges and expenses of the Depositary and
the Information Agent. If any tendered Shares are not accepted for payment for
any reason pursuant to the terms and conditions of the Offer or if Share
Certificates are submitted evidencing more Shares than are tendered, Share
Certificates evidencing unpurchased or untendered Shares will be returned,
without expense to the tendering stockholder (or, in the case of Shares tendered
by book-entry transfer into the Depositary's account at a Book-Entry Transfer
Facility pursuant to the procedure set forth in Section 3 of the Offer to
Purchase, such Shares will be credited to an account maintained at such
Book-Entry Transfer Facility), as promptly as practicable following the
expiration or termination of the Offer.
Except as otherwise provided in Section 4 of the Offer to Purchase,
tenders of Shares made pursuant to the Offer are irrevocable. Shares tendered
pursuant to the Offer may be withdrawn at any time prior to the Expiration Date
and, unless theretofore accepted for payment by the Purchaser pursuant to the
Offer, may also be withdrawn at any time after February 15, 1999 or at such
later time as may apply if the Offer is extended.
If the Purchaser extends the Offer, is delayed in its acceptance for
payment of Shares or is unable to accept Shares for payment pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer, the Depositary may, nevertheless, on behalf of the Purchaser, retain
tendered Shares, and such Shares may not be withdrawn except to the extent that
tendering stockholders are entitled to withdrawal rights as described in Section
4 of the Offer to Purchase. Any such delay will be by an extension of the Offer
to the extent required by law.
For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be timely received by the Depositary at one of its
addresses set forth on the back cover of the Offer to Purchase. Any such notice
of withdrawal must specify the name of the person who tendered the Shares to be
withdrawn, the number of Shares to be withdrawn and (if Share Certificates have
been tendered) the name of the registered holder, if different from that of the
person who tendered such Shares. If Share Certificates to be withdrawn have been
delivered or otherwise identified to the Depositary, then prior to the release
of such Share Certificates, the serial numbers shown on the particular Share
Certificates to be withdrawn must be submitted to the Depositary, and the
signature(s) on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined in the Offer to Purchase), unless such Shares have been
tendered for the account of an Eligible Institution. If Shares have been
tendered pursuant to the procedure for book-entry transfer as set forth in
Section 3 of the Offer to Purchase, any notice of withdrawal must also specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares, in which case a notice of withdrawal will be
effective if delivered to the Depositary by any method of delivery described in
the first sentence of this paragraph.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of
the General Rules and Regulations under the Exchange Act is contained in the
Offer to Purchase and is incorporated herein by reference.
A request is being made to the Company, pursuant to Rule 14d-5 under
the Exchange Act, for the use of the Company's stockholder list and security
position listings for the purpose of disseminating the Offer to holders of
Shares. Upon compliance by the Company with such request, the Offer to Purchase
and the related Letter of Transmittal and, if required, other relevant materials
will be mailed to record holders of Shares or to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the Company's stockholder list, or, if applicable, who are
listed as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of Shares.
-3-
<PAGE>
The Offer to Purchase and the Letter of Transmittal contain important
information which should be read carefully before any decision is made with
respect to the Offer.
Questions and requests for assistance, and requests for copies of the
Offer to Purchase, the Letter of Transmittal and other tender offer materials,
may be directed to the Information Agent at its address and telephone numbers
set forth below. Holders of Shares may also contact brokers, dealers, commercial
banks and trust companies for additional copies of the Offer to Purchase, the
Letter of Transmittal or other tender offer materials.
The Information Agent for the Offer is:
INNISFREE M&A INCORPORATED
501 Madison Avenue, 20th Floor
New York, New York 10022
(212) 750-5833
or
CALL TOLL FREE: (888) 750-5834
December 17, 1998
-4-
