<PAGE> 1
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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
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
CLUB CAR, INC.
(NAME OF SUBJECT COMPANY)
------------------------
CLARK ACQUISITION SUB, INC.
CLARK EQUIPMENT COMPANY
(BIDDERS)
------------------------
COMMON STOCK, PAR VALUE $.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
------------------------
18947B103
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
BERNARD D. HENELY, ESQ.
GENERAL COUNSEL
CLARK EQUIPMENT COMPANY
100 NORTH MICHIGAN STREET
P.O. BOX 7008
SOUTH BEND, INDIANA 46634
(219) 239-0145
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
------------------------
COPY TO:
WILLIAM F. WYNNE, JR., ESQ.
WHITE & CASE
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
CALCULATION OF FILING FEE
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<TABLE>
<S> <C>
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TRANSACTION VALUATION* AMOUNT OF FILING FEE**
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$227,250,150................................................ $45,450.03
</TABLE>
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* For purposes of calculating the filing fee only. This calculation assumes the
purchase of 9,090,006 shares of Common Stock, par value $.01 per share,
together with the associated Preferred Stock Purchase Rights issued pursuant
to the Rights Agreement dated as of September 24, 1993, as amended, between
the Company and Trust Company Bank, at a price per Share of $25.00.
** 1/50 of 1% of Transaction Valuation
/ / 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.
<TABLE>
<S> <C>
Amount Previously Paid: Filing Party:
Form or Registration No.: Date Filed:
</TABLE>
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<PAGE> 2
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14D-1
CUSIP NO. 18947B103
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<TABLE>
<C> <S>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Clark Acquisition Sub, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(a) OR 2(b) / /
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
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7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
0*
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8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES /X/
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9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0%*
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10 TYPE OF REPORTING PERSON
CO
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</TABLE>
<PAGE> 3
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14D-1
CUSIP NO. 18947B103
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<TABLE>
<C> <S>
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Clark Equipment Company
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC, BK
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(a) OR 2(b) / /
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
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7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
0*
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8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES /X/
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9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0%*
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10 TYPE OF REPORTING PERSON
CO
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</TABLE>
* On February 3, 1995, Clark Equipment Company, a Delaware corporation
("Clark"), and Clark Acquisition Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Clark (the "Purchaser"), entered into a Stock Tender
Agreement (the "Stock Tender Agreement") with KIA III-Club Car, L.P., Kelso
Equity Partners II, L.P. and certain other stockholders of Club Car, Inc. (the
"Company") (collectively, the "Stock Tender Parties"). Pursuant to such Stock
Tender Agreement and subject to the terms and conditions contained therein, the
Stock Tender Parties will validly tender and not withdraw an aggregate of
2,916,329 shares of common stock, $.01 par value per share, of the Company
(representing approximately 28.6% of the outstanding shares of common stock of
the Company, calculated on a fully diluted basis) owned by them pursuant to and
in accordance with the terms of the Offer (as defined herein), not later than
the fifth business day after commencement of the Offer. The filing of this
information by Clark and the Purchaser shall not be construed as an admission
that either Clark or the Purchaser, for purposes of Section 13(d) or 13(g) of
the Securities Exchange Act of 1934, as amended, is the beneficial owner of such
shares and such persons expressly disclaim any beneficial ownership. The Stock
Tender Agreement is described more fully in Section 11 of the Offer to Purchase
attached hereto as exhibit (a)(1).
<PAGE> 4
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement
on Schedule 13D with respect to the Stock Tender Agreement. The item numbers and
responses thereto 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 Club Car, Inc., a Delaware
corporation (the "Company"), and the address of its principal executive offices
is 4152 Washington Road, Martinez, Georgia 30907.
(b) This Statement relates to the offer by Clark Acquisition Sub, Inc., a
Delaware corporation (the "Purchaser"), to purchase all the outstanding shares
of Common Stock (the "Common Stock"), par value $.01 per share, of the Company,
together with the associated Preferred Stock Purchase Rights (the "Rights")
issued pursuant to the Rights Agreement dated as of September 24, 1993, between
the Company and Trust Company Bank, as Rights Agent (the Common Stock, together
with the Rights being herein referred to as the "Shares"), at a price of $25 per
Share, net to the seller in cash (the "Offer Price"), without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated February 8, 1995 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"), copies of which are attached hereto as
Exhibits (a)(1) and (a)(2), respectively. Information concerning the number of
outstanding Shares is set forth in the "Introduction" of the Offer to Purchase
and is incorporated herein by reference.
(c) Information concerning the principal market in which the Shares are
traded and the high and low sales prices of the Shares for each quarterly period
during the past two years is set forth in Section 6 ("Price Range of Shares;
Dividends") of the Offer to Purchase and is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d); (g) This Statement is being filed by the Purchaser, a Delaware
corporation, and Clark Equipment Company, a Delaware corporation ("Clark"). The
Purchaser is a wholly owned subsidiary of Clark. Information concerning the
principal business and the address of the principal offices of the Purchaser and
Clark is set forth in Section 8 ("Certain Information Concerning the Purchaser
and Clark") of the Offer to Purchase and is incorporated herein by reference.
The name, business addresses, present principal occupations or employment,
material occupations, positions, offices or employment during the last five
years and citizenship of the directors and executive officers of the Purchaser
and Clark are set forth in Schedule I to the Offer to Purchase and are
incorporated herein by reference.
(e), (f) During the last five years, none of the Purchaser or Clark, and,
to the best of Clark's knowledge, none of the directors and executive officers
of the Purchaser or Clark has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which any such person 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 law.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) The information set forth in Sections 10 ("Background of the Offer;
Contacts with the Company") and 11 ("Purpose of the Offer; Plans for the
Company; Merger Agreement; Stock Tender Agreement") of the Offer to Purchase is
incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(c) The information set forth in Section 9 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
1
<PAGE> 5
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) The information set forth in the "Introduction" and Sections 11
("Purpose of the Offer; Plans for the Company; Merger Agreement; Stock Tender
Agreement") and 13 ("Effect of the Offer on the Market for the Shares; Exchange
Listing and Exchange Act Registration") of 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 Sections 8 ("Certain Information
Concerning the Purchaser and Clark") and 10 ("Background of the Offer; Contacts
with the Company") of 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 the "Introduction" and Sections 10
("Background of the Offer; Contacts with the Company") and 11 ("Purpose of the
Offer; Plans for the Company; Merger Agreement; Stock Tender Agreement") of 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") of the Offer
to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 8 ("Certain Information Concerning the
Purchaser and Clark") of the Offer to Purchase is incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in Section 11 ("Purpose of the Offer; Plans
for the Company; Merger Agreement; Stock Tender Agreement") of the Offer to
Purchase is incorporated herein by reference.
(b)-(c) The information set forth in Section 15 ("Certain Legal Matters;
Regulatory Approvals") of the Offer to Purchase is incorporated herein by
reference.
(d) The information set forth in Section 13 ("Effect of the Offer on the
Market for the Shares; Exchange Listing and Exchange Act Registration") of the
Offer to Purchase is incorporated herein by reference.
(e) Not applicable.
(f) The information set forth in the Offer to Purchase, the Letter of
Transmittal, the Agreement and Plan of Merger dated as of February 3, 1995 among
Clark, the Purchaser and the Company, copies of which are attached hereto as
Exhibits (a)(1), (a)(2) and (c)(1), respectively, is incorporated herein by
reference.
2
<PAGE> 6
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C> <C>
Exhibit (a)(1) Offer to Purchase.
Exhibit (a)(2) Letter of Transmittal with respect to the Shares.
Exhibit (a)(3) Form of letter, dated February 8, 1995, to brokers, dealers, commercial
banks, trust companies and other nominees.
Exhibit (a)(4) Form of letter to be used by brokers, dealers, commercial banks, trust
companies and nominees to their clients.
Exhibit (a)(5) Press Release, dated February 3, 1995.
Exhibit (a)(6) Form of newspaper advertisement, dated February 8, 1995.
Exhibit (a)(7) Notice of Guaranteed Delivery.
Exhibit (a)(8) Guidelines for Substitute Form W-9.
Exhibit (c)(1) Agreement and Plan of Merger, dated as of February 3, 1995, by and among
the Company, the Purchaser and Clark.
Exhibit (c)(2) Stock Tender Agreement dated as of February 3, 1995 by and among certain
stockholders, the Purchaser and Clark.
Exhibit (d) None
Exhibit (e) Not applicable.
Exhibit (f) None
</TABLE>
3
<PAGE> 7
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
CLARK ACQUISITION SUB, INC.
By: /s/ Bernard D. Henely
---------------------------------
Name: Bernard D. Henely
Title: Vice President and
Secretary
CLARK EQUIPMENT COMPANY
By: /s/ Bernard D. Henely
---------------------------------
Name: Bernard D. Henely
Title: Vice President and General
Counsel
Dated: February 8, 1995
4
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- -------- --------------------------------------------------------------------- -----------
<S> <C> <C>
(a)(1) Offer to Purchase.
(a)(2) Letter of Transmittal with respect to the Shares.
(a)(3) Form of letter, dated February 8, 1995, to brokers, dealers,
commercial banks, trust companies and other nominees.
(a)(4) Form of letter to be used by brokers, dealers, commercial banks,
trust companies and nominees to their clients.
(a)(5) Press Release, dated February 3, 1995.
(a)(6) Form of newspaper advertisement, dated February 8, 1995.
(a)(7) Notice of Guaranteed Delivery.
(a)(8) Guidelines for Substitute Form W-9.
(c)(1) Agreement and Plan of Merger, dated as of February 3, 1995, by and
among the Company, the Purchaser and Clark.
(c)(2) Stock Tender Agreement dated as of February 3, 1995 by and among
certain stockholders, the Purchaser and Clark.
(d) None
(e) Not applicable.
(f) None
</TABLE>
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLUB CAR, INC.
AT
$25.00 NET PER SHARE
BY
CLARK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
CLARK EQUIPMENT COMPANY
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON WEDNESDAY, MARCH 8, 1995,
UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN
PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF SHARES (AND THE ASSOCIATED
PREFERRED STOCK PURCHASE RIGHTS) WHICH CONSTITUTES AT LEAST A
MAJORITY OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS.
THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS.
SEE SECTION 14.
THE BOARD OF DIRECTORS OF CLUB CAR, INC. UNANIMOUSLY HAS DETERMINED THAT EACH OF
THE OFFER AND THE MERGER (AS DEFINED HEREIN) IS FAIR TO, AND IN THE BEST
INTERESTS OF, THE STOCKHOLDERS OF CLUB CAR, INC., AND UNANIMOUSLY
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES PURSUANT TO THE OFFER.
CLARK EQUIPMENT COMPANY AND CLARK ACQUISITION SUB, INC. HAVE ENTERED INTO A
STOCK TENDER AGREEMENT WITH KIA III-CLUB CAR, L.P., KELSO EQUITY PARTNERS II,
L.P. AND CERTAIN OTHER STOCKHOLDERS OF CLUB CAR, INC., PURSUANT TO WHICH,
AMONG OTHER THINGS, SUCH STOCKHOLDERS HAVE AGREED TO TENDER IN THE
OFFER, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE STOCK
TENDER AGREEMENT, ALL SHARES OWNED BY SUCH STOCKHOLDERS
(APPROXIMATELY 28.6% OF CLUB CAR, INC.'S OUTSTANDING SHARES
CALCULATED ON A FULLY DILUTED BASIS). SEE SECTION 11.
THE SHARES ARE LISTED FOR TRADING ON THE NASDAQ NATIONAL MARKET UNDER THE
SYMBOL "CLBC." STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET
QUOTATIONS FOR THE SHARES. SEE SECTION 6.
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares (including the associated Preferred Stock Purchase 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 and mail or
deliver it together with the certificate(s) evidencing tendered Shares, and any
other required documents, to the Depositary or tender such Shares pursuant to
the procedures for book-entry transfer set forth in Section 3 or (ii) request
such stockholder's broker, dealer, commercial bank, trust company or other
nominee to effect the transaction for such stockholder. A stockholder whose
Shares are registered in the name of a broker, dealer, commercial bank, trust
company or other nominee must contact such broker, dealer, commercial bank,
trust company or other nominee if such stockholder desires to tender such
Shares.
A stockholder who desires to tender Shares and whose certificates evidencing
such Shares 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 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 or the Dealer Manager at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase. A stockholder may also contact brokers, dealers, commercial
banks and trust companies for assistance concerning the Offer.
------------------------
The Dealer Manager for the Offer is:
CS First Boston
February 8, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INTRODUCTION............................................................................ 1
THE TENDER OFFER........................................................................ 2
1. Terms of the Offer............................................................... 2
2. Acceptance for Payment and Payment for Shares.................................... 4
3. Procedures for Tendering Shares.................................................. 5
4. Withdrawal Rights................................................................ 7
5. Certain Federal Income Tax Consequences.......................................... 8
6. Price Range of Shares; Dividends................................................. 8
7. Certain Information Concerning the Company....................................... 9
8. Certain Information Concerning the Purchaser and Clark........................... 11
9. Source and Amount of Funds....................................................... 12
10. Background of the Offer; Contacts with the Company............................... 13
11. Purpose of the Offer; Plans for the Company; Merger Agreement; Stock Tender
Agreement........................................................................ 14
12. Dividends and Distributions...................................................... 20
13. Effect of the Offer on the Market for the Shares; Exchange Listing and Exchange
Act Registration................................................................. 21
14. Conditions of the Offer.......................................................... 22
15. Certain Legal Matters; Regulatory Approvals...................................... 24
16. Fees and Expenses................................................................ 26
17. Miscellaneous.................................................................... 27
SCHEDULE I Information Concerning the Directors and Executive Officers of Clark and
the Purchaser............................................................. I-1
</TABLE>
i
<PAGE> 3
To the Holders of Common Stock of Club Car, Inc.:
INTRODUCTION
Clark Acquisition Sub, Inc. (the "Purchaser"), a Delaware corporation and a
wholly owned subsidiary of Clark Equipment Company, a Delaware corporation
("Clark"), hereby offers to purchase all outstanding shares of common stock, par
value $.01 per share (the "Common Stock"), of Club Car, Inc., a Delaware
corporation (the "Company"), and the associated Preferred Stock Purchase Rights
(the "Rights" and, together with the Common Stock, the "Shares") issued pursuant
to the Rights Agreement, dated as of September 24, 1993, as amended, between the
Company and Trust Company Bank, as Rights Agent (the "Rights Agreement"), at a
price of $25.00 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 or extended from time to time, together constitute the "Offer").
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 pursuant to the
Offer. The Purchaser will pay all fees and expenses of CS First Boston
Corporation ("CS First Boston"), as Dealer Manager (the "Dealer Manager"), Trust
Company Bank, as Depositary (the "Depositary"), and D.F. King & Co., Inc., as
Information Agent (the "Information Agent"), in each case incurred in connection
with the Offer. See Section 16.
The Offer is conditioned upon, among other things, there having been
validly tendered and not properly withdrawn prior to the expiration of the Offer
a number of Shares which constitutes at least a majority of the Shares
outstanding on a fully diluted basis (the "Minimum Condition"). The Offer is
also subject to other terms and conditions as described in Section 14. The
Company has informed the Purchaser that, as of February 1, 1995, there were
9,090,006 Shares issued and outstanding and 1,100,050 shares of Common Stock
reserved for issuance upon exercise of the outstanding options granted under the
Company's stock option plans. As a result, as of such date, the Minimum
Condition would be satisfied if the Purchaser acquired 5,095,029 Shares in the
Offer.
The Board of Directors of the Company (the "Board of Directors") has, by
unanimous vote, approved each of the Offer and the Merger, has determined that
each of the Offer and the Merger is fair to, and in the best interests of, the
Company's stockholders and unanimously recommends that stockholders accept the
Offer and tender their Shares pursuant to the Offer.
The Company has advised Clark that Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ") has delivered to the Board of Directors its opinion as to
the fairness of the $25.00 per Share cash consideration to be received by the
stockholders of the Company pursuant to the Offer and the Merger. Copies of the
opinion of DLJ, which sets forth the factors considered and the assumptions made
by DLJ, are contained in the Company's Solicitation/Recommendation Statement on
Schedule 14D-9 (the "Schedule 14D-9"), which is being mailed to stockholders
herewith.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of February 3, 1995 (the "Merger Agreement"), by and among Clark, the
Purchaser and the Company. The Merger Agreement provides that, among other
things, as soon as practicable after the purchase of Shares pursuant to the
Offer and the satisfaction of the conditions set forth in the Merger Agreement
and in accordance with the relevant provisions of the General Corporation Law of
the State of Delaware ("Delaware Law"), the Purchaser will be merged with and
into the Company (the "Merger"). Following consummation of the Merger, the
Company will continue as the surviving corporation (the "Surviving Corporation")
of the Merger and will be a wholly owned subsidiary of Clark. At the effective
time of the Merger (the "Effective Time"), each Share, including the associated
Rights, issued and outstanding immediately prior to the Effective Time (other
than shares of Common Stock held directly or indirectly by Clark or any
subsidiary of Clark or in the treasury of the Company and other than Shares
owned by stockholders who have properly exercised rights of appraisal under
Section 262 of the Delaware Law) will be converted into the right to receive the
Offer Price, without interest (the "Merger Consideration"). The Merger Agreement
is more fully described in Section 11.
<PAGE> 4
The Merger Agreement provides that, promptly upon the purchase by the
Purchaser of greater than 50% of the outstanding Shares (on a fully diluted
basis) pursuant to the Offer, and from time to time thereafter, the Purchaser
shall be entitled to designate up to such number of directors, rounded up to the
next whole number, on the Board of Directors as will give the Purchaser
representation on the Board of Directors equal to the product of the total
number of directors on the Board of Directors multiplied by the percentage that
the aggregate number of Shares then beneficially owned by the Purchaser and its
affiliates following such purchase bears to the total number of Shares then
outstanding. In the Merger Agreement, the Company, subject to certain
limitations (see Section 11), has agreed to take any and all action needed to
cause the Purchaser's designees to be elected as directors of the Company,
including increasing the size of the Board of Directors or securing the
resignations of incumbent directors or both.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including, if required by law, the approval and adoption of
the Merger Agreement by the requisite vote of the stockholders of the Company.
See Section 11. Under the Company's Restated Certificate of Incorporation and
Delaware Law, except as otherwise described below, the affirmative vote of the
holders of a majority of the outstanding Shares is required to approve and adopt
the Merger Agreement and the Merger. Consequently, if the Purchaser acquires
(pursuant to the Offer or otherwise) at least a majority of the then outstanding
Shares, the Purchaser will have sufficient voting power to approve and adopt the
Merger Agreement and the Merger without the vote of any other stockholder.
Under Delaware Law, if the Purchaser acquires, pursuant to the Offer or
otherwise, at least 90% of the then outstanding Shares, the Purchaser will be
able to approve and adopt the Merger Agreement and the transactions contemplated
thereby, including the Merger, without a vote of the Company's stockholders. In
such event, Clark and the Purchaser intend to take all necessary and appropriate
action to cause the Merger to become effective as soon as practicable after such
acquisition, without a meeting of the Company's stockholders. If, however, the
Purchaser does not acquire at least 90% of the then outstanding Shares pursuant
to the Offer or otherwise and a vote of the Company's stockholders is required
under Delaware Law, a longer period of time will be required to effect the
Merger. See Section 11.
After the execution of the Merger Agreement, KIA III-Club Car, L.P., Kelso
Equity Partners II, L.P. and certain other stockholders of the Company
(collectively, the "Stock Tender Parties") each entered into a Stock Tender
Agreement, dated as of February 3, 1995, with Clark and the Purchaser (the
"Stock Tender Agreement"). The Stock Tender Parties collectively own 2,916,329
Shares, or approximately 28.6% of the outstanding Shares calculated on a fully
diluted basis. Pursuant to the Stock Tender Agreement, the Stock Tender Parties
have agreed, so long as the Board of Directors of the Company has not withdrawn
its recommendation of the Offer in accordance with the Merger Agreement, validly
to tender pursuant to the Offer and not to withdraw all Shares which are owned
of record or beneficially by them prior to the Expiration Date (as defined
herein). The Stock Tender Agreement is more fully described in Section 11.
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.
THE TENDER OFFER
1. TERMS OF THE OFFER. 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 all Shares validly tendered prior to the Expiration Date (as hereinafter
defined) and not withdrawn in accordance with Section 4. The term "Expiration
Date" means 12:00 Midnight, New York City time on Wednesday, March 8, 1995,
unless and until the Purchaser, in its sole discretion (but subject to the terms
of the Merger Agreement), shall have extended the period of time during which
the Offer is open, in which event the term "Expiration Date" shall mean the
latest time and date at which the Offer, as so extended by the Purchaser, shall
expire.
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Condition and the expiration or termination of all waiting periods
imposed by the Hart-Scott-Rodino Antitrust Improvements
2
<PAGE> 5
Act of 1976, as amended, and the regulations thereunder (the "HSR Act"). The
Offer is also subject to certain other conditions set forth in Section 14 below.
If these or any of the other conditions referred to in Section 14 are not
satisfied or any events specified in Section 14 have occurred or are determined
by the Purchaser to have occurred prior to the Expiration Date, the Purchaser
reserves the right (but is not obligated) to (i) 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 the provisions of
the Merger Agreement, and, subject to complying with applicable rules and
regulations of the Securities and Exchange Commission (the "Commission"),
purchase all Shares validly tendered, or (iii) subject to the limitations
described below, 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; provided,
however, the Minimum Condition may be waived by the Purchaser only with the
consent of the Company.
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, including the occurrence of any of the events specified
in Section 14, by giving oral or written notice of such extension to the
Depositary; provided, however, that the Offer may not be extended beyond any
scheduled Expiration Date unless the Company consents thereto or (i) any person
has made an Acquisition Proposal (as defined in Section 11) or (ii) any of the
conditions specified in Section 14 shall not have been satisfied, provided
further, (x) notwithstanding that the conditions specified in Section 14 have
not been satisfied, unless an Acquisition Proposal has been made, the Offer may
not be extended beyond June 8, 1995 and (y) if the conditions specified in
Section 14 have been satisfied, then the Offer may be extended for an additional
five business days so long as at the time of such extension, all conditions to
Clark's obligations to purchase Shares pursuant to the Offer are irrevocably
waived. During any such extension, all Shares previously tendered and not
withdrawn will remain subject to the Offer, subject to the rights of a tendering
stockholder to withdraw its Shares. See Section 4.
Subject to the applicable regulations of the Commission, the Purchaser also
expressly reserves the right, in its sole discretion (but subject to the terms
of the Merger Agreement), 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 pending receipt of any
regulatory approval specified in Section 15 or in order to comply in whole or in
part with any other applicable law, (ii) to terminate the Offer and not accept
for payment any Shares if any of the conditions referred to in Section 14 has
not been satisfied or upon the occurrence of any of the events specified in
Section 14 and (iii) to waive any condition or otherwise amend the Offer in any
respect by giving oral or written notice of such delay, termination, waiver or
amendment to the Depositary and by making a public announcement thereof,
provided that, the Minimum Condition may only be waived with the Company's
consent.
The Merger Agreement provides that the Purchaser may modify the terms of
the Offer except that, without the consent of the Company, the Purchaser will
not decrease the Offer Price, decrease the number of Shares sought in the Offer,
change the form of consideration payable in the Offer or modify or add to the
conditions set forth in Section 14.
The Purchaser acknowledges that (i) Rule 14e-1(c) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), requires the Purchaser to
pay the consideration offered or return the Shares tendered promptly after the
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
3
<PAGE> 6
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 the
information concerning the Offer, or if it waives a material condition of the
Offer, the Purchaser will extend the Offer to the extent required by Rules
14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act.
The Company has provided the Purchaser with the Company's stockholder list
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal,
and other relevant materials, will be mailed to record holders of Shares whose
names appear on the Company's stockholder list and will be furnished, for
subsequent transmittal to beneficial owners of Shares, to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the stockholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing.
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, 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 Section 14. Subject to applicable rules of the Commission and the terms of
the Merger Agreement, the Purchaser expressly reserves the right, in its
discretion, to delay acceptance for payment of, or payment for, Shares pending
receipt of any regulatory approvals specified in Section 15.
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," which term shall also include
related certificates for Rights ("Rights Certificates"), if any have been
distributed to stockholders) 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, the Midwest Securities
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 with
any required signature guarantees or an Agent's Message (as defined below) in
connection with a book-entry transfer, and (iii) any other documents required by
the Letter of Transmittal.
The term "Agent's Message" means a message, transmitted by a book-entry
transfer facility to, and received by, the Depositary forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgement from the participant in such Book-Entry
Transfer Facility tendering the 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 such participant.
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 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 on the purchase
price for Shares be paid by the Purchaser, regardless of any delay in making
such payment.
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 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, such Shares will be credited to an account
4
<PAGE> 7
maintained at such Book-Entry Transfer Facility), as promptly as practicable
following the expiration, termination or withdrawal 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.
Stockholders of the Company will be required to tender one Right for each
Share tendered in order to effect a valid tender of such Share. If Rights
Certificates have been distributed to holders of Shares prior to the
consummation of the Offer, Rights 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 Rights Certificates have not
been distributed prior to the time Shares are accepted for payment by the
Purchaser, a tender of Shares will also constitute a tender of the associated
Rights.
The Purchaser reserves the right to transfer or assign, in whole at any
time, or in part from time to time, to one or more of its affiliates, the right
to purchase all or any portion of the Shares tendered pursuant to the Offer, but
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 connection with a book-entry delivery of Shares, 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 such address 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 ANY BOOK-ENTRY TRANSFER FACILITY, IS AT
THE 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.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at each Book-Entry Transfer Facility 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 any of the Book-Entry Transfer
Facilities' systems may make book-entry delivery of Shares by causing a
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 a Book-Entry Transfer
Facility, the Letter of Transmittal (or facsimile thereof), 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 THE 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 member of the Medallion Signature Guarantee
Program or by any other "eligible guarantor institution," as such term is
defined in Rule 17A(b)-15 under the Exchange Act (each, an "Eligible
Institution"), unless the Shares tendered thereby are tendered (i) by a
registered holder of Shares who has not completed either the
5
<PAGE> 8
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 a Share
Certificate not accepted for payment or not tendered is 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 book-entry transfer, an Agent's Message) and any other documents
required by such Letter of Transmittal, are received by the Depositary
within five Nasdaq National Market 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.
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 Confirmation of the delivery of such Shares, if available, (ii) a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) or, in the case of book-entry transfer, an Agent's Message
and (iii) any other documents required by the Letter of Transmittal.
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 sole discretion, whose determination will be
final and binding on all parties. The Purchaser reserves the absolute right to
reject any or all tenders of any 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. 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. None of Clark, the Purchaser, the Dealer Manager, 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 non-cash
dividends, distributions, rights, other Shares, or other securities issued or
issuable in respect of such Shares on or after February 3, 1995). All such
proxies shall be
6
<PAGE> 9
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.
Withholding. To prevent United States federal backup withholding tax with
respect to payment to certain stockholders of the purchase price of Shares
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 withholding tax by
completing the Substitute Form W-9 included as part of 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. Tenders of Shares made pursuant to the Offer are
irrevocable, except that such Shares 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 April 8, 1995, 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 this
Section 4.
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 the Book-Entry Transfer Facility to be credited with
the withdrawn Shares.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination will be final and binding. None of Clark, the
Purchaser, the Dealer Manager, 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
re-tendered at any time prior to the Expiration Date by following one of the
procedures described in Section 3.
7
<PAGE> 10
5. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.
General. The receipt of cash for Shares pursuant to the Offer or in the
Merger by a stockholder that is a citizen or resident of the United States, a
partnership or corporation created in or under the laws of the United States or
any political subdivision thereof or therein or an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source (a "U.S. Holder") will be a taxable transaction for United States federal
income tax purposes and may also be a taxable transaction under applicable
state, local or foreign tax laws. In general, a U.S. Holder will recognize gain
or loss for United States federal income tax purposes equal to the difference,
if any, between the amount of cash received in exchange for the Shares sold and
such U.S. Holder's adjusted tax basis in such Shares. Assuming that the Shares
constitute a capital asset in the hands of the U.S. Holder, such gain or loss
will be capital gain or loss and will be long-term capital gain or loss if such
stockholder has held the Shares for more than one year at the time of the sale.
The foregoing discussion may not be applicable to certain types of
stockholders, including stockholders who acquired Shares pursuant to the
exercise of stock options or otherwise as compensation, holders that are not
U.S. holders, and stockholders that are otherwise subject to special tax rules,
such as banks, insurance companies, dealers in securities or currencies,
tax-exempt entities, persons that hold Shares as a position in a "straddle" or
as part of a "hedging" or "conversion" transaction for tax purposes and persons
that have a "functional currency" other than the United States dollar.
Backup Withholding Tax. As noted in Section 3 hereof, a stockholder (other
than an "exempt recipient," including a corporation and a non-U.S. Holder that
provides appropriate certification (if the payor does not have actual knowledge
that such certificate is false)) that receives cash in exchange for Shares may
be subject to United States federal backup withholding tax at a rate equal to
31%, unless the stockholder provides its taxpayer identification number and
certifies that such stockholder is not subject to backup withholding tax by
submitting a completed Substitute Form W-9 to the Depositary. Accordingly, each
stockholder should complete, sign and submit the Substitute Form W-9 included as
part of the Letter of Transmittal in order to avoid the imposition of such
backup withholding tax.
The United States federal income tax discussion set forth above is included
for general information only and is based upon laws, regulations, rulings and
decisions now in effect, all of which are subject to change (possibly
retroactively). Stockholders are urged to consult their tax advisors with
respect to the specific tax consequences of the Offer and the Merger to them,
including the application and effect of the alternative minimum tax, and state,
local and foreign tax laws.
6. PRICE RANGE OF SHARES; DIVIDENDS. The Shares are listed and principally
traded on the Nasdaq National Market and quoted under the symbol "CLBC". The
following table sets forth, for the quarters indicated, the high and low Nasdaq
National Market sales prices per Share as reported by the Dow Jones News
Service.
<TABLE>
<CAPTION>
MARKET
PRICE
-----------
HIGH LOW
---- ---
<S> <C> <C>
FISCAL YEAR ENDED SEPTEMBER 25, 1994:*
First Quarter......................................... 21 1/4 14 1/4
Second Quarter........................................ 18 1/2 13 3/4
Third Quarter......................................... 15 3/4 13
Fourth Quarter........................................ 17 13 1/4
FISCAL YEAR ENDING SEPTEMBER 24, 1995:
First Quarter......................................... 16 3/4 13 1/2
Second Quarter (through Feb 1, 1995).................. 18 15 1/2
</TABLE>
- -------------------------
* The Company's Shares began trading in the Nasdaq National Market on October
19, 1993.
On February 2, 1995, the last full trading day prior to the public
announcement of the execution of the Merger Agreement, the reported Nasdaq
National Market closing sales price of the Shares was $16 5/8 per Share. On
February 7, 1995, the last full trading day prior to the date of this Offer to
Purchase, the reported Nasdaq National Market closing sales price of the Shares
was $24 23/32 per Share. Stockholders are urged to obtain a current market
quotation for the Shares.
8
<PAGE> 11
7. CERTAIN INFORMATION CONCERNING THE COMPANY. 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 Commission and other public sources. Neither Clark 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 Clark or the Purchaser.
The Company is a Delaware corporation and its principal executive offices
are located at 4152 Washington Road, Martinez, Georgia 30951. The telephone
number of the Company at such offices is (706) 863-3000.
Based on information provided by the Company, the Purchaser believes that
the Company is one of the three largest manufacturers of golf cars in the world.
The Company designs, manufactures, markets and services electric and gasoline
golf cars for recreational use and similar off-road utility vehicles for golf,
commercial and industrial use.
Financial Information. Set forth below is certain selected consolidated
financial information relating to the Company and its subsidiaries which has
been excerpted or derived from the financial statements contained in the
Company's Quarterly Report on Form 10-Q for the three months ended December 25,
1994 (the "Company Form 10-Q") and the Company's Annual Report on Form 10-K for
the fiscal year ended September 25, 1994, as amended (the "Company Form 10-K").
More comprehensive financial information is included in the Company Form 10-Q
and the Company Form 10-K and other documents filed by the Company with the
Commission. The financial information that follows is qualified in its entirety
by reference to the Company Form 10-Q and the Company Form 10-K and other
documents, including the financial statements and related notes contained
therein. The Company Form 10-Q and the Company Form 10-K and other documents may
be examined and copies may be obtained from the offices of the Commission in the
manner set forth below.
CLUB CAR, INC.
SELECTED CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------- YEAR ENDED
-----------------------------------------------
DECEMBER 25, DECEMBER 26, SEPTEMBER 25, SEPTEMBER 26, SEPTEMBER 27,
1994 1993 1994 1993 1992
------------ ------------ ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Net sales........................ $ 38,397 $ 32,662 $ 186,108 $ 158,476 $ 137,129
Cost of sales.................... 28,240 23,972 135,801 116,034 100,228
Selling, general and
administrative expenses........ 7,548 6,488 28,969 26,295 20,891
Amortization of goodwill......... 282 282 1,130 1,130 1,130
------------ ------------ ------------- ------------- -------------
Operating income................. 2,327 1,920 20,208 15,017 14,880
Interest expense, net............ 406 1,839 4,592 12,718 12,370
------------ ------------ ------------- ------------- -------------
Income before income tax
provision...................... 1,921 81 15,616 2,299 2,510
Provision for income taxes....... 837 186 6,374 1,415 1,558
------------ ------------ ------------- ------------- -------------
Income (loss) before
extraordinary item............. 1,084 (105) 9,242 884 952
Extraordinary loss on early
retirements of debt, net of tax
benefits....................... -- (4,941) (6,979) -- --
------------ ------------ ------------- ------------- -------------
Net income (loss)................ $ 1,084 $ (5,046) $ 2,263 $ 884 $ 952
========== ========== ========== ========== ==========
Net income (loss) per share:(1)
Income (loss) before
extraordinary item............. $ 0.12 $ (0.01) $ 1.01 $ 0.15 $ 0.16
Extraordinary loss -- debt
retirements.................... -- (0.61) (0.76) -- --
------------ ------------ ------------- ------------- -------------
Net income (loss) per share...... $ 0.12 $ (0.62) $ 0.25 $ 0.15 $ 0.16
========== ========== ========== ========== ==========
Weighted average shares
outstanding (fully diluted).... 9,418,604 8,173,657 9,193,167 6,094,402 5,973,374
</TABLE>
- -------------------------
(1) Earnings (loss) per share gives retroactive effect to a 5.6-for-1 stock
split effected in September, 1993.
9
<PAGE> 12
CLUB CAR, INC.
SELECTED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 25, SEPTEMBER 25, SEPTEMBER 26,
1994 1994 1993
------------ ------------- -------------
<S> <C> <C> <C>
Current Assets:
Cash and cash equivalents............................. $ 10,544 $ 16,181 $ 14,429
Trade accounts receivable, net of allowance for
doubtful accounts.................................. 26,678 28,380 21,064
Inventories........................................... 20,627 15,956 15,708
Other current assets............................... 2,129 1,084 1,215
------------ ------------- -------------
Total current assets............................... 59,978 61,601 52,416
Property on operating leases at cost, net of accumulated
depreciation.......................................... 5,471 5,888 4,646
Net property, plant, and equipment...................... 14,777 13,436 12,182
Goodwill, net of accumulated amortization............... 38,313 38,595 39,725
Other assets............................................ 2,660 1,647 3,247
------------ ------------- -------------
Total assets....................................... $121,199 $ 121,167 $ 112,216
========== ========== ==========
Current liabilities:
Accounts payable...................................... $ 13,592 $ 9,795 $ 10,487
Accrued liabilities................................... 5,731 8,873 14,915
Income taxes payable.................................. 775 649 --
Current maturities of long-term debt.................. 5,552 6,177 185
------------ ------------- -------------
Total current liabilities............................... 25,650 25,494 25,587
Long-term debt (net of current maturities).............. 34,536 35,927 83,905
Other liabilities....................................... 4,905 3,448 3,002
Deferred income taxes................................... -- 1,229 --
------------ ------------- -------------
Total liabilities.................................. 65,091 66,098 112,494
------------ ------------- -------------
Commitments and contingencies
Stockholders' equity (deficit):
Preferred stock -- no shares issued................... --
Common stock, $.01 par value: 20,000,000 shares
authorized; 9,067,606, 9,066,206 and 5,703,347
shares outstanding................................. 92 92 57
Additional paid-in capital............................ 64,356 64,347 11,135
Retained earnings..................................... 3,449 2,365 102
Other................................................. (11,789) (11,735) (11,572)
------------ ------------- -------------
Stockholders' equity (deficit).......................... 56,108 55,069 (278)
------------ ------------- -------------
$121,199 $ 121,167 $ 112,216
========== ========== ==========
</TABLE>
Certain Company Projections. During the course of discussions between Clark
and the Company, the Company provided Clark or its representatives with certain
non-public business and financial information about the Company. Clark has been
advised that such information was prepared in September 1994 solely as part of
the Company's annual planning, independent of the Company's knowledge of any
potential sale to Clark, and included forecasts for the fiscal year ending
September 24, 1995 of (i) net sales of $196.7 million, (ii) operating income
plus depreciation and amortization of approximately $26.3 million and (iii) net
income of $10.8 million. These forecasts have not been updated since September
23, 1994. The Company has advised Clark that it does not, as a matter of course,
make public any projections as to future earnings or performance, the
projections set forth above are included in this Offer to Purchase only because
such information was provided to Clark and the projections were not prepared
with a view to public disclosure or compliance with the published guidelines of
the Commission or the guidelines established by the American Institute of
Certified Public Accountants regarding projections or forecasts. Clark has been
advised that the Company's internal operating projections are, in general,
prepared solely for internal use and capital budgeting and other
10
<PAGE> 13
management decisions and are subjective in many respects and thus susceptible to
various interpretations and periodic revision based on actual experience and
business developments. The Company has advised Clark that the projections were
based on a number of assumptions that are beyond the control of the Company, the
Purchaser or Clark or their respective financial advisors, including economic
forecasting (both general and specific to the Company's business), which is
inherently uncertain and subjective. None of the Company, the Purchaser or Clark
or their respective financial advisors assumes any responsibility for the
accuracy of any of the projections. The inclusion of the foregoing projections
should not be regarded as an indication that the Company, Clark, the Purchaser
or any other person who received such information considers it an accurate
prediction of future events. Neither the Company, Clark nor the Purchaser
intends to update, revise or correct such projections if they become inaccurate,
even in the short term.
Available Information. 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 Commission 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 Company's securities, 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 Commission. These reports, proxy statements and other
information may be inspected at the public reference facilities of the
Commission located in Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and also may be inspected and copied at prescribed rates at the following
regional offices of the Commission: 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 Commission's
customary fees, from the Commission's principal office at 450 Fifth Street,
N.W., Washington, D.C. 20549. Reports, proxy statements and other information
concerning the Company may also be inspected at the offices of The Nasdaq Stock
Market, 1735 K Street, N.W., Washington, D.C. 20006 (202) 728-8000.
8. CERTAIN INFORMATION CONCERNING THE PURCHASER AND CLARK.
The Purchaser. The Purchaser, a newly incorporated Delaware corporation,
has not conducted any business other than in connection with the Offer, the
Merger Agreement and the Stock Tender Agreement. All of the issued and
outstanding shares of capital stock of the Purchaser are beneficially owned by
Clark. The principal executive offices of the Purchaser are located at 100 North
Michigan Street, P.O. Box 7008, South Bend, Indiana 46634. The telephone number
of the Purchaser at such offices is (219) 239-0100.
Clark. Clark is a Delaware corporation and is the successor to certain
corporations, the first of which was organized in 1902. The principal executive
offices of Clark are located at 100 North Michigan Street, P.O. Box 7008, South
Bend, Indiana 46634. The telephone number of Clark at such offices is (219)
239-0100. Clark's business is the design, manufacture and sale of skid-steer
loaders, highway paving and construction equipment and axles and transmissions
for off-highway equipment.
Clark is subject to the information and reporting requirements of the
Exchange Act and is required to file reports and other information with the
Commission relating to its business, financial condition and other matters.
Information, as of particular dates, concerning Clark's directors and officers,
their remuneration, stock options granted to them, the principal holders of
Clark's securities, any material interests of such persons in transactions with
Clark and other matters is required to be disclosed in proxy statements
distributed to Clark's stockholders and filed with the Commission. These
reports, proxy statements and other information may be inspected and copies may
be obtained in the same manner as set forth for the Company in Section 7.
Clark's common stock is listed on the New York Stock Exchange (the "NYSE"), and
reports, proxy statements and other information concerning Clark should also be
available for inspection at the offices of the NYSE, 20 Broad Street, New York,
New York 10005.
Set forth below are certain selected consolidated financial data with
respect to Clark and its subsidiaries for Clark's last three fiscal years,
excerpted or derived from audited financial statements presented in a Form 8-K
dated September 13, 1994 and from the unaudited financial statements contained
in a Form 8-K dated January 26, 1995, in each case filed by Clark with the
Commission. More comprehensive financial information is included in such reports
and other documents filed by Clark with the Commission. The
11
<PAGE> 14
financial information summary set forth below is qualified in its entirety by
reference to those reports and other documents which have been filed with the
Commission and all the financial information and related notes contained
therein.
CLARK EQUIPMENT COMPANY
SELECTED CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1994 1993 1992
---------- ---------- --------
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales.................................................. $ 946,599 $ 692,022 $658,535
Net income................................................. 161,935 48,019 65,958
Earnings (per share)....................................... 9.30 2.76 3.81
Weighted average shares outstanding........................ 17,412 17,421 17,334
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------
1994 1993 1992
---------- ---------- --------
<S> <C> <C> <C>
BALANCE SHEET DATA:
Total assets............................................... $1,193,899 $1,003,274 $958,691
Total liabilities.......................................... 741,739 735,121 706,104
Total stockholders' equity................................. 452,160 268,153 252,587
</TABLE>
The name, citizenship, business address, principal occupation or employment
and five-year employment history for each of the directors and executive
officers of the Purchaser and Clark are set forth in Schedule I hereto.
Except as described in this Offer to Purchase, (i) none of the Purchaser,
Clark nor, to the best knowledge of the Purchaser and Clark, any of the persons
listed in Schedule I to this Offer to Purchase or any associate or
majority-owned subsidiary of the Purchaser, Clark or any of the persons so
listed beneficially owns or has any right to acquire, directly or indirectly,
any Shares and (ii) none of the Purchaser, Clark nor, to the best knowledge of
the Purchaser and Clark, any of the persons or entities referred to above nor
any director, executive officer or subsidiary of any of the foregoing has
effected any transaction in the Shares during the past 60 days.
Except as provided in the Merger Agreement, the Stock Tender Agreement and
as otherwise described in this Offer to Purchase, none of the Purchaser, Clark
nor, to the best knowledge of the Purchaser and Clark, any of the persons listed
in Schedule I to this Offer to Purchase, has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or voting of
such securities, 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, since October 1991,
neither the Purchaser nor Clark nor, to the best knowledge of the Purchaser and
Clark, any of the persons listed on Schedule I hereto, has had any business
relationship or transaction with the Company or any of its executive officers,
directors or affiliates that is required to be reported under the rules and
regulations of the Commission applicable to the Offer. Except as set forth in
this Offer to Purchase, since October 1991, there have been no contacts,
negotiations or transactions between any of the Purchaser, Clark, or any of
their respective subsidiaries, or, to the best knowledge of the Purchaser and
Clark, any of the persons listed in Schedule I to this Offer to Purchase, on the
one hand, and the Company or its affiliates, on the other hand, concerning a
merger, consolidation or acquisition, tender offer or other acquisition of
securities, an election of directors or a sale or other transfer of a material
amount of assets.
9. SOURCE AND AMOUNT OF FUNDS. The total amount of funds required by the
Purchaser and Clark to consummate the Offer and the Merger (including the cash
out of stock options as described under Section 11) and to pay related fees and
expenses (inclusive of estimated expenses of the Company) is estimated to be
12
<PAGE> 15
approximately $241.0 million (or approximately $279.6 million if Clark repays in
full certain indebtedness under the Company's credit facility, as described
below). The Purchaser will obtain all of such funds from Clark or its
affiliates. Clark will provide the funds for such purposes from its working
capital and/or its Master Credit Agreement, dated as of April 6, 1994 (the
"Credit Agreement"), among Clark, Chemical Bank, as agent, and the financial
institutions named therein. Pursuant to the Credit Agreement, Clark may borrow
up to an aggregate amount of $100 million for working capital and acquisition
and other corporate purposes on a revolving basis. As of February 7, 1995, Clark
had no outstanding borrowings under the Credit Agreement. The Credit Agreement
has a three-year term, renewable upon consent of the lenders for two successive
one-year terms upon proper notice. Loans will bear interest on the unpaid
principal amount at varying rates depending upon the type of loan and, in
certain instances, upon Clark's then current credit rating.
Clark's ability to borrow under the Credit Agreement is conditioned on
compliance with certain covenants and satisfaction of certain other
requirements. Clark believes that these conditions will be satisfied and that
funds will be available prior to the time that funds are required to pay for
Shares tendered in the Offer.
The Company is party to a credit facility (the "Company Credit Facility")
with Bankers Trust Company, as agent for a group of lenders, which provides for
term loan borrowings of up to $42 million (the "Term Loan Facility") and
revolving borrowings of up to $30 million (the "Revolving Credit Facility"). As
of February 6, 1995, the Company had outstanding borrowings of approximately
$38.6 million under the Term Loan Facility and had no borrowings under the
Revolving Credit Facility. The Company's borrowings under the Company Credit
Facility are unsecured. The final maturity for all borrowings under the Company
Credit Facility is October 31, 1999. The Company is entitled, at its option, to
repay amounts due thereunder, subject to certain conditions. The Company Credit
Facility will either be amended to permit the consummation of the Offer and the
Merger or will be repaid and terminated upon completion of the Offer. In the
event that Clark decides to repay and terminate the Company's Credit Facility,
the funds required for such purpose will be provided by Clark from its working
capital or borrowed under the Credit Agreement.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY.
In June 1994, CS First Boston, Clark's financial advisor, met with Clark to
discuss Clark's interest in acquiring the Company. During the succeeding two
months, Clark and CS First Boston reviewed publicly available information about
the Company and considered the feasibility and desirability of undertaking an
acquisition of the Company. In late August 1994, CS First Boston contacted the
Company's principal stockholder to discuss Clark's interest in acquiring all of
the outstanding Shares. On September 30, CS First Boston and Clark met with a
representative of the principal stockholder, who is also a director of the
Company, to discuss Clark's interest in acquiring the Company. The stockholder
representative indicated that, at that point in time, the principal stockholder
was not likely to support a sale of the Company.
During the next two months a limited number of telephone conversations took
place among Clark, certain non-management directors of the Company and CS First
Boston concerning a possible acquisition and possible price ranges for such an
acquisition. At a regularly scheduled meeting of the Board of Directors of the
Company on December 6, 1994, the Board of Directors authorized a meeting between
members of the Board of Directors and Clark. On December 21, 1994, that meeting
was held between two management directors and one non-management director of the
Company and representatives of Clark to discuss further aspects of Clark's
interest. Pricing was not discussed at this meeting. During the first week of
January, two non-management directors of the Company contacted CS First Boston
and indicated the price at which they would support a sale of the Company. After
consultation with Clark, CS First Boston contacted the two non-management
directors and indicated a price at which Clark would be willing to acquire the
Company, which price was lower than the price previously communicated to CS
First Boston by the two directors. Following CS First Boston's communication to
the two directors, Clark and a representative of the principal stockholder, who
is also a director of the Company, had several conversations regarding the price
at which Clark would be interested in acquiring the Company. On January 10,
1995, the Board of Directors of the Company authorized the formation of a
special committee (the "Special Committee") composed of the members of the Board
of Directors other than management and authorized the retention by the Special
Committee of legal and
13
<PAGE> 16
financial advisors. The Special Committee authorized two of its members to
contact Clark. On January 11, 1995, such members of the Special Committee
requested that Clark provide the Special Committee with a written proposal to
effect the acquisition of the Company.
On January 13, 1995, Clark delivered a letter to the Company expressing
Clark's interest in purchasing all of the outstanding Shares (including Shares
subject to options) at a purchase price of $25 in cash per Share. Clark's letter
stated that Clark would require break-up fee and expense reimbursement
provisions as well as customary agreements from the Company's principal
stockholder and officers and directors with respect to the sale to Clark of all
Shares owned by such persons. Clark also conditioned its interest in pursuing
the transaction upon the Company keeping the letter of interest confidential.
Clark requested a response from the Company by January 18, 1995. On January 18,
1995, two members of the Special Committee contacted Clark and indicated that
the Special Committee would be willing to commence negotiations with respect to
Clark's acquisition of the Company. On January 20, Clark delivered to the
Special Committee a proposed form of merger agreement and, on January 23, Clark
and the Company entered into a confidentiality agreement.
On January 23, the Company began to supply non-public due diligence
materials to Clark and its representatives. From January 23 to February 2, Clark
and its representatives conducted additional legal and business due diligence
and Clark and the Company and their respective representatives negotiated the
terms of a merger agreement. On January 24, at the request of the Special
Committee, Clark forwarded to the Special Committee a proposed form of stock
option agreement which Clark would require from the Company's principal
stockholder and officers and directors. On January 26, the Special Committee
informed Clark that it would not approve a transaction which included such an
agreement. Clark indicated that it would be willing to consider alternative
arrangements with respect to the Shares owned by the Company's principal
stockholder and officers and directors which would be acceptable to the Special
Committee. On February 1, Clark provided to the Special Committee a proposed
form of the stock tender agreement.
On February 2, 1995, the respective Boards of Directors of the Company and
Clark each met and approved the Offer, the Merger Agreement and related matters.
The Board of Directors of the Company also approved Clark and the Purchaser
negotiating the definitive terms of the Stock Tender Agreement with the Stock
Tender Parties and entering into the Stock Tender Agreement with such persons.
On February 3, 1995, Clark, the Purchaser and the Company executed the Merger
Agreement and Clark, the Purchaser and the Stock Tender Parties executed the
Stock Tender Agreement. Immediately thereafter, Clark and the Company jointly
announced the transaction.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; MERGER AGREEMENT; STOCK
TENDER AGREEMENT.
PURPOSE OF THE OFFER. The purpose of the Offer, the Merger, the Merger
Agreement and the Stock Tender Agreement is to enable Clark to acquire control
of the entire equity interest of the Company. Upon consummation of the Merger,
the Company will become a wholly owned subsidiary of Clark. The Offer is being
made pursuant to the Merger Agreement.
PLANS FOR THE COMPANY. It is expected that, initially following the Merger,
the business and operations of the Company will continue without substantial
change. Clark will continue to evaluate the business and operations of the
Company during the pendency of the Offer and after the consummation of the Offer
and the Merger and will take such further actions as it deems appropriate under
the circumstances then existing.
MERGER AGREEMENT. The following is a summary of certain provisions of the
Merger Agreement. The summary is qualified in its entirety by reference to the
Merger Agreement which is incorporated herein by reference and a copy of which
has been filed with the Commission as an exhibit to Clark's Statement on
Schedule 14D-1. The Merger Agreement may be examined and copies may be obtained
at the place and in the manner set forth in Section 7 of this Offer to Purchase.
The Offer. The Merger Agreement provides that the Purchaser will commence
the Offer and that, upon the terms and subject to the prior satisfaction or
waiver of the conditions of the Offer, the Purchaser will purchase all Shares
validly tendered pursuant to the Offer. The Merger Agreement provides that the
Purchaser may modify the terms of the Offer, including without limitation,
except as provided below, to
14
<PAGE> 17
extend the Offer beyond any scheduled expiration date, except that, without the
written consent of the Company, the Purchaser will not decrease the Offer Price,
decrease the number of Shares sought in the Offer, waive the Minimum Condition,
change the form of consideration payable in the Offer, or modify or add to the
conditions of the Offer specified in Section 14. Notwithstanding the foregoing,
the Offer may not be extended beyond any scheduled Expiration Date unless the
Company consents thereto or (i) any person has made an Acquisition Proposal or
(ii) any of the conditions specified in Section 14 shall not have been
satisfied; provided, further, (x) notwithstanding that the conditions specified
in Section 14 have not been satisfied, unless an Acquisition Proposal has been
made, the Offer may not be extended beyond June 8, 1995 and (y) if the
conditions specified in Section 14 have been satisfied, then the Offer may be
extended for an additional five business days so long as at the time of such
extension, all conditions to Clark's obligations to purchase Shares pursuant to
the Offer are irrevocably waived.
The Merger. The Merger Agreement provides that, subject to the terms and
conditions thereof, and in accordance with Delaware Law, at the Effective Time,
the Purchaser shall be merged with and into the Company. As a result of the
Merger, the separate corporate existence of the Purchaser will cease and the
Company will continue as the Surviving Corporation.
The Merger Agreement provides that at the Effective Time, each issued and
outstanding share of Common Stock, including the associated Rights (other than
shares of Common Stock that are owned directly or indirectly by Clark or any
subsidiary of Clark or by the Company as treasury stock and other than Shares
owned by stockholders who have properly exercised rights of appraisal under
Section 262 of the Delaware Law) shall be converted into the right to receive
the Offer Price, without interest.
Pursuant to the Merger Agreement, each issued and outstanding share of
common stock, par value $.01 per share, of the Purchaser shall be converted into
one fully paid and non-assessable share of Common Stock of the Company.
Pursuant to the Merger Agreement, the Company has amended the Rights
Agreement (the "Rights Amendment") (i) to render the Rights Agreement
inapplicable with respect to the Offer, the Merger and, the entering into, and
performance by, Clark and the Purchaser of the Stock Tender Agreement and the
other transactions contemplated by the Merger Agreement, (ii) to prevent the
Merger Agreement, the Stock Tender Agreement or the consummation of any of the
transactions contemplated thereby, including without limitation, the Offer and
the consummation of the Offer and the Merger, from resulting in the occurrence
of a Distribution Date (as defined in the Rights Agreement) and (iii) to provide
that neither Clark, the Purchaser nor any of their affiliates will be deemed to
be an Acquiring Person (as defined in the Rights Agreement) by reason of the
transactions provided for in the Merger Agreement and the Stock Tender
Agreement. The Rights Amendment renders the Rights inoperative with respect to
any acquisition of Shares by Clark, the Purchaser or any of their affiliates
pursuant to the Offer, the Merger Agreement and/or the Stock Tender Agreement.
Upon consummation of the Merger, all Rights will expire and be of no further
force or effect.
The Company's Board of Directors. The Merger Agreement provides that,
promptly upon the acceptance for payment, and payment by the Purchaser, in
accordance with the Offer for more than 50% of the outstanding Shares (on a
fully diluted basis), the Purchaser will be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors of the
Company as is equal to the product of the total number of directors on such
Board of Directors (giving effect to the directors designated pursuant to this
sentence) multiplied by the percentage that the aggregate number of Shares
beneficially owned by the Purchaser, Clark or any of their affiliates bears to
the total number of Shares then outstanding and the Company and its Board of
Directors will, at such time, take any and all such action needed to cause the
Purchaser's designees to be appointed to the Company's Board of Directors
(including to cause directors to resign). Notwithstanding the foregoing, neither
the Company, Clark nor the Purchaser will take any action to remove or replace
any member of the Special Committee during the period after consummation of the
Offer and prior to the Effective Time, and if for any reason during such period
there are fewer than two members of the Special Committee on the Company's Board
of Directors, the Company, Clark and the Purchaser will use their reasonable
efforts to ensure that two members ("Continuing Directors") of the Company's
Board of Directors are either members of the Special Committee or persons who
are neither
15
<PAGE> 18
officers nor employees of the Company or associated or affiliated with, or
designated by, Clark. The Company's obligation to appoint the Purchaser's
designees to the Board of Directors is subject to Section 14(f) of the Exchange
Act and Rule 14f-1 promulgated thereunder. The Merger Agreement also provides
that following the election or appointment of Clark's designees to the Company's
Board of Directors and prior
to the Effective Time, if requested by the majority of the Continuing Directors,
such designees will abstain from acting upon, and the approval of the majority
of the Continuing Directors will be required to authorize, any termination of
the Merger Agreement by the Company, or any amendment of the Merger Agreement
requiring action by the Board of Directors, or any extension of time for
performance of any obligations or other acts of Clark or the Purchaser under the
Merger Agreement or any waiver of compliance with any other covenants,
agreements or conditions under the Merger Agreement for the benefit of the
Company.
Stockholders Meeting. Pursuant to the Merger Agreement, the Company will,
if required by applicable law in order to consummate the Merger, duly call, give
notice of, convene and hold a special meeting of its stockholders (the "Special
Meeting") as soon as practicable following the acceptance for payment and
purchase of Shares by the Purchaser pursuant to the Offer for the purpose of
voting upon the Merger Agreement and the Merger. The Merger Agreement provides
that the Company will, if required by applicable law in order to consummate the
Merger, prepare and file with the Commission a preliminary proxy or information
statement relating to the Merger and the Merger Agreement and use its reasonable
efforts (i) to obtain and furnish the information required to be included by the
Commission in the Proxy Statement (as defined herein) and, after consultation
with Clark and the Purchaser, to respond promptly to any comments made by the
Commission with respect to the preliminary proxy or information statement and
cause a definitive proxy or information statement (the "Proxy Statement") to be
mailed to its stockholders and (ii) to obtain the necessary approvals of the
Merger and the Merger Agreement by its stockholders. If the Purchaser acquires
at least a majority of the outstanding Shares, the Purchaser will have
sufficient voting power to approve the Merger, even if no other stockholder
votes in favor of the Merger. The Company has agreed, subject to the limitations
described below under the heading "No Solicitation," to include in the Proxy
Statement the recommendation of the Board of Directors that stockholders of the
Company vote in favor of the approval of the Merger and the adoption of the
Merger Agreement.
Interim Operations. In the Merger Agreement, the Company has agreed that,
except as expressly contemplated by the Merger Agreement or agreed to by Clark,
prior to the closing of the Merger, the business of the Company and its
subsidiaries shall be conducted only in the ordinary and usual course and, to
the extent consistent therewith, each of the Company and its subsidiaries will
use its reasonable best efforts to preserve its business organization intact and
maintain satisfactory relations with licensors, customers, suppliers,
distributors, employees, creditors and others having business relationships with
it. In addition, each of the Company and its subsidiaries will not (i) issue or
sell any shares of its capital stock (other than in connection with the exercise
of options outstanding on the date of the Merger Agreement) or any of its other
securities, or issue any securities convertible into, or options, warrants or
rights to purchase or subscribe to, or enter into any arrangement or contract
with respect to the issuance or sale of, any shares of its capital stock or any
of its other securities or make any other changes in its capital structure; (ii)
sell or pledge or agree to sell or pledge any stock owned by it in any of its
subsidiaries; (iii) declare, pay, set aside or make any dividend or other
distribution or payment with respect to, or split, combine, redeem or
reclassify, any shares of its capital stock; (iv) enter into any contract or
commitment with respect to capital expenditures in excess of $200,000 for items
or projects which were not included in the Company's 1995 capital plan
previously approved by the Company's Board of Directors without first informing
and consulting with Clark's Chief Executive Officer or enter into any other
material contracts except contracts in the ordinary course of business; (v)
acquire a material amount of assets (other than inventory) or securities or
release or relinquish any material contract rights; (vi) adopt or amend any
Employee Plan (as defined in the Merger Agreement) or non-employee benefit plan
or program, employment agreement, license agreement or retirement agreement, or,
except in the ordinary course of business consistent with past practice, pay any
bonus or contingent or other extraordinary compensation; (vii) other than in the
ordinary course of business consistent with past practice, transfer, lease,
license, guarantee, sell, mortgage, pledge, dispose of, encumber or subject to
any lien, any assets or incur or modify any indebtedness or other liability or
issue any debt securities or assume, guarantee or endorse or otherwise as an
accommodation become responsible for the obligations of any person; (viii) agree
to the
16
<PAGE> 19
settlement of any material claim or litigation; (ix) make any material tax
election or settle or compromise any material tax liability; (x) permit any
insurance policy naming it as beneficiary or a loss payable payee to be
cancelled without notice to Clark; (xi) make any material change in its method
of accounting; (xii) make any change in or amendment to its Restated Certificate
of Incorporation or By-Laws (or comparable corporate documents); and (xiii)
agree, in writing or otherwise, to take any of the foregoing actions.
No Solicitation. In the Merger Agreement, the Company has agreed that
neither the Company nor any of its subsidiaries or affiliates will, directly or
indirectly, take (and the Company will not authorize or permit its or its
subsidiaries' officers, directors, employees, representatives, consultants,
investment bankers, attorneys, accountants or other agents or affiliates, to so
take) any action to (i) solicit or initiate the submission of any proposed
merger or other business combination, sale or other disposition of any material
amount of assets, sale of shares of capital stock, tender offer or exchange
offer or similar transactions involving the Company or any of its subsidiaries
(an "Acquisition Proposal"), (ii) enter into an agreement for the sale or other
disposition by the Company or any of its subsidiaries of a material amount of
assets or a sale of shares of capital stock whether by merger or other business
combination or tender or exchange offer or (iii) participate in any way in
discussions or negotiations with, or, furnish any information to, any Person, as
defined in the Merger Agreement (other than Clark or the Purchaser), in
connection with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal. The Merger Agreement provides that the Company may
participate in discussions or negotiations with or furnish information to any
third party which proposes a transaction which the Board of Directors of the
Company reasonably believes will result in an Acquisition Proposal, if the Board
of Directors believes (and has been advised by counsel) that failing to take
such action would constitute a breach of its fiduciary duties. In addition,
neither the Board of Directors of the Company nor any committee thereof will
withdraw or modify in a manner adverse to Clark the approval and recommendation
of the Offer and the Merger Agreement or approve or recommend any Acquisition
Proposal, provided that the Company may recommend to its stockholders an
Acquisition Proposal and in connection therewith withdraw or modify its approval
or recommendation of the Offer or the Merger if (i) the Board of Directors of
the Company has determined that the Acquisition Proposal is a bona fide proposal
made by a third party to acquire all of the outstanding Common Stock of the
Company pursuant to a tender offer or a merger, or to purchase all or
substantially all of the assets of the Company, on terms which a majority of the
members of the Board of Directors of the Company determines in its good faith
reasonable judgment (based on the advice of its financial and legal advisors) to
be more favorable to the Company and its stockholders than the transactions
contemplated by the Offer or Merger, and which does not provide for any breakup
fee or other inducement to the acquiror other than reimbursement of documented
out-of-pocket expenses incurred in connection with such proposal, (ii) all the
conditions to the Company's right to terminate the Merger Agreement have been
satisfied (including the payment of a termination fee), and (iii) simultaneously
with such withdrawal, modification or recommendation, the Merger Agreement is
properly terminated. The Company has agreed to promptly advise Clark of any
request for information or of any Acquisition Proposal, the material terms and
conditions of such request or Acquisition Proposal, and the identity of the
Person making any such Acquisition Proposal. The Company has agreed to use its
reasonable best efforts to keep Clark informed of the status and details
(including amendments or proposed amendments) of any such request or Acquisition
Proposal or inquiry.
Directors' and Officers' Insurance and Indemnification. The Merger
Agreement provides that the Company shall either (i) maintain the Company's
existing directors' and officers' liability insurance covering those persons who
were covered on the date of the Merger Agreement by the Company's directors' and
officers' liability insurance policy ("Indemnified Parties") for a period of
five years after the Effective Time, except that the Company may substitute
therefor policies of substantially similar coverage and amounts containing terms
no less advantageous and provided that said substitution does not result in any
gaps or lapses in coverage with respect to matters occurring prior to the
Effective Time or (ii) cause Clark's directors' and officers' liability
insurance then in effect to cover those persons who are covered on the date of
the Merger Agreement by the Company's directors' and officers' liability
insurance policy with respect to those matters covered by the Company's
directors' and officers' liability policy. The Merger Agreement provides that in
no event shall the Company be required to expend in any one year an amount in
excess of 200% of the annual
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premiums currently paid by the Company for such insurance and that if the annual
premiums of such insurance coverage exceed that amount, the Company shall be
obligated to obtain a policy with the greatest coverage available for a cost not
exceeding such amount.
In the Merger Agreement, Clark has agreed, from and after the date of
purchase of Shares pursuant to the Offer, to indemnify all Indemnified Parties
to the fullest extent permitted by applicable law, including, subject to certain
limitations, reasonable legal and other expenses, with respect to all acts and
omissions arising out of such individuals' services as officers, directors,
employees or agents of the Company or any of its subsidiaries, occurring prior
to the Effective Time including, without limitation, the transactions
contemplated by the Merger Agreement. If such indemnity will not be available
with respect to any Indemnified Party, then the Company and the Indemnified
Party shall contribute to the amount payable in such proportion as is
appropriate to reflect relative faults and benefits.
Compensation and Benefits. Pursuant to the Merger Agreement, Clark has
agreed that, during the period commencing at the Effective Time and ending on
the second anniversary thereof, the employees of the Company and its
subsidiaries will continue to be provided with employee benefit plans (other
than stock option, employee stock ownership or other plans involving the
potential issuance of securities of the Company or of Clark) which in the
aggregate are substantially comparable to those currently provided by the
Company and its subsidiaries to such employees. Clark will honor employee (or
former employee) benefit obligations and contractual rights existing as of the
Effective Time and all employment, incentive and deferred compensation or
severance agreements, plans or policies adopted by the Board of Directors of the
Company (or any committee thereof) prior to the date of the Merger Agreement in
accordance with their terms other than stock option, employee stock ownership or
other plans involving the potential issuance of securities of the Company or of
Clark.
Options. Pursuant to the Merger Agreement, Clark and, prior to the
Effective Time, the Board of Directors of the Company (or, if appropriate, any
committee thereof) will adopt appropriate resolutions and take all other actions
necessary to provide for the cancellation, effective at the Effective Time of
all the outstanding stock options to purchase Common Stock (the "Options")
heretofore granted under any stock option plan of the Company (the "Stock
Plans"). Immediately prior to the Effective Time, (i) each Option, whether or
not then vested or exercisable, shall no longer be exercisable for the purchase
of shares of Common Stock but shall entitle each holder thereof, in cancellation
and settlement therefor, to payments in cash (subject to any applicable
withholding taxes, the "Cash Payment"), at the Effective Time, or as soon as
practicable thereafter, subject to certain considerations, equal to the product
of (x) the total number of shares of Common Stock subject to such Option,
whether or not then vested or exercisable, and (y) the excess of the Merger
Consideration over the exercise price per share of Common Stock subject to such
Option, each such Cash Payment to be paid to each holder of an outstanding
Option at the Effective Time and (ii) each share of Common Stock previously
issued in the form of grants of restricted stock or grants of contingent shares
shall fully vest in accordance with their respective terms. Any then outstanding
stock appreciation rights or limited stock appreciation rights shall be
cancelled as of immediately prior to the Effective Time without any payment
therefor. As provided herein, the Stock Plans and any other plan, program or
arrangement providing for the issuance or grant of any other interest in respect
of the capital stock of the Company or any subsidiary shall terminate as of the
Effective Time. The Company will take all steps to ensure that neither the
Company nor any of its subsidiaries is or will be bound by any Options, other
options, warrants, rights or agreements which would entitle any Person, other
than Clark or its affiliates, to own any capital stock of the Company or any of
its subsidiaries or to receive any payment in respect thereof. The Company will
use its best efforts to obtain all necessary consents to ensure that after the
Effective Time, the only rights of the holders of Options to purchase shares of
Common Stock in respect of such Options will be to receive the Cash Payment in
cancellation and settlement thereof.
Representations and Warranties. In the Merger Agreement, the Company has
made customary representations and warranties to Clark and the Purchaser with
respect to, among other things, its organization, capitalization, financial
statements, public filings, labor relations, conduct of business, employee
benefit plans, insurance, compliance with laws, litigation, tax matters,
property, consent and approvals, opinions of financial
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advisors, undisclosed liabilities and the absence of certain changes with
respect to the Company since September 25, 1994.
Confidentiality. The Merger Agreement provides that the information
obtained by Clark and the Purchaser pursuant to the Merger Agreement will be
subject to the Confidentiality Agreement, dated January 23, 1995, between the
Company and Clark pursuant to which Clark has agreed, among other things, to
keep confidential certain non-public confidential or proprietary information of
the Company furnished to Clark by or on behalf of the Company.
Conditions to the Merger. Pursuant to the Merger Agreement, the respective
obligation of each party to effect the Merger is subject to the satisfaction, at
or prior to the Effective Time, of the following conditions: (i) to the extent
required by applicable law, the Merger Agreement and the Merger shall have been
approved and adopted by holders of a majority of the shares of Common Stock of
the Company in accordance with applicable law (if required by applicable law)
and the Company's Restated Certificate of Incorporation and By-Laws; (ii) any
waiting period (and any extension thereof) under the HSR Act applicable to the
Merger shall have expired or been terminated; (iii) no preliminary or permanent
injunction or other order shall have been issued by any court or by any
governmental or regulatory agency, body or authority which prohibits the
consummation of the Offer or the Merger and the transactions contemplated by the
Merger Agreement and which is in effect at the Effective Time, provided,
however, that, in the case of a decree, injunction or other order, each of the
parties shall have used reasonable efforts to prevent the entry of any such
decree, injunction or other order and to appeal as promptly as possible any
decree, injunction or other order that may be entered; (iv) no statute, rule,
regulation, executive order, decree or order of any kind shall have been
enacted, entered, promulgated or enforced by any court or governmental authority
which prohibits the consummation of the Offer or the Merger or has the effect of
making the purchase of the Shares illegal; and (v) the Purchaser shall have
accepted for payment and paid for the Shares tendered pursuant to the Offer. The
obligations of Clark and the Purchaser to effect the Merger are subject to the
satisfaction or waiver of the condition that the Company shall have terminated
the Company's Employee Stock Ownership Plan. The obligation of the Company to
effect the Merger is subject to the satisfaction or waiver of the condition that
each of Clark and the Purchaser shall have performed in all material respects
all obligations and agreements and complied in all material respects with all
covenants and conditions required to be performed or complied with by them in
connection with the appointment or election of the Purchaser's designees to the
Company's Board of Directors upon the acceptance for payment, and payment by the
Purchaser for more than 50% of the outstanding Shares.
Termination; Fees. The Merger Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval by the stockholders of
the Company, (a) by mutual consent of the Company, on the one hand, and of Clark
and the Purchaser, on the other hand; (b) by either Clark, on the one hand, or
the Company, on the other hand, if any governmental or regulatory agency shall
have issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the acceptance for payment of,
or payment for, Shares pursuant to the Offer or the Merger and such order,
decree or ruling or other action shall have become final and nonappealable; (c)
by Clark, on the one hand, or the Company, on the other hand, if the Effective
Time shall not have occurred within eight months after commencement of the Offer
unless the Effective Time shall not have occurred because of a material breach
of any representation, warranty, obligation, covenant, agreement or condition
set forth in the Merger Agreement on the part of the party seeking to terminate
the Merger Agreement; (d) by Clark, on the one hand, or the Company, on the
other hand, if the Offer is terminated or expires in accordance with its terms
without the Purchaser having purchased any Shares thereunder due to a failure to
satisfy any of the conditions described in Section 14, unless such termination
or expiration has been caused by or results from the failure of the party
seeking to terminate the Merger Agreement to perform in any material respect any
of its respective covenants or agreements contained in the Merger Agreement; (e)
by either Clark, on the one hand, or the Company, on the other hand, if the
Board of Directors of the Company, in its good faith reasonable judgment, based
upon the advice of its financial and legal advisors, determines that an
Acquisition Proposal made by a third party is more favorable to the Company and
its stockholders than the Offer and the Board of Directors believes (and has
been advised by counsel) that a failure to terminate the Merger Agreement and
enter into an agreement to effect such other proposal would constitute a breach
of its fiduciary duties; provided, however, the Company
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may not terminate the Merger Agreement for such reason unless the Company has
notified Clark and the Purchaser in writing promptly after receipt thereof, of
the receipt of any such Acquisition Proposal and following such notification the
Company has fully cooperated with Clark, including without limitation, informing
Clark of the terms and conditions of such Acquisition Proposal (and any
modification thereto), and the identity of the party making such Acquisition
Proposal, with the intent of enabling the parties to the Merger Agreement to
agree to a modification of the terms and conditions of the Merger Agreement so
that the Offer and the Merger may be effected and prior to such termination
Clark has received the amount of $7,250,000 by wire transfer in same day funds;
and (f) prior to the consummation of the Offer, by the Company, if (i) any of
the representations and warranties of Clark or the Purchaser contained in the
Merger Agreement were untrue or incorrect in any material respect when made or
have since become, and at the time of termination remain, incorrect in any
material respect, or (ii) Clark or the Purchaser shall have breached or failed
to comply in any material respect with any of their respective obligations under
the Merger Agreement, including, without limitation, their obligation to
commence the Offer within the time period required by the Merger Agreement.
If the Merger Agreement is terminated by Clark (i) as a result of a
material breach of a covenant by the Company, (ii) because the Board of
Directors of the Company shall have withdrawn, modified or amended in any
respect adverse to Clark its recommendation that the Company's stockholders
accept the Offer or (iii) because the Company shall have determined to enter
into an agreement with another party providing for a merger or other business
combination with such other party or for such other party's acquisition of a
material amount of the Company's capital stock or assets, then the Company will
be obligated to pay to Clark in same day funds, $7,250,000.
STOCK TENDER AGREEMENT. The following is a summary of the material terms
of the Stock Tender Agreement. This summary is qualified in its entirety by
reference to the Stock Tender Agreement which is incorporated herein by
reference and a copy of which has been filed with the Commission as an exhibit
to the Schedule 14D-1. The Stock Tender Agreement may be examined and copies may
be obtained at the place and in the manner as set forth in Section 7 of this
Offer to Purchase.
After the execution of the Merger Agreement, the Purchaser and Stock Tender
Parties entered into the Stock Tender Agreement. Pursuant to such Agreement, so
long as the Board of Directors of the Company has not withdrawn its
recommendation of the Offer in accordance with the Merger Agreement, the Stock
Tender Parties will validly tender (and not thereafter withdraw) the Shares
owned by them pursuant to and in accordance with the terms of the Offer. As of
February 6, 1995, the Stock Tender Parties owned a total of 2,916,329 Shares,
representing 28.6% of the outstanding Shares on a fully diluted basis.
In connection with the Stock Tender Agreement, the Stock Tender Parties
have made certain customary representations, warranties and covenants, including
with respect to (i) ownership of the Shares, (ii) the Stock Tender Parties'
authority to enter into and perform their obligations under the Stock Tender
Agreement, (iii) the ability of the Stock Tender Parties to enter into the Stock
Tender Agreement without violating other agreements to which they are party,
(iv) the absence of liens and encumbrances on and in respect of the Stock Tender
Parties' Shares and (v) restrictions on the transfer of the Stock Tender
Parties' Shares.
12. DIVIDENDS AND DISTRIBUTIONS. As described above, the Merger Agreement
provides that, prior to the Effective Time, the Company and each of its
subsidiaries will not declare, pay, set aside or make any dividend or other
distribution or payment with respect to, or split, combine, redeem or reclassify
any shares of its capital stock.
If, on or after the date of the Merger Agreement, the Company should (a)
split, combine, redeem or reclassify any shares of its capital stock, (b)
purchase or acquire, or offer to purchase or acquire, any shares of its capital
stock or (c) issue or sell any shares of its capital stock (other than in
connection with the exercise of the Options outstanding on the date of the
Merger Agreement), or any of its other securities, or issue any securities
convertible into, or rights, warrants or options to purchase or subscribe to, or
enter into any
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arrangement or contract with respect to the issuance or sale of any shares of
its capital stock or any of its other securities, or make any other changes in
its capital structure, then subject to the provisions of Section 14 below,
Purchaser, in its sole discretion, may make such adjustments as it deems
appropriate in the Offer Price and other terms of the Offer, including, without
limitation, the number or type of securities offered to be purchased.
If, on or after the date of the Merger Agreement, the Company should
declare, pay, set aside or make any cash dividend or make other distributions or
payments with respect to any shares of its capital stock, or issue with respect
to any shares of its capital stock any additional shares, shares of any other
class of capital stock, other securities or any securities convertible into, or
rights, warrants or options, conditional or otherwise, to acquire, any of the
foregoing, payable or distributable to stockholders of record on a date prior to
the transfer of the Shares purchased pursuant to the Offer to the Purchaser on
the Company's stock transfer records, then, subject to the provisions of Section
14 below, (a) the Offer Price may, in the sole discretion of the Purchaser, be
reduced by the amount of any such cash dividend or cash distribution and (b) the
whole of any such noncash dividend, distribution or issuance to be received by
the tendering stockholders will (i) be received and held by the tendering
stockholders for the account of the Purchaser and will be required to be
promptly remitted and transferred by each tendering stockholder to the
Depositary for the account of the Purchaser, accompanied by appropriate
documentation of transfer, or (ii) at the direction of the Purchaser, be
exercised for the benefit of the Purchaser, in which case the proceeds of each
exercise will promptly be remitted to the Purchaser. Pending such remittance and
subject to applicable law, the Purchaser will be entitled to all rights and
privileges as owner of any such noncash dividend, distribution, issuance or
proceeds and may withhold the entire Offer Price or deduct from the Offer Price
the amount or value thereof, as determined by the Purchaser in its sole
discretion.
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the preceding paragraphs and nothing
herein shall constitute a waiver by the Purchaser or Clark of any of its rights
under the Merger Agreement or a limitation of remedies available to the
Purchaser or Clark for any breach of the Merger Agreement, including termination
thereof.
13. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; EXCHANGE LISTING AND
EXCHANGE ACT REGISTRATION.
The purchase of Shares pursuant to the Offer will reduce the number of
Shares that might otherwise trade publicly and could reduce the number of
holders of Shares, which 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 standards for continued listing on the Nasdaq National
Market subsequent to the purchase of Shares pursuant to the Offer. Published
guidelines indicate that an authorized security shall be subject to suspension
or termination of authorization for listing if, among other things, (a) the
total number of shares publicly held (excluding shares held directly or
indirectly by any officer or director of the issuer and by any person who is the
beneficial owner of more than 10% of the class) is less than 100,000 or (b) the
total number of persons (including beneficial owners) holding the security is
less than 300. In such event, quotations for the Shares might still be available
from other sources. The extent of the public market for the Shares and the
availability of such other quotations would, however, depend upon such factors
as the number of stockholders 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.
The Shares are currently "margin securities," as such term is defined 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 such securities. Depending upon factors
similar to those described above regarding listing and market quotations,
following the Offer it is possible that the Shares might no longer constitute
"margin securities" for purposes of the margin regulations of the Federal
Reserve Board, in which event such Shares could no longer be used as collateral
for loans made by brokers.
The Shares are currently registered under the Exchange Act. Such
registration may be terminated upon application of the Company to the Commission
if the Shares are not listed on a national securities exchange
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and there are fewer than 300 record holders of the Shares. According to the
Company's Proxy Statement dated December 16, 1994, there were 476 stockholders
of record at December 5, 1994. The termination of registration of the Shares
under the Exchange Act would substantially reduce the information required to be
furnished by the Company to holders of Shares and to the Commission 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 pursuant to Section 14(a),
and the requirements of Rule 13e-3 under the Exchange Act with respect to "going
private" transactions, no longer applicable to the Shares. In addition,
"affiliates" of the Company and persons holding "restricted securities" of the
Company may be deprived of the ability to dispose of such securities pursuant to
Rule 144 promulgated under the Securities Act. If registration of the Shares
under the Exchange Act were terminated, the Shares would no longer be "margin
securities" or eligible for listing on the Nasdaq National Market. It is the
present intention of the Purchaser to cause the Company to make an application
for termination of registration of the Shares as soon as possible after
consummation of the Offer.
14. CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the
Offer, and in addition to (and not in limitation of) the Purchaser's rights to
extend and amend the Offer at any time in its sole discretion (subject to the
provisions of the Merger Agreement), the Purchaser shall not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, 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 (i) any applicable waiting period under the HSR Act has not expired
or terminated, (ii) the Minimum Condition has not been satisfied or (iii) at any
time on or after February 3, 1995 and before the time of payment for any such
Shares, any of the following events shall occur or shall be determined by the
Purchaser to have occurred:
(a) (x) there shall be threatened, instituted or pending any action or
proceeding by any government or governmental authority or agency, domestic
or foreign, (i) challenging or seeking to, or which could reasonably be
expected to make illegal, impede, delay or otherwise directly or indirectly
restrain, prohibit or make materially more costly the Offer or the Merger
or seeking to obtain material damages, (ii) seeking to prohibit or
materially limit the ownership or operation by Clark or the Purchaser of
all or any material portion of the business or assets of the Company or any
of its subsidiaries taken as a whole or to compel Clark or the Purchaser to
dispose of or hold separately all or any material portion of the business
or assets of Clark or the Purchaser or the Company or any of its
subsidiaries taken as a whole, or seeking to impose any material limitation
on the ability of Clark or the Purchaser to conduct its business or own
such assets, (iii) seeking to impose material limitations on the ability of
Clark or the Purchaser effectively to exercise full rights of ownership of
the Shares, including, without limitation, the right to vote any Shares
acquired or owned by the Purchaser or Clark on all matters properly
presented to the Company's stockholders, (iv) seeking to require
divestiture by Clark or the Purchaser of any Shares, or (v) otherwise
materially adversely affecting the Condition (as defined in the Merger
Agreement) of the Company and its subsidiaries taken as a whole; or (y) any
court shall have entered an order which is in effect and which (i) makes
illegal, impedes, delays or otherwise directly or indirectly restrains,
prohibits or makes materially more costly the Offer or the Merger, (ii)
prohibits or materially limits the ownership or operation by Clark or the
Purchaser of all or any material portion of the business or assets of the
Company or any of its subsidiaries taken as a whole or compels Clark or the
Purchaser to dispose of or hold separately all or any material portion of
the business or assets of Clark or the Purchaser or the Company or any of
its subsidiaries taken as a whole, or imposes any material limitation on
the ability of Clark or the Purchaser to conduct its business or own such
assets, (iii) imposes material limitations on the ability of Clark or the
Purchaser effectively to exercise full rights of ownership of the Shares,
including, without limitation, the right to vote any Shares acquired or
owned by the Purchaser or Clark on all matters properly presented to the
Company's stockholders, (iv) requires divestiture by Clark or the Purchaser
of any Shares, or (v) otherwise materially adversely affects the Condition
of the Company and its subsidiaries taken as a whole; provided, however,
that in the case of a preliminary injunction to the
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effect described in this subparagraph (y), the provisions of this
subparagraph (y) shall not be deemed to have been triggered until the
earlier of (X) the date on which such injunction becomes final or (Y) the
Company ceases its efforts to have such preliminary injunction dissolved;
(b) there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction enacted,
enforced, promulgated, amended, issued or deemed applicable to (i) Clark,
the Purchaser, the Company or any subsidiary of the Company or (ii) the
Offer or the Merger, by any legislative body, court, government or
governmental, administrative or regulatory authority or agency, domestic or
foreign, other than the routine application of the waiting period
provisions of the HSR Act to the Offer or to the Merger, which could
reasonably be expected to directly or indirectly, result in any of the
consequences referred to in clauses (i) through (v) of paragraph (a) (x)
above;
(c) any change shall have occurred or been threatened (or any
condition, event or development shall have occurred or been threatened
involving a prospective change), that is reasonably likely to have a
material adverse effect on the business, properties, assets, liabilities,
operations, results of operations, conditions (financial or otherwise) or
prospects of the Company and its subsidiaries;
(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 over-the-counter market, (ii) any decline in either the
Dow Jones Industrial Average or the Standard & Poor's Index of 400
Industrial Companies or in the New York Stock Exchange Composite Index in
excess of 20% measured from the close of business on the trading day next
preceding the date of the Merger Agreement, (iii) any material change in
United States or any other currency exchange rates or a suspension of, or
limitation on, the markets therefor, (iv) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States or (v) a commencement or escalation of a war or armed hostilities or
other national or international calamity directly or indirectly involving
the United States;
(e) all consents, registrations, approvals, permits, authorizations,
notices, reports or other filings required to be obtained or made by the
Company, Clark or the Purchaser with or from any governmental or regulatory
entity in connection with the execution, delivery and performance of the
Merger Agreement, the Offer and the consummation of the transactions
contemplated by the Merger Agreement shall not have been made or obtained
and such failure could reasonably be expected to have a material adverse
effect on the Condition of the Company and any of its subsidiaries, taken
as a whole or could be reasonably likely to prevent or materially delay
consummation of the transactions contemplated by the Merger Agreement;
(f) any representation or warranty made by the Company in the Merger
Agreement shall be untrue or incorrect in any material respect;
(g) there shall have been a breach by the Company of any of its
covenants or agreements in any material respect contained in the Merger
Agreement;
(h) the Company's Board of Directors shall have withdrawn, modified or
amended in any respect adverse to Clark or the Purchaser its recommendation
of the Offer or the Merger, or shall have resolved to do so; or
(i) the Merger Agreement shall have been terminated in accordance with
its terms;
which, in the reasonable judgment of the Purchaser, in any such case and
regardless of the circumstances giving rise to any such condition, makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions 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 sole discretion; provided, however, that without the consent of the
Company, the Purchaser may not waive the Minimum Condition. 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.
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15. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS.
General. Except as otherwise disclosed herein, based on a review of
publicly available information filed by the Company with the Commission, neither
the Purchaser nor Clark is aware of (i) any license or regulatory permit that
appears to be material to the business of the Company and its subsidiaries,
taken as a whole, that might be adversely affected by the acquisition of Shares
by the Purchaser pursuant to the Offer or the Merger or (ii) any approval or
other action by any governmental, administrative or regulatory agency or
authority, domestic or foreign, that would be required for the acquisition or
ownership of Shares by the Purchaser as contemplated herein. Should any such
approval or other action be required, the Purchaser currently contemplates that
such approval or action would be sought. While the Purchaser does not currently
intend to delay the acceptance for payment of Shares tendered pursuant to the
Offer pending the outcome of any such matter, there can be no assurance that any
such approval or action, if needed, would be obtained or would be obtained
without substantial conditions or that adverse consequences might not result to
the business of the Company, the Purchaser or Clark or that certain parts of the
businesses of the Company, the Purchaser or Clark might not have to be disposed
of in the event that such approvals were not obtained or any other actions were
not taken. The Purchaser's obligation under the Offer to accept for payment and
pay for Shares is subject to certain conditions. See Section 14.
State Takeover Laws. The Company is incorporated under the laws of the
State of Delaware. In general, Section 203 of Delaware Law prevents an
"interested stockholder" (generally a person who owns or has the right to
acquire 15% or more of a corporation's outstanding voting stock, or an affiliate
or associate thereof) from engaging in a "business combination" (defined to
include mergers and certain other transactions) with a Delaware corporation for
a period of three years following the date such person became an interested
stockholder unless, among other things, prior to such date the Board of
Directors of the corporation approved either the business combination or the
transaction in which the interested stockholder became an interested
stockholder. On February 2, 1995, prior to the execution of the Merger
Agreement, the Board of Directors of the Company, by unanimous vote of all
directors present at a meeting held on such date, (i) approved and adopted the
Merger Agreement and the transactions contemplated thereby, (ii) approved the
Merger Agreement and the Stock Tender Agreement and the transactions
contemplated thereby, as well as negotiations between Clark and the Purchaser
and the Stock Tender Parties with respect thereto, (iii) determined that the
Merger Agreement and the transactions contemplated thereby, including each of
the Offer and the Merger, is fair to and in the best interests of, the
stockholders of the Company and (iv) recommended that the stockholders of the
Company accept the Offer and approve and adopt the Merger Agreement and the
transactions contemplated thereby. Accordingly, Section 203 is inapplicable to
the Stock Tender Agreement, the Offer and the Merger.
A number of other states have adopted laws and regulations applicable to
attempts to acquire securities of corporations which are incorporated, or have
substantial assets, stockholders, principal executive offices or principal
places of business, or whose business operations otherwise have substantial
economic effects, in such states. In Edgar v. MITE Corp., the Supreme Court of
the United States invalidated on constitutional grounds the Illinois Business
Takeover Statute, which, as a matter of state securities law, made takeovers of
corporations meeting certain requirements more difficult. However, in 1987 in
CTS Corp. v. Dynamics Corp. of America, the Supreme Court held that the State of
Indiana may, as a matter of corporate law and, in particular, with respect to
those aspects of corporate law concerning corporate governance, constitutionally
disqualify a potential acquiror from voting on the affairs of a target
corporation without the prior approval of the remaining stockholders. The state
law before the Supreme Court was by its terms applicable only to corporations
that had a substantial number of stockholders in the state and were incorporated
there.
The Company, directly or through subsidiaries, conducts business in a
number of states throughout the United States, some of which have enacted
takeover laws. The Purchaser does not know whether any of these laws will, by
their terms, apply to the Offer or the Merger and has not complied with any such
laws. Should any person seek to apply any state takeover law, the Purchaser will
take such action as then appears desirable, which may include challenging the
validity or applicability of any such statute in appropriate court proceedings.
In the event it is asserted that one or more state takeover laws is applicable
to the Offer or the Merger, and an appropriate court does not determine that it
is inapplicable or invalid as applied to the Offer,
24
<PAGE> 27
the Purchaser might be required to file certain information with, or receive
approvals from, the relevant state authorities. In addition, if enjoined, the
Purchaser might be unable to accept for payment any Shares tendered pursuant to
the Offer, or be delayed in continuing or consummating the Offer, and the
Merger. In such case, the Purchaser may not be obligated to accept for payment
any Shares tendered. See Section 14.
Appraisal Rights. No appraisal rights are available in connection with the
Offer. Holders of Shares will be entitled to appraisal rights in connection with
the Merger if at the record date with respect to the Merger certain requirements
are satisfied.
Under Section 262 of the Delaware Law, appraisal rights are not available
for the shares of any class or series of stock which, at the record date fixed
to determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger, were either (i)
listed on a national securities exchange or designated as a national market
system security on an inter-dealer quotation system by the NASD or (ii) held of
record by more than 2,000 stockholders, unless the holders of such class or
series of stock are required by the terms of such agreement to accept for such
stock anything except (w) shares of stock of the corporation surviving or
resulting from such merger, (x) shares of stock of any other corporation which
at the effective date of the merger will be either listed on a national
securities exchange or designated as a national market system security on an
inter-dealer quotation system by the NASD or held of record by more than 2,000
stockholders, (y) cash in lieu of fractional shares of the corporations
described in clauses (w) and (x) or (z) any combination of the shares of stock
and cash in lieu of fractional shares described in clauses (w), (x) and (y).
Stockholders of the Company may have certain rights under Section 262 of the
Delaware Law to dissent and demand appraisal of, and payment in cash of the fair
value of, their Shares. Such rights, if the statutory procedures were complied
with, could lead to a judicial determination of the fair value (excluding any
element of value arising from the accomplishment or expectation of the Merger)
required to be paid in cash to such dissenting holders for their Shares. Any
such judicial determination of the fair value of Shares could be based upon
considerations other than, or in addition to, the price paid in the Offer and
the market value of the Shares, including asset values and the investment value
of the Shares. The value so determined could be more or less than the purchase
price per Share pursuant to the Offer or the consideration per Share to be paid
in the Merger.
The foregoing summary of the rights of objecting stockholders does not
purport to be a complete statement of the procedures to be followed by
stockholders desiring to exercise any available dissenters' rights. The
preservation and exercise of dissenters' rights require strict adherence to the
applicable provisions of the Delaware Law.
Antitrust. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission ("FTC"), certain mergers and
acquisitions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and certain waiting period requirements have been
satisfied. The acquisition of Shares by the Purchaser pursuant to the Offer is
subject to the HSR Act requirements.
Under the provisions of the HSR Act applicable to the purchase of Shares
pursuant to the Offer, such purchase may not be made until the expiration of a
15-calendar day waiting period following the required filing of a Notification
and Report Form under the HSR Act by Clark, which Clark submitted on February 7,
1995. The Company has advised Clark that it expects to file a Notification and
Report Form on February 9, 1995. Accordingly, the waiting period under the HSR
Act will expire at 11:59 P.M., New York City time, on February 22, 1995, unless
early termination of the waiting period is granted or Clark receives a request
for additional information of documentary material prior thereto. Pursuant to
the HSR Act, Clark has requested, and the Company intends to request early
termination of the waiting period applicable to the Offer. There can be no
assurances, however, that the 15-day HSR Act waiting period will be terminated
early. If either the FTC or the Antitrust Division were to request additional
information or documentary material from Clark prior to the expiration of the
15-day waiting period, the waiting period would be extended and would expire at
11:59 P.M., New York City time, on the tenth calendar day after the date of
substantial compliance by the Clark with such request. Thereafter, the waiting
period could be extended only by court order or by consent of Clark. If the
acquisition of Shares is delayed pursuant to a request by the FTC or the
Antitrust Division for
25
<PAGE> 28
additional information or documentary material pursuant to the HSR Act, the
purchase of and payment for Shares pursuant to the Offer will be deferred until
10 days after the request is substantially complied with unless the waiting
period is terminated sooner by the FTC or the Antitrust Division. See Section 2.
Only one extension of such waiting period pursuant to a request for additional
information is authorized by the rules promulgated under the HSR Act, except by
court order. 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 to
the Company from the Antitrust Division or the FTC for additional information or
documentary material will extend the waiting period.
No separate HSR Act requirements with respect to the Merger, the Merger
Agreement, and the Stock Tender Agreement will apply if the 15-day waiting
period relating to the Offer (as described above) has expired or been
terminated. However, if the Offer is withdrawn or if the filing relating to the
Offer is withdrawn prior to the expiration or termination of the 15-day waiting
period relating to the Offer, the Merger may not be consummated until 30
calendar days after receipt by the Antitrust Division and the FTC of the
Notification and Report Forms of both Clark and the Company unless the 30-day
period is earlier terminated by the Antitrust Division and the FTC. Within such
30-day period, the Antitrust Division or the FTC may request additional
information or documentary materials from Clark and/or the Company, in which
event, the acquisition of Shares pursuant to the Merger may not be consummated
until 20 days after such requests are substantially complied with by both Clark
and the Company. Thereafter, the waiting periods may be extended only by court
order or by consent.
The Antitrust Division and the FTC 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 Purchaser's
purchase of Shares, either the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of Shares pursuant to the
Offer or seeking divestiture of Shares acquired by the Purchaser or divestiture
of substantial assets of Clark, the Company or any of their respective
subsidiaries. Private parties may also bring legal action under the antitrust
laws under certain circumstances. Based upon an examination of publicly
available information relating to the businesses in which Clark and its
subsidiaries and the Company and its subsidiaries are involved, Clark and the
Purchaser believe that the Offer will not violate the antitrust laws.
Nevertheless, there can be no assurance that a challenge to the Offer on
antitrust grounds will not be made or, if a challenge is made, what the result
will be.
16. FEES AND EXPENSES. Except as set forth below, neither Clark nor the
Purchaser will pay any fees or commissions to any broker, dealer or other person
for soliciting tenders of Shares pursuant to the Offer.
CS First Boston is acting as the Dealer Manager in connection with the
Offer and has provided, and is providing, certain financial advisory services to
Clark in connection with its effort to acquire the Company. As compensation for
CS First Boston's services as financial advisor, Clark paid CS First Boston an
initial advisory fee of $125,000 (creditable against any transaction fee) and
will pay CS First Boston a transaction fee of $1,750,000 upon the consummation
of the Offer. In addition, Clark has agreed to reimburse CS First Boston for all
out-of-pocket expenses, including attorneys' fees, incurred by CS First Boston,
in connection with its role as financial advisor and Dealer Manager, and Clark
and the Purchaser have agreed to indemnify CS First Boston and certain related
persons against certain liabilities and expenses in connection with its role as
financial advisor and Dealer Manager. CS First Boston has rendered from time to
time, and continues to render, various investment banking services to Clark and
its affiliates, for which it is paid customary fees. CS First Boston has also
separately performed certain investment banking services for the Company, and
has received customary fees for such services. Further, Merchant Investments,
Inc., an affiliate of CS First Boston, owns approximately 3.4% of the Shares and
is a party to the Stock Tender Agreement.
In addition, the Purchaser has retained Trust Company Bank as the
Depositary and D.F. King & Co., Inc. as the Information Agent. The Depositary
has not been retained to make solicitations or recommendations in its role as
Depositary. The Depositary and the Information Agent each will receive
reasonable and customary compensation for its services, will be reimbursed for
certain reasonable out-of-pocket expenses and
26
<PAGE> 29
will be indemnified against certain liabilities and expenses in connection
therewith, including certain liabilities under the federal securities laws.
Brokers, dealers, commercial banks and trust companies will be reimbursed by the
Purchaser for customary mailing and handling expenses incurred by them in
forwarding offering 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 Clark 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.
Clark and the Purchaser have filed with the Commission the Schedule 14D-1,
together with exhibits, pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. The Schedule 14D-1
and any amendments thereto, including exhibits, may be inspected at, and copies
may be obtained from, the same places and in the same manner as set forth in
Section 7 (except that they will not be available at the regional offices of the
Commission).
CLARK ACQUISITION SUB, INC.
February 8, 1995
27
<PAGE> 30
SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS OF PARENT AND THE PURCHASER
1. Directors and Executive Officers of Clark. Set forth below is the name,
current business address, citizenship and the present principal occupation or
employment and material occupations, positions, offices or employments for the
past five years of each director and executive officer of Clark. Unless
otherwise indicated, each person identified below is employed by Clark. The
principal address of Clark and, unless otherwise indicated below, the current
business address for each executive officer listed below is 100 North Michigan
Street, P.O. Box 7008, South Bend, Indiana 46634. Each such person is a citizen
of the United States. Directors are identified by an asterisk.
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---------------- --------------------------------------------------
<S> <C>
Leo J. McKernan*................... Chairman of the Board of Directors, President and Chief
Executive Officer
Frank M. Sims*..................... Senior Vice President - Administration and External
Relations
Paul R. Bowles..................... Vice President - Corporate Development
Thomas L. Doepker.................. Vice President and Treasurer
William N. Harper.................. Vice President and Controller
Bernard D. Henely.................. Vice President, General Counsel and Secretary
David D. Hunter.................... Vice President - President of Blaw-Knox Construction
Blaw-Knox Construction Equipment Equipment Corporation
Corporation
750 Broadway Ave. East
Mattoon, Illinois 61938-4600
James D. Kertz..................... Vice President - President of Melroe Company
Melroe Company
112 North University Dr.
P.O. Box 6019
Fargo, ND 58102-6019
John J. Reynolds................... Vice President - President of Clark-Hurth Components
Clark-Hurth Components Company Company
1293 Glenway Dr.
Statesville, NC 28677
James C. Chapman*.................. Director; Chairman, President, Chief Executive Officer
Outboard Marine Corporation and Director, Outboard Marine Corporation, Waukegan,
100 Sea-Horse Drive Illinois-a manufacturer and marketer of marine power
Waukegen, Illinois 60085-2195 products, boats and accessories; prior to January 1993,
President and Chief Executive Officer, Outboard Marine
Corporation.
Donald N. Frey*.................... Director; Professor, Department of Industrial
Northwestern University Engineering and Management Sciences, Northwestern
Department of Industrial University, Evanston, Illinois.
Engineering
and Management Sciences
Room 1017 MLSB
2225 North Campus Drive
Evanston, IL 60208-3119
</TABLE>
I-1
<PAGE> 31
<TABLE>
<CAPTION>
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ----------------------------------- --------------------------------------------------------
<S> <C>
James A.D. Geier*.................. Director; Chairman - Executive Committee and Director,
455 Delta Avenue Cincinnati Milacron Inc., Cincinnati, Ohio - a
Suite 108 manufacturer and supplier of process equipment, systems,
Cincinnati, Ohio 45226 and related accessories; Retired Chairman and Chief
Executive Officer, Cincinnati Milacron Inc.
[5~Gaynor N. Kelley*.................. Director; Chairman, Chief Executive Officer and
The Perkin-Elmer Corporation Director, The Perkin-Elmer Corporation, Norwalk,
761 Main Avenue Connecticut - a manufacturer of analytical instruments;
Norwalk, Connecticut 06859-0001 prior to December 1990, President, Chief Operating
Officer and Director, Perkin-Elmer Corporation.
Ray B. Mundt*...................... Director; Chairman and Director, Alco Standard
Alco Standard Corporation Corporation, Valley Forge, Pennsylvania - a diversified
P.O. box 834 company in the fields of paper distribution and
Valley Forge, Pennsylvania converting and office products distribution; prior to
19482-0834 August 1993, Chairman, Chief Executive Officer and
Director, Alco Standard Corporation.
</TABLE>
Each of the executive officers listed above has served Clark or its
subsidiaries in various executive capacities for the past five years, except for
(1) John J. Reynolds who, prior to April 1991, was President of Cherry-Burrell
Corporation, a manufacturer of automatic packaging and processing equipment and
(2) David D. Hunter who, prior to April 1992 was Executive Vice President of
Talley Industries Inc.
2. Directors and Executive Officers of the Purchaser. Set forth below is
the name and position of each director and officer of the Purchaser. The
principal occupation or employment and citizenship of each such person is set
forth in Part 1 of this Schedule I, except for Mr. Moran for whom such
information is set forth below. Each person identified below is employed by the
Purchaser and has held such position since the formation of the Purchaser in
February 2, 1995. The principal address of the Purchaser and the current
business address for each individual listed below is 100 North Michigan Street,
P.O. Box 7008, South Bend, Indiana 46634. Directors are identified by an
asterisk.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ----------------------------------- --------------------------------------------------------
<S> <C>
Paul R. Bowles..................... President; Vice President -- Corporate Development of
Clark Equipment Company
William N. Harper.................. Vice President and Treasurer; Vice President and
Controller of Clark Equipment Company
Bernard D. Henely*................. Director and Vice President and Secretary; Vice
President, General Counsel and Secretary of Clark
Equipment Company
John J. Moran, Jr.*................ Director and Vice President and Assistant Secretary;
Assistant Secretary of Clark Equipment Company (U.S.
citizen)
</TABLE>
I-2
<PAGE> 32
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 stockholder of the
Company or his broker, dealer, commercial bank, trust company or other nominee
to the Depositary as follows:
The Depositary for the Offer is:
Trust Company Bank
<TABLE>
<S> <C> <C>
By Mail: By Overnight Courier: By Hand:
P.O. Box 4625 58 Edgewood Avenue 58 Edgewood Avenue
Atlanta, Georgia 30302 Room 225 Room 225
Atlanta, Georgia 30303 Atlanta, Georgia 30303
</TABLE>
By Facsimile:
(404) 382-3875
Confirm by telephone:
(800) 568-3476
Any questions or requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery or
other tender offer materials may be directed to the Dealer Manager at the
telephone number and address listed 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:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
(212) 269-5550 (Call Collect)
(800) 758-7358 (Call Toll Free)
The Dealer Manager for the Offer is:
CS First Boston
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
(212) 909-2000 (Call Collect)
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLUB CAR, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED FEBRUARY 8, 1995
BY
CLARK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
CLARK EQUIPMENT COMPANY
------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON WEDNESDAY, MARCH 8, 1995,
UNLESS THE OFFER IS EXTENDED.
------------------------------------------------------------------
<TABLE>
<S> <C> <C>
The Depositary for the Offer
is:
TRUST COMPANY BANK
Overnight Delivery:
58 Edgewood Avenue
Room 225
Atlanta, Georgia 30303
By facsimile Transmission
By Mail: (for Eligible Institutions By Hand:
only):
P.O. Box 4625 (404) 382-3875 58 Edgewood Avenue
Atlanta, Georgia 30302 Room 225
Atlanta, Georgia 30303
Confirm by telephone:
(800) 568-3476
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE COPY NUMBER OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
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 stockholders if
certificates for Shares (as defined below) are to be forwarded herewith or,
unless an Agent's Message (as defined in the Offer to Purchase) is utilized, if
tenders of Shares are to be made by book-entry transfer to the account
maintained by the Depositary at The Depository Trust Company ("DTC"), the
Midwest Securities Trust Company ("MSTC") or the Philadelphia Depository Trust
Company ("PDTC") (DTC, MSTC and PDTC, collectively, the "Depository
Institutions"), pursuant to the
<PAGE> 2
procedures set forth in Section 3 of the Offer to Purchase. Stockholders who
tender Shares by book-entry transfer are referred to herein as "Book-Entry
Stockholders" and other stockholders are referred to herein as "Certificate
Stockholders." Stockholders whose certificates are not immediately available or
who cannot deliver their certificates and all other documents required hereby to
the Depositary on or prior to the Expiration Date (as defined in the Offer to
Purchase), or who cannot comply with the book-entry transfer procedures on a
timely basis, may nevertheless tender their Shares according to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. See
Instruction 2. Delivery of documents to a Depository Institution does not
constitute delivery to the Depositary for this Offer (as defined herein).
<PAGE> 3
/ / CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO THE
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A DEPOSITORY INSTITUTION AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution
--------------------------------------------------------------------------
Check Box of Applicable Depository Institution
/ / DTC
/ / MSTC
/ / PDTC (check one)
Account Number
--------------------------------------------------------------------------
Transaction Code Number
--------------------------------------------------------------------------
/ / CHECK HERE IF 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)
--------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
--------------------------------------------------------------------------
Name of Institution which Guaranteed Delivery
--------------------------------------------------------------------------
If Delivered by Book-Entry Transfer, Check Box of Applicable Depository
Institution:
/ / DTC
/ / MSTC
/ / PDTC (check one)
Account Number (if Delivered by Book-Entry Transfer)
--------------------------------------------------------------------------
Transaction Code Number
--------------------------------------------------------------------------
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- ------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN IF BLANK EXACTLY AS NAME(S) SHARES TENDERED
APPEAR(S) ON RECEIPT CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
- ------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF NUMBER OF
CERTIFICATE SHARES EVIDENCED 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 evidenced by any certificate(s)
delivered to the Depositary are being tendered. See Instruction 4.
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
The undersigned hereby tenders to Clark Acquisition Sub, Inc., a Delaware
corporation (the "Purchaser"), a wholly owned subsidiary of Clark Equipment
Company, a Delaware corporation ("Clark"), the above-described shares of Common
Stock, par value $.01 per share (the "Common Stock"), of Club Car, Inc., a
Delaware corporation (the "Company"), and the associated Preferred Stock
Purchase Rights (the "Rights" and together with the Common Stock, the "Shares")
issued pursuant to the Rights Agreement, dated as of September 24, 1993, as
amended, between the Company and Trust Company Bank, as Agent (the "Rights
Agreement"), pursuant to the Purchaser's Offer to Purchase all of the
outstanding Shares at a price of $25.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated February 8, 1995 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which together with the Offer
to Purchase constitutes the "Offer"). The undersigned understands that the
Purchaser reserves the right to transfer or assign, from time to time, in whole
or in part, to one or more of its affiliates, the right to purchase the Shares
tendered herewith.
Upon the terms and conditions of the Offer, subject to, and effective upon,
acceptance for payment of and payment for the Shares tendered herewith in
accordance with the terms of the Offer, the undersigned hereby sells, assigns
and transfers to, or upon the order of, the Purchaser, all right, title and
interest in and to all of the Shares that are being tendered hereby and any and
all cash dividends, distributions, rights, other Shares and other securities
issued or issuable in respect thereof on or after February 3, 1995
(collectively, "Distributions"), and appoints the Depositary the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares (and
any Distributions) with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) to (a) deliver such
Share Certificates (as defined herein) (and any Distributions) or transfer
ownership of such Shares (and any Distributions) on the account books maintained
by a Depository Institution, together in either such case with all accompanying
evidences of transfer and authenticity, to or upon the order of the Purchaser,
(b) present such Shares (and any Distributions) for transfer on the books of the
Company and (c) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares (and any Distributions), all in accordance
with the terms and the conditions of the Offer.
The undersigned hereby irrevocably appoints the designees of the Purchaser,
and each of them, the attorneys-in-fact and proxies of the undersigned, each
with full power of substitution, to vote in such manner as each such attorney
and proxy or any substitute thereof shall deem proper in the sole discretion of
such attorney-in-fact and proxy or such substitute, and otherwise act (including
pursuant to written consent) with respect to all of the Shares tendered hereby
(and any Distributions) which have been accepted for payment by the Purchaser
prior to the time of such vote or action, which the undersigned is entitled to
vote at any meeting of stockholders (whether annual or special and whether or
not an adjourned meeting) of the Company or otherwise. This proxy and power of
attorney is coupled with an interest in the Shares and is irrevocable and is
granted in consideration of, and is effective upon, the acceptance for payment
of such Shares (and any Distributions) by the Purchaser in accordance with the
terms of the Offer. Such acceptance for payment shall revoke any other proxy
granted by the undersigned at any time with respect to such Shares (and any
Distributions) and no subsequent proxies will be given (or, if given, will not
be deemed effective) with respect thereto by the undersigned. The undersigned
understands that in order for Shares to be deemed validly tendered, immediately
upon the Purchaser's acceptance of such Shares (and any Distributions) for
payment the Purchaser or its designee must be able to exercise full voting
rights with respect to such Shares (and any Distributions).
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares (and
any Distributions) tendered hereby and that when the same are accepted for
payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances, and the same will not be subject to any adverse claim. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Depositary or the Purchaser to be necessary or desirable to
complete the sale, assignment, and transfer of the Shares (and any
Distributions) tendered hereby. In addition, the undersigned shall promptly
remit and transfer to the Depositary for the account of the Purchaser any and
all Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer; and, pending such remittance or
appropriate assurance thereof, the Purchaser shall be entitled to all rights and
privileges as owner of any such Distributions and may withhold the entire
purchase price or deduct from the purchase price the amount or value thereof, as
determined by the Purchaser in its sole discretion.
<PAGE> 6
All authority herein conferred or agreed to be conferred shall not be
affected by and shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned. Subject to
the withdrawal rights set forth in Section 4 of the Offer to Purchase, the
tender of Shares hereby made is irrevocable.
The undersigned understands that tenders of Shares pursuant to any of the
procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto and acceptance for payment of such Shares will constitute a
binding agreement between the undersigned and the Purchaser upon the terms and
subject to the conditions set forth in the Offer.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or not accepted for payment in the name(s) of the registered
holder(s) appearing under "Description of Shares Tendered." Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
not accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered." In the event that both the Special Delivery Instructions and the
Special Payment Instructions are completed, please issue the check for the
purchase price and/or issue any certificates for Shares not so tendered or
accepted for payment in the name of, and deliver said check and/or return such
certificates to, the person or persons so indicated. 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 thereof if the
Purchaser does not accept for payment any of the Shares so tendered.
<PAGE> 7
- ------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
purchased and/or the check for the purchase price of Shares purchased are to
be issued in the name of someone other than the undersigned.
Issue check and/or certificate(s) to:
Name:
------------------------------------------------------
Please Type or Print
Address:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
(Include Zip Code)
------------------------------------------------------
(Tax Identification or Social Security No.)
(See Substitute Form W-9 on Reverse Side)
------------------------------------------------------
------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
purchased and/or the check for the purchase price of Shares purchased are to
be sent to someone other than the undersigned, or to the undersigned at an
address other than that shown above.
Mail check and/or certificate(s) to:
Name:
------------------------------------------------------
Please Type or Print
Address:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
(Include Zip Code)
------------------------------------------------------
(Tax Identification or Social Security No.)
(See Substitute Form W-9 on Reverse Side)
- -------------------------------------------------------
<PAGE> 8
- ------------------------------------------------------------------------------
SHAREHOLDER(S) SIGN HERE
(See Instructions 1 and 6)
(Please Complete Substitute Form W-9 Contained Herein)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SIGNATURE(S) OF OWNER(S)
Must be signed by registered owner(s) exactly as name(s) appear(s) on
certificate(s) or on a security position listing or by person(s) authorized to
become registered owner(s) by certificate(s) and documents transmitted with this
Letter of Transmittal. If signature is by attorney-in-fact, executor,
administrator, trustee, guardian, officer of a corporation or another acting in
a fiduciary or representative capacity, please set forth the full title. See
Instruction 6.
PLEASE PRINT OR TYPE
Dated:
- --------------------------------------------------------------------------, 1995
Name(s)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (Full Title)
- --------------------------------------------------------------------------------
Area Code and
Telephone Number
- --------------------------------------------------------------------------------
Tax Identification or
Social Security Number(s)
- --------------------------------------------------------------------------------
MEDALLION GUARANTEE OF SIGNATURE(S)
(see Instructions 1 and 6)
Authorized Signature
- --------------------------------------------------------------------------------
Name
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Title
- --------------------------------------------------------------------------------
Name of Firm
- --------------------------------------------------------------------------------
Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and
Telephone Number
- --------------------------------------------------------------------------------
Dated:
- --------------------------------------------------------------------------, 1995
- --------------------------------------------------------------------------------
<PAGE> 9
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 financial
institution (including most banks, savings and loan associations and brokerage
houses) which is a participant in the Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Program or the Stock
Exchange Medallion Program (an "Eligible Institution"). Signatures on this
Letter of Transmittal need not be guaranteed (a) if this Letter of Transmittal
is signed by the registered holder(s) of the Shares (which term, for purposes of
this document, shall include any participant in one of the Depository
Institutions whose name appears on a security position listing as the owner of
Shares) tendered herewith and such holder(s) have not completed the instruction
entitled "Special Payment Instructions" on this Letter of Transmittal or (b) if
such Shares are tendered for the account of an Eligible Institution. See
Instruction 5 of this Letter of Transmittal.
2. Delivery of Letter of Transmittal and Certificates or Book-Entry
Confirmations. This Letter of Transmittal is to be used either if certificates
are to be forwarded herewith or if tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth in Section 3 of the Offer
to Purchase. Certificates for all physically tendered Shares ("Share
Certificates"), or confirmation of any book-entry transfer into the Depositary's
account at one of the Depository Institutions of Shares tendered by book-entry
transfer, as well as this Letter of Transmittal or facsimile thereof, properly
completed and duly executed with any required signature guarantees or an Agent's
Message, and any other documents required by this Letter of Transmittal, must be
received by the Depositary at one of its addresses set forth herein on or prior
to the Expiration Date (as defined in the Offer to Purchase).
Stockholders whose certificates are not immediately available or who cannot
deliver their certificates and all other required documents to the Depositary on
or prior to the Expiration Date or who cannot complete the procedures for
book-entry transfer on a timely basis may nevertheless tender their Shares by
properly completing and duly executing a Notice of Guaranteed Delivery pursuant
to the guaranteed delivery procedure set forth in Section 3 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 the Purchaser must be
received by the Depositary on or prior to the Expiration Date, and (iii) Share
Certificates or confirmation of any book-entry transfer into the Depositary's
account at a Depository Institution of Shares tendered by book-entry transfer,
as well as a Letter of Transmittal, properly completed and duly executed with
any required signature guarantees (or facsimile thereof, properly completed and
duly executed with any required signature guarantees or an Agent's Message), and
all other documents required by this Letter of Transmittal, must be received by
the Depositary within five New York Stock Exchange, Inc. trading days after the
date of execution of such Notice of Guaranteed Delivery.
If Share Certificates are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal must accompany each
such delivery.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH ANY DEPOSITORY INSTITUTION, IS AT THE
ELECTION AND RISK OF THE TENDERING STOCKHOLDER. THE DELIVERY WILL BE DEEMED MADE
ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF SUCH DELIVERY IS BY MAIL, IT
IS RECOMMENDED THAT SUCH CERTIFICATES AND DOCUMENTS BE SENT BY REGISTERED MAIL,
PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. Inadequate Space. If the space provided herein is adequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. Partial Tenders (Applicable to Certificate Stockholders Only). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares which are to be tendered in this box entitled
"Number of Shares Tendered." In such cases, new certificate(s) for the remainder
of the Shares that were evidenced by your old certificates(s) will be sent to
you, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as soon as practicable after the Expiration Date. All Shares
represented by certificates delivered to the Depositary will be deemed to have
been tendered unless otherwise indicated.
<PAGE> 10
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holders of the Shares
tendered hereby, the signature must correspond with the names as written on the
face of the certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are
signed by trustees, executors, administrators, attorneys-in-fact, officers of
corporations or others acting in fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or purchased are to be issued in the name
of, a person other than the registered holder(s). Signatures on such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder of the certificate(s) listed, the certificate(s) must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered holder or holders appear on the
certificate(s). Signatures on such certificates or stock powers must be
guaranteed by an Eligible Institution.
6. Stock Transfer Taxes. The Purchaser will pay or cause to be paid any
stock transfer taxes with respect to the transfer and sale of purchased Shares
to it or its order pursuant to the Offer. If, however, payment of the purchase
price is to be made to, or (in the circumstances permitted hereby) if
certificates for Shares not tendered or purchased are to be registered in the
name of, any person other than the registered holder, or if tendered
certificates are registered in the name of any person other than the person(s)
signing this Letter of Transmittal, the amount of any stock transfer taxes
(whether imposed on the registered holder or such person) payable on account of
the transfer to such person will be deducted from the purchase price if
satisfactory evidence of the payment of such taxes, or exemption therefrom, is
not submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. Special Payment and Delivery Instructions. If a check is to be issued in
the name of, and/or certificates for Shares not tendered or not accepted for
payment are to be issued or returned to, a person other than the signer of this
Letter of Transmittal or if a check and/or such certificates are to be mailed to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed.
8. Requests for Assistance or Additional Copies. Questions or requests for
assistance may be directed to, or additional copies of the Offer to Purchase,
this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender
offer materials may be obtained from, the Information Agent or the Dealer
Managers at their respective addresses set forth below or from your broker,
dealer, commercial bank or trust company.
9. Substitute Form W-9. Each tendering stockholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN"), generally
the stockholder's social security or federal employer identification number, on
Substitute Form W-9 below. Failure to provide the information on the form may
subject the tendering stockholder to 31% federal income tax withholding on the
payment of the purchase price. The box in Part 3 of the form may be checked 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. If the box in Part 3 is
checked and the Depositary is not provided with a TIN within 60 days, the
Depositary will withhold 31% of all payments of the purchase price thereafter
until a TIN is provided to the Depositary.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE COPY THEREOF) OR AN
AGENT'S MESSAGE TOGETHER WITH SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY
TRANSFER AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY
MUST BE RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE.
<PAGE> 11
IMPORTANT TAX INFORMATION
Under the federal income tax law, a stockholder whose tendered Shares are
accepted for purchase 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 his or her social security number. If a
stockholder fails to provide a TIN to the Depositary, such 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, that stockholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 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, the Depositary is required to withhold 31%
of any payments made to the stockholder or payee. 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.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering stockholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked,
the stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Depositary.
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 owner of the Shares or of
the last transferee appearing on the transfers attached to, or endorsed on, the
Shares. 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.
<PAGE> 12
TO BE COMPLETED BY ALL TENDERING STOCKHOLDERS
(SEE INSTRUCTION 9)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
PAYER'S NAME: TRUST COMPANY BANK
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE Social Security Number
BOX AT RIGHT AND CERTIFY BY SIGNING AND or Employer
FORM W-9 DATING BELOW. Identification Number
-----------------------------
DEPARTMENT OF THE
TREASURY
INTERNAL REVENUE SERVICE
PAYER'S REQUEST FOR --------------------------------------------------------------------------
TAXPAYER
IDENTIFICATION NUMBER PART 2 -- Certificates -- Under penalties of perjury, I certify that:
(TIN) (1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding because (i) I am exempt from
backup withholding, or (ii) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to backup withholding
as a result of a failure to report all interest or dividends, or
(iii) the IRS has notified me that I am no longer subject to backup
withholding.
CERTIFICATE INSTRUCTIONS -- You must cross out item (2) in Part 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 stating that you are no longer subject to backup
withholding, do not cross out item (2).
--------------------------------------------------------------------------
SIGNATURE Date Part 3 --
---------------------- --------------
NAME (Please Print) Awaiting TIN / /
--------------------------------
- ---------------------------------------------------------------------------------------------------
</TABLE>
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 CERTIFICATIONS OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
- ------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (i) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administrative Office or (ii)
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 60 days, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number.
Signature Date
-------------------------------------------- ----------------
Name (Please Print)
-------------------------------------------------------
<PAGE> 13
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Brokers and Dealers Call Collect (212) 269-5550
All Others Call Toll-Free (800) 758-7358
The Dealer Manager for the Offer is:
CS First Boston
(212) 909-2000
(call collect)
<PAGE> 1
CS First Boston
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
(212) 909-2000
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLUB CAR, INC.
AT
$25 NET PER SHARE
BY
CLARK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
CLARK EQUIPMENT COMPANY
------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON WEDNESDAY, MARCH 8, 1995, UNLESS EXTENDED.
------------------------------------------------------------------
February 8, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Clark Acquisition Sub, Inc., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of Clark Equipment
Company, a Delaware corporation ("Clark"), to act as Dealer Manager in
connection with Purchaser's offer to purchase for cash all of the outstanding
shares of common stock, $.01 par value (the "Common Stock"), of Club Car, Inc.,
a Delaware corporation (the "Company"), and the associated Preferred Stock
Purchase Rights (the "Rights" and, together with the Common Stock, the "Shares")
issued pursuant to the Rights Agreement, dated as of September 24, 1993, as
amended, between Club Car, Inc. and Trust Company Bank, as Rights Agent, for $25
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 February
8, 1995 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which together with the Offer to Purchase constitute the "Offer") enclosed
herewith.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares in your name or in the name of your nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase dated February 8, 1995.
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients. Facsimile copies of the Letter of Transmittal
may be used to tender Shares.
3. A letter to stockholders of the Company from George H. Inman,
Chairman of the Board and Chief Executive Officer, together with a
Solicitation/Recommendation Statement on Schedule 14D-9
<PAGE> 2
filed with the Securities and Exchange Commission by the Company and mailed
to stockholders of the Company.
4. The Notice of Guaranteed Delivery for Shares to be used to accept
the Offer if neither of the two procedures for tendering Shares set forth
in the Offer to Purchase can be completed on a timely basis.
5. A printed form of letter which may be sent to your clients for
whose accounts you hold Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients' instructions
with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to Trust Company Bank, the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON WEDNESDAY, MARCH 8, 1995, UNLESS THE
OFFER IS EXTENDED.
Please note the following:
1. The tender price is $25 per Share, net to the seller in cash.
2. The Offer is subject to there being validly tendered and not
properly withdrawn prior to the expiration of the Offer a majority of the
outstanding Shares (on a fully diluted basis) and certain other conditions.
See the Introduction and Sections 1 and 14 of the Offer to Purchase.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, transfer taxes on the purchase of Shares by
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 tax identification information is provided.
See Instruction 9 of the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Wednesday, March 8, 1995, unless the Offer is extended.
6. The board of directors of the Company (the "Board") has unanimously
determined that each of the Offer and the Merger (as defined in the Offer
to Purchase) is fair to, and in the best interests of, the Company's
stockholders, has approved the Merger Agreement (as defined in the Offer to
Purchase) and the transactions contemplated thereby, including the Offer
and the Merger, and recommends that the Company's stockholders accept the
Offer and tender all of their Shares pursuant to the Offer.
7. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after the timely receipt by the Depositary of (a) Share Certificates
(as defined in the Offer to Purchase) pursuant to the procedures set forth
in Section 3 of the Offer to Purchase, or a timely Book-Entry Confirmation
(as defined in the Offer to Purchase) with respect to such Shares, (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), and (c) any other
documents required by the Letter of Transmittal. Accordingly, payment may
not be made to all tendering stockholders at the same time depending upon
when Share Certificates are actually received by the Depositary.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal (or a manually signed facsimile thereof) and any
required signature guarantee or other required documents should be sent to the
Depositary and (ii) Share Certificates representing the tendered Shares or a
timely Book-Entry Confirmation (as defined in the Offer to Purchase) should be
delivered to the Depositary in accordance with the instructions set forth in the
Letter of Transmittal and the Offer to Purchase.
2
<PAGE> 3
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or other required documents or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender may be
effected by following the guaranteed delivery procedures specified in Section 3
of the Offer to Purchase.
Purchaser will not pay any fees or commissions to any broker, dealer or
other person for soliciting tenders of Shares pursuant to the Offer (other than
the Dealer Manager, Depositary and the Information Agent as described in the
Offer to Purchase). Purchaser will, however, upon request, reimburse you for
customary mailing and handling expenses incurred by you in forwarding any of the
enclosed materials to your clients. Purchaser will pay or cause to be paid any
transfer taxes payable on the transfer of Shares to it, except as otherwise
provided in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
D.F. King & Co., Inc., the Information Agent for the Offer, at 77 Water Street,
New York, New York 10005, (212) 269-5550, or CS First Boston, the Dealer
Manager, at Park Avenue Plaza, 55 East 52nd Street, New York, New York 10055,
(212) 909-2000.
Requests for copies of the enclosed materials may be directed to the
Information Agent at the above address and telephone number.
Very truly yours,
CS First Boston Corporation
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON, THE AGENT OF THE PURCHASER, PARENT, THE COMPANY, THE
DEPOSITARY, THE INFORMATION AGENT, THE DEALER MANAGER OR ANY AFFILIATE OF ANY OF
THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY
DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLUB CAR, INC.
AT
$25 NET PER SHARE
BY
CLARK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
------------------------------------------------------------------
CLARK EQUIPMENT COMPANY
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON WEDNESDAY, MARCH 8, 1995, UNLESS EXTENDED.
------------------------------------------------------------------
February 8, 1995
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated February
8, 1995 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer") relating to the offer by Clark Acquisition Sub,
Inc., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of
Clark Equipment Company, a Delaware corporation ("Parent"), to purchase all the
outstanding shares of common stock, $.01 par value (the "Common Stock"), of Club
Car, Inc., a Delaware corporation (the "Company"), and the associated Preferred
Stock Purchase Rights (the "Rights" and, together with the Common Stock, the
"Shares") issued pursuant to the Rights Agreement, dated as of September 24,
1993, as amended, between Club Car, Inc. and Trust Company Bank, as Rights
Agent, at a purchase price of $25 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer. Holders of Shares whose Share Certificates (as defined in the Offer to
Purchase) are not immediately available or who cannot deliver their Certificates
and all other required documents to Trust Company Bank as the depositary (the
"Depositary") or complete the procedures for book-entry transfer prior to the
Expiration Date (as defined in the Offer to Purchase) must tender their Shares
according to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase.
We are (or our nominee is) the holder of record of Shares held by us for
your account. A tender of such Shares can be made early 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.
Accordingly, we request instructions as to whether you wish to have us
tender on your behalf any or all Shares held by us for your account pursuant to
the terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $25 per Share, net to the seller in cash.
2. The Offer is subject to there being validly tendered and not
properly withdrawn prior to the expiration of the Offer a majority of the
outstanding Shares and certain other conditions. See the Introduction and
Sections 1 and 14 of the Offer to Purchase.
3. The Offer is being made for all of the outstanding Shares.
<PAGE> 2
4. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, transfer taxes on the purchase of Shares by
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.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Wednesday, March 8, 1995, unless the Offer is extended.
6. The board of directors of the Company (the "Board") has unanimously
determined that each of the Offer and the Merger (as defined in the Offer
to Purchase) is fair to, and in the best interests of, the Company's
stockholders, has approved the Merger Agreement (as defined in the Offer to
Purchase) and the transactions contemplated thereby, including the Offer
and the Merger, and recommends that the Company's stockholders accept the
Offer and tender all of their Shares pursuant to the Offer.
7. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Share Certificates (as
defined in the Offer to Purchase) pursuant to the procedures set forth in
Section 3 of the Offer to Purchase, or a timely Book-Entry Confirmation (as
defined in the Offer to Purchase) with respect to such Shares, (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), and (c) any other
documents required by the Letter of Transmittal. Accordingly, payment may
not be made to all tendering stockholders at the same time depending upon
when Share Certificates are actually received by the Depositary.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth below. If you authorize the tender of your
Shares, all such Shares will be tendered unless otherwise specified below. An
envelope to return your instructions to us is enclosed. 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.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making of
the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, Purchaser may,
in its discretion, take such action as it may deem necessary to make the Offer
in any jurisdiction and extend the Offer to holders of Shares in such
jurisdiction.
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 will be deemed to
be made on behalf of Purchaser by CS First Boston Corporation or one or more
registered brokers or dealers that are licensed under the laws of such
jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLUB CAR, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase dated February 8, 1995 and the related Letter of Transmittal
in connection with the offer by Clark Acquisition Sub, Inc., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of Clark Equipment
Company, a Delaware corporation, to purchase all outstanding shares of common
stock, par value $.01 per share ("Common Stock"), of Club Car, Inc., a Delaware
corporation (the "Company") and the associated Preferred Stock Purchase Rights
(the "Rights" and, together with the Common Stock, the "Shares") issued pursuant
to the Rights Agreement dated as of September 24, 1993, as amended, between the
Company and Trust Company Bank, as Rights Agent.
This will instruct you to tender to Purchaser the number of Shares
indicated below (or if no number is indicated below, all Shares) which are held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Dated: , 1995
--------------------------------------
-------------------------
Number of Shares --------------------------------------
to be Tendered* SIGNATURE(S)
Shares
------------------------- --------------------------------------
--------------------------------------
PLEASE PRINT NAME(S)
Address
--------------------------------------
--------------------------------------
(INCLUDE ZIP CODE)
Area Code and
Telephone No.
--------------------------------------
--------------------------------------
(DAYTIME TELEPHONE NUMBER)
Taxpayer Identification
or Social Security No(s).
--------------------------------------
--------------------------------------
- ---------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<PAGE> 1
[CLARK LOGO] CLARK
EQUIPMENT
COMPANY
100 North Michigan St.
P.O. Box 7008
South Bend, Indiana 46634
NEWS RELEASE
Contact: Release Date:
Joe Fimbianti IMMEDIATE
219/239-0176
CLARK EQUIPMENT AGREES TO PURCHASE CLUB CAR, INC.
SOUTH BEND, INDIANA, February 3, 1995 -- Clark Equipment Company (NYSE: CKL) and
Club Car, Inc. (NASDAQ: CLBC) of Augusta, Georgia, today jointly announced that
they had signed a merger agreement providing for Clark to acquire all of the
outstanding shares of Club Car for a cash price of $25.00 per share, or a
purchase price of approximately $237 million.
Club Car is currently one of the largest manufacturers of golf cars and light
utility vehicles in the world. The company maintains a worldwide distribution
network of more than 300 distributors, dealers, direct sales offices and
branches. Club Car has enjoyed substantial sales growth in recent years due to
the increased popularity of golf, its ability to produce high quality innovative
vehicles, and its expansion into overseas markets. Club Car's sales in fiscal
1994 were $186 million, and it has approximately 775 employees.
In announcing the agreement, Leo J. McKernan, Clark chairman, president and
chief executive officer, said, "Club Car is a strong, successful company with a
new-golf-car market share of approximately 35 percent in North America. Its
combination of high quality products and technological market leadership has
driven sales growth at a compound annual rate of nearly 18 percent for the past
15 years."
- more -
<PAGE> 2
-2-
George Inman, Club Car's chief executive officer, said, "We believe that Clark
and Club Car are an excellent fit. We expect to benefit from Clark's
considerable expertise in manufacturing, distribution and overseas marketing."
Under the terms of the merger agreement, a subsidiary of Clark will promptly
commence a cash tender offer for all outstanding common shares of Club Car at a
price of $25.00 per share, net in cash. Shares not purchased in the tender
offer will be acquired in a subsequent merger at $25.00 per share as soon as
practicable after the completion of the tender offer. Clark also entered into an
agreement with holders of approximately 28 percent of Club Car's common stock,
including certain investment funds which are affiliates of Kelso & Company,
Inc., who have agreed to tender their shares to Clark.
In closing, Mr. McKernan said, "Club Car meets our stringent strategic
acquisition criteria. While we do not expect the acquisition to have a material
effect on Clark's 1995 earnings, we believe it will improve our 1996 results and
add significant shareholder value in the years to come."
Clark Equipment Company's core businesses design, manufacture and sell
skid-steer loaders, highway paving and construction equipment, and axles and
transmissions for off-highway equipment.
# # # # #
<PAGE> 1
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated February
8, 1995 and the related Letter of Transmittal, and is being made to all holders
of Shares. The Offer is not being made to (nor will tenders be accepted from or
on behalf of) holders of Shares 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 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 Clark Acquisition Sub, Inc. by CS First Boston
Corporation ("CS First Boston") or one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(including the Associated Preferred Stock Purchase Rights)
of
CLUB CAR, INC.
at
$25 NET PER SHARE
by
CLARK ACQUISITION SUB, INC.
a wholly owned subsidiary of
CLARK EQUIPMENT COMPANY
Clark Acquisition Sub, Inc., a Delaware corporation ("Purchaser") and a
wholly owned subsidiary of Clark Equipment Company, a Delaware corporation
("Clark"), is offering to purchase all outstanding shares of common stock, $.01
par value, of Club Car, Inc., a Delaware corporation (the "Company"), and the
associated preferred stock purchase rights (together with the common stock, the
"Shares") at a price of $25 per Share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated February
8, 1995, and the related Letter of Transmittal (which together constitute the
"Offer").
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON WEDNESDAY, MARCH 8, 1995,
UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE (DEFINED BELOW)
THAT NUMBER OF SHARES WHICH WOULD REPRESENT, ON A FULLY DILUTED BASIS, AT LEAST
A MAJORITY OF ALL OUTSTANDING SHARES. SEE THE INTRODUCTORY SECTION AND SECTION 1
OF THE OFFER TO PURCHASE.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of February 3, 1995 (the "Merger Agreement"), among Clark, Purchaser and the
Company. The Merger Agreement provides, among other things, that after
completion of the Offer and the satisfaction or waiver of certain conditions,
Purchaser will be merged with and into the Company (the "Merger"). At the
effective time of the Merger, each outstanding Share (other than treasury
shares, Shares held by Clark and its subsidiaries and Shares owned by
stockholders, if any, who properly exercise their appraisal rights under
Delaware law) will be converted into the right to receive $25 in cash, without
interest.
Concurrently with the execution of the Merger Agreement, Clark and
Purchaser entered into a Stock Tender Agreement, dated February 3, 1995 (the
"Tender Agreement"), with certain stockholders of the
<PAGE> 2
Company (the "Stock Tender Parties") owning, in the aggregate, 28.4% of the
Shares, calculated on a fully-diluted basis. Subject to the terms and conditions
of the Tender Agreement, each of the Stock Tender Parties has agreed to tender
pursuant to the Offer all Shares which are owned of record or beneficially by
them.
THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY HAS DETERMINED THAT EACH
OF THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY, AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS ACCEPT
THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
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, transfer taxes on the purchase of Shares pursuant to the Offer.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) tendered Shares as, if and when Purchaser gives
oral or written notice to the depositary (the "Depositary") of its acceptance of
such Shares for payment. Upon the terms and subject to the conditions of the
Offer, payment for Shares purchased 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 purposes of receiving payment from
Purchaser and transmitting payment to tendering stockholders whose Shares have
theretofore been accepted for payment. 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 for such Shares (or timely Book-Entry
Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to
such Shares), (ii) the Letter of Transmittal (or a manually signed facsimile
thereof), properly completed and duly executed with all required signature
guarantees (or Agent's Message in the case of a book-entry transfer), and (iii)
all other documents required by the Letter of Transmittal. Under no
circumstances will interest be paid on the purchase price for Shares to be paid
by Purchaser, regardless of any delay in making such payment.
The term "Expiration Date" shall mean 12:00 midnight, New York City time,
on Wednesday, March 8, 1995, unless and until Purchaser, in accordance with the
terms of the Offer and the Merger Agreement, shall have extended the period of
time during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Offer, as so extended by
Purchaser, shall expire. Subject to the terms of the Merger Agreement, Purchaser
expressly reserves the right, at any time or from time to time, to extend the
period of time during which the Offer is open and thereby delay acceptance for
payment of, or payment for, any Shares by giving oral or written notice of such
extension to the Depositary. Any such extension will be followed by a public
announcement thereof by no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. During any such
extension, all Shares previously tendered and not withdrawn will remain subject
to the Offer, subject to the right of a tendering stockholder to withdraw such
stockholder's Shares. Without limiting the manner in which Purchaser may choose
to make any public announcement, Purchaser will have no obligation to publish,
advertise or otherwise communicate any such announcement other than by issuing a
press release to the Dow Jones News Service or as otherwise may be required by
law.
<PAGE> 3
Except as otherwise provided below, tenders of Shares are irrevocable.
Shares tendered pursuant to the Offer may be withdrawn any time prior to the
Expiration Date and, unless theretofore accepted for payment by Purchaser, may
also be withdrawn at any time after April 8, 1995 or such later date as may
apply if the Offer is extended. For a withdrawal to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must be timely
received by the Depositary at its address set forth below. 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
certificates evidencing Shares have been delivered or otherwise identified to
the Depositary, then prior to the release of such certificates, the tendering
stockholder must also submit the serial numbers shown on the particular
certificates evidencing the Shares to be withdrawn, and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, as defined
in Section 3 of the Offer to Purchase (except in the case of Shares tendered for
the account of an Eligible Institution). If Shares have been tendered pursuant
to the procedure for book-entry transfer set forth in Section 3 of the Offer to
Purchase, the notice of withdrawal must specify the name and number of the
account at the applicable Book-Entry Transfer Facility (as defined in Section 3
of the Offer to Purchase) to be credited with the withdrawn Shares. All
questions as to the form and validity (including time of receipt) of notices of
withdrawal will be determined by Purchaser, in its sole discretion, whose
determination shall be final and binding on all parties. 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 of the Offer to Purchase.
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to
stockholders. The Offer to Purchase, the related Letter of Transmittal and any
relevant materials will be mailed to record holders of Shares and will be
furnished 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.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule
14d-6 under the Securities Exchange Act of 1934, as amended, is contained in the
Offer to Purchase and is incorporated herein by reference.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
Requests for copies of the Offer to Purchase, the related Letter of
Transmittal and other tender offer documents may be directed to the Information
Agent as set forth below, and copies will be furnished promptly at Purchaser's
expense. Questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager. Neither Purchaser nor Clark will pay any fees or
commissions to any broker or dealer or other person (other than the Dealer
Manager, the Depositary and the Information Agent) in connection with the
solicitation of tenders of shares pursuant to the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, NY 10005
(212) 269-5550 (Call Collect)
(800) 758-7358 (Call Toll Free)
The Depositary for the Offer is:
TRUST COMPANY BANK
<PAGE> 4
<TABLE>
<S> <C>
By Mail By Hand/Overnight Courier:
P.O. Box 4625 58 Edgewood Avenue
Atlanta, GA 30302 Room 225
Atlanta, GA 30303
</TABLE>
By Facsimile
(404) 332-3875
Confirm by Telephone
(800) 568-3476 (Call Toll Free)
The Dealer Manager for the Offer is:
CS FIRST BOSTON
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
(212) 909-2000 (Call Collect)
February 8, 1995
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLUB CAR, INC.
This Notice of Guaranteed Delivery or one substantially equivalent hereto
must be used to accept the Offer (as defined below) if certificates representing
shares of Common Stock, par value $.01 per share (the "Common Stock") of Club
Car, Inc., a Delaware corporation (the "Company"), and the associated Preferred
Stock Purchase Rights (the "Rights" and, together with the Common Stock, the
"Shares") issued pursuant to the Rights Agreement, dated as of September 24,
1993, as amended, between the Company and Trust Company Bank, as Rights Agent,
are not immediately available or time will not permit all required documents to
reach Trust Company Bank (the "Depositary") on or prior to the Expiration Date
(as defined in Section 1 of the Offer to Purchase (as defined below)), or the
procedure for delivery by book-entry transfer cannot be completed on a timely
basis. This Notice of Guaranteed Delivery may be delivered by hand or sent by
facsimile transmission or mail to the Depositary. See Section 3 of the Offer to
Purchase.
The Depositary for the Offer is:
Trust Company Bank
<TABLE>
<S> <C> <C>
By Mail: By Overnight Courier: By Hand:
P.O. Box 4625 58 Edgewood Avenue 58 Edgewood Avenue
Atlanta, Georgia 30302 Room 225 Room 225
Atlanta, Georgia 30303 Atlanta, Georgia 30303
By Facsimile:
(404) 382-3875
Confirm by Telephone:
(800) 568-3476
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO
A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery 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> 2
Ladies and Gentlemen:
The undersigned hereby tenders to Clark Acquisition Sub, Inc. a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Clark Equipment
Company, a Delaware corporation, upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated February 8, 1995 (the "Offer to
Purchase"), and in the related Letter of Transmittal (which together constitute
the "Offer"), receipt of each of which is hereby acknowledged, the number of
Shares indicated below pursuant to the guaranteed delivery procedures set forth
in Section 3 of the Offer to Purchase.
Number of Shares:__________________
Account Number:____________________ Name(s) of Record Holder(s):____________
Certificate No(s). ________________________________________
(if available):____________________ Address(es):____________________________
___________________________________ ________________________________________
___________________________________ ________________________________________
Area Code and
Telephone Number(s):____________________
If Share(s) will be tendered by
book-entry transfer check one box
/ / The Depository Trust Company
/ / The Midwest Securities Trust Signature(s):__________________________
Company _______________________________________
/ / The Philadelphia Depository _______________________________________
Trust Company _______________________________________
Account Number:____________________ _______________________________________
Date: _____________________________
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED AS A SIGNATURE GUARANTEE)
The undersigned, a firm that is a bank, broker, dealer, credit union,
savings association or other entity which is a member in good standing of the
Securities Transfer Agent's Medallion Program, hereby guarantees to deliver to
the Depositary, at one of its addresses set forth above, the certificates
representing all tendered Shares, in proper form for transfer, or a Book-Entry
Confirmation (as defined in the Offer to Purchase), together with a properly
completed and duly executed Letter of Transmittal (or a facsimile thereof), with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message (as defined in the Offer to Purchase)), and any other documents
required by the Letter of Transmittal within five Nasdaq National Market trading
days after the date of execution of this Notice of Guaranteed Delivery.
<TABLE>
<S> <C>
Name of Firm: ---------------------------------------------
- -------------------------------------------- (AUTHORIZED SIGNATURE)
Address: Title:
- -------------------------------------------- ---------------------------------------------
Name:
- -------------------------------------------- ---------------------------------------------
(ZIP CODE)
Area Code and Telephone
Number: Date:
- --------------------------------------------- ---------------------------------------------
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES SHOULD BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
3
<PAGE> 1
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>
<S> <C> <C> <C>
- ----------------------------------------------------- -----------------------------------------------------
GIVE THE GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF -- NUMBER OF --
- ----------------------------------------------------- -----------------------------------------------------
1. An individual's account The individual 9. A valid trust, estate, or The legal entity
pension trust (Do not furnish the
2. Two or more individuals The actual owner of identifying number
(joint account) the account or, if of the personal
combined funds, representative or
any one of the trustee unless the
individuals(1) legal entity itself
is not designated
3. Husband and wife (joint The actual owner of in the account
account) the account or, if title.)(5)
joint funds, either
person(1) 10. Corporate account The corporation
4. Custodian account of a minor The minor(2) 11. Religious, charitable, or The organization
(Uniform Gift to Minors Act) educational organization
account
5. Adult and minor (joint The adult or, if
account) the minor is the 12. Partnership account held in The partnership
only contributor, the name of the business
the
minor(1) 13. Association, club, or other The organization
tax-
6. Account in the name of The ward, minor, exempt organization
guardian or committee for a or incompetent
designated ward, minor, or person(3) 14. A broker or registered The broker or
incompetent person nominee nominee
7. a. The usual revocable The grantor- 15. Account with the Department The public entity
savings trust account trustee(1) of Agriculture in the name of
(grantor is also trustee) a public entity (such as a
b. So-called trust account The actual owner(1) State or local government,
that is not a legal or valid school district, or prison)
trust under State law that receives agricultural
program payments
8. Sole proprietorship account The owner(4)
_______________________________________________________ ________________________________________________
</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> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't 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:
- - A corporation.
- - A financial institution.
- - An organization exempt from tax under section 501(a), or an individual
retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
- - An international organization or any agency, or instrumentality thereof.
- - A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a).
- - An exempt charitable remainder trust, or a nonexempt trust described in
section 4947(a)(1).
- - An entity registered at all times under the Investment Company Act of 1940.
- - A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- - Payments to nonresident aliens subject to withholding under section 1441.
- - Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- - Payments of patronage dividends where the amount received is not paid in
money.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- - 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.
- - Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- - Payments described in section 6049(b)(5) to non-resident aliens.
- - Payments on tax-free covenant bonds under section 1451.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
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.
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 IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1984, payers must generally
withhold 20% 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 includible 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 5% on any portion of an
under-payment 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
<PAGE> 1
Exhibit (c)(1)
[Execution Copy]
============================================================
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CLARK EQUIPMENT COMPANY,
CLARK ACQUISITION SUB, INC.
AND
CLUB CAR, INC.
Dated as of February 3, 1995
============================================================
<PAGE> 2
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I THE OFFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01 The Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Company Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.03 Composition of the Board of Directors . . . . . . . . . . . . . . . . . . 4
1.04 Action by Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II THE MERGER AND RELATED MATTERS . . . . . . . . . . . . . . . . . . . . . . 5
2.01 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.02 Conversion of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.03 Dissenting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.04 Surrender of Certificates . . . . . . . . . . . . . . . . . . . . . . . . 7
2.05 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.06 No Further Rights of Transfers . . . . . . . . . . . . . . . . . . . . . . 10
2.07 Stock Option and Other Plans . . . . . . . . . . . . . . . . . . . . . . . 10
2.08 Certificate of Incorporation of the Surviving Corporation . . . . . . . . 11
2.09 By-Laws of the Surviving Corporation . . . . . . . . . . . . . . . . . . . 11
2.10 Directors and Officers of the Surviving Corporation . . . . . . . . . . . 12
2.11 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE III REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . 12
3.01 Representations and Warranties of the Company . . . . . . . . . . . . . . . 12
(a) Due Organization, Good Standing and Corporate Power . . . . . . . . . 12
(b) Authorization and Validity of Agreement . . . . . . . . . . . . . . . 13
(c) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Consents and Approvals; No Violations . . . . . . . . . . . . . . . . 15
(e) Company Reports and Financial Statements . . . . . . . . . . . . . . . 16
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C> <C>
(f) Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . 17
(g) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(h) Title to Properties; Encumbrances . . . . . . . . . . . . . . . . . . 17
(i) Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . 18
(j) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(k) Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . 19
(l) Employment Relations and Agreements . . . . . . . . . . . . . . . . . 22
(m) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(n) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(o) Intellectual Properties . . . . . . . . . . . . . . . . . . . . . . . 24
(p) Proxy Statement, Schedule 14D-9 and Schedule 14D-1 . . . . . . . . . . 26
(q) Broker's or Finder's Fee . . . . . . . . . . . . . . . . . . . . . . . 27
(r) Environmental Laws and Regulations . . . . . . . . . . . . . . . . . . 27
(s) State Takeover Statutes . . . . . . . . . . . . . . . . . . . . . . . 28
(t) Voting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . 28
(u) Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(v) Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . 29
3.02 Representations and Warranties of Parent and Sub . . . . . . . . . . . . . 29
(a) Due Organization; Good Standing and Corporate Power . . . . . . . . . 29
(b) Authorization and Validity of Agreement . . . . . . . . . . . . . . . 30
(c) Consents and Approvals; No Violations . . . . . . . . . . . . . . . . 30
(d) Offer Documents, Schedule 14D-9 and Proxy Statement . . . . . . . . . 31
(e) Broker's or Finder's Fee . . . . . . . . . . . . . . . . . . . . . . . 32
(f) Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(g) Common Stock Ownership . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE IV TRANSACTIONS PRIOR TO CLOSING DATE . . . . . . . . . . . . . . . . . . . . 32
4.01 Access to Information Concerning Properties and Records . . . . . . . . . 32
4.02 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.03 Conduct of the Business of the Company Pending the Closing Date . . . . . 33
4.04 Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.05 Stockholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.06 Reasonable Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.07 No Solicitation of Other Offers . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C> <C>
4.08 Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . 38
4.09 HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.10 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.11 Directors' and Officers' Insurance; Indemnification . . . . . . . . . . . 39
4.12 Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE V CONDITIONS PRECEDENT TO MERGER . . . . . . . . . . . . . . . . . . . . . . 41
5.01 Conditions Precedent to Obligations of Parent, Sub and the Company . . . . 41
(a) Approval of Company's Stockholders . . . . . . . . . . . . . . . . . 41
(b) HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(c) Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(d) Payment for Common Stock . . . . . . . . . . . . . . . . . . . . . . . 41
(e) Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.02 Conditions Precedent to Obligations of Parent and Sub . . . . . . . . . . . 42
(a) Employee Stock Ownership Plan . . . . . . . . . . . . . . . . . . . . 42
5.03 Conditions Precedent to Obligation of the Company . . . . . . . . . . . . 42
(a) Performance by Parent and Sub . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VI TERMINATION AND ABANDONMENT . . . . . . . . . . . . . . . . . . . . . . . 42
6.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.02 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.01 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.02 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . 45
7.03 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.04 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.05 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.06 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.07 Binding Effect; Benefit; Assignment . . . . . . . . . . . . . . . . . . . . 47
7.08 Amendment and Modification . . . . . . . . . . . . . . . . . . . . . . . . 47
7.09 Further Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
7.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.12 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.14 "Person" Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ANNEX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
(iv)
<PAGE> 6
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 3, 1995 (this
"Agreement"), by and among CLARK EQUIPMENT COMPANY, a Delaware corporation
("Parent"), CLARK ACQUISITION SUB, INC., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Sub"), and CLUB CAR, INC., a Delaware
corporation (the "Company").
WHEREAS, the respective Boards of Directors of Parent, Sub and
the Company (in the case of the Company, based upon the recommendation of a
special committee of independent directors (the "Special Committee")) have
approved the acquisition of the Company by Parent;
WHEREAS, in contemplation thereof it is proposed that Sub will
make a tender offer (the "Offer") to purchase all the issued and outstanding
shares of common stock, $.01 par value, of the Company ("Common Stock"),
subject to the terms and conditions of this Agreement, at a price of $25 per
share net to the seller in cash (the "Offer Price");
WHEREAS, to complete such acquisition, the respective Boards of
Directors of Parent, Sub and the Company, have approved the merger of Sub into
the Company (the "Merger"), pursuant to and subject to the terms and conditions
of this Agreement; and
WHEREAS, the Directors of the Company have unanimously determined
that each of the Offer and the Merger are fair to, and in the best interests
of, the holders of Common Stock, approved the Offer and the Merger and
recommended the acceptance of the Offer and approval and adoption of this
Agreement by the stockholders of the Company; and
WHEREAS, Parent and Sub are unwilling to enter into this
Agreement unless certain stockholders of the Company immediately following the
execution and delivery of this Agreement, enter into a tender agreement (the
"Tender Agreement") among Parent, Sub and certain stockholders of the Company
providing for, among other things, the tender by such stockholders to Sub of
all shares of Common Stock owned by such persons, and the Board of Directors of
the Company has approved Parent and Sub entering into the Tender Agreement
which is to be executed following the execution hereof.
<PAGE> 7
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations, warranties and agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
THE OFFER
1.01 The Offer. Provided that this Agreement shall not have
been terminated in accordance with Article VI hereof and so long as none of the
events set forth in Annex A hereto (the "Tender Offer Conditions") shall have
occurred and are continuing, as promptly as practicable, but in no event later
than the fifth business day after the date of this Agreement, Sub shall
commence the Offer. The obligations of Sub to accept for payment and promptly
to pay for any shares of Common Stock tendered shall be subject only to the
Tender Offer Conditions any of which may be waived; provided, however, that,
without the consent of the Company, Sub shall not waive the condition that
there shall have been validly tendered and not withdrawn prior to the
expiration of the Offer a number of shares of Common Stock which represent a
majority of the total voting power of all shares of capital stock of the
Company outstanding on a fully diluted basis. The Tender Offer Conditions are
for the sole benefit of Parent and Sub and may be asserted by Parent and Sub
regardless of the circumstances giving rise to any such Tender Offer Conditions
and, subject to the preceding sentence, may be waived by Parent and Sub in
whole or in part. Sub expressly reserves the right to modify the terms of the
Offer, including, without limitation, except as provided below, to extend the
Offer beyond any scheduled expiration date; provided, however, without the
consent of the Company, Sub shall not (i) reduce the number of shares of
Company Common Stock to be purchased in the Offer, (ii) reduce the Offer Price,
(iii) modify or add to the conditions set forth in Exhibit A or (iv) change the
form of consideration payable in the Offer. Notwithstanding the foregoing, the
Offer may not be extended beyond any scheduled expiration date unless (x) any
Person (as defined in Section 7.14 hereof) has made an Acquisition Proposal (as
defined in Section 4.07 hereof) or (y) any of the Tender Offer Conditions shall
not have been satisfied; provided, however, (I) even if the Tender Offer
Conditions have not been satisfied, unless an Acquisition Proposal has been
made, the Offer may not be extended beyond the four month anniversary of the
date of commencement of the
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<PAGE> 8
Offer and (II) if the Tender Offer Conditions have been satisfied, then the
Offer may be extended for an additional five business days so long as at the
time of such extension, all conditions to Parent's obligations to purchase
shares of Common Stock pursuant to the Offer are irrevocably waived.
1.02 Company Actions. The Company hereby consents to the
Offer and the Merger and represents that (a) its Board of Directors (at a
meeting duly called and held), based upon the recommendation of the Special
Committee, has (i) determined by the unanimous vote of the Directors that each
of the Offer and the Merger is fair to, and in the best interests of, the
holders of Common Stock, (ii) approved the Offer and the Merger, (iii)
recommended acceptance of the Offer and approval and adoption of this Agreement
by the stockholders of the Company, (iv) taken all other action necessary to
render (x) Section 203 of the Delaware General Corporation Law and other state
takeover statutes and (y) the Rights Agreement dated as of September 23, 1993
(the "Rights Agreement") inapplicable to the Offer, the Merger and the Tender
Agreement; and (b) Donaldson, Lufkin & Jenrette Securities Corporation has
delivered to the Board of Directors of the Company its opinion that the
consideration to be received by the holders of Common Stock pursuant to the
Offer and the Merger is fair to the holders of Common Stock from a financial
point of view, subject to the assumptions and qualifications contained in such
opinion. The Company shall file with the Securities and Exchange Commission
(the "Commission"), as soon as practicable on the date of the commencement of
the Offer a Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") containing the recommendations referred to in clause (a) of
the preceding sentence; provided, however, that such recommendation may be
withdrawn, modified or amended at any time or from time-to-time to the extent
permitted by Section 4.07. Parent and Sub and their counsel shall be given the
opportunity to review the Schedule 14D-9 prior to its filing with the
Commission. The Company agrees to provide Parent and its counsel with any
comments the Company or its counsel may receive from the Commission or its
staff with respect to the Schedule 14D-9 promptly after the receipt of such
comments and shall provide Parent and its counsel an opportunity to
participate, including by way of discussions with the Commission or its staff,
in the response of the Company to such comments. In connection with the Offer,
the Company will promptly furnish Sub with mailing labels, security position
listings and any available listing or computer list containing the names and
addresses of the record holders of the
-3-
<PAGE> 9
Common Stock as of the most recent practicable date and shall furnish Sub with
such additional information (including, but not limited to, updated lists of
holders of Common Stock and their addresses, mailing labels and lists of
security positions) and such other assistance as Sub or its agents may
reasonably request in communicating the Offer to the Company's stockholders.
The Company has been advised that each of its directors and executive officers
intends to tender pursuant to the Offer all shares of Common Stock owned of
record and beneficially by him or her.
1.03 Composition of the Board of Directors. Promptly upon the
acceptance for payment of, and payment by Sub in accordance with the Offer for,
greater than 50% of the outstanding shares of Common Stock pursuant to the
Offer, Sub shall be entitled to designate such number of directors on the Board
of Directors of the Company, rounded up to the next whole number, as will give
Sub, subject to compliance with Section 14(f) of the Exchange Act,
representation on such Board of Directors equal to at least that number of
directors which equals the product of the total number of directors on the
Board of Directors (giving effect to the directors elected pursuant to this
sentence) multiplied by the percentage that such number of shares of Common
Stock so accepted for payment and paid for or otherwise acquired or owned by
Sub or Parent bears to the number of shares of Common Stock outstanding and the
Company and its Board of Directors shall, at such time, take any and all such
action needed to cause Sub's designees to be appointed to the Company's Board
of Directors (including to cause directors to resign). Notwithstanding the
foregoing, neither Parent, Sub nor the Company shall take any action to remove
or replace any member of the Special Committee after consummation of the Offer
and prior to the Effective Time. If at any time prior to the Effective Time
there are less than two members of the Special Committee, as constituted on the
date hereof, on the Company's Board of Directors, Parent, Sub and the Company
shall use their reasonable efforts to ensure that two members (the "Continuing
Directors") of the Company's Board of Directors are either (a) members of the
Special Committee (as constituted on the date hereof) or (b) persons who are
neither (i) officers or employees of the Company nor (ii) associated or
affiliated with, or designated by, Parent. In the event that one or both
Continuing Directors resign from the Special Committee, Parent, Sub and the
Company shall permit the remaining, or in the case of the resignation of both
Continuing Directors, the resigning, Continuing Director or Continuing
Directors to appoint his or their successors in his or their
-4-
<PAGE> 10
reasonable discretion. Subject to applicable law, the Company shall take all
action requested by Parent which is reasonably necessary to effect any such
election, including mailing to its stockholders the Information Statement
containing the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing
with the mailing of the Schedule 14D-9 so long as Sub shall have provided to
the Company on a timely basis all information required to be included in the
Information Statement with respect to Sub's designees. In furtherance thereof,
the Company will increase the size of the Company's Board of Directors, or use
its reasonable efforts to secure the resignation of directors, or both, as is
necessary to permit Sub's designees to be elected to the Company's Board of
Directors. At the Effective Time (as defined in Section 2.01(a) hereof), the
Company, if so requested, will use its reasonable efforts to cause persons
designated by Sub to constitute the same percentage of each committee of such
board, each board of directors of each subsidiary of the Company and each
committee of each such board (in each case to the extent of the Company's
ability to elect such persons).
1.04 Action by Directors. Following the election or
appointment of the Parent's designees pursuant to Section 1.03 and prior to the
Effective Time, and, so long as there shall be at least one Continuing
Director, if requested by a majority of the Continuing Directors, such
designees shall abstain from acting upon, and the approval of a majority of the
Continuing Directors shall be required to authorize, any termination of this
Agreement by the Company, any amendment of this Agreement requiring action by
the Board of Directors of the Company, any extension of time for the
performance of any of the obligations or other acts of Parent or Sub under this
Agreement and any waiver of compliance with any of the covenants, agreements or
conditions under this Agreement for the benefit of the Company.
ARTICLE II
THE MERGER AND RELATED MATTERS
2.01 The Merger. (a) Subject to the terms and conditions of
this Agreement, at the time of the Closing (as defined in Section 2.11 hereof),
a certificate of merger (the "Certificate of Merger") shall be duly prepared,
executed and acknowledged by Sub and the Company in accordance with
-5-
<PAGE> 11
Delaware General Corporation Law and shall be filed on the Closing Date (as
defined in Section 2.11 hereof). The Merger shall become effective upon the
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with the provisions and requirements of the Delaware
General Corporation Law. The date and time when the Merger shall become
effective is hereinafter referred to as the "Effective Time."
(b) At the Effective Time, Sub shall be merged with and into
the Company and the separate corporate existence of Sub shall cease, and the
Company shall continue as the surviving corporation under the laws of the State
of Delaware under the name of "Club Car, Inc." (the "Surviving Corporation").
(c) From and after the Effective Time, the Merger shall have
the effects set forth in Section 259 of the Delaware General Corporation Law.
2.02 Conversion of Stock. At the Effective Time:
(a) Each share of Common Stock then issued and outstanding
(other than (i) any shares of Common Stock which are held by any
subsidiary of the Company or in the treasury of the Company, or which are
held, directly or indirectly, by Parent or any direct or indirect
subsidiary of Parent (including Sub), all of which shall be cancelled and
none of which shall receive any payment with respect thereto and (ii)
shares of Common Stock held by Dissenting Stockholders (as defined in
Section 2.03 hereof)) shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and represent
the right to receive an amount in cash, without interest, equal to the
price paid for each share of Common Stock pursuant to the Offer (the
"Merger Consideration"); and
(b) Except as otherwise provided in the next succeeding
sentence, each share of common stock, par value $.01 per share, of Sub
then issued and outstanding shall, by virtue of the Merger and without any
action on the part of the holder thereof, become one fully paid and
nonassessable share of common stock, $.01 par value, of the Surviving
Corporation.
2.03 Dissenting Stock. Notwithstanding anything in this
Agreement to the contrary but only to the extent re-
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<PAGE> 12
quired by Delaware General Corporation Law, shares of Common Stock that are
issued and outstanding immediately prior to the Effective Time and are held by
holders of Common Stock who comply with all the provisions of Delaware law
concerning the right of holders of Common Stock to dissent from the Merger and
require appraisal of their shares of Common Stock ("Dissenting Stockholders")
shall not be converted into the right to receive the Merger Consideration but
shall become the right to receive such consideration as may be determined to be
due such Dissenting Stockholder pursuant to the law of the State of Delaware;
provided, however, that (i) if any Dissenting Stockholder shall subsequently
deliver a written withdrawal of his or her demand for appraisal (with the
written approval of the Surviving Corporation, if such withdrawal is not
tendered within 60 days after the Effective Time), or (ii) if any Dissenting
Stockholder fails to establish and perfect his or her entitlement to appraisal
rights as provided by applicable law, or (iii) if within 120 days of the
Effective Time neither any Dissenting Stockholder nor the Surviving Corporation
has filed a petition demanding a determination of the value of all shares of
Common Stock outstanding at the Effective Time and held by Dissenting
Stockholders in accordance with applicable law, then such Dissenting
Stockholder or Stockholders, as the case may be, shall forfeit the right to
appraisal of such shares and such shares shall thereupon be deemed to have been
converted into the right to receive, as of the Effective Time, the Merger
Consideration, without interest. The Company shall give Parent and Sub (A)
prompt notice of any written demands for appraisal, withdrawals of demands for
appraisal and any other related instruments received by the Company, and (B)
the opportunity to direct all negotiations and proceedings with respect to
demands for appraisal. The Company will not voluntarily make any payment with
respect to any demands for appraisal and will not, except with the prior
written consent of Parent, settle or offer to settle any demand.
2.04 Surrender of Certificates. (a) Concurrently with or
prior to the Effective Time, Parent shall designate a bank or trust company
located in the United States to act as paying agent (the "Paying Agent") for
purposes of making the cash payments contemplated hereby. As soon as
practicable after the Effective Time, Parent shall cause the Paying Agent to
mail and/or make available to each holder of a certificate theretofore
evidencing shares of Common Stock (other than those which are held by any
subsidiary of the Company or in the treasury of the Company or which are held
directly or indirectly by Parent or any direct or indirect
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<PAGE> 13
subsidiary of Parent (including Sub)) a notice and letter of transmittal
advising such holder of the effectiveness of the Merger and the procedure for
surrendering to the Paying Agent such certificate or certificates which
immediately prior to the Effective Time represented outstanding Common Stock
(the "Certificates") in exchange for the Merger Consideration deliverable in
respect thereof pursuant to this Article II. Upon the surrender for
cancellation to the Paying Agent of such Certificates, together with a letter
of transmittal, duly executed and completed in accordance with the instructions
thereon, and any other items specified by the letter of transmittal, the Paying
Agent shall promptly pay to the Person entitled thereto the Merger
Consideration deliverable in respect thereof. Until so surrendered, each
Certificate shall be deemed, for all corporate purposes, to evidence only the
right to receive upon such surrender the Merger Consideration deliverable in
respect thereof to which such Person is entitled pursuant to this Article II.
No interest shall be paid or accrued in respect of such cash payments.
(b) If the Merger Consideration (or any portion thereof) is to
be delivered to a Person other than the Person in whose name the Certificates
surrendered in exchange therefor are registered, it shall be a condition to the
payment of the Merger Consideration that the Certificates so surrendered shall
be properly endorsed or accompanied by appropriate stock powers and otherwise
in proper form for transfer, that such transfer otherwise be proper and that
the Person requesting such transfer pay to the Paying Agent any transfer or
other taxes payable by reason of the foregoing or establish to the satisfaction
of the Paying Agent that such taxes have been paid or are not required to be
paid.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed, the Paying Agent will issue
in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration deliverable in respect thereof as determined in accordance with
this Article II, provided that, the Person to whom the Merger Consideration is
paid shall, as a condition precedent to the payment thereof, give the Surviving
Corporation a bond in such sum as it may direct or otherwise indemnify the
Surviving Corporation in a manner satisfactory to it against any claim that may
be made against the Surviving Corporation with respect to the Certificate
claimed to have been lost, stolen or destroyed.
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<PAGE> 14
2.05 Payment. Concurrently with or immediately prior to the
Effective Time, Parent or Sub shall deposit in trust with the Paying Agent cash
in United States dollars in an aggregate amount equal to the product of (i) the
number of shares of Common Stock outstanding immediately prior to the Effective
Time (other than shares of Common Stock which are held by any subsidiary of the
Company or in the treasury of the Company or which are held directly or
indirectly by Parent or any direct or indirect subsidiary of Parent (including
Sub) or a Person known at the time of such deposit to be a Dissenting
Stockholder) and (ii) the Merger Consideration (such amount being hereinafter
referred to as the "Payment Fund"). The Payment Fund shall be invested by the
Paying Agent as directed by Parent in direct obligations of the United States,
obligations for which the full faith and credit of the United States is pledged
to provide for the payment of principal and interest, commercial paper rated of
the highest quality by Moody's Investors Services, Inc. or Standard & Poor's
Ratings Group or certificates of deposit, bank repurchase agreements or
bankers' acceptances of a commercial bank having at least $100,000,000 in
assets (collectively, "Permitted Investments") or in money market funds which
are invested in Permitted Investments, and any net earnings with respect
thereto shall be paid to Parent as and when requested by Parent. The Paying
Agent shall, pursuant to irrevocable instructions, make the payments referred
to in Section 2.02(a) hereof out of the Payment Fund. The Payment Fund shall
not be used for any other purpose except as otherwise agreed to by Parent.
Promptly following the date which is three months after the Effective Time, the
Paying Agent shall return to Parent all cash, certificates and other
instruments in its possession that constitute any portion of the Payment Fund
(other than net earnings on the Payment Fund which shall be paid to Parent),
and the Paying Agent's duties shall terminate. Thereafter, each holder of a
Certificate may surrender such Certificate to the Surviving Corporation and
(subject to applicable abandoned property, escheat and similar laws) receive in
exchange therefor the Merger Consideration, without interest, but shall have no
greater rights against the Surviving Corporation or Parent than may be accorded
to general creditors of the Surviving Corporation or Parent under applicable
law. Notwithstanding the foregoing, neither the Paying Agent nor any party
hereto shall be liable to a holder of shares of Common Stock for any Merger
Consideration delivered to a public official pursuant to applicable abandoned
property, escheat and similar laws.
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<PAGE> 15
2.06 No Further Rights of Transfers. At and after the
Effective Time, each holder of a Certificate shall cease to have any rights as
a stockholder of the Company, except for, in the case of a holder of a
Certificate (other than shares to be cancelled pursuant to Section 2.02(a)
hereof and other than shares held by Dissenting Stockholders), the right to
surrender his or her Certificate in exchange for payment of the Merger
Consideration or, in the case of a Dissenting Stockholder, to perfect his or
her right to receive payment for his or her shares pursuant to Delaware law if
such holder has validly perfected and not withdrawn his or her right to receive
payment for his or her shares, and no transfer of shares of Common Stock shall
be made on the stock transfer books of the Surviving Corporation. Certificates
presented to the Surviving Corporation after the Effective Time shall be
cancelled and exchanged for cash as provided in this Article II. At the close
of business on the day of the Effective Time the stock ledger of the Company
with respect to Common Stock shall be closed.
2.07 Stock Option and Other Plans. (a) Prior to the
Effective Time, the Board of Directors of the Company (or, if appropriate, any
Committee thereof) shall adopt appropriate resolutions and take all other
actions necessary to provide for the cancellation, effective at the Effective
Time, of all the outstanding stock options to purchase Common Stock (the
"Options") heretofore granted under any stock option plan of the Company (the
"Stock Plans"). Immediately prior to the Effective Time, (i) each Option,
whether or not then vested or exercisable, shall no longer be exercisable for
the purchase of shares of Common Stock but shall entitle each holder thereof,
in cancellation and settlement therefor, to payments in cash (subject to any
applicable withholding taxes, the "Cash Payment"), at the Effective Time, equal
to the product of (x) the total number of shares of Common Stock subject to
such Option, whether or not then vested or exercisable, and (y) the excess of
the Merger Consideration over the exercise price per share of Common Stock
subject to such Option, each such Cash Payment to be paid to each holder of an
outstanding Option at the Effective Time; provided, however, that with respect
to any Person subject to Section 16 of the Exchange Act, any such amount shall
be paid as soon as practicable after the first date payment can be made without
liability to such Person under Section 16(b) of the Exchange Act, and (ii) each
share of Common Stock previously issued in the form of grants of restricted
stock or grants of contingent shares shall fully vest in accordance with their
respective terms. Any then outstanding stock appreciation rights
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<PAGE> 16
or limited stock appreciation rights shall be cancelled as of immediately prior
to the Effective Time without any payment therefor. As provided herein, the
Stock Plans and any other plan, program or arrangement providing for the
issuance or grant of any other interest in respect of the capital stock of the
Company or any subsidiary (collectively with the Stock Plans, referred to as
the "Stock Incentive Plans") shall terminate as of the Effective Time. The
Company will take all steps to ensure that neither the Company nor any of its
subsidiaries is or will be bound by any Options, other options, warrants,
rights or agreements which would entitle any Person, other than Parent or its
affiliates, to own any capital stock of the Surviving Corporation or any of its
subsidiaries or to receive any payment in respect thereof. The Company will
use its best efforts to obtain all necessary consents to ensure that after the
Effective Time, the only rights of the holders of Options to purchase shares of
Common Stock in respect of such Options will be to receive the Cash Payment in
cancellation and settlement thereof.
(b) All Stock Plans shall terminate as of the Effective Time
and the provisions in any other Employee Plan (as defined in Section 3.01(k))
providing for the issuance, transfer or grant of any capital stock of the
Company or any interest in respect of any capital stock of the Company shall be
deleted as of the Effective Time, and the Company shall ensure that following
the Effective Time no holder of an Option or any participant in any Stock Plans
shall have any right thereunder to acquire any capital stock of the Company,
Parent or the Surviving Corporation, except as provided in Section 2.07(a).
2.08 Certificate of Incorporation of the Surviving
Corporation. The Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation and shall be amended so that Article
IV paragraph A thereof reads in its entirety as follows: "The total number of
shares of stock of all classes which the Corporation has authority to issue is
1,000 shares of Common Stock, par value one cent ($.01) per share."
2.09 By-Laws of the Surviving Corporation. The By-Laws of the
Company, as in effect immediately prior to the Effective Time, shall be the
By-Laws of the Surviving Corporation.
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<PAGE> 17
2.10 Directors and Officers of the Surviving Corporation. At
the Effective Time, the directors of Sub immediately prior to the Effective
Time shall be the directors of the Surviving Corporation, each of such
directors to hold office, subject to the applicable provisions of the
Certificate of Incorporation and By-Laws of the Surviving Corporation, until
the next annual stockholders' meeting of the Surviving Corporation and until
their respective successors shall be duly elected or appointed and qualified.
At the Effective Time, the officers of the Company immediately prior to the
Effective Time shall, subject to the applicable provisions of the Certificate
of Incorporation and By-Laws of the Surviving Corporation, be the officers of
the Surviving Corporation until their respective successors shall be duly
elected or appointed and qualified.
2.11 Closing. The closing of the Merger (the "Closing") shall
take place at the offices of White & Case, 1155 Avenue of the Americas, New
York, New York, as soon as practicable after the last of the conditions set
forth in Article V hereof is fulfilled or waived (subject to applicable law)
but in no event later than the fifth business day thereafter, or at such other
time and place and on such other date as Parent and the Company shall mutually
agree (the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of the Company. The
Company hereby represents and warrants to Parent and Sub as follows:
(a) Due Organization, Good Standing and Corporate Power. Each
of the Company and its subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its incorporation and each such corporation has all requisite corporate
power and authority to own, lease and operate its properties and to carry
on its business as now being conducted. Each of the Company and its
subsidiaries is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except in such jurisdictions where the failure to
be so
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<PAGE> 18
qualified or licensed and in good standing would not have a material
adverse effect on the business, properties, assets, liabilities,
operations, results of operations, condition (financial or otherwise) or
prospects (the "Condition") of the Company and its subsidiaries. The
Company has made available to Parent and Sub complete and correct copies
of the Restated Articles of Incorporation and By-Laws of the Company and
its subsidiaries, in each case as amended to the date of this Agreement.
The respective certificates of incorporation and by-laws or other
organizational documents of the subsidiaries of the Company do not contain
any provision limiting or otherwise restricting the ability of the Company
to control such subsidiaries.
(b) Authorization and Validity of Agreement. The Company has
full corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement by the Company, and the consummation by it of the transactions
contemplated hereby, have been duly authorized and approved by its Board
of Directors and no other corporate action on the part of the Company is
necessary to authorize the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby (other than the approval of this Agreement by the
holders of a majority of the shares of Common Stock). This Agreement has
been duly executed and delivered by the Company and is a valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except to the extent that its enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(c) Capitalization. (i) The authorized capital stock of the
Company consists of 20,000,000 shares of Common Stock and 1,000,000 shares
of preferred stock, $1.00 par value (the "Preferred Stock"). As of
February 1, 1995, (1) 9,090,006 shares of Common Stock are issued and
outstanding, (2) 1,101,480 shares of Common Stock are reserved for
issuance pursuant to outstanding Options granted under the Stock Incentive
Plans, (3) no shares of Preferred Stock are issued and outstanding and (4)
100,151 shares of Common Stock are held in the
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<PAGE> 19
Company's treasury. All issued and outstanding shares of Common Stock
have been validly issued and are fully paid and nonassessable, and are not
subject to, nor were they issued in violation of, any preemptive rights.
Except as set forth in this Section 3.01(c) or on Schedule 3.01(c) of the
disclosure letter to be prepared by the Company for the benefit of Parent
and Sub in connection with the transactions contemplated by this Agreement
(the "Disclosure Letter"), (i) there are no shares of capital stock of the
Company authorized, issued or outstanding and (ii) there are not as of the
date hereof, and at the Effective Time there will not be, any outstanding
or authorized options, warrants, rights, subscriptions, claims of any
character, agreements, obligations, convertible or exchangeable
securities, or other commitments, contingent or otherwise, relating to
Common Stock or any other shares of capital stock of the Company, pursuant
to which the Company is or may become obligated to issue shares of Common
Stock, any other shares of its capital stock or any securities convertible
into, exchangeable for, or evidencing the right to subscribe for, any
shares of the capital stock of the Company. The Disclosure Letter sets
forth the number of Options held by each Person and the exercise price
therefor. The Company has no authorized or outstanding bonds, debentures,
notes or other indebtedness the holders of which have the right to vote
(or convertible or exchangeable into or exercisable for securities having
the right to vote) with the stockholders of the Company or any of its
subsidiaries on any matter ("Voting Debt"). After the Effective Time, the
Surviving Corporation will have no obligation to issue, transfer or sell
any shares of Common Stock of the Surviving Corporation pursuant to any
Employee Plan.
(ii) Schedule 3.01(c)(ii) of the Disclosure Letter lists all of the
Company's subsidiaries. All of the outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, are not subject to, nor were
they issued in violation of, any preemptive rights, and are owned, of
record and beneficially, by the Company, free and clear of all liens,
encumbrances, options or claims whatsoever. No shares of capital stock of
any of the Company's subsidiaries are reserved for issuance and there are
no outstanding or authorized options, warrants, rights, subscriptions,
claims of any character, agreements,
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<PAGE> 20
obligations, convertible or exchangeable securities, or other commitments,
contingent or otherwise, relating to the capital stock of any subsidiary
of the Company, pursuant to which such subsidiary is or may become
obligated to issue any shares of capital stock of such subsidiary or any
securities convertible into, exchangeable for, or evidencing the right to
subscribe for, any shares of such subsidiary. There are no restrictions
of any kind which prevent the payment of dividends by any of the Company's
subsidiaries. Except for the subsidiaries listed on Schedule 3.01(c)(ii)
of the Disclosure Letter, the Company does not own, directly or
indirectly, any capital stock or other equity interest in any Person or
have any direct or indirect equity or ownership interest in any Person and
neither the Company nor any of its subsidiaries is subject to any
obligation or requirement to provide funds for or to make any investment
(in the form of a loan, capital contribution or otherwise) to or in any
Person. The Company's subsidiaries have no Voting Debt.
(d) Consents and Approvals; No Violations. Assuming (i) the
filings required under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), are made and the waiting period
thereunder has been terminated or has expired, (ii) the requirements of
the Exchange Act relating to the Proxy Statement and the Offer are met,
(iii) the filing of the Certificate of Merger and other appropriate merger
documents, if any, as required by Delaware General Corporation Law, is
made and (iv) approval of the Merger by a majority of the holders of
Common Stock, if required by Delaware General Corporation Law, is received
and except as disclosed in Schedule 3.01(d) of the Disclosure Letter, the
execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby will
not: (1) violate any provision of the Restated Certificate of
Incorporation, as amended, or By-Laws of the Company or any of its
subsidiaries; (2) violate any statute, ordinance, rule, regulation, order
or decree of any court or of any governmental or regulatory body, agency
or authority applicable to the Company or any of its subsidiaries or by
which any of their respective properties or assets may be bound; (3)
require any filing with, or permit, consent or approval of, or the giving
of any notice to, any governmental or regulatory body, agency or
authority; or (4) result in a violation or breach of, conflict with,
constitute
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<PAGE> 21
(with or without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation, payment or acceleration)
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company or any of
its subsidiaries under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, franchise, permit, agreement,
lease, franchise agreement or other instrument or obligation to which the
Company or any of its subsidiaries is a party, or by which it or any of
their respective properties or assets except in the case of clauses (2),
(3) and (4) above for such filing, permit, consent, approval or violation,
which could not reasonably be expected to have a material adverse effect
on the Condition of the Company and its subsidiaries, taken as a whole, or
could be reasonably likely to prevent or materially delay consummation of
the transactions contemplated by this Agreement.
(e) Company Reports and Financial Statements. (i)Since
October 25, 1993, the Company has filed all forms, reports and documents
with the Commission required to be filed by it pursuant to the federal
securities laws and the Commission rules and regulations thereunder, and
all forms, reports and documents filed with the Commission have complied
in all material respects with all applicable requirements of the federal
securities laws and the Commission rules and regulations promulgated
thereunder. The Company has, prior to the date of this Agreement, made
available to Parent true and complete copies of all forms, reports,
registration statements and other filings filed by the Company with the
Commission since October 25, 1993 (such forms, reports, registration
statements and other filings, together with any exhibits, any amendments
thereto and information incorporated by reference therein, are sometimes
collectively referred to as the "Commission Filings"). As of their
respective dates, the Commission Filings did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
consolidated balance sheets as of the end of the fiscal years ended
September 25, 1994, September 26, 1993 and September 27, 1992 and the
consolidated statements of operations, consolidated statements of
stockholders' equity and consolidated
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<PAGE> 22
statements of changes in financial position for the fiscal years ended
September 25, 1994, September 26, 1993 and September 27, 1992 included in
the Commission Filings, were prepared in accordance with generally
accepted accounting principles (as in effect from time to time) applied on
a consistent basis (except as may be indicated therein or in the notes or
schedules thereto) and fairly present the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates thereof
and the results of their operations and changes in financial position for
the periods then ended.
(f) Absence of Certain Changes. Except as previously
disclosed in the Commission Filings or as otherwise disclosed in Schedule
3.01(f) of the Disclosure Letter or as otherwise contemplated by this
Agreement since September 25, 1994 (i) there has not been any material
adverse change in the Condition of the Company and its subsidiaries taken
as a whole; (ii) the businesses of the Company and each of its
subsidiaries have been conducted only in the ordinary course; (iii)
neither the Company nor any of its subsidiaries has incurred any material
liabilities (direct, contingent or otherwise) or engaged in any material
transaction or entered into any material agreement outside the ordinary
course of business; (iv) the Company and its subsidiaries have not
increased the compensation of any officer or granted any general salary or
benefits increase to their employees other than in the ordinary course of
business; (v) neither the Company nor any of its subsidiaries has taken
any action referred to in Section 4.03 hereof except as permitted thereby;
(vi) there has been no declaration, setting aside or payment of any
dividend or other distribution with respect to the capital stock of the
Company; and (vii) there has been no change by the Company in accounting
principles, practices or methods.
(g) Insurance. The Company and its subsidiaries have obtained
and maintained in full force and effect insurance (including director's and
officer's insurance) with insurance companies or associations in such
amounts, on such terms and covering such risks as disclosed in Schedule
3.01(g) of the Disclosure Letter.
(h) Title to Properties; Encumbrances. The Company and each of
its subsidiaries has good, valid and
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<PAGE> 23
marketable title to (i) all its material tangible properties and assets
(real and personal), including, without limitation, all material
properties and assets reflected in the consolidated balance sheet as of
September 25, 1994 except as indicated in the notes thereto and except for
properties and assets reflected in the consolidated balance sheet as of
September 25, 1994 which have been sold or otherwise disposed of in the
ordinary course of business, and (ii) all material tangible properties and
assets purchased by the Company and any of its subsidiaries since
September 25, 1994 except for such properties and assets which have been
sold or otherwise disposed of in the ordinary course of business; in each
case subject to no encumbrance, lien, charge or other restriction of any
kind or character, except for (1) liens reflected in the consolidated
balance sheet as of September 25, 1994, (2) liens consisting of zoning or
planning restrictions, easements, permits and other restrictions or
limitations on the use of real property or irregularities in title thereto
which do not materially detract from the value of, or impair the use of,
such property by the Company or any of its subsidiaries in the operation
of its respective business, (3) liens for current taxes, assessments or
governmental charges or levies on such property not yet due and delinquent
and (4) mechanics, materialmen's and other similar liens imposed by law
and incurred in the ordinary course of business.
(i) Compliance with Laws. The Company and its subsidiaries
are in compliance with all applicable laws, regulations, orders, judgments
and decrees except where the failure to so comply would not have a
material adverse effect on the Condition of the Company and its
subsidiaries taken as a whole or could be reasonably likely to prevent or
materially delay consummation of the transactions contemplated by this
Agreement.
(j) Litigation. Except as disclosed in the Commission
Filings, there is no action, suit, proceeding at law or in equity, or any
arbitration or any administrative or other proceeding by or before (or to
the best knowledge of the Company any investigation by) any governmental
or other instrumentality or agency, pending, or, to the best knowledge of
the Company, threatened, against or affecting the Company or any of its
subsidiaries, or any of their properties or rights which could have a
material adverse effect on the Condition of
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<PAGE> 24
the Company and its subsidiaries taken as a whole. Except as disclosed in
the Commission Filings, neither the Company nor any of its subsidiaries is
subject to any judgment, order or decree entered in any lawsuit or
proceeding which could have a material adverse effect on the Condition of
the Company and its subsidiaries taken as a whole or on the ability of the
Company or any subsidiary to conduct its business as presently conducted.
(k) Employee Benefit Plans.
(i) Schedule 3.01(k) of the Disclosure Letter lists all "employee
benefit plans" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations thereunder ("ERISA"), including, without limitation, all
retirement, savings and other pension plans, all health, severance,
insurance, disability and other employee welfare plans and all incentive,
vacation, accrued leave, sick pay, sick leave and other similar plans, all
bonus, stock option, stock purchase, restricted stock, incentive,
profit-sharing, deferred compensation, supplemental retirement,
unemployment benefit, severance and other employee benefit plans, programs
or arrangements (whether or not insured) and all material employment,
consulting, termination, or compensation agreements, in each case for the
benefit of, or relating to current employees and former employees or
directors of the Company, whether or not any such items are in writing or
are exempt from the provisions of ERISA, that have been established,
maintained or contributed to or with respect to which any potential
material liability is borne by the Company or any of its subsidiaries
(including, for this purpose and for the purpose of all of the
representations in this Section 3.01(k), any predecessors to the Company or
to any of its subsidiaries and all employers (whether or not incorporated)
that are or were by reason of common control treated together with the
Company or any of its subsidiaries as a single employer within the meaning
of Section 414 of the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder (the "Code")), since January 1, 1988
("Employee Plans").
(ii) Neither the Company nor any of its subsidiaries has at any
time maintained, contributed to, had an obligation to contribute to, or
otherwise sponsored a "defined benefit plan," as defined in ERISA Section
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<PAGE> 25
3(35), a plan subject to Section 412 of the Code, or a "multiemployer
plan," as defined in ERISA Section 4001(a)(3).
Neither the Company nor any of its subsidiaries maintains any
Employee Plan which is a "group health plan" (as such term is defined in
Section 5000(b)(1) of the Code) that has not been administered and
operated in all material respects in compliance with the applicable
requirements of Section 601 of ERISA and Section 4980B(f) of the Code and
neither the Company nor any of its subsidiaries is subject to any material
liability as a result of such administration and operation. Except as set
forth in Schedule 3.01(k) of the Disclosure Letter, neither the Company
nor any of its subsidiaries maintains any Employee Plan (whether qualified
or nonqualified within the meaning of Section 401(a) of the Code)
providing for retiree health and/or life benefits and having material
unfunded liabilities.
Except as set forth in Schedule 3.01(k) of the Disclosure Letter
neither the Company nor any of its subsidiaries has any material unfunded
liabilities pursuant to any Employee Plan that is not intended to be
qualified under Section 401(a) of the Code.
(iii) All Employee Plans have at all times been maintained and
operated in all material respects in compliance with their terms and the
requirements prescribed by all applicable statutes, orders or governmental
rules or regulations with respect thereto, and the Company has performed
all material obligations required to be performed by it under, and is not
in any material respect in default under or in violation of, any of the
Employee Plans. No condition or circumstance exists that would prevent
the amendment or termination of any Employee Plan.
(iv) Except as set forth in Schedule 3.01(k) of the Disclosure
Letter, each Employee Plan intended to be qualified under Section 401(a)
of the Code has heretofore been determined by the Internal Revenue Service
to so qualify, and each trust created thereunder has heretofore been
determined by the Internal Revenue Service to so qualify, and each trust
created thereunder has heretofore been determined by the Internal Revenue
Service to be exempt from tax under the provisions of Section 501(a) of
the Code and, to the best knowledge of
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<PAGE> 26
the Company nothing has occurred since the date of the most recent
determination that would be reasonably likely to cause any such Employee
Plan or trust to fail to qualify under Section 401(a) or 501(a) of the
Code.
(v) The Company has not incurred any material liability to the
Pension Benefit Guaranty Corporation ("PBGC") under Section 4001 et seq.
of ERISA, and no condition exists that could reasonably be expected to
result in the Company incurring material liability under Title IV of
ERISA, either singly or as a member of any trade or business, whether or
not incorporated, under common control of or affiliated with the Company,
within the meaning of Section 414(b), (c), (m) or (o) of the Code. All
premiums payable to the PBGC have been paid when due.
(vi) The Company has made available to Parent, copies of all
material documents in connection with each Employee Plan including,
without limitation (where applicable), (a) all Employee Plans as in effect
on the date hereof, together with all amendments thereto, including, in
the case of any Employee Plan not set forth in writing, a written
description thereof; (b) all current summary plan descriptions, summaries
of material modifications and material communications; (c) all current
trust agreements, declarations of trust and other documents establishing
other funding arrangements (and all amendments thereto and the latest
financial statements thereof); (d) the most recent Internal Revenue
Service determination letter, if applicable; (e) annual reports required
to be filed within the last year pursuant to ERISA or the Code with
respect to the Employee Plans; (f) the most recently prepared financial
statements; and (g) all material contracts relating to each Employee Plan,
including, without limitation, service provider agreements, insurance
contracts, annuity contracts, investment management agreements,
subscription agreements, participation agreements, and recordkeeping
agreements.
(vii) Neither the Company nor any of its subsidiaries nor, to
the best knowledge of the Company, any of their respective directors,
officers, employees or other persons who participate in the operation of
any Employee Plan or related trust or funding vehicle, has engaged in any
transaction with respect to any Employee Plan or breached any applicable
fiduciary responsibilities or
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obligations under Title I of ERISA that would subject any of them to a
material tax, penalty or liability for prohibited transactions under ERISA
or the Code or would result in any material claim being made under, by or
on behalf of any such Employee Plan by any party with standing to make
such claim.
(viii) Full payment has been made of all amounts which the
Company or any of its subsidiaries is required, under applicable law or
under any Employee Plan or any agreement relating to any Employee Plan to
which the Company or any of its subsidiaries is a party, to have paid as
contributions thereto as of the last day of the most recent fiscal year of
such Employee Plan ended prior to the date hereof. Benefits under all
Employee Plans are as represented and have not been increased subsequent
to the date as of which documents have been provided.
(ix) There are no actions, suits or claims pending, or to the
best knowledge of the Company, threatened or anticipated (other than
routine claims for benefits) with respect to any Employee Plan.
(x) Except as set forth on Schedule 3.01(k) of the Disclosure
Letter, no Employee Plan provides for the payment of severance benefits
upon the termination of an employee's employment. No compensation or
benefit that is or will be payable in connection with the transactions
contemplated by this Agreement will be characterized as an "excess
parachute payment" within the meaning of Section 280G of the Code.
(xi) The Company has not made any commitment to establish any new
Employee Plan, to modify any Employee Plan or to increase benefits or
compensation of employees or former employees of the Company (except for
normal increases in compensation consistent with past practices or as
disclosed in Schedule 3.01(k) of the Disclosure Letter), nor has any
intention to do so been communicated to employees or former employees of
the Company.
(l) Employment Relations and Agreements. (i) There is no
labor strike, dispute, slowdown or stoppage actually pending or, to the
best knowledge of the Company, threatened against or involving the Company
or any of its subsidiaries; (ii) no representation question exists
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respecting the employees of the Company or any of its subsidiaries and
(iii) no collective bargaining agreement is currently being negotiated by
the Company or any of its subsidiaries and neither the Company nor any of
its subsidiaries is a party to a collective bargaining agreement. Except
as disclosed in Schedule 3.01(1) of the Disclosure Letter, there exist no
employment, consulting, severance, indemnification agreements or deferred
compensation agreements between the Company and any director, officer or
employee of the Company or any agreement that would give any Person the
right to receive any payment from the Company as a result of the Offer or
the Merger.
(m) Taxes. The Company has filed or caused to be filed, within
the times and in the manner prescribed by law, all United States federal,
state, local and foreign tax returns and tax reports which are required to
be filed by, or with respect to, and are material to, the Company or any of
its subsidiaries. Such returns and reports reflect accurately all material
liability for taxes of the Company and its subsidiaries for the periods
covered thereby. All material federal, state, local and foreign income,
profits, franchise, sales, use, occupancy and excise taxes and other
material taxes, assessments, duties, fees, levies, imports or other
governmental charges (including any interest and penalties thereon) and any
liability for such amounts as a result either of being a member of a
combined, consolidated, unitary or affiliated group or of a contractual
obligation to indemnify any Person ("Taxes") payable by, or due from, the
Company or any of its subsidiaries have been fully paid or adequately
disclosed and fully provided for on the financial statements of the Company
and its subsidiaries in accordance with generally accepted accounting
principles. The United States federal income Tax liability of the Company
and its subsidiaries has been finally determined for all fiscal years to
and including the fiscal year ended September 26, 1993. No audit or other
examination, pending or, to the best knowledge of the Company, threatened
litigation or appeal of any Tax return or Tax liability of the Company or
any of its subsidiaries is currently in progress (or to the best knowledge
of the Company scheduled as of the date hereof to be conducted). There are
no outstanding agreements or waivers extending the statutory period of
limitation applicable to any Tax return of the Company or any of its
subsidiaries. Except as provided in
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Schedule 3.01(m) of the Disclosure Letter, neither the Company nor any of
its subsidiaries has been included in any "consolidated," "unitary" or
"combined" return provided for under the law of the United States, any
foreign jurisdiction or any state or locality with respect to Taxes for
any taxable period for which the statute of limitations has not expired.
All material Taxes relating to the income, properties or operations of the
Company and its subsidiaries which the Company or any of its subsidiaries
were required by law to withhold or collect have been duly withheld or
collected, and have been timely paid over to the proper authorities to the
extent due and payable. There are no tax sharing, allocation,
indemnification or similar agreements in effect as between the Company or
any predecessor or affiliate thereof and any other party (including any of
their predecessors or affiliates) under which Parent, Sub, the Company or
any of the Company's subsidiaries, are liable or could be liable for any
Taxes or other claims of any party. The Company is not a "United States
real property holding corporation" within the meaning of Section 897(c)(2)
of the Code.
(n) Liabilities. Except as set forth in the Commission Filings
or as disclosed in Schedule 3.01(n) of the Disclosure Letter or as
otherwise contemplated by this Agreement, neither the Company nor any of
its subsidiaries has any material outstanding claims, liabilities or
indebtedness, contingent or otherwise, that would be required to be
disclosed in the Company's consolidated financial statements prepared in
accordance with generally accepted accounting principles applied on a
consistent basis, other than liabilities incurred subsequent to September
25, 1994 in the ordinary course of business not involving borrowings by the
Company. Neither the Company nor any of its subsidiaries is in default in
respect of the material terms and conditions of any indebtedness or other
agreement.
(o) Intellectual Properties. In the operation of its business
the Company and its subsidiaries have used, and currently use, domestic and
foreign patents, patent applications, patent licenses, software licenses,
know-how licenses, trade names, trademarks, copyrights, service marks,
trademark registrations and applications, service mark registrations and
applications, copyright registrations and applications, (collectively, the
"Intellectual Property") and unpatented inventions,
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trade secrets and other confidential proprietary information (collectively,
the "Know-How"). Schedule 3.01(o) of the Disclosure Letter attached hereto
contains an accurate and complete list of all Intellectual Property which,
to the best knowledge of the Company, is of material importance to the
operation of the business of the Company or any of its subsidiaries. Unless
otherwise indicated in Schedule 3.01(o) of the Disclosure Letter the
Company (or the subsidiary indicated) owns the entire right, title and
interest in and to the Intellectual Property listed on Schedule 3.01(o) of
the Disclosure Letter used in the operation of its business (including,
without limitation, the exclusive right to use and license the same) and
each item constituting part of the Intellectual Property which is owned by
the Company or a subsidiary and listed on Schedule 3.01(o) of the
Disclosure Letter has been, to the extent indicated in Schedule 3.01(o) of
the Disclosure Letter, duly registered with, filed in or issued by, as the
case may be, the United States Patent and Trademark Office or such other
government entities, domestic or foreign, as are indicated in Schedule
3.01(o) of the Disclosure Letter and such registrations, filings and
issuances remain in full force and effect. Except as stated in such
Schedule 3.01(o) of the Disclosure Letter, there are no pending or to the
best knowledge of the Company, threatened proceedings or litigation which
would have a material adverse effect on the Company's use of such
Intellectual Property or other material adverse claims affecting or with
respect to the Intellectual Property or the Know-How. Schedule 3.01(o) of
the Disclosure Letter lists all notices or claims currently pending or
received by the Company or any of its subsidiaries during the past two
years which claim infringement, contributory infringement, inducement to
infringe, misappropriation or breach by the Company or any of its
subsidiaries of any domestic or foreign patents, patent applications,
patent licenses and know-how licenses, trade names, trademark registrations
and applications, service marks, copyrights, copyright registrations or
applications, trade secrets or other confidential proprietary information.
Except as set forth in any Schedule hereto, there is, to the best knowledge
of the Company, no reasonable basis upon which a claim may be asserted
against the Company or any of its subsidiaries, for infringement,
contributory infringement, inducement to infringe, misappropriation or
breach of any domestic or foreign patents, patent applications, patent
licenses,
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know-how licenses, trade names, trademark registrations and applications,
common law trademarks, service marks, copyrights, copyright registrations
or applications, trade secrets or other confidential proprietary
information. To the best knowledge of the Company, except as indicated on
Schedule 3.01(o) of the Disclosure Letter, no Person is infringing the
Intellectual Property or the Know-How.
(p) Proxy Statement, Schedule 14D-9 and Schedule 14D-1. The
definitive proxy statement and related materials, if required, to be
furnished to the holders of Common Stock in connection with the Merger
pursuant to Section 4.04 hereof (the "Proxy Statement"), insofar as they
relate to the Company or its subsidiaries or information supplied by the
Company for inclusion therein, will comply in all material respects with
the Exchange Act and the rules and regulations thereunder and any other
applicable laws. If at any time prior to the Effective Time any event
with respect to the Company or any of its subsidiaries, or with respect to
information supplied by the Company for inclusion in the Proxy Statement,
occurs which should be described in an amendment or supplement to the
Proxy Statement, the Company will file and disseminate, as required, an
amendment or supplement which complies in all material respects with the
Exchange Act and the rules and regulations thereunder and any other
applicable laws. Prior to its filing with the Commission, the amendment
or supplement shall be delivered to Parent and Sub and their counsel.
None of the information supplied by the Company for inclusion or
incorporation by reference in (i) the documents pursuant to which the
Offer will be made, including a Tender Offer Statement on Schedule 14D-1
(the "Schedule 14D-1"), and Offer to Purchase and related letter of
transmittal (the "Offer Documents") or (ii) the Proxy Statement, will, in
the case of the Offer Documents, at the respective times the Offer
Documents are filed with the Commission, or in the case of the Proxy
Statement at the date such information is supplied and at the Effective
Time, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made, in light of
the circumstance under which they are made, not misleading. None of the
information in the Schedule 14D-9, at the respective times the Schedule
14D-9 is filed with the Commission, will contain any untrue statement of a
material fact or omit to state a material fact necessary
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to make the statements made, in light of the circumstances under which
they are made, not misleading. Notwithstanding the foregoing, no
representation or warranty is made with respect to any information with
respect to Parent of Sub or its officers, directors or affiliates provided
to the Company by Parent or Sub in writing for inclusion in the Schedule
14D-9. The Schedule 14D-9 will comply in all material respects with the
Exchange Act and the rules and regulations thereunder and any other
applicable laws. If at any time prior to the expiration or termination of
the Offer any event occurs which should be described in an amendment or
supplement to the Schedule 14D-9 or any amendment or supplement thereto,
the Company will file and disseminate, as required, an amendment or
supplement which complies in all material respects with the Exchange Act
and the rules and regulations thereunder and any other applicable laws.
Prior to its filing with the Commission, the amendment or supplement shall
be delivered to Parent and Sub and their counsel.
(q) Broker's or Finder's Fee. Except for Donaldson, Lufkin &
Jenrette Securities Corporation (whose fees and expenses will be paid by
the Company in accordance with the Company's agreement with such firm, a
true and correct copy of which has been previously delivered to Parent by
the Company), no agent, broker, Person or firm acting on behalf of the
Company is, or will be, entitled to any fee, commission or broker's or
finder's fees from any of the parties hereto, or from any Person
controlling, controlled by, or under common control with any of the
parties hereto, in connection with this Agreement or any of the
transactions contemplated hereby.
(r) Environmental Laws and Regulations. Except as disclosed in
the Commission Filings or in Schedule 3.01(r) of the Disclosure Letter or
as would not, individually or in the aggregate, have a material adverse
effect on the Condition of the Company and its subsidiaries taken as a
whole, (i) the Company and its subsidiaries are in compliance with all
Environmental Laws; (ii) Hazardous Substances requiring remediation under
any Environmental Law have not been released or disposed of on any real
property owned or operated by the Company or any subsidiary of the Company;
(iii) the Company and its subsidiaries are not subject to liability for any
off-site disposal or contamination; (iv) the Company and
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its subsidiaries have not received any Environmental Claims under any
Environmental Law; and (v) there are no facts, conditions, occurrences or
circumstances regarding the Company, its subsidiaries or any property
owned or operated by the Company or its subsidiaries that could reasonably
be expected (a) to form the basis of any Environmental Claim against the
Company, its subsidiaries or any property owned or operated by the Company
or its subsidiaries, or (b) to cause such property to be subject to any
restrictions on the ownership, use, or transferability of any such
property under any Environmental Law. "Environmental Law" means any
applicable law, regulation, order or decree relating to air, water, land,
noise, odor, Hazardous Substances or the protection of human health or the
environment. "Hazardous Substance" means any hazardous or toxic material,
substance, waste, pollutant or contaminant as defined under any
Environmental Law, in any concentration, including, without limitation,
any petroleum or petroleum products, friable asbestos or polychlorinated
biphenyls. "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law (hereinafter "Claims"),
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable
Environmental Law and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Substances or arising from
alleged injury or threat of injury to human health, safety or the
environment.
(s) State Takeover Statutes. The Board of Directors of the
Company has approved the Offer, the Merger, this Agreement and the entering
into, and performance, by Parent and Sub of the Tender Agreement and such
approval is sufficient to render inapplicable to the Offer, the Merger,
this Agreement and the entering into, and performance, by Parent and Sub of
the Tender Agreement and the other transactions contemplated by this
Agreement and the Tender Agreement, the provisions of Section 203 of the
Delaware General Corporation Law.
(t) Voting Requirements. Unless the Merger is consummated in
accordance with the provisions of Section
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253 of the Delaware General Corporation Law, the affirmative vote of the
holders of a majority of all the shares of Company Common Stock entitled
to be cast approving this Agreement is the only vote of the holders of any
class or series of the Company's capital stock necessary to approve this
Agreement and the transactions contemplated by this Agreement.
(u) Rights Agreement. (i) The Company and the Board of
Directors of the Company have taken and will, until the termination, if
any, of this Agreement pursuant to Section 6.01, maintain in effect all
necessary action to (i) render the Rights Agreement inapplicable with
respect to the Offer, the Merger, the entering into, and performance, by
Parent and Sub of the Tender Agreement and the other transactions
contemplated by this Agreement and (ii) ensure that (y) neither Parent nor
Sub nor any of their Affiliates (as defined in the Rights Agreement) or
Associates (as defined in the Rights Agreement) is considered to be an
Acquiring Person (as defined in the Rights Agreement) and (z) the
provisions of the Rights Agreement, including the occurrence of a
Distribution Date (as defined in the Rights Agreement), are not and shall
not be triggered by reason of the announcement or consummation of the
Offer, the Merger, the Tender Agreement or the consummation of any of the
other transactions contemplated by this Agreement. The Company has
delivered to Parent a complete and correct copy of the Rights Agreement as
amended and supplemented to the date of this Agreement.
(v) Opinion of Financial Advisor. The Company has received the
opinion of Donaldson, Lufkin & Jenrette Securities Corporation, to the
effect that, as of the date of this Agreement, the consideration to be
received in the Offer and the Merger by the Company's stockholders is fair
to the Company's stockholders from a financial point of view, and a
complete and correct signed copy of such opinion has been, or promptly upon
receipt thereof will be, delivered to Parent.
3.02 Representations and Warranties of Parent and Sub. Each of
Parent and Sub represents and warrants to the Company as follows:
(a) Due Organization; Good Standing and Corporate Power.
Each of Parent and Sub is a corporation duly
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organized, validly existing and in good standing under the laws of the
State of Delaware.
(b) Authorization and Validity of Agreement. Each of Parent
and Sub has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement by Parent and Sub, and the consummation by each of them
of the transactions contemplated hereby, have been duly authorized by the
Boards of Directors of Parent and Sub. No other corporate action on the
part of either of Parent or Sub is necessary to authorize the execution,
delivery and performance of this Agreement by each of Parent and Sub and
the consummation of the transactions contemplated hereby (other than the
approval of this Agreement by the sole stockholder of Sub, if required by
Delaware General Corporation Law). This Agreement has been duly executed
and delivered by each of Parent and Sub and is a valid and binding
obligation of each of Parent and Sub, enforceable against each of Parent
and Sub in accordance with its terms, except that such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally, and general
equitable principles.
(c) Consents and Approvals; No Violations. Assuming (i) the
filings required under the HSR Act are made and the waiting period
thereunder has been terminated or has expired, (ii) the requirements of
the Exchange Act relating to the Proxy Statement and the Offer are met,
(iii) the filing of the Certificate of Merger and other appropriate merger
documents, if any, as required by the laws of the State of Delaware is
made and (iv) approval of this Agreement by the sole stockholder of Sub if
required by the laws of the State of Delaware the execution and delivery
of this Agreement by Parent and Sub and the consummation by Parent and Sub
of the transactions contemplated hereby will not: (1) violate any
provision of the Certificate of Incorporation or By-Laws of Parent or
Sub; (2) violate any statute, ordinance, rule, regulation, order or decree
of any court or of any governmental or regulatory body, agency or
authority applicable to Parent or Sub or by which either of their
respective properties or assets may be bound; (3) require any filing with,
or permit, consent or approval
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of, or the giving of any notice to any governmental or regulatory body,
agency or authority; or (4) result in a violation or breach of, conflict
with, constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or
acceleration) under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of
the Parent, Sub or any of their subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease or other instrument or obligation to
which Parent or Sub or any of their subsidiaries is a party, or by which
they or their respective properties or assets may be bound except in the
case of clauses (2), (3) and (4) above for such filings, permits,
consents, approvals or violations, which could not reasonably be expected
to have a material adverse effect on the Condition of the Parent and Sub,
taken as a whole, or could not be reasonably likely to prevent or
materially delay consummation of the transactions contemplated by this
Agreement.
(d) Offer Documents, Schedule 14D-9 and Proxy Statement. The
Offer Documents will comply in all material respects with the Exchange Act
and the rules and regulations thereunder and any other applicable laws.
If at any time prior to the expiration or termination of the Offer any
event occurs which should be described in an amendment or supplement to
the Schedule 14D-1 or any amendment or supplement thereto, Sub will file
and disseminate, as required, an amendment or supplement which complies in
all material respects with the Exchange Act and the rules and regulations
thereunder and any other applicable laws. Prior to its filing with the
Commission, the amendment or supplement shall be delivered to the Company
and its counsel. The written information supplied or to be supplied by
Parent and Sub for inclusion in the Proxy Statement and the Schedule 14D-9
of the Company will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
made, in light of the circumstances under which they are made, not
misleading. Notwithstanding the foregoing, no representation or warranty
is made with respect to any information with respect to the Company or its
officers, directors and affiliates provided to Parent or Sub by
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the Company in writing for inclusion in the Offer Documents or amendments
or supplements thereto.
(e) Broker's or Finder's Fee. Except for CS First Boston (whose
fees and expenses as financial advisor to Parent and Sub will be paid by
Parent or Sub in accordance with the Parent's agreement with such firm, a
true and correct copy of which has been previously delivered to the Company
by Parent), no agent, broker, Person or firm acting on behalf of Parent or
Sub is, or will be, entitled to any fee, commission or broker's or finder's
fees from any of the parties hereto, or from any Person controlling,
controlled by, or under common control with any of the parties hereto, in
connection with this Agreement or any of the transactions contemplated
hereby.
(f) Financing. Parent has available to it, and shall provide Sub
with, the funds necessary to consummate the Offer and the Merger and the
transactions contemplated thereby in accordance with the terms hereof and
thereof.
(g) Common Stock Ownership. As of the date hereof, none of
Parent or its subsidiaries beneficially owns (within the meaning of Rule
13d-3 under the Exchange Act) any shares of Common Stock.
ARTICLE IV
TRANSACTIONS PRIOR TO CLOSING DATE
4.01 Access to Information Concerning Properties and Records.
During the period commencing on the date hereof and ending on the Closing Date,
the Company shall, and shall cause each of its subsidiaries to, upon reasonable
notice, afford Parent and Sub, and their respective counsel, accountants,
consultants and other authorized representatives, reasonable access during
normal business hours to the employees, properties, books and records of the
Company and its subsidiaries in order that they may have the opportunity to
make such investigations as they shall desire of the affairs of the Company and
its subsidiaries; such investigation shall not, however, affect the
representations and warranties made by the Company in this Agreement. The
Company shall furnish promptly to Parent and Sub (a) a copy of each report,
schedule, registration statement and other document filed by it or its
subsidiaries during such period pursuant to the require-
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ments of Federal or state securities laws and (b) all other information
concerning its or its subsidiaries' business, properties and personnel as
Parent and Sub may reasonably request. The Company agrees to cause its
officers and employees to furnish such additional financial and operating data
and other information and respond to such inquiries as Parent and Sub shall
from time to time request.
4.02 Confidentiality. Information obtained by Parent and Sub
pursuant to Section 4.01 hereof shall be subject to the provisions of the
Confidentiality Agreement between the Company and Parent dated January 23, 1995
(the "Parent Confidentiality Agreement").
4.03 Conduct of the Business of the Company Pending the
Closing Date. The Company agrees that, except as permitted, required or
specifically contemplated by, or otherwise described in, this Agreement or
otherwise consented to or approved in writing by Parent, during the period
commencing on the date hereof and ending on the Closing Date:
(a) The Company and each of its subsidiaries will conduct
their respective operations only according to their ordinary and usual
course of business consistent with past practice and will use their
reasonable best efforts to preserve intact their respective business
organization, keep available the services of their officers and employees
and maintain satisfactory relationships with licensors, suppliers,
distributors, clients and others having business relationships with them;
(b) Neither the Company nor any of its subsidiaries shall (i)
make any change in or amendment to its Restated Certificate of
Incorporation or By-Laws (or comparable governing documents); (ii) issue
or sell any shares of its capital stock (other than in connection with the
exercise of Options outstanding on the date hereof) or any of its other
securities, or issue any securities convertible into, or options, warrants
or rights to purchase or subscribe to, or enter into any arrangement or
contract with respect to the issuance or sale of, any shares of its
capital stock or any of its other securities, or make any other changes in
its capital structure; (iii) sell or pledge or agree to sell or pledge any
stock owned by it in any of its subsidiaries; (iv) declare, pay, set aside
or make any dividend or other distribution or payment with respect to, or
split, combine, redeem or reclassify, any shares of its capital
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stock; (v) enter into any contract or commitment with respect to capital
expenditures in excess of $200,000 for items or projects which were not
included in the Company's 1995 capital plan previously approved by the
Company's Board of Directors without first informing and consulting with
Parent's Chief Executive Officer or enter into any other material contract
except contracts in the ordinary course of business, (vi) acquire a
material amount of assets (other than inventory) or securities or release
or relinquish any material contract rights; (vii) adopt or amend any
Employee Plan or non-employee benefit plan or program, employment
agreement, license agreement or retirement agreement, or, except in the
ordinary course of business consistent with past practice, pay any bonus
or contingent or other extraordinary compensation; (viii) other than in
the ordinary course of business consistent with past practice, transfer,
lease, license, guarantee, sell, mortgage, pledge, dispose of, encumber or
subject to any lien, any assets or incur or modify any indebtedness or
other liability or issue any debt securities or assume, guarantee or
endorse or otherwise as an accommodation become responsible for the
obligations of any person; (ix) agree to the settlement of any material
claim or litigation; (x) make any material tax election or settle or
compromise any material tax liability; (xi) permit any insurance policy
naming it as beneficiary or a loss payable payee to be cancelled without
notice to Parent; (xii) make any material change in its method of
accounting or (xiii) agree, in writing or otherwise, to take any of the
foregoing actions; and
(c) The Company shall not, and shall not permit any of its
subsidiaries to, (i) take any action, engage in any transaction or enter
into any agreement which would cause any of the representations or
warranties set forth in Section 3.01 hereof to be untrue as of the Closing
Date, or (ii) purchase or acquire, or offer to purchase or acquire, any
shares of capital stock of the Company.
4.04 Proxy Statement. If stockholder approval of the Merger
is required by law, as promptly as practicable, the Company will prepare and
file a preliminary Proxy Statement with the Commission and will use its best
efforts to respond to the comments of the Commission in connection therewith
and to furnish all information required to prepare the definitive Proxy
Statement (including, without limit-
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ation, financial statements and supporting schedules and certificates and
reports of independent public accountants). Promptly after the expiration or
termination of the Offer, if required by the Delaware General Corporation Law
in order to consummate the Merger, the Company will cause the definitive Proxy
Statement to be mailed to the stockholders of the Company and, if necessary,
after the definitive Proxy Statement shall have been so mailed, promptly
circulate amended, supplemental or supplemented proxy material and, if required
in connection therewith, resolicit proxies. The Company will not use any proxy
material in connection with the meeting of its stockholders without Parent's
prior approval.
4.05 Stockholder Approval. Promptly after the expiration or
termination of the Offer, if required by Delaware General Corporation Law in
order to consummate the Merger, the Company, acting through its Board of
Directors, shall, in accordance with applicable law, call a special meeting of
the holders of Common Stock for the purpose of voting upon this Agreement and
the Merger and the Company agrees that this Agreement and the Merger shall be
submitted at such special meeting. The Company shall use its reasonable
efforts to solicit from its stockholders proxies, and shall take all other
action necessary and advisable, to secure the vote of stockholders required by
applicable law to obtain the approval for this Agreement. Subject to Section
4.07 of this Agreement, the Company agrees that it will include in the Proxy
Statement the recommendation of its Board of Directors that holders of Common
Stock approve and adopt this Agreement and approve the Merger. Parent will
cause all shares of Common Stock owned by Parent and its subsidiaries to be
voted in favor of the Merger.
4.06 Reasonable Best Efforts. Subject to the terms and
conditions provided herein, each of the Company, Parent and Sub shall, and the
Company shall cause each of its subsidiaries to, cooperate and use their
respective reasonable best efforts to take, or cause to be taken, all
appropriate action, and to make, or cause to be made, all filings necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, including,
without limitation, their respective reasonable best efforts to obtain, prior
to the Closing Date, all licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and
parties to contracts with the Company and its subsidiaries as are necessary for
consummation of the transactions contemplated by this Agreement and to fulfill
the
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conditions to the Offer and the Merger; provided, however, that no loan
agreement or contract for borrowed money shall be repaid except as currently
required by its terms, in whole or in part, and no material contract shall be
amended to increase the amount payable thereunder or otherwise to be materially
more burdensome to the Company or any of its subsidiaries in order to obtain
any such consent, approval or authorization without first obtaining the written
approval of Parent and Sub.
4.07 No Solicitation of Other Offers. (a) Neither the
Company nor any of its subsidiaries, shall, directly or indirectly, take (and
the Company shall not authorize or permit its or its subsidiaries, officers,
directors, employees, representatives, consultants, investment bankers,
attorneys, accountants or other agents or affiliates, to so take) any action to
(i) solicit or initiate the submission of any Acquisition Proposal, (ii) enter
into an agreement for the sale or other disposition by the Company or any of
its subsidiaries of a material amount of assets or a sale of shares of capital
stock whether by merger or other business combination or tender or exchange
offer or (iii) participate in any way in discussions or negotiations with, or,
furnish any information to, any Person (other than Parent or Sub) in connection
with, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal; provided, however, that the Company may participate in
discussions or negotiations with or furnish information to any third party
which proposes a transaction which the Board of Directors of the Company
reasonably believes will result in an Acquisition Proposal, if the Board of
Directors believes (and has been advised by counsel) that failing to take such
action would constitute a breach of its fiduciary duties. In addition, neither
the Board of Directors of the Company nor any Committee thereof shall withdraw
or modify in a manner adverse to Parent the approval and recommendation of the
Offer and this Agreement or approve or recommend any Acquisition Proposal,
provided that the Company may recommend to its shareholders an Acquisition
Proposal and in connection therewith withdraw or modify its approval or
recommendation of the Offer or the Merger if (i) the Board of Directors of the
Company has determined that the Acquisition Proposal is a Superior Proposal,
(ii) all the conditions to the Company's right to terminate this Agreement in
accordance with Section 6.01(e) have been satisfied (including the payment of
the amount required by Section 7.01), (iii) simultaneously with such
withdrawal, modification or recommendation, this
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Agreement is terminated in accordance with Section 6.01(e) and (iv) the
Acquisition Proposal does not provide for any breakup fee or other inducement
to the acquiror other than reimbursement of documented out-of-pocket expenses
incurred in connection with such Acquisition Proposal. Any actions permitted
under, and taken in compliance with, this Section 4.07 shall not be deemed a
breach of any other covenant or agreement of such party contained in this
Agreement.
"Acquisition Proposal" shall mean any proposed merger or other
business combination, sale or other disposition of any material amount of
assets, sale of shares of capital stock, tender offer or exchange offer or
similar transactions involving the Company or any of its subsidiaries.
"Superior Proposal" shall mean a bona fide proposal made by a third party to
acquire all of the outstanding shares of the Company pursuant to a tender offer
or a merger, or to purchase all or substantially all of the assets of the
Company on terms which a majority of the members of the Board of Directors of
the Company determines in its good faith reasonable judgment (based on the
advice of its financial and legal advisors) to be more favorable to the Company
and its shareholders than the transactions contemplated hereby, and which does
not provide for any breakup fee or other inducement to the acquiror other than
reimbursement of documented out-of-pocket expenses incurred in connection with
the Superior Proposal .
(b) In addition to the obligations of the Company set forth
in paragraph (a), the Company shall promptly advise Parent of any request for
information or of any Acquisition Proposal, or any proposal with respect to any
Acquisition Proposal, the material terms and conditions of such request or
takeover proposal, and the identity of the person making any such takeover
proposal or inquiry. The Company will use its reasonable best efforts to keep
Parent informed of the status and details (including amendments or proposed
amendments) of any such request, takeover proposal or inquiry.
(c) Immediately following the purchase of Shares pursuant to
the Offer, the Company will request each person which has heretofore executed a
confidentiality agreement in connection with its consideration of acquiring the
Company or any portion thereof (the "Confidentiality Agreements") to return all
confidential information heretofore furnished to such person by or on behalf of
the Company.
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4.08 Notification of Certain Matters. The Company shall give
prompt notice to Parent of: (a) any notice of, or other communication relating
to, a material default or event that, with notice or lapse of time or both,
would become a material default, received by the Company or any of its
subsidiaries subsequent to the date of this Agreement and prior to the
Effective Time, under any material contract to which the Company or any of its
subsidiaries is a party or is subject; and (b) any material adverse change in
the Condition, of the Company and its subsidiaries taken as a whole or the
occurrence of any event which is reasonably likely to result in any such
change. Each of the Company and Parent shall give prompt notice to the other
party of any notice or other communication from any third party alleging that
the consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement.
4.09 HSR Act. The Company and Parent shall, within five
business days from the date of this Agreement, file Notification and Report
Forms under the HSR Act with the Federal Trade Commission (the "FTC") and the
Antitrust Division of the Department of Justice (the "Antitrust Division") and
shall use their best efforts to respond as promptly as practicable to all
inquiries received from the FTC or the Antitrust Division for additional
information or documentation.
4.10 Employee Benefits. Parent agrees that, during the period
commencing at the Effective Time and ending on the second anniversary thereof,
the employees of the Company and its subsidiaries will continue to be provided
with employee benefit plans (other than stock option, employee stock ownership
or other plans involving the potential issuance of securities of the Company or
of Parent) which in the aggregate are substantially comparable to those
currently provided by the Company and its subsidiaries to such employees.
Parent will, and will cause the Surviving Corporation to, honor employee (or
former employee) benefit obligations and contractual rights existing as of the
Effective Time and all employment, incentive and deferred compensation or
severance agreements, plans or policies adopted by the Board of Directors of
the Company (or any committee thereof) prior to the date hereof in accordance
with their terms other than stock option, employee stock ownership or other
plans involving the potential issuance of securities of the Company or of
Parent.
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4.11 Directors' and Officers' Insurance; Indemnification. (a)
The certificate of incorporation and the by-laws of the Surviving Corporation
shall contain the provisions with respect to indemnification and exculpation
from liability set forth in the Company's certificate of incorporation and
by-laws on the date of this Agreement, which provisions shall not be amended,
repealed or otherwise modified for a period of six years from the Effective
Time in any manner that would adversely affect the rights thereunder of
individuals who on or prior to the Effective Time were directors, officers,
employees or agents of the Company, unless such modification is required by
law.
(b) For five years from the Effective Time, the Surviving
Corporation shall either (x) maintain in effect the Company's current
directors' and officers' liability insurance covering those persons who are
currently covered on the date of this Agreement by the Company's directors' and
officers' liability insurance policy (a copy of which has been heretofore
delivered to Parent) (the "Indemnified Parties"); provided, however, that in no
event shall Parent be required to expend in any one year an amount in excess of
200% of the annual premiums currently paid by the Company for such insurance
which the Company represents to be $336,000 for the twelve month period ended
October 1, 1995; and; provided further, that if the annual premiums of such
insurance coverage exceed such amount, the Surviving Corporation shall be
obligated to obtain a policy with the greatest coverage available for a cost
not exceeding such amount; provided further, that the Surviving Corporation may
substitute for such Company policies, policies with at least the same coverage
containing terms and conditions which are no less advantageous and provided
that said substitution does not result in any gaps or lapses in coverage with
respect to matters occurring prior to the Effective Time or (y) cause the
Parent's, directors' and officers' liability insurance then in effect to cover
those persons who are covered on the date of this Agreement by the Company's
directors' and officers' liability insurance policy with respect to those
matters covered by the Company's directors' and officers' liability policy.
(c) Parent agrees, from and after the date of purchase of
shares of Common Stock pursuant to the Offer, to indemnify all Indemnified
Parties to the fullest extent permitted by applicable law with respect to all
acts and omissions arising out of such individuals' services as officers,
directors, employees or agents of the Company or
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any of its subsidiaries, occurring prior to the Effective Time including,
without limitation, the transactions contemplated by this Agreement. Without
limitation of the foregoing, in the event any such Indemnified Party is or
becomes involved in any capacity in any action, proceeding or investigation in
connection with any matter, including without limitation, the transactions
contemplated by this Agreement, occurring prior to, and including, the
Effective Time, Parent, from and after the date of purchase of shares of Common
Stock pursuant to the Offer, will pay as incurred such Indemnified Party's
reasonable legal and other expenses (including the cost of any investigation
and preparation) incurred in connection therewith. Subject to Section 4.11(d)
below, Parent shall pay all reasonable expenses, including attorneys' fees,
that may be incurred by any Indemnified Party in enforcing this Section 4.11 or
any action involving an Indemnified Party resulting from the transactions
contemplated by this Agreement. If the indemnity provided for in this Section
4.11 is not available with respect to any Indemnified Party, then the Surviving
Corporation and the Indemnified Party shall contribute to the amount payable in
such proportion as is appropriate to reflect relative faults and benefits.
(d) Any Indemnified Party wishing to claim indemnification
under paragraph (a) or (c) of this Section, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Parent
thereof. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) Parent
or the Surviving Corporation shall have the right, from and after the purchase
of shares of Common Stock pursuant to the Offer, to assume the defense thereof
and Parent shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof, (ii) the
Indemnified Parties will cooperate in the defense of any such matter and (iii)
Parent shall not be liable for any settlement effected without its prior
written consent; and provided further that Parent shall not have any
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall ultimately determine, and such determination shall have
become final, that the indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable law.
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4.12 Financing. Parent shall provide Sub with the funds
necessary to consummate the Offer and the Merger and the transactions
contemplated hereby in accordance with the terms hereof.
ARTICLE V
CONDITIONS PRECEDENT TO MERGER
5.01 Conditions Precedent to Obligations of Parent, Sub and the
Company. The respective obligations of Parent and Sub, on the one hand, and
the Company, on the other hand, to effect the Merger are subject to the
satisfaction or waiver (subject to applicable law) at or prior to the Effective
Time of each of the following conditions:
(a) Approval of Company's Stockholders. To the extent required
by applicable law, this Agreement and the Merger shall have been approved
and adopted by holders of a majority of the Common Stock of the Company in
accordance with applicable law (if required by applicable law) and the
Company's Certificate of Incorporation and By-Laws;
(b) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act applicable to the Merger shall have expired or been
terminated;
(c) Injunction. No preliminary or permanent injunction or other
order shall have been issued by any court or by any governmental or
regulatory agency, body or authority which prohibits the consummation of
the Offer or the Merger and the transactions contemplated by this
Agreement and which is in effect at the Effective Time, provided, however,
that, in the case of a decree, injunction or other order, each of the
parties shall have used reasonable efforts to prevent the entry of any
such injunction or other order and to appeal as promptly as possible any
decree, injunction or other order that may be entered;
(d) Payment for Common Stock. Sub shall have accepted for
payment and paid for the shares of Common Stock tendered pursuant to the
Offer; and
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<PAGE> 47
(e) Statutes. No statute, rule, regulation, executive order,
decree or order of any kind shall have been enacted, entered, promulgated
or enforced by any court or governmental authority which prohibits the
consummation of the Offer or the Merger or has the effect of making the
purchase of the Common Stock illegal.
5.02 Conditions Precedent to Obligations of Parent and Sub. The
obligations of Parent and Sub to effect the Merger are also subject to the
satisfaction or waiver, at or prior to the Effective Time, of the following
condition:
(a) Employee Stock Ownership Plan. The Company shall have
terminated the Club Car, Inc. Employee Stock Ownership Plan.
5.03 Conditions Precedent to Obligation of the Company. The
obligation of the Company to effect the Merger is also subject to the
satisfaction or waiver, at or prior to the Effective Time, of the following
condition:
(a) Performance by Parent and Sub. Each of the Parent and Sub
shall have performed in all material respects all obligations and
agreements, and complied in all material respects with all covenants and
conditions, contained in Sections 1.03 and 1.04 of this Agreement to be
performed or complied with by it prior to the Closing Date.
ARTICLE VI
TERMINATION AND ABANDONMENT
6.01 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned, at any time prior to the
Effective Time, whether before or after approval of the Merger by the Company's
stockholders:
(a) subject to the provisions of Section 1.04 hereof, by mutual
consent of the Company, on the one hand, and of Parent and Sub, on the
other hand;
(b) by either Parent, on the one hand, or the Company, on the
other hand, if any governmental or regulatory agency shall have issued an
order, decree or ruling or taken any other action permanently enjoining,
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restraining or otherwise prohibiting the acceptance for payment of, or
payment for, shares of Common Stock pursuant to the Offer or the Merger
and such order, decree or ruling or other action shall have become final
and nonappealable;
(c) by Parent, on the one hand, or the Company, on the other
hand, if the Effective Time shall not have occurred within eight months
after commencement of the Offer unless the Effective Time shall not have
occurred because of a material breach of any representation, warranty,
obligation, covenant, agreement or condition set forth in this Agreement
on the part of the party seeking to terminate this Agreement;
(d) by Parent, on the one hand, or the Company, on the other
hand, if the Offer is terminated or expires in accordance with its terms
without Sub having purchased any Common Stock thereunder due to a failure
of any of the conditions set forth in Annex A hereto to be satisfied,
unless such termination or expiration has been caused by or results from
the failure of the party seeking to terminate this Agreement to perform in
any material respect any of its respective covenants or agreements
contained in this Agreement;
(e) by either Parent, on the one hand, or the Company, on the
other hand, if the Board of Directors of the Company determines that an
Acquisition Proposal is a Superior Proposal and the Board believes (and
has been advised by counsel) that a failure to terminate this Agreement
and enter into an agreement to effect the Superior Proposal would
constitute a breach of its fiduciary duties; provided, however, the
Company may not terminate this Agreement pursuant to this Section 6.01(e)
unless (i) the Company has notified Parent and Sub in writing promptly
after receipt thereof, of the receipt of any Acquisition Proposal and
following notification by the Company of Parent and Sub of receipt of the
Acquisition Proposal the Company has fully cooperated with Parent,
including, without limitation, informing Parent of the terms and
conditions of such Acquisition Proposal (and any modification thereto),
and the identity of the Person making such Proposal, with the intent of
enabling the parties hereto to agree to a modification of the terms and
conditions of this Agreement so that the transactions contemplated hereby
may be effected and (ii) prior to such termination
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<PAGE> 49
Parent has received the amount set forth in Section 7.01 by wire transfer
in same day funds; and
(f) prior to the consummation of the Offer, by the Company,
if (i) any of the representations and warranties of Parent or Sub
contained in this Agreement were untrue or incorrect in any material
respect when made or have since become, and at the time of termination
remain, incorrect in any material respect, or (ii) Parent or Sub shall
have breached or failed to comply in any material respect with any of
their respective obligations under this Agreement, including, without
limitation, their obligation to commence the Offer within the time period
required by Section 1.01 of this Agreement.
6.02 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 6.01 hereof by Parent or Sub, on the one
hand, or the Company, on the other hand, written notice thereof shall forthwith
be given to the other party or parties specifying the provision hereof pursuant
to which such termination is made, and this Agreement shall become void and
have no effect, and there shall be no liability hereunder on the part of
Parent, Sub or the Company, except that Sections 3.01(q), 4.02, 7.01 and this
Section 6.02 hereof shall survive any termination of this Agreement. Nothing
in this Section 6.02 shall relieve any party to this Agreement of liability for
breach of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.01 Fees and Expenses. Except as provided in paragraph (b)
below, all costs and expenses incurred in connection with this Agreement and
the consummation of the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses.
(b) If this Agreement is terminated by Parent in accordance
with Section 6.01(d) because of the occurrence of any of the events set forth
in clause (iii)(g) or (h) of Annex A or if this Agreement is terminated by the
Company in accordance with Section 6.01(e), then the Company shall, within two
business days of such termination (except as required to be earlier paid in
accordance with Section 6.01(e)), pay to Parent in same day funds $7,250,000.
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7.02 Representations and Warranties. The respective
representations and warranties of the Company, on the one hand, and Parent and
Sub, on the other hand, contained herein or in any certificates or other
documents delivered prior to or at the Closing shall not be deemed waived or
otherwise affected by any investigation made by any party. Each and every such
representation and warranty shall expire with, and be terminated and
extinguished by, the Closing and thereafter none of the Company, Parent or Sub
shall be under any liability whatsoever with respect to any such representation
or warranty. This Section 7.02 shall have no effect upon any other obligation
of the parties hereto, whether to be performed before or after the Effective
Time.
7.03 Extension; Waiver. Subject to the provisions of Sections
1.01 or 1.03 hereof, at any time prior to the Effective Time, the parties
hereto, by action taken by or on behalf of the respective Boards of Directors
of the Company, Parent or Sub, may (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive
any inaccuracies in the representations and warranties contained herein by any
other applicable party or in any document, certificate or writing delivered
pursuant hereto by any other applicable party or (iii) waive compliance with
any of the agreements or conditions contained herein. Any agreement on the
part of any party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party.
7.04 Public Announcements. The Company, on the one hand, and
Parent and Sub, on the other hand, agree to consult promptly with each other
prior to issuing any press release or otherwise making any public statement
with respect to the transactions contemplated hereby, and shall not issue any
such press release or make any such public statement prior to such consultation
and review by the other party of a copy of such release or statement, unless
required by applicable law.
7.05 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in person
or mailed, certified or registered mail with postage prepaid, or sent by telex,
telegram or telecopier, as follows:
(a) if to the Company, to it at:
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<PAGE> 51
Club Car, Inc.
4152 Washington Road
P.O. Box 204658
Augusta, Georgia 30907
Attention: A. Montague Miller
with a copy to:
McGuire Woods Battle & Boothe
One James Center
901 East Cary Street
Richmond, Virginia 23219
Attention: Wellford L. Sanders, Jr., Esq.
with a copy to:
Kelso & Company
350 Park Avenue
21st Floor
New York, New York 10022
Attention: James J. Connors II, Esq.
(b) if to either Parent or Sub, to it at:
Clark Acquisition Sub, Inc.
c/o Clark Equipment Company
100 North Michigan Street
P.O. Box 7008
South Bend, Indiana 46634
Attention: Bernard D. Henely, Esq.
with a copy to:
White & Case
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr., Esq.
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery
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<PAGE> 52
unless if mailed, in which case on the third business day after the mailing
thereof except for a notice of a change of address, which shall be effective
only upon receipt thereof.
7.06 Entire Agreement. This Agreement, the Disclosure Letter,
the Parent Confidentiality Agreement and the annex and other documents referred
to herein or delivered pursuant hereto, collectively contain the entire
understanding of the parties hereto with respect to the subject matter
contained herein and supersede all prior agreements and understandings, oral
and written, with respect thereto.
7.07 Binding Effect; Benefit; Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties.
Nothing in this Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto or their respective successors and
permitted assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement, except for Section 4.11, which is intended to be for
the benefit of the persons referred to therein, and may be enforced by such
persons.
7.08 Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified and supplemented in writing by the
parties hereto in any and all respects before the Effective Time
(notwithstanding any stockholder approval), by action taken by the respective
Boards of Directors of Parent, Sub and the Company or by the respective
officers authorized by such Boards of Directors, provided, however, that after
any such stockholder approval, no amendment shall be made which by law requires
further approval by such stockholders without such further approval.
7.09 Further Actions. Each of the parties hereto agrees that,
subject to its legal obligations, it will use its reasonable best efforts to
fulfill all conditions precedent specified herein, to the extent that such
conditions are within its control, and to do all things reasonably necessary to
consummate the transactions contemplated hereby.
7.10 Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted
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<PAGE> 53
for convenience only, do not constitute a part of this Agreement and shall not
affect in any way the meaning or interpretation of this Agreement.
7.11 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
7.12 Applicable Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflict of laws
rules thereof.
7.13 Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
7.14 "Person" Defined. "Person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization, a group and a government or other department or
agency thereof.
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<PAGE> 54
f
IN WITNESS WHEREOF, each of Parent, Sub and the Company have
caused this Agreement to be executed by their respective officers thereunto
duly authorized, all as of the date first above written.
CLARK EQUIPMENT COMPANY
By /s/ Bernard D. Henely
-------------------------
Name: Bernard D. Henely
Title: Vice President
CLARK ACQUISITION SUB, INC.
By /s/ Paul R. Bowles
-------------------------
Name: Paul R. Bowles
Title: President
CLUB CAR, INC.
By /s/ G.H. Inman
-------------------------
Name: G.H. Inman
Title: Chairman and Chief
Executive Officer
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<PAGE> 55
ANNEX A
to
Agreement and
Plan of Merger
The capitalized terms used in this Annex A shall have the
meanings set forth in the Agreement to which it is annexed, except that the
term "Merger Agreement" shall be deemed to refer to the Agreement to which this
Annex A is appended and "Purchaser" shall be deemed to refer to Sub.
Notwithstanding any other provision of the Offer, Purchaser
shall not be required to accept for payment or subject to any applicable rules
and regulations of the SEC, including Rule 14e-1c under the Exchange Act, pay
for any shares of Common Stock tendered and may terminate or amend the Offer in
accordance with the Merger Agreement and may postpone the acceptance of, and
payment for, shares of Common Stock, if (i) there shall not have been validly
tendered and not withdrawn prior to the expiration of the Offer a number of
shares of Common Stock which represent a majority of the total voting power of
all shares of capital stock of the Company outstanding on a fully diluted
basis, (ii) any applicable waiting period under the HSR Act shall not have
expired or been terminated or (iii) at any time on or after the date of the
Merger Agreement and at or before the time of payment for any such shares of
Common Stock (whether or not any shares of Common Stock have theretofore been
accepted for
<PAGE> 56
ANNEX A
Page 2
payment or paid for pursuant to the Offer) any of the following shall occur:
(a) (x) there shall be threatened, instituted or pending any
action or proceeding by any government or governmental authority or
agency (i) challenging or seeking to, or which could reasonably be
expected to make illegal, impede, delay or otherwise directly or
indirectly restrain, prohibit or make materially more costly the Offer
or the Merger or seeking to obtain material damages, (ii) seeking to
prohibit or materially limit the ownership or operation by Parent or
Purchaser of all or any material portion of the business or assets of
the Company or any of its subsidiaries taken as a whole or to compel
Parent or Purchaser to dispose of or hold separately all or any
material portion of the business or assets of Parent or Purchaser or
the Company or any of its subsidiaries taken as a whole, or seeking to
impose any material limitation on the ability of Parent or Purchaser
to conduct its business or own such assets, (iii) seeking to impose
material limitations on the ability of Parent or Purchaser effectively
to exercise full rights of ownership of the shares of Common Stock,
including, without limitation, the right to vote any shares of Common
Stock acquired or owned by Purchaser or Parent on all matters properly
presented to the Company's stockholders, (iv) seeking to require
divestiture by Parent or Purchaser of any shares of Common Stock, or
(v) otherwise materially adversely affecting the Condition of the
Company and its subsidiaries taken as a whole; or (y) any court shall
have entered an order which is in effect and which (i) makes illegal,
impedes, delays or otherwise directly or indirectly restrains,
prohibits or makes materially more costly the Offer or the Merger,
(ii) prohibits or materially limits the ownership or operation by
Parent or Purchaser of all or any material portion of the business or
assets of the Company or any of its subsidiaries taken as a whole or
compels Parent or Purchaser to dispose of or hold separately all or
any material portion of the business or assets of Parent or Purchaser
or the Company or any of its subsidiaries taken as a whole, or imposes
any material limitation on the ability of Parent or Purchaser to
conduct
<PAGE> 57
ANNEX A
Page 3
its business or own such assets, (iii) imposes material limitations on
the ability of Parent or Purchaser effectively to exercise full rights
of ownership of the shares of Common Stock, including, without
limitation, the right to vote any shares of Common Stock acquired or
owned by Purchaser or Parent on all matters properly presented to the
Company's stockholders, (iv) requires divestiture by Parent or
Purchaser of any shares of Common Stock, or (v) otherwise materially
adversely affects the Condition of the Company and its subsidiaries
taken as a whole; provided, however, that in the case of a preliminary
injunction to the effect described in this subparagraph (y), the
provisions of this subparagraph (y) shall not be deemed to have been
triggered until the earlier of (X) the date on which such injunction
becomes final or (Y) the Company ceases its efforts to have such
preliminary injunction dissolved;
(b) there shall be any action taken, or any statute, rule,
regulation, legislation, interpretation, judgment, order or injunction
enacted, enforced, promulgated, amended, issued or deemed applicable
to (i) Parent, Purchaser, the Company or any subsidiary of the Company
or (ii) the Offer or the Merger, by any legislative body, court,
government or governmental, administrative or regulatory authority or
agency, domestic or foreign, other than the routine application of the
waiting period provisions of the HSR Act to the Offer or to the
Merger, which could reasonably be expected to directly or indirectly,
result in any of the consequences referred to in clauses (i) through
(v) of paragraph (a) (x) above;
(c) any change shall have occurred or been threatened (or any
condition, event or development shall have occurred or been threatened
involving a prospective change), that is reasonably likely to have a
material adverse effect on the business, properties, assets,
liabilities, operations, results of operations, conditions (financial
or otherwise) or prospects of the Company and its subsidiaries;
(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 over-
<PAGE> 58
ANNEX A
Page 4
the-counter market, (ii) any decline in either the Dow Jones
Industrial Average or the Standard & Poor's Index of 400 Industrial
Companies or in the New York Stock Exchange Composite Index in excess
of 20% measured from the close of business on the trading day next
preceding the date of the Merger Agreement, (iii) any material change
in United States or any other currency exchange rates or a suspension
of, or limitation on, the markets therefor, (iv) a declaration of a
banking moratorium or any suspension of payments in respect of banks
in the United States, or (v) a commencement or escalation of a war or
armed hostilities or other national or international calamity directly
or indirectly involving the United States;
(e) all consents, registrations, approvals, permits,
authorizations, notices, reports or other filings required to be
obtained or made by the Company, Parent or Purchaser with or from any
governmental or regulatory entity in connection with the execution,
delivery and performance of the Merger Agreement, the Offer and the
consummation of the transactions contemplated by the Merger Agreement
shall not have been made or obtained and such failure could reasonably
be expected to have a material adverse effect on the Condition of the
Company and any of its subsidiaries, taken as a whole or could be
reasonably likely to prevent or materially delay consummation of the
transactions contemplated by the Merger Agreement;
(f) any representation or warranty made by the Company in the
Merger Agreement shall be untrue or incorrect in any material respect;
(g) there shall have been a breach by the Company of any of
its covenants or agreements in any material respect contained in the
Merger Agreement;
(h) the Company's Board of Directors shall have withdrawn,
modified or amended in any respect adverse to Parent or Purchaser its
recommendation of the Offer or the Merger, or shall have resolved to
do so; or
<PAGE> 59
ANNEX A
Page 5
(i) the Merger Agreement shall have been terminated in
accordance with its terms; which, in the reasonable judgment of Purchaser, in
any such case and regardless of the circumstances giving rise to any such
condition, makes it inadvisable to proceed with such acceptance for payment or
payment.
The foregoing conditions (including those set forth in clauses
(i)-(iii) above) are for the sole benefit of Purchaser and may be asserted by
Purchaser, or may be waived by Purchaser, in whole or in part at any time and
from time to time in its sole discretion; provided, however, that without the
consent of the Company, Purchaser shall not waive the condition described in
clause (i) above. The failure by 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. Any determination by Purchaser concerning the events
described in this Annex A will be final and binding upon all parties.
<PAGE> 1
Exhibit (c)(2)
[Execution Copy]
STOCK TENDER AGREEMENT
AGREEMENT dated as of February 3, 1995, among Clark Equipment
Company, a Delaware corporation ("Parent"), Clark Acquisition Sub, Inc., a
Delaware corporation and a direct wholly-owned subsidiary of Parent ("Sub"),
and the other parties signatory hereto (each a "Stockholder," and collectively,
the "Stockholders").
W I T N E S S E T H :
WHEREAS, Parent, Sub and Club Car, Inc., a Delaware
corporation (the "Company"), have previously entered into an Agreement and Plan
of Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement), pursuant to
which Sub will be merged with and into the Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company
desire that as soon as practicable (and not later than five business days)
after the execution and delivery of the Merger Agreement, Sub commence a cash
tender offer to purchase all outstanding shares of Company Common Stock (as
defined in Section 1) including all of the Shares (as defined in Section 2)
owned beneficially by the Stockholders; and
WHEREAS, in connection with the Merger Agreement, Parent has
required that the Stockholders agree, and the Stockholders hereby agree, to
enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the
common stock, $.01 par value, of the Company.
<PAGE> 2
(b) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
2. Tender of Shares. So long as the Board of Directors
of the Company has not withdrawn its recommendation of the Offer (as defined in
the Merger Agreement) in accordance with Section 4.07 of the Merger Agreement,
each Stockholder hereby agrees validly to tender (and not to withdraw) pursuant
to and in accordance with the terms of the Offer, not later than the earlier of
(x) the fifth business day after commencement of the Offer pursuant to Section
1.01 of the Merger Agreement and Rule 14d-2 under the Exchange Act and (y) the
next succeeding business day after acquisition thereof, all shares of Company
Common Stock owned by such Stockholder on the date hereof and all shares of
Company Common Stock acquired after the date hereof and prior to the
termination of this Agreement (the Shares of Company Common Stock owned by such
Stockholder on the date hereof, such Stockholder's "Existing Shares," and
together with any shares of Company Common Stock acquired by such Stockholder
after the date hereof and prior to the termination of this Agreement whether
upon the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution or otherwise, the "Shares"). Each Stockholder hereby acknowledges
and agrees that the Sub's obligation to accept for payment and pay for Shares
in the Offer, including the Shares owned by such Stockholder, is subject to the
terms and conditions of the Offer.
3. Restriction on Transfer, Proxies and
Non-Interference. Except as applicable in connection with the transactions
contemplated by Section 2 hereof and so long as the Board of Directors of the
Company has not withdrawn its recommendation of the Offer in accordance with
Section 4.07 of the Merger Agreement, no Stockholder shall, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of such Stockholder's Shares or any interest therein; or (ii)
except as contemplated by this Agreement, grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares.
-2-
<PAGE> 3
4. Other Covenants, Representations and Warranties.
Each Stockholder hereby represents and warrants to Parent and Sub as follows:
(a) Ownership of Shares. On the date hereof, such
Stockholder is the owner of the number of Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto. On the date hereof, the Existing
Shares set forth opposite such Stockholder's name on Schedule I hereto
constitute all of the Shares owned by such Stockholder.
(b) Power; Binding Agreement. Such Stockholder has the
legal capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, stockholders agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
such Stockholder is Trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby. If such Stockholder is married and such
Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder's spouse, enforceable against such person in
accordance with its terms. Each of the Stockholders waives any rights he or it
may have under that certain Stockholders' Agreement, dated as of September 24,
1993, to the extent the terms thereof are inconsistent with the provisions of
this Agreement, including, without limitation, any notice provisions.
(c) No Encumbrances. Except as applicable in connection
with the transactions contemplated by Section 2 hereof such Stockholder's
Shares and the certificates representing such Shares are, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
-3-
<PAGE> 4
5. Stockholder Capacity. No person executing this
Agreement who is or becomes during the term hereof a director of the Company
makes any agreement or understanding herein in his or her capacity as such
director. Each Stockholder signs solely in his or her capacity as the owner
of, or the trustee of a trust whose beneficiaries are the owners of, such
Stockholder's Shares.
6. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
(b) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party, provided that Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(c) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
with respect to any one or more Stockholders, except upon the execution and
delivery of a written agreement executed by the relevant parties hereto;
provided that Schedule I hereto may be supplemented by Parent by adding the
name and other relevant information concerning any stockholder of the Company
who agrees to be bound by the terms of this Agreement without the agreement of
any other party hereto, and thereafter such added stockholder shall be treated
as a "Stockholder" for all purposes of this Agreement.
(d) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service, such as Federal
Express, providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
-4-
<PAGE> 5
If to Stockholder: At the addresses set forth on Schedule I hereto
copy to: Kelso & Company
350 Park Avenue
21st Floor
New York, New York 10022
Attention:
James J. Connors II, Esq.
copy to: McGuire Woods Battle & Boothe
One James Center
901 East Cary Street
Richmond, Virginia 23219
Attention:
Wellford L. Sanders, Jr., Esq.
If to Parent: Clark Equipment Company
100 North Michigan Street
P.O. Box 7008
South Bend, Indiana 46634
Attention:
Bernard D. Henely, Esq.
copy to: White & Case
1155 Avenue of the Americas
New York, New York 10036
Attention:
William F. Wynne, Jr., Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(e) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.
-5-
<PAGE> 6
(f) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or
in equity.
(g) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance
by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(i) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(j) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(k) Jurisdiction. Each party hereby irrevocably submits
to the exclusive jurisdiction of the Court of Chancery in the State of Delaware
or the United States District Court for the Southern District of New York or
any court of the State of New York located in the City of New York in any
action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that such
-6-
<PAGE> 7
consent to jurisdiction is solely for the purpose referred to in this paragraph
(l) and shall not be deemed to be a general submission to the jurisdiction of
said Courts or in the States of Delaware or New York other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
(l) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
(n) Expenses. Each party will pay its own expenses
incurred in connection with this Agreement.
(o) This Agreement shall terminate on the earlier of the
termination of the Merger Agreement or the date on which Sub accepts for
payment shares of Company Common Stock pursuant to the Offer.
IN WITNESS WHEREOF, each of Parent, Sub and the Company have
caused this Agreement to be executed by their respective officers thereunto
duly authorized, all as of the date first above written.
CLARK EQUIPMENT COMPANY
By /s/ Bernard D. Henely
-------------------------
Name: Bernard D. Henely
Title: Vice President
CLARK ACQUISITION SUB, INC.
By /s/ Paul R. Bowles
-------------------------
Name: Paul R. Bowles
Title: President
-7-
<PAGE> 8
KIA III-CLUB CAR, L.P.
By /s/ Frank T. Nickell
----------------------------
Name: Frank T. Nickell
Title: General Partner
KELSO EQUITY PARTNERS II, L.P.
By /s/ Frank T. Nickell
----------------------------
Name: Frank T. Nickell
Title: General Partner
<PAGE> 9
STOCKHOLDER
By /s/ George H. Inman
---------------------
Name: George H. Inman
<PAGE> 10
STOCKHOLDER
By /s/ A. Montague Miller
------------------------
Name: A. Montague Miller
<PAGE> 11
STOCKHOLDER
By /s/ Cary H. Rivers
--------------------
Name: Cary H. Rivers
<PAGE> 12
STOCKHOLDER
By /s/ Michael W. Harris
-----------------------
Name: Michael W. Harris
<PAGE> 13
STOCKHOLDER
By /s/ Henry T. Sanders
----------------------
Name: Henry T. Sanders
<PAGE> 14
MERCHANT INVESTMENTS, INC.
By /s/ Agnes Reicke
------------------
Name: Agnes Reicke
Title: Vice President and Secretary
<PAGE> 15
SCHEDULE I
<TABLE>
<CAPTION>
Name and Address of Stockholder Number of Shares Owned
- ------------------------------- ----------------------
<S> <C>
KIA III-Club Car, L.P. 797,868
Kelso Equity Partners II L.P. 111,473
George H. Inman 209,376
A. Montague Miller 114,200
Cary H. Rivers 112,485
Michael W. Harris 111,486
Henry T. Sanders 116,486
Merchant Investments, Inc. 342,995
</TABLE>
