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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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KYSOR INDUSTRIAL CORPORATION
(NAME OF SUBJECT COMPANY)
KYSOR INDUSTRIAL CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
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COMMON STOCK, PAR VALUE $1.00 PER SHARE
(INCLUDING THE ASSOCIATED COMMON SHARE PURCHASE RIGHTS)
AND
SERIES A CONVERTIBLE VOTING PREFERRED STOCK, STATED VALUE $24.375 PER SHARE
(TITLE OF EACH CLASS OF SECURITIES)
501566103 (COMMON STOCK)
(CUSIP NUMBER OF EACH CLASS OF SECURITIES)
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GEORGE R. KEMPTON
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
KYSOR INDUSTRIAL CORPORATION
ONE MADISON AVENUE
P.O. BOX 1000
CADILLAC, MICHIGAN 49601-9785
(616) 779-2200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
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WITH A COPY TO:
TRACY T. LARSEN, ESQ.
WARNER NORCROSS & JUDD LLP
900 OLD KENT BUILDING
111 LYON STREET, NW
GRAND RAPIDS, MICHIGAN 49503-2489
(616) 752-2000
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Kysor Industrial Corporation, a Michigan corporation (the "Company"), hereby
amends and supplements its statement on Schedule 14D-9, filed with the
Securities and Exchange Commission on February 7, 1997, with respect to the
tender offer by K Acquisition Corp., a Michigan corporation (the "Purchaser")
and an indirect wholly-owned subsidiary of Scotsman Industries, Inc., a
Delaware corporation ("Parent"), to purchase all outstanding Common Stock, par
value $1.00 per share, of the Company, including the associated common share
purchase rights (collectively, the "Common Shares") and all outstanding Series
A Convertible Voting Preferred Stock, stated value $24.375 per share (the
"Preferred Shares" and, together with the Common Shares, the "Shares"), of the
Company at a price of $43.00 per Share net to the seller in cash without
interest, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated February 7, 1997, and in the related Letter of Transmittal
(which together constitute the "Offer").
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
On February 13, 1997, the Federal Trade Commission informed Parent, the
Purchaser and the Company that it had granted early termination of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), for the acquisition of Shares under the Offer and the
acquisition by Kuhlman Corporation of substantially all the assets of the
Company's transportation products group business.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
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<CAPTION>
EXHIBIT NO. DOCUMENT
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<C> <S> <C>
14.** Letter dated February 12, 1997 to participants in the
Company Employee Stock Ownership Plan.
16. Joint press release issued on February 14, 1997 by the
Company and Parent.
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** Included in materials mailed to participants in the applicable plan.
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SIGNATURE
AFTER REASONABLE INQUIRY AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, I
CERTIFY THAT THE INFORMATION SET FORTH IN THIS STATEMENT IS TRUE, COMPLETE AND
CORRECT.
Kysor Industrial Corporation
/s/ George R. Kempton
By: ____________________________
George R. Kempton
Chairman of the Board and
Chief Executive Officer
Dated: February 14, 1997
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[OLD KENT BANK LETTERHEAD]
NOTICE TO PARTICIPANTS
IN THE
KYSOR INDUSTRIAL CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
February 12, 1997
To Participants in the Kysor Industrial Corporation
Employee Stock Ownership Plan (the "Plan"):
Enclosed for your consideration are the Offer to Purchase, dated February 7,
1997 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer"), relating to an offer by K Acquisition Corp.,
a Michigan corporation (the "Offeror") and an indirect wholly owned subsidiary
of Scotsman Industries, Inc., a Delaware corporation ("Parent"), to purchase
all outstanding shares of common stock, $1.00 par value, of Kysor Industrial
Corporation, a Michigan corporation (the "Company"), including the associated
common share purchase rights issued pursuant to the Rights Agreement between
the Company and Harris Trust and Savings Bank, as successor Rights Agent,
dated as of April 26, 1996, as amended (collectively, the "Common Stock"), and
all outstanding shares of Series A Convertible Voting Preferred Stock, $24.375
stated value per share (the "ESOP Preferred Stock"; the shares of Common Stock
and shares of ESOP Preferred Stock being collectively referred to herein as
the "Shares"), at a purchase price of $43.00 per Share, net to the seller in
cash, without interest, upon the terms and subject to the conditions set forth
in the Offer to Purchase.
The Offer is being made in connection with the Agreement and Plan of Merger,
dated as of February 2, 1997, among Parent, the Offeror and the Company (the
"Merger Agreement"). Under the Merger Agreement, following the consummation of
the Offer, the Company will merge with the Offeror, with the Company being the
surviving corporation (the "Merger"). As a consequence of the Merger, all
outstanding Shares not tendered to the Offeror in the Offer will be canceled
and the holders of such Shares will be paid merger consideration of $43.00 per
Share, net to the holder in cash, without interest.
The Offer to Purchase and the related Letter of Transmittal were prepared by
the Offeror and sent to us as the trustee of the Kysor Industrial Corporation
Employee Stock Ownership Trust (the "Trust"). As the trustee of the Trust (the
"Trustee"), we are the holder of record of all Shares owned by the Trust and
we alone have the power to tender such Shares to the Offeror. However, the
Plan and Trust provide that you are entitled to direct us as to whether to
tender to the Offeror the Shares owned by the Trust that are allocated to your
accounts under the Plan and a portion of the Shares owned by the Trust that
are not allocated to the Plan accounts of any Participants in the Plan,
subject to certain conditions and limitations and applicable laws. The Offer
to Purchase and the related Letter of Transmittal are enclosed for your
reference, so that you can provide us with such directions as described below
on an informed basis. The Letter of Transmittal cannot itself be used by you
to provide us with such directions. A SEPARATE INSTRUCTION FORM IS ENCLOSED SO
THAT YOU CAN PROVIDE US WITH SUCH DIRECTIONS.
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As described above, subject to certain conditions and limitations and
applicable laws, you may direct us to tender the Shares in your Plan accounts
and a certain number of the unallocated Shares in the Plan by completing and
mailing the attached instruction form. The exact number of Shares that you may
direct us to tender is the sum of (i) the number of Shares allocated to your
Plan accounts as of the date on which the Offer expires and (ii) the number of
Shares not allocated to Participant accounts multiplied by a fraction the
numerator of which is one and the denominator of which is the total number of
Participants providing valid and timely directions for this purpose. If the
conditions of the Offer, which are summarized below and in Section 15 of the
Offer to Purchase, are satisfied, each Share owned by the Trust that is
tendered will be purchased by the Offeror for $43.00, net in cash, without
interest. The Shares allocated to your Plan accounts will not be tendered if
you do not complete and mail the attached instruction form.
In addition, if the conditions of the Offer are satisfied, as a result of the
Merger, each Share owned by the Trust that is not tendered (including Shares
allocated to Participant accounts and unallocated Shares) will be converted
into the right to receive $43.00, net in cash, without interest.
As explained in more detail in the Offer to Purchase, cash proceeds that are
received with respect to Shares allocated to one of your Plan accounts
resulting from either the Offer or the Merger will be allocated to that Plan
account. Cash proceeds received by the Trust pursuant to either the Offer or
the Merger with respect to unallocated Shares owned by the Trust, will first be
used to repay the Trust's outstanding indebtedness incurred during 1989 to
purchase ESOP Preferred Stock. Any remaining portion of such cash proceeds
received by the Trust with respect to unallocated Shares will be allocated to
Participant accounts in accordance with the terms of the Plan, subject however
to applicable federal tax laws. As explained in more detail in the Offer to
Purchase, such federal tax laws may require that the allocation of such
remaining portion be made over several years and be made only to Plan accounts
of persons receiving compensation from the Company during the years when
allocated, and may also cause such allocations to the Plan accounts of a
Participant to be limited as a result of contributions made by or for the
benefit of the Participant under other qualified retirement plans of the
Company or Parent during those years.
A description of the Offer and the proposed Merger, and important details
concerning other matters such as the timing of distributions from the Plan, are
set out in the enclosed Offer to Purchase. You should read the Offer to
Purchase carefully, especially the discussion therein beginning on page 31
under the heading "The Company Employee Stock Ownership Plan," before
completing the enclosed instruction form.
The Company delivered to us on February 7, 1997, a Notice of Redemption of
all outstanding shares of ESOP Preferred Stock. The date fixed for the
redemption is the business day following the consummation of the Offer. The
redemption price is $24.375 per share, plus any accrued but unpaid dividends.
Because the redemption price is substantially less than the $43.00 per share
price to be paid in the Merger, we will exercise the Trust's right to convert
the ESOP Preferred Stock into an equivalent number of shares of Common Stock
before the redemption date. This will enable the Trust, in the event that the
Offer is consummated, to obtain $43.00 per share for all Shares held in the
Trust that are acquired in the Merger.
In addition, please note the following with respect to the Offer:
1. The tender price is $43.00 per Share, net to the seller (i.e., the
Trust), in cash, without interest.
2. The Offer is being made for all of the outstanding Shares.
3. The Offer and withdrawal rights will expire at 12:00 Midnight, eastern
standard time, on March 7, 1997, unless the Offer is extended. HOWEVER, AS
EXPLAINED BELOW, PLAN PARTICIPANTS MUST DELIVER THEIR DIRECTIONS AND ANY
SUBSEQUENT CHANGE OF DIRECTIONS TO OLD KENT BANK, C/O WATSON WYATT &
COMPANY, 28411 NORTHWESTERN HWY., SUITE 500, SOUTHFIELD, MI 48034-5544 ON
OR BEFORE 5:00 P.M., EASTERN STANDARD TIME, ON FEBRUARY 28, 1997.
4. The Offer is conditioned upon, among other things, there having been
validly tendered and not withdrawn prior to the expiration of the Offer
such number of Shares that would constitute a majority of the outstanding
Shares at the date of the expiration of the Offer (assuming the exercise of
all options to purchase Shares outstanding at the expiration date of the
Offer). The Offer is also subject to the other terms and
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conditions contained in the Offer to Purchase. The Offeror reserves the
right to waive certain conditions to the Offer, in accordance with
applicable rules and regulations of the United States Securities and
Exchange Commission, subject to the limitations set forth in the Merger
Agreement (but shall not be obligated to do so).
Lastly, please note the following with respect to Participant directions
regarding the tendering of allocated and unallocated Shares.
1. Shares allocated to the Plan accounts of a Participant will be
tendered only if we receive valid and timely directions by the Participant
instructing us to tender such Shares. Any failure to provide a direction
and any directions that are not valid or timely will be considered to be
directions not to tender Shares allocated to the Plan accounts of the
Participant.
2. Shares not allocated to the Plan accounts of Participants will, to the
extent consistent with applicable law, be tendered as directed by
Participants. The number of unallocated Shares a Participant may direct is
determined by multiplying the number of all such Shares by a fraction the
numerator of which is one and the denominator of which is the total number
of Participants providing valid and timely directions for this purpose.
If we determine that following either method described above is inconsistent
with applicable laws, we will determine the number of allocated or unallocated
Shares, respectively, to be tendered.
INSTRUCTIONS TO THE TRUSTEE
If you wish to direct us to tender any or all of the Shares allocated to your
Plan accounts, or to direct us to tender or not to tender unallocated Shares in
accordance with the terms of the Plan, please so instruct us by completing,
executing, detaching and returning to Old Kent Bank c/o Watson Wyatt & Company,
28411 Northwestern Hwy., Suite 500, Southfield, MI 48034-5544 the instruction
form contained in this letter. A stamped envelope to return your instructions
is enclosed. If you direct the tender of the Shares allocated to your Plan
accounts, all such Shares allocated to your Plan accounts as of the date on
which the Offer expires will be tendered. PLEASE FORWARD YOUR INSTRUCTIONS TO
US SO THAT THEY ARE RECEIVED BY US NO LATER THAN 5:00 P.M., EASTERN STANDARD
TIME, ON FRIDAY, FEBRUARY 28, 1997, TO ALLOW US AMPLE TIME TO TENDER SHARES
PRIOR TO THE EXPIRATION OF THE OFFER. PLEASE REMEMBER TO RETURN YOUR
INSTRUCTION FORM TO OLD KENT BANK C/O WATSON WYATT IN THE ENCLOSED STAMPED
RETURN ENVELOPE RATHER THAN TO THE COMPANY OR ANY OTHER PARTY.
CHANGING YOUR INSTRUCTIONS
If after you return your instruction form you decide you would like to change
your direction, you must send a written request for an additional instruction
form to Old Kent Bank c/o Watson Wyatt & Company, Attention: Kysor Tender
Offer, 28411 Northwestern Hwy., Suite 500, Southfield, MI 48034-5544, together
with a stamped, self-addressed envelope. Your original directions will not be
changed unless you complete, sign, date and return the second instruction form
to Old Kent Bank so that it is received by Old Kent Bank c/o Watson Wyatt no
later than Friday, February 28, 1997.
The Offer is made solely by the Offer to Purchase and the related Letter of
Transmittal and any supplements or amendments thereto. 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 or acceptance thereof would
not be in compliance with the securities, blue sky or other 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 the Offeror by Morgan Stanley & Co. Incorporated
or one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
Very truly yours,
Old Kent Bank
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INSTRUCTION FORM WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
AND
SERIES A CONVERTIBLE VOTING PREFERRED STOCK
OF
KYSOR INDUSTRIAL CORPORATION
To Old Kent Bank c/o Watson Wyatt:
The undersigned acknowledges receipt of your letter dated February 12, 1997,
the enclosed Offer to Purchase dated February 7, 1997 (the "Offer to
Purchase"), and the related Letter of Transmittal (which Offer to Purchase and
related Letter of Transmittal together constitute the "Offer"), in connection
with the offer by K Acquisition Corp., a Michigan corporation (the "Offeror")
and an indirect wholly owned subsidiary of Scotsman Industries, Inc., a
Delaware corporation, to purchase all outstanding shares of common stock, $1.00
par value, of Kysor Industrial Corporation, a Michigan corporation (the
"Company"), including the associated common share purchase rights issued
pursuant to the Rights Agreement between the Company and Harris Trust and
Savings Bank, as successor Rights Agent, dated as of April 26, 1996, as
amended, and all outstanding shares of Series A Convertible Voting Preferred
Stock, $24.375 stated value per share (collectively, the "Shares").
I hereby direct you to tender or not to tender to the Offeror all Shares that
are allocated to my accounts under the Kysor Industrial Corporation Employee
Stock Ownership Plan (the "Plan") upon the terms and subject to the conditions
set forth in the Offer as indicated below.
DIRECTIONS AS TO ALLOCATED SHARES
(Check One)
TENDER SHARES
DO NOT TENDER SHARES
I hereby further direct you to tender or not to tender to the Offeror Shares
that are not allocated to Participants' accounts in accordance with the terms
of the Plan, to the extent consistent with applicable laws, as indicated below.
DIRECTIONS AS TO UNALLOCATED SHARES
(Check One)
TENDER SHARES
DO NOT TENDER SHARES
PLEASE RETURN THIS FORM IN THE ENCLOSED STAMPED RETURN ENVELOPE.
SIGN HERE
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(Signature)
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(Print Name)
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(Area Code and Telephone number)
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(Social Security Number)
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[LETTERHEAD OF SCOTSMAN INDUSTRIES]
Contacts:
Donald D. Holmes Terry Murphy Paul Verbinnen/
Scotsman Industries Kysor Industrial Judy Brennan
(847) 215-4600 (616) 779-2200 Sard Verbinnen & Co.
(212) 687-8080
SCOTSMAN INDUSTRIES AND KYSOR INDUSTRIAL CORPORATION
ANNOUNCE EARLY TERMINATION OF HART-SCOTT-RODINO WAITING PERIOD
INVOLVING ACQUISITION OF KYSOR INDUSTRIAL CORPORATION
AND RELATED ASSET SALE
Vernon Hills, IL and Cadillac, MI, February 14, 1997 -- Scotsman
Industries, Inc. (NYSE:SCT) and Kysor Industrial Corporation (NYSE:KZ) announced
today that the Federal Trade Commission has granted early termination of the
waiting period related to the proposed acquisition of Kysor by Scotsman. The
Federal Trade Commission has also granted early termination of the waiting
period for the related sale of the assets of Kysor's Transportation Products
Group to Kuhlman Corporation.
Scotsman Industries, Inc. is a leading international manufacturer of
refrigeration products -- ice machines, beverage dispensing systems, food
preparation and storage equipment and related products. The Company markets
primarily to commercial customers in the food service, hospitality, beverage and
health care industries. Scotsman's products are sold in more than 100 countries
through multiple distribution channels.
Kysor Industrial Corporation is a quality producer of refrigerated display
cases, commercial refrigeration systems and insulated panels for the supermarket
and food service industry and a manufacturer of components for the medium- and
heavy-duty commercial vehicle market.
