SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT (AMENDMENT NO. 3) PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
-------------------------------
DYNAMICS CORPORATION OF AMERICA
(Name of Subject Company)
WHX CORPORATION
SB ACQUISITION CORP.
(Bidders)
COMMON STOCK, PAR VALUE $.10 PER SHARE
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
268039 10 4
(CUSIP Number of Class of Securities)
MR. RONALD LABOW
CHAIRMAN OF THE BOARD
WHX CORPORATION
110 EAST 59TH STREET
NEW YORK, NY 10022
TELEPHONE: (212) 355-5200
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
with a copy to:
ILAN K. REICH, ESQ.
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 753-7200
-------------------------------
This Statement amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed with the Securities and Exchange Commission on March 31,
1997, as previously amended and supplemented, by SB Acquisition Corp.
("Purchaser"), a New York corporation and a wholly owned subsidiary of WHX
Corporation, a Delaware corporation ("Parent"), to purchase up to 649,000 shares
of Common Stock, par value $.10 per share (the "Shares") of the Company,
including the associated Common Stock Purchase Rights issued pursuant to the
Rights Agreement, dated as of January 30, 1986, as amended on December 27, 1995
(the "Rights Agreement"), between the Company and First National Bank of Boston,
as Rights Agent, at a price of $45 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 March 31, 1997 (the "Offer to Purchase"), as amended
and supplemented by the First Supplement thereto, dated April 9, 1997 (the
"First Supplement"), this Second Supplement thereto, dated April 15, 1997 (the
"Second Supplement") and in the related Letters of Transmittal (which, together
with any amendments or supplements thereto, constitute the "Offer"). Capitalized
terms used and not defined herein shall have the meanings assigned to such terms
in the Offer to Purchase, the First Supplement, the Second Supplement and the
Schedule 14D-1.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
Item 3(b) is hereby amended and supplemented by reference to Section 2
of the Second Supplement, which Section is incorporated herein by reference.
<PAGE>
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLAN OR PROPOSALS OF THE BIDDER.
Item 5(a)-(e) is hereby amended and supplemented by reference to
Section 4 of the Second Supplement, which Section is incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION
Item 10(e) is hereby amended and supplemented by reference to Section 3
of the Supplement, which Section is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a) (1) Offer to Purchase, dated March 31, 1997.*
(2) Letter of Transmittal.*
(3) Notice of Guaranteed Delivery.*
(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(5) Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other
Nominees.*
(6) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.*
(7) Text of Press Release issued by WHX Corporation on
March 31, 1997.*
(8) Summary Advertisement published on April 1, 1997.*
(9) Text of Press Release, issued by Parent on April 9,
(10) First Supplement to Offer to Purchase, dated April 9,
1997.*
(11) Revised Letter of Transmittal*
(12) Revised Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
(13) Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
(14) Second Supplement to Offer to Purchase, dated April
15, 1996.
(15) Revised Letter of Transmittal.
(16) Revised Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(17) Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(18) Revised Notice of Guaranteed Delivery
(19) Complaint in DYNAMICS CORPORATION OF AMERICA vs. WHX
CORPORATION AND SB ACQUISITION CORP. (3:97 CV 702
(GLG)) filed in the United States District Court,
District of Connecticut, on April 14, 1997.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
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* Previously provided.
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<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: April 15, 1997
WHX CORPORATION
WHX CORPORATION
By:/S/ STEWART E. TABIN
--------------------
Name: Stewart E. Tabin
Title: Assistant Treasurer
SB ACQUISITION CORP.
By: /S/ STEWART E. TABIN
--------------------
Name: Stewart E. Tabin
Title: Vice President
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER PAGE
- --------------------------------------------------------------------------------
(a) (1) Offer to Purchase, dated March 31, 1997.*
(2) Letter of Transmittal.*
(3) Notice of Guaranteed Delivery.*
(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(5) Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other
Nominees.*
(6) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.*
(7) Text of Press Release issued by WHX Corporation on
March 31, 1997.*
(8) Summary Advertisement published on April 1, 1997.*
(9) Text of Press Release, issued by Parent on April 9,
1997.*
(10) First Supplement to Offer to Purchase, dated April 9,
1997.*
(11) Revised Letter of Transmittal*
(12) Revised Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
(13) Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
(14) Second Supplement to Offer to Purchase dated April
15, 1997.
(15) Revised Letter of Transmittal.
(16) Revised Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(17) Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(18) Revised Notice of Guaranteed Delivery
(19) Complaint in DYNAMICS CORPORATION OF AMERICA vs. WHX
CORPORATION AND SB ACQUISITION CORP. (3:97 CV 702
(GLG)) filed in the United States District Court,
District of Connecticut, on April 14, 1997.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
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* Previously provided.
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EXHIBIT (A)(14)
SECOND SUPPLEMENT TO THE OFFER TO PURCHASE DATED MARCH 31, 1997
SB ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
OFFERS TO PURCHASE FOR CASH UP TO 649,000 SHARES OF
COMMON STOCK (INCLUDING THE ASSOCIATED RIGHTS) OF
DYNAMICS CORPORATION OF AMERICA
AT A PRICE OF $45 PER SHARE
------------------------
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, APRIL 29, 1997, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS NOT SUBJECT TO ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
------------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of such
shareholder's Shares (as defined herein) should either (i) complete and sign the
Letter of Transmittal (or a facsimile thereof) in accordance with the
instructions in the Letter of Transmittal, have such shareholder's signature
thereon guaranteed if required by Instruction 1 to the Letter of Transmittal,
mail or deliver the Letter of Transmittal (or such facsimile thereof) and any
other required documents to the Depositary and either deliver the certificates
for such Shares to the Depositary along with the Letter of Transmittal (or a
facsimile thereof) or deliver such Shares pursuant to the procedure for
book-entry transfer set forth in Section 3 prior to the expiration of the Offer
or (ii) request such shareholder's broker, dealer, commercial bank, trust
company or other nominee to effect the transaction for such shareholder.
A shareholder having Shares 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 shareholder
desires to tender such Shares. Any shareholder who desires to tender Shares and
whose certificates for such Shares are not immediately available, or who cannot
comply with the procedures for book-entry transfer described in the Offer to
Purchase on a timely basis, may tender such Shares by following the procedures
for guaranteed delivery set forth in Section 3 of the Offer to Purchase.
Questions and requests for assistance or for additional copies of the
Offer to Purchase, the First Supplement thereto, this Second Supplement thereto,
the revised Letter of Transmittal or other tender offer materials, may be
directed to the Information Agent (as defined herein) at its address and
telephone number set forth on the back cover of this Supplement.
April 15, 1997
<PAGE>
TO THE HOLDERS OF COMMON STOCK OF DYNAMICS CORPORATION AMERICA:
INTRODUCTION
The following information amends and supplements the Offer to Purchase
dated March 31, 1997 (the "Offer to Purchase"), as amended and supplemented by
the First Supplement thereto, dated April 10, 1997 (the "First Supplement") and
this Second Supplement thereto, dated April 15, 1997 (the "Second Supplement"),
of SB Acquisition Corp., a New York corporation ("Purchaser") and a wholly-owned
subsidiary of WHX Corporation, a Delaware corporation ("Parent") pursuant to
which Purchaser is offering to purchase 649,000 shares of common stock, par
value $.10 per share (the "Shares") of Dynamics Corporation of America, a New
York corporation (the "Company"), including the associated Common Stock Purchase
Rights issued pursuant to the Rights Agreement (the "Rights Agreement"), dated
as of January 30, 1986, as amended on December 27, 1995, between the Company and
First National Bank of Boston, as Rights Agent, at a price of $45 per Share, net
to the seller in cash, without interest thereon (the "Offer Price"), upon the
terms and subject to the conditions set forth in the Offer to Purchase, as
amended and supplemented by the First Supplement and this Second Supplement, and
in the related Letters of Transmittal (which, as amended from time to time,
together constitute the "Offer").
Except as otherwise set forth in this Second Supplement, the terms and
conditions previously set forth in the Offer to Purchase and the First
Supplement remain applicable in all respects to the Offer, and this Second
Supplement should be read in conjunction with the Offer to Purchase and the
First Supplement. Unless the context requires otherwise, terms not defined
herein have the meanings ascribed to them in the Offer to Purchase and the First
Supplement.
According to the Company's Proxy Statement dated March 26, 1997, as of
March 14, 1997 there were 3,815,194 Shares outstanding. The Purchaser already
owns 109,861 Shares (approximately 2.9%).
Procedures for tendering Shares are set forth in Section 3 of the Offer
to Purchase.
THIS OFFER TO PURCHASE, THE FIRST SUPPLEMENT, THIS SECOND SUPPLEMENT
AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ
CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
----------------------------------
1. PROCEDURES FOR TENDERING SHARES.
The discussion set forth in Section 3 of the Offer to Purchase is
hereby amended and restated as follows:
Valid Tender of Shares. In order for Shares to be validly tendered
pursuant to the Offer, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message (in the case of any book-entry transfer), and any other
required documents, must be received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase prior to the Expiration
Date and either (i) the Share Certificates evidencing tendered Shares must be
received by the Depositary at one of such addresses or Shares must be tendered
pursuant to the procedure for book-entry transfer described below and a
Book-Entry Confirmation must be received by the Depositary, in each case prior
to the Expiration Date, or (ii) the tendering shareholder must comply with the
guaranteed delivery procedures described below.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY, IS AT THE
OPTION AND RISK OF THE TENDERING SHAREHOLDER, 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 of the Book-Entry Transfer Facilities for purposes
of the Offer within two business days after the date of this Offer to
<PAGE>
Purchase, and any financial institution that is a participant in either of the
Book-Entry Transfer Facilities' system may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account at a Book-Entry Transfer Facility in accordance with such
Book-Entry Transfer Facility's procedures for transfer. However, although
delivery of Shares may be effected through book-entry transfer at the Book-Entry
Transfer Facility, the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, 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 shareholder must
comply with the guaranteed delivery procedures described below. The confirmation
of a book-entry transfer of shares into the Depositary's account at a Book Entry
Transfer Facility as described above is referred to as a "Book-Entry
Confirmation." DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
SIGNATURE GUARANTEE. Signatures on all Letters of Transmittal must be
guaranteed by a firm which is a bank, broker, dealer, credit union, savings
association or other entity that is a member in good standing of the Securities
Transfer Agents Medallion Program (each, an "Eligible Institution"), unless the
Shares tendered thereby are tendered (i) by a registered holder of Shares who
has not completed either the box entitled "Special Delivery Instructions" or the
box entitled "Special Payment Instructions" on the Letter of Transmittal or (ii)
for the account of an Eligible Institution. See Instruction 1 of the Letter of
Transmittal.
If a Share Certificate is registered in the name of a person other than
the signer of the Letter of Transmittal, or if payment is to be made, or 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 shareholder desires to tender Shares pursuant
to the Offer and such shareholder'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 Purchaser
herewith, is received by the Depositary as provided below prior to the
Expiration Date; and
(iii) in the case of a guarantee of Shares, the Share
Certificates for all tendered Shares, in proper form for transfer, or a
Book-Entry Confirmation, together with a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof)
with any required signature guarantee (or, in the case of a book-entry
transfer, an Agent's Message) and any other documents required by such
Letter of Transmittal, are received by the Depositary within three NYSE
trading days after the date of execution of the Notice of Guaranteed
Delivery.
Any Notice of Guaranteed Delivery may be delivered by hand or
transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in the
Notice of Guaranteed Delivery.
IN ALL CASES, SHARES SHALL NOT BE DEEMED VALIDLY TENDERED, UNLESS A
PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL (OR A FACSIMILE
THEREOF) IS RECEIVED BY THE DEPOSITARY.
Notwithstanding any other provision hereof, payment for Shares
purchased pursuant to the Offer will, in all cases, be made only after timely
receipt by the Depositary of (i) the Share Certificates evidencing such Shares,
or a Book-Entry Confirmation of the delivery of such Shares, if available, (ii)
a properly completed and duly
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<PAGE>
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message) and (iii) any other documents required by the Letter of Transmittal.
DISTRIBUTION OF RIGHTS. Holders of Shares will be required to tender
one Right for each Share tendered to effect a valid tender of such Share. Unless
and until the Distribution Date (as defined in Section 7 below) occurs, the
Rights are represented by and transferred with the Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date of the Offer, a
tender of Shares will constitute a tender of the associated Rights. If a
Distribution Date has occurred, certificates representing a number of Rights
equal to the number of Shares being tendered must be delivered to the Depositary
in order for such Shares to be validly tendered. If a Distribution Date has
occurred, a tender of Shares without Rights constitutes an agreement by the
tendering shareholder to deliver certificates representing a number of Rights
equal to the number of Shares tendered pursuant to the Offer to the Depositary
within three NYSE trading days after the date such certificates are distributed.
Purchaser reserves the right to require that it receive such certificates prior
to accepting Shares for payment. If a Distribution Date has occurred, unless the
Rights are redeemed prior to the Expiration Date, shareholders who sell their
rights separately from their Shares and do not otherwise acquire Rights may not
be able to satisfy the requirements of the Offer for the tender of Shares.
Payment for Shares tendered and purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of, among other things, such
certificates, if such certificates have been distributed to holders of Shares.
Purchaser will not pay any additional consideration for the Rights tendered
pursuant to the Offer.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tendered Shares pursuant to any of the procedures described above will be
determined by Purchaser in its sole discretion, whose determination will be
final and binding on all parties. 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 Purchaser's counsel, be unlawful. 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 shareholder, whether or not similar defects or irregularities are
waived in the case of other shareholders. No tender of Shares will be deemed to
have been validly made until all defects and irregularities have been cured or
waived.
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 Parent, Purchaser, the Company, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or will incur any
liability for failure to give any such notification.
APPOINTMENT AS PROXY. By executing a Letter of Transmittal as set forth
above, a tendering shareholder irrevocably appoints designees of Purchaser as
such shareholder's proxies, each with full power of substitution, to the full
extent of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by Purchaser (and any and all noncash
dividends, distributions, rights, other Shares, or other securities issued or
issuable in respect of such Shares). All such proxies shall be considered
coupled with an interest in the tendered Shares. This appointment will be
effective if, when, and only to the extent that, Purchaser accepts such Shares
for payment pursuant to the Offer. Upon such acceptance for payment, all prior
proxies given by such shareholder with respect to such Shares and other
securities will, without further action, be revoked, and no subsequent proxies
may be given. The designees of 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 shareholder as they in their sole
discretion may deem proper at any annual, special, adjourned or postponed
meeting of the Company's shareholders, by written consent or otherwise, and
Purchaser reserves the right to require that, in order for Shares or other
securities to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Shares, Purchaser must be able to exercise full
voting rights with respect to such Shares.
TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING WITH RESPECT TO
PAYMENT TO CERTAIN SHAREHOLDERS OF THE PURCHASE PRICE FOR SHARES PURCHASED
PURSUANT TO THE OFFER, EACH SUCH SHAREHOLDER MUST PROVIDE THE DEPOSITARY WITH
SUCH SHAREHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER AND CERTIFY THAT SUCH
SHAREHOLDER IS NOT SUBJECT TO BACKUP FEDERAL INCOME TAX WITHHOLDING BY
COMPLETING THE SUBSTITUTE FORM W-9 IN THE LETTER OF TRANSMITTAL. IF BACKUP
WITHHOLDING APPLIES WITH RESPECT TO A SHAREHOLDER, THE DEPOSITARY IS REQUIRED TO
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<PAGE>
WITHHOLD 31% OF ANY PAYMENTS MADE TO SUCH SHAREHOLDER. SEE INSTRUCTION 9 OF THE
LETTER OF TRANSMITTAL.
Purchaser's acceptance for payment of Shares tendered pursuant to the
Offer will constitute a binding agreement between the tendering shareholder and
Purchaser upon the terms and subject to the conditions of the Offer.
2. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY.
The discussion set forth in Section 10 of the Offer to Purchase is
hereby amended and supplemented as follows:
On April 14, 1997, the Company issued the following press release:
"GREENWICH, CONNECTICUT (April 14, 1997)--Dynamics Corporation
of America (NYSE: DYA) announced today that its Board of Directors has
voted unanimously to recommend that shareholders reject the unsolicited
offer by WHX Corporation (NYSE: WHX) to acquire up to 649,000 shares of
the Company's common stock (or approximately 17% of the outstanding
shares) at a price of $45 per share and that they not tender their
shares to WHX.
The Board of Directors concluded that the WHX offer is
inadequate, is not in the best interests of the Company and its
shareholders and does not adequately reflect the value or prospects of
the Company.
In arriving at its determination and recommendation, the Board
gave careful consideration to a number of factors, including the
opinion of Wasserstein Perella & Co., Inc., the Company's financial
advisor, that the offer price is inadequate from a financial point of
view.
The Board of Directors also determined to explore alternative
transactions to maximize shareholder value.
The Company also announced that the Board of Directors, in
order to provide the Board of Directors with additional time with which
to explore alternatives, has determined to postpone the upcoming annual
meeting of shareholders, originally scheduled for May 2, 1997, until
August 1, 1997. To provide for stability and continuity, the Board has
also increased the size of the Board of Directors to nine members
(resulting in the Board of Directors being divided into three classes)
and adopted certain amendments to the Company's by-laws.
The new directors are John A. Thompson, a principal of IMCOR,
a management consulting firm, and Ronald Steiner, President of
International Electronic Research Corporation, a subsidiary of the
Company.
The Company has retained Skadden, Arps, Slate, Meagher & Flom
LLP to act as its legal advisor.
The Company also announced today that it had filed with the
Securities and Exchange Commission, and will mail to shareholders
shortly, a Solicitation/Recommendation Statement on Schedule 14D-9
setting forth the Company's recommendation with respect to WHX's offer.
Additional information with respect to the Board's decision to
recommend that shareholders reject the WHX offer is contained in the
Schedule 14D-9.
Dynamics Corporation of America is a diversified company which
manufactures electronic components, mobile vans and transportable
shelters for specialized electronic and medical diagnostic equipment,
portable electric housewares and commercial appliances, air
distribution equipment, specialized air-conditioning equipment and
generator sets. The Company currently holds a 44.1% stake in CTS
Corporation, an Indiana corporation headquartered in Elkhart whose
shares are listed on the New York Stock Exchange (NYSE: CTS) and which
manufactures electronic and electromechanical components for the
automotive, data processing, communications equipment, instruments and
controls, defense and aerospace and consumer electronic markets."
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<PAGE>
In light of the foregoing, Parent is not currently seeking to solicit
proxies for the Annual Meeting.
3. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS
The discussion set forth in Section 14 of the Offer to Purchase is
hereby amended and supplemented by adding the following text at the end thereof:
CERTAIN LITIGATION. On April 14, 1997, the Company filed a complaint
for declaratory, injunctive and other relief against Purchaser and Parent in the
United States District Court, District of Connecticut, alleging, among other
things, that the Offer to Purchase and Parent's preliminary proxy materials
contain materially false and misleading statements and omissions including that:
(a) Despite express denials by Parent to the contrary,
Parent is part of an alleged group under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") with
Warren Lichtenstein, Steel Partners II, L.P. and Steel Partners
Services Ltd. (collectively, "Lichtenstein"), who together allegedly
own in excess of 5% of the Shares;
(b) Consequently, because Parent is part of an alleged
Section 13(d) group, upon completion of the Offer, the Merger would be
prohibited for five years by Section 912(b) of the New York Business
Corporation Law ("NYBCL");
(c) Consequently, because Parent is part of an alleged
Section 13(d) group, the completion of the Offer would trigger exercise
of Rights under the Rights Agreement;
(d) If the Offer is completed, approval of the Merger
would have to be obtained by the affirmative vote of the holders of 80%
of the Shares entitled to vote rather than two-thirds of such Shares as
stated in the Offer; and
(e) Amendment to the Company's By-laws requires the
affirmative vote of 80% of the Company's Shareholders, not the majority
as stated by Parent in its preliminary proxy statement.
The complaint seeks, among other things, an order directing Parent to
file corrective disclosure, and an order enjoining Parent from any future action
under the Offer or the proxy solicitation, pending compliance by Parent with
federal securities laws.
This summary is qualified by reference to the text of the complaint, a
copy of which is filed as Exhibit (a)(19) to Purchaser's Schedule 14D-1.
The Offer to Purchase disclosed that the affirmative vote of the
holders of two-thirds of the Shares entitled to vote would be required to
consummate the Merger. According to the complaint filed by the Company, Article
XV of the Company's Certificate of Incorporation, as amended in 1975, applies to
such a transaction. Such Article provides, among other things, that 80% of the
outstanding voting stock of the Company is required to approve a merger of the
Company with another person if the other person is the "beneficial owner" of 5%
or more of the outstanding voting stock unless (i) the transaction is consistent
with a memorandum of understanding approved by the Company's Board of Directors
prior to the time such person shall have become the beneficial owner of 5% or
more of the outstanding voting stock or (ii) the Company and its subsidiaries
own a majority of the outstanding voting stock of such person.
Alternatively, according to the complaint filed by the Company, if
Purchaser or Parent are deemed to be part of a Schedule 13(d) group with
Lichtenstein and as a result are deemed to hold more than 20% of the outstanding
Shares of the Company, Purchaser or Parent may be required to comply with
Section 912(b) of the NYBCL. Section 912(b) prohibits any person who is the
"beneficial owner" of 20% or more of the outstanding voting stock of a
corporation (and therefore is an "interested shareholder") from engaging in
certain business combinations (including a merger) with such corporation for a
period of five years following the date on which such person first became an
interested shareholder, unless the transaction by which such person became an
interested shareholder or the business combination is approved by the board of
directors of the corporation prior to the date
-5-
<PAGE>
on which such person became an interested shareholder, or the transaction is
approved by a majority of disinterested shareholders, or certain "fair price"
provisions are met.
The Company alleges in its complaint that Parent is part of a group
under Section 13(d) of the Exchange Act with Lichtenstein. As disclosed in the
Offer to Purchase, Parent expressly disclaims that there is any group with
Lichtenstein under Section 13(d).
Purchaser and Parent hereby provide corrective disclosure that (i) if
Article XV of the Company's Certificate of Incorporation is applicable and
Purchaser acquires 5% of the Shares pursuant to the Offer or otherwise, the
affirmative vote of the holders of 80% of the Shares may be required to approve
the Merger, and (ii) if Purchaser and Parent are deemed to be part of a Schedule
13(d) group with Lichtenstein and if at any time Purchaser or Parent are deemed
to be a beneficial owner of more than 20% of the Company's outstanding Shares,
(x) Purchaser and Parent may be obligated to comply with the terms of Section
912(b) of the NYBCL and (y) the Rights issued under the Rights Agreement could
be triggered, thereby resulting in potential dilution to Parent's ownership
position. Purchaser and Parent reserve their rights to challenge the validity
and applicability of any such provisions or any such law allegedly applicable to
Purchaser or Parent, and nothing in the Offer to Purchase, the First Supplement
or this Second Supplement nor any action taken in connection therewith or
herewith is intended as a waiver of such rights.
Purchaser and Parent intend to seek judicial resolution that Article XV
of the Company's Certificate of Incorporation is preempted by Section 912(b) of
the NYBCL.
The Company also alleges that Parent violated federal law in that it
misrepresented the view of certain members of the SEC Staff on certain
provisions of the Offer. Initially, the Offer was (i) open to shareholders of
the Company that satisfied a "Record Holder Condition" pursuant to which
Purchaser would purchase Shares only from certain tendering shareholders who
could transfer or deliver a valid proxy for the Annual Meeting and (ii) subject
to automatic adjustment in the number of Shares to be purchased upon an
amendment to the Rights Agreement without giving rise to any extension of the
expiration, proration or withdrawal dates of the Offer. On April 10, 1997,
Purchaser amended the Offer to remove these provisions and provided the
requisite corrective disclosure as requested by the Staff of the SEC.
Parent hereby provides corrective disclosure for its preliminary proxy
statement filed with the SEC in respect of the approval required to amend the
Company's By-Laws. The Company's Certificate of Incorporation provides that the
vote of the holders of 80% of the outstanding voting stock of the Company is
required for shareholders to adopt, amend or repeal the By-Laws of the Company.
On April 14, 1997, the Company publicly disclosed that it had repealed an
inconsistent and therefore ineffective By-Law provision which was the basis of
the foregoing statement by Parent. Parent intends to disclose such newly
clarified voting requirement in its definitive proxy materials which may be
mailed to Shareholders in connection with the Annual Meeting.
4. PURPOSE OF THE OFFER; THE MERGER OFFER; PROXY SOLICITATION;
PLANS FOR THE COMPANY.
The discussion set forth in Section 11 of the Offer to Purchase is
hereby amended and supplemented as follows:
The Offer to Purchase had disclosed that the affirmative vote of the
holders of two-thirds of the Shares entitled to vote would be required to
consummate the Merger. Purchaser and Parent hereby provide corrective disclosure
that (i) if Article XV of the Company's Certificate of Incorporation is
applicable and Purchaser acquires 5% of the Shares pursuant to the Offer or
otherwise, the affirmative vote of the holders of 80% of the Shares may be
required to approve the Merger, and (ii) if Purchaser and Parent are deemed to
be part of a Schedule 13(d) group with Lichtenstein and if at any time Purchaser
or Parent are deemed to be a beneficial owner of more than 20% of the Company's
outstanding Shares, (x) Purchaser and Parent may be obligated to comply with the
terms of Section 912(b) of the NYBCL and (y) the Rights issued under the Rights
Agreement could be triggered, thereby resulting in potential dilution to
Parent's ownership position. Purchaser and Parent reserve their rights to
challenge the validity and applicability of any such provision or any such law
allegedly applicable to Purchaser or Parent, and nothing in the Offer to
Purchase, the First Supplement or this Second Supplement nor any action taken in
connection therewith or herewith is intended as a waiver of such rights.
-6-
<PAGE>
5. MISCELLANEOUS. Parent and Purchaser have filed with the SEC an
amendment to the Schedule 14D-1 pursuant to Rule 14d-3 of the General Rules and
Regulations under the Securities Exchange Act, furnishing certain additional
information with respect to the Offer, and may file further 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 of the Offer to Purchase (except that they will
not be available at the regional offices of the SEC).
Except as modified by this Second Supplement, the terms set forth in
the Offer to Purchase, the First Supplement, and the related Letters of
Transmittal remain applicable in all respects to the Offer and this Second
Supplement should be read in conjunction with the Offer to Purchase, the First
Supplement and the related Letters of Transmittal.
SB ACQUISITION CORP.
April 15, 1997
-7-
<PAGE>
Manually executed facsimile copies of the Letter of Transmittal,
properly completed and duly signed, will be accepted. The Letter of Transmittal,
certificates for the Shares and any other required documents should be sent by
each shareholder of the Company or his broker, dealer, commercial bank, trust
company or other nominee to the Depositary at one of its addresses set forth
below:
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Overnight Courier: By Hand:
Wall Street Station 77 Water Street, 4th Floor Receive Window
P.O. Box 1023 New York, NY 10005 77 Water Street, 5th Floor
New York, NY 10268-1023 New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636 or 7637
For Information Telephone (call collect):
(212) 701-7624
Any questions or requests for assistance or additional copies of the
Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed
Delivery may be directed to the Information Agent or the Dealer Manager at their
respective telephone numbers and locations 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:
GEORGESON & COMPANY INC.
Wall Street Plaza
New York, New York 10005
Telephone: (212) 440-9800
or
CALL TOLL FREE: (800) 223-2064
<PAGE>
EXHIBIT (A)(15)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED RIGHTS)
OF
DYNAMICS CORPORATION OF AMERICA
PURSUANT TO THE OFFER TO PURCHASE, DATED MARCH 31, 1997
AND THE SUPPLEMENTS THERETO, DATED APRIL 10, 1997 AND APRIL 15, 1997
BY
SB ACQUISITION CORP.,
A WHOLLY OWNED SUBSIDIARY
OF
WHX CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME,
ON TUESDAY, APRIL 29, 1997, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Overnight Courier: By Hand:
Wall Street Station 77 Water Street, 4th Floor Receive Window
P.O. Box 1023 New York, NY 10005 77 Water Street, 5th Floor
New York, NY 10268-1023 New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 701-7636 or 7637
For Information Telephone (call collect):
(212) 701-7624
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OR TELEX TRANSMISSION
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST
SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE
SUBSTITUTE FORM W-9 PROVIDED BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL
SHOULD BE READ CAREFULLY BEFORE THIS LETTER
OF TRANSMITTAL IS COMPLETED.
THIS LETTER OF TRANSMITTAL IS TO BE COMPLETED BY SHAREHOLDERS OF
DYNAMICS CORPORATION OF AMERICA EITHER IF CERTIFICATES EVIDENCING SHARES (EACH
AS DEFINED BELOW) ARE TO BE FORWARDED HEREWITH, OR IF DELIVERY OF SHARES IS TO
BE MADE BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE DEPOSITORY
TRUST COMPANY OR THE PHILADELPHIA DEPOSITORY TRUST COMPANY (EACH A "BOOK-ENTRY
TRANSFER
<PAGE>
FACILITY") PURSUANT TO THE BOOK-ENTRY TRANSFER PROCEDURE DESCRIBED IN
"PROCEDURES FOR TENDERING SHARES" OF THE OFFER TO PURCHASE (AS DEFINED BELOW).
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
While the previously circulated (yellow) Letter of Transmittal refers
to the Offer to Purchase, dated March 31, 1997, shareholders making use thereof
to tender their Shares will nevertheless receive $45 per Share for each Share
validly tendered and not withdrawn and accepted for payment pursuant to the
Offer, subject to the conditions of the Offer. Shareholders who have previously
validly tendered and have not withdrawn their Shares pursuant to the Offer are
not required to take any further action to receive the increased tender price of
$45 per Share.
This revised (white) Letter of Transmittal or the previously circulated
(yellow or white) Letter of Transmittal is to be completed by shareholders
either if certificates evidencing Shares (as defined below) are to be forwarded
herewith or if delivery of Shares is to be made by book-entry transfer to the
Depositary's Account at any Book-Entry Transfer Facility pursuant to the
book-entry transfer procedure described in Section 3 of the Offer to Purchase
(as defined below). DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES
NOT CONSTITUTE DELIVERY TO THE DEPOSITORY.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
---------------------------------
CHECK BOX OF APPLICABLE BOOK-ENTRY TRANSFER FACILITY:
/ / DTC / / PDTC
Account Number:
---------------------------------------------------------
Transaction Code Number:
------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING TENDERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Holder(s):
------------------------------------
Window Ticket Number (if any):
--------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-----------------
Name of Institution which Guaranteed Delivery:
----------------------
IF DELIVERED BY BOOK-ENTRY TRANSFER, CHECK BOX OF BOOK-ENTRY TRANSFER
FACILITY:
/ / DTC / / PDTC
Account Number:
---------------------------------------------------------
Transaction Code Number:
------------------------------------------------
-2-
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- -----------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) Share Certificate(s) Tendered
(Please fill in, if blank) (Attach Additional List if Necessary)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Total Number of Number of
Certificate Shares Represented Shares
Number(s)* By Certificate(s)* Tendered**
- -----------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Total Shares
- -----------------------------------------------------------------------------------------------------------------------------
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares being delivered to the Depositary are being tendered.
See Instruction 4.
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
The names and addresses of the registered holders should be printed, if
not already printed above, exactly as they appear on the certificates
representing Shares tendered hereby. The certificates and number of
Shares that the undersigned wishes to tender should be indicated in the
appropriate boxes.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL
CAREFULLY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to SB Acquisition Corp., a New York
corporation ("Purchaser") and a wholly owned subsidiary of WHX Corporation, a
Delaware corporation, the above described shares of common stock, par value $.10
per share (the "Shares") of Dynamics Corporation of America, a New York
corporation (the "Company"), including the associated Common Stock Purchase
Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of
January 30, 1986, as amended on December 27, 1995, between the Company and First
National Bank of Boston, as Rights Agent, at a price of $45 per Share, net to
the seller in cash, without interest thereon (the "Offer Price"), upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated March
31, 1997 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which, as amended from time to time, together constitute the "Offer"). UNLESS
THE CONTEXT REQUIRES OTHERWISE, ALL REFERENCES HEREIN TO THE SHARES SHALL
INCLUDE THE ASSOCIATED RIGHTS, AND ALL REFERENCES TO THE RIGHTS SHALL INCLUDE
ALL BENEFITS THAT MAY INURE TO THE HOLDERS OF THE RIGHTS PURSUANT TO THE RIGHTS
AGREEMENT.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby (and any and all non-cash dividends, distributions,
rights, other Shares or other securities issued or issuable in respect thereof
or declared, paid or distributed in respect of such Shares (collectively,
"Distributions")), purchased pursuant to the Offer and irrevocably appoints the
Depositary the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares and all Distributions, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver certificates for such Shares
(individually, a "Share Certificate") and all Distributions, or transfer
ownership of such Shares and all Distributions on the account books maintained
by the Book-Entry Transfer Facility, together, in either case, with all
accompanying evidence of transfer and authenticity to, or upon the order of
Purchaser, (ii) present such Shares and all Distributions for transfer on the
books of the Company, and (iii) receive all benefits and otherwise exercise all
rights of beneficial ownership of such Shares and all Distributions, all in
accordance with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned irrevocably
appoints Ronald LaBow and Stewart E. Tabin as proxies of the undersigned, each
with full power of substitution, to vote in such manner as each such attorney
and proxy or his substitute shall, in his sole discretion, deem proper, and
otherwise to act (including pursuant to written consent) with respect to all the
Shares tendered hereby that have been accepted for payment by the Purchaser
prior to the time of such vote or action (and all Distributions of said Shares)
which the undersigned is entitled to vote or consent with respect to at any
meeting of stockholders of the Company, whether annual or special, and whether
or not an adjourned meeting (including without limitation the 1997 Annual
Meeting of the Shareholders of the Company). THIS PROXY IS IRREVOCABLE and is
granted in consideration of, and is effective upon, the acceptance for payment
of such Shares 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 other such Shares or
securities) and no subsequent proxies will be given (and if given will be deemed
not to be effective) with respect thereto by the undersigned.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and all Distributions, that the undersigned own(s) the Shares
tendered hereby and that, when such Shares are accepted for payment by
Purchaser, Purchaser will acquire good, marketable and unencumbered title
thereto and to all Distributions, free and clear of all liens, restrictions,
charges and encumbrances, and that none of such Shares and Distributions will be
subject to any adverse claim. The undersigned, upon request, shall execute and
deliver all additional documents deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned shall
remit and transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of
-4-
<PAGE>
transfer, and, pending such remittance and transfer or appropriate assurance
thereof, Purchaser shall be entitled to all rights and privileges as owner of
each such Distribution and may withhold the entire purchase price of the Shares
tendered hereby or deduct from such purchase price, the amount or value of such
Distribution as determined by Purchaser in its sole discretion.
No authority herein conferred or agreed to be conferred shall be
affected by, and all such authority shall survive, the death or incapacity of
the undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, executors, personal and legal representatives, administrators,
trustees in bankruptcy, successors and assigns of the undersigned. Except as
stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one
of the procedures described in "Procedures for Tendering Shares" of the Offer to
Purchase and in the Instructions hereto will constitute the undersigned's
acceptance of the terms and conditions of the Offer. Purchaser's acceptance for
payment of Shares tendered pursuant to the Offer will constitute a binding
agreement between the undersigned and Purchaser upon the terms and subject to
the conditions of the Offer. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, Purchaser may not be required
to accept for payment any of the Shares tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price and/or return any
certificates evidencing Shares not tendered or accepted for payment, in the
name(s) of the registered holder(s) appearing above under "Description of Shares
Tendered." Similarly, unless otherwise indicated in the box entitled "Special
Delivery Instructions," please mail the check for the purchase price and/or
return any certificates evidencing Shares not tendered or accepted for payment
(and accompanying documents, as appropriate) to the address(es) of the
registered holder(s) appearing above under "Description of Shares Tendered." In
the event that the box entitled "Special Payment Instructions" and/or "Special
Delivery Instructions" are completed, please issue the check for the purchase
price and/or return any certificates for Shares not purchased or not tendered or
accepted for payment in the name(s) of, and/or mail such check and/or return
such certificates to, the person(s) so indicated. Unless otherwise indicated
herein in the box entitled "Special Payment Instructions," please credit any
Shares tendered hereby and delivered by book-entry transfer, but which are not
purchased, by crediting the account at the Book-Entry Transfer Facility
designated above. The undersigned recognizes that Purchaser has no obligation,
pursuant to the Special Payment Instructions, to transfer any Shares from the
name of the registered holder(s) thereof if Purchaser does not accept for
payment any of the Shares tendered hereby.
-5-
<PAGE>
- --------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
SEE INSTRUCTIONS 1, 5, 6 AND 7 OF THIS
LETTER OF TRANSMITTAL)
To be completed ONLY if certificates 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 certificates to:
Name:
----------------------------------------------
(PLEASE PRINT)
Address:
--------------------------------------------
(Include Zip Code)
- ---------------------------------------------------
Taxpayer Identification or Social Security Number
(See Substitute Form W-9 on reverse)
- --------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7 OF THIS
LETTER OF TRANSMITTAL)
To be completed ONLY if certificates 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 certificates to:
Name:
----------------------------------------------
(PLEASE PRINT)
Address:
-------------------------------------------
(INCLUDE ZIP CODE)
- ---------------------------------------------------
- --------------------------------------------------------
-6-
<PAGE>
- --------------------------------------------------------------------------------
SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
-----------------------------------
(SIGNATURE(S) OF HOLDER(S)
Dated: , 1997
(Must be signed by registered holder(s) exactly as name(s) appear(s) on share
certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith.
If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, please provide the following information. See
Instruction 5 of this Letter of Transmittal.)
Name(s):
-------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title):
-----------------------------------------------------
Address:
-------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
--------------------------------------------
Tax Identification or Social Security Number:
------------------------------
(COMPLETE SUBSTITUTE FOR W-9 ON REVERSE)
- --------------------------------------------------------------------------------
-7-
<PAGE>
- --------------------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5 OF THIS LETTER OF TRANSMITTAL)
Authorized Signature:
----------------------------------------------------
Name:
--------------------------------------------------------------------
(PLEASE PRINT)
Title:
-------------------------------------------------------------------
Name of Firm:
------------------------------------------------------------
Address:
-----------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
------------------------------------------
Dated: , 1997
- --------------------------------------------------------------------------------
-8-
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a firm which is a
bank, broker, dealer, credit union, savings association, or other entity that is
a member in good standing of the Securities Transfer Agents Medallion Program
(each, an "Eligible Institution"). No signature guarantee is required on this
Letter of Transmittal (i) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this document, shall include
any participant in the Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of Shares) of Shares tendered herewith,
unless such holder(s) has completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" included
herein, or (ii) if such Shares are tendered for the account of an Eligible
Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES. This
Letter of Transmittal is to be used either if certificates evidencing Shares
("Certificates") are to be forwarded herewith or if Shares are to be delivered
by book-entry transfer pursuant to the procedure set forth in "Procedures for
Tendering Shares" of the Offer to Purchase. Certificates evidencing all tendered
Shares, or confirmation of a book-entry transfer of such Shares, if such
procedure is available, into the Depositary's account at a Book-Entry Transfer
Facility pursuant to the procedures set forth in "Procedures for Tendering
Shares" of the Offer to Purchase, together with a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message, as defined below) and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth herein prior to the Expiration Date (as defined in "Terms of the Offer;
Proration; Expiration Date" of the Offer to Purchase). If Certificates are
forwarded to the Depositary in multiple deliveries, a properly completed and
duly executed Letter of Transmittal must accompany each such delivery.
Shareholders whose Certificates are not immediately available, who cannot
deliver their Certificates and all other required documents to the Depositary
prior to the Expiration Date or who cannot complete the procedure for delivery
by book-entry transfer on a timely basis may tender their Shares pursuant to the
guaranteed delivery procedure described in "Procedures for Tendering Shares" of
the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made
by or through an Eligible Institution; (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Purchaser herewith, must be received by the Depositary prior to the Expiration
Date; and (iii) in the case of a guarantee of Shares, the Certificates, in
proper form for transfer, or a confirmation of a book-entry transfer of such
Shares, if such procedure is available, into the Depositary's account at a
Book-Entry Transfer Facility, together with a properly completed and duly
executed Letter of Transmittal (or manually signed facsimile thereof) with any
required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message), and any other documents required by this Letter of
Transmittal, must be received by the Depositary within three New York Stock
Exchange, Inc. trading days after the date of execution of the Notice of
Guaranteed Delivery, all as described in "Procedures for Tendering Shares" of
the Offer to Purchase.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, CERTIFICATES AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE SOLE OPTION AND RISK OF THE TENDERING SHAREHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and
no fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering shareholders waive any right
to receive any notice of the acceptance of their Shares for payment.
-9-
<PAGE>
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the Certificate numbers, the number of Shares
evidenced by such Certificates and the number of Shares tendered should be
listed on a separate schedule and attached hereto.
4. PARTIAL TENDERS. (Not applicable to shareholders who tender by
book-entry transfer.) If fewer than all the Shares evidenced by any Certificate
delivered to the Depositary herewith are to be tendered hereby, fill in the
number of Shares which are to be tendered in the box entitled "Number of Shares
Tendered." In such cases, new Certificate(s) evidencing the remainder of the
Shares that were evidenced by the Certificates delivered to the Depositary
herewith will be sent to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the box entitled "Special Delivery Instructions,"
as soon as practicable after the expiration or termination of the Offer. All
Shares evidenced by Certificates delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the Certificates evidencing such Shares without
alteration, enlargement or any other change whatsoever.
If any Shares tendered hereby is owned of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of
the Shares tendered hereby, no endorsements of Certificates or separate stock
powers are required, unless payment is to be made to, or Certificates evidencing
Shares not tendered or not purchased are to be issued in the name of, a person
other than the registered holder(s), in which case, the Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Certificate(s). Signatures on such
Certificate(s) and stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Certificate(s) tendered
hereby must be endorsed or accompanied by appropriate stock powers, in either
case signed exactly as the name(s) of the registered holder(s) appear(s) on such
Certificate(s). Signatures on such Certificate(s) and stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Certificate(s) or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of such person's authority so to act must be
submitted.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this
Instruction 6, Purchaser will pay all stock transfer taxes with respect to the
sale and transfer of any Shares to it or its order pursuant to the Offer. If,
however, payment of the purchase price of any Shares purchased is to be made to,
or Certificate(s) evidencing Shares not tendered or not purchased are to be
issued in the name of, a person other than the registered holder(s), the amount
of any stock transfer taxes (whether imposed on the registered holder(s), such
other person or otherwise) payable on account of the transfer to such other
person will be deducted from the purchase price of such Shares purchased, unless
evidence satisfactory to Purchaser of the payment of such taxes, or exemption
therefrom, is submitted.
-10-
<PAGE>
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATE(S) EVIDENCING THE SHARES
TENDERED HEREBY.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the
purchase price of any Shares tendered hereby is to be issued, or Certificate(s)
evidencing Shares not tendered or not purchased are to be issued, in the name of
a person other than the person(s) signing this Letter of Transmittal or if such
check or any such Certificate is to be sent to someone other than the person(s)
signing this Letter of Transmittal or to the person(s) signing this Letter of
Transmittal but at an address other than that shown in the box entitled
"Description of Shares Tendered," the appropriate boxes on this Letter of
Transmittal must be completed. Shares tendered hereby by book-entry transfer may
request that Shares not purchased be credited to such account maintained at the
Book-Entry Transfer Facility as such shareholder may designate in the box
entitled "Special Payment Instructions" on the reverse hereof. If no such
instructions are given, all such Shares not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility as the account from
which such Shares were delivered.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for
assistance may be directed to the Information Agent at their respective
addresses or telephone numbers set forth herein. Additional copies of the Offer
to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and
the Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 may be obtained from the Information Agent or from brokers, dealers,
commercial banks or trust companies.
9. SUBSTITUTE FORM W-9. Each tendering shareholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN") on
the Substitute Form W-9 which is provided under "Important Tax Information"
below, and to certify, under penalties of perjury, that such number is correct
and that such shareholder is not subject to backup withholding of federal income
tax. If a tendering shareholder has been notified by the Internal Revenue
Service that such shareholder is subject to backup withholding, such shareholder
must cross out item (2) of the Certification box of the Substitute Form W-9,
unless such shareholder has since been notified by the Internal Revenue Service
that such shareholder is no longer subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
shareholder to 31% federal income tax withholding on the payment of the purchase
price of all Shares purchased from such shareholder. If the tendering
shareholder has not been issued a TIN and has applied for one or intends to
apply for one in the near future, such shareholder should write "Applied For" in
the space provided for the TIN in Part I of the Substitute Form W-9, and sign
and date the Substitute Form W-9. If "Applied For" is written in Part I and the
Depositary is not provided with a TIN within 60 days, the Depositary will
withhold 31% on all payments of the purchase price to such shareholder until a
TIN is provided to the Depositary.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the shareholder should
promptly notify the Depositary. The shareholder will then be instructed as to
the steps that must be taken in order to replace the certificate(s). This Letter
of Transmittal and related documents cannot be processed until the procedures
for replacing lost or destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
HEREOF), PROPERLY COMPLETED AND DULY EXECUTED, WITH ANY REQUIRED SIGNATURE
GUARANTEES, OR AN AGENT'S MESSAGE (TOGETHER WITH SHARE CERTIFICATES OR
CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A
PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE
RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER
TO PURCHASE).
-11-
<PAGE>
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Shares
are accepted for payment is required by law to provide the Depositary (as payer)
with such shareholder's correct TIN on Substitute Form W-9 below. If such
shareholder is an individual, the TIN is such shareholder's social security
number. If the Depositary is not provided with the correct TIN, the shareholder
may be subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such shareholder with respect to Shares
purchased pursuant to the Offer may be subject to backup withholding of 31%.
Certain shareholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such individual must submit a statement, signed under
penalties of perjury, attesting to such individual's exempt status. Forms of
such statements can be obtained from the Depositary. See the enclosed Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies with respect to a shareholder, the
Depositary is required to withhold 31% of any payments made to such shareholder.
Backup withholding is not an additional tax. Rather, the tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a
shareholder with respect to Shares purchased pursuant to the Offer, the
shareholder is required to notify the Depositary of such shareholder's correct
TIN by completing the form below certifying (a) that the TIN provided on
Substitute Form W-9 is correct (or that such shareholder is awaiting a TIN), and
(b) that (i) such shareholder has not been notified by the Internal Revenue
Service that such shareholder is subject to backup withholding as a result of a
failure to report all interest or dividends or (ii) the Internal Revenue Service
has notified such shareholder that such shareholder is no longer subject to
backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance on
which number to report. If the tendering shareholder has not been issued a TIN
and has applied for a number or intends to apply for a number in the near
future, the shareholder should write "Applied For" in the space provided for the
TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For" is
written in Part I and the Depositary is not provided with a TIN within 60 days,
the Depositary will withhold 31% of all payments of the purchase price to such
shareholder until a TIN is provided to the Depositary.
-12-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: HARRIS TRUST COMPANY OF NEW YORK, AS DEPOSITARY
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE BOX AT ----------------------
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Social Security Number
Department of the Treasury OR
Internal Revenue Service
-----------------------
Employer Identification
Number
(If awaiting TIN write
"Applied For")
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
Payer's Request for PART II--For Payees Exempt From Backup Withholding, see
Taxpayer the enclosed Guidelines and complete as
Identification instructed therein.
Number (TIN)
CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my
correct Taxpayer Identification
Number (or a Taxpayer
Identification Number has not been
issued to me and either (a) I have
mailed or delivered an application
to receive a Taxpayer
Identification Number to the
appropriate Internal Revenue
Service ("IRS") or Social Security
administration office or (b) I
intend to mail or deliver an
application in the near future. I
understand that if I do not provide
a Taxpayer Identification Number
within sixty (60) days, 31% of all
reportable payments made to me
thereafter will be withheld until I
provide a number), and
(2) I am not subject to backup
withholding because (a) I am exempt
from backup withholding, (b) I have
not been notified by the IRS that I
am subject to backup withholding as
a result of failure to report all
interest or dividends or (c) the
IRS has notified me that I am no
longer subject to backup
withholding.
CERTIFICATE INSTRUCTIONS--You must cross out item (2) above
if you have been notified by the IRS that you are subject
to backup withholding because of under reporting interest
or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup
withholding you received another notification from the IRS
that you are no longer subject to backup withholding, do
not cross out item (2). (Also see instructions in the
enclosed Guidelines.)
- --------------------------------------------------------------------------------
SIGNATURE: DATE: , 1997
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
Questions and requests for assistance or additional copies of the Offer
to Purchase, Letter of Transmittal and other tender offer materials may be
directed to the Information Agent set forth below:
The Information Agent for the Offer is:
GEORGESON & COMPANY INC.
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll-Free)
Banks and Brokers Call: (212) 440-9800 (Collect)
-13-
EXHIBIT (A)(16)
OFFER TO PURCHASE FOR CASH
UP TO 649,000 SHARES
OF
COMMON STOCK (INCLUDING THE ASSOCIATED RIGHTS)
OF
DYNAMICS CORPORATION OF AMERICA
AT
$45 NET PER SHARE
by
SB ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME
ON TUESDAY, APRIL 29, 1997 UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
April 15, 1997
TO BROKERS, DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND OTHER NOMINEES:
We are asking you to contact your clients for whom you hold shares of
common stock, par value $.10 per share (the "Shares"), of Dynamics Corporation
of America, a New York corporation (the "Company"). Please bring to their
attention as promptly as possible the offer being made by SB Acquisition Corp.,
a New York corporation ("Purchaser") and a wholly owned subsidiary of WHX
Corporation, a Delaware corporation ("Parent"), to purchase up to 649,000
Shares, including the associated Common Stock Purchase Rights issued pursuant to
the Rights Agreement, dated as of January 30, 1986, as amended on December 27,
1995, between the Company and First National Bank of Boston, as Rights Agent, at
a price of $45 per Share, net to the seller in cash, without interest thereon
(the "Offer Price"), upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated March 31, 1997 (the "Offer to Purchase"), as
amended and supplemented by the Supplements thereto, dated April 10, 1997 and
April 15, 1997 (the "Supplements") and the related Letters of Transmittal
(which, as amended from time to time, together constitute the "Offer") enclosed
herewith.
For your information and for forwarding to your clients for whom you
hold Shares registered in your name or in the name of your nominee, or who hold
Shares registered in their own names, we are enclosing the following documents:
1. Supplement, dated April 15, 1997
2. Revised Letter of Transmittal to be used by holders of shares
in accepting the Offer. Facsimile copies of the Letter of
Transmittal may be used to accept the Offer;
3. Notice of Guaranteed Delivery to be used to accept the Offer
if the certificates evidencing such Shares are not immediately
available or time will not permit all required documents to
reach the Depositary prior to the Expiration Date or the
procedure for book-entry transfer cannot be completed on a
timely basis.
4. A letter which may be sent to your clients for whose accounts
you hold Shares registered in your name or in the name of your
nominees, with space provided for obtaining such clients'
instructions with regard to the Offer;
<PAGE>
5. Guidelines of the Internal Revenue Service for Certification
of Taxpayer Identification Number on Substitute Form W-9; and
6. Return envelope addressed to the Depositary.
We are asking you to contact your clients for whom you hold Shares
registered in your name (or in the name of your nominee) or who hold Shares
registered in their own names. Please bring the Offer to their attention as
promptly as possible. The Purchaser will not pay any fees or commissions to any
broker or dealer or any other person (other than the Information Agent) for
soliciting tenders of Shares pursuant to the Offer. You will be reimbursed by
the Purchaser for customary mailing expenses incurred by you in forwarding any
of the enclosed materials to your clients. The Purchaser will pay or cause to be
paid any stock transfer taxes payable on the sale and transfer of Shares to it
or its order, except as otherwise provided in Instruction 6 of the Letter of
Transmittal.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, EASTERN TIME, ON TUESDAY, APRIL 29, 1997, UNLESS THE OFFER IS
EXTENDED.
In order to take advantage of the Offer, (1) a duly executed and
properly completed Letter of Transmittal, and, if necessary, any other required
documents should be sent to the Depositary and (2) either certificates
representing the tendered Shares should be delivered to the Depositary, or such
Shares should be tendered by book-entry transfer into the Depositary's account
at one of the book-entry transfer facilities (as defined in the Offer to
Purchase), all in accordance with the Instructions set forth in the Letter of
Transmittal, the Offer to Purchase and the Supplements.
Any inquiries you may have with respect to the Offer should be
addressed to the Information Agent at the address and telephone number as set
forth on the back cover page of the Offer to Purchase or the Supplements.
Additional copies of the above documents may be obtained from the
Information Agent, at the address and telephone number set forth on the back
cover of the Offer to Purchase or the Supplement.
Very truly yours,
SB ACQUISITION CORP.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY OTHER PERSON AS AN AGENT OF PARENT, PURCHASER, THE DEPOSITARY OR THE
INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR
ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF
THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED AND THE
STATEMENTS CONTAINED THEREIN.
-2-
EXHIBIT (A)(17)
OFFER TO PURCHASE FOR CASH
UP TO 649,000 SHARES
OF
COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
DYNAMICS CORPORATION OF AMERICA
AT
$45 NET PER SHARE
by
SB ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME
ON TUESDAY, APRIL 29, 1997 UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
April 15, 1997
TO OUR CLIENTS:
Enclosed for your consideration is an Offer to Purchase, dated March
31, 1997 (the "Offer to Purchase"), as amended and supplemented by the
Supplements thereto, dated April 10, 1997 and April 15, 1997 (the "Supplements")
and the related Letters of Transmittal (which, as amended from time to time,
together constitute the "Offer") in connection with the Offer by SB Acquisition
Corp., a New York corporation ("Purchaser") and a wholly owned subsidiary of WHX
Corporation, a Delaware corporation ("Parent"), to purchase up to 649,000 shares
of common stock, par value $.10 per share (the "Shares") of Dynamics Corporation
of America, a New York corporation (the "Company"), including the associated
Common Stock Purchase Rights issued pursuant to the Rights Agreement, dated as
of January 30, 1986, as amended on December 27, 1995, between the Company and
First National Bank of Boston, as Rights Agent, at a price of $45 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer.
THE MATERIAL IS BEING SENT TO YOU AS THE BENEFICIAL OWNER OF SHARES
HELD BY US FOR YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME. WE ARE THE HOLDER
OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE
MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE
LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT
BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on
your behalf any or all of the Shares held by us for your account, upon the terms
and subject to the conditions set forth in the Offer.
Your attention is invited to the following:
1. The tender price is $45 per Share, net to the seller in cash.
2. The Offer, and withdrawal rights will expire at 12:00 Midnight,
New York City time, on Tuesday, April 29, 1997, unless the Offer
is extended.
3. The Offer is being made for up to 17% of the outstanding Shares.
<PAGE>
4. The Offer is conditioned upon, among other things, there not
having been entered into or effectuated any agreements with any
person impairing the Purchaser's ability to acquire the Company or
otherwise diminish the expected economic value to Purchaser of the
acquisition of the Company.
5. Tendering shareholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the
Letter of Transmittal, stock transfer taxes on the purchase of
Shares by Purchaser pursuant to the Offer.
The Offer is made solely by the Offer to Purchase, the Supplements and
the related Letters of Transmittal and is being made to all holders of Shares.
Purchaser is not aware of any state where the making of the Offer is prohibited
by administrative or judicial action pursuant to any valid state statute. If
Purchaser becomes aware of any valid state statute prohibiting the making of the
Offer or the acceptance of Shares pursuant thereto, Purchaser will make a good
faith effort to comply with such state statute. If, after such good faith
effort, Purchaser cannot comply with such state statute, the Offer will not be
made to (nor will tenders be accepted from or on behalf of) the holders of
Shares in such state. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of Purchaser by the Dealer Managers
or one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
If you wish to have us tender any or all of your Shares, please so
instruct us by completing, executing and returning to us the instruction form
contained in this letter. An envelope in which to return your instructions to us
is enclosed. If you authorize the tender of your Shares, all such Shares will be
tendered unless otherwise specified on the instruction form set forth in this
letter. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US
TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
-2-
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER
TO PURCHASE FOR CASH UP TO 649,000
SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED RIGHTS)
OF
DYNAMICS CORPORATION OF AMERICA
The undersigned acknowledge(s) receipt of your letter, the enclosed
Offer to Purchase, dated March 31, 1997, as amended and supplemented by the
Supplements thereto, dated April 10, 1997 and April 15, 1997 and the related
Letters of Transmittal (which, as amended from time to time, together constitute
the "Offer"), in connection with the offer by SB Acquisition Corp., a New York
corporation ("Purchaser") and a wholly owned subsidiary of WHX Corporation, a
Delaware corporation, to purchase up 649,000 shares of common stock, par value
$.10 per share (the "Shares") of Dynamics Corporation of America, a New York
corporation, including the associated Common Stock Purchase Rights issued
pursuant to the Rights Agreement, dated as of January 30, 1986, as amended on
December 27, 1995, between the Company and First National Bank of Boston, as
Rights Agent, at a price of $45 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer.
This will instruct you to tender to Purchaser the number of Shares
indicated below (or, if no number is indicated in either appropriate space
below, all Shares) held by you for the account of the undersigned, upon the
terms and subject to the conditions set forth in the Offer.
NUMBER OF SHARES TO BE TENDERED:*
________________Shares
Account Number: _______________
Dated: _____________, 1997
SIGN HERE
----------------------------------------
----------------------------------------
Signature(s)
----------------------------------------
----------------------------------------
Please Type or Print Name(s)
----------------------------------------
----------------------------------------
Please Type or Print
Address(es) Here
----------------------------------------
Area Code and Telephone Number
----------------------------------------
Taxpayer Identification or
Social Security Number(s)
- --------
* Unless otherwise indicated, it will be assumed that all Shares held
by us for your account are to be tendered.
-3-
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF
COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
DYNAMICS CORPORATION OF AMERICA
TO
SB ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
WHX CORPORATION
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in Section 3 of the Offer to Purchase (as defined below),
this form, or a form substantially equivalent to this form, must be used to
accept the Offer (as defined below) if the certificates representing shares of
common stock, par value $.10 per share of Dynamics Corporation of America (the
"Shares"), are not immediately available or time will not permit all required
documents to reach the Depositary prior to the Expiration Date (as defined in
the Offer to Purchase) or the procedures for book-entry transfer cannot be
completed on a timely basis. Such form may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Depositary and must include a
guarantee by an Eligible Institution (as defined in Section 3 of the Offer to
Purchase). See Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
By Mail: By Overnight Courier: By Hand:
Wall Street Station 77 Water Street, 4th Receive Window
P.O. Box 1023 Floor 77 Water Street, 5th
New York, NY 10268-1023 New York, NY 10005 Floor
New York, NY 10005
By Facsimile Transmission:
(for Eligible Institutions
Only)
(212) 701-7636 or 7637
For Information Telephone (call
collect):
(212) 701-7624
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on
a Letter of Transmittal is required to be guaranteed by an "Eligible
Institution" under the instructions thereto, such signature guarantee must
appear in the applicable space provided in the signature box on the Letter of
Transmittal.
LADIES AND GENTLEMEN:
The undersigned hereby tenders to SB Acquisition Corp., a New York
corporation and a wholly owned subsidiary of WHX Corporation, a Delaware
corporation, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated March 31, 1997, as amended and supplemented from time to time
(the "Offer to Purchase"), and the related Letter of Transmittal (which, as
amended from time to time, together constitute the "Offer"), receipt of each of
which is hereby acknowledged, the number of Shares specified below pursuant to
the guaranteed delivery procedures described in "Procedures for Tendering
Shares" of the Offer to Purchase.
-2-
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
<TABLE>
<CAPTION>
- ------------------------------------------------- --------------------------------
<S> <C>
Number of Shares: Name(s) of Record Holder(s):
Share Certificate Numbers (if available): -----------------------------
PLEASE TYPE OR PRINT
- ---------------------------------------------
Address(es)------------------
/ / Check here if Shares will be delivered by
book-entry transfer. Zip Code
Check box of applicable book-entry transfer Area Code and Telephone Number:
facility:
------------------------------
------------------------------
/ / DTC / / PDTC SIGNATURE(S)
Account Number Dated: , 1997
--------------------------------- ---------------
Dated: , 1997
- ------------------------------------------------- --------------------------------
</TABLE>
The undersigned, a participant in the Security Transfer Agents Medallion
Program (each, an "Eligible Institution"), hereby guarantees that either the
certificates representing the Shares tendered hereby in proper form for
transfer, or timely confirmation of a book-entry transfer of such Shares into
the Depositary's account at The Depository Trust Company or the Philadelphia
Depository Trust Company (pursuant to procedures set forth in Section 3 of the
Offer to Purchase), together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees and
any other documents required by the Letter of Transmittal, will be received by
the Depositary at one of its addresses set forth above within three (3) New York
Stock Exchange trading days after the date of execution hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares and associated Rights to the Depositary within the time
period shown herein. Failure to do so could result in financial loss to such
Eligible Institution.
Name of Firm:
----------------------------- ----------------------------------
AUTHORIZED SIGNATURE
Address: Name:
----------------------------------- -----------------------------
Zip Code PLEASE TYPE OR PRINT
Title:
--------------------------
Area Code and
Telephone Number: Dated: , 1997
------------------------- --------------------
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR ASSOCIATED RIGHTS WITH THIS NOTICE.
SUCH CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
-3-
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DYNAMICS CORPORATION OF AMERICA, : CIVIL ACTION NO.
:
Plaintiff, : 3:97 CV 702 (GLG)
:
VS. :
:
WHX CORPORATION and SB ACQUISI- :
TION CORP., :
:
Defendants. : April 14, 1997
COMPLAINT
Plaintiff Dynamics Corporation of America ("DCA"), by its
attorneys, alleges for its complaint for declaratory, injunctive and other
relief against WHX Corporation ("WHX") and SB Acquisition Corp. ("SB"), upon
knowledge as to itself and upon information and belief as to all other matters,
as follows:
NATURE OF THIS ACTION
1. WHX, through its wholly owned subsidiary SB
(collectively, "WHX"), has commenced an unlawful and unsolicited tender offer
(the "WHX Offer") for, at present, seventeen percent of DCA's outstanding common
stock. The WHX Offer is stated to be the first step in an attempt by WHX to
acquire DCA, which is headquartered in Greenwich, Connecticut and maintains
manufacturing facilities in Bridgeport and New Hartford. As part of this effort,
WHX has also announced that it intends to solicit proxies from DCA's
shareholders to attempt to enable it (i) to elect four of its nominees to DCA's
Board of Directors (the "Board") and (ii) to adopt by-laws allowing holders of
9.9% of DCA's outstanding shares to call a special meeting of shareholders
allowing removal of present directors at any time without cause.
2. In connection with the WHX Offer and proxy solicitation
effort, WHX filed with the Securities and Exchange Commission (the "SEC") and
disseminated to DCA shareholders an offer to purchase (the "Offer to Purchase")
and supplement
<PAGE>
thereto and filed a preliminary proxy statement, which contained false and
misleading information in violation of the federal securities laws. As an
example, in a Supplement to the Offer to Purchase dated April 10, WHX
acknowledged that it had misstated the position of the SEC that certain terms of
the WHX Offer were unlawful.
3. Among other violations of the federal securities laws,
the WHX Offer originally contained a condition whereby WHX would only purchase
DCA shares from certain tendering shareholders who could transfer or deliver a
valid proxy for the DCA Annual Meeting of Shareholders then scheduled for May 2,
1997. Such discriminatory treatment of the other DCA shareholders who may wish
to have some or all of their shares purchased was a deliberate violation of
federal law, which explicitly requires that tender offers be extended to all
shareholders of a target company.
4. Incredibly, defendants also admitted that prior to
initiating the original WHX Offer, they had been advised by the staff of the SEC
that the Record Holder Condition is not permissible under the All-Holders Rule.
Without regard to -- indeed, in the face of -- the SEC's advice, defendants
commenced the WHX Offer.
5. WHX also disclosed in its Offer to Purchase that it
purported to reserve the right to increase or decrease the number of shares
purchased in the offer, without being required to extend the expiration date or
certain other deadlines. This, too, was a deliberate violation of applicable
federal law. Again, defendants disclosed that they had been advised by the staff
of the SEC that it took no position on this issue. Again, defendants have now
acknowledged that this was a false statement -- in fact, the SEC's staff took
the position that this provision was also unlawful.
6. The WHX Offer and other of WHX's public disclosures
concerning DCA contain numerous materially false and misleading disclosures in
violation of Sections 13(d), 14(a), (d) and (e) of the Securities Exchange Act
of 1934 (the "Exchange Act") and the SEC rules and regulations promulgated
thereunder beyond the "two erroneous statements" WHX conceded making. These
statements were disseminated by defendants within this district. Among other
things, the WHX Offer fails to disclose that:
o Despite express denials by WHX to the contrary,
WHX is part of a group under Section 13(d) of the
Exchange Act with Warren Lichtenstein, Steel
Partners II, L.P. and Steel Partners Services Ltd.
(collectively, "Lichtenstein"), that collectively
owns 5.5% of DCA's outstanding common stock;
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o Because WHX is part of a Section 13(d) group, upon
completion of the tender offer WHX's proposed merger
with DCA would be prohibited for five years by New
York Business Corporation Law ("NYBCL") ss.
912(b);
o Because WHX is part of a Section 13(d) group, As part
of this Section 13(d) group, the completion of the
tender offer by WHX would trigger DCA's Shareholders'
Rights Plan;
o Regardless of the existence of the 13(d) group, if
the WHX Offer is completed, approval of a merger
between DCA and WHX would have to be obtained by an
affirmative vote of 80% of the outstanding shares
entitled to vote, rather than the two-thirds stated
in the WHX Offer; and
o Amendment to the DCA by-laws requires the affirmative
vote of 80% of DCA's shareholders, not the majority
as stated by WHX in the preliminary proxy statement.
7. As a result of WHX's unlawful conduct, DCA shareholders
have suffered and will continue to suffer irreparable injury in that, among
other things, they will be deprived of full and fair disclosure and the
protections Congress and the SEC have determined they should be afforded and
they will be forced to make investment and voting decisions on the basis of
concededly "erroneous" statements by WHX.
JURISDICTION
8. This Court has jurisdiction over the claims asserted
herein pursuant to Section 27 of the Securities Exchange Act of 1934 (the
"Exchange Act"), 15 U.S.C. ss. 78aa; 28 U.S.C. ss. 1331; and principles of
supplemental jurisdiction, 28 U.S.C. ss. 1367.
THE PARTIES
PLAINTIFF
9. DCA is a New York corporation with its principal
executive offices located in Greenwich, Connecticut. Founded in 1924, DCA is a
diversified manufacturer of commercial and industrial products with facilities
located in New Hartford and Bridgeport that employ nearly two hundred employees
in this State. DCA's common stock is registered with the SEC under Section 12 of
the Exchange Act and its shares are listed for trading on the New York Stock
Exchange. DCA currently holds a
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44.1% stake in CTS Corporation ("CTS"), an Indiana corporation whose shares are
also listed on the New York Stock Exchange and which manufacturers electronic
and electromechanical components for, among others, the defense and aerospace,
automotive, computer equipment and consumer electronics markets. The single
largest contribution to DCA's earnings in 1996 came from its equity investment
in CTS.
DEFENDANTS
10. WHX, a Delaware corporation with its principal executive
offices located in New York City, is primarily a domestic integrated steel
manufacturer. However, due to a strike against WHX by the United Steelworkers of
America which began on October 1, 1996 and has continued to date, no steel
products are being produced or shipped at eight of WHX's plants; WHX lost
approximately $34.6 million in the fourth quarter of 1996.
11. SB, a New York corporation with its principal executive
offices in New York City, is a wholly owned subsidiary of WHX. SB was recently
organized solely to act as the acquiring corporation in connection with the WHX
Offer. SB has no significant assets other than the ownership of approximately
2.9% of DCA's outstanding shares and engages in no activities other than those
incident to the transactions contemplated by the WHX Offer.
BACKGROUND
12. Ronald LaBow ("LaBow"), Chairman of WHX, has been
described by the press as a corporate "raider." As a longtime bankruptcy
specialist at a New York City investment bank, he earned the reputation as being
one of Wall Street's leading "vulture" investors. LaBow left that firm in 1989
to form a partnership that battled for control of the then-bankrupt
Wheeling-Pittsburgh Steel Corporation ("WPS"). WPS emerged from Chapter 11
protection in 1991, with LaBow as Chairman. WPS and other affiliates were
reorganized into a new holding company, WHX, on July 26, 1994.
LaBow's Prior Takeover Activity
o LaBow's Activities with Warren Lichtenstein
13. WHX concedes that LaBow and Warren Lichtenstein "have had
business dealings with each other for several years."
14. In particular, although not disclosed by LaBow to DCA
shareholders, LaBow and Lichtenstein, among others, were members of a dissident
shareholders' committee formed in 1994 to effect a change in the composition of
the board of directors of Regency Equities Corp. ("Regency"), a real estate
company. LaBow
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is, and was at the time, a director of Regency. The "Regency Shareholders
Committee" (the "Committee") filed several Schedule 13Ds with the SEC pursuant
to Section 13(d) of the Exchange Act. According to those SEC filings,
Lichtenstein was chairman of the Committee and LaBow had agreed to finance part
of the proxy fight
they waged.
15. According to those SEC filings, the Committee was formed
to solicit proxies to elect a slate of directors which would support a total or
partial liquidation of Regency. The Committee's nominees included Lichtenstein,
LaBow and Steven Wolosky, a lawyer with Olshan Grundman Frome & Rosenzweig LLP
("Olshan Grundman"), which acted as counsel to the Committee and is also acting
as counsel to WHX in connection with the DCA offer and serves as counsel to
Lichtenstein and his affiliated partnerships.
16. Robert Frome, a name partner of Olshan Grundman, was
another reporting person on the Schedule 13D. Marvin L. Olshan, a name partner
of Olshan Grundman, is also a director and secretary of WHX.
o LaBow's Hostile Attempt to Take Over Teledyne,
Inc.
17. By skimping on pension costs, WHX began to face serious
problems with pension funding and medical care for retiring workers. However,
these cost cutting measures allowed WHX to accumulate a war chest of $440
million. In late 1994, in an effort to ease upcoming negotiations with the
United Steelworkers of America (the "Steelworkers"), WHX sought to acquire
Teledyne, Inc. ("Teledyne"), a California-based aviation and electronics
conglomerate, reportedly to syphon off some of its pension monies.
18. According to public accounts, WHX was hoping to use
Teledyne's $850 million pension surplus to cover costs in settling pension
issues raised in negotiations with the Steelworkers. Despite its hopes, WHX's
unsolicited takeover attempt was rebuffed by Teledyne. In doing so, Teledyne
announced that it would not consider even an all-cash offer from WHX because WHX
did "not offer an attractive combination" and there were "no business synergies
that [they could] see whatsoever."
19. WHX continued its unsolicited takeover attempts of
Teledyne. In April 1996, after a sixteen month battle in which WHX made four
bids for Teledyne and launched two proxy fights, Teledyne announced it had
agreed to a $3.2 billion merger with Allegheny Ludlum Steel Corp., the
Pittsburgh-based steelmaker, ending LaBow's efforts for WHX to acquire Teledyne
and its pension surplus.
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THE WHX STRIKE
20. Unable to raid Teledyne's surplus pension funds, WHX was
stymied in its ability to resolve its differences over pension and retirement
benefits with the Steelworkers. On or about October 1, 1996, the Steelworkers'
contract expired and 4,500 union workers in three states struck WHX, idling WHX
plants in Pennsylvania, Ohio and West Virginia.
21. The strike continues today, making it the longest strike
against a major steelmaker in a decade. Union officials have called for LaBow to
use WHX's massive stockpile of cash to give the Steelworkers a guaranteed
defined pension plan. LaBow has countered that WHX needs this war chest, in part
to pursue possible acquisitions.
THE UNLAWFUL WHX TENDER OFFER FOR DCA
22. Faced with the longest strike against a steel mill in a
decade, LaBow turned WHX's attention toward DCA. Among other things, DCA owns
44% of CTS, which has over $100 million in pension surplus and cash.
23. On Thursday, March 27, 1997, just before the Easter
holiday weekend, DCA received an unsolicited offer from WHX for a cash merger at
$40 per share, subject to a number of conditions. WHX peremptorily informed DCA
that if it did not hear from DCA by the close of business the next day, WHX was
authorized to launch a proxy fight and cash tender offer. Contrary to the
disclosure in WHX's Offer to Purchase and other proxy solicitation materials,
DCA promptly acknowledged receipt of WHX's letter on March 27, 1997 and advised
WHX that several of DCA's directors were traveling for the Easter weekend and
that DCA's offices would be closed the next day for Good Friday. DCA's President
further stated that he would be in a position to inform all of the directors the
following week of WHX's correspondence and would communicate further with WHX
thereafter.
24. Ignoring DCA's response and showing that its March 27
letter was not really a sincere attempt to open negotiations, on March 31, 1997,
WHX filed a Tender Offer Statement on Schedule 14D-1 with the SEC pursuant to
Section 14(d)(1) of the Exchange Act and mailed its Offer to Purchase to DCA
shareholders. The Offer to Purchase is the principal document setting forth the
terms and conditions of the WHX Offer and is filed as an exhibit to WHX's
Schedule 14D-1.
25. According to the initial Offer to Purchase, WHX
originally proposed to purchase for $40 per share in cash up to a number of DCA
shares (then stated as up to 649,000 shares) which, when combined with the
approximately 2.9% already owned by WHX,
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would total 19.9% of DCA's outstanding shares. The WHX Offer is currently
scheduled to expire on April 29, 1997.
26. WHX's stated purpose for the WHX Offer is to acquire a
significant equity interest in DCA as the first step in a business combination
of DCA and WHX.
27. WHX has also announced that in connection with DCA's
Annual Meeting, it intends to solicit proxies from DCA's shareholders to enable
it (i) to elect four nominees to the DCA Board of Directors, (ii) to adopt
by-laws allowing holders of 9.9% of DCA's outstanding shares to call a special
meeting of shareholders and thereafter allowing removal of directors at any time
without cause and (iii) to repeal any amendments to DCA's by-laws made after
March 14.
WHX FLOUTS THE SEC AND THEN RETREATS
28. From the outset, the WHX Offer violated federal law. In
fact, WHX knew that the SEC took this position but both ignored and
misrepresented its view to DCA shareholders.
29. Among other things, the original WHX Offer was not open
to all DCA shareholders. Rather, in violation of the SEC's All-Holders Rule, 17
C.F.R. ss. 240.14d-10(a), WHX had imposed a "Record Holder Condition" pursuant
to which it would only purchase DCA shares from certain tendering shareholders
who could transfer or deliver a valid proxy for the Annual Meeting.
30. Remarkably, WHX acknowledged that it had been informally
advised by the SEC that the Record Holder Condition is not permissible under
Rule 14d-10(a)(1), yet it still commenced the original WHX Offer in the face of
such a warning.
31. In addition, WHX purported in its original offer to
reserve the right to adjust the number of shares it was willing to purchase
without affording DCA shareholders federally mandated time to consider fully
such a development. WHX is admittedly attempting to acquire only up to a number
of shares through the Offer that when combined with its previous holdings of DCA
will remain below the level of ownership which triggers DCA's shareholder rights
agreement (the "Rights Agreement").
32. The Rights Agreement currently is triggered when a
shareholder acquires 20% or commences a tender offer for 25% of the outstanding
common stock. The original WHX Offer provided that in the event DCA amends its
Rights Agreement to reduce the ownership level at which the Rights Agreement is
triggered, the specified percentage of DCA shares that WHX intends to accept
shall automatically be reduced commensurately (the "Automatic Adjustment").
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33. WHX asserted in the original WHX Offer that this
Automatic Adjustment "shall not give rise to any extension of the expiration,
protection or withdrawal dates of the Offer" under SEC Rule 14e-1(b), 17 C.F.R.
ss. 240.14e- 1(b). However, Rule 14e-1(b) provides, in pertinent part, that a
tender offer shall not increase or decrease the percentage of the class of stock
being sought unless such offer remains open for at least ten business days from
the date that notice of such change is published or mailed to shareholders.
34. In its Offer to Purchase, WHX falsely stated that it had
been "informally advised by the staff of the SEC that it does not take any
position on this issue."
35. In furtherance of WHX's announced intentions, WHX filed a
preliminary proxy statement with the SEC on March 31, 1997 which, as with the
Offer to Purchase and as alleged more fully below, contains numerous false and
misleading statements and material omissions.
36. WHX also filed a letter to DCA shareholders dated April
7, 1997 with the SEC in furtherance of its proxy solicitation effort. The letter
touted WHX's unlawful $40 offer and proposed merger.
37. Two days later, on April 9, 1997, WHX issued a press
release announcing, without any explanation, that it was amending its tender
offer by (i) unilaterally raising the price of the offer from $40 to $45 per
share; (ii) withdrawing the unlawful Record Holder Condition; and (iii) removing
the unlawful Automatic Adjustment provision, thereby fixing the number of shares
sought to be purchased at up to 649,000 or 17% of the outstanding shares.
38. The next day, WHX filed with the SEC and disseminated to
DCA shareholders a Supplement to its Offer to Purchase, in which it admitted not
only that it had knowingly and willfully commenced its unlawful tender offer in
the face of the SEC's warning that the conditions at issue would violate the
federal securities laws, but that WHX had misrepresented to DCA shareholders the
SEC's position concerning those matters. Specifically, WHX revealed that:
The Offer to Purchase contained two erroneous statements: the
first was regarding the non-compliance of the Record Holder Condition with the
"all holders" provision under Rule 14d-10, and the second was regarding the
non-applicability of the Specified Percentage to Rule 14e-1. In addition, those
statements also included [WHX]'s view of the SEC Staff's position with respect
to those two rules. As noted in this Supplement, the Record Holder Condition has
been deleted, and the Specified
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Percentage has been changed to a fixed number of Shares (namely, up to 649,000
Shares). Furthermore, [WHX] erroneously presented the SEC Staff's position with
respect to those two rules.
By sending this Supplement to shareholders, [WHX] is seeking
to provide corrective disclosure; toward this end, [WHX] acknowledges the SEC
Staff's position that the Record Holder Condition is not permissible under Rule
14d-10 and that the Specified Percentage is not permissible under Rule 14e-1.
MATERIAL OMISSIONS AND MISREPRESENTATIONS
39. The WHX Offer to Purchase and other proxy solicitation
materials contain numerous material omissions and misrepresentations.
o The Undisclosed 13D Group
40. WHX failed to inform DCA shareholders of its true
affiliation with Warren Lichtenstein and his affiliates, Steel Partners II, L.P.
and Steel Partners Services, Ltd. (collectively "Lichtenstein").
41. As admitted in the Offer to Purchase and as alleged
above, Lichtenstein and LaBow have acted together with respect to matters of
corporate control and in other business dealings. At a time unknown to DCA, WHX
and Lichtenstein agreed to cooperate and act in concert with respect to the WHX
Offer, proxy solicitation and proposed merger.
42. WHX also concedes that LaBow had known of Lichtenstein's
5.5% ownership interest in DCA since late 1994 or early 1995. LaBow approached
Lichtenstein only a few weeks before commencing the WHX Offer to ask if
Lichtenstein would be willing to sell all of his DCA shares to WHX or to
establish a joint arrangement for WHX to acquire additional shares of DCA.
43. Lichtenstein agreed to sell 80,000 DCA shares to WHX for
$32.50 on March 13, only two weeks before LaBow proposed the merger between DCA
and WHX whereby WHX would pay $40 per DCA share. LaBow has since raised his
offer to $45.
44. Despite express denials of working in concert or as a
group, LaBow purchased 80,000 shares of DCA from his longtime business associate
with the same legal counsel for over $10 less than the price for which WHX is
purportedly offering to acquire DCA shares three weeks later and after having
supposedly been invited by LaBow to join WHX in acquiring additional DCA shares.
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45. In fact, the compelling inference is as follows. WHX and
Lichtenstein arranged for Lichtenstein to sell nearly 3% of DCA's outstanding
shares to WHX in connection with the WHX Offer. Purchasing such shares through
this transaction would be less expensive to WHX than attempting to buy the same
block of shares on the New York Stock Exchange. Moreover, after the transaction,
Lichtenstein purports to no longer be a reporting person, having supposedly
reduced his DCA shareholdings below 5%, and thereby taking the position that he
does not have to reveal his plans or purposes related to DCA shares.
46. On March 31, 1997, the day the WHX Offer was announced,
Lichtenstein called DCA from Aspen, Colorado to inquire as to what was happening
in connection with the WHX Offer. In that conversation, Lichtenstein was asked
if he knew who had purchased the 80,000 DCA shares Lichtenstein had sold on
March 13. In an effort to conceal their group status, Lichtenstein denied
knowing who purchased such shares -- an obvious misrepresentation in light of
even the limited disclosure contained in the WHX Offer.
47. Moreover, subsequent to the WHX Offer being commenced,
Lichtenstein stated that, "We are thinking in the range of $40-$60 per share."
48. WHX takes great pains in its Offer to Purchase and its
preliminary proxy statement to deny that WHX and Lichtenstein are acting as a
"group." In view of all of the foregoing, WHX's purported "disclaimer" that it
was acting as a group with Steel Partners and Lichtenstein is false. WHX failed
to disclose to DCA Shareholders its status as a group with Lichtenstein, thereby
concealing from DCA shareholders, among other things, certain legally-required
disclosures such as the current identity and background of Lichtenstein and his
affiliated partnerships, as well as their intentions with respect to their
holdings in DCA.
49. WHX also failed to disclose that as a result of its group
status, if it successfully completes the WHX Offer, the proposed merger which
WHX threatens to complete will be prohibited for five years pursuant to
applicable New York law.
50. Similarly, WHX did not disclose that if it completes the
WHX Offer, its affiliation with this group will trigger the Rights Agreement,
thereby making the proposed merger prohibitively expensive.
o The 80% Merger Vote
51. WHX has repeatedly disclosed to DCA shareholders that it
currently intends, as soon as possible following completion of the WHX Offer, to
seek to elect four nominees to
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the DCA board and, thereafter, to seek to consummate a merger between WHX and
DCA.
52. The Offer to Purchase materially misrepresents the number
of votes required to approve the proposed merger between WHX and DCA and falsely
describes the steps needed to consummate WHX's proposed merger as follows:
Pursuant to New York Business Corporation Law ("NYBCL"),
consummation of the Merger would require the adoption of a resolution by [DCA's]
Board of Directors Approving the Merger and the affirmative vote of the holders
of two-thirds of all of the Shares entitled to vote.
53. Article XV of DCA's Certificate of Incorporation, as
amended in 1975, however, actually provides that such a transaction would
require the affirmative vote of not fewer than 80% of DCA's outstanding stock.
54. WHX, therefore, failed to inform DCA shareholders that
DCA's Certificate of Incorporation provides that a merger with a beneficial
owner of 5% of the outstanding common stock, which WHX would be if the WHX Offer
is successful, requires the affirmative vote of 80% of the shares entitled to
vote, rather than a mere two-thirds. WHX also fails to disclose the effect of
this provision on its plans for DCA. WHX's other solicitation materials make no
disclosure about this critical issue at all.
o The 80% Shareholder Vote to Amend the By-Law
55. Similarly, although WHX has stated that it intends to
seek shareholder approval of by-law amendments which will permit holders of at
least 9.9% of DCA's shares to call a special meeting and to permit the removal
of directors without cause, WHX misrepresents what is required for shareholders
to approve amendments to DCA's by-laws.
56. WHX's preliminary proxy statement filed with the SEC
pursuant to Section 14(a) of the Exchange Act falsely represents that:
The affirmative vote of the holders of a majority of the
Shares represented in person or by proxy at the Annual Meeting is required to
adopt [WHX's proposed by-law amendments].
57. However, Article XV(G) of DCA's Certificate of
Incorporation, as amended in 1975, provides:
The affirmative vote of a majority of the directors then in
office or the affirmative vote of not less than 80% of
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the outstanding stock of the Corporation entitled to vote thereon shall be
required to adopt, amend or repeal the By-Laws of the Corporation.
58. WHX's Offer to Purchase is silent on this issue as well.
o WHX Misrepresents DCA's Prompt Response
59. Both the Offer to Purchase and the preliminary proxy
statement contain a false and misleading statement regarding DCA's response to
WHX's March 27, 1997 letter (the "March 27 Letter") proposing a merger with WHX.
60. LaBow, as Chairman of the Board of WHX, sent a letter on
March 27, the day before Good Friday and Easter Weekend, to the Chairman of DCA
to propose a merger. The March 27 Letter concludes:
If we do not hear from you by the close of business on Friday,
March 28, we are authorized to present this proposal directly to your
stockholders, through a proxy solicitation at the upcoming annual meeting and
through a cash tender offer.
61. Referring to the March 27 Letter, the Offer to Purchase
incorrectly states that WHX "has not received a response to this letter and has
decided to commence this Offer and to undertake the proxy solicitation . . . ."
62. Also referring to the March 27 Letter, the Proxy
Statement similarly misstates that "WHX did not receive a response to this
letter, and, thereafter commenced the tender offer." (emphasis added).
63. Despite the approaching holiday weekend, DCA responded to
this merger proposal with a letter sent via Facsimile to WHX on the very same
day it was received. The President of DCA replied to LaBow's March 27 Letter as
follows:
I acknowledge receipt of your letter dated and received by fax
today. Unfortunately, our Board of Directors held its regular monthly meeting
yesterday. Several of our directors are now traveling for the Easter weekend and
our offices are closed tomorrow for Good Friday. I will be in a position to
inform all of the directors next week of your correspondence and I will
communicate further with you after discussing the matter with them.
64. WHX intentionally omitted to inform DCA shareholders that
DCA promptly responded to LaBow's March 27 Letter in the hopes of creating the
false impression that DCA would not properly consider LaBow's peremptory merger
proposal.
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THE DCA BOARD OF DIRECTORS REJECTS
THE WHX OFFER AND DETERMINES TO
EXPLORE STRATEGIC ALTERNATIVES
65. Earlier today, DCA issued a press release disclosing,
among other things, that its board of directors had voted unanimously to
recommend that DCA shareholders reject WHX's unsolicited offer and had concluded
that the offer was inadequate, not in the best interests of DCA and its
shareholders and did not adequately reflect the value or prospects of DCA. The
press release also disclosed that the DCA board had determined:
o to explore alternative transactions to maximize
shareholder value;
o to postpone the 1997 annual meeting shareholders
until August 1, 1997;
o to increase the size of the board of directors to
nine members; and
o to adopt certain amendments to DCA's by-laws.
66. DCA has also filed today and will be mailing to DCA
shareholders a Solicitation/Recommendation Statement on Schedule 14D-9 setting
forth DCA's recommendation with respect to the WHX Offer and other information
relating thereto.
IRREPARABLE INJURY
67. Defendants' unlawful conduct has caused and unless
enjoined will continue to cause irreparable harm to DCA, as well as to its
public shareholders in that, among other things:
(a) DCA's public shareholders have been and will
continue to be denied material information to which they are lawfully entitled
and which is essential to informed decision making with respect to whether to
hold, tender or sell in the market, and how to vote their DCA shares; and
(b) the market in DCA common stock is being
disrupted and artificially manipulated so that trading is taking place based on
materially false and misleading information which Defendants have intentionally
injected into the marketplace.
AS AND FOR A FIRST CLAIM FOR RELIEF
[For Violations of Section 14(d) and (e) of the Exchange Act
and the SEC Rules and Regulations Promulgated Thereunder]
68. DCA realleges the allegations in the preceding paragraphs
of the Complaint as if fully set forth herein.
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69. Section 14(d) of the Exchange Act, 15 U.S.C. ss. 78n(d),
makes a tender offer such as Defendants' unlawful unless it is accompanied by a
full disclosure of the information specified in Section 13(d) of the Exchange
Act and such other information as the SEC may prescribe as necessary or
appropriate in the public interest for the protection of investors. In addition,
the tender offeror must disclose such additional material information, if any,
as may be necessary to make the required statements, in light of the
circumstances under which they are made, not materially misleading.
70. Section 14(e) of the Exchange Act, 15 U.S.C. ss. 78n(e),
makes it unlawful for any person to make any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
made, in the light of the circumstances under which they are made, not
misleading, or to engage in any fraudulent, deceptive, or manipulative acts or
practices, in connection with any tender, or any solicitation of security
holders in opposition to or in favor of any such offer, request, or invitation.
71. Sections 14(d) and (e) of the Exchange Act and the SEC
regulations thereunder are intended to insure that shareholders confronted with
a tender offer are provided with all the information about the offeror and the
offer necessary for them to make an informed investment decision about whether
to tender their shares to the offeror, sell their shares in the market or hold
their shares.
72. As set forth above, WHX's Offer to Purchase contains
numerous knowingly untrue statements of material fact and omits to state
material facts necessary to render such statements, in light of the
circumstances under which they were made, not misleading.
73. Defendants' unlawful conduct constitutes violations of
Section 14(d) and (e) of the Exchange Act and the SEC's rules and regulations
promulgated thereunder.
74. DCA and all DCA shareholders have no adequate remedy at
law.
AS AND FOR A SECOND CLAIM FOR RELIEF
[For Violations of Section 14(a) of the
Exchange Act and Rule 14a-9 Promulgated Thereunder]
75. DCA realleges the preceding paragraphs of the Complaint
as if fully set forth herein.
76. Section 14(a) of the Exchange Act and Rule 14a-9 are
intended to ensure that the proxy solicitation process is
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truthful and to enable shareholders to evaluate fully the information provided
in proxy materials. SEC Rule 14a-9 provides that:
No solicitation subject to this regulation shall be made by
means of any proxy statement . . . or other communication, written or oral,
containing any statement which at the time and in the light of the circumstances
under which it is made, is false or misleading with respect to any material
fact, or which omits to state any material fact necessary in order to make the
statements therein not false or misleading . . . .
17 C.F.R. ss. 240.14a-9.
77. WHX's Offer to Purchase, preliminary proxy statement and
other publicly disseminated press releases and other information referred to
above constitute solicitation materials pursuant to Section 14(a) of the
Exchange Act.
78. The knowingly false and misleading material
misrepresentations and omissions outlined above constitute violations of SEC
Rule 14a-9 promulgated under Section 14(a) of the Exchange Act.
79. DCA and all DCA shareholders have no adequate remedy at
law.
AS AND FOR A THIRD CLAIM FOR RELIEF
[For violations of Section 14(a) of the Exchange Act and
Rule 14a-11 Promulgated Thereunder]
80. DCA realleges the preceding paragraphs of the Complaint
as if fully set forth herein.
81. Defendants' April 7, 1997 letter to DCA shareholders
filed with the SEC as "solicitation material" pursuant to SEC Rule 14(a)-11. SEC
Rule 14(a)-11(b)(2) requires that the "identity of the participants in the
solicitation (as defined in Instruction 3 of Item 4 of Schedule 14A) and a
description of their interests, direct or indirect, by security holdings or
otherwise, are set forth in each communication published, sent or given to
security-holders in connection with the solicitation."
82. In violation of SEC Rule 14a-11, WHX failed to disclose
any such mandated information.
83. DCA and all DCA shareholders have no adequate remedy at
law.
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AS AND FOR A FOURTH CLAIM FOR RELIEF [For
Violations of Section 13(d) of the Exchange Act
and the Rules and Regulations Promulgated Thereunder]
84. DCA realleges the preceding paragraphs of the Complaint
as if fully set forth herein.
85. Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder provide that any person who acquires,
directly or indirectly, the beneficial ownership of more than 5% of any class of
equity security of an issuer registered under Section 12 of the Exchange Act,
shall, within 10 days after such acquisition, send to the company at its
principal office and file with the SEC and any exchange where the security is
traded, a Schedule 13D setting forth, among other things, the background and
identity of all persons by whom or on whose behalf the acquisition is being
made, the purpose or purposes of their acquisition of the issuer's stock, their
plans with respect to the issuer, and all contracts, arrangements,
understandings or relationships with respect to the securities of the issuer.
86. Section 13(d)(3) requires that any person who is the
beneficial owner of more than five percent of a class of a company's stock file
a statement with the SEC which discloses, among other things, whether the filer
has any plans or proposals to sell the company's assets or merge it with any
other persons or make any other major change in its business or corporate
structure. The instructions to Schedule 13D specifically include disclosure of
any plan or proposal to change the size or composition of the board of directors
or to effectuate a sale of the company's stock.
87. The purpose of Section 13(d) and the applicable
regulations is to permit issuers, their stockholders and the investing public
generally to (i) be aware of accumulations of blocks of stock in excess of five
percent of the outstanding shares of any equity security, (ii) ascertain the
background of, and other pertinent information relating to, the holders of such
blocks and (iii) learn the plans and intentions of the holders of such blocks
with respect to the particular issuer in question, all with a view toward
enabling shareholders and the public to make informed investment decisions based
upon full disclosure of all relevant and material information.
88. Section 13(d)(3) of the Exchange Act provides that two or
more persons who act as a group for the purpose of acquiring, holding or
disposing of the registered equity securities of an issuer are deemed a "person"
who must file a Schedule 13D after acquiring beneficial ownership of more than
five percent of those securities. Rule 13d-5 promulgated thereunder, 17 C.F.R.
ss. 240.13d-5, provides that "[w]hen two or more persons agree to act together
for the purpose of acquiring,
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holding, voting or disposing of equity securities of an issuer, the group formed
thereby shall be deemed to have acquired beneficial ownership, for purposes of
Sections 13(d) and 13(g) of the Act, as of the date of such agreement, of all
equity securities of that issuer beneficially owned by any such persons."
89. WHX and Lichtenstein have agreed to act in concert, as a
group, for the purpose of holding, voting and/or disposing of equity securities
of DCA in furtherance of the WHX Offer, proxy solicitation and merger proposal.
Although they have agreed to act and have acted in concert as a group and
together beneficially own more than five percent of the outstanding common
shares of DCA, WHX has not only knowingly and intentionally failed to disclose
the existence of this group as required by the law, but has expressly denied
such existence in the Offer to Purchase and in the preliminary proxy statement.
90. According to the instructions which accompany Schedule
13D, if the statement is filed by a group, the requisite information called for
by the Schedule must be given with respect to each member of the group.
91. Although WHX and Lichtenstein have agreed to act, have
acted, and are acting in concert as a group, and together beneficially own more
than five percent of the outstanding common shares of DCA, WHX has not filed a
Schedule 13D at all, as required by Section 13(d) of the Exchange Act.
92. DCA and all DCA shareholders have no adequate remedy at
law.
AS AND FOR A FIFTH CLAIM FOR RELIEF
[For Violation of Section 10(b) of the Exchange Act
and the Rules and Regulations Promulgated Thereunder]
93. DCA realleges the preceding paragraphs as if fully set
forth herein.
94. Section 10(b) of the Exchange Act makes it unlawful for
any person, to use or employ in connection with the purchase or sale of any
security any manipulative or deceptive device or contrivance in contravention of
such rules as the Commission may prescribe . . . .
95. Rule 10b-5 promulgated thereunder, 17 C.F.R. ss.
240.10b-5, makes it unlawful for any person, to engage in any act, practice, or
course of business which would operate as a fraud or deceit upon any person in
connection with the purchase or sale of any security.
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96. As alleged more fully above, Defendants have knowingly
engaged in conduct constituting manipulative, deceptive and fraudulent devices
or contrivances in violation of Section 10(b) of the Exchange Act and Rule 10b-5
promulgated thereunder. Such activities are ongoing, and will continue absent
the relief requested herein.
97. Because of the clandestine nature of Defendants' scheme,
DCA is in the best position to seek injunctive relief to protect the interests
of all of its shareholders.
98. DCA and all DCA shareholders have no adequate remedy at
law.
AS AND FOR A SIXTH CLAIM FOR RELIEF
[Declaratory Relief with Respect to Defendants' Demand to
Inspect Certain DCA Corporate Records]
99. DCA realleges the preceding paragraphs as if fully set
forth herein.
100. As part of their continuous plan and scheme to acquire
DCA at an inadequate price, Defendants, by letter dated April 3, 1997 directed
to DCA's Greenwich headquarters, have purported to demand certain information
from DCA regarding DCA's shareholders and certain beneficial ownership records
for the stated purpose of communicating with DCA's shareholders regarding
matters to be voted upon at DCA's upcoming annual meeting of shareholders.
101. DCA has provided WHX with certain information in response
to its request. WHX has taken the position that it is entitled to certain
additional information, including a list of certain non-objecting beneficial
owners of DCA common stock and other information that does not appear in WHX's
demand to inspect certain DCA corporate records. DCA has communicated to WHX
that it disagrees with this position, and has denied WHX's request to obtain
access to this additional information.
102. Accordingly, DCA seeks a declaration, pursuant to 28
U.S.C. ss. 2201, that it has satisfied its obligations in connection with its
production of information in response to SB's Demand.
WHEREFORE, Plaintiff demands judgment:
(i) temporarily, preliminarily and permanently enjoining
Defendants, their respective officers, agents, servants, employees, attorneys,
affiliates and partners and all other persons acting in concert with them or on
their behalf, directly and indirectly, from:
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(a) acquiring or attempting to acquire any shares of DCA
stock;
(b) making or continuing or attempting to make any tender
offer, request or invitation for tenders of any shares of DCA stock, including
pursuant to the purported tender offer commenced by WHX on March 31, 1997;
(c) taking any steps in furtherance of, or to assist or
facilitate the completion of, the tender offer for DCA by WHX or any affiliate;
(d) soliciting from any DCA shareholder any proxy, consent or
authorization to vote any shares of DCA stock at the 1997 Annual Meeting;
(e) orchestrating or financing any solicitation or arranging
for the solicitation or revocation of proxies, consents or authorizations with
respect to the shares of DCA's stock;
(f) making any materially false or misleading statement in
any solicitation pertaining to DCA shares; or
(g) otherwise voting, using or attempting to use any shares
of DCA stock as a means of controlling or affecting the business, management or
operations of DCA or seeking to effect or cause a sale of DCA or some or all of
its assets;
unless and until WHX complies, in full, with the federal securities
laws; and unless and until such time in the future as the Court may determine
that the effects of WHX's unlawful conduct have dissipated, including by
requiring WHX to terminate its current offer and recommence an offer for DCA
shares on such lawful terms as WHX deems advisable;
(ii) declaring the WHX Offer to be unlawful and in violation
of the federal securities laws;
(iii) declaring WHX's proxy statement and other solicitation
materials to be in violation of Section 14(a) of the Exchange Act and Rule 14a-9
promulgated thereunder;
(iv) declaring that WHX has violated Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder;
(v) declaring WHX to be part of a group under Section 13(d)
of the Exchange Act;
(vi) requiring WHX to comply with Section 13(d) and the rules
and regulations promulgated thereunder;
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(vii) declaring that DCA has satisfied its obligations under
New York law in connection with its production of information in response to
SB's Demand;
(viii) enjoining WHX from asserting any claims arising out of
the transactions or occurrences that are at issue in this action in any other
forum; and
(ix) granting such other and further relief as this Court may
deem just and proper, including costs, disbursements and reasonable attorneys'
fees.
PLAINTIFF, DYNAMICS CORPORATION
OF AMERICA
By /s/ Peter M. Holland
------------------------------------
Thomas J. Groark, Jr. (#ct04245)
James Sicilian (#ct05608)
Peter M. Holland (#ct14887)
Day, Berry & Howard
City Place I
Hartford, Connecticut 06103-3499
(860) 275-0100
OF COUNSEL:
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
CERTIFICATION
THIS IS TO CERTIFY that a copy of the foregoing was faxed and
mailed this date, postage prepaid, to:
Ilan K. Reich, Esq.
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
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Attorneys for Defendants
WHX Corporation and SB Acquisition Corp.
/s/ Peter M. Holland
-------------------------
Peter M. Holland
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