<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 7)
----------------
MOORCO INTERNATIONAL INC.
(NAME OF SUBJECT COMPANY)
MII ACQUISITION CORP.
FMC CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $.01 PER SHARE 61559L100
(Including the Associated Preferred (CUSIP Number of Class of Securities)
Stock Purchase Rights)
(Title of Class of Securities)
ROBERT L. DAY, ESQ.
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
TELEPHONE: (312) 861-6000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
Copy to:
GLEN E. HESS, P.C.
KIRKLAND & ELLIS
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4675
TELEPHONE: (212) 446-4800
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CALCULATION OF FILING FEE
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<TABLE>
<CAPTION>
TRANSACTION AMOUNT OF
VALUATION* FILING FEE**
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<S> <C>
$319,980,416 $63,996.08
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</TABLE>
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*Based on the offer to purchase all of the outstanding shares of Common Stock,
par value $0.01 per share (the "Shares"), of the Subject Company and the
associated Preferred Stock Purchase Rights at $28.00 cash per share and the
number of Shares and options outstanding as disclosed by the Subject Company
to the Bidder.
**1/50 of 1% of Transaction Valuation.
[X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: __________$45,773.6__________ 9
Form or Registration No.: _______Schedule 14D-_______ 1
Filing Party: ________FMC Corporation; MII Acquisition
Corp.________________________________________________
Date Filed: _______________May 5, 199________________ 5
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<PAGE>
This Amendment No. 7 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on May 5, 1995 (as heretofore amended, the "Schedule 14D-
1") relating to the offer by MII Acquisition Corp., a Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of FMC Corporation, a Delaware
corporation ("FMC"), to purchase all of the outstanding shares of Common Stock,
$.01 par value per share (the "Shares"), of Moorco International Inc., a
Delaware corporation (the "Company"), and the associated Preferred Stock
Purchase Rights (the "Rights" and, unless the context otherwise requires,
deemed to be included in all references to the "Shares") issued pursuant to the
Rights Agreement, dated as of November 8, 1994, between the Company and The
Bank of New York, a New York banking corporation, as Rights Agent (the "Rights
Agreement"), at an increased purchase price of $28.00 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 May 5, 1995 (the "Offer to
Purchase"), as amended and supplemented by the Supplement thereto dated June
13, 1995 (the "Supplement") and in the related Letters of Transmittal (which,
together with the Offer to Purchase and Supplement thereto, collectively
constitute the "Offer"). Unless otherwise indicated herein, each capitalized
term used but not defined herein shall have the meaning assigned to such term
in the Schedule 14D-1.
ITEM 1. SECURITY AND THE SUBJECT COMPANY
The information set forth in Item 1(b) is hereby amended and supplemented by
the following:
The information set forth in the Introduction and Section 1 ("Amended
Terms of the Offer") of the Supplement is incorporated herein by reference.
The information set forth in Item 1(c) is hereby amended and supplemented by
the following:
The information set forth in Section 3 ("Price Range of the Shares;
Dividends") of the Supplement is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY
The information set forth in Item 3(b) is hereby amended and supplemented by
the following:
The information set forth in the Introduction, Section 4 ("Certain
Information Concerning the Company"), Section 5 ("Background of the Offer;
Contacts with the Company Since May 5, 1995"), Section 6 ("Plans for the
Company"), Section 7 ("Merger Agreement") and Section 8 ("Certain
Conditions of the Offer") of the Supplement is incorporated herein by
reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The information set forth in Items 4(a) and (b) is hereby amended and
supplemented by the following:
The information set forth in Section 9 ("Source and Amount of Funds") of
the Supplement is incorporated herein by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
The information set forth in Items 5(a) and (c)-(g) is hereby amended and
supplemented by the following:
The information set forth in the Introduction, Section 4 ("Certain
Information Concerning the Company"), Section 6 ("Plans for the Company")
and Section 7 ("Merger Agreement") of the Supplement is incorporated herein
by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES
The information set forth in Item 7 is hereby amended and supplemented by the
following:
The information set forth in the Introduction, Section 5 ("Background of
the Offer; Contacts with the Company Since May 5, 1995") and Section 7
("Merger Agreement") of the Supplement is incorporated herein by reference.
VII-1
<PAGE>
ITEM 10. ADDITIONAL INFORMATION
The information set forth in Items 10(b), (c), and (e) is hereby amended and
supplemented by the following:
The information set forth in the Introduction and Section 10 ("Certain
Legal Matters") of the Supplement is incorporated herein by reference.
The information set forth in Item 10(f) is hereby amended and supplemented by
the following:
The information set forth in the Supplement, a copy of which is attached
as Exhibit 11(a)(13) hereto, and the revised Letter of Transmittal, a copy
of which is attached as Exhibit 11(a)(14), is incorporated herein by
reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
(a)(13) Supplement to the Offer to Purchase dated June 13, 1995.
(a)(14) Revised Letter of Transmittal.
(a)(15) Revised Notice of Guaranteed Delivery.
(a)(16) Revised Letter from the Dealer Manager to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(17) Revised Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(18) Summary Advertisement as published on June 13, 1995.
(b)(2) Amendment to 5-Year Credit Agreement.
(b)(3) Amendment to 364-Day Credit Agreement.
VII-2
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this Statement is true, complete and correct.
FMC Corporation
/s/ Robert L. Day
By: _________________________________
Name: Robert L. Day, Esq.
Title: Secretary
MII Acquisition Corp.
/s/ Charlotte Mitchell Smith
By: _________________________________
Name: Charlotte Mitchell Smith,
Esq.
Title: Secretary
Date: June 13, 1995
VII-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION NO.
--------- ----------- ----
<C> <S> <C>
11(a)(13) Supplement to Offer to Purchase dated June 13, 1995...........
11(a)(14) Revised Letter of Transmittal.................................
11(a)(15) Revised Notice of Guaranteed Delivery.........................
11(a)(16) Revised Letter from the Dealer Manager to Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees................
11(a)(17) Revised Letter to clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees................
11(a)(18) Summary Advertisement as published on June 13, 1995...........
11(b)(2) Amendment to 5-Year Credit Agreement..........................
11(b)(3) Amendment to 364-Day Credit Agreement.........................
</TABLE>
<PAGE>
SUPPLEMENT TO OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MOORCO INTERNATIONAL INC.
AT
AN INCREASED CASH PRICE OF
$28.00 NET PER SHARE
BY
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 26, 1995, UNLESS THE
OFFER IS EXTENDED
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT
NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE (THE "SHARES"), OF
MOORCO INTERNATIONAL INC. (THE "COMPANY") WHICH, WHEN AGGREGATED WITH THE 100
SHARES CURRENTLY OWNED BY FMC CORPORATION, REPRESENT AT LEAST A MAJORITY OF THE
TOTAL NUMBER OF OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF
PURCHASE (THE "MINIMUM CONDITION"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS
AND CONDITIONS CONTAINED HEREIN. SEE "INTRODUCTION" AND SECTION 8 OF THIS
SUPPLEMENT.
----------------
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT THE
OFFER AND THE MERGER DESCRIBED HEREIN ARE FAIR TO, AND IN THE BEST INTERESTS
OF, THE STOCKHOLDERS OF THE COMPANY, HAS APPROVED THE OFFER AND THE MERGER AND
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
----------------
SHARES PREVIOUSLY TENDERED AND NOT PROPERLY WITHDRAWN HAVE BEEN VALIDLY
TENDERED FOR PURPOSES OF THE OFFER.
----------------
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
June 13, 1995
<PAGE>
IMPORTANT
On June 11, 1995, the Purchaser, FMC and the Company entered into an
Agreement and Plan of Merger which is summarized in Section 7 of this
Supplement and which contains the conditions described in Section 8 of this
Supplement.
Except as otherwise set forth in this Supplement, the Purchaser's Offer
continues to be governed by the terms and conditions set forth in its Offer to
Purchase dated May 5, 1995 (the "Offer to Purchase") and the original GREEN
Letter of Transmittal, and the information contained therein continues to be
important to each stockholder's decision with respect to the Offer.
Accordingly, this Supplement should be read carefully in conjunction with such
documents, which have been previously mailed to stockholders. Additional copies
of these documents may be obtained in the manner set forth below.
Any stockholder desiring to tender all or any portion of his or her Shares,
and the associated Preferred Stock Purchase Rights (the "Rights" and, unless
the context otherwise requires, deemed to be included in all references to the
"Shares"), should either (i) complete and sign the Letter of Transmittal (or a
facsimile thereof) in accordance with the instructions in the Letter of
Transmittal and mail or deliver it together with the certificate(s)
representing tendered Shares and any other required documents, to The Chase
Manhattan Bank, N.A. (the "Depositary") or tender such Shares pursuant to the
procedures for book-entry transfer set forth in Section 3 of the Offer to
Purchase or (ii) request his or her broker, dealer, commercial bank, trust
company or other nominee to effect the transaction for the stockholder. A
stockholder whose Shares are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if the stockholder
desires to tender such Shares. A stockholder who desires to tender his or her
Shares, and whose certificates representing such Shares are not immediately
available or who cannot comply with the procedures for book-entry transfer 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 may be directed to D.F. King & Co.,
Inc. (the "Information Agent") or Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Dealer Manager") at their respective addresses and telephone
numbers set forth on the back cover of this Supplement. Additional copies of
this Supplement, the Offer to Purchase, the revised BLUE Letter of Transmittal,
the revised YELLOW Notice of Guaranteed Delivery and other related materials
may be obtained from the Information Agent, the Dealer Manager, the Depositary
or from brokers, dealers, commercial banks and trust companies. A stockholder
may also contact brokers, dealers, commercial banks or trust companies for
assistance concerning the Offer.
----------------
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
INTRODUCTION............................................................... 1
THE TENDER OFFER........................................................... 4
1.Amended Terms of the Offer............................................. 4
2.Procedures for Accepting the Offer and Tendering Shares................ 4
3.Price Range of the Shares; Dividends................................... 5
4.Certain Information Concerning the Company............................. 5
5.Background of the Offer; Contacts with the Company Since May 5, 1995... 7
6.Plans for the Company.................................................. 7
7.Merger Agreement....................................................... 8
8.Certain Conditions of the Offer........................................ 16
9.Source and Amount of Funds............................................. 18
10.Certain Legal Matters................................................. 18
11.Miscellaneous......................................................... 19
</TABLE>
<PAGE>
To: All Holders of Shares of Common Stock ofMOORCO INTERNATIONAL INC.
INTRODUCTION
The following information amends and supplements the Offer to Purchase dated
May 5, 1995 (the "Offer to Purchase") of MII Acquisition Corp. (the
"Purchaser"), a Delaware corporation and a wholly owned subsidiary of FMC
Corporation, a Delaware corporation ("FMC"). Pursuant to this Supplement to the
Offer to Purchase (the "Supplement"), the Purchaser is now offering to purchase
all outstanding shares of common stock, par value $.0l per share (the
"Shares"), of Moorco International Inc., a Delaware corporation (the
"Company"), and the associated Preferred Stock Purchase Rights (the "Rights"
and, unless the context otherwise requires, deemed to be included in all
references to the "Shares") issued pursuant to the Rights Agreement (the
"Rights Agreement"), dated as of November 8, 1994, between the Company and The
Bank of New York, a New York banking corporation, as Rights Agent, at a
purchase price of $28.00 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, as amended and supplemented by this Supplement, and in the related
Letters of Transmittal (which together constitute the "Offer"). The Company has
agreed in the Merger Agreement (as hereinafter defined), subject to the terms
of the Merger Agreement, to effect a redemption of the Rights for $.01 per
Right immediately prior to the Purchaser's acceptance for payment of Shares
pursuant to the Offer, and to cause the redemption price in respect of the
Rights attached to the Shares purchased pursuant to the Offer to be paid to and
retained by the Purchaser.
Except as otherwise set forth in this Supplement, the terms and conditions
previously set forth in the Offer to Purchase remain applicable in all respects
to the Offer, and the Supplement should be read in conjunction with the Offer
to Purchase. Unless the context requires otherwise, capitalized terms used
herein but not otherwise defined herein have the meaning given to such terms in
the Offer to Purchase.
The Purchaser, FMC and the Company have entered into an Agreement and Plan of
Merger, dated as of June 11, 1995 (the "Merger Agreement"), which provides for,
among other things, (i) an increase in the price per Share to be paid pursuant
to the Offer from $20.00 per Share to $28.00 per Share, net to the seller in
cash without interest thereon, (ii) the elimination of certain conditions to
the Offer, (iii) the amendment and restatement of the other conditions to the
Offer as set forth in their entirety in Section 8 of this Supplement, (iv) the
extension of the Offer to 12:00 Midnight, New York City time, on Monday, June
26, 1995 or such later date as is required pursuant to the Merger Agreement and
(v) the merger of the Purchaser or another direct or indirect wholly owned
subsidiary of FMC with the Company (the "Merger") following the consummation of
the Offer. In the Merger, each Share not owned by the Purchaser, FMC or the
Company (or any of their respective wholly owned subsidiaries), and other than
Dissenting Shares (as such term is defined in the Merger Agreement), shall be
cancelled, extinguished and converted into the right to receive $28.00 net per
Share in cash without interest thereon. See Section 7 of this Supplement.
THE COMPANY HAS REPRESENTED THAT THE BOARD OF DIRECTORS OF THE COMPANY HAS
UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, HAS APPROVED THE OFFER AND
RECOMMENDS THAT THE STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
Salomon Brothers Inc ("Salomon") has delivered to the Board of Directors of
the Company its written opinion, dated June 11, 1995, that, based upon and
subject to the information contained in such opinion, as of such date, the
consideration to be received by holders of Shares, other than FMC, in the Offer
and the Merger is fair to such holders from a financial point of view.
In the Merger Agreement, the Company represents and warrants to FMC and the
Purchaser that the Company has taken all necessary action so that neither the
execution nor the delivery of the Merger Agreement nor the commencement of the
amended Offer will result in a "Distribution Date" (as such term
<PAGE>
is defined in the Rights Agreement). The Company also represents and warrants
in the Merger Agreement that the Board of Directors of the Company has taken
the appropriate action such that Section 203 of the Delaware Law (the "Business
Combination Law") will not apply to any of the transactions contemplated by the
Merger Agreement, including the Offer and the Merger.
THEREFORE, THE OFFER IS NO LONGER SUBJECT TO THE RIGHTS CONDITION OR THE
BUSINESS COMBINATION LAW CONDITION INCLUDED IN THE OFFER TO PURCHASE. THE OFFER
IS NOW CONDITIONED UPON, AMONG OTHER THINGS, THE MINIMUM CONDITION OF THERE
BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF
THE OFFER THAT NUMBER OF SHARES WHICH, WHEN AGGREGATED WITH THE 100 SHARES
CURRENTLY OWNED BY FMC, REPRESENT AT LEAST A MAJORITY OF THE TOTAL NUMBER OF
OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE. THE OFFER
REMAINS SUBJECT TO CERTAIN OTHER TERMS AND CONDITIONS CONTAINED HEREIN IN
ADDITION TO THE MINIMUM CONDITION. SEE SECTION 8 OF THIS SUPPLEMENT.
Procedures for tendering shares are set forth in Section 2 of this Supplement
and Section 3 of the Offer to Purchase. Tendering stockholders will not be
obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the revised BLUE Letter of Transmittal, stock transfer taxes
on the purchase of Shares pursuant to the Offer. However, any tendering
stockholder or other payee who fails to complete and sign the Substitute Form
W-9 that is included in the revised BLUE Letter of Transmittal may be subject
to a required backup federal income tax withholding of 31% of the gross
proceeds payable to such stockholder or other payee pursuant to the Offer. See
Section 3 of the Offer to Purchase. The Purchaser will pay all charges and
expenses of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch"), as Dealer Manager (in such capacity, the "Dealer Manager"), The Chase
Manhattan Bank, N.A., as Depositary (the "Depositary"), and D.F. King & Co.,
Inc. as Information Agent (the "Information Agent"), incurred in connection
with the Offer. See Section 16 of the Offer to Purchase.
STOCKHOLDERS WHO HAVE PREVIOUSLY VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN
THEIR SHARES PURSUANT TO THE OFFER ARE NOT REQUIRED TO TAKE ANY FURTHER ACTION,
EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE OF SECTION 3 OF
THE OFFER TO PURCHASE IF SUCH PROCEDURE WAS UTILIZED. If Shares are accepted
for payment and paid for by the Purchaser pursuant to the Offer, such
stockholders will receive, subject to the conditions of the Offer, the
increased tender price of $28.00 per Share. However, such stockholders will not
receive the $.01 per Right redemption price (which will be payable to the
Purchaser) in respect of Rights attached to such Shares. See Section 4 of the
Offer to Purchase for the procedures to properly withdraw Shares tendered
pursuant to the Offer.
Based on the representations and warranties of the Company contained in the
Merger Agreement, as of May 31, 1995, there were 11,146,022 Shares outstanding
and options covering a total of 281,950 Shares were reserved for issuance under
the Company's two stock option plans. FMC currently beneficially owns an
aggregate of 100 Shares, representing less than .01% of the Shares outstanding
on May 31, 1995. Based on this information, the Minimum Condition will be
satisfied if at least 5,713,887 Shares are validly tendered and not properly
withdrawn on or prior to the Expiration Date. If the Minimum Condition is
satisfied, the Purchaser will be able to approve the Merger without the
affirmative vote of the holders of any other Shares.
This Offer to Purchase does not constitute a solicitation of a proxy, consent
or authorization for or with respect to the annual meeting or any special
meeting of the Company's stockholders or any action in lieu thereof. Any such
solicitation which FMC or the Purchaser may make will be made only pursuant to
separate proxy solicitation materials complying with all applicable
requirements of Section 14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder.
The Offer is conditioned upon the fulfillment or waiver of certain conditions
described herein. See Section 8 of this Supplement. The Offer will expire at
12:00 midnight, New York City time, on Monday, June 26, 1995, unless extended.
2
<PAGE>
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ IN CONJUNCTION WITH THIS SUPPLEMENT BEFORE ANY
DECISION IS MADE WITH RESPECT TO THE OFFER.
3
<PAGE>
THE TENDER OFFER
1. AMENDED TERMS OF THE OFFER
Sections 1 and 13 of the Offer to Purchase are amended and supplemented by
this Section 1 of this Supplement.
In connection with the Merger Agreement, the price per Share to be paid
pursuant to the Offer has been increased from $20.00 per Share to $28.00 per
Share, net to the seller in cash without interest thereon. Upon the terms and
subject to the conditions of the Offer (including, if the Offer is further
extended or amended pursuant to the Merger Agreement, the terms and conditions
of any extension or amendment), the Purchaser will accept for payment and pay
the increased price for all of the Shares validly tendered prior to the
Expiration Date (as herein defined) and not withdrawn in accordance with
Section 4 of the Offer to Purchase (including Shares tendered prior to the date
of this Supplement). The term "Expiration Date" means 12:00 Midnight, New York
City time, on Monday, June 26, 1995 unless and until the Purchaser, subject to
the terms of the Merger Agreement, shall have extended the period of time
during which the Offer is open, in which event the term "Expiration Date" shall
mean the latest time and date at which the Offer, as so extended by the
Purchaser, shall expire. See Section 7 of this Supplement for a description of
the provisions of the Merger Agreement regarding extensions of the Offer by the
Purchaser.
By tendering Shares pursuant to the Offer, a tendering stockholder confirms
such stockholder's agreement that the amount paid by the Company in redemption
of the Rights attached to Shares of such stockholder acquired pursuant to the
Offer will be paid to and retained by the Purchaser. Amounts paid in redemption
of Rights attached to other Shares are not affected by the foregoing and will
be paid to holders of Rights in accordance with the terms of the Rights
Agreement.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer, as
amended pursuant to the Merger Agreement, to the stockholders. This Supplement,
the revised BLUE Letter of Transmittal and other relevant materials will be
mailed by the Company to record holders of Shares whose names appear on the
Company's stockholder list and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the stockholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, SATISFACTION OF THE
MINIMUM CONDITION AS SET FORTH ABOVE IN THE INTRODUCTION AND IN SECTION 8 OF
THIS SUPPLEMENT. THE PURCHASER RESERVES THE RIGHT (BUT SHALL NOT BE OBLIGATED)
TO WAIVE ANY OR ALL OF SUCH CONDITIONS, EXCEPT THAT THE PURCHASER MAY NOT WAIVE
THE MINIMUM CONDITION. AS DESCRIBED IN SECTION 14 OF THE OFFER TO PURCHASE, ANY
SUCH WAIVER MAY REQUIRE A PUBLIC ANNOUNCEMENT OR EXTENSION OF THE OFFER UNDER
THE APPLICABLE RULES UNDER THE EXCHANGE ACT REFERRED TO IN THE OFFER TO
PURCHASE.
2. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES
Section 3 of the Offer to Purchase is amended and supplemented by this
Section 2 of this Supplement.
Tendering stockholders should use the revised BLUE Letter of Transmittal and
the revised YELLOW Notice of Guaranteed Delivery included with this Supplement.
However, to the extent either of the revised BLUE Letter of Transmittal and the
revised YELLOW Notice of Guaranteed Delivery is not available, tendering
shareholders may continue to use the GREEN Letter of Transmittal and the GOLD
Notice of Guaranteed Delivery that were provided with the Offer to Purchase.
Although such GREEN Letter of Transmittal refers only to the Offer to Purchase
and indicates that the Offer will expire at 12:00 midnight, New York City time,
on Friday, June 2, 1995, stockholders using such document to tender their
shares will nevertheless receive $28.00 net per Share in cash for each Share
validly tendered and not properly withdrawn and accepted for payment pursuant
to the Offer, subject to the conditions of the Offer, and will be able to
tender their shares pursuant to the Offer until 12:00 midnight, New York City
time, on Monday, June 26, 1995 (or such later date to which the Offer may be
extended).
Stockholders who have previously validly tendered shares pursuant to the
Offer using the GREEN Letter of Transmittal or the YELLOW Notice of Guaranteed
Delivery and who have not properly withdrawn such
4
<PAGE>
Shares have validly tendered such Shares for the purposes of the Offer, as
amended, and need not take any further action, except as may be required by the
Guaranteed Delivery procedure described in Section 3 of the Offer to Purchase
if such procedure was utilized. However, such stockholders will not receive the
$.01 per Right redemption price (which will be payable to the Purchaser) in
respect of Rights attached to such Shares.
3. PRICE RANGE OF THE SHARES; DIVIDENDS
Section 6 of the Offer to Purchase is amended and supplemented by this
Section 3 of this Supplement.
The high and low sales prices per Share on the NYSE reported by the Dow Jones
News Service during the fourth quarter of the fiscal year ending May 31, 1995
were $23.50 and $13.13, respectively, and during the first quarter (through
June 9, 1995) of the fiscal year ending May 31, 1996 were $23.63 and $22.63,
respectively. On June 9, 1995, the last full trading day prior to the
announcement of the execution of the Merger Agreement, the closing sale price
per Share reported on the NYSE by the Dow Jones News Service was $23.50. On
June 12, 1995, the last full trading day prior to the mailing of this
Supplement, the closing sale price per Share reported on the NYSE by the Dow
Jones News Service was $27.88.
STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
4. CERTAIN INFORMATION CONCERNING THE COMPANY
Section 8 of the Offer to Purchase is amended and supplemented by this
Section 4 of this Supplement.
After entering into the Confidentiality Agreement (as defined and described
in Section 5 of this Supplement), the Company and Salomon provided certain non-
public business and financial information regarding the Company to FMC. This
information included estimates and projections of the company's future
operating performance and of certain balance sheet information (the
"Projections").
The following information has been excerpted or derived from the materials
provided to FMC. According to the Company, the Projections were prepared using
numerous assumptions, including assumptions with respect to an upturn in the
market, current and planned product and market development programs and the
impact of cost reduction and margin improvement programs. Some (but not all) of
these assumptions are set forth below. The Projections do not give effect to
the Offer or the Merger. NONE OF THE COMPANY, FMC, THE PURCHASER OR THEIR
RESPECTIVE ADVISORS ASSUME
ANY RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS
OF THE PROJECTIONS.
MOORCO INTERNATIONAL, INC.
SELECTED FINANCIAL PROJECTIONS
(IN THOUSANDS, EXCEPT OPERATING MARGIN AND PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MAY 31,
----------------------------------------------------------
PLAN
EST. ------------------------------------------------
1995(A) 1996 1997 1998 1999 2000
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA(b)
Sales................... $197,924 $214,195 $239,818 $259,119 $272,977 $286,766
Operating income........ 15,276 21,418 27,574 34,332 36,364 38,324
Operating margin........ 7.7% 10.0% 11.5% 13.2% 13.3% 13.4%
EBITDA.................. 23,534 28,584 34,915 41,607 43,692 45,694
Net income.............. 10,231 14,441 18,804 23,381 25,332 27,283
Earnings per share...... 0.89 1.29 1.68 2.09 2.27 2.44
Shares outstanding...... 11,529 11,177 11,177 11,177 11,177 11,177
BALANCE SHEET DATA
(At period end)
Working capital......... 60,331 59,430 74,296 96,092 118,863 143,604
Total assets............ 163,836 167,651 187,804 212,285 237,496 264,626
Total liabilities....... 61,227 53,099 56,907 60,466 62,804 65,110
Total stockholders'
equity................. 102,609 114,552 130,897 151,819 174,692 199,516
</TABLE>
5
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(a) Pursuant to the Merger Agreement, the Company disclosed that, based on a
preliminary closing (excluding expenses incurred in connection with the
sale of the Company), the Company's preliminary fourth quarter and 1995
fiscal year sales were $62,000,000 and $196,000,000, respectively, and
earnings per share were $0.56 and $0.95, respectively, and that bookings
for the fourth quarter were approximately $46,000,000.
(b) In connection with the delivery of the Projections, the Company indicated
that certain corporate office, insurance and audit expenses of
approximately $7,000,000 per year in the early years to approximately
$8,000,000 per year in the later years might be significantly reduced by a
prospective acquisition. The foregoing selected Financial Projections do
not incorporate any of these potential savings.
General Asumptions
. The five-year projections assume an upturn in the Company's markets
beginning in the first or second quarter of FY 1996, continuing for a two-
year period, and moderating during FY 1998. The sales forecast also includes
the impact of current and planned product and market development programs.
. Consolidated sales are assumed to grow at a rate of approximately 8% in FY
1996, 12% in FY 1997, 8% in FY 1998 and approximately 5% in FY 1999 and FY
2000.
. Operating margins (excluding corporate expenses) are assumed to improve to
12.2% in FY 1996 to 15.3% by FY 1998 and then remain constant for FY 1999
and FY 2000. The assumed margin is based on the assumed impact of the higher
sales volume and cost reduction and margin improvement programs.
. The Company's effective income tax rate is assumed to be 34% for FY 1996 and
FY 1997 and 35% for FY 1998 through FY 2000.
. The Company's cash is assumed to earn income at a 5% rate. The Projections
assume no material debt financing.
TO THE KNOWLEDGE OF FMC AND THE PURCHASER, THE COMPANY DOES NOT AS A MATTER
OF COURSE PUBLICLY DISCLOSE PROJECTIONS OR ESTIMATES AS TO FUTURE REVENUES,
EARNINGS, FINANCIAL CONDITION OR OPERATING PERFORMANCE. THE PROJECTIONS ARE
INCLUDED IN THIS SUPPLEMENT ONLY BECAUSE SUCH INFORMATION WAS FURNISHED TO FMC
AND THE PURCHASER BY THE COMPANY WITHOUT INDEPENDENT VERIFICATION. THE
PROJECTIONS WERE NOT PREPARED (NOR ARE THEY BEING FURNISHED) WITH A VIEW TO
COMPLIANCE WITH THE GUIDELINES ESTABLISHED BY THE SEC OR THE AMERICAN INSTITUTE
OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING PROJECTIONS AND FORECASTS.
THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS, ALL MADE BY COMPANY MANAGEMENT,
WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC, MARKET AND
FINANCIAL CONDITIONS AND OTHER MATTERS, ALL OF WHICH ARE DIFFICULT TO PREDICT
AND MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND NONE OF WHICH WERE
SUBJECT TO APPROVAL BY FMC OR THE PURCHASER. ACCORDINGLY, THERE CAN BE NO
ASSURANCE THAT THE ASSUMPTIONS MADE IN PREPARING THE PROJECTIONS WILL BE
ACCURATE, AND ACTUAL RESULTS MAY BE MATERIALLY GREATER OR LESS THAN THOSE
CONTAINED IN THE PROJECTIONS. THE INCLUSION OF THE PROJECTIONS HEREIN SHOULD
NOT BE REGARDED AS AN INDICATION THAT ANY OF THE COMPANY, FMC, THE PURCHASER OR
THEIR RESPECTIVE ADVISORS CONSIDERED OR CONSIDER THE PROJECTIONS TO BE
6
<PAGE>
MATERIAL OR A RELIABLE PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS SHOULD
NOT BE RELIED ON AS SUCH.
NEITHER THE COMPANY, FMC, THE PURCHASER NOR ANY OF THEIR ADVISORS HAS MADE,
OR MAKES, ANY REPRESENTATION TO ANY PERSON REGARDING THE INFORMATION CONTAINED
IN THE PROJECTIONS AND NONE OF THEM INTENDS TO UPDATE OR OTHERWISE REVISE THE
PROJECTIONS TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO
REFLECT THE OCCURRENCE OF FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR ALL OF
THE ASSUMPTIONS UNDERLYING THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
5. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY SINCE MAY 5, 1995
Section 10 of the Offer to Purchase is amended and supplemented by this
Section 5 of this Supplement.
On May 19, 1995, the Company responded to the initial offer by FMC and the
Purchaser, characterizing the offer as inadequate.
On May 23, 1995, a representative of the Company called a FMC representative
to report that the Company was willing to provide nonpublic information to FMC
pursuant to a confidentiality agreement without a standstill provision. On May
23, 1995, FMC entered into a Confidentiality Agreement with the Company,
pursuant to which it generally agreed to treat confidentially any information
(except certain already known or public information) that the Company or its
agents or advisors furnish to FMC or its representatives (the "Confidentiality
Agreement").
Subsequent to entering into the Confidentiality Agreement, the Company and
Salomon provided certain business and financial information to FMC and its
representatives, and representatives of FMC met with representatives of the
Company, conducted due diligence with respect to the Company and its facilities
and operations and reviewed various information concerning the Company supplied
to FMC.
On Friday, June 9, 1995, pursuant to procedures established by the Company
for receipt of proposals for the acquisition of the Company, FMC submitted its
proposal for the acquisition of the Company. Thereafter, until the afternoon on
Sunday, June 11, 1995, FMC and the Company and their respective representatives
negotiated and discussed the terms of FMC's proposal and the related Merger
Agreement. On Sunday evening, June 11, 1995, an agreement was reached between
the parties on all terms, including price, of the Merger Agreement, and the
Merger Agreement was executed.
On Monday morning, June 12, 1995, FMC and the Company issued a joint press
release announcing the execution by FMC, the Purchaser and the Company of the
Merger Agreement and the amendment of the Offer.
6. PLANS FOR THE COMPANY
Section 11 of the Offer to Purchase is amended and supplemented by this
Section 6 of this Supplement.
Pursuant to the Merger Agreement, FMC, the Purchaser and the Company have
agreed, among other things, that FMC shall be entitled to modify the
composition of the Board of Directors of the Company to include nominees of the
Purchaser following consummation of the Offer. See Section 7 of this
Supplement.
7
<PAGE>
7. MERGER AGREEMENT
The following is a summary of the Merger Agreement, a copy of which has been
filed as an exhibit to Amendment No. 6, filed by FMC with the Commission on
June 12 ,1995, to the Tender Offer Statement on Schedule 14D-1 of the Purchaser
and FMC, filed with the Commission on May 5, 1995. Such summary is qualified in
its entirety by reference to the Merger Agreement which is incorporated by
reference herein. Terms not defined herein have the meaning ascribed to them in
the Merger Agreement.
The Amended Offer. In the Merger Agreement, FMC and the Purchaser agree,
among other things, to amend the Offer (i) to reflect the increase in the
purchase price offered to $28.00 per Share in cash, (ii) to extend the Offer
until midnight, New York City time, on Monday, June 26, 1995, unless further
extended, and (iii) to modify the conditions of the Offer to conform to the
conditions to the Offer as set forth in Annex I to the Merger Agreement. The
obligation of FMC to accept for payment or pay for any Share tendered pursuant
to the Offer is subject only to the satisfaction of the conditions set forth in
Annex I to the Merger Agreement. Without the prior written consent of the
Company, the Purchaser may not (i) decrease the price per Share or change the
form of consideration payable, (ii) decrease the number of shares sought to be
purchased in the Offer, (iii) change the conditions set forth in Annex I to the
Merger Agreement, (iv) waive the Minimum Condition, (v) impose additional
conditions, or (vi) amend any other term of the Offer in any manner adverse to
the holders of the Shares. Subject to the terms of the Offer and the Merger
Agreement and the satisfaction of all the conditions of the Offer set forth in
Annex I to the Merger Agreement, as of any expiration date, FMC will accept for
payment and pay for all Shares validly tendered and not withdrawn pursuant to
the Offer as soon as practicable after such expiration date of the Offer. If
the conditions set forth in Annex I to the Merger Agreement are not satisfied
or, to the extent permitted by the Agreement, waived, FMC will extend the Offer
from time to time for the shortest time periods which it reasonably believes
are necessary until the consummation of the Offer. Each of FMC and the
Purchaser shall use its reasonable best efforts to avoid or cure the occurrence
of any event set forth in Annex I to the Merger Agreement.
The Company represents that the Company's Board of Directors, at a meeting
duly called and held, has (i) determined that the Offer and the Merger are fair
to and in the best interests of the Company and its stockholders, (ii) approved
the Offer and the Merger in accordance with the Business Combination Law and
(iii) resolved to recommend acceptance of the Offer and approval and adoption
of the Merger and the Merger Agreement by the Company's stockholders (if such
approval is required by law); provided, however, that such recommendation and
approval may be withdrawn, modified or amended to the extent that the Board of
Directors determines in good faith, upon advice from its outside counsel, that
its fiduciary duties would require it to do so. The Company further represents
that Salomon Brothers Inc delivered to the Board of Directors its written
opinion that the consideration to be received for the Shares pursuant to the
Offer and the Merger is fair to the Company's stockholders. The Company agrees
to furnish the Purchaser with such information and assistance as the Purchaser
or its agents or representatives may reasonably request in connection with
communicating the Offer to the record and beneficial holders of the Shares.
The Merger Agreement provides that FMC, upon the payment for Shares pursuant
to the Offer, and from time to time thereafter, is entitled to designate such
number of directors, rounded up to the next whole number, on the Board as is
equal to the product of the total number of directors on the Board (determined
after giving effect to the directors so elected) multiplied by the percentage
that the aggregate number of Shares beneficially owned by the Purchaser or its
affiliates bears to the total number of fully diluted Shares then outstanding.
The Company shall, upon the request of the Purchaser, promptly take all actions
necessary to cause FMC's designees to be so elected, including, if necessary,
seeking the resignations of one or more existing directors; provided, however,
that prior to the Effective Time (defined in Section 2.02 of the Merger
Agreement as "the time the Merger becomes effective in accordance with
applicable law"), the Board shall always have at least three members who are
neither officers, directors, stockholders or designees of the Purchaser or any
of its affiliates ("Purchaser Insiders"). If the number of directors who are
not Purchaser Insiders is reduced below three for any reason prior to the
Effective Time, the remaining directors who are
8
<PAGE>
not Purchaser Insiders (or if there is only one director who is not a Purchaser
Insider, the remaining director who is not a Purchaser Insider) are entitled to
designate a person (or persons) to fill such vacancy (or vacancies) who is not
an officer, director, stockholder or designee of the Purchaser or any of its
affiliates and who will be a director not deemed to be a Purchaser Insider for
all purposes of the Merger Agreement. Following the election or appointment of
FMC's designees and prior to the Effective Time, any amendment or termination
of the Merger Agreement by the Company, any extension by the Company of the
time for the performance of any of the obligations or other acts of FMC or the
Purchaser or waiver of any of the Company's rights under the Merger Agreement,
or any other action taken by the Board in connection with the Merger
Agreements, requires the concurrence of a majority of the directors of the
Company then in office who are not Purchaser Insiders if such amendment,
termination, extension, waiver or action would have an adverse effect on the
minority stockholders of the Company.
The Merger. The Merger Agreement provides that at the Effective Time the
Purchaser will be merged with and into the Company. Following the Merger, the
separate corporate existence of the Purchaser will cease and the Company will
continue as the surviving corporation (the "Surviving Corporation"). The
Certificate of Incorporation of the Company, as in effect immediately prior to
the Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation, until thereafter amended in accordance with the provisions thereof
and of the Merger Agreement and applicable law. Subject to the provisions of
the Merger Agreement relating to indemnification, the By-Laws of the Purchaser
in effect at the time of the Effective Time shall be the By-Laws of the
Surviving Corporation until amended in accordance with the provisions thereof
and applicable law. Subject to applicable law, the directors of the Purchaser
immediately prior to the Effective Time will be the initial directors of the
Surviving Corporation and will hold office until their respective successors
are duly elected and qualified, or their earlier death, resignation or removal,
and the officers of the Company immediately prior to the Effective Time will be
the initial officers of the Surviving Corporation and will hold office until
their respective successors are duly elected and qualified, or their earlier
death, resignation or removal. By virtue of the Merger, at the Effective Time,
each Share issued and outstanding immediately prior to the Effective Time
(other than any Shares held by FMC, the Purchaser, any wholly-owned subsidiary
of FMC or the Purchaser, in the treasury of the Company or by any wholly-owned
subsidiary of the Company (which Shares, by virtue of the Merger and without
any action on the part of the holder thereof, are cancelled and retired and
cease to exist with no payment being made with respect thereto) and other than
Dissenting Shares (as defined below)) shall be converted into the right to
receive in cash $28.00 (or such higher price, if any, paid in the Offer),
payable to the holder thereof, without interest thereon, upon surrender of the
certificate formerly representing such Share. At the Effective Time, each share
of common stock of the Purchaser issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger, be converted into and become
one share of common stock of the Surviving Corporation.
Pursuant to the Merger Agreement, the Company will use all reasonable efforts
to cause the holder of each outstanding option to purchase Shares (an "Option")
granted under the Company's 1987 Non-Qualified Stock Option and Restricted
Stock Award Plan or the Company's 1990 Stock Incentive Plan (collectively, the
"Option Plans") to agree that each such Option shall be cancelled, upon the
acceptance for payment of Shares by the Purchaser pursuant to the Offer, at
which time the Company will pay each holder of an Option (whether or not such
Option is then vested or exercisable) an amount determined by multiplying (i)
the excess, if any, of $28.00 (or such higher price, if any, paid in the Offer)
over the applicable exercise price of such Option by (ii) the number of Shares
such holder could have purchased if such holder had exercised such Option in
full immediately prior to such time (without giving effect to any antidilutive
changes in the number of Shares arising from the Merger). In the case of the
1987 Option Plan, the Company will in any event take such action prior to the
expiration date for the Offer as is necessary to ensure that Options issued
thereunder will have been extinguished as of the Effective Time upon payment of
the amount contemplated by the preceding sentence for each Option. Prior to the
Effective Time, the Company shall obtain all consents necessary to give effect
to the transaction described above and shall make the payments provided above
to those holders of Options who have not consented prior to the time of
acceptance for payment as soon as possible after obtaining such consent.
9
<PAGE>
The Merger Agreement provides that, if required by law in order to consummate
the Merger, the Company will convene a special meeting of its stockholders as
soon as practicable following the acceptance for payment of and payment for
Shares by the Purchaser pursuant to the Offer for the purpose of considering
and taking action upon the Merger Agreement. The Merger Agreement further
provides that, notwithstanding the foregoing, if FMC, the Purchaser or any
other subsidiary of FMC acquires at least 90% of the outstanding Shares, the
parties to the Merger Agreement will take the necessary and appropriate action
to cause the Merger to become effective as soon as practicable after the
acceptance for payment of and payment for the Shares by the Purchaser pursuant
to the Offer without a meeting of the stockholders of the Company, in
accordance with Section 253 of the Delaware Law.
Dissenting Shares. Shares outstanding immediately prior to the Effective Time
and held by a stockholder who has not voted in favor of the Merger or consented
thereto in writing and who has demanded appraisal for such Shares in accordance
with Section 262 of the Delaware Law, if such Section 262 provides for
appraisal rights for such Shares in the Merger ("Dissenting Shares"), shall not
be converted into the right to receive $28.00 (or such higher price, if any,
paid in the Offer), unless and until such stockholder fails to perfect or
withdraws or otherwise loses his right to appraisal and payment under the
Delaware Law. If, after the Effective Time, any such stockholder fails to
perfect or withdraws or loses his right to appraisal, such Dissenting Shares
shall thereupon be treated as if they had been converted as of the Effective
Time into the right to receive $28.00 (or such higher price, if any, paid in
the Offer), without interest or dividends thereon. The Company shall give FMC
prompt notice of any demands received by the Company for appraisal of Shares
and, prior to the Effective Time, FMC shall have the right to participate in
all negotiations and proceedings with respect to such demands. Prior to the
Effective Time, the Company shall not, except with the prior written consent of
FMC, make any payment with respect to, or settle or offer to settle, any such
demands.
Representations and Warranties of the Company. The Merger Agreement contains
customary representations and warranties with respect to the Company, including
(i) with respect to the organization, corporate powers and qualifications of
the Company and its Significant Subsidiaries (as defined in Section 4.01 of the
Merger Agreement); (ii) that the charter and by-laws of the Company and each of
the Significant Subsidiaries are complete and correct; (iii) with respect to
the capitalization of the Company; (iv) that the execution and delivery of the
Merger Agreement by the Company and the consummation by the Company of the
transactions contemplated therein have been duly and validly authorized and
approved by the Company's Board and that no other corporate proceedings on the
part of the Company are necessary to authorize or approve the Merger Agreement
or to consummate the transactions contemplated therein (other than, with
respect to the Merger, the approval and adoption of the Merger and the Merger
Agreement by the affirmative vote of the holders of a majority of the Shares
then outstanding, to the extent required by applicable law); (v) with respect
to the absence of any conflict between the terms and provisions of the Merger
Agreement and the transactions contemplated thereby with any laws, regulations,
agreements, contracts or other instruments and obligations; (vi) with respect
to the accuracy of the documents filed with the SEC; (vii) with respect to the
Company's financial statements and financial condition; (viii) that the Board
has taken appropriate action such that the provisions of the Business
Combination Law will not apply to any of the transactions contemplated by the
Merger Agreement; (ix) that assuming the accuracy of FMC's representation
regarding the number of Shares it currently owned, neither the execution nor
the delivery of the Merger Agreement, nor the commencement of the Offer, will
result in a "Distribution Date" (as defined in the Rights Agreement); (x) with
respect to the absence of any broker or other fees or commissions, other than
fees in connection with Salomon's engagement (xi) with respect to the absence
of changes, events, conditions or developments reasonably likely to result in a
material adverse change in the business, operations, financial condition or
long-term profitability of the Company (other than changes arising from general
economic or industry conditions or from the commencement of the Offer initially
made on May 5, 1995, or the acquisition proposal made by FMC on April 3, 1995),
and that since February 28, 1995, the Company has not taken certain material
actions or agreed to take certain material actions that the Company agrees it
will not take after the date of the Merger Agreement; and (xii) that the
representations and warranties of the Company contained in the Merger Agreement
(as modified by the Company Disclosure Schedule and certain
10
<PAGE>
other sections of the Merger Agreement) will be true and correct as of the
expiration date of the Offer as though then made (other than those as of a
specific date which will be true and correct in all material respects as of
such date).
Representations and Warranties of FMC and the Purchaser. The Merger Agreement
contains customary representations and warranties by FMC and the Purchaser,
including (i) with respect to the organization, corporate powers and
qualifications of FMC and Purchaser; (ii) that both FMC and the Purchaser have
the necessary corporate power and authority to execute and deliver the Merger
Agreement and to consummate the transactions contemplated therein; (iii) with
respect to the absence of any conflict between the terms and provisions of the
Merger Agreement and the transactions contemplated thereby with any laws,
regulations, agreements, contracts or other instruments and obligations; (iv)
with respect to information supplied by FMC and the Purchaser in the Offer
documents, Schedule 14D-9, the proxy statement and other filings with the SEC
or such other Governmental Entity; (v) that FMC or the Purchaser has available
to it the funds necessary to consummate the Offer and the Merger and the
transactions contemplated thereby; and (vi) that, as of the date of the Merger
Agreement, neither FMC or any of its affiliates is an "Interested Stockholder"
as such term is defined in the Business Combination Law, or an "Acquiring
Person" as such term is defined in the Rights Agreement.
Covenants. The Merger Agreement obligates the Company and its subsidiaries,
from June 11, 1995 until the Effective Time, to conduct their operations only
in the ordinary and usual course of business consistent with past practice and
obligates the Company and its subsidiaries to preserve intact their business
organizations, to keep available the services of their present officers and key
employees and to preserve the goodwill of those having business relationships
with it. The Merger Agreement also contains specific covenants as to certain
impermissible activities of the Company prior to the Effective Time, which
provide that the Company will not (and will not permit any of its subsidiaries
to) without the prior written consent of FMC: (i) adopt any amendment to its
charter or By-Laws or comparable organizational documents or the Rights
Agreement; (ii) except for issuances of capital stock of the Company's
subsidiaries to the Company or a wholly-owned subsidiary of the Company, issue,
reissue, pledge or sell, or authorize the issuance, reissuance, pledge or sale
of (a) additional shares of capital stock of any class, or securities
convertible into capital stock of any class, or any rights, warrants or options
to acquire any convertible securities or capital stock, other than the issuance
of Shares, in accordance with the terms of the instruments governing such
issuance on the date of the Merger Agreement, pursuant to the exercise of
options outstanding on the date hereof, or (b) any other securities in respect
of, in lieu of, or in substitution for, Shares outstanding on the date of the
Merger Agreement; (iii) declare, set aside or pay any dividend or other
distribution (whether in cash, securities or property or any combination
thereof) in respect of any class or series of its capital stock other than
between any of the Company and any of its wholly-owned subsidiaries, except for
(y) the regular quarterly dividend on the Common Shares not in excess of $0.055
per Common Share with a record and payment date in accordance with recent
practice, provided that such dividend may not be declared if shares are
accepted for payment in accordance with the Offer and the Merger Agreement
prior to July 15, 1995 and (z) the redemption of the Rights when and as
provided in the Merger Agreement; (iv) split, combine, subdivide, reclassify or
redeem, purchase or otherwise acquire, or propose to redeem or purchase or
otherwise acquire, any shares of its capital stock, or any of its other
securities; (v) except for (a) increases in salary and wages granted to
officers and employees of the Company or its subsidiaries in conjunction with
promotions or other changes in job status or normal compensation reviews in the
ordinary course of business consistent with past practice, or (b) increases in
salary, wages and benefits to employees of the Company pursuant to collective
bargaining agreements entered into in the ordinary course of business
consistent with past practice: increase the compensation or fringe benefits
payable or to become payable to its directors, officers or key employees
(whether from the Company or any of its subsidiaries), or pay or award any
benefit not required by any existing plan or arrangement (including, without
limitation, the granting of stock options, stock appreciation rights, shares of
restricted stock or performance units pursuant to the Option Plans or
otherwise) or grant any additional severance or termination pay to any officer,
director or headquarter's employee of the Company or to the president of either
Principal Subsidiary (as defined in the Merger Agreement) (other than as
required by existing agreements or policies described in the Company Disclosure
Statement), or enter into any employment or severance agreement with any
director, officer or other key employee of the Company or
11
<PAGE>
any of its subsidiaries or establish, adopt, enter into, amend or waive any
performance or vesting criteria under any collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, savings, welfare, deferred compensation, employment, termination,
severance or other employee benefit plan, agreement, trust, fund, policy or
arrangement for the benefit or welfare of any directors, officers or current or
former employees ("Employee Benefit Arrangements"), except in each case to the
extent required by applicable law or regulation; provided, however, that
nothing herein will be deemed to prohibit the payment of benefits as they
become payable or prevent the payment of certain accrued bonuses and sales
incentive payments; (vi) except as set forth in the Company Disclosure
Schedule, acquire, sell, lease or dispose of any assets or securities which are
material to the Company and its subsidiaries, or enter into any commitment to
do any of the foregoing or enter into any material commitment or transaction
outside the ordinary course of business consistent with past practice other
than transactions between a wholly owned subsidiary of the Company and the
Company or another wholly owned subsidiary of the Company; (vii) except as set
forth in the Company Disclosure Schedule (x) incur, assume or pre-pay any long-
term debt or incur or assume any short-term debt, except that the Company and
its subsidiaries may incur or pre-pay debt in the ordinary course of business
in amounts and for purposes consistent with past practice under existing lines
of credit, (y) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations
of any other person except in the ordinary course of business consistent with
past practice, or (z) make any loans, advances or capital contributions to, or
investments in, any other person except in the ordinary course of business
consistent with past practice and except for loans, advances, capital
contributions or investments between any wholly owned subsidiary of the Company
and the Company or another wholly owned subsidiary of the Company; (vii) settle
or compromise any suit or claim or threatened suit or claim where the amount
involved was greater than $250,000; (viii) other than in the ordinary course of
business consistent with past practice, (a) modify, amend or terminate any
contract, (b) waive, release, relinquish or assign any contract (or any of the
Company's rights thereunder), right or claim, or (c) cancel or forgive any
indebtedness owed to the Company or any of its subsidiaries in excess of
$250,000 and in the case of (a) and (b) is material to the Company and its
subsidiaries taken as a whole; provided, however, that the Company may not
under any circumstance waive or release any of its rights under any
confidentiality agreement to which it is a party (other than provisions
limiting control-related activities if the Company's Board of Directors, in
good faith and upon the advice of counsel determines that its fiduciary duties
require it to do so); (ix) make any tax election not required by law or settle
or compromise any tax liability, in any case that is material to the Company
and its subsidiaries; or (x) agree in writing or otherwise to take any of the
foregoing actions prohibited under Section 6.01 of the Merger Agreement or any
action which would cause any representation or warranty in the Merger Agreement
to be or become untrue or incorrect in any material respect.
Access to Information. The Merger Agreement provides that until the Effective
Time, the Company will, and will cause its subsidiaries, and each of their
respective officers, directors, employees, counsel, advisors and
representatives (collectively, the "Company Representatives") to give FMC and
the Purchaser and their respective officers, employees, counsel, advisors and
representatives (collectively, the "FMC Representatives") full access (subject,
however, to existing confidentiality and similar non-disclosure obligations and
the preservation of attorney-client and work product privileges), during normal
business hours, to the offices and other facilities and to the books and
records of the Company and its subsidiaries and will cause the Company
Representatives and the Company's subsidiaries to furnish FMC, the Purchaser
and the FMC Representatives to the extent available with such financial and
operating data and such other information with respect to the business and
operations of the Company and its subsidiaries as FMC and the Purchaser may
from time to time request. In addition, FMC will comply with the terms of the
Confidentiality Agreement.
Reasonable Best Efforts. Subject to terms and conditions herein provided and
to applicable legal requirements, each of the parties to the Merger Agreement
has also agreed to use its reasonable best efforts to take, or cause to be
taken, all action, and to do, or cause to be done (in the case of the Company
consistent with the fiduciary duties of the Company's Board of Directors under
applicable law as provided in the Merger Agreement), and to assist and
cooperate with the other parties hereto in doing, as promptly as practicable,
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<PAGE>
all things necessary, proper or advisable under applicable laws and regulations
to ensure that the conditions set forth in Annex I to the Merger Agreement and
Article VII of the Merger Agreement are satisfied and to consummate and make
effective the transactions contemplated by the Offer and the Merger Agreement.
In addition, the parties have agreed that if at any time prior to the Effective
Time any event or circumstance relating to either the Company or FMC or the
Purchaser or any of their respective subsidiaries, should be discovered by the
Company or FMC and which should be set forth in an amendment to the Offer
Documents or Schedule 14D-9, the discovering party will promptly inform the
other party of such event or circumstance. If at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes of
the Merger Agreement, including the execution of additional instruments, the
proper officers and directors of each party to the Merger Agreement shall take
all such necessary action.
Public Announcements. The Merger Agreement provides that until the Purchaser
purchases Shares pursuant to the Offer, FMC, the Purchaser and the Company
agree to use reasonable efforts to consult with each other before issuing any
press release or otherwise making any public statement with respect to the
transactions contemplated by the Merger Agreement.
Employee Benefit Arrangements. With respect to employee benefit matters, the
Merger Agreement provides that the Company will honor and, from and after the
Effective Time, FMC will cause the Surviving Corporation to honor, all
obligations under Employee Benefit Arrangements to which the Company or any of
its subsidiaries is presently a party which are listed in Section 6.06 of the
Company Disclosure Schedule. Notwithstanding the foregoing, from and after the
Effective Time, subject to the remaining provisions of Section 6.06 to the
Merger Agreement, the Surviving Corporation shall have the right to amend,
modify, alter or terminate any Employee Benefit Arrangements, provided that any
such action shall not adversely affect the rights of any employees or other
beneficiaries which shall have arisen thereunder prior to such amendment,
modification, alteration or termination and shall not affect any rights for
which the agreement of the other party or a beneficiary is required.
Notwithstanding the foregoing, for a period of two years following the
Effective Time, FMC shall cause the Surviving Corporation to continue to
provide to employees of the Company and its subsidiaries (excluding employees
covered by collective bargaining agreements) Fringe Benefits (as defined below)
which are in the aggregate no less favorable than those provided to such
employees as of the date hereof; provided, that nothing in this sentence shall
be deemed to limit or otherwise affect the right of the Surviving Corporation
to terminate employment or change the place of work, responsibilities, status
or designation of any employee or group of employees as the Surviving
Corporation may determine in the exercise of its business judgment and in
compliance with applicable laws. Solely for purposes of eligibility and vesting
under Employee Benefit Arrangements (including without limitation plans or
programs of Parent and its affiliates after the Effective Time), all service
with the Company or any of its subsidiaries prior to the Effective Time shall
be treated as service with Parent and its affiliates. "Fringe Benefits" means
only the following benefits: any health, dental, pension, life insurance, long-
term disability, severance, retirement or savings plan, policy or arrangement.
Indemnification. Under the Merger Agreement, FMC has agreed that all rights
to indemnification existing in favor of any director or officer of the Company
and its subsidiaries (the "Indemnified Parties"), as provided in their
respective charters or by-laws or, to the extent set forth in the Company
Disclosure Statement, as provided in an agreement between an Indemnified Party
and the Company or one of its subsidiaries, will survive the Merger and will
continue in full force and effect for a period of not less than six years from
the Effective Time; provided that in the event any claim or claims are asserted
or made within such six-year period, all rights to indemnification in respect
of any such claim or claims shall continue until final disposition of any and
all such claims. After the Effective Time, FMC agrees to cause the Surviving
Corporation to honor all rights to indemnification referred to in the preceding
sentence. Without limitation of the foregoing, in the event any such
Indemnified Party is or becomes involved in any capacity in any action,
proceeding or investigation in connection with any matter, including, without
limitation, the transactions contemplated by the Merger Agreement, occurring
prior to, and including, the Effective Time, FMC will cause to be paid in
accordance with the applicable charters, by-laws and agreements, as incurred
such Indemnified Party's legal and other expenses (including the cost of any
investigation and preparation)
13
<PAGE>
incurred in connection therewith. FMC will also pay all expenses, including
attorney's fees, that may be incurred by any Indemnified Party in enforcing the
indemnity and other obligations provided for in the Merger Agreement, subject
to the limitations of the Delaware Law to the extent applicable. FMC has also
agreed that the Company and the Surviving Corporation will cause to be
maintained in effect for not less than four years from the Effective Time the
policies of the director's and officer's liability insurance maintained by the
Company; provided that the Surviving Corporation may substitute other policies
not materially less advantageous (other than to a de minimis extent) to the
beneficiaries of the current policies and provided that such substitution shall
not result in any gaps or lapses in coverage with respect to matters occurring
prior to the Effective Time; and provided, further, that the Surviving
Corporation shall not be required to pay an annual premium in excess of 250% of
the last annual premium paid by the Company prior to the date of the Merger
Agreement and if the Surviving Corporation is unable to obtain the insurance,
it shall obtain as much comparable insurance as possible for an annual premium
equal to such maximum amount.
Notification of Certain Matters. FMC and the Company are required to promptly
notify each other of (i) the occurrence or non-occurrence of any fact or event
which would be reasonably likely (a) to cause any representation or warranty
contained in the Merger Agreement to be untrue or inaccurate in any material
respect at any time to the Effective Time or (b) to cause any material
covenant, condition or agreement under the Merger Agreement not to be complied
with or satisfied in all material respects and (ii) any failure of the Company
or FMC, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it in any material respect;
provided, however, that no such notification will affect the representations or
warranties of any party or the conditions to the obligations of any party.
Redemption of Rights. Under the Merger Agreement, the Company has agreed that
it will redeem the Rights effective immediately prior to the Purchaser's
acceptance for payment of Shares pursuant to the Offer and will not otherwise
redeem the Rights, or amend or terminate the Rights Agreement, unless in each
such case the Board determines in good faith with the advice of outside counsel
that failure to take such action would result in a breach of its fiduciary
duties under applicable law. The Company has agreed that the Offer will
provide, and require that tendering holders of Shares confirm, that FMC will be
entitled to receive and retain the amounts paid in redemption of all Rights
attached to Shares acquired pursuant to the Offer.
State Takeover Laws. The Merger Agreement provides that the Company will,
upon the request of the Purchaser, take all reasonable steps to assist in any
challenge by the Purchaser to the validity or applicability to the transactions
contemplated by the Merger Agreement, including the Offer and the Merger, of
any state takeover law.
Disposition of Litigation and General Releases. The parties to the Merger
Agreement agree to immediately dismiss, with prejudice, with each party bearing
its own cost and litigation expenses, all proceedings pending between them and
their affiliates (including their respective directors), including any and all
counterclaims asserted against any such parties or their directors and officers
in connection with the Offer, as initially made on May 5, 1995, and each shall
thereafter sign and deliver such further papers as may be necessary to effect
such dismissals.
No Solicitation. Prior to the Effective Time, the Company may not, and will
not, authorize or permit any of its subsidiaries or any of its or its
subsidiaries' directors, officers, employees, agents or representatives,
directly or indirectly, to solicit, initiate, knowingly encourage or actively
facilitate, or furnish or disclose non-public information in furtherance of,
any inquiries or the making of any proposal with respect to any merger,
consolidation or other business combination involving the Company or either of
Smith Meter Inc. or Crosby Valve & Gage Company (the "Principal Subsidiaries")
or acquisition of any capital stock or any material portion of the assets
(except for acquisitions of assets in the ordinary course of business
consistent with past practice) of the Company or either of its Principal
Subsidiaries, or any combination of the foregoing (an "Acquisition
Transaction") or negotiate, explore or otherwise engage in substantive
discussions with any person (other than Purchaser, FMC or their respective
directors, officers, employees, agents and representatives) with respect to any
Acquisition Transaction or enter into any agreement, arrangement or
14
<PAGE>
understanding requiring it to abandon, terminate or fail to consummate the
Merger or any other transactions contemplated by the Merger Agreement; provided
that the Company may furnish information to, and negotiate or otherwise engage
in substantive discussions with, any party who delivers a written proposal for
an Acquisition Transaction if the Board of Directors of the Company determines
in good faith by a majority vote, based upon advice from its outside legal
counsel, that failing to take such action would constitute a breach of the
fiduciary duties of the Board and such proposal is, in the written opinion of
Salomon Brothers Inc, more favorable to the Company's stockholders than the
transactions contemplated by the Merger Agreement. From and after June 11,
1995, the Merger Agreement provides that the Company will immediately advise
the Purchaser in writing of the receipt, directly or indirectly, of any
inquiries or proposals relating to an Acquisition Transaction and furnish to
the Purchaser either a copy of any such proposal or a written summary of any
such proposal.
Conditions to Consummation of the Merger. Pursuant to the Merger Agreement,
the respective obligations of FMC, the Purchaser and the Company to consummate
the Merger are subject to the satisfaction or waiver, at or before the
Effective Time, of each of the following conditions: (i) the stockholders of
the Company have duly approved the transactions contemplated by the Merger
Agreement, if required by applicable law; (ii) the Purchaser has accepted for
payment and paid for Shares pursuant to the Offer in accordance with the terms
of the Merger Agreement; provided that this condition will be satisfied with
respect to FMC and the Purchaser if the Purchaser fails to accept for payment
or pay for Shares pursuant to the Offer in violation of the terms of the Offer;
and (iii) the consummation of the Merger is not restrained, enjoined or
prohibited by any order, judgment, decree, injunction or ruling of a court of
competent jurisdiction or any Governmental Entity (as defined in the Merger
Agreement) and there is not any statute, rule or regulation enacted,
promulgated or deemed applicable to the Merger by any Governmental Entity which
prevents the consummation of the Merger.
Termination. The Merger Agreement may be terminated and the Merger
contemplated thereby may be abandoned at any time, notwithstanding approval
thereof by the stockholders of the Company (with any termination by FMC also
being an effective termination by the Purchaser): (i) by the mutual written
consent of FMC and the Company; (ii) by the Company if (a) the Purchaser fails
to commence the Offer as provided by the Merger Agreement, (b) the Purchaser
has not accepted for payment and paid for Shares pursuant to the Offer in
accordance with the terms thereof on or before September 15, 1995 or (c) the
Purchaser fails to purchase validly tendered Shares in violation of the terms
of the Offer or the Merger Agreement; (iii) by FMC or the Company if the Offer
is terminated or withdrawn pursuant to its terms without any Shares being
purchased thereunder; provided, however, that neither FMC nor the Company may
so terminate the Merger Agreement if such party shall have materially breached
the Merger Agreement or, in the case of FMC, if it or the Purchaser is in
material violation of the terms of the Offer; (iv) by FMC or the Company if any
court or other Governmental Entity has issued, enacted, entered, promulgated or
enforced any order, judgment, decree, injunction, or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the Merger and such
order, judgment, decree, injunction, ruling or other action shall have become
final and nonappealable; provided, however, that FMC may not so terminate the
Merger Agreement if any such order, judgment, decree, injunction, ruling or
other action is the result of or in any way related to any Antitrust Laws (as
defined in the Merger Agreement); and provided further that the party seeking
to terminate the Merger Agreement shall have used its best efforts to remove or
lift such order, decree or ruling; (v) by the Company if, prior to the purchase
of Shares pursuant to the Offer in accordance with the terms of the Merger
Agreement, the Board approves an agreement to effect an Acquisition Transaction
if the Board has determined in good faith, upon advice from its outside
counsel, that failure to approve such agreement and terminate the Merger
Agreement would constitute a breach of fiduciary duties of the Board; provided
that such termination shall not be effective unless and until the Company shall
have paid to FMC all of the fees and expenses described below, (vi) by FMC if
the Board withdraws, modifies or changes its recommendation or approval in
respect of the Merger Agreement or the Offer, except due to FMC's or the
Purchaser's material breach of the Merger Agreement or material violation of
the terms of the Offer, in a manner adverse to FMC or the Purchaser or if the
Board recommends or approves another Acquisition Transaction or the Company
enters into any agreement to effect an Acquisition Transaction; (vii) by FMC if
it shall not have breached, in
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<PAGE>
any material respect, any of its obligations under the Merger Agreement or
under the Offer and no Shares shall have been purchased pursuant to the Offer
on or before September 15, 1995; provided, however, that FMC may not so
terminate the Merger Agreement on or before March 31, 1996 if the conditions to
FMC's obligations to consummate the transactions contemplated hereunder have
not been satisfied on account of any impediment under any Antitrust Laws; or
(viii) by FMC if any of the conditions set forth in Annex I to the Merger
Agreement shall not have been satisfied by the expiration date or, prior
thereto, shall have become impossible to satisfy by the expiration date, unless
such circumstance results from the failure of the terminating party to perform
in any material respect any of its obligations under the Merger Agreement;
provided, however, that the Company may not so terminate the Merger Agreement
if FMC is willing to waive the relevant condition (other than the Minimum
Condition).
Pursuant to the Merger Agreement, in the event of the termination of the
Merger Agreement, the Merger Agreement becomes void and has no effect, without
any liability on the part of any party or its directors, officers or
stockholders, other than the provisions of Section 8.02, Section 8.03 and the
last sentence of Section 6.02 of the Merger Agreement, which shall survive any
such termination. Nothing contained in Section 8.02 of the Merger Agreement
shall relieve any party from liability for any breach of the Merger Agreement
or the Confidentiality Agreement.
Fees and Expenses. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with the Offer, the Merger Agreement and the
transactions contemplated by the Merger Agreement shall be paid by the party
incurring such expenses. In the event that the Merger Agreement is terminated
pursuant clauses (v) or (vi) in the second preceding paragraph, then the
Company shall promptly reimburse FMC for the documented fees and expenses of
FMC and the Purchaser related to the Merger Agreement, the transactions
contemplated thereby and any related financing (subject to a maximum of
$2,400,000) and pay FMC a termination fee of $8,000,000. The prevailing party
in any legal action undertaken to enforce the Merger Agreement or any provision
thereof shall be entitled to recover from the other party the costs and
expenses (including attorneys' and expert witness fees) incurred in connection
with such action.
Amendment. Subject to Section 1.03(c), the Merger Agreement may be amended by
the Company, FMC and the Purchaser at any time before or after any approval of
the Merger Agreement by the stockholders of the Company but, after any such
approval, no amendment shall be made which decreases the consideration of
$28.00 per share or which adversely affects the rights of the Company's
stockholders hereunder without the approval of such stockholders. The Merger
Agreement may not be amended except by an instrument in writing signed on
behalf of all the parties.
Extension; Waiver. Subject to Section 1.03(c) of the Merger Agreement, at any
time prior to the Effective Time, the parties to the Merger Agreement may (i)
extend the time for the performance of any of the obligations or other acts of
any other party hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein by any other party or in any document, certificate
or writing delivered pursuant hereto by any other party or (iii) waive
compliance with any of the agreements of any other party or with any conditions
to its own obligations. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
8. CERTAIN CONDITIONS OF THE OFFER
Pursuant to the Merger Agreement, the conditions of the Offer contained,
among other places, in the Introduction and Section 14 of the Offer to Purchase
are hereby amended and restated in their entirety as follows:
Notwithstanding any other provisions of the Offer, the Purchaser shall not be
required to accept for payment or pay for any tendered Shares, unless the
Minimum Condition is satisfied. Furthermore, notwithstanding any other
provisions of the Offer, the Purchaser may, subject to the terms of the Merger
Agreement, amend the Offer or postpone the acceptance for payment of or payment
for tendered Shares if at
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<PAGE>
any time on or after June 11, 1995 (unless otherwise indicated below) and
before the time of payment for any Shares, any of the following events (each,
an "Event") shall occur:
(a) any order or preliminary or permanent injunction shall be entered in
any action or proceeding before any court of competent jurisdiction or any
statute, rule, regulation, legislation, or order shall be enacted, entered,
enforced, promulgated, amended or issued by any United States legislative
body, court, government or governmental, administrative or regulatory
authority or agency (other than the waiting period provisions of the HSR
Act) which shall remain in effect and which shall have the effect of making
illegal or restraining or prohibiting the making of the Offer, the
acceptance for payment of, or payment for, the Shares by FMC, the Purchaser
or any other affiliate of FMC, or the consummation of the Offer or the
Merger provided, that FMC shall, if necessary to prevent the taking of such
action, or the enactment, enforcement, promulgation, amendment, issuance or
application of any statute, rule, regulation, legislation, judgment, order
or injunction, Offer to accept an order to divest such of the Company's or
FMC's assets and businesses as may be necessary to forestall such
injunction or order and to hold separate such assets and business pending
such divestiture; or
(b) the Board or any committee thereof shall have withdrawn, or shall
have modified or amended in a manner adverse to FMC or the Purchaser, the
approval or recommendation of the Offer, the Merger or the Merger
Agreement, or approved or recommended any other acquisition of Shares other
than the Offer and the Merger; or
(c) the Company and the Purchaser and FMC shall have reached an agreement
that the Offer or the Merger Agreement be terminated, or the Merger
Agreement shall have been terminated in accordance with its terms; or
(d) the Company shall have breached its representations and warranties
set forth in the Merger Agreement or failed to perform any of its
obligations, covenants or agreements under the Merger Agreement (other than
any breaches or failures to perform that, in the aggregate, do not have and
are not reasonably expected to have a material adverse effect on (i) the
financial condition, business, operations or long-term profitability of the
Company and its subsidiaries taken as a whole, (ii) the value reasonably
attributable to the Company by FMC or (iii) the ability of FMC to own or
control the Company, its equity securities and its assets); or
(e) Options issued and outstanding under the Company's 1990 Stock
Incentive Plan to purchase more than 25,000 Shares shall not have consented
to the changes described in Section 2.09 of the Merger Agreement; or
(f) there shall have occurred, and continued to exist, (i) any general
suspension of, or limitation on prices for, trading in securities on the
New York Stock Exchange, (ii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iii) a
commencement of a war, armed hostilities or other national or international
crisis directly or indirectly involving the United States, (iv) any
limitation by any Governmental Entity on, or any other event which
adversely affects, the extension of credit by banks or other lending
institutions in the United States which has a material adverse effect on
the ability of FMC to obtain financing for the Offer, (v) in the case of
any of the foregoing clauses (i) through (iv) existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof.
The foregoing conditions are for the benefit of FMC and the Purchaser and may
be asserted by FMC or the Purchaser regardless of the circumstances giving rise
to any such conditions and may be waived by FMC or the Purchaser in whole or in
part at any time and from time to time in their reasonable discretion, in each
case, subject to the terms of the Merger Agreement. The failure by FMC or the
Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
The Offer may be terminated by the Purchaser if the Merger Agreement is
terminated pursuant to its terms.
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9. SOURCE AND AMOUNT OF FUNDS
Section 12 of the Merger Agreement is amended and supplemented by this
Section 9 of this Supplement.
The total amount of funds required by the Purchaser to purchase the Shares
pursuant to the Offer and the Merger and to pay fees and expenses related to
the Offer and the Merger is approximately $320 million. The Purchaser plans to
obtain all funds needed for the Offer and the Merger through capital
contributions or intercompany borrowings which will be made by FMC and/or
various wholly owned direct or indirect subsidiaries of FMC to the Purchaser.
FMC and/or such subsidiaries plan to obtain such funds from general corporate
funds and through FMC's current Credit Agreements, dated December 16, 1994, as
amended, among FMC, the lenders listed therein and Morgan Guaranty Trust
Company of New York, as agent, or other uncommitted credit lines from various
banks (the "Credit Facilities"). The Credit Facilities provide for revolving
credit in an aggregate amount of $845 million for general corporate purposes.
As of June 12, 1995, approximately $397 million of indebtedness is outstanding
under the Credit Facilities. Although the Credit Agreements originally
restricted borrowings for the purpose of purchasing "margin securities" such as
the Shares, FMC subsequently entered into amendments to the Credit Agreements
permitting FMC to purchase the Shares.
In the Merger Agreement, each of FMC and the Purchaser has represented that
it has available to it the funds necessary to consummate the Offer and the
Merger and the transactions contemplated thereby.
10. CERTAIN LEGAL MATTERS
Section 15 of the Offer to Purchase is amended and supplemented by this
Section 10 of this Supplement.
Certain Litigation. On May 5, 1995, the Company commenced litigation in the
District Court of Nueces County of the State of Texas against FMC alleging,
among other things, that acting under false pretenses, FMC obtained information
from the Company essential to its corporate decision-making and seeking, among
other things, a temporary injunction restraining, prohibiting and enjoining FMC
to:
(a) withdraw its unsolicited offer for the Company and enter into the
confidentiality and standstill agreement which had been offered by the
Company to FMC;
(b) refrain from utilizing the allegedly fraudulently obtained
confidential information in aid or preparation for any offer to purchase
the Company;
(c) refrain from utilizing the allegedly fraudulently obtained
confidential information in assisting or encouraging any other bid or offer
for the Company by any entity;
(d) turn over to the Company all records, reports, notes, or other
documents of whatsoever description recording, analyzing, referring to, or
otherwise reflecting any information obtained by FMC from its tours of the
Company's facilities; and
(e) turn over to the Company all nonpublic documents created by or on
behalf of the Company received from any source.
On May 8, 1995, FMC filed a separate action against the Company in the United
States District Court for the District of Delaware, which sought a declaration
that the Schedule 14D-1 filed by FMC satisfied the disclosure requirements of
the federal securities laws.
On May 11, 1995, the 214th District Court in Nueces County, Texas entered an
order staying the lawsuit that the Company had commenced against FMC pending
disposition of the case that FMC had previously filed against the Company in
Delaware Chancery Court. The court reserved the right to reconsider the stay
under certain circumstances. The Delaware Chancery Court case brought by FMC
challenged, among other things, the Company's refusal to negotiate with FMC
promptly and actively in good faith and the Company's threat to exclude FMC
from any auction or other process that may be instituted by it.
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On May 22, 1995, the 214th District Court of Nueces County, Texas denied the
Company's motion for reconsideration of the order staying the lawsuit that the
Company had commenced against FMC.
As described in Section 7 above, FMC and the Company have agreed in the
Merger Agreement to immediately dismiss, with prejudice, all proceedings
pending between them and their affiliates, including any and all counterclaims
asserted against any such parties in connection with the Offer, as initially
made on May 5, 1995.
Antitrust. On May 8, 1995, FMC filed with the FTC and the Antitrust Division
a Premerger Notification and Report Form in connection with the purchase of
Shares pursuant to the Offer. The waiting period required by the HSR Act
expired at 11:59 p.m. on May 23, 1995.
Federal Republic of Germany. FMC provided to the Cartel Office notice of the
Offer pursuant to the GWB Act, and received written confirmation from the
Cartel Office that it may consummate the purchase of Shares pursuant to the
Offer.
11. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making
of the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, the Purchaser
may, in its discretion, take such action as it may deem necessary to make the
Offer in any jurisdiction and extend the Offer to holders of Shares in such
jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to be
made on behalf of the Purchaser by the Dealer Manager or one or more registered
brokers or dealers that are licensed under the laws of such jurisdiction.
FMC and the Purchaser have filed with the Commission amendments to the Tender
Offer Statement on Schedule 14D-1 pursuant to Rule 14d-3 of the General Rules
and Regulations under the Exchange Act furnishing certain additional
information with respect to the Offer, and may file further amendments thereto.
The Tender Offer Statement on Schedule 14D-1 and any and all amendments
thereto, including exhibits, may be examined and copies may be obtained from
the Commission in the same manner as described in Section 8 of the Offer to
Purchase with respect to information concerning the Company (except that the
amendments will not be available at the regional offices of the Commission).
Except as modified by this Supplement, the terms and conditions set forth in
the Offer to Purchase remain applicable in all respects to the Offer and this
Supplement should be read in conjunction with the Offer to Purchase and the
related Letter of Transmittal.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF FMC OR THE PURCHASER NOT CONTAINED IN THE OFFER TO
PURCHASE AND HEREIN OR IN THE RELATED LETTER OF TRANSMITTAL AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
MII ACQUISITION CORP.
June 13, 1995
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Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificate for Shares
and Rights and any other required documents should be sent or delivered by each
stockholder of the Company or by such stockholder's 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:
THE CHASE MANHATTAN BANK, N.A.
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9:00 a.m.-5:00 p.m.
4 Chase MetroTech Ctr. Processing Corp New York City Time)
Brooklyn, NY 11245 Ft. Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Dr., 6th Floor 1-B
Floor Nassau and Liberty
Ft. Lee, NJ 07024 Streets
New York, NY 10081
By Facsimile Transmission:
(201) 592-4372
Information and Confirm by Telephone:
(201) 592-4370
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below, and will be furnished promptly at the
Purchaser's expense. You may also contact your broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
(212) 269-5550 (CALL COLLECT)
OR
(800) 758-7358
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1305
(212) 236-4565 (CALL COLLECT)
<PAGE>
STOCKHOLDERS WISHING TO TENDER THEIR SHARES SHOULD USE THIS LETTER OF
TRANSMITTAL. STOCKHOLDERS WHO HAVE PREVIOUSLY VALIDLY TENDERED (AND NOT
PROPERLY WITHDRAWN) SHARES USING THE GREEN LETTER OF TRANSMITTAL NEED NOT TAKE
ANY FURTHER ACTION IN ORDER TO TENDER SUCH SHARES.
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
MOORCO INTERNATIONAL INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MAY 5, 1995
AND THE SUPPLEMENT DATED JUNE 13, 1995
BY
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 26, 1995 UNLESS THE OFFER
IS EXTENDED.
The Depositary for the Offer is:
THE CHASE MANHATTAN BANK, N.A.
(800) 355-2663
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9:00 a.m.-5:00 p.m.
4 Chase MetroTech Ctr. Processing Corp New York City Time)
Brooklyn, NY 11245 Ft. Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Dr., 6th Floor 1-B
floor
Ft. Lee, NJ 07024 Nassau and Liberty
Streets
New York, NY 10081
By Facsimile Transmission:
(201) 592-4372
Confirm by Telephone:
(201) 592-4370
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE INSTRUCTIONS ACCOMPANYING
THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE SIGNING IT WHERE INDICATED.
This revised BLUE Letter of Transmittal or the previously circulated GREEN
Letter of Transmittal is to be completed by holders of Shares either if
certificates are to be forwarded herewith or, unless an Agent's Message (as
defined in Section 2 of the Offer to Purchase (as defined below)) is utilized,
if a tender of Shares are to be made by book-entry transfer into the account
of The Chase Manhattan Bank, N.A., as Depositary (the "Depositary"), at The
Depository Trust Company ("DTC"), the Midwest Securities Trust Company
("MSTC") or the Philadelphia Depository Trust Company ("PDTC") (each a "Book-
Entry Transfer Facility" and collectively the "Book-Entry Transfer
Facilities") pursuant to the procedures set forth in Section 3 of the Offer to
Purchase (as defined below).
<PAGE>
Stockholders whose certificates for such Shares (the "Share Certificates")
are not immediately available or who cannot deliver their Share Certificates
and all other required documents to the Depositary prior to the Expiration Date
(as defined in Section 1 of the Supplement), or who cannot complete the
procedure for book-entry transfer on a timely basis, must tender their Shares
according to the guaranteed delivery procedure set forth in Section 3 of the
Offer to Purchase. See Instruction 2. Delivery of documents to a Book-Entry
Transfer Facility does not constitute delivery to the Depositary.
[_]CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
Check Box of Book-Entry Transfer Facility:
[_]DTC [_]MSTC [_]PDTC
Account Number: _________________ Transaction Code Number: _________________
[_]CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
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: _____________________________
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED SHARE CERTIFICATE(S) AND SHARE(S)
HOLDER(S) (PLEASE FILL IN, IF BLANK, EXACTLY TENDERED (ATTACH ADDITIONAL LIST,
AS NAME(S) APPEAR(S) ON SHARE IF NECESSARY)
CERTIFICATE(S))
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TOTAL NUMBER
OF SHARES
SHARE REPRESENTED NUMBER OF
CERTIFICATE BY SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
TOTAL SHARES
- --------------------------------------------------------------------------------
</TABLE>
* Need not be completed by Book-Entry Stockholders.
** Unless otherwise indicated, it will be assumed that all Shares
represented by certificates delivered to the Depositary are being
tendered. See Instruction 4.
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to MII Acquisition Corp., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of FMC Corporation, a
Delaware corporation ("FMC"), the above-described shares of Common Stock, par
value $.01 per share (the "Shares"), of Moorco International Inc., a Delaware
corporation (the "Company"), and the associated Preferred Stock Purchase Rights
(the "Rights" and, unless the context otherwise requires, deemed to be included
in all references to the "Shares") issued pursuant to the Rights Agreement,
dated as of November 8, 1994, between the Company and the Bank of New York, a
New York banking corporation as Rights Agent, at a purchase price of $28.00 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 May 5, 1995
(the "Offer to Purchase"), as amended and supplemented by the Supplement to the
Offer to Purchase, dated June 13, 1995 (the "Supplement"), and in this revised
BLUE Letter of Transmittal (which, together with the Supplement, the Offer to
Purchase and the original GREEN Letter of Transmittal, constitutes the
"Offer"). The undersigned understands that Purchaser reserves the right to
transfer or assign, in whole or from time to time in part, to one or more of
its affiliates, the right to purchase all or any portion of the Shares tendered
pursuant to the Offer, receipt of which is hereby acknowledged.
The Company has agreed to effect a redemption of the Rights immediately prior
to the Purchaser's acceptance for payment of Shares pursuant to the Offer and
that the redemption price in respect of the Rights purchased pursuant to the
Offer will be paid to and retained by the Purchaser. By tendering Shares
pursuant to the Offer, the undersigned hereby confirms the undersigned's
agreement that the amount paid by the Company to redeem the Rights attached to
Shares of such stockholder acquired pursuant to the Offer will be paid to and
retained by the Purchaser.
Subject to, and effective upon, acceptance for payment of the Shares tendered
herewith in accordance with the terms and subject to the conditions of the
Offer, the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all of the Shares
that are being tendered hereby and any and all dividends (other than regular
quarterly cash dividends, not in excess of $0.055 per Share, declared on or
after July 15, 1995), distributions (including additional Shares) or rights
declared, paid or issued with respect to the tendered Shares on or after April
3, 1995 and payable or distributable to the undersigned on a date prior to the
transfer to the name of Purchaser (or nominee or transferee of Purchaser) on
the Company's stock transfer records of the Shares tendered herewith, and
irrevocably constitutes and appoints the Depositary the true and lawful agent
and attorney-in-fact of the undersigned with respect to such Shares with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest) to (a) deliver certificates for such Share or
transfer ownership of such Shares on the account books maintained by a Book-
Entry Transfer Facility, together in either case with appropriate evidences of
transfer, to the Depositary for the account of the Purchaser, (b) present such
Shares for transfer on the books of the Company and (c) receive all benefits
and otherwise exercise all rights of beneficial ownership of such Shares, all
in accordance with the terms and subject to the conditions of the Offer.
The undersigned irrevocably appoints Randall S. Ellis, Daniel N. Schuchardt
and Charlotte Mitchell Smith, and each of them, or any other designees of
Purchaser, as such stockholder's attorneys-in-fact and proxies of the
undersigned, each with full power of substitution, to the full extent of such
stockholder's rights with respect to the Shares tendered by such stockholder
and accepted for payment by Purchaser and with respect to any and all other
Shares or other securities or rights issued or issuable in respect of such
Shares on or after May 5, 1995. Such appointment will be effective upon the
acceptance for payment of such Shares by Purchaser in accordance with the terms
of the Offer. Upon such acceptance for payment, all prior powers of attorney
and proxies given by such stockholder with respect to such Shares (and such
other shares and securities) will be revoked without further action, and no
subsequent proxies may be given nor any subsequent written consents executed
(and, if given or executed, will not be deemed effective). The proxies (or
other designees of Purchaser) will be empowered to exercise all voting and
other rights of such stockholder as they in their sole discretion may deem
proper at any annual or special meeting of the Company's stockholders or any
adjournment or postponement thereof, by consent in lieu of any such meeting or
otherwise. Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, immediately upon Purchaser's payment for such
Shares Purchaser must be able to exercise full voting rights with respect to
such Shares.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and (b) when the Shares are accepted for payment by the
Purchaser, the Purchaser will acquire good, marketable and unencumbered title
to the Shares, free and clear of all liens, restrictions, charges and
encumbrances, and the same will not be subject to any adverse claim. The
undersigned, upon request, shall
3
<PAGE>
execute and deliver any signature guarantee or 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.
No authority herein conferred or agreed to be conferred by this Letter of
Transmittal 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, administrators, trustees
in bankruptcy, personal and legal representatives, successors and assigns of
the undersigned.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date (as defined in Section 1 of the Supplement) and, unless
theretofore accepted for payment by the Purchaser pursuant to the Offer, may
also be withdrawn at any time after July 5, 1995. See Section 4 of the Offer to
Purchase.
The undersigned understands that tenders of Shares pursuant to any of the
procedures described in Section 2 of the Supplement and Section 3 of the Offer
to Purchase and in the instructions hereto will constitute a binding agreement
between the undersigned and the Purchaser upon the terms and subject to the
conditions set forth in the Offer, including the undersigned's representation
and warranty that the undersigned owns the Shares being tendered. The
undersigned recognizes that under certain circumstances set forth in the Offer
to Purchase and in the Supplement, the Purchaser may not be required to accept
for payment any of the Shares tendered hereby and may terminate the Offer to
Purchase if the Merger Agreement is terminated pursuant to its terms.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificate(s)
for Shares not tendered or not accepted for payment in the name(s) of the
registered holder(s) appearing under "Description of Shares Tendered."
Similarly, unless otherwise indicated herein under "Special Delivery
Instructions," please mail the check for the purchase price and/or any
certificate(s) for Shares not tendered or not accepted for payment (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under "Description of Shares Tendered." In the event that
both the Special Delivery Instructions and the Special Payment Instructions are
completed, please issue the check for the purchase price and/or any
certificate(s) for Shares not tendered or accepted for payment in the name of,
and deliver such check and/or such certificates to, the person or persons so
indicated. Unless otherwise indicated herein under "Special Payment
Instructions," please credit any Shares tendered herewith by book-entry
transfer that are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility (as defined herein) designated above. The
undersigned recognizes that Purchaser has no obligation, pursuant to the
Special Payment Instructions, to transfer any Shares from the name(s) of the
registered holder(s) thereof if the Purchaser does not accept for payment any
of the Shares so tendered.
4
<PAGE>
[_] CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING THE SHARES THAT YOU OWN
HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of shares represented by the lost or destroyed certificates:
.
Please fill in the remainder of this Letter of Transmittal.
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if To be completed ONLY if
certificate(s) for Shares not certificate(s) for Shares not
tendered or not accepted for tendered or not accepted for
payment and/or the check for the payment and/or the check for the
purchase price of Shares accepted purchase price of Shares accepted
for payment are to be issued in for payment are to be sent to
the name of someone other than someone other than the
the undersigned or if Shares undersigned or to the undersigned
tendered by book-entry transfer at an address other than that
which are not accepted for shown above.
payment are to be returned by
credit to an account maintained
at a Book-Entry Transfer
Facility. Mail: [_] check [_] certificates
to:
Issue [_] check [_] certificates to:
Name:_____________________________
Name:_____________________________ (Please Print)
(Please Print)
Address:__________________________
Address:__________________________ ----------------------------------
---------------------------------- ----------------------------------
---------------------------------- (Include Zip Code)
(Include Zip Code) ----------------------------------
---------------------------------- (Taxpayer Identification or
(Taxpayer Identification or Social Security No.)
Social Security No.)
(See Substitute Form W-9 on Back
Cover)
Credit Shares tendered by book-
entry transfer that are not
accepted for payment to (Check
One):
[_] DTC[_] MSTC[_] PDTC
----------------------------------
(Account Number)
5
<PAGE>
IMPORTANT:
STOCKHOLDERS SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
X
-------------------------------------------------------
X
-------------------------------------------------------
Signature(s) of Holder(s)
Dated: ________________________________________________
(Must be signed by the registered holder(s) exactly as
name(s) appear(s) on Share Certificate(s) or on a se-
curity position listing or by person(s) authorized to
become registered holder(s) by certificates and docu-
ment transmitted herewith. If signature is by trust-
ees, executors, administrators, guardians, attorneys-
in-fact, officers of corporations or others acting in
a fiduciary or representative capacity, please provide
the following information and see Instruction 5.)
Name(s): ______________________________________________
------------------------------------------------
(Please Print)
Capacity (Full Title): ________________________________
Address: ______________________________________________
------------------------------------------------
------------------------------------------------
(Include Zip Code)
( )
Daytime Telephone Number: _____________________________
(Area
Code)
Tax Identification or Social Security No.: ____________
(See Substitute Form W-9 on Reverse Side)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature: _________________________________
Name: _________________________________________________
Name of Firm: _________________________________________
Address: ______________________________________________
------------------------------------------------
------------------------------------------------
(Include Zip Code)
( )
Daytime Telephone Number: _____________________________
(Area
Code)
Dated: , 1995
^ SIGN
^ HERE
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this Letter
of Transmittal (a) if this Letter of Transmittal is signed by the registered
holder(s) of Shares (which term, for purposes of this document, shall include
any participant in a Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of Shares) tendered herewith, unless
such holder(s) has completed either the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" above, or (b)
if such Shares are tendered for the account of a firm which is a bank, broker,
dealer, credit union, savings association or other entity which is a member in
good standing of a recognized Medallion Program approved by the Securities
Transfer Association (each of the foregoing being referred to as an "Eligible
Institution"). In all other cases, all signatures on this Letter of Transmittal
must be guaranteed by an Eligible Institution. See Instruction 5 of this Letter
of Transmittal.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
stockholders either if certificates are to be forwarded herewith or, unless an
Agent's Message is utilized, if tenders are to be made pursuant to the
procedure for tender by book-entry transfer set forth in Section 3 of the Offer
to Purchase. Certificates for all physically tendered Shares or timely
confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such
Shares into the Depositary's account at a Book-Entry Transfer Facility, as well
as a properly completed and duly executed Letter of Transmittal (or a facsimile
hereof), with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, 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 Section
1 of the Supplement).
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates for Shares 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 by properly completing and duly executing a Notice of Guaranteed
Delivery pursuant to the guaranteed delivery procedure set forth in Section 3
of the Offer to Purchase. Pursuant to such procedure: (i) such tender must be
made by or through an Eligible Institution; (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form made
available by the Purchaser, must be received by the Depositary on or prior to
the Expiration Date; and (iii) the certificates (or a Book-Entry Confirmation)
representing all tendered Shares, in proper form for transfer, in each case
together with the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, with any required signature guarantees (or, in the
case of a book-entry delivery, an Agent's Message) and any other documents
required by this Letter of Transmittal, must be received by the Depositary
within five New York Stock Exchange, Inc. ("NYSE") trading days after the date
of execution of such Notice of Guaranteed Delivery.
TENDERING STOCKHOLDERS SHOULD USE THIS REVISED BLUE LETTER OF TRANSMITTAL AND
THE YELLOW NOTICE OF GUARANTEED DELIVERY PROVIDED WITH THE SUPPLEMENT.
TENDERING STOCKHOLDERS MAY CONTINUE TO USE THE ORIGINAL GREEN LETTER OF
TRANSMITTAL AND GOLD NOTICE OF GUARANTEED DELIVERY THAT WERE PROVIDED WITH THE
OFFER TO PURCHASE. ALTHOUGH SUCH GREEN LETTER OF TRANSMITTAL INDICATES THAT THE
OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 2,
1995, STOCKHOLDERS WILL BE ABLE TO TENDER (OR WITHDRAW) THEIR SHARES PURSUANT
TO THE OFFER UNTIL 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 26, 1995
(OR SUCH LATER DATE TO WHICH THE OFFER MAY BE EXTENDED).
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT
THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. 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. All tendering stockholders, by execution
of this Letter of Transmittal (or a facsimile hereof), waive any right to
receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and any other required
information should be listed on a separate signed schedule attached hereto.
7
<PAGE>
4. PARTIAL TENDERS. (Not Applicable to stockholders who tender by book-entry
transfer) If fewer than all the Shares evidenced by any certificate submitted
are to be tendered, fill in the number of Shares which are to be tendered in
the box entitled "Number of Shares Tendered." In such cases, new certificates
for the Shares that were evidenced by your old certificates, but which were not
tendered by you, will be sent to you, unless otherwise provided in the
appropriate box on this Letter of Transmittal, as soon as practicable after the
Expiration Date. All Shares represented by certificates delivered to the
Depositary will be deemed to have been tendered unless otherwise indicated.
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 certificate(s) without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and proper evidence satisfactory
to the Purchaser of their authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or not purchased are to be issued in the
name of, a person other than the registered holder(s). Signatures on such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered
owner(s) of the certificate(s) listed, the certificate(s) must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appear on the certificate(s). Signatures on
such certificates or stock powers must be guaranteed by an Eligible
Institution, unless the signature is that of an Eligible Institution.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6,
Purchaser will pay any stock transfer taxes with respect to the purchase of
Shares pursuant to the Offer. If, however, payment of the purchase price is to
be made to, or if certificate(s) for Shares not tendered or accepted for
payment are to be registered in the name of, any person other than the
registered owner(s), or if tendered certificate(s) are registered in the name
of any person other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered owner(s)
or such person) payable on account of the transfer to such person will be
deducted from the purchase price unless satisfactory evidence of the payment of
such taxes, or an exemption therefrom, is submitted.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares not tendered or not accepted for
payment are to be issued or returned to, a person other than the signer of this
Letter of Transmittal or if a check and/or such certificates are to be returned
to a person other than the person(s) signing this Letter of Transmittal or to
an address other than that shown in this Letter of Transmittal, the appropriate
boxes on this Letter of Transmittal must be completed. A stockholder who
tenders by book entry transfer may request that Shares not accepted for payment
be credited to such account maintained at a Book-Entry Transfer Facility as
such stockholder may designate under "Special Payment Instructions." If no such
instructions are given, such Shares not accepted for payment will be returned
by crediting the account at the Book-Entry Transfer Facility designated above.
8. WAIVER OF CONDITIONS. The conditions of the Offer (other than the Minimum
Condition) may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion, subject to the terms of the Merger
Agreement (as defined in the Supplement).
8
<PAGE>
9. BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income tax
law, a stockholder whose tendered Shares are accepted for payment is required
to provide the Depositary with such stockholder's correct taxpayer
identification number ("TIN"), generally the stockholder's social security or
federal employer identification number, and certain other information, on
Substitute Form W-9 below. If the Depositary is not provided with the correct
TIN, the Internal Revenue Service may subject the stockholder or other payee to
a $50 penalty. In addition, payments that are made to such stockholder or other
payee with respect to Shares purchased pursuant to the Offer may be subject to
31 percent backup withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the stockholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Depositary. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Depositary is required to withhold 31
percent of any such payments made to the stockholder or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Depositary.
The stockholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
Shares or of the last transferee appearing on the transfers attached to, or
endorsed on, the Shares. If the Shares are in more than one name or are not in
the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests for
assistance may be directed to the Dealer Manager or the Information Agent at
their respective addresses and telephone numbers set forth below. Additional
copies of the Offer to Purchase, this Letter of Transmittal and the Notice of
Guaranteed Delivery may also be obtained from the Information Agent or from
brokers, dealers, commercial banks or trust companies.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Shares has been lost, destroyed or stolen, the stockholder should promptly
notify the Depositary by checking the box immediately preceding special
payment/special delivery instructions and indicating the number of Shares lost.
The stockholder will then be instructed as to the steps that must be taken in
order to replace the certificate. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER OR THE NOTICE OF GUARANTEED
DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY
PRIOR TO THE EXPIRATION DATE.
9
<PAGE>
TO BE COMPLETED BY ALL TENDERING STOCKHOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME:
- --------------------------------------------------------------------------------
SUBSTITUTE
FORM W-9
PART 1--PLEASE ----------------------------
PROVIDE YOUR TIN IN
THE BOX AT RIGHT AND
CERTIFY BY SIGNING
AND DATING BELOW.
DEPARTMENT OF THE TREASURY Social Security number
INTERNAL REVENUE SERVICE
OR
PAYER'S REQUEST FOR ----------------------------
TAXPAYER IDENTIFICATION Employer ID number
NUMBER ("TIN")
- --------------------------------------------------------------------------------
PART 2--CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are currently 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 such Item
(2).
- --------------------------------------------------------------------------------
PART 3--AWAITING
SIGNATURE ______________________________ DATE TIN [_]
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31 PERCENT 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.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office, or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31 percent of all reportable
payments made to me will be withheld but that such amounts will be refunded
to me if I then provide a Taxpayer Identification Number within sixty (60)
days.
Signature: ____________________________________ Date: __________________
10
<PAGE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
listed below. Additional copies of the Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below, and will be furnished promptly at the
Purchaser's expense. You may also contact your broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
(212) 269-5550 (CALL COLLECT)
OR
(800) 758-7358
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4565 (call collect)
June 13, 1995
11
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
MOORCO INTERNATIONAL INC.
This revised YELLOW Notice of Guaranteed Delivery or one substantially
equivalent hereto must be used to accept the Offer (as defined below) if
certificates representing shares of Common Stock, par value $.01 per share (the
"Shares"), of Moorco International Inc., a Delaware corporation (the
"Company"), and the associated Preferred Stock Purchase Rights (the "Rights"
and unless the context otherwise requires, deemed to be included in all
references to the "Shares") issued pursuant to the Rights Agreement, dated as
of November 8, 1994, between the Company and the Bank of New York, a New York
banking corporation, as Rights Agent, are not immediately available or time
will not permit all required documents to reach The Chase Manhattan Bank, N.A.
(the "Depositary") on or prior to the Expiration Date (as defined in Section 1
of the Supplement (as defined below)), or the procedures for delivery by book-
entry transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand or sent by facsimile transmission or mail to
the Depositary. See Section 3 of the Offer to Purchase.
The Company has agreed to effect a redemption of the Rights immediately prior
to the Purchaser's acceptance for payment of Shares pursuant to the Offer and
that the redemption price in respect of the Rights purchased pursuant to the
Offer will be paid to and retained by the Purchaser. By tendering Shares
pursuant to the Offer, the undersigned hereby confirms the undersigned's
agreement that the amount paid by the Company to redeem the Rights attached to
Shares of such stockholder acquired pursuant to the Offer will be paid to and
retained by the Purchaser.
THE DEPOSITARY FOR THE OFFER IS:
The Chase Manhattan Bank, N.A.
(800) 355-2663
By Mail: By Overnight By Hand:
Delivery:
Box 3032 (9:00 a.m.-5:00 p.m.
4 Chase MetroTech c/o Chase Securities New York City Time)
Ctr. Processing Corp 1 Chase Manhattan
Brooklyn, NY 11245 Ft. Lee Executive Plaza
Park Floor 1-B
1 Executive Dr., 6th Nassau and Liberty
floor Streets
Ft. Lee, NJ 07024 New York, NY 10081
By Facsimile Transmission:
(201) 592-4372
Information and Confirm by Telephone:
(201) 592-4370
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO
A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
TENDERING STOCKHOLDERS MAY CONTINUE TO USE THE ORIGINAL GOLD NOTICE OF
GUARANTEED DELIVERY THAT WAS PROVIDED WITH THE OFFER TO PURCHASE.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES.
IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
"ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE
MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER
OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to MII Acquisition Corp., a Delaware
corporation ("Purchaser"), upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated May 5, 1995 (the "Offer to Purchase"), as
amended and supplemented by the Supplement thereto, dated June 13, 1995 (the
"Supplement"), and in the related Letters of Transmittal (which together
constitute the "Offer"), receipt of each of which is hereby acknowledged, the
number of Shares indicated below pursuant to the guaranteed delivery procedures
set forth in Section 3 of the Offer to Purchase.
Number of Shares: Shares Name(s) of Record Holder(s): ________
Certificate No(s). (if available):___ -------------------------------------
- ------------------------------------- Address(es): ________________________
- ------------------------------------- -------------------------------------
If Share(s) will be tendered by -------------------------------------
book-entry transfer, check one box.
Daytime Area Code and Telephone
Number(s):
[_] The Depository Trust Company
[_] Midwest Securities Trust Company -------------------------------------
[_] Philadelphia Depository Trust Signature(s): _______________________
Company
-------------------------------------
-------------------------------------
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program, hereby (1) represents that the
tender of Shares effected hereby complies with Rule 14e-4 under the Securities
and Exchange Act of 1934, as amended, and (2) guarantees to deliver to the
Depositary, at one of its addresses set forth above, the certificates
representing all tendered Shares, in proper form for transfer, or a Book-Entry
Confirmation (as defined in the Offer to Purchase), together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees, or, in the case of book-entry transfer of
Shares, an Agent's Message (as defined in the Offer to Purchase), and any other
documents required by the Letter of Transmittal within five New York Stock
Exchange, Inc. ("NYSE") trading days after the date of execution of this Notice
of Guaranteed Delivery.
<TABLE>
<S> <C>
Name of Firm:______________________________ ___________________________________________
(Authorized Signature)
Address:___________________________________
Title:_____________________________________
___________________________________________
Name:______________________________________
Area Code and
Telephone Number:__________________________ ___________________________________________
(Please type or print)
</TABLE>
Date: _______________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS
NOTICE OF GUARANTEED DELIVERY. CERTIFICATES FOR SHARES
SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
<PAGE>
WORLD FINANCIAL
CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1305
LOGO (212) 236-4565 (CALL
COLLECT)
SUPPLEMENT TO OFFER TO PURCHASE DATED MAY 5, 1995
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
HAS AMENDED ITS OFFER TO PURCHASE TO INCREASE THE PRICE FOR
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MOORCO INTERNATIONAL INC.
TO
$28.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 26, 1995 UNLESS THE OFFER IS
EXTENDED.
June 13, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by MII Acquisition Corp., a Delaware corporation
("Purchaser") and a wholly owned subsidiary of FMC Corporation, a Delaware
corporation ("FMC"), to act as Dealer Manager in connection with the
Purchaser's offer to purchase all the outstanding shares of Common Stock, par
value $.01 per share (the "Shares"), of Moorco International Inc., a Delaware
corporation (the "Company"), and the associated Preferred Stock Purchase Rights
(the "Rights" and, unless the context otherwise requires, deemed to be included
in all references to the "Shares") issued pursuant to the Rights Agreement,
dated as of November 8, 1994 between the Company and the Bank of New York, a
New York banking corporation, as Rights Agent, at a revised purchase price of
$28 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
May 5, 1995 (the "Offer to Purchase"), as amended and supplemented by the
Supplement thereto, dated June 13, 1995 (the "Supplement"), and in the revised
BLUE Letter of Transmittal (which, together with the Offer to Purchase, the
Supplement and the original GREEN Letter of Transmittal, constitutes the
"Offer") enclosed herewith.
The Offer is conditioned upon, among other things there being validly
tendered and not properly withdrawn prior to the expiration of the Offer that
number of Shares which, when aggregated with the 100 Shares currently owned by
FMC, represent at least a majority of the total number of outstanding Shares
determined on a fully diluted basis on the date of purchase. The Offer is also
subject to other terms and conditions. See the Introduction and Sections 1 and
8 of the Supplement.
<PAGE>
LOGO
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 to Offer to Purchase, dated June 13, 1995.
2. Revised BLUE Letter of Transmittal to tender Shares for your use and for
the information of your clients. Facsimile copies of either Letter of
Transmittal may be used to tender Shares.
3. A Letter from the Chairman and the President of the Company together
with Amendment No. 3 to the Solicitation/Recommendation Statement on
Schedule 14D-9.
4. Revised YELLOW Notice of Guaranteed Delivery to be used to accept the
Offer if Share Certificates are not immediately available or if such
certificates and all other required documents cannot be delivered to The
Chase Manhattan Bank, N.A. (the "Depositary") by the Expiration Date or
if the procedure for book-entry transfer cannot be completed by the
Expiration Date.
5. A revised letter which may be sent to your clients for whose accounts
you hold Shares registered in your name or in the name of your nominee,
with space provided for obtaining such clients' instructions with regard
to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of Taxpayer
Identification Number on Substitute Form W-9.
7. A return envelope addressed to The Chase Manhattan Bank, N.A., the
Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS HAVE
BEEN EXTENDED AND WILL NOW EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON
MONDAY, JUNE 26, 1995 UNLESS THE OFFER IS EXTENDED.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal and any required signature guarantees, or an
Agent's Message (as defined in the Offer to Purchase) in connection with a
book-entry delivery of Shares, and other required documents should be sent to
the Depositary, and (ii) either Share 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 maintained at one of the
Book-Entry Transfer Facilities (as described in the Offer to Purchase), all in
accordance with the instructions set forth in the Letters of Transmittal, the
Offer to Purchase and the Supplement.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or other required documents on or prior to the
Expiration Date or to comply with the book-entry transfer procedures on a
timely basis, a tender may be effected by following the guaranteed delivery
procedures specified in Section 3 of the Offer to Purchase.
2
<PAGE>
LOGO
The Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than the Dealer Manager, the Depositary and D.F. King &
Co., Inc. (the "Information Agent") (as described in the Offer to Purchase))
for soliciting tenders of Shares pursuant to the Offer. The Purchaser will,
however, upon request, reimburse you for customary clerical and 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 transfer of Shares to it, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
Merrill Lynch & Co., the Dealer Manager, or the Information Agent, at their
respective addresses and telephone numbers set forth on the back cover of the
Supplement. Additional copies of the enclosed materials may be obtained from
the Information Agent.
Very truly yours,
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE PARENT, THE DEALER MANAGER,
THE COMPANY, THE DEPOSITARY OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY
OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY
DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE>
SUPPLEMENT TO OFFER TO PURCHASE DATED MAY 5, 1995
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
HAS AMENDED ITS OFFER TO PURCHASE TO INCREASE THE PRICE FOR
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MOORCO INTERNATIONAL INC.
TO
$28.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT 12:00
MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, JUNE 26, 1995, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Supplement, dated June 13, 1995 (the
"Supplement"), to the Offer to Purchase, dated May 5, 1995 (the "Offer to
Purchase"), and the revised BLUE Letter of Transmittal (which, together with
the Offer to Purchase, the Supplement and the original GREEN Letter of
Transmittal, constitute the "Offer"), relating to an offer by MII Acquisition
Corp., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of
FMC Corporation, a Delaware corporation ("FMC"), to purchase all of the
outstanding shares of Common Stock, $.01 par value per share (the "Shares"), of
Moorco International Inc., a Delaware corporation (the "Company") and the
associated Preferred Stock Purchase Rights (the "Rights" and, unless the
context otherwise requires, deemed to be included in all references to the
"Shares"), issued pursuant to the Rights Agreement, dated as of November 8,
1994, between the Company and the Bank of New York, a New York banking
corporation, as Rights Agent, at a revised purchase price of $28 per Share, net
to the seller in cash without interest thereon, upon the terms and subject to
the conditions set forth in the Offer. 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 such Shares held by us for your account, pursuant to the
terms and subject to the conditions set forth in the Offer.
Your attention is directed to the following:
1. The tender price is $28.00 per Share, net to the seller in cash without
interest thereon.
2. The Offer is made for all of the outstanding Shares.
3. The Offer and withdrawal rights have been extended and will now expire
at 12:00 midnight, New York City time, on June 26, 1995, unless the
Offer is extended.
4. The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the expiration of the Offer
that number of Shares which, when aggregated with the 100 Shares
currently owned by FMC, represents at least a majority of the total
number of outstanding Shares determined on a fully diluted basis on the
date of purchase. The Offer is also subject to other terms and
conditions. See the Introduction and Sections 1 and 8 of the Supplement.
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 pursuant
to the Offer.
<PAGE>
The Offer is being made solely by the Offer to Purchase, the Supplement 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 any 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 Manager
or one or more registered brokers or dealers that are licensed under the laws
of such jurisdiction.
If you wish to have us tender any or all of the Shares held by us for your
account, please instruct us by completing, executing and returning to us the
instruction form contained in this letter. If you authorize a tender of your
Shares, all such Shares will be tendered unless otherwise specified in such
instruction form. 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 SUPPLEMENT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MOORCO INTERNATIONAL INC.
The undersigned acknowledge(s) receipt of your letter enclosing the
Supplement dated June 13, 1995 (the "Supplement") to the Offer to Purchase
dated May 5, 1995 and the revised BLUE Letter of Transmittal (which, together
with the Offer to Purchase, the Supplement and the original GREEN Letter of
Transmittal, constitute the "Offer") pursuant to an offer by MII Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of FMC Corporation,
a Delaware corporation, to purchase all outstanding shares of Common Stock,
$.01 par value per share (the "Shares"), of Moorco International Inc., a
Delaware corporation, and the associated Rights, which, unless the context
otherwise requires, are deemed to be included in all references to the Shares.
This will instruct you to tender the number of Shares indicated below (or, if
no number is indicated below, all Shares) which are held by you for the account
of the undersigned, upon the terms and subject to the conditions set forth in
the Offer.
Number of Shares to be Tendered* SIGN HERE
___________________________________
Shares
___________________________________
Signature(s)
Dated , 1995
___________________________________
Please print name(s)
___________________________________
___________________________________
Address
___________________________________
___________________________________
Area Code and Telephone Number
___________________________________
Tax Identification or Social
Security Number
- --------
* Unless otherwise indicated, it will be assumed that all of your Shares held
by us for your account are to be tendered.
3
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer is made solely by the Offer to Purchase dated
May 5, 1995 (the "Offer to Purchase"), as amended and supplemented by the
Supplement to the Offer to Purchase dated June 13, 1995 (the "Supplement"), and
the related Letters of Transmittal and is being made to all holders of Shares.
The Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to a state statute. If
the Purchaser becomes aware of any state where the making of the Offer is
prohibited, the Purchaser will make a good faith effort to comply with any such
statute or seek to have such statute declared inapplicable to the Offer. If,
after such good faith effort, the Purchaser cannot comply with any applicable
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 those jurisdictions whose
securities, blue sky or other laws require the Offer to be made by a licensed
broker or dealer, the Offer shall be deemed to be made on behalf of the
Purchaser by Merrill Lynch, Pierce, Fenner & Smith Incorporated or one or more
registered brokers or dealers licensed under the laws of such jurisdictions.
MII Acquisition Corp.
a wholly-owned subsidiary of
FMC Corporation
Has Amended its Offer to Increase
the Cash Price Price for
All Outstanding Shares of Common Stock
(including the Associated Preferred Stock Purchase Rights)
of
Moorco International Inc.
to
$28.00 Net Per Share
MII Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of FMC Corporation, a Delaware corporation ("FMC"), is
now offering to purchase all of the outstanding shares of common stock, par
value $.01 per share (the "Shares"), of Moorco International Inc., a Delaware
corporation (the "Company"), and the associated preferred stock purchase rights
(the "Rights" and, unless the context otherwise requires, deemed to be included
in all references to the "Shares"), at a purchase price of $28.00 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 May 5, 1995 (the "Offer
to Purchase"), as amended and supplemented by the Supplement thereto, dated June
13, 1995 (the "Supplement"), and in the related original or revised Letters of
Transmittal (which together with the Offer to Purchase and the Supplement
constitute the "Offer"). Shares previously tendered and not properly withdrawn
constitute valid tenders for purposes of the Offer.
<PAGE>
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 26, 1995, UNLESS THE OFFER
IS EXTENDED.
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the expiration of the Offer that
number of Shares which, when aggregated with the 100 Shares currently owned by
FMC, represent at least a majority of the total number of outstanding Shares on
a fully diluted basis on the date of purchase. The Offer is also subject to
other terms and conditions. See the Introduction and Section 8 of the
Supplement.
The Offer is being amended and supplemented pursuant to an Agreement and
Plan of Merger, dated as of June 11, 1995 (the "Merger Agreement"), among FMC,
the Purchaser and the Company which provides for, among other things, (i) an
increase in the purchase price per Share to be paid pursuant to the Offer from
$20.00 per Share to $28.00 per Share, (ii) the amendment of conditions to the
Offer as set forth in their entirety in Section 8 of the Supplement, (iii) the
extension of the Offer to Monday, June 26, 1995 and (iv) the merger of the
Purchaser with the Company (the "Merger") following the consummation of the
Offer. In the Merger, each Share (other than shares of common stock of the
Company held in the treasury of the Company, Shares owned by FMC, the Purchaser
or any other direct or indirect subsidiary of FMC or of the Company and
Dissenting Shares (as such term is defined in the Merger Agreement)) shall be
cancelled, extinguished and converted into the right to receive $28.00 per Share
in cash without interest thereon.
The Board of Directors of the Company has unanimously determined that the
Offer and the Merger are fair to, and in the best interests of, the stockholders
of the Company, has approved the Offer and the Merger and recommends that
stockholders accept the Offer and tender their Shares.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment (and thereby purchased) Shares validly tendered and not properly
withdrawn as, if and when the Purchaser gives oral or written notice to The
Chase Manhattan Bank N.A. (the "Depositary") of the Purchaser's acceptance of
such Shares for payment pursuant to the Offer. In all cases, upon the terms and
subject to the conditions of the Offer, payment for Shares accepted for payment
pursuant to the Offer will be made by deposit of the purchase price therefor
with the Depositary, which will act as agent for tendering stockholders for the
purpose of receiving payments from the Purchaser and transmitting such payments
to stockholders whose Shares have been accepted for payment. Under no
circumstance will interest on the purchase price for Shares be paid, regardless
of any delay in making such payment. In all cases, payment for Shares tendered
and accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (i) certificates representing shares ("Share
Certificates") or timely confirmation of a book-entry transfer of such Shares
into the Depositary's account at The Depository Trust Company, the Midwest
Securities Trust Company or the Philadelphia Depository Trust Company (each a
"Book-Entry Transfer Facility") pursuant to the
-2-
<PAGE>
procedures set forth in Section 2 of the Supplement and Section 3 of the Offer
to Purchase; (ii) the Letter of Transmittal delivered with the Offer to Purchase
or the revised Letter of Transmittal delivered with the Supplement (or a
facsimile of either) properly completed and duly executed, with any required
signature guarantees, or an Agent's Message (as defined in Section 2 of the
Offer to Purchase) in connection with a book-entry transfer, and (iii) any other
documents required by such Letter of Transmittal.
The Purchaser expressly reserves the right, in its sole discretion subject
to the terms of the Merger Agreement, at any time and from time to time, to
extend the period during which the Offer is open, including upon the occurrence
of any of the events specified in Section 8 of the Supplement, by giving
written notice of such extension to the Depositary. Any such extension will be
followed as promptly as practicable by public announcement to be made no later
than 9:00 A.M., New York City time, on the next business day after the
previously scheduled Expiration Date.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Monday, June 26, 1995, unless and until the Purchaser, in its sole discretion
subject to the terms of the Merger Agreement, shall have further extended the
period during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Offer, as so further extended
by the Purchaser, shall expire.
Except as otherwise provided in Section 4 of the Offer to Purchase, tenders
of Shares made pursuant to the Offer are irrevocable. Shares tendered pursuant
to the Offer may be withdrawn at any time on or prior to the Expiration Date
and, unless theretofore accepted for payment by the Purchaser pursuant to the
Offer, may also be withdrawn at any time after July 5, 1995. In order for a
withdrawal to be effective, a written or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses set
forth on the back cover of the Supplement and the Offer to Purchase. Any such
notice of withdrawal must specify the name of the person who tendered the Shares
to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder, if different from that of the person who tendered such
Shares. If Share Certificates to be withdrawn have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and the signatures on the notice of withdrawal must be guaranteed
by an Eligible Institution (as defined in Section 3 of the Offer to Purchase),
except in the case of Shares tendered for the account of any Eligible
Institution. If Shares have been tendered pursuant to the procedure for book-
entry transfer as set forth in Section 2 of the Supplement and Section 3 of the
Offer to Purchase, the notice of withdrawal must specify the name and number of
the account at the appropriate Book-Entry Transfer Facility to be credited with
the withdrawn Shares, in which case a notice of withdrawal will be effective if
delivered to the Depositary by any method of delivery described in the second
sentence of this paragraph. Withdrawals of Shares may not be rescinded. All
questions as to the term and validity (including time of receipt) of any notice
of withdrawal will be determined by the Purchaser, in its sole discretion, whose
determination will be final and binding.
-3-
<PAGE>
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is contained in the Supplement and the Offer to
Purchase and is incorporated herein by reference.
The Supplement, the revised Letter of Transmittal and other relevant
materials will be mailed to record holders of Shares and will be furnished to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the stockholder list or, if
applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of Shares.
The Offer to Purchase, the Supplement and the related Letters of
Transmittal contain important information which should be read before any
decision is made with respect to the Offer.
Questions and requests for assistance may be directed to the Dealer Manager
or the Information Agent as set forth below. Requests for copies of the Offer to
Purchase, the Supplement and the related Letters of Transmittal and all other
tender offer materials may be directed to the Information Agent, and copies will
be furnished promptly at the Purchaser's expense. The Purchaser will not pay
any fees or commissions to any broker or dealer or any other person (other than
the Dealer Manager and the Information Agent) for soliciting tenders of Shares
pursuant to the Offer.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212) 269-5550
All Others Call Toll Free (800) 758-7358
The Dealer Manager for the Offer is:
Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4565 (Call Collect)
June 13, 1995
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<PAGE>
[EXECUTION COPY]
AMENDMENT NO. 1 TO 5-YEAR CREDIT AGREEMENT
AMENDMENT dated as of May 15, 1995 among FMC CORPORATION (the "Company), the
LENDERS listed on the signature pages hereof (the "Lenders") and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto and FMC Food Machinery & Chemical Holding
Company, B.V. have heretofore entered into a 5-Year Credit Agreement dated as of
December 16, 1994 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the use of proceeds covenant set
forth in the Agreement:
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the Agreement as amended
hereby.
SECTION 2. Amendment of the Use of Proceeds Covenant of the Agreement.
Section 5.12 of the Agreement is amended to read in its entirety as follows:
"SECTION 5.12. Use of Proceeds. The proceeds of the Borrowings under this
Agreement will be used by the Borrowers for general corporate purposes. None
of such proceeds will be used, directly or indirectly, in violation of
Regulation G, T, X or U of the Board of Governors of the Federal Reserve
System."
<PAGE>
SECTION 3. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 4. Counterparts; Effectiveness. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective as of the date hereof when the Agent shall have
received duly executed counterparts hereof signed by the Company and the
Required Lenders (or, in the case of any party as to which an executed
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party).
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
FMC CORPORATION
By______________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________________
Title:
BANK OF AMERICA ILLINOIS
By______________________________
Title:
BANK OF MONTREAL
By______________________________
Title:
THE BANK OF NEW YORK
By______________________________
Title:
<PAGE>
[EXECUTION COPY]
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
AMENDMENT dated as of May 15, 1995 among FMC CORPORATION (the "Company"),
the LENDERS listed on the signature pages hereof (the "Lenders") and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto and FMC Food Machinery & Chemical Holding
Company, B.V. have heretofore entered into a 364-Day Credit Agreement dated as
of December 16, 1994 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the use of proceeds covenant
set forth in the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the Agreement as amended
hereby.
SECTION 2. Amendment of the Use of Proceeds Covenant of the Agreement.
Section 5.12 of the Agreement is amended to read in its entirety as follows:
"SECTION 5.12. Use of Proceeds. The proceeds of the Borrowings under this
Agreement will be used by the Borrowers for general corporate purposes. None
of such proceeds will be used, directly or indirectly, in violation of
Regulation G, T, X or U of the Board of Governors of the Federal Reserve
System."
<PAGE>
SECTION 3. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 4. Counterparts; Effectiveness. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective as of the date hereof when the Agent shall have
received duly executed counterparts hereof signed by the Company and the
Required Lenders (or, in the case of any party as to which an executed
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party).
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
FMC CORPORATION
By______________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________________
Title:
BANK OF AMERICA ILLINOIS
By______________________________
Title:
BANK OF MONTREAL
By______________________________
Title:
THE BANK OF NEW YORK
By______________________________
Title:
