SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
AMENDMENT NO. 3
TO
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
__________________
Clark Equipment Company
(Name of Subject Company)
CEC Acquisition Corp.
Ingersoll-Rand Company
(Bidder)
Common Stock, $7.50 par value per share
(Title of Class of Securities)
18139610
(CUSIP Number of Class of Securities)
Patricia Nachtigal, Esq.
Vice President and General Counsel
Ingersoll-Rand Company
World Headquarters
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Telephone: (201) 573-0123
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
Copy to:
Robert L. Friedman, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Telephone: (212) 455-2000
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
$1,479,099,724.00 $295,820.00
* Based on the offer to purchase all of the outstanding shares of Common
Stock of the Subject Company and the associated Preferred Stock Purchase
Rights at $86.00 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. $263,963.00 was previously paid in
connection with the initial filing of the Schedule 14D-1 on April 3, 1995.
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:
Form or Registration No.:
Filing Party:
Date Filed:
<PAGE>
2
This Amendment No. 3 amends and supplements the Tender
Offer Statement on Schedule 14D-1 filed on April 3, 1995 (as
amended, the "Schedule 14D-1") relating to the offer by CEC
Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Ingersoll-Rand Company, a New Jersey
corporation (the "Parent"), to purchase all of the outstanding
shares of Common Stock, $7.50 par value per share (the "Shares"),
of Clark Equipment Company, a Delaware corporation (the
"Company"), and the associated Preferred Stock Purchase Rights
(the "Rights") issued pursuant to the Rights Agreement dated as
of March 10, 1987, as amended and restated as of August 14, 1990,
between the Company and Harris Trust and Savings Bank, as Rights
Agent, at an amended purchase price of $86.00 per Share (and
associated Right), 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 April 3, 1995, as amended and
supplemented by the Supplement thereto dated April 12, 1995 (the
"Supplement"), and in the related Letter of Transmittal (which
together constitute the "Offer"). Unless otherwise indicated,
all capitalized terms used but not defined herein shall have the
meanings assigned to them in the Schedule 14D-1.
Item 1. Security and Subject Company.
Item 1 is hereby amended and supplemented as follows:
Paragraph 1(b) -- Reference is hereby made to the
information set forth in the Introduction of the Supplement,
which is incorporated herein by reference in its entirety.
Paragraph 1(c) -- Reference is hereby made to the
information set forth in Section 2 ("Price Range of Shares;
Dividends") of the Supplement which is incorporated herein by
reference in its entirety.
Item 3. Past Contacts, Transactions or Negotiations with the
Subject Company.
Item 3 is hereby amended and supplemented as follows:
Paragraphs 3(a) and 3(b) -- Reference is hereby made to the
information set forth in the Introduction, Section 3 ("Background
of the Amended Offer; Contacts with the Company"), Section 4
("Plans for the Company"), Section 5 ("Merger Agreement") and
Section 6 ("Certain Conditions of the Offer") of the Supplement,
which is incorporated herein by reference in its entirety.
Item 4. Source and Amount of Funds or Other Consideration.
Item 4 is hereby amended and supplemented as follows:
Paragraphs 4(a) and (b) -- Reference is hereby made to the
information set forth in Section 7 ("Source and Amount of Funds")
of the Supplement, which is incorporated herein by reference in
its entirety.
Item 5. Purpose of the Tender Offer and Plans or Proposals of
the Bidder.
Item 5 is amended and supplemented as follows:
Reference is hereby made to the information set forth in the
Introduction, Section 1 ("Amended Terms of the Offer; Expiration
Date"), Section 3 ("Background of the Amended Offer; Contacts
with the Company"), Section 4 ("Plans for the Company"), and
Section 5 ("Merger Agreement") of the Supplement, which is
incorporated herein by reference in its entirety.
<PAGE>
3
Item 10. Additional Information.
Item 10 is hereby amended and supplemented as follows:
Paragraphs 10 (b), (c) and (e) -- Reference is hereby made
to the information set forth in Section 3 ("Background of the
Amended Offer; Contacts with the Company"), Section 5 ("Merger
Agreement") and Section 8 ("Certain Legal Matters and Regulatory
Approvals") of the Supplement, which is incorporated herein by
reference in its entirety.
Paragraph 10(f) -- Reference is hereby made to the
information set forth in the Supplement, a copy of which is
attached as Exhibit 11(a)(11) hereto and which is incorporated
herein by reference in its entirety.
Item 11. Material to be Filed as Exhibits.
11(a)(11) Supplement to the Offer to Purchase dated
April 12, 1995.
11(a)(12) Letter of Transmittal.
11(a)(13) Notice of Guaranteed Delivery.
11(a)(14) Letter from the Dealer Manager to Brokers,
Dealers, Commercial Banks, Trust Companies
and Nominees.
11(a)(15) Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies
and Nominees.
11(a)(16) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
11(a)(17) Summary Advertisement as published on April
12, 1995.
11(b)(2) Supplemental Commitment Letter dated April
10, 1995 to the Parent from The Chase
Manhattan Bank (National Association).
11(g)(1) Notice of Dismissal in Clark Equipment
Company v. Ingersoll-Rand Company, U.S.
District Court for the Southern District of
New York, filed on April 11, 1995.
<PAGE>
4
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.
INGERSOLL-RAND COMPANY
By: /s/ James E. Perrella
---------------------------------
Name: James E. Perrella
Title: Chairman, President and
Chief Executive Officer
CEC ACQUISITION CORP.
By: /s/ Thomas F. McBride
---------------------------------
Name: Thomas F. McBride
Title: President
Date: April 12, 1995
<PAGE>
EXHIBIT INDEX
Exhibit Page
No. Description No.
------- ----------- ----
11(a)(11) Supplement to the Offer to Purchase dated April
12, 1995 . . . . . . . . . . . . . . . . . . . .
11(a)(12) Letter of Transmittal . . . . . . . . . . . . . .
11(a)(13) Notice of Guaranteed Delivery . . . . . . . . . .
11(a)(14) Letter from the Dealer Manager to Brokers,
Dealers, Commercial Banks, Trust Companies and
Nominees . . . . . . . . . . . . . . . . . . . .
11(a)(15) Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees .
11(a)(16) Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 . .
11(a)(17) Summary Advertisement as published on April 12,
1995 . . . . . . . . . . . . . . . . . . . . . .
11(b)(2)) Supplemental Commitment Letter dated April 10,
1995 to the Parent from The Chase Manhattan Bank
(National Association) . . . . . . . . . . . . .
11(g)(1) Notice of Dismissal in Clark Equipment Company v.
Ingersoll-Rand Company, U.S. District Court for
the Southern District of New York, filed on April
11, 1995.
SUPPLEMENT TO OFFER TO PURCHASE
CEC ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INGERSOLL-RAND COMPANY
HAS AMENDED ITS TENDER OFFER TO INCREASE
THE CASH PURCHASE PRICE FOR
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLARK EQUIPMENT COMPANY
TO
$86.00 NET PER SHARE
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY,
MAY 5, 1995, UNLESS FURTHER EXTENDED.
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 PURSUANT
TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF SHARES OF COMMON STOCK OF THE COMPANY WHICH, TOGETHER WITH ANY SHARES
OWNED BY THE PARENT AND THE PURCHASER, REPRESENTS A MAJORITY OF THE TOTAL VOTING
POWER OF ALL SHARES OF CAPITAL STOCK OF THE COMPANY OUTSTANDING ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE. THE OFFER IS ALSO SUBJECT TO OTHER TERMS
AND CONDITIONS CONTAINED HEREIN. SEE THE INTRODUCTION AND SECTION 6 OF THIS
SUPPLEMENT.
(Continued on next page)
-------------------
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
April 12, 1995
<PAGE>
(Continued from previous page)
IMPORTANT
ON APRIL 9, 1995, THE PURCHASER, THE PARENT AND THE COMPANY (EACH AS DEFINED
HEREIN) ENTERED INTO A MERGER AGREEMENT (AS DEFINED HEREIN) WHICH CONTAINS THE
TERMS AND CONDITIONS DESCRIBED IN SECTION 5 OF THIS SUPPLEMENT.
Any stockholder desiring to tender all or any portion of such stockholder's
shares of Common Stock, $7.50 par value per share (the "Shares"), and the
associated Preferred Stock Purchase Rights issued by the Company (the "Rights";
unless the context requires otherwise all references herein to "Shares" shall be
deemed to refer also to the associated Rights), should either (1) complete and
sign a Letter of Transmittal (or a facsimile thereof) in accordance with the
instructions in such Letter of Transmittal, mail or deliver such Letter of
Transmittal (or such facsimile) and any other required documents to the
Depositary (as defined herein), and either deliver the certificates representing
the tendered Shares and any other required documents (including certificates for
Rights, if necessary) to the Depositary or tender such Shares pursuant to the
procedure for book-entry transfer set forth in Section 3 of the Offer to
Purchase or (2) request such stockholder's broker, dealer, commercial bank,
trust company or other nominee to effect the transaction for such stockholder.
Stockholders having Shares registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if they desire to tender
Shares so registered.
A stockholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available, or who cannot comply
with the procedure 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 Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Dealer Manager") or to Georgeson &
Company Inc. (the "Information Agent") 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 related Letter of
Transmittal and the related Notice of Guaranteed Delivery may also be obtained
from the Information Agent or from brokers, dealers, commercial banks or trust
companies.
<PAGE>
To: The Stockholders of
CLARK EQUIPMENT COMPANY
INTRODUCTION
The following information amends and supplements the Offer to Purchase dated
April 3, 1995 (the "Offer to Purchase") of CEC Acquisition Corp., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Ingersoll-Rand
Company, a New Jersey corporation (the "Parent"). Pursuant to this Supplement,
the Purchaser is now offering to purchase all of the outstanding shares of
Common Stock, $7.50 par value per share (the "Shares"), of Clark Equipment
Company, a Delaware corporation (the "Company"), and the associated Preferred
Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, as
amended (the "Rights Agreement"), between the Company and the Rights Agent, at a
purchase price of $86.00 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
Letter of Transmittal (which together constitute the "Offer"). Unless the
context requires otherwise, terms not defined herein have the meanings ascribed
to them in the Offer to Purchase and all references herein to "Shares" shall be
deemed to refer also to the associated Rights.
Pursuant to the Merger Agreement (as defined below), the Company has
represented and warranted to the Parent and the Purchaser that the Company has
taken all necessary action so that none of the execution of the Merger
Agreement, the making of the Offer, the acquisition of Shares pursuant to the
Offer or the consummation of the Merger will (a) cause the Rights to become
exercisable, (b) cause the Parent, the Purchaser or any of their affiliates to
become an Acquiring Person (as such term is defined in the Rights Agreement) or
(c) give rise to a Distribution Date or a Triggering Event (as each such term is
defined in the Rights Agreement).
Procedures for tendering Shares are set forth in Section 3 of the Offer to
Purchase. Tendering stockholders may continue to use the original (green) Letter
of Transmittal and the original (gold) Notice of Guaranteed Delivery previously
circulated with the Offer to Purchase, or the revised (blue) Letter of
Transmittal and the revised (green) Notice of Guaranteed Delivery circulated
with this Supplement. While the Letter of Transmittal previously circulated with
the Offer to Purchase refers only to the Offer to Purchase, stockholders using
such document to tender their Shares will nevertheless receive $86.00 per Share
for each Share validly tendered and not properly withdrawn and accepted for
payment pursuant to the Offer, subject to the conditions of the Offer. A tender
of Shares will also constitute a tender of Rights.
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 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 $86.00 PER SHARE. SEE SECTION 4 OF
THE OFFER TO PURCHASE FOR THE PROCEDURES FOR WITHDRAWING SHARES TENDERED
PURSUANT TO THE OFFER.
Except as otherwise set forth in this Supplement and in the revised Letter
of Transmittal, the terms and conditions previously 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.
THE OFFER IS NO LONGER SUBJECT TO THE SUPERMAJORITY CHARTER CONDITION, THE
RIGHTS CONDITION OR THE DELAWARE TAKEOVER STATUTE CONDITION INCLUDED IN THE
OFFER TO PURCHASE. THE OFFER IS NOW CONDITIONED UPON, AMONG OTHER THINGS, THERE
BEING VALIDLY TENDERED ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED BELOW) AND
NOT PROPERLY WITHDRAWN A NUMBER OF SHARES WHICH, TOGETHER WITH THE SHARES OWNED
BY THE
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<PAGE>
PARENT AND THE PURCHASER, REPRESENTS A MAJORITY OF THE TOTAL VOTING POWER OF ALL
SHARES OF CAPITAL STOCK OF THE COMPANY OUTSTANDING ON A FULLY DILUTED BASIS ON
THE DATE OF PURCHASE (DEFINED BELOW AS THE MINIMUM CONDITION). THE OFFER REMAINS
SUBJECT TO CERTAIN OTHER TERMS AND CONDITIONS CONTAINED HEREIN IN ADDITION TO
THE MINIMUM CONDITION. SEE SECTION 6 OF THIS SUPPLEMENT.
The Parent, the Purchaser and the Company have entered into an Agreement and
Plan of Merger, dated as of April 9, 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 $77.00 per Share to $86.00 per Share, net to the
seller in cash without interest thereon, (ii) the amendment and restatement of
certain conditions to the Offer as set forth in their entirety in Section 6 of
this Supplement, (iii) the extension of the Offer to Friday, May 5, 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 held in the treasury of the Company, Shares owned by the Parent,
the Purchaser or any other direct or indirect subsidiary of the Parent 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 $86.00
per Share in cash without interest thereon, less any applicable withholding
taxes. See Section 5 of this Supplement.
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.
CS First Boston Corporation ("CS First Boston") has delivered to the Board
of Directors of the Company its written opinion, dated April 9, 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 the
Parent and the Purchaser, in the Offer and the Merger is fair to such holders
from a financial point of view.
Section 203 of the Delaware General Corporation Law (the "DGCL"), the
supermajority stockholder vote specified in the Supermajority Charter Provision
(as defined in the Offer to Purchase) and the Rights are no longer applicable to
the Merger because the Board of Directors of the Company has approved the Merger
and the Merger Agreement and taken other actions to render Section 203 of the
DGCL, the Supermajority Charter Provision and the Rights inapplicable to the
Offer and the Merger. Accordingly, the Delaware Takeover Statute Condition, the
Supermajority Charter Condition and the Rights Condition described in the Offer
to Purchase are all no longer applicable to the Offer.
Based on the representations and warranties of the Company contained in the
Merger Agreement, as of April 7, 1995, there were 17,101,396 Shares outstanding
and options covering a total of 97,438 shares of common stock were reserved for
issuance under the Company's various stock option plans. The Parent currently
beneficially owns an aggregate of 274,200 Shares, representing approximately
1.6% of the Shares outstanding based on the number of Shares reported by the
Company as outstanding at April 7, 1995. See Section 8 of the Offer to Purchase.
Based on this information, the Minimum Condition will be satisfied if at least
8,325,218 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.
THE OFFER TO PURCHASE, THIS SUPPLEMENT AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
2
<PAGE>
1. AMENDED TERMS OF THE OFFER; EXPIRATION DATE. Pursuant to the Merger
Agreement, the price per Share to be paid pursuant to the Offer has been
increased from $77.00 per Share to $86.00 per Share, net to the seller in cash
without interest thereon, upon the terms and subject to the conditions of the
Offer. All stockholders whose Shares are validly tendered and not properly
withdrawn and accepted for payment pursuant to the Offer (including Shares
tendered prior to the date of this Supplement) will receive the increased price.
Pursuant to the Merger Agreement, the Offer has been extended. The Offer
will expire at 12:00 Midnight, New York City time, on Friday, May 5, 1995,
unless and until the Purchaser, in its sole discretion subject to the provisions
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 extended by the Purchaser, shall expire.
See Section 5 of this Supplement for a description of the provisions of the
Merger Agreement regarding extensions of the Offer by the Purchaser.
The Offer is conditioned upon, among other things, satisfaction of each of
the conditions described above in the Introduction and in Section 6 of this
Supplement (the "Tender Offer Conditions"). The Purchaser reserves the right
(but shall not be obligated), subject to the provisions of the Merger Agreement,
to waive any or all of such conditions (other than the Minimum Condition).
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Supplement, the Offer to Purchase, the revised (blue)
Letter of Transmittal and other relevant materials will be mailed to record
holders of Shares whose names appear on the Company's stockholder list and will
be furnished to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the Company's
stockholder list or, if applicable, who are listed as participants in a clearing
agency's security position listing for subsequent transmittal to beneficial
owners of Shares.
2. PRICE RANGE OF SHARES; DIVIDENDS. The high and low sales prices per Share
on the NYSE reported by the Dow Jones News Service during the second quarter
(through April 11, 1995) of the year ending December 31, 1995 were $85 5/8 and
$82 1/4, respectively. On April 7, 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 $84 1/8.
STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
3. BACKGROUND OF THE AMENDED OFFER; CONTACTS WITH THE COMPANY. During the
week of April 3, 1995, the respective financial advisors to the Parent and the
Company conducted a dialogue to discuss the possibility of a modified Offer on
terms, including an increased price per Share, which the Company's management
might be willing to recommend to the Company's Board of Directors and pursuant
to which the Company might be willing to enter into a merger agreement with the
Parent. These discussions were concluded on April 6, 1995 with the two financial
advisors each recommending to their respective clients that it might be
productive for the Chairmen of the Parent and the Company to meet to see if they
could reach agreement on the terms of a transaction which each Chairman would be
willing to recommend to his company's Board of Directors.
In the early evening on April 7, 1995, James E. Perrella, Chairman,
President and Chief Executive Officer of the Parent, met with Leo J. McKernan,
Chairman, President and Chief Executive Officer of the Company, in New York
City. At that meeting the two Chairmen reached agreement on the principal terms
of a merger between the Company and the Parent. Starting that same evening,
other representatives and advisors of the Parent and the Company met separately
to conduct negotiations regarding the other terms of the Merger Agreement. These
discussions continued on Saturday, April 8,
3
<PAGE>
1995 and Sunday, April 9, 1995 and on Sunday, April 9, 1995 an agreement was
reached between the representatives of the two companies on all of the terms of
the Merger Agreement.
On April 9, 1995, the Boards of Directors of the Parent and the Purchaser
approved the Merger Agreement and the Company's Board of Directors approved the
Merger Agreement and took other action to render the Rights, Section 203 of the
DGCL and the Supermajority Charter Provision inapplicable to the Offer and the
Merger. Later that afternoon, the Merger Agreement was executed and the Parent
and the Company issued the following joint press release:
Woodcliff Lake, N.J. and South Bend, Indiana (April 9,
1995)--Ingersoll-Rand Company and Clark Equipment Company jointly announced
today that they have entered into a definitive merger agreement under which
Ingersoll-Rand will acquire Clark for $86.00 per share in cash. The Boards
of Directors of both companies have unanimously approved the agreement.
Ingersoll-Rand's pending tender offer is being amended to increase the
offering price to $86.00 per share and extend the expiration date to
midnight New York time on Friday, May 5, 1995.
"We're delighted to add Clark's strong businesses and fine people to our
own," said James E. Perrella, Chairman, President and Chief Executive
Officer of Ingersoll-Rand. "This is a great fit. Clark's businesses
complement Ingersoll-Rand's and, like ours, are well-managed leaders in
their sectors."
Clark's Chairman, President and Chief Executive Officer, Leo J.
McKernan, said "This merger delivers fair value to our shareholders and also
provides our employees with excellent opportunities within the framework of
a fine company like Ingersoll-Rand."
Consummation of the merger is subject to customary terms and conditions,
including regulatory approvals.
On April 9, 1995, the Company postponed indefinitely its annual meeting of
stockholders scheduled for May 9, 1995; on April 10, 1995, the Parent withdrew
its April 3, 1995 nomination of director candidates for election at the annual
meeting; and on April 11, 1995, the Company filed with the court in the
Antitrust Litigation a notice of dismissal of all claims against the Parent (all
pursuant to the Merger Agreement--see Sections 5 and 8 of this Supplement).
During the discussions between the financial advisors to the Parent and the
Company during the week of April 3, 1995, the Parent's financial advisor made
inquiries of the Company's financial advisor concerning the Company's
expectations as to its operating performance in 1995 and 1996. Although the
Company's financial advisor gave the Parent's financial advisor no
specific information in that regard, following the conversations between the
financial advisors regarding publicly available analysts' estimates of the
Company's 1995 and 1996 earnings, the Parent's financial advisor concluded,
based upon, among other things, the Company's financial advisor's comments on
such analysts' estimates (which comments the Company authorized), that the
Company currently expects its consolidated net income for this year and next
to fall within the following approximate ranges: 1995--between $95 and $105
million; 1996--between $110 and $120 million. However, prior to the date of
this Supplement, neither the Parent nor its financial advisor has received any
other information from the Company concerning its future financial performance.
Any forecasts of future net income are inherently unreliable due to the
numerous uncertainties associated with forecasts and the various assumptions on
which they must necessarily be based. But because the expected consolidated net
income figures referred to above with respect to the Company (the "Projections")
were not prepared by management of the Company or by the Company's financial
advisor, such data is necessarily far more speculative and far less reliable
than if it
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<PAGE>
had actually been prepared by the management of the Company or by the Company's
financial advisor. The Projections are set forth herein solely because they
were developed by the Parent's financial advisor on the basis of limited
information regarding the Company's expected net income in 1995 and 1996
indicated by the Company's financial advisor.
In light of the uncertainties inherent in forecasts of any kind, and
particularly in view of the manner in which the Projections were developed by
the Parent's financial advisor as noted above, the inclusion of the Projections
should not be regarded as a representation by the Parent, the Purchaser, the
Company or any other person that such Projections will be achieved. HOLDERS OF
SHARES ARE THEREFORE CAUTIONED NOT TO PLACE ANY RELIANCE ON THE PROJECTIONS.
The Projections were not developed with a view to public disclosure or
compliance with the published guidelines of the Securities and Exchange
Commission (the "Commission") regarding forecasts, nor were they prepared in
accordance with the guidelines established by the American Institute of
Certified Public Accountants for preparation and presentation of financial
forecasts.
4. PLANS FOR THE COMPANY. Pursuant to the Merger Agreement, the Parent, the
Purchaser and the Company have agreed, among other things, 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 5 of this Supplement.
5. MERGER AGREEMENT. The following is a summary of the Merger Agreement, a
copy of which is an exhibit to Amendment No. 2, filed by the Parent and the
Purchaser with the Commission on April 10, 1995, to the Tender Offer Statement
on Schedule 14D-1 of the Purchaser and the Parent filed with the Commission in
connection with the Offer (the "Schedule 14D-1"). Such summary is qualified in
its entirety by reference to the Merger Agreement. Terms not defined herein have
the meaning ascribed to them in the Merger Agreement.
The Offer. In the Merger Agreement, the Purchaser has agreed subject to
certain conditions to, among other things, amend the Offer (i) to extend the
Offer to May 5, 1995, (ii) to increase the purchase price offered to $86.00 per
share of Common Stock (and associated Right) and (iii) to modify the conditions
of the Offer to conform to the Tender Offer Conditions. The obligations of the
Purchaser to accept for payment and promptly to pay for any shares of Common
Stock tendered will be subject only to the Tender Offer Conditions any of which
may be waived; provided, however, that, without the consent of the Company, the
Purchaser will not waive the Minimum Condition. Without the consent of the
Company, the Purchaser will not (i) reduce the number of Shares to be purchased
in the Offer, (ii) reduce the Offer Price, (iii) impose conditions to the Offer
in addition to the Tender Offer Conditions, (iv) change the form of
consideration payable in the Offer, or (v) amend any other term of the Offer
(including the Tender Offer Conditions) in a manner materially adverse to the
holders of the Common Stock. Subject to the terms and conditions of the Merger
Agreement, and unless the Company otherwise consents in writing, the Parent and
the Purchaser agree that the Purchaser will accept for payment and pay for
Common Stock as soon as it is permitted to do so under applicable law, provided
that the Purchaser will have the right, in its sole discretion, to extend the
Offer from time to time for up to a maximum of 10 additional business days,
notwithstanding the prior satisfaction of the Tender Offer Conditions.
Pursuant to the Merger Agreement, the Company has approved of and consented
to the Offer and represented and warranted that (i) its Board of Directors (at a
meeting duly called and held on April 9, 1995) has (1) determined by the
unanimous vote of the Directors that the Offer and the Merger are fair to and in
the best interests of the holders of Common Stock, (2) approved the Merger
Agreement, the Offer and the Merger, and determined that the consummation of the
Offer and the Merger will not constitute a "Change In Control" for purposes of
Section 9.2 of the Clark Equipment Company Leveraged Employee Stock Option Plan
(the "LESOP"), (3) resolved to recommend acceptance of the
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Offer by the stockholders of the Company and approval and adoption of the Merger
Agreement and the Merger by the stockholders of the Company, (4) taken all other
action necessary to render (A) Section 203 of the DGCL, (B) the Rights Agreement
and (C) Article SIXTH, Paragraph 6, of the Company's Restated Certificate of
Incorporation (as to the Company, the "Certificate of Incorporation")
inapplicable to the Offer and the Merger; provided, however, that such
recommendation or other action may be withdrawn, modified or amended at any time
if a majority of the Board of Directors of the Company determines, in its good
faith judgment, based on the opinion of independent outside legal counsel to the
Company, that failing to take such action would constitute a breach of such
Board's fiduciary obligations under applicable law; and (ii) CS First Boston has
delivered to the Board of Directors of the Company its opinion that the
consideration to be received by the holders of Common Stock (other than the
Parent and the Purchaser) pursuant to the Offer and the Merger is fair to the
holders of Common Stock from a financial point of view.
The Merger. The Merger Agreement provides that at the Effective Time the
Purchaser will be merged with the Company. By virtue of the Merger, at the
Effective Time, each outstanding share of Common Stock (other than (i) any
shares of Common Stock which are held by any subsidiary of the Company or in the
treasury of the Company, or which are held, by the Parent or any of its
subsidiaries (including the Purchaser), all of which will be cancelled, and (ii)
shares of Common Stock held by dissenting stockholders), will be cancelled and
converted into the right to receive an amount in cash, without interest, equal
to the price paid for each share of Common Stock pursuant to the Offer (the
"Merger Consideration") payable to the holder thereof less any required
withholding taxes. At the Effective Time, each share of outstanding common stock
of the Purchaser will become one share of common stock of the Company (the
"Surviving Corporation"). For a description of certain rights available to
stockholders upon consummation of the Offer or the Merger, see Section 11 of the
Offer to Purchase.
Agreements of the Company, the Purchaser and the Parent. In the Merger
Agreement, the Company has agreed that during the period from the date of the
Merger Agreement to the Effective Time, except as otherwise approved in writing
by the Parent, the Company and each of its subsidiaries will conduct their
respective operations only in the ordinary course of business consistent with
past practice and will use their reasonable best efforts to preserve intact
their respective business organization, keep available the services of their
officers and employees and maintain satisfactory relationships with licensors,
suppliers, distributors, clients and others having business relationships with
them.
The Merger Agreement provides that neither the Company nor any of its
subsidiaries (other than VME Group, N.V.) will (i) make any amendment to its
Certificate of Incorporation or By-Laws (or comparable governing documents);
(ii) issue or sell any shares of its capital stock (other than in connection
with the exercise of currently outstanding stock options) or any of its other
securities (including stock appreciation rights or phantom stock), or issue any
securities convertible into, or options, warrants or rights to purchase, or
enter into any arrangement or contract with respect to the issuance or sale of,
any shares of its capital stock or any of its other securities, or make any
other changes in its capital structure; (iii) sell or pledge any stock owned by
it in any of its subsidiaries; (iv) declare or pay any dividend or other
distribution or payment with respect to, or split, combine, redeem, reclassify
or purchase any shares of its capital stock; (v) other than in the ordinary
course of business consistent with past practice, transfer, lease, license,
guarantee, sell, mortgage, pledge, dispose of, encumber or subject to any lien
any material assets or incur or modify any indebtedness other than any
indebtedness incurred in connection with the acquisition of Club Car, Inc. or
other liability or issue any debt securities or assume, guarantee or endorse or
otherwise as an accommodation become responsible for the obligations of any
person; (vi) make any tax election or settle or compromise any material tax
liability; (vii) make any material change in its method of accounting; (viii)
(A) acquire (by merger, consolidation or acquisition of stock or assets) any
corporation, partnership or other business organization or division thereof; (B)
enter into any contract or agreement other than in the ordinary
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course of business consistent with past practice that would be material to the
Company and its subsidiaries taken as a whole; (C) to the extent not included in
the Company's capital budget for 1995 previously approved by the Company's Board
of Directors, for 150 days after the date of the Merger Agreement, authorize any
single capital expenditure in excess of $1.5 million or capital expenditures of
$10 million in the aggregate; or (D) enter into or materially amend any
agreement, commitment or arrangement with respect to any of the matters set
forth in this clause (viii); (ix) except to the extent required under existing
employee and director benefit plans, agreements or arrangements as in effect on
the date of the Merger Agreement, increase the compensation or fringe benefits
of any of its directors, officers or employees, except for increases in salary
or wages of employees of the Company or its subsidiaries who are not officers of
the Company in the ordinary course of business in accordance with past practice,
or grant any severance or termination pay not currently required to be paid
under existing severance plans or enter into any employment, consulting or
severance agreement or arrangement with any present or former director, officer
or other employee of the Company or any of its subsidiaries (other than
employment contracts with certain individuals), or establish, enter into or
amend or terminate any collective bargaining, bonus, profit sharing, thrift,
compensation, stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any directors, officers or
employees; (x) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
of the Company or any of its subsidiaries (other than the Merger); (xi) pay,
discharge or satisfy any claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction in the ordinary course of business and consistent with
past practice of liabilities reflected or reserved against in the financial
statements of the Company or incurred in the ordinary course of business and
consistent with past practice; or (xii) agree to take any of the foregoing
actions. However, the Merger Agreement permits the Company to fully fund,
through the Clark Equipment Company Supplemental Executive Retirement Trust or
the Clark Equipment Company Deferred Benefit Trust (collectively, "the Rabbi
Trusts") all amounts which may become payable to employees of the Company and
its subsidiaries upon a change in control of the Company (including additional
amounts (up to a maximum of $23 million) required to be paid to such employees
to gross up such payments for any income or other taxes incurred with respect
thereto).
Pursuant to the Merger Agreement, the Company will not, and will not permit
any of its subsidiaries other than VME Group, N.V. to, (i) take any action,
engage in any transaction or enter into any agreement which would cause any of
the representations or warranties set forth therein to be untrue as of the
Effective Time, or (ii) purchase or offer to purchase any shares of capital
stock of the Company.
The Merger Agreement provides that promptly after the consummation of the
Offer, if required by the DGCL in order to consummate the Merger, the Company
will convene a meeting of the holders of Common Stock for the purpose of voting
upon the Merger Agreement and the Merger. The Company will use its reasonable
best efforts to solicit from its stockholders proxies and, subject always to the
fiduciary obligations of the Company's directors under applicable law, will take
all other action necessary and advisable to secure the vote of stockholders
required by applicable law to obtain the approval of the Merger Agreement and
the Merger. Subject always to the fiduciary obligations of the Company's
directors under applicable law, the Company has agreed to include in the Proxy
Statement the recommendation of its Board of Directors that holders of Common
Stock approve and adopt the Merger Agreement and approve the Merger. For a
description of the short-form merger provisions of the DGCL, which under certain
circumstances could be applicable to the Merger, see Section 11 of the Offer to
Purchase.
The Merger Agreement provides that, if required by law, as promptly as
practicable after the consummation of the Offer, the Company will prepare and
file a preliminary Proxy Statement with the Commission and will use its
reasonable best efforts to have it cleared by the Commission at the earliest
practicable time.
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Pursuant to the Merger Agreement, promptly following the purchase by the
Purchaser of Shares pursuant to the Offer, the Purchaser will be entitled to
designate up to such number of directors, rounded up to the next whole number,
of the Company as will give the Purchaser representation on the Board of
Directors equal to the product of the total number of directors on the Board
(giving effect to the directors elected pursuant to the Merger Agreement)
multiplied by the percentage that the aggregate number of shares of Company
Common Stock beneficially owned by the Purchaser and its affiliates bears to the
total number of shares of Company Common Stock then outstanding. At such times,
the Company will use its best efforts to cause persons designated by the
Purchaser to constitute the same percentage as is on the Board of (i) each
committee of the Board, (ii) each board of directors of each domestic subsidiary
of the Company and (iii) each committee of each such board. Until the Purchaser
acquires a majority of the outstanding Shares on a fully diluted basis, the
Company will use its best efforts to ensure that all the members of the Board
and such boards and committees as of the date of the Merger Agreement who are
not employees of the Company will remain members of the Board and such boards
and committees.
Annex I attached to the Company's Schedule 14D-9 dated April 12, 1995 (the
"Schedule 14D-9") sets forth information with respect to the possible
designation by the Purchaser, pursuant to the Merger Agreement, of persons to be
elected to the Board of Directors of the Company. The Purchaser currently
intends to choose the designees to the Company's Board of Directors which it has
the right to designate pursuant to the Merger Agreement from among the
directors and officers of the Parent listed in Schedule I to the Offer to
Purchase.
The Company has agreed to take all actions required pursuant to Section
14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations
under the Merger Agreement described in the preceding paragraph and will include
in the Schedule 14D-9 or a separate Rule 14f-1 information statement provided to
stockholders such information with respect to the Company and its officers and
directors as is required under Section 14(f) and Rule 14f-1 to fulfill its
obligations thereunder. Pursuant to the Merger Agreement, the Parent or the
Purchaser will supply to the Company any information with respect to either of
them and their nominees, officers, directors and affiliates required by Section
14(f) and Rule 14f-1 under the Exchange Act.
Following the appointment of the Purchaser's designees as described above
and prior to the Effective Time, any amendment of the Merger Agreement, the
Certificate of Incorporation or By-Laws of the Company, any 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 the Purchaser or
waiver of any of the Company's rights thereunder, and any other consent or
action by the Board of Directors thereunder, will require the concurrence of a
majority of the directors of the Company then in office who are neither
designated by the Purchaser nor are employees of the Company.
Pursuant to the Merger Agreement, from the date of the Merger Agreement to
the Effective Time, the Company will afford the Parent and its representatives
and advisors reasonable access to the employees, properties, offices, plants and
other facilities and to all books and records of the Company and its
subsidiaries in order that they may have the opportunity to make such
investigations as they desire of the affairs of the Company and its
subsidiaries.
Under the Merger Agreement, the Company, its affiliates and their respective
officers, directors, employees, representatives and agents will immediately
cease any existing discussions or negotiations with any parties conducted
heretofore with respect to any acquisition or exchange of all or any material
portion of the assets of, or any equity interest in, the Company or any of its
subsidiaries (except pursuant to the VME Sale Agreement) or any business
combination with the Company or any of its subsidiaries. The Company, its
subsidiaries, directors, employees, representatives and agents may furnish
information and access, in each case only in response to a request made after
the date of the Merger Agreement for such information or access, to any person
which was not initiated, solicited or knowingly encouraged by the Company or any
of its affiliates or any of its or their respective officers, directors,
employees, representatives or agents after the date of the Merger Agreement
(with respect to
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confidential information, pursuant to appropriate confidentiality agreements),
and may participate in discussions and negotiate with such entity or group
concerning any merger, sale of assets, sale of shares of capital stock or
similar transaction (including an exchange of stock or assets) involving the
Company or any subsidiary or division of the Company, if such entity or group
has submitted a bona fide proposal to the Board relating to any such transaction
and if a majority of the Board of Directors of the Company determines, in its
good faith judgment, based on the opinion of independent outside legal counsel
to the Company, that failing to take such action would constitute a breach of
such Board's fiduciary obligations under applicable law. The Company will
promptly notify the Parent if any proposal or offer, or any inquiry or contact
with any person with respect thereto, is made and will indicate in reasonable
detail the identity of the offeror and the terms and conditions of any proposal
or offer, or any such inquiry or contact. The Company will keep the Parent
promptly advised of all developments which could reasonably be expected to
culminate in the Board of Directors withdrawing, modifying or amending its
recommendation of the Offer and the Merger. Except as set forth in the
provisions described in this paragraph, neither the Company or any of its
affiliates, nor any of its or their respective officers, directors, employees,
representatives or agents, will, directly or indirectly, knowingly encourage,
solicit, participate in or initiate discussions or negotiations with, or provide
any information to, any corporation, partnership, person or other entity or
group (other than the Parent and the Purchaser, any affiliate or associate of
the Parent and the Purchaser, or any designees of the Parent or the Purchaser)
concerning any merger, sale of assets, sale of shares of capital stock or
similar transactions (including an exchange of stock or assets) involving the
Company or any subsidiary or division of the Company; provided, that none of the
foregoing will prevent the Company or the Board from taking, and disclosing to
the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2
promulgated under the Exchange Act with regard to any tender offer or from
making such disclosure to the Company's stockholders which, as advised in an
opinion of counsel, is required under applicable law; provided, further, that
the Board will not recommend that the stockholders of the Company tender their
Shares in connection with any such tender offer unless the Board by a majority
vote determines in its good faith judgment, based on the opinion of independent
outside legal counsel to the Company, that failing to take such action would
constitute a breach of the Board's fiduciary duty under applicable law.
In the Merger Agreement, the Company has agreed that it will not amend the
Rights Agreement except as expressly contemplated by the Merger Agreement.
The Merger Agreement provides that each of the Company, the Parent and the
Purchaser will cooperate and use their respective reasonable best efforts to
take all appropriate action to consummate the Merger, including cooperation in
the preparation and filing of the Offer Documents, the Schedule 14D-9, the Proxy
Statement, any required filings under the HSR Act, Regulation (EEC) No. 4064/89
of the European Community or other foreign filings and obtaining all licenses,
permits, consents, approvals, authorizations, qualifications and orders of
governmental authorities and parties to contracts with the Company and its
subsidiaries as are necessary for consummation of the Merger and fulfillment of
the conditions to the Offer and the Merger.
Certain Employee Benefits Matters. Under the Merger Agreement, the Parent
has agreed that, during the period commencing at the Effective Time and ending
on December 31, 1996, the employees of the Company and its subsidiaries (other
than those employees covered by a collective bargaining agreement) will continue
to be provided with employee benefit plans which in the aggregate are
substantially comparable to those currently provided by the Company and its
subsidiaries to such employees (other than plans involving or related to the
securities of the Company except the Melroe Savings and Investment Plan and the
Clark Equipment Company Savings and Investment Plan (each as in effect
on April 3, 1995 and disregarding the effect of the Offer and the Merger on
such plans)). Employees covered by collective bargaining agreements will be
provided with such benefits as will be required under the terms of any
applicable collective bargaining agreement.
Under the Merger Agreement, the Parent has agreed to cause the Surviving
Corporation to honor and continue to perform all benefit obligations (including
to employees who have retired from the
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Company and its subsidiaries before the Effective Time), contracts and
agreements (including employment, consulting and severance obligations and
agreements, but excluding any Stock Plans) of the Company or any of its
subsidiaries authorized by the Company or any of its subsidiaries on or prior to
the date of the Merger Agreement which apply to any current or former employee
or current or former director of the Company or any of its subsidiaries. The
Parent has agreed that after the Effective Time the Surviving Corporation or its
subsidiaries will pay all amounts provided under all agreements of the Company
and its subsidiaries and all benefit obligations of the Company and its
subsidiaries, including the change in control agreements entered into between
the Company and its subsidiaries and their officers (the "Change in Control
Agreements") (or honor the provisions of the Change in Control Agreements in the
case where no payment by the Surviving Corporation or its subsidiaries is
required) conditioned on a change in control of the Company, in accordance with
the terms of such Change in Control Agreements (or will cause any related trusts
to make such payments in the case of funded plans). Notwithstanding anything
described in this section to the contrary, neither the Parent nor the Surviving
Corporation will be prevented from terminating the employment of any person.
For purposes of all employee benefit plans, programs and arrangements
maintained by or contributed to by the Parent and its subsidiaries (including
the Surviving Corporation), the Parent will cause each such plan, program or
arrangement to treat the prior service with the Company and its subsidiaries of
each person who is an employee of the Company or its subsidiaries a ("Clark
Employee") (to the same extent such service is recognized under analogous plans,
programs or arrangements of the Company or its subsidiaries prior to the
Effective Time) as service rendered to the Parent or its subsidiaries for
purposes of eligibility to participate and for all benefits and vesting
thereunder; provided, however, that any benefits provided under the Parent Plans
(as defined below) will be reduced by benefits in respect of the same years of
service under analogous plans, programs and arrangements maintained by or
contributed to by the Company, the Surviving Corporation or their subsidiaries.
Each Clark Employee who becomes an employee of the Parent or any of its
subsidiaries (other than the Surviving Corporation and its subsidiaries)
following the Effective Time (each a "Continued Employee") will be entitled, as
an employee of the Parent or of any of its subsidiaries (other than the
Surviving Corporation and its subsidiaries), to participate in whatever employee
benefit plans or nonqualified employee benefit or deferred compensation plans,
stock option, bonus or incentive plans or other employee benefit or fringe
benefit programs that may be in effect generally for employees of the Parent or
its subsidiaries from time to time ("Parent Plans") if such Continued Employee
will be eligible for participation therein and otherwise will not be
participating in a similar plan which continues to be maintained by the
Surviving Corporation and its subsidiaries. The Parent or the Parent's
subsidiaries will cause their respective tax-qualified defined benefit pension
plans in which any Continued Employee will become a participant on or after the
Effective Time to be amended to recognize, for purposes of vesting, eligibility
and benefit accrual thereunder, each Clark Employee's compensation and term of
service with the Company and its subsidiaries to the same extent recognized
under analogous plans of the Company and its subsidiaries prior to the Effective
Time; provided, however, that any benefits under such plans will be reduced by
benefits in respect of the same years of service under analogous plans, programs
and arrangements maintained by or contributed to by the Company, the Surviving
Corporation or their subsidiaries. Subject to the above-described provisions,
Continued Employees will be eligible to participate on the same basis as
similarly-situated employees of the Parent or its subsidiaries. All such
participation will be subject to such terms of such plans as may be in effect
from time to time.
Pursuant to the Merger Agreement, at all times after the Effective Time,
notwithstanding anything to the contrary in the Clark Equipment Company
Supplemental Executive Retirement Plan ("SERP 1"), the Clark Equipment Company
Supplemental Executive Retirement Trust ("SERP 1 Trust"), the Clark Equipment
Company Supplemental Retirement Income Plan for Certain Executives ("SERP 2") or
the Clark Equipment Company Deferred Benefit Trust ("SERP 2 Trust"), the terms
(i) "committee," as used in the SERP 1 Trust and SERP 2 Trust, (ii)
"Administrator," as used in the SERP 1 and SERP 2, (iii) "Chief Executive
Officer" as used in Section 2.3 of the SERP 1 and SERP 2,
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and (iv) "Company" as used in Section 4.2 of the SERP 1 and SERP 2, will in each
instance mean the Parent's benefits committee.
The Company has agreed that as soon as practicable after the execution of
the Merger Agreement it will use its best efforts to obtain the requisite
consents of all participants and beneficiaries of the Rabbi Trusts so that the
Company may amend the Clark Equipment Company Supplemental Executive Retirement
Plan and the Clark Equipment Company Supplemental Retirement Income Plan for
Certain Executives to permit either the Parent, the Company or any of their
respective subsidiaries to make a one-time withdrawal of assets from the Rabbi
Trusts to the extent such assets exceed 100% of the "Plan benefit value" (as
such term is used in Section 3 of each of the Clark Equipment Company
Supplemental Executive Retirement Plan and the Clark Equipment Company
Supplemental Retirement Income Plan for Certain Executives), such funding level
to be first certified by the actuary for the Company's tax-qualified Plan. After
such withdrawal, the right to withdraw amounts from either such Rabbi Trust will
continue as in effect prior to such amendments.
Directors' and Officers' Insurance; Indemnification. The Merger Agreement
provides that the certificate of incorporation and the bylaws of the Surviving
Corporation will contain provisions with respect to indemnification and
exculpation from liability no less favorable than those set forth in the
Company's Certificate of Incorporation and By-Laws on the date of the Merger
Agreement, which provisions will not be amended, repealed or otherwise modified
for a period of six years from the Effective Time in any manner that would
adversely affect the rights thereunder of individuals who on or prior to the
Effective Time were directors, officers, employees or agents of the Company,
unless such modification is required by law.
For six years from the Effective Time, the Surviving Corporation will either
(x) maintain in effect the Company's current directors' and officers' liability
insurance covering those persons who are currently covered on the date of the
Merger Agreement by the Company's directors' and officers' liability insurance
policy (the "Indemnified Parties"); provided, however, that in no event will the
Parent be required to expend in any one year an amount in excess of 175% of the
annual premiums currently paid by the Company for such insurance and if the
annual premiums of such insurance coverage exceed such amount, the Surviving
Corporation will be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount; provided further, that the
Surviving Corporation may substitute, for such Company policies, policies with
at least the same coverage containing terms and conditions which are no less
advantageous and provided that said substitution does not result in any gaps or
lapses in coverage with respect to matters occurring prior to the Effective Time
or (y) cause the Parent directors' and officers' liability insurance then in
effect to cover those persons who are covered on the date of the Merger
Agreement by the Company's directors' and officers' liability insurance policy
with respect to those matters covered by the Company's directors' and officers'
liability policy.
Disposition of Litigation. In the Merger Agreement, the Company has agreed
to dismiss without prejudice Clark Equipment Company v. Ingersoll-Rand Company,
Civil Action Docket No. 95 CIV 2130 (CSH) (S.D.N.Y. 1995). The Company agreed
that it will not settle any litigation currently pending, or commenced after the
date of the Merger Agreement, against the Company or any of its directors by any
stockholder of the Company relating to the Offer or the Merger Agreement without
the prior written consent of the Parent.
The Merger Agreement provides that the Company will not voluntarily
cooperate with any third party which has sought or may hereafter seek to
restrain or prohibit or otherwise oppose the Offer or the Merger and will
cooperate with the Parent and the Purchaser to resist any such effort to
restrain or prohibit or otherwise oppose the Offer or the Merger.
Proxy Contests. Pursuant to the Merger Agreement, the Parent and the
Purchaser have agreed to withdraw and rescind (i) the notice, dated April 3,
1995, pursuant to Article II, Section 10 of the Company's By-Laws and (ii) the
Schedule 14A filed with the Commission, in each case relating to the nomination
of the persons named in such notice for election to the Company's Board of
Directors at the Annual Meeting of the Company's Stockholders.
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From the date of the Merger Agreement until the earlier of (i) the Effective
Time and (ii) the termination of the Merger Agreement, neither the Parent nor
the Purchaser nor any of their affiliates or associates (as such terms are
defined in Rule 12b-2 promulgated under the Exchange Act) will, except as
otherwise expressly permitted or required by the Merger Agreement, directly or
indirectly, alone or through or with others, in any manner (i) solicit, make, or
in any way participate in, directly or indirectly, any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the Commission
promulgated pursuant to Section 14a-11 of the Exchange Act) from the
stockholders of the Company, become a "participant" in any "election contest"
(as such terms are defined or used in Rule 14a-11 promulgated under the Exchange
Act) with respect to the Board of Directors of the Company, solicit or execute
any written consent in lieu of a meeting of holders of voting securities except
to support the nominees or directors of the Board of Directors of the Company or
any affiliate thereof or call or seek to have called any meeting of the
stockholders of the Company or any affiliate thereof, or (ii) except as provided
in the Merger Agreement, otherwise seek election to or seek to place a
representative on the Board of Directors of the Company or any affiliate
thereof, or seek the removal of any member of the Board of Directors of the
Company or any affiliate thereof.
Postponement of Annual Meeting. The Company has agreed to postpone
indefinitely its annual meeting of stockholders currently scheduled for May 9,
1995, and will take no action unless compelled by legal process to reschedule
such annual meeting or to call a special meeting of stockholders of the Company
except in accordance with the Merger Agreement, unless and until the Merger
Agreement has been terminated in accordance with its terms.
Sale of VME. The Company has agreed to use its reasonable best efforts to
take or cause to be taken all such action necessary (i) to consummate the
transactions contemplated by the VME Sale Agreement (which agreement is
described in the Company's Current Report on Form 8-K filed with the Commission
on March 6, 1995) prior to the completion of the Offer, including selling its
50% interest in VME Group N.V. for cash proceeds of not less than $573 million,
or (ii) failing such consummation, to prevent cancellation or termination of the
VME Sale Agreement or any amendment of such agreement in a manner that would
reasonably be expected to have a material adverse affect on the Company, or any
other event which will cause the VME Sale Agreement to no longer remain in full
force and effect.
Representations and Warranties. The Merger Agreement contains customary
representations and warranties with respect to the Company, including that the
Board of Directors of the Company has approved the Merger Agreement and the
Offer and the Merger so as to render inapplicable thereto Section 203 of the
DGCL and the supermajority stockholder voting requirements of Article SIXTH,
Paragraph 6, of the Company's Certificate of Incorporation; the accuracy of the
Company's documents and reports filed with the Commission; with respect to the
Company's financial statements and financial condition; the absence of certain
changes of events which individually or in the aggregate would reasonably be
expected to have a material adverse effect on the business, assets, financial
condition or results of operations of the Company and its subsidiaries taken as
a whole; the absence of certain litigation; with respect to the Company's
employee benefit plans, tax matters, environmental matters; that the Company has
taken all necessary action so that none of the execution of the Merger
Agreement, the making of the Offer, the acquisition of Shares pursuant to the
Offer or the consummation of the Merger will cause the Rights to become
exercisable, cause any person to become an Acquiring Person or give rise to a
Distribution Date or a Triggering Event; and that since December 31, 1994, no
event has occurred and no circumstance has arisen which would reasonably be
expected to result in a failure to satisfy any of the conditions to the Offer.
In the Merger Agreement,the Parent and the Purchaser have made customary
representations and warranties, including that the Parent has a commitment to
provide the financing for, and will provide the Purchaser with, the funds
necessary to consummate the Offer and the Merger and the transactions
contemplated thereby in accordance with the terms thereof.
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Conditions to Merger. The respective obligations of the Parent, the
Purchaser and the Company to effect the Merger are subject to the satisfaction
or waiver (subject to applicable law) at or prior to the Effective Time of each
of the following conditions: (i) to the extent required by applicable law, the
Merger Agreement and the Merger will have been approved and adopted by holders
of a majority of the Common Stock of the Company in accordance with applicable
law and the Company's Certificate of Incorporation and By-Laws; (ii) any waiting
period (and any extension thereof) under the HSR Act applicable to the Merger
will have expired or been terminated; (iii) no preliminary or permanent
injunction or other order will have been issued by any court or by any
governmental or regulatory agency, body or authority which prohibits the
consummation of the Offer or the Merger and which is in effect at the Effective
Time, provided, however, that, in the case of any such decree, injunction or
other order, each of the parties to the Merger Agreement will have used
reasonable best efforts to prevent the entry of any such injunction or other
order and to appeal as promptly as possible any decree, injunction or other
order that may be entered; (iv) no statute, rule, regulation, executive order,
decree or order of any kind will have been enacted, entered, promulgated or
enforced by any court or governmental authority which prohibits the consummation
of the Offer or the Merger or has the effect of making the purchase of the
Common Stock illegal; and (v) the Purchaser will have accepted for payment and
paid for the shares of Common Stock tendered pursuant to the Offer; provided,
that the foregoing will not be a condition to the Parent's and the Purchaser's
obligation to consummate the Merger if the Purchaser's failure to purchase
Shares of Common Stock violates the terms of the Offer.
Termination. The Merger Agreement may be terminated and the transactions
contemplated thereby may be abandoned, at any time prior to the Effective Time,
whether before or after approval of the Merger by the Company's stockholders:
(a) by mutual written consent of the Company, the Parent and the Purchaser; (b)
by either the Parent or the Company, if any governmental or regulatory agency
located or having jurisdiction within the United States or any country or
economic region in which either the Company or Parent has material assets or
operations will have issued an order, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the acceptance for
payment of, or payment for, shares of Common Stock pursuant to the Offer or the
Merger and such order, decree or ruling or other action will have become final
and nonappealable; provided, that Parent will, if necessary to prevent the
taking of such action, or the enaction, enforcement, promulgation, amendment,
issuance or application of any statute, rule, regulation, legislation,
interpretation, judgment, order or injunction, offer to accept an order to
divest such of the Company's or the Parent'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, but only if the amount of such assets and
businesses is not material to the assets or profitability of the Parent and its
subsidiaries taken as a whole; (c) by the Parent or the Company, if due to an
occurrence or circumstance which would result in a failure to satisfy any of the
Tender Offer Conditions, the Purchaser will have failed to pay for Shares
pursuant to the Offer on or prior to the Outside Date, unless such failure has
been caused by or results from the failure of the party seeking to terminate the
Merger Agreement to perform in any material respect any of its respective
covenants contained in the Merger Agreement. The term "Outside Date" will mean
the latest (not to exceed 150 days) of (A) 60 days following the date of the
Merger Agreement, (B) the date on which either the applicable waiting period
under the HSR Act will have expired or been terminated or the final terms of a
consent decree between the Parent and the Antitrust Division of the Department
of Justice (the "Antitrust Division") (the "Consenting Parties"), with respect
to the Offer and the Merger have been agreed to by the Consenting Parties, or an
order of a Federal District Court adjudging that the Merger does not violate the
Federal antitrust laws will have been issued or the Antitrust Division will have
otherwise authorized the Parent to acquire Shares pursuant to the Offer, or (C)
10 business days following the conclusion of any ongoing proceedings before the
European Commission in connection with its review of the transactions
contemplated by the Merger Agreement or any similar delay pursuant to any other
material antitrust or competitive law or regulation; (d) by the Parent or the
Company, if the Offer is terminated or expires in accordance with its terms
without the Purchaser having purchased any Common Stock thereunder due to a
failure of any
13
<PAGE>
of the conditions to the Offer to be satisfied, unless such termination or
expiration has been caused by or results from the failure of the party seeking
to terminate the Merger Agreement to perform in any material respect any of its
respective covenants contained in the Merger Agreement; (e) by the Company, if
the Board of Directors of the Company determines that a proposal for a Third
Party Acquisition is a Superior Proposal and a majority of the Board of
Directors of the Company determines, in its good faith judgment, based on the
opinion of independent legal outside counsel to the Company, that a failure to
terminate the Merger Agreement would constitute a breach of such Board's
fiduciary obligations under applicable law; provided, that any such termination
by the Company under the provisions described in this clause (e) will not be
effective until the Company has made payment of the full fee and expense
reimbursement described below under "Fees and Expenses"; (f) prior to the
consummation of the Offer, by the Company, if (i) any of the representations and
warranties of the Parent or the Purchaser contained in the Merger Agreement were
incorrect in any material respect when made or have since become, and at the
time of termination remain, incorrect in any material respect, or (ii) the
Parent or the Purchaser will have breached or failed to comply in any material
respect with any of their respective obligations under the Merger Agreement,
which breach will not have been cured prior to the earlier of (A) 10 days
following notice of such breach and (B) two business days prior to the date on
which the Offer expires; or (g) by the Parent prior to the purchase of Shares
pursuant to the Offer, if (i) there will have been a breach of any
representation or warranty on the part of the Company contained in the Merger
Agreement which would reasonably be expected to have a material adverse effect
on the business, assets, financial condition or results of operations of the
Company and its subsidiaries taken as a whole or which would reasonably be
expected to prevent (or materially delay) the consummation of the Offer, (ii)
there will have been a breach of any covenant on the part of the Company
contained in the Merger Agreement which would reasonably be expected to have a
material adverse effect on the business, assets, financial condition or results
of operations of the Company and its subsidiaries taken as a whole or which
would reasonably be expected to prevent (or materially delay) the consummation
of the Offer, which will not have been cured prior to the earlier of (A) 10 days
following notice of such breach and (B) two business days prior to the date on
which the Offer expires, (iii) the Board will have withdrawn or modified in a
manner adverse to the Purchaser its approval or recommendation of the Offer, the
Merger Agreement or the Merger and will not have reinstated such approval or
recommendation within three business days thereof, will have approved or
recommended another offer or transaction, or will have resolved to effect any of
the foregoing, or (iv) the Minimum Condition will not have been satisfied by the
expiration date of the Offer and on or prior to such date (A) any person (other
than the Parent or the Purchaser) will have made a proposal or public
announcement or communication to the Company with respect to a Third Party
Acquisition at a price in excess of $86.00 per Share or (B) any person
(including the Company or any of its affiliates or subsidiaries), other than the
Parent or any of its affiliates, will have become the beneficial owner of more
than 20.0% of the Shares.
"Third Party Acquisition" is defined in the Merger Agreement as the
occurrence of any of the following events: (i) the acquisition of the Company by
merger, tender offer or otherwise by any person other than the Parent, the
Purchaser or any affiliate (a "Third Party"); (ii) the acquisition by a Third
Party of 20.0% or more of the assets of the Company and its subsidiaries taken
as a whole; (iii) the acquisition by a Third Party of more than 20.0% of the
outstanding Shares; (iv) the adoption by the Company of a plan of liquidation or
the declaration or payment of an extraordinary dividend; or (v) the repurchase
by the Company or any of its subsidiaries of 20.0% or more of the outstanding
Shares.
"Superior Proposal" is defined in the Merger Agreement as a bona fide
proposal made by a Third Party to acquire all of the outstanding Shares pursuant
to a tender offer or a merger, or to purchase all or substantially all of the
assets of the Company, on terms which a majority of the members of the Board of
Directors of the Company determines in its good faith reasonable judgment (based
on the advice of its financial and legal advisors) to be more favorable to the
Company and its stockholders than the Offer and the Merger.
14
<PAGE>
In the event of the termination of the Merger Agreement, the Merger
Agreement will forthwith become void and there will be no liability on the part
of any party thereto subject to limited exceptions; provided, however, that
nothing therein will relieve any party from liability for any breach hereof.
Fees and Expenses. Under the Merger Agreement, if: (i) the Parent terminates
the Merger Agreement pursuant to the provisions described in clause (g)(iv)(A)
under "Termination" above and within twelve months thereafter: (A) the Company
enters into an agreement with respect to a Third Party Acquisition, or a Third
Party Acquisition occurs, involving any party (or any affiliate or associate
thereof) (x) with whom the Company (or its agents) had any discussions with
respect to a Third Party Acquisition, (y) to whom the Company (or its agents)
furnished information with respect to or with a view to a Third Party
Acquisition or (z) who had submitted a proposal or expressed any interest
publicly or to the Company in a Third Party Acquisition, in the case of each of
clauses (x), (y) and (z) prior to such termination; or (B) the Company enters
into an agreement with respect to a Third Party Acquisition, or a Third Party
Acquisition occurs, that contemplates a direct or indirect consideration (or
implicit valuation) for Shares (including the value of any stub equity) in
excess of $86.00 per Share; or (ii) the Company terminates the Merger Agreement
pursuant to the provisions described in clause (e) under "Termination" above or
the Parent terminates the Merger Agreement pursuant to the provisions described
in clause (g)(iii) or (g)(iv)(B) under "Termination" above; then the Company
must pay to the Parent and the Purchaser, within one business day following the
execution and delivery of such agreement or such occurrence, as the case may be,
or simultaneously with any termination contemplated by the provisions described
in clause (ii) above, a cash fee of $35 million, provided, however, that the
Company will in no event be obligated to pay more than one such fee with respect
to all such agreements and occurrences and such termination.
Except as otherwise specifically provided therein, all costs and expenses
incurred in connection with the Merger Agreement and the consummation of the
transactions contemplated thereby will be paid by the party incurring such costs
and expenses.
Amendment and Modification. Subject to the terms of the Merger Agreement and
applicable law, the Merger Agreement may be amended, modified and supplemented
in writing by the parties thereto in any and all respects before the Effective
Time (notwithstanding any stockholder approval of the Merger), by action taken
by the respective Boards of Directors of the Parent, the Purchaser and the
Company or by the respective officers authorized by such Boards of Directors,
provided, however, that after any such stockholder approval, no amendment will
be made which by law requires further approval by such stockholders without such
further approval.
6. CERTAIN CONDITIONS OF THE OFFER. Pursuant to the Merger Agreement, the
conditions of the Offer are hereby amended and restated in their entirety as
follows:
Notwithstanding any other provision of the Offer, the Purchaser shall
not be required to accept for payment or, subject to any applicable rules
and regulations of the Commission, including Rule 14e-1(c) promulgated under
the Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered shares promptly after termination or withdrawal of the
Offer), pay for any Shares tendered and may terminate or amend the Offer in
accordance with the Merger Agreement and may postpone the acceptance of, and
payment for, Shares, if (i) there shall not have been validly tendered and
not withdrawn prior to the expiration of the Offer a number of Shares which,
together with Shares owned by the Parent and the Purchaser, represents a
majority of the total voting power of all shares of capital stock of the
Company outstanding on a fully diluted basis on the date of purchase (the
"Minimum Condition"), (ii) subject to the proviso contained in paragraph (a)
below, any applicable waiting period under the HSR Act or under any
applicable foreign statutes or regulations in a jurisdiction where the
Parent or the Company, directly or indirectly, has material operations or a
material amount of assets shall not have expired or been terminated or (iii)
at any time on or after the date of the Merger Agreement and at or before
the
15
<PAGE>
time of payment for any such Shares (whether or not any Shares have
theretofore been accepted for payment or paid for pursuant to the Offer) any
of the following shall occur:
(a) there shall be any action taken, or any statute, rule,
regulation, legislation, interpretation, judgment, order or injunction
enacted, enforced, promulgated, amended, issued or deemed applicable to
the Offer, by any legislative body, court, government or governmental,
administrative or regulatory authority or agency, domestic or foreign,
other than the routine application of the waiting period provisions of
the HSR Act to the Offer or to the Merger, that would reasonably be
expected to: (i) make illegal or otherwise prohibit or materially delay
consummation of the Offer or the Merger or seek to obtain material
damages or make materially more costly the making of the Offer, (ii)
prohibit or materially limit the ownership or operation by the Parent or
the Purchaser of all or any material portion of the business or assets of
the Company or any of its subsidiaries taken as a whole or compel the
Parent or the Purchaser to dispose of or hold separately all or any
material portion of the business or assets of the Parent or the Purchaser
or the Company or any of its subsidiaries taken as a whole, or seek to
impose any material limitation on the ability of the Parent or the
Purchaser to conduct its business or own such assets, (iii) impose
material limitations on the ability of the Parent or the Purchaser
effectively to acquire, hold or exercise full rights of ownership of the
Shares, including, without limitation, the right to vote any Shares
acquired or owned by the Purchaser or the Parent on all matters properly
presented to the Company's stockholders, or (iv) require divestiture by
the Parent or the Purchaser of any Shares; provided, that the Parent
shall, if necessary to prevent the taking of such action, or the
enaction, enforcement, promulgation, amendment, issuance or application
of any statute, rule, regulation, legislation, interpretation, judgment,
order or injunction, offer to accept an order to divest such of the
Company's or the Parent'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, but only if the amount of such assets
and businesses is not material to the assets or profitability of the
Parent and its subsidiaries taken as a whole;
(b) there shall have occurred any development that has, or would
reasonably be expected to have, a material adverse effect on the
business, assets, financial condition or results of operations of the
Company and its subsidiaries taken as a whole;
(c) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on the New York Stock
Exchange, (ii) any decline in the Standard & Poor's 500 Index in excess
of 25% measured from the close of business on the trading day next
preceding the date of the Merger Agreement, (iii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in
the United States, (iv) any material limitation by any U.S., federal or
state government or governmental, administrative or regulatory authority
or agency on the extension of credit by banks or other lending
institutions, or (v) a commencement or escalation of a war or armed
hostilities or other national or international calamity directly or
indirectly involving the United States and having a material adverse
effect on the business, assets, financial condition or results of
operations of the Company and its subsidiaries taken as a whole or
materially adversely affecting (or materially delaying) the consummation
of the Offer;
(d)(i) it shall have been publicly disclosed or the Purchaser shall
have otherwise learned that beneficial ownership (determined for the
purposes of this paragraph as set forth in Rule 13d-3 promulgated under
the Exchange Act) of more than 20.0% of the outstanding Shares has been
acquired by any corporation (including the Company or any of its
subsidiaries or affiliates), partnership, person or other entity or group
(as defined in Section 13(d)(3) of the Exchange Act), other than the
Parent or any of its affiliates, or (ii) (A) the Board of Directors of
the Company or any committee thereof shall have withdrawn or modified in
a manner
16
<PAGE>
adverse to the Parent or the Purchaser the approval or recommendation of
the Offer, the Merger or the Merger Agreement, or approved or recommended
any takeover proposal or any other acquisition of Shares other than the
Offer and the Merger, (B) any corporation, partnership, person or other
entity or group shall have entered into a definitive agreement or an
agreement in principle with the Company with respect to a tender offer or
exchange offer for any Shares or a merger, consolidation or other
business combination with or involving the Company or any of its
subsidiaries, or (C) the Board of Directors of the Company or any
committee thereof shall have resolved to do any of the foregoing;
(e) any of the representations and warranties of the Company set
forth in the Merger
Agreement that are qualified as to materiality shall not be true and
correct, or any such representations and warranties that are not so
qualified shall not be true and correct in any respect which would
reasonably be expected to have a material adverse effect on the business,
assets, results of operations or financial condition of the Company and
its subsidiaries taken as a whole, in each case as if such
representations and warranties were made at the time of such
determination except as to any such representation or warranty which
speaks as of a specific date, which must be untrue or incorrect in the
foregoing respects as of such specific date;
(f) the Company shall have failed to perform in any material respect
any obligation, or to comply in any material respect with any agreement
or covenant, of the Company to be performed or complied with by it under
the Merger Agreement;
(g)(x) the Company shall not have consummated the sale of its 50%
interest in VME Group N.V. for cash proceeds of not less than $573
million and (y) the definitive agreement to sell such interest to AB
Volvo of Sweden described in the Company's Current Report on Form 8-K
filed with the Commission on March 6, 1995 shall have been cancelled or
terminated, or shall have been amended in a manner that is materially
adverse to the Company, or shall otherwise no longer remain in full force
and effect; or
(h) the Merger Agreement shall have been terminated in accordance
with its terms;
which, in the reasonable judgment of the Purchaser, in any such case and
regardless of the circumstances giving rise to any such condition, makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions (including those set forth in clauses (i)-(iii)
above) are for the sole benefit of the Purchaser and may be asserted by the
Purchaser, or may be waived by the Purchaser, in whole or in part at any
time and from time to time in its sole discretion. The failure by the
Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
7. SOURCE AND AMOUNT OF FUNDS. The total amount of funds required by the
Purchaser to purchase all of the outstanding Shares and pay related funds and
expenses is expected to be approximately $1.5 billion. The Purchaser will obtain
such funds through capital contributions by the Parent and/or various wholly
owned direct or indirect subsidiaries of the Parent. The Parent and/or such
subsidiaries will obtain such funds through borrowings from commercial banks and
from general corporate funds.
In the Merger Agreement, the Parent has represented and warranted that it
has a commitment to provide the financing for, and will provide the Purchaser
with, all funds necessary to satisfy the obligation to pay the purchase price of
the Shares pursuant to the Offer and the consideration to be paid pursuant to
the Merger. The Offer is not conditioned upon the Purchaser obtaining financing.
The Chase Manhattan Bank (National Association) ("Chase") has agreed to
provide a $1.5 billion bank credit facility in connection with the consummation
of the Offer and the Merger. See Section 9 of
17
<PAGE>
the Offer to Purchase for a description of the original Commitment Letter the
Parent has received from Chase. The Parent has accepted a supplemental
commitment letter (the "Supplemental Commitment Letter") from Chase which,
together with the Commitment Letter, provides that so long as the Offer has been
consummated on or before August 31, 1995, Chase will provide to the Parent a
total of $1.5 billion on the terms and conditions set forth in the Commitment
Letter, which terms and conditions are described in Section 9 of the Offer to
Purchase.
The foregoing summary of the source and amount of funds, together with the
summary set forth in Section 9 of the Offer to Purchase, is qualified in its
entirety by reference to the text of the Commitment Letter, a copy of which is
filed as an exhibit to the Schedule 14D-1 and the Supplemental Commitment
Letter, a copy of which is filed as an exhibit to Amendment No. 3 to the
Schedule 14D-1 filed with the Commission in connection with this Supplement,
each of which is incorporated herein by reference and may be inspected in the
same manner as set forth in Section 7 of the Offer to Purchase. When definitive
agreements relating to the Facility are executed, copies will be filed as
exhibits to amendments to the Schedule 14D-1.
As noted in Section 9 of the Offer to Purchase, the Facility will be reduced
to $1.0 billion on the earlier of 45 days after consummation of the Merger or
180 days after consummation of the Offer. At that time, Parent intends to repay
the amount by which the Facility exceeds $1.0 billion (which amount is presently
expected to be $500 million) in the following manner. The Parent intends to use
up to $150 million of cash and cash equivalents that it has on hand and/or, if
the Merger has been consummated, up to $500 million of cash and cash equivalents
which the Company will then have on hand (including some of the proceeds which
the Company will shortly be receiving from the sale of its 50% interest in VME
(see Section 7 of the Offer to Purchase)), to fund the entire amount of such
repayment. If the Merger has not been consummated, or if it has but the
Company's cash and cash equivalents on hand are not sufficient to fund the
entire amount of such required repayment not funded out of the Parent's cash and
cash equivalents on hand, the Parent intends to obtain the remaining funds
necessary to effect such repayment from the proceeds of private placements under
a commercial paper program of the Parent or other borrowings by the Parent,
including possible drawdowns under the Existing Credit Agreement.
8. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS. Antitrust Litigation.
Pursuant to the Merger Agreement, on April 11, 1995, the Company filed with the
court in the Antitrust Litigation a notice of dismissal of all claims against
the Parent. See Section 5 of this Supplement.
HSR Act. On April 3, 1995, the Parent filed with the Federal Trade
Commission (the "FTC") and the Antitrust Division its Premerger Notification and
Report Form in connection with the purchase of Shares pursuant to the Offer. The
applicable provisions of the HSR Act impose a 15-calendar day waiting period
following the Purchaser's filing. That waiting period is scheduled to expire at
11:59 p.m., New York City time, on Tuesday, April 18, 1995, unless such waiting
period is earlier terminated by the Antitrust Division or extended by a request
from the Antitrust Division for additional information or documentary material
prior to the expiration of the waiting period. In the Merger Agreement, the
Company has agreed to file by the close of business on April 13, 1995 a
Notification and Report Form under the HSR Act with the FTC and the Antitrust
Division and to use its reasonable best efforts to respond as promptly as
practicable to all inquiries received from the FTC or the Antitrust Division for
additional information or documentation. See Section 5.
EEA Merger Regulation. Under Regulation (EEC) No. 4064/89 (the "Merger
Regulation") and Article 57 of the European Economic Area ("EEA") Agreement,
notices of concentrations with a "Community dimension" must be provided to the
European Commission for review and advance approval for compatibility with the
common market. On April 5, 1995, the Parent filed its Form CO Relating to the
Notification of a Concentration Pursuant to Council Regulation (EEC) No. 4064/89
with the European Commission. Under the Merger Regulation, an automatic
three-week suspension
18
<PAGE>
period commences upon receipt of the notification. However, in the case of a
public bid, the bidder may acquire shares of the target company during the
suspension period but may not vote such shares until after the end of the
suspension period unless the European Commission grants permission to do so in
order to maintain the full value of the bidder's investment. The suspension
period is scheduled to expire on April 27, 1995, unless the European Commission
decides to extend the suspension period for such period as it finds necessary to
make a final decision. The period within which the European Commission must
decide either to declare the transaction compatible with the common market or to
initiate proceedings to investigate the transaction in greater detail expires on
May 15, 1995. The Parent intends to provide such additional information as the
European Commission may request.
9. MISCELLANEOUS. The Parent 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 7 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 THE PURCHASER OR THE PARENT 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.
CEC ACQUISITION CORP.
April 12, 1994
19
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents (including certificates for Rights, if
necessary) should be sent or delivered by each stockholder of the Company or his
broker, dealer, commercial bank, trust company or other nominee to the
Depositary as follows:
<TABLE>
<S> <C> <C>
The Depositary for the Offer
is:
THE BANK OF NEW YORK
By Mail: By Facsimile Transmission: By Hand or Overnight Delivery:
Tender & Exchange Department (for Eligible Institutions Tender & Exchange Department
P.O. Box 11248 only) 101 Barclay Street
Church Street Station (212) 815-6213 Receive and Deliver Window
New York, NY 10286-1248 For Information Telephone: New York, NY 10286
(800) 507-9357
</TABLE>
Any questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and addresses
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and the Notice of Guaranteed Delivery may also be obtained from the
Information Agent. You may also contact your broker, dealer, commercial bank or
trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
GEORGISON & COMPANY INC.
Wall Street Plaza
New York, NY 10005
Banks and Brokers Call Collect: (212) 440-9800
All Other Call Toll-Free: (800) 223-2064
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
World Financial Center
North Tower
New York, NY 10281-1305
(212) 236-4723 (Call Collect)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLARK EQUIPMENT COMPANY
PURSUANT TO THE OFFER TO PURCHASE
DATED APRIL 3, 1995
AND THE SUPPLEMENT THERETO
DATED APRIL 12, 1995
BY
CEC ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INGERSOLL-RAND COMPANY
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY,
MAY 5, 1995, UNLESS FURTHER EXTENDED.
<TABLE>
<S> <C> <C>
The Depositary for the Offer is:
The Bank of New York
By Mail: By Facsimile Transmission: By Hand or Overnight Delivery:
Tender & Exchange Department (for Eligible Institutions only) Tender & Exchange Department
P.O. Box 11248 (212) 815-6213 101 Barclay Street
Church Street Station Confirm by Telephone: Receive and Deliver Window
New York, NY 10286-1248 (800) 507-9357 New York, NY 10286
</TABLE>
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.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
While the original (green) Letter of Transmittal previously circulated with
the Offer to Purchase dated April 3, 1995 refers only to such Offer to Purchase,
stockholders using such document to tender their Shares and Rights (as such
terms are defined below) will nevertheless receive $86.00 per Share for each
Share validly tendered and not properly withdrawn and accepted for payment
pursuant to the Offer (as defined below), subject to the conditions of the
Offer. Stockholders who have previously validly tendered and not properly
withdrawn their Shares pursuant to the Offer are not required to take any
further action to receive, subject to the conditions of the Offer, the increased
tender price of $86.00 per Share if Shares are accepted for payment and paid for
by the Purchaser (as defined below) pursuant to the Offer.
This revised Letter of Transmittal or the previously circulated original
(green) Letter of Transmittal is to be completed by stockholders either if
certificates for Shares or Rights (as such terms are defined below) are to be
forwarded herewith or, unless an Agent's Message (as defined in Section 2 of the
Offer to Purchase) is utilized, if tenders of Shares or Rights are to be made by
book-entry transfer into the account of The Bank of New York, 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). Stockholders who tender Shares or Rights by
book-entry transfer are referred to herein as "Book-Entry Stockholders".
Holders of Shares will be required to tender one Right for each Share
tendered in order to effect a valid tender of such Share. If the Distribution
Date (as defined in the Offer to Purchase) has not occurred prior to the time
Shares are tendered pursuant to the Offer, a tender of Shares will also
constitute a tender of the associated Rights. See Section 3 of the Offer to
Purchase. If the Distribution Date has occurred, and certificates representing
Rights (the "Rights Certificates") have been distributed to holders of Shares,
such holders of Shares will be required to tender Rights Certificates
representing a number of Rights equal to the number of Shares being tendered in
order to effect a valid tender of such Shares. Holders of Shares and Rights
whose certificates for such Shares (the "Share Certificates") and, if
applicable, Rights Certificates are not immediately available or who cannot
deliver their Share Certificates or, if applicable, Rights Certificates and all
other required documents to the Depositary prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase), or who cannot complete the
procedure for book-entry transfer on a timely basis, must tender their Shares
and Rights 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.
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES TENDERED
NAME(S) & ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS SHARES CERTIFICATE(S) AND SHARE(S) TENDERED
NAME(S) APPEAR(S) ON CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
TOTAL NUMBER
SHARES OF SHARES NUMBER OF
CERTIFICATE REPRESENTED BY SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
Total Shares..................................
</TABLE>
* Need not be completed by Book-Entry Stockholders.
** Unless otherwise indicated, all Shares represented by certificates
delivered to the Depositary will be deemed to have been tendered. See
Instruction 4.
<TABLE>
<CAPTION>
DESCRIPTION OF RIGHTS TENDERED*
NAME(S) & ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS RIGHTS CERTIFICATE(S) AND RIGHT(S) TENDERED
NAME(S) APPEAR(S) ON CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
TOTAL NUMBER
OF RIGHTS
RIGHTS REPRESENTED BY NUMBER OF
CERTIFICATE RIGHTS RIGHTS
NUMBER(S)** CERTIFICATE(S)** TENDERED***
<S> <C> <C> <C>
Total Rights..................................
</TABLE>
* Need not be completed if the Distribution Date (as defined below) has not
occurred.
** Need not be completed by Book-Entry Stockholders.
*** Unless otherwise indicated, all Rights represented by certificates
delivered to the Depositary will be deemed to have been tendered. See
Instruction 4.
<PAGE>
/ / CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY
MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ________________________________________________
Check box of Book-Entry Transfer Facility (check one):
/ / The Depository Trust Company / / Midwest Securities Trust
Company
/ / Philadelphia Depository Trust Company
Account Number ____________________________ Transaction Code Number __________
/ / CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s): ______________________________________________
Window Ticket Number (if any): _______________________________________________
Date of Execution of Notice of Guaranteed Delivery: __________________________
Name of Institution that Guaranteed Delivery: ________________________________
If delivered by Book-Entry Transfer, check box of Book-Entry Transfer Facility
(check one):
/ / The Depository Trust Company / / Midwest Securities Trust
Company
/ / Philadelphia Depository Trust Company
Account Number ____________________________ Transaction Code Number __________
<PAGE>
/ / CHECK HERE IF RIGHTS ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY
MAY DELIVER RIGHTS BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ________________________________________________
Check box of Book-Entry Transfer Facility (check one):
/ / The Depository Trust Company / / Midwest Securities Trust
Company
/ / Philadelphia Depository Trust Company
Account Number ____________________________ Transaction Code Number __________
/ / CHECK HERE IF RIGHTS ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s): ______________________________________________
Window Ticket Number (if any): _______________________________________________
Date of Execution of Notice of Guaranteed Delivery: __________________________
Name of Institution that Guaranteed Delivery: ________________________________
If delivered by Book-Entry Transfer, check box of Book-Entry Transfer Facility
(check one):
/ / The Depository Trust Company / / Midwest Securities Trust
Company
/ / Philadelphia Depository Trust Company
Account Number ____________________________ Transaction Code Number __________
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to CEC Acquisition Corp., a Delaware
corporation (the "Purchaser"), a wholly owned subsidiary of Ingersoll-Rand
Company, a New Jersey corporation ("Parent"), the above-described shares of
Common Stock, $7.50 par value per share (the "Shares"), of Clark Equipment
Company, a Delaware corporation (the "Company"), and the associated Preferred
Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement,
dated as of March 10, 1987, as amended and restated as of August 14, 1990 (as so
amended and restated, the "Rights Agreement"), between the Company and Harris
Trust and Savings Bank, as Rights Agent (the "Rights Agent"), at a purchase
price of $86.00 per Share (and associated Right), 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 April 3, 1995 (the "Offer to Purchase"), as
amended and supplemented by the Supplement thereto dated April 12, 1995 (the
"Supplement"), and in the related Letter of Transmittal (which together with the
Offer to Purchase and the Supplement constitute the "Offer"). Unless the context
requires otherwise, all references to Shares shall be deemed to refer also to
the associated Rights, and all references to Rights shall be deemed to include
all benefits that may inure to the stockholders of the Company or to holders of
the Rights pursuant to the Rights Agreement. The undersigned understands that
the 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 and Rights tendered pursuant to the Offer, receipt of
which is hereby acknowledged.
The undersigned understands that if the Distribution Date (as defined in the
Offer to Purchase) has occurred and certificates representing Rights (the
"Rights Certificates") have been distributed to holders of Shares prior to the
date of tender of the Shares and Rights tendered herewith, Rights Certificates
representing a number of Rights equal to the number of Shares being tendered
herewith must be delivered to the Depositary (as defined below) or, if
available, a Book-Entry Confirmation (as defined herein) received with respect
thereto, in order for the Shares tendered herewith to be validly tendered. If
the Distribution Date has occurred and Rights Certificates have not been
distributed prior to the time Shares and Rights are tendered herewith, the
undersigned agrees to deliver Rights Certificates representing a number of
Rights equal to the number of Shares tendered herewith to The Bank of New York
(the "Depositary") within five business days after the date such Rights
Certificates are distributed. A tender of shares without Rights Certificates
constitutes an agreement by the tendering stockholder to deliver Rights
Certificates representing a number of Rights equal to the number of Shares
tendered pursuant to the Offer to the Depositary within five business days after
the date such Rights Certificates are distributed. The undersigned understands
that if the Rights are not redeemed the Purchaser reserves the right to require
that the Depositary receive such Rights Certificates prior to accepting Shares
for payment. In that event, payment for Shares tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of, among other things, Rights Certificates, if Rights Certificates have been
distributed to holders of Shares.
Subject to, and effective upon, acceptance for payment for the Shares and
Rights tendered herewith in accordance with the terms of the Offer, the
undersigned hereby sells, assigns and transfers to, or upon the order of, the
Purchaser all right, title and interest in and to all of the Shares and Rights
that are being tendered hereby and any and all dividends, 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 the Purchaser or
nominee or transferee of the Purchaser on the Company's stock transfer records
of the Shares tendered herewith (collectively, a "Distribution"), and appoints
the Depositary the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares and Rights (and any Distribution) with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest) to (a) deliver such Share Certificates (as defined
herein) and Rights Certificates (and any Distribution) or transfer ownership of
such Shares and Rights (and any Distribution) 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 and Rights (and any Distributions) for transfer on the books
of the Company and (c) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares and Rights (and any Distribution), all in
accordance with the terms and subject to the conditions of the Offer.
<PAGE>
The undersigned irrevocably appoints designees of the Purchaser as such
stockholder's proxy, with full power of substitution, to the full extent of such
stockholder's rights with respect to the Shares and Rights tendered by such
stockholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities issued or issuable in respect of such
Shares on or after April 3, 1995. Such appointment will be effective when, and
only to the extent that, the Purchaser accepts such Shares for payment. Upon
such acceptance for payment, all prior proxies given by such stockholder with
respect to such Shares and Rights (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 designees of the 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 written consent in lieu of any
such meeting or otherwise. The Purchaser reserves the right to require that, in
order for Shares and Rights to be deemed validly tendered, immediately upon the
Purchaser's payment for such Shares the Purchaser must be able to exercise full
voting rights with respect to such Shares and Rights.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the Shares and
Rights tendered hereby (and any Distribution) and (b) when the Shares and Rights
are accepted for payment by the Purchaser, the Purchaser will acquire good,
marketable and unencumbered title to the Shares and Rights (and any
Distribution), 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, will execute and deliver any additional documents
deemed by the Depositary or the Purchaser to be necessary or desirable to
complete the sale, assignment and transfer of the Shares and Rights tendered
hereby (and any Distribution). In addition, the undersigned shall promptly remit
and transfer to the Depositary for the account of the Purchaser any and all
Distributions in respect of the Shares and Rights tendered hereby, accompanied
by appropriate documentation of transfer; and pending such remittance or
appropriate assurance thereof, the Purchaser will be, subject to applicable law,
entitled to all rights and privileges as owner of any such Distribution and may
withhold the entire purchase price or deduct from the purchase price the amount
or value thereof, as determined by the Purchaser in its sole discretion.
All authority herein conferred or agreed to be conferred shall not be
affected by and shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned.
Tenders of Shares and Rights made pursuant to the Offer are irrevocable,
except that Shares and Rights tendered pursuant to the Offer may be withdrawn at
any time prior to the Expiration Date (as defined in the Supplement) and, unless
theretofore accepted for payment by the Purchaser pursuant to the Offer, may
also be withdrawn at any time after June 1, 1995. See Section 4 of the Offer to
Purchase.
The undersigned understands that tenders of Shares and Rights pursuant to
any of the procedures described in 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 that the undersigned owns the
Shares and Rights being tendered.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the check for the purchase price and/or issue or return any
certificate(s) for Shares and Rights not tendered or not accepted for payment in
the name(s) of the registered holder(s) appearing under "Description of Shares
Tendered" and "Description of Rights Tendered", respectively. Similarly, unless
otherwise indicated herein under "Special Delivery Instructions", please mail
the check for the purchase price and/or any certificate(s) for Shares and Rights
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" and "Description of Rights Tendered",
respectively. 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 and Rights 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 and Rights
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 the Purchaser has no
obligation, pursuant to the Special Payment Instructions, to transfer any Shares
or Rights from the name(s) of the registered holder(s) thereof if the Purchaser
does not accept for payment any of the Shares or Rights so tendered.
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares and Rights not tendered or not
accepted for payment and/or the check for the purchase price of Shares and
Rights accepted for payment are to be issued in the name of someone other than
the undersigned or if Shares or Rights tendered by book-entry transfer which are
not accepted for payment are to be returned by credit to an account maintained
at a Book-Entry Transfer Facility.
Issue: / / check / / certificates to:
Name............................................................................
(PLEASE PRINT)
Address.........................................................................
...............................................................................
(INCLUDE ZIP CODE)
...............................................................................
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 ON THE REVERSE SIDE)
Credit Shares and Rights tendered by book-entry transfer that are not accepted
for payment to (Check one):
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
...............................................................................
(DTC, MSTC OR PDTC ACCOUNT NO.)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares and Rights not tendered or not
accepted for payment and/or the check for the purchase price of Shares and
Rights accepted for payment are to be sent to someone other than the undersigned
or to the undersigned at an address other than that shown above.
Mail: / / check / / certificates to:
Name............................................................................
(PLEASE PRINT)
Address.........................................................................
...............................................................................
(INCLUDE ZIP CODE)
...............................................................................
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 ON THE REVERSE SIDE)
<PAGE>
SIGN HERE
AND COMPLETE SUBSTITUTE FORM W-9 ON REVERSE
SIGN HERE SIGN HERE
....................................................................
....................................................................
(SIGNATURE(S) OF HOLDER(S))
Dated:........................................................, 1995
(Must be signed by the registered holder(s) exactly as name(s)
appear(s) on Share Certificate(s) or Rights Certificate(s) or on a
security position listing or by person(s) authorized to become
registered holder(s) by certificates and documents transmitted
herewith. If signature is by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, please provide the
following information and see Instruction 5.)
Name(s).............................................................
....................................................................
(PLEASE PRINT)
Capacity (Full Title)...............................................
Address.............................................................
....................................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number......................................
Tax Identification or
Social Security No. ................................................
COMPLETE SUBSTITUTE FORM W-9 ON REVERSE
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature................................................
Name................................................................
Name of Firm........................................................
(PLEASE PRINT)
Address.............................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number......................................
Dated:....................................................... , 1995
<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 and Rights (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 and/or
Rights) 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 and/or Rights 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 the Securities
Transfer Agents Medallion Program (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. Share Certificates, 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 this Letter of Transmittal
(or a facsimile hereof), properly completed and duly executed, 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 the Supplement) and, unless and until the
Rights have been redeemed, Rights Certificates or timely confirmation of a
book-entry transfer of Rights into the Depositary's account at a Book-Entry
Transfer Facility, if available (together with, if Rights are forwarded
separately from Shares, a properly completed and duly executed Letter of
Transmittal (or a facsimile hereof) with any required signature guarantees, or
an Agent's Message in the case of a book-entry delivery, 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 or, if later,
within five business days after the date such Rights Certificates are
distributed. Stockholders whose Share Certificates or Rights Certificates are
not immediately available (including Rights Certificates that have not yet been
distributed by the Company) or who cannot deliver their Share Certificates or
Rights Certificates and all other required documents to the Depositary prior to
the Expiration Date or who cannot complete the procedure for delivery by
book-entry transfer on a timely basis may tender their Shares and Rights 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 prior to the Expiration Date; (iii) the Share
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; and (iv) the Rights Certificates, if issued, representing the
appropriate number of Rights or a Book Entry Confirmation, if available, in each
case together with a properly completed and duly executed Letter of Transmittal
(or a facsimile thereof), with any required signature guarantees (or, in the
case of a book-entry delivery, an Agent's Message) and any other documents
required by this Letter of Transmittal, must be received by the Depositary
within five NYSE trading days after the date of execution of such Notice of
Guaranteed Delivery or, if later, five NYSE trading days after Rights
Certificates are distributed to stockholders, all as provided in Section 3 of
the Offer to Purchase. If Share Certificates and Rights Certificates are
forwarded separately to the Depositary, a properly completed and duly executed
Letter of Transmittal must accompany each such delivery.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES OR OF RIGHTS 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 and Rights 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 and Rights for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and Rights and any other
required information should be listed on a separate signed schedule attached
hereto.
4. PARTIAL TENDERS. (Not Applicable to Book-Entry Stockholders) If fewer
than all the Shares evidenced by any Share 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". If fewer than all the Rights evidenced by
any Rights Certificates submitted are to be tendered, fill in the number of
Rights which are to be tendered in the box entitled "Number of Rights Tendered".
In such cases, new Share Certificates or Rights Certificates, as the case may
be, for the Shares or Rights that were evidenced by your old Share Certificates
or Rights Certificates, but 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
Share Certificates and all Rights represented by Rights 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
and Rights 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.
<PAGE>
If any of the Shares and Rights 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 and Rights 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 so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares and Rights 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 or Rights 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 holder(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.
If Rights Certificates have been distributed to holders of Shares, such
holders are required to tender Rights Certificate(s) representing a number of
Rights equal to the number of Shares tendered in order to effect a valid tender
of such Shares. It is necessary that stockholders follow all signature
requirements of this Instruction 5 with respect to the Rights in order to tender
such Rights.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6,
the Purchaser will pay any stock transfer taxes with respect to the transfer and
sale of Shares and Rights to it or its order pursuant to the Offer. If, however,
payment of the purchase price is to be made to, or if certificate(s) for Shares
and Rights not tendered or accepted for payment are to be registered in the name
of, any person other than the registered holder(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 holder(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.
Except as otherwise provided in this Instruction 6, it will not be necessary
for transfer tax stamps to be affixed to the certificate(s) listed in this
Letter of Transmittal.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares and Rights 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 Book-Entry Stockholder may request that Shares and/or Rights not
accepted for payment be credited to such account maintained at a Book-Entry
Transfer Facility as such Book-Entry Stockholder may designate under "Special
Payment Instructions". If no such instructions are given, such Shares or Rights
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 may be waived by the
Purchaser in whole or in part at any time and from time to time in its sole
discretion.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a stockholder whose tendered Shares or Rights are accepted for payment
is required to provide the Depositary with such stockholder's correct taxpayer
identification number ("TIN") 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 or Rights purchased
pursuant to the Offer may be subject to 31% 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% 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.
<PAGE>
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 and Rights or of the last transferee appearing on the transfers attached
to, or endorsed on, the Shares and Rights. If the Shares or Rights 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, the Supplement, 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 or Rights has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary. The stockholder will then be instructed as to
the steps that must be taken in order to replace the certificate. 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.
<PAGE>
PAYER'S NAME: THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
SUBSTITUTE
PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security Number
THE RIGHT AND CERTIFY BY SIGNING AND or Employer
DATING BELOW. Identification Number
</TABLE>
FORM W-9
Department of the Treasury,
Internal Revenue Service
<TABLE>
<S> <C>
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION
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 (the "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 witholding you received another
notification from the IRS that you are no longer subject to backup
withholding, do not cross out such Item (2).
</TABLE>
<TABLE>
<S> <C> <C>
PART 3--
SIGN HERE Signature..............................
Awaiting TIN / /
Date.............................., 1995
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR 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.
<TABLE>
<CAPTION>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
<S> <C>
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% of all reportable payments made
to me will be withheld.
Signature .................................... Date .................................... , 1995
</TABLE>
<PAGE>
The Information Agent for the Offer is:
[GEORGESON & COMPANY INC.]
Wall Street Plaza
New York, New York 10005
1-800-223-2064 (Toll Free)
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4723 (Call Collect)
April 12, 1995
NOTICE OF GUARANTEED DELIVERY
TO
TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLARK EQUIPMENT COMPANY
As set forth in Section 3 of the Offer to Purchase described below, this
instrument or one substantially equivalent hereto must be used to accept the
Offer (as defined below) if certificates for Shares (as defined below) or the
associated Preferred Stock Purchase Rights issued by the Company (the "Rights")
are not immediately available or the certificates for Shares or Rights and all
other required documents cannot be delivered to the Depositary prior to the
Expiration Date (as defined in the Supplement described below) or if the
procedure for delivery by book-entry transfer cannot be completed on a timely
basis. This instrument may be delivered by hand or transmitted by facsimile
transmission or mail to the Depositary.
<TABLE>
<S> <C> <C>
The Depositary for the Offer
is:
THE BANK OF NEW YORK
By Mail: By Facsimile Transmission: By Hand or Overnight Delivery:
Tender & Exchange Department (for Eligible Institutions Tender & Exchange Department
P.O. Box 11248 only) 101 Barclay Street
Church Street Station (212) 815-6213 Receive and Deliver Window
New York, NY 10286-1248 Confirm by Telephone: New York, NY 10286
(800) 507-9357
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box in the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to CEC Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Ingersoll-Rand Company, a New
Jersey corporation, upon the terms and subject to the conditions set forth in
the Offer to Purchase dated April 3, 1995 (the "Offer to Purchase"), as amended
and supplemented by the Supplement thereto dated April 12, 1995 (the
"Supplement"), and in the related Letter of Transmittal (which together
constitute the "Offer"), receipt of which is hereby acknowledged, the number of
shares of Common Stock, $7.50 par value per share (the "Shares"), and the number
of Rights indicated below of Clark Equipment Company, a Delaware corporation,
pursuant to the guaranteed delivery procedure set forth in Section 3 of the
Offer to Purchase.
<PAGE>
Signature(s) ............................Address(es) ...........................
Name(s) of Record Holders
.............................
ZIP CODE
...............................................................................
PLEASE TYPE OR PRINT
Area Code and Tel. No(s) ....
Check one box if Shares and
Rights will be
Number of Shares and Rights ....................................................
tendered by book-entry
transfer)
Certificate Nos. (If Available)
/ / The Depository Trust
Company
.........................................
/ / Midwest Securities Trust
Company
.........................................
/ / Philadelphia Depository
Trust Company
Dated .............................., 1995
Account Number ..............
.............................
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which 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, (a) represents that the above
named person(s) "own(s)" the Shares and/or Rights tendered hereby within the
meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended
("Rule 14e-4"), (b) represents that such tender of Shares complies with Rule
14e-4, (c) guarantees to deliver to the Depositary either the certificates
evidencing all tendered Shares, in proper form for transfer, or to deliver
Shares pursuant to the procedure for book-entry transfer 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"), in either case together with the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined in the Offer to Purchase)
in the case of a book-entry delivery, and any other required documents, all
within five New York Stock Exchange, Inc. ("NYSE") trading days after the date
hereof and (d) guarantees, if applicable, to deliver certificates representing
the Rights ("Rights Certificates") in proper form for transfer, or to deliver
such Rights pursuant to the procedure for book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility together with, if Rights
are forwarded separately, the Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed with any required signature guarantees or
an Agent's Message (as defined in the Offer to Purchase) in the case of a
book-entry delivery, and any other required documents, all within five NYSE
trading days after the date hereof or, if later, five business days after Rights
Certificates are distributed to holders of Shares.
...............................................................................
NAME OF FIRM AUTHORIZED SIGNATURE
.....................................Name .....................................
ADDRESS PLEASE TYPE OR PRINT
.....................................Title ....................................
ZIP CODE
AREA CODE AND TEL. NO. .....................Dated ....................... , 1995
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR RIGHTS WITH THIS NOTICE.
CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK
10281-1305
(212) 236-4723 (CALL
COLLECT)
[MERRILL LYNCH LOGO]
CEC ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INGERSOLL-RAND COMPANY
HAS AMENDED ITS TENDER OFFER
TO INCREASE THE CASH PURCHASE PRICE FOR
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLARK EQUIPMENT COMPANY
TO
$86.00 NET PER SHARE
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY,
MAY 5, 1995, UNLESS FURTHER EXTENDED.
April 12, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by CEC Acquisition Corp., a Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of Ingersoll-Rand Company, a New
Jersey corporation (the "Parent"), to act as Dealer Manager in connection with
the Purchaser's offer to purchase for cash all the outstanding shares of Common
Stock, par value $7.50 per share (the "Shares"), of Clark Equipment Company, a
Delaware corporation (the "Company"), and the associated Preferred Stock
Purchase Rights issued by the Company (the "Rights") at a purchase price of
$86.00 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
April 3, 1995 (the "Offer to Purchase"), as amended and supplemented by the
Supplement thereto dated April 12, 1995 (the "Supplement") and in the related
Letter of Transmittal (which together constitute the "Offer") enclosed herewith.
Unless the context otherwise requires, all references to Shares shall include
the associated Rights. Holders of Shares 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 (as
defined below) prior to the Expiration Date (as defined in the Supplement), or
who cannot complete the procedures for book-entry transfer on a timely basis,
must tender their Shares according to the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase.
<PAGE>
[MERRILL LYNCH LOGO]
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Shares registered in your name or in the name of your
nominee.
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the expiration of the Offer a
number of Shares which, together with any Shares owned by the Parent and the
Purchaser, represents a majority of the total voting power of all shares of
capital stock of the Company outstanding 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 6 of the Supplement. The Offer is no longer subject to
the Supermajority Charter Condition, the Rights Condition or the Delaware
Takeover Statute Condition described in the Offer to Purchase.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated April 3, 1995 and the Supplement, dated
April 12, 1995.
2. The revised blue Letter of Transmittal to tender Shares for your use
and for the information of your clients. Facsimile copies of the Letter of
Transmittal may be used to tender Shares.
3. The revised green Notice of Guaranteed Delivery for Shares and Rights
to be used to accept the Offer if Share Certificates or Rights Certificates
are not immediately available or if such certificates and all other required
documents cannot be delivered to The Bank of New York (the "Depositary") by
the Expiration Date or if the procedure for book-entry transfer cannot be
completed by the Expiration Date.
4. A revised gray printed form of letter which may be sent to your
clients for whose accounts you hold Shares registered in your name or in the
name of your nominee, with space provided for obtaining such clients'
instructions with regard to the Offer.
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
6. A return envelope addressed to The Bank of New York, the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, MAY 5, 1995 UNLESS THE OFFER IS
FURTHER EXTENDED.
<PAGE>
[MERRILL LYNCH LOGO]
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 Letter of Transmittal and the
Offer to Purchase.
While the Letter of Transmittal previously circulated with the Offer to
Purchase refers only to the Offer to Purchase, stockholders using such document
to tender their Shares will nevertheless receive $86.00 per Share for each Share
validly tendered and not properly withdrawn and accepted for payment pursuant to
the Offer, subject to the conditions of the Offer.
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.
The Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than the Dealer Manager, the Depositary and Georgeson &
Company 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, Pierce, Fenner & Smith Incorporated, the Dealer Manager, or the
Information Agent, at their respective addresses and telephone numbers set forth
on the back cover of the Offer to Purchase. 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.
CEC ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INGERSOLL-RAND COMPANY
HAS INCREASED THE PRICE OF ITS
TENDER OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLARK EQUIPMENT COMPANY
TO
$86.00 NET PER SHARE
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY,
MAY 5, 1995, UNLESS FURTHER EXTENDED.
To Our Clients:
Enclosed for your consideration is the Offer to Purchase dated April 3, 1995
(the "Offer to Purchase"), a Supplement thereto dated April 12, 1995 (the
"Supplement") and the related Letter of Transmittal relating to an offer by CEC
Acquisition Corp., a Delaware corporation (the "Purchaser") and a wholly owned
subsidiary of Ingersoll-Rand Company, a New Jersey corporation (the "Parent"),
to purchase all of the outstanding shares of Common Stock, $7.50 par value per
share (the "Shares"), of Clark Equipment Company, a Delaware corporation (the
"Company"), and the associated Preferred Stock Purchase Rights issued by the
Company (the "Rights") at a purchase price of $86.00 per Share (and associated
Right), 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 the Supplement, and in the related Letter of Transmittal (which
together constitute the "Offer"). Unless the context requires otherwise, all
references to "Shares" shall be deemed to refer also to the associated Rights.
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 to Purchase as
amended and supplemented by the Supplement. Your instructions to tender Shares
held by us for your account will also constitute a direction to us to tender a
number of Rights held by us for your account equal to the number of Shares
tendered.
Your attention is directed to the following:
1. The tender price is $86.00 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 will expire at 12:00 Midnight, New
York City time, on Friday, May 5, 1995 unless the Offer is further extended.
<PAGE>
4. The Offer is conditioned upon, among other things, there being
validly tendered and not properly withdrawn prior to the expiration of the
Offer a number of Shares which, together with any Shares owned by the Parent
or the Purchaser, represents a majority of the total voting power of all
shares of capital stock of the Company outstanding 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 6 of the Supplement. The Offer
is no longer subject to the Supermajority Charter Condition, the Rights
Condition or the Delaware Takeover Statute Condition described in the Offer
to Purchase.
5. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to the
Offer.
The Offer is being made solely by the Offer to Purchase, as amended and
supplemented by the Supplement, and the related Letter of Transmittal and is
being made to all holders of Shares. The Purchaser is not aware of any state
where the making of the Offer is prohibited by administrative or judicial action
pursuant to any valid state statute. If the Purchaser becomes aware of any valid
state statute prohibiting the making of the Offer or the acceptance of Shares
pursuant thereto, the Purchaser will make a good faith effort to comply with any
such state statute. If, after such good faith effort, the Purchaser cannot
comply with such state statute, the Offer will not be made to nor will tenders
be accepted from or on behalf of the holders of Shares in such state. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of the Purchaser by 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.
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 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 $86.00 per Share. See Section 4 of
the Offer to Purchase for the procedures for withdrawing Shares tendered
pursuant to the Offer.
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
CLARK EQUIPMENT COMPANY
The undersigned acknowledge(s) receipt of your letter enclosing the Offer to
Purchase dated April 3, 1995 (the "Offer to Purchase"), the Supplement thereto
dated April 12, 1995 (the "Supplement") and the related Letter of Transmittal
pursuant to an offer by CEC Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Ingersoll-Rand Company, a New Jersey corporation, to
purchase all outstanding shares of Common Stock, $7.50 par value per share (the
"Shares"), of Clark Equipment Company, a Delaware corporation, and the
associated Preferred Stock Purchase Rights (the "Rights").
This will instruct you to tender the number of Shares and Rights indicated
below (or, if no number is indicated below, all Shares and Rights) which are
held by you for the account of the undersigned, upon the terms and subject to
the conditions set forth in the Offer to Purchase, as amended and supplemented
by the Supplement, and in the related Letter of Transmittal furnished to the
undersigned.
<TABLE>
<S> <C>
Number of Shares (and Rights) to be SIGN HERE
Tendered* ..........................................
.......................Shares (and Rights) ..........................................
Dated......................................, Signature(s)
1995 ..........................................
Please print names(s)
..........................................
Address
..........................................
Area Code and Telephone Number
..........................................
Tax Identification or Social Security Number
</TABLE>
- ------------
* Unless otherwise indicated, it will be assumed that all of your Shares (and
Rights) held by us for your account are to be tendered.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens; i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
- ------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE
SOCIAL SECURITY
NUMBER OF--
- ------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals The actual owner of
(joint account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife (joint The actual owner of
account) the account or, if
joint funds, either
person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if the
account) minor is the only
contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee incompetent person(3)
for a designated ward,
minor or incompetent
person
7. a. The usual revocable The grantor-trustee(1)
savings trust
account (grantor is
also trustee)
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under State law
8. Sole proprietorship The owner(4)
account
- ------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE EMPLOYER
IDENTIFICATION
NUMBER OF--
- ------------------------------------------------------
9. A valid trust, estate, The legal entity (Do
or pension trust not furnish the
identifying number of
the personal
representative or
trustee unless the
legal entity itself is
not designated in the
account title.)(5)
10. Corporate account The corporation
11. Religious charitable, The organization
or educational
organization account
12. Partnership account The partnership
held in the name of the
business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or nominee
nominee
15. Account with the The public entity
Department of
Agriculture in the name
of a public entity
(such as a State or
local government,
school district, or
prison) that receives
agricultural program
payments
- ------------------------------------------------------
- ------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEE EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
. An international organization or any agency, or instrumentality thereof.
. A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An exempt charitable remainder trust, or a nonexempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of 1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee
Payments of interest to generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER, IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file a tax return. Beginning January 1, 1984, payers must generally
withhold 20% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is being made solely by the Offer to Purchase dated
April 3, 1995, the Supplement thereto dated April 12, 1995 and the related
Letter of Transmittal and is being made to all holders of Shares. The
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to 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.
CEC Acquisition Corp.
a wholly owned subsidiary of
Ingersoll-Rand Company
Has Amended its Tender Offer to Increase
the Cash Purchase Price for
All Outstanding Shares of Common Stock
(including the Associated Preferred Stock Purchase Rights)
of
Clark Equipment Company
to
$86 Net Per Share
CEC Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Ingersoll-Rand Company, a New Jersey corporation
(the "Parent"), is now offering to purchase all of the outstanding shares of
common stock, $7.50 par value per share (the "Shares"), of Clark Equipment
Company, a Delaware corporation (the "Company"), and the associated Preferred
Stock Purchase Rights issued by the Company (the "Rights"), at a purchase price
of $86.00 per Share (and associated Right) 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 April 3, 1995 (the "Offer to Purchase"), as amended and
supplemented by the Supplement thereto dated April 12, 1995 (the "Supplement")
and in the related Letter of Transmittal (which together constitute the
"Offer"). Unless the context requires otherwise, all references to Shares shall
be deemed to refer also to the associated Rights. Shares previously tendered and
not properly withdrawn constitute valid tenders for purposes of the Offer.
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY, ON FRIDAY , MAY 5, 1995, UNLESS FURTHER EXTENDED.
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the expiration of the Offer a
number of Shares which, together with any Shares owned by the Parent and the
Purchaser, represents a majority of the total voting power of all shares of
capital stock of the Company outstanding 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 6 of the Supplement.
The Offer is being amended and supplemented pursuant to an Agreement and
Plan of Merger dated as of April 9, 1995 (the "Merger Agreement") among the
Parent, 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 $77.00 per Share to $86.00 per Share, (ii) the amendment and
restatement of certain conditions to the Offer as set forth in their entirety
in Section 6 of the Supplement, (iii) the extension of the Offer to Friday,
May 5, 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 the Parent, the Purchaser or any other direct or indirect
subsidiary of the Parent 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 $86.00 per Share in cash without interest
thereon, less any applicable withholding taxes.
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
Depositary (as defined in the Supplement) of the Purchaser's acceptance for
payment of such Shares pursuant to the Offer. 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 procedures set forth in 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 further the period during which the Offer is open for any
reason, including the occurrence of any of the events specified in Section 6
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
Friday, May 5, 1995, unless and until the Purchaser 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.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
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 June 1,
1995. For a withdrawal to be effective, a written telegraphic, telex 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. 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) unless such Shares have been 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 3 of the Offer to Purchase,
any notice of withdrawal must specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares, in which
case a notice of withdrawal will be effective if delivered to the Depositary by
any method of delivery described in the second sentence of this paragraph. 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.
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, is contained in the Offer to Purchase, as amended and supplemented by
the Supplement, and is incorporated herein by reference.
The Company has provided the Purchaser with the Company's stockholder
lists and security position listings for the purpose of disseminating the Offer
to holders of Shares. The Offer to Purchase, the Supplement, the revised Letter
of Transmittal and other relevant materials will be mailed to record holders of
Shares whose names appear on the Company's stockholder list and will be
furnished 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 Letter 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, the related Letter 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:
[GEORGESON &
COMPANY INC. LOGO]
Wall Street Plaza
New York, New York 10005
Banks and Brokers call collect (212) 440-9800
Call Toll Free: 1-800-223-2064
The Dealer Manager for the Offer is:
Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4723 (Call Collect)
April 12, 1995
The Chase Manhattan Bank, N.A.
1 Chase Plaza, 5th Floor
New York, New York 10081
April 10, 1995
[CHASE LOGO]
SUPPLEMENTAL COMMITMENT LETTER
Ingersoll-Rand Company
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey
Attention: Thomas F. McBride --
Senior Vice President and
Chief Financial Officer
Ladies and Gentlemen:
Reference is made to the letter dated March 31, 1995
(the "Commitment Letter") from the Chase Manhattan Bank (National
-----------------
Association) ("Chase") to you relating to the Facility referred
-----
to therein. This letter supplements the Commitment Letter and
incorporates its provisions by reference. Terms used but not
defined herein shall have the respective meanings given to such
terms in the Commitment Letter, or, if not defined therein, in
the Term Sheet attached as Exhibit A thereto.
You have advised Chase of the possibility of an
increase in the initial purchase price per share under the Tender
Offer, in which case total senior bank financing of up to
$1,500,000,000 in the aggregate may be required to finance the
consummation of the Transactions. Chase is pleased to offer a
commitment to provide the full amount of such increased financing
on the same terms and conditions described in the Commitment
Letter, in the Term Sheet, and the Fee Letter.
This letter is delivered to you upon the condition
that, prior to your acceptance of this offer, neither the
existence of this letter, the Commitment Letter, the Term Sheet,
the Fee Letter nor any of their contents shall be disclosed by
you except (i) as may be compelled to be disclosed in a judicial
or administrative proceeding or as otherwise required by law or
(ii) on a confidential and "need to know" basis, to your
directors, officers, employees, advisors and agents.
Chase's offer set forth in this letter and the
Commitment Letter will terminate at 5:00 p.m. (New York City
time) on April 14, 1995 unless you accept this letter, the
Supplemental Commitment Letter
------------------------------
<PAGE>
- 2 -
Commitment Letter, the Fee Letter and the Supplemental Fee Letter
at or prior to that time by signing and returning to Chase
counterparts of this letter, the Commitment Letter, the Fee
Letter and the Supplemental Fee Letter. Chase's commitment under
this letter, if accepted by you, will in any event terminate at
5:00 p.m. (New York City time) on August 31, 1995 if Tender Offer
Closing Date and the initial borrowing under the Facility shall
not have occurred on or prior to such date.
This letter may be executed in any number of
counterparts, each of which shall be an original and all of
which, when taken together, shall constitute one agreement, and
this letter may not be assigned by you without the prior written
consent of Chase and may not be amended or any provision hereof
or thereof waived or modified except by an instrument in writing
signed by each of the parties hereto. No person or entity
(including, without limitation, Target and its affiliates) other
than the parties hereto shall have any rights under or be
entitled to rely upon this letter.
This letter shall be governed by and construed in
accordance with the law of the State of New York.
We look forward to working with you to complete the
Transactions.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Patricia B. Bril
----------------------------
Title: Managing Director
ACCEPTED AND AGREED:
INGERSOLL-RAND COMPANY
By /s/ Thomas F. McBride
----------------------------
Title:
Date: April 10, 1995
Supplemental Commitment Letter
------------------------------
Richard J. Holwell (RJH-5098)
Robert M. Kelly (RMK-7204)
WHITE & CASE
1155 Avenue of the Americas
New York, New York 10036
Telephone: (212) 819-8200
Attorneys for Plaintiff
Clark Equipment Company
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
:
CLARK EQUIPMENT COMPANY, : 95 Civ. 2130 (CSH)
:
Plaintiff, :
:
-against- :
:
INGERSOLL-RAND COMPANY : NOTICE OF DISMISSAL
-------------------
:
Defendant. :
:
------------------------------x
PLEASE TAKE NOTICE that, pursuant to Rule 41(a)(1) of
the Federal Rules of Civil Procedure, plaintiff, Clark Equipment
Company, hereby dismisses the above-referenced action without
prejudice and without costs to any party.
Dated: New York, New York
April 10, 1995
WHITE & CASE
By: /s/ Robert M. Kelly
-----------------------------
Richard J. Holwell (RJH-5098)
Robert M. Kelly (RMK-7204)
1155 Avenue of the Americas
New York, New York 10036
Telephone (212) 819-8200
Attorneys for Plaintiff
Clark Equipment Company
