<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 6)
AND
SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 8)
----------------
JOSLYN CORPORATION
(NAME OF SUBJECT COMPANY)
TK ACQUISITION CORPORATION
DANAHER CORPORATION
(BIDDER)
COMMON STOCK, PAR VALUE $1.25 PER SHARE 48107010
(INCLUDING THE ASSOCIATED RIGHTS) (CUSIP NUMBER OF
(TITLE OF CLASS OF SECURITIES) CLASS OF SECURITIES)
PATRICK W. ALLENDER
TK ACQUISITION CORPORATION
C/O DANAHER CORPORATION
1250 24TH STREET, N.W., SUITE 800
WASHINGTON, D.C. 20037
TELEPHONE: (202) 828-0850
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPY TO:
MEREDITH M. BROWN, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 909-6000
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<PAGE>
Danaher Corporation and TK Acquisition Corporation hereby amend and supplement
their Tender Offer Statement on Schedule 14D-1 filed on July 24, 1995 (as
amended, the "Schedule 14D-1"), as set forth in this Amendment No. 6, with
respect to the offer to purchase all of the outstanding shares of Common Stock,
$1.25 par value per share, of Joslyn Corporation, an Illinois corporation,
including the associated common stock purchase rights, upon the terms and
conditions set forth in the Offer to Purchase, as amended and supplemented by
the Supplement to the Offer to Purchase dated August 22, 1995 (the
"Supplement"), and the Revised Letter of Transmittal (which, together, as
amended from time to time, constitute the "Offer"), which Offer to Purchase,
Supplement and Revised Letter of Transmittal have been annexed to and filed with
the Schedule 14D-1 as Exhibits (a)(1) and (a)(11) and (a)(12), respectively.
Unless otherwise indicated, capitalized terms used herein without definition
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) is hereby amended and supplemented by the following: the
information set forth in the Introduction and Section 1 ("Amended Terms of the
Offer") of the Supplement, which information is incorporated herein by reference
in its entirety.
Paragraph 1(c) is hereby amended and supplemented by the following: the
information set forth in Section 3 ("Price Range of Shares; Dividends") of the
Supplement, which information is incorporated herein by reference in its
entirety.
ITEM 3. PAST CONTRACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
Item 3 is hereby amended and supplemented as follows:
Paragraphs 3(a) and (b) are hereby amended and supplemented by the
following: the information set forth in
2
<PAGE>
Section 6 ("Background of the Amended Offer; Contacts with the Company Since
July 24, 1995"), Section 7 ("Purpose of the Offer; Plans for the Company") and
Section 8 ("The Merger Agreement") of the Supplement, which information is
incorporated herein by reference in its entirety.
3
<PAGE>
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 is hereby amended and supplemented as follows:
Paragraphs (a) and (b) are hereby amended and supplemented by the
following: the information contained in Section 10 ("Source and Amount of
Funds") of the Supplement, which information 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 hereby amended and supplemented as follows:
Paragraphs 5(a)-(g) are hereby amended and supplemented by the following:
the information set forth in Section 6 ("Background of the Amended Offer;
Contacts with the Company Since July 24, 1995"), Section 7 ("Purpose of the
Offer; Plans for the Company") and Section 8 ("The Merger Agreement") of the
Supplement, which information is incorporated herein by reference in its
entirety.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Item 7 is hereby amended and supplemented as follows:
The information set forth in the Introduction, Section 6 ("Background of
the Amended Offer; Contacts with the Company Since July 24, 1995"), Section 7
("Purpose of the Offer; Plans for the Company"), Section 8 ("The Merger
Agreement") and Section 10 ("Source and Amount of Funds") of the Supplement,
which information is hereby incorporated herein by reference in its entirety.
ITEM 10. ADDITIONAL INFORMATION.
Item 10 is hereby amended and supplemented as follows:
4
<PAGE>
Paragraphs 10(b), (c) and (e) are hereby amended and supplemented by the
following: the information set forth in the Introduction, Section 6 ("Background
of the Amended Offer; Contacts with the Company Since July 24, 1995"), Section 7
("Purpose of the Offer; Plans for the Company") and Section 11 ("Certain Legal
Matters") of the Supplement, which information is hereby incorporated herein by
reference in its entirety.
Paragraph 10(f) is hereby amended and supplemented by the following: the
information set forth in the Supplement and the revised Letter of Transmittal,
which is hereby 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 August 22, 1995.
11(a)(12) Revised Letter of Transmittal.
11(a)(13) Revised Notice of Guaranteed Delivery.
11(a)(14) Revised Letter from Dealer Manager to Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
11(a)(15) Revised Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
11(a)(16) Revised Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
5
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Danaher Corporation
/s/ Patrick W. Allender
By: _______________________________
Name: Patrick W. Allender
Title: Senior Vice President,
Chief Financial Officer
and Secretary
TK Acquisition Corporation
/s/ Patrick W. Allender
By: _______________________________
Name: Patrick W. Allender
Title: Vice President and
Treasurer
August 22, 1995
6
<PAGE>
EXHIBIT 11(a)(11)
SUPPLEMENT TO OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
JOSLYN CORPORATION
AT
AN INCREASED CASH PRICE OF
$34 NET PER SHARE
BY
TK ACQUISITION CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DANAHER CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, SEPTEMBER 1, 1995 UNLESS THE OFFER IS 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 THAT
NUMBER OF SHARES WHICH, WHEN AGGREGATED WITH THE SHARES CURRENTLY BENEFICIALLY
OWNED BY DANAHER CORPORATION ("PARENT"), REPRESENTS AT LEAST TWO-THIRDS OF THE
TOTAL NUMBER OF OUTSTANDING SHARES OF COMMON STOCK, PAR VALUE $1.25 PER SHARE
(THE "SHARES"), OF JOSLYN CORPORATION (THE "COMPANY") DETERMINED ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE (THE "MINIMUM CONDITION"). THE OFFER IS
ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN THE OFFER TO PURCHASE.
SEE "INTRODUCTION" AND SECTIONS 1 AND 9 OF THIS SUPPLEMENT.
----------------
THE COMPANY HAS REPRESENTED THAT 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 SHAREHOLDERS OF THE COMPANY, HAS
APPROVED THE OFFER AND THE MERGER AND RECOMMENDS THAT SHAREHOLDERS ACCEPT THE
OFFER AND TENDER THEIR SHARES.
----------------
SHARES PREVIOUSLY TENDERED AND NOT PROPERLY WITHDRAWN HAVE BEEN VALIDLY
TENDERED FOR PURPOSES OF THE OFFER.
----------------
IMPORTANT
Any shareholder desiring to tender all or any portion of his or her Shares,
and the associated Common Stock Purchase Rights (the "Rights"; unless the
context otherwise requires, the Rights are deemed to be included in all
references to the "Shares"), should either (i) complete and sign the Letter of
Transmittal (or a facsimile thereof) in accordance with the instructions in
the Letter of Transmittal and mail or deliver it together with the
certificate(s) representing tendered Shares ("Share Certificates") and any
other required documents, to the Bank of America Illinois (the "Depositary")
or tender such Shares pursuant to the procedures for book-entry transfer set
forth in Section 3 of the Offer to Purchase dated July 24, 1995 (the "Offer to
Purchase") or (ii) request his or her broker, dealer, commercial bank, trust
company or other nominee to effect the transaction for the shareholder. A
shareholder whose Shares are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if the shareholder
desires to tender such Shares.
A shareholder who desires to tender his or her Shares, and whose
certificates representing such Shares are not immediately available or who
cannot comply with the procedures for book-entry transfer on a timely basis,
may tender such Shares by following the procedures for guaranteed delivery set
forth in Section 3 of the Offer to Purchase.
Questions and requests for assistance may be directed to Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Dealer Manager") or D.F. King & Co.,
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 Revised GREEN Letter of
Transmittal, the Revised BLUE Notice of Guaranteed Delivery and other related
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks and trust companies.
THE DEALER MANAGER FOR THE OFFER IS:
MERRILL LYNCH & CO.
August 22, 1995
<PAGE>
To: All Holders of Shares of Common Stock of
Joslyn Corporation
INTRODUCTION
The following information amends and supplements the Offer to Purchase, dated
July 24, 1995 (the "Offer to Purchase"), of TK Acquisition Corporation, a
Delaware corporation (the "Purchaser"). The Purchaser is a wholly owned
subsidiary of DH Holdings Corp., a Delaware corporation ("DH Holdings"), which
in turn is a wholly owned subsidiary of Danaher Corporation, a Delaware
corporation ("Parent"). Pursuant to this Supplement to the Offer to Purchase
(the "Supplement"), the Purchaser is now offering to purchase all outstanding
shares of common stock, par value $1.25 per share (the "Shares"), of Joslyn
Corporation, an Illinois corporation (the "Company"), and the associated Common
Stock Purchase Rights (the "Rights;" unless the context otherwise requires, the
Rights are deemed to be included in all references to the "Shares") issued
pursuant to the Rights Agreement, dated as of February 10, 1988, and amended as
of September 2, 1994, between the Company and The First National Bank of
Chicago, an Illinois banking corporation, as Rights Agent (as the same may be
further amended, the "Rights Agreement"), at a purchase price of $34 per Share,
net to the seller in cash without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, as amended and
supplemented by this Supplement, and in the related Letters of Transmittal
(which together constitute the "Offer").
Except as otherwise set forth in this Supplement, the terms and conditions
previously set forth in the Offer to Purchase remain applicable in all respects
to the Offer, and the Supplement should be read in conjunction with the Offer
to Purchase. Unless the context requires otherwise, capitalized terms used
herein but not otherwise defined herein have the meaning given to such terms in
the Offer to Purchase.
The Purchaser, Parent, DH Holdings and the Company have entered into an
Agreement and Plan of Merger, dated as of August 20, 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 $32.00 per Share to
$34.00 per Share, net to the seller in cash without interest thereon, (ii) the
elimination of certain conditions to the Offer, (iii) the amendment and
restatement of the other conditions to the Offer as set forth in their entirety
in Section 9 of this Supplement, (iv) the extension of the Offer to 12:00
Midnight, New York City time, on Friday, September 1, 1995 and (v) the merger
of the Purchaser or another direct or indirect wholly owned subsidiary of
Parent with the Company (the "Merger") following the consummation of the Offer.
In the Merger, each Share not owned by the Purchaser, Parent or the Company (or
any of their respective wholly owned subsidiaries), and other than Dissenting
Shares (as such term is defined in the Merger Agreement), shall be converted
into the right to receive $34.00, net per Share in cash without interest
thereon. See Section 8 of this Supplement.
THE COMPANY HAS REPRESENTED THAT THE BOARD OF DIRECTORS OF THE COMPANY HAS
UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE SHAREHOLDERS OF THE COMPANY, HAS APPROVED THE OFFER AND
THE MERGER AND RECOMMENDS THAT THE SHAREHOLDERS ACCEPT THE OFFER AND TENDER
THEIR SHARES.
In the Merger Agreement, the Company represents and warrants to Parent, DH
Holdings and the Purchaser that the Company has taken all necessary corporate
action so that neither Parent nor the Purchaser nor any of their affiliates
will become an "Acquiring Person," that no "Triggering Event," "Section
11(a)(ii) Event," "Section 13 Event," "Stock Acquisition Date" or "Distribution
Date" (as such terms are defined in the Rights Agreement) will occur and that
neither Section 11 nor Section 13 of the Rights Agreement will be
<PAGE>
triggered, in each case as a result of the announcement, commencement or
consummation of the Offer, the execution or delivery of the Merger Agreement or
any amendment thereto, or the consummation of the transactions contemplated by
the Merger Agreement. The Company also represents and warrants in the Merger
Agreement that the Board of Directors of the Company has taken the appropriate
action such that Sections 7.85 and 11.75 of the Illinois Business Corporation
Act (the "Business Combination Law") will not apply to any of the transactions
contemplated by the Merger Agreement, including the Offer and the Merger.
THEREFORE, THE OFFER IS NO LONGER SUBJECT TO THE RIGHTS CONDITION OR THE
BUSINESS COMBINATION CONDITION INCLUDED IN THE OFFER TO PURCHASE. THE OFFER IS
NOW CONDITIONED UPON, AMONG OTHER THINGS, THE MINIMUM CONDITION OF THERE BEING
VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE
OFFER THAT NUMBER OF SHARES WHICH, WHEN AGGREGATED WITH THE 613,550 SHARES
CURRENTLY BENEFICIALLY OWNED BY PARENT, REPRESENTS AT LEAST TWO-THIRDS OF THE
TOTAL NUMBER OF OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF
PURCHASE. THE OFFER REMAINS SUBJECT TO CERTAIN OTHER TERMS AND CONDITIONS
CONTAINED HEREIN IN ADDITION TO THE MINIMUM CONDITION. SEE SECTION 9 OF THIS
SUPPLEMENT.
Procedures for tendering shares are set forth in Section 2 of this Supplement
and Section 3 of the Offer to Purchase.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Revised GREEN
Letter of Transmittal, stock transfer taxes on the purchase of Shares pursuant
to the Offer. However, any tendering shareholder or other payee who fails to
complete and sign the Substitute Form W-9 that is included in the Revised GREEN
Letter of Transmittal may be subject to a required backup federal income tax
withholding of 31% of the gross proceeds payable to such shareholder or other
payee pursuant to the Offer. See Section 3 of the Offer to Purchase. The
Purchaser will pay all charges and expenses of Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), which is acting as Dealer Manager in the
Offer (in such capacity, the "Dealer Manager"), Bank of America Illinois as
Depositary (the "Depositary"), and D.F. King & Co., Inc. as Information Agent
(the "Information Agent"), incurred in connection with the Offer. See Section
16 of the Offer to Purchase.
SHAREHOLDERS WHO HAVE PREVIOUSLY VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN
THEIR SHARES PURSUANT TO THE OFFER ARE NOT REQUIRED TO TAKE ANY FURTHER ACTION,
EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE OF SECTION 3 OF
THE OFFER TO PURCHASE IF SUCH PROCEDURE WAS UTILIZED. If Shares are accepted
for payment and paid for by the Purchaser pursuant to the Offer, such
shareholders will receive, subject to the conditions of the Offer, the
increased tender price of $34.00 per Share. See Section 4 of the Offer to
Purchase for the procedures to properly withdraw Shares tendered pursuant to
the Offer.
According to the representations and warranties of the Company contained in
the Merger Agreement, as of August 8, 1995, there were 7,195,240 Shares
outstanding, 887,276 Shares were reserved for issuance under the Company's
director and employee stock option plans and 302,588 Shares were subject to
options outstanding under the Company's stock option plans. Parent currently
beneficially owns an aggregate of 613,550 Shares, representing approximately
8.53% of the Shares outstanding on August 8, 1995. Based on this information,
the Minimum Condition will be satisfied if at least 4,385,002 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.
NEITHER THIS SUPPLEMENT NOR THE OFFER TO PURCHASE CONSTITUTES A SOLICITATION
OF A PROXY, CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO ANY MEETING OF THE
COMPANY'S SHAREHOLDERS OR ANY ACTION IN LIEU THEREOF.
2
<PAGE>
ANY SUCH SOLICITATION WHICH PARENT OR THE PURCHASER MAY MAKE WILL BE MADE ONLY
PURSUANT TO SEPARATE PROXY SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE
REQUIREMENTS OF SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
The Offer is conditioned upon the fulfillment or waiver of certain conditions
described herein. The Offer will expire at 12:00 Midnight, New York City time,
on Friday, September 1, 1995, unless extended.
THIS SUPPLEMENT SHOULD BE READ IN CONJUNCTION WITH THE OFFER TO PURCHASE AND
THE RELATED LETTER OF TRANSMITTAL, COPIES OF WHICH MAY BE OBTAINED IN THE
MANNER SET FORTH ON THE BACK COVER OF THIS SUPPLEMENT. THE OFFER TO PURCHASE,
THIS SUPPLEMENT AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION
WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
THE TENDER OFFER
1. AMENDED TERMS OF THE OFFER
Sections 1 and 14 of the Offer to Purchase are amended and supplemented by
this Section 1 of this Supplement.
In connection with the Merger Agreement, the price per Share to be paid
pursuant to the Offer has been increased from $32.00 per Share to $34.00 per
Share, net to the seller in cash without interest thereon. Upon the terms and
subject to the conditions of the Offer (including, if the Offer is further
extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will accept for payment and pay the increased price
for all Shares validly tendered prior to the Expiration Date (as defined
herein) and not properly withdrawn in accordance with the procedures set forth
in Section 4 of the Offer to Purchase (including Shares tendered prior to the
date of this Supplement). The term "Expiration Date" means 12:00 Midnight, New
York City time, on Friday, September 1, 1995 unless and until the Purchaser, in
its sole discretion, shall have extended the period of time for which the Offer
is open, in which event the term "Expiration Date" shall mean the time and date
at which the Offer, as so extended by the Purchaser, shall expire.
The Company has elected not to provide the Purchaser with the Company's
shareholder lists and security position listings for the purpose of
disseminating the Offer to the shareholders. This Supplement, the Revised GREEN
Letter of Transmittal and other relevant materials will be mailed by the
Company to record holders of Shares whose names appear on the Company's
shareholder 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 shareholder list or, if applicable, who are listed as
participants in a clearing agency's security position listing for subsequent
transmittal to beneficial owners of Shares.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, SATISFACTION OF THE
MINIMUM CONDITION AND OTHER CONDITIONS AS SET FORTH ABOVE IN THE INTRODUCTION
AND IN SECTION 9 OF THIS SUPPLEMENT. THE PURCHASER RESERVES THE RIGHT (BUT
SHALL NOT BE OBLIGATED) TO WAIVE ANY OR ALL OF SUCH CONDITIONS, EXCEPT THAT THE
PURCHASER MAY NOT WAIVE THE MINIMUM CONDITION. AS DESCRIBED IN SECTION 14 OF
THE OFFER TO PURCHASE, ANY SUCH WAIVER MAY REQUIRE A PUBLIC ANNOUNCEMENT OR
EXTENSION OF THE OFFER UNDER THE APPLICABLE RULES UNDER THE EXCHANGE ACT
REFERRED TO IN THE OFFER TO PURCHASE.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if Share Certificates are submitted representing more Shares than
are tendered, certificates representing unpurchased or untendered Shares will
be returned, without expense to the tendering shareholder (or, in the case of
Shares delivered by book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility pursuant to
3
<PAGE>
the procedures set forth in Section 3 of the Offer to Purchase, such Shares
will be credited to an account maintained within such Book-Entry Transfer
Facility), as promptly as practicable following the expiration, termination or
withdrawal of the Offer. In the event separate Rights Certificates are issued,
similar action will be taken with respect to unpurchased and untendered Rights.
The Purchaser reserves the right to transfer or assign, in whole or from time
to time in part, to Parent, or to one or more of Parent's subsidiaries or
affiliates, the right to purchase all or any portion of the Shares and Rights
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve the Purchaser of its obligations under the Offer or prejudice the
rights of tendering shareholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
2. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES
Section 3 of the Offer to Purchase is amended and supplemented by this
Section 2 of this Supplement.
Tendering shareholders should use the Revised GREEN Letter of Transmittal and
the Revised BLUE Notice of Guaranteed Delivery included with this Supplement.
However, to the extent either of the Revised GREEN Letter of Transmittal or the
Revised BLUE Notice of Guaranteed Delivery is not available, tendering
shareholders may continue to use the BLUE Letter of Transmittal and the GRAY
Notice of Guaranteed Delivery that were provided with the Offer to Purchase.
Although such BLUE Letter of Transmittal refers only to the Offer to Purchase
and indicates that the Offer will expire at 12:00 Midnight, New York City time,
on Friday, August 18, 1995, shareholders using such document to tender their
Shares will nevertheless receive $34.00 net per Share in cash for each Share
validly tendered and not properly withdrawn and accepted for payment pursuant
to the Offer, subject to the conditions of the Offer, and will be able to
tender their Shares pursuant to the Offer until 12:00 Midnight, New York City
time, on Friday, September 1, 1995 (or such later date to which the Offer may
be extended).
Shareholders who have previously validly tendered Shares pursuant to the
Offer using the BLUE Letter of Transmittal or the GRAY Notice of Guaranteed
Delivery and who have not properly withdrawn such Shares have validly tendered
such Shares for the purposes of the Offer, as amended, and need not take any
further action, except as may be required by the Guaranteed Delivery procedure
described in Section 3 of the Offer to Purchase if such procedure was utilized.
3. PRICE RANGE OF THE SHARES; DIVIDENDS
Section 6 of the Offer to Purchase is amended and supplemented by this
Section 3 of this Supplement.
The high and low sale prices per Share on the NASDAQ-NMS reported by
published financial sources from July 24, 1995, the date of the Offer to
Purchase, through August 21, 1995 were $38.25 and $33.875, respectively. On
August 18, 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 NASDAQ-NMS was $36. On August 21, 1995, the last full trading day prior to
the mailing of this Supplement, the closing sale price per Share reported on
the NASDAQ-NMS was $34.25.
SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
4. CERTAIN INFORMATION CONCERNING THE COMPANY
Section 8 of the Offer to Purchase is amended and supplemented by this
Section 4 of this Supplement.
After entering into the Confidentiality Agreement (as defined and described
in Section 6 of this Supplement), the Company provided certain nonpublic
business and financial information regarding the
4
<PAGE>
Company to Parent. This information included estimates and projections of the
Company's future operating performance (the "Projections").
The following information has been excerpted or derived from the materials
provided to Parent, which included projections prepared by compiling data from
profit plans prepared by operating management of the Company's different
business units, as well as adjusted projections prepared by senior management
after applying a contingency factor for downturns in the economy. The
Projections do not give effect to the Offer or the Merger. NONE OF THE COMPANY,
PARENT, THE PURCHASER OR THEIR RESPECTIVE ADVISORS ASSUMES ANY RESPONSIBILITY
FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE PROJECTIONS.
5
<PAGE>
JOSLYN CORPORATION
SELECTED FINANCIAL PROJECTIONS
(IN MILLIONS, EXCEPT OPERATING MARGIN AND PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31,
-------------------------------------------
1995 1996 1997 1998 1999
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
OPERATING MANAGEMENT PROJECTIONS
Net Sales.......................... $ 235.6 $ 261.5 $ 283.6 $ 303.6 $ 325.1
Operating Income................... $ 28.3 $ 34.9 $ 38.2 $ 42.2 $ 45.9
Operating Margin................... 12.0% 13.3% 13.5% 13.9% 14.1%
Net Income......................... $ 16.6 $ 20.1 $ 22.3 $ 24.7 $ 27.0
E.P.S.............................. $ 2.31 $ 2.79 $ 3.10 $ 3.43 $ 3.75
SENIOR MANAGEMENT ADJUSTED PROJECTIONS
Net Sales.......................... $ 235.6 $ 248.5 $ 269.6 $ 288.6 $ 309.1
Net Income......................... $ 16.6 $ 17.9 $ 19.8 $ 21.8 $ 23.8
E.P.S.............................. $ 2.31 $ 2.49 $ 2.75 $ 3.03 $ 3.30
</TABLE>
TO THE KNOWLEDGE OF PARENT AND THE PURCHASER, THE COMPANY DOES NOT AS A
MATTER OF COURSE PUBLICLY DISCLOSE PROJECTIONS OR ESTIMATES AS TO FUTURE
REVENUES, EARNINGS, FINANCIAL CONDITION OR OPERATING PERFORMANCE. THE
PROJECTIONS ARE INCLUDED IN THIS SUPPLEMENT ONLY BECAUSE SUCH INFORMATION WAS
FURNISHED TO PARENT AND THE PURCHASER BY THE COMPANY WITHOUT INDEPENDENT
VERIFICATION. THE PROJECTIONS WERE NOT PREPARED (NOR ARE THEY BEING FURNISHED)
WITH A VIEW TO COMPLIANCE WITH THE GUIDELINES ESTABLISHED BY THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION") OR THE AMERICAN INSTITUTE OF CERTIFIED
PUBLIC ACCOUNTANTS REGARDING PROJECTIONS AND FORECASTS.
THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS, ALL MADE BY COMPANY MANAGEMENT,
WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC, MARKET AND
FINANCIAL CONDITIONS AND OTHER MATTERS, ALL OF WHICH ARE DIFFICULT TO PREDICT
AND MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND NONE OF WHICH WAS
SUBJECT TO APPROVAL BY PARENT OR THE PURCHASER. ACCORDINGLY, THERE CAN BE NO
ASSURANCE THAT THE ASSUMPTIONS MADE IN PREPARING THE PROJECTIONS WILL BE
ACCURATE, AND ACTUAL RESULTS MAY BE MATERIALLY DIFFERENT FROM THOSE CONTAINED
IN THE PROJECTIONS. THE INCLUSION OF THE PROJECTIONS HEREIN SHOULD NOT BE
REGARDED AS AN INDICATION THAT ANY OF THE COMPANY, PARENT, THE PURCHASER OR
THEIR RESPECTIVE ADVISORS CONSIDERED OR CONSIDER THE PROJECTIONS TO BE MATERIAL
OR A RELIABLE PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS SHOULD NOT BE
RELIED ON AS SUCH.
NEITHER THE COMPANY, PARENT, THE PURCHASER NOR ANY OF THEIR ADVISORS HAS
MADE, OR MAKES, ANY REPRESENTATION TO ANY PERSON REGARDING THE INFORMATION
CONTAINED IN THE PROJECTIONS AND NONE OF THEM INTENDS TO UPDATE OR OTHERWISE
REVISE THE PROJECTIONS TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN
MADE OR TO REFLECT THE OCCURRENCE OF FUTURE EVENTS EVEN IN THE EVENT THAT ANY
OR ALL OF THE ASSUMPTIONS UNDERLYING THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
On July 19, 1995, the Company issued a press release announcing its results
for the quarter and six month period ended June 30, 1995. The press release
stated that second quarter net earnings increased 26%
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on a 6% increase in sales, and that, excluding a gain from the sale of
investments, net earnings for the quarter rose 19%.
The Company also stated:
Sales for the quarter ended June 30, 1995 increased to $57.5 million
compared with $54.5 million in the comparable quarter last year. Income
from business segments grew almost 10 percent to $7.0 million from $6.4
million in the second quarter of 1994. Net income was $4.2 million or $0.59
per share, an increase of 26 percent compared with $3.4 million or $0.47
per share recorded in the second quarter last year. Excluding a $236,000 or
$0.03 per share gain from the sale of investments, net income increased to
$4.0 million or $0.56 per share.
For the six month period, sales increased by 5 percent to $114.1 million
from $108.4 million in the prior year, and net income including gains on
the sale of investments grew to $7.7 million from $7.1 million, an increase
of 8 percent.
"Earlier this year, we announced initiatives to generate sales growth and
enhance operating profitability by focusing on our three core operating
units," said Lawrence G. Wolski, the Company's chief executive officer.
"These initiatives contributed to an improved performance in the second
quarter."
Several core units--including Joslyn Electronic Systems, Joslyn Clark
Controls and the Electrical Apparatus Division--reported sales gains in
excess of 10 percent and operating income of more than 20 percent. However,
Joslyn Power Products' sales declined due to a delay in switch orders from
a major utility customer.
Wolski noted these results were achieved despite widening losses at one
of the Company's non-core holdings, ADK Pressure Equipment. ADK's losses
created a pre-tax negative swing of approximately $300,000 in the second
quarter and $950,000 in the first half of 1995, compared with results
reported in the year-ago periods.
The Company said that Cyberex, a leading manufacturer of uninterruptible
power systems and static transfer switches acquired on June 28, 1995, is
expected to contribute to earnings in the second half of the year. "Demand
for "clean,' uninterruptible power is becoming more important as
microprocessors play a growing role in the industrial workplace. Cyberex
addresses this demand through its high-quality product line," Wolski said.
He noted there are many synergies between Cyberex's solid switch technology
and Joslyn's existing businesses.
As of June 30, 1995, the Company had cash and equivalents of $17 million
and a debt-free balance sheet. At its meeting today, the Board of Directors
declared a regular dividend of $0.30 per share, payable September 15, 1995,
to shareholders of record August 25, 1995.
On July 25, the Company issued the following press release relating to an
agreement to sell ADK Pressure Equipment:
Joslyn Corporation (Nasdaq: JOSL) today announced that it has signed a
definitive agreement to sell all of the common shares of ADK Pressure
Equipment Corporation to the McIntire Company, a subsidiary of Wm. Steinen
Mfg. Co. The sale is expected to close in early August. The sale price was
not announced. Joslyn does not expect to realize a loss as the result of
this transaction and may realize certain tax benefits not previously
recorded.
In 1994, ADK reported sales of less than $7 million.
"The sale of ADK is part of our strategy of divesting non-core operations
and focusing on our more profitable core businesses that offer strong
growth opportunities," said Lawrence G. Wolski, chief executive officer of
Joslyn.
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"Earlier this year, Joslyn announced initiatives to enhance sales growth
and improve profitability and increase shareholder value," said Wolski. "We
are now successfully executing that plan."
In the Company's recently reported second quarter, Joslyn posted a 19
percent gain in net earnings on a 6 percent increase in sales. The Company
also completed the acquisition of Cyberex, a leading manufacturer of
uninterruptible power systems and static transfer switches. "Cyberex offers
excellent growth opportunities and should contribute to earnings in the
second half of the year," continued Wolski.
According to the Company, the sale of ADK Pressure Equipment closed on August
7, 1995.
5. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT
Section 9 of the Offer to Purchase is amended and supplemented by this
Section 5 of this Supplement.
On August 8, 1995, Parent filed an amended Schedule 13D with the Commission
indicating that on August 4, 1995, Parent terminated its agreement to purchase
56% of the outstanding shares of Total Containment.
6. BACKGROUND OF THE AMENDED OFFER; CONTACTS WITH THE COMPANY SINCE
JULY 24, 1995
Section 10 of the Offer to Purchase is amended and supplemented by this
Section 6 of this Supplement.
On July 27, 1995, George M. Sherman, President and Chief Executive Officer of
Parent, received the following letter from William E. Bendix, currently
Chairman of the Board of Directors of the Company.
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July 27, 1995
Mr. George M. Sherman
President and Chief Executive Officer
Danaher Corporation
1250 24th Street, N.W.--Suite 300
Washington, D.C. 20037
Dear George:
As you know, because Danaher Corporation has now launched a tender offer, our
Board of Directors will shortly be compelled to state a position on the
transaction. In order that the Board can have before it full information before
stating its position, they have asked us and our advisors, among other things,
to meet with you and your advisors. In order to have a meaningful discussion
with you, we would be prepared to provide you with certain highly-focused, non-
public information, subject to an appropriate confidentiality agreement. Our
investment bankers are contacting yours to arrange such a meeting.
Sincerely,
William E. Bendix
L.G. Wolski
cc: Board of Directors of Joslyn Corporation
On July 28, 1995, Parent entered into a Confidentiality Agreement with the
Company, pursuant to which it generally agreed to treat confidentially any
information (except certain already known or public information) that the
Company or its agents or advisors furnish to Parent or its representatives (the
"Confidentiality Agreement"). A copy of the Confidentiality Agreement is filed
as an exhibit to Amendment No. 3 to the Schedule 14D-1 filed by Parent and the
Purchaser with the Commission, and this summary of the Confidentiality
Agreement is qualified in its entirety by reference to the text of the
agreement. In the Confidentiality Agreement, Parent also agreed, for a period
of six months commencing on the date of the Confidentiality Agreement, to
certain restrictions relating to acquiring additional Shares, soliciting
proxies, initiating shareholder proposals or tender offers, or otherwise
seeking to influence or control the management of the Company. Parent is
permitted, however, to engage in negotiations with the Company in respect of an
acquisition of the Company, to pursue its Offer and to take any and all actions
(including without limitation communications to shareholders, proxy
solicitations, calling of shareholder meetings, and litigation, and any actions
relating to the financing of an offer or a follow-on merger) in support of any
offer, although Parent agreed to stay litigation proceedings, and efforts to
seek a meeting of the Company's shareholders and to solicit proxies or written
consents, pending its review of information relating to the Company and any
related discussions and negotiations in respect of a transaction. The foregoing
restrictions terminate in the event the Company's Board of Directors approves
or recommends, or resolves to approve or recommend, any third party acquisition
proposal, or, if there is a third party acquisition proposal that is a tender
offer, if the Company's Board of Directors, within 10 days following
commencement of the offer, shall not have recommended to shareholders that they
reject such offer.
Subsequent to entering into the Confidentiality Agreement, the Company and
Goldman provided certain business and financial information to Parent and its
representatives, and representatives of Parent met with representatives of the
Company, conducted due diligence with respect to the Company and its facilities
and operations and reviewed various information concerning the Company supplied
to Parent.
On Friday, August 4, 1995, the Company issued the following press release:
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Joslyn Corporation (Nasdaq: JOSL) announced today that its Board of Directors
has recommended that its shareholders reject the $32 per share tender offer
from Danaher Corporation (NYSE: DHR). In a letter being mailed to Joslyn
shareholders, Joslyn Board Chairman William E. Bendix and Chief Executive
Officer L.G. Wolski said that the Joslyn Board has not reached a conclusion
that Joslyn should be sold. However, Joslyn is in the midst of providing
further information to Danaher in an effort to cause it to raise its bid. In
addition, Joslyn has entered into confidentiality agreements with other
potentially interested parties and is seeking to develop their interest in a
transaction at higher than $32 per share.
In the following days, Parent continued to conduct due diligence and to
review information concerning the Company. On Monday, August 14, 1995, the
Company issued the following press release:
Joslyn Corporation (NASDAQ:JOSL) announced today that its Board of Directors
has reaffirmed its rejection of Danaher Corporation's offer to acquire Joslyn
Corporation at a price of $32 per share. At its meeting held on August 12, the
Board advised Joslyn shareholders not to tender their shares to Danaher
Corporation and urged shareholders who have tendered their shares to withdraw
them before August 18, 1995, the scheduled expiration date of Danaher's tender
offer.
The full text of the letter to Joslyn shareholders is as follows:
August 14, 1995
To Our Shareholders:
Your Board and management have been working diligently on your behalf. We are
writing to ask you to help us help you.
As we approach the scheduled expiration date of Danaher Corporation's $32 per
share cash tender offer, we again urge you to reject Danaher's Offer and NOT
TENDER YOUR SHARES. Since our last letter to you, Danaher has continued its due
diligence investigation. On August 11, 1995, notwithstanding Danaher's prior
commitment to a "brief, highly focused" investigation, Danaher once again
informed us that they would need additional time before telling us whether
Danaher will increase its Offer. We believe Danaher has already seen everything
necessary to satisfy any reasonable due diligence needs and to know that Joslyn
is worth more than $32 per share to Danaher.
On August 12, 1995, the Joslyn Board met again and reconfirmed its
recommendation that you reject the existing Offer for the following reasons:
. Joslyn's business is benefiting from our new strategy and management and
is producing strong operating and financial results. Your Board is
exploring all avenues for maximizing shareholder value, including
possible restructuring transactions and transactions with others.
. Joslyn is continuing to enter into confidentiality agreements and provide
information to other parties potentially interested in a business
combination.
. There are reasons for optimism that Danaher will propose an increased
Offer price. Among other things--
- Danaher itself has stated that its purpose in conducting a due
diligence investigation is to determine if a higher price can be
justified.
- Our analysis indicates that an acquisition by Danaher at a price
significantly higher than $32 would continue to be earnings-enhancing
for them.
Although the Board cannot predict how all this will sort out, one thing seems
clear: you have nothing to gain by tendering into Danaher's Offer prior to its
scheduled expiration on Friday, August 18, 1995. Danaher has indicated that it
will not be able to buy any shares until certain conditions to the Offer,
including those requiring action by the Board, have been satisfied. Those
conditions will not be satisfied by that date.
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ACCORDINGLY, WE URGE YOU NOT TO TENDER. AND, IF YOU HAVE ALREADY TENDERED, WE
URGE YOU TO WITHDRAW YOUR SHARES BEFORE AUGUST 18.
Again, help us help you. By not tendering, you will send a message to Danaher
that you demand full value for your shares.
Sincerely,
William E. Bendix
L.G. Wolski
On Friday, August 18, 1995, representatives of Parent indicated to
representatives of the Company their willingness to increase the per share
price in a negotiated transaction to $34 per share if the terms of a
satisfactory merger agreement could be agreed upon. Thereafter, until Sunday
August 20, 1995, Parent and the Company and their respective representatives
negotiated and discussed the terms of Parent's proposal and the related Merger
Agreement. On Sunday, August 20, 1995, an agreement was reached between the
parties on all terms, including price, of the Merger Agreement, and the Merger
Agreement was executed.
On Monday, August 21, 1995, Parent and the Company issued a joint press
release announcing the execution by Parent, DH Holdings, the Purchaser and the
Company of the Merger Agreement and the amendment of the Offer.
7. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY
Section 11 of the Offer to Purchase is amended and supplemented by this
Section 7 of this Supplement.
Pursuant to the Merger Agreement, Parent, DH Holdings, the Purchaser and the
Company have agreed, among other things, that Parent shall be entitled to
modify the composition of the Board of Directors of the Company to include
nominees of the Purchaser following consummation of the Offer. See Section 8 of
this Supplement.
On August 20, 1995, the Board of Directors of the Company authorized, and the
Company executed, an amendment to the Rights Agreement (the "Rights Agreement
Amendment"), which renders the Rights Agreement inapplicable to the Offer and
the Merger by providing, among other things, that the announcement or making of
the Offer, the acquisition of Shares pursuant to the Offer and the Merger, the
execution of the Merger Agreement, and the other transactions contemplated by
the Merger Agreement will not, among other things, (a) result in Parent or the
Purchaser or any of their affiliates being considered an Acquiring Person or
(b) cause the occurrence of a Distribution Date. The Company has also agreed in
the Merger Agreement that it will not redeem the Rights, amend the Rights
Agreement (other than to delay the Distribution Date or to render the Rights
inapplicable to the Offer and the Merger) or terminate the Rights Agreement
prior to the effectiveness of the Merger, unless required to do so by order of
a court of competent jurisdiction.
Except as amended by the Rights Agreement Amendment, the Rights Agreement
remains as described in Section 11 of the Offer to Purchase. The foregoing
description of the Rights Agreement is qualified in its entirety by reference
to the text of the Rights Agreement, as amended, and the other documents
included in the Company's 8-A/A and the Rights Agreement Amendment.
8. THE MERGER AGREEMENT
The following is a summary of the material provisions of the Merger
Agreement, a copy of which was filed as Exhibit 11(a)(10) to Amendment No. 5 to
the Tender Offer Statement on Schedule 14D-1 of the
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<PAGE>
Purchaser and Parent filed with the Commission on August 21, 1995. Such Exhibit
should be available for inspection and copies should be obtainable, in the
manner set forth in Section 8 of the Offer to Purchase (except that it will not
be available at the regional offices of the Commission). The following summary
is qualified in its entirety by reference to the Merger Agreement which is
incorporated by reference herein. Capitalized terms not defined in this Section
8 have the meanings ascribed to them in the Merger Agreement.
The Amended Offer. In the Merger Agreement, Parent and the Purchaser agree,
among other things, to amend and supplement the Offer to provide that (i) the
purchase price offered pursuant to the Offer will be increased to $34.00 per
Share, (ii) the obligations of the Purchaser and Parent to consummate the Offer
and to accept for payment and purchase the Shares tendered shall be subject
only to the conditions set forth in Annex A to the Merger Agreement (the "Offer
Conditions"), and (iii) the expiration date of the Offer will be extended at
least until midnight, New York City time, on Friday, September 1, 1995, unless
further extended. The Purchaser shall not, without the Company's prior written
consent, (i) reduce the price per Share or the number of Shares sought to be
purchased or modify the form of consideration to be received by holders of the
Shares in the Offer, (ii) waive or modify the Minimum Condition or (iii) impose
additional conditions to the Offer or amend any term of the Offer in a manner
adverse to the holders of the Shares. Subject only to the Offer Conditions, the
Purchaser shall, and Parent shall cause the Purchaser to, pay for all of the
Shares validly tendered and not withdrawn pursuant to the Offer as soon as
legally permissible.
In the Merger Agreement, the Company consents to the amended Offer and
represents and warrants that the Board of Directors of the Company (at a
meeting duly called and held at which a quorum was present) as part of its
approval of the Merger Agreement, has unanimously (i) approved the making of
the Offer, (ii) determined that each of the Offer and the Merger is fair to,
and in the best interests of, the shareholders of the Company and (iii)
resolved, subject to the terms and conditions of the Merger Agreement, to
recommend acceptance of the Offer and approval and adoption of the Merger
Agreement by the shareholders of the Company (to the extent such approval and
adoption is required by applicable law). Under the Merger Agreement, the Board
of Directors of the Company will not withdraw, modify or amend such
recommendation except to the extent that, after taking into account the advice
of counsel to the Company, it concludes that such withdrawal, modification or
amendment is legally required in the proper exercise of its fiduciary duties.
If, however, the Board of Directors withdraws, modifies or amends such
recommendation after receiving a Superior Proposal (as defined below in
"Termination"), then such withdrawal, modification or amendment may be made
only at a time that is after the second business day after Parent has received
written notice from the Company advising Parent of the Company's receipt of a
Superior Proposal, specifying the material terms and conditions of such
Superior Proposal and identifying the person making such Superior Proposal.
The Merger Agreement provides that, promptly (subject to any applicable
requirements under Section 14(f) of the Exchange Act) upon the purchase by the
Purchaser of the Shares pursuant to the Offer, the Board of Directors of the
Company shall amend its By-Laws to provide that the number of directors shall
be no less than seven and no more than twelve persons, Steven M. Rales,
Mitchell P. Rales, George M. Sherman, Patrick W. Allender, C. Scott Brannan and
James H. Ditkoff shall be elected by the Board of Directors as additional
directors of the Company (or, if any such persons shall be unavailable, other
persons designated by the Purchaser and reasonably acceptable to the
Independent Directors) and William E. Bendix, James M. Reed and Lawrence G.
Wolski shall resign as directors of the Company, and thereafter until the
Effective Time (a) the total number of directors of the Company shall be nine,
(b) the Purchaser shall be entitled to designate up to six directors; and (c)
the Board of Directors shall have at least three Independent Directors (defined
as directors of the Company then in office who are neither designated by the
Purchaser nor otherwise affiliated with Parent or the Purchaser and are not
employees of the Company or any of its Subsidiaries). Following the election or
appointment of the Purchaser's designees and prior to the Effective Time, any
amendment to the Merger Agreement or of the Articles 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 Parent or the Purchaser and any waiver of any of
the Company's rights under the Merger Agreement will require the concurrence of
a majority of the Independent Directors.
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The Merger. The Merger Agreement provides that at the Effective Time, the
Purchaser will be merged with and into the Company, and the Company shall be
the surviving corporation (the "Surviving Corporation") and shall continue its
corporate existence under the laws of the State of Illinois. At the Effective
Time, the separate existence of the Purchaser shall cease. The Surviving
Corporation shall retain the name of the Company and shall possess all the
rights, privileges, immunities, powers and franchises of the Purchaser and the
Company and shall by operation of law become liable for all the debts,
liabilities and duties of the Purchaser and the Company. Subject to the
provisions of the Merger Agreement relating to indemnification, the Articles of
Incorporation of the Company in effect immediately prior to the Effective Time
shall be the Articles of Incorporation of the Surviving Corporation until
thereafter amended in accordance with provisions thereof and as provided by
law, except that such Articles of Incorporation shall be amended to reduce the
authorized capital stock of the Surviving Corporation to 1,100 shares of common
stock, par value $1.25 per share. Subject to the provisions of the Merger
Agreement relating to indemnification, the By-Laws of the Company in effect
immediately prior to the Effective Time shall be the By-Laws of the Surviving
Corporation until thereafter amended, altered or repealed as provided therein
and by law. The directors of the Purchaser and the officers of the Company
immediately prior to the Effective Time shall be the directors and officers,
respectively, of the Surviving Corporation, each to hold office in accordance
with the Articles of Incorporation and By-Laws of the Surviving Corporation.
Conversion of Shares. Pursuant to the Merger Agreement, each Share issued
and outstanding immediately prior to the Effective Time (except for Shares then
owned beneficially or of record by Parent or the Purchaser or any other
subsidiary of Parent and except for Dissenting Shares (as defined below)),
shall, by virtue of the Merger and without any action on part of the holder
thereof, be converted into the right to receive $34.00 (or, if a greater per
Share price shall have been paid in the Offer, such greater price) ($34.00 or
such greater price being referred to hereinafter as the "Merger Consideration")
in cash payable to the holder thereof, without interest thereon, upon surrender
of the certificate representing such Share. Each Share issued and outstanding
immediately prior to the Effective Time which is then owned beneficially or of
record by Parent or the Purchaser or any other subsidiary of Parent shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be cancelled and retired and cease to exist, without any conversion thereof.
Each Share issued and held in the Company's treasury immediately prior to the
Effective Time shall, by virtue of the Merger, be cancelled and retired and
cease to exist, without any conversion thereof. At the Effective Time, the
holders of certificates representing Shares shall cease to have any rights as
shareholders of the Company, except such rights, if any, as they may have
pursuant to the Illinois Business Corporation Act (the "IBCA"), and, except as
aforesaid, their sole right shall be the right to receive cash as aforesaid.
Dissenting Shares. Notwithstanding anything in the Merger Agreement to the
contrary, any Shares which are outstanding immediately prior to the Effective
Time and which are held by shareholders who have not voted such Shares in favor
of the approval and adoption of the Merger Agreement and who shall have
properly demanded appraisal of such Shares in the manner provided in Section
11.70 of the IBCA ("Dissenting Shares"), if applicable, shall not be converted
into or be exchangeable for the right to receive the Merger Consideration, but
the holders thereof shall be entitled to payment of the appraised value of such
Shares in accordance with the provisions of Section 11.70 of the IBCA;
provided, however, that (i) if any holder of Dissenting Shares shall
subsequently deliver a written withdrawal of his or her demand for appraisal of
such Shares, or (ii) if any holder fails to establish his or her entitlement to
appraisal rights as provided in Sections 11.65 and 11.70 of the IBCA, or (iii)
if any such holder shall, for any other reason, become ineligible for such
appraisal, then such holder shall forfeit the right to appraisal of such Shares
and each such Share shall thereupon be deemed to have been converted into and
to have become exchangeable for, as of the Effective Time, the right to receive
the Merger Consideration, without any interest thereon. The Company shall not
settle or compromise any claim for dissenters' rights prior to the Effective
Time without the prior written consent of Parent and the Purchaser.
For a description of appraisal rights with respect to the Merger, see Section
11 of the Offer to Purchase.
Purchaser Common Stock. Each share of common stock, par value $.01 per
share, of the Purchaser ("Purchaser Common Stock") issued and outstanding
immediately prior to the Effective Time shall, by virtue
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of the Merger and without any action on the part of the holder thereof, be
converted into and exchangeable for one fully paid and non-assessable share of
common stock, par value $1.25 per share ("Surviving Corporation Common Stock"),
of the Surviving Corporation. From and after the Effective Time, each
outstanding certificate theretofore representing shares of Purchaser Common
Stock shall be deemed for all purposes to evidence ownership of and to
represent the same number of shares of Surviving Corporation Common Stock.
Employee Stock Options. Subject to and in accordance with the terms of the
applicable stock option plan of the Company and any related option agreement,
immediately prior to the Effective Time, each holder of an outstanding option
to purchase Shares granted under any employee stock option plan of the Company,
other than a Cancelled Option (as defined below) or any other option with a
stock appreciation right exercisable upon a change of control of the Company,
whether or not then exercisable, shall be entitled to receive from the
Surviving Corporation for each Share subject to such option an amount in cash
equal to the excess, if any, of the Merger Consideration over the per Share
exercise price of such option without interest thereon, subject to all
applicable tax withholding requirements. Subject to and in accordance with the
terms of the Joslyn Corporation Non-Employee Director Stock Plan and any
related option agreement, with respect to each stock option for 1,000 Shares
granted within the six month period preceding the Closing, each at an exercise
price of $24.75 per Share, to each non-employee director who is subject to the
provisions of Sections 16(a) and 16(b) of the Exchange Act, Parent shall
provide each such non-employee director with an option to purchase 1,000 shares
of Parent's common stock (the "Substitute Options"). Each Substitute Option
shall (a) be in substitution for, and cancellation of, such stock options
granted under the applicable stock option plan of the Company (the "Cancelled
Options"); (b) be in the form attached to the Merger Agreement as Annex C; and
(c) be immediately exercisable in full at an exercise price of $22.625 per
share of Parent's common stock. Subject to the foregoing, each option or other
equity award with respect to Shares outstanding at the Effective Time under any
stock option or other equity plan, program or agreement of the Company shall
automatically terminate and be cancelled upon consummation of the Merger.
Parent shall cause the Surviving Corporation to make all payments required
under this paragraph.
Adjustment of Merger Consideration. The Merger Agreement provides that in
the event of any reclassification, recapitalization, stock split or stock
dividend with respect to the Shares (or if a record date with respect to any of
the foregoing shall occur) prior to the Effective Time, appropriate and
proportionate adjustments, if any, shall be made to the amount of Merger
Consideration per Share, and all references to the Merger Consideration in the
Merger Agreement shall be deemed to be to the Merger Consideration as so
adjusted.
Representations and Warranties. The Merger Agreement contains
representations and warranties by the Company with respect to, among other
things, its organization, its capitalization, its authority to enter into the
Merger Agreement, its recommendation of the Merger, required consents and
approvals with respect to the Merger, the absence of conflicts upon execution
and delivery of the Merger Agreement, compliance by the Company with applicable
law, its filings with the Commission, its financial statements, the information
supplied by the Company in connection with the Offer, the Company's employee
benefit plans and other compensation arrangements, the absence of certain
changes in its business, the absence of certain litigation with respect to the
Company, the inapplicability of the Rights Agreement to the Offer and the
Merger, tax matters relating to the Company, environmental matters, and
compliance with the Business Combination Law.
The Merger Agreement also contains representations and warranties by Parent,
DH Holdings and the Purchaser with respect to, among other things, their
organization, Parent's capitalization, their authority to enter into the Merger
Agreement, required consents and approvals with respect to the Merger
Agreement, the information supplied by them in connection with the Offer and
their ability to finance the purchase of the Shares.
Covenants of the Company. In the Merger Agreement, the Company has
covenanted and agreed that, among other things, during the period from the date
of the Merger Agreement to the Effective Time, the
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Company and its subsidiaries will each conduct its operations in all material
respects according to its ordinary and usual course of business, and will use
reasonable efforts to preserve intact its business organization and to maintain
satisfactory relationships with suppliers, distributors, customers and others
having business relationships with it. The Company will promptly advise Parent
in writing of any change in the Company's or any of its subsidiaries' business
or financial condition which is materially adverse to the Company and its
subsidiaries taken as a whole, and will confer on a regular and frequent basis
with representatives of Parent to report upon the status of operations. Without
limiting the generality of the foregoing, and except as otherwise expressly
contemplated by the Merger Agreement, prior to the Effective Time, neither the
Company nor any of its subsidiaries will, without the prior written consent of
Parent, (i) amend its Articles of Incorporation or By-Laws (or equivalent
instruments); (ii) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver (whether through the issuance or granting of
additional options, warrants, commitments, subscriptions, rights to purchase or
otherwise) any shares of capital stock of any class or any securities
convertible into shares of capital stock of any class, except as required by
any employee benefit or stock option plan or agreement existing as of the date
of the Merger Agreement; (iii) split, combine or reclassify any shares of its
capital stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect of
its capital stock, or redeem or otherwise acquire any shares of its capital
stock; provided, however, that the Company may declare and pay to holders of
Shares regular quarterly dividends of not more than $0.30 per Share; and
provided, further, that any of the Company's subsidiaries may declare, set
aside or pay any dividend or other distribution with respect to their capital
stock; (iv) (x) create, incur, assume, maintain or permit to exist any long-
term debt (including obligations in respect of capital leases); (y) except in
the ordinary course of business and consistent with past practices, assume,
guarantee, endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any person other than any
subsidiary of the Company; or (z) make any loans, advances or capital
contributions to, or investments in, any person other than any of the
subsidiaries of the Company, except for loans or advances to employees or
customers in the ordinary course of business and consistent with past
practices; (v) except in the ordinary course of business or as has been
disclosed, sell, transfer, mortgage or otherwise dispose of or encumber, any
business, subsidiary, assets that are material to the Company and its
subsidiaries taken as a whole, or fixed assets that have a value on the
Company's books, either individually or in the aggregate, in excess of
$500,000; (vi) settle or compromise any pending or threatened suit, action or
claim in which the amount involved is greater than $500,000 or which is
material to the Company and its subsidiaries taken as a whole or which relates
to the transactions contemplated by the Merger Agreement or modify, amend or
terminate any contracts involving in excess of $500,000 or waive, release or
assign any right or claim involving in excess of $500,000; (vii) make any
material tax election or permit any material insurance policy naming it as a
beneficiary or a loss payable payee to be cancelled or terminated, in each case
without notice to Parent; (viii) grant any material increase in the
compensation payable or to become payable to any of its officers or employees
or establish, adopt, enter into, make any new grants or awards under, be
obligated to grant any awards under, or amend, any collective bargaining
(except as required by law), bonus, profit sharing, thrift, compensation, stock
option or other equity, pension, retirement, incentive or deferred
compensation, employment, retention, termination, severance, health, life or
other welfare, fringe or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any current or former directors, officers or
employees, or grant or pay any benefit not required by any existing plan or
arrangement; (ix) change in any material respect any of the accounting
principles used by it, unless required by GAAP; (x) acquire any business or
capital stock, merge or consolidate with any other person or sell, encumber or
otherwise transfer any business or material portion thereof; or (xi) agree to
do any of the foregoing.
Access to Information. From the date of the Merger Agreement to the
Effective Time, but subject to applicable confidentiality agreements creating
obligations to others and excluding information provided to the Company's Board
of Directors with respect to the Offer, the Company shall, and shall cause its
subsidiaries, officers, directors, employees, auditors and other agents to,
afford the officers, employees, auditors and other agents of Parent, and to
representatives of and advisors to financing sources, reasonable access during
normal business hours to its officers, employees, agents, properties, offices,
plants and other
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facilities and to all books, records and contracts, and shall furnish Parent
and such financing sources with all financial, operating and other data and
information as Parent, through its officers, employees or agents, or such
financing sources may from time to time reasonably request. The Company will
promptly furnish to Parent, at Parent's expense and subject to the
Confidentiality Agreement, a copy of each material document filed or received
by it pursuant to the federal securities laws or federal or state tax laws or
any Environmental Laws, and of such other documents as Parent may reasonably
request.
Shareholder Approval. Pursuant to the Merger Agreement, if required by
applicable law in order to consummate the Merger, as soon as practicable
following the purchase of the Shares pursuant to the Offer, the Company, acting
through its Board of Directors, shall, in accordance with applicable law,
except to the extent that the Board of Directors of the Company, after taking
into account the advice of counsel to the Company, concludes that any action is
required in the proper exercise of its fiduciary duties, take all steps
necessary duly to call, set a record date for, give notice of, convene and hold
a meeting of its shareholders as soon as practicable for the purpose of
adopting and approving the Merger Agreement and the transactions contemplated
thereby. At such meeting, Parent and the Purchaser will each vote, or cause to
be voted, all Shares acquired in the Offer or otherwise beneficially owned by
it or any of its subsidiaries on the record date for such meeting, in favor of
the approval and adoption of the Merger Agreement and the transactions
contemplated thereby.
The Company will, if required by law for the consummation of the Merger,
prepare and file a Proxy Statement with the Commission, and shall use all
reasonable efforts to obtain and furnish the information required to be
included by it in the Proxy Statement and, after consultation with Parent, to
respond promptly to any comments made by the Commission with respect to the
Proxy Statement and any preliminary version thereof and to cause the Proxy
Statement to be mailed to its shareholders at the earliest practicable time
following the purchase of the Shares pursuant to the Offer. The Board of
Directors of the Company and the Board of Directors of Parent and the Purchaser
have each determined that the Merger is advisable and in the best interests of
shareholders of their respective companies and, except to the extent that the
Board of Directors of the Company, after taking into account the advice of
counsel to the Company, concludes that any action is required in the proper
exercise of its fiduciary duties, the Board of Directors of the Company will
(i) recommend to shareholders the adoption and approval of the Merger Agreement
and the transactions contemplated thereby and the other matters to be submitted
to shareholders in connection therewith and (ii) use all reasonable efforts to
obtain the necessary approval by shareholders of the Merger Agreement and the
transactions contemplated thereby.
Notwithstanding the foregoing, in the event that after the closing of the
Offer the Purchaser shall be the owner of at least 90 percent of the
outstanding Shares, the parties to the Merger Agreement shall take all
necessary and appropriate action to cause the Merger to become effective as
soon as practicable after the expiration of the Offer and compliance with the
applicable provisions of the IBCA and any applicable rules of the Commission,
without a meeting of shareholders of the Company, if practicable, in accordance
with Section 253 of the Delaware General Corporation Law and Section 11.30 of
the IBCA.
Reasonable Efforts. Subject to the terms and conditions of the Merger
Agreement and the fiduciary duties of the Board of Directors of the Company,
each of the parties to the Merger Agreement has agreed to use all reasonable
efforts consistent with applicable legal requirements to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary or
proper and advisable under applicable laws and regulations to ensure that the
Offer Conditions and the conditions to the Merger Agreement are satisfied and
to consummate and make effective, in the most expeditious manner practicable,
the transactions contemplated by the Merger Agreement.
Consents. The Merger Agreement provides that Parent and the Company each
shall use all reasonable efforts to obtain all material consents of third
parties and governmental authorities, and to make all governmental filings,
necessary for the consummation of the transactions contemplated by the Merger
Agreement.
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Public Announcements. Parent and the Company will consult with each other
before issuing any press release or otherwise making any public statements with
respect to the Offer or the Merger and shall not issue any such press release
or make any such public statement prior to such consultation, except as may be
required by law or by obligations pursuant to any listing agreement with any
securities exchange.
Consent of DH Holdings. DH Holdings, as the sole shareholder of the
Purchaser, by executing the Merger Agreement has consented to the execution and
delivery of the Merger Agreement by the Purchaser and the consummation of the
Merger and the other transactions contemplated thereby and such consent shall
be treated for all purposes as a vote duly cast at a meeting of the
shareholders of the Purchaser held for such purpose.
No Solicitation. Neither the Company nor any of its subsidiaries nor any of
their respective officers, directors, employees, agents or representatives
(including, without limitation, investment bankers, attorneys and accountants)
shall, directly or indirectly, (a) solicit, initiate or encourage or (b) enter
into any discussions or negotiations with, in any way continue any discussions
or negotiations commenced before the date of the Merger Agreement with, or
disclose directly or indirectly any information not customarily disclosed
concerning its business and properties to, or afford any access to its
properties, books and records to, any corporation, partnership or other person
or group in connection with any possible proposal (an "Acquisition Proposal")
regarding a sale of the Company's capital stock or a merger, consolidation or
sale or spin-off of all or a substantial portion of the assets of the Company
or any subsidiary of the Company which is material to the Company and its
subsidiaries taken as a whole, or a liquidation or a recapitalization of the
Company, or any similar transaction; provided that (x) in response to an
Acquisition Proposal made without such solicitation, initiation or
encouragement, the Company may (to the extent that the Board of Directors of
the Company, after taking into account the advice of counsel to the Company,
concludes that any of the following actions is required in the proper exercise
of its fiduciary duties) (i) furnish information with respect to the Company to
any person pursuant to a confidentiality agreement no more favorable to such
person than the Confidentiality Agreement is to Parent and (ii) participate in
negotiations regarding such Acquisition Proposal and (y) the Company's Board of
Directors shall be free to take and disclose any position with respect to a
third party offer pursuant to Rules l4d-9 and l4e-2 under the Exchange Act and
to make such disclosures to the Company's shareholders, which, upon the advice
of the Company's counsel, are required by applicable law. The Company will
notify Parent immediately, orally and in writing, if any discussions or
negotiations are sought to be initiated, any inquiry or proposal is made, or
any such information is requested, with respect to an Acquisition Proposal or
potential Acquisition Proposal or if any Acquisition Proposal is received or if
the Company has been informed that an Acquisition Proposal is forthcoming, and
will include in such notification the identity of the other party or parties
and the material terms and conditions of any such request, inquiry or
Acquisition Proposal. The Company will keep Parent informed in reasonable
detail of the status (including amendments or proposed amendments) of any such
request, inquiry or Acquisition Proposal.
Indemnification; Insurance. Pursuant to the Merger Agreement, for a period
of six years after the Effective Time, Parent shall, and shall cause the
Surviving Corporation to, indemnify, defend and hold harmless the present and
former officers, directors, employees and agents of the Company and its
subsidiaries (collectively, the "Indemnified Parties") from and against, and
pay or reimburse the Indemnified Parties for, all losses, obligations,
expenses, claims, damages or liabilities (whether or not resulting from third-
party claims and including interest, penalties, out-of-pocket expenses and
attorneys' fees incurred in the investigation or defense of any of the same or
in asserting any of their rights under the Merger Agreement) resulting from or
arising out of actions or omissions occurring on or prior to the Effective Time
(including, without limitation, the transactions contemplated by the Merger
Agreement) to the full extent permitted or required under applicable law and,
in the case of indemnification by the Surviving Corporation, to the extent
permitted under the provisions of the Articles of Incorporation and the By-Laws
of the Company, each as in
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effect at the date of the Merger Agreement (which provisions shall not be
amended in any manner which adversely affects any Indemnified Party, for a
period of six years), including provisions relating to advances of expenses
incurred in the defense of any action or suit; provided that in the event any
claim or claims are asserted or made within such six-year period, all rights to
indemnification in respect of each such claim shall continue until final
disposition of such claim. Without limiting the foregoing, in any case in which
approval by the Surviving Corporation is required to effectuate any
indemnification, Parent shall cause the Surviving Corporation to direct, at the
election of the Indemnified Party, that the determination of any such approval
shall be made by independent counsel selected by the Indemnified Party.
Any Indemnified Party wishing to claim indemnification under the Merger
Agreement shall provide notice to Parent promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, provided
that failure to provide such notice shall not relieve Parent or the Surviving
Corporation of its obligations hereunder except to the extent that Parent or
the Surviving Corporation is materially prejudiced thereby, and the Indemnified
Party shall permit Parent (at Parent's expense) to assume the defense of any
claim or any litigation resulting therefrom; provided that (i) counsel for
Parent who shall conduct the defense of such claim or litigation shall be
reasonably satisfactory to the Indemnified Party, and the Indemnified Party may
participate in such defense at such Indemnified Party's expense, and (ii) the
omission by any Indemnified Party to give notice as provided herein shall not
relieve Parent of its indemnification obligation under the Merger Agreement
except to the extent that such omission results in a failure of actual notice
to Parent and Parent is materially damaged as a result of such failure to give
notice. Parent shall not, in the defense of any such claim or litigation,
except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement that provides for injunctive or other
nonmonetary relief affecting the Indemnified Party or that does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation. In the event that Parent does not accept the defense of any matter
as above provided, or counsel for the Indemnified Parties advises that there
are issues which raise conflicts of interest between Parent or the Surviving
Corporation and the Indemnified Parties, the Indemnified Parties may retain
counsel satisfactory to them, and Parent or the Surviving Corporation shall pay
all reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; provided that Parent shall not be
liable for any settlement effected without its prior written consent (which
consent shall not be unreasonably withheld). In any event, Parent and the
Indemnified Parties shall cooperate in the defense of any action or claim
subject to the Merger Agreement and the records of each shall be available to
the other with respect to such defense.
For not less than six years after the Effective Time, Parent and the
Purchaser shall maintain in effect directors' and officers' liability insurance
covering the Indemnified Parties who are currently covered by the Company's
existing directors' and officers' liability insurance, on terms and conditions
no less favorable to such directors and officers than those in effect on the
date hereof; provided that in no event shall Parent be required to expend in
any one year an amount in excess of 150% of the annual premiums currently paid
by the Company for such insurance; and, provided, further, that if the annual
premiums of such insurance coverage exceed such amount, Parent shall be
obligated to obtain a policy with the greatest coverage available for a cost
not exceeding such amount.
Employee Benefits; Severance Agreements and Plans. Under the Merger
Agreement, Parent agrees to maintain, or cause the Surviving Corporation to
maintain, until December 31, 1996, employee benefit plans which, in the
aggregate, will provide benefits to the employees of the Company and its
subsidiaries that are substantially comparable, in the aggregate, to those
provided to such employees under the employee benefit plans of the Company in
effect on the date of the Merger Agreement, and, after December 31, 1996, will
provide such employees with benefits that are consistent with those provided to
other employees of Parent. To the extent that any employee of the Company or
its subsidiaries is to be covered by any employee benefit plan of Parent or its
subsidiaries, such employee shall, for the purposes of eligibility and vesting
(but not
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accrual of benefits under such plans), be credited with his or her years of
service with the Company or its subsidiaries as of the Effective Time and with
years of service with prior employers to the extent service with prior
employers is taken into account under corresponding plans of the Company or its
subsidiaries. With respect to any employee of the Company or its subsidiaries
who becomes eligible to participate in any medical plan of Parent or its
subsidiaries (but without creating any obligation in Parent or its subsidiaries
to increase the medical conditions covered by any such medical plan of Parent
or its subsidiaries), (a) no condition that would have been covered under the
applicable medical plan of the Company in which such employee participated
immediately prior to the change in coverage shall be excluded as a pre-existing
condition from coverage under any medical plan of the Parent or its
subsidiaries and (b) amounts paid before such participation by such employee of
the Company under the applicable medical plan of the Company with respect to
the plan year in which such participation commences shall be taken into account
in applying deductibles and maximum out-of-pocket limits applicable under the
medical plan of Parent with respect to the balance of such plan year to the
same extent as if such amounts had been paid under such medical plan of Parent.
Parent shall honor, or cause the Company to honor, effective upon the
consummation of the Offer, the Company's obligations under the Company's
existing severance agreements dated as of September 16, 1994 with Messrs.
Diehl, Koprowski and Wolski. With respect to other employees, Parent shall
honor, or shall cause the Company to honor, effective upon the consummation of
the Offer, the Company's Severance Plan for the Corporate Staff and the
Severance Policy for Corporate Managers (such plan and policy, the "Severance
Policies") as in effect on the date of the Merger Agreement, including the
provisions of the Severance Policies relating to amendment or termination of
the Severance Policies. The Company represents and warrants that correct copies
of the Severance Policies have been filed as exhibits to Disclosure Statements.
Parent acknowledges that consummation of the Offer will constitute a "Change in
Control" under such severance agreements and the Severance Policies.
Stock Options. Prior to the acquisition of Shares pursuant to the Offer, the
Company will make all necessary and appropriate adjustments to (including
without limitation an adjustment, reasonably satisfactory to the Purchaser, in
the number of Shares subject to outstanding options and in the option prices
per Share to reflect the change in the number of Shares that will be
outstanding following the Merger), and shall use all reasonable efforts to
obtain all necessary consents with respect to, all of the Company's employee
stock options other than any Cancelled Options, in order that such stock
options may be cancelled and settled by the Company as described above under
"Employee Stock Options."
Transfer Taxes. The Surviving Corporation shall pay any transfer Taxes
payable in connection with the Merger and shall be responsible for the
preparation and filing of any required Tax Returns with respect to such Taxes.
Anti-Takeover Statutes. If any "fair price," "moratorium," "control share
acquisition" or other form of anti-takeover statute is or shall become
applicable to the Offer, Merger or other transactions contemplated by the
Merger Agreement, the Company and the members of the Board of Directors of the
Company will grant such approvals and take such actions as are necessary so
that the Offer, Merger and other transactions contemplated by the Merger
Agreement may be consummated as promptly as practicable on the terms
contemplated by the Merger Agreement and otherwise act to eliminate or minimize
the effects of any such anti-takeover statute on the transactions contemplated
thereby.
No Amendment to the Rights Agreement. In the Merger Agreement, the Company
covenants and agrees that so long as the Merger Agreement is in effect, it will
not amend the Rights Agreement or redeem the Rights or terminate the Rights
Agreement prior to the Effective Date, except as expressly contemplated by the
Merger Agreement.
Notification of Certain Matters. The Company will give prompt notice to
Parent and the Purchaser, and Parent and the Purchaser will give prompt notice
to the Company, of (a) the occurrence or non-occurrence of any event likely to
cause (i) any representation or warranty contained in the Merger Agreement
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to be untrue or inaccurate in any material respect, and (ii) any failure of the
Company, or of Parent, DH Holdings or the Purchaser, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied under the Merger Agreement; provided, however, that the delivery
of any such notice will not limit or otherwise affect the remedies available
under the Merger Agreement to the party receiving such notice and (b) any
communication (written or oral) received by any director or officer of the
Company from any person that alleges any noncompliance with Environmental Laws
or any Environmental Liability on the part of the Company or any of its
subsidiaries that is material to the Company and its subsidiaries taken as a
whole.
Disposition of Litigation. Each of Parent, the Purchaser and the Company
agrees promptly to use all reasonable efforts to withdraw (and shall not
refile) all pending litigation between the parties.
Proxy Contest. Parent and the Purchaser agree to withdraw (and not refile)
the Schedule 14A filed with the Commission relating to the calling of a special
meeting for, among other things, the removal of the directors of the Company.
Stock Exchange Listing. Parent shall use all reasonable efforts to list on
the New York Stock Exchange, upon official notice of issuance, the shares of
common stock of Parent to be issued upon exercise of the Substitute Options.
Conditions to the Obligations of Parent, the Purchaser and the Company. The
respective obligations of each party to the Merger Agreement to effect the
Merger shall be subject to the fulfillment at or prior to the Effective Time of
the following conditions: (a) the Purchaser shall have purchased all Shares
duly tendered and not withdrawn pursuant to the terms of the Offer and subject
to the terms thereof; provided that the obligation of Parent, DH Holdings and
the Purchaser to effect the Merger shall not be conditioned on the fulfillment
of this condition if the failure of the Purchaser to purchase the Shares
pursuant to the Offer shall have constituted a breach of the Offer or of the
Merger Agreement; (b) there shall not be in effect any statute, rule or
regulation enacted, promulgated or deemed applicable by any governmental
authority of competent jurisdiction that makes consummation of the Merger
illegal and no temporary restraining order, preliminary or permanent injunction
or other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect; provided, however, that each of the parties shall use all reasonable
efforts to prevent the entry of any such injunction or other order and to
appeal as promptly as possible any injunction or other order that may be
entered; and (c) if required by the Company's Articles of Incorporation or the
IBCA, the Merger Agreement shall have been approved and adopted by the
affirmative vote of the holders of the requisite number of Shares in accordance
with the Articles of Incorporation and By-Laws of the Company and the IBCA.
Conditions to the Obligations of the Company. The obligation of the Company
pursuant to the Merger Agreement to consummate the Merger is also subject to
Parent or the Purchaser having made all filings required prior to the Closing
with respect to, and having paid to the proper taxing authorities or made
adequate provision for the payment of, all transfer Taxes payable in connection
with the Merger.
Termination. The Merger Agreement provides that it may be terminated at any
time prior to the Effective Time, whether before or after approval by the
shareholders of the Company: (a) by mutual consent of the Board of Directors of
Parent and the Board of Directors of the Company; (b) by action of the Board of
Directors of Parent or action of the Board of Directors of the Company if at
least that number of Shares required by the Minimum Condition shall not have
been purchased in the Offer on or before November 20, 1995, or the Merger shall
not have been consummated on or before February 20, 1996, provided, however,
that the Board of Directors of Parent shall have no right to terminate the
Merger Agreement after the
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consummation of the Offer; and provided, further, that the right to terminate
the Merger Agreement shall not be available to any party whose failure to
fulfill any obligation under the Merger Agreement has been the cause of, or
resulted in, the failure of the Offer or the Merger, as the case may be, to
occur on or before the aforesaid dates; (c) by either Parent or the Company if
the Offer shall expire or terminate in accordance with its terms without any
Shares having been purchased thereunder and, in the case of termination by
Parent, the Purchaser shall not have been required by the terms of the Offer or
the Merger Agreement to purchase any Shares pursuant to the Offer; (d) by the
Company if (i) the Purchaser shall not timely amend the Offer as provided in
the Merger Agreement or (ii) Parent, DH Holdings or the Purchaser shall fail to
comply in any material respect with any of its covenants or agreements required
to be complied with by it before the date of such termination and such failure
to comply shall not be cured within four business days following receipt by
Parent from the Company of written notice of such failure and demand for cure;
(e) by either Parent, the Purchaser or the Company, if any court of competent
jurisdiction in the United States or other governmental agency of competent
jurisdiction shall have issued an order, decree or ruling or taken any other
action restraining, permanently enjoining or otherwise prohibiting the
consummation of the Offer or the Merger, and such order, decree, ruling or
other action shall have become final and non-appealable; (f) by the Company if
prior to the purchase of Shares pursuant to the Offer, and after receipt of a
Superior Proposal (defined in the Merger Agreement as a proposal to acquire,
directly or indirectly, more than 50% of the Shares or all or any substantial
portion of the consolidated assets of the Company and its subsidiaries and on
terms which the Board of Directors of the Company determines in its good faith
judgment, based on the advice of Goldman, Sachs & Co. to be more favorable to
the Company's shareholders than the Offer and the Merger taken together) and at
a time that is after the second business day after Parent has received written
notice from the Company advising Parent of the Company's receipt of a Superior
Proposal, specifying the material terms and conditions of such Superior
Proposal and identifying the person making such Superior Proposal, the Board of
Directors of the Company or any committee thereof (x) shall have withdrawn or
modified in a manner adverse to the Purchaser or Parent, and in a manner
consistent with the Merger Agreement (including as to timing and contents of
notice to Parent with respect to any Superior Proposal), its approval or
recommendation of the Offer, the Merger Agreement, the Merger or any other
transaction contemplated by any of the foregoing or (y) shall have recommended
a Superior Proposal or (z) shall have resolved to do any of the foregoing;
provided, however, that such termination under this clause (f) shall not be
effective until the Company has made payment to DH Holdings of the Fee (as
defined below) required to be paid pursuant to the Merger Agreement and has
paid to Parent $1.5 million for Expenses (as defined below) (Parent agrees to
refund any excess of such amount over actual Expenses) or deposited with a
mutually acceptable escrow agent $1.5 million for reimbursement to Parent, DH
Holdings and the Purchaser of Expenses; or (g) by the Company, upon approval of
the Board of Directors of the Company, if, prior to the purchase of Shares
pursuant to the Offer, the Board of Directors of the Company shall have
withdrawn or modified in a manner adverse to the Purchaser or Parent, and in a
manner consistent with the Merger Agreement (including as to timing and
contents of notice to Parent with respect to any Superior Proposal), its
approval or recommendation of the Offer, the Merger Agreement or the Merger in
order to approve the execution by the Company of a definitive agreement
providing for the acquisition of the Company or its assets or Shares pursuant
to a Superior Proposal; provided, however, that such termination under this
clause (g) shall not be effective until the Company has made payment to DH
Holdings of the Fee and has paid or deposited with a mutually acceptable escrow
agent $1.5 million for reimbursement to Parent, DH Holdings and Purchaser of
Expenses (Parent agrees to refund any excess of such amount paid over actual
Expenses).
In the event of termination of the Merger Agreement and abandonment of the
Merger by Parent, the Purchaser or the Company, written notice thereof shall
forthwith be given to the others, and the Merger Agreement shall terminate and
the Merger shall be abandoned, without further action by any of the parties
thereto. The Purchaser agrees that any termination by Parent shall be
conclusively binding upon it, whether given expressly on its behalf or not, and
the Company shall have no further obligation with respect to it. If the Merger
Agreement is terminated, no party thereto shall have any liability or further
obligation to any other party to the Merger Agreement, provided that any
termination shall be without prejudice to the rights of any party thereto
arising out of breach by any other party of any covenant or agreement contained
in the
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Merger Agreement, and provided further that certain obligations set forth in
the Merger Agreement shall in any event survive any termination.
Fees and Expenses. Pursuant to the Merger Agreement, in the event that: (a)
any person (including, without limitation, the Company or any affiliate
thereof) or group, other than Parent or any affiliate of Parent, shall have
become the beneficial owner of more than 15% of the then outstanding Shares and
thereafter the Merger Agreement shall have been terminated pursuant to its
terms and within 12 months of such termination a Third Party Acquisition (as
hereinafter defined) shall occur; or (b) any person or group shall have
commenced, publicly proposed or communicated to the Company a proposal that is
publicly disclosed for a tender or exchange offer for more than 30% (or which,
assuming the maximum amount of securities which could be purchased, would
result in any person or group beneficially owning more than 30%) of the then
outstanding Shares or otherwise for the direct or indirect acquisition of the
Company or all or substantially all of its assets for per Share consideration
having a value greater than the per Share amount proposed to be paid pursuant
to the Offer under the Merger Agreement and (i) the Offer shall have remained
open for at least 20 business days, (ii) the Minimum Condition shall not have
been satisfied and (iii) the Merger Agreement shall have been terminated
pursuant to the provisions described in "Termination" above; and (c) the Merger
Agreement is terminated pursuant to clause (f) or (g) of "Termination" above;
then, in any such event, the Company shall pay DH Holdings promptly (but in no
event later than one business day after the first of such events shall have
occurred) a fee of $6 million (the "Fee"), which amount shall be payable in
immediately available funds, plus all Expenses (defined as all out-of-pocket
expenses and fees up to $1.5 million in the aggregate (including, without
limitation, fees and expenses payable to all banks, investment banking firms,
other financial institutions and other persons and their respective agents and
counsel for arranging, committing to provide or providing any financing for the
Offer, the Merger and any transactions contemplated thereby or structuring the
transactions and all fees of counsel, accountants, experts and consultants to
Parent, DH Holdings and the Purchaser, and all printing and advertising
expenses) actually incurred or accrued by either of them or on their behalf in
connection with the transactions, including, without limitation, litigation
related thereto and the financing thereof, and actually incurred or accrued by
banks, investment banking firms, other financial institutions and other persons
and assumed by Parent, DH Holdings or the Purchaser in connection with the
negotiation, preparation, execution and performance of the Merger Agreement,
the structuring and financing of the Offer, the Merger and any transactions
contemplated thereby and any litigation and any financing commitments or
agreements relating thereto); provided that, in the case described in clause
(b) above, if (x) Parent has terminated the Merger Agreement and (y) the Board
of Directors of the Company or any committee thereof (A) shall not have
withdrawn or modified in a manner adverse to the Purchaser or Parent its
approval or recommendation of the Offer, the Merger Agreement or the Merger,
(B) shall not have approved or recommended the proposal of such person or group
and (C) shall not have resolved to do any of the foregoing, the Company shall
pay to DH Holdings on such termination all Expenses and shall pay the Fee only
if, within 12 months of such termination, a Third Party Acquisition shall
occur.
"Third Party Acquisition" means the occurrence of any of the following
events: (i) the acquisition of the Company by merger, consolidation or other
business combination transaction by any person other than Parent, the Purchaser
or any affiliate thereof (a "Third Party"); (ii) the acquisition by any Third
Party of 50% or more (in book value or market value) of the total assets of the
Company and its subsidiaries, taken as a whole; (iii) the acquisition by a
Third Party of 50% or more of the outstanding Shares whether by tender offer,
exchange offer or otherwise; (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 50% or more of the
outstanding Shares.
Except as set forth above, all costs and expenses incurred in connection with
the Merger and the Offer, the Merger Agreement and any transactions
contemplated thereby shall be paid by the party incurring such expenses,
whether or not any such transaction is consummated.
22
<PAGE>
In the event that the Company shall fail to pay the Fee or any Expenses when
due, the term "Expenses" shall be deemed to include the costs and expenses
actually incurred or accrued by Parent, DH Holdings and the Purchaser
(including, without limitation, fees and expenses of counsel) in connection
with the collection under and enforcement of the provisions of the Merger
Agreement relating thereto, together with interest on such unpaid Fee and
Expenses, commencing on the date that the Fee or such Expenses became due, at a
rate equal to the rate of interest publicly announced by Citibank, N.A., from
time to time, in the City of New York, as such bank's Prime Rate plus 1.00%.
Amendment and Modification. Subject to applicable law, the Merger Agreement
may be amended, modified or supplemented only by written agreement of Parent,
DH Holdings, the Purchaser and the Company at any time prior to the Effective
Time with respect to any of the terms contained therein, provided, that after
the Merger Agreement is adopted by the Company's shareholders, no such
amendment or modification shall be made that reduces the amount or changes the
form of the Merger Consideration or otherwise materially and adversely affects
the rights of the Company's shareholders thereunder, without the further
approval of such shareholders.
Waiver of Compliance; Consents. Any failure of Parent, DH Holdings, or the
Purchaser, on the one hand, or the Company, on the other hand, to comply with
any obligation, covenant, agreement or condition in the Merger Agreement, may
be waived by the Company or Parent, respectively, only by a written instrument
signed by the party granting such waiver (and, in the case of the Company,
approved with the concurrence of a majority of the Independent Directors, if
required under the Merger Agreement), but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. Whenever the Merger Agreement requires or permits consent by or
on behalf of any party hereto, such consent shall be given in writing in a
manner consistent with the requirements for a waiver of compliance as set forth
above. DH Holdings and the Purchaser agree that any consent or waiver of
compliance given by Parent under the Merger Agreement shall be conclusively
binding upon them, whether given expressly on their behalf or not.
Survival of Warranties. Each and every representation and warranty, except
for representations and warranties concerning finders and investment bankers
(if the Merger Agreement is terminated before consummation of the Offer) made
by the Company in Article IV of the Merger Agreement, and each and every
representation and warranty made by Parent, DH Holdings and the Purchaser in
Article V, except for representations and warranties concerning capitalization,
finders and investment bankers (if the Merger Agreement is terminated before
consummation of the Offer) shall expire with, and be terminated and
extinguished by, the Merger, or the termination of the Merger Agreement
pursuant to its terms.
9. AMENDED CONDITIONS OF THE OFFER
Pursuant to the Merger Agreement, the conditions of the Offer contained,
among other places, in the Introduction to and Section 14 of the Offer to
Purchase 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) under the Exchange Act
(relating to the Purchaser's obligation to pay for or return tendered shares
after the termination or withdrawal of the Offer), to pay for any Shares not
theretofore accepted for payment or paid for, and the Purchaser may (subject to
the terms of the Merger Agreement) amend or terminate the Offer as to such
Shares not theretofore accepted for payment or paid for, the purchase of,
and/or (subject to any such applicable rules and regulations of the
Commission), (i) unless there are validly tendered and not properly withdrawn
prior to the expiration of the Offer that number of Shares which, when
aggregated with the Shares currently owned by Parent and any of its
subsidiaries, represents at least two-thirds of the Shares on a fully-diluted
basis or (ii) if at any time on or after the date of the Merger Agreement and
at or before the time that the particular Shares are accepted for payment
(whether or not any other Shares shall theretofore have been accepted for
payment or paid for pursuant to the Offer) any of the following conditions
exists:
23
<PAGE>
(a) there shall have been any action or proceeding brought by any
governmental authority before any federal or state court, or any order or
preliminary or permanent injunction entered in any action or proceeding
before any federal or state court or governmental, administrative or
regulatory authority or agency, located or having jurisdiction within the
United States or any country or economic region in which either the Company
or Parent, directly or indirectly, has material assets or operations, or
any statute, rule, regulation, legislation, interpretation, judgment or
order enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to the Purchaser, the Company or any subsidiary or affiliate of
the Purchaser or the Company or the Offer or the Merger, by any legislative
body, court, government or governmental, administrative or regulatory
authority or agency located or having jurisdiction within the United States
or any country or economic region in which either the Company or Parent,
directly or indirectly, has material assets or operations, which could
reasonably be expected to have the effect of: (i) making illegal, or
otherwise directly or indirectly prohibiting, materially restraining or
making materially more costly, the making of the Offer, the acceptance for
payment of, payment for, or ownership, directly or indirectly, of some or
all of the Shares by Parent or the Purchaser, the consummation of any of
the transactions contemplated by the Merger Agreement or materially
delaying the Merger; (ii) prohibiting or materially limiting the ownership
or operation by the Company or any of its subsidiaries that owns a material
portion of the business and assets of the Company and its subsidiaries
taken as a whole, or by Parent, the Purchaser or any of Parent's
subsidiaries, of all or any material portion of the business or assets of
the Company and its subsidiaries taken as a whole or Parent and its
subsidiaries taken as a whole, or compelling the Purchaser, Parent or any
of Parent's subsidiaries to dispose of or hold separate all or any material
portion of the business or assets of the Company and its subsidiaries taken
as a whole or Parent and its subsidiaries taken as a whole, as a result of
the transactions contemplated by the Offer or the Merger Agreement; (iii)
imposing limitations on the ability of the Purchaser, Parent or any of
Parent's subsidiaries effectively to acquire or hold or to exercise full
rights of ownership of Shares, including, without limitation, the right to
vote any Shares acquired or owned by Parent or the Purchaser or any of
Parent's subsidiaries on all matters properly presented to the shareholders
of the Company, including, without limitation, the adoption and approval of
the Merger Agreement and the Merger or the right to vote any shares of
capital stock of any subsidiary (other than immaterial subsidiaries)
directly or indirectly owned by the Company; (iv) requiring divestiture by
Parent or the Purchaser, directly or indirectly, of any Shares; or (v)
which could reasonably be expected to materially adversely affect the
business, financial condition or results of operations of the Company and
its subsidiaries taken as a whole or the value of the Shares or of the
Offer to the Purchaser or Parent;
(b) there shall have occurred, or the Purchaser shall have become aware
of any fact that has had, or could reasonably be expected to have, a
Material Adverse Effect (defined in the Merger Agreement as a material
adverse effect on the business, properties, 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 any national securities exchange
or in the over-the-counter market in the United States, (ii) a decline of
at least 20% in either the Dow Jones Average of Industrial Stocks or the
Standard & Poor's 500 index from that existing at the close of business on
August 18, 1995, (iii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iv) any
limitation (whether or not mandatory) by any government or governmental,
administrative or regulatory authority or agency, domestic or foreign, on,
or any other event that could reasonably be expected to materially
adversely affect, the extension of credit by banks or other lending
institutions in the United States or (v) a commencement of a war or armed
hostilities or other national or international calamity directly or
indirectly involving the United States which would reasonably be expected
to have a Material Adverse Effect or prevent (or materially delay) 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
24
<PAGE>
promulgated under the Exchange Act) of 15% or more 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
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 adverse to 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 such 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 (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 material respect, in each
case as if such representations and warranties (other than representations
and warranties made as of a specified date) were made at the time of such
determination;
(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 prior to the time of such determination; or
(g) the Merger Agreement shall have been terminated in accordance with
its terms or the Offer shall have been terminated with the consent of the
Company;
which, in the good faith sole judgment of the Purchaser with respect to each
and every matter referred to above and regardless of the circumstances
(including any action or inaction by the Purchaser or any of its affiliates not
inconsistent with the terms hereof and the terms of the Merger Agreement)
giving rise to any such condition, makes it inadvisable to proceed with the
Offer or with such acceptance for payment of or payment for Shares or to
proceed with the Merger.
The foregoing conditions are for the sole benefit of the Purchaser and may be
asserted by the Purchaser regardless of the circumstances giving rise to any
such condition or may be waived by the Purchaser in whole or in part at any
time and from time to time in its sole discretion (subject to the terms of the
Merger Agreement). 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, the waiver
of any such right with respect to particular facts and other circumstances
shall not be deemed a waiver with respect to any other facts and circumstances,
and each such right shall be deemed an ongoing right that may be asserted at
any time and from time to time.
10. SOURCE AND AMOUNT OF FUNDS
Section 12 of the Offer to Purchase is hereby amended and restated as
follows.
The total amount of funds required by the Purchaser to purchase all of the
Shares pursuant to the Offer and the Merger and to pay fees and expenses
related to the Offer and the Merger is estimated to be approximately $240
million. The Purchaser plans to obtain all funds needed for the Offer and the
Proposed Merger through a capital contribution from Parent. Parent plans to
obtain funds for such capital contribution through its existing Credit
Agreement, dated as of September 7, 1990, as amended, among Parent and the
banks listed therein (the "Credit Facility"), and through a committed credit
line provided by Bank of America Illinois (the "Committed Line"). The Credit
Facility provides for revolving credit of up to $200 million for general
corporate purposes through August 1, 1997. At present, there is no outstanding
indebtedness under the Credit Facility. Loans under the Credit Facility bear
interest at one of the following rates, as selected by
25
<PAGE>
Parent on the date of borrowing: (i) the Base Rate (as defined in the Credit
Facility); (ii) Adjusted CD Rate (as defined in the Credit Facility); or (iii)
the Eurodollar Rate (as defined in the Credit Facility) plus, in the case of
(ii) and (iii), a margin (ranging from 1/4 of one percent to 3/4 of one
percent) based on the leverage ratio of Parent at the end of the fiscal quarter
most recently then ended. As of the date of this Supplement, the applicable
margin would be 1/4 of one percent, which margin is expected to increase to 3/8
of one percent based on the pro forma capitalization of Parent after the Offer
and the proposed Merger. The effective interest rate as of the date of this
Supplement would be approximately 6.25%. The Credit Facility contains covenants
relating to, among other things, the maintenance of working capital, net worth,
debt levels and interest coverage and restrictions on the payment of dividends.
The members of the bank group providing the Credit Facility are Bankers Trust
Company, Bank of America Illinois, First Chicago Corp., The Chase Manhattan
Bank (National Association), Toronto Dominion Bank, Credit Suisse, Bank of Nova
Scotia, Industrial Bank of Japan, Bank of Tokyo, Chemical Banking Corporation,
Credit Lyonnais, NationsBank Corporation and Dresdner Bank Aktiengesellschaft.
The Committed Line provides for credit of up to $50 million through a date 364
days following execution of final credit documentation, but in no event later
than August 31, 1996, under substantially the same terms and conditions as the
Credit Facility.
In the Merger Agreement, each of Parent and the Purchaser has represented
that it has available to it the funds necessary to consummate the Offer and the
Merger and the transactions contemplated thereby.
11. CERTAIN LEGAL MATTERS
Section 15 of the Offer to Purchase is amended and supplemented by this
Section 11 of this Supplement.
State Anti-Takeover Statutes. The Board of Directors of the Company adopted
resolutions on August 20, 1995, which have the effect of exempting the Offer
and Merger from the Business Combination Law.
Litigation. Pursuant to the Merger Agreement, each of Parent, the Purchaser
and the Company agreed to use best efforts to obtain a dismissal without
prejudice of the litigation brought by Parent and the Purchaser against the
Company in the Northern District of Illinois, with each party bearing its own
costs and attorneys' fees therefor.
On July 20, 1995, a stockholder action was commenced against the Company and
certain of its directors in the Circuit Court of Cook County, Illinois (County
Department, Chancery Division). The action generally seeks, among other things,
a judgment: (a) declaring the action to be a proper class action, (b) ordering
the individual defendants to carry out their fiduciary duties to the plaintiff
and to other shareholders of the Company by announcing their intention to (i)
cooperate with any person having a bona fide interest in proposing transactions
to maximize shareholder value; (ii) undertake an appropriate evaluation of the
Company's worth as an acquisition candidate; (iii) take steps to enhance the
Company's attractiveness as an acquisition candidate; (iv) take appropriate
steps to create an auction of the Company; (v) act independently so that
interests of public shareholders will be protected; and (vi) adequately ensure
that no conflicts of interest exist between their interests and their fiduciary
obligation to maximize shareholder value, (c) ordering the defendants to
account for damages as a result of the matters alleged, (d) awarding costs, and
(e) granting such other relief as may be just and proper.
Antitrust. The waiting period under the HSR Act with respect to purchases of
Shares pursuant to the Offer expired at 11:59 p.m., New York City time, on
August 8, 1995.
12. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making
of the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, the Purchaser
may, in its discretion, take such action as it may deem necessary to make the
Offer in any jurisdiction and extend the Offer to holders of Shares in such
jurisdiction.
26
<PAGE>
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to be
made on behalf of the Purchaser by the Dealer Manager or one or more registered
brokers or dealers that are licensed under the laws of such jurisdiction.
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.
Such Schedule 14D-1 and any amendments thereto, including exhibits, may be
examined and copies may be obtained from the office of the Commission in the
same manner as described in Section 8 of the Offer to Purchase with respect to
information concerning the Company, except that they 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 PARENT OR THE PURCHASER NOT CONTAINED IN THE OFFER
TO PURCHASE, THIS SUPPLEMENT OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR
MADE, ANY SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED.
TK ACQUISITION CORPORATION
August 22, 1995
27
<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 should be sent or delivered by each
shareholder of the Company or by such shareholder's broker, dealer, commercial
bank, trust company or other nominee to the Depositary at one of its addresses
set forth below:
THE DEPOSITARY FOR THE OFFER IS:
BANK OF AMERICA ILLINOIS
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight Delivery:
(312) 923-0271
Bank of America Illinois Information and Confirm by Bank of America Illinois
Corporate Trust Depositary Telephone: 231 South LaSalle Street
P.O. Box 805857 (800) 962-9324 19th Floor Window
Chicago, IL 60680-4120 (Clark Street Side)
Chicago, IL 60697
Attn: Corporate Trust
Operations Window
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Additional copies of the Offer to Purchase and this
Supplement, the Letter of Transmittal and other tender offer materials may be
obtained from the Information Agent as set forth below, and will be furnished
promptly at the Purchaser's expense. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
(212) 269-5550 (Call Collect)
or
(800) 758-7358
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
World Financial Center
North Tower
New York, New York 10281-1305
(212) 236-4565 (Call Collect)
<PAGE>
EXHIBIT 11(a)(12)
SHAREHOLDERS WISHING TO TENDER THEIR SHARES SHOULD USE THIS LETTER OF
TRANSMITTAL. SHAREHOLDERS WHO HAVE PREVIOUSLY VALIDLY TENDERED (AND
NOT PROPERLY WITHDRAWN) SHARES USING THE BLUE LETTER OF
TRANSMITTAL NEED NOT TAKE ANY FURTHER ACTION IN ORDER TO
TENDER SUCH SHARES.
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
JOSLYN CORPORATION
PURSUANT TO THE OFFER TO PURCHASE DATED JULY 24, 1995
AND THE SUPPLEMENT DATED AUGUST 22, 1995
BY
TK ACQUISITION CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DANAHER CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, SEPTEMBER 1, 1995,UNLESS THE
OFFER IS FURTHER EXTENDED.
The Depositary for the Offer is:
BANK OF AMERICA ILLINOIS
By Mail: By Facsimile Transmission: By Hand or Overnight
Courier:
Bank of America llinois (312) 923-0271 Bank of America Illinois
Corporate Trust Depositary 231 South La Salle Street
P.O. Box 805857 Confirm by Telephone: 19th Floor Window
Chicago, IL 60680-4120 (Clark Street Side)
(800) 962-9324 Chicago, IL 60697
Attn: Corporate Trust
Operations Window
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. TENDERING SHAREHOLDERS
MAY CONTINUE TO USE THE ORIGINAL BLUE LETTER OF TRANSMITTAL THAT WAS PROVIDED
WITH THE OFFER TO PURCHASE.
SIGNATURES MUST BE PROVIDED ON THE INSIDE AND REVERSE BACK COVER. PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE>
This revised GREEN Letter of Transmittal or the previously circulated BLUE
Letter of Transmittal is to be completed by holders of Shares (as defined
below) either if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined in Section 2 of the Offer to Purchase (as defined
below)) is utilized, if a tender of Shares are to be made by book-entry
transfer into the account of Bank of America Illinois 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.
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 prior to the
Expiration Date (as defined in Section 1 of the Supplement (as defined
below)), or who cannot complete the procedure for book-entry transfer on a
timely basis, must tender their Shares according to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase. See Instruction 2.
Delivery of documents to a Book-Entry Transfer Facility does not constitute
delivery to the Depositary.
[_]CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
Check Box of Book-Entry Transfer Facility:
[_] DTC [_] MSTC [_] PDTC
Account Number: ____________________ Transaction Code Number: _____________
[_]CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s): ___________________________________________
Window Ticket Number (if any): _____________________________________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Name of Institution which Guaranteed Delivery: _____________________________
<PAGE>
DESCRIPTION OF SHARES TENDERED
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL SHARE CERTIFICATE(S) AND SHARE(S) TENDERED
IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST, IF NECESSARY)
- -----------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES
REPRESENTED BY
SHARE CERTIFICATE SHARE NUMBER OF
NUMBER(S)* CERTIFICATE(S)* SHARES TENDERED**
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
TOTAL SHARES
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by Book-Entry Shareholders.
** Unless otherwise indicated, it will be assumed that all Shares
represented by certificates delivered to the Depositary are being
tendered. See Instruction 4.
Ladies and Gentlemen:
The undersigned hereby tenders to TK Acquisition Corporation, a Delaware
corporation ("Purchaser") and an indirect wholly owned subsidiary of Danaher
Corporation, a Delaware corporation ("Danaher"), the above-described shares of
Common Stock, $1.25 par value per share (the "Shares"), of Joslyn Corporation,
an Illinois corporation (the "Company"), and the associated Common Stock
Purchase Rights, (the "Rights"; unless the context otherwise requires, such
Rights are deemed to be included in all references to the "Shares") issued
pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as
of September 2, 1994, between the Company and The First National Bank of
Chicago, an Illinois banking corporation, as Rights Agent (the "Rights
Agent"), at a purchase price of $34 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 July 24, 1995 (the "Offer to Purchase"),
as amended and supplemented by the Supplement to the Offer to Purchase, dated
August 22, 1995 (the "Supplement") and in this revised GREEN Letter of
Transmittal (which together with the Supplement, the Offer to Purchase and the
original BLUE Letter of Transmittal constitutes the "Offer"). The undersigned
understands that Purchaser reserves the right to transfer or assign, in whole
or from time to time in part, to one or more of its affiliates, the right to
purchase all or any portion of the Shares tendered pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith in accordance with the terms and subject to the conditions
of the Offer, the undersigned hereby sells, assigns and transfers to, or upon
the order of, Purchaser all right, title and interest in and to all of the
Shares that are being tendered hereby and any and all dividends, distributions
(including additional Shares) and rights declared, paid or issued with respect
to the tendered Shares on or after July 21, 1995 and payable or distributable
to the undersigned on a date prior to the transfer to the name of Purchaser
(or nominee or transferee of Purchaser) on the Company's stock transfer
records of the Shares tendered herewith (collectively, a "Distribution"), and
irrevocably constitutes and appoints the Depositary the true and lawful agent
and attorney-in-fact of the undersigned with respect to such Shares (and any
Distributions) with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) to (a) deliver
certificates for such Shares (and any Distributions) or transfer ownership of
such Shares (and any Distributions) 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 Purchaser, (b) present such
Shares (and any Distributions) for transfer on the books of the Company and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and any Distributions), all in accordance with the
terms and subject to the conditions of the Offer.
<PAGE>
The undersigned irrevocably appoints Steven M. Rales, Mitchell P. Rales and
Patrick W. Allender, and each of them, or any other designees of Purchaser, as
such shareholder's attorneys-in-fact and proxies, each with full power of
substitution, to the full extent of such shareholder's rights with respect to
the Shares tendered by such shareholder and accepted for payment by Purchaser
and with respect to any and all other shares or other securities issued or
issuable in respect of such Shares on or after July 24, 1995. Such appointment
will be effective upon the acceptance for payment of such Shares by Purchaser
in accordance with the terms of the Offer. Upon such acceptance for payment,
all prior powers of attorney and proxies given by such shareholder with
respect to such Shares (and such other shares and securities) will be revoked
without further action, and no subsequent proxies may be given nor any
subsequent written consents executed (and, if given or executed, will not be
deemed effective). The proxies (or other designees of Purchaser) will be
empowered to exercise all voting and other rights of such shareholder as they
in their sole discretion may deem proper at any annual or special meeting of
the Company's shareholders or any adjournment or postponement thereof, by
consent in lieu of any such meeting or otherwise. Purchaser reserves the right
to require that, in order for Shares to be deemed validly tendered,
immediately upon Purchaser's payment for such Shares Purchaser must be able to
exercise full voting rights with respect to such Shares.
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the Shares (and
any Distributions) tendered hereby and (b) when the Shares are accepted for
payment by Purchaser, Purchaser will acquire good, marketable and unencumbered
title to the Shares (and any Distributions), free and clear of all liens,
restrictions, charges and encumbrances, and the same will not be subject to
any adverse claim. The undersigned, upon request, shall execute and deliver
any signature guarantee or additional documents deemed by the Depositary or
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Shares (and any Distributions) tendered hereby. In addition,
the undersigned shall promptly remit and transfer to the Depositary for the
account of Purchaser any and all Distributions in respect of the Shares
tendered hereby, accompanied by appropriate documentation of transfer, and
pending such remittance or appropriate assurance thereof, 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
Purchaser in its sole discretion.
No authority herein conferred or agreed to be conferred by this Letter of
Transmittal shall be affected by, and all such authority shall survive the
death or incapacity of the undersigned. All obligations of the undersigned
hereunder shall be binding upon the heirs, executors, administrators, trustees
in bankruptcy, personal and legal representatives, successors and assigns of
the undersigned.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to
the Expiration Date (as defined in Section 1 of the Supplement) and, unless
theretofore accepted for payment by Purchaser pursuant to the Offer, may also
be withdrawn at any time after September 21, 1995. See Section 4 of the Offer
to Purchase.
The undersigned understands that tenders of Shares pursuant to any of the
procedures described in Section 2 of the Supplement and Section 3 of the Offer
to Purchase and in the instructions hereto will constitute a binding agreement
between the undersigned and Purchaser upon the terms and subject to the
conditions set forth in the Offer, including the undersigned's representation
and warranty that the undersigned owns the Shares being tendered.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificate(s)
for Shares not tendered or not accepted for payment in the name(s) of the
registered holder(s) appearing under "Description of Shares Tendered."
Similarly, unless otherwise indicated herein under "Special Delivery
Instructions," please mail the check for the purchase price and/or any
certificate(s) for Shares not tendered or not accepted for payment (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under "Description of Shares Tendered." In the event that
both the Special Delivery Instructions and the Special Payment Instructions
are completed, please issue the check for the purchase price and/or any
certificate(s) for Shares not tendered or accepted for payment in the name of,
and deliver such check and/or such certificates to, the person or persons so
indicated. Unless otherwise indicated herein under "Special Payment
Instructions," please credit any Shares tendered herewith by book-entry
transfer that are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility designated above. The undersigned recognizes that
Purchaser has no obligation, pursuant to the Special Payment Instructions, to
transfer any Shares from the name(s) of the registered holder(s) thereof if
Purchaser does not accept for payment any of the Shares so tendered.
<PAGE>
[_]CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING THE SHARES THAT YOU OWN
HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of shares represented by the lost or destroyed
certificates: ___________________________________________
Please fill in the remainder of this Letter of Transmittal.
SPECIAL PAYMENT INSTRUCTIONS SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certifi- To be completed ONLY if certifi-
cate(s) for Shares not tendered cate(s) for Shares not tendered
or not accepted for payment or not accepted for payment
and/or the check for the purchase and/or the check for the purchase
price of Shares accepted for pay- price of Shares accepted for pay-
ment are to be issued in the name ment are to be sent to someone
of someone other than the under- other than the undersigned or to
signed or if Shares tendered by the undersigned at an address
book-entry transfer which are not other than that shown above.
accepted for payment are to be
returned by credit to an account
maintained at a Book-Entry Trans-
fer Facility.
Mail [_] check [_] certificates
to:
Name: ____________________________
(PLEASE PRINT)
Issue [_] check [_] certificates Address: _________________________
to:
__________________________________
Name: ____________________________ __________________________________
(PLEASE PRINT) (INCLUDE ZIP CODE)
Address: _________________________ (TAXPAYER IDENTIFICATION OR
SOCIAL SECURITY NO.)
__________________________________ (SEE SUBSTITUTE FORM W-9 ON BACK
COVER)
__________________________________ __________________________________
(INCLUDE ZIP CODE)
(TAXPAYER IDENTIFICATION OR
SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 ON BACK
COVER)
__________________________________
Credit Shares tendered by book-
entry transfer that are not ac-
cepted for payment to (Check
One):
[_] DTC [_] MSTC [_] PDTC
__________________________________
(ACCOUNT NUMBER)
<PAGE>
IMPORTANT:
SHAREHOLDERS SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
X
_______________________________________________________
SIGN
X HERE
_______________________________________________________
SIGNATURE(S) OF HOLDER(S)
Dated: ________________________________________________
(Must be signed by the registered holder(s) exactly as
name(s) appear(s) on Share Certificate(s) or on a
security position listing or by person(s) authorized
to become registered holder(s) by certificates and
document 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)
Daytime Telephone Number: ( )
___________________________________
(AREA CODE)
Tax Identification or Social Security No.: ____________
(See Substitute Form W-9 on Reverse Side)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature: _________________________________
Name: _________________________________________________
Name of Firm: _________________________________________
Address:
______________________________________________
______________________________________________
______________________________________________
(INCLUDE ZIP CODE)
Daytime Telephone Number: ( )
______________________________
(AREA CODE)
Dated: ______________________ , 1995
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) of Shares (which term, for purposes of this document,
shall include any participant in a Book-Entry Transfer Facility whose name
appears on a security position listing as the owner of Shares) tendered
herewith, unless such holder(s) has completed either the box entitled "Special
Payment Instructions" or the box entitled "Special Delivery Instructions"
above, or (b) if such Shares are tendered for the account of a firm which is a
bank, broker, dealer, credit union, savings association or other entity which
is a member in good standing of a recognized Medallion Program approved by the
Securities Transfer Association (each of the foregoing being referred to as an
"Eligible Institution"). In all other cases, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution. See Instruction 5
of this Letter of Transmittal.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
shareholders either if certificates are to be forwarded herewith or, unless an
Agent's Message is utilized, if tenders are to be made pursuant to the
procedure for tender by book-entry transfer set forth in Section 3 of the
Offer to Purchase. Certificates for all physically tendered Shares or timely
confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such
Shares into the Depositary's account at a Book-Entry Transfer Facility, as
well as a properly completed and duly executed Letter of Transmittal (or a
facsimile hereof), with any required signature guarantees, or an Agent's
Message in connection with a book-entry transfer, and any other documents
required by this Letter of Transmittal, must be received by the Depositary at
one of its addresses set forth herein prior to the Expiration Date (as defined
in Section 1 of the Supplement).
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates for Shares and all other required
documents to the Depositary prior to the Expiration Date or who cannot
complete the procedure for delivery by book-entry transfer on a timely basis
may tender their Shares by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedure set forth in
Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) such
tender must be made by or through an Eligible Institution; (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in
the form made available by the Purchaser, must be received by the Depositary
on or prior to the Expiration Date; and (iii) the certificates (or a Book-
Entry Confirmation) representing all tendered Shares, in proper form for
transfer, in each case together with the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees (or, in the case of a book-entry delivery, an Agent's Message) and
any other documents required by this Letter of Transmittal, must be received
by the Depositary within five New York Stock Exchange, Inc. trading days after
the date of execution of such Notice of Guaranteed Delivery.
TENDERING SHAREHOLDERS SHOULD USE THIS REVISED GREEN LETTER OF TRANSMITTAL
AND THE BLUE NOTICE OF GUARANTEED DELIVERY PROVIDED WITH THE SUPPLEMENT.
TENDERING SHAREHOLDERS MAY CONTINUE TO USE THE ORIGINAL BLUE LETTER OF
TRANSMITTAL AND GRAY NOTICE OF GUARANTEED DELIVERY THAT WERE PROVIDED WITH THE
OFFER TO PURCHASE. ALTHOUGH SUCH BLUE LETTER OF TRANSMITTAL INDICATES THAT THE
OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK TIME, ON FRIDAY, AUGUST 18,
1995, SHAREHOLDERS WILL BE ABLE TO TENDER (OR WITHDRAW) THEIR SHARES PURSUANT
TO THE OFFER UNTIL 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, SEPTEMBER 1,
1995 (OR SUCH LATER DATE TO WHICH THE OFFER MAY BE EXTENDED).
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT
THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution
of this Letter of Transmittal (or a facsimile hereof), waive any right to
receive any notice of the acceptance of their Shares for payment.
<PAGE>
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and any other required
information should be listed on a separate signed schedule attached hereto.
4. PARTIAL TENDERS. (Not applicable to shareholders who tender by book-entry
transfer) If fewer than all the Shares evidenced by any certificate submitted
are to be tendered, fill in the number of Shares which are to be tendered in
the box entitled "Number of Shares Tendered." In such cases, new certificates
for the Shares that were evidenced by your old certificates, but which were
not tendered by you, will be sent to you, unless otherwise provided in the
appropriate box on this Letter of Transmittal, as soon as practicable after
the Expiration Date. All Shares represented by certificates delivered to the
Depositary will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the face of the certificate(s) without alteration, enlargement or any
change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and proper evidence satisfactory
to Purchaser of their authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or not purchased are to be issued in the
name of, a person other than the registered holder(s). Signatures on such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the certificate(s) listed, the certificate(s) must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear on the
certificate(s). Signatures on such certificates and stock powers must be
guaranteed by an Eligible Institution, unless the signature is that of an
Eligible Institution.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6,
Purchaser will pay any stock transfer taxes with respect to the purchase of
Shares pursuant to the Offer. If, however, payment of the purchase price is to
be made to, or if certificate(s) for Shares not tendered or accepted for
payment are to be registered in the name of, any person other than the
registered owner(s), or if tendered certificate(s) are registered in the name
of any person other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered owner(s)
or such person) payable on account of the transfer to such person will be
deducted from the purchase price unless satisfactory evidence of the payment
of such taxes, or an exemption therefrom, is submitted.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares not tendered or not accepted for
payment are to be issued or returned to, a person other than the signer of
this Letter of Transmittal or if a check and/or such certificates are to be
returned to a person other than the person(s) signing this Letter of
Transmittal or to an address other than that shown in this Letter of
Transmittal, the appropriate boxes on this Letter of Transmittal must be
completed. A shareholder who tenders by book-entry transfer may request that
Shares not accepted for payment be credited to such account maintained at a
Book-Entry Transfer Facility as such shareholder may designate under "Special
Payment Instructions." If no such instructions are given, such Shares not
accepted for payment will be returned by crediting the account at the Book-
Entry Transfer Facility designated above.
8. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by
Purchaser in whole or in part at any time and from time to time in its sole
discretion, subject to the terms of the Merger Agreement (as defined in the
Supplement).
<PAGE>
9. BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. federal income tax
law, a shareholder whose tendered Shares are accepted for payment is required
to provide the Depositary with such shareholder's correct taxpayer
identification number ("TIN"), generally the shareholder's social security or
federal employer identification number, and certain other information, on the
Substitute Form W-9 below. If the Depositary is not provided with the correct
TIN, the Internal Revenue Service may subject the shareholder or other payee
to a $50 penalty. In addition, payments that are made to such shareholder or
other payee with respect to Shares purchased pursuant to the Offer may be
subject to 31% backup withholding.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the shareholder 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 shareholder 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
shareholder 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
shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% of all payments made prior to the time a properly certified TIN
is provided to the Depositary.
The shareholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
Shares or of the last transferee appearing on the transfers attached to, or
endorsed on, the Shares. If the Shares are in more than one name or are not in
the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests for
assistance may be directed to the Dealer Manager or the Information Agent at
their respective addresses and telephone numbers set forth below. Additional
copies of the Offer to Purchase, 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 has been lost, destroyed or stolen, the shareholder should promptly
notify the Depositary by checking the box immediately preceding special
payment/special delivery instructions and indicating the number of Shares
lost. The shareholder 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
SHARE 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>
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME:
BANK OF AMERICA ILLINOIS
- --------------------------------------------------------------------------------
SUBSTITUTE PART 1--PLEASE PROVIDE ----------------------
FORM W-9 YOUR TIN IN THE BOX AT Social Security Number
RIGHT AND CERTIFY BY
SIGNING AND DATING
BELOW
or
DEPARTMENT OF THE ----------------------
TREASURY INTERNAL Employer ID number
REVENUE SERVICE
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 ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of under-reporting interest or dividends on your tax
return. However, if after being notified by the IRS that you were subject
to backup withholding you received another notification from the IRS that
you are no longer subject to backup withholding, do not cross out such Item
(2).
- --------------------------------------------------------------------------------
SIGNATURE _________________________ DATE ________ PART 3--AWAITING
TIN [_]
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.
<PAGE>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office, or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31% of all reportable
payments made to me will be withheld but that such amounts will be refunded
to me if I then provide a taxpayer identification number within sixty (60)
days.
Signature: ______________________________________ Date: __________________
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone
numbers listed below. Additional copies of the Offer to Purchase, the
Supplement, the Letter of Transmittal and other tender offer materials may be
obtained from the Information Agent as set forth below, and will be furnished
promptly at the Purchaser's expense. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
(212) 269-5550 (CALL COLLECT)
OR (800) 758-7358
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
WORLD FINANCIAL CENTER
NORTH TOWER
NEW YORK, NEW YORK 10281-1305
(212) 236-4565 (CALL COLLECT)
<PAGE>
EXHIBIT 11(a)(13)
NOTICE OF GUARANTEED DELIVERY
for
TENDER OF SHARES OF COMMON STOCK
(Including the Associated Common Stock Purchase Rights)
of
JOSLYN CORPORATION
This Revised BLUE Notice of Guaranteed Delivery or one substantially
equivalent hereto must be used to accept the Offer (as defined below) if
certificates representing shares of Common Stock, par value $1.25 per share
(the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"),
and the associated Common Stock Purchase Rights (the "Rights"; unless the
context otherwise requires, such Rights are deemed to be included in references
to the "Shares") issued pursuant to the Rights Agreement, dated as of February
10, 1988, and amended as of September 2, 1994, between the Company and The
First National Bank of Chicago, an Illinois banking corporation, as Rights
Agent, are not immediately available or time will not permit all required
documents to reach Bank of America Illinois (the "Depositary") on or prior to
the Expiration Date (as defined in Section 1 of the Supplement (as defined
below)), or the procedures for delivery by book-entry transfer cannot be
completed on a timely basis. This Notice of Guaranteed Delivery may be
delivered by hand or sent by facsimile transmission or mail to the Depositary.
See Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
BANK OF AMERICA ILLINOIS
By Mail: By Facsimile Transmission: By Hand or Overnight
Courier:
Bank of America Illinois (312) 923-0271 Bank of America Illinois
Corporate Trust Depositary 231 South LaSalle Street
P.O. Box 805857 To Confirm: 19th Floor Window
Chicago, IL 60680-4120 (800) 962-9324 (Clark Street Side)
Chicago, IL 60697
Attn: Corporate Trust
Operations Window
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION
TO A NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID
DELIVERY. TENDERING SHAREHOLDERS MAY CONTINUE TO USE THE ORIGINAL GRAY NOTICE
OF GUARANTEED DELIVERY THAT WAS PROVIDED WITH THE OFFER TO PURCHASE.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES.
IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
"ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE
MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER
OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to TK Acquisition Corporation, a Delaware
corporation ("Purchaser") and an indirect wholly owned subsidiary of Danaher
Corporation, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), as amended
and supplemented by the Supplement to the Offer to Purchase, dated August 22,
1995 (the "Supplement"), and in the related Letters of Transmittal (which
together constitute the "Offer"), receipt of each of which is hereby
acknowledged, the number of Shares indicated below pursuant to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase.
Number of Shares: Shares Name(s) of Record Holder(s):
-----------
Certificate No(s). (if available): -----------------------------------
- ------------------------------------ -----------------------------------
Address(es):
- ------------------------------------ -----------------------
- ------------------------------------ -----------------------------------
Daytime Area Code and Telephone
Number(s):
-----------------------------------
-----------------------------------
If Share(s) will be tendered by
book-entry transfer, check one box.
Signature(s):
-----------------------
[_] -----------------------------------
---------------------------------
-----------------------------------
[_]
---------------------------------
[_]
---------------------------------
Account No.
-----------------------
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program, hereby (1) represents that the
tender of Shares effected hereby complies with Rule 14e-4 under the Securities
Exchange Act of 1934, as amended, and (2) guarantees to deliver to the
Depositary, at one of its addresses set forth above, the certificates
representing all tendered Shares, in proper form for transfer, or a Book-Entry
Confirmation (as defined in the Offer to Purchase), together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees, or, in the case of book-entry transfer of
Shares, an Agent's Message (as defined in the Offer to Purchase), and any other
documents required by the Letter of Transmittal within five New York Stock
Exchange, Inc. trading days after the date of execution to this Notice of
Guaranteed Delivery.
Name of Firm:
------------------------ -----------------------------------
Address: (Authorized Signature)
--------------------------- Title:
-----------------------------
- ----------------------------------- Name:
Area Code and Telephone Number: ------------------------------
- ----------------------------------- -----------------------------------
Date: (Please type or print)
------------------------------
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES SHOULD BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
<PAGE>
EXHIBIT 11(a)(14)
SUPPLEMENT TO
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
of
JOSLYN CORPORATION
at
an increased cash price of
$34 Net Per Share
by
TK ACQUISITION CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DANAHER CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY SEPTEMBER 1, 1995, UNLESS THE
OFFER IS FURTHER EXTENDED.
August 22, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by TK Acquisition Corporation, a Delaware corporation
(the "Purchaser") and an indirect wholly owned subsidiary of Danaher
Corporation, a Delaware corporation ("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 $1.25 per share (the "Shares"), of Joslyn
Corporation, an Illinois corporation (the "Company"), and the associated Common
Stock Purchase Rights (the "Rights"; unless the context otherwise requires,
such Rights are deemed to be included in all references to the "Shares") issued
pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as
of September 2, 1994, between the Company and The First National Bank of
Chicago, an Illinois banking corporation, as Rights Agent, at an increased
purchase price of $34 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 July 24, 1995 (the "Offer to Purchase"), as amended and
supplemented by the Supplement to the Offer to Purchase, dated August 22, 1995
(the "Supplement"), and in the Revised GREEN Letter of Transmittal (which,
together with the Offer to Purchase, the Supplement and the Original BLUE
Letter of Transmittal, constitutes the "Offer"). Copies of the Supplement and
the Revised GREEN Letter of Transmittal are enclosed herewith.
<PAGE>
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 that
number of Shares which, when aggregated with the 613,550 Shares currently
beneficially owned by Parent, represents at least two-thirds of the total
number of outstanding Shares determined on a fully diluted basis on the date of
purchase. The Offer is also subject to other terms and conditions. See the
Introduction to and Sections 1 and 9 of the Supplement.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Supplement to the Offer to Purchase, dated August 22, 1995.
2. The Revised GREEN Letter of Transmittal to tender Shares for your use
and for the information of your clients. Facsimile copies of either
Letter of Transmittal may be used to tender Shares.
3. The Revised BLUE Notice of Guaranteed Delivery for Shares to be used to
accept the Offer if certificates representing Shares ("Share
Certificates") and all other required documents cannot be delivered to
Bank of America Illinois (the "Depositary") by the Expiration Date, or
if the procedures for book-entry transfer cannot be completed by the
Expiration Date.
4. A revised 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 Bank of America Illinois, the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS HAVE
BEEN EXTENDED AND WILL NOW EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON
SEPTEMBER 1, 1995, UNLESS THE OFFER IS FURTHER EXTENDED.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal and any required signature guarantees, or an
Agent's Message (as defined in the Offer to Purchase) in connection with a
book-entry delivery of Shares, and other required documents should be sent to
the Depositary, and (ii) either Share Certificates representing the tendered
Shares should be delivered to the Depositary, or such Shares should be tendered
by book-entry transfer into the Depositary's account maintained at one of the
Book-Entry Transfer Facilities (as described in the Offer to Purchase), all in
accordance with the instructions set forth in the Letters of Transmittal, the
Offer to Purchase and the Supplement.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or other required documents on or prior to the
Expiration Date or to comply with the book-entry transfer procedures on a
timely basis, a tender may be effected by following the guaranteed delivery
procedures specified in Section 3 of the Offer to Purchase.
The Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than the Dealer Manager, the Depositary and D.F. King &
Co., Inc. (the "Information Agent") (as described in the Offer to Purchase))
for soliciting tenders of Shares pursuant to the Offer. The Purchaser will,
however, upon request, reimburse you for customary clerical and mailing
expenses incurred by you in forwarding any of the enclosed materials to your
clients. The Purchaser will pay or cause to be paid any stock transfer taxes
payable on the transfer of Shares to it, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
2
<PAGE>
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 Supplement. Additional copies of the enclosed
materials may be obtained from the Information Agent.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, PARENT, THE DEALER MANAGER, THE
COMPANY, THE DEPOSITARY OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF
THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY
DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE>
EXHIBIT 11(a)(15)
SUPPLEMENT TO
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
JOSLYN CORPORATION
AT
AN INCREASED CASH PRICE OF
$34 NET PER SHARE BY
TK ACQUISITION CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DANAHER CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, SEPTEMBER 1, 1995, UNLESS THE
OFFER IS FURTHER EXTENDED.
August 22, 1995
To Our Clients:
Enclosed for your consideration are the Supplement, dated August 22, 1995
(the "Supplement"), to the Offer to Purchase, dated July 24, 1995 (the "Offer
to Purchase"), and the Revised GREEN Letter of Transmittal (which, together
with the Offer to Purchase, the Supplement and the Original BLUE Letter of
Transmittal, constitute the "Offer"), relating to an offer by TK Acquisition
Corporation, a Delaware corporation ("Purchaser") and an indirect wholly owned
subsidiary of Danaher Corporation, a Delaware corporation ("Danaher"), to
purchase all of the outstanding shares of Common Stock, $1.25 par value per
share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the
"Company"), and the associated Common Stock Purchase Rights (the "Rights";
unless the context otherwise requires, the Rights are deemed to be included in
all references to the "Shares") issued pursuant to the Rights Agreement, dated
as of February 10, 1988, as amended as of September 2, 1994 (the "Rights
Agreement"), between the Company and The First National Bank of Chicago, an
Illinois banking corporation, as Rights Agent, at an increased purchase price
of $34 per Share, net to the seller in cash without interest thereon, upon the
terms and subject to the conditions set forth in the Offer. We are the holder
of record of Shares held by us for your account. A tender of such Shares can be
made only by us as the holder of record and pursuant to your instructions. The
Letter of Transmittal is furnished to you for your information only and cannot
be used by you to tender Shares held by us for your account.
We request instructions as to whether you wish to have us tender on your
behalf any or all of such Shares held by us for your account, pursuant to the
terms and subject to the conditions set forth in the Offer to Purchase and the
Supplement.
<PAGE>
Your attention is directed to the following:
1. The tender price is $34 per Share, net to the seller in cash without
interest thereon.
2. The Offer is made for all of the outstanding Shares.
3. The Offer and withdrawal rights have been extended and will now expire
at 12:00 Midnight, New York City time, on Friday, September 1, 1995,
unless the Offer is further extended.
4. The Offer is conditioned upon, among other things: there being validly
tendered and not properly withdrawn prior to the expiration of the Offer
that number of Shares which, when aggregated with the 613,550 Shares
currently beneficially owned by Danaher, represents at least two-thirds
of the total number of outstanding Shares determined on a fully diluted
basis on the date of purchase. The Offer is also subject to other terms
and conditions. See the Introduction to and Sections 1 and 9 of the
Supplement.
5. Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares pursuant to
the Offer.
The Offer is being made solely by the Offer to Purchase, the Supplement and
the related Letters of Transmittal and is being made to all holders of Shares.
The Offer is not being made to (nor will tenders be accepted from or on behalf
of) holders of Shares residing in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the securities,
blue sky or other laws of such jurisdiction. However, the Purchaser may, in its
discretion, take such action as it may deem necessary to make the Offer in any
jurisdiction and extend the Offer to holders of Shares in such jurisdiction.
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.
INSTRUCTIONS WITH RESPECT TO THE SUPPLEMENT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK
PURCHASE RIGHTS)
OF
JOSLYN CORPORATION
The undersigned acknowledge(s) receipt of your letter enclosing the
Supplement, dated August 22, 1995 (the "Supplement"), to the Offer to Purchase,
dated July 24, 1995 (the "Offer to Purchase"), and the related GREEN Letter of
Transmittal (which, together with the Offer to Purchase, the Supplement and the
original BLUE Letter of Transmittal, constitute the "Offer") pursuant to an
offer by TK Acquisition Corporation, a Delaware corporation and an indirect
wholly owned subsidiary of Danaher Corporation, a Delaware corporation, to
purchase all outstanding shares of Common Stock, $1.25 par value per share (the
"Shares"), of Joslyn Corporation, an Illinois corporation, and the associated
common stock purchase rights which, unless the context otherwise requires, are
deemed to be included in all references to the Shares.
2
<PAGE>
This will instruct you to tender the number of Shares indicated below (or, if
no number is indicated below, all Shares) which are held by you for the account
of the undersigned, upon the terms and subject to the conditions set forth in
the Offer.
Number of Shares to be Tendered* SIGN HERE
Shares -----------------------------------
- -------------------------- Signature(s)
Dated , 1995
--------------------
-----------------------------------
Please print name(s)
-----------------------------------
Address
-----------------------------------
Area Code and Telephone Number
-----------------------------------
Tax Identification or Social
Security Number
* Unless otherwise indicated, it will be assumed that all of your Shares held
by us for your account are to be tendered.
3
<PAGE>
EXHIBIT 11(a)(16)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.-- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employer identification numbers have nine digits separated
by only one hyphen: i.e. 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<CAPTION>
- -------------------------------------------------- -----------------------------------------------
GIVE THE GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF-- NUMBER OF--
- -------------------------------------------------- -----------------------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate, The legal entity
or pension trust (Do not furnish
2. Two or more individuals The actual owner the identifying
(joint account) of the account number of the
or, if combined personal
funds, any one representative
of the or trustee
individuals/1/ unless the legal
entity itself is
3. Husband and wife (joint The actual owner not designated
account) of the account in the account
or, if joint title.)/5/
funds, either
person/1/ 10. Corporate account The corporation
4. Custodian account of a The minor/2/ 11. Religious, charitable, The organization
minor (Uniform Gift to or educational
Minors Act) organization account
5. Adult and minor (joint The adult or, if 12. Partnership account The partnership
account) the minor is the held in the name of the
only business
contributor, the
minor/1/ 13. Association, club, or The organization
6. Account in the name of The ward, minor, other tax-exempt
guardian or committee or incompetent organization
for a designated ward, person/3/
minor, or incompetent 14. A broker or registered The broker or
person nominee nominee
7. a. The usual revocable The grantor- 15. Account with the The public
savings trust account trustee/1/ Department of entity
(grantor is also Agriculture in the name
trustee) of a public entity
b. So-called trust account The actual (such as a State or
that is not a legal or owner/1/ local government,
valid trust under State school district, or
law prison) that receives
8. Sole proprietorship The owner/4/ agricultural program
account payments
- -------------------------------------------------- -----------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
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.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual re-
tirement 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 non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of
1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not pro-
vided 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 IDEN-
TIFICATION 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 the 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. Payers must generally withhold
31% 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
