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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. 3)
AND
SCHEDULE 13-D UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
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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 CLASS OF
(TITLE OF CLASS OF SECURITIES) 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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Danaher Corporation and TK Acquisition Corporation hereby amend and
supplement their Tender Offer Statement on Schedule 14D-1 (as amended, the
"Schedule 14D-1") filed on July 24, 1995, 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, as set forth in this Amendment No. 3. Capitalized terms
used herein without definition have the meanings assigned to them in the
Schedule 14D-1.
Item 10. Additional Information
Item 10 is hereby amended and supplemented by adding thereto the following:
(a) On July 28, 1995, Parent and the Company entered into a
Confidentiality Agreement, a copy of which is attached hereto as
Exhibit (c)(1) and is incorporated herein by reference.
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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
Date: August 1, 1995
2
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EXHIBIT INDEX
<TABLE>
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EXHIBIT NO. DESCRIPTION PAGE NO.
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<C> <S> <C>
11(c)(1) Confidentiality Agreement, dated July 28, 1995.
</TABLE>
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EXHIBIT 11(c)(1)
Joslyn Corporation
30 South Wacker Drive
Chicago, Illinois 60606
Phone: 312/454-2860
July 28, 1995
Danaher Corporation
1250, 24th Street, N.W.
Suite 800
Washington, D.C. 20037
Attention: Mr. George M. Sherman
Gentlemen:
You have requested information regarding Joslyn Corporation (the
"Company") for the purposes of evaluating a possible negotiated acquisition by
you of the Company. In your July 7, 1995 letter you stated "we would like to
conduct a brief, highly-focused due diligence investigation in order to explore
whether a higher [than $32 per share] price could be justified." It is
understood and agreed that this agreement creates no obligation to enter into
any Transaction or any agreement relating to a Transaction. To induce the
Company to furnish information to you, you hereby agree as follows:
1. As used herein:
"Act" means the Securities Exchange Act of 1934, as amended.
"Affiliate" means any Person that (i) directly or indirectly
controls you, (ii) directly or indirectly is controlled by you or (iii)
is under direct or indirect common control with you;
"Information" means information regarding the Company or any of
its subsidiaries or their respective assets or businesses which is
furnished to you, directly or indirectly, by the Company or its
representatives;
"Person" shall have the meaning contained Section 3(a)(9) of
the Act; and
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Danaher Corporation
July 28, 1995
Page 2
"Restricted Period" means the six-month period commencing on the
date hereof.
"Third Party Acquisition Proposal" shall mean a proposal or
offer relating to any merger, acquisition, consolidation or similar
transaction involving, or any purchase of all or substantially all of
the assets or more than 50% of the common stock of, the Company.
2. Except as provided in paragraphs 7 and 8, all Information will be
kept confidential by you, except that you may disclose or make available
Information (i) to your directors, officers and employees and to representatives
of your advisors and lenders and their advisors for the exclusive purpose of
assisting you in the evaluation of a possible Transaction, all of whom shall be
specifically informed by you or your representatives of the confidential
character of such Information and that by receiving such information they are
agreeing to be bound by the terms of this agreement relating to the confidential
treatment of such Information, (ii) in a tender offer statement on Schedule 14D-
1, or in any amendment thereto, relating to a tender offer to purchase common
stock of the Company (and any stock purchase rights) (a "Tender Offer"),
including in the related offer to purchase, and in proxy materials relating to
matters incidental to the Tender Offer or a subsequent merger, if and to the
extent that you, upon advice of your counsel, are required to make such
disclosure pursuant to the Act or the rules thereunder, or (iii) as otherwise
required, upon advice of your counsel, by applicable United States law. You will
not use, or permit any of your representatives to use, any of the Information
for any purpose other than the evaluation of a possible Transaction, and, except
as may be required by law, you will not make any Information available to any
Person for any other purpose whatsoever.
3. You hereby acknowledge that you are aware (and that prior to the
disclosure of any Information to any Person pursuant to paragraph 2 such Person
will be advised) that the United States securities laws prohibit any Person who
has material non-public information about a company from purchasing or selling
securities of such company or from communicating such information to any other
Person under circumstances in which it is reasonably foreseeable that such
Person is likely to purchase or sell such securities.
4. Except as provided in paragraph 5 hereof, unless specifically
requested in writing in advance by the Company's Board of Directors, you will
not at any time during the Restricted Period (and you will not at any time
during the Restricted Period assist or encourage others to):
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Danaher Corporation
July 28, 1995
Page 3
(a) acquire or agree, offer, seek or propose to acquire (or directly or
indirectly request permission to do so), directly or indirectly, alone
or in concert with any other Person, by purchase or otherwise, any
ownership, including, but not limited to, beneficial ownership as
defined in Rule 13d-3 under the Act, of any of the businesses,
securities of the Company or any subsidiary thereof, or any rights or
options to acquire such ownership (including from any third party), or
any material portion of the assets of the Company and its subsidiaries
taken as a whole;
(b) solicit proxies (as such terms are defined in Rule 14a-1 under the
Act), whether or not such solicitation is exempt under Rule 14a-2 under
the Act, with respect to any matter from holders of any shares of common
stock of the Company ("Stock") or any securities convertible into or
exchangeable for or exercisable (whether currently or upon the
occurrence of any contingency) for the purchase of Stock (the Stock and
such other securities being hereinafter collectively called the "Voting
Securities");
(c) initiate, or induce or attempt to induce any other Person, entity
or group (as defined in Section 13(d)(3) of the Act) to initiate, any
stockholder proposal or tender offer for any securities of the Company
or any subsidiary thereof, any change of control of the Company or any
subsidiary thereof or the convening of a stockholders' meeting of the
Company or any subsidiary thereof;
(d) otherwise seek or propose (or request permission to propose) to
influence or control the management or policies of the Company or any
subsidiary thereof;
(e) enter into any discussions, negotiations, arrangements or
understandings with any other Person with respect to any matter
described in the foregoing subparagraphs (a) through (d);
(f) request the Company (or its directors, officers, employees or
agents), directly or indirectly, to amend or waive any provision of this
paragraph 4;
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Danaher Corporation
July 28, 1995
Page 4
(g) take any action inconsistent with any of the foregoing subparagraphs
(a) through (f); or
(h) take any action with respect to any of the matters described in
this paragraph 4 that requires public disclosure.
5. (a) Notwithstanding the restrictions of paragraph 4, you (i) may
engage in discussions and negotiations with the Company in respect of a
Transaction and (ii) may pursue your current $32 per share cash tender offer and
take any and all actions (including without any limitation any communications to
shareholders, proxy solicitations, calling of stockholder meetings, and
litigation, and any actions related to the financing of an Offer or follow-on
merger) in support of any such offer (or any other offer); provided, however,
that it is agreed that during the pendency of your review of Information and
any related discussions and negotiations in respect of a Transaction, (i) all
proceedings in the litigation captioned "Danaher Corporation, et al. v. Joslyn
Corporation, et al.," (Case No. 95 C 4245) pending in U.S. District Court for
the Northern District of Illinois shall be stayed and no new litigation shall be
commenced by either party and (ii) all efforts by you to seek a special meeting
of the Company's shareholders and to solicit proxies or written consents shall
be stayed. For purposes of the proviso in the preceding sentence, the
termination of your review of Information and of any related discussions and
negotiations in respect of a Transaction shall be deemed to be effective 24
hours after either the Company or you shall have given written notice (which may
be by telecopy) to such effect to the other.
(b) The restrictions of paragraph 4 shall terminate in the event the
Company's Board of Directors shall approve or recommend, or resolve to approve
or recommend, any Third Party Acquisition Proposal, or if there is a Third Party
Acquisition Proposal that is a Tender Offer and the Company's Board of
Directors, within 10 days following commencement of the Tender Offer, shall not
have recommended to shareholders that they reject the Tender Offer.
6. Each of the Company and you may disclose, to the extent required by
applicable law, the fact that you are engaged in discussions with the Company
regarding a Transaction, the fact that the Information has been made available
to you and any other aspect of this agreement.
7. In the event that you are requested in any proceeding to disclose
any Information received by you, you will give us prompt notice of such request
so that we may seek an appropriate protective order. If in the absence of a
protective order you are nonetheless compelled to disclose any such Information
or matter, you may disclose such Information or
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Danaher Corporation
July 28, 1995
Page 5
matter without liability hereunder, provided that you give us written notice of
the Information or matter to be disclosed as far in advance of its disclosure as
is practicable and use your best efforts to obtain assurances that confidential
treatment will be accorded to such Information or matter.
8. The restrictions with respect to Information set forth in paragraph 2
shall not apply to any Information furnished to you by the Company or its
representatives which (i) is on the date hereof or hereafter becomes generally
available to the public other than as a result of a disclosure, directly or
indirectly, by you or your representatives or (ii) was available to you on a
nonconfidential basis prior to its disclosure to you by the Company or its
representatives or becomes available to you on a nonconfidential basis, in each
case from a source other than the Company or its representatives, which source
was not itself known to you to be bound by a confidentiality agreement with the
Company or its representatives and had not received such information, directly
or indirectly, from a Person known to you to be so bound.
9. Except as may result from a definitive agreement between the parties
hereto with respect to a Transaction, the Company does not make any
representation or warranty as to the accuracy or completeness of the Information
provided to you, and neither the Company nor any of its representatives shall
have any liability resulting from the use of the Information by you or any of
your representatives.
10. Upon our request at any time, you will promptly redeliver to us all
copies of documents containing Information and will promptly destroy all
memoranda, notes and other writings prepared by you or by any Person referred to
in paragraph 2 based on such Information.
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Danaher Corporation
July 28, 1995
Page 6
11. During the two-year period following the date hereof, you will not
(and will not assist or encourage others to) solicit the services, as employee,
consultant or otherwise, of any employee of the Company; provided, that nothing
in this agreement shall be deemed to prohibit general solicitations of
employment of persons in your ordinary course of business not directed
specifically toward employees of the Company.
12. In the event that, during the term of this agreement, the Company
shall enter into any similar confidentiality agreement or standstill agreement
with a third party, or shall modify the terms of any existing such agreement,
and such agreement as entered into or modified shall contain provisions which
are less restrictive than the provisions of this agreement, then this agreement
shall be amended automatically, without any further action by the parties
hereto, to reflect such less restrictive terms.
13. You shall cause each of your Affiliates to comply with the terms of
paragraphs 2, 3, 4, 5, 6, 7, 8, 10 and 11 (construing such paragraphs for such
purposes to refer also to such Affiliates in each instance where there is a
reference to you).
14. You acknowledge that irreparable damage would occur to the Company
in the event any of the provisions of this agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the Company shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction in the United
States of America or any state thereof, in addition to any other remedy to which
the Company may be entitled at law or in equity.
15. If any term of provision or this agreement or any application hereof
shall be invalid or unenforceable, the remainder of this agreement and any other
application of such term or provision shall not be affected thereby.
16. This agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but such
counterparts shall constitute one and the same instrument.
17. This agreement contains the entire understanding of the parties
hereto with respect to the matters covered hereby and may be amended only by an
agreement in writing executed by the Company and you.
18. This agreement shall be binding upon, inure to the benefit of and
be enforceable by our respective successors and assigns.
19. This agreement shall be governed by and construed in accordance with
the internal laws (as opposed to conflict of law provisions) of the State of
Illinois.
20. This agreement shall terminate on July 31, 1997.
* * * * * *
If the foregoing correctly sets forth our agreement as to the matters
set forth herein, please confirm our agreement by
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Danaher Corporation
July 28, 1995
Page 7
executing and returning a copy of this agreement to the undersigned.
Very truly yours,
JOSLYN CORPORATION
By: /s/ L.G. Wolski
______________________________
Name: L.G. Wolski
Title: C.E.O.
The foregoing terms are agreed to:
DANAHER CORPORATION
By: /s/ C.S. Brannan
______________________________
Name: C. Scott Brannan
Title: V.P.
