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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(Pursuant to Section 13(e)(1) of the Securities Exchange Act of 1934)
NACCO INDUSTRIES, INC.
(Exact Name of Issuer as Specified in Charter)
NACCO INDUSTRIES, INC.
(Name of Person(s) Filing Statement)
CLASS A COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)
629579 10 3
(CUSIP Number of Class of Securities)
------------------
CHARLES A. BITTENBENDER, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
NACCO INDUSTRIES, INC.
5875 LANDERBROOK DRIVE
MAYFIELD HEIGHTS, OHIO 44124-4017
(216) 449-9600
(Name, Address and Telephone Number of Person Authorized to Receive Notice
and Communications on Behalf of the Person(s) Filing Statement)
COPY TO:
DENNIS W. LABARRE, ESQ.
JONES, DAY, REAVIS & POGUE
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 326-3939
November 18, 1996
(Date Tender Offer First Published, Sent or Given to Security Holders)
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TRANSACTION VALUATION AMOUNT OF FILING FEE
- --------------------------------------------------------------------------------
[S] [C]
$40,000,000* $8,000
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* Calculated solely for purposes of determining the filing fee in accordance
with Section 13(e)(3) of the Securities Exchange Act of 1934 and Rule O-11
thereunder. This amount assumes the purchase of 800,000 shares of Class A
Common Stock at $50.00, net in cash per share.
[ ] Check box if any part of the fee is offset as provided by Rule O-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, on the form
or schedule and the date of its filing.
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Page 1 of 6 Pages
Exhibit Index on Page
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This Issuer Tender Offer Statement on Schedule 13E-4 (this "Schedule
13E-4") relates to an issuer tender offer being conducted by NACCO Industries,
Inc., a Delaware corporation (the "Company"). The Offer is for the purchase by
the Company of up to 800,000 shares of its Class A Common Stock, par value $1.00
per share (the "Shares"). The purchase price for each Share will be not greater
than $50.00 nor less than $43.50 per Share, net to the seller in cash, specified
by the tendering shareholders, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated November 18, 1996 (the "Offer to
Purchase"), and the related Letter of Transmittal (the "Letter of Transmittal,"
which together with the Offer to Purchase constitute the "Offer"), copies of
which are attached hereto as Exhibits (a)(1) and (a)(2), respectively.
ITEM 1. SECURITY AND ISSUER.
(a) The name of the issuer is NACCO Industries, Inc., and the address of
its principal executive office is 5875 Landerbrook Drive, Mayfield Heights, Ohio
44124-4017.
(b) The class of securities to which this Schedule 13E-4 relates is the
Shares. The information set forth on the front cover page of, and in
"Introduction," "Number of Shares; Proration," "Acceptance for Payment of Shares
and Payment of Purchase Price," "Interests of Certain Persons; Transactions and
Arrangements Concerning the Shares" and "Extension of Offer; Termination;
Amendments" in the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in "Introduction" and "Price Range of Shares;
Dividends" in the Offer to Purchase is incorporated herein by reference.
(d) Not applicable.
ITEM 2. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth in "Source and Amount of Funds" in the
Offer to Purchase is incorporated herein by reference.
ITEM 3. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER OR
AFFILIATE.
(a)-(j) The information set forth in "Introduction," "Background and
Purpose of the Offer," "Certain Information About Us -- Plans and Proposals,"
"Certain Effects of the Offer," and "Interests of Certain Persons; Transactions
and Arrangements Concerning the Shares" in the Offer to Purchase is incorporated
herein by reference.
ITEM 4. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in "Interests of Certain Persons; Transactions
and Arrangements Concerning the Shares" and "Schedule A -- Certain Transactions
Involving the Shares" in the Offer to Purchase is incorporated herein by
reference.
ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE ISSUER'S SECURITIES.
The information set forth in "Interests of Certain Persons; Transactions
Concerning the Shares" and "Schedule A -- Certain Transactions Involving the
Shares" in the Offer to Purchase is incorporated herein by reference.
ITEM 6. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "Source and Amount of Funds" and "Fees and
Expenses" in the Offer to Purchase is incorporated herein by reference.
ITEM 7. FINANCIAL INFORMATION.
(a)-(b) The financial information set forth in "Certain Information About
Us -- Summary Historical and Pro Forma Financial Information" in the Offer to
Purchase is incorporated herein by reference. The financial information set
forth on pages F-1 through F-33 of the Company's Annual Report on Form 10-K for
Page 2 of 6 Pages
<PAGE> 3
the fiscal year ended December 31, 1995, a copy of which is filed as Exhibit
(g)(1) hereto, is incorporated herein by reference. The financial information
set forth on pages 3 through 9 of the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1996, a copy of which is filed as Exhibit
(g)(2), is incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION.
(a) Not applicable.
(b) The information set forth in "Certain Legal Matters; Regulatory and
Other Approvals" in the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in "Certain Effects of the Offer" in the
Offer to Purchase is incorporated herein by reference.
(d) Not applicable.
(e) All of the information set forth in the Offer to Purchase and the
related Letter of Transmittal, copies of which are filed as Exhibits (a)(1) and
(a)(2), respectively, hereto, is incorporated herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
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(a) (1) Form of Offer to Purchase, dated November 18, 1996.
(2) Form of Letter of Transmittal.
(3) Form of Notice of Guaranteed Delivery.
(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and Other
Nominees.
(5) Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust
Companies, and Other Nominees.
(6) Form of Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(7) Form of Letter to the Company's Shareholders.
(8) Form of News Release issued by the Company on November 15, 1996.
(9) Form of Summary Advertisement published on November 18, 1996.
(b) (1) Credit Agreement, dated as of September 27, 1991, among The North American Coal
Corporation, the banks listed on the signatory pages and Morgan Guaranty Trust
Company of New York, as Agent (incorporated by reference to Exhibit 10(xcii) to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1991).
(2) Amendment No. 1 to the Credit Agreement, dated as of July 28, 1993, among The North
American Coal Corporation, the banks listed on the signatory pages and Morgan
Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit
10(cxxxxiii) to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993).
(3) Amendment No. 2 to the Credit Agreement, dated as of September 27, 1995, among The
North American Coal Corporation, the banks listed on the signatory pages and Morgan
Guaranty Trust Company of New York, as Agent (incorporated by reference to Exhibit
10(xxxix) to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995).
(4) Credit Agreement, dated as of February 28, 1995, among NACCO Materials Handling
Group, Inc., Morgan Guaranty Trust Company of New York, as Agent, and the other
banks listed thereto (incorporated by reference to Exhibit 10(lxxxviii) of the
Hyster-Yale Materials Handling, Inc. Annual Report on Form 10-K for the fiscal
year ended December 31, 1994).
(5) Amended and Restated Credit Agreement, dated as of June 4, 1996, among NACCO
Materials Handling Group, Inc., the Banks party thereto, the Co-Arrangers and
Co-Agents listed on the signature page thereto and Morgan Guaranty Trust Company of
New York, as Agent (incorporated by reference to Exhibit 10(lxxv) to the Company's
Quarterly Report on Form 10-Q for the period ended June 30, 1996).
(c) Not applicable.
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Page 3 of 6 Pages
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(d) Opinion of Jones, Day, Reavis & Pogue regarding certain U.S. federal income tax
consequences of the Offer.
(e) Not applicable.
(f) Not applicable.
(g) (1) Audited Financial Statements of the Company as of December 31, 1995 and 1994 and
for the fiscal years ended December 31, 1995, 1994 and 1993 (incorporated by
reference to pages F-1 through F-33 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995).
(2) Unaudited Financial Statements of the Company as of and for the period ending
September 30, 1996 (incorporated by reference to pages 3 through 9 to the Company's
Quarterly Report on Form 10-Q for the period ended September 30, 1996).
(3) Consent of Arthur Andersen LLP, dated November 15, 1996.
</TABLE>
Page 4 of 5 Pages
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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 Schedule 13E-4 is true, complete and
correct.
NACCO INDUSTRIES, INC.
November 18, 1996 By: /s/ Alfred M. Rankin, Jr.
--------------------------------
Alfred M. Rankin, Jr.
Chairman, President and
Chief Executive Officer
Page 5 of 6 Pages
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS
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(a) (1) Form of Offer to Purchase, dated November 18, 1996........................
(2) Form of Letter of Transmittal.............................................
(3) Form of Notice of Guaranteed Delivery.....................................
(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and
Other Nominees............................................................
(5) Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust Companies, and Other Nominees.......................................
(6) Form of Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.......................................................
(7) Form of Letter to the Company's Shareholders..............................
(8) Form of News Release issued by the Company on November 15, 1996...........
(9) Form of Summary Advertisement published on November 18, 1996..............
(b) (1) Credit Agreement, dated as of September 27, 1991, among The North American
Coal Corporation, the banks listed on the signatory pages and Morgan
Guaranty Trust Company of New York, as Agent (incorporated by reference to
Exhibit 10(xcii) to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1991)......................................
(2) Amendment No. 1 to the Credit Agreement, dated as of July 28, 1993, among
The North American Coal Corporation, the banks listed on the signatory
pages and Morgan Guaranty Trust Company of New York, as Agent
(incorporated by reference to Exhibit 10(cxxxxiii) to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1993)..........
(3) Amendment No. 2 to the Credit Agreement, dated as of September 27, 1995,
among The North American Coal Corporation, the banks listed on the
signatory pages and Morgan Guaranty Trust Company of New York, as Agent
(incorporated by reference to Exhibit 10(xxxix) to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995)..........
(4) Credit Agreement, dated as of February 28, 1995, among NACCO Materials
Handling Group, Inc., Morgan Guaranty Trust Company of New York, as Agent,
and the other banks listed thereto (incorporated by reference to Exhibit
10(lxxxviii) of the Hyster-Yale Materials Handling, Inc. Annual Report on
Form 10-K for the fiscal year ended December 31, 1994)....................
(5) Amended and Restated Credit Agreement, dated as of June 4, 1996, among
NACCO Materials Handling Group, Inc., the Banks party thereto, the
Co-Arrangers and Co-Agents listed on the signature page thereto and Morgan
Guaranty Trust Company of New York, as Agent (incorporated by reference to
Exhibit 10(lxxv) to the Company's Quarterly Report on Form 10-Q for the
period ended June 30, 1996)...............................................
(d) Opinion of Jones, Day, Reavis & Pogue regarding certain U.S. federal income tax
consequences of the Offer......................................................
(g) (1) Audited Financial Statements of the Company as of December 31, 1995 and
1994 and for the fiscal years ended December 31, 1995, 1994 and 1993
(incorporated by reference to pages F-1 through F-33 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995)...
(2) Unaudited Financial Statements of the Company as of and for the period
ending September 30, 1996 (incorporated by reference to pages 3 through 9
to the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1996).......................................................
(3) Consent of Arthur Andersen LLP, dated November 15, 1996...................
</TABLE>
Page 6 of 6 Pages
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Exhibit (a)(1)
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NACCO INDUSTRIES, INC.
OFFER TO PURCHASE FOR CASH
UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK
------------------------
THE OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
------------------------
NACCO Industries, Inc., a Delaware corporation ("NACCO," "we," "us," or
"our" below), invites its shareholders ("you" or "your" below) to tender shares
of our Class A Common Stock, par value $1.00 per share (the "Class A Shares" or
the "Shares"), at prices you specify within the range of $43.50 to $50.00 per
Share, on the terms and subject to the conditions set out in this Offer to
Purchase and in the related Letter of Transmittal (which together constitute the
"Offer"). We will determine a single price per Share within the range of $43.50
to $50.00 that we will pay for Shares properly tendered pursuant to the Offer
(the "Purchase Price"), taking into account the number of Shares so tendered and
the prices specified by tendering shareholders. We will select the lowest
Purchase Price which will allow us to purchase 800,000 Shares, or such smaller
number as are properly tendered at prices within the range of $43.50 to $50.00,
pursuant to the Offer. We will then purchase all Shares properly tendered and
not withdrawn at prices at or below the Purchase Price, on the terms and subject
to the conditions of the Offer, including the proration and "odd-lot" terms set
forth herein.
------------------------
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF
THE OFFER."
------------------------
IMPORTANT
If you want to tender any or all of your Shares, you should either: (1)
complete and sign the Letter of Transmittal or a copy of it according to the
instructions in the Letter of Transmittal, mail or deliver it and any other
required documents to First Chicago Trust Company of New York (the
"Depositary"), and either mail or deliver the stock certificates for your Shares
to the Depositary or follow the procedure for book-entry delivery set out in
"How to Tender Shares -- Book-Entry Delivery"; or (2) ask your broker, dealer,
commercial bank, trust company, or other nominee to effect the transaction for
you.
If your Shares are registered in the name of a broker, dealer, commercial
bank, trust company, or other nominee, you must contact that nominee if you want
to tender those Shares. If you want to tender Shares but your certificate for
those Shares is not immediately available, you should tender those Shares by
following the procedures for guaranteed delivery set out in "How to Tender
Shares -- Guaranteed Delivery."
NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES. YOU MUST MAKE YOUR OWN
DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER
AND AT WHAT PRICE OR PRICES. WE HAVE BEEN INFORMED BY SUCH PERSONS
THAT NONE OF OUR DIRECTORS, EXECUTIVE OFFICERS, OR FAMILY
SHAREHOLDERS INTENDS TO TENDER ANY SHARES PURSUANT
TO THE OFFER.
------------------------
TO TENDER SHARES PROPERLY, YOU MUST COMPLETE THE SECTION OF THE LETTER OF
TRANSMITTAL RELATING TO THE PRICE AT WHICH YOU ARE TENDERING SHARES.
------------------------
We are making the Offer (i) because our Board of Directors believes that the
purchase of Shares pursuant to the Offer constitutes a prudent use of our
financial resources, given our business profile, assets, and prospects and (ii)
to afford those shareholders who desire liquidity an opportunity to sell all or
a portion of their Shares without the usual transaction costs associated with
open market sales. If you are considering the sale of all or a portion of your
Shares, the Offer also gives you the opportunity to determine the minimum price
at which you are willing to sell your Shares. The Offer may also give you the
opportunity to sell Shares at prices greater than the market price of the Shares
prevailing before we announced the Offer.
The Shares are listed and traded on the New York Stock Exchange under the
symbol NC. On November 15, 1996, the last trading day before we announced the
Offer, the closing sales price per Share as reported on the NYSE Composite Tape
was $43.25. We urge you to obtain current market quotations for the Shares.
We also have outstanding Class B Common Stock, par value $1.00 per share
(the "Class B Shares"). Because of transfer restrictions, no trading market has
developed, or is expected to develop, for the Class B Shares. The Class B Shares
are not subject to the Offer; however, the Class B Shares are convertible into
Class A Shares on a one-for-one basis. If you hold Class B Shares and would like
to tender Class A Shares into the Offer, you must first notify Key Shareholder
Services, the transfer agent for the Shares (the "Transfer Agent"), in writing,
of your desire to convert some or all of your Class B Shares into Class A
Shares, and enclose share certificates representing the Class B Shares you would
like to so convert and executed stock powers with respect to such certificates.
In considering whether you should convert Class B Shares into Class A Shares in
order to tender Class A Shares into the Offer, please note that: (i) each Class
B Share is entitled to ten votes per share while each Class A Share is entitled
to only one vote per Share; (ii) once you convert your Class B Shares into Class
A Shares and tender such Shares into the Offer you cannot convert your Class A
Shares back into Class B Shares in the event that such Class A Shares are not
purchased in the Offer; (iii) you may not have any such Class A Shares purchased
in the Offer because the price specified by you may exceed the Purchase Price;
and (iv) some portion of the Class A Shares that you tender into the Offer may
not be purchased pursuant to the Offer due to proration. See "How to Tender
Shares -- Class B Shares."
Please contact the Information Agent or the Dealer Manager at the addresses
and telephone numbers set forth on the back cover of this Offer to Purchase if
you have questions, need help, or would like more copies of this Offer to
Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery.
The Dealer Manager for the Offer is:
J.P. MORGAN & CO.
NOVEMBER 18, 1996
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[THIS PAGE INTENTIONALLY LEFT BLANK]
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WE HAVE NOT AUTHORIZED ANY PERSON, ON OUR BEHALF:
(A) TO RECOMMEND WHETHER OR NOT YOU SHOULD TENDER SHARES PURSUANT TO THE OFFER;
OR
(B) TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH
THE OFFER OTHER THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE
LETTER OF TRANSMITTAL.
DO NOT RELY ON ANY SUCH RECOMMENDATION, INFORMATION, OR REPRESENTATIONS, IF
GIVEN OR MADE, AS HAVING BEEN AUTHORIZED BY US.
TABLE OF CONTENTS
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INTRODUCTION............................................................................ 1
1. Number of Shares; Proration...................................................... 2
(a) Number of Shares............................................................. 2
(b) Proration.................................................................... 3
2. Tenders by Holders of Fewer Than 100 Shares...................................... 4
3. How to Tender Shares............................................................. 4
(a) Proper Tender of Shares...................................................... 4
(b) Signature Guarantees and Method of Delivery.................................. 5
(c) Backup Federal Income Tax Withholding........................................ 5
(d) Book-Entry Delivery.......................................................... 5
(e) Guaranteed Delivery.......................................................... 6
(f) Class B Shares............................................................... 6
(g) Tender Constitutes an Agreement.............................................. 7
(h) Determination of Validity; Rejection of Shares; Waiver of Defects; No
Obligation to Give Notice of Defects............................................. 7
4. Withdrawal Rights................................................................ 7
5. Acceptance for Payment of Shares and Payment of Purchase Price................... 8
6. Certain Conditions of the Offer.................................................. 9
7. Price Range of Shares; Dividends................................................. 11
8. Background and Purpose of the Offer.............................................. 11
9. Source and Amount of Funds....................................................... 12
10. Certain Information About Us..................................................... 13
(a) NACCO Materials Handling Group, Inc.......................................... 13
(b) Hamilton Beach S Proctor-Silex, Inc.......................................... 13
(c) The North American Coal Corporation.......................................... 13
(d) The Kitchen Collection, Inc.................................................. 13
(e) Recent Developments.......................................................... 14
(f) Summary Historical and Pro Forma Financial Information....................... 14
(g) Additional Information....................................................... 17
(h) Plans and Proposals.......................................................... 17
11. Interests of Certain Persons; Transactions and Arrangements Concerning the
Shares........................................................................... 17
12. Certain Effects of the Offer..................................................... 18
13. Certain Legal Matters; Regulatory and Other Approvals............................ 19
</TABLE>
i
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SECTION PAGE
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14. Certain Federal Income Tax Consequences.......................................... 19
(a) In General................................................................... 19
(b) Dividend vs. Exchange Treatment.............................................. 19
(c) Timing of Income Recognition................................................. 21
(d) Corporate Dividends-Received Deduction....................................... 22
(e) Foreign Shareholders......................................................... 22
(f) Effect on Non-Selling Shareholders........................................... 23
15. Extension of Offer; Termination; Amendments...................................... 23
16. Fees and Expenses................................................................ 24
17. Miscellaneous.................................................................... 25
Schedule A -- Certain Transactions Involving the Shares................................. 26
</TABLE>
ii
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TO THE HOLDERS OF SHARES OF CLASS A COMMON STOCK OF NACCO INDUSTRIES, INC.:
INTRODUCTION
NACCO Industries, Inc., a Delaware corporation ("NACCO," "we," "us," or
"our" below), invites its shareholders ("you" or "your" below), to tender shares
of our Class A Common Stock, par value $1.00 per share (the "Class A Shares" or
the "Shares"), at prices you specify within the range of $43.50 to $50.00 per
Share, on the terms and conditions set out in this Offer to Purchase and in the
related Letter of Transmittal (which together constitute the "Offer").
We will determine a single price per Share within the range of $43.50 to
$50.00 that we will pay for Shares properly tendered pursuant to the Offer (the
"Purchase Price"), taking into account the number of Shares so tendered and the
prices specified by tendering shareholders. We will select the lowest Purchase
Price which will allow us to purchase 800,000 Shares, or such smaller number as
are properly tendered at prices within the range of $43.50 to $50.00, pursuant
to the Offer. We will then purchase all Shares properly tendered and not
withdrawn at prices at or below the Purchase Price, on the terms and subject to
the conditions of the Offer, including the proration and "odd-lot" terms set
forth herein.
WHILE THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED, IT IS SUBJECT TO CERTAIN OTHER CONDITIONS. SEE "CERTAIN CONDITIONS OF
THE OFFER."
If before 12:00 midnight, New York City time, on December 16, 1996 (or such
later time and date to which we may extend the Offer in accordance with the
terms of the Offer as described in "Extension of Offer; Termination;
Amendments"), more than 800,000 Shares are properly tendered at or below the
Purchase Price and not withdrawn, we will purchase Shares first from Odd Lot
Holders (as defined in "Tenders by Holders of Fewer Than 100 Shares") who
properly tender all of their Shares, at or below the Purchase Price, and then on
a pro rata basis from all other shareholders who properly tender Shares, at or
below the Purchase Price. See "Number of Shares; Proration" and "Tenders by
Holders of Fewer Than 100 Shares."
We will promptly determine the Purchase Price for the Shares, and, as soon
as practicable thereafter, pay tendering shareholders for the Shares accepted
pursuant to the Offer. We will promptly return, at our expense, all Shares not
purchased pursuant to the Offer, including Shares tendered and not withdrawn at
prices greater than the Purchase Price and Shares not purchased because of
proration. If you tender Shares, you will not have to pay brokerage commissions,
solicitation fees, or, subject to Instruction 8 of the Letter of Transmittal,
stock transfer taxes on our purchase of such Shares pursuant to the Offer. See
"Number of Shares; Proration" and "Acceptance for Payment of Shares and Payment
of Purchase Price." In addition, we will pay all fees and expenses of J.P.
Morgan Securities Inc. (the "Dealer Manager"), First Chicago Trust Company of
New York (the "Depositary"), and MacKenzie Partners, Inc. (the "Information
Agent") in connection with the Offer. See "Fees and Expenses."
NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO
WHETHER OR NOT TO TENDER SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO
TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES.
WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE
OFFICERS, OR FAMILY SHAREHOLDERS (AS DEFINED IN "CERTAIN EFFECTS OF THE OFFER")
INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER.
On November 15, 1996, we announced that our Board of Directors had approved
a 1.5 million share repurchase program for the Shares, which is comprised of the
Offer for the purchase of up to 800,000 Shares and an open market purchase
program that we expect to implement following the expiration of the Offer over
the next two fiscal years for the purchase of up to 700,000 Shares. However, to
the extent that we do not purchase 800,000 Shares pursuant to the Offer, we may
purchase additional Shares in the open market purchase program equal to the
shortfall between 800,000 Shares and the number of Shares purchased in the
Offer. We expressly reserve the right, in our sole discretion, to purchase up to
an additional 2% of the outstanding Shares pursuant to the Offer without the
need to extend the Offer. See "Background and Purpose of the Offer." Neither the
Offer nor the open market purchase program applies to the Class B Shares (as
defined below); however, we may purchase Class B Shares in the future. See
"Certain Effects of the Offer."
1
<PAGE> 6
We are making the Offer (i) because our Board of Directors believes that
the purchase of Shares pursuant to the Offer constitutes a prudent use of our
financial resources, given our business profile, assets, and prospects and (ii)
to afford those shareholders who desire liquidity an opportunity to sell all or
a portion of their Shares without the usual transaction costs associated with
open market sales. If you are considering the sale of all or a portion of your
Shares, the Offer also gives you the opportunity to determine the minimum price
at which you are willing to sell your Shares. The Offer may also give you the
opportunity to sell Shares at prices greater than the market price of the Shares
prevailing before we announced the Offer. See "Background and Purpose of the
Offer."
The 800,000 Shares that we are offering to purchase pursuant to the Offer
represent approximately 11.0% of the 7,287,858 Shares of Class A Common Stock
outstanding as of November 13, 1996. The Shares are listed and traded on the New
York Stock Exchange ("NYSE") under the symbol NC. On November 15, 1996, the last
trading day before we announced the Offer, the closing sales price per Share as
reported on the NYSE Composite Tape was $43.25. We urge you to obtain current
market quotations for the Shares. See "Price Range of Shares; Dividends."
We also have outstanding Class B Common Stock, par value $1.00 per share
(the "Class B Shares"). Because of transfer restrictions, no trading market has
developed, or is expected to develop, for the Class B Shares. The Class B Shares
are not subject to the Offer; however, the Class B Shares are convertible into
Class A Shares on a one-for-one basis. If you hold Class B Shares and would like
to tender Class A Shares into the Offer, you must first notify Key Shareholder
Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900
Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in
writing, of your desire to convert some or all of your Class B Shares into Class
A Shares, and enclose share certificates representing the Class B Shares you
would like to so convert and executed stock powers with respect to such
certificates. PLEASE NOTE THAT YOU SHOULD ALLOW 10 TO 14 BUSINESS DAYS FOR SUCH
CONVERSION AND THAT SHARE CERTIFICATES REPRESENTING TENDERED SHARES MUST BE
RECEIVED BY THE DEPOSITARY BY THE EXPIRATION DATE, OR UP TO THREE NYSE TRADING
DAYS THEREAFTER IF YOU FOLLOW THE PROCEDURES FOR GUARANTEED DELIVERY SET FORTH
BELOW.
In considering whether you should convert Class B Shares into Class A
Shares in order to tender Class A Shares into the Offer, please note that: (i)
each Class B Share is entitled to ten votes per share while each Class A Share
is entitled to only one vote per Share; (ii) once you convert your Class B
Shares into Class A Shares and tender such Shares into the Offer you cannot
convert your Class A Shares back into Class B Shares in the event that such
Class A Shares are not purchased in the Offer; (iii) you may not have any such
Class A Shares purchased in the Offer because the price specified by you may
exceed the Purchase Price; and (iv) some portion of the Class A Shares that you
tender into the Offer may not be purchased pursuant to the Offer due to
proration. See "How to Tender Shares -- Class B Shares."
1. NUMBER OF SHARES; PRORATION.
(a) Number of Shares. We will purchase 800,000 Shares, or such smaller
number of Shares as are properly tendered (and not withdrawn in accordance with
the procedures described in "Withdrawal Rights") on or before the Expiration
Date at a price within the range of $43.50 to $50.00 per Share. "Expiration
Date" means 12:00 midnight, New York City time, on December 16, 1996, unless we
extend the Offer; then, "Expiration Date" shall mean the time and date to which
we have extended the Offer. See "Extension of Offer; Termination; Amendments"
for a description of our right to extend, delay, terminate, or amend the Offer.
Except as described in "Tenders by Holders of Fewer Than 100 Shares," if the
Offer is over-subscribed, Shares tendered at or below the Purchase Price before
the Expiration Date will be eligible for and subject to proration.
We will determine the Purchase Price taking into account the number of
Shares tendered and the prices specified by tendering shareholders. We will
choose the lowest Purchase Price that will allow us to purchase 800,000 Shares,
or such smaller number as are properly tendered at prices within the range of
$43.50 to $50.00 per Share, pursuant to the Offer. We expressly reserve the
right, in our sole discretion, to purchase up to an additional 2% of the
outstanding Shares pursuant to the Offer without the need to extend the Offer.
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If:
(1) we announce an increase in the number of Shares we seek to
purchase pursuant to the Offer and that increase exceeds 2% of the
outstanding Shares, or if we announce a decrease in the number of Shares we
seek to purchase pursuant to the Offer; and
(2) we make that announcement (as specified in "Extension of Offer;
Termination, Amendments") when the Offer is scheduled to expire less than
ten business days from and including the date that we announce the increase
or decrease,
then we will extend the Offer for at least ten business days from and including
the date of the announcement. See "Extension of Offer; Termination; Amendments."
A "business day" means any day other than a Saturday, Sunday, or federal
holiday, and consists of the period from 12:01 a.m. through 12:00 midnight, New
York City time.
If you want to tender Shares, you must specify the price (within the range
of $43.50 to $50.00 per Share) at which you are willing to tender your Shares.
See Instruction 5 of the Letter of Transmittal. You may submit separate Letters
of Transmittal with different prices for Shares.
As soon as practicable following the Expiration Date, and subject to the
terms of the Offer, we will:
(1) determine the Purchase Price (within the range of $43.50 to $50.00
per Share) that we will pay for Shares properly tendered pursuant to the
Offer, taking into account the number of Shares tendered and the prices
specified by tendering shareholders;
(2) purchase all Shares tendered pursuant to the Offer at or below the
Purchase Price, subject to proration as described in "-- Proration" below;
and
(3) return, at our expense, all Shares we do not purchase pursuant to
the Offer, including Shares tendered at prices greater than the Purchase
Price and Shares not purchased because of proration.
For example, if you tender Shares at $47.00 per Share and the Purchase
Price is set at $48.00 per Share, we will purchase, at $48.00 per Share, all of
the Shares that you tendered (assuming no proration). But if you tender Shares
at $49.00 per Share and the Purchase Price is set at $48.00 per Share, we will
not purchase any of those Shares. NOTE THAT THIS EXAMPLE IS FOR ILLUSTRATION
PURPOSES ONLY. IT DOES NOT REPRESENT ANY EXPECTATION AS TO THE POSSIBLE ACTUAL
PURCHASE PRICE AND DOES NOT TAKE INTO ACCOUNT PRORATION WHICH MAY BE REQUIRED.
(b) Proration. If, before the Expiration Date, shareholders properly
tender and do not withdraw a greater number of Shares at or below the Purchase
Price than we are offering to purchase pursuant to the Offer, we will accept
Shares in the following order of priority:
(1) all Shares properly tendered at or below the Purchase Price and
not withdrawn before the Expiration Date by any shareholder who holds less
than 100 Shares as of the close of business on November 13, 1996 ("Odd Lot
Holder") and tenders all of his Shares and does not withdraw any such
Shares, as described in "Tenders by Holders of Fewer Than 100 Shares"
below; and then
(2) all other Shares properly tendered at or below the Purchase Price
and not withdrawn before the Expiration Date on a pro rata basis (with
appropriate adjustments to avoid purchases of fractional Shares).
If we prorate our purchase of tendered Shares, we will determine the final
proration factor as soon as practicable after the Expiration Date. Although we
do not expect to be able to announce the final proration results until
approximately five NYSE trading days after the Expiration Date, we will announce
preliminary results of proration by news release as soon as possible after the
Expiration Date. You may obtain preliminary proration information from the
Information Agent, and you may also be able to obtain such information from your
broker.
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2. TENDERS BY HOLDERS OF FEWER THAN 100 SHARES.
If, as of the close of business on November 13, 1996, you beneficially held
fewer than 100 Shares, you are an Odd Lot Holder. If the Offer is
over-subscribed and we need to prorate the Shares we will accept for purchase,
we will still accept for purchase, without proration, all Shares from Odd Lot
Holders properly tendered, at or below the Purchase Price, and not withdrawn on
or before the Expiration Date, subject to the terms of the Offer. If you are an
Odd Lot Holder and want to avoid proration as to those Shares, however, you
must:
(a) complete the box captioned "Odd Lots" on the Letter of Transmittal
and, if applicable, on the Notice of Guaranteed Delivery; and
(b) properly tender at or below the Purchase Price all Shares that you
beneficially own and not withdraw any such Shares.
This preference is not available to you if you do not tender all Shares
that you beneficially own, or if you beneficially hold 100 or more Shares, even
if you have separate stock certificates for fewer than 100 Shares.
As of November 13, 1996, there were approximately 705 holders of record of
Shares, of which approximately 255 record holders, holding in the aggregate
approximately 8,544 Shares, held fewer than 100 Shares. Because of the large
number of Shares held in the names of brokers and nominees or in so-called
"street name," we are unable to estimate the number of beneficial owners of
fewer than 100 Shares or the aggregate number of Shares they own.
3. HOW TO TENDER SHARES.
(a) Proper Tender of Shares. To tender your Shares properly pursuant to
the Offer:
(1) the Depositary must receive certificates for your Shares (or
confirmation of receipt of your Shares pursuant to the procedures for
book-entry delivery set out below), together with a properly completed and
duly executed Letter of Transmittal (or a copy thereof) with any required
signature guarantees and any other documents required by the Letter of
Transmittal, on or before the Expiration Date at one of the Depositary's
addresses set out on the back cover of this Offer to Purchase; or
(2) you must comply with the guaranteed delivery procedure set out
below.
If your certificates for Shares have been lost or destroyed, contact the
Information Agent for instructions regarding obtaining replacement certificates.
Except to the extent you beneficially own Shares held in "street name" by the
Book-Entry Transfer Facility (as defined in paragraph (b) below), in which case
you should follow the procedures for book-entry delivery set forth in paragraph
(d) below, you cannot tender Shares into the Offer unless you have certificates
for such Shares.
In all cases, we will pay for Shares tendered and accepted for payment
pursuant to the Offer only after timely receipt by the Depositary of
certificates for such Shares (or a timely confirmation of a book-entry transfer
of such Shares into the Depositary's account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or copy
thereof), and any other documents required by the Letter of Transmittal.
Instruction 5 of the Letter of Transmittal requires you to indicate in the
section captioned "Price (In Dollars) Per Share At Which Shares Are Being
Tendered" on the Letter of Transmittal the price (in multiples of $0.125) at
which you are tendering your Shares. If you want to tender Shares at more than
one price, you must complete separate Letters of Transmittal for each price at
which you are tendering Shares. You cannot tender the same Shares at more than
one price unless you previously withdrew them in accordance with the terms of
the Offer. IF YOU WANT TO MAXIMIZE THE CHANCE THAT YOUR SHARES WILL BE PURCHASED
AT THE PURCHASE PRICE, YOU SHOULD CHECK THE SPECIAL BOX ON THE LETTER OF
TRANSMITTAL MARKED, "SHARES TENDERED AT PRICE DETERMINED BY DUTCH AUCTION." NOTE
THAT THIS COULD RESULT IN YOUR SHARES BEING PURCHASED AT THE MINIMUM PRICE OF
$43.50.
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YOU WILL MAKE A PROPER TENDER OF SHARES IF, AND ONLY IF, ON THE LETTER OF
TRANSMITTAL, YOU CHECK EITHER THE BOX UNDER "SHARES TENDERED AT PRICE DETERMINED
BY DUTCH AUCTION" OR ONE OF THE BOXES UNDER "SHARES TENDERED AT PRICE DETERMINED
BY SHAREHOLDER."
Do not tender Shares you do not own. See "-- Tender Constitutes an
Agreement" below.
(b) Signature Guarantees and Method of Delivery. No signature guarantee is
required on a Letter of Transmittal if:
(1) the Letter of Transmittal is signed by the registered holder of
the Shares tendered with it and payment is to be made directly to that
registered holder ("registered holder" includes any participant in The
Depository Trust Company book-entry system (the "Book-Entry Transfer
Facility") whose name appears on a security position listing as the owner
of the Shares); or
(2) Shares are tendered for the account of an "Eligible Institution"
(defined to mean a member firm of a registered national securities
exchange; a member of the National Association of Securities Dealers, Inc.;
or a commercial bank or trust company having an office, branch, or agency
in the United States).
In all other cases, all signatures on the Letter of Transmittal must be
guaranteed by an Eligible Institution. See Instruction 1 of the Letter of
Transmittal. If a certificate representing Shares is registered in the name of a
person other than the signer of a Letter of Transmittal, or if payment is to be
made, or Shares not purchased are to be returned, to a person other than the
registered owner, then the certificate must be endorsed or accompanied by an
appropriate stock power, in either case signed exactly as the name of the
registered owner appears on the certificate with the signature on the
certificate or stock power guaranteed by an Eligible Institution. See
Instruction 7 of the Letter of Transmittal.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, IS
AT YOUR ELECTION AND RISK. DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
(c) Backup Federal Income Tax Withholding. To prevent backup federal
income tax withholding equal to 31% of the gross payments made pursuant to the
Offer, you must either:
(1) give the Depositary your correct taxpayer identification number
(or certify that you are awaiting a taxpayer identification number) and
complete and submit the Substitute Form W-9 included in the Letter of
Transmittal; or
(2) otherwise establish an exemption from withholding.
U.S. corporations and foreign individuals are exempt from such withholding.
Foreign individuals must submit a statement, signed under penalty of perjury,
attesting to that individual's exempt status in order to avoid backup
withholding. Please also see "Certain Federal Income Tax Consequences" for more
information regarding the tax consequences of the Offer, particularly as it
relates to the withholding rules that apply to foreign individuals.
(d) Book-Entry Delivery. The Depositary will establish an account for the
Shares at the Book-Entry Transfer Facility for purposes of the Offer within two
business days after the date of this Offer. Any financial institution
participating in the Book-Entry Transfer Facility's system may make book-entry
delivery of the Shares by causing that facility to transfer those Shares into
the Depositary's account in accordance with the facility's procedure for such
transfer. Even though delivery of Shares may be effected through book-entry
transfer into the Depositary's account at the Book-Entry Transfer Facility, you
must, before the Expiration Date, either:
(1) unless an Agent's Message (as defined below) is received by the
Depositary before the Expiration Date, transmit to the Depositary a
properly completed and duly executed Letter of
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<PAGE> 10
Transmittal (or copy thereof), with any required signature guarantees and
any other required documents, to one of the Depositary's addresses set out
on the back cover page of this Offer to Purchase; or
(2) follow the guaranteed delivery procedure set out below.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
book-entry confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares which are the subject of such book-entry
confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that we may enforce such agreement
against such participant.
DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS TO
THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
(e) Guaranteed Delivery. If you want to tender Shares pursuant to the
Offer and your certificates are not immediately available, or if you can not
complete the procedures for book-entry delivery in time, or if time will not
permit all required documents to reach the Depositary before the Expiration
Date, you may still tender those Shares if:
(1) your tender is made by or through an Eligible Institution;
(2) the Depositary receives (by hand, mail, or facsimile
transmission), at or before the Expiration Date, a properly completed and
duly executed Notice of Guaranteed Delivery substantially in the form we
have provided with this Offer to Purchase (indicating the price at which
the Shares are being tendered or checking the "Shares Tendered at Price
Determined by Dutch Auction" box); and
(3) the Depositary receives the certificates for all tendered Shares,
in proper form for transfer (or confirmation of book-entry transfer of
those Shares into the Depositary's account at the Book-Entry Transfer
Facility as described above), together with a properly completed and duly
executed Letter of Transmittal (or copy thereof), and any other required
documents, within three NYSE trading days after the date the Depositary
receives your Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, IS
AT YOUR ELECTION AND RISK. DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
If your certificates for Shares have been lost or destroyed, contact the
Information Agent for instructions regarding obtaining replacement certificates.
Except to the extent you beneficially own Shares held in "street name" by the
Book-Entry Transfer Facility, in which case you should follow the procedures for
book-entry delivery set forth in paragraph (d) above, you cannot tender Shares
into the Offer unless you have certificates for such Shares.
In all cases, we will pay for Shares tendered and accepted for payment
pursuant to the Offer only after timely receipt by the Depositary of
certificates for such Shares (or a timely confirmation of a book-entry transfer
of such Shares into the Depositary's account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or copy
thereof), and any other documents required by the Letter of Transmittal.
(f) Class B Shares. We also have outstanding the Class B Shares. Because
of transfer restrictions, no trading market has developed, or is expected to
develop, for the Class B Shares. The Class B Shares are not subject to the
Offer; however, the Class B Shares are convertible into Class A Shares on a
one-for-one basis. If you hold Class B Shares and would like to tender Class A
Shares into the Offer, you must first notify the Transfer Agent, at 4900
Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in
writing, of your desire to convert some or all of your Class B Shares into Class
A Shares, and enclose share certificates representing the Class B Shares you
would like to so convert and executed stock powers with respect to such
certificates. Once you receive share certificates representing the Class A
Shares, you can then
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tender Class A Shares into the Offer. PLEASE NOTE THAT YOU SHOULD ALLOW 10 TO 14
BUSINESS DAYS FOR SUCH CONVERSION AND THAT SHARE CERTIFICATES REPRESENTING
TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY BY THE EXPIRATION DATE, OR UP
TO THREE NYSE TRADING DAYS THEREAFTER IF YOU FOLLOW THE PROCEDURES FOR
GUARANTEED DELIVERY SET FORTH ABOVE.
In considering whether you should convert Class B Shares into Class A
Shares in order to tender Class A Shares into the Offer, please note that: (i)
each Class B Share is entitled to ten votes per share while each Class A Share
is entitled to only one vote per Share; (ii) once you convert your Class B
Shares into Class A Shares and tender such Shares into the Offer you cannot
convert your Class A Shares back into Class B Shares in the event that such
Class A Shares are not purchased in the Offer; (iii) you may not have any such
Class A Shares purchased in the Offer because the price specified by you may
exceed the Purchase Price; and (iv) some portion of the Class A Shares that you
tender into the Offer may not be purchased pursuant to the Offer due to
proration.
(g) Tender Constitutes an Agreement. The tender of Shares pursuant to any
of the procedures described above will constitute a binding agreement between
you and us on the terms and the conditions of the Offer, including your
representation and warranty that:
(1) you "own" the Shares being tendered within the meaning of Rule
13e-4 under the Securities Exchange Act of 1934 (the "Exchange Act"); and
(2) your tender of Shares complies with Rule 13e-4 under the Exchange
Act.
Rule 14e-4 under the Exchange Act prohibits both "short" tendering and
"hedged" tendering, whether done by you or by another person on your behalf. It
is a violation of Rule 14e-4 under the Exchange Act for you to tender Shares
unless you (i) have a net long position equal to or greater than the number of
(x) Shares tendered or (y) other securities immediately convertible into, or
exercisable or exchangeable for, the number of Shares tendered and will acquire
such Shares for tender by conversion, exercise or exchange of such other
securities and (ii) will cause such Shares to be delivered in accordance with
the terms of the Offer. Your tender of Shares pursuant to any one of the
procedures described above will constitute your representation and warranty that
(i) you have a net long position in the Shares being tendered within the meaning
of Rule 14e-4 under the Exchange Act and (ii) your tender of such Shares
complies with Rule 14e-4.
(h) Determination of Validity; Rejection of Shares; Waiver of Defects; No
Obligation to Give Notice of Defects. We shall determine all questions as to
the number of Shares to be accepted, the price to be paid for them pursuant to
the terms of the Offer, and the validity, form, eligibility (including time of
receipt), and acceptance for payment of any tender of Shares, and our
determination shall be final and binding on all parties. We may reject any or
all tenders we determine not to be in proper form or the acceptance of or
payment for which may, in the opinion of our counsel, be unlawful. We may also
waive any of the conditions of the Offer and any defect or irregularity in the
tender of any particular Shares. No tender of Shares will be deemed to be
properly made until all defects and irregularities have been cured or waived.
Unless waived, all defects and irregularities must be cured within such time as
we shall determine. NONE OF US, THE DEALER MANAGER, THE DEPOSITARY, THE
INFORMATION AGENT, OR ANY OTHER PERSON HAS ANY DUTY TO GIVE NOTICE OF ANY
DEFECTS OR IRREGULARITIES IN TENDERS, AND NEITHER WE NOR THEY SHALL INCUR ANY
LIABILITY FOR FAILURE TO GIVE ANY SUCH NOTICE.
4. WITHDRAWAL RIGHTS.
You may withdraw any Shares tendered pursuant to the Offer at any time
before the Expiration Date. Unless we have already accepted the Shares for
payment, you may also withdraw them after 12:00 midnight, New York City time, on
January 16, 1997 (40 business days following the commencement of the Offer).
Unless you withdraw your Shares as described below, however, your tender of
Shares pursuant to the Offer is irrevocable, subject to Rule 13e-4(f)(5) under
the Exchange Act, which provides that we must either pay the Purchase Price or
return your tendered Shares promptly following the termination or withdrawal of
the Offer.
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<PAGE> 12
For your withdrawal to be effective, the Depositary must timely receive (at
one of its addresses set forth on the back cover of this Offer to Purchase) a
written or facsimile transmission notice of withdrawal. Your withdrawal notice
must specify the name of the person who deposited the Shares to be withdrawn,
the number of Shares to be withdrawn, and the name of the registered holder, if
different from that of the person who tendered the Shares. If your certificates
have been delivered or otherwise identified to the Depositary, then, before the
Depositary can release those certificates, you must submit the serial numbers
shown on the particular certificates evidencing the Shares and the signature on
the notice of withdrawal must be guaranteed by an Eligible Institution (except
in the case of Shares tendered by an Eligible Institution). If you tender your
Shares pursuant to the book-entry delivery procedure set out in "How to Tender
Shares -- Book-Entry Delivery," your notice of withdrawal must specify the name
and the number of the account at the Book-Entry Transfer Facility to be credited
with the withdrawn Shares and otherwise comply with the procedures of that
Facility.
If we extend the Offer, are delayed in our purchase of Shares, or are
unable to purchase Shares pursuant to the Offer for any reason, then, without
prejudice to our rights under the Offer, the Depositary may, subject to
applicable law, retain on our behalf all tendered Shares, and such Shares may
not be withdrawn except to the extent such tendering shareholders are entitled
to withdrawal rights as described in this Section.
We shall determine all questions as to the form and validity (including
time of receipt) of notices of withdrawal, and our determination shall be final
and binding on all parties. NONE OF US, THE DEALER MANAGER, THE DEPOSITARY, THE
INFORMATION AGENT, OR ANY OTHER PERSON HAS ANY DUTY TO GIVE ANY NOTICE OF ANY
DEFECTS OR IRREGULARITIES IN ANY NOTICE OF WITHDRAWAL, AND NEITHER WE NOR THEY
SHALL INCUR ANY LIABILITY FOR FAILURE TO GIVE ANY SUCH NOTICE. Any Shares
properly withdrawn will be deemed not to have been tendered for purposes of the
Offer. You may, however, re-tender withdrawn Shares before the Expiration Date
by again following the procedures described in "How to Tender Shares" above.
5. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE.
As soon as practicable after the Expiration Date, we will determine and
announce the Purchase Price, taking into account the number of Shares tendered
and the prices specified by tendering shareholders. Subject to the proration and
odd-lot provisions of the Offer, we will then accept for payment (and thereby
purchase) Shares tendered (and not withdrawn) at or below the Purchase Price.
For purposes of the Offer, we will be deemed to have accepted for payment (and
therefore purchased) Shares when, as, and if we give oral or written notice to
the Depositary of our acceptance of those Shares for payment pursuant to the
Offer. In all cases, payment for Shares accepted for payment pursuant to the
Offer will be made promptly (subject to possible delay in the event of
proration) but only after timely receipt by the Depositary of certificates for
Shares (or of a confirmation of a book-entry transfer of such Shares into the
Depositary's account at the Book-Entry Transfer Facility), a properly completed
and duly executed Letter of Transmittal (or copy thereof), and any other
required documents. We will pay for Shares purchased pursuant to the Offer by
depositing funds sufficient for the purchase of those Shares with the
Depositary, which will act as your agent for the purpose of receiving payment
from us and transmitting payment by check to the tendering shareholders from
whom we have purchased Shares.
If proration is necessary, we will determine the proration factor and pay
for Shares accepted for payment as soon as practicable after the Expiration
Date. We do not expect to be able to announce the final results of proration
until approximately five NYSE trading days after the Expiration Date. We will
return certificates for all Shares not purchased, including all Shares tendered
at prices greater than the Purchase Price and Shares not purchased because of
proration, as soon as practicable after the Expiration Date and at our expense.
Similarly, Shares which we do not accept which were tendered by book-entry
delivery will be credited to the account maintained within the Book-Entry
Transfer Facility by the participant who delivered the Shares as soon as
practicable after the Expiration Date and at our expense. We will not pay
interest on the Purchase Price under any circumstances.
Generally, we will pay all brokerage commissions, solicitation fees and
stock transfer taxes payable with respect to the transfer to us of Shares
purchased pursuant to the Offer. We will, however, deduct from the
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Purchase Price the amount of any stock transfer taxes, whether imposed on the
registered holder or another person tendering the Shares, payable on account of
the transfer to the registered holder or such other person:
(a) if the Purchase Price is to be made to any person other than the
registered holder;
(b) if (but only under the circumstances permitted by the Offer)
unpurchased Shares are to be re-registered in the name of any person
other than the registered holder; or
(c) if tendered certificates are registered in the name of any person other
than the person signing the Letter of Transmittal;
unless satisfactory evidence of the payment of stock transfer taxes,
or exemption from them, is submitted to the Depositary. See
Instruction 8 of the Letter of Transmittal.
ANY TENDERING SHAREHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY AND
SIGN THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE
SUBJECT TO REQUIRED FEDERAL INCOME TAX BACKUP WITHHOLDING OF 31% OF THE GROSS
PROCEEDS PAID TO SUCH SHAREHOLDER OR OTHER PAYEE PURSUANT TO THE OFFER. SEE "HOW
TO TENDER SHARES -- BACKUP FEDERAL INCOME TAX WITHHOLDING."
Payment for Shares may be delayed in the event of difficulty in determining
the number of Shares validly tendered or withdrawn, or if proration is required.
In addition, if certain events occur, we may not be obligated to purchase Shares
pursuant to the Offer. See "Certain Conditions of the Offer."
As provided in Rules 13e-4(f)(4) and (8)(ii) under the Exchange Act, we
will pay the same amount per Share for each Share accepted pursuant to the
Offer.
6. CERTAIN CONDITIONS OF THE OFFER.
This section sets forth the conditions under which we can amend, delay,
extend, or terminate the Offer.
We can amend or extend the Offer as provided in "Extension of Offer;
Termination; Amendments" below. In addition, we may terminate the Offer and not
accept for payment or pay for any Shares not already accepted for payment, or,
subject to applicable law, postpone acceptance for payment for Shares tendered,
if at any time on or after November 18, 1996 and at or before the time of
purchase of any Shares, any of the following events occurs (or if we determine
that any of them has occurred) and, in our sole judgment in any such case and
regardless of the circumstances giving rise to any such event or condition
(including any action or omission to act of ours), the event makes it
inadvisable to proceed with the Offer or with such purchase or payment:
(a) there shall have been threatened, instituted, or pending any action or
proceeding by any governmental, regulatory, or administrative agency or
authority or tribunal, domestic or foreign, or by any other person,
domestic or foreign, before any court or governmental regulatory, or
administrative authority or agency or tribunal, domestic or foreign,
which:
(1) challenges or seeks to make illegal, or to delay or otherwise
directly or indirectly to restrain, prohibit, or otherwise affect
the making of the Offer, the purchase of Shares pursuant to the
Offer, or otherwise relates in any manner to the Offer; or
(2) in our sole judgment, could materially affect our business,
condition (financial or otherwise), income, operations, or
prospects or that of our subsidiaries, taken as a whole, or
otherwise materially impair in any way the contemplated future
conduct of the business of us and our subsidiaries, or materially
impair the Offer's contemplated benefits to us and our
subsidiaries; or
(b) there shall have been any action threatened, pending, or taken, or any
approval withheld, or any statute, rule, regulation, judgment, order,
or injunction threatened, invoked, proposed, sought, promulgated,
enacted, entered, amended, enforced, or deemed to apply to the Offer
or to us or any of our subsidiaries, by any court or any government
or governmental, regulatory, or administrative agency or authority or
tribunal, domestic or foreign, which, in our sole judgment, would or
might directly or indirectly result in any of the consequences
referred to in clause (1) or (2) of paragraph (a) above; or
9
<PAGE> 14
(c) there shall have occurred:
(1) the declaration of any banking moratorium or suspension of payments
in respect of banks in the United States (whether or not mandatory);
(2) any general suspension of trading in, or limitation on prices for,
securities on any United States national securities exchange or in
any over-the-counter market;
(3) the commencement of a war, armed hostilities, or any other national
or international crisis directly or indirectly involving the United
States;
(4) any limitation (whether or not mandatory) by any governmental,
regulatory, or administrative agency or authority on, or any event
which, in our sole judgment, might affect, the extension of credit
by banks or other lending institutions in the United States;
(5) any change in the general political, market, economic, or financial
conditions in the United States or abroad that could have a material
adverse effect on the business, condition (financial or otherwise),
income, operations, or prospects of us and our subsidiaries, taken
as a whole, or trading in the Shares;
(6) in the case of any of the above conditions existing at the time the
Offer begins, in our sole judgment, a material acceleration or
worsening of it; or
(7) a decline in either the Dow Jones Industrial Average (6,313 at the
close of business on November 14, 1996) or the Standard and Poor's
Index of 500 Industrial Companies (735.88 at the close of business
on November 14, 1996) by an amount in excess of 10% measured from
the close of business on November 14, 1996; or
(d) any change shall occur or be threatened in the business, condition
(financial or otherwise), income, operations, ownership, or prospects
of us and our subsidiaries, taken as a whole, which is or may be
material to us and our subsidiaries taken as a whole; or
(e) a tender or exchange offer (other than the Offer) for any or all of the
Shares or the Class B Shares, or any merger, business combination, or
other similar transaction with or involving us or our subsidiaries,
shall have been publicly proposed, announced, or made by any person; or
(f) any entity, "group" (as that term is used in Section 13(d)(3) of the
Exchange Act), or person (other than entities, groups, or persons who
have filed with the Securities and Exchange Commission (the
"Commission") before November 18, 1996 a Schedule 13G or a Schedule 13D
with respect to the Shares or the Class B Shares) shall have acquired,
or proposed to acquire, beneficial ownership of more than 5% of the
outstanding Shares or Class B Shares; or
(g) any entity, group, or person who has filed with the Commission on or
before such date a Schedule 13G or a Schedule 13D with respect to the
Shares or the Class B Shares shall have acquired, or proposed to
acquire, beneficial ownership of additional Shares of such class
constituting more than 2% of the outstanding Shares of such class or
shall have been granted any option or right to acquire beneficial
ownership of additional Shares of such class constituting more than 2%
of the outstanding Shares of such class; or
(h) any entity, group, or person shall have filed a Notification and Report
Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
reflecting an intent to acquire us or any Shares.
The foregoing conditions are for our sole benefit. We may assert them
regardless of the circumstances giving rise to any such condition (including our
action or inaction), or we may waive them in whole or in part. Our failure at
any time to exercise any of the above rights shall not be deemed a waiver of any
such right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time. Our determination concerning the
events described in this Section shall be final and binding.
10
<PAGE> 15
7. PRICE RANGE OF SHARES; DIVIDENDS.
The Shares are traded on the NYSE under the ticker symbol NC. We also have
outstanding the Class B Shares. Because of transfer restrictions, no trading
market has developed, or is expected to develop, for the Class B Shares. The
Class B Shares are not subject to the Offer; however, the Class B Shares are
convertible into Class A Shares on a one-for-one basis. If you hold Class B
Shares and would like to tender Class A Shares into the Offer, you must first
notify the Transfer Agent in writing of your desire to convert some or all of
your Class B Shares into Class A Shares. See "How to Tender Shares -- Class B
Shares" for a discussion of factors you should consider before deciding to
convert your Class B Shares into Class A Shares.
The high and low closing sales price for the Shares and dividends per Share
for each of the periods indicated are presented in the table below:
<TABLE>
<CAPTION>
1996
--------------------------------
SALES PRICE
--------------------- CASH
HIGH LOW DIVIDEND
------ ------ --------
<S> <C> <C> <C> <C>
First quarter.......................................... $59.88 -- $51.50 18.0c.
Second quarter......................................... $64.00 -- $54.63 18.75c.
Third quarter.......................................... $56.00 -- $47.75 18.75c.
Fourth quarter (through November 15, 1996)............. $48.00 -- $43.25 18.75(1)
<CAPTION>
1995
--------------------------------
SALES PRICE
--------------------- CASH
HIGH LOW DIVIDEND
------ ------ --------
<S> <C> <C> <C> <C>
First quarter.......................................... $56.75 -- $46.88 17.0c.
Second quarter......................................... $64.00 -- $53.63 18.0c.
Third quarter.......................................... $63.50 -- $56.00 18.0c.
Fourth quarter......................................... $60.50 -- $55.25 18.0c.
<CAPTION>
1994
--------------------------------
SALES PRICE
--------------------- CASH
HIGH LOW DIVIDEND
------ ------ --------
<S> <C> <C> <C> <C>
First quarter.......................................... $58.13 -- $48.38 16.5c.
Second quarter......................................... $60.75 -- $45.75 17.0c.
Third quarter.......................................... $63.00 -- $52.88 17.0c.
Fourth quarter......................................... $64.00 -- $46.63 17.0c.
<FN>
- ---------------
(1) On November 13, 1996, our Board of Directors declared a dividend of 18.75c
per share on the Class A Shares and the Class B Shares, payable to
shareholders of record as of December 2, 1996. Because Shares tendered
pursuant to the Offer will not be accepted for payment prior to December 16,
1996, if you were a record holder of Class A Shares as of December 2, 1996
and tender Class A Shares into the Offer, you will be entitled to receive
such dividend on such Class A Shares.
</TABLE>
On November 15, 1996, the last trading day before the announcement of the
Offer, the closing sales price of the Shares as reported on the NYSE Composite
Tape was $43.25. We urge you to obtain current market quotations for the Shares.
8. BACKGROUND AND PURPOSE OF THE OFFER.
On November 15, 1996, we announced that our Board of Directors had approved
a 1.5 million share repurchase program for the Shares, which is comprised of the
Offer for the purchase of up to 800,000 Shares and an open market purchase
program that we expect to implement following the expiration of the Offer over
the next two fiscal years for the purchase of up to 700,000 Shares. However, to
the extent that we do not purchase 800,000 Shares pursuant to the Offer, we may
purchase additional Shares in the open market purchase program equal to the
shortfall between 800,000 Shares and the number of Shares purchased in the
Offer. We expressly reserve the right, in our sole discretion, to purchase up to
an additional 2% of the
11
<PAGE> 16
outstanding Shares pursuant to the Offer without the need to extend the Offer.
Neither the Offer nor the open market purchase program applies to the Class B
Shares; however, we may purchase Class B Shares in the future. See "Certain
Effects of the Offer."
We are making the Offer (i) because our Board of Directors believes that
the purchase of Shares pursuant to the Offer constitutes a prudent use of our
financial resources, given our business profile, assets, and prospects and (ii)
to afford those shareholders who desire liquidity an opportunity to sell all or
a portion of their Shares without the usual transaction costs associated with
open market sales. This opportunity to sell Shares without paying any brokerage
fee may be particularly valuable to smaller shareholders, for whom such fees may
be relatively high. Odd Lot Holders who tender into the Offer will realize
additional transactional savings by avoiding any applicable "odd lot" discount
payable on a sale of Shares. In addition, to the extent the purchase of Shares
pursuant to the Offer results in a reduction in the number of shareholders of
record, our shareholder services costs will be reduced. If you are considering
the sale of all or a portion of your Shares, the Offer gives you the opportunity
to determine the minimum price at which you are willing to sell your Shares. The
Offer may also give you the opportunity to sell Shares at prices greater than
the market price of the Shares prevailing before we announced the Offer.
Shareholders who do not tender Shares or whose Shares are not purchased in
the Offer will have a proportionate increase in their ownership interest in us,
subject to our right to issue additional Shares and other equity securities in
the future. Our purchase of Shares pursuant to the Offer will reduce the number
of Shares that are available to be publicly traded on the NYSE, and is likely to
reduce the number of shareholders. Nonetheless, we anticipate that there will be
enough shareholders and sufficient publicly available Shares following the Offer
to provide a reasonably liquid trading market for them. However, we can make no
assurances that sufficient publicly traded Shares will be available following
the Offer to provide a reasonably liquid trading market. Based on the published
guidelines of the NYSE, we do not believe that our purchase of Shares pursuant
to the Offer will cause the Shares to be delisted from the NYSE.
NEITHER WE NOR OUR BOARD OF DIRECTORS MAKE ANY RECOMMENDATION TO YOU AS TO
WHETHER OR NOT TO TENDER ANY OR ALL OF YOUR SHARES. WE HAVE NOT AUTHORIZED ANY
PERSON TO MAKE ANY SUCH RECOMMENDATION. WE URGE YOU TO EVALUATE CAREFULLY ALL
INFORMATION IN THE OFFER, CONSULT YOUR OWN INVESTMENT AND TAX ADVISORS, AND MAKE
YOUR OWN DECISION WHETHER TO TENDER SHARES, AND, IF SO, HOW MANY SHARES TO
TENDER AND AT WHAT PRICE OR PRICES.
9. SOURCE AND AMOUNT OF FUNDS.
Assuming that we purchase all 800,000 Shares we are offering to purchase
pursuant to the Offer at the maximum Purchase Price of $50.00 per Share, we
expect the maximum aggregate amount to be paid pursuant to the Offer, including
all fees and expenses related to the Offer currently estimated to be $398,000,
to be approximately $40.4 million. We will fund such amount from available cash
on hand and from existing short-term borrowings (as summarized below). The Offer
is not conditioned upon our having obtained financing.
Our wholly-owned subsidiary, NACoal (as defined in "Certain Information
About Us"), has in place a $50.0 million revolving credit facility with Morgan
Guaranty Trust Company of New York, as Agent (the "NAC Credit Facility"). The
following is a brief summary of the NAC Credit Facility, a copy of which has
been filed as an exhibit to the Schedule 13E-4 (as defined in "Certain
Information About Us -- Additional Information"), of which this Offer to
Purchase is a part. Such summary is qualified in its entirety by reference to
the NAC Credit Facility. The NAC Credit Facility expires on September 27, 2001,
but may be extended, on an annual basis, for one additional year upon the mutual
consent of NACoal and the bank group thereunder. Borrowings under the NAC Credit
Facility bear interest at LIBOR plus 0.4375%. As of November 15, 1996, the
applicable interest rate under the NAC Credit Facility was 5.8125%. As of
November 15, 1996, $50.0 million of the NAC Credit Facility was available for
borrowing.
Our indirect subsidiary, NMHG (as defined in "Certain Information About
Us"), has in place a $350.0 million revolving credit facility with Morgan
Guaranty Trust Company of New York, as Agent (the "NMHG Credit Facility"). The
following is a brief summary of the NMHG Credit Facility, a copy of which has
been filed as an exhibit to the Schedule 13E-4, of which this Offer to Purchase
is a part. Such summary is
12
<PAGE> 17
qualified in its entirety by reference to the NMHG Credit Facility. The NMHG
Credit Facility expires on June 4, 2001, but may be extended, on an annual
basis, for one additional year upon the request of NMHG and agreement of the
banks having at least 75% of the aggregate amount of commitments thereunder. The
NMHG Credit Facility currently provides for, at our option, Euro-Dollar Loans
which bear interest at LIBOR plus 0.3% and Money Market Loans which bear
interest at Auction Rates (as each such term is defined in the NMHG Credit
Facility). The NMHG Credit Facility allows up to $25.0 million of dividends to
be paid to NACCO; as of November 15, 1996 there have not been any such dividends
paid to NACCO. As of November 14, 1996, $76.4 million of the NMHG Credit
Facility was available for borrowing.
We expect to repay the debt incurred in connection with the purchase of
Shares pursuant to the Offer from cash generated from future operations. In the
interim, we may refinance a portion of the short-term borrowings incurred in
connection with the Offer with other short-term borrowings or with long-term
debt, although we have no specific plans to do so at this time.
10. CERTAIN INFORMATION ABOUT US.
We were incorporated as a Delaware corporation in 1986 in connection with
the formation of a holding company structure for a predecessor corporation
organized in 1913. Our principal executive offices are located at 5875
Landerbrook Drive, Mayfield Heights, Ohio 44124-4017 and our telephone number is
(216) 449-9600.
We are a holding company which owns four principal operating subsidiaries:
(a) NACCO Materials Handling Group, Inc. ("NMHG"). NMHG, 98
percent-owned by NACCO, designs, engineers and manufactures a full line of
forklift trucks and replacement parts. NMHG is the world market leader and
sells its products under the Hyster(R) and Yale(R) brand names through
separate, independent dealer networks. Forklift trucks represent the
largest segment of the materials handling equipment industry. NMHG
accounted for 57% and 48% of NACCO's assets and liabilities, respectively,
as of December 31, 1995, while its operations accounted for 69% and 57% of
NACCO's revenues and operating profits, respectively, in 1995.
(b) Hamilton Beach S Proctor-Silex, Inc. ("HB S*PS"). HB * PS,
wholly-owned by NACCO, is one of the largest full-line manufacturers and
marketers of small electric motor and heat-driven appliances in North
America. The well-known Hamilton Beach(R) and Proctor-Silex(R) brands are
primarily distributed through mass merchandisers, department stores,
catalog showrooms, warehouse membership clubs and other retail outlets.
HB * PS accounted for 16% and 12% of NACCO's assets and liabilities,
respectively, as of December 31, 1995, while its operations accounted for
17% of NACCO's revenues and operating profits, in 1995.
(c) The North American Coal Corporation ("NACoal"). The original
member of the NACCO group of companies, NACoal, which is wholly-owned by
NACCO, is engaged in the acquisition, mining and marketing of lignite for
use as fuel for power generation by electric utilities. Founded in 1913,
the company has coal reserves that total approximately 2.1 billion tons and
is a leading producer of lignite in the United States, with surface mines
in North Dakota, Texas and Louisiana. The company also provides dragline
mining services for a limerock quarry in South Florida. Substantially all
of the sales by NACoal are made through wholly-owned project mining
subsidiaries pursuant to long-term, cost plus a profit per ton contracts.
The utility customers of these mines have arranged and guaranteed the
financing of the development and operation of these project mining
subsidiaries. There is no recourse to NACCO or NACoal for the financing of
these subsidiary mines. Project mining subsidiaries accounted for 24% and
29% of NACCO's assets and liabilities, respectively, as of December 31,
1995, while their operations accounted for 10% and 25% of NACCO's revenues
and operating profits, respectively, in 1995.
(d) The Kitchen Collection, Inc. ("KCI"). KCI, which is wholly-owned
by NACCO, is a national specialty retailer of brand-name kitchenware,
tableware, small electric appliances and related accessories operating
under the Kitchen Collection(R) and Hearthstone(TM) names. The company
operated 142 stores at
13
<PAGE> 18
November 15, 1996, located primarily in factory outlet malls throughout the
United States. KCI's product mix includes a broad line of merchandise from
highly recognizable brand-name manufacturers, including Hamilton Beach(R)
and Proctor-Silex(R) appliances. KCI accounted for 1% of NACCO's assets and
liabilities as of December 31, 1995, while its operations accounted for 3%
and 2% of NACCO's revenues and operating profits, respectively, in 1995.
(e) Recent Developments. On October 18, 1996, NACCO purchased the
twenty percent minority ownership interest in HB * PS from Glen Dimplex, an
unlimited corporation incorporated in the Republic of Ireland, for $33.6
million. The Shareholders Agreement between NACCO and Glen Dimplex provided
Glen Dimplex with certain rights to dispose of its interest in HB * PS,
including the right, at its sole option, to offer its interest to NACCO at
a purchase price determined pursuant to the Shareholders Agreement. As a
result of this purchase, NACCO now owns 100% of HB * PS which was formed in
October 1990 when Proctor-Silex, Inc., which had been wholly-owned by
NACCO, was combined with Hamilton Beach Inc., which had been wholly-owned
by Glen Dimplex. In connection with this transaction, on October 10, 1996,
HB * PS amended its credit facility to increase the permitted amount of
advances to $160.0 million.
On July 31, 1996, NMHG announced that it had acquired the warehouse
equipment business of ORMIC S.p.a., located near Milan, Italy. ORMIC
manufactures motorized hand trucks, reach trucks, order pickers and turret
trucks. This acquisition, along with the purchase in 1995 of DECA S.r.1.,
another Italian warehouse equipment manufacturer, strengthened NMHG's
presence in the European warehouse and distribution market and further
enhanced its position as the leading worldwide supplier of materials
handling equipment.
(f) Summary Historical and Pro Forma Financial Information. The
following table sets forth certain summary audited and unaudited historical
and pro forma financial information about us. The historical financial
information for the years ended December 31, 1995 and 1994, have been
summarized from our audited consolidated financial statements and notes
thereto included in our 1995 Annual Report on Form 10-K, which are
incorporated by reference herein (see "-- Additional Information"). The
historical financial information for the nine-month periods ended September
30, 1996 and 1995, has been summarized from our unaudited condensed
consolidated financial statements and notes thereto included in our
Quarterly Report on Form 10-Q for the quarter ended September 30, 1996,
which are incorporated by reference herein (see "-- Additional
Information"). You should read the following summary historical financial
information together with such audited and unaudited condensed consolidated
financial statements and their related notes.
The summary historical financial information for the nine-month
periods ended September 30, 1996 and 1995 reflect, in the opinion of our
management, all adjustments (consisting only of normal recurring
adjustments) necessary to present fairly our financial condition and
results of operations for such periods. Due to the seasonality of the
retail business of HB * PS and KCI, the historical financial information
presented as of September 30, 1996 is not indicative of our financial
condition and results of operations at and for the full fiscal year.
The following unaudited pro forma financial information:
(1) illustrates certain pro forma effects of the assumed use of cash
and short-term borrowings to fund the Offer (see "Source and Amount of
Funds" above);
(2) is based on the following assumptions:
(i) that a total of 800,000 Shares were purchased at the maximum
Purchase Price of $50.00 and that the related transaction fees and
expenses were $398,000;
(ii) that interest rates on borrowings to finance the Offer were
6.6% for the year ended December 31, 1995, and 6.0% for the nine months
ended September 30, 1996;
14
<PAGE> 19
(iii) that the purchase occurred as of the first day of the period
presented for the condensed consolidated statements of income, and as of
the date of the condensed consolidated balance sheets; and
(iv) that marginal tax rates were 39.0% for the year ended December
31, 1995 and for the nine months ended September 30, 1996;
(3) should be read in conjunction with the audited and unaudited
financial statements and related notes in our 1995 Annual Report on Form
10-K and in our Quarterly Report on Form 10-Q for the period ended
September 30, 1996 (which have been incorporated by reference herein (see
"-- Additional Information")); and
(4) does not purport to indicate the results which may be achieved in
the future or which would actually have been achieved had the Offer been
consummated during the periods indicated.
15
<PAGE> 20
NACCO INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED HISTORICAL AND PRO FORMA FINANCIAL INFORMATION
<TABLE>
<CAPTION>
PROFORMA
HISTORICAL -----------------------
------------------------------------------------- NINE
NINE MONTHS ENDED MONTHS
YEAR ENDED DECEMBER 31 SEPTEMBER 30 YEAR ENDED ENDED
----------------------- ----------------------- DEC. 31 SEPT. 30
1995 1994 1996 1995 1995 1996
---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS
Net sales.................. $2,190,375 $1,853,479 $1,654,059 $1,550,668 $2,190,375 $1,654,059
Other operating income..... 14,142 11,408 3,360 7,632 14,142 3,360
---------- ---------- ---------- ---------- ---------- ----------
Total Revenues........... $2,204,517 $1,864,887 $1,657,419 $1,558,300 $2,204,517 $1,657,419
Income Before Extraordinary
Items.................... $ 65,506 $ 45,272 $ 34,540 $ 41,195 $ 63,896 $ 33,442
Net Income................. $ 94,440 $ 42,054 $ 34,540 $ 37,813 $ 92,830 $ 33,442
PER SHARE
Income Before Extraordinary
Items.................... $ 7.31 $ 5.06 $ 3.85 $ 4.60 $ 7.83 $ 4.09
Extraordinary Items........ 3.23 (0.36) -- (0.38) 3.54 --
---------- ---------- ---------- ---------- ---------- ----------
Net Income................. $ 10.54 $ 4.70 $ 3.85 $ 4.22 $ 11.37 $ 4.09
========== ========== ========== ========== ========== ==========
Fully Diluted Net Income... $ 10.52 $ 4.70 n/a $ 4.21 $ 11.36 n/a
FINANCIAL POSITION
Working Capital............ $ 198,283 $ 105,198 $ 209,506 $ 262,216 $ 197,885 $ 209,108
Total Assets............... $1,833,837 $1,694,322 $1,813,424 $1,860,737 $1,833,439 $1,813,026
Goodwill, net.............. $ 465,051 $ 471,574 $ 458,042 $ 466,159 $ 465,051 $ 458,042
Total Assets less Goodwill,
net...................... $1,368,786 $1,222,748 $1,355,382 $1,394,578 $1,368,388 $1,354,984
Revolving credit
agreements............... $ 95,736 $ 30,760 $ 96,259 $ 66,106 $ 95,736 $ 96,259
Current maturities of
long-term obligations.... 19,864 63,509 21,123 14,681 19,864 21,123
Notes payable -- not
guaranteed by the parent
company.................. 320,200 286,717 313,964 390,302 360,200 353,964
Obligations of project
mining subsidiaries --
not guaranteed by the
parent company or its
NACoal subsidiary........ 346,472 331,876 341,487 344,706 346,472 341,487
---------- ---------- ---------- ---------- ---------- ----------
Total Debt............... $ 782,272 $ 712,862 $ 772,833 $ 815,795 $ 822,272 $ 812,833
Stockholders' Equity....... $ 370,127 $ 279,391 $ 397,861 $ 320,537 $ 329,729 $ 357,463
OTHER INFORMATION
Average Shares
Outstanding.............. 8,963 8,948 8,981 8,962 8,163 8,181
Ratio of Earnings to Fixed
Charges.................. 2.72 2.25 2.31 2.43 2.61 2.22
Book Value per Share....... $ 41.28 $ 31.21 $ 44.28 $ 35.75 $ 40.38 $ 43.67
</TABLE>
16
<PAGE> 21
(g) Additional Information. Additional information about us is set out in
our Annual Report on Form 10-K for the year ended December 31, 1995; our 1995
Annual Report to Shareholders; our Proxy Statement dated March 29, 1996; and our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30,
1996, and September 30, 1996. The financial statements and notes thereto
included in our 1995 Annual Report on Form 10-K and our Quarterly Report on Form
10-Q for the quarter ended September 30, 1996 are hereby incorporated by
reference herein.
We have also filed an Issuer Tender Offer Statement on Schedule 13E-4
("Schedule 13E-4") with the Commission which includes additional information
about the Offer. We regularly file with the Commission reports on Form 10-K and
Form 10-Q as well as other periodic reports, proxy statements, and other
information, including information about our directors and officers, their
holdings of Shares and Class B Shares, our principal shareholders, their
holdings of Shares, and any material interest of such persons in transactions
with us.
You may inspect and copy such material at prescribed rates at the
Commission's public reference facilities at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at its regional offices located at 7 World Trade
Center, 13th Floor, New York, New York, 10048; and 500 West Madison Avenue,
Suite 1400, Chicago, Illinois 60661. Reports, proxy materials, and other
information about us are also available at the offices of the New York Stock
Exchange, Listed Securities Library, 20 Broad Street, Seventh Floor, New York,
New York 10005. The Schedule 13E-4 may not be available at the Commission's
regional offices, but you may obtain a copy by requesting one from the
Information Agent at the address and telephone number set forth on the back
cover page of this Offer to Purchase.
(h) Plans and Proposals. Except as disclosed in this Offer to Purchase, we
have no agreements or understandings as to either divestitures or acquisitions
that would be material to us and we do not have any plans or proposals which
relate to or would result in:
(1) the acquisition by any person of our securities, or the
disposition of any of our securities;
(2) any extraordinary corporate transaction involving us or any of our
subsidiaries, such as a merger, a reorganization, or the sale or transfer
of a material amount of our assets or the assets of any of our
subsidiaries;
(3) any change in our present Board of Directors or senior management;
(4) any material change in our present indebtedness, capitalization,
or dividend rate or policy;
(5) any other material change in our business or corporate structure;
(6) any change in our Restated Certificate of Incorporation or
Restated By-Laws;
(7) our equity securities being delisted from the NYSE or becoming
eligible for termination of registration under Section 12(g)(4) of the
Exchange Act; or
(8) the suspension of our obligation to file reports pursuant to
Section 15(d) of the Exchange Act.
11. INTERESTS OF CERTAIN PERSONS; TRANSACTIONS AND ARRANGEMENTS CONCERNING THE
SHARES.
Based upon our records and information furnished to us, except for routine
grants of restricted Shares pursuant to our Nonemployee Director Equity
Compensation Plan and as set forth on Schedule A attached hereto, neither we
nor, to our knowledge, any of our Family Shareholders, subsidiaries, executive
officers, directors, or any affiliate of any such officer, director, or any
executive officer or director of our subsidiaries, has engaged in any
transactions involving the Shares during the 40 business days preceding the date
of the Offer.
Based upon our records and information furnished to us, except as set out
in this Offer to Purchase, neither we nor, to our knowledge, any of our
directors or executive officers, nor any of our subsidiaries' directors or
executive officers, is a party to any contract, arrangement, understanding or
relationship relating, directly or indirectly, to the Offer with any other
person with respect to the Shares.
17
<PAGE> 22
12. CERTAIN EFFECTS OF THE OFFER.
As of November 13, 1996, we had issued and outstanding 7,287,858 Class A
Shares and 1,697,520 Class B Shares. The Class B Shares are not subject to the
Offer; however, the Class B Shares are convertible into Class A Shares on a
one-for-one basis. If you hold Class B Shares and would like to tender Class A
Shares into the Offer, you must first notify the Transfer Agent in writing of
your desire to convert some or all of your Class B Shares into Class A Shares.
See "How to Tender Shares -- Class B Shares" for a discussion of factors you
should consider before deciding to convert your Class B Shares into Class A
Shares.
The 800,000 Shares we are offering to purchase represent approximately
11.0% of the Shares of the Class A Common Stock issued and outstanding as of
November 13, 1996. Shareholders who do not tender Shares or whose Shares are not
purchased in the Offer will have a proportionate increase in their ownership in
us, subject to our right to issue additional Shares and other equity securities
in the future. Our purchase of Shares pursuant to the Offer will reduce the
number of Shares that are available to be publicly traded on the NYSE, and is
likely to reduce the number of shareholders. Nonetheless, we anticipate that
there will be enough shareholders and sufficient publicly available Shares
following the Offer to provide a reasonably liquid trading market for them.
However, we can make no assurances that sufficient publicly traded Shares will
be available following the Offer to provide a reasonably liquid trading market.
Based on the published guidelines of the NYSE, we do not believe that our
purchase of Shares pursuant to the Offer will cause the Shares to be delisted
from the NYSE. In addition, we believe that our purchase of Shares pursuant to
the Offer will not result in the Shares or the Class B Shares becoming eligible
for deregistration under the Exchange Act.
As of November 13, 1996, our directors and executive officers as a group
beneficially owned an aggregate of 774,530 (approximately 10.6%) of the
outstanding Shares. We have been informed that none of our directors or
executive officers intends to tender any Shares pursuant to the Offer. If we
purchase all 800,000 Shares we are offering to purchase pursuant to the Offer
and none of our directors or executive officers tenders any Shares pursuant to
the Offer, following the Offer (assuming no other transactions by them), our
directors and executive officers as a group would beneficially own approximately
11.9% of the outstanding Shares.
As of November 13, 1996, members of the Taplin and Rankin families,
including certain trusts in which they have an interest, as identified in our
Proxy Statement, dated March 29, 1996 (see "Certain Information About
Us -- Additional Information"), under the caption "Beneficial Ownership of Class
A Common and Class B Common" (the "Family Shareholders"), as a group,
beneficially owned Class A Shares and Class B Shares with a combined voting
power of 74.6%. We have been informed that none of the Family Shareholders
intends to tender any Shares pursuant to the Offer. However, such Family
Shareholders may sell (but not purchase) Shares in the market during or after
the Offer. If we purchase all 800,000 Shares we are offering to purchase
pursuant to the Offer and none of the Family Shareholders tenders any Shares
pursuant to the Offer, then following the Offer, assuming no other transactions
by them and assuming no holder of Class B Shares converts its Class B Shares
into Class A Shares during the Offer, the Family Shareholders would beneficially
own Class A Shares and Class B Shares with a combined voting power of 77.2%.
With respect to, and in addition to, the open market purchase program (see
"Introduction" and "Background and Purpose of the Offer"), in the future we may
purchase additional Shares in the open market, in private transactions, through
tender offers, or otherwise, although we have no present intention to do so. Any
such purchases may be on terms which are more or less favorable to shareholders
than the terms of the Offer. Rule 13e-4 under the Exchange Act prohibits our
affiliates and us from purchasing Shares, other than pursuant to the Offer,
during the Offer and for at least ten business days following the Expiration
Date. Any possible future purchases we make will depend on many factors,
including the then-current market price of the Shares, our business and
financial condition, and general economic and market conditions existing at that
time.
Shares we acquire pursuant to the Offer will become treasury shares and
will be available for us to use without further shareholder action (except as
required by applicable Delaware law or the rules of the NYSE). We could use
Shares without shareholder approval to acquire other businesses, to raise
additional capital, and/or to distribute as stock dividends. We have no current
plans for the Shares we acquire pursuant to the Offer or any other treasury
shares.
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<PAGE> 23
The Shares are currently "margin securities" under the rules of the Federal
Reserve Board. This has the effect among other things, of allowing brokers to
extend credit on the collateral of the Shares. We believe that, following the
purchase of Shares pursuant to the Offer, the Shares will continue to be "margin
securities" for the purposes of the Federal Reserve Board's margin regulations.
NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO
WHETHER OR NOT TO TENDER SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO
TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES.
WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE
OFFICERS, OR FAMILY SHAREHOLDERS INTENDS TO TENDER ANY SHARES PURSUANT TO THE
OFFER.
13. CERTAIN LEGAL MATTERS; REGULATORY AND OTHER APPROVALS.
We are not aware of any license or regulatory permit material to our
business that might be adversely affected by our purchase of Shares pursuant to
the Offer or of any approval, consent, or other action by any governmental,
administrative, or regulatory authority or agency, domestic or foreign, that
would be required for our purchase of Shares pursuant to the Offer. Should any
such approval, consent, or other action be required, we expect, but shall not be
obligated, to seek such approval, consent, or other action. We cannot predict
whether we may determine that we will have to delay the acceptance for payment
of, or payment for, Shares tendered pursuant to the Offer pending the outcome of
any such matter. We cannot assure that we could get any such approval, consent,
or other action, if needed, or that we could get it without substantial
conditions or that the failure to obtain any such approval or other action might
not result in adverse consequences to our business. Our obligations under the
Offer to accept for payment and pay for Shares are subject to the conditions set
out in "Certain Conditions of the Offer."
14. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
We have included the following federal income tax discussion for general
information only. The discussion is directed primarily to shareholders who hold
their Shares as "capital assets" (which in this instance, generally, means
Shares held neither as inventory nor for sale to customers) within the meaning
of Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code"),
and does not purport to consider all aspects of federal income taxation that may
be relevant to a particular shareholder. Certain shareholders, including
insurance companies, tax-exempt organizations, financial institutions, foreign
persons, broker-dealers, and shareholders who got their Shares as compensation
may be subject to special rules not discussed below.
THIS DISCUSSION DOES NOT CONSIDER THE EFFECT OF ANY APPLICABLE FOREIGN,
STATE, LOCAL, OR OTHER TAX LAWS. WE URGE YOU TO CONSULT A TAX ADVISOR AS TO THE
PARTICULAR TAX CONSEQUENCES OF THE OFFER TO YOU, INCLUDING THE APPLICATION OF
FOREIGN, STATE, LOCAL, AND OTHER TAX LAWS.
(a) In General. Your sale of Shares pursuant to the Offer will be a
redemption taxable to you under federal income tax laws, and may also be taxable
to you under applicable foreign, state, local, and other tax laws. Whether
proceeds of the redemption are treated as dividend income or as sale
consideration, possibly resulting in capital gain, to you will depend on your
particular facts. Any capital gain or loss will be long-term capital gain or
loss if you held the Shares sold for more than one year at the time of the sale,
and short-term capital gain or loss if you held such Shares for one year or less
at such time.
(b) Dividend vs. Exchange Treatment. The amount and character of the
income recognized on a sale pursuant to the Offer will depend on whether the
sale is treated as a "dividend" or, instead, as an "exchange" of the Shares.
Under Code Section 302, your sale of Shares pursuant to the Offer will in most
instances be treated as an "exchange" on which you will recognize gain or loss
if the sale:
(1) constitutes a "substantially disproportionate" redemption as to
you;
(2) is "not essentially equivalent to a dividend" to you; or
(3) results in a "complete termination" of your stock interest in us.
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<PAGE> 24
If you meet any of the above-three tests for "exchange" treatment, you will
recognize gain or loss equal to the difference between the amount of cash
received pursuant to the Offer and your adjusted tax basis in the Shares sold.
Such recognized gain or loss will be capital gain or loss if you hold the Shares
as a capital asset (assuming you are not a "dealer in securities"). Finally, the
special rules of Code Section 1236 govern whether a "dealer in securities" will
recognize a capital gain or loss; those rules are beyond the scope of this
discussion.
To determine whether you meet any of the three tests under Code Section
302, you must take into account not only Class A and Class B Shares you actually
own, but also Class A and Class B Shares you constructively own within the
meaning of Code Section 318. Under Code Section 318, you may constructively own
Class A and Class B Shares that are actually owned, and in some cases
constructively owned, by certain related individuals and certain related
entities in which you, a related individual, or a related entity has an
interest. Moreover, you may constructively own Class A and Class B Shares that
you or a related individual or entity has the right to acquire by the exercise
of an option or warrant. Under certain circumstances, however, you may avoid the
constructive ownership of Class A and Class B Shares owned by family members
solely for the purpose of determining whether the "complete termination" of
interest test referred to above has been satisfied if (a) you do not actually
own any Class A and Class B Shares after our purchase, and (b) in accordance
with Code Section 302(c)(2), you file an effective waiver with the Internal
Revenue Service ("IRS"). Please consult your tax advisor regarding such a
waiver.
"SUBSTANTIALLY DISPROPORTIONATE": A sale of stock pursuant to the Offer, in
general, will be "substantially disproportionate" as to you if immediately after
the sale:
(a) the aggregate percentage of voting power of all of the outstanding
Class A Shares and Class B Shares that you then actually and
constructively own (treating as not outstanding all Shares purchased by
us pursuant to the Offer) is less than 80% of the aggregate percentage
of voting power of all of the outstanding Class A Shares and Class B
Shares that you actually and constructively owned immediately before
the sale of Shares (treating as outstanding all Shares purchased by us
pursuant to the Offer); and
(b) the aggregate fair market value of all of the outstanding Class A
Shares and Class B Shares that you then actually and constructively own
(treating as not outstanding all Shares purchased by us pursuant to the
Offer) is less than 80% of the aggregate fair market value of all of
the outstanding Class A Shares and Class B Shares that you actually and
constructively owned immediately before the sale of Shares (treating as
outstanding all Shares purchased by us pursuant to the Offer).
The above description of the "substantially disproportionate" test is based
on certain conclusions expressed in an IRS public ruling. That ruling involved a
corporation which had voting and non-voting common shares outstanding and which
purchased some of each class in a share redemption transaction. Because both
classes of our outstanding common stock are voting shares, because the voting
rights of those two classes differ, and because we are only offering to purchase
Class A Shares pursuant to the Offer, certain issues exist as to precisely how
the Code Section 302 "substantially disproportionate" percentage determinations,
described above, are to be calculated in these circumstances. For this reason,
if you intend to rely on the "substantially disproportionate" test to obtain
"sale or exchange" treatment for Shares that you sell pursuant to the Offer, you
should consult your tax advisor regarding the particulars of how this test will
be applied to you in this instance.
"NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND": Even if your receipt of cash in
exchange for Shares pursuant to the Offer fails to meet the "substantially
disproportionate" test, you may nevertheless meet the "not essentially
equivalent to a dividend" test. Whether you meet this test will depend on your
facts and circumstances. In any case, in order to satisfy this test, your sale
of Shares pursuant to the Offer must result in a "meaningful reduction" in your
percentage voting interest in us, taking into account the constructive ownership
rules of Code Section 318 referred to above. The IRS has held in a public ruling
that, under the particular facts of that ruling, a 3.3% reduction in the
percentage stock ownership of a stockholder constituted a "meaningful reduction"
when the stockholder owned .0001118% of the publicly-held corporation's stock
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<PAGE> 25
before a redemption and did not exercise any control over corporate affairs. In
measuring the change, if any, in your percentage voting interest in us, this
test is applied by taking into account all Shares that we purchase pursuant to
the Offer, including Shares purchased from other shareholders.
If, taking into account the constructive ownership rules of Code Section
318 referred to above, a shareholder actually and constructively owns only Class
A Shares and no Class B Shares and the number of Shares so owned is minimal
(i.e., less than one percent (1%) of the total number of outstanding Class A
Shares) in relation to the total number of Shares outstanding prior to the date
on which we complete the Offer, any Shares which such shareholder sells pursuant
to the Offer should result in his experiencing a "meaningful reduction" in his
percentage voting interest in NACCO, once the Offer has been completed. Such
selling shareholder would, under these circumstances, be entitled to treat his
sale of Shares to us pursuant to the Offer as a "sale or exchange" for U.S.
federal income tax purposes.
If you intend to rely on the "not essentially equivalent to a dividend"
test to obtain "sale or exchange" treatment for Shares that you sell pursuant to
the Offer, particularly if you own, actually or constructively, a combination of
our Class A Shares and our Class B Shares, you are urged to consult a tax
advisor, in as much as the redeeming corporation in the public ruling described
in the next immediately preceding paragraph above had only one class of stock
outstanding, and we have two classes of outstanding voting shares.
"COMPLETE TERMINATION": Finally, your sale of Shares pursuant to the Offer
will be deemed to result in a "complete termination" of your interest in us if,
immediately after the sale, either:
(a) you own, actually and constructively, no shares of our common
stock (including Class B Shares); or
(b) you actually own no shares of our common stock (including Class B
Shares) and constructively own only shares of our common stock as
to which you are eligible to waive, and do effectively waive, such
constructive ownership under the procedures described in Code
Section 302(c)(2), as discussed above.
Even if all the shares of our common stock which you actually and
constructively own are tendered pursuant to the Offer, proration of the offer
may result in our purchasing fewer than all of the Shares that you tender.
Accordingly, you should consider whether proration may adversely affect your
qualification for "exchange" treatment. Moreover, you should be aware that the
IRS may take into account contemporaneous dispositions or acquisitions by you,
or by individuals or entities related to you, of shares of our common stock that
are deemed for federal income tax purposes to be integrated with your sale of
Shares to us in the Offer for purposes of determining whether you meet any of
the three tests described above for obtaining "exchange" treatment under Code
Section 302 for the Shares that we purchase from you pursuant to the Offer. If
you have any questions as to whether your payment for your Shares will be
eligible for "exchange" treatment, consult a tax advisor.
If you do not meet any of the three Code Section 302 tests described above,
you will be treated as having received a dividend in an amount equal to the full
amount of cash that you receive pursuant to the Offer, provided that we have
sufficient current or accumulated earning and profits (as we believe we do). In
that case, your tax basis in the redeemed Shares will not reduce the amount of
the dividend; the entire amount of cash that you receive will be taxable as
ordinary income; and your tax basis in the redeemed Shares will be added to the
tax basis of the remaining shares of our common stock which you actually or
constructively own.
(c) Timing of Income Recognition. A shareholder is generally taxable on
dividend income in the year in which he receives the dividend. Therefore, if
your sale of Shares pursuant to the Offer will cause you to realize a dividend,
and the Offer closes in 1996 but because of the customary practice of the
Depositary you do not receive consideration for your Shares until 1997, you will
not recognize dividend income until 1997. A shareholder is taxable on the gain
or loss realized from a year-end sale of publicly-traded stock in the year in
which the trade date occurs. Therefore, if your sale of Shares pursuant to the
Offer is treated as a "sale or exchange", and the Offer closes in 1996, you will
recognize a gain or loss in 1996 even if you do not receive the payment for your
Shares until 1997.
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<PAGE> 26
(d) Corporate Dividends-Received Deduction. If a sale of Shares by a
corporate shareholder is treated as a dividend, the corporate shareholder may be
entitled to claim a dividends-received deduction equal to 70% of the dividend.
Corporate shareholders should, however, consider the effect of Code Section
246(c), which, in part, disallows the 70% dividends-received deduction for stock
that is held for 45 days or less. For this purpose, the length of time that a
taxpayer is deemed to have held stock may be reduced by periods during which the
taxpayer's risk of loss with respect to the stock is diminished by reason of the
existence of certain options or other transactions. Moreover, under Code Section
246A, if a corporate shareholder has incurred indebtedness directly attributable
to an investment in Shares, the 70% dividends-received deduction may be reduced
by a percentage generally computed based on the ratio of the amount of such
indebtedness to its total adjusted tax basis in the Shares.
In addition, corporate shareholders are also subject to a special rule
which requires them in certain circumstances to reduce their stock basis to the
extent they actually or constructively receive an "extraordinary dividend", as
defined in Code Section 1059. If you have any questions as to whether payment
for your Shares, or for the Shares of any other shareholder that is related to
you, which constitutes a "dividend" will cause you to be considered as actually
or constructively receiving an "extraordinary dividend", consult a tax advisor.
(e) Foreign Shareholders. A "foreign shareholder" generally is any
shareholder that is not, under United States tax laws, (a) a citizen or resident
of the United States; (b) a corporation or partnership created or organized in
the United States or under the laws of the United States or any State; (c) any
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
fiduciaries have the authority to control all substantial decisions relating to
the trust, or (d) any estate except an estate the income of which, from sources
outside the United States which is not effectively connected with the conduct of
a trade or business within the United States, is not subject to U.S. income
taxation. The Depositary will withhold federal income tax equal to 30% of the
gross amount paid to a foreign shareholder or to such shareholder's agent unless
the Depositary determines that (1) a reduced rate of withholding applies
pursuant to a tax treaty; or (2) an exemption from withholding applies because
such gross amount is effectively connected with the conduct of a trade or
business by the foreign shareholder within the United States.
Dividend distributions paid to an address outside the United States are
presumed to be paid to a resident of such foreign country for purposes of
withholding. Therefore, the Depositary will determine the applicable rate of
withholding by reference to a shareholder's address, unless the facts and
circumstances indicate that such reliance is not warranted or if applicable law
(such as an applicable treaty, the Code or the Treasury regulations thereunder)
requires some other method for determining a shareholder's residence.
To claim an exemption from withholding on the ground that the gross amount
paid pursuant to the Offer is effectively connected with the conduct of a trade
or business by a foreign shareholder within the United States, the foreign
shareholder must deliver to the Depositary a properly executed statement
claiming such exemption. You can obtain such a statement, which is embodied in
IRS Form 4224, from the Depositary. If the gross amount paid pursuant to the
Offer is effectively connected with the conduct of a trade or business by a
foreign shareholder within the United States, such gross amount (as adjusted by
any applicable deductions or for recovery of basis) will be subject to U.S.
federal income tax at the normally applicable rates and would be exempt from the
30% withholding tax described above.
If you are a foreign shareholder eligible for a reduced (or zero) rate of
U.S. withholding tax either pursuant to a tax treaty or because you meet the
"complete termination", "substantially disproportionate", or "not essentially
equivalent to a dividend" test described above, you generally may obtain a
refund of any excess amounts withheld by filing an appropriate claim for refund
with the IRS. If you are a foreign shareholder, you should consult your own tax
advisor regarding the application of the federal income tax withholding rules to
you, including your eligibility for a withholding tax reduction or exemption and
the refund procedures applicable to you.
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This discussion does not address all aspects of U.S. federal taxation or
any aspects of foreign, state or local tax law that may be relevant to foreign
shareholders in light of their personal circumstances. Each foreign shareholder
is advised to consult a personal tax adviser with respect to the consequences of
participating in the Offer.
(f) Effect on Non-Selling Shareholders. Under Code Section 305(c), if a
corporation purchases its shares from shareholders under circumstances where the
payment is treated as a "dividend" to the selling shareholders, other
shareholders of the corporation who do not sell any of their shares to the
corporation and whose proportionate interest in the earnings and profits or
assets of the corporation is thereby increased as a result of such share
purchase may, in certain instances, be treated as if they received a taxable
dividend distribution from the corporation. We have been advised by our tax
counsel that Code Section 305(c) will not be applicable to the purchase by us of
Shares pursuant to the Offer or during the subsequent two-year open market
repurchase program (the "Open Market Repurchase Program") and that, in its
opinion, no non-selling shareholder of NACCO, and no shareholder of NACCO who
sells to us pursuant to the Offer or in the Open Market Repurchase Program less
than all of the Shares which he, she or it owns, will realize a dividend
distribution from us, with respect to shares of our Common Stock, including
Shares, that such shareholder continues to own, as a result of our purchase of
Shares from other shareholders of NACCO pursuant to the Offer or in the Open
Market Repurchase Program.
EXCEPT AS INDICATED IN SECTION 14(f) OF THIS OFFER, WE INTEND THE ABOVE TAX
DISCUSSION TO PROVIDE GENERAL INFORMATION ONLY. THE TAX CONSEQUENCES TO YOU OF A
SALE PURSUANT TO THE OFFER WILL VARY DEPENDING, AMONG OTHER THINGS, ON YOUR
PARTICULAR CIRCUMSTANCES. THIS TAX DISCUSSION PROVIDES NO INFORMATION AS TO ANY
STATE, LOCAL, OR FOREIGN TAX CONSEQUENCES OF A SALE PURSUANT TO THE OFFER. WE
URGE YOU TO CONSULT YOUR TAX ADVISOR WITH REGARD TO FEDERAL, STATE, LOCAL, AND
FOREIGN TAX CONSEQUENCES OF YOUR SALE OF SHARES PURSUANT TO THE OFFER, INCLUDING
ANY APPLICATION TO YOU OF THE CONSTRUCTIVE STOCK OWNERSHIP RULES DISCUSSED
ABOVE. THIS DISCUSSION IS BASED UPON CURRENTLY PREVAILING PROVISIONS OF THE
CODE, THE APPLICABLE TREASURY REGULATIONS PROMULGATED AND PROPOSED THEREUNDER,
JUDICIAL AUTHORITY, AND CURRENT ADMINISTRATIVE RULINGS AND PRACTICE, ALL OF
WHICH ARE SUBJECT TO CHANGE, POSSIBLY ON A RETROACTIVE BASIS.
15. EXTENSION OF OFFER; TERMINATION; AMENDMENTS.
We may, at any time or from time to time by giving oral or written notice
to the Depositary, extend the Offer. We may also terminate the Offer and not
accept for payment or pay for any Shares not already accepted for payment, or,
subject to applicable law, postpone acceptance for payment for Shares, upon the
occurrence of any of the conditions specified in "Certain Conditions of the
Offer" by giving oral or written notice of such termination or postponement to
the Depositary. Any such delay in the acceptance of Shares or the payment for
Shares will be by an extension of the Offer. We may also amend the Offer in any
respect.
We will announce publicly any extension, termination, postponement, or
amendment of the Offer as promptly as practicable. Without limiting the manner
in which we may choose to make a public announcement, we are not required to
publish, advertise, or otherwise communicate any such public announcement other
than by release to the Dow Jones News Service or Reuters Economic Services.
If we materially change the terms of the Offer or the information
concerning the Offer, or if we waive a material condition of the Offer, we will
extend the Offer to the extent required by Rules 13e-4(e)(2) and 13e-4(f)(1)(ii)
under the Exchange Act. These rules provide that the minimum period during which
a tender offer must remain open following material changes in the terms of the
Offer or information concerning the Offer (other than a change in price or a
change in percentage of securities sought) will depend on the facts, including
the relative materiality of such terms or information. Pursuant to Rule
13e-4(f)(1)(ii), the Offer will continue or be extended for at least ten
business days from the time we publish a notice that we will:
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(a) increase or decrease the price we will pay for Shares or the dealer's
soliciting fee; (b) decrease the number of Shares we seek; or (c) increase the
number of Shares we seek by more than 2% of the outstanding Shares.
16. FEES AND EXPENSES.
Other than as described below, no fees will be paid to brokers, dealers or
others in connection with the Offer.
(a) The Dealer Manager: We have retained J.P. Morgan Securities Inc.
as our Dealer Manager in connection with the Offer. We will pay the Dealer
Manager a fee of 0.4% of the total purchase price we pay for the Shares
pursuant to the Offer. We will also reimburse the Dealer Manager for its
reasonable out-of-pocket expenses relating to the Offer, including the
reasonable fees and expenses of its counsel. We have also agreed to
indemnify the Dealer Manager against certain liabilities in connection with
the Offer, including certain liabilities under the federal securities laws.
We have retained the Dealer Manager to render certain advisory
services in connection with the open market purchase program expected to be
consummated following the Offer. We will pay the Dealer Manager reasonable
and customary compensation in connection with such services. An affiliate
of J.P. Morgan Securities Inc., Morgan Guaranty Trust Company of New York,
serves as Agent under each of the NAC Credit Facility and the NMHG Credit
Facility, pursuant to which it receives reasonable and customary
compensation. See "Source and Amount of Funds."
The Dealer Manager has rendered various investment banking and other
advisory services to us in the past, for which it received reasonable and
customary compensation from us. We expect the Dealer Manager to continue to
render such services in the future, for which it will continue to receive
reasonable and customary compensation from us.
(b) The Information Agent and Depositary: We have retained MacKenzie
Partners, Inc. as Information Agent and First Chicago Trust Company of New
York as Depositary in connection with the Offer. The Information Agent may
contact you by mail, telephone, telex, telegraph, and personal interviews,
and may request brokers, dealers, and other nominee shareholders to forward
materials relating to the Offer to beneficial owners. We will pay the
Depositary and the Information Agent reasonable and customary compensation
for their services. We will also reimburse the Depositary and the
Information Agent for out-of-pocket expenses, including reasonable fees and
expenses of its counsel, and we have agreed to indemnify the Depositary and
the Information Agent against certain liabilities in connection with the
Offer, including certain liabilities under the federal securities laws.
We will, on request, reimburse such persons for customary handling and
mailing expenses incurred in forwarding materials about the Offer to the
beneficial owners for which they act as nominees. We have not authorized
any broker, dealer, commercial bank, trust company, or other person (other
than the Dealer Manager) to act as our agent for purposes of this Offer. We
will pay (or cause to be paid) any stock transfer taxes on our purchases of
Shares, except as provided otherwise in "Acceptance for Payment of Shares
and Payment of Purchase Price" above and in Instruction 8 of the Letter of
Transmittal.
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<PAGE> 29
17. MISCELLANEOUS.
We are not making the Offer to, nor will we accept tenders from or on
behalf of, holders of Shares in any jurisdiction in which the Offer or its
acceptance would not comply with the securities or Blue Sky laws of such
jurisdiction. In any jurisdiction the securities or Blue Sky laws of which
require the Offer to be made by a licensed broker or dealer, the Offer is being
made on our behalf by the Dealer Manager or one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
Very truly yours,
NACCO INDUSTRIES, INC.
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SCHEDULE A
CERTAIN TRANSACTIONS INVOLVING THE SHARES
EXECUTIVE OFFICERS AND DIRECTORS
During the 40 business days prior to November 18, 1996, transactions
effected in the Class A Shares by the Company and the Company's Family
Shareholders, subsidiaries, executive officers, directors and affiliates of the
foregoing persons were as follows:
<TABLE>
<CAPTION>
PERSONS WHO AVERAGE
EFFECTED NUMBER PRICE PER
TRANSACTION DATE NATURE OF TRANSACTION OF SHARES SHARE
- ------------------ --------- --------------------------- --------- ---------
<S> <C> <C> <C> <C>
Susan S. Panella 10/30/96 Broker Transaction on NYSE 200 $46.125
Martha S. Kelly 10/30/96 Broker Transaction on NYSE 400 $46.00
</TABLE>
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[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 32
The Depositary will accept legible copies of the Letter of Transmittal. You
or your broker, dealer, commercial bank, trust company or other nominee should
send the Letter of Transmittal and certificates for the Shares and any other
required documents to the Depositary at one of its addresses set out below:
The Depositary for the Offer:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
BY HAND:
<S> <C> <C>
First Chicago Trust Company of New York
ATTN: Tenders & Exchanges
C/O The Depository Trust Company
BY MAIL: 55 Water Street, DTC TAD BY OVERNIGHT COURIER:
Tenders & Exchanges Vietnam Veterans Memorial Plaza Tenders & Exchanges
P.O. Box 2569-Suite 4660 New York, NY 10041 14 Wall Street
Jersey City, New Jersey BY FACSIMILE TRANSMISSION: Suite 4680-8th Floor
07303-2569 (201) 222-4720 New York, New York 10005
or
(201) 222-4721
Confirm by Telephone:
(201) 222-4707
</TABLE>
Please contact the Information Agent at the telephone numbers below with
any questions or requests for assistance or additional copies of the Offer to
Purchase and the Letter of Transmittal and the Notice of Guaranteed Delivery.
You may also contact the Dealer Manager or your broker, dealer, commercial bank,
or trust company for assistance concerning the Offer. To confirm the receipt of
your Letter of Transmittal, Notice of Guaranteed Delivery, or certificates for
your shares by the Depositary, please contact the Depositary at (201) 222-4707.
THE INFORMATION AGENT FOR THE OFFER:
[MACKENZIE PARTNERS, INC. LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or Call Toll Free (800) 322-2885
THE DEALER MANAGER FOR THE OFFER:
J.P. MORGAN & CO.
60 Wall Street
New York, New York 10260
(212) 648-6234
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER CLASS A SHARES OF
NACCO INDUSTRIES, INC.
PURSUANT TO ITS OFFER TO PURCHASE,
DATED NOVEMBER 18, 1996
THE OFFER, THE PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996,
UNLESS THE OFFER IS EXTENDED.
TO: FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS DEPOSITARY
<TABLE>
<CAPTION>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT COURIER:
Tenders & Exchanges First Chicago Trust Company of New York Tenders & Exchanges
P.O. Box 2559-Suite 4660 ATTN: Tenders & Exchanges 14 Wall Street
Jersey City, New Jersey C/O The Depository Trust Company Suite 4680-8th Floor
07303-2559 55 Water Street, DTC TAD New York, New York 10005
Vietnam Veterans Memorial Plaza
New York, NY 10041
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Letter of Transmittal is to be used only if certificates for shares of
Class A Common Stock, par value $1.00 per share (the "Class A Shares" or the
"Shares"), are to be forwarded herewith unless an Agent's Message (as defined in
the Offer to Purchase) is utilized or if delivery of Class A Shares is to be
made by book-entry transfer to the Depositary's account at The Depository Trust
Company (the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in "How to Tender Shares -- Book-Entry Delivery" in the Offer to Purchase.
The Company also has outstanding Class B Common Stock, par value $1.00 per
share (the "Class B Shares"). Because of transfer restrictions, no trading
market has developed, or is expected to develop, for the Class B Shares. The
Class B Shares are not subject to the Offer; however, the Class B Shares are
convertible into Class A Shares on a one-for-one basis. If you hold Class B
Shares and would like to tender Class A Shares into the Offer, you must first
notify Key Shareholder Services, the transfer agent for the Shares (the
"Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor,
Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your
Class B Shares into Class A Shares, and enclose share certificates representing
the Class B Shares you would like to so convert and executed stock powers with
respect to such certificates. See Instruction 2 and "How to Tender
Shares -- Class B Shares" in the Offer to Purchase for a discussion of factors
you should consider before deciding to convert your Class B Shares into Class A
Shares.
Shareholders who cannot deliver their Shares and all other documents
required hereby to the Depositary by the Expiration Date (as defined in the
Offer to Purchase), or who are unable to comply with the procedures for
book-entry transfer on a timely basis, and who wish to tender their Shares must
do so pursuant to the guaranteed delivery procedure set forth in "How to Tender
Shares" in the Offer to Purchase. See Instruction 2. Delivery of documents to
the Book-Entry Transfer Facility does not constitute delivery to the Depositary.
<PAGE> 2
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
<TABLE>
<S> <C> <C> <C>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
TOTAL NUMBER
OF SHARES NUMBER OF
CERTIFICATE REPRESENTED SHARES
NUMBER(S)* BY CERTIFICATE(S)* TENDERED**
TOTAL
</TABLE>
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares
represented by any certificates delivered to the Depositary are being
tendered. See Instruction 4.
- -------------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution ___________________________________________
[ ] DTC Account No. _____________________________________________________
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Tendering Shareholder(s) _____________________________________
Date of Execution of Notice of Guaranteed Delivery ______________________
Name of Institution which Guaranteed Delivery ___________________________
If delivery is by book-entry transfer:
Name of Tendering Institution ______________________________________
[ ] DTC Account No. _____________________________________________________
Transaction Code No. ____________________________________________________
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE> 3
Ladies and Gentlemen:
The undersigned hereby tenders to NACCO Industries, Inc., a Delaware
corporation (the "Company"), the above-described shares of Class A Common Stock,
$1.00 par value per share (the "Shares"), pursuant to the Company's offer to
purchase up to 800,000 Shares at a price per Share hereinafter set forth, net to
the seller in cash, upon the terms and subject to the conditions set forth in
the Company's Offer to Purchase, dated November 18, 1996 (the "Offer to
Purchase"), receipt of which is hereby acknowledged, and in this accompanying
Letter of Transmittal (which together constitute the "Offer").
Subject to and effective upon the Company's acceptance for payment of and
payment for 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 the Company all right, title and interest
in and to all the Shares that are being tendered hereby and appoints the
Depositary the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest), to
(a) deliver certificates for such Shares, or transfer ownership of such Shares
on the account books maintained by the Book-Entry Transfer Facility, together,
in any such case, with all accompanying evidences of transfer and authenticity,
to or upon the order of the Company, (b) present such Shares for transfer and
cancellation on the books of the Company and (c) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares, all in
accordance with the terms of the Offer. The Depositary will act as agent for
tendering holders for the purpose of receiving payment from the Company and
transmitting payment to the tendering holders.
The undersigned hereby represents and warrants that the undersigned has a
net long position (within the meaning of Rule 14e-4 of the Securities Exchange
Act) in the Shares at least equal to the Shares being tendered and has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby and that, when the same are accepted for payment by the Company, the
Company will acquire good and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claims. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Depositary or the Company to be necessary or desirable
to complete the sale, assignment and transfer of the Shares tendered hereby and
has read, understands and agrees with, all the terms and conditions of the
Offer.
The undersigned understands that, upon the terms and subject to the
conditions of the Offer, the Company will determine the per Share price (not
greater than $50.00 nor less than $43.50 per Share) (the "Purchase Price") that
it will pay for Shares validly tendered and not withdrawn pursuant to the Offer
taking into account the number of Shares so tendered and the prices specified by
tendering shareholders. The undersigned understands that the Company will select
the lowest Purchase Price that will enable it to purchase 800,000 Shares (or
such lesser number of Shares as are validly tendered at prices not greater than
$50.00 nor less than $43.50 per Share) pursuant to the Offer. The undersigned
understands that under certain circumstances set forth in the Offer to Purchase,
the Company may terminate or amend the Offer or may postpone the acceptance for
payment of, or payment for, Shares tendered or may accept for payment fewer than
all of the Shares tendered hereby. The undersigned understands that the Company
has expressly reserved the right, in its sole discretion, to purchase up to an
additional 2% of the outstanding Shares pursuant to the Offer without the need
to extend the Offer. The undersigned understands that tenders of Shares pursuant
to any one of the procedures described in "How to Tender Shares" in the Offer to
Purchase and in the instructions hereto will constitute an agreement between the
undersigned and the Company upon the terms and subject to the conditions of the
Offer. The undersigned understands that the Company also has outstanding Class B
Common Stock, par value $1.00 per share (the "Class B Shares"), and that the
Class B Shares are not subject to the Offer. The undersigned understands that
the Class B Shares are convertible into Class A Shares on a one-for-one basis
and that if it would like to tender Shares into the Offer it must follow the
instructions set forth in Instruction 2 and "How to Tender Shares" in the Offer
to Purchase as to how to accomplish such conversion, and that it should
carefully consider the factors described therein before requesting such
conversion.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the Purchase Price of any Shares purchased (less the
amount of any federal income or backup withholding tax required to be withheld)
and return any Shares not tendered or not purchased, in the name(s) of the
undersigned (and in the case of Shares tendered by book-entry transfer, by
credit to the account at the Book-Entry Transfer Facility designated above).
Similarly, unless otherwise indicated herein under "Special Delivery
Instructions," please mail the check for the Purchase Price of any Shares
purchased (less the amount of any federal income or backup withholding tax
required to be withheld) and any certificates for Shares not tendered or not
purchased (and accompanying documents, as appropriate) to the undersigned at the
address shown below the undersigned's signature(s). In the event that both
"Special Payment Instructions" and "Special Delivery Instructions" are
completed, please issue the check for the Purchase Price of any Shares purchased
(less the amount of any federal income or backup withholding tax required to be
withheld) and return any Shares not tendered or not purchased in the name(s) of,
and mail said check and any certificates to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation, pursuant to the
"Special Payment Instructions," to transfer any Shares from the name of the
registered holder(s) thereof, or to order the registration or transfer of such
Shares tendered by book-entry transfer, if the Company does not accept for
payment any of the Shares so tendered.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Except as stated in the Offer, this tender is
irrevocable.
<PAGE> 4
- -------------------------------------------------------------------------------
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
(SEE INSTRUCTION 5)
------------------------
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED, OR IF
NO BOX IS CHECKED, THERE IS NO VALID
TENDER OF SHARES.
SHARES TENDERED AT PRICE
DETERMINED BY DUTCH AUCTION
[ ] The undersigned wants to maximize the chance of having the Company
purchase all the Shares the undersigned is tendering (subject to the
possibility of proration). Accordingly, by checking this one box INSTEAD
OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders Shares
and is willing to accept the Purchase Price resulting from the Dutch
auction tender process. This action could result in receiving a price
per Share as low as $43.50 or as high as $50.00.
OR
SHARES TENDERED AT PRICE
DETERMINED BY SHAREHOLDER
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
[ ] $44.00 [ ] $45.00 [ ] $46.00 [ ] $47.00 [ ] $48.00 [ ] $49.00
[ ] $44.125 [ ] $45.125 [ ] $46.125 [ ] $47.125 [ ] $48.125 [ ] $49.125
[ ] $44.250 [ ] $45.250 [ ] $46.250 [ ] $47.250 [ ] $48.250 [ ] $49.250
[ ] $44.375 [ ] $45.375 [ ] $46.375 [ ] $47.375 [ ] $48.375 [ ] $49.375
[ ] $43.500 [ ] $44.500 [ ] $45.500 [ ] $46.500 [ ] $47.500 [ ] $48.500 [ ] $49.500
[ ] $43.625 [ ] $44.625 [ ] $45.625 [ ] $46.625 [ ] $47.625 [ ] $48.625 [ ] $49.625
[ ] $43.750 [ ] $44.750 [ ] $45.750 [ ] $46.750 [ ] $47.750 [ ] $48.750 [ ] $49.750
[ ] $43.875 [ ] $44.875 [ ] $45.875 [ ] $46.875 [ ] $47.875 [ ] $48.875 [ ] $49.875
[ ] $50.00
</TABLE>
- -------------------------------------------------------------------------------
<PAGE> 5
- -------------------------------------------------------------------------------
ODD LOTS
(SEE INSTRUCTION 6)
To be completed ONLY if Shares are being tendered by or on behalf of a person
owning beneficially, as of the close of business on November 13, 1996, an
aggregate of fewer than 100 Shares.
The undersigned either (check one box):
[ ] was the beneficial owner as of the close of business on November 13, 1996
of an aggregate of fewer than 100 Shares, all of which are being tendered,
or
[ ] is a broker, dealer, commercial bank, trust company or other nominee which
(a) is tendering, for the beneficial owners thereof, Shares with respect to
which it is the record owner, and
(b) believes, based upon representations made to it by such beneficial
owners, that each such person was the beneficial owner as of the close
of business on November 13, 1996 of an aggregate of fewer than 100
Shares and is tendering all of such Shares.
- -------------------------------------------------------------------------------
<PAGE> 6
- -------------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 7, 8 AND 9)
To be completed ONLY if the check for the Purchase Price of Shares purchased
(less the amount of any federal income and backup withholding tax required to be
withheld) or certificates for Shares not tendered or not purchased are to be
issued in the name of someone other than the undersigned, or if Shares delivered
by book-entry transfer that are not purchased are to be returned by credit to an
account maintained by the Book-Entry Transfer Facility.
Issue [ ] Check [ ] Certificate(s) to:
Name
- ------------------------------------------------------
(Please Print)
Address
- ------------------------------------------------------
- ------------------------------------------------------
(Zip Code)
- ------------------------------------------------------
(Taxpayer Identification No.)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 7, 8 AND 9)
To be completed ONLY if the check for the Purchase Price of Shares purchased
(less the amount of any federal income and backup withholding tax required to be
withheld) or certificates for Shares not tendered or not purchased are to be
mailed to someone other than the undersigned or to the undersigned at an address
other than that shown below the undersigned's signature(s).
Mail [ ] Check [ ] Certificate(s) to:
Name
- ------------------------------------------------------
(Please Print)
Address
- ------------------------------------------------------
- ------------------------------------------------------
(Zip Code)
- -------------------------------------------------------------------------------
<PAGE> 7
- -------------------------------------------------------------------------------
SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature(s) of Owner(s)
Name(s)
-------------------------------------------------------------------------
(Please Print)
- --------------------------------------------------------------------------------
Capacity (full title)
-----------------------------------------------------------
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number
--------------------------------------------------
Dated , 199
------------------------------------------------------------------- ---
Taxpayer ID No. or Social Security No.
------------------------------------------
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock
certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith.
If signature is by a trustee, executor, administrator, guardian, attorney-in-
fact, agent, officer of a corporation or other person acting in a fiduciary or
representative capacity, please set forth full title and see Instruction 7.)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED; SEE INSTRUCTIONS 1 AND 7)
Name of Firm
--------------------------------------------------------------------
Authorized Signature
------------------------------------------------------------
Dated , 199
------------------------------------------------------------------- ---
- -------------------------------------------------------------------------------
<PAGE> 8
<TABLE>
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------
PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS DEPOSITARY
- ------------------------------------------------------------------------------------------------------------
ENTER YOUR IDENTIFICATION NUMBER IN THE APPROPRIATE ------------------
SUBSTITUTE BOX. FOR MOST INDIVIDUALS, THIS IS YOUR SOCIAL SOCIAL SECURITY
FORM W-9 SECURITY NUMBER. IF YOU DO NOT HAVE A NUMBER, SEE NUMBER
DEPARTMENT OF THE TREASURY, HOW TO OBTAIN A TIN IN THE ENCLOSED GUIDELINES. OR
INTERNAL REVENUE SERVICE -----------------
Employer
Identification
Number(s)
---------------------------------------------------------------------------
NOTE: If the account is in more than one name, see the chart on page 2 of
enclosed Guidelines for guidelines on which number to give the payer.
---------------------------------------------------------------------------
Certificate: Under penalties of perjury, I certify FOR PAYEES EXEMPT
PAYER'S REQUEST that: FROM BACKUP
FOR TAXPAYER (1) The number shown on this form is my correct WITHHOLDING (SEE
IDENTIFICATION NUMBER Taxpayer Identification Number (or I am waiting ENCLOSED Guidelines)
for a number to be issued to me), and
(2) I am not subject to backup withholding either
because 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 the IRS has
notified me that I am no longer subject to
backup withholding.
SIGNATURE
-------------------------------------------
DATE , 199
----------------------------------------- --
- ------------------------------------------------------------------------------------------------------------
<FN>
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.
</TABLE>
<PAGE> 9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including most banks, savings and loan associations and brokerage
houses) which is a participant in the Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Guarantee Program or the Stock
Exchange Medallion Program (an "Eligible Institution"). Signatures on this
Letter of Transmittal need not be guaranteed (a) if this Letter of Transmittal
is signed by the registered holder(s) of the Shares (which term, for purposes of
this document, shall include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Shares)
tendered herewith and such holder(s) have not completed either the box entitled
"Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of an Eligible Institution. See Instructions 7 and 9.
2. Delivery of Letter of Transmittal and Shares; Guaranteed Delivery
Procedure. This Letter of Transmittal is to be used only if certificates for
the Shares are to be forwarded herewith unless an Agent's Message is utilized or
if delivery of Shares is to be made by book-entry transfer pursuant to the
procedures set forth in "How to Tender Shares" in the Offer to Purchase. For a
shareholder to validly tender Shares, certificates for all physically delivered
Shares, or a confirmation of a book-entry transfer of all Shares delivered
electronically into the Depositary's account at the Book-Entry Transfer
Facility, as well as a properly completed and duly executed Letter of
Transmittal (or copy thereof) and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth on the front page of this Letter of Transmittal by the Expiration Date.
The Company also has outstanding the Class B Shares. Because of transfer
restrictions, no trading market has developed, or is expected to develop, for
the Class B Shares. The Class B Shares are not subject to the Offer; however,
the Class B Shares are convertible into Class A Shares on a one-for-one basis.
If you hold Class B Shares and would like to tender Class A Shares into the
Offer, you must first notify Key Shareholder Services, the transfer agent for
the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer
Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of your desire to
convert some or all of your Class B Shares into Class A Shares, and enclose
share certificates representing the Class B Shares you would like to so convert
and executed stock powers with respect to such certificates. Once you receive
share certificates representing the Class A Shares, you can then tender Class A
Shares into the Offer. Please note that shareholders should allow 10-14 business
days for such conversion and that share certificates representing tendered
Shares must be received by the Depositary by the Expiration Date, or up to three
NYSE trading days thereafter if they follow the procedures for guaranteed
delivery set forth below. In considering whether you should convert Class B
Shares into Class A Shares in order to tender Class A Shares into the Offer,
please note that: (i) each Class B Share is entitled to ten votes per share
while each Class A Share is entitled to only one vote per Share; (ii) once you
convert your Class B Shares into Class A Shares and tender such Shares into the
Offer you cannot convert your Class A Shares back into Class B Shares in the
event that such Class A Shares are not purchased in the Offer; (iii) you may not
have any such Class A Shares purchased in the Offer because the price specified
by you may exceed the Purchase Price; and (iv) some portion of the Class A
Shares that you tender into the Offer may not be purchased pursuant to the Offer
due to proration. See "How to Tender Shares -- Class B shares" in the Offer to
Purchase.
Shareholders who cannot deliver their Shares and all other required
documents to the Depositary by the Expiration Date must tender their Shares
pursuant to the guaranteed delivery procedure set forth in "How to Tender
Shares" in the Offer to Purchase. Pursuant to such procedure: (a) such tender
must be made by or through an Eligible Institution, (b) a properly completed and
duly executed Notice of Guaranteed Delivery substantially in the form provided
by the Company must be received by the Depositary by the Expiration Date, and
(c) the certificates for all physically delivered Shares, or a confirmation of a
book-entry transfer of all Shares delivered electronically into the Depositary's
account at the Book-Entry Transfer Facility, as well as a properly completed and
duly executed Letter of Transmittal (or copy thereof) 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 three New York
Stock Exchange, Inc. trading days after the date of execution of such Notice of
Guaranteed Delivery, all as provided in "How to Tender Shares" in the Offer to
Purchase. See "How to Tender Shares" in the Offer to Purchase.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, IS AT
THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. DELIVERY WILL BE DEEMED MADE
ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. By executing this Letter of Transmittal (or
copy thereof), the tendering shareholder waives any right to receive any notice
of the acceptance for payment of the Shares.
3. Inadequate Space. If the space provided in the box captioned
"Description of Shares Tendered" is inadequate, the certificate numbers and/or
the number of Shares 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 represented by any certificate
delivered to the Depositary are to be tendered, fill in the number of Shares
that are to be tendered in the box entitled "Number of Shares Tendered." In such
case, a new certificate for the remainder of the Shares represented by the old
certificate will be sent to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the appropriate box on this Letter of Transmittal,
as promptly as practicable after the expiration or termination of the Offer. All
Shares represented by certificates delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated.
5. Indication of Price at Which Shares Are Being Tendered. For shares to be
properly tendered, the shareholder must check either the box indicating the
price per Share at which Shares are being tendered under "Shares Tendered at
Price Determined by Shareholder" or the box under "Shares Tendered at Price
Determined by Dutch Auction." See "How to Tender Shares" in the Offer to
Purchase.
By checking the box under "Shares Tendered at Price Determined by Dutch
Auction," the shareholder agrees to accept the Purchase Price that results from
the Dutch Auction tender process, which may be as low as $43.50 or as high as
$50.00 per Share. Checking the box under "Shares Tendered at Price Determined by
Shareholder" can result in none of the Shares being purchased if the Purchase
Price for the Shares is less than the price checked.
ONLY ONE BOX MAY BE CHECKED. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX
IS CHECKED, SHARES WILL NOT BE DEEMED TENDERED. A SHAREHOLDER WISHING TO TENDER
PORTIONS OF HIS HOLDINGS AT DIFFERENT PRICES MUST COMPLETE A SEPARATE LETTER OF
TRANSMITTAL FOR EACH PRICE
<PAGE> 10
AT WHICH EACH SUCH PORTION OF SHARES IS TENDERED. THE SAME SHARES CANNOT BE
TENDERED AT MORE THAN ONE PRICE UNLESS PREVIOUSLY WITHDRAWN AS PROVIDED IN
"WITHDRAWAL RIGHTS" IN THE OFFER TO PURCHASE AND RETENDERED.
6. Odd Lots. As described in "Tenders by Holders of Fewer Than 100 Shares"
in the Offer to Purchase, if the Company purchases less than all Shares tendered
before the Expiration Date and not withdrawn, the Shares purchased first will
consist of all Shares tendered by any shareholder who owned beneficially, as of
the close of business on November 13, 1996, an aggregate of fewer than 100
Shares and who tenders all such Shares at or below the Purchase Price. This
preference will not be available unless the box captioned "Odd Lots" is
completed. See "Tenders by Holders of Fewer Than 100 Shares" in the Offer to
Purchase.
7. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificates without any change whatsoever.
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different 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 is signed by the registered holder(s) of the
Shares tendered hereby, no endorsement of certificates or separate stock powers
are required unless payment of the Purchase Price is to be made, or Shares not
tendered or not purchased are to be returned, in the name of any person other
than the registered holder(s). Signatures on any such certificates or stock
powers must be guaranteed by an Eligible Institution. If this Letter of
Transmittal is signed by a person other than the registered holder(s) of the
Shares tendered hereby, certificates must be endorsed or accompanied by
appropriate stock powers, in either case, signed exactly as the name(s) of the
registered holder(s) appear(s) on the certificates for such Shares. Signature(s)
on any such certificates or stock powers must be guaranteed by an Eligible
Institution. See Instruction 1.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
the Company of the authority of such person so to act must be submitted.
8. Stock Transfer Taxes. Except as provided in this Instruction, the
Company will pay any stock transfer taxes with respect to the sale and transfer
of any Shares to it or its order pursuant to the Offer. If, however, payment of
the Purchase Price is to be made to, or Shares not tendered or not purchased are
to be returned, in the name of any person other than the registered holder(s),
or tendered Shares are registered in the name of a person other than the name of
the person(s) signing this Letter of Transmittal, then the amount of any stock
transfer taxes (whether imposed on the registered holder(s), such other person
or otherwise) payable on account of the transfer to such person will be deducted
from the Purchase Price by the Depositary unless satisfactory evidence of the
payment of such taxes, or exemption therefrom is submitted. See "Acceptance for
Payment of Shares and Payment of Purchase Price" in the Offer to Purchase. See
also Instruction 10 for a description of U.S. federal income and backup
withholding taxes which may also be required to be deducted from the Purchase
Price of Shares purchased pursuant to the Offer.
9. Special Payment and Delivery Instructions. If the check for the Purchase
Price of any Shares purchased is to be issued, or any Shares not tendered or not
purchased are to be returned, in the name of a person other than the person(s)
signing this Letter of Transmittal or if the check or any certificates for
Shares not tendered or not purchased are to be mailed to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal at an address other than that shown above, the appropriate
boxes on this Letter of Transmittal should be completed. Shareholders tendering
Shares by book-entry transfer may request that Shares not purchased be credited
to such account at the Book-Entry Transfer Facility as such shareholder may
designate under "Special Payment Instructions." See Instructions 1 and 7 for a
description of the circumstances under which the signature on this Letter of
Transmittal and other documents may be required to be guaranteed.
10. Federal Income Tax Withholding. Under federal income tax laws, the
Depositary is required to withhold 31% of the amount of any payments made
pursuant to the Offer unless certain requirements are satisfied. In order to
avoid such withholding, a tendering shareholder must complete the Substitute
Form W-9 set forth above and return it to the Depositary, unless the shareholder
is an "exempt recipient," (including, among others, all corporations and certain
foreign individuals). In order to satisfy the Depositary that a foreign
individual qualifies as an exempt recipient, such shareholder must submit a
statement, signed under penalties of perjury, attesting to that individual's
exempt status. Such statements can be obtained from the Depositary. For further
information concerning backup withholding and instructions for completing the
Substitute Form W-9 (including how to obtain a taxpayer identification number if
you do not have one and how to complete the Substitute Form W-9 if Shares are
held in more than one name), consult the enclosed Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9. If the Depositary is
not provided with the correct taxpayer identification number and the tendering
shareholder is not an exempt recipient, the shareholder may be subject to both
civil and criminal penalties, and payments that are made to such shareholder
pursuant to the Offer may be subject to backup withholding. See "Certain Federal
Income Tax Consequences" in the Offer to Purchase.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Shares to be deemed invalidly tendered, but may require the Depositary to
withhold 31% of the amount of any payments made pursuant to the Offer. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of a person 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.
In addition, in the case of a foreign shareholder who tenders Shares which
are purchased in the Offer, as described in "Certain Federal Income Tax
Consequences" in the Offer to Purchase, the Depositary will treat the gross
proceeds payable pursuant to the Offer as a dividend for federal income tax
purposes, and if neither a reduced rate of withholding is applicable pursuant to
a tax treaty nor an exemption from withholding is applicable because gross
proceeds paid pursuant to the Offer are effectively connected with the conduct
of a trade or business within the United States, the Depositary will be required
to withhold federal income tax at a rate of 30% from such gross proceeds paid to
a foreign shareholder or his agent. For this purpose, a foreign shareholder
generally is any shareholder that is not, under United States tax laws, (a) a
citizen or resident of the United States; (b) a corporation or partnership
created or organized in the United States or under the laws of the United States
or any State; (c) any trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States fiduciaries have the authority to control all substantial
decisions relating to the trust; or (d) any estate except an estate the income
of which, from sources outside the United States which is not effectively
connected with the conduct of a trade or business within the United States, is
not subject to U.S. income taxation.
<PAGE> 11
The Depositary will determine the applicable rate of withholding by reference to
a shareholder's address, except if facts and circumstances indicate such
reliance is not warranted or if applicable law (for example, an applicable tax
treaty or Treasury regulations thereunder) requires some other method for
determining a shareholder's residence. A foreign shareholder may be eligible to
file for a refund of such tax or a portion of such tax if the proceeds payable
pursuant to the Offer are entitled to sale or exchange treatment as described in
"Certain Federal Income Tax Consequences" in the Offer to Purchase or if the
shareholder is entitled to a reduced rate of withholding pursuant to a treaty
and the Depositary withheld at a higher rate. In order to claim an exemption
from withholding on the grounds that gross proceeds paid pursuant to the Offer
are effectively connected with the conduct of a trade or business within the
United States, a foreign shareholder must deliver to the Depositary a properly
executed Form 4224 claiming such exemption. Such Forms can be obtained from the
Depositary. FOREIGN SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS
REGARDING THE APPLICABILITY TO THEM OF THE FEDERAL INCOME TAX WITHHOLDING RULES,
INCLUDING THEIR ELIGIBILITY FOR A WITHHOLDING TAX REDUCTION OR EXEMPTION AND THE
PROCEDURES FOR OBTAINING A REFUND.
11. Irregularities. All questions as to the Purchase Price, number of
Shares accepted, the form of documents, and the validity, eligibility (including
time of receipt) and acceptance for payment of any tender of Shares will be
determined by the Company in its sole discretion, which determination shall be
final and binding on all parties. The Company reserves the absolute right to
reject any or all tenders of Shares it determines not to be in proper form or
the acceptance of which or payment for which may, in the opinion of the
Company's counsel, be unlawful. The Company also reserves the absolute right to
waive any of the conditions of the Offer and any defect or irregularity in the
tender of any particular Shares, and the Company's interpretations of the terms
of the Offer (including these instructions) will be final and binding on all
parties. No tender of Shares will be deemed to be properly made until all
defects and irregularities have been cured or waived. Unless waived, any defects
or irregularities in connection with tenders must be cured within such time as
the Company shall determine. None of the Company, the Dealer Manager, the
Depositary, the Information Agent (as the foregoing are defined in the Offer to
Purchase) or any other person is or will be obligated to give notice of any
defects or irregularities in tenders and none of them will incur any liability
for failure to give any such notice.
12. Lost, Destroyed or Stolen Certificates. If any certificate evidencing
Shares has been lost, destroyed, or stolen, the shareholder should promptly
notify the Information Agent. The shareholder will then be instructed as to the
steps that must be taken in order to replace such certificate. This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed, or stolen certificates have been followed.
13. Requests for Assistance or Additional Copies. Questions and requests
for assistance should 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, this Letter of Transmittal and other related
materials may be obtained from the Information Agent or brokers, dealers,
commercial banks, and trust companies.
THE INFORMATION AGENT FOR THE OFFER IS:
[MACKENZIE PARTNERS, INC. LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or Call Toll Free (800) 322-2885
THE DEALER MANAGER FOR THE OFFER:
J.P. MORGAN & CO.
60 Wall Street
New York, New York 10260
(212) 648-6234
<PAGE> 1
Exhibit (a)(3)
--------------
NOTICE OF GUARANTEED DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
TO TENDER CLASS A SHARES
OF
NACCO INDUSTRIES, INC.
PURSUANT TO ITS OFFER TO PURCHASE, DATED NOVEMBER 18, 1996
The attached form, or a form substantially equivalent to the attached form,
must be used to accept the Offer if certificates for shares of Class A Common
Stock, par value $1.00 per share, of NACCO Industries, Inc., and all other
documents required by the Letter of Transmittal cannot be delivered to the
Depositary by the expiration of the Offer or if procedures for book-entry
transfer cannot be completed by the expiration of the Offer. Such form may be
delivered by hand, facsimile transmission, or mailed to the Depositary. See "How
to Tender Shares" in the Offer to Purchase.
TO: FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS DEPOSITARY
<TABLE>
<S> <C> <C>
BY HAND:
First Chicago Trust Company of New York
ATTN: Tenders & Exchanges
C/O The Depository Trust Company
BY MAIL: 55 Water Street, DTC TAD BY OVERNIGHT COURIER:
Tenders & Exchanges Vietnam Veterans Memorial Plaza Tenders & Exchanges
P.O. Box 2559-Suite 4660 New York, NY 10041 14 Wall Street
Jersey City, New Jersey Suite 4680-8th Floor
07303-2559 BY FACSIMILE TRANSMISSION: New York, New York 10005
(201) 222-4720
or
(201) 222-4721
Confirm by Telephone:
(201) 222-4707
</TABLE>
Delivery of this Notice of Guaranteed Delivery to an address other than
those shown above or transmission of instructions via a facsimile number other
than those listed above does not constitute a valid delivery.
FOR THIS NOTICE OF GUARANTEED DELIVERY TO BE EFFECTIVE, IT MUST BE SIGNED
BY BOTH THE TENDERING SHAREHOLDER AND THE GUARANTOR.
THE OFFER, THE PRORATION PERIOD AND WITHDRAWAL RIGHTS
WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
<PAGE> 2
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION"
UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THAT SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to NACCO Industries, Inc. (the "Company"),
at the price per share indicated below, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Company's Offer to
Purchase, dated November 18, 1996 (the "Offer to Purchase"), and the related
Letter of Transmittal (which together constitute the "Offer"), receipt of which
is hereby acknowledged, the number (indicate below) of shares of Class A Common
Stock, par value $1.00 per share (the "Shares"), of the Company, pursuant to the
guaranteed delivery procedure set forth in "How to Tender Shares" in the Offer
to Purchase.
(SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL)
NUMBER OF SHARES BEING TENDERED HEREBY:
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
------------------------
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED, OR IF
NO BOX IS CHECKED, THERE IS NO VALID
TENDER OF SHARES.
SHARES TENDERED AT PRICE
DETERMINED BY DUTCH AUCTION
[ ] The undesigned wants to maximize the chance of having the Company
purchase all the Shares the undersigned is tendering (subject to the
possibility of proration). Accordingly, by checking this one box INSTEAD
OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders Shares
and is willing to accept the Purchase Price resulting from the Dutch
auction tender process. This action could result in receiving a price
per Share as low as $43.50 or as high as $50.00.
OR
SHARES TENDERED AT PRICE
DETERMINED BY SHAREHOLDER
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
[ ] $44.00 [ ] $45.00 [ ] $46.00 [ ] $47.00 [ ] $48.00 [ ] $49.00
[ ] $44.125 [ ] $45.125 [ ] $46.125 [ ] $47.125 [ ] $48.125 [ ] $49.125
[ ] $44.250 [ ] $45.250 [ ] $46.250 [ ] $47.250 [ ] $48.250 [ ] $49.250
[ ] $44.375 [ ] $45.375 [ ] $46.375 [ ] $47.375 [ ] $48.375 [ ] $49.375
[ ] $43.500 [ ] $44.500 [ ] $45.500 [ ] $46.500 [ ] $47.500 [ ] $48.500 [ ] $49.500
[ ] $43.625 [ ] $44.625 [ ] $45.625 [ ] $46.625 [ ] $47.625 [ ] $48.625 [ ] $49.625
[ ] $43.750 [ ] $44.750 [ ] $45.750 [ ] $46.750 [ ] $47.750 [ ] $48.750 [ ] $49.750
[ ] $43.875 [ ] $44.875 [ ] $45.875 [ ] $46.875 [ ] $47.875 [ ] $48.875 [ ] $49.875
[ ] $50.00
</TABLE>
2
<PAGE> 3
ODD LOTS
(SEE INSTRUCTION 6 OF THE LETTER OF TRANSMITTAL)
The undersigned either (check one box):
[ ] was the beneficial owner as of the close of business on November 13, 1996
of an aggregate of fewer than 100 Shares, all of which are being tendered,
or
[ ] is a broker, dealer, commercial bank, trust company or other nominee that
(i) is tendering, for the beneficial owners thereof, Shares with respect to
which it is the record owner, and (ii) believes, based upon representations
made to it by each such beneficial owner, that such beneficial owner owned
beneficially as of the close of business on November 13, 1996 an aggregate
of fewer than 100 Shares, and is tendering all of such Shares.
Number of Shares:...............................................................
Certificate Nos. (if available):
................................................................................
................................................................................
If Shares will be tendered by book-entry transfer:
Name of Tendering
Institutions:...................................................................
................................................................................
Account No......................................................................
[ ] The Depository Trust Company
SIGN HERE
................................................................................
................................................................................
SIGNATURE(S)
Dated: ..................................................................., 1996
Name(s) of Shareholders:
................................................................................
................................................................................
PLEASE TYPE OR PRINT
................................................................................
ADDRESS
................................................................................
ZIP CODE
................................................................................
AREA CODE AND TELEPHONE NO.
................................................................................
TAXPAYER ID NO. OR SOCIAL SECURITY NO.
3
<PAGE> 4
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a member of a registered national
securities exchange or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company having an office, branch or agency in the
United States, guarantees (a) that the above named person(s) "own(s)" the Shares
tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange
Act of 1934, as amended, (b) that such tender of Shares complies with Rule 14e-4
and (c) to deliver to the Depositary the Shares tendered hereby, together with a
properly completed and duly executed Letter of Transmittal (or copy thereof) or
an Agent's Message (as defined in the Offer to Purchase) and any other required
documents, all within three New York Stock Exchange, Inc. trading days of the
date hereof.
....................................
NAME OF FIRM
....................................
AUTHORIZED SIGNATURE
....................................
NAME
....................................
ADDRESS
....................................
ZIP CODE
Dated: ..............., 1996 ....................................
AREA CODE AND TELEPHONE NO.
DO NOT SEND STOCK CERTIFICATES WITH THIS FORM. YOUR STOCK CERTIFICATES MUST BE
SENT WITH THE LETTER OF TRANSMITTAL.
4
<PAGE> 1
Exhibit (a)(4)
--------------
NACCO INDUSTRIES, INC.
OFFER TO PURCHASE FOR CASH
UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK
AT A PURCHASE PRICE NOT GREATER
THAN $50.00 NOR LESS THAN $43.50 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996,
UNLESS THE OFFER IS EXTENDED.
November 18, 1996
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
NACCO Industries, Inc., a Delaware corporation (the "Company"), has
appointed us to act as Dealer Manager in connection with its offer to purchase
up to 800,000 shares of its Class A Common Stock, par value $1.00 per share (the
"Shares"), at prices not greater than $50.00 nor less than $43.50 per Share, net
to the seller in cash, specified by tendering shareholders, upon the terms and
subject to the conditions set forth in its Offer to Purchase, dated November 18,
1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer").
The Company will, upon the terms and subject to the conditions of the
Offer, determine a single per Share price (not greater than $50.00 nor less than
$43.50 per Share) that it will pay for Shares validly tendered pursuant to the
Offer (the "Purchase Price"), taking into account the number of Shares so
tendered and the prices specified by tendering shareholders. The Company will
select the lowest Purchase Price that will allow it to purchase all 800,000
Shares, or such lesser number of Shares as are validly tendered at prices not
greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer. Upon
the terms and subject to the conditions of the Offer, including the provisions
thereof relating to proration and "odd lot" tenders, the Company will purchase
all Shares validly tendered at prices at or below the Purchase Price and not
withdrawn. The Company expressly reserves the right, in its sole discretion, to
purchase up to an additional 2% of the outstanding Shares pursuant to the Offer
without the need to extend the Offer. See "Number of Shares; Proration" in the
Offer to Purchase.
If, prior to the Expiration Date (as defined in the Offer to Purchase),
more than 800,000 Shares are validly tendered and not withdrawn, the Company
will, upon the terms and subject to the conditions of the Offer, accept Shares
for purchase first from all Odd Lot Holders (as defined in the Offer to
Purchase) who validly tender all of their Shares at or below the Purchase Price
and do not withdraw any such Shares, and then on a pro rata basis from all other
shareholders whose Shares are validly tendered at or below the Purchase Price
and not withdrawn.
The Company also has outstanding Class B Common Stock, par value $1.00 per
share (the "Class B Shares"). Because of transfer restrictions, no trading
market has developed, or is expected to develop, for the Class B Shares. The
Class B Shares are not subject to the Offer; however, the Class B Shares are
convertible into Class A Shares on a one-for-one basis. If a shareholder holds
Class B Shares and would like to tender Class A Shares into the Offer, such
shareholder must first notify Key Shareholder Services, the transfer agent for
the Shares (the "Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer
Department, 1st Floor, Brooklyn, Ohio 44144, in writing, of its desire to
convert some or all of such shareholder's Class B Shares into Class A Shares,
and enclose share certificates representing the Class B Shares such
shareholder would like to so convert and executed stock powers with respect
to such certificates. See "How to Tender Shares -- Class B Shares" in the
Offer to Purchase for a discussion of factors a shareholder should consider
before deciding to convert Class B Shares into Class A Shares.
<PAGE> 2
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE
"CERTAIN CONDITIONS OF THE OFFER" IN THE OFFER TO PURCHASE.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY SHAREHOLDER WHETHER TO TENDER ALL OR ANY SHARES. THE COMPANY HAS BEEN
INFORMED THAT NO DIRECTOR, EXECUTIVE OFFICER, OR FAMILY SHAREHOLDER OF THE
COMPANY INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER
MUST MAKE HIS OR HER OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY
SHARES TO TENDER AND AT WHAT PRICE OR PRICES.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. Offer to Purchase, dated November 18, 1996;
2. Letter to Clients that 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;
3. Letter dated November 18, 1996 from Alfred M. Rankin, Jr.,
Chairman, President and Chief Executive Officer of the Company, to
shareholders of the Company;
4. Letter of Transmittal for your use and for the information of your
clients (together with accompanying Substitute Form W-9 and guidelines);
and
5. Notice of Guaranteed Delivery to be used to accept the Offer if the
Share certificates and all other required documents cannot be delivered to
the Depositary by the Expiration Date or if the procedure for book-entry
transfer cannot be completed on a timely basis.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER,
PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
No fees or commissions will be payable to brokers, dealers or any person
for soliciting tenders of Shares pursuant to the Offer other than fees paid to
the Dealer Manager, the Depositary and the Information Agent as described in
"Fees and Expenses" in the Offer to Purchase. The Company will, however, upon
request, reimburse you for customary mailing and handling expenses incurred by
you in forwarding any of the enclosed materials to the beneficial owners of
Shares held by you as a nominee or in a fiduciary capacity. The Company will pay
or cause to be paid any stock transfer taxes applicable to its purchase of
Shares, except as otherwise provided in Instruction 8 of the Letter of
Transmittal. See "Acceptance for Payment of Shares and Payment of Purchase
Price" in the Offer to Purchase.
In order to accept the Offer, a duly executed and properly completed Letter
of Transmittal and any other required documents should be sent to the Depositary
with either certificate(s) representing the tendered Shares or confirmation of
their book-entry transfer all in accordance with the instructions set forth in
the Letter of Transmittal and in "How to Tender Shares" in the Offer to
Purchase.
As described in "How to Tender Shares" in the Offer to Purchase, tenders of
Shares may be made without the concurrent deposit of stock certificates or
concurrent compliance with the procedure for book-entry transfer, if such
tenders are made by or through a broker or dealer which is a member firm of a
registered national securities exchange, or a member of the National Association
of Securities Dealers, Inc. or a commercial bank or trust company having an
office, branch or agency in the United States. Certificates for Shares so
tendered (or a confirmation of a book-entry transfer of such Shares into the
Depositary's account at the Book-Entry Transfer Facility described in the Offer
to Purchase), together with a properly completed and duly executed Letter of
Transmittal and any other documents required by the Letter of Transmittal, must
be received by the Depositary within three New York Stock Exchange trading days
after timely receipt by the
2
<PAGE> 3
Depositary of a properly completed and duly executed Notice of Guaranteed
Delivery. See "How to Tender Shares" in the Offer to Purchase.
Any inquiries you may have with respect to the Offer should be addressed to
us or the Information Agent at the respective addresses and telephone numbers
set forth on the back cover page of the Offer to Purchase.
Additional copies of the enclosed material may be obtained from MacKenzie
Partners, Inc., the Information Agent, telephone: (212) 929-5500 or (800)
322-2885.
Very truly yours,
J.P. MORGAN SECURITIES INC.
Enclosures
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL
CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF THE COMPANY OR ANY OF ITS
AFFILIATES, THE DEALER MANAGER, THE DEPOSITARY, OR THE INFORMATION AGENT, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
Exhibit (a)(5)
--------------
NACCO INDUSTRIES, INC.
OFFER TO PURCHASE FOR CASH
UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK
AT A PURCHASE PRICE NOT GREATER
THAN $50.00 NOR LESS THAN $43.50 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996,
UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated November
18, 1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer") and other materials relating to the Offer by
NACCO Industries, Inc., a Delaware corporation (the "Company"), to purchase up
to 800,000 shares of its Class A Common Stock, par value $1.00 per share (the
"Shares"), at prices not greater than $50.00 nor less than $43.50 per Share, net
to the seller in cash, specified by tendering shareholders, upon the terms and
subject to the conditions of the Offer.
The Company will, upon the terms and subject to the conditions of the
Offer, determine a single per Share price (not greater than $50.00 nor less than
$43.50 per Share) that it will pay for Shares validly tendered pursuant to the
Offer (the "Purchase Price"), taking into account the number of Shares so
tendered and the prices specified by tendering shareholders. The Company will
select the lowest Purchase Price that will allow it to purchase all 800,000
Shares, or such lesser number of Shares as are validly tendered at prices not
greater than $50.00 nor less than $43.50 per Share, pursuant to the Offer. Upon
the terms and subject to the conditions of the Offer, including the provisions
thereof relating to proration and "odd lot" tenders, the Company will purchase
all Shares validly tendered at prices at or below the Purchase Price and not
withdrawn. See "Number of Shares; Proration" in the Offer to Purchase.
If, prior to the Expiration Date (as defined in the Offer to Purchase),
more than 800,000 Shares are validly tendered and not withdrawn, the Company
will, upon the terms and subject to the conditions of the Offer, accept Shares
for purchase first from all Odd Lot Holders (as defined in the Offer to
Purchase) who validly tender all of their Shares at or below the Purchase Price
and do not withdraw any such Shares, and then on a pro rata basis from all other
shareholders whose Shares are validly tendered at or below the Purchase Price
and not withdrawn.
The Company also has outstanding Class B Common Stock, par value $1.00 per
share (the "Class B Shares"). Because of transfer restrictions, no trading
market has developed, or is expected to develop, for the Class B Shares. The
Class B Shares are not subject to the Offer; however, the Class B Shares are
convertible into Class A Shares on a one-for-one basis. If you hold Class B
Shares and would like to tender Class A Shares into the Offer, you must first
notify Key Shareholder Services, the transfer agent for the Shares (the
"Transfer Agent"), at 4900 Tiedeman Road, Stock Transfer Department, 1st Floor,
Brooklyn, Ohio 44144, in writing, of your desire to convert some or all of your
Class B Shares into Class A Shares, and enclose share certificates representing
the Class B Shares you would like to so convert and executed stock powers with
respect to such certificates. See "How to Tender Shares -- Class B Shares" in
the Offer to Purchase and item 6 below for a discussion of factors you should
consider before deciding to convert your Class B Shares into Class A Shares.
We are the holder of record of Shares held for your account. As such, we
are the only ones who can tender your Shares, and then only pursuant to your
instructions. We are sending you the Letter of Transmittal for your information
only; you cannot use it to tender Shares we hold for your account.
Please instruct us on the attached instruction form as to whether you wish
us to tender any or all of the Shares we hold for your account on the terms and
subject to the conditions of the Offer.
<PAGE> 2
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE
"CERTAIN CONDITIONS OF THE OFFER" IN THE OFFER TO PURCHASE.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY SHAREHOLDER WHETHER TO TENDER ALL OR ANY SHARES. THE COMPANY HAS BEEN
INFORMED THAT NO DIRECTOR, EXECUTIVE OFFICER, OR FAMILY SHAREHOLDER OF THE
COMPANY INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER
MUST MAKE HIS OR HER OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY
SHARES TO TENDER AND AT WHAT PRICE OR PRICES.
We call your attention to the following:
1. The Offer is not conditioned upon any minimum number of Shares
being tendered. The Offer is, however, subject to other conditions. See
"Certain Conditions of the Offer" in the Offer to Purchase.
2. The Offer, proration period, and withdrawal rights will expire at
12:00 midnight, New York City time, on Monday, December 16, 1996, unless
the Company extends the Offer.
3. You may tender Shares at prices, net to you in cash, not greater
than $50.00 nor less than $43.50 per Share, as indicated in the attached
instruction form.
4. The proration provisions applicable to the Offer are described
below and in "Number of Shares; Proration" in the Offer to Purchase.
5. The Offer is for 800,000 Shares, constituting approximately 11.0%
of the Shares outstanding as of November 13, 1996. The Company expressly
reserves the right, in its sole discretion, to purchase up to an additional
2% of the outstanding Shares pursuant to the Offer without the need to
extend the Offer.
6. The Company also has outstanding the Class B Shares. Because of
transfer restrictions, no trading market has developed, or is expected to
develop, for the Class B Shares. The Class B Shares are not subject to the
Offer; however, the Class B Shares are convertible into Class A Shares on a
one-for-one basis. If you hold Class B Shares and would like to tender
Class A Shares into the Offer, you must first notify the Transfer Agent, at
4900 Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio
44144, in writing, of your desire to convert some or all of your Class B
Shares into Class A Shares, and enclose share certificates representing the
Class B Shares you would like to so convert and executed stock powers with
respect to such certificates. Please note that you should allow 10 to 14
business days for such conversion and that share certificates representing
tendered Shares must be received by the Depositary by the Expiration Date,
or up to three NYSE trading days thereafter if you follow the procedures
for guaranteed delivery set forth above. In considering whether you should
convert Class B Shares into Class A Shares in order to tender Class A
Shares into the Offer, please note that: (i) each Class B Share is entitled
to ten votes per share while each Class A Share is entitled to only one
vote per Share; (ii) once you convert your Class B Shares into Class A
Shares and tender such Shares into the Offer you cannot convert your Class
A Shares back into Class B Shares in the event that such Class A Shares are
not purchased in the Offer; (iii) you may not have any such Class A Shares
purchased in the Offer because the price specified by you may exceed the
Purchase Price; and (iv) some portion of the Class A Shares that you tender
into the Offer may not be purchased pursuant to the Offer due to proration.
See "How to Tender Shares -- Class B Shares" in the Offer to Purchase.
7. You will not be obligated to pay any brokerage commissions,
solicitation fees or, subject to Instruction 8 of the Letter of
Transmittal, stock transfer taxes on the Company's purchase of your Shares
pursuant to the Offer.
8. If you owned beneficially as of the close of business on November
13, 1996 an aggregate of fewer than 100 Shares and you instruct us to
tender on your behalf all such Shares at or below the Purchase Price and do
not withdraw any of such Shares before the Expiration Date and check the
box captioned "Odd Lots" in the attached instruction form, the Company,
upon the terms and subject to the conditions
2
<PAGE> 3
of the Offer, will accept all such Shares for purchase before proration, if
any, of the purchase of other Shares tendered and not withdrawn at or below
the Purchase Price. See "Tender by Holders of Fewer Than 100 Shares" in the
Offer to Purchase.
9. If you wish to tender portions of your Share holdings at different
prices, you must complete separate instructions for each price at which you
wish to tender each such portion of your Shares. We must submit separate
Letters of Transmittal on your behalf for each price you will accept.
As described in "Number of Shares; Proration" in the Offer to Purchase, if
before the Expiration Date a greater number of Shares is properly tendered at or
below the Purchase Price and not withdrawn than the Company will accept for
purchase, the Company will accept Shares for purchase at the Purchase Price in
the following order of priority:
(a) first, all Shares properly tendered at or below the Purchase Price
and not withdrawn before the Expiration Date by any Odd Lot Holder who:
(1) tenders all Shares beneficially owned by such Odd Lot Holder at
or below the Purchase Price and does not withdraw any such Shares before
the Expiration Date (partial tenders will not qualify for this
preference); and
(2) completes the box captioned "Odd Lots" on the Letter of
Transmittal and, if applicable, on the Notice of Guaranteed Delivery;
and
(b) then, after the purchase of all of the Shares of such Odd Lot
Holders, all other Shares validly tendered at or below the Purchase Price
and not withdrawn before the Expiration Date on a pro rata basis, if
necessary (with appropriate adjustments to avoid purchases of fractional
Shares), as provided in the Offer to Purchase.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the attached instruction form.
An envelope to return your instructions to us is enclosed. If you authorize us
to tender your Shares, we will tender all such Shares unless you specify
otherwise on the attached instruction form.
YOUR INSTRUCTION FORM SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US
TO SUBMIT A LETTER OF TRANSMITTAL ON YOUR BEHALF ON OR BEFORE THE EXPIRATION OF
THE OFFER. THE OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE COMPANY
EXTENDS THE OFFER.
The Company is not making the Offer to, nor will it accept tenders from or
on behalf of, owners of Shares in any jurisdiction in which the Offer or its
acceptance would violate the securities or, Blue Sky laws of such jurisdiction.
In any jurisdiction in which the securities or Blue Sky laws require the Offer
to be made by a licensed broker or dealer, the Offer is being made on the
Company's behalf by the Dealer Manager or one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
3
<PAGE> 4
INSTRUCTION FORM
WITH RESPECT TO THE
NACCO INDUSTRIES, INC.
OFFER TO PURCHASE FOR CASH
UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK
AT A PURCHASE PRICE PER SHARE NOT GREATER
THAN $50.00 NOR LESS THAN $43.50 PER SHARE
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase, dated November 18, 1996, (the "Offer to Purchase") and the
related Letter of Transmittal (which together constitute the "Offer"), in
connection with the Offer by NACCO Industries, Inc., a Delaware corporation (the
"Company"), to purchase up to 800,000 shares of its Class A Common Stock, par
value $1.00 per share (the "Shares"), at prices not greater than $50.00 nor less
than $43.50 per Share, net to the seller in cash, specified by tendering
shareholders, upon the terms and subject to the conditions of the Offer.
The undersigned acknowledges that the Company will, upon the terms and
subject to the conditions of the Offer, including the provisions thereof
relating to proration and "odd lot" tenders, (i) determine a single per Share
price not greater than $50.00 nor less than $43.50 per Share that it will pay
for Shares validly tendered pursuant to the Offer (the "Purchase Price"), taking
into account the number of Shares so tendered and the prices specified by
tendering shareholders; (ii) select the lowest Purchase Price that will allow it
to purchase all 800,000 Shares, or such lesser number of Shares as are validly
tendered at prices not greater than $50.00 nor less than $43.50 per Share,
pursuant to the Offer; (iii) purchase all Shares validly tendered at prices at
or below the Purchase Price and not withdrawn; and (iv) return all other Shares.
The undersigned acknowledges that in accordance with the terms of this Offer,
including the provisions thereof relating to proration, the Company may not
purchase all shares validly tendered at prices at or below the Purchase Price
and not withdrawn. The undersigned further acknowledges that the Company may
purchase up to an additional 2% of the outstanding Shares without the need to
extend the Offer. See "Number of Shares; Proration" in the Offer to Purchase.
The undersigned hereby instruct(s) you to tender to the Company the number
of Shares indicated below or, if no number is indicated, all Shares you hold for
the account of the undersigned, at the price per Share indicated below, pursuant
to the terms and subject to the conditions of the Offer. The Company will return
Shares tendered at prices greater than the Purchase Price and Shares not
purchased because of proration.
4
<PAGE> 5
AGGREGATE NUMBER OF SHARES TO BE TENDERED BY YOU FOR
THE ACCOUNT OF THE UNDERSIGNED:*
____________ SHARES
- ---------------
* Unless otherwise indicated, all of the Shares held for the account of the
undersigned will be tendered.
ODD LOTS
[ ] By checking this box, the undersigned represents that the undersigned owned
beneficially as of the close of business on November 13, 1996 an aggregate
of fewer than 100 Shares and is instructing the holder to tender all such
Shares.
In addition, the undersigned is tendering Shares (check one box):
[ ] at the Purchase Price (as defined below), as the same shall be determined by
the Company in accordance with the terms of the Offer (persons checking this
box need not indicate the price per Share below);
or
[ ] at the price per Share indicated below under "Price (in Dollars) Per Share
at which Shares are Being Tendered."
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
(SEE INSTRUCTION 5 TO LETTER OF TRANSMITTAL)
------------------------
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED, OR IF
NO BOX IS CHECKED, THERE IS NO VALID
TENDER OF SHARES.
SHARES TENDERED AT PRICE
DETERMINED BY DUTCH AUCTION
[ ] The undesigned wants to maximize the chance of having the Company
purchase all the Shares the undersigned is tendering (subject to the
possibility of proration). Accordingly, by checking this one box INSTEAD
OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders Shares
and is willing to accept the Purchase Price resulting from the Dutch
auction tender process. This action could result in receiving a price
per Share as low as $43.50 or as high as $50.00.
OR
SHARES TENDERED AT PRICE
DETERMINED BY SHAREHOLDER
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
[ ] $44.00 [ ] $45.00 [ ] $46.00 [ ] $47.00 [ ] $48.00 [ ] $49.00
[ ] $44.125 [ ] $45.125 [ ] $46.125 [ ] $47.125 [ ] $48.125 [ ] $49.125
[ ] $44.250 [ ] $45.250 [ ] $46.250 [ ] $47.250 [ ] $48.250 [ ] $49.250
[ ] $44.375 [ ] $45.375 [ ] $46.375 [ ] $47.375 [ ] $48.375 [ ] $49.375
[ ] $43.500 [ ] $44.500 [ ] $45.500 [ ] $46.500 [ ] $47.500 [ ] $48.500 [ ] $49.500
[ ] $43.625 [ ] $44.625 [ ] $45.625 [ ] $46.625 [ ] $47.625 [ ] $48.625 [ ] $49.625
[ ] $43.750 [ ] $44.750 [ ] $45.750 [ ] $46.750 [ ] $47.750 [ ] $48.750 [ ] $49.750
[ ] $43.875 [ ] $44.875 [ ] $45.875 [ ] $46.875 [ ] $47.875 [ ] $48.875 [ ] $49.875
[ ] $50.00
</TABLE>
5
<PAGE> 6
SIGNATURE BOX
Signature(s)
-------------------------------------------------------------------
Dated , 1996
--------------------------------------------------------------------
Name(s) and Address(es)
--------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print)
Area Code and Telephone Number
-------------------------------------------------
Taxpayer Identification or
Social Security Number
---------------------------------------------------------
6
<PAGE> 1
Exhibit (a)(6)
--------------
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.,
000-00-000. 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>
<S> <C> <C> <C>
- ----------------------------------------------------------- ---------------------------------------------------------
GIVE THE GIVE THE EMPLOYER
SOCIAL SECURITY IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF-- FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ----------------------------------------------------------- ---------------------------------------------------------
1. Individual The individual 6. Sole proprietorship The owner(3)
2. Two or more individuals The actual owner 7. A valid trust, estate, The legal entity (Do
(joint account) of the account or, or pension trust not furnish the
if combined funds, identifying number
any one of the of the personal
individuals(1) representative or
3. Custodian account of a minor The minor(2) trustee unless the
(Uniform Gift to Minors Act) legal entity itself
4. a. The usual revocable savings The grantor- is not designated in
trust account (grantor is trustee(1) the account
also trustee) title.)(4)
b. So-called trust account that The actual owner(1) 8. Corporate The corporation
is not a legal or valid trust 9. Association, club, The organization
under State law religious, charitable,
5. Sole proprietorship The owner(3) educational or other
tax-exempt
organization
10. Partnership The partnership
11. A broker or registered nominee The broker or
nominee
12. Account with the Department The public entity
of Agriculture in the name of
a public entity (such as a
state or local government,
school district or prison)
that receives agricultural
program payments
- ----------------------------------------------------------- ---------------------------------------------------------
[/FN]
(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) Show the name of the owner.
(4) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is one name, the number will be
considered to be that of the first name listed.
</TABLE>
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
Section references are to the Internal Revenue Code.
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 (the "IRS" and
apply for a number.)
PAYEES EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from backup withholding and for which
no information reporting is required. For interest and dividends, all listed
payees are exempt except item (9). For broker transactions, payees listed in (1)
through (13) and a person registered under the Investment Advisers Act of 1940
who regularly acts as a broker are exempt. Payments subject to reporting under
sections 6041 and 6041A are generally exempt from backup withholding only if
made to payees described in items (1) through (7), except that a corporation
that provides medical and health care services or bills and collects payments
for such services is not exempt from backup withholding or information
reporting. Only payees described in items (2) through (6) are exempt from backup
withholding for barter exchange transactions, patronage dividends, and payments
by certain fishing boat operators.
(1) A corporation.
(2) An organization exempt from tax under section 501(a), or an individual
retirement plan ("IRA"), or a custodial account under 403(b)(7).
(3) The United States or any of its agencies or instrumentalities.
(4) A State, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or
instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the United
States or a possession of the United States.
(9) A futures commission merchant registered with the Commodity Futures
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the
Investment Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
Payments of dividends and patronage dividends generally not subject to backup
withholding also 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 United
States and that have at least one nonresident partner.
- Payments of patronage dividends not paid in money.
- Payments made by certain foreign organizations.
Payments of interest generally not subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you have
not provided your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt interest dividends under
section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details see sections 6041, 6041(A)(a), 6042, 6044, 6045,
6049, 6050A and 6050N, and the regulations under such sections.
PRIVACY ACT NOTICE
Section 6109 requires you to give your correct taxpayer identification number to
persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid, the
acquisition or abandonment of secured property, cancellation of debt, or
contributions you made to an IRA. The IRS uses the numbers for identification
purposes and to help verify the accuracy of your tax return. You must provide
your taxpayer identification number whether or not you are qualified 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) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you
make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
(3) 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.
<PAGE> 1
Exhibit (a)(7)
--------------
November 18, 1996
To Holders of Our Class A Common Stock:
As you may be aware, we are offering to purchase up to 800,000 shares of
our Class A Common Stock, par value $1.00 per share (the "Shares"), from our
shareholders at a price not greater than $50.00 nor less than $43.50 per Share
(the "Offer"). We are conducting the Offer through a procedure commonly referred
to as a "Dutch Auction." This procedure allows you to select the price within
the stated price range at which you are willing to sell your Shares to the
Company. Based upon the number of Shares tendered and the prices specified by
tendering shareholders, we will determine the lowest per Share price (the
"Purchase Price") within that price range that will allow us to buy all 800,000
Shares, or such lesser number of Shares as are validly tendered at or below the
Purchase Price. We expressly reserve the right, in our sole discretion, to
purchase up to an additional 2% of the outstanding Shares pursuant to the Offer
without the need to extend the Offer. If more than 800,000 Shares are tendered
at or below the Purchase Price, only a pro rata portion will be purchased.
Payment to selling shareholders will be made in cash without deduction for any
commissions, fees or, except in certain circumstances described in the Offer to
Purchase, transfer taxes. All shares which are tendered and not purchased will
be promptly returned to the tendering shareholder.
The Offer is explained in detail in the enclosed Offer to Purchase and
related Letter of Transmittal. If you want to tender your Shares, the
instructions for tendering are also set forth in detail in the enclosed
materials. I encourage you to read these materials carefully before making any
decision with respect to the Offer.
Our Class B Common Stock, par value $1.00 per share (the "Class B Shares"),
is not subject to the Offer; however, the Class B Shares may be converted into
Class A Shares on a one-for-one basis and then tendered into the Offer. Before
deciding to convert your Class B Shares into Class A Shares, please carefully
read "How To Tender Shares -- Class B Shares" in the Offer to Purchase.
THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE
"CERTAIN CONDITIONS OF THE OFFER."
NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO
WHETHER OR NOT TO TENDER SHARES. YOU MUST MAKE YOUR OWN DECISION WHETHER TO
TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHAT PRICE OR PRICES.
WE HAVE BEEN INFORMED BY SUCH PERSONS THAT NONE OF OUR DIRECTORS, EXECUTIVE
OFFICERS, OR FAMILY SHAREHOLDERS (AS DEFINED IN THE OFFER TO PURCHASE) INTENDS
TO TENDER ANY SHARES PURSUANT TO THE OFFER.
Please note that the Offer will expire at 12:00 midnight, New York City
time, on Monday, December 16, 1996, unless it is extended. Should you have
questions regarding this Offer, please call MacKenzie Partners, Inc., the
Information Agent, at (212) 929-5500 or (800) 322-2885.
Sincerely,
/s/ Alfred M. Rankin, Jr.
<PAGE> 1
Exhibit (a)(8)
--------------
NEWS RELEASE [NACCO INDUSTRIES, INC. LETTERHEAD]
FOR IMMEDIATE RELEASE
NOVEMBER 15, 1996
-----------------
NACCO INDUSTRIES, INC.
ANNOUNCES COMMENCEMENT OF "DUTCH AUCTION" TENDER OFFER
FOR UP TO 800,000 SHARES OF ITS CLASS A COMMON STOCK
----------------------------------------------------
Mayfield Heights, Ohio, November 15, 1996: NACCO Industries, Inc. (NC-NYSE)
announced today that it will commence a "Dutch Auction" tender offer on Monday,
November 18, 1996 for the purchase by the Company of up to 800,000 shares of its
Class A Common Stock, par value $1.00 per share. The Company's Class B Common
Stock is not subject to the Offer. The purchase price for each share of Class A
Common Stock will be not greater than $50.00 nor less than $43.50 per Share, net
to the seller in cash, specified by tendering shareholders, upon the terms and
subject to the conditions of the Offer. The Company will select the lowest
purchase price that will allow it to purchase all 800,000 Shares, or such lesser
number of Shares as are validly tendered at prices not greater than $50.00 nor
less than $43.50 per Share, pursuant to the Offer. The Offer, proration period,
and withdrawal rights will expire at 12:00 midnight, New York City time, on
Monday, December 16, 1996, or such later time as the Company shall extend the
Offer. The number of Shares subject to the Offer represents approximately 11
percent of the outstanding Class A Common Stock. The Company expressly reserves
the right, at its sole discretion, to purchase up to an additional two percent
of the outstanding Class A Common Stock pursuant to the Offer without the need
to extend the Offer.
The Board of Directors today authorized the Company to purchase up to 700,000
additional Shares of Class A Common Stock pursuant to an open market share
repurchase program that it expects to implement following the expiration of the
Offer over the next two fiscal years. The aggregate 1.5 million Shares to be
purchased in the Offer and the open market repurchase program constitutes 21
percent of the outstanding Class A Common Stock.
Neither the Company nor its Board of Directors makes any recommendation to any
shareholder whether to tender all or any shares. The Company has been informed
that no director, executive officer or family member affiliated with them
intends to tender any Shares pursuant to the Offer. Each shareholder must make
his or her own decision whether to tender Shares and, if so, how many Shares to
tender and at what price or prices.
At a meeting held today, the Board of Directors of the Company has authorized
the Offer because it believes that the purchase of Shares pursuant to the Offer
constitutes a prudent use of the Company's financial resources, given its
business profile, assets, and prospects and to afford those shareholders who
desire liquidity an opportunity to sell all or a portion of their Shares without
the usual transaction costs
<PAGE> 2
associated with open market sales. If tendering shareholders are considering the
sale of all or a portion of their Shares, the Offer also gives tendering
shareholders the opportunity to determine the minimum price at which they are
willing to sell their Shares. The Offer may also give tendering shareholders the
opportunity to sell Shares at prices greater than the market price of the Shares
prevailing before the Company announced the Offer.
On November 13, 1996, the Board of Directors declared a dividend of 18.75 cents
per share on both the Class A and Class B Shares, payable to shareholders of
record as of December 2, 1996. Because Shares tendered pursuant to the Offer
will not be accepted for payment prior to December 16, 1996, a shareholder who
was the holder of record of Class A Shares on December 2, 1996 who tenders such
Shares into the Offer will be entitled to receive the dividend on such Shares.
Copies of the Offer to Purchase and Letter of Transmittal will be mailed
beginning on Monday, November 18, 1996 to all holders of Class A Common Stock,
as reflected on the records of the transfer agent for the Shares as of November
13, 1996. The Offer is explained in detail in these materials. Shareholders are
urged to carefully read these materials before making any decision with respect
to the Offer. J.P. Morgan Securities Inc. is acting as the Dealer Manager, First
Chicago Trust Company of New York is acting as the Depositary and MacKenzie
Partners, Inc. is acting as the Information Agent with respect to the Offer.
Copies of the Offer to Purchase and the Letter of Transmittal may be obtained
from the Information Agent at (800) 322-2885 and will be furnished promptly at
the Company's expense. Questions or requests for assistance may be directed to
the Information Agent at the above number or the Dealer Manager at (212)
648-6234.
NACCO Industries, Inc. is a holding company with four operating subsidiaries.
The North American Coal Corporation mines and markets lignite primarily as fuel
for power generation by electric utilities. NACCO Materials Handling Group, Inc.
is a world leader in the design and manufacture of forklift trucks marketed
under the Hyster(R) and Yale(R) brand names. Hamilton Beach * Proctor-Silex,
Inc. is a leading manufacturer of small electric appliances. The Kitchen
Collection, Inc. is a national specialty retailer of kitchenware and small
electric appliances.
# # #
FOR FURTHER INFORMATION, CONTACT:
NACCO Industries, Inc.
Frank B. O'Brien
Senior Vice President - Corporate
Development and Chief Financial Officer
216/449-9680
- -or-
NACCO Industries, Inc.
Brian S. Kenyon
Manager Shareholder Relations
and External Reporting
216/449-9676
2
<PAGE> 1
Exhibit (a)(9)
--------------
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell the Shares. The Offer is made solely by the Offer to Purchase, dated
November 18, 1996, and the related Letter of Transmittal, and is not being made
to, nor will tenders be accepted from or on behalf of, holders of the Shares in
any jurisdiction in which the making or acceptance thereof would not be in
compliance with the laws of such jurisdiction. In any jurisdiction the
securities laws of which require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed made on behalf of the Company by the Dealer
Manager or one or more brokers or dealers licensed under the laws of such
jurisdiction.
OFFER TO PURCHASE FOR CASH UP TO 800,000 SHARES OF CLASS A COMMON STOCK AT A
PRICE OF NOT GREATER THAN $50.00 NOR LESS THAN $43.50 PER SHARE BY NACCO
INDUSTRIES, INC.
NACCO Industries, Inc., a Delaware corporation ("we," "us," or "our" below), is
offering to purchase for cash up to 800,000 shares of our Class A Common Stock,
par value $1.00 per share (the "Class A Shares" or the "Shares"), upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated November
18, 1996 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which together constitute the "Offer"). We are inviting our shareholders to
tender their Shares at prices specified by such shareholders, not greater than
$50.00 nor less than $43.50 per Share, upon the terms and subject to the
conditions set forth in the Offer. Based upon the number of Shares tendered and
the prices specified by tendering shareholders, we will select a single purchase
price per Share (the "Purchase Price") which will be not greater than $50.00 nor
less than $43.50 per Share that we will pay for Shares properly tendered and not
withdrawn pursuant to the Offer. We will select the lowest Purchase Price which
will enable us to purchase all 800,000 Shares, or such lesser number of Shares
as are properly tendered at prices not greater than $50.00 nor less than $43.50
per Share, pursuant to the Offer. All Shares tendered at or below the Purchase
Price will be purchased at the Purchase Price, subject to the terms and
conditions of the Offer, including the proration and "odd lot" provisions
described herein. The Purchase Price will be paid in cash, net to the seller,
with respect to all Shares purchased. Shares tendered at prices in excess of the
Purchase Price and Shares not purchased because of proration will be returned.
Tendering shareholders will not be obligated to pay brokerage commissions,
solicitation fees or, subject to Instruction 8 of the Letter of Transmittal,
stock transfer taxes on our purchase of Shares pursuant to the Offer. If the
number of Shares validly tendered at or below the Purchase Price and not
withdrawn prior to the Expiration Date (as defined below) (the "Eligible
Shares") exceeds the number of Shares to be purchased pursuant to the Offer,
then we will select the Shares to be purchased from the Eligible Shares on a pro
rata basis after purchase of all Shares from Odd Lot Holders (as defined below).
The Offer will expire at 12:00 midnight, New York City time, on Monday, December
16, 1996 (as may be extended in accordance with the terms of the Offer, the
"Expiration Date"), unless we exercise our right, in our sole discretion, to
extend the Offer at any time or from time to time by oral or written notice to
the Depositary (as defined in the Offer to Purchase). We expressly reserve the
right, in our sole discretion, to purchase up to an additional 2% of the
outstanding Shares pursuant to the Offer without the need to extend the Offer.
We also have outstanding Class B Common Stock, par value $1.00 per share (the
"Class B Shares"). Because of transfer restrictions, no trading market has
developed, or is expected to develop, for the Class B Shares. The Class B Shares
are not subject to the Offer; however, the Class B Shares are convertible into
Class A Shares on a one-for-one basis. If you hold Class B Shares and would like
to tender Class A Shares into the Offer, you must first notify Key Shareholder
Services, the transfer agent for the Shares (the "Transfer Agent"), at 4900
Tiedeman Road, Stock Transfer Department, 1st Floor, Brooklyn, Ohio 44144, in
writing, of your desire to convert some or all of your Class B Shares into Class
A Shares, and enclose certificates representing the Class B Shares you would
like to so convert and executed stock powers with respect to such certificates.
See "How to Tender Shares--Class B Shares" in the Offer to Purchase for a
discussion of factors you should consider before deciding to convert your Class
B Shares into Class A Shares. Please note that you should allow 10-14 business
days for such conversion and that share certificates representing tendered
Shares must be received by the Depositary by the Expiration Date, or up to three
NYSE trading days thereafter if you follow the procedures for guaranteed
delivery set forth in the Offer. The Offer is not conditioned upon any minimum
number of Shares being tendered. The Offer is, however, subject to certain other
conditions.
Upon the terms and subject to the conditions of the Offer, in the event that
prior to the Expiration Date a greater number of Shares is properly tendered,
and not withdrawn, at prices at or below the Purchase Price than will be
accepted by us for purchase pursuant to the Offer, we will accept the Shares to
be purchased in the following order of priority: (i) all Shares properly
tendered at or below the Purchase Price and not withdrawn before the Expiration
Date by any shareholder who holds less than 100 Shares as of the close of
business on November 13, 1996 ("Odd Lot Holder") and tenders all of his Shares
and does not withdraw any such Shares, (ii) all other Shares properly tendered
at or below the Purchase Price and not withdrawn before the Expiration Date on a
pro rata basis (with appropriate adjustments to avoid purchases of fractional
Shares). Tenders of Shares made pursuant to the Offer may be withdrawn at any
time prior to the Expiration Date. Thereafter, such tenders are irrevocable,
except that Shares tendered may be withdrawn at any time after 40 business days
from the commencement of the Offer unless theretofore accepted for payment by us
as provided in the Offer to Purchase. To be effective, a written, telegraphic,
telex, or facsimile transmission notice of withdrawal must be received in a
timely manner by the Depositary at one of its addresses set forth in the Offer
to Purchase and must specify the name of the person who tendered the Shares to
be withdrawn and the number of Shares to be withdrawn and the name of the
registered holders of the Shares if different from the person who tendered the
Shares. If the Shares to be withdrawn have been delivered to the Depositary, a
signed notice of withdrawal with (except in the case of Shares tendered by an
Eligible Institution (as defined in the Offer to Purchase)) signatures
guaranteed by an Eligible Institution must be submitted prior to the release of
such Shares. In addition, such notice must specify, in the case of Shares
tendered by delivery of certificates, the name of the registered holder (if
different from that of the tendering shareholder) and the serial numbers shown
on the particular certificates evidencing the Shares to be withdrawn or, in the
case of Shares tendered by book-entry transfer, the name and number of the
account at the Book-Entry Transfer Facility (as defined in the Offer to
Purchase) to be credited with the withdrawn Shares. We are making the Offer (i)
because our Board of Directors believes that the purchase of Shares pursuant to
the Offer constitutes a prudent use of our financial resources, given our
business profile, assets, and prospects and (ii) to afford those shareholders
who desire liquidity an opportunity to sell all or a portion of their Shares
without the usual transaction costs associated with open market sales. This
opportunity to sell Shares without paying any brokerage fee may be particularly
valuable to smaller shareholders, for whom such fees may be relatively high. Odd
Lot Holders who tender into the Offer will realize additional transactional
savings by avoiding any applicable "odd lot" discount payable on a sale of
Shares. If you are considering the sale of all or a portion of your Shares, the
Offer also gives you the opportunity to determine the minimum price at which you
are willing to sell your Shares. The Offer may also give you the opportunity to
sell Shares
<PAGE> 2
at prices greater than the market price of the Shares prevailing before we
announced the Offer. Shareholders who do not tender Shares or whose Shares are
not purchased in the Offer will have a proportionate increase in their ownership
interest in us. Our purchase of Shares pursuant to the Offer will reduce the
number of Shares that are available to be publicly traded on the NYSE, and is
likely to reduce the number of shareholders. Nonetheless, we anticipate that
there will be enough shareholders and sufficient publicly available Shares
following the Offer to provide a reasonably liquid trading market for them.
However, we can make no assurances that sufficient publicly traded Shares will
be available following the Offer to provide a reasonably liquid trading market.
Neither we nor our Board of Directors makes any recommendation to you as to
whether or not to tender Shares. You must make your own decision whether to
tender Shares and, if so, how many Shares to tender and at what price or prices.
We have been informed by such persons that none of our directors, executive
officers, or Family Shareholders (as defined in the Offer to Purchase) intends
to tender any Shares pursuant to the Offer. The information required to be
disclosed by Rule 13e-4(d)(1) of the General Rules and Regulations under the
Securities Exchange Act of 1934 is contained in the Offer to Purchase and is
incorporated herein by reference. Copies of the Offer to Purchase and Letter of
Transmittal are being mailed commencing today to all holders of the Class A
Shares, as reflected on the records of the Transfer Agent as of November 13,
1996. The Offer is explained in detail in these materials. Shareholders are
urged to carefully read these materials before making any decision with respect
to the Offer. Additional copies of the Offer to Purchase and Letter of
Transmittal may be obtained from the Information Agent at the address and
telephone number set forth below and will be furnished promptly at our expense.
Questions or requests for assistance may be directed to the Information Agent or
the Dealer Manager at their respective addresses and telephone numbers set forth
below. Shareholders may also contact their broker, dealer, commercial bank, or
trust company for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[GRAPHIC]
156 Fifth Avenue New York, New York 10010
(800) 322-2885 (toll free)
(212) 929-5500 (call collect)
THE DEALER MANAGER FOR THE OFFER IS:
J. P. MORGAN & CO. 60 Wall Street Mail Stop 27MA
New York, New York 10260
(212) 648-6234
November 18, 1996
THE OFFER, PRORATION PERIOD, AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE
OFFER IS EXTENDED.
<PAGE> 1
EXHIBIT (d)
November 18, 1996
NACCO Industries, Inc.
5875 Landerbrook Drive
Mayfield Heights, OH 44124-4017
Gentlemen:
You have requested our opinion regarding the applicability of Section
305(c) of the Internal Revenue Code of 1986, as amended ("Code"), to
shareholders of NACCO Industries, Inc. (the "Company") who do not terminate
their stock interest in the Company pursuant to the Company's Offer to Purchase
for Cash Up to 800,000 Shares of Its Class A Common Stock, dated November 18,
1996 (the "Offer") or in the course of making a sale of their Shares in the open
market during the period in which the Open Market Repurchase Program (as
hereinafter defined) is in effect. Capitalized terms used below which are not
defined herein have the same meaning as in the Offer.
For purposes of this opinion, we have examined the Offer, as well as such
other documents, records and matters of law as in our judgment we deemed
necessary or appropriate. In rendering this opinion, we have relied upon the
description of facts contained in the Offer. In addition, you have advised us
that for purposes of this opinion:
(1) The Company will purchase up to 800,000 Shares pursuant to the Offer
(the "Issuer Self-Tender Transaction") and up to an additional 700,000
Shares in the open market during the two fiscal year period following
the date on which the Issuer Self-Tender Transaction is completed (the
"Open Market Repurchase Program"; and collectively with the Issuer
Self-Tender Transaction, the "Share Repurchase Program") because (i)
based on its assessment of its business profile, assets and prospects,
the Company has determined that the purchase of Shares by it pursuant
to the Share Repurchase Program constitutes a prudent use of the
Company's financial resources, and (ii) the Issuer Self-Tender
Transaction will permit those shareholders of the Company who desire
liquidity an opportunity to sell all or a portion of their Shares to
the Company in a manner that will enable them to avoid the usual
transaction costs which are normally incident to an open market sale
of Shares. In addition, the Company will reserve the right to purchase
up to an additional two percent (2%) of the outstanding Shares
pursuant to the Offer so that, if the Company exercises such right and
the Offer is oversubscribed, the Company could purchase as many as
945,757 Shares pursuant to the Offer. If the Company purchases less
than 800,000 Shares in the Issuer Self-Tender Transaction, the Company
may purchase additional Shares in the Open Market Repurchase Program
equal to the difference between 800,000 Shares and the number of
Shares which the Company purchases in the Issuer Self-Tender
Transaction.
(2) The Purchase Price at which the Company will purchase Shares in the
Issuer Self-Tender Transaction and the prices at which the Company
will purchase Shares in the Open Market Repurchase Program will, in
each instance, be equal to the fair market value of a Share on the
date on which Shares are purchased.
(3) The Company has no plan or intention to reacquire any shares of its
common stock (including any Shares), whether by purchase or otherwise,
following the completion of the Share Repurchase Program. However, it
is possible that the Company, in the future, after the Share
Repurchase Program has been completed, may purchase in the open market
or redeem from its shareholders additional shares of its common stock
(including Shares) based on circumstances prevailing at such time.
(4) The Company has no plan or intention to distribute any stock dividend,
to effect a stock split, or otherwise to distribute any shares of its
common stock to its shareholders during the course of, or following
the completion of, the Share Repurchase Program.
(5) The Company has not acquired or purchased, whether in the open market,
by redemption or otherwise, any shares of its common stock (including
any Shares) since December 31, 1987. During the period June 6, 1986
through December 31, 1987, the Company purchased 963,799 Shares in
open-market transactions. Of this amount, 750,000 Shares were
purchased in connection with a common stock repurchase program which
the Company announced in February 1986 (the
<PAGE> 2
"1986 Stock Purchase Program"). The 1986 Stock Purchase Program was
undertaken in order to ensure that an active market existed subsequent
to June 5, 1986 for Shares so that shareholders of the Company who did
not wish to continue as shareholders of the Company, after the June 6,
1986 restructuring of the Company was completed, could liquidate their
stock interest in the Company without incurring the burden and expense
of perfecting dissenter's rights. The balance of the Shares acquired
by the Company prior to January 1, 1988 (or 213,799 Shares) was also
purchased in open-market transactions. These Shares were purchased
pursuant to a common stock repurchase program which the Company's
Board of Directors authorized on October 22, 1987 (the "1987 Share
Purchase Program"). The 1987 Share Purchase Program was undertaken to
permit the Company to acquire additional Shares which it then believed
it needed in order to have an adequate number of Shares on hand to
provide benefits under the various employee benefit plans which the
Company then maintained.
(6) The Company has not distributed any stock dividend since July 15,
1986, when the Company distributed to its shareholders one share of
its Class B common stock with respect to every two Shares which such
shareholders then held.
(7) To the best knowledge of the management of the Company, on the basis
of investment decisions that they each individually have made, none of
the Family Shareholders intend to sell any Shares that they own to the
Company in the Share Repurchase Program, except that it is possible
that several of the Family Shareholders who hold insignificant numbers
of shares of common stock of the Company (including Shares) may sell
all or part of the Shares that they own to the Company in the Share
Repurchase Program.
(8) The Company and those shareholders of the Company who elect to sell
Shares to the Company in the Share Repurchase Program will each pay
their own expenses, if any, incurred in connection with the purchase
by the Company of Shares pursuant to the Share Repurchase Program.
(9) The Company is motivated solely by business reasons to undertake the
Share Repurchase Program, and the Share Repurchase Program is not
being undertaken by the Company in order to confer a federal income
tax benefit on any shareholder.
(10) The Company is not required by its Restated Certificate of
Incorporation or otherwise to redeem any of its outstanding Shares,
and none of the shareholders of the Company has a right to cause the
Company to purchase or otherwise redeem any Shares.
(11) All of the Shares which the Company will purchase pursuant to the
Share Repurchase Program will be held as treasury stock by the
Company.
We have assumed, with your permission, that for purposes of this Opinion:
(1) None of the shareholders of the Company has reached any plan or
agreement with any other shareholder of the Company as to whether he,
she or it will sell or will not sell to the Company in the Share
Repurchase Program any of the Shares that they each own.
(2) None of the Shares which the Company will purchase pursuant to the
Share Repurchase Program is "section 306 stock", within the meaning of
Section 306(c) of the Code.
(3) The Share Repurchase Program is an isolated transaction and is not
part of a plan by the Company to periodically increase the
proportionate interest of any shareholder of the Company in the assets
or earning and profits of the Company.
Based upon the foregoing, we are of the opinion that, for U.S. federal
income tax purposes, no holder of shares of common stock of the Company who does
not sell any Shares, or who sells less than all of the Shares which such
shareholder owns, to the Company pursuant to the Share Repurchase Program will
realize any gross income by reason of Section 305(c) of the Code as a result of
the purchase by the Company pursuant to the Share Repurchase Program of Shares
from other shareholders of the Company.
In rendering this opinion, we have assumed that the description of facts
contained in the Offer and the factual representations and assumptions recited
in the preceding paragraphs of this letter are, and on each date on which the
Company purchases Shares pursuant to the Share Repurchase Program will be,
accurate in all material respects, but we confirm to you that we have made no
independent investigation or inquiry whatsoever with respect to the accuracy of
such facts, representations and assumptions. It should be noted in
<PAGE> 3
this regard that any change in such facts, or in the representations and
assumptions recited above, or in the law, whether by way of statutory enactment
or judicial or administrative interpretation thereof, could materially affect
our opinion as expressed herein and possibly render it wholly or partially
inapplicable for purposes of determining whether shareholders of the Company who
do not sell Shares to the Company pursuant to the Share Repurchase Program, or
who sell to the Company pursuant to the Share Repurchase Program less than all
of the Shares which they each own, will be entitled to the tax treatment
described herein.
This opinion is furnished to you solely for the benefit of the Company.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
<PAGE> 1
EXHIBIT (g)(3)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Schedule 13E-4 of our report dated February 22, 1996 included
in the NACCO Industries, Inc. Annual Report on Form 10-K for the fiscal year
ended December 31, 1995. It should be noted that we have not audited any
financial statements of the Company subsequent to December 31, 1995 or performed
any audit procedures subsequent to the date of our report.
ARTHUR ANDERSEN LLP
November 15, 1996,
Cleveland, Ohio.
