-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, OazROP3QDKiFUl1cLR+i3ytktpuvJ3sCi9gxbs/mFof2WKrlSbKkPPLGIiiW+iUS w1S3hcULwAfS+zeH3ad12w== 0000950130-95-001370.txt : 19950725 0000950130-95-001370.hdr.sgml : 19950725 ACCESSION NUMBER: 0000950130-95-001370 CONFORMED SUBMISSION TYPE: SC 14D1 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 19950724 SROS: NASD GROUP MEMBERS: DANAHER CORP /DE/ GROUP MEMBERS: TK ACQUISITION CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: JOSLYN CORP /IL/ CENTRAL INDEX KEY: 0000054045 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRICAL INDUSTRIAL APPARATUS [3620] IRS NUMBER: 363560095 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-15605 FILM NUMBER: 95555533 BUSINESS ADDRESS: STREET 1: 30 S WACKER DR CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124542900 MAIL ADDRESS: STREET 1: 30 S WACKER DRIVE CITY: CHICAGO STATE: IL ZIP: 60606 FORMER COMPANY: FORMER CONFORMED NAME: JOSLYN MANUFACTURING & SUPPLY CO DATE OF NAME CHANGE: 19850527 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: JOSLYN CORP /IL/ CENTRAL INDEX KEY: 0000054045 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRICAL INDUSTRIAL APPARATUS [3620] IRS NUMBER: 363560095 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 SEC ACT: 1934 Act SEC FILE NUMBER: 005-15605 FILM NUMBER: 95555534 BUSINESS ADDRESS: STREET 1: 30 S WACKER DR CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124542900 MAIL ADDRESS: STREET 1: 30 S WACKER DRIVE CITY: CHICAGO STATE: IL ZIP: 60606 FORMER COMPANY: FORMER CONFORMED NAME: JOSLYN MANUFACTURING & SUPPLY CO DATE OF NAME CHANGE: 19850527 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DANAHER CORP /DE/ CENTRAL INDEX KEY: 0000313616 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 591995548 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 BUSINESS ADDRESS: STREET 1: 1250 24TH ST NW STREET 2: SUITE 800 CITY: WASHINGTON STATE: DC ZIP: 20037 BUSINESS PHONE: 2028280850 MAIL ADDRESS: STREET 1: 1250 24TH STREET NW STREET 2: SUITE 800 CITY: WASHINGTON STATE: DC ZIP: 20037 FORMER COMPANY: FORMER CONFORMED NAME: DMG INC DATE OF NAME CHANGE: 19850221 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DANAHER CORP /DE/ CENTRAL INDEX KEY: 0000313616 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 591995548 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1 BUSINESS ADDRESS: STREET 1: 1250 24TH ST NW STREET 2: SUITE 800 CITY: WASHINGTON STATE: DC ZIP: 20037 BUSINESS PHONE: 2028280850 MAIL ADDRESS: STREET 1: 1250 24TH STREET NW STREET 2: SUITE 800 CITY: WASHINGTON STATE: DC ZIP: 20037 FORMER COMPANY: FORMER CONFORMED NAME: DMG INC DATE OF NAME CHANGE: 19850221 SC 14D1 1 SCHEDULE 14D-1 AND SCHEDULE 13-D/A - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- SCHEDULE 14D-1 TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AND AMENDMENT NO. 2 TO SCHEDULE 13-D UNDER THE SECURITIES EXCHANGE ACT OF 1934 ---------------- JOSLYN CORPORATION (NAME OF SUBJECT COMPANY) TK ACQUISITION CORPORATION DANAHER CORPORATION (BIDDER) COMMON STOCK, PAR VALUE $1.25 PER SHARE 48107010 (INCLUDING THE ASSOCIATED RIGHTS) (CUSIP NUMBER OF CLASS OF (TITLE OF CLASS OF SECURITIES) SECURITIES) PATRICK W. ALLENDER TK ACQUISITION CORPORATION C/O DANAHER CORPORATION 1250 24TH STREET, N.W., SUITE 800 WASHINGTON D.C. 20037 TELEPHONE: (202) 828-0850 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER) COPY TO: MEREDITH M. BROWN, ESQ. DEBEVOISE & PLIMPTON 875 THIRD AVENUE NEW YORK, NEW YORK 10022 TELEPHONE: (212) 909-6000 ---------------- CALCULATION OF FILING FEE TRANSACTION VALUATION* AMOUNT OF FILING FEE** $220,558,656 $44,111.73 - -------- * Based on the offer to purchase all of the outstanding shares of Common Stock, par value $1.25 per share (the "Shares"), of the Subject Company and the associated Rights at $32 cash per share. Outstanding Shares are assumed to equal the sum of the number of Shares outstanding as reported as of March 31, 1995 in the Subject Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 and the number of options outstanding as of December 31, 1994 as reported in the Subject Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, less 613,550 Shares beneficially owned by Danaher Corporation. ** 1/50 of 1% of Transaction Valuation. [ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: ______________________ Form or Registration No.: ____________________ Filing Party: ____________________ Date Filed: ______________________ - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- CUSIP NO. 48107010 1. Name of Reporting Person: S.S. OR I.R.S. Identification No. of Above Person Danaher Corporation I.R.S. Identification No. 59-1995548 - -------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of Group (See Instructions) (a) [_] (b) [_] - -------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------- 4. Sources of Funds (See Instructions) BK - -------------------------------------------------------------------------- 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e) or 2(f) [_] - -------------------------------------------------------------------------- 6. Citizenship or Place of Organization Delaware - -------------------------------------------------------------------------- 7. Aggregate Amount Beneficially Owned by Each Reporting Person 613,550 Shares - -------------------------------------------------------------------------- 8. Check if the Aggregate Amount if Row (7) excludes Certain Shares (See Instructions) [_] - -------------------------------------------------------------------------- 9. Percent of Class Represented by Amount in Row (7) 8.6% - -------------------------------------------------------------------------- 10. Type of Reporting Person (See Instructions) CO 1 CUSIP NO. 48107010 1. Name of Reporting Person: S.S. OR I.R.S. Identification No. of Above Person TK Acquisition Corporation I.R.S. Identification No. 52-1935254 - -------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of Group (See Instructions) (a) [_] (b) [_] - -------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------- 4. Sources of Funds (See Instructions) AF - -------------------------------------------------------------------------- 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e) or 2(f) [_] - -------------------------------------------------------------------------- 6. Citizenship or Place of Organization Delaware - -------------------------------------------------------------------------- 7. Aggregate Amount Beneficially Owned by Each Reporting Person None - -------------------------------------------------------------------------- 8. Check if the Aggregate Amount if Row (7) excludes Certain Shares (See Instructions) [_] - -------------------------------------------------------------------------- 9. Percent of Class Represented by Amount in Row (7) 0% - -------------------------------------------------------------------------- 10. Type of Reporting Person (See Instructions) CO 2 This Tender Offer Statement on Schedule 14D-1 relates to the offer by TK Acquisition Corporation, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), to purchase all of the outstanding shares of Common Stock, $1.25 par value per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and (unless and until the Purchaser declares that the Rights Condition as defined in the Offer to Purchase referred to below is satisfied) the associated Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988 and amended as of September 2, 1994, between the Company and The First National Bank of Chicago, an Illinois banking corporation, as Rights Agent (the "Rights Agreement"), at a purchase price of $32 per Share (and associated Right), net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), and in the related Letter of Transmittal (which, together with the Offer to Purchase and supplements thereto, collectively constitute the "Offer"), copies of which are attached as Exhibits (a)(1) and (a)(2), respectively. ITEM 1. SECURITY AND SUBJECT COMPANY (a) The name of the subject company is Joslyn Corporation. The principal executive offices of the Company are located at 30 South Wacker Drive, Chicago, Illinois 60606. (b) The exact title of the class of equity securities being sought in the Offer is Common Stock, $1.25 par value per share, including the associated Rights, of the Company. Information regarding the number of Shares outstanding, the amount of Shares being sought and the consideration being offered therefor is set forth in the Introduction (the "Introduction") of the Offer to Purchase and is incorporated herein by reference. (c) Information concerning the principal market in which the Shares are traded and the high and low sales prices of the Shares for each quarterly period during the past two years is set forth in Section 6 ("Price Range of the Shares and Rights; Dividends") of the Offer to Purchase and is incorporated herein by reference. ITEM 2. IDENTITY AND BACKGROUND (a)-(d) and (g) This Statement is filed by the Purchaser and Parent. The information concerning the name, the state of its organization, its principal business and address of the principal office of each of the Purchaser and Parent, and the information regarding the name, business address, present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment or occupation is conducted, material occupations, positions, offices or employments during the last five years and the citizenship of each of the executive officers and directors of the Purchaser and Parent is set forth in Section 9 ("Certain Information Concerning the Purchaser and Parent") of the Offer to Purchase and in Schedule I thereto and is incorporated herein by reference. (e) and (f) During the last five years, neither the Purchaser nor Parent nor, to the best knowledge of the Purchaser or Parent, any of the persons listed in Schedule I to the Offer to Purchase (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws. ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY (a) The information set forth in Section 9 ("Certain Information Concerning the Purchaser and Parent") of the Offer to Purchase is incorporated herein by reference. Except as set forth in Section 9 of the Offer to Purchase, since January 1, 1992, there have been no transactions which would be required to be disclosed under this Item 3(a) between either the Purchaser or Parent or, to the best knowledge of the Purchaser and Parent, any of the persons listed in Schedule I to the Offer to Purchase and the Company or any of its executive officers, directors or affiliates. 3 (b) The information set forth in Section 9 ("Certain Information Concerning the Purchaser and Parent") and Section 10 ("Background of the Offer; Contacts with the Company") of the Offer to Purchase is incorporated herein by reference. Except as set forth in Section 9 and Section 10 of the Offer to Purchase, since January 1, 1992, there have been no contacts, negotiations or transactions which would be required to be disclosed under this Item 3(b) between either the Purchaser or Parent or any of their respective subsidiaries or, to the best knowledge of the Purchaser and Parent, any of those persons listed in Schedule I to the Offer to Purchase and the Company or its affiliates concerning a merger, consolidation or acquisition, a tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets. ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION (a)-(b) The information set forth in Section 12 ("Source and Amount of Funds") of the Offer to Purchase is incorporated herein by reference. (c) Not applicable. ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER (a)-(g) The information set forth in the Introduction, Section 7 ("Possible Effects of the Offer on the Market for the Shares and Rights; Stock Exchange Listing, Exchange Act Registration; Margin Regulations"), Section 10 ("Background of the Offer; Contacts with the Company"), Section 11 ("Purpose of the Offer; Plans for the Company") and Section 13 ("Dividends and Distributions") of the Offer to Purchase is incorporated herein by reference. ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY (a) The information set forth in the Introduction and Section 9 ("Certain Information Concerning the Purchaser and Parent") of, and Schedule I to, the Offer to Purchase is incorporated herein by reference. (b) The information set forth in the Introduction, Section 9 ("Certain Information Concerning the Purchaser and Parent") and Section 10 ("Background of the Offer; Contacts with the Company") of, and Schedule I to, the Offer to Purchase is incorporated herein by reference. ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO THE SUBJECT COMPANY'S SECURITIES The information set forth in the Introduction, Section 9 ("Certain Information Concerning the Purchaser and Parent"), Section 10 ("Background of the Offer; Contacts with the Company"), Section 11 ("Purpose of the Offer; Plans for the Company"), Section 12 ("Source and Amount of Funds") and Section 16 ("Certain Fees and Expenses") of the Offer to Purchase is incorporated herein by reference. Except as set forth in the Introduction and Sections 9, 10, 11, 12 and 16 of the Offer to Purchase, neither the Purchaser nor Parent, nor, to the best knowledge of the Purchaser or Parent, any of the persons listed in Schedule I to the Offer to Purchase, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of the Company (including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of any such securities, joint ventures, loans or option arrangements, puts or calls, guarantees of loans, guarantee agreements or any giving or withholding of proxies). ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED The information set forth in the Introduction and Section 16 ("Certain Fees and Expenses") of the Offer to Purchase is incorporated herein by reference. 4 ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS The information set forth in Section 9 ("Certain Information Concerning the Purchaser and Parent") of the Offer to Purchase, including the financial statements and related notes thereto incorporated by reference in Section 9, is incorporated herein by reference. The incorporation by reference herein of the above-referenced financial information does not constitute an admission that such information is material to a decision by a shareholder of the Company whether to sell, tender or hold Shares being sought in the Offer. ITEM 10. ADDITIONAL INFORMATION (a) The information set forth in the Introduction, in Section 9 ("Certain Information Concerning the Purchaser and Parent"), in Section 10 ("Background of the Offer; Contracts with the Company") and in Section 12 ("Purpose of the Offer; Plans for the Company") of the Offer to Purchase is incorporated herein by reference. (b) and (c) The information set forth in the Introduction, Section 11 ("Purpose of the Offer; Plans for the Company") and Section 15 ("Certain Legal Matters; Required Regulatory Approvals") of the Offer to Purchase is incorporated herein by reference. (d) The information set forth in Section 7 ("Possible Effects of the Offer on the Market for the Shares and Rights; Stock Exchange Listing, Exchange Act Registration; Margin Regulations") and Section 15 ("Certain Legal Matters; Required Regulatory Approvals") of the Offer to Purchase is incorporated herein by reference. (e) The information set forth in Section 10 ("Background of the Offer; Contacts with the Company") and Section 15 ("Certain Legal Matters; Required Regulatory Approvals") of the Offer to Purchase is incorporated herein by reference. (f) The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS (a)(1) Offer to Purchase dated July 24, 1995. (a)(2) Letter of Transmittal. (a)(3) Notice of Guaranteed Delivery. (a)(4) Letter from the Dealer Manager to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. (a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(7) Summary Advertisement as published on July 24, 1995. (a)(8) Press Release issued by Parent on July 24, 1995. (b)(1)(a) Credit Agreement, dated as of September 7, 1990, as amended, by and among Parent and the Financial Institutions listed therein (incorporated by reference to Exhibit 11(b)(1) of Parent's Schedule 14D-1 dated March 22, 1994). (b)(1)(b) Letter, dated July 20, 1995, from Bank of America to Parent. (c) None. (d) None. (e) Not applicable. (f) None. (g)(1) Complaint seeking Declaratory and Injunctive Relief filed in the United States District Court for the Northern District of Illinois on July 24, 1995.
5 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Danaher Corporation /s/ Patrick W. Allender By: _________________________________ Name: Patrick W. Allender Title:Senior Vice President, Chief Financial Officer and Secretary TK Acquisition Corporation /s/ Patrick W. Allender By: _________________________________ Name: Patrick W. Allender Title: Vice President and Treasurer Date: July 24, 1995 6 EXHIBIT INDEX
PAGE EXHIBIT NO. DESCRIPTION NO. ----------- ----------- ---- 11(a)(1) Offer to Purchase dated July 24, 1995................................... 11(a)(2) Letter of Transmittal................................................... 11(a)(3) Notice of Guaranteed Delivery........................................... 11(a)(4) Letter from the Dealer Manager to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees............................................ 11(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.................................................. 11(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9................................................................ 11(a)(7) Summary Advertisement as published on July 24, 1995..................... 11(a)(8) Press Release issued by Parent on July 24, 1995......................... 11(b)(1)(a) Credit Agreement, dated as of September 7, 1990, as amended, by and among Parent and the Financial Institutions listed therein. (This Exhibit can be found as Exhibit 11(b)(1) to Parent's Schedule 14D-1 dated March 22, 1994 and is incorporated herein by reference.) ......... 11(b)(1)(b) Letter, dated July 20, 1995, from Bank of America to Parent............. 11(g)(1) Complaint seeking Declaratory and Injunctive Relief filed in the United States District Court for the Northern District of Illinois on July 24, 1995....................................................................
EX-11.(A)(1) 2 OFFER TO PURCHASE DATED JULY 24, 1995 EXHIBIT 11(a)(1) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS) OF JOSLYN CORPORATION AT $32 NET PER SHARE BY TK ACQUISITION CORPORATION AN INDIRECT WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, AUGUST 18, 1995, UNLESS THE OFFER IS EXTENDED. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS: (1) THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF SHARES WHICH, WHEN AGGREGATED WITH THE SHARES CURRENTLY OWNED BY DANAHER CORPORATION ("PARENT"), REPRESENT AT LEAST TWO-THIRDS OF THE TOTAL NUMBER OF OUTSTANDING SHARES OF COMMON STOCK, PAR VALUE $1.25 PER SHARE (THE "SHARES"), OF JOSLYN CORPORATION (THE "COMPANY") DETERMINED ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE (THE "MINIMUM CONDITION"), (2) THE COMPANY'S COMMON STOCK PURCHASE RIGHTS (THE "RIGHTS") HAVING BEEN REDEEMED BY THE COMPANY'S BOARD OF DIRECTORS OR TK ACQUISITION CORPORATION (THE "PURCHASER") BEING SATISFIED, IN ITS SOLE DISCRETION, THAT SUCH RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (AS DEFINED IN THE INTRODUCTION) (THE "RIGHTS CONDITION") AND (3) THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT AFTER CONSUMMATION OF THE OFFER, THE RESTRICTIONS ON BUSINESS COMBINATIONS AS DEFINED AND CONTAINED IN SECTIONS 7.85 AND 11.75 OF THE ILLINOIS BUSINESS CORPORATION ACT (THE "ILLINOIS LAW") WILL NOT APPLY TO THE PROPOSED MERGER (THE "BUSINESS COMBINATION CONDITION"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN THIS OFFER TO PURCHASE. SEE "INTRODUCTION" AND SECTIONS 1, 14 AND 15. --------------- IMPORTANT Any shareholder desiring to tender all or any portion of his or her Shares, and the associated Rights, should either (i) complete and sign the Letter of Transmittal (or a facsimile thereof) in accordance with the instructions in the Letter of Transmittal and mail or deliver it together with the certificate(s) representing tendered Shares ("Share Certificates") and, if separate, the certificate(s) representing the associated Rights ("Rights Certificates"), and any other required documents, to the Depositary (as defined herein) or tender such Shares (and associated Rights, if applicable) pursuant to the procedures for book-entry transfer set forth in Section 3 or (ii) request his or her broker, dealer, commercial bank, trust company or other nominee to effect the transaction for the shareholder. A shareholder whose Shares and, if applicable, associated Rights are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if the shareholder desires to tender such Shares and, if applicable, the associated Rights. Unless and until the Purchaser declares that the Rights Condition is satisfied, shareholders will be required to tender one associated Right for each Share tendered in order to effect a valid tender of such Share. Until the Distribution Date (as defined in Section 11) occurs, the Rights will be represented by and transferred with the Shares. Accordingly, if the Distribution Date does not occur prior to the Expiration Date (as defined in Section 1), a tender of Shares will constitute a tender of the associated Rights. If the Distribution Date occurs prior to the Expiration Date, the procedures set forth in Section 3 with respect to separate delivery of Rights Certificates must be followed. A shareholder who desires to tender his or her Shares and associated Rights, and whose certificates representing such Shares (and, if applicable, associated Rights) are not immediately available or who cannot comply with the procedures for book-entry transfer on a timely basis, may tender such Shares (and, if applicable, associated Rights) by following the procedures for guaranteed delivery set forth in Section 3. Questions and requests for assistance may be directed to Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Dealer Manager") or to D.F. King & Co., Inc. (the "Information Agent") at their respective addresses and telephone numbers set forth on the back cover of this Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other related materials may be obtained from the Information Agent or from brokers, dealers, commercial banks and trust companies. The Dealer Manager for the Offer is: MERRILL LYNCH & CO. July 24, 1995 TABLE OF CONTENTS
PAGE ---- INTRODUCTION....................................................................... 1 THE TENDER OFFER................................................................... 6 1. Terms of the Offer.......................................................... 6 2. Acceptance for Payment and Payment for Shares............................... 7 3. Procedures for Tendering Shares and Rights.................................. 9 4. Withdrawal Rights........................................................... 13 5. Certain Federal Income Tax Consequences..................................... 14 6. Price Range of the Shares and Rights; Dividends............................. 14 7. Possible Effects of the Offer on the Market for the Shares and Rights; Stock Exchange Listing, Exchange Act Registration; Margin Regulations............ 15 8. Certain Information Concerning the Company.................................. 17 9. Certain Information Concerning the Purchaser and Parent..................... 19 10. Background of the Offer; Contacts with the Company.......................... 22 11. Purpose of the Offer; Plans for the Company................................. 27 12. Source and Amount of Funds.................................................. 34 13. Dividends and Distributions................................................. 35 14. Certain Conditions of the Offer............................................. 36 15. Certain Legal Matters; Required Regulatory Approvals........................ 40 16. Certain Fees and Expenses................................................... 43 17. Miscellaneous............................................................... 43 SCHEDULE I Directors and Executive Officers of Parent and the Purchaser............ S-1
To: All Holders of Shares of Common Stock of Joslyn Corporation INTRODUCTION TK Acquisition Corporation, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), hereby offers to purchase all outstanding shares of common stock, par value $1.25 per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and (unless and until the Purchaser declares that the Rights Condition (as defined herein) has been satisfied) the associated Common Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988 and amended as of September 2, 1994, between the Company and The First National Bank of Chicago, an Illinois banking corporation, as Rights Agent (as the same may be further amended, the "Rights Agreement"), at a purchase price of $32 per Share (and associated Right), net to the seller in cash without interest thereon, upon the terms and subject to the conditions set forth in this Offer to Purchase and in the related Letter of Transmittal (which together constitute the "Offer"). Unless the context otherwise requires, all references in this Offer to Purchase to "Shares" shall include the associated Rights and all references to "Rights" shall include all benefits that may inure to the shareholders of the Company or to holders of the Rights pursuant to the Rights Agreement. Tendering shareholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of Shares and Rights pursuant to the Offer. However, any tendering shareholder or other payee who fails to complete and sign the Substitute Form W-9 that is included in the Letter of Transmittal may be subject to a required backup federal income tax withholding of 31% of the gross proceeds payable to such shareholder or other payee pursuant to the Offer. See Section 3. The Purchaser will pay all fees and expenses of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), which is acting as Dealer Manager for the Offer (in such capacity, the "Dealer Manager"), Bank of America Illinois as Depositary (the "Depositary"), and D.F. King & Co., Inc. as Information Agent (the "Information Agent"), incurred in connection with the Offer. See Section 16. The purpose of the Offer is to acquire control of, and the entire equity interest in, the Company. The Purchaser currently intends to propose and seek to have the Company consummate, as soon as practicable following completion of the Offer, a merger or similar business combination with the Purchaser (the "Proposed Merger"), pursuant to which each then outstanding Share (other than Shares owned by Parent or any of its wholly owned subsidiaries, Shares held in the treasury of the Company and Shares held by shareholders who perfect appraisal rights under the Illinois Business Corporation Act (the "Illinois Law")) would be converted into the right to receive cash in the same amount as received per Share in the Offer, and the Company would become an indirect wholly owned subsidiary of Parent. Although the Purchaser will seek to have the Company consummate the Proposed Merger as soon as practicable after consummation of the Offer, if the Board of Directors of the Company opposes the Offer and the Proposed Merger, certain terms of the Rights and certain provisions of the Illinois Law, the Company's Certificate of Incorporation, as amended (the "Company's Certificate"), and the Company's Bylaws, as amended and restated on September 16, 1994 (the "Company's Bylaws"), may affect the ability of the Purchaser to consummate the Offer, to obtain control of the Company and to effect the Proposed Merger. Accordingly, the timing of consummation of the Offer and the Proposed Merger will depend on a variety of factors and legal requirements, the actions of the Board of Directors of the Company, the number of Shares (if any) acquired by the Purchaser pursuant to the Offer, and whether the Minimum Condition, the Rights Condition and the Business Combination Condition (as such terms are defined herein) are satisfied or waived. In order to increase the likelihood that the Company and the Purchaser enter into the Proposed Merger, Parent and the Purchaser intend to commence a solicitation of appointments of Parent and the Purchaser as designated agents for the purpose of calling a special meeting of the Company's shareholders (the "Special Meeting") at which, among other things, Parent and the Purchaser would propose that the holders of Shares (i) remove all of the incumbent directors of the Company, (ii) amend the Company's By-Laws to fix the number of directors of the Company at three and (iii) elect the nominees of the Purchaser to serve as the directors of the Company. The nominees of the Purchaser, if elected at the Special Meeting, intend (a) subject to invalidation of the provision of the Rights Agreement providing that the Rights may be redeemed only by action of the Continuing Directors (see Section 11), to redeem the Rights (or amend the Rights Agreement to make the Rights inapplicable to the Offer and the Proposed Merger) and approve the Offer and the Proposed Merger under Sections 7.85 and 11.75 of the Illinois Law or take such other action as may be necessary to satisfy the Rights Condition and the Business Combination Condition (each as hereinafter defined), and take such other actions as may be required to expedite prompt consummation of the Offer and the Proposed Merger, or (b) if any other transaction offering more value to the Company's shareholders is proposed, to take such actions as may be required to facilitate such a transaction, subject to fulfillment of the fiduciary duties that they would have as directors of the Company. THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY, CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO ANY MEETING OF THE COMPANY'S SHAREHOLDERS OR ANY ACTION IN LIEU THEREOF. ANY SUCH SOLICITATION WHICH PARENT OR THE PURCHASER MAY MAKE WILL BE MADE ONLY PURSUANT TO SEPARATE PROXY SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER. The Offer is conditioned upon the fulfillment of certain conditions described herein. The Offer will expire at 12:00 midnight, New York City time, on Friday, August 18, 1995, unless extended. Certain Conditions to the Offer The Offer is subject to the fulfillment of certain conditions, including, without limitation, the following: MINIMUM CONDITION. CONSUMMATION OF THE OFFER IS CONDITIONED (THE "MINIMUM CONDITION") UPON THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED IN SECTION 1) THAT NUMBER OF SHARES WHICH, WHEN AGGREGATED WITH THE SHARES CURRENTLY OWNED BY PARENT, REPRESENT AT LEAST TWO-THIRDS OF THE TOTAL NUMBER OF OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE. FOR PURPOSES OF THIS OFFER "ON A FULLY DILUTED BASIS" MEANS, AS OF ANY DATE, THE NUMBER OF SHARES OUTSTANDING, TOGETHER WITH SHARES THAT THE COMPANY IS OR MAY BECOME REQUIRED TO ISSUE PURSUANT TO OBLIGATIONS OUTSTANDING AT THAT DATE UNDER CONVERTIBLE SECURITIES, EMPLOYEE AND DIRECTOR STOCK OPTIONS, OR OTHERWISE. According to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 (the "Company's First Quarter 10-Q") filed with the Securities Exchange Commission (the "Commission") pursuant to the Exchange Act, as of May 11, 1995, there were 7,162,000 Shares outstanding. According to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994 (the "Company's 1994 10-K"), filed with the Commission pursuant to the Exchange Act, there were options to purchase 344,008 Shares outstanding at December 31, 1994 and 1,737,242 Shares remaining available for grant under the Company's Employee Stock Benefit Plan (the "Company's Employee Stock Plan") and the Company's Stock Option Plan (the "Company's Stock Plan"). Information is not currently publicly available with respect to the number of Shares subject to options pursuant to the Company's recently-adopted Non-Employee Director Stock Plan (the "Company's Outside Director Stock Plan"). Accordingly, based on publicly available information, there are 7,506,008 Shares outstanding on a fully diluted basis (of which Parent, through its wholly owned subsidiary DH Holdings Corp., owns 613,550 Shares), assuming (1) that no Shares were issued or acquired by the Company after March 31, 1995, (2) no options are outstanding with respect to the Company's Outside Director Stock Plan, (3) no exercise of the options outstanding as of December 31, 1994 prior to the Expiration Date and (4) that as of the Expiration Date there are no other obligations to issue Shares. Based on the foregoing, the Minimum Condition would be satisfied if at least 4,161,117 Shares are validly tendered pursuant to the Offer and not properly withdrawn. 2 The Purchaser will make a determination as to whether the Minimum Condition has been satisfied based on the best information available to it at the time of such determination. RIGHTS CONDITION. CONSUMMATION OF THE OFFER IS CONDITIONED UPON THE RIGHTS HAVING BEEN REDEEMED BY THE COMPANY'S BOARD OF DIRECTORS OR THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT SUCH RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE TO THE OFFER AND THE PROPOSED MERGER (THE "RIGHTS CONDITION"). THE RIGHTS ARE DESCRIBED IN THE COMPANY'S FORM 8-A/A, DATED SEPTEMBER 9, 1994 (THE "COMPANY'S 8-A/A"), AND SUCH DESCRIPTION IS SUMMARIZED HEREIN AND IN SECTION 11. According to the Company's 8-A/A, a person who beneficially owns 15% or more of the outstanding Shares is deemed to be an "Acquiring Person" for purposes of the Rights Agreement, provided that such term excludes certain persons who inadvertently come to own beneficially 15% or more of the outstanding Shares and who promptly divest a sufficient number of Shares so that such persons would no longer be Acquiring Persons. As of the date hereof, Parent, through its wholly owned subsidiary DH Holdings Corp., owned an aggregate of 613,550 Shares. If Parent or the Purchaser acquires any additional Shares, which together with the 613,550 Shares already owned by Parent represent 15% or more of the outstanding Shares, unless prior to such time the Rights are redeemed or invalidated or otherwise inapplicable to the Offer, each holder of record of a Right (other than Parent and the Purchaser, according to the terms of the Rights Agreement) will have the right to receive, upon exercise of the Right, Shares having a purchase price at the time of the transaction equal to the greater of (i) 20% of the then current market price per Share and (ii) the par value per Share. In the event that, once a person has become an Acquiring Person, (i) the Company is acquired in a share exchange or in a merger or consolidation in which the Company is not the surviving corporation or in which all or part of the outstanding Shares is changed into or exchanged for securities of any other person, cash or any other property or (ii) more than 50% of the Company's consolidated assets or earning power is sold or transferred to any person (other than the Company, any subsidiary of the Company or any employee benefit plan of the Company or of any subsidiary of the Company), each holder of a Right (other than Parent and the Purchaser, according to the terms of the Rights Agreement) shall thereafter have the right to receive, upon exercise of the Right, such number of shares of common stock of the acquiring company as shall have a value equal to two times the exercise price of the Right. As a result, the Rights could make Parent's acquisition of the Company prohibitively expensive by severely diluting Parent's equity interest and voting power. According to the Company's 8-A/A, at any time until the earlier of (i) fifteen days after the date of public announcement that a person has become an Acquiring Person or (ii) the date of expiration of the Rights pursuant to the Rights Agreement, the Board of Directors of the Company may redeem the Rights in whole, but not in part, at a price of $0.03333 per Right. Immediately upon the action of the Board of Directors of the Company authorizing redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive $0.03333 per Right. Under certain circumstances set forth in the Rights Agreement, the decision to redeem is stated to require the concurrence of a majority of the Continuing Directors, defined to mean any member of the Board of Directors of the Company who was a member of the Board prior to the date of the Rights Agreement, and any person who is subsequently elected to the Board if such person is recommended or approved by a majority of the Continuing Directors, but not to include an Acquiring Person, any affiliate or associate of an Acquiring Person, or any representative of the foregoing entities. According to the Company's 8-A/A, until the Distribution Date (as defined in Section 11), the Rights will not be exercisable and will be represented by and transferred with, and only with, the associated Shares and the surrender for transfer of any of the certificates representing Shares (the "Share Certificates") will also constitute the transfer of the Rights associated with the Shares represented by such Share Certificates. According to the Company's 8-A/A, the Rights Agreement provides that the Rights will become exercisable after the Distribution Date and, as soon as practicable following the Distribution Date, separate certificates representing the Rights ("Rights Certificates") will be mailed to holders of record of Shares as of the Distribution Date, and thereafter the Rights Certificates alone will evidence the Rights. Based on publicly available information, the Purchaser believes that currently the Rights are not exercisable, Rights Certificates 3 have not been issued and the Rights are evidenced by the Share Certificates. Under the Rights Agreement, as a result of the announcement of the Offer, the Purchaser believes that the Distribution Date will be as early as August 7, 1995, unless prior to such date the Company's Board of Directors redeems or otherwise makes inapplicable to the Offer the Rights or takes action to delay the Distribution Date. The Purchaser is hereby requesting that the Company's Board of Directors redeem the Rights or take such other action as is necessary to make the Rights inapplicable to the Offer. The Purchaser believes that under the circumstances of the Offer, and under applicable law, the Board of Directors of the Company has a fiduciary obligation to redeem the Rights (or to amend the Rights Agreement to make the Rights inapplicable to the Offer and the Proposed Merger). However, there can be no assurance that the Board of Directors of the Company will redeem the Rights (or so amend the Rights Agreement). The Purchaser has commenced litigation against the Company and its directors in the United States District Court for the Northern District of Illinois (the "Court") seeking, among other things, a preliminary injunction enjoining the operation of the provisions of the Rights Agreement purporting to require the approval by the Continuing Directors for redeeming the Rights or taking certain actions with respect to the Rights and the Rights Agreement and an order compelling the Board of Directors of the Company to redeem the Rights or to make the Rights inapplicable to the Offer and the Proposed Merger. See Section 10 for a further discussion of this litigation. The Purchaser expects to seek to remove the members of the current Board of Directors of the Company and to replace them with the Purchaser's nominees, who intend to redeem the Rights (or amend the Rights Agreement to make the Rights inapplicable to the Offer and the Proposed Merger) subject to the fulfillment of the fiduciary duties that they would have as directors of the Company. Redemption of the Rights (or such an amendment to the Rights Agreement) by the current Board of Directors, or, if the provisions of the Rights Agreement relating to the requirement for approval by the Continuing Directors have been declared invalid, by the nominees of the Purchaser, would satisfy the Rights Condition. BUSINESS COMBINATION CONDITION. CONSUMMATION OF THE OFFER IS CONDITIONED UPON THE PURCHASER BEING SATISFIED, IN ITS SOLE DISCRETION, THAT AFTER CONSUMMATION OF THE OFFER, THE RESTRICTIONS CONTAINED IN SECTIONS 7.85 AND 11.75 OF THE ILLINOIS LAW (TOGETHER, THE "BUSINESS COMBINATION LAW") WILL NOT APPLY TO THE PROPOSED MERGER OR OTHER BUSINESS COMBINATION (AS DEFINED THEREIN) TO WHICH PURCHASER IS DIRECTLY OR INDIRECTLY A PARTY (THE "BUSINESS COMBINATION CONDITION"). The Proposed Merger, including, without limitation, the timing and details thereof, is subject to, among other things, the provisions of the Illinois Law, including, without limitation, the Business Combination Law. The two relevant Sections of the Business Combination Law are summarized below. See Section 10 for a more detailed description of the terms of the Business Combination Law. SECTION 7.85 Section 7.85 of the Illinois Law provides that an Illinois corporation, such as the Company, may not engage in any "Business Combination" (defined to include a variety of transactions, including, without limitation, a merger) with any "Interested Shareholder" (defined for purposes of Section 7.85 as a person that directly or indirectly beneficially owns 10% or more of the corporation's outstanding voting stock), or any affiliate of an Interested Shareholder, at any time unless (i) two-thirds of the Disinterested Directors (as such term is defined in Section 10) of such corporation approved the Business Combination, (ii) the Business Combination is approved by the holders of at least (a) 80% of the outstanding voting stock of the corporation and (b) a majority of the combined voting power of the corporation's voting stock which is not owned by the Interested Shareholder or its affiliates or associates, or (iii) the Business Combination meets certain "fair price" and "fair process" requirements, which (a) set minimum levels for consideration to be received by shareholders, (b) disallow certain preferential arrangements between the corporation and the Interested Shareholder and (c) require that a proxy or information statement describing the business combination be mailed to shareholders at least 30 days prior to the consummation of the business combination. See Section 10. 4 SECTION 11.75 Section 11.75 of the Illinois Law provides that an Illinois corporation, such as the Company, may not engage in any Business Combination with any "Interested Shareholder" (defined for purposes of Section 11.75 as a person that directly or indirectly, by itself or with or through any of the affiliates or associates, beneficially owns 15% or more of the corporation's outstanding voting stock) for three years after the date on which the Interested Shareholder becomes an Interested Shareholder, unless (i) prior to the date such Interested Shareholder became an Interested Shareholder, the board of directors of such corporation approved either the Business Combination or the transaction which resulted in the shareholder becoming an Interested Shareholder, (ii) upon consummation of the transaction which resulted in the shareholder becoming an Interested Shareholder, the Interested Shareholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced or (iii) on or subsequent to the date the shareholder becomes an Interested Shareholder, the Business Combination is (a) approved by the board of directors of the corporation and (b) authorized at an annual or special meeting of shareholders by the affirmative vote of the holders of at least two-thirds of the outstanding voting stock of the Corporation which is not owned by the Interested Shareholder. The Business Combination Condition would be satisfied if (i) both of the following conditions (a) and (b) are satisfied, or (ii) if the Purchaser, in its sole discretion, were satisfied that the Business Combination Law was invalid or its restrictions were otherwise inapplicable to the Purchaser in connection with the Proposed Merger for any reason, including, without limitation, those specified in the Business Combination Law: (a) the Board of Directors of the Company approved the Offer and the Proposed Merger prior to consummation of the Offer, or if, upon consummation of the Offer, the Purchaser owned at least 85% of the total voting stock of the Company outstanding at the time the transaction commenced, and (b) two-thirds of the Company's Disinterested Directors approved the Proposed Merger, or the holders of 80% of the Shares and a majority of the disinterested shareholders of the Company approved the Proposed Merger, or the Proposed Merger were found to meet the "fair price" and "fair process" requirements outlined above and described in detail in Section 10. The Purchaser is hereby requesting that the Board of Directors approve the Offer and Proposed Merger for purposes of the Business Combination Law. There can be no assurance that the Board of Directors will do so. If the Board does not so approve the Offer and Proposed Merger but both conditions (a) and (b) above are otherwise satisfied, then the restrictions on business combinations contained in the Business Combination Law would not be applicable. The Purchaser has commenced litigation against the Company and all of its directors in the Court seeking, among other things, an order compelling the Board of Directors of the Company to approve the Offer and the Proposed Merger for purposes of the Business Combination Law, on the grounds that failure to do so would constitute a breach of fiduciary duty to the Company's shareholders. See Section 10 for a further discussion of this litigation. At the Special Meeting, the Purchaser expects to seek to remove the members of the current Board of Directors of the Company and to replace them with the Purchaser's nominees, who intend to approve the Offer and the Proposed Merger under the Business Combination Law, subject to the fulfillment of the fiduciary duties that they would have as Directors of the Company. Approval of the Offer and the Proposed Merger under the Business Combination Law would satisfy the Business Combination Condition. Certain other conditions to the consummation of the Offer are described in Section 14. The Purchaser expressly reserves the right to waive any one or more of the conditions to the Offer. See Sections 14 and 15. THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. 5 THE TENDER OFFER 1. TERMS OF THE OFFER Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of any such extension or amendment), the Purchaser will accept for payment and thereby purchase all Shares validly tendered and not properly withdrawn in accordance with the procedures set forth in Section 4 on or prior to the Expiration Date (as defined herein). The term "Expiration Date" means 12:00 midnight, New York City time, on Friday, August 18, 1995, unless and until the Purchaser, in its sole discretion, shall have extended the period of time for which the Offer is open, in which event the term "Expiration Date" shall mean the time and date at which the Offer, as so extended by the Purchaser, shall expire. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, SATISFACTION OF EACH OF THE CONDITIONS SET FORTH ABOVE IN THE INTRODUCTION AND IN SECTION 14. THE PURCHASER RESERVES THE RIGHT (BUT SHALL NOT BE OBLIGATED) TO WAIVE ANY OR ALL OF SUCH CONDITIONS. If by the Expiration Date, any or all of such conditions have not been satisfied or waived, the Purchaser expressly reserves the right (but shall not be obligated) (i) to decline to purchase any of the Shares tendered and terminate the Offer, (ii) to waive all of the unsatisfied conditions and, subject to complying with applicable rules and regulations of the Commission, to purchase all Shares validly tendered or (iii) to extend the Offer and, subject to the right of shareholders to withdraw Shares until the Expiration Date, retain the Shares which have been tendered during the period or periods for which the Offer is extended. In the event that the Purchaser waives any of the conditions set forth in Section 14, the Commission may, if the waiver is deemed to constitute a material change to the information previously provided to the shareholders, require that the Offer remain open for an additional period of time and/or that the Purchaser disseminate information concerning such waiver. The Purchaser expressly reserves the right (but shall not be obligated) to waive or reduce the Minimum Condition and to accept for payment pursuant to the Offer less than two-thirds of the total number of outstanding Shares on a fully diluted basis on the date of purchase. The Purchaser expressly reserves the right, in its sole discretion, at any time and from time to time, to extend the period during which the Offer is open for any reason, including, without limitation, the occurrence of any of the events or non-satisfaction of any of the conditions specified in the Introduction or in Section 14, by giving oral or written notice of such extension to the Depositary. During any such extension, all Shares previously tendered and not properly withdrawn will remain subject to the Offer, subject to the right of a tendering shareholder to withdraw such shareholder's Shares. See Section 4. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR TENDERED SHARES AND RIGHTS, WHETHER OR NOT THE PURCHASER EXERCISES ITS RIGHT TO EXTEND THE OFFER. Subject to the applicable regulations of the Commission, the Purchaser also expressly reserves the right, in its sole discretion, at any time or from time to time, to (i) delay acceptance for payment of or, regardless of whether such Shares were theretofore accepted for payment, payment for any Shares pending receipt of any required regulatory or governmental approvals, (ii) terminate the Offer (whether or not any Shares have theretofore been accepted for payment) if any condition referred to in the Introduction or in Section 14 has not been satisfied or upon the occurrence of any event specified in the conditions set forth in the Introduction or in Section 14 and (iii) waive any condition or otherwise amend the Offer in any respect, in each case, by giving oral or written notice of such delay, termination, waiver or amendment to the Depositary and, other than in the case of any such waiver, by making a public announcement thereof. The Purchaser acknowledges (a) that Rule 14e-l(c) under the Exchange Act requires the Purchaser to pay the consideration offered or 6 return the Shares tendered promptly after the termination or withdrawal of the Offer and (b) that the Purchaser may not delay acceptance for payment of, or payment for (except as provided in clause (i) of the preceding sentence), any Shares upon the occurrence of any event specified in the conditions set forth in the Introduction or in Section 14 without extending the period of time during which the Offer is open. The rights reserved by the Purchaser in the preceding paragraph are in addition to the Purchaser's rights pursuant to Section 14. Any such extension, delay, termination or amendment will be followed as promptly as practicable by public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which the Purchaser may choose to make any public announcement, subject to applicable law (including, without limitation, Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which require that material changes be promptly disseminated to holders of Shares), the Purchaser shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a release to the Dow Jones News Service. If the Purchaser makes a material change in the terms of the Offer, or if it waives a material condition to the Offer, the Purchaser will extend the Offer and disseminate additional tender offer materials to the extent required by Rules 14d-4(c) and 14d-6(d) under the Exchange Act. The minimum period during which an offer must remain open following material changes in the terms of the offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances, including, without limitation, the materiality of the changes. With respect to a change in price or, subject to certain limitations, a change in the percentage of securities sought, a minimum ten business day period from the date of such change is generally required to allow for adequate dissemination to shareholders. Accordingly, if prior to the Expiration Date, the Purchaser decreases the number of Shares being sought, or increases or decreases the consideration offered pursuant to the Offer, and if the Offer is scheduled to expire at any time earlier than the period ending on the tenth business day from the date that notice of such increase or decrease is first published, sent or given to holders of Shares, the Offer will be extended at least until the expiration of such ten business day period. For purposes of the Offer, a "business day" means any day other than a Saturday, Sunday or a federal holiday and consists of the time period from 12:01 a.m. through 12:00 midnight, Eastern time. A demand is being made to the Company pursuant to both Illinois law and Rule 14d-5 under the Exchange Act for the use of the Company's shareholder list and security position listings for the purpose of disseminating the Offer to holders of Shares and communicating with shareholders regarding proxy solicitations in connection with a meeting of shareholders. Upon compliance by the Company with such request, this Offer to Purchase and the related Letter of Transmittal and, if required, other relevant materials will be mailed to record holders of Shares whose names appear on the Company's shareholder list and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the list of holders of Shares, and the list of holders of Rights, if applicable, or who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of Shares and Rights. 2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of the Offer as so extended or amended), the Purchaser will purchase, by accepting for payment, and will pay for, all Shares validly tendered and not properly withdrawn (as permitted by Section 4) on or prior to the Expiration Date as soon as practicable after the later to occur of (i) the Expiration Date or (ii) the satisfaction or waiver of the conditions to the Offer set forth in the Introduction and in Sections 14 and 15. All questions as to the satisfaction of such terms and conditions will be determined by the Purchaser in its sole discretion, which determination will be final, conclusive and binding upon all parties. 7 See Sections 1, 14 and 15. In addition, subject to applicable rules of the Commission, the Purchaser expressly reserves the right to delay acceptance for payment of, or payment for, Shares pending receipt of any required regulatory or governmental approvals. Parent filed a Notification and Report form with respect to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations thereunder (the "HSR Act") on July 24, 1995. The waiting period under the HSR Act with respect to the Offer will expire at 11:59 p.m., New York City time, on August 8, 1995, unless early termination of the waiting period is granted. However, the Antitrust Division of the Department of Justice (the "Antitrust Division") or the Federal Trade Commission (the "FTC") may extend the waiting period by requesting additional information or documentary material from the Parent. If such a request is made, such a waiting period will expire at 11:59 p.m., New York City time, on the tenth day after substantial compliance by Parent with such request. See Section 15 for additional information concerning the HSR Act and the applicability of the antitrust laws to the Offer. In all cases, payment for Shares tendered and accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (i) Share Certificates for such Shares and, if applicable, Rights Certificates for the associated Rights, or timely confirmation (a "Book-Entry Confirmation") of the book-entry transfer of such Shares and, if applicable, Rights into the Depositary's account at The Depositary Trust Company, the Midwest Securities Trust Company and the Philadelphia Depositary Trust Company (collectively, the "Book-Entry Transfer Facilities") pursuant to the procedures set forth in Section 3, (ii) the Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or an Agent's Message (as defined herein) in connection with a book-entry transfer and (iii) any other documents required by the Letter of Transmittal. The term "Agent's Message" means a message transmitted by a 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 and, if applicable, the Rights 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 the Purchaser may enforce such agreement against such participant. Unless and until the Purchaser declares that the Rights Condition is satisfied, if Rights Certificates have been distributed to holders of Shares, such holders are required to tender, or make book-entry transfer of, Rights Certificates representing a number of Rights equal to the number of Shares being tendered in order to effect a valid tender of such Shares. For purposes of the Offer, the Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when the Purchaser gives oral or written notice to the Depositary of the Purchaser's acceptance of such Shares for payment pursuant to the Offer. In all cases, upon the terms and subject to the conditions of the Offer, payment for Shares purchased pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary, which will act as agent for tendering shareholders for the purpose of receiving payment from the Purchaser and transmitting payment to validly tendering shareholders. UNDER NO CIRCUMSTANCES WILL INTEREST ON THE PURCHASE PRICE FOR SHARES AND RIGHTS BE PAID BY THE PURCHASER, REGARDLESS OF ANY DELAY IN MAKING SUCH PAYMENT. If, for any reason whatsoever, acceptance for payment of or payment for any Shares tendered pursuant to the Offer is delayed, or the Purchaser is unable to accept for payment or pay for Shares tendered pursuant to the Offer, then, without prejudice to the Purchaser's rights set forth herein, the Depositary may, nevertheless, on behalf of the Purchaser and subject to Rule 14e-l(c) under the Exchange Act, retain tendered Shares and such Shares may not be withdrawn except to the extent that the tendering shareholder is entitled to and duly exercises withdrawal rights as described in Section 4. 8 If any tendered Shares are not purchased pursuant to the Offer for any reason, or if Share Certificates are submitted representing more Shares than are tendered, Share Certificates representing unpurchased or untendered Shares will be returned, without expense to the tendering shareholder (or, in the case of Shares delivered by book-entry transfer into the Depositary's account at a Book-Entry Transfer Facility pursuant to the procedures set forth in Section 3, such Shares will be credited to an account maintained within such Book-Entry Transfer Facility), as promptly as practicable following the expiration, termination or withdrawal of the Offer. In the event separate Rights Certificates are issued, similar action will be taken with respect to unpurchased and untendered Rights. IF, PRIOR TO THE EXPIRATION DATE, THE PURCHASER SHALL INCREASE THE CONSIDERATION OFFERED TO HOLDERS OF SHARES PURSUANT TO THE OFFER, SUCH INCREASED CONSIDERATION SHALL BE PAID TO ALL HOLDERS OF SHARES THAT ARE PURCHASED PURSUANT TO THE OFFER, WHETHER OR NOT SUCH SHARES WERE TENDERED PRIOR TO SUCH INCREASE IN CONSIDERATION. The Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to Parent, or to one or more of Parent's subsidiaries or affiliates, the right to purchase all or any portion of the Shares and Rights tendered pursuant to the Offer, but any such transfer or assignment will not relieve the Purchaser of its obligations under the Offer or prejudice the rights of tendering shareholders to receive payment for Shares validly tendered and accepted for payment pursuant to the Offer. 3. PROCEDURES FOR TENDERING SHARES AND RIGHTS Valid Tender of Shares and Rights Except as set forth below, in order for Shares and (prior to the Distribution Date) Rights to be validly tendered pursuant to the Offer, the Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or an Agent's Message in connection with a book-entry delivery of Shares and (prior to the Distribution Date) Rights, and any other documents required by the Letter of Transmittal must be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase on or prior to the Expiration Date and either (i) Share Certificates and, if applicable, Rights Certificates representing tendered Shares and Rights must be received by the Depositary, or such Shares and Rights must be tendered pursuant to the procedure for book- entry transfer set forth below and Book-Entry Confirmation must be received by the Depositary, in each case on or prior to the Expiration Date, or (ii) the guaranteed delivery procedures set forth below must be complied with. IF THE PURCHASER DECLARES THAT THE RIGHTS CONDITION IS SATISFIED, THE PURCHASER WILL NOT REQUIRE DELIVERY OF RIGHTS. UNLESS AND UNTIL THE PURCHASER DECLARES THAT THE RIGHTS CONDITION IS SATISFIED, HOLDERS OF SHARES WILL BE REQUIRED TO TENDER ONE ASSOCIATED RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SUCH SHARE. ACCORDINGLY, SHAREHOLDERS WHO SELL THEIR RIGHTS SEPARATELY FROM THEIR SHARES AND DO NOT OTHERWISE ACQUIRE RIGHTS MAY NOT BE ABLE TO SATISFY THE REQUIREMENTS OF THE OFFER FOR THE TENDER OF SHARES. Separate Delivery of Rights Certificates If the Distribution Date does not occur prior to the Expiration Date, a tender of Shares will also constitute a tender of the associated Rights. If the Distribution Date occurs and Rights Certificates are distributed to holders of Shares prior to the time a holder's Shares are purchased pursuant to the Offer, in order for Rights (and the corresponding Shares) to be validly tendered, Rights Certificates representing a number of Rights equal to the number of Shares tendered must be delivered to the Depositary or, if available, a Book- Entry Confirmation received by the Depositary with respect thereto. If the Distribution Date occurs and Rights Certificates are not distributed prior to the time Shares are purchased pursuant to the Offer, Rights may be tendered prior to a shareholder receiving Rights Certificates by use of the guaranteed delivery procedure described below. In any case, a tender of Shares constitutes an agreement by the tendering shareholder to deliver Rights Certificates representing a number of Rights equal to the number of Shares 9 tendered pursuant to the Offer to the Depositary within five business days after the date Rights Certificates are distributed. The Purchaser reserves the right to require that the Depositary receive Rights Certificates, or a Book- Entry Confirmation, if available, with respect to such Rights, prior to accepting the related Shares for payment pursuant to the Offer if the Distribution Date occurs prior to the Expiration Date. THE METHOD OF DELIVERY OF SHARE CERTIFICATES, RIGHTS CERTIFICATES (IF APPLICABLE), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING, WITHOUT LIMITATION, DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND SOLE RISK OF THE TENDERING SHAREHOLDER, AND THE 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. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. Book-Entry Transfer The Depositary will make a request to establish accounts with respect to the Shares at each of the Book-Entry Transfer Facilities for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the system of any Book-Entry Transfer Facility may make book-entry delivery of Shares by causing such Book- Entry Transfer Facility to transfer such Shares into the Depositary's account at such Book-Entry Transfer Facility in accordance with such Book-Entry Transfer Facility's procedures for such transfer. However, although delivery of Shares may be effected through book-entry transfer into the Depositary's account at a Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or an Agent's Message in connection with a book- entry transfer, and any other required documents must, in any case, be transmitted to and received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase on or prior to the Expiration Date, or the guaranteed delivery procedure set forth below must be complied with. If the Distribution Date occurs, to the extent that the Rights become eligible for book-entry transfer under procedures established by a particular Book-Entry Transfer Facility, the Depositary will also make a request to establish an account with respect to the Rights at each of the Book-Entry Transfer Facilities, but no assurance can be given that book-entry delivery of Rights will be available. If book-entry delivery of Rights is available, the foregoing book-entry transfer procedures will also apply to Rights. Otherwise, if Rights Certificates have been issued, a tendering shareholder will be required to tender Rights by means of physical delivery to the Depositary of Rights Certificates (in which event references in this Offer to Purchase to Book-entry Confirmations with respect to Rights will be inapplicable) or pursuant to the guaranteed delivery procedure set forth below. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. Signature Guarantees Signatures on all Letters of Transmittal must be guaranteed by a firm that is a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (an "Eligible Institution"), unless the Shares and Rights tendered thereby are tendered (i) by a registered holder of Shares and Rights who has not completed either the box labeled "Special Payment Instructions" or the box labeled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution. See Instruction I of the Letter of Transmittal. If the Share Certificates or Rights Certificates are registered in the name of a person or persons other than the signer of the Letter of Transmittal, or if payment is to be made to, or Share Certificates or Rights Certificates for unpurchased Shares or Rights are to be issued or returned to, a person other than the 10 registered holder, then the tendered certificates must be endorsed or accompanied by appropriate stock powers, signed exactly as the name or names of the registered holder or holders appear on the certificates, with the signatures on the certificates or stock powers guaranteed by an Eligible Institution as provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of Transmittal. If the Share Certificates and Rights Certificates are forwarded separately to the Depositary, a properly completed and duly executed Letter of Transmittal (or facsimile thereof) must accompany each such delivery. Guaranteed Delivery If a shareholder desires to tender Shares and Rights pursuant to the Offer and such shareholder's Share Certificates or, if applicable, Rights Certificates are not immediately available (including, if the Distribution Date has occurred, because Rights Certificates have not yet been distributed) or time will not permit all required documents to reach the Depositary on or prior to the Expiration Date, or the procedures for Book-entry transfer cannot be completed on a timely basis, such Shares or Rights may nevertheless be tendered if all of the following guaranteed delivery procedures are duly complied with: (i) such tender is made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by the Purchaser, is received by the Depositary, as provided below, on or prior to the Expiration Date; and (iii) the Share Certificates and Rights Certificates (or a Book-Entry Confirmation) representing all tendered Shares and Rights, in proper form for transfer together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees (or, in the case of a book-entry transfer, an Agent's Message) and any other documents required by the Letter of Transmittal are received by the Depositary within (a) in the case of Shares, five New York Stock Exchange, Inc. ("NYSE") trading days after the date of execution of such Notice of Guaranteed Delivery or (b) in the case of Rights, a period ending on the later of (1) five NYSE trading days after the date of execution of such Notice of Guaranteed Delivery or (2) five business days after the date Rights Certificates are distributed to shareholders. The Notice of Guaranteed Delivery may be delivered by hand or mail or transmitted by facsimile transmission to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in such Notice of Guaranteed Delivery and a representation that the shareholder on whose behalf the tender is being made is deemed to own the Shares and, if applicable, Rights being tendered within the meaning of Rule 14e-4 under the Exchange Act. Notwithstanding any other provision hereof, payment for Shares accepted for payment pursuant to the Offer will in all cases be made only after timely receipt by the Depositary of Share Certificates for, or of Book-Entry Confirmation with respect to, such Shares, and if the Distribution Date has occurred, Rights Certificates for, or a Book-Entry Confirmation, if available, with respect to, such Rights (unless the Purchaser elects, in its sole discretion, to make payment for such Shares pending receipt of the Rights Certificates for, or a Book-Entry Confirmation, if available, with respect to, such Rights), a properly completed and duly executed Letter of Transmittal (or facsimile thereof), together with any required signature guarantees (or, in the case of a book-entry transfer, an Agent's Message) and any other documents required by the Letter of Transmittal. Accordingly, payment might not be made to all tendering shareholders at the same time, and will depend upon when Share Certificates (or Rights Certificates) are received by the Depositary or Book- Entry Confirmations of such Shares (or Rights, if available) are received into the Depositary's account at a Book-Entry Transfer Facility. If the Rights Condition is satisfied, the guaranteed delivery procedure with respect to Rights Certificates and the requirement for the tender of Rights will no longer apply. 11 Backup Federal Income Tax Withholding UNDER THE FEDERAL INCOME TAX LAWS APPLICABLE TO CERTAIN SHAREHOLDERS INCLUDING, AMONG OTHERS, ALL CORPORATIONS AND CERTAIN FOREIGN INDIVIDUALS, THE DEPOSITARY MAY BE REQUIRED TO WITHHOLD 31% OF THE AMOUNT OF ANY PAYMENTS MADE TO SUCH SHAREHOLDERS PURSUANT TO THE OFFER. TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING WITH RESPECT TO PAYMENT TO CERTAIN TENDERING SHAREHOLDERS OF THE PURCHASE PRICE OF SHARES PURCHASED PURSUANT TO THE OFFER, EACH SUCH SHAREHOLDER MUST PROVIDE THE DEPOSITARY WITH SUCH SHAREHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER AND CERTIFY THAT SUCH SHAREHOLDER IS NOT SUBJECT TO BACKUP FEDERAL INCOME TAX WITHHOLDING BY COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL. SEE INSTRUCTION 9 OF THE LETTER OF TRANSMITTAL. Appointment as Proxy By executing the Letter of Transmittal, a tendering shareholder irrevocably appoints designees of the Purchaser, and each of them, as such shareholder's attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of such shareholder's rights with respect to the Shares and, if applicable, Rights tendered by such shareholder and accepted for payment by the Purchaser and with respect to any and all other Shares or Rights and other securities or rights issued or issuable in respect of such Shares and Rights on or after the date of this Offer to Purchase. All such powers of attorney and proxies shall be considered irrevocable and coupled with an interest in the tendered Shares and Rights. Such appointment will be effective upon the acceptance for payment of such Shares and Rights by the Purchaser in accordance with the terms of the Offer. Upon such acceptance for payment, all other powers of attorney and proxies given by such shareholder with respect to such Shares, Rights, and such other securities or rights prior to such payment will be revoked, without further action, and no subsequent powers of attorney and proxies nor any subsequent written consents executed may be given by such shareholder (and, if given or executed, will not be deemed effective). The designees of the Purchaser will, with respect to the Shares and Rights and such other securities and rights for which such appointment is effective, be empowered to exercise all voting and other rights of such shareholder as they, in their sole discretion, may deem proper at any annual or special meeting of the Company's shareholders, or any adjournment or postponement thereof, or by consent in lieu of any such meeting or otherwise. In order for Shares and Rights to be deemed validly tendered, immediately upon the acceptance for payment of such Shares and Rights, the Purchaser or its designee must be able to exercise full voting rights with respect to such Shares, Rights and other securities, including, without limitation, voting at any meeting of shareholders. The foregoing proxies are effective only upon acceptance for payment of Shares pursuant to the Offer. The Offer does not constitute a solicitation of proxies, absent a purchase of Shares, for any meeting of the Company's shareholders, which would be made only pursuant to separate proxy solicitation materials complying with the Exchange Act. Determination of Validity All questions as to the form of documents and the validity, eligibility (including, without limitation, time of receipt) and acceptance for payment of any tender of Shares or Rights will be determined by the Purchaser, in its sole discretion, whose determination shall be final, conclusive and binding upon all parties. The Purchaser reserves the absolute right to reject any or all tenders determined by it not to be in proper form or the acceptance of or payment for which may, in the opinion of Debevoise & Plimpton ("Purchaser's Counsel"), be unlawful. The Purchaser also reserves the absolute right to waive any of the conditions of the Offer or any defect or irregularity in any tender of Shares or Rights of any particular shareholder whether or not similar defects or irregularities are waived in the case of other shareholders. The Purchaser's interpretation of the terms and conditions of the Offer (including, without limitation, the Letter of Transmittal and the instructions thereto) will be final, conclusive and binding upon all parties. No tender of Shares or Rights will be deemed to have been validly made until all defects and irregularities 12 with respect to such tender have been cured or waived. None of Parent, the Purchaser or any of their respective affiliates or assigns, the Dealer Manager, the Depositary, the Information Agent or any other person or entity will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Other Requirements The Purchaser's acceptance for payment of Shares and, if applicable, Rights tendered pursuant to any of the procedures described above will constitute a binding agreement between the tendering shareholder and the Purchaser upon the terms and subject to the conditions of the Offer, including the tendering shareholder's representation and warranty that the shareholder is the holder of the Shares within the meaning of, and that the tender of the Shares and Rights complies with, Rule 14e-4 under the Exchange Act. 4. WITHDRAWAL RIGHTS Except as otherwise provided in this Section 4, tenders of Shares and Rights made pursuant to the Offer are irrevocable. Shares and Rights tendered pursuant to the Offer may be withdrawn at any time on or prior to the Expiration Date and, unless theretofore accepted for payment by the Purchaser as provided herein, may also be withdrawn at any time after September 21, 1995, (or such later date as may apply in case the Offer is extended). A withdrawal of Shares will also constitute a withdrawal of the associated Rights. Rights may not be withdrawn unless the associated Shares are also withdrawn. If, for any reason whatsoever, acceptance for payment of any Shares and Rights tendered pursuant to the Offer is delayed, or the Purchaser is unable to accept for payment or pay for Shares and Rights tendered pursuant to the Offer, then, without prejudice to the Purchaser's rights set forth herein, the Depositary may, nevertheless, on behalf of the Purchaser, retain tendered Shares and Rights and such Shares and Rights may not be withdrawn except to the extent that the tendering shareholder is entitled to and duly exercises withdrawal rights as described in this Section 4. Any such delay will be by an extension of the Offer to the extent required by law. In order for a withdrawal to be effective, a written or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares and Rights to be withdrawn, the number of Shares and Rights to be withdrawn, and (if Share Certificates and Rights Certificates have been tendered) the name of the registered holder of the Shares and Rights as set forth in the Share Certificate and Rights Certificate, if different from that of the person who tendered such Shares and Rights. If Share Certificates and Rights Certificates have been delivered or otherwise identified to the Depositary, then prior to the physical release of such certificates, the tendering shareholder must submit the serial numbers shown on the particular certificates evidencing the Shares and Rights to be withdrawn and the signature on the notice of withdrawal must be guaranteed by an Eligible Institution, except in the case of Shares and Rights tendered for the account of an Eligible Institution. If Shares and Rights have been tendered pursuant to the procedures for book-entry transfer set forth in Section 3, the notice of withdrawal must specify the name and number of the account at the appropriate Book-Entry Transfer Facility to be credited with the withdrawn Shares and Rights, in which case a notice of withdrawal will be effective if delivered to the Depositary by any method of delivery described in the first sentence of this paragraph. Withdrawals of Shares and Rights may not be rescinded. Any Shares and Rights properly withdrawn will be deemed not validly tendered for purposes of the Offer, but may be retendered at any subsequent time prior to the Expiration Date by following any of the procedures described in Section 3. All questions as to the form and validity (including, without limitation, time of receipt) of notices of withdrawal will be determined by the Purchaser, in its sole discretion, whose determination shall be final, conclusive and binding upon all parties. None of Parent, the Purchaser or any of their respective affiliates or assigns, the Dealer Manager, the Depositary, the Information Agent or any other person or entity will be 13 under any duty to give any notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES The summary of tax consequences set forth below is for general information only and is based on the law as currently in effect. The tax treatment of each shareholder will depend in part upon such shareholder's particular situation. The receipt of cash for Shares pursuant to the Offer or the Proposed Merger will be a taxable transaction for federal income tax purposes and may also be a taxable transaction under applicable state, local, foreign and other tax laws. For federal income tax purposes under the Internal Revenue Code of 1986, as amended, each selling or exchanging shareholder would generally recognize gain or loss equal to the difference between the amount of cash received and such shareholder's tax basis for the sold or exchanged Shares. For federal income tax purposes, such gain or loss will be capital gain or loss (assuming the Shares are held as a capital asset by such shareholder) and any such capital gain or loss will be long term if, as of the date the Purchaser accepts the Shares for payment pursuant to the Offer or the effective date of the Proposed Merger, as the case may be, the Shares were held for more than one year or will be short term if, as of such date, the Shares were held for one year or less. If a redemption of the Rights occurs prior to the Distribution Date, the amount distributed should be treated as a dividend. The tax consequences of a redemption occurring after the Distribution Date are unclear, and each holder should consult his or her own tax adviser. If the sale of Shares and Rights occurs after the Distribution Date, the cash received should be allocated between the Share and Rights based upon their relative fair market values, and gain (or loss) should be computed separately with respect to Shares and Rights as described above. The foregoing discussion may not be applicable to certain types of shareholders, including, without limitation, shareholders who acquired Shares pursuant to the exercise of employee stock options or otherwise as compensation, individuals who are not citizens or residents of the United States and foreign corporations, or entities that are otherwise subject to special tax treatment under the Internal Revenue Code of 1986, as amended (such as insurance companies, tax-exempt entities and regulated investment companies). A bill recently passed the United States House of Representatives and is pending before the United States Senate to reduce the effective tax rates applicable to net long-term capital gains. These proposals would apply generally to transactions effected after December 31, 1994. In addition, for taxable years beginning after December 31, 1995, the proposals would further limit the deduction for long-term capital losses. Therefore, if these proposals were enacted into law, gains from the sale or conversion of Shares pursuant to the Offer or the Proposed Merger which constituted long-term capital gains would generally be taxed at reduced effective tax rates. However, there can be no assurance that these or other proposals will be enacted and, if enacted, the effective dates of the proposals or the particular type of transactions or assets to which the proposals apply could be modified. If the proposals were enacted with an effective date subsequent to the Expiration Date of the Offer, the sale or conversion of Shares pursuant to the Offer or the Proposed Merger which constituted long-term capital gains would be taxed at the higher rates currently in effect. Shareholders of the Company should consult their tax advisors about the impact of this proposed legislation. THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY. EACH SHAREHOLDER IS URGED TO CONSULT SUCH SHAREHOLDER'S TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES TO SUCH SHAREHOLDER OF THE OFFER AND PROPOSED MERGER, INCLUDING, WITHOUT LIMITATION, THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS. 6. PRICE RANGE OF THE SHARES AND RIGHTS; DIVIDENDS According to the Company's 1994 10-K, the Shares are listed and traded on the NASDAQ National Market System (the "NASDAQ-NMS") under the symbol "JOSL". The following table sets forth, for fiscal 14 years 1993 and 1994, the high and low bid market price quotations for the Shares as reported in the Company's 1994 10-K and the cash dividends per common share, and for fiscal year 1995 the high and low sales prices for the Shares on the NASDAQ-NMS as reported by published financed sources and the cash dividends per common share. JOSLYN CORPORATION
CASH HIGH LOW DIVIDENDS ---- ---- --------- FISCAL YEAR ENDED DECEMBER 31, 1993 First Quarter....................................... $ 27 $23 1/4 $.29 Second Quarter...................................... 28 22 1/2 .29 Third Quarter....................................... 27 1/2 24 3/4 .29 Fourth Quarter...................................... 25 23 1/2 .29 FISCAL YEAR ENDED DECEMBER 31, 1994 First Quarter....................................... $ 25 1/4 $22 3/4 $.30 Second Quarter...................................... 25 23 .30 Third Quarter....................................... 31 25 .30 Fourth Quarter...................................... 27 24 3/4 .30 FISCAL YEAR ENDED DECEMBER 31, 1995 First Quarter....................................... $ 27 3/4 $24 1/2 $.30 Second Quarter...................................... 26 1/2 24 1/2 .30 Third Quarter (through July 21, 1995)............... 35 1/4 24 3/4 .30
On July 7, 1995, the last full day of trading prior to the delivery of the letter proposing the acquisition of the Company by Parent (as set forth in Section 10), the closing sales price on the NASDAQ-NMS for the Shares was $24 3/4 per Share. On July 21, 1995, the last full day of trading prior to the announcement of the Offer, the closing sales price on the NASDAQ-NMS for the Shares was $35 per Share. SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES. The Purchaser believes, based upon publicly available information, that as of the date of the Offer, all Rights are attached to the associated Shares and are not traded separately. Upon the occurrence of the Distribution Date, the Rights are to detach, and may trade separately, from the Shares. See Section 11. As a result of the announcement by the Purchaser of the Offer, the Purchaser believes that the Distribution Date will be August 7, 1995 unless prior to such date the Company's Board of Directors redeems the Rights or takes action to delay the Distribution Date. The Distribution Date may also occur sooner. See Section 11. IF THE DISTRIBUTION DATE OCCURS AND THE RIGHTS BEGIN TO TRADE SEPARATELY FROM THE SHARES, SHAREHOLDERS ARE ALSO URGED TO OBTAIN A CURRENT MARKET QUOTATION, IF ANY, FOR THE RIGHTS. 7. POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE SHARES AND RIGHTS; STOCK EXCHANGE LISTING, EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS Possible Effects of the Offer on the Market for the Shares and Rights The purchase of Shares pursuant to the Offer will reduce the number of Shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining Shares held by the public. The purchase of Shares pursuant to the Offer can also be expected to reduce the number of holders of Shares. The Purchaser cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect on the market price for or marketability of the Shares or whether it would cause future market prices to be greater or less than the Offer price therefor. 15 Stock Exchange Listing The Shares are currently listed and traded on the NASDAQ-NMS, which constitutes the principal trading market for the Shares. Depending upon the subsequent aggregate market value of Shares not purchased pursuant to the Offer, the Shares may no longer meet the standards for continuing inclusion in the NASDAQ-NMS, which requires that an issuer have at least 200,000 publicly held shares, held by at least 400 shareholders or 300 shareholders of round lots, with a market value of at least $1,000,000. If these standards were not met, quotations might continue to be published by the National Association of Securities Dealers, Inc. ("NASD") in the over-the-counter "additional list" or in one of the "local lists," but if the number of holders of Shares falls below 300, the number of publicly held Shares falls below 100,000, or there are not at least two market makers for the Shares, NASD rules provide that the Shares may no longer be "authorized" for quotation by the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), and NASDAQ may cease to provide any quotations on any such lists. Shares held directly or indirectly by any officer or director of the Company or by a beneficial owner of more than 10% of the Shares will ordinarily not be considered as being publicly held for purposes of calculating NASDAQ-NMS and NASDAQ minimum listing requirements. According to the Company's 1994 10-K, as of December 31, 1994, there were 3,075 holders of record of the Shares and, as of March 1, 1995, there were 7,160,819 Shares outstanding. If, as a result of the purchase of Shares pursuant to the Offer or otherwise, the Shares no longer meet the requirements of NASDAQ-NMS for continued listing and the listing of the Shares is discontinued on NASDAQ-NMS, the market for and trading in the Shares could be adversely affected. In the event the Shares are no longer eligible for NASDAQ quotation, quotations might still be available from other sources. The extent of the public market for the Shares and availability of such quotations would, however, depend upon the number of holders of the Shares remaining at the time, the interest in maintaining a market in the Shares on the part of securities firms, the possible termination of registration of the Shares under the Exchange Act, as described below, and other factors. The Purchaser cannot predict whether the reduction in the number of Shares that might otherwise trade, or the termination of registration of outstanding Shares under the Exchange Act, would have an adverse effect on the market price for or the marketability of the Shares. Exchange Act Registration The Shares are currently registered under the Exchange Act. Registration of the Shares may be terminated upon application by the Company to the Commission if the Shares are not listed on a "national securities exchange" or quoted on NASDAQ and there are fewer than 300 record holders of Shares. According to the Company's 1994 10-K, as of December 31, 1994, the number of record holders was not below 300. The purchase of the Shares pursuant to the Offer may result in the Shares becoming eligible for deregistration under the Exchange Act. Termination of registration of the Shares under the Exchange Act would substantially reduce the information required to be furnished by the Company to its shareholders and the Commission and would make certain provisions of the Exchange Act, such as the short-swing profit recovery provisions of Section 16(b) and the requirements of furnishing a proxy statement in connection with shareholders' meetings pursuant to Section 14(a) or 14(c) and the related requirement of an annual report, no longer applicable to the Company. If the Shares are no longer registered under the Exchange Act, the requirements of Rule 13e-3 under the Exchange Act with respect to "going private" transactions would no longer be applicable to the Company. Furthermore, the ability of "affiliates" of the Company and persons holding "restricted securities" of the Company to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended, may be impaired or, with respect to certain persons, eliminated. If registration of the Shares under the Exchange Act were terminated, the Shares would no longer be "margin securities" or be eligible for NASDAQ reporting. The Purchaser believes that the purchase of the Shares pursuant to the Offer may result in the Shares becoming eligible for deregistration under the Exchange Act. 16 It would be the intention of the Purchaser to cause the Company to make an application for termination of registration of the Shares as soon as possible after successful completion of the Offer, if the Shares are then eligible for such termination. Based upon publicly available information, the Purchaser believes that, as of the date of this Offer to Purchase, the Rights are registered under the Exchange Act, but are attached to the Shares and are not separately transferable. As a result of the announcement by the Purchaser of the Offer, the Purchaser believes that the Distribution Date will be August 7, 1995 unless, prior to such date, the Company's Board of Directors redeems the Rights or takes action to delay the Distribution Date. See Section 11. According to the Rights Agreement, as soon as practicable following the Distribution Date, Rights Certificates will be sent to all holders of Rights and thereafter the Rights Certificates will alone evidence the Rights. See Section 11. If the Distribution Date occurs and the Rights separate from the Shares, the foregoing discussion with respect to the effect of the Offer on the market for the Shares, stock exchange listing and Exchange Act registration would apply to the Rights in a similar manner. If registration of the Shares and the Rights is not terminated prior to the Proposed Merger, then the Shares and the Rights will cease to be eligible for listing on the NASDAQ-NMS and the registration of the Shares and the Rights under the Exchange Act will be terminated following the consummation of the Proposed Merger. Margin Regulations The Shares are currently "margin securities" under the regulations of the Board of Governors of the Federal Reserve System (the "Federal Reserve Board"), which have the effect, among other things, of allowing brokers to extend credit on the collateral of such Shares for the purpose of buying, carrying or trading in securities ("Purpose Loans"). Depending upon factors such as the number of record holders of the Shares and the number and market value of publicly held Shares, following the purchase of Shares pursuant to the Offer, the Shares might no longer constitute "margin securities" for purposes of the Federal Reserve Board's margin regulations and, therefore, could no longer be used as collateral for Purpose Loans made by brokers. In addition, if registration of the Shares under the Exchange Act were terminated, the Shares would no longer constitute "margin securities." 8. CERTAIN INFORMATION CONCERNING THE COMPANY The information concerning the Company contained in this Offer to Purchase, including financial information, has been taken from or based upon publicly available documents and records on file with the Commission and other public sources. The summary information concerning the Company in this Section 8 and elsewhere in this Offer to Purchase is derived from the Company's 1994 10-K and other publicly available information. The summary information set forth below is qualified in its entirety by reference to such reports (which may be obtained and inspected as described below) and should be considered in conjunction with the more comprehensive financial and other information in such reports (including, without limitation, management's discussion and analysis of results of operation and financial position) and other publicly available reports and documents filed by the Company with the Commission and other publicly available information. Although the Purchaser and Parent do not have any knowledge that would indicate that any statements contained herein based upon such reports are untrue in any material respect, neither the Purchaser nor Parent assumes any responsibility for the accuracy or completeness of the information contained therein, or for any failure by the Company to disclose events that may have occurred and may affect the significance or accuracy of any such information but which are unknown to the Purchaser and Parent. The Company is an Illinois corporation with its principal executive offices located at 30 South Wacker Drive, Chicago, IL 60606. The following description of the Company's business has been taken from the Company's 1994 10-K: The Company is a holding company for a number of subsidiaries which are engaged primarily in the manufacturing and supplying of electrical hardware, apparatus, protective equipment, air pressurization and dehydration products, and services used in the construction and maintenance of transmission and distribution facilities to electric power and telephone companies. The Company's 17 subsidiaries also manufacture and supply vacuum switchgear and electrical controls to commercial and industrial markets as well as protective equipment, connector backshells, and air and gas dehydration systems to aerospace and defense companies. On July 5, 1995, the Company filed with the Commission a current report on Form 8-K in which it described a press release issued by the Company on June 28, 1995 announcing its acquisition of all of the issued and outstanding common shares of Cyberex, Inc., a privately held company which is a maker of, among other things, uninterruptible power systems, static transfer switches, line voltage regulators, inverter/static switches, regulated rectifiers, and related power conditioning products. According to the press release, the total purchase price for the shares was $22 million. The selected financial information of the Company and its consolidated subsidiaries set forth below has been excerpted and derived from the Company's 1994 10-K, the Company's First Quarter 10-Q, the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1994 filed with the Commission pursuant to the Exchange Act and other publicly available information. The financial information set forth below is qualified in its entirety by reference to such reports and documents filed with the Commission and all of the financial statements and related notes contained therein. These reports and other documents may be examined and copies thereof may be obtained in the manner set forth herein. 18 JOSLYN CORPORATION SELECTED FINANCIAL INFORMATION (IN THOUSANDS, EXCEPT PER SHARE DATA)
3 MONTHS ENDED MAR. 31, FISCAL YEAR ENDED DEC. 31, ------------------------- ------------------------------- 1995 1994 (UNAUDITED) (UNAUDITED) 1994 1993(1) 1992 ------------ ----------- -------- -------- -------- INCOME STATEMENT DATA Net Sales.............. $ 56,523 $ 53,919 $216,177 $217,707 $217,889 Net Income (loss)...... 3,494 3,746 (11,180)(2) 14,870 14,308 Earnings (loss) per share................. .49 .53 (1.57) (2.10) 2.03 BALANCE SHEET DATA (at Period End) Total Assets........... $ 177,964 $ 160,432 $177,504 $162,282 $158,159 Working Capital........ 77,211 74,721 75,959 73,041 64,928 Total Shareholders' Eq- uity.................. 82,245 101,008 80,626 99,235 92,097
- -------- (1) The Company adopted SFAS No. 109, "Accounting for Income Taxes," in 1993 and elected to apply it retroactively to 1990. (2) Includes a charge of $35.0 million before taxes and $21.0 million after taxes for increased environmental reserves and a charge of $6.2 million before taxes and $4.1 million after taxes to write down two businesses and for costs related to the reduction of corporate expense (See Notes 6 and 10 to the Company's financial statements contained in the Company's 1994 10- K). On July 19, 1995, the Company issued a press release including the following information with respect to the quarter and the six month period ended June 30, 1995.
SIX MONTHS ENDED JUN. 30, --------------------------- 1995 1994 (UNAUDITED) (UNAUDITED) ------------- ------------ INCOME STATEMENT DATA Net Sales......................................... $ 114,069 $ 108,391 Net Income........................................ 7,714 7,102 Earnings per share................................ 1.08 1.00
The Company is subject to the information and reporting requirements of the Exchange Act and, in accordance therewith, is required to file periodic reports, proxy statements and other information with the Commission relating to its business, financial condition and other matters. Certain information, as of particular dates, concerning the Company's business, principal physical properties, capital structure, material pending legal proceedings, operating results, financial condition, directors and officers (including, without limitation, their remuneration and the stock options granted to them), the principal holders of the Company's securities, any material interests of such persons in transactions with the Company and certain other matters is required to be disclosed in proxy statements and annual reports distributed to the Company's shareholders and filed with the Commission. Such reports, proxy statements and other information may be inspected and copied at the Commission's public reference facilities at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and should also be available for inspection at the following regional offices of the Commission: 7 World Trade Center, New York, New York 10048 and 500 West Madison Street, Chicago, Illinois 60661-2511; and copies may be obtained by mail at prescribed rates from the principal office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy statements and other information should also be available for inspection at the offices of NASD at 33 Whitehall Street, New York, New York 10004. 9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT The Purchaser is a newly incorporated Delaware corporation and an indirect wholly owned subsidiary of Parent which to date has not conducted any business other than in connection with the Offer and the Proposed Merger. The principal executive offices of Parent and the Purchaser are located at 1250 24th Street, N.W., Suite 800, Washington, D.C. 20037. 19 Parent is a Delaware corporation which operates a variety of businesses through its wholly owned subsidiaries. These businesses are conducted in three business segments: Tools, Process/Environmental Controls and Transportation. Parent is the principal manufacturer of Sears, Roebuck and Co.'s Craftsman line and the National Automotive Parts Association line of mechanics' hand tools. Parent also manufactures Allen wrenches and Jacobs drill chucks and is a leading supplier of mechanics' hand tools through Matco Tools. In its Process/Environmental Controls segment, Parent is a leading producer of leak detection sensors for underground fuel storage tanks and motion, temperature, pressure and flow control devices. Parent's Transportation business manufactures wheel service equipment, diesel engine retarders and automotive air conditioning components which are sold under such brand names as Coats, Ammco and "Jake Brake." Parent has agreed to purchase 56% of the outstanding shares of Total Containment, Inc., a Delaware corporation ("Total Containment") which serves the environmental requirements of the retail petroleum industry. Subject to approval from the Board of Directors and public shareholders of Total Containment, Parent may also purchase the remaining 44% of such shares. If completed, the total cost to Parent of such purchases will be approximately $49 million. Approximately 34.3% of the outstanding common stock of Parent is beneficially owned by Equity Group Holdings ("EGH" and, together with Parent and the Purchaser, the "Purchaser Entities"), a District of Columbia general partnership of which Steven M. Rales and Mitchell P. Rales, each of whom is a director and executive officer of Parent and a director of Purchaser, are the general partners. Together with certain other shares of common stock which are beneficially owned by such individuals, such individuals beneficially own approximately 43.1% of the outstanding common stock of Parent. EGH is principally engaged in the business of investing in manufacturing companies, radio broadcasting, companies and publicly traded securities. The principal executive offices of EGH are located at 1250 24th Street, N.W., Suite 800, Washington, D.C. 20037. The name, citizenship, business address, present principal occupation or employment and five-year employment history of each of the directors and executive officers of the Purchaser and Parent are set forth in Schedule I hereto. Until immediately prior to the time the Purchaser will purchase Shares pursuant to the Offer, it is not anticipated that the Purchaser will have any significant assets or liabilities or engage in activities other than those incident to its formation and capitalization and the transactions contemplated by the Offer and the Proposed Merger. Because the Purchaser is a newly formed corporation and has minimal assets and capitalization, no meaningful financial information regarding the Purchaser is available. Parent is subject to the informational filing requirements of the Exchange Act and is required to file reports and other information with the Commission relating to its business, financial condition and other matters. Information, as of particular dates, concerning Parent's directors and officers, their remuneration, options granted to them, the principal holders of Parent's securities and any material interest of such persons in transactions with Parent is required to be described in proxy statements distributed to Parent's shareholders and filed with the Commission. Such reports, proxy statements and other information may be inspected and copies may be obtained from the offices of the Commission in the same manner as set forth with respect to information concerning the Company in Section 8. 20 Set forth below is a summary of certain consolidated financial information with respect to Parent and its subsidiaries excerpted or derived from the information contained in Parent's Annual Report on Form 10-K for the year ended December 31, 1994 ("Parent's 1994 10-K"), Parent's Quarterly Report on Form 10- Q for the quarter ended June 30, 1995 ("Parent's Second Quarter 10-Q") and from certain other financial information regarding Parent. More comprehensive financial information is included in the complete financial statements of Parent contained in Parent's 1994 10-K and Parent's Second Quarter 10-Q on file with the Commission, and such financial statements are incorporated herein by reference. DANAHER CORPORATION SELECTED FINANCIAL INFORMATION (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
6 MONTHS ENDED JUNE 30, FISCAL YEAR ENDED DEC. 31, ------------------------- ------------------------------- 1995 1994 (UNAUDITED) (UNAUDITED) 1994 1993 1992 ------------ ----------- ---------- ---------- -------- INCOME STATEMENT DATA Net Revenues.......... $ 767,996 $ 607,235 $1,288,684 $1,075,529 $955,518 Income before change in accounting principle (1)........ 49,068 33,794 81,650 53,749 31,601 Net Income............ 49,068 33,794 81,650 17,749 31,601 EARNINGS PER SHARE: Income before change in accounting principle (1)........ $ 0.82 $ 0.58 $ 1.40 $ .93 $ .55 Net Income............ 0.82 0.58 1.40 .31 .55 BALANCE SHEET DATA (at end of period) Total Assets.......... $ 1,221,294 $ 944,831 $1,134,941 $ 872,472 $769,815 Working Capital....... 43,954 72,424 (7,548) 42,398 17,614 Long-term debt........ 116,547 140,946 116,515 131,350 137,305 Total Shareholders' Equity............... 528,685 401,740 476,100 363,666 348,379
- -------- (1) On January 1, 1993, Parent adopted SFAS No. 106 requiring use of the accrual method for post-retirement benefits other than pensions. Parent, through its wholly owned subsidiary DH Holdings Corp., currently beneficially owns an aggregate of 613,550 Shares which it acquired on various dates from May 29, 1994 to October 6, 1994, for an aggregate cash consideration of $15,122,191. Except as set forth in this Offer to Purchase, none of the Purchaser Entities, or, to the best knowledge of any of the Purchaser Entities, any of the persons listed on Schedule I, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of the Company, including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of any securities of the Company, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies. Except as set forth in this Offer to Purchase, none of the Purchaser Entities, or, to the best knowledge of the Purchaser Entities, any of the persons listed on Schedule I, has had, since January 1, 1992, any business relationships or transactions with the Company or any of its executive officers, directors or affiliates that would require reporting under the rules of the Commission. Except as set forth in this Offer to Purchase, since January 1, 1992, there have been no contacts, negotiations or transactions between the Purchaser Entities, or their respective subsidiaries, or to the best knowledge of the Purchaser Entities, any of the persons listed on Schedule I, and the Company or its affiliates, concerning a merger, consolidation or acquisition, tender offer or other acquisition of securities, election of directors or a sale or other transfer of a material amount of assets. Except as set forth in this Offer 21 to Purchase, none of the Purchaser Entities or, to the best knowledge of the Purchaser Entities, any of the persons listed on Schedule I, beneficially owns any Shares or has effected any transactions in the Shares in the past 60 days. 10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY Between May 29, 1994 and August 1, 1994, Parent purchased an aggregate of 204,000 Shares at an average price per Share (excluding mark-ups or commissions) of $25.57 in open market purchases. On August 2, 1994, Parent purchased 329,500 Shares at a price per Share (excluding mark-ups or commissions) of $25.6875. As a result of this purchase, Parent became the beneficial owner of more than 5 percent of the outstanding shares of the Company's common stock, requiring Parent to file a Schedule 13D with the Commission to disclose its holdings in the Company's stock. On August 5, 1994, Parent purchased an additional 10,000 Shares at a price per Share (excluding mark-ups or commissions) of $25.8125. On August 12, 1994, Parent filed a Schedule 13D with the Commission. On October 6, 1994, Parent purchased an additional 70,000 Shares at a price per Share (excluding markups and commissions) of $26. In September, 1994 and March, 1995, Mr. Patrick W. Allender, Senior Vice President and Chief Financial Officer of Parent, and Mr. George M. Sherman, President and Chief Executive Officer of Parent, met with Mr. William E. Bendix, currently Chairman of the Board of the Company, and Mr. Lawrence G. Wolski, currently Acting Chief Executive Officer of the Company. The purpose of these meetings was for Parent, as a new large shareholder of the Company, to introduce itself to the Company's top management and to learn more about the Company and management's plans for it. In June of 1995, Mr. Allender called Mr. Wolski to discuss the Company's recent announcement of its planned acquisition of Cyberex, Inc. On June 30, 1995, Mr. Sherman called Mr. Bendix to inquire whether the Company might be receptive to an expression of interest by Parent in a business transaction between Parent and the Company. Mr. Bendix indicated that the Company viewed itself as an independent company in the future, but that he would discuss the issue with the rest of the Board members. On July 6, 1995, Mr. Bendix called Mr. Sherman and indicated that the Company would always be agreeable to meet with the Company's large shareholders to discuss the Company's future and the Company's reported results, but also that its directors believed in the Company's future as an independent company. Mr. Sherman, on behalf of Parent, asked for a meeting with the Company's officers and to be provided access to non-public information concerning the Company upon execution of a confidentiality agreement with the Company to assist Parent in evaluating its alternatives with respect to its investment in the Company, including a possible business combination. On July 7, 1995, Mr. Bendix responded to Mr. Sherman's request by indicating that the request would be considered by the Company's Board of Directors at its next meeting scheduled for July 19, 1995. On July 7, 1995, Mr. Sherman telephoned Mr. Bendix to inform him that Parent was interested in pursuing a business combination with the Company. In addition, Mr. Sherman read and telecopied the following letter to Mr. Bendix. 22 July 7, 1995 Mr. William E. Bendix Chairman of the Board Joslyn Corporation 30 South Wacker Drive Chicago, IL 60606 Dear Bill: As you know, Danaher Corporation has been an investor in Joslyn Corporation for over a year. We have been impressed with Joslyn's business, which complements businesses we are engaged in. When we spoke initially on June 30, 1995 and most recently on July 6 and 7, 1995, I told you that Danaher's management was reviewing what the alternatives might be with respect to our investment in Joslyn, and might consider discussing with Danaher's Board of Directors whether to explore a business combination with Joslyn. Danaher's management and Board of Directors has now decided to propose a business combination, and we hereby propose a combination of our companies' businesses in a transaction in which your stockholders would receive cash for each share of their common stock. Based on our review of publicly available information about Joslyn, we propose a price of $32 per share. We think the offer is the appropriate price based on publicly available information, but we would like to conduct a brief, highly focused due diligence investigation in order to explore whether a higher price could be justified. We believe that the transaction we are proposing represents a very attractive opportunity for your stockholders. The price we are offering represents a significant premium over today's closing market price of the Company's common stock--a price that, in our view, already reflects the fact that Danaher is a substantial owner of Joslyn's shares. Our offer is not subject to financing, but is subject to the taking of all necessary actions to eliminate the applicability of, or to satisfy, any anti- takeover or other defensive provisions contained in the applicable corporate statutes or in the Company's charter, by-laws and rights agreement. We are convinced that the combination of our companies will be of great benefit to Joslyn and its stockholders. We also believe that Joslyn's employees, customers and suppliers will benefit from the joining of the complementary strengths of our two companies. Our financial strength and the complementary nature of the businesses of our two companies enables us to move forward quickly to negotiate and to close an agreement. We are prepared to enter into immediate discussions with you and your directors, management and advisors to answer any questions you may have about our offer. We hope that you and your fellow directors will view this offer as we do - - an excellent opportunity for the stockholders of the Company to realize full value for their shares to an extent that is not available to them in the marketplace. We trust that Joslyn's Board of Directors will give our offer prompt and serious consideration and will not take any actions that would adversely affect your stockholders' ability to receive the benefits of our proposed transaction. Our sincere desire is to work together with you to reach agreement on a negotiated transaction which can be presented to your stockholders as the joint effort of the directors and managements of both companies. 23 As you can appreciate, it is important that we hear from you as promptly as practicable with respect to our offer. We look forward to hearing from you and to working together on this transaction. Sincerely, George M. Sherman On July 10, 1995, Mr. Bendix and Mr. Wolski telecopied the following letter to Mr. Sherman. July 10, 1995 Mr. George M. Sherman President and Chief Executive Officer Danaher Corporation 1250 24th Street, N.W.--Suite 800 Washington, D.C. 20037 Dear George: We have received your letter dated July 7, 1995 and have forwarded it to our board. Your proposal will be considered at our regularly scheduled meeting on July 19, 1995. Promptly after that meeting, we will either inform you of our board's response or give you an estimated date for such response. As you know, we have recently reconstituted our board. It is now comprised of a majority of independent directors and led by a non-executive chairman. We would not presume to pre-empt or predict their decision. It is not presumptuous, however, to offer the following observations: . In considering your proposal, the board will be weighing it against the excellent prospects of the Company on an independent, stand-alone basis as we begin to see the benefits of new programs which are now being implemented. Anticipated strong second quarter results and the Cyberex acquisition are but two examples. . Even if the board were to determine to abandon the Company's independent status and pursue a business combination, it would first select between a strategic merger and, as you have proposed, a change-in-control transaction. The next decision would be how to pursue such a transaction. In the absence of an unquestionably pre-emptive offer from Danaher, an exclusive negotiation over a change-in control transaction is not likely to occur because of the fiduciary duties of our directors. . The guiding principle for our directors will be the best interests of our stockholders. If they determine to pursue a transaction, the Company will do so vigorously. If they determine to continue down our independent path, the Company will pursue all appropriate defenses. Our board will give your proposal a thorough, careful and good faith review on the 19th. We will respond to you shortly after that meeting. Sincerely, William E. Bendix L.G. Wolski cc: Board of Directors of Joslyn Corporation 24 On July 19, 1995, Mr. Bendix and Mr. Wolski telecopied the following letter to Mr. Sherman. July 19, 1995 Mr. George M. Sherman President and Chief Executive Officer Danaher Corporation 1250 24th Street, N.W. - Suite 800 Washington, D.C. 20037 Dear George: As promised, the Board of Directors of Joslyn Corporation and our financial advisor, Goldman, Sachs & Co., have reviewed your company's proposal to acquire Joslyn for $32 per share. The Board has unanimously concluded that entering into merger discussions with you or providing confidential information to you is not in the best interests of Joslyn's shareholders. In reaching this conclusion, the Board has considered, among other things, Joslyn's prospects as an independent company and the implications of its new growth strategy, its financial analysis and the analysis presented by Goldman, Sachs & Co. as well as other alternatives available to Joslyn. Sincerely, William E. Bendix Lawrence G. Wolski cc: Board of Directors of Joslyn Corporation On July 23, 1995, George M. Sherman, the President and Chief Executive Officer of Parent, telephoned Mr. Bendix to inform him that the Offer would commence on July 24. On July 24, 1995, the Purchaser commenced the Offer and Mr. Sherman called Mr. Wolski, the Acting Chief Executive Officer of the Company, and summarized Parent's press release as to the commencement of the Offer and the commencement of the litigation described below. Parent also, on July 24, telecopied to the Company a copy of Parent's press release and of the following letter from Mr. Sherman to Mr. Bendix. July 24, 1995 Mr. William E. Bendix Chairman of the Board Joslyn Corporation 30 South Wacker Drive Chicago, IL 60606 Dear Bill: As you know, Danaher Corporation has expressed to you on several occasions our interest in entering into a business combination with Joslyn Corporation (the "Company"). On July 7, 1995, Danaher proposed to you a business combination transaction in which the Company's shareholders would receive $32 in cash for each share of common stock. In the course of our conversations, we requested access to non-public information concerning the Company, under an appropriate confidentiality agreement, so that we could explore whether a higher price would be justified. By your letter dated July 19, you informed us that the Company's directors had concluded that entering into merger discussions with Danaher or providing confidential information to Danaher is not in the best interests of the Company's shareholders. 25 We are disappointed by the Company's rejection of our proposal to negotiate a business combination transaction and to our request for access to information. We fail to see how it could be in the best interests of your shareholders to reject any further discussion with us. While we would have preferred to negotiate a transaction with you, we feel that you have left us no choice but to present a proposal directly to your shareholders. Accordingly, Danaher and TK Acquisition Corporation, an indirect wholly-owned subsidiary of Danaher, are today commencing a tender offer for all of the outstanding shares (and the associated common stock purchase rights) of the Company at a price of $32 net per share in cash. It is our intention to acquire any shares not purchased in the tender offer in a subsequent merger for the same cash consideration paid to shareholders in the tender offer. We would expect customary conditions for a transaction of this type; however, we have secured the financing necessary to fund our offer. We believe that an all cash price of $32 net per share for all shares presents a very attractive opportunity for the Company's shareholders. For the past three years, the Company's stock has generally traded in the low or mid- 20s. Our offer represents an approximately 30% premium over the closing price on the last trading day before our July 7 letter proposing to acquire the Company at $32 per share. In light of the attractive terms of our offer, we request that the Company's Board of Directors make appropriate determinations so that the common stock purchase rights and the restrictions provided in the Illinois Business Combination Law are rendered inapplicable to our tender offer and subsequent merger. We would expect that you will not take any other actions that would be detrimental to the interests of the shareholders. It is our hope that we can proceed to complete a transaction with a minimum of delay. Sincerely, George M. Sherman Also on July 24, 1995, the Purchaser commenced litigation against the Company in the United States District Court for the Northern District of Illinois seeking, among other things, a preliminary injunction (i) enjoining the operation of the provisions of the Rights Agreement purporting to require approval by the Continuing Directors for redeeming the Rights or taking certain actions with respect to the Rights and the Rights Agreement and (ii) enjoining the Company's Board of Directors from treating the tender of shares to Purchaser prior to its acceptance of such shares for purchase, the receipt of authorizations for the calling of a special meeting, and the obtaining of revocable proxies or consents to vote shares as vesting beneficial ownership of such shares in Purchaser for purposes of Section 7.85. In addition, Purchaser's lawsuit seeks, among other things, to prohibit the Board of Directors of the Company from breaching their fiduciary duties to the Company and its shareholders, through issuance of an order (i) compelling the Board of Directors of the Company to redeem the Rights or to make the Rights inapplicable to the Offer and the Proposed Merger; (ii) enjoining the Board of Directors of the Company from using Illinois' business combination statutes to interfere with or prevent Purchaser's Offer and Proposed Merger; (iii) compelling the Board of Directors of the Company to approve the Offer and the Proposed Merger for purposes of the Business Combination Law; (iv) declaring that no state laws other than those of Illinois that purport to regulate business combinations of the Company apply to Purchaser's Offer and Proposed Merger; (v) enjoining the Company from instituting proceedings in any other court or forum concerning or related to Purchaser's Offer and Proposed Merger and (vi) enjoining the Board of Directors of the Company from taking any other steps to interfere with or prevent Purchaser's Offer and Proposed Merger. Except as described in this Offer to Purchase (including Schedule I hereto), none of the Purchaser, Parent or, to the best knowledge of the Purchaser, any of the persons listed in Schedule I hereto, or any associate or majority owned subsidiary of the Purchaser, Parent or any of the persons so listed, beneficially owns any equity security of the Company, and none of the Purchaser, Parent or, to the best knowledge of the Purchaser, 26 any of the other persons referred to above, or any of the respective directors, executive officers or subsidiaries of any of the foregoing, has effected any transaction in any equity security of the Company during the past 60 days. The Purchaser and Parent disclaim beneficial ownership of any Shares owned by any pension plan of Parent or any affiliate thereof. Except as described in this Offer to Purchase, as of the date hereof, (a) there have not been any contracts, transactions or negotiations between the Purchaser or Parent, any of their respective subsidiaries or, to the best knowledge of the Purchaser, any of the persons listed in Schedule I hereto, on the one hand, and the Company or any of its directors, officers or affiliates, on the other hand, that are required to be disclosed pursuant to the rules and regulations of the Commission, and (b) none of the Purchaser, Parent or, to the best knowledge of the Purchaser, any of the persons listed in Schedule I hereto has any contract, arrangement, understanding or relationship with any person with respect to any securities of the Company. During the Offer, the Purchaser and Parent intend to have ongoing contacts and negotiations with the Company and its directors, officers and shareholders. Parent filed on July 24, 1995 with the FTC and the Antitrust Division a Premerger Notification and Report Form under the HSR Act with respect to the Offer. Accordingly, the waiting period under the HSR Act applicable to the Offer will expire at 11:59 P.M., New York City time, on August 8, 1995, unless prior to the expiration or termination of the waiting period, the FTC or the Antitrust Division extends the waiting period by requesting additional information from the Parent. If such a request is made, the waiting period applicable to the Offer will expire on the tenth calendar day after the date of substantial compliance by the Parent with such request. Thereafter, the waiting period may only be extended by court order. 11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY Purpose of the Offer The purpose of the Offer and the Proposed Merger is to acquire control of, and the entire equity interest in, the Company. The Purchaser currently intends, as soon as practicable following completion of the Offer, to propose and seek to have the Company consummate the Proposed Merger. The purpose of the Proposed Merger is to acquire all Shares not tendered and purchased pursuant to the Offer or otherwise. Pursuant to the Proposed Merger, each then outstanding Share (other than Shares owned by Parent or any of its wholly owned subsidiaries, Shares held in the treasury of the Company, and Shares held by shareholders who perfect appraisal rights under the Illinois Law) would be converted into the right to receive cash in the same amount as received per Share in the Offer, and the Company would become an indirect wholly owned subsidiary of Parent. Although the Purchaser will seek to have the Company consummate the Proposed Merger as soon as practicable after consummation of the Offer, if the Board of Directors of the Company opposes the Offer and the Proposed Merger, certain terms of the Rights, the Illinois Law, the Company's Certificate and the Company's Bylaws may affect the ability of the Purchaser to consummate the Offer, to obtain control of the Company and to effect the Proposed Merger. Accordingly, the timing of the consummation of the Offer and the Proposed Merger will depend on a variety of factors and legal requirements, the actions of the Board of Directors of the Company, the number of Shares (if any) acquired by the Purchaser pursuant to the Offer, and whether the Minimum Condition, the Rights Condition and the Business Combination Condition are satisfied or waived. Parent intends to continue to seek to negotiate with the Company with respect to its acquisition proposal. The Purchaser reserves the right to amend or terminate the Offer (including, without limitation, amending the purchase price) if such negotiations result in an agreement with the Company for the acquisition of the Company. See Section 14. Parent and the Purchaser reserve the right to acquire additional Shares following expiration of the Offer in open market purchases, through a tender offer, in privately negotiated transactions or otherwise. 27 THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY, CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO ANY SPECIAL MEETING OR OTHER MEETING OF THE COMPANY'S SHAREHOLDERS OR ANY ACTION IN LIEU THEREOF. ANY SUCH SOLICITATION WHICH PARENT OR THE PURCHASER MAY MAKE, WILL BE MADE ONLY PURSUANT TO SEPARATE PROXY SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF SECTION 14(A) OF THE EXCHANGE ACT, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER. Plans for the Company Parent does not have any current plans to dispose of any businesses or other assets of the Company or to effect any changes in its operations. If Parent acquires control of the Company, it intends to conduct a further review of the Company and its subsidiaries and their respective assets, businesses, corporate structure, capitalization, operations, properties, policies, management and personnel and to integrate the Company's principal subsidiaries into Parent's Process/Environmental Controls Group. After such review, it is possible that Parent might modify its current plans not to dispose of any businesses or other assets of the Company and not to effect any changes in the Company's operations other than as described above. The exact timing and details of the Proposed Merger will necessarily depend upon a variety of factors. Although the Purchaser currently intends to propose the Proposed Merger generally on the terms described in this Offer to Purchase, it is possible that as a result of substantial delays in the Purchaser's ability to effect such a transaction, information hereafter obtained by Parent or the Purchaser, the terms of existing debt of the Company, changes in general economic or market conditions or in the business of the Company or other currently unforeseen factors, such a transaction may not be so proposed, may be delayed or abandoned or may be proposed on different terms. In addition, if the Rights Condition or the Business Combination Condition is not satisfied and the Purchaser waives any such condition and consummates the Offer (which it is not obligated to do), it may be impossible or impractical to consummate the Proposed Merger, at least for a significant period of time. Accordingly, the Purchaser expressly reserves the right not to propose the Proposed Merger or to propose such a business combination on terms other than those described in this Offer to Purchase. Specifically, but without limitation, the Purchaser reserves the right to propose consideration in a merger or other business combination consisting of securities or other consideration different from those described in this Offer to Purchase and having a value more or less than the consideration described in this Offer to Purchase. Except as described in this Offer to Purchase, neither Parent nor the Purchaser has any current plans or proposals that would relate to or would result in (i) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries, (ii) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries, (iii) any change in the present Board of Directors or management of the Company, (iv) any material changes in the present capitalization or dividend policy of the Company, (v) any other material change in the Company's corporate structure or business, (vi) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association or (vii) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act. If the Offer is consummated as contemplated, the Purchaser will hold a majority of the Shares outstanding and will therefore hold sufficient Shares to approve the Proposed Merger. However, in light of the restrictions described below, there can be no assurance that the Proposed Merger will be proposed to shareholders of the Company or be consummated or as to the timing thereof. Nonetheless, if the Board of Directors of the Company redeems (or otherwise makes inapplicable) the Rights and approves the Offer and the Proposed Merger for purposes of the Business Combination Law, the Rights Condition and the Business Combination Condition would be satisfied. Neither Parent nor the Purchaser can give any assurance as to whether, as a result of information hereafter obtained by either Parent or the Purchaser, changes in general economic or market conditions or in 28 the business of the Company, or other presently unforeseen factors, the Proposed Merger will be submitted to the Company's shareholders or whether the Proposed Merger will be delayed or abandoned. Whether or not the Proposed Merger is consummated, Parent and the Purchaser reserve the right to acquire additional Shares following the expiration of the Offer through private purchases, market transactions, tender or exchange offers or otherwise on terms and at prices that may be more or less favorable than those of the Offer or, subject to any applicable legal restrictions, to dispose of any or all Shares acquired by Parent and the Purchaser. Statutory Requirements Board Approval; Shareholder Approval. Under the Illinois Law, except in the case of a short-form merger as described below, the Proposed Merger would require the approval of a majority of the members of the Company's Board of Directors prior to its submission to a vote of shareholders. However, the Company's By-Laws require the approval of 75% of the Board members for such a merger. In addition, Illinois Law requires the approval of the agreement of merger by the shareholders of the acquired corporation by the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote, except in the case of a short-form merger as described below. According to the Company's Certificate, the Shares are the only securities of the Company entitling the holders thereof to voting rights. Assuming that the Offer is consummated and that the Minimum Condition and the other conditions to the Offer are satisfied, the Purchaser will hold at least two-thirds of the Shares outstanding and will therefore hold sufficient Shares to ensure shareholder approval of the Proposed Merger. Illinois Law also provides that if a parent company owns at least 90% of the outstanding shares of each class of shares of a subsidiary, the parent company can effect a short-form merger with that subsidiary without the action of the Subsidiary's Board of Directors or the other shareholders of the subsidiary. Accordingly, if, as a result of the Offer or otherwise, the Purchaser acquires or controls the voting power of at least 90% of the Shares, the Purchaser could effect the Proposed Merger without prior notice to, or any action by, the Company's Board of Directors or any other shareholder of the Company. The Purchaser intends to take such action as may be necessary and lawful to secure control of the Board of Directors of the Company following the consummation of the Offer. In this connection, in the event that after the Minimum Condition is satisfied and the Offer is consummated, the Purchaser will control sufficient votes to replace the entire Board of Directors of the Company. In the event the Purchaser obtains control of the Company's Board of Directors, the Purchaser would expect to seek approval of the Proposed Merger as soon as practicable thereafter, consistent with the fiduciary obligations of the Board. As noted in the Introduction, in order to increase the likelihood that the Company and the Purchaser enter into the Proposed Merger, Parent and the Purchaser intend to commence a solicitation of appointments of Parent and the Purchaser as designated agents for the purpose of calling the Special Meeting at which, among other things, Parent and the Purchaser would propose that the holders of Shares (i) remove all of the incumbent directors of the Company, (ii) amend the Company's By-Laws to fix the number of directors of the Company at three and (iii) elect the nominees of the Purchaser to serve as the directors of the Company. The nominees of the Purchaser, if elected at the Special Meeting, intend, among other things, and subject to fulfillment of the fiduciary duties that they would have as directors of the Company, to approve the Offer and the Proposed Merger under sections 7.85 and 11.75 of the Illinois Law. THE OFFER IS CONDITIONED ON THE MINIMUM CONDITION BEING SATISFIED. Illinois Business Combination Law. The Proposed Merger, including, without limitation, the timing and details thereof, is subject to, among other things, the provisions of the Illinois Law, including, without limitation, the Business Combination Law. The terms of the two relevant Sections of the Business Combination Law are as follows: 29 SECTION 7.85 Section 7.85 of the Illinois Law provides that an Illinois corporation, such as the Company, may not engage in any "Business Combination" (defined to include a variety of transactions, including, without limitation, a merger) with any "Interested Shareholder" (defined for purposes of Section 7.85 as a person that directly or indirectly beneficially owns 10% or more of the corporation's outstanding voting stock), or any affiliate of an Interested Shareholder, at any time unless (i) either before or after the date such Interested Shareholder became an Interested Shareholder, two-thirds of the "Disinterested Directors" of such corporation ("Disinterested Director" being defined as a director who is (a) not an Interested Shareholder or an associate or affiliate thereof; (b) was a director at the time that the Interested Shareholder became an Interested Shareholder, or was recommended to the Board by a majority of Disinterested Directors, and (c) was not nominated for election as a director by an Interested Shareholder or an associate or affiliate thereof) approved the Business Combination, (ii) the Business Combination is approved by the holders of at least (a) 80% of the outstanding voting stock of the corporation and (b) a majority of the combined voting power of the corporation's voting stock which is not owned by the Interested Shareholder or its affiliates or associates, or (iii) the Business Combination meets certain "fair price" and "fair process" requirements, including the following: (a) the corporation's shareholders will receive consideration (in cash or the form principally used by the Interested Shareholder to acquire its position), in exchange for the common shares of the corporation held by them, which is at least equal to the greater of (x) the highest per share price paid by the Interested Shareholder or any of its affiliates or associates for the corporation's shares during the two years prior to first public announcement of the proposal of the Business Combination (the "Announcement Date") or in the transaction in which the person became an Interested Shareholder, whichever is higher, and (y) the fair market value of the corporation's shares on the first trading date after the Announcement Date or the date on which it was publicly announced that the person had become an Interested Shareholder, whichever is higher; (b) after the date the person becomes an Interested Shareholder and prior to consummation of the Business Combination, there shall have been no reduction in the annual rate of dividends paid on the corporation's common shares (unless approved by two-thirds of the Disinterested Directors) and the Interested Shareholder shall not have acquired additional voting shares (except as part of the transaction which resulted in its becoming an Interested Shareholder) or received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Corporation; and (c) a proxy or information statement describing the Business Combination must be mailed to public shareholders of the corporation at least 30 days prior to the consummation of the Business Combination. SECTION 11.75 Section 11.75 of the Illinois Law provides that an Illinois corporation, such as the Company, may not engage in any Business Combination with any "Interested Shareholder" (defined for purposes of Section 11.75 as a person that directly or indirectly, by itself or with or through any of the affiliates or associates, beneficially owns 15% or more of the corporation's outstanding voting stock) for three years after the date on which the Interested Shareholder becomes an Interested Shareholder, unless (i) prior to the date such Interested Shareholder became an Interested Shareholder, the board of directors of such corporation approved either the Business Combination or the transaction which resulted in the shareholder becoming an Interested Shareholder, (ii) upon consummation of the transaction which resulted in the shareholder becoming an Interested Shareholder, the Interested Shareholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding, for purposes of determining the number of shares outstanding, those shares held by (A) persons who are directors and also officers of the corporation and (B) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer) or (iii) on or subsequent 30 to the date the shareholder becomes an Interested Shareholder, the Business Combination is (a) approved by the board of directors of the corporation and (b) authorized at an annual or special meeting of shareholders by the affirmative vote of the holders of at least 66% of the outstanding voting stock of the Corporation which is not owned by the Interested Shareholder. The foregoing summary of the Business Combination Law does not purport to be complete and is qualified in its entirety by reference to the provisions of the Business Combination Law. THE OFFER IS CONDITIONED ON THE BUSINESS COMBINATION CONDITION BEING SATISFIED. The Rights The following description is based upon the Company's 8-A/A. All statements with respect to the Rights (as defined in the Introduction) and the Rights Agreement (as defined in the Introduction) are based solely upon the description of such Rights in the Company's 8-A/A. Although each of Parent and the Purchaser has no knowledge that any such information is untrue, neither Parent nor the Purchaser takes any responsibility for the accuracy or completeness of the information contained in the Company's 8-A/A, or for any failure by the Company to disclose events that may have occurred and may affect the significance or accuracy of any such information but which are unknown to Parent and the Purchaser. The summary of the Rights and Rights Agreement contained in this Offer to Purchase does not purport to be complete, and is qualified in its entirety by reference to the Company's 8-A/A and the exhibits thereto. On February 10, 1988, the Board of Directors of the Company declared a dividend distribution of one Right for each outstanding Share, to shareholders of record at the close of business on March 4, 1988, pursuant to the Rights Agreement. On September 2, 1994, the Rights Agreement was amended in certain respects. The discussion of the Rights that follows reflects the amendments to the Rights Agreement as originally adopted. Each Right entitles the registered holder to purchase from the Company one Share, at a purchase price of $60.00, subject to adjustment in certain circumstances (the "Purchase Price"), to be paid in cash. The description and terms of the Rights are set forth in the Rights Agreement. Initially, the Rights were attached to the certificates representing outstanding Shares, and no separate Rights Certificates were distributed. The Rights will separate from the Shares and a "Distribution Date" will occur upon the earlier of (i) ten (10) days following a public announcement that a person (an "Acquiring Person") (other than the Company, any subsidiary of the Company or any employee benefit plan of the Company or of any subsidiary of the Company), alone or together with affiliates and associates, has become the beneficial owner of 15% or more of the outstanding Shares or (ii) ten (10) business days (or such later date as may be determined by action of the Company's Board of Directors prior to such time as any person becomes an Acquiring Person) following the commencement of a tender offer or exchange offer the consummation of which would result in the beneficial ownership by a person or group (other than the Company, any subsidiary of the Company or any employee benefit plan of the Company or of any subsidiary of the Company) of 15% or more of the outstanding Shares. The first date of public announcement that an Acquiring Person has become such is referred to herein as the "Stock Acquisition Date". Certain inadvertent acquisitions will not result in a person's becoming an Acquiring Person if the person promptly divests itself of sufficient Shares. Until the Distribution Date, (a) the Rights will be evidenced by the Share certificates and will be transferred with and only with such Share certificates, (b) new Share certificates issued after March 4, 1988 will contain a legend incorporating the Rights Agreement by reference and (c) the surrender for transfer of any certificate for Shares will also constitute the transfer of the Rights associated with the Shares represented by such certificate. The Rights are not exercisable until the Distribution Date and will expire at the close of business on March 3, 1998, unless earlier redeemed by the Company as described below. As soon as practicable after the Distribution Date, Rights Certificates are to be mailed to holders of record of Shares as of the close of business on the Distribution Date and, thereafter, such separate Rights 31 Certificates alone will represent the Rights. All Shares issued prior to the Distribution Date are to be issued with Rights. Shares issued after the Distribution Date will be issued with Rights if such Shares are issued pursuant to the exercise of stock options or under an employee benefit plan, or upon conversion of securities issued after the adoption of the Rights Agreement. Except as otherwise determined by the Board of Directors, no other Shares issued after the Distribution Date will be issued with Rights. In the event (a "Flip-In Event") that a person becomes an Acquiring Person (unless pursuant to a transaction described in the immediately succeeding paragraph), each holder of a Right will thereafter have the right to receive, upon exercise of such Right, the then number of Shares for which a Right is exercisable upon the date on which a person has become an Acquiring Person at an adjusted purchase price per share equal to the greater of (i) 20% of the then current market price per share on the date on which a person became an Acquiring Person and (ii) the par value per Share. Notwithstanding the foregoing, following the occurrence of any Flip-In Event, all Rights held by any Acquiring Person (and its associates, affiliates and certain transferees) will be null and void. For example, assume that each Right not owned by an Acquiring Person (or its associates, affiliates and certain transferees) on the date of the Flip-In Event would entitle its holder to receive, upon exercise, one Share. If the then current market price per Share is $25, the holder of each valid Right would be entitled to purchase one Share for $5; i.e. at 20% of the then current market price. However, Rights are not exercisable following the occurrence of any Flip-In Event until such time as the Rights are no longer redeemable by the Company as set forth below. In the event (a "Flip-Over Event") that following the Stock Acquisition Date, (i) the Company is acquired in a share exchange or in a merger or consolidation in which the Company is not the surviving corporation or in which all or part of the outstanding Shares is changed into or exchanged for securities of any other person, cash or any other property or (ii) more than 50% of the Company's consolidated assets or earning power is sold or transferred to any person (other than the Company, any subsidiary of the Company or any employee benefit plan of the Company or of any subsidiary of the Company), each holder of a Right (except Rights that previously have been voided as set forth above) shall thereafter have the right to receive, upon exercise of the Right, such number of shares of common stock of the acquiring company as shall have a value equal to two times the exercise price of the Right. For this purpose, the exercise price of the Right is the Purchase Price multiplied by the number of Shares issuable upon exercise of a Right prior to the first occurrence of any Flip- Over Event (initially one). For example, assume that each Right not owned by the Acquiring Person (or its associates, affiliates and certain transferees) immediately prior to a Flip-Over Event would entitle its holder to receive, upon exercise, one Share at a Purchase Price of $60. If the then current market price per share of the Acquiring Person's common stock is $60, the holder of each valid Right would be entitled to receive two shares of the Acquiring Person's common stock for $60, i.e. at a 50% discount. The Purchase Price payable, and the number of Shares or other securities issuable, upon exercise of the Rights are subject to adjustment from time to time (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Shares, (ii) in the event of certain business combinations prior to a Stock Acquisition Date, (iii) if holders of the Shares are granted certain rights or warrants to subscribe for Shares or securities convertible into Shares at less than the then current market price of the Shares, or (iv) upon the distribution to holders of the Shares of evidences of indebtedness or assets (excluding regular quarterly cash dividends) or of subscription rights or warrants (other than those referred to above). With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments amount to at least 1% of the Purchase Price. No fractional shares of Shares will be issued upon exercise of the Rights and, in lieu thereof, a cash payment will be made based on the market price of the Shares on the last trading date prior to the date of exercise. At any time until fifteen days following the Stock Acquisition Date, the Company may redeem the Rights in whole, but not in part, at a price of $0.03333 per Right, subject to adjustment (the "Redemption Price"), payable, at the election of the Company, in cash or Shares. Under certain circumstances set forth in the Rights 32 Agreement, the decision to redeem shall require the concurrence of a majority of the Continuing Directors. After the redemption period has expired, the Company's right of redemption may be reinstated if each Acquiring Person reduces his beneficial ownership to 10% or less of the Shares in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board of Directors ordering redemption of the Rights, with, where required, the concurrence of the Continuing Directors, the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. The term "Continuing Director" means any member of the Board of Directors of the Company who was a member of the Board prior to the date of the Rights Agreement, and any person who is subsequently elected to the Board if such person is recommended or approved by a majority of the Continuing Directors, but shall not include an Acquiring Person, any affiliate or associate of an Acquiring Person, or any representative of the foregoing entities. Until a Right is exercised, the holder thereof, as such, will have no rights as a shareholder of the Company, including, without limitation, the right to vote or to receive dividends. While the distribution of the Rights will not be taxable to shareholders or to the Company, shareholders may, depending upon the circumstances, recognize taxable income in the event that the Rights become exercisable for Shares (or other consideration) of the Company or for common stock of an acquiring company as set forth above. Any of the provisions of the Rights Agreement, other than the provisions relating to the principal economic terms of the Rights, may be amended by the Board of Directors of the Company prior to the Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be amended by the Board of Directors to cure any ambiguity, defect or inconsistency, to make changes which do not adversely affect the interests of holders of Rights (excluding the interests of any Acquiring Person), or to shorten or lengthen any time period under the Rights Agreement (under certain circumstances, with the concurrence of the Continuing Directors); provided that no amendment to adjust the time period governing redemption shall be made at such time as the Rights are not redeemable. The foregoing summary of the Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the Company's 8-A/A and the text of the Rights Agreement as set forth as an exhibit thereto, filed with the Commission, copies of which may be obtained in the manner set forth in Section 8. If the Rights Condition is not satisfied and the Purchaser elects, in its sole discretion, to waive the Rights Condition and consummate the Offer, and if there are outstanding Rights which have not been acquired by the Purchaser, the Purchaser will evaluate its alternatives. Such alternatives could include purchasing additional Rights in the open market, in privately negotiated transactions, in another tender or exchange offer or otherwise. Any such additional purchase of Rights could be for cash or other consideration. Under such circumstances, the Proposed Merger might be delayed or abandoned as impracticable. The form and amount of consideration to be received by the holders of Shares in the Proposed Merger, if consummated, might be subject to adjustment to compensate the Purchaser for, among other things, the costs of acquiring Rights and a portion of the potential dilution cost to the Purchaser of Rights not owned by the Purchaser and its wholly owned subsidiaries at the time of the Proposed Merger. In such event, the consideration paid for Shares in the Proposed Merger could be substantially less than the consideration paid in the Offer. In addition, the Purchaser may elect under such circumstances not to consummate the Proposed Merger. UNLESS AND UNTIL THE PURCHASER DECLARES THAT THE RIGHTS CONDITION IS SATISFIED, SHAREHOLDERS WILL BE REQUIRED TO TENDER ONE ASSOCIATED RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SUCH SHARE. IF THE DISTRIBUTION DATE DOES NOT OCCUR PRIOR TO THE EXPIRATION DATE, A TENDER OF SHARES WILL ALSO CONSTITUTE A TENDER OF THE ASSOCIATED RIGHTS. SEE SECTIONS 1 AND 3. THE OFFER IS CONDITIONED UPON THE RIGHTS CONDITION BEING SATISFIED. Appraisal Rights No appraisal rights are available in connection with the Offer. However, if the Proposed Merger is consummated, shareholders of the Company will have certain rights under Section 11.65 of the Illinois Law 33 to dissent and demand appraisal of, and payment in cash of the fair value of, their Shares. Such rights, if the statutory procedures were complied with, could lead to a judicial determination of the fair value required to be paid in cash to such dissenting holders for their Shares, plus any accrued interest. Any such judicial determination of the fair value of Shares and interest could be based upon considerations other than, or in addition to, the price paid in the Offer and the market value of the Shares, including, without limitation, asset values and the investment value of the Shares. The value so determined could be more or less than the purchase price per Share pursuant to the Offer or the consideration per Share to be paid in the Proposed Merger. In addition, although the Illinois courts have not addressed this issue directly, several decisions by Delaware courts have held that, in certain instances, a controlling shareholder of a corporation involved in a merger has a fiduciary duty to the other shareholders that requires the merger to be fair to such other shareholders. In determining whether a merger is fair to minority shareholders, the Delaware courts have considered, among other things, the type and amount of consideration to be received by the shareholders and whether there were fair dealings among the parties. Although the remedies of rescission or other damages are possible in an action challenging a merger as a breach of fiduciary duty, decisions of the Delaware courts have indicated that in most cases the remedy available in a merger that is found not to be "fair" to minority shareholders is a damages remedy based on essentially the same principles as an appraisal. While there can be no assurance that Illinois courts would come to the same decision, many states follow the lead of the Delaware courts in corporate matters. THE FOREGOING SUMMARY OF THE RIGHTS OF OBJECTING SHAREHOLDERS DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY SHAREHOLDERS DESIRING TO EXERCISE ANY AVAILABLE DISSENTERS' RIGHTS. THE PRESERVATION AND EXERCISE OF DISSENTERS' RIGHTS REQUIRE STRICT ADHERENCE TO THE APPLICABLE PROVISIONS OF THE ILLINOIS LAW. "Going Private" Transactions The Commission has adopted Rule 13e-3 under the Exchange Act which is applicable to certain "going private" transactions and which may under certain circumstances be applicable to the Proposed Merger. However, Rule 13e-3 would be inapplicable if (i) the Shares are deregistered under the Exchange Act prior to the Proposed Merger or other business combination or (ii) the Proposed Merger or other business combination is consummated within one year after the purchase of the Shares pursuant to the Offer and the amount paid per Share in the Proposed Merger or other business combination is at least equal to the amount paid per Share in the Offer. If applicable, Rule 13e-3 requires, among other things, that certain financial information concerning the fairness of the proposed transaction and the consideration offered to minority shareholders in such transaction be filed with the Commission and disclosed to shareholders prior to the consummation of the transaction. The purchase of a substantial number of Shares pursuant to the Offer may result in the termination of the Company's registration under the Exchange Act. See Section 7. If such registration were terminated, Rule 13e-3 would be inapplicable to the Proposed Merger. 12. SOURCE AND AMOUNT OF FUNDS The total amount of funds required by the Purchaser to purchase all of the Shares pursuant to the Offer and to pay fees and expenses related to the Offer and the Proposed Merger is estimated to be approximately $230 million. The Purchaser plans to obtain all funds needed for the Offer and the Proposed Merger through a capital contribution from Parent. Parent plans to obtain funds for such capital contribution through its existing Credit Agreement, dated as of September 7, 1990, as amended, among Parent and the banks listed therein (the "Credit Facility"), and through a committed credit line provided by Bank of America Illinois (the "Committed Line"). The Credit Facility provides for revolving credit of up to $200 million for general corporate purposes through August 1, 1997. At present, there is no outstanding indebtedness under the Credit Facility. Loans under the Credit Facility bear interest at one of the following rates, as selected by Parent on the date of borrowing: (i) the Base Rate (as defined in the Credit Facility); (ii) Adjusted CD Rate (as defined 34 in the Credit Facility); or (iii), the Eurodollar Rate (as defined in the Credit Facility) plus, in the case of (ii) and (iii) a margin (ranging from 1/4 of one percent to 3/4 of one percent) based on the leverage ratio of Parent at the end of the fiscal quarter most recently then ended. As of the date of this Offer to Purchase, the applicable margin would be 1/4 of one percent, which margin is expected to increase to 3/8 of one percent based on the pro forma capitalization of Parent after the Offer and the Proposed Merger. The effective interest rate as of the date of this Offer to Purchase would be approximately 6.25%. The Credit Facility contains covenants relating to, among other things, the maintenance of working capital, net worth, debt levels and interest coverage and restrictions on the payment of dividends. The members of the bank group providing the Credit Facility are Bankers Trust Company, Bank of America Illinois, First Chicago Corp., The Chase Manhattan Bank (National Association), Toronto Dominion Bank, Credit Suisse, Bank of Nova Scotia, Industrial Bank of Japan, Bank of Tokyo, Chemical Banking Corporation, Credit Lyonnais, NationsBank Corporation and Dresdner Bank Aktiengesellschaft. The Committed Line provides for credit of up to $50 million through a date 364 days following execution of final credit documentation, but in no event later than August 31, 1996, under substantially the same terms and conditions as the Credit Facility. The foregoing summary of the Credit Facility and the Committed Line is qualified in its entirety by reference to the text of the Credit Facility, which was filed as an exhibit to the Purchaser's Tender Offer Statement on Schedule 14D-1 dated March 22, 1994 and the Committed Line, which was filed as an exhibit to the Purchaser's Tender Offer Statement on Schedule 14D-1 dated July 24, 1995. Although no definitive plan or arrangement for repayment of borrowings under the Credit Facility and the Committed Line has been made, Parent anticipates such borrowings will be repaid with internally generated funds (including, if the Proposed Merger is accomplished, those of the Company) and from other sources which may include the proceeds of future bank refinancings or the public or private sale of debt or equity securities. No decision has been made concerning the method Parent will use to repay the borrowings under the Credit Facility and the Committed Line. Such decision will be made based on Parent's review from time to time of the advisability of particular actions, as well as prevailing interest rates, financial and other economic conditions and such other factors as Parent may deem appropriate. 13. DIVIDENDS AND DISTRIBUTIONS If, on or after July 21, 1995, the Company (i) splits, combines or otherwise changes the Shares or its capitalization, (ii) acquires Shares or otherwise causes a reduction in the number of Shares, (iii) issues or sells additional Shares (other than the issuance of Shares reserved for issuance as of December 31, 1994 pursuant to the exercise of then outstanding stock options of the Company or the Company's Stock Plan and Employee Stock Plan in accordance with their terms as publicly disclosed in the Company's 1994 10-K) or any shares of any other class of capital stock, other voting securities or any securities convertible into or exchangeable for, or rights (other than the Rights), warrants or options, conditional or otherwise, to acquire, any of the foregoing or (iv) discloses that it has taken any such actions, then, without prejudice to the Purchaser's rights under Section 14, the Purchaser, in its sole discretion, may make such adjustments in the purchase price and other terms of the Offer and the Proposed Merger as it deems appropriate to reflect such split, combination or other change or action, including, without limitation, the Minimum Condition or the number or type of securities offered to be purchased. The Company's regular quarterly cash dividends may be terminated after the consummation of the Offer. If on or after July 21, 1995, the Company declares or pays any dividend on the Shares (other than regular quarterly cash dividends not in excess of $.30 per Share having a customary and usual record date) or any distribution (including, without limitation, the issuance of additional Shares pursuant to a stock dividend or stock split, the issuance of other securities or the issuance of rights (other than the separation of the Rights from the Shares) for the purchase of any securities) with respect to the Shares or Rights (other than the redemption price for the Rights) that is payable or distributable to shareholders of record on a date prior to the transfer into the name of the Purchaser or its nominees or transferees on the Company's stock transfer records of the Shares and Rights purchased pursuant to the Offer (except that if the Rights are redeemed by the Company's Board of Directors, tendering shareholders who are holders of record as of the applicable record date will be entitled to receive and retain the Redemption Price for the Rights), and if Shares are 35 purchased in the Offer, then, without prejudice to the Purchaser's rights under Section 14, (i) the purchase price per Share payable by the Purchaser pursuant to the Offer shall be reduced by the amount of any such cash dividend or cash distribution and (ii) any such non-cash dividend, distribution (including, without limitation, additional Shares), issuance, proceeds or rights to be received by the tendering shareholders shall (a) be received and held by the tendering shareholders for the account of the Purchaser and will be required to be promptly remitted and transferred by each tendering shareholder to the Depositary for the account of the Purchaser, accompanied by appropriate documentation of transfer or (b) at the direction of the Purchaser, be exercised for the benefit of the Purchaser, in which case the proceeds of such exercise will promptly be remitted to the Purchaser. Pending such remittance or appropriate assurance thereof and subject to applicable law, the Purchaser will be entitled to all rights and privileges as owner of any such non-cash dividend, distribution, issuance, proceeds or rights and may withhold the entire purchase price or deduct from the purchase price the amount or value thereof, as determined by the Purchaser in its sole discretion. 14. CERTAIN CONDITIONS OF THE OFFER Notwithstanding any other provision of the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the Commission, including, without limitation, Rule 14e-l(c) under the Exchange Act (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares tendered pursuant to the Offer, and may postpone the acceptance for payment or, subject to the restriction referred to above, payment for any Shares tendered pursuant to the Offer, and may extend, amend or terminate the Offer (whether or not any Shares have theretofore been purchased or paid for) if, in the sole judgment of the Purchaser, (i) any condition to consummation of the Offer set forth in the Introduction to this Offer to Purchase (the Minimum Condition, the Rights Condition and the Business Combination Condition) has not been satisfied or (ii) at any time on or after July 21, 1995 and before acceptance for payment of, or payment for, such Shares, any of the following events shall occur or shall be deemed by the Purchaser to have occurred, or Parent or the Purchaser shall have learned about any such event applicable to or affecting the Company or any of its subsidiaries: (a) there shall have been threatened, instituted or pending any action, proceeding, application, claim or counterclaim by or before any court or governmental, regulatory or administrative agency, authority or tribunal, domestic, foreign or supranational (whether brought by the Company, an affiliate of the Company or any other person or entity), which (i) challenges or seeks to challenge the acquisition by the Purchaser of the Shares or Rights (or any of them), restrains, prohibits or delays or seeks to restrain, prohibit or delay the making or consummation of the Offer or the Proposed Merger or any other merger or transaction involving the Purchaser or any of its affiliates and the Company or any of its subsidiaries, restrains, prohibits or delays or seeks to restrain, prohibit or delay the performance of any of the contracts or other agreements or arrangements entered into by Parent or any of its affiliates in connection with the acquisition of the Company or the Shares or Rights (or any of them), or seeks to obtain any damages in connection with any of the foregoing, (ii) makes or seeks to make the purchase of or payment for, some or all of the Shares or Rights pursuant to the Offer, the Proposed Merger or otherwise, illegal, or results in or may result in a delay in the ability of the Purchaser to accept for payment or pay for some or all of the Shares or Rights or to consummate the Proposed Merger, (iii) imposes or seeks to impose limitations on the ability of Parent, the Purchaser or the Company or any of their respective affiliates or subsidiaries effectively to acquire or hold, or requiring Parent, the Purchaser, the Company or any of their respective affiliates or subsidiaries to dispose of or hold separate, any portion of the assets or the business of Parent, the Purchaser, the Company or any of their respective affiliates or subsidiaries or imposes or seeks to impose limitations on the ability of Parent, the Purchaser, the Company or any of their respective affiliates or subsidiaries to continue to conduct, own or operate all or any portion of their businesses and assets as heretofore conducted, owned or operated, (iv) imposes or seeks to impose or results in or may result in material limitations on the ability of Parent, the Purchaser or any of their affiliates to exercise full rights of ownership of the Shares or Rights purchased by them, including, but not limited to, the right to vote the Shares purchased by them on all matters properly 36 presented to the shareholders of the Company, or the right to vote any shares of capital stock of any subsidiary directly or indirectly owned by the Company, (v) results in or may result in a material limitation or diminution in the benefits expected to be derived by Parent and the Purchaser as a result of the transactions contemplated by the Offer and the Proposed Merger, (vi) imposes or seeks to impose voting, procedural, price or other requirements in addition to those under the Illinois Law and federal securities laws (each as in effect on the date of this Offer to Purchase) in connection with the transactions contemplated by the Offer and the Proposed Merger or any material condition to the Offer that is unacceptable to the Purchaser or (vii) otherwise directly or indirectly relates to the Offer, the Proposed Merger or any other business combination with the Company or which otherwise, in the sole judgment of the Purchaser, might adversely affect the Company or any of its subsidiaries or Parent, the Purchaser or any of their respective affiliates or the value of the Shares; or (b) other than the application of the waiting periods under the HSR Act and the necessity for the approvals and other actions by any domestic, foreign or supranational government or governmental, administrative or regulatory authority or agency described in Section 15, any statute, rule, regulation, judgment, decree, order or injunction shall have been proposed, sought, promulgated, enacted, entered, enforced or shall be, or shall be deemed to be, applicable to the Offer or the Proposed Merger or other business combination between Parent, the Purchaser or any of their respective affiliates and the Company, including, without limitation, any state takeover statute or other similar statute or regulation, or any other action shall have been taken, by any domestic, foreign or supranational government or any governmental, administrative or regulatory authority or agency or by any court or tribunal, in each case whether domestic, foreign or supranational, that might, directly or indirectly, result in any of the consequences referred to in clauses (i) through (vii), inclusive, of paragraph (a) above; or (c) any change (or any condition, event or development involving a prospective change) shall have occurred or be threatened in the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, management, key personnel, licenses, permits, franchises, results of operations or prospects of the Company or any of its subsidiaries, or in general political, market, economic or financial conditions in the United States or abroad, which, in the sole judgment of the Purchaser, is or may be materially adverse to the Company or any of its subsidiaries or its shareholders, or the market price of, or trading in, the Shares, or Parent or the Purchaser shall have become aware of any facts which, in the sole judgment of the Purchaser, are or may be materially adverse with respect to the value of the Company or any of its subsidiaries or affiliates or the value of the Shares to Parent or the Purchaser or any of their respective affiliates; or (d) there shall have occurred (i) any general suspension of trading in, or limitation on prices or the availability of quotations for, securities on any national securities exchange or in the over-the-counter securities market in the United States, (ii) the declaration of any banking moratorium or any suspension of payments in respect of banks in the United States, (iii) any material adverse change (or any existing or threatened condition, event or development involving a prospective material adverse change) in United States or any other currency exchange rates or a suspension of, or a limitation on, the markets therefor, (iv) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States, (v) any limitations (whether or not mandatory) imposed by any governmental authority on, or any event which, in the sole judgment of the Purchaser, might have material adverse significance with respect to, the nature or extension of credit or further extension of credit by banks or other lending institutions, (vi) any significant adverse change in the market price of the Shares or generally in securities or financial markets in the United States or abroad, including, without limitation, a decline of at least 15% in either the Dow Jones Average of Industrial Stocks or the Standard & Poor's 500 Index from that existing at the close of business on July 21, 1995 or (vii) in the case of any of the foregoing, a material acceleration or worsening thereof; or (e) the Company or any of its subsidiaries shall have (i) issued, distributed, pledged or sold, or authorized, proposed or announced the issuance, distribution, pledge or sale of (A) any shares of capital stock of any class (including, without limitation, the Shares), or securities convertible into or 37 exchangeable for any such shares, or any rights (other than the Rights), warrants, or options to acquire any such shares or convertible or exchangeable securities (other than the issuance of Shares reserved for issuance upon the exercise of stock options outstanding on December 31, 1994 that were issued under the Company's Stock Plan or the Company's Employee Stock Plan in accordance with the publicly disclosed terms thereof on or prior to such date) or (B) any other securities or rights in respect of, in lieu of, or in substitution for, capital stock of the Company, (ii) purchased or otherwise acquired or caused a reduction in, or proposed or offered to purchase or otherwise acquire, any Shares or other securities of the Company (except for redemption of the Rights in accordance with the terms of the Rights Agreement), (iii) declared or paid, or proposed to be declared or paid, any dividend or distribution on any shares of capital stock (other than regular cash dividends on the Shares at a quarterly rate not in excess of $.30 per Share or a distribution of the Rights Certificates in accordance with the terms of the Rights Agreement and, in the event the Rights are redeemed, the redemption price of the Rights), or issued, or authorized, recommended or proposed the issuance of, any other distribution in respect of any shares of capital stock, whether payable in cash, securities or other property, or altered or proposed to alter any material term of any outstanding security, (iv) issued, distributed or sold, or authorized, announced or proposed the issuance, distribution or sale of, any debt securities or any securities convertible into or exchangeable for debt securities or any rights, warrants or options entitling the holder thereof to purchase or otherwise acquire any debt securities, or incurred, or authorized or proposed the incurrence of, any debt other than in the ordinary course of business and consistent with past practice, or any debt containing burdensome covenants, (v) entered into any agreement for, or authorized, recommended, proposed, effected or publicly announced its intention to authorize, recommend, propose, enter into or cause (A) any merger (other than the Proposed Merger), consolidation, liquidation, dissolution, business combination, joint venture, acquisition of assets or securities (other than a redemption of the Rights in accordance with the Rights Agreement) or disposition of assets or securities other than in the ordinary course of business, (B) any material change in its capitalization, (C) any release or relinquishment of any material contract rights or (D) any comparable event not in the ordinary course of business, (vi) entered into any agreement for, or authorized, recommended, proposed, effected or announced its intention to authorize, recommend, propose, enter into or cause, any transaction or arrangement which could adversely affect the value of the Shares, (vii) proposed, adopted or authorized or announced its intention to propose, adopt or authorize any amendment to the Company's Certificate or the Company's Bylaws or similar organizational documents or (other than any amendment which delays the Distribution Date) the Rights Agreement or (viii) agreed in writing or otherwise to take any of the foregoing actions; or (f) a tender or exchange offer for some portion or all of any outstanding securities of the Company or any of its subsidiaries or affiliates (including, without limitation, the Shares or Rights) shall have been publicly proposed to be made or shall have been made by another person (including, without limitation, the Company or any of its subsidiaries or affiliates), or it shall have been publicly disclosed or the Purchaser shall have learned that (i) any person (including, without limitation, the Company or any of its subsidiaries or affiliates), entity or "group" (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or proposed to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including, without limitation, the Shares or Rights) or its subsidiaries or shall have been granted any warrant, option or right, conditional or otherwise, to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including, without limitation, the Shares or Rights) or its subsidiaries, other than acquisitions of Shares for bona fide arbitrage positions, (ii) any such person, entity or group which has publicly disclosed any such beneficial ownership of or right to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including, without limitation, the Shares or Rights) or its subsidiaries prior to July 21, 1995 shall have acquired or proposed to acquire beneficial ownership of additional shares of any class or series of capital stock of the Company (including, without limitation, the Shares or Rights) or its subsidiaries constituting more than 1% of such class or series or shall have been granted any option or right to acquire beneficial ownership of more than 1% of such class or series of capital stock of the 38 Company (including, without limitation, the Shares or Rights) or its subsidiaries, (iii) any group shall have been formed which beneficially owns more than 5% of any class or series of capital stock of the Company (including, without limitation, the Shares or Rights) or its subsidiaries, (iv) any person, entity or group shall have entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender offer or exchange offer for the Shares or Rights or a merger, consolidation or other business combination with or involving the Company or its subsidiaries or (v) any person, entity or group shall have filed a Premerger Notification and Report Form under the HSR Act in order to, or made a public announcement reflecting an intent to, acquire the Company or any of its subsidiaries or assets or securities of the Company or any of its subsidiaries; or (g) (i) the Company and Parent shall have reached an agreement or understanding that the Offer be terminated or amended or the purchase or payment for Shares be postponed pursuant thereto or (ii) Parent, the Purchaser or any of their respective affiliates shall have entered into a definitive agreement or announced an agreement in principle with respect to the Proposed Merger or any other business combination with the Company or any of its affiliates or the purchase of any material portion of the securities or assets of the Company or any of its subsidiaries; or (h) the Company or any of its subsidiaries shall have entered into any employment, severance or similar agreement, arrangement or plan with or for the benefit of any of its employees or entered into or amended any agreements, arrangements or plans so as to provide for increased or accelerated compensation or payment or funding of the benefits to any such employees as a result of or in connection with the transactions contemplated by the Offer or the Proposed Merger or any other business combination involving the Company or any of its subsidiaries or otherwise amended any such agreement, arrangement or plan to make the same more favorable to any such employee; or (i) the Purchaser shall become aware (i) that any material contractual right of the Company or any of its subsidiaries shall be impaired or otherwise adversely affected or that any material amount of indebtedness of the Company or any of its subsidiaries shall become accelerated or otherwise become due or become subject to acceleration prior to its stated due date, in any case with or without notice or the lapse of time or both as a result of or in connection with the transactions contemplated by the Offer or the Proposed Merger or any other business combination involving the Company, (ii) of any covenant, term or condition in any of the Company's or any of its subsidiaries' instruments or agreements that has or may have (whether considered alone or in the aggregate with other covenants, terms or conditions), a material adverse effect on (x) the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, management, key personnel, licenses, franchises, results of operations or prospects of the Company or any of its subsidiaries (including, but not limited to, any event of default that may result from the consummation of the Offer, the acquisition of control of the Company or any of its subsidiaries or the Proposed Merger or any other business combination involving the Company) or (y) the value of the Shares in the hands of Parent, the Purchaser or any of their respective affiliates or (z) the consummation by Parent, the Purchaser or any of their respective affiliates of the Offer and the Proposed Merger or any other business combination involving the Company or (iii) that any report, document, instrument, financial statement or schedule of the Company or any of its subsidiaries filed with the Commission contained, when filed, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; or (j) except as may be required by law, the Company or any of its subsidiaries shall have taken any action to adopt a new or terminate or amend any existing employee benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended) of the Company or any of its subsidiaries, or agreed in writing or otherwise to take any such action; or (k) any waiting periods under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall not have expired or been terminated, or any approval, permit, authorization, consent or other action of any domestic, foreign or supranational governmental, administrative or regulatory agency, 39 authority or tribunal (including, without limitation, those described in Section 15) required in connection with the Offer and the Proposed Merger shall not have been obtained on terms satisfactory to the Purchaser in its sole discretion. The foregoing conditions are for the sole benefit of the Purchaser and its affiliates and may be asserted by the Purchaser regardless of the circumstances (including, without limitation, any action or inaction by the Purchaser or any of its affiliates) giving rise to any such condition or may be waived by the Purchaser, in whole or in part, from time to time in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such rights and each such right shall be deemed an ongoing right and may be asserted at any time and from time to time. Any determination by the Purchaser concerning any of the events described in this Section 14 shall be final, conclusive and binding upon all parties. A public announcement shall be made of a material change in, or waiver of, such conditions, to the extent required by Rules 14d-4(c) and 14d-6(d) under the Exchange Act and the Offer shall, in certain circumstances, be extended in connection with any such change or waiver to the extent required by such rules. The Purchaser acknowledges that the Commission believes that (i) if the Purchaser is delayed in accepting the Shares it must either extend the Offer or terminate the Offer and promptly return the Shares and (ii) the circumstances in which a delay in payment is permitted are limited and do not include unsatisfied conditions of the Offer, except with respect to most regulatory approvals. 15. CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS Except as set forth in this Offer to Purchase, based on its review of publicly available filings by the Company with the Commission and other publicly available information regarding the Company, neither Parent nor the Purchaser is aware of any licenses or regulatory permits that appear to be material to the business of the Company and its subsidiaries, taken as a whole, and that might be adversely affected by the Purchaser's acquisition of Shares (and the indirect acquisition of the stock of the Company's subsidiaries) as contemplated herein, or any filings, approvals or other actions by or with any domestic, foreign or supranational governmental authority or administrative or regulatory agency that would be required for the acquisition or ownership of the Shares (or the indirect acquisition of the stock of the Company's subsidiaries) by the Purchaser pursuant to the Offer as contemplated herein. Should any such approval or other action be required, it is presently contemplated that such approval or action would be sought except as described below under "State Takeover Laws." Should any such approval or other action be required, there can be no assurance that any such approval or action, if needed, would be obtained without substantial conditions or that adverse consequences might not result to the Company's or its subsidiaries' businesses, or that certain parts of the Company's, Parent's, the Purchaser's or any of their respective subsidiaries' businesses might not have to be disposed of or held separate or other substantial conditions complied with in order to obtain such approval or action or in the event that such approvals were not obtained or such actions were not taken, any of which could cause the Purchaser to elect to terminate the Offer without the purchase of the Shares thereunder. The Purchaser's obligation to purchase and pay for Shares is subject to certain conditions, including, without limitation, conditions with respect to litigation and governmental actions. See the Introduction and Section 14 for a description thereof. State Takeover Laws A number of states (including Illinois, where the Company is incorporated) have adopted takeover laws and regulations which purport, to varying degrees, to be applicable to attempts to acquire securities of corporations which are incorporated in such states or which have or whose business operations have 40 substantial economic effects in such states, or which have substantial assets, shareholders, principal executive offices or principal places of business therein. To the extent that certain provisions of certain of these state takeover statutes purport to apply to the Offer or the Proposed Merger, the Purchaser believes that such laws conflict with federal law and constitute an unconstitutional burden on interstate commerce. In 1982, the Supreme Court of the United States, in Edgar v. Mite Corp., invalidated on constitutional grounds the Illinois Business Takeovers Act which, as a matter of state securities law, made takeovers of corporations meeting certain requirements more difficult, and the reasoning in such decision is likely to apply to certain other state takeover statutes. In 1987, however, in CTS Corp. v. Dynamics Corp. of America, the Supreme Court of the United States held that the State of Indiana could, as a matter of corporate law and, in particular, those aspects of corporate law concerning corporate governance, constitutionally disqualify a potential acquiror from voting on the affairs of a target corporation without the prior approval of the remaining shareholders, provided that such laws were applicable only under certain conditions. Subsequently, in TLX Acquisition Corp. v. Telex Corp., a federal district court in Oklahoma ruled that the Oklahoma statutes were unconstitutional insofar as they apply to corporations incorporated outside Oklahoma in that they would subject such corporations to inconsistent regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a federal district court in Tennessee ruled that four Tennessee takeover statutes were unconstitutional as applied to corporations incorporated outside Tennessee. This decision was affirmed by the United States Court of Appeals for the Sixth Circuit. In December 1988, a federal district court in Florida held in Grand Metropolitan PLC v. Butterworth that the provisions of the Florida Affiliated Transactions Act and Florida Control Share Acquisition Act were unconstitutional as applied to corporations incorporated outside of Florida. For a discussion of the relevant Illinois takeover statutes, see the Introduction and Section 11. Except as described in the Introduction and Section 11 with respect to the Business Combination Law, the Purchaser has not attempted to comply with any state takeover statutes in connection with the Offer or the Proposed Merger. The Purchaser reserves the right to challenge the validity or applicability of any state law allegedly applicable to the Offer or the Proposed Merger and nothing in this Offer to Purchase nor any action taken in connection herewith is intended as a waiver of that right. In the event that it is asserted that one or more takeover statutes apply to the Offer or the Proposed Merger, and it is not determined by an appropriate court that such statute or statutes do not apply or are invalid as applied to the Offer or the Proposed Merger, as applicable, the Purchaser may be required to file certain documents with, or receive approvals from, the relevant state authorities, and the Purchaser might be unable to accept for payment or purchase Shares tendered pursuant to the Offer or be delayed in continuing or consummating the Offer. In such case, the Purchaser may not be obligated to accept for purchase, or pay for, any Shares tendered. See Section 14. Antitrust Under the HSR Act, and the rules and regulations that have been promulgated thereunder by the FTC, certain acquisition transactions may not be consummated until certain information and documentary material has been furnished for review by the Antitrust Division and the FTC and certain waiting period requirements have been satisfied. The acquisition of Shares pursuant to the Offer is subject to such requirements. Parent intends to file on July 24, 1995, with the FTC and the Antitrust Division a Premerger Notification and Report Form in connection with the purchase of Shares pursuant to the Offer. Under the provisions of the HSR Act applicable to the Offer, the purchase of Shares pursuant to the offer may not be consummated until the expiration of a 15- calendar day waiting period following the filing by Parent. Accordingly, the waiting period under the HSR Act applicable to such purchases of Shares pursuant to the Offer should expire at 11:59 p.m., New York City time, on August 8, 1995, unless such waiting period is earlier terminated by the FTC and the Antitrust Division or extended by a request from the FTC or the Antitrust Division for additional information or documentary material prior to the expiration of the waiting period. If, however, either the FTC or the Antitrust Division were to request additional information or documentary material from Parent, 41 the waiting period would expire at 11:59 p.m., New York City time, on the tenth calendar day after the date of substantial compliance by Parent with such request. Thereafter, the waiting period could be extended only by court order or by agreement. If the acquisition of Shares is delayed pursuant to a request by the FTC or the Antitrust Division for additional information or documentary material pursuant to the HSR Act, the Offer may, but need not, be extended and, in any event, the purchase of and payment for Shares will be deferred until 10 days after the request is substantially complied with, unless the 10-day extended period expires on or before the date when the initial 15-day period would otherwise have expired or unless the waiting period is sooner terminated by the FTC and the Antitrust Division. See Section 2. Only one extension of such waiting period pursuant to a request for additional information is authorized by the HSR Act and the rules promulgated thereunder, except by court order. Any such extension of the waiting period will not give rise to any withdrawal rights not otherwise provided for by applicable law. See Section 4. Although the Company is required to file certain information and documentary material with the Antitrust Division and the FTC in connection with the Offer, neither the Company's failure to make such filings nor a request from the Antitrust Division or the FTC for additional information or documentary material made to the Company will extend the waiting period. The FTC and the Antitrust Division may scrutinize the legality under the antitrust laws of transactions such as the proposed acquisition of Shares by the Purchaser pursuant to the Offer. At any time before or after the purchase by the Purchaser of Shares pursuant to the offer, the FTC and the Antitrust Division could take such action under the antitrust laws as it deems necessary or desirable, including, without limitation, seeking to enjoin the purchase of Shares pursuant to the offer or seeking the divestiture of Shares purchased by the Purchaser or the divestiture of substantial assets of Parent, its subsidiaries or the Company. Private parties and state attorneys general may also bring legal action under federal or state antitrust laws under certain circumstances. Based upon an examination of publicly available information relating to the businesses in which Parent and its subsidiaries and the Company and its subsidiaries are engaged, Parent and the Purchaser believe that the Offer will not violate the antitrust laws. Nevertheless, there can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, of the result. See Section 14. Foreign Approvals. According to the Company's 1994 10-K, the Company owns and operates one Canadian subsidiary. The Purchaser believes no filings are required to be made under the Investment Canada Act, which regulates acquisition of control of Canadian businesses by non-Canadians, because the value of the assets of all of the acquired entities carrying on a Canadian business is not more than 50% of the value of the assets of all entities control of which is to be acquired pursuant to the Offer. Premerger notification will also likely not be required under the Canadian Competition Act, which requires such notification with respect to transactions in which parties to the transaction and their affiliates have assets in Canada, or annual gross revenues from sales in, from or into Canada in excess of Cdn $400 million (approximately US $300 million as of July 21, 1995). In connection with the acquisition of the Shares pursuant to the Offer, the laws of Canada and/or certain other foreign countries and jurisdictions may require the filing of information with, or the obtaining of the approval of, governmental authorities in such countries and jurisdictions. The governments in such countries and jurisdictions might attempt to impose additional conditions on the Company's operations conducted in such countries and jurisdictions as a result of the acquisition of the Shares pursuant to the Offer or the Proposed Merger. There can be no assurance that the Purchaser will be able to cause the Company or its subsidiaries to satisfy or comply with such laws or that compliance or noncompliance will not have adverse consequences for the Company or any subsidiary after purchase of the Shares pursuant to the Offer or the Proposed Merger. Margin Credit Regulations. Federal Reserve Board Regulations G, T, U and X (the "Margin Credit Regulations") restrict the extension or maintenance of credit for the purpose of buying or maintaining margin stock, if the credit is secured directly or indirectly thereby. The borrowings under the Credit Facility will not be directly secured by a pledge of the Shares. In addition, Parent and the Purchaser believe that such borrowings will not be "indirectly secured" within the meaning of the Margin Credit Regulations, as interpreted. Accordingly, Parent and the Purchaser believe that the Margin Credit Regulations are not applicable to the borrowings under the Credit Facility. 42 16. CERTAIN FEES AND EXPENSES Merrill Lynch is acting as Dealer Manager in connection with the Offer and serving as financial advisor to the Purchaser and Parent in connection with the Proposed Merger. As compensation for such services, Parent has agreed to pay Merrill Lynch a fee of $500,000, $400,000 of which fee is payable upon commencement by Parent or one of its affiliates of a tender offer or exchange offer for securities of the Company. Parent has also agreed to pay Merrill Lynch a fee of up to $2,000,000 (less any fees theretofore paid) contingent upon consummation of an Acquisition Transaction. "Acquisition Transaction" has been defined to include (i) any merger, consolidation, reorganization or other business combination pursuant to which the business of the Company is combined with that of Parent or one of its affiliates; (ii) the acquisition, directly or indirectly, by Parent or one of its affiliates by tender or exchange offer, negotiated purchase or other means of at least 50% of the then outstanding capital stock of the Company; (iii) the acquisition, directly or indirectly, by Parent or one of its affiliates of at least 50% of the assets of, or of any right to all or a substantial portion of the revenues or income of the Company; or (iv) the acquisition, directly or indirectly, by Parent or one of its affiliates of control of the Company through a proxy contest or otherwise than through the acquisition of the Company's voting capital stock. In addition, Parent has agreed to reimburse Merrill Lynch for its reasonable out-of-pocket expenses, including, without limitation, reasonable fees and disbursements of its counsel, incurred in connection with the Offer and the Proposed Merger or otherwise arising out of Merrill Lynch's engagement, and has also agreed to indemnify Merrill Lynch (and certain affiliated persons) against certain liabilities and expenses, including, without limitation, certain liabilities under the federal securities laws. Merrill Lynch may from time to time in the future render various investment banking services to Parent and its affiliates, for which it is expected it would be paid customary fees. D.F. King & Co., Inc. has been retained by the Purchaser as Information Agent in connection with the Offer. The Information Agent may contact holders of Shares and Rights by mail, telephone, telex, telegraph and personal interview and may request brokers, dealers and other nominee shareholders to forward material relating to the Offer to beneficial owners of Shares and Rights. The Purchaser will pay the Information Agent reasonable and customary compensation for all such services in addition to reimbursing the Information Agent for reasonable out-of-pocket expenses in connection therewith. The Purchaser has agreed to indemnify the Information Agent against certain liabilities and expenses in connection with the Offer, including, without limitation, certain liabilities under the federal securities laws. In addition, Bank of America Illinois has been retained as the Depositary. The Purchaser will pay the Depositary reasonable and customary compensation for its services in connection with the Offer, will reimburse the Depositary for its reasonable out-of-pocket expenses in connection therewith and will indemnify the Depositary against certain liabilities and expenses in connection therewith, including, without limitation, certain liabilities under the federal securities laws. Except as set forth above, neither Parent nor the Purchaser will pay any fees or commissions to any broker, dealer or other person for soliciting tenders of Shares and Rights pursuant to the Offer. Brokers, dealers, commercial banks and trust companies and other nominees will, upon request, be reimbursed by Parent or the Purchaser for customary clerical and mailing expenses incurred by them in forwarding offering materials to their customers. 17. MISCELLANEOUS The Offer is being made solely by this Offer to Purchase and the related Letter of Transmittal. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares or Rights residing in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. However, the Purchaser may, in its discretion, take such action as it may deem necessary to make the Offer in any jurisdiction and extend the Offer to holders of Shares in such jurisdiction. 43 In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of the Purchaser by the Dealer Manager or one or more registered brokers or dealers that are licensed under the laws of such jurisdiction. Parent and the Purchaser have filed with the Commission a Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 of the General Rules and Regulations under the Exchange Act, furnishing certain additional information with respect to the Offer, and may file amendments thereto. Such Schedule 14D-1 and any amendments thereto, including exhibits, may be examined and copies may be obtained from the office of the Commission in the same manner as described in Section 8 with respect to information concerning the Company, except that they will not be available at the regional offices of the Commission. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION ON BEHALF OF PARENT OR THE PURCHASER NOT CONTAINED IN THIS OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, ANY SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. Neither the delivery of the Offer to Purchase nor any purchase pursuant to the Offer shall, under any circumstances, create any implication that there has been no change in the affairs of Parent, the Purchaser, the Company or any of their respective subsidiaries since the date as of which information is furnished or the date of this Offer to Purchase. TK ACQUISITION CORPORATION July 24, 1995 44 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND THE PURCHASER PARENT Set forth below are the name, business address and present principal occupation or employment, and material occupations, positions, offices or employments for the past five years of each director and executive officer of Parent. Except as otherwise noted, the business address of each such person is 1250 24th Street N.W., Washington, D.C. 20037, and each such person is a United States citizen. In addition, except as otherwise noted, each director and executive officer of Parent has been employed in his or her present principal occupation listed below during the last five years. Directors of Parent are indicated by an asterisk.
POSITIONS, OFFICES OR EMPLOYMENTS FOR PAST FIVE NAME AND BUSINESS ADDRESS YEARS - ------------------------- -------------------------------------------------- Patrick W. Allender................... Mr. Allender is Senior Vice President, Chief Financial Officer and Secretary of Parent. He has held such position since 1987. C. Scott Brannan...................... Mr. Brannan is Vice President Administration and Controller of Parent. He has held such position since 1987. Mortimer M. Caplin*................... Mr. Caplin has been Senior member of Caplin & Caplin & Drysdale Drysdale, a law firm in Washington, D.C. for more One Thomas Circle, N.W. than five years. He is a Director of Fairchild Suite 1100 Industries, Inc., Fairchild Corporation, Washington, D.C. 20005 Presidential Realty Corporation and Unigene Laboratories, Inc. Dennis D. Claramunt................... Mr. Claramunt was appointed Vice President and Group Executive of Parent in 1994. He has served as President of Jacobs Chuck Manufacturing Company for more than five years. James H. Ditkoff...................... Mr. Ditkoff was appointed Vice President- Finance/Tax of Parent in January, 1991. He has served in an executive capacity in finance/tax for Parent since 1988. Donald J. Ehrlich*.................... Mr. Ehrlich has been President, Chief Executive Wabash National Corporation Officer and Director of Wabash National 1000 Sagamore Parkway South Corporation since its inception in 1985. He is a Lafayette, IN 47905 Director of Indiana Secondary Market for Educational Loans, Inc. and NBD Bank, N.A., Northwest. Walter G. Lohr, Jr.*.................. Mr. Lohr has been a Partner of Hogan & Hartson, a Hogan & Hartson law firm in Baltimore, Maryland since 1992. He was 111 South Calvert Street an attorney in private practice from 1987 to 1992. Suite 1600 Baltimore, MD 21202-6191 Mitchell P. Rales*.................... Mr. Rales is Chairman of the Executive Committee of Parent. He has held such position since February 1990. He has been a General Partner of Equity Group Holdings, a general partnership located in Washington, D.C., with interests in manufacturing companies, media operations, and publicly traded securities, since 1979.
S-1
POSITIONS, OFFICES OR EMPLOYMENTS FOR PAST FIVE NAME AND BUSINESS ADDRESS YEARS - ------------------------- -------------------------------------------------- Steven M. Rales*...................... Mr. Rales is Chairman of the Board of Parent, a position he has held since 1984. He was Chief Executive Officer of Parent until February 1990. He has been a General Partner of Equity Group Holdings, a general partnership located in Washington, D.C., with interests in manufacturing companies, media operations, and publicly traded securities, since 1979. George M. Sherman*.................... Mr. Sherman is President, Chief Executive Officer and Director of Parent. He has held such positions since February 1990. A. Emmet Stephenson, Jr.*............. Mr. Stephenson has been President of Stephenson Stephenson & Company and Co., a private investment management firm in 100 Garfield Street Denver, Colorado and Senior Partner of Stephenson Denver, CO 80206 Merchant Banking for more than five years. John P. Watson........................ Mr.Watson was appointed Vice President and Group Executive of Parent in 1993. He has served Parent in an executive capacity in its Tool Group since September, 1990. He was Executive Vice President for the Sterling Group, a division of the Kohler Company, prior thereto.
S-2 THE PURCHASER Set forth below are the name and position with the Purchaser of each director and executive officer of the Purchaser. The principal business address of each such person is 1250 24th Street N.W., Washington, D.C. 20037. Each such person is a United States citizen. No such person owns, beneficially or otherwise, any Shares. For further information regarding such persons, see pages S-1 and S-2 above.
PRESENT OFFICE OR OTHER NAME PRINCIPAL OCCUPATION OR EMPLOYMENT ---- ---------------------------------- Mitchell P. Rales................ Director. Steven M. Rales.................. Director. George M. Sherman................ President and Director. Patrick W. Allender.............. Vice President and Treasurer. C. Scott Brannan................. Vice President and Secretary.
S-3 Facsimile copies of the Letter of Transmittal, properly completed and duly executed, will be accepted. The Letter of Transmittal, certificates for Shares and Rights and any other required documents should be sent or delivered by each shareholder of the Company or by such shareholder's broker, dealer, commercial bank, trust company or other nominee to the Depositary at one of its addresses set forth below: THE DEPOSITARY FOR THE OFFER IS: BANK OF AMERICA ILLINOIS By Mail: By Facsimile Transmission: By Hand or Overnight (312) 923-0271 Delivery: Bank of America Illinois Bank of America Illinois Corporate Trust Depositary 231 LaSalle Street P.O. Box 805857 Information and Confirm by 19 Floor Window Chicago, IL 60680-4120 Telephone: (Clark Street Side) (800) 962-9324 Chicago, IL 60697 Attn: Corporate Trust Operations Window Questions and requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth below. Additional copies of this Offer to Purchase, the Letter of Transmittal and other tender offer materials may be obtained from the Information Agent as set forth below, and will be furnished promptly at the Purchaser's expense. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: D.F. KING & CO., INC. 77 Water Street New York, New York 10005 (212) 269-5550 (Call Collect) or (800) 758-7358 The Dealer Manager for the Offer is: MERRILL LYNCH & CO. World Financial Center North Tower New York, New York 10281-1305 (212) 236-4565 (Call Collect) EX-11.(A)(2) 3 LETTER OF TRANSMITTAL EXHIBIT 11(a)(2) LETTER OF TRANSMITTAL TO TENDER SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS) OF JOSLYN CORPORATION PURSUANT TO THE OFFER TO PURCHASE DATED JULY 24, 1995 BY TK ACQUISITION CORPORATION AN INDIRECT WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, AUGUST 18, 1995, UNLESS THE OFFER IS EXTENDED. The Depositary for the Offer is: BANK OF AMERICA ILLINOIS By Mail: By Facsimile Transmission: By Hand or Overnight (312) 923-0271 Courier: Bank of America Illinois Bank of America Illinois Corporate Trust Confirm by Telephone: 231 La Salle Street Depositary (800) 962-9324 19th Floor Window P.O. Box 805857 (Clark Street Side) Chicago, IL 60680-4120 Attn: Corporate Trust Operations Window DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. SIGNATURES MUST BE PROVIDED ON THE INSIDE AND REVERSE BACK COVER. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. This Letter of Transmittal is to be completed by holders of Shares (as defined below) either if certificates are to be forwarded herewith or, unless an Agent's Message (as defined in Section 2 of the Offer to Purchase (as defined below)) is utilized, if a tender of Shares (and, if applicable, the associated Rights) are to be made by book-entry transfer into the account of Bank of America Illinois as Depositary (the "Depositary"), at The Depository Trust Company ("DTC"), the Midwest Securities Trust Company ("MSTC") or the Philadelphia Depository Trust Company ("PDTC") (each a "Book-Entry Transfer Facility" and collectively the "Book-Entry Transfer Facilities") pursuant to the procedures set forth in Section 3 of the Offer to Purchase (as defined below). UNLESS AND UNTIL TK ACQUISITION CORPORATION DECLARES THAT THE RIGHTS CONDITION (AS DEFINED IN THE OFFER TO PURCHASE) IS SATISFIED, HOLDERS OF SHARES WILL BE REQUIRED TO TENDER ONE RIGHT FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SUCH SHARE. If the Distribution Date (as defined in the Offer to Purchase) has not occurred prior to the time Shares are tendered pursuant to the Offer, a tender of Shares will also constitute a tender of the associated Rights. See Section 3 of the Offer to Purchase. If the Distribution Date has occurred, and certificates representing Rights (the "Rights Certificates") have been distributed to holders of Shares, such holders of Shares will be required to tender Rights Certificates representing a number of Rights equal to the number of Shares being tendered in order to effect a valid tender of such Shares. Holders of Shares whose certificates for such Shares (the "Share Certificates") and, if applicable, Rights Certificates are not immediately available or who cannot deliver their Share Certificates or, if applicable, Rights Certificates and all other required documents to the Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase), or who cannot complete the procedure for book-entry transfer on a timely basis, must tender their Shares and, if applicable, Rights according to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. See Instruction 2. Delivery of documents to a Book-Entry Transfer Facility does not constitute delivery to the Depositary. [_]CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution: ____________________________________________ Check Box of Book-Entry Transfer Facility: [_] DTC [_] MSTC [_] PDTC Account Number: ________________ Transaction Code Number: ________________ [_]CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY. Name(s) of Registered Holder(s): __________________________________________ Window Ticket Number (if any): ____________________________________________ Date of Execution of Notice of Guaranteed Delivery: _______________________ Name of Institution which Guaranteed Delivery: ____________________________ [_]CHECK HERE IF RIGHTS ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER (IF AVAILABLE) MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution: ____________________________________________ Check Box of Book-Entry Transfer Facility: [_] DTC [_] MSTC [_] PDTC Account Number: ________________ Transaction Code Number: ________________ 2 [_]CHECK HERE IF RIGHTS ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY. Name(s) of Registered Holder(s): __________________________________________ Window Ticket Number (if any): ____________________________________________ Date of Execution of Notice of Guaranteed Delivery: _______________________ Name of Institution which Guaranteed Delivery: ____________________________ 3 DESCRIPTION OF SHARES TENDERED - --------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE CERTIFICATE(S) AND (PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) SHARE(S) TENDERED APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST, IF NECESSARY) - --------------------------------------------------------------------------------------------- TOTAL NUMBER OF SHARES SHARE REPRESENTED BY CERTIFICATE SHARE NUMBER OF SHARES NUMBER(S)* CERTIFICATE(S)* TENDERED** - --------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------- TOTAL SHARES
- -------------------------------------------------------------------------------- * Need not be completed by Book-Entry Shareholders. ** Unless otherwise indicated, it will be assumed that all Shares represented by certificates delivered to the Depositary are being tendered. See Instruction 4. DESCRIPTION OF RIGHTS TENDERED* - --------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) RIGHTS CERTIFICATE(S) AND (PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) RIGHT(S) TENDERED APPEAR(S) ON RIGHTS CERTIFICATE(S)) (ATTACH ADDITIONAL LIST, IF NECESSARY) - ----------------------------------------------------------------------------------------------- TOTAL NUMBER OF RIGHTS RIGHTS REPRESENTED BY CERTIFICATE RIGHTS NUMBER OF RIGHTS NUMBER(S)* CERTIFICATE(S)** TENDERED*** - ----------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------- TOTAL RIGHTS
- -------------------------------------------------------------------------------- * If the tendered Rights are represented by separate certificates, complete the certificate numbers of such Rights Certificates. ** Need not be completed by Book-Entry Shareholders. *** Unless otherwise indicated, it will be assumed that all Rights represented by certificates delivered to the Depositary are being tendered. See Instruction 4. 4 Ladies and Gentlemen: The undersigned hereby tenders to TK Acquisition Corporation, a Delaware corporation ("Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Danaher"), the above-described shares of Common Stock, $1.25 par value per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and (unless and until the Purchaser declares that the Rights Condition (as defined in the Offer to Purchase described below) is satisfied), the associated Common Stock Purchase Rights, (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as of September 2, 1994 (the "Rights Agreement"), between the Company and The First National Bank of Chicago, an Illinois banking corporation, as Rights Agent (the "Rights Agent"), at a purchase price of $32 per Share (and associated Right), net to the seller in cash without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), and in this Letter of Transmittal (which together constitute the "Offer"). Unless the context otherwise requires, all references to Shares shall include the associated Rights, and all references to Rights shall include all benefits that may inure to the shareholders of the Company or to holders of the Rights pursuant to the Rights Agreement. The undersigned understands that Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to one or more of its affiliates, the right to purchase all or any portion of the Shares and Rights tendered pursuant to the Offer, receipt of which is hereby acknowledged. The undersigned understands that if the Distribution Date (as defined in the Offer to Purchase) has occurred and certificates representing Rights (the "Rights Certificates") have been distributed to holders of Shares prior to the date of tender of the Shares tendered herewith, Rights Certificates representing a number of Rights equal to the number of Shares being tendered herewith must be delivered to the Depositary (as defined below) or, if available, a Book-Entry Confirmation (as defined herein) received with respect thereto, in order for the Shares tendered herewith to be validly tendered. If the Distribution Date has occurred and Rights Certificates have not been distributed prior to the time Shares and Rights are tendered herewith, the undersigned agrees to deliver Rights Certificates representing a number of Rights equal to the number of Shares tendered herewith to Bank of America Illinois (the "Depositary") within five business days after the date such Rights Certificates are distributed. A tender of Shares without Rights Certificates constitutes an agreement by the tendering shareholder to deliver Rights Certificates representing a number of Rights equal to the number of Shares tendered pursuant to the Offer to the Depositary within five business days after the date such Rights Certificates are distributed. The undersigned understands that if the Rights Condition is not satisfied Purchaser reserves the right to require that the Depositary receive such Rights Certificates prior to accepting Shares for payment. In that event, payment for Shares tendered and accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of, among other things, Rights Certificates, if Rights Certificates have been distributed to holders of Shares. Subject to, and effective upon, acceptance for payment of the Shares tendered herewith in accordance with the terms and subject to the conditions of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser all right, title and interest in and to all of the Shares that are being tendered hereby and any and all dividends, distributions (including additional Shares) and rights (including the associated Rights) declared, paid or issued with respect to the tendered Shares on or after July 21, 1995 and payable or distributable to the undersigned on a date prior to the transfer to the name of Purchaser (or nominee or transferee of Purchaser) on the Company's stock transfer records of the Shares tendered herewith (except that if the Rights are redeemed by the Company's Board of Directors in accordance with the terms of the Rights Agreement, tendering shareholders who are holders of record as of the applicable record date will be entitled to receive and retain the redemption price of $0.03333 per Right in accordance with the Rights Agreement) (collectively, a "Distribution"), and irrevocably constitutes and appoints the Depositary the true and lawful agent and attorney- in-fact of the undersigned with respect to such Shares (and any Distributions) with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to (a) deliver certificates for such Shares (and any Distributions) or transfer ownership of such Shares (and any Distributions) on the account books maintained by a Book-Entry Transfer Facility, together in either case with appropriate evidences of transfer, to the Depositary for the account of the 5 Purchaser, (b) present such Shares (and any Distributions) for transfer on the books of the Company and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any Distributions), all in accordance with the terms and subject to the conditions of the Offer. The undersigned irrevocably appoints Steven M. Rales, Mitchell P. Rales and Patrick W. Allender, and each of them, or any other designees of Purchaser, as such shareholder's attorneys-in-fact and proxies, each with full power of substitution, to the full extent of such shareholder's rights with respect to the Shares tendered by such shareholder and accepted for payment by Purchaser and with respect to any and all other Shares or other securities (including, if applicable, the Rights) issued or issuable in respect of such Shares on or after July 24, 1995. Such appointment will be effective upon the acceptance for payment of such Shares by Purchaser in accordance with the terms of the Offer. Upon such acceptance for payment, all prior powers of attorney and proxies given by such shareholder with respect to such Shares (and such other shares and securities) will be revoked without further action, and no subsequent proxies may be given nor any subsequent written consents executed (and, if given or executed, will not be deemed effective). The proxies (or other designees of Purchaser) will be empowered to exercise all voting and other rights of such shareholder as they in their sole discretion may deem proper at any annual or special meeting of the Company's shareholders or any adjournment or postponement thereof, by consent in lieu of any such meeting or otherwise. Purchaser reserves the right to require that, in order for Shares and Rights to be deemed validly tendered, immediately upon Purchaser's payment for such Shares Purchaser must be able to exercise full voting rights with respect to such Shares and Rights. The undersigned hereby represents and warrants that (a) the undersigned has full power and authority to tender, sell, assign and transfer the Shares (and any Distributions) tendered hereby and (b) when the Shares are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered title to the Shares (and any Distributions), free and clear of all liens, restrictions, charges and encumbrances, and the same will not be subject to any adverse claim. The undersigned, upon request, shall execute and deliver any signature guarantee or additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares (and any Distributions) tendered hereby. In addition, the undersigned shall promptly remit and transfer to the Depositary for the account of Purchaser any and all Distributions in respect of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and pending such remittance or appropriate assurance thereof, Purchaser will be, subject to applicable law, entitled to all rights and privileges as owner of any such Distribution and may withhold the entire purchase price or deduct from the purchase price the amount or value thereof, as determined by the Purchaser in its sole discretion. No authority herein conferred or agreed to be conferred by this Letter of Transmittal shall be affected by, and all such authority shall survive the death or incapacity of, the undersigned. All obligations of the undersigned hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned. Tenders of Shares (and the associated Rights) made pursuant to the Offer are irrevocable, except that Shares (and the associated Rights) tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date (as defined in the Offer to Purchase) and, unless theretofore accepted for payment by the Purchaser pursuant to the Offer, may also be withdrawn at any time after September 21, 1995. See Section 4 of the Offer to Purchase. The undersigned understands that tenders of Shares and Rights pursuant to any of the procedures described in Section 3 of the Offer to Purchase and in the instructions hereto will constitute a binding agreement between the undersigned and the Purchaser upon the terms and subject to the conditions set forth in the Offer, including the undersigned's representation and warranty that the undersigned owns the Shares and Rights being tendered. Unless otherwise indicated herein under "Special Payment Instructions," please issue the check for the purchase price and/or return any certificate(s) for Shares and Rights not tendered or not accepted for 6 payment in the name(s) of the registered holder(s) appearing under "Description of Shares Tendered" and "Description of Rights Tendered", respectively. Similarly, unless otherwise indicated herein under "Special Delivery Instructions," please mail the check for the purchase price and/or any certificate(s) for Shares and Rights not tendered or not accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under "Description of Shares Tendered" and "Description of Rights Tendered", respectively. In the event that both the Special Delivery Instructions and the Special Payment Instructions are completed, please issue the check for the purchase price and/or any certificate(s) for Shares and Rights not tendered or accepted for payment in the name of, and deliver such check and/or such certificates to, the person or persons so indicated. Unless otherwise indicated herein under "Special Payment Instructions," please credit any Shares and Rights tendered herewith by book- entry transfer that are not accepted for payment by crediting the account at the Book-Entry Transfer Facility designated above. The undersigned recognizes that Purchaser has no obligation, pursuant to the Special Payment Instructions, to transfer any Shares or Rights from the name(s) of the registered holder(s) thereof if the Purchaser does not accept for payment any of the Shares or Rights so tendered. 7 [_]CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING THE SHARES THAT YOU OWN HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11. Number of shares represented by the lost or destroyed certificates: ___________________________________________ Please fill in the remainder of this Letter of Transmittal. SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if certif- To be completed ONLY if certif- icate(s) for Shares and Rights icate(s) for Shares and Rights not tendered or not accepted for not tendered or not accepted for payment and/or the check for the payment and/or the check for the purchase price of Shares and purchase price of Shares and Rights accepted for payment are Rights accepted for payment are to be issued in the name of to be sent to someone other than someone other than the under- the undersigned or to the under- signed or if Shares or Rights signed at an address other than tendered by book-entry transfer that shown above. which are not accepted for pay- ment are to be returned by credit to an account maintained at a Book-Entry Transfer Facili- ty. Issue [_] Check and/or [_] Certificates Mail [_] Check and/or to: [_] Certificates to: Name ____________________________ Name_____________________________ (PLEASE PRINT) (PLEASE PRINT) Address _________________________ _________________________________ Address _________________________ _________________________________ _________________________________ _________________________________ (INCLUDE ZIP CODE) (INCLUDE ZIP CODE) (TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NO.) (SEE (TAXPAYER IDENTIFICATION OR SUBSTITUTE FORM W-9 ON BACK SOCIAL SECURITY NO.) (SEE COVER) SUBSTITUTE FORM W-9 ON BACK COVER) 8 IMPORTANT: SHAREHOLDERS SIGN HERE (ALSO COMPLETE SUBSTITUTE FORM W-9 ON REVERSE SIDE) X__________________________________________________________________________Sign X__________________________________________________________________________Here. SIGNATURE(S) OF HOLDER(S) Dated: ________________________________________________________________________ (Must be signed by the registered holder(s) exactly as name(s) appear(s) on Share Certificate(s) or on a security position listing or by person(s) authorized to become registered holders(s) by certificates and document transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please provide the following information and see Instruction 5.) Name(s): ______________________________________________________________________ _______________________________________________________________________ (PLEASE PRINT) Capacity (Full Title): ________________________________________________________ Address: ______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ (INCLUDE ZIP CODE) Daytime Telephone Number: ( )_________________________________________ (AREA CODE) (SEE SUBSTITUTE FORM W-9 ON REVERSE SIDE) Tax Identification or Social Security No.: GUARANTEE OF SIGNATURE(S) (IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5) Authorized Signature: _________________________________________________________ Name: _________________________________________________________________________ Name of Firm: _________________________________________________________________ Address: ______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ (INCLUDE ZIP CODE) Daytime Telephone Number: ( )__________________________________________ (AREA CODE) Dated: _________________ , 1995 9 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this Letter of Transmittal (a) if this Letter of Transmittal is signed by the registered holder(s) of Shares (which term, for purposes of this document, shall include any participant in a Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Shares) tendered herewith, unless such holder(s) has completed either the box entitled "Special Payment Instructions" or the box entitled "Special Delivery Instructions" above, or (b) if such Shares and/or Rights are tendered for the account of a firm which is a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association (each of the foregoing being referred to as an "Eligible Institution"). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5 of this Letter of Transmittal. 2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by shareholders either if certificates are to be forwarded herewith or, unless an Agent's Message is utilized, if tenders are to be made pursuant to the procedure for tender by book-entry transfer set forth in Section 3 of the Offer to Purchase. Certificates for all physically tendered Shares or timely confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such Shares into the Depositary's account at a Book-Entry Transfer Facility, as well as a properly completed and duly executed Letter of Transmittal (or a facsimile hereof), with any required signature guarantees, or an Agent's Message in connection with a book-entry transfer, and any other documents required by this Letter of Transmittal, must be received by the Depositary at one of its addresses set forth herein prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase) and, unless and until the Purchaser declares that the Rights Condition (as defined in the Offer to Purchase) is satisfied, Rights Certificates or timely confirmation of a book-entry transfer of Rights into the Depositary's account at a Book-Entry Transfer Facility, if available (together with, if Rights are forwarded separately from Shares, any required signature guarantees, or an Agent's Message in the case of a book-entry delivery, and any other documents required by this Letter of Transmittal), must be received by the Depositary at one of its addresses set forth herein prior to the Expiration Date or, if later, within five business days after the date such Rights Certificates are distributed. Shareholders whose certificates for Shares or Rights are not immediately available (including Rights Certificates that have not yet been distributed by the Company) or who cannot deliver their certificates for Shares or Rights and all other required documents to the Depositary prior to the Expiration Date or who cannot complete the procedure for delivery by book-entry transfer on a timely basis may tender their Shares and Rights by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by the Purchaser, must be received by the Depositary on or prior to the Expiration Date; (iii) the certificates (or a Book-Entry Confirmation) representing all tendered Shares, in proper form for transfer, in each case together with the Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry delivery, an Agent's Message) and any other documents required by this Letter of Transmittal, must be received by the Depositary within five New York Stock Exchange, Inc. ("NYSE") trading days after the date of execution of such Notice of Guaranteed Delivery; and (iv) unless and until the Purchaser declares that the Rights Condition is satisfied, the Rights Certificates, if issued, representing the appropriate number of Rights or a Book Entry-Confirmation, if available, in each case together with any required signature guarantees (or, in the case of a book-entry delivery, an Agent's Message) and any other documents required by this Letter of Transmittal, must be received by the Depositary within five NYSE trading days after the date of execution of such Notice of Guaranteed Delivery or, if later, five NYSE trading days after Rights Certificates are distributed to shareholders, all as provided in Section 3 of the Offer to Purchase. If Share Certificates and Rights Certificates are forwarded separately to the Depositary, 10 a properly completed and duly executed Letter of Transmittal must accompany the Share Certificates only; the Rights Certificates may be mailed to the Depositary without including a Letter of Transmittal. For your convenience, a second return envelope has been enclosed for return of Rights Certificates in the event Rights Certificates have been distributed. THE METHOD OF DELIVERY OF SHARE CERTIFICATES OR OF RIGHTS CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted and no fractional Shares and Rights will be purchased. All tendering shareholders, by execution of this Letter of Transmittal (or a facsimile hereof), waive any right to receive any notice of the acceptance of their Shares and Rights for payment. 3. INADEQUATE SPACE. If the space provided herein is inadequate, the certificate numbers and/or the number of Shares and Rights and any other required information should be listed on a separate signed schedule attached hereto. 4. PARTIAL TENDERS. (Not Applicable to shareholders who tender by book-entry transfer) If fewer than all the Shares evidenced by any certificate submitted are to be tendered, fill in the number of Shares which are to be tendered in the box entitled "Number of Shares Tendered." If fewer than all the Rights evidenced by any Rights Certificates submitted are to be tendered, fill in the number of Rights which are to be tendered in the box entitled "Number of Rights Tendered." In such cases, new certificates for the Shares or Rights that were evidenced by your old certificates, but which were not tendered by you, will be sent to you, unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the Expiration Date. All Shares and Rights represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder(s) of the Shares and Rights tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever. If any of the Shares and Rights tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If any of the tendered Shares and Rights are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this Letter of Transmittal or any certificates or stock powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Purchaser of their authority to so act must be submitted. When this Letter of Transmittal is signed by the registered owner(s) of the Shares and Rights listed and transmitted hereby, no endorsements of certificates or separate stock powers are required unless payment is to be made to, or certificates for Shares or Rights not tendered or not purchased are to be issued in the name of, a person other than the registered holder(s). Signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. 11 If this Letter of Transmittal is signed by a person other than the registered owner(s) of the certificate(s) listed, the certificate(s) must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear on the certificate(s). Signatures on such certificates and stock powers must be guaranteed by an Eligible Institution, unless the signature is that of an Eligible Institution. Unless and until the Purchaser declares the Rights Condition to be satisfied, if Rights Certificates have been distributed to holders of Shares, such holders are required to tender Rights Certificate(s) representing a number of Rights equal to the number of Shares tendered in order to effect a valid tender of such Shares. It is necessary that shareholders follow all signature requirements of this Instruction 5 with respect to the Rights in order to tender such Rights. For your convenience, a second return envelope is enclosed for return of Rights Certificates in the event Rights Certificates have been distributed. 6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6, Purchaser will pay any stock transfer taxes with respect to the purchase of Shares and Rights pursuant to the Offer. If, however, payment of the purchase price is to be made to, or if certificate(s) for Shares and Rights not tendered or accepted for payment are to be registered in the name of, any person other than the registered owner(s), or if tendered certificate(s) are registered in the name of any person other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such person) payable on account of the transfer to such person will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or an exemption therefrom, is submitted. 7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in the name of, and/or certificates for Shares and Rights not tendered or not accepted for payment are to be issued or returned to, a person other than the signer of this Letter of Transmittal or if a check and/or such certificates are to be returned to a person other than the person(s) signing this Letter of Transmittal or to an address other than that shown in this Letter of Transmittal, the appropriate boxes on this Letter of Transmittal must be completed. A shareholder who tenders by book-entry transfer may request that Shares and/or Rights not accepted for payment be credited to such account maintained at a Book-Entry Transfer Facility as such shareholder may designate under "Special Payment Instructions." If no such instructions are given, such Shares or Rights not accepted for payment will be returned by crediting the account at the Book-Entry Transfer Facility designated above. 8. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by Purchaser in whole or in part at any time and from time to time in its sole discretion. 9. BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income tax law, a shareholder whose tendered Shares or Rights are accepted for payment is required to provide the Depositary with such shareholder's correct taxpayer identification number ("TIN"), generally the shareholder's social security or federal employer identification number, and certain other information, on Substitute Form W-9 below. If the Depositary is not provided with the correct TIN, the Internal Revenue Service may subject the shareholder or other payee to a $50 penalty. In addition, payments that are made to such shareholder or other payee with respect to Shares or Rights purchased pursuant to the Offer may be subject to 31% backup withholding. Certain shareholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, the shareholder must submit a Form W-8, signed under penalties of perjury, attesting to that individual's exempt status. A Form W-8 can be obtained from the Depositary. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for more instructions. 12 If backup withholding applies, the Depositary is required to withhold 31% of any such payments made to the shareholder or other payee. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. The box in Part 3 of the Substitute Form W-9 may be checked if the tendering shareholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked, the shareholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in Part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Depositary will withhold 31% of all payments made prior to the time a properly certified TIN is provided to the Depositary. The shareholder is required to give the Depositary the TIN (e.g., social security number or employer identification number) of the record owner of the Shares and Rights or of the last transferee appearing on the transfers attached to, or endorsed on, the Shares and Rights. If the Shares or Rights are in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report. 10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests for assistance may be directed to the Dealer Manager or the Information Agent at their respective addresses and telephone numbers set forth below. Additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may also be obtained from the Information Agent or from brokers, dealers, commercial banks or trust companies. 11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing Shares or Rights has been lost, destroyed or stolen, the shareholder should promptly notify the Depositary by checking the box immediately preceding special payment/special delivery instructions and indicating the number of Shares lost. The shareholder will then be instructed as to the steps that must be taken in order to replace the certificate. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost or destroyed certificates have been followed. IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER OR THE NOTICE OF GUARANTEED DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO PURCHASE). 13 TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS (SEE INSTRUCTION 9) PAYER'S NAME: BANK OF AMERICA ILLINOIS - -------------------------------------------------------------------------------- SUBSTITUTE FORM W-9 PART 1 -- PLEASE _____________________ PROVIDE YOUR TIN IN SOCIAL SECURITY THE BOX AT RIGHT AND NUMBER CERTIFY BY SIGNING AND DEPARTMENT OF THE TREASURY DATING BELOW INTERNAL REVENUE SERVICE OR PAYER'S REQUEST FOR _____________________ TAXPAYER IDENTIFICATION EMPLOYER ID NUMBER NUMBER ("TIN") - -------------------------------------------------------------------------------- PART 2--CERTIFICATION--Under penalties of perjury, I certify that: (1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me) and (2) I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding. CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because of under-reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out such Item (2). - -------------------------------------------------------------------------------- SIGNATURE ________________ DATE ________________ PART 3--AWAITING TIN [_] NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. 14 CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment, 31% of all reportable payments made to me will be withheld but that such amounts will be refunded to me if I then provide a Taxpayer Identification Number within sixty (60) days. Signature: ___________________________ Date: ___________________________ Questions and requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers listed below. Additional copies of the Offer to Purchase, the Letter of Transmittal and other tender offer materials may be obtained from the Information Agent as set forth below, and will be furnished promptly at the Purchaser's expense. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: D.F. KING & CO., INC. 77 Water Street New York, New York 10005 (212) 269-5550 (Call Collect) or (800) 758-7358 The Dealer Manager for the Offer is: MERRILL LYNCH & CO. World Financial Center North Tower New York, New York 10281-1305 (212) 236-4565 (Call Collect) 15 EX-11.(A)(3) 4 NOTICE OF GUARANTEED DELIVERY EXHIBIT 11(a)(3) NOTICE OF GUARANTEED DELIVERY FOR TENDER OF SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS) OF JOSLYN CORPORATION This notice of Guaranteed Delivery or one substantially equivalent hereto must be used to accept the Offer (as defined below) if certificates representing shares of Common Stock, par value $1.25 per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and/or if applicable, certificates for the associated Common Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as of September 2, 1994, between the Company and The First National Bank of Chicago, an Illinois banking corporation, as Rights Agent (as amended, the "Rights Agreement") are not immediately available (including, if the Distribution Date (as defined in the Offer to Purchase (as defined below) has occurred), because certificates for Rights have not yet been distributed) or time will not permit all required documents to reach Bank of America Illinois (the "Depositary") on or prior to the Expiration Date (as defined in the Offer to Purchase), or, in the case of Shares and, if available, Rights, the procedures for delivery by book-entry transfer cannot be completed on a timely basis. This Notice of Guaranteed Delivery may be delivered by hand or sent by facsimile transmission or mail to the Depositary. See Section 3 of the Offer to Purchase. THE DEPOSITARY FOR THE OFFER IS: BANK OF AMERICA ILLINOIS By Mail: By Facsimile By Hand or Overnight Bank of America Illinois Transmission: Courier: Corporate Trust Depositary (312) 923-0271 Bank of America Illinois P.O. Box 805857 Chicago, 231 LaSalle Street 19 IL 60680-4120 To Confirm: Floor Window(Clark Street (800) 962-9324 Side) Chicago, IL 60697 Attn: Corporate Trust Operations Window DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL. Ladies and Gentlemen: The undersigned hereby tenders to TK Acquisition Corporation, a Delaware corporation ("Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), and in the related Letter of Transmittal (which together constitute the "Offer"), receipt of each of which is hereby acknowledged, the number of Shares and the number of Rights indicated below pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Number of Shares: _____________Shares Names(s) of Record Holder(s): _______ _____________________________________ Number of Rights: _____________Rights Address(es): ________________________ _____________________________________ Certificate No(s). (if available): __ _____________________________________ _____________________________________ _____________________________________ Daytime Area Code and Telephone Number(s): _____________________________________ If Share(s) and Right(s) will be Signature(s): _______________________ tendered by book-entry transfer, _____________________________________ check one box. _____________________________________ [_] ________________________ [_] ________________________ [_] ________________________ Account No. _______________ THE GUARANTEE BELOW MUST BE COMPLETED GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm that is a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program, hereby (1) represents that the tender of Shares and/or Rights effected hereby complies with Rule 14e-4 under the Securities and Exchange Act of 1934, as amended, and (2) guarantees to deliver to the Depositary, at one of its addresses set forth above, the certificates representing all tendered Shares and/or Rights, in proper form for transfer, or, in the case of Shares and, if available, Rights, a Book-Entry Confirmation (as defined in the Offer to Purchase), together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, or, in the case of book-entry transfer of Shares and, if available, Rights, an Agent's Message (as defined in the Offer to Purchase), and any other documents required by the Letter of Transmittal within (a) in the case of Shares, five New York Stock Exchange, Inc. ("NYSE") trading days after the date of execution to this Notice of Guaranteed Delivery or (b) in the case of Rights, a period ending on the later of (i) five NYSE trading days after the date of execution of this Notice of Guaranteed Delivery and (ii) five business days after the date certificates for Rights are distributed to holders of Shares. Name of Firm: _______________________ _____________________________________ (AUTHORIZED SIGNATURE) Address: ____________________________ _____________________________________ Title: ______________________________ Area Code and Name: _______________________________ Telephone Number: ___________________ _____________________________________ (PLEASE TYPE OR PRINT) Date: _______________________________ NOTE: DO NOT SEND CERTIFICATES FOR SHARES OR RIGHTS WITH THIS NOTICE OF GUARANTEED DELIVERY. CERTIFICATES FOR SHARES OR RIGHTS SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. 2 EX-11.(A)(4) 5 BROKER, DEALER LETTER EXHIBIT 11(a)(4) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS) OF JOSLYN CORPORATION AT $32 NET PER SHARE BY TK ACQUISITION CORPORATION AN INDIRECT WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, AUGUST 18, 1995, UNLESS THE OFFER IS EXTENDED. July 24, 1995 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been appointed by TK Acquisition Corporation, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), to act as Dealer Manager in connection with the Purchaser's offer to purchase for cash all the outstanding shares of Common Stock, par value $1.25 per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and (unless and until the Purchaser declares the Rights Condition (as defined in the Offer to Purchase) is satisfied) the associated Common Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as of September 2, 1994 (the "Rights Agreement"), between the Company and The First National Bank of Chicago, an Illinois banking corporation, as Rights Agent, at a purchase price of $32 per Share (and associated Right), net to the seller in cash without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), and in the related Letter of Transmittal (which together constitute the "Offer") enclosed herewith. Unless and until the Purchaser declares that the Rights Condition is satisfied, holders of Shares will be required to tender one Right for each Share tendered in order to effect a valid tender of such Share. If the Distribution Date (as defined in the Offer to Purchase) has not occurred prior to the time Shares are tendered pursuant to the Offer, a tender of Shares will constitute a tender of the associated Rights. If the Distribution Date has occurred and certificates representing Rights ("Rights Certificates") have been distributed by the Company to holders of Shares, such holders of Shares shall be required to tender Rights Certificates representing a number of Rights equal to the number of Shares being tendered in order to effect valid tender of such Shares. Holders of Shares and Rights whose certificates for such Shares (the "Share Certificates") and, if applicable, Rights Certificates are not immediately available or who cannot deliver their Share Certificates or, if applicable, their Rights Certificates, and all other required documents to the Depositary (as defined below) prior to the Expiration Date (as defined in the Offer to Purchase), or who cannot complete the procedures for book-entry transfer on a timely basis, must tender their Shares and Rights according to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Unless the context otherwise requires, all references to Shares shall include the associated Rights. All references to the Rights shall include all benefits that may inure to shareholders of the Company or to holders of Rights pursuant to the Rights Agreement. Please furnish copies of the enclosed materials to those of your clients for whose accounts you hold Shares registered in your name or in the name of your nominee. The Offer is conditioned upon, among other things: (1) there being validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Shares which, when aggregated with the 613,550 Shares currently owned by Parent, represent at least two-thirds of the total number of outstanding Shares determined on a fully diluted basis on the date of purchase; (2) the Rights having been redeemed by the Company's Board of Directors or Purchaser being satisfied, in its sole discretion, that the Rights have been invalidated or are otherwise inapplicable to the Offer and the Proposed Merger; and (3) Purchaser being satisfied, in its sole discretion, that after consummation of the Offer, the restrictions on business combinations as defined and contained in Sections 7.85 and 11.75 of the Illinois Business Corporation Act will not apply to the Proposed Merger. The Offer is also subject to other terms and conditions, including the expiration or termination of the applicable antitrust waiting period. See the Introduction and Sections 1, 14 and 15 of the Offer to Purchase. Enclosed herewith for your information and forwarding to your clients are copies of the following documents: 1.The Offer to Purchase, dated July 24, 1995. 2.The blue Letter of Transmittal to tender Shares for your use and for the information of your clients. Facsimile copies of the Letter of Transmittal may be used to tender Shares. 3.The gray Notice of Guaranteed Delivery for Shares and Rights to be used to accept the Offer if Share Certificates or Rights Certificates are not immediately available or if such certificates and all other required documents cannot be delivered to Bank of America Illinois (the "Depositary") by the Expiration Date or if the procedures for book-entry transfer cannot be completed by the Expiration Date. 4.A green printed form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Offer. 5.Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9. 6.A return envelope addressed to Bank of America Illinois, the Depositary. YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON AUGUST 18, 1995 UNLESS THE OFFER IS EXTENDED. In order to take advantage of the Offer, (i) a duly executed and properly completed Letter of Transmittal and any required signature guarantees, or an Agent's Message (as defined in the Offer to Purchase) in connection with a book-entry delivery of Shares or Rights, and other required documents should be sent to the Depositary, and (ii) either Share Certificates (and if applicable, Rights Certificates) representing the tendered Shares (and, if applicable, tendered Rights) should be delivered to the Depositary, or such Shares (and, if applicable, tendered Rights) should be tendered by book-entry transfer into the Depositary's account maintained at one of the Book-Entry Transfer Facilities (as described in the Offer to Purchase), all in accordance with the instructions set forth in the Letter of Transmittal and the Offer to Purchase. If holders of Shares wish to tender, but it is impracticable for them to forward their Share Certificates or, if applicable, Rights Certificates or other required documents on or prior to the Expiration Date or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures specified in Section 3 of the Offer to Purchase. 2 The Purchaser will not pay any commissions or fees to any broker, dealer or other person (other than the Dealer Manager, the Depositary and D.F. King & Co., Inc. (the "Information Agent") (as described in the Offer to Purchase)) for soliciting tenders of Shares pursuant to the Offer. The Purchaser will, however, upon request, reimburse you for customary clerical and mailing expenses incurred by you in forwarding any of the enclosed materials to your clients. The Purchaser will pay or cause to be paid any stock transfer taxes payable on the transfer of Shares to it, except as otherwise provided in Instruction 6 of the Letter of Transmittal. Any inquiries you may have with respect to the Offer should be addressed to Merrill Lynch, Pierce, Fenner & Smith Incorporated, the Dealer Manager, or the Information Agent, at their respective addresses and telephone numbers set forth on the back cover of the Offer to Purchase. Additional copies of the enclosed materials may be obtained from the Information Agent. Very truly yours, Merrill Lynch, Pierce, Fenner & Smith Incorporated NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE PARENT, THE DEALER MANAGER, THE COMPANY, THE DEPOSITARY OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN. 3 EX-11.(A)(5) 6 CLIENT LETTER EXHIBIT 11(a)(5) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS) OF JOSLYN CORPORATION AT $32 NET PER SHARE BY TK ACQUISITION CORPORATION AN INDIRECT WHOLLY OWNED SUBSIDIARY OF DANAHER CORPORATION THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, AUGUST 18, 1995, UNLESS THE OFFER IS EXTENDED. July 24, 1995 To Our Clients: Enclosed for your consideration is an Offer to Purchase dated July 24, 1995 (the "Offer to Purchase"), and the related Letter of Transmittal relating to an offer by TK Acquisition Corporation, a Delaware corporation ("Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Danaher"), to purchase all of the outstanding shares of Common Stock, $1.25 par value per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and (unless and until the Purchaser declares that the Rights Condition (as defined in the Offer to Purchase) is satisfied) the associated Common Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as of September 2, 1994, (the "Rights Agreement"), between the Company and The First National Bank of Chicago, an Illinois banking corporation, as Rights Agent, at a purchase price of $32 per Share (and associated Right), net to the seller in cash without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal (which together constitute the "Offer"). Unless the context requires otherwise, all references to "Shares" shall be deemed to refer also to the associated Rights. We are the holder of record of Shares held by us for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account. Unless and until the Purchaser declares that the Rights Condition (as defined below) is satisfied, if certificates representing Rights (the "Rights Certificates") have been distributed to holders of Shares, such holders are required to tender Rights Certificate(s) representing a number of Rights equal to the number of Shares being tendered in order to effect a valid tender of such Shares. Based on the Company's filings with the Securities and Exchange Commission (the "Commission"), until the Distribution Date (as defined in the Offer to Purchase), the surrender for transfer of any of the certificates representing Shares (the "Share Certificates") will also constitute the surrender for transfer of the Rights associated with the Shares represented by such Share Certificates. Based on the Company's filings with the Commission, as soon as practicable following the Distribution Date, the Rights Certificates will be mailed to holders of record of Shares as of the close of business on the Distribution Date; after the Distribution Date, such separate Rights Certificates alone will evidence the Rights. See Section 3 of the Offer to Purchase. We request instructions as to whether you wish to have us tender on your behalf any or all of such Shares held by us for your account, pursuant to the terms and subject to the conditions set forth in the Offer to Purchase. Your instructions to tender Shares held by us for your account will also constitute a direction to us to tender a number of Rights held by us for your account equal to the number of Shares tendered. Your attention is directed to the following: 1.The tender price is $32 per Share, net to the seller in cash without interest thereon. 2.The Offer is made for all of the outstanding Shares. 3.The Offer and withdrawal rights will expire at 12:00 Midnight, New York City time, on August 18, 1995 unless the Offer is extended. 4.The Offer is conditioned upon, among other things: (1) there being validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Shares which, when aggregated with the 613,550 Shares currently owned by Danaher, represents at least two-thirds of the total number of outstanding Shares determined on a fully diluted basis on the date of purchase; (2) the Rights having been redeemed by the Company's Board of Directors or Purchaser being satisfied, in its sole discretion, that the Rights have been invalidated or are otherwise inapplicable to the Offer and the Proposed Merger; and (3) Purchaser being satisfied, in its sole discretion, that after consummation of the Offer, the restrictions on business combinations as defined and contained in Sections 7.85 and 11.75 of the Illinois Business Corporation Act will not apply to the Proposed Merger. The Offer is also subject to other terms and conditions, including the expiration or termination of the applicable antitrust waiting period. See the Introduction and Sections 1, 14 and 15 of the Offer to Purchase. 5.Tendering shareholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of Shares pursuant to the Offer. The Offer is being made solely by the Offer to Purchase and the related Letter of Transmittal. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares residing in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. However, the Purchaser may, in its discretion, take such action as it may deem necessary to make the Offer in any jurisdiction and extend the Offer to holders of Shares in such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of the Purchaser by the Dealer Manager or one or more registered brokers or dealers that are licensed under the laws of such jurisdiction. If you wish to have us tender any or all of the Shares held by us for your account, please instruct us by completing, executing and returning to us the instruction form contained in this letter. If you authorize a tender of your Shares, all such Shares will be tendered unless otherwise specified in such instruction form. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf prior to the expiration of the Offer. 2 INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS) OF JOSLYN CORPORATION The undersigned acknowledge(s) receipt of your letter enclosing the Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), and the related Letter of Transmittal pursuant to an offer by TK Acquisition Corporation, a Delaware corporation and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation, to purchase all outstanding shares of Common Stock, $1.25 par value per share (the "Shares"), of Joslyn Corporation, an Illinois corporation, and (unless and until the Purchaser declares that the Rights Condition (as defined in the Offer to Purchase) is satisfied) the associated common stock purchase rights (the "Rights"). This will instruct you to tender the number of Shares and Rights indicated below (or, if no number is indicated below, all Shares and Rights) which are held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal furnished to the undersigned. NUMBER OF SHARES (AND RIGHTS) TO SIGN HERE BE TENDERED* __________________________________ Signature(s) _____________ Shares (and Rights) __________________________________ Dated _____________________, 1995 Please print name(s) __________________________________ Address __________________________________ Area Code and Telephone Number __________________________________ Tax Identification or Social Secu- rity Number - -------- * Unless otherwise indicated, it will be assumed that all of your Shares (and Rights) held by us for your account are to be tendered. 3 EX-11.(A)(6) 7 W-9 GUIDELINES EXHIBIT 11(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. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer.
- -------------------------------------------------- ----------------------------------------------- GIVE THE GIVE THE EMPLOYER FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF-- NUMBER OF-- - -------------------------------------------------- ----------------------------------------------- 1. An individual's account The individual 9. A valid trust, estate, The legal entity or pension trust (Do not furnish 2. Two or more individuals The actual owner the identifying (joint account) of the account number of the or, if combined personal funds, any one representative of the or trustee individuals/1/ unless the legal entity itself is 3. Husband and wife (joint The actual owner not designated account) of the account in the account or, if joint title.)/5/ funds, either person/1/ 10. Corporate account The corporation 4. Custodian account of a The minor/2/ 11. Religious, charitable, The organization minor (Uniform Gift to or educational Minors Act) organization account 5. Adult and minor (joint The adult or, if 12. Partnership account The partnership account) the minor is the held in the name of the only business contributor, the minor/1/ 13. Association, club, or The organization 6. Account in the name of The ward, minor, other tax-exempt guardian or committee or incompetent organization for a designated ward, person/3/ minor, or incompetent 14. A broker or registered The broker or person nominee nominee 7. a. The usual revocable The grantor- 15. Account with the The public savings trust account trustee/1/ Department of entity (grantor is also Agriculture in the name trustee) of a public entity b. So-called trust account The actual (such as a State or that is not a legal or owner/1/ local government, valid trust under State school district, or law prison) that receives 8. Sole proprietorship The owner/4/ agricultural program account payments - -------------------------------------------------- -----------------------------------------------
(1) List first and circle the name of the person whose number you furnish. (2) Circle the minor's name and furnish the minor's social security number. (3) Circle the ward's, minor's or incompetent person's name and furnish such person's social security number. (4) Show the name of the owner. (5) List first and circle the name of the legal trust, estate, or pension trust. NOTE: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 OBTAINING A NUMBER If you don't have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on ALL payments include the following: . A corporation. . A financial institution. . An organization exempt from tax under section 501(a), or an individual re- tirement plan. . The United States or any agency or instrumentality thereof. . A State, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof. . A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. . An international organization or any agency, or instrumentality thereof. . A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. . A real estate investment trust. . A common trust fund operated by a bank under section 584(a). . An exempt charitable remainder trust, or a non-exempt trust described in section 4947(a)(1). . An entity registered at all times under the Investment Company Act of 1940. . A foreign central bank of issue. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: . Payments to nonresident aliens subject to withholding under section 1441. . Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. . Payments of patronage dividends where the amount received is not paid in money. . Payments made by certain foreign organizations. . Payments made to a nominee. Payments of interest not generally subject to backup withholding include the following: . Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not pro- vided your correct taxpayer identification number to the payer. . Payments of tax-exempt interest (including exempt-interest dividends under section 852). . Payments described in section 6049(b)(5) to non-resident aliens. . Payments on tax-free covenant bonds under section 1451. . Payments made by certain foreign organizations. . Payments made to a nominee. Exempt payees described above should file Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDEN- TIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE FORM. Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under sections 6041, 6041(a), 6045, and 6050A. PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend, interest, or other payments to give taxpayer identification numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes. Payers must be given the numbers whether or not recipients are required to file a tax return. Payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to include any portion of an includible payment for interest, dividends, or patronage dividends in gross income, such failure will be treated as being due to negligence and will be subject to a penalty of 5% on any portion of an under-payment attributable to that failure unless there is clear and convincing evidence to the contrary. (3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE EX-11.(A)(7) 8 SUMMARY ADVERTISEMENT AS PUBLISHED ON JULY 24 EXHIBIT 11(a)(7) This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares. The Offer is made solely by the Offer to Purchase dated July 24, 1995 and the related Letter of Transmittal, and is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares or Rights residing in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. However, the Purchaser may, in its discretion, take such action as it may deem necessary to make the Offer in any jurisdiction and extend the Offer to holders of Shares in such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Purchaser by Merrill Lynch, Pierce, Fenner & Smith Incorporated or one or more registered brokers or dealers that are licensed under the laws of such jurisdiction. Notice of Offer to Purchase For Cash All Outstanding Shares of Common Stock (Including the Associated Common Stock Purchase Rights) of Joslyn Corporation at $32 Net Per Share by TK Acquisition Corporation an indirect wholly owned subsidiary of Danaher Corporation TK Acquisition Corporation, a Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary of Danaher Corporation, a Delaware corporation ("Parent"), is offering to purchase all outstanding shares of Common Stock, par value $1.25 per share (the "Shares"), of Joslyn Corporation, an Illinois corporation (the "Company"), and (unless and until the Purchaser declares that the Rights Condition (as defined in the Offer to Purchase described below) is satisfied), the associated Common Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 10, 1988, as amended as of September 2, 1994 (the "Rights Agreement"), between the Company and The First National Bank of Chicago, an Illinois banking corporation, at a price of $32.00 per Share (and associated Right), net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 24, 1995 (the "Offer to Purchase"), and in the related Letter of Transmittal (which together constitute the "Offer"). Unless the context otherwise requires, all references to Shares shall include the associated Rights, and all references to Rights shall include all benefits that may inure to the shareholders of the Company or to holders of the Rights pursuant to the Rights Agreement. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, AUGUST 18, 1995, UNLESS THE OFFER IS EXTENDED. The Offer is conditioned upon, among other things: (1) there being validly tendered and not properly withdrawn prior to the expiration of the - 1 - Offer that number of Shares which, when aggregated with the Shares currently owned by Parent, represent at least two-thirds of the total number of outstanding Shares determined on a fully diluted basis on the date of purchase, (2) the Rights having been redeemed by the Company's Board of Directors or the Purchaser being satisfied, in its sole discretion, that such Rights have been invalidated or are otherwise inapplicable to the Offer and the Proposed Merger (as defined below) (the "Rights Condition") and (3) the Purchaser being satisfied, in its sole discretion, that after consummation of the Offer, the restrictions on business combinations as defined and contained in Section 7.85 and 11.75 of the Illinois Business Corporation Act will not apply to the Proposed Merger. The Offer is also subject to other terms and conditions contained in the Offer to Purchase. See the Introduction and Sections 1, 14 and 15 of the Offer to Purchase. The purpose of the Offer is to acquire control of, and the entire equity interest in, the Company. The Purchaser currently intends to propose and seek to have the Company consummate, as soon as practicable following the completion of the Offer, a merger or similar business combination with the Purchaser (the "Proposed Merger"), pursuant to which each then outstanding Share (other than Shares owned by Parent or any of its wholly owned subsidiaries, Shares held in the treasury of the Company and Shares held by shareholders who perfect appraisal rights under the Illinois Business Corporation Act) would be converted into the right to receive cash in the same amount as received per Share in the Offer, and the Company would become an indirect wholly owned subsidiary of Parent. The consummation of the Proposed Merger would be subject to a number of factors (including satisfaction of various conditions) discussed in the Introduction and in Sections 1, 14 and 15 of the Offer to Purchase. Unless and until the Purchaser declares that the Rights Condition is satisfied, holders of Shares will be required to tender one associated Right for each Share tendered in order to effect a valid tender of such Share. According to the Rights Agreement, Rights will become exercisable after the Distribution Date (as defined in the Offer to Purchase) and, as soon as practicable following the Distribution Date, separate certificates representing the Rights ("Rights Certificates") will be mailed to holders of record of Shares as of the Distribution Date. If the Distribution Date does not occur prior to the Expiration Date (as defined in the Offer to Purchase), a tender of Shares will also constitute a tender of the associated Rights. If the Distribution Date occurs and Rights Certificates are distributed to holders of Shares prior to the time a holder's Shares are purchased pursuant to the Offer, in order for Rights (and corresponding Shares) to be validly tendered, Rights Certificates representing a number of Rights equal to the number of Shares tendered must be delivered to the Depositary (as defined below) or, if available, a confirmation of book-entry transfer received by the Depositary with respect thereto. If the Distribution Date occurs and Rights Certificates are not distributed prior to the time the Shares are purchased pursuant to the Offer, a tender of Shares constitutes an agreement by the tendering shareholder to deliver Rights Certificates representing a number of Rights equal to the number of Shares tendered pursuant to the Offer to the Depositary within five business days after the date Rights Certificates are distributed. The Purchaser reserves the right to require that the Depositary receive Rights Certificates, or a confirmation of book-entry transfer, if available, with respect to such Rights, prior to accepting - 2 - the related Shares for payment pursuant to the Offer if the Distribution Date occurs prior to the Expiration Date. In all cases, payment for Shares tendered and purchased pursuant to the Offer will be made only after timely receipt by the Depositary of, among other things, Rights Certificates, if such Rights Certificates have been distributed to holders of Shares. If the Purchaser declares that the Rights Condition is satisfied, the Purchaser will not require delivery of Rights Certificates. For purposes of the Offer, the Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when the Purchaser gives oral or written notice to Bank of America Illinois (the "Depositary") of the Purchaser's acceptance of such Shares for payment pursuant to the Offer. In all cases, upon the terms and subject to the conditions of the Offer, payment for Shares purchased pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary, which will act as agent for tendering shareholders for the purpose of receiving payment from the Purchaser and transmitting such payment to validly tendering shareholders. Under no circumstances will interest on the purchase price for Shares and Rights be paid by the Purchaser, regardless of any delay in making such payment. In all cases, payment for Shares tendered and purchased pursuant to the Offer will be made only after timely receipt by the Depositary of (i) the certificates evidencing such Shares (the "Share Certificates") and Rights Certificates (if required) or timely confirmation of a book-entry transfer of such Shares or Rights into the Depositary's account at one of the Book-Entry Transfer Facilities (as defined in Section 2 of the Offer to Purchase) pursuant to the procedure set forth in Section 3 of the Offer to Purchase, (ii) the Letter of Transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees and (iii) any other documents required under the Letter of Transmittal. The Purchaser expressly reserves the right, in its sole discretion, at any time and from time to time, to extend for any reason the period of time during which the Offer is open, including the occurrence of any condition specified in Section 14 of the Offer to Purchase, by giving oral or written notice of such extension to the Depositary. Any such extension will be followed as promptly as practicable by public announcement thereof, such announcement to be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date of the Offer. During any such extension, all Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the rights of a tendering shareholder to withdraw his Shares. Tenders of Shares made pursuant to the Offer are irrevocable except that such Shares may be withdrawn at any time prior to 12:00 Midnight, New York City time, on Friday, August 18, 1995 (or the latest time and date at which the Offer, if extended by the Purchaser, shall expire) and, unless theretofore accepted for payment by the Purchaser pursuant to the Offer, may also be withdrawn at any time after September 21, 1995. For a withdrawal to be effective, a written, telegraphic, telex or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover page of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of such Shares, if different from that of the person - 3 - who tendered such Shares. If Share Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the serial numbers shown on such Share Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution (as defined in Section 3 of the Offer to Purchase), unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in Section 3 of the Offer to Purchase, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares. A withdrawal of Shares shall also constitute a withdrawal of the associated Rights. Rights may not be withdrawn unless the associated Shares are also withdrawn. All questions as to the form and validity (including the time of receipt) of any notice of withdrawal will be determined by the Purchaser, in its sole discretion, whose determination will be final and binding. The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is incorporated herein by reference. A request is being made to the Company for the use of its shareholder list and security position listings for the purpose of disseminating the Offer to holders of Shares and communicating with shareholders regarding proxy solicitations in connection with the meeting of shareholders. Upon compliance by the Company with such request, the Offer to Purchase and the related Letter of Transmittal and, if required, other relevant materials will be mailed to record holders of Shares whose names appear on the Company's shareholder list and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the shareholder list and the list of holders of Rights, if applicable, or who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of Shares and Rights. The Offer to Purchase and the related Letter of Transmittal contain important information which should be read before any decision is made with respect to the Offer. Questions and requests for assistance or for additional copies of the Offer to Purchase and the related Letter of Transmittal and other tender offer materials may be directed to the Information Agent or the Dealer Manager as set forth below, and copies will be furnished promptly at the Purchaser's expense. No fees or commissions will be paid to brokers, dealers or other persons (other than the Information Agent and the Dealer Manager) for soliciting tenders of Shares pursuant to the Offer. The Information Agent for the Offer is: D.F. King & Co., Inc. 77 Water Street New York, New York 10005 Banks and Brokers Call Collect (212) 269-5550 All Others Call Toll Free (800) 758-7358 The Dealer Manager for the Offer is: Merrill Lynch & Co. World Financial Center - 4 - North Tower New York, New York 10281-1305 (212) 236-4565 (Call Collect) July 24, 1995 - 5 - EX-11.(A)(8) 9 PRESS RELEASE EXHIBIT 11(a)(8) FOR IMMEDIATE RELEASE CONTACT: Patrick Allender Chief Financial Officer (202) 828-0850 DANAHER ANNOUNCES TENDER OFFER TO ACQUIRE JOSLYN CORPORATION FOR $32 PER SHARE IN CASH --------------------------------------------------- WASHINGTON, D.C., July 24, 1995 -- Danaher Corporation (NYSE:DHR) announced today that it is commencing a cash tender offer for all outstanding shares of common stock of Joslyn Corporation (OTC:JOSL) at a price of $32 per common share. The tender offer will be initiated by a subsidiary of Danaher, TK Acquisition Corporation. Joslyn has approximately 7.2 million shares outstanding, giving the transaction a total equity value, including the approximately 8.6% of Joslyn's common stock currently owned by Danaher, of approximately $229 million. The offer is not subject to a financing condition. Danaher has informed Joslyn's management of its offer. A copy of a letter to William E. Bendix, Chairman of the Board of Joslyn, is attached. In the letter, George M. Sherman, President, Chief Executive Officer and Director of Danaher, stated, "We believe that an all cash price of $32 net per share for all shares presents a very attractive opportunity for Joslyn's shareholders." Mr. Sherman's letter noted that Joslyn's stock has generally traded in the low to mid-twenties, and that the tender offer price represents a premium of approximately 30% over the closing price before Danaher's July 7 proposal to acquire Joslyn at $32 per share. The terms and conditions of the offer will be set forth in offering documents being filed with the Securities and Exchange Commission today. The offer is conditioned, among other things, upon the acquisition of at least two-thirds of Joslyn's common stock on a fully diluted basis, and the elimination of Joslyn's "poison pill" and certain other anti-takeover provisions. In addition, Danaher announced that it is commencing legal action seeking, among other things, an order striking down provisions in Joslyn's poison pill that purport to require the approval of Joslyn's current directors or their designees to dismantle the poison pill. The litigation also seeks to require Joslyn's directors to render other anti-takeover provisions inapplicable to Danaher's offer. Danaher also announced that it expects its subsidiary to file with the Securities and Exchange Commission preliminary solicitation materials relating to the calling of a special meeting of Joslyn's shareholders in order to expedite the tender offer. Joslyn Corporation provides electric power quality, protection, switch, control and distribution support products to the electric utility, telecommunications and industrial markets. Danaher Corporation is a leading manufacturer of Tools, Process/Environmental Controls and Transportation Products. EX-11.(B)(1)(B) 10 LETTER FROM BANK OF AMERICA TO PARENT EXHIBIT 11(b)(1)(b) [LETTERHEAD OF BANK OF AMERICA] July 20, 1995 Via facsimile: (202) 828-0860 2 pages. Mr. C. Scott Brannan Vice President & Controller Danaher Corporation 1250 24th Street, N.W. Washington, DC 20037 Dear Scott: Bank of America is please to extend to Danaher Corporation a commitment to provide a $50 million 364-day revolving credit facility, the terms and conditions which are summarized on the attached indicative term sheet and subject to execution of final credit documentation. Scott, Bank of America highly values the relationship with Danaher and looks forward to further enhancing it in mutually beneficial ways. Unless accepted, this commitment terminates on August 31, 1995 Sincerely, /s/ Donald J. Chin Accepted and agreed: DANAHER CORPORATION By: /s/ PWA Title: CFO Date: July 23, 1995 ATTACHMENT DANAHER CORPORATION INDICATIVE TERMS AND CONDITIONS Borrower: Danaher Corporation Bank: Bank of America National Trust and Savings Association and/or its affiliated banks. Facility: 364-day revolving credit facility. Purpose: General corporate. Amount: Up to US$50,000,000. Maturity: 364 days from closing of credit documentation but no later than August 31, 1996. Pricing: Facility fee - 0.10% per annum, payable on the calendar quarter-end in arrears based upon a 360 day-year. Subject to adjustment based upon increasing leverage similar to the Borrower's existing credit agreement. LIBOR Interest Rate - LIBOR plus 0.375% for interest periods of 1, 2 or 3 months, payable at the end of each interest period based upon a 360 day-year. Subject to adjustment based upon increasing leverage similar to the Borrower's existing credit agreement. Money Market Interest Rate - an absolute rate of interest for a specified interest period as mutually agreed upon between Borrower and Bank, payable at the end of interest period or as agreed upon based upon a 360 day-year. Financial Covenants: Identical to those found in the Borrower's existing $200 mm syndicated revolver credit facility dated September 7, 1990, as amended from time to time. Representations and Warranties: Similar to those found in Borrower's existing credit agreement. Covenants: Similar to those found in Borrower's existing credit agreement. Events of Default: Similar to those found in Borrower's existing credit agreement. Miscellaneous: Similar provisions to those found in Borrower's existing credit agreement. July 20, 1995 EX-11.(G)(1) 11 COMPLAINT SEEKING DECLARATORY & INJUNCTIVE RE EXHIBIT 11(g)(1) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DANAHER CORPORATION and ) TK ACQUISITION CORPORATION, ) ) Plaintiffs, ) ) v. ) Civil Action No. ) JOSLYN CORPORATION, ) WILLIAM E. BENDIX, ) LAWRENCE G. WOLSKI, ) JAMES M. REED, ) LAWRENCE A. REED, ) JOHN H. DEININGER and ) RICHARD C. OSBORNE, ) ) Defendants. ) COMPLAINT --------- Plaintiffs Danaher Corporation ("Danaher") and TK Acquisition Corporation ("Purchaser"), by their attorneys, as and for their Complaint, allege as follows: Nature of the Action -------------------- 1. On July 24, 1995, plaintiffs announced their intention to commence a non-coercive, fully-financed, all-cash tender offer for all outstanding shares of common stock of Joslyn Corporation ("Joslyn") at a price of $32 per share (the "Offer"). Danaher intends, as soon as practicable following consummation of the Offer, to cause Joslyn to merge with Purchaser or another Danaher subsidiary (the "Proposed Merger") at the same price per share. 2. Two weeks earlier, on July 10, 1995, Danaher announced its interest in negotiating the acquisition of Joslyn by Danaher for a price of $32 per share (the "Proposal"). The Proposal and the Offer represent a premium of approximately 30 percent over the $24.75 closing market price on the last trading day before Danaher's public announcement on July 10, 1995 of its interest in acquiring Joslyn. Despite this generous premium, Joslyn and its Board of Directors rejected Danaher's Proposal, refused to enter into negotiations with Danaher, and have indicated their intention to invoke a number of anti-takeover measures to prevent Joslyn's shareholders from reaping the benefits of the Proposal. Accordingly, and as part of their efforts to acquire Joslyn, plaintiffs intend to solicit authorization from other shareholders of Joslyn for the calling of a special meeting of the shareholders of Joslyn. If such a special meeting is called, plaintiffs would solicit proxies to replace Joslyn's current Board of Directors with other nominees and to take certain other actions to facilitate consummation of the Offer and the Proposed Merger (the "Proxy Solicitation"). The purpose of such a Proxy Solicitation would be to permit the shareholder-owners of Joslyn to decide for themselves whether they wish the Proposed Merger to proceed. 3. Two of the anti-takeover measures available to Joslyn (hereinafter, the "Ultra Vires Acts") are unauthorized under and directly contrary to Illinois law: (a) a unique "continuing directors" provision in Joslyn's "poison pill" that, unlike any anti- 2 takeover device ever upheld by a court, purports to prohibit any new directors whom Joslyn's shareholders may elect from exercising their fiduciary duties in determining whether to redeem or otherwise eliminate Joslyn's poison pill (the "Continuing Directors Provision"); and (b) a possible determination by the Joslyn Board that the restrictions of Section 7.85 of the Illinois Business Corporation Act, 805 ILCS 5/7.85(C)(11) -- which permanently prohibit a business combination with an "Interested Shareholder" except in limited circumstances -- are applicable to plaintiffs by virtue of the tender of shares to plaintiffs prior to acceptance, plaintiffs' receipt of authorizations for calling a special meeting, or plaintiffs' receipt of revocable proxies. Unless the Ultra Vires Acts are preliminarily and permanently enjoined, they will make it impossible for plaintiffs to proceed with their Offer, the Proposed Merger and the Proxy Solicitation. 4. In addition to the Ultra Vires Acts, defendants have taken and may take certain defensive measures that, given the all-cash, non-coercive, and highly valuable nature of this Offer, constitute an unreasonable response to the Offer, the Proposed Merger and the Proxy Solicitation, in violation of the fiduciary duties that Joslyn's directors owe to Joslyn's share holders. These include, but are not limited to, use of the following to defeat or impede the Offer, the Proposed Merger and the Proxy Solicitation: (a) a poison pill enacted in 1988 and amended in September 1994 in specific response to Danaher's acquisition of an interest in Joslyn (the "Poison Pill"); (b) the restrictions set forth in Section 7.85 of the Illinois Business Corporation Act, 805 ILCS 5/7.85 ("Section 7.85"); and (c) the restrictions in Section 11.75 of the Illinois Business Corporation Act, 3 805 ILCS 5/11.75 ("Section 11.75"). Plaintiffs and Joslyn's shareholders will suffer irreparable injury if defendants are not enjoined from utilizing the aforementioned defenses, in breach of their fiduciary duties, to interfere with or impede the Offer, the Proposed Merger and the Proxy Solicitation. 5. Plaintiffs bring this action to obtain the judicial relief necessary to allow the shareholders of Joslyn to decide for themselves whether to accept plaintiffs' Offer. Given the all-cash, all-shares nature of the Offer and its substantial value to Joslyn's stockholders, Joslyn's Board of Directors should not be allowed to deprive the stockholders of the opportunity to decide for themselves on the merits of the Offer. Unless enjoined, the Ultra Vires Acts make it impossible for plaintiffs to proceed with this Offer, the Proposed Merger and the Proxy Solicitation. Therefore, plaintiffs, through their contemporaneous motion for a preliminary injunction, seek the following immediate relief against the Ultra Vires Acts: (i) an immediate injunction preliminarily and permanently prohibiting application of the Continuing Directors Provision of Joslyn's Poison Pill, which disenfranchises stockholders by making it impossible for them to elect directors to redeem the Poison Pill or to approve the Offer; and (ii) an immediate injunction preliminarily and permanently preventing Joslyn's Board of Directors from treating (a) the tender of shares to plaintiffs, prior to plaintiffs' acceptance of such shares for purchase, (b) plaintiffs' obtaining of authorization for the calling of a special meeting of Joslyn's shareholders, or (c) the 4 giving of revocable proxies or consents to vote shares, as vesting beneficial ownership of such shares in plaintiffs, thus making plaintiffs "Interested Shareholders" for purposes of Section 7.85. 6. In addition, although not part of the contemporaneous motion for a preliminary injunction, plaintiffs seek the following relief: (i) a preliminary and permanent injunction preventing the application of Joslyn's Poison Pill to plaintiffs' Offer and ordering Joslyn's Board of Directors, consistent with their fiduciary duties, to redeem the Poison Pill or amend it to make it inapplicable to plaintiffs' Offer; (ii) a preliminary and permanent injunction preventing Joslyn's Board of Directors from using Section 7.85 or Section 11.75 to interfere with or prevent plaintiffs' Offer and the Proposed Merger, and ordering Joslyn's Board of Directors, consistent with their fiduciary duties, to approve the Proposed Merger pursuant to such statutes to allow Joslyn's shareholders to accept the Offer; (iii) a declaration that any state's laws other than Illinois' that purport to regulate business combinations of Joslyn are inapplicable to plaintiffs' Offer, the Proposed Merger and the Proxy Solicitation; (iv) a preliminary and permanent injunction preventing defendants from insti tuting proceedings in any other court or forum concerning or related to plaintiffs' Offer, the Proposed Merger and the Proxy Solicitation; and 5 (v) a preliminary and permanent injunction preventing defendants from otherwise impeding plaintiffs' Offer, the Proposed Merger and the Proxy Solicitation. Jurisdiction and Venue ---------------------- 7. The Court has original jurisdiction of the subject matter of this action pursuant to 28 U.S.C. (S)(S) 1331, 1332(a), 1337, 1343(a) and 2201 and 15 U.S.C. (S) 78aa, and supplemental jurisdiction pursuant to 28 U.S.C. (S) 1367(a). On information and belief, the plaintiffs and defendants are citizens of different states. The matter in controversy exceeds the sum of $50,000, exclusive of interest and costs. 8. Venue is proper in this district pursuant to 28 U.S.C. (S) 1391(b) and (c) and 15 U.S.C. (S) 78aa. The Parties ----------- 9. Plaintiff Danaher is a Delaware corporation with its principal place of business in Washington, D.C. Danaher's principal businesses include manufacture and sale of general purpose mechanics' hand tools and automotive specialty tools (including the Craftsman and NAPA lines), process and environmental controls, and automotive and transportation products (including products sold under such brand names as Coats, Ammco and "Jake Brake"). Danaher has grown, through a series of strategic acquisitions 6 as well as internal growth, to have total revenues of approximately $1.3 billion in 1994. Danaher owns approximately 8.6 percent of Joslyn's common stock. 10. Plaintiff Purchaser is a newly-incorporated Delaware corporation with its principal place of business in Washington, D.C. It is a wholly-owned indirect subsidiary of Danaher and was incorporated for the purpose of making the Offer and acquiring all the stock of Joslyn. 11. On information and belief, defendant Joslyn is an Illinois corporation with its principal place of business in Illinois. Joslyn has described itself in its 1994 Form 10-K (a copy of which is attached as an exhibit to the separately-filed Motion for Preliminary Injunction ("Preliminary Injunction Motion")) as a holding company for a number of subsidiaries that are engaged primarily in the manufacturing and supplying of electrical hardware, apparatus, protective equipment, air pressurization and dehydration products, and services used in the construction and maintenance of transmission and distribution facilities to electric power and telephone companies. Joslyn's subsidiaries also manufacture and supply vacuum switchgear and electrical controls to commercial and industrial markets as well as protective equipment, connector backshells, and air and gas dehydration systems to aerospace and defense companies. These businesses complement Danaher's businesses. Joslyn's stock is listed and actively traded on the NASDAQ National Market System. For the fiscal year 1994, Joslyn had sales of approximately $216 million and a net loss of approximately $11 million. Including outstanding shares, shares issuable under outstanding options, and shares available for grant under Joslyn's 7 Employee Stock Benefit Plan, there are approximately 7.5 million shares of Joslyn's common stock outstanding on a fully-diluted basis. 12. On information and belief, defendant Bendix, a resident of Illinois, is Chairman of the Board of Joslyn. He owns approximately 2,000 shares of Joslyn's common stock. 13. On information and belief, defendant Wolski, a resident of Illinois, is Acting Chief Executive Officer and a Director of Joslyn. He owns approximately 42,717 shares of Joslyn's common stock, and has voting power as to an additional approximately 1,555 shares through Joslyn's Profit Sharing Plan. 14. On information and belief, the remaining members of Joslyn's Board of Directors (the "Board") are defendant James Reed, a resident of New Jersey, defendant Lawrence Reed, a resident of Michigan, defendant Deininger, a resident of Indiana, and defendant Osborne, a resident of Illinois (together with defendants Bendix and Wolski, the "Director Defendants"). The Offer, The Proposed Merger and The Proxy Solicitation --------------------------------------------------------- 15. Beginning on May 29, 1994, Danaher began to purchase stock of Joslyn in the marketplace. By August 5, 1994, Danaher had purchased approximately 543,550 shares, equal to approximately 7.6 percent of Joslyn's common stock. On August 12, 1994, Danaher filed a Schedule 13D with the Securities and Exchange Commission disclosing its purchases. Danaher also filed a notification pursuant to the Hart-Scott- 8 Rodino Antitrust Improvements Act of 1976 (the "HSR Act") with the Federal Trade Commission seeking approval to acquire more than $15 million of Joslyn's stock. 16. In immediate response to Danaher's August 1994 purchases, Joslyn amended the Poison Pill on September 2, 1994 to make it more stringent and to eliminate the exception in the Continuing Directors Provision for all-cash-for- all-shares tender offers. A copy of Joslyn's Poison Pill, adopted on February 10, 1988, and the September 2, 1994 amendment, are attached as exhibits to Preliminary Injunction Motion and are incorporated herein by reference. 17. On October 6, 1994, Danaher purchased an additional 70,000 shares, bringing the total number of Joslyn shares it owns to approximately 613,550, representing about 8.6 percent of Joslyn's common stock. 18. On June 30, 1995, a representative of Danaher called defendant Bendix to inquire whether Joslyn might be receptive to an expression of interest by Danaher in a business transaction between Danaher and Joslyn. Following several additional telephone conversations, Danaher informed Joslyn on Friday, July 7, 1995 of its interest in negotiating the acquisition of Joslyn by Danaher for a price of $32 per share. 19. This Proposal was publicly announced before the opening of market trading on Monday, July 10, 1995, at which time Joslyn informed Danaher, and publicly announced, that the Board would consider the proposal at its regularly scheduled meeting on July 19, 1995. Despite the substantial 30 percent premium that the $32 price represented over the prior market price of Joslyn's stock and Danaher's expressed 9 willingness to consider a higher price, Joslyn's Board on July 19, 1995 rejected the proposal and refused to enter into merger discussions with Danaher on the ground that it was "not in the best interests of Joslyn's shareholders." 20. On July 24, 1995, plaintiffs announced their intention to commence a tender offer for all outstanding shares of Joslyn common stock (together with the associated common stock purchase rights issued in connection with Joslyn's Poison Pill) at the price of $32 per share (and associated right). Plaintiffs also announced their intention, as soon as practicable following consummation of the Offer, to propose and seek to consummate a merger or similar business combination of Joslyn with Purchaser or another direct or indirect wholly-owned subsidiary of Danaher. The purpose of the Proposed Merger is to acquire all shares not tendered and purchased pursuant to the Offer or otherwise. Pursuant to the Proposed Merger, each such share (other than those held by stockholders who perfect appraisal rights) would be converted into the right to receive the same $32 per share in cash paid pursuant to the Offer. A copy of plaintiffs' Offer to Purchase is attached as an exhibit to the Preliminary Injunction Motion. 21. The Offer is conditioned upon, among other events: (i) the valid tender of at least two-thirds of the outstanding shares of Joslyn's common stock on a fully-diluted basis; and (ii) redemption, invalidation or inapplicability of the share purchase rights issued in connection with the Poison Pill. 10 The Offer is not subject to any condition relating to plaintiffs' ability to finance the Offer or the Proposed Merger. 22. The Offer and the Proposed Merger present Joslyn's shareholders with an out standing opportunity to maximize the value of their Joslyn shares. The price of Joslyn's common stock, which closed at $24.75 on the last trading day before Danaher's public announcement of its interest in acquiring Joslyn, has languished for a number of years despite a bull market. The low bid and high ask prices listed in Joslyn's 1994 10-K were $22.50 and $28 in 1993, and $22.75 and $31 in 1994. (The $31 high ask in the third quarter of 1994 undoubtedly reflected market speculation about a possible acquisition of Joslyn in light of Danaher's public announcement in August 1994 that it had acquired more than 5 percent of Joslyn's common stock.) Similarly, for the first half of 1995, the low bid was $24.50 and the high ask was $27.75. 23. Plaintiffs' Offer is in the best interests of Joslyn's stockholders. It is a fully-financed, all cash-offer, available to all Joslyn stockholders, for all outstanding shares. It is not "front-end loaded" -- that is, the consideration that it offers is not part cash and part stock and it does not offer a higher price than non-tendering shareholders would receive in the Proposed Merger. Nor is it coercive in nature, as it offers all cash consideration for all shares and treats all Joslyn shareholders equally. It provides Joslyn's stockholders with the opportunity to realize a substantial premium of $7.25 per share (or 30 percent) over the market price of the shares immediately prior to the announcement of Danaher's interest in acquiring Joslyn. 11 24. The Offer, the Proposed Merger and the Proxy Solicitation do not pose any threat to the interests of Joslyn's stockholders or to Joslyn's corporate policy and effectiveness. Danaher has grown to its present size through a strategy of acquiring companies and managing them successfully. 25. The Offer, the Proposed Merger and the Proxy Solicitation comply or will comply with all applicable laws, obligations and agreements, including, without limitation, the securities laws, the antitrust laws, and all other legal obligations to which plaintiffs are subject, including any contractual and common law obligations that may be owed by plaintiffs to Joslyn. The offering documents are being filed with the SEC and NASD and delivered to Joslyn upon commencement of the Offer. The offering documents fairly disclose all information material to the decision of Joslyn's stockholders on whether to accept or reject the Offer in compliance with plaintiffs' obligations under the securities laws. Plaintiffs will also make the filings required by the HSR Act. The Offer, the Proposed Merger and the Proxy Solicitation are lawful under the antitrust laws. 26. As set forth in paragraphs 27 to 36 below, Joslyn's Board has no lawful authority to use the Continuing Directors Provision or its power to determine whether a person is an "Interested Shareholder" under Section 7.85(C)(11) of the Illinois Business Corporation Act (the "Determination Authority") to interfere with the Offer, the Proposed Merger or the Proxy Solicitation. Use of the Continuing Directors Provision or the Determination Authority to interfere with this Offer, the Proposed Merger or the Proxy 12 Solicitation would violate Illinois law, breach the Directors Defendants' fiduciary duties and cause irreparable injury to plaintiffs and Joslyn's shareholders. The Ultra Vires Acts -------------------- The "Continuing Directors" Provision - ------------------------------------ 27. Joslyn's Continuing Directors Provision, unlike any anti-takeover device upheld by a court, precludes a bidder from taking its case directly to the shareholders -- who own Joslyn -- by preventing Joslyn's shareholders from electing directors who have authority to redeem the Poison Pill (or otherwise make it inapplicable to the Offer). 28. To implement Joslyn's Poison Pill, the Board in early 1988 declared a dividend of one common stock share purchase right (a "Right") per share of common stock, pay able to each of Joslyn's stockholders of record as of March 4, 1988. Each Right ostensibly entitles the holder to purchase a share of Joslyn's common stock at a price of $60 per share. Given that, before the public announcement of the Proposal, Joslyn's stock never has traded above $31 per share, the prohibitive $60 per share exercise price makes it clear that the Rights never were intended to provide the holders thereof with a meaningful opportunity to purchase the common stock authorized under the Poison Pill. Instead, Joslyn's Board instituted the Poison Pill solely so that its "flip-in" and "flip-over" provisions (as described below) could be deployed when necessary to make any offer not approved by the continuing directors prohibitively expensive by drastically 13 diluting Joslyn's outstanding shares or ravaging the capital structure of the potential acquirer. 29. The "flip-in" rights are triggered when a person or entity becomes the beneficial owner of 15 percent or more of Joslyn's outstanding shares. Once the Rights flip in, all Rights holders, except the potential acquirer, may exercise each Right to receive one share of Joslyn common stock at an immense discount -- namely for 20 percent of the then-market price of the stock. Any Rights held by the potential acquirer, however, become void. Thus, all Rights holders other than the acquirer would be entitled to purchase Joslyn's common stock for one-fifth of its then-market price. In this way, the "flip-in" feature flagrantly discriminates against an acquirer by diluting its stock holdings and increasing exponentially the number of shares the acquirer would have to purchase in order to consummate a merger. 30. The "flip-over" rights are triggered if: (i) Joslyn engages in a merger or other business combination in which it is not the surviving corporation; (ii) Joslyn engages in a merger or other business combination in which it is the surviving corporation, but in which its common stock is changed or exchanged; or (iii) more than 50 percent of Joslyn's assets or earning power is sold or transferred. 14 31. Upon the occurrence of any of these "flip-over" events, all Rights holders, except the acquirer, may exercise each Right to purchase shares of common stock of the acquiring company at 50% of its value. In this way, the "flip-over" feature subjects the acquiring company to a massive half-price sale of its own stock, drastically impairing its capital structure. The obvious purpose of the Poison Pill is to render an attempted acquisition of Joslyn financially impossible without the blessing of the incumbent directors. 32. Under the Continuing Directors Provision, there are two crucial circumstances, both presented here, when the Rights may be redeemed (or the Poison Pill amended in certain ways) only by a majority of Joslyn's "Continuing Directors." The Continuing Directors consist of members of the Board at the time the Poison Pill was adopted (in 1988) and directors elected since then whose election was recommended or approved by a majority of the Continuing Directors (but in all circumstances excluding the potential acquirer and its affiliates, associates and representatives). The "Continuing Directors" limitation applies whenever: (1) someone has become the beneficial owner of 15 percent or more of Joslyn's stock (an "Acquiring Person"), or (2) even if there is no Acquiring Person, if a majority of the directors change as the result of a proxy or consent solicitation by anyone who has stated that he (or who the Board decides) intends to take, or even "may consider taking," any action which would result in his becoming an Acquiring Person. 15 33. When the Poison Pill first was adopted in 1988, it provided that this Continuing Directors Provision would not apply in the second of the two circumstances described in the preceding paragraph if the proxy or consent solicitation were concurrent with a cash tender offer for all outstanding shares of Joslyn's common stock. Moreover, in a letter to shareholders at the time Joslyn adopted the Poison Pill, Joslyn expressly stated that the Pill "is not intended to prevent a takeover of the Corporation." Instead, Joslyn characterized the Pill as being intended only to protect against "coercive or unfair takeover tactics" such as a "two-tiered tender offer that does not treat all shareholders equally," which could "pressure shareholders, forcing them out of their investment without giving them any real choice." 34. Despite Joslyn's professed initial intention to preclude only coercive offers, Joslyn amended its Poison Pill on September 2, 1994 to make the Continuing Directors Provisions applicable even to fully-financed, all-cash-for- all-shares offers. The amendment, adopted in immediate response to Danaher's purchase of 7.6 percent of Joslyn's stock, deleted the exception to the Continuing Directors Provision described in the preceding paragraph, leaving no way to eliminate the Poison Pill absent approval by Continuing Directors, even in the event of an all-cash offer for all shares like Danaher's. (The Board in 1994 also lowered the threshold for becoming an Acquiring Person from 20 to 15 percent and made certain other changes to the Poison Pill.) 35. Thus, as amended, this Continuing Directors Provision would prevent Joslyn's shareholders from exercising their control over the management of the 16 corporation by electing a Board comprised of new members with authority to redeem the Rights. Only if at least two Continuing Directors remained on the Board, and only if a majority of those Continuing Directors approved, could a new Board eliminate the Poison Pill as a barrier to the Offer and the Proposed Merger. This draconian, disenfranchising self-entrenchment device, adopted without any shareholder vote or amendment of Joslyn's Articles of Incorporation (a copy of which is attached as an exhibit to the Preliminary Injunction Motion), strips shareholders of their fundamental ability to elect directors to manage the company, and violates three separate provisions of the Illinois Business Corporation Act: (i) Section 8.05, 805 ILCS 5/8.05, which provides that the business and affairs of the corporation shall be managed by or under the direction of its board of directors; (ii) Section 6.05, 805 ILCS 5/6.05, which requires that all directors act as fiduciaries in connection with poison pills; and (iii) Section 7.40, 805 ILCS 5/7.40, which gives the shareholders the right to elect directors, except as provided in the Articles of Incorporation. 36. The September 1994 Amendment to the Continuing Directors Provision, making it applicable to all-cash tender offers, was, as a matter of law, an unreasonable response to Danaher's August 1994 acquisition of shares and filing of its Schedule 13D, and constituted a breach of fiduciary duties to the shareholders of Joslyn. Any further reliance upon the Continuing Directors Provision is an unreasonable response to this 17 Offer and the Proxy Solicitation and constitutes a breach of the Director Defendants' fiduciary duties to the shareholders of Joslyn. Section 7.85(C)(11) -- Determination Authority - ---------------------------------------------- 37. Section 7.85 of the Business Corporation Act, 805 ILCS 5/7.85, which was adopted in 1985 and is entitled "Vote Required for Certain Business Combinations," was designed to impede coercive tender offers -- particularly so- called "two-tier front-end loaded" offers in which an acquirer seeks to obtain a controlling interest at a higher price, merger or other transaction. Section 7.85 provides that, if a person beneficially owns 10 percent or more of a corporation's voting stock (thereby becoming an "Interested Shareholder"), such Interested Shareholder may NEVER engage in a "business combination" with the corporation (broadly defined to include a merger or consolidation, and also virtually any disposition of 10 percent or more of the corporation's assets) unless: (i) two-thirds of the "Disinterested Directors" (directors not affiliated with or nominated for election by the Interested Shareholder) approve the combination; (ii) the combination is approved by the holders of at least 80 percent of the voting stock and a majority of the stock not owned by the Interested Shareholder; or 18 (iii) the combination meets certain so-called "fair price" and "fair process" requirements. 38. Section 7.85 states that a person shall be considered the "beneficial owner" of shares that, inter alia, "such person or any of its Affiliates or Associates has (1) the right to acquire . . . pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (2) the right to vote or direct the vote pursuant to any agreement, arrangement or understanding." 805 ILCS 5/7.85(C)(3)(b). Section 7.85(C)(11) provides that a "majority of the Disinterested Directors shall have the power to determine, for the purposes of this Section 7.85, (a) whether a person is an Interested Shareholder, [and] (b) the number of Voting Shares beneficially owned by any person" (the "Determination Authority"). 39. Section 7.85 contemplates that, as expressly provided in Section 11.75 (see paragraph 49 below), beneficial ownership cannot arise from the mere unaccepted tender of shares or giving of revocable proxies. The Disinterested Directors do not possess statutory authority pursuant to the Determination Authority to declare that shares are beneficially owned by a potential acquirer merely because of an unaccepted tender of shares, the grant of a revocable proxy, or the receipt of authorizations for the calling of a special meeting. Were the statute to grant that Determination Authority to the Disinterested Directors, it would constitute an unlawful and unconstitutional delegation of 19 legislative and judicial authority in violation of Article IV, Section 1 of the Illinois Constitution and the Due Process Clause of the United States Constitution. 40. Any use by the Director Defendants of the Determination Authority pursuant to Section 7.85(C)(11) to interfere with plaintiffs' Offer or the Proxy Solicitation would constitute an unreasonable response to the Offer and the Proxy Solicitation and a breach of the Director Defendants' fiduciary duties to the shareholders. Irreparable Injury From Ultra Vires Acts ---------------------------------------- 41. Only through the exercise of the Court's equitable powers will plaintiffs and Joslyn's other stockholders be protected from immediate and irreparable injury. Unless enjoined, the Ultra Vires Acts purport to give the Board authority to prevent the Offer and the Proxy Solicitation, an authority they do not lawfully possess. The shareholders cannot make an informed response to the Offer and the Proxy Solicitation unless this Court declares immediately that these Ultra Vires Acts are not available to the Joslyn Board. Plaintiffs will be precluded from proceeding with the Offer, the Proposed Merger and the Proxy Solicitation, plaintiffs will lose the unique and irreplacable opportunity to acquire Joslyn, and Joslyn stockholders will be deprived of the opportunity to decide for themselves whether or not to accept the Offer, unless the Court: (i) declares the Continuing Directors Provision null and void and preliminarily and permanently enjoins the operation of the same; and 20 (ii) preliminarily and permanently enjoins the Director Defendants from treating the tender of shares prior to acceptance, receipt of authorizations to call a special meeting, or giving of revocable proxies as vesting beneficial ownership in plaintiffs under Section 7.85. Breaches of Fiduciary Duty -------------------------- 42. In addition to the foregoing Ultra Vires Acts, Joslyn's Board may use certain other anti-takeover measures to defeat the Offer, the Proposed Merger and the Proxy Solicitation in breach of their fiduciary duties. These devices include the Poison Pill, the other provisions of Section 7.85 and the provisions of Section 11.75, the institution of litigation in other forums, and/or invoking state anti-takeover laws other than the laws of Illinois. 43. As set forth in paragraphs 44 to 53 below, given the all-cash, non- coercive nature of the Offer and the favorable opportunity it presents to Joslyn shareholders, any use by Joslyn of its Poison Pill, Section 11.75, the other provisions of Section 7.85, the provisions of any foreign business corporation acts, or litigation in other forums, to interfere with or impede this Offer, the Proposed Merger or the Proxy Solicitation would constitute a breach of the Director Defendants' fiduciary duties and should therefore be enjoined. 21 The Poison Pill As A Breach Of Fiduciary Duties - ----------------------------------------------- 44. Joslyn's Poison Pill gives the Board the effective power unilaterally to block all acquisition offers, even non-coercive, all-cash, all-shares offers that provide substantial benefits to Joslyn's shareholders. The Poison Pill is designed to make any acquisition of Joslyn that is not approved by the Board prohibitively expensive by causing substantial dilution to, and inflicting massive economic penalties on, any person or company that attempts to acquire Joslyn without approval of Joslyn's current directors. 45. Given the prohibitively expensive effect of triggering the Poison Pill, the practical effect of the Poison Pill is to prevent plaintiffs from consummating their Offer to purchase Joslyn's shares at a substantial premium for Joslyn's shareholders. Recognizing the insurmountable barrier posed by the Poison Pill, plaintiffs have made their Offer conditional upon the voluntary or court-ordered redemption, invalidity or removal of the Rights. Thus, unless the Rights are redeemed (or the Poison Pill amended to make it inapplicable to the Offer and the Proposed Merger), Joslyn's shareholders will be deprived of the opportunity to decide whether they want to accept plaintiffs' non-coercive, all- cash, all-shares, equal-treatment tender offer. 46. As set forth above, the ability to remove the draconian effects of the Poison Pill and to provide Joslyn's shareholders with an opportunity to accept plaintiffs' Offer rests solely in the hands of the Director Defendants, who have the authority to 22 redeem the Rights at 3 1/3 cents per Right until fifteen days after the acquisition by any person or entity of at least 15 percent of Joslyn's outstanding shares. Alternatively, the Board can amend the Poison Pill to make the Rights inapplicable to the Offer and the Proposed Merger. Any failure to redeem the Rights or to amend the Poison Pill to make it inapplicable to the Offer and the Proposed Merger constitutes an unreasonable response to this Offer and a breach of the Defendant Directors' fiduciary duties to Joslyn's share holders. Section 11.75 - ------------- 47. Section 11.75 of the Business Corporation Act, 805 ILCS 5/11.75, which was adopted in 1989 and is entitled "Business Combinations with Interested Stockholders," applies to any Illinois corporation that has not opted out of the statute's coverage. Joslyn has not opted out of the statute's coverage. 48. Like Section 7.85, Section 11.75 was designed to impede coercive and inadequate tender offers. It provides that if a person beneficially owns 15 percent or more of a corporation's voting stock (thereby becoming an "Interested Shareholder"), such Interested Shareholder may not engage in a "business combination" with the corporation (broadly defined as in Section 7.85) for three years after the Interested Shareholder became an Interested Shareholder, unless: (i) prior to the 15 percent acquisition, the Board of Directors has approved either the acquisition or the business combination; 23 (ii) the Interested Shareholder acquires at least 85 percent of the corporation's voting stock in the same transaction in which it crosses the 15 percent threshold (excluding certain stock such as that held by officer directors); or (iii) the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders (and not by written consent) by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the Interested Shareholder. 49. Section 11.75 further provides that a person shall not be considered the beneficial owner of shares tendered pursuant to a tender or exchange offer until such tendered shares are accepted for purchase or exchange, nor shall a person be considered the beneficial owner of shares on account of being given the right to vote such shares solely pursuant to a revocable proxy or consent given in response to a proxy solicitation made to ten or more persons. These provisions confirm that the 15 percent trigger is not tripped merely on account of the unaccepted tender of shares pursuant to a tender offer or the obtaining of proxies for a limited purpose in a Proxy Solicitation. 50. Any use by the Joslyn Board of Section 11.75 to obstruct the Offer, which is all-cash and non-coercive, offers Joslyn's stockholders a substantial premium for their shares, and poses no threat to the interests of Joslyn's stockholders or to Joslyn's 24 corporate policy and effectiveness, including any failure to approve the Offer pursuant to Section 11.75, would constitute an unreasonable response to the Offer and a breach of the Director Defendants' fiduciary duties. Section 7.85 -- Breach of Fiduciary Duties - ------------------------------------------ 51. Any use of Section 7.85 by the Joslyn Board to obstruct the Offer, which is all-cash and non-coercive, offers Joslyn's stockholders a substantial premium for their shares, and poses no threat to the interests of Joslyn's stockholders or to Joslyn's corporate policy and effectiveness, including any failure to approve the Offer pursuant to Section 7.85, would constitute an unreasonable response to the Offer and a breach of the Director Defendants' fiduciary duties. Foreign State Business Combination Statutes - ------------------------------------------- 52. A number of foreign states have enacted business combination statutes that purport to regulate the internal affairs of out-of-state corporations (the "Foreign State Business Combination Acts"). Defendants may seek to invoke these other statutes in order to block plaintiffs' Offer, the Proposed Merger and the Proxy Solicitation. Application of any use of these Foreign State Business Combination Acts would violate the Commerce Clause and would conflict with the Williams Act (Pub. L. 90-439, Sections 2, 3, 82 Stat. 454, 455 (July 29, 1968) amending 15 U.S.C. Sections 78l through 78n) in violation of the Supremacy Clause of the United States Constitution. Any action to use these foreign state business combination acts to obstruct the Offer would constitute an 25 unreasonable response to the Offer and a breach of the Director Defendants' fiduciary duties. Foreign Litigation - ------------------ 53. This forum provides defendants with a full opportunity to raise any lawful defenses to the Offer, the Proposed Merger and the Proxy Solicitation. Institution of litigation against plaintiffs in any other forum would constitute an unreasonable response to the Offer and a breach of the Director Defendants' fiduciary duties. Irreparable Injury ------------------ 54. Plaintiffs will be precluded from consummating the Offer (which is conditioned on removal or inapplicability of Joslyn's anti-takeover devices), plaintiffs will lose the unique and irreplaceable opportunity to acquire Joslyn, and Joslyn's shareholders will lose the unique opportunity to sell their shares for a substantial premium, unless the Court: (i) declares the September 1994 amendment to the Poison Pill invalid as a breach of the Director Defendants' fiduciary duties; (ii) enjoins the application of Joslyn's Poison Pill to plaintiffs' Offer and Proposed Merger; (iii) orders the Director Defendants to approve the Offer pursuant to Sections 7.85 and 11.75; (iv) enjoins the defendants from instigating litigation in any other forum; 26 (v) enjoins the application of any foreign state business combination statute; and (vi) otherwise enjoins the application of any anti-takeover devices to plaintiffs' Offer and enjoins Joslyn from impeding the Offer, the Proposed Merger and the Proxy Solicitation by any other measures. 55. Damages for these losses cannot readily be calculated and, in any event, could not compensate for the unique loss that would have been suffered by plaintiffs. Accordingly, plaintiffs have no adequate remedy at law. COUNT ONE --------- (Unlawfulness of Continuing Directors Provision of Poison Pill) 56. Plaintiffs repeat, reallege and incorporate each allegation contained in Paragraphs 1 through 55 of this Complaint as if fully set forth herein. 57. The Continuing Directors Provision denies the shareholders, including plaintiffs, of their statutory right to vote for and elect a Board comprised of directors who can exercise their fiduciary duties to the shareholders. The lawfulness of a poison pill depends, among other things, upon the shareholders retaining the ability to cause the poison pill to be redeemed or otherwise to remove the poison pill as an obstacle to a desirable offer by replacing the incumbent directors. Joslyn's Continuing Directors Provision disenfranchises Joslyn's shareholders and violates Section 7.40 of the Illinois 27 Business Corporation Act, 805 ILCS 5/7.40, which gives the shareholders the right to elect directors, except as the Articles of Incorporation otherwise provide. 58. The Continuing Directors Provision further interferes with the exercise of shareholders' voting rights, in violation of the Illinois Business Corporation Act, by inducing votes for incumbents. Shareholders who favor the Offer will nevertheless be compelled to vote for the Continuing Directors if only the Continuing Directors, and not any other nominees, will have the power (however unlikely they are to use it) to take such basic, and critical steps as redeeming the Rights or amending the Poison Pill. 59. The Continuing Directors Provision selectively and unlawfully denies a future Board powers that the current Board possesses including the powers and authority expressly provided by Section 8.05 of the Illinois Business Corporation Act, 805 ILCS 5/8.05. By exclusively retaining the power to redeem the Rights for itself and its hand-picked successors, and denying that very same power to future boards duly elected by the shareholders, the Board exceeded its statutory power, created an invidious distinction among classes of directors, and deprived future non-Continuing Directors of the authority to carry out their fiduciary duties and manage the corporation. This creation of two classes of directors with different powers, without any amendment to Joslyn's articles of incorporation or express shareholder approval, is beyond the powers of the Board. 60. The Continuing Directors Provision also violates Section 6.05 of the Illinois Business Corporation Act, 805 ILCS 5/6.05. In authorizing poison pills, Section 6.05 requires that the Board of Directors continue to exercise their fiduciary 28 duties in connection with any poison pill. Joslyn's Continuing Directors Provision precludes an independent board of directors from fulfilling its fiduciary duties in connection with poison pills and thereby violates Section 6.05. 61. The September 1994 Amendment to the Poison Pill was taken in specific response to Danaher's August 1994 purchase of shares in Joslyn and filing of a Schedule 13D. The Amendment was not proportionate to any threat posed nor in the range of reasonable responses to Danaher's action, and was a breach of the Director Defendants' fiduciary duties. 62. Plaintiffs seek preliminary and permanent injunctive relief against the application or enforcement of the Continuing Directors Provision, as well as a declaratory judgment that this provision is invalid as contrary to Illinois law. 63. Plaintiffs have no adequate remedy at law. COUNT TWO --------- (Declaratory Judgment Concerning Application of Section 7.85) 64. Plaintiffs repeat, reallege and incorporate each allegation contained in Paragraphs 1 through 63 of this Complaint as if fully set forth herein. 65. Directors must exercise their authority to determine beneficial ownership of shares for purposes of Section 7.85 consistent with the limits of their statutory authority and in conformity with their fiduciary duties and other principles of Illinois corporate 29 law. If plaintiffs are deemed beneficial owners within the meaning of Section 7.85, they will be subject to the permanent merger bar provisions of Section 7.85. 66. The mere tendering of shares, which may be withdrawn pursuant to the terms of the Offer and which will not be accepted and purchased in the event that the Offer's conditions are not satisfied, does not constitute the transfer of any of the incidents of ownership, and thus does not transfer "beneficial ownership" of the shares within the meaning of Section 7.85. Until the shares are accepted for purchase, beneficial ownership remains solely in the tenderer. As a matter of law, therefore, the Director Defendants do not have authority to, and should be enjoined from, attributing beneficial ownership of tendered but unaccepted shares to plaintiffs. 67. Similarly, an entity does not acquire beneficial ownership of shares within the meaning of Section 7.85 merely by reason of obtaining revocable proxies (or authorizations to call a special meeting) with respect to 10 percent or more of Joslyn's outstanding shares. A revocable proxy is not "the right to vote" stock within the meaning of Section 7.85. The holder of a revocable proxy is merely an agent with defeasible power to vote the shares in accordance with the directions of the shareholder granting the proxy; that shareholder continues to possess the exclusive right to vote those shares and may revoke the proxy at any time. A fortiori, obtaining shareholder authorization for calling a special meeting (which must be held if requested by 20 percent or more of the shareholders as required by Section 7.05 of the Illinois Business Corporation Act, 805 ILCS 5/7.05) does not in any way constitute the transfer of any of the incidents of 30 ownership, nor does it even affect how shares will be voted at the meeting. As a matter of law, the Director Defendants do not have authority to, and should be enjoined from, attributing to plaintiffs beneficial ownership of shares based on plaintiffs' obtaining authorization for the calling of a special meeting or revocable proxies with respect to those shares. 68. Section 7.85, like its counterpart provision Section 11.75, does not contemplate that any of the events set forth in paragraphs 66 and 67 can vest beneficial ownership. Any legislative delegation of authority to the Board of Directors to determine that such events vest beneficial ownership would constitute an unconstitutional delegation of legislative and judicial authority to a private party and would deprive plaintiffs of valuable property rights in violation of Article IV, Section 1 of the Illinois Constitution and the Due Process Clause of the United States Constitution. 69. The foregoing uses of the Determination Authority would also constitute an unreasonable response to Danaher's Offer in breach of the Director Defendants' fiduciary duties. 70. Plaintiffs seek preliminary and permanent injunctive relief against any use of the Determination Authority to determine that the tender of shares prior to acceptance, the receipt of authorizations to call a special meeting, or the grant of revocable proxies make plaintiffs an "Interested Shareholder," as well as a declaratory judgment that such a determination would be inconsistent with the Illinois Business Corporation Act, the Director Defendants' fiduciary duties, and the limit of the Director Defendants' authority. 31 71. Plaintiffs have no adequate remedy at law. COUNT THREE ----------- (Breach of Fiduciary Duties) 72. Plaintiffs repeat, reallege and incorporate each allegation contained in Paragraphs 1 through 71 of this Complaint as if fully set forth herein. 73. The Director Defendants, who vested themselves with the preclusive power of the Poison Pill, are bound by their fiduciary obligations to observe the highest and most stringent duties of loyalty, care, candor and good faith in determining how and when that power should be used. Section 6.05 of the Illinois Business Corporation Act, 805 ILCS 5/6.05, which authorizes flip-in poison pill rights plans, provides that nothing therein shall affect the "fiduciary obligations of the board of directors of a corporation . . . in the taking or failing to take any action with respect to such rights." The Director Defendants' obligation to properly exercise their fiduciary duties is particularly important in the context of a proposed change-of-control transaction, which raises the specter that the Director Defendants may be acting primarily in their own interests (to preserve their directorships), rather than in the best interests of the corporation and its shareholders. 74. The Director Defendants are obligated by reason of their fiduciary duties, not to use the Poison Pill to block acquisition proposals unless, after a good faith and reasonable investigation, the Board has reasonable grounds for believing that the proposal poses a real and substantial threat to the corporation and its shareholders. 32 75. Similarly, the Director Defendants are obligated not to use Sections 7.85 and 11.75 of the Illinois Business Corporations Act to rebuff acquisition proposals unless, after a good faith and reasonable investigation, the Board has reasonable grounds for believing that the proposal poses a real and substantial threat to the shareholders. 76. Plaintiffs' Offer is non-coercive and non-discriminatory; it is fair to Joslyn stockholders; and it represents a substantial premium over the market price of Joslyn shares prior to announcement of the Proposal. The Offer, the Proposed Merger and the Proxy Solicitation comply with all applicable laws, obligations and agreements and pose no threat to the interests of Joslyn's stockholders or to Joslyn's corporate policy or effectiveness. 77. Use of Joslyn's anti-takeover devices or any other defensive measures, including the Poison Pill and Sections 7.85 and 11.75, to prevent Joslyn stockholders from deciding for themselves whether or not to accept the Offer is not proportionate to any threat posed, nor within the range of reasonable responses to the Offer, the Proposed Merger or the Proxy Solicitation and would constitute a breach of the Director Defendants' fiduciary duties. 78. Defendants have indicated that they will employ all appropriate measures to rebuff plaintiffs' Offer and thus are likely to refuse to redeem the Rights (or to amend the Poison Pill to make it inapplicable to the Offer and the Proposed Merger) or approve the Offer and the Proposed Merger to satisfy the provisions of Sections 11.75 and 7.85. 33 79. The refusal to redeem the Rights (or to amend the Poison Pill) and the refusal to approve the Offer and the Proposed Merger under these circumstances serves an improper purpose -- entrenchment of the defendants and Joslyn's management -- at the direct expense of Joslyn's shareholders, and constitutes a breach by the Director Defendants of their fiduciary duties. 80. Plaintiffs seek preliminary and permanent injunctive relief against these breaches of fiduciary duties, including but not limited to any breaches caused by the Director Defendants': (i) failure to redeem the Rights; (ii) failure to amend the Poison Pill to make it inapplicable to the Offer and Proposed Merger; (iii) failure to approve the Offer and Proposed Merger; or (iv) adoption of any new defensive measures designed to thwart or block the Offer. 81. Plaintiffs have no adequate remedy at law. COUNT FOUR ---------- (No Commencement of Other Proceedings) 82. Plaintiffs repeat, reallege and incorporate each allegation contained in Paragraphs 1 through 81 of this Complaint as if fully set forth herein. 83. Illinois is both the state of incorporation and the headquarters of Joslyn. This Court is therefore a proper and convenient forum for the litigation of any claims 34 between the parties relating to the Offer, the Proposed Merger or the Proxy Solicitation. To prevent any unnecessary impediment to consummation of the Offer, the Proposed Merger and the Proxy Solicitation, plaintiffs seek declaratory and injunctive relief against Joslyn's commencement of proceedings in any forum other than this Court which would impede the commencement, continuation or consummation of these transactions. 84. Plaintiffs have no adequate remedy at law. COUNT FIVE ---------- (Inapplicability of Foreign State Anti-Takeover Statutes) 85. Plaintiffs repeat, reallege and incorporate each allegation contained in Paragraphs 1 through 84 of this Complaint as if fully set forth herein. 86. Subject to the constitutional constraints set forth below, Illinois is the only state possessing authority to regulate Joslyn's internal corporate affairs. Nevertheless, a number of states have adopted anti-takeover legislation purporting to control the internal affairs of out-of-state companies such as Joslyn by, among other things, purporting to control the ability of a tender offeror to make a tender offer, the ability of such a tender offeror to vote shares sold to it during a tender offer, and the ability of such a tender offeror to merge or otherwise combine with the corporation after a tender offer. Defendants may seek to invoke these other statutes in order to block plaintiffs' Offer, the Proposed Merger and the Proxy Solicitation. 87. Because Joslyn is an Illinois corporation, any attempt by defendants to invoke a Foreign State Business Combination Act in connection with the Offer or the 35 Proposed Merger would create an unconstitutional burden on interstate commerce. If applied to the Offer, the Proposed Merger or the Proxy Solicitation, Foreign State Business Combination Acts would impose substantial and adverse burdens upon interstate commerce, including, but not limited to, the following: (i) inhibiting plaintiffs from making a nationwide tender offer, as well as from engaging in the Proposed Merger with Joslyn; (ii) depriving Joslyn's stockholders throughout the United States of the opportunity to sell their shares at a premium above the unaffected market price in a transaction wholly in compliance with United States law; and (iii) creating unnecessary, burdensome, and wasteful expenses for companies engaged in interstate commerce and for persons wishing to use interstate or national facilities as instrumentalities for the purchase and sale of securities. 88. The rights of Joslyn's stockholders (including plaintiffs) are created and guaranteed by Illinois law. Application of Foreign State Business Combination Acts to the Offer, the Proposed Merger or the Proxy Solicitation would alter those rights or restrict them in ways that Illinois law does not and, as such, fail to give full faith and credit to Illinois law. 89. The threat of inconsistent regulation created by Foreign State Business Combination Acts and the burden of complying with those inconsistent regulations will impermissibly impede the Offer in a manner inconsistent with the Williams Act (Pub. L. 90-439, Sections 2, 3, 82 Stat. 454, 455 (July 29, 1968), amending 15 U.S.C. Sections 78l through 36 78n). As a result, any attempt to apply any Foreign State Business Combination Act to the Offer, the Proposed Merger or the Proxy Solicitation would conflict with the Williams Act and would thus violate the Supremacy Clause of the United States Constitution. 90. In order to avoid the unconstitutional application of inconsistent statutes to the Offer and to eliminate the uncertainty concerning the laws with which plaintiffs must comply to complete the Offer, the Proposed Merger and the Proxy Solicitation, plaintiffs seek a judgment: (i) declaring that any purported application of any Foreign State Business Combination Act to the Offer violates the United States Constitution and the Williams Act; and (ii) preliminarily and permanently enjoining defendants from commencing any action, claim or proceeding in any forum in order to invoke any Foreign State Business Combination Act with respect to the Offer. 91. Plaintiffs have no adequate remedy at law. PRAYER FOR RELIEF ----------------- WHEREFORE, plaintiffs respectfully request that this Court enter an order: (i) declaring and adjudging that the Continuing Directors provision is invalid, null and void and preliminarily and permanently enjoining the operation thereof; 37 (ii) declaring that the Director Defendants have no authority under Section 7.85 to determine that the tender of shares to plaintiffs prior to the actual acceptance of such shares for purchase, the receipt of authorizations to call a special meeting or the grant of revocable proxies pursuant to the Proxy Solicitation vest beneficial ownership of the underlying stock in plaintiffs or render them "Interested Shareholders" for purposes of that provision, and preliminarily and permanently enjoining the Director Defendants from making that purported determination; (iii) preliminarily and permanently enjoining defendants, their officers, successors, agents, servants, subsidiaries, employees and attorneys, and all persons acting in concert or participating with them or any of them, from taking any steps to impede or frustrate the ability of Joslyn's stockholders to consider and make their own determination as to whether to accept the terms of the Offer or give or withhold consent to the terms of the Proxy Solicitation, or taking any other action to thwart or interfere with the Offer, the Proposed Merger or the Proxy Solicitation; (iv) compelling the Director Defendants to redeem the Rights associated with the Poison Pill or to amend the Poison Pill so as to make the Rights inapplicable to the Offer and the Proposed Merger, and preliminarily and permanently enjoining defendants, their officers, successors, agents, servants, subsidiaries, employees and attorneys, and all persons acting in concert or participation with them or any of them, from taking any action to implement, distribute or recognize any rights or powers with respect to said Rights (other than to 38 redeem the Rights or amend the Poison Pill to make it inapplicable), and from taking any actions pursuant to the Poison Pill that would dilute or interfere with plaintiffs' voting rights or in any other way discriminate against plaintiffs in the exercise of their rights with respect to their Joslyn stock; (v) compelling the Director Defendants to approve the Offer and the Proposed Merger for the purposes of Sections 7.85 and 11.75, and preliminarily and permanently enjoining defendants, their officers, successors, agents, servants, subsidiaries, employees and attorneys, and all persons acting in concert or participation with them or any of them, from taking any actions to enforce or apply Sections 7.85 or 11.75 that would interfere with the commencement, continuation or consummation of plaintiffs' Offer; (vi) declaring and adjudging that the Offer, the Proposed Merger and the Proxy Solicitation comply with all applicable laws, obligations and agreements, including, without limitation, the securities laws, the antitrust laws, and all other legal obligations to which plaintiffs are subject, including any contractual and common law obligations that may be owed by plaintiffs to Joslyn; (vii) declaring and adjudging that Joslyn, its directors, officers, successors, agents, servants, subsidiaries, employees and attorneys, and all persons acting in concert or participation with them, may not commence, and preliminarily and permanently enjoining them from commencing, in any forum other than this Court, any judicial proceedings that would require litigation, by way of claim, defense or 39 counterclaim, or any of the claims, defenses or counterclaims which may be asserted in this lawsuit and that would delay or impede commencement, continuation or consummation of the Offer, the Proposed Merger or the Proxy Solicitation, including, without limitation, any proceedings challenging the Offer, the Proposed Merger or the Proxy Solicitation or seeking to enforce or apply any of Joslyn's anti-takeover devices; (viii) declaring and adjudging that the application of any Foreign State Business Combination Act to the Offer, Proposed Merger or Proxy Solicitation is unconstitutional, and preliminarily and permanently enjoining defendants, their officers, successors, agents, servants, subsidiaries, employees and attorneys, and all persons acting in concert or participation with them or any of them, from taking any actions to make, apply or enforce the provisions of any such Foreign State Business Combination Act; (ix) awarding plaintiffs their costs and disbursements in this action, including reasonable attorneys' fees; and 40 (x) granting such other and further relief as to the Court seems just and proper. Dated: Chicago, Illinois July 24, 1995 DANAHER CORPORATION and TK ACQUISITION CORPORATION By:_______________________________________ One of Their Attorneys Theodore R. Tetzlaff (02812177) Rodney D. Joslin (01370502) David J. Bradford (00272094) Norman M. Hirsch (06184003) JENNER & BLOCK One IBM Plaza Chicago, IL 60611 (312) 222-9350 Of Counsel: John H. Hall Gary W. Kubek David H. Bernstein Angela O. Burton DEBEVOISE & PLIMPTON 875 Third Avenue New York, NY 10022 (212) 909-6000 41 -----END PRIVACY-ENHANCED MESSAGE-----