- Amended tender offer statement by Third Party (SC TO-T/A)
November 23 2010 - 5:17PM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 3)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934
Hawk Corporation
(Name of Subject Company)
HC Corporation
(Offeror)
a wholly owned subsidiary of
Carlisle Companies Incorporated
(Parent of Offeror)
CLASS A COMMON STOCK, $0.01 PAR VALUE PER
SHARE
(Title of Class of Securities)
(including the associated preferred share
purchase rights)
420089104
(CUSIP Number of Class of Securities)
Steven J. Ford
Vice President, Chief Financial Officer, and General Counsel
Carlisle Companies Incorporated
13925 Ballantyne Corporate Place
Charlotte, North Carolina 28277
(704) 501-1100
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications
on Behalf of Filing Persons)
Copy to:
Robert A. Rosenbaum
Dorsey & Whitney LLP
50 South Sixth Street,
Suite 1500
Minneapolis, Minnesota 55402
(612) 340-2600
o
Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check
the appropriate boxes below to designate any transactions to which the
statement relates:
x
third-party tender offer subject to
Rule 14d-1.
o
issuer tender offer subject to Rule 13e-4.
o
going-private transaction subject to Rule 13e-3.
o
amendment to Schedule 13D under Rule 13d-2.
Check
the following box if the filing is a final amendment reporting the results of
the tender offer.
o
This
Amendment No. 3 (
Amendment No. 3
) amends and
supplements the Tender Offer Statement on Schedule TO originally filed
with the Securities and Exchange Commission on November 1, 2010 (the
Schedule TO
), by (i) HC
Corporation, a Delaware corporation (the
Purchaser
),
and a wholly owned subsidiary of Carlisle Companies Incorporated, a Delaware
corporation (
Parent
), and (ii) Parent.
The Schedule TO relates to the offer by the Purchaser to purchase all of
the outstanding shares of Class A common stock, par value $0.01 per share
(together with the associated preferred share purchase rights, the
Shares
), of Hawk Corporation, a Delaware corporation (
Hawk
), at a purchase price of $50.00 per Share, net to the
seller in cash, without interest, less any applicable withholding taxes, upon
the terms and subject to the conditions set forth in the Offer to Purchase,
dated November 1, 2010 (which, together with any amendments and
supplements thereto, collectively constitute the
Offer to
Purchase
), and in the related letter of transmittal (as it may be
amended or supplemented, the
Letter of Transmittal,
which,
together with the Offer to Purchase, constitute the
Offer
).
All
capitalized terms used in this Amendment No. 3 without definition have the
meanings ascribed to them in the Schedule TO.
All information in the
Schedule TO is incorporated into this Amendment No. 3 by reference, except
that such information is hereby amended to the extent specifically provided
herein. This Amendment No. 3 is
being filed to reflect certain updates as reflected below, including the
termination of the applicable HSR waiting period (see below Item 11. Additional
Information
Antitrust Compliance
) and the
entry into a settlement agreement relating to the stockholder lawsuit (see
below Item 11. Additional Information
Stockholder Litigation
).
The
items of the Schedule TO set forth below, to the extent such items
incorporate by reference the information contained in the Offer to Purchase,
are hereby amended and supplemented as described below. All page references in this Amendment No. 3
refer to the Offer to Purchase.
Items 4, 5 and 11.
Section 8 of the
Offer to Purchase is hereby amended and supplemented by inserting the following
at the end of such section:
Reconciliation of Projected Non-GAAP Financial Information
(dollar amounts are in millions; all amounts are approximate)
The Projections include projections of Hawks EBITDA
and Adjusted EBITDA which are non-GAAP financial measures under the rules and
regulations of the SEC. Hawk defines
EBITDA as income from operations before depreciation and amortization. Hawk defines Adjusted EBITDA as income from
operations before depreciation, amortization and certain non-recurring expenses
as described below (collectively, the
EBITDA Addbacks
). EBITDA and Adjusted EBITDA are not financial
measures prepared in accordance with GAAP.
Hawk provided this projected non-GAAP financial information to certain
parties as described in the first paragraph of this section.
Neither EBITDA nor Adjusted EBITDA should be
considered a substitute for income from operations or any performance measures
derived in accordance with GAAP. Because
EBITDA and Adjusted EBITDA exclude some, but not all, items that affect income
from operations and may vary between companies, EBITDA and Adjusted EBITDA
presented by Hawk may not be comparable to similarly titled measures of other
companies. A reconciliation of the
differences between EBITDA and Adjusted EBITDA and income from operations, a
financial measurement prepared in accordance with GAAP, as prepared by Hawk, is
set forth below.
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Year Ending December 31,
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2010
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2011
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2012
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2013
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2014
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2015
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June 2010 Projections
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|
|
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Income from Operations
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$
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34.8
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$
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39.5
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$
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44.8
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$
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49.7
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$
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54.5
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|
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Depreciation
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$
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7.7
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$
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7.9
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$
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8.4
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$
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8.9
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$
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9.4
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Amortization
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$
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0.5
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$
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0.5
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$
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0.6
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$
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0.6
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$
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0.4
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EBITDA
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$
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43.0
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$
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47.9
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$
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53.8
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$
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59.2
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$
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64.3
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|
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|
EBITDA Addbacks*
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$
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6.9
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$
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7.1
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$
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7.7
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$
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8.0
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$
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8.3
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Adjusted EBITDA
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$
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49.9
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$
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55.0
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$
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61.5
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$
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67.2
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$
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72.6
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September 2010 Projections
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Income from Operations
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$
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38.8
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$
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43.6
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$
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48.0
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$
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52.9
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$
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57.7
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Depreciation
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$
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7.5
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$
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8.0
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$
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8.3
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$
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8.8
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$
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9.3
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Amortization
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$
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0.5
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$
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0.5
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$
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0.6
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$
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0.6
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$
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0.4
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EBITDA
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$
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46.8
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$
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52.1
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$
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56.9
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$
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62.3
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$
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67.4
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$
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73.6
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EBITDA Addbacks*
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$
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8.1
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$
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7.0
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$
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7.7
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$
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8.1
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$
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8.4
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$
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9.1
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Adjusted EBITDA
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$
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54.9
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$
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59.1
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$
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64.6
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$
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70.4
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$
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75.8
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$
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82.7
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October 2010 Projections
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Income from Operations
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$
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40.4
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$
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44.7
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$
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49.2
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$
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54.3
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$
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59.2
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Depreciation
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$
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7.5
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$
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7.9
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$
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8.4
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$
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8.8
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$
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9.3
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Amortization
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$
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0.5
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$
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0.6
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$
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0.5
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$
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0.5
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$
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0.4
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EBITDA
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$
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48.4
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$
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53.2
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$
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58.1
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$
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63.6
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$
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68.9
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EBITDA Addbacks*
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$
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8.1
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$
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7.0
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$
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7.7
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$
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8.0
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$
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8.4
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Adjusted EBITDA
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$
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56.5
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$
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60.2
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$
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65.8
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$
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71.7
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$
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77.3
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2
* Hawks calculation of EBITDA Addbacks includes
certain non-recurring expenses such as (1) $3.0 million to $3.3 million
with respect to Messrs. Weinberg and Harbert, (2) $2.3 million with
respect to fees and expenses associated with operating a publicly traded
company, (3) $1.2 million to $1.5 million related to certain salary and
benefit expenses, (4) $0.3 million associated with Hawks corporate
office, (5) $0.2 million related to expenses associated with corporate
aircraft, (6) approximately $0.2 million related to dues, subscriptions
and other charitable contributions, and (7) approximately $0.1 million
related to current litigation expenses.
For only the year ending December 31, 2010 in the September 2010
Projections and the October 2010 Projections, Hawk determined that EBITDA
Addbacks include $1.3 million of expenses associated with the Transaction.
Item 11. Additional
Information
The subsection of Section 16
of the Offer to Purchase entitled
Antitrust
Compliance
(which begins on page 51 and continues onto page 52)
is hereby amended and supplemented by adding the following text thereto:
On
Tuesday, November 23, 2010, the applicable waiting period under the HSR
Act relating to the Offer was terminated.
Accordingly, the condition of the Offer with respect to the expiration
or termination of the applicable waiting period under the HSR Act has been
satisfied.
The subsection of Section 16
of the Offer to Purchase entitled
Stockholder
Litigation
(which begins on page 54 and continues onto page 55)
is hereby revised and restated in its entirety to read as follows:
Stockholder Litigation
.
Since October 25, 2010, two putative stockholder class action complaints
challenging the transaction contemplated by the Merger Agreement were filed in
the Court of Chancery in the State of Delaware against Hawk, the individual
members of the Hawk Board, Parent and the Purchaser. On November 9, 2010,
plaintiffs in these lawsuits filed a consolidated class action complaint. The
consolidated complaint alleges, among other things, that members of the Hawk
Board breached their fiduciary duties owed to the public stockholders of Hawk
by entering into the Merger Agreement, approving the Offer and the proposed
Merger and failing to take steps to maximize the value of Hawk to its public
stockholders, that the Supporting Stockholders breached their fiduciary duties
of loyalty and entire fairness, and that Parent aided and abetted such breaches
of fiduciary duties. The complaint also alleges that the Merger Agreement
unduly restricts Hawks ability to negotiate with rival bidders, that Hawk
stockholders have been deprived of the ability to make an informed decision as
to whether to tender their Shares, and that the disclosures in the Schedule
14D-9 filed by Hawk and in the Schedule TO filed by the Purchaser and Parent
are materially inaccurate and incomplete. The complaint generally seeks, among
other things, declaratory and injunctive relief concerning the alleged
fiduciary breaches, injunctive relief prohibiting the defendants from
consummating the Merger and other forms of equitable relief. A hearing to
consider the plaintiffs request for a preliminary injunction to prohibit the
consummation of the transactions contemplated by the Merger Agreement has been
scheduled for November 29, 2010.
On November 23, 2010, a memorandum of
understanding regarding settlement of the class action lawsuit (the
MOU
) was agreed to by Hawk, each member of the Board,
Carlisle and the Purchaser (collectively, the
Defendants
)
and each of the plaintiffs party to such litigation (collectively, the
Plaintiffs
and, together with Defendants, the
Parties
). While the Defendants deny the allegations made in
such complaints, they have agreed to enter into the MOU to avoid the costs and
disruptions of any further litigation and to permit the timely consummation of
the Offer or the Merger. The MOU, which is filed as an exhibit to the Schedule
TO, describes the terms that the Parties agree to include in the final
settlement agreement concerning the action (the
Settlement
Agreement
), and describes the actions that the Parties will take or
refrain from taking between the date of the MOU and the date that the
Settlement Agreement is finally approved.
The MOU, among other things, provides that Hawk will
amend the Schedule 14D-9 to include certain supplemental disclosures. The MOU
also provides that the Settlement Agreement will include an injunction against
proceedings in connection with the class action complaints and any additional
complaints concerning claims that will be covered by the Settlement Agreement.
In addition, the MOU provides that the Settlement Agreement will include a
release on behalf of the Plaintiffs, along with other members of the class of
Hawks stockholders certified for purposes of the Settlement Agreement, in
favor of the Defendants and their related parties from any claims that arose
pursuant to or are related to the Offer or the Merger. The
3
Defendants
have agreed that Hawk or its successor will pay the Plaintiffs attorneys fees
and expenses as are awarded by the court not to exceed $450,000, subject to
court approval of the Settlement Agreement and the consummation of the Offer
and the Merger.
The Defendants deny all liability with respect to
the facts and claims alleged in the consolidated class action complaint, and
specifically deny that any further supplemental disclosure was required under
any applicable rule, statute, regulation or law. However, the Defendants
considered it desirable that the action be settled primarily to avoid the
substantial burden, expense, inconvenience and distraction of continued
litigation and to fully and finally resolve all of the claims that were or
could have been brought in the action being settled. In addition, Hawk desired
to provide additional information to its stockholders at a time and in a manner
that would not cause any delay of the Offer or the Merger. Certain of the
disclosures set forth above are also being provided as a result of the MOU. The
summary of the MOU is qualified in its entirety by reference to the MOU, which
is filed herewith as Exhibit (a)(5)(J).
Item 12.
Exhibits
Item 12 of the Schedule
TO is hereby amended and supplemented by adding the following exhibits:
Exhibit
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Description
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(a)(5)(I)
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Joint
Press Release issued by Carlisle Companies Incorporated and Hawk Corporation,
dated November 23, 2010
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(a)(5)(J)
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Memorandum
of Understanding, dated November 23, 2010
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4
SIGNATURE
After
due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
HC Corporation
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By:
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/s/
Michael Roberson
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Name:
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Michael
Roberson
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Title:
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Secretary
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Dated:
November 23, 2010
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Carlisle Companies Incorporated
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By:
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/s/
Steven J. Ford
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Name:
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Steven
J. Ford
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Title:
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Vice
President, Chief Financial Officer,
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and
General Counsel
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Dated:
November 23, 2010
5
Exhibit Index
Exhibit
|
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Description
|
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(a)(1)(A)
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Offer
to Purchase, dated November 1, 2010*
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(a)(1)(B)
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Form of
Letter of Transmittal (including Guidelines for Certification of Taxpayer
Identification Number (TIN) on Substitute Form W-9)*
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(a)(1)(C)
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Form of
Notice of Guaranteed Delivery*
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(a)(1)(D)
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Form of
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees*
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(a)(1)(E)
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Form of
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees*
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(a)(1)(F)
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Form of
Summary Advertisement as published in
The New York Times
on November 1, 2010*
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(a)(1)(G)
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Form of
Notice to Participants in the Hawk Corporation 401(k) Retirement Plan*
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(a)(5)(A)
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Joint
Press Release issued by Carlisle Companies Incorporated and Hawk Corporation,
issued October 15, 2010 (incorporated by reference to Exhibit 99.1
to the Current Report on Form 8-K filed by Carlisle Companies
Incorporated on October 15, 2010)
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(a)(5)(B)
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Presentation
Materials from Conference Call, dated October 15, 2010 (incorporated by
reference to Exhibit 99.2 to the Current Report on Form 8-K filed
by Carlisle Companies Incorporated on October 15, 2010)
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(a)(5)(C)
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Transcript
of Conference Call, held October 15, 2010 (incorporated by reference to
the Schedule TO-C filed by Carlisle Companies Incorporated on
October 15, 2010)
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(a)(5)(D)
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Presentation Materials
from Conference Call, dated October 26, 2010 (incorporated by reference
to the Schedule TO-C filed by Carlisle Companies Incorporated on
October 28, 2010)
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(a)(5)(E)
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Transcript
of Conference Call, held on October 26, 2010 (incorporated by reference
to the Schedule TO-C filed by Carlisle Companies Incorporated on
October 28, 2010)
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(a)(5)(F)
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Complaint
filed by Timothy B. Hardy, individually and on behalf of all others similarly
situated, on October 25, 2010, in the Court of Chancery of the State of
Delaware*
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(a)(5)(G)
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Complaint
filed by Patrick Sweeney, individually and on behalf of all others similarly
situated, on October 27, 2010, in the Court of Chancery of the State of
Delaware*
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(a)(5)(H)
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Consolidated
Complaint filed by Timothy B. Hardy and Patrick Sweeney, on behalf of
themselves and all others similarly situated, on November 9, 2010*
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(a)(5)(I)
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Joint
Press Release issued by Carlisle Companies Incorporated and Hawk Corporation,
dated November 23, 2010
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(a)(5)(J)
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Memorandum
of Understanding, dated November 23, 2010
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(b)(1)
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Second
Amended and Restated Credit Agreement, dated as of July 12, 2007, among
Carlisle Companies Incorporated, Carlisle Management Company, JPMorgan Chase
Bank, N.A., as Administrative Agent and the Banks listed therein (incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K
filed by Carlisle Companies Incorporated on July 17, 2007)
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(d)(1)
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Agreement
and Plan of Merger, dated as of October 14, 2010, among Carlisle
Companies Incorporated, HC Corporation and Hawk Corporation (incorporated by
reference to Exhibit 2.1 to the Current Report on Form 8-K filed by
Carlisle Companies Incorporated on October 15, 2010)
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(d)(2)
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Tender
and Voting Agreement, dated as of October 14, 2010, among Carlisle Companies
Incorporated, HC Corporation and Ronald E. Weinberg (incorporated by
reference to Exhibit 2.2 to the Current Report on Form 8-K filed by
Carlisle Companies Incorporated on October 15, 2010)
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(d)(3)
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Tender and Voting
Agreement, dated as of October 14, 2010, among Carlisle Companies
Incorporated, HC Corporation and Norman C. Harbert (incorporated by reference
to Exhibit 2.3 to the Current Report on Form 8-K filed by Carlisle
Companies Incorporated on October 15, 2010)
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(d)(4)
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Tender and Voting Agreement,
dated as of October 14, 2010, by and among Carlisle Companies
Incorporated, HC Corporation and Byron S. Krantz (incorporated by reference
to Exhibit 2.4 to the Current Report on Form 8-K filed by Carlisle
Companies Incorporated on October 15, 2010)
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6
Exhibit
|
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Description
|
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(d)(5)
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|
Confidentiality
Agreement, dated as of July 30, 2010, between Carlisle Companies
Incorporated and Hawk Corporation*
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(d)(6)
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Exclusivity
Agreement, dated as of October 7, 2010, between Carlisle Companies
Incorporated and Hawk Corporation*
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* Previously filed with the Schedule TO.
Filed herewith.
7
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