UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Amendment No. 3
CASCADE CORPORATION
(Name of Subject Company (Issuer))
INDUSTRIAL COMPONENTS AND ATTACHMENTS II, INC.
(Offeror)
An Indirect Wholly-Owned Subsidiary of
TOYOTA INDUSTRIES CORPORATION
(Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
COMMON STOCK, PAR VALUE $.50 PER SHARE
(Title of Class of Securities)
147195101
(CUSIP Number of Class of Securities)
Hirotoshi Nakamura
Group Manager International Legal Affairs Group Legal Department
Toyota Industries Corporation
2-1, Toyoda-cho, Kariya-shi
Aichi 448-8671, Japan
+81-(0)###-##-####
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
John M. Reiss
David M. Johansen
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
CALCULATION OF FILING FEE
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| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $759,024,240.00 |
$103,530.91 | |
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| (1) | Calculated solely for purposes of determining the filing fee. The calculation assumes the purchase of 11,199,400 shares of voting common stock, par value $.50 per share (outstanding as of October 18, 2012). The transaction value also includes the aggregate offer price for (i) 91,750 shares issuable pursuant to outstanding options with an exercise price less than $65.00 per share, which is calculated by multiplying the number of shares underlying such outstanding options at each exercise price therefor by an amount equal to $65.00 minus such exercise price and (ii) 899,568 stock appreciation rights outstanding with a base price less than $65.00 per stock appreciation right, which is calculated by multiplying the number of shares underlying such outstanding stock appreciation rights at each base price therefor by an amount equal to $65.00 minus such base price. |
| (2) | The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2013, issued August 31, 2012, revised October 2012, by multiplying the transaction value by 0.00013640. |
| x | Check the 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: $103,530.91 | Filing Party: Toyota Industries Corporation and Industrial Components and Attachments II, Inc. | |
| Form of Registration No.: Schedule TO | Date Filed: November 2, 2012 |
| ¨ | 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. |
| ¨ | Issuer tender offer subject to Rule 13e-4. |
| ¨ | Going-private transaction subject to Rule 13e-3. |
| x | 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. ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provisions) relied upon:
| ¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 3 to the Tender Offer Statement on Schedule TO (the “Schedule TO”) amends and supplements the Schedule TO relating to the tender offer by (i) Industrial Components and Attachments II, Inc., a Delaware corporation (“Purchaser”) and an indirect wholly-owned subsidiary of Toyota Industries Corporation, a corporation formed under the laws of Japan (“Parent”) and (ii) Parent, for all of the outstanding shares of common stock, par value $.50 per share (the “Shares”), of Cascade Corporation, an Oregon corporation (the “Company”), at a price of $65.00 per Share net to the seller in cash without interest and less any applicable withholding taxes, upon the terms and conditions set forth in the offer to purchase dated November 2, 2012 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, together with any amendments or supplements thereto, collectively constitute the “Offer Documents.”
All information set forth in the Offer Documents is incorporated by reference herein in response to Items 1 through 9 and to Item 11 in this Schedule TO and is supplemented by the information specifically provided in this Schedule TO.
Capitalized terms used but not defined herein have the meanings assigned to such terms in the Offer to Purchase.
This Amendment No. 3 is being filed to amend and supplement Item 11 as reflected below.
Item 11
(a) Agreements, Regulatory Requirements and Legal Proceedings. Item 11(a) of the Schedule TO is hereby amended and supplemented by replacing the first paragraph in the sub-section captioned “German Antitrust Compliance” in Section 16 (Certain Legal Matters; Regulatory Approvals) of the Offer to Purchase with the following paragraph.
“As described below, it is also a condition to Purchaser’s obligation to accept for payment and pay for Shares tendered pursuant to the Offer that approvals in respect of the transactions contemplated by the Merger Agreement shall have been obtained under the German Act Against Restraints of Competition. Purchaser and the Company have agreed to make the requisite filings under the German Act Against Restraints of Competition. The German Act Against Restraints of Competition requires Parent and the Company to file a notification with the Federal Cartel Office (“FCO”) and provides that the acquisition of Shares pursuant to the Offer shall not be consummated until a one-month waiting period has expired without the FCO having cleared the concentration or initiated an in-depth investigation. In the event of an in-depth investigation, the acquisition of Shares pursuant to the Offer may be consummated if a waiting period of four months from submission of a complete notification to the FCO has expired unless the FCO has cleared the concentration or the four-month period has been extended further. Parent submitted the filing in Germany on October 23, 2012. On November 22, 2012, the FCO cleared without conditions the acquisition of Shares pursuant to the Offer and the Merger under the German Act Against Restraints of Competition. Accordingly, the condition to the Offer relating to obtaining the approval of the FCO has been satisfied.”
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| INDUSTRIAL COMPONENTS AND ATTACHMENTS II, INC. | ||
| By: | /s/ Kyoichi Maruyama | |
| Name: | Kyoichi Maruyama | |
| Title: | Sole Officer | |
| Date: | November 23, 2012 | |
| TOYOTA INDUSTRIES CORPORATION | ||
| By: | /s/ Akira Onishi | |
| Name: | Akira Onishi | |
| Title: | Senior Managing Director | |
| Date: | November 23, 2012 | |
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EXHIBIT INDEX
| Exhibit No. |
||
| (a)(1)(A) | Offer to Purchase, dated November 2, 2012.* | |
| (a)(1)(B) | Letter of Transmittal (including Internal Revenue Service Form W-9).* | |
| (a)(1)(C) | Notice of Guaranteed Delivery.* | |
| (a)(1)(D) | Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.* | |
| (a)(1)(E) | Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.* | |
| (a)(1)(F) | Joint Press Release of Cascade Corporation and Toyota Industries Corporation, dated October 22, 2012 (incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by Toyota Industries Corporation with the Securities and Exchange Commission on October 22, 2012).* | |
| (a)(1)(G) | Summary Advertisement as published in the Wall Street Journal on November 2, 2012.* | |
| (a)(1)(H) | Letter to Savings and Investment Plan Participants.* | |
| (a)(5) | Press Release of Toyota Industries Corporation, dated November 2, 2012.* | |
| (a)(6) | Class Action Complaint dated November 1, 2012 (Ibew Local 98 Pension Fund v. Cascade Corporation, et. al.).* | |
| (a)(7) | Class Action Complaint dated November 2, 2012 (Joseph Polyak v. Cascade Corporation, et. al.).* | |
| (a)(8) | Amended Class Action Complaint dated November 9, 2012 (Joseph Polyak v. Cascade Corporation, et. al.).* | |
| (b) | None. | |
| (d)(1) | Agreement and Plan of Merger, dated October 22, 2012, by and among Cascade Corporation, Toyota Industries Corporation and Industrial Components and Attachments II, Inc (incorporated herein by reference to Exhibit 1 to the Schedule 13D filed by Toyota Industries Corporation with the Securities and Exchange Commission on November 1, 2012).* | |
| (d)(2) | Tender and Voting Agreement, dated as of October 22, 2012, by and among Toyota Industries Corporation, Industrial Components and Attachments II, Inc. and certain shareholders of Cascade Corporation (incorporated herein by reference to Exhibit 2 to the Schedule 13D filed by Toyota Industries Corporation with the Securities and Exchange Commission on November 1, 2012).* | |
| (d)(3) | Confidentiality Agreement, dated as of August 3, 2012, by and between Toyota Material Handling, U.S.A., Inc. and Cascade Corporation.* | |
| (g) | None. | |
| (h) | None. | |
| * | Previously filed |
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