1
EXHIBIT 99.5
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON OCTOBER 23,
1998, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF EXISTING PREFERRED
STOCK MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE EXPIRATION DATE.
CLARK MATERIAL HANDLING COMPANY
LETTER OF TRANSMITTAL
13% Senior Exchangeable Preferred Stock Due 2007
TO: UNITED STATES TRUST COMPANY OF NEW YORK,
THE EXCHANGE AGENT
By Registered or Certified Mail: By Overnight Courier or By Hand After 4:30 PM on the Expiration Date Only:
United States Trust Company of New York United States Trust Company of New York
P.O. Box 844 770 Broadway, 13th Floor
Cooper Station New York, New York 10003
New York, New York 10276-0844 Attn: Corporate Trust Services
Attn: Corporate Trust Services
By Hand Up to 4:30 PM: By Facsimile:
United States Trust Company of New York United States Trust Company of New York
111 Broadway, Lower Level (212) 780-0582
New York, New York 10003 Attn: Corporate Trust Services
Corporate Trust Services
Confirm by telephone:
(800) 548-6565
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS
LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL
IS COMPLETED.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE NEW PREFERRED STOCK FOR THEIR
EXISTING PREFERRED STOCK PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND
NOT WITHDRAW) THEIR EXISTING PREFERRED STOCK TO THE EXCHANGE AGENT PRIOR TO THE
EXPIRATION DATE.
The undersigned acknowledges receipt of the Prospectus dated September 18,
1998 (the "Prospectus") of CLARK MATERIAL HANDLING COMPANY (the "Company") and
this Letter of Transmittal (the "Letter of Transmittal"), which together
constitute the Company's Offer to Exchange (the "Exchange Offer") $1,000
liquidation preference amount of its 13% Senior Exchangeable Series B Preferred
Stock due 2007 (the "New Preferred Stock"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which the Prospectus is a part, for each $1,000
liquidation preference amount of its outstanding 13% Senior Exchangeable Series
A Preferred Stock due 2007 (the "Existing Preferred Stock"), of which
$20,000,000 principal amount is outstanding, upon the terms and conditions set
forth in the Prospectus. Other capitalized terms used but not defined herein
have the meaning given to them in the Prospectus.
2
For each Existing Preferred Stock certificate accepted for exchange, the
holder of such Existing Preferred Stock will receive a New Preferred Stock
certificate having a liquidation preference amount equal to that of the
surrendered Existing Preferred Stock certificate. Dividends on the New Preferred
Stock will accrue from the last dividend payment date on which dividends were
paid on the Existing Preferred Stock surrendered in exchange therefor or, if no
dividends have been paid on the Existing Preferred Stock, from the date of
original issue of the Existing Preferred Stock. Holders of Existing Preferred
Stock accepted for exchange will be deemed to have waived the right to receive
any other payments or accrued dividends on the Existing Preferred Stock. The
Company reserves the right, at any time or from time to time, to extend the
Exchange Offer at its discretion, in which event the term "Expiration Date"
shall mean the latest time and date to which the Exchange Offer is extended. The
Company shall notify holders of the Existing Preferred Stock of any extension by
means of a press release or other public announcement prior to 9:00 A.M., New
York City time, on the next business day after the previously scheduled
Expiration Date.
This Letter of Transmittal is to be used by Holders if: (i) certificates
representing Existing Preferred Stock are to be physically delivered to the
Exchange Agent herewith by Holders; (ii) tender of Existing Preferred Stock is
to be made by book-entry transfer to the Exchange Agent's account at The
Depository Trust Company ("DTC"), pursuant to the procedures set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering" by any
financial institution that is a participant in DTC and whose name appears on a
security position listing as the owner of Existing Preferred Stock or (iii)
tender of Existing Preferred Stock is to be made according to the guaranteed
delivery procedures set forth in the prospectus under "The Exchange Offer --
Guaranteed Delivery Procedures." DELIVERY OF DOCUMENTS TO DTC DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term "Holder" with respect to the Exchange Offer means any person: (i)
in whose name Existing Preferred Stock is registered on the books of the Company
or any other person who has obtained a properly completed bond power from the
registered Holder; or (ii) whose Existing Preferred Stock is held of record by
DTC who desires to deliver such Existing Preferred Stock by book-entry transfer
at DTC. The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
3
The instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus, this Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Exchange Agent. See Instruction 10 herein.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER
AND TENDER THEIR EXISTING PREFERRED STOCK MUST COMPLETE THIS
LETTER OF TRANSMITTAL IN ITS ENTIRETY.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE CHECKING ANY BOX BELOW
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DESCRIPTION OF 13% SENIOR EXCHANGEABLE PREFERRED STOCK DUE 2007 (EXISTING
PREFERRED STOCK)
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AGGREGATE LIQUIDATION PREFERENCE LIQUIDATION PREFERENCE AMOUNT
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE AMOUNT REPRESENTED BY TENDERED (IF LESS THAN
(PLEASE FILL IN, IF BLANK) NUMBER(S)* CERTIFICATE(S) ALL)**
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* Need not be completed by Holders tendering by book-entry transfer.
** Unless indicated in the column labeled "Liquidation Preference Amount
Tendered," any tendering Holder of Existing Preferred Stock will be deemed
to have tendered the entire aggregate Liquidation Preference amount
represented by the column labeled "Aggregate Liquidation Preference
Represented by Certificate(s)." If the space provided above is inadequate,
list the certificate numbers and principal amounts on a separate signed
schedule and affix the list to this Letter of Transmittal.
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SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Existing Preferred Stock in a
liquidation preference amount not tendered or not accepted for exchange, or
New Preferred Stock issued in exchange for Existing Preferred Stock accepted
for exchange, are to be issued in the name of someone other than the
undersigned, or if the Existing Preferred Stock tendered by book-entry
transfer that are not accepted for exchange are to be credited to an account
maintained by DTC.
Issue certificate(s) to:
Name:
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Address:
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(INCLUDE ZIP CODE)
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(TAX IDENTIFICATION OR
SOCIAL SECURITY NO.)
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SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Existing Preferred Stock in a
liquidation preference amount not tendered or not accepted for exchange, are
to be sent to someone other than the undersigned, or to the undersigned at an
address other than that shown above.
Mail to:
Name:
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Address:
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(INCLUDE ZIP CODE)
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(TAX IDENTIFICATION OR
SOCIAL SECURITY NO.)
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[ ] CHECK HERE IF TENDERED EXISTING PREFERRED STOCK ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT DTC AND COMPLETE THE
FOLLOWING:
Name of Tendering Institution:
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DTC Book-Entry Account No.:
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Transaction Code No.:
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[ ] CHECK HERE IF TENDERED EXISTING PREFERRED STOCK ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):
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Window Ticket Number (if any):
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Date of Execution of Notice of Guaranteed Delivery:
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IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number: --------------------------- Transaction Code Number: ---------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
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Address:
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Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to the Company the liquidation preference amount of Existing
Preferred Stock indicated above. Subject to and effective upon the acceptance
for exchange of the liquidation preference amount of Existing Preferred Stock
tendered in accordance with this Letter of Transmittal, the undersigned sells,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to the Existing Preferred Stock tendered hereby. The undersigned
hereby irrevocably constitutes and appoints the Exchange Agent its agent and
attorney-in-fact (with full knowledge that the Exchange Agent also acts as the
agent of the Company and as Registrar and Transfer Agent for the Existing
Preferred Stock and New Preferred Stock) with respect to the tendered Existing
Preferred Stock with full power of substitution to (i) deliver certificates for
such Existing Preferred Stock to the Company, or transfer ownership of such
Existing Preferred Stock on the account books maintained by DTC and deliver all
accompanying evidence of transfer and authenticity to, or upon the order of, the
Company and (ii) present such Existing Preferred Stock for transfer on the books
of the Company and receive all benefits and otherwise exercise all rights of
beneficial ownership of such Existing Preferred Stock, all in accordance with
the terms and subject to the conditions of the Exchange Offer. The power of
attorney granted in this paragraph shall be deemed irrevocable and coupled with
an interest.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Existing
Preferred Stock tendered hereby and that the Company will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim, when the same are
acquired by the Company. The undersigned hereby further represents that any New
Preferred Stock acquired in exchange for Existing Preferred Stock tendered
hereby will have been acquired in the ordinary course of business of the Holder
receiving such New Preferred Stock, whether or not such person is the Holder,
that neither the Holder nor any such other person has any arrangement or
understanding with any person to participate in the distribution of such New
Preferred Stock within the meaning of the Securities Act of 1993, as amended,
and that neither the Holder nor any such other person is an "affiliate," as
defined in Rule 405 under the Securities Act, of the Company or any of its
subsidiaries.
The undersigned also acknowledges that this Exchange Offer is being made in
reliance on an interpretation by the staff of the Securities and Exchange
Commission (the "SEC") that the New Preferred Stock issued in exchange for the
Existing Preferred Stock pursuant to the Exchange Offer may be offered for
resale, resold and otherwise transferred by holders thereof (other than any such
holder that is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act), without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such New
Preferred Stock is acquired in the ordinary course of such holders' business,
such holders are not engaging in and do not intend to engage in a distribution
of the New Preferred Stock and such holders have no arrangements with any person
to participate in the distribution of such New Preferred Stock. If the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of New Preferred
Stock. If the undersigned is a broker-dealer that will receive New Preferred
Stock for its own account in exchange for Existing Preferred Stock that were
acquired as a result of market-making activities or other trading activities it
acknowledges that it will deliver a prospectus in connection with any resale of
such New Preferred Stock; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. The undersigned also
acknowledges and agrees that any person who is a broker-dealer registered under
the Exchange Act or is participating in the Exchange Offer for the purposes of
distributing the New Preferred Stock must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
secondary resale transaction of the New Preferred Stock acquired by such person
and cannot rely on the position of the staff of the Commission set forth in
certain no-action letters. The undersigned understands that a secondary resale
transaction described in the previous sentence and any resale of New Preferred
Stock obtained by such holder or other person in exchange for Existing Preferred
Stock acquired by such holder or other person directly from the Company should
be covered by an effective registration statement containing the selling
securityholder information required by Item 507 or Item 508, as applicable, of
Regulation S-K of the Commission.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the assignment, transfer and purchase of the Existing
Preferred Stock tendered hereby. All authority conferred or agreed to be
conferred by this Letter of Transmittal shall survive the death, incapacity or
dissolution of the undersigned and every obligation of the undersigned under
this Letter of Transmittal shall be binding upon the undersigned's heirs,
personal representatives, successors and assigns, trustees in bankruptcy or
other legal representatives of the undersigned. This tender may be withdrawn
only in accordance with the procedures set forth in "The Exchange Offers --
Withdrawal Rights" section of the Prospectus.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Existing Preferred Stock when, as and if the Company
has given oral or written notice thereof to the Exchange Agent.
7
If any tendered Existing Preferred Stock are not accepted for exchange
pursuant to the Exchange Offer for any reason, certificates for any such
unaccepted Existing Preferred Stock will be returned (except as noted below with
respect to tenders through DTC), without expense, to the undersigned at the
address shown below or at a different address as may be indicated under "Special
Delivery Instructions" as promptly as practicable after the Expiration Date.
The undersigned understands that tenders of Existing Preferred Stock
pursuant to the procedures described under the caption "The Exchange Offers --
Procedures for Tendering" in the Prospectus and in the instructions hereto will
constitute a binding agreement between the undersigned and the Company upon the
terms and subject to the conditions of the Exchange Offer.
Unless otherwise indicated under "Special Payment Instructions," please
issue the certificates representing the New Preferred Stock issued in exchange
for the Existing Preferred Stock accepted for exchange and return any Existing
Preferred Stock not tendered or not exchanged in the name(s) of the undersigned
(or in either such event in the case of the Existing Preferred Stock tendered
through DTC, by credit to the undersigned's account, at DTC). Similarly, unless
otherwise indicated under "Special Delivery Instructions," please send the
certificates representing the New Preferred Stock issued in exchange for the
Existing Preferred Stock accepted for exchange and any certificates for Existing
Preferred Stock not tendered or not exchanged (and accompanying documents, as
appropriate) to the undersigned at the address shown below the undersigned's
signature(s), unless, in either event, tender is being made through DTC. In the
event that both "Special Payment Instructions" and "Special Delivery
Instructions" are completed, please issue the certificates representing the New
Preferred Stock issued in exchange for the Existing Preferred Stock accepted for
exchange and return any Existing Preferred Stock not tendered or not exchanged
in the name(s) of, and send said certificates to, the person(s) so indicated.
The undersigned recognizes that the Company has no obligation pursuant to the
"Special Payment Instructions" and "Special Delivery Instructions" to transfer
any Existing Preferred Stock from the name of the registered Holder(s) thereof
if the Company does not accept for exchange any of the Existing Preferred Stock
so tendered.
Holders of Existing Preferred Stock who wish to tender their Existing
Preferred Stock and (i) whose Existing Preferred Stock is not immediately
available or (ii) who cannot deliver their Existing Preferred Stock, this Letter
of Transmittal or any other documents required hereby to the Exchange Agent, or
cannot complete the procedure for book-entry transfer, prior to the Expiration
Date, may tender their Existing Preferred Stock according to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offers -- Guaranteed Delivery Procedures." See Instruction 1 regarding the
completion of the Letter of Transmittal printed below.
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PLEASE SIGN HERE WHETHER OR NOT
EXISTING PREFERRED STOCK ARE BEING PHYSICALLY TENDERED HEREBY
X ___________________________________________________ Date _____________________________
X ___________________________________________________ Date _____________________________
Signature(s) of Registered Holder(s)
Or Authorized Signatory
Area Code and Telephone Number: ___________________________________________
The above lines must be signed by the registered Holder(s) of Existing
Preferred Stock as their name(s) appear(s) on the Existing Preferred Stock
Certificates or, if the Existing Preferred Stock is tendered by a participant in
DTC, as such participant's name appears on a security position listing as the
owner of Existing Preferred Stock, or by person(s) authorized to become
registered Holder(s) by a properly completed stock power from the registered
Holder(s), a copy of which must be transmitted with this Letter of Transmittal.
If Existing Preferred Stock to which this Letter of Transmittal relates are held
of record by two or more joint Holders, then all such holders must sign this
Letter of Transmittal. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person must (i) set forth his or her
full title below and (ii) unless waived by the Company, submit evidence
satisfactory to the Company of such person's authority to act. See Instruction 4
regarding the completion of this Letter of Transmittal printed below.
Name(s): ______________________________________________________________________
(Please Print)
Capacity:______________________________________________________________________
Address: ______________________________________________________________________
(Include Zip Code)
Signature(s) Guaranteed by an Eligible Institution:
(If required by Instruction 4)
_______________________________________________________________________________
(Authorized Signature)
_______________________________________________________________________________
(Title)
_______________________________________________________________________________
(Name of Firm)
Dated: ______________________________
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER AND EXISTING PREFERRED STOCK; GUARANTEED
DELIVERY PROCEDURES. This Letter is to be completed by stockholders, either if
certificates are to be forwarded herewith or if tenders are to be made pursuant
to the procedures for delivery by book-entry transfer set forth in "The Exchange
Offers--Book-Entry Transfer" section of the Prospectus. Certificates for all
physically tendered Existing Preferred Stock, or Book-Entry Confirmation, as the
case may be, as well as a properly completed and duly executed Letter (or
manually signed facsimile hereof) and any other documents required by this
Letter, must be received by the Exchange Agent at the address set forth herein
on or prior to the Expiration Date, or the tendering holder must comply with the
guaranteed delivery procedures set forth below. Existing Preferred Stock
tendered hereby must be in denominations of principal amount of maturity of
$1,000 and any integral multiple thereof.
Stockholders whose certificates for Existing Preferred Stock are not
immediately available or who cannot deliver their certificates and all other
required documents to the Exchange Agent on or prior to the Expiration Date, or
who cannot complete the procedure for book-entry transfer on a timely basis, may
tender their Existing Preferred Stock pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offers--Guaranteed Delivery Procedures"
section of the Prospectus. Pursuant to such procedures, (i) such tender must be
made through an Eligible Institution (as defined in Instruction 4 below), (ii)
prior to the Expiration Date, the Exchange Agent must receive from such Eligible
Institution a properly completed and duly executed Letter (or facsimile thereof)
and Notice of Guaranteed Delivery, substantially in the form provided by the
Company (by facsimile transmission, mail or hand delivery), setting forth the
name and address of the holder of Existing Preferred Stock and the amount of
Existing Preferred Stock tendered, stating that the tender is being made thereby
and guaranteeing that within five New York Stock Exchange ("NYSE") trading days
after the date of execution of the Notice of Guaranteed Delivery, the
certificates for all physically tendered Existing Preferred Stock, or a
Book-Entry Confirmation, and any other documents required by this Letter will be
deposited by the Eligible Institution with the Exchange Agent, and (iii) the
certificates for all physically tendered Existing Preferred Stock, in proper
form for transfer, or Book-Entry Confirmation, as the case may be, and all other
documents required by this Letter, are received by the Exchange Agent within
five NYSE trading days after the date of execution of the Notice of Guaranteed
Delivery.
The method of delivery of this Letter, the Existing Preferred Stock and all
other required documents is at the election and risk of the tendering holders,
but the delivery will be deemed made only when actually received or confirmed by
the Exchange Agent. If Existing Preferred Stock is sent by mail, it is suggested
that the mailing be made sufficiently in advance of the Expiration Date to
permit the delivery to the Exchange Agent prior to 5:00 p.m., New York City
time, on the Expiration Date.
See "The Exchange Offers" section in the Prospectus.
2. TENDER BY HOLDER. Only a holder of Existing Preferred Stock may tender
such Existing Preferred Stock in the Exchange Offer. Any beneficial holder of
Existing Preferred Stock who is not the registered holder and who wishes to
tender should arrange with the registered holder to execute and deliver this
Letter on his or her behalf or must, prior to completing and executing this
Letter and delivering his or her Existing Preferred Stock, either make
appropriate arrangements to register ownership of the Existing Preferred Stock
in such holder's name or obtain a properly completed stock power form the
registered holder.
3. PARTIAL TENDERS. Tenders of Existing Preferred Stock will be accepted
only in integral multiples of $1,000. If less than the entire liquidation
preference amount of any Existing Preferred Stock Certificate is tendered, the
tendering holder should fill in the liquidation preference amount tendered in
the fourth column of the box entitled "Description of 13% Senior Exchangeable
Preferred Stock due 2007 (Existing Preferred Stock)" above. The entire
liquidation preference amount of Existing Preferred Stock delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
If the entire liquidation preference amount of all Existing Preferred Stock is
not tendered, then Existing Preferred Stock for the liquidation preference
amount of Existing Preferred Stock not tendered and a certificate or
certificates representing New Preferred Stock issued in exchange for any
Existing Preferred Stock accepted will be sent to the Holder at his or her
registered address, unless a different address is provided in the appropriate
box on this Letter promptly after the Existing Preferred Stock are accepted for
exchange.
4. SIGNATURES ON THIS LETTER; POWERS OF ATTORNEY AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter is signed by the registered holder of
the Existing Preferred Stock tendered hereby, the signature must correspond
exactly with the name as written on the face of the certificates without any
change whatsoever.
10
If any tendered Existing Preferred Stock are owned of record by two or more
joint owners, all such owners must sign this Letter.
If any tendered Existing Preferred Stock are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are different registrations of
certificates.
When this Letter is signed by the registered holder or holders of the Existing
Preferred Stock specified herein and tendered hereby, no endorsements of
certificates or separate powers of attorney are required. If, however, the New
Preferred Stock is to be issued, or any untendered Existing Preferred Stock is
to be reissued, to a person other than the registered holder, then endorsements
of any certificates transmitted hereby or separate powers of attorney are
required. Signatures on such certificate(s) must be guaranteed by an Eligible
Institution.
If this Letter is signed by a person other than the registered holder or
holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate powers of attorney, in either case signed
exactly as the name or names on the registered holder or holders appear(s) on
the certificate(s) and signatures on such certificate(s) must be guaranteed by
an Eligible Institution.
If this Letter or any certificates or powers of attorney 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 unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
Endorsements on certificates for Existing Preferred Stock or signatures on
powers of attorney required by this Instruction 4 must be guaranteed by a firm
which is a participant in a recognized signature guarantee medallion program
("Eligible Institutions").
Signatures on this Letter must be guaranteed by an Eligible Institution
unless the Existing Preferred Stock is tendered (i) by a registered holder of
Existing Preferred Stock (which term, for purposes of the Exchange Offer,
includes any participant in the Book-Entry Transfer Facility system whose name
appears on a security position listing as the holder of such Existing Preferred
Stock) who has not completed the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" on this Letter, or (ii) for the account of an
Eligible Institution.
5. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. Tendering holders should
indicate, in the applicable box or boxes, the name and address to which New
Preferred Stock or substitute Existing Preferred Stock for liquidation
preference amounts not tendered or not accepted for exchange are to be issued or
sent, if different from the name and address of the person signing this Letter
of Transmittal (or in the case of tender of Existing Preferred Stock through
DTC, if different from DTC). In the case of issuance in a different name, the
taxpayer identification or social security number of the person named must also
be indicated. Stockholders tendering Existing Preferred Stock by book-entry
transfer may request that Existing Preferred Stock not exchanged be credited to
such account maintained at the Book-Entry Transfer Facility as such stockholder
may designate hereon. If no such instructions are given, such Existing Preferred
Stock not exchanged will be returned to the name and address of the person
signing this Letter.
6. TAX IDENTIFICATION NUMBER. Federal income tax law requires that a
holder whose offered Existing Preferred Stock is accepted for exchange must
provide the Company (as payer) with his, her or its correct Taxpayer
Identification Number ("TIN"), which, in the case of an exchanging holder who is
an individual, is his or her social security number. If the Company is not
provided with the correct TIN or an adequate basis for exemption, such holder
may be subject to a $50 penalty imposed by the Internal Revenue Service (the
"IRS"), and payments made with respect to Existing Preferred Stock purchased
pursuant to the Exchange Offer may be subject to backup withholding at a 31%
rate. If withholding results in an overpayment of taxes, a refund may be
obtained. Exempt holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9."
11
To prevent backup withholding, each exchanging holder must provide his, her or
its correct TIN by completing the Substitute Form W-9 enclosed herewith,
certifying that the TIN provided is correct (or that such Holder is awaiting a
TIN) and that (i) the holder is exempt from backup withholding, (ii) the holder
has been notified by the IRS that he, she or it is subject to backup withholding
as a result of a failure to report all interest or dividends, or (iii) the IRS
has notified the holder that he, she or it is no longer subject to backup
withholding. In order to satisfy the Exchange Agent that a foreign individual
qualifies as an exempt recipient, such holder must submit a statement signed
under penalty of perjury attesting to such exempt status. Such statements may be
obtained from the Exchange Agent. If the Existing Preferred Stock is in more
than one name or are not in the name of the actual owner, consult the Substitute
Form W-9 for information on which TIN to report. If you do not provide your TIN
to the Company within 60 days, backup withholding will begin and continue until
you furnish your TIN to the Company.
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Existing Preferred Stock pursuant to the Exchange
Offer. If, however, certificates representing New Preferred Stock or Existing
Preferred Stock for principal amounts not tendered or accepted for exchange are
to be delivered to, or are to be registered or issued in the name of, any person
other than the registered holder of the Existing Preferred Stock tendered
hereby, or if tendered Existing Preferred Stock is registered in the name of any
person other than the person signing this Letter, or if a transfer tax is
imposed for any reason other than the exchange of Existing Preferred Stock
pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or on any other persons) will be
payable by the tendering holder. If satisfactory evidence of payment of such
taxes or exemption therefrom is not submitted herewith, the amount of such
transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Existing Preferred Stock listed in this
Letter.
8. WAIVER OF CONDITIONS. The Company reserves the absolute right to amend,
waive or modify specified conditions in the Exchange Offer in the case of any
Existing Preferred Stock tendered.
9. NO CONDITIONAL TRANSFERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Existing Preferred
Stock, by execution of this Letter, shall waive any right to receive notice of
the acceptance of their Existing Preferred Stock for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Existing Preferred Stock nor shall any of them incur any liability for failure
to give any such notice.
10. MUTILATED, LOST, STOLEN OR DESTROYED EXISTING NOTES. Any tendering
holder whose Existing Preferred Stock have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated herein for
further instructions.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance for additional copies of the Prospectus, this Letter and the
Notice of Guaranteed Delivery may be directed to the Exchange Agent at the
address specified in the Prospectus.
(DO NOT WRITE IN THE SPACE BELOW)
EXISTING EXISTING
CERTIFICATE PREFERRED STOCK PREFERRED STOCK
SURRENDERED TENDERED ACCEPTED
- ------------------ ------------------ ------------------
- ------------------ ------------------ ------------------
- ------------------ ------------------ ------------------
- ------------------ ------------------ ------------------
Delivery Prepared by
--------------- Checked By
--------------- Date
---------------
12
- ----------------------------------------------------------------------------------------------------------
PAYER'S NAME: CLARK MATERIAL HANDLING COMPANY
- ----------------------------------------------------------------------------------------------------------
Name (if joint names, list first and circle the name of the person or
SUBSTITUTE entity whose number you enter in Part 1 below. See instructions if your
FORM W-9 name has changed.)
DEPARTMENT OF THE TREASURY ---------------------------------------------------------------------------
INTERNAL REVENUE SERVICE Address
PAYER'S REQUEST FOR TIN ---------------------------------------------------------------------------
City, state and ZIP code
---------------------------------------------------------------------------
List account number(s) here (optional)
---------------------------------------------------------------------------
----------------------------------------------------------------------------
Part 1--PLEASE PROVIDE YOUR TAXPAYER Social security number
IDENTIFICATION NUMBER ("TIN") IN THE BOX AT or TIN
RIGHT AND CERTIFY BY SIGNING AND DATING ------------------------------
BELOW.
----------------------------------------------------------------------------
Part 2--Check the box if you are NOT subject to backup withholding under
the provisions of section 3408(a)(1)(C) of the Internal Revenue Code
because (1) you have not been notified that you are subject to backup
withholding as a result of failure to report all interest or dividends or
(2) the Internal Revenue Service has notified you that you are no longer
subject to backup withholding.
CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT THE
INFORMATION PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE.
----------------------------------------------------------------------------
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 EXCHANGE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER OR SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
13
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
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF--
- ---------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals The actual owner of
(joint account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife The actual owner of
(joint account) the account or, if
joint funds, either
person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor The adult or, if
(joint account) the minor is the
only contributor,
the minor(1)
6. Account in the name of guardian The ward, minor, or
or committee for a designated incompetent
ward, minor, or incompetent person(3)
person
7. a. The usual revocable savings The grantor-
trust account (grantor is trustee(1)
also trustee)
b. So-called trust account that The actual owner(1)
is not a legal or valid
trust under State law
8. Sole proprietorship account The Owner(4)
- ---------------------------------------------------------
- ---------------------------------------------------------
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
- ---------------------------------------------------------
9. A valid trust, estate, or Legal entity (Do
pension trust not furnish the
identifying number
of the personal
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held in the The partnership
name of the business
13. Association, club, or other The organization
tax-exempt organization
15. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State
or local government, school
district, or prison) that
receives agricultural program
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.
14
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
retirement 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 1941.
- 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 n
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 in
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- Payments described in section 6049(b)(5) to 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
IDENTIFICATION 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, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give tax-payer identification numbers to payers
who must report for payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1994, 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.
15
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.