Atmus Filtration Technologies Inc S-4/A, filed Mar 7, 2024
Atmus Filtration Technologies Inc. (ATMU)
S-4/A
2024-03-07
View Original
Added on
October 26, 2026
As filed with the U.S. Securities and Exchange Commission on March 7, 2024
Registration No. 333-277051
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNDER
THE SECURITIES ACT OF 1933
Atmus Filtration Technologies Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization) |
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3714
(Primary Standard Industrial
Classification Code Number) |
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88-1611079
(I.R.S. Employer
Identification Number) |
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26 Century Boulevard
Nashville, Tennessee 37214
(615) 514-7339
Nashville, Tennessee 37214
(615) 514-7339
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Toni Y. Hickey
26 Century Boulevard
Nashville, Tennessee 37214
(615) 514-7339
26 Century Boulevard
Nashville, Tennessee 37214
(615) 514-7339
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
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Mark Mandel, Esq.
Carol B. Stubblefield, Esq. Baker & McKenzie LLP 452 Fifth Avenue New York, New York 10018 (212) 626-4100 |
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Roxane F. Reardon, Esq.
Lesley Peng, Esq. Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, New York 10017 (212) 455-2000 |
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Approximate date of commencement of proposed sale to the public: As promptly as practicable after the filing of this registration statement and the satisfaction or, where legally permitted, waiver of the other conditions to the commencement of the exchange offer described herein.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
The sole purpose of this Amendment No. 1 to the Company’s Registration Statement on Form S-4 (File No. 333-277051) is to amend the exhibit index and to (i) file KPMG LLP’s tax opinion at exhibit 8.1, as well as (ii) replace the Form of Letter of Transmittal at exhibit 99.1, the Instruction Booklet to the Letter of Transmittal at exhibit 99.2, and the Form of Notice of Guaranteed Delivery at exhibit 99.3 with the versions filed herewith. Persons who have previously completed and delivered a letter of transmittal or notice of guaranteed delivery will not be required to complete and deliver a new letter of transmittal or notice of guaranteed delivery.
Accordingly, this Amendment No. 1 consists only of the facing page, this explanatory note, Part II, including the signature page and the exhibit index, and the exhibits filed herewith. This Amendment No. 1 does not contain a copy of the prospectus that was included in the Company’s Registration Statement on Form S-4 and is not intended to amend any part of the prospectus.
PART II — INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Officers and Directors.
Section 102(b)(7) of the DGCL, allows a corporation to provide in its certificate of incorporation that a director or certain officers of the corporation will not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable, except where the director or officer breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law or obtained an improper personal benefit. Atmus’ amended and restated certificate of incorporation provides for this limitation of liability.
Section 145 of the DGCL, or Section 145, provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred.
Section 145 also provides that the expenses incurred by a director, officer, employee or agent of the corporation or a person serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise in defending any action, suit or proceeding may be paid in advance of the final disposition of the action, suit or proceeding, subject, in the case of current officers and directors, to the corporation’s receipt of an undertaking by or on behalf of such officer or director to repay the amount so advanced if it shall be ultimately determined that such person is not entitled to be indemnified.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145.
Atmus’ bylaws provide that Atmus must indemnify its directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of Atmus’ amended and restated certificate of incorporation, Atmus’ bylaws, agreement, vote of shareholders or disinterested directors or otherwise.
Atmus maintains standard policies of insurance that provide coverage (i) to Atmus’ directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (ii) to Atmus with respect to indemnification payments that it may make to such directors and officers.
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Atmus entered into indemnification agreements with its independent directors and may enter into such agreements with its other directors. These agreements require Atmus to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to Atmus, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, Atmus has been informed that, in the opinion of the SEC, such indemnification is against public policy and is therefore unenforceable.
Item 21. Exhibits and Financial Statement Schedules
(a)
Exhibits. See the Exhibit Index immediately preceding the signature page hereto, which is incorporated by reference as if fully set forth herein.
(b)
Financial Statement Schedules. All schedules are omitted because the required information is (i) not applicable, (ii) not present in amounts sufficient to require submission of the schedule and/or included in the financial statements and accompanying notes thereto included in the prospectus filed as part of this registration statement.
Item 22. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933.
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a
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purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form.
(8)
That every prospectus (i) that is filed pursuant to paragraph (h)(1) immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(9)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referenced in Item 20 of this registration statement, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
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being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(b)
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of this registration statement through the date of responding to the request.
(c)
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective.
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EXHIBIT INDEX
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Exhibit No.
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Description
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3.1**
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3.2**
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5.1**
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8.1*
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10.1#**
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10.2#**
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10.3#**
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10.4#**
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10.5#**
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10.6#**
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10.7#**
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10.8#**
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10.9#**
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10.10+**
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Exhibit No.
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Description
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99.11**
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99.12**
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107**
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*
Filed herewith.
**
Previously filed.
+
Denotes management contract or compensatory plan or arrangement.
#
Certain exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant hereby undertakes to furnish supplementally a copy of any omitted exhibit or schedule upon request by the Securities and Exchange Commission.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Nashville, State of Tennessee, on March 7, 2024.
| | | | | ATMUS FILTRATION TECHNOLOGIES INC. | | |||
| | | | | By: | | |
/s/ Jack M. Kienzler
Name: Jack M. Kienzler
Title: Chief Financial Officer |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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SIGNATURE
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TITLE
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DATE
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*
Stephanie J. Disher
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Chief Executive Officer and Director (Principal Executive Officer)
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March 7, 2024
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/s/ Jack M. Kienzler
Jack M. Kienzler
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Chief Financial Officer
(Principal Financial and Accounting Officer) |
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March 7, 2024
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*
Stephen Macadam
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Director and Non-Executive Chairman
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March 7, 2024
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*
Sharon Barner
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Director
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March 7, 2024
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*
R. Edwin Bennett
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Director
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March 7, 2024
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*
Cristina Burrola
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Director
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March 7, 2024
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*
Gretchen Haggerty
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Director
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March 7, 2024
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*
Jane Leipold
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Director
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March 7, 2024
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SIGNATURE
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TITLE
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DATE
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*
Earl Newsome
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Director
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March 7, 2024
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*
Tony Satterthwaite
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Director
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March 7, 2024
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*
Mark Smith
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Director
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March 7, 2024
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*
Nathan Stoner
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Director
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March 7, 2024
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* By:
/s/ Jack M. Kienzler
Jack M. Kienzler
Attorney-in-Fact |
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Exhibit 8.1
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KPMG LLP Washington National Tax 1801 K Street, NW Suite 12000 Washington, DC 20006 |
Telephone 202 533 3000 Fax 202 533 8500 Internet www.us.kpmg.com |
March 7, 2024
Cummins Inc.
500 Jackson Street
Box 3005
Columbus, Indiana 47202-3005
Ladies and Gentlemen:
This opinion (the “Opinion”) is issued to Cummins Inc. (“Cummins”) regarding certain United States (“U.S.”) federal income tax consequences associated with (i) the contribution of all of the stock of Cummins Filtration, Inc. (“Cummins Filtration”) to Atmus Filtration Technologies Inc. (“Atmus”), a newly formed corporation (the “Contribution”), (ii) the distribution by Cummins of greater than 80 percent of the total combined voting power and value of all Atmus stock to its shareholders (the “Distribution”) (a) in exchange for common stock of Cummins pursuant to a registered exchange offer (the “Exchange Offer”) or (b) if the Exchange Offer is not fully subscribed, on a pro rata basis in accordance with their stock ownership (the “Clean-Up Distribution”), and (iii) certain related transactions (collectively, the “Atmus Separation”). The Atmus Separation is described in a registration statement filed by Atmus with the Securities and Exchange Commission (“SEC”) on Form S-4 under the Securities Act of 1933 (the “Registration Statement”).
This Opinion speaks to the facts as of the date immediately prior to the first step of the Atmus Separation. Further, with respect to the application of law to a specific step of the Atmus Separation, this Opinion speaks to the law as of the date immediately prior to the implementation of such step. Unless the context clearly otherwise indicates, all facts and law discussed or described in this Opinion refer to facts and law as they existed as of the dates described above, even though present tense verbs (or other language with similar connotations) are used to describe such facts or law.
Any advice in this Opinion is limited to the conclusions specifically set forth herein. KPMG LLP (“KPMG”) expresses no opinion with respect to any other federal, state, local, or foreign tax or legal aspect of the matters described in this letter. No inference should be drawn on any matter not specifically opined on in this Opinion.
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Cummins Inc. Tax Opinion – The Atmus Separation March 7, 2024 |
In rendering our advice, we may consider, for example, the applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”)1 and the Treasury Regulations promulgated (or proposed to be promulgated) thereunder, and the relevant state and foreign statutes, the regulations thereunder, income tax treaties, and judicial and administrative interpretations thereof. These authorities are subject to change or modification retroactively and prospectively and any such changes could affect the validity or correctness of our Opinion.
This advice is not binding on the Internal Revenue Service (the “Service”), any other tax authority, or any court, and no assurance can be given that a position contrary to that expressed herein will not be asserted by a tax authority and ultimately sustained by a court.
This advice is based on the completeness and accuracy of any one or more of the facts, assumptions, and client representations on which we relied, relating to the matter to which this advice is addressed. More specifically, the opinions contained in this letter are based on the facts you have provided to us, the assumptions you have instructed us to make, if any, and the representations you have made to us as set forth below in your separate signed representation letter dated March 7, 2024. In rendering our opinion, we have also relied upon, with your permission, the private letter ruling issued by the Service to Cummins, and your original request for rulings together with the supplemental submissions and correspondence submitted to the Service. If any of these facts, assumptions, or representations is not entirely complete or accurate, it is imperative that we be informed immediately in writing, as the incompleteness or inaccuracy could cause us to change our opinions.
For purposes of our Opinion, we have considered (i) the facts, representations, and assumptions to be, and continue to be, true, correct, and complete as of the date of our Opinion and (ii) any such representations that are qualified by language such as “to the best of the knowledge” or similar language to be, and will continue to be, true, correct, and complete without regard to any such qualification or similar qualification.
Unless separately agreed in writing, we will not update our advice for subsequent changes or modifications to the law, regulations, or to the judicial and administrative interpretations thereof, nor to take into account your correcting, updating, or providing new or additional facts or information you supplied or any assumptions on which we relied in preparing our advice.
1 Unless otherwise indicated, all “section” references are to the Code.
2
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Cummins Inc. Tax Opinion – The Atmus Separation March 7, 2024 |
The advice or other information in this letter was prepared for the sole benefit of Cummins and may not be relied upon by any other person or organization. KPMG accepts no responsibility or liability in respect of this letter to any person or organization other than Cummins. KPMG consents to the use of our name in the Registration Statement and to the filing of this opinion with the SEC as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the SEC promulgated thereunder.
Based on the facts, representations, and assumptions, and subject to any conditions or limitations in this Opinion, we are of the opinion that, for U.S. federal income tax purposes:
| 1. | The Contribution will qualify as a reorganization described in section 368(a)(1)(D). Accordingly, neither Cummins nor Atmus will recognize income, gain or loss in the Contribution. |
| 2. | The Distribution will qualify as a distribution described in section 355(a) and sections 355(d) through (h) will not apply to the Distribution. Accordingly, neither Cummins nor Atmus shareholders will recognize income, gain or loss in the Distribution. |
| 3. | With respect to shareholders of Cummins that receive shares of Atmus stock pursuant to the Exchange Offer, such shareholders’ basis in their Atmus stock (including any fractional share interest in Atmus stock to which such shareholder may be entitled) held immediately after the Distribution will be equal to their basis in the stock of Cummins exchanged therefor. Section 358(a)(1). |
| 4. | Each shareholder of Cummins will have a holding period in the Atmus stock (including any fractional share interest in Atmus stock to which such shareholder may be entitled) that includes the holding period of the Cummins stock with respect to which the Distribution is made, provided each shareholder of Cummins holds its Cummins stock as a capital asset on the date of the Distribution. Section 1223(1). |
| 5. | The receipt by shareholders of Cummins of cash in lieu of fractional shares, if any, of Atmus stock will result in gain or loss measured by the difference between the basis of the fractional share deemed to be received, as determined above, and the amount of cash received. Section 1001. Any gain or loss will be treated as a capital gain or loss, provided the fractional share of stock would be held as a capital asset on the date of the Distribution. Sections 1221 and 1222. |
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Cummins Inc. Tax Opinion – The Atmus Separation March 7, 2024 |
**************
Very truly yours,
/s/ KPMG LLP
| KPMG LLP |
4
Exhibit 99.1
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Sign and provide your tax ID number on the IRS Form W-9 provided herein (or the appropriate IRS Form W-8 if you are a non-U.S. shareholder, a copy of which can be obtained at www.irs.gov).Signature of owner Signature of co-owner, if anyArea Code/Phone Number¬¬¬__________________________SIGNATURE(S) GUARANTEED (IF REQUIRED). See Instruction 2.Unless the shares were tendered by the registered holder(s) of the common shares, or for the account of a member of a Eligible Institution, your signature(s) must be guaranteed by an Eligible Institution.Authorized Signature Name of Firm¬¬ _____________________________________________________Address of Firm – Please Print
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Exhibit 99.2
Instruction Booklet
to the
Letter of Transmittal for the
OFFER TO EXCHANGE
up to 67,054,726 Shares of Common Stock of
to the
Letter of Transmittal for the
OFFER TO EXCHANGE
up to 67,054,726 Shares of Common Stock of
ATMUS FILTRATION TECHNOLOGIES INC.
which are beneficially owned by Cummins Inc.
for Shares of Common Stock of
for Shares of Common Stock of
CUMMINS INC.
Pursuant to the Prospectus dated February 14, 2024
| | | THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, AT THE END OF THE DAY ON MARCH 13, 2024, UNLESS THE OFFER IS EXTENDED OR TERMINATED. SUCH DATE OR, IF THE OFFER IS EXTENDED, THE DATE UNTIL WHICH THE OFFER IS EXTENDED, IS REFERRED TO IN THIS DOCUMENT AS THE “EXPIRATION DATE.” SHARES OF CUMMINS COMMON STOCK TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION OF THE EXCHANGE OFFER. | | |
This Instruction Booklet to the Letter of Transmittal provides information and instructions on how to properly complete the Letter of Transmittal. We urge you to read this Instruction Booklet and the Prospectus dated February 14, 2024 (the “Prospectus”). After carefully reading these materials, please complete the enclosed Letter of Transmittal and return it to the Exchange Agent at one of the addresses listed below. You should complete the Letter of Transmittal only if you hold shares of common stock of Cummins in certificated form or in uncertificated form registered directly in your name in Cummins’ share register.
The Information Agent for the Exchange Offer is:
![[MISSING IMAGE: lg_okapipartnersnew-4c.jpg]](/stocks/atmu/documents/e349cf94-331d-4763-a71b-5b73e66210ae/asset/lg_okapipartnersnew-4c.jpg)
Okapi Partners LLC
1212 Avenue of the Americas, 17th Floor
New York, NY 10036
In the U.S., including Puerto Rico, and Canada, please call (toll-free): +1-877-279-2311
All other areas, please call: +1-917-484-4425
Email: info@okapipartners.com
1212 Avenue of the Americas, 17th Floor
New York, NY 10036
In the U.S., including Puerto Rico, and Canada, please call (toll-free): +1-877-279-2311
All other areas, please call: +1-917-484-4425
Email: info@okapipartners.com
The Exchange Agent for the Exchange Offer is:
![[MISSING IMAGE: lg_broadridger-4clr.jpg]](/stocks/atmu/documents/e349cf94-331d-4763-a71b-5b73e66210ae/asset/lg_broadridger-4clr.jpg){kind=small}
Broadridge Corporate Issuer Solutions, LLC.
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If using UPS, FedEx or Courier:
Broadridge, Inc. Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
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If using USPS Service:
Broadridge, Inc. Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 |
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IMPORTANT - PLEASE READ THIS INSTRUCTION BOOKLET CAREFULLY BEFORE COMPLETING THE ENCLOSED, OR, IF ELIGIBLE, THE ELECTRONIC, LETTER OF TRANSMITTAL
Ladies and Gentlemen:
Reference is made to the Prospectus, the enclosed Letter of Transmittal and this Instruction Booklet to the Letter of Transmittal (this “Instruction Booklet”), which, together with any amendments or supplements thereto or hereto, constitute the offer to exchange (the “Exchange Offer”) by Cummins, a Indiana corporation, up to an aggregate of 67,054,726 shares of common stock, par value $0.0001 per share (“Atmus Common Stock”), of Atmus, a Delaware corporation (“Atmus”), owned by Cummins, for outstanding shares of Cummins common stock, par value $2.50 per share (“Cummins Common Stock”), that are validly tendered and not validly withdrawn prior to the expiration of the Exchange Offer. Such exchange shall be consummated at a ratio of shares of Atmus Common Stock for each share of Cummins Common Stock tendered, upon the terms and subject to the conditions set forth herein and in the Prospectus. The Exchange Offer will expire and related withdrawal rights shall terminate at 12:00 midnight, New York City time, at the end of the day on March 13, 2024, unless extended or terminated in accordance with applicable law and the terms of the Exchange Offer. The last day on which tenders will be accepted, whether on March 13, 2024 or any later date to which the Exchange Offer is extended, is referred to herein as the “expiration date.”
Upon the terms and subject to the conditions of the Exchange Offer, by executing the Letter of Transmittal, I hereby irrevocably appoint Cummins’ designees as my attorneys-in-fact and proxies, each with full power of substitution, to the full extent of my rights with respect to my shares of Cummins Common Stock validly tendered and accepted for exchange by Cummins and with respect to any and all other shares of Cummins Common Stock and other securities issued or issuable in respect of the tendered shares of Cummins Common Stock on or after the expiration of the Exchange Offer. That appointment is effective when and only to the extent that Cummins deposits the shares of Cummins Common Stock for the shares of Atmus Common Stock that I have validly tendered with Broadridge Corporate Issuer Solutions, LLC (the “Exchange Agent”). All such proxies shall be considered coupled with an interest in the validly tendered shares of Cummins Common Stock and therefore shall not be revocable. Upon the effectiveness of such appointment, all prior proxies that I have given will be revoked and I may not give any subsequent proxies (and, if given, they will not be deemed effective). Cummins’ designees will, with respect to the shares of Cummins Common Stock for which the appointment is effective, be empowered, among other things, to exercise all of my voting and other rights as they, in their sole discretion, deem proper. Cummins reserves the right to require that, in order for shares of Cummins Common Stock to be deemed validly tendered, immediately upon Cummins’ acceptance for exchange of those shares of Cummins Common Stock, Cummins must be able to exercise full voting rights with respect to such shares.
In connection with the Exchange Offer and my tender of shares of Cummins Common Stock, by executing the Letter of Transmittal, I hereby represent and warrant to Cummins that:
(1) I have full power and authority to tender, sell, assign and transfer the shares of Cummins Common Stock represented by the stock certificate(s) surrendered herewith or transferred in book-entry form, or covered by a guarantee of delivery. When Cummins accepts such shares for exchange pursuant to the Exchange Offer, Cummins will acquire good, marketable and unencumbered title to such shares, free and clear of all liens, restrictions, changes and encumbrances and not subject to any adverse claims. I will, upon request, execute and deliver any additional documents reasonably deemed by the Exchange Agent to be appropriate or necessary to complete the tender, sale, assignment and transfer of my shares of Cummins Common Stock, and all authority I have conferred or agreed to confer in the Letter of Transmittal and all of my obligations
hereunder shall be binding upon my successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives, and shall survive and not be affected by my death or incapacity.
(2)(a) I have a net long position equal to or greater than the amount of (1) shares of Cummins Common Stock tendered or (2) other securities immediately convertible into or exchangeable or exercisable for the shares of Cummins Common Stock tendered and I will acquire such shares for tender by conversion, exchange or exercise; and (b) I will cause such shares to be delivered in accordance with the terms of the Prospectus.
(3) [Reserved].
(4) I understand that neither surrender nor an election is made in acceptable form until receipt by the Exchange Agent of this Letter of Transmittal, duly completed and manually signed, together with any stock certificate(s) representing shares of Cummins Common Stock and all accompanying evidences of authority. I agree that all questions as to validity, form and eligibility of any surrender of the shares of Cummins Common Stock will be determined by the Exchange Agent.
(5) I understand that, pending the completion of the offer, I may not and shall not sell or otherwise transfer the shares of Cummins Common Stock subject to this Letter of Transmittal unless the offer is terminated or I properly revoke this election prior to the Election Deadline.
(6) I acknowledge that, until I properly surrender the certificate(s) representing the shares of Cummins Common Stock to which this Letter of Transmittal relates or properly transfer such shares of Cummins Common Stock in book-entry form, I will not receive any consideration issuable or payable in connection with the offer. Delivery of such certificate(s) will be effected, and risk of loss and title to such certificate) will pass, only upon proper delivery thereof to the Exchange Agent in the appropriate manner to one of the addresses listed in the Instruction Booklet to the Letter of Transmittal.
(7) FOR NON-U.S. PERSONS: I acknowledge that Cummins has advised me that it has not taken any action under the laws of any country outside the United States to qualify or otherwise facilitate a public offer to exchange Cummins Common Stock for Atmus Common Stock in that country; that there may be restrictions that apply in other countries, including with respect to transactions in Cummins Common Stock or Atmus Common Stock in my home country; that, if I am located outside the United States, my ability to tender Cummins Common Stock in the Exchange Offer will depend on whether there is an exemption available under the laws of my home country that would permit me to participate in the Exchange Offer without the need for Cummins or Atmus to take any action to qualify or otherwise facilitate a public offering in that country or otherwise; that Cummins will rely on my representation that my participation in the Exchange Offer is made pursuant to and in compliance with the applicable laws in the jurisdiction in which I am resident or from which I am tendering my shares and in a manner that will not require Cummins or Atmus to take any action to qualify or otherwise facilitate a public offering in that country or otherwise; and that Cummins will rely on my representations concerning the legality of my participation in the Exchange Offer in determining to accept any shares that I am tendering for exchange. By executing the Letter of Transmittal, I will, upon request, execute and deliver any further documents that either the Exchange Agent or Cummins deems to be necessary or desirable to complete the sale, assignment and transfer of the shares I have tendered, and all authority I have conferred or agreed to confer in the Letter of Transmittal and all of my obligations hereunder shall be binding upon my successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives, and shall survive and not be affected by my death or incapacity.
INSTRUCTIONS
Forming Part of the Terms and Conditions of this Exchange Offer
IMPORTANT: IN ORDER FOR YOU TO PARTICIPATE IN THE EXCHANGE OFFER, THE EXCHANGE AGENT MUST RECEIVE, ON OR BEFORE 12:00 MIDNIGHT, NEW YORK CITY TIME, AT THE END OF THE DAY ON THE EXPIRATION DATE OF THE EXCHANGE OFFER, (A) (I) SHARE CERTIFICATES REPRESENTING ALL VALIDLY TENDERED SHARES OF CUMMINS COMMON STOCK (OTHER THAN SHARES OF CUMMINS COMMON STOCK IN UNCERTIFICATED FORM REGISTERED DIRECTLY IN CUMMINS’ SHARE REGISTER), IN PROPER FORM FOR TRANSFER OR (II) WITH RESPECT TO SHARES DELIVERED BY BOOK-ENTRY TRANSFER THROUGH DTC, CONFIRMATION OF A BOOK-ENTRY TRANSFER OF THOSE SHARES IN THE EXCHANGE AGENT’S ACCOUNT AT DTC (A “DTC CONFIRMATION”); (B) THE LETTER OF TRANSMITTAL OR, IN THE CASE OF SHARES DELIVERED BY BOOK-ENTRY TRANSFER THROUGH DTC, AN AGENT’S MESSAGE; AND (C) ANY OTHER REQUIRED DOCUMENTS.
1. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If the Letter of Transmittal is signed by the registered holder(s) of the shares of Cummins Common Stock tendered thereby, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) or as reflected on the Letter of Transmittal for shares of Cummins Common Stock in uncertificated form registered directly in Cummins’ share register (“Direct Registration Shares”), in each case, without alteration, enlargement or any change whatsoever. If any of the shares of Cummins Common Stock tendered by the Letter of Transmittal are held of record by two or more joint owners, each such owner must sign the Letter of Transmittal.
If any of the shares of Cummins Common Stock tendered by the Letter of Transmittal 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 such different registrations.
If the Letter of Transmittal or any share certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in- fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and must submit to the Exchange Agent proper evidence satisfactory to Cummins of the authority of such person to so act. Proper evidence of authority includes a power of attorney, a letter of testamentary, a letter of appointment or a Letter of Transmittal with a signature guarantee (as defined in Instruction 2).
If the Letter of Transmittal is signed by the registered holder(s) of the shares of Cummins Common Stock listed and transmitted thereby, no endorsements of share certificates or separate stock powers are required.
If the certificate(s) of Cummins Common Stock or Direct Registration Shares are registered in the name of a person other than the person who signs the Letter of Transmittal, and other than in the case of a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, the certificates must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name or names of the registered holder(s) appear on the face of the certificates or as reflected on the Letter of Transmittal for Direct Registration Shares, in each case, without alteration, enlargement or any change whatsoever, with the signature(s) on the certificates or stock powers guaranteed by an Eligible Institution (as defined below in Instruction 2).
2. Signature Guarantees. All signatures on the Letter of Transmittal must be guaranteed by a firm which is a member in good standing of the Securities Transfer Agents Medallion Program or by
an eligible guarantor institution (as defined in Rule 17Ad-15 under the Exchange Act) (each of the foregoing, an “Eligible Institution”), unless (a) the Letter of Transmittal is signed by the registered holder(s) of shares of Cummins Common Stock tendered therewith, and such holder(s) has (have) not completed the “Special Transfer Instructions” or “Special Delivery Instructions,” as applicable, enclosed with the Letter of Transmittal or (b) such shares of Cummins Common Stock are tendered for the account of an Eligible Institution. Holders of Cummins Common Stock may also need to have any certificates they deliver endorsed or accompanied by a stock power, and the signature on such documents may also need to be guaranteed. See Instruction 1.
3. Delivery of Letter of Transmittal and Certificates or Book-Entry Confirmations. The Letter of Transmittal shall be used (i) if you are tendering certificated shares and share certificates are forwarded with the Letter of Transmittal or pursuant to a Notice of Guaranteed Delivery, or (ii) if Direct Registration Shares registered in your name are to be tendered. If you are tendering certificated shares, you must return an original executed copy of the Letter of Transmittal or, if applicable, a Notice of Guaranteed Delivery to the Exchange Agent to one of the addresses set forth at the end of this Instruction Booklet
Please do not send any share certificates, Letters of Transmittal or other documents directly to Cummins, Atmus, the Information Agent or any of the dealer managers. The Exchange Agent must receive, on or before the expiration date of the Exchange Offer at one of its mailing addresses set forth herein:
(i) (a) share certificates representing all tendered shares of Cummins Common Stock (other than any Direct Registration Shares), in proper form for transfer; or (b) in the case of shares delivered by book-entry transfer through DTC, a DTC Confirmation;
(ii) a Letter of Transmittal for shares of Cummins Common Stock, properly completed and duly executed (including any signature guarantees that may be required) or, in the case of shares delivered by book-entry transfer through DTC, an agent’s message (as defined below); and
(iii) any other required documents (whether required by the Letter of Transmittal or otherwise).
A properly completed and duly executed Letter of Transmittal must accompany each delivery of shares to the Exchange Agent (whether such shares are certificated or are uncertificated Direct Registration Shares).
THE METHOD USED TO DELIVER THE SHARE CERTIFICATES OF SHARES OF CUMMINS COMMON STOCK AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. DELIVERY OF ALL SUCH DOCUMENTS IS NOT EFFECTIVE AND RISK OF LOSS OF THE SHARES DOES NOT PASS TO THE EXCHANGE AGENT UNTIL THE EXCHANGE AGENT RECEIVES SUCH DOCUMENTS (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER THROUGH DTC, AN AGENT’S MESSAGE AND A DTC CONFIRMATION). IF DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted. All tendering shareholders, by executing the Letter of Transmittal or causing an agent’s message and a DTC Confirmation to be delivered, waive any right to receive any notice of the acceptance of their shares of Cummins Common Stock for exchange.
All questions as to the form of documents (including notices of withdrawal) and the validity, form, eligibility (including time of receipt) and acceptance for exchange of a tender of shares of
Cummins Common Stock will be determined by Cummins in its sole discretion. Cummins may delegate such power in whole or in part to the Exchange Agent. A valid tender will not be deemed to have been made until all defects and irregularities have been cured or waived, but Cummins reserves the right to waive any irregularities or defects in the tender of any shares of Cummins Common Stock. Any such determinations may be challenged in a court of competent jurisdiction.
If you hold Cummins Common Stock through a broker, dealer, commercial bank, trust company, custodian or similar institution, you should not use the Letter of Transmittal to direct the tender of your shares, but instead should follow the instructions sent to you by that institution. That institution must notify DTC and cause it to transfer the shares into the Exchange Agent’s account in accordance with DTC procedures. If that institution holds shares of Cummins Common Stock through DTC, it must also ensure that the Exchange Agent receives a DTC Confirmation and an agent’s message from DTC confirming the book-entry transfer of your shares of Cummins Common Stock. The term “agent’s message” means a message, transmitted by DTC to, and received by, the Exchange Agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the participant in DTC tendering the shares that are the subject of the accompanying DTC Confirmation that (i) such participant has received and agrees to be bound by the terms of the Letter of Transmittal and the related Instruction Booklet and (ii) Cummins may enforce such agreement against the participant.
4. Notice of Guaranteed Delivery. Shareholders (i) whose share certificates are not immediately available; (ii) who cannot comply with the procedures for book-entry transfer on a timely basis; or (iii) who cannot deliver shares or other required documents to the Exchange Agent on or before the expiration date of the Exchange Offer may still tender their shares by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedure described in the Prospectus under “The Exchange Offer—Procedures for Tendering.” Those procedures require that:
(a)
such tender must be made by or through an Eligible Institution;
(b)
on or before the expiration date of the Exchange Offer, the Exchange Agent must receive a properly completed and duly executed Notice of Guaranteed Delivery (substantially in the form provided by Cummins); and
(c)
by no later than 12:00 midnight, New York City time, on the second New York Stock Exchange trading day after the date of execution of such Notice of Guaranteed Delivery, the Exchange Agent must receive (A)(1) share certificates representing all validly tendered shares of Cummins Common Stock (other than Direct Registration Shares), in proper form for transfer or (2) with respect to shares delivered by book-entry transfer through DTC, a DTC Confirmation, (B) a letter of transmittal for shares of Cummins Common Stock, properly completed and duly executed (including any signature guarantees that may be required) or, in the case of shares delivered by book-entry transfer through DTC, an agent’s message and (C) any other required documents, whether required by the Letter of Transmittal or otherwise.
Registered shareholders (including any participant in DTC whose name appears on a security position listing of DTC as the owner of shares of Cummins Common Stock) may mail the Notice of Guaranteed Delivery to the Exchange Agent. If you hold shares of Cummins Common Stock through a broker, dealer, commercial bank, trust company, custodian or similar institution, that institution must submit any Notice of Guaranteed Delivery on your behalf. You must, in all cases, include a Medallion guarantee by an eligible institution in the form set forth in the Notice of Guaranteed Delivery.
5. Partial Tenders (Applicable Only to Persons Tendering Certificated Shares). If you are tendering fewer than all of the shares of Cummins Common Stock evidenced by any share certificate you
deliver to the Exchange Agent, you must check the applicable box and fill in the number of shares that you are tendering in the space provided on the second page of the Letter of Transmittal. In such cases, promptly after the expiration of the Exchange Offer, the Exchange Agent will credit the remainder of the shares of Cummins Common Stock that were evidenced by the certificate(s) but not tendered, to a Direct Registration Share account in the name of the registered holder(s) maintained by Cummins’ transfer agent, unless otherwise provided below in Instruction 8 hereto. Unless you indicate otherwise, all of the shares of Cummins Common Stock represented by share certificates delivered to the Exchange Agent will be deemed to have been tendered. No share certificates are expected to be delivered to you, including in respect of any shares delivered to the Exchange Agent that were previously in certificated form.
6. Inadequate Space. If the space provided in the Letter of Transmittal is inadequate, the certificate numbers and/or the number of shares of Cummins Common Stock and any other required information should be listed on a separate schedule and attached to the Letter of Transmittal. Each page of such schedule should be separately signed in the same manner as the Letter of Transmittal is signed.
7. Odd-Lot Shares. Shareholders who directly or beneficially own fewer than 100 shares of Cummins Common Stock who wish to tender all of their shares of Cummins Common Stock will receive preferential treatment if the Exchange Offer is oversubscribed, in that all such shares of Cummins Common Stock tendered will be accepted for exchange and will not be subject to proration. Direct or beneficial holders of more than 100 shares of Cummins Common Stock, and those who own fewer than 100 shares of Cummins Common Stock but do not tender all of their shares, will be subject to proration. In addition, shares held on behalf of participants in the Cummins Retirement and Savings Plan and the Cummins Retirement and Savings Plan for Certain Collectively Bargained Employees (each of which holds more than 100 shares of Cummins Common Stock) will be subject to proration.
8. Special Issuance and Delivery Instructions. If (i) a check for cash in lieu of fractional shares of Atmus Common Stock or shares of Atmus Common Stock are to be issued in the name of, and/or shares of Cummins Common Stock not tendered or not accepted for exchange are to be issued or returned to, a person other than the signer(s) of the Letter of Transmittal; or (ii) a check is to be mailed to a person other than the signer(s) of the Letter of Transmittal or to an address other than that shown in the box on the first page of the Letter of Transmittal, then the appropriate instructions in the “Special Transfer Instructions” and “Special Delivery Instructions,” as applicable, enclosed with the Letter of Transmittal should be completed. If you intend to complete the “Special Transfer Instructions” or the “Special Delivery Instructions” pursuant to the preceding sentence, a signature guarantee will be required and you must complete and return the Letter of Transmittal to the Exchange Agent by mail. In the case of payment to or issuance in the name of a person other than the registered holder, satisfactory evidence of the payment of transfer taxes or exemption therefrom must be satisfied. If no instructions are given, shares of Cummins Common Stock not tendered or not accepted in the Exchange Offer and/or shares of Atmus Common Stock will be credited in book-entry form in a book-entry share account, in the name of the registered holder maintained by Cummins’ transfer agent.
With respect to any shares tendered through DTC, a Cummins shareholder may request that shares not exchanged be credited to a different account maintained at DTC by providing the appropriate instructions pursuant to DTC’s applicable procedures. If no such instructions are given, all such shares not accepted will be returned by crediting the same account at DTC as the account from which such shares were delivered.
Physical certificates representing shares of Atmus Common Stock will not be issued pursuant to the Exchange Offer. Instead, the Exchange Agent will cause shares of Atmus Common Stock to be credited in book-entry form to direct registered accounts maintained by Atmus’ transfer agent
for the benefit of the respective holders (or, in the case of shares tendered through DTC, to the account of DTC so that DTC can credit the relevant DTC participant and such participant can credit its respective account holders). Promptly following the crediting of shares to your respective direct registered account, you will receive a statement from Atmus’ transfer agent evidencing your holdings, as well as general information on the book-entry form of ownership.
9. Requests for Assistance or Additional Copies. You may direct any questions or requests for assistance to the Information Agent at its telephone number and address set forth on the first page of this Instruction Booklet, or to your broker, dealer, commercial bank, trust company, custodian or similar institution. You may obtain additional copies of the Prospectus, the Letter of Transmittal, this Instruction Booklet, the Notice of Guaranteed Delivery, the form of Notice of Withdrawal and other Exchange Offer materials from the Information Agent at Cummins’ expense.
10. Backup Withholding. In order to avoid U.S. federal backup withholding (currently at a rate of 24%) with respect to cash received in exchange for fractional shares pursuant to the Exchange Offer, each holder submitting shares of Cummins Common Stock in the Exchange Offer, or such holder’s assignee (in either case, the “Payee”), must provide the Exchange Agent with the Payee’s correct Taxpayer Identification Number (“TIN”), generally the holder’s social security or federal employer identification number, on the Form W-9 is provided in the Letter of Transmittal or, alternatively, must establish another basis for exemption from backup withholding. A Payee must cross out item (2) under Part II (Certification) of the Form W-9 if such Payee has been notified by the Internal Revenue Service (the “IRS”) that such Payee is currently subject to backup withholding because of underreporting interest or dividends on such Payee’s tax return. In addition to potential penalties, failure to provide the correct information on the Form W-9 may subject the Payee to 24% U.S. federal backup withholding on any cash payments made to such Payee pursuant to the Exchange Offer. If the Payee has not been issued a TIN and has applied for one or intends to apply for one in the near future, such Payee should write “Applied For” in the space for the TIN and sign and date the Form W-9. If “Applied For” is written in the space for the TIN and the Exchange Agent is not provided with a TIN by the time of payment, the Exchange Agent will withhold 24% from any cash payments made to such Payee. A Payee that is not a U.S. person, as defined under the Internal Revenue Code of 1986, as amended (the “Code”), and applicable Treasury Regulations, may qualify as an exempt recipient by submitting to the Exchange Agent a properly completed Form W-8BEN, W-8BEN-E, Form W-8ECI, Form W-8EXP or Form W-8IMY, as applicable (which can be obtained from the IRS website http://www.irs.gov or by contacting the Exchange Agent) signed under penalty of perjury, attesting to that Payee’s exempt status. Please see “Important U.S. Federal Tax Information” below. Please see “Important U.S. Tax Information” below for more information.
11. Lost, Stolen, Mutilated or Destroyed Certificates. If any certificate(s) representing your shares of Cummins Common Stock have been lost, stolen, mutilated or destroyed, and you wish to tender these shares, you will need to contact Broadridge Financial Solutions, LLC., the transfer agent for Cummins, at (844) 973-0592 for instructions to obtain an Affidavit of Loss. The executed Affidavit of Loss will then be required to be submitted, together with the completed Letter of Transmittal, in order to tender your shares of Cummins Common Stock. In certain circumstances, you may be required to pay a fee in connection with obtaining the Affidavit of Loss. In addition, a bond may be required to be posted by you to secure against the risk the certificates may be subsequently re-circulated. You are urged to contact Broadridge Financial Solutions, LLC. immediately in order to receive further instructions, to permit timely processing of this documentation and for a determination as to whether you will need to pay a fee or post a bond.
12. Withdrawal. You may withdraw your previously tendered shares of Cummins Common Stock at any time before 12:00 midnight, New York City time, at the end of the day on the expiration date of the Exchange Offer and, unless Cummins has previously accepted them pursuant to the
Exchange Offer, such shares may also be withdrawn at any time after the expiration 40 business days from the commencement of the Exchange Offer. Once Cummins accepts shares of Cummins Common Stock pursuant to the Exchange Offer, any tendering Cummins shareholders’ tender is irrevocable. In order to withdraw your shares, you may provide either a written Notice of Withdrawal or an email transmission Notice of Withdrawal to the Exchange Agent, at one of its addresses or its email address, respectively, set forth on the back cover of the Prospectus. The Notice of Withdrawal must include the name of the person who tendered the shares of Cummins Common Stock, the number of shares to be withdrawn and, if different from that of the person who tendered those shares, the name of the registered holder of such shares. Cummins has provided to registered holders a form of Notice of Withdrawal, which they may use to withdraw their shares. You may obtain additional forms of Notices of Withdrawal from the Information Agent.
If certificates have been delivered to the Exchange Agent, the name of the registered holder thereof and the serial numbers of the particular certificates evidencing such shares intended to be withdrawn must also be furnished to the Exchange Agent, as stated above, in order for you to receive certificates in return for any withdrawn shares.
If shares have been tendered pursuant to the procedures for book-entry tender through DTC, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn shares and must otherwise comply with DTC’s procedures.
If you hold your shares through a broker, dealer, commercial bank, trust company, custodian or similar institution, you should consult that institution on the procedures you must comply with and the time by which such procedures must be completed in order for that institution to provide either a written Notice of Withdrawal or an email transmission Notice of Withdrawal to the Exchange Agent on your behalf before 12:00 midnight, New York City time, at the end of the day on the expiration date of the Exchange Offer. If you hold your shares through such an institution, that institution must deliver the Notice of Withdrawal with respect to any shares you wish to withdraw. In such a case, as a beneficial owner and not a registered shareholder, you will not be able to provide a Notice of Withdrawal for such shares directly to the Exchange Agent.
Any shares of Cummins Common Stock validly withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer.
However, you may re-tender withdrawn shares of Cummins Common Stock by following one of the procedures described in the Prospectus under “ The Exchange Offer — Procedures for Tendering” at any time prior to the expiration of the Exchange Offer.
Withdrawing Your Shares After the Final Exchange Ratio Has Been Determined. The final exchange ratio will be available by 5:30 p.m., New York City time, the second trading day immediately preceding the expiration date of the Exchange Offer at www.okapivote.com/CumminsAtmusExchange and from the Information Agent at +1-877-279-2311 (in the U.S., including Puerto Rico, and Canada) or +1-917-484-4425 (all other areas). If you are a registered shareholder of Cummins Common Stock (which will include persons holding certificated shares or Direct Registration Shares) and you wish to withdraw your shares after the final exchange ratio has been determined, then you may deliver either a written Notice of Withdrawal to the Exchange Agent in the form of the Notice of Withdrawal prior to 12:00 midnight, New York City time, at the end of the day on the expiration date of the Exchange Offer. Medallion guarantees will not be required for such withdrawal notices. If you hold Cummins Common Stock through a broker, dealer, commercial bank, trust company, custodian or similar institution, any Notice of Withdrawal must be delivered by that institution on your behalf.
Except as otherwise provided above, any tender made under the Exchange Offer is irrevocable.
13. Waiver of Conditions. Cummins reserves the absolute right, subject to applicable law, to waive any of the specified conditions, in whole or in part, to the Exchange Offer at any time, other than the conditions relating to the absence of an injunction and the effectiveness of the registration statement for Atmus Common Stock to be distributed in the Exchange Offer.
14. Irregularities. Cummins reserves the absolute right to reject any and all tenders of shares of Cummins Common Stock that it determines are not in proper form or the acceptance of or exchange for which may, in the opinion of its counsel, be unlawful. Cummins also reserves the absolute right to waive any defect or irregularity in the tender of any shares of Cummins Common Stock. No tender of shares of Cummins Common Stock is valid until all defects and irregularities in tenders of such shares have been cured or waived. None of Cummins, Atmus, the dealer managers, the Exchange Agent, the Information Agent or any other person, nor any of their directors or officers, is or will be under any duty to give any notification of any defects or irregularities in the tender of Cummins Common Stock and none of them will incur any liability for failure to give any such notification.
Cummins will make all determinations regarding the validity, form, eligibility (including time of receipt) and acceptance for exchange of any tender of shares of Cummins Common Stock and any notice of withdrawal in its sole discretion. Cummins’ interpretations of the terms and conditions of this Exchange Offer (including the Letter of Transmittal and the instructions contained in this Instructional Booklet) may be challenged in a court of competent jurisdiction.
IMPORTANT U.S. FEDERAL TAX INFORMATION
In order to avoid U.S. federal backup withholding, each Payee is required to provide its correct TIN on the Form W-9 provided in the Letter of Transmittal, and to certify under penalties of perjury that such number is correct, or otherwise establish a basis for exemption from backup withholding. For instructions as to the proper TIN to be provided, see the instructions to the Form W-9 (the “Instructions”) included in the Letter of Transmittal. If the Payee does not provide its correct TIN or establish another basis for exemption from backup withholding, such Payee may be subject to backup withholding in an amount equal to 24% of any cash payment made to the holder with respect to Cummins Common Stock tendered in connection with the Exchange Offer and a penalty imposed by the IRS. Backup withholding is not an additional tax. Rather, any amount of tax withheld will be credited against the tax liability of the person subject to the withholding. If backup withholding results in an overpayment of taxes, a refund may be obtained from the IRS.
To prevent backup withholding, each Payee that is a U.S. person (including a U.S. resident alien), as defined under the Code and applicable Treasury Regulations, must provide (i) its correct TIN by completing the Form W-9 included in the Letter of Transmittal, certifying, under penalties of perjury, (x) that the TIN provided is correct, (y) that the Payee is not subject to backup withholding because (A) the Payee is exempt from backup withholding, (B) the Payee has not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (C) the IRS has notified the Payee that it is no longer subject to backup withholding, and (z) that such Payee is a U.S. person (including a U.S. resident alien), or (ii) if applicable, another basis for exemption from backup withholding. A holder must cross out item (2) under Part II (Certification) of the Form W-9 if such holder has been notified by the IRS that such holder is currently subject to backup withholding because of underreporting interest or dividends on such holder’s tax return. Each Payee is urged to consult his, her or its tax advisor for more information.
If the Payee does not have a TIN, such Payee should consult the Instructions for guidance on applying for a TIN, write “Applied For” in the space for the TIN and sign and date the Form W-9. If “Applied For” is written in the space for the TIN, 24% of any cash payment made to the
holder with respect to Cummins Common Stock tendered in connection with the Exchange Offer will be withheld unless a TIN is provided by the time payment is made.
If the shares of Cummins Common Stock are in more than one name or are not in the name of the actual owner, please consult the Instructions for information on which TIN to report.
Certain Payees (including, among others, corporations and certain foreign persons) are not subject to these backup withholding requirements. Exempt U.S. holders should indicate their exempt status on Form W-9. A holder that exchanges shares of Cummins Common Stock in the Exchange Offer that is not a U.S. person may qualify as an exempt recipient by submitting to the Exchange Agent a properly completed IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8ECI, IRS Form W-8EXP or IRS Form W-8IMY, as applicable, signed under penalties of perjury, attesting to such Payee’s exempt status. Non-U.S. persons may obtain the appropriate IRS Form W-8 from the IRS website (http://www.irs.gov) or by contacting the Exchange Agent. Each Payee that is not a U.S. person, as defined under the Code and applicable Treasury Regulations, is urged to consult his, her or its tax advisor for more information.
FAILURE TO COMPLETE THE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL OR AN APPROPRIATE FORM W-8 MAY RESULT IN WITHHOLDING ON ANY CASH PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
Exhibit 99.3
Notice of Guaranteed Delivery
for Shares of Common Stock of
CUMMINS INC.
Offer to Exchange
up to 67,054,726 Shares of Common Stock of
ATMUS FILTRATION TECHNOLOGIES, INC.
which are owned by Cummins Inc.
for Outstanding Shares of Common Stock of
for Outstanding Shares of Common Stock of
CUMMINS INC.
(Not to be used for signature guarantees)
| | | THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, AT THE END OF THE DAY ON MARCH 13, 2024, UNLESS THE OFFER IS EXTENDED OR TERMINATED. SUCH DATE, OR, IF THE OFFER IS EXTENDED, THE DATE UNTIL WHICH THE OFFER IS EXTENDED, IS REFERRED TO IN THIS DOCUMENT AS THE “EXPIRATION DATE.” SHARES OF CUMMINS COMMON STOCK VALIDLY TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION OF THE EXCHANGE OFFER. | | |
This Notice of Guaranteed Delivery, or a form substantially equivalent hereto, must be used to participate in the Exchange Offer (as set forth in the prospectus dated February 14, 2024 (the “Prospectus”) and the related Letter of Transmittal (the “Letter of Transmittal”)) in the following circumstances:
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if certificates representing shares of common stock of Cummins Inc., par value $2.50 per share (“Cummins Common Stock”), are not immediately available;
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if the procedure for book-entry transfer cannot be completed on a timely basis; or
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if time will not permit all required documents to reach Broadridge Corporate Issuer Solutions, LLC. (the “Exchange Agent”) on or before the expiration date of the Exchange Offer.
This Notice of Guaranteed Delivery may be mailed to the Exchange Agent as described in the Prospectus and must include a guarantee by an Eligible Institution (as defined in the Instruction Booklet to the Letter of Transmittal). Additional information can be found in the section entitled “The Exchange Offer — Procedures for Tendering” in the Prospectus. Only registered shareholders (including any participant in The Depository Trust Company (“DTC”) whose name appears on a security position listing as the owner of shares of Cummins Common Stock) may submit this Notice of Guaranteed Delivery. Capitalized terms used but not defined herein shall have the same meaning given to them in the Prospectus.
The Information Agent for the Exchange Offer is:
Okapi Partners LLC
1212 Avenue of the Americas, 17th Floor
New York, NY 10036
In the U.S., including Puerto Rico, and Canada, please call (toll-free): +1-877-279-2311
All other areas, please call: +1-917-484-4425
Email: info@okapipartners.com
1212 Avenue of the Americas, 17th Floor
New York, NY 10036
In the U.S., including Puerto Rico, and Canada, please call (toll-free): +1-877-279-2311
All other areas, please call: +1-917-484-4425
Email: info@okapipartners.com
The Exchange Agent for the Exchange Offer is:
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Broadridge, Inc.
Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
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Broadridge, Inc.
Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 |
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DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN ONE 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.
BY EXECUTING THIS NOTICE OF GUARANTEED DELIVERY, YOU ARE GUARANTEEING THAT (1)(A) SHARE CERTIFICATES REPRESENTING ALL VALIDLY TENDERED SHARES OF CUMMINS COMMON STOCK (OTHER THAN SHARES OF CUMMINS COMMON STOCK IN UNCERTIFICATED FORM REGISTERED DIRECTLY IN CUMMINS’ SHARE REGISTER) LISTED ON THIS NOTICE, IN PROPER FORM FOR TRANSFER OR (B) WITH RESPECT TO SHARES DELIVERED BY BOOK-ENTRY TRANSFER THROUGH DTC, CONFIRMATION OF A BOOK-ENTRY TRANSFER OF THOSE SHARES OF CUMMINS COMMON STOCK IN THE EXCHANGE AGENT’S ACCOUNT AT DTC, (2) A LETTER OF TRANSMITTAL FOR SHARES OF CUMMINS COMMON STOCK, PROPERLY COMPLETED AND DULY EXECUTED (INCLUDING ANY SIGNATURE GUARANTEES THAT MAY BE REQUIRED) OR, IN THE CASE OF SHARES DELIVERED BY BOOK-ENTRY TRANSFER THROUGH DTC, AN AGENT’S MESSAGE (AS DEFINED IN THE PROSPECTUS) AND (3) ANY OTHER REQUIRED DOCUMENTS, WILL EACH IN FACT BE RECEIVED BY THE EXCHANGE AGENT NO LATER THAN 5:00 P.M., NEW YORK CITY TIME, ON THE SECOND NEW YORK STOCK EXCHANGE TRADING DAY AFTER THE DATE OF EXECUTION OF THIS NOTICE OF GUARANTEED DELIVERY. FAILURE TO COMPLETE THE ABOVE ACTIONS BY SUCH TIME COULD RESULT IN FINANCIAL LOSS TO THE ELIGIBLE INSTITUTION MAKING THIS GUARANTEE.
THE GUARANTEE INCLUDED HEREIN MUST BE COMPLETED.
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Ladies and Gentlemen:
The undersigned hereby tenders to Cummins the number of shares of common stock of Cummins, par value $2.50 per share (“Cummins Common Stock”), set forth below, on the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, as may be amended from time to time, which together constitute the offer by Cummins to exchange up to an aggregate of 67,054,726 shares of common stock of Atmus Filtration Technologies, Inc., par value $0.0001 per share, which are owned by Cummins for outstanding shares of Cummins Common Stock.
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Number of shares of Cummins Common Stock to be tendered:
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Account Number (if known):
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Signature(s) of Registered Holder(s)
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Please type or print name(s) of Registered Holder(s) here:
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Please type or print address:
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Area Code and Telephone Number:
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Tax Identification or Social Security Number:
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(If you do not have a Tax Identification or Social Security Number, please enter four zeros (0000).)
Dated: , 2024
ODD-LOT SHARES
Shareholders who directly or beneficially own fewer than 100 shares of Cummins Common Stock (“Odd-Lot Shares”) who wish to tender all of their shares of Cummins Common Stock will receive preferential treatment if the Exchange Offer is oversubscribed, in that all such shares of Cummins Common Stock validly tendered will be accepted for exchange and will not be subject to proration. Direct or beneficial holders of more than 100 shares of Cummins Common Stock, and those who own fewer than 100 shares of Cummins Common Stock but do not tender all of their shares, will be subject to proration. Shares held on behalf of participants in the RSP (as defined in the Prospectus) (each of which holds more than 100 shares of Cummins Common Stock) will be subject to proration, even if such participants beneficially own fewer than 100 shares.
This section is to be completed ONLY if shares of Cummins Common Stock are being tendered by or on behalf of a person owning directly or beneficially fewer than 100 shares of Cummins Common Stock who wishes to tender all such shares. The undersigned either (check one box):
☐ is the direct or beneficial owner of an aggregate of fewer than 100 shares of Cummins Common Stock, all of which are being tendered;
or
☐ is a broker, dealer, commercial bank, trust company, custodian or other nominee that (a) is tendering for the beneficial owner(s), shares with respect to which it is the record holder and (b) believes, based upon representations made to it by each such beneficial owner, that each such person is the direct or beneficial owner of an aggregate of fewer than 100 shares of Cummins Common Stock and is tendering all of those shares.
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GUARANTEED DELIVERY
(Not to be used for signature guarantee)
(Not to be used for signature guarantee)
| | | The undersigned, a participant in the Securities Transfer Agents Medallion Program or an eligible guarantor institution (as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (each of the foregoing, an “Eligible Institution”) (i) represents and guarantees that the above-named person(s) hold(s) a net long position in the shares of Cummins Common Stock tendered hereby as required under Rule 14e-4 under the Exchange Act; (ii) [Reserved]; and (iii) guarantees to deliver to the Exchange Agent by no later than 5:00 p.m., New York City time, on the second New York Stock Exchange trading day after the date hereof, (1)(A) share certificates representing all validly tendered shares of Cummins Common Stock (other than shares of Cummins Common Stock in uncertificated form registered directly in Cummins’ share register) tendered hereby, in proper form for transfer or (B) with respect to shares delivered by book-entry transfer through DTC, confirmation of a book-entry transfer of those shares of Cummins Common Stock in the Exchange Agent’s account at DTC, (2) a Letter of Transmittal for shares of Cummins Common Stock, properly completed and duly executed (including any signature guarantees that may be required) or, in the case of shares delivered by book-entry transfer through DTC, an agent’s message (as defined in the Prospectus), and (3) any other required documents. | | |
The Eligible Institution that completes this form must communicate the guarantee to the Exchange Agent and must deliver the Letter of Transmittal and certificates for shares of Cummins Common Stock, or confirmation of book-entry transfer and an agent’s message, and any other required documents to the Exchange Agent within the time period set forth herein. Failure to do so could result in a financial loss to such Eligible Institution.
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Name of Firm:
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Area Code and Telephone No.(s):
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Authorized Signature:
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Dated: , 2024
DO NOT SEND CERTIFICATE(S) OR ANY OTHER REQUIRED DOCUMENTS WITH THIS NOTICE OF GUARANTEED DELIVERY. CERTIFICATES, IF ANY, SHOULD BE SENT TO THE EXCHANGE AGENT WITH YOUR PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL (UNLESS A CONFIRMATION OF BOOK-ENTRY TRANSFER IS USED FOR SHARES TENDERED THROUGH DTC).