Supplemental Disclosures to Definitive Proxy Statement
As previously disclosed, on November 7, 2020, Navistar International Corporation, a Delaware corporation (the “Company” or “Navistar”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with TRATON SE, a Societas Europaea (“Parent” or “TRATON”), and Dusk Inc., a Delaware corporation and a wholly owned indirect subsidiary of Parent (“Merger Sub”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company continuing as the surviving company in the Merger as a wholly owned indirect subsidiary of Parent.
On January 7, 2021 and February 18, 2021, three substantially similar complaints were filed against the Company and the members of the Company’s board of directors (the “Board”) in the United States District Court for the District of Delaware by purported stockholders of the Company, captioned Stein v. Navistar International Corporation, et al., Case No. 21-cv-00013 (D. Del.) (“Stein”), LaFrance v. Navistar International Corporation, et al., Case No. 21-cv-00016 (D. Del.) (“LaFrance”), and Williams v. Navistar International Corporation, et al., Case No. 21-cv-00225 (D. Del.) (“Williams”), respectively. On January 19, 2021, January 21, 2021, and February 11, 2021, substantially similar complaints were filed against the Company and the members of the Board in the United States District Court for the Southern District of New York, captioned Anderson v. Navistar International Corporation, et al., Case No. 21-cv-00453 (S.D.N.Y) (“Anderson”), Grinberger v. Navistar International Corporation, et al., Case No. 21-cv-00561 (S.D.N.Y) (“Grinberger”), Sheridan v. Navistar International Corporation, et al., Case No. 21-cv-01233 (S.D.N.Y) (“Sheridan”), and Arnold v. Navistar International Corporation, et al., Case No. 21-cv-01236 (S.D.N.Y) (“Arnold”), respectively. Anderson also names Parent and Merger Sub as defendants. On January 25, 2021, a substantially similar complaint was filed against the Company and the members of the Board in the United States District Court for the Eastern District of New York, captioned Walker v. Navistar International Corporation, et al., Case No. 21-cv-00398 (E.D.N.Y.) (“Walker”). On February 19, 2021, a substantially similar complaint was filed against the Company and the members of the Board in the United States District Court for the Eastern District of Pennsylvania, captioned Baker v. Navistar International Corporation, et al., Case No. 21-cv-00762 (E.D. Pa.) (“Baker”). The complaints allege that the Proxy Statement (defined below) and preliminary versions of the Proxy Statement filed with the SEC on December 22, 2020 and January 21, 2021, were materially incomplete and therefore misleading in certain respects. On January 20, 2021, a putative class action complaint was filed against the Company, the members of the Board, Parent and TRATON US, Inc. in the Circuit Court of DuPage County, Illinois, Chancery Division, captioned Drulias v. Clarke, et al., Case No. 2021-CH-000022 (Ill. DuPage Cty. Cir. Ct.) (“Drulias” and, together with Stein, LaFrance, Anderson, Grinberger, Walker, Sheridan, Arnold, Williams and Baker, the “Complaints”). Drulias alleges breaches of the fiduciary duties of due care, good faith, loyalty, fair dealing and full disclosure under Delaware law by the Company and the members of the Board, and alleges that Parent and TRATON US, Inc. aided and abetted such alleged breaches of fiduciary duties. On January 29, 2021, the Company filed the definitive proxy statement relating to the Merger (the “Proxy Statement”).
While the Company believes that the disclosures set forth in the Proxy Statement comply fully with applicable law, in order to moot the purported stockholders’ disclosure and breach of fiduciary duty claims in the Complaints, to avoid nuisance, cost and distraction, and to preclude any efforts to delay the closing of the Merger, the Company has determined to voluntarily supplement the Proxy Statement with the supplemental disclosures set forth below (the “Supplemental Disclosures”). Nothing in the Supplemental Disclosures shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, the Company specifically denies all allegations in the Complaints that any additional disclosure was or is required or that any fiduciary duty was or is breached. The Company believes the Complaints are without merit.
This supplemental information should be read in conjunction with the Proxy Statement, which should be read in its entirety. All page references are to pages in the Proxy Statement, and terms used below, unless otherwise defined, have the meanings set forth in the Proxy Statement. Underlined text shows text being added to a referenced disclosure in the Proxy Statement.
The following disclosure replaces the last paragraph under the heading “Background of the Merger” on page 58 of the Proxy Statement.
On February 14, 2017, during a joint meeting of the Board and the nominating and governance committee of the Board, the Board discussed, among other things, the formation of an ad hoc committee of the Board to (i) review, oversee, monitor and act as a liaison for the Strategic Alliance between the Company and TRATON and any other strategic alliance, collaboration or acquisition involving the Company and (ii) report its findings and make recommendations to the Board with respect thereto (the “Chairman’s Committee”). Following discussion, the Board approved resolutions establishing the Chairman’s Committee, and appointed Mr. Clarke, the Chairman of the Board, and Messrs. Mark H. Rachesky and Vincent Intrieri, each co-lead independent directors of the Board, as Vice Chairs of the Chairman’s Committee. The resolutions approved at the joint meeting do not provide specific authority with respect to approving any proposals regarding the Strategic Alliance or any other strategic alliance, collaboration or acquisition involving the Company.