Attached files
| file | filename |
|---|---|
| EX-2.1 - AGREEMENT AND PLAN OF MERGER - AZZ INC | ex21merger.htm |
| EX-99.1 - NGA ACQUISITION PR - AZZ INC | ex991pressrelease.htm |
| EX-2.2 - STOCKHOLDER AGREEMENT - AZZ INC | ex22stockagreement.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported):
March
31, 2010
AZZ incorporated
(Exact
name of registrant as specified in its charter)
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TEXAS
(State
or Other Jurisdiction of Incorporation or Organization)
|
1-12777
Commission
File No.
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75-0948250
(I.R.S.
Employer Identification Number)
|
|
One
Museum Place, Suite 500
3100
West Seventh Street
Fort
Worth, TX 76107
(Address
of principal executive offices, including zip code)
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Registrant’s
Telephone Number, including Area
Code:
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(817)
810-0095
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(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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| X |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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|
¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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SECTION
1 – REGISTRANT’S BUSINESS AND OEPRATIONS
Item
1.01. Entry Into a Material Definitive Agreement.
Merger
Agreement
On March 31, 2010, AZZ incorporated, a
Texas corporation (“AZZ”), entered into an Agreement and Plan of Merger (the
“Merger Agreement”) by and among AZZ, Big Kettle Merger Sub, Inc., a Delaware
corporation and an indirect wholly-owned subsidiary of AZZ (“Purchaser”), and
North American Galvanizing & Coatings, Inc., a Delaware corporation (“NGA”),
pursuant to which AZZ will acquire NGA, a leading provider of corrosion
protection for iron and steel components fabricated by its
customers.
Pursuant to the Merger Agreement, and
subject to the terms and conditions thereof, Purchaser will commence a cash
tender offer (the “Offer”) to purchase all of the outstanding shares of common
stock, par value $0.10 per share, of NGA (the “NGA Common Stock”), at a purchase
price of $7.50 per share to be paid in cash, without interest thereon (less any
applicable withholding taxes) (as such may be increased pursuant to the Merger
Agreement, the “Offer Price”). Upon successful completion of the Offer, and
subject to the terms and conditions of the Merger Agreement, Purchaser will be
merged with and into NGA (the “Merger”) and NGA will survive the Merger as a
wholly owned subsidiary of AZZ.
Purchaser has agreed to commence the
Offer promptly after April 30, 2010, but no later than May 7, 2010,
and the Offer shall remain open until the 20th
business day from and including such commencement date unless extended in
accordance with the terms of the Merger Agreement and applicable law. The
obligations of AZZ and Purchaser to consummate the Offer are subject to
customary conditions, including that (i) there is validly tendered (and not
withdrawn) at least two thirds (⅔) of the issued and outstanding NGA Common
Stock (determined on a fully diluted basis and including NGA Common Stock
issuable upon exercise of options, shares of NGA Common Stock held in NGA's
Director Stock Unit Program and restricted shares of NGA Common Stock, in each
case whose holders have executed the Stockholders Agreement (as defined below)),
(ii) the waiting period under the Hart-Scott Rodino Antitrust Improvements Act
of 1976, as amended, has expired and (iii) the other conditions set forth in the
Merger Agreement have been satisfied or waived.
Pursuant to the Merger Agreement, NGA
has granted Purchaser, subject to certain conditions and limitations (including
but not limited to Purchaser owning at least 80% of the NGA Common Stock
outstanding immediately following the termination of the Offer), an irrevocable
option to purchase, following completion of the Offer and at the Offer Price, a
number of authorized but unissued shares of the NGA Common Stock that, when
added to the number of shares of NGA Common Stock owned by AZZ or Purchaser at
the time of exercise of such option and the shares of NGA Common Stock otherwise
deliverable pursuant to the Stockholders Agreement, constitutes one share more
than 90% of the then issued and outstanding shares of NGA Common Stock, on a
fully diluted basis (the “Top-Up Option”). The Top-Up Option is intended to
facilitate the completion of the Merger by allowing Purchaser to effect the
Merger pursuant to Delaware’s “short form” merger statute. In the
event that Purchaser consummates the Offer and does not own at least 80% of the
NGA Common Stock outstanding immediately following the termination of the Offer,
Purchaser shall cause NGA to call a special meeting of the stockholders of NGA
to allow for a stockholder vote upon the Merger. In such case, the approval of
the Merger at a meeting of the stockholders of NGA would be assured because of
Purchaser’s ownership of at least two thirds (⅔) of the shares of NGA Common
Stock following completion of the Offer.
At the effective time of the Merger
(the “Effective Time”), the certificate of incorporation and bylaws of NGA, as
in effect immediately prior to the Effective Time, shall be amended and restated
as of the Effective to Time to be in the form of (except with respect to the
name of NGA) the certificate of incorporation and bylaws, respectively, of
Purchaser.
AZZ, Purchaser and NGA have made
customary representations and warranties in the Merger Agreement and agreed to
certain customary covenants, including covenants regarding operation of the
business of NGA and its subsidiaries prior to closing of the Offer. The Merger
Agreement permits NGA to solicit alternative acquisition proposals from third
parties until April 30, 2010. In addition, NGA may, at any time, upon the terms
and subject to the conditions of the Merger Agreement, respond to unsolicited
proposals, that are, or could reasonably be expected to result in, a proposal
financially superior to the transactions contemplated by the Merger Agreement.
In the case of such a proposal, NGA may not terminate the Merger Agreement if
AZZ makes a proposal to adjust the terms and conditions of the Merger Agreement
so that such terms and conditions would be at least as favorable as such
proposal.
2
The Merger Agreement further provides
that, upon acceptance for payment of the NGA Common Stock pursuant to the Offer,
AZZ shall be entitled to designate a number of directors to the Board of
Directors of NGA (the “Board”) and the Board of Directors of any direct or
indirect subsidiary of NGA in proportion with the percentage of NGA Common Stock
Purchaser owns following the Offer. Between such time and the Effective Time,
the Board will have at least two directors who are directors of NGA on the date
of the Merger Agreement, who are not officers of NGA and who are independent
directors.
The Merger Agreement also includes
customary termination provisions for AZZ and NGA and provides that, in
connection with the termination of the Merger Agreement under specified
circumstances, NGA will be required to pay a termination fee of $3
million (inclusive of expenses incurred by AZZ and Purchaser), except that the
termination fee will be $2 million (inclusive of expenses incurred by AZZ and
Purchaser) in the event the Merger Agreement is terminated by NGA in order to
accept a superior proposal from a third party who has been identified in writing
to AZZ (to the extent that AZZ elects not to adjust the terms and conditions of
the Merger Agreement in response to such superior proposal, as described
above).
The foregoing description of the Merger
Agreement is only a summary, does not purport to be complete and is qualified in
its entirety by reference to the Merger Agreement, a copy of which is filed as
Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by
reference.
Additional
Agreements
As inducement to AZZ to enter into the
Merger Agreement, the directors of NGA (the “Tendering Stockholders”)
owning approximately 19% of NGA’s outstanding Common Stock (without giving
effect to shares of NGA Common Stock issuable to such individuals upon vesting
of options upon a change of control or to shares held by NGA in trust under the
Director Stock Unit Plan) have agreed to tender their shares of NGA Common Stock
in connection with the Offer, to provide Purchaser with an option to purchase
any shares of NGA Common Stock held by such individuals that are not tendered in
the Offer and to vote in favor of the Merger pursuant to the Stockholders
Agreement, dated March 31, 2010, by and among AZZ, Purchaser and the Tendering
Stockholders identified therein (the “Stockholders Agreement”). In addition,
such Tendering Stockholders have agreed, subject to certain exceptions, to
refrain from disposing of their shares of NGA Common Stock and soliciting
alternative acquisition proposals to the Merger.
The foregoing description of the
Stockholders Agreement is only a summary, does not purport to be complete and is
qualified in its entirety by reference to the Stockholders Agreement, a form of
which is filed as Exhibit 2.2 to this Form 8-K and incorporated herein by this
reference.
Cautionary Note Regarding
the Merger Agreement
The Merger Agreement has been included
to provide investors with information regarding its terms. It is not intended to
provide any other factual information about NGA, AZZ or Purchaser. In
particular, the representations and warranties contained in the Merger Agreement
were made only for the purposes of the Merger Agreement as of the specific dates
therein and were solely for the benefit of the parties to the Merger
Agreement.
The representations and warranties
contained in the Merger Agreement may be subject to limitations agreed upon by
the parties to the Merger Agreement and are qualified by information in
confidential disclosure schedules provided by NGA in connection with the signing
of the Merger Agreement. These confidential disclosure schedules contain
information that modifies, qualifies and creates exceptions to the
representations and warranties set forth in the Merger Agreement. Moreover,
certain representations and warranties in the Merger Agreement may be subject to
a standard of materiality provided for in the Merger Agreement and have been
used for the purpose of allocating risk among NGA, AZZ and Purchaser, rather
than establishing matters of fact. Information concerning the subject matter of
the representations and warranties may also change after the date of the Merger
Agreement, which subsequent information may not be fully disclosed in the
parties’ public disclosures. Accordingly, the representations and warranties in
the Merger Agreement may not constitute the actual state of facts about NGA, AZZ
or Purchaser. Investors are not third party beneficiaries under the Merger
Agreement and should not rely on the representations, warranties and covenants
or any descriptions thereof as characterizations of the actual state of facts or
conditions of NGA, AZZ or Purchaser, or any of their respective subsidiaries or
affiliates.
3
SECTION
7 – REGULATION FD
Item
7.01. Regulation FD Disclosure.
On April 1, 2010, AZZ issued a press
release, a copy of which is filed as Exhibit 99.1 hereto and incorporated by
reference herein, announcing the execution of the Merger
Agreement.
SECTION
9 – FINANCIAL STATEMENTS AND EXHIBITS
Item
9.01. Exhibits.
The
following exhibits are filed as part of this report.
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Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Merger, dated March 31, 2010, by and among AZZ incorporated,
Big Kettle Merger Sub, Inc. and North American Galvanizing & Coatings,
Inc.
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|
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2.2
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Stockholders
Agreement, dated March 31, 2010, by and among AZZ incorporated, Big Kettle
Merger Sub, Inc. and the stockholders of North American Galvanizing &
Coatings, Inc. identified therein.
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99.1
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Press
Release issued by AZZ incorporated dated April 1,
2010.
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ADDITIONAL
INFORMATION
The tender offer described in this
Current Report on Form 8-K and the exhibits attached hereto has not yet
commenced. The description contained herein is for informational purposes only
and is not an offer to buy or the solicitation of an offer to sell any
securities. The solicitation and the offer to buy shares of NGA common stock
will be made only pursuant to a tender offer statement on Schedule TO,
including an offer to purchase and other related materials, which Purchaser
intends to file with the Securities and Exchange Commission. In addition, NGA
intends to file with the Securities and Exchange Commission a
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the
tender offer. Once filed, investors and NGA stockholders will be able to obtain
free copies of these documents and other documents filed by NGA, AZZ and
Purchaser with the Securities and Exchange Commission at the website of the
Securities and Exchange Commission at www.sec.gov. In
addition, the tender offer statement on Schedule TO and related offering
materials may be obtained for free (when they become available) from AZZ. NGA
stockholders are advised to read these documents, any amendments to these
documents and any other documents relating to the tender offer that are filed
with the Securities and Exchange Commission carefully and in their entirety
prior to making any decisions with respect to the tender offer because they
contain important information, including the terms and conditions of the tender
offer.
4
FORWARD-LOOKING
STATEMENTS
Certain statements in this Current
Report on Form 8-K and the exhibits attached hereto about our expectations of
future events or results constitute forward-looking statements for purposes of
the safe harbor provisions of The Private Securities Litigation Reform Act of
1995. You can identify forward-looking statements by terminology such as, “may,”
“should,” “expects, “ “plans,” “anticipates,” “believes,” “estimates,”
“predicts,” “potential,” “continue,” or the negative of these terms or other
comparable terminology. Such forward-looking statements are based on currently
available competitive, financial and economic data and management’s views and
assumptions regarding future events. Such forward-looking statements are
inherently uncertain, and investors must recognize that actual results may
differ from those expressed or implied in the forward-looking statements. In
addition, certain factors could affect the outcome of the matters described in
this Current Report on Form 8-K. These factors include, but are not limited to,
(1) the occurrence of any event, change or other circumstances that could give
rise to the termination of the Merger Agreement, (2) the outcome of any legal
proceedings that may be instituted against us or others following the
announcement of the Merger Agreement, (3) the inability to complete the Offer or
the Merger due to the failure to satisfy other conditions, (4) risks that the
proposed transaction disrupts current plans and operations, and (5) the costs,
fees and expenses related to the transaction. In addition, this release may
contain forward-looking statements that involve risks and uncertainties
including, but are not limited to, changes in customer demand and response to
products and services offered by AZZ or NGA, including demand by the electrical
power generation markets, electrical transmission and distribution markets, the
industrial markets, and the hot
dip galvanizing markets; prices and raw material cost, including zinc and
natural gas which are used in the hot dip galvanizing process; changes in the
economic conditions of the various markets that AZZ or NGA serve, foreign and
domestic, customer request delays of shipments, acquisition opportunities,
adequacy of financing, and availability of experienced management employees to
implement AZZ’s growth strategy. AZZ has provided additional information
regarding risks associated with the business in the AZZ’s Annual Report on Form
10-K for the fiscal year ended February 28, 2009 and other filings with the SEC,
available for viewing on AZZ’s website at www.azz.com and on the SEC’s website
at www.sec.gov. You are urged to consider these factors carefully in evaluating
the forward-looking statements herein and are cautioned not to place undue
reliance on such forward-looking statements, which are qualified in their
entirety by this cautionary statement. These statements are based on information
as of the date of this Current Report on Form 8-K and AZZ assumes no obligation
to update any forward-looking statements, whether as a result of new
information, future events, or otherwise.
5
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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AZZ
incorporated
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Date:
April 1, 2010
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By:
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/s/ Dana Perry
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Dana
Perry
Senior
Vice President Finance
Chief
Financial Officer
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6
EXHIBIT
INDEX
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Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Merger, dated March 31, 2010, by and among AZZ incorporated,
Big Kettle Merger Sub, Inc. and North American Galvanizing & Coatings,
Inc.
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2.2
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Stockholders
Agreement, dated March 31, 2010, by and among AZZ incorporated, Big Kettle
Merger Sub, Inc. and the stockholders of North American Galvanizing &
Coatings, Inc. identified therein.
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99.1
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Press
Release issued by AZZ incorporated dated April 1,
2010.
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7