Attached files
file | filename |
---|---|
EX-2.1 - EX-2.1 - AMERICAN COMMERCIAL LINES INC. | c60767exv2w1.htm |
EX-99.1 - EX-99.1 - AMERICAN COMMERCIAL LINES INC. | c60767exv99w1.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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): October 18, 2010
000-51562
Commission file number
Commission file number
AMERICAN COMMERCIAL LINES INC.
(Exact name of registrant as specified in its charter)
Delaware | 75-3177794 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
1701 E. Market Street, Jeffersonville, Indiana (Address of principal executive offices) |
47130 (Zip Code) |
(812) 288-0100
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
Former name or former address, if changed since last report: N/A
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:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
þ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT | ||||||||
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS | ||||||||
SIGNATURE | ||||||||
EXHIBIT INDEX | ||||||||
EX-2.1 | ||||||||
EX-99.1 |
Table of Contents
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On October 18, 2010, American Commercial Lines Inc., a Delaware corporation (the Company),
entered into an Agreement and Plan of Merger (the Merger Agreement) with Finn Holding
Corporation, a Delaware corporation (Parent), and Finn Merger Corporation, a Delaware corporation
and a wholly-owned subsidiary of Parent (Merger Sub). The Merger Agreement provides that, upon
the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will be
merged with and into the Company, with the Company continuing as the surviving corporation and a
wholly-owned subsidiary of Parent (the Merger). The Merger Agreement was negotiated on behalf of
the Company by and under the supervision of a special committee of independent directors of the
Company.
Pursuant to the terms of the Merger Agreement, each issued and outstanding share of Company common
stock, other than shares held by Company, Parent or Merger Sub, or held by GVI Holdings, Inc. and
certain of its Affiliates (GVI Stockholders), or by any stockholders who are entitled to, and who
properly exercise, appraisal rights under Delaware law, will be cancelled and extinguished and
automatically converted into the right to receive cash in an amount equal to $33.00, without
interest (the Per Share Merger Consideration). GVI Stockholders will receive $1.75 in cash less
than the Per Share Merger Consideration for each share of Company common stock they hold if the
transaction closes by December 31, 2010 and will receive the Per Share Merger Consideration if the
transaction closes thereafter.
Under the terms of the Merger Agreement, the Company will have a 40-day Go Shop Period under
which it is permitted to initiate, solicit and encourage alternative takeover proposals from third
parties and to provide information and engage in discussions with third parties regarding
alternative takeover proposals from third parties through 11:59 p.m., Eastern time on November 27,
2010 (the No-Shop Period Start Date). On the No-Shop Period Start Date the Company shall
terminate any negotiations or discussions with third parties except for any Excluded Party, which
is defined in the Merger Agreement as any third party that has made or delivered to the Company an
alternative written takeover proposal on or prior to the No-Shop Period Start Date and which the
Companys board of directors (the Board) shall have determined in good faith (after consultation
with its outside legal counsel and financial advisors) either constitutes a superior proposal or is
reasonably likely to lead to a superior proposal. Except with respect to Excluded Parties, at the
No-Shop Period Start Date, the Company is subject to customary no-shop restrictions on its
ability to solicit alternative takeover proposals from third parties and to provide information to
and engage in discussions with third parties regarding alternative takeover proposals. The
no-shop provision is subject to a customary fiduciary-out provision which provides that, prior
to the time stockholder approval is obtained, the Board may change its recommendation to the
Companys stockholders or terminate the Agreement and enter into a definitive agreement with
respect to a takeover proposal, if and only if, prior to taking such action, the Board has
determined in good faith that the alternative takeover proposal is a superior proposal. During the
Go Shop Period the Company will be required to pay a termination fee to Parent of $12 million if
the agreement is terminated for a superior proposal or certain other reasons; after that period the
termination fee is $14 million.
2
Table of Contents
The GVI Stockholders have concurrently entered into a Voting Agreement pursuant to which they have
agreed to vote shares owned by them representing, in the aggregate, 25.26% of the outstanding
shares of the Company in favor of the transaction under the circumstances set forth therein. The
Voting Agreement automatically terminates upon the termination of the Merger Agreement or the
occurrence of certain other events. In the event the Voting Agreement is terminated because the
Company has accepted a Superior Proposal, as defined in the Merger Agreement, the GVI Stockholders
have agreed to accept $1.75 less than other stockholders in consideration per share from the party
making the Superior Proposal if that transaction closes on or prior to December 31, 2010. The GVI
Stockholders have also granted an option to Parent to acquire the GVI Stockholders shares at that
same price between December 15 and December 31, 2010, provided that, if Parent exercises the option
and the Merger Agreement is subsequently terminated for a Superior Proposal, Parent has agreed to
both vote for such proposal and accept the same consideration that the GVI Stockholders would have
received in respect of those shares, subject to Parents obligation to share profits with the GVI
Stockholders from its subsequent disposition of those shares in certain circumstances.
Holders of vested and most unvested restricted stock units and employee stock options will receive
the value of those grants based on the Per Share Merger Consideration. With respect to senior
executives of the Company (Company internal employee level 16 and above), unvested employee
restricted stock units and options held by those executives will be assumed by Parent and converted
at the consummation of the merger into a restricted stock unit or option denominated in shares of
the common stock of Parent.
The Company has agreed, among other things and subject to certain exceptions as described in the
Merger Agreement, (i) to conduct its business in the ordinary and usual course of business and in a
manner consistent with past practice during the interim period between the execution of the Merger
Agreement and consummation of the Merger, (ii) not to take certain actions or engage in certain
transactions during such period, (iii) to cause a stockholder meeting to be held to consider
adoption and approval of the Merger Agreement and the Merger, and (iv) subject to certain limited
exceptions, for the Board to recommend that the stockholders adopt the Merger Agreement and thereby
approve the Merger.
The Merger Agreement contains customary representations and warranties of the parties and certain
termination rights for both the Company and Parent, including the right of the Company to terminate
the Merger Agreement to accept a superior proposal from a third party subject to payment of the
termination fees described above. Parent may be required to pay to the Company a termination fee
for failure to close due to failure of financing or certain other circumstances of $16 million, or
$20 million for failure to close in other circumstances.
To support its obligations under the Merger Agreement, Parent has obtained equity financing
commitments from Platinum Equity Capital Partners II, L.P. (the Guarantor), as well as debt
financing commitments from Wells Fargo Capital Finance, LLC. The Guarantor has also provided a
guarantee in favor of the Company, dated October 18, 2010, with respect to the performance by
Parent and Merger Sub of certain of their respective obligations under the Merger Agreement. The Company intends to keep
its existing senior secured notes outstanding and will comply with the indenture governing
the notes, including making any required offer to purchase the notes upon a change in control.
3
Table of Contents
Consummation of the Merger is subject to certain conditions to closing, including (i) the approval
of the Companys stockholders, (ii) the expiration or earlier termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) the absence of
any law, order or injunction prohibiting the Merger, (iv) the accuracy of the other partys
representations and warranties (subject to customary materiality qualifiers) (v) the other partys
compliance with its covenants and agreements contained in the Merger Agreement (subject to
customary materiality qualifiers) and (vi) absence of a material adverse change affecting the
Company as defined in the Agreement.
The Board approved the Merger Agreement following the unanimous recommendation of a special
committee of independent directors. The parties to the Merger Agreement expect the Merger to close
during the fourth quarter of 2010.
On October 18, 2010, the Company issued a press release announcing that it had entered into the
Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is
incorporated herein by reference.
The foregoing description of the Merger Agreement and Voting 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 Exhibits 2.1 hereto and is incorporated herein by reference. The
representations, warranties and covenants contained in the Merger Agreement were made only for
purposes of the Merger Agreement and were made as of specified dates, were solely for the benefit
of the parties to the Merger Agreement, and are qualified by information in confidential disclosure
schedules that the Company exchanged with Parent and Merger Sub in connection with the execution of
the Merger Agreement. The representations and warranties may have been made for the purposes of
allocating contractual risk between the parties to the Merger Agreement instead of establishing
these matters as facts, and may be subject to standards of materiality applicable to the
contracting parties that differ from those applicable to investors. Investors should not rely on
the representations, warranties and covenants or any descriptions thereof as characterizations of
the actual state of facts or condition of Parent, the Company or Merger Sub or any of their
respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Merger Agreement, which subsequent
information may or may not be fully reflected in the Companys public disclosures. The Merger
Agreement should not be read alone, but should instead be read in conjunction with the other
information regarding the parties to the Merger Agreement and the Merger that will be contained in,
or incorporated by reference into, the proxy statement that the Company will be filing in
connection with the Merger, as well as in the Forms 10-K, Forms 10-Q and other documents that the
Company has filed or may file with the Securities and Exchange Commission (the SEC).
Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of
the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995.
Forward-looking statements are statements that are not historical facts. Words such
4
Table of Contents
as expect(s), feel(s), believe(s), will, may, anticipate(s), intend(s) and similar
expressions are intended to identify such forward-looking statements. These statements include, but
are not limited to, the expected timing of the acquisition; the ability of Parent, Merger Sub and
the Company to close the acquisition; and statements regarding future performance. All of such
information and statements are subject to certain risks and uncertainties, the effects of which are
difficult to predict and generally beyond the control of the Company, that could cause actual
results to differ materially from those expressed in, or implied or projected by, the
forward-looking information and statements. These risks and uncertainties include, but are not
limited to: (i) uncertainties associated with the acquisition of the Company by Parent, (ii)
uncertainties as to the timing of the merger; (iii) failure to receive approval of the transaction
by the stockholders of the Company; (iv) the ability of the parties to satisfy closing conditions
to the transaction, including the receipt of regulatory approvals; (v) changes in economic,
business, competitive, technological and/or regulatory factors; and (vi) those risks identified and
discussed by the Company in its filings with the SEC. Readers are cautioned not to place undue
reliance on these forward-looking statements that speak only as of the date hereof. Neither Parent
nor the Company undertakes any obligation to publish revised forward-looking statements to reflect
events or circumstances after the date hereof or to reflect the occurrence of unanticipated events.
Readers are also urged to carefully review and consider the various disclosures in the Companys
SEC periodic and interim reports, including but not limited to its Annual Report on Form 10-K for
the fiscal year ended December 31, 2009, Quarterly Report on Forms 10-Q for the fiscal quarters
ended March 31 and June 30, 2010 and Current Reports on Form 8-K filed from time to time by the
Company. All forward-looking statements are qualified in their entirety by this cautionary
statement.
Additional Information and Where to Find It
In connection with the proposed transaction, the Company will file or furnish relevant documents,
including a proxy statement, concerning the proposed transaction with the SEC. Investors and
stockholders of the Company are urged to read the proxy statement and other relevant materials when
they become available because they will contain important information about the Company and the
proposed transaction. The final proxy statement will be mailed to the Companys stockholders.
Investors and stockholders may obtain a free copy of the proxy statement and any other relevant
documents filed or furnished by the Company with the SEC (when available) at the SECs Web site at
www.sec.gov. In addition, investors and stockholders may obtain free copies of the documents filed
with the SEC by the Company by contacting the Company by e-mail at aclinesinvestor@aclines.com or
by phone at 800-842-5491or by going to the investor relations website portion of the Company
website, www.aclines.com.
The Company and its directors and certain executive officers may be deemed to be participants in
the solicitation of proxies from the Company stockholders in respect of the proposed transaction.
Information about the directors and executive officers of the Company and their respective
interests in the Company by security holdings or otherwise is set forth in its proxy statement for
the 2010 Annual Meeting of Stockholders, which was filed with the SEC on April
5
Table of Contents
16, 2010 and its Annual Report on Form 10-K for the year ended December 31, 2009, which was filed
with the SEC on March 10, 2010. Stockholders may obtain additional information regarding the
interests of the Company and its directors and executive officers in the Merger, which may be
different than those of the Companys stockholders generally, by reading the proxy statement and
other relevant documents regarding the Merger, when filed with the SEC. Each of these documents is,
or will be, available as described above.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger, dated as of October 18, 2010, by and among American Commercial Lines Inc., Finn Holding Corporation and Finn Merger Corporation* | |
99.1
|
Press Release, dated October 18, 2010, issued by American Commercial Lines Inc. |
* | The Company has omitted certain schedules in accordance with Regulation S-K 601(b)(2). The Company will furnish the omitted schedules to the SEC upon request. |
6
Table of Contents
SIGNATURE
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 thereunto duly authorized.
AMERICAN COMMERCIAL LINES INC. (REGISTRANT) |
||||
Date: October 18, 2010 | By: | /s/ Dawn R. Landry | ||
Dawn R. Landry | ||||
Senior Vice President General Counsel & Corporate Secretary |
||||
7
Table of Contents
EXHIBIT INDEX
Exhibit 2.1
|
Agreement and Plan of Merger, dated as of October 18, 2010, by and among American Commercial Lines Inc., Finn Holding Corporation and Finn Merger Corporation * | |
Exhibit 99.1
|
Press Release, dated October 18, 2010, issued by American Commercial Lines Inc. |
* | The Company has omitted certain schedules in accordance with Regulation S-K 601(b)(2). The Company will furnish the omitted schedules to the SEC upon request. |
8