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EX-2.1 - EX-2.1 - NICOR INC | c61710exv2w1.htm |
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
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 6, 2010
NICOR INC.
(Exact name of registrant as specified in its charter)
Illinois | 1-7297 | 36-2855175 | ||
(State or other jurisdiction | (Commission | (I.R.S. Employer | ||
of incorporation) | File Number) | Identification Number) |
1844 Ferry Road
Naperville, Illinois 60563-9600
(Address of principal executive offices) (Zip Code)
Naperville, Illinois 60563-9600
(Address of principal executive offices) (Zip Code)
(630) 305-9500
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
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):
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)) |
Item 1.01 Entry into a Material Definitive Agreement
Merger Agreement
On December 6, 2010, AGL Resources Inc., a Georgia corporation (AGL Resources) and Nicor Inc., an
Illinois corporation (Nicor), announced that their respective boards of directors approved and
the parties entered into an Agreement and Plan of Merger (the Merger Agreement) by and among AGL
Resources, Nicor, Ottawa Acquisition LLC, an Illinois limited liability company (Merger LLC), and
Apollo Acquisition Corp., an Illinois corporation (Merger Sub). Both Merger LLC and Merger Sub
are wholly-owned subsidiaries of AGL Resources. Pursuant to the Merger Agreement, Merger Sub will
merge with and into Nicor (the Merger), with Nicor to be the surviving corporation in the Merger
(the Surviving Corporation) and a wholly-owned subsidiary of AGL Resources, which will be
followed immediately after the effective time of the Merger (the Effective Time), by a merger of
the Surviving Corporation with and into Merger LLC (the Subsequent Merger, and together with the
Merger, the Transaction), with Merger LLC to be the surviving entity in the Subsequent Merger.
It is anticipated that AGL Resources shareholders will own approximately 67% and Nicor
shareholders will own approximately 33% of the outstanding common stock of AGL Resources following
the completion of the Transaction.
At the Effective Time, each share of common stock of Nicor outstanding will be converted into the
right to receive consideration consisting of (i) $21.20 in cash and (ii) 0.8382 of a share of AGL
Resources common stock (the Merger Consideration). Immediately prior to the Effective Time, each
share of restricted Nicor common stock will vest in full, and each such share of restricted stock
will be converted into the right to receive the Merger Consideration, subject to withholding taxes.
Immediately prior to the Effective Time, each outstanding vested or unvested restricted stock unit
in respect of Nicor common stock will be cancelled, and the holder of each such restricted stock
unit will be entitled to receive a cash payment equal to the product of (i) the number of shares of
Nicor common stock subject to such restricted stock unit, and (ii) the value of the Merger
Consideration, subject to withholding taxes. In addition, immediately prior to the Effective Time,
each option to purchase Nicor common stock that is outstanding will be cancelled, and the holder of
each such option will be entitled to receive a cash payment in an amount equal to the product of
(i) the number of shares previously subject to such option and (ii) the excess, if any, of (A) the
value of the Merger Consideration over (B) the exercise price per share of the option, subject to
withholding taxes.
The Merger Agreement also provides that upon the consummation of the Transaction, the board of
directors of AGL Resources will be made up of sixteen members consisting of the twelve current
directors of AGL Resources and four designees of Nicor.
The completion of the Merger is subject to various customary conditions, including, among others
(i) the approval of the Nicor shareholders, (ii) the approval of the AGL Resources shareholders to (A) amend the Amended and Restated Articles of Incorporation of AGL Resources to increase the
maximum size of the AGL Resources board of directors, and (B) issue shares of AGL Resources common
stock under the rules of the New York Stock Exchange, (iii) clearance under the Hart-Scott-Rodino
Antitrust Improvements Act, (iv) effectiveness of the registration statement for the AGL Resources
shares of common stock to be issued to Nicor shareholders in the Merger and approval of the listing
of such shares on the New York Stock Exchange, (v) receipt of all required regulatory approvals
from, among others, the Illinois Commerce Commission, and (vi) subject to certain materiality
exceptions, the accuracy of the representations and warranties made by Nicor and AGL Resources,
respectively, and compliance by Nicor and AGL Resources with their respective obligations under the
Merger Agreement. The Merger and the Subsequent Merger, considered together as a single integrated
transaction for United States federal income tax purposes along with the other transactions
effected pursuant to the Merger Agreement, are intended to qualify as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended.
The Merger Agreement contains (a) customary representations and warranties of Nicor and AGL
Resources, and (b) covenants of Nicor and AGL Resources (i) to conduct their respective businesses
in the ordinary course and (ii) with respect to, among other things, cooperation on seeking
necessary regulatory approvals and access to information. Nicor and AGL Resources have also agreed
not to (i) solicit proposals relating to alternative business combination transactions or (ii)
subject to certain exceptions, enter into discussions, or enter into any
agreement, concerning, or provide confidential information in connection with, any proposals for
alternative business combination transactions. AGL Resources has agreed to use its reasonable best
efforts to (i) obtain the financing contemplated by the commitment letter, as described in further
detail below; and (ii) obtain regulatory approvals necessary to consummate the Merger.
The Merger Agreement contains certain termination rights for each of Nicor and AGL Resources,
including each partys right to terminate the Merger Agreement under certain circumstances to enter
into a Superior Proposal (as defined in the Merger Agreement). In addition, the Merger Agreement
provides that in connection with the termination of the Merger Agreement under specified
circumstances, Nicor may be required to pay AGL Resources a termination fee of $67 million (or $36
million in the event Nicor terminates to accept an acquisition proposal received prior to the 45th
day after the date of the Merger Agreement), and AGL Resources may be required to pay Nicor a
termination fee of $67 million. Further, the Merger Agreement provides that if either party
terminates the Merger Agreement due to a failure by AGL Resources to obtain the necessary financing
for the Transaction, then AGL Resources may be required to pay Nicor a Financing Failure Fee (as
defined in the Merger Agreement) of $115 million.
Item 9.01 Financial Statements and Exhibits.
The agreements included as exhibits to this report contain representations and warranties by each
of the parties to the applicable agreement. These representations and warranties were made solely
for the benefit of the other parties to the applicable agreement and (i) were not intended to be
treated as categorical statements of fact, but rather as a way of allocating the risk to one of the
parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement
by disclosures that were made to the other party in connection with the negotiation of the
applicable agreement; (iii) may apply contract standards of materiality that are different from
materiality under the applicable securities laws; and (iv) were made only as of the date of the
applicable agreement or such other date or dates as may be specified in the agreement.
(d) Exhibits
2.1 | Agreement and Plan of Merger, dated December 6, 2010 among parties |
Caution Regarding Forward-Looking Information and Safe Harbor Statement
To the extent any statements made in this document contain information that is not historical,
these statements are forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended
(collectively, forward-looking statements).
These forward-looking statements relate to, among other things, the expected benefits of the
proposed merger such as efficiencies, cost savings, tax benefits, enhanced revenues and cash flow,
growth potential, market profile and financial strength; the competitive ability and position of
the combined company; and the expected timing of the completion of the transaction. Forward-looking
statements can generally be identified by the use of words such as believe, anticipate,
expect, estimate, intend, continue, plan, project, will, may, should, could,
would, target, potential and other similar expressions. In addition, any statements that
refer to expectations, projections or other characterizations of future events or circumstances are
forward-looking statements. Although certain of these statements set out herein are indicated
above, all of the statements in this document that contain forward-looking statements are qualified
by these cautionary statements. Although AGL Resources and Nicor believe that the expectations
reflected in such forward-looking statements are reasonable, such statements involve risks and
uncertainties, and undue reliance should not be placed on such statements. Certain material factors
or assumptions are applied in making forward-looking statements, including, but not limited to,
factors and assumptions regarding the items outlined above. Actual results may differ materially
from those expressed or implied in such statements. Important factors that could cause actual
results to differ materially from these expectations include, among other things, the following:
the failure to receive, on a timely basis or otherwise, the required approvals by AGL Resources and
Nicor stockholders and government or regulatory agencies (including the terms of such approvals);
the risk that a condition to closing of the merger may not be satisfied; the possibility that the
anticipated benefits and synergies from the proposed merger cannot be fully realized or may take
longer to realize than expected; the possibility that costs or difficulties related to the
integration of AGL Resources and Nicor operations will be greater than expected; the ability of the
combined company to retain and hire key personnel and maintain relationships with customers,
suppliers or other business partners; the impact of legislative, regulatory, competitive and
technological changes; the risk that the credit ratings of the combined company may be different
from what the companies expect; and other risk factors relating to the energy industry, as detailed
from time to time in each of AGL Resources and Nicors reports filed with the Securities and
Exchange Commission (SEC). There can be no assurance that the proposed merger will in fact be
consummated.
Additional information about these factors and about the material factors or assumptions underlying
such forward-looking statements may be found in the body of this document, as well as under Item
1.A. in each of AGL Resources and Nicors Annual Report on Form 10-K for the fiscal year December
31, 2009, and Item 1.A in each of AGL Resources and Nicors most recent Quarterly Report on Form
10-Q for the quarterly period ended September 30, 2010. AGL Resources and Nicor caution that the
foregoing list of important factors that may affect future results is not exhaustive. When relying
on forward-looking statements to make decisions with respect to AGL Resources and Nicor, investors
and others should carefully consider the foregoing factors and other uncertainties and potential
events. All subsequent written and oral forward-looking statements concerning the proposed
transaction or other matters attributable to AGL Resources and Nicor or any other person acting on
their behalf are expressly qualified in their entirety by the cautionary statements referenced
above. The forward-looking statements contained herein speak only as of the date of this
presentation. Neither AGL Resources nor Nicor undertakes any obligation to update or revise any
forward-looking statement, except as may be required by law.
Additional Information
In connection with the proposed merger, AGL Resources plans to file with the SEC a Registration
Statement on Form S-4 that will include a joint proxy statement of AGL Resources and Nicor that
also constitutes a prospectus of AGL Resources. AGL Resources and Nicor will mail the joint proxy
statement/prospectus to their respective stockholders. INVESTORS ARE URGED TO READ THE JOINT PROXY
STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. You
will be able to obtain the joint proxy statement/prospectus, as well as other filings containing
information about AGL Resources and Nicor, free of charge, at the website maintained by the SEC at
www.sec.gov. You may also obtain these documents, free of charge, from AGL Resources website
(www.aglresources.com) under the tab Investor Relations/SEC Filings or by directing a request to
AGL Resources, P.O. Box 4569, Atlanta, GA, 30302-4569. You may also obtain these documents, free of
charge, from Nicors website (www.nicor.com) under the tab Investor Information/SEC Filings or by
directing a request to Nicor, P.O. Box 3014, Naperville, IL 60566-7014.
The respective directors and executive officers of AGL Resources and Nicor, and other persons, may
be deemed to be participants in the solicitation of proxies in respect of the proposed transaction.
Information regarding AGL Resources directors and executive officers is available in its
definitive proxy statement filed with the SEC by AGL Resources on March 15, 2010, and information
regarding Nicor directors and executive officers is available in its definitive proxy statement
filed with the SEC by Nicor on March 10, 2010. These documents can be obtained free of charge from
the sources indicated above. Other information regarding the interests of the participants in the
proxy solicitation will be included in the joint proxy statement/prospectus and other relevant
materials to be filed with the SEC when they become available. This communication shall not
constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer
to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of
securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such jurisdiction. No offer of
securities shall be made except by means of a prospectus meeting the requirements of Section 10 of
the Securities Act of 1933, as amended.
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 hereunto duly authorized.
Nicor Inc. |
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Date December 7, 2010 | /s/ PAUL C. GRACEY, JR. | |||
Paul C. Gracey, Jr. | ||||
Senior Vice President, General Counsel and Secretary |
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Page 3
Exhibit Index
Exhibit | ||
Number | Description of Documents | |
2.1
|
Agreement and Plan of Merger, dated as of December 6, 2010, by and among AGL Resources Inc., Apollo Acquisition Corp., Ottawa Acquisition LLC and Nicor Inc. |