Attached files
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| EX-2.1 - US 1 INDUSTRIES INC | v212021_ex2-1.htm |
| EX-99.1 - US 1 INDUSTRIES INC | v212021_ex99-1.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
February
18, 2011
Date of
Report (Date of earliest event reported)
US
1 Industries, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Indiana
(State or
Other Jurisdiction of Incorporation)
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1-8129
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95-3585609
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(Commission
File Number)
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(IRS
Employer Identification No.)
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336 W.
US 30, Valparaiso,
Indiana
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46385
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(219) 476-1300
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(Registrant's
Telephone Number, Including Area Code)
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Not Applicable
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(Former
Name or Former Address, if Changed Since Last
Report)
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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):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
x Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ 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.
US 1 Industries, Inc., an Indiana
corporation (the “Company”), has entered into an Agreement and Plan of Merger,
dated as of February 18, 2011 (the “Merger Agreement”) with Trucking Investment
Co. Inc., an Indiana corporation (“TIC”), US 1 Merger Corp., an Indiana
corporation and direct, wholly-owned subsidiary of TIC (“Merger Sub”), Harold E.
Antonson (“Antonson”) and Michael E. Kibler (“Kibler”). At the effective time of
the Merger, TIC will be directly owned by Antonson (the Chief Financial Officer
of the Company and member of the Board of Directors of the Company) and Kibler
(the President and Chief Executive Officer of the Company and member of the
Board of Directors of the Company – the Company shareholders who have previously
submitted proposals to the Company’s Board of Directors (the “Board”) to take
the Company private.
The Merger Agreement provides that
Merger Sub will be merged with and into the Company, with the Company continuing
as the surviving corporation as a direct, wholly-owned subsidiary of TIC (the
“Merger”), and that each issued and outstanding share of Company Common Stock
immediately prior to the effective time of the Merger (other than shares owned
by the Company, TIC, Merger Sub and shares owned by shareholders who have
perfected and not withdrawn a demand for appraisal rights under Indiana law)
will automatically be canceled and converted into the right to receive $1.43 per
share in cash, without interest (the “Merger Consideration”). Options that are
issued and outstanding immediately prior to the effective time of the Merger
will be canceled and converted into the right to receive cash.
The Company expects that the closing of
the Merger will occur in the second quarter of 2011, subject to regulatory
approvals and other customary closing conditions, including TIC obtaining debt
financing on the terms set forth in the debt financing commitment letter it has
received and the adoption of the Merger Agreement and approval of the Merger by
the holders of a majority of the issued and outstanding shares of Company Common
Stock. TIC has been advised by US Bancorp that it believes that
it will be able to fund the purchase price for the shares that are acquired. The
Merger Agreement contains a “no-shop” provision, which restricts the Company’s
ability to solicit, discuss or negotiate competing
proposals.
An independent committee of the
Company’s Board, consisting of certain members of the Company’s Board who are
not members of the management or affiliates of TIC (the “Special Committee”),
unanimously approved the Merger Agreement, determined that the Merger Agreement
and the Merger were advisable, fair to and in the best interest of the Company’s
shareholders, and recommend that the Company’s shareholders vote for the
adoption of the Merger Agreement and approval of the Merger. In
determining the Merger Consideration, the Board received a third-party valuation
from its financial advisor and will receive a fairness opinion from the firm
performing this valuation. The Merger Agreement and the transactions
contemplated by the Merger Agreement were also unanimously approved by the
Company’s Board.
Messrs. Antonson and Kibler
collectively beneficially own, in the aggregate, approximately 7,920,892 shares
of Company Common Stock, representing approximately 53% of the outstanding
shares of Company Common Stock. Messrs. Antonson and Kibler have entered into a
shareholder voting agreement with TIC (the “Voting Agreement”), pursuant to
which they have agreed to vote all of their shares of Company Common Stock in
favor of the Merger and adoption of the Merger Agreement. The Voting Agreement
automatically terminates upon the termination of the Merger Agreement. Messrs.
Antonson and Kibler have also entered into a contribution agreement with TIC
(the “Contribution Agreement”) pursuant to which they have agreed to contribute
all of their shares of Company Common Stock in exchange for shares of the common
stock of TIC in lieu of receiving the cash Merger Consideration for such shares.
The Contribution Agreement automatically terminates upon the termination of the
Merger Agreement.
The foregoing summary of the Merger
Agreement and the transactions contemplated thereby does not purport to be
complete and is subject to, and qualified in its entirety by, the full text of
the Merger Agreement, which is attached hereto as Exhibit 2.1 and incorporated
herein by reference. The Merger Agreement has been included to provide investors
and shareholders with information regarding its terms. It is not intended to
provide any factual information about the Company. The representations,
warranties and covenants contained in the Merger Agreement were made only for
purposes of the Merger Agreement and as of specific dates set forth therein,
were solely for the benefit of the parties to the Merger Agreement and may be
subject to limitations agreed upon by the contracting parties. 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 the Company,
TIC, Merger Sub, Antonson or Kibler 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
Company’s public disclosure.
Important
Additional Information
In connection with the proposed Merger,
the Company plans to file a proxy statement with the Securities and Exchange
Commission (“SEC”) relating to the solicitation of proxies from its shareholders
in connection with a special meeting of shareholders of the Company to be held
for the purpose of voting on the adoption of the Merger Agreement and approval
of the Merger. Before making
any voting decision with respect to the proposed transaction, investors and
security holders are urged to read the proxy statement and other relevant
materials when they become available because they will contain important
information about the proposed transaction. The proxy statement (when
available) and any other documents filed by the Company with the SEC may be
obtained free of charge at the SEC’s website at www.sec.gov or from the Company
by directing a request to US 1 Industries, Inc., 336 West US 30, Suite 201,
Valparaiso, Indiana 46385, Attn: Secretary; telephone (219)
476-1300.
The Company and its executive officers,
directors and other members of its management and employees may be deemed to be
participants in the solicitation of proxies from the Company’s shareholders with
respect to the proposed Merger. Information regarding the participants in the
proxy solicitation and a description of their direct and indirect interests, by
security holdings or otherwise, will be set forth in the proxy statement and
other relevant materials to be filed with the SEC. Information regarding the
Company’s directors and executive officers is available in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2009. The proxy
statement (when available) and any other documents filed by the Company with the
SEC may be obtained free of charge at the SEC’s website at www.sec.gov or from
the Company by directing a request to US 1 Industries, Inc., 336 West US 30,
Suite 201, Valparaiso, Indiana 46385, Attn: Secretary; telephone
(219) 476-1300.
Forward
Looking Information
Certain statements made in this Current
Report on Form 8-K are forward-looking , including statements that assume
the successful completion of the Merger, and are made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of
1995. Forward-looking statements convey our current expectations or
forecast future events. All statements contained in this Form 8-K, other than
statements of historical fact, may be considered forward-looking statements. The
words “may,” “continue,” “estimate,” “intend,” “plan,” “will,”
“believe,” “project,” “expect,” “anticipate” and similar expressions
generally identify forward-looking statements but the absence of these words
does not necessarily mean that a statement is not forward-looking.
Forward-looking statements are not guarantees of future performance and involve
risks and uncertainties that may cause actual results to differ materially from
those statements. These risks and uncertainties include, but are not limited to,
the risk that the Company’s shareholders do not adopt the Merger Agreement and
approve the Merger and the risk that the Merger is not consummated for other
reasons. For a discussion of these and further risks and uncertainties, please
see our filings with the Securities and Exchange Commission, including our
Annual Report on Form 10-K for the year ended December 31, 2009. We file annual,
quarterly and current reports, proxy statements and other information with the
SEC. You may read and copy any reports, statements or other information that we
file at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C.,
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our public filings with the SEC also are available at the
website maintained by the SEC at www.sec.gov.
Item
9.01 Financial Statements and Exhibits.
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2.1
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Agreement
and Plan of Merger, dated February 18, 2011, by and among
TruckingInvestment Co. Inc., US 1 Merger Corp., US 1 Industries,
Inc., Harold E. Antonson andMichael E.
Kibler
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99.1
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Press
Release dated February 18, 2011*
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________________________________________
* The
information contained in Exhibit 99.1 attached hereto shall not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934, and
shall not be deemed incorporated by reference in any filing with the Securities
and Exchange Commission under the Securities Exchange Act of 1934 or the
Securities Act of 1933, whether made before or after the date hereof and
irrespective of any general incorporation by reference language in any
filing.
SIGNATURES
Pursuant to the requirements of Section
12 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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US
1 Industries, Inc.
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By:
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/s/Michael E.
Kibler
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Michael
E. Kibler
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President
and Chief Executive Officer
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Dated: February
18, 2011
EXHIBIT
INDEX
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Exhibit
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Number
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Description
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2.1
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Agreement
and Plan of Merger, dated February 18, 2011, by and among Trucking
Investment Co. Inc., US 1 Merger Corp., US 1 Industries, Inc., Harold E.
Antonson and Michael E. Kibler*
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99.1*
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Press
release dated February 18,
2011.
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*
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The
information contained in Exhibit 99.1 attached hereto shall not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934,
and shall not be deemed incorporated by reference in any filing with the
Securities and Exchange Commission under the Securities Exchange Act of
1934 or the Securities Act of 1933, whether made before or after the date
hereof and irrespective of any general incorporation by reference language
in any filing.
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