Attached files
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EX-10.1 - EX-10.1 - AMERICAN PACIFIC CORP | p18390exv10w1.htm |
EX-99.1 - EX-99.1 - AMERICAN PACIFIC CORP | p18390exv99w1.htm |
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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
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 14, 2010
AMERICAN PACIFIC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware | 1-8137 | 59-6490478 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
3883 Howard Hughes Parkway, Suite 700, Las Vegas, Nevada | 89169 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (702) 735-2200
N/A
(Former name or former address, if changed since last report)
(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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o 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))
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Item 1.01 Entry into a Material Definitive Agreement.
On December 14, 2010, American Pacific Corporation (the Company) entered into a settlement
agreement (Settlement Agreement) with Golconda Capital Portfolio, L.P., Golconda Capital
Management, LLC and William D. Summitt (the foregoing entities and individuals collectively, the
Golconda Group and each individually, a Member) to settle a potential proxy contest in
connection with the Companys upcoming 2011 annual meeting of stockholders (the 2011 Annual
Meeting).
Golconda Capital Portfolio, L.P. and William D. Summitt previously sent a letter, dated October 26,
2010, notifying the Company of their intent to nominate William D. Summitt, Charlotte E. Sibley,
Bart Weiner and David B. Lee (the Original Four Nominees) for election to the board of directors
of the Company (the Board) at the 2011 Annual Meeting.
Pursuant to the Settlement Agreement, Golconda Capital Portfolio, L.P. and William D. Summitt have
irrevocably withdrawn their nominations of the Original Four Nominees, and the Golconda Group will
cease its solicitation efforts in support of such nominees. The Settlement Agreement provides for
the Board to increase its size to twelve (12) directors and to elect Charlotte E. Sibley as a Class
B director and Bart Weiner as a Class C director. Under the terms of the Settlement Agreement, the
Board shall also nominate and recommend to the Companys stockholders each of Ms. Sibley for
re-election to the Board at the 2011 Annual Meeting and Mr. Weiner for re-election to the Board at
the 2012 annual meeting of stockholders of the Company (the 2012 Annual Meeting). Under the
terms of the Settlement Agreement, and in furtherance of its recent public disclosures, the Company
shall also include in its proxy statement for the 2011 Annual Meeting and the Board shall recommend
the Companys existing proposal to reduce the percentage of votes required to elect directors from
80% to a simple majority. The Settlement Agreement further provides that the Golconda Group shall
vote for such proposal at the 2011 Annual Meeting and for all of the Companys director nominees at
each of the 2011 Annual Meeting and 2012 Annual Meeting.
Under the terms of the Settlement Agreement, the Company has agreed that the Company shall not
increase the size of the Board beyond twelve (12) members without the approval of the Companys
stockholders. In accordance with the terms of the Settlement Agreement, the Company has also
announced the current intention of the Board to reduce the size of the Board over time through the
non-replacement of current directors who retire or are otherwise unable to serve.
The Settlement Agreement further provides for a standstill pursuant to which, until November 28,
2012, the Members will not acquire any voting securities of the Company which would result in the
Golconda Group having an ownership or voting interest in more than 5% of the outstanding shares of
the Companys common stock. The standstill also restricts the Members from, among other things,
engaging in proxy solicitations in an election contest, seeking to make a stockholder proposal
except as otherwise expressly provided in the Settlement Agreement, seeking to call a meeting of
stockholders or solicit consents from stockholders, seeking to obtain representation on the Board,
except as otherwise expressly provided in the Settlement Agreement, and seeking to remove any
director from the Board.
The Settlement Agreement further provides that the Company shall reimburse William D. Summitt,
Golconda Capital Portfolio, L.P. and Golconda Capital Management, LLC for the reasonable,
documented and actual out-of-pocket fees and expenses incurred by them through the date of the
Settlement Agreement in connection with the nominations of the Original Four Nominees and the
potential proxy solicitation and the negotiation of the Settlement Agreement and the preparation
and filing of all required SEC filings thereunder, not to exceed $90,000 in the aggregate.
The description of the Settlement Agreement in this report does not purport to be complete and is
qualified in its entirety by reference to the Settlement Agreement, a copy of which is filed as
Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
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The discussion under Item 5.02(d) below is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
(d) Election of New Directors
On December 14, 2010, the Board elected, in accordance with, and furtherance of, the Settlement
Agreement, each of Charlotte E. Sibley and Bart Weiner as directors of the Company. Prior to the
election of each of Ms. Sibley and Mr. Weiner, the Board, in accordance with the terms of the
Companys Restated Certificate of Incorporation, as amended, and the Companys Amended and Restated
By-laws, adopted a resolution increasing to twelve (12) the number of directors which constitutes
the whole Board. Following such action by the Board, two vacancies then existed on the Board, which
Ms. Sibley and Mr. Weiner were elected to fill.
Ms. Sibley will serve as one of the Companys Class B directors and Mr. Weiner will serve as one of
the Companys Class C directors, in each case for the remainder of the full term of such class and
until such directors successor has been duly elected and qualified. Class B directors are to stand
for election at the 2011 Annual Meeting and Class C directors are to stand for election at the 2012
Annual Meeting.
Neither Ms. Sibley nor Mr. Weiner is, nor has been, an employee of the Company. The Board
affirmatively determined that each of Ms. Sibley and Mr. Weiner qualified as independent under
the independence requirements for directors pursuant to the rules of The NASDAQ Stock Market LLC.
As non-employee directors on the Board, each of Ms. Sibley and Mr. Weiner will receive the same
standard cash compensation amounts paid to other non-employee directors for service on the Board,
which amounts have been disclosed previously in the Companys most recent proxy statement, filed
with the Securities and Exchange Commission on January 20, 2010, under the headings Director
Compensation (Fiscal 2009) and Director Compensation Determinations and Considerations, and, by
incorporation by reference, in the Companys Annual Report on Form 10-K for the fiscal year ended
September 30, 2009.
The Company and each of Ms. Sibley and Mr. Weiner will enter into the Companys standard form of
Indemnification Agreement between the Company and a director, the form of which agreement was filed
by the Company as Exhibit 3.6 to the Companys Annual Report on Form 10-K for the fiscal year ended
September 30, 2000.
There were no arrangements or understandings between either of Ms. Sibley and Mr. Weiner and any
other person pursuant to which either was elected as a director, other than the Settlement
Agreement, and there are and have been no transactions since the beginning of the Companys last
fiscal year, or currently proposed, regarding either of Ms. Sibley and Mr. Weiner that are required
to be disclosed by Item 404(a) of Regulation S-K.
The full text of the Settlement Agreement is included as Exhibit 10.1 to this Current Report on
Form 8-K and is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On December 14, 2010, the Company issued a press release announcing the signing of the Settlement
Agreement. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form
8-K.
The information in this Item 7.01 and in Exhibit 99.1 to this Current Report on Form 8-K is being
furnished pursuant to Item 7.01 and shall not be deemed to be filed for purposes of Section 18 of
the Securities
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Exchange Act of 1934 (the Exchange Act) or otherwise subject to the liabilities of that section,
nor shall it be deemed to be incorporated by reference in any filing under the Securities Act of
1933 or the Exchange Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. | Description | |
10.1
|
Settlement Agreement, dated December 14, 2010, by and among American Pacific Corporation, Golconda Capital Portfolio, L.P., Golconda Capital Management, LLC and William D. Summitt | |
99.1
|
Press Release, dated December 14, 2010, announcing the Settlement Agreement |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
American Pacific Corporation |
||||
Date: December 14, 2010 | By: | /s/ JOSEPH CARLEONE | ||
Joseph Carleone | ||||
President and Chief Executive Officer |
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EXHIBIT INDEX
Exhibit No. | Description | |
10.1
|
Settlement Agreement, dated December 14, 2010, by and among American Pacific Corporation, Golconda Capital Portfolio, L.P., Golconda Capital Management, LLC and William D. Summitt | |
99.1
|
Press Release, dated December 14, 2010, announcing the Settlement Agreement |
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