Attached files
file | filename |
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EX-2.1 - TODD SHIPYARDS CORP | v206373_ex2-1.htm |
EX-10.4 - TODD SHIPYARDS CORP | v206373_ex10-4.htm |
EX-10.6 - TODD SHIPYARDS CORP | v206373_ex10-6.htm |
EX-99.2 - TODD SHIPYARDS CORP | v206373_ex99-2.htm |
EX-99.3 - TODD SHIPYARDS CORP | v206373_ex99-3.htm |
EX-99.4 - TODD SHIPYARDS CORP | v206373_ex99-4.htm |
EX-10.5 - TODD SHIPYARDS CORP | v206373_ex10-5.htm |
EX-99.1 - TODD SHIPYARDS CORP | v206373_ex99-1.htm |
EX-99.5 - TODD SHIPYARDS CORP | v206373_ex99-5.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)
December
22, 2010
TODD
SHIPYARDS CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
|
1-5109
|
91-1506719
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
1801-
16th AVENUE SW, SEATTLE, WASHINGTON
(Address
of principal executive offices)
|
98134-1089
(Zip
Code)
|
Registrant’s
telephone number, including area code
(206)
623-1635
Not
applicable
(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:
¨
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)
¨
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
Merger
Agreement
On
December 22, 2010, Todd Shipyards Corporation, a Delaware corporation (the
“Company”), entered into an Agreement and Plan of Merger (the “Merger
Agreement”) with Vigor Industrial LLC, an Oregon limited liability company
(“Parent”), and Nautical Miles, Inc., a Delaware corporation and a direct wholly
owned subsidiary of Parent (“Purchaser”).
Pursuant
to the Merger Agreement, upon the terms and subject to the conditions thereof,
Purchaser has agreed to commence a tender offer (the “Offer”) to acquire all of
the outstanding shares of common stock, $0.01 par value per share, of the
Company (the “Shares”) at a purchase price of $22.27 per share, net to the
holder in cash (the “Offer Price”) without interest and less any applicable
withholding. Purchaser plans to commence the Offer on December 30,
2010. The Offer will remain open for 20 business days, subject to the
Company’s right to extend the Go-Shop Period (as described below) and certain
other extensions of the Offer as set forth in the Merger Agreement.
The
obligation of Purchaser to purchase Shares tendered in the Offer is subject to
the satisfaction or waiver of a number of conditions set forth in the Merger
Agreement, including the expiration or termination of applicable waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the
consummation of the Offer not being unlawful and other customary closing
conditions. In addition, it is a condition to Purchaser’s obligation
to purchase the Shares tendered in the Offer, that the number of Shares that
have been validly tendered and not validly withdrawn, together with any Shares
then owned by Parent and its subsidiaries and Shares that may be issued pursuant
to the Top-Up (described below), equals at least 90% of the Shares outstanding
as of the expiration of the Offer on a fully diluted basis (the “Minimum Tender
Condition”). For example, approximately 67% of the Shares issued and
outstanding on the close of business on December 15, 2010 would need to be
tendered to satisfy the Minimum Tender Condition.
The
Company has also granted to Parent an irrevocable option (the “Top-Up”) to
purchase from the Company at the Offer Price the number of Shares that, when
added to the Shares already owned by Parent or any of its subsidiaries at the
time of exercise of the Top-Up, constitutes at least 90% of the Shares then
outstanding on a fully diluted basis, as determined in accordance with the
Merger Agreement. In no event will the Top-Up be exercisable
for a number of Shares in excess of the Shares authorized and unissued or held
in the treasury of the Company at the time of exercise of the
Top-Up. In the event the Minimum Tender Condition is satisfied,
Purchaser will be deemed to have automatically exercised the
Top-Up.
As soon
as practicable after the Purchaser’s acceptance of the Shares tendered in the
Offer but in any event not later than the second business day after the
satisfaction or waiver of certain conditions set forth in the Merger Agreement,
Purchaser will merge with and into the Company (the “Merger”) through the “short
form” procedures available under Delaware law and the Company will become an
indirect wholly-owned subsidiary of Parent. In the Merger, each
outstanding Share, other than Shares owned by Parent or its subsidiaries or by
stockholders who have validly exercised their appraisal rights under Delaware
law, will be converted into the right to receive cash in an amount equal to the
Offer Price, without interest and less any applicable withholding.
In the
event that the Minimum Tender Condition is not met, and in certain other
circumstances, the parties have agreed to complete the Merger without the prior
completion of the Offer, after receipt of the approval of a majority of the
Company’s stockholders for the adoption of the Merger Agreement. In
that case, the consummation of the Merger would be subject to similar conditions
as the Offer conditions, other than the addition of the stockholder approval
requirement and the inapplicability of the Minimum Tender
Condition.
The
Merger Agreement contains representations, warranties and covenants of the
parties customary for a transaction of this type. The Company is permitted to
solicit inquiries or engage in discussions with third parties relating to
“takeover proposals” until January 28, 2010, with an option for the Company to
extend this period up to 14 days (until February 11, 2010) (the “Go-Shop
Period”). After the Go-Shop Period, the Company may not solicit or
initiate discussions with third parties regarding other proposals to acquire the
Company and has agreed to certain restrictions on its ability to respond to such
proposals, subject to the fulfillment of certain fiduciary duties of the
Company’s board of directors. The Company must give Parent three business days
notice (whether during or after the Go-Shop Period) and negotiate further with
Parent before the Company is permitted to change its recommendation or terminate
the Merger Agreement to accept a superior proposal.
The
Merger Agreement contains certain termination rights for Parent and the Company
including, with respect to the Company, in the event that the Company receives a
superior proposal (as defined in the Merger Agreement). In connection
with the termination of the Merger Agreement under specified circumstances,
including with respect to the Company’s entry into an agreement with respect to
a superior proposal, the Company is required to pay to Parent a termination fee
equal to $4.55 million. Parent will be required to pay the Company a
termination fee equal to $6.5 million under certain specified circumstances,
including if it is not able to consummate the Offer due to its inability to
obtain financing from its lenders.
The
foregoing description of the Merger Agreement does not purport to be complete
and is qualified in its entirety by reference to the Merger Agreement, which is
filed as Exhibit 2.1 hereto and is incorporated herein by
reference.
The
Merger Agreement has been provided solely to inform the Company’s stockholders
of its terms. The representations, warranties and covenants contained in the
Merger Agreement were made only for the purposes of such agreement and as of
specific dates, were made solely for the benefit of the parties to the Merger
Agreement and are intended not as statements of fact, but rather as a way of
allocating risk to one of the parties if those statements prove to be
inaccurate. In addition, such representations, warranties and
covenants are qualified by disclosures not reflected in the text of the Merger
Agreement and may apply standards of materiality in a way that is different from
what may be viewed as material by stockholders of the Company. The
Company’s stockholders 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, Parent, Purchaser or any of their respective
subsidiaries or affiliates.
Stockholder
Tender Agreement
Concurrently
with the execution of the Merger Agreement, all of the Company’s directors and
officers and Woodbourne Partners, L.P., a private investment company that owns
Shares, entered into a Tender and Support Agreement (“Stockholder Tender
Agreement”) with Parent and Purchaser. Pursuant to the terms of the
Stockholder Tender Agreement, such stockholders have agreed to tender their
Shares in the Offer upon the terms and subject to the conditions of such
agreement and have granted irrevocable proxies to Parent and Purchaser or have
otherwise agreed to vote their Shares in favor of the Merger if such
vote is required. The Shares subject to the Stockholder Tender
Agreement comprise approximately 15.3% of all outstanding Shares. The
Stockholder Tender Agreement will terminate upon certain circumstances,
including upon termination of the Merger Agreement.
The
foregoing description of the Stockholder Tender Agreement does not purport to be
complete and is qualified in its entirety by reference to the Stockholder Tender
Agreement, which is filed as Exhibit 10.4 hereto and 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
On
December 22, 2010, Todd Pacific Shipyards Corporation, a wholly owned subsidiary
of the Company (“Todd Pacific”) entered into Transition Agreements with Michael
G. Marsh, the Company’s Secretary and General Counsel, and Berger A. Dodge, the
Company’s Treasurer and Chief Financial Officer, providing for certain
employment and severance benefits (the “Transition Agreements”). The
Transition Agreements become effective on the consummation of the Merger and
provide that, after the closing of the Merger and for the term of Mr. Marsh’s
and Mr. Dodge’s continued employment, if any, Todd Pacific will continue to pay
Mr. Marsh and Mr. Dodge a monthly base salary not less than the base salary in
effect one day before the closing of the Merger and will provide Mr. Berger and
Mr. Dodge with benefits, including health insurance, comparable to benefits
provided to other salaried employees of Todd Pacific. In
addition, effective following the closing of the Merger, if prior to the
18-month anniversary of the closing, Mr. Marsh’s or Mr. Dodge’s employment is
terminated by Todd Pacific without cause or by such employee with good reason,
Todd Pacific will continue to pay such employee’s monthly base salary,
determined as of the day before the closing date of the Merger, from the
effective date of such termination of employment through the remainder of such
18-month period.
The
foregoing description of the terms of the Transition Agreements does not purport
to be complete and is qualified in its entirety by reference to the Transition
Agreements, which are filed as Exhibit 10.5 and Exhibit 10.6 hereto and are
incorporated herein by reference.
Item
8.01 Other Events.
On
December 23, 2010, the Company and Parent issued a joint press release
announcing that they had entered into the Merger Agreement. A copy of the press
release is attached hereto as Exhibit 99.1 to this report.
On
December 23, 2010, the Company sent a letter to its employees, which is attached
hereto as Exhibit 99.2 and is incorporated herein by reference.
On
December 23, 2010, the Company sent a letter to certain of its customers, which
is attached hereto as Exhibit 99.3 and is incorporated herein by
reference.
On
December 23, 2010, the Company sent a letter to certain of its vendors and
suppliers, which is attached hereto as Exhibit 99.4 and is incorporated herein
by reference.
On
December 23, 2010, the Company sent a letter to certain of its commercial
partners, which is attached hereto as Exhibit 99.5 and is incorporated herein by
reference.
Notice
to Investors
The Offer
for outstanding Shares referred to herein has not yet commenced. This Form 8-K
is neither an offer to purchase nor a solicitation of an offer to sell any
securities. The solicitation and the offer to buy Shares will be made pursuant
to an offer to purchase and related materials that Parent and Purchaser intend
to file with the Securities and Exchange Commission on December 30,
2010. At the time the Offer is commenced, Parent and Purchaser will
file a tender offer statement on Schedule TO with the Securities and Exchange
Commission, and thereafter the Company will file a solicitation / recommendation
statement on Schedule 14D-9 with respect to the Offer. The Schedule
TO (including an offer to purchase, a related letter of transmittal and other
offer documents) and the solicitation/recommendation statement will contain
important information that should be read carefully and considered before any
decision is made with respect to the Offer. These materials will be
sent free of charge to all stockholders of the Company when
available. In addition, all of these materials (and all other
materials filed by the Company with the Securities and Exchange Commission) will
be available at no charge from the Securities and Exchange Commission through
its website at www.sec.gov. Free copies of the offer to purchase, the
related letter of transmittal and certain other offering documents can be
obtained from Phoenix Advisory Partners, the information agent for the Offer, by
calling (800) 576-4314. Stockholders may also obtain free copies of
the documents filed with the Securities and Exchange Commission from the Company
by contacting the Company at 1801 16th Avenue SW in Seattle, Washington
98134-1085.
In
connection with a potential one-step Merger, the Company will file a proxy
statement with the Securities and Exchange Commission. Additionally,
the Company will file other relevant materials with the Securities and Exchange
Commission in connection with the proposed acquisition of the Company by Parent
and Purchaser pursuant to the terms of the Merger Agreement. The
materials to be filed by the Company with the Securities and Exchange Commission
may be obtained free of charge at the Securities and Exchange Commission’s web
site at www.sec.gov. Investors and stockholders also may obtain free
copies of the proxy statement from the Company by contacting the Company at 1801
16th Avenue SW in Seattle, Washington 98134-1085. Investors and
security holders of the Company are urged to read the proxy statement and the
other relevant materials when they become available before making any voting or
investment decision with respect to a one-step Merger because they will contain
important information about a one-step merger.
The
Company and its respective directors, executive officers and other members of
their management and employees, under the Securities and Exchange Commission
rules, may be deemed to be participants in the solicitation of proxies of the
Company stockholders in connection with the one-step
Merger. Investors and security holders may obtain more detailed
information regarding the names, affiliations and interests of certain of the
Company’s executive officers and directors in the solicitation by reading the
Company’s proxy statement for its 2010 annual meeting of stockholders, the
Annual Report on Form 10-K for the fiscal year ended March 28, 2010, and the
proxy statement and other relevant materials which may be filed with the
Securities and Exchange Commission in connection with the one-step Merger when
and if they become available. Information concerning the interests of the
Company’s participants in the solicitation, which may be, in some cases,
different than those of the Company’s stockholders generally, will be set forth
in the proxy statement relating to the one-step Merger when it becomes
available. Additional information regarding the Company directors and executive
officers is also included in the Company’s proxy statement for its 2010 annual
meeting of stockholders and is included in the Annual Report on Form 10-K for
the fiscal year ended March 28, 2010.
Cautionary
Statement
Statements contained in this Report,
which are not historical facts or information are “forward-looking
statements.” Words such as “believe,” “expect,” “intend,” “will,”
“should,” and other expressions that indicate future events and trends identify
such forward-looking statements. These forward-looking statements
involve risks and uncertainties which could cause the outcome to be materially
different than stated. Such risks and uncertainties include both
general economic risks and uncertainties and matters discussed in the Company’s
annual report on Form 10-K which relate directly to the Company’s operations and
properties. The Company cautions that any forward-looking statement
reflects only the belief of the Company or its management at the time the
statement was made. Although the Company believes such
forward-looking statements are based upon reasonable assumptions, such
assumptions may ultimately prove to be inaccurate or incomplete. The
Company undertakes no obligation to update any forward-looking statement to
reflect events or circumstances after the date on which the statement was
made.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
|
Description
|
|
Exhibit
2.1
|
Agreement
and Plan of Merger, dated as of December 22, 2010, by and among Todd
Shipyards Corporation, Nautical Miles, Inc. and Vigor Industrial
LLC*
|
|
Exhibit
10.4
|
Tender
and Support Agreement, dated as of December 22, 2010, by and among Vigor
Industrial LLC, Nautical Miles, Inc., Brent D. Baird, Steven A. Clifford,
Patrick W.E. Hodgson, Joseph D. Lehrer, William L. Lewis, J. Paul Reason,
Philip N. Robinson, Stephen G. Welch, Michael G. Marsh, Berger A. Dodge
and Woodbourne Partners, L.P.
|
|
Exhibit
10.5
|
Transition
Agreement, dated as of December 22, 2010, by and between Todd Pacific
Shipyards Corporation and Michael G. Marsh.
|
|
Exhibit
10.6
|
Transition
Agreement, dated as of December 22, 2010, by and between Todd Pacific
Shipyards Corporation and Berger A. Dodge.
|
|
Exhibit
99.1
|
Joint
Press Release issued by Parent and the Company on December 23,
2010.
|
|
Exhibit
99.2
|
Letter
to employees from Stephen G. Welch, Chief Executive Officer of the
Company, dated December 23, 2010.
|
|
Exhibit
99.3
|
Letter
to customers from Stephen G. Welch, Chief Executive Officer of the
Company, dated December 23, 2010.
|
|
Exhibit
99.4
|
Letter
to vendors from Stephen G. Welch, Chief Executive Officer of the Company,
dated December 23, 2010.
|
|
Exhibit
99.5
|
Letter
to commercial partners from Stephen G. Welch, Chief Executive Officer of
the Company, dated December 23,
2010.
|
* Schedules
omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to
furnish a supplemental copy of any omitted schedule to the Securities and
Exchange Commission upon request.
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.
TODD
SHIPYARDS CORPORATION
|
||
By:
|
||
Date: December
23, 2010
|
/s/ Michael G.
Marsh
|
|
Michael
G. Marsh
|
||
Secretary
and General
Counsel
|
EXHIBIT
INDEX
Exhibit No.
|
Description
|
|
Exhibit
2.1
|
Agreement
and Plan of Merger, dated as of December 22, 2010, by and among Todd
Shipyards Corporation, Nautical Miles, Inc. and Vigor Industrial
LLC*
|
|
Exhibit
10.4
|
Tender
and Support Agreement, dated as of December 22, 2010, by and among Vigor
Industrial LLC, Nautical Miles, Inc., Brent D. Baird, Steven A. Clifford,
Patrick W.E. Hodgson, Joseph D. Lehrer, William L. Lewis, J. Paul Reason,
Philip N. Robinson, Stephen G. Welch, Michael G. Marsh, Berger A. Dodge
and Woodbourne Partners, L.P.
|
|
Exhibit
10.5
|
Transition
Agreement, dated as of December 22, 2010, by and between Todd Pacific
Shipyards Corporation and Michael G. Marsh.
|
|
Exhibit
10.6
|
Transition
Agreement, dated as of December 22, 2010, by and between Todd Pacific
Shipyards Corporation and Berger A. Dodge.
|
|
Exhibit
99.1
|
Joint
Press Release issued by Parent and the Company on December 23,
2010.
|
|
Exhibit
99.2
|
Letter
to employees from Stephen G. Welch, Chief Executive Officer of the
Company, dated December 23, 2010.
|
|
Exhibit
99.3
|
Letter
to customers from Stephen G. Welch, Chief Executive Officer of the
Company, dated December 23, 2010.
|
|
Exhibit
99.4
|
Letter
to vendors from Stephen G. Welch, Chief Executive Officer of the Company,
dated December 23, 2010.
|
|
Exhibit
99.5
|
Letter
to commercial partners from Stephen G. Welch, Chief Executive Officer of
the Company, dated December 23,
2010.
|
* Schedules
omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to
furnish a supplemental copy of any omitted schedule to the Securities and
Exchange Commission upon request.