Item 1.01 Entry into a Material Definitive Agreement.
In connection with the closing of the Merger, the Company and U.S. Bank
National Association, as trustee (the "Trustee"), have entered into a Second
Supplemental Indenture, dated as of October 28, 2008 (the "Second Supplemental
Indenture"), to the Indenture dated as of August 20, 2003, by and between the
Company and the Trustee, as supplemented by the First Supplemental Indenture,
dated as December 14, 2004, relating to the Company's 3-3/8% Convertible Senior
Notes due 2033 (the "Notes").
The Second Supplemental Indenture provides that the Notes will be
convertible into $21.00 multiplied by the number of shares of common stock which
the holder of such Notes would have been entitled to receive upon the closing of
the Merger had such Notes been converted into common stock immediately prior to
the Merger.
The foregoing description is qualified in its entirety by reference to the
Second Supplemental Indenture, a copy of which is attached hereto as
Exhibit 4.1.
Item 1.02 Termination of a Material Definitive Agreement.
Effective as of the closing of the Merger, all outstanding amounts under
the Fourth Restated Credit Agreement, dated November 23, 2004, as amended, by
and among the Company, as Borrower, Certain of its Subsidiaries, as Guarantors,
Bank of America, as Agent, The Bank of Nova Scotia, as Syndication Agent, and
Calyon New York Branch and ING Capital LLC, as Co-Documentation Agents (the
"Credit Agreement"), were paid off and the Credit Agreement was terminated.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the closing of the Merger, on October 28, 2008, the
Company filed a Form 15 Certification and Notice of Termination of Registration
under the Securities and Exchange Act of 1934, as amended, to terminate
registration of its common stock. In addition, the Company notified the New York
Stock Exchange (the "NYSE") that each share of the Company common stock was
cancelled and converted into the right to receive $21.00 in cash, without
interest and less applicable withholding taxes, and has requested that NYSE halt
trading in the Company common stock following the close of business on
October 28, 2008.
Item 3.03 Material Modification to Rights of Security Holders.
Effective as of the closing of the Merger, each share of outstanding common
stock was cancelled and converted into the right to receive $21.00 in cash,
without interest and less applicable withholding taxes.
Table of Contents
Item 5.01 Changes in Control of Registrant.
On October 28, 2008, pursuant to the terms of the Merger Agreement, Buyer
consummated the acquisition of the Company through the merger of Merger Sub with
and into the Company. The Company is the surviving corporation of the Merger and
a wholly-owned subsidiary of Buyer.
The aggregate consideration used to consummate the transactions was
approximately $1.7 billion, inclusive of retired debt and associated transaction
costs, which includes (i) approximately $670 million in Buyer equity funded by
investment funds affiliated with The Blackstone Group, (ii) a bridge loan
facility comprised of an approximately $1 billion senior secured term loan and
(iii) $30 million in borrowings under a senior secured asset based credit
facility.
Item 5.02 Departure of Directors or Principle Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 28, 2008, David L. Goldsmith, Vicente Anido, Jr., Terry P.
Bayer, I.T. Corley, Lawrence M. Higby, Richard H. Koppes, Philip R. Lochner, Jr.
and Mahvash Yazdi resigned from the Company's Board of Directors effective
immediately. All committees of the Board of Directors were disbanded effective
as of October 28, 2008.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In connection with the Merger, on October 28, 2008, the Company filed the
Second Amended and Restated Certificate of Incorporation with the Secretary of
State of Delaware. As amended and restated, the certificate contains provisions
that, among other things, (i) change the registered office and registered agent;
(ii) authorize the issuance of one class of common stock with a par value of
$0.01 per share; (iii) provide that the election of the Board of Directors need
not be by written ballot; and (iv) revise certain provisions relating to the
indemnification of directors, officers, agents and employees of the Company. All
other provisions in the Company's Restated Certificate of Incorporation were
eliminated in their entirety including, without limitation, those relating to
different classes of shares and stockholder actions.
The foregoing description is qualified in its entirety by reference to the
Second Amended and Restated Certificate of Incorporation, a copy of which is
attached hereto as Exhibit 3.1.
Item 8.01 Other Events.
On October 28, 2008, the Company issued a press release announcing that it
had notified the NYSE of the scheduled closing date of the proposed Merger
pursuant to the terms of the Merger Agreement.
On October 28, 2008, the Company also issued a press release announcing
that the Buyer has completed its acquisition of the Company for a total purchase
price of approximately $1.7 billion, inclusive of retired debt and associated
transaction costs, whereby Apria stockholders will receive $21.00 in cash,
without interest and less applicable withholding taxes, for each outstanding
share of common stock they hold.
A copy of these press releases are filed hereto as Exhibit 99.1 and Exhibit
99.2, respectively, and are incorporated herein by reference.
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