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| CBE > SEC Filings for CBE > Form 8-K on 9-Sep-2009 | All Recent SEC Filings |
9-Sep-2009
Entry into a Material Definitive Agreement
the indemnitee that are determined by a court to constitute fraud or dishonesty
in the performance of his or her duties to Cooper Industries plc or, prior to
the Transaction Time, to Cooper Industries, Ltd. The Director and Secretary
indemnification agreements also provide that any and all indemnifiable expenses
shall, if so requested by the indemnitee, be paid promptly as they are incurred,
provided that the indemnitee must repay any such expense advance to the extent
that the indemnitee is adjudged by the High Court of Ireland or the court in
which such action was brought to be liable for fraud or dishonesty in the
performance of his or her duties to Cooper Industries plc or, prior to the
Transaction Time, to Cooper Industries, Ltd. Prior to seeking an indemnification
payment or expense advance under the Director and Secretary indemnification
agreement, the indemnitee shall seek an indemnification payment or expense
advance under any applicable insurance policy and shall request that Cooper
Industries plc consider in its discretion whether to make such indemnification
payment or expense advance. In the event an indemnification payment or expense
advance is not received pursuant to an insurance policy, or from Cooper
Industries plc, within 60 calendar days of the later of the indemnitee's request
of the insurer and his or her request of Cooper Industries plc, the indemnitee
shall be entitled to receive such indemnification payment or expense advancement
from Cooper Industries, Ltd. pursuant to the terms of the Director and Secretary
indemnification agreement. In the event the indemnitee receives judgment in his
or her favor or the claim against the indemnitee is otherwise disposed of in a
manner that allows Cooper Industries plc to indemnify the indemnitee under its
articles of association as then in effect, Cooper Industries plc will provide
such indemnification to the indemnitee and will reimburse Cooper Industries,
Ltd. for any indemnification or expense advance previously made by Cooper
Industries, Ltd. in connection with such claim. A copy of the form of Director
and Secretary indemnification agreement is filed herewith as Exhibit 10.1 and
incorporated into this Item 1.01 by reference, and the foregoing summary of the
Director and Secretary indemnification agreements is qualified in its entirety
by reference to Exhibit 10.1.
In connection with the Transaction, Cooper Industries, Ltd. and Cooper
Industries plc are entering into deeds of indemnification substantially in the
form filed herewith as Exhibit 10.2 with each of the executives of Cooper
Industries plc (other than the directors and Secretary) (the "Officer
indemnification agreements") that provide that Cooper Industries plc will
indemnify the indemnitee to the fullest extent permitted by law against claims
related to the indemnitee's service to Cooper Industries plc (or to Cooper
Industries, Ltd. prior to the Transaction Time), except for claims relating to
actions by the indemnitee that are determined by a court to constitute fraud or
dishonesty in the performance of his or her duties to Cooper Industries plc or,
prior to the Transaction Time, to Cooper Industries, Ltd. The Officer
indemnification agreements also provide that any and all indemnifiable expenses
shall, if so requested by the indemnitee, be paid promptly as they are incurred,
provided that the indemnitee must repay any such expense advance to the extent
that the indemnitee is adjudged by the High Court of Ireland or the court in
which such action was brought to be liable for fraud or dishonesty in the
performance of his or her duties to Cooper Industries plc or, prior to the
Transaction Time, to Cooper Industries, Ltd. A copy of the form of Officer
indemnification agreement is filed herewith as Exhibit 10.2 and incorporated
into this Item 1.01 by reference, and the foregoing summary of the Officer
indemnification agreements is qualified in its entirety by reference to
Exhibit 10.2.
Assumption of Employee Share Plans and Awards
On September 8, 2009, Cooper Industries plc entered into Deed Polls of
Assumption (collectively, the "Deed Polls") pursuant to which Cooper Industries
plc assumed, effective as of the Transaction Time, certain equity incentive
plans and other similar employee award plans of the Cooper Industries group
(collectively, the "Plans"), including all awards issued thereunder. The Deed
Polls provide that Cooper Industries plc will undertake and discharge all of the
rights and obligations previously discharged by Cooper Industries, Ltd. under
the Plans and exercise all of the powers previously exercised by Cooper
Industries, Ltd. pursuant to the terms of the Plans. A copy of each Deed Poll is
filed herewith as Exhibits 10.8 through 10.11 and incorporated into this
Item 1.01 by reference, and the foregoing summary of the Deed Polls is qualified
in its entirety by reference to Exhibits 10.8 through 10.11.
Second Amended and Restated Rights Agreement
In connection with the Transaction (as defined in Item 8.01 of this Current
Report on Form 8-K), Cooper Industries plc and Cooper Industries, Ltd. entered
into a Second Amended and Restated Rights Agreement, dated as of September 8,
2009, executed as a Deed Poll, with Computershare Trust Company, N.A., as Rights
Agent (the "Rights Agreement"). The Class A common shareholders of Cooper
Industries, Ltd. approved the Transaction at a special meeting of shareholders
held on August 31, 2009. The Rights Agreement further amends and restates the
Amended and Restated Rights Agreement, dated as of August 3, 2007, between
Cooper Industries, Ltd. and Computershare Trust Company, N.A. (the "Old
Agreement"). Pursuant to the Rights Agreement, the preferred share purchase
rights associated with the Cooper Industries, Ltd. Class A common shares (the
"Old Rights") were replaced with newly issued preferred share purchase rights
associated with the Cooper Industries plc ordinary shares (the "Rights"). The
content of the Rights Agreement is substantially similar to that of the Old
Agreement.
The Rights Agreement is filed herewith as Exhibit 4.1 and incorporated into
this Item 1.01 by reference, and the foregoing summary of the Rights Agreement
is qualified in its entirety by reference to Exhibit 4.1.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
The information in Item 8.01 of this Current Report on Form 8-K is
incorporated into this Item 3.01 by reference.
Item 3.03. Material Modification to Rights of Security Holders.
The information in Item 8.01 of this Current Report on Form 8-K is
incorporated into this Item 3.03 by reference.
Item 5.01. Changes in Control of Registrant.
The information in Item 8.01 of this Current Report on Form 8-K is
incorporated into this Item 5.01 by reference.
Item 5.02. Departures of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Employee Share Plans and Awards
In connection with the Transaction, effective as of the Transaction Time,
Cooper Industries plc assumed the existing obligations of Cooper Industries,
Ltd. under the Plans, including all awards issued thereunder. Furthermore, the
Plans have been amended to provide (1) that shares of Cooper Industries plc will
be issued, held available or used to measure benefits as appropriate under the
Plans, in lieu of shares of Cooper Industries, Ltd., including upon exercise of
any options or upon the vesting of restricted stock units or performance share
awards issued under those Plans; and (2) for the appropriate substitution of
Cooper Industries plc for Cooper Industries, Ltd. in those Plans. A copy of each
Plan as so amended is filed herewith as Exhibits 10.3 through 10.7 and
incorporated into this Item 5.02 by reference, and the foregoing summary of the
amended Plans is qualified in its entirety by reference to Exhibits 10.3 through
10.7.
Item 8.01. Other Events.
On September 4, 2009, Cooper Industries, Ltd. received approval from the
Supreme Court of Bermuda of a scheme of arrangement under Bermuda law (the
"Scheme of Arrangement") that effected a transaction (the "Transaction") that
resulted in the holders of Class A common shares of Cooper Industries, Ltd.,
other than wholly owned subsidiaries of Cooper Industries, Ltd. that held
Class A common shares (the "Class A Public Shareholders"), becoming ordinary
shareholders of Cooper Industries plc and Cooper Industries, Ltd. becoming a
wholly owned subsidiary of Cooper Industries plc. The Scheme of Arrangement
became effective upon the filing of the court order sanctioning the Scheme of
Arrangement with the Bermuda Registrar of Companies on September 8, 2009.
At 7:30 p.m., Eastern Time, on September 8, 2009 (the "Transaction Time"),
the following steps occurred effectively simultaneously:
1. all previously outstanding whole Class A common shares of Cooper Industries,
Ltd. held by the Class A Public Shareholders were cancelled (there were no
fractional Class A common shares of Cooper Industries, Ltd. held of record
at that time);
2. Cooper Industries, Ltd. issued 166,812,049 Class A common shares to Cooper Industries plc;
3. Cooper Industries plc issued ordinary shares on a one-for-one basis to the holders of whole Cooper Industries, Ltd. Class A common shares that were cancelled, resulting in the issuance of 166,812,049 ordinary shares in the aggregate; and
4. all previously outstanding ordinary shares of Cooper Industries plc, which prior to the Transaction Time were held by Cooper Industries, Ltd. and its nominees, were acquired by Cooper Industries plc and cancelled for no consideration, in accordance with a resolution passed by Cooper Industries, Ltd. and such nominees.
Prior to the Transaction, the Cooper Industries, Ltd. Class A common shares and the associated Old Rights were listed on the New York Stock Exchange (the "NYSE") under the symbol "CBE" and registered under Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In connection with the Transaction, Cooper Industries, Ltd.
requested that the NYSE file with the SEC an application on Form 25 to strike
the Cooper Industries, Ltd. Class A common shares and associated Old Rights from
listing on the NYSE and from registration under Section 12(b) of the Exchange
Act. Cooper Industries, Ltd. expects to file a Form 15 with the SEC to terminate
any of its remaining reporting obligations under the Exchange Act with respect
to its Class A common shares and associated Old Rights.
The Cooper Industries plc ordinary shares and the associated Rights are
deemed registered under Section 12(b) of the Exchange Act pursuant to
Rule 12g-3(a) under the Exchange Act. The Cooper Industries plc ordinary shares
and associated Rights began trading on the NYSE under the symbol "CBE," the same
symbol under which the Cooper Industries, Ltd. Class A common shares and
associated Old Rights previously traded, on September 9, 2009.
The issuance of ordinary shares by Cooper Industries plc in the Transaction
was exempt from registration under the Securities Act of 1933, as amended (the
"Securities Act"), under Section 3(a)(10) of the Securities Act.
Under Irish law, Cooper Industries plc requires "distributable reserves" in
its unconsolidated balance sheet prepared in accordance with the Irish Companies
Acts 1963-2009 to enable it to make distributions (including the payment of cash
dividends) to its shareholders, or to redeem or buy back shares. Immediately
following implementation of the Transaction, the unconsolidated balance sheet of
Cooper Industries plc did not contain any distributable reserves. We are seeking
to create distributable reserves, which requires the approval of the Irish High
Court. Such approval is expected to be obtained within six weeks of the
consummation of the Transaction.
On September 9, 2009, Cooper Industries plc issued a press release announcing
the completion of the Transaction. A copy of the press release is filed herewith
as Exhibit 99.1 and incorporated into this Item 8.01 by reference.
Item 9.01. Financial Statements and Exhibits.
For the list of exhibits, see the Exhibit Index to this Current Report on
Form 8-K, which is incorporated into this Item 9.01 by reference.
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