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FWLT > SEC Filings for FWLT > Form 8-K on 13-Feb-2014All Recent SEC Filings

Show all filings for FOSTER WHEELER AG



Entry into a Material Definitive Agreement, Regulation FD Disclosure, Other Eve

Item 1.01. Entry into a Material Definitive Agreement

Offer by AMEC plc

On February 13, 2014, Foster Wheeler AG ("Foster Wheeler" or the "Company") entered into an Implementation Agreement (the "Implementation Agreement") with AMEC plc ("AMEC") relating to the acquisition of all of the issued and to be issued registered shares, par value CHF 3.00 per share, of Foster Wheeler (the "Shares") by AMEC (the "Acquisition"). On the terms and subject to the conditions of the Implementation Agreement, AMEC will commence an exchange offer (the "Offer") to acquire all of the Shares, pursuant to which each validly tendered Share will be exchanged for a combination (subject to election by each Foster Wheeler shareholder as described below) of (a) $16.00 in cash plus (b) 0.8998 ordinary shares, par value 0.50 per share, of AMEC ("AMEC Shares") or, at the election of such holder, American Depositary Shares ("ADSs") representing such number of AMEC Shares (the aggregate of such consideration per Share, or any greater amount per Share paid pursuant to the Offer being hereinafter referred to as the "Offer Price"), less any taxes required to be withheld.

As soon as reasonably practicable after the Offer closing (or such other date agreed in writing by AMEC and the Company) and provided that at such time AMEC directly or indirectly has acquired or controls and is able to exercise voting rights in respect of at least 90% of the Shares, and provided no other legal impediment exists, AMEC shall launch a squeeze out merger under Swiss law pursuant to which the Company shall merge into a wholly owned subsidiary of AMEC whereby the then-remaining holders of Shares (other than the Company and its affiliates) would receive compensation pursuant to Swiss law as consideration for their outstanding Shares.

In addition, and subject to applicable law and certain terms, AMEC has agreed to use reasonable endeavors to cause the Acquisition to qualify for US federal income tax purposes as a plan of reorganization under the US Internal Revenue Code.

Election Procedures

In the Offer, each Foster Wheeler shareholder will be permitted to specify: (i) the number of Shares with respect to which such holder elects to receive 1.7996 AMEC Shares or ADSs (the "Share Election") and (ii) the number of Shares with respect to which such holder elects to receive $32.00 in cash (the "Cash Election"), subject to adjustment as described below. AMEC will fund approximately $1.62 billion of the total Offer consideration in cash and would satisfy the remaining obligation by issuing approximately 90.9 million AMEC Shares.

Holders may receive a different form of consideration than their original election as a result of proration if, in the aggregate, holders elect to receive more or less than total cash and AMEC Shares available (as described above). Holders failing to make an election will receive such mix of consideration remaining, after giving effect to the preferences (following proration) of those shareholders that have made an election. Holders who otherwise would be entitled to receive a fractional AMEC Share or ADS will instead receive an amount in cash in lieu thereof.

Timeline and Conditions

The Offer will remain open for at least 20 consecutive business days. If any condition to the Offer is not satisfied or waived, AMEC shall extend the Offer in consecutive increments of ten business days (or such other period as the parties may agree) until such time as the conditions to the Offer are satisfied. In addition, AMEC shall extend the Offer for the minimum period required by law, and shall extend the Offer for five business days following satisfaction of all conditions other than the minimum tender condition. AMEC shall not be required to extend the Offer beyond October 31, 2014. AMEC also has the right to (and shall, upon the Company's reasonable request), following the Offer closing, extend the Offer for a reasonable "subsequent offering period" in accordance with Rule 14d-11 under the US Securities Exchange Act of 1934, as amended.

The closing of the Offer is also subject to, among other things, the following conditions: (i) AMEC having received in the Offer valid acceptances for at least 80% of the total number of the Shares outstanding, (ii) customary antitrust approvals for a transaction of this nature (including the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and the European Commission having issued a decision with the effect of clearing the Acquisition) and approval from CFIUS with respect to the transactions contemplated by the Implementation Agreement,
(iii) approval of the Acquisition by AMEC's shareholders, (iv) the admission of the AMEC Shares to be issued in the Offer to the premium listing segment of the Official List of the FCA and to the London Stock Exchange's s main market for listed securities, (v) the absence of any "material adverse effect" (as defined in the Implementation Agreement) on Foster Wheeler, (vi) approval by Foster Wheeler shareholders of certain amendments to its articles of association (relating to the removal of certain transfer restrictions and certain voting limitations with respect to the Shares), (vii) the SEC having declared effective AMEC's Registration Statement on Form F-4 relating to the offer and sale of the AMEC Shares to be issued in the Offer, and such AMEC Shares having been authorized for listing, subject to notice of issuance, on either the New York Stock Exchange or the NASDAQ Stock Market. The Acquisition is not subject to any financing condition.

Board Recommendation; Non-solicitation Matters

In connection with the execution of the Implementation Agreement, each of the Foster Wheeler Board and the AMEC Board unanimously determined that the Implementation Agreement and the Offer are in the best interests of the Company and AMEC, respectively, and fair to their respective shareholders. In addition
(a) Foster Wheeler has agreed that the documents relating to the Offer requiring such disclosure shall incorporate a recommendation from its Board to the Foster Wheeler shareholders to accept the Offer, and not to change its recommendation, except to the extent that the Foster Wheeler Board has determined that it is necessary to do so in order to comply with its fiduciary duties; and (b) AMEC has agreed that the circular relating to its shareholder meeting to approve the transaction will incorporate a recommendation from the AMEC Board to the AMEC shareholders to vote in favor of the Acquisition, and not to change its recommendation, except to the extent that the AMEC Board has determined in good faith that it is necessary to do so in order to comply with its fiduciary duties.

In the Implementation Agreement, Foster Wheeler has agreed, among other things, until the closing of the Offer or the termination of the Implementation Agreement, not to encourage, solicit, initiate or facilitate discussions with . . .

Item 7.01. Regulation FD Disclosure.

On February 13, 2014, Foster Wheeler issued an internal announcement and presented slides in connection with a presentation to its employees relating to the Implementation Agreement. A copy of the internal announcement and the slides are attached as Exhibit 99.01 and 99.02, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Item 8.01. Other Events.

On February 13, 2014, Foster Wheeler issued a press release relating its entry into the Implementation Agreement. A copy of the press release is attached as Exhibit 99.03 to this Current Report on Form 8-K and is incorporated herein by reference. The press release contains statements intended as "forward-looking statements" that are subject to the cautionary statements about forward-looking statements set forth above in this Form 8-K.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits.

No.       Description of Exhibit

2.1       Implementation Agreement relating to the acquisition of Foster Wheeler
          by AMEC, dated as of February 13, 2014, by and between AMEC plc and
          Foster Wheeler AG (schedules and exhibits have been omitted pursuant to
          Item 601(b)(2) of Regulation S-K)

99.01     Internal Announcement to Employees of Foster Wheeler, dated February 13,

99.02     Presentation to Employees of Foster Wheeler, dated February 13, 2014

99.03     Press Release of Foster Wheeler AG, dated February 13, 2014

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