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): |
April 14, 2008 |
The Manitowoc Company, Inc.
|
(Exact name of registrant as specified in its charter) |
Wisconsin
|
1-11978
|
39-0448110
|
(State or other |
(Commission File |
(IRS Employer |
jurisdiction of |
Number) |
Identification No.) |
incorporation) |
2400 S. 44th Street, Manitowoc, Wisconsin 54221-0066
|
(Address of principal executive offices, including ZIP code) |
(920) 684-4410
|
(Registrants telephone number, including area code) |
_________________
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 C.F.R. §230.425) |
[ ] |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 C.F.R. §240.14a-12) |
[ ] |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 C.F.R.
§240.14d-2(b)) |
[ ] |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 C.F.R.
§240.13e-4(c)) |
Item 1.01. |
Entry
into a Material Definitive Agreement |
On
April 14, 2008, The Manitowoc Company, Inc. (Manitowoc) entered into an
Implementation Agreement (the Implementation Agreement) with Enodis plc
(Enodis), a company registered in England and Wales. Pursuant to the
Implementation Agreement, Manitowoc issued an announcement (the Rule 2.5
Announcement) pursuant to Rule 2.5 of the City Code on Takeovers and Mergers (the
City Code) disclosing that Manitowoc and Enodis had agreed on the terms of a
recommended cash offer (the Offer) to be made by MTW County Limited
(BidCo), a wholly-owned subsidiary of Manitowoc, for the acquisition (the
Acquisition) of all of the issued and to be issued ordinary share capital of
Enodis, for cash of 258 pence per share. In addition, Enodis shareholders on the register
at the applicable record date will be entitled to receive a dividend of two pence per
share in lieu of an interim dividend in respect of the financial year ending
September 30, 2008. The Offer values Enodis existing issued share capital at
approximately £948 million (approximately $1.89 billion based upon the
current exchange rate).
The
parties intend that the Offer be implemented by way of a Court-sanctioned scheme of
arrangement (the Scheme) under Part 26 of the UK Companies Act 2006. A scheme
of arrangement is a Court procedure that would enable BidCo to become the owner of all of
the share capital of Enodis. The Scheme will require the approval at a Court Meeting of a
majority in number of the holders of Scheme Shares (or any relevant class or
classes thereof), present and voting either in person or by proxy, at the Court Meeting
representing three-fourths or more in value of the Scheme Shares voted by such holders.
Scheme Shares are the Enodis shares (a) in issue at the date of the Scheme
document, (b) issued after the date of the Scheme document and prior to the voting
record time in respect of the Court Meeting, and (c) issued on or after the voting
record time in respect of the Court Meeting and on or prior to the record time for the
reduction in Enodis share capital associated with the Scheme (the Capital
Reduction Record Time) either on terms that the original or any subsequent holders
thereof shall be bound by the Scheme or in respect of which the holder thereof shall have
agreed in writing to be bound by the Scheme. Scheme Shares, however, do not include any
Enodis shares beneficially owned by Manitowoc or certain subsidiaries of Manitowoc or held
by Enodis in treasury at or prior to the Capital Reduction Record Time. In addition, the
Scheme will require the approval of a special resolution (the General Meeting
Resolutions) approving the reduction in capital and certain consequential amendments
to Enodis articles of association at an extraordinary general meeting of Enodis
shareholders (the General Meeting) by at least three-fourths of the votes
cast. If the Scheme becomes effective, it will be binding on all Enodis shareholders,
irrespective of whether they attended or voted at the Court Meeting or the General
Meeting. Under the Implementation Agreement, in lieu of the Scheme, Manitowoc reserves the
right to implement the Acquisition by means of a takeover offer in accordance with the
Rule 2.5 Announcement, provided that either the takeover offer is made with the prior
written consent of Enodis (such consent not to be unreasonably withheld or delayed) or the
takeover offer is announced after the board of directors of Enodis (the Enodis
Board) has withdrawn or adversely modified or qualified its recommendation to Enodis
shareholders to vote in favor of the Scheme and the General Meeting Resolutions.
As
an inducement to Manitowoc to commit time and personnel to the Acquisition, under the
Implementation Agreement, Enodis has agreed to pay Manitowoc a fee equal to
£10 million if (a) the Enodis Board does not unanimously and without
qualification recommend shareholders to vote in favor of the Scheme and the General
Meeting Resolutions (or, if applicable, to accept a takeover offer) or the Enodis Board
(or any committee of the Enodis Board) at any time withdraws or adversely modifies or
qualifies such recommendation or decides not to proceed with the Scheme or (b) a third
party transaction is announced prior to the Acquisition lapsing or being withdrawn, and
such third party transaction subsequently becomes or is declared wholly unconditional or
is completed.
-2-
Under
the Implementation Agreement, Manitowoc and Enodis have agreed to make all requisite
antitrust filings as promptly after the date of the Rule 2.5 Announcement as practicable
and thereafter to cooperate with one another so as to achieve all antitrust clearances as
soon as is reasonably practicable. Manitowoc has agreed to take all steps necessary to
obtain the United States and European Union antitrust clearances by October 11, 2008
(the Long Stop Date). Manitowoc has committed in the Implementation Agreement
to effect the sale or disposition of such assets or businesses as may be required to be
divested or take other required action in order to obtain antitrust clearances. If certain
antitrust conditions specified in the Implementation Agreement and the Rule 2.5
Announcement are not satisfied on or before the Long Stop Date, then Manitowoc has agreed
to pay Enodis a termination fee of $50,000,000 (the Termination Fee) unless,
prior to the Long Stop Date, (a) Enodis has materially breached specified obligations
under the Implementation Agreement, Manitowoc has complied with specified obligations
under the Implementation Agreement and Enodis breach has materially contributed to
the non-satisfaction of any of the specified antitrust conditions prior to the Long Stop
Date, (b) the Enodis Board has withdrawn or adversely modified or qualified its
recommendation to Enodis shareholders to vote in favor of the Scheme and the General
Meeting Resolutions (or, if applicable, to accept a takeover offer), or (c) the
Acquisition has lapsed or has been withdrawn by Manitowoc invoking any condition other
than the specified antitrust conditions.
The
Offer is subject to satisfaction or waiver of certain conditions set forth in the Rule 2.5
Announcement, including (a) the Scheme becoming unconditional and effective by not later
than November 10, 2008, or, if Manitowoc elects (with the consent of the panel on
Takeovers and Mergers (the Panel)), January 31, 2009, or such later date as
Enodis and Manitowoc may, with the consent of the Panel, agree and (if required) the Court
may allow; (b) all filings having been made and the expiration, lapse or termination of
all or any appropriate waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the regulations thereunder; (c) the European Commission
taking a decision (or being deemed to have taken a decision) pursuant to the Council
Regulation (EC) 139/2004 (as amended) (the EC Merger Regulation) (i) that it
will not initiate proceedings under Article 6(1)(c) of the EC Merger Regulation in
relation to the Offer or any matter arising from or relating to the Offer (a
Non-Initiation Decision) or (ii) to refer the whole or part of the Offer to
the competent authorities of one or more Member States under Article 9(3) of the EC
Merger Regulation, and (A) each such authority taking a decision with equivalent effect to
a Non-Initiation Decision with respect to those parts of the Offer referred to it and (B)
the European Commission taking any Non-Initiation Decision with respect to any part of the
Offer retained by it; (d) clearance having been obtained (or deemed to have been obtained)
in relation to the Offer from any other relevant antitrust regulator; (e) certain
third parties not having taken certain steps material in the context of the Offer that
would or might reasonably be expected to have specified effects on the Offer, BidCo,
Manitowoc or Enodis (or Manitowoc or Enodis plus certain of their respective affiliates
taken as a whole) and all applicable time periods for such steps having expired, lapsed or
been terminated; (f) compliance with certain regulatory and contractual obligations;
(g) the absence of certain undisclosed provisions in instruments to which Enodis or
certain of its affiliates or their respective assets are or may be bound or subject that
would or might reasonably be expected to result in specified effects on Enodis and certain
of its affiliates taken as a whole; (h) the absence of specified undisclosed actions by or
the occurrence of specified events with respect to Enodis or certain of its affiliates
since September 29, 2007; and (i) Manitowoc not having discovered specified
undisclosed information concerning Enodis and certain of its affiliates. Pursuant to the
Implementation Agreement, Manitowoc has agreed that it may invoke any of the preceding
conditions only if the Panel would permit Manitowoc to invoke such condition with the
effect that Manitowoc would not be required to proceed with the Acquisition. There can be
no assurance that the Panel would permit Manitowoc to invoke any condition with such
effect.
-3-
The
Implementation Agreement will terminate if: (a) the Termination Fee becomes due and
payable; (b) subject to its compliance with certain obligations, Manitowoc gives notice in
writing to Enodis following a material breach of Enodis obligations under the
Implementation Agreement; (c) Manitowoc gives notice in writing to Enodis if a third
party transaction becomes or is declared wholly unconditional or is completed; (d) the
Scheme is not sanctioned by the shareholders of Enodis or the General Meeting Resolutions
are not approved as contemplated by the Implementation Agreement; (e) any Court order
is not granted or the effective date of the Scheme or takeover offer, as the case may be,
has not occurred on or before November 10, 2008, or, if Manitowoc elects (with the
consent of the panel on Takeovers and Mergers (the Panel)), January 31, 2009,
or such later date as Enodis and Manitowoc may, with the consent of the Panel, agree and
(if required) the Court may allow; or (f) Manitowoc elects to implement the
Acquisition by way of a takeover offer governed by the City Code and the takeover offer,
once announced under Rule 2.5 of the City Code, lapses in accordance with its terms or is
withdrawn or not made.
Manitowoc
has obtained committed funds to finance the Offer by means of a credit agreement entered
into on April 14, 2008. For a description of the credit agreement, see Item 2.03 below.
The
foregoing description of the Implementation Agreement and the Rule 2.5 Announcement does
not purport to be complete and is qualified in its entirety by reference to the
Implementation Agreement and the Rule 2.5 Announcement, which are attached as Exhibits 2.1
and 2.2, respectively, to this Current Report on Form 8-K. It is expected that the Scheme
document will be sent to Enodis shareholders as soon as reasonably practicable.
Item 2.03 |
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of a Registrant |
On
April 14, 2008, Manitowoc entered into a $2,400,000,000 Credit Agreement (the Credit
Agreement) with JPMorgan Chase Bank, N.A., as Administrative Agent, Deutsche Bank AG
New York Branch and Morgan Stanley Senior Funding, Inc., as Syndication Agents, and BNP
Paribas as Documentation Agent. The obligations of the lenders to make loans and of the
issuing bank to issue letters of credit under the Credit Agreement will not become
effective until the effective date of the Scheme or, in the case of a takeover offer, the
date on which the takeover offer has become or is declared unconditional in all respects.
Until such time as Manitowoc borrows under the Credit Agreement, Manitowocs existing
$300,000,000 Amended and Restated Credit Agreement, dated as of December 14, 2006, will
remain in effect.
The
Credit Agreement includes four different loan facilities. The first is a revolving
facility in the amount of $400,000,000, with a maturity of five years from the date of the
initial borrowing. The revolving facility includes a $200,000,000 subfacility for letters
of credit, and provisions for up to $300,000,000 of revolving loans under the Credit
Agreement to be made in alternative currencies. The second facility is a Term Loan A in
the amount of $900,000,000, which will be amortized over a period of five years. The third
facility is a Term Loan X in the amount of $300,000,000 which has a maturity of 18 months.
The fourth facility is a Term Loan Y in the amount of $800,000,000 which has a maturity of
six years. Manitowoc is obligated to prepay the three term loan facilities from the net
proceeds of asset sales, casualty losses, equity offerings, and new indebtedness for
borrowed money, and from a portion of its excess cash flow, subject to certain exceptions.
Loans
made under the Credit Agreement will initially bear interest at 3 percent in excess of a
reserve adjusted LIBOR rate, or 1.50 percent in excess of an alternate base rate, at
Manitowocs option. Manitowoc will also pay a commitment fee of 0.50 percent per
annum for the first 120 days, and 0.75 percent per annum after the 120th day; provided
that the commitment fee with respect to the revolving commitment will be 0.50 percent per
year after the initial borrowing date. Manitowoc is also obligated to pay certain
discounts, fees and expenses to the lenders, and to permit the lenders to make certain
adjustments in the pricing and other terms of the facilities to the extent such
adjustments are necessary to achieve a successful syndication.
-4-
Loans
made under the Credit Agreement will be secured by substantially all of the assets of, and
guaranteed by, the material direct and indirect domestic subsidiaries of Manitowoc and
Enodis, and secured by 65 percent of the stock of certain foreign subsidiaries of
Manitowoc. Certain French subsidiaries of Manitowoc have also entered into limited
guaranties and pledge agreements. The Credit Agreement also requires Manitowoc to provide
additional collateral to the lenders under the Credit Agreement in certain circumstances.
The
Credit Agreement also contains various representations and warranties and affirmative and
negative covenants of Manitowoc while the Credit Agreement is outstanding, and provisions
for the acceleration of loans made under the Credit Agreement in the event of a default.
The
foregoing description of the Credit Agreement does not purport to be complete and is
qualified in its entirety by reference to the Credit Agreement, which is attached as
Exhibit 4.1 to this Current Report on Form 8-K.
Item 9.01. |
Financial
Statements and Exhibits. |
|
(d) |
Exhibits.
The following exhibits are being filed herewith: |
|
(2.1) |
Implementation
Agreement, dated April 14, 2008, by and between The Manitowoc Company, Inc. and
Enodis plc. Schedules and exhibits to the Implementation Agreement have not
been filed herewith. Manitowoc agrees to furnish a copy of any omitted schedule
or exhibit to the Commission upon request. |
|
(2.2) |
Rule
2.5 Announcement. |
|
(4.1) |
Credit
Agreement, dated as of April 14, 2008, by and among The Manitowoc Company,
Inc., the subsidiary borrowers named therein, JPMorgan Chase Bank, N.A., as
administrative agent, and the lenders named therein. Schedules and exhibits to
the Credit Agreement have not been filed herewith. Manitowoc agrees to furnish
a copy of any omitted schedule or exhibit to the Commission upon request. |
-5-
Forward Looking
Statements
This
Current Report on Form 8-K and the exhibits hereto include forward-looking
statements intended to qualify for the safe harbor from liability under the Private
Securities Litigation Reform Act of 1995. These statements are based on the current
expectations of the management of Manitowoc and are subject to uncertainty and changes in
circumstances. The forward-looking statements contained or incorporated by reference
herein, and the exhibits hereto, include statements about the expected effects on
Manitowoc of the Offer, the expected timing and scope of the Offer, anticipated earnings
enhancements, estimated cost savings and other synergies, costs to be incurred in
achieving synergies, potential divestitures and other strategic options and all other
statements in this Current Report on Form 8-K and the exhibits hereto other than
statements of historical fact. Forward-looking statements include, without limitation,
statements typically containing words such as intends, expects,
anticipates, targets, estimates and words of similar
import. By their nature, forward-looking statements are not guarantees of future
performance or results and involve risks and uncertainties because they relate to events
and depend on circumstances that will occur in the future. There are a number of factors
that could cause actual results and developments to differ materially from those expressed
or implied by such forward-looking statements. These factors include, but are not limited
to, unanticipated issues associated with the satisfaction of the conditions precedent to
the Offer; issues associated with obtaining necessary regulatory approvals and the terms
and conditions of such approvals; the inability to integrate successfully Enodis within
Manitowoc or to realize synergies from such integration within the time periods
anticipated; and changes in anticipated costs related to the acquisition of Enodis.
Additional factors that could cause actual results and developments to differ materially
include, among others:
|
|
unanticipated
changes in revenue, margins, costs, and capital expenditures; |
|
|
issues
associated with new product introductions; |
|
|
matters
impacting the successful and timely implementation of ERP systems; |
|
|
foreign
currency fluctuations; |
|
|
increased
raw material prices; |
|
|
unexpected
issues associated with the availability of local suppliers and skilled labor; |
|
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the
risks associated with growth; |
|
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geographic
factors and political and economic risks; |
|
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actions
of Manitowoc competitors; |
|
|
changes
in economic or industry conditions generally or in the markets served by Manitowoc
and Enodis; |
|
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the
state of financial and credit markets; |
|
|
unanticipated
issues associated with refresh/renovation plans by national restaurant accounts; |
|
|
efficiencies
and capacity utilization of facilities; |
|
|
issues
related to new facilities and expansion of existing facilities; |
|
|
work
stoppages, labor negotiations, and labor rates; |
|
|
government
approval and funding of projects; |
|
|
the
ability of customers to receive financing; and |
|
|
the
ability to complete and appropriately integrate restructurings, consolidations,
acquisitions, divestitures, strategic alliances, and joint ventures. |
Information
on the potential factors that could affect Manitowoc is also included in its filings with
the Securities and Exchange Commission, including, but not limited to, its Annual Report
on Form 10-K for the fiscal year ended December 31, 2007. Manitowoc undertakes no
obligation to update or revise forward-looking statements, whether as a result of new
information, future events or otherwise. Forward-looking statements only speak as of the
date on which they are made.
-6-
SIGNATURES
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 hereunto duly authorized.
|
THE MANITOWOC COMPANY, INC. |
Date: April 17, 2008 |
By: /s/ Carl J. Laurino |
|
Carl J. Laurino |
|
Senior Vice President & Chief |
|
Financial Officer |
-7-
THE MANITOWOC COMPANY,
INC.
FORM 8-K
EXHIBIT INDEX
Exhibit |
|
Number |
Description |
(2.1) |
Implementation
Agreement, dated April 14, 2008, by and between The Manitowoc Company,
Inc. and Enodis plc. Schedules and exhibits to the Implementation
Agreement have not been filed herewith. Manitowoc agrees to furnish a copy
of any omitted schedule or exhibit to the Commission upon request. |
(2.2) |
Rule
2.5 Announcement. |
(4.1) |
Credit
Agreement, dated as of April 14, 2008, by and among The Manitowoc Company,
Inc., the subsidiary borrowers named therein, JPMorgan Chase Bank, N.A.,
as administrative agent, and the lenders named therein. Schedules and
exhibits to the Credit Agreement have not been filed herewith. Manitowoc
agrees to furnish a copy of any omitted schedule or exhibit to the
Commission upon request. |
-8-