- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
March 03 2010 - 4:04PM
Edgar (US Regulatory)
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):
March 2, 2010
SouthWest
Water Company
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(Exact
name of Registrant as specified in its charter)
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Delaware
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0-8176
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95-1840947
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(State
or other jurisdiction
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(Commission
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(I.R.S.
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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One Wilshire Building, 624
South Grand Avenue, Suite 2900, Los Angeles, California
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90017-3782
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(Address
of principal executive offices)
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(Zip
code)
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Registrants telephone number,
including area code:
(213)
929-1800
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:
o
Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
x
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o
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
SouthWest Water Company (the Company) has entered
into an Agreement and Plan of Merger, dated as of March 2, 2010 (the Merger
Agreement) with SW Merger Acquisition Corp. (Parent) and SW Merger Sub
Corp., a direct wholly-owned subsidiary of Parent (Merger Sub). Parent and Merger Sub are entities controlled
by institutional investors advised by J.P. Morgan Asset Management (IIF) and
Water Asset Management, L.L.C. (WAM).
The Merger Agreement contemplates that Merger Sub will
be merged with and into the Company, with the Company continuing as the
surviving corporation (the Surviving Corporation) in such merger as a direct
wholly-owned subsidiary of Parent (the Merger), and each outstanding share of
common stock of the Company will be converted in the Merger into the right to
receive $11.00 per share in cash (the Merger Consideration).
The Company has made
various representations and warranties and covenants in the Merger Agreement,
including, among others, not to (a) solicit proposals relating to
alternative business combination transactions or (b) subject to certain
exceptions that permit the board of directors to comply with its fiduciary
duties, enter into discussions concerning, or provide confidential information
in connection with, alternative business combination transactions.
Subject to certain exceptions that permit the board of directors to comply with
its fiduciary duties, the Companys board of directors has resolved to
recommend that the Companys stockholders vote in favor of and adopt and
approve the Merger and the Merger Agreement. The Merger Agreement also
includes covenants pertaining to the operation of the Companys business
between execution of the Merger Agreement and the closing of the Merger.
Consummation of the
Merger is subject to various conditions, including, among others, the approval
and adoption of the Merger Agreement by the Companys stockholders, the absence
of certain legal impediments to consummation of the Merger, and the receipt of
certain regulatory approvals. The Merger
is not conditioned on the receipt or financing by the Parent, and each of IIF
and WAM have executed equity commitment letters with the Parent under which they
have committed to provide Parent with the funding necessary to pay the full
Merger Consideration due under the Merger Agreement.
The Merger Agreement
contains certain termination rights and provides that upon the termination of
the Merger Agreement under specified circumstances, the Company may be required
to pay Parent a termination fee equal to 3% of the aggregate Merger
Consideration, or the Parent may be required to pay the Company a termination
fee equal to 5% of the aggregate Merger Consideration. In addition, in certain circumstances where
the Merger Agreement is terminated, the Company is required to reimburse
Parent, or the Parent is required to reimburse the Company, for fees and
expenses incurred in connection with the Merger Agreement, up to a maximum in
either case of $3.0 million (provided that any such fee and expense
reimbursement will be credited against any termination fee that is payable).
In connection with the execution of the Merger
Agreement, the Company on the one hand, and Parent, IIF and WAM on the
other (collectively, the Investor), executed a binding letter of intent (the Binding
Letter) under which the Investor is to purchase 2,700,000 shares of the
Companys common stock at a purchase price of $6.00 per share, for an aggregate
purchase price of $16.2 million (the PIPE Investment). The PIPE Investment is subject to the
negotiation and execution of mutually acceptable definitive agreements on terms
consistent with those set forth in the Binding Letter, and is expected to be
completed within 10 business days following the execution of the Merger
Agreement. The Investor will be entitled
to certain rights in connection with the PIPE Investment, including the
appointment of a designee to serve on the Board of Directors of the
Company. As the offer and sale of the
shares of common stock in the PIPE Investment will not be registered under the
Securities Act of 1933 or applicable state securities laws, the shares of
common stock may not be offered or sold in the United States absent
registration or an applicable exemption from such registration
requirements. This disclosure is being issued pursuant to and in
accordance with Rule 135c under the Securities Act and does not constitute
an offer to sell or a solicitation of an offer to buy the shares of common
stock in the PIPE Investment.
Following the Merger, the
Company will cease to be a reporting company under the Securities Exchange Act
of 1934, as amended, and its Common Stock will cease to be traded on the NASDAQ
Global Select Market.
The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its
entirety by reference to the full text of the Merger Agreement, which is filed
as
Exhibit 2.1
hereto. The
Merger Agreement is included to provide investors and security holders with
information regarding its terms. It is
not intended to provide any other factual information about the Company or the
other parties thereto. The Merger
Agreement contains representations and warranties the parties thereto made to
each other and are solely for the benefit of each other. The assertions
embodied in those representations and warranties are qualified by information
in confidential disclosure schedules that the parties have exchanged in
connection with signing the Merger Agreement. Accordingly, investors and
security holders should not rely on the representations and warranties as
characterizations of the actual state of facts, since they were only made as of
the date of the Merger Agreement and are modified by the underlying disclosure
schedules. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in
the Companys public disclosures. The
Company agrees to furnish
supplementally a copy of any omitted disclosure schedule to the Merger
Agreement to the Securities and Exchange Commission upon request.
Forward-Looking Statements
This document contains forward-looking
statements within the meaning of the Private Securities Litigation Reform Act
of 1995. These statements, including, but not limited to, statements relating
to the proposed transaction, involve risks and uncertainties, as well as
assumptions that, if they prove incorrect or never materialize, could cause the
results of the Company to differ materially from those expressed or implied by
such forward-looking statements. For
instance, the closing of the transaction may be delayed, or may never
occur. Actual results may differ materially
from the expectations expressed in forward-looking statements due to changes
in regulatory, political, weather, economic, business, competitive, market,
environmental and other factors. More detailed information about these factors
is contained in the Companys filings with the Securities and Exchange
Commission, including under the caption Risk Factors in the Companys Annual
Report on Form 10-K for the year ended December 31, 2008. The Company
assumes no obligation to update these forward-looking statements to reflect any
change in future events.
Additional Information
In connection with the
proposed transaction, the Company will file a proxy statement with the
Securities and Exchange Commission (SEC). Before making any voting or
investment decision, investors and security holders are urged to carefully read
the entire proxy statement and any other relevant documents filed with the SEC,
as well as any amendments or supplements to those documents, because they will
contain important information about the proposed transaction. A definitive
proxy statement will be sent to shareholders in connection with the proposed
transaction. Investors and security holders may obtain a free copy of the proxy
statement (when available) and other documents filed at the SECs website at
www.sec.gov. The proxy statement and such other documents may also be obtained
at no cost from the Company by directing the request to SouthWest Water
Company, 624 S. Grand Avenue, Suite 2900, Los Angeles, CA, 90017,
Attention: Investor Relations, or by going to the Companys website at
www.swwc.com.
The Company and its directors, executive
officers and other members of its management and employees may be deemed to be
participants in the solicitation of proxies from the security holders of the
Company in connection with the proposed transaction. Information concerning the special interests
of these directors, executive officers and other members of the Companys
management and employees in the proposed transaction will be included in the
Companys proxy statement referenced above.
Information regarding the Companys directors and executive officers is
also available in its Annual Report on Form 10-K for the year ended December 31,
2008 and in its proxy statement for its 2009 Annual Meeting of Stockholders,
which documents are filed with the SEC.
These documents are available free of charge at the SECs website at
www.sec.gov and from the Company at the address provided above.
Item 7.01 Regulation FD
Disclosure
On March 3, 2010, the
Company issued a press release announcing the signing of the Merger Agreement,
a copy of which is furnished as
Exhibit 99.1
and is incorporated
herein by reference.
In
accordance with general instruction B.2 to Form 8-K, the information in
this Form 8-K under Item 7.01 (Regulation FD Disclosure) shall be deemed furnished
and not filed with the Securities and Exchange Commission for purposes of Section 18
of the Securities Exchange Act of 1934, as amended, or otherwise subject to the
liabilities of that section.
Item 9.01 Financial Statements and
Exhibits:
(d)
Exhibits
Exhibit
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Number
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Description
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2.1
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Agreement and Plan of Merger, dated March 2, 2010, by and among
SouthWest Water Company, SW Merger Acquisition Corp. and SW Merger Sub Corp.
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99.1*
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Press release, dated March 3, 2010.
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*In
accordance with general instruction B.2 to Form 8-K, the information in
this Form 8-K under Item 7.01 (Regulation FD Disclosure) shall be deemed furnished
and not filed with the Securities and Exchange Commission for purposes of Section 18
of the Securities Exchange Act of 1934, as amended, or otherwise subject to the
liabilities of that section.
SIGNATURE
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.
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SOUTHWEST WATER COMPANY
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(Registrant)
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By:
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/s/ William K. Dix
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Name:
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William K. Dix
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Vice President, General
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Counsel and Corporate Secretary
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Date: March 3, 2010
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EXHIBIT
INDEX
Exhibit
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Number
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Description
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2.1
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Agreement and Plan of Merger, dated March 2, 2010, by and among
SouthWest Water Company, SW Merger Acquisition Corp. and SW Merger Sub Corp.
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99.1*
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Press release, dated March 3, 2010.
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*In
accordance with general instruction B.2 to Form 8-K, the information in
this Form 8-K under Item 7.01 (Regulation FD Disclosure) shall be deemed furnished
and not filed with the Securities and Exchange Commission for purposes of Section 18
of the Securities Exchange Act of 1934, as amended, or otherwise subject to the
liabilities of that section.
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