UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
(Amendment No. 1)
Magnetek, Inc.
(Name of Subject Company)
Magnetek, Inc.
(Names of Person(s) Filing Statement)
Common Stock, par value $0.01
(Title of Class of Securities)
559424403
(CUSIP Number of Class of Securities)
Peter M. McCormick
President and Chief Executive Officer
Magnetek, Inc.
N49 W13650 Campbell Drive
Menomonee Falls, Wisconsin 53051
(262) 783-3500
(Name, address and telephone number of person authorized to receive notices and communications
on behalf of the person(s) filing statement)
With copies to:
| Scott S. Cramer Vice President, General Counsel and Corporate Secretary Magnetek, Inc. N49 W13650 Campbell Drive Menomonee Falls, Wisconsin 53051 (262) 783-3500 |
Patrick G. Quick Spencer T. Moats Foley& Lardner LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202-5306 (414) 271-2400 |
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 1 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 of Magnetek, Inc., a Delaware corporation (the “Company” or “Magnetek”), initially filed with the Securities and Exchange Commission on August 5, 2015 (the “Schedule 14D-9”). The Schedule 14D-9 and this Amendment relate to the tender offer by Megatron Acquisition Corp., a Delaware corporation (“Purchaser”) and wholly owned subsidiary of Columbus McKinnon Corporation, a New York corporation (“Parent”), as disclosed in the Tender Offer Statement on Schedule TO filed by Parent and Purchaser with the SEC on August 5, 2015 (as amended and supplemented from time to time, the “Schedule TO”), to purchase all of the issued and outstanding shares of the Company’s common stock, par value $0.01 per share (the “Shares”), at a purchase price of $50.00 per share, net to the seller in cash, without interest, subject to any withholding of taxes required by applicable law, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 5, 2015 (the “Offer to Purchase”), and in the related Letter of Transmittal for Shares and Letter of Transmittal for Employee Restricted Shares (which, together with the Offer to Purchase, constituted the “Offer”). The Offer to Purchase and Letters of Transmittal were filed as Exhibits (a)(1)(A), (a)(1)(B) and (a)(1)(C), respectively, to the Schedule TO.
Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains unchanged and is incorporated by reference as relevant to the items in this Amendment. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Schedule 14D-9.
Amendments to Schedule 14D-9
Item 2 of the Schedule 14D-9 is hereby amended and supplemented by adding the following after the fourth paragraph of subsection “Tender Offer”:
“On August 24, 2015, Parent, the Purchaser and Magnetek entered into a letter agreement (the “Letter Agreement”) amending the Merger Agreement, to provide for the purchase (the “UK Purchase”) by Columbus McKinnon Corporation Limited, a wholly owned subsidiary of Parent (“CMCO UK”), from Magnetek of all of the outstanding shares of Magnetek (UK) Limited, a wholly owned subsidiary of Magnetek. The purchase price to be paid by CMCO UK to Magnetek in the UK Purchase will be £1,200,000 and the closing of the UK Purchase is expected to take place immediately prior to the acceptance for payment of Shares in the Offer.
The foregoing summary of the terms of the Letter Agreement is qualified in its entirety by reference to the Letter Agreement itself, which is incorporated herein by reference and a copy of which has been filed as an exhibit hereto.”
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following after the following at the end of the subsection “Regulatory Approvals–Antitrust Laws”:
“Under the provisions of the HSR Act applicable to the Offer and the Merger, the waiting period under the HSR Act applicable to the Offer and the Merger expired at 11:59 p.m., New York City time, on August 20, 2015, which was the 15th calendar day following the submission of the Company’s HSR Filing.”
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit:
| (a)(9) | Letter Agreement Amending Merger Agreement, dated August 24, 2015 by and among Columbus McKinnon Corporation, Megatron Acquisition Corp. and Magnetek, Inc. | |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: August 25, 2015
| Magnetek, Inc. | ||
| By: | /s/ Marty J. Schwenner | |
| Marty J. Schwenner | ||
| Vice President and Chief Financial Officer | ||
Exhibit (a)(9)
August 24, 2015
VIA FACSIMILE
Magnetek, Inc.
N49 W13650 Campbell Drive
Menominee Falls, Wisconsin 53051
Attention: Scott S. Cramer
Facsimile: (262) 783-3509
Copies to:
| Foley & Lardner LLP | ||
| 777 East Wisconsin Avenue | ||
| Milwaukee, Wisconsin 53202 | ||
| Attention: | Patrick G. Quick | |
| Spencer T. Moats | ||
| Facsimile: | (414) 297-4900 | |
Dear Scott:
Reference is hereby made to that certain Agreement and Plan of Merger, dated as of July 26, 2015 (the “Merger Agreement”), by and among Magnetek, Inc., a Delaware corporation (the “Company”), Columbus McKinnon Corporation, a New York corporation (“Parent”), and Megatron Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”). The parties to the Merger Agreement desire to make certain agreements and amendments relating thereto in accordance with Section 10.5 of the Merger Agreement, as more fully described and subject to the terms and conditions set forth in this letter (this “Letter Agreement”). All capitalized terms used but not defined in this Letter Agreement have the respective meanings ascribed to such terms in the Merger Agreement.
Pursuant to Section 10.5 of the Merger Agreement, the Company, Parent and Merger Sub hereby amend the Merger Agreement as follows:
1. Amendment to Article 2; New Section 2.11. Article 2 of the Merger Agreement is hereby amended by adding a new Section 2.11 to read, in its entirety, as follows:
“Section 2.11 UK Purchase.
(a) Immediately prior to the Acceptance Time, if all the conditions of the Offer set forth in Annex A have been satisfied or waived of as of the Expiration Date, upon the terms and subject to the conditions of this Agreement, the Company agrees to sell, convey and transfer to Columbus McKinnon Corp. Limited, a wholly owned subsidiary of Parent (“CMCO UK”), all of the issued
and outstanding shares of capital stock or other equity interests of the Company’s Subsidiary, Magnetek (UK) Limited (“MAG UK”), in exchange for CMCO UK’s payment to the Company, by wire transfer of immediately available funds, of an aggregate purchase price of £1,200,000 (such purchase and sale, the “UK Purchase”). The Company shall transfer and deliver good and valid title to such shares of MAG UK free and clear of all Liens other than any Liens that the Company has previously disclosed in the Company SEC Reports filed with or furnished to the SEC on or after December 31, 2012 and prior to the date of the Merger Agreement or otherwise previously disclosed to Parent and Merger Sub.
(b) The closing of the UK Purchase shall take place at the place of the Closing. On the Closing Date, or on such other date as Parent and the Company may agree to in writing, Parent, the Company, and CMCO UK shall cause the appropriate purchase agreements, deeds, share transfer forms, stock certificates, powers of attorney, instruments of conveyance, assignments, assurances or any other actions or things that are necessary or desirable to give effect to and consummate the UK Purchase, and to vest, perfect or confirm of record or otherwise in CMCO UK its right, title or interest in, to or under the shares of MAG UK, as may be reasonably determined by Parent, or as may reasonably be necessary or appropriate in order to carry out the purposes and intent of this Section 2.11, including by using its reasonable best efforts to cause its Subsidiaries and Affiliates to take any such actions. For the avoidance of doubt, nothing in this Section 2.11 shall create a condition to or otherwise affect any party’s obligation to effect the Offer or the Merger.”
2. Amendment to Index of Defined Terms. The Index of Defined Terms is hereby amended by adding the following terms in the appropriate alphabetical order:
| “CMCO UK” |
2.11 | (a) | ||
| “MAG UK” |
2.11 | (a) | ||
| “UK Purchase” |
2.11 | (a) |
The Company, Parent and Merger Sub acknowledge that the Merger Agreement, as hereby amended, remains in full force and effect and is hereby ratified, confirmed and reaffirmed in all respects, except as expressly modified herein. This Letter Agreement shall be deemed to be part of, and a modification to, the Merger Agreement, and shall be governed by all the terms and provisions of the Merger Agreement. Upon the effectiveness of this Letter Agreement, each reference in the Merger Agreement to “hereunder,” “herein,” “hereof,” or words of similar import, shall mean and be a reference to the Merger Agreement as amended by this Letter Agreement.
The provisions of Sections 10.4 (Notices), 10.5 (Amendment), 10.7 (Entire Agreement, Parties in Interest), 10.8 (Assignment; Binding Effect), 10.9 (Governing Law; Consent to Jurisdiction; Waiver of Jury Trial), 10.10 (Severability), 10.11 (Enforcement of Agreement), 10.12 (Counterparts) and 10.14 (Interpretation) of the Merger Agreement apply hereto mutatis mutandis.
2
If the above correctly reflects our understanding and agreement with respect to the foregoing matters, please so confirm by signing and returning the enclosed copy of this Letter Agreement.
| Sincerely, | ||
| COLUMBUS MCKINNON CORPORATION | ||
| By: | /s/ Timothy T. Tevens | |
| Name: | Timothy T. Tevens | |
| Title: | President and Chief Executive Officer | |
| MEGATRON ACQUISITION CORP. | ||
| By: | /s/ Timothy T. Tevens | |
| Name: | Timothy T. Tevens | |
| Title: | President and Chief Executive Officer | |
Agreed and Accepted:
| MAGNETEK, INC. | ||
| By: | /s/ Peter M. McCormick | |
| Name: | Peter M. McCormick | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Letter Agreement Amending Merger Agreement]