-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KWncdnZgY7nm+Hx6Njx2XUWzR653Q+q7sB1+rU0ihOVcmfS2INtUfGOXW2UiSU4F jCE0fA208FIrxkuW1YJNwQ== 0000950152-97-000933.txt : 19970222 0000950152-97-000933.hdr.sgml : 19970222 ACCESSION NUMBER: 0000950152-97-000933 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19970213 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970213 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHEMPOWER INC CENTRAL INDEX KEY: 0000847595 STANDARD INDUSTRIAL CLASSIFICATION: HAZARDOUS WASTE MANAGEMENT [4955] IRS NUMBER: 341481970 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-17575 FILM NUMBER: 97530387 BUSINESS ADDRESS: STREET 1: 807 E TURKEYFOOT LAKE RD CITY: AKRON STATE: OH ZIP: 44319 BUSINESS PHONE: 2168964202 MAIL ADDRESS: STREET 1: 807 EAST TURKEYFOOT LAKE ROAD CITY: AKRON STATE: OH ZIP: 44319 8-K 1 CHEMPOWER, INC. 8-K 1 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): FEBRUARY 13, 1997 ----------------- (JANUARY 21, 1997) - ------------------- CHEMPOWER, INC. --------------- (Exact Name of Registrant as Specified in its Charter) Ohio 0-17575 34-1481970 ---- ------- ---------- (State or Other (Commission File (IRS Employer Jurisdiction of Number) Identification No.) Incorporation) 807 East Turkeyfoot Lake Road, Akron, Ohio 44319 - ------------------------------------------ ----- (Address of Principal Executive Officers) (Zip Code) Registrant's telephone number, including area code: (330) 896-4202 ---------------- Former Name or Former Address, if Changed Since Last Report: N/A --- 2 ITEM 5. OTHER EVENTS On January 21, 1997, Chempower, Inc. ("Chempower") issued a press release announcing that it has reached an agreement with American Eco Corporation ("American Eco") to extend the outside date by which the merger of a subsidiary of American Eco with and into Chempower must be consummated. Pursuant to the Agreement and Plan of Merger by and among American Eco, Sub Acquisition Corp., and Chempower, dated September 10, 1996 (the "Merger Agreement"), either party had the right to terminate the agreement if the merger was not consummated by January 31, 1997. Pursuant to the agreement announced on January 21, 1997, both parties will waive that termination right until February 28, 1997. Chempower will have the right, however, to terminate the Merger Agreement after February 15, 1997 if American Eco has not secured financing for the transaction by that date. The agreement announced on January 21st also provides that if Chempower terminates the Merger Agreement after February 15th because American Eco does not secure financing, American Eco will be obligated to pay Chempower's expenses in connection with the transaction plus a $1,000,000 termination fee. Finally, Toomas J. Kukk, Chairman, President and CEO of Chempower, and Ernest M. Rochester, Vice Chairman and Secretary, and members of their immediate families, who together own approximately 56% of Chempower's outstanding shares, have also agreed to permit American Eco to defer the payment to them of a portion of the merger consideration of $6.20 per share for up to one year in order to facilitate the securing of financing arrangements for this transaction by American Eco. A copy of the full text of the January 21st press release is filed as an exhibit hereto and is incorporated herein by reference. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION, AND EXHIBITS The following are filed as exhibits to this Form 8-K Current Report: (a) Press Release issued by Chempower on January 21, 1997 (b) Letter Agreement between American Eco, Sub Acquisition Corp., and Chempower, dated January 15, 1997 3 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. CHEMPOWER, INC. Date: February 13, 1996 By:/s/Robert E. Rohr --------------------------- Robert E. Rohr Vice President of Finance and Treasurer (on behalf of the Registrant and as Principal Financial Officer) 4 EXHIBIT INDEX Exhibit Number Exhibit Description - ------ ------------------- 99.1 Press Release issued by Chempower, Inc. on January 21, 1997 99.2 Letter Agreement between American Eco Corporation, Sub Acquisition Corp., and Chempower, Inc., dated January 15, 1997 EX-99.1 2 EXHIBIT 99.1 1 EXHIBIT 99.1 [CHEMPOWER LETTERHEAD] PRESS RELEASE FOR IMMEDIATE RELEASE ON JANUARY 21, 1997 Contact: Robert E. Rohr VP - Finance (330) 896-4202 CHEM #97-1 CHEMPOWER AND AMERICAN ECO AGREE TO EXTEND TIME FOR MERGER AKRON, Ohio (January 21, 1997) - Chempower, Inc. (NASDAQ-NMS: CHEM) and American Eco Corporation (NASDAQ: ECGOF / TSE: ECX) announced today that they have agreed to extend the outside date by which the merger of a subsidiary of American Eco Corporation with and into Chempower must be consummated. The previously announced merger agreement provides for American Eco's acquisition of Chempower at a price of $6.20 per share in cash. The merger agreement gave either party the right to terminate the agreement if the merger was not consummated by January 31, 1997. Pursuant to the agreement reached today, the parties have agreed to waive the termination right until February 28, 1997. The waiver could extend to March 31, 1997 if certain regulatory approvals cannot be obtained by February 28, 1997. Chempower and American Eco Corporation have further agreed to the general terms of a financing arrangement which includes Toomas J. Kukk, Chairman, President and CEO of Chempower, and Ernest M. Rochester, Vice Chairman and Secretary, and members of their immediate families, who together own approximately 56% of Chempower's outstanding shares, deferring the payment to them of a portion of the merger consideration of $6.20 per share for up to one year. As previously announced, an overwhelming majority of Chempower's shareholders voted to approve the merger at a special meeting of shareholders held in Cleveland, Ohio on November 12, 1996. Closing of the merger remains subject to requisite regulatory approvals, the completion of financing, and the satisfaction of certain other conditions as specified in the merger agreement. Chempower is a manufacturing, construction and environmental services company for the power generation industry through subsidiaries in 14 Eastern U.S. states from New Jersey to Indiana in the mid-west and Alabama in the south. Specific products and services include insulation, sheetmetal fabrication, mechanical construction, and asbestos abatement. American Eco is a leading North American provider of single source construction, project management, maintenance, demolition, dismantlement, and environmental remediation services in the refining, petrochemical, government, commercial, manufacturing, and utility industries. EX-99.2 3 EXHIBIT 99.2 1 Exhibit 99.2 [Chempower Letterhead] January 15, 1997 American Eco Corporation Sub Acquisition Corp. 11011 Jones Road Houston, Texas 77070 Attention: Michael E. McGinnis President and CEO Re: Agreement and Plan of Merger by and among American Eco Corporation, Sub Acquisition Corp., and Chempower, Inc., dated as of September 10, 1996 (the "Merger Agreement") Gentlemen: As you are aware, the date upon which the Merger Agreement shall become terminable by either American Eco Corporation ("American Eco") or Chempower, Inc. ("Chempower") in the event that the merger contemplated thereby (the "Merger") has not been consummated is January 31, 1997. In order to enable the shareholders of each of our companies to realize the benefits of this Merger, this letter shall serve to confirm the agreement of American Eco and Chempower to waive certain of the termination rights of each party under the Merger Agreement, for the purposes and subject to the conditions and limitations stated herein. Unless otherwise defined herein, defined terms used herein shall have the meanings ascribed to them in the Merger Agreement. Specifically, subject to the terms, conditions, and limitation stated herein, American Eco and Chempower each agrees to waive until the date (the "Section 7.01(b)(i) Waiver Expiration Date) that is the later of: (i) February 28, 1997; and (ii) the earlier of (A) the date which is two business days after the expiration of the waiting period, or any extensions thereof, applicable to the Merger under the Hart-Scott-Rodino Act and (B) March 31, 1997, 2 its right pursuant to Section 7.01(b)(i) to terminate the Merger Agreement for failure of the Effective Time to occur on or before January 31, 1997. Notwithstanding the immediately preceding sentence, the foregoing waiver by Chempower of its termination right under Section 7.01(b)(i) shall nevertheless expire on February 15, 1997 if American Eco does not file its Notification and Report Form under the Hart-Scott-Rodino Act with the Federal Trade Commission and the Antitrust Division of the Department of Justice by January 27, 1997, and thereafter promptly respond to any written or oral comments or requests for additional information or documenting material by the Federal Trade Commission or the Antitrust Division of the Department of Justice. Chempower further agrees, subject to the terms, conditions, and limitations stated herein, to waive until February 15, 1997 its rights to terminate the Merger Agreement pursuant to Section 7.01(d)(iv) due to (a) American Eco's failure to provide Chempower with reasonable evidence that alternative Financing had been obtained within thirty (30) days of the date upon which American Eco notified Chempower that it had terminated its financing commitment with Canaccord Capital Corporation (which termination occurred on or about October 18, 1996); and (b) the failure of American Eco, in any event, to obtain Financing by January 15, 1997. The purpose of this waiver is to provide American Eco with additional time within which to obtain the financing needed to pay the Merger Consideration, and the purchase price (the "Real Property Purchase Price") to be paid pursuant to the Real Property Purchase Agreement, dated September 10, 1996 (the "Real Property Agreement"), between American Eco and Holiday Properties, an Ohio general partnership ("Holiday"), in full in cash at closing, as contemplated respectively by the Merger Agreement and the Real Property Agreement (the "Transaction Financing"). American Eco shall have until February 15, 1997 to obtain either: (i) the Transaction Financing, or (ii) alternative financing (including at least $10,000,000 in cash, plus financing for payment of interest on the deferred amounts contemplated by clause (B) below, provided by American Eco, from sources independent of Chempower and not to be secured by any interest in the assets or stock of Chempower), on terms and conditions mutually satisfactory to Chempower, the Principal Shareholders (as hereinafter defined) Holiday, and American Eco, that would provide for: (A) payment of the Merger Consideration in full in cash at closing to shareholders and optionholders of Chempower other than Toomas J. Kukk ("Kukk"), Jonathen P. Kukk ("JPK"), Kristina M. Kukk ("KMK"), Ernest M. Rochester ("EMR"), and Mark L. Rochester ("MLR") (Kukk, EMR, MLR, JPK, and KMK are hereinafter referred to as, collectively, the "Principal Shareholders" and, individually, a "Principal Shareholder"); 3 (B) deferral, for a period of no longer than one year and one day from the effective date of the Merger, of a portion of the Merger Consideration payable to the Principal Shareholders and a portion of the Real Property Purchase Price (such deferred portion to be evidenced by promissory notes of Chempower, guaranteed by, and with monthly payments of interest thereon reimbursed monthly to Chempower by, American Eco), the amount of such Merger Consideration and Real Property Purchase Price to be deferred and the terms and conditions of such deferral, including, without limitation, interest (which shall be payable monthly in arrears and computed at a per annum rate of 7% for the first two months following the consummation of the Merger, 8% for the third and fourth months, 9% for the fifth and sixth months, 10% for the seventh through ninth months, and 11% thereafter, until paid in full), prepayment requirements, operating and financial covenants (including, without limitation, provision for the Board of Directors of Chempower, post-Merger, to consist of a total of three directors, two of whom will be designated by the Principal Shareholders and one of whom will be designated by American Eco, and for the Board of Directors of American Eco, post-Merger, to include one director designated by the Principal Shareholders), and security for the deferred amounts (including, at the election of the Principal Shareholders and Holiday, a pledge of all of the outstanding capital stock of Chempower and a lien on and security interest in all of the assets and properties of Chempower (such pledge and lien and security interest to be prior in interest to all other secured creditors, other than secured creditors providing financing on terms and conditions approved by the Principal Shareholders and Holiday for payment of amounts deferred as contemplated by this clause (B) or paid to the Principal Shareholders or Holiday at closing as contemplated by clause (C) below)), to be mutually satisfactory to the Principal Shareholders, Holiday, and American Eco; and (C) payment in cash at closing to the Principal Shareholders and Holiday, respectively, of the portion of the Merger Consideration and the portion of the Real Property Purchase Price not deferred as contemplated by clause (B) above (such alternative financing is hereinafter referred to as the "Alternative Financing"). In the event that the Transaction Financing or the Alternative Financing has not been secured (including, without limitation, by reason of the failure of the Principal Shareholders, Holiday and American Eco to agree on mutually satisfactory terms and conditions for the Alternative Financing) on or before February 15, 1997 ("secured" for this purpose meaning that the obligation of the provider or providers of the financing to provide the financing is subject to no material unfulfilled condition other than the consummation of the Merger), the Merger Agreement shall again become terminable by Chempower on the same terms and with all of the same effects as if Chempower had never waived its right to terminate the Merger Agreement pursuant to Section 7.01(b)(i) or 7.01(d)(iv), and, in the event that Chempower elects to so terminate the Merger Agreement, in addition to the payment of expenses contemplated by Section 7.03 of the Merger Agreement, American Eco will also pay to 4 Chempower a termination fee of $1,000,000 in cash. By entering into this letter agreement, American Eco acknowledges that, without limiting the foregoing sentence, the result shall be that, if the Transaction Financing or the Alternative Financing is not secured on or before February 15, 1997, Chempower shall, from and after February 15, 1997, have the same right to terminate the Merger Agreement and to be reimbursed by American Eco for its actual expenses incurred in connection with the Merger Agreement as it has as of the date hereof (prior to giving effect to this letter), and American Eco acknowledges and agrees that Chempower presently has that right. Moreover, in any event, if the Effective Time of the Merger has not occurred on or before the Section 7.01(b)(i) Waiver Expiration Date, the Merger Agreement shall again become terminable by either party on the same terms and with all of the same effects as if neither party had waived such termination rights under Section 7.01 (b)(i) of the Merger Agreement. In addition, whether or not American Eco secures the Transaction Financing or the Additional Financing on or before February 15, 1997, American Eco shall in no event have any right to terminate the Merger Agreement pursuant to Section 7.01(b)(1) of the Merger Agreement until the day after the Section 7.01(b)(i) Waiver Expiration Date. If you agree with the terms and conditions set forth herein, please acknowledge your acceptance thereof by signing in the space indicated below. Your signature also constitutes American Eco and Sub Acquisition Corp.'s representation and warranty that entering into this letter agreement has been authorized and approved by their respective Boards of Directors and that no further corporate approvals are required in connection therewith. Chempower also represents and warrants to you that its entering into this letter agreement has been authorized and approved by its Board of Directors and that no further corporate approvals are required in connection therewith. As always, we have enjoyed working with you and appreciate your continued cooperation in working towards a successful consummation of the Merger. As contemplated by Section 5.06 of the Merger Agreement, we will cooperate with you in issuing promptly an appropriate press release disclosing our agreement with respect to the matters covered by this letter. Very truly yours, CHEMPOWER, INC. By:/s/ Toomas J. Kukk ------------------- Toomas J. Kukk Chairman, President and Chief Executive Officer AGREED AND ACCEPTED this 15th day of January, 1997: AMERICAN ECO CORPORATION /s/ Michael E. McGinnis ----------------------------- By: Michael E. McGinnis Title: President and CEO SUB ACQUISITION CORP. /s/ Michael E. McGinnis ----------------------------- By: Michael E. McGinnis Title: President -----END PRIVACY-ENHANCED MESSAGE-----