West Marine, Inc. (NASDAQ:WMAR) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01
| Entry into a Material Definitive Agreement |
On June 29, 2017, West Marine, Inc., a Delaware corporation
(West Marine), entered into an Agreement and Plan of
Merger (the Merger Agreement) with Rising Tide Parent
Inc., a Delaware corporation (Parent), an affiliate of
Monomoy Capital Partners a New York-based private equity fund
(Monomoy), and Rising Tide Merger Sub, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent (Merger
Sub). to theMerger Agreement, Merger Sub will be merged with
and into West Marine (the Merger), with West Marine
continuing as the surviving company in the Merger.
Subject to the terms and conditions set forth in theMerger
Agreement, at the effective time of the Merger, each share of
common stock, par value $0.001 per share, of West Marine (the
Shares) issued and outstanding immediately prior to the
effective time of the Merger (other than Shares held in the
treasury of West Marine and all Shares owned of record by Parent,
or any of their respective direct or indirect wholly-owned
subsidiaries, and Shares owned by a person who is entitled to
appraisal rights under the Delaware General Corporation Law (the
DGCL) and has complied with all the provisions of the DGCL
concerning the right of holders of such Shares to require
appraisal of such Shares) will be automatically converted into
the right to receive $12.97 in cash, without interest (the
Merger Consideration), and all such Shares shall
thereafter be cancelled and cease to have any rights with respect
thereto, except the right to receive the Merger Consideration.
TheMerger Agreementcontains customary representations and
warranties of West Marine and Parent. Additionally, theMerger
Agreementprovides for customary pre-closing covenants of West
Marine, including covenants relating to conducting its operations
in all material respects in the ordinary course of business
substantially consistent with past practice and refraining from
taking certain actions without Parents consent, covenants not to
solicit proposals relating to alternative transactions or,
subject to certain exceptions, enter into discussions concerning
or provide information in connection with alternative
transactions and covenants requiring West Marines board of
directors or a committee thereof (the Board), subject to
certain exceptions, to recommend that West Marines stockholders
approve theMerger Agreement.
Prior to the approval of theMerger Agreementby West Marines
stockholders, the Board may change its recommendation that West
Marines stockholders approve theMerger Agreement if the Board
receives a superior proposal or if there is an intervening event,
but only if certain conditions are satisfied with respect thereto
and West Marine complies with its obligations in respect thereof.
Parent and West Marine have agreed to use their respective
reasonable best efforts, subject to certain exceptions, to, among
other things, consummate the transactions contemplated by
theMerger Agreementas promptly as reasonably practicable and
obtain any required regulatory approvals.
Consummation of the Merger is subject to various conditions,
including, among others, customary conditions relating to the
approval of theMerger Agreementby the requisite vote of West
Marines stockholders, and expiration of the applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended. The obligation of each party to consummate the
Merger is also conditioned on the other party’s representations
and warranties being true and correct (subject to certain
materiality or de minimis exceptions) and the other party having
performed in all material respects its obligations under
theMerger Agreement. The transaction is not conditioned on
Parents receipt of financing, however if Parent is not able to
secure financing and the agreement is terminated as a result,
Parent would be obligated to pay West Marine a termination fee of
$17,000,000.
TheMerger Agreementalso provides for certain mutual termination
rights of West Marine and Parent, including the right of either
party to terminate theMerger Agreementif the Merger is not
consummated on or before six months from the date of the Merger
Agreement. Upon termination of the Merger Agreement under certain
circumstances, West Marine would be obligated to pay Parent a
termination fee of $11,000,000. Upon termination of the Merger
Agreement under certain circumstances, Parent would be obligated
to pay West Marine a termination fee of $17,000,000.
Concurrently with the entry into the Merger Agreement, the
holders of approximately 20% of the outstanding shares of West
Marine common stock, entered into a voting agreement in favor of
Parent to which they agreed, among other things, to vote their
shares of West Marine common stock in favor of the adoption of
the Merger Agreement and against any competing proposal. The
voting agreement terminates upon the valid termination of the
Merger Agreement in accordance with its terms, including if West
Marine were to terminate the Merger Agreement in order to accept
an unsolicited superior acquisition proposal.
The foregoing description of theMerger Agreementis qualified in
its entirety by the full text of theMerger Agreement, which is
attached hereto as Exhibit 2.1 and is incorporated by reference
herein.
Important Statement regarding theMerger Agreement.TheMerger
Agreementhas been included to provide investors with information
regarding terms of the Merger. It is not intended to provide any
other factual information about West Marine, Parent, or their
respective subsidiaries or affiliates. The representations,
warranties, and covenants contained in theMerger Agreementwere
made only for purposes of theMerger Agreementand as of specific
dates, were solely for the benefit of the parties to theMerger
Agreement, may be subject to limitations, qualifications or other
particulars agreed upon by the contracting parties, including
being qualified by confidential disclosures made for the purposes
of allocating contractual risk between the parties to theMerger
Agreementinstead of establishing these matters as facts or made
for other purposes, and may be subject to standards of
materiality applicable to the contracting parties that differ
from those applicable to investors. Investors are not third-party
beneficiaries under theMerger Agreementand should not rely on the
representations, warranties, and covenants or any descriptions
thereof as characterizations of the actual state of facts or
condition of the parties thereto or any of their respective
subsidiaries or affiliates. Moreover, information concerning the
subject matter of representations and warranties may change after
the date of theMerger Agreement, which subsequent information may
or may not be fully reflected in West Marines public disclosures.
| Item 8.01 | Other Events. |
On June 29, 2017, West Marine and Parent issued a joint press
release announcing that they have entered into theMerger
Agreement. A copy of the press release is attached hereto as
Exhibit 99.1 and is incorporated by reference herein.
Forward-Looking Statements
This communication includes forward-looking information (as
defined in the Private Securities Litigation Reform Act of 1995),
including statements that are predictive or express expectations
that depend on future events or conditions that involve risks and
uncertainties. These risks and uncertainties include, among other
things, statements about future financial and operating results;
benefits of the transaction to customers, stockholders and
associates; the financing of the transaction and other statements
regarding the proposed transaction. West Marines expectations and
beliefs regarding these matters may not materialize, and actual
results in future periods are subject to risks and uncertainties
that could cause actual results to differ materially from those
projected, including but not limited to:
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failure of West Marines stockholders to adopt the merger agreement or that the companies will otherwise be unable to consummate the merger on the terms set forth in the merger agreement; |
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the risk that required governmental approvals of the merger will not be obtained; |
| litigation in respect of either company or the merger; and |
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disruption from the merger making it more difficult to maintain certain important relationships. |
The forward-looking statements contained in this Current Report
on Form 8-K are also subject to other risks and uncertainties,
including the risk factors set forth in West Marines annual
report on Form 10-K for the fiscal year ended December 31, 2016
(the 2016 Form 10-K) and quarterly report on Form 10-Q for the
fiscal quarter ended April 1, 2017, as well as the discussion of
critical accounting policies in the 2016 Form 10-K. The
forward-looking statements in this Current Report on Form 8-K are
based on information available to West Marine as of the date
hereof, and except as required by applicable law, West Marine
assumes no responsibility to update any forward-looking
statements as a result of new information, future events or
otherwise.
Important Additional For Investors and
Stockholders
This communication is being made in respect of the proposed
merger transaction involving Monomoy and West Marine. This
communication does not constitute an offer to sell or the
solicitation of an offer to buy our securities or the
solicitation of any vote or approval. The proposed merger will be
submitted to the stockholders of West Marine for their
consideration. In connection therewith, West Marine intends to
file relevant materials with the SEC, including a definitive
proxy statement. However, such documents are not currently
available. The definitive proxy statement will be mailed to the
stockholders of West Marine. BEFORE MAKING ANY VOTING OR ANY
INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS ARE URGED TO
READ THE DEFINITIVE PROXY STATEMENT REGARDING THE PROPOSED
TRANSACTION AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED
WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME
AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT
THE PROPOSED TRANSACTION. Investors and security holders may
obtain free copies of the definitive proxy statement, any
amendments or supplements thereto and other documents containing
important information about Monomoy and West Marine, once such
documents are filed with the SEC, at the SECs Internet site at
www.sec.gov. Copies of the documents filed with the SEC by West
Marine will be available free of charge on West Marines website
at www.westmarine.com under the heading Investor Relations.
Stockholders of West Marine may also obtain a free copy of the
definitive proxy statement and the filings with the SEC that will
be incorporated by reference in the proxy statement by contacting
our Secretary at 500 Westridge Drive, Watsonville, California
95076, Phone: 831-728-2700.
West Marine and its directors, executive officers and other
members of management and employees may be deemed to be
participants in the solicitation of proxies of West Marines
stockholders in connection with the proposed transaction.
Information about the directors and executive officers of West
Marine is set forth in West Marines annual report on Form 10-K
for the fiscal year ended December 31, 2016, which was filed with
the SEC on February 28, 2017, and its proxy statement for its
2017 annual meeting of stockholders, which was filed with the SEC
on April 21, 2017 and in subsequent documents filed with the SEC,
each of which can be obtained free of charge from the sources
indicated above. Other information regarding the participants in
the proxy solicitation of the stockholders of West Marine and a
description of their direct and indirect interests, by security
holdings or otherwise, will be contained in the preliminary and
definitive proxy statements and other relevant materials to be
filed with the SEC when they become available.
| Item 9.01 | Financial Statements and Exhibits |
(d)Exhibits:
Exhibit No. |
Description of Exhibit |
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| 2.1 |
Agreement and Plan of Merger, dated June 29, 2017, by and among Rising Tide Parent Inc., Rising Ride Merger Sub Inc. and West Marine, Inc. |
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| 4.1 | Form of Voting and Support Agreement. | |
| 99.1 | Press Release, dated June 29, 2017 |
WEST MARINE INC ExhibitEX-2.1 2 v470044_ex2-1.htm EXHIBIT 2.1 Exhibit 2.1 AGREEMENT AND PLAN OF MERGER among RISING TIDE PARENT INC.,…To view the full exhibit click here About West Marine, Inc. (NASDAQ:WMAR)
West Marine, Inc. is a waterlife outfitter for cruisers, sailors, anglers and paddlesports enthusiasts. The Company offers a selection of core boating and water recreation products, primarily serving the needs of boat owners and professionals providing services to them. It services its customers through physical stores and two e-commerce Websites. It is a specialty retailer of boating supplies, gear, apparel, footwear and other waterlife-related products. It operates approximately 260 stores located in approximately 40 states, Puerto Rico and Canada. Its products include boating products and merchandise expansion products. Its boating products include maintenance, electronics, sailboat hardware, anchors/docking/moorings, engine systems, boats/outboards, ventilation, navigation, trailering, seating/boat covers and barbecues/appliances. Its merchandise expansion products include clothing accessories, fishing, watersports, paddlesports, coolers and waterlife lifestyle accessories.