Item 1.01. Entry into a Material Definitive Agreement.
On
Offer and Merger. Pursuant to the Merger Agreement, on the terms and subject to
the conditions set forth in the Merger Agreement, as promptly as practicable and
in any event within 10 business days after the date of the Merger Agreement,
Acquisition Sub will commence a tender offer (the "Offer") to purchase (subject
to the Minimum Tender Condition (as defined below) and other customary
conditions) all of the outstanding shares of common stock,
Pursuant to the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each Company Share (excluding any (i) Company Shares held in the treasury of the Company or owned by any direct or indirect wholly-owned subsidiary of the Company, (ii) Company Shares owned by FR Utility, Acquisition Sub or any direct or indirect wholly-owned subsidiary of FR Utility, and (iii) Company Shares held by stockholders who are entitled to and have preserved their appraisal rights under Section 262 of the DGCL) that is outstanding immediately prior to the Effective Time shall be cancelled, shall cease to exist, shall no longer be outstanding, and shall be converted into the right to receive, in cash, without interest, the Per Share Amount (the "Merger Consideration").
Treatment of Outstanding Equity Awards. Pursuant to the terms of the Merger Agreement, immediately prior to the Effective Time, each outstanding Company Restricted Stock Unit (as defined in the Merger Agreement) will be accelerated and the holder thereof will be entitled to receive, for each share underlying such Company Restricted Stock Unit, the Merger Consideration.
Financing. The consummation of the Offer and the Merger are not subject to a financing condition.
Conditions to the Offer. The obligations of Acquisition Sub to accept for payment and pay for any Company Shares validly tendered and not validly withdrawn pursuant to the Offer are subject to the satisfaction of conditions specified in the Merger Agreement, including, in addition to certain other conditions, (i) that there shall have been validly tendered (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been "received" by the "depository," as such terms are defined in Section 251(h) of the DGCL) and not validly withdrawn that number of Company Shares that, when added to the Company Shares then beneficially owned by FR Utility and its affiliates, constitute at least a majority of the total number of then issued and outstanding Company Shares (the "Minimum Tender Condition"), (ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") applicable to the Transactions, (iii) the accuracy of the Company's representations and warranties in the Merger Agreement and its compliance with its covenants and obligations in the Merger Agreement, subject to certain exceptions, (iv) the absence of judgments or laws enjoining, restraining, prohibiting, preventing or making illegal the making of the Offer, the consummation of the Offer or the Merger or the other Transactions, and (v) the Inside Date (as defined in the Merger Agreement) shall have occurred.
Representations, Warranties and Covenants; Non-Solicitation. The Merger Agreement contains customary representations, warranties and covenants of the Company, FR Utility and Acquisition Sub. These covenants include an obligation of the Company, subject to certain exceptions, to and to cause its subsidiaries to, conduct operations in all material respects in the ordinary course of business for the period between the execution of the Merger Agreement and the earlier of (i) the Effective Time, or (ii) the date of termination of the Merger Agreement. Each of the Company, FR Utility and Acquisition Sub have also agreed to promptly make and effect all registrations, filings and submissions required to be made or effected by it pursuant to the HSR Act, the Securities Exchange Act of 1934, as amended, and other applicable legal requirements with respect to the Offer and the Merger. The Merger Agreement also requires the Company to and to cause its financial advisor, its subsidiaries and their respective officers and directors to, immediately cease and cause to be terminated any existing solicitation of, or negotiations or discussions with, any person relating to any Acquisition Proposal (as defined in the Merger Agreement) and restricts the Company's ability to, among other things, solicit, initiate, or knowingly encourage or
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knowingly facilitate the inquiry, submission or announcement of, or participate or engage in any discussions or negotiations with respect to, an Acquisition Proposal or furnish any information to any third party in response to, or in a manner that would reasonably be expected to lead to, an Acquisition Proposal, subject to certain limited exceptions. The Merger Agreement also contains covenants that require, subject to certain limited exceptions, the Company Board to recommend that the stockholders of the Company accept the Offer and tender their Company Shares to Acquisition Sub in the Offer. However, subject to compliance with certain terms and conditions in the Merger Agreement, (i) in the event the Company Board receives a Superior Proposal (as defined in the Merger Agreement) the Company Board is permitted (x) to change its recommendation to the Company's stockholders or (y) cause the Company to terminate the Merger Agreement to enter into such Superior Proposal, in each case, if the failure to take any such action would be inconsistent with the Company Board's fiduciary duties under applicable law, and (ii) the Company Board is permitted to change its recommendation to the Company's stockholders in response to an Intervening Event (as defined in the Merger Agreement), if the failure to take any such action would be inconsistent with the Company Board's fiduciary duties under applicable law.
Termination; Termination Fees. The Merger Agreement also provides for certain
termination rights for both the Company and FR Utility. Upon termination of the
Merger Agreement under certain circumstances, the Company is obligated to pay FR
Utility a termination fee equal to
Under certain circumstances, FR Utility is obligated to pay the Company a
termination fee equal to
The foregoing description of the Merger Agreement does not purport to be . . .
Item 8.01. Other Events.
On
Additional Information
The tender offer for the outstanding common stock of Goldfield has not yet
commenced. This document and any other materials referenced herein do not
constitute an offer to purchase nor a solicitation of an offer to sell shares of
Goldfield's common stock. At the time the tender offer is commenced, Acquisition
Sub will file a tender offer statement on Schedule TO and related materials,
including an offer to purchase, a letter of transmittal and other offer
documents, with the
Forward-Looking Statements
This report contains forward-looking statements, including, without limitation,
statements relating to the expected benefits of the proposed transaction and the
timing of the closing of the proposed transaction. Generally, forward-looking
statements can be identified by non-historical statements and often include
words such as "forecasts," "potential," "believes," "expects," "anticipates,"
"estimates," "intends," "plans," "seeks" or words of similar meaning, or
future-looking or conditional verbs, such as "will," "should," "could," "may,"
"might," "aims," "intends," "projects," or similar words or phrases. You should
not place undue reliance on these statements. These statements are based on
current expectations, forecasts and assumptions of FR Utility and Goldfield that
are subject to risks and uncertainties that could cause actual outcomes and
results to differ materially from those statements. Risks and uncertainties
include, among others, the risk that the conditions to the Offer or the Merger
set forth in the Merger Agreement will not be satisfied or waived, including the
receipt of regulatory clearances related to the Merger; uncertainties as to the
timing of the Offer and subsequent Merger, including that the Offer and Merger
will not close within the anticipated time periods, or at all; uncertainties as
to how many Goldfield shareholders will tender their shares in the Offer; the
risk that competing offers will be made; changes in either companies' businesses
during the period between now and the closing of the proposed transaction; the
successful integration of Goldfield into FR Utility's business subsequent to the
closing of the proposed transaction; the risk that the strategic benefits,
synergies or opportunities expected from the proposed transaction may not be
realized or may take longer than expected to be realized; adverse reactions to
the proposed transaction by employees, customers, vendors or strategic partners;
dependence on key personnel and customers; management of growth and
organizational change; risks associated with litigation; competitive actions in
the marketplace; and regulatory actions or delays or government regulation
generally, including potential regulatory actions or delays relating to the
completion of the proposed transaction; as well as other factors detailed in
Goldfield's filings with the
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Item 9.01. Financial Statements and Exhibits. (d) Exhibit Description of Exhibit *2.1 Agreement and Plan of Merger, dated as ofNovember 23, 2020 , by and amongFR Utility Services, Inc. ,FR Utility Services Merger Sub, Inc. , andThe Goldfield Corporation 99.1 Support Agreement, datedNovember 23, 2020 , by and amongFR Utility Services, Inc. ,FR Utility Services Merger Sub, Inc. and the stockholders ofThe Goldfield Corporation party thereto. 99.2 Joint Press Release ofThe Goldfield Corporation andFR Utility Services, Inc. datedNovember 24, 2020 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document) * The Company agrees to furnish supplementally a copy of any omitted exhibit or schedule to theSecurities and Exchange Commission upon request. 4
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