UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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 27, 2015 (March 26, 2015)
(Exact name of registrant as specified in its charter)
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Virginia
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1-1070
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13-1872319
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(State or Other Jurisdiction of
Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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190 Carondelet Plaza, Suite 1530
Clayton, MO
(Address of principal executive offices)
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63105-3443
(Zip Code)
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(314) 480-1400
(Registrant’s telephone number, including area code)
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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 (see General Instruction A.2. below):
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x
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
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Entry into a Material Definitive Agreement.
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On March 27, 2015, Olin Corporation (“Olin”) and The Dow Chemical Company (“TDCC”) announced that they and certain affiliates had entered into an Agreement and Plan of Merger (the “Merger Agreement”) dated March 26, 2015 among Olin, TDCC, Blue Cube Acquisition Corp. (“Merger Sub”) and Blue Cube Spinco Inc. (“Spinco”), pursuant to which, subject to the terms and conditions of the Merger Agreement and a Separation Agreement dated March 26, 2015 between TDCC and Spinco (the “Separation Agreement”), (1) TDCC will transfer its U.S. chlor-alkali and vinyl, global chlorinated organics and global epoxy businesses (collectively, the “Business”) to Spinco, (2) TDCC will distribute Spinco’s stock to TDCC’s shareholders, at TDCC’s option, by way of a spin-off, a split-off or a combination thereof (the “Distribution”), and (3) Merger Sub will merge with and into Spinco, with Spinco as the surviving corporation (the “Merger”).
Upon consummation of the transactions contemplated by the Merger Agreement and the Separation Agreement, the shares of Spinco common stock then outstanding will automatically be converted into approximately 80.6 million shares of Olin common stock and will represent approximately 50.5% of the outstanding shares of Olin common stock. Olin’s existing shareholders will continue to hold the remaining approximately 49.5% of the outstanding shares of Olin common stock. In the event that certain specified joint venture interests owned by an unrelated third party participant in a TDCC chlor-alkali joint venture are transferred to Spinco in the transaction, approximately 6.9 million shares of additional Olin common stock would be issued in the Merger to the TDCC shareholders receiving the Distribution.
In connection with the transactions contemplated by the Merger Agreement and the Separation Agreement, certain additional agreements have been or will be entered into, including, among others:
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an Employee Matters Agreement, which will govern TDCC’s, Spinco’s and Olin’s obligations with respect to current and former employees of the Business;
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a Tax Matters Agreement, which will govern TDCC’s, Spinco’s and Olin’s respective rights, responsibilities and obligations with respect to taxes, tax attributes, the preparation and filing of tax returns, tax contests, preservation of tax-free status of certain transactions contemplated by the Merger Agreement and the Separation Agreement and certain other tax matters; and
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site, transitional and other services agreements, supply and purchase agreements, real estate agreements, technology licenses and intellectual property agreements.
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In addition, Olin and TDCC have agreed in connection with the transactions to enter into arrangements for the long-term supply of ethylene by TDCC to Olin at “co-producer” economics, pursuant to which, among other things, Olin will make an upfront payment of just over $300 million upon the closing of the Merger. Olin will also have the option of obtaining additional future ethylene supply by paying an additional reservation fee at closing.
Separation Agreement
The Separation Agreement identifies assets to be transferred to, and liabilities to be assumed by, Spinco and its subsidiaries as part of the separation of the Business from the other businesses of TDCC (the “Separation”). In particular, the Separation Agreement provides, among other things, that, subject to the terms and conditions contained therein:
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assets related primarily to the Business, with certain exceptions, will be transferred, directly or indirectly, to Spinco (the “Spinco Assets”);
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certain liabilities arising out of, or relating to the Spinco Assets or the Business, with certain exceptions, will be assumed, directly or indirectly, by Spinco (the “Spinco Liabilities”); and
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all of the assets and liabilities of TDCC and its subsidiaries, other than the Spinco Assets and Spinco Liabilities, will be retained by or transferred to TDCC and its subsidiaries.
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The Separation Agreement governs the rights and obligations of TDCC and Spinco regarding the Distribution. The Separation Agreement also sets forth other agreements between TDCC and Spinco related to the Separation, including provisions concerning the termination and settlement of intercompany accounts, obtaining governmental approvals and third party consents and working capital adjustments. The Separation Agreement also sets forth agreements that govern certain aspects of the relationship between TDCC and Spinco after the Distribution, including provisions with respect to release of claims, indemnification, insurance, access to financial and other information and access to and provision of records.
Prior to the Distribution, TDCC will receive from Spinco distributions of cash and debt instruments of Spinco with an aggregate value of $2,030 million (collectively, the “Cash and Debt Distribution”). TDCC expects to deliver the Spinco debt instruments received in the Cash and Debt Distribution in exchange for outstanding debt obligations to be identified by TDCC prior to the consummation of the Distribution (the “Exchange”). As the cash portion of the Cash and Debt Distribution, TDCC will receive from Spinco a total of $875 million immediately prior to the Distribution. The amount of the Cash and Debt Distribution is subject to adjustment, including adjustments based on Spinco’s working capital at the time of the Distribution. If TDCC determines that the Exchange is not reasonably likely to be consummated at the time of the Distribution, TDCC may elect to receive the Spinco debt instruments in any event, or alternatively, may elect to receive cash for the full amount of the Cash and Debt Distribution; however TDCC has no obligation to waive the consummation of the Exchange as a condition to the closing of the Merger. On March 26, 2015, Olin and certain financial institutions executed commitment letters pursuant to which the financial institutions have agreed to provide financing to Spinco to finance the amount of the Cash and Debt Distribution and to provide financing to Olin to refinance certain of Olin’s existing debt, in each case on the terms and conditions set forth in the commitment letters.
At TDCC’s election, the Distribution may be effected by means of a pro rata dividend in a spin-off, an exchange offer for outstanding TDCC shares in a split-off, or a combination thereof.
The Separation Agreement provides that the Distribution is subject to the substantially simultaneous consummation of the Cash and Debt Distribution and to the satisfaction or waiver of certain conditions in the Merger Agreement.
The Separation Agreement provides that Olin is a third-party beneficiary of the Separation Agreement.
Merger Agreement
The Merger Agreement provides that, immediately following the consummation of the Distribution, Merger Sub will merge with and into Spinco, with Spinco surviving the Merger as a wholly owned subsidiary of Olin. At the effective time of the Merger, each share of Spinco common stock will be automatically converted into the right to receive shares of Olin common stock, as described above.
In addition, the Merger Agreement provides that in connection with the Merger, Olin will increase the size of its board of directors (the “Olin Board”) by three members, and that three individuals designated by TDCC will be appointed to the Olin Board to fill the vacancies. In accordance with the Merger Agreement, these individuals will also be nominated for election to the Olin Board at Olin’s next annual meeting of shareholders.
Consummation of the Merger is subject to customary closing conditions, including, among others, (1) the consummation of the Separation and the Distribution in accordance with the Separation Agreement, (2) the expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the receipt of regulatory approvals in certain other jurisdictions, (3) the effectiveness of registration statements to be filed with the U.S. Securities and Exchange Commission (“SEC”), (4) the approval by Olin’s shareholders of the issuance of Olin common stock in the Merger (the “Share Issuance”) and the amendment of Olin’s Amended and Restated Articles of Incorporation to increase the number of authorized shares of Olin common stock (the “Charter Amendment”), (5) the receipt by TDCC of a favorable IRS private letter ruling with respect to certain aspects of the Separation and the Distribution and an opinion from its counsel with respect to certain federal income tax matters related to the Separation, Distribution and Exchange, (6) the receipt by TDCC, on the one hand, and Olin, on the other hand, of an opinion from their respective counsel to the effect that the Merger will be treated as a “reorganization” for U.S. federal income tax purposes, (7) the consummation of the Exchange (unless TDCC elects to receive cash for the full amount of the Cash and Debt Distribution as described above), (8) material compliance by each party with its covenants, and (9) subject to certain materiality qualifiers, the absence of breaches of representations and warranties.
The parties have made customary representations and warranties and agreed to various customary covenants in the Merger Agreement, including, among others, covenants to conduct the operations of the Business and Olin in the ordinary course between the execution of the Merger Agreement and the consummation of the Merger and not to engage in certain actions during such period. TDCC covenants in the Merger Agreement not to solicit or enter into discussions concerning, or provide confidential information in connection with, alternative transactions with respect to the Business. Olin also covenants in the Merger Agreement (1) to cause a shareholder meeting to be held to obtain the required shareholder approval, (2) not to solicit alternative transactions, (3) except under limited circumstances, not to enter into discussions concerning, or provide confidential information in connection with, alternative transactions, and (4) with limited exceptions, that the Olin Board will recommend that the shareholders of Olin vote to approve the Share Issuance and the Charter Amendment.
The Merger Agreement contains certain termination rights for both TDCC and Olin and further provides that Olin must pay to TDCC a termination fee of $100 million upon termination of the Merger Agreement under the following circumstances:
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if the Merger Agreement is terminated by TDCC due to (a) a change in the Olin Board’s recommendation that the shareholders of Olin vote to approve the Share Issuance and the Charter Amendment; (b) a failure by Olin to include such favorable Board recommendation in the proxy statement for the Olin shareholder vote; or (c) the failure by Olin to comply with certain obligations relating to, among other matters, obtaining shareholder approval and not soliciting or participating in alternative transactions, including those obligations summarized in clauses (1)-(4) of the immediately preceding paragraph;
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if (a) Olin or TDCC terminates the Merger Agreement for failure to close before the termination date or because approval is not obtained at the Olin shareholder meeting to be called for such purpose; (b) prior to the termination, a competing transaction involving Olin is announced or becomes publicly known; and (c) within 18 months after the termination Olin consummates, or enters into an agreement for, a competing transaction.
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In addition, if the Merger Agreement is terminated because approval is not obtained at the Olin shareholder meeting called for such purpose, Olin has agreed to reimburse TDCC and Spinco for expenses up to a maximum amount of $50 million. If the Merger Agreement is terminated under the circumstances described in the second bullet above, the termination fee will be reduced by the amount of any such expenses previously reimbursed by Olin.
The foregoing descriptions of the Merger Agreement and the Separation Agreement and the transactions contemplated thereby do not purport to be complete and are qualified in their entirety by reference to such agreements which are filed as Exhibit 2.1 and Exhibit 10.1, respectively, hereto and are incorporated herein by reference.
The Separation Agreement and the Merger Agreement have been filed, and the above descriptions of the Separation Agreement and the Merger Agreement have been included, to provide investors and security holders with information regarding the terms of the Separation Agreement and the Merger Agreement. They are not intended to provide any other factual information about Olin, Merger Sub, TDCC, Spinco, their respective subsidiaries and affiliates, or any of their respective businesses. The Merger Agreement contains representations and warranties of TDCC solely for the benefit of Olin and representations and warranties of Olin and Merger Sub solely for the benefit of TDCC and Spinco. The assertions embodied in those representations and warranties are qualified by information in confidential disclosure letters that the parties have exchanged in connection with signing the Merger Agreement as of a specific date. The disclosure letters contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger Agreement. Therefore, investors and security holders should not treat the representations and warranties as categorical statements of fact. Moreover, these representations and warranties may apply standards of materiality in a way that is different from what may be material to investors. They were made only as of the date of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement and they are subject to more recent developments. Accordingly, investors and security holders should read the representations and warranties in the Merger Agreement not in isolation but only in conjunction with the other information about Olin and TDCC and their subsidiaries that the respective companies include in reports and statements they file with the SEC.
On March 27, 2015, Olin and TDCC issued a joint press release announcing the transactions contemplated by the Merger Agreement and the Separation Agreement. A copy of the press release is filed as Exhibit 99.1 to this report and is incorporated herein by reference.
Cautionary Statements Regarding Forward-Looking Information
This communication includes forward-looking statements. These statements relate to analyses and other information that are based on management’s beliefs, certain assumptions made by management, forecasts of future results, and current expectations, estimates and projections about the markets and economy in which Olin Corporation (“Olin”) and The Dow Chemical Company’s (“TDCC”) chlorine products business operate. These statements may include statements regarding the proposed combination of TDCC’s chlorine products business with Olin in a “Reverse Morris Trust” transaction, the expected timetable for completing the transaction, benefits and synergies of the transaction, future opportunities for the combined company and products and any other statements regarding Olin’s and TDCC’s chlorine products businesses’ future operations, anticipated business levels, future earnings, planned activities, anticipated growth, market opportunities, strategies and competition.
The statements contained in this communication that are not statements of historical fact may include forward-looking statements that involve a number of risks and uncertainties. We have used the words “anticipate,”, “intend,” “may,” “expect,” “believe,” “plan,” “estimate,” “will,” and variations of such words and similar expressions in this communication to identify such forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions, which are difficult to predict and many of which are beyond our control. Therefore, actual outcomes and results may differ materially from those matters expressed or implied in such forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to: factors relating to the satisfaction of the conditions to the proposed transaction, including regulatory approvals and the required approvals of Olin’s shareholders; the parties’ ability to meet expectations regarding the timing, completion and accounting and tax treatments of the proposed transaction; the possibility that Olin may be unable to achieve expected synergies and operating efficiencies in connection with the transaction within the expected time-frames or at all; the integration of the TDCC’s chlorine products business being more difficult, time-consuming or costly than expected; the effect of any changes resulting from the proposed transaction in customer, supplier and other business relationships; general market perception of the proposed transaction; exposure to lawsuits and contingencies associated with TDCC’s chlorine products business; the ability to attract and retain key personnel; prevailing market conditions; changes in economic and financial conditions of Olin and TDCC’s chlorine products business; uncertainties and matters beyond the control of management; and the other risks detailed in Olin’s Form 10-K for the fiscal year ended December 31, 2014. The forward-looking statements should be considered in light of these factors. In addition, other risks and uncertainties not presently known to Olin or that Olin considers immaterial could affect the accuracy of our forward-looking statements. The reader is cautioned not to rely unduly on these forward-looking statements. Olin and TDCC undertake no obligation to update publicly any forward-looking statements, whether as a result of future events, new information or otherwise.
Additional Information and Where to Find It
In connection with the proposed combination of Olin with the chlorine products business of TDCC, Blue Cube Spinco Inc. (“Spinco”) will file a registration statement on Form S-4 containing a prospectus and Olin will file a proxy statement on Schedule 14A and a registration statement on Form S-4 containing a prospectus with the Securities and Exchange Commission (the “SEC”). INVESTORS AND SECURITYHOLDERS ARE ADVISED TO READ THE REGISTRATION STATEMENTS/PROSPECTUSES AND PROXY STATEMENT AND ANY OTHER RELEVANT DOCUMENTS WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT OLIN, TDCC, SPINCO AND THE PROPOSED TRANSACTION. Investors and securityholders may obtain a free copy of the registration statements/prospectuses and proxy statement (when available) and other documents filed by Olin, TDCC and Spinco with the SEC at the SEC’s website at http://www.sec.gov. Free copies of these documents, once available, and each of the companies’ other filings with the SEC, may also be obtained from the respective companies by directing a request to Olin at Olin Corporation, ATTN: Investor Relations, 190 Carondelet Plaza, Suite 1530, Clayton, Missouri 63105 or TDCC or Spinco at The Dow Chemical Company, 2030 Dow Center, Midland, Michigan 48674, ATTN: Investor Relations, as applicable.
Participants in Solicitation
This communication is not a solicitation of a proxy form any investor or securityholder. However, Olin, TDCC, Spinco and certain of their respective directors, executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies from shareholders of Olin in respect of the proposed transaction under the rules of the SEC. Information regarding Olin’s directors and executive officers is available in Olin’s 2014 Annual Report on Form 10-K filed with the SEC on February 25, 2015, and in its definitive proxy statement for its 2015 Annual Meeting of Shareholders filed March 4, 2015. Information regarding TDCC’s directors and executive officers is available in TDCC’s Annual Report on Form 10-K filed with the SEC on February 13, 2015, and in its definitive proxy statement for its annual meeting of shareholders filed March 28, 2014. These documents can be obtained free of charge from the sources indicated above. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the registration statements, prospectuses and proxy statement and other relevant materials to be filed with the SEC when they become available.
Non-Solicitation
This communication shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
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(d)
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Exhibit No.
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Exhibit
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2.1
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Agreement and Plan of Merger, dated as of March 26, 2015, among The Dow Chemical Company, Blue Cube Spinco Inc., Olin Corporation and Blue Cube Acquisition Corp.
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10.1
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Separation Agreement, dated as of March 26, 2015, between The Dow Chemical Company and Blue Cube Spinco Inc.
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99.1
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Press release, dated March 27, 2015.
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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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OLIN CORPORATION |
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By:
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/s/ George H. Pain |
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Name: |
George H. Pain |
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Title: |
Senior Vice President, General Counsel
and Secretary
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Date: March 27, 2015
EXHIBIT INDEX
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(d)
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Exhibit No.
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Exhibit
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2.1
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Agreement and Plan of Merger, dated as of March 26, 2015, among The Dow Chemical Company, Blue Cube Spinco Inc., Olin Corporation and Blue Cube Acquisition Corp.
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10.1
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Separation Agreement, dated as of March 26, 2015, between The Dow Chemical Company and Blue Cube Spinco Inc.
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99.1
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Press release, dated March 27, 2015.
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