FWLT (MM)

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

  WASHINGTON, D.C. 20549

 

____________________________

 

FORM 8-K

 

CURRENT REPORT UNDER SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of Earliest Event Reported): October 2, 2014

 

FOSTER WHEELER AG

(Exact Name of Registrant as Specified in Charter)

 

 

Switzerland		001-31305		98-0607469
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

Shinfield Park, Reading, Berkshire RG2 9FW, United Kingdom

(Address of Principal Executive Offices)

+44 118 913 1234

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report.)

 

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:

 

x	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

(b)           On October 2, 2014, J. Kent Masters notified the Board of Directors of Foster Wheeler AG (“Foster Wheeler” or the “Company”) that, in accordance with the terms of a Coordination Agreement entered into between he and AMEC plc (“AMEC”) on October 2, 2014, he will resign as Chief Executive Officer of the Company, subject to and effective as of the closing of the exchange offer (the “Offer”) by AMEC to acquire of all of the issued and to be issued registered shares, par value CHF 3.00 per share, of Foster Wheeler on the terms and subject to the conditions of that certain Implementation Agreement dated February 13, 2014 (as amended from time to time) between Foster Wheeler and AMEC. He is expected to continue to serve as a director of the Company from and after the closing of the Offer until such date as AMEC shall specify, and it is expected that immediately following the date on which his employment with Foster Wheeler terminates he will be appointed as a non-executive director of AMEC, provided he is no longer a director of the Company on such date. For more information on the Coordination Agreement, readers are directed to the Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission (“SEC”) on October 7, 2014, in connection with the Offer, and to the Coordination Agreement, which is filed as Exhibit (e)(63) thereto.

  

Item 8.01

Other Events.

 

On October 7, 2014, Foster Wheeler issued an internal announcement to individuals (collectively, “Certain Individuals”) who (i) hold outstanding equity awards issued pursuant to the Foster Wheeler AG Omnibus Incentive Plan and/or (ii) are subject to certain restrictions in the Foster Wheeler AG Insider Trading Compliance Policy and/or the Foster Wheeler AG Share Ownership Guidelines to provide an update regarding, among other things, how such equity awards will be treated if and when the Offer closes. A copy of the internal announcement is attached as Exhibit 99.01 to this Current Report on Form 8-K and is incorporated herein by reference. The internal announcement contains statements intended as “forward-looking statements” that are subject to the cautionary statements about forward-looking statements set forth below in this Form 8-K.

  

Important information

 

In connection with the pending Offer by AMEC to acquire all of Foster Wheeler’s issued and to be issued registered shares which commenced today, AMEC filed a registration statement on Form F-4 and a Tender Offer statement on Schedule TO and the Company filed a Recommendation Statement on Schedule 14D-9 with respect to the Offer. These documents contain important information about the Offer that should be read carefully before any decision is made with respect to the Offer. These materials will be made available to the shareholders of the Company at no expense to them. Investors and security holders may obtain the documents free of charge at the SEC’s web site, www.sec.gov. Any materials filed by the Company with the SEC may also be obtained without charge at the Company's website, www.fwc.com.

 

This announcement is for informational purposes only and does not constitute or form part of an offer to sell or the solicitation of an offer to buy or subscribe to 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. This announcement is not an offer of securities for sale into the United States. No offering of securities shall be made in the United States except pursuant to registration under the Securities Act of 1933, as amended, or an exemption therefrom.

 

  

Forward-Looking Statements

 

Certain comments contained herein are forward-looking statements that are based on management’s assumptions, expectations and projections about the Company and the various industries within which the Company operates. These include statements regarding the Company’s expectations about revenues (including as expressed by its backlog), its liquidity, the outcome of litigation and legal proceedings and recoveries from customers for claims and the costs of current and future asbestos claims and the amount and timing of related insurance recoveries. Such forward-looking statements by their nature involve a degree of risk and uncertainty. The Company cautions that a variety of factors, including but not limited to the factors described in the Form 10-K for the year ended December 31, 2013, filed with the SEC on February 27, 2014, and the following, could cause the Company’s business conditions and results to differ materially from what is contained in forward-looking statements: the timing and success of the pending offer and acquisition of the Company by AMEC plc, the risk that the Company’s business will be adversely impacted during the pending offer and acquisition of the Company by AMEC plc, benefits, effects or results of the Company’s redomestication to Switzerland, deterioration in global economic conditions, changes in investment by the oil and gas, oil refining, chemical/petrochemical and power generation industries, changes in the financial condition of its customers, changes in regulatory environments, changes in project design or schedules, contract cancellations, the changes in estimates made by the Company of costs to complete projects, changes in trade, monetary and fiscal policies worldwide, compliance with laws and regulations relating to the Company’s global operations, currency fluctuations, war, terrorist attacks and/or natural disasters affecting facilities either owned by the Company or where equipment or services are or may be provided by the Company, interruptions to shipping lanes or other methods of transit, outcomes of pending and future litigation, including litigation regarding the Company’s liability for damages and insurance coverage for asbestos exposure, protection and validity of the Company’s patents and other intellectual property rights, increasing global competition, compliance with its debt covenants, recoverability of claims against the Company’s customers and others by the Company and claims by third parties against the Company, and changes in estimates used in its critical accounting policies. Other factors and assumptions not identified above were also involved in the formation of these forward-looking statements and the failure of such other assumptions to be realized, as well as other factors, may also cause actual results to differ materially from those projected. Most of these factors are difficult to predict accurately and are generally beyond the Company’s control. You should consider the areas of risk described above in connection with any forward-looking statements that may be made by the Company. The Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. You are advised, however, to consult any additional disclosures the Company makes in proxy statements, quarterly reports on Form 10-Q, annual reports on Form 10-K and current reports on Form 8-K filed with or furnished to the SEC.

 

Item 9.01

Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.		Description of Exhibit
99.01		Internal Announcement, dated October 7, 2014, to Certain Individuals

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	FOSTER WHEELER AG
	By:	/s/ Michelle K. Davies
		Michelle K. Davies Corporate Secretary

 

DATE: October 7, 2014

 

Exhibit 99.01

 

 

 

 

john a. doyle, jr.	Tel   908-730-4270
Assistant Secretary	Fax  908-730-4149
	E-mail: john_doyle@fwc.com

 

 

To:

Individuals Who Hold Foster Wheeler AG Equity Awards and/or Who Are Subject to Foster Wheeler AG’s Security Trading Window and/or Share Ownership Guidelines

 

Date:

October 7, 2014

 

Re:

Notifications in relation to AMEC Tender Offer

 

AMEC plc (“AMEC”) has launched an exchange offer to acquire all Foster Wheeler AG (the “Company”) registered shares. In connection with this offer, please be advised of the following.

 

1.

Foster Wheeler AG Insider Trading Compliance Policy (the “Policy”):

 

a.

Foster Wheeler’s trading windows under the Policy will continue to apply during AMEC’s tender offer. The trading window is currently closed.

 

b.

The Board has granted an exception to the Policy to allow you to tender your shares to AMEC during this closed trading window, provided that individuals who are Section 16 Officers and Directors must inform the Office of the Corporate Secretary if and when they tender shares to AMEC.

 

c.

Events surrounding AMEC’s acquisition of the Company may affect the timing of when or if a subsequent window is opened. The Company reserves the unilateral right to postpone or cancel the opening of a subsequent trading window. You will be advised in advance of the next open trading window.

 

d.

Please note that because the trading window is currently closed and until the trading window reopens (the timing of which is uncertain and not guaranteed), unless you already have an approved Rule 10b5-1 trading plan in place, you will be unable to effect a "cashless" exercise of your options (whereby you exercise your options and sell a sufficient number of shares to cover the exercise price and related taxes) during the offer period in order to tender underlying option shares into the offer. Cash exercises, when you exercise your options by paying the full exercise price and related tax withholding in cash, will be permitted.

 

 

2.

Foster Wheeler AG Share Ownership Guidelines (the “Guidelines”): The Compensation and Executive Development Committee of the Board of Directors (the “Compensation Committee”) has determined that individuals who are subject to the Guidelines may tender their shares to AMEC without regard to the Guidelines. In addition, upon the closing of the tender offer, the Guidelines will no longer apply.

 

3.

Satisfaction of outstanding Company equity awards granted on or before 8 November 2012 (the “Pre-Nov. 2012 Awards”):

 

a.

Outstanding options and RSUs will vest in full on the day AMEC acquires control of the Company (the “Offer Closing”).

 

b.

The 2012 PRSUs will vest upon the Offer Closing to the extent that the Compensation Committee has certified the performance condition has been met as at the last practicable measurement date prior to the day of the Offer Closing (the Compensation Committee has not yet certified as to the performance condition of these awards).

 

 

FOSTER WHEELER AG c/o FOSTER WHEELER INC.

53 FRONTAGE ROAD, HAMPTON, NJ 08827-9000 908-730-4000 www.fwc.com

 

c.

We anticipate that following the Offer Closing, all vested Pre-Nov. 2012 Awards – whether options, RSUs or PRSUs - will be satisfied by the payment of a cash sum, provided that in the unlikely event that upon the Offer Closing the cash participants would receive per Company share is substantially below the value participants would receive upon tendering their Company shares to AMEC (as determined by the Compensation Committee), the Compensation Committee reserves the right to satisfy the Pre-Nov. 2012 Awards by delivery of Company shares to participants. If Company shares are delivered to you, the Company will arrange the sale of shares on your behalf, as necessary, to cover applicable withholding taxes and, in the case of options, the exercise price you would have been required to pay to exercise such option.

 

d.

Assuming participants will receive cash in satisfaction of their Pre-Nov. 2012 Awards, the gross cash sum will be calculated by multiplying the number of shares that have vested by Foster Wheeler AG’s closing price on the last trading day immediately prior to the Offer Closing.

 

e.

The cash amount will be paid less any withholding taxes and, in the case of options, the deduction of the exercise price a participant would have been required to pay to exercise such option. All cash amounts will be transferred to participants’ accounts held with Wells Fargo no later than 10 business days after the Offer Closing.

 

f.

On receipt of the cash amount participants can instruct Wells Fargo to transfer the monies to another bank account should they wish.

  

4.

Replacement of outstanding Company equity awards granted after 8 November 2012 (the “Post-Nov. 2012 Awards”):

 

a.

Upon the Offer Closing, RSUs will be replaced with equivalent value replacement equity awards for AMEC shares.

 

b.

Upon the Offer Closing, PRSUs will be replaced at target value (50% of maximum award). Replacement equity awards for AMEC shares will not be subject to any performance conditions.

 

c.

Terms of replacement awards will be equivalent in all material respects to the Company equity awards they replace.

 

d.

The number of AMEC shares subject to each replacement award will be calculated in accordance with the following formula:

  

F x 1.7996 = A

Where

 

“F” is the number of Foster Wheeler AG shares subject to the equity award immediately prior to the Offer Closing, save that in the case of PRSUs only “F” shall be 50% of the maximum award, and

 

“A” is the number of AMEC shares, rounded down to the nearest whole number, subject to the replacement award.

 

 

e.

Participants will receive further communication and documentation regarding the replacement awards from AMEC after the Offer Closing.

 

 

* * * * * * * * * *

 

If you have any questions about any of these matters, please contact me at (908) 730-4270 or at john_doyle@fwc.com.