- Current report filing (8-K)
April 06 2010 - 5:31PM
Edgar (US Regulatory)
UNITED STATES
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)
April 6, 2010
THE TALBOTS, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware
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1-12552
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41-1111318
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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One Talbots Drive, Hingham, Massachusetts
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02043
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code
(781) 749-7600
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):
þ
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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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TABLE OF CONTENTS
Item 1.01 Entry Into a Material Definitive Agreement.
Second Amendment to Agreement and Plan of Merger
On
April 6, 2010,
The Talbots, Inc. (Talbots), Tailor Acquisition, Inc., a Delaware
corporation and wholly-owned subsidiary of Talbots (Merger Sub), and BPW Acquisition Corp.
(BPW) entered into the Second Amendment to Agreement and Plan of Merger (the Second Amendment),
amending the Agreement and Plan of Merger, dated as of December 8, 2009, by and among Talbots, BPW
and Merger Sub, as previously amended by the First Amendment to Agreement and Plan of Merger, dated as of February 16, 2010 (as amended, the Merger Agreement).
The Second Amendment provides that
immediately following Merger Subs merger with and into BPW (the Merger) pursuant to and subject to the terms of the Merger Agreement, with BPW becoming a wholly-owned
subsidiary (the Surviving Corporation) of Talbots, Talbots will merge the Surviving
Corporation with and into Talbots pursuant to Section 253 of the Delaware General Corporation Law, with Talbots continuing as the surviving corporation.
A copy of the Second Amendment is attached hereto as Exhibit 2.1 and is incorporated herein by
reference.
Item 8.01 Other Events.
On April 6, 2010, BPW filed a definitive proxy statement with the Securities and Exchange
Commission in connection with launching its consent solicitation to amend the existing warrant
agreement relating to warrants to purchase shares of BPW common stock (BPW warrants).
The amendment to the existing warrant agreement will require the consent of (i) holders of record of
BPW warrants as of 5:00 p.m. EDT on March 17, 2010 exercisable for a majority of the shares of BPW
common stock issuable on exercise of all outstanding BPW warrants and (ii) holders of record of BPW
warrants as of the record date exercisable for a majority of the shares of BPW common stock
issuable on exercise of all outstanding BPW warrants issued in BPWs initial public offering.
If the amendment to the existing warrant agreement becomes effective, holders of BPW warrants will not
be able to exercise their BPW warrants for up to one year from the date of the completion of BPWs
initial business combination, whether such initial business combination is the Merger or a
different qualifying transaction (unless, in the case of BPW warrants other than BPW warrants
issued to BPWs sponsors prior to BPWs initial public offering, the board of directors of BPW (or
the board of directors of Talbots if the Merger has been completed) at such time determines, in its
sole discretion, to accelerate the exercisability of such BPW warrants). In addition, the amendment
to the existing warrant agreement will provide that the BPW warrants will no longer be entitled to the
benefit of anti-dilution protections and other provisions in the existing warrant agreement that
will be removed or modified. For example, the amendment to the existing warrant agreement will provide that
in the event of a stock split with respect to BPW common stock (or Talbots common stock if the
Merger has been completed), the terms of the BPW warrants will provide for no corresponding
increase to the number of shares of BPW common stock or Talbots common stock, as applicable,
issuable on exercise of BPW warrants and corresponding decrease of the exercise price. In addition,
if the amendment to the existing warrant agreement is approved, upon the occurrence of certain future events
(other than BPWs initial business combination), including without limitation certain
reclassifications, reorganizations, mergers or consolidations involving BPW (or Talbots if the
Merger has been completed), or upon a dissolution of BPW (or Talbots if the Merger has been
completed) following certain asset sales or transfers involving BPW (or Talbots if the Merger has
been completed), the board of directors of BPW (or the board of directors of Talbots if the Merger
has been completed), at such time will have the option to cancel each BPW warrant in exchange for
the right to receive a cash payment equal to the excess, if any, of the fair market value (as
determined by the board of directors of BPW or Talbots, as applicable, at such time, acting in good
faith and its sole discretion) of the consideration that the holder of such BPW warrant would have
received if such holder had exercised such BPW warrant immediately prior to such event, over the
exercise price then applicable to such BPW warrant.
The consent solicitation is scheduled to expire at 5:00 p.m., New York City time on April 8,
2010, unless extended by BPW.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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2.1
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Second Amendment to Agreement and Plan of Merger, dated as of April
6, 2010, by and among The Talbots, Inc., Tailor Acquisition, Inc. and
BPW Acquisition Corp.
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********************************
Cautionary Statement and Certain Risk Factors to Consider
In addition to the information set forth in this
Form 8-K
, you should carefully consider the
risk factors and risks and uncertainties included in each of Talbots and BPWs Annual Report on
Form 10-K and Quarterly Reports on
Form 10-Q
, as well as in this
Form 8-K
below.
This
Form 8-K
contains forward-looking information. These statements may be identified by
such forward-looking terminology as expect, achieve, plan, look, believe, anticipate,
outlook, will, would, should, potential, or similar statements or variations of such
terms. All of the information concerning Talbots or BPWs outlook, future liquidity, future
financial performance and results, future credit facilities and availability, future cash flows and
cash needs, and other future financial performance or financial position, as well as assumptions
underlying such information, constitute forward-looking information. Forward looking statements
are based on a
series of expectations, assumptions, estimates and projections about BPW and/or Talbots, are
not guarantees of future results or performance, and involve substantial risks and uncertainty,
including assumptions and projections concerning liquidity, internal plans, regular-price and
markdown selling, operating cash flows, and credit availability for all forward periods. Business
and forward-looking statements involve substantial known and unknown risks and uncertainties,
including the following risks and uncertainties:
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Talbots and BPWs ability to satisfy the conditions to consummation of the
contemplated transactions;
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BPWs and Talbots ability to obtain the necessary participation of BPW warrant
holders in the exchange of BPW warrants for Talbots stock or warrants;
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Talbots ability to satisfy the conditions to the $200 million credit commitment
provided by GE or, failing that, to obtain sufficient alternative financing on a
timely basis;
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the availability of proceeds of the BPW trust account following any exercise by
stockholders of their conversion rights and the incurrence of transaction expenses;
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the continuing material impact of the deterioration in the U.S. economic
environment over the past two years on Talbots business, continuing operations,
liquidity, financing plans, and financial results, including substantial negative
impact on consumer discretionary spending and consumer confidence, substantial loss of
household wealth and savings, the disruption and significant tightening in the U.S.
credit and lending markets, and potential long-term unemployment levels;
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Talbots level of indebtedness and its ability to refinance or otherwise address
its short-term debt maturities, including all Aeon short-term indebtedness due
April 16, 2010, on the terms or in amounts needed to satisfy maturities and to address
its longer-term liquidity and cash needs, as well as its working capital, strategic
initiatives and other cash requirements;
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any lack of sufficiency of available cash flows and other internal cash resources
to satisfy all future operating needs and other Talbots cash requirements;
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satisfaction of all borrowing conditions under all Aeon credit facilities including
no events of default, accuracy of all representations and warranties, solvency
conditions, absence of material adverse effect or change, and all other borrowing
conditions;
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risk of any default under Talbots Aeon credit facilities;
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Talbots ability to achieve its 2009 financial plan for operating results, working
capital, liquidity and cash flows;
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risks associated with Talbots appointment of and transition to a new exclusive
global merchandise buying agent and that the anticipated benefits and cost savings
from this arrangement may not be realized or may take longer to realize than expected,
and risk that upon any cessation of the relationship for any reason Talbots would be
able to successfully transition to an internal or other external sourcing function;
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Talbots ability to continue to purchase merchandise on open account purchase terms
at existing or future expected levels and with extended payment of accounts payable
and risk that suppliers could require earlier or immediate payment or other security
due to any payment concern or timing;
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risks and uncertainties in connection with any need to source merchandise from
alternate vendors;
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any disruption in Talbots supply of merchandise;
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Talbots ability to successfully execute, fund, and achieve supply chain
initiatives, anticipated lower inventory levels, cost reductions, and other
initiatives;
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the risk that anticipated benefits from the sale of the J. Jill brand business may
not be realized or may take longer to realize than expected and the risk that
estimated or anticipated costs, charges and liabilities to settle and complete the
transition and exit from and disposal of the J. Jill brand business, including both
retained obligations and contingent risk for assigned obligations, may materially
differ from or be materially greater than anticipated;
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Talbots ability to accurately estimate and forecast future regular-price and
markdown selling, operating cash flows and other future financial results and
financial position;
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the success and customer acceptance of Talbots merchandise offerings;
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future store closings and success of and necessary funding for closing
underperforming stores;
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risk of impairment of goodwill and other intangible and long-lived assets; and
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the risk of continued compliance with NYSE continued listing conditions.
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All of the forward-looking statements are as of the date of this
Form 8-K
only. In each case,
actual results may differ materially from such forward-looking information. Neither Talbots nor BPW
can give any assurance that such expectations or forward-looking statements will prove to be
correct. An occurrence of or any material adverse change in one or more of the risk factors or
risks and uncertainties referred to in this
Form 8-K
or included in Talbots and/or BPWs periodic
reports filed with the Securities and Exchange Commission could materially and adversely affect
Talbots and/or BPWs continuing operations and Talbots and/or BPWs future financial results,
cash flows,
prospects, and liquidity. Except as required by law, neither Talbots nor BPW undertakes or
plans to update or revise any such forward-looking statements to reflect actual results, changes in
plans, assumptions, estimates or projections, or other circumstances affecting such forward-looking
statements occurring after the date of this Form 8-K, even if such results, changes or
circumstances make it clear that any forward-looking information will not be realized. Any public
statements or disclosures by Talbots and BPW following this Form 8-K which modify or impact any of
the forward-looking statements contained in this Form 8-K will be deemed to modify or supersede
such statements in this Form 8-K.
Important Additional Information and Where to Find It
This communication does not constitute an offer to sell or the solicitation of an offer to buy
any securities or a solicitation of any vote, consent or approval. Talbots has filed with the SEC,
and the SEC has declared effective, a Registration Statement on Form S-4 containing a
Prospectus/Proxy Statement/Information Statement regarding the proposed merger transaction between
Talbots and BPW. The final Prospectus/Proxy Statement/Information Statement regarding the proposed
merger transaction has been mailed to stockholders of Talbots and BPW. Talbots has also filed with
the SEC, and the SEC has declared effective, a Registration Statement on Form S-4 containing a
Prospectus/Offer to Exchange and other documents, as required, in connection with the warrant
exchange offer. The Prospectus/Offer to Exchange and related offer documents have been mailed to
warrantholders of BPW.
Investors and security holders are urged to read the Prospectus/Proxy
Statement/Information Statement, the Prospectus/Offer to Exchange, any amendments or supplements
thereto and any other relevant documents filed with the SEC when available carefully because they
contain important information.
Investors and security holders will be able to obtain free copies
of the Registration Statements, the final Prospectus/Proxy Statement/Information Statement, the
Prospectus/Offer to Exchange, any amendments or supplements thereto and other documents filed with
the SEC by Talbots and BPW through the web site maintained by the SEC at
www.sec.gov
. In
addition, investors and security holders will be able to obtain free copies of the Registration
Statements, the final Prospectus/Proxy Statement/Information Statement, the Prospectus/Offer to
Exchange, and any amendments or supplements thereto when they become available from Talbots by
requesting them in writing at Investor Relations Department, One Talbots Drive, Hingham, MA 02043,
or by telephone at (781) 741-4500. The documents filed by BPW may also be obtained by requesting
them in writing to Doug McGovern at BPW Acquisition Corp., 767 Fifth Avenue, 5th Floor, NY, NY
10153, or by telephone at (212) 287-3200.
The offer by Talbots to exchange all warrants exercisable for shares of BPW common stock for
shares of Talbots common stock and warrants exercisable for shares of Talbots common stock, subject
to the election and proration procedures set forth in the Prospectus/Offer to Exchange, will only
be made pursuant to such Prospectus/Offer to Exchange, the letter of election and transmittal and
other offer documents initially filed with the SEC on March 1, 2010, as amended or supplemented.
The warrant exchange offer is scheduled to expire at 6:00 p.m.,
New York City time, on April 6,
2010,
unless further extended
. If the offer is extended, Talbots will notify the exchange agent for
the offer and issue a press release announcing the extension on or before 9:00 a.m. New York City
time on the first business day following the date the exchange offer was scheduled to expire.
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.
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THE TALBOTS, INC.
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Dated: April 6, 2010
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By:
Name:
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/s/ Richard T. OConnell, Jr.
Richard T. OConnell, Jr.
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Title:
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Executive Vice
President, Real Estate,
Legal, Store Planning &
Design and Construction,
and Secretary
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EXHIBIT INDEX
2.1
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Second Amendment to Agreement and Plan of Merger, dated as of April
6, 2010, by and among The Talbots, Inc., Tailor Acquisition, Inc. and
BPW Acquisition Corp.
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