Foster Wheeler To Delist From NASDAQ
Foster Wheeler AG announced today that it intends to voluntarily delist the registered shares of the Company, par value CHF 3 per share, from the NASDAQ Global Select Market (“NASDAQ”) and, provided that the requirements for deregistration are met, in due course, it intends to subsequently deregister the Shares under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company also intends to suspend its reporting obligations under the Exchange Act once it is eligible to do so.
As previously disclosed, pursuant to the Implementation Agreement dated 13 February 2014, by and between Amec Foster Wheeler plc (formerly AMEC plc) (“Amec Foster Wheeler”) and the Company (as amended by the letter agreement dated 28 March 2014, the Deed of Amendment dated 28 May 2014 and the Deed of Amendment dated 2 October 2014, the “Implementation Agreement”), Amec Foster Wheeler agreed, among other things, to acquire all of the issued and to be issued Shares. On the terms and subject to the conditions of the Implementation Agreement, AMEC International Investments BV (a wholly owned subsidiary of Amec Foster Wheeler) commenced an exchange offer (the “Offer”) on October 7, 2014 to acquire all of the issued and to be issued Shares. The Offer, which was extended on November 5, 2014 from its original expiration date of November 4, 2014, expired at 11:59 pm, New York City time, on November 12, 2014 (4:59 a.m. London time on November 13, 2014; 5:59 a.m. Zug time on November 13, 2014).
On November 13, 2014 (the "Effective Date"), Amec Foster Wheeler announced the completion of the Offer. AMEC International Investments BV has accepted for payment all Shares that were validly tendered and not validly withdrawn in accordance with the terms of the Offer. As a result, Amec Foster Wheeler, through AMEC International Investments BV, beneficially owns approximately 99.3 percent (99.03%) (including 9,557,671 Shares tendered pursuant to notices of guaranteed delivery) of the outstanding Shares and a change of control has occurred. It is anticipated that Amec Foster Wheeler will complete the acquisition of the Company by effecting a squeeze out merger under Swiss law (the "Squeeze-Out Merger") whereby any remaining holders of Shares will be compensated on the same terms as the Offer. As a result of the completion of the Squeeze-Out Merger, the Company will become a wholly-owned subsidiary of Amec Foster Wheeler and a trading market for the Company’s registered shares will no longer exist.
As of the Effective Date, Clayton C. Daley, Jr., Edward G. Galante, John M. Malcolm and Maureen B. Tart-Bezer each resigned from the Board of Directors of the Company. After giving effect to those resignations, Stephanie S. Newby is the sole member of the Company’s audit committee, and accordingly, the Company is not in compliance with NASDAQ Rule 5605(c)(2)(A), which requires each listed company to have an audit committee comprised of at least three independent directors. Ms. Newby qualifies as an “audit committee financial expert”.
Additionally, in light of the fact that the Offer has closed and Amec Foster Wheeler intends, as described above, to complete the acquisition by effecting the Squeeze-Out Merger, as well as certain other factors, on the Effective Date, the Board of Directors of Foster Wheeler decided to cause the listing of the Company’s Shares to be withdrawn from NASDAQ. In accordance with this decision, on the Effective Date, in connection with the Offer, the Company notified NASDAQ of its intent to remove its Shares from listing on NASDAQ and its intent to file a Form 25, Notification of Removal from Listing and/or Registration under Section 12(b) of the Exchange Act (“Form 25”), with the SEC to delist and/or deregister the Shares.
As disclosed in the notice to NASDAQ, the Company expects to file the Form 25 with the SEC and NASDAQ on or about November 24, 2014. The Form 25 will become effective 10 days after it is filed and the last day of trading of the Shares on NASDAQ will be December 3, 2014. The Company has not arranged (nor is it planning to arrange) for the listing of the Company’s securities on another U.S. securities exchange or for quotation of the Company’s securities on any other quotation medium in the United States. Following the delisting of the Shares from NASDAQ, it is possible that market makers may continue to make a market in the Shares on the over-the-counter market, although there can be no assurances that any trading market for the Shares will exist, and the liquidity of such trading market may be limited.
Provided that the requirements for deregistration are met, in due course, the Company intends to file a Form 15 with the SEC under the Exchange Act, requesting the deregistration of the Shares under Section 12(g) of the Exchange Act and the suspension of the Company’s reporting obligations under Section 15(d) of the Exchange Act. As of the date of the filing of the Form 15, the obligation of the Company and its subsidiaries to file reports under the Exchange Act, including Forms 10-K, 10-Q and 8-K, will be immediately suspended. Other filing requirements will terminate upon the effectiveness of the deregistration under Section 12(g) of the Exchange Act, which is expected to occur 90 days after the filing of the Form 15.
The Company reserves the right, for any reason, to delay these filings or to withdraw them prior to their effectiveness, and to otherwise change its plans in this regard.