form8k.htm
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): September 8, 2008 (September 7,
2008)
UST
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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0-17506
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06-1193986
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(State
or other jurisdiction of
incorporation
or organization)
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(Commission
File
Number)
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(IRS
Employer
Identification
Number)
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6
High Ridge Park, Building A, Stamford, Connecticut
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06905
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(Address
of principal executive offices)
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(Zip
Code)
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(203)
817-3000
(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:
⃞
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
ý 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
1.01 Entry into a Material Definitive
Agreement.
On
September 7, 2008, UST Inc., a Delaware corporation (the “Company”), Altria
Group, Inc., a Virginia corporation (“Parent”), and Armchair Merger Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of Parent (“Acquisition
Sub”), entered into an Agreement and Plan of Merger (the “Merger Agreement”).
Pursuant to the Merger Agreement and subject to the terms and conditions
thereof, Acquisition Sub will be merged with and into the Company (the
“Merger”), with the Company surviving as a wholly-owned subsidiary of
Parent.
Upon
consummation of the Merger, each outstanding share of the Company's common
stock, par value $0.50 per share (the “Common Stock”), other than those held by
the Company, or its wholly-owned subsidiaries, Parent or Acquisition Sub, and
other than those shares with respect to which dissenters rights are properly
exercised, will be converted into the right to receive $69.50 in cash, without
interest. Each option to purchase Common Stock of the Company outstanding at the
effective time of the Merger, whether vested or unvested, will be cancelled and
converted into the right to receive the difference between $69.50 and the
exercise price per share of such option. Similar treatment will be provided to
any other equity awards outstanding at the effective time of the
Merger.
The
completion of the Merger is subject to a number of conditions, including, but
not limited to, (i) approval by the Company's stockholders in accordance with
the applicable requirements of Delaware law, (ii) the expiration or termination
of the applicable waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (iii) the receipt of certain other
regulatory approvals, and (iv) other customary conditions, including the absence
of any law or government order prohibiting the Merger.
The
Company has made customary representations, warranties and covenants in the
Merger Agreement, and certain representations and warranties relating to the
businesses in which it operates, which expire at the effective time of the
Merger. The Company may not solicit competing proposals or, subject to
exceptions set forth in the Merger Agreement, participate in any substantive
discussions or negotiations regarding alternative business transactions. In
addition, the Company has also agreed to operate its business in the ordinary
course of business, consistent with past practice and the terms of certain
interim operations covenants, pending consummation of the Merger.
The
Merger Agreement contains specified termination rights for the parties, and
provides that, in certain circumstances, including the termination of this
Agreement by the Company to accept a superior proposal (should one be received),
the Company would be required to pay Parent a termination fee of $250,000,000
and to reimburse Parent for certain expenses up to an aggregate amount of
$10,000,000. Additionally, in certain circumstances, including the
failure of Parent to obtain financing for the transaction, Parent would be
required to pay the Company, at the Company’s election, a reverse termination
fee of $200,000,000. Either party may terminate the Merger Agreement
if the transaction has not been consummated within nine months of the date of
the Merger Agreement (the “Termination Date”), but, by mutual agreement of the
Company and Parent, the Termination Date may be extended, from time to time, for
up to three additional months, if additional time is needed to obtain any
regulatory approval or remove any other legal impediment, and all other
conditions to closing have been satisfied.
The
foregoing description of the Merger Agreement does not purport to be complete
and is qualified in its entirety by reference to the full text of the Merger
Agreement, a copy of which is attached hereto as Exhibit 1.1 and the terms of
which are incorporated herein by reference. The Merger Agreement
contains representations and warranties of the parties made to (and solely for
the benefit of) the other parties, and the assertions embodied in those
representations and warranties are qualified by confidential information in
schedules that the parties have exchanged with each other. Accordingly,
investors and security holders should not rely on the representations and
warranties as characterizations of the actual state of facts, because they were
made as of the date of the agreement and are modified in important part by the
disclosure schedules.
ADDITIONAL
INFORMATION ABOUT THE MERGER AND WHERE TO FIND IT: The Company intends to file
with the U.S. Securities and Exchange Commission a proxy statement and other
relevant documents in connection with the proposed transaction. INVESTORS AND
SECURITY HOLDERS OF UST INC. ARE URGED TO READ THE PROXY STATEMENT AND OTHER
RELEVANT MATERIALS IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION ABOUT UST INC. AND THE PROPOSED TRANSACTION. Investors and
security holders may obtain a free copy of these materials
(when
they are available) and other documents filed with the U.S. Securities and
Exchange Commission at the U.S. Securities and Exchange Commission’s web site at
http://www.sec.gov. A free copy of the proxy statement, when it becomes
available, also may be obtained from UST Inc., 6 High Ridge Park, Building A,
Stamford, Connecticut 06905, Attn: Investor Relations. Investors and security
holders may access copies of the documents filed with the U.S. Securities and
Exchange Commission by the Company on its web site at
http://www.ustinc.com.
PARTICIPANTS
IN SOLICITATION: The Company, Parent and their executive officers and directors
may be deemed to be participants in the solicitation of proxies from their
respective stockholders with respect to the proposed transaction. Information
regarding the Company’s directors and executive officers is available in its
proxy statement filed with the U.S. Securities and Exchange Commission by the
Company on March 24, 2008. Information regarding Parent's directors and
executive officers is available in its proxy statement filed with the U.S.
Securities and Exchange Commission by Parent on April 24, 2008. 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 proxy statement and other relevant materials
to be filed with the U.S. Securities and Exchange Commission when they become
available.
Item
5.02 Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers.
Section
409A-Related Amendments
On
September 7, 2008, the Company approved amendments to certain of its
compensation and benefits arrangements and individual agreements covering its
Chief Executive Officer, Chief Financial Officer and other named executive
officers to reflect technical changes necessary to comply with section 409A of
the Internal Revenue Code (“Section 409A”). The following
arrangements and individual agreements were so amended:
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·
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Employment
Agreements between the Company and each
of:
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o
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Mr.
Kessler, dated December 7, 2006, and filed on the Company’s Current Report
on Form 8-K filed on December 11,
2006;
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o
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Richard
Kohlberger, dated June 30, 2000, and filed on the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2000;
and
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o
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Raymond
Silcock, dated July 20, 2007, and filed on the Company’s Current Report on
Form 8-K filed on July 23, 2007.
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·
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Severance
Agreement between the Company, International Wine and Spirits Ltd. and
Theodor P. Baesler, dated June 23, 2006, and filed on the Company’s
Current Report on Form 8-K filed on June 27,
2006.
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·
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Severance
Agreement between the Company, U.S. Smokeless Tobacco Company and Daniel
W. Butler, dated June 23, 2006, and filed on the Company’s Current Report
on Form 8-K filed on June 27, 2006.
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·
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Severance
Agreement between the Company and Richard Kohlberger, dated October 27,
1986, the form of which was filed on the Company’s Form 10-Q for the
quarter ended September 30, 1986.
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·
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UST
Inc. 1992 Stock Option Plan, as amended and restated as of December 9,
1999, and filed on the Company’s 2000 Notice of Annual Meeting and Proxy
Statement filed on March 20, 2000, and affected award agreements
thereunder.
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·
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UST
Inc. Stock Incentive Plan, as amended and restated as of February 20,
2003, and as incorporated by reference to Appendix II to 2003 Notice of
Annual Meeting and Proxy Statement dated March 27, 2003, and affected
award agreements thereunder.
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·
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UST
Inc. 2005 Long-Term Incentive Plan, as amended and restated as of August
2, 2007, and filed on the Company’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2007, and affected award agreements
thereunder.
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·
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UST
Inc. Officers’ Supplemental Retirement Plan, as amended and restated as of
January 1, 2003, and filed on the Company’s Annual Report on Form 10-K for
the fiscal year ended December 31,
2003.
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·
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UST
Inc. Benefit Restoration Plan.
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Amendments
to UST Inc. Officers’ Supplemental Retirement Plan (“SOP”) and UST Inc. Benefit
Restoration Plan (“BRP”)
In addition to the technical changes
required to comply with Section 409A, on September 7, 2008, the Company approved
amendments to the SOP and BRP to provide for a lump sum distribution of accrued
benefits under the SOP and BRP to active participants on the earlier of
(i) a participant’s separation from service or (ii) December 31, 2010, and
to freeze future benefit accruals as of December 31, 2008, subject to a change
in control of the Company (as defined in Section 409A), which will encompass the
consummation of the Merger. These amendments to the SOP and BRP will
be memorialized in a letter agreement with each officer of the Company,
including Messrs. Kessler, Kohlberger, Silcock, Baesler and
Butler.
Item
7.01 Regulation FD Disclosure.
The
following information is furnished under Item 7.01, “Regulation FD Disclosure”,
and Item 9.01 “Financial Statements and Exhibits”. This information, including
Exhibits 99.1 shall not be deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or
incorporated by reference in any filing under the Securities Act of 1933, as
amended, or the Exchange Act, except as shall be expressly set forth by specific
reference in such a filing.
On
September 8, 2008, the Company announced that it entered into the Merger
Agreement by press release, a copy of which is furnished as Exhibit 99.1 hereto
and is incorporated herein by reference. The Merger Agreement was unanimously
approved by the members of the Board of Directors of the Company.
SAFE
HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995:
All
statements included in this press release that are not historical in nature are
forward-looking statements made pursuant to the Safe Harbor Provisions of the
Private Securities Litigation Reform Act of 1995. Forward- looking statements
regarding the company's future performance and financial results are subject to
a variety of risks and uncertainties that could cause actual results and
outcomes to differ materially from those described in any forward-looking
statement made by the company. These risks and uncertainties include
uncertainties associated with ongoing and future litigation relating to product
liability, antitrust and other matters and legal and other regulatory
initiatives; the respective company's ability to execute strategic actions,
including the Merger, and its ability to integrate acquired businesses; federal
and state legislation; competition from other companies; consumer preferences;
the cost of tobacco leaf and other raw materials; conditions in capital markets;
and other factors described in this press release and in the respective
company's Annual Report on Form 10-K for the year ended December 31, 2007.
Forward-looking statements made by the respective company are based on its
knowledge of its businesses and the environment in which it operates as of the
date on which the statements were made. Due to these risks and uncertainties, as
well as matters beyond the control of the respective company which can affect
forward-looking statements, you are cautioned not to place undue reliance on
these forward- looking statements, which speak only as of the date of this press
release. The companies undertake no duty to update or revise any forward-looking
statement, whether as a result of new information, future events or
otherwise.
(c) Exhibits
The
following are included as exhibits to this report:
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Exhibit
No.
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Description
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1.1
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Agreement
and Plan of Merger by and among Altria Group, Inc., Armchair Merger Sub,
Inc. and UST Inc., dated as of September 7, 2008.
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99.1
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Joint
Press Release of UST Inc. and Altria Group, Inc., dated
September 8, 2008.
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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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UST
INC.
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(Registrant)
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Date:
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September
8, 2008
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By:
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/s/ Gary B.
Glass
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Name:
Gary B. Glass
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Title: Vice
President, General Counsel and
Assistant
Secretary
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INDEX
TO EXHIBITS
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Exhibit
No.
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Description
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1.1
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Agreement
and Plan of Merger by and among Altria Group, Inc., Armchair Merger Sub,
Inc. and UST Inc., dated as of September 7, 2008.
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99.1
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Joint Press
Release of UST Inc. and Altria Group, Inc., dated September 8,
2008.
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