UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (Rule 14a-101)
Filed by the Registrant
þ
Filed by a Party other than the Registrant
o
Check the appropriate box:
o
|
|
Preliminary Proxy Statement
|
o
|
|
Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2)
)
|
o
|
|
Definitive Proxy Statement
|
þ
|
|
Definitive Additional Materials
|
o
|
|
Soliciting Material Pursuant to §240.14a-12
|
AMERICAN COMMERCIAL LINES INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
þ
|
|
No fee required.
|
o
|
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
|
|
(1)
|
|
Title of each class of securities to which transaction applies:
|
|
|
|
|
|
|
|
|
|
|
|
(2)
|
|
Aggregate number of securities to which transaction applies:
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
|
Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was
determined):
|
|
|
|
|
|
|
|
|
|
|
|
(4)
|
|
Proposed maximum aggregate value of transaction:
|
|
|
|
|
|
|
|
|
|
|
|
(5)
|
|
Total fee paid:
|
|
|
|
|
|
|
|
|
|
o
|
|
Fee paid previously with preliminary materials.
|
|
o
|
|
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of its
filing.
|
|
(1)
|
|
Amount Previously Paid:
|
|
|
|
|
|
|
|
|
|
|
|
(2)
|
|
Form, Schedule or Registration Statement No.:
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
|
Filing Party:
|
|
|
|
|
|
|
|
|
|
|
|
(4)
|
|
Date Filed:
|
|
|
|
|
|
|
|
|
|
AMERICAN COMMERCIAL LINES
INC.
1701 East Market Street
Jeffersonville, Indiana 47130
SUPPLEMENT DATED DECEMBER 3,
2010 TO DEFINITIVE PROXY STATEMENT
FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER 14, 2010
This is a supplement to the proxy statement dated
November 15, 2010 (the Definitive Proxy
Statement) of American Commercial Lines Inc., or ACL, we,
us, our or the Company. The Definitive Proxy Statement was
mailed to you in connection with the solicitation of proxies for
use at the special meeting of ACL stockholders to be held at
American Commercial Lines Inc., 1701 E. Market Street,
Jeffersonville, Indiana 47130, on December 14, 2010,
beginning at 11:00 a.m. Eastern Time. The special
meeting has been called for the following purposes:
1. To consider and vote on a proposal to adopt the
Agreement and Plan of Merger, dated as of October 18, 2010,
as it may be amended from time to time, which we refer to as the
merger agreement, by and among ACL, Finn Holding Corporation, a
Delaware corporation, which we refer to as Parent, and Finn
Merger Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent, which we refer to as Merger Sub. A copy of
the merger agreement is attached as
Annex A
to the
Definitive Proxy Statement.
2. To consider and vote on a proposal to adjourn the
special meeting, if necessary or appropriate, to solicit
additional proxies if there are insufficient votes at the time
of the special meeting to approve the proposal to adopt the
merger agreement.
Only stockholders of record of our common stock as of the close
of business on October 29, 2010, will be entitled to notice
of, and to vote at, the special meeting and any adjournment or
postponement of the special meeting. All stockholders of record
are cordially invited to attend the special meeting in person.
Our board of directors, upon the unanimous recommendation of the
special committee of the independent directors, has determined
(with Mr. Ryan abstaining) that the merger is advisable and
in the best interests of ACL and its stockholders and approved
and declared advisable the merger agreement and the merger and
the other transactions contemplated by the merger agreement.
The board of directors of ACL continues to recommend that you
vote FOR approval of the proposal to adopt the
merger agreement and FOR approval of the proposal to
adjourn the special meeting, if necessary or appropriate, to
solicit additional proxies.
If you have not already submitted a proxy for use at the
special meeting, you are urged to do so promptly. No action in
connection with this supplement to the Definitive Proxy
Statement is required by any stockholder who has previously
delivered a proxy and who does not wish to revoke or change that
proxy. Information about voting or revoking a proxy appears on
page 23 of the Definitive Proxy Statement.
Introduction
The information provided in the Definitive Proxy Statement that
was previously mailed to ACL stockholders of record as of
October 29, 2010 is supplemented by the information
contained in this supplement. The following supplemental
information should be read in conjunction with the Definitive
Proxy Statement, which should be read in its entirety. Defined
terms used but not defined herein have the meanings set forth in
the Definitive Proxy Statement.
Supplemental
Disclosure
The following disclosure supplements the discussion at
page 53 of the Definitive Proxy Statement concerning
litigation relating to the merger.
Litigation
Relating to the Merger
On October 22, 2010, a putative class action lawsuit was
commenced against us, our directors, Platinum Equity, Parent and
Merger Sub in the Court of Chancery of the State of Delaware.
The lawsuit is captioned
Leonard Becker v. American
Commercial Lines Inc., et al,
Civil Action
No. 5919-VCL.
Plaintiff amended his complaint on November 5, 2010, prior
to a formal response from any defendant. On November 9,
2010, a second putative class action lawsuit was commenced
against us, our directors, Platinum Equity, Parent and Merger
Sub in the Superior/Circuit Court for Clark County in the State
of Indiana. The lawsuit is captioned
Michael Eakman v.
American Commercial Lines Inc., et al.,
Case
No. 1002-1011-CT-1344.
In both actions, plaintiffs allege generally that our directors
breached their fiduciary duties in connection with the
transaction by, among other things, carrying out a process that
they allege did not ensure adequate and fair consideration to
our stockholders. They also allege that various disclosures
concerning the transaction included in the Definitive Proxy
Statement are inadequate. They further allege that Platinum
Equity aided and abetted the alleged breaches of duties.
Plaintiffs purport to bring the lawsuits on behalf of the public
stockholders of the Company and seek equitable relief to enjoin
consummation of the merger, rescission of the merger
and/or
rescissory damages, and attorneys fees and costs, among other
relief. The Company believes the lawsuits are without merit.
On December 3, 2010, counsel for the parties in the Delaware
action entered into a Memorandum of Understanding
(MOU) in which they agreed on the terms of a
settlement of the Delaware litigation, which includes the
supplementation of the Definitive Proxy Statement that this
Supplement constitutes and the dismissal with prejudice of all
claims against all of the defendants in both the Delaware and
Indiana actions. The proposed settlement is conditional upon,
among other things, the execution of an appropriate stipulation
of settlement and final approval of the proposed settlement by
the Delaware Court of Chancery. Counsel for the named plaintiffs
in both actions agreed to stay the actions pending consideration
of final approval of the settlement in the Delaware Court of
Chancery. Assuming such approval, the named plaintiffs in both
actions would dismiss their respective lawsuits with prejudice
against all defendants.
In connection with the settlement agreed upon in the MOU, the
parties contemplate that plaintiffs counsel will seek an
award of attorneys fees and expenses as part of the
settlement. There can be no assurance that the parties will
ultimately enter into a stipulation of settlement or that the
Delaware Court of Chancery will approve the settlement as
stipulated by the parties. In such event, the proposed
settlement as contemplated by the MOU may be terminated. The
settlement will not affect the amount of the merger
consideration that ACL stockholders are entitled to receive in
the merger, or modify any other terms of the merger agreement.
The defendants deny all liability with respect to the facts and
claims alleged in the lawsuits and specifically deny that any
further supplemental disclosure was required under any
applicable rule, statute, regulation or law. Plaintiffs
disagree. Because it will eliminate the uncertainty,
distraction, burden and expense of further litigation and will
permit the merger to proceed without risk of injunctive or other
relief, the defendants have agreed to the terms of the proposed
settlement described above, which includes making the
supplemental disclosures below.
2
Background
of the Merger
The following disclosure supplements the discussion at
page 29 of the Definitive Proxy Statement concerning the
Special Committee meeting on September 17, 2010.
The Special Committee reviewed with Messrs. Ryan and
Pilholski managements updated financial projections for
the third and fourth quarters of 2010 for the Company.
Mr. Pilholski discussed with the Special Committee that the
change in the forecasts for the third and fourth quarters was
largely due to the loss associated with a Jeffboat contract and
the delayed grain shipping season.
The following disclosure supplements the discussion at
page 31 of the Definitive Proxy Statement concerning the
Special Committee meeting on October 13, 2010 and the
BB&T Capital Markets research report by inserting the
following sentence after the fifth sentence of the second full
paragraph on page 31.
Management believed that while the analysts understood the
directional progress the Company was achieving as a result of
its strategic initiatives, the analysts were overly optimistic
about the likelihood and timing of the Company achieving the
financial results predicted by the analysts in their report.
The following disclosure supplements the discussion at
page 33 of the Definitive Proxy Statement concerning
contacts with the 86 parties contacted by BofA Merrill Lynch,
consisting of 28 potential strategic buyers and 58 potential
financial sponsor buyers.
BofA Merrill Lynch contacted all of the parties identified by
BofA Merrill Lynch and the Company to the Special Committee as
candidates for contact. Non-disclosure agreements were entered
into with 13 of these entities and information was shared with
them pursuant to those agreements. There were no proposals
submitted or any other indications of interest provided by the
86 parties contacted. Despite a broad solicitation of
potentially interested parties, the Company did not receive any
alternative acquisition proposals during the go-shop
period.
Reasons
for the Merger; Recommendation of the Special Committee and
Board of Directors
The following disclosure supplements the discussion at
page 33 of the Definitive Proxy Statement concerning the
Special Committee of the board of directors consisting solely of
independent directors by inserting the following sentence after
the first sentence of the paragraph under the heading
Special Committee of the Board of Directors on
page 33.
Upon forming the Special Committee, the board of directors
affirmatively determined that Mr. Nils Larsen was
disinterested and independent and could serve on the Special
Committee. The board of directors noted his relationship with
EGI, an affiliate of GVI, a significant Company stockholder. The
board of directors believed that GVI had the same interest as
other stockholders in obtaining the maximum price it could from
a transaction.
The following disclosure supplements the discussion at
page 34 of the Definitive Proxy Statement concerning the
results of a premium analysis by adding the following paragraph
after the penultimate paragraph on page 36 of the
Definitive Proxy Statement.
The Special Committee considered premiums paid in other
transactions where publicly traded companies were acquired by
private equity firms calculated as of the date of execution of
the merger agreement. The Special Committee determined that it
was unduly narrow to examine premiums solely in the context of
one trading day preceding the execution of the merger agreement
and considered the proposed merger consideration in light of the
Companys stock price performance over the weeks and months
prior to the date of execution.
3
Opinion
of Financial Advisor
Opinion
of Merrill Lynch, Pierce, Fenner & Smith
Incorporated
The following disclosure supplements the discussion at
page 39 of the Definitive Proxy Statement concerning the
Selected Publicly Traded Company Analysis performed by BofA
Merrill Lynch by replacing the first two sentences of the third
full paragraph on page 39.
BofA Merrill Lynch reviewed, among other things, per share
equity values, based on closing stock prices on October 15,
2010, of the selected publicly traded companies as a multiple of
calendar years 2010 and 2011 estimated earnings per share,
commonly referred to as EPS, which are referred to below as
Price/2010E Earnings and Price/2011E
Earnings, respectively. BofA Merrill Lynch also reviewed
enterprise values of the selected publicly traded companies,
calculated as equity values based on closing stock prices on
October 15, 2010, plus debt, less cash, as a multiple of
calendar years 2010 and 2011 estimated earnings before interest,
taxes, depreciation and amortization, commonly referred to as
EBITDA, which are referred to below as Enterprise
Value/2010E EBITDA and Enterprise Value/2011E
EBITDA, respectively.
This analysis indicated the following:
Selected
Publicly Traded Companies Analysis Multiples
|
|
|
|
|
|
|
|
|
|
|
High
|
|
Low
|
|
Price/2010E Earnings*
|
|
|
33.3
|
x
|
|
|
10.6
|
x
|
Price/2011E Earnings*
|
|
|
18.9
|
x
|
|
|
7.1
|
x
|
Enterprise Value/2010E EBITDA
|
|
|
8.7
|
x
|
|
|
4.4
|
x
|
Enterprise Value/2011E EBITDA
|
|
|
7.8
|
x
|
|
|
5.6
|
x
|
|
|
|
*
|
|
Low multiple excludes K-Sea Transportation Partners L.P., which
has projected negative EPS
|
The following disclosure supplements the discussion at
page 40 of the Definitive Proxy Statement concerning the
Selected Precedent Transactions Analysis performed by BofA
Merrill Lynch by replacing the first sentence of the second full
paragraph on page 40.
BofA Merrill Lynch reviewed transaction values, calculated as
the enterprise value implied for the target company based on the
consideration payable in the selected transaction, as a multiple
of the target companys last twelve-month, commonly
referred to as LTM, EBITDA, which is referred to below as
Enterprise Value/LTM EBITDA.
This analysis indicated the following:
Selected
Precedent Transactions Analysis Multiples
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
High
|
|
Low
|
|
Mean
|
|
Median
|
|
Enterprise Value/LTM EBITDA
|
|
|
9.6
|
x
|
|
|
4.2
|
x
|
|
|
6.9
|
x
|
|
|
7.5x
|
|
The following disclosure supplements the discussion at
page 40 of the Definitive Proxy Statement concerning the
Discounted Cash Flow Analysis performed by BofA Merrill Lynch by
replacing the third sentence of the last paragraph on
page 40 of the Definitive Proxy Statement.
These terminal multiples were selected on the basis of how the
Company and certain peer companies traded as a multiple of
historical and estimated EBITDA as of October 15, 2010. For
the purposes of this analysis, mid-cycle EBITDA means the
Companys normalized EBITDA over the period covered by the
Company forecasts, which was utilized to account for future
cyclicality consistent with historical fluctuations in the
Companys financial performance and was calculated as the
mean estimated EBITDA over such forecast period for each of the
Cash Flow Neutral Case, the Deferred Investment Case and the
Wall Street Case. The mid-cycle EBITDA amounts utilized for the
purposes of this analysis were $145 million for the Cash
Flow Neutral Case, $106 million for the Deferred Investment
Case, and $125 million for the Wall Street Case.
4
The following disclosure supplements the discussion in the
carryover paragraph at the top of page 41 of the Definitive
Proxy Statement, at the end of the first full sentence on that
page.
This analysis was based upon the Companys unlevered,
after-tax free cash flows, which are distinct from free cash
flows. The free cash flows forecasted by the Companys
senior management for the fiscal years ended December 31,
2010 through 2014 are reflected at pages 43 and 44 of the
Definitive Proxy Statement under the heading Certain
Company Forecasts.
The following disclosure supplements the discussion at
page 41 of the Definitive Proxy Statement concerning the
Discounted Cash Flow Analysis performed by BofA Merrill Lynch by
adding the following sentence before the full first paragraph on
page 41 of the Definitive Proxy Statement.
BofA Merrill Lynch also calculated the implied perpetuity growth
rates for the Company using the same implied per share equity
value reference ranges, EBITDA terminal multiples and discount
rates from the analysis described above, which resulted in
implied perpetuity growth rates ranging from 1.4% to 3.6% for
the Cash Flow Neutral Case, 0.8% to 3.0% for the Deferred
Investment Case, and 1.5% to 3.7% for the Wall Street Case.
The following disclosure supplements the discussion at
page 42 of the Definitive Proxy Statement concerning the
aggregate fee to be paid to BofA Merrill Lynch by replacing the
first sentence of the fourth full paragraph under the heading
Miscellaneous on page 42.
The Company has agreed to pay BofA Merrill Lynch for its
services in connection with the merger an aggregate fee
currently estimated to be approximately $8.3 million,
$100,000 of which was payable upon execution by the Company of
BofA Merrill Lynchs engagement letter, $1 million of
which was payable upon the rendering of BofA Merrill
Lynchs opinion, and the remaining portion of which is
contingent upon the completion of the merger.
The following disclosure supplements the discussion at
page 43 of the Definitive Proxy Statement under the heading
Certain Company Forecasts by adding this parenthetical after the
second sentence of the second paragraph of that discussion.
(The Company also provided sets of financial forecasts for the
fiscal years ended December 31, 2015 and 2016; however,
these were not used by BofA Merrill Lynch in its analyses
because the projections for those years were extrapolations of
the earlier-year forecasts, among other reasons.)
Important
Information Filed with the SEC
Investors and security holders are advised to read the
Definitive Proxy Statement and other documents because they
contain important information about ACL and the proposed
transaction.
Investors and stockholders may obtain a free copy of the
Definitive Proxy Statement and any other relevant documents
filed or furnished by ACL with the SEC (when available) at the
SECs Web site,
www.sec.gov
. In addition, investors
and stockholders may obtain free copies of the documents filed
with the SEC by ACL by contacting the Company by
e-mail
at
aclinesinvestor@aclines.com
or by phone at
800-842-5491
or by going to the investor relations portion of ACLs
website,
www.aclines.com
.
ACL and its directors and certain executive officers may be
deemed to be participants in the solicitation of proxies from
ACL stockholders in respect of the proposed transaction.
Information about the directors and executive officers of ACL
and their respective interests in ACL by security holdings or
otherwise is set forth in the Definitive Proxy Statement.
Forward-Looking
Statements
This filing contains certain forward-looking
statements within the meaning of the safe harbor
provisions of the Private Securities Litigation Reform Act of
1995. Forward-looking statements are statements that are not
historical facts. Words such as expect(s),
feel(s), believe(s), will,
may, anticipate(s),
5
intend(s) and similar expressions are intended to
identify such forward-looking statements. These statements
include, but are not limited to, the expected timing of the
acquisition, the ability of Parent and ACL to close the
acquisition and that the proposed settlement will be finalized.
All of such information and statements are subject to certain
risks and uncertainties, the effects of which are difficult to
predict and generally beyond the control of ACL, that could
cause actual results to differ materially from those expressed
in, or implied or projected by, the forward-looking information
and statements. These risks and uncertainties include, but are
not limited to: (i) uncertainties associated with the
acquisition of the Company by Parent; (ii) uncertainties as
to the timing of the merger; (iii) failure to receive
approval of the transaction by ACL stockholders; (iv) the
ability of the parties to satisfy closing conditions to the
transaction; (v) the ability to finalize the proposed
settlement, including obtaining court approval; (v) changes
in economic, business, competitive,
and/or
regulatory factors; and (vi) those risks identified and
discussed by us in our filings with the U.S. Securities and
Exchange Commission, including the Definitive Proxy Statement.
All of the forward-looking statements we make in this document
are qualified by the information contained herein or contained
or incorporated by reference in the Definitive Proxy Statement,
including, but not limited to, (a) the information
contained under this heading and (b) the information
contained under the headings Risk Factors in our
consolidated financial statements and notes thereto included in
our most recent filings on
Forms 10-Q
and
10-K
(see Where You Can Find More Information beginning
on page 85 of the Definitive Proxy Statement). We are under
no obligation to publicly release any revision to any
forward-looking statement contained or incorporated herein to
reflect any future events or occurrences.
You should carefully consider the cautionary statements
contained or referred to in this section in connection with any
subsequent written or oral forward-looking statements that may
be issued by us or persons acting on our behalf.
6
American Commercial Lines (MM) (NASDAQ:ACLI)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
American Commercial Lines (MM) (NASDAQ:ACLI)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024