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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K/A
Amendment No. 1
Current Report Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 22, 1999
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WILMAR INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
New Jersey 0-27424 22-2232386
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
303 Harper Drive, Moorestown, New Jersey 08057
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (856)533-3104
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(Former Name or Form Address, if Changed Since Last Report)
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Item 5. Other Events. The Company's Form 8-K dated December 29, 1999 is
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amended to add the ninth paragraph set forth below. In accordance with SEC
rule, the entire Item 5 is set out in full.
On December 22, 1999, Wilmar Industries, Inc., a New Jersey corporation
("Wilmar" or the "Company") entered into an Agreement and Plan of Merger and
Recapitalization (the "Merger Agreement") with WM Acquisition, Inc., a New
Jersey corporation and a subsidiary of an investor group led by Parthenon
Capital and Chase Capital Partners.
Pursuant to and subject to the terms and conditions of the Merger
Agreement, in the merger contemplated by the Merger Agreement (the "Merger"), WM
Acquisition will be merged with and into the Company, and the Company shall
remain as the surviving corporation. Each outstanding share of common stock of
the Company (the "Common Stock") (other than a number of shares held by William
S. Green, as described below) will be converted into the right to receive $18.25
in cash, without interest.
The investor group includes Parthenon Capital, Chase Capital Partners, and
General Motors Pension Fund. In addition, the Company's Chairman, William S.
Green and other members of management will contribute approximately $4.0 million
of the $134.0 million of committed equity capital required to finance the
transaction. As part of this $4.0 million contribution, Mr. Green will exchange
$3.0 million of his common shares for a new series of preferred stock which will
be converted as part of the merger into shares of senior preferred stock and
common stock of the acquiring company. Mr. Green, who owns approximately 15% of
the outstanding common stock of the Company, has agreed to vote his shares in
favor of the Merger.
Completion of the Merger is subject to customary conditions including
Wilmar shareholder approval, receipt of regulatory approvals and receipt of debt
financing pursuant to commitment letters.
It is anticipated that the common stock of the Company will be delisted
from the NASDAQ National Market System as a result of the Merger.
Following the public announcement of the Merger, a purported shareholders
class action complaint was filed against the Company, the Company's directors
and Parthenon Capital in the Superior Court of New Jersey, Chancery Division.
The complaint alleges, among other things, that the Company's directors have
breached their fiduciary duties and seeks to enjoin the Merger and also seeks
damages. The Company denies all allegations of wrongdoing and the Company
intends to defend itself vigorously against such claims.
A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and is
incorporated by reference.
A copy of the press release announcing the signing of the Merger Agreement,
issued by the Company on December 22, 1999, is attached hereto as Exhibit 99.1
and is incorporated by reference.
On March 27, 2000, Wilmar and WM Acquisition, Inc. entered into an
amendment to the Merger Agreement (the "Amendment") to clarify the shareholder
vote required to approve the Merger. A copy of the Amendment is attached hereto
as Exhibit 2.2 and is incorporated by reference.
The foregoing description of the Merger and related transactions does not
purport to be complete and is qualified in its entirety by reference to the
Merger Agreement and the Press Release, which are attached hereto and
incorporated herein by reference.
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Item 7. Financial Statements and Exhibits. The Company's Form 8-K filed
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December 29, 1999 is amended to add the exhibit set forth below:
(c) Exhibits.
(2.2) Amendment to Agreement and Plan of Merger and Recapitalization
between WM Acquisition, Inc. and Wilmar Industries, Inc., dated March 27, 2000.
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SIGNATURE
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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.
WILMAR INDUSTRIES, INC.
Date: April 11, 2000 By: /s/ William E. Sanford
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William E. Sanford
Senior Vice President and
Chief Financial Officer
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Exhibit 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER AND RECAPITALIZATION
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AMENDMENT, dated as of March 27, 2000 ("Amendment"), by and between WM
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Acquisition, Inc., a New Jersey corporation (the "Merger Sub"), and Wilmar
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Industries, Inc., a New Jersey corporation (the "Company"), to the Agreement and
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Plan of Merger and Recapitalization (the "Merger Agreement"), dated as of
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December 22, 1999, by and between Merger Sub and the Company.
RECITALS:
WHEREAS, Merger Sub and the Company entered into the Merger Agreement
pursuant to the terms of which Merger Sub will be merged with and into the
Company (the "Merger") on the terms and conditions contained therein and in
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accordance with the New Jersey Business Corporation Act (the "NJBC");
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WHEREAS, certain terms used in this Amendment which are capitalized
and not otherwise defined herein have the meanings specified in the Merger
Agreement, and certain terms which are not capitalized have the meanings
specified in Section 8.1 of the Merger Agreement; and
WHEREAS, the Company and Merger Sub desire to amend the Merger
Agreement in order to reflect the statutory requirement of shareholder approval
necessary for the Merger under applicable state law.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained in this
Amendment and the Merger Agreement, the parties agree as follows:
1. Amendment. The second sentence of Section 3.4(a) of the Merger
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Agreement is hereby amended and restated in its entirety to read as follows:
"The execution and delivery of this Agreement by the Company and the
consummation by the Company of such transactions have been duly and validly
authorized by all necessary corporate action and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or to
consummate such transactions, other than, with respect to the Merger, the
adoption of this Agreement by the affirmative vote of a majority of the votes
cast by the holders of shares of Common Stock entitled to vote at the Company
Stockholders Meeting (the "Requisite Company Vote")."
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2. Ratification of the Merger Agreement. Except as otherwise expressly
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provided in this Amendment, all of the terms and conditions of the Merger
Agreement are hereby ratified and shall remain unchanged and continue in full
force and effect.
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3. Counterparts. This Amendment may be executed in any number of
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counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
4. Entire Agreement. This Amendment, the Merger Agreement (including any
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exhibits and annexes thereto), the Company Disclosure Letter and the Merger Sub
Disclosure Letter constitute the entire agreement and supersede all other prior
agreements, understandings, representations and warranties, both written and
oral, among the parties, with respect to the subject matter of this Amendment.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties to this Amendment as of
the date first written above.
WM ACQUISITION, INC.
By: /s/ Drew Sawyer
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Name: Drew Sawyer
Title: Vice President
WILMAR INDUSTRIES, INC.
By: /s/ Fred B. Gross
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Name: Fred B. Gross
Title: Vice President
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