UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Information To Be Included in Statements Filed Pursuant to § 240.13d-1(a) and
Amendments Thereto Filed Pursuant to § 240.13d-2(a)*
(Amendment No. 5)
VITRAN CORPORATION INC.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
92850E107
(CUSIP Number)
Howard A. Kenny
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
(212) 309-6843
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
September 25, 2013
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because off §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 92850E107 | 13D | Page 2 of 5 Pages |
1 |
NAME OF REPORTING PERSONS
TRANSFORCE INC. | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS*
BK | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
CANADA | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
1,563,478 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
1,563,478 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,563,478 | |||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.51%(1) | |||||
14 | TYPE OF REPORTING PERSON*
CO |
(1) | The percentage owned is based on 16,432,241 shares of common stock outstanding as of July 30, 2013, as reported by the Issuer in its Form 10-Q filed with the Commission on August 6, 2013. |
CUSIP No. 92850E107 | 13D | Page 3 of 5 Pages |
1 |
NAME OF REPORTING PERSONS
TFI HOLDINGS INC. | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS*
AF | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
CANADA | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
1,563,478 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
1,563,478 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,563,478 | |||||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.51%(1) | |||||
14 | TYPE OF REPORTING PERSON*
CO |
(1) | The percentage owned is based on 16,432,241 shares of common stock outstanding as of July 30, 2013, as reported by the Issuer in its Form 10-Q filed with the Commission on August 6, 2013. |
Page 4 of 5 Pages
Item 1. Security and Issuer
Item 1 is hereby amended and restated in its entirety as follows:
This statement on Schedule 13D originally filed on December 31, 2012, as amended by Amendment No. 1 filed on January 23, 2013, Amendment No. 2 filed on January 29, 2013, Amendment No. 3 filed on March 12, 2013, Amendment No. 4 filed on May 31, 2013 and Amendment No. 5 filed on September 26, 2013 (as so amended, the Schedule 13D), is being filed by the undersigned with respect to common stock, without par value (the Common Stock), of Vitran Corporation Inc., an Ontario, Canada corporation (the Issuer). The Issuers principal executive office is located at 185 The West Mall, Suite 701, Toronto, Ontario, Canada, M9C 5L5.
Item 2. Identity and Background
Item 2 is hereby amended and restated in its entirety as follows:
(a-f) This Schedule 13D is being filed by TransForce Inc. (TransForce), a Canada public company and TFI Holdings Inc. (TFI), a Canada company and a direct wholly-owned subsidiary of TransForce. TransForces and TFIs principal place of business 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6. TransForce is a leader in the transportation and logistics industry operating across Canada and the United States.
TFI holds of record all 1,563,478 shares of the Common Stock. Due to TransForces ownership of 100% of TFI, TransForce may be deemed to beneficially own all shares of the Common Stock held by TFI.
During the last five years, neither TFI nor TransForce has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
During the last five years, neither TFI nor TransForce has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and was not and is not as a result of any such proceeding subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Current information concerning the identity and background of each of the directors and executive officers of TFI and TransForce is set forth in Annex A hereto, which is incorporated by reference in response to this Item 2. To the best of each of TFI and TransForces knowledge, during the past five years, none of the directors and executive officers identified on Annex A hereto has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 is hereby amended and restated in its entirety as follows:
TransForce, through its direct wholly-owned subsidiary, TFI, acquired an aggregate of 2,063,478 shares of Common Stock in open market purchases, including 1,490,300 shares acquired through open market purchases on the Toronto Stock Exchange and 573,178 shares acquired through open market purchases on NASDAQ, for an aggregate purchase price of C$10,540,943.53 between December 17, 2012 and May 28, 2013.
The purchase of shares of the Common Stock was funded through borrowings under TransForces general C$800 million credit facility with a bank syndicate of 14 lenders led by National Bank Financial as Sole Bookrunner and Co-Lead Arranger, RBC Capital Markets and Bank of America Merrill Lynch in their capacity as co-lead arrangers and National Bank of Canada acting as Administrative Agent.
On March 7, 2013, TFI sold 500,000 shares of Common Stock in an open market transaction on NASDAQ for a price per share of U.S. $6.20 (an aggregate purchase price of U.S. $3,100,000).
Page 5 of 5 Pages
Item 4. Purposes of Transactions
Item 4 is hereby amended and restated in its entirety as follows:
The information contained in Item 3 above is incorporated herein by reference.
Pursuant to a letter dated September 25, 2013 (the Letter), TransForce notified the Issuer of its interest in acquiring all of the issued and outstanding shares of the Issuer, except for shares already owned by TransForce and/or its affiliates, for cash consideration of $4.50 per share on the terms and subject to the conditions set forth in a letter of intent dated the same date (the Letter of Intent).
The Letter of Intent sets forth the terms of TransForces offer to acquire such shares (the Acquisition). The proposed cash consideration of $4.50 per share assumes, among other things, that the Issuer shall have completed the sale of its United States LTL business, as announced by the Issuer on September 23, 2013, to the satisfaction of TransForce. The structure of the Acquisition may be effected by way of a take-over bid for the issued and outstanding shares of the Issuer, a subsidiary merger, a plan of arrangement under the Business Corporations Act (Ontario), or another structure mutually determined by TransForce, the Issuer and their respective advisors. The Acquisition would be financed through existing cash and credit facilities of TransForce.
The Letter of Intent requests a countersignature from the Issuer by 7:00 a.m. Eastern time on September 30, 2013. If the Letter of Intent is signed by the Issuer, TransForce would have a period of up to 30 days thereafter (the Exclusivity Period) to negotiate the terms of a definitive agreement with the Issuer on an exclusive basis. TransForce may terminate the Letter of Intent at any time during the Exclusivity Period. Either party may terminate the Letter of Intent thereafter.
The Letter of Intent does not constitute a binding offer by TransForce to pursue the Acquisition. The Acquisition is subject to the negotiation and execution of a definitive agreement, as well as the satisfactory completion of due diligence and other customary conditions.
The foregoing description of the Letter and the Letter of Intent is qualified in its entirety by the terms of the Letter and the Letter of Intent, which are filed as Exhibit B and Exhibit C hereto, respectively, and incorporated herein by reference.
In addition, TransForce and TFI intend to review their investment in the Issuer from time to time and, depending upon market conditions and other factors that TransForce and/or TFI may deem material in making an investment decision, TransForce and/or TFI may purchase Common Stock in open market or private transactions, sell all or any portion of the Common Stock currently owned or hereafter acquired by each of TFI or TransForce, either in open market or private transactions, or take other steps to increase or decrease or hedge their investment in the Issuer.
Except as described above, TFI, TransForce and the other persons named in Item 2 above currently have no plans or proposals that relate to or would result in any of the actions specified in clause (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
Item 5 is hereby amended and restated in its entirety as follows:
(a) | TransForce, through its direct wholly-owned subsidiary, TFI, acquired an aggregate of 2,063,478 shares of Common Stock between December 17, 2012 and May 28, 2013, as described in Item 3 above. |
On March 7, 2013, TFI sold 500,000 shares of Common Stock in an open market transaction as described in Item 3 above.
As a result, as of the date hereof, each of TransForce and TFI may be deemed to beneficially own 1,563,478 shares of Common Stock.
Such shares collectively constitute approximately 9.51% of the total number of shares of Common Stock of the Issuer outstanding as of July 30, 2013, as reported by the Issuer in its Form 10-Q filed with the Commission on August 6, 2013. Except for such shares, neither TFI, TransForce, nor any of the other persons identified in Item 2 above own any shares of Common Stock.
(b) | TFI and TransForce have the shared power to vote or to direct the vote and the shared power to dispose or direct the disposition of the 1,563,478 shares of the Common Stock described in (a) above. |
(c) | During the past 60 days, there were no transactions in shares of Common Stock, or any securities directly or indirectly convertible into or exchangeable for shares of Common Stock, by any of the persons identified in Item 2 above. |
(d) | Not applicable |
Item 6. Contracts, Arrangements, Understandings or Relationships with respect to the Issuer
Not applicable.
Item 7. Materials to Be Filed as Exhibits
The Joint Filing Agreement by and between TransForce Inc. and TFI Holdings Inc., dated as of December 30, 2012, is hereby incorporated herein by reference to Exhibit A to the original statement on Schedule 13D filed with the Commission on December 31, 2012.
The Letter dated September 25, 2013 by TransForce Inc. to Vitran Corporation Inc. is filed as Exhibit B hereto.
The Letter of Intent dated September 25, 2013 presented by TransForce Inc. to Vitran Corporation Inc. is filed as Exhibit C hereto.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: September 26, 2013
TRANSFORCE INC. | ||||
By: | /s/ Josiane-Melanie Langlois | |||
Name: | Josiane-Melanie Langlois | |||
Title: | Vice-President, Legal Affairs & Corporate Secretary | |||
TFI HOLDINGS INC. | ||||
By: | /s/ Josiane-Melanie Langlois | |||
Name: | Josiane-Melanie Langlois | |||
Title: | Vice-President, Legal Affairs & Corporate Secretary |
INDEX TO EXHIBITS
Exhibit |
Name | |
A | Joint Filing Agreement by and between TransForce Inc. and TFI Holdings Inc., dated as of December 30, 2012 (incorporated by reference to Exhibit A to the original statement on Schedule 13D filed with the Commission on December 31, 2012 | |
B | Letter dated September 25, 2013 by TransForce Inc. to Vitran Corporation Inc. | |
C | Letter of Intent dated September 25, 2013 presented by TransForce Inc. to Vitran Corporation Inc. |
ANNEX A
Annex A
Certain Information Regarding Directors and Executive Officers of
TransForce Inc. and TFI Holdings Inc
Transforce Inc.
Directors
Name |
Principal Business Address |
Name of Employer |
Principal Occupation |
Citizenship | ||||
Alain Bédard | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | President and CEO, acting CFO, Chairman of the Board | Canadian | ||||
André Bérard | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Corporate Director | Canadian | ||||
Lucien Bouchard | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 |
Davies Ward Phillips and Vineberg LLP | Attorney | Canadian | ||||
Richard Guay | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Consultant and Corporate Director | Canadian | ||||
Neil D. Manning | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 |
TransForce Inc. | Corporate Director | Canadian | ||||
Vincent Musacchio | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 |
Gabriella Holdings Inc. | Banking | Canadian | ||||
Ronald D. Rogers | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Corporate Director | Canadian | ||||
Joey Saputo | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 |
Montreal Impact and Saputo Stadium | Sports Management | Canadian |
Executive Officers
Name |
Title |
Principal Business Address |
Name of Employer |
Principal Occupation |
Citizenship | |||||
Alain Bédard | President and CEO | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Management | Canadian | |||||
Jean-Francois Dodier | Executive Vice President | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Management | Canadian | |||||
Marc Fox | Executive Vice President | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Management | Canadian |
James Houston | Executive Vice President | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Management | Canadian | |||||
Brian Kohut | Executive Vice President | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Management | Canadian | |||||
Rob OReily | Executive Vice President | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Management | Canadian | |||||
Martin Quesnel | Vice President- Finance | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Finance | Canadian | |||||
Johanne Dean | Vice President Marketing and Communications | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Marketing and Communications | Canadian | |||||
Sylvain Desaulniers | Vice President- Human Resources | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Human Resources | Canadian |
Josiane-Melanie Langlois | Vice President- Legal Affairs, Corporate Secretary | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Notary | Canadian | |||||
Chantal Martel | Vice President Compliance and Insurance | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Compliance Officer | Canadian | |||||
Ken Tourangeau | Vice President- Administration | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Administration | Canadian | |||||
Louis Gagnon | Vice President Business Development | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Business Development | Canadian |
TFI Holdings, Inc.
Directors
Name |
Principal Business Address |
Name of Employer |
Principal Occupation |
Citizenship | ||||
Alain Bédard | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | President and CEO | Canadian | ||||
Josiane-Melanie Langlois | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Notary | Canadian |
Executive Officers
Name |
Title |
Principal Business Address |
Name of Employer |
Principal Occupation |
Citizenship | |||||
Alain Bédard | President & Chief Executive Officer | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | President and CEO | Canadian | |||||
Josiane-Melanie Langlois | Vice President Legal Affairs & Corporate Secretary | 8801 Trans-Canada Highway, Suite 500, Saint-Laurent, Quebec, H4S 1Z6 | TransForce Inc. | Notary | Canadian |
Exhibit B
BY E-MAIL
CONFIDENTIAL
September 25, 2013
Vitran Corporation Inc.
185 The West Mall
Suite 701
Toronto, Ontario
M9C 5L5
Attention: Richard D. McGraw, Chairman of the Board
Dear Sirs:
As you know, TransForce Inc. (TransForce) is a significant shareholder of Vitran Corporation Inc. (Vitran or the Company) and we noted the announcement on Monday regarding the sale of Vitrans U.S. LTL business (the U.S. Transaction), which we consider to be a positive outcome for the Company.
We were somewhat surprised with the timing and nature of this development, as we had been informed that the Company was taking another route, one that would have involved us directly. At this point, we thought that we should formalize our interest in order to ensure clear communication of TransForces position.
Assuming that the U.S. Transaction is structured to our satisfaction and has no adverse impact upon the remainder of the Company, TransForce is prepared to move very quickly and finalize a transaction to acquire all of the issued and outstanding shares of Vitran (the Transaction) for cash consideration of USD$4.50 per share. The details of the Transaction are set out in the attached letter of intent, which we would ask Vitran to sign.
To be clear, we are committed to gaining the support of the Board of Directors of Vitran and announcing the Transaction as soon as we possibly can. We have retained financial and legal advisors to assist us in this process.
TransForce has substantial financial resources to effect the Transaction and would not require a financing condition in the agreement. We consider that this all-cash proposal for Vitran represents an attractive value proposition for Vitrans shareholders and provides immediate liquidity in an uncertain economic environment. We believe that the proposal fully values Vitrans capabilities and long-term growth prospects and furthermore offers Vitrans employees additional opportunities for growth and advancement as part of a new, larger organization.
As we have discussed previously, and for the avoidance of any doubt, TransForce will not support any alternative transaction. The Transaction is predicated on exclusivity and is not one around which an auction process or market check can be built. The attached letter of intent provides for an exclusivity period of 30 days.
Should you have any questions concerning the Transaction or require any further information, please do not hesitate to contact the undersigned or our financial advisor Andrew Armstrong at National Bank Financial at (416) 869 8584.
As you know, TransForce is currently a Schedule 13D filer in the United States with regard to Vitran, and accordingly is required to amend its filing to disclose this letter and the proposed letter of intent promptly.
Yours very truly,
TRANSFORCE INC.
per: | /s/ Alain Bédard | |
Alain Bédard | ||
Chairman, President and Chief Executive Officer |
c.c. | William S. Deluce |
Interim President and Chief Executive Officer
Vitran Corporation Inc.
- 2 -
Exhibit C
BY E-MAIL
CONFIDENTIAL
September 25, 2013
Vitran Corporation Inc.
185 The West Mall
Suite 701
Toronto, Ontario
M9C 5L5
Attention: Richard D. McGraw, Chairman of the Board
Dear Sirs:
This letter of intent (LOI) sets out the basis on which TransForce Inc. (TransForce) proposes to acquire all of the outstanding common shares of Vitran Corporation Inc. (Vitran), other than those owned by TransForce and its affiliates.
1. Proposed Discussion Points. Annexed as Exhibit A is a term sheet that sets out the principal terms of the proposed acquisition.
2. Due Diligence Review. TransForces willingness to proceed with the potential acquisition is subject to, among other things, confirmatory due diligence regarding the disposal by Vitran of its United States LTL business.
3. Definitive Agreement. TransForce and Vitran shall concurrently proceed to negotiate a definitive support agreement or other similar agreement governing the transaction (the Definitive Agreement). The obligations of the parties to consummate the transaction contemplated hereby shall be subject in all respects to the negotiation, execution and delivery of the Definitive Agreement, and neither party shall have any liability to the other if either party terminates this LOI as permitted by section 10 below without executing the Definitive Agreement.
4. Timely Response. The terms proposed in Exhibit A are based on our mutual desire to proceed quickly. Accordingly, if we do not receive a signed copy of this letter from you by 7:00 a.m. (Eastern Time) on September 30, 2013, you should assume that these terms are no longer indicative of the terms on which TransForce would be interested in proceeding.
5. Other Negotiations. By countersigning this letter, Vitran agrees that during the period commencing upon execution of this letter by Vitran and for a period of 30 days thereafter (the Exclusivity Period), Vitran will deal exclusively with TransForce and its affiliates for the consummation of the transactions described herein and will not, and will not permit its officers, directors, employees, agents, representatives or affiliates to, directly or indirectly, make, solicit, initiate or encourage inquiries from or the submission of proposals or offers from, any other person, corporation, partnership, trust or other business organization whatsoever (including any of its
officers or employees) relating to any acquisition of any of the common shares of Vitran or any liquidation, dissolution, recapitalization, merger, amalgamation, or acquisition or purchase of all or a material portion of the assets of, or any equity interest in, Vitran or any of its subsidiaries or other similar transaction or business combination involving Vitran, or participate in any discussions or negotiations regarding, or furnish any other person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek to do any of the foregoing, or any other transaction that would be inconsistent with the acquisition by TransForce contemplated hereby, other than the sale by Vitran of its United States LTL business as announced by Vitran on September 23, 2013. Subject to the foregoing exception, Vitran shall immediately cease and cause to be terminated any such contacts or negotiations with third parties and shall immediately notify TransForce if Vitran learns of any inquiry or proposal during the Exclusivity Period concerning the possible acquisition of Vitran or its shares, business or assets. Such notice shall include the name of the inquirer or proposed acquirer and the terms and conditions of such inquiry or proposal.
6. Confidentiality. We refer to the Confidentiality Agreement dated July 5, 2013 between TransForce and Vitran (the Confidentiality Agreement). The Confidentiality Agreement remains in full force and effect. This LOI and the terms contained in the annexed term sheet, as well as transactions contemplated hereby and any discussions related thereto, are confidential information under the Confidentiality Agreement and as such are not to be disclosed by Vitran to any party other than Vitrans directors, officers and financial and legal advisors. In the event of any unauthorized disclosure, TransForces proposal for the acquisition of Vitran shall be void. However, as TransForce is currently a Schedule 13D filer in the United States with regard to Vitran, TransForce is required under United States securities laws to amend its filing to publicly disclose this LOI. Accordingly, Vitran acknowledges that TransForce will publicly disclose and file this LOI and the Confidentiality Agreement promptly with the United States Securities and Exchange Commission and may issue a press release regarding the LOI.
7. Expenses. The parties shall pay their own expenses and fees incurred in connection with the proposed acquisition, including all legal and accounting fees and expenses, whether or not the acquisition is consummated.
8. Obligations. Except for the parties obligations set out in the Confidentiality Agreement, and except for the obligations set out in sections 5 through 10 of this LOI, which are binding on the parties, neither this LOI nor the terms annexed hereto are binding upon either party, nor do they impose on the parties an enforceable duty or obligation to negotiate toward or conclude any binding agreement or commitment.
9. Governing Law. This LOI shall be governed by and construed in accordance with the laws of the Province of Ontario, without regard to its conflict of laws rules. For the purpose of resolving any conflicts related to or arising out of this LOI, the parties expressly agree that venue shall be in the Province of Ontario only.
10. Termination. TransForce may terminate this LOI and negotiation of the Definitive Agreement at any time until signing of such Definitive Agreement on written notice to Vitran, and after the termination of the Exclusivity Period, Vitran may terminate this LOI and negotiation of the Definitive Agreement at any time until signing of such Definitive Agreement on written notice to TransForce, provided that in each case, the termination of this LOI will not affect the liability of a party for a breach of any of the obligations set out in sections 5 through 10 of this LOI.
2
Please indicate the intent of Vitran to proceed with negotiation of the Definitive Agreement on the terms outlined in Exhibit A to this letter by executing where indicated below and returning a copy to me. On behalf of TransForce, we look forward to the success of the discussions contemplated by this letter. Should you have any questions concerning our proposal or require any further information please do not hesitate to contact the undersigned or our financial advisor Andrew Armstrong at National Bank Financial at (416) 869 8584.
Yours very truly,
TRANSFORCE INC.
per: | /s/ Alain Bédard | |
Alain Bédard | ||
Chairman, President and Chief Executive Officer |
AGREED AND ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN:
VITRAN CORPORATION INC.
per: |
| |
Name: | ||
Title: |
c.c. | William S. Deluce |
Interim President and Chief Executive Officer
Vitran Corporation Inc.
3
EXHIBIT A
Structure of Acquisition of Vitran by TransForce: |
TransForce will acquire all of the issued and outstanding common shares of Vitran, other than those owned by TransForce and its affiliates, at a price of USD$4.50 per share, payable in cash. The acquisition will be effected by way of: (i) take-over bid for the issued and outstanding common shares of Vitran by a wholly-owned subsidiary of TransForce; (ii) amalgamation (merger) of Vitran with a wholly-owned subsidiary of TransForce; (iii) plan of arrangement under the Business Corporations Act (Ontario); or (iv) another structure, the whole as determined by TransForce and Vitran and their respective advisors (the Transaction). | |
Price: |
After giving effect to the Transaction, TransForce would own 100% of Vitrans issued and outstanding common shares. The pricing terms described below are based on TransForces understanding that Vitran will have only 16,432,241 common shares of capital stock issued and outstanding at closing of the Transaction.
Except as set out above, all other shares of Vitran, including without limitation, common or preferred shares of Vitran (whether held in escrow or otherwise), stock options to purchase common shares of Vitran, and warrants, if any, exercisable into common shares of Vitran, will be cancelled by Vitran prior to closing of the Transaction.
The pricing terms described below are also based on the following:
Vitran shall have completed the sale of its United States LTL business as announced by Vitran on September 23, 2013, to the satisfaction of TransForce; and
In connection with such sale, Vitran shall have been released from any and all liabilities or guarantees with respect to its United States LTL business, to the satisfaction of TransForce.
Vitrans shareholders will, in exchange for each issued and outstanding common share identified above, receive USD$4.50 in cash.
The foregoing pricing is conditional on the parties mutually executing and delivering the Definitive Agreement no later than October 30, 2013. If the Definitive Agreement is not mutually executed and delivered by such date, the foregoing pricing will no longer apply. |
4
Financing: |
Transaction will be financed through existing cash and credit facilities. | |
Conditions to Signing a Definitive Agreement: |
TransForce will proceed promptly with confirmatory due diligence of the disposal by Vitran of the United States LTL business and the negotiation of the terms and conditions of a mutually-acceptable Definitive Agreement which will contain, in addition to the terms outlined herein, such terms, conditions, representations and covenants that are customary in a transaction of this type. Execution of the Definitive Agreement will be subject to the following conditions:
(i) Completion by TransForce to its satisfaction of its confirmatory due diligence review;
(ii) The negotiation and agreement of the terms and conditions of the Definitive Agreement in a form satisfactory to TransForce;
(iii) Approval of the transaction by the Boards of Directors of TransForce and Vitran;
(iv) The Board of Directors of Vitran shall have received from its financial advisor a written fairness opinion;
(v) Execution of the Definitive Agreement no later than October 30, 2013, unless otherwise agreed to by the parties in writing;
(vi) Approval of the transaction by regulatory authorities, as the case may be; and
(vii) TransForce shall have entered into lock-up agreements with all principal shareholders of Vitran, identified by Vitran and TransForce. | |
Directors Circular or Proxy Circular: |
Vitran shall, as promptly as practicable after execution of the Definitive Agreement, prepare a directors circular or management proxy circular, as the case may be, or other similar document for mailing to Vitrans shareholders as required by applicable law, which directors circular, management proxy circular or other document shall be to the satisfaction of TransForce, acting reasonably. | |
Lock-Up Agreements: |
Vitran shall cause all directors and officers of Vitran to execute lock-up agreements with TransForce pursuant to which such directors and officers agree to tender their shares in connection with, and to otherwise support, the Transaction and to forego any transfer of shares except pursuant to or as contemplated by the Definitive Agreement. The lock-up agreements will include customary representations and warranties satisfactory to TransForce. |
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Vitran shall use reasonable commercial efforts to obtain and deliver to TransForce similar lock-up agreements with principal shareholders of Vitran, identified by Vitran and TransForce. | ||
Deal Protection: |
The Definitive Agreement will contain customary deal protection provisions in favour of TransForce for a transaction of this kind, including without limitation, provisions dealing with non-solicitation (or no-shop) and right-to-match (entitling TransForce to increase its offer price to match a higher third-party offer before Vitran is free to terminate the Definitive Agreement and support the third-party offer) and termination payments or break fees payable by Vitran in certain circumstances in which the Definitive Agreement is terminated equal to 3.5% of total equity value. The Definitive Agreement would permit (under certain circumstances) Vitran to consider and support competing transactions that would be more favourable to its shareholders. Any lock-up agreements would also contain customary deal protection provisions for a transaction of this kind. Vitran will also agree to enforce all standstill agreements with third parties. | |
Conditions to Closing: |
The obligations of both parties to complete the transactions contemplated by the Definitive Agreement shall be conditional upon Vitran obtaining requisite shareholder approval, if applicable, receipt of any required governmental approvals or expiry of any applicable waiting period, including under any applicable competition, antitrust or other similar law, the absence of binding injunctions, the truth and accuracy of the representations and warranties of the other party (except for changes contemplated by the Definitive Agreement or changes that have not had, and are not reasonably likely to have, a material adverse effect), performance in all material respects of all covenants required to be performed at or prior to the closing, and other conditions to closing customary in transactions of this type. TransForces obligations to close will also be subject to the absence of any material adverse change in Vitrans consolidated business, operations or financial condition, the capitalization of Vitran at closing of the Transaction to be as described in the Price section above, which capitalization shall reflect among other things, the pre-closing cancellation of all stock options that are not in the money, and the satisfaction of the conditions regarding Vitrans United States LTL business as described in the Price section above. | |
Termination Provisions: |
The Definitive Agreement may be amended at any time by the consent of both parties and may be terminated under the following circumstances:
(i) written consent of both parties;
(ii) by either party if the Transaction is not consummated by December 31, 2013 (provided that the right to terminate |
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under this provision shall not be available to any party whose failure to fulfill any obligation under the Definitive Agreement shall have been the cause of or result in the failure of the Transaction to occur at or prior to such time); | ||
(iii) by either party if a court of competent jurisdiction or governmental entity shall have issued a non-appealable final order, decree or ruling having the effect of permanently restraining, enjoining or otherwise prohibiting the Transaction;
(iv) by either party if at a meeting of Vitrans shareholders, if applicable, the required approval of Vitrans shareholders is not obtained;
(v) by TransForce, if Vitrans Board of Directors has withdrawn or modified its recommendation of the Transaction, or failed to include its recommendation of the Transaction in Vitrans directors circular, management proxy circular or other similar document, or approved or recommended any Acquisition Proposal, or failed to reject a competing offer to acquire Vitran;
(vi) by either party if there has been a breach of any representation, warranty, covenant or agreement on the part of the other party, which breach would have caused any of the conditions to closing set out in the Definitive Agreement not to be satisfied, and which breach shall remain uncured for a period of 20 business days after written notice;
(vii) by TransForce, if the holders of more than 5% of Vitrans outstanding shares exercise the right to dissent under the Business Corporations Act (Ontario) in connection with the Transaction, if applicable;
(viii) by TransForce, if Vitran accepts, recommends, approves or enters into an agreement to implement a superior proposal; or
(ix) by TransForce, if there has been a breach of any representation, warranty, covenant or agreement on the part of any other party pursuant to a support agreement, and which breach shall remain uncured for a period of 20 business days after written notice. | ||
Fees and Expenses: |
Except as otherwise set forth in the Definitive Agreement, fees and expenses incurred in connection with the Definitive Agreement and transactions contemplated thereby shall be paid by the party incurring such fees and expenses. | |
Documentation: |
The Transaction will be governed by the Definitive Agreement and related ancillary documents to be drafted by counsel for TransForce. |
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Governing Law: |
Province of Ontario. | |
Currency: |
Unless otherwise indicated, all dollar amounts set out above are in US dollars. |
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