North
American Galvanizing & Coatings, Inc.
5314
S. Yale Avenue, Ste. 1000
Tulsa,
Oklahoma 74135 USA
Telephone:
(918) 494-0964
Dear
Stockholders,
The Board
of Directors of North American Galvanizing & Coatings, Inc. (the “Company”)
is soliciting your consent to amend the Company’s Restated Certificate of
Incorporation, as amended, to increase the number of authorized shares of common
stock from 18,000,000 shares to 25,000,000 shares (the “Proposed
Amendment”). We are soliciting your approval by written consent in
lieu of a meeting of stockholders in order to gain approval for the Proposed
Amendment as quickly and efficiently as possible. We ask that you
return your written consent as soon as possible.
The Board
of Directors of the Company believes that it is in the best interest of the
Company and its stockholders to increase the number of authorized shares of the
Company’s common stock (the “Common Stock”). As of February 27, 2009,
the Company only had 454,271 authorized shares available for possible future
uses by the Company. The purpose of the increase is to have
additional authorized shares of Common Stock available for all legal purposes
approved by the Board of Directors of the Company, including, but not limited
to: (a) possible future financings, including the sale of Common Stock,
convertible debt or warrants and (b) possible acquisitions of assets, or
interests in, additional geographically strategic hot-dip galvanizing plants or
related businesses.
Your
consent is important, since approval of the Proposed Amendment requires the
execution of written consents of the holders of a majority of the outstanding
shares of Common Stock. As a result, if you do not return a properly
completed, signed and dated consent, you will effectively be voting against the
Proposed Amendment. The Board of Directors has fixed the close of
business on February 27, 2009 as the record date for
determining the stockholders entitled to notice of this solicitation and to give
their consent with respect to the Proposed Amendment. Therefore, only
holders who owned shares of the Common Stock as of the close of business on
February 27, 2009 are eligible to provide
their written consent.
If
approved by the stockholders of the Company, the Proposed Amendment will become
effective upon the filing of a Certificate of Amendment of the Restated
Certificate of Incorporation, as amended, with the Secretary of State of
Delaware, which is expected to occur shortly after stockholder
approval.
The
Proposed Amendment and other related matters are more fully described in the
accompanying Consent Solicitation Statement and the exhibit thereto, which form
a part of this notice. We encourage you to read these materials
carefully. In addition, you may obtain information about the Company
from documents that we have filed with the Securities and Exchange
Commission.
THE BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU CONSENT TO THE PROPOSED
AMENDMENT.
PLEASE
COMPLETE, SIGN, DATE AND RETURN THE ACCOMPANYING WRITTEN CONSENT BALLOT IN THE
ENCLOSED PREPAID AND ADDRESSED ENVELOPE AS SOON AS POSSIBLE.
By Order
of the Board of Directors,
|
Joseph
J. Morrow
Chairman
of the Board of Directors
|
Ronald J.
Evans
President and Chief Executive
Officer
|
March 13,
2009
North
American Galvanizing & Coatings, Inc.
5314
S. Yale Avenue, Ste. 1000
Tulsa,
Oklahoma 74135 USA
Telephone:
(918) 494-0964
CONSENT SOLICITATION
STATEMENT
GENERAL
This
Consent Solicitation Statement and the enclosed written consent ballot are being
mailed in connection with the solicitation of written consents by the Board of
Directors of North American Galvanizing & Coatings, Inc., a Delaware
corporation (the “Company”). The Company’s Board of Directors is
soliciting these consents in lieu of a meeting of the stockholders in order to
obtain the Company’s stockholders’ approval of the proposed amendment to the
Company’s Restated Certificate of Incorporation, as amended (the “Proposed
Amendment”), to increase the number of authorized shares of the Company’s common
stock (the “Common Stock”) from 18,000,000 shares to 25,000,000
shares. These materials are first being mailed to stockholders of
record beginning on approximately March 13, 2009. Consents are to be
submitted to the Company using the enclosed prepaid and addressed envelope as
soon as possible. Any questions regarding the Proposed Amendment or
the written consent may be directed to the Company’s proxy solicitor, Morrow
& Co., LLC, by calling 1-800-662-5200 or sending written correspondence to
Morrow & Co., LLC, 470 West Avenue, 3rd Floor,
Stamford, Connecticut 06902.
VOTING
RIGHTS AND SOLICITATION
The
record date for determining those stockholders who are entitled to give written
consents has been fixed as February 27, 2009. Each share of Common
Stock entitles the holder thereof to one vote upon the Proposed
Amendment. At the close of business on the record date, the Company
had outstanding 16,239,651 shares of Common Stock
with an aggregate of 16,239,651 stockholder
votes. An additional 1,037,916 shares were reserved for
issuance upon exercise of outstanding options and warrants granted or issued by
the Company and 268,162 shares were treasury stock available for stock option
exercises, director stock unit awards and non-vested stock awards.
The
Proposed Amendment will be approved if the Company holds unrevoked written
consents of stockholders approving the Proposed Amendment representing a
majority of the outstanding shares of the Common Stock at the record date at any
time on or before the 60th day
following the earliest dated consent delivered to the Company. The
withholding of consent, abstention or the failure to deliver your consent will
all have the effect of a vote against the approval of the Proposed
Amendment. If your shares are held in an account at a brokerage firm
or bank or by another nominee and you wish to consent to the Proposed Amendment,
you should instruct your broker, bank or nominee to execute the consent on your
behalf or to deliver the consent to you so that you may execute and return
it. Otherwise, your consent may not be given effect, which would have
the same result as a vote against the Proposed Amendment.
Any
stockholder executing a written consent ballot has the power to revoke it at any
time before the date on which the Proposed Amendment is approved and the
Certificate of Amendment of the Restated Certificate of Incorporation, as
amended, is filed with the Secretary of State of Delaware by delivering written
notice of such revocation to Morrow & Co., LLC at 470 West Avenue, 3rd Floor,
Stamford, Connecticut 06902.
If
approved by the stockholders of the Company, the Proposed Amendment will become
effective upon the filing of a Certificate of Amendment of the Restated
Certificate of Incorporation, as amended, with the Secretary of State of
Delaware, which is expected to occur shortly after stockholder
approval.
The cost
of soliciting written consents will be paid by the Company and may include
reimbursement paid to brokerage firms and others for their expense in forwarding
solicitation material. Solicitation will be made primarily through
the use of the mail; however, regular employees of the Company, or a proxy
solicitor hired on behalf of the Company, may solicit written consents
personally by telephone or telegram. None of our employees will
receive any additional compensation for any such solicitation.
THIS
IS A REQUEST FOR STOCKHOLDER APPROVAL BY WRITTEN CONSENT. YOU ARE
REQUESTED TO INDICATE WHETHER YOU APPROVE OF THE PROPOSED CORPORATE ACTION ON
THE BALLOT ENCLOSED AND TO RETURN THAT BALLOT TO US USING THE ENCLOSED PREPAID
AND ADDRESSED ENVELOPE AS SOON AS POSSIBLE.
A
WRITTEN CONSENT BALLOT, WHICH HAS BEEN SIGNED, DATED AND DELIVERED TO THE
COMPANY WITHOUT INDICATING CONSENT, WITHOLDING OF CONSENT, OR ABSTENTION WILL
CONSTITUTE A CONSENT TO THE PROPOSED AMENDMENT TO THE COMPANY’S RESTATED
CERTIFICATE OF INCORPORATION, AS AMENDED.
The
Board of Directors unanimously recommends that you consent for approval of the
Proposed Amendment.
Morrow
& Co., LLC
Proxy
Solicitor for the Consent Solicitation of the Company
Phone:
1-800-662-5200
Morrow
& Co., LLC
470
West Avenue, 3rd
Floor
Stamford, Connecticut
06902
SECURITY
OWNERSHIP OF
CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth certain information as of February 27,
2009, regarding the beneficial ownership of our Common Stock by (a) all persons
who are beneficial owners of five percent or more of our Common Stock, (b) each
of our directors, (c) our Chief Executive Officer and our Chief Financial
Officer, which are our only executive officers, and (d) all of our directors and
executive officers as a group. Unless otherwise noted, the persons
named below have sole voting and investment power with respect to such
shares. Shares not outstanding but deemed beneficially owned by
virtue of the right of a person or member of a group to acquire them within 60
days of February 27, 2009 are treated as
outstanding only for determination of the number and percent owned by such group
or person. In addition, unless otherwise indicated in the table
below, the address of each named person is c/o North American Galvanizing &
Coatings, Inc., 5314 S. Yale Avenue, Ste. 1000, Tulsa, Oklahoma
74135.
|
Name
and Address of
Beneficial
Owner
|
Shares
owned
as of February 27, 2009
(1)
|
Options
exercisable within 60 days after February 27, 2009
|
Number
of Shares Beneficially Owned
|
%
of
Common
Stock (2)
|
|
Linwood
J. Bundy
|
281,280
|
|
281,280
|
1.7%
|
|
Ronald
J. Evans
|
281,128
|
216,000
|
497,128
|
3.0%
|
|
Janice
K. Henry
|
—
|
|
|
0.0%
|
|
Beth
B. Hood
|
26,627
|
27,500
|
54,127
|
0.3%
|
|
Gilbert
L. Klemann, II
|
174,618
|
79,166
|
253,784
|
1.5%
|
|
Patrick
J. Lynch
|
144,812
|
76,250
|
221,062
|
1.3%
|
|
Joseph
J. Morrow
|
2,106,825
|
|
2,106,825
|
12.6%
|
|
John
H. Sununu
|
151,729
|
20,000
|
171,729
|
1.0%
|
|
All
directors and executive officers as a group (8 persons)
|
3,167,019
|
418,916
|
3,585,935
|
21.5%
|
|
Non-management
5%
Stockholders
|
|
|
|
|
|
James
Investment Research, Inc.(3)
|
691,919
|
|
691,919
|
4.2%
|
(1)
Excludes stock units allocated to the account of the named person under the
Director Stock Unit Program. These allocations are as
follows: Mr. Bundy, 102,937; Mr. Evans, 102,937; Ms.
Henry, 12,902; Mr. Klemann, 102,937; Mr. Lynch, 102,937; Mr. Morrow, 102,937;
Gov. Sununu, 102,937. Excludes non-vested restricted stock awards
granted to the named person under the 2004 Incentive Stock
Plan. These allocations are as follows: Mr. Bundy, 39,999;
Mr. Evans, 133,334; Ms. Henry, 26,666; Ms. Hood, 40,000; Mr. Klemann, 39,999;
Mr. Lynch, 39,999; Mr. Morrow, 39,999; Gov. Sununu, 39,999. No shares
of the non-vested restricted stock will vest within 60 days after February 27,
2009.
(2) Based
on 16,239,651 shares of our Common Stock outstanding as of February 27, 2009.
This assumes that all options exercisable within 60 days after February 27, 2009
owned by the named individual are exercised. This also assumes that
all restricted stock awards that vest within 60 days after February 27, 2009
owned by the named individual have vested. The total number of shares
outstanding also assumes that none of the options owned by other named
individuals are exercised and that none of the restricted stock owned by other
named individuals have vested.
(3) 1349
Fairground Road, Xenia, Ohio 45385, all as of December 31, 2008.
APPROVAL
OF THE INCREASE IN
THE
NUMBER OF AUTHORIZED COMMON SHARES
General
The Board
of Directors is requesting stockholder approval of an amendment of the Company’s
Restated Certificate of Incorporation, as amended (the “Proposed Amendment”) to
increase the number of shares of Common Stock authorized for issuance from
18,000,000 to 25,000,000. A copy of the resolution approving the
Proposed Amendment is annexed to this Consent Solicitation Statement as Exhibit
A. If approved by the stockholders of the Company, the Proposed
Amendment will become effective upon the filing of a Certificate of Amendment of
the Restated Certificate of Incorporation, as amended, with the Secretary of
State of Delaware, which is expected to occur shortly after stockholder
approval. The Proposed Amendment was approved by all of the directors
of the Company.
Background
and Reason for Amendment
The
purpose of the Amendment is to increase the total number of authorized shares of Common Stock from
18,000,000 shares to 25,000,000 shares. As of February 27, 2009, the Company had
18,000,000 authorized shares of Common Stock, of which 16,239,651 shares were
outstanding, 1,037,916 shares were reserved for
issuance upon exercise of outstanding options and warrants granted or issued by
the Company and 268,162 shares were treasury stock available for stock option
exercises, director stock unit awards and non-vested stock awards, leaving the
Company with only 454,271 authorized shares
available for other possible uses. Possible business and financial uses for the
additional shares of Common Stock include, without limitation: (a) possible
future financings, including the sale of Common Stock, convertible debt or
warrants and (b) possible acquisitions of assets, or interests in, additional
geographically strategic hot-dip galvanizing plants or related
businesses. The additional authorized shares would enable the Company
to act quickly in response to opportunities that may arise for these types of
transactions, in most cases without the necessity of obtaining further
stockholder approval and holding a special stockholders’ meeting before such
issuance(s) could proceed, except as provided by applicable law, requirements of
regulatory agencies or by NASDAQ rules. The Company may ask
shareholders to approve future equity compensation plans, and the Proposed
Amendment to increase the authorized Common Stock would be necessary for such
future equity compensation plans. The Company has not entered into any binding
or non-binding plans, arrangements or understandings regarding the additional
shares that would be authorized pursuant to this proposal. However,
the Company reviews and evaluates potential capital raising activities,
transactions and other corporate actions on an on-going basis to determine if
such actions would be in the best interests of the Company and its
stockholders.
Effect
of Amendment On Existing Security Holders
The
Proposed Amendment would increase the number of the Company’s authorized shares
of Common Stock to 25,000,000, thus permitting the Company to issue an
additional 7,000,000 shares of Common Stock not currently
authorized. Each additional share of Common Stock authorized by the
Proposed Amendment would have the same rights and privileges as each share of
Common Stock currently authorized or outstanding. The holders of the
Company’s existing outstanding shares of Common Stock will have no preemptive or
similar right to purchase any additional shares authorized by the Proposed
Amendment. The issuance of a large number of additional shares of
Common Stock (including any comprising a part of the additional shares
authorized by the Proposed Amendment) would substantially reduce the
proportionate interest that each presently outstanding share of Common Stock has
with respect to dividends, voting and the distribution of assets upon
liquidation. Notwithstanding the preceding, the increase in the
authorized shares of our Common Stock will not have any immediate dilutive
effect on the rights of existing stockholders.
The Board
of Directors believes that it is in the best interests of the Company and its
stockholders to adopt the Proposed Amendment so as to have issuable additional
authorized but unissued shares of Common Stock in an amount adequate to provide
for the future needs of the Company.
The Board
of Directors believes that an additional 7,000,000 authorized shares of Common
Stock would be adequate to meet the Company’s needs for the foreseeable
future. The additional shares authorized by the Proposed
Amendment will be available for issuance from time to time by the Company at the
discretion of the Board of Directors, normally without further stockholder
action or notification (except as may be required for a particular transaction
by applicable law, requirements of regulatory agencies or by NASDAQ
rules). The Board of Directors does not anticipate seeking
authorization from the Company’s stockholders for the issuance of any of the
shares of Common Stock authorized by the Proposed Amendment. However,
the Company may ask shareholders to approve future equity compensation plans,
and the Proposed Amendment would be necessary for such future equity
compensation plans. The availability of 7,000,000 additional shares
for issuance in the future will give the Company greater flexibility and permit
such shares to be issued without the expense and delay of a special
stockholders’ meeting. However, there can be no assurance that
stockholders would approve of all or even any of the stock issuances undertaken
with the additional share authorized by the Proposed Amendment.
The
additional shares authorized by the Proposed Amendment are not intended as an
anti-takeover device, and they are not expected to function unintentionally as
one. However, the Board of Directors could issue shares of Common
Stock in a manner that makes more difficult or discourages an attempt to obtain
control of the Company by means of a merger, tender offer, proxy contest or
other means, although the Board of Directors has no present intention of doing
so. When, in the judgment of the Board of Directors, the issuance of
shares under such circumstances would be in the best interest of the Company and
its stockholders, such shares could be privately placed with purchasers
favorable to the Board of Directors in opposing such action. The
issuance of new shares could thus be used to dilute the stock ownership of a
person or entity seeking to obtain control of the Company if the Board of
Directors considers the action of such entity or person not to be in the best
interest of the Company and its stockholders. The existence of the
additional authorized shares could also have the effect of discouraging
unsolicited takeover attempts. The Company is not aware of any
present efforts by any person to obtain control of the Company.
The
Company could also use the additional shares of Common Stock for potential
strategic transactions including, among other things, acquisitions, spin-offs,
strategic partnerships, joint ventures, restructurings, divestitures, business
combinations and investments, although the Company has no present plans to do
so. The Company cannot provide assurances that any such transactions will be
consummated on favorable terms or at all, that they will enhance stockholder
value or that they will not adversely affect the Company’s business or the
trading price of the Common Stock. Any such transactions may require the Company
to incur non-recurring or other charges and may pose significant integration
challenges and/or management and business disruptions, any of which could
materially and adversely affect the Company’s business and financial
results.
Dissenters’
Rights
Under
Delaware corporation law, the Company’s Restated Certificate of Incorporation,
as amended, and the Company’s Amended and Restated Bylaws, holders of Common
Stock will not be entitled to dissenters’ rights with respect to the Proposed
Amendment.
Board
Recommendation and Required Approval
The Board
of Directors believes that the Proposed Amendment is in the best interests of
the Company and its stockholders and recommends that the stockholders approve
the Proposed Amendment. The affirmative vote of the holders of a
majority of the outstanding shares of Common Stock is required for approval of
the Proposed Amendment.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A CONSENT “FOR” THE APPROVAL OF THE
PROPOSED AMENDMENT TO THE COMPANY’S RESTATED CERTIFICATE OF INCORPORATION, AS
AMENDED, TO INCREASE COMPANY’S AUTHORIZED SHARES OF COMMON STOCK FROM 18,000,000
TO 25,000,000 SHARES OF COMMON STOCK.
SUBMISSION OF STOCKHOLDER
PROPOSALS FOR NEXT
ANNUAL MEETING
If any
stockholder wishes to submit a proposal, including nominations for the Board of
Directors, for inclusion in the proxy statement for our annual meeting in 2010,
such proposal must be received at our principal executive office by January 4,
2010. Such proposal should be directed to North American Galvanizing
& Coatings, Inc., Attention: Corporate Secretary, 5314 South Yale Avenue,
Suite 1000, Tulsa, Oklahoma 74135.
For
business to be properly brought before an annual meeting (including nominations
for the Board of Directors), but not included in the proxy statement, a
stockholder must follow certain procedures set forth in the Company’s Amended
and Restated Bylaws. Generally, a stockholder must give timely notice
to our Corporate Secretary. To be timely, a stockholder’s notice must be
received at our principal executive offices not less than 90 days prior to the
meeting. The Bylaws specify the information which must accompany such
stockholder notice. Details of the relevant section of the Company’s
Amended and Restated Bylaws may be obtained by any stockholder from our
Corporate Secretary.
By Order
of the Board of Directors,
|
Joseph
J. Morrow
Chairman
of the Board of Directors
|
Ronald J.
Evans
President and Chief Executive
Officer
|
March 13,
2009
Please
direct any questions regarding the Proposed Amendment or the written consent to
the Company’s proxy solicitor, Morrow & Co., LLC, by
calling
1-800-662-5200
or
sending written correspondence to
Morrow
& Co., LLC
470
West Avenue, 3rd
Floor
Stamford,
Connecticut 06902
EXHIBIT
A
Amendment
Resolution
BE IT RESOLVED, that Article
Fourth of the Restated Certificate of Incorporation, as amended, of the Company
be and hereby is amended to read in its entirety as follows:
FOURTH:
the aggregate number of shares which the Corporation shall have authority to
issue is Twenty-Five Million (25,000,000)
shares of Common Stock of a par value of Ten Cents ($0.10) per
share.”
North
American Galvanizing & Coatings, Inc.
5314
S. Yale Avenue, Ste. 1000
Tulsa,
Oklahoma 74135 USA
WRITTEN
CONSENT SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The
undersigned hereby acknowledges receipt of the Consent Solicitation Statement
(the “Statement”) in connection with the proposed increase in the authorized
number of shares of Common Stock of North American Galvanizing & Coatings,
Inc. (the “Company”) and consents, withholds consent or abstains from
consenting, with respect to all of the capital stock of the Company held by the
undersigned, to the approval of the proposal set forth herein (as such proposal
is defined in the Statement) without a meeting of the stockholders of the
Company.
THE
BOARD OF DIRECTORS RECOMMENDS THAT YOU CONSENT “FOR” THE PROPOSAL.
|
|
Proposal
to amend the Company’s Restated Certificate of Incorporation, as amended,
to increase the authorized shares of Common Stock to
25,000,000.
|
INSTRUCTIONS.
TO
CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO THE APPROVAL OF THE
PROPOSED AMENDMENT, CHECK THE APPROPRIATE BOX BELOW AND SIGN, DATE AND RETURN
THIS CONSENT BALLOT. IF NO BOX IS MARKED BELOW WITH RESPECT TO THE
PROPOSAL, AND THIS CONSENT BALLOT IS SIGNED AND DATED, THE UNDERSIGNED WILL BE
DEEMED TO HAVE CONSENTED TO THE PROPOSED AMENDMENT.
|
|
|
CONSENTS/FOR
|
| |
|
|
|
|
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WITHHOLDS
CONSENT/AGAINST
|
| |
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ABSTAINS
|
Please
sign exactly as name appears below. When shares are held by joint
tenants, both should sign. When signing as executor, administrator,
trustee or guardian, please give full title as such. If a
corporation, please sign in full corporate name by President or other authorized
officer. If a partnership, please sign in partnership name by
authorized person.
|
DATE
_________________________, 2009
_____________________________________
Signature
_____________________________________
Signature
if held jointly |
---------------------------------------------
Stockholder Label
showing
name, address and
number
of shares held by
the
stockholder
---------------------------------------------
|
PLEASE
MARK, SIGN, DATE
AND
RETURN THE CONSENT
BALLOT
PROMPTLY
USING THE ENCLOSED
ENVELOPE