UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Securities Exchange Act of 1934
Filed by the Registrant ☒
Filed by a party other than the Registrant ☐
Check the appropriate box:
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Preliminary Proxy Statement
☐
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Under Rule 14a-12
![[MISSING IMAGE: lg_radius-4c.jpg]](https://cdn.kscope.io/bcd352119141327660d15c47f5bb6313-lg_radius-4c.jpg)
Radius Global Infrastructure, Inc.
(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
☐
No fee required
☒
Fee paid previously with preliminary materials
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11
LETTER FROM OUR CO-CHAIRMAN AND CHIEF EXECUTIVE OFFICER
May 12, 2023
Dear Stockholders:
You are cordially invited to attend a special meeting (including any adjournments or postponements thereof, the “Special Meeting”) of stockholders of Radius Global Infrastructure, Inc., a Delaware corporation (“Radius”, the “Company”, “we”, “us” and “our”) to be held virtually via live webcast on June 15, 2023 beginning at 8:30 a.m. Eastern Time (unless the Special Meeting is adjourned or postponed). Radius stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM and using the 16-digit control number included in the proxy materials. For purposes of attendance at the Special Meeting, all references in the enclosed proxy statement to “present” shall mean virtually present at the Special Meeting.
As previously announced, on March 1, 2023, the Company entered into an Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), with APW OpCo LLC, a Delaware limited liability company (“OpCo”), Chord Parent, Inc., a Delaware corporation (“Parent”), Chord Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub I”), and Chord Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Merger Sub I (“Merger Sub II”). Upon the terms and subject to the conditions therein, (a) Merger Sub II will be merged with and into OpCo (the “OpCo Merger”), with OpCo surviving the OpCo Merger as a subsidiary of Parent and the Company (the “Surviving LLC”) and (b) Merger Sub I will be merged with and into the Company (the “Company Merger” and, together with the OpCo Merger, the “Mergers”), with the Company surviving the Company Merger as a subsidiary of Parent.
At the Special Meeting, you will be asked to consider and vote on (a) a proposal to adopt the Merger Agreement (the “Merger Agreement Proposal”), (b) a proposal to approve, on an advisory (nonbinding) basis, the compensation that will or may be paid or become payable to Radius’ named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated thereby (the “Advisory Compensation Proposal”) and (c) a proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting (the “Adjournment Proposal”).
The Merger Agreement provides, among other things, that on the terms and subject to the conditions set forth therein, at the effective time of the Company Merger (the “Company Merger Effective Time”):
•
each share of Class A common stock, par value $0.0001 per share, of the Company (the “Class A Common Stock”), issued and outstanding immediately prior to the Company Merger Effective Time, except for (a) shares of the Company Capital Stock (as defined below), for which the holders have demanded their rights to be paid the fair value of such Company Capital Stock in accordance with Section 262 of the General Corporation Law of the State of Delaware (the “Appraisal Shares”), (b) shares of Company Common Stock (as defined below) that (i) are immediately prior to the Company Merger Effective Time owned by Parent or Merger Sub I or any direct or indirect wholly owned subsidiary of the Company, Parent or Merger Sub I or (ii) are immediately prior to the Company Merger Effective Time owned by the Company as treasury stock (collectively, “Owned Company Common Stock”) and (c) shares of Company Restricted Stock (as defined below), will be converted into the right to receive $15.00 per share in cash (the “Merger Consideration”), without interest and subject to any required withholding of tax;
•
each share of Class B common stock, par value $0.0001 per share, of the Company (the “Class B Common Stock” and, together with the Class A Common Stock, the “Company Common Stock”), issued and outstanding immediately prior to the Company Merger Effective Time, except for Owned Company Common Stock, will be canceled for no consideration;
•
each share of preferred stock, par value $0.0001 per share, of the Company designated as “Series A Founder Preferred Stock” (the “Series A Founder Preferred Stock”), issued and outstanding immediately prior to the Company Merger Effective Time will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
•
each share of preferred stock, par value $0.0001 per share, of the Company designated as “Series B Founder Preferred Stock” (the “Series B Founder Preferred Stock” and, together with the Series A Founder Preferred Stock, the “Company Preferred Stock”; the Company Preferred Stock together with the Company Common Stock, the “Company Capital Stock”), issued and outstanding immediately prior to the Company Merger Effective Time will be canceled for no consideration;
•
each option to purchase shares of Class A Common Stock (each, a “Company Stock Option”) outstanding as of the date of the Merger Agreement, whether vested or unvested, or outstanding as of the Company Merger Effective Time and vested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration, less the applicable exercise price, and the number of shares of Class A Common Stock subject to such Company Stock Option; provided that any such Company Stock Option with an exercise price that is equal to or greater than the Merger Consideration will be canceled for no consideration;
•
each share of restricted stock subject to forfeiture conditions (“Company Restricted Stock”) held by an employee of the Company or any of its subsidiaries that is outstanding and unvested as of immediately prior to the Company Merger Effective Time will be canceled and converted into the right to receive a cash payment, without interest, equal to the Merger Consideration, except that such amount will vest and become payable subject to and in accordance with the vesting schedule applicable to the corresponding share of Company Restricted Stock immediately prior to the Company Merger Effective Time and otherwise subject to the same terms and conditions as such corresponding share of Company Restricted Stock (each, an “RS Payment Right”); provided that if the employment of a holder of an RS Payment Right is terminated following the Company Merger Effective Time but prior to the applicable vesting date by Parent without Cause (as defined in the Company 2020 Equity Incentive Plan, as may be amended from time to time, the “Company Stock Plan”) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such RS Payment Right will be accelerated to the first payroll date after the date of such termination;
•
each share of Company Restricted Stock held by a non-employee director of the Company Board that is outstanding as of immediately prior to the Company Merger Effective Time, whether vested or unvested, will (to the extent unvested) vest and be canceled in exchange for a lump-sum cash payment, without interest, equal to the Merger Consideration; and
•
each Company Stock Option granted to employees of the Company or any of its subsidiaries following the date of the Merger Agreement will generally be canceled as of the Company Merger Effective Time and converted into a right to receive a cash payment, without interest, based on the Merger Consideration (less the applicable exercise price), except that such amount will vest and become payable subject to and in accordance with the vesting schedule applicable to the corresponding Company Stock Option immediately prior to the Company Merger Effective Time, and otherwise subject to the same terms and conditions as such corresponding Company Stock Option (each, a “Post-Signing Award Payment Right”); provided that, if the employment of a holder of such Post-Signing Award Payment Right is terminated following the Company Merger Effective Time but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such Post-Signing Award Payment Right will be accelerated to the first payroll date after the date of such termination.
The Merger Agreement further provides, among other things, that on the terms and subject to the conditions set forth therein, at the effective time of the OpCo Merger (the “OpCo Merger Effective Time”):
•
each unit of limited liability company interests of OpCo designated as “Class A Common” units (“OpCo Class A Common Units”) under the Second Amended and Restated Limited Liability Company Agreement of OpCo, dated as of July 31, 2020 (the “OpCo LLC Agreement”), issued and outstanding immediately prior to the OpCo Merger Effective Time will be converted into one unit of limited liability company interests in the Surviving LLC;
•
each unit of limited liability company interests of OpCo designated as “Class B Common” units (“OpCo Class B Common Units”) under the OpCo LLC Agreement issued and outstanding immediately prior to the OpCo Merger Effective Time, except for Rollover Equity (as defined in the section of this proxy statement titled “Summary — Rollover Agreement”) and any OpCo Class B Common Units held by the Company, will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
•
each unit of OpCo designated as a “Series A Rollover Profits Unit” pursuant to the OpCo LLC Agreement outstanding as of immediately prior to the OpCo Merger Effective Time will be canceled and cease to exist and no consideration will be delivered in exchange therefor;
•
each unit of OpCo designated as a “Series B Rollover Profits Unit” pursuant to the OpCo LLC Agreement outstanding as of immediately prior to the OpCo Merger Effective Time will be deemed fully vested (to the extent unvested) and be treated in the same manner as other OpCo Class B Common Units;
•
the single unit of limited liability company interests of OpCo designated as the “Carry Unit” under the OpCo LLC Agreement will be canceled for no consideration;
•
each unit of OpCo designated as “Series A LTIP”, “Series B LTIP” and “Series C LTIP” (collectively, the “LTIP Units”) outstanding as of the date of the Merger Agreement, except for Rollover Equity, will vest with all applicable performance conditions deemed satisfied and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration and the number of shares of Class A Common Stock into which such LTIP Unit is convertible immediately prior to the OpCo Merger Effective Time; and
•
each LTIP Unit granted to employees of the Company or any of its subsidiaries following the date of the Merger Agreement will generally be canceled as of the OpCo Merger Effective Time and converted into a right to receive a Post-Signing Award Payment Right (with all performance conditions deemed satisfied); provided that, if the employment of a holder of such Post-Signing Award Payment Right is terminated following the OpCo Merger Effective Time but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such Post-Signing Award Payment Right will be accelerated to the first payroll date after the date of such termination.
After careful consideration of the factors more fully described in the enclosed proxy statement, the Board of Directors of the Company (the “Company Board”), acting upon the unanimous recommendation of a committee of the Company Board consisting only of independent and disinterested directors of the Company Board, has unanimously: (a) determined that the transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company’s stockholders adopt the Merger Agreement. The Company Board unanimously recommends that you vote: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal.
The enclosed proxy statement provides detailed information about the Special Meeting, the Merger Agreement and the Mergers. A copy of the Merger Agreement is attached as Annex A to the proxy statement. The proxy statement also describes the actions and determinations of the Company Board in connection with its evaluation of the Merger Agreement and the Mergers. You should carefully read and consider the
entire enclosed proxy statement and its annexes, including the Merger Agreement, as they contain important information about, among other things, the Mergers and how they affect you.
Whether or not you plan to attend the virtual Special Meeting, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of the proxy statement titled “The Special Meeting — Voting at the Special Meeting”). If you attend the Special Meeting and vote thereat, your vote will revoke any proxy that you have previously submitted.
If you hold your shares in “street name”, you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the Merger Agreement Proposal, without your instructions.
Your vote is important, regardless of the number of shares that you own. We cannot complete the Mergers unless the Merger Agreement Proposal is approved by the affirmative vote of the holders of at least a majority of the outstanding shares of Company Capital Stock entitled to vote thereon at the Special Meeting, voting together as a single class. If you have any questions or need assistance voting your shares, please contact our proxy solicitor:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
On behalf of the Company Board, I thank you for your support and appreciate your consideration of these matters.
Sincerely,
![[MISSING IMAGE: sg_williamhberkman-bw.jpg]](https://cdn.kscope.io/bcd352119141327660d15c47f5bb6313-sg_williamhberkman-bw.jpg)
William H. Berkman
Co-Chairman of the Board of Directors and Chief Executive Officer
Radius Global Infrastructure, Inc.
Radius Global Infrastructure, Inc.
Neither the Securities and Exchange Commission nor any state securities regulatory agency has approved or disapproved the Mergers, passed upon the merits or fairness of the Mergers or passed upon the adequacy or accuracy of the disclosure in this document. Any representation to the contrary is a criminal offense.
The accompanying proxy statement is dated May 12, 2023, and, together with the enclosed form of proxy card, is first being mailed to Radius stockholders on or about May 12, 2023.
RADIUS GLOBAL INFRASTRUCTURE, INC.
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 15, 2023
TO BE HELD ON JUNE 15, 2023
Notice is hereby given that a special meeting (including any adjournments or postponements thereof, the “Special Meeting”) of stockholders of Radius Global Infrastructure, Inc., a Delaware corporation (“Radius”, the “Company”, “we”, “us” or “our”), will be held virtually via live webcast on June 15, 2023 beginning at 8:30 a.m. Eastern Time (unless the Special Meeting is adjourned or postponed). Radius stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM and using the 16-digit control number included in the proxy materials. For purposes of attendance at the Special Meeting, all references in the enclosed proxy statement to “present” shall mean virtually present at the Special Meeting.
As previously announced, on March 1, 2023, the Company entered into an Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), with APW OpCo LLC, a Delaware limited liability company (“OpCo”), Chord Parent, Inc., a Delaware corporation (“Parent”), Chord Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub I”), and Chord Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Merger Sub I (“Merger Sub II”). Upon the terms and subject to the conditions therein, (a) Merger Sub II will be merged with and into OpCo (the “OpCo Merger”), with OpCo surviving the OpCo Merger as a subsidiary of Parent and the Company and (b) Merger Sub I will be merged with and into the Company, (the “Company Merger” and, together with the OpCo Merger, the “Mergers”), with the Company surviving the Company Merger as a subsidiary of Parent.
The Special Meeting is being held for the following purposes:
1.
to consider and vote on the proposal to adopt the Merger Agreement (the “Merger Agreement Proposal”);
2.
to consider and vote on the proposal to approve, on an advisory (nonbinding) basis, the compensation that will or may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated thereby (the “Advisory Compensation Proposal”); and
3.
to consider and vote on any proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting (the “Adjournment Proposal”).
Only Radius stockholders of record as of the close of business on May 9, 2023, are entitled to notice of the Special Meeting and to vote at the Special Meeting or any adjournment, postponement or other delay thereof.
The Merger Agreement Proposal must be approved by the holders of at least a majority of the outstanding shares of the Company’s (a) Class A common stock, (b) Class B common stock, (c) preferred stock designated as “Series A Founder Preferred Stock” and (d) preferred stock designated as “Series B Founder Preferred Stock” entitled to vote at the Special Meeting, voting together as a single class, or any adjournment or postponement thereof.
The approval of the Advisory Compensation Proposal and the Adjournment Proposal each requires the affirmative vote of a majority of the votes cast on the proposal.
Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of Company Capital Stock or vote at the virtual special meeting, or fail to instruct your broker on how to vote, it will have the effect of a vote against the Merger Agreement Proposal and will have no effect on the outcome of the other proposals. Abstentions will not be considered votes cast and therefore will have no effect on the outcome of the Advisory Compensation Proposal or the Adjournment Proposal. If a quorum is not present, the chairman of the Special Meeting or the Board of Directors of the Company (the “Company Board”) may adjourn or postpone the Special Meeting.
After careful consideration of the factors more fully described in the enclosed proxy statement, the Company Board, acting upon the unanimous recommendation of a committee of the Company Board consisting only of independent and disinterested directors of the Company Board, has unanimously: (a) determined that the transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company’s stockholders adopt the Merger Agreement. The Company Board unanimously recommends that you vote: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal.
Whether or not you plan to attend the virtual Special Meeting, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of the proxy statement titled “The Special Meeting — Voting at the Special Meeting”). If you attend the Special Meeting and vote thereat, your vote will revoke any proxy that you have previously submitted. You will be able to attend the Special Meeting and vote your shares electronically. Stockholders will be required to enter their control number to attend. Stockholders may also vote online prior to the meeting at www.proxyvote.com using the control number.
If you hold your shares in “street name”, you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the Merger Agreement Proposal, without your instructions.
If you sign, date and mail your proxy card without indicating how you wish to vote, your proxy will be counted as a vote: (1) “FOR” the Merger Agreement Proposal, (2) “FOR” the Advisory Compensation Proposal and (3) “FOR” the Adjournment Proposal.
By Order of the Board of Directors,
William H. Berkman
Co-Chairman of the Board of Directors and Chief
Executive Officer
Radius Global Infrastructure, Inc.
Executive Officer
Radius Global Infrastructure, Inc.
Dated: May 12, 2023
YOUR VOTE IS IMPORTANT
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, WE ENCOURAGE YOU TO SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE: (1) BY TELEPHONE; (2) OVER THE INTERNET; OR (3) BY SIGNING AND DATING THE ENCLOSED PROXY CARD AND RETURNING IT IN THE POSTAGE-PAID ENVELOPE PROVIDED. You may revoke your proxy or change your vote before the Special Meeting in the manner described in the enclosed proxy statement.
If you fail to (1) return your proxy card, (2) grant your proxy electronically over the Internet or by telephone or (3) vote at the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal or the Adjournment Proposal.
You should carefully read and consider the entire accompanying proxy statement and its annexes, including the Merger Agreement, along with all of the documents incorporated by reference into the accompanying proxy statement, as they contain important information about, among other things, the Mergers and how they affect you. If you have any questions concerning the Merger Agreement, the Mergers, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or need help voting your shares of Radius common stock, please contact our proxy solicitor:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
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RADIUS GLOBAL INFRASTRUCTURE, INC.
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
Bala Cynwyd, PA 19004
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 15, 2023
TO BE HELD ON JUNE 15, 2023
PROXY STATEMENT
This proxy statement contains information relating to a special meeting (including any adjournments or postponements thereof, the “Special Meeting”) of stockholders of Radius Global Infrastructure, Inc., a Delaware corporation (the “Company”, “Radius”, “we”, “us” or “our”), which will be held via live webcast on June 15, 2023, beginning at 8:30 a.m. Eastern Time (unless the Special Meeting is adjourned or postponed). Holders of (a) Class A common stock, par value $0.0001 per share, of the Company (“Class A Common Stock”), (b) Class B common stock, par value $0.0001 per share, of the Company (“Class B Common Stock” and, together with Class A Common Stock, “Company Common Stock”), (c) preferred stock, par value $0.0001 per share, of the Company designated as “Series A Founder Preferred Stock” (“Series A Founder Preferred Stock”) and (d) preferred stock, par value $0.0001 per share, of the Company designated as “Series B Founder Preferred Stock” (“Series B Founder Preferred Stock” and, together with Series A Founder Preferred Stock, “Founder Preferred Stock” and, Founder Preferred Stock together with Company Common Stock, “Company Capital Stock”) (such holders of Company Capital Stock, “Company Stockholders”) will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM. We are furnishing this proxy statement to Company Stockholders as part of the solicitation of proxies by the Board of Directors of the Company (the “Company Board”) for use at the Special Meeting and at any adjournments or postponements thereof. This proxy statement is dated May 12, 2023 and is first being mailed to Company Stockholders on or about May 12, 2023.
Unless otherwise indicated or as the context otherwise requires, all references in this proxy statement to:
•
“Carry Unit” means the single unit of limited liability company interests of OpCo designated as the “Carry Unit”.
•
“Closing Date” means the date of the closing of the transactions contemplated by the Merger Agreement.
•
“Code” means the Internal Revenue Code of 1986, as amended.
•
“Company Bylaws” means the Bylaws of the Company, effective as of October 2, 2020.
•
“Company Charter” means the Restated Certificate of Incorporation of the Company.
•
“Company Merger” means the merger of Merger Sub I with and into the Company, with the Company surviving such merger as a subsidiary of Parent.
•
“Company Merger Effective Time” means the effective time of the Company Merger.
•
“DGCL” means the General Corporation Law of the State of Delaware.
•
“DLLCA” means the Delaware Limited Liability Act.
•
“EQT” means EQT Partners, Inc.
•
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
•
“GAAP” means the accounting principles generally accepted in the United States.
1
•
“LTIP Units” means, collectively, the Series A LTIP Units, the Series B LTIP Units and the Series C LTIP Units.
•
“Merger Agreement” means the Agreement and Plan of Merger, dated as of March 1, 2023, by and among the Company, OpCo, Parent, Merger Sub I and Merger Sub II (as amended or otherwise modified from time to time).
•
“Merger Consideration” means the right to receive $15.00 in cash per share of Class A Common Stock, Series A Founder Preferred Stock or OpCo Class B Common Unit, as applicable.
•
“Merger Sub I” means Chord Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of Parent.
•
“Merger Sub II” means Chord Merger Sub II, LLC, a Delaware limited liability company and wholly owned subsidiary of Merger Sub I.
•
“Mergers” means the Company Merger and the OpCo Merger.
•
“Nasdaq” means Nasdaq Global Market.
•
“OpCo” means APW OpCo LLC, a Delaware limited liability company.
•
“OpCo Class A Common Units” means units of limited liability company interests of OpCo designated as “Class A Common” units, which are 100% held by the Company.
•
“OpCo Class B Common Units” means units of limited liability company interests of OpCo designated as “Class B Common” units.
•
“OpCo Common Units” means, collectively, the OpCo Class A Common Units and OpCo Class B Common Units.
•
“OpCo LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of OpCo, dated as of July 31, 2020.
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“OpCo Merger” means the merger of Merger Sub II with and into OpCo, with OpCo surviving such merger as a subsidiary of Parent and the Company.
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“OpCo Merger Effective Time” means the effective time of the OpCo Merger.
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“Parent” means Chord Parent, Inc., a Delaware corporation.
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“Parent Parties” means Parent, Merger Sub I and Merger Sub II.
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“PSP” means Public Sector Pension Investment Board.
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“Record Date” means May 9, 2023.
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“SEC” means the Securities and Exchange Commission.
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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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“Series A LTIP Unit” means the units of OpCo designated as “Series A LTIP” units.
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“Series B LTIP Unit” means the units of OpCo designated as “Series B LTIP” units.
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“Series C LTIP Unit” means the units of OpCo designated as “Series C LTIP” units.
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“Surviving Corporation” means the surviving entity of the Company Merger.
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“Surviving Entities” means, collectively, Surviving Corporation and Surviving LLC.
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“Surviving LLC” means surviving entity of the OpCo Merger.
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“Transaction Committee” means a committee of the Board consisting only of independent and disinterested directors of the Company Board.
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SUMMARY
This summary highlights selected information from this proxy statement related to the Mergers and may not contain all of the information that is important to you. To understand the Mergers more fully and for a more complete description of the legal terms of the Mergers, you should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including the Merger Agreement, along with all of the documents to which we refer in this proxy statement, as they contain important information about, among other things, the Mergers and how they affect you. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions in the section of this proxy statement titled “Where You Can Find More Information”. The Merger Agreement is attached as Annex A to this proxy statement. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Mergers.
Parties Involved in the Mergers (page 35)
Radius Global Infrastructure, Inc.
Radius Global Infrastructure, Inc., through its various subsidiaries, is a multinational owner and acquiror of triple net rental streams and real properties leased to wireless operators, wired operators, wireless tower companies, and other digital infrastructure operators. As of December 31, 2022, Radius had interests in the revenue streams of approximately 9,188 assets that were situated on approximately 7,024 different communications sites located throughout the United States and 20 other countries. The principal executive offices of Radius are located at 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004, and its telephone number is +1 (610) 660-4910.
APW OpCo LLC
APW OpCo LLC is the parent of AP WIP Investments Holdings, LP, one of the largest international aggregators of rental streams underlying wireless and other essential communications infrastructure sites through the acquisition of telecom real property interests and contractual rights. Radius directly owns a 96.6% interest in OpCo, and the remaining 3.4% interest is owned by other members of OpCo, including certain Radius executive officers. The principal executive offices of OpCo are located at 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004.
Chord Parent, Inc.
Chord Parent, Inc. is a Delaware corporation that will be controlled by affiliates of EQT and PSP upon the consummation of the transactions contemplated by the Merger Agreement. Parent was formed on February 23, 2023 solely for the purpose of entering into the Merger Agreement and related agreements and consummating the transactions contemplated thereby. Parent has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the consummation of the transactions contemplated by the Merger Agreement and related agreements, the Company will be a wholly owned subsidiary of Parent.
The principal executive offices of EQT are located at 1114 Avenue of the Americas, 45th Floor, New York, NY 10036 and the principal executive offices of PSP are located at 1250 René-Lévesque Boulevard West, Suite 1400, Montréal, Québec, Canada H3B 5E9.
Chord Merger Sub I, Inc.
Chord Merger Sub I, Inc. is a Delaware corporation and a wholly owned subsidiary of Parent and was formed on February 23, 2023, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub I has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the completion of the Company Merger, Merger Sub I will cease to exist and Radius will continue as the Surviving Corporation and a wholly owned subsidiary of Parent. The principal executive offices of Merger Sub I are located at 1114 Avenue of the Americas, 45th Floor, New York, NY 10036.
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Chord Merger Sub II, LLC
Chord Merger Sub II, LLC is a Delaware limited liability company and a wholly owned subsidiary of Merger Sub I and was formed on February 23, 2023, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub II has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the completion of the OpCo Merger, Merger Sub II will cease to exist and OpCo will continue as the Surviving LLC and a subsidiary of Parent and the Company. The principal executive offices of Merger Sub II are located at 1114 Avenue of the Americas, 45th Floor, New York, NY 10036.
The Mergers (page 36)
The Merger Agreement provides that, on the terms and subject to the conditions of the Merger Agreement and in accordance with the DLLCA, at the OpCo Merger Effective Time, Merger Sub II will merge with and into OpCo, the separate existence of Merger Sub II will cease and OpCo will continue as the Surviving LLC, becoming a subsidiary of Parent and the Company.
The Merger Agreement provides that, on the terms and subject to the conditions of the Merger Agreement and in accordance with the DGCL, at the Company Merger Effective Time, Merger Sub I will merge with and into the Company, the separate corporate existence of Merger Sub I will cease and the Company will continue its corporate existence as the Surviving Corporation, becoming a wholly owned subsidiary of Parent.
As a result of the Company Merger, Class A Common Stock will no longer be publicly traded and will be delisted from the Nasdaq. In addition, Class A Common Stock will be deregistered under the Exchange Act, and Radius will no longer file periodic reports with the SEC. Unless you are a Rollover Holder (as defined in the section of this proxy statement titled “Summary — Rollover Agreements”), you will not own any equity interests in the Surviving Corporation or the Surviving LLC.
Background of the Mergers (page 38)
A description of the process we undertook that led to the Mergers, including our discussions with EQT and PSP, is included in this proxy statement under the section titled “Proposal 1: Adoption of the Merger Agreement — Background of the Mergers”.
Merger Consideration (page 36)
Company Capital Stock
The Merger Agreement provides that, at the Company Merger Effective Time:
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each share of Class A Common Stock issued and outstanding immediately prior to the Company Merger Effective Time, except for (a) shares of the Company Capital Stock, for which the holders have demanded their rights to be paid the fair value of such Company Capital Stock in accordance with Section 262 of the DGCL (the “Appraisal Shares”), (b) shares of Company Common Stock that (i) are immediately prior to the Company Merger Effective Time owned by Parent, Merger Sub I or Merger Sub II or any direct or indirect wholly owned subsidiary of the Company, Parent, Merger Sub I or Merger Sub II or (ii) are immediately prior to the Company Merger Effective Time owned by the Company as treasury stock (collectively, “Owned Company Common Stock”) and (c) shares of Company Restricted Stock (as defined below), will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
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each share of Class B Common Stock issued and outstanding immediately prior to the Company Merger Effective Time, except for Owned Company Common Stock, will be canceled for no consideration;
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each share of Series A Founder Preferred Stock issued and outstanding immediately prior to the Company Merger Effective Time will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax; and
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each share of Series B Founder Preferred Stock issued and outstanding immediately prior to the Company Merger Effective Time will be canceled for no consideration.
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In addition, the Merger Agreement provides that, at the OpCo Merger Effective Time:
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each OpCo Class A Common Unit issued and outstanding immediately prior to the OpCo Merger Effective Time will be converted into one unit of limited liability company interests in the Surviving LLC and thereafter represent ownership of limited liability company interests in the Surviving LLC;
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each OpCo Class B Common Unit issued and outstanding immediately prior to the OpCo Merger Effective Time, except for any OpCo Class B Common Unit held by the Company (“Owned OpCo Class B Common Unit”) and any equity interest of OpCo that is subject to any Rollover Agreement (as defined in the Merger Agreement and described in further detail in the section of this proxy statement titled “Summary — Rollover Agreements”), will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
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each unit of OpCo designated as a “Series A Rollover Profits Unit” pursuant to the OpCo LLC Agreement (each, a “Series A Rollover Profits Unit”) outstanding as of immediately prior to the OpCo Merger Effective Time will be canceled and cease to exist and no consideration will be delivered in exchange therefor;
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each unit of OpCo designated as a “Series B Rollover Profits Unit” pursuant to the OpCo LLC Agreement (each, a “Series B Rollover Profits Unit”) outstanding as of immediately prior to the OpCo Merger Effective Time will be deemed fully vested (to the extent unvested) and be treated in the same manner as other OpCo Class B Common Units; and
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the Carry Unit will be canceled for no consideration.
If, between March 1, 2023 and the Closing, the number of outstanding shares of Company Capital Stock or equity interests of OpCo changes into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange (other than pursuant to any Rollover Agreement) of shares or similar transaction, the Merger Consideration and the cash amounts owed in respect of Company equity awards as described under the section of the proxy statement titled “The Merger Agreement — Treatment of Company Equity Awards”, as applicable, will be appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange (other than pursuant to any Rollover Agreement) of shares or similar transaction.
After the Mergers are completed, you will no longer have any rights as a Company Stockholder. For more information, please see the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Appraisal Rights”.
Parent will appoint a paying agent reasonably acceptable to the Company (the “Paying Agent”) to make payment of the Merger Consideration as contemplated by the Merger Agreement. At or prior to the Closing, Parent will cause to be deposited with the Paying Agent funds sufficient to pay the aggregate Merger Consideration. For more information, please see the section of this proxy statement titled “The Merger Agreement — Exchange and Payment Procedures”.
Treatment of Company Equity Awards (page 37)
As of Company Merger Effective Time or OpCo Merger Effective Time, as applicable, except as otherwise agreed by Parent and the applicable award holder, including pursuant to any Rollover Agreement:
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each option to purchase shares of Class A Common Stock (each, a “Company Stock Option”) outstanding as of the date of the Merger Agreement, whether vested or unvested, or outstanding as of the Company Merger Effective Time and vested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration, less the applicable exercise price, and the number of shares of Class A Common Stock subject to such Company Stock Option; provided that any such Company Stock Option with an exercise price that is equal to or greater than the Merger Consideration will be canceled for no consideration;
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each LTIP Unit outstanding as of the date of the Merger Agreement, except for Rollover Equity, will vest with all applicable performance conditions deemed satisfied and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration and
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the number of shares of Class A Common Stock into which such LTIP Unit is convertible immediately prior to the OpCo Merger Effective Time;
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each share of restricted stock subject to forfeiture conditions (“Company Restricted Stock”) held by an employee of the Company or any of its subsidiaries that is outstanding and unvested as of immediately prior to the Company Merger Effective Time will be canceled and converted into the right to receive a cash payment, without interest, equal to the Merger Consideration, except that such amount will vest and become payable subject to and in accordance with the vesting schedule applicable to the corresponding share of Company Restricted Stock immediately prior to the Company Merger Effective Time and otherwise subject to the same terms and conditions as such corresponding share of Company Restricted Stock (each, an “RS Payment Right”); provided that if the employment of a holder of an RS Payment Right is terminated following the Company Merger Effective Time but prior to the applicable vesting date by Parent without Cause (as defined in the Company 2020 Equity Incentive Plan, as may be amended from time to time, the “Company Stock Plan”) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such RS Payment Right will be accelerated to the first payroll date after the date of such termination; and
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each share of Company Restricted Stock held by a non-employee director of the Company Board that is outstanding as of immediately prior to the Company Merger Effective Time, whether vested or unvested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the Merger Consideration.
With respect to Company Stock Options and LTIP Units granted to employees of the Company or any of its subsidiaries following the date of the Merger Agreement, such equity awards will generally be canceled as of the Company Merger Effective Time or OpCo Merger Effective Time, as applicable, and converted into a right to receive a cash payment, without interest, based on the Merger Consideration (less the applicable exercise price and with all performance conditions deemed satisfied), except that such amount will vest and become payable subject to and in accordance with the vesting schedule applicable to the corresponding Company equity award immediately prior to the Company Merger Effective Time or OpCo Merger Effective Time, as applicable, and otherwise subject to the same terms and conditions as such corresponding Company equity award (each, a “Post-Signing Award Payment Right”); provided that, if the employment of a holder of such Post-Signing Award Payment Right is terminated following the Company Merger Effective Time or OpCo Merger Effective Time, as applicable, but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such Post-Signing Award Payment Right will be accelerated to the first payroll date after the date of such termination. For more information, please see the section of this proxy statement titled “The Merger Agreement — Treatment of Company Equity Awards”.
Treatment of Employee Stock Purchase Plan and Company Stock Plan (page 38)
Prior to the closing of the Mergers (the “Closing”), the Company will take such actions as are necessary to provide that no new offering period or purchase period will commence under the Company’s 2022 Employee Stock Purchase Plan, as may be amended from time to time (the “Company ESPP”), on or after the date of the Merger Agreement and both the Company ESPP and the Company Stock Plan will terminate as of the Company Merger Effective Time. For more information, please see the section of this proxy statement titled “The Merger Agreement — Treatment of Company Equity Awards”.
Voting and Support Agreements (page 91)
In connection with the execution of the Merger Agreement, the Parent Parties entered into Voting and Support Agreements (the “Voting and Support Agreements”) with William H. Berkman, Centerbridge Partners, L.P., Imperial Landscape Sponsor LLC and TOMS Acquisition II LLC and their respective affiliated persons or entities, as applicable. As of May 9, 2023, the Company Stockholders party to the Voting and Support Agreements hold, collectively, approximately 22.9% of the voting power of the Company Capital Stock. Under the Voting and Support Agreements, the applicable Company Stockholders have agreed to vote their respective shares of Company Capital Stock in favor of the adoption of the Merger Agreement and certain other matters. Each of the Voting and Support Agreements terminates upon the first to occur of: (a) the valid termination of the Merger Agreement in accordance with its terms without the consummation
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of the Mergers; (b) the Company Merger Effective Time; (c) the mutual written consent of the parties thereto; (d) the time of any modification, waiver or amendment to any provision of the Merger Agreement that reduces the amount, changes the form or type, imposes any restrictions on the applicable Company Stockholder’s right to receive, or otherwise adversely affects the form, type or amount of consideration payable to such Company Stockholder pursuant to the Merger Agreement as in effect on date of the Merger Agreement and (e) delivery of a written notice to Parent of an Adverse Recommendation Change (as defined in the Merger Agreement and described in further detail in the section of this proxy statement titled “The Merger Agreement — Change in Company Board Recommendation”) in accordance with the Merger Agreement. The Voting and Support Agreements also contain restrictions on transfer of shares of Company Capital Stock held by the Company Stockholders party thereto, subject to certain exceptions.
Rollover Agreements (page 91)
In connection with the execution of the Merger Agreement, (a) Parent and Merger Sub II entered into a rollover agreement with William H. Berkman and certain of his affiliates, pursuant to which, subject to the terms and conditions set forth therein, (i) Mr. Berkman and/or his affiliates will contribute 100% of his existing interests in OpCo (the “Initial Rolled Units”), as well as the corresponding shares of Company Capital Stock owned by Mr. Berkman and/or his affiliates, to Merger Sub II and (ii) at the Closing, 75% of the Class A Common Units of the Surviving LLC received by Mr. Berkman and/or his affiliates in the OpCo Merger in respect of the Initial Rolled Units will be redeemed by the Surviving LLC for cash consideration equal to $15.00 per unit, with such redemption being funded with cash on hand at the level of OpCo prior to the Closing, and (b) Merger Sub II entered into a rollover agreement with each of Scott G. Bruce, Richard I. Goldstein and Glenn J. Breisinger, pursuant to which, subject to the terms and conditions set forth therein, Mr. Bruce, Mr. Goldstein and Mr. Breisinger will roll over a portion of their existing equity interests in OpCo into equity interests in the Surviving LLC. Each of these rollover agreements is referred to herein as a “Rollover Agreement”; each of Messrs. Berkman, Bruce, Goldstein and Breisinger, in their respective capacity as a party to a Rollover Agreement, is referred to herein as a “Rollover Holder”; any equity interest of OpCo and the Company that is subject to any Rollover Agreement is referred to herein as “Rollover Equity”; and the aggregate value of any Rollover Equity assuming such Rollover Equity was cashed out in the transactions contemplated by the Merger Agreement and in accordance with the terms thereof is referred to herein as the “Rollover Amount”.
Tax Protection Agreement (page 92)
On March 1, 2023, Mr. Berkman, EQT and PSP agreed that, upon the Closing, subject to and in accordance with the Merger Agreement, Mr. Berkman will, and Parent will cause each of the Surviving LLC and the Surviving Corporation (together with the Surviving LLC, the “Company TPA Parties”) to, enter into a tax protection agreement (the “TPA”), pursuant to which the Company TPA Parties will indemnify Mr. Berkman and certain of his affiliated entities for any current taxes resulting from certain non-ordinary course actions that are taken by the Company TPA Parties. In the event that the Company TPA Parties take such actions, they will be liable for grossed-up tax amounts associated with the income or gain recognized by Mr. Berkman or such of his affiliated entities as a result of such actions. The Company TPA Parties’ liability under the TPA is capped at (i) $32 million in the aggregate within the first 20 years of the Closing Date and (ii) $22.5 million in the aggregate after the twentieth anniversary of the Closing Date; however, in certain limited circumstances, the cap will be increased to $40 million. As of the date of this proxy statement, no amounts have been paid to Mr. Berkman or any of his affiliated entities under the terms of the TPA.
Material U.S. Federal Income Tax Consequences of the Mergers (page 98)
The receipt of cash pursuant to the Company Merger will be a taxable transaction for U.S. federal income tax purposes. Generally, for U.S. federal income tax purposes, if you are a holder of common stock who is a U.S. holder (as defined below in the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Material U.S. Federal Income Tax Consequences of the Mergers”), you will recognize capital gain or loss equal to the difference between the amount of cash you receive in the Company Merger and your adjusted tax basis in your shares of Company Common Stock converted into cash in the Company Merger.
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If you are a holder of Company Common Stock who is a non-U.S. holder (as defined below in the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Material U.S. Federal Income Tax Consequences of the Mergers”), the Company Merger will generally not be taxable to you under U.S. federal income tax laws unless you have certain connections to the United States or we are or have been a United States real property holding corporation and certain other conditions are met.
You should read the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Material U.S. Federal Income Tax Consequences of the Mergers” beginning on page 98 for a more complete discussion of the material U.S. federal income tax consequences of the Company Merger. You should consult your own tax advisor for a full understanding of how the Mergers will affect your U.S. federal, state, local or non-U.S. taxes in light of your particular circumstances.
Litigation Related to the Mergers (page 93)
On April 4, 2023, the Company received a demand letter from Norfolk County Retirement System, a purported holder of shares of Class A Common Stock, requesting access to certain books and records of the Company to investigate purported breaches of fiduciary duty, director independence and disinterestedness and/or other corporate wrongdoing in connection with the Mergers and related transaction documents. On April 14, 2023, the Company responded to this demand letter by denying the allegations contained therein and objecting to such purported stockholder's scope of requests but indicating a proper inspection of books and records would be permitted, subject to negotiation of an appropriate scope of production and execution of a standard confidentiality agreement.
Between April 7, 2023 and May 1, 2023, three complaints were filed in connection with the Mergers. On April 7, 2023, a complaint, captioned Ryan O’Dell v. Radius Global Infrastructure, Inc. et al., 23-cv-2956 (S.D.N.Y.), was filed in the United States District Court for the Southern District of New York by a purported holder of shares of Class A Common Stock; on April 12, 2023, a complaint, captioned Elaine Wang v. Radius Global Infrastructure, Inc. et al., 23-cv-3068 (S.D.N.Y.), was filed in the United States District Court for the Southern District of New York by a purported holder of shares of Class A Common Stock; and on May 1, 2023, a complaint, captioned Shannon Jenkins v. Radius Global Infrastructure, Inc. et al., 23-cv-3657 (S.D.N.Y.), was filed in the United States District Court for the Southern District of New York by a purported holder of shares of Class A Common Stock; all three cases named as defendants the Company and members of the Company Board. The complaints allege, among other things, that the defendants caused to be filed with the SEC a materially incomplete and misleading preliminary proxy statement relating to the Mergers in violation of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. Among other remedies, the complaints seek: an order enjoining the defendants from proceeding with the Mergers unless and until the defendants disclose certain allegedly material information that was allegedly omitted from the preliminary proxy statement; rescinding the Merger Agreement or any of the terms thereof to the extent already implemented or granting rescissory damages; awarding the plaintiffs the costs and disbursements of their actions, including reasonable attorneys’ and expert fees and expenses; and granting such other and further relief as the court may deem just and proper. The Company has not yet formally responded to these complaints, but believes that the allegations contained therein are without merit.
Between April 17, 2023 and May 12, 2023, the Company received six demand letters from purported holders of shares of Class A Common Stock; all six demand letters alleged disclosure deficiencies in the preliminary proxy statement and demanded issuance of corrective disclosures. The Company has not yet formally responded to these demand letters, but believes that the allegations contained therein are without merit.
As of May 12, 2023, the Company was not aware of the filing of other lawsuits or the submission of other demand letters challenging the Mergers and/or alleging deficiencies with respect to the preliminary proxy statement; however, such lawsuits or demand letters may be filed or submitted, respectively, in the future.
Appraisal Rights (page 94)
If the Mergers are consummated, persons who do not wish to accept the Merger Consideration are entitled to seek appraisal of their shares of Company Capital Stock under Section 262 of the DGCL and, if all procedures described in Section 262 of the DGCL are strictly complied with, to receive payment in
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cash for the fair value of their shares of Company Capital Stock exclusive of any element of value arising from the accomplishment or expectation of the Mergers, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value. The “fair value” of your shares of Company Capital Stock as determined by the Delaware Court of Chancery may be more or less than, or the same as, the Merger Consideration that you are otherwise entitled to receive under the Merger Agreement. These rights are known as “appraisal rights”. This proxy statement serves as a notice of such appraisal rights pursuant to Section 262 of the DGCL.
Persons who exercise appraisal rights under Section 262 of the DGCL will not receive the Merger Consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. They will receive an amount determined to be the “fair value” of their shares of Company Capital Stock following petition to, and an appraisal by, the Delaware Court of Chancery. Persons considering seeking appraisal should recognize that the fair value of their shares of Company Capital Stock determined under Section 262 of the DGCL could be more than, the same as or less than the Merger Consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. Strict compliance with the procedures set forth in Section 262 of the DGCL is required. Failure to comply strictly with all of the procedures set forth in Section 262 of the DGCL may result in the withdrawal, loss or waiver of appraisal rights. Consequently, and in view of the complexity of the provisions of Section 262 of the DGCL, persons wishing to exercise appraisal rights are urged to consult their legal and financial advisors before attempting to exercise such rights.
A holder of record or beneficial owner of shares of Company Capital Stock who (a) continuously holds such shares through the Company Merger Effective Time, (b) has not consented to or otherwise voted in favor of the Mergers or otherwise withdrawn, lost or waived appraisal rights, (c) strictly complies with the procedures under Section 262 of the DGCL, (d) does not thereafter withdraw his, her or its demand for appraisal of such shares and (e) in the case of a beneficial owner, a person who (i) reasonably identifies in his, her or its demand the holder of record of the shares for which the demand is made, (ii) provides documentary evidence of such beneficial owner’s beneficial ownership and a statement that such documentary evidence is a true and correct copy of what it purports to be and (iii) provides an address at which such beneficial owner consents to receive notices given by the Company and to be set forth on the Chancery List (as defined in the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Appraisal Rights”), will be entitled to receive the fair value of his, her or its shares of Company Capital Stock exclusive of any element of value arising from the accomplishment or expectation of the Mergers, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value.
A copy of Section 262 of the DGCL may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. The foregoing summary is not a complete statement of the law relating to appraisal rights and is qualified in its entirety by reference to Section 262 of the DGCL and any amendments thereto after the date of this proxy statement. Any person who desires to exercise his, her or its appraisal rights should review carefully Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights. For more information, please see the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Appraisal Rights”.
Regulatory Approvals Required for the Mergers (page 100)
The Mergers are subject to receipt of consents, approvals or other clearances under (a) the antitrust laws of the European Union, China and Chile (and if Parent determines in accordance with terms set forth in the confidential disclosure schedules that approval is required, Turkey and Israel), (b) the foreign investment laws of Australia, France, Germany, Italy, Romania, Spain and the United Kingdom and (c) the foreign investment laws of each of Belgium, Canada, the Netherlands and the Republic of Ireland, solely in the event any such jurisdiction enacts a new (or expands an existing) mandatory and/or suspensory pre-closing foreign investment law applicable to the transactions contemplated by the Merger Agreement following the date of the Merger Agreement. In each case, the Mergers cannot be completed until the parties obtain clearance or approval to consummate the Mergers or the applicable waiting periods have expired or been terminated. As of May 12, 2023, the parties submitted filings with the applicable governmental authorities under (i) the antitrust laws of the European Union, China and Chile; and (ii) the foreign investment laws of Australia, France, Germany, Italy, Romania, Spain and the United Kingdom. Clearance was received
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from such governmental authorities under the foreign investment laws of Germany on April 27, 2023 and Spain on May 3, 2023. For more information, please see the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Regulatory Approvals Required for the Mergers”.
Closing Conditions (page 123)
The obligations of the parties to consummate the Mergers are subject to the satisfaction or waiver of certain conditions, including (among other conditions) the following:
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no governmental authority of competent authority shall have issued an order or enacted a law (collectively, “Restraints”) that is in effect and restrains, enjoins, makes illegal or otherwise prohibits the consummation of the Mergers or imposes a Burdensome Condition (as defined under the section of this proxy statement titled “The Merger Agreement — Efforts to Consummate the Mergers”);
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the waiting period (and any extension thereof) applicable to the consummation of the Mergers under the antitrust and foreign investment laws (as described in the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Regulatory Approvals Required for the Mergers”) shall have expired or been terminated without the imposition of any Burdensome Condition and the approvals under such antitrust and foreign investment laws shall have been received without the imposition of any Burdensome Condition;
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the adoption of the Merger Agreement by the affirmative vote of the holders of at least a majority of the outstanding shares of Company Capital Stock entitled to vote thereon at the Special Meeting, voting together as a single class (such approval, the “Company Stockholder Approval”);
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the accuracy of the representations and warranties contained in the Merger Agreement (subject to certain materiality qualifiers);
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the compliance with and performance in all material respects by each of the parties of its obligations required to be complied with or performed by it prior to the Closing; and
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in the case of the Company:
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no default under certain of the Company’s debt agreements having occurred and continuing immediately prior to and immediately after giving effect to the Mergers;
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(a) having available a minimum unrestricted cash balance of $210,000,000 to be used by the Parent Parties to make the payments required to be made by the Parent Parties and the Company at the Closing and (b) having an additional amount of cash not less than $30,000,000;
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no effect, change, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (as defined in the section of this proxy statement titled “The Merger Agreement — Representations and Warranties”) having occurred since the date of the Merger Agreement; and
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certain waivers of change of control provisions under certain of the debt agreements of the Company and its subsidiaries being in full force and effect at the Closing.
For more information, please see the section of this proxy statement titled “The Merger Agreement — Conditions to the Closing of the Mergers”.
Financing of the Mergers (page 121)
There is no financing condition to the Mergers. Parent plans to pay the Merger Consideration and any other amounts required to be paid in connection with the consummation of the transactions contemplated by the Merger Agreement with the aggregate amount of cash proceeds provided pursuant to the equity commitment letters described below, together with an amount of available cash on hand at the Company not less than $210,000,000 and the Rollover Amount.
In connection with the execution of the Merger Agreement, on March 1, 2023, Parent obtained equity financing commitments for an aggregate amount of $1,798,600,000 for purposes of financing the transactions contemplated by the Merger Agreement. Certain investment funds affiliated with EQT and PSP (such
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funds and PSP, collectively, the “Sponsors”) have committed to capitalize Parent at the Closing with equity contributions equal to $1,079,160,000 and $719,440,000, respectively, in each case on the terms and subject to the conditions set forth in the equity commitment letters between the applicable Sponsors, on the one hand, and Parent, on the other hand. In addition, the Sponsors have provided termination equity financing commitments in favor of Parent to fund Parent’s obligation to pay Radius a termination fee of $103,000,000 (the “Parent Termination Fee”) that may become payable to the Company under certain circumstances, subject to the terms and conditions set forth in the Merger Agreement and such termination equity financing commitments.
Required Stockholder Approval (page 30)
The affirmative vote of the holders of at least a majority of the outstanding shares of Company Capital Stock entitled to vote thereon at the Special Meeting, voting together as a single class, is required to approve the proposal to adopt the Merger Agreement (the “Merger Agreement Proposal”). As of the Record Date, 56,477,943 votes constitute a majority of the outstanding shares of Company Capital Stock. Approval of (a) the proposal to approve, on an advisory (nonbinding) basis, the compensation that will or may be paid or become payable to Radius’ named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated thereby (the “Advisory Compensation Proposal”) and (b) the proposal to adjourn the Special Meeting (the “Adjournment Proposal”), each requires the affirmative vote of a majority of the votes cast on the proposal.
As of the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, 19,949,034 shares of Company Capital Stock, representing approximately 17.7% voting power of the outstanding Company Capital Stock as of the Record Date.
We currently expect that all directors and executive officers of the Company, including those that are not party to the Director Voting and Support Agreements (as defined in the section of this proxy statement titled “Questions And Answers About The Special Meeting Of Stockholders And The Mergers”), will vote all of their respective shares of Company Capital Stock: (1) “FOR” the Merger Agreement Proposal, (2) “FOR” the Advisory Compensation Proposal and (3) “FOR” the Adjournment Proposal.
The Special Meeting (page 29)
Date, Time and Location
The Special Meeting to consider and vote on the proposal to adopt the Merger Agreement will be held virtually via live webcast on June 15, 2023, beginning at 8:30 a.m. Eastern Time (unless the Special Meeting is adjourned or postponed). Company Stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM (the “Special Meeting website”) and using the 16-digit control number included in the proxy materials. For purposes of attendance at the Special Meeting, all references in this proxy statement to “present” shall mean virtually present at the Special Meeting.
Record Date; Shares Entitled to Vote
You are entitled to vote at the Special Meeting if you owned shares of Company Capital Stock at the close of business on May 9, 2023. Each holder of our Class A Common Stock and Class B Common Stock are entitled to one vote for each share of common stock they held on the Record Date. Holders of shares of our Founder Preferred Stock are entitled to a number of votes equal to the number of shares of Class A Common Stock or Class B Common Stock, as applicable, into which each share of Founder Preferred Stock held of record by such holder could then be converted.
Quorum
As of the Record Date, there were 112,955,884 shares of Company Capital Stock outstanding and entitled to vote at the Special Meeting. The presence, in person or represented by proxy, of the holders of a majority of the shares of Company Capital Stock entitled to vote on the Record Date, will constitute a quorum at the Special Meeting.
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Recommendation of the Company Board (page 32)
The Company Board, acting upon the unanimous recommendation of the Transaction Committee, has unanimously: (a) determined that the transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and the Company Stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company Stockholders adopt the Merger Agreement.
The Company Board unanimously recommends that you vote: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal.
Prior to the Special Meeting, under certain circumstances, the Company Board may make an Adverse Recommendation Change (as defined in the section of this proxy statement titled “The Merger Agreement — Change in Company Board Recommendation”) in response to an Intervening Event (as defined in the section of this proxy statement titled “The Merger Agreement — Change in Company Board Recommendation”) or in connection with a Superior Proposal (as defined in the section of this proxy statement titled “The Merger Agreement — No Solicitation”).
However, the Company Board cannot make an Adverse Recommendation Change unless it complies with certain procedures in the Merger Agreement, including (a) giving Parent at least four business days’ prior written notice (subject to extension in certain circumstances) of its intention to take such action, (b) during such four-business day period, negotiating with Parent in good faith to enable Parent to propose in writing a binding offer to effect revisions to the terms of the Merger Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal and (c) following the end of such four-business day period, the Company Board again determines in good faith (after consultation with outside counsel) (i) that the Superior Proposal would continue to constitute a Superior Proposal if the proposed revisions in such binding offer were to be given effect and (ii) that the failure of the Company Board to make an Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties to the Company or Company Stockholders under applicable law. The termination of the Merger Agreement (x) by Parent in the event of (i) an Adverse Recommendation Change or (ii) the Company or any of its affiliates entering into a Company Acquisition Agreement or (y) by Radius (prior to receipt of Company Stockholder Approval) to enter into a definitive agreement to consummate a Superior Proposal, in each case of clauses (x) and (y), will result in the payment by Radius of a termination fee of $52,000,000 (the “Company Termination Fee”). Radius will also be required to pay the Company Termination Fee in additional circumstances that involve a Takeover Proposal being made prior to certain terminations of the Merger Agreement and Radius subsequently consummating a Takeover Proposal. For more information, please see the section of this proxy statement titled “The Merger Agreement — Change in Company Board Recommendation”.
Opinion of Citigroup Global Markets Inc. (page 62 and Annex B)
The Company retained Citigroup Global Markets Inc. (“Citi”) as its lead financial advisor in connection with a possible transaction involving the Company. In connection with Citi’s engagement, the Company Board requested that Citi evaluate the fairness, from a financial point of view, to the holders of shares of Class A Common Stock of the Merger Consideration to be received by such holders pursuant to the terms and subject to the conditions set forth in the Merger Agreement. On March 1, 2023, at a meeting of the Company Board held to evaluate the proposed Mergers, Citi rendered to the Company Board an oral opinion, subsequently confirmed by delivery of a written opinion, dated March 1, 2023, to the effect that, as of the date of Citi’s written opinion and based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken by Citi as set forth in its written opinion, the Merger Consideration to be received by the holders of shares of Class A Common Stock was fair, from a financial point of view, to such holders.
The full text of Citi’s written opinion, dated March 1, 2023, to the Company Board, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken by Citi in rendering its opinion, is attached to this proxy statement as Annex B and is incorporated herein by reference in its entirety. The summary of Citi’s opinion in the section titled “Proposal 1: Adoption of the Merger Agreement — Opinion of Citi” beginning on page 62 of this
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proxy statement is qualified in its entirety by reference to the full text of Citi’s opinion. Citi’s opinion was rendered to the Company Board (in its capacity as such) in connection with its evaluation of the proposed Mergers and was limited to the fairness, from a financial point of view, as of the date of Citi’s written opinion, to holders of shares of Class A Common Stock of the Merger Consideration to be received by such holders pursuant to the terms and subject to the conditions set forth in the Merger Agreement. Citi’s opinion did not address any other terms, aspects or implications of the proposed Mergers. Citi’s opinion did not address the underlying business decision of the Company to effect or enter into the proposed Mergers, the relative merits of the proposed Mergers as compared to any alternative business strategies that might have existed for the Company or the effect of any other transaction in which the Company might have engaged or considered. Citi’s opinion is not intended to be and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act on any matters relating to the proposed Mergers or otherwise.
For more information, see the section in this proxy statement titled “Proposal 1: Adoption of the MergerAgreement — Opinion of Citi”.
Opinion of Goldman Sachs & Co. LLC (page 67 and Annex C)
The Company also retained Goldman Sachs & Co. LLC (“Goldman Sachs”) as an additional financial advisor. Goldman Sachs delivered its opinion to the Company Board that, as of March 1, 2023 and based upon and subject to the factors and assumptions set forth therein, the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders.
The full text of the written opinion of Goldman Sachs, dated March 1, 2023, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C. Goldman Sachs provided advisory services and its opinion for the information and assistance of the Company Board in connection with its consideration of the Mergers. Goldman Sachs’ opinion is not a recommendation as to how any holder of Class A Common Stock should vote or act with respect to such Mergers or any other matter.
For more information, see the section in this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Opinion of Goldman Sachs”.
Opinion of Barclays Capital Inc. (page 74 and Annex D)
The Transaction Committee engaged Barclays Capital Inc. (“Barclays”) to act as its financial advisor in connection with evaluating a strategic transaction outside of the Company’s ordinary course of business, including a possible sale of the Company, pursuant to an engagement letter dated August 24, 2022. On March 1, 2023, Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Transaction Committee that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, from a financial point of view, the Merger Consideration to be received by the holders of shares of Class A Common Stock (other than the executive officers of the Company and other than TOMS Acquisition II LLC and Imperial Landscape Sponsor LLC (together, the “Excluded Stockholders”)) in the Mergers is fair to such holders.
The full text of Barclays’ written opinion is attached as Annex D to this proxy statement. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety.
For further discussion of Barclays’ opinion, see the section titled “Proposal 1: Adoption Of The Merger Agreement — Opinion of Barclays” beginning on page 74 of this proxy statement.
Interests of the Company’s Directors and Executive Officers in the Mergers (page 84)
The Company’s directors and executive officers have financial interests in the Mergers that may be different from, or in addition to, the interests of the Company Stockholders, generally. The Company Board and the Transaction Committee were aware of and considered these interests in reaching the determination
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to approve the execution, delivery and performance by the Company of the Merger Agreement and recommend that Company Stockholders approve the Merger Agreement Proposal. These interests may include:
•
the treatment of Company equity awards provided for under the Merger Agreement;
•
severance and other benefits payable in the case of certain qualifying terminations under the terms of individual employment agreements;
•
the potential to receive, with respect to annual bonuses for the year in which the Closing occurs, for the portion of the performance period that elapses following the Closing, a bonus at no less than target level;
•
the potential grant of cash-based retention and/or transaction awards under programs established for the benefit of certain Company employees;
•
agreements to rollover a portion of existing equity interests in OpCo into equity interests in the Surviving LLC;
•
the continued employment of certain executive officers after Closing pursuant to new employment agreements entered into with Chord TopCo, LP;
•
eligibility for certain executive officers and employees to participate in a new management equity program and/or cash-based long-term term incentive plan following the Closing;
•
the potential for Mr. Berkman and certain of his affiliated entities to be indemnified by the Surviving LLC and/or the Surviving Corporation for certain tax liabilities under a tax protection agreement; and
•
continued indemnification and insurance coverage under the Merger Agreement, the Company’s organizational documents and indemnification agreements the Company has entered into with each of its directors and executive officers, including, with respect to the Company’s executive officers, under individual employment agreements.
These interests are described in more detail, and certain of them are quantified, in the section titled “Proposal 1: Adoption of the Merger Agreement — Interests of the Company’s Directors and Executive Officers in the Mergers”.
No Solicitation (page 112)
The Merger Agreement generally restricts the Company’s ability to directly or indirectly solicit Takeover Proposals (as defined in the section of this proxy statement titled “The Merger Agreement — No Solicitation”) from third parties (including by furnishing non-public information), to participate in discussions or negotiations with third parties regarding any Takeover Proposal, to enter into agreements providing for or relating to any Takeover Proposal or to approve or recommend any Takeover Proposal. Under certain circumstances, however, and in compliance with certain obligations under the Merger Agreement, if, prior to obtaining the Company Stockholder Approval, the Company receives a Takeover Proposal that did not result from any breach of the Merger Agreement by the Company, the Company may furnish information to and engage in discussions or negotiations with, a person in respect of a Takeover Proposal if in each case, the Company Board determines in good faith (after consultation with financial advisors and outside legal counsel) that such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal (as defined in the section of this proxy statement titled “The Merger Agreement — No Solicitation”) and not taking such actions would be inconsistent with its fiduciary duties under applicable law. For more information, please see the section of this proxy statement titled “The Merger Agreement — No Solicitation”.
Termination of the Merger Agreement (page 124)
In addition to the circumstances described above, Parent and the Company have certain rights to terminate the Merger Agreement under customary circumstances, including (a) by the mutual written consent of Parent and the Company, (b) the imposition of a final and non-appealable Restraint, (c) certain uncured breaches of the Merger Agreement by the other party, (d) if the Company Merger Effective Time
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shall not have occurred on or prior to the End Date (as such date may be extended under certain circumstances described in the sections of this proxy statement titled “The Merger Agreement — Termination of the Merger Agreement — Termination by either the Company or Parent” and “The Merger Agreement — Specific Enforcement — Extension of the End Date”) or (e) if the Company Stockholder Approval has not been obtained. For more information, please see the section of this proxy statement titled “The Merger Agreement — Termination of the Merger Agreement”.
Under certain circumstances, the Company will be required to pay the Company Termination Fee to Parent and, under certain other circumstances, Parent will be required to pay the Parent Termination Fee to the Company. For more information, please see the section of this proxy statement titled “The Merger Agreement — Termination Fees”.
Effect on the Company If the Mergers Are Not Completed (page 36)
If the Merger Agreement is not adopted by Company Stockholders, or if the Mergers are not completed for any other reason:
•
Company Stockholders and holders of OpCo Common Units will not be entitled to, nor will they receive, any payment for their respective shares of Company Capital Stock or OpCo Common Units, as applicable, pursuant to the Merger Agreement;
•
(a) Radius will remain an independent public company; (b) Class A Common Stock will continue to be listed and traded on the Nasdaq and registered under the Exchange Act; and (c) Radius will continue to file periodic reports with the SEC; and
•
under certain specified circumstances described in the section of this proxy statement titled “The Merger Agreement — Termination Fees”, Radius will be required to pay Parent the Company Termination Fee and, under certain other circumstances, Parent will be required to pay Radius the Parent Termination Fee.
For more information, please see the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Effect on the Company If the Mergers Are Not Completed”.
Additional Information (page 136)
You can find more information about the Company in the periodic reports and other information we file with the SEC. The information is available at the SEC’s public reference facilities and at the website maintained by the SEC at www.sec.gov. Please see the section of this proxy statement titled “Where You Can Find More Information”.
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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING OF STOCKHOLDERS
AND THE MERGERS
AND THE MERGERS
The following questions and answers address some commonly asked questions regarding the Mergers, the Merger Agreement and the Special Meeting. These questions and answers may not address all questions that are important to you. You should carefully read and consider the more detailed information contained elsewhere in this proxy statement and the annexes to this proxy statement, including the Merger Agreement, along with all of the documents we refer to in this proxy statement, as they contain important information about, among other things, the Mergers and how they affect you. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions in the section of this proxy statement titled “Where You Can Find More Information”.
Q: Why am I receiving these materials?
A:
The Company Board is furnishing this proxy statement and form of proxy card to the Company Stockholders in connection with the solicitation of proxies to be voted at the Special Meeting.
Q: Why is Radius proposing the Mergers?
A:
The Company Board and the Transaction Committee carefully reviewed and considered the terms and conditions of the Merger Agreement, including the Mergers and the other transactions contemplated thereby. The Company Board, acting upon the unanimous recommendation of the Transaction Committee, has unanimously: (a) determined that the transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and the Company Stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company Stockholders adopt the Merger Agreement. For more information regarding key factors the Company Board and the Transaction Committee considered in determining to recommend the adoption of the Merger Agreement by Company Stockholders, see the section titled “Proposal 1: Adoption of the Merger Agreement — Recommendation of the Company Board and Reasons for the Mergers”.
Q: When and where is the Special Meeting?
A:
The Special Meeting is scheduled to be held virtually via live webcast on June 15, 2023, at 8:30 a.m. Eastern Time (unless the Special Meeting is adjourned or postponed). There will not be a physical location for the Special Meeting, and you will not be able to attend in person. We are holding the Special Meeting as a virtual meeting, which relies on the types of digital infrastructure-related assets we own and continue to acquire. Company Stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM and using the 16-digit control number included in the proxy materials.
Q: What am I being asked to vote on at the Special Meeting?
A:
You are being asked to vote on the following proposals:
•
to adopt the Merger Agreement Proposal;
•
to approve, on an advisory (nonbinding) basis, the Advisory Compensation Proposal; and
•
to approve the Adjournment Proposal.
Q: Who is entitled to vote at the Special Meeting?
A:
Company Stockholders as of the Record Date are entitled to notice of the Special Meeting and to vote at the Special Meeting. Each holder of shares of Company Capital Stock shall be entitled to cast one vote on each matter properly brought before the Special Meeting for each such share owned at the close of business on the Record Date. Virtual attendance at the Special Meeting via the Special Meeting website is not required to vote.
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Q: May I attend and vote at the Special Meeting?
A:
All Company Stockholders as of the Record Date may attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM and using the 16-digit control number included in the proxy materials.
Shares held directly in your name as a stockholder of record may be voted at the Special Meeting via the Special Meeting website by using the 16-digit control number included in the proxy materials. Shares held in “street name” may be voted at the Special Meeting via the Special Meeting website only if you obtain a legal proxy from your bank, broker or other nominee.
Even if you plan to attend the virtual Special Meeting, we encourage you to sign, date and return the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of this proxy statement titled “The Special Meeting — Voting at the Special Meeting”) so that your vote will be counted if you later decide not to or become unable to virtually attend the Special Meeting. If you attend the Special Meeting and vote thereat, your vote will revoke any proxy previously submitted.
Q: What will I receive if the Mergers are completed?
The Merger Agreement provides that, at the Company Merger Effective Time:
•
each share of Class A Common Stock issued and outstanding immediately prior to the Company Merger Effective Time, except for the Appraisal Shares, Owned Company Common Stock and shares of Company Restricted Stock, will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
•
each share of Class B Common Stock issued and outstanding immediately prior to the Company Merger Effective Time, except for Owned Company Common Stock, will be canceled for no consideration;
•
each share of Series A Founder Preferred Stock issued and outstanding immediately prior to the Company Merger Effective Time will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax; and
•
each share of Series B Founder Preferred Stock issued and outstanding immediately prior to the Company Merger Effective Time will be canceled for no consideration.
In addition, the Merger Agreement provides that, at the OpCo Merger Effective Time:
•
each OpCo Class A Common Unit issued and outstanding immediately prior to the OpCo Merger Effective Time will be converted into one unit of limited liability company interests in the Surviving LLC and thereafter represent ownership of limited liability company interests in the Surviving LLC;
•
each OpCo Class B Common Unit issued and outstanding immediately prior to the OpCo Merger Effective Time, except for Owned OpCo Class B Common Units and any Rollover Equity, will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
•
each Series A Rollover Profits Unit outstanding as of immediately prior to the OpCo Merger Effective Time will be canceled and cease to exist and no consideration will be delivered in exchange therefor;
•
each Series B Rollover Profits Unit outstanding as of immediately prior to the OpCo Merger Effective Time will be deemed fully vested (to the extent unvested) and be treated in the same manner as other OpCo Class B Common Units; and
•
the Carry Unit will be canceled for no consideration.
If, between March 1, 2023 and the Closing, the number of outstanding shares of Company Capital Stock or equity interests of OpCo changes into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange
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(other than pursuant to any Rollover Agreement) of shares or similar transaction, the Merger Consideration and the cash amounts owed in respect of Company equity awards, as applicable, will be appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange (other than pursuant to any Rollover Agreement) of shares or similar transaction.
Q: What are the material U.S. federal income tax consequences of the Mergers?
A:
The receipt of cash pursuant to the Company Merger will be a taxable transaction for U.S. federal income tax purposes. Generally, for U.S. federal income tax purposes, if you are a holder of Company Common Stock who is a U.S. holder (as defined below in the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Material U.S. Federal Income Tax Consequences of the Mergers”), you will recognize capital gain or loss equal to the difference between the amount of cash you receive in the Company Merger and your adjusted tax basis in your shares of Company Common Stock converted into cash in the Company Merger.
If you are a holder of Company Common Stock who is a non-U.S. holder (as defined below in the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Material U.S. Federal Income Tax Consequences of the Mergers”), the Company Merger will generally not be taxable to you under U.S. federal income tax laws unless you have certain connections to the United States or we are or have been a United States real property holding corporation and certain other conditions are met.
You should read the section of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Material U.S. Federal Income Tax Consequences of the Mergers” beginning on page 98 for a more complete discussion of the material U.S. federal income tax consequences of the Company Merger. You should consult your own tax advisor for a full understanding of how the Mergers will affect your U.S. federal, state, local or non-U.S. taxes in light of your particular circumstances.
Q: What will happen to outstanding Radius equity compensation awards in the Mergers?
As of Company Merger Effective Time or OpCo Merger Effective Time, as applicable, except as otherwise agreed by Parent and the applicable award holder, including pursuant to any Rollover Agreement:
•
each Company Stock Option outstanding as of the date of the Merger Agreement, whether vested or unvested, or outstanding as of the Company Merger Effective Time and vested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration, less the applicable exercise price, and the number of shares of Class A Common Stock subject to such Company Stock Option; provided that any such Company Stock Option with an exercise price that is equal to or greater than the Merger Consideration will be canceled for no consideration;
•
each LTIP Unit outstanding as of the date of the Merger Agreement, except for Rollover Equity, will vest with all applicable performance conditions deemed satisfied and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration and the number of shares of Class A Common Stock into which such LTIP Unit is convertible immediately prior to the OpCo Merger Effective Time;
•
each share of Company Restricted Stock held by an employee of the Company or any of its subsidiaries that is outstanding and unvested as of immediately prior to the Company Merger Effective Time will be canceled and converted into an RS Payment Right; provided that, if the employment of a holder of an RS Payment Right is terminated following the Company Merger Effective Time but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such RS Payment Right will be accelerated to the first payroll date after the date of such termination; and
•
each share of Company Restricted Stock held by a non-employee director of the Company Board that is outstanding as of immediately prior to the Company Merger Effective Time, whether vested or
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unvested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the Merger Consideration.
With respect to Company Stock Options and LTIP Units granted to employees of the Company or any of its subsidiaries following the date of the Merger Agreement, such equity awards will generally be canceled as of Company Merger Effective Time or OpCo Merger Effective Time, as applicable, and converted into a Post-Signing Award Payment Right; provided that, if the employment of a holder of such Post-Signing Award Payment Right is terminated following the Company Merger Effective Time or OpCo Merger Effective Time, as applicable, but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such Post-Signing Award Payment Right will be accelerated to the first payroll date after the date of such termination. For more information, please see the section of this proxy statement titled “The Merger Agreement — Treatment of Company Equity Awards”.
Q: What will happen to the Company ESPP and Company Stock Plan?
A:
Prior to the Closing, the Company will take such actions as are necessary to provide that no new offering period or purchase period will commence under the Company ESPP on or after the date of the Merger Agreement and both the Company ESPP and the Company Stock Plan will terminate as of the Company Merger Effective Time.
Q: How do Radius’ directors and executive officers intend to vote?
A:
On March 1, 2023, concurrently with the execution of the Merger Agreement and as a condition to the Parent Parties’ entry into the Merger Agreement, William H. Berkman, Imperial Landscape Sponsor LLC (an affiliated entity of Michael D. Fascitelli, a director of the Company) and TOMS Acquisition II LLC (an affiliated entity of Noam Gottesman, a director of the Company), directly or indirectly through their respective affiliated persons or entities, as applicable, that, as of March 1, 2023, collectively held approximately 11% voting power of the outstanding Company Capital Stock, entered into voting and support agreements with the Parent Parties (collectively, the “Director Voting and Support Agreements”). Pursuant to the Director Voting and Support Agreements, the aforementioned directors of the Company (and their respective affiliated persons or entities, as applicable), solely in their capacity as Company Stockholders, have agreed, among other things, to vote their shares of Company Capital Stock in favor of the adoption of the Merger Agreement and the transaction contemplated thereby at the Special Meeting, with certain exceptions (as further described in the section titled “Proposal 1: Adoption of the Merger Agreement — Voting and Support Agreements”). As of the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, 19,949,034 shares of Company Capital Stock, representing approximately 17.7% voting power of the outstanding Company Capital Stock as of such date. We currently expect that all directors and executive officers of the Company, including those that are not party to the Director Voting and Support Agreements, will vote all of their respective shares of Company Capital Stock: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal. For more information regarding the Director Voting and Support Agreements and security ownership of directors and executive officers of the Company, see the sections of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Voting and Support Agreements” and “Security Ownership of Certain Beneficial Owners and Management”.
Q: Are there any other voting agreements in place with Company Stockholders?
A:
Yes, in addition to the Director Voting and Support Agreements, on March 1, 2023, concurrently with the execution of the Merger Agreement and as a condition to the Parent Parties’ entry into the Merger Agreement, Centerbridge Partners, L.P. and its affiliates that, as of March 1, 2023, collectively held approximately 10% voting power of the outstanding Company Capital Stock, entered into a voting and support agreement with the Parent Parties (the “Centerbridge Voting and Support Agreement”). Pursuant to the Centerbridge Voting and Support Agreement, Centerbridge Partners, L.P. and its affiliates have agreed, among other things, to vote their shares of Company Capital Stock in favor of
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the adoption of the Merger Agreement and the transaction contemplated thereby at the Special Meeting, with certain exceptions (as further described in the section titled “Proposal 1: Adoption of the Merger Agreement — Voting and Support Agreements”).
Q:
Do any of the Company’s directors or executive officers have any interests in the Mergers that are different from, or in addition to, my interests as a Company Stockholder?
A:
In considering the proposals to be voted on at the special meeting, you should be aware that the Company’s directors and executive officers have financial interests in the Mergers that may be different from, or in addition to, your interests as a Company Stockholder. The Company Board and the Transaction Committee were aware of and considered these interests in reaching the determination to approve the execution, delivery and performance by the Company of the Merger Agreement and recommend that Company Stockholders approve the Merger Agreement Proposal. These interests may include:
•
the treatment of Company equity awards provided for under the Merger Agreement;
•
severance and other benefits payable in the case of certain qualifying terminations under the terms of individual employment agreements;
•
the potential to receive, with respect to annual bonuses for the year in which the Closing occurs, for the portion of the performance period that elapses following the Closing, a bonus at no less than target level;
•
the potential grant of cash-based retention and/or transaction awards under programs established for the benefit of certain Company employees;
•
agreements to rollover a portion of existing equity interests in OpCo into equity interests in the Surviving LLC;
•
the continued employment of certain executive officers after Closing pursuant to new employment agreements entered into with Chord TopCo, LP;
•
eligibility for certain executive officers and employees to participate in a new management equity program and/or cash-based long-term term incentive plan following the Closing;
•
the potential for Mr. Berkman and certain of his affiliated entities to be indemnified by the Surviving LLC and/or the Surviving Corporation for certain tax liabilities under a tax protection agreement; and
•
continued indemnification and insurance coverage under the Merger Agreement, the Company’s organizational documents and indemnification agreements the Company has entered into with each of its directors and executive officers, including, with respect to the Company’s executive officers, under individual employment agreements.
These interests are described in more detail, and certain of them are quantified, in the section titled “Proposal 1: Adoption of the Merger Agreement — Interests of the Company’s Directors and Executive Officers in the Mergers”.
Q:
What vote is required to adopt the Merger Agreement Proposal and to approve the Advisory Compensation Proposal and the Adjournment Proposal?
A:
The affirmative vote of the holders of at least a majority of the outstanding shares of Company Capital Stock entitled to vote thereon at the Special Meeting, voting together as a single class, is required to adopt the Merger Agreement. The approval of the Advisory Compensation Proposal and the Adjournment Proposal each requires the affirmative vote of a majority of the votes cast on the proposal.
If a quorum is present at the Special Meeting, the failure to authorize a proxy to vote your shares of Company Capital Stock or vote at the virtual special meeting, or the failure to instruct your broker on how to vote will have the same effect as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal or the Adjournment Proposal. If a quorum is present at the Special Meeting, abstentions will have the same
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effect as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal and the Adjournment Proposal. Each “broker non-vote” will also count as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal or the Adjournment Proposal. If you properly sign your proxy card but do not mark the boxes showing how your shares should be voted on a matter, the shares represented by your properly signed proxy will be voted: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal. If a quorum is not present, the chairman of the Special Meeting or the Company Board may adjourn or postpone the Special Meeting.
The Company does not intend to call a vote on the Adjournment Proposal if the Merger Agreement Proposal is approved at the Special Meeting.
Q: What happens if the Mergers are not completed?
A:
If the Merger Agreement is not adopted by Company Stockholders or if the Mergers are not completed for any other reason, Company Stockholders will not receive any payment for their shares of Company Capital Stock. Instead, Radius will remain an independent public company, Class A Common Stock will continue to be listed and traded on the Nasdaq and registered under the Exchange Act, and Radius will continue to file periodic reports with the SEC.
Under certain circumstances, Radius will be required to pay Parent the Company Termination Fee and, under certain other circumstances, Parent will be required to pay Radius the Parent Termination Fee. For more information, please see the section of this proxy statement titled “The Merger Agreement — Termination Fees”.
Q:
Why are Company Stockholders being asked to cast an advisory (nonbinding) vote to approve the Advisory Compensation Proposal?
A:
The Exchange Act and applicable SEC rules thereunder require Radius to seek an advisory (nonbinding) vote with respect to certain payments that will or may be paid or become payable to its named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated thereby.
Q:
What will happen if Company Stockholders do not approve the Advisory Compensation Proposal at the Special Meeting?
A:
The vote on executive compensation that will or may be paid or become payable to Radius’ named executive officers that is based or otherwise relates to the Merger Agreement and the transactions contemplated thereby is a vote separate and apart from the vote to approve the Merger Agreement Proposal. Accordingly, Company Stockholders may vote to approve the Merger Agreement Proposal and vote not to approve the Advisory Compensation Proposal and vice versa. Because the Advisory Compensation Proposal is advisory in nature only, it will not be binding on the Company or the Board; as the Company is contractually obligated to pay such compensation, such compensation will or may be paid or become payable, subject only to the conditions applicable thereto, if the Mergers are consummated and regardless of the outcome of the advisory vote.
Q:
What do I need to do now?
A:
You should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including the Merger Agreement, along with all of the documents that we refer to in this proxy statement, as they contain important information about, among other things, the Mergers and how they affect you. Then sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying reply envelope, or grant your proxy electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of this proxy statement titled “The Special Meeting — Voting at the Special Meeting”), so that your shares can be voted at the Special Meeting. If you hold your shares in “street name”, please refer to the voting instruction form provided by your bank, broker or other nominee to vote your shares.
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Q:
Should I surrender my book-entry shares now?
A:
No. After the Mergers are completed, the Paying Agent will mail a check, or make a wire transfer, to each holder of book-entry shares in an amount of U.S. dollars equal to the aggregate amount of Merger Consideration, without interest and subject to any required withholding of tax, to which such holder is entitled, as described in the section of this proxy statement titled “The Merger Agreement — Exchange and Payment Procedures”.
Q:
What happens if I sell or otherwise transfer my shares of Company Capital Stock after the Record Date but before the Special Meeting?
A:
The Record Date for the Special Meeting is earlier than the date of the Special Meeting and the date the Mergers are expected to be completed. If you sell or transfer your shares of Company Capital Stock after the Record Date but before the Special Meeting, unless special arrangements (such as provision of a proxy) are made between you and the person to whom you sell or otherwise transfer your shares and each of you notifies Radius in writing of such special arrangements, you will transfer the right to receive the Merger Consideration, without interest and subject to any required withholding of tax, if the Mergers are completed, to the person to whom you sell or transfer your shares, but you will retain your right to vote those shares at the Special Meeting. Even if you sell or otherwise transfer your shares of Company Capital Stock after the Record Date, we encourage you to sign, date and return the enclosed proxy card in the accompanying reply envelope or grant your proxy electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of this proxy statement titled “The Special Meeting — Voting at the Special Meeting”).
Q:
What is the difference between holding Company Capital Stock as a stockholder of record and holding shares in “street name” as a beneficial owner?
A:
If your shares are registered directly in your name with our transfer agent, Computershare Trust Company, N.A., you are considered to be the “stockholder of record” with respect to those shares. In this case, this proxy statement and your proxy card have been sent directly to you by Radius.
If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares of Company Capital Stock held in “street name”. In that case, this proxy statement has been forwarded to you by your bank, broker or other nominee who is considered, with respect to those shares, to be the “stockholder of record”. As the beneficial owner, you have the right to direct your bank, broker or other nominee how to vote your shares by following their instructions for voting. You are also invited to attend the virtual Special Meeting.
Q:
How may I vote?
A:
If you are a stockholder of record of a Company Capital Stock (that is, if your shares of Company Capital Stock are registered in your name with Computershare Trust Company, N.A., our transfer agent), there are four ways to vote:
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Internet: Vote at www.virtualshareholdermeeting.com/RADI2023SM in advance of the Special Meeting. The Internet voting system is available 24 hours a day until 11:59 p.m. Eastern Time on June 14, 2023. Once you enter the Internet voting system, you can record and confirm (or change) your voting instructions.
•
Telephone: Use the telephone number shown on your proxy card. The telephone voting system is available 24 hours a day in the United States until 11:59 p.m. Eastern Time on June 14, 2023. Once you enter the telephone voting system, a series of prompts will tell you how to record and confirm (or change) your voting instructions.
•
Mail: Mark your voting instructions on the card and sign, date and return it in the postage-paid envelope provided. For your mailed proxy card to be counted, we must receive it before 11:59 p.m. Eastern Time on June 14, 2023.
•
At the Special Meeting: Shares held directly in your name as a stockholder of record may be voted at the Special Meeting via the Special Meeting website by using the 16-digit control number included
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in your proxy materials. Shares held in “street name” may be voted at the Special Meeting via the Special Meeting website only if you obtain a legal proxy from your bank, broker or other nominee.
If your shares of Company Capital Stock are held in “street name” by a bank, broker or other nominee, the holder of your shares will provide you with a copy of this proxy statement, a voting instruction form and directions on how to provide voting instructions. These directions may allow you to vote over the Internet or by telephone.
Whether or not you plan to attend the virtual Special Meeting, we urge you to vote in advance by proxy to ensure your vote is counted. We encourage you to submit your proxy over the Internet or by telephone, both of which are convenient, cost-effective and reliable alternatives to returning a proxy card by mail. You may still attend the Special Meeting and vote thereat if you have already voted by proxy.
Please be aware that, although there is no charge for voting your shares, if you vote electronically over the Internet by visiting the address on your proxy card or by telephone by calling the phone number on your proxy card, in each case, you may incur costs such as Internet access and telephone charges for which you will be responsible.
If your shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting instruction form provided by your bank, broker or other nominee, or, if such a service is provided by your bank, broker or other nominee, electronically over the Internet or by telephone.
Q:
What is a proxy?
A:
A proxy is a Company Stockholder’s legal designation of another person to vote shares owned by such Company Stockholder on his or her behalf. If you are a stockholder of record of Company Capital Stock, you can vote by proxy over the Internet, by telephone or by mail by following the instructions provided in the enclosed proxy card. If you hold shares beneficially in “street name”, you should follow the voting instructions provided by your bank, broker or other nominee.
Q:
If a Company Stockholder gives a proxy, how are the shares voted?
A:
Regardless of the method you choose to vote, the individuals named on the enclosed proxy card, or your proxies, will vote your shares in the way that you indicate. When completing the Internet or telephone process or the proxy card, you may specify whether your shares should be voted for or against or to abstain from voting on all, some or none of the specific items of business to come before the Special Meeting.
If you properly sign your proxy card but do not mark the boxes showing how your shares should be voted on a matter, the shares represented by your properly signed proxy will be voted: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal.
Q:
If my broker holds my shares in “street name”, will my broker vote my shares for me?
A:
No. Your bank, broker or other nominee is permitted to vote your shares on any proposal currently scheduled to be considered at the Special Meeting only if you instruct your bank, broker or other nominee how to vote. You should follow the procedures provided by your bank, broker or other nominee to vote your shares. Without instructions, your shares will not be voted on such proposals, which will have the same effect as if you voted against the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal or the Adjournment Proposal.
Q:
May I change my vote after I have mailed my signed and dated proxy card?
A:
Yes. You can change or revoke your proxy before the Special Meeting in the manner described in this proxy statement. If you are the record holder of your shares, you may change or revoke your proxy by any of the following actions:
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•
You may vote again over the Internet or by telephone as instructed on your proxy card before the closing of the voting facilities at 11:59 p.m. Eastern Time on June 14, 2023.
•
You may submit another properly signed proxy card with a later date; provided such proxy card is received no later than the close of business on June 14, 2023.
•
You may send a signed written notice that you are revoking your proxy to Radius’ Secretary at 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004; provided such written notice is received no later than the close of business on June 14, 2023.
•
You may attend the Special Meeting and vote thereat. Simply attending the virtual Special Meeting will not, by itself, revoke your proxy.
If you hold your shares of Company Capital Stock in “street name”, you should contact your bank, broker or other nominee for instructions regarding how to change your vote. You may also vote at the Special Meeting via the Special Meeting website by using the 16-digit control number included in your proxy material.
If you have any questions about how to vote or change your vote, you should contact our proxy solicitor:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
Q:
What should I do if I receive more than one set of voting materials?
A:
This means you own shares of Company Capital Stock that are registered under different names or are in more than one account. For example, you may own some shares directly as a stockholder of record and other shares through a broker, or you may own shares through more than one broker. In these situations, you will receive multiple sets of proxy materials. You must vote, sign and return all of the proxy cards or follow the instructions for any alternative voting procedure on each of the proxy cards that you receive in order to vote all of the shares you own. Each proxy card you receive comes with its own prepaid return envelope. If you submit your proxy by mail, make sure you return each proxy card in the return envelope that accompanies that proxy card.
Q:
How many copies of this proxy statement and related voting materials should I receive if I share an address with another Company Stockholder?
A:
The SEC’s proxy rules permit companies and intermediaries, such as brokers, to satisfy delivery requirements for proxy statements with respect to two or more Company Stockholders sharing the same address by delivering a single proxy statement to those Company Stockholders. This process, which is commonly referred to as “householding”, potentially provides extra convenience for Company Stockholders and cost savings for companies.
Radius and some brokers may be householding our proxy materials by delivering a single set of proxy materials to multiple Company Stockholders who request a copy and share an address, unless contrary instructions have been received from the affected Company Stockholders. If at any time you no longer wish to participate in householding and would prefer to receive a separate proxy statement, or if your household is receiving multiple copies of these documents and you wish to request that future deliveries be limited to a single copy, please notify your broker if your shares are held in a brokerage account or Radius if you are a stockholder of record by making a request to our Secretary at 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004 or by calling +1 (610) 660-4910. In addition, Radius will promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of the proxy statement.
Q:
Where can I find the voting results of the Special Meeting?
A:
The preliminary voting results for the Special Meeting are expected to be announced at the Special
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Meeting. In addition, within four business days following certification of the final voting results, Radius will file the final voting results of the Special Meeting (or, if the final voting results have not yet been certified, the preliminary results) with the SEC on a Current Report on Form 8-K.
Q:
Who will solicit and pay the cost of soliciting proxies?
A:
Radius has engaged Innisfree M&A Incorporated to assist in the solicitation of proxies for the Special Meeting. Radius expects to pay Innisfree M&A Incorporated a fee of $30,000, plus certain costs associated with additional services, as necessary, and Innisfree M&A Incorporated will be reimbursed for certain out-of-pocket fees and expenses. Radius has agreed to indemnify Innisfree M&A Incorporated against various liabilities and expenses that relate to or arise out of its solicitation of proxies (subject to certain exceptions).
Radius also may reimburse banks, brokers and other custodians, nominees and fiduciaries or their respective agents for their expenses in forwarding proxy materials to beneficial owners of Company Capital Stock. Radius directors, officers and employees also may solicit proxies by telephone, by electronic means or in person. They will not be paid any additional amounts for soliciting proxies.
Q:
When do you expect the Mergers to be completed?
A:
We currently expect to complete the Mergers in the third quarter of 2023. However, the exact timing of completion of the Mergers cannot be predicted because the Mergers are subject to the closing conditions specified in the Merger Agreement and summarized in this proxy statement, many of which are outside of our control. For more information, please see the section of this proxy statement titled “The Merger Agreement — Conditions to the Closing of the Mergers”.
Q:
How can I obtain additional information about Radius?
A:
Radius will provide copies of this proxy statement, documents incorporated by reference and its 2022 Annual Report to Stockholders, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2022, without charge to any Company Stockholder who makes a request in writing or by telephone to Radius’ Investor Relations Department at 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004 or +1 (610) 660-4910. In order for you to receive timely delivery of documents in advance of the Special Meeting, you must make such request by no later than June 1, 2023. Radius’ Annual Report and other SEC filings may also be accessed at https://sec.gov or on Radius’ investor website at https://www.radiusglobal.com/filings/sec-filings. Radius’ website address is provided as an inactive textual reference only. The information provided on or accessible through our website is not part of this proxy statement and is not incorporated in this proxy statement by this or any other reference to our website provided in this proxy statement.
Q:
Who can help answer my questions?
A:
If you have any questions concerning the Mergers, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or need help voting your shares of Company Capital Stock, please contact our proxy solicitor:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
25
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The information contained in this proxy statement, together with other statements and information publicly disseminated by Radius, contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act, that are subject to risks and uncertainties. For these statements, we claim the protections of the safe harbor for forward-looking statements contained in such Sections. These forward-looking statements include information about possible or assumed future results of our business, financial condition, liquidity, results of operations, plans and objectives. In some cases, these forward-looking statements can be identified by the use of forward-looking terminology, including the terms “believe,” “expect,” “anticipate,” “estimate,” “plan,” “continue,” “intend,” “should,” “may,” “will,” or similar expressions, their negative or other variations or comparable terminology.
Forward-looking statements are based on current beliefs, assumptions and expectations based upon our historical performance and on our current plans, estimates and expectations in light of information available to us. Any forward-looking statement speaks only as of the date on which it is made. Except as required by law, we are not obligated to, and do not intend to, publicly update or revise any forward-looking statements made herein after the date of this proxy statement, whether as a result of new information, future events or otherwise. Forward-looking statements are subject to various risks and uncertainties and assumptions relating to our operations, financial results, financial condition, business, prospects, growth strategy and liquidity and the Mergers. Actual results may differ materially from those set forth in the forward-looking statements. Given these risks and uncertainties, you should not place undue reliance on forward-looking statements as a prediction of actual results.
Certain important factors that we think could cause our actual results to differ materially from expected results are summarized below. Other factors besides those listed could also adversely affect us. We operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible for management to predict all such risks and uncertainties or how they may affect us. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
Important factors that could cause our actual results to differ materially from those indicated in these statements include, but are not limited to:
•
the Mergers may not be completed in a timely manner or at all, including the risk that any required antitrust and foreign investment approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect us or the expected benefits of the Mergers or that the approval of the Company Stockholders is not obtained;
•
the possibility that any or all of the various conditions to the consummation of the Mergers may not be satisfied or waived, including the failure (a) to receive any required antitrust and foreign investment approvals from any applicable governmental entities (or any conditions, limitations or restrictions placed on such approvals) and (b) to satisfy conditions related to (i) there being no event of default under certain of the Company’s existing debt facilities, (ii) certain waivers of change of control provisions under certain of the debt agreements of the Company and its subsidiaries being in full force and effect at the Closing, including the possibility that such waivers fail to be in full force and effect at the Closing because any two of Mr. Berkman, Mr. Bruce and Mr. Goldstein have ceased to continue in their current capacities as Chief Executive Officer, President and Chief Operating Officer of the Company, respectively, at the Closing, and (iii) the Company having a specified minimum cash balance and the Company or any of its subsidiaries having an additional specified amount of additional cash, in each case at the Closing;
•
the possibility that compliance with the minimum cash condition to the consummation of the Mergers described above may limit the growth of the Company’s business, depending on the availability to the Company of other sources of capital that are permitted under the terms of the Merger Agreement;
•
the occurrence of any event, change or other circumstance that could give rise to the termination of the Mergers, including in circumstances that would require us to pay a termination fee or other expenses;
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•
the effect of the announcement or pendency of the Mergers on our ability to retain and hire key personnel, our ability to maintain the relationships with our customers, suppliers and others with whom we do business, or our operating results and business generally;
•
risks related to diverting management’s attention from our ongoing business operations;
•
the risk that stockholder litigation in connection with the Mergers may result in significant costs of defense, indemnification and liability;
•
the extent that wireless carriers (mobile network operators, or “MNOs”) or tower companies consolidate their operations, exit the wireless communications business or share site infrastructure to a significant degree;
•
the extent that new technologies reduce demand for wireless infrastructure;
•
competition for assets;
•
whether the Tenant Leases for the wireless communication tower, antennae or other communications infrastructure located on our real property interests are renewed with similar rates or at all;
•
the extent of unexpected lease cancellations, given that most of the Tenant Leases associated with our assets may be terminated upon limited notice by the MNO or tower company and unexpected lease cancellations could materially impact cash flow from operations;
•
economic, political, cultural, regulatory and other risks to our operations, including risks associated with fluctuations in foreign currency exchange rates and local inflation rates;
•
the effect of the Electronic Communications Code in the United Kingdom, which may limit the amount of lease income we generate in the United Kingdom;
•
the extent that we continue to grow at an accelerated rate, which may prevent us from achieving profitability or positive cash flow at a company level (as determined in accordance with GAAP) for the foreseeable future, particularly given our history of net losses and negative net cash flow;
•
the fact that we have incurred a significant amount of debt and may in the future incur additional indebtedness;
•
the extent that the terms of our debt agreements limit our flexibility in operating our business;
•
the extent that unfavorable capital markets environments impair our growth strategy, which requires access to new capital;
•
the adverse effect that increased market interest rates may have on our interest costs, the value of our assets and on the growth of our business;
•
the adverse effect that perceived health risks from radio frequency energy may have on the demand for wireless communication services;
•
our ability to protect and enforce our real property interests in, or contractual rights to, the revenue streams generated by leases on our communications sites;
•
the loss, consolidation or financial instability of any of our limited number of customers;
•
our ability to pay dividends or satisfy our financial obligations;
•
whether we are required to issue additional shares of Class A Common Stock pursuant to the terms of the Series A Founder Preferred Stock or the OpCo LLC Agreement or upon the exercise of options to acquire shares of Class A Common Stock, which would dilute the interests of holders of our Class A Common Stock;
•
the possibility that securities or industry analysts do not publish or cease publishing research or reports about us, our business, or our market, or if they change their recommendations regarding our securities adversely;
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•
the possibility that we have established human capital goals and objectives that we may be unable to achieve or that are too optimistic; and
•
other factors discussed in the “Risk Factors” and the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections of Radius’ Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 1, 2023, and risks that may be described in Radius’ Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other filings by Radius with the SEC.
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THE SPECIAL MEETING
The enclosed proxy is solicited on behalf of the Company Board for use at the Special Meeting.
Date, Time and Place
The Special Meeting will be held virtually via live webcast on June 15, 2023, beginning at 8:30 a.m. Eastern Time (unless the Special Meeting is adjourned or postponed). Company Stockholders will be able to virtually attend and vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM and using the 16-digit control number included in the proxy materials.
Purpose of the Special Meeting
At the Special Meeting, we will ask Company Stockholders to vote on proposals to: (a) adopt the Merger Agreement Proposal; (b) approve, on an advisory (nonbinding) basis, the Advisory Compensation Proposal; and (c) approve the Adjournment Proposal.
Record Date; Shares Entitled to Vote; Quorum
The Company Board has set May 9, 2023 as the Record Date for the Special Meeting. If you were the owner of Company Capital Stock at the close of business on the Record Date, you are entitled to vote at the Special Meeting. Stockholders of record of our Class A Common Stock and Class B Common Stock are entitled to one vote for each share of common stock they held on the Record Date. Holders of shares of our Founder Preferred Stock are entitled to a number of votes equal to the number of shares of Class A Common Stock or Class B Common Stock, as applicable, into which each share of Founder Preferred Stock held of record by such holder could then be converted. As described more fully in the Company Charter, our Founder Preferred Stock is convertible into Class A Common Stock or Class B Common Stock, as applicable, on a one-for-one basis. Holders of any LTIP Units held in tandem with their related Class B Common Stock and/or Series B Founder Preferred Stock, as applicable, whether vested or unvested, are entitled to a number of votes equal to the number of votes that the shares of Class B Common Stock and/or Series B Founder Preferred Stock, as applicable, that are held in tandem with such LTIP Units are entitled.
At the close of business on the Record Date, there were (1) 99,714,040 shares of Class A Common Stock (which includes 1,399,192 restricted shares of Class A Common Stock that are subject to vesting conditions) issued, outstanding and entitled to vote, (2) 10,255,811 shares of Class B Common Stock issued, outstanding and entitled to vote and (3) 2,986,033 shares of Founder Preferred Stock (which includes 1,600,000 Series A Founder Preferred Stock and 1,386,033 Series B Founder Preferred Stock) issued, outstanding and entitled to vote.
A list of stockholders of record entitled to vote at the Special Meeting will be open to examination by any stockholder, for any purpose germane to the Special Meeting, during normal business hours for a period of ten days before and during the Special Meeting at our corporate offices at 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004. Stockholders may also contact Investor Relations at +1 (610) 660-4910 and arrangements will be made to review the records in person. The list of the Company Stockholders will also be available on the bottom of your screen during the Special Meeting after entering your control number included on your notice of internet availability or the voting instructions you received to enter the meeting.
The holders of at least a majority in voting power of the outstanding Company Capital Stock entitled to vote thereat must be present at the Special Meeting, either present in person or represented by proxy, for the Company to hold the Special Meeting and conduct business. This is called a “quorum”. Your shares will be counted as present at the Special Meeting for quorum purposes if you either attend our Special Meeting or properly submit your proxy prior to the Special Meeting. Shares subject to a broker non-vote (as defined below) will be counted as present for the purpose of determining the presence or absence of a quorum for the transaction of business at the Special Meeting. In the event that a quorum is not present at the Special Meeting, it is expected that the Special Meeting will be adjourned to solicit additional proxies.
To vote your shares before the Special Meeting, please follow the instructions for Internet or telephone voting in the notice of internet availability, your other proxy materials or in your voting instructions. You
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may also vote by signing and submitting your proxy card and returning it by mail, if you are the stockholder of record, or by signing the voter instruction form provided by your bank or broker and returning it by mail, if you are the beneficial owner. We encourage you to vote before the Special Meeting even if you plan to attend the Special Meeting, to ensure your shares will be represented whether or not you are able to attend the meeting.
Stockholders may vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM. To participate as a stockholder in the Special Meeting, you will need your control number. We encourage you to vote before the Special Meeting even if you plan to attend the Special Meeting, to ensure your shares will be represented whether or not you are able to attend the meeting.
Vote Required; Abstentions and Broker Non-Votes
The affirmative vote of the holders of at least a majority of the outstanding shares of Company Capital Stock entitled to vote thereon at the Special Meeting, voting together as a single class, is required to adopt the Merger Agreement. As of the Record Date, 56,477,943 votes constitute a majority of the outstanding shares of Company Capital Stock. Adoption of the Merger Agreement by Company Stockholders is a condition to the consummation of the Mergers. The approval of the Advisory Compensation Proposal and the Adjournment Proposal each requires the affirmative vote of a majority of the votes cast on the applicable proposal.
If a quorum is present at the Special Meeting, the failure to authorize a proxy to vote your shares of Company Capital Stock or vote at the virtual special meeting, or the failure to instruct your broker on how to vote will have the same effect as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal or the Adjournment Proposal. If a quorum is present at the Special Meeting, abstentions will have the same effect as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal and the Adjournment Proposal. Each “broker non-vote” will also count as a vote “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will have no effect on the Advisory Compensation Proposal or the Adjournment Proposal. A so-called “broker non-vote” results when banks, brokers and other nominees return a valid proxy voting upon a matter or matters for which the applicable rules provide discretionary authority but do not vote on a particular proposal because they do not have discretionary authority to vote on the matter and have not received specific voting instructions from the beneficial owner of such shares. Radius does not expect any broker non-votes at the Special Meeting because the rules applicable to banks, brokers and other nominees only provide brokers with discretionary authority to vote on proposals that are considered “routine”, whereas each of the proposals to be presented at the Special Meeting is considered “non-routine”. As a result, no broker will be permitted to vote your shares of Company Capital Stock at the Special Meeting without receiving instructions. If you properly sign your proxy card but do not mark the boxes showing how your shares should be voted on a matter, the shares represented by your properly signed proxy will be voted: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal. If a quorum is not present, the chairman of the Special Meeting or the Company Board may adjourn or postpone the Special Meeting.
The Company does not intend to call a vote on the Adjournment Proposal if the Merger Agreement Proposal is approved at the Special Meeting.
Stock Ownership and Interests of Certain Persons
Shares Held by Radius’ Directors and Executive Officers
As of the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, 19,949,034 shares of Company Capital Stock, representing approximately 17.7% voting power of the outstanding Company Capital Stock as of the Record Date.
We currently expect that all directors and executive officers of the Company, including those that are not party to the Director Voting and Support Agreements, will vote all of their respective shares of Company
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Capital Stock: (1) “FOR” the Merger Agreement Proposal, (2) “FOR” the Advisory Compensation Proposal and (3) “FOR” the Adjournment Proposal.
Voting at the Special Meeting
You can vote at the virtual Special Meeting, which will be held on June 15, 2023, at 8:30 a.m. Eastern Time at www.virtualshareholdermeeting.com/RADI2023SM (unless the Special Meeting is adjourned or postponed).
You may also authorize the persons named as proxies on the proxy card to vote your shares by returning the proxy card in advance by mail, over the Internet or by telephone. Radius encourages you to vote over the Internet or by phone as Radius believes they are the most cost-effective methods. We also recommend that you vote as soon as possible, even if you are planning to attend the Special Meeting, so that the vote count will not be delayed. Both the Internet and the telephone provide convenient, cost-effective and reliable alternatives to returning your proxy card by mail. If you choose to vote your shares over the Internet or by telephone, there is no need for you to submit your proxy card by mail.
Voting Before the Meeting:
To vote your shares before the Special Meeting, please follow the instructions for Internet or telephone voting in the notice of internet availability, your other proxy materials or in your voting instructions. You may also vote by signing and submitting your proxy card and returning it by mail, if you are the stockholder of record, or by signing the voter instruction form provided by your bank or broker and returning it by mail, if you are the beneficial owner. We encourage you to vote before the Special Meeting even if you plan to attend the Special Meeting, to ensure your shares will be represented whether or not you are able to attend the meeting.
Voting At the Meeting:
Stockholders may vote at the Special Meeting by visiting www.virtualshareholdermeeting.com/RADI2023SM. To participate as a stockholder in the Special Meeting, you will need your control number. We encourage you to vote before the Special Meeting even if you plan to attend the Special Meeting, to ensure your shares will be represented whether or not you are able to attend the meeting.
All shares represented by properly signed and dated proxies received by the deadline will be voted at the Special Meeting in accordance with the instructions of the Company Stockholder. Properly signed and dated proxies that do not contain voting instructions will be voted: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal. If you indicate on your proxy card that you wish to vote in favor of the Merger Agreement Proposal but do not indicate a choice on the Adjournment Proposal or the Advisory Compensation Proposal on a nonbinding advisory basis, your shares of Company Capital Stock will be voted “FOR” each such proposal. Proxy cards that are returned without a signature will not be counted as present at the Special Meeting and cannot be voted.
If your shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting form provided by your bank, broker or other nominee or attending the Special Meeting and voting using your control number, or, if you did not obtain a control number, contacting your bank, broker or other nominee to obtain a control number so that you may vote. If such a service is provided, you may vote over the Internet or telephone through your bank, broker or other nominee by following the instructions on the voting form provided by your bank, broker or other nominee. If you do not return your bank’s, broker’s or other nominee’s voting form, do not vote via the Internet or telephone through your bank, broker or other nominee, if possible, or do not attend the Special Meeting and vote thereat, it will have the same effect as if you voted “AGAINST” the Merger Agreement Proposal but, assuming a quorum is present, will not have any effect on the Advisory Compensation Proposal or the Adjournment Proposal.
Revocability of Proxies
Any proxy given by a stockholder of record may be revoked by the person giving it at any time before the final vote at the Special Meeting by submitting a written notice of revocation to Radius Global
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Infrastructure, Inc., 3 Bala Plaza East, Suite 502, Bala Cynwyd, PA 19004, or over the Internet or by phone by following the instructions included in your proxy materials. Stockholders may also revoke their proxy by entering a new vote over the Internet or by telephone, by signing and returning a new proxy card by mail (only your latest proxy submitted prior to the Special Meeting will be counted), or by attending and voting at the online Special Meeting.
If you are a beneficial owner and wish to revoke a prior instruction, you should follow the voting instructions you receive from your bank, broker or other nominee to revoke your proxy or change your vote.
Any adjournment, postponement or other delay of the Special Meeting, including for the purpose of soliciting additional proxies, will allow Company Stockholders who have already sent in their proxies to revoke them at any time prior to their use at the Special Meeting as adjourned, postponed or delayed.
Company Board’s Recommendation
The Company Board, acting upon the unanimous recommendation of the Transaction Committee, has unanimously: (a) determined that the transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and the Company Stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company Stockholders adopt the Merger Agreement.
The Company Board unanimously recommends that you vote: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal.
Solicitation of Proxies
The Company Board is soliciting your proxy, and Radius will bear the cost of soliciting proxies. Innisfree M&A Incorporated has been retained to assist with the solicitation of proxies. Radius expects to pay Innisfree M&A Incorporated a fee of $30,000, plus certain costs associated with additional services, as necessary, and Innisfree M&A Incorporated will be reimbursed for its reasonable out-of-pocket expenses for these and other advisory services in connection with the Special Meeting. Forms of proxies and proxy materials may also be distributed through brokers, custodians and other like parties to the beneficial owners of shares of Company Capital Stock, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses in accordance with SEC and Nasdaq regulations. Proxies may also be solicited in person or by telephone, facsimile, electronic mail or other electronic medium by Innisfree M&A Incorporated or, without additional compensation, by Radius or Radius’ directors, officers and employees.
Anticipated Date of Completion of the Mergers
Assuming timely satisfaction of necessary closing conditions, including the approval by Company Stockholders of the Merger Agreement Proposal, we currently anticipate that the Mergers will be consummated in the third quarter of 2023. However, the exact timing of completion of the Mergers cannot be predicted because the Mergers are subject to the closing conditions specified in the Merger Agreement and summarized in this proxy statement, many of which are outside of our control.
Appraisal Rights
If the Mergers are consummated, persons who do not wish to accept the Merger Consideration are entitled to seek appraisal of their shares of Company Capital Stock under Section 262 of the DGCL and, if all procedures described in Section 262 of the DGCL are strictly complied with, to receive payment in cash for the fair value of their shares of Company Capital Stock exclusive of any element of value arising from the accomplishment or expectation of the Mergers, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value. The “fair value” of your shares of Company Capital Stock as determined by the Delaware Court of Chancery may be more or less than, or the same as, the Merger Consideration that you are otherwise entitled to receive under the
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Merger Agreement. These rights are known as “appraisal rights”. This proxy statement serves as a notice of such appraisal rights pursuant to Section 262 of the DGCL.
Persons who exercise appraisal rights under Section 262 of the DGCL will not receive the Merger Consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. They will receive an amount determined to be the “fair value” of their shares of Company Capital Stock following petition to, and an appraisal by, the Delaware Court of Chancery. Persons considering seeking appraisal should recognize that the fair value of their shares of Company Capital Stock determined under Section 262 of the DGCL could be more than, the same as or less than the Merger Consideration they would otherwise be entitled to receive pursuant to the Merger Agreement. Strict compliance with the procedures set forth in Section 262 of the DGCL is required. Failure to comply strictly with all of the procedures set forth in Section 262 of the DGCL may result in the withdrawal, loss or waiver of appraisal rights. Consequently, and in view of the complexity of the provisions of Section 262 of the DGCL, persons wishing to exercise appraisal rights are urged to consult their legal and financial advisors before attempting to exercise such rights.
A holder of record or beneficial owner of shares of Company Capital Stock who (a) continuously holds such shares through the Company Merger Effective Time, (b) has not consented to or otherwise voted in favor of the Mergers or otherwise withdrawn, lost or waived appraisal rights, (c) strictly complies with the procedures under Section 262 of the DGCL, (d) does not thereafter withdraw his, her or its demand for appraisal of such shares and (e) in the case of a beneficial owner, a person who (i) reasonably identifies in his, her or its demand the holder of record of the shares for which the demand is made, (ii) provides documentary evidence of such beneficial owner’s beneficial ownership and a statement that such documentary evidence is a true and correct copy of what it purports to be and (iii) provides an address at which such beneficial owner consents to receive notices given by the Company and to be set forth on the Chancery List (as defined in the section of this proxy statement titled “The Merger Agreement — Appraisal Rights”), will be entitled to receive the fair value of his, her or its shares of Company Capital Stock exclusive of any element of value arising from the accomplishment or expectation of the Mergers, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be the fair value.
A copy of Section 262 of the DGCL may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. The foregoing summary is not a complete statement of the law relating to appraisal rights and is qualified in its entirety by reference to Section 262 of the DGCL and any amendments thereto after the date of this proxy statement. Any person who desires to exercise his, her or its appraisal rights should review carefully Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights. For more information, please see the section of this proxy statement titled “The Merger Agreement — Appraisal Rights”.
Delisting and Deregistration of Radius Common Stock
If the Company Merger is completed, the shares of Class A Common Stock will be delisted from the Nasdaq and deregistered under the Exchange Act, and shares of Radius common stock will no longer be publicly traded.
Other Matters
Pursuant to the DGCL and the Company Bylaws, only the matters set forth in the Notice of Special Meeting may be brought before the Special Meeting.
Householding of Special Meeting Materials
Stockholders residing in the same address who hold their stock through a bank or broker will receive only one set of proxy materials, including the Notice, in accordance with a notice sent earlier by their bank or broker. This practice of sending only one copy of proxy materials, called “householding,” saves us money in printing and distribution costs and reduces the environmental impact of our Special Meeting. This practice will continue unless instructions to the contrary are received by your bank or broker from one or more of the Company Stockholders within the household.
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If you hold your shares in “street name” and reside in a household that received only one copy of the proxy materials, you can request to receive a separate copy in the future by following the instructions sent by your bank or broker. If your household receives multiple copies of the proxy materials, you may request that only a single set of materials be sent by following the instructions sent by your bank or broker.
Questions and Additional Information
If you have any questions concerning the Mergers, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your shares of Company Capital Stock, please contact our proxy solicitor:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
501 Madison Avenue, 20th Floor
New York, NY 10022
Shareholders may call toll-free: +1 (877) 456-3513
Banks and Brokers may call collect: +1 (212) 750-5833
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PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT
This discussion of the Mergers is qualified in its entirety by reference to the Merger Agreement, which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Mergers, because it contains important information about the Mergers and how they affect you.
Parties Involved in the Mergers
Radius Global Infrastructure, Inc.
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
Radius Global Infrastructure, Inc., through its various subsidiaries, is a multinational owner and acquiror of triple net rental streams and real properties leased to wireless operators, wired operators, wireless tower companies, and other digital infrastructure operators. As of December 31, 2022, Radius had interests in the revenue streams of approximately 9,188 assets that were situated on approximately 7,024 different communications sites located throughout the United States and 20 other countries.
APW OpCo LLC
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
3 Bala Plaza East, Suite 502
Bala Cynwyd, PA 19004
APW OpCo LLC is the parent of AP WIP Investments Holdings, LP, one of the largest international aggregators of rental streams underlying wireless and other essential communications infrastructure sites through the acquisition of telecom real property interests and contractual rights. Radius directly owns a 96.6% interest in OpCo, and the remaining 3.4% interest is owned by other members of OpCo, including certain Radius executive officers.
Chord Parent, Inc.
1114 Avenue of the Americas, 45th Floor
New York, NY 10036
1114 Avenue of the Americas, 45th Floor
New York, NY 10036
Chord Parent, Inc. is a Delaware corporation that will be controlled by affiliates of EQT and PSP upon the consummation of the transactions contemplated by the Merger Agreement. Parent was formed on February 23, 2023 solely for the purpose of entering into the Merger Agreement and related agreements and consummating the transactions contemplated thereby. Parent has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the consummation of the transactions contemplated by the Merger Agreement and related agreements, the Company will be a wholly owned subsidiary of Parent.
The principal executive offices of EQT are located at 1114 Avenue of the Americas, 45th Floor New York, NY 10036 and the principal executive offices of PSP are located at 1250 René-Lévesque Boulevard West, Suite 1400, Montréal, Québec, Canada H3B 5E9.
Chord Merger Sub I, Inc.
1114 Avenue of the Americas, 45th Floor
New York, NY 10036
1114 Avenue of the Americas, 45th Floor
New York, NY 10036
Chord Merger Sub I, Inc. is a Delaware corporation and a wholly owned subsidiary of Parent and was formed on February 23, 2023, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub I has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the completion of the Company Merger, Merger Sub I will cease to exist and Radius will continue as the Surviving Corporation and a wholly owned subsidiary of Parent.
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Chord Merger Sub II, LLC
1114 Avenue of the Americas, 45th Floor
New York, NY 10036
1114 Avenue of the Americas, 45th Floor
New York, NY 10036
Chord Merger Sub II, LLC is a Delaware limited liability company and a wholly owned subsidiary of Merger Sub I and was formed on February 23, 2023, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub II has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the completion of the OpCo Merger, Merger Sub II will cease to exist and OpCo will continue as the Surviving LLC and a subsidiary of Parent and the Company.
Effects of the Mergers
The Merger Agreement provides that, on the terms and subject to the conditions of the Merger Agreement and in accordance with the DGCL, at the Company Merger Effective Time, Merger Sub I will merge with and into the Company, the separate corporate existence of Merger Sub I will cease and the Company will continue its corporate existence as the Surviving Corporation, becoming a wholly owned subsidiary of Parent.
The Merger Agreement provides that, on the terms and subject to the conditions of the Merger Agreement and in accordance with the DLLCA, at the OpCo Merger Effective Time, Merger Sub II will merge with and into OpCo, the separate existence of Merger Sub II will cease and OpCo will continue as the Surviving LLC, becoming a subsidiary of Parent and the Company.
As a result of the Company Merger, Class A Common Stock will no longer be publicly traded and will be delisted from the Nasdaq. In addition, Class A Common Stock will be deregistered under the Exchange Act, and Radius will no longer file periodic reports with the SEC. Unless you are a Rollover Holder, you will not own any equity interests in the Surviving Corporation or the Surviving LLC.
Effect on the Company If the Mergers Are Not Completed
If the Merger Agreement is not adopted by Company Stockholders, or if the Mergers are not completed for any other reason:
•
Company Stockholders and holders of OpCo Common Units will not be entitled to, nor will they receive, any payment for their respective shares of Company Capital Stock or OpCo Common Units, as applicable, pursuant to the Merger Agreement;
•
(a) Radius will remain an independent public company; (b) Class A Common Stock will continue to be listed and traded on the Nasdaq and registered under the Exchange Act; and (c) Radius will continue to file periodic reports with the SEC; and
•
under certain specified circumstances described in the section of this proxy statement titled “The Merger Agreement — Termination Fees”, Radius will be required to pay Parent a termination fee of $52,000,000 and, under certain other specified circumstances described in such section of this proxy statement, Parent will be required to pay Radius a termination fee of $103,000,000.
Merger Consideration
Company Capital Stock
The Merger Agreement provides that, at the Company Merger Effective Time:
•
each share of Class A Common Stock issued and outstanding immediately prior to the Company Merger Effective Time, except for the Appraisal Shares, Owned Company Common Stock and shares of Company Restricted Stock, will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
•
each share of Class B Common Stock issued and outstanding immediately prior to the Company Merger Effective Time, except for Owned Company Common Stock, will be canceled for no consideration;
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•
each share of Series A Founder Preferred Stock issued and outstanding immediately prior to the Company Merger Effective Time will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax; and
•
each share of Series B Founder Preferred Stock issued and outstanding immediately prior to the Company Merger Effective Time will be canceled for no consideration.
In addition, the Merger Agreement provides that, at the OpCo Merger Effective Time:
•
each OpCo Class A Common Unit issued and outstanding immediately prior to the OpCo Merger Effective Time will be converted into one unit of limited liability company interests in the Surviving LLC and thereafter represent ownership of limited liability company interests in the Surviving LLC;
•
each OpCo Class B Common Unit issued and outstanding immediately prior to the OpCo Merger Effective Time, except for Owned OpCo Class B Common Units and any Rollover Equity, will be converted into the right to receive the Merger Consideration, without interest and subject to any required withholding of tax;
•
each Series A Rollover Profits Unit outstanding as of immediately prior to the OpCo Merger Effective Time will be canceled and cease to exist and no consideration will be delivered in exchange therefor;
•
each Series B Rollover Profits Unit outstanding as of immediately prior to the OpCo Merger Effective Time will be deemed fully vested (to the extent unvested) and be treated in the same manner as other OpCo Class B Common Units; and
•
the Carry Unit will be canceled for no consideration.
If, between March 1, 2023 and the Closing, the number of outstanding shares of Company Capital Stock or equity interests of OpCo changes into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange (other than pursuant to any Rollover Agreement) of shares or similar transaction, the Merger Consideration and the cash amounts owed in respect of Company equity awards, as applicable, will be appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange (other than pursuant to any Rollover Agreement) of shares or similar transaction.
After the Mergers are completed, you will no longer have any rights as a Company Stockholder. For more information, please see the section of this proxy statement titled “The Merger Agreement — Appraisal Rights”.
Treatment of Company Equity Awards
As of Company Merger Effective Time or OpCo Merger Effective Time, as applicable, except as otherwise agreed by Parent and the applicable award holder, including pursuant to any Rollover Agreement:
•
each Company Stock Option outstanding as of the date of the Merger Agreement, whether vested or unvested, or outstanding as of the Company Merger Effective Time and vested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration, less the applicable exercise price, and the number of shares of Class A Common Stock subject to such Company Stock Option; provided that any such Company Stock Option with an exercise price that is equal to or greater than the Merger Consideration will be canceled for no consideration;
•
each LTIP Unit outstanding as of the date of the Merger Agreement, except for Rollover Equity, will vest with all applicable performance conditions deemed satisfied and be canceled in exchange for a lump-sum cash payment, without interest, equal to the product of the Merger Consideration and the number of shares of Class A Common Stock into which such LTIP Unit is convertible immediately prior to the OpCo Merger Effective Time;
•
each share of Company Restricted Stock held by an employee of the Company or any of its subsidiaries that is outstanding and unvested as of immediately prior to the Company Merger
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Effective Time will be canceled and converted into an RS Payment Right; provided that, if the employment of a holder of an RS Payment Right is terminated following the Company Merger Effective Time but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such RS Payment Right will be accelerated to the first payroll date after the date of such termination; and
•
each share of Company Restricted Stock held by a non-employee director of the Company Board that is outstanding as of immediately prior to the Company Merger Effective Time, whether vested or unvested, will vest (to the extent unvested) and be canceled in exchange for a lump-sum cash payment, without interest, equal to the Merger Consideration.
With respect to Company Stock Options and LTIP Units granted to employees of the Company or any of its subsidiaries following the date of the Merger Agreement, such equity awards will generally be canceled as of the Company Merger Effective Time or OpCo Merger Effective Time, as applicable, and converted into a Post-Signing Award Payment Right; provided that, if the employment of a holder of such Post-Signing Award Payment Right is terminated following the Company Merger Effective Time or OpCo Merger Effective Time, as applicable, but prior to the applicable vesting date by Parent without Cause (as defined in the Company Stock Plan) or due to death or Disability (as defined in the Company Stock Plan), then the vesting and payment of such Post-Signing Award Payment Right will be accelerated to the first payroll date after the date of such termination. For more information, please see the section of this proxy statement titled “The Merger Agreement — Treatment of Company Equity Awards”.
Treatment of Employee Stock Purchase Plan and Company Stock Plan
Prior to the Closing, the Company will take such actions as are necessary to provide that no new offering period or purchase period will commence under the Company ESPP on or after the date of the Merger Agreement and both the Company ESPP and the Company Stock Plan will terminate as of the Company Merger Effective Time. For more information, please see the section of this proxy statement titled “The Merger Agreement — Treatment of Company Equity Awards”.
Background of the Mergers
The following chronology summarizes the key meetings and events that led to the signing of the Merger Agreement. This chronology does not purport to catalogue every conversation of or among members of the Company Board, members of the Transaction Committee, Company management, the Company’s and the Transaction Committee’s respective financial and legal advisors, Company management’s respective legal advisors, EQT, PSP and their respective financial and legal advisors or any other person.
The Company Board has, from time to time and in consultation with the Company’s management and financial and legal advisors, evaluated a range of financial and strategic opportunities, including potential acquisitions, divestitures, joint ventures, business combinations and other similar transactions, as well as the possibility of obtaining capital investments from third parties in the public and private markets to fund the Company’s consistent need for capital to support its acquisition growth strategy. These evaluations have focused on, among other things, the business and macroeconomic environment facing digital infrastructure operators, as well as conditions and trends in the industry, and included Company Board discussions as to the advantages and risks of different strategies for short- and long-term value creation. Such discussions included whether the Company should continue to execute on its strategy as a stand-alone public company, pursue various joint ventures to fund its acquisition growth strategy, including a possible minority equity investment in the subsidiaries of the Company that own the Company’s multinational, diversified, cash-yielding portfolio of real property digital infrastructure assets (such subsidiaries, collectively, “YieldCo” and such potential investment, a “YieldCo transaction”), seek to make larger scale acquisitions or pursue a sale of the entire Company to a third party (a “WholeCo transaction”). As a result, members of the Company’s management and representatives of the Company’s financial and legal advisors have from time to time engaged in discussions with representatives of other companies, and their financial and legal advisors, that operate in, or are interested in, the digital infrastructure industry, as well as financial sponsors, including EQT and PSP, regarding such opportunities.
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In March 2021, the Company entered into a mutual non-disclosure agreement with a publicly listed company focused on digital infrastructure that we refer to as “Party A” to engage in preliminary discussions regarding a potential strategic relationship. Following execution of this mutual non-disclosure agreement, representatives of the Company and representatives of Party A from time to time discussed potential business relationships and strategic opportunities, including potential joint ventures, business combinations and other similar transactions.
In December 2021, the Company entered into non-disclosure agreements with each of EQT, a financial sponsor that we refer to as “Party B” and a financial sponsor that we refer to as “Party C”, to engage in preliminary discussions regarding potential capital investments in the Company and its subsidiaries. Following execution of these non-disclosure agreements, representatives of the Company, on the one hand, and representatives of each of EQT and Party C, on the other hand, had preliminary discussions regarding various capital investment opportunities, including a potential YieldCo transaction.
On February 9, 2022, William C. Berkman, Co-Chairman and Chief Executive Officer of the Company, Scott G. Bruce, President of the Company, and Benjamin Judson, Vice President of the Company, met with representatives of Party C in New York City for introductory purposes.
On February 11, 2022, Mr. Berkman, Mr. Bruce, Mr. Judson and Richard I. Goldstein, Chief Operating Officer of the Company, met with representatives of Party A in New York City (with Mr. Goldstein participating remotely) to have preliminary discussions regarding various capital investment opportunities, including a potential YieldCo transaction.
On February 25, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company in attendance, at which meeting, among other things, the Company Board discussed the strategic rationale of a potential YieldCo transaction to further fund the Company’s acquisition growth strategy and determined to undertake a process to pursue a YieldCo transaction. As part of this discussion, Company management discussed with the Company Board features of a potential YieldCo transaction that it would seek in any such process, including: seeking an initial contribution by a minority investor into YieldCo in the range $300 to $500 million, the proceeds of which would be used to acquire additional cash yielding digital infrastructure assets; subsequent contributions of cash on a pro-rata basis between the Company and any such minority investor to acquire additional digital infrastructure assets post-closing; and the periodic post-closing receipt by the Company of management and incentive fees and reimbursement of certain expenses for the ongoing management of YieldCo’s business and services provided to YieldCo by the subsidiaries of the Company that own and operate the Company’s business of developing and acquiring digital infrastructure assets (such subsidiaries, collectively, “DevCo”). Based on their expertise and experience in transactions in the digital infrastructure industry, the Company Board determined to engage Citi (in a lead role) and Goldman Sachs to act as financial advisors to the Company Board in connection with its exploration of strategic alternatives, including with a respect to a YieldCo transaction.
Following the February 25, 2022 meeting of the Company Board, at the direction of the Company Board, members of the Company’s management and representatives of Citi and Goldman Sachs initiated a process to solicit interest from potential investors in a YieldCo transaction. During the course of the process, 14 potential investors (including EQT, Party B, Party C and PSP) were contacted and 11 parties executed non-disclosure agreements (or, in the case of EQT, Party B and Party C, amendments to existing non-disclosure agreements). As part of the YieldCo transaction process, Company management and representatives of the Company Board’s financial and legal advisors held a number of meetings with parties evaluating a YieldCo transaction to discuss certain due diligence matters. Among these non-disclosure agreements executed in connection with the YieldCo transaction process, three contained standstill agreements, all of which expired upon the Company’s entry into the Merger Agreement.
On March 18, 2022, at the direction of the Company Board, Citi and Goldman Sachs sent a process letter to each of the potential counterparties that had expressed interest in a YieldCo transaction, along with a draft term sheet for a YieldCo transaction, requesting the submission of written proposals and markups to a draft term sheet for a YieldCo transaction that had been prepared by the Company by April 12, 2022.
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During the weeks of March 21, 2022 and March 28, 2022, Company management and representatives of the Company Board’s financial and legal advisors held management presentations with potential counterparties in a YieldCo transaction (including EQT, PSP, Party B, Party C, a financial sponsor that we refer to as “Party D” and a financial sponsor that we refer to as “Party E”).
On March 28, 2022, the Company received from Party A an indication of interest to acquire the Company in a WholeCo transaction for $17.50 per share of Company Class A Stock in cash. Party A’s indication of interest in a WholeCo transaction was unsolicited. The Company Board was notified of Party A’s indication of interest in a WholeCo transaction after receipt thereof.
On April 6, 2022, Mr. Berkman and a representative of Citi met with representatives of Party E to discuss Party E’s interest in pursuing a YieldCo transaction.
On April 11, 2022, Mr. Berkman, Mr. Bruce, Mr. Judson, Thomas C. King, a member of the Company Board, and a representative of Citi, on the one hand, and representatives of Party C, on the other hand, met for dinner in New York City to continue their preliminary discussions, including with respect to a YieldCo transaction.
On April 12, 2022, a representative of Party A contacted a representative of Citi on an unsolicited basis to indicate that Party A remained interested in pursuing a WholeCo transaction.
On April 12, 2022 and April 13, 2022, the Company received two proposals for a YieldCo transaction, one proposal for a minority investment in each of YieldCo and DevCo and one proposal for a majority investment in YieldCo. While these proposals are difficult to compare due to different characteristics and terms, the proposals received consisted of the following headline terms:
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a written proposal from Party B to invest $500 million to acquire a 24.3% stake in YieldCo, which proposal included a list of issues in the draft term sheet for a YieldCo transaction;
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a written proposal from Party D to invest $300 million to acquire a 22.1% stake in YieldCo, which proposal included a markup of the draft term sheet for a YieldCo transaction; a written proposal from PSP to invest $595 million to acquire a 25% stake in YieldCo and an amount to be determined to acquire a 25% stake in DevCo, which proposal included a list of issues for certain terms of its proposed minority investment in each of YieldCo and DevCo; and
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a written proposal from EQT to acquire a majority stake in YieldCo in the range of 75% to 80% structured as a $1,050 million purchase of equity from YieldCo and a $200 million cash contribution to YieldCo (such proposals, collectively, the “April 2022 YieldCo Proposals”).
In addition to proposing structures and investment amounts that differed from the YieldCo approach set out in the YieldCo process letter, the April 2022 YieldCo Proposals varied with respect to, among other things, the terms of the management and incentive fees for the Company and certain other terms relating to governance, transfer restrictions and post-closing acquisition of digital infrastructure assets.
In mid-April 2022, representatives of Citi, on the one hand, and representatives of EQT, on the other hand, held telephone calls to discuss a YieldCo transaction. During such calls, EQT indicated to Citi that it would be interested in pursuing a WholeCo transaction. EQT’s indication of interest in a WholeCo transaction was unsolicited.
On April 14, 2022, Party E, which had entered into a non-disclosure agreement with the Company on March 14, 2022 in connection with the YieldCo transaction process, submitted a proposal letter that indicated Party E had evaluated a YieldCo transaction, but believed it would be able to provide a significantly more compelling proposal through a WholeCo transaction. Party E did not provide a valuation at which it was proposing to engage in a WholeCo transaction, but identified key due diligence information that it would need to finalize a more concrete proposal. The Company Board was notified of Party E’s indication of interest in a WholeCo transaction after receipt thereof. Party E’s indication of interest in a WholeCo transaction was unsolicited.
On April 19, 2022, Party C submitted a written indication of interest to acquire the Company in a WholeCo transaction for $20.25 per share of Class A Common Stock in cash. Party C’s indication of
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interest in a WholeCo transaction was unsolicited. The Company Board was notified of Party C’s indication of interest in a WholeCo transaction after receipt thereof.
On April 19, 2022, members of Company management and representatives of Citi, on the one hand, and representatives of Party E, on the other hand, held a telephone call to discuss certain of the due diligence matters identified in the proposal letter received from Party E.
On April 22, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Swaine & Moore LLP, counsel to the Company Board (“Cravath”), and Citi in attendance, at which meeting the Company Board discussed the April 2022 YieldCo Proposals, as well as the unsolicited indications of interest in a WholeCo transaction received from Party A, Party C and Party E. Representatives of Citi reviewed with the Company Board its preliminary financial analyses relating to YieldCo as part of the YieldCo transaction process.
On April 24, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath in attendance, at which meeting the Company Board continued its discussion of the April 2022 YieldCo Proposals and the unsolicited indications of interest in a WholeCo transaction received from Party A, Party C and Party E and the advantages and risks of exploring a potential YieldCo transaction only, potential WholeCo transaction only or a dual-track process. Additionally, the Company Board discussed, among other things, then current macroeconomic conditions, including various future economic scenarios, and the potential impact on the Company’s incremental cost of capital required to support its acquisition growth strategy, the potential impact on the short- and long-term trading price of shares of Class A Common Stock and the potential impact on the Company achieving the benefits of greater scale over the short- and long-term (each of which could negatively affect the Company’s financial performance).
Following that discussion, the Company Board determined that it would direct its financial advisors to (a) continue discussions with Party B regarding its proposed minority investment in YieldCo and PSP regarding its proposed minority investment in each of YieldCo and DevCo and (b) solicit interest from potential counterparties in a WholeCo transaction (including EQT, in light of its proposal to acquire a majority stake in YieldCo). The Company Board declined to move forward with Party D based on a holistic review of the investment, structuring and other terms on which Party D had proposed to engage in a YieldCo transaction.
Following the April 24, 2022 meeting of the Company Board, at the direction of the Company Board, the Company and its financial advisors undertook a dual-track process to continue discussions with Party B regarding a YieldCo transaction and with PSP regarding a minority investment in each of YieldCo and DevCo and to solicit interest from potential counterparties in a WholeCo transaction. During the course of this process, 20 potential buyers were contacted (including EQT, PSP, other participants from the YieldCo transaction process and Party A, a potential strategic buyer that we refer to as “Party F” and a potential strategic buyer that we refer to as “Party G”) and ten parties either executed non-disclosure agreements or, in the case of parties that were participants in the YieldCo transaction process, had existing non-disclosure agreements with the Company (which existing agreements, in certain cases, were amended in connection with the WholeCo transaction process). Among such non-disclosure agreements, eight contained standstill agreements, all of which expired upon the Company’s entry into the Merger Agreement. Based on discussions with representatives of Citi and Goldman Sachs, and in light of what had then become a volatile macroeconomic environment with rising inflation and rising interest rates, Company management were aware that potential counterparties in a WholeCo transaction process may have difficulty obtaining acquisition financing or be unable to obtain acquisition financing on terms that would support a purchase price that would be attractive to Company Stockholders. The Company directed representatives of Citi and Goldman Sachs to advise participants in the WholeCo transaction process that the Company expected its existing indebtedness (other than the Convertible Notes) to be portable in connection with any WholeCo transaction. Additionally, as part of the WholeCo transaction process, Company management and the Company Board’s financial and legal advisors held a number of meetings with parties evaluating a WholeCo transaction to discuss certain due diligence matters.
On May 4, 2022, at PSP’s request, Mr. Berkman, Mr. Bruce, Mr. Judson and representatives of Citi and Goldman Sachs, on the one hand, met with representatives of PSP, on the other hand, in New York City to further discuss PSP’s proposed minority investment in each of YieldCo and DevCo.
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On May 6, 2022, Bloomberg reported that the Company was exploring strategic options, including a potential WholeCo transaction. Following the Bloomberg report, PSP informed the Company that it wished to pursue a WholeCo transaction and that if the Company Board determined it would not pursue a WholeCo transaction that PSP would continue to be interested in pursuing a minority investment in each of YieldCo and DevCo.
On May 9, 2022, the Company received from Party B a markup of the draft term sheet for a YieldCo transaction, which continued to propose an investment of $500 million for a 24.3% stake in YieldCo.
Beginning in mid-May 2022, in connection with the WholeCo transaction process, eight potential counterparties (including EQT, PSP, Party A, Party B, Party C, Party E, a financial sponsor that we refer to as “Party H” and a financial sponsor that we refer to as “Party I”) were provided access to a virtual data room that contained more information on the Company. Party G did not execute a non-disclosure agreement and was not granted access to such virtual data room.
On May 16, 2022, at the direction of the Company Board, Citi and Goldman Sachs sent a process letter to each of the potential counterparties that had expressed interest in a WholeCo transaction, requesting the submission of written proposals for a WholeCo transaction by June 1, 2022.
On May 20, 2022, Mr. Berkman met with representatives of Party H to discuss their interest in pursuing a WholeCo transaction.
On May 24, 2022, the Company Board, acting by unanimous written consent, authorized and created the Transaction Committee and empowered the Transaction Committee with full authority to review, consider, evaluate, negotiate, accept, reject and recommend any potential WholeCo transaction in which one or more officers, directors, stockholders or affiliates of the Company may have material interests that would be additional to and/or materially different from the interests of disinterested Company Stockholders. The Company Board determined to create the Transaction Committee at this point in recognition of the fact that, unlike a YieldCo transaction, a WholeCo transaction could involve such matters. The Company Board appointed Mr. King as chair of the Transaction Committee. The Transaction Committee retained Morris, Nichols, Arsht & Tunnell LLP (“Morris Nichols”) as its independent counsel and engaged Barclays, based on its expertise and experience in transactions in the digital infrastructure industry, to act as its financial advisor. The Transaction Committee met 19 times throughout the WholeCo transaction process.
On May 25, 2022, Party B contacted representatives of Citi to indicate that, although a YieldCo transaction was its preferred transaction structure, Party B could pursue a potential WholeCo transaction if the Company Board determined to move forward with a WholeCo transaction in lieu of a YieldCo transaction.
On June 1, 2022, the Company received three written proposals for a WholeCo transaction, one verbal proposal for a WholeCo transaction and one written proposal for a YieldCo transaction. The proposals were as follows: a written proposal for a WholeCo transaction from PSP to acquire the Company with an additional minority investor or co-control partner (if any such co-investor could be identified) for $18.12 per share of Class A Common Stock in cash; a written proposal for a WholeCo transaction from Party C to acquire the Company for $18.00 per share of Class A Common Stock in cash; a written proposal for a WholeCo transaction from EQT to acquire the Company for $15.50 per share of Class A Common Stock in cash; a verbal indication from Party F that it was interested in acquiring the Company at a valuation in the range of $18.00 to $19.50 per share of Class A Common Stock in cash; and a written proposal for a YieldCo transaction from Party A to invest $306 million to acquire a 50% stake in YieldCo. Party A did not reengage on its prior unsolicited proposal for a WholeCo transaction. Neither Party E nor Party I submitted a proposal for a WholeCo transaction.
On June 6, 2022, representatives of Citi and Goldman Sachs engaged in discussions with each of EQT, PSP and Party C regarding their written proposals for a WholeCo transaction.
On June 6, 2022, the Transaction Committee adopted guidelines to govern discussions between potential counterparties in a WholeCo transaction and Company management concerning Company management’s willingness to enter into any potential rollover arrangements and/or post-closing employment
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and compensation arrangements (the “June 2022 Guidelines”). The June 2022 Guidelines were subsequently shared with the Company Board and Company management.
On June 7, 2022, following a request from the Company to provide its proposal for a WholeCo transaction in writing, Party F informed representatives of Citi that it was no longer prepared to pursue a WholeCo transaction at a valuation in the range of $18.00 to $19.50 per share of Class A Common Stock in cash and that at that time Party F viewed the value of the Company as closer to its then current market price. The shares of Class A Common Stock closed at $15.57 per share that day.
On June 7, 2022, Party H indicated to representatives of Citi and Goldman Sachs that they intended to submit written proposals for a WholeCo transaction, but the Company ultimately did not receive any written proposal for a WholeCo transaction from Party H.
On June 9, 2022, at the direction of Company management, representatives of Citi and Goldman contacted a financial sponsor that we refer to as “Party J” and a financial sponsor that we refer to as “Party K” to assess their interest in a WholeCo transaction. Party J subsequently informed representatives of Citi and Goldman Sachs that it was not interested in pursuing a WholeCo transaction. Following two preliminary telephone calls with representatives of Citi and Goldman Sachs regarding a WholeCo transaction, Party K ceased engaging in the WholeCo transaction process.
On June 10, 2022, Party A informed representatives of Citi and Goldman Sachs that it was planning to submit a written proposal for a WholeCo transaction but ultimately Party A did not submit such a proposal.
On June 13, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Citi and Goldman Sachs in attendance, at which meeting the Company Board directed Citi and Goldman to continue discussions with the parties interested in a YieldCo transaction; invite EQT, PSP and Party C into the next phase of the WholeCo transaction process; and engage with PSP on potential co-bidders.
On June 14, 2022, representatives of Citi held separate telephone calls with representatives of each of EQT, PSP and Party C to discuss their respective written proposals for a WholeCo transaction and to invite each of EQT, PSP and Party C into the next phase of the WholeCo transaction process. Also on this date, representatives of Citi held a telephone call with representatives of Party B to discuss Party B’s potential interest in pursuing a WholeCo transaction.
Beginning on June 14, 2022 and until mid-July 2022, following indications from PSP that it would not be able to submit a proposal for a WholeCo transaction on its own, representatives of Citi, on the one hand, and representatives of PSP, on the other hand, discussed potential co-bidders and the Company ultimately consented to PSP’s request to discuss its proposed WholeCo transaction with three potential co-bidders (one of which was EQT).
Beginning in June 2022 and until October 2022, the Transaction Committee had several discussions with the holders of Series A Founder Preferred Stock and their counsel concerning the rights of such holders to an annual dividend under the terms of the Company Charter and the treatment of such Series A Founder Preferred Stock in a potential WholeCo transaction in the valuation ranges under consideration by the Transaction Committee and the Company Board during that period. The Merger Agreement provides that such holders of Series A Founder Preferred Stock are entitled to receive the same Merger Consideration upon completion of the Company Merger as holders of Class A Common Stock.
On June 29, 2022, a representative of Party E contacted representatives of Citi and Goldman to inform them that Party E would not be continuing to engage in discussions regarding a WholeCo transaction.
On July 1, 2022, in accordance with the Company Board’s direction and as approved by Company management, Citi and Goldman Sachs sent to EQT, PSP and Party C a process letter and provided such parties by email an auction draft of the merger agreement that had been prepared by Cravath.
During July, August and September 2022, to facilitate the potential portability of the Company’s existing indebtedness (other than the Convertible Notes), Company management’s representatives began discussions with certain of the Company’s lenders to obtain waivers of, or amendments to, certain change of control provisions in the Company’s existing debt agreements that would potentially be implicated by a
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WholeCo transaction (which waivers and amendments we refer to in this section of the proxy statement titled “— Background of the Mergers” as the “debt waivers and consents”). As a condition to providing debt waivers and consents, certain of the Company’s lenders insisted on retaining an ability to call an event of default under the applicable existing debt agreements if there was not continuity of Company management after the closing of any WholeCo transaction, ultimately, making it clear that such lenders would not consent to a WholeCo transaction without certain members of Company management being retained in connection with a WholeCo transaction. As a result, such lenders required the inclusion of a condition that any two of Mr. Berkman, Mr. Bruce and Mr. Goldstein must continue in their current capacities as Chief Executive Officer, President and Chief Operating Officer of the Company, respectively, at the closing of any WholeCo transaction in order for such lenders’ waivers and consents to be effective.
On July 15, 2022, representatives of Cravath and representatives of Simpson Thacher & Bartlett LLP, outside counsel to EQT (“Simpson”), held a telephone call to discuss the auction draft of the merger agreement. Also on July 15, 2022, Company management, representatives of Cravath and representatives of Schulte Roth & Zabel LLP, the Company’s debt financing counsel (“Schulte”), on the one hand, and representatives of Simpson, on the other hand, held a telephone call to discuss certain matters relating to the Company’s existing debt financing.
On July 20, 2022, at EQT’s request, the Company granted consent to EQT to discuss its proposed WholeCo transaction with two potential co-bidders.
On July 21, 2022, representatives of EQT and Party B expressed to representatives of Citi in separate discussions that that they were interested in being introduced to one another to have preliminary discussions regarding a potential partnership in connection with a WholeCo transaction. The Company subsequently permitted these discussions.
Also on July 21, 2022, representatives of Goldman Sachs delivered a relationship disclosure letter to the Company Board providing information regarding certain of Goldman Sachs’ relationships with the Company, Centerbridge Partners L.P., EQT and PSP and certain of their affiliates and portfolio companies (the “Goldman Sachs Disclosure Letter”).
On July 22, 2022, Company management and representatives of Cravath and Schulte, on the one hand, and representatives of EQT and Simpson, on the other hand, held a telephone call to discuss certain matters relating to the potential portability of the Company’s existing indebtedness (other than the Convertible Notes) and the Company’s existing capital structure.
Also on July 22, 2022, Company management and representatives of Cravath and Schulte, on the one hand, and representatives of Party C and Party C’s outside counsel, on the other hand, held a telephone call to discuss certain matters relating to the potential portability of the Company’s existing indebtedness (other than the Convertible Notes) and the Company’s existing capital structure.
On July 25, 2022, at Party C’s request, the Company consented to Party C discussing its proposal for a WholeCo transaction with a potential co-bidder.
On July 29, 2022, Party B notified representatives of Citi that it would not be pursuing a potential partnership with EQT in connection with a WholeCo transaction and, ultimately, no proposal for a WholeCo transaction was received from Party B.
On August 3, 2022, representatives of Citi provided Citi’s relationship disclosure letter to the Company Board providing information regarding certain of Citi’s relationships with the Company, EQT and PSP and certain of their affiliates and their portfolio companies (the “Citi Disclosure Letter”).
On August 4, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi, Goldman Sachs and Barclays in attendance, at which meeting Company management reviewed the June 30, 2022 – 2032 Management Forecasts with the Company Board and representatives of Citi and Goldman reviewed with the Company Board their respective preliminary financial analyses relating to the Company based on the June 30, 2022 – 2032 Management Forecasts. For more information about the June 30, 2022 – 2032 Management Forecasts, see the section of this proxy statement titled “— Certain Financial Forecasts”.
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On August 5, 2022, the Company provided to potential buyers in the virtual data room an initial draft of the confidential disclosure schedules to the auction draft of the merger agreement.
On August 5, 2022, a representative of Party A contacted a representative of Citi on an unsolicited basis and indicated that Party A remained interested in pursuing a WholeCo transaction.
On August 6, 2022, Party C’s outside counsel sent to Cravath a markup of the auction draft of the merger agreement (which markup and subsequent revised drafts thereto are referred to in this section of the proxy statement titled “— Background of the Mergers” as the “Party C Merger Agreement”), which Cravath shared with Morris Nichols. Open points in the Party C Merger Agreement at this time included, among other things: the purchase price; the specific amounts of termination fees to be payable by the parties to each other and the triggers thereof and certain other deal protection issues; certain provisions regarding conditions with respect to events of default that could arise under certain of the Company’s debt agreements as result of actions taken or not taken by the Company during the period between signing and closing and restrictions with respect to the remedies the Company could take or cause to be taken to cure such defaults (which provisions we refer to in this section of the proxy statement titled “— Background of the Mergers” as the “debt default” and “restricted remedies” provisions, respectively); and certain provisions regarding the debt waivers and consents.
On August 8, 2022, Simpson sent to Cravath a markup of the auction draft of the merger agreement (which markup and subsequent revised drafts thereto and final, executed version thereof, are referred to in this section of the proxy statement titled “— Background of the Mergers” as the “Merger Agreement”), which Cravath shared with Morris Nichols. Open points in the Merger Agreement at this time included, among other things: the purchase price; the minimum cash and regulatory conditions; the specific amounts of termination fees to be payable by the parties to each other and the triggers thereof and certain other deal protection issues; and certain provisions regarding debt defaults, restricted remedies and the debt waivers and consents.
On August 9, 2022, representatives of Citi and Goldman provided to Party A by email the auction draft of the merger agreement that had been prepared by Cravath. Thereafter, representatives of Citi encouraged Party A to submit a written proposal for a WholeCo transaction, but Party A ultimately did not submit such a proposal.
On August 11, 2022, Company management was informed that the Transaction Committee had authorized initial contact between Company management, on the one hand, and representatives of each of EQT (in respect of its proposed WholeCo transaction) and Party C (in respect of its proposed WholeCo transaction), on the other hand, subject to compliance with the June 2022 Guidelines, for purposes of limited discussions regarding certain members of Company management’s interest in remaining with the Company after the closing of a WholeCo transaction and willingness to rollover any portion of equity that such individuals held in the Company and/or OpCo in a WholeCo transaction.
On August 11, 2022, the Company provided to EQT, PSP and Party C in the virtual data room a revised draft of the confidential disclosure schedules to the auction draft of the merger agreement.
On August 16, 2022, Company management and representatives of Cravath and Morris Nichols, on the one hand, and representatives of Party C, on the other hand, held a telephone call to discuss the June 2022 Guidelines as they would relate to preliminary discussions between representatives of Party C, on the one hand, and certain members of Company management, on the other hand.
On August 17, 2022, a representative of EQT informed Citi that EQT was no longer pursuing a WholeCo transaction. EQT’s access to the virtual data room containing information about the Company that had been established in connection with the WholeCo transaction was subsequently suspended.
On August 18, 2022, Party C submitted a revised written proposal to acquire the Company for $17.00 per share of Class A Common Stock in cash, with a purchase price reduction for any amounts required to be paid to obtain the debt waivers and consents. At this time, Party C also indicated that it wished to enter into exclusivity with the Company. Also on this date, PSP submitted a letter reiterating its desire to partner with the winning bidder as a co-investor for at least 25% of the equity but did not otherwise submit a revised written proposal.
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On August 19, 2022, Party C’s outside counsel sent to Cravath a revised draft of the Party C Merger Agreement, which Cravath shared with Morris Nichols.
On August 21, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi, Goldman Sachs and Barclays in attendance. Mr. Berkman provided an update with respect to the WholeCo transaction process, highlighting developments with respect to EQT, PSP, Party C and Party A since the prior Company Board meeting. Representatives of Citi and Goldman Sachs provided a summary of Party C’s revised written proposal and the evolution thereof, noted to the Company Board that Party C had requested to proceed on an exclusive basis, and reviewed with the Company Board their respective preliminary financial analyses relating to the Company. The Company Board discussed potential next steps to take with Party C, including whether to grant exclusivity, and reexamined the relative merits and considerations of strategic alternatives other than a WholeCo transaction that the Company could pursue, including continuing as a stand-alone company and potentially pursuing a YieldCo transaction. As part of that discussion, the Company Board discussed with representatives of Cravath and Morris Nichols the Company Board’s obligations as they relate to a WholeCo transaction to obtain the best price reasonably obtainable, including, if necessary, by granting exclusivity to Party C if the Company Board believed that it would facilitate obtaining the best price. A representative of Cravath then reviewed with the Company Board key points that were open in the Party C Merger Agreement. After considering the advantages and risks of proceeding with Party C on an exclusive basis in light of the open points, the Company Board directed Citi and Goldman to engage in further price discovery with Party C. The Company Board determined that it would not grant exclusivity to Party C until Party C had increased its proposed purchase price and shown further movement on key contractual terms that were open.
On August 21, 2022, representatives of Citi contacted representatives of Party C to indicate that the Company would not grant exclusivity unless Party C increased its proposed purchase price and showed further movement on key contractual terms that were open.
On August 22, 2022, representatives of Party C contacted representatives of Citi to indicate that Party C was willing to increase its proposed purchase price to $17.75 per share of Class Common Stock in cash, with a purchase price reduction for any amounts required to be paid to obtain the debt waivers and consents, in exchange for a two-week exclusivity period.
On August 22, 2022, Cravath sent to Party C’s outside counsel comments to certain provisions of Party C’s draft of the Party C Merger Agreement that would need to be accepted for the Company Board to consider granting exclusivity to Party C, including with respect to the specific amounts of termination fees to be payable by the parties to each other under certain circumstances contemplated by the Party C Merger Agreement and certain provisions regarding debt defaults, restricted remedies and the debt waivers and consents.
On August 23, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi, Goldman Sachs and Barclays in attendance. Company management provided an update with respect to the WholeCo transaction process and the negotiations with Party C. Representatives of Citi and Goldman noted that following receipt of Party C’s revised bid of $17.00 per share of Class A Common Stock in cash, Citi had engaged in additional price discovery with Party C as directed by the Company Board and that Party C had indicated it would be willing to increase its bid to $17.75 per share of Class A Common stock in cash, with a purchase price reduction for any amounts required to be paid to obtain the debt waivers and consents, in exchange for a two-week exclusivity period. Members of the Company Board discussed whether to grant exclusivity to Party C on that basis.
Members of the Company Board continued their discussion from the prior meeting regarding the advantages and risks of continuing to operate as a stand-alone company or pursuing a potential YieldCo transaction given recently increased volatility in the then current macroeconomic environment, continued uncertainty surrounding forecasted economic conditions in the near- and long-term, and industry headwinds facing the Company (each of which could negatively affect the Company’s financial performance), particularly in light of rising inflation and interest rates and challenges that financial sponsors were generally encountering in the then current financing markets. A representative of Cravath also provided an overview
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of the status of negotiations on the definitive documentation for a transaction with Party C, noting, among other things, that while there remained certain open legal points to negotiate with Party C, such points could potentially be resolved during an exclusivity period of approximately two weeks. Following such discussion, the Company Board directed Mr. Berkman, Mr. King and the representatives of Citi and Goldman to drive Party C to further increase its proposed purchase and show additional movement on contractual terms, while granting Messrs. Berkman and King and the Company Board’s advisors the authority to negotiate an exclusivity agreement with Party C if Party C increased its proposed purchase price to not less than $17.75 per share of Class A Common Stock.
Later on August 23, 2022, representatives of Citi and Goldman held a telephone call with representatives of Party C to discuss valuation and each of Mr. Berkman and Mr. King held separate telephone calls with representatives of Party C to discuss valuation. At the conclusion of the telephone call among Mr. Berkman, Mr. King and representatives of Party C, the Company and Party C had reached a tentative agreement on a revised purchase price of $18.00 per share of Class A Common Stock in cash (without a purchase price reduction for any amounts required to be paid to obtain the debt waivers and consents) and an agreement to enter into a two-week exclusivity period provided the parties could resolve certain other key contractual terms, including the specific amounts of termination fees payable under certain circumstances contemplated by Party C and the Company and certain issues regarding debt defaults, restricted remedies and the debt waivers and consents. Following the telephone call, representatives of Cravath sent to the representatives of Party C’s counsel an initial draft of an exclusivity agreement.
Between August 23, 2022 and August 25, 2022, the Company and Party C tentatively agreed on certain terms, including the specific amounts of termination fees to be payable by the parties to each other under certain circumstances and representatives of Cravath and Party C’s counsel negotiated the terms of the exclusivity agreement, which was entered into by the Company and Party C on August 25, 2022 and provided Party C exclusivity until 11:59 p.m., Eastern Time, on September 9, 2022 (which exclusivity period was subsequently extended by the Company several times, ultimately to October 4, 2022, in light of the parties’ then ongoing good faith negotiations of the Party C Merger Agreement as more fully described below).
On August 24, 2022, the Transaction Committee and Barclays executed Barclays’ engagement letter.
On August 25, 2022, representatives of Citi held a telephone call with representatives of PSP to inform PSP that the Company had entered into an exclusivity agreement with another bidder.
On September 2, 2022, the Transaction Committee held a meeting with representatives of Morris Nichols and Barclays in attendance, at which meeting the Transaction Committee (a) authorized Company management to consent to Party C and PSP discussing PSP potentially providing equity financing in connection with Party C’s proposed WholeCo transaction and (b) consented to representatives of Party C and Party C’s outside counsel having high-level discussions with certain members of Company management and their respective outside counsel, subject to compliance with the June 2022 Guidelines, regarding potential terms of rollover arrangements and post-closing employment arrangements that such individuals would consider entering into in connection with Party C’s proposed WholeCo transaction.
On September 7, 2022, members of Company management, Ashley Leeds, member of the Company Board and Transaction Committee, and representatives of Citi, Goldman Sachs and Morris Nichols, on the one hand, and representatives of Party C met for dinner in New York City for introductory purposes. During the rest of September 2022 and October 2022, Party C and Party C’s outside counsel, on the one hand, and certain members of Company management and their respective counsel, on the other hand, discussed the structure and principal terms of their potential rollover arrangements.
On September 9, 2022, the Company and Citi executed Citi’s engagement letter, and on September 11, 2022, the Company and Goldman Sachs executed Goldman Sachs’ engagement letter.
In September 2022 and October 2022, representatives of Cravath and Party C’s outside counsel negotiated and exchanged drafts of the Party C Merger Agreement, the debt waivers and consents, voting and support agreements to be entered into by certain Company Stockholders, the equity commitment letter for Party C’s equity financing and limited guarantee supporting Party C’s obligation to pay a termination fee to the Company under certain circumstances contemplated by the Party C Merger Agreement. During this
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period, the Company continued to negotiate the debt waivers and consents with its lenders and Party C negotiated equity financing with PSP and certain other co-investors, as well as debt financing with certain other financing sources.
On September 26, 2022, EQT submitted a non-binding written proposal to acquire the Company for $16.00 per share of Class A Common Stock in cash. EQT indicated to representatives of Citi that it had committed equity financing from its affiliated funds, but that it also had a desire to explore and evaluate potential co-investors.
On September 27, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi and Goldman Sachs in attendance, to discuss the latest developments with Party C and EQT. A representative of Citi noted that the Company had entered into an exclusivity agreement with Party C on the basis of the parties’ tentative agreement on a purchase price of $18.00 per share of Class A Common Stock, which had subsequently been extended until 11:59 p.m., Eastern Time, on September 27, 2022 at that time; Company management and the Company Board’s advisors had been working with Party C to resolve open items in the Party C Merger Agreement; and Party C had indicated that its three co-investors (including PSP) had also substantially completed their review of the proposed WholeCo transaction. The representative of Citi also noted that EQT had submitted a proposal on September 26, 2022 to acquire the Company in a WholeCo transaction for $16.00 per share of Class A Common Stock in cash.
A representative of Cravath then summarized for the Company Board the open legal issues in the draft Party C Merger Agreement that was being negotiated with Party C, highlighted the extensive negotiation that had occurred with respect to provisions regarding debt defaults, restricted remedies and waiver agreements during the exclusivity period. The Company Board discussed whether the existing exclusivity arrangement with Party C should be terminated to permit the Company to explore a potential transaction with EQT. The Company Board considered that, even if the Company were to engage with EQT at this time, it would likely take EQT several additional weeks to advance due diligence and negotiation of definitive documentation to stages that were equivalent to what had been achieved with Party C to date at that time; the possibility that Party C may reduce its proposed purchase price to amount lower than $18.00 per share of Class A Common Stock in cash, even if it remained in exclusivity, in light of then current macroeconomic developments, highly volatile financial markets and uncertainty surrounding forecasted economic conditions in the near term and the long term, (each of which could negatively affect the Company’s financial performance); and that, even if the Company were not to engage directly in discussions with EQT at that time, the prospect of a competing bid could provide an avenue for accelerating the finalization of discussions with Party C and extracting additional concessions on certain key transaction points that remained open for negotiation.
After assessing the advantages and risks, the Company Board directed management to continue discussions with Party C under exclusivity until October 3, 2022 or October 4, 2022, subject to Company management’s discretion, and to try to use the prospect of termination of the exclusivity period to seek concessions from Party C on terms for the definitive documentation.
On September 29, 2022, on behalf of the Company, Cravath sent to Party C’s outside counsel a written notice of the Company’s election not to extend the exclusivity period with Party C beyond 11:59 p.m., Eastern Time, on October 4, 2022 and that termination of the exclusivity agreement would occur at such time.
On October 4, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi and Goldman Sachs in attendance. The Company Board discussed the latest developments with respect to Party C and EQT. Representatives of Citi noted that Company management had extended Party C’s exclusivity period until 11:59 p.m., Eastern Time, on October 4, 2022 and that Citi had explained to Party C that if Party C were unable to agree to terms by such time, the Company Board would need to engage with other potential bidders. A representative of Cravath noted that Party C had not yet requested an extension of exclusivity and then proceeded to summarize for the Company Board the status of the open legal points in the definitive documentation. The Company Board discussed potential avenues to put further pressure on Party C to finalize terms that did not involve an extension of the exclusivity period and whether to engage with EQT upon the termination of the exclusivity period with Party C. At the conclusion of such discussion, the
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Company Board determined that the course of action that would be in the best interest of Company Stockholders would be for the Company to finalize a transaction with Party C at $18.00 per share of Class A Common Stock in cash and to grant Company management the authority to extend exclusivity with Party C, if so requested, at its discretion if Company management believed based on ongoing negotiations that such an extension would best position the Company to reach that objective. Additionally, the Company Board granted authority to management to reach out to EQT in the event that the exclusivity period with Party C terminated.
At 11:59 p.m., Eastern Time, on October 4, 2022, the exclusivity period with Party C expired and the exclusivity agreement terminated pursuant to its terms.
On October 6, 2022, representatives of Citi contacted and reengaged with EQT to discuss its revised proposal for a WholeCo transaction and to inform EQT that the Company had been exclusive with another party and that while the Company was still engaging with that party in good faith, such engagement was no longer on an exclusive basis. A representative of EQT indicated that EQT remained interested in pursuing a WholeCo transaction and would continue to engage in discussions with the Company and its financial and legal advisors regarding a WholeCo transaction, but that EQT was no longer prepared to proceed on the basis of a purchase price for the Company of $16.00 per share of Class A Common Stock.
On October 7, 2022, Party C informed the Company and Citi that it was declining to proceed with its proposal to acquire the Company in a WholeCo transaction for $18.00 per share of Class A Common Stock in cash, in part, due to deterioration in macroeconomic conditions that had occurred since the parties reached a tentative agreement on purchase price.
On October 23, 2022, a representative of EQT contacted representatives of Citi to schedule a telephone call to discuss EQT’s continued interest in pursuing a WholeCo transaction. Also on that date, representatives of Citi contacted Party A to inquire if it were interested in reengaging in discussions regarding a potential WholeCo transaction.
On October 24, 2022, the Company received from Party C a written proposal to acquire the Company in a WholeCo transaction for $12.00 per share of Class A Common Stock in cash. Party C’s outside counsel sent to Cravath a revised draft of the Party C Merger Agreement, which Cravath shared with Morris Nichols, and revised drafts of the equity commitment letter for Party C’s equity financing and the limited guarantee.
On October 24, 2022, a representative of Citi held telephone calls with representatives of EQT to discuss potential next steps regarding EQT’s proposal for a WholeCo transaction, including with respect to due diligence and negotiation of the Merger Agreement and other transaction documents.
On October 25, 2022, at the direction of Company management (who had consulted with members of the Company Board and the Transaction Committee), a representative of Citi had a telephone call with a representative of Party C to inform Party C that the Company would not continue to engage with Party C on the basis of a WholeCo transaction for $12.00 per share of Class A Common Stock in cash.
On October 26, 2022, EQT’s access to the virtual data room containing information about the Company that had been established in connection with the WholeCo transaction process was reinstated. Also on that date, representatives of Citi held a telephone call with representatives of Party A to discuss their interest in pursuing a WholeCo transaction.
On October 28, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols and Citi in attendance, at which meeting the Company Board discussed the status of each of EQT’s and Party A’s interest in pursuing a WholeCo transaction.
On October 31, 2022, Company management and representatives of Citi and Goldman Sachs, on the one hand, and representatives of EQT, on the other hand, held a telephone call to discuss certain due diligence matters regarding a WholeCo transaction.
On October 31, 2022, Cravath sent to Simpson a revised draft of the Merger Agreement.
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On November 3, 2022, Party A informed representatives of Citi that it was declining to submit a written proposal for a WholeCo transaction and that, although Party A continued to believe in the potential strategic rationale of a combination with the Company, Party A was not prepared to move forward with a transaction given its preference to use its stock as part of the transaction consideration and the then current market price of its stock.
On November 4, 2022, the Company received from EQT a revised written proposal to acquire the Company in a WholeCo transaction for $14.25 per share of Class A Common Stock in cash. At this time, EQT indicated that, while it had the ability to fund the entire equity requirement at its proposed purchase price, it would prefer to include co-investors and may be able to increase its proposed purchase price if permitted to do so.
On November 4, 2022, a representative of PSP contacted representatives of Citi to indicate that Party C had released PSP to explore opportunities for co-investment in a WholeCo transaction with other parties.
On November 6, 2022, representatives of Citi and Goldman Sachs had a telephone call with representatives of EQT to discuss their latest proposal for a WholeCo transaction.
On November 8, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi and Goldman Sachs in attendance. The Company Board’s financial and legal advisors reviewed with the Company Board the latest proposal received from EQT, its request for exclusivity and its indication that it may be able to increase its proposed purchase price if permitted to include a co-investor. Thereafter, the Company Board discussed potential next steps to take with EQT, including with respect to if and when to permit EQT to have discussions with potential co-investors, and how such next steps could best be deployed to drive EQT to increase its proposed purchase price. Additionally, the Company Board again reviewed the relative merits and considerations of pursuing strategic alternatives other than a WholeCo transaction, including continuing as a stand-alone company, the potential purchase price at which the Company Board may agree to a WholeCo transaction given then prevailing market and macroeconomic conditions and whether in light of these various considerations it was advisable to continue the WholeCo transaction process given its potential to divert Company management’s time and attention from the day-to-day operation of the Company’s business and execution of its other strategic initiatives.
On November 8, 2022 and November 9, 2022, representatives of Citi and Goldman Sachs, at the direction of the Company Board, held telephone calls with representatives of EQT to inform them that if EQT wished to proceed with a WholeCo transaction it would need to increase its proposed purchase price and that Citi and Goldman Sachs had identified a potential co-investor for EQT.
On November 9, 2022, representatives of Citi and Goldman Sachs held a telephone call with representatives of PSP to inform them the Company was in discussions with a party other than Party C regarding a WholeCo transaction and that there may be a potential co-investment opportunity in connection therewith.
On November 9, 2022, Street Insider reported that the Company was in discussions with a financial sponsor regarding a WholeCo transaction.
On November 11, 2022, Mr. Berkman, Mr. Bruce and Mr. Judson, on the one hand, met with representatives of PSP, on the other hand, in New York City, to discuss PSP’s interest in engaging in a transaction with the Company. At such meeting, representatives of PSP indicated that PSP continued to prefer to pursue a WholeCo transaction in the capacity of a co-investor.
On November 11, 2022, representatives of Citi and Goldman Sachs held several telephone calls with representatives of EQT to discuss EQT’s proposed WholeCo transaction, indicate that EQT would need to increase its proposed purchase price above $15.00 per share of Class A Common Stock if it wished to proceed with a WholeCo transaction and to inform them that the potential co-investor Citi and Goldman Sachs had identified was PSP.
On November 14, 2022, the Company received from EQT a revised written proposal to acquire the Company in a WholeCo transaction for cash consideration in the range of $14.75 to $15.25 per share of
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Class A Common Stock in cash, along with an issues list for the Merger Agreement. Open issues included, among other things, the purchase price, the specific amount of the minimum cash condition, certain regulatory conditions, certain provisions regarding debt defaults, restricted remedies and the debt waivers and consents, certain other issues regarding regulatory efforts, deal protection, the interim operating covenants and certain of the Company’s representations and warranties.
On November 14, 2022, representatives of Citi contacted PSP and discussed potential transaction opportunities. Also on this date, representatives of a financial sponsor that we refer to as “Party L” contacted Mr. Berkman for purposes of an introductory telephone call.
Between November 15, 2022 and December 23, 2022, representatives of Cravath and Simpson held telephone calls to discuss issues in the Merger Agreement, including with respect to, among other things: the specific amount of the minimum cash condition; certain regulatory conditions; certain provisions regarding debt defaults, restricted remedies and the debt waivers and consents; and certain other issues regarding regulatory efforts, deal protection, the interim operating covenants and the Company’s representations and warranties. During this period, the representatives of Cravath and Simpson also exchanged drafts of the Merger Agreement.
On November 22, 2022, EQT informed representatives of Citi that it was prepared to acquire the Company in a WholeCo transaction for $15.00 per share of Class A Common Stock in cash.
On November 28, 2022, representatives of Citi and Cravath held telephone calls with representatives of EQT and Simpson, respectively, during which representatives of Citi and Cravath emphasized the need for EQT to proceed engaging in a WholeCo transaction on terms that the Company had negotiated with the party with whom the Company had previously engaged on an exclusive basis. Further, representatives of Cravath and Simpson continued to engage in discussions regarding certain terms of the Merger Agreement and other aspects of EQT’s proposal over the course of the following three weeks.
On November 29, 2022, the Company received from a potential strategic buyer that we refer to as “Party M” an unsolicited written indication of interest to acquire certain of the Company’s assets in a few specific geographies. Party M’s indication of interest in such asset sale transaction was unsolicited. The Company Board was notified of Party M’s indication of interest after receipt thereof. In light of the Company Board’s direction to continue engaging with EQT in connection with a WholeCo transaction, and given that Company management believed at that time that certain structural features of Party M’s proposed transaction would not constitute an attractive source of funding for the Company to execute on its strategy as a stand-alone company and would reduce the Company’s scale, the Company did not engage with Party M in connection with Party M’s proposed transaction.
On November 30, 2022, Bloomberg reported that the EQT was in talks to acquire the Company.
On December 6, 2022, Mr. Berkman and Mr. King and representatives of EQT held a telephone call to discuss EQT’s proposal for a WholeCo transaction.
Also on December 6, 2022, representatives of Cravath and representatives of Simpson and Weil, Gotshal & Manges LLP, counsel to PSP (“Weil”), held a telephone call to discuss the debt waiver and consents.
On December 7, 2022, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols and Citi in attendance, at which meeting the Company Board discussed the latest developments with EQT. A representative of Cravath reviewed with the Company Board the key open points in the Merger Agreement. The Company Board directed Company management and its financial and legal advisors to continue engaging with EQT in an effort to resolve the key open points on the Merger Agreement prior to consenting, in accordance with the June 2022 Guidelines, to EQT beginning discussions with certain members of Company management on their rollover arrangements and post-closing employment and compensation arrangements.
Following the December 7, 2022 meeting of the Company Board, representatives of Cravath identified to representatives of Simpson a discrete set of issues in the Merger Agreement, including with respect to the specific amounts of termination fees payable under certain circumstances contemplated by EQT and the
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Company and certain other issues regarding debt defaults, restricted remedies and the debt waivers and consents, and the minimum cash and regulatory conditions, and informed Simpson that such issues would need to be resolved as a preliminary matter prior to EQT having discussions with Company management regarding the terms of their rollover arrangements and post-closing employment and compensation arrangements. In the week that followed, certain of these issues were resolved, including the specific amounts of such termination fees and certain of the terms regarding debt defaults, restricted remedies and the debt waiver and consents.
On December 8, 2022, Mr. Berkman and Mr. Judson, in accordance with the June 2022 Guidelines, met with representatives of Party L in New York City to have an introductory meeting. After that meeting, representatives of Citi contacted Party L and the Company informed Party L that it was willing to enter into a non-disclosure agreement with Party L to provide additional information in connection with a potential WholeCo transaction.
On December 14, 2022, Mr. Berkman, in accordance with the June 2022 Guidelines, held a telephone call with a representative of EQT to indicate that based on the parties’ resolution of certain of the discrete issues in the Merger Agreement that had been identified by Cravath to Simpson, Company management would be requesting consent from the Transaction Committee to authorize discussions between EQT and certain members of Company management regarding such individuals’ potential rollover arrangements and potential post-closing compensation arrangements.
On December 15, 2022, the Transaction Committee consented to EQT discussing with certain members of Company management the terms of rollover arrangements and their post-closing employment and compensation arrangements.
Beginning in mid-December 2022 through February 2023, Company management and representatives of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to Mr. Berkman (“Skadden”), Davis Polk & Wardwell LLP, counsel to Company management other than Mr. Berkman (“Davis Polk”), Cravath and Morris Nichols, on the one hand, and representatives of EQT, PSP, Simpson and Weil, on the other hand, engaged, including in meetings in New York City on January 30, 2023 among Company management, on the one hand, and representatives of EQT and PSP, on the other hand, and on February 15, 2023 and February 16, 2023 among Company management, representatives of Skadden, Davis Polk, Cravath and Morris Nichols, on the one hand, and representatives of EQT and PSP and their respective outside counsels, on the other hand, in each case with certain of the foregoing representatives participating remotely, in negotiation and exchanged drafts of documentation relating to (a) the terms with respect to the rollover arrangements to be entered into with each of Mr. Berkman and/or his affiliates, Mr. Bruce, Mr. Goldstein and Mr. Breisinger, (b) a post-closing management incentive equity plan and (c) post-closing employment agreements with these individuals. For more information about these arrangements, see the sections of this proxy statement titled “Proposal 1: Adoption of the Merger Agreement — Interests of the Company’s Directors and Executive Officers in the Mergers” and “Proposal 1: Adoption of the Merger Agreement — Rollover Agreements”. In parallel, the Company directed its representatives, including debt financing counsels, to continue to engage in negotiations with certain of the Company’s lenders and such lenders’ counsel to finalize the debt waivers and consents.
On December 26, 2022, representatives of Citi sent the Company Board an updated Citi Disclosure Letter.
On January 3, 2023, the Company entered into a non-disclosure agreement with Party L to engage in discussions regarding a WholeCo transaction. In January 2023, representatives of the Company and its financial advisors, on the one hand, and representatives of Party L and its financial advisor, on the other hand, held several telephone calls to discuss certain due diligence matters regarding a potential WholeCo transaction.
On January 9, 2023, Simpson sent to Cravath a revised draft of the Merger Agreement, which Cravath shared with Morris Nichols. In this draft, the following points, among others remained open: the aggregate cap for permitted remedies; the specific amount of a minimum cash condition; the numerical threshold for measuring de minimis breaches of the Company’s capitalization representation for purposes of the closing condition testing the accuracy of the Company’s representations at closing; the end date for triggering the
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parties’ right to terminate the merger agreement if the transactions contemplated by thereby had not closed by that date; and certain other points in the provisions relating to no-solicitation of alternative transactions, changes in the Company Board’s recommendation, the interim operating covenants and representations and warranties of the Company.
On January 9, 2023, Party L was granted limited access to certain information about the Company in the virtual data room that had been established in connection with the WholeCo transaction process.
On January 20, 2023, Simpson sent to Cravath a draft form of Voting and Support Agreement to be entered into by Mr. Berkman, Centerbridge Partners L.P., Imperial Landscape Sponsor LLC and TOMS Acquisition II LLC and their respective affiliated persons or entities, as applicable, pursuant to which, among other things, such Company Stockholders would be required to vote their respective shares of Company Capital Stock in favor of the adoption of the Merger Agreement and certain other matters.
On January 20, 2023, members of Company management and representatives of Citi and Goldman Sachs, on the one hand, and representatives of Party L and Party L’s financial advisors, on the other hand, held a telephone call to discuss the potential portability of the Company’s existing indebtedness (other than the Convertible Notes) and the Company’s existing capital structure. Party L subsequently ceased engaging with the Company and its financial advisors in discussions regarding a WholeCo transaction.
On January 27, 2023, Goldman Sachs sent the Company Board an updated Goldman Sachs Disclosure Letter.
On January 29, 2023, Simpson sent to Cravath a draft form of equity commitment letter for Parent’s equity financing and a draft form of termination equity financing commitment letter in favor of Parent to fund its obligation to pay to the Company a termination fee that could become payable under certain circumstances set forth in the Merger Agreement. Simpson also sent to Cravath a revised draft of the confidential disclosure schedules to the Merger Agreement.
On February 26, 2023, representatives of Citi sent the Company Board an updated Citi Disclosure Letter.
On February 27, 2023, the principal economic terms of the rollover arrangements and post-closing employment and compensation arrangements with each of Mr. Berkman, Mr. Bruce, Mr. Goldstein and Mr. Glenn J. Breisinger, Chief Financial Officer and Treasurer of the Company, were substantially agreed.
Later on February 27, 2023, Cravath sent to Simpson revised drafts of the Merger Agreement, form of equity commitment letter, form of termination equity commitment letter and form of Voting and Support Agreements.
On February 28, 2023, Company management and representatives of Cravath, on the one hand, and representatives of Simpson and Weil, on the other hand, negotiated and exchanged drafts of the Merger Agreement, the equity commitment letters, the termination equity commitment letters and the Voting and Support Agreements.
On February 28, 2023, the Company Board held a meeting in person with representatives of Cravath, Morris Nichols, Citi, Goldman Sachs and Barclays in attendance remotely, with Mr. Berkman and certain other members of senior management of the Company recused for certain portions of such meeting. The Company Board discussed the current status of EQT’s and PSP’s proposal to acquire the Company. A representative from Cravath delivered a legal presentation outlining the terms of the latest draft Merger Agreement that had been sent to Simpson on February 27, 2023, highlighting points that remained open, including with respect to the specific amount of the minimum cash condition, the restricted remedies, the quantum of equity financing, regulatory efforts and the end date. The representative of Cravath also reviewed with the Company Board its fiduciary duties. Following the legal presentation, Company management reviewed the December 31, 2023 – 2032 Management Forecasts with the Company Board and representatives of Citi and Goldman Sachs reviewed with the Company Board their respective preliminary financial analyses relating to the Company and the contemplated transaction with EQT and PSP, based on the December 31, 2023 – 2032 Management Forecasts and then current market data. For more information about the December 31, 2023 – 2032 Management Forecasts, see the section of this proxy statement titled
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“— Certain Financial Forecasts”. Following this discussion, the Company Board instructed Company management and the Company’s advisors to continue negotiating the remaining open points with EQT, PSP and their respective advisors.
Following the Company Board meeting, the parties continued to negotiate the remaining open points in the Merger Agreement and other transaction documents, including the Voting and Support Agreements, the equity commitment letters and the termination equity commitment letters. Additionally, the Company received from certain of its lenders agreed forms of the debt waivers and consents.
On the morning of March 1, 2023, the Transaction Committee held a meeting by videoconference with representatives of Morris Nichols and Barclays in attendance. The representative of Morris Nichols summarized the key terms of the proposed transaction with EQT and PSP and of the terms of the rollover arrangements and post-closing employment and compensation arrangements agreed to by Company management. Also at this meeting, representatives of Barclays reviewed with the Transaction Committee Barclays’ financial analysis of the Merger Consideration to be received by the holders of shares of Class A Common Stock and Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Transaction Committee that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, from a financial point of view, the Merger Consideration to be received by the holders of shares of Class A Common Stock (other than the executive officers of the Company and the Excluded Stockholders) in the Mergers was fair to such holders. For more information with respect to Barclays’ opinion, see the section in this proxy statement titled “— Opinion of Barclays”. Barclays also reviewed an updated disclosure letter identifying prior or current engagements or relationships between Barclays and the Company, the Excluded Stockholders, EQT and PSP. Following discussion, the Transaction Committee unanimously adopted resolutions recommending that the Board approve the Merger Agreement and the proposed transaction with EQT and PSP.
Following the meeting of the Transaction Committee, on the morning of March 1, 2023, the Company Board held a meeting by videoconference with members of senior management of the Company and representatives of Cravath, Morris Nichols, Citi, Goldman Sachs and Barclays in attendance. Company management and the Company Board’s financial and legal advisors provided an update to the Company Board on the points in the Merger Agreement and transaction documents that had been identified as open in the last meeting of the Company Board and advised the Company Board that substantially all points in the Merger Agreement and other transaction documents had been resolved. Mr. Berkman also updated the Company Board on the status of management negotiations with EQT and PSP with respect to remaining open points in the rollover arrangements and post-closing employment and compensation arrangements with management and noted that substantially all points related thereto had been resolved. Representatives of Citi and Goldman Sachs reviewed with the Company Board their respective financial analyses relating to the Company and the Merger Considerations, based on the December 31, 2023 — 2032 Management Forecasts and then current market data.
Thereafter, representatives of Citi delivered to the Company Board its oral opinion, subsequently confirmed by delivery of a written opinion, dated as of March 1, 2023, to the effect that, as of the date of Citi’s written opinion and based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken by Citi as set forth in its written opinion, the Merger Consideration to be received by the holders of shares of Class A Common Stock was fair, from a financial point of view, to such holders. After Citi rendered its opinion, representatives of Goldman Sachs rendered its oral opinion, subsequently confirmed by delivery of a written opinion, dated as of March 1, 2023, to the effect that, as of the date of Goldman Sachs’ written opinion and based upon and subject to the factors and assumptions set forth therein, the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders. For more information with respect to Citi’s and Goldman Sachs’ respective opinions, see the sections in this proxy statement titled “— Opinion of Citi” and “— Opinion of Goldman Sachs”.
After discussion and consideration of a variety of factors, including those discussed under “— Recommendation of the Company Board and Reasons for the Mergers”, the Company Board, acting upon the recommendation of the Transaction Committee, resolved to proceed with the proposal from EQT and PSP and unanimously: (a) determined that the transactions contemplated by the Merger Agreement
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are fair to and in the best interests of the Company and its stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company’s stockholders adopt the Merger Agreement. In addition, the Company Board delegated authority to Company management to finalize the Merger Agreement and other transaction documents consistent with the foregoing resolutions.
Following the conclusion of the Company Board meeting, the parties finalized and executed and delivered the Merger Agreement and other transaction documents, including the Voting and Support Agreements, the equity commitment letters and the termination equity commitment letters, in each case, on March 1, 2023.
On March 1, 2023, at 4:01 p.m., Eastern time, after the closing of trading on Nasdaq, the Company issued a press release announcing the transaction.
Recommendation of the Company Board and Reasons for the Mergers
Recommendation of the Company Board
The Company Board and the Transaction Committee carefully reviewed and considered the terms and conditions of the Merger Agreement, including the Mergers and the other transactions contemplated thereby. The Company Board, acting upon the unanimous recommendation of the Transaction Committee, has unanimously: (a) determined that the transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and the Company Stockholders, (b) duly authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation by the Company of such transactions, (c) declared the Merger Agreement and such transactions are advisable and (d) recommended that the Company Stockholders adopt the Merger Agreement.
The Company Board unanimously recommends that you vote: (1) “FOR” the Merger Agreement Proposal; (2) “FOR” the Advisory Compensation Proposal; and (3) “FOR” the Adjournment Proposal.
Reasons for the Mergers
As described in the section titled “— Background of the Mergers” beginning on page 38 of this proxy statement, in evaluating the Mergers, the Company Board held numerous meetings, consulted with and received the advice of representatives of the Company’s outside legal counsel and financial advisors, held discussions with the Company’s senior management and considered the business, assets and liabilities, results of operations, financial performance, strategic direction and prospects of the Company. In addition, the Transaction Committee separately evaluated the Mergers, held numerous meetings and consulted with and received the advice of representatives of the Transaction Committee’s outside legal counsel and financial advisor. In making its determination, the Company Board considered a number of factors that it believed supported its decision to enter into the Merger Agreement and to recommend its adoption by Company Stockholders. In making its determination, the Transaction Committee considered a number of factors that it believed supported its conclusion that the Mergers were in the best interests of the Company and Company Stockholders, including its disinterested stockholders, and its decision to recommend that the Company Board adopt the Merger Agreement and the related transactions. These factors included, but were not limited to, the following (not necessarily in order of relative importance):
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Merger Consideration; Premium to the Trading Price of Class A Common Stock. The Company Board and the Transaction Committee considered the current and historical market prices of Class A Common Stock, including the market performance of Class A Common Stock relative to that of other participants in the Company’s industry and general market indices, and the fact that the Merger Consideration represented:
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a premium of approximately 28.0% based on the closing price per share of Class A Common Stock of $11.72 on February 24, 2023, the last full trading day prior to reports that EQT was nearing a deal to acquire the Company;
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•
a premium of approximately 13.8% based on the volume weighted average price (“VWAP”) per share of Class A Common Stock for the 30 trading-day period ended February 24, 2023 (“30-day VWAP”) of $13.18;
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a premium of approximately 30.8% based on the VWAP per share of Class A Common Stock for the 90 trading-day period ended February 24, 2023 (“90-day VWAP”) of $11.46; and
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a premium of approximately 74.6% based on the closing price per share of Class A Common Stock of $8.59 on November 8, 2022, the date Radius announced its third fiscal quarter earnings.
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Risks Relating to Remaining a Standalone Company. The Company Board and the Transaction Committee evaluated the Company’s long-term strategic plan were it to remain an independent public company, as well as the significant risks associated with executing such plan. This evaluation included the Company Board’s and the Transaction Committee’s review of the Company’s business, operations, financial condition, earnings, prospects, competitive position and the nature of the industry in which the Company competes, including the potential impact (which cannot be quantified) of those factors on the trading price of the Company’s common stock. The Company Board and the Transaction Committee ultimately determined that the certainty of value provided by the acquisition of the Company by Parent for the Merger Consideration was more favorable to Company Stockholders than the risk-adjusted value of remaining an independent public company, after accounting for the risks and uncertainties that the Company would face if it continued to operate on a standalone public company basis, as described under the section of this proxy statement titled “Cautionary Note Regarding Forward-Looking Statements”.
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Cash Consideration; Certainty of Value. The Company Board and the Transaction Committee considered the fact that the Merger Consideration is all cash, which will provide Company Stockholders immediate certainty of value and liquidity for their shares of Company Capital Stock, enables Company Stockholders to realize value that has been created by Radius and does not expose them to any future risks related to the business or macroeconomic conditions, as compared to Radius remaining independent.
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No Financing Condition and Committed Equity Financing. The Company Board and the Transaction Committee considered the fact that the Mergers are not subject to a financing condition, the Sponsors have committed to make available and provide to Parent, pursuant to equity commitment letters, the full amount in cash necessary, together with available cash on hand at the Company of not less than $210,000,000 and the Rollover Amount, to pay the amounts required to be paid in connection with, or as a result of, the consummation of the Mergers and the other transactions contemplated by the Merger Agreement. The Company Board and the Transaction Committee also considered the fact that the Sponsors have provided termination equity commitment letters in favor of Parent to fund its obligation to pay the Parent Termination Fee that may become payable to the Company under certain circumstances, as described in more detail under the section of this proxy statement titled “— Financing of the Mergers”.
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Benefits of an Acquisition by Financial Sponsors. The Company Board and the Transaction Committee considered the possibility that an infrastructure fund or other private financial sponsor might be able to realize more value from the business than a public company buyer and thereby pay a higher price to acquire the Company, including the ability to absorb near-term dilution from (a) potential equity capital required to fund growth and (b) capital expenditures in favor of longer-term growth and to fund developments without having to rely on the volatility of equity capital markets. For a detailed discussion of the Company Board’s and the Transaction Committee’s assessment of potential counterparties, please see above under the heading titled “— Background of the Mergers”.
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The Company’s Operating and Financial Condition and Prospects. The Company Board and the Transaction Committee considered the Company’s operating and financial performance and its prospects, including certain prospective forecasts for the Company prepared by the Company’s senior management, which reflect an application of various assumptions of senior management. The Company Board and the Transaction Committee considered the challenges that senior management face in creating prospective forecasts (due to the difficulties associated with predicting the amount
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of future acquisitions and the prices to be paid for such acquisitions) and the inherent uncertainty of achieving such prospective forecasts, as set forth under the heading titled “— Certain Financial Forecasts”, and that as a result, the Company’s actual financial results in future periods could differ materially from senior management’s forecasts.
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Best Alternative for Maximizing Company Stockholder Value. After a review of a range of alternatives and discussions with management and the Company’s financial and legal advisors, the Company Board and the Transaction Committee determined that the Merger Consideration is more favorable to the Company Stockholders than the potential value that might result from other options available, including, but not limited to, remaining a standalone public company or pursuing a YieldCo transaction (as defined in the section of this proxy statement titled “— Background of the Mergers”). As part of these evaluations, the Company Board and the Transaction Committee considered an assessment of the Company’s business, assets, prospects, competitive position, historical and projected financial performance, short- and long-term capital needs and the nature of the industries in which the Company competes as well as the significant risks and uncertainties associated with remaining a standalone public company.
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Dual-Track Process. The Company Board and the Transaction Committee considered its dual-track process for soliciting and responding to offers from third parties that were believed to be the most willing and able to pay the highest price for a minority investment in the case of a YieldCo transaction or the Company in the case of an acquisition of the Company, which included providing such parties with an opportunity to conduct due diligence and conduct management sessions with members of the Company’s management, as described in the section of this proxy statement titled “— Background of the Mergers”.
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Citi’s, Goldman Sachs’ and Barclays’ Fairness Opinions and Related Financial Analyses. The Company Board and the Transaction Committee, as applicable, considered:
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the financial analysis reviewed and discussed with the Company Board by representatives of Citi, and the oral opinion rendered by Citi to the Company Board, which was subsequently confirmed by delivery of a written opinion, dated March 1, 2023, to the effect that, as of the date of Citi’s written opinion and based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken by Citi as set forth in its written opinion, the Merger Consideration to be received by the holders of shares of Class A Common Stock was fair, from a financial point of view, to such holders;
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the financial analysis reviewed and discussed with the Company Board by representatives of Goldman Sachs, and the oral opinion rendered by Goldman Sachs to the Company Board, which was subsequently confirmed by delivery of a written opinion, dated March 1, 2023, to the effect that, as of the date of Goldman Sachs’ written opinion and based on and subject to the factors and assumptions set forth therein, the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders; and
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the financial analysis reviewed and discussed with the Transaction Committee by representatives of Barclays, and the oral opinion of Barclays, which was subsequently confirmed in writing, to the Transaction Committee that, as of the date of Barclays’ opinion and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, from a financial point of view, the Merger Consideration to be received by the holders of shares of Class A Common Stock (other than the executive officers of the Company and the Excluded Stockholders) in the Mergers is fair to such holders.
For more information, see the sections beginning on page 62 of this proxy statement titled “— Opinion of Citi”, “— Opinion of Goldman Sachs” and “— Opinion of Barclays”. The written opinions delivered by Citi, Goldman Sachs and Barclays are attached to this proxy statement as Annex B, as Annex C and Annex D, respectively.
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Results of Process Conducted. The Company Board and Transaction Committee considered the fact that, prior to entry into the Merger Agreement with the Parent Parties, (a) the Company Board and the Transaction Committee explored various strategic alternatives reasonably available to the
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Company, including performing a “market check” in which representatives of Citi and Goldman Sachs, at the direction of the Company Board, solicited interest from 14 potential counterparties in a YieldCo transaction and 20 potential counterparties a WholeCo transaction, (b) the Company engaged in substantial negotiations with Party C (as defined in the section of this proxy statement titled “— Background of the Mergers”) on an exclusive basis in connection with an alternative WholeCo transaction and (c) none of the potential counterparties in a WholeCo transaction indicated or sustained initially indicated interest in acquiring the Company in a WholeCo transaction for more than $15.00 per share of Class A Common Stock. The Company Board and the Transaction Committee also considered the fact that the Company Board and the Transaction Committee had engaged experienced financial and legal advisors to advise the Company Board and the Transaction Committee during the process. Based on the results of that process, each of the Company Board and the Transaction Committee believed that the price offered by EQT and PSP was the highest that was reasonably attainable, particularly in light of then prevailing market and macroeconomic conditions and the results of the process conducted. For a detailed description of the “market check” and dual-track process undertaken to solicit interest from potential counterparties in a YieldCo transaction and a WholeCo transaction, please see above under the heading titled “—Background of the Mergers”.
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Negotiation Process. The Company Board and the Transaction Committee considered its belief that, after careful review of the Company’s strategic alternatives, comprehensive public sale process and extensive negotiations, the Company obtained the highest price that the EQT and PSP were willing to pay for the Company. The Company Board and the Transaction Committee considered the fact that the terms of the Mergers were the result of robust arm’s-length negotiations conducted by the Company, with the knowledge of and at the direction of the Company Board, with the assistance of experienced financial and legal advisors. For a detailed discussion of the negotiation process, please see above under the heading titled “— Background of the Mergers”.
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Timing of Completion. The Company Board and the Transaction Committee considered the anticipated timing of the consummation of the Mergers and concluded that, despite the number of regulatory approvals required in connection with the Mergers, the Mergers could be completed in a reasonable timeframe. For more information, please see the section of this proxy statement titled “— Regulatory Approvals Required for the Mergers”. The Company Board and the Transaction Committee also considered that the potential for closing the Mergers in a reasonable timeframe could reduce the period during which Radius’ business would be subject to the potential uncertainty of closing and related disruption.
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Business Reputation of EQT and PSP. The Company Board and the Transaction Committee considered the successful track record that EQT and PSP have developed in acquiring other companies and the consolidated financial strength and industry expertise of EQT and PSP.
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Regulatory Matters. The Company Board and the Transaction Committee considered the fact that under the terms of the Merger Agreement, Parent would be required to, as promptly as reasonably practicable, take all actions necessary to (a) secure the expiration or termination of any applicable waiting period under any applicable antitrust and foreign investment laws and obtain all consents under any antitrust and foreign investment laws that may be required by any governmental antitrust and foreign investment authority with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by the Merger Agreement, (b) resolve objections as may be asserted by any governmental antitrust and foreign investment authority or other person with respect to the transactions contemplated by the Merger Agreement and to avoid or eliminate each and every impediment under any antitrust and foreign investment laws that may be asserted by any governmental antitrust and foreign investment authority, in each case subject to certain limitations, including Burdensome Conditions (as defined in the section of this proxy statement titled “The Merger Agreement — Efforts to Consummate the Mergers”). For a detailed description of regulatory matters, please see below under the section of this proxy statement titled “The Merger Agreement — Efforts to Consummate the Mergers”.
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Terms of the Merger Agreement. The Company Board and the Transaction Committee considered the terms and conditions of the Merger Agreement, including:
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that the Company may, subject to certain conditions, furnish, pursuant to entry into an Acceptable Confidentiality Agreement (as defined in the section of this proxy statement titled
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“The Merger Agreement — No Solicitation”), confidential information with respect to the Company to third parties making an unsolicited proposal and participate in discussions or negotiations with such third parties regarding unsolicited proposals that are made prior to obtaining the Company Stockholder Approval, subject to certain limitations. For a detailed description of regulatory matters, please see below under the section of this proxy statement titled “The Merger Agreement — No Solicitation”;
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the provision allowing the Company Board to change its recommendation that the Company Stockholders adopt the Merger Agreement prior to obtaining the Company Stockholder Approval in specified circumstances relating to a Superior Proposal (as defined in the section of this proxy statement titled “The Merger Agreement — No Solicitation) or Intervening Event (as defined in the section of this proxy statement titled “The Merger Agreement — Change in Company Board Recommendation), subject to Parent’s right to terminate the Merger Agreement and receive payment of the Company Termination Fee;
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the provision allowing the Company Board to terminate the Merger Agreement to enter into a Superior Proposal, subject to certain conditions (including payment of the Company Termination Fee and certain rights of Parent to propose in writing a binding offer to effect revisions to the terms of the Merger Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal);
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the Company Board’s and the Transaction Committee’s belief, after discussion with their respective advisors, that the Company Termination Fee would not preclude a Superior Proposal from being made; and
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a Parent Termination Fee that may be owed by Parent to the Company in connection with the termination of the Merger Agreement under certain circumstances described in the section of this proxy statement titled “The Merger Agreement — Termination Fees — Termination Fee Payable by Parent”.
For a detailed discussion of the Merger Agreement, please see below under the section titled “The Merger Agreement”.
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Appraisal Rights. The Company Board and the Transaction Committee considered the availability of appraisal rights under the DGCL to Company Stockholders who comply with all of the required procedures for perfecting appraisal rights under the DGCL in connection with the Company Merger, including the fact that such stockholders will have the right to demand appraisal and payment of the fair value of their shares as determined by the Delaware Court of Chancery. For a detailed discussion of appraisal rights, please see below under the section titled “— Appraisal Rights”.
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Specific Performance. Radius’ ability, under circumstances specified in the Merger Agreement, to seek specific performance of the Parent Parties’ obligation to cause the Mergers to occur, to cause the equity financing to be funded and to prevent other breaches of the Merger Agreement.
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Opportunity for Company Stockholders to Vote. The Company Board and the Transaction Committee considered the fact that the Mergers would be subject to the Company Stockholders Approval, and Company Stockholders would be free to evaluate the Mergers and vote for or against the adoption of the Merger Agreement at the Special Meeting.
In the course of its deliberations, the Company Board and the Transaction Committee also considered a variety of risks and other countervailing factors related to the Merger Agreement and the Mergers, including the following material factors:
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No Participation in Radius’ Future Growth or Earnings. The Company Board and the Transaction Committee considered that if the Mergers are consummated, Company Stockholders will receive the Merger Consideration in cash and will no longer have the opportunity to participate in any future earnings or growth of the Company or benefit from any potential future appreciation in the value of Company Capital Stock, including any value that could be achieved if the Company engages in future strategic or other transactions.
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Closing Conditions. The Company Board and the Transaction Committee considered the fact that there can be no assurance that all conditions to the parties’ obligations to consummate the Mergers will
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be satisfied even if the Merger Agreement is adopted by Company Stockholders, including the conditions related to (a) there being no event of default under certain of the Company’s existing debt facilities, (b) certain waivers of change of control provisions under certain of the debt agreements of the Company and its subsidiaries being in full force and effect at the Closing, including the possibility that such waivers fail to be in full force and effect at the Closing because any two of Mr. Berkman, Mr. Bruce and Mr. Goldstein have ceased to continue in their current capacities as Chief Executive Officer, President and Chief Operating Officer of the Company, respectively, at the Closing, and (c) the Company having a specified minimum cash balance and the Company or any of its subsidiaries having an additional specified amount of additional cash, in each case at the Closing. The Company Board and the Transaction Committee also considered the possibility that compliance with the minimum cash condition to the parties’ obligation to consummate the Mergers described above may limit the growth of the Company's business, depending on the availability to the Company of other sources of capital that are permitted under the terms of the Merger Agreement;
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Disruption of the Company’s Business. The Company Board and the Transaction Committee considered the effect of a public announcement of the Mergers on the Company’s operations, stock price and employees and its ability to attract and retain management, sales and other personnel while the Mergers are pending and the potential adverse effects on the financial and other results of the Company as a result of that disruption.
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Non-Solicitation Covenant. The Company Board and the Transaction Committee considered that the Merger Agreement imposes restrictions on the Company’s solicitation of acquisition proposals from third parties and requires the Company to provide Parent with an opportunity to propose in writing a binding offer to effect revisions to the terms of the Merger Agreement prior to the Company being able to terminate the Merger Agreement and accept a Superior Proposal, although the Company Board and the Transaction Committee believes this would not preclude another potential acquiror from submitting a proposal to acquire the Company.
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Company Termination Fee. The Company Board and the Transaction Committee considered the fact that the Company must pay Parent the Company Termination Fee if the Merger Agreement is terminated under certain circumstances, including to accept a Superior Proposal, and that the amount of the Company Termination Fee is reasonable, would not likely deter competing bids and would not likely be required to be paid unless the Company entered into a more favorable transaction.
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Interim Operating Covenants. The Company Board and the Transaction Committee considered that the Merger Agreement imposes restrictions on the conduct of the Company’s business prior to the consummation of the Mergers, requiring the Company to, subject to exceptions specified in the Merger Agreement, use, and cause its subsidiaries to use, commercially reasonable efforts to (a) carry on its business in all material respects in the ordinary course of business consistent with past practices, (b) preserve its and their business organizations substantially intact and preserve existing relations with key customers and other persons with whom the Company or its subsidiaries have significant business relationships and (c) keep available the services of their current officers and other key employees, which may delay or prevent the Company from undertaking business opportunities that may arise pending completion of the Mergers (as more fully described under the section titled “The Merger Agreement — Covenants Regarding Conduct of Business by the Company Pending the Company Merger Effective Time”).
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Risk Associated with Failure to Consummate the Mergers. The Company Board and the Transaction Committee considered the possibility that the Mergers might not be consummated, including as a result of the potential failure of closing conditions related to (a) there being no event of default under certain of the Company’s existing debt facilities, (b) certain waivers of change of control provisions under certain of the debt agreements of the Company and its subsidiaries being in full force and effect at the Closing, including the possibility that such waivers fail to be in full force and effect at the Closing because any two of Mr. Berkman, Mr. Bruce and Mr. Goldstein have ceased to continue in their current capacities as Chief Executive Officer, President and Chief Operating Officer of the Company, respectively, at the Closing, and (c) the Company having a specified minimum cash balance and the Company or any of its subsidiaries having an additional specified amount of additional cash, in each case at the Closing, and the fact that if the Mergers are not consummated:
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the trading price of Class A Common Stock may significantly decline to the extent that the market price of the Class A Common Stock reflects positive market assumptions that the Mergers will be completed, and the related benefits will be realized;
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Radius or Parent will be required to pay a termination fee, including that we will be required to pay Parent the Company Termination Fee if the Merger Agreement is terminated under certain circumstances, and Parent will be required to pay us the Parent Termination Fee if the Merger Agreement is terminated under certain circumstances;
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Radius will have incurred significant transaction costs, such as legal, accounting and financial advisory costs that are not contingent on closing;
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Radius will have diverted management time and resources towards the Mergers, for which we will have received little or no benefit if completion of the Mergers does not occur; and
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Radius may be subject to reputational harm including relationships with customers and business partners due to the adverse perception of any failure to successfully complete the Mergers.
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Regulatory Matters. The Company Board and the Transaction Committee considered the antitrust and foreign investment approvals that would be required to consummate the Mergers, the prospects for receiving such approvals and the possibility that the Mergers might not be consummated (i) by the End Date (as defined in the section of this proxy statement titled “The Merger Agreement — Termination of the Merger Agreement”), (ii) by the expiration of certain waivers of change of control provisions under certain of the debt agreements of the Company and its subsidiaries that must be in full force and effect at the Closing or (iii) at all due to a failure to obtain such antitrust and foreign investment approvals.
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Potential Future Stock Price. The possibility that, although the Mergers provide the Company Stockholders the opportunity to realize a premium to the price at which Class A Common Stock traded prior to the Company Board’s approval of the Merger Agreement, the price of Class A Common Stock might have increased in the future to a price greater than the Merger Consideration.
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Timing Risks. The Company Board and the Transaction Committee considered the amount of time it could take to complete the Mergers, including that completion of the Mergers depends on factors outside of Radius’ or Parent’s control (including the Company Stockholder Approval and certain governmental antitrust and foreign investment authorities) and the risk that the pendency of the Mergers for an extended period of time following the announcement of the execution of the Merger Agreement could divert Radius management’s attention and have an adverse impact on Radius, including its customer, distributor, supplier and other business relationships.
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Litigation Risk. The Company Board and the Transaction Committee considered the risk of litigation in connection with the execution of the Merger Agreement and the consummation of the Mergers.
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Tax Treatment. The Company Board and the Transaction Committee considered that the receipt of the Merger Consideration payable in the Mergers will generally be taxable to Company Stockholders for U.S. federal income tax purposes. The Company Board and the Transaction Committee believed that this was mitigated by the fact that the entire consideration payable in the Mergers would be cash, providing adequate cash for the payment of any taxes due.
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Other Risks. The Company Board and the Transaction Committee considered various other risks associated with the Mergers and the business of the Company, as more fully described in the section of this proxy statement titled “Cautionary Note Regarding Forward-Looking Statements”.
The Company Board and the Transaction Committee concluded that the uncertainties, risks and potentially negative factors relevant to the Mergers were outweighed by the potential benefits of the Mergers.
In addition to considering the factors described above, the Company Board and the Transaction Committee also considered that some of Radius’ directors and executive officers have financial interests that
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may be different from, or in addition to, the interests of Company Stockholders generally. The Company Board and the Transaction Committee were aware of these interests and considered them at the time it approved the Merger Agreement and made its recommendation to Company Stockholders. For more information, please see the section of this proxy statement titled “— Interests of Radius’ Directors and Executive Officers in the Mergers”. The foregoing discussion of the information and factors considered by the Company Board and the Transaction Committee is not intended to be exhaustive, but includes the material positive and negative factors considered by the Company Board and the Transaction Committee. In view of the wide variety of factors considered in connection with its evaluation of the Merger Agreement and the transactions contemplated thereby, including the Mergers, and the complexity of these matters, neither the Company Board nor the Transaction Committee found it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching its determination and recommendation. In addition, individual directors may have given different weights to different factors. Neither the Company Board nor the Transaction Committee undertook to make any specific determination as to whether, or to what extent, any factor, or any particular aspect of any factor, supported or did not support its ultimate determination. The Company Board and the Transaction Committee based their respective recommendations on the totality of the information presented, including the factors described above. This explanation of the reasoning of the Company Board and the Transaction Committee and certain information presented in this section is forward-looking in nature and should be read in light of the factors set forth in the section of this proxy statement titled “Cautionary Note Regarding Forward-Looking Statements”.
Opinion of Citi
Radius retained Citi as its lead financial advisor in connection with a possible transaction involving Radius. In connection with Citi’s engagement, the Company Board requested that Citi evaluate the fairness, from a financial point of view, to the holders of shares of Class A Common Stock of the Merger Consideration to be received by such holders pursuant to the terms and subject to the conditions set forth in the Merger Agreement. On March 1, 2023, at a meeting of the Company Board held to evaluate the proposed Mergers, Citi rendered to the Company Board an oral opinion, subsequently confirmed by delivery of a written opinion, dated March 1, 2023, to the effect that, as of the date of Citi’s written opinion and based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken by Citi as set forth in its written opinion, the Merger Consideration to be received by the holders of shares of Class A Common Stock was fair, from a financial point of view, to such holders.
The full text of Citi’s written opinion, dated March 1, 2023, to the Board, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken by Citi in rendering its opinion, is attached to this proxy statement as Annex B and is incorporated herein by reference in its entirety. The summary of Citi’s opinion set forth below is qualified in its entirety by reference to the full text of Citi’s opinion. Citi’s opinion was rendered to the Board (in its capacity as such) in connection with its evaluation of the proposed Mergers and was limited to the fairness, from a financial point of view, as of the date of Citi’s written opinion, to holders of shares of Class A Common Stock of the Merger Consideration to be received by such holders pursuant to the terms and subject to the conditions set forth in the Merger Agreement. Citi’s opinion did not address any other terms, aspects or implications of the proposed Mergers. Citi’s opinion did not address the underlying business decision of Radius to effect or enter into the proposed Mergers, the relative merits of the proposed Mergers as compared to any alternative business strategies that might have existed for Radius or the effect of any other transaction in which Radius might have engaged or considered. Citi’s opinion is not intended to be and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act on any matters relating to the proposed Mergers or otherwise.
In arriving at its opinion, Citi:
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reviewed a draft, dated March 1, 2023, of the Merger Agreement;
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held discussions with certain senior officers, directors and other representatives and advisors of Radius concerning the business, operations and prospects of Radius;
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examined certain publicly available business and financial information relating to Radius as well as the December 31, 2023 – 2032 Management Forecasts and other information and data relating to Radius that were provided to or discussed with Citi by the management of Radius;
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reviewed the financial terms of the Mergers as set forth in the Merger Agreement in relation to, among other things: current and historical market prices and trading volumes of Class A Common Stock, the historical and projected earnings and other operating data of Radius, and the capitalization and financial condition of Radius;
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at the direction of Radius, approached and held discussions with, third parties to solicit indications of interest in the possible acquisition of Radius; and
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conducted such other analyses and examinations and considered such other information and financial, economic and market criteria as Citi deemed appropriate in arriving at its opinion.
The issuance of Citi’s opinion was authorized by Citi’s fairness opinion committee.
In rendering its opinion, Citi assumed and relied, without independent verification, upon the accuracy and completeness of all financial and other information and data publicly available or provided to or otherwise reviewed by or discussed with Citi and upon the assurances of the management of Radius that they were not aware of any relevant information that was omitted or that remained undisclosed to Citi. With respect to financial forecasts and other information and data relating to Radius provided to or otherwise reviewed by or discussed with Citi, Citi was advised by the management of Radius, and Citi assumed, with the consent of the Company Board, that such financial forecasts and other information and data were reasonably prepared in good faith on bases reflecting the best currently available estimates and judgments of the management of Radius as to, and are a reasonable basis upon which to evaluate, the future financial performance of Radius and the other matters covered thereby. Citi expressed no view or opinion as to any financial forecasts and other information or data (or underlying assumptions on which any such financial forecasts and other information or data are based) provided to or otherwise reviewed by or discussed with Citi.
Citi had assumed, with the consent of the Company Board, that the Mergers will be consummated in accordance with the terms, conditions and agreements set forth in the Merger Agreement, without waiver, modification or amendment of any material term, condition or agreement and that, in the course of obtaining the necessary governmental, regulatory or third party approvals, consents and releases for the Mergers, no delay, limitation, restriction or condition will be imposed that would have an adverse effect on Radius or the Mergers or that otherwise would be meaningful to Citi’s opinion or analysis. Representatives of Radius had advised Citi, and Citi further assumed, with the consent of the Company Board, that the final terms of the Merger Agreement would not vary materially from those set forth in the draft reviewed by Citi. Citi had not made or been provided with an independent evaluation or appraisal of the assets or liabilities (contingent, accrued, derivative, off-balance sheet or otherwise) of Radius or any other entity nor had Citi made any physical inspection of the properties or assets of Radius or any other entity. Citi had not evaluated the solvency or fair value of Radius or any other entity under any state, federal or other laws relating to bankruptcy, insolvency or similar matters. Citi also did not express any view or opinion as to the prices at which the Class A Common Stock or any other securities would trade or otherwise be transferable at any time, including following the announcement of the Mergers. Citi did not express any view or opinion with respect to accounting, tax, regulatory, legal or similar matters, including, without limitation, as to tax or other consequences of the Mergers or otherwise or changes in, or the impact of, accounting standards or tax and other laws, regulations and governmental and legislative policies affecting Radius or the Mergers (including the contemplated benefits thereof), and Citi relied, with the consent of the Company Board, upon the assessments of representatives of Radius as to such matters.
Citi’s opinion addresses only the fairness, from a financial point of view and as of the date of its written opinion, of the Merger Consideration to be received by holders of shares of Class A Common Stock pursuant to the Merger Agreement, without regard to individual circumstances of holders of the Class A Common Stock that may distinguish such holders or the securities of Radius held by such holders, and did not address any other terms, aspects or implications of the Mergers, including, without limitation, the form or structure of the Mergers and the Rollover Agreements and any consideration payable in connection therewith, the allocation of the aggregate consideration payable pursuant to the Merger Agreement among the holders of, or the treatment or cancellation for no consideration of, the various types of shares of capital stock of Radius or any of its subsidiaries, or any terms, aspects or implications of any agreement, arrangement or understanding to be entered into or amended or modified in connection with or
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contemplated by the Mergers, or the amount thereof relative to the Merger Consideration or otherwise. Citi expressed no view as to, and Citi’s opinion did not address, the underlying business decision of Radius to effect or enter into the Mergers, the relative merits of the Mergers as compared to any alternative business strategies that might exist for Radius or the effect of any other transaction in which Radius might engage or consider. Citi also expressed no view as to, and Citi’s opinion did not address, the fairness (financial or otherwise) of the amount or nature or any other aspect of any compensation or other consideration to any officers, directors or employees of any parties to the Mergers, or any class of such persons, relative to the Merger Consideration or otherwise. Citi’s opinion is necessarily based upon information available to Citi, and financial, stock market and other conditions and circumstances existing and disclosed to Citi, as of the date of its written opinion. Although subsequent developments may affect Citi’s opinion, Citi has no obligation to update, revise or reaffirm its opinion. As the Company Board was aware, the credit, financial and stock markets, the industries in which Radius operates and the securities of Radius have experienced and may continue to experience volatility and Citi expressed no view or opinion as to any potential effects of such volatility on Radius or the Mergers (including the contemplated benefits thereof).
In preparing its opinion, Citi performed a variety of financial and comparative analyses, including those described below. The preparation of a financial opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion is not readily susceptible to partial analysis or summary description. Citi arrived at its opinion based on the results of all analyses undertaken by it and factors assessed as a whole, and it did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis for purposes of its opinion.
In its analyses, Citi considered industry performance, general business, economic, market and financial conditions and other matters existing as of the date of its written opinion, many of which are beyond the control of Radius. No company, business or transaction reviewed is identical or directly comparable to Radius or the Mergers and an evaluation of these analyses is not entirely mathematical; rather, the analyses involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the public trading, acquisition or other values of the companies, businesses or transactions reviewed or the results of any particular analysis.
The estimates used by Citi for purposes of its analyses and the valuation ranges resulting from any particular analysis were not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by such analyses. In addition, analyses relating to the value of businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold or acquired. Accordingly, the estimates used in, and the results derived from, Citi’s analyses are inherently subject to substantial uncertainty.
Citi was not requested to, and it did not, recommend or determine the specific consideration payable in the proposed Mergers. The type and amount of consideration payable in the proposed Mergers were determined through negotiations Radius, on the one hand, and Parent and its affiliates, on the other hand, and Radius’ decision to enter into the Merger Agreement was solely that of the Board. Citi’s opinion was only one of many factors considered by the Company Board in its evaluation of the proposed Mergers and should not be viewed as determinative of the views of the Company Board or the management of Radius with respect to the proposed Mergers, the Merger Consideration or any other aspect of the transactions contemplated by the Merger Agreement.
Financial Analyses
The following is a summary of the material financial analyses prepared for and reviewed with the Company Board in connection with Citi’s opinion, dated March 1, 2023, to the Company Board. The summary set forth below does not purport to be a complete description of the financial analyses performed by, and underlying the opinion of, Citi, nor does the order of the financial analyses described represent the relative importance or weight given to those financial analyses by Citi. Certain financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses, the tables must be read together with the text of each summary as the tables alone do not constitute a complete description of the financial analyses. Considering the data in the tables below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the financial
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analyses, could create a misleading or incomplete view of such financial analyses. Future results may be different from those described and such differences may be material. Approximate implied equity value per share reference ranges derived from the financial analyses described below and other per share ranges presented for reference purposes only were rounded to the nearest $0.05, except for data relating to intraday trading share prices. Except as otherwise noted, financial data utilized for Radius in the financial analyses described below were based on the December 31, 2023 – 2032 Management Forecasts as indicated and other information and data relating to Radius provided to or discussed with Citi and approved for Citi’s use by the Company Board and as further summarized in the section titled “— Certain Financial Forecasts” beginning on page 81.
Discounted Cash Flow Analysis
Citi conducted a discounted cash flow analysis of Radius using the December 31, 2023 – 2032 Management Forecasts (as defined in the section of this proxy statement titled “— Certain Financial Forecasts”), in which Citi calculated the estimated present value (as of December 31, 2022) of the standalone unlevered after-tax free cash flows that Radius was forecasted to generate during calendar year 2023 through calendar year 2032 as reflected in the December 31, 2023 – 2032 Management Forecasts. For purposes of this analysis, stock-based compensation was treated as a cash expense. Based on its professional judgment and experience, Citi calculated terminal values for Radius at the end of the projection period by applying a selected range of perpetuity growth rates of 3.00% to 3.50% (which Citi derived by utilizing its professional judgment and experience and taking into consideration, among other factors, Radius management’s views regarding future growth, as well as long-term growth expectations for the industry and trend in the overall economy generally) to the standalone unlevered after-tax fee cash flows of Radius in the terminal year as reflected in the December 31, 2023 – 2032 Management Forecasts. Citi then discounted to present value (as of December 31, 2022) the standalone unlevered after-tax free cash flows and implied estimated terminal value using discount rates ranging from 7.90% to 8.60%, derived from a calculation of the weighted average cost of capital of Radius, which Citi performed utilizing the capital asset pricing model with inputs that Citi determined were relevant based on publicly available data and Citi’s professional judgment. This analysis indicated an implied firm value reference range for Radius of approximately $1,913 million to $3,072 million. From this range of implied firm values, Citi subtracted Radius’ net debt as of December 31, 2022 (calculated as debt less cash) and the present value as of December 31, 2022 of Series A Founder Preferred Stock implied annual dividends calculated by Citi based on theoretical future prices for the shares of Class A Common Stock calculated by Citi at a cap rate of 5.9% as described in the section below titled “— Present Value of Future Share Price Analysis” and discounted to present value using discount rates ranging from 7.90% to 8.60%, and divided the results by the number of shares of Class A Common Stock outstanding on a fully diluted basis as of February 28, 2023, calculated using the treasury stock method, based on information provided by Radius management. This analysis indicated the following approximate implied per share equity value reference range for Radius, as compared to the Merger Consideration:
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Implied per Share Equity Value Reference Range
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| |
Merger Consideration
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| |||
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$5.95 – $15.95
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| | | $ | 15.00 | | |
Present Value of Future Share Price Analysis
Citi performed an analysis to derive a range of illustrative present values per share of Class A Common Stock as of December 31, 2022 based on theoretical future prices calculated by Citi for the shares of Class A Common Stock based on the December 31, 2023 – 2032 Management Forecasts. Citi derived a range of theoretical future values per share for the shares of Class A Common Stock as of December 31 of each of calendar years 2023 through 2032 by applying illustrative cap rates of 5.2% to 5.9% to estimates of the adjusted annualized in-place rent of Radius for each of calendar years 2023 through 2032, as reflected in the December 31, 2023 – 2032 Management Forecasts. The cap rates used by Citi were derived based on Citi’s professional judgment and experience and reflected the 25th and 75th percentiles, respectively, of Radius’ trading cap rates on annualized in-place rent during the twelve-month period ended February 24, 2023. By applying a discount rate of 12.1%, reflecting a mid-point estimate of Radius’ cost of equity, Citi discounted to present value as of December 31, 2022 the theoretical future values per share it derived for Radius as described above, to yield a range of illustrative present values per share of Class A Common Stock. This
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analysis indicated the following approximate implied per share equity value reference range for Radius, as compared to the Merger Consideration.
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Implied per Share Equity Value Reference Range
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| |
Merger Consideration
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| |||
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$9.90 – $15.95
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| | | $ | 15.00 | | |
Other Information
Citi observed certain other information with respect to Radius that was not considered part of its financial analyses with respect to its opinion, but was noted for reference purposes only, including the following:
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Historical Stock Trading. Citi reviewed historical intraday trading prices of Class A Common Stock for the 52-week period ended February 24, 2023, which indicated an overall low to high intraday trading share price range of $7.97 to $16.52 per share over the period.
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Precedent Premiums Paid. Citi reviewed publicly available data relating to premiums paid in all-cash U.S. publicly traded company transactions announced between 2012 and 2022, with transaction values between $1 billion and $10 billion (excluding transactions involving financial institutions as targets). Citi applied a selected range of one-day premiums of 20% to 40% (derived, based on Citi’s professional judgment and experience, from the premiums paid in such transactions over the target companies involved in such transactions unaffected closing stock price) to (a) to the closing price of Class A Common Stock of $11.72 per share on February 24, 2023, and (ii) to the closing price of Class A Common Stock of $8.59 per share on November 8, 2022, the closing price prior to Radius’ third fiscal quarter earnings announcement date, imply approximate per share equity value reference ranges for Radius of (i) $14.05 to $16.40 per share, and (ii) $10.30 to $12.05 per share, respectively.
Miscellaneous
Radius has agreed to pay Citi for its services in connection with the Mergers an aggregate fee of approximately $21,300,000, of which $2,500,000 was payable upon delivery of Citi’s opinion to the Company Board and the remainder is payable contingent upon consummation of the Mergers. The Company may pay Citi an additional discretionary fee of up to $5,000,000 based upon the Company Board’s assessment of Citi’s work in connection with its engagement. In addition, Radius agreed to reimburse Citi for Citi’s reasonable expenses, including fees and expenses of counsel, and to indemnify Citi and related parties against certain liabilities, including liabilities under federal securities laws, arising out of Citi’s engagement.
As the Company Board was aware, although Citi and its affiliates have not provided investment banking, commercial banking, capital raising or other similar financial services to Radius and/or its affiliates unrelated to the proposed Mergers during the past two years for which Citi and its affiliates received compensation, Citi and its affiliates in the future may provide such services to Radius and/or its affiliates, for which services Citi and its affiliates would expect to receive compensation. As the Company Board was also aware, Citi and its affiliates in the past have provided, and currently are providing, investment banking, commercial banking and other similar financial services to EQT and its affiliates and controlled portfolio companies, for which services Citi and its affiliates have received and expect to receive compensation, including, without limitation, during the two-year period prior to the date of Citi’s written opinion, having acted as financial advisor in connection with certain merger and acquisition transactions involving controlled portfolio companies of EQT, as bookrunner or arranger in connection with certain bond issuances, loans and credit facilities of controlled portfolio companies of EQT, as ratings advisor to a controlled portfolio company of EQT and as lender in connection with certain loans of EQT. For the services described above for EQT and its affiliates, Citi and its affiliates received, during the two-year period prior to the date of Citi’s written opinion, aggregate fees of approximately $12 million, as determined by Citi based on its books and records. As the Company Board was also aware, Citi and its affiliates in the past have provided, and currently are providing, investment banking, commercial banking and other similar financial services to PSP and its affiliates and controlled portfolio companies, for which services Citi and its affiliates have received and expect to receive compensation, including, without limitation, during the two-year period prior to the date of Citi’s written opinion, having acted as joint lead arranger and bookrunner in connection with certain bond offerings and as lender in connection with certain loans of PSP and its affiliates. For the services described
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above for PSP and its affiliates, Citi and its affiliates received, during the two-year period prior to the date of Citi’s written opinion, aggregate fees of approximately $1 million, as determined by Citi based on its books and records. In the ordinary course of Citi’s business, Citi and its affiliates may actively trade or hold the securities of Radius for Citi’s own account or for the account of Citi’s customers and, accordingly, may at any time hold a long or short position in such securities. In addition, Citi and its affiliates (including Citigroup Inc. and its affiliates) may maintain relationships with Radius and its affiliates.
Radius selected Citi to act as lead financial advisor in connection with the proposed Mergers based on Citi’s reputation, experience and familiarity with Radius and its businesses. Citi is an internationally recognized investment banking firm that regularly engages in the valuation of businesses and their securities in connection with mergers and acquisitions, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes.
Opinion of Goldman Sachs
Goldman Sachs rendered its opinion to the Company Board that, as of March 1, 2023 and based upon and subject to the factors and assumptions set forth therein, the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders.
The full text of the written opinion of Goldman Sachs, dated March 1, 2023, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C. Goldman Sachs provided advisory services and its opinion for the information and assistance of the Company Board in connection with its consideration of the Mergers. Goldman Sachs’ opinion is not a recommendation as to how any holder of Class A Common Stock should vote with respect to the Mergers, or any other matter.
In connection with rendering the opinion described above and performing its related financial analyses, Goldman Sachs reviewed, among other things:
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the Merger Agreement;
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annual reports to stockholders and Annual Reports on Form 10-K of Radius for the two years ended December 31, 2021;
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Radius’ Registration Statement on Form S-4, including the prospectus contained therein dated October 5, 2020 relating, among other things, to the issuance of Class A Common Stock;
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certain interim reports to stockholders and Quarterly Reports on Form 10-Q of Radius and certain other communications from Radius to Company Stockholders;
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certain publicly available research analyst reports for Radius; and
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certain internal financial analyses and forecasts for the Company prepared by its management, as approved by the Company for Goldman Sachs’ use, including the December 31, 2023 – 2032 Management Forecasts, (referenced in this section of the proxy statement titled “— Opinion of Goldman Sachs” as the “Forecasts”). See the section titled “— Certain Financial Forecasts”.
Goldman Sachs also held discussions with members of the senior management of Radius regarding their assessment of the past and current business operations, financial condition and future prospects of Radius; reviewed the reported price and trading activity for the shares of Class A Common Stock; compared certain financial and stock market information for Radius with similar information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the technology, media and telecommunications (“TMT”) industry; and performed such other studies and analyses, and considered such other factors, as it deemed appropriate.
For purposes of rendering this opinion, Goldman Sachs, with the consent of the Company Board, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by, it, without assuming any responsibility for independent verification thereof. In that regard, Goldman Sachs assumed with the consent
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of the Company Board that the Forecasts were reasonably prepared on a basis reflecting the best then currently available estimates and judgments of the management of Radius. Goldman Sachs did not make an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance sheet assets and liabilities) of Radius or any of its subsidiaries and it was not furnished with any such evaluation or appraisal. Goldman Sachs assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Mergers will be obtained without any adverse effect on the expected benefits of the Mergers in any way meaningful to its analysis. Goldman Sachs also assumed that the Mergers will be consummated on the terms set forth in the Merger Agreement, without the waiver or modification of any term or condition the effect of which would be in any way meaningful to its analysis.
Goldman Sachs’ opinion does not address the underlying business decision of Radius to engage in the Mergers or the relative merits of the Mergers as compared to any strategic alternatives that may be available to Radius; nor does it address any legal, regulatory, tax or accounting matters. Goldman Sachs’ opinion addresses only the fairness from a financial point of view to the holders (other than Parent and its affiliates) of Class A Common Stock, as of the date of the opinion, of the Merger Consideration to be paid to such holders pursuant to the Merger Agreement. Goldman Sachs’ opinion does not express any view on, and does not address, any other term or aspect of the Merger Agreement or the Mergers or any term or aspect of any other agreement or instrument contemplated by the Merger Agreement or entered into or amended in connection with the Mergers, including the allocation of the aggregate consideration payable pursuant to the Merger Agreement among the holders of, or the cancellation for no consideration of, the various types of shares of Company Capital Stock or any of its subsidiaries, the OpCo Merger and the Rollover Agreements and any consideration payable in connection therewith, and the fairness of the Mergers to, or any consideration received in connection therewith by, the holders of any other class of securities (including the Series A Founder Preferred Stock, the OpCo Common Units and the Rollover Equity), creditors, or other constituencies of Radius; nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of Radius, or class of such persons in connection with the Mergers, whether relative to the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement or otherwise. Goldman Sachs’ opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Goldman Sachs as of, the date of its opinion and Goldman Sachs assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances, developments or events occurring after the date of its opinion. In addition, Goldman Sachs does not express any opinion as to the prices at which shares of Class A Common Stock will trade at any time, as to the potential effects of volatility in the credit, financial and stock markets on Radius, Parent or the Mergers, or as to the impact of the Mergers on the solvency or viability of Radius or Parent or the ability of Radius or Parent to pay their respective obligations when they come due. Goldman Sachs’ advisory services and opinion were provided for the information and assistance of the Company Board in connection with its consideration of the Mergers and such opinion does not constitute a recommendation as to how any holder of shares of Class A Common Stock should vote or act with respect to such Mergers or any other matter. Goldman Sachs’ opinion was approved by a fairness committee of Goldman Sachs.
Summary of Material Financial Analysis
The following is a summary of the material financial analyses delivered by Goldman Sachs to the Company Board in connection with rendering the opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Goldman Sachs, nor does the order of analyses described represent relative importance or weight given to those analyses by Goldman Sachs. Some of the summaries of the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Goldman Sachs’ financial analyses. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before February 28, 2023, the last trading day before the public announcement of the Mergers, and is not necessarily indicative of current market conditions.
Illustrative Discounted Cash Flow Analysis
Using the Forecasts, Goldman Sachs performed an illustrative discounted cash flow analysis on Radius to derive a range of illustrative present values per share of Class A Common Stock. For purposes of this
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analysis, stock-based compensation was treated as a cash expense. Using the mid-year convention for discounting cash flows and discount rates ranging from 7.9% to 8.7%, reflecting estimates of Radius’ weighted average cost of capital, Goldman Sachs discounted to present value, as of December 31, 2022, (i) estimates of unlevered free cash flow for Radius for the calendar years 2023 through 2032, as reflected in the Forecasts and (ii) a range of illustrative terminal values for Radius, which were calculated by applying terminal growth rates ranging from 3.0% to 3.5%, to a terminal year estimate of the unlevered free cash flow to be generated by Radius, as reflected in the Forecasts (which analysis implied annualized in-place rent yield of 5.5% to 7.1%). The range of perpetuity growth rates was estimated by Goldman Sachs utilizing its professional judgment and experience, taking into account the Forecasts and market expectations regarding long-term real growth of gross domestic product and inflation. Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model (“CAPM”), which requires certain company-specific inputs, including Radius’ target capital structure weightings, the cost of long-term debt, after-tax yield on permanent excess cash, if any, future applicable marginal cash tax rate and a beta for Radius, as well as certain financial metrics for the United States financial markets generally.
Goldman Sachs derived a range of illustrative enterprise values for Radius by adding the ranges of present values it derived above. Goldman Sachs then derived a range of illustrative equity values for Radius by subtracting from the range of illustrative enterprise values it derived for Radius (i) the net debt of Radius as of December 31, 2022 (calculated as debt less cash), as provided and approved for Goldman Sachs’ use by the management of Radius and (ii) the present value, as of December 31, 2022, of Series A Founder Preferred Stock implied annual dividends calculated by Goldman Sachs based on theoretical future prices for the shares of Class A Common Stock which were calculated by Goldman Sachs using the Forecasts by applying a constant cap rate of 6.2% to estimates of Radius’ annualized in-place rent for each of calendar years 2022 through 2026 using the methodology described in the section below titled “—Illustrative Present Value of Future Share Price Analysis” and using discount rates ranging from 7.9% to 8.7%, reflecting estimates of Radius’ weighted average cost of capital. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding shares of Class A Common Stock as of February 28, 2023, as provided by and approved for Goldman Sachs’ use by the management of Radius, using the treasury stock method, to derive a range of illustrative present values per share of Class A Common Stock ranging from $5.35 to $16.11.
Illustrative Present Value of Future Share Price Analysis
Using the Forecasts, Goldman Sachs performed an illustrative analysis of the implied present value of an illustrative future value per share of Class A Common Stock. For this analysis, Goldman Sachs calculated the implied enterprise value of Radius as of December 31 for each of calendar years 2022 through 2025, by applying illustrative cap rates ranging from 4.8% to 6.2% to estimates of Radius’ annualized in-place rent for each of the calendar years 2022 through 2025. This illustrative range of cap rates was derived by Goldman Sachs utilizing its professional judgment and experience, taking into account current and historical cap rates on annualized in-place rent for Radius. Goldman Sachs then subtracted the net debt of Radius for each of calendar years 2022 through 2025 (calculated as debt less cash), as provided by and approved for Goldman Sachs’ use by the management of Radius, from the respective implied enterprise values in order to derive a range of illustrative equity values as of December 31 for Radius for each of calendar years 2022 through 2025. Goldman Sachs then divided these implied equity values by the projected year-end number of fully diluted outstanding shares of Class A Common Stock each of calendar years 2022 through 2025, calculated using information provided by and approved for Goldman Sachs’ use by the management of Radius, to derive a range of implied future values per share of Class A Common Stock. For purposes of this analysis, both stock-based compensation expense and the Series A Founder Preferred Stock annual dividends were treated as share issuances.
Goldman Sachs then discounted these implied future equity values per share of Class A Common Stock to December 31, 2025 using an illustrative discount rate of 11%, reflecting an estimate of Radius’ cost of equity. Goldman Sachs derived such discount rate by application of the CAPM, which requires certain company-specific inputs, including a beta for the company, as well as certain financial metrics for the United States financial markets generally. This analysis resulted in a range of illustrative present values per share of Class A Common Stock of $11.42 to $19.51.
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Premia Paid Analysis
Goldman Sachs reviewed and analyzed, using publicly available information, the acquisition premia for all-cash acquisition transactions announced during the period from January 1, 2013 through February 24, 2023 involving a public company in the TMT sector based in the United States as the target where the disclosed enterprise value for the transaction was greater than $1 billion. For the entire period, using publicly available information, Goldman Sachs calculated the 25th percentile and the 75th percentile premia of the price paid in the 149 transactions relative to the target’s last undisturbed closing stock price prior to announcement of the transaction and the target’s highest closing stock price during the 52-week period prior to the date of the target’s last undisturbed closing stock price. With respect to the target’s last undisturbed closing stock price prior to the announcement of the transaction, this analysis indicated an overall premium of 28%, and a 25th percentile premium of 19% and 75th percentile premium of 46% across the entire period. With respect to the target’s last undisturbed 52-week high closing stock price prior to the announcement of the transaction, this analysis indicated an overall premium of 6%, and a 25th percentile premium of negative 5% and 75th percentile premium of 17% across the entire period. Using this analysis, Goldman Sachs applied a reference range of illustrative premia of 19% to 46% to the undisturbed closing price per share of Class A Common Stock of $11.72 as of February 24, 2023 and calculated a range of implied equity values per share of Class A Common Stock of $13.95 to $17.11.
Historical Stock Trading Analysis
Goldman Sachs reviewed the historical trading prices for shares of Class A Common Stock for the period beginning January 1, 2022 and ending February 28, 2023. In addition, Goldman Sachs analyzed the Merger Consideration to be paid to holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement in relation to (i) the closing price per share of Class A Common Stock on February 24, 2023, (ii) the high and low closing price per share of Class A Common Stock for the 52-week period ended February 24, 2023, (iii) the 30-day VWAP, (iv) the 90-day VWAP, and (v) the closing price per share of Class A Common Stock on November 8, 2022, the date Radius announced its third fiscal quarter earnings.
This analysis indicated that the price per share to be paid to holders of shares of Class A Common Stock pursuant to the Merger Agreement represented:
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a premium of approximately 28.0% based on the closing price per share of Class A Common Stock of $11.72 on February 24, 2023;
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a premium of approximately 13.8% based on the 30-day VWAP per share of Class A Common Stock of $13.18;
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a premium of approximately 30.8% based on the 90-day VWAP per share of Class A Common Stock of $11.46; and
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a premium of approximately 74.6% based on the closing price per share of Class A Common Stock of $8.59 on November 8, 2022, the date Radius announced its third fiscal quarter earnings.
General
The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Goldman Sachs’ opinion. In arriving at its fairness determination, Goldman Sachs considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Goldman Sachs made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the above analyses as a comparison is directly comparable to Radius or the contemplated transaction.
Goldman Sachs prepared these analyses for purposes of Goldman Sachs’ providing its opinion to the Company Board as to the fairness from a financial point of view of the Merger Consideration to be paid to the holders (other than Parent and its affiliates) of shares of Class A Common Stock pursuant to the Merger Agreement. These analyses do not purport to be appraisals nor do they necessarily reflect the prices
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at which businesses or securities actually may be sold. Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, none of Radius, Goldman Sachs or any other person assumes responsibility if future results are materially different from those forecasts.
The Merger Consideration was determined through arm’s-length negotiations between Radius and Parent and was approved by the Company Board. Goldman Sachs did not recommend any specific amount of consideration to Radius or the Company Board or that any specific amount of consideration constituted the only appropriate consideration for the Mergers.
As described above, Goldman Sachs’ opinion to the Company Board was one of many factors taken into consideration by the Company Board in making its determination to approve the Merger Agreement. The foregoing summary does not purport to be a complete description of the analyses performed by Goldman Sachs in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Goldman Sachs attached as Annex C.
Goldman Sachs and its affiliates are engaged in advisory, underwriting, lending and financing, principal investing, sales and trading, research, investment management and other financial and non-financial activities and services for various persons and entities. Goldman Sachs and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of Radius, Parent, any of their respective affiliates and third parties, including Centerbridge, a significant shareholder of Radius, EQT and PSP, each of which is delivering to Parent, through an affiliate, in the case of EQT, and directly, in the case of PSP, an equity commitment letter and a termination equity financing letter, or any of their respective affiliates and portfolio companies, or any currency or commodity that may be involved in the Mergers contemplated by the Merger Agreement. Goldman Sachs has acted as financial advisor to Radius in connection with, and have participated in certain of the negotiations leading to, the Mergers. Goldman Sachs expect to receive fees for its services in connection with the Mergers, all of which are contingent upon consummation of the Mergers, and Radius has agreed to reimburse certain of its expenses arising, and indemnify Goldman Sachs against certain liabilities that may arise, out of its engagement. Goldman Sachs has provided certain financial advisory and/or underwriting services to Radius and/or its affiliates from time to time for which Goldman Sachs Investment Banking has received, and may receive, compensation, including having acted as agent in connection with certain loans of AP WIP ArcCo Investments, LLC, a subsidiary of Radius, in December 2021; as bookrunner with respect to a private placement of Radius’ 2.50% convertible senior notes due 2026, in September 2021 (the “Convertible Notes”); and as placement agent with respect to a private placement of Class A Shares of Radius, in May 2021. During the two-year period ended March 1, 2023, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by Goldman Sachs Investment Banking to Radius and/or its affiliates of approximately $3 million, as determined by Goldman Sachs based on its books and records. Goldman Sachs has also provided certain financial advisory and/or underwriting services to Centerbridge and/or its affiliates and portfolio companies from time to time for which Goldman Sachs Investment Banking has received, and may receive, compensation, including having acted as bookrunner in connection with a term loan to Precisely Holdings, LLC, a portfolio company of Centerbridge, (“Precisely”), in October 2021; and as financial advisor to Precisely, in connection with its sale to Clearlake Capital Group, L.P. and TA Associates, in April 2021. During the two-year period ended March 1, 2023, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by Goldman Sachs Investment Banking to Centerbridge and/or its affiliates of approximately $30 million to $40 million, as determined by Goldman Sachs based on its books and records. Goldman Sachs has also provided certain financial advisory and/or underwriting services to EQT and/or its affiliates and portfolio companies from time to time for which Goldman Sachs Investment Banking has received, and may receive, compensation, including having acted as bookrunner with respect to a secondary accelerated bookbuild offering of shares of Azelis Group NV, a portfolio company of EQT, (“Azelis”), in January 2023; as financial advisor to Facile.it S.p.A., a portfolio company of EQT, in connection with its sale to Silver Lake, in June 2022; as bookrunner with respect to a follow on public offering of shares of common stock of Privia Health Group Inc., a portfolio
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company of EQT, in November 2021; as bookrunner with respect to a term loan to Covanta Holding Corp., a portfolio company of EQT, in November 2021; as financial advisor to SEGRAsm, a portfolio company of EQT, in connection with its sale of its commercial enterprise and carrier business to Cox Communications, Inc., in October 2021; as bookrunner with respect to the initial public offering of shares of Azelis in September 2021 and equity follow-on offering in September 2022; as bookrunner with respect to a term loan to Recipharm AB (publ), a portfolio company of EQT, (“Recipharm”), in March 2021; and as financial advisor to EQT in connection with its acquisition of Recipharm in March 2021. During the two-year period ended March 1, 2023, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by Goldman Sachs Investment Banking to EQT and/or its affiliates of approximately $167 million, as determined by Goldman Sachs based on its books and records. Goldman Sachs has also provided certain financial advisory and/or underwriting services to PSP and/or its affiliates and portfolio companies from time to time for which Goldman Sachs Investment Banking has received, and may receive, compensation. During the two-year period ended March 1, 2023, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by Goldman Sachs Investment Banking to PSP and/or its affiliates of approximately $27 million, as determined by Goldman Sachs based on its books and records. Goldman Sachs may also in the future provide financial advisory and/or underwriting services to Radius, Centerbridge, EQT, PSP and their respective affiliates and, as applicable, portfolio companies, for which Goldman Sachs Investment Banking may receive compensation. Affiliates of Goldman Sachs also may have co-invested with Centerbridge, EQT, and/or PSP and their respective affiliates from time to time and may have invested in limited partnership units of affiliates of Centerbridge, EQT and/or PSP from time to time and may do so in the future.
As the Company Board was aware, concurrent with the issuance of the Convertible Notes, Radius entered into the Capped Call Transactions (as defined below in the section of this proxy statement titled “The Merger Agreement — Company Indebtedness”) with Goldman Sachs and three other counterparties (which we refer to, collectively, as the “capped call counterparties”), each acting as principal for its own account. The Capped Call Transactions consisted of the purchase by Radius of capped call options with respect to, collectively, approximately 11,693,201 shares of Class A Common Stock, the aggregate number of shares of Class A Common Stock underlying the Convertible Notes (at the initial conversion rate of 44.2087 shares of Class A Common Stock per $1,000 in principal amount of the Convertible Notes) (with 40% purchased from Goldman Sachs). The Convertible Notes had an initial strike price equal to $22.62 per share of Class A Common Stock, subject to an initial cap price of $34.80 per share of Class A Common Stock. As of March 27, 2023 100% of the Capped Call Transactions remained outstanding, with a strike price of $22.62 per share of Class A Common Stock and a cap price of $34.80 per share of Class A Common Stock.
The Capped Call Transactions were intended to offset a portion of the potential dilutive effect on Company Stockholders of the conversion of the Convertible Notes and/or any potential cash payment in excess of the principal amount of the Convertible Notes that Radius may make in connection with a cash settlement of the Convertible Notes, in each case, up to the cap price. The Capped Call Transactions, upon the exercise thereof, generally require the capped call counterparties to deliver to Radius a number of shares of Class A Common Stock (and/or in certain circumstances, at Radius’ election, cash) determined based on the excess, if any, of the lower of the cap price and the price of the shares of Class A Common Stock at that time (determined over a period specified in the Capped Call Transactions) over the strike price per share of Class A Common Stock.
The Capped Call Transactions may be adjusted, exercised, cancelled and/or terminated in accordance with their terms in connection with certain events, including the announcement or consummation of the Mergers, which could result in a payment from Goldman Sachs to Radius. In particular, under the terms of the Capped Call Transactions, each of Goldman Sachs and the other capped call counterparties, each acting separately as calculation agent under the Capped Call Transactions to which it is a party, is entitled in certain circumstances to make adjustments to the cap price of the call options to reflect the economic effect of the announcement of such events (including the Mergers) on the Capped Call Transactions. In addition, each of Goldman Sachs and the other capped call counterparties may, each acting separately as the calculation agent, determining party or otherwise as principal under the Capped Call Transactions to which it is a party, determine such adjustments in respect of such Capped Call Transactions in accordance with their terms, including on or following consummation or abandonment of such events. In its capacity as
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calculation agent, all actions or exercises of judgment by Goldman Sachs pursuant to the terms of the Capped Call Transactions to which it is a party must be performed in good faith and a commercially reasonable manner.
As a result of the Capped Call Transactions, the capped call counterparties are expected to have market exposure to the price of the shares of Class A Common Stock. It is ordinary practice of the capped call counterparties to engage in hedging activities to limit their respective market exposure to the price of the stock underlying privately negotiated equity derivative transactions with issuers of such stock, such as the Capped Call Transactions. In connection with the Capped Call Transactions to which it is a party, Goldman Sachs (and its affiliates) have engaged, and will continue to engage, in accordance with applicable law in hedging and other market transactions (which may include the entering into or unwinding of various derivative transactions with respect to Class A Common Stock) that are generally intended to substantially neutralize Goldman Sachs’ exposure as a result of the Capped Call Transactions to which it is a party to changes in the price per share of Class A Common Stock. Such hedging activity is at Goldman Sachs’ own risk and may result in a gain or loss to Goldman Sachs that may be greater than or less than the initial expected contractual benefit to Goldman Sachs under the Capped Call Transactions to which it is a party. The amount of any such gain or loss will not be known until the applicable Capped Call Transactions have been exercised, expired or terminated in accordance with their terms and Goldman Sachs shall have completed all of its hedge unwind activities. To mitigate the exposure from the Capped Call Transactions, as of March 27, 2023, Goldman Sachs held a net long economic position of approximately one million shares of Class A Common Stock and was long and short a number of various other options on Class A Common Stock.
Goldman Sachs provided to management of Radius, for the information of the Company Board, materials that summarized, based on theoretical models, the potential effects of the announcement and of the consummation of an acquisition of Radius on the Capped Call Transactions to which Goldman Sachs is a counterparty. The materials included preliminary illustrative analyses by Goldman Sachs’ Investment Banking Division for a range of stated assumptions regarding takeout prices for shares of Class A Common Stock and volatilities, as well as based on other reasonable assumptions. In accordance with industry practice, Goldman Sachs maintains customary institutional information barriers reasonably designed to prevent the unauthorized disclosure of confidential information by personnel in its Investment Banking Division to the personnel in its Securities Division who are undertaking hedging and other market transactions with respect to Goldman Sachs’ Capped Call Transactions. In connection with the preparation of presentations to senior management of Radius and the Company Board, personnel in Goldman Sachs’ Investment Banking Division, including the representatives of Goldman Sachs who have advised Radius in connection with the Mergers, from time to time, have received or may receive input from personnel in Goldman Sachs’ Securities Division into how to model, or reports of historical measures or estimates of, Goldman Sachs’ and/or Goldman Sachs’ Investment Banking Division’s profit and/or loss over certain measurement periods related to the Capped Call Transactions.
Goldman Sachs has advised Radius that as of March 27, 2023, Goldman Sachs expected to realize a net gain of up to approximately $7 million with respect to the Capped Call Transactions as a result of the merger, after giving effect to its hedging activities based on the ordinary hedging practices described above and based on a range of stated assumptions, including volatilities and other reasonable assumptions. The amount of any such gain will not be known until the Capped Call Transactions have been exercised, expired or terminated in accordance with their terms and Goldman Sachs and its affiliates have completed all of their unwind activities, and such amount may differ from the estimates provided above.
The indenture governing the Convertible Notes and the forms of confirmations containing the terms of the Capped Call Transactions were included as exhibits to Radius’ Current Report on Form 8-K filed with the SEC on September 7, 2021, which contains additional disclosure regarding the Convertible Notes and a description of the Capped Call Transactions. All references in this section of this proxy statement to share counts, conversion prices, cap prices and strike prices are subject to adjustment from time to time in accordance with the terms of the confirmations relating to the Capped Call Transactions.
The Company Board selected Goldman Sachs as its financial advisor because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the Mergers. Pursuant to a letter agreement dated September 11, 2022, Radius engaged Goldman Sachs to act as its
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financial advisor in connection with the contemplated transaction. The engagement letter between Radius and Goldman Sachs provides for a transaction fee of $8,000,000 all of which is contingent upon consummation of the Mergers. In addition, Radius has agreed to reimburse Goldman Sachs for certain of its expenses, including attorneys’ fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including certain liabilities under the federal securities laws.
Opinion of Barclays
The Transaction Committee engaged Barclays to act as its financial advisor in connection with evaluating a strategic transaction outside of the Company’s ordinary course of business, including a possible sale of the Company, pursuant to an engagement letter dated August 24, 2022. On March 1, 2023, Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Transaction Committee that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, from a financial point of view, the Merger Consideration to be received by the holders of shares of Class A Common Stock (other than the executive officers of the Company and the Excluded Stockholders) in the Mergers is fair to such holders.
The full text of Barclays’ written opinion is attached as Annex D to this proxy statement. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety. The following is a summary of Barclays’ opinion and the methodology that Barclays used to render its opinion. This summary is qualified in its entirety by reference to the full text of the opinion.
Barclays’ opinion, the issuance of which was approved by Barclays’ Valuation and Fairness Opinion Committee, is addressed to the Transaction Committee, addresses only the fairness, from a financial point of view, of the Merger Consideration to be received by the holders of shares of Class A Common Stock (other than the executive officers of the Company and the Excluded Stockholders) in the Mergers to such holders and does not constitute a recommendation to any Company Stockholder as to how such holder should vote with respect to the Mergers or any other matter. The terms of the Mergers were determined through arm’s-length negotiations between the Company and Parent and were recommended by the Transaction Committee and unanimously approved by the Company Board. Barclays did not recommend any specific form of consideration to the Transaction Committee or the Company or that any specific form of consideration constituted the only appropriate consideration for the Mergers. Barclays was not requested to address, and its opinion does not in any manner address, the Company’s underlying business decision to proceed with or effect the Mergers, the likelihood of the consummation of the Mergers, or the relative merits of the Mergers as compared to any other transaction or business strategy in which the Company may engage. In addition, Barclays expressed no opinion on, and its opinion does not in any manner address, the fairness of the amount or the nature of any compensation to any officers, directors or employees of any parties to the Mergers, or any class of such persons, relative to the consideration to be received by the Company Stockholders in the Mergers. No limitations were imposed by the Transaction Committee upon Barclays with respect to the investigations made or procedures followed by it in rendering its opinion.
In arriving at its opinion, Barclays, among other things:
•
reviewed and analyzed the Merger Agreement, dated as of March 1, 2023, and the specific terms of the Mergers;
•
reviewed and analyzed publicly available information concerning the Company that Barclays believed to be relevant to its analysis, including the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2022, June 30, 2022 and September 30, 2022;
•
reviewed and analyzed financial and operating information with respect to the business, operations and prospects of the Company furnished to Barclays by the Company, including financial projections of the Company prepared by management of the Company;
•
reviewed and analyzed a trading history of the Company’s Class A Common Stock from October 5, 2020 to February 28, 2023 and a comparison of that trading history with those of other companies that Barclays deemed relevant;
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•
reviewed and analyzed a comparison of the historical financial results and present financial condition of the Company with those of other companies that Barclays deemed relevant;
•
had discussions with management of the Company concerning its business, operations, assets, liabilities, financial condition and prospects; and
•
has undertaken such other studies, analyses and investigations as Barclays deemed appropriate.
In arriving at its opinion, Barclays assumed and relied upon the accuracy and completeness of the financial and other information used by Barclays without any independent verification of such information (and had not assumed responsibility or liability for any independent verification of such information). Barclays also relied upon the assurances of management of the Company that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the financial projections of the Company, upon the advice of the Company, Barclays assumed that such projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of management of the Company as to the Company’s future financial performance and that the Company would perform substantially in accordance with such projections. In arriving at its opinion, Barclays assumed no responsibility for and expressed no view as to any such projections or estimates or the assumptions on which they were based. In arriving at its opinion, Barclays did not conduct a physical inspection of the properties and facilities of the Company and did not make or obtain any evaluations or appraisals of the assets or liabilities of the Company. In addition, Barclays was not authorized by the Transaction Committee to solicit, and did not solicit, any indications of interest from any third party with respect to the purchase of all or a part of the Company’s business. Barclays’ opinion was necessarily based upon market, economic and other conditions as they existed on, and could be evaluated as of, the date of its opinion. Barclays assumed no responsibility for updating or revising its opinion based on events or circumstances that may have occurred after the date of its opinion.
Barclays assumed the accuracy of the representations and warranties contained in the Merger Agreement and all the agreements related thereto. Barclays also assumed, upon the advice of the Company, that all material governmental, regulatory and third-party approvals, consents and releases for the Mergers would be obtained within the constraints contemplated by the Merger Agreement and that the Mergers will be consummated in accordance with the terms of the Merger Agreement without waiver, modification or amendment of any material term, condition or agreement thereof. Barclays did not express any opinion as to any tax or other consequences that might result from the Mergers, nor did Barclays’ opinion address any legal, tax, regulatory or accounting matters, as to which Barclays understood the Company had obtained such advice as it deemed necessary from qualified professionals.
In connection with rendering its opinion, Barclays performed certain financial, comparative and other analyses as summarized below. In arriving at its opinion, Barclays did not ascribe a specific range of values to the shares of Class A Common Stock but rather made its determination as to fairness, from a financial point of view, of the Merger Consideration to be received by the holders of shares of Class A Common Stock (other than the executive officers of the Company and the Excluded Stockholders) in the Mergers to such holders on the basis of various financial and comparative analyses. The preparation of a fairness opinion is a complex process and involves various determinations as to the most appropriate and relevant methods of financial and comparative analyses and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to summary description.
In arriving at its opinion, Barclays did not attribute any particular weight to any single analysis or factor considered by it but rather made qualitative judgments as to the significance and relevance of each analysis and factor relative to all other analyses and factors performed and considered by it and in the context of the circumstances of the particular transaction. Accordingly, Barclays believes that its analyses must be considered as a whole, as considering any portion of such analyses and factors, without considering all analyses and factors as a whole, could create a misleading or incomplete view of the process underlying its opinion.
Summary of Material Financial Analyses
The following is a summary of the material financial analyses used by Barclays in preparing its opinion to the Transaction Committee. The summary of Barclays’ analyses and reviews provided below is not a
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complete description of the analyses and reviews underlying Barclays’ opinion. The preparation of a fairness opinion is a complex process involving various determinations as to the most appropriate and relevant methods of analysis and review and the application of those methods to particular circumstances, and, therefore, is not readily susceptible to summary description.
For the purposes of its analyses and reviews, Barclays made numerous assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of the Company or any other parties to the Mergers. No company, business or transaction considered in Barclays’ analyses and reviews is identical to the Company, OpCo, Parent, Merger Sub I, Merger Sub II or the Mergers, and an evaluation of the results of those analyses and reviews is not entirely mathematical. Rather, the analyses and reviews involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the acquisition, public trading or other values of the companies, businesses or transactions considered in Barclays’ analyses and reviews. None of the Company, OpCo, Parent, Merger Sub I, Merger Sub II, Barclays or any other person assumes responsibility if future results are materially different from those discussed. Any estimates contained in these analyses and reviews and the ranges of valuations resulting from any particular analysis or review are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of companies, businesses or securities do not purport to be appraisals or reflect the prices at which the companies, businesses or securities may actually be sold. Accordingly, the estimates used in, and the results derived from, Barclays’ analyses and reviews are inherently subject to substantial uncertainty.
The summary of the financial analyses and reviews summarized below includes information presented in tabular format. In order to fully understand the financial analyses and reviews used by Barclays, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses and reviews. Considering the data in the tables below without considering the full description of the analyses and reviews, including the methodologies and assumptions underlying the analyses and reviews, could create a misleading or incomplete view of Barclays’ analyses and reviews.
Discounted Cash Flow Analysis
In order to estimate the present value of the Class A Common Stock, Barclays performed a discounted cash flow analysis of the Company. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset by calculating the “present value” of estimated future cash flows of the asset. “Present value” refers to the current value of future cash flows or amounts and is obtained by discounting those future cash flows or amounts by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.
To calculate the estimated enterprise value (“EV”) of the Company using the discounted cash flow method, Barclays added the Company’s projected after-tax unlevered free cash flows for fiscal years 2023 through 2032 based on the December 31, 2023 – 2032 Management Forecasts to the “terminal value” of the Company as of the end of fiscal year 2032, and discounted such amount to its present value using a mid-year convention and a range of selected discount rates. The after-tax unlevered free cash flows were calculated by taking earnings before interest, taxes, depreciation and amortization and subtracting cash taxes and capital expenditures. The residual value of the Company at the end of the forecast period, or “terminal value,” was estimated by selecting a range of perpetuity growth rates ranging from 3.0% to 3.5%, which were derived by Barclays using its professional judgment and experience. The range of after-tax discount rates of 8.0% to 8.5% was selected based on an analysis of the weighted average cost of capital of the Company and the selected comparable companies. Barclays then calculated a range of implied prices per share of Class A Common Stock by subtracting actual net debt as of December 31, 2022 from the estimated EV using the discounted cash flow method and dividing such amount by the fully diluted number of shares of Company Capital Stock, as of February 28, 2023, based on information provided by management of the Company (excluding the impact of potential dividends elected to be paid in stock to holders of shares of Series A Founder Preferred Stock). The following summarizes the result of these calculations:
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| | | |
Perpetuity Growth Rate
|
| |
Implied Equity Value per Share of
Class A Common Stock |
|
|
Discount Rates of 8.0% – 8.5%
|
| |
3.0% – 3.5%
|
| |
$6.96 – $15.10
|
|
Barclays noted that on the basis of the discounted cash flow analysis, the Merger Consideration was within the range of implied values per share of Class A Common Stock calculated using the December 31, 2023 – 2032 Management Forecasts.
Selected Comparable Company Analysis
In order to assess how the public market values shares of similar publicly traded companies and to provide a range of relative implied equity values per share of Class A Common Stock by reference to those companies, Barclays reviewed and compared specific financial and operating data relating to the Company with selected companies that Barclays, based on its experience in the telecom infrastructure and real estate industries, deemed comparable to the Company. The selected comparable companies with respect to the Company were:
Tower Companies
•
American Tower Corporation
•
Crown Castle Inc.
•
SBA Communications Corporation
•
Telesites, S.A.B de C.V.
•
INWIT S.p.A.
•
Cellnex Telecom, S.A.
•
Vantage Towers AG
Data Center Companies
•
Digital Realty Trust, Inc.
•
Equinix, Inc.
•
Cyxtera Technologies, Inc.
Triple-Net Lease Real Estate Interest Trusts (“REITs”)
•
Realty Income Corporation
•
National Retail Properties, Inc.
•
Spirit Realty Capital, Inc.
•
Agree Realty Corporation
•
Essential Properties Realty Trust, Inc.
•
The Necessity Retail REIT, Inc.
•
Four Corners Property Trust, Inc.
•
Getty Realty Corp.
•
NETSTREIT Corp.
•
Gladstone Commercial Corporation
•
W.P. Carey Inc.
•
Broadstone Net Lease, Inc.
•
LXP Industrial Trust
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•
Global Net Lease, Inc.
•
Industrial Logistics Property Trust
•
Orion Office REIT Inc.
•
One Liberty Properties, Inc.
•
VICI Properties Inc. / VICI Properties L.P.
•
Gaming and Leisure Properties, Inc.
•
EPR Properties
•
Safehold Inc.
Barclays calculated and compared various financial multiples and ratios of the Company and the selected comparable companies. As part of its selected comparable company analysis, Barclays calculated and analyzed (a) each tower company’s ratio of EV to (i) its 2022 actual or estimated (“2022A/E”) and 2023 estimated (“2023E”) tower cash flows (“TCF”) and (ii) its 2022A/E and 2023E earnings before interest, taxes, depreciation and amortization and adjusted for non-recurring items (“EBITDA”), (b) each data center company’s ratio of EV to its 2022A/E and 2023E EBITDA and (c) each triple-net lease REIT’s implied capitalization rate, defined as the ratio of next twelve months’ (“NTM”) net operating income to EV. The EV of each company was obtained by adding its short- and long-term debt to the sum of the market value of its common equity, the value of any preferred stock (at liquidation value) and the book value of any minority interest, finance leases, asset retirement obligations and subtracting its cash and cash equivalents, as applicable and based on the relevant financial reporting standards. All of these calculations were performed, and based on publicly available financial data (including FactSet, Green Street, SNL and Bloomberg) and closing prices, as of February 28, 2023, the last trading date prior to the delivery of Barclays’ oral opinion. The results of this selected comparable company analysis are summarized below:
Tower Companies
| | | |
EV /
2022A/E TCF |
| |
EV /
2023E TCF |
| |
EV /
2022A/E EBITDA |
| |
EV /
2023E EBITDA |
| ||||||||||||
|
Mean
|
| | | | 19.2x | | | | | | 18.2x | | | | | | 21.0x | | | | | | 19.1x | | |
|
Median
|
| | | | 18.9x | | | | | | 18.1x | | | | | | 22.3x | | | | | | 19.3x | | |
Data Center Companies
| | | |
EV /
2022A/E EBITDA |
| |
EV /
2023E EBITDA |
| ||||||
|
Mean
|
| | | | 17.5x | | | | | | 16.1x | | |
|
Median
|
| | | | 19.6x | | | | | | 18.3x | | |
Triple-Net Lease REITs
| | | |
Implied
Capitalization Rate |
| |
Inverse Implied
Capitalization Rate |
| ||||||
|
Mean
|
| | | | 6.7% | | | | | | 15.6x | | |
|
Median
|
| | | | 6.4% | | | | | | 15.6x | | |
Barclays selected the comparable companies listed above because of similarities in one or more business or operating characteristics with the Company. However, because of the inherent differences between the business, operations and prospects of the Company and those of the selected comparable companies, Barclays believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the selected comparable company analysis. Accordingly, Barclays also made qualitative judgments concerning differences between the business, financial and operating characteristics and prospects of the Company and the selected comparable companies that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis. These qualitative judgments
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related primarily to the differing industries, geographies, sizes, growth prospects, profitability levels and degree of operational risk between the Company and the companies included in the selected company analysis. Based upon these judgments, Barclays selected a range of 15.5x to 17.5x multiples of EV to 2023E ground cash flows (“GCF”) for the Company and applied such range to the December 31, 2023 – 2032 Management Forecasts to calculate a range of implied prices per share of Class A Common Stock. The following summarizes the result of these calculations:
| | | |
Low
|
| |
High
|
| ||||||
|
Implied equity value per share of Class A Common Stock
|
| | | $ | 12.51 | | | | | $ | 15.36 | | |
Barclays noted that on the basis of the selected comparable company analysis, the Merger Consideration was within the range of implied values per share of Class A Common Stock calculated using the December 31, 2023 – 2032 Management Forecasts.
Other Factors
Barclays also reviewed and considered other factors, which were not considered part of its financial analyses in connection with rendering its advice, but were references for informational purposes, including, among other things, the illustrative present value of future share price analysis, equity research price targets analysis and historical share price analysis described below.
Illustrative Present Value of Future Share Price Analysis
Barclays performed an analysis of the implied present value of an illustrative future value per share of Class A Common Stock, which is designed to provide an indication of the present value of the theoretical future value of a company’s equity as a function of such company’s financial projections and valuation multiples. Barclays first calculated the implied future EV of the Company for fiscal years ending December 31, 2023 through December 31, 2030 by applying ratios of multiples of the Company’s EV to NTM GCF ranging from 15.5x to 17.5x to NTM GCF estimates for the Company as reflected in the December 31, 2023 – 2032 Management Forecasts for each of the fiscal years 2023 through 2030. The illustrative EV to NTM GCF multiple estimates were derived by Barclays utilizing its professional judgment and experience, taking into account the results from the selected comparable companies analysis and the EV to NTM GCF multiples for the Company as of February 28, 2023. Barclays then calculated a range of implied prices per share of Class A Common Stock based on the fully diluted number of shares of Company Capital Stock as of February 28, 2023, as provided by management of the Company (including the dilutive effect of potential stock dividends to holders of shares of Series A Founder Preferred Stock and corresponding distributions with respect to the Series A Rollover Profits Units).
Utilizing a range of discount rates of 12.4% to 13.3% based on an analysis of the cost of equity of the Company, Barclays then derived a range of implied present values per share for Class A Common Stock by discounting to present value the implied future values per share of Class A Common Stock. The following table presents the results of the analysis of the implied present value of the illustrative future value per share of Class A Common Stock.
| | | |
Selected NTM EV / GCF
Multiple Range |
| |
Implied Equity Value per Share of
Class A Common Stock |
| ||||||
|
Discount Rate of 12.4% – 13.3%
|
| | | | 15.5x – 17.5x | | | | | $ | 8.81 – $15.09 | | |
The illustrative present value of future share price analysis for the Company was used for informational purposes only and was not included in Barclays’ financial analyses.
Equity Research Price Targets Analysis
Barclays reviewed publicly available one-year forward price targets for the Class A Common Stock prepared and published by equity research firms that covered the Company as of February 28, 2023. Barclays noted that the range of low to high one-year forward share price targets as of February 28, 2023 was $13.00 to $18.00 per share. Barclays also reviewed publicly available one-year forward price targets for the Class A Common Stock prepared and published by equity research firms that covered the Company as of
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February 28, 2023, by deriving in each case, the implied equity value based on the number of shares outstanding at the end of the third quarter of 2022 mentioned in the applicable equity research firm report, then adjusted based on the fully diluted number of shares of Company Capital Stock as of February 28, 2023, as provided by management of the Company. Barclays noted that the range of low to high one-year forward share price targets as of February 28, 2023, as so adjusted, was $11.46 to $16.94 per share. The price targets published by the equity research firms did not necessarily reflect current market trading prices for shares of Class A Common Stock and these estimates are subject to uncertainties, including the future financial performance of the Company and future market conditions. The equity research price targets analysis for the Company was used for informational purposes only and was not included in Barclays’ financial analyses.
Historical Share Price Analysis
To illustrate the trend in the historical trading prices of shares of Class A Common Stock, Barclays considered historical data with regard to the trading prices of Class A Common Stock for the period from February 28, 2022 to February 28, 2023. Barclays noted that during the period from February 28, 2022 to February 28, 2023, the closing price of the Class A Common Stock ranged from $7.97 to $16.52. The historical share price analysis for the Company was used for informational purposes only and was not included in Barclays’ financial analyses.
General
Barclays is an internationally recognized investment banking firm and, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. The Transaction Committee selected Barclays because of its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions generally, as well as substantial experience in transactions comparable to the Mergers.
Barclays is acting as financial advisor to the Transaction Committee in connection with the Mergers. As compensation for its services in connection with the Mergers, the Company paid Barclays a fee of $2,500,000 upon the delivery of Barclays’ opinion, which is referred to as the “Opinion Fee”. The Opinion Fee was not contingent upon the conclusion of Barclays’ opinion or the consummation of the Mergers. The Company may pay Barclays an additional discretionary fee of up to $1,000,000 based upon the Transaction Committee’s assessment of Barclays’ work in connection with its engagement. In addition, the Company has agreed to reimburse Barclays for a portion of its reasonable out-of-pocket expenses incurred in connection with the Mergers and to indemnify Barclays for certain liabilities that may arise out of its engagement by the Transaction Committee and the rendering of Barclays’ opinion. Barclays has performed various investment banking services for the Company in the past, and expects to perform such services in the future, and has received, and expects to receive, customary fees for such services. In the past two years, Barclays has not earned material investment banking fees from the Company. Further, Barclays and its affiliates in the past have provided, currently are providing, or in the future may provide, investment banking services to the Excluded Stockholders and have received or in the future may receive customary fees for rendering such services. In the past two years, Barclays has not earned investment banking fees from the Excluded Stockholders. In addition, Barclays and its affiliates in the past have provided, currently are providing, or in the future may provide, investment banking services to EQT and PSP, and certain of their respective affiliates and portfolio companies and have received or in the future may receive customary fees for rendering such services, including (i) having acted or acting as financial advisor to EQT, PSP and certain of their respective portfolio companies and affiliates in connection with certain mergers and acquisition transactions; (ii) having acted or acting as arranger, bookrunnner and/or lender for EQT, PSP and certain of their respective portfolio companies and affiliates in connection with the financing for various acquisition transactions; and (iii) having acted or acting as underwriter, initial purchaser and placement agent for various equity and debt offerings undertaking by EQT, PSP and certain of their respective portfolio companies and affiliates. During the period from January 1, 2021 through March 1, 2023, Barclays and its affiliates received aggregate fees for such services of approximately $80 million from EQT and its portfolio companies
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and affiliates and aggregate fees for such services of approximately $1 million from PSP and its portfolio companies and affiliates, in each case as determined by Barclays based on its books and records.
Barclays and its subsidiaries and affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other financial and non-financial services. In the ordinary course of its business, Barclays and its affiliates may actively trade and effect transactions in the equity, debt and/or other securities (and any derivatives thereof) and financial instruments (including loans and other obligations) of the Company, EQT and PSP and certain of the portfolio companies and/or affiliates of EQT and PSP for its own account and for the accounts of its customers and, accordingly, may at any time hold long or short positions and investments in such securities and financial instruments.
Certain Financial Forecasts
Other than providing an annual outlook with respect to Acquisition Capex (as defined below), including the annual outlook with respect to Acquisition Capex included in the Company’s press release, dated March 1, 2023, which was attached as an exhibit to the Company’s Current Report on Form 8-K, furnished to the SEC on March 2, 2023, the Company does not, as a matter of course, publicly disclose forecasts or internal projections as to future performance, or results of operations, earnings or other results, due to, among other things, the unpredictability of the underlying assumptions and estimates. In August 2022, in connection with the strategic review process, senior management of the Company provided the Company Board and the Transaction Committee, as well as Citi, Goldman Sachs and Barclays, with certain non-public, unaudited prospective financial information for the years ending June 30, 2022 through 2032 (the “June 30, 2022 – 2032 Management Forecasts”). In February 2023, senior management of the Company updated the June 30, 2022 – 2032 Management Forecasts based on the Company’s actual performance through the fiscal year ended December 31, 2022 and senior management’s best then currently available estimates and assumptions with respect to the future financial performance of the Company on a standalone basis (such updated forecasts, the “December 31, 2023 – 2032 Management Forecasts” and, together with the June 30, 2022 Management Forecasts, the “Management Forecasts”). Senior management of the Company provided the December 31, 2023 – 2032 Management Forecasts to the Company Board and the Transaction Committee, in connection with their respective evaluations of the proposed transaction, and to Citi, Goldman Sachs and Barclays, in connection with each firm’s respective financial analysis and fairness opinion summarized in the sections of this proxy statement titled “— Opinion of Citi”, “— Opinion of Goldman Sachs” and “— Opinion of Barclays”. The Company is including a summary of the Management Forecasts to provide Company Stockholders with access to information that was made available to the Company Board and the Transaction Committee, as well as each of Citi, Goldman Sachs and Barclays, as described above.
The Company Board and the Transaction Committee reviewed the Management Forecasts and, following discussions with Company management, the Company Board authorized and instructed Citi and Goldman Sachs, and the Transaction Committee authorized and instructed Barclays, to use and rely upon the December 31, 2023 – 2032 Management Forecasts for purposes of their respective financial analyses and fairness opinions summarized in the sections of this proxy statement titled “— Opinion of Citi”, “— Opinion of Goldman Sachs” and “— Opinion of Barclays”. Citi, Goldman Sachs and Barclays were not authorized to, and did not use, the June 30, 2022 – 2032 Management Forecasts for purposes of their respective financial analyses and fairness opinions summarized in the sections of this proxy statement titled “— Opinion of Citi”, “— Opinion of Goldman Sachs” and “— Opinion of Barclays”. Senior company management modeled each of the Management Forecasts based on its best then currently available estimates and assumptions with respect to the future financial performance of the Company on a standalone basis. The Management Forecasts were based upon certain financial, operating and commercial assumptions developed solely using the information available to management of the Company at the time the Management Forecasts were created.
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The following tables summarize the Management Forecasts, as described above:
| | | |
June 30, 2022 – 2032 Management Forecast
Years Ending June 30, |
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
$ in millions
|
| |
2022E
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |
2026E
|
| |
2027E
|
| |
2028E
|
| |
2029E
|
| |
2030E
|
| |
2031E
|
| |
2032E
|
| |||||||||||||||||||||||||||||||||
|
Annualized In-Place Rents(1)
|
| | | $ | 136 | | | | | $ | 174 | | | | | $ | 213 | | | | | $ | 246 | | | | | $ | 279 | | | | | $ | 307 | | | | | $ | 336 | | | | | $ | 366 | | | | | $ | 397 | | | | | $ | 429 | | | | | $ | 462 | | |
|
Ground Cash Flow(2)
|
| | | | 134 | | | | | | 153 | | | | | | 191 | | | | | | 226 | | | | | | 258 | | | | | | 288 | | | | | | 316 | | | | | | 345 | | | | | | 375 | | | | | | 406 | | | | | | 439 | | |
|
Adjusted EBITDA(3)
|
| | | | 35 | | | | | | 71 | | | | | | 103 | | | | | | 149 | | | | | | 180 | | | | | | 220 | | | | | | 246 | | | | | | 273 | | | | | | 301 | | | | | | 330 | | | | | | 360 | | |
|
Acquisition Capex(4)
|
| | | | 495 | | | | | | 500 | | | | | | 500 | | | | | | 400 | | | | | | 400 | | | | | | 300 | | | | | | 300 | | | | | | 300 | | | | | | 300 | | | | | | 300 | | | | | | 300 | | |
| | | |
December 31, 2023 – 2032 Management Forecasts
Years Ending December 31, |
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
$ in millions
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |
2026E
|
| |
2027E
|
| |
2028E
|
| |
2029E
|
| |
2030E
|
| |
2031E
|
| |
2032E
|
| ||||||||||||||||||||||||||||||
|
Annualized In-Place
Rents(1) |
| | | $ | 200 | | | | | $ | 242 | | | | | $ | 278 | | | | | $ | 315 | | | | | $ | 347 | | | | | $ | 379 | | | | | $ | 413 | | | | | $ | 448 | | | | | $ | 484 | | | | | $ | 522 | | |
|
Ground Cash Flow(2)
|
| | | | 170 | | | | | | 212 | | | | | | 250 | | | | | | 285 | | | | | | 318 | | | | | | 349 | | | | | | 380 | | | | | | 413 | | | | | | 447 | | | | | | 483 | | |
|
Adjusted EBITDA(3)
|
| | | | 76 | | | | | | 111 | | | | | | 160 | | | | | | 193 | | |||||||||||||||||||||||||||||||||||||